The State v Nathan Kovoho (2005) N2810

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

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

National Court: Cannings J

Judgment Delivered: 22 March 2005

1 Criminal Law—indictable offences—Criminal Code, Subdivision VI.1.C, offences analogous to stealing—s383A, 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case consisted of 16 exhibits, tendered by consent—submission of no case to answer—application that case should be withdrawn from the tribunal of fact—rule in The State v Paul Kundi Rape [1976] PNGLR 96—two limbs or tests—question 1: whether there is some evidence of each element of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 The State v Paul Kundi Rape [1976] PNGLR 96—ruling—evidence is so weak and unreliable that no reasonable tribunal of fact could base conviction on it—acquittal.

2 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 [2002] PNGLR 656, 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 [2002] PNGLR 378

Ruling on no case submission

___________________________

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 s383A(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 The State v Paul Kundi Rape [1976] PNGLR 96, 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 The State v...