N5565

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 825 & 826 of 2013

THE STATE

- V-

WILLIE MARUM
ANTON KULIT

Kokopo: Oli, AJ
2014: March 11th, 13th, 14th, 28th,
April: 1st,

CRIMINAL PRACTICE & PROCEDURE - No Case To Answer Submission by Defence to terminate the case – Rely on Roka Pep case authority under second limb – No Sufficient evidence as it stand to secure safe conviction is the question of law -Consideration whether there is sufficient evidence to call upon the accused that they have a case to answer is the question of facts – The evidential burden shift to defendants to be heard in defence in order for court to weigh the total evidence before it.

CRIMINAL PRACTICE & PROCEDURE - No Case To Answer Submission by Defence to terminate the case – Consider whether defendants have dishonestly applied to their own use and to the use of other persons Three Million Kina (K3,000.000.00) the property of the Independent State of Papua New Guinea – Consider prosecution evidence before the court as it stand I am satisfied that prosecution has proven a prime facie case against the accused –- Hence, court rule that defendants have a case to answer.

Cases Cited:

Papua New Guinea Cases

The State – v – Paul Kundi Rape [1976] PNGLR 96
The State – v – Aige Kola [1979] PNGLR 620 

The State – v - Lasebose Kuriday, (unreported judgment of Kearney Dep CJ, N300 of June 1981)
State – v - Roka Pep [1983] PNGLR 19
Lawi – v – The State [1987] PNGLR 183 
State – v – Napilye Kuri [1994] PNGLR 371 at 375

Overseas Cases

R. – v – Galbraith [1981] 2 All E.R. 1060

Counsel

Mr Albert Kupmain, for the State
Mr Philip Kaluwin, for the Accused

RULING ON NO CASE TO ANSWER SUBMISSION

1st April, 2014

1.	OLI, AJ.: The Defendants Anton Kulit of Dawai Village in Sumkar District of Madang Province and Willie Marum of Tinganagalip Village in Gazelle District of East New Britain Province stands charged that they to wit; Anton Kulit and Willie Marum between the 17th day of December 2009 and the 30th day of September 2012 at Kokopo in East New Britain Province in Papua New Guinea, dishonestly applied to their own use and to the use of other persons Three Million Kina (K3,000.000.00) the property of the Independent State of Papua New Guinea thereby Contravening Section 383A (1) (a) of the Criminal Code Act 1974.
LAW
2.	The amendment to this section under the Criminal Code Act 1974 was the insertion of this new section 383A as [s. 383A insert Act No 10, 1981(Criminal Code (Misappropriation of Property) Act 1981) s 11] and s. 383A (1) (a) reads:-

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) ....

is guilty of the crime of misappropriation of property.(underline is mine)

FACTS

3.	The brief facts surrounding the charge against the defendants arose from a Project Proposal submission by the defendants, who were directors on behalf of Hilands Farm Ltd, a registered company seeking funding in the sum of K3.0 million to the office of the Secretary Mr Joseph Lelang (as he then was) of National Planning and Monitoring on 17th December 2009 for the purpose of establishing Piggery, Poultry Farming and Chicken Eggs processing in the Warangoi area of Pomio District in East New Britain Province. 

4.	The Secretary confirms that K3 million Kina was approved by the Project Screening Committee under the Large Plantation Allocations to fund this project. The Project Proponents have sought Government Financing under the Government Agriculture Intervention program in the 2010 Budget to establish a Poultry Farm for commercial production in East New Britain Province.

5.	The two accused were Directors of the said company Hilands Farm Ltd who received the payment of cheque No. 43362 on 21st July 2010 in the sum of K3.0 million from National Planning & Monitoring Department and was deposited into a company A/C# 10002014932 at Bank of South Pacific – Waigani Branch – Port Moresby. The State alleges that the two accused used the K3.0 million for their own use and to the use of other persons. 

6.	The State further alleges that the accused were not entitled to the K3.0 million except the proposed Project on Poultry Farming and Chicken Eggs business. However, during the material time both accused were the signatory to the said company operating account. The State further alleges that as soon as the cheque of K3.0 million was deposited into the company account on 13th August 2010, the accused dishonestly used the money for the purposes of other than the Project Proposal submitted through National Planning & Monitoring Department for Hilands Farm Ltd for Poultry Farming and Eggs Business in Warangoi District. Finally, the State alleges that Hilands Farm Ltd Poultry Farming and Chicken Eggs business never eventuated nor it ever was completed. Hence, this charge against the two defendants who pleaded not guilty to the charge laid under s. 383A (1) (a) of the Code.

ONUS AND STANDARD OF PROOF

7.	Since the defendants each and severally have pleaded not guilty to the charge, I must remind myself as a trial Judge at this stage of the trial of the fact that the burden of proof of guilt of the accused is placed upon the State. The onus rests upon the State in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove their innocence but for the State to prove their guilt and to prove it beyond reasonable doubt. This is the presumption of innocence. The State does not have to prove however, every single fact in the case beyond reasonable doubt. The onus which rests upon the State is to prove the elements of the charge beyond reasonable doubt. 

8.	In this case, in order to convict an accused person of a charge under s. 383A of the Code, the State must prove beyond reasonable doubt that the accused:

(a)	Dishonestly;
(b)	Applied in his own use or use of another;
(c)	Property belonging to another.

9.	Whether an accused had a particular state of mind is question of fact which has to be decided by the jury when there is a trial on indictment and by justices when there are summary proceedings: Lawi – v – The State [1987] PNGLR 183, followed in the State – v – Napilye Kuri [1994] PNGLR 371 at 375 (Woods J).

10.	The State Prosecutor presented the formal indictment charge of one count under s, 383A (1) (a) of the Criminal Code Act and the defendants were arraigned with the charge indictment present to me. 

11.	The court having administered the formal arraignment put to the defendants, the defendants in response told the court that they each and severally denied the charge put to them. The State opened its case and called six witnesses except one who went through vigorous cross examination by the Defence Counsel Mr. Kaluwin and the State close its case.

AT THE END OF THE PROSECUTION CASE – DEFENCE ELECT TO MAKE NO CASE TO ANSWER SUBMISSION.

12.	The Prosecutor called a total of six witnesses except one who is very ill and admitted in Port Moresby General Hospital, who is undergoing urgent medical attention and is bed ridden as per his medical certificate from his Physician, to attend court hearing in Kokopo during the trial sitting of this case now in Kokopo. The Prosecutor informed the Court that Prosecution will call no further witnesses and closed its case. Defence elected to make No Case to Answer Submission.

NO CASE TO ANSWER SUBMISSION BY DEFENCE

13.	The Defence Counsel informed the Court after having to consider its defence strategy options elected to make a No Case to Answer Submission on behalf of the defendants. 

14.	The case for the prosecution being closed, Mr Kaluwin, appeared for the accused, submitted to me that there is no case for his client to answer. His submission, in short, is that as the case now stands, I could not be satisfied beyond reasonable doubt as to the guilt of the accused. In support of that submission he has invited me to weigh the evidence that has been presented for the prosecution and, he says, on the whole of that evidence I could not be so satisfied. I should therefore discharge the accused. Mr Kaluwin in his brief address advanced the case authority to me on the case of State – v - Roka Pep [1983] PNGLR 19.The Defence Counsel submitted from the outset that the issue is not whether on the evidence as it stands, the defendants ought to be convicted, but whether on the evidence as it stands the defendant could be lawfully convicted. 

15.	The Defence Counsel made reference to the Prosecution's case that whilst there is evidence that officers within National Planning & Monitoring office has not followed the process from requisition of funds through use of forms FF3 and FF4 to the point where the cheque was raised and released to Hilands Farm Ltd Project Proposal proponent, the State has failed to show any evidence of misappropriation by the defendants as to how the funds were misused. The State is required by law to prove every element of the charge that (a) the defendants were Dishonest in their disbursement of the funds sought; (b) the defendants applied the funds to their own use or use of another person; (c) the funds used were the property of another person or corporate entity, in this case the State. Hence, the no case to answer submission should be upheld and that the defendants should be acquitted forthwith.

BRIEF RESPONSE BY PROSECUTOR

16.	The Prosecutor Mr Kupmain in his brief response told the court that the Prosecution has discharged the onus to prove its case beyond reasonable doubt by calling number of witnesses to prove the requisite elements of the charge under s. 383A (1) (a) of the Code. The Government through the National Planning & Monitoring released funds to Hilands Farm Ltd in the sum of K3.0 million upon approval of their Project Proposal submission on Poultry Farming and Chicken Eggs business in Warangoi area. The cheque was released on 17thJuly 2010 to the defendants company. 

17.	The State has provided documentary evidence with Record of Interviews (ROI) that defendants has dishonestly; applied the use of the money to their own use or to the use of another person; and the property belongs to another person, the State. The State Prosecutor quoted few examples of instances where huge amounts of payment was made to purchase goods in Madang not related to the project on Poultry Farming and chicken eggs business in Warangoi and unaccounted huge sums of cash withdrawals with unexplained expenditure to the said project. 

18.	This is one of the many discrepancies uncovered during the cause of Police Sweep Team investigation on the Project funding, to Hilands Farm Ltd by National Planning & Monitoring, on allegation of misappropriation by the proponent of the Project Proposal directors of Hilands Farm Ltd. Hence, the Prosecutor submitted that there is sufficient evidence that the defendants must be given the opportunity to tell the court how they use the money as per the Project Proposal submission for funding for Poultry and Chicken eggs business project at Warangoi. 

19.	The State Prosecutor stressed the point that it is in the interest of justice and the defendants, who are better placed to give an account as to how the K3.0 million Project funds for Hilands Farm Ltd was expended as per the Project Proposal submission. However, in the alternative, if thorough and proper Monitoring and Evaluation report plus the Final Acquittal report on the project were produced in Court during the trial on the Project, if obtained by Police Investigation Sweep Team during the cause of their investigation carried out against the beneficiaries, the defendants of the Hilands Farm Ltd could be.

20.	Mr Kupmain suggest that the Court would be better placed to make a well informed assessment of the project expenditure report supplemented by formal defendants' acquittal report on the K3.0 million funding by the State to the Hilands Farm Ltd. This will clearly demonstrate that the funds advanced for Poultry Farming and Egg Business to Hilands Farm Ltd by National Planning &Monitoring were properly accounted for and used for the purpose for which it was advanced as per the Project Proposal submission. If these primary documents were provided at the Courts' disposal during this trial the defendants may, as a matter of law rely on, no case to answer at the close of prosecution's case. 

21.	However, sad to say the defendants were not able to provide these primary accountable documents and reports, hence this unfortunate dilemma shift the evidential burden to the defendants to inform the Court of how the funds for the Poultry Farming and Egg business at Warangoi were expended and used; in view of the prosecutions' documentary evidence, witnesses statements and ROI by defendants before the Court as it stands, in this case is sufficient for the defendants to answer to the charge. The Prosecutor Mr Kupmain respectfully submit that there is a prima facie case established and that the defendants each and severally have a case to answer.

APPLICATION OF FACTS TO THE LAW

22.	The law on No Case to Answer in this jurisdiction is well settled and the Defence Counsel refers to the landmark case authority on the no case to answer submission in the matter of State – v - Roka Pep [1983] PNGLR 19. His Honour Kapi DCJ (as he then was) held that:

(i)	A submission of no case to answer at the close of the prosecution is the question of law for the judge to decide, the question being whether there is evidence, which if accepted by the jury would establish the elements of the offence.

(ii)	Where there is a case to answer but the judge is of the view, on the facts that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or the prosecution case will not improve, or the prosecution case is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on the no case submission. The State – v – Aige Kola [1979] PNGLR 620, and The State – v - Lasebose Kuriday, (unreported judgment of Kearney Dep CJ, N300 of June 1981) followed. R. – v – Galbraith, [1981] 2 All E.R. 1060 considered.

23.	However, where there is no case to answer submissions made, like in this case, these principles are further discussed in jurisdictions where there is a jury trial. This was discussed in the case of R. – v – Galbraith [1981] 2 All E.R. 1006. Lord Lane CJ suggested the following guidelines at 1042:

"(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a)	Where the judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it, it is his duty, on a submission being made, to stop case.

(b)	Where however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty; then the judge should allow the matter to be tried by the jury."

24.	In another landmark case on no case to answer submission is the case of The State – v – Paul Kundi Rape [1976] PNGLR 96 O'Leary AJ held:

"Where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is a question of law, to be carefully distinguished from the question of fact to be asked at the close of all of the evidence namely whether the prosecution has proved its case beyond reasonable doubt. This principle was applied in the following cases of May – v – O'Sullivan [1955] HCA 38; (1955) 92 C. L. R 654 and Zanett – v – Hill [1962] HCA 62; (1965) 108 C. L. R 433 at p. 442 applied.

This is not to be confused with the question which may arise at the close of the case for the prosecution as to whether the matter should be withdrawn from the jury or whether there is sufficient evidence on which a reasonable jury ought to convict which involves an inquiry into whether the evidence is so insufficient that the accused ought not to be called upon to answer it, which is also to distinguished from the question of facts namely whether the prosecution has proved its case beyond reasonable doubt. This was referred to in the case of Ryder – v – Wombwell (1868) L R N Exch. 32 at p. 39 referred to.

Where there is no case to answer, an accused may not as a matter of law be called upon to answer it. Where there is insufficiency of evidence, and accused may as a matter of law be called upon to answer it, but there is a discretion in the judge either to take the case away from the jury a tribunal of fact, or not.

25.	The Defence Counsel Mr Kaluwin's submission on a no case to answer is based on the second limb principle enunciated under State – v – Paul Kundi Rape that prosecution has failed to prove a prima facie case on the documentary evidence and site inspections report before the Court that, as it stands, the defendants each and severally could not lawfully be convicted, therefore the case should be dismissed and the defendants each and severally discharged forthwith. 

26.	However, if in the alternative, on the first limb that prosecution has not provided during the trial that there was no one iota of evidence nor any thread of evidence provided by the prosecution against the defendants, the option to terminate the case through a no case to answer submission, as a matter of law, would be in order and the defendants would be as a matter of law be entitled to an acquittal according to the law. The Defence Counsel submitted to rely on the second limb as a matter of law, that the evidence as it stand is insufficient to secure a safe conviction against the defendants therefore defendants should not be called to have a case to answer as charged.

27.	The brief historical background to this case is that the project was approved by the Department of National Planning and Monitoring and funded because it was consistent with the Government's Development Policies and National Priorities (employment growth, economic growth and agriculture rural development) and that there was budget for this activities. A K3.0 million cheque No # 41204 was released by the Department to the Highlands Farm Ltd for Piggery Integrated Project on 3rd March 2010 following their Project Proposal Submission to the Department of National Planning & Monitoring. The said amount was released because the Project impact was in line with Government policies. 

28.	However, the said cheque issued had some internal issues with the Project Proponent as noted by Mr Japhet Michael, Acting Assistant Secretary (Budget Branch) Letter of 21st July 2010, and so the Cheque No # 41024 was cancelled. The cancellation of cheque No # 41024 was due to number of changes. Firstly, the Proponent of the Project wanted to pursue Chicken and Poultry farming instead of piggery. Secondly, there was a name change from "Highlands Farm Ltd" to "Hilands Farm Ltd". A new cheque was raised and issued No # 43362 in the sum of K3.0 million was released on 21st July 2010 because according to the project scope, the Poultry project was going to be large scale and would produce commercial farming of eggs and chicken that would be rival and create competition to Mainland Farming Ltd which is the country's main chicken product producer at present. 

29.	However, according to National Planning & Monitoring Secretary Mr Joseph Lelang as confirm in this case, Hilands Farm Ltd as the proponent and recipient of National Government Funding is required by Law to fully implement the project and acquit the funds once the project is fully implemented and funds expedited. During the trial the prosecution were not able to make reference to these primary documents because defendants were not able to provide such documents nor they were vigorously sought by the Police Investigation Sweep Team during the cause of their investigation. The documentary evidence before the Court comprises of Banks transactions accountable documents, witnesses statements and other relevant attachment documents to the case plus ROI by the defendants. 

30.	Having stated the prosecutions' evidential probative value, as I perceived them to be in this case, the application of the law with respect to the No Case to Answer Submission at the end of the prosecution case is imperative to determine whether the defendant should be called upon to give evidence in defence or the case should be terminated due to insufficiency of evidence by the Prosecution to establish a prima facie case.

31.	The case law on no case to answer submission is well canvassed in the matter of The State –v- Paul Kundi Rape [1976] PNGLR at p. 96. The prosecution briefly submit that the Court should consider the prosecution evidence in its entirety before the court to make a finding that there is evidence as it stands is sufficient to establish a prima facie case against the defendants thus inviting the Court to use its discretion to call upon the defendant to go in defence as a matter of law. The issue that Court needs to address when there is a Submission on No Case to Answer at the close of the prosecutions' case is not "whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, defendant could lawfully be convicted". This is a question of law, to be carefully distinguished from the question of fact to be asked at the close of all the evidence namely whether the prosecution has proved its case beyond reasonable doubt. 

32.	The Court, in the above authority, went further to explain its appropriateness to get to the real issue and to distinguish between the insufficiency of evidence and the use of the Judge's discretion to discontinue the trial. The Court stated "where there is a no case to answer, an accused may not as a matter of law be called upon to answer it. However, in this case there is sufficient evidence though prosecution may not have proven all the facts in the case, but Court is satisfied that there is sufficient evidence before the Court as it stand, that prosecution has the onus and did discharge that duty to prove all the requisite elements of the charge beyond reasonable doubt. I therefore as a trial judge use my discretion on the evidence before me to find that the defendants each and severally do have a case to answer.

CONCLUSION

33.	Having considered the legal issues referred to above, I am satisfied that the prosecution has made out a prima facie case against the defendants and that the defendants will be called upon to give their side of the story, if they wish to. However, they are entitled to remain silent, if they so desire to take that option after receiving proper legal advice from their learned Counsel or call witnesses in their defence, if they wish to. The Court accordingly make the ruling on the No Case to Answer Submission that the defendants each and severally do have a case to answer as per their charge upon indictment under s. 383A (1) (a) of the Criminal Code Act 1974.
____________________________________________________________

State Prosecutors: Lawyer for the State
Public Solicitors: Lawyer for the Defendants