Unreported National Court Decisions
N468
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
CLEMENT ULA OF IABON, E.S.P.
Wewak
Kaputin J
6 April 1984
9-13 April 1984
17 April 1984
JUDGMENT
KAPUTIN J:  The accused stands trial upon indictment of a charge that he between the 1st day of March, 1982 and the 31st day of August 1982, at Ama in Papua New Guinea while being employed in the Public Service of Papua New Guinea dishonestly applied to his own use a sum of money, namely one thousand three hundred and eighteen kina (K1,318.00) the property of the State. A person who is found guilty of this offence is guilty of misappropriation of property. Property includes money etcetera. The charge is laid under s.395A(1)(a) of the Criminal Code (Misappropriation of Property) Act No. 10 of 1981, which section reads:
“395A. 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; or
(b)      property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,
is guilty of the crime of misappropriation of property.
“(2)    An offender guilty of the crime of misappropriation of property is liable to imprisonment for 5 years except in any of the following cases when he is liable to imprisonment for 10 years:
(a)      where the offender is a director of a company and the property dishonestly applied is company property;
(b)      where the offender is an employee and the property dishonestly applied is the property of his employer;
(c)      where the property dishonestly applied was subject to a trust, direction or condition;
(d)      where the property dishonestly applied is of a value of K2 000 or upwards.
“(3)    For the purposes of this section:
(a)      property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property
(b)      a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;
(c)      a person’s application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;
(d)      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.”
The accused was a senior public servant attached to the Department of Provincial Affairs in East Sepik Province. He was the O.I.C. of the Ama outstation in the Ambunti Sub-District. His responsibilities were mainly administrative. However, as a matter of administration the Department of East Sepik operates cash offices at outstations and one of the cash offices was at Ama. As a matter of practice the O.I.C. acts as the cashier, in other words he has the responsibility of running the cash office because as O.I.C. he is in charge of everything there. In this case it was the accused who was running the cash office. The cash office has a station imprest advance to operate on. The purpose of the cash office is for the headquarters to channel money through it mainly to finance projects in the rural areas and to pay Government employees who work there, and to pay casual labourers recruited by the O.I.C. either to work on new projects or to do maintenance jobs. The accused is alleged to have misappropriated the sum of K1,318.00 which was supposed to be for labourers’ wages.
The State called some thirteen witnesses to give sworn evidence for its case. The accused simply exercised his right of silence and decided not to give or call evidence on his case, since it is up to the prosecution to prove its case. The defence apparently is that the allegation is not true and that the State has not proved its case beyond reasonable doubt.
There are four main witnesses in the State’s case. They are Bela Seiloni, John Sombukoi, Martin Viambu and Womola Winarang. Seiloni, Viambu and Winarang have worked as O.I.C. of outstations, sub-districts and at district level at different times in their careers as “Kiaps” in the E.S.P.. They have had considerable experience in the types of work involved, the problems faced, the locality and accessibility or otherwise of the areas, the nature of the people and their villages and so forth. John Sombukoi is the O.I.C. of Finance with B.M.S. at the Provincial Headquarters in Wewak and his responsibility of service covered the outstations’ cash offices. He has considerable experience in this field. I am fortunate to have these men testify in this trial as it makes it easier for me to follow what appears to be a very complex case indeed. There could be no better qualified men than these witnesses. It is a pity though that the accused was one of their rank in this Province. True the question of the witnesses’ credibility is another matter, as opposed to the substance of their evidence. However, I have no hesitation in holding that they appeared to be all credible witnesses.
Bela Seiloni is the Acting Assistant Secretary of the Division of Provincial Affairs, based at the Provincial Headquarters in Wewak. He was responsible for the four districts and the outstations including Ama. He had just taken up this position at the relevant time when this alleged offence occurred. The accused however, had held the position of O.I.C. at Ama for some time before Seiloni became the Acting Assistant Secretary. Previously Seiloni had been O.I.C. at Ambunti sub-district, whose administrative area and responsibilities covers Ama outstation. He explains the administrative procedures between him and the outstations including Ama thus: before any work, including maintenance work, has to be done at Ama the O.I.C. there has to obtain his approval first, as he is the only person to approve such request and as he is the only financial delegate to commit funds for any work to be done. The procedure involved is that the O.I.C. recruits labourers and prepares vouchers with a list of the names of labourers and the amount of money he is to expend on wages. This is sent to Seiloni’s office for his approval. Once approved the O.I.C. then goes ahead with the work to be done. In this case the period we are talking about is between the 1st March, 1982 and the 31st August, 1982. Before this period or sometime in the earlier part of it, the accused had gone to see Seiloni seeking approval for some maintenance to be done on the Ama airstrip. Seiloni had refused such a request on the grounds that there was no money available for it. The accused returned to Ama and from there called Seiloni’s clerks again to see if Seiloni could change his stand and approve his request, but Seiloni again refused it. The accused’s insistence on approval has some significance. It was an attempt to cover up somehow his alleged criminal purpose.
