The State v James Makario (1990) N862

• Jurisdiction: Papua New Guinea
• Judge: Jalina AJ
• Judgment Date: 24 May 1990
• Citation: (1990) N862
• Court: National Court
• Year: 1990
• Judgement Number: N862

Full Title: The State v James Makario (1990) N862

National Court: Jalina AJ

Judgment Delivered: 24 May 1990

N862

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JAMES MAKARIO

Waigani

Jalina AJ

1-4 May 1990

7-11 May 1990

14-18 May 1990

24 May 1990

CRIMINAL LAW — Misappropriation — Application of monies for the use of another — Monies applied for purpose allocated — No evidence that it was not so applied — Strict proof required of such application.

On a charge that the accused dishonestly applied to the use of another person property belonging to another, and for false pretences.

Held

(1) As the application of property of another to the use of another person is an essential element of an offence under Section 383A (1) (a) of the Criminal Code, in addition to the element of dishonesty, it must be strictly proved that the property was used or applied for the use of no other person than the person specified in the indictment.

(2) In the absence of evidence showing that no other person than the person specified the indictment used the money, an accused person is entitled to be acquitted.

(3) The accused is accordingly found not guilty on the first count.

(4) At the time he introduced the Chairman and Committee members specified in the indictment and opened an account in the name of Koruava Community School (Panialavava) he knew that there was no Community School at Panialavava and that the persons he introduced were not duly elected members of the Board of Management.

(5) The accused is accordingly found guilty on the second count.

Counsel

R. Auka with him J Arnie, for the State.

G. Emilio, for the Accused.

Cur adv vult

24 May 1990

JALINA AJ: The accused has been charged with the following counts:

1ST COUNT:

That he between the 17th day of April 1985 and the 5th day of September 1985 at Port Moresby in Papua New Guinea, dishonestly applied to the use of another, Makario Kaita Kau, Four Thousand Kina (K4,000.00), the property of the Central Provincial Government.

2ND COUNT:

That he on the 17th day of January 1987 at Port Moresby in Papua New Guinea by falsely pretending to one, ROGER GALT of ANZ Banking Group (PNG) Limited that one Makario Kaita Kau was the Chairman of Koruava Community School and Kuvari Kuve, Hauhum Moimo and Larrina Mana were Committee Members of the Board of Management of the said school induced ROGER GALT to deliver to JAMES MAKARIO, the said Chairman and the said Committee Members of the said Community School the sum of Three Thousand and Eight Kina (K3,008.00) with intent to defraud.

3RD COUNT:

That he between the 20th day of January 1987 and the 16th day of February 1987 at Port Moresby in Papua New Guinea, dishonestly applied to the use of another Makario Kaita Kau, Two Thousand Five Hundred and Eight Kina (K2,508.00), the property of the Central Provincial Government.

4TH COUNT:

That he on the 16th day of February 1987 at Port Moresby in Papua New Guinea dishonestly applied to his own use Five Hundred Kina (K500.00), the property of the Central Provincial Government.

He has pleaded guilty to the third and fourth counts. After considering the evidence before me I accept the pleas. This judgment is therefore confined to the first two counts.

THE FIRST COUNT

In 1985 whilst the accused was a nominated member of the Central Provincial Assembly, he was given responsibility over the Social and Community Welfare in five (5) districts including the Goilala District where he comes from. Funds were allocated to start a new school in the Koruava area of the Goilala District. The State has alleged that between the 17th day of April 1985 and the 5th day of September 1985 (the dates specified in the indictment) three (3) cheques totaling K4,000 was authorised to be paid to the Chairman of Koruava Community School and were in fact drawn. They were for the building of a double classroom and teacher's residence at Koruava. There was no school at Koruava at the time. Thus here was no Chairman of Board Management of Koruava Community School. The State alleged that the accused cashed the cheques totaling K4,000 and applied the money to the use of another, namely Makario Kaita Kau, the property of the Central Provincial Government.

One of the principal witnesses for the State was Br Brendan Crowe, the current Catholic Education Secretary for the Diocese of Bereina. He begun in that position in January 1986. The part of his evidence which is relevant to this count is that as part of his responsibilities he patrolled the schools in the Goilala District. His first visit to Koruava was in the week after Easter. His second visit was in June and his third visit was in October or November 1986. After he took up his position as Catholic Education Secretary the parish priest informed him that the people of Koruava wanted a Community School and asked him to help get the school started. He visited the site where work had been...