Poke v Independent State of Papua New Guinea [2010] PGSC 4; SC1055 (31 March 2010)

SC1055

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCRA 3 OF 2008

BETWEEN:

STANLEY POKE
Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Lenalia, Hartshorn and Yagi JJ.
2009: 30th October,
2010: 31st March

SUPREME COURT APPEAL - Appeal against conviction – s. 383A(1)(a) Criminal Code – Misappropriation – s. 383A (3) (d) - persons to whom property belongs - equitable interest

Facts:

The appellant appealed against his conviction for misappropriation under s. 383A (1)(a) Criminal Code. His grounds of appeal included that the indictment was defective, that the persons to whom he had applied the money were not named, the sum for which he was convicted of misappropriating was incorrect, and the proprietary right in the cheque was no longer, ‘property belonging to another’.

Held:

1. The defects in the indictment are not material and cannot be considered to have caused prejudice to the appellant.

2. The naming of the persons to whom he had applied the money was immaterial as it is only necessary for the appellant's application of the funds to his own use to be proved. Section 383A(1)(a) Criminal Code only requires proof of either application to the appellants use or the use of other persons, not both.

3. The miscalculation stated under appeal Ground 5 (c) causes no prejudice to the appellant and can be corrected by this Court pursuant to s. 27(1)(b) Supreme Court Act.

4. Where money is granted for a particular purpose, the grantor has a legal and equitable proprietary interest in the money until it is expended on the purpose for which it was granted (Joseph Ropka v. The State [1994] PNGLR 535).

5. Section 383A (3) (d) Criminal Code includes a person having an equitable interest as a person to whom property belongs in s. 383A Criminal Code.

6. The Appeal is dismissed.

Cases cited:

John Beng v. The State [1977] PNGLR 115 SC112
Joseph Ropka v. The State [1994] PNGLR 535

Counsel:

Mr. D. Koeget, for the Appellant
Mr. J. Pambel, for the Respondent

31st March, 2010

1. BY THE COURT: This is an appeal against a conviction for misappropriation pursuant to s. 383A (1)(a) Criminal Code.

Facts

2. The appellant, a police sergeant, received a cheque from the Southern Highlands Provincial Government for K 20,400. It represented travelling allowances for him and 16 other policeman of K 1,200 each. The appellant only paid K 920 to each of the policemen and himself and misappropriated the remainder.

Law

3. As to an appeal against conviction, s. 23(1)(a) and (2) Supreme Court Act states:

"Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that –

a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory;....

(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred."

4. The Supreme Court case of John Beng v. The State [1977] PNGLR 115; SC 112, after considering various authorities, held that the equivalent of s. 23(1)(a) in the former Supreme Court Act 1975, should be interpreted to mean that;

"the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed."

Grounds of appeal

5. The appellant appeals his conviction as in essence he contends that:

a) the indictment was defective as the persons to whom he applied the subject money (other persons) were not named,

b) during his arraignment the other persons were not named,

c) the sum for which he was convicted of misappropriating was incorrect,

d) he was convicted of applying funds to his own use and to that of other persons, when the other persons were not named in the indictment,

e) the proprietary right in the cheque was no longer, ‘property belonging to another’.

State argument

6. The State contends that:

a) as to 5(a), any defects in the indictment were not objected to at trial and anyway, did not result in a miscarriage of justice,

b) as to 5(b) and 5(d), s. 383A(1)(a) Criminal Code only requires proof that property was dishonestly applied to the appellant's own use, or to the use of another. As long as application to the appellant's own use was proved, it was not necessary to name the other persons,

c) as to 5(c), it is conceded that there was an error in the calculation and the sum should be K4,480. This can be corrected as it does not prejudice the merits of the appellant's case in anyway,

d) as to 5(e), the money was provided to the appellant for a particular purpose and the State had a legal and equitable proprietary interest in the money until it was expended as intended.

Decision

7. As to 5(a), we are of the view that the defects in the indictment were not material and cannot be considered to have caused prejudice to the appellant. As to the other persons not being named, as it was only necessary for the appellant's application of the funds to his own use to be proved, the other persons not being named is in our view, immaterial.

8. As to 5(b) and 5(d), s. 383A(1)(a) Criminal Code only requires proof of either application to the appellants use or the use of other persons, not both. We see no merit in this argument.

9. As to 5(c), this miscalculation causes no prejudice to the appellant and can be corrected by this Court pursuant to s. 27(1)(b) Supreme Court Act.

10. As to 5(e), the decision of this Court in Joseph Ropka v. The State [1994] PNGLR 535, is authority for the proposition that where money is granted for a particular purpose, the grantor has a legal and equitable proprietary interest in the money until it is expended on the purpose for which it was granted.

11. Further, s. 383A (3)(d) Criminal Code provides that for the purposes of s.383A,

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

12. We are satisfied that at the time the appellant applied the money for his own use, the State and the 16 policeman had an equitable interest in the money pursuant to s. 383A (3)(d) Criminal Code and the decision in Ropka (supra). Consequently the appellant applied to his own use, property belonging to another in terms of s. 383A(1)(a) Criminal Code.

13. After considering the various grounds and arguments of counsel, we are not satisfied that in all the circumstances there is a reasonable doubt as to the safeness or satisfactoriness of the conviction or that a miscarriage of justice has occurred.

14. The appeal is dismissed and the sum that the appellant was convicted of misappropriating is amended to K4,480.

Gubon Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent