N2213

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 845 of 2001

THE STATE

-V-

DOBI AO (N0.1)

WAIGANI: KANDAKASI, J.
2002: 3rd, 4th, 5th and 12th April

CRIMINAL LAW – PRACTICE & PROCEDURE – Listing of matters for trial – More than one accused person – One of them having difficulties with legal representation – Despite that matter fixed for trial and re-confirmed – On day of trial one of the accused not present with legal representative – Application made for adjournment – Application declined and trial of co-accused ordered to proceed – Once judicial time is allocated it must be used unless very good and convincing reason is provided – Lack of legal representation and one of the co-accused not ready for trial not good and convincing reason to adjourn.

CRIMINAL LAW – VERDICT – Multiple charges of misappropriation and one count of attempted misappropriation or in the alternative conspiracy to defraud the State – Most of the elements of the offence and facts not in issue – Whether accused personal cashed and applied proceeds to personal use only point in issue – State’s case circumstantial on the point in issue – Only logic and reasonable inference from accepted primary facts support an inference against the accused – Verdict of guilty on all except two counts returned – Criminal Code sections 383A (1)(b), (1)(a) and s. 4 and 407(1)(b).

Cases cited:
Pawa v. The State [1981] PNGLR 498 at 501.
The State v. Tom Norris [1981] PNGLR 493. 
Garitau & Rosanna Tau v. The State (1997) SC528.
The State v. Andrew Aisa Keake (N0.2) (27/02/01) N2079.
 The State v. Tony Pandua Hahuahori (19/02/02) N2185.
The State v. Micky John Lausi (unreported judgement 2001) N2091

Counsel:
Mr. J. Pambel for the State
Mr. D. Sakumai for the Accused

12th April 2002

Decision on Verdict

KANDAKASI, J:	You pleaded not guilty to a total of 8 charges of misappropriation contrary to section 383A (1)(a) of the Criminal Code. You also pleaded not guilty to one count of attempted misappropriation contrary to s. 383A in association with s. 4 and in the alternative, conspiracy to defraud the State contrary to s. 407(1)(b) of the Code. These involved a total of 9 cheques made out in the name of a number of non-national contract and volunteer officers employed with the Department of Education.

Preliminary Issue – Application to Adjourn

When your matter was called for hearing when it first came before me, an application was made with the agreement of both parties for an adjournment. The basis for that application was that you have a co-accused, Tau Ragana who is not present with his lawyer, ready to proceed with the trial. 

A perusal of the file revealed that this problem existed long before the matter was listed for trial. On subsequent occasions, when the matter was mentioned at call-overs the problem with Mr. Tau Ragana’s legal representation existed. Yet both parties reconfirmed the matter for trial and the court went by those representations. I asked both counsels as to how they were able to secure the trial date in the circumstances, and how they expected to over come the problem or get on with the trial once the trial date came about. Both Counsels provided no answer to that. This was the case because different counsel appeared at the listings court and obtained the trial dates and had them re-confirmed.

Almost a week was allocated for a trial of this matter. This meant judicial time was specifically allocated for a trial of this matter. Such time is rear commodity. Many cases are pending on the trial list for an allocation of such time for their trial. The number of fresh matters is on the increase, causing more pressure on the Courts to allocate as much time as they could to reach all of these cases without lengthy delays. This is why there has been and is continuously being emphasised and there has to proper assessment of cases before dates are allocated for trial. This imposes a duty on the lawyers represent parties and the judge listing matters to ensure that only matters that are ready for trial a listed. Counsel should have a clear knowledge of a case before attending a call-over or listings and ask for trial dates. He should know what facts are in issued and the witnesses that need to be called to give evidence. Counsel should ensure all preliminary issues and steps have been completed and the matter is truly ready for trial.

In cases where there more than one offender as in this case, Counsel should additionally determine the appropriateness of a joint trial. Once that issue is resolved that he or she should determine the number of witnesses to be called and confirm their availability. Then attend a call-over and ask for a date that is convenient to all the accused persons with their lawyers if they are separately represented. 

In this case Counsel attending the relevant call-overs appear not to have address their minds to the above necessities. This resulted in judicial time being allocated when one of the accused was not ready with his lawyer. It was also, with respect incumbent upon the listing judge to avoid listing the matter in the circumstances but he proceeded to list the matter for trial and subsequently confirmed the trial when at all times the Mr. Ragana was not ready with his lawyer. This is demonstrative of the Court accepting Counsels representations without properly assessing what is being put before the Court. The Court is supposed to be in control so as to ensure that there is no unnecessary wastage of Court time.

