DC1050

PAPUA NEW GUINEA
[In the District Court of Justice sitting in its criminal Jurisdiction]

Cr No, 33 of 2010

BETWEEN

STATE

V

PHILIP DEPIS
Defendant

LIHIR: B.TASIKUL
1st September, 2010

CRIMINAL LAW: No case submission- Misappropriation charge s.383 –Criminal Code Act-Prima-facie case ruling-No elements of intention prove-insufficient evidence-

CASES CITED:
State V Wanjil [1997] PNGLR64
State V Kakawi (200) N2229
State V Kindi Lawi [1987] PNGLR183
State V Paul Kundi Rape [1976] PNGLR96
Zanetti V Hill (1962)108CLR291

REFERENCE:
Nil

Appearing for the defendants: Mr. Kimbu of Kimbu & Associates Lawyers
Appearing for the Prosecution: Mr. Pare Kulap of Police Legal Section

RULING ON COMMITTAL

1.	B.TASIKUL a/PM: The defendant was arrested and charge for one count of dishonestly applied to the use of another person namely Kimbu Lawyers and Associates property namely Nimamar Development Authority cheque number 02457 valued at K100,000.00 belonging to Nimamar Rural Local Level Government.

2.	The states alleged that the defendant being the financial controller is not a section 32 Officer under the Public Financial Management Act to sign and approval such payment.

3.	As the matter came before me on committal proceeding I had the opportunity to review the evidence which was tendered by the prosecution in the hand up- brief. As mention on numerous cases the duty of the committal court is to scrutinize the evidence adduced by the state and form a view whether there is enough evidence to commit the defendant to stands trial in the National Court.

4.	 That's now lead me to the question of whether the evidence adduced by the State is sufficient enough for the defendant before me can be lawfully convicted should the matter is allowed to proceed on further?

5.	To answer that question I would like to adopt the view express by his honor Lenalia J in a case of State V Wanjil[1997]PNGL64 which he adopted in the case of Zanetti V Hill(1962)108CLR 438,

The question whether there is a case to answer, arising as it does at the end of the prosecution's evidence in Chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands - whether that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. 

6.	The defendant was charge under, Section 383A(1)(a) of the Criminal Code Act which reads:

1) A person who dishonestly applies to his own use or to the use of another person–

(a) property belonging to another; or

is guilty of the crime of misappropriation of property

7.	 There is no direct evidence that the defendant did misappropriate the money. However, evidence adduce by the state alleged that the defendant in his capacity as a Financial Controller was not duly appointed under the Public Finance Management Act. He does not have any power under section 32 of the Public Finance Management Act, therefore by authorizing any payment is in breach of the Act.

8.	As I have mention in my ruling in the case of Chris Mulas the only evidence that connect the defendant Mulas is letter sent to the defendant authorizing him to execute payment of the funds to Kimbu &Associate Lawyers. When the defendant received the letter he further sent a memo to Acting Manager seeking his endorsement and approval of the funds. 

9.	 I agreed with Mr. Kuiap in his submission who correctly pointed out that the money that was paid out were funds purposely for community and infrastructure development. I also agreed that Nikap Block Owners Association has no bidding agreement with the stake holders such as the State, Lmala, and the New Ireland Provincial Government and off course the Nimamar Rural Local Level Government. 

10.	However, as the counsel properly cited the case of Kindi Lawi V State and the State V Kakawi & ors(2002)unreported National Court Judgment N2229 where his honor Lenalia J alluded as follows:

 The term "dishonestly" as appearing in s. 383A of the Criminal Code relates to the State of mind of the person who misappropriates, or misapplies whatever property is the subject of the charge under consideration. It is a question of fact for the judge or tribunal to decide upon the evidence being put before it, 

11.	He further refer to the cases of State V Francis Natuwohala[1994]PNGLR291 in which states;

In order for the Court to determine dishonesty, it must look into the mind of the accused person and determine whether given the accused intelligence he would have appreciated if what he was doing was or amounted to dishonesty. 

12.	Given the evidence now before me, I have to ask myself this question, was the defendant acted dishonestly in approving funds for legal cost to Nakap Block Owners Association without the attachment of resolution 52 of 2009 by the Tumbawinlam Assembly.Futhermore being not an s.32 officer under the Public Financial Management Act was the defendant acted dishonestly?

13.	To answer that question I have extensively explore all the evidence before me and there is no evidence of complicity by the defendant. Whether or not he had the intention is a question of law. The court cannot infer in this circumstance without any further relevant evidence. One essential element of misappropriation is dishonesty.

14.	The defendant was acting on the instruction of the clerk of the Tumbawinlam Assembly. He was doing what he was instructed to do bearing in mind that the instruction was base on the resolution passed by the Assembly. 

15.	If the State is alleging that he was not an authorized officer under the Public Financial Management Act, then where is the evidence to connect him to misappropriation charges. There is no other relevant evidence to connect him to the charge. Therefore I find that there is no sufficient evidence to commit the defendant to stands trial. 

16.	I therefore ordered the defendant discharge and further order for the refund of his bail money.