State v Amonea [2012] PGNC 66; N4673 (16 May 2012)

N4673

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 295 OF 2011

THE STATE

V

JACOB AMONEA

Waigani: Makail, J
2012: 16th May

CRIMINAL LAW - Practice & Procedure - Motion to quash indictment - Grounds of - Defective indictment - Property not belonging to complainant - Meaning of property and ownership - Given wide interpretation - Includes person with equitable interest - Criminal Code, Ch 262 - Sections 383A(1)(a),(2)&(3)(d) & 558.

Facts

Following the presentation of the indictment charging the accused with one count of misappropriation under 383A(1)(a)&(2) of the Criminal Code, Ch 262, the defence applied to quash the indictment on ground that it was defective. It made the application under section 558 of the Criminal Code, Ch 262. The defence said that the property described as K25,000.00 belonging to Bank of South Pacific Limited in the indictment and allegedly misappropriated by the accused did not belong to Bank of South Pacific Limited. It belonged to a company known as Hides Development Services Limited. The State opposed the motion and relied on Sub-section 3(d) of section 383A of the Criminal Code, Ch 262. It provides that, "For the purpose of this section - (d) persons to whom property belongs includes the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it".

Held:

1. On a charge of misappropriation under Sub-section (1)(a) of section 383A, ownership of the property is one of the elements of the offence and the State bears the onus of proving it.

2. Sub-section 3(d) of section 383A is in very clear terms. According to that Sub-section, ownership of a property is given a wide interpretation and may include any person having an "equitable" interest in the property.

3. The fact that the Bank of South Pacific Limited was holding the money on behalf of Hides Development Services Limited when it was allegedly misappropriated by the accused, it had an "equitable" interest in the property and was entitled to pursue the complaint against him.

4. The motion to quash the indictment as being defective was misconceived and was dismissed.

Cases Cited:

Nil

Counsel:

Mrs L Kuvi, for the State
Mr R Simbil with Mr R Pachichi, for the Accused

RULING ON MOTION TO QUASH INDICTMENT

16th May, 2012

1. MAKAIL, J: Following the presentation of the indictment charging the accused with one count of misappropriation under 383A(1)(a)&(2) of the Criminal Code, Ch 262, the defence applied to quash the indictment on ground that it is defective. It made the application under section 558 of the Criminal Code, Ch 262. This provision gives the Court power to quash an indictment if the indictment is calculated to prejudice or embarrass the accused in his defence to the charge or is formally defective.

2. The defence says that the property described as K25,000.00 belonging to Bank of South Pacific Limited in the indictment and allegedly misappropriated by the accused does not belong to Bank of South Pacific Limited. It belonged to a company known as Hides Development Services Limited. That was the basis of the accused's charge and subsequent committal to stand trial in the National Court. The State says otherwise and relied on Sub-section 3(d) of section 383A of the Criminal Code, Ch 262. It provides that, "For the purpose of this section - (d) persons to whom property belongs includes the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it". On this authority, it submits, the Bank of South Pacific Limited has an "equitable" interest in the property as it held that sum of money on behalf of Hides Development Services Limited when it was allegedly misappropriated by the accused.

3. On a charge of misappropriation under Sub-section (1)(a) of section 383A, ownership of the property is one of the elements of the offence and the State bears the onus of proving it. In my view, the defence submission is misconceived. Sub-section 3(d) of section 383A is in very clear terms. According to that Sub-section, ownership of a property is given a wide interpretation and may include any person having an "equitable" interest in the property. I am satisfied the fact that the Bank of South Pacific Limited was holding the money on behalf of Hides Development Services Limited when it was allegedly misappropriated by the accused, it has an "equitable" interest in the property and is entitled to pursue the complaint against him.

4. The motion to quash the indictment as being defective is misconceived and is dismissed.

Ruling accordingly.

____________________________________
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused