N11045
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 161-200 AND 204-287 OF 2022

THE STATE

V

OLIVIA YAMOG

Mt Hagen: Berrigan J
2024: 15th, 22nd, 24th, 25th, July; 15th and 18th October

CRIMINAL LAW – S 383A, Criminal Code – Alleged misappropriation of K702,577.42 by employee of PNG Power Ltd – Misappropriation of lesser amount established - Guilty.    

Cases Cited:
The State v Reinert Waira & Ors (2020) N9517 
Havila Kavo v The State (2015) SC1450
State v Wai (2020) N8182
State v Leva [2020] N8696
Brian Kindi Law v The State [1987] PNGLR 193
James Singo v The State (2002) SC700
The State v Gabriel Ramoi [1993] PNGLR 390
Wartoto v The State (2019) SC1834

References Cited
Sections 23, 383A, 530 of the Criminal Code

Counsel
Ms M. Tamate, for the State 
Ms W. Oa, for the Accused  

DECISION ON VERDICT

18th October 2024

1.	BERRIGAN J:  The accused is charged with misappropriating K702,577.42 belonging to PNG Power Limited, between 4 April 2018 and 31 July 2020, whilst an employee, contrary to s 383A(1)(a)(2)(b)(d) of the Criminal Code (Ch. 262) (Criminal Code). 

2.	The State alleged that the accused was the sole front counter cashier with PNG Power Limited (PPL) in Mt Hagen. She was solely responsible for opening and closing daily shifts on a system called Suprema which recorded all bill payments made by cash, cheque or eftpos during a particular shift, and uploading the receipts onto another system called Gentreck, which kept the records of all PPL customers and their bill payments. During the period the accused operated 122 shifts totalling K663,711 in cash which she did not upload into Gentreck. In addition, the accused dishonestly applied a further K38,866.40 by swapping bill payments between customer accounts. 

STATE CASE

3.	Esther Pam, Team Leader Business Applications, PPL, has over 30 years’ experience with the company and has served as Team Leader, Business Applications for the past 15 years, responsible for managing a team of eight system administrators and administering the business applications used by PPL including the Gentreck and Suprema systems. She was an impressive witness, as was Gabriel Andrew, one of the administrators. Their evidence together with that of the officers on the ground in Mt Hagen established that PPL has two different ways of selling power – on credit (Gentreck) and upfront (Easipay/Suprema).

4.	Gentreck is a postpaid or credit billing system whereby customers use power and pay later upon receipt of monthly bills. Customers come to the cashier with their bill and make payment via cash, cheque or eftpos. The bill contains the customer number, a unique identifier for the customer in the system, which will display the amount owing by the customer. The cashier will enter the amount being paid by the customer and the method of payment into the system, which will generate a receipt. One copy is given to the customer, and another is kept by PPL for reconciliation purposes. Gentreck does not operate in shifts. 

5.	Easipay is an upfront payment method which is used by the bulk of PPL’s customers. Payment is made to the teller at the counter who enters the amount into the Suprema system which automatically generates a receipt bearing the customer’s name, metre number, kina value of credits bought and kilowatt value, together with a sequence of numbers, often referred to as a “token”, relating to a particular metre, which they take back and enter into the metre. Every customer is linked to a numbered metre. Payments can be made by cash, cheque or eftpos (or direct debit at the bank into PPL’s operating account). The teller must specify the mode of payment in the Suprema system. 

6.	Eftpos is automatically entered into either system. The value of cash and cheques are manually entered into the respective systems by the teller. Cash and cheques are held by the cashier in a drawer at the counter. Cash payment was not accepted until sometime in 2018. 

7.	Suprema shifts normally operate from 8 am to 3 pm. An end of shift report (EOSR) is printed out by the cashier at the end of every day from the system which sets out the amount taken during the shift according to eftpos, cash or cheque. The cashier must reconcile the takings with the report. 

8.	The Gentreck and Suprema systems operate separately so the cashier must manually enter the cash, cheque and eftpos values from the Suprema system into the Gentreck system, which then automatically generates a banking deposit slip (BDS) for the combined amounts of cash and cheques from both systems. 

9.	The cashier then hands over all documents to the Finance Officer, who at the time was Tonnicks Yatting, who reconciles the documentation with the cash and cheques provided and endorses the EOSR and BDS. The Team Leader, Customer Services, who at the time was Silas Manual, is responsible for doing a final check of cash, cheque and eftpos payments and signing off.  The Finance Officer takes the BDS and cash and cheques for deposit to PPL’s operating account at the bank.  

10.	According to Rose Kulda, who has been employed by PPL for about 15 years until recently, and took over as cashier after the accused’s departure, banking details were also entered into a ledger book by the cashier which was given to the Finance Officer.

11.	Every user of the Suprema and Gentreck systems within the Retail Team, including a cashier, is issued with a unique username and password for each system. All system generated receipts indicate the user or operator who issued the receipt. Whilst the accused was the only designated cashier it appears that other officers acted in that position in her absence from time to time. All but one of the State witnesses made it clear that it was against PPL policy for usernames or passwords to be shared with any other person at any time. Marge Tirang, Team Leader, Customer Services Kainantu, stated that in such cases she used the accused’s password. 

12.	Shifts are automatically numbered in sequential order and every shift is captured on Suprema. According to standard policy only one shift should be operated each working day by a cashier. There are two main exceptions, one is where more than one cashier works during the day, for instance one operates a shift in the morning and then closes the shift before another cashier operates a shift in the afternoon, or where the same cashier has to leave for an emergency and then returns later the same day and opens a new shift. A cashier has vending and receipting access. There was some conflicting evidence about whether their supervisor also had such access. It was not clear whether the first shift is closed automatically upon the opening of another shift, including by another person, but it appears so. 

13.	It also appears from the evidence of Rose Kulda and from the officers from head office that a shift will not usually close on its own after a black out. It is not clear if it will automatically close after an extended period. So, if there is a blackout and the power does not come back on until the next day the shift will have to be closed the next day but in the meantime the cash and cheques received for Easipay tokens which have already been issued will be given to the Finance Officer for manual banking. The following day the shift for the previous day will be closed and the EOSR printed for that shift before the new one for the day is opened, which means that there will be two EOSRs printed on the same day.  

14.	Sabina Wandaki has worked with PPL for 32 years. She has been the Acting Team Leader, Customer Service in Mt Hagen since July 2020. On her evidence and that of Rose Kulda, in the event of a blackout, a system failure or the system has otherwise gone offline, the cashier is required to issue a paper receipt (a blue copy) from a receipt book in the case of credit customers. The details must be entered into Gentreck when it comes back online. If the system does not come back that day, the details are not entered into the system by the cashier. The receipt and cash or cheque are given to the Finance Officer to keep overnight and banked the next day. The receipt and deposit slip are then sent to Mr Misel Lala at Revenue & Billing at head office in Port Moresby for the updating of account details. Similarly, according to Rose Kulda, if customers make payment in cash or cheque after Gentreck has been closed they are given manual receipts and the receipt and cheque or cash are given to the Finance Officer who “manually banks” them the following day. 

15.	The State produced through Steven Piel, Manager, Internal Audit & Investigations an internal audit investigation report which concluded that the accused had “thrown away” the EOSR Suprema reports from: 66 shifts in 2018, totalling K322,176; 37 shifts in 2019, worth K217,137; and 19 shifts in 2019, worth K124,398, instead of entering them into Gentreck, and kept the monies. 

16.	The State also led evidence from Mrs Wandaki that two weeks into her position as Acting Team Leader, Customer Services, in July 2020, a mass disconnection exercise was conducted for customers whose bills were outstanding. 

17.	In response, one of the customers, Wop’s Trading, complained that it had paid its bills and produced four manual receipts for cash paid in respect of its account number 4412407214 totalling K10,392 and which appeared on their face to be issued by the accused: K3235 on 6 September 2019; K1764 on 5 November 2019; K4088 on 17 January 2020; and K1305 on 11 June 2020. She checked the Gentrack system and found that the payments had not been registered against the company’s account. She told the accused that she had one week to produce the manual deposit slips. 

18.	In the meantime, she monitored the account and saw that cheques paid by other companies were being applied to offset Wops Ltd account #44124072-14 in the following amounts: K3235 from OM Holdings cheque 00725 on 3 July; K1764 from Kaia Works Pty Ltd cheque 001130 on 6 July 2020; K4088 from Dae Won’s cheque 000725 on 9 July 2020; and K4088 from Essar’s cheque on 16 July 2020. 

19.	Mrs Wandaki reported the matter to Business Manager Noah Ipmasua who removed the accused from cashier duties and placed her at the enquiries counter. She found other alleged irregularities by the accused, which I will return to below.

20.	When the accused was asked about the missing monies the accused paid K10,425 on the same day, which she said she had obtained through a loan.

21.	Other evidence established that the accused’s salary at the time was K34,260 with a housing allowance of K15,300 per annum. The accused operated three bank accounts, including one with BSP into which her salary was paid.

22.	Microbank records show that deposits were made to the accused’s account as follows: K2000 in March 2019; K1000, K6000 and K2000; K500 in May; K1000 in June; K1000 in January; K1500 in February; K1000 in March; K2000 and K1300 in June; K1000 in July and K1500 in August. 

23.	For Westpac: K2400 in February 2018; K1700 and K1500 in April 2018; K2000 in May 2018; K3000 in July 2018; K3500 and K3000 in August 2018; K4500 and K3500 in September; K2000 in October; K4200 in November; K5000 in December; K5600, K2000 and K3000 in January 2019; K4000 and K2000 and K6000 in April 2019; K2000 and K1000 in December 2019; K2000 and K1420 in January 2020; K2000 in March; K2000 in April; K2000 and K3000 in May; K2000 in June; K2500 in July.

24.	The State alleged that the accused spent K3,750.00. in October 2018 at the Highlander Hotel for a buffet; K3, 640.00. for rooms at Pacific Gardens Hotel in April 2019; K1,500.00. on 5 June 2019 for wedding catering; and a total of K500 for five persons accommodation at Hotel Phoenix in Goroka on 10 May 2019.

DEFENCE CASE

25.	The accused gave evidence. Her evidence was consistent with that of the State witnesses in many respects. She confirmed that as cashier she was responsible for entering payment details into the respective systems. At the end of the day, she generated the EOSR showing three modes of payment. She would check those amounts with what was on hand and then enter the information on Gentreck before printing out the daily report and banking deposit slip and taking everything to the Finance Officer for checking and banking. The banking deposit slip is signed by both the Supervisor for Customer Services and the Finance Officer. 

26.	She was not made aware by the former Customer Service Leader, Silas Manual, that there was a policy that no more than one shift could be printed out per day. 

27.	If there was a blackout, they did not serve Suprema customers (as they required tokens to be issued). On her evidence, which was generally consistent with the State witnesses, if the power did not come back till the following day, the cash and cheques would be given to the Finance Officer overnight. The next day she would print the EOSR for the previous day, balance, and give everything to the Finance Officer. That EOSR would show the date of printing. After that the new shift would start so that at the end of that day there were two EOSRs. Every EOSR was entered into Gentreck.

28.	For Gentreck customers that paid by cheque or cash receipts were issued manually. If the power came back the receipts were entered into Gentreck. If the power did not come back all cash and cheques were given to the Finance Officer who did manual banking. If there was manual banking it was not recorded in Gentreck. An electricity payment method form was completed by the cashier and given to the Finance Officer for banking and sent to head office to update customer information. 

29.	Both the Finance Officer and the former Team Leader Customer Services had her password to both systems.

30.	As for Wops, they are a Gentreck customer. They paid by cash. One payment of K4088 cash was given to Mrs Wandaki because the system was down. One payment of K1700 was receipted into the system. Two other payments were manually deposited. She did not take the cash. Mrs Wandaki did not give her one week to provide the receipts. The Finance Officer told her she was not allowed to go back into the Cashier’s Office on Mrs Wandaki’s instructions. She gave him the key and she was asked to remove her belongings that day. On Mrs Wandaki’s instruction she gave Mrs Kulda her password to take over as cashier and she was assigned to general enquiries. 

31.	After those auditors from Port Moresby conducted an investigation. She did not make the admissions alleged in the audit report. She did not destroy the shifts. She did not get any money. She does not know why the shifts are missing. She gave all of them to the Finance Manager. She was not able to swap payments between customers or systems. She did not have that access. She did not make the admissions alleged to the internal auditors. She did not make the admissions in the record of interview.  

32.	She obtained a loan from BSP and gave K19,000 to Mrs Wandaki because she told her that K15, 000.00. was owing. She asked Mrs Wandaki if she could get a loan and reimburse the monies and Mrs Wandaki told her to go ahead.

33.	She was engaged in 2018. She obtained a loan from BSP to pay for her engagement. Her parents and family assisted with the cost of the wedding. She has an account with Westpac and an account with Microbank. The deposits to her accounts were made from the sale of blouses, ladies flats and jewelleries, and looking after chickens. 

CONSIDERATION 

34.	As I understand it, what is alleged is that the accused operated a scheme which involved two parts. With respect to Suprema, it is alleged that she operated more than one shift on numerous days during the two and half year period. On those days she opened a shift, received cash and cheques from customers, entered them into the Suprema system for the purpose of issuing tokens to the prepaid customers but later closed the shift, deliberately failed to enter the details into the Gentreck system for the purpose of generating the banking deposit slip and “threw away” the EOSR from those shifts, allowing her to keep the cash and cheques for herself, and handed over only one EOSR and related cheques and cash to the Finance Officer for banking for that day. 

35.	With respect to Gentreck it is alleged that she received cash and cheques from credit customers in respect of which she issued manual receipts. She kept the cash for herself and used those cheques, and cheques received during the missing Suprema shifts, to move monies around by offsetting the accounts of Gentreck customers whose cash she had taken for herself. 

Suprema

36.	To establish its case with respect to Suprema, the State needed to prove both that the cash was missing and that the only rational inference was that it was the accused who took it (or perhaps that she aided another to do so albeit that was not the allegation in this case). In some respects this case was similar to that of The State v Reinert Waira & Ors (2020) N9517.

37.	This required evidence from the State to establish how the systems operated and what the accused did. The State produced very few records, however, from either of the computer systems. It did not produce evidence to establish the accused’s unique username or password for each system. It did not produce records from either system to prove that she accessed the system on particular days or for particular transactions. It did not produce the EOSRs from Suprema for the days on which it alleged that the accused ran more than one shift to prove that fact. It did not produce the Gentreck daily reports, the banking deposit slips generated by the Gentreck system, or bank statements and related documents to prove that there was a difference between the monies received by the accused and those provided by her for banking. 

38.	The internal audit investigation report produced by the State cannot overcome those deficiencies.  I reject the suggestion by defence counsel that the report is deliberately fabricated. There is no foundation for such a submission.

39.	The State called Steven Piel, who was Manager of PPL’s Internal Audit & Investigations at the time. He was an impressive witness. He signed off on the report and he may well have overseen it in a general sense, but he was not one of the two investigators assigned to conduct the investigation in Mt Hagen. He was not the officer who interviewed the accused, which transcript was not produced. He was not the officer who reviewed the company’s records, which documentation was not produced. Those officers, Lead Internal Audit Investigator Elvis Rumints, and Senior Internal Auditor, Danny Kurupani, were not called nor their statements produced. When challenged in cross-examination, Mr Piel said that all of the documentation underpinning the report had been given to police and I have no reason to doubt that, but it is not before me and it appears that it never formed part of the brief nor any discovery. 

40.	This is not a case where I can rely on the material contained in the report to find the allegations established to the requisite standard. It is for the most part hearsay or conclusion. Few specific details are provided. Whilst a summary of the EOSRs alleged to have been “thrown away” by the accused is provided, that appears to have been drawn from a “Suprema Transactions Report” obtained from the system by another officer. It also appears to be a summary of what is on the system and assumes that the accused did take the shifts as alleged. 

41.	In this regard the table does not make clear whether the “amounts” referred to represent cash or cash and cheques. Mr Piel’s evidence that the amounts are cash only is in conflict with other parts of the report itself. 

42.	The defence also point to the fact that the dates contained in the table suggest that a large number of shifts were closed on a weekend. They suggest that this means that either the system or the table is inherently unreliable. I don’t agree. A number of inferences would be available including that another person might also have been involved.  

43.	Of course, both cash and cheques constitute property for the purposes of the offence, but the EOSRs are at the heart of the case and should have been produced.  Having said that they are only half the story. Those reports needed to be analysed against other documentation including Gentreck reports, banking deposit slips, and bank statements to prove that the monies were in fact missing.  It appears that the investigators undertook such a process but neither a detailed summary by reference to each of the documents concerned nor the supporting documentation were produced. 

44.	In addition, the State needed to prove that the accused was responsible for taking the monies, on her own or with others. In other words, it needed to exclude the possibility that it was the Finance Officer and/or the Customer Services Supervisor who took the monies, without her knowledge or assistance, after the accused had handed the monies over to them. 

45.	On the evidence of the State witnesses and the accused, and the policy statement tendered by the State, the Finance Officer and the Customers Services Officer were both required to reconcile and sign off on the EOSR and the banking deposit slip before banking. In addition, a copy of the banking summary together with the cashier’s statements was to be faxed to HQ for confirmation each day. Did that happen? Where are the reports?

46.	For similar reasons, whilst the nature and size of the monies deposited to the accused’s accounts on a regular basis throughout the period are suspicious, even accepting that the accused ran her own dressmaking and other businesses, the fact of those deposits does not overcome the deficiencies in documentation referred to above.

47.	In the circumstances, the State has failed to establish to the requisite standard both that cash was taken from Suprema customers and that the accused was the person who took it (or was involved in its taking).

Gentreck 

48.	I turn now to the monies alleged to have been taken from Gentreck customers about which Mrs Wandaki gave evidence, for which some documentation is produced, and for which there are some admissions in the record of interview. 

49.	With respect to the taking of cash from two individuals, Moses Henry and Paul Pimbo, no statements have been provided by them and there is insufficient documentary or other evidence to otherwise establish the allegations.  I am unable to find any evidence with respect to a W&Q Lin. 

50.	In respect of Kaia Works Pty Ltd there are two allegations. Mrs Wandaki says that on 6 July 2020 the accused used Kaia Works Pty Ltd chq # 00130 amount K1, 764.00.  to offset Wops Ltd a/c 44124072-14.  It was also put to the accused in the record of interview that she stole a total of K12,378.20 being Kaia Works cheque No 623130 dated 3 July 2020 in the sum of K7, 513.77 and Kaia Works cheque number 1178 dated 7 October 2020 in the sum of K3, 172.50. She denied the first and as the accused pointed out in the interview she was no longer employed by 7 October 2020. 

51.	There are witness statements from officers at Kaia Works confirming that certain payments were made by cheque. I have tried reconciling the documentation. Payment vouchers for and copies of three other cheques were produced by Kaia Works, but not the payment vouchers or cheque 1130 for K7, 513.77. It does appear a cheque for that amount was received by the accused on 22 June 2020 and it does appear it was allocated against Kaia Work’s account according to a PPL invoice. It appears to me that it was actually an earlier cheque for K4, 864.43 that was received by the accused that was not allocated against the account but that is not what is alleged and without other evidence I cannot be satisfied of that.

52.	With respect to Essar Projects (PNG) Ltd, Ms Wandaki says that on 16 July the accused used an amount of K4, 088.00; from cheque no 7179 to offset Dae Won Ltd a/c 44289512-10. In the record of interview, the accused said that she manually receipted the cheque and used it to offset another account but then said she offset monies owing to Essar with a loan. I do not understand that statement. The cheque is for K5, 000. It was not manually receipted. Essar is not a Gentreck customer, and it produces the Easipay (Suprema) receipts/tokens dated 10 July 2020 totalling K5, 000. It may be that it is alleged that this cheque was one of those used by the accused from Suprema to offset other accounts but again it is not clear. 

53.	With respect to Mowbray Ltd the accused admitted in her record of interview that it had an outstanding debt of K3, 442.45 so when their officer came with a cheque of K4, 030.00; she used the balance of that cheque (587.55) to offset another customer’s account. In evidence she denied doing that. A “transaction listing” for Mowbray does show that Mowbray had a balance owing of K3, 442.45 on 9 July and there is a statement from the officer at Mowbray that they raised a cheque for K4, 030.45 on 14 July 2020. For some reason that cheque is not produced but one from 3 July is produced instead and there is no receipt showing that it was the accused who received the cheque for K4, 030.00; It appears that K3, 442.45 was credited to the account on 14 July 2020. Again, it is not clear.

54.	Oil Min Ltd produced a remittance advice to confirm that a cheque was raised on 29 June 2020 for K5, 298.70. The accused admitted in the record of interview receiving it but says she offset one of their accounts but used the rest of the money to offset another customer’s account. The admission is of some general relevance.

55.	Coming back to Wops Ltd, however, there is good evidence. 

56.	There is no dispute, and the accused admits that Wops Ltd is a Gentreck customer and that they pay in cash. There is no dispute that cash totalling K10,392.00; was received for payment against Wops Ltd account # 4412407214 by the accused at four different times during the period: K3, 235.00; on 6 September 2019; K1, 764.00; on 5 November 2019; K4, 088.00; on 17 January 2020; and K1, 305.00. on 11 June 2020. The receipts are produced by an officer from one of Wops’ kai bars and the accused admits that she received the cash payments and issued the four receipts (P73; P20-P23). 

57.	No other documentation is produced by the State, but I accept Mrs Wandaki’s evidence that Wops was disconnected and that following that she received a complaint from Wops that commenced the investigation.  I also accept her evidence that she reviewed Wops Ltd’s account on the Gentreck system and saw that the cheque payments had not been registered against the account.

58.	In the record of interview, the accused initially claimed that she gave K4, 088.00; in cash to Mrs Wandaki: 

Q56: What did you do with WOPS PNG Ltd's cash payment of K10,392.00? Ans: I posted Kl,305.00 onto the system the next day. 

Q 57: What happened to the other three payments? Ans: I never posted for the sum of K4,088.00 

Q 58: Why? Ans: During that time, the system was down.
 
59: Tell me, did you finally managed to post that on the system? Ans: I gave that K4, 088.00 to the Finance Officer and Team Leader Customer Service Mrs. Sabina Wandaki.
Q 60: What happened to the other two cash payments? Ans: For K3,235.00, I can remember that I was short fall for cash so I used these money to balance up my takings.

Q 61: Why would you have a short fall? Ans: I was very busy that day and the system was very slow. Q 62: Why then would you have a short fall, if the system was very slow. Wouldn't there be still cash there to balance up when the system picks up? Ans: I cannot really remember.
 
Q 63: Did you offset WOPS PNG Ltd's account on Gentrack? Ans: I remember did offset their account 

Q 64: You have used a manual receipt from the manual receipt book to receipt WOP PNG Ltd, but you did not use the blue copy to receipt that into Gentrack, thus, showing that you stole the money. What have you to say to that? Ans: Yes. 

Q 65: What did you do with the money? Ans: For K3,235.00 and Kl,764.00 I collected the cash, issue manual receipt and used some that money to cover my short fall because I have previously got some cash from other customer in which I owe them and should offset their outstanding. 	

59.	Later, however, she agreed that Dae Won Trading Ltd paid K16,555.52 in July 2020. When asked why they were complaining that the amount was yet to be shown against their account the accused admitted using K4, 088 to offset Wops account:

Q 100: If you are agreeing to the payment made by Dae Won Trading Ltd- K16,555.52, why then are they complaining about bills, yet to be paid against their billing account? Ans: I remember posting K3,733.00 onto the Gentrack System against Dae won's account, however, used K4, 088.00 to offset WOPS PNG Ltd and the remaining balance I posted back to Dae Won's account. 
Q101: So, you're now telling me that Dae Won now has a short fall of K4,088.00 against their account? Ans: Yes.	

60.	This is confirmed by documentation produced by Dae Won Trading Ltd to show that a statement was issued to Dae Won for K12,855.91 on 7 July 2020. A cheque #22375 was raised for that amount on 9 July (P25; P27; P28) and that same cheque was received by the accused on the same day in respect of which she issued a manual receipt (P26) (prior to which there was no outstanding balance: P25) and yet a PPL notice which I am satisfied was issued on 14 July 2020 states that K4, 088.00. was still outstanding (P24). 

61.	There would be no reason for the accused to offset that amount from another customer’s account if she had not taken cash in the sum of K4088 paid by Wops Ltd in the first place. 

62.	The following admissions are also relevant to show that she was deliberately applying monies of one customer to the account of another and her intention at the time: 

Q128: “In all my questions put to you, you have admitted to have deliberately took monies from customers in which you knew it was not right to do so. However, that has not stopped you from doing what you did. What have you to say? Ans: It was not done on purpose but its because of the short fall I encountered. I had all along thought that I will reimburse those monies. I have already given K19,088.00 to the Team Leader Mrs. Sabina Wandaki.

Q129: Do you realize that you have breached PNG Power Standard Policy by running two shifts in a day and getting monies from other customer's accounts to offset another? Ans: I thought it was normal to run two shift in a day but what I have done with customer's account is wrong. 

Q130: Has it ever crossed your mind that you are deliberately stealing from your employer likewise from individual mentioned customers? Ans: Yes. 

Q131: Have you ever considered the consequences if you get caught? Ans: Yes. 

Q132: So, how did that not stop you from going these far? Ans: For Customer Paul Pilimbo for sum of K1000.00 is being cleared already, however, I do admit to manipulate customers account like, Monpi coffee, Mobray, Essar Project, W & Q Lin, Dae Won Trading, Moses Henry, Oil Min Holdings Ltd, & WOPS PNG Ltd. Regarding the missing shifts for 2018 to 2020, my Finance Officer never advised me that the shifts were missing. I can recall in the year 2018, there was an email from Head office to our former boss Sailas Manuel regarding the 2018 missing end of shifts. I heard him saying that he will sort the matter out but he never informed me if anything is wrong.

63.	I reject the accused’s evidence that she did not give the answers recorded in the interview. I reject her evidence that she did not read the interview before she signed it and that it was brought to her several days later in the cell at which time she signed it without reading it because she was pregnant, exhausted and unwell. 

64.	None of this was put to the investigating officer, Sgt Pae, whose cross-examination was concerned with whether she had obtained records from PPL and the bank to confirm the admissions herself and not whether they had in fact been made. The corroborator was not required for cross examination. The evidence was only given by the accused towards the end of her cross-examination when she could not explain the answers given at interview. 

65.	Having heard and observed the accused give evidence over an extended period of time it is my assessment that she is a careful and calculating witness. She fully appreciated the allegations and was alert to the documentary deficiencies in the State’s case. She repeatedly said that she was unable to move cheque payments between the two systems or between customers’ accounts because she did not have such access when I have no doubt that she fully appreciated at all times that the allegation was that she entered cheque details into the system for one company against the account of another.

66.	I accept the evidence of Sgt Pae as to the conduct of the interview, its content, timing, and the fact that the accused signed it the same day, as reflected in the record itself. 

67.	Moreover, there is nothing about the interview that suggests to me that the answers are fabricated. The accused denies throughout the interview any wrongdoing with respect to the large amounts of monies associated with the EOSRs. She initially denies but then reluctantly admits that she took some small amounts of monies, which she “did not do deliberately”, always intended to repay, and had since repaid them to Mrs Wandaki, through a hastily acquired loan. That is hardly consistent with an attempt by an investigating officer to fabricate a confession for the purposes of the large fraud alleged. 

68.	As to the accused’s evidence that she gave the K4088 cash to Mrs Wandaki in January 2020 at the time she received it, as initially stated in her interview, I reject it. Mrs Wandaki may have been at Mr Hagen from time to time during the period but she was not Acting Customer Services Officer in Mt Hagen at that time and there is no reason for the accused to recall giving those monies to Mrs Wandaki at that time if it was just part of routine business when the system was down. In addition, the effect of the accused’s statements in the interview is to admit that she did take the money and the other evidence confirms it.  

69.	With respect to Monpi Coffee the statement from its accounts officer says that he raised a cheque #3739 for K23,985.54 on 19 June 2020 (P82; P88). The cheque raised was actually for K33,932.64 and was to be applied in different amounts to three different sites (P52; P54). The accused manually receipted that cheque for K23,985.54 on 19 June which was consistent with Monpi’s payment requisition form for one of the sites (P53; P55). It is not clear what happened to the balance of that cheque. Critically, however, the accused admitted in the record of interview that she applied part of that cheque, that is K8,800, to offset Wops account and only applied the balance to Monpi’s account.  

70.	I reject the accused’s evidence that she receipted the cheque directly to the account. She pointed out in support of her evidence that a subsequent invoice (P56) showed a current amount due of K33,128.36 due and nothing older than 30 days but it is clear from the top of the invoice that there was still as at 27 July 2020 an outstanding amount of K8, 600. I am satisfied that, as admitted in her record of interview, the accused used K8,800 of the cheque paid by Monpi Coffee in June 2020 to offset Wops’ account.

CONCLUSION

71.	To establish the offence the prosecution must prove beyond reasonable doubt that the accused:

(a)	applied; 
(b)	to her own use or to the use of another; 
(c)	property; 
(d)	belonging to another person; 
(e)	dishonestly. 

Havila Kavo v The State (2015) SC1450.

72.	There is no dispute and I am satisfied beyond reasonable doubt that the monies the subject of the charges, both the cash taken by the accused and the cheques, or parts thereof, applied against customer accounts, were property as defined under s 383A(3), Criminal Code.

73.	There is no dispute, and I am satisfied beyond reasonable doubt that those monies belonged to PPL pursuant to s 383A(3)(d), Criminal Code. The monies were owed to PPL and PPL had both a legal and equitable interest in or claim to the monies.  

74.	I am satisfied beyond reasonable doubt that the accused applied a total of K16,976 to her own use when she took K4, 088.00; in cash paid by Wops Ltd in January 2020; when she applied K4, 088.00; from a cheque to the account of Wops Ltd in July 2020 when it was intended to be applied against Dae Won’s account; and when she applied K8, 800.00; from a cheque to Wops account ín June 2020 when it was meant to be applied against Monpi’s account. 

75.	It makes no difference that the monies the subject of the cheques may ultimately been deposited to PPL’s operating account. They were diverted from the purposes of the person to whom the property belonged, PPL: The State v Hasu (2018) N8656; Waira, supra; State v Douba (2018) N7627; State v Bae (2019) N8029; State v Simon (2020) N8183; State v Wai (2020) N8182; State v Leva [2020] PGNC 369; N8696 and others adopting R v Easton [1993] QCA 255; [1994] 1 Qd R 531.  

76.	It is clear that the K4, 088.00; was applied in July 2020 to conceal the K4088 taken by the accused in cash in January, which would have led to a shortfall to PPL as the accused’s conduct demonstrated she well appreciated. The only rational explanation for the accused to apply K8800 from Monpi’s account in June 2020 to Wops Ltd account was to cover up the fact that she had taken that amount of cash for herself instead of recording it against Wops Ltd’s account at an earlier time.  As a matter of common sense and logic there is no other rational inference in all the circumstances. The totality of the evidence excludes all rational hypotheses consistent with innocence. 

77.	I make these findings despite the fact that the State has not produced the customer account statements for Wops Ltd, Dae Won Trading Ltd or Monpi Coffee from Gentreck. I make them despite the fact that the combined monies from Dae Wan and Monpi Coffee exceed the amount paid by Wops Ltd on the four receipts.  It matters not. The accused was moving money around to cover her tracks.  

78.	In this regard it is also relevant that upon being confronted by Mrs Wandaki about missing monies she asked her if she could repay them and immediately paid more than K10,000.  That is an admission of its own and I reject the accused’s evidence that she did it because the auditors had already made up their minds that she was guilty. 

79.	Finally, I am satisfied beyond reasonable doubt that the application of the monies to the accused’s own use was dishonest. I reject the accused’s statements in her record of interview or in evidence that there was a shortfall due to a system error and that she never intended to take the money and always intended to repay it. The fact that she intended to repay it would not excuse her conduct: s 383A(3)(b), Criminal Code but I am satisfied beyond reasonable doubt that the evidence excludes the possibility that she had such an intention in any event.

80.	I am satisfied beyond reasonable doubt that the taking of cash intended to meet PPL’s charges and the application of monies owing to PPL from one customer to that of another was dishonest according to the ordinary standards of reasonable people. I am further satisfied beyond reasonable doubt having regard to the age, education and experience of the accused, that she in fact knew that her conduct was dishonest according to those standards: Brian Kindi Law v The State [1987] PNGLR 193, James Singo v The State (2002) SC700, The State v Gabriel Ramoi [1993] PNGLR 390; Havila Kavo, supra, Wartoto v The State (2019) SC1834, amongst others.

81.	For completeness, there is no evidence that raises any honest claim of right without intention to defraud which has been excluded beyond reasonable doubt:  s 23(2), Criminal Code; Wartoto, supra and the cases applying. 

82.	There is a variance, and a significant one at that, between the amount alleged in the indictment and that proven on the evidence. The value of property is not an essential element of s 383A, Criminal Code. Furthermore, in an indictment referring to money, proof that the accused dealt with any portion of the value of it is sufficient to constitute the offence: s 530(6) and (7), Criminal Code.

83.	The accused is guilty of misappropriating K16,976 belonging to PPL Ltd, contrary to s 383A(1)(a)(2)(b)(d), Criminal Code.

Verdict accordingly. 
________________________________________________________________
Public Prosecutor: 		Lawyers for the State
Palem Onom Lawyers:  		Lawyers for the Accused