In this cases the listing judge was duty bound either not to list the matter for trial even though Counsel asked for the listing if there was going to be a joint trial of the co-accused. Alternatively, the listing judge was duty bound to fixe only the accused that was ready for trial to be given a trial date. He did not with respect do that. Instead, he listed the matter for a joint trial of the accuseds.

I decided against the application to adjourn and ordered you case to proceed to a trial. At the same time I order the revocation of Mr. Ragana’s bail and his trial be conducted when he and the State are ready for trial. I accepted that, this might mean that, the same witness called by the State against you might be called for the case against Mr. Ragana. This might mean double expenses. But that is a matter that goes with the State’s own conduct leading to that consequence. 

I arrived at that decision on the basis that, the matter was listed for trial despite Mr. Ragana not being ready with his lawyer. Scarce judicial time was allocated taking almost an entire week. If the matter was adjourned, that time was certain to be unnecessarily wasted. That wastage would have had the effect of other matters that could have been dealt with in that time being denied a trial date. The point is, once judicial time is allocated it should not be wastage unnecessarily. Once a matter is allocated a date, it should not be adjourned except for very good and convincing reasons. Examples of very good and convincing reasons are things like the death of a witness or a party or a counsel, war or happenings that can easily be classified as unexpected eventualities that can not be avoided by alternative arrangements. Failure of lawyers or parties to take appropriate steps or action to ensure a trial proceeds without disruption should not and can not be a good and convincing reasons for the vacation or an adjournment of a trial date once allocated. Similarly, the non-appearance of a co-accused and his lawyers is not a good and convincing reason to adjourn.

In my very limited experience at the bench I notice a tendency of ready adjournments. Lawyers and parties appear to take a casual approach to vacation of trial dates and or adjournments. The Courts appear to be also ready and willing to grant adjournments. In so doing they fail to realize that they are by this kind of attitude contributing to the serious backlog of cases. It is about time now that this stops and that all matters once listed be put to trial unless very good reasons as mentioned above exist to justify adjournments.

Returning to your case

Now returning to your case, the State called a total of 7 witnesses, in a bid to establish the charges against you. At the end of the State’s evidence you made a no case submission in respect of all of the charges. The State conceded to your application in respect of only two of the charges of misappropriation, namely, counts 5 and 8 and the alternative charge of conspiracy under count 9. I upheld the submission in respect of counts 5 and 8 and the alternative count under count 9 and dismissed those charges against you. That left you with 6 charges of misappropriation and one count of attempted misappropriation. You then went into evidence in your defence.

You took no issue on the truthfulness and the reliability of the State’s witnesses and their evidence. Indeed you accept the evidence produced against you and you did give evidence confirming or supporting the State’s case. Your only argument is that the State has not produced any evidence of you personally cashing or attempting to cash the cheques and applying the proceeds to your personal use. Therefore, you argue that the State has failed to establish each of the charges against you beyond any reasonable doubt. Hence, you argue that, you should be found not guilty on each of the charges against you. The State on the other hand argues that, based on the uncontested evidence, the only logical and reasonable inference open to this Court is that, you did cash the cheques and benefited or applied the proceeds of the cheques to your personal use.

Issues

This presents two issues for me to resolve. First, whether the primary uncontested evidence supports an inference that you cashed the cheques and applied the proceeds to your personal use? If the answer to that issue is yes, then the next issue is whether that is the only inference open to the Court? A determination of these issues will determine whether or not you are guilty of the charges against you. These issues will be determined on the basis of the facts or evidence before me.

Facts

The uncontested evidence or the relevant facts is straightforward. The Department of Education during the period 1st March to 31st April 1999 employed you as the second in charge of the Overseas Staff Section. This section was responsible for the administration of all overseas staff employed by the Department. This included processing all such staff’s entitlements in terms of salary, wages and gratuities as and when they fell due. The procedure was that, when special payment such as gratuity fell due to an overseas contract or volunteer officer, your section would raise a schedule for a manual cheque and a variation advise where necessary and take it to the payroll section to raise a cheque. Once a cheque is raised against the schedule, the cheque would come back to your section. The cheque would then be registered either in the personal collection or registered post register kept by your section. The former is for officers located in the National Capital District and the Central Province, while the latter is for all other provinces. Upon collection of a cheque, the payee would sign his/her name on the relevant register. This is usually administered through the pay office. Where a cheque is sent by registered mail, the relevant registered mail number and or particulars of that would be entered.

If there is to be a delay in the collection or postage of a cheque, it would be kept in a safe kept in your section. The officer in charge of your section, Mrs Naguwean has access to the key and in her absence, it would be you or an authorized officer, Mr. Tau Ragana, if both you and your superior would be out at the same time. 

A copy of the schedule and or the variation against which a cheque is raised would be placed on the relevant officer’s file. A copy of the cheque or its butt would also be placed in the relevant file.

Between the 1st of March and 31st April 1999, you raised 7 schedules supposedly for a number of expatriate contract and or volunteer officers. Seven cheques were then raised in accordance with the schedules you prepared. The cheques were as follows: 

1.	Cheque No. 02963045 dated 02/03/99 made to Ian Chaseling for K6,007.50;
2.	Cheque No. 02964681 dated 04/03/99 made to Jan Smits for K5857.58;
3.	Cheque No.02964673 dated 04/03/99 made to Giovanni Cagnoli for K7,619.26;
4.	Cheque No. 02968724 dated 11/03/99 made to Jan Smits for K5,857.58;
5.	Cheque No. 02974521 dated 24/03/99 made to George Bryde for K6,313.01;
6.	Cheque No. 02978277 dated 30/03/99 made ro Giovanni cagnoli for K6,253.97;
7.	 Cheque No. 02978919 dated 31/03/99 made to Thomas Maliakall for K5,930.73; 
8.	Cheque No. 02988061 dated 16/4/99 made to Regina Villajuan for K5,785.05; and
9.	Cheque No. 02990747 dated 21/04/99 made to Rosalia Matnog for K5,980.78.

The cheques under 5 and 8 above were raised and signed for by Tau Ragana. There is no evidence to connect you to them. On this basis, you lawyer successfully made a no case submission. The State conceded to that and I upheld the submission. I then proceeded to dismiss the charges against you in relation to those two cheques.

You were however responsible for 7 of the cheques. All of these cheques were not raised in accordance with the established procedure. There were no good basis to raise the schedules and the corresponding cheques. Once the cheques were raised and returned to your section, you did not get them registered in the appropriate register and either had them posted or collected in the usual and proper way. Also copies of the cheques and the schedules were not placed in the respective purported payee’s files. Instead, you admittedly signed the payee section of 6 of the cheques and delivered them to a Lohia Dina or your co-accused, Tau Ragana. You say you do not know what Lohia Dina or Tau Ragana did with the cheques. The State’s uncontested evidence is that these cheques were presented at CSC Investments Ltd trading as Gordons Food Store and were cashed. The endorsement on each of the 6 cheques was to that store in your handwriting. You agree with the handwriting expert witness’ evidence that you made those endorsements but deny going to the store, cashing the cheques and collecting their proceeds. You also take no issue on the State’s suggestion that, a payee has to present himself/herself and be properly identified before allowing a cheque to be cashed unless, the person paying on the cheque was part of a scheme to do so.

The last cheque for K5, 980.78 made out to a Rosalia Matnog was raised in much the same way has the 6 other cheques, you were responsible for. However, your superior and other work mates found you conducting in the illegal and improper way you had conducted yourself in. A stop payment was therefore, placed on that cheque the next day. That prevented that cheque from being cashed. 

You admit to having clear knowledge that, what you were doing was illegal and improper. You knew a number of criminal offences were being committed in the process, such as forgery. Yet you failed to report to either your superiors or the police. You participated in what appears clearly a scheme to defraud or otherwise misappropriate substantial funds from the Independent State of Papua New Guinea. Through this scheme, a total of over K49,000.00 was misappropriated. Of that, you were personally responsible for over K37,000.00.

You argued through your lawyer that, you did not personally cash the 6 cheques and applied the proceeds to your personal use. This is because you argue that the State has failed to produce any evidence on this against you. You therefore, argue that you should not be found guilty on each of the charges against you. You reason that, in order for the charges against you to be sustained, there must be evidence of you personally cashing and applying the proceeds of the cheques to your personal use. 

The State on the other hand argues that, it is not necessary to produce specific evidence of you personally cashing the cheques and applying the proceeds to your personal use. It submits that, I should infer from the uncontested evidence or facts that, you did cash the cheques and applied the proceeds to your personal use. 

The relevant and undisputed primary facts are these:

1.	You raised 7 schedules for 7 manual cheques purportedly for 6 expatriate officers employed by the Department of Education without any good basis;

2.	Seven cheques were raised and returned to you;

3.	You endorsed the payee section of six of the cheques and endorsed the back of each of the cheques to Gordons Food Store for payment;

4.	You had full knowledge that these conducts were improper and illegal but continued to engaged in it over six times for about almost two months involving over K37,000.00;

5.	You claim you were under pressure from a Lohia Dina and Tau Ranga, your co-accused. When asked to specify what the pressure was, you said Mr. Ragana and Mr Dina only said to you, "Just do it they won’t find out". At the same time they told you, it was a joke. You do not raise the defence of compulsion under s. 32 of the Code;

6.	You did not report any of the incidents to your superiors or the police. Instead you continued until you were found out;

7.	You claim you did not receive any reward in facilitating the misappropriation of the substantial amounts of money over a period of almost two months.

The law on a State case based purely on circumstantial evidence is clearly established in this jurisdiction. The Supreme Court in Pawa v. The State [1981] PNGLR 498 at 501, in the words of Andrew J stated the relevant principles who quoted with agreement the words of Miles J in The State v. Tom Norris [1981] PNGLR 493 at p 495 who said:

"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen (1975) 50 ALJR 108 at p 117:

‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than guilt of the accused’; Peacock v The King (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen (1963), 110 CLR 234, at p 252; see also Thomas v The Queen (1960), 102 CLR 584, at pp 605-606. However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’: Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.’"

These principles have been consistently adopted and applied in a large number of cases, by both the Supreme and National Courts. An example of this Garitau & Rosanna Tau v. The State (1997) SC528. In that case, the National Court convicted and sentence the Taus of murder purely on the evidence of the deceased badly stabbed body being found in their house and there was no explanation as to how that came to be. On appeal, the Supreme Court found that the learned trial judge did not err in applying the above principles and finding the Taus guilty. It therefore, dismissed the appeal.

I adopted and applied those principles in a number of cases starting with the cases of The State v. Andrew Aisa Keake (N0.2) (27/02/01) N2079, with the more recent one in The State v. Tony Pandua Hahuahori (19/02/02) N2185. The first was a case of wilful murder based entirely on circumstantial evidence. In that case I said at page 9 that, based on the relevant line of authorities:

"It is clear from the cases cited that, a case substantially resting on circumstantial evidence should result in an acquittal ‘unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’".

In your case, on the basis of the uncontested primary facts as outlined above, I find that you cashed the cheques and applied the proceeds either in part or in full to your own personal use. I make that finding on the basis of your admission in line with the State’s handwriting expert’s evidence that you forged the signatures on the payee section of each of the six cheques and had them endorsed to Gordons Food Store. By endorsing the cheques in that way, you knew that they were going to be cashed. This finding is also supported by you failing to establish the defence of compulsion under section 32 of the Code. You claim that you were under pressure merely by reference to the words "just do it they won’t find out". At the same time you claim that, that was a joke. 

In The State v. Micky John Lausi (unreported judgement 2001) N2091, I discussed the principles or the law on the defence of compulsion under s. 32 of the Code. I need not repeat them here. It will suffice however to say that where an accused person claims to have acted under a threat or force there must be evidence of:

1.	An immediate threat of death or grievous bodily harm;

2.	The threat must be directed at the accused himself;

3.	The threat is from a person capable of executing the threat;

4.	The person posing the threat is physically present at the time of the threat;

5.	The accused must believe that, he is unable to escape from the effects of the execution of the threats unless he acts in the way he has.

You clearly had no factual or legal threat or force directed against you to engaged in the conducts you engaged yourself in not only once, but on 6 different occasions. If the attempted misappropriation on the 21st of April 1999 resulted in an actual cashing and misapplication of the funds, it would have been seven different times, spreading over a period of almost two months. I find that, you were not threatened or forced to do what you did, but you did what you did because, you were told that, what you did could not be found out. You freely participated in the whole scheme to misappropriate the sums of money involved. You could have even continued if you were not found out in relation to the cheque made out to Rosalia Matnog for K5,980.78 on the 21st of April 1999.

Taking all of these factors into account, the only reasonable and logical inference open to me is that, you cashed the cheques and applied them to your personal use. Since you acted in association with Tau Ragana and Lohia Dina, it is also open to infer that, you all benefited from the proceeds of each of the cheques.

For these reasons, I return a verdict of guilty on each of remaining counts, counts 1,2,3,4,6,7, and 9. The first six for misappropriation of various sums of money between the 1st of March and 31st April 1999 totalling K37, 526.58. The last for attempted misappropriation of a sum of K5, 980.70. Accordingly, I convict you on each of the counts of missappropriation and attempted misappropriation contrary to section 383A(1)(a) and 4 of the Criminal Code.

You are now a prisoner of the State and as such I order that your bail be revoked and you be placed in the custody of the State at the Bomana CIS pending your sentence.
_____________________________________________________________________
Lawyer for the State: 		Public Prosecutor
Lawyer for the Accused:	The Public Solicitor