Anyway after that vouchers 22, 23, 24 and 25 still came into existence, together with their corresponding wages sheets, all contained in Exhibit A1 - 8. Voucher 22 was for K340, voucher 23 was was for K360, voucher 24 was for K380, and voucher 25 was for K338. totalling K1,318 which the accused claimed to have been paid out to the labourers whose names appeared on the vouchers for the alleged maintenance work they had done on the airstrip. This is the total sum of course, which is alleged to have been stolen by the accused. Seiloni and his officers were not aware of these vouchers, or of any authority for the expenditure of such money. In voucher 22 the accused had signed as paying officer and Constable Lasarus Maseka as witnessing the payments to the labourers named in the voucher. However, in vouchers 23 to 25 Maseka only signed as a witness but not the accused who should have signed them as paying officer. They were left blank. He had told the police in his record of interview that he had forgotten to sign them. Maseka who also gave evidence in this trial, admitted that he had in fact signed the vouchers without the people named in them being present. He had in fact, breached what was required of him as a witness. However, as the accused was the O.I.C. under whom he was working he felt obliged to sign the documents. The purpose of the vouchers being signed without the presence of those to be paid was not known. The. accused had simply come to his office which was a short distance away from his own, and handed him the documents to sign, which he did.
As far as the wages sheets (Exhibit A5 - 8) are concerned, to which the vouchers should correspond, they must be signed by three people, the financial delegate, who should be Bela Seiloni, the paying officer who would be the accused, and a witness. Seiloni had not signed any of the wages sheets as financial delegate, instead the accused had signed his own name as financial delegate, in the column headed “financial delegate”. His own signature also appeared as the paying officer, and Maseka had signed as a witness.
Also the vouchers indicated that the period in which the labourers had done maintenance work on the airstrip was between 1.3.82 and 30.4.82. A total of 71 casual labourers appeared on the vouchers as having worked. However on the evidence of Seiloni, Viambu and Vinarang who are equally familiar with the Ama area and the villages surrounding it, which were mainly just hamlets and scattered over long distances, and not that many people could be recruited at a time, let alone the fact that only about two or three families could be found in one hamlet, the chances of getting 71 workers at a time could not possibly be true. I believe this.
Further it was a normal procedure as Seiloni said, that if upgrading or any other necessary work was to be carried out on the airstrip the recommendation would have to come from an inspector of the Civil Aviation Department, and made to the Secretary who was Seiloni. Seiloni had not known of any such recommendation, for his approval. The accused himself knew about this line of authority very well. This aspect is quite important too in that the accused had claimed that some pilots had intimated to him that some special work on the airstrip had to be done, which cannot be the truth.
The evidence of John Sombukoi becomes relevant here. He is the O.I.C. of Finance with B.M.S. at the headquarters in Wewak. His office is responsible for servicing the districts and outstations’ cash offices and other financial matters. The system that the O.I.C. at Ama follows is that once the Assistant Secretary Seiloni has approved a request for expenditure of funds and also signs the required documents, the O.I.C. then withdraws the money from the station’s imprest advances at the cash office and pays it over to the workers. Whatever money is paid out the O.I.C. then sends in the vouchers and wages sheets to finance with B.M.S. at Wewak for the exact amount to be reimbursed to Ama cash office so that the station imprest advance remains the same all the time. By letter dated 17th August 1982 to the Assistant Secretary of the Division of Provincial Affairs, Seiloni, the accused said that he had paid out the amount of K1,318 to the labourers as they were insisting on their payments for the work they had done. This of course was done without the authority of Seiloni. In any event whether he had in fact paid the money and for what kind of work done, and who the labourers were, raises questions of doubt, which is the subject of this charge.
Anyway, about the 21st or 22nd August, 1982 Wewak B.M.S. Finance received from the accused the relevant vouchers and wages sheets (Exhibit A1-8) plus a number of other vouchers for reimbursement. The vouchers and wages sheets were processed on 24th August, and the Ama cash office was reimbursed for K1,338.46. The amount of K1,318 was included in that amount. The accused’s conduct was immediately discovered and an audit was carried out immediately on 24th to 26th November 1982, under the supervision of Sombukoi. As a result a deficiency of the relevant amount was found. The cash office was then ordered to be closed.
Next, the evidence of Viambu and Vinarang becomes relevant in this regard. The accused had also claimed in his record of interview that these two previous O.I.C.’s at Ama, especially Vinarang, had not paid some labourers who had worked there during his time, and that part of the money which was reimbursed was money that he had paid to those unpaid labourers. Vinarang admitted that he had not paid some labourers before he left for studies at the Administrative College in Port Moresby. However, he explained that this was due to the delay to the last quarter payments of that year 1981, not arriving in time for him to pay the labourers. The money finally came. He had paid most of the labourers. However, he could not pay them all because his time to leave arrived and the unpaid labourers had not received the message to come and collect their pay. So what Vinarang did was he locked up all their pay packets in the cash office safe and in his written brief of handover to the accused Clement Ula who succeeded him, explained in detail the money that had to be paid to the unpaid labourers. He had also explained all this verbally to the accused. I believe Vinarang’s evidence and why the accused had to use this incident as a cover-up is quite obvious. At first the accused was saying that the missing money was payments in regard to the relevant vouchers, about maintenance work that had been done during his own time. Then he was pointing at something else which has been uncovered by the evidence of Vinarang. All this tends to create doubt of the credibility of the accused. Vinarang had only been O.I.C. at Ama for a short time.
We now come to the evidence of Martin Viambu. He was O.I.C. at Ama from 1980 to 1981. Vinarang took over from him towards the end of 1981. Viambu’s evidence more or less confirms the evidence of Sailoni and Vinarang as to the line of authority, the financial procedures followed, the problems faced in recruiting casual labourers and so forth; but the most important part of his evidence is that the required extension work and maintenance work to be done on the airstrip had already been done during his term there. Also that he could not understand why the accused claimed to have done the extension work. The airstrip was also fenced by Viambu. When the accused was being investigated, Viambu was recalled to Ama Station in January 1983 to also assist in the investigation. He confirmed that the extension and maintenance works on the airstrip that he had done had remained the same. Nothing further had been done in this regard, as the accused claimed. The evidence of Viambu therefore, strengthens the State’s case further.
Constable Maseka’s evidence is relevant in so far as to confirm the irregularities with regard to the practice of recruitment and payment of casual labourers, in order to conceal what he was doing. Although he was a policeman who should have some sense to question what the accused as O.I.C. was doing, I find however, that he was an old-timer policeman who was very slow in thinking and was the type of person who would do anything a superior told him to do. The accused therefore, was taking advantage of this man’s ignorance without him realising what the accused was getting out of it.
The evidence of the villagers who had worked as casual labourers at one time or another, is material as far as establishing that some had worked but were never paid. The others whose names were included in the vouchers to have done the maintenance work, had not. actually worked.
Their names had been included as a cover-up stating that they were the ones who had done the work. These witnesses although very, very unsophisticated, had at least a certain amount of sense to know what they were talking about. However, I could not accept the evidence of one or two witnesses as they were just chattering away like parrots.
I now turn to the accused’s own record of interview with the police. It is full of inconsistencies and when one looks at it against the highly credible State’s evidence called at the trial, it should bring the accused’s creditworthiness to the bottom of the barrel. I will only accept those parts of it that would be consistent with the State’s case. From the record of interview I quote:
“Q96.  What is the vote number for Maintenance of Ama Strip?
Ans.    300-18-1-3.
Q97    Who is in Authority of Funds allocated to this Vote number?
Ans.    Mr Bela Seiloni who is now acting Secretary to the Division of Provincial Affairs.
Q98    Who do you have to get authority from before funds under this vote is used?
Ans.    From assistant secretary Mr Bela Seiloni who is now acting in that position.
Q99    Did you get prior approval from him before funds under this vote was used for Airstrip Maintenance at Ama?
Ans.    No.
Q100   Do you agree with me that he had no knowledge of the amount of K1,418.00 which was used on the Maintenance of Ama Airstrip after these four vouchers arrived at Wewak, after all the payments were made to contract labourers?
Ans.    Yes.”
The rest of the statement in the interview has been shown by the State’s own evidence to be false.
Now, as far as the defence’s case is concerned the accused decided not to give evidence or even to make a statement from the dock or call evidence, he simply exercised his right of silence. Numerous common law authorities have elucidated upon this point and I need not go into the entire history of it. It would only be sufficient to state this: the defence’s failure to give evidence ought never to convert insufficient into prima facie evidence. However, the defence failure to give evidence may render prima facie evidence conclusive in the opinion of tribunal of fact. I am reminded by the warning expressed by Cockburn C.J. in McQueen v. Great Western Railway Company (1875) L.R. 10 Q.B.569 at p.574, where His Honour said:
“If a prima facie case is made out, capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence, then the inference fairly arises, as a matter of inference for the jury and not as a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it were adduced it would not disprove the prime facie case. But that always presupposes that a prima facie case has been established; and unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call witnesses who might have been called on the part of the defendants amounts to nothing.”
Although this was said in relation to a civil matter, it would certainly be more relevant in a criminal prosecution.
Expressing the same thing in another way Rich J. in The Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39 at p.49 said thus:
“But when circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold.”
In the instant trial the case against the accused is so overwhelming that the fact that no explanation or answer is forthcoming as might be expected if the truth were consistent with innocence, is a matter which the court as tribunal of fact should properly consider. I do so here.
I would find, therefore, that the evidence of the State witnesses which I have canvassed establishes the facts of this case. What the accused was doing and saying were merely aimed as a design to cover up his dishonest misappropriation of public money. Based upon the reasons which I have stated, I am satisfied that the State has proved its case beyond reasonable doubt, that the accused committed the crime as charged. I find him guilty of the charge and convict him accordingly.
Lawyer for the State: Public Prosecutor, L. Gavara-Nanu
Counsel: Mr I. Brown
Lawyer for the Defence: Public Solicitor, N. Kirriwom
Counsel: Mr. S. Liosi