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State v Kaniku [2017] PGNC 10; N6595 (23 January 2017)

N6595

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NOs. 14 & 15 OF 2016

THE STATE

MUMBI KANIKU & HELEN OVE

Waigani: Cannings J
2016: 9, 10, 11, 12, 16, 19, 30 May
2017: 23^rd January

CRIMINAL LAW – OFFENCES – misappropriation, Criminal Code, Section 383A(1) – elements of offence – meaning and proof of dishonesty.

Two accused were charged with misappropriation. They were the only shareholders and directors of a company that was paid K493,240.00 of government money, in advance, pursuant to a written contract to ship flood-relief food supplies from Central Province to Gulf Province. Their company failed to ship the supplies, most of the food perished and only a small proportion found its way to the required destination. Both pleaded not guilty and a trial was conducted.

Held:

(1) The elements of an offence under Section 383A(1)(a) are that a person:

(i) applies;

(ii) to his or her own use or to the use of another person;

(iii) property;

(iv) belonging to another person;

(v) dishonestly.

(2) The first four elements were non-contentious in that the accused, having received, through their company, government money, (being ‘property’ (iii) that ‘belonged to another person’ (iv)), intended to be used for shipping of food supplies, deposited it into their company’s bank account and withdrew the bulk of it for purposes other than shipping the food supplies (‘applied’ (i) it to their own use or ‘to the use of others’ (ii)).

(3) The final element, which required the State to prove that the accused applied the money dishonestly (v), was contentious.

(4) Element (v) requires the court to be satisfied that the accused applied the property “dishonestly” to his own (or another’s) use. It is a question of fact for the trial Judge to determine, based on the facts of the case and according to the ordinary standards of reasonable and honest people (Brian Kindi Lawi v The State [1987] PNGLR 183).

(5) Here the evidence showed that a large amount of government money was wasted due to a decision-making process lacking in due diligence and undertaken by incompetent government officials, which allowed the accuseds’ company to be paid in advance for a service it was in no position to provide. However, it was apparent that the accused had made a genuine, if hopelessly inadequate, attempt to get their company in a position to be able to provide the service it had been contracted to provide. There was insufficient evidence of an intention to defraud the State or to collude with government officials to enter into a scam or bogus scheme. The State was unable to prove, beyond reasonable doubt, the element of dishonesty.

(6) As dishonesty was an essential element of the offence, each accused was found not guilty.

Cases cited:

The following cases are cited in the judgment:

Brian Kindi Lawi v The State [1987] PNGLR 183
Havila Kavo v The State (2015) SC1450

TRIAL
This was the trial of two accused charged with misappropriation of property under Section 383A(1)(a) (misappropriation of property) of the Criminal Code.

Counsel:
S Dusava, for the State
D Wapu, for the Accused

23^rd January, 2017

CANNINGS J: The two accused, Mumbi Kaniku and Helen Ove, were charged with misappropriation of property. They were husband and wife. They were the only shareholders and directors of a company, West Coast Shipping Services Ltd, that was paid K493,240.00 of government money, in advance, pursuant to a contract to ship flood-relief food supplies from Central Province to Gulf Province. Their company failed to ship the supplies, most of the food perished and only a small proportion found its way to the required destination. They are each charged with misappropriation of the sum of K493, 240.00, the property of the Independent State of Papua New Guinea, which, it is alleged, they dishonestly applied to their own use and the use of others. Both pleaded not guilty and a trial was conducted.

UNDISPUTED FACTS

A number of undisputed facts have emerged from the evidence:
- In June 2014 heavy rain caused flooding in various parts of Gulf Province, a natural disaster was declared and the Gulf Provincial Government sought and was granted funding from the National Government to provide flood-relief food supplies to people living in the affected areas.
- On 5 September 2014 West Coast Shipping Services Ltd and the National Department of Provincial Affairs and Local-level Government (through the ‘Gulf Disaster Committee’) entered into a written contract under which the company was engaged as a service provider to provide transportation services with a “seaworthy vessel, fully certified” to “deliver much needed relief cargo to the [areas] identified by the Gulf Provincial Disaster Co-ordinator”. The value of the contract was K300,382.50. The contract was signed by the first accused, Mumbi Kaniku, in his capacity as Managing Director of West Coast Shipping Services Ltd and Jerry Hape, Disaster Co-ordinator, Gulf Provincial Government. The contract was performed according to its terms: the money was paid to the company and it provided the required transportation services. No complaint arose as to the company’s performance.
- In November 2014 Mr Hape again engaged West Coast Shipping Services Ltd to provide sea transport to ship four container loads of flood-relief supplies to Gulf Province, through a new written contract, described as a “service agreement”. On 22 December 2014 a government cheque for the sum of K493,240.00 was deposited into West Coast Shipping Services Ltd’s account at ANZ Bank, Port Moresby.
- West Coast Shipping Services Ltd was established by the accused in 2007. The company is a facilitator of shipping services. It does not own or operate its own ships.

LAW

The offence with which the accused are charged is created by Section 383A (misappropriation of property) of the Criminal Code, which states:

(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.

(1A) Notwithstanding Subsection (2), an offender guilty of the crime of misappropriation shall be sentenced —

(a) to imprisonment for a term of 50 years without remission and without parole, if the property misappropriated is of a value of K1 million or upwards, but does not exceed K10 million; and

(b) to life imprisonment if the property misappropriated is of a value of K10 million or upwards.

(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) where the offender is a director of a company and the property dishonestly applied is company property; or

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

(c) where the property dishonestly applied was subject to a trust, direction or condition; or

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

(3) For the purposes of this section—

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person's application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person's application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it.

The accused were charged under Section 383A(1)(a), which provides:

A person who dishonestly applies to his own use or to the use of another person ... property belonging to another ... is guilty of the crime of misappropriation of property.

The elements of this offence, as stated by the Supreme Court in Havila Kavo v The State (2015) SC1450, are that the accused has:

(i) applied;
(ii) to his or her own use;
(iii) property;
(iv) belonging to another person;
(v) dishonestly.

ISSUES

The first four elements are non-contentious in that the accused:
- having received, through their company, government money, (being ‘property’ [iii] that ‘belonged to another person’ [iv]), intended to be used for shipping of food supplies,
- deposited it into their company’s bank account and withdrew the bulk of it for purposes other than shipping the food supplies (‘applied’ [i] it to their own use or ‘to the use of others’ [ii]).
The final element, which requires the State to prove that the accused applied the property dishonestly [v], is contentious.

Proof of dishonest application of another person’s property requires a determination of the state of mind of the accused at the time of application of the property. It is a question of fact for the trial Judge to determine, based on the facts of the case and according to the ordinary standards of reasonable and honest people (Brian Kindi Lawi v The State [1987] PNGLR 183). A subjective test must be applied: it must be proven beyond reasonable doubt that the accused in fact knew that he or she was acting dishonestly. However, in applying that test, an objective standard can be taken into account: it might reasonably be inferred that the accused must in fact have known that he or she was acting dishonestly.

DID THE ACCUSED ACT DISHONESTLY?

This issue is addressed in relation to both of the accused. Neither the prosecution nor the defence sought to distinguish between them.

Outline of evidence

The State’s case is based on the oral testimony of Mr Hape and five other witnesses, plus documentary evidence consisting of:
- the written contract, dated 5 September 2014, between West Coast Shipping Services Ltd and the National Department of Provincial Affairs and Local-level Government (through the ‘Gulf Disaster Committee’) [exhibit P1];
- ANZ Bank deposit slips, cash cheques, account statements and other documents re the West Coast Shipping Services Ltd account [exhibits P2, P3, P9-P34];
- written correspondence between West Coast Shipping Services Ltd and Mr Hape [exhibits P4, P5];
- Police statement by Richard Mendani MP, Member for Kerema Open [exhibit P6];
- company extract of West Coast Shipping Services Ltd [exhibit P7];
- record of interview, second accused, Helen Ove [exhibit P8];
- the written contract, dated 9 December 2014, between West Coast Shipping Services Ltd and ‘Gulf Provincial Government – Disaster Committee’, under which West Coast Shipping Services Ltd received the sum of K493,240.00, totally “prepaid” in accordance with the terms of the contract [exhibit P35].
The Court refused to admit into evidence the record of interview of the first accused, Mumbi Kaniku, after a voir dire(a separate hearing within the trial to determine admissibility of evidence) in which an objection based on unfairness was upheld. A similar objection to the record of interview of Helen Ove was dismissed.
For the defence:
- Mumbi Kaniku gave sworn evidence, both in the voir dire and the trial proper;
- Helen Ove gave sworn evidence in the voir dire, but in the trial proper she exercised her constitutional right to remain silent.
Three documents, tendered by the defence, were admitted into evidence:
- Police statement of State witness, Jerry Hape, argued to be a prior inconsistent statement;
- Police statement of State witness, Oliver Kelly, argued to be a prior inconsistent statement;
- a document entitled “West Coast Shipping Services Ltd Break-up Charter 2 Gulf Disaster”, prepared by Mr Kaniku.
Details of the evidence follow.

Evidence for the State

Oral testimony

Six witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	Jerry Hape	Disaster Co-ordinator, Gulf Provincial Government
Evidence
He is responsible for co-ordinating relief services and supplies in the event of a natural disaster – he sources funds from the provincial government in the first instance, if none available a submission is made to the National Disaster Office within the Department of Provincial and Local-level Government Affairs. When funds became available for flood relief in 2014 he approached Mumbi Kaniku, who he knew from previous engagements of his company, West Coast Shipping Services Ltd – he signed, on behalf of the Provincial Disaster Committee, in September 2014 a contract with West Coasting Shipping Services Ltd in relation to the first ship of food relief supplies. For the second engagement of West Coast Shipping Services Ltd, there was no written contract, just an oral agreement with Mr Kaniku, which followed written correspondence in which Mr Kaniku provided a quote and pro-forma invoice for K493,240.00to ship four containers, containing food (flour, rice, noodles, tea, tinned fish etc), from the wharf at Tubusereia, Central Province, where the containers were located, to Kerema, Gulf Province – he (Mr Hape) accepted the quote and made available a cheque for that amount, payable to West Coasting Shipping Services Ltd, to Mr Kaniku. Mr Hape had procured the food in Port Moresby and trucked it to Tubusereia, on Mr Kaniku’s advice, for storage, before it was to be shipped to Kerema. However, the containers were never shipped to Kerema and most of the food perished – he (the witness) was in Port Moresby from November 2014 to January 2015, following up on the shipment that never happened – he made countless phone calls to Mr Kaniku who kept telling him that he was waiting for a ship to come from Western Province – he (Mr Hape) drove at least once a fortnight from Port Moresby to Tubusereia to check the containers. It was an unsatisfactory situation, caused by Mr Kaniku – the member for Kerema, Hon Richard Mendani MP,found out about the problems and took the matter to the media in March 2015 – as a result he was told to get the food to Kerema by road transport – he did that, but most of the food had perished by then – in his view, Mr Kaniku had never given a proper explanation for the failure of West Coasting Shipping Services Ltd to transport the containers. In cross-examination he conceded that Mr Kaniku arranged for at least one truckload of food to be taken from the containers at Tubusereia to Kerema – but most of the cost of transporting the food by truck was met by Gulf Provincial Government. It was put to the witness that Mr Kaniku paid a lot of money to Police who came from Gulf Province to provide security for the containers at Tubusereia as the containers were at risk of being tampered with by local landowners who were complaining that they were not being paid for storage costs at the wharf – Mr Hape denied knowledge of those issues.
2	Oliver Kelly	Shore mechanic, Tubusereia wharf
Evidence
He is a shore mechanic or machinery fitter by trade – he was employed by Samson Jubi, a lawyer who also runs a shipping business, Mundi No 1 Ltd – Mr Jubi’s ship, MV Burai, was docked at Tubusereia in late 2014 – he came to know who Mr Kaniku was as he would often come to Tubusereia to check on the containers in which food was stored. Judge’s note: the evidence of this witness was of minimal relevance and probative value.

3	Allan John	Employee of Mundi No 1 Ltd
Evidence
He was working at Tubusereia wharf from September 2014 to March 2015 – he observed Mr Kaniku and Mr Hape coming to the wharf from time to time to check on the containers in which the food was stored – in March 2015 he observed some of the food being put on trucks – he was told that the food was being trucked to Kerema. Judge’s note: the evidence of this witness was of minimal relevance and probative value.
4	Snr Const Kila Tali	Member, Police Force, NCD Fraud Squad
Evidence
He was involved in the police investigation of alleged misappropriation of Gulf Provincial Disaster funds by the two accused – Police acted on a complaint by the Member for Kerema Open, Hon Richard Mendani MP – he was the interrogator in the interview of the second accused, Ms Ove – he gave evidence for a voir dire on the question of admission into evidence of the record of interview of Helen Ove – he stated that he said nothing untoward to the witness – he was not overbearing and the accused gave her answers to questions voluntarily. Judge’s note: this evidence was largely accepted and the record of interview of Helen Ove was admitted into evidence.
5	Snr Const Derrick Francis	Member, Police Force, NCD Fraud Squad
Evidence
He was involved in the police investigation of alleged misappropriation of Gulf Provincial Disaster funds by the two accused – he was the corroborator in the interview of the second accused, Ms Ove – he gave evidence for a voire dire on the question of admission into evidence of the record of interview of Helen Ove – he stated that he said nothing untoward to the witness – he was not overbearing and the accused gave her answers to questions voluntarily. Judge’s note: this evidence was largely accepted and the record of interview of Helen Ove was admitted into evidence.
6	Tony Vagi	Risk and compliance officer, ANZ Bank
Evidence
He is responsible for processing Police requests for banking records, for the purposes of criminal investigations – in the present case he was served with a search warrant and complied with the warrant in accordance with his duties – he knew of the accused, Helen Ove, as she worked for ANZ Bank at the time, but did not know her well and was unaware of the details of the charge against her – he is from Tubusereia village and he read in the newspapers about the rotting food in the containers at Tubusereia wharf – he had no special knowledge of the case or the allegations against the two accused. Judge’s note: it was through this witness that the ANZ Bank records[exhibits P2, P3, P9-P34] were tendered, and admitted into evidence.

Documentary evidence

The bank records of West Coast Shipping Services Ltd [exhibits P2, P3, P9-P34] is a significant body of evidence. It shows that:

prior to the deposit of the cheque for K493,240.00 on 22 December 2014, the account had a credit balance of K138.30;
a deposit styled as “PMT refund” of K16,306.84 was made on 29 December 2014;
on 30 December 2014 there was a cash withdrawal of K200,000.00;
by 11 February 2015 there had been no further deposits and the account had a credit balance of K61.14;
significant cash withdrawals were made in that period, in addition to the K200,000.00 cash withdrawal of 30 December 2014:

02.01.15: K10, 000.00

06.01.15: K20, 000.00

06.01.15: K10, 000.00

07.01.15: K10, 000.00

08.01.15: K10, 000.00

12.01.15: K5, 000.00

12.01.15: K8, 000.00

16.01.15: K5, 000.00

21.01.15: K5, 000.00

29.01.15: K10, 000.00

30.01.15: K2, 000.00

Total = K100, 000.00

Thus in the space of six weeks, from 29 December 2014 to 11 February 2015, all of the proceeds of the cheque for K493, 240.00 were used and at least K300, 000.00 (close to 60%) of the proceeds was withdrawn in cash.

Evidence for the defence

Oral testimony

Both accused gave sworn evidence in the voir dire. As to the substance of the charge only Mumbi Kaniku gave evidence. Helen Ove remained silent.

No	Witness	Description
1	Mumbi Kaniku	First accused, Managing Director, West Coast Shipping Services Ltd
Evidence
Voir dire evidence: he was confused and misled as to his constitutional rights by the Police and he was interviewed when he was greatly stressed. Judge’s note: the first accused’s voir dire evidence was largely accepted, resulting in the objection to admission of the record of interview being upheld. Evidence as to substance of the charge: His company was engaged in November 2014, following the successful arrangement of September 2014 – the job that they were engaged to do had previously been awarded to the company belonging to Samson Jubi – Jerry Hape asked him (the accused) to provide a quote, so he responded with a quote for K493,240.00, which was accepted. A written contract was drawn up and a cheque was drawn in favour of West Coast Shipping Services Ltd for that amount and deposited into the company’s account at ANZ Port Moresby on 22 December 2014. They were overwhelmed by many problems in transporting the food supplies: landowners at Tubusereia locking the gates to the wharf due to non-payment by other shipping companies of wharfage fees; large amounts of money being paid to Jerry Hape and Police from Kerema for their accommodation at Hideaway Hotel and allowances and expenses; the ship that they engaged, MV Emily, to transport the food supplies incurred propeller damage when in service at Daru, and did not arrive in time before the issue was raised in the media and a National Executive Council investigation team arrived and alternative transport arrangements were made. It was a big mess created by Gulf Provincial Government – they tried to get him and his company to clean up their mess but they did not cooperate properly – Jerry Hape kept hounding him for cash – when he (the accused) would not pay, Mr Hape got him and his wife arrested. He prepared the document entitled “West Coast Shipping Services Ltd Break-up Charter 2 Gulf Disaster” [exhibit D3], which was his explanation of how K436,760.00 of the proceeds of the government cheque for K493,240.00 was applied. Individual cost items recorded as K40,000.00 or more were: K60,000.00: “Paid Shalom Hire Car from engagement 9/11/2014”; K60,000.00: “Deposited vessel MV Iyapa – Balimo Development Corporation, managed by WAM Maritime Services Ltd”; K50,000.00: “Paid for crane/truck – Bena Construction Ltd – per discharge Kerema Wharf-ex POM”; K49,225.00: “Teshuvah Worship Centre – tithing”; K40,000.00: “Paid Jerry Hape to pay landowners to get access to Tubusereia wharf – due to non-payment of rentals by Samson Jubi”. In cross-examination he stated that West Coast Shipping Services Ltd is a small business – at the time of the contracts with the Gulf Provincial Disaster Committee, it had only two full-time employees, an operations manager and a driver – when it secures big jobs, such as the one at the centre of this case, it engages casual employees – he conceded that he had prepared exhibit D3 for the purposes of the trial, to explain where the money went – he was unable to present any invoices or receipts to corroborate the payments – the payment of K49,225.00 was a tithe given to his church.
2	Helen Ove	Second accused, Director, West Coast Shipping Services Ltd
Evidence
Voir dire evidence: her evidence was similar to that of the first accused as to the circumstances of their interviews – however they were separately interviewed. Judge’s note: the Court, though dismissing the objection to admission of the record of interview on the ground of involuntariness, did not reject outright the second accused’s evidence and did not make any adverse finding as to her credibility as a witness.

Exhibits

D1: Police statement of State witness No 1, Jerry Hape – admitted into evidence after being tendered by the defence as a prior inconsistent statement – however, it is of little significance as it does not significantly contradict Mr Hape’s oral testimony – he blames West Coast Shipping Services Ltd for the failure to provide the services it had been contracted to provide.

D2: Police statement of State witness No 2, Oliver Kelly – admitted into evidence after being tendered by the defence as a prior inconsistent statement – however, it is of little significance as it does not significantly contradict Mr Kelly’s oral testimony, and, in any event, Mr Kelly’s evidence was of little relevance and probative value.

D3: The document entitled “West Coast Shipping Services Ltd Break-up Charter 2 Gulf Disaster”, prepared by Mr Kaniku., tendered through him when he gave evidence of distribution or ‘break-up’ of the proceeds of the government cheque for K493,240.00 deposited into West Coast Shipping Services Ltd’s account at ANZ Bank, Port Moresby.

Did the accused act dishonestly?

For the purpose of determining this question, I make the following observations, which I am driven by the evidence to make. A large amount of government money was wasted due to a decision-making process lacking in due diligence and transparency and undertaken by incompetent government officials, especially Mr Hape, which allowed the accuseds’ company to be paid in advance for a service it was in no position to provide.
There are many questionable and suspicious aspects of the arrangements between, on the one hand, the Gulf Provincial Disaster Committee and Mr Hape in particular, and, on the other hand, West Coast Shipping Services Ltd and Mr Kaniku in particular (Ms Ove appears to have had a minimal practical role and was rarely mentioned in the evidence):
- Why would any right-thinking, competent and honest government official whose task it was to get urgently required food supplies to a remote location, engage a company like West Coast Shipping Services Ltd, which was little more than a shelf company with no established corporate or logistical structure, which owned no ships and had no ready access to ships?
- Why would any right-thinking, competent and honest government official sign a contract with such a company, which included a clause for immediate up-front payment?
- Why were the goods transported by road to Tubusereia and stored at a place entirely unsuited to food storage?
- Why was their no competitive tender or any quotes sought from any company other than West Coast Shipping Services Ltd (there being no evidence or suggestion of any competition for the job)?
- Why weren’t quotes sought from large, reputable and reliable shipping companies based in Port Moresby?
I now focus on Mr Kaniku. He is the primary accused. Though both the prosecution and the defence failed to distinguish Mr Kaniku’s conduct from that of Ms Ove, they need to be dealt with separately. Ms Ove played a minimal, secondary role and was rarely mentioned in the evidence. She was a co-signatory with Mr Kaniku to the bank account and she signed all cheques drawn against the account, including the cheques used to make large and under-explained and suspicious cash withdrawals. However, I see no way in which Ms Ove could be determined to have acted dishonestly, unless and until it is shown that Mr Kaniku acted dishonestly.
There are many questionable and suspicious aspects of the way that West Coast Shipping Services Ltd – which means Mr Kaniku – conducted its business:
- Why were so many large withdrawals made in cash?
- Why did Mr Kaniku not take the opportunity to present the business records of the company?
- Why no receipts or invoices?
The State must prove beyond reasonable doubt that Mr Kaniku acted dishonestly when he applied a substantial part of the sum of K493,240.00 to his own use or to the use of other persons.
The evidence of many questionable and suspicious aspects of the arrangements between, on the one hand, the Gulf Provincial Disaster Committee and Mr Hape in particular, and, on the other hand, West Coast Shipping Services Ltd and Mr Kaniku and the evidence of many questionable and suspicious aspects of the way that Mr Kaniku conducted the business of West Coast Shipping Services Ltd provide the foundation on which it can be inferred that Mr Kaniku was acting dishonestly.
Applying an objective standard, it could be reasonably inferred that an honest business person in Mr Kaniku’s position would not conduct arrangements with a governmental body in the way that he did (insisting on up-front payment of such a large amount of public money), and would not do business in the way that he did (making large cash withdrawals and not maintaining proper business records).
It is possible to draw from the evidence an inference that Mr Kaniku should have known that his conduct would give rise to questions as to his motives. But is it the only reasonable inferences to draw from that evidence, that Mr Kaniku knew in his own mind that what he was doing was wrong? That he knew he was acting dishonestly?
No. Those matters have not been proven beyond reasonable doubt. I am not convinced to the required standard of proof. The State’s analysis of the bank account of West Coast Shipping Services Ltd was deficient. Lingering doubt remains that, in fact, the large cash withdrawals were legitimate, and that Mr Kaniku was making a genuine, if hopelessly inadequate, attempt to get his company in a position to be able to provide the service it had been contracted to provide.
There is insufficient evidence of an intention to defraud the State or to collude with government officials to enter into a scam or bogus scheme. If there was some improper arrangement between Mr Kaniku and Mr Hape, they did very well to hide it. The oral testimony of each of them showed that they blamed each other for the mess in which they found themselves. The disaster relief efforts to which they were parties were an unmitigated disaster. An absolute disgrace. The evidence revealed a litany of incompetence on both sides.
However, the evidence does not persuade me that this was a case of fraud or collusion or bribery or some other form of corruption. Incompetence and corruption usually have the same result: the People suffer. I am inclined to conclude that this was a case of incompetence, not corruption.
I find that the State has failed to prove that Mumbi Kaniku acted dishonestly. I find as a consequence that the State has failed to prove that Helen Ove acted dishonestly.

CONCLUSION

Both accused must be found not guilty due to the State’s failure to prove beyond reasonable doubt that either of them acted dishonestly.

VERDICTS

(1) The first accused, Mumbi Kaniku, having been indicted on one count of misappropriation of property under Section 383A(1)(a) (misappropriation of property) of the Criminal Code, is found not guilty of that offence and not guilty of any other offence.

(2) The second accused, Helen Ove, having been indicted on one count of misappropriation of property under Section 383A(1)(a) (misappropriation of property) of the Criminal Code, is found not guilty of that offence and not guilty of any other offence.

Verdicts accordingly,
__________________________________________________________________

Public Prosecutor: Lawyer for the State
Punau & Company Lawyers: Lawyers for the Accused

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