State v Aho [2022] PGNC 271; N9742 (28 June 2022)

N9742

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 100 & 101 OF 2021

THE STATE

V

GIPORAH AHO

Goroka: Miviri, J
2022: 13^th May, 28^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation Section 383A CCA – Money received for Bail – dishonesty denied – Policewoman charged Complainant – No formal Police Documents evidencing – No Information District Court – No Appearance District Court – Money Paid in Possession of Defendant – Not Paid into State Accounts – Circumstantial Case –No Other Reasonable Hypothesis – dishonest application – guilty of misappropriation s383A CCA.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Official Corruption Section 87 – Policewoman – Complainant & Two Others Brought for Assault – No Charges Against – Three Locked in Cells – No Entry In Occurrence Book – K 1400 paid – No Receipt – No Process in Court – Abuse of Office –verdict guilty.

Fact

Accused received K1400.00 from the complainants for bail. She did not charge the complainant nor did she lay any information on the matter. Nor was the matter processed in Court to a verdict and sentence. Money never recovered.

Held

K1400 paid in possession of Accused.
Not paid ever into State Accounts.
No other hypothesis other than guilt.
Dishonesty established.
No entitlement to money.
Guilty of Misappropriation.
Policewoman.
Abused office.
Money received on account of office.
Guilty of official corruption.

Cases Cited:

Lawi v The State [1987] PNGLR 183.
State v Francis Natuwohala Laumadava [1994] PNGLR 291
Mollo, The State v [1988-89] PNGLR 49
Yaip Avini v The State [1997] PNGLR 212
Kavo v The State [2015] PGSC 48; SC1450
Rokpa v The State [1994] PNGLR 535; State v Liriope [1990] PGNC 58; N916
Pawa v The State [1981] PNGLR 498

Counsel:

J, Noma, for the State
V. Agusave, for the Defendant

VERDICT

28^th June, 2022

1. MIVIRI J: This is the verdict of a policewoman who received money for the bail from the complainant who was charged presumably with assault and threatening words. She did not give that money back nor did she charge and process the complainant in court.
   
2. Accused was employed as a policewoman in the public Safety section at the Goroka Police Station and was on duty on the night of 23^rd November 2020. She took a complaint from one Mirriam Kitene Kohitete, against one Mazzie Soya for an allegation of assault upon her with a beer bottle at a public area. And Mazzie Soya was accompanied by two others Serah Auwo and Miriam Aitove who helped in her assault by the Complainant. They also swore at her. Acting on that complaint she took all three into custody at the Police Station cells after arresting them. They spent the night in the cells and the next morning accused stated bail was open to them in the sum of K3000.00. To which the complainant responded that they could not afford. But could afford K1400.00, K800. 00 for the complainant and K300.00 each for the other two, giving the total figure K1400.00. This was paid and accused received the money K1400.00. She did not write out a receipt due to the complainants for the payment made. Nor did she produce an entry into the Occurrence Book. There was also no information laid in the District Court on the subject by the Accused. She received the money on account of her duties as a policewoman against the Complainant. And used the money personally benefitting herself. She abused her office and corruptly used the money.
   
3. The principal accused in the matter, Mazzie Soya complained to Police that together with her accomplices were not charged of the allegation made against them. Nor where they processed with the bail money that they paid receipted by the Accused. And charges laid of the complaint by Mirriam Kitene Kohitete. The police pursued upon the complaint and charged the Accused with firstly misappropriation pursuant to section 383A. And section 87 of official corruption. She denied both charges so a trial was conducted to prove the allegations.
   
4. The first charge was pursuant to section 383A misappropriation of the Criminal Code which reads; “(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 five years except in any of the following cases when he is liable to imprisonment for ten 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 K2000 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;

(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 thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into 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;

(d) persons to whom property belongs to 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.”

5. The elements of section 383A Misappropriation are; - (a) dishonesty; (b) application of the said property to her own use or that of another; and (c) property belonging to another, Lawi v The State [1987] PNGLR 183. Dishonesty is a question of fact and would depend on the status of mind of the accused. “And when a Judge considers the facts on how the property was applied, he uses the ‘ordinary’ standards of reasonable and honest people’ test to determine whether or not the property so applied...Dishonest is defined in the Oxford Advanced Learners Dictionary of Current English as, “intended to cheat, deceive, or mislead, The State v Francis Natuwohala Laumadava [1994] PNGLR 291 at 293.”
   
