N5289

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1115-1117 of 2009

THE STATE

V

KEMBERT MURO

Popondetta: Toliken, AJ.
2013: 15th, 18th, 19th February
19th June

CRIMINAL LAW – Practice and procedure – Charge upon indictment different from that which accused was committed for trial – Whether indictment defective – Not defective – Orders and rulings of committal court not binding on Public Prosecutor (or State Prosecutor) in the exercise of his absolute and exclusive discretion to present an indictment for any offence that, in his opinion, is supported by the evidence in the committal depositions – Criminal Code Act Ch. 262,s 525(1)(a); Public Prosecutor (Office and Functions) Act Ch. 338)s.4.

CRIMINAL LAW – Practice and procedure – Evidence - Particular offence – False pretence – Whether details of false pretence ought to be pleaded in indictment – Not necessary to plead details or particulars in indictment – Details mean particulars - Criminal Code Act Ch. 262, s. 530 (18).

CRIMINAL LAW – Particular offence – False pretence – Trial – General denial – Whether accused falsely represented himself and obtained monies from complainant - Two cheques, one drawn to accused's employer and one for the accused - Whether cheque drawn for accused was a "pay cash" cheque to drawn under his name – Whether proceeds of the cheque belonged to his employer or to the accused – Cheque drawn in the name of the accused – Reasonable inference that the money was the accused's and not his employer's –Intention to defraud not proven – The requisite intention on a charge of false pretence must exist at the time the alleged false representation was made – Verdict of not guilty returned – Criminal Code Act Ch. 262, s 404 (1)(a).

CRIMINAL LAW – Particular offence – Misappropriation – Trial – General denial – Whether accused dishonestly applied to his own use monies belonging to his employer - Charge fails for failure of the State to prove charge of false pretence – Criminal Code Act Ch. 262, s 383A (2) (b)(d).

Cases Cited
The State v Herman Leahy (2008) N3570
The State v Saul Ogerem (2004) N2780
The State v Tanedo [1975] PNGLR 395)

Counsel:

J.W. Tamate, for the State
L. Mamu, for the prisoner

JUDGMENT ON VERDICT
19th June, 2013

1.	TOLIKEN, AJ. The accused Kembert Muro was committed for trial on 28/08.09 for three (3) counts of false pretence in contravention of Section 404 (1)(a) of the Criminal Code Act Ch.262 (the Code).

2.	On the 15th of February 2012, he was indicted for one count of false pretence and one count of misappropriation contrary to Sections 404 (1)(a) and 383A(2)(b)(d) of the Code respectively.

3.	The indictment alleges as follows:

Count One: KEMBERT MURO of BIWAT in East Sepik Province stand charged that he on the 03rd day [of] January 2009 at Goroka in Papua New Guinea did by false pretence obtained from one Jonah Lubuwe of Moibamo Construction Ltd two (2) cheques valued at K10,000.00 and K5000.00, being for outstanding bills for sale of sawn timber by Ambogo Sawmill Limited with intent thereby then to defraud the Moibamo Construction Ltd.

Count Two. KEMBERT MURO of BIWAT in East Sepik Province stand charged that he on the 03rd day [of] February 2009 at Goroka in Papua New Guinea dishonestly applied to his own use Five Thousand Kina (K5000.00) property belonging to Ambogo Sawmill.

THE ALLEGATIONS 

4.	The State alleged that the accused was an employee of the Amobogo Sawmill Company (Ambogo) in Popondetta. He was employed as a shipping clerk.

5.	It is alleged that during the month of November 2008 there was a purchase agreement for sawn timber at the request of Moibamo Construction Ltd (Moibamo), a company based in Goroka.

6.	Sawn timber was shipped and transported to Goroka as per the agreement. Moibamo made a down payment of K30,000.00 leaving an outstanding balance of some K34,0000.00.

7.	On 21st January 2009, the accused requested for and was given compassionate leave by his employer to attend to his uncle's funeral arrangements in the Eastern Highlands.

8.	On 03rd February 2009, when in Goroka, the accused approached the Manager of Moibamo. He informed him that he was on a business trip and that he was authorized by his boss to pick up the outstanding payment owed by Moibamo to Ambogo. The accused showed him his employment ID and instructed the owner of Moibamo to raise two (2) cheques – one for the amount of K10,000.00 payable to Ambogo and one for K5000.00 payable in his name. The accused informed the owner of Moibamo that he will sort things out with his employer later.

9.	It is alleged that after the accused received the two cheques he dishonestly applied K5000.00 belonging to Ambogo to his own use.

10.	The State alleged that when returned to Popondetta he never repaid those monies or hand over the cheque to Ambogo.

11.	The matter was reported to the police and 23rd of March 2009. He was later apprehended, arrested and charged.
 
12.	When asked by the Police the accused told them that the cheque written to Ambogo was at home. The police collected the cheque and handed it over to the Manager of Ambogo.

13.	The State alleged that the accused was not on duty nor was he authorized by Ambogo to collect the outstanding payments. He went on his own and lied to the Manager of Moibamo under false pretence and obtained the cheques amounting to K15,000.00 which belonged to his employer Ambogo.

14.	It is alleged that the accused never repaid the K5000.00 that he used to Ambogo. Hence he applied that sum which belonged to Ambogo to his own use.

PRELIMINARY ISSUE

(1)	Defect in Indictment
 
15.	Before the accused was formally arraigned, defence counsel Mr. Mamu raised an objection to the indictment, arguing that they have no knowledge of the charge of misappropriation. They only know of the three counts of false pretence upon which the accused was committed to Court for trial.

16.	He argued that since the accused was never committed for misappropriation, then, any indictment must necessarily be brought under Section 526 of the Code (Indictment without committal [Ex-Officio Indictment]).

17.	He argued that the indictment was therefore defective and should be dismissed.

18.	Mr. Tamate for the State countered that the Public Prosecutor has the power to indict for any offence warranted by the evidence.

19.	 Section 526 only applies where the District Court refuses to commit an accused (defendant) for trial. In the current case the accused was committed for trial and the State correctly indicted him under Section 525 of the Code which allows for the accused to be indicted for any offence that the evidence warrants.

20.	I ruled that Mr. Mamu's objection was misconceived as Section 525 (1)(a) of the Code clearly empowers the Public Prosecutor or a State Prosecutor to indict a person who has been committed for trial or sentence, for "any offence that the evidence appears to him to warrant." Conversely he may decline to lay a charge at all by filing the appropriate declaration. (Subs. (1)(b))

21.	It is misconceived to postulate that the Public Prosecutor's prosecutorial powers which include the power to lay charges or to decline to do so, can be circumvented, curtailed or restricted by the rulings of a committal court. 

22.	Committal proceedings are not, in the strict sense judicial in nature, despite the fact that they are conducted by District Court magistrate who is a judicial officer. They are administrative or ministerial only. The Magistrate merely vets or examines the evidence to see if it is sufficient to commit the defendant to stand trial or for sentence in the National Court. Be that as it may, the magistrate must act judiciously when exercising this function.

23.	The orders and rulings of a committal court do not in any way bound the Public Prosecutor (or a State Prosecutor for that matter) in the exercise of his absolute and exclusive discretion to present an indictment for any offence that, in his opinion is supported by the evidence in the committal depositions. He may in his discretion decline to lay any charge at all and may even file a nolle prosequi. (Ss 525(1)(b);527 of the Code; s. 4 of Public Prosecutor (Office and Functions) Act Ch. 338)
 
24.	 A similar power is vested in a committal magistrate by Section 95 (3) of the District Court Act Ch. 40, that if he "is of the opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, [he] shall proceed with the examination in accordance with this Division." (under-lining added).

25.	 This clearly empowers the magistrate to commit a defendant for any indictable offence at all which in his opinion, is established by the evidence in the prosecutor's brief. He is not restricted or bound by the charge preferred against the defendant in the information before him.

26.	I ruled accordingly and the trial proceeded with the arraignment of the accused.

PLEA

27.	The accused denied the charges, raising general denial as his defence.

ISSUES

28.	The principal issues for the Court to determine are:

1.	Did the accused falsely represent himself to the Manager of Moibamo Construction Ltd and obtain cheques valued at K15,000.00 with intent to defraud the said Moibamo?

2.	Did the accused dishonestly apply to his own use K5000.00 the property of Ambogo Sawmill? 
THE OFFENCES

29. False Pretence is provided by Section 404 of the Code as follows:
 
404. Obtaining goods or credit by false pretence or wilfully promise. 
 
(1) A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud—

 (a) obtains from any other person any chattel, money or valuable security; or

 (b) ... ,

 is guilty of a crime.

 Penalty: Imprisonment for a term not exceeding five years.

 (2) ...
 
(3) ...

30.	On this charge of false pretence the State needs to prove the following elements:

1.	The accused
2.	by a false pretence 
3.	with intent to defraud
4.	obtained from any other person monies totalling K15000.00

31.	Section 383A of the Code provides for the offence of misappropriation in the following terms:

 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; 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 a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:—

 (a) ...

 (b) where the offender is an employee and the property dishonestly applied is the property of his employer; or

 (c) ...

 (d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

 (3) ...

32.	The elements of the charge which the state must prove are:

1.	The accused 
2.	Dishonestly 
3.	Applied to his own use
4.	 Monies belonging to his employer
5.	The monies were in excess of K2000.00

THE EVIDENCE

33.	The State's case consisted of the evidence of the following witnesses:

1.	Jonah Lumbuwe
2.	Donald Wangi
3.	Raymond Lim

34.	The State also tendered the following documents by consent:

1.	A letter from Jonah Lumbuwe to the Popondetta Police dated 23rd February 2009 (Exhibit A1) to which was attached a copy of cheque butt bearing the name of the accused (Exhibit A2). These were tendered through witness Jonah Lumbuweh.

2.	The original Pidgin and English translation of the accused Record of Interview (ROI) (Exhibit B1 and B2)

3.	A photocopy of Cheque No. 13362 dated 3/2/09 written to Ambogo Sawmill for the sum of K10000.00. (Tendered through witness Wti 

35.	The defence called the accused and one other witness namely Gwen Suga.

Evidence of Jonah Lumbuweh

36.	Jonah Lumbuweh (Jonah) is the owner of Moibamo, a company involved in building construction and maintenance in Goroka. The company also supplies building supplies and timber.

37.	In 2008 his company ordered and was supplied sawn timber from Ambogo in Popondetta. They made an initial payment of K30, 000.00 and the timber was shipped out of Popondetta and transported to Goroka. The balance of K34, 000.00 remained outstanding and unpaid.

38.	On the 03rd of January 2009 the accused attended his office in Goroka. He identified himself as Kembert Muro, an employee of Ambogo. Because Jonah had conducted business with the accused over the phone he allowed him in. The accused informed him that he was on a business trip to collect debts.

39.	Because Moibamo owed Ambogo money Jonah drew two (2) cheques on the accused's instructions – one to the value of K10, 000.00 to Ambogo and the other for K5000.00 as a cashable cheque intended for the accused at his request. This was a total of K15 000.00.

40.	The accused told Jonah that the company did not pay him travelling allowance or for accommodation. That was why he wanted K5000.00 which he will sort out with his employer later. 

41.	Jonah had never seen or met the accused before that date. The accused left for Lae immediately.

42.	Jonah did not hear from the accused again. He, however, recalled receiving a telephone call three weeks later from a salesman from Ambogo - whose name he could not now recall – enquiring about Moibamo's outstanding debt. Jonah told him that he had paid K15, 000.00 to the accused when he visited his office.

43.	When the Popondetta Police later called him, he knew then that the accused never brought the payments back to Ambogo. He faxed the particulars of the payments to Police. These included a covering letter (Marked A1 for the State) and a copy of cheque butt bearing the accused's name (Exhibit A2). 

44.	In cross examination Jonah said he had communicated with the accused over the phone, knowing him only as a clerk with Amobogo. He did not know that he was the shipping clerk.

45.	He agreed that the accused did him a favour by adjusting the shipping costs (freight) to Lae for his purchase of sawn timber. He agreed that as a Highlander he felt obligated to the accused for that and he did pay him K500.00 for his trouble. However, he denied that the cash cheque of K5000.00 was his further appreciation when he heard of the accused's reason why he was in Goroka – to attend to his uncle's funeral.

46.	He maintained that he drew the cashable cheque for K5000.00 on the accused's instructions. He denied that he wrote the cheque out in the accused's name. He wrote "Pay Cash" and only wrote the accused's name on the cheque butt. He said he had written out "Pay Cash" cheques on numerous occasions in the 12 years of his company's operations. 

47.	He also said that he had given cheque payments on numerous occasions to debt collectors instead of depositing payments directly into companies' bank account as he did with the first payment to Ambogo. He admitted, though, that this was the first time he had written out a cashable cheque to settle an outstanding debt but this was only because of the accused's instructions.

48.	He said he was able to trust the accused because he identified himself as an employee of Amobogo Sawmill and he had been doing business with him.

49.	On re-examination, he said that he wrote out the cashable cheque because of business trust and also because the accused produced his company identification card. The money was not appreciation money but as part payment for his company's debt to Ambogo. He maintained that the accused told him that he will sort things out with his employer. He also said that banks had never queried the numerous cashable cheques that he had drawn over the 12 years of his company's operations.

Evidence of Raymond Lim

50.	Raymond Lim (Lim) was the former General Manager of Ambogo Sawmill Ltd. He now runs his own business.

51.	Lim recalled that in 2008 between Ambogo and Moibamo. Ambobgo supplied sawn timber to Moibamo. Moibamo made a down-payment of K30,000.00 and the balance was still outstanding.

52.	He recalled that the accused was employed as Ambogo's Shipping Clerk since 2007. His main duties were to check the shipping schedules, arrange movement of timber from the sawmill to the wharf for shipment, ensure that timber are loaded on vessels and shipped out and check with customers if they had received their timber.

53.	He recalled the accused coming to him in January 2009, telling him of the death of a family member in Goroka. He asked for two days off. He approved the request and allowed him to go.

54.	Then in February 2009 the company Salesman Donald Wangi informed him that the accused visited a customer in Goroka and collected monies without the company's knowledge. They, however, hoped that the accused will return with the money even though he was not authorized to collect any debts.

55.	On the 24th of February they checked with Moibamo in Goroka and were advised that they had drawn two cheques – a cashable cheque of K5000.00 drawn to the accused and one for K10, 000.00, drawn to Ambogo. 

56.	The company did not receive the payments Lim said that they were informed that the accused was in town but never reported to the company for duties. After waiting for sometimes they decided to report the matter to the police. He was apprehended at the main market selling betel-nut. The cheque of K10, 000.00 was later given to the police.

57.	As General Manager, Lim denied authorising the accused to collect outstanding debts owed to Ambogo in Goroka. It was not his duty to collect debts from customers. In any case, the accused was on a short leave and was not on company duty.

58.	The accused never returned to the company since then.

59.	In cross-examination the accused denied knowledge of a conversation between the Company Accountant one Nun Chee, Salesman Donald Wangi and the accused where the accused suggested to Nun that since he will be in Goroka he will physically check out the company's debtors there. Lim said it was not the accountant's responsibility but the General Manager's.

60.	He further denied knowing if Mr. Nun had jokingly said to the accused if he wanted a gun to go up with.

Evidence of Donald Wangi

61.	Donald Wangi was the former Sales Supervisor for Ambogo. His duties included supplying timber to customers, receiving orders, providing quotations, invoices and delivery dockets to customers.

62.	In November 2008, he recalled providing a quotation to a Moibamo Building Supplies of Goroka for the sum of about K64,000.00 plus. Timber was supplied and he remembered that payment was made leaving a balance of K34,000.00.

63.	In February 2009, he followed upon the balance and was told by Jonah of Moibamo that a colleague of his by the name of Kembert Muro had gone up and collected K15,000 in cheques from them. Wangi advised his boss, Lim, and they waited for the accused to return with the cheques. The accused was on a private family trip and was not on official or company business. Neither the General Manager, the Accountant nor himself had given any authority to the accused to do what he did.

64.	The accused never reported back for duty with the cheques. It was only after he had reported the matter to the police did the accused return the K10,000.00 cheque to Ambogo.

65.	Wangi said that it was not the accused's duty as shipping clerk to chase up debtors.

66.	 In cross-examination he said he was present when the accused informed Nun that the boss had given him leave to attend to his family obligations but denied hearing the accused telling Nun that in Goroka he will attend Moibaimo and follow up on their outstanding debt.

67.	He denied the suggestion that the accused offered to chase up the debt because Nun had been raising the outstanding debt with him. Wangi said he was only the shipping officer and it was in fact himself (Wangi) who had been working closely with Nun to follow up payments.

68.	He also denied hearing Nun jokingly tell the accused words to the following effect "Do you want me to give you a gun to go up and look for Moibamo?"

Record of Interview

69.	 The accused statements and answers in the record of interview pretty much reflects his sworn evidence as will be seen presently.

Sworn Evidence of the Accused

70.	 The accused testified that in 2008 he was employed by Ambogo as its Shipping Clerk. His main duty was to ship timber orders to clients' in Lae, Rabaul and Port Moresby. One such client was Moibamo.

71.	 He remembers Moibamo's order having arranged for its shipment to Lae and through the phone conversations he had with them when the order was handed over to him from the Sale Department of Ambogo. He remembers that Moibamo had made some payment and that the balance was still outstanding.

72.	 He remembers Nun and Donald Wangi coming to him and asking him to follow up on the outstanding payment as they had been waiting for a while for Moibamo to settle its debt. He said Nun asked him if he had followed up and he told him that he had rang and communicated with Jonah of Moibamo who had told him that he was aware of his debt and that he will settle it.

73.	 So when his uncle died up in Obura in the Kainantu District of Eastern Highlands he went to Lim and asked to be given leave to attend the funeral. He was not told when he was to return to work. 

74.	 He left Lim's office and went straight to his desk when Nun came out. He told him of his problem. At the time Wangi joined them. He then told them that he'll travel to Kainantu and since it was only a step away from Goroka he can go up and try to recover the debt by Moibamo. Nun then asked him "Do you want me to give you a gun for you to go and shoot him and get our money?" He left it at that and returned to his desk.

75.	 The next day the accused left for Lae by boat. He left for Goroka the following day. He called Jonah from Kainantu and told him about his problem. The next morning he went to Moibamo's office. He did not have an ID card because Ambogo did not issue any to its employees so he wrote his name on a piece of paper and gave it to an employee at the front counter and then waited. 

76.	 A little while later Jonah Lumbuwe came out and met him at the counter. He asked if he was Kembert and the accused said he was. Jonah said he recognised his voice. He then took him into his office where he introduced him to his wife.

77.	 When his wife left Jonah told the accused that he was glad he came. He acknowledged that he had an outstanding debt with Ambogo but said that he had some problems with his funds. The accused acknowledged his problem but said he told him that he had problem which he told him when he rang through.

78.	 Jonah said he will help him as he had promised when he sent him K500.00 previously. He then looked the accused in the eyes and asked how much he wanted. The accused told him that he had a death in the family and he can give him any amount he wanted. He then asked him how much he will pay for his debt. 

79.	 Again the accused told him that he can pay whatever amount he wanted and that he can take the payment on behalf of Ambogo. 

80.	 Jonah then wrote out a cheque of K10, 000.00 to Ambogo. He then wrote another one out to him "Kembert Muro" for K5000.00. Then on the cheque butt the accused saw Jonah write "Kembert Muro." He did not write "Pay Cash" on the cheque. If he did then he would have written the accused name in brackets below.

81.	 The accused took the cheques and immediately took a PMV to Lae. When he arrived in Lae he went into Town Branch of BSP and to deposit the cheques. However, he was unable to do so because, the teller who served him informed him that the drawer's account had insufficient funds and the account already has four overdrafts against it. If the cheques were presented they would be dishonoured.

82.	 The accused left the bank. After five days he took the next ship to Popondetta. In Popondetta he presented the cheque that was drawn to him at the local BSP branch. He was told that there were funds in the drawer's account but it will take seven days for the cheque to clear. 

83.	 The accused asked for an advance because he had to return to Lae. He was told to come back the next day. He returned the next day and was allowed to get an advance of K2000.00.

84.	 He then returned to Lae and travelled back up to Kainantu and fulfiled his customary oblgations at his uncle's haus krai. He stayed in Kainantu for almost three weeks and then returned to Popondetta.

85.	 On arriving in Popondetta he was arrested by the Police on a complaint by Ambogo. He told the police that Ambogo's cheque was in his house and they could go and get it and return it to Ambogo. He intended to bring the cheque to the company after he had sorted out his problem.

86.	 On examination in-chief he said that he had talked to Jonah about his order on numerous occasions. Jonah asked him to see if he can do something about reducing the freight charges. The accused said he talked to Steamships Shipping if they can reduce their measurements. They did and reduced the freight charge though he cannot now remember by how much. But that was why Jonah helped him out when he was in need.

87.	 In cross-examination he admitted that he was born in Bulolo but denied that his uncle died there. He maintained that it was in Kainantu.

88.	 He agreed that he went to see Jonah on his own accord but told him of his problem.

89.	He denied that Lim as General Manager was the only one who could have given him permission to collect any debts but admitted that he was not the company's debt collector.

90.	 He admitted receiving K500.00 from Jonah, not as commission but as appreciation money.

91.	 He denied taking advantage of Moibamo's indebtedness to demand money from Jonah. He denied instructing Jonah to write the cheques for the amounts in question or that he needed K5000 because he was not paid any allowances by his employer.

92.	 He said that he was not able to cash the cheque in Goroka because it was not a cashable cheque. Nobody knew him in Lae and in any case there were insufficient funds in Moibamo's account so he came to Popondetta where almost everyone in the bank knew him. He only spent three days in Popondetta so he did not hand over Ambogo's cheque. He denied that he never intended to bring the cheque in and said that he wanted to bring it when he returned to work the following Monday after he arrived back in Popondetta.

93.	 He said he did not repay the K5000.00 to Ambogo because the money was his – the cheque was written out to him. He said he had gone into the bank in Lae to deposit Ambogo's cheque.

Evidence of Gwen Suja 

94.	 Mrs. Gwen Suja (Mrs. Suja) was a former BSP employee and an in-law to the accused. In 2009 she was an Enquiry Clerk with the Bank in Popondetta. She remembers the accused coming to her at the enquiries counter to deposit a cheque which was written out in his name. She assisted by completing the deposit for the accused and told him that the cheque will be cleared after 7 days as it belonged to the Goroka Branch of BSP. She then took the cheque and the deposit slip and gave it to a teller. He then referred the accused to the teller.

95.	 The next day the accused returned and asked if he could withdraw K2000.00 to assist him with his father's funeral expenses. Again Mrs. Suja assisted him to fill out a withdraw form. She referred the withdrawal form to the Manager who approved it with instructions that the remaining balance must be touched after 7 days.

96.	 She explained the procedure involved in dealing with cheques that are presented to the bank by customers.

97.	 When a "Pay Cash" cheque is presented to the bank for encashment, it is examined very carefully and will be cashed only upon proper identification of the drawee or customer. The same applies to a "Pay Cash" cheque where the name of the customer is written next to the word "Cash."

98.	 A cheque drawn to a person's name cannot be cashed. It has to be deposited into the person's bank account.

99.	 At this juncture of the witness's evidence defence counsel sought to tender a statement purportedly from the Bank detailing the transaction in question. The prosecutor successfully opposed the tender of the document as its authenticity could not be verified.

100.	 On cross-examination she agreed that the transaction was well over four years but she can still remember that the cheque was written to the accused by Ambogo Sawmill for the amount of K5000.00. She said she did not attend to the accused as an in-law but as a customer of the bank.

101.	 Mrs. Suja said that the accused asked her give evidence only a week before the trial. When it was put to her that the accused had discussed the evidence with her she admitted that they in fact did for the very first time. She said that the accused asked her if she could remember him coming the next day and requesting to withdraw K2000.00. She was requested to give evidence as the officer who served the accused in 2009 when he came with the cheque. 

SUBMISSIONS

102.	 Mr. Mamu submitted that there is no dispute that Raymond Lim did not authorize the accused to follow up or collect Moibamao's debt. However, it was the company Accountant Nun Chee's duty to follow up on debts and it is clear that he occasionally asked the accused to follow up this particular debt. Donald Wangi knew about this.

103.	 Counsel submitted that evidence shows that the accused had numerous phone conversations e with Jonah when the latter followed up on the debt upon Nun's instructions. He said that the evidence of the conversation between Nun and the accused was confirmed by Wangi and consistent with what the accused said in his Record of Interview.

104.	 The evidence is also clear that the accused had gone up to Kainantu to attend to his uncle's funeral.

105.	 Mr. Mamu submitted that the most crucial evidence pertaining to the two charges are the testimonies of the accused and Jonah Lumbuweh and the material event is what happened in the latter's office in Goroka.

106.	 Their evidence is quite different and it boils down to the question of who to believe. On the one hand, Jonah said that he wrote the two cheques out on the accused's instructions, and that the cheque meant for the accused was written as a "Pay Cash". The accused of course tells a completely different story.

107.	 Counsel said that the law is clear. The State has to prove every element of the charges beyond reasonable doubt. On the charge of false pretence, the State has to prove that:
 
1.	The accused
2.	Falsely represented himself as being authorized by Ambogo Sawmill to collect outstanding payments from Moibamo
3.	When doing that he intended to defraud Moibamo Construction Ltd

104. Counsel said that the accused was an employee of Ambogo and there is evidence that he was asked by Mr. Nun the Account to follow up on Moibamo's debt during work. As a result he made numerous phone calls to Jonah. Mr. Nun was the other person in authority beside Mr. Lim to authorize the recovery of the debt.

105. Counsel submitted that even though there was no express authority from Mr. Lim, it was appropriate for the accused when he was on the ground in Kainantu to attend to Jonah's office in Goroka to recover those outstanding payments as the person who had been tasked by Nun for that purpose. In any case there was no need for specific instruction from Mr. Lim under the circumstances.

106. There is evidence that the accused attempted to deposit Ambogo's cheque in Lae but because of insufficient funds he brought the cheque to Popondetta. He intended to bring the cheque with him when he returned to work but did not because he had to go back to Lae and then to Kainantu.

107. He reported immediately to the police when informed that he was wanted. He did not try to hide. The cheque of K10, 000.00 was kept in his house and there is no evidence that he never intended to return to work.
108. Counsel submitted that there is no evidence to show that he falsely represented himself and that he intended to defraud Moibamo.

109. Counsel submitted that Jonah had made the first payment directly into Ambogo's bank account and he could have easily deposited K10, 000.00 this time around. 

110. Jonah had met the accused for the first time and is illogical, if he had intended to pay K15,000.00 to Ambogo for him to then write two separate cheques of K10, 000.00 and K5, 000.00. It is, however, logical and reasonable that K5000.00 was raised in the accused name and that is the reason why the sum K15, 000.00 was raised in two separate cheques.

111. On the count of misappropriation, counsel submitted that this charge depends entirely on the charge of false pretence. Since the cheque was written out to the accused's name as confirmed by his witness, and therefore the money was his, and he cannot misappropriate his own property, there was no misappropriation. 

112. Counsel therefore submitted that the accused should be acquitted of both charges.

113. Mr. Tamate on the other hand submitted that the main issues before the Court are:

1.	Whether the accused acted in false pretence with intention to defraud Moibamo Construction Ltd; and

2.	Whether he misappropriated K5000.00 belonging to Ambogo Sawmill Ltd.

114. The following facts are not disputed:

•	the accused was given leave to attend his uncle's funeral
•	on the 03rd of February the accused approached Jonah Lumbuwe in his office in Goroka
•	Jonah Lumbuwe wrote out two cheques, one for K10,000.00 to Ambogo Sawmill Ltd and the other for K5000.00 to the accused.
•	the accused returned to Popondetta where he brought the cheque written to him to the bank here and got the money.

115. So was K5000.00 paid to him as commission? Counsel submitted that one has to look at the circumstances of the case and the evidence. The court has to decide which party's evidence is credible and apply the principles of logic and commonsense. The court was able to observe the demeanour of witnesses.

116. Mr. Tamate submitted that Jonah Lumbuwe was a good witness. He gave straight forward evidence. All he told the court was what the accused instructed him to do. The accused produced an ID Card to identify himself. There was trust because of the business transaction he had with Ambogo. He acknowledged he owed Ambogo money. He said that the money was not a commission as he had already paid K500.00 to the accused for that. He had no reason to lie.

117. He did not deposit the money into Ambogo's account because the accused was there in person and upon his instructions he wrote out the two cheques in question.

118. Counsel submitted that Raymond Lim also gave straight forward evidence. He also has no reason to lie. The accused was a mere shipping clerk and he (Lim) did not give authority to any outstanding for the company.

119. Donald Wangi was the Sales Supervisor of Ambogo. He was the salesman who made quotation to Moibomo for some K64,000.00. Told court that Moibamo paid K30,000.00 leaving a balance of K34,000 .00. He was instructed to chase this up and was told that K15000 had been collected by the accused. He denied that neither Nun nor him gave any authority for accused to collect the debt.

120. Mr. Tamate submitted that the accused's evidence is fabricated to make it look like he did not obtain the money by false pretence and dishonesty. He said that the accused's evidence was very carefully given. He was very careful and detailed about things that happened more than four years ago. He became defensive during cross examination but what remains clear is that he went on his own accord to Goroka without being authorized. He admitted that much in his oral evidence and Record of Interview. 

121. Mr. Tamate pointed the court to following matters arising out of the accused evidence. 

•	Told the court that he went on his will and at his own expense. Said the company did not assist
•	He knew that Moibamo had outstanding payments with Ambogo
•	He had customary funeral expense to cover.
•	With these in mind he formed the intention to go and defraud Moibamo by falsely representing to them that he was on a business trip to collect the outstanding debt.
•	He knew that he was not on duty
•	He knew that he was not authorized by the Manager or the Accountant or the Salesman to collect any debts
•	He knew that he was not the company debt collector and it was not his duty to collect debts.

122. Counsel said the accused was in desperate need for money, hence, he had a strong intention to go and see Jonah Lubuwe. His evidence that he contacted Jonah Lumbuwe for his commission should not be believed.

123. Counsel further submitted that the accused never intended to return to work with Ambogo because he knew that he had done something wrong. That was why he said in cross-examination that he knew that police were looking for him. He was conscious of his own guilt.

124. His evidence that he could not deposit Ambogo's cheque for Ambogo is illogical. The money was Ambogo's and regardless of whether the drawer had money or not the cheque ought to have been deposited. It was a mere deposit and there is no point in holding back the cheque.

125. Counsel further argued that if the accused was concerned about funeral expenses then he ought to have cashed the cashable cheque in Goroka. He did not. He tried cashing it in Lae but nobody knew him there so he had to travel to Popondetta where he is known and where his sister-in-law could assist him.

126. Counsel submitted that Gwen Suja's evidence should be treated with caution and should not be given any weight at all. She admitted that she only came to know about the matter a week before the trial after a lapse of four years so it is hard to see how she could have recalled the details about the cheque. When she was asked who the drawer was she said it was Ambogo Sawmill. Clearly she did not recall the events of four years ago. And she did say that the accused told him only a week before the trial that he withdrew K2000.00 only from that cheque. No proper documents or a copy of the cheque was tendered.

127. Counsel submitted that Jonah's evidence should be believed. He maintained that the cheque was a cashable one. He told this to the police and had not changed his story.

128. Mr. Tamate therefore submitted that they have proved the charge of false pretence beyond reasonable doubt.
129. On the charge of misappropriation counsel submitted that the money did not belong to the accused. He said he was not paid an allowance hence he got the money. However, he never intended to repay and he knew that he could never repay the money. He also never intended to return to work for Ambogo Sawmill to give them back their money. 

130. Counsel finally submitted that the evidence is also clear that the accused was an employee of Ambogo Sawmill and the money he misapplied was more than K2000.00.

131. After close of final submissions as I was deliberating on the verdict I became concerned with the fact that the indictment did not state the exact nature of the false pretence alleged against the accused.
 
132. I felt that on a charge of false pretence the State must allege in the indictment what the false pretence was. If it was by word of mouth what were the words? If it was by some other means what were those? I felt that this was important as the accused is entitled to meet the prosecutor's case with the greatest of certainty there is. He should not be left to assume what the State's allegation is, for this may prejudice his defence. 

133. The indictment does not state the exact nature of the act of false pretence alleged though the evidence and arguments seem to suggest that the accused represented himself as having the authority to collect outstanding payments from Moibamo to Ambogo. 

134. In the matter there seems to me to be a variance between the indictment and the evidence. (s 535 CCA)

135. So on 19th April 2013, when I was to deliver my verdict I raised this concerns with counsel. I then re-opened the case and asked counsel to make written submissions on the following questions before I can proceed with a decision on verdict. The questions are:

1.	 Is a general averment of false pretence, without stating the particulars, in the indictment sufficient in law?

2.	If there is variance between the evidence and the indictment, is it not material to the merits of the case so that the accused will not be prejudiced in his defence on the merits? (s 535). 

136. Both counsel made written submissions. 

137. Counsel seemed to have understood the issue to be merely whether the Court can amend the indictment at the verdict stage. 

138. In short both counsel agreed that while s 335 of the Code clearly allows an amendment to made to an indictment where there is variance between the indictment and the evidence, the court may only do so if the variance is not material to the merits of the case and the accused person will not be prejudiced in his defence on the merits.

139. That this point is settled is evident from the authorities cited by counsel and hence any argument on it is really moot. (The State v Herman Leahy (2008) N3570; The State v Saul Ogerem (2004) N2780; The State v Tanedo [1975] PNGLR 395)

140. The real issue, however, is whether the false pretence ought to be particularized. And only Mr. Tamate argued the point directly in his written submission. 

141. Mr. Tamate submitted that Section 530 – Particular Indictments - is important and relevant to the issue. Section 530 (18) provides:

 18)  In an indictment for an offence that involves any fraud, fraudulent pretence, trick or device, it is not necessary to set out the details of the fraud, pretence, trick or device.

142. There is therefore no need to set out the particulars of the false or fraudulent pretence, trick or devise as in the present case.

143. Mr. Mamu countered that the terms "details" used in the provision cannot mean or be equated to particulars. 

144. I agree with Mr. Tamate. The point that vexed the court is really answered by s 530 (18) – which is abundantly clear and needs no interpretation. The word "details" must be understood in its literal meaning which can only mean "particulars".

145. Therefore to put the point to rest, where an accused person is charged for fraud, false or fraudulent pretence, trick or devise, as in the present case, the indictment need not plead any particulars or details. These particulars or details would normally be supplied in the allegations that are put to the accused for the purpose of arraignment.

FINDINGS OF FACT
Undisputed Facts

146. I find the following salient facts as undisputed.

•	In 2008 to about the month of February 2009 the accused was employed by Ambogo Sawmill as Shipping Clerk whose main duty was to arrange for movement of timber orders from the sawmill to the wharf and for shipment to customers in various ports like Lae, Port Moresby and Rabaul.
•	In November 2008 Ambogo supplied some K64,000.00 worth of sawn timber to the Goroka based company Moibamo Construction Ltd.
•	Moibamo paid K30,000.00 to Ambogo but still had K34,000.00 outstanding.
•	Prior to the shipment of the timber out of Popondetta the accused communicated with Jonah Lubuwe of Moibamo regarding the shipment and freight charges.
•	The accused managed to convince the shippers to reduce the freight and for that Jonah Lumbuwe remitted K500.00 to the accused as a token of his appreciation for his assistance in reducing the freight. 
•	In early 2009 the accused was given leave to attend his uncle's funeral in Kainantu.
•	He was not given any specific instructions to chase up or follow up on Moibamo for its outstanding debt either by Mr. Lim (GM) or Salesman Donald Wangi as it was not part of his duty. 
•	On the 03rd of February 2009, the accused approached Jonah Lumbuwe in his office in Goroka. It was the first time two of them met physically.
•	Jonah Lumbuwe wrote out two cheques, one for K10,000.00 to Ambogo Sawmill Ltd and the other for K5000.00 to the accused.
•	The accused travelled to Lae on the same day and unsuccessfully tried to deposit the cheque for K10,000.00 written to Ambogo Sawmill.
•	After five days in Lae the accused returned to Popondetta where he brought the cheque written to him to the bank here. He deposited the money into his bank account. 
•	He kept the cheque written out to Ambogo in his house until it was retrieved by the police after he was arrested.

Disputed Facts

147. There are, however, disputed facts, the resolution of which the entire prosecution case will ultimately stand or fall. And the outcome will depend very much on what happened between the accused and Jonah Lubuwe on the 03rd of February 2009 at Lumbuwe's office in Goroka. 

148. The crucial disputed facts are:

1.	whether Mr. Nun Chee authorized the accused to chase up and collect Moibamo's outstanding debt to Ambogo while in Goroka.
2.	whether the accused called Mr. Jonah Lumbuwe from Kainantu and advised him of his problem.
3.	whether the accused produced an company Identification Card to identify himself to Jonah Lumbuwe.
4.	whether the accused told Jonah Lumbuwe that he was in town to collect outstanding debts for Ambogo.
5.	whether the accused instructed Jonah Lumbuwe to write out two cheques – one to him for K5000.00 and the other to Ambogo for K10, 000.00.
6.	whether the cheque drawn to the accused was made "Pay Cash" or drawn in the accused's name. 

149. Both counsel acknowledged that the resolution of these disputed facts will turn on whose evidence the court will believe. This Court in turn with nothing else to rely on since no other witnesses were called to corroborate what transpired between the accused and Jonah Lumbuwe, I am left with having to rely on their credibility which in turn will depend on their demeanour in court.

150. I now turn to consider the charges.

False Pretence
 
151. In regard to this charge:

1.	 Did the accused falsely represent himself as being authorized by Ambogo Sawmill to collect outstanding payments from Moibamo; and

2.	In doing so did he intend to defraud Moibamo Construction Ltd.

152. So let me consider these disputed facts against the issues.
 
153. Now in respect of whether Ambogo's accountant Nun Chee instructed the accused to follow up on Moibamo when in Goroka, State witnesses Raymond Lim and Donald Wangi both deny that Nun gave such instructions. 

154. The accused said that when he suggested to Nun that he might have to call into Moibamo while in Goroka, Nun asked him if he wanted him to give him a gun. The accused took that as permission or authority from the accountant, whose duty it was to follow up on debts, for him to attend Moibamo's office in Goroka for the outstanding payment.

155. I find, however, that the alleged statement cannot reasonably be understood as giving such authority on the accused. If anything it is more like Mr. Nun expressing his view of the absurdity of such an attempt or the futility of the idea. But even if the statement can be understood as accused seem to suggest, I am satisfied on the evidence of both Mr. Lim and Mr. Wangi that Mr. Nun had no authority to issue such instruction.

156. No, the accused was not given any instructions by Mr. Nun to follow up on Moibamo's debt let alone attend to their office in Goroka.

157. It follows therefore that the accused attended Moibamo's office on his own accord.

158. Did the accused call Lumbuwe from Kainantu before he went up to Goroka? The accused said he did but this was denied by Lumbuwe. I am unable to make a firm finding on this point but it may be possible that the accused may have indeed called Lumbuwe from Kainantu. But then again for all we know he may have not called. 

159. But did the accused produce a company identification card to identify himself and subsequently tell Jonah Lumbuwe that he was in town to collect the outstanding payments to Ambogo?

160. Jonah Lumbuwe testified that the accused produced his company identification card. It is not clear, however, whether he produced it at the front office or personally to Lumbuwe when he called the accused into his office. 

161. The accused said that he did not produce an ID card as the company did not issue any. He said that Jonah was able to recognize him by his voice because they had been communicating by telephone in respect of Moibamo's order.

162. I find it extremely difficult to make a finding as to which version to believe but perhaps the fact that the accused was unable to cash the cheque drawn to him in Goroka or Lae may have a bearing on the issue. 

163. Why did the accused have to travel all the way back to Popondetta? Could it be that he had to do this because he did not have an ID card, and that the only place where he can en-cash his cheque without having to produce one would be Popondetta where he was known to bank officials? 

164. I find therefore that the above can support a reasonable inference that the accused did not have a company issued ID card as he says and that Jonah Lumbuwe was only able to recognize him by his voice. 
 
165. Now the next three disputed facts are the most crucial because they impact on the crucial elements of the charges, particularly that of false pretence.

166. Did the accused tell Jonah that he was in town on company business to collect outstanding debts? Did he instruct Jonah to write out the two cheques in question and did Jonah draw as Pay Cash to the accused for K5000 and another for K10,000 to Ambogo?

167. The evidence again is diametrically opposed. Jonah testified that the accused instructed him to write the cheques – a Pay Cash cheque (K5000) for the accused and the other for K10,000 for Ambogo. He said the accused told him that while he was on company business he was not paid travelling allowance by the company, hence he needed money for that and for accommodation. He assured Jonah that he will sort things out with his employer later. 

168. The accused on the other hand testified that he had gone to Jonah for assistance with his customary obligations to his uncle's funeral. Said that he followed up Jonah Lumbuwe's promise of a commission for his efforts in reducing freight charges for this timber shipment and for which Jonah had already paid K500.00 previously.

169. Whose story should I believe?

170. Jonah came across as very confident, calm and collected. He gave his evidence in a straight forward manner. He did not waiver under cross-examination.
 
171. The accused on the other hand at times seemed defensive, evasive and deliberate. His oral testimony did not depart very much, though, from his statement in his Record of Interview. I placed no weight on the evidence of Gwen Suja as she had no independent recollection of what transpired some 4 years ago and that she may have been prompted somehow by the accused.

 172. So did the accused falsely represented himself to Jonah Lumbuwe as having the authority from Ambogo to collect outstanding payments owed by Moibamo and with the intention to defraud Moibamo?

173. The competing evidence from Jonah and the accused presents some difficulty for me.

174. Firstly for a seasoned and obviously prudent businessman like Jonah Lumbuwe, how is it that he was able write a cashable cheque of K5000 for the accused whom he just met for the first time, despite having dealt with him over the phone previously? Was it logical for him to trust the accused without verifying his claims with his employers in Popondetta that he not only was on company business but also that he was not paid travelling allowance? Could it be that the K5000 was indeed appreciation money as claimed by the accused?

175. Secondly the cheque of K5000 was supposedly drawn as a cashable cheque, a matter that the accused disputed claiming that it was drawn in his name "Kembert Muro". The State tendered a copy of what it says was the cheque as proving that it was indeed written out as PAY CASH. (Exhibit A2). Unfortunate this document does not show that at all. A cursory glance at Exhibit A2 reveals what seems to be a copy of the cheque butt with the following writings: 
 
 3.2.09 
 KEMBERT 
 M
 5000-

176. It seems to me that the butt had been superimposed with part of a blank deposit slip. Now this document clearly is fabricated and if it was meant to prove that the cheque in question was drawn as "PAY CASH" it miserably failed to do that. There is no explanation why a genuine copy of the cheque or better still the original could not have been secured from the bank and tendered in keeping with the best evidence rule.

177. I am therefore led naturally to infer that the cheque drawn by Jonah Lumbuwe for the accused was written out in the accused's name. It was not a PAY CASH cheque as Jonah Lumbuwe would like us to believe.

178. This explains why the accused had to travel back to Popondetta. He did not have an ID card and therefore had to go there to deposit the cheque and have it cleared as he was known by bank officers here. 

179. At this juncture it must be stated that the requisite intention on a charge of false pretence must exist at the time the alleged false representation was made. 

180. Hence anything that the accused did after he got the cheques from Jonah, such as his attempt to deposit the cheque written out to Ambogo in Lae or his failure to hand it over to the company when he was briefly in Popondetta, cannot prove that he had the requisite intention. This is despite the fact that the reason he gave for not depositing Ambogo's cheque seems illogical.

181. In the final analysis, despite the State's strong plea for a conviction, the above findings cast sufficient doubt on its case. Any doubts, as is trite, are also applied to the benefit of the accused. 

182. Hence, on the charge of false pretence, I find that the State has not proved its case beyond reasonable doubt that:

•	the accused falsely represented himself as being authorized by Ambogo Sawmill to collect outstanding payments from Moibamo resulting in Jonah Lumbuweh writing out the cheques in question; and
•	 that at the relevant time he intended to defraud Moibamo Construction Ltd.

Misappropriation

 183. The charge of misappropriation depended entirely on the success of the charge of false pretence. Since the State has failed to prove false pretence, it follows therefore that the charge of misappropriation cannot stand because generally one cannot misappropriate his own property.

184. But while it can still be argued that the charge can stand alone because the money in fact was his employer's and he was supposed to reimburse his employer, this count must suffer the same fate as the former because of the doubts that have been cast upon the case.

185. In short it has not been proven beyond reasonable doubt that the money was not meant for the accused as he claimed but remained the property of Ambogo.

186. I therefore return verdicts of NOT GUILTY for both counts. I order that the accused be acquitted and he be discharged forthwith and that his bail monies be refunded.

Ordered accordingly 
_____________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused