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Gitua v Weleilakeba [2022] PGDC 103; DC9027 (20 October 2022)

DC9027
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 150-152 OF 2022
CB NO 205 OF 2022

BETWEEN:

TIMOTHY GITUA
[Informant]

AND:
SITIVENI WELEILAKEBA
[Defendant]

Waigani: Paul Puri Nii

20^th October 2022

COMMITTAL PROCEEDINGS: Charges-Dishonestly apply -Section 383A (1) (a), Forgery-Section 462 and Fraudulently Uttering-Section 463(2) -of the Criminal Code Act. Establishment of Committal jurisdiction-creating of Evidence-Linking the elements of the offence in the Police Hand-up-brief to the allegations.

PRACTICE AND PROCEDURE: Acceptable proficiency for prima facie Case-Elements of the charge of Attempted Murder–Elements are Established-Evidence is fitting to commit the Defendant for the charge to stand trial in the National Court. Defendant is committed.

PNG Cases cited:

Police –v- Kimisopa [2021] PGDC 76; DC6031 (30 June 2021)
Yarume –v- Euga [1996] PGNC 24;N1476 (6 September 1996)
Police- v- Koka [2021] PGDC 53; DC6010
Richard Liri –v- the State (2006) N3110
State –v- Kai Wabu [1994] PNGLR 498

Overseas cases cited:

N/A

References

Legislation
Criminal Code Act
District Court Act 1963, Chapter 40
Income Tax Act 1953
Income Tax (Amendment) 2001
Superannuation (General Provisions) Act

Counsel
Police Prosecutor: Chris Iga For the Informant
Wariniki Lawyers: Philip Wariniki For the Defendant

COMMITTAL DECISION

20^th October 2022

INTRODUCTION

NII, P. Paul Magistrate. Court’s decision on whether a prima facie case is documented inside the association of Section 95 of the District Court Act. The decision is made after state evidence and Defense cases are understandingly distinguished. On 3^rd August 2022, defense opposed his submission challenging the ability of state evidence submitted to the court on 2^nd June 2022. Thus, at current is my ruling on the conforming opinions received.

CHARGES

1. The suspect is charged with Dishonestly Apply (Misappropriation) under Section 383A, Forgery under Section 462(1) and Uttering under Section 463(2) of the Criminal Code Act. The consequent are the concentration charges:
   

“[i]383A. Misappropriation of property.

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

(a) property belonging to another is guilty of the crime of misappropriation of property.”

“462. Forgery in general: punishment in special cases.

(1) A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.

Penalty: If no other punishment is provided—imprisonment for a term not exceeding three years”.

“463. Uttering false documents and counterfeit seals.

(2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question”.

SUMMARY OF FACTS

2. Defendant is aged 65 years old and is from Qeleivi village in Fiji who was at the time of the allegation was the Statutory Manager of Comrade Trustee Services Limited (SCTL), a trustee of the Defense Force Retirement Benefit Fund (DFRBT). He was appointed to the chair through a contract of employment between himself and Bank of PNG.
   
3. Police allege that in June 2021 when the Defendant was the statutory manager, the Fiji tax office in Fiji raised an issue regarding the Defendant’s tax status and thus in answer to that he caused a pay slip to be created by the finance manager of CTSL for himself indicating that he was receiving pay as an employee of CTSL and was subsequently paying taxes to the PNG Government through IRC. Police said the defendant had also written a letter to the PNG tax office which enclosed misleading information about his tax status in PNG.
   
4. Police further says defendant did not pay tax for his salaries and hence in December 2021, the Defendant approved the release of K665, 482.45, which was paid directly from CTSL’s management account to the IRC for payment of his personal income tax liability, the amount contained in the tax payment was for the period from January 2021 to November 2021.
   
5. Therefore, police alleged that the Defendant committed the offence of forgery and uttering when he caused the pay slip to be created and the cover letter to be written to the Fiji tax office. Both documents were created to mislead the Fiji tax office and given the impression that he was an employee of CTSL and hence his employer paid taxes to the PNG IRC. Finally, it was alleged that the defendant committed the offence of Misappropriation when he caused the amount of K665, 482.45 to be paid directly to the IRC from the CTSL management account to pay for his personal income tax liability. The amount should have been paid by the defendant or deducted from his salaries and not paid separately by CTSL.
   

ISSUE

6. Whether evidence in the Police file is sufficient to make a prima facie case against the defendant to commit him.
   

THE LAW

7. The court is indebted under Section 95 of the District Court Act to decide on the police evidence put before the court.
   

Section 95 of the District Court Act 1963

“95. Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division”

8. With unchanging to the capability the court obligates, evidence in the police file shall be assessed to establish whether it is sufficient to make a case against the defendant for the charges of Dishonestly Apply(Misappropriation) under Section 383A(1)(a) of the Criminal Code Act, Forgery under Section 462(1) of the Criminal Code Act and Fraudulently Uttering under Section 462(2) of the Criminal Code Act.
   
9. My power under Section 95 of the District Court Act is elaborated in the case of Police v Kimisopa [2021] PGDC 76; DC6031. The court will measure police evidence and select on the proficiency of the evidence. Furthermore, the preceding point is reinforced in Yarume v Euga [1996] PGNC 24;N1476. The court articulates that the determination of committal court is to measure police evidence and identify whether the evidence assessed is sufficient by sustaining the elements of the charge.
   

ELEMENTS OF THE OFFENCE

1. The elements of Dishonestly Apply(Misappropriation) under Section 383A(1)(a) of the Criminal Code Act:
   

a) A person

b) who dishonestly applies

c) to his own use or

d) to the use of another person

e) property belonging to another

2. The elements of Forgery under Section 462(1) of the Criminal Code Act
   

a) A person

b) who forges any document,

c) writing or seal

100. The elements of Fraudulently Uttering under Section 463(2) of the Criminal Code Act
     

a) A person

b) who knowingly and fraudulently

c) utters a false document or

d) writing, or a counterfeit seal

EVIDENCE

10. In court in Police v Koka [2021] PGDC 53; DC6010, it was decided that a Charge is only a mere accusation unless supported by evidence. (Emphasis added from the judgment) ....
    

“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up”.

11. Police evidence gathered by the Police informant is in the Police Brief tendered to court dated 7^nd May 2022, which should appropriately display the fundamentals (elements) of the respective charges.
    

PRELIMINARY APPLICATION

12. On the date of hearing, police filed an application to amend the information by changing the provision of Section 463(1)(a) to 463(2) of the Criminal Code Act. Defence objected to the application that the grant of the application would jeopardise the defendant’s rights. However, the application was granted since the substantive charge remains the same except the sub provisions and thus the defendant's rights would not be jeopardized.
    

PROSECUTION CASE

13. On 09^th August 2022, Police Prosecutor Chris Iga momentarily objected to the defense submission in reply to the police case by sustaining the Police evidence. Defendant through his submission filed on 18 July 2022 argues that the police evidence is all in order and objected to the other grounds raised by defense counsel. I will for my judgment, shall understandably assess all the statements in the police file making the police evidence with comparison to the defense case and come up with a ruling.
    

Witness list and their Evidence

DEFENSE CASE

14. Defendant through his submission filed on 16^th June 2022 argued on a number of points, all reflecting on the defendant’s interest and they are as follows:
    
    1. Firstly, the signatures of witness Charlie Gilichibi appearing on the pages containing the witness statements are different across and thus argued there is lack of evidence in the statement to satisfy the court in its enquiry under Section 94C (2) of the District Court Act that this witness read and understood his own statement. Defense funded on the principles emanated from the cases of Richard Liri v the State (2006) N3110 and emphasized the importance of witnesses understanding their own statements before signing on the witness declarations.
       
    2. Secondly, the same arguments raised by witness Charles Gilichibi is adapted in the witness statement of Mathew Kamaka that there is no evidence to satisfy the court that this witness had understood his own statement before signing.
       
    100. Thirdly, the defense argues that clause 6 of the TOE where it partly reads the fees of AUD30,000 per month will be billed in arrears and paid without dedication by the fund in kina equivalent to the defendant’s nominated bank account needs clarification from clause 7 of the TOE. Defendant says the issue on tax is not his obligation and strongly argues that it was his employer’s job to make necessary arrangements for the tax deductions.
         
    4. Fourthly, the defendant though his Lawyer argued that the Complainant did not disclose his role and relationship with the Bank of PNG and further argued that the Complainant does not seem to understand the Defendant’s tax arrangements especially where the terms of contracts were concerned and BPNG’s process. Moreover, defense argued that Mr Mathew Kamaka is former manager finance to KTSL but he is not currently employed by CTSL and thus argued that whatever he stated in this statement is not sanctioned by CTSL and BPNG and thus could be dangerous and damaging. Defendant says it was the finance manager’s duty to ensure that the accused taxes were paid but the finance manager failed on his part. Defendant argues the finance manager failed to remit the accused’s tax to IRC and went on to say it was purely an administrative matter.
       
    5. Defendant also raises the issue of bad faith that there is a sense of jealousy within CSTL where certain employees had against the defendant. Defendant also argues that the allegations emanated from a commercial and contractual agreement that clearly should be addressed administratively and not through the criminal proceedings.
       
    6. Based on the above defendant strongly argued that there is no evidence to substantiate the charge of Misappropriation or dishonestly apply (383A(1)(a))[ii], Forgery(464(1))[iii] and Uttering(463(2))[iv] and thus submits for all the information carrying the charges to be dismissed and bail refunded.
       

CONSIDERATION OF EVIDENCE

15. The defendant entered into an agreement with the Bank of PNG effective on 25^th July 2019. Defendant was appointed as a Statutory Manager of Comrade Trustees Limited (“CSTL”) and his appointment was subsequently published in the National Gazette. The appointment was subsequently effected through a terms of engagement dated 31^st July 2022.
    
16. On the 25^th January 2022, the defendant was arrested and charged by police for not paying tax for his salaries of AUS 30,000 per month. Police had further alleged that the defendant went on and forged and uttered the IRC tax return forms to declare his tax which was illegal and inappropriate and not authorized by the laws of PNG.
    
17. However, the defendant on the other hand strongly argued that the defendant's actions were legal and thus the allegation was wrongly lodged in the criminal court, it should have been dealt administratively.
    

RULING

18. Defendant was legally involved by BPNG through a contract of engagement to provide service to CSTL. Defendant’s employment was finalized through a Terms of Engagement dated 31^st July 2019. Term No 6 of the terms of engagement on Compensation in part reads “the fees will be billed in arrears and paid without deductions by the fund in Kina equivalent into a bank account nominated by the defendant”. What that means was the defendant's gross pay will become the net without having his gross salaries taxed so by implication the defendant's pay was not taxed. The TOE does not make any clear points about the defendant’s income tax except that term No 6 provides that the defendant’s salaries will not be taxed. Moreover, Section 104 of the Superannuation (General Provisions) Act does not provide detailed explanations about the issue of tax other than the defendant's general conduct during the term of his employment with CSTL.
    
19. Since term 7 of the terms of engagement talks about “disputes” where it provides that the defendant’s agreement with BPNG be governed by the Laws of PNG and thus since Defendant is a National of Fiji, I will consider PNG Laws relevant to the issue so what does the tax laws of PNG say about a foreigner’s employment in PNG?
    
20. The Income Tax Act 1953 as amended to 2001 provides certain exemptions of official salaries. Section 19C[v] and 36[1] of the Act[2]as amended to 2001 delivers as shadows:
    

“19C. EXEMPTION OF NON PAPUA NEW GUINEA INCOME.

The income derived from a source or sources outside Papua New Guinea by a person who–

(a) is in Papua New Guinea solely to render assistance to a prescribed aid organization; and

(b) derives no remuneration for rendering that service; and

(c) (c) derives no income from a source in Papua New Guinea, is exempt from income tax.

36. EXEMPTION OF INCOME DERIVED BY NON-RESIDENT OUT OF PAPUA NEW GUINEA.

Income derived by a non-resident from sources wholly out of Papua New Guinea is exempt from income tax or salary or wages tax.”

21. Both provisions talk about incomes derived from sources out of PNG. Section 9C[vi] talks about exemption of non-Papua New Guinea income where the income is from a foreign jurisdiction. Moreover Section 36[vii] provides the same position as Section 9C[viii], however the exemptions provided under the laws does not include the defendant’s salary status where his source of income was not from another jurisdiction but within PNG which was paid by SCTL.
    

Arguments by defense

22. Defendant has raised a number of arguments in respect to the police evidence. Firstly, the defendant argued that the statements of the witnesses are defective as they do not conform with the prerequisite under Section 94(1A) and 94C(2)[ix]. I have carefully pursued the Statements of witness Charlie Gillichibi, Mathew Kamaka, Tom Milamila, veronica Douglas, Arua Naime, veronica Douglas, Helen Larsin and Timothy Gitua and noted that each witness had certified that his/her statement was true to the best of his/her knowledge and belief. He/she made it knowing that if it was tendered in evidence he/she would be liable to prosecution if he/she had knowingly stated anything that was false or misleading in any particular.
    
23. Therefore, with unfailing to the desires under Section 94(1A) and 94C(2) [x] and the philosophies in the case of State v Kai Wabu [1994] PNGLR 498, I am pleased the maker of each statement had read and understood their own statements before declaring it and thus the witness statements are all in order to be considered for my ruling.
    
24. Secondly, the defendant argued that it was not his responsibility to enquire on the issue of tax since it was his employer’s accountabilities. Defendant was engaged by the Bank of PNG to drive CTSL on a TOE. Defendant appears to be a person contracted to perform work for CTSL by BPNG and was remunerated by CSTL. Since the defendant is an independent contractor who was remunerated by CTSL and engaged by BPNG, it was the remunerated organization’s obligation to ensure the defendant's tax was paid. Defendant at the time of allegation was the Statutory Manager of CTSL and he was placed with a higher obligation within the organization he once controlled. Although the defendant argued that it was not his responsibility to enquire on tax, the defendant being a Statutory Manager was equally responsible for his own tax since the entity he was entrusted to execute his duties was the entity that paid for his salaries.
    
25. Thirdly, the defendant argued on the issues of bad faith and sense of jealousy within CSTL where certain employees had against the defendant and also it is an issue that could have been dealt with administratively. The opportunities were available but the Complainant decided to have the matter dealt with criminally rather than administratively and thus I am only obligated by Law under Section 95 of the DCA to decide on what is before me after evidence is presented and this I will do now. I do not have any powers to refer the matter to be dealt with administratively after when evidence is presented but to rule on the evidence in the police file. The issue of jealousy within CSTL is also raised but there is no evidence to substantiate this argument.
    
26. Finally, the defendant argued that the Complainant did not disclose his roles and relationship with BPNG. Evidence shows the defendant is not employed by BPNG but he is the CEO of CTSL. Since CTSL is the defendant’s salary paying entity in which the Complainant is the CEO he has a direct interest in the allegations.
    

Arguments by police

27. The arguments formulated by the police were basically objecting to the defense submission. Police maintained that the witness statements contained in the police file have all complied with the requirements under the district Court Act and moreover they argued that evidence in the PHUB satisfies the respective charges against the defendant.
    

The First charge on “Dishonestly apply (Misappropriating)”

28. Evidence provided to the court shows from the time the TOE was signed and salaries were paid to the defendant on his nominated bank account, tax was never an issue until on 26^th November 2021, the Bank of South Pacific raised issue on the defendant’s tax on his salaries after it was discovered that the defendant was sending sizeable amount of money overseas.
    
29. Therefore, the defendant being a foreigner (alien) (for tax purposes) must pay taxes on any income earned in PNG to the Internal Revenue Commission, unless the person can claim a tax treaty benefit to exempt tax. There is no tax treaty between PNG and Fiji and moreover Fiji is not characterized as a tax heaven country (tax will not be paid) which therefore means the defendant was to pay tax in his personal income instituted by his salaries.
    
30. Regardless of whom and which party the defendant had signed his employment agreement with, he was obligated to pay tax to the government of PNG though the IRC. Even though there were no tax obligations for the defendant to comply as specified on the TOE, pursuant to Term 8 of the Term of Engagement, any disputes on the TOE would be governed by the Laws of PNG and thus the Income Tax 1952 as amended to 2001 is now applicable here in the defendant’s case.
    
31. Defendant maintained at question 17 of his ROI that the amount of AUD30,000 per month was his net pay after tax but term 6 of the terms of engagement comprising the defendant’s commitment with BPNG says defendant’s salaries shall be paid without deductions. This means it is paid inclusive of tax.
    
32. Tax is deducted from the gross salaries, each time a person receives his salaries, tax is automatically deducted and made payable to IRC. However, evidence shows the defendant at the time when he received his first salaries which was a month after effecting his TOE dated 31^st July 2019, his cross salaries of AUD30,000 were not taxed. Evidence shows since then the defendant had been receiving tax free salaries until BSP and the Tax authorities in Fiji found out and raised the alarm.
    
33. Evidence shows that on 30^th November 2021, CTSL paid a total amount of K665, 482.45 to IRC as Tax for November 2021 which included the defendant’s tax component of the salaries he received without being taxed. It is not appropriate to pay separate money to IRC by CTSL for taxes when the initial salaries are not taxed, tax should be deducted from the salaries simultaneously when salaries are processed and not separate payment later.
    
34. Therefore, evidence shows defendant dishonestly applied to his own use money in the sum of K664, 482.45 the property of CTSL as his separate tax payment from his nontaxable salaries thereby breaching Section 383A(1)(a) of the Criminal Code Act and hence this charge is sustained.
    

The Second charge on “Forgery and Uttering”

35. Police evidence shows in June 2021, while the defendant was still the Statutory Manager of CTSL, the tax authorities in Fiji had raised issues pertaining to his salaries in PNG since he was sending money to Fiji. On the 16^th of August 2021, there is an evidence of a pay slip which police alleged that defendant caused the said pay slip to be caused by himself to be created by the Finance Manager for himself which shows that he was receiving salaries as an employee of CTSL and paying taxes to the government of PNG through the IRC. One 21^st July 2021, a letter was purportedly written to the Fiji tax office regarding his tax status in PNG.
    
36. Defendant in answer to question 25 of his ROT says he forced the Finance manager to prepare his pay slip and write the letter since that was his duty but the finance manager is saying the defendant forged everything. Since there is evidence of the pay slip and the letter containing the issue of tax, I will let the trial court decide on the authenticity of the documents when evidence is tested and therefore the charges of Forgery under Section 462(1) and Uttering under Section 463(2) are sustained.
    
37. My conclusion under Section 95(1) of the District Court Act is arrived at on a balance less than the criminal balance of proof. This conclusion is reached when evidence is only assessed. Thus there is prima facie evidence sustaining all the charges against the defendant.
    

CONCLUSION

38. I have read the police file, Defendant’s ROI and Defense submission and after going through each of them, I am content under Section 95(1) of the District Court Act, Police evidence has made out a prima facie case against the Defendant. Consequently, Police have delivered satisfactory evidence against the Defendant for the allegation of Dishonestly Apply(Misappropriation) under Section 383A(1)(a), Forgery under Section 462(1) and Fraudulently Uttering under Section 463(2) of the Criminal Code Act and thus indictments are sustained.
    

ORDERS

39. My formal orders:
    
    1. Evidence is sufficient to commit the Defendant for the charge of Dishonestly Apply(Misappropriation) under Section 383A(1)(a) of the Criminal Code Act.
       
    2. Evidence is sufficient to commit the Defendant for the charge of Forgery under Section 462(1) of the Criminal Code Act.
       
    100. Evidence is sufficient to commit the Defendant for the charge of Fraudulently Uttering under Section 463(2) of the Criminal Code Act.
         
    4. The three Information are sustained.
       
    5. Bail is extended.
       

Wariniki Lawyers For the defendant
Police Prosecutor For the State

.

[1] ibid
[2] Income Tax Act 1953



[i] Added by No. 10 of 1981, s1.
[ii] Criminal Code Act
[iii] Criminal Code Act
[iv] Criminal Code Act
[v] Income Tax Act 1953 as amended to 2001
[vi] Ibid
[vii] Ibid
[viii] ibid
[ix] District Court Act
[x] District Court Act