Tom Amaiu v The State

• Jurisdiction: Papua New Guinea
• Judge: Andrew J:
• Judgment Date: 06 November 1979
• Citation: [1979] PNGLR 576
• Court: Supreme Court
• Year: 1979
• Judgement Number: SC167

Supreme Court: Prentice CJ, Raine DCJ, Andrew J

Judgment Delivered: 6 November 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TOM AMAIU

V

THE STATE

Waigani

Prentice CJ Raine DCJ Andrew J

30 October 1979

6 November 1979

CRIMINAL LAW — Particular offences — Stealing — Stealing of cheque — Proof of ownership of property not essential — "Owner" of property in cheque — Whether property must pass before offence constituted — Distinction between larceny by trick and obtaining by false pretences — Criminal Code, s. 377 The relevant portions of s. 377 of the Criminal Code are set out at p. 580.1.

CRIMINAL LAW — Appeal against sentence — Appeal against severity — Stealing — Stealing of cheque by person in position of authority — Need for deterrent effect — Sentence of five years' imprisonment confirmed.

On appeal against conviction and sentence of five years' imprisonment with hard labour on a charge of stealing K10,120 the property of one Wagop, it appeared that the appellant, a Member of Parliament, aware that certain payments by the Government for timber royalties had become available to certain clan groups and members, gained possession of a cheque payable to Wagop, by falsely representing two persons to the bank as Wagop and his son and thus securing authorizaton of payment of the funds into his own bank account, none of the money being subsequently recovered. On the appeal against conviction it was argued that there was no evidence that any property in the cheque had ever passed to Wagop and therefore it could not be stolen from him.

Held

(1) In order to support a charge of or involving larceny it is not essential to prove the name of the owner of the property or to prove the ownership of the property.

Lodge v. Lawton, [1978] V.R. 112; and

R. v. King (1978), 19 S.A.S.R. 118, referred to.

(2) At the very least Wagop had a "special property in" the cheque within the meaning of s. 377 (7) of the Criminal Code; it was money waiting to be collected by Wagop, and under s. 382 of the Criminal Code when received by the appellant on behalf of Wagop, it was deemed to be the property of Wagop.

(3) The appellant was correctly charged with the offence of stealing (larceny) for when he was handed the cheque there was no intention that any property in it should pass to him but he was merely given possession of it to physically convey it to the "owner".

Distinction between larceny by trick and obtaining by false pretences discussed.

(4) There had been no miscarriage of justice and the conviction should be confirmed.

(5) The trial judge had not erred in principle in considering surrounding circumstances including the position of authority held by the appellant and the amount involved, in deciding upon an appropriate punishment.

(6) The sentence imposed of five years' imprisonment with hard labour was not in the circumstances manifestly excessive and should be confirmed.

Appeal

This was an appeal against conviction and severity of sentence of five years' imprisonment with hard labour imposed on the appellant for the offence of stealing K10,120.

Counsel

J. P. Pollak, for the appellant.

B. J. Cassells, for the respondent.

Cur. adv. vult.

6 November 1979

PRENTICE CJ: An appeal has been brought against both conviction and sentence of the appellant for stealing K10,120 the property of Wagop Korowai. Leave has been granted in respect of the appeal against severity of sentence.

The sole ground ultimately relied upon as to conviction was that the cheque ("monies", under s. 1 of the Criminal Code for purposes of this prosecution) never became the property of Wagop, and therefore could not be stolen from him. The argument relies entirely upon technical submissions concerning the passing of property.

The facts as found by the trial judge remain unchallenged. The appellant was the Member of Parliament for the Kompiam electorate. He became aware that certain payments by the Government for timber royalties had become due to certain clan groups and members. He had discussions about these payments with government officials in Port Moresby. The government department arranged for cheques in payment of the royalties to be made available through a bank in Mt. Hagen.

The appellant went to the bank to gain possession of some of the monies concerned — to which apparently he had no personal entitlement. He even went to the length of bringing an elderly man and his son from a primitive village area, and by dint of speaking in place talk to these individuals secured their making a mark on a letter purporting to authorize Wagop's monies to be paid to the appellant (and thereafter allowing payment into the appellant's bank account). He in fact falsely represented the two men to the bank official as being Wagop and his son. The official was deceived by his pretences; and the cheque was handed over to the appellant as being the authorised agent of Wagop. The appellant had no such authorisation to accept the cheque or to dispose of the monies it represented to his own use in the fashion he did subsequently.

As Channell B. said in R. v. Prince (1868) 19 L.T. 364, at p. 366; (1868) L.R. 1 C.C.R. 150, at p. 154.2:

"If, however, the bank clerk makes a mistake as to the...