N7904
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) N0. 197- 198 of 2017

THE STATE
V
CHRISTINE ATU

Kokopo:  Susame, AJ.
2019:  21 23 May & 04 July

CRIMINAL LAW – Trial –Offences – Abuse Of Office & Misappropriation –Ss 92(1) & 383a (1) (A) (2) (B) Of The Criminal Code – Guilty Verdict Returned On Both Charges

Cited Cases:
Lawi v The State [1987] PNGLR 183	
State v Francis Natuwohala Laumadava [1994] PNGLR 291
The State v Gabriel Ramoi [1993] PNGLR 390

Counsel:
Mr. C Sambua, for the State
Mr. A Tunuma, for the Prisoner

DECISION ON VERDICT
04th July, 2019

1.	SUSAME, AJ:  Accused, Christine Atu, was Sister In-Charge of Warangoi Health Centre. She was the team leader and coordinated the Immunization Rollout programme between February and April 2016. She engaged Wape Sale and Leo Ako as drivers to pick up and drop off workers engaged in the programme. Wape Sale was not committed to his driving duties. In his absence Leo Ako had to do all the driving. When the programme ended all persons were paid their travel allowances except Wape Sale.  
2.	This followed a decision Christine had made for Wape Sale not to be paid any allowance.  She had authorized payment of the cheque of K840.00 for Wape Sale’s allowance to Leo Ako resulting in Leo Ako receiving two cheque.  For that Christine is charged for misappropriation. Secondly she is charged for abuse of the authority of her office to facilitate an illegal and unlawful transaction as a result of which Wape Sale was denied receiving his travel allowance.  
Issues
1.	Two issues arise for determination:
•	Whether Christine dishonestly apply to the use of Leo Ako money belonging to Wape Sale? 
•	Whether Christine abused the authority of her office?
Offence of misappropriation – s 383A 
3.	In order for the court to find Christine guilty of the charge under s 383A, the State must prove beyond reasonable doubt that she:

•	Dishonestly;
•	Applied to her own use or use of another 
•	Property belonging to another person. 
Established Facts
4.	For both charges some basic facts are uncontested and have been well established by evidence.   Christine Atu is the perpetrator. She was then the Sister- In - Charge of Warangoi Health Centre and was the Programme Coordinator of the Immunization Programme conducted between the months of February and April in 2016.

5.	Christine submitted a budget including payment of allowances for personals engaged in the programme.  Amongst the personals included Wape Sale and Leo Ako for driving duties.
 
6.	It is also not contested Wape Sale was not fully committed to picking up and dropping up nurses at their respective work locations. He skipped a few days. Leo Ako had to do the runs in his absence. 

7.	Payment of allowances was to be done after the programme concluded. That occurred 08 months after on 12 December 2016 when funds became available.  All others received their cheque including Leo Ako who received K840.00. Ako received an additional payment of K840.00 which was initially raised for Wape Sale.  Unfortunately Sale missed out and was never paid his allowance. 

8.	Conduct or actions of Christine in denying Wape Sale from receiving his allowance is the subject of scrutiny of the court. 
Evidence
9.	State evidence consisted of documentary evidence including witnesses’ statement which were tendered by consent. Mr. Tunuma representing Christine chose not to challenge the witnesses’ statements and have witnesses appear in court to be cross-examined.  Their statements therefore remain intact and untainted.
 
10.	Defence relies on evidence from Christine Atu, the only witness.  
Issue: Whether Christine dishonestly applied the money for use of another person? 
 
11.	To amount to misappropriation the crucial word is “dishonestly.” The word had been defined by the Supreme Court in Lawi v The State [1987] PNGLR 183. The court made reference to various authorities in the United Kingdom in defining the word dishonesty and held:

12.	As the word dishonestly in s 383A only relates to the state of mind of the person who does the act which amounts to misappropriation, whether an accused has a particular state of mind in relation to the application of property which is dishonest is a question of fact for the trial judge to consider on all the facts of the case before him and according to the ordinary standards of reasonable and honest people.:

13.	Salika J (as he then was) in The State v Gabriel Ramoi [1993] PNGLR 390 defined the word dishonestly “The word dishonestly in s 383A of the Criminal Code relates only to the state of 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. “Dishonesty” comes from the word “dishonest”. “Dishonest” is defined in the Oxford Learners Dictionary of current English as intended to cheat, deceive or mislead.”

14.	The question of whether the accused acted dishonestly is determined both objectively and subjectively. Firstly, it is determined objectively on facts by using the test of ordinary standards of decent, reasonable and honest” people. Secondly it is decided subjectively because court must look into the mind of the accused person given his intelligence and experience of what a right-minded person would have done and that what he was doing was dishonest. (Injia AJ as he then was in State v Francis Natuwohala Laumadava [1994] PNGLR 291.
 
15.	In deciding the issue it is important to scrutinize the whole transaction from when Christine made the decision to terminate Wape Sale’s service up to the time of payment of allowances.   

16.	As it comes out from Christine’s evidence Wape Sale picked up nurses in the morning and dropped them of at their work locations. He never returned to pick them up in the afternoon. Leo Ako did the afternoon runs. This occurred for 3 days. When Christine received the report from the nurses after the third day she made the decision to terminate Wape’s services.  There was no contention from the State on these facts. 

17.	I accept therefore Wape Sale provided his services in the mornings for 3 days. In the afternoons it was Ako who assisted in picking up the nurses from their work stations. Christine made the decision to terminate Sale’s services after she received report from the nurses on the third day. From then on Ako was the only driver making the daily runs until the programme ended. 

18.	Christine was under intense cross-examination by Mr. Sambua on various points which are quite relevant on:

•	Whether she advised the authorities of her decision?
•	Whether she was aware of the requirements of the Public Finance Management Act, Public Service General Orders and if she attended an induction course on procurement processes for payment of service providers and allowances?
•	Whether she authorized payment of the cheque to Ako and if she signed off and picked it up and handed it to Ako?
 
19.	Her explanations and answers have been considered.  Some of her facts deferred from witnesses Wape Sale, Maibi Aquila and Leo Ako for the State. 
 
20.	The question is whose evidence is more credible?  
21.	Mr. Tunuma representing Christine chose not to challenge statement of the three State witnesses. The witnesses have made certain statements regarding the conduct of Christine in the whole transaction.  
 
22.	That reminds me of the evidentiary rule well founded in the infamous old English case of Browne v Dunn (1894) 6 R. 67 H.L.  The rule has had a good reception by the courts in this jurisdiction. The essence of the rule is about fairness. The rule discourages trial by ambush. By professional standards a party cannot keep his case secret until he adduces evidence.

23.	The only way Defence Counsel could put a real challenge and discredit the witnesses is through the cross-examination process if facts are to be contested. Defence Counsel does no good to his client’s case if the version of facts relied on are not put across to the State witnesses to offer some explanation or answer and later adduce evidence to contradict their evidence.  Only then Defence Counsel is in a position to suggest or argue witnesses are lying or mistaken in the recollection of facts. He cannot impeach their evidence in his submission.  (The State v Ogadi Minjipa [1977] PNGLR 293, Awoda v The State [1984] PNGLR 165).
 
24.	The facts that have been established from the evidence on the first issue.  Christine had decided to terminate Sale’s service for non-performance after the third day of the immunization programme.  Which basically meant that Wape Sale was not going to be paid any allowance. The decision was never conveyed with her recommendations to the appropriate funding or paying authority for variations to be made.  Christine had admitted to that omission on her part.
 
25.	However, her explanations and answers to justify her actions under intense cross-examination were not satisfactory and convincing. She shifts the blame on Leo Ako in a deliberate attempt to justify her omissions. Her evidence contained inconsistencies which makes her evidence unreliable and lacks credibility.

26.	Christine prepared and submitted the budget.  She knew how much allowance each officer or person engaged in the programme will receive after completion of the programme.  The two drivers Wape Sale and Leo Ako would have each been paid K840.00 based on the general expenses that were submitted to the provincial treasury.

27.	Christine was a senior nursing officer with 16 years of service. She has attended an induction course on basic procurement procedure and process as required under the Public Finance Management Act. She is quite versed with the public service general orders. For her to by-pass the legally accepted procurement process may lead to adverse inferences drawn against her. 

28.	If there were any variations with respect to payment of allowance for any personal engaged in the programme it was incumbent upon Christine being the coordinator to make a report and submit verified amended claim to the paying authority concerning the two drivers. If such a report was made and variations made Wape Sale’s payment would have been limited to the 3 times he provided his service. While Leo Ako would have received an increase for the extra work load performed based upon the arrangement and accepted rate. 

29.	Christine was steadfast in her decision and personally wanted to ensure Wape Sale received no allowance. Instead of resorting to legally accepted procurement process this is what she did. Based on the procurement documents received by the paying authority the claim of K840.00 was approved and cheque raised and made payable to Sale Wape.
  
30.	When she learnt of that she approached the paying officer Maibi Aquila several times to sign off and collect the cheque. Her intention was to divert payment to Leo Ako. She was refused at first but she managed to convince Aquila and was allowed to sign off and pick up the cheque. Instead of delivering the cheque to Wape Sale she diverted payment to Leo Ako.
 
31.	Leo Ako gave evidence Christian personally cashed the cheque and handed the cash to him. Although Christine denied cashing the cheque this remains an unchallenged fact. Therefore, I find as a fact that Christine collected the cheque, personally had it cashed and delivered the cash to Leo Ako.
 
32.	Applying both the objective and subjective tests Christine was an experienced officer. She had attended an induction on basic procurement processes under the Public Finance (Management) Act and she is familiar with Public Service General Orders for payment of allowances.  Any reasonable and ordinary person in Christine’s capacity would not have done what she did. That is cash the cheque drawn in one person’s name and hand cash to another person who was not entitled to.  That can be perceived or construed by any reasonable ordinary person as dishonest or deceitful.

33.	And in applying the subjective test an Officer in Christine’s capacity with vast experience and knowledge of proper procurement processes would not have done what Christine did. Instead the Officer would have adhered to proper and appropriate legal procurement processes and submitted an amended claim for and on behalf of Wape Sale and Leo Ako for the number of days both provided driving duties.
 
34.	It can safely be drawn from the above reasons Christine’s actions were fraudulent and dishonest resulting in Leo Ako receiving double payment, hence denying Wape Sale of his allowances payable.
 
35.	Conclusion reached is that State has discharged the onus of proving the elements of the charge. Accordingly, Christine Atu is guilty of offence of misappropriation under s 383A. 
 
36.	Moving on to discussions of the second charge of abuse of office. 
Offence of Abuse of Office – s 92
37.	For this particular offence State must prove beyond reasonable doubt that:
•	Christine is employed in the Public Service;
•	She used her position to do or direct an arbitrary act; 
•	Arbitrary act was prejudicial to the rights of another
Issue: Whether Christine abused the authority of her office?
38.	Evidenced had firmly established beyond doubt Christine was in the employee of National Public Service. At the time the offence was committed she was the Sister-In- Charge of Warangoi Health Centre. She was appointed as the Coordinator of the Immunization Roll out Programme that was conducted from February to April 2016. In those two capacities she had authority to make decisions and issued directions in the proper management of the Health Centre as well as the successful implementation of the immunization programme. 

39.	The remaining element that requires proving is abuse. Was Christine’s actions arbitrary and prejudicial to another person’s rights?
 
40.	First let me define the word arbitrary. “The term arbitrary describes a course of action or decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards.” (https://legal –dictionar.thefreedictionary.com); Or it can mean doing something according to one’s will conveying a notion of a tendency to abuse authority of office.

41.	Again that issue requires scrutiny of the actions she took in the whole transaction. Christine was adamant in her decision to terminate the services of Wape Sale. She personally took it upon herself and ensured no payment of allowance was made to Wape Sale. She used her position to convince Aquila to sign off and collect the cheque. She personally had it cashed and paid all the cash to Leo Ako.
 
42.	The action she took was contrary to proper legally accepted process and procedure. Her actions were rather personal against Wape Sale.  If Leo Ako was entitled to extra allowance Christine should have submitted an amended claim to the paying authority in compliance with the accepted procurement process. She should have done the same for Wape Sale. It was incumbent upon her to make such variations in accordance with the legally accepted procurement process. And she had ample 07 months to do that before the cheque were raised and dispatched.  As a result of her actions Leo Ako was paid extra K840.00 in addition to his approved allowance. While Wape Sale missed out on what he was entitled to receive for services rendered.
   
43.	In the circumstances I find Christine’s actions were arbitrary and prejudicial to the rights of Wape Sale.  I have no shadow of doubt in my mind that Christine had abused her office.
 
44.	Conclusion reached is State has convincingly discharged the onus of proving the charge. Christine Atu is guilty of the offence of abusing her office contrary to s92.
_______________________________________________________________
Public Prosecutor:	 Lawyer for the State				
Public Solicitor:	Lawyer for the Prisoner