Mulungu v State [2020] PGSC 124; SC2034 (27 November 2020)

SC2034

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SCRA NO 43 OF 2018

BETWEEN:
ANDREW MULUNGU
Appellant

AND:
THE STATE
Respondent

Waigani: Gavara-Nanu J, Anis J & Miviri J
2020: 22^nd July & 27^th November

APPEAL - Criminal Law - Misappropriation - Trial - Criminal Code Act, Chapter No. 262; s.383 - Owner of the properties making a written statement for committal hearing - Owner of the properties passing on before trial - Discretion of the trial judge to rely on deceased's statement - District Courts Act, Chapter No. 40; s. 102 - Evidentiary value of the deceased's statement – Statement of the deceased relied upon by the court – Whether warning required for court to accept deceased's statement - Verdict - Guilty.

Cases Cited:
Papua New Guinea Cases

Davies v. Baker [1977] PNGLR 386
Les Curlewis and Ruben Renagi v. Protect Security and Communications
Limited David Yuapa (2013) SC1274
Jimmy Mostata Maladina v. The State (2016) SC1496
John Jaminan v. The State (No.2) [1983] PNGLR 318
The State v. Avaka and Kaipu (2000) N2024
The State v. Max Malala (2018) N7414
State v. John Bill White (No. 1) (1996) N1441
State v. Thomas Abaua (No. 1) (2012) N4656
Fred Bukoya v The State (2007) SC 887
Havila Kavo v The State (2015) SC1450

Overseas Cases Cited

Harris v. R [1954] HCA 51; (1954) 90 CLR 652, 28 ALJ 402
House v. R (1936) 55 CLR 499
Khanna v. Bond Realty Pty Ltd [2019] NSWCA 128
PPK v. Willoughby Pty Ltd v. Baird [2019] NSWACA 48

Counsel:

A. Ayako, for the Appellant
C. Sambua, for the Respondent

27^th November, 2020

1. GAVARA-NANU J & MIVIRI J: This is an appeal against the decision of the primary judge given on 31 July, 2018, in which the appellant was found guilty on three counts of misappropriation. In the first count, the appellant was charged that he, between 15 July, 2010 and 30 November, 2011, dishonestly applied to his own use sum of K42,800.00, property of Stanley Tigi Hangu. In the second count, the appellant was charged that he, between 15 day of July, 2010 and 30 day of November, 2011, dishonestly applied to his own use sum of K18,000.00, property of Stanley Tigi Hangu. In the third count, the appellant was charged that he between 15 of July, 2010 and 30 November, 2011, dishonestly applied to his own use sum of K1,700.00, property of Stanley Tigi Hangu. All the charges were laid under s. 383 of Criminal Code Act, Chapter No. 262. The appellant appeals against his convictions on all three counts.
   
2. The relevant brief background facts are these. The complainant, Stanley Tigi Hangu who is now deceased, (deceased) was a retired primary school teacher, came to Port Moresby from Tari in the Hela Province in July, 2010, to access his Superannuation entitlements. The appellant was a policeman living and working in Port Moresby. When the deceased arrived in Port Moresby, he had no place to stay, he met the appellant who is also from Tari, Hela Province, and had known the deceased before, invited the deceased to stay with him and his family at their Sabama police residence.
   
3. On 15 July 2010, the deceased received his Superannuation entitlements, totaling K204,305.42. The appellant, without being asked by the deceased started advising the deceased on how to invest his money. The deceased believed he was receiving good financial advice from the appellant, so on 16 July, 2010, upon advice of the appellant the deceased and the appellant went to the deceased’s bank, Bank South Pacific (BSP) and got a bank cheque for K42,800.00 which was drawn from the appellant’s account in favour of Ela Motors for the purchase of a Toyota Hilux. The deceased and the appellant then went to Ela Motors, upon arrival at the Ela Motors Sales Office, the appellant told the deceased to stay outside while he went inside and organized the purchase of the vehicle.
   
4. At Ela Motors Sales Office, the appellant was told that the price of the vehicle was K39, 500.00 so the appellant and the deceased went back to BSP, this time the appellant deposited the bank cheque for K42, 800.00 into his own account and got another bank cheque for K39,500.00 from his account in favour of Ela Motors. They returned to Ela Motors Sales Office, the appellant again told the deceased to wait outside while he went into the Sales Office to organize the purchase of the vehicle. After sometime the appellant came out of the Sales Office and told the deceased that he had made the payment but it would take some time for the vehicle to be ready. The deceased asked the appellant for the purchase documents for the vehicle but the appellant told him that he would photocopy the documents then give them to him later.
   
