The State v Nathan Kovoho (2005) N2810

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2005
• Citation: (2005) N2810
• Docket Number: CR No 163 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2810

Full Title: CR No 163 of 2005; The State v Nathan Kovoho (2005) N2810

National Court: Cannings J

Judgment Delivered: 22 March 2005

N2810

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 163 OF 2005

THE STATE

V

NATHAN KOVOHO

BUKA : CANNINGS J

18, 22 MARCH 2005

RULING ON NO CASE SUBMISSION

Criminal Law – indictable offences – Criminal Code, Subdivision VI.1.C, offences analogous to stealing – Section 383A, misappropriation of property – accused pleaded not guilty to misappropriation of K31,500.00, allegedly the property of a company – prosecution’s case consisted of 16 exhibits, tendered by consent – submission of no case to answer – application that case should be withdrawn from the tribunal of fact – rule in Rape’s case – two limbs or tests – question 1: whether there is some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred – question 2: whether there is sufficient evidence on the basis of which the court ought to convict the accused – defence based submission on second limb – elements of the offence of misappropriation – application of test in Rape’s case – ruling – evidence is so weak and unreliable that no reasonable tribunal of fact could base conviction on it – acquittal.

Cases cited

Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212

The State v Atau Gore (No 1) (2004) N2639

The State v Eddie Sam (2004) N2521

The State v Henry Osare Kales (2001) N2115

The State v Kwale Dire (2001) N2178

The State v Michael Herman and Albert Paul (2003) N2475

The State v Nerius Patrick (2004) N2611

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Robert Tamtu (2001) N2166

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

The State v Tauvaru Avaka (2000) N2024

The State v Thomas Sanage and Others (2005) N2805

The State v Tolly Amindi (2004) N2683

The State v Tom Kakawi and Others (2002) N2229

L Rangan for the State

L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a ruling on a no case submission by a man who is facing an indictment that he dishonestly misappropriated K31,500.00, the property of a company.

BACKGROUND

Incident

The transaction giving rise to the charge occurred in Buka and involved an allegedly false invoice.

Indictment

On 18 March 2005 he was brought before the National Court and faced the following indictment:

Nathan Kovoho of Gagan village, Buka Island, Papua New Guinea, stands charged that he … between May 1997 and June 1998 at Buka town … dishonestly applied to his own use K31,500.00 in cash belonging to Arowe Holdings Ltd.

The indictment was presented under Section 383A(1)(a) of the Criminal Code.

ALLEGATIONS

The following allegations were put to the accused for the purpose of obtaining a plea.

In 1997 the accused was running various businesses in Buka. He contacted a company based in Kimbe, Arowe Holdings Ltd, and entered into an agreement to be its agent in Buka. The company operated a boat, the MV Pelpel, which was being used to transport supplies between Lae and Buka. The work was done for the Bougainville Administration. The MV Pelpel needed some work done on it. He was required to transfer money from services rendered by the MV Pelpel to a bank account in Kimbe. The accused transferred some of the money. Then a problem arose. In January 1997 the company terminated the agreement between it and the accused. However the accused was still obliged to transfer the balance of the money owing to the Kimbe bank account. Instead of transferring the money as required, he raised an invoice for K31,500.00 in the name of one of his businesses, Buka Newsagency, and presented it to the Bougainville Administration. The Administration paid the money to the accused’s business, Buka Newsagency. Then he applied it to his own use. The money, in fact, was meant for and belonged to Arowe Holdings Ltd. At all times the accused acted with a dishonest intention.

He pleaded not guilty.

PROCEDURE

The prosecution then presented its evidence. This consisted of 16 documents, including the record of interview of the accused, all tendered by consent. No oral evidence was called.

Mr Siminji then made a no case submission, based on the principles set out in the leading case, The State v Paul Kundi Rape [1976] PNGLR 96. Mr Rangan responded.

APPROACH TO THE NO CASE SUBMISSION

I will start by setting out the principles in Rape’s case, which consist of two limbs or tests. They each require the court to consider the state of the evidence so far presented and to compare it with the elements of the offence with which the accused is charged. I will summarise the evidence the prosecution has presented. I will set out the elements of the offence of misappropriation that must be proven. Then I will summarise the actual no-case submission and apply the principles in Rape to this case.

THE PRINCIPLES IN RAPE’S CASE

In Rape’s case O’Leary AJ pointed out that when the prosecution has closed its case two distinct and separate questions can arise.

Question 1 – also called the first limb or test – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred?

Note that the question is not: is every element of the offence established beyond a reasonable doubt? That question can only be answered at the end of the trial – if it proceeds – on the whole of the evidence, ie including any evidence adduced by the accused.

If the answer to question 1 is no: the conclusion will be that on the evidence as it stands the accused could not lawfully be convicted. This is an issue of law. The accused will have no case to answer. The accused will not be required to answer the charge. The accused will be entitled to an acquittal.

If the answer to question 1 is yes: the trial should proceed unless question 2 is answered in the negative.

Question 2 – also called the second limb or test – although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?

Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. It is directed at the situation where there is only a scintilla of evidence or where the evidence is so weak or unreliable that no reasonable tribunal of fact could base a conviction on it.

If the answer to question 2 is no, ie there is insufficient evidence: the trial judge has a discretion to either not call upon the accused (ie enter an acquittal) or order the trial to proceed.

If the answer to question 2 is yes: the trial must proceed.

The Supreme Court confirmed the correctness of the above principles in The State v Roka Pep (No 2) [1983] PNGLR 287, Kidu CJ, Kapi DCJ, Andrew J, Pratt J, Kaputin J; and Joshua Yaip Avini and Plaridel Nony Acosta v The State [1997] PNGLR 212, Kapi DCJ, Los J, Salika J.

Recent National Court cases in which the Rape principles have been applied include The State v Tauvaru Avaka (2000) N2024, Gavara-Nanu J; The State v Henry Osare Kales (2001) N2115, Kirriwom J; The State v Robert Tamtu (2001) N2166, Lenalia J; The State v Kwale Dire (2001) N2178, Gavara-Nanu J; The State v Tom Kakawi and Others (2002) N2229, Lenalia J; The State v Michael Herman and Albert Paul (2003) N2475, Lenalia J; The State v Eddie Sam (2004) N2521, Lenalia J; The State v Nerius Patrick (2004) N2611, Sevua J; The State v Atau Gore (No 1) (2004) N2639, Manuhu AJ; The State v Tolly Amindi (2004) N2683, Kandakasi J; and The State v Thomas Sanage and Others (2005) N2805, Cannings J.

Strictly speaking it is only the first limb of Rape’s case that gives rise to a no case submission. However, it has become the norm to refer to and rely on both limbs when a no case submission is made (see Roka Pep (No 2) per Kidu CJ).

THE EVIDENCE

Outline

The prosecution’s evidence consisted of 16 exhibits, the contents of which are described in the table below.

The exhibits

Column 1 of the table gives the exhibit number; column 2 describes each witness; and column 3 summarises their evidence.

TABLE 1 – SUMMARY OF EXHIBITS

Exhibit Witness Evidence

A Greg Aigilo Statement by Acting Secretary, Arowe Holdings Ltd (the
company) – in May 1996 the company entered into an arrangement
with Pineacre Pty Ltd, a company owned by the accused – the
company’s ship, MV Pelpel, was to be used to ship care centre
goods from Lae to Buka – Pineacre was to act as agent for the
company – main duty was to collect charter funds from National
Emergency Service and Bougainville Transitional Government –
the company terminated the arrangement in January 1997 – in May
1997 another business owned by the accused, Buka Newsagency,
which had no business dealings with the company, submitted a
claim for K31,500.00 re charter of MV Pelpel.

B Paul Statement by self-employed person – engaged by the company to
Nakmai assist in reconciliation of funds owing to the company by
Bougainville Transitional Government – visited Buka in July 1997
– confirmed from Philip Mapa that the accused had instructed Mr
Mapa to make a payment of K31,500.00 to Buka Newsagency,
instead of Pineacre Pty Ltd.

C Petrus Statement by former managing director of Menvuvu Pty Ltd, a
Kaoloka major shareholder of Arowe Holdings Ltd – upon...