State v Mark Mauludu (2014) N5566

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 04 April 2014
• Citation: (2014) N5566
• Docket Number: CR NO 285 and 286 OF 2012
• Court: National Court
• Year: 2014
• Judgement Number: N5566

Full Title: CR NO 285 and 286 OF 2012; State v Mark Mauludu (2014) N5566

National Court: Salika, DCJ

Judgment Delivered: 4 April 2014

N5566

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 285 and 286 OF 2012

STATE

V

MARK MAULUDU

Waigani: Salika, DCJ

2014: 12 & 19 March; 9 & 22 March, 04 April

CRIMINAL LAW – Practice and Procedure – Misappropriation charges – Elements of offence – accused claimed airfares for children over 18 years – claims for on call and overtime allowances – can only claim if on call service is performed – accused action in claiming for the allowance not honest.

Cases Cited:

James Singo v The State (2002) SC700

The State v Nathan Kovoho (2005) N2810

The State v Steven Ulaias (2006) N3033

The State v Iori Veraga (2005) N2849

The State v Robert Tiki, The State v Jim Kamin (2008) N3990

Brian Kindi Lawi v The State [1987] PNGLR 183

The State v. Paul Asakusa (No 1) (2010) N4056

The State v. James Makario (1990) N862

Counsel

Ms P Koralyo, for the State

Mr M Kombri, for the Defense

04th April, 2014

1. SALIKA DCJ: Introduction: The Accused was indicted with two (2) counts of the offence of Misappropriation contrary to s.383A (1) (a) and (b) of the Criminal Code Act, Chapter 262 (the “Criminal Code”). The charges were pleaded in this manner:

“Count One:

Mark Mauludu of Kariru Village, Yangoru, East Sepik Province stands charged that he between the 1st day of August 2008 and the 31st day of August 2008 at Kimbe, West New Britain Province in Papua New Guinea whilst being employed with the Department of Health dishonestly applied to his own use money in the sum of Three Thousand Eight Hundred and One Kina (K3,801.00), the property belonging to the Independent State of Papua New Guinea.

Count Two:

Mark Mauludu of Kariru Village, Yangoru, East Sepik Province stands charged that he between the 1st day of August 2008 and the 31st day of August 2008 at Kimbe, West New Britain Province in Papua New Guinea whilst being employed with the Department of Health dishonestly applied to his own use money in the sum of Thirty Two Thousand Eight Hundred and Ninety Five Kina and Thirty Toea (K32,895.30), the property belonging to the Independent State of Papua New Guinea.”

The Allegations

2. The brief facts for the first count are:

(a) The Accused is a Health Extension Officer (“HEO”) by profession and was employed as the Chief Executive Officer (‘CEO”) of the Kimbe General Hospital (“KGH”) at the time of the commission of the alleged offence.

(b) On the 21st day of July 2008, the Accused made a claim to the Personnel Section of Kimbe General Hospital for leave entitlements. He claimed entitlements for himself, his wife and all his children including three (3) of his daughters who were over the age of eighteen years. The total entitlement he claimed and received was K18,598.00. On the 15th day of August 2008, a cheque valued at K7,600.00 was made out payable to the Accused and another valued at K10,998.00 was made payable to Air Niugini for the air fares of the Accused and his family.

(c) On 21st day of August, 2008 the Accused instructed the staff of Kimbe General Hospital to cancel the cheque valued at K10,998.00 and convert that into two (2) separate cheques to the value of K5,500.00 and K5,498.00 respectively. The cheque valued at K5,500.00 was made payable to the Accused and the other was made payable to Air Niugini for airline tickets for the Accused and his family.

(d) The State alleged that by Circular Instruction No 36 of 2007 from the Department of Personnel Management dated 12th December, 2007 the Accused was entitled to pay himself only fifty percent (50%) of the total mount of what he is owed for recreational leave fares. By instructing the accounts section of Kimbe General Hospital to pay him a total of K13,100.00 was beyond the fifty percent (50%). The fifty percent (50%) of K18,598.00 was K9,299.00

(e) Hence, the State alleges that the Accused had dishonestly applied to his own use the sum of K3,801.00.

3. The brief facts for the second count are:

(a) The accused is a HEO by profession and was employed as the CEO of Kimbe General Hospital at the time of the commission of the alleged offence.

(b) On the 30th day of October 2008, the accused lodged a claim at Kimbe General Hospital for outstanding overtime and on-call allowances for the period from 2002 to 2006 for duties he performed as Health Extension Officer and Chief Executive Officer .

(c) On the 30th day of October 2008, a cheque valued at K32,895.30 was paid to the Accused being for purported outstanding overtime and on-call allowances from 2002 to 2006.

(d) The State alleged that the Accused was never on the roster for either Kimbe General Hospital or Vanimo General Hospital (where he worked previously as the CEO) and was never entitled to be paid by Kimbe General Hospital because he was the Chief Executive Officer of Vanimo General Hospital from 2002 to 2005.

(e) According to the Memorandum of Agreement Governing the Terms & Conditions of Health Extension Officers in the Health Services with the Department of Personnel Management, a HEO is only paid if he/she is on the roster.

(f) The accused was paid under the rural health category of overtime rate of K7,500.0 per annum, which covers only rural centres or hospitals and not provincial hospitals like Kimbe or Vanimo General Hospitals.

(g) Hence, the State alleged that the Accused dishonestly applied to his own use K32,895.30

The Evidence

4. The documentary evidence tendered by consent are as follows:

(a) Record of Interview in English as Exhibit “A”.

(b) Copy of Leave Application Form as Exhibit “B”.

(c) Copy of the Note to Corporate Service Director dated 15th August, 2008 as Exhibit “C”.

(d) Copy of Cheque No. 021822 dated 15th August, 2008 for K7, 600. 00 as Exhibits “D”.

(e) Copy of Cheque No. 021823 dated 15th August, 2008 for K10, 998. 00 as Exhibits “E”.

(f) Copy of Requisition Form as Exhibit “F”.

(g) Copy of Letter to Mrs. Rita Geno dated 30th June, 2008 as Exhibit “G”.

(h) Copy of the Outstanding Calculations document done by Leana Morea and checked by D. Leach as Exhibit “H”.

(i) Copy of the Letter to Rita Geno dated 17th October, 2008 as Exhibit “I”.

(j) Copy of Cheque No. 408946 dated 30th October, 2008 for K32, 895. 00 as Exhibit “J”.

(k) Copy of the Duty Roster for Medical Workers at Kimbe General Hospital for 2005 to 2006 as Exhibit “K”.

(l) Copy of the Memorandum of Agreement Governing the Terms & Conditions of Health Extension Officers in the Health Services dated January, 2002 as Exhibit “L”.

(m) Copy of the Quotation from Air Niugini with fares for the Mauludu family as Exhibit “M”.

(n) Copy of the Circular Instruction No. 36 of 2007 as Exhibit “N”.

(o) Public Service General Orders – Order No.14 as Exhibit “O”.

(p) Copies of the Concession forms for Mauludu’s children as Exhibit “P”.

(q) Copy of the Letter by Mark Mauludu dated 10th June, 2010 as Exhibit “Q”.

(r) Copy of the Requisition forms for K18, 895. 00 as Exhibit “R”.

(s) Copy of the Requisition forms for K10, 998. 00 as Exhibit “S”.

(t) Copy of the Requisition forms for K32, 895. 30 as Exhibit “T”.

(u) Copy of the Handwritten Note dated 18th August, 2008 by Mr. Mauludu as Exhibit “U”.

(v) Copy of the cancelled Cheque of K5, 500. 00 as Exhibit “V”.

(w) Copy of the Auditor General’s Report as Exhibit “W”.

(x) Copy of Cheque No. 021839 for K5, 500. 00 as Exhibit “X”.

(y) Copy of Cheque No. 021840 for K5, 498. 00 as Exhibit “Y’.

(z) Copy of Circular Instruction No. 49/2001 as Exhibit “Z”.

(aa) Copy of Letter by Dr. Alex Golpak dated 11th March, 2010 as Exhibit “AA”.

(bb) Copy of Letter by Mark Mauludu dated 10th June, 2010 as Exhibit “BB”.

(cc) Copy of Handwritten Note by Mark Mauludu dated 21st August, 2008 as Exhibit “CC”.

(dd) Copy of Handwritten Note by Mark Mauludu dated 17th October, 2008 as Exhibit “DD”.

(ee) Extract from General Orders as Exhibit “EE”.

5. The State called Erica Tore and Detective Senior Constable Derick Tangua who both gave sworn evidence.

6. The evidence of Erica Tore was that she was part of the Audit investigations team from the Health department, that went to investigate the discrepancies found in the Auditor General’s report of 2008 regarding Kimbe General Hospital. She gave evidence of her findings, which was of the two (2) payments made by the Kimbe General Hospital to the Accused. These payments were for the on call and overtime allowance and that of the recreational leave fares.

7. Her evidence regarding the on call and overtime allowance is that the accused can only be entitled to on call and overtime if he is on the roster. She gave evidence that in the course of her investigations she did not find him on the roster.She also gave evidence that he cannot claim for on call and overtime allowances for work done in one hospital from another hospital. This would affect the budgets of the hospitals, because the budgets are different.

8. She further gave evidence that the accused had made claims for overtime and on call...