5. Sometime later the vehicle (Toyota Hilux) was ready to be picked up, however, to deceased's surprise the vehicle was already registered under appellant's name without the deceased knowledge and approval. According to the deceased’s statement the appellant took control of the vehicle from the start, he held the key to the vehicle and was the only one driving it. The deceased did not know how to drive so he asked the appellant to teach him how to drive but the appellant did not.
   
6. On 19 July, 2010, the deceased and the appellant, again upon advice of the appellant went to the deceased’s bank and drew another bank cheque for the amount of K18,000.00 from the deceased's account to purchase a Toyota Camry which was to be used as a taxi. The vehicle was purchased, but again to deceased's surprise, the vehicle and the business name to operate a taxi service were already registered under the appellant’s name without the knowledge and approval of the deceased. The deceased asked the appellant for the copies of the purchase documents for the vehicle but the appellant told him that he had to photocopy them, then give them to him later.
   
7. The appellant never gave the registration documents for the two vehicles and the business name for a taxi service to the deceased.
   
8. On 2 August, 2010, again upon advice of the appellant, the deceased and the appellant went to the deceased’s bank and withdrew K1,700.00 in cash from the deceased's account to pay for a permit from the Investment Promotion Authority to operate the taxi service in the city.
   
9. After realizing that the appellant was using his money for appellant’s own benefit, the deceased laid a complaint with the police in February, 2013.
   
10. The police investigated the complaint and as discussed above, charged the appellant for misappropriating monies belonging to the deceased. The case went through the Committal hearing for which the appellant made a statement, explaining how the appellant used his money for appellant's own benefit. The Committal Court having considered the material made available to it, including the statement by the deceased, committed the appellant to stand trial in the National Court. Unfortunately, the deceased passed away before the commencement of the appellant’s trial in the National Court.
    
11. The State decided to proceed with the appellant’s trial in the National Court.
    
12. The appellant does not deny drawing the bank cheques for the amounts mentioned above from the deceased’s bank account, and how those funds were used to purchase the vehicles mentioned above. He also does not deny depositing the proceeds of the first bank cheques for K42,800.00 into his own account, then drawing a bank cheque for K39,500.00 from his account, which obviously was from the proceeds of the K42,800.00 bank cheque he deposited into his account. The appellant also does not deny that the Toyota Hilux, the Toyota Camry and the business name to run a taxi service in the city were all registered under his name, and not under the deceased’s name.
    
13. The appellant however explained that he did these with the full knowledge and approval of the deceased and he did them for security reasons. He said he was later going to transfer the registration of the two vehicles and the business name for a taxi service to the deceased. The deceased had in his statement denied agreeing or giving his approval for the appellant to register the two vehicles and the business name under appellant’s own name.
    
14. There was a fourth count for misappropriation of K30,000.00 which was drawn from the deceased’s account and deposited into a joint account for the appellant and the deceased. The Court found that given that the K30,000.00 was deposited into the joint account for the deceased and the K30,000.00 was still owned by the deceased and acquitted the appellant of the charge.
    
15. The deceased’s statement which the Committal Court relied on among others, to commit the appellant to stand trial in the National Court was admitted as evidence at the trial in the National Court without objection by the defence. The statement was admitted under s. 102 of District Court Act, 1963, Chapter 40, which is in these terms:
    

102 STATEMENTS OF WITNESSES DEAD, ETC.

Where a person has been committed for trial or sentence for an offence all statements tendered in evidence to the Magistrate constituting the Court may, with the consent of the National Court, be taken without further proof as evidence on the trial, whether for that offence or for any other offence arising out of the transaction or set of circumstances as that offence on proof–

(a) that the witness who made a statement is–

(i) dead or insane; or

(ii) so ill as not to be able to travel; or

(iii) kept out of the way by means of the procurement of the accused or on his behalf; or

(iv) a person registered under the Medical Registration Act 1980; or

(b) either by a certificate purporting to be signed by the Court or by one of the Magistrates to whom the statement was tendered, or by the oath of a credible witness–that the statement was served on the accused or his legal representative.

(Our underling)

16. The other evidence the learned trial judge relied on were records from the deceased’s bank, the Investment Promotion Authority and the widow of the deceased, who told the Court that she had not benefited at all from the two vehicles and the taxi business.
    
