The State v Andrew Ludwig Posai (2004) N2618

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 16 June 2004
• Citation: (2004) N2618
• Court: National Court
• Year: 2004
• Judgement Number: N2618

Full Title: The State v Andrew Ludwig Posai (2004) N2618

National Court: Sevua J

Judgment Delivered: 16 June 2004

1 CRIMINAL LAW—Misappropriation—Sum of K10,000.00—Public funds—Accused former Member of Parliament for Kandrian and Glouster Electorate—Former Minister for Home Affairs and Youth—Money intended for projects for three Youth Groups and a Women's Group—Paid into private Joint Super Saver Account—Money drawn from that account in name of accused and another and paid to other persons.

2 Brian Kindi Lawi v The State [1987] PNGLR 183, The State v Sylvanis Simebo & 2 Ors, unreported and unnumbered, 30 May 2000, (CR 1220/2000, CR 97/2000 & CR 722/2000) referred to

Held:

(1) The act of depositing the moneys into the accused's private account when he should have paid the money to the Pasis Manua Youth Group, Gumi Ranto Youth Group, West Arowe Youth Group and Besse Women's Group who requested the money and the cheques were made payable to them, amounted to dishonestly applying the money.

(2) Paying the moneys to the Kandrian Mothers Group and the Catholic Youth Rally in Kimbe amounted to dishonestly applying the moneys to the use of other persons.

(3) The accused is guilty of the crime of misappropriation

___________________________

N2618

PAPUA NEW GUINEA

[In the National Court of Justice]

CR 597 of 1999

THE STATE

v.

ANDREW LUDWIG POSAI

Kimbe: Sevua, J

2004: 1st, 2nd & 16th June

CRIMINAL LAW – Misappropriation – Sum of K10, 000.00 – Public funds – Accused former Member of Parliament for Kandrian and Glouster Electorate – Former Minister for Home Affairs and Youth - Money intended for projects for three Youth Groups and a Women’s Group – Paid into private Joint Super Saver Account – Money drawn from that account in name of accused and another and paid to other persons.

Held:

(1) The act of depositing the moneys into the accused’s private account when he should have paid the money to the Pasis Manua Youth Group, Gumi Ranto Youth Group, West Arowe Youth Group and Besse Women’s Group who requested the money and the cheques were made payable to them, amounted to dishonestly applying the money.

(2) Paying the moneys to the Kandrian Mothers Group and the Catholic Youth Rally in Kimbe amounted to dishonestly applying the moneys to the use of other persons.

(3) The accused is guilty of the crime of misappropriation

Case cited

Brian Kindi Lawi v The State [1987] PNGLR 183

The State v Sylvanis Simebo & 2 Ors, unreported and unnumbered, 30the May 2000, (CR 1220/2000, CR 97/2000 & CR 722/2000)

Counsels

F.Popeu for State

O.Oiveka for Accused

16th June 2004

SEVUA, J: The accused, Andrew Ludwig Posai of Amgen village, Gasmata, West New Britain Province, is charged that between 2nd October and 31st October 1992 at Kimbe, he dishonestly applied to his own use and to the use of one other person the sum of K10, 000.00 the property of the Independent State of Papua New Guinea.

The facts were that in 1992, the accused was the elected Member of Parliament for Kandrian Gloucester Open Electorate in the National Parliament and held the position of Minister for Home Affairs and Youth. In that capacity, he received various requests from youth groups for funding their projects. In the present case, the accused, as Minister, received requests for funds from Pasis Manua Youth Group, Gumi Ranto Youth Group, West Arowe Youth Group and Besse Community Service (Womens Group) all from his own electorate.

On 2nd October 1992; four cheques, drawn on the Bank of Papua New Guinea, were processed and made payable in the names of these four groups. Cheque No 372203 in the sum of

K2, 000.00 was raised for Pasis Manua Youth Group. Cheque No 372205 for K2, 000.00 was raised for Gumi Ranto Youth Group. Cheque No 372207 also for K2, 000.00 was raised for West Arowe Youth Group. And finally, cheque No 372219 for a sum of K4, 000.00 was raised for Besse Community Service.

