Mara v The State [1986] PGSC 1; SC320 (31 October 1986)

Unreported Supreme Court Decisions

SC320

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
S.C. APPEAL NO.19 OF 1985
BETWEEN: NAMBUGA MARA
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Kidu CJ Amet Cory JJ
31 July 1986
31 October 1986

Cases Cited

Bemax v Austin Motor Co Ltd [1955] AC 370

Busina Tabe v The State [1983] PNGLR 10

James Neap v Independent State (Unreported Supreme of Papua New Guinea Court judgment No. SC 228 dated 3rd May 1982)

Karo Gamoga v The State [1981] PNGLR 443

Ladd v Marshall [1954] EWCA Civ 1; [1954] 3 AER 745

Raphael Warakau v The State (Unreported Supreme Court judgment No. SC 184 dated 3rd November 1980

South Pacific Post Pty Ltd [1984] PNGLR 38 v Ikenna Nwokolo

The Government of Papua New Guinea [1977] PNGLR 386 and Davis v Baker

Warren v Coombes [1979] 53 ALJR

Counsel

Mr J Gawi, for the appellant

Mr M Unagui, for the respondent

Cur. Adv. Vult.

31 October 1986

KIDU CJ: This is an appeal against both conviction and sentence. The appellant, former Premier of the Western Highlands Province, was indicted with one count of dishonestly applying to his own use the sum of K5100, the property of the Western Highlands Provincial Government. On 17 April 1985 he was convicted of misappropriating the lesser sum of K4100 and sentenced to three years imprisonment with hard labour. The trial judge ordered that the sentence would be reduced to two years if the appellant paid back the K4100 to the Western Highlands Provincial Government. The money was indeed repaid in 1985.

In the Notice of Appeal the grounds of appeal stated are as follows:

1. That the conviction was unsafe and unsatisfactory in the circumstances.

2. That the sentence was and is manifestly excessive in the circumstances.

As a preliminary matter an application to adduce fresh evidence was made by counsel for the appellant but the application was unsuccessful as the evidence sought to be adduced had been available at the time of the trial.

At the time of the offence the appellant was Premier of Western Highlands and amount of money in the indictment was made up of three different amounts, monies from amounts the appellant was supposed to have paid to people who had done work on three road projects. I quote from the learned trial judge’s judgment:

“The K5100 is alleged to have been made up from three particular amounts to be applied to three particular projects.

1. K1100 out of K1500 to be paid for the Kunya-Kuta road project in August 1983.

2. K2000 for the Kuta Koge Nui Bridge project in December 1983.

3. K2000 out of the K4000 for the Marabug Road project in March 1984.”

There was no denial by the appellant that he received these monies. In respect of the K1500 for the Kunya-Kuta Road project his defence was the two different groups turned up at his office for payment on two different projects and as he had the money for one project (the K1500 for the Kunya-Kuta project done by William Mong’s group) he gave K1000 to William Mong’s group and K500 to a group led by Tibuga or Tibukaga which had done the project on the Yumbilga-Murk Road. As to the K2000 for the Kuta Koge Nui Bridge project he said the money was paid to the leader of the group, a Joseph Korop. And as to the K4000 for the Marabug Road project, K2000 of it was shared by those who had done the work, K1000 was paid to Paul Pulupa as “bel-kol” money to relatives of a deceased call Ulga (or Wetga?) and the other K1000 was also paid as “bel-kol” money to relatives of another deceased, Guan. He said these “bel-kol” payments were decided by the leaders (including himself).

KUNYA-KUTA ROAD PROJECT

The K1500 for the project was included in payment voucher No.769 dated 16 August 1983 (Exh.“C”). Monies for two other projects were included in this voucher - K1000 for a project on the Togoba aerodrome and K640 for a project on the Yumbilga-Murk Road, a project done by Tibukaga’s group. The money for the three projects (K3140) was in one cheque which was cashed by a provincial government officer. On the voucher there is a notation which says that the monies (for the 3 projects) were to be picked up by the appellant. The voucher also clearly shows that on 17 August 1983 the appellant signed on it and this was witnessed and an arrow which goes from the K1500 for the Kunya-Kuta Road project to the appellant’s signature seems to indicate that on the date the appellant picked up the K1500 for the Kunya-Kuta Road project only.

Mr Dorflinger, the then Provincial Government Engineer said in his evidence as follows:

“This payment voucher (i.e. voucher No.769) is for that particular project. There are 3 projects which were paid on the same time. The third is the one that you are referring to which is Kunya-Kuta Road. Yes the bottom project is the one that is being referred to. The money was picked up by the Premier, where he signed and was witnessed by one of the office staff when it was picked up.”

According to the voucher and the evidence of Dorflinger, the appellant on 17 August 1983 picked up only the K1500 for Kunya-Kuta Road project and not the K1000 for the Togoba airstrip project or the K640 for the Yumbilga-Murk Road project.

The trial judge, in his judgment, made an assumption without any evidentiary basis in my opinion, that the appellant picked up the three lots of money. This error very clearly led him to doubt the veracity of the appellant’s testimony. His Honour said in his judgment:

“From the evidence William Mong and his people did the work for the Kunya-Kuta Road and Tibukaga and his people did the work in the Yumbilga-Murk Road, see particularly the Defence Evidence of Tibukaga. Yet the evidence also clearly shows that the K1500 for the Kunya-Kuta Road was not given to William Mong and his people - if any, only part of it was given to William Mong and his people - according to William Mong and Kopra Para they received only K400. Tibukaga states the accused said he would give K500 to himself and K1000 to William Mong and his people although he never really knew how much was in the pile of money given to William Mong. The two security officers refer to the accused giving K500 to Tibukaga and K1000 to Mong, however they were standing by the door in the room and only say what they heard the accused say. They could not know what was in the pile of money given out. Also their evidence is confused in that they also say they did not hear. Of course how they could remember after one and a half years the details of one visit to the Premier out of the many he would receive I do not know but have my doubts. The accused himself said he gave K1000 to Mong, however his whole story is not supported by his own witnesses. He states that he told them that he had only received money for one road yet he had people from two projects in front of him, Mong and his people for Kunya-Kuta Road and Tibukaga for Yumbilga-Murk Road. The defence witness Tibukaga clears up any possible confusion over which road is which. How the accused could say that when he had just signed a voucher for K640 for one road and K1500 for the other, I don’t understand. He then refers to the two groups arguing over their respective work. Yet none of his witnesses support these parts of the story. Neither the security guards nor Tibukaga refer to any argument - it all seemed to be straight forward.

This all casts doubts on the credibility of the accused as a witness.

It is quite clear that Tibukaga should have got K640 yet he only got K500. Mong and his people should have got K1500 but according to them only got K400 or according to the accused got K1000. Tibukaga never apparently knew he was supposed to get K640 so did not complain and therefore this payment was never investigated by the police.

In the circumstances it is quite clear William Mong’s people were not given what they were supposed to receive I find the accused so discredited here that I cannot accept his evidence so I am left with the clear misappropriation of the balance from the K1000 after allowing for what William Mong said he received. I am satisfied Tibukaga money’s did not come from the K1500 although it was made to appear as it it did. The accused tried to say he only got the K1500 on the payment voucher for No.769. But who dealt with the K640 for the Yumbilga-Murk Road which his own witness Tibukaga was responsible for. It does not make sense the accused’s way. The accused was the Premier and had been for six years and prior to that was apparently involved with the Melpa Area Authority. He is an experienced leader and must be well acquainted with Government procedures. He knew how to plan and organise Government activities and budgeting and he must be deemed to understand Payment Vouchers and the raising of moneys for payments out and the procedures.

As I have already said his statements of this situation lack credibility even with reference to his own witnesses. I see no reason to doubt the evidence of William Mong and Kopra Para even if as pointed out the complaint may not have been made until a political inopportune time.”

Apart from the error in making the assumption that the appellant picked up the other monies when he picked up the K1500 there are other errors in His Honour’s judgment and these also casted in his mind doubts on the appellant’s evidence. He said that the evidence of the two security officers - they gave evidence for the appellant - was “... confused in that they also say they did not hear.” The evidence of these two officers - Joseph Titip and John Yamba - is quite straight-forward. They were inside the appellant’s office when he announced he was giving K1000 to Mong and K500 to Tibukaga. When the trial judge said their evidence was confused I think he was referring to the following evidence of Titip (during cross-examination):

“Q. Before the money was given out did you hear what the Premier said to the visitors?

A. I didn’t hear anything. I won’t tell lies.

Ct. If you did not hear anything how did you know certain amounts of money were given out?

A. He mentioned the road and he gave the money.

Q. Did you see cash given out?

A. I saw it.”

This evidence re-iterated what had been said in evidence-in-chief. I cannot see how it is confused. As to evidence of John Yamba, there is nothing confusing about it. He told a straight story and that is that the appellant said he was going to give K1000 to Mong and K500 to Tibukaga.

His Honour also said that the appellant’s “whole story is not supported even by his own witnesses.” Tibukaga, Titip and Yamba supported the appellant’s story. The learned trial judge also says:

“He (i.e. the appellant) states that he told then that he had only received money for one road yet he had people from two projects in front of him ...”

The assumption here seems to be that the appellant was responsible for the two groups - Mong’s and Tibukaga’s - being in his office. This is of course incorrect. Only Mong’s group went to see the appellant because he called them. Tibukaga’s group was not called by him. So if the appellant only had the K1500 for one project and two groups turned up how can that be used to discredit his evidence that he only had money for one project with him when the two groups turned up at his office?

These matters clearly undermine the learned trial judge’s finding in this aspect of the alleged offence and the finding cannot be allowed to stand as it is unsafe and unsatisfactory.

KUTA KOGE NUI BRIDGE PROJECT

The only State witness in respect of this part of the case was Joseph Korop, a leader of the group which did the project. He denied receiving the K2000 for the job from the appellant whereas the latter’s evidence hears that he handed over the money to him.

In his endeavours to decide which witness to believe the trial judge said the following:

“The accused states he gave the money to the witness when he was by himself. Who should I believe one or the other and whichever I believe the other is lying. If Joseph Korop is lying he would soon be found out as his people would be able to say he got the money and shared it out. However, the accused’s behaviour in handing it out just to the witness in his office with no witness is rather unusual. The normal procedure then was to call the people together and make political capital out of the occasion and also to ensure everyone saw the money being handed out so there could be no complaints.

The accused’s story just does not make sense so I must believe the witness Joseph Korop.

Also why did not the accused mention how and when he paid the money when the police investigation started - this supports my not believing the accused. It could have been checked out when things were still fresh in his mind.”

If the appellant gave the K2000 to Korop when the latter was by himself I see nothing wrong in that. There is no evidence that “The normal procedure then was to call the people together and make political capital out of the occasion.” Whose normal procedure was the learned trial judge referring to? There was evidence that on at least two occasions the appellant had handed out money in the presence of what the learned trial judge refers to as “the people”. But this is insufficient evidence on which to base a presumption or finding that, it was the normal procedure.

His Honour’s second error was put in a rhetorical way: “... Why did not the accused mention how and when he paid the money when the police investigation started ...” It is the legal right of a person suspected of or charged with the Commission of an offence to remain silent when interviewed by the Police or anyone else. There is no law in this country which states that a person suspected of having committed an offence or charged with an offence has to tell anything to anyone. Of course it would help if a person did tell his/her story. But there is no legal obligation to do so. And there are reasons why sometimes such people do not say anything to the police. One is that his or her lawyer may have advised him or her to remain silent. Now it would be most unjust to penalise a person by not believing him or her when he or she has acted on Counsel’s advice. And it would be most unfair to disbelieve a defendant at his trial simply because when he was interviewed by the police before his trial he was so scared that he did not say anything. Courts must bear in mind that Police have been proven to have intimidated people suspected or accused of having committed defences against the law.

These errors quite clearly led the learned trial judge to disbelieve the appellant. Once again I opine that the finding cannot be allowed to stand.

MARABUG ROAD PROJECT

That K4000 for this project was handed out but is not in dispute. It is apparent from the evidence that the money was handed out publicly. The amount of K1000 given to Paul Pulupa was for the death of Ulga and as to this money the trial judge had the following to say:

“But with the K1000 handed to Paul Pulupa the whole impression created is that this was not an obligation of all the people concerned with the road project but rather a more personal obligation of the accused. Whilst Wek Iki is quite specific over the compensation for the death of Kuan, he really does not say anything about the responsibility for the death of Ulga. The accused himself does not say the obligation for compensation for Ulga was an obligation of all the people concerned in the road project - merely that he had died by poisoning. And the way he asked Inspector Kera for it later clearly suggested it was more a personal obligation towards a compensation debt. “He told me the K1000 he contributed to a funeral celebration”. If so this is clearly an application for his own use of the money due to the labourers for the road.”

Wek Iki’s evidence is more specific than the trial judge’s finding above. The following is from his evidence:

“Q. Was any compensation paid for the death of Ulga?

A. We gave K1000.

Q. To whom did you give that K1000?

A. We gave it to Councillor Pulupa but CID got that money.” (my emphasis)

So contrary to what the trial judge found Wek Iki specifically said “We gave K1000” and “We gave it to the Councillor Pulupa”. He did not say the accused gave it to Pulupa. It appears therefore that according to Wek Iki’s evidence the obligation to pay for the death of Ulga was a group one and not that of the appellant personally. If there was any doubt about this I consider it was dispelled when Wek Iki was cross-examined on it:

“Q. Did you say that the leaders decided to give K1000 for compensation for one death and K2000 for another compensation payment?

A. It was ourselves we did say all that and Mara was not in there.

Q. Who was in those discussions?

A. Mara went in later and it was ourselves we discussed.”

This discounts in very clear terms His Honour’s finding that the obligation to pay for the death of Ulga was a personal one for the accused and once again his finding cannot be allowed to stand.

I would allow the appeal, set aside the conviction and sentence and discharge the appellant.

AMET J: The appellant was charged with dishonestly applying to his own use the sum of K5100 in cash, money which belonged to the Western Highlands Provincial Government. The appellant was Premier of the Province at the material time and that the moneys came into his possession to be paid out by him to groups who had done work on various road projects. He was convicted of the sum of K4100 and was sentenced to three (3) years imprisonment with hard labour, but one year was to be suspended on the condition that he repaid the amount of K4100 to the Provincial Government.