17. The appellant raised 14 grounds of appeal but most of them are repetitions; and they can be summarized as follows. 1. The learned trial judge erred in mix fact and law in finding that monies withdrawn from the deceased’s bank account were used for his benefit only and not for the deceased. 2. The deceased had agreed for monies withdrawn from his bank account to be used to purchase the two vehicles and the vehicles were to be registered under the appellant’s name. The learned trial judge therefore erred in finding that those monies were misappropriated by him. 3. The learned trial judge erred in mix fact and law in relying on the evidence of the deceased’s widow because at all material times she was back in her village in Tari, Hela Province. 4. The learned trial judge erred in law in relying on the deceased’s statement as it was subject to cross-examination, and because the deceased had passed-on before the case was tried he could not be cross-examined, the learned trial judge therefore should not have given any weight at all to it. 5. The learned trial judge erred in fact and law in finding that monies withdrawn from the deceased’s bank account were misappropriated by him as all the transactions, including the registration of the two vehicles and the business name to operate a taxi service in Port Moresby, under his name were approved by the deceased.
    
18. This appeal to a greater extent turns on the evidentiary value of the deceased's statement. In this regard, the learned trial judge’s comments regarding the statement are pertinent. His Honour said:
    

“The basis of the application is the complainant Stanley Tigi Hangu lodged a complaint with the Royal Papua New Guinea Constabulary and made the above Statement to them. Such Statement formed part of the committal depositions and the accused was committed to stand trial at the National Court on the 4 counts as a result”.

He was present throughout the Committal Court proceedings at the National Court during the pretrial process till the trial date was allocated. He died due to illness prior of the commencement of the trial.

The defense counsel did not object to the tender of the complainant’s statement dated 24 January, 2017. So by the consent by the National Court the complainant statement was tendered into Court, “as exhibit A”. The Statement of the complainant is regarded as a Statement of Fact.

If there is variance between the contents of the complainant’s Statement tendered and oral evidence of the State witnesses including documentary evidence, then at the end of the State’s case, defense is entitled to in no case to answer submission on the basis it will be prejudicial to the defense case as the complainant cannot be cross-examined on the contents of his Statement.”

(Our underlining)

19. His Honour then said:
    

“The State’s evidence in the trial are consistent with the contents of the complainant’s Statement, and so there was no prejudicial effect on the accused’s case. So, in my view, the defence counsel correctly refrained from making a no case to answer submission at the close of the State’s case”.

20. These observations were made after the learned trial judge said that if the defence found the statement in conflict with other evidence then the defence could be prejudiced by the statement, but the defence was not prejudiced because there was no such conflict. More importantly the defence did not object to the statement being admitted by the Court as evidence, but left it to the discretion of the court to decide whether to admit the statement as evidence. In the end, the learned trial judge in the exercise of his discretion considered the statement credible and admitted it as evidence.
    
21. It follows that the observations on the issue of whether the deceased's statement should have been relied on as evidence by the learned trial judge are really only academic.
    
22. In regard to the monies that were withdrawn from the deceased’s bank account for the purchase and registration of the two vehicles and the business name for a taxi service, the learned trial judge said:
    

“The accused withdrew the sum of K42,000.00 from his savings account with the Bank South Pacific and used it to purchase a grey motor vehicle, a Toyota Hilux, single cab registration numbers GAW-400. He states that the purpose for which the monies was given was fulfilled. So, there was no misappropriation of the sum of K42,800.00. The motor vehicle belonged to the complainant.

But when the sum of K42,800.00 was deposited into the savings account of accused the offence of misappropriation of property was committed at that point in time so the accused withdrew the sum of K42,800.00 from his own savings account and purchased the motor vehicle and registered it under his name. The accused registered the motor vehicle under his name he took possession and full control of it as if he was the owner. Such evidence confirms that the accused applied the sum of K42,800.00 for his own use”. Our underlining.

23. In regard to the K18,000.00, his Honour said:
    

“In relation to the allegation of misappropriation of K18,000.00, there is ample evidence that the accused took the proceeds of K18,000.00 and purchased a grey motor vehicle, Toyota Camry (Sedan) registration number BCX-066 and registered it in his own name. The accused took possession and full control of the motor vehicle when the accused registered the motor vehicle under his name the offence of misappropriate of K18,000.00 was committed”.

24. His Honour then said:

“Such evidence too confirms that the accused misappropriated the sum of K18,000.00. The registration of this vehicle was not transferred the complainant’s name”. Our underlining.

25. In regards to the K1,700.00 his Honour said:

“The documentary evidence of the application of K1,700.00 is clear, as the registration of the business name at Investment Promotion Authority was K50.00 and purchase of the Tax meter is K20.00. The balance of K1,630.00 was applied by the accused to his own use”.

