The State v Graham Yotchi Wyborn (2004) N2847

• Jurisdiction: Papua New Guinea
• Judge: SALIKA, J
• Judgment Date: 20 July 2005
• Docket Number: CR 1235 of 2002
• Citation: (2005) N2847
• Court: National Court
• Year: 2005
• Judgement Number: N2847

Full Title: CR 1235 of 2002; The State v Graham Yotchi Wyborn (2004) N2847

National Court: SALIKA, J

Judgment Delivered: 20 July, 2005

N2847

PAPUA NEW GUINEA

[National Court of Justice]

CR 1235 of 2002

The State

v

Graham Yotchi Wyborn

DARU : SALIKA, J

09, 12, 13, 14, 15, 19, 20 July, 2004

Criminal Law – Accused director of a company – accused charged with criminal offence as director of company – whether defence of corporate veil available – corporate veil lifted.

Cases Cited:

Salomon v Saloman & Co (1897) AC22

Foss v Harbottle (1843) 2 HARE 461, Ch 12 LJ 319

CBS INC and CBS Records Australia Ltd Bali Merchants Pty Ltd v Ramu Investment Pty Ltd (CB5)(1978) PNGLR 66

Jacob Luke v John Ralda (1992) PNGLR 549

Odata Limited v Ambusa Corporate Oil Mill Limited & National Provident Fund Board of Trustees N2016

Andrew Daiva & Ome Ome Forests Ltd v Lawrence Pukali and Benedict Waide N2289

Kappo Limited v Hau & Ors SC 520

Mr Kupmain for the State

Mr Kimbu for the Defendant

20 July, 2005

The accused Graham Yotchi Wyborn has been charged with four counts of misappropriation pursuant to s.383A of the Criminal Code Act.

For completeness the charges are :-

First Count:

Graham Yotchi Wyborn of Daru Island, Western Province stands charged that he between 24 day of December, 1999 and 31 day of March 2000 at Daru in Papua New Guinea dishonestly applied to his own use and to the use of Lisa Wyborn and Sikani Engineering Limited monies in the sum of Fifty Eight Thousand Two hundred and Seven Kina an d Eighty Six Toea (K58,207.86) the property of the Independent State of Papua New Guinea.

Second Count

Graham Yotchi Wyborn of Daru Island, Western province stands charged that he on the 13th day of March 2000 at Daru in Papua New Guinea dishonestly applied to the use of Elaine Marina and Norman Andrew Benson money in the sum of K1,149.43 the property of the Independent State of Papua New Guinea.

Third Count.

Graham Yotchy Wyborn of Daru Island, Western Province stands charged that he on the 24th day of December 1999 at Daru in Papua New Guinea dishonestly applied to the use of Kevin Wyborn monies in the sum of K5,000 the property of the Independent State of Papua New Guinea.

Fourth Count

Graham Yotchi Wyborn of Daru Island Western Province stands charged that he on the 17th day of January 2000 at Daru Papua New Guinea dishonestly applied to his own use and to the use of others money the sum of K1,000 the property of the Independent State of Papua New Guinea.

THE ALLEGATIONS

The State alleged that a verbal contract was entered into between the Daru Town Authority and Sikani Engineering Limiter (hereinafter referred to as Sikani) some time in 1999. This was after the project for the building of the Daru Town market had been advertised for public tender Sikani won the tender ahead of four other bidders. The total contractual sum for the project was K180,000.00 On 24 December 1999 the Mayor of Daru Town Mr Lawrence Tom on behalf of the Daru Town Authority presented a K100,000 cheque number 4230 to Kevin Wyborn on behalf of Sikani as an advance and part payment to start the construction of the Daru Town Market. The agreement to start the work with K100,000.00 was verbal. It was also part of the market agreement that the balance of K80,000.00 would be paid later. As to when that was to be paid is not ascertained.

The State alleged that the K100,000 was deposited into the Sikani account number 294 6616893 which was held at the then Papua New Guinea Banking Corporation in Daru (now Bank South Pacific). The State further alleged that cash withdrawals were made thereafter to the tune of K82,535.00 from the Sikani account. Some of the money was used to purchase materials in Port Moresby and freighted to Daru.

The State alleged that a total of K65,357.29 of the K100,000.00 was misappropriated by the accused. The K65,357.29 is the total aggregate from the four counts of misappropriation.

The State alleged in the first count that the accused dishonestly applied to his own use and to the use of Lisa Wyborn and Sikani K58,207.86 in that various cash amounts totaling K58,207.86 were withdrawn from the K100,000.00, deposited into the Sikani account, were for purposes other than the construction of the Daru Town Market.

In relation to the second count the State alleged that the payment of K1,149.43 to Elaine and Norman Andrew Benson from the K100,000.00 deposited into the account of Sikani, were for purposes other than for the construction of the Daru Town Market.

In relation to the third count the State alleged that the payment of K5,000 to Kevin Wyborn drawn from the K100,000 deposited it into the Sikani account was a payment for purpose s other than for the construction of the Daru Town Market.

In relation to the fourth count the State alleged that K1000.00 was drawn out from the K100,000.00 deposited into the Sikani Account to purchase a fridge which is outside of the purpose for which the K100,000 was given.

THE EVIDENCE

The State with the consent of the Defence tendered the following documents into evidence

1 Statement of Gabia Gagarimabu

2 Statement of Sebastian Bagrie

3 Statement of Lawrence Tom

4 Statement of Mabata Gabutu

5 Statement of Ian Ta’bara

6 Statement of Daryl Haste

7 Statement of Kabai Kousa

8 Record of Interview

9 Cheque remittance Advise which is page No 58 in the District Court depositions.

10 Internal General expense form which is page 59 in the deposition

11 Requisition for Expenditure which is page 60 of the deposition.

12 Receipt of Bank Deposit slip which is page 74 of the deposition

13 Deposit slip dated 24 December 1999 which is page 75 of the deposition.

14 PNGBC Customer account Record which are pages 76 and 77 in the deposition.

15 Bank Statement of Sikani Account No 294-006616893 which are pages 78 to 81 of the District Court deposition.

16 Invoice number T9918 dated 25 January 2000 which are pages 86 to 99 of the depositions.

17 28 cheques which witness Mabata Gabutu deposed to in her affidavit which are pages 82 – 85 and pages 100 , 124 and 131 in the District Court depositions.

18 Documents relating to transactions between Yatala Limited and Sikani.

The documentary evidence was tendered into evidence during different stages of the trial in that some were tendered earlier than others.

The State then called Jacob Tabua into evidence. His evidence was that he is the Managing Director of a company Westsun Construction Limited. Mr Tabua said on the 4 February 2000 Mr Graham Wyborn went to his house or place and they discussed a few things about the market . He said Mr Wyborn wanted to sub –contract his company to build the market. He then made a verbal agreement with him to sub –contract and told him he was interested. He said they then discussed the physical planning side of the building and how he would be paid. He said his company was involved in the building and construction industry.

On the same day 4 February 2000 he wrote out an invoice on behalf of his company quoting K36,000 as the labour cost for the market project. He said he requested either a 50% or 25% deposit upfront before he could commence work on the project. He said the accused then told him he would give him the 50% deposit and asked him to write out a receipt for K18,000 as part payment for labour costs. He said he wrote the receipt and gave it to the accused. He said after that was done the accused has never paid the money to him or his company and he said his company ended up not doing any work on the project.

In cross examination the witness was asked if he received any money fro the Managing Director of Sikani to which he said the accused gave him K5,000.00 after he asked the accused to help him with school fees for his children and for other personal reasons. At this juncture I note that the witness was never asked if K18,000 had been paid to him or his company by Sikani or the accused as shown on the receipt. It was ever put to him that money was paid. The invoice dated 4 February, 2000 and the receipt also of the same date were tendered into evidence without any objection, not that there was any ground for objection for the two documents to be rejected. They were marked as Exhibits “I” and “J” respectively.

The next witness was Mr Avoa Mareapo. He was Acting Daru Town Manager at the material time. He gave evidence of the K100,000 cheque presented to Kevin Wyborn. He said the cheque had been brought by the then South Fly Member of Parliament Gabia Gagarimabu who presented it to the Daru Town Mayor Lawrence Tom on 26 December 1999. He said in January 2000 the Deputy Mayor Dibura Moiba gave the Cheque to Kevin Wyborn as the accused was out of Daru. The witness identified a copy of the cheque after it was shown to him and it was tendered into evidence without any objection. The cheque number 4230 is Exhibit K in these proceedings. He said it was his duty to ensure that the Daru Town market project got off the ground. He said he had briefings with the Managing Director of Sikani about the market project and was told the funds for the project were still with the Member of Parliament. He said after the cheque was given to Sikani in January of 2000 he on 7 June 2000 did any inventory of materials. He said that was the second time for him to do that at the Department of Works...