6. The second charge was under section 87. OFFICIAL CORRUPTION.
   

(1) A person who–

(a) being–

(i) employed in the Public Service, or the holder of any public office; and

(ii) charged with the performance of any duty by virtue of that employment or office, (not being a duty touching the administration of justice),

corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

(b) corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

(2) A person shall not be arrested without warrant for an offence against Subsection (1).

7. Principally there are two important elements that must be proved here. Firstly, it must be proved corrupt use of particular office for gain. And secondly it must be proved the duty imposed by holding of office. This is illustrated out in Mollo, The State v [1988] PGNC 68; [1988-89] PNGLR 49 (6 May 1988). It was determined there that, “I apply what I said in Kirivi’s case. The evidence clearly shows that Major Loa did not use his position as Major in the Defence Force in charge of the G E Workshop at Murray Barracks for gain — i.e., to receive the K2,000 Mr Mollo gave him. This being the case it cannot be said Mr Mollo gave the K2,000 to Major Loa for Major Loa using his public service position in the Defence Force to his advantage. I acquit both accused and discharge them.”
   
8. Having laid out the law from which arises the charges, now the evidence led by the State. The first witness on oath was Mazzie Soya, 33 years old, unemployed originally from Notofana village resident at 6-mile Goroka. She was educated to grade 10 without any formal employment. She sustained herself by selling chicken. She was from the EBC church. She testified that, the Accused came and took her into custody with Serah Auwo and Mirrian Aitove. And it was over an assault that she committed upon one Mirriam Kitene Kohitete on the 21^st of November 2020, assisted by two others, Serah Auwo and Mirrian Aitove. And that the accused came in the early hours of that day Saturday 21^st November 2020 and picked her with two others Serah Auwo and Mirrian Aitove and took them into custody at the Goroka Police station.
   
9. There the accused explained to her that her bail was set in the amount of K2000.00 because she had four charges each was set for bail at K500.00 hence the total amount due on her part before she could be released on bail was K2000.00. And for Serah Auwo and Mirrian Aitove each was accountable to pay bail in the sum of K500.00 each. As they were charged with one charge each of assault. And when that happened, she send word to have her mother to have K1400.00 paid for her bail which was in her purse because together with the other two, they were subsistence farmers, meri bilong ples, and could not afford the sum that she gave of K2000.00. Accused agreed so that payment was made.
   
10. This is confirmed in her statement Exhibit D1 that the defence have tendered as prior inconsistent Statement. She confirms all this evidence in this Statement in all material terms, stating for instance that on the Tuesday 24^th November 2020 at 5.30pm at the Goroka Police Station without an official Bail receipt, together with her two co accused they were released from the Police Cells. Because she was paid the bail money and accused instructed the cell guard to release us and to come back the next day to get our bail receipt and to attend our case in court on Friday the 27^th November 2020. And on that day together with her co accused they checked the bail receipt in the bail book but their names were not there. And also, they went to Court and their names were not called in Court. Nor did the Police Prosecutors call their name at the Court. So, on Monday 30^th November 2020, three of them went to the Court again. It was the same their names were not called.
    
11. So, on Tuesday 1^st December 2020 at 9.00am Together with my uncle we confronted my arresting officer the Accused at the Court house, she apologised for the delay and stated that her child was sick and she went to Chimbu to be with her child there. She also told us that the Complainant wanted us to solve the problem outside of the Court. And we said No. And on Wednesday 02^nd December 2020 at 9.30am with my uncle, we told the arresting officer accused that She tell the other party that we the defendants wanted the matter to the Court to proceed. She replied that she will meet with them on Friday the 04^th December 2020 and talk with them over the matter. And further that the matter will be in court on Tuesday 08^th December 2020 and if we agreed for the matter to be settled out of Court, we will get the bail money back.
    
12. That Statement is consistent in all material particulars with her evidence in court on oath. There is no inconsistency. She has maintained all along that after payment of the subject money together with her co accused they were released from the Police Cells but never got any official receipt, or any other documents to evidence that payment to the Accused. That consistency is maintained up to the present and that money has not been accounted for if indeed it was in the possession of the Accused officially in her capacity as their arresting officer. That was a matter that was made on 23^rd November 2020. Up to the date of this Judgment there is no money paid back to the witnesses by the Accused that it was not officially pursed. Nor has a receipt of the bail money returned to the witnesses evidencing it was going following established practice with the Police Department of the receipt of public moneys.
    
13. What the accused has stated in defence on oath was that the money is with her all along as she gave evidence. But when the Prosecutor insisted for its payment, she did not show it out in Court that, here it is I am now paying it in court as proof that I have had it along up to now. That is not the evidence despite assertions that she had it in her possession. Her own record of interview exhibit P1 pidgin original and English translated exhibit P1(a) dated the 15^th December 2020 conducted with Detective Senior Constable Joe Mangre who also gave sworn evidence in court, confirms that there was no payment made to him also, evidencing that the money was still in her possession even then. In it she held the rank of First Constable of Police and had served for 12 years and was working at the Goroka Police Station that day 23^rd November 2020. She would finish her shift at 8.00am in the morning having started it at 12.00 midnight. She had received the subject complaint against the witness and two others who had assisted her assaulted another woman. And on the subject day saw the complainant witness in the original matter who had come with many others over the matter. So, She went to six mile and arrested the witness now with the two others upon that complaint and locked them in the Police Cells 24^th November 2020 at 10.30am. They were three women, Mazzie Soya, Serah Auwo, and Marrian Aitove who were to pay K1000 as Police Bail each, a total sum of K3000.00 for bail. But that did not happen as they did not have the means so agreement was reached for the payment of K1400.00 as their bail. And that money was paid over to her by the relatives who were outside for the release of the witness and her co accused. Accused confirms that payment she received, question 20 of the record of interview, and release on bail with what happened set out above in the evidence of the witness Mazzie Soya.
    
14. And she states at Question 22 “that the officer of the Shift Supervisor was closed, there was nobody so I took the money home that was on the 25^th November 2020 on Wednesday.” And at question 23 she states that on 23^rd November 2020 Thursday, “I came and saw Chief Sergeant Nelson Narapal and he told me that, no cash bail, go to the bank and deposit it in the back account.” And at question 24, she states that she had a problem and did not go to the bank. And on the 08^th December 2020 she was interviewed by Police in respect of the matter during the course of which she never handed that money back if indeed it was in her possession all the time. Even up to now it has not been handed back into court evidencing that it was State property as a result of the charge that she laid upon the witness with the two co accused. It was her responsibility as a First Constable of Police on duty that night. She does not dispute that fact nor of having taken the witness and co accused into custody and having locked them up. And of being paid that money K1400.00 for bail. And that it has not been paid back nor has she issued a bail receipt. Or that it was not paid into the bank account evidencing. No deposit slip at the bank has been produced and she has admitted that she did not deposit it into that account.
    
15. But the fact of the matter is that she received this money on account of the duties that she performed as a policewoman a First Constable on duty that day at the Goroka Police Station. That money K1400.00 came into her possession on account of the State, who employed her in that capacity which she discharged to get possession of that money. But she did not issue any official bail receipt since up to the date of the hearing and even now. It means although that money came into her possession as a servant of the State, she did not evidence by official government accountable documents to evidence that fact. Her confirmation of the evidence of the state of this fact means that she is not discharged to show that she still has custody of that money even with out issuing the bail receipt, or any formal evidence showing she did not dishonestly apply that money to her own use the subject of the first Count pursuant to section 383A of the Code. And Secondly that She corruptly obtained that money in her official capacity from the witness and co accused. Which money was on account of the discharge of her official duties as First Constable of Police who had charged them and locked them in the police cells and the money was their bail pursuant to section 87 (1)(a) (i) (ii) of the Code?
    

She is likened in my view with Yaip Avini v The State [1997] PNGLR 212 (15 July 1997) where the appellant got K100,000.00 for road in Hapohandong – Makini Road but the road was never built but the defendant used the money personally. Here she has received the money K1400.00 but has not accounted official by a bail receipt, nor independently verified by the appearance of the witness and co accused in the District Court for the assault charges that she had entered and laid against them. That is the evidence that is independent of either of the Accused and the witness setting apart who is telling the truth. It corroborates independently the assertions made by the witness and not the Accused. If indeed she had followed to the letter of the law her duties it would be verified by the Goroka District Court confirming that She had done what was her official duties. It is clear that has not happened up to now from 23^rd November 2020 up today 28^th June 2022 or on the date of trial 13^th May 2022.

16. She has given no reasonable explanation justifiable to exonerate her from criminal responsibility that she has and was and is in possession of K1400.00 not her money but of Mazzie Soya paid for her bail. Which money was given her in exchange and on understanding that she would give them bail from the charges discharging her official duties as the Police arresting officer there. It is not the same situation as in Kavo v The State [2015] PGSC 48; SC1450 (21 August 2015), where there is authority for the way that the appellant acted. Here there is no evidence confirming independently she has discharged that official duties she had as the arresting officer of the Accused. There is no information pending in the District Court against the witness and co accused.
    
17. What has happened is that it is open on the evidence to make the finding that this was money that was given for a specific purpose not executed and therefore misappropriation Rokpa v The State [1994] PNGLR 535; State v Liriope [1990] PGNC 58; N916 (1 October 1990). Using the test of ordinary reasonable persons, it is evident in my view without any doubt that the conduct of the accused was dishonest within the meaning of Lawi (supra) and The State v Francis Natuwohala Laumadava (supra). I find her on the basis of this evidence applied to the law as being dishonest firstly, secondly there is no reasonable hypothesis open other than her application of that money to her own use, Pawa v The State [1981] PGSC 16; [1981] PNGLR 498 (27 November 1981). It was paid to her she admits its receipt K1400.00 in cash. And there is no bail receipt nor an information pending in the district court against the witness and co accused since their detention at the Police cells on the 24^th November 2020 up to now 28^th June 2022 or even at trial date 13^th May 2022. There is no other reasonable hypothesis other than she has applied that money K1400.00 in cash received on account of the State in her duties as the arresting officer of the witness and co accused. And that she has used applied that money to her own use. Which in my view discharges the burden that the State has of the elements of the charge of misappropriation contrary to section 383A of the Code proved beyond all reasonable doubt against the accused. I find her guilty of misappropriation and convict her of Count 1 on the indictment.
    
18. She was a policewoman first constable of Police and the arresting officer of the witness and co accused at that time when the money K1400.00 was given to her. It had come on account of the position she held as a policewoman officer of the State. The subject money came because of the position which she abused when she corruptly used her position to receive that money. And that was evident in the duties that she carried out, of going out by Police vehicle accompanied by another policeman to where the assault had taken place. There picking up Mazzie Soya, together with Serah Auwo and Mirrian Aitove charging them and placing locking them in the Police Cells Goroka. There is no bail receipt nor court information that all was discharged according to her duties then, First Constable with the Royal Papua New Guinea Constabulary for 12 years on that day. A servant employed by State and in that capacity for which the money came. There is no evidence that the actions she took that day 24^th November 2020 was not honest but was corrupt. She cheated in that office. She abused that office. She was dishonest and when She got that money she got it under the guise of her performing her duties. And clearly beyond all reasonable doubt She did not perform that duty called. She was by that action corruptly in receipt of that money it came on account of her duties. She has not lawfully discharged because by detaining Mazzie Soya with co accused she did not lawfully discharge that duty. She abused and corrupted and benefitted in the sum of K1400.00 on account of that duty. I have no doubts of her guilt in respect of count 2 and convicted her accordingly pursuant. The verdict of the Court in respect of this count is guilty as charged pursuant to section 87 (1) (a) (i) (ii) of the Code. I am firm in view of the case of Mollo, The State v (supra).
    
19. The verdict is guilty of Counts 1 and 2 against the defendant. Because of the conviction I order the refund of her bail money she will be remanded in custody forthwith.
    

Ordered Accordingly.
____________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant