CR NO. 147 OF 2006; The State v Robert Tiki and CR NO. 148 OF 2006; The State v Jim Kamin (2008) N3990

• Jurisdiction: Papua New Guinea
• Judge: Yagi, J
• Judgment Date: 23 October 2008
• Court: National Court
• Citation: (2008) N3990
• Year: 2008
• Judgement Number: N3990

Full Title: CR NO. 147 OF 2006; The State v Robert Tiki and CR NO. 148 OF 2006; The State v Jim Kamin (2008) N3990

National Court: Yagi, J

Judgment Delivered: 23 October 2008

N3990

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 147 OF 2006

THE STATE

-v-

ROBERT TIKI

&

CR NO. 148 OF 2006

THE STATE

-v-

JIM KAMIN

Kainantu: Yagi, J.

2008: 20 & 23 October

CRIMINAL LAW – misappropriation – accused persons pleaded not guilty –trial - no case submission from defence counsel at the close of states case – test is whether the evidence supports the essential elements of the offence – no evidence in relation to establishing two elements of offence – both accused acquitted – s383A Criminal Code Act

Counsel:

L. Rangan, for the State

B. Koningi, for the Accused, Robert Tiki

M. Mumure, for the Accused, Jim Kamin

23 October, 2008

1. YAGI J: The two accused, Robert Tiki and Jum Kamin, have been indicted together. Both pleaded not guilty to one count of misappropriation. The indictment presented by the State against both Accused states:

“ROBERT TIKI of KETA village, Muglamp in the Western Highlands Province and JIM KAMIN of KOGE village, Sinasina in the Simbu Province stand charged that they between the 20th day of October, 2004 and 1st day of December 2004 at Goroka in Papua New Guinea dishonestly applied to their own use money the sum of Ten Thousand Five Hundred and Forty-five Kina and Thirty – five toea (K10,545.35) the property of Law and Justice Sector Program.”

2. Counsel for the State, Mr. Rangan, informed the Court that the indictment as presented against both accused is under s. 383A (1) (a) of the Criminal Code Act.

3. By consent the State tendered the following documents into evidence:-

A. In respect to Accused, Robert Tiki –

· Record of Interview (English version) dated 02nd November 2005 – Exhibit “A”

· Statement of Investigation Officer, Detective Constable Bina Gigiba (type written English version) dated 03rd November 2005 – Exhibit “B”

· Statement of Corroboration Officer Detective Constable Elizah Aron (typed written English version)- dated 03rd November 2005 – Exhibit “C”

B. In respect to Accused, Jim Kamin –

· Record of Interview (typed written English version) dated 21st December 2005 – Exhibit “D”

· Statement of Investigation Officer, Detective Constable Bina Gigiba (English version) dated 22nd December 2005 – Exhibit “E”

· Statement of Corroboration Officer Detective Constable Elizah Aron (English version) dated 22nd December 2005 – Exhibit “F”

C. In respect to the State’s Case generally –

· Statement of Correction Service Commissioner Richard Sikani dated 11th November 2005 (typed English version) – Exhibit “G”

· Letter by Kaisa Kemawawa dated 08th October 2004 – Exhibit “H”

· Letter by Commanding Officer Anis Kapil to Director Facilities Management Unit dated 21st September 2004 – Exhibit “I”

· Quotation No. MHG09 by Mitre Hardware dated 01st October 2004 – Exhibit “J”

· Correction Services Check List form No. 091451 – Exhibit “K”

· Copy of Cheque for K35,734.93 – Exhibit “L”

· Bundle of copy Mitre hardware Invoices including an hand written summary identified as RT06 in the Committal Proceedings – Exhibits “M1” and M2”.

4. After the tendering of the documentary evidence, Mr. Rangan for the State, called 5 witnesses who each gave sworn oral testimonies. After these State witnesses were examined, the State formally closed its case.

5. The summary of the oral evidences given by the State witnesses are as follows:-

Witness No. 1: Sam Wange.

He is the Branch Manager of Steamships Hardware in Goroka. He has been employed in that capacity for the last 4 years. Previously was employed by Mitre Hardware Company. The Mitre Hardware Company was owned by Collins & Leahy Company but was sold to Steamships Hardware Company in 2005. He was aware of a cheque of K35,000 plus from Law & Justice Sector Program given to Mitre Hardware for the purchase of Taffa tanks for Bundaira Correctional Institution. He said there were 11 invoices issued by Mitre Hardware against the cheque. He referred to a hand written summary of the Invoices (Exhibit “N”) and said that the cheque was held in some form of a credit account where materials were supplied on request and value of the materials deducted from the credits. There was no cash payments made or released to anyone including the two Accused during the transactions. The credit balance as at December 2004 was K1,801.01. He also recalled that the Accused, Robert tiki, did attend his office, on one occasion and used his telephone to speak with his superior to make changes or variation to the orders. He said the Mitre Hardware driver did transport the materials ordered to Bundaira CIS and he received no reports from the driver about deviation to the destination.

Witness No. 2: Yagivi Kimundi

He is currently employed as Driver with Steamships Hardware Company. He was previously employed by Mitre Hardware Company. He said he recalled having delivered on 3 occasions a number of Tanks to Bundaira CIS. He cannot recall the date as it was some time ago. He said on the first occasion he dropped off 3 large size tanks (about 2,000 gallons). On the second occasion he delivered about 4 large size tanks. On the third occasion he delivered 4 small size tanks. The first and second deliveries were made direct to Bundaira CIS premises whilst the third delivery was made to a Service Station in Kainantu due to bad road condition along the road towards Bundaira CIS, after approval and direction was given by Bundaira CIS Officers. He also said he had never diverted the deliveries to any other destination.

Witness No.3: Gibson Bani

He is the Industrial officer at Bundaira Correctional Institution. On instructions, he conducted an investigation into the K35,734.93 cheque. He initially went to Mitre Hardware in Goroka but was denied assistance by the Hardware officials because he was not recognized as the authorized officer. Subsequently he received authority from his boss and was able to obtain some information relating to the use of the cheque. His investigation found that the cheque was for the purchase of 10 x 9,000 litre Taffa tanks. However, he says there are presently 8 tanks at Bundaira CIS. He cannot say why there are less than 10 tanks at Bundaira CIS. He says 3 x 9,000 litre tanks have been installed whilst 5 tanks have not been installed because some have no fittings. He says the fittings have been purchased but he can not say whether these were purchased from Mitre Hardware or elsewhere. These included taps, piping and down pipes. He does not have any idea why the 5 tanks have no fittings. He said he did not conduct a physical audit of the materials purchased from Mitre Hardware.

Witness No. 4: Gabriel Wai

He is an Inspector in rank and the Facilities Manager responsible for such matters as security, shifts, escorts, etc. his responsibilities include looking after industrial section and maintenance of houses. He said he recalled coming across the K35,734.93 cheque which was for the purchase of the Taffa tanks. He had requested for a report pertaining to the matter from the Accused Robert Tiki but did not receive a report. When he did not receive the report he directed Warder Gibson Bani to investigate and prepare a report for him. He said there should have been 9 x 9,000 litre tanks purchased but instead there were only 4 tanks. He does not know why the change was made and says that the Accuseds did it themselves without approval by the then Commanding Officer, the late Anis Kapil. He is not aware if any cash was taken as a result of the swap in the tanks.

Witness No. 5: Alois Kuima

He is the Internal Auditor for the Department of Correctional Services (CS) and stationed at CS Head Office. His role is to audit books of the Department and verify transactions and to ascertain whether there was compliance with the requirements of the Public Finance (Management) Act. His findings and report are forwarded to the Commissioner of CS. He undertakes his tasks on routine annual audit basis or on direction when specific allegation is raised. He said he came to Bundaira specifically to investigate for this case in May 2005 on behalf of the Law & Justice Sector Program. He said Law & Justice Sector Program funded the project for K35,734.93 for 10 x 9,000 litre tanks, accessories and fittings to be purchased from Mitre Hardware from the funds based on the quotation provided. He said in the course of his investigation, he called both Accused and gave them 2 months to produce documents obtained from Mitre Hardware for verification against the physical existence of the materials supplied by Mitre Hardware. He says the 2 Accused did not cooperate with him and so none of the documents were produced to him. He says the Commander showed him the tanks that were delivered but did not show him the accessories that were purchased. He was only shown 2 tanks although he was told 8 tanks were purchased. He also said he did some cost analysis on his investigation and determined about K11,000.00 was deficient.

6. The Defence then proceeded to make a no case submission. The Defence submission is premised on the first limb of the principle in State v Paul Kundi Rape [1976] PNGLR 96.

7. The principle is that where in criminal proceedings at the close of the case for the prosecution, there is a...