The State v Andrew Baine [1990] PNGLR 1

• Jurisdiction: Papua New Guinea
• Judge: Brunton AJ
• Judgment Date: 25 September 1989
• Citation: [1990] PNGLR 1
• Court: National Court
• Year: 1990
• Judgement Number: N777

Full Title: The State v Andrew Baine [1990] PNGLR 1

National Court: Brunton AJ

Judgment Delivered: 25 September 1989

N777

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BAINE

Waigani

Brunton AJ

19-21 September 1989

25 September 1989

CRIMINAL LAW — Evidence — Handwriting — Comparison of — Expert evidence not essential — Judge sitting alone to warn himself — Evidence Act (Ch No 48), s 31.

EVIDENCE — Handwriting — Comparison of — Expert evidence not essential — Judge sitting alone to warn himself — Evidence Act (Ch No 48), s 31.

The Evidence Act (Ch No 48), s 31, provides:

"A comparison of a disputed handwriting with a sample of handwriting proved, to the satisfaction of the Court, to be genuine may be made by witnesses, and the handwritings and the testimony of the witnesses respecting them may be submitted to the Court as evidence of the genuineness or otherwise of the handwriting in dispute."

Held:

Although expert evidence is not essential for a tribunal of fact to come to a conclusion on a comparison of disputed handwriting, a judge sitting alone in a criminal trial must warn himself of the dangers involved in proceeding without expert testimony.

O'Sullivan v The Queen (1969) 53 Cr App R 274 at 282, adopted and applied.

R v Hobart Magalu [1974] PNGLR 188, considered.

Cases Cited

The following cases are cited in the reported judgment:

O'Sullivan v The Queen (1969) 53 Cr App R 274.

R v Hobart Magalu [1974] PNGLR 188.

Trial

This was the trial of an accused on charges of misappropriation under s 383a (1) (a) of the Criminal Code (Ch No 262).

Counsel:

W Soi and L K Kalinoe, for the State.

M M Doiwa, for the accused.

Cur adv vult

THE CHARGE

BRUNTON AJ.: The accused was indicted under s 383a (1) (a) of the Criminal Code (Ch No 262) that between 30 December 1982 and November 1983, at Kupiano, he misappropriated (dishonestly applied to his own use) K7,800.50, which was the property of the State.

The State case was that the accused was the plant and transport clerk at Kupiano between 1982 and 1983. During part of that period his father-in-law Mr Lawrence, in whose house he lived, was the district office driver. Mr Lawrence bought a red utility which was available for hire. The accused acted as an agent for his father-in-law, and looked after the vehicle. From time to time the vehicle was hired to various government officers at Kupiano in the performance of their duties. It was alleged that the accused made claims against the State and that some of the claims were false, for vehicle hire that did not take place at all. In other instances it was alleged that the vehicle hire did take place, but that the accused was paid twice for the service. As a result of the false claims, and duplicate claims it was alleged that the accused dishonestly received money from the State and that he applied it to his own use.

THE ELEMENTS OF THE OFFENCE

The State carried the onus of establishing beyond reasonable doubt that the accused (a person):

(a) dishonestly

(b) applied to his own use, or the use of another

(c) property belonging to another.

The evidence before the Court showed that the accused had received cash (property), belonging to another (the State) for vehicle hire. Exhibit E, tendered by the State, which was a schedule of paid vouchers, showed that the State had paid a total of K20,033 to Mrs Mareta Lawrence, the mother-in-law of the accused. On the face of that document the accused confirmed that he received K15,881, which was payment for the vehicle hire by the State of the Lawrence's utility.

Of course there is nothing criminal about a business hiring vehicles to the State, so two important issues were outstanding in this case. The first was whether or not the accused had received any portion of the K20,033 "dishonestly", and secondly, how much money was it that he had received "dishonestly", as opposed to how much money he had received as part of a business arrangement? Here, the second issue was entwined within the first, because it was only possible to identify the quantum of this misappropriated property when it was established that a particular transaction was dishonest.

THE GENERAL EXPENSE FORM

The State tendered in evidence 76 general expense (FF4's) which were the vouchers for payments made to Mrs Mareta Lawrence of Maopa No 1 Village, Kupiano, in respect of private vehicle hire, between 18 December 1982 and 27 October 1983.

These vouchers were tendered in two exhibits and each voucher was identified by a separate...