The State v Kais Pohien

• Jurisdiction: Papua New Guinea
• Judge: Liosi, AJ
• Judgment Date: 14 June 2016
• Citation: (2016) N6350
• Court: National Court
• Year: 2016
• Judgement Number: N6350

Full : CR No 1049 of 2013; The State v Kais Pohien (2016) N6350

National Court: Liosi, AJ

Judgment Delivered: 14 June 2016

N6350

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR ON. 1049 OF 2013

BETWEEN

THE STATE

AND

KAIS POHIEN

Kundiawa: Liosi, AJ

2016: 30 April & 14 June

CRIMINAL LAW – Misappropriation – Criminal Code Section 383A (1) (a) & (2) (b) (d). Evidence – Circumstantial – Credible evidences or mere conjuncture and surmise – Inferences to be drawn – Whether other inferences consistent with innocence excluded -
Standard of proof – Proof beyond reasonable doubt – Prosecution carries onus of proof – Onus of proof must not be shifted to accused.
Right of accused to remain silent – Accused electing to remain silent –Effect of silence discussed Constitution section 37(4)(a)& (10) – Prima facie case established against accused – Case of Paulus Pawa v. The State distinguished.

PNG Cases Cited:

Allan Oa Koroka v. The State and Mariano Wani Simon v. The State 1988 – 89 PNGLR 131

Jimmy Mostata Maladina v. The State (2016) SC 1495
Paulus Pawa v. The State [1981] PNGLR 498
The State v. Bob Morris N1743
The State v. Daniel (1988-89) PNGLR 580
The State v. Kindagl (1990) N846

The State v. Tom Morris [1981] PNGLR 493

Overseas Cases Cited:

Azzopardi v. R (2001) 205 CLR 50

Barca v. The Queen (1975) 50 ALJR 108
Peacock v. The King (1911) 13 CLR 619
Plomp v. The Queen (1963) CLR 234

Weissenstenier v. R 178 CLR 217

Counsels:

P. Tengdui, for the State
M. Yawip, for the Accused

Ruling on Verdict

14th June, 2016

The Charge

1. LIOSI AJ: The accused is charged that he between the 3rd day of January 2012 and 6th day of November 2012 at Kundiawa in PNG whilst been employed as a salesman by Sika Limited dishonestly applied to his own use and to the use of others various hardware store goods total valued at K462, 864.00 the property of his employer namely Sika Limited.

Facts for Arraignment

2. The Facts put to him on arraignment upon which he pleaded not guilty are these. It is alleged that the accused Kais Pohien was employed by Sika Limited between January 2012 and November 2012. He was employed in the hardware section of its supermarket. It is alleged that between the 3rd of January 2012 and 6th November 2012, the accused and one other, a Steven Mek, who was also employed at the time as the shop assistant at the hardware section, sold out substantial amount of hardware materials belonging to their employer Sika Limited. Between the period, the accused and his accomplice sold hardware goods and materials totalling K495, 103.20, which money was never paid to their employer.

Ø The accused dishonestly wrote out false receipts to unknown customers to collect their money in exchange for hardware goods. He then manipulated the computer entries to evade detection of his scheme to steal from his employer.

Ø This had been going on for the period from the 3rd of January to the 6th of November 2012. On the 7th of November 2012, the accused was caught selling off certain hardware materials worth K8, 512.90. He was arrested and charged, along with his accomplice, Steven Mek. The District Court found the accused guilty of stealing from his employer and sentenced him to 1 year 7 months imprisonment.

Ø Sika Limited then conducted further investigations and detected that from the period 3rd January 2012 to 6th November 2012, the accused and his accomplice had misappropriated substantial hardware goods and materials totalling K494, 103.20. The accused was again referred to the police and after further investigations, he was charged with the offence.

Ø State has now filed an indictment against the accused charging him with misappropriation of hardware goods and materials valued at K462, 864.00 the property of his employer, Sika Limited.

Plea

3. The accused pleaded not guilty to the charge of misappropriation under section 383(A) (1) (a) & (2) (b) (d) Criminal Code.

Trial

4. To prove its case, the State tendered into evidence the following documentary evidence.

a. The original pidgin record of interview of the accused. (Exhibit A1)

b. The translated English version of the record of interview. (Exhibit A2)

c. The statement of the investigating officer Sergeant Temgo Nime dated 28th March 2013. (Exhibit B)

d. Statement of corroborator Constable John Joseph dated 28th March 2013. (Exhibit C)

e. The State also tendered through state witness Samuel Ariaratnam a list of hardware materials misappropriated consisting of 8 pages dated from 3rd January to 6th November 2012. (Exhibit D)

Witness

5. The State only called one witness Mr. Samuel Ariaratnam. His evidence is that he is from Sri Lanka and he has been in PNG for 32 years, 16 of which was spent in Simbu. He is the Managing Director of the company Sika Limited for the past 14 years. The company is involved in general merchandising through 4 different sections namely, bakery, hardware, supermarket and wholesale. The company appointed supervisors to supervise the trading of those sections. The supervisor then reports to the General Manager who then reported to him as the Managing Director.

6. The accused was the supervisor for the hardware section. The section had two other employees. One was Steven Mek. The other he could not recall his name. The accused was the supervisor for the relevant period from January to November 2012. He never took any long leave of absence and was always at work. His duties as supervisor entailed being responsible for the stocks in the section. He and Steven were responsible for making entries in the computer of any sales done in the section. Once an entry was made, the computer automatically recorded and adjusted materials held in stock.

7. In this case, he gave evidence that the materials sold were entered in the computer as office expenses for which the computer adjusted materials held in stock. As it was entered as office expense, the computer did not adjust the daily cash receipts and thus the theft went unnoticed.

8. The witness gave evidence that on the 7th of November 2012, they got a tip off from someone that the accused had sold to an unknown customer certain hardware materials at a reduced cost price. The witness then directed his manager to conduct an investigation in which it was discovered the accused had sold 81 sheets of v crimp and 40 sheets of plywood. The cost of the materials was around K8, 500.00. When the Manager checked against the computer records, the materials were entered as office expenses when it should have been entered in the register as general cash sales.

9. Upon further investigation the accused admitted to selling the materials for K3, 000.00 only and kept the money for his own use. He was then referred to the Police who arrested him for the offense committed on the 7th of November 2012. He was tried at the District Court and was convicted and sentenced to imprisonment for 1 year 7 months.

10. The witness gave evidence that after the discovery of the scheme, the company conducted further investigations into the operations of the hardware section and discovered that substantial hardware materials were taken out in the same way spanning a period from the 3rd of January 2012 to the 6th November 2012. The company referred the matter to Police and the accused was again charged with the offenses committed between the 3rd January and 6th November 2012.

11. He finally said that the accused, as the supervisor of the hardware section did not report any materials missing or whether there were any shortfalls in the daily takings. Because the computer automatically adjusted the stocks as office expense, it did not show in the daily cash register record. As the section was dealing with a lot of materials, over three hundred items, the witness told the Court in answer to a question in cross examination that it was practically impossible to do daily stock counts and the offending went unnoticed until the tip off when the scheme was discovered.

12. He also said there was no major maintenance done to the shops during the period that would explain the materials being taken out and put down in the computer as office expenses. That was the oral evidence given by the witness Samuel Ariaratnam.

Cross Examination of Ariaratnam

13. In answer to a question whether it is common practice to count daily takings against the stock he said yes. That is done by checking the amounts with the goods sold. However this is normally balanced by the computer itself when a good is sold and a receipt is recorded this is automatically deducted from the stock. So it always balances out. He further said as there are over 300 items in stock it is impossible to manually check this in one day. When questioned on exhibit “D” which was the list of hardware materials misappropriated consisting of 8 pages dated from 3rd January to 6th November 2012, he said this were items removed as office expenses from the computer. He agrees it is not the original computer printout list. When asked if anybody else accessed or made entries in the computers, he said it was...