The State v Tracey Tiran

• Jurisdiction: Papua New Guinea
• Judge: Miviri AJ
• Judgment Date: 26 June 2018
• Citation: (2018) N7336
• Court: National Court
• Year: 2018
• Judgement Number: N7336

Full : CR (FC) 251 of 2017; The State v Tracey Tiran (2018) N7336

National Court: Miviri AJ

Judgment Delivered: 26 June 2018

N7336

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 251 of 2017

THE STATE

V

TRACEY TIRAN

Waigani: Miviri AJ

2018 : 26th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Conspiracy to defraud- Misappropriation – application admitted – dishonesty denied – no coconut plant up running – State discharged proof – dishonest application – guilty of misappropriation - s383A CCA.

Fact

Accused dishonestly applied to her own use K 500, 000.00 the property of the State of Papua New Guinea

Held

Application of K 500, 000.00 undisputed.

Dishonesty established

No entitlment to money.

Corruptly paid K150, 000.00 to another for use of money

Expended on personal expenses not related to Project

Guilty of Misappropriation.

Cases Cited:

The State v Lawi [1987] PNGLR 183.

State v Francis Natuwohala Laumadava [1994] PNGLR 291

The State v Wani [1979] PNGLR 593

The State v Kandakason [1998] PGSC 20; SC558

The State v Rokpa [1994] PNGLR 535;

The State v Liriope [1990] PGNC 58; N916

Counsel:

Mr.T. McPhee, for the State

Mr. D. Wapu, for the Defendant

VERDICT

05th July, 2018

1. MIVIRI AJ: This is the verdict of a woman who dishonestly applied to her own use K500, 000.00 the property of the Independent State of Papua New Guinea.

Short facts

2. Accused conspired with two others between the 1st day of June 2010 and the 25th day of October 2011, representing to the State through the office of the Minister for National Planning and Monitoring Department honourable Paul Tientsin MP then that a Coconut project would be set up on Manus. Pursuant to that, K500, 000.00 was paid by cheque to the accused’s company Sits Up Services Limited who deposited the money into that account and used the money between the 1st day of March 2011 and 25th October 2011 personally and to the use of others. The subject coconut project was not set up.

Charge

3. The charge is pursuant to section 383A misappropriation of the Criminal Code which reads; “(1) A person who dishonestly applies to his own use or to the use of another person –

(a) Property belonging to another; or

(b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years-

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust. Direction or condition;

(d) where the property dishonestly applied is of a value of K2000 or upwards.

(3) For the purposes of this section-

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property;

(b) a persons application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;

(d) persons to whom property belongs to include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who. Immediately before the offender’s application of the property, had control of it. “

The State Prosecutor has conceded that there is no basis to pursue the charges of conspiracy to defraud counts one on the indictment. Accordingly the appropriate verdict given is not guilty against the accused that she conspired with Peter Pomak and Enoch Sihil to defraud the State of K500, 000.00 the property of the State of Papua New Guinea. Leaving now the charge pending of misappropriation.

Elements

4. The elements of section 383A Misappropriation are; - (a) there was dishonesty; (b) there was application of the said property to her own use or that of another; and (c) it was property belonging to another, Lawi v The State [1987] PNGLR 183. Dishonesty is a question of fact and would depend on the status of mind of the accused. “And when a Judge considers the facts on how the property was applied, he uses the ‘ordinary’ standards of reasonable and honest people’ test to determine whether or not the property so applied…Dishonest is defined in the Oxford Advanced Learners Dictionary of Current English as, “intended to cheat, deceive or mislead, The State v Francis Natuwohala Laumadava [1994] PNGLR 291 at 293.” And is that the case of the accused here did she intend to cheat or deceive or mislead here? To so answer the following are considered.

Undisputed Facts

5. It is settled that K 500, 000. 00 is State Money and not the property in law of the accused. That it was paid into Sits Up Services Limited her Company and she was using that money. In fact she used up to K 365, 628.70 break up in accordance with the spending she admits to in the record of interview dated the 30th August 2012. And a further sum of K 137, 683.11 is expenses that accused cannot recall. This is “Funding Assistance for Integrated Coconut processing project” money that was spent that she cannot recall what they were spent on. Together this would come to a total of K503, 311.81 just slightly over by K 3311. 81 toea. In fact the entire use of the K500, 000.00 the subject of the charge. Is the entire use here dishonestly applied or only part, and if so how much?

6. Counsels on either side are in agreement that accused dishonestly applied to her use or to that of others portion of that K500, 000.00. State counsel argues further that K150, 000.00 was paid to PNG Motors nominee of Chris Hulape for the use of the money including K50, 000.00 to National Alliance Party of the Minister who authorized the payment of the money. It was the payment for the money. Defence counsel is in agreement and argues that Accused spent what was remaining of K350, 000. 00 honestly and therefore is not guilty outright of the whole sum of K 500, 000.00. Accused conceded in cross examination by state counsel that what was in place was a sham with Chris Hulape and Paul Tiensten, parties to an offence: Wani v The State [1979] PNGLR 593.

7. Defence counsel has argued that the corruption started in the Department of National Planning where the acting secretary together with her subordinates failed to carry out their lawful duties but heeded to Tiensten’s foot note to fund. That the accused is not liable she was genuinely applying for project funding. That it was Chris Hulape and Paul Tiensten who brought her into the bad scenario.

8. Accused is the director of the company Sits Up Services Limited and the project proposal is not made by Sits Up Services Limited, but by Peter Pomak Managing Director of Ndeundeu Incorporated Land Group of the Sapulau Coconut and Cocoa Plantation P. O. Box 63, Lorengau, Manus Province. It is a Project proposal by Sapulau Integrated Coconut processing. The project proposal is agriculture based copra is. The project is to turn raw coconut into a commercial and marketable product that will bring income and generate a livelihood for the people of Manus and Sapulau. It means that there will be a processing plant set up to do this. That at the end of the project what will remain is a coconut processing plant shown out by the flow chart from raw material to a commercial marketable economic product to sustain the people there, State Exhibit A pages 10- 37.

9. That the money was for that project submission because it is approved by the minister by a footnote on it dated the 20th December 2010 for release of funding for proposal and not a feasibility Study. That is clear by the funding sought of K1.5 million in the letter attached dated 3rd June 2010 under hand of Peter Pomak on page 10 of Exhibit A. It follows that the acquittal must be on that project proposal and not a feasibility study because the money is not given for feasibility study and has never being from this evidence. It follows that defence exhibit 1 is not the basis upon which funding was approved and therefore is insignificant in the case against the accused. It does not add to her case. What are significant here are that the project funds remains to be acquitted in accordance with the Public Finance Management Act to satisfy that it has been properly spent...