26. The fact remains that the amount of K1,700.00 was dishonestly applied by the appellant to his own use.

27. Whether a statement of a deceased person can be admitted as evidence or not under s. 102 of the District Courts Act, is entirely up to the discretion of the trial judge. In this case, the lawyer representing the appellant was therefore correct in leaving it to the discretion of the Court to decide whether to accept the statement as evidence or not. In the end the learned trial judge in the exercise of his discretion decided to admit the statement as evidence. In his decision his Honour referred to it as material upon which he could rely on.

28. In our opinion, pursuant to the terms of s. 102 of the District Act, once the trial judge in the exercise of his discretion decided to admit the statement as evidence, it became credible evidence and pursuant to the express terms of s.102, the statement did not require "further proof" and the learned trial judge was entitled to rely on it as the criteria or requirements for his Honour to receive the statement as evidence, as found by his Honour were met, apart from the defence allowing the statement to be received as evidence. There was also no need to corroborate the statement. The statement was in our opinion enough on its own even as the basis to convict the appellant.

29. Under s.102, there was also no requirement for a trial judge to warn himself before receiving the statement as evidence. The exercise of the learned trial judge's decision had to be guided by the terms of s. 102 and not any outside source or factor. To say that the trial judge needed to warn himself, would in our opinion amount to venturing outside the scope of s. 102 of the District Court Act. It is not envisaged by the section.

30. That said, we also find that there was independent evidence to corroborate the deceased’s statement, the evidence came from the wife of the deceased, she said she had never seen the vehicles and the taxi business let alone benefitted from them. This is clear and conclusive evidence that the appellant used those vehicles and the taxi service for his own benefit, it is also a clear that the appellant intended to have ownership of the vehicles and the taxi business.

31. Furthermore, the appellant admitted that he registered the vehicles and the business name under his own name, thus he became the owner of the two vehicles and the taxi business. The learned trial judge took particular note of this as clear evidence of misappropriation. His honour was in a much better position to observe the appellant especially his demeanor in the witness box when giving evidence and he found him to be not a witness of truth. We see no reason to disturb his Honour’s finding. In our view the appellant’s own admissions and false denials also corroborated the deceased’s statement. See, John Jaminan v. The State (No.2) [1983] PNGLR 318; The State v. Max Malala (2018) N7414 and The State v. Avaka and Kaipu (2000) N2024.

32. It is important to bear in mind that this appeal is centered around the exercise of discretion by the learned trial judge to admit the deceased’s statement as evidence. The principles to guide an appellate court on an appeal against exercise of discretion by a primary judge have been pronounced often in a long line of cases. In Harris v. R [1954] HCA 51; (1954) 90 CLR 652; 28 ALJ 402, the High Court of Australia reiterated the principles in this way:

“...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material considerations, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for so doing. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred”.

33. These principles were stated quite succinctly in an oft. cited case of House v. R (1936) 55 CLR 499. The principles have been adopted by both the National and Supreme Courts and are therefore part of the underlying law. See, Davies v. Baker [1977] PNGLR 386; Les Curlewis and Ruben Renagi v. Protect Security and Communications Limited and David Yuapa (2013) SC1274 and Jimmy Mostata Maladina v. The State (2016) SC1496.

34. In Khanna v. Bond Realty Pty Ltd [2019] NSWCA 128, the Court in emphasizing the principles to be applied in appeals against exercise of discretion by primary courts, and in adopting the approach taken by the court in PPK v. Willoughby Pty Ltd v. Baird [2019] NSWCA 48 stressed that "heavy burden" lies on the party challenging the exercise of discretion by the primary judge.

35. The single most significant aspect of this case was the appellant’s conduct in going further and registering the two vehicles and the business name under his own name, this was a clear evidence that he intended to own the two vehicles and the business name and he did. From this, it is also reasonable to infer that the appellant held onto the purchase documents for the two vehicles so that he could register the two vehicles and the business name for a taxi service under his name. The learned trial judge therefore had good reasons to reject the appellant’s story that the deceased gave his approval for him (appellant) to register the two vehicles and the business name for a taxi service under his own name.

36. The appellant had the onus to demonstrate that the trial judge erred in the exercise of his discretion to admit the deceased's statement as evidence against him and to find him guilty. He failed to discharge the onus.

37. The deceased's statement was also relied upon by the Committal magistrate to commit the appellant to stand trial in the National Court, this is one reason, the learned trial judge was also entitled to consider and rely on the statement.

38. For the foregoing reasons, we would dismiss the appeal.

39. ANIS J: I have had the benefit of reading the draft judgment of my brothers Justice Gavara-Nanu and Justice Miviri. With respect, I differ, and I do so for the reasons I give herein.

40. The appellant was convicted by the National Court on 31 July 2018, on 3 out of 4 counts for misappropriation, which he had been charged with under s. 383A(1)(a) of the Criminal Code Act Chapter No. 262 (CC Act). He appealed his conviction on 6 September 2018. On 22 July 2020, we heard and reserved our ruling to a date to be advised.

GROUNDS OF APPEAL

41. The appellant pleads a total of 14 grounds of appeal. They are pleaded at paragraphs 1, 2 and 3 in the Notice of Appeal (NoA). They are located at pages 5, 6 and 7 of the Appeal Book (AB).

42. The 3 counts appealed against may be summarized and I quote them in part at paragraph 1 of the NoA herein:

the Court found the Appellant guilty on three (3) counts, namely, misappropriation of K42,800 property belonging to one Stanley Tigi Hangu contrary section 383A(1)(a) of the Criminal Code Ch. No. 262 (“the CCA”) (“the First Count”), misappropriation of K18,000.00 property belonging to one Stanley Tigi Hangu contrary to section 383A(1)(a) of the CCA (“the Second Count”), and misappropriation of K1,700.00 property belonging to one Stanley Tigi Hangu contrary to section 383A(1)(a) of the CCA (“the Third Count”).

BACKGROUND

43. The material facts are as follows. The appellant was a policeman. He and the complainant Stanley Hangu, now deceased, come from neighbouring villages in the Hela Province. The appellant worked as a senior policeman based in Badili in Port Moresby and resided at the Sabama Police Barracks at the material time. As for the complainant, he was a community school teacher. He worked as a teacher for about 31 years. In 2010, he resigned from teaching. Soon after that, he travelled to Port Moresby to claim his retirement benefits. There he met the appellant. He resided with the appellant at the appellant’s premises. On 15 July 2010, the complainant received his Public Officer’s Superannuation Fund (or POSF as it was then known) money. He was paid a lump sum of K204,305.42.

44. Prior to his demise, the complainant laid a complaint with police against the appellant. He claimed that the appellant had deceived him of his business plan. The business plan was that the appellant would assist him purchase vehicles and set up his taxi service company. He said the appellant had done all that, but had also registered the vehicles and the business name of the taxi company, under the appellant’s own name, that is, Andrew Mulungu, instead of registering them under his name. The complainant also alleged that the appellant had misappropriated his money on things that he did not approve or authorise. These led to investigations by police. Charges were laid against the appellant and he was later committed to stand trial at the National Court. On 31 July 2018, the appellant was convicted on the 3 counts for misappropriation, contrary to section 383A(1)(a) of the CC Act.

45. The appellant was unhappy with his conviction and files this appeal. The appeal is as of right, under s. 22(a) and (b) of the Supreme Court Act, Ch. 37 (SC Act), as it is an appeal against conviction only and it raises questions of law and mixed fact and law.

ISSUES

46. The main issues in my view are,

(i) Whether the trial Judge should have cautioned himself in regard to the tendered Exhibit A which was statement of a deceased who was the main material witness in the matter, in his decision, and in not doing so, whether that was crucial or fatal to his decision on verdict.

(ii) Whether the trial Judge should have shown how much weight or reliance was given to Exhibit A in his decision, and whether that was crucial or fatal to his decision on verdict.

(iii) Whether the trial Judge should have clearly set out in his judgment the elements of the offence misappropriation, under s. 383A(1)(a) and if he had not, whether that was fatal to his decision on verdict; whether it means the trial Judge’s decision or findings on each of the elements of the offence, misappropriation, on all 3 counts fell short of the standard of proof which is beyond reasonable doubt.

(iv) Whether the evidence of Mrs Alice Hangu was hearsay, and if so, whether its exclusion was crucial to the outcome.

EXHIBIT A

47. The complainant’s (deceased) statement was tendered into evidence in the Court below. It was marked as Exhibit A. The ground of appeal upon which the first issue is raised is ground 4. I note that grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12 are similar and they relate to ground 4 one way or the other. So, in addressing ground 4, I will or may also be addressing these related grounds of appeal.

48. Ground 4 reads:

His Honor erred in law in finding the untested statement of the complainant dated 24^th January 2017, marked Exhibit A as part of the Respondent’s evidence was sufficient to establish the elements of misappropriation without giving any weight to the fact that the Complainant’s version of facts were disputed by the Appellant and the Complainant died before trial.

49. I have considered the submissions of both counsel, that is, for the Appellant and the State. I begin by considering the transcripts of the proceeding and the trial Judge’s decision where he discusses or addresses Exhibit A. I refer to page 35 line 40 of the AB. The State’s application, made under s 102 of the District Courts Act Chapter No. 40 (DC Act) to tender Exhibit A, commences at page 40 above line 10. And the trial Judge’s decision, where he grants the application, is captured at page 46 line 20 of the AB. In regard to the trial Judge’s written decision on verdict, it starts at page 441 lines 10 and 20 of the AB. It reads:

The defence counsel did not object to the tender of the complainant’s statement dated 24^th January 2017. So by consent of the National Court, the complainant’s statement was tendered into court (as “Exhibit A”). The statement of the complainant is regarded as a state of fact.

If there is variance between the contents of the complainant’s statement tendered and oral evidence of State witnesses including documentary evidence, then at the end of the State’s case, defence is entitled to a no case to answer submission on the basis it will be prejudicial to the defence’s case as the complainant cannot be cross-examined on the content of his statement.

50. The first query I have is this. Was Exhibit A tendered by consent of the parties? Despite the trial Judge’s decision that it was, the appellant submits otherwise. I refer to the transcripts of the proceeding. The relevant part commences at page 40 (whole page) to page 46 line 20 of the AB. The trial Judge asked the defence whether it had any objections to the State’s application to tender Exhibit A. The defence counsel answered, and I quote at line 10 page 40 of the AB, “Yes, Your Honour”. Counsel then goes on to explain his reasons for objecting. The main reason given was that the defence would not have the benefit to cross-examine the author of the statement. Counsel acknowledged that the Court’s power was discretionary and in conclusion submitted that the defence would leave it to the Court’s discretion whether to accept the statement or not.

51. Section 102 of the DC Act states,

102. Statements of witnesses dead, etc.

Where a person has been committed for trial or sentence for an offence all statements tendered in evidence to the Magistrate constituting the Court may, with the consent of the National Court, be taken without further proof as evidence on the trial, whether for that offence or for any other offence arising out of the transaction or set of circumstances as that offence on proof—

(a) that the witness who made a statement is—

(i) dead or insane; or

(ii) so ill as not to be able to travel; or

(iii) kept out of the way by means of the procurement of the accused or on his behalf; or

(iv) a person registered under the Medical Registration Act (Chapter 398); or

(b) either by a certificate purporting to be signed by the Court or by one of the Magistrates to whom the statement was tendered, or by the oath of a credible witness—that the statement was served on the accused or his legal representative.

(Bold lettering & underlining are mine)

52. The National Court’s power to accept statement of a dead witness is discretionary. The 2 prerequisites required by the Court in its consideration under statute or section 102, in my view, are (i), confirmation that the deceased statement was part of the Court depositions that had been before and considered, by the Committal Court, and (ii), proof that the person is dead. I note from perusing the transcripts of proceeding that these requirements had been met by the State before the trial Court. The trial Court did consider the submissions of both counsel before it exercised its discretion and accepted Exhibit A to form part of the State’s evidence. The transcripts of proceeding show that the trial Judge had noted the objections before he exercised his discretion under s 102(a)(i) of the DC Act. The statement by the trial Judge at page 5 of his written decision that there was consent appears erroneous to what had actually transpired at the trial.

53. But the error, in my view, is of no consequence to the trial Judge’s actual ruling in accepting Exhibit A. So, at this juncture, I am satisfied that Exhibit A was duly tendered in as part of the State’s evidence before the trial Court.

54. The appellant made reference to the case State v. John Bill White (No. 1) (1996) N1441. I have considered the case. It is, in my view, of no relevance or similarity to the present case. That was a case where Her Honour Justice Doherty was considering whether to accept consented statements from witnesses who were not dead but who were alive and who were readily available to testify but had not been called or summoned. Her Honour ruled against exercising her discretion, and in her exact words, said, I consider that the witnesses should be called and if neither the State nor the Defence are willing to call them I direct they be brought before the court so that their evidence can be presented and that they be cross examined in the manner long accepted by our courts. In the present case, the complainant was dead and was unable to appear to give evidence. Upon proof of his death and confirmation that the deposition had been before the Committal Court, the trial Judge was at liberty to and had exercised his discretion and had accepted Exhibit A to form part of the State’s evidence. As I have stated above, I see no error there.

55. The second main arguments raised by the appellant under the first issue are as follows: whether his Honour did not caution himself in regard to Exhibit A; whether no regard was given to the fact that Exhibit A was an untested evidence; whether His Honour should have stated what weight had been given before he arrived at his decision on conviction on all the 3 counts of misappropriation.

56. I ask myself this. Is the requirement by the trial Jude to caution himself mandatory? To answer that, I refer to s. 37(4)(f) of the Constitution. It reads, and I quote:

37. Protection of the law.

(1) Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

......

(4) A person charged with an offence—

......

(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.

57. Justice Ipang in State v. Thomas Abaua (No. 1) (2012) N4656, stated, and I quote in part:

14. The file was served on the accused and the proof of service was filed. Accused was served on the 20th April, 2010 and proof of service filed on the 22nd of April, 2010. Deceased statement dated 7th of November, 2009 was tendered through witness Georgina and was marked as Exhibit G. This statement was tendered pursuant to s.102 of the District Courts Act. The conditions precedent set out in s.102 has been proven. I am mindful and have cautioned myself of the warning as stated in R v Henriques (1991) 93 Cr App R 237 and at p242 and as re-stated in Fred Bukoya v The State (2007) SC 887. The warning is that statement of deceased tendered by consent from the defence counsel has not been tested in cross examination and so due consideration be given when

evaluating its reliability.

(Underlining is mine)

58. This Court in Fred Bukoya v The State (2007) SC 887, I believe summarizes well the role of a trial Judge, that is, when he or she considering an untested statement like that of deceased person that is tendered through section 102 of the DC Act. The Court stated at paragraph 26:

26. In our view, in a criminal trial the following statement in R v Henriques (1991) 93 Cr App R 237, 242 concerning the requirement of warning the jury, when a deposition is admitted, is just as applicable to a judge sitting as the tribunal of fact:

“when a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the Deponent nor of hearing his evidence tested in cross examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffith said in Scott v Barns [1989] 89 Cr App r 153 at 161:

‘in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross examination.’

59. In conclusion, the Supreme Court Fred Bukoya v The State (supra) held, amongst others, and I quote:

4. Where a deposition is admitted by consent or pursuant to statute the judge should warn himself of the difficulties posed by accepting evidence from persons whose credibility cannot be tested, in particular with respect to any point where the untested deposition is in conflict with oral evidence tested by cross examination.

60. So, the questions that I have are as follows. Did the trial Judge caution or warn himself of the dangers of relying on the untested evidence namely Exhibit A in his deliberation on conviction, that is, after he excepted Exhibit A into evidence? Did he indicate what weight he gave or would give to Exhibit A in his reasons? I refer to the trial Court’s written decision on verdict. It begins at page 437 to 446 of the AB. Page 11 of the judgment was missing from the AB, and I note that, with leave of the Court, it was tendered at the hearing of the appeal.

61. With respect, I note that the trial Judge did not warn himself, after he accepted the evidence of the deceased, of the dangers of dealing with untested evidence. It is not shown in his written judgment. In not doing so, it is my view that the trial Judge has erred. The error, in my view, affects the entire evidence of the prosecution. Based on the primary facts, the complainant and the appellant were the only 2 persons who were involved in the various transactions where based upon which the appellant was charged, convicted and sentenced. And the contested facts in the Court below were mainly the words of the complainant, which were contained in the statement that had been tendered as Exhibit A, against the sworn evidence of the appellant. There is also no mention by the trial Judge of what weight he was going to or had given to Exhibit A, in his decision. However and in my view, issues that relate to weighing of evidence, corroboration or inconsistencies, are all secondary to this fundamental requirement, which is, that a primary judge must first of all caution or warn himself or herself after having accepted a deposition or statement under s. 102 whether it be by consent or otherwise, of the dangers of relying on untested evidence. Only when the warning is given can the trial Judge proceed to weigh out the evidence in totality or proceed to consider the other issues. The warning requirement, in my view, is mandatory in view of the requirements stated under s. 37(4)(f) of the Constitution which is also captured by this Court’s ruling in Fred Bukoya v The State (supra). Section 37(4)(f) of the Constitution is paramount and must be observe.

62. In summary, without the trial Judge cautioning himself, it is not unreasonable to assume that the appellant’s right to the full protection of the law which is bestowed to him under the Constitution namely s 37(4)(f) was or may have been breached or compromised. It would therefore and in my view, be wrong, unjust or unfair not to uphold the appeal on this ground alone.

63. I will therefore uphold ground 4 of the appeal.

ELEMENTS OF MISAPPROPRIATION – ESTABLISHING EACH OF THE ELEMENTS.

64. In light of my findings in regard to ground 4 of the appeal, it is not necessary to address the issue of hearsay.

65. That said, I wish to make some remarks.

66. The trial Judge’s written decision commences at page 437 of the AB. The appellant complains that the trial Judge did not set out the elements of the offence, misappropriation, under s 383A(1)(a) of the CC Act (the offence). He also complains that the trial Judge did not establish each of the elements of the offence in his final decision on all the 3 counts. As such, he says the trial Judge erred. The respondent submits otherwise.

67. The appellant was arraigned and convicted under s. 383A(1)(a) of the CC Act. It reads, A person who dishonestly applies to his own use or to the use of another person ... property belonging to another ... is guilty of the crime of misappropriation of property.

68. The elements of the offence, reading from the provision, are, (i). a person, (ii.) who dishonestly, (iii), applies property, (iv), that belongs to other person(s) and (v), either for his own use or for the use of other person(s). If the State establishes all these elements beyond reasonable doubt, then an accused person charged with the offence would be found guilty by the National Court. See also case: Havila Kavo v The State (2015) SC1450.

69. Having perused the trial Judge’s decision, I observe that His Honour did set out section 383A(1)(a) in his written decision. It is therefore arguable whether that would be regarded as sufficient identification or setting out of the elements of the offence, misappropriation. However, I also observe that there was no specific findings on each of the elements of the offence for each of the 3 counts the appellant had been charged with under s 383A1(a) of the CC Act.

SUMMARY

70. In summary and for the reasons stated, I uphold ground 4 of the appeal.

RELIEF

71. I refer to the AB. Page 7 line 20 contains the relief that is being sought. It reads in part:

1. That the Appeal be upheld.
2. That the National Court Convictions of 30^th July, 2018 be quashed.
3. In lieu of the convictions the Appellant be acquitted and a verdict of not guilty be entered on each count.
   

72. Sections 23(1)(2) & (3) and 28 of the SC Act are relevant for this purpose. They read in part:

24. Determination of appeals in ordinary cases.
    

(1) 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; or

(b) the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

(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.

(3) If the Supreme Court allows an appeal against conviction, it shall, subject to this Act, quash the conviction and direct a verdict of not guilty be entered.
...........

28. New trial.

(1) If on an appeal against conviction, the Supreme Court thinks that—

(a) a miscarriage of justice has occurred; and

(b) having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order for a new trial rather than by any other order that the Court has power to make,

the Court may, of its own motion or on the application of the appellant, order a new trial in such manner as it thinks proper.

(2) Where a new trial is ordered, the Supreme Court may make such order as it thinks proper for the safe custody of the appellant or for admitting him to bail.

73. In summary, I will grant the appeal. I do so based on s. 23(1)(a), that is, the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. The trial Judge had Exhibit A before him for consideration. He exercised his discretion and accepted the said exhibit, which I find to be proper exercise of his discretionary powers. However, before he began to consider all the evidence that were before him, the trial Judge did not caution or warn himself of the dangers that are associated with the use of or reliance of Exhibit A, that is, the fact that the statement was from the material deceased witness which had been admitted under section 102 of the DC Act and which had remained untested before him.

74. I am satisfied, as a result, that miscarriage of justice has occurred against the appellant. Further, I am also satisfied that the said miscarriage of justice, which consisted of an irregularity, would be more adequately remedied by an order for a new trial. I will exercise my power, not as per the request sought by the appellant, but pursuant to s. 28(1) of the SC Act.

75. Consequently, I will quash the conviction order made by the Court on 31 July 2018. The sentence that followed conviction will also be set aside. The matter shall be remitted to the National Court to be trialled before a different Judge. The appellant’s bail money, and the terms and conditions of his bail, shall remain. His bail shall be reviewed when the matter first returns before the National Court.

ORDERS

76. I make the following orders:

1. The appeal is allowed.
   
2. The appellant’s guilty verdict and sentences on all 3 counts of misappropriation under s. 383A(1)(a) of the Criminal Code Act Chapter No. 262, are set aside, and a verdict of not guilty is entered.
   
3. The appellant’s conviction is quashed and the matter shall return before the National Court for a new trial before a different Judge, pursuant to s. 28 of the Supreme Court Act Chapter No. 37.
   
4. The appellant’s bail is extended and shall be reviewed at the first mention of the matter before the National Court.
   

FINAL ORDER

77. The Order of the Court is the appeal is dismissed by majority decision.
_____________________________________________________________
Haiara’s Legal Practice: Lawyer for Appellant
Public Prosecutor: Lawyer for Respondent