State v Ningo (No.2) [2013] PGNC 253; N5078 (5 February 2013)

N5078

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. NO. 572, 573 & 574 OF 2011

THE STATE

V

HENRY NINGO

(N0.2)

Kokopo: Lenalia, J.
2012: 7th December
2013:5th February

CRIMINAL LAW – Charges of Misappropriation – Two counts – Decision on verdict – Criminal Code Sections 383A (1) (2).

CRIMINAL LAW – Evidence on trial – Prosecution evidence – Defence evidence – Possibility of monies being received by Tobarip United Church & Karavia No.1 Local Church – Verdict of not guilty.

Cases cited.

Brian Kindi Lawi v The State [1987] PNGLR 183
The State v Napilye Kuri [1994] PNGLR 371
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Natuwohala Laumadava [1994] PNGLR 291.
The State-v-Jim Kendi (No.2) (17.4. 2007) Unreported Judgment CR.No.1272 of 2003

Counsel

A. Bray, for the State
W. Donald, for the Accused

5th February, 2013

1. LENALIA, J: The accused was indicted with five counts of misappropriation of an amount of K83, 730.00, the property of the PNG Gaming Control Board. The State's evidence establishes that, on the request of the accused and Pastor Wilson Sarak of Tobarip United Church, the National Gaming Control Board drew out a Cheque No.349428 made payable to Tobarip United Church. The cheque dated 29th April 2002 was made out and the beneficiary was Tobarip United Church.

2. The purpose of advancing the funds was for assisting various churches in the Gazelle District. (See statement dated 13th January 2011by Flex Diapong). Flex Diapong was then the Director of the Community Benefit Fund in the office of the National Gaming Control Board (NGCB).

3. Out of the above amount, twenty-two (22) bank cheques were made out to various churches in the District. (See Exhibit 8(a)(b)(c) and (d) and for copies of the cheques see Exhibits 9 – 31). The State's allegation is that, out of the above amount, the accused did not account for various sums charged in the five counts in the indictment.

4. Amounts Charged on the indictment are as follows:

Count 1. K17, 836.00

Count 2. K2, 000.00

Count 3. K2, 000.00

Count 4. K1, 000.00

Count 5. K8,000.00

5. After the State's case was completed on 9th November 2012, Mr. Donald made a submission of 'no case to answer' on the principles enunciated in the case The State-v-Paul Kundi Rape [1976] PNGLR 96. I handed down the ruling on 20th of that month in which the Court upheld the submission in relation to Counts 2, 3 and 5 and that there was a case for him to answer on counts 1 and 4.

State's Evidence

6. Six (6) witnesses were called by the prosecution counsel. Ben Rang was the first witness. He is the biological brother of the accused and he is an elder of Tobarip United Church.

7. Sometime in the year 2003, Ben was made the Chairman of that church. His evidence is that, while in that office, he was informed about the money that came through the accused for churches in the Gazelle District. He recalls that in 2003, the accused approached him and asked him to open up a church account with Westpac Bank so he could deposit money into it.

8. So they arranged to go to the bank. When they came to the bank and asked if they could open up an account, the bank refused to open up an account since the Church did not authorize such transaction. He then gave the cheque back to accused. He said, after the accused was arrested, he gave an amount of K10, 000.00 cash to Tobarip United Church through this witness who gave it to Rev. Aquila Bobo.

9. Maryanne Lotu was the chairperson of the Tobarip United Church in 2002. In her evidence, she recalls that one day, she conducted an audit of the church books before she handed over to the new chairman. She said, she was surprised to see a large amount of money after the cheque was deposited into the Church account. She said, she was also present at the time the accused made an undertaking to leave K10, 000.00 in the church account. She said, she never knew if there was at all any money deposited into the church account.

10. Jennifer Pauria was the Church Treasurer in 2002. She said, in that year the accused and his wife approached her and asked her to hand- over the church passbook to them. She refused to hand over the church passbook to them on the basis that, the church should have given its approval first.

11. After hearing this, on the Sunday of that week, the accused made a public announcement in the church and announced that, after depositing the money into the church account, and after withdrawing it, he was to leave K10, 000.00 for the church to assist in the building of the Pastors house.

12. Jonah Ulae was one of the signatories to the Tobarip United Church account. This witness tor recalls that in 2002, the church made two large transactions. First he recalls signing a deposit slip for an amount he cannot really recall but it was about K80, 000.00 then such amount was also withdrawn that same year. He heard that, such money came from the National Gaming Control Board. As to what happened with the money, he never knew about it.

13. The next witness was Pastor Eramas Douglas of the Rapitok No.4 Local Church. He is responsible for the Church accounts. He said, as far as he is concern, he recalls that he never received the amount of K2, 000.00 until police investigating officers came to him to inquire about the amount. Asked in chief and cross-examination about the amount, he said, to his knowledge he was never made aware of the said payment and only became aware that such amount was given to Pr. Maule for the singing ministry of their church.

14. The last witness in the prosecution case was, Pastor To Ivut Kevin of Karavia No.1 Local Church who denied knowing anything about a K1, 000.00 until the Police Fraud Squad came to him and inquired about the above amount. He told the police that, he never received any money. He had a meeting with the Church Board and he asked if anyone of the board members received any money from the accused. Each board member answered in the negative. Asked in cross-examination if he knew there was a cheque made out for his church. He said he did not know anything until early this month a staled cheque was shown to him.

Defence Evidence

15. The accused gave evidence and called seven witnesses including his wife. The defence evidence concentrates on the total amount given to the Tobarip United Church and the amounts charged in counts 1 and 4. The defendant gave evidence that in 2002 General Election campaigns, he was a candidate for Gazelle Open Electorate Seat. He was sponsored by Peoples Democratic Movement Party.

16. According to the accused, during the campaign period, Flex Diapong called a meeting for the candidates for East New Britain Province. In that meeting, candidates attended were late Patrick Tamur, James Agi, John Robin and the defendant. In that meeting, issues such as youth, and maintenance of existing and new development of church properties were raised. Those candidates in the meeting were told by Mr. Diapong that those who wanted assistance could apply to the then Director of the Community Benefit Fund in the office of the National Gaming Control Board (NGCB) for assistance.

17. Following this, the accused went home to his church and called a meeting with Tobarip United Church elders and Pastor Wilson Sarak. At the end of that meeting, they made a resolution that they could write to the NGCB to seek assistance for the churches in the Gazelle District.

18. The Church Board wrote a letter to the above office and an amount of K83, 730.00 was approved and a cheque was made out to the Tobarip United Church. The evidence shows that twenty-two cheques were drawn from the Church account to various churches in the District.

19. The amount charged in count 1is K17, 836.00. This is the amount alleged by the State to have not been accounted for by the accused. The defence evidence shows that this amount was withdrawn by cash and the accused gave various amounts to churches which I will in due course refer to. The accused evidence covers all the charges including those which the court found that there is no case for him to answer.

20. Part of the accused evidence is that there were ongoing indifferences between the church administration in Tobarip United Church. The accused said, despite this, with the assistance of a few dedicated church members including his wife and their daughter, Ben rang and his wife contributed further sums of money to build the Pastor's house. The Pastor now uses that house. The total cost of the building was K154, 000.00.

21. The accused was vigorously cross-examined. The theme of the prosecution counsel's questioning was to find out if the accused had used some of the monies alleged in counts 1 and 4 because, he made recent payments to some churches established in the defence evidence. I will refer to those churches a little later.

22. On the cash amount alleged in count 1 (K17, 836.00), the evidence by Apisai Simar's evidence is that on a Sunday the accused and his driver drove to their church and in front of the congregation handed a brown envelope to the church containing a sum of K3, 000.00. According to these two witnesses, out of this amount K1, 000.00 was given by the Church administration to their Youth Group to purchase musical instruments and another K1,000.00 was spent to assist their elementary school. The remaining amount was used to buy other church items.

23. Lorraine Turia gave evidence on behalf of her church, the Vunakiakiala United Church where she testified that, in the month of September 2002, the defendant and his driver drove to their church premises in a vehicle and delivered an amount of K3,500.00 to the Church. The money was used to by seats for the Church, two pulpits and flower vases.

24. There is evidence from Matthias Toboina of Raluana No.3 in Reimber/Livuan Local Level Government area, that the Youth Group from their church had requested for financial assistance. This witness recalls that on 8th day of September in the year 2002, the Church Pastor Amens Tomen, the Youth Leader To Luana, Toliva, the witness himself and church elders were present in their church when the accused came and presented an envelope to the Youth Leader containing K1,000.00. The witness said, this money was used to purchase sport jerseys for the youth sporting activities in the District.

25. In cross-examination, Mr. Bray of counsel for the State suggested to this witness that the reason he wanted to give evidence was because, the accused had told him to come to give his story in favour of the accused. They answered no.

26. Two witnesses from Rapitok United Church were called. Reverend Akuila Bobo, the Circuit Minster and the Treasurer Solomon Murke both corroborated each other in their evidence that, Ben Rang (the first State witness) brought some money in a brown envelope to their church for safe- keeping. The money was belonging to Tobarip United Church. According to Reverend Akuila, Benrang and the Church Treasurer counted the money and confirmed it to be K10,000.00 all in K50.00 notes.

27. Solomon's evidence is that because the money had been lying in their safe for some ten months, he exercised his discretion to apply sum of that money toward the women's' group that travelled to Buka on the Autonomous Region of Bougainville. He gave the reason for using that money was because the Rapitok Women's Group had requested funds from their member for Gazelle Hon.Malakai Tabar and since no assistance was forth coming in due time, he decided to use some of the money for that purpose.

28. The defendant's wife Reguel Ningo was the last witness. She is the Church elder of Tobarip United Church. She is currently the Treasurer for the United Church Women's Fellowship in the United Church Regional Office. She said, she recalls that in about 28th August 2002, the defendant gave her two envelopes containing some money and he instructed her to keep the money because it was to be for their Pastor's house.

29. Reguel's evidence further shows that one or two days before the accused was arrested, the defendant called a meeting with his family members including Ben Rang and his family. The purpose of this meeting was for them to discuss and release the money because the accused was to leave for West Sepik on duty travel.

30. This witness was questioned at length in cross-examination. It was put to her that the reason why she came to court was because the accused told her to come and give evidence in his favour. She answered frankly and said, when she got the money, she kept it in their house because the money was earmarked for the Pastor's house and because, she was an Elder of the Church, it was morally wrong for her to use such money which had been put aside for God's purpose.

31. In answer to more questions by the State's lawyer, the witness said, the story she had told the court was nothing but the truth. It was suggested to her if she or her husband (the accused) had applied the money for their own use and latter when the investigation commenced, they put up something to cover up their misappropriation. The witness replied that being a Christian, she knows well the consequences of telling lies and particularly, after she had taken an oath laying her hands on the Bible to testify in this Court. She said, what story she had told the Court is truth.

Defence Counsel Submissions on Verdict

32. First of all, I take this opportunity to thank both counsels for your written submissions. In fact both counsels covered all the evidence both by the prosecution and defence. On the part of Mr. Donald of counsel for the accused, counsel's argument is that the State has not established the defendant's guilt on the criminal standard "proof beyond reasonable doubt."

33. Counsel's submission is based on Counts 1 and 4 where he made a detailed analysis of the evidence on those two counts. In relation to Count 1, counsel argued that, there is no evidence to show that the accused applied to his own use or to the use of another person the amount of K17, 836.00. Counsel referred to the defence evidence saying there is proof that, the amount charged in count 1 was applied for purposes such money was intended for.

34. He made calculations of the amounts established by the defence evidence and submits that, by adding all the amounts in the twenty-two (22) cheques and the cash alleged against the accused all amount to K83, 730.00 the amount that was given to the Tobarip United Church which came into the accused's custody.

35. On the staled K1, 000.00 cheque that was made out for Karavia N0.1 Local Church, counsel submitted that, the cheque was made out, but due to the process of time it went stale. Due to this, it was given to the then manageress Mrs. Maria Kipau at the Bank of South Pacific. She got transferred to Goroka in Eastern Highlands Province and it was replaced early last year.

36. Counsel asked the Court to consider both the evidence for the prosecution and the defence and since the State has not proven their case on the required standard of proof, the Court should find the accused not guilty and dismiss the two cases.

Prosecution Counsel Submissions on Verdict

37. As alluded to earlier, Mr. Bray also gave a detailed discussion on the prosecution evidence by arguing that, the two amounts in Counts 1 and 4 were misapplied by the accused, then like in the case of the first charge, he just recently repaid the money.

38. He made reference to the evidence of defence witnesses in relation to various amounts disbursed by the accused to various churches. Counsel argues that the defence witnesses were not witnesses of truth and the court should not accept their evidence. He also referred to inconsistencies in the defence evidence of the dates and years on which monies were alleged to have been disbursed.

39. Counsel argued that, the cheque that was drawn for Karavia No.1 Local Church was never received at all until it went stale. He further argued that if the accused was serious about disbursing that cheque, he could have given it to the church and what the defence has done is an affront to cover up the real nature of the charges of misappropriation.

40. Counsel further submitted that, even if the court accepts the defence explanation about the K17, 836.00, a cash amount of K336.00 was not accounted for and the court should not believe the accused story that, such sum was for bank fees and the accused should be found guilty.

Application of Law to all Evidence

41. The accused was charged with five Counts of misappropriation contrary to Section 383A of the Criminal Code. Counts 2, 3 and 5 were dismissed following a submission of no case to answer by the defence counsel. What is before the Court now is Counts 1 for the amount of K17, 836 and Count 4 for a sum of K1, 000.00. The first count is charged under s.383A(1)(a) & (2)(d) while Count 4 is Section 383A(1)(a) of the Criminal Code. I quote those provision in the following terms:

"383A. Misappropriation of property.

(1) A person who dishonestly applies to his own use or to the use of another person—

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either

solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

(a) where the offender is a director of a company and the property dishonestly applied is company property; or

(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

(c) where the property dishonestly applied was subject to a trust, direction or condition; or

(d) where the property dishonestly applied is of a value of K2, 000.00 or upwards."

42. The defendant is accused of misappropriating two separate sums of money contrary to section 383A (1)(a) & (2)(d) for Count 1 and (s.383A(1)(a) in Count 4. The standard of 'proof' required by the law to prove the guilt of any accused in any criminal cases is that of "proof beyond reasonable doubt".

43. The law on misappropriation or dishonest application of money was laid down in the case of Brian Kindi Lawi v The State [1987] PNGLR 183 which was followed in The State v Napilye Kuri [1994] PNGLR 371 which say that this offence relates to a particular state of mind of the accused and it is a question of fact which must be decided by the trial judge, see also The State v Gabriel Ramoi [1993] PNGLR 390 and The State v Natuwohala Laumadava [1994] PNGLR 291.

44. I summarize the State's case into two parts. First, I deal with the cash sum alleged in Count 1. By looking at the elements of the charges of misappropriation on the face of the indictment, were there elements of dishonesty as was in the tests laid down in Brian Kindi Lawi v The State (supra) or the case of The State v Gabriel Ramoi (supra). According to the tests laid in the cases cited, dishonesty relates to the state of mind of an accused person who does the act.

45. From the defence evidence on the amount of K17, 836.00, is it established that, out of this amount the biggest share went to the Tobarip United Church. Though the money was delivered to the Church very late, I find that there were grudges between the accused and certain church officials such as the Church Treasurer Jennifer Pauria and the Chairperson Maryanne Lotu and certain members of the congregation.

46. In any event that mount of K10, 000.00 was eventually given to the Tobarip United Church in 2009. The remaining sum K7, 836.00 was disbursed to various churches such as Usuit United Church an amount of K3, 000.00, Vunakiakiala United Church the sum of K3, 500.00 and Raluana No.3 Youth Group of the United Church a further amount of K1, 000.00. Adding this figure together amounts to K17, 500.00.
47. I take into account the overall evidence establish that a total of twenty-two (22) cheques were made out for various churches in the Gazelle District. The prosecution evidence does not establish anything on levies charged for each Bank cheque. This Court draws an inference that, the remaining amount of K336.00 would have been deducted by the bank for levies for the Bank cheques.

48. In relation to Count 4 on the staled cheque No.271245 for the amount of K1, 000.00, there is evidence by the accused that he drew a cheque from Bank of South Pacific at Kokopo branch but somehow, that cheque was misplaced when Mrs. Kipau got transferred to Goroka in Eastern Highlands Province first on leave then she resumed in Goroka.

49. In a letter to the accused from one Mr. Tom Kipau, a retired Banker, he apologized to the accused for the trouble he and his wife put on the accused and he said in paragraph 2 and 3 of the letter:

"Briefly, those cheques in question were returned due to the state of the cheques (staleness) as such could not either be negotiated or reactivated without the drawers consent. This is a normal banking practice and extremely difficult to by-pass.

I was in possession of the three (3) stale cheques but where misplaced while in transit of work transfer by Mrs. MARIA KIPAU from Kokopo to Goroka."

50. The Court accepts this piece of evidence that the cheque that was drawn for Karavia No.1 Local Church was drawn but was misplaced and therefore could not be disbursed in time.

51. I have read through the written submissions by both counsels and analyzing the evidence in relation to Counts 1 and 4, can it be said that the accused was dishonest in dealing with the money the subject of the two charges on the indictment?

52. In order for the accused to misapply the alleged money, the prosecution must prove that he had the criminal intent to commit the crime and that, he must have applied such money to his use. The K10, 000.00 was applied for building the Pastor's house at Tobarip United Church, while the remaining K7, 500.00 was disbursed to three churches. The remaining KI, 000.00, in count 4, the cheque was drawned but it went stale and had been reactivated and there is guarantee that after this case, it will be given to Karavia No.1 Local Church.

53. I differentiate the instant case from the case of The State-v-Jim Kendi (No.2) (17 April 2007) Unreported Judgment CR.No.1272 of 2003where there was clear evidence of misappropriation and how the K4, 000,000.00 was applied to the use of the accused and others in that case.

54. I answer the question posed earlier in the negative. I find the accused not guilty of the two charges that is Counts 1 and 4. The Court dismisses those charges and orders that his bail money be refunded to him.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Donald & Company Lawyers: Lawyer for the Accused.