N3126

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 846 OF 2004

STATE

V

ENOS STEVEN ULAIAS

Lae: Kirriwom, J.
2006: 7, 8 & 13 February

CRIMINAL LAW – Misappropriation – Accused dealing with property dishonestly – What amounts to misappropriation – Proof essential ingredients of the offence – Criminal Code, s. 383 A(1)

PRACTICE AND PROCEDURE – Submission of No-Case-to-Answer- lack of evidence establishing essential ingredients of the offence – Evidence tendered inconsistent, incredible and unsafe to return verdict of guilt even without the accused giving evidence – Acquittal of the accused ordered.

Cases cited:

Roka Pep v The State (No.2) [1983] PNGLR 287
Paul Kundi Rape v The State [1976] PNGLR 96

Counsel:

M. Ruarri, for the State
S. Daniel, for the Accused 

RULING ON NO-CASE-TO-ANSWER
  
13 February, 2006

1. KIRRIWOM, J: At the close of the state case where the Accused Enos Steven Ulaias is appearing before the court charged with three counts of misappropriation under section 383 of the Criminal Code, Mr. Daniel, counsel for the Accused made a no-case-to answer submission relying on the Supreme Court case of Roka Pep v The State (No.2) 

[1983] PNGLR 287. The Supreme Court in Roka Pep reiterated the principles that were earlier discussed and enunciated in Paul Kundi Rape v The State [1976] PNGLR 96 which have laid the basis for the defence applying to the court after prosecution has closed its case seeking acquittal of the accused person on a criminal trial on two basic grounds: (1) as at the end of the prosecution case there is no evidence at all adduced to prove one or more elements of the charge against the accused or (2) the evidence before the court was so unreliable, unsatisfactory and unsafe for a conviction to be funded on it. 

2. Section 383A (1) provides: 

""(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.""

3. The elements of the charge requiring proof by the prosecution by virtue of this provision of the code are:

a.	A person
b.	Dishonestly applied
c.	To his own use or to the use of another 
d.	Property 
e.	Belonging to another; or 
f.	Belonging to him but subject to trust etc.

4. The Accused is indicated of the following three counts:

g.	Count one:

Between 19 February 2002 and 23 December, 2003 at Lae he dishonestly applied to his own use Fourteen thousand six hundred and twenty five kina and fifty six toea (K14, 625.56) property belonging to Internal Revenue Commission. 

h.	Count two:

Between 27 November 2003 and 1 December 2003 at Lae he dishonestly applied to his own use forty Five Thousand Kina (K45, 000) property belonging to Internal Revenue Commission. 

i.	Count three:

Between 31 December 2003 and 27 February 2004 at Lae he dishonestly applied to his own use K8, 971.08 property belonging to Internal Revenue Commission. 

5. The prosecution presented the following statement of facts for purpose of arraignment of the accused: 

The accused was employed by the Internal Revenue Commission Customs Office here in Lae as Budget and Administration Officer between 2002 and 2004. During the period of his employment he misappropriated monies belonging to IRC for the operations of Customs Office here in Lae and the region. 

In respect of Count 1 the accused took the sum of K14, 625.56 from the IRC account at Morobe Provincial Treasury for purpose of paying unauthorised claims for salaries and wages for non-existent persons or ghost names and also for student trainees working with IRC at the time who were not entitled to such payments. 

In respect of Count 2, the accused took K45, 000 from the same account through the Provincial Treasury Office in Lae. Accused obtained quotations and invoices from a company in Lae called East West (1) Ltd for purposes of purchasing parts for IRC vehicles and for repair works on the said vehicles. He then raised requisitions attaching the invoices which he forwarded to Treasury Office in Lae for cheques to be raised in two (2) lots of payments:

(1)	K21, 483.90 and
(2)	K23, 516.10

These cheques are raised between 27 November 2003 and 1 December 2003 which cheques were paid to East West (No. 1) Ltd for two motor vehicles from that company. 

In respect of count 3, the accused took K8, 971.09 from the same IRC account between 31 December 2003 and 27 February 2004 by obtaining airline tickets for that value from Air Niugini for an officer of IRC based in Madang for leave tickets for the officer and family then converted those tickets for his own use by changing the routes for travel. 
 
6. In order for there to have been misappropriation, the prosecution must lead evidence supporting the following essential ingredients for each count: 

j.	Count One:

i.	The Accused
ii.	Dishonestly applied
iii.	To his own use or to the use of another 
iv.	Property in money valued at K14, 625.56
v.	Belonging to Internal Revenue Commission Customs Lae.

k.	Count Two:

i.	The Accused
ii.	Dishonestly applied
iii.	To his own use or to the use of another 
iv.	Property in money valued atK45, 000.
v.	Belonging to Internal Revenue Commission Customs Lae.

l.	Count Three:

i.	The Accused
ii.	Dishonestly applied
iii.	To his own use or to the use of another 
iv.	Property in airline tickets valued at K8, 971.09.
v.	Belonging to Internal Revenue Commission Customs Lae. 

7. State called a total of six witnesses out of a list of fifteen witnesses whose names appear on the back of the indictment. The first witness was Mr Michael Otari who is the Regional Director of IRC Customs Office, Lae. His evidence was very general and was relevant to the disappearance of funds or moneys missing from the office under direct handling by the accused how he dealt with the accused at the office level. He then commissioned a thorough internal investigation by IRC Custom''s in-house investigators who subsequently referred the case to the Police. 

8. The next State witness was Pauden Patimos. Her evidence was relevant only to the third count which drew objection from the defence. Mr. Daniel argued that it would be more logical and sensible for the State to call its witnesses in the order in which the charges are laid out in the indictment instead of going from the last count to the first. While the court was agreeable to the view, given the difficulty that the prosecution was having in assembling and even locating its witnesses, realising that wishful thinking could only remain figment of imagination. There is no legal requirement for the prosecution to call its witnesses in a particular order or sequence although in practice some coherent and logical sequence of calling witnesses could assist in orderly and expedient management of the case to quick finality. But given the long history of the case and the predicament the prosecution was facing was very well appreciated. 

9. Ms. Patimos gave evidence of dealing with the accused during the period in question. Her evidence is only relevant to establish the first element of second count, the identity of the persons she dealt with as being the accused whom she well knew as the officer from IRC Customs she dealt with regularly. 

10. The next State witness was Sunny Monston Bangkok, General Manager for East-West (1) Limited. His evidence related to the second count. But his evidence is self-serving and neither advances nor defeats the prosecution case. He provided the quotations for the two motor vehicles, a Toyota Hilux single cab and a Mitsubishi L200 double cab and he obtained payments for them in bank cheques. 

11. Jeffery Tambaute gave evidence of carrying out internal investigation of the allegations against the accused and referring the matter to the Police. He is a crucial witness in the State case who is responsible for collecting all material evidence and in collaboration with the Police placing them before the Court. He gave evidence of locating one unused airline ticket in the name of Male found in the accused''s residence during search conducted under search warrant. That ticket has not been produced in court. 

12. The last state witness was Philemon Nagepu. He is the Provincial Treasurer and the financial delegate from the provincial treasury office who gives the final approval for cheques to be raised when the claim had gone through very elaborate and thorough screening. He made reference to two specific claims involving sums of K23, 516.10 and K21, 477.90 and said that as far as he was concerned, there was nothing wrong with the claims when they reached him and he authorized payment. 

13. After all these evidence is analysed and rationalised, for purpose of establishing prima facie case in respect of each of the three count, the State has established in each of the three count the following:

m.	Count one –

None of the essential ingredients of the offence in this count has been established apart from the blunt assertion that a sum of K14, 625.56 was dishonestly applied by the accused. There are no supporting documents such as FF3 and FF4 lodging for payments and requisitioning cheques and not even the cheque or cheques that were raise in payment or payments for them. There is even no evidence from the alleged payees or beneficiaries of the alleged payment especially the student trainees refuting receiving such payments from IRC in the period in question. 

This was quite a speculative charge against the accused based entirely on the knowledge of the in-house investigators of IRC but supported by documentary evidence. Its speculative nature was clearly demonstrated by Jeffery Tambaute who in his testimony before the court corrected what he saw as anomaly in this court. He said the correct amount for this count ought to have been K7, 780.00 and not K14, 625.56 as pleaded in the indictment. 

But even then, despite the eleventh hour amendment, this was not good enough to add any substance to the allegation. At the end of his evidence, this charge in Count 1 remained mere allegation without proof. 

n.	Count Two –

 There is evidence from Sunny Monston Bangkok of the accused requesting and being given quotation for two reconditioned motor vehicles from East West (1) Ltd. Toyota Hi-Lux Double Cab for K27, 000.00 and Mitsubishi L200 for K17, 000.00.

 His knowledge and familiarity with the accused is beyond question as he had been doing business with him over a time concerning IRC motor vehicles. 

 There is evidence that after providing quotes for the vehicles, about two or three months later, he received two lots of payment in Bank cheques – one for K23, 444.10 and the other cheque was for K21, 477.90. Both cheques added up to K 45, 000.00.

Photocopies of both these cheques were marked for identification as MF 13 and MF 14 subject to the State producing the originals which it failed to do and none of those cheques became evidence in the trial. However the court has in evidence one original General Expenses Form (exhibit 1) requesting payment to East West (1) Ltd for ''balance payment of service of auction vehicles'' in the sum of K21, 483.90 and a photocopy of another similar form containing similar details for the sum of K 23, 516.10 (exhibit 2) were produced in evidence by Philemon Nagepu of the Treasury Office, Lae. 

o.	Count Three – 

There is evidence of the accused being the person served at the Air Niugini Office by Pauden Patimos during the relevant period in question. 

There is however no evidence of the value of the tickets that were purchased. There is no evidence of the use of those tickets by persons other than those named in the tickets. Such evidence could only have come from the Madang based IRC Office named Paul Male in whose benefit the tickets were allegedly purchased. 

14. The Law is settled in this jurisdiction on no-case-to answer submissions as set out in Paul Kundi Rape (supra) and Roka Pep (No. 2) (supra)). The headnote of the case as taken from the majority judgment settles as follows: ""(By Kidu CJ Kapi DCJ Andrew and Kaputin JJ) Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence. 

Where the tribunal decides there is no case to answers the accused is acquitted and that is the end of the matter. 

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.""

15. The evidence before the court falls far short establishing prima facie case against the accused on counts one and three because one or more essential ingredients of the offences charged have failed to meet the test to go to the next phase. There is simply no evidence against the accused for him to answer the charge or for there to be a conviction based on law. 

16. The court can only convict on evidence, not conjectures, speculations or suspicions. 

17. The lack of evidence in both counts one and three may be attributed to generally it seems either bad investigation or poor prosecution. 

18. Often in cases of dishonesty and fraud, the court is assisted greatly by various documents commencing first with the police record of interview with the accused. In this case no such record of interview was relied upon. Next are the accountable documents such as office records which include forms completed for payment of money, cheques requisition forms, cheques, etc. Except for count two, no documentary evidence was presented to the court in respect of counts one and three such as wages sheet, cheques requisition forms, general expenses forms, cheques or even airline tickets particularly when evidence from Jeffrey Tambaute was quite specific that an airline ticket under the name of Male family was found in the accused''s home during a search of the place lawfully conducted under a search warrant.

19. No such cheques made in payment of the goods and services complained of were produced. The only evidence against the accused on count three is from Pauden Patimos who served the accused on the occasions in question in the ordinary course of business. There was no reason for her to suspect any foul play. The question of dishonesty arises in the issue of those tickets. Even if changes were made to the original destinations and tickets reissued, there was no reason for the witness to think otherwise than the accused was merely doing his job and she was serving him in the same usual way he had been served in the past. The barest minimum that ought to have been shown was a ticket and the evidence from the person in whose name these tickets were said to have been raised or issued. Male gave no evidence and no ticket was produced by Tambaute that was found in the accused''s house to raise any reasonable suspicion as to what this ticket might have been doing in the home of the accused. 

20. Court one suffers equally the same fate. No documents of wages sheet, requisition for cheques or general expenses form completed by the accused were produced. It was alleged instead that the accused destroyed all the documents to conceal his dishonesty. However, the documents he completed and forwarded to Treasury for raising of cheques for payment should be available at the Treasury Office. There is no reason for them not being made available especially when a senior officer of the Provincial Treasury gave evidence in court and was able to produce one original FF4 and recognise a photocopy of another FF4 (both marked exhibits 1 and 2) in respect of count 2 (Exhibits 1 and 2).

21. Therefore in respect of Counts 1 and 3, there is no evidence of first, the cheques that were issued out of the Treasury Office here in Lae, Secondly, no evidence of supporting documents requesting payments based on which Treasury was satisfied and authorised payment to be made, Thirdly, there is no evidence that the accused received the cheques in payment of those cheques fourthly, there is no evidence that the accused dishonestly applied to his own use the proceeds of those cheques and finally, in the absence of production of the cheques, there is no evidence of any loss suffered by Internal Revenue Commission other than what has been verbally asserted by the witnesses. 

22. Therefore in respect of counts one and three, the court finds that the accused has no case to answer and will not call upon him to answer those charges. The court therefore dismisses those charges and acquits the accused on both counts. 

23. In respect of Count Two, as was pointed out earlier, it cannot be said that there is hardly any evidence before the court. This count relates to payment of K45, 000.00 made to East West (1) Ltd for purchase of two motor vehicles by the accused using IRC funds without the authority and for his own personal benefit. 

24. The State sought to prove this charge in a reversal order of the sequence of events. Evidence was called through one Sunny Monston Bangkok the General Manager of East West (1) Ltd who provided quotes for the vehicles concerned to the accused and an uncle of his for K27, 000.00 and K17, 000.00 respectively of both vehicles in or about February 2003. Some three or four months later he returned and enquired with the witness as to the payment and was told that payment must be in bank cheque. He went away and came back with a bank cheque for K23, 516.10 for the Toyota Hi Lux and later brought the next bank cheque for the amount of K21, 483.90.

25. Mr Bangkok insisted that he did not release the vehicles immediately as he wanted the cheques to be cleared before he did that. After a week or so the accused and his uncle returned and he released the vehicles to them. 

26. The evidence before this court is that the accused was first seen driving both these vehicles at different times since mid-2003. Mr. Bankgok agreed that he released the vehicles to the accused around mid-2003 although he was not quite definite about the month. Mr. Tambaute also supported this evidence by saying that the accused was in possession of the vehicles since mid-2003 although they confiscated them in the middle of 2004. 

27. Mr. Nagepu approved payments to East West (1) Ltd as per the claims lodged through FF4 (See Exhibits 1 and 2) in or about October 2003. The date on both documents is 28/10/03. This would mean that any cheques raised in payment based on these two forms must bear dates after 28/10/03.

28. In this regard I must accept the evidence of Mr. Bangkok that he received one bank cheque dated 5/12/03 valued at K23, 444.10 and another in the sum of K 21, 477.90 dated 28/11/03 from the accused in payment of these two vehicles. 

29. This evidence does not reconcile with the evidence given by Bangkok, Tambaute and Nagepu in several material respects;

p. if Bangkok is to be believed that he did not release the vehicles until after the payments were received, the accused could not have purchased the two vehicles with the funds drawn from IRC account through the process described by Nagepu because Exhibits 1 and 2 show quite clearly that the cheques were not available until November and December 2003 but the accused had the vehicles in mid-2003. Mid-2003 could mean May, June, July or August, 2003 in plain and ordinary understanding of the English language. 

q. The amounts stated in the alleged cheques paid to East West (1) Ltd and the amounts in the two 0(exhibits 1 and 2) are not the same. This could only mean that there is a missing link in the evidence which is the cheque raised by the treasury from which the two bank cheques were purchased have not been produced to explain the difference whether there was any deliberate dishonest act on the part of the accused. The bank must have these supporting documents requesting for bank cheques. 

30. On this kind of evidence even without calling on the accused to testify, no reasonable tribunal doing justice can return a verdict of guilt or lawfully convict the accused. The evidence on this count as it stands is so inconsistent in the State case itself, incredible and so lacking in weight that the court must reject it and not call on the accused to answer the charge. 

31. The court will not call on the accused to answer this charge and therefore dismisses this count as well. The accused is also acquitted of this count. 

32. Verdict: Not Guilty on all Three Counts.

Public Prosecutor: Lawyer for the State
Habuka Lawyers: Lawyer for the Accused