CR No. 995 OF 2008; The State v Paul Asakusa (No.1) (2010) N4056

• Jurisdiction: Papua New Guinea
• Judge: Kawi, J
• Judgment Date: 28 July 2010
• Court: National Court
• Docket Number: CR No. 995 OF 2008
• Citation: (2010) N4056
• Year: 2010
• Judgement Number: N4056

Full Title: CR No. 995 OF 2008; The State v Paul Asakusa (No 1) (2010) N4056

National Court: Kawi, J

Judgment Delivered: 28 July 2010

N4056

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 995 OF 2008

THE STATE

V

PAUL ASAKUSA (NO.1)

Waigani: Kawi, J

2010: 2nd, 3rd, 4th & 28th July

CRIMINAL LAW - Conspiracy to Defraud - Agreement to do unlawful act -Conspiracy to defraud- offence completed when agreement made - agreement expressed or implied - acts and omissions of parties - conduct of accused suggest agreement to defraud- accused gave directions to refund government cheque - cheque refunded and proceeds paid to an individual who has no legitimate entitlement to proceeds - deposit of cheque to an individual account- monies withdrawn from individual account and used for own private purposes- funds from government appropriated under the District Support Improvement Program- Government funds - Funds dishonestly used and applied for use of an individual- Refunding a government cheque to an individual for his own use is downright stealing and amounts to a dishonest application of State Funds-State has legal and equitable interests in the funds - state funds – misappropriation - state evidence cannot be described as hopeless or unreliable and therefore cannot be intrinsically weak- Accused has a case to answer on both counts.

Cases cited:

Papua New Guinea Cases

Paul Kundi Rape [1976] PNGLR 96

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

State v Tanedo [1975] PNGLR 395

Brian Kindi Lawi v The State [1987] PNGLR 582.

The State v Gabriel Ramoi [1993] K PNGLR 390.

State v Ipai Koivi, Unreported and Unnumbered judgement of Kawi J dated 16th April 2010.

The State v Sebulon Watt and Miskus Maraleu [1994] PNGLR 582

Paulus Pawa v The State [1981] PNGLR 498

The State-v-James Makario (1990) Unreported N862,

The State-v- Tom Morris [1980] PNGLR 493

The State v. Devlin David [2006] SC 881

State –v- Kuri [1994] PNGLR 371

SCR No 1of 1998 Reservation Pursuant to section 15 of the Supreme Court Act SC 672

Overseas Cases

R v Jones (1832) 110 ER 485

Churchill v Walton [1967] 2 AC 224

R v Griffiths [1967] 2 All ER 448; [1966] 1 QB 598.

References Cited:

Macquarie Dictionary 1997 Third Edition @ 569

The Osborn’s Concise Law Dictionary (6th ed)

Halsbury’s Laws of England (4th ed) Vol 11 (1) 1990

Oxford Dictionary of Law (1977)

Carter RF, Criminal Law of Queensland, 3rd ed; (1969), Butterworths,

Counsel:

Mr. K Pondros, for the State

Mr. C. Nidue, for the Accused

5th July, 2010

RULING ON NO CASE TO ANSWER SUBMISSION

1. KAWI, J: The accused Paul Asakusa pleaded not guilty on arraignment to one count of conspiracy to defraud the State contrary to section 517 and another count of misappropriation contrary to section 383A (1(a)(b) & (d) of the Criminal Code.

2. At the close of the State’s case, the accused through his counsel opted to make a no case to answer submission mounted on both limbs of the test in the State-v-Paul Kundi Rape [1976] PNGLR 96 case. Hence this Ruling on the no case to answer submission.

THE STATE’S ALLEGATIONS

3. The accused Paul Asakusa faces two charges brought pursuant to Section 517 of the Criminal Code and Section 383A(1)(a)(b) & (d).

4. The charge under Section 517 alleges that the accused conspired with one Aloysius Kingsley to defraud the State. In the second charge under Section 383A(1)(a)(b) & (d) he is alleged to have misappropriated K50,000.00, moneys belonging to the State.

STATE ALLEGATIONS – COUNT 1

5. The State alleges that the accused was the Managing Director of the National Housing Corporation (NHC) at the relevant time. In the course of his employment, the accused received a letter dated 25th September 2007 from one Alois Kingsley. Enclosed in the letter was a cheque in the sum of K50,000.00 and made payable to the NHC. It was a Bank of Papua New Guinea cheque raised by the Department of Finance and Treasury.

6. The original purpose of the cheque was for the purchase of a house in Madang to accommodate a School Inspector. The State alleges that when the letter and the cheque were received, the accused conspired with Alois Kingsley. The State alleges that as a result of this conspiracy with Alois Kingsley the K50,000.00 cheque was deposited into the NHC bank account at Bank South Pacific (BSP) and later another BSP bank cheque in the sum of K50,000.00 cheque was drawn from the NHC bank account and made payable to Alois Kingsley. This cheque was later deposited into Alois Kingsley’s private bank account and used for his own purposes.

7. This conspiracy, including the transactions and the deposit of the said cheque into the said bank accounts, occurred between the 25th September 2007 up to and including the 29th October 2007. The State alleges that the accused knew that what he was doing is contrary to law.

STATE ALLEGATIONS – COUNT 2

8. The State further alleges that from the time the cheque was deposited on the 29th October 2007 until the 19th November 2007, the proceeds of the K50,000.00 cheque were withdrawn from Alois Kingsley’s private bank account. The State says that as a result of the accused’s fraudulent activity, the sum of K50,000.00 was misappropriated for Alois Kingsley’s own use.

9. In his opening address, the State Prosecutor asked the court to infer conspiracy from the letter dated 25th September 2007 from Alois Kingsley to the accused, who was then the Managing Director of the National Housing Corporation (NHC) together with the notations of the accused on the said letter and the other letter dated 26th September 2007, and his instructions to his sub-ordinate staff. In relation to count 2 the State prosecutor in his opening address stated that when Alois Kingsley deposited the K50,000.00 cheque into his personal bank account, and withdrew the monies, he is said to have misappropriated monies belonging to the State.

THE STATE EVIDENCE

10. To sustain its allegations the state called four witnesses. These witnesses are:

a) Mrs. Ovoa Rova;

b) Mr. Keilani Toea

c) Mr. Benjamin Goimba

d) Detective Senior Constable Nick Tangale.

11. The first State witness was one Mrs Ovoa Rova who is currently employed as a Financial Accountant with the NHC. Currently she is the Acting General Manageress, Finance and IT with the NHC. She gave evidence of receiving a letter from Alois Kingsley in September 2007. The letter was dated 25th September 2007 and was passed to her from the Managing Director’s Office. The letter was addressed to the accused who at that time was the Managing Director of the NHC. Attached to the letter was a government cheque in the sum of K50,000.00. The letter reads:

“Dear Sir

EXPRESSION OF INTEREST TO PURCHASE NHC PROPERTY IN

MADANG.

I would like to seek your approval for the above as my previous offer of K50,000.00 for Section 36, Allotment 75 in Madang is now allocated to another party.

The BPNG Cheque No. 858934 dated 21 March 2007 made payable to the NHC is still current and I remain committed to make another offer for any property within Madang.

Any property for the same value would be ideal for my interests.

Your Sincerely,

Mr Aloysius G. Kingsley

Applicant”

12. Using his position as Managing Director the accused then directed Mrs Ovoa Rova to receipt and refund this cheque.

13. Mrs Ovoa in turn wrote a memo to the accused as the Managing Director, advising him against refunding the cheque to Alois Kingsley. Despite this advice the accused insisted on the cheque being receipted, deposited into the NHC bank account and then have the proceeds refunded to Alois Kingsley.

14. Alois Kingsley then wrote another letter to the accused dated 26th September 2007. That letter states:

“Dear Sir

RE: WITHDRAWAL OF DEPOSIT ON PROPERTY IN MADANG.

I would like to seek your approval for the return of the K50,000.00 deposit made against the property as the property was already sold to another person. I would like to purchase another property in Madang. Your utmost approval is sought.

Yours Sincerely

__________________

Aloysius Kingsley

Applicant”

15. Upon receiving this letter, the accused again directed Mrs Ovoa Rova as the Acting General Manager, Finance to verify the cheque with the Central Bank, have it deposited into the NHC Bank Account and then refund it to Alois Kingsley.

16. The cheque was then deposited into the NHC account. Immediately after the deposit, another Bank South Pacific Cheque No. 1000 012066 was drawn from the NHC Bank Account in the amount of K50,000.00 and was drawn and made payable to Alois Kingsley. This cheque is dated 26th October 2007.

17. During cross-examination Mrs Ovoa Rova maintained that the instructions from the accused as Managing Director were improper because there was not enough documentation such as a Contract of Sale or a Transfer Instrument, to verify the cheque payment. Neither were there any other supporting documents from the Department of Finance and Treasury.

STATE WITNESS #2 – MR KEILANI TOEA

18. The second State witness was Mr Keilani Toea. At the relevant period in 2007 he occupied the position of General Manager, Properties. The thrust of his evidence is that:

(a) As a result of the directions from the accused as the Managing Director of the NHC, the K50,000.00...