The State v Enos Steven Ulaias (2006) N3033

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 13 February 2006
• Citation: (2006) N3033
• Docket Number: CR 846 of 2004
• Court: National Court
• Year: 2006
• Judgement Number: N3033

Full Title: CR 846 of 2004; The State v Enos Steven Ulaias (2006) N3033

National Court: Kirriwom J

Judgment Delivered: 13 February 2006

N3033

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.846/04

THE STATE

-v-

ENOS STEVEN ULAIAS

LAE: KIRRIWOM, J.

2006: 7, 8 & 13 February

CRIMINAL LAW – Misappropriation – Accused dealing with property dishonestly – What amounts to misappropriation – Proof essential ingredients of the offence – Criminal Code, s.383A(1)

Practice and Procedure – Submission of No-Case-to-Answer – lack of evidence establishing essential ingredients of the offence – Evidence tendered inconsistent, incredible and unsafe to return verdict of guilt even without the accused giving evidence – Acquittal of the accused ordered.

Cases cited:

1. Roka Pep v The State (No.2) [1983] PNGLR 287

2. Paul Kundi Rape vThe State [1976] PNGLR 96

Counsel:

M. Ruarri for the State

S. Daniel for the Accused

RULING ON NO-CASE-TO-ANSWER

13 February, 2006

KIRRIWOM, J.:

1. At the close of the State case where the Accused Enos Steven Ulaias is appearing before the court charged with three counts of misappropriation under section 383 of the Criminal Code, Mr. Daniel, counsel for the Accused made a no-case-to-answer submission relying on the Supreme Court case of Roka Pep v The Sate (No.2) [1983] PNGLR 287. The Supreme Court in Roka Pep reiterated the principles that were earlier discussed and enunciated in Paul Kundi Rape v The State [1976] PNGLR 96 which have laid the basis for the defence applying to the court after prosecution has closed its case seeking acquittal of the accused person on a criminal trial on two basic grounds: (1) as at the end of the prosecution case there is no evidence at all adduced to proved one or more elements of the charge agains the accused or (2) the evidence before the court was so unreliable, unsatisfactory and unsafe for a conviction to be founded on it.

2. Section 383A (1) provides:

“(1) A person who dishonestly applies to his own use or to the use of another person¾

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person, is guilty of the crime of misappropriation of property.”

3. The elements of the charge requiring proof by the prosecution by virtue of this provision of the Code are:

a. A person

b. Dishonestly applied

c. To his own use or to the use of another

d. Property

e. Belonging to another; or

f. Belonging to him but subject to trust etc.

4. The Accused is indicted of the following three counts:

a. count one:

Between 19 February 2002 and 23 December, 2003 at lae he dishonestly applied to his own use Fourteen thousand six hundred and twenty five kine and fifty six toea (K14,625.56) property belonging to Internal Revenue Commission.

a. count two:

Between 27 November 2003 and 1 December 2003 at Lae he dishonestly applied to his own use Fourty Five Thousand Kina (K45,000) property belonging to Internal Revenue Commission.

a. count three:

Between 31 December 2003 and 27 February 2004 at Lae he dishonestly applied to his own use K8, 971.08 property belonging to Internal Revenue Commission.

5. The prosecution presented the following statement of facts for purpose of arraignment of the accused:

The accused was employed by the Internal Revenue Commission Customs Office here in Lae as Budget and Administration Officer between 2002 and 2004. During the period of his employment he misappropriated monies belonging to IRC for the operations of Customs Office here in Lae and the region.

In respect of Count 1 the accused took the sum of K14,625.56 from the IRC account at Morobe Provincial Treasury for purpose of paying unauthorized claims for salaries and wages for non-existent persons or ghost names and also for student trainees working with IRC at the time who were not entitled to such payments.

In respect of Count 2, the accused took K45,000 from the same account through the Provincial Treasury Office in Lae. Accused obtained quotations and invoices from a company in Lae called East West (1) Ltd for purposes of purchasing parts for IRC vehicles and for repair works on the said vehicles. He then raised requisitions attaching the invoices which he forwarded to Treasury Office in Lae for cheques to be raised in two (2) lots of payments:

(1) K21,483.90 and

(2) K23,516.10.

These cheques were raised between 27 November 2003 and 1 December 2003 which cheques were paid to East West (No.1) Ltd for two motor vehicles from that company.

In respect of count 3, the accused took K8,971.09 from the same IRC account between 31 December 2003 and 27 February 2004 by obtaining airline tickets for that value from Air Niugini for an officer of IRC based in Madang for leave tickets for the officer and family then converted those tickets for his own use by changing the routes for travel.

6. In order for there to have been misappropriation the prosecution must lead evidence supporting the following essential ingredients of each count:

a. Count One:

i. The Accused

i. Dishonestly applied

i. To his own use or to the use of another

i. Property in money valued at K14,625.56.

i. Belonging to Internal Revenue Commission Customs Lae.

a. Count Two:

i. The Accused

i. Dishonestly applied

i. To his own use or to the use of another

i. Property in money valued at K45,000.

i. Belonging to Internal Revenue Commission Customs Lae.

a. Count Three:

i. The Accused

i. Dishonestly applied

i. To his own use or to the sue of another

i. Property in airline tickets valued at K8,971.09.

i. Belonging to Internal Revenue Commission Customs Lae.

7. State called total of six witnesses out of a list of fifteen witnesses whose names appear on the back of indictment. The first witness was Mr Michael Otari who is the Regional Director of IRC Customs Office in Lae. His evidence was very general and was relevant to the disappearance of funds or moneys missing from the office under direct handling by the accused how he dealt with the accused at the office level . He then commissioned a thorough internal investigation by IRC Custom’s in-house investigators who subsequently referred the case to the Police.

8. The next State witness was Pauden Patimos. Her evidence was relevant only to the third count which drew objection from the defence. Mr. Daniel argued that it would be more logical and sensible for the State to call its witnesses in the order in which the charges are laid out in the indictment instead of going from the last count to the first. Wile the court was agreeable to the view, given the difficulty that the prosecution was having in assembling and even locating its witnesses, realizing that wishful thinking could only remain figment of imagination. There is no legal requirement for the prosecution to call its witnesses in a particular order or sequence although in practice some coherent and logical sequence of calling witnesses could assist in orderly and expedient management of the case to quick finality. But given the long history of the case and the predicament the prosecution was facing was very well appreciated.

9. Ms Patimos gave evidence of dealing with the accused during the period in question. Her evidence is only relevant to establishing the first element of second count, the identity of the persons she dealt with as being the accused whom she well knew as the officer from IRC Customs she dealt with regularly.

10. The next State witness was Sunny Monston Bangkok, General Manager for East-West (1) Limited. His evidence related to the second count. But his evidence is self-serving and neither advances nor defeats the prosecution case. He provided the quotations for the two motor vehicles, a Toyota hi-lux single cab and a Mitsubishi L200 double cab and he obtained payments for them in bank cheques.

11. Jeffery Tambaute gave evidence of carrying out internal investigation of the allegations against the accused and referring the matter to the Police. He is a crucial witness in the State case who is responsible for collecting all material evidence and in collaboration with the Police placing them before the court. He gave evidence of locating one unused airline ticket in the name of Male found in the accused’s residence during search conducted under search warrant. That ticket has not been produced in court.

12. The last State witness was Philemon Nagepu. He is the Provincial Treasurer and the financial delegate from the provincial treasury office who gives the final approval for cheques to be raised when the claim had gone through very elaborate and thorough screening. He made reference to two specific claims involving sums of K23,516.10 and K21,477.90 and said that as far as he was concerned, there was nothing wrong with the claims when they reached him and he authorized payment.

13. After all these evidence is analyzed and rationalized, for purpose of establishing prima facie case in respect of each of the three count, the State has established in each of the three count the following:

a. Count one-

None of the essential ingredients of the offence in this count have been established apart from the blunt assertion that a sum of...