State v Pohien [2016] PGNC 153; N6350 (14 June 2016)

N6350

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR ON. 1049 OF 2013

BETWEEN

THE STATE

AND
KAIS POHIEN

Kundiawa: Liosi, AJ
2016: 30 April & 14 June

CRIMINAL LAW – Misappropriation – Criminal Code Section 383A (1) (a) & (2) (b) (d). Evidence – Circumstantial – Credible evidences or mere conjuncture and surmise – Inferences to be drawn – Whether other inferences consistent with innocence excluded -
Standard of proof – Proof beyond reasonable doubt – Prosecution carries onus of proof – Onus of proof must not be shifted to accused.
Right of accused to remain silent – Accused electing to remain silent –Effect of silence discussed Constitution section 37(4)(a)& (10) – Prima facie case established against accused – Case of Paulus Pawa v. The State distinguished.

PNG Cases Cited:
Allan Oa Koroka v. The State and Mariano Wani Simon v. The State 1988 – 89 PNGLR 131
Jimmy Mostata Maladina v. The State (2016) SC 1495
Paulus Pawa v. The State [1981] PNGLR 498
The State v. Bob Morris N1743
The State v. Daniel (1988-89) PNGLR 580
The State v. Kindagl (1990) N846

The State v. Tom Morris [1981] PNGLR 493

Overseas Cases Cited:
Azzopardi v. R [2001] HCA 25; (2001) 205 CLR 50
Barca v. The Queen [1975] HCA 42; (1975) 50 ALJR 108
Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619
Plomp v. The Queen (1963) CLR 234
Weissenstenier v. R [1993] HCA 65; 178 CLR 217

Counsels:

P. Tengdui, for the State
M. Yawip, for the Accused

Ruling on Verdict

14^th June, 2016

The Charge

1. LIOSI AJ: The accused is charged that he between the 3^rd day of January 2012 and 6^th day of November 2012 at Kundiawa in PNG whilst been employed as a salesman by Sika Limited dishonestly applied to his own use and to the use of others various hardware store goods total valued at K462, 864.00 the property of his employer namely Sika Limited.
   

Facts for Arraignment

2. The Facts put to him on arraignment upon which he pleaded not guilty are these. It is alleged that the accused Kais Pohien was employed by Sika Limited between January 2012 and November 2012. He was employed in the hardware section of its supermarket. It is alleged that between the 3^rd of January 2012 and 6^th November 2012, the accused and one other, a Steven Mek, who was also employed at the time as the shop assistant at the hardware section, sold out substantial amount of hardware materials belonging to their employer Sika Limited. Between the period, the accused and his accomplice sold hardware goods and materials totalling K495, 103.20, which money was never paid to their employer.
   
   • ➢ The accused dishonestly wrote out false receipts to unknown customers to collect their money in exchange for hardware goods. He then manipulated the computer entries to evade detection of his scheme to steal from his employer.
     
   • ➢ This had been going on for the period from the 3^rd of January to the 6^th of November 2012. On the 7^th of November 2012, the accused was caught selling off certain hardware materials worth K8, 512.90. He was arrested and charged, along with his accomplice, Steven Mek. The District Court found the accused guilty of stealing from his employer and sentenced him to 1 year 7 months imprisonment.
     
   • ➢ Sika Limited then conducted further investigations and detected that from the period 3^rd January 2012 to 6^th November 2012, the accused and his accomplice had misappropriated substantial hardware goods and materials totalling K494, 103.20. The accused was again referred to the police and after further investigations, he was charged with the offence.
     
   • ➢ State has now filed an indictment against the accused charging him with misappropriation of hardware goods and materials valued at K462, 864.00 the property of his employer, Sika Limited.
     

Plea

3. The accused pleaded not guilty to the charge of misappropriation under section 383(A) (1) (a) & (2) (b) (d) Criminal Code.

Trial

4. To prove its case, the State tendered into evidence the following documentary evidence.
   
   1. The original pidgin record of interview of the accused. (Exhibit A1)
   2. The translated English version of the record of interview. (Exhibit A2)
   100. The statement of the investigating officer Sergeant Temgo Nime dated 28^th March 2013. (Exhibit B)
   4. Statement of corroborator Constable John Joseph dated 28^th March 2013. (Exhibit C)
   5. The State also tendered through state witness Samuel Ariaratnam a list of hardware materials misappropriated consisting of 8 pages dated from 3^rd January to 6^th November 2012. (Exhibit D)

Witness

5. The State only called one witness Mr. Samuel Ariaratnam. His evidence is that he is from Sri Lanka and he has been in PNG for 32 years, 16 of which was spent in Simbu. He is the Managing Director of the company Sika Limited for the past 14 years. The company is involved in general merchandising through 4 different sections namely, bakery, hardware, supermarket and wholesale. The company appointed supervisors to supervise the trading of those sections. The supervisor then reports to the General Manager who then reported to him as the Managing Director.
   
6. The accused was the supervisor for the hardware section. The section had two other employees. One was Steven Mek. The other he could not recall his name. The accused was the supervisor for the relevant period from January to November 2012. He never took any long leave of absence and was always at work. His duties as supervisor entailed being responsible for the stocks in the section. He and Steven were responsible for making entries in the computer of any sales done in the section. Once an entry was made, the computer automatically recorded and adjusted materials held in stock.
   
7. In this case, he gave evidence that the materials sold were entered in the computer as office expenses for which the computer adjusted materials held in stock. As it was entered as office expense, the computer did not adjust the daily cash receipts and thus the theft went unnoticed.
   
8. The witness gave evidence that on the 7^th of November 2012, they got a tip off from someone that the accused had sold to an unknown customer certain hardware materials at a reduced cost price. The witness then directed his manager to conduct an investigation in which it was discovered the accused had sold 81 sheets of v crimp and 40 sheets of plywood. The cost of the materials was around K8, 500.00. When the Manager checked against the computer records, the materials were entered as office expenses when it should have been entered in the register as general cash sales.
   
9. Upon further investigation the accused admitted to selling the materials for K3, 000.00 only and kept the money for his own use. He was then referred to the Police who arrested him for the offense committed on the 7^th of November 2012. He was tried at the District Court and was convicted and sentenced to imprisonment for 1 year 7 months.
   
10. The witness gave evidence that after the discovery of the scheme, the company conducted further investigations into the operations of the hardware section and discovered that substantial hardware materials were taken out in the same way spanning a period from the 3^rd of January 2012 to the 6^th November 2012. The company referred the matter to Police and the accused was again charged with the offenses committed between the 3^rd January and 6^th November 2012.
    
11. He finally said that the accused, as the supervisor of the hardware section did not report any materials missing or whether there were any shortfalls in the daily takings. Because the computer automatically adjusted the stocks as office expense, it did not show in the daily cash register record. As the section was dealing with a lot of materials, over three hundred items, the witness told the Court in answer to a question in cross examination that it was practically impossible to do daily stock counts and the offending went unnoticed until the tip off when the scheme was discovered.
    
12. He also said there was no major maintenance done to the shops during the period that would explain the materials being taken out and put down in the computer as office expenses. That was the oral evidence given by the witness Samuel Ariaratnam.
    

Cross Examination of Ariaratnam

13. In answer to a question whether it is common practice to count daily takings against the stock he said yes. That is done by checking the amounts with the goods sold. However this is normally balanced by the computer itself when a good is sold and a receipt is recorded this is automatically deducted from the stock. So it always balances out. He further said as there are over 300 items in stock it is impossible to manually check this in one day. When questioned on exhibit “D” which was the list of hardware materials misappropriated consisting of 8 pages dated from 3^rd January to 6^th November 2012, he said this were items removed as office expenses from the computer. He agrees it is not the original computer printout list. When asked if anybody else accessed or made entries in the computers, he said it was only Steven Mek and Kais Pohien. When asked if it could have been one of them who misappropriated the goods. He said yes it could have been one of them because one was looking after the stock and the other was looking after the cash. The State then closed its case.

Defence Case

14. Accused after been advised opted to exercise his right to remain silent. Defence then closed its case.

Defence Submissions

15. The brief facts upon which the accused pleaded not guilty are that whilst in the employ of Sika Limited in its hardware section between 3^rd day of January 2012 and 6^th November 2012, he allegedly misappropriated building materials and other items valued at K462, 864.00 to his own use and to the use of others. The following documents were tendered by consent. Records of interview dated 4^th March 2013 both pidgin and english versions marked as exhibits "A1" and "A2". Statement of Sergeant Nime Tamgo the investigating officer as exhibit "B", statement of corroborator John Joseph marked exhibit "C" and hardware material list as exhibit "D".
    
16. The State called the Managing Director as the only witness. Mr. Ariaratnam says that towards the end of November 2012, a member of the public reported that the accused and others were selling materials at lower prices. The matter was reported and the accused was arrested. He admitted committing the offence and was convicted and was sentenced by the District Court to 1 year 7 months. The witness gave evidence that after the discovery of the scheme, the company conducted further investigations into the operations of the hardware section and discovered that substantial hardware materials were taken out in the same way spanning a period from the 3^rd of January 2012 to the 6^th November 2012. The company referred the matter to Police and the accused was again charged with the offenses committed between 3^rd January and 6^th November 2012.
    
17. Consequently after investigating they found out a lot of other items were removed as office expenses so the computers never showed it from January 2012 to November 2012. Further, there were only 3 people in the hardware section. He confirmed that exhibit “D” was the summary sheet that they copied using the computer print out as items viewed as office expenses by the computer but it is not the computer print out.
    
18. The issue is whether the accused misappropriated the goods.

There is no direct evidence against the accused. All the evidence is circumstantial. The law on circumstantial evidence is set out in the case of State v. Tom Morris (1981) PNGLR 493 which followed the Australian High Court decision in Barca v. The Queen [1975] HCA 42; (1975) 50 ALJR 108 at p117.

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilty should be a rational interference but that it should be the only rational inference that the circumstances would enable then to draw: Plomp v. The Queen at p 252; see also Thomas v. The Queen at pp 605-606. However an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration, of all the facts in evidence: Peacock v. The Queen at p 661.

19. These principles are well settled in Australia. Mr. Yawip submits that the evidence before the Court is insufficient to convict the accused. He says there were other people employed previously who were sacked for stealing. As to how and why the circumstantial evidence is insufficient, Mr. Yawip has not elaborated any further.

State’s Submission on Verdict

20. The State tendered by consent the following,
    • Pidgin and english versions of the record of interview
    • Statement of the investigating officer Sergeant Tamgo Nime
    • Statement of corroborator Constable John Joseph
    • List of hardware materials allegedly misappropriated consisting 8 pages
      
21. The State submits that there are partial admissions made by the accused in the record of interview. For example, question and answer 30 where when shown the printout of the materials misappropriated and asked to explain, he said he was aware of the shortfalls but never reported it to the management. He further stated that he deleted the items from the computer to hide the shortfalls.
    
22. The State submits that the elements of dishonest application, to his own use or use of another and property belonging to another are all clearly made out although the evidence is all circumstantial. That is, that the first element of dishonesty is proven in the manner that the accused, by his own admissions in the record of interview stated that he had deleted from the computer to hide shortfalls in the material stock. The second element of applying to his own use or of another is proven by the fact the cash takings from the list of hardware materials misappropriated was never paid to the victim company. At the time, the accused was the supervisor of the hardware store and the items from the hardware material list were directly under his care and supervision. The third element of the offense is proven as the property in money and materials belonged to the victim company Sika Limited.
    
23. In respect of the first element, the State submits that it was the accused who was responsible for the misappropriation of the property of the victim company. While it concedes that there is no direct evidence, however, all the evidence adduced by the state points to the accused as the person who misappropriated the property of his employer. The following evidence supports this contention;
    
    • Firstly, the accused was the Supervisor for the hardware section. He was the person responsible for sales of hardware goods to customers and for raising invoices and making entries in the computers after a sale was executed. This was the evidence of Mr. Ariaratnam which was never disputed by the defence.
      
    • Secondly, the hardware materials that were misappropriated were entered in the computers as office expenses when they were cash sales. The accused was responsible for making entries in the computer of any stock taken out from the hardware section. Again this evidence was not disputed by the defence.
      
    • Thirdly, from the accused own answers to questions in the record of interview, he admits that he discovered shortfalls when he did stock counts. He further states he deleted computer records to hide the shortfalls. And further that he never reported such shortfalls to the management.
      
    • Fourthly, the accused was caught in the act on the 7^th of November 2012 when he sold hardware materials at reduced prices and manipulated the computer records to hide the sales. All of this point to the accused as the person who misappropriated the property belonging to Sika Limited. This is exactly the same scheme employed in all the transactions for the period 3^rd January 2012 to 6^th November 2012.
      
24. The law with regard to circumstantial evidence is that held by the Supreme Court in Pawa v. The State [1981] PNGLR 498. The Court held there that when a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be consistent with any reasonable hypothesis other than the guilt of the accused.
    
25. In the present case, from the evidence of the state witness and from the record of interview tendered by consent, it is the accused who was at all times responsible for the operations of the hardware section. His actions in hiding shortfalls and manipulating the computer records all point to him as the person responsible for the misappropriation.
    
26. The accused exercised his right to remain silent. Having allowed the record of interview to be tendered by the State by his consent, however, he did not give evidence himself, or call other evidence to explain the partial admissions made in the record of interview.
    
27. In the Pawa v. State case cited above, the Court also held there that where an accused person exercises his right to remain silent, this is not and should not be treated as an admission of guilt. However, the Court there also went on to say that failure to testify may, however tell against an accused person in that it may strengthen the State case by leaving it un-contradicted or unexplained on vital matters.
    
28. It is our submission that the State has proven all the elements beyond a reasonable doubt and a verdict of guilty must be returned.
    
29. In the absence of direct evidences the Court will have to make findings of facts and to draw inferences from circumstantial evidence it has before it. Where evidence on a criminal trial is wholly circumstantial the Court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused. To draw inferences the Court needed to make findings of fact first.

Findings of Fact by the Court

30. • The victim company was involved in general merchandising in four different sections including, bakery, hardware, supermarket and wholesale.

• The company appointed supervisors to supervise the general trading of the sections. The Supervisors reported to the General Manager who then reported to the Managing Director.
• The accused was the Supervisor for the hardware section at all material times that is for the period January 2012 to November 2012. For that period the accused never went anywhere, he was at work.
• There were two other employees, a Steven Mek and another whose name the witness couldn’t recall.
• The accused was responsible for the stock in the hardware section with Steven Mek. They were responsible for making the entries of all sales done in the section.
• Once an entry was made in the computer the computer automatically recorded and adjusted materials held in stock.
• The materials sold for the period 1^st January to 6^th November 2012 were entered in the computer as office expenses therefore the computer did not adjust the daily cash receipts so the theft went unnoticed.
• On the 7^th November 2012, someone reported that the accused had sold to an unknown customer certain hardware materials at a reduced cost price.
• After the investigations discovery was made that the accused sold 81 sheets of Vcrimp and 40 sheets of plywood totalling K8, 500. 00. This sales were recorded as office expenses when it should have been entered as general cash sales.
• The accused was reported, arrested, charged and convicted by the District Court and imprisoned for 1 year 7 months.
• These transactions appear on the hardware materials list document which is Court exhibit “D”. This is the transaction which is dated 7^th November 2012 in annexure “D” for which the accused was convicted and imprisoned. The exhibit was tendered in by consent of defence counsel.
• Following this the company conducted further investigations and found that substantial amount of hardware materials was removed in the same manner between the 3^rd January 2012 to 6^th November 2012.
• A report was made to the Police culminating in the current arrest and charge of the accused again.
• The accused never reported any materials missing nor reported any shortfalls in the daily takings.
• Given that over 300 items are been sold it was practically impossible to do daily stock counts manually.
• The Witness Samuel Ariaratnam is a credible and honest witness and he had no reason to lie.
• The exhibit “D” tendered in Court is the summary sheet prepared using the computer printouts but it is not the actual computer printout.
  

31. The law is now well established in this jurisdiction that a person maybe found guilty of an offence on the basis of circumstantial evidence if the guilt of the accused person is the only hypothesis open on the facts.
    
32. In other words, on the primary circumstantial facts as found is the guilt of the accused the only rational inference that could be drawn beyond reasonable doubt? See the State v. Morris (1981) PNGLR 493.

Analysis of the Evidence

33. The only evidence of the state witness Samuel Ariaratnam is unchallenged. I have already made a finding that he is a credible and honest witness and he has no reason to lie. The only part of his evidence which may throw some doubt on the state case is exhibit “D” which was used to do the summary sheet using the computer printouts. In cross examination the witness was asked whether this was a computer sales printout list. The witness said no this is a list of items viewed as office expenses by the computer. When put to him that this was not the original print out from the sales computer he honestly said no it was not.
    
34. This document was tendered into evidence by consent. When Mr. Yawip was asked whether he was objecting to the admission of the document, he submitted it was a question of weight to be given to the document.
    

Is there are Prima Facie Case against the Accused?

35. As I alluded to earlier on the evidence of the only state witness Mr. Samuel Ariaratnam went basically unchallenged. I have already made a finding that he is a credible and an honest witness and he has no reason to lie. I accept his evidence.

36. The only aspect of his evidence which I viewed to be very important to both the prosecution and defence was that of the hardware materials list marked as annexure “D”. This was a list prepared from a computer print out. The list contains items viewed as office expenses by the computer. In cross examination the witness agrees this was not the original computer printout list. Nevertheless this document was tendered in by consent of defence counsel. It is now a case of how much weight should be given to the document which really is pivotal and which the outcome of this case maybe hanging on. It is also necessary to highlight questions and answers in the record of interview which either implicates the accused or from which inference of guilt can be drawn.
    
37. In response to question and answer 23.
    Question –
    What will you say if Samuel Ariaratnam director of Sika Limited appeared before the Court and tell the Court that some of the hardware materials you sold has the records in the computer but the money collected was not balance?
    Answer –
    For that I will say this, company was not seriously considered for its employees pay so the employees were frustrated and deal with outside people and sold the hardware materials out and made the money for themselves. Those employees are experience people and also some of us are long serving employees but the company pay us on casuals’ rate and they got angry and do things at their own wish.
    
38. This is in my view an admission by the accused indirectly as I have already made a finding that the accused and Steven Mek were the only ones responsible for entries in the computer of all sales in the hardware section. I further draw an inference from this answer as this appears to be what happened on the 7^th November 2012, an incident for which he was charged and convicted.
    
39. In response to question and answer 30.
    Question –
    You can have a look at this computer printout of all the hardware materials sold between January and 6^th November, 2012 where Sika Limited lost the money value of (K494,103.22) Four hundred and ninety four thousand and one hundred three kina twenty two toea. (nine pages computer printout for hardware materials alleged been misappropriated show to the accused). What will you say about these nine pages of computer printout that you have seen it?
    Answer –
    From the computer has the record but from the stock has nothing so I am frighten for my boss and I normally deleted from the system in the computer.
    

Again I find this to be an inference of admission of guilt. He admits deleting the entry from the computer to avoid detection.

40. Question and answer 31.
    Question –
    When you detected that fault or wrong did you report the matter to your director that you have found that fault?
    Answer –
    Nothing I have never reported to him.
    
41. Question and answer 32.
    Question –
    What wrong have you done on the 7^th of November, 2012 and stood before the Court?
    Answer –
    On November, 2012 we took out 41 vcrimp and 30 sheets of 44 millimetre plywood and stood before the Court.
    
    It was this transaction for which he was charged, convicted and sentenced by the district Court. This is in evidence. This transaction led to the investigation which uncovered all other transactions between 3^rd January to 6^th November 2012. The transactions were all similar in nature in that stocks were removed as office expenses. This is a striking resemblance and are similar fact evidence and transactions. This proves a similar course of conduct employed by the accused in all the transactions and to rebut a defence of accident or mistake and to prove knowledge by the accused of some facts.
    
42. Question and answer 34.
    Question –
    From January 2012 to May 2012 who misappropriated all these hardware materials?
    Answer – I got the idea from Willie Wilfred.
    

Again this is an inference of admission by the accused that he did misappropriate but says he got the ideas from Willie Wilfred. However, there is no evidence that Willie Wilfred ever worked in the hardware section.

43. Questions and answers 36.
    Question –
    Did you report to your director when you found that Willie Wilfred was done corrupt transaction in the computer?
    Answer – Nothing I did not report.
    

Again I draw the inference that this is admission of covering up for his wrongs.

44. Question and answer 41.
    Question –
    You look at this copy of the tax invoice/statement dated 30^th October 2012, (copy of the manual invoice produce to accused.)What will you say about the copy of the manual invoice that you have seen?
    Answer – I know this is not my writing; it’s for another boy Steven Mek.
    
45. Questions and answers 42.
    Question – You as a manager what will you say about this invoice?
    Answer – It has no company stamp and unofficial and it’s a duplicate one.
    
46. The right of an accused to remain silent is a basic right guaranteed and safe guarded by the constitution under section 37(10). This right is part of the underlying law pursuant to schedule 2.2 and 2.4 of the Constitution. Therefore no adverse findings should be made against an accused for exercising his right to remain silent if the prosecution has not established a prima facie case against the accused. This principle is also enforced under section 34(4) (a) of the Constitution which guarantees that an accused charged with an offense is innocent until proven guilty according to law. The State v. Margaret Gara Torovel (1982) PNGLR 242 and Albert Karo v. Ombudsman Commission N1383. If there is no prima facie case against the accused, any adverse finding against the accused for exercising his right to remain silent would amount to an error of law.
    
47. However, given the above findings of fact and the inferences drawn from them, the partial admissions in the Record of Interview, I find there is a prima facie case for the accused to answer. The prosecution has linked the transaction of 7^th November 2012 to all the other transactions from 3^rd January 2012 to 6^th November 2012. Been the supervisor in the hardware section, this are matters / transactions which in my view peculiarly comes within the accused knowledge and which he should or must explain. There are also questions and answers in the Record of Interview referred to the above which should be explained by the accused. Tabo Sipo v. Mukara Meli (1980) N240, Billy Nara v. The State 2007 SC 1314; Azzorpadi v. The Queen [2001] HCA 25; (2001) 205 CLR 50.
    
48. Given my finding that the accused has a prima facie case to answer what then is the effect of the accused electing to remain silent? A law may place an evidentiary burden on an accused charged with an offence of proving particular facts which are or would be peculiarly within his knowledge. I find that the matters raised above are matters that were peculiarly within the accused knowledge which he should have explained.
    
49. An inference of guilt drawn against an accused should be the only inference the Court should draw from all the circumstances in evidence. An inference should not be based in a mere conjecture, surmise, guess or assumptions. The State v. Tom Morris (supra) Allan Oa Koroka v. The State and Mariano Wani Simon v. The State (Supra) The State v. Bob Morris N1743, Rimbink Pato v. Umbu Pupu (1986) PNGLR 310.
    
50. Having regard to the findings of a prima facie case against the accused and to the above principles the two questions that need to be answered are;
    1. is the guilt of the accused the only rational inference the Court can draw from all the circumstances? Or;
    2. are there other circumstances or other reasonable hypothesis consistent with innocence of the accused?
       
51. To answer the both questions, I weigh up the inferences going to the guilt of the accused as compared to those inferences or other reasonable hypothesis consistent with innocence of the accused.
    
52. Inference going to the accused guilt;
    • The accused was the supervisor for the hardware section at all material times. That is for the period January 2012 to November 2012. For that period of time the accused never went anywhere, he was at work.
    • There were two other employees, a Steven Mek and another whose name the witness couldn’t recall.
    • The accused was responsible for the stock in the hardware section with Steven Mek. They were responsible for making the entries of all sales done in the section.
    • Once an entry was made in the computer the computer automatically recorded and adjusted materials held in stock.
    • The materials that were sold were entered in the computer as office expenses and therefore the computer did not adjust the daily cash receipts so the theft went unnoticed.
    • On the 7^th November 2012, someone reported that the accused had sold to an unknown customer certain hardware materials at a reduced cost price.
    • After the investigations, discovery was made that the accused sold 81 sheets of vcrimp and 40 sheets of plywood totalling K8, 500.00. These sales were recorded as office expenses when it should have been entered as general cash sales.
    • The accused was reported, arrested, charged and convicted by the District Court and imprisoned for the theft on 7^th November 2012.
    • This transactions appear on the hardware materials document which is Court exhibit “D” dated 7^th November 2012 for which the accused was convicted and imprisoned. The exhibit was tendered in by consent.
    • Following this the company conducted further investigations and found that a substantial number of hardware materials were removed in the same manner between the 3^rd January 2012 to 06^th November 2012.
    • A report was made to the Police culminating in the current arrest and charge of the accused again.
    • The accused never reported any materials missing nor reported any shortfalls in the daily takings.
    • The witness Samuel Ariaratnam is a credible and honest witness and he had no reason to lie.
    • The exhibit “D” tendered in Court is the summary sheet prepared using the computer printouts but it is not the actual computer print out.
      
53. Questions and Answers in the Record of Interview;
    • Question and Answer 23 (supra).
      I view this to be an indirect answer implicating himself and Steven Mek. The inference is that he talks about other employees being frustrated to deal with outside people and to sell hardware items to make money for themselves. Then he says but some of us a long serving employees but company pay us on casual rates. He is shifting the blame on others but who else is there in the hardware section. All the evidence points to the accused and Steven Mek.
      
    • Question and Answer 30 (Supra).

I find this to be an inference of admission of guilt. The accused admits deleting records from the computer to hide the shortfalls.

• Questions and Answer 32 (Supra).

This is an outright admission. It was this transaction for which he was charged, convicted and sentenced by the District Court. This is in evidence. I find this transaction led to the investigation which uncovered all other transactions between 3^rd January to 6th November 2012. The transactions were all similar in nature in that stocks were removed as office expenses. This is a striking resemblance and is similar fact evidence.

• Question and Answer 34 (Supra).

I view this again to be an admission by the accused that he did misappropriate but he got the idea from Willie Wilfred. There is no evidence that Willie Wilfred even worked in the hardware section.

• Question and Answer 36 (Supra).
  I draw the inference of a cover up and an admission for covering up for his wrongs.
  
• Questions and Answer 41 (Supra)

Again he accuses Steven Mek. He however cannot isolate himself as the evidence points to the accused and Steven Mek in the hardware section as they were both doing all the entries in the computer for the hardware section.

54. In my view the elements of dishonest application, to his own use or use of another and property belonging to another are all clearly made out although the evidence is all circumstantial.

The first element of dishonesty is proven in the manner that the accused, by his own admissions in the record of interview stated that he had deleted from the computer to hide shortfalls in the material stock. The second element of applying to his own use or of another is proven by the fact the cash takings from the list of hardware materials misappropriated was never paid to the victim company. The third element of the offense are proven as the property in money and materials belonged to the victim company Sika Limited.

Similar Fact Evidence

55. The State tendered through state witness Samuel Ariaratnam a list of hardware materials misappropriated consisting of 8 pages dated from 3^rd January to 6^th November 2012. It also included the transactions of 7^th November 2012. This document was exhibit “D” and was tendered in by consent. At Question and Answer 32, the accused admitted that on 7^th November 2012, they took out 41 vcrimp and 30 sheets of 44 mm plywood and sold them to unknown customers. The total value of this items was K8, 500 but they sold them for K3, 000.00. The money was kept for himself
    
56. It was this transaction for which he was charged, convicted and sentenced by the District Court. This transaction is in evidence and was the transaction which led to the investigations that uncovered all other transactions between 3^rd January and 6^th November 2012. The transactions were all similar in nature in that stocks were removed as office expenses. In my view this is a striking resemblance and are similar fact evidence of similar transactions. The evidence of these transactions are all before the court in exhibit “D”. Such evidence is normally admitted to prove a course of conduct or to rebut a defence of accident or mistake or to prove a knowledge by the accused of some fact.
    
    57. In my view the evidence is overwhelmingly clear that all the transactions were done similarly hence rebutting any accident or mistake by the accused. I find such acts were not done accidently or inadvertently but intentionally. The accused clearly pursued a course of similar conduct for the whole year beginning 3^rd January – 6th November 2012. (The State v. Daniel (1988 – 89) PNGLR 580 and the State v. Kindagl (1990) N846.)

Are there other circumstances or other reasonable hypothesis consistent with innocence of the accused?

58. Mr. Yawip in his submission says that in cross examination Mr. Ariaratnam says three people were employed in the hardware. He never elaborated.
    • Questions and answer 24, 25, 26, 27, 28, and 29 in the Record of Interview talks about a Willie Wilfred, Joe Kua and Job Dekene. Again the evidence is vague. They can hardly amount up to an argument strong enough to raise a reasonable hypothesis consistent with the innocence of the accused.
    • The Defence ascertain that the accused evidence in the Record of Interview is not challenged and that there were other people sacked for stealing. This in my view remains a very shallow argument. In my view this is a very bare possibility of innocence and it does not and should not prevent this Court from finding the accused guilty as charged of the offence. Peacock v. The Queen (supra). The conclusion of the Court is that the only inference open upon a consideration of all the evidence is that the accused is guilty. I therefore find the accused guilty as charged.

Verdict

59. I find the Accused guilty as charged.
    

Ruling and Orders Accordingly,

___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused