State v Boas [2016] PGNC 375; N6613 (29 November 2016)

N6613

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. (FC) 218 OF 2014

THE STATE

V

DORA BOAS

Kokopo: Lenalia, J
2016: 7^th, 8^th, 11^th, 16^th & 29^th November

CRIMINAL LAW – Stealing – Plea of not guilty –Criminal Code Sections 372 (7) (a).

CRIMINAL LAW – Oral evidence – Circumstantial – Evidence of other officers of the company having in possession of office and keys to the safe – What inferences ought to be drawn?

CRIMINAL LAW – Defence evidence – Whose evidence should the Court accept? – Accused found not guilty – Case dismissed defendant discharged with bail refunded.

Cases cited:

Paulus Pawa v The State [1981]
State-v-Jacob Dugura Roy (2007) N3137
The State v Garitau Bonu & Rossana Bonu [1996] PNGLR.48.
The State v Tom Morris [1981] PNGLR 493

Other case cited

Woolmington -v- DPP [1935] AC 462.

Counsel:

Mr. L. Rangan, for the State
Ms. J. M. Ainui, for Accused

29^th November, 2016

1. LENALIA J: The accused is charged with one count of stealing under section 372(10) of the Criminal Code, Ch.No.262. After the charge was put to the accused, she entered a plea of not guilty.

2. On his opening address, Mr. Rangan began the prosecution case by addressing the Court on the status of the prosecution evidence. Counsel submitted that the State’s case consists of oral evidence and some documents which were to be tendered by consent. Ms. Ainui representing the accused consented to the following documents to be tendered:

➢ Statement by Arresting Officer Police Woman Constable Priscilla Asuari Ex “1”,
➢ Statement by Corroborator PWC Tina Kisak Ex. “2”
➢ R.O.I. Ex. “3” & “3A’” Pidgin & English versions,
➢ Statement by Peter Puipui Ex. “4”
➢ Statement by Henry Docta Ex. “5”
➢ Statement by Tadius To Rang Ex. “6”
➢ Statement of Ruth Waninara Ex. “7”
➢ Statement by accused Ex. “8”
➢ Second statement of same Ex. “9”
➢ Ex. “10” balance sheet dated 5.5.2014, 6 pages.
➢ Ex. “11” statement of witness Esther Babagira.

Prosecution Evidence-Documentary & Oral

3. Exhibits “1” & “2” are statements by the interviewing officer and her corroborator. Both said the record of interview was conducted in orderly manner and the accused was given a fair warning before the interview took place. On Exhibit “4” it is the statement by Peter Piupui, the Security Manager of a company he does not name. He was the one who accompanied the Plantation Manager to escort the accused to the Fraud Squad office at Ralum Provincial Police Headquarters.

4. Then Exhibit “5” the statement by Henry Dokta. He is the team leader of the Accounts Department of Coconut Products Limited located at Ulaveo, Kokopo. According to the 4^th, 5^th and 6^th paragraphs of his statement, he confirmed that between 6^th and 19^th June 2014, the cash balance made by the accused and Lucy Paulus was conducted on 31^st May 2014. The total amount confirmed and put in the company safe was K22, 794.10.

5. Then that after Estrella Sumaway returned from leave, the money was rechecked and balanced and was balanced with the above balance. Henry further confirmed that, the above balance had not been counterchecked or recounted between 6^th to 18^th until 19^th June 2014. It was on 20^th June 2014 that Estrella Sumaway requested that the balance should be counterchecked when it was established the missing amount was K11, 159.90. Earlier, on 31^st May of that year, the accused and another officer Lucy Boas had conducted cash balance.

6. The statement by Tadius Torang Ex. “6” confirms that on 19^th June 2014, he and the accused did cash balance for the period between 6^th and 18^th June 2014, the total balance they came up with was K7, 333.30. They put the money back in the safe. There was only cash but with no cheques. In Ex. “7” (statement by Ruth Waninara) Ruth says that when they commenced working in the morning at about 8.30am, the accused informed her that there was a shortfall found out by Tadius and herself (accused). She also confirms that, between 6^th and 19^th June, no cash balance had been made until 18^th that month.

7. The statement made by the defendant tendered against her in Ex. “9” dated 15^th July 2014. In her statement, she confirms a number of factors mentioned by other witnesses. First, she says in paragraph 1 of her statement that on 5^th June 2014, witness Lucy Paulus did a count on all the cash money that was in the company safe and the amount balance was K29, 315.60. By that time, Estrella Sumaway was back already from leave.

8. The second factor she confirms is that, no cash count was made between that date (5^th June) and 19^th June when Estrella Sumaway asked her and Tadius to conduct a recount of all cash. After counting the cash, they found that the balance was K7, 333.30. There was a bounced cheque for an amount of K200.00.

9. Then on 19^th about the same time i.e. 8am, Estrella came with the key to the safe and requested the accused and Ruth Waninara to go up to the office with her to do a verification of the shortfall. They counted all cash and cheques. The balance they came up with was K8, 281.75. This did not balance up with the general ledger. The cash on hand was K8, 281.75. This did not balance. The general ledger closing balance was K19, 441.65. It was again confirmed that there was a missing and shortfall of K11, 159.90.

