N11222
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) No. 241 OF 2020

THE STATE

AND

PAGAU ARUBIDZA
of MUNBA VILLAGE,
BULOLO, MOROBE PROVINCE

BULOLO/BUIMO/LAE: POLUME-KIELE J
5 APRIL, 4 JUNE, 2 JULY 2024; 7 JANUARY 2025

CRIMINAL LAW - The accused pleaded 'not guilty' to one count of Misappropriation contrary to Section 383A (1) (a) (2) (b) (d) of the Criminal Code.

CRIMINAL LAW - Trial – Verdict – guilty returned – conviction entered.

Brief facts
The accused borrowed K1,000.00 from one Mr. Tirua Dusa sometime in February 2017. He promised the complainant that he would repay the money after the National General Elections. The accused did not repay the money.  

Mr. Dusa took a Civil Summons against the accused in the District Court at Bulolo seeking orders that the accused repay to him the sum of K1,000.00 plus an order for interest and cost which the accused failed to reimburse Mr.  Dusa.  The Bulolo District Court in determining the claim by Mr. Dusa, issued an Order that the accused, Pagau Arubiza repay to Mr. Tirua Dusa, the sum of K1,000.00 plus a further order for a sum of another K1,000.00 which total a sum of K2,000.00. 

In complying with the Court Order, the accused, Pagau Arubiza then employed as Manager of the Waria Local Level Government (hereinafter referred to as LLG, raised a government cheque in the sum of K2, 000.00 (Cheque No.3432 from the Waria LLG budgetary allocation as settlement of the Court Order,) instead of paying from his own pocket, the sum of K2,000.00 due and owing to the claimant, Mr. Dusa.

The State alleges that the money borrowed from Mr. Dusa was used for his own personal use. He failed to repay the sum of K2,000.00. When issued with a Court Order for repayment, the accused raised a cheque No.3432 for the sum of K2,000, as settlement of the debt. The cheque in the sum of K2,000.00 is the property of the Waria Local LLG.

Cases cited
Kindi Lawi v The State [1987] PNGLR 183
The State v Gabriel Ramoi [1993] PNGLR 390
State v Laumadava [1994] PNGLR 291
Roland Tom and Kalen Kopen v The State (2019) SC1833
Paulus Pawa v State [1981] PNGLR 498
David v State (2006) SC881
The State v Ningigan [2003] N2360 
The State v Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266
The State v Paka [2016]; N6914
The State -v- Napilye Kuri [1994] PNGLR 371
State v Paul Mangeu (2020) N8596

Counsel
Ms S Joseph for the State
Mr. J Kusip for the accused

VERDICT

1.	POLUME-KIELE J:	The accused, Pagau Arubiza was indicted for one count of misappropriation under section 383A (2)(b) of the Criminal Code on 7 November 2022. He pleaded not guilty, and trial was conducted thereafter. 

2.	The State called only one witness and closed its case. 

3.	At the close of the State's case, the defence informed the Court that they were not ready to make submission on verdict. The Court then adjourned the matter to adjourned to 8 November 2022 for counsel to address the court on verdict. 

4.	However, on the 8 of November 20233, counsel for the accused again informed the Court that he was not ready, and the matter was then adjourned to 28 November 2022. In any event, this matter was not dealt with for some reason or other and eventually, this led to a whole year of no progress until the year 2024. 

5.	The Court heard counsel on verdict on April 2024. I reserved my decision which I now deliver.

The law

6.	The charge of misappropriation is covered under Section 383A (2) (b) of the Criminal Code which provides that:
		
		“383A.	

(1)	A person who dishonestly applies to his own use or the use of another person – 
(a)	Property belonging to another; or
(b)	….
(c)	…
..
(2)	where the offender is an employee, and the property dishonestly applied is the property of the employer; or

(c ) …

(b)	where the property dishonestly applied is of value of K2000 or upwards.”

Issues for determination

7.	Two issues have arisen in this circumstances, the first is whether the accused PAGAU ARUBIDZA borrowed K 1, 000.00 from Mr. Tirua Dusa for his own personal use? Secondly, whether the accused PAGAU ARUBIDZA dishonestly applied a sum of K2, 000.00 the property of Waria Local Level Government as settlement of his personal debt in compliance with a court order in favour of Mr. Dusa?

The State's Case

8.	The State tendered following documents in evidence:

Evidence

9.	The State tendered into evidence several documents and also called the complainant, Tirua Dusa who gave oral testimony under Oath. 

10.	The documents tendered by consent are as follows: 

	EXHIBIT	LABEL	
1	Record of Interview dated 28/11/2019		
2	Statement of Investigating Officer Constable Donald Narua dated
5/12/19		
3	Statement of Corroborator Constable Peter Kop dated 5/1 2/19	"C"	
			
4	Complaint DC 14/2018 -District Form 15 dated 15/08/2018	"DI "	
5	Summons Upon a Complaint of DC 14/2018 dated 15/08/2018	"D2"	
6	Affidavit in Support of Complaint by Tirua Dusa of DC 14/2018 dated 15/08/2018	"D3"	
7	Court Order of DC 14/2018 dated 22/08/2018 by His Worship Mr. Edward Kupo	"D4"	
8	Waria Local Level Government Council Cheque No. 3432 to Tirua Dusa dated 4/09/2018	"E"	

Evidence in Chief

Oral Evidence

Examination in Chief

Witness: Tirua Dusa

11.	Mr. Tirua Dusa gave sworn oral testimony in pidgin which was translated to English. He was also cross-examined. He gave evidence that he is self-employed in the sense that he rents out his trade store to his business partners to sustain himself. He says that he is in Court to give evidence against Pagau Arubiza (hereinafter referred to as the accused) for a cheque that he received for the repayment of the accused 'dinau' (hereinafter referred to as Loan).

12.	The witness gave evidence that sometime in February 2017, the accused Pagau went to his house at Karanas here in Bulolo and asked to borrow Kl, 000.00. The accused needed this money for his personal use and got the money. The witness further gave evidence that when the accused approached him and asked for the money, the accused told the witness that he needed the money for his own needs, to buy food for the house. The witness gave evidence that he knows the accused as they are from the same area and the accused would refer to him as uncle. The witness identified the accused as PAGAU and pointed the accused from the accused dock. The witness confirmed that he reported the matter to the Police.

13.	Mr. Dusa also stated that after the accused borrowed the money, he did not repay his loan until the witness went to the District and obtained a Court Order to repay his money. After the accused was summoned to the District Court, the accused repay the money with an interest of Kl, 000.00.The total amount of K2,000.00 was received.

14.	In his evidence, Mr. Dusa stated that he received a cheque for the amount of K2,000.00 as settlement of the Court Order issued by the Bulolo District Court. The cheque, however, belongs to Waria Local Level Government Council. A copy of the said cheque no. 3432 dated 4 September 2018 is referred to and marked as "Exhibit E" which was tendered into evidence. It is clearly labelled, Waria Local Level Government Council. He confirmed that that cheque was used to repay the money that the accused borrowed from him in 2017. Mr. Dusa also gave evidence that he had in fact used up the cash. He states that because it was paid to him.

15.	He further gave evidence that after a while he did not feel good about the payment, so he reported the matter to the police because the money is public money the accused used to repay his debt. The accused got the loan for personal use but instead of repaying it himself, he got the money from the local level government to repay his debt. It was for this reason that we don't get to see delivery of services at the back, and we are suffering.

Cross-Examination

16.	In cross-examination, Mr. Dusa was asked if after receiving the payment, he gave any payment to the accused, he responded in the negative. He was then asked if he returned the cheque after discovering that the cheque was raised by the Waria LLG, he replied also in the negative. He told the Court that the accused borrowed from him and this payment was the repayment of his debt owed by the accused, and he had used the money. When put to Mr Dusa to confirm whether it was the accused who signed off on the cheque; the witness confirmed that even if the accused did not sign, the accused was the Acting Manager for Waria LLG when he used the LLG cheque to repay his debt.

17.	Overall, Mr. Dusa maintained that the cheque he received was from the Waria LLG, not the accused personally. In any event, it is common knowledge that it is the payee who signs on the cheque itself, not the drawer. The drawer is the person who prepares the Requisition Request and authorises the payment.

Re-Examination

18.	In re-examination, Mr. Dusa confirmed that the accused needed some money, and he borrowed Kl, 000.00 from him sometime in February 2017. He also confirmed that the accused did not repay the money, so he filed a Civil Summons against the accused in the District Court at Bulolo. The accused was ordered by the District Court to repay the sum of K1, 000.00 plus an additional Kl, 000.00. The witness confirmed that at the time the cheque was paid the accused was the Acting Manager for the Waria LLG and he used the Waria Council, money to repay his personal debt.

The Defence's Case

*Examination in Chief

(1)	Pagau Arubidza

19.	The accused gave sworn oral evidence in his defence and was cross-examined. In his testimony he says that he is 47 years old and comes from Muniba Village, Garaina.  He also say that in 2017 he was attached as a Support Staff and in 2018 he was appointed as Acting Manager for Waria LLG. In regard to the allegations raised by the State. He gave evidence that in 2017 he was appointed as Assistant Returning Officer (hereinafter referred to as ARO) for Waria LLG whilst attached to Bulolo District Administration. During that time, they conducted the Roll Update since the money was late to fund the project. He asked Mr. Dusa who is his uncle, as a family to borrow K 1, 000.00 because he knows his uncle rents properties to his business partners. He was asked what the money was for, and he told the Court that that money was for the Electoral Roll Update. The witness continued with his evidence that later on, however, he was attached to Bulolo and so he was transferred back. The new ARO for Waria did not repay that money until he himself came back. The witness was adamant that he used the money for election purposes.

20.	Further, the witness went on to give evidence in relation to his role and the LLG structure and the process of how a cheque is raised and authorised. He was a Kiap for twenty years; following from there he was then engaged with the Bulolo Administration and Waria LLG until his arrest. As a senior public servant, what he did he believed was the right thing. He confirmed he told the witness that he needed the money, but the truth was that he needed the money to facilitate the Roll Update. When asked as to who approved the cheque; He gave evidence that he only did the paper work and the EO prepares the Requisition. He, as the financial delegate, signs off and it goes to the Treasurer then to Examiner to see the cheque out.

21.	The witness was then asked as to the delegates of the LLG and the budget to which he gave evidence and the particulars of the cheque in Court and how it was paid; the witness answered that this was raised by the EO and signed off by himself in his position as the Manager.

Cross-Examination

22.	He told the Court that he knew why he was in court because of the allegations of K2, 000.00 misappropriated. He confirmed he heard the evidence from Mr. Dusa. He confirmed he asked Mr. Dusa for K1, 000.00 but denied that at the time he asked for that K 1, 000.00 he was attached with the Waria LLG. But he further stated that he was the ARO

23.	At this stage, the Court then enquired as to his role in 2017. He replied that he was attached with Bulolo District but was ARO for the National General Elections. He states that Kl, 000.00 he borrowed was for the Roll Update. He explained that the Roll Update was as an update of electoral roll funded by National Electoral Commission where officers are appointed before that a RO is appointed in the District.

24.	The Court then asked the witness how many people are involved in the Roll Update; and he stated that not many officers are needed for the update. It was then put to him that, since he is a senior public servant, it would have been the right thing to provide acquittals for that K1, 000.00; he then told the Court that he did.

25.	It was put to him that because he did not provide the acquittals for that K 1, 000.00, the new ARO did not repay the Mr. Dusa's money; *he did not answer.  However, the witness went on to say that it was his first time to be arrested, and he did not provide any acquittals. It was put to him that the money he borrowed was for his own use; he maintained his earlier statement that the money was used for the Roll Update.

26.	Finally, Counsel for the State put to him that he was lying when he said that the money was used for the roll update given that it would cost more than a thousand kina? He denied and again told the Court that not many officers are involved, and the money was used for the roll update.

27.	In any event, if many officers were involved in the Roll Update, then obviously it is reasonable to assume that a sum of K1,000.00 is insufficient to cover all their allowances and related costs.

Re-Examination

28.	In re-examination, the witness confirmed his answers in chief. The Court then enquired as to the limit of financial powers under the district administration; the witness answered K50, 000.00. The Court further asked if K2000 is within the witness limit; he answered in the affirmative.

The law on misappropriation

29.	Section 383A of the Code is in the following.

	“(1).	A person who dishonestly applies to his own use or to the use of another person — 
		
(a)	Property belonging to another; or

(b)	…

(c)	…

	(2) 	 where the offender is an employee, and the property dishonestly applied is the property of his employer; or where the property dishonestly applied is of a value of K2000.00 or upwards” 

Submission

30.	Ms Joseph for the State submitted that this present case is one under Section 383A(1)(a) (2)(b) & (d) of the Code. She referred this court to a recent case of State v Posa (2022) N9388, the elements of the offence were outlined by the current Chief Justice, Sir Gibs Salika in Mt Hagen are that the elements of this charge are that a person: 

(1)	Applies;
(2)	To his own use
(3)	Property
(4)	Belonging to another person
(5)	dishonestly

31.	The facts of the case were that the accused were the employees of the State with the Western Highlands Provincial Government Treasury, with Jonah Posa acting Provincial accountant at the material time. With support from his accomplices, drew out cheques totalling to over K 1 million. At times they would write pay cash cheques, in their own names on various occasions enclosing with cover letters supporting these transactions and present them at BSP [the bank and cashed out the cheque). However, upon audit, it was discovered that the cheques in question were not accounted for in the treasury books kept at the treasury office but only shown on the bank statement, creating deficit of public funds held in the treasury under that particular account. This led to charges being laid against the accused Jonah Posa and others for 36 counts of misappropriation. In this case, in order to have the cheques processed, false requisitions and false FF3 and FF4 forms were processed by the Treasury officers without their knowledge under the watch of Jonah Posa. PGAS cheques were then drawn in the names of Jonah Posa, Wilma Pole, Linah Mark and other unsuspecting Treasury officers who knew nothing about the raising of the false requisitions and false FF3 and false FF4s.  There is undisputed evidence that Jonah Posa, Wilma Pole and Linah Mark were all signatories to all three WHPG operating accounts. The undisputed evidence, as well as evidence that Jonah Posa, Wilma Pole and Linah Mark were the authorization officers to the cheques to be cashed. There is uncontradicted evidence from Linah Mark that she gave all the cash to Jonah Posa after she cashed the cheques. All that evidence points to accused Jonah Posa involved in the scheme and the modus operandi. Did the accused and others involved in this scheme have dishonest intention to get the money and to use the money themselves? 

32.	His Honour Salika CJ in his deliberations alluded that going by the proven facts alluded to earlier in this judgment, all the evidence; direct, circumstantial, and otherwise including behavioural and conduct evidence, point to the “yes” inference and answer and that is that Jonah Posa did have a dishonest intention to get the money. He never filed any acquittals for those monies to exonerate himself. The non filing of the acquittals on the cash advances he received is strong evidence that he did not spend the money for the purposes for which the cheques were raised. The learned trial Judge applied the principles enunciated in the long line of case authorities of Kindi Lawi v The State (1987) PNGLR 183, The State v Gabriel Ramoi (1993) PNGLR 390, State v Laumadava (1994) PNGLR 291 and Roland Tom and Kalen Kopen v The State (2019) SC1833. Here His Honour Salika CJ was of the view that all the proven facts and reasonable inferences in this case leads to one conclusion and that is Jonah Posa is guilty of the remaining charges on the indictment. Accordingly, he found the accused guilty beyond reasonable doubt of all the 36 remaining counts of the indictment. His Honour Salika CJ held that in the circumstances as highlighted above by the evidence, it is not difficult for this Court by reasonable inferences to conclude the respective conduct of the Officers and whether their respective conducts were honest or dishonest, before, during and after the event. In this instance, applying the principles in circumstantial evidence cases, I have come to the conclusion that the only reasonable hypothesis open to me is that the respective actions of Jonah Posa, Wilma Pole and Linah Mark, and their respective state of minds coupled with their respective conduct were dishonest and I so find beyond reasonable doubt. As a related matter, this case only relates to the prosecution of Jonah Posa and the finding of dishonesty in this case only relates to Jonah Posa. The Court found that the accused on dates specified in each of the respective counts in Mt Hagen dishonestly applied to his own use and to the use of others, K1,317,015.16, the property of the State. The Court found that the State has proved each of the remaining counts or charges beyond reasonable doubt. Accordingly, the Court found Jonah Posa guilty of all the remaining 36 counts left on the indictment beyond reasonable doubt.

33.	In the case of Kavo v The State [2015] PGSC 48; SC1450, the Supreme Court outlined "the elements of offence of misappropriation under Section 383A (1) (a) and these are that a person:

(i)	“applies.
(ii)	to his own use.
(iii)	property
(iv)	belonging to another person.
(v)	dishonestly. "
(1)	Application

34.	Ms Joseph address these elements as follows:

(1)	Applies

In this case, the evidence is clear that a sum of K2,000.00 was paid to Mr. Dusa Tirua on 4 September 208. Hence this element non-contentious. The evidence adduced in court is that a requisition was authorised by the accused to raise a sum of K2, 000 was paid to Mr. Dusa on the 4th of September 2018. The evidence came out in Court that that accused did authorise a cheque valued at K2, 000.00. This money was used to pay out the Court Order "Exhibit 4'

He gave evidence that he did raised this cheque in his capacity as the Manager for Waria LLG because initially got debt from the Mr. Dusa for LLC's work to conduct roll update prior to the Elections.

(2)	To his own use

This element is in dispute as the accused denied that he initially obtained the K 1, 000.00 from the Mr. Dusa for his own use. He was adamant that he used the money for roll update.

However, the accused failed to provide acquittals of the thousand kina he obtained from Mr. Dusa, even during evidence he told the Court that he does not have any acquittals of that thousand kina he obtained except to say that he used it for electoral purposes.

Evidence from Mr. Dusa was clear; the accused went to his house and asked to borrow a thousand kina for his own needs. Even the accused gave evidence that he told Mr. Dusa that he needed the money.

The issue before this Court is not one regarding the K2, 000.00, but the K1, 000.00 that the accused initially obtained as loan from Mr. Dusa.

(3)	Property

This element is non-contentious as there is no dispute regarding the K2, 000.00 cheque that was issued to Tirua Dusa to settle the Court Order he obtained against the accused.

(4)	Belonging to another

This element is also non-contentious as the sum of K2, 000.00 belongs to the Waria Local Level `Government.

(5)	Dishonestly

In the case of The State v Gabriel Ramoi [19931 PNGLR 390 Salika, J (as he then was) at 392 held:

"[The] word dishonestly in s383A of the Criminal Code relates only to the state of the mind of the person who does that act which amounts to misappropriation. The state of mind when a person applies property is a question of fact for the trial judge to determine on all of the facts presented before him. And when the judge considers the facts on how the property was applied, he uses the 'ordinary standards of reasonable and honest people' test to determine whether or not the property so applied was dishonestly applied ... 

'Dishonest' is defined in the Oxford Advanced Learners Dictionary of Current English as 'intended to cheat, deceive or mislead'".

35.	Applying this principle to the present, here, Mr. Dusa Tirua gave evidence that the accused went to his house sometime in February 2017 and asked to borrow K1,000.00. The accused needed the money for his personal use. Mr. Dusa waited for the accused to repay, and he never repaid the money. So, Mr. Dusa went to the District Court and filed a complaint against the accused for the repayment of his K1,000.0 plus interest. He subsequently obtained a Civil Court Order for a sum of K2,000.0 in his favour. The accused was ordered to repay that money to Mr. Dusa Tirua. The court order is marked as  "Exhibits DI to 04". This process illustrated the legal avenue that Mr. Dusa took to recover his money.

36.	Sometime after securing the Court Order and serving on the accused, he received a cheque for a sum of K2,000.00. However, when Mr. Dusa received his money, he realised that the payment was a cheque raised from the Waria LLG account. It was not from the accused personally. The funds belongs to the Waria LLG.  Mr. Dusa Tirua did not feel right about this so  in his conscience he had to report the matter because he was of the view that the accused used his position as Manager for Waria LLG and misapplied and misappropriated Waria LLG's money.

37.	So, in this case, the State submits that the accused knowingly, knew that the Court Order dated 22 August 2018 was issued against him personally for the sum of K2000.00. It was not against the Waria LLG. However, to settle the Court Order of 22 August 2018, the accused dishonestly applied the funds belonging to the Waria LLG to repay his personal debt. 

38.	Overall, all the evidence; direct, circumstantial, and otherwise including behavioural and conduct evidence, point to the “yes” inference and answer and that is that Pagau Arubidza did have a dishonest intention to get the money. He did not file any acquittals for those monies to exonerate himself. The lack of filing of the requisition forms, the acquittals on the cash advances he authorised is strong evidence that he did not raise the cheque money for the purposes of settling his personal debt to Mr. Tirua Dusa, for which the cheques were raised.

39.	Therefore, the State has proven that the only reasonable hypothesis open is that the respective actions and conduct of Pagau Arubidza conduct were dishonest and I so find beyond reasonable doubt.

For the Defence
40.	Mr. Kuisip for the defence however submitted that there was no direct evidence as to the application of the funds cashed out from the bank connecting the accused persons. Counsel referred to the case of Paulus Pawa v State [19811 PNGLR 498 on the principles applicable in circumstantial evidence which we adopt here with respect that: -

(i)	The accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilty.

(1)	To enable the Court to be satisfied beyond reasonable doubt of the guilt of the accused. It is necessary not only that his guilt or her guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable it to draw.

41.	He submitted further that in David v State (2006) SC881, the Supreme Court further expounded the Paulus Pawa principle by stating that and quote with respect that: 

"Do the proven facts lead reasonably only to one conclusion — that did the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal."

42.	Mr. Kusip submitted that part of the cheque bearing signatures of the signatories to the account under which the funds are drawn is critical and the State failed to provide that, no evidence at all. Therefore, counsel submits that the Court take note of the following factors: -

(1)	No evidence of the signed cheque bearing signatures of the accused Pagau Arubitza and other signatory. 

43.	Further the State failed to provide evidence of the signed cheque No.3432, bearing signatures of the persons who have signed the alleged cheque which was attached to the 'Remittance Advice,' dated 4th September 2018. It is insufficient, one cannot draw inference from this remittance advice. It is not safe to do so. The actual cheque bearing signatures of accused Pagau Arubitza and two others who are signatories to the Waria Local Level Government Council's particular account ought to have been provided. This critical part of the cheque is not in evidence before the court.

(2)	No Bank Account Statement

44.	No bank statement of the particular account, under which the funds were drawn has been provided. A bank officer would have been called to give evidence including records of transaction, cheque butt bearing signature of the accused and other signatory who signed for the release of the alleged funds at the material time.

Analysis of the evidence

45.	I thank counsel for their submissions in citing case law which are of great assistance to my deliberation.

Assessment of Credibility

46.	Firstly, given the conflicting evidence adduced during trial, I am minded determining the question of who to believe, Counsel for the State referred this Court to several case authorities to assist assess  credibility. To assess the credibility of each witness, I was referred to the case of The State v Ningigan [2003] N2360, where his Honour, His Honour Justice Kandakasi (then) stated that “common sense and logic plays a major role in determining credibility of a witness's evidence” and in The State v Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266.  His Honour Justice Kandakasi went on to also state; 'Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty".

47.	In considering which version of the stories is credible, I refer to and adopt the statement set out in the case The State v Paka [2016] N6914 where the Court considered that to determine which version of the stories is credible depends on a number of factors: 

"Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Waragu Waranaka v Gabriel Dusava (2009) SC 980. Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their appearance and yet be telling the truth. [see Andrew Palili v The State (2006) SC 848] Similarly there is no rule of law which states that the more witnesses called by a party and the more consistent or identical their stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness. [see State v Jacob Dugura Roy (2007) N3137]. The Complainant in the case of PAKA was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive."

48.	Given the above principles or factors, the State submits that this is the first dent in the overall credibility of this accused as a witness in is his legal defence. The State submits that this offends the principle of logic and common sense. It is overwhelmingly clear that the accused Pagau Arubidza was not truthful in his oral evidence. The accused agreed that he borrowed a thousand kina from Mr. Dusa, however, he denied that he used the money for his personal use. In his oral evidence, the accused agreed that he raised the K2,000.00 cheque for the Court Order. He knew about the Court Order, and he knew what the money was for, except that he failed to provide any documentation to show what he used that Kl,000.00 for. This is because in the initial stages of his evidence, the State asked as to whether he had told the police in his ROI that he had provided any acquittal to show how he used the money for the Roll Update to which he did not. The State agrees that in the event of any doubt, the benefit of such should be given to the accused. However, the State submits that it is odd that in his oral testimony the accused kept on avoiding to answer the questions in relation to how he spent the Kl, 000.00 and further the raising of the K2,000.00 cheque. Hence, it is at this juncture that it is important to note the demeanour of the accused during his evidence because during cross-examination that the accused kept on looking at his lawyer for guidance prior providing a response to the questions put to him, especially in relation to the legal issues before the Court.

49.	Therefore, in order to arrive at a conclusion, it is important that the Court determine the issue of whose story or evidence is more credible; is it the story or evidence of the accused person or the state witnesses? 

Submission

For the State

50.	Ms Joseph for the State in his submission on verdict posed two questions for determination.  Firstly, whether or not the accused Pagau Arubidza borrowed K1, 000.00 from Mr. Tirua Dusa for his own personal use?

51.	In this case, she submits that Mr. Dusa gave evidence that the accused went to his house and asked to borrow Kl ,000.00  the accused told him that he needed the money. The accused gave on the other hand gave evidence that when he went to Mr. Dusals house, he told Mr. Dusa that he needed the money. Both the witness and the accused evidence did not mention anything regarding the use of that Kl ,000.00 for any other purpose rather than the accused personal use. Therefore, the conclusion that the Court should draw according to the evidence is that the accused Pagau Arubidza used that Kl,000.00 for his own personal use.

52.	The second question is whether or not the accused Pagau Arubidza dishonestly applied K2, 000.00, the property of Waria Local Level Government?

53.	In her submission to the Court, he suggest that o answer that question, reference is made to the case of The State -v- Napilye Kuri [1994] PNGLR 371; (1993) N1269 where his Honour Woods J carefully considered the elements of dishonesty and where he said:
	
"One of the necessary elements to find a charge of misappropriation under section 383A proved is there must be a finding of dishonesty. This was carefully considered in the case of Brian Kindi Lawi -v- The State [19871 PNGLR 183 where the Supreme Court held that as the word dishonestly in the Section only relates to the state of mind of the person who does the act which amounts to misappropriation, whether the 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. I am satisfied that for a number of reasons which includes the changing of the names of persons in the application, the preference of the applications being for certain purposes, but then being used for other purposes, the giving out of money in cash form to persons other than the original applicants, could all lead a reasonable and honest person to consider that there has been dishonesty in the way these funds have been obtained and applied. The facts surrounding these two grants and cheques are such that it is open to me, and I am satisfied that there was dishonesty involved.

54.	The State therefore submits that in this case, the accused agreed that he told Mr Dusa that he needed the money, and he borrowed Kl, 000.00. He cannot obviously use that money for the Roll Update because he himself told the Police that K30,000.00 is budgeted for that purpose.

55.	Furthermore, the allegations regarding the Kl ,000.00 he borrowed when raised in the District Court, he did not dispute it. And that was the reason the Order was made to him and not the Waria Local Level Government. Once he received that Order to pay, he raised and authorized a cheque belonging to the Waria Local Level Government Council to settle his personal debt.

For the Defence

56.	Mr. Kusip for the accused submitted that the accused was charged for misappropriation under section 383A (2)(b) of the Criminal Code. State alleges that in February 2017, the accused borrowed K1000.00 from one Dusa Tirua. State says this money was for personal use of the accused. The accused would repay the money after the National Elections.

(i)	The accused did not pay the money, so the informant Dusa Tirua took debt recovery actions in the District Court. Court then ordered the accused to pay tK2000.00. (judgment debt).

(ii)	The accused then wrote a cheque of K2000.00 to the said Dusa Tirua. State alleges that the cheque belongs to the Waria Local Level Government Council but was paid to offset the accused's personal debt, amounting to misappropriation.

Whether the accused applied to his own use or to the use of another the alleged K2000.00, belonging to the Waria Local Level Government Council at the relevant time?

57.	Mr Kusip submits that the State did not provide copy of the signed cheque butt containing signature of the accused and the one countersigned in the drawdown of the alleged cheque of '(2000.00, There was no cheque butt with signature of the accused identifying and connecting accused as the one who signed for the release of the Cheque No.3432 payable to Dusa Tirua. The details of the Bank Account name and account numbers are important for complete analysis of the present case, but Prosecution has not provided that relevant and crucial part of the evidence. He submits further that a bank officer should have been called to provide bank account statement/ details and evidence of the signatures of the 4 signatories to Waria LLG Council account against which the alleged funds were drawn and in particular to show to the court the signatures of the accused and one other signatory who have signed for the withdrawal of the alleged K2000.00 cheque. There is a lack of this crucial evidence by the State.

58.	Consequently, there is no direct evidence to show that the accused had signed a Cheque No.3432, let alone the remittance advice, which is only evidence of funds released. Mr. Kusip relied on the case of State v Paul Mangeu (June 2020) N8596, to support his submission and says that in the absence of any direct evidence showing dishonest application of the funds in question by the three accused, whether failure to submit returns, assuming that no acquittals were submitted although defence maintain that they were submitted, is this enough to infer criminal culpability of dishonest application? Lack of acquittal of funds expended is not a criminal offence nor does it provide evidence for criminal prosecution in dishonesty offences. It may provide corroborative evidence of the theft, but it cannot be the primary evidence on which the court can draw inferences of criminal intent. Therefore, due to the State's lack of evidence to provide actual bank cheque butt of the particular Cheque Number 3432 bearing signed signature of the accused and that of the other signatory who countersigned is not enough to establish criminal culpability on the accused before the court here. The State's evidence is therefore circumstantial. The court is open to draw inferences in a case where the evidence is circumstantial as held in the case of Paulus Pawa v State [1981] PNGLR 498. Consequently, Mr Kusip submit the summary of the State's evidence should be as follows:

(1)	While witness Dirua Tusa identifies and gave evidence of payment of the K2000.OO, he failed to provide copy of the cheque butt of the cheque no.3432 bearing signature of the accused on it together with that of the other signatory that drew up his cheque. He received the cheque; he should have this document in his possession as evidence for purposes of this court, but they failed.

(2)	Whether on the evidence as it stands, the accused could lawfully be convicted?

59.	Mr. Kusip submits that the State's evidence as it stands before this court is insufficient to return a verdict of guilt. The accused Pagau Arubitza, must therefore be discharged and bail monies be refunded.

Analysis of the evidence

60.	In this case, the accused agreed that sometime in February 2017 he went to Mr. Dusals house and borrowed Kl ,000.00. He further agreed that he told Mr. Dusa that he needed that money for his own use. He borrowed Kl ,000.00 upon the understanding that he would repay, however when he failed to do so Mr Dusa sought Civil Action against the accused at the Bulolo District Court and was awarded a Court Order against the accused to repay the money with interest. The accused also gave evidence that after service of the Court Order of 22 August 2018, he raised the cheque, and this cheque was processed, and the payment was made to Mr. Dusa. He maintained that the money which he borrowed was for purposes of updating the Common Roll and therefore he used the Electoral funds from the Waria LLG to settle the District Court Order. He maintained that the money borrowed was not for his own use. 

61.	I note that in spite of the claim made by the accused, that the money borrowed was to update the Common Roll, he has failed to provide or accused evidence by way of any documentation on file relating to the disbursement of the funds or the update to the Common Roll. 

62.	In any event, I suppose that his lack of a response to the question put to him about the activities relating to the Common Roll updates, can be inferred that the funds borrowed were used for purposes other than the Common Roll Updates. As evidence adduced during trial more so in Question-and-Answer No. 26 of the Record of Interview disclosed that the budget allocated for that is K30,000.00.This response meant that the funding required for a Common Roll Update exceeded the sum of K1,000.00 borrowed from State witness, Mr. Dusa.

63.	So, noting responses to the questions put to the accused, it is safe to say that there exist some obvious discrepancies in the evidence adduced by the accused. It is apparently clear that it is dubious, unsatisfactory and unbelievable. I find that the story of the accused contradicts the story or evidence adduced by the state witness.  

64.	Here I find that Mr. Dusa gave clear  evidence that the accused went to his house at Karanas, Bulolo  and asked to borrow some money. Mr. Dusa gave the accused a sum of Kl,000.00 and that the money borrowed was for the personal use of the accused. His evidence is consistent and was not contradicted during Cross-examination. As such, his evidence is credible and should be believed as opposed to the story or evidence of the accused. 

65.	Further, Mr. Dusa’s evidence is supported by the documents which are referred to and marked as Exhibits DI-D4 which were tendered by consent. The court  note that the District Court Summons and Order, named the accused as the defendant. The claim was for the repayment of the sum of K1,000.00 plus interest. The accused is named as the only party in the District Court Proceedings in his personal name. The Court Order of 22 August 2018 is against the accused personally. The Waria LLG is not a party to the proceedings. 

66.	I therefore find that the evidence of the State is consistent and corroborated by the documentations in the Court File. The evidence adduced by the defence does not show or even suggest that the money was used for Electoral Common Roll Update as he claimed.

67.	So, in conclusion, having heard counsel on their submission and having considered all the evidence adduced during trial In conclusion, I  reject the submission of the defence that the State’s evidence as it stands is insufficient to return a verdict of guilt. In the case before the Court, there are sufficient evidence adduced before the Court as to the payment of the sum of K2,000.00. Evidence adduced confirmed that a cheque in the sum of K2,000.00 was raised against the funds held in the account of Waria LLG.  It was used to settle a Court issued by the Bulolo District Court against the accused. The Court Order dated 22 August 2018 specifically named the accused, Pagau Arubidza as the defendant.  The Court Order does not name the Waria LLG as the judgment debtor.

68.	Thus, the issue before the Court is how did the Waria LLG come to settle the Court Order? 

69.	The explanation adduced from the evidence of the accused during trial is that the funds borrowed was to update the Electorate Roll, a task within the authority of the Waria LLG and that funding was provided for it. Therefore, he authorised such requisition for a cheque to be raised in the sum of K2,000.00 to settle it. He was in charge of the Waria LLG at the relevant period.

70.	This then leads us to the next question, is the Court Order in relation to a personal matter between State witness Dusa Tirua and the accused, Pagau Arubidza over a personal debt.  So, if this is the case, then the issue here is to determine who is to be believed? It is the complainant or the accused. 

71.	The Court has had an opportunity to hear both parties on their evidence and must now decide who to believe. On the outset, the complainant, Mr Dusa has given evidence that the accused borrowed a sum of K1,000.00 from him and that the accused will repay the said sum. The accused failed to repay so he took the matter to Court. He obtained an order in his favour for the K1,000.00 plus interest and cost which equates to a sum of K2,000.00. A District Court order dated 22 August 2018 is testament to that. He also gave evidence that he received a Waria LLG Cheque No. 3432 for a sum of K2,000.00, which he believed is the settlement of the Court Order of 22 August 2018 in settlement of his debt owed by the accused. As to how the Waria LLG Cheque came about to be used to settle his debt, that is something that only the accused can answer.

72.	 It is at this juncture that the Court points out and accept the submission of Counsel for the State that the evidence from the defence is dubious, contradictory and unbelievable. The demeanour of the accused was appalling and unsatisfactory. As pointed out earlier in this judgment, it is common knowledge that the Requisition Request made for any payment or settlement of an invoice is usually authorised by the Authorising Officer. In this case, it is the accused. 

73.	Evidence adduced during trial infers that the accused authorised the requisition for a cheque for a sum of K2000.00. This cheque was raised and paid out to Mr. Dirua as settlement of the Court order dated 22 August 2018. The evidence is consistent and complimented the documentary evidence before the Court. Here the Court order is made against the accused in his personal name. It is not an order against the Waria Local Level Government Council (Waria LLG). Given these factors, I accept the State's evidence that the accused dishonestly applied the sum of K2, 000.00 belonging to Waria Local Level Government Council to settle his personal debt. 

74.	Given the foregoing, I find that the State has established beyond any reasonable doubt that the accused PAGAU ARUBIDZA borrowed Kl,000.00 from Mr. Dusa sometime in February 2017 for his own personal use. The accused failed to repay that money and dishonestly applied the sum of K2, 000.00 the property of Waria Local Level Government Council to repay his personal debt. 

75.	In light of the above findings, I return a verdict of guilty against the accused, Pagau Arubiza for one count of misappropriation contrary to s 383A(1)(a) (2) (b)(d) of the Criminal Code Act and enter a conviction against the accused accordingly.

Verdict accordingly
_____________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyers for the accused: Kusip Lawyers