On about 9th October the accused deposited all four cheques into a private Joint Super Saver Account No 04800 – 10494620 conducted at the Kimbe Westpac Bank Branch in his joint name and that of one Janet Kirkman. Between 9th October and 18th December 1992, the accused and Janet Kirkman were alleged to have withdrawn the money from that account and dishonestly applied it to their own use, thereby contravening s. 383A (1) (a) & (b) and 2 (b) of the Criminal Code.

The accused pleaded not guilty to the charge and so the State adduced evidence from the

Westpac Bank Manager, Kimbe Branch in respect of various bank records that come under his responsibility.

The defence objected to the evidence of the only State witness, Yawe Tau Salem on the basis that his evidence would be hearsay. However, the State was not calling him to testify as to the documents he dealt with personally, but as to the bank records that came to his possession in his capacity as the Manger therefore having the overall responsibility of the management of the Branch documents. The defence objection was overruled on the basis that the witness is the Bank Manager in Kimbe, therefore in that capacity; he has managerial responsibility over all matters including the possession of bank records and documents.

Most of the documentary evidence was tendered by consent of the accused and those documents are not really in dispute. The documents supporting the requests by the four groups and the processing of the cheques were not disputed by the accused. In fact the accused denied the charge on the basis that he did not withdraw the money therefore did not misappropriate the money. But as will be seen from his own evidence, that plea was contradicted by his sworn testimony and his interview with police that he admitted diverting some of the money to persons other than the recipients named in the original cheques.

The documentary evidence in Exhibit “B” to Exhibit “N” inclusive are actual photocopies of requisitions for expenditures, general expenses forms and remittance advices directly relating to the four cheques made payable to the four groups. The copies of the cheques raised in the name of each of those four groups are not in dispute. I am satisfied that four cheques were processed and made payable to those groups.

Exhibit “O” is a copy of the Bank of Papua New Guinea (hereinafter BPNG) Cheque No. 372203 dated 2nd October 1992 in the sum of K2, 000.00 made payable to Pasis Manua Youth Group. Exhibits “M” and “N” are General Expenses Form and Remittance Advice respectively in support of that cheque. Exhibit “H” is a copy of BPNG Cheque No. 372205 dated 2nd October 1992 in the sum of K2, 000.00 drawn in favour of Gumi Ranto Youth Group. Exhibits “F” and “G” respectively are General Expenses Form and Remittance Advice relating to that cheque. Exhibit “Ë” is a copy of BPNG Cheque No. 372207 dated 2nd October 1992 in the sum of K2, 000.00 payable to West Arowe Youth Group. Exhibits “C” and “D” respectively are General Expenses Form and Remittance Advice respectively in support of that cheque. And finally, Exhibit “K” is a copy of BPNG Cheque No. 372219 dated 2nd October 1992 for the sum of K4, 000.00 in favour of Vesse Community Service. Exhibits “Ï” and “J” respectively are General Expenses Form and Remittance Advice in support of that cheque.

Exhibit “P” is a deposit form dated 6th October 1992 for the sum of K10, 000.00 paid into Account No 480010494620 in the name of the accused, Andrew Posai. In the same document, the reverse side of it shows the amount in each cheque with the name of the four groups referred to above. The money was deposited into the accused’s account at the Westpac Bank at Kimbe. The Account Statement, which is exhibit “R”, shows that the sum of K10, 000.00 was deposited on 9th October 1992 into Account No 4810494620 in the name of Andrew Posai. Page 1 of that document shows the transactions in that account between 30th September and 13th November 1992. This evidence is important as it shows that the account under the accused’s name was either established on 30th September 1992 or earlier than that. I consider that this is crucial to the issue of “intention” of the accused.

The accused testified on oath and called two witnesses. In essence his evidence is that at the material time he was the Minister for Home Affairs and Youth. He recalled that there were many requests from various groups in West New Britain Province for funding and that he had had four cheques in his possession for three youth groups; K2, 000.00 for West Arowe Youth Group, K2, 000.00 for Gumi Ranto Youth Group, K2, 000.00 for Pasis Manua Youth Group and K4, 000.00 for Besse SDA Mothers Group. He brought the cheques to Kimbe, however he said due to the remoteness of the areas he had to return to Port Moresby so decided to deposit the money into an account to preserve the validity of the cheques...