DC1053

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

Cr No, 33 of 2010

BETWEEN

STATE

V

PHILIP DEPIS
LENNIE BAROK
SAM YAKAM
Defendants.

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 Paul Kundi Rape [1976] PNGLR96

REFERENCE:
Nil

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

RULING ON COMMITTAL

1.	B. TASIKUL a/PM: The three defendants were jointly charge with two counts each. On first charge each and severally did dishonestly applied to the use of another person namely Nimamar Capital Limited property to wit, money in the sum of one hundred and fifty thousand kina property that is subject to a direction of twenty per cent royalty payment for funding of Nimarmar Rural Local Level Government community development programs and projects as agreed to in the Memorandum of Agreement between the developerLGL and Nimamar Rural Local Level Government.

2.	On the second charge did each and severally conspire with other person namely ward councilors, Paul Vulcan Tangir, Martin Zanayes, Francis Bek Arom, Stanley Tunut,Martin Kalayen and James Raki by diverting one hundred and fifty thousand being the twenty per cent component of the thirty per cent royalty funds meant for community development programs and project which were paid to Kina Securities Limited to buy shares with Airline PNG Limited thereby then to defraud the Nimamar Rural Local Level Government.

3.	This two charges are contravening Section 383A (1) (b) and Section 407 (1) (b) of Criminal Code Act respectively. 

4.	Having the benefit of examining the evidence and the submission submitted before me I now have to considered the evidence and decide whether there is sufficient evidence to commit each of the defendants on these two charges to stands trial in the National Court of Justice. 

5.	As I have quoted in my previous ruling on Mr. Vincent Ambias case it has now become law that in any case where the court on its merits decide that where there is no case to answers will apply the principle in the case of State V Paul Kundi Rape [1976]PNGLR 96

6.	The questions I now need to ask myself are; what are the evidence now before me, are they sufficient enough to lawfully convict the defendants as they stands?

7.	After examining the evidence adduced by the state it seems to me that the state is relying on documentary evidence. The state is alleging that the three defendants had conspired with others to defraud the Nimamar LLG. In that they have diverted funds which were meant for community projects to buying shares with PNG Airlines Company. Their action also amounts to misappropriation.

8.	There is no doubt that there is evidence from Mark Soipang, the Chairman of LMALA, and George Minjihau, the State Solicitor that according to the 50% royalty paid to the New Ireland Provincial Government, 30% is paid to NRLLG. Out of the 30%, 10% is long term investment for the future generation of Lihir islanders and 20% is for community development projects.

9.	It was therefore wrong to divert that 30% of that money to buy shares from PNG Airlines Limited. There are also evidence that the defendants were officers employed by the NLLG and the defendant Sam Yakam was the person who drawn a proposal submission for the purchase of the shares. There is evidence that this proposal submission came about as a result of some resolution passed by the Tumbawinlam Assembly.

10.	However, having said that the charge of misappropriation under section 384A(1)(b) of the Criminal Code Act ,in order for the defendants to be convicted there must be elements of dishonesty, applied to their own use or use of other person, the property belonging to other persons. 

11.	For the court to make a ruling on behalf of the State and make a finding of prima facie case on these charges of misappropriation and conspiracy it must be able to identify from the materials tendered all relevant and appropriate evidence sufficient enough to touch all important elements of the charge. One very important element of the charge misappropriation is that of dishonesty.

12.	The question I need to ask myself based on the evidence is that; are there any evidence to connect the defendants that they dishonestly applied the funds for their own use or use of other people. The defendants were employee of the NRLLG and they were carrying out their duty and responsibility as officers of the NRLLG.

13.	The decision to purchase shares was a decision passed by the members of the Tumbawinlam Assembly. There is no evidence before me that each of the defendants benefited from this money. It is my opinion that there is insufficient evidence to commit the defendants to stands trial on both charges of misappropriation and conspiracy. I therefore discharged each of them and ordered for their bail money is refunded.