10. She also said in the last two paragraphs of her statement that, by the time the money went missing, Estrella Sumaway was already back from her leave and Chaminda, who was the company financial controller were both present and after doing the balance checks, they called her into the office and told her to admit that she stole the amount missing and if she did not then they would lock her up in the cells. The second option they gave to her is to make up a written statement admitting to stealing the amount that was missing.

11. The first witness, Lucy Paulus evidence was brief. She is an employee of the Coconut Product Limited (CPL)-Rabaul. She was then working at Ulaveo plantation at the time the money went missing. She recalls that on two occasions when the amount of K11, 159.90, she was together with the accused to do the cash count and conduct balance with general ledger postings. The total amount of balance on the posting for 31^st May 2014 was K22, 794.10. The evidence of this witness confirms that of the statement by Henry Dokta (Ex. “5”).

12. The second time the two of them did the cash count was on 5^th June 2014. The balance posted on the general ledger sheet was K29, 315.60. This witness gave some highlight on the processes taken when doing cash-balance for the company. She said, every time the cash money of the company was balanced up, two accounts clerks were always engaged to do balancing of all monies received by the company. And every time, money was counted in the office, the Officer In-Charge whom the witness named as Estrella would sit in her office to watch those counting the money. She also confirmed in chief that, the money went mission after Estrella had resumed duty after having leave.

13. The process was after all money had been counted and balanced up, it was checked and re-counted by the second person and if the total balance was correct, the money was then handed over to Estrella. According to this witness, the key to the safe was always kept in Estrella’s office.

14. Asked in cross-examination to confirm what she said about the processes of counting money. She said, all the time the money is counted, it is always done or conducted by two account officers in presence of Estrella. Asked if she would have any ideas of who stole the money or how it went missing. The witness said, she did not know.

15. The second witness was Esther Babagira. She comes from Morobe Province. She was then employed by C.P.L when the money alleged against the accused went missing. Her statement Ex. “11” was tendered through her. Asked in chief if she knows any idea as to why and how the money alleged missing was stolen. The witness said, she has no idea.

16. In her statement, she gave an account of what occurred on 14.6.14. The Financial Controller Estrella Sumaway called her into her office and asked her to receive daily takings for the store and butcher shop. That was a Saturday and after the cash balance was done, she put the money away into the safe in presence of Estrella. The prosecution submitted their case closed.

Defence Case

17. The court inquired with the accused if she wanted to give evidence and call any witnesses. The defence accused said, she wanted to give evidence. This was confirmed by Ms. Ainui and the accused came across from the defendants’ dock to the witness stand where she was sworn in and she gave her evidence in English.

18. The accused was the only witness called by the defence. Her evidence is total denial. Around 2014, she was one of the accounts clerk with C.P.L. She worked with the company for almost three years until the shortfall was found out. According to the defendant’s evidence, the shortfall was found out on 19^th June 2014. On that date, when Estrella found out about the missing money, she called the accused up together with Tadius to do a recount of the amount that was on hand. They conducted the recount and found there was a shortfall. They repeated the cash count the second time and still found there was money missing.

19. Due to that short fall, Estrella told the accused to come up to her in the office the next day. She complied and when she saw her in the office, Estrella told this witness to write up a statement to admit stealing the amount missing because this witness was the last person who is supposed to have counted the money. She wrote two letters and sent them to the company head office in Moresby. These letters are marked Exhibits “8” & “9”.

20. Asked in chief why accepting responsibility for the missing money when she was not responsible for stealing it. The witness said, she was forced to write the letters and despite her explanation to the O.I.C of the Accounts Administration (Estrella) she was forced to write the letters. The witness also revealed that she was given two options by Estrella. The first was:

➢ If, she (accused) did not repay the amount missing back within 1 week, she was to be locked up in the cells.
➢ She (Estrella) threatened her that, she was going to take a photo of the accused and have it posted to the media.

21. The police was then called and the accused was arrested and charged.

22. She admitted in chief that, she wrote the letters before she was arrested and locked up in the cells. She confirmed what she said in chief that, the process was there were two persons conducting the cash count with the officer in-charge sitting in her office and observed what being done to the cash.

23. In cross-examination, it was put to the accused that the reason why she chose the first option to repay the missing money was because she stole the amount missing. Then she was forced to write the letters. Asked about the company manager talking to her in his office. She said, the manager suggested to her, if she could be put to another section in the company office. Asked about a company employee by the name of Chaminda as to where he is now. The witness said, he was deported and he returned to his country.

24. Asked for reasons as to why the man was sent away to his country. The witness said, there had been a previous occasion where Chaminda was locked up in the cells in relation to missing monies from the company. She was further asked questions about the tendered statements and she maintained her stance that, she did not steal the money.

Submissions on Verdict

25. Counsel representing the accused, Ms. Ainui submitted that, in order for the prosecution to establish a case against the accused, the prosecution must proof beyond reasonable doubt that the accused had actually stole the money. Counsel referred to the prosecution evidence saying that, the process of how the company’s money was usually balanced was there were always two persons doing cash count with Estrella Sumaway sitting in the office watching what was going on with the counting of the money. Counsel asked the court to consider the defence case where the accused is supposed to have been forced to make statements admitting the crime of stealing. Counsel submitted that, the prosecution had not established essential elements of any intention to steal.

26. For the prosecution, Mr. Rangan argued that, there is sufficient evidence in relation to how the accused was engaged to do conduct business for the company and she was trusted to do balancing at the time Estrella was away on leave. Counsel submitted that, the money went missing at the time and the court should consider the statements made by the accused in relation to her admission of how the money went missing. He asked the court to find her guilty.

Application of Law to Evidence

27. The issue for the court to determine is which of the two versions of the evidence before the court, should the court accept? This question depends much on the credibility of the witness or witnesses. Authorities warn that extreme caution must be exercised when the judge is dealing with the issue of the lying and truthful witness and which witness or witnesses should it believe: The State-v-Jacob Dugura Roy (2007) N3137, see also Woolmington -v- DPP [1935] AC 462.

28. On a trial like this it is usually said that, the truth is not easy to find and the court must do the best it can in all the circumstances of a given case to “try and strike a balance between what is logical and more probable of human comprehension than what is illogical or plain fallacy”. The common law practice which Papua New Guinea adopted on 16^th September 1975 including the criminal law and practice by virtue of Schedule 2.2 of the Constitution and s.37(4) of the Constitution itself requires that the court must be satisfied beyond reasonable doubt of the guilt of an accused before an accused can be convicted.

29. The amount of money that was stolen was large. The issue now is who was responsible for stealing the money. On weighing all evidence put before this court. The prosecution evidence is circumstantial in that the accused was present at the time the money went missing. The question the court must ask now is, is the accused guilt the only rational inference that the circumstances of the instant trial would enable this Court to draw?: The State v Tom Morris [1981] PNGLR 493, or Paulus Pawa v The State[1981] and The State v Garitau Bonu & Rossana Bonu[1996] PNGLR.48.

30. In order for the court to come reach a rational inference, there ought to be evidence that must convince the court that the accused alone was responsible for stealing the money. The accused on this trial in oral evidence confirmed that, Estrella Sumaway and Chaminda forced her to make up a statement to admit that, she stole or was responsible for stealing the money that went missing.

31. The court finds that part of the prosecution evidence substantiates the defence case that, after Estrella Sumaway returned from leave, the money was rechecked and balanced and was balanced with the above balance. Henry further confirmed that, the above balance was not confirmed until from 6^th to 19^th June 2014. It was on 20^th June 2014, that Estrella Sumaway requested that the balance should be counterchecked when it was established the missing amount was K11, 159.90. . Earlier, on 31^st May of that year, the accused and another officer Lucy Boas had conducted cash balance.

32. The oral evidence by the accused confirms what Henry Dokta said in his statement (Ex. “5”) that by that period Estrella had returned from leave and Estrella requested the accused and Ms. Lucy Paulus to conduct a recount on the money that was in the safe. In the 4^th, 5^th and 6^th paragraphs of his statement, Henry confirmed that between 6^th and 19^th June 2014, no further cash count was conducted as the last cash balance made by the accused and Lucy Paulus was conducted on 31^st May 2014. The total amount confirmed and put in the company safe was K22, 794.10.

33. On Exhibits “8” and “9” (the accused statements) particularly the later statement, the accused gave reason why she made the statement admitting responsibility. She said, in that statement that she was forced to make statements to admit that she was responsible for the missing money and she was asked to repay that missing sum. The court also finds from the record of interview in answer to question 19, she gave the same version of what Henry Dokta said that after the money had been balanced, no cash balance was conducted between 6^th and 18^th June 2014 until 19^th that month when Estrella requested her Lucy to do a recount.

34. In answer to question 24 in the record of interview, the accused gave the reason why she made the statement and that was because, Estrella and Chaminda had forced her to make the statement to admit stealing the money and if she did not admit, she would be locked up. She confirmed that version in her oral evidence. The prosecution evidence shows that by the time the cash balance was conducted and the deficit was detected, Estrella had already resumed.

35. The court finds from the evidence that, the cash balance conducted on 31^st May 2014, was put in the company safe was K22, 794.10. I also find that, after Estrella had returned from her leave, she had in her possession the keys to her office where all money used to be counted and put in safe in her office. According to the State and defence evidence, two persons usually counted the cash when cash balance was conducted and Estrella usually sat in her office to observe officers counting the money. As to how the amount of K11, 159.90 toea went missing is not clear from the prosecution evidence. Having said, this, I find the accused not guilty. The case be dismissed and the accused is discharged with orders that her bail moneys shall be refunded to her.

________________________________________________________________

The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused.