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State v Ande [2018] PGNC 360; N7438 (29 August 2018)

N7438

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 83 OF 2018

THE STATE

V

JOESPH ANDE

Waigani: Miviri AJ
2018: 17^th & 20^th July
28 August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation s383A CCA – Trial – Identification – dishonesty – application undisputed – name in record of interview different– name on oath different – drivers licence with different names –accused incredible witness – falsified identification – dishonesty – guilty of personation – guilty of misappropriation x2– guilty of attempted misappropriation– bail refunded remanded pending sentence.

Facts
Accused falsely represented himself to be one Thomas Martin with intent to defraud Westpac Bank. He deposited two PNG Electoral Commission cheques for the sum of K 41, 000 and K 20, 000 into this account and made withdrawals therefrom. Then he opened an unlimited account also in that name and deposited a cheque of K121, 000 from the Electoral Commission of Papua New Guinea. But attempts to withdraw funds were unsuccessful. The bank discovered his false identity and referred him to Police where he was charged with the offence.

Held
Falsified Identification
Intent to defraud
Dishonesty.
Application to own use.
Guilty of all charges.

Cases Cited
The State v Amoko, [1981] PNGLR 373
The State v Jaminan [1983] PNGLR 318
The State v David Kandakason [1998] Supreme Court Judgement SC558
The State v Palili [2006] PGSC 16; SC848
The State v Bonu & Bonu [1997] PGSC 11; SC528
The State v Lawi [1978] PNGLR 183

Counsel:

W. Malo, for the State
W. Dickson & I. Paileae, for the Defendant

VERDICT

29^th August, 2018

1. MIVIRI AJ: This is the Verdict of a man with multiple identities who opened an account with a commercial bank and deposited two PNG Electoral Commission cheques, withdrew and used the proceeds. He then proceed to deposit a third cheque but did not use the proceeds because he was discovered before he could use it.
   

Short Facts

2. Accused with intent to defraud represented by false drivers licence that he was Thomas Martin opened an account in that name account number 6004731035 with Westpac Bank Limited a choice basic account between the 1^st June 2015 to the 7^th January 2017. Purposely to deposit PNG Electoral Commission cheques for services that was rendered by a Thomas Martin since deceased. Between the 25^th June, 2015 and the 20^th July, 2015 accused deposited a Bank of Papua New Guinea cheque number 107040 in the sum of K 41, 000.00 the property of the Electoral Commission of Papua New Guinea into this account and dishonestly applied to his own use.
   
3. And on the 24^th December 2015 accused deposited a second Bank of Papua New Guinea cheque Number 004679 in the sum of K 20,000.00 drawn by the PNG Electoral Commission made payable to Thomas Martin into the same Westpac bank account Thomas Martin account number 6004731035. And between the 24^th December, 2015 and the 4^th February, 2016 the accused dishonestly applied to his own use this K 20, 000.00 the property of the Electoral Commission of Papua New Guinea.
   
4. And again accused went to Westpac Bank and deposited cheque number 004679 drawn from the PNG Electoral Commission in the sum of K 121, 000.00 into the account Thomas Martin account number 6004731035 between the 1^st December, 2016 and the 7^th January, 2017 and attempted to dishonestly apply the proceeds to his own use the property of the Papua New Guinea Electoral Commission.
   

Charges

5. The first charge was pursuant to Section 488 (1) Personation, "A person who, with intent to defraud any person, falsely represents himself to be some other person living or dead, is guilty of offence that, unless otherwise stated, is a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.
(2)..................."

6. And the second was pursuant to Section 383A, "“(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 five years except in any of the following cases when he is liable to imprisonment for ten years-
(a) where the offender is a director of a company and the property dishonestly applied is company property;
(b) where the offender is an employee and the property dishonestly applied is the property of his employer;
(c) where the property dishonestly applied was subject to a trust. Direction or condition;
(d) where the property dishonestly applied is of a value of K2000 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;

(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 thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into 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;

(d) persons to whom property belongs to 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. “

7. And the last was pursuant to section 4 (1) (a) and (b), "When a person, intending to commit an offence-

(a) begins to put his intentions into execution by means adapted to its fulfilment, and
(b) manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence he is said to attempt to commit the offence.

Issue

8. The issue is whether or not the accused was dishonest?
   
9. In this regard whether or not he was Thomas Martin?
   

State Exhibits

10. The following become exhibits in the prosecution case against the accused;- (i) Exhibit S1 Joseph class 2 driver’s licence number 2017867 ;

(ii) Exhibit S2 Joseph Ande class 6 drivers licence number 1221535;

(iii) Exhibit S3 Thomas Martin driver’s Provisional class one Licence number 1312054;

(iv) Exhibit S4 Joseph Ande Yalduma driver’s Licence number 2017867 attached to personal Identification card named Ande Yalduma Jay;

(v) Exhibit S5 Search Warrant 115 of 2017 attaching Westpac Bank PNG Limited documents;

(vi) Exhibit S6 Search Warrant 111 of 2017 Motor vehicles Insurance Limited (MVIL) attaching print of out Licences;

(vii) Exhibit S7 Search Warrant 2017 of the Central Province Transport Authority (CPTA) Joseph Ande’s Driver’s Licence print out;

(viii) Exhibit S8A record of interview Pidgin Original

(ix) Exhibit S8B English translation of the record of interview.

(x) Exhibit S9 Post Courier newspaper article dated 6^th January 2017.

These are all the exhibits in the state case against which establish the undisputed facts in the case against the accused.

State case

11. The state contends that accused was not entitled to the money because he was not Thomas Martin as he claimed to be. He is in fact Joseph Ande. He falsely pretended that he was when in fact he wasn’t and therefore had intent to defraud. That Thomas Martin was deceased and he was guilty of impersonating. He did not have any entitlement in law to the money firstly the K 41, 000.00, secondly the K20, 000.00 and lastly the K121, 000.00. He was dishonest and therefore applied these moneys to his own use when he was not entitled to. He put his intention to this effect but did not succeed as he was discovered of his real identity before he could use that money in the third attempt.
    

Defence Case

12. The accused on the other hand contends that he is Thomas Martin and that he had an agreement with the Papua New Guinea Electoral Commission through one Thomas Martin Torea who represented on his behalf to enter into the agreement with the former for his container to be used in the 2012 National Elections. And when he received the moneys he was entitled to it and committed no crime. He was honest.
    
13. He gave evidence in defence on oath stating essentially that he was named Ande Thomas Martin and his Christian name was Ande Joseph Thomas Martin. It was long so he shortened it to Ande Joseph and Thomas Martin. That the subject container drawing the use by the PNG Electoral Commission was damaged by ice in Tambul where it was from where they had seen and entered into a agreement in consultation with Late Thomas Martin Torea and himself and so he was entitled in law to what moneys were coming from its use and he did not commit any of the criminal offences charged.
    

Undisputed Facts

14. The following facts after tender of evidence marked as Exhibits were established beyond all reasonable doubt. That the accused had opened an account in the name of Thomas Martin with the Westpac Bank account number 6004731035 a choice basic account and into which he deposited firstly Bank of Papua New Guinea cheque number 107040 made payable to Thomas Martin drawn out by the Papua New Guinea Electoral Commission in the sum of K41, 000.00 which he used. Then again he deposited another bank of Papua New Guinea cheque number 001955 also made payable to Thomas Martin and drawn as in the other by the Papua New Guinea Electoral Commission this time in the sum of K20, 000.00 again which he used.
    
15. Yet again he deposited a third Bank of Papua New Guinea cheque number 004679 with the Westpac Bank. This time he opened a second account also in the name Thomas Martin.
    

Dispute

16. Accused contends that he is genuinely honestly entitled to the moneys as they were legitimately paid to him by the electoral Commission in the work 2012 National General elections because his container was used to store the electoral ballot papers of the electorate. And he was initially paid part in the two cheques set out above and then the third where he was arrested from. The State does not have a case made out beyond all reasonable doubt that he was not Thomas Martin and that he was dishonest and applied these moneys to his own use.
    

State Sworn Evidence

17. Detective Constable Lazarus Ikamata first state witnesses on oath was alerted and drawn to the accused by the Westpac Bank employees. Accused had begun the process of trying to use the funds after depositing cheque number 004679 in the sum of K 121, 000.00 drawn from the PNG Electoral Commission. It was deposited into the account Thomas Martin account number 6004731035. And between the 1^st December 2016 and the 7^th January 2017 he attempted to apply the proceeds to his own use. It was the property of the Papua New Guinea Electoral Commission. He was trying to steal and dishonestly use it for himself. He was not the person he asserted himself out to be as there were no supporting documents such as an agreement entered into between himself and the State through the PNG Electoral Commission. And he had multiple identities and was formally involved in a similar criminal matter with and against the bank. And matter which was set out in the print media in the Post courier article tendered in court. It was merely a media release and was properly to be considered with all other evidence not without.
    
18. Joe Mou, Alofa Sabadi, Patricia Passingan and Delilah Tommarrah all Westpac Bank PNG Limited, "Bank” employees who were tellers, head of Compliance and Investigations holding down senior positions ensuring the service of the bank were the next lot of witnesses who individually gave evidence. From their evidence they were not interested in the outcome of the proceedings one way or the other. They saw the truth as it unfolded to them individually and severely in their line of duty within the bank. And this they recounted in their evidence on oath. All were witnesses of the truth and there was nothing in their evidence to disregard or reject all. Each was firm and substantial in the case against the accused.
    
19. Their evidence is accused was served by Joe Mou teller on duty on that day when he deposited the cheque. He identified himself as Thomas Martin by presenting class one drivers licence 1312054 and deposited the Bank of Papua New Guinea Cheque number 004679 bearing the amount K 121, 000.00 into account number 6004731035. It was a large sum of money so he collected the documents presented and sent them to risk and compliance operations here Patricia Pasingan and Delilah Tommarrah who checked through and found insufficient documents against referred and alerted the police through the informant Constable Ikamata. Patricia Pasingan's evidence is well set out and makes sense in particular K121, 000.00 is a very large sum of money coming out of State funds, on this occasion from the PNG Electoral Commission, so she properly demanded the contract or agreement entered into between the accused and the State for which he was paid that sum of money. Seeing that these documents were not included she stopped clearance of the cheque and advised police.
    
20. It is clear from the evidence of Alofa Sabadi Enquiries Officer with the Bank that the second account she assisted the accused specifically to create and to open was so that he could deposit an amount more than K10, 000.00 restricted by the previous account. In this case it made it possible for the deposit of the K121, 000.00. He produced a provisional driver's licence 1312054 with the name Thomas Martin identifying not Joseph Ande. And the documents which emanated were exhibit S5. Because accused told her he was expecting a large amount more than K10, 000 to come to his account.
    

Assessment credibility of evidence

21. The bank witnesses are tasked in their respective duties to ensure that the bank makes money and there is profit. Therefore the processes it sets and applies do not lie or are incredible prone to risk and sabotage. That is why each officer employee of the bank located at his location where he has performed his duties for the bank has told the truth. Because the bank will not take risks unnecessarily without proper back up and substance. Nor will it employ employees who have no credibility and integrity. There is no evidence in this regard against all these witnesses for the State.
    
22. Their evidence stand out from the Accused because there was no agreement or contract entered into between him and the PNG Electoral Commission that he was indeed entitled to the moneys pursuant. Or of between the deceased Thomas Martin Torea and the PNG Electoral Commission. Let alone a death certificate that indeed he was dead and had given all authority for accused to follow through and pick up the moneys due emanating. Or invoice of the works including confirmation as to how much owed to be paid justifying the lumps of payment of firstly K41, 000. 00 and then of K20, 000.00. And lately the K121, 000.00. There was no letter from Kala Rawali the election manager then as to this effect. As put by Patricia Passingan satisfying the requirements of the Public Finances and Management Act. Coupled with the accused acknowledgment in cross examination that he never entered into an agreement with the PNG Electoral Commission. Nor was he fully aware of it, including that he would pick up any moneys due on it. And all alone he had picked up the cheques posing as Thomas Martin. Not Thomas Martin Torea or Ande Thomas Martin or Ande Joseph Thomas Martin shortens to the last two names.
    
23. He admits that his real name is Joseph Ande and he does not have any other names. He used his Joseph Ande signature on name of Thomas Martin. And he did so because he did not know the signature for Thomas Martin. As the claim would come in the name of Thomas Martin. And that his photocopied licence was given because he had lost the original. And yet licences with name Joseph Ande were with him he did not produce these to identify himself. That he scanned his licence from his computer because the licence issuing office was closed and it was a holiday so scanned under Thomas Martin. As he did not want them to dishonour the cheque. That he did what he did because the man had died already and the cheque would draw the cheque on that and there would be no owner to it, just as well the owner had given him permission to take it. These are excerpts from his record of interview tendered into evidence by consent.
    
24. Contrasted with Exhibit S5 letter from the Electoral Commissioner Patilias Gamato dated the 20th January 2017 to Westpac it is clear the he has requested Westpac to restrict the processing and payment of the cheque to Mr Thomas Martin because few senior Staff conspired with Mr Thomas Martin. And it is of a bogus service provider and is under special investigations. What this letter does is create the opportunity for the agreement if it was genuine with Thomas Martin for that to be presented to the case. And any other documents to evidence the genuineness of the matter and the claim. He is the head of the Electoral Commission of Papua New Guinea and he would certainly put a stop in the evidence that he gives in the matter. His evidence is not in view for the accused. Nor does his evidence support the contention that the Electoral Commission had a relationship binding in law with a person Thomas Martin Torea. Nor does he supplement with a letter or evidence to that effect from Kala Rawali Election Manager on location there.
    
25. A further fact to be considered is Defence exhibit D2 Statement under section 96 of the Evidence Act made by the accused in the district Court. He contends that the claim against the Electoral Commission is genuine and true. It is an affidavit yet he attaches no invoice or evidence of moneys owing from what period to what period particularized to come up to the total figure that he has put on each occasion. The total figure is K141, 000.00 he has received K41, 000. 00 then K20, 000.00. And now K121, 000.00 which exceeds the purported figure of K141, 000. 00 for the alleged works. So that now he has ended up with the total figure of K182, 000.00. This figure does not have the basis upon which it is arrived at due from the State to him. Further in his evidence he has not disclosed as to how his tribesman Deputy Electoral Commissioner Simon Sinai has grudges against him. It is an assertion that he has made without any corroboration he is an accused in a serious criminal allegation and must have that independent evidence verifying the assertion he makes: Amoko, The State v [1981] PNGLR 373 (4 June 1981).
    

Findings on Evidence

26. Detailed out with all above there is no ring of truth and credibility in the evidence of the accused. He has told lies in an attempt to distort his identity. I reject his evidence in total and accept the State evidence as the truth for all the reasons set out above. What accused has done is to avoid imminent guilt he created the excerpts set out above whose effect in law has been to corroborate the assertions made out by the prosecution as in Jaminan v The State [1983] PNGLR 318 (29 September 1983). It makes sense because where a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the court must regard and treat that evidence as unreliable, similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence, upon which the Judge can act, David Kandakason v The State [1998] Supreme Court Judgement SC558. In other words both the sworn testimony of the witness, and his statement given out of court are discredited and both are no longer reliable evidence, Palili v The State [2006] PGSC 16; SC848 (31 August 2006).
    
27. It leaves no reasonable hypothesis other than the guilt of the accused Bonu & Bonu v The State [1997] PGSC 11; SC528 (24 July 1997) that Joseph Ande was the only name of the accused. He was not Thomas Martin nor was he Thomas Martin Torea, or Ande Thomas Martin or Ande Joseph Thomas Martin shortens to the last two names. I find as a fact that he has lied and has been dishonest in posing as Thomas Martin which is not his real name. It is a name of another person that he has used to get these moneys dishonestly and apply to his own use. He has therefore with intent to defraud falsely used the name Thomas Martin breaching section 488 (1) of the criminal code because he is not that person nor has he ever being that person ever. That the person is non-existent or if he did exist he is no longer alive. Accordingly I find him guilty of personation contrary to section 488 (1) of the criminal code count 1 on the Indictment.
    
28. And in so posing he has being dishonest by the evidence set out above within the definition of Lawi v The State [1978] PNGLR 183 and he applied the proceeds of that dishonest the cheques firstly of K41, 000.00 and secondly of K20, 000.00 the property of the State to his own use contrary to section 383A of the criminal Code. Accordingly I find him guilty of misappropriation as charged of counts 2 and 3 of the indictment.
    
29. And I further find that he attempted to commit the crime of attempted misappropriation invoking section 4 of the criminal code read together with section 383A of the code that he attempted to dishonestly apply to his own use the sum of K121, 000.00 by depositing that cheque into an account created with false identification as Thomas Martin from where he was going to draw from but was successfully prevented by the Bank. Accordingly I return a guilty verdict on count 4 on the Indictment against the accused Joseph Ande.
    
30. The verdict of the court is guilty on all four counts on the Indictment against Joseph Ande of Puluwa, Tambul –Nebilyer District, Western Highland Province. I order further that his bail moneys are refunded forthwith and he will be remanded to await sentence.
    

Ordered Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant