State v Mambei [2021] PGNC 63; N8813 (14 May 2021)

N8813

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 347 OF 2019

THE STATE

V

IGNAS MAMBEI

Waigani: Berrigan J
2020: 21^st, 22^nd, October, 10^th, 11^th November, 10^th December
2021: 14^th May

CRIMINAL LAW – Misappropriation – Dishonesty – Claim of Right – Failure to exclude claim of right beyond reasonable doubt – Not guilty

Cases Cited:

David Kaya and Philip Kaman v The State (2020) SC2026
Brian Kindi Lawi v The State [1987] PNGLR 193

References cited

Sections 23(2), 383A of the Criminal Code (Ch. 262) (Criminal Code)

Counsel

Mr. C. Langtry, for the State
Mr. F. Lunge, for the Accused

DECISION ON VERDICT

14^th May, 2021

1. BERRIGAN J: The State presented an indictment against the accused containing one count of misappropriation contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (Criminal Code), alleging that between 11 January and 30 March 2019 the accused dishonestly applied to his own use and the use of others K872,462, property belonging to the State.
   
2. It is alleged that the accused is a lawyer by profession and related to the complainant. Whilst employed as a lawyer at Solwai Lawyers the accused acted for Mr Simon Solo, former Governor of West Sepik Province from 2007 to 2012, to pursue an election petition against Amkat Mai, the winning candidate in the 2012 National General Election. The complainant was successful in the National Court. On 23 March 2015 the Supreme Court dismissed a subsequent review and ordered costs in favour of the complainant. On 23 June 2017 the National Court Registrar taxed the complainant’s bill of costs and allowed K1,163,283 including 10% VAT. It ordered the Electoral Commission to pay 75% of the costs, with the balance to be met by Amkat Mai. On 12 January 2019 the Finance Department made out a cheque to Solwai Lawyers in the sum of K872,465 in settlement of the costs owing by Electoral Commission. The cheque was deposited to the general operating account of Solwai Lawyers on 17 January 2019. The State alleges that the accused dishonestly applied those monies to his own use and the use of others, and did not reimburse the complainant for the monies he expended in funding the court proceedings.
   
3. The State called three witnesses and tendered a number of documents, including financial records and the accused’s record of interview.
   
4. The complainant, Simon Solo, former Governor of West Sepik Province, gave evidence that he engaged the accused as his lawyer to pursue his case. The accused was willing to take on the case because they were related. Mr Solo did not have enough money to pay legal fees up front so he paid instalments of K135,000. He compiled the bill of costs with the accused, which was later taxed. In his view the entirety of the K872,462 should be paid to him as during the proceedings he met all expenses including air fares, meal allowances, accommodation and car hire, for himself and key witnesses. He also paid K10,000 in each of the years 2013 to 2015 for the accused’s practicing certificate. He was unable to produce receipts and invoices as he gave them to the accused three times for the purpose of the taxation proceedings. After he heard that K872,462 had been paid he asked to meet with the accused and Paul Mambei to discuss the breakup of the monies so that the accused could get his share of outstanding legal bills and he could get his share of the costs of proceedings. He did not hear anything for two weeks so he went to their house at Gerehu to discuss the breakup. The accused asked for his personal account. He gave his BSP account number and he was thinking that his share would be paid to his account. He never received any monies and he had bills to settle. His wife and brother provoked him so he reported to the Fraud Squad. In cross-examination he denied that he received K300,000 in cash and support from Amkat Mai in support of his cases against Tonny Wouwou. He did not get anything.
   
5. Jackson Pinen was the executive officer to Amkat Mai, the Governor of Sandaun Province from 2012 to 2017. To date Amkat Mai has not paid the costs owing to Mr Solo but the National Alliance Party has made a commitment to pay. He was cross-examined about a meeting with the accused and Paul Mambei to discuss the payment of the costs. He recalled several meetings. He denied saying that Amkat Mai had paid the costs to Mr Solo but he did say that Amkat Mai assisted Mr Solo regarding the election petition case he filed in 2017 against Tony Wouwou. He assisted Mr Solo both financially and in terms of materials. All that assistance was given to Mr Solo in the hope that Mr Solo would win the petition, and with Amkat Mai being the second runner up, it would be anyone’s game. That is why Amkat Mai assisted him.
   
6. Anthony Sinen is the investigating officer. He attempted a mediation between Mr Solo, the accused, Emmanuel Solwai Mambei, the principal of Solwai Lawyers, without success.
   
7. Exhibit P1 is the annotated National Court Bill of Costs in respect of EP No 16/2012 brought by Mr Solo against Amkat Mai and others.
   
8. On 23 June 2017 the Registrar certified that costs had been taxed and allowed at K1,163,283, including GST, in the National Court proceedings: Exhibit P3, Certificate of Taxation.
   
9. On 14 June 2017 the Registrar certified that costs has been taxed and allowed at K154,000 in the Supreme Court proceedings: Exhibit P10.
   
10. On 19 July 2017 the accused wrote on behalf of Solwai Lawyers to Amkat Mai on 19 July 2017 seeking K38,500 and K290,820.75 in costs owing in the Supreme and National Court proceedings, respectively: Exhibit P11.
    
11. On 12 January 2019 a cheque was drawn in the favour of Solwai Lawyers in the sum of K872,462 by the Department of Finance: Exhibit P5.
    
12. On 7 February 2019 the accused wrote to the police on behalf of Solwai Lawyers in response to the police complaint by Mr Solo stating that: 75% of costs were to be met by the Electoral Commission with Amkat Mai to meet the balance of 25%; the agreement was that of the K872,462 paid by the State, K154,000 was to be deducted for legal fees for the appeal, the balance to be divided three ways between Mr Solo, Paul Mambei, a big brother, to take care of creditors, and the accused and the firm; Paul Mambei rang Jackson Pinen, Amkat Mai’s Executive Officer, to ask when Amkat Mai would pay the K290,000 owing by him; Jackson Pinen told him that Amkat Mai had already paid the complainant more than K350,000 in cash and disbursements to run the election petition against Tonny Wouwou; on that basis Solwai Lawyers made a decision that instead of giving the money to Mr Solo they would pay the witnesses and service providers themselves; they wanted Mr Solo to explain the breakup of the K290,000; Solwai Lawyers paid more than K250,000 more than it was agreed it would pay; Mr Solo then sought assistance through his associates to involve the police; Mr Solo only ever paid K40,000 at the National and Supreme Court; services were provided for free because Mr Solo was a wantok; and Solwai Lawyers wanted the police to investigate the misappropriation of K290,000: Exhibit P8.
    

Defence Case

13. The accused gave evidence in his own defence. The complainant approached him and asked him to act for him because he had no money. The accused told him he would help him in what way he could and if he wins he could recover the money from there. He recalls that the complainant gave him K5000 to travel to Vanimo. He denied that the complainant paid for his practising certificates. He never received K130,000 from the complainant. To date no money has been paid by Amkat Mai. As the lawyer he is entitled to his fees out of the costs paid. As to the service providers the complainant says he owes money to, he understands that service providers provided a service to the complainant because in his time as governor he had done so much for them and so they helped him in his case as an act of goodwill. There were other service providers he, the accused, engaged to provide services during the case, like meals etc. He told them he would try to settle when the case was over. He identified receipts showing deposits to witnesses and service providers totalling K115,500. A further K27,826 was given to Rosemary Keris, an officer at the Department of Finance, to refund the costs she incurred in following up the costs payable by the Finance Department. Amkat Mai’s Executive Officer told him that Amkat Mai had paid his costs to the complainant, K290,000, in another election petition matter against Tony Wouwou in 2017. There is also a further K500,000 owing from the State in satisfaction of their 75% - K1,163,283 less 872,462 paid. The balance has been held back because of this case. He made efforts to get K290,000 from Amkat Mai but his EO told him that the monies had been paid to the complainant.
    
14. Under cross-examination he explained that payments to witnesses were paid under “Allowance to Parties, Part 5” of the Bill of Costs. For instance, in the case of a number of witnesses there was insufficient money to meet costs so he paid only K6000 each. Where there was insufficient monies he took it from the lawyer’s fees. The costs paid were not the complainant’s, they were the law firms, not even his as the lawyer in charge of the case, but to cover Solwai Lawyers’ costs. As for his statement in Q&A Q66 of the Record of Interview, Exhibit P7, he maintained that it was a correct statement. The costs ordered by the court are the lawyer’s costs and is not in fact for the petitioner. The money is Mr Solo’s but that is what he owes Solwai Lawyers. If the complainant had paid legal fees he would get the monies after he took out his costs but here the complainant only gave him K5000. There was an initial agreement that costs would be split three ways between the complainant, himself for legal fees and to Paul Mambei to settle creditors. But the complainant reneged. He paid creditors and service providers and he was hoping with the balance from the Finance Department he would pay everyone including Simon Solo himself. There was a further K150,000 taxed costs from the Supreme Court appeal to take into account. There was an agreement between the complainant, their big brother, Paul Mambei, himself and the principal of the law firm to split the Electoral Commission monies three ways between the complainant, the accused and the law firm itself. But the complainant did not disclose the money paid to him or used by him during the election petition matter he filed with Amkat Mai against Tonny Wouwou. That is the reason they decided to distribute the monies to the creditors.
    

State Submissions

15. It was initially the State’s case that the entirety of the K872,462 paid was dishonestly applied by the accused. In submissions on verdict the State submitted that the accused was entitled to his costs for pre-trial fees, lawyers’ fees and taxation, to a total sum of K630,500 as ordered following taxation. From that, however, a sum of K135,000 contributed by the complainant during the course of the election petition should be deducted, leaving the accused with K495,500 he was entitled to, but to which K147,667 should be deducted, being the amount which was expended by Mr Solo, not on legal fees but on other expenses, taking the figure misappropriated to K562,030.
    
16. It is unclear why the accused or his law firm should have to bear the costs of other disbursements from their legal fees.
    
17. Putting that aside, the State’s calculations are somewhat unclear. Applying its approach, the figure on my calculations is: K872,462 – K495,500 (K630,500 – K135,000) plus K147,667, which equals K524,629.
    
18. The State further conceded, however, that the accused was entitled to use the monies to pay service providers and meet witnesses’ costs as shown in Exhibits D1 to D5 (excluding the payment to Rosemary Karis) to a sum of K115,500. On that basis the State’s figure would be K409,129.
    

Defence Submissions

19. Defence counsel submitted that the accused was engaged by Mr Solo and acted for him in the court of disputed returns initially in the National Court and then in the Supreme Court. The accused relies on a claim of right to the monies in that he and his law firm were entitled to the monies that were paid to them. Furthermore, the evidence shows that the monies were deposited to the general account of Solwai Lawyers. Ownership passed there and then in the absence of any direction by the court having made the order for the payment of costs payable to Solwai Lawyers to be held in a trust and used in accordance with a direction or for someone else. There is no evidence of such, either by contract or agreement. When the monies were credited to the account of Solwai Lawyers it became the property of Solwai Lawyers and entirely at the discretion of the firm given that no such direction or trust by the court, by law, or by agreement by the parties. In addition, there is no evidence that Mr Solo paid the service providers he says he paid - no receipts and no other evidence supporting the claims. Really Mr Solo is claiming he is entitled to all of the monies paid when they are the fees the law firm is entitled to recover. There was an agreement to split the monies three ways but it did not eventuate because the complainant breached the agreement by being paid directly by Amkat Mai in cash and through financial support for his 2017 election petition.
    

Misappropriation

20. Section 383A of the Criminal Code creates the offence of misappropriation:
    

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

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

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

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

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

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

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

(3) For the purposes of this section–

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it.

21. To establish the offence the prosecution must prove beyond reasonable doubt the following elements, such that the accused:
    
    • (a) applied;
    • (b) to his own use or to the use of another;
    • (c) property;
    • (d) belonging to another person;
    • (e) dishonestly.

Havila Kavo v The State (2015) SC1450.

22. Section 23(2) of the Criminal Code contains the statutory defence of honest claim of right.
    

23 (2) A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

23. The following principles were recently summarised in David Kaya and Philip Kaman v The State (2020) SC2026. A claim of right only has to be honest, it does not have to be reasonable (Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231, Sebulon Wat v Peter Kari [1975] PNGLR 325).
    
24. If the accused presents evidence of an honest claim of right the State bears the onus of disproving it. It is not for the accused to prove that he had an honest claim of right. It is the duty of the State to prove that he did not have an honest claim of right (Magr v R [1969-70] PNGLR 165, Francis Potape v The State (2015) SC1613). The State must disprove (exclude) the defence beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318). Whether an accused has an honest belief is a question of fact to be determined by the evidence in each case. It is not a matter of an accused simply saying on oath that he had an honest belief and having that assertion accepted, as such evidence might be unconvincing as it was, for example, in R v Hobart Magalu [1974] PNGLR 188 and The State v Henry Gorea [1996] PNGLR 141. Once the defence operates, it is a complete defence to any offence relating to property of which fraudulent or dishonest intent is an element: Wartoto v The State (supra).
    
25. In addition, the belief must be one of legal entitlement to the property and not simply moral entitlement: Ikalom & Anor v The State (2019) SC1888 adopting MacLeod v R [2003] HCA 24; (2003) 214 CLR 230; and The State v Felix Luke Simon (2020) N8183 applying R v Pollard [1962] QWN 13, 29; R v Bernhard [1938] 2 KB 264, 270; and Harris v Harrison (1963) Crim LR 497. Furthermore, whilst a claim need not be reasonable, one that is unreasonable may be less likely to be believed as being genuinely or honestly held: The State v Felix Luke Simon (supra) adopting Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230.
    

Applied

26. The records show that K872,462 paid by the Finance Department was deposited into the Solwai Lawyer’s account. The monies were applied by the accused to his own use and the use of others. The evidence shows that K465,524 was transferred into the accused’s personal account from which various transfers and withdrawals were made. The balance of K406,938 was applied from Solwai Lawyer’s account by its principal, Emmanuel Solwai Mambei. It is clear that Emmanuel Solwai Mambei had control over the account but the accused does not dispute that he agreed with Emmanuel, or effectively counselled Emmanuel, to apply the monies for a purpose other than to the complainant. Rather, the accused says he was entitled to do so. All of the monies were owing to the firm. Whilst they had an agreement to split the monies three ways, when he and his principal heard that Mr Solo had received monies from Amkat Mai, they agreed to meet their legal costs and pay the service providers.
    

Dishonestly

27. The critical issue in this case is whether the monies, or any part of them, were applied dishonestly.
    
28. The State’s case initially proceeded on the basis that the accused dishonestly applied the totality of the costs paid. It is the case that the monies were awarded to the complainant by the Court. They do belong to him.
    
29. It is my understanding, as a matter of general principle, that upon receipt of monies paid pursuant to a costs order, the monies should be held in a lawyer’s trust account pursuant to a lien until such time as the costs are released by the client for the payment of fees. I am very concerned that the accused did not obtain a release from the complainant before applying the monies in this case.
    
30. But lawyers don’t work for free, and orders for costs are intended for just that, to cover costs. The accused and his firm had a legitimate right to pursue the legal costs incurred by Mr Solo during the National and Supreme Court cases.
    
31. Furthermore, there is no dispute that it was Mr Solo who approached the accused and asked the firm to act for him on the basis that he was unable to pay fees upfront.
    
32. Whilst I am concerned about the complete lack of fee notes and receipts to support the National Court Bill of Costs, Exhibit P1, it is not in dispute that costs were incurred as originally set out in that bill to a total value of K2,331,392.10. The State does not dispute the validity of the costs, which were prepared in consultation with the complainant. On that basis Solwai Lawyer’s legal fees were K879,362.50 prior to taxation at the National Court.
    
33. As above, the State’s original case has changed. It now says that the accused was entitled to keep his legal fees but only up to the taxed amount of K630,500. It is not clear to me how it obtained that figure. It doesn’t appear anywhere in the annotated bill of costs, nor does the State explain where it obtained the figure in its written submissions. The State focused almost entirely on what costs were owing to other service providers but that does not change what was owing to the accused or his law firm.
    
34. The Registrar was not asked to provide an affidavit and the bill of costs was not formally produced. Nevertheless, it was admitted by consent and the accused himself relies on it. It contains markings (ticks) made by the Registrar indicating where costs are approved and handwritten alternatives where costs are reduced. The total taxable amount is clear at K1,163,283, inclusive of GST. There are multiple notations and calculations, however, and it is not possible for me to reconcile the final taxable amounts with the handwritten figures in the bill itself. It also appears that the handwritten notation on the bottom of page 7 has been cut off.
    
35. On my calculations, taking the handwritten totals inserted at the bottom of each page by the Registrar, Solwai Lawyer’s taxed legal fees at the National Court total at least K853,576, subject to whatever figure is missing on page 7.
    
36. It should be noted that the State’s case that the accused was only entitled to the taxed amount of his legal fees is in general terms misconceived. The authorities it relies on relate to the position between the parties, not between a lawyer and his client. Putting aside s 66 of the Lawyers Act, which has no application in this case, a lawyer is not limited to claiming only the taxed amount of fees against his client. For instance, if a client engages a large law firm, with senior partners, experienced counsel, multiple researchers, etc, the cost of his matter may well be very large. If he succeeds, the taxation process determines what part of his costs the losing party must meet, but it does not affect what he is obliged to pay his lawyer himself. It is often the case that the taxed costs are not enough to meet a lawyer’s fees. It is for that reason that many lawyers require clients to pay monies up front into their trust accounts. It is also for that reason that fee arrangements should be governed by written agreements.
    
37. As above, the State’s case is that the accused dishonestly applied K409,129 but this is based on a total taxed legal fee figure of K630,500. Adjusting for the taxed legal fee figure of K853,576, the amount is: K872,462 – K718,576 (K853,576 – K135,000 amount paid in instalments by Mr Solo) = K153,886 + K147,667 (paid by Mr Solo to service providers) = K301,553. The State further conceded, however, that the accused was entitled to use the monies to pay service providers and meet witnesses’ costs as shown in Exhibits D1 to D5 (excluding the payment to Rosemary Karis) to a sum of K115,500. On that basis the State’s figure would be K186,053. As I have said, however, I do not see why the amount of other costs should be deducted from legal fees, so the figure is K38,386 (K186,053 – K147,667).
    
38. The evidence shows that the complainant, the accused, and the principal of the law firm are all related. There is no dispute that it was Mr Solo who approached the accused and asked the firm to act for him on the basis that he was unable to pay fees upfront. The accused says it was agreed he would recover costs if the case succeeded. That seems entirely reasonable.
    
39. According to the bill of costs, the complainant incurred a total of K879,362.50 in legal fees at the National Court before taxation. The amount allowed at taxation appears to be K853,576. According to P10, a further K154,000 in costs was taxed at the Supreme Court. The accused was not challenged about the fact that that figure represented legal fees and given the nature of an appeal I accept that evidence. It is not clear what the total cost incurred was before taxation in that case.
    
40. The accused concedes that he agreed only to seek costs from the complainant if the case was successful. It is unclear whether he believed he was entitled to the total legal fees incurred or only the amount determined at taxation. He also conceded, however, that the initial agreement changed when it was agreed the monies paid would be split three ways.
    
41. The three way split was not clearly put to Mr Solo as it should have been pursuant to the rule in Browne v Dunne by defence counsel. At the same time, however, the accused has been claiming this arrangement since his letter to police, and the record of interview, both of which were tendered by the State and should have been addressed by it as part of its case. In addition, whilst Mr Solo did initially say in his evidence in chief that he was entitled to all of the monies paid by the Finance Department, he later said that there was some agreement reached between himself, the accused and Paul Mambei to “share” the K872,462 paid by Finance. In particular, he says that he hoped that “the accused could get his share of outstanding legal bills and he could get his share of the costs of proceedings”. In the circumstances, I accept the accused’s evidence.
    
42. I understand why Mr Solo believes he should have been paid at least some of the monies received by the accused. I accept that Mr Solo paid K135,000 in instalments up front but as he said it was “bit by bit”, and there are no records. On that basis there would be a figure of K38,886 more than the amount of taxed legal fees owed at the National Court stage applied by the accused, but still less than the total amount of taxed legal fees (and still less than the untaxed figure at the National Court). It also appears, however, that other costs, in addition to legal fees, were incurred by the law firm, although the figures were not made clear by the defence.
    
43. There are number of matters I am concerned about in this case and that are unclear on the accused’s evidence, including the lack of supporting documentation under the bill of costs; the lack of formal agreement between the law firm and the complainant; and a lack of documentation properly recording the application of the monies received against the bill of costs. I am very concerned about the payment by the accused to an official to follow up the payment of the Department’s costs. I am also concerned that the accused went ahead to apply the monies without consulting Mr Solo. That was not appropriate regardless of the agreement. I am unable to understand where he gets the figure of K500,000 still owing by the State.
    
44. Ultimately, however, the figures on both sides are unclear. This Court is not here to resolve civil disputes. Moreover, it is not a question of how much might actually be owing between the complainant and the accused and his law firm but whether the State has established beyond reasonable doubt that any of the monies were applied by the accused dishonestly.
    
45. I am conscious of the relationships involved in this case, and that the accused acted on the basis that he would recover costs if the case was successful. That is not to suggest that monies cannot be stolen by a family member. Of course they can. But it does appear to me that the arrangements or expectations on either side were not clearly understood.
    
46. I also take note of the agreement to split the monies received from the Finance Department three ways and the evidence from Amkat Mai’s executive officer that he did inform the accused or his associates that Amkat Mai did provide financial support to the complainant’s most recent election petition.
    
47. In addition, the evidence shows that not all of the monies were applied to the use of the law firm or the accused. Of the K872,462 paid into Solwai Lawyer’s account, K115,500 was paid towards meeting witness and service provider costs, leaving a balance of K756,962. Even if the accused only believed he was entitled to the taxed amount of costs for the National Court cases, the K756,962 applied to himself and the law firm is less than the K853,576 taxed legal fees at the National Court, and less than the K1,007,576 in taxed legal fees when combined with the Supreme Court matter.
    
48. Furthermore, it is significant that the accused applied monies towards meeting the costs of service providers. In general terms that is not consistent with the conduct of someone who is acting with a dishonest intent.
    
49. Having regard to the totality of the evidence, and the matters outlined above, I cannot be satisfied of the accused’s dishonesty, and the State has not excluded beyond reasonable doubt the possibility that the accused honestly believed he was entitled to the monies when he applied them.
    

Property

50. I wish to make one further comment. Defence counsel made an application to quash the indictment, then a no case application, and largely focused on the issue of ownership of the property in question as the key issue in this case. He sought to distinguish this case from David Kaya and Philip Kuman v The State (2020) SC2026 on the basis that the monies were paid into a lawyer’s trust account in that case and not a general operating account as in this case, and it was because the monies were paid into a trust account in that case that they remained the State’s monies.
    
51. That is not what Kaya stands for and is misconceived. The monies in Kaya were provided for the purpose of compensating landowners but were never applied for that purpose. Payment into the trust account or otherwise is beside the point. Kaya simply affirms what is apparent on the face of s 383A(3)(d) of the Criminal Code, and what was made clear by the Supreme Court in Brian Kindi Lawi v The State [1987] PNGLR 193, and in numerous cases since, including Havila Kavo, supra and Wartoto v The State (2019) SC1834. The State retains ownership in monies until the monies are applied for the purpose, or according to the condition, for which they are provided. The monies in this case were provided to meet the costs of the legal proceedings and until they were applied for that purpose the State retained an interest in the monies, and would therefore be the owner for the purposes of s383A(3)(d). If the evidence established that the monies, or some of them, had not been applied for the purpose of meeting costs then those monies would belong to the State.
    
52. Verdict: Not guilty of misappropriation contrary to s 383A of the Criminal Code.

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