State v Douba [2018] PGNC 520; N7627 (14 December 2018)

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CRIMINAL LAW – s. 525(1)(a) Criminal Code –Public Prosecutor, or any State Prosecutor, may indict a person committed to the National Court for “any offence that the evidence appears to him to warrant” – indictment neither prejudicial nor embarrassing as a result of any variance between the amount(s) of monies averred in the indictment at trial and that alleged by police or at committal - s. 383A(1)(a) Criminal Code – Misappropriation – Meaning of “applied” – s. 534(1)(c) Criminal Code - Indictment not open to objection for stating imperfectly the time at which the offence was committed – Dates not an essential element of the offence – s. 535 Criminal Code - Amendment of indictment following closing submissions – meaning of “not material to the merits of the case” and “the accused person will not be prejudiced in his defence”.

The accused was charged with two counts of misappropriation contrary to s.383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code). It is alleged that whilst employed by the South Pacific Motor Sports Club Incorporated (SPMSC) the accused dishonestly applied to her own use cash takings generated from gaming machines at the SPMSC which she was required to deposit to the bank account of the National Gaming and Control Board (NGCB).

Count 1 alleged that between the 1^st day of December 2017 and the 3^rd day of December 2017 the accused dishonestly applied to her own use cash monies in the sum of K13,018.06, property belonging to the SPMSC. The monies were particularised by the State as poker machine takings for Friday, 1^st, Saturday, 2^nd and Sunday, 3^rd December 2017.

Count 2 alleged that between the 4^th day of December 2017 and the 21^st day of January 2018 the accused dishonestly applied to her own use cash monies in the sum of K24,573.60, belonging to the SPMSC. The State particularised the monies as takings for the 4^th, 10^th, 11^th, 16^th and 20^th December 2017, and the 2^nd and 12^th January 2018.

As to the variance between the amount(s) of monies averred in the indictment and the amount(s) alleged at committal:

Sections 383A(1)(a)(2)(d), 525(1), 534(1)(c) and 535(1)(a)(c)(d) of the Criminal Code
Section 17 of the Constitution

1. BERRIGAN J: The accused, Jessica Douba, was indicted on two counts of misappropriation, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code), namely, that she:

Count 1: “between the 01^st day of December 2017 and the 3^rd day of December 2017... dishonestly applied to her own use cash monies the sum of... K13,018.06, property belonging to South Pacific Motor Sports Club Incorporated”; and

Count 2: “between the 04^th day of December 2017 and the 21^st day of January 2018 ... dishonestly applied to her own use cash monies the sum of K24,573.60, property belonging to South Pacific Motor Sports Club Incorporated”.

2. At the time the accused was employed by the South Pacific Motor Sports Club Incorporated (SPMSC), often referred to as the “Car Club”. It is not disputed that as part of her employment the accused was required to conduct banking on behalf of SPMSC, including the banking of takings from gaming machines, also referred to as “poker machines” or “pokies”. Pokies takings were to be deposited to the account of the National Gaming Control Board (NGCB), for which SPMSC would be paid a commission.

3. It is also not disputed that takings for any particular day were usually deposited the following day, unless it was a Friday, Saturday or Sunday, in which case they were deposited on the following Monday, or the next working day if that was a public holiday.

4. The State alleges that between 1^st December 2017 and 21^st January 2018 the accused failed to deposit cash pokies takings for the following dates to the bank account of NGCB and instead dishonestly applied them to her own use:

	Date	Amount	Total
1	Friday, 1^st December 2017	K3,538.10	K13,018.06
2	Saturday, 2^nd December, 2017	K8,030.95
3	Sunday, 3^rd December 2017	K1,449.01
4	Monday, 4^th December 2017	K2,313.60	K24,573.60^[1]
5	Sunday, 10^th December 2017	K4,854
6	Monday, 11^th December 2017	K1,080
7	Saturday, 16^th December 2017	K1,584 (balance after K11,230 of K12,811.57 banked)
8	Wednesday, 20^th December 2017	K4,813.37
9	Tuesday, 2 January 2018	K4,744
10	Friday, 12 January 2018	K5,184

5. Takings for the first three days form the basis of Count 1 for which the State says there are admissions contained in the accused’s record of interview. The remaining form the basis of Count 2.

6. On its presentation, defence counsel sought to have the indictment, provided to him only that morning at the bar table, quashed on the basis that it was prejudicial and embarrassing to his client as the amounts alleged in the indictment deviated from those initially charged by police. The State submitted that the amounts involved had not changed but those for which there were admissions had been separated to form the basis of Count 1.

7. Defence counsel was not able to identify any legal basis for the objection, which was clearly misconceived. S. 525(1) of the Criminal Code provides the Public Prosecutor, and indeed any State Prosecutor, with broad discretion to indict a person who has been committed for trial or sentence to the National Court “for any offence that the evidence appears to him to warrant” or, furthermore, to decline to lay a charge.

8. It is very common for the State to proceed with charges different from those on which an accused was originally charged and/or committed. It does so following a review of the available evidence, further of which it may seek through the police, and having regard to the applicable law. This is consistent with the powers of the Public Prosecutor, in accordance with Acts of Parliament and the National and Supreme Court Rules, to control the exercise and performance of the prosecution function pursuant to s. 177 of the Constitution. It is also essential to ensuring that accused persons are indicted on charges that appropriately reflect the nature and extent of criminal conduct which is disclosed by the evidence. Per Kandakasi J in The State v Louise Paraka (2002) N2317, s. 525 proceeds on the basis that the Public Prosecutor, or a State Prosecutor for that matter, “is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffer the charge he considers sustainable".

9. Enquiries from the Court elicited that the real issue for the defence was that it had relied on certain amounts contained in additional materials provided to it by the State more recently in deriving the terms of orders requiring the production of bank records. The orders had been granted by me prior to the trial. In the circumstances, revised orders were issued and an adjournment granted, both with the consent of the State.

10. At the trial, the State called 4 witnesses. Wendy Fave, the Accounts Clerk at SPMSC, is responsible for raising payments and conducting banking if a Cashier is not available. At the beginning of every month she is also responsible for reconciling bank deposit slips with the NGCB Pokies Report of takings for the previous month. In doing so she identified that there was a shortfall in the amount of money deposited by SPMSC for the month of December 2017.

11. Ms Fave described SPMSC’s banking process generally as follows. In the morning the Cashier and the Duty Manager collect the key to the safe from the Club Manager. Together they remove the cash from the safe - which is contained in separate envelopes for each of the Club’s two bars, the pokie machines and the float - and sign the Safe Log Book. The Safe Log Book indicates the amount of takings from the previous day which have been placed in the safe by the Duty Manager. The Cashier confirms that the amount of cash contained in each of the envelopes is the same as that indicated and then conducts the banking. Banking is normally done for the previous day’s takings.

12. The cash is put into a Corps Security bag which is sealed by the Cashier for this purpose. The Cashier writes the security seal number on a Corps Security Delivery Docket which indicates the time the bag is collected from the Club office by Corps Security. The Cashier goes to the bank where she waits for Corps Security, who travel separately, to deliver the bag to her, upon which she confirms receipt by signing the Corps Security Delivery Docket as the receiving officer. The Cashier deposits the cash pokies takings to NGCB’s account.

13. Takings from a Friday are collected by Corps Security on Saturday morning and held in secure storage over the weekend. Takings from Saturday and Sunday are kept in the SPMSC safe and are picked up by Corps Security on Monday, or Tuesday if Monday is a public holiday. Takings from Friday, Saturday and Sunday are then delivered by Corps Security to the Cashier at the bank, who signs to acknowledge receipt as the SPMSC receiving officer.

15. Upon being shown Exhibits A and B under cross-examination, Ms Fave agreed that it was not the case that the accused was the only person doing the banking during the relevant period.

17. Ms Fave agreed that Exhibit C (pages 1 to 7), the NGCB Pokies Reports, include a reference to the amount taken through eftpos each day. If there are sufficient funds available, cash from the main takings, that is the Club’s two bars, is swapped for the eftpos amount for the purpose of banking. If there are insufficient funds then a cash cheque is raised for signing by the Club President and Treasurer every one or two weeks on a Wednesday or Thursday.

18. She further agreed that the December shortfall was not initially identified by her. NGCB informed her via email on 8 January 2018 and sought further information, in response to which the accused provided an initial response. Ms Fave later provided a further reconciliation.

19. She also agreed that deposits made by SPMSC were not always clear to NGCB because the description on the deposit slips was not clear. For example, deposit slips filled out on 2 January 2017 by Martha Gabriel, at pages 1 to 3 of Defence Exhibit 3, simply refer to “Pokies Takings” for the dates, 29, 30 and 31 December 2017 without specifying from which club they were generated. Martha Gabriel is no longer working for SPMSC.

20. As a result of the issues associated with this case, deposits since 19 January 2018 have been described by reference to “SPMSC” and the date on which the monies were generated at the Club for the purposes of clarity.

21. The second State witness, Lassania Joseph, Human Resources and Payroll Officer, confirmed that according to Exhibit E, SPMSC time cards, the accused was at work on the relevant dates.

22. The third State witness, Jubilee Nagi, the Club Manager, gave evidence that she holds the key to the safe containing the Club and pokies takings. The safe is opened only once a day by the Duty Manager and the Cashier who is on the morning shift. The cash is contained in sealed envelopes which the Cashier opens. The Cashier confirms the takings and signs on the Safe Log Book, which is kept with the Duty Manager, Cathy Steven. Once the cash is confirmed the Cashier conducts the banking.

23. Ms Nagi identified a copy of the SPMSC Safe Log Book for the period 28 November 2017 to 2 December 2018 which was admitted as Exhibit F (pages 1-8). She identified the accused’s name and signature on the entries for the 1^st, 2^nd and 9^th December 2017.

24. She admitted in cross-examination that her calculation of the shortfall for December 2017, namely K27,663.66, which is not in evidence, was different from that calculated by the NGCB and shown in Exhibit D, page 1, as K20,691.36.

25. The final State witness, Utu Madu, is the IT Manager for NGCB. Her duties include reconciling revenue earned by various sites at which pokie machines are operated with the revenue banked to the NGCB account for the same period by those sites, one of which is the SPMSC.

26. Gaming sites provide daily cash reports of monies taken through the poker machines. Reports are also provided through the NGCB’s Central Monitoring System (CMS). A comparison is made on a daily basis against NGCB’s bank statement to identify any discrepancies. A final reconciliation is done at the end of the month.

27. Upon doing a reconciliation for the month of December 2017 she found that there was a shortfall in the amount of money banked to the NGCB account by SPMSC compared to the revenue recorded by CMS as being generated. She emailed SPMSC the NGCB bank statement highlighting those deposits she had taken up for the month and asked them to identify any which she had failed to include.

28. She identified State Exhibit D (pages 1 to 3), the NGCB Daily Banking Summary, as the document she prepared and provided to SPMSC. For the month of December it showed that against earnings of K235,059.66 a total of only K214,368.30 was banked, constituting a shortfall of K20,691.36. The shortfall represented the amount owed to NGCB but not banked. In general terms, any amounts owing to NGCB are deducted from the commission payable by NGCB to the relevant site at the end of the month. In this particular case the shortfall was deducted from the commission paid to SPMSC.

29. Under cross-examination the defence tendered Defence Exhibit 4, a document entitled “Gaming Machine Operator Process” prepared by Ms Madu, and highlighted paragraph 4 which states that “Gaming sites are obligated to do banking of the revenue collected daily, weekly or as per their own schedule”, thus allowing flexibility.

30. With respect to paragraph 7 of the document, Ms Madu agreed that short-banking may occur, according to her own words, “if a bank teller enters a generic description which makes it hard to identify the deposit on the bank statement”. She agreed that she would describe the description “Pokies Takings”, as seen in some of the deposit slips in State Exhibit D (pages 1-28), as generic.

31. Ms Madu did not agree that there was a shortfall of K20,931.36 for December 2017 because some deposits lacked a clear description and could not be identified. She did agree, however, that in general practice there were sometimes deposits that could not be identified because site operators provided generic descriptions or made mistakes when entering the description.

32. She maintained that if there had been any deposits for the said amounts in this case they would have shown on the bank statement either by description or amount. She says she went meticulously through both the bank statement as well as the accused’s reconciliation and could not find any of the missing amounts by either description or amount.

33. Nevertheless, she did agree, that she did have problems in this case identifying deposits because of a lack of clarity and that as a result she asked SPMSC to be more specific with descriptions so that it would be easier for her to conduct the reconciliation in future.

34. She also agreed that the alleged variance identified by SPMSC of K27,633.66 for the month of December 2017 was different from the shortfall identified by her.

35. Defence Exhibit 6 (pages 1 to 35), a redacted copy of BSP Bank Statement for the account in the name of NGCB for the period 29 December 2017 to 31 January 2018, was admitted without objection.

36. Before closing its case, the State tendered the accused’s record of interview conducted on 5 March 2018, Pidgin original, and English translation, Exhibit G1 and G2, respectively, by consent. The record of interview contains the following admissions (reported verbatim):

Q26. On Monday the 26^th of February 2018 you were brought to this office and asked some questions. During the process you said that on three days takings for pokies that were on 01^st December 2017 K3560.00, 2^nd December 2017 K8032.00 and 3^rd December 2017 K1450.00, you did not deposit these monies for the NGCB. What did you do with the money?

Q27. Before you use the money or after you have used up the money, did you notify or inform your boss or the Club Committee?

Q28. When you said that you did never notify your bosses as well as any member of the Club committee, this indicate that your intention was to steal the money from SPMC that you were supposed to deposit into NGCB’s bank account. What do you say to this?

Q29. For the three days takings from the pokies can you tell me how much exactly you stole?

Q39. As you mentioned earlier, you stole monies belonging to SPMC that you were supposed to deposit in NGCB’s account. What did you do with the money?

37. The accused gave evidence in her defence. She said that first thing in the morning she would get the key from the Duty Manager and together they would open the safe. They would take out the cash and take it to the office where she would confirm the amount before putting it in an envelope, which she would seal. She would put the envelope inside the Corps Security Bag and seal it with a serial number. She would then go to the bank and wait for Corps Security. Upon receipt from Corps Security she would sign the Delivery Docket and fill in the deposit slip for banking.

38. She also confirmed that the NGCB Pokies Reports for various dates during the period 4 December 2017 to 12 January 2018, Exhibit C (pages 1 to 7), were completed by the Cashier on duty at the end of the shift and cross-checked by the Duty Manager. She signed the reports the following morning on opening the envelopes, counting the cash and cross-checking the amount recorded. Sometimes it included cash and sometimes it included an eftpos amount, which she would confirm on the side of the report. Where the Club had enough money it would convert the eftpos amount to cash. If not, she had to wait for Ms Fave to raise a cheque. It could take one or two weeks or up to a month for a cash cheque to be raised. She was not the only officer responsible for banking. Martha Gabriel and Wendy Fave also did banking.

39. The accused has suffered from epilepsy for the past 10 years. Whilst employed at SPMSC she was under a lot of pressure and worked a lot. As a result she collapsed on 10 November 2017 and was admitted to hospital and put on life support. Upon being discharged she was advised that she would require daily medication for the rest of her life and should avoid stress and take plenty of rest.

40. With respect to her answers at Questions 28 and 29 of Exhibit G, the record of interview, she admitted to stealing the takings for the 1^st, 2^nd and 3^rd of December 2017 because she was feeling unwell, had head pain and was shaking. She had not taken her medication before attending the interview. The interview was suspended after Question and Answer 29 to allow her to take her medication. The following day she took her medication and the interview resumed. At Question 37 she stated that she banked the monies amounting to K6508.03 for the 2^nd and 3^rd January 2018. The accused denied that she stole K13,042 or any other money belonging to SPMSC.

41. Defence Exhibit 7, a Medical Report from Port Moresby General Hospital dated 19 March 2018, was tendered in support of the accused’s medical condition.

42. Under cross-examination the accused was taken through Exhibit C, the NGCB Pokies reports and Exhibits A and B, the Corps Security Delivery Dockets, in relation to certain transactions underpinning Count 2. She agreed that she counted and confirmed the amounts for banking and signed as receiving officer but denied that she took the money.

44. As stated in Havila Kavo v The State (2015) SC1450 it is well settled that the elements of the alleged offence are that the accused:

45. The State has the burden of proving each and every element of the charge contained in the indictment beyond reasonable doubt.

46. The defence submits that the State has failed to prove both counts beyond reasonable doubt. It says that the shortfalls were the result of NGCB’s inability to identify deposits to its bank account for reconciliation purposes due to poor description or mistakes on the deposit slips. It points to the difference between the reconciliations conducted by SPMSC and NGCB for both December and January, as well as the difference between the amounts alleged by the State and the reconciliation conducted by NGCB, in support of this. With respect to the admissions by the accused, it says she is a long-term sufferer of epilepsy who admitted that she took the money because she was not feeling well and wanted to leave the record of interview.

47. I accept the State witnesses from SPMSC as credible and reliable. They readily accepted clarifications put to them under cross-examination and gave no indication that they had a particular interest in the outcome of the case. Their evidence goes primarily to the procedures in place at SPMSC, much of which is not disputed. I will return to my assessment of Ms Madu from NGCB in more detail below.

48. Having heard and observed the accused in the witness box, however, I am unable to accept her as a witness of truth. Whilst the accused’s evidence as to the systems in place at SPMSC was generally consistent with the State witnesses, her answers were otherwise deliberate and at times she struggled to respond, even in response to her own counsel. I don’t accept her evidence that deposits slips are missing because bank tellers told her that they would stamp the deposit slips later when they were free. It is simply implausible.

49. Furthermore, her testimony departed from her record of interview in key respects. I do not accept her evidence that her answers to Questions 26 to 29 were the result of feeling unwell and a need for medication. She agreed under cross-examination that at the time of the interview: the police informed her of the allegations against her and she understood those allegations; she was made aware of her rights and decided to proceed; she answered of her own choice; she read the record of interview before signing it; and agreed to sign the record of interview as a true account of what she told the police. She was not intimidated, threatened or coerced. It is also clear on a full reading of her record of interview, including that part following suspension – a matter I will return to below - that the accused gave considered responses to the questions posed.

50. I approach my assessment of the accused’s evidence on the basis that the fact that she lied about some matters does not necessarily mean she must be lying about other matters. Indeed as mentioned, there are many respects in which her evidence was uncontentious and in general terms I accept that evidence. In light of my overall assessment of the accused, however, I am unable to accept her as a witness of truth in relation to contested matters where her evidence is not corroborated.

51. I make it clear, however, that I take account of her untruthfulness in relation to her credibility and the reliability of her evidence only and for no other purpose. The accused gave evidence although she was not obliged to do so. By entering the witness box and giving evidence she did not take upon herself any obligation to prove anything in this trial.

52. The Safe Log Book, Exhibit F, page 2, shows and I find that on Monday, 4^th December 2017, the accused, in the company of the Duty Manager, Cathy Steven, collected cash pokies takings (“referred to as CGS”) from SPMSC’s safe in the amounts of K8032 and K1450 for Saturday, 2^nd and Sunday, 3^rd December, respectively. Whilst the log book is not signed by the accused, it is signed by the Duty Manager next to the entry for both Saturday, 2^nd and Sunday, 3^rd and the words: “4/12/17 Cathy and Jessica”. This is consistent with the standard practice at SPMSC, which was confirmed by the accused, whereby the Cashier and Duty Manager would together collect money from the safe for banking. It is also consistent with the practice, which was not disputed, whereby pokies takings for Saturday and Sunday were kept in the safe over the weekend and banked on a Monday.

53. The amount of pokies takings for Saturday, 2^nd December 2017 is confirmed as K8032 by Defence Exhibit 1, the NGCB Pokies Report of the same date. Defence Exhibit 1 also shows that the accused signed to confirm the amount of cash taken from the safe in the sum of K8032 on Monday morning.

54. No NGCB Pokies Report was produced by the State for Sunday, 3^rd December 2017 but the Daily Banking Summary, Exhibit D, page 1, shows that the CGS reading according to both NGCB and SPMSC was K1449.01. This was not disputed. According to the Safe Log Book, Exhibit F, page 2, pokies takings of K1450 were deposited to the safe for that day. Wendy Fave explained that takings were rounded up, which makes practical sense, wasn’t challenged and is borne out by the Daily Banking Summary, Exhibit D (pages 1 to 3), and Defence Exhibit 3, the deposit slips.

55. The Safe Log Book, Exhibit F, page 2, also shows pokies takings for Friday, 1^st December 2017 in the amount of K3560. This amount is confirmed by Defence Exhibit 2, the NGCB Pokies Report of the same date. I find that the takings were given to Corps Security on Saturday, 2^nd for safe keeping over the weekend, in accordance with standard procedure, and as confirmed by the corresponding Security Delivery Docket, Exhibit A, page 1.

56. I further find that on Monday, 4^th December 2017 the pokies deposits for Friday, 1^st, Saturday, 2^nd and Sunday, 3^rd December 2017 were delivered to the accused at the bank by Corps Security. See Exhibit A, page 2, where she signed as receiving officer for the takings of Friday, 1^st and Exhibit A, page 3 where she signed for the takings of Saturday, 2^nd and Sunday 3^rd December 2017.

57. In total the accused received cash monies in the sum of K13,042. I am satisfied beyond reasonable doubt that the monies were “property” “belonging to another person”, namely the South Pacific Motor Sports Club Limited for the purposes of elements iii) and iv) of s. 383A(1)(a) of the Criminal Code. The monies, indeed the very notes and coins themselves, were received by the accused on behalf of SPMSC as its employee or agent for the specific purpose of being deposited to the bank account of NGCB and thus SPMSC clearly retained ownership of the monies until they were so deposited for the purposes of s. 383A(3)(d). See the discussion in John Kasaipwalova v The State [1977] PNGLR 257. The value of the property was above K2000 for the purposes of s.383A(2)(d) of the Criminal Code.

58. According to the NGCB Daily Banking Summary, Exhibit D at page 1, the takings for the 1^st, 2^nd and 3^rd December 2017 are not reflected in NGCB’s bank account. On that evidence and having regard to the admissions contained in the record of interview I am satisfied beyond reasonable doubt that the accused did not deposit the cash monies to NGCB’s account as required but instead applied them to her own use. The accused’s admissions at Question and Answers 26 to 29 in this respect, which I accept as true, are clear and unequivocal.

59. Whilst the admissions on day one of the record of interview are more than sufficient for this purpose, her responses following the resumption of the record of interview the following day are significant and telling. The accused was questioned about monies for the 2^nd and 3^rd of January 2018 and denied any wrongdoing. Questions then returned to her earlier answers. In response to the question: “As you mentioned earlier, you stole moneys belonging to SPMSC that you were supposed to deposit in NGCB’s account. What did you do with the money?” the accused admitted that: “I used it.”: Exhibit G, Question and Answer 39. As discussed, I have already excluded the possibility that the accused’s answers on day one were due to her medical condition. There was no suggestion by the accused that she was in any way affected by her medical condition on day two of the interview.

60. For completeness, I note that the NGCB Daily Banking Summary, Exhibit D, page 1, shows a deposit of K2000 beside the entry for Sunday, 3^rd December. It states, however that this amount was “banked 3^rd Jan 18 for 29 Dec 17”. The corresponding deposit slip may be seen at Defence Exhibit 3, page 5 and is clearly for the takings of 29 December 2017. It’s entry against Sunday, 3^rd December is misplaced.

61. I am further satisfied beyond reasonable doubt that the accused acted dishonestly when she applied the monies to her own use. Dishonesty is a question of fact for the trial judge to determine, based on the facts of the case and according to the ordinary standards of reasonable and honest people: Brian Kindi Lawi v The State [1987] PNGLR 183.

62. In determining whether the prosecution has proven that the accused person was acting dishonestly, the Court must first decide whether according to the ordinary standards of decent, reasonable and honest people what was done was dishonest. The Court must also be satisfied beyond reasonable doubt that the accused knew that what she was doing was dishonest according to those standards: The State v Francis Laumadava [1994] PNGLR 291 at 293 applying Brian Kindi Lawi v The State, supra.

63. I consider that according to the standards of ordinary and reasonable people the conduct of the accused was dishonest. She received moneys for deposit to NGCB’s bank account as part of her normal duties and responsibilities. She failed to deposit the monies and instead applied them to her own use.

64. I am satisfied beyond reasonable doubt that having regard to the accused’s intelligence and experience she knew at the time she applied the property to her own use that what she was doing was dishonest. There is no other rational inference. Moreover, the accused admitted as much in her record of interview when she said she “stole” the monies, and did not tell anyone about it.

65. It is clear from the above, however, that there are two issues of variance between my findings and the terms of Count 1. The State has alleged in Count 1 that the accused “between 1^st day of December 2017 and 3^rd day of December 2017 dishonestly applied to her own use cash monies the sum of K13,018.06, property belonging to South Pacific Motor Sports Club Incorporated” (emphasis mine). By comparison the evidence shows, and I have found, that the accused applied the takings from Friday, 1^st, Saturday, 2^nd and Sunday, 3^rd to her own use on Monday, 4^th December 2017. Furthermore, the monies totalled a sum of K13,042 as a result of the practice of rounding at SPMSC.

66. I was initially of the view that the dates contained in Count 1 of the indictment may require amendment. As a general rule, an indictment should not be amended after counsel for the defence has addressed the jury: Simili Kara v The State [1984] PNGLR 254. In the circumstances I recalled the parties to express their views on the matter. See The State v Gene [1991] PNGLR 33. Counsel appearing for the accused sought an adjournment, which was granted on the basis that the officer from the Public Solicitor’s Office having immediate carriage of the matter at trial has since fallen ill.

67. Upon return, the State submitted that the accused applied the takings for the 1^st, 2^nd and 3^rd December 2017 to her own use and thus the dates in Count 1 were correct. In my view this is not correct, at least not on that basis alone. The fact that the monies were generated by the Club on the 1^st, 2^nd and 3^rd December 2017 is a separate issue entirely as to when the accused applied those monies to her own use for the purposes of s.383A(1)(a) of the Criminal Code.

68. On the evidence, the takings for the 1^st December 2017 were with Corps Security between the 1^st and the 3^rd December 2017, and the takings for the 2^nd and 3^rd December 2017 were in the Club safe. The offence was not complete until Monday, 4^th December when the accused received the takings for those dates from Corps Security at the bank and then failed to deposit them to the account of NGCB as required. It was at that point that the accused applied the monies to her own use.

69. Whilst I think it is clear from the terms of the provision itself, the discussion in R v Easton [1993] QCA 255; [1994] 1 Qd R 531 is also instructive. The case concerned s. 408C of the Queensland Criminal Code, on which s. 383A of our Criminal Code is modelled. In considering the meaning of “applied to his own use”, Macrossan CJ said at page 534 (emphasis added):

“...before an item of property will be "applied", there has to be a mental element, an intention held in relation to the thing, and also there has to be some implementation of that intention, i.e. some act or acts which constitute some dealing with the thing: in simple terms something has to be done to or with the thing. Usually there will be, I think, some influence exerted upon the thing affecting its form, location or its attributes. The "application" will involve some deflection from the purposes of the person to whom the property belongs.”

70. Upon further consideration, the State sought to amend the dates in Count 1 of the indictment to include the 4^th December 2017 on the basis that there was no prejudice to the accused. It relied on the fact that Counts 1 and 2 read together covered the 4^th December 2017 and further submitted that in the alternative the Court could find the accused guilty under Count 2 which covered the period from the 4^th December 2017 to the 21^st January 2018, inclusive. No particular legislative provision was relied upon and the State was unable to cite any relevant authorities.

71. Following the State’s submissions I allowed the defence a further short adjournment at which time counsel appearing from the Public Solicitor’s Office advised me that he had discussed the matter with the Deputy Public Solicitor. He informed me that trial counsel was on indefinite leave and that he was unable to assist the Court with respect to the issue raised. I indicated that in those circumstances I would proceed to consider my verdict unless he had any further application to make, which he did not.

72. S 534(1)(c) of the Criminal Code provides that an indictment is not open to objection “for stating imperfectly the time at which the offence was committed”. This reflects the common law rule that a date specified in an indictment is not a material matter unless it forms an essential element of the offence. Per Prentice DCJ in The State v Titeva Fineko [1978] PNGLR 262 adopting the English position in R v Dossi (1918) 13 Cr App R 158:

"From time immemorial a date specified in an indictment has never been a material matter unless it was actually an essential part of the alleged offence... the jury were entitled to find the appellant guilty of the offence charged... even though they found that it had not been committed on the date specified in the indictment." Also applied in The State v Raraka (2007) PNGC 13, 7 May 2007 and The State v Yangi (2012) N4573.

73. Whether the date is an essential element of an offence will depend on the circumstances of the case and the provisions of the statute creating the offence. The date of an offence may be an essential element when: the offence is subject to a limitation period; the statute has since been repealed or amended in a relevant manner; the age of the complainant is an essential element and may be in issue depending on the date of the offence; or when the conduct of the trial has such an effect, for example in some cases where alibi is raised: see the discussion of the High Court of Australia in WGC v R [2007] HCA 58; (2007) 233 CLR 66.

74. No such issues arise here and the date is not an essential element of the offence in this case. The State was at liberty to allege that the offence occurred between dates. Whilst the evidence at trial established that the accused committed the offence outside those dates, that does not affect the validity of the indictment nor the guilt of the accused. The State v Raraka (2007) PNGC 13, 7 May 2007 applied. WGC v R considered.

75. To my mind that sufficiently deals with the matter regarding the date of the offence in Count 1. As such it is not necessary for me to amend the indictment and in the circumstances I decline to do so. Whilst it is not necessary for me to decide, it is my view, however, that such a course would have been permissible, even at this late stage. S. 535 of the Criminal Code places no restriction on the stage of proceedings at trial at which an indictment may be amended provided that the variance is not material to the merits of the case and the accused will not be prejudiced in their defence on the merits.

76. In The State v Tanedo [1975] PNGLR 395 the State sought to amend two counts of conspiracy by substituting the words “in the month of September 1974” with “Between the months of September 1974 and March 1975 inclusive”. The application was made following a submission of no case to answer. The Court allowed the amendment and whilst the amendment was made at an earlier stage, to my mind the principles outlined in that case are equally applicable here.

77. In considering the application, Prentice DCJ held that the phrase “the variance is not material to the merits of the case” means “that the correction of the record required by the variance might be made if its making would not affect the merits of the case being considered”.

78. In my view the variance between Count 1 of the indictment and the evidence is not “material to the merits of the case” within s. 535(1) (c). The proposed amendment would not create a new or different offence, expose the accused to a greater penalty, nor change the nature of the charge: compare with Simili Kara v The State [1984] PNGLR 254, The State v Gelam Koivaku [1986] PNGLR 217 and The State v Gene [1991] PNGLR 33. All that is proposed is to amend the particularisation of the date, which as discussed above is not an essential element.

79. Nor would the proposed amendment be “prejudicial to the accused in her defence on the merits”. It has been clear from the State’s opening, the statement of brief facts and the particulars provided, and indeed must have been clear from the time of the record of interview and through the committal proceedings, that it was being alleged that the accused dishonestly applied the takings for the 1^st, 2^nd and 3^rd December 2017. The evidence at trial has covered the period 1 December 2017 to 21 January 2018, inclusive of the 4^th December 2017, and indeed counts in the indictment when taken together cover the same period. Moreover, the accused has in her evidence denied both generally that she took any monies during that period, and specifically that she took the takings for the 1^st, 2^nd and 3^rd December 2017.

80. Similar issues have been considered in other jurisdictions. In R v Bonner [1974] Crim LR 479 the Crown was permitted to amend the dates in the indictment during the judge’s summing up. The Court held that as dates are not an essential particular to a count on the indictment, there may be no injustice in the amendment where no other prejudice could be identified.

81. More recently, the Court of Appeal of the Australian Capital Territory in Gillard v The Queen [2013] ACTCA 17; (2013) 275 FLR 416 adopted a similar approach to that taken in Tanedo. In that case an indictment had been amended multiple times during the course of the trial, with final amendments being made following and in response to the evidence of the accused himself and prior to closing addresses to the jury. The Court of Appeal dismissed the appeal on the grounds that the accused was unable to identify or particularise any specific prejudice, as distinct from “general deterrence”, suffered as a result of the amendment. In particular the amendments did not raise the possibility that new alibi evidence might become relevant as the dates were covered by other counts in the indictment. If the amendments had resulted in other evidence becoming relevant (whether evidence not previously provided in the accused’s case, or evidence about which Crown witnesses had not been cross-examined), counsel at the trial did not identify that fact, and did not make any application to re-open his case or to recall Crown witnesses.^[2]

82. The fact that there are also clear and unequivocal admissions in the record of the interview with respect to the takings for the dates concerned, admissions which the State made it abundantly clear at the start of the trial formed the basis of Count 1, only serves to strengthen my view that no “prejudice on the merits” would be occasioned by the proposed amendment for the purposes of s. 535(1)(d) of the Criminal Code.

83. The second variance on the evidence relates to my finding that the accused applied K13,042, rather than K13,018.06, or an additional amount of K23.94, as a result of the practice of rounding at SPMSC. This is also consistent with the admissions of the accused in her record of interview. For similar reasons I am of the view that the proposed amendment is neither material to the merits of the case nor would prejudice the accused in her defence. Indeed in submissions on verdict, defence counsel conceded that the variance of a small amount would be understandable. As above, the defence case was a denial that any monies averred in the indictment were dishonestly applied.

84. Furthermore, variation between the amount of monies averred in an indictment and established on the evidence is not usually a basis for avoiding liability. Section 530 (6) and (7) of the Criminal Code read together make clear that an averment of money will be sustained “so far as regards the description of the property, by proof that the offender obtained or dealt with any coin or anything that is included in the term “money”, or any portion of the value of it, in such a manner as to constitute the offence”. In this case I am satisfied the accused dealt with the monies particularised and a small amount more. Given the very small nature of the additional amount, however, I am not minded to amend the indictment.

85. For the above reasons, I am satisfied beyond reasonable doubt that between the 1^st day of December and the 4^th day of December 2017 the accused dishonestly applied to her own use cash monies in the sum of K13,018.06, the property of SPMSC. Whilst this is outside the dates alleged in the indictment, having regard to s. 534(1)(c) of the Criminal Code, I convict the accused of Count 1 in the indictment.

86. Before leaving Count 1, the State submitted that if Count 1 was not amended, the accused could instead be convicted under Count 2.

87. The State could have proceeded with one count of misappropriation. It is a well-established practice in this jurisdiction. There is also a long line of authorities in other jurisdictions approving the approach in cases such as this one. As stated in Director of Public Prosecutions v Merriman (1973) AC 584:

"Where a number of acts of a similar nature committed by one or more defendants were connected with one another in the time and place of their commission or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment".

88. The State elected to proceed on two separate counts. It was at liberty to do so. It also properly provided particulars for each count. “Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute) an accused person is entitled to have identified the specific transaction upon which the crown relies and to be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge”: R v Trifyllis (1998) QCA 416 applying Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77. Particulars also enable an accused person to distinguish between charges of an identical or similar nature.

89. The “property” alleged to have been misappropriated under Count 2 as particularised did not include the takings for the 1^st, 2^nd and 3^rd December 2017. It is not immediately apparent to me on what basis it is now open to the State to say that the “property” in Count 2 as particularised may include takings which were particularised for the purposes of Count 1. To do so would arguably inject some aspect of duplicity into the indictment where none had previously existed.

90. Turning now to Count 2. This count alleges that between the 4^th December 2017 and the 21^st January 2018 the accused misappropriated a total of K24,573.60. The takings relied upon by the State are particularised in Table 1, which discloses a small addition error. The total of the takings alleged by the State for the purposes of Count 2 add up to K24,572.97 according to my calculations.

91. I find that the accused counted and confirmed the amount of pokies takings for the relevant dates in December namely, Monday, 4^th, Sunday, 10^th, Monday, 11^th, Saturday, 16^th and Wednesday, 20^th December 2017. This is proven by Exhibit C, pages 1 to 5, the NGCB Pokies Report, together with Exhibit A, pages 4, 7, 11, 12 and 14. The accused admitted the same under cross examination for all except the 20^th, about which she was not questioned.

92. I also find that that the accused counted and confirmed the takings for Tuesday, 2^nd and Friday, 12^th January 2018 as shown in Exhibit C, pages 6 and 7 of the NGCB Pokies Report. The accused admitted in cross-examination that she was the receiving officer for these monies but said that she banked the monies. She only raised a delay in payment due to eftpos with respect to takings for the 16^th December, which included an amount for K11,230 which was deposited on the 21^st December, and which the State has already excluded from its allegations. With respect to the 12^th, State Exhibit B, page 3, shows that the accused received the takings at the bank on Monday, 15^th. The accused admitted that she did the banking on Monday, 15^th January and there is a deposit slip for the takings of Saturday, 13^th (Defence Exhibit 3, page 9). There is no deposit slip for the takings of the 12^th. Curiously the NGCB reconciliation indicates the receipt of K4129, highlighted in red, for that day against an amount due of K5184 (leaving a shortfall of only K1055, not K5184 as alleged). Ms Madu was unable to recall distinctly but said that she may have highlighted some entries in red because the amounts were deposited in February.

93. This goes to the main issue for the State in relation to the second count. The State did not produce NGCB’s bank records. The Defence did tender Exhibit 6 (pages 1 to 35), NGCB’s bank statement for the period 29 December 2017 to 31 January 2018. It does not refer to the period 4 December to 20 December 2017 and is otherwise heavily redacted at NGCB’s insistence. In fact the vast majority of entries have been redacted. In the circumstances the State relies on NGCB’s reconciliation prepared by Ms Madu, Exhibit D (pages 1 to 3) to establish that there was a shortfall between the pokies takings received by the accused at the bank and the amount actually deposited to the account of NGCB in each case.

94. I was impressed by Ms Madu as a witness. She had, for the most part, a clear and independent recollection of the reconciliation she had conducted of the SPMSC’s pokie takings for the relevant period and set out in the Daily Banking Summary, Exhibit D (pages 1 to 3). I accept her evidence that she carefully reviewed NGCB’s bank statement for the purpose of identifying the missing amounts. Those amounts, except for Monday, 11^th December and Friday, 12^th January, discussed above, align with the amounts particularised in the brief facts underpinning Count 2.

95. There was an attempt to discredit Ms Madu as having given a prior inconsistent statement on the basis that her statement to police, Defence Exhibit 5, said that she had only taken up one deposit on 29 December. It is clear from both the statement itself and her explanation in the witness box, however, that the deposit she was referring to was in addition to those she had already taken up in preparing the reconciliation.

96. The defence also says that Ms Madu only accounted for one deposit in her reconciliation for 2 January 2018 instead of the 4 contained in the deposit slips, Defence Exhibit 3, pages 1 to 4. That is not correct and again confuses the date of the takings with the date of their deposit, or intended deposit. The allegation in the indictment relates to the takings for Tuesday, 2^nd January 2018 which should have been deposited on Wednesday, 3^rd January. Whilst there is a deposit slip for the 3^rd it relates to takings for Friday, 29^th December. It is also clear from Exhibit D, page 1, that amounts contained in the four deposit slips dated 2 January 2018 have been taken into account in the reconciliation at entries for the 30^th and 31^st December. The takings for 29 January are not the subject of Count 2.

97. There are, however, some other entries in the reconciliation which lack clarity. For example, Ms Madu was unable to specifically recall why some of the entries in the Daily Banking Summary were marked in red but suggested that it may have been because the deposits were made in January. At least for the entry at Sunday, 7 February 2018, on the face of Exhibit D, page 2 that does not appear to be correct.

98. The real issue, however, is what might be missing from the reconciliation she prepared. Firstly, any large amounts of eftpos which were paid by cash cheque, which could take one or two weeks to be processed. Secondly, and most significantly, any amounts which could not be identified because of generic description.

99. Ms Madu agreed that as a result of the difficulties encountered by her in this case, she instructed SPMSC to clearly label its deposit slips to make it easier for her to identify them for reconciliation purposes. She was, nevertheless, very confident that she would have identified any such amounts. I am quite confident that she would have as well. It is clear from Exhibit D taken together with other documentary exhibits including the bank statement, deposit slips and the NGCB Pokies Reports held by SPMSC that Ms Madu did so on many occasions, including for amounts which had been rounded up by SPMSC. That is not the point, however. The Court needs to be satisfied of this itself. Without a clear and un-redacted bank statement, a complete set of deposit slips, or perhaps an explanation as to the anomalies in the reconciliation, I am of the view that I should exercise caution. In the circumstances I cannot be satisfied that the State has established the second count beyond reasonable doubt.

100. I make it clear, however, that any such doubts that might otherwise have arisen in this regard with respect to Count 1 have been excluded by the clear and unequivocal admissions made by the accused in her record of interview.

101. In conclusion, I find the accused guilty of Count 1 in the indictment and convict her accordingly. The accused is acquitted of Count 2 in the indictment.

_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

^[1] See comment below.
^[2] Whilst the High Court subsequently upheld an appeal from that decision on another ground it did not suggest that the Court of Appeal’s decision as to the question of the amendment to the indictment was wrong.

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National Court of Papua New Guinea

State v Douba [2018] PGNC 520; N7627 (14 December 2018)