N11102

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 153 OF 2022

THE STATE 
   
v

DESLYN NIGI 
(No 1)

Waigani:    Salika CJ
2023:    3rd & 7th April; 21st March; 1st May & 20th July

CRIMINAL LAW – Practice and Procedure – Contract of Sale of property – Complainant not represented by a lawyer at the signing of the Contract – Contract unfair – Contract of Sale invalid – Section 4 of Fairness of Transactions Act 1993.

CRIMINAL LAW – Practice and Procedure – Drawing of money from someone else’s account for one’s benefit – Without the owner’s consent – Amounts to acts of dishonesty - Amounts to misappropriation.

Cases Cited:
Tiden v Tokavanamur – Topaparik [1967–68] PNGLR 231
Prosecutor’s Request No. 4 of 1974 [1975] PGLawRp 483
State v Gabriel Ramoi [1993] PNGLR 390
State v Francis Laumadava [1994] PNGLR 291
Brian Kindi Lawi v The State [1987] PNGLR 183
State v Jimmy Liriope (1990) N916

Counsel:
Ms L Ilave, for the State
Mr J  Kolowe, for the Accused

20th July 2023

1.	SALIKA CJ: INTRODUCTION: The Accused is charged on indictment with two counts of criminal offences one of false pretence under s. 404 (1) (a) and one of misappropriation under s. 383 A (1) (a) and (2) (d) of the Criminal Code Act.

2.	She was arraigned on the following allegations:

1.	Simon Nigi was a long-serving police officer with the Royal Papua New Guinea Constabulary (RPNGC).  The complainant is his son, Nigel Nigi.  The accused, Deslyn Nigi, is the complainant’s adopted sister.

2.	Simon Nigi passed away on 10th June 2013.  He kept his superannuation with  Nambawan Super Limited (NSL) and at the time of his death, the monies were shared between Simon Nigi’s beneficiaries, with the complainant entitled to 60% of these monies.  The remaining 40% was shared between the deceased’s spouse, Pauline Nigi; his brothers Mathias Nigi and Nigi Waibo; and his daughter Sharon Nigi.

3.	On 1st November 2013, the complainant travelled to New Zealand to train as a pilot at Nelson Aviation College.  So he entrusted the accused, who was an employee with Bank South Pacific (BSP) at the time, to assist him with the payment of his school fees from his entitlement from his  late father’s estate.

4.	From Simon Nigi’s superannuation, the complainant received Two Hundred and Eighty Six Thousand and One Kina, Fifty Toea (286,001.50) into his BSP Bank Account, account number  1001702616.  When the complainant checked his account on the 29th November 2013, he saw that Two Hundred and Eighty-Six Thousand Kina (286,000.00) had been transferred into his account.

5.	He checked the balance of the same account a few hours later on the same day and saw that all the money had gone.  He was informed by the accused that she had transferred the monies into another account from which she will use to pay the complainant’s pilot training fees and for his sustenance in New Zealand.

6.	Nigel Nigi’s fees were not paid in full and he had to leave New Zealand.  When he returned to Port Moresby, he discovered that the accused had opened up a BSP Plus Saver Account, Account Number 1012798052, under his name, and was the sole signatory to that account.  The accused then transferred Two Hundred and Eighty-Three Thousand Kina (283,000.00) belonging to the complainant, to this account.

7.	She then proceeded to make many other transactions from this account.  She spent One Hundred and Thirty-Seven Thousand, Nine-Hundred and Thirty Two kina, Sixty-Six Toea (K137,932.66) to pay for the complainant’s training fees and other expenses while he stayed in New Zealand.

8.	A sum of K99,973 was drawn out of Nigel’s Plus Saver Account  was for a housing project by Deslyn Nigi without the knowledge and authorization of the complainant.

3.	She denied the allegations and a trial ensued.

THE STATE EVIDENCE

4.	The State called five witnesses in support of its allegations namely Nigel Nigi, Asher Waffi, Lyle Daniels, David Moru and Timonty Gitua.  But before the witnesses gave oral evidence, the following documents were tendered into evidence by consent:

No.	
Document	
Exhibit
	
1.	Contract for Sale and Purchase of Property dated 5th July 2013 between Nigel Nigi, Solomon Manikumbu and Deslyn Nigi.	A	
2.	Department of Lands Transfer Instrument Form 1/98 for the property Section 23 Lot 40, Bomana, National Capital District dated 5th July 2013.	B	
3.	Bundle of Emailed Receipts from Public Trust Student Fee Protection	C	
4.	Letter from Asher Waffi SLO BSP Financial Group to Chief Inspector Timonty Gitua dated 19th November 2020 Re: Search Warrant No. 323 of 2019 – Nigel Nigi – Account No. 1012798052.	D	
5.	BSP Bank Statement for Nigel Nigi Plus Saver Account  1012798052.	E	
6.	BSP Bank Statement for Nigel Nigi Kundu Account 1001702616.	F	
7.	BSP Bank Cheque and Deposit Slip dated 11th October 2013 for the amount of K124,667.93.	G	
8.	Record of Interview dated 11th December 2020 between Chief Inspector Timothy Gitua and the accused.	H	
9.	Search Warrant No. 268 of 2020 to Nambawan Super Limited dated 5th June 2020.	I	
10.	Bundle of Documents obtained from Nambawan Super  Limited by Search Warrant No. 268 of 2020:
-	 NSL Member Account Statement for Mr Simon Nigi.
-	Death Certificate of Mr Simon Nigi.
-	Statutory Declaration of Nigel Nigi dated 8th October 2013.
-	Beneficiaries Break Up for the Late Simon Nigi.
-	BSP Statement of Account Business Cheque Account.	
J	
11.	Search Warrant No. 343 of 2019 dated 5th July 2019 to Bank South Pacific Limited.	K	
12.	Search Warrant No. 545 of 2020 dated 4th September 2020 to Bank South Pacific Limited.	L	
13.	Search Warrant No. 793 of 2020 dated 27th December  2020 to Bank South Pacific Limited.	M	
14.	Search Warrant No. 754 of 2020 dated 10th December 2020 to Bank South Pacific Limited.	N	
15.	State Lease for Section 23 Allotment 40 Bomana, NCD.	O	
16.	Record of Interview dated 23rd March 2021 between Detective First Constable Lapison Waira and the accused.	P	

Evidence

Nigel Nigi

5.	This witness is the complainant.  Deslyn Nigi is his adopted sister and is 10 years older than him.  Nigel was 19 years old at the material time the allegations arose.  He completed Grade 12 at the Don Bosco Technical High School in 2012 and decided that he wanted to pursue pilot training in New Zealand to become a pilot.

6.	Simon Nigi was their father and had been a long serving police officer.  His last post was as Provincial Police Commander in the new Jiwaka Province.  He passed away on the 10 June 2013.  Some years before he passed on, he made Nigel Nigi a joint tenant with him to a State Lease described as Allotment 40 Section 23, Bomana, National Capital District, and being whole of the land described as State Lease Volume 18 Folio 128, including improvements erected on the property.  After Simon Nigi passed away, Nigel Nigi became the sole owner of Allotment 40 Section 23.  By then he was only 19 years old.

7.	A month after the death of Simon Nigi on 13 July 2013, Deslyn and her husband Simon Manikumbu told Nigel to go to Rageau, Manua and Kikira Lawyers (RMK) to execute a Contract of Sale of the property Allotment 40 Section 23, Bomana.

8.	At RMK office, four people were present at the signing; Nigel Nigi, Deslyn Nigi, Simon Manikumbu and a female Bougainvillean lawyer representing Deslyn Nigi and Simon Manikumbu.  Nigel gave evidence that no one explained the document and its contents to him before he signed.  He said he was given the last page of the document which happened to be the Contract of Sale document.

9.	Nigel denied giving his consent to sell the subject property and that at the material time he was not in his right frame of mind as his father had just passed on.

10.	He said he had only one Kundu account and no other and that he had a visa debit card for that account which meant he would and could access his account when in New Zealand, but said Deslyn opened a Plus Saver Account under his name which he did not know about and without his consent and which he could not access through his visa debit card in New Zealand.

11.	Nigel said after his departure for New Zealand on the 1st November  2013, Deslyn had phoned him and told him that she had received the father’s entitlements from Nambawan Super Limited and that his share was deposited into his Kundu Account and asked him to check his account balance which he did.  He saw his balance in 6 figures and said he checked some time later that same day and the 6 figure balance he saw earlier was now gone.  He said Deslyn informed him that the funds had been  moved to another separate account.

12.	Nigel told the Court that when he needed money he would call or text Deslyn to transfer money to his Kundu Account and she would do it.

13.	Nigel said he never authorized Deslyn to use his money to buy a house at Taurama which he never knew of and authorized.

Asher Wafi

14.	Asher Wafi  is a Senior Legal Officer with the Bank  South Pacific Group Limited.  He has been with the Bank for about 8 years.  He was called to provide evidence of several search warrants served on the Bank which he executed by identifying them as SW 343 of 2019, SW 545 of 2020, SW 793 of 2020 and SW 754 of 2020.  These are now Exhibits K, L, M and N.

15.	The witness in compliance with the Court orders produced the Bank Statements for the Plus Saver Account under the name of Nigel Nigi Account No. 1012778052 (Exhibit E), Nigel Nigi’s Kundu Account No. 1001702616 (Exhibit F), a BSP deposit slip and BSP Bank Cheque payable to Nigel Nigi for the amount of K124,667.93 (Exhibit G).

16.	Mr Asher told the Court the Plus Saver Account is only accessible by internet banking but was no longer in use.

17.	In relation to the age of vendor in a contract of sale circumstances, he said the bank usually does not know the age of the vendor and that, it usually will rely on the indemnities of the vendor’s lawyers.   In this case the Vendor had no lawyers representing him.

Chief Inspector Timothy Gitua

18.	Like the other witnesses earlier, Chief Inspector Gitua gave sworn evidence that he investigated the complaint in this matter relating to the misappropriation charge.  He is attached to the National Fraud and Anti Corruption Directorate in Konedobu.  He said he received a complaint from Nigel Nigi relating to his late father’s Nambawan Super benefits.    Nigel had alleged that his sister Deslyn Nigi misused those monies.

19.	The witness went on to conduct a record of interview with Deslyn Nigi, now Exhibit H, and obtained from the District Court search warrants which he served on Nambawan Super Limited which is now Exhibit I and BSP Financial Group Limited which have been tendered into evidence through Asher Wafi.

20.	The Chief Inspector said  the documents from the bank and Nambawan Super show the break up of the monies paid out to beneficiaries of the estate of the Late Simon Nigi.  These documents are now in evidence as Exhibit J.  That was the gist of his evidence.

Senior Inspector Lapison Waira 

21.	This witness too is a Police Officer who investigated the complaint in relation to the false pretence charge.  He too conducted a record of interview with the accused relating to the  false pretence charge.   In the course of the interview, he showed the accused a number of documents including the Contract of Sale (Exhibit A), the Transfer  Instruments (Exhibit B) and the State Lease (Exhibit C).

22.	After this witness, the State closed its case.

Defence eVIDENCE

23.	Before the Defence called its witnesses, it tendered a letter purportedly signed by Simon Nigi and Nigel Nigi.  This letter was tendered by consent of the State and is now Exhibit D1.  This letter is important in this case because it shows the wish of the owners to sell the property to Deslyn Nigi and her husband.  I reproduce it here:

“To whom it may concern

Subject:   SALE OF LAND TITLE TO DESLYN NIGI & SOLOMON 
      MANIKUMBU

Sir Madam,

Above subject refers.

We, Simon NIGI & Nige NIGI,  the original Land Title holders hereby declare that we now sell the said Title for a piece of land at section 40 lot 23 at Nine Mile, Nasfund compound, National Capital District to Deslyn NIGI & Solomon MANIKUMBU for development purpose.

Selling price for the piece of land is K130,000.00.

Thank you.

Yours sincerely,

     SIGNED 						     SIGNED 
S. NIGI  DM, DPS                                                     Nigel Nigi
Superintendent
Provincial Police Commander”

Deslyn Nigi

24.	She gave sworn evidence that she was born in 1984, the year her parents Simon Nigi and Pauline Nigi got married.  She was not told by her parents that she was adopted.  As far as she is concerned she is the daughter of Simon and Pauline Nigi.  She said Sharon was born after that and the last child is Nigel.  She said all was fine and good until this incident.

25.	She said in January 2013, their father Simon Nigi got an approved transfer to Jiwaka Province and as he was preparing to move she and her husband Solomon Manikumbu were then looking for a place to buy.  She said her father Simon Nigi offered to sell the property Allotment 40 Section 23 to them for K130,000.00.

26.	She said in January 2013, their father  spoke to Nigel Nigi about selling the  subject property to Deslyn and her husband and Nigel agreed and they both signed a letter which stated that they would sell the said property to Deslyn and her husband for an amount of K130,000.00.

27.	She said she then took this letter to the BSP to use it to obtain a loan to purchase the property.  She said the loan was approved on Friday, 7th June 2013, and on Monday 10th June 2013, their father Simon Nigi passed away.

28.	She said after the passing of their father she asked Nigel if he still wanted to sell the property and she said Nigel agreed to continue with the sale.

29.	She said on 5th July 2013, Nigel called her and she and her husband left work and went to the RMK Lawyers Office to meet Nigel who was already there.  She said Nigel made his own way there and that they did not travel together.

30.	She said at the RMK office, the lawyer gave them the documents to read before signing the documents.  She said Nigel read the documents and signed on his own accord and that no one forced him to sign the documents.  She said Nigel was aware of what he was doing.

31.	She said the K99,973, that she is accused of misappropriating is part of the K124,677.93 loan from the Bank that she and her husband obtained which was paid into Nigel’s Plus Saver Account.  She said Nigel changed his mind and no longer wanted to sell the property to them.  She said as the circumstances changed she and her husband got the K99,973.00 back as a refund of the “purchase price” of the subject property.

32.	I asked her who had the title of the property and she said she and her husband had the title because they were still paying back the loan.  I asked her if she and her husband had informed the Bank of the change of circumstances and she said they did not  and that if they did the Bank would take the property from them all, including from Nigel.  That was the gist of her evidence.

Simon Manikumbu

33.	This witness is the husband of Deslyn Nigi.  They have been married since 2008.  He completed his schooling at Don Bosco Technical Institute in 2006.  He joined the BSP in 2007.  He worked for the  Bank for twelve (12) years before being  terminated in 2013, after Nigel’s complaint to the Bank.

34.	He corroborated his wife’s evidence that Simon Nigi and Nigel Nigi both agreed to sell the subject property to them.  He also said Simon Nigi and Nigel Nigi clearly in their letter dated 25th January 2013 stated their wish to sell the subject property to him and his wife.  He said he and his wife used that letter to seek approval for the loan to purchase that property, as a home loan.

35.	He said after Simon Nigi died, he and his wife informed the Bank of that fact and he said the Bank asked RMK Lawyers if Nigel Nigi still wanted to go ahead with the sale.  He said Nigel still wanted to go ahead with the sale and went to RMK on 5 July 2013 to sign the Contract of Sale.  He said Deslyn called Nigel and they went to RMK.

36.	He said at RMK, the lawyer Eunice Sipison went through the documents with them and they signed the documents.  He said Eunice Sipison was their lawyer and Nigel did not have a lawyer so he said Nigel asked Eunice to also act for him too.  He said Nigel knew that was the date the contract was to be signed and that Nigel was never forced to sign the Contract of Sale.

37.	He said as for the K124,667.93, he and Deslyn got the  monies back from Nigel because he had changed his mind about selling the property to them.  He said he and Deslyn got the full money, K124,667.93 back and they used it for the house project and to renovate the property at Taurama.

38.	In cross-examination, he told the Court that he and Deslyn did not inform the bank that Nigel Nigi had changed his mind and did not want  to go ahead with the sale.  He said they did not inform the bank for fear of losing the property.

39.	He said he and his wife currently live on the subject property and still repaying the loan.

40.	The defence closed its case after the evidence of Solomon Manikumbu.

UNDISPUTED FACTS 

41.	There is some evidence which both sides agreed on and are not disputed.  They are:

•	Their father Simon Nigi was a police officer.

•	Their father died on  10 June 2013.

•	Sharon and Nigel are the biological children of Simon Nigi and Pauline Nigi.  Deslyn Nigi is an adopted child.

•	Nigel had a BSP Kundu Account number 1001702616 for which he had a visa debit card which he used to access funds in New Zealand.

•	Deslyn created a BSP Plus Saver Account purportedly for Nigel, account number 1012798052, but for which she had sole access.

•	Nigel was to receive 60% share of his late father’s Nambawan Super Limited savings and that worked out to be K286,001.50.  The remaining 40% was shared between Pauline Nigi, Simon Nigi’s two brothers and Sharon Nigi.

•	The amount of K286,001.50 was deposited into Nigel’s Kundu Account No. 1001702616 on 29 November 2013 (EXH. F)

•	Deslyn transferred K283,000 from Nigel’s Kundu Account to the Plus Saver Account on 29 November 2013 (EXH F) for which she was the sole signatory.

•	Deslyn used part of that K283,000 to pay Nigel’s fees and living expenses in New Zealand while training to be a pilot and K99,993.00 for a housing project in Taurama.

•	A Contract of Sale was signed by Nigel Nigi and the accused and her husband (EXH A).

•	Nigel Nigi being the vendor was not represented by a lawyer at the signing of the Contract of Sale of the subject property.  (EXH A).

•	Deslyn Nigi and her husband were represented by a lawyer from RMK Lawyers at the signing of the Contract of Sale.  (EXH A).

•	Deslyn Nigi and her husband obtained a loan of K130,000 to purchase the property from Nigel Nigi thereby creating a mortgagee/mortgagor relationship with the BSP and them.

•	Nigel Nigi changed his mind about selling the land, Deslyn Nigi and her husband never informed the BSP of the change in circumstances.

•	In the meantime up to now Deslyn Nigi and her husband and family live on the subject property while Nigel Nigi is living with relatives elsewhere.

•	Nigel Nigi reported the incident to the police which led to Deslyn Nigi being charged.

•	The accused Deslyln and her husband said they continue to  make loan repayments  to the BSP and continue to live on the subject property and said they will give the property back to Nigel Nigi after they discharge the mortgage.

ElementS of Offence of False Pretence AND MISAPPROPRIATION

42.	Section 404 of the Criminal Code reads:
“(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud–
(a) obtains from any other person any chattel, money or valuable security; or
(b) induces any other person to deliver to any person any chattel, money or valuable security,
is guilty of a crime.”
43.	The elements of the charge of false pretence are:

(a)	 A person;
(b)	On a date;
(c)	At a place;
(d)	 (i)    By false pretence; or
(ii)   By wilfully false promise;
(iii)  By partly false pretence and partly wilfully false promise;
(e)	Obtained from another;
(f)	Property;
(g)	With intent to defraud.

44.	The charge of misappropriation under s. 383A (i) 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.”
45.	The elements of the charge of misappropriation are:

a)	A person;
b)	On a date;
c)	At a place;
d)	Dishonestly apply;
e)	(i)     to his or her own use; or 
(ii)    to the use of another person;
f)	Property;
g)	Belonging to another.

BURDEN OF PROOF

46.	The State has the burden of proof to prove each and every element of the charges beyond reasonable doubt through properly obtained and relevant evidence.

47.	The State called its witnesses which have been discussed earlier and is on record.  Similarly, the Defence called its witnesses which is also discussed earlier.

SUBJECT OF THE CHARGE OF FALSE PRETENCE

48.	The subject of the false pretence charges is the Contract of Sale (Exhibit A) in these proceedings.  The defence exhibit 1 which is an agreement by Simon Nigi and Nigel Nigi to sell the Bomana property to Deslyn and her husband is not in dispute.  It was agreed that Deslyn and her husband would buy their house.  Deslyn and her husband took out a BSP loan of K130,000 to purchase the property.  Out of the total K130,000.00, an amount of K124,667.93 was deposited into Nigel’s Kundu Account with BSP.

49.	The allegation was that Deslyn Nigi and her husband Simon Manikumbu had conspired to advise their lawyer to prepare a Contract of Sale which was duly done.  It was further alleged that they misled, coerced, and tricked Nigel Nigi to signing the Contract of Sale and the Instruments of Transfer on 5 July 2013, in the presence of their lawyer, Eunice Sipison of Rageau, Manua and Kikira  Lawyers and that when this was done, Nigel Nigi was not represented by a lawyer.

50.	The defence argument on the charge  is that Nigel Nigi agreed to sell his property and as such the prospective buyers engaged a lawyer to prepare a Contract of Sale, which is a normal conveyancing practice.  This is what was done.  Nigel Nigi was not advised to secure a lawyer to help him with this conveyancing process.  As a result, the lawyer for Deslyn and her husband simply placed the Contract of Sale and the Transfer Instruments in front of Nigel to sign and Nigel signed.

51.	In those circumstances I cannot see any false pretence, wilful false promise, any part false pretence and any part wilful false promise by Deslyn Nigi and her husband.  I cannot see any intention to defraud by Deslyn Nigi and her husband.  Those are material elements on a charge of False Pretence.  They have not been met.  I find on the evidence that Nigel Nigi did agree to sell the subject property to Deslyn Nigi and her husband but I find that he later changed his mind to sell the property to them for reasons.

52.	I find that the State has failed to prove each of the elements of the charge beyond reasonable doubt the guilt of the accused on a charge of false pretence.  Accordiingly, I acquit her of that charge on the indictment.

SUBJECT OF MISAPPROPRIATION CHARGE

53.	The subject of the misappropriation charge flows from the following facts contained in his Bank statement (Exhibit F).

a)	On 11 October 2013, Deslyn Nigi and her husband deposited into Nigel Nigi’s BSP Kundu Account No. 1001702616, K123,667.93.  This money was obtained by them from the BSP as a loan to purchase Nigel Nigi’s house.  The account balance after this deposit was K125,131.94.

b)	This transaction was done when Nigel Nigi was still in  PNG and awaiting travel to New Zealand.

c)	Between 11 October  2013 to 31 October 2013, much of that money had been used  and Nigel Nigi’s bank account balance dropped to K4,996.09 and on 1 November 2013, Nigel Nigi left PNG for New Zealand.

d)	By 22nd November 2013, his bank account balance further dropped to K19.94.

e)	In that period on 18 October 2013, Deslyn Nigi opened a Plus Saver Account No. 1012798052, in the name of Nigel Nigi.  Nigel Nigi was still in PNG.  Nigel said he was not aware of Deslyn opening this account for him.  Deslyn Nigi was the sole signatory to this account.

f)	On 27 November 2013, K286,091.50 was deposited into Nigel Nigi’s BSP Kundu Account.

g)	On 29 November 2013, K283,000.00 was withdrawn or transferred from Nigel Nigi’s BSP Kundu Account No. 1001702616 by Deslyn Nigi and deposited into Nigel Nigi’s BSP Plus Saver Account, for which Deslyn Nigi was the sole signatory.  This evidence is found in the Bank Statement  on the Plus Saver Account No. 1012798052.  Exhibit E.

h)	From 11 December 2013, Deslyn Nigi withdrew  various amounts of money for a housing project which Nigel Nigi said he was not aware of and which he did not authorize which totaled K99,973.00.

i)	It is for the K99,973 that she is charged with.  Nigel Nigi alleged that Deslyn Nigi dishonestly applied that  K99,973.00 for her own use and to the use of others property belonging to him.

DEFENCE TO THE CHARGE OF MISAPPROPRIATION

54.	Deslyn said she did  what she did, that is taking out the K99,973.00 because Nigel had changed his mind about going ahead with the sale of his house to them.  By then she and her husband had already paid K124,667.93 to Nigel Nigi for the house and that the K124,667.93 had been used by Nigel Nigi already.  Deslyn said she could not return the money to the bank as Nigel had by then used it.  For fear of losing the house, they did not inform the bank of the fact that  Nigel had changed his mind to go ahead with the sale of his house to  her and her husband.  They too decided that they would go ahead  with the loan and repay the loan until it was fully paid.  In that regard, she said that is why she and her family  continue to live on the subject property and further that she and her husband decided to build a house in Taurama.  She said for that reason she took out the K99,973.00 from Nigel’s Plus Saver Account.  She told the Court that she and her family will give the property back to Nigel after they complete the loan repayment.

55.	Deslyn did not raise the legal defence of honest  claim of right under s. 23 (2) of the Criminal Code Act.  Case precedents such as Tiden v Tokavanamur – Topaparik (1967 – 68) PNGLR 231 and Public Prosecutor Request No. 4  of 1974 (1975) PNGLR 365 stand for the proposition  that a person has a claim of right if he or she honestly believes that what he or she is doing is lawful even though it may be unfounded.  Deslyn and her counsel did not raise it.  Deslyn may have thought that she had an honest claim of right if she honestly believed she was entitled to do what she was doing based on that honest claim of right.  She may have thought, or believed that she had acquired a right to the funds which belonged to Nigel.

56.	I have considered those possible defences but I am unable to give the benefit of that defence to the accused, simply because she was more like a trustee to the account of Nigel and she had easy access to his bank account to get the money.  She did not consider for one moment to get Nigel’s consent. 

57.	In her defence, Deslyn said she informed Nigel of what she was doing and that Nigel was aware of it.  Nigel denied this and said he never gave his consent or authority to Deslyn to draw monies from his Plus Saver Account.  He said he did not know what was happening in that account as Deslyn was the sole signatory. 

58.	On one hand, I sympathize with Deslyn and her husband for their predicament because they say Nigel  put them in this situation. Inferentially,  Nigel, on the other hand is saying that Deslyn  and her husband caused him to  be deported from New Zealand and blames her for not completing his pilot training.  Nigel also blames Deslyn and her husband for misleading him into signing the Contract of Sale of the property.  Both sides have a point which are reasonable and logical in my view.

59.	However, notwithstanding those factors, the question is:  Did the situation entitle Deslyn to draw money out from Nigel’s Plus Saver Account for her own housing project, without the consent of Nigel Nigi?  In my opinion, the outcome of this matter hinges on this pertinent question.

60.	Deslyn opened the Plus Saver Bank Account for Nigel.  She did not get Nigel’s consent to open that account with the BSP but opened it anyway to prevent Nigel from excessive use of his money on things not relevant  to his pilot training.

61.	Deslyn had good intention to open this Plus Saver Account in the first place for the benefit of Nigel and to help him control his spendings on the savings, but I think she lost her focus on whose bank account she was drawing the money out of.

WAS THE CONDUCT OF THE ACCUSED DISHONEST?

62.	All the good intentions of Deslyn Nigi came to zero when she started taking out money from his account to fund her own housing project.  A long line of case precedents come into play for her to answer the questions of whether Deslyn’s conduct was honest or dishonest.  Dishonesty only relates to the state of mind of the accused  before, during or after the offence has been committed.  Whether a person’s conduct was dishonest requires both an objective test and a subjective test.  See State v Gabriel Ramoi (1993) PNGLR 390, the State v Francis Launadawa (1994) PNGLR 291, Brian Kindi Lawi v The State (1987) PNGLR 183, State v Jimmy Liriope (1990) N916.

63.	Deslyn was drawing money from Nigel’s Plus Saver BSP account.  She was taking our Nigel’s money for her own benefit.  The benefit being building a house for herself in Taurama.  Nigel did not  know this.  Had Nigel been informed and he given his consent, Deslyn would not be in this Court today.  I accept Nigel’s evidence that he did not know and never gave his consent to Deslyn to draw money from his account.  The fact that Nigel never gave his consent to Deslyn to draw the money is sufficient for me to conclude that she dishonestly drew money out of Nigel’s account and misapplied it for the benefit of herself and others.

64.	Nigel Nigi in his evidence said he was not aware of a housing project in Taurama.  Deslyn said Nigel was aware as she informed him of it.  The conduct of Nigel in this whole saga has been admirable.  I consider him to be a truthful witness.  Deslyn’s conduct has been good as well except for the drawing of money from Nigel’s account.  I accept Nigel’s evidence that he did not consent to the opening of the Plus Saver BSP Account.  I accept Nigel’s evidence that he did not fully understand the Terms of the Contract of Sale. The RMKA lawyer represented Deslyn and her husband.  Nigel had no lawyer.  The Contract of Sale of the subject property was invalid for that reason taking into account the provisions of Section 4 of the Fairness of Transactions Act.  The RMK lawyer had a conflict of interest if she was lawyer for the vendor as well.   Section 4 of the Fairness of Transactions Act says:

“4.   FAIRNESS.
(1) For the purposes of this Act, the concept of fairness relates to the principle of the just and equitable distribution to and among parties to a transaction of the rights, privileges, advantages, benefits and duties, obligations and disadvantages of the transaction in proportion and relative to a party’s standing in or contribution to the transaction, and according to business principles and practices appertaining to the particular transaction in question and the provisions of this Act shall be read liberally and applied accordingly.
(2) In accordance with the general tenor and purposes of this Act as stated in Section 1 and Subsection (1) of this section, but without departing drastically from the rule of law of right to contract, in determining the fairness or otherwise of a transaction, the circumstances of the parties existing before, at and after the entering into of the transaction shall be taken into account.”
65.	It is not disputed that Nigel Nigi was not represented by a lawyer and that the lawyer for Deslyn Nigi and her husband explained to Nigel Nigi what he was about to sign.  To me, with respect, this arrangement  was not fair.  Nigel Nigi was entitled to have an independent  lawyer of his choice to advise him on the sale  if he changed his mind to go ahead with the sale.  This action to have Nigel Nigi sign the Contract of Sale without a lawyer of his choice went against s. 4 of Fairness to Transactions Act 1993.

66.	Both the State and the Defence counsel were not awake to bring to the Court’s  attention the Fairness of Transactions Act 1993.  Both counsel need to learn to look outside the box. If they did they would have concluded that the Contract of Sale was not valid in those circumstances.

WAS DESLYN ENTITLED TO DRAW MONEY OUT FROM NIGEL NIGI’S BANK ACCOUNT FOR HER OWN HOUSING PROJECT

67.	Deslyn was the sole signatory to Nigel’s Plus Saver Account.  She opened the account for what appears to be a good reason, for Nigel’s benefit.  As things turned out, she and her husband were paying off a loan for something they were not going to get.

68.	In my opinion, she had a point, but she and her family were already living in the house and she and her husband were and are of the view that they will continue living there until they discharge the mortgage.  That part in my view could  be negotiated with Nigel  and his family and may be or could be acceptable to Nigel and his family.

69.	What is not acceptable is that she used Nigel’s money to build for herself and family a house at Taurama without Nigel’s consent.   She was drawing out money from Nigel’s  Plus Saver Account to fund a housing project at Taurama.  Altogether she took out K99,983.00 from his account without Nigel’s knowledge and consent.  The conduct of Deslyn was and is fraudulent and dishonest in my view.  I say this because while Deslyn had a good point, she set out deliberately to a bank account which was and is not hers and drew money out from that bank account to fund her own house project, without the authority and consent of the owner of the bank account and the owner of the money.  She took the money and used it for her own benefit and for the benefit of others.  The end result is that I find Deslyn Nigi guilty beyond reasonable doubt of dishonestly applying K99,973.00 to her own use and to the use of others, money belonging to Nigel Nigi.  All the elements of the charge of misappropriation are proved beyond reasonable doubt.

70.	Accordingly, I find Deslyn Nigi guilty as charged beyond reasonable doubt.

_______________________________________________________________
Public Prosecutor: Lawyer for the State		
Public Solicitor: Lawyer for the Accused