Evertz v The State [1979] PGSC 2; SC154 (2 July 1979)

Unreported Supreme Court Decisions

SC154

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
MATHIAS PETER JOSEPH EVERTZ
V
THE STATE OF PAPUA NEW GUINEA S.C.A. 20/77

Waigani

Prentice CJ Kearney Pritchard JJ
2 July 1979

CRIMINAL LAW - Appeal - Notice of appeal lodged by solicitors prior to availability of transcript reserving right to add grounds - Leave to appeal on questions of fact not sought - appellant subsequently conducting appeal in person - in exceptional cases only leave to appeal may be granted

CRIMINAL LAW - Appeal - Inadequacy of transcript - in absence of material irregularity no question of mistrial is involved.

CRIMINAL LAW - Appeal - Questions of fact - Unless fundamental misconception by the trial judge is clear upon the proceedings at the trial findings of fact and findings as to credibility will not be disturbed.

Order of the Court

Appellant granted leave to appeal. Appeal dismissed. Convictions and sentences of the trial judge confirmed.

PRENTICE CJ: Appellant was convicted in the National Court at Lae on 15th November 1977 on 3 counts of stealing money as a servant of New Guinea Gold Fields Limited, totalling K8807. He was thereon sentenced to imprisonment of 4 years. The appeal brought was asserted to lie without leave, though certain of the stated grounds may well have required leave. The last “ground of appeal” was stated to be “such other grounds of appeal as may be available to the accused when a transcript of the evidence becomes available; at the time of lodging this appeal the learned trial Judge’s reasons for decision were not available to the appellant”. The appellant had been represented throughout his trial by experienced counsel from Sydney and his notice of appeal was drawn by a senior firm of solicitors in Port Moresby.

Shortly thereafter a transcript of evidence was made available to the appellant. Since then no further grounds of appeal were sought to be stated. The appeal having lain in the list unduly long, efforts were made by this Court to bring it on for hearing though appeal books had not been filed and the formalities of the Rules of the Supreme Court had not been complied with. At the sittings of this Court in May appellant claimed that he had been unfairly treated in that legal aid had been refused him (his solicitors having ceased to act for him after filing the notice of appeal - a question of future costs being said to be involved).) This court then directed one of the Judges of the National Court to enquire as to whether the Public Solicitor should be ordered under s.177(2)(b) the Constitution to provide legal aid to the appellant. On 8 June 1979 Wilson J. in a considered judgment, in which he indicated that it had been established that experienced lawyers in the Public Solicitor’s Office had spent much time and effort on the case, but that nevertheless a decision had been made advisedly to refuse further aid, held that no case had been made out for the interposition of this Court between the appellant and the Public Solicitor refusing further aid. It was directed that the appeal be brought on.

On the 16th May, the appellant had delivered to the Court office a handwritten submission - which reduced to typing of 6 pages.

This was not transmitted to the Public Prosecutor, it seems. The trial judge thereupon, under Rule 33(d) Supreme Court (Appeal) Rules, made a brief report on the matters raised therein. Subsequently a sheaf of handwritten further submissions dated 19 June 1979 was sent to the Court (some 9 pages plus annexures), a pay roll analysis (23 pages) and an analysis of Judge’s notes (some 35 pages). None of these latter were available to the State Prosecutor, and the Court has not had the facilities to have them re-produced in time for the hearing. At the hearing every facility was given to the appellant to propound verbally his submissions and to refer us to his written materials. His address to the Court occupied the whole morning and into the afternoon.

The appellant in fact did not pursue any of his stated grounds of appeal. His submissions related to allegations of mistrial in that a proper transcript was not kept by the trial judge, a missing file had not been produced at the trial, and certain papers alleged to have been subpoenaed had not been produced either. Subsidiary arguments were based on documents said to have recently come to light which would tend to show innocence. These papers were not available, and were not in any coherent way identified. The ground for the reception of new evidence had not been established.

The matters which were in fact argued had not been particularised and were not properly before the Court. In the course of his submissions, the appellant launched a personal attack upon his Honour the trial Judge and his fitness to conduct the trial - some of his allegations were said to be based on something said to the appellant by a fellow expatriate who is in Bomana Corrective Institution and whose conviction is also the subject of appeal.

In view of the serious nature of the allegations made, I believe they should be dealt with, though strictly the Court should not entertain them. However, I believe the Court should not regard this as in any way a precedent for the future - appeal points must be properly identified and taken in time.

In the conduct of trials in P.N.G., the judges of the National Court have to make do with the tools and materials given them within the financial capacities of the Government budget and that of the Justice Department in particular. This results in judges of the Court having to do their best to produce a record in longhand of the evidence taken and submissions made by counsel. Their own decisions have to be reduced to writing. This is a most exhausting process in a day of long hours. The work of studying the long-hand notes of evidence in holograph can be an equally tiring procedure, which engages the judge’s attention after court hours. This procedure is by no means peculiar to P.N.G. It is probably true to say that in the vast majority of the courts of the world, trials are run on the basis of such notes as can be kept. Even among the more affluent countries, tape-recordings and shorthand records are often unavailable below the most senior courts. The judges, in these circumstances, do the best they can in the interests of both parties, to make as complete a note of the evidence as possible. I have read all the notes of evidence taken in this case, and from the nature and detail of it, and the length of it (some 89 pages), I form the impression that the Trial Judge recorded the evidence most creditably. It was conceded by the appellant on the appeal that there is no specific answer gone unrecorded which would go to a decision against him. Even were such a point open to be taken as a ground of appeal, I am satisfied that it would not be warranted on the actual notes.

As to the alleged unfitness of his Honour to conduct a trial at all, and this one in particular, one should observe that it is well-known that he suffers from diabetes, which occasionally calls for a short adjournment while a balance of blood sugar can be re-established. That such an adjournment might have occurred in another trial, or even if it had in the one under consideration is irrelevant to a consideration of whether his Honour was behaving with propriety and the necessary abilities. As to the other submissions on the question of judicial fitness, it is sufficient I think to point to the lengthy, careful and reasoned judgments delivered by his Honour on the no case to answer submission and at the end of the evidence by the appellant. They indicate that there was no room for complaint.

That the appellant was well and capably represented at the trial by experienced counsel has been adverted to. Should counsel have seen any significance in the alleged failure or inability to produce documents on subpoena, or to produce an alleged missing file; avenues were open to him. No point was made by counsel; and indeed he seems to have accepted an interposition by the prosecutor that all relevant material as to the file in question had been forthcoming.

That is really sufficient to indicate in my opinion that the appeal should be decided adversely to the appellant. However I think I should add that the paychecks by the witness Egerton were never really challenged, and that it was clearly established that pay envelopes had been made out in favour of some 40 non-existent employees on requisition by the appellant. The judge accepted and I think there was ample evidence to support findings beyond reasonable doubt, that:

(a) Bolt and Egerton should be accepted as reliable witnesses when speaking of appellant’s indignation at the news of a paycheck,

(b) documents in Bolt’s and Egerton’s names were forged by the appellant,

(c) other documents were ante-dated by the appellant in the attempt to throw investigators off the scent,

(d) the appellant’s story of recovering documents in Australia from an unknown source after leaving P.N.G. was false and should be rejected, and inferentially

(e) the appellant should be disbelieved where his evidence conflicted with others.

I would add that for myself, I would also have regarded the extraction of documents from the filing cabinet by appellant after the paycheck had been made, the breaking into the mine office in which he was seen to force the door, the unexplained taking of appellant’s cardigan from inside the office at that time, and the huge amounts of monies transferred from P.N.G. to Australia by the appellant, and finally the pattern of employees being removed from the payroll when appellant went on leave and being subsequently “re-engaged” when he returned, were all features of circumstantial evidence that would work tellingly against the appellant - though apparently not thought necessary by his Honour to be brought into the scales.

I would dismiss the appeal.

KEARNEY J: In August 1976 the appellant was the manager of a mining enterprise, one of several activities conducted by a company at Wau; he had been so engaged for some time. One of his duties was to see that his workmen were duly paid; there was a large workforce at the mine.

The appellant paid his men by taking in pay requisitions or time sheets to the paymaster fortnightly on Mondays, collecting pay envelopes from the paymaster on the morning of the pay-day (Friday), and handing them out to the men at the mine that afternoon.

One payday, Friday 20th August 1976, the company’s chief accountant Mr. Egerton decided to do a spot-check on the mine payroll, by collecting the pay envelopes himself from the paymaster, personally attending at the mine, calling up each man, and paying him. Accordingly, when the appellant came to the pay office that morning to collect the pay envelopes, the paymaster refused to hand them over to him. According to both the general manager Mr. Bolt, and Mr. Egerton, this led to a row with the appellant in the general manager’s office about mid-day, the appellant claiming that the proposed paycheck amounted to a slur on his professional integrity, and that, if it proceeded, he would resign. The paycheck was carried out, with the result that 40 envelopes were unclaimed at the mine, and remained unclaimed thereafter.

Investigations commenced and led in due course to the appellant being indicted upon charges of stealing money from his employer on each of the 3 preceding paydays in July and August. It was alleged that included in his pay requisitions were the names of persons not in fact employed at the mine. That is, that he was running a “ghost” labour line and was pocketing the “ghosts’” pay. He was convicted, and sentenced to 4 years imprisonment upon each count, the sentences to be served concurrently. From these convictions he now appeals. He has conducted his own appeal, most ably.

It is unnecessary for me to deal with the course of proceedings leading to the hearing of the appeal, as the Chief Justice has set them out in full.

The appellant contended that the absence of a verbatim transcript in itself involved a mistrial. There is no substance in that. No material irregularity was involved in the notes of evidence taken by the learned trial judge - the appellant admitted that he was not suggesting that some specific evidence had been given, and not recorded, which was material to the verdict against him. There is no requirement in our law for a shorthand note of the proceedings at trial, to enable a transcript to be prepared; In England where there is statutory provision, it has been held that the absence of a shorthand note and transcript does not make the trial improper - see R. -v- ElliottSC154.html#_edn23" title="">[xxiii]¹.

As to other matters raised by the appellant at the hearing of his appeal, it suffices to say that I have had the benefit of reading the opinion of the Chief Justice thereon, and agree, with respect, with everything His Honour says.

The appellant contends in his written submissions that he is innocent. He refers to many matters for the purpose of showing that the verdict against him is unsafe or unsatisfactory under all the circumstances of the case, on the basis that the evidence when properly assessed is not sufficient to establish proof of his guilt beyond reasonable doubt. He raised this ground in substance in his notice of appeal where he contended that the judgment was against the weight of evidence. It is a ground which involves questions of fact alone and therefore he requires leave to appeal. I consider that the notice of appeal should be regarded as a notice of application for leave, for this purpose; and that such leave should be given, and the ground now considered.

The evidence against the appellant was circumstantial in nature. I have already outlined the procedure for payment of the men and what happened on the payday 20th August. The names of the permanent workmen at the mine, and a record of the hours they worked, were kept in a time book by a clerk at the mine, who physically checked on attendance. That time book has disappeared. The clerk testified that he last saw it on the day after or the day before Mr. Egerton’s paycheck, at the mine office; and that the appellant went in to the mine office on Sunday 22nd August and took away all the books in the office. It is clear that the appellant forced the lock to do so.

The requisitions for pay which the appellant took in to the pay office were kept by the paymaster, who testified that on the afternoon of the paycheck, on returning from the mine, he found that the requisitions for that payday were missing from his filing cabinet. Another witness who worked in that office, testified that she saw the appellant, earlier that afternoon, remove some documents from the paymaster’s filing cabinet.

The appellant produced a number of internal company documents which, if genuine, went to support his case; it was established beyond any doubt that they were false. The appellant said that he had received them through the mail in January 1977 from some person unknown to him.

The appellant testified that the number of workmen at the mine was being reduced about this time and that frequently men would be paid off on a non-payday through a Native Labour Expenses Account. He said he had dismissed 20 or 21 casuals on 18th August, and 19 permanent men the week before. The accounting procedures of the company were admittedly sloppily administered and recorded and he said this could have allowed someone else to have manipulated the N.L.E. Account. He said he was not resentful about the paycheck during his mid-day meeting with Mr. Bolt and Mr. Egerton; and that that discussion had concentrated on the lack of costings available to the mine. He said he had taken away his text books from the mine office on Sunday, when Mr. Bolt had instructed him to leave the mine area. On the Friday afternoon, he said he did not remove any records from the pay office, but only blank time sheets. He said that his money transfers arose from certain business dealings, and the sum of K12,700 was money he had remitted for one Jim Cook; it was not his own money at all.

In his reasons for decision the learned trial judge made certain findings.

He totally rejected the appellant’s account that he had received the false documents through the post; and found that the appellant had “laid down a deceitful smoke-screen”, by preparing the false documents. His Honour concluded:

“It is crystal clear that the accused cooked up all this elaborate documentation when his deception was unmasked by the paycheck.....”

His Honour found it unnecessary to deal with the other items of the circumstantial evidence, which he mentioned, and found the appellant guilty.

It is for this Court to reach its own conclusion as to whether the verdict was unsafe or unsatisfactory in all the circumstances, and for that purpose I have examined the whole of the evidence carefully and considered the lengthy written submissions of the appellant.

It is inherent in the nature of the trial process that this Court must place great weight upon the views of the trial judge on issues which turn upon the credibility of the witnesses who testified before him, unless the appellant shows that the rejection of his own testimony on those issues flows from some fundamental misconception of the evidence as a whole, or from a failure to take it all properly into account. That is clearly not the case here; His Honour dealt correctly and fairly with the evidence.

Giving the views of the trial judge great weight on those issues, and weighing the rest of the circumstantial evidence, I do not think the verdict of guilty was unsafe or unsatisfactory. To my mind the guilt of the appellant was proved beyond reasonable doubt, and his appeal should be dismissed.

I should add, since the matter was raised by the appellant, that I consider that the sentences imposed were proper.

PRITCHARD J: This appellant was convicted in the National Court in Lae of three counts of stealing as a servant under s. 384 of the Criminal Code. The appellant at the relevant times was employed as a Mine Manager by New Guinea Gold Fields Limited (hereinafter called “the Company”) and the three charges related to K3,490.09 allegedly stolen on 6th August, 1976, K2,965.68 on 23rd July, 1976 and K2,351.62 on 9th July, 1976. The three dates were fortnightly company paydays and the charges arose from the discovery on pay-day, 20th August, 1976 that 40 pay packets by employees allegedly employed at the mine managed by the appellant were unclaimed both on that day and subsequently. In other words the allegation against the appellant was that they were non-existent or “ghost” employees and that the pay issued in respect of them on the three previous pay fortnights had been stolen by the appellant.

I had prepared draft reasons for this judgment while I was away from Port Moresby this month. On my return I have had the advantage of reading in draft the judgments of the Chief Justice and my brother Kearney and I can only say that they express far more adequately than my original draft the reasons why I believe this appeal should be dismissed.

I would add however some short comments. Firstly, it is abundantly clear that at the payroll check on 20th August forty paypackets were unclaimed. None of the witnesses who were present there were cross-examined at the trial to suggest that there were any fewer than this despite the fact that the appellant has made suggestions before us that the figure was less. The appellant at the trial claimed that the missing men had been dismissed by him prior to the day of the pay check, had already been paid off and this is why their pay packets were surplus on that day. When the witness Bolt spoke to him about the proposed pay check the appellant made no mention of these dismissals. When the witness Egerton spoke to him about the check again he made no mention of them. On the following Monday, Egerton, Mr. Hallahan, the A.D.C. from Wau, Dum Sam, the Paymaster, a David Paterson and the appellant went to the mine and again none of the 40 men on being called came forward. Having learnt of the suggestion of irregularities over the weekend and having seen exactly what happened on the second check on the Monday the appellant again failed to say to any one person present that the reason for the excess pay packets was that the men concerned had been dismissed. Not only did he not say this but not one witness present was cross-examined to suggest that he had. This to me is probably the most damning evidence against this appellant. The fact that almost one third of his labour force did not claim their wage packets, the fact that according to him he had only recently dismissed them and the fact that he made no mention of it when faced fairly and squarely with the factual situation and allegations of ghosting, can lead to no other conclusion that they had not been dismissed, they did not exist at all, and the documents purporting to dismiss them were brought into existence after that date to try and swing blame onto company inefficiency.

In fact this whole appeal was conducted on a campaign of criticism of the lack of integrity of the company witnesses, allegations of dishonesty in the operation of the company’s affairs and the appellant even resorted to questioning the state of health of the learned trial judge. All these matters of course deliberately avoid the real issues and on those the guilt of this appellant was proved beyond reasonable doubt in a thoroughly prepared and presented prosecution.

The one valid criticism made by the appellant was that of the appalling deficiencies in the company’s financial system. He is right, but it is of course in this type of situation that a dishonest man can take personal advantage which clearly this appellant did, trusting to use the deficiencies to cover his own dishonest tracks. He failed.

He was justly convicted of theft. He was given an adequate sentence of four years imprisonment. Had he been given a lighter sentence I would have given serious consideration to increasing it.

I would therefore grant leave to the appellant to appeal and as indicated above, dismiss the appeal and confirm the convictions and sentences imposed by the trial judge.

Appellant in Person

Solicitor for the Respondent: K.B. Egan, Public Prosecutor

Counsel: G. Poole

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