N6301
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 265 OF 2015  

BETWEEN:
THE STATE
AND:
JANET OBA

Waigani: Salika DCJ
2016:   16 & 17 February & 2 May

CRIMINAL LAW – Forgery – Uttering – misappropriation of property - who forged document – who uttered document – forgery and uttering not proved – misappropriation of property proved

Cases Cited:
Kindi Lawi v The State (1987) PNGLR
The State v Francis Laumadava (1994) PNGLR 291
The State v Gabriel Ramoi (1993) PNGLR 33

Counsel:
Ms R Koralyo, for the State
Mr C Nidue, for the Prisoner

INTRODUCTION

2nd May, 2016
1.	 SALIKA DCJ:  The accused was charged with one count of forgery, one count of uttering and one count of misappropriation.  The charges were brought under S462 (1), S463 (1) and (2) and S383A (1) and (2) of the Criminal Code respectively.   

BRIEF FACTS
2.	 Janet Oba is an inspector of police and is the quarter master of NCD based at the Gordon’s police Barracks.  She was a sole shareholder and a sole director of a company called J & J Constructions Limited and the sole signatory of that company’s account held at the Bank South Pacific Ltd Account No. 1001553407.  

3.	It was alleged that J & J Constructions Ltd was awarded a contract to construct a jetty at Wutung in West Sepik Province.  The contract was for K6.5 million and the State did pay the K6.5 million to the company to construct the jetty.  The jetty was never constructed.

4.	During the course of investigation it was discovered that K1, 286,000.00 remained in J & J Construction account from the K6.5 million originally awarded.  The account was frozen through an action taken by the Proceeds of Crimes Unit in the Public Prosecutor’s Office.  The accused was restrained from accessing the account of the company and from withdrawing money from that account.

5.	On 19 July 2010, a consent order to forfeit the K1, 286,000.00 to the State was agreed to by the parties and endorsed by the court.  While the funds were forfeited to the State they still remained in the J & J Construction Account No. 1001553407 for over 2 years.  The State should have taken out the consent orders to that effect and served it on the bank.  The State failed its part in respect of that

6.	The State alleged that on or about 6 August 2012 Janet Oba and a Peter Waieng (now deceased) went to the Bank South Pacific Head Office in Port Moresby and served on the bank a forged court order dated 16 March 2012 which specifically ordered Bank South Pacific to release the money forthwith to J & J Constructions account.

7.	Sometime later the restriction on the account was lifted and the accused withdrew the funds from 21 September to 18 October 2012.  The withdrawal transactions were done over the counter in cash and cheques which were signed by the accused totalling up to K1, 286,000.00.

8.	The Bank was alerted by the Proceeds of Crime Unit of the Office of the Public Prosecutor of the false court order of the 16 March 2012.  The Bank after doing further due diligence checks realised it had been fooled and lied to and took full responsibility for its negligence and repaid the State in full the K1, 286,000.00.

9.	The accused was then charged with one count of forgery, one count of uttering and one count of misappropriation.

ELEMENTS OF THE CHARGES
Forgery:
10.	Section 462(1) says:-
“A person who forges any documents, writing or seal is guilty of an offence that, unless otherwise stated is a crime”.

The elements of the charge would be:-
(i)		on a date
(ii)		a person who
(iii)	At a place
(iv)	forges
(v)		any document, writing or seal.
The State is therefore required to prove each of the above elements of the charge of forgery beyond reasonable doubt.

11.	In this case what was allegedly forged was a court order S462(5) says:-
       “If the thing forged purports to be, or is intended by the offender to be understood to be or to be used as:-
		
(a)	the seal of a court of record of Papua New Guinea or in any part of  Her Majesty’s Dominions, or a seal used at the Chambers of a Judge for stamping or sealing summonses or order; or

(b)	a seal or signature by virtue of which any document can by law be used as evidence; or

(c)	any process of any court of justice of Papua New Guinea or in any part of 	Her Majesty’s Dominions; or

(d)	a document issued or made by or out of or by the authority of a court referred to in Paragraph (c); or 

(f)	a record or other document of or belonging to a court of record of Papua New Guinea or in any part of Her Majesty’s Dominions; or 

(g)	a copy or certificate of any record of a court referred to in Paragraph (f); or

(h)	an instrument, that is made evidence by any law, or

(i)	a document that a justice is required or authorised by law to make, attest or issue, and purporting to be made, attested or issued by a justice”.

12.	 The elements of subsections (5) are:-
(i)	if the thing forged
(ii)	purports to be or is intended to be understood to be or to be used as:-
a)	seal of a court of record of PNG
b)	a seal or signature which by law can be used as evidence
c)	...........
d)	...........
e)	..............
f)	..................
g)	..................
h)	..................
i)	a document a justice is required by law to make attest or issue, and purporting to be made, attested or issued by a justice.

13.	Again the State will need to prove all the above named elements of the charge beyond reasonable doubt.  It is trite law that where the State fails to adduce any evidence on any of the above element of the charge, the accused is entitled to an acquittal.  Usually applications of a “no case to answer submissions” are premised on that principle.  

UTTERING
14.	Section 463(2) of the Criminal Code Act says:-
	“A person, who knowingly and fraudulently utters a false document or writing, or counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question”.

The elements of the charge of uttering are:-
(i)	a person who
(ii)	at a place
(iii)	knowingly and fraudulently (with intention)
(a)	that the thing (document)
(b)	will be used or acted upon as genuine
(c)	to the prejudice of some person 
(iv)	utters 
(v)	a false document

15.	The State is obliged to prove each of the above elements of the charge of uttering beyond reasonable doubt.

MISAPPROPRIATION
16.	Section 383A(1) of the Criminal Code Act says:-

“(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.

17.	The elements of charge of misappropriations are:-
(i)	a person
(ii)	at a date
(iii)	place
(iv)	dishonestly applies
(v)	to his own use or use of another
(vi)	property
(vii)	belonging to another.
The State is obliged to prove each of the elements of the charge beyond reasonable doubt.

UNDISPUTED FACTS
18.	The following facts were not in dispute;
a)	 Janet Oba is a serving police offer with the rant of Inspector and is the quarter master for NCD and based at the Gordon Police Barrack.

b)	J & J Construction Ltd is a company registered under the Companies Act.

c)	Janet Oba was the sole shareholder and director of J & J Construction Ltd.

d)	Janet Oba was the sole signatory of J & J Construction Ltd account held at Bank South Pacific (BSP) Port Moresby Branch.

e)	J & J Construction Ltd account number was – 1001553407.

f)	J & J Construction was awarded a Contract by the Government through the Central Supply and Tenders Board for K6.5 million to construct Wutung Jetty in the West Sepik Province.

g)	The K6.5 million was paid by way of a Government cheque to J & J Construction Ltd to construct the Wutung jetty.

h)	The K6.5 million cheque was deposited into the J & J Constructions Ltd account no. 1001553407 held at the BSP Port Moresby branch.

i)	K1, 268,778.41 was frozen in the J & J Construction Ltd account no. 1001553407 by order of the court per Mogish J on 8 February 2010 and Janet Oba and others were restrained from accessing and withdrawing monies from that account.  Janet Oba knew the company account was frozen and she knew why it was frozen.  Janet Oba knew of that consent order and the reason for it.

j)	On 19 July 2010 by consent the K1, 268,778.41 was forfeited to the State.

k)	However the K1, 268,778.41 was not immediately forfeited to the State and was still kept in the J & J account until 6 August 2012.  Janet Oba knew about the money still in the company account.

l)	On 6 August 2012 a court order dated 16 March 2012 was served on the BSP.
m)	From 21 September 2012 to 18 October 2012 Janet Oba signed withdrawal and debit forms and monies were withdrawn from the K1, 268,774.41.

n)	A total of K1, 194,143.91 was withdrawn between 21 September 2012 and 18 October 2012.

o)	BSP has reimbursed K1, 268,000.00 to the State.

p)	The Court order dated 16 March 2012 presented to BSP on 6 August 2012 was a false court order.

ISSUES
19.	As the false court order dated 16 March 2012 was used to free up the money held in account number 1001553407, the questions that arise are:- 

i)	who forged the court order dated 16 March 2012;
ii)	who uttered the court order dated 16 March 2012; and
iii)	whether the accused dishonestly applied K1,268,778.41 to her own use and to the use of others.

ISSUE NO (1)
WHO FORGED THE COURT ORDER DATED 16 MARCH 2012.
20.	There is no direct evidence as to who drafted the court order of 16 March 2012.  There is also no direct evidence as to who took out this order had it signed, sealed and served.  The evidence of the Registrar Supreme Court and National Court Ian Augerea, by way of statement dated 12 December 2012, and which is marked as Exhibit U in these proceedings, is only proof of the fact that the court order dated 16 March 2012 was a fraudulent document.  The evidence of Kwara Giriwa (Exhibit V) and Robert Mellor (Exhibit T) all go to show that the court order of 16 March 2012 was fraudulent.

21.	The evidence of the subject court order came from Alphonse Sonu.  His evidence was that on 6 August 2012 a Peter Waieng and the accused came to the Bank to see him with the subject court order.  Whether the court order was held by Peter Waieng or the accused is immaterial.  This is because the purpose for which Peter Waieng and Janet Oba were at the Bank to see Alphonse Sonu was in relation to the court order and to deliver the court order to the Bank.  They went to see Sonu together.  Janet and Peter both knew J & J account was frozen.  Janet said she was simply asked by Peter Waieng to accompany him to the bank to see Sonu regarding the company account.  She said she did not know why Peter told her to go with him.  Janet knew then that the company account was frozen by order of the court.  Why then would Janet simply stroll along to the bank to see Sonu to make inquiries about the company account which was frozen?  

22.	Janet said when they went in to the bank to see Sonu she was seated on a couch at the time when Peter Waieng approached Sonu and she said she saw Peter Waieng passing some documents to Sonu and over heard Peter saying to Sonu to direct the document to a bank lawyer by the name of Robin Kawat.  Janet here is distancing herself from the actions of Peter Waieng.  She did not want to know what document Peter was giving to Sonu.  I ask myself – is that real?  Could she not be interested in what document Peter had?  Is it real that Peter did not tell her the nature of their visit to Sonu?  Who in all reality would just tag along for nothing?  She is the one who was taken to court and was a party to the proceedings and she was and is the signatory to the bank account on her own.  She was not interested?  Was it not in her interest to know what documents Peter Waieng was passing on to Sonu?  I would have thought she would be very interested and at the same time excited about seeing Sonu.

23.	The fact that she was the sole signatory to the company account and the sole shareholder and director of the company and that the company account then, she very well knew, was frozen and that there was K1, 268, 778.41 in that account and that they were in the Bank on the 6 August 2012, with the prospect of having access to the company’s bank account once more in my respectful opinion is incentive enough for Janet Oba to be there.  

24.	Moreover the false order was in relation to proceedings described as OS No. 30 of 2010, the parties being The Public Prosecutor as the plaintiff and Janet Oba, the defendant.  For those reasons alone I have no doubt in my mind that Janet Oba knew about the court order of 16 March 2012 and she knew why she and Peter Waieng came to see Alphonse Sonu.  I also have no doubt that she knew of the court order before her record of interview, as the time she first heard of the false court order.

25.	The critical question on the issue of this forged court order is – who forged the court order?  Was Janet Oba Involved?  There is a suggestion that lawyer Robin Kawat forged the court order with the help of Peter Waieng.  There is a strong probability that Robin Kawat forged the court order with the help of Peter Waieng and Janet Oba.  It is also possible that Terence Soweni was involved in this scam as well.

26.	There are a number of people who could have forged the false court order of 16 March 2012 namely Robin Kawat, Peter Waieng, Terence Soweni and Janet Oba.  There is a high likelihood that all these named people conspired to manufacture the subject court order.  There was plenty of money in the company account to go around.

27.	A lot of money was still in the J & J account.  The money was to be forfeited to the State but had not been transferred.  It was almost forgotten money.  It need someone to come up with a way to take the money out.  The account was frozen by a Court order.  It needed another court order to free the money to be taken out.  The court order was then manufactured.  I have no doubt in my mind that Peter Waieng, Janet Oba and Robin Kawat had a hand in planning the manufacture of the false court order, but I do not know who actually manufactured the court order of 16 March 2012 to make it look genuine.

28.	The accused gave evidence that on 21 September 2012, Peter Waieng called her from BSP, Port Moresby and told her that they could access the company account.  The fact of the matter at that time was that the money in the company account was not the company’s.  The money in the company account was forfeited to the State.  The accused knew that fact.  The company had no money to access for itself.  The money still in the frozen company account belonged to the State.  However the false court order of 16 March 2012 set aside the consent order of 19 July 2010.

29.	The accused and her daughter Abigail’s story that when they arrived at the bank on 21 September 2012, they were met at the car park by Peter Waieng and he asked her to sign a debit slip for the amount of K1, 154,643.35 which debit slip had already been prepared and that she refused to sign it.  She said she told Peter Waieng that there was a court order in place and that she did not want to do anything wrong was not right.  Janet also said she asked Peter Waieng who told him he could access the company account and that Peter replied harshly saying in pidgin – “Janet, benk loiya toktok yah, yu loiya ah?”.  That story with respect by Janet and her daughter Abigail is a recent invention in my respectful opinion.  It is a recent invention because Peter Waieng had no reason to say that.  It was not the bank lawyers who made it possible to access the account.  With respect it was the court order of 16 March 2012 that made it possible to access the account, not the bank lawyers.

30.	Peter Waieng could have said -  “you remember the document I gave to Alphonse Sonu on 6 August 2012.  That was a court order.  Robin Kawat and the bank lawyers have confirmed that the court order is genuine and that this court order replaces the court order that you are talking about.  It is clear now for us to access the account”.  Peter Waieng could have calmly told her that rather than the confrontational way told by Janet and her daughter.  The story was purposely told this way to make believe the court that she was not aware of the court order of 16 March 2012 until the time of her record of interview.

31.	Janet could have asked to see the copy of the court order to put her mind at rest that a court order was now in place for her to have access to the company account.  How is it that she was the defendant in the proceedings OS 30/10 and yet she did not want to see or know of a copy of the court order that cleared her way to the account.  Rightfully she was the beneficiary of the court order of 16 March 2012 and yet she did not see it, know about it until the day she was interviewed and charged.  To me and with respect this is absurd and cannot be true.  In my respectful opinion she already was aware of the fraudulent court order and she knew it was false.  That is why she did not want to see and know about the court order at the bank on 21 September 2012.  If it is true she was not aware of the court order of 16 March 2012 she would have asked to see the court order herself on 6 August 2012 or on 21 September 2012 before being satisfied that it was indeed alright and in order for her to withdraw the funds from the company account.  Her police officer instincts would have alerted her to do these checks first before accessing the account and the funds in the account.  Yet she did not see the court order that made it possible for her to access the company accounts.  With respect I must find that she was aware of the court order that forfeited the money in the company account to the State.  Again with respect I find that she was also aware of the court orders that froze the company account and that is why she did not have access to the company account for so long about 2 years.

32.	      Having said all these things I still do not know who forged the court order.  In the end result I am not satisfied beyond reasonable doubt that Janet Oba forged the court order.  I find she was involved in planning such an order but I cannot be sure if she forged the order.  Accordingly I find her not guilty to the count of forgery.

ISSUE NO (2)
WHO UTTERED THE COURT ORDER DATED 16 MARCH 2012.
33.	      I have already discussed this issue earlier in relation to the first issue.  I have found that Janet Oba knew about the falsified court order of 16 March 2012 and knew why they were there at the bank to see Alphonse Sonu on 6 August 2012 and on 21 September 2012.  This is because she was the sole signatory to the bank account of J & J and anyone in her position as the sole signatory to the company’s bank account and also a party in proceedings OS 30 of 2010 directly relating to this matter would be eager to know the reason or reasons to be at the bank.  I find it hard to believe she did not know about the falsified court order of 16 March 2012 and why she was required at the bank on 21 September 2012.

34.	       Peter Waieng is said to have had the falsified court order of 16 March 2012 and presented it to Alphonse Sonu on 6 August 2012.  The act of giving the court order to Sonu is what constitutes uttering.  The State did not in their pleadings include Sections 7 and 8 of the Criminal Code nor did they have the accused charged with conspiracy to commit a crime under Section 515 of the Criminal Code.    In the end result I find that Peter Waieng uttered the forged court order of 16 March 2012 to Alphonse Sonu.  I find also that Janet Oba was also present when the document was uttered and I find that she knew what the document was and why it was given to Sonu.  As the State did not invoke Sections 7 and 8 of the Criminal Code and did not charge her for conspiracy to commit a crime.  I find her not guilty to the charge of uttering.  

ISSUE NO (3)
DID JANET OBA DISHONESTLY APPLY K1, 286,000.00 TO HER OWN USE AND TO THE USE OF OTHERS.

35.	For the charge of misappropriation the State must prove beyond reasonable doubt that:
a)	Janet Oba
b)	on (date)
c)	at (place)
d)	dishonestly applied
e)	to her own use and to the use of others
f)	property or money
g)	belonging to the State.

36.	Janet Oba does not dispute elements a), b), c), e), f) and g) of the charge.  She however disputes element d) of the charge which relates to whether her use of the money was dishonest.

ELEMENT OF DISHONESTY
37.	As the evidence has unfolded and I have canvassed much of the evidence in relation to the charges of forgery and uttering I found that she was aware of the forged court order of 16 March 2012.  I do not believe her story that she was not aware of the forged court order.  As to who forged the court order I do not know who forged the court order.  As to who uttered the forged court order, I found that Peter Waieng uttered the forged court order.  However I found that Janet Oba was not an innocent bystander at the bank not knowing what was going on.  Instead I found that she knew about the forged court order and she was part of the plan to have the false court order validated by Robin Kawat.  In other words her presence at the bank on 6 August 2012 and 21 September 2012 was not innocent nor was it forced upon her by Peter Waieng, her late brother.  She and her daughter Abigail were present at the bank by design and not by chance or coercion.  I therefore do not believe her story that she was seated on a couch and did not know what was happening between Peter Waieng and Alphonse Sonu.  Strangely enough she only over heard Peter Waieng telling Sonu “to direct it to a particular lawyer so he could fast track the process”.  With respect as well, I do not believe the story of Abigail as I find that, that part of the Janet and Abigail’s story was a recent invention.

38.	So far I have found:- 
i)     Janet Oba herself did not forget the court order of 16 March 2012.
ii)	    Janet Oba was aware of the forged court order of 16 March 2012 on 6 August 2012
iii)   Janet Oba’s presence at the bank to see Alphonse Sonu on 6 August 2012 and 21 September 2012 was designed and not an accident, coincidental or was coerced.  
All these findings show that she and Peter Waieng were prepared to first of all use deception to have access to J & J account.  Secondly when Janet and Peter finally had access to the company account they used the money for Janet and Peter’s purposes and not for purposes of building a jetty at Wutung in West Sepik Province.  Thirdly, she and Peter Waieng knew then, that the money held in the J & J account no. 1001553407 was given back to the State and no longer the company’s or their money.  Janet and Peter used deception to get to the money that no longer belonged to them.  How and for what Janet and Peter used the money for after that amounted to dishonestly applying the money for the use of Janet and Peter.

39.	The money in the first place which belonged to the State was disbursed by the State for the purpose of building the Wutung Jetty in the West Sepik Province.  The Wutung Jetty was never built and still remains not built.  In other words the money was not used for its intended purpose, rather it was dishonestly used by Janet Oba and Peter Waieng for their own purposes.  See Kindi Lawi v The State (1987) PNGLR.

40.	The K1, 268,778.41 which was in the J & J bank account with BSP was forfeited to the State by consent orders endorsed by the court on 19 July 2010.  Those monies lawfully remained State’s monies by virtue of the consent orders until the falsified and unlawful court orders of 16 March 2012 came about and unlawfully restored ownership of the money to J & J Construction Ltd.  The monies from 21 September 2012 were then unlawfully withdrawn until the BSP was alerted of the false court order by the Proceeds of Crime Unit in the Public Prosecutor’s office in October of 2012.

41.	Jane Oba agreed she signed the debit and withdrawal slips from about 21 September 2012 to 19 October 2012 after the freeze on J & J account no. 1001553407 was lifted pursuant to the falsified court order of 16 March 2012 by the bank.  

42.	She said the monies were withdrawn to be paid to the J & J workers as their salaries and outstanding payments (See Exhibit F).  She also said some of the money was withdrawn for J & J administration costs, stationeries, fuel and salaries (Exhibit F page 1010) and also for work related items, office rent and some other things which Peter Waieng did (Exhibit F page 104) and the last withdrawal was a payment to the Public Prosecutor (Exhibit F page 105).  She herself got no more than K2, 000.00 at a time for food and fuel when money were withdrawn.

43.	The fact of the matter is that any withdrawal of the money from J & J account no. 1001553407 from 21 September 2012 and 19 October 2012 by Janet Oba and Peter Waieng was by deceit and therefore dishonest.  The monies could not be withdrawn for the company’s purposes or for administration purposes or for any other purposes including for the use of the accused or Peter Waieng.

44.	In the State v Gabriel Ramoi (1993) NGLR 390 this court when considering what dishonesty meant said

	“[The] word ‘dishonestly’ in Section 383A of the Criminal Code relates only to the state of the mind of the person who does the act which amounts to misappropriation.  The state of mind when a person applies property is a question of fact for the trial judge to determine on all of the facts presented before him.  And when the judge considers the facts on how the property was applied, he uses the ‘ordinary standards of reasonable and honest people’ test to determine whether or not the property so applied was dishonestly applied.  ‘Dishonest’ is defined in the Oxford Advanced Learners Dictionary of Current English as “intended to cheat, deceive or mislead”.”

45.	In the State v Francis Laumadava (1994) PNGLR 291 Injia (as he then was) said:
		“The Court must look into the mind of the accused and determine whether, given his 	intelligence and experience, he would have appreciated as right minded people would 	have done, that what he was doing was dishonest.”	

46.	In considering the evidence as it unfolded before me and given the tests to be applied, that is the reasonable and honest people test and given her intelligence and experience whether she would have appreciated, as a right minded person would have done, that what she was doing was dishonest and having considered and discussed all that evidence I am in no doubt using the ordinary standards of reasonable and honest people test that she knew what she was doing was dishonest.  

47.	I consider that according to the ordinary standards of reasonable honest people of PNG, what Janet Oba did was dishonest.  I am of the opinion that she must have known that her conduct and actions were dishonest.  She knew and ought to have known that ordinary people would consider her conduct and action as dishonest.  

48.	Applying the relevant test I am sure Janet was acting dishonestly because I see no reason why a woman of her intelligence, experience and her position as a police officer would not have appreciated, as right minded people and a right minded police woman would have done, that what she was doing was dishonest and wrongful conduct.

49.	In the end result taking into account all the evidence I find Janet Oba guilty of dishonestly applying to her own use K1, 286, 000.00 property belonging to the State.

__________________________________________________
Public Prosecutor:  Lawyer for the State
Nidue & Associate Lawyers:  Lawyer for the Prisoner