The amount of K5100 was alleged to have been made up of three separate amounts to be paid out to different groups for three particular road projects. These were:

1. K1100 out of K1500 for the Kunya-Kuta road project in August 1983.

2. K2000 for the Kuta-Koge Nui Bridge project in December 1983.

3. K2000 out of K4000 for the Marabug road project in March 1984.

The appellant appealed against both his conviction and sentence. The sole ground of appeal against conviction was that it was unsafe and unsatisfactory in the circumstances and that the sentence was manisfestly excessive.

It is useful, before embarking upon the facts, to recall the principles relevant to the approach which this Court should take in the re-examination of the conclusions of the trial judge upon facts proven before him, or rather inferences of facts from other specific findings or conclusions of facts. The relevant English and Australian authorities are succinctly summarised by Pratt, J in Karo Gamoga v The State [1981] PNGLR 443 at pp 454-455. In Benmax v Austin Motor Co Ltd [1955] AC 370 at p 376 Lord Reid said:

“But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”

Similar views were expressed by the Australian High Court in Warren v Coombes [1979] 53 ALJR 239 at pp 300-301.

The court also said at p 301 that:

“The duty of the appellate court is to decide the case, the facts as well as the law, for itself. In so doing it must recognise the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they themselves, or if, after giving full weight to his decision, they consider that he was wrong, they must discharge their duty and give effect to their own judgment.”

The thrust of the appellant’s submission was that the learned trial judge had made a number of fundamental errors in his findings of primary facts against the appellant which coloured and influenced his findings of secondary facts and the adverse inferences he drew therefrom against the credibility of the appellant as a witness. The appellant maintained that if this Court accepted that the trial judge erred in those findings of facts and adverse inferences he drew therefrom against him, then the verdict is unsafe and unsatisfactory and so should be quashed.

I turn to deal with the submissions under each of the amounts for the respective projects as that is the manner in which the trial judge dealt with them and the appellant in his appeal.

1. THE K1500 FOR THE KUNYA-KUTA ROAD PROJECT

This amount was raised by Payment Voucher No 769 dated 16/8/83 together with moneys for two other projects which were not in issue. The other two were Togoba Airstrip road K1000 and Yumbilga-Murk road K640, making a total of K3140. One cheque was raised for this amount and cashed by the staff of the engineering unit and the cash retained. On payment voucher No 769, below the project particulars and amounts was written “above monies are to be collected by Mr N Mara, Premier”. These words were marked with an arrow from the amount of K1500 for the Kunya-Kuta Road. The appellant signed when he picked up the “moneys” and was witnessed on 17/8/83. The other evidence relating to this amount is that of P J Dorflinger, the Provincial Engineer, who said the money was picked up by the Premier in referring to the money for the Kunya-Kuta road project. The appellant himself deposed to taking only the K1500 for the Kunya-Kuta road and not the other two amounts.

The appellant had contended that the learned trial judge erred in concluding that the court was concerned with the second and the third amounts on the voucher, namely Yumbilga-Murk project K640 and the Kunya-Kuta project K1500 and further finding as a matter of fact that the appellant received those two sums of money. The appellant submitted that the evidence was more consistent with his only picking up the Kunya-Kuta road K1500 as was his own evidence. It was contended that though he signed the voucher, his signature and the words referred to above are encircled with an arrow pointing to them from the K1500 for the Kunya-Kuta road, and coupled with Dorflinger’s and the accused’s own evidence, it clearly refers to only K1500 being picked up by the appellant. This, it was submitted, was consistent with the State case only alleging the K1500 being taken by the appellant. It was not part of the State case that the appellant also took the K640 for the Yumbilga-Murk project.

The trial judge appears to have drawn the inference from this conclusion at p 145 of the appeal book in his judgment:

“He (appellant) states that he told them that he had only received money for one road yet he had people from two projects in front of him, Mong and his people for Kunya-Kuta road and Tibukaga for Yumbilga-Murk road. — How the accused could say that, when he had just signed a voucher for K640 for one road and K1500 for the other I don’t understand”.

And so the trial judge concluded:

“This all casts doubts on the credibility of the accused as a witness.”

I accept the appellant’s contention that the learned trial judge erred in finding the appellant had picked up both the K640 and the K1500. The signing of the voucher is quite clearly referring to the K1500 only, as was Dorflinger’s evidence, both rendering consistency to the appellant’s evidence. Two facts appear to have influenced the trial judge’s opinion; the fact that he, the appellant, signed the voucher, which did not necessarily mean he picked up all three amounts; and the fact that he had people for both projects before him also did not necessarily follow that he had monies for both projects. There were no direct evidence that the appellant picked up both amounts.

The trial judge then accepted the evidence of one Tibukaga, who was a defence witness, and a representative for the Yumbilga-Murk project people, that he received K500, but because of the error above, the trial judge concluded this was K500 from the K640 and not from the K1500. Tibukaga also had said he received K500 whilst K1000 was given to Mong for his group for the Kunya-Kuta road.

However, the learned trial judge chose to accept Tibukaga’s evidence only in relation to K500 he said he received, but not the K1000 he said Mong had received. This rendered some consistency with the appellant’s evidence. The learned trial judge then chose to accept the evidence of Mong, a State witness and representative of people who were there to receive money for the Kunya-Kuta road project, who said he only received K400 and that Tibukaga who was also present in the Premier’s office to get the money, received only K300. Another State witness Kobra Para also said Mong received K400 and Tibukaga K300. He belonged to Mong’s tribe; and he said his tribe paid another K400 to the Paraga tribe of Tibukaga’s for helping them.

What transpires is quite a conflict as to what amounts were received by what person or groups. Whilst the two State witnesses Mong and Kobra Para are consistent about Mong receiving only K400, they are also both consistent that Tibukaga only received K300 and Kobra Para adds another K400 to the picture.

The learned trial judge then without any explanation chose to accept Tibukaga’s evidence that he received K500 as against Mong’s and Para’s that he only got K300, but then preferring Mong’s and Para’s evidence that Mong only got K400 and not K1000 as Tibukaga maintained.

The learned trial judge gives no explanation as to how he arrives at this picking and choosing, in particular against the evidence of Mong and Para that Tibukaga only received K300.

I find this quite difficult to reconcile. It seems to me that having made the error as to the K640, the learned trial judge accepted Mong’s evidence as to his receiving only K400 to make that consistent with an outstanding amount of K1100 from K1500, but that the K300 Mong and Para said Tibukaga received didn’t fit into the picture and so was simply ignored without explanation.

The learned trial judge having made, as I have accepted, an error as to the amount the appellant received, and thereby doubting his credibility as a witness of truth, said of the appellant:

“I find the accused so discredited here that I cannot accept his evidence so I am left with clear misappropriation of the balance from the K1500 after allowing for what William Mong said he received. I am satisfied Tibukaga’s moneys did not come from the K1500 although it was made to appear as if it did.”

These conclusions unfortunately flowed from the wrong finding of fact at the very outset. The trial judge was thus not able to give any weight to the appellant’s evidence supported by Tibukaga, that he paid out the K1000 to Mong.

I am satisfied therefore that the learned trial judge’s findings and inferences in relation to the amount of K1500 are wrong and so I uphold the submission that in relation to the misappropriation of K1100 the finding is unsafe and unsatisfactory.

2. THE K2000 FOR THE KUTA KOGE NUI BRIDGE PROJECT -

In relation to this amount the evidence was short. It was not disputed that the appellant did receive the K2000. There was only one material State witness, one Joseph Korop, representing his people who worked on this project. He made the complaint and contended that he did not receive any money from the appellant for this project. The appellant in his evidence maintained that he and the Provincial Government Project Officer, one Thomas Alu, went together to the Engineering Unit and picked up the money in a brown envelope. The appellant put it in his bag and brought it to his office with Thomas Alu. Joseph Korop was outside the appellant’s office, so the appellant and Thomas Alu took him into Thomas Alu’s office and there the appellant handed the money to him. The appellant maintained that there were three of them present, himself, Thomas Alu and Joseph Korop. So that was the evidence. As the learned trial judge commented, it was a case of believing one or the other. Unfortunately for the appellant, though he did try to call Thomas Alu, who was not available immediately, and following an adjournment to locate him which was not successful, the court rightly or wrongly refused another adjournment to enable the appellant time to locate his witness. Thus, the court was left with only the appellant’s and Joseph Korop’s conflicting accounts.

The appellant again contended that the learned trial judge erred in his findings on the primary facts and which compounded his secondary conclusions and the adverse inferences he drew therefrom against him. Firstly, the appellant pointed to an error of fact at the very outset in the learned trial judge’s judgment at p 146 where he concluded:

“The accused states he gave the money to the witness when he was by himself.”

A little further on the same page again the trial judge continued:

“However, the accused behaviour in handing it out just to the witness in his office with no witness is rather unusual. The normal procedure then was to call the people together and make political capital out of the occasion and also to ensure everyone saw the money being handed out so there would be no complaint.

The accused’s story just does not make sense so I must believe the witness Joseph Korop.”

The evidence in chief of the appellant is as follows:

“I myself plus the project officer we went down to the Engineering Unit and picked up that money in a brown envelope. On top of that brown envelope in a black marking pen they wrote K2000. I took it and put it in my bag and brought it back to my office with Thomas Alu. That man was still waiting outside my office so we told him to come into office with us. We didn’t go into my office, but we went into Project Officer’s office and I handed over that money. In there we were three men while I handed over money to him - myself, Project Officer and the complainant.”

Later in cross-examination when he was asked where he had paid the money to Joseph Korop, the appellant said:

“One afternoon about 2.00 pm in my office with another man Thomas.”

lt is suggested that the alleged error of fact quoted is in fact not an error at all, that the learned trial judge was not referring to the appellant and the witness being alone, but of the witness being alone and not with any of his people, I beg to differ; I cannot read that sentence in that way, and indeed, in my view the next sentence quoted affirms the view that the reference is to the accused being alone with the witness. The sentence is this:

“However, the accused behaviour in handing it out just to the witness in his office with no witness is rather unusual.”

This sentence again does not refer to the witness being alone. It speaks of there being no witness at all, with the appellant or with the witness, which of course was not the appellant’s evidence. It is further suggested that the next sentence quoted clarifies the above two, in that what the learned trial judge was referring to was the failure of the appellant to call the people together to witness the handing over of the money to “make political capital of the occasion.” The learned trial judge said:

“The normal procedure then was to call the people together and make political capital out of the occasion and also to ensure everyone saw the money being handed out so there would be no complaint.”

I do not accept that this necessarily clarifies the clear import of the language used that the references were to the appellant and the witness being alone and not just the witness being alone and without his people. Furthermore, this supposed “normal procedure” is quite obviously a wrong premise upon which to draw an adverse inference of fact against the appellant. This is not the “normal procedure” at all and the learned trial judge erred in so concluding. All politicians do not have to do that. It is not a statutory requirement. A politician could chose not to do that, and no adverse inference should be drawn against him as a result of it.

It is true that the appellant was inconsistent as to where he said he gave the money to the witness, but I do not consider that that necessarily renders the substance of his evidence untrue or unbelievable. It was not the basis on which the learned trial judge did not accept the appellant’s evidence.

I consider that the learned trial judge erred in several respects which all contributed to the final conclusion that:

“The accused’s story just does not make sense so I must believe the witness Joseph Korop.”

As I have accepted the learned trial judge erred in the presumption of fact as to what “the normal procedure” is; that this error contributed to the error that the appellant was with the witness without any witnesses at all from either side.

The end result in my opinion is that the conclusion is so tainted that it is unsafe and unsatisfactory to found a conviction upon it.

3. THE K2000 OUT OF THE K1000 FOR THE MARABUG ROAD PROJECT

The learned trial judge found that only K1000 was applied by the appellant to his own use. It was not in dispute that this amount was handed over to one Paul Pulupa, by the appellant, at a gathering of people who had worked on the road project. The issue was for what purpose this money was given to Paul Pulupa. Paul Pulupa gave evidence that when the appellant gave him the money the appellant told him that they would pay compensation for the death of his father. Paul Pulupa said he gave the money to an old father of his, one Talupa Wiko to keep because their tribesmen had not done any work on the project to receive any payment. The appellant said he gave the K1000 to Paul Pulupa to pay compensation, that it was not his own wish, but that of the leaders of the people. The money was to be paid to the deceased’s tribe, but because it would take a while to arrange the compensation it was agreed that old man Talupa Wiko was to look after the money. He said he gave money to Paul Pulupa who was a Councillor, in front of about 100 people and not secretly.

I consider that there was sufficient evidence to suggest that the K1000 was applied to the use and purpose of the whole tribe in compensation for death of one of the two men. There was accepted evidence that two men died. The learned trial judge accepted another K1000 was retained for compensation payment for one of the two men, to be paid by the group. I consider that there was ample evidence from which to find that this K1000 was also for compensation payment for the other man. There was conversely no evidence to suggest beyond doubt that it was for the appellant’s personal obligation. The learned trial judge concluded:

“But then with the K1000 handed to Paul Pulupa the whole impression created is that this was not an obligation of all the people concerned with the road project but rather a more personal obligation of the accused.”

I consider, with respect to the learned trial judge that the impression I get from all other evidence too is that the group agreed to this division of the money. I consider that the learned trial judge, having already formed an adverse view of the appellant’s credibility as a witness of truth at the very outset, from the erroneous conclusions of facts, was unfairly prejudiced against the evidence by the appellant. I am thus of the opinion that the conclusion in respect of this K1000 is also unsafe and unsatisfactory.

In the end result, in my opinion, the conviction of the appellant is unsafe and unsatisfactory and so I uphold the appeal, quash the conviction and set aside the sentence and discharge the appellant.

CORY J: In this appeal, the appellant firstly applies under Section 6 of the Supreme Court Act Ch.37 to adduce fresh evidence in two parts. Section 6 provides that:-

“(1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the Court the decision of which is appealed against, subject to the right of the Supreme Court -

(a) to all the fresh evidence to be adduced where it is satisfied that the justice of the case warrants it ....”.

The principles of common law governing the reception of fresh evidence has been well covered by a number of judgements of this Court: The Government of Papua New Guinea and Davis v. Barker (1977) PNGLR 386, Raphael Warakau v. The State (unreported Supreme Court Judgement No S.C.184 3rd November 1980), James Neap v. Independent State of Papua New Guinea (unreported Supreme Court judgement No. S.C.228 3rd May 1982), South Pacific Post Pty Ltd v. Ikenna Nwokolo (1984) PNGLR 38 wherein it was decided that the justifications for the reception of fresh evidence on appeal are as set down by Lord Justice Denning in Ladd v. Marshall [1954] EWCA Civ 1; (1954) 3 A.E.R. 745 at 748 referred to in Barkers case above:-

“Three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the results of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible”.

The first part of the fresh evidence which the appellant would seek to introduce is the evidence of the appellant’s defence counsel at the trial, Mr. Peter Kopunye, in relation to personal observations of roadworks which he made after the trial and which it is claimed supports the contention that the road built by Mr. Tibukaga was not the Numbulga Murk Road. All this information was in existence and available before the trial. It is in conflict with the evidence of Tipukaga who clearly stated under cross examination that he built the Numbulga Murk road.

In all the circumstances I refuse leave to admit this fresh evidence on the hearing of this appeal.

The second part of the fresh evidence which the appellant would seek to introduce is the evidence of a Mr. Jepi Tony that at the end of 1983 he was given K400 by Mr. Joseph Korop for his part in building - the Kuta - Kogue - Nui Bridge and that this evidence would affect the credibility of Joseph Korop, a State witness, who denied receiving K2,000 from the accused for the construction of the said bridge. This information was also available before the trial. Mr. Kopunye, the accused’s defence counsel, in his affidavit states that he did not make inquiries from Joseph Korop’s fellow villagers to support the accused’s contention of payment, because he chose to rely on the alleged corroboration evidence of Mr. Alu, but that Mr. Alu failed to appear when called. The trial judge granted an adjournment overnight, but Mr. Alu again failed to appear and application for a further adjournment was refused.

What the Court is really being asked to do is to make up for the inadequate preparation for trial by counsel for the defence. At the trial it was open to defence counsel to obtain from the court a subpoena for Mr. Alu’s appearance or to ask the trial judge to order Mr. Alu to appear.

Even at this late stage of the hearing of the appeal, there is no affidavit by Mr. Alu or Jepi Tony and neither of these persons were available on the hearing of the appeal to give evidence on oath and for that evidence to be tested by cross examination.

This is not a case where “the justice of the case warrants” the admission of the fresh evidence, such as was the case in Busina Tabe v. The State (1983) PNGLR 10 where there was documentary evidence, in the form of bank slips, supported by the affidavit evidence of the bank Teller which showed that justice had miscarried at the trial. In the present case the Court is left in the vague, uncertain situation as to what the actual fresh evidence is, what weight to attach to it and what effect it would have.

In all the circumstances I also refuse leave to admit this fresh evidence on the hearing of the appeal.

The first ground of appeal is:-

(a) THAT conviction was unsafe and unsatisfactory in the circumstances.

As is stated in the judgement, the alleged misappropriation of K5,100 was made up from three particular amounts to be applied to three particular projects:

(1) K1,100 out of K1,500 to be applied for the Kunya-Kuta road project in August 1983.

(2) K2,000 from Kuta Koge Nui Bridge project in December 1983.

(3) K2,000 out of the K4,000 for the Marabug road project in March 1984.

In relation to (1) above, the trial judge was satisfied that the accused had misappropriated K1,100 out of the K1,500 for the Kunya-Kuta project. The said K1,500 was one of the payments appearing in voucher No. 769 dated the 16th of August 1983 which read as follows:-

Date raised: 16.8.83

Particulars of Charge:

1)	Togoba - End of Air Strip	K1,000
2)	Numbulga Murk Road	640
3)	Kunya Kuta Road	1,500
		3,140

Above monies to be collected by Mr. N. Mara, Premier.

Signed: N. Mara 17/8/83

The trial judge was satisfied that the accused had received both the K640 for the second item above and also the K1,500 for the third item and rejected the accused’s contention that he had only received K1,500 in cash. It would not be unreasonable to infer that it was very likely that this is what infact happened. The Provincial Engineer, Dorflinger, stated that the above three projects were all paid at the same time. If the K640 for the second project was not received by the accused, then as the trial judge asked “who dealt with the K640?” - it remains unaccounted for. The witness Tibu Kaga gave evidence that he only received one payment of K500 for the Numbulga Murk Road on the payment day the 17th of August 1983. However the State evidence does not establish beyond reasonable doubt that the accused did in fact pick up the total of K3,140 cash. While then I could not be satisfied on the evidence that the accused, as he claims, only received K1,500 in cash, however as his claim is capable of being supported by the arrow on the voucher No. 769, I therefore consider that the accused should be given the benefit of the doubt. It necessarily follows from this conclusion that the trial judge may have been in error in disbelieving the accused’s allegation that he had only received K1,500 in cash. I have had the benefit of reading the Judgement of Amet, J. and I agree with his reasons that in all the circumstances it would be unsafe and unsatisfactory to convict the accused of misappropriating this sum of K1,100.

(2) K2,000 for the Kuta Koge Nui Bridge project

In relation to this project there was a conflict in the evidence. The State witness, Joseph Korop, gave evidence that his tribe built the bridge and after completion of the work, he came to see the accused, the Premier. The accused, he alleged contacted the Engineering Section to arrange inspection. Sometime later Korop again called to see the Engineering Section who then referred him to the Premier for payment and was told that money had already been given to the Premier. Korop visited the accused and was told to assemble the people the following day for payment. However when the accused did not turn up for payment, Korop again went to see the accused and the accused then told him that there was no money for payment. He then went to the Police and subsequently was shown documents from the Engineering Section that he was supposed to have received K2,000 for the building of the bridge. The witness stated that he never received any payments at all. The Engineering Supervisor, Dorflinger, corroborated Korop in stating that he received complaints from the people in relation to the non payment of work for the bridge.

The accused’s account was that he in fact paid Korop K2,000 in the Project Officer’s office in the presence of Thomas Alu.

On the hearing of the appeal, the appellant submitted that the trial judge was in error when he said in his judgement that “the accused states that he gave the money to the witness (Korop) when he was by himself” and that in fact the accused’s evidence was that the witness, Korop, was not by himself but that Thomas Alu was present. The respondent in reply submitted that what the trial judge meant when he said that the accused alleged that Korop was “by himself”, was that Korop was by himself without his supporters. This interpretation in supported by what the trial judge said shortly afterwards when he said that the normal procedure was “to call the people together at the time of payment ..... and to ensure everyone saw the money being handed out”. In the circumstances I accept the respondent’s explanationas being more likely and I am not satisfied that the trial judge made a mistake of fact in this respect.

In rejecting the accused’s account of the payment of the K2,000, the trial judge gave as one of his reasons, the fact that the accused had made no mention of the payment to the police when the police started investigating the matter. In this respect the trial judge was clearly in error, the accused was perfectly entitled in his record of interview to refuse to answer questions and no adverse inference against the accused should have been drawn by the trial judge because of this. However putting this aside, there remains the conflict of evidence between the witness Korop and the accused. Korop was cross examined on his evidence and adhered to the sequence of events outlined above, concluding with the accused saying that he had no money and that in fact no money was paid. The trial judge had the benefit of observing the witness Korop in the witness box and accepted his evidence. On the other hand, the accused claims that Thomas Alu was a witness to the payment of the K2,000. This witness could have been called to oorroborate hhe accused. The fact that he was not called although available, must be taken into account in determining the credibility of the accused’s allegation. Moreover there is one inconsistency in the accused’s evidence which does have an unfavourable affect on his credibility: in the accused’s evidence in chief he stated that at the time of payment “we didn’t go into my office but we went into Project Officer’s office and I handed over that money”, but under cross examination he overlooks the evidence which he has already given and states that the payment was made “in my office”. In all the circumstances I see no reason why the trial judge’s finding that the accused misappropriated this sum of K2,000 should not be accepted.

(3) Misappropriation of K2,000 out of the K4,000 for the Maraburg Road project

The K2,000 in question was divided into a K1,000 compensation payment in relation to the death of Kuan and K1,000 handed to Paul Pulipa compensation in relation to the death of Ulkaga. The trial judge was not satisfied as to the misappropriation of the first K1,000, but was satisfied that that there was a misappropriation in relation to the K1,000 paid to Paul Pulipa and concluded that this latter payment was an application “for the accused’s own use of the money due to the labourers for the road”. The road in question here was the Warabung or Papakola Road.

The accused’s contention here is that the K1,000 which was paid to Pulipa was paid at the direction of the leaders of the village which had constructed the Papakola road, “they built the road to raise the money” and that having raised the money it was handed over by the accused to the villages’ councillor, Wep Iki. This account of the payment of the money to Pulupa is supported by the evidence of the councillor for the villagers who built the road, Wep Iki. In the circumstances I uphold the appellant’s submission that the evidence does not support the judge’s finding of misappropriation by the accused of this K1,000 which was paid to Pulupa.

To sum up I find that the amount of money misappropriated by the accused be reduced from K4,100 to K2,000. I confirm the conviction and substitute a sentence of 18 months imprisonment with hard labour instead of three years. The trial judge ordered the accused to make restitution to the Western Highlands Provincial Government the sum of K4,100, if this sum has already been paid by the accused, then I would order K2,100 be refunded to the accused.

ORDER OF THE COURT

Appeal upheld, conviction quashed, sentence set aside and further order that the sum of K4,100.00 be repaid to the Appellant.

Lawyer for the Appellant: J. Gawi & Associate

Counsel: J. Gawi

Lawyer for the Respondent: Public Prosecutor

Counsel: M. Unagui