N5117
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 335 of 2010

THE STATE

V

JOE ZUVANI

Wewak:  Geita AJ
2013: 18 & 26 March

CRIMINAL LAW – Trial – Misappropriation- Elementary School monies totalling 10,265.05 –– Prosecution avoidable had Teacher in-Charge produced Expenditure Report to parents-Board of Management of School – Need for transparency & accountability.  

CRIMINAL LAW – Verdict -  Criminal Code Section 383A (1) (a)- Need for timely presentation of finance report to parents- Teachers in Charge - Board of Management - Insufficient evidence – elements not made out – Teacher in Charge owe a duty to Parents & Citizens of schools over school matters. 

CRIMINAL LAW – Verdict of Not Guilty - Criminal Code Section 383A (1) (a)

Cases cited: 

None.

Counsel: 

Mr. Daniel Mark, for the State.
Mr. Edmund Thomas, for the accused.

DECISION ON VERDICT

26 March, 2013 

1.      GEITA AJ: 	The accused Joe Zuvani aged 26 years comes from Abegani village, Bogia in Madang Province. He was charged for misappropriation contrary to s.383A (1) (a) of the Criminal Code. 

Brief Facts

2.	The facts reveal that between 1 February and 31 June 2009 you were employed as a Teacher in Charge of St. Benedict Elementary School. In that same year a separate arm of the school was established as a result of increase in pupil's intake with the creation of St Francis Elementary School with both schools operating under the one provincial registration Code 61-P16. Two separate Boards of Management with two separate school accounts were opened with BSP Wewak for the two schools. St. Francis Account was numbered 1000 87 3623 and St Benedict's account was numbered 100 8728 58. A sum of K10, 265.05 collected as school project fees by parents were deposited into the St Benedict's School Account between 1st February and 30th June 2009. 

3.	Any withdrawals from those accounts were to be sanctioned by their respective Boards of Management by way of its board minutes. At the time the accused was the custodian of the two bank accounts. During the term of the accused discrepancies were noted from the two accounts with some withdrawals not authorized by the Board of Management.  The Board demanded explanations from the accused but none were forthcoming resulting in the accused referred to the CID, who was questioned and charged for misappropriation.

Law

5. The law in relation to misappropriation is stated in the following terms:

Section 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.

Evidence

6.     The States' evidence includes two oral testimonies and documentary evidence. The defence evidence likewise. The defence contention was that the monies were not dishonestly applied by the accused for his own use. Instead they were all expended for the sole use of both elementary schools with the new wing having received more for obvious reasons. Furthermore all expenditures were properly authorised by the existing Board of Management at the time and accounted for. 

7.	The two State witnesses, the deputy Chairman of the new Board of Management of St Benedict Elementary School and the other Teacher in-Charge of the same school gave evidence. Both testified that the Board of Management appointed by the Parents and Citizens of St Benedict Elementary School during its second meeting on 26 April 2009 was the legitimized Board and it did not authorise all those expenditures incurred by the accused during the periods stated.

8.	The two defence witnesses, the accused and the Co-ordinator of Elementary Schools in Wewak gave evidence. Both testified that the new Board of Management appointed by parent's on26 April 2009 was not the legitimized board as they lacked authority and endorsement from the Provincial Education Board and the Education Department. The two elementary schools although operating in different locations were still managed by the previous Board of Management who continued to sanction expenditures from the school account. Included in the defence evidence were copies of cheques made to service providers. Most of the cheques were countersigned by the previous board members. A computerized statement of expenditure totalling K9761.32 supported by receipts was also tendered into court. The School's bank account statement covering the same period showed no discrepancies, save for minor discrepancy of K503.73. During evidence it became apparent that the accused had deliberately withheld the documents from the new Board of Management and subjected himself to prosecution because he felt that they were not the authorized board and should not be given the information.   

The standard of proof

9.     The State has the burden of establishing beyond reasonable doubt the accused's guilt. It has to prove that the accused:

1.	dishonestly;
2.	applied to his own use or use of another;
3.	property belonging to another.

Submissions

10.     In his submissions to the court Mr. Thomas submitted on behalf of his client that a verdict of not guilty be entered, saying that the State had dismally failed to prove all required elements of the charge beyond reasonable doubt. The matter was an internal administrative disagreement between the old board and the new board over who should be in charge of the school, including the management of its accounts. Furthermore all expenditures were properly authorised and documents and all monies alleged to be dishonestly applied accounted for.  Although there appear to be slight variable discrepancies in the total amount alleged to be spent by the accused as against amount accounted for K9761.32. I do not consider that to be significant to alter the finding of this court.

11.	The State's lawyer Mr. Daniel Mark conceded to defence submissions that the defence had sufficient evidence to negative State's contention in elements (1), (2) and (3). He added that had the accused produced this evidence to the Board of Management and the Parents and Citizens meeting at the time, when they became suspicious of school monies being depleted the matter would not have come this far or the accused would not have been prosecuted. 

Remarks

12.     As to the question of which Board of Management this court should recognize as the legitimate authority I am left with no option but to accept the accused version that the old board or in his own language "my board" is and was the legal board at the time the transactions were made. The Board of Management under Dr Noboam, although properly sanctioned by the parents was yet to be sanctioned by the relevant school authorities in Wewak. The State did not bring in evidence to clarify the roles, responsibilities and functions of such boards, including how and when they should cease to operate and or assume authority over the management of the schools accounts.

13.	It could be suggested that this was a "nothing case" and the accused unnecessarily dragged to court. The converse of that suggestion is equally important and that the accused had dismally failed in his duty to report all expenditures to the parents at regular intervals. Had he cooperated with all persons, especially the parents who had an interest in this matter and produced his report now made available to court, after all it was their hard earned money paid into the school for their children, in school fees and projects, the matter would not have come this far as intimated by Mr Mark. They needed that report more than the court. As it is the parents together with all interested and affected parties were denied this report until today, after more than 3 years. Under the circumstances I ask myself what has become of the accused's sense of duty as a teacher in charge and his responsibilities to the parents. The accused has failed the parents to his own detriment in my view.

14.	I have deliberately detailed these concerns with the hope that teachers and Boards of Managements of Schools having carriage of school monies owe a duty to parents of those schools and must produce timely reports for purposes of accountability and transparency. 

15.	The upshot of all these is that I am not satisfied beyond reasonable doubt that Mr Joe Zuvani dishonestly applied the school monies for his own use or use of another. All such expenditures were authorised by the board at the time, payment cheques countersigned and all expenditures properly documented and accounted for. 

	Sentence

16.    I enter a verdict of Not Guilty.

 17.    I order that all necessary warrants for your acquittal be issued to this effect and your cash bail of K1000 be returned to you upon your production of your original payment receipt.

Ordered accordingly 
____________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused