The State v James Makario (1990) N862

• Jurisdiction: Papua New Guinea
• Citation: (1990) N862
• Date: 24 May 1990
• Court: National Court
• Year: 1990

Full Title: The State v James Makario (1990) N862

National Court: Jalina AJ

Judgment Delivered: 24 May 1990

1 CRIMINAL LAW—Misappropriation—Application of monies for the use of another—Monies applied for purpose allocated—No evidence that it was not so applied—Strict proof required of such application.

On a charge that the accused dishonestly applied to the use of another person property belonging to another, and for false pretences.

Held:

(1) As the application of property of another to the use of another person is an essential element of an offence under s383A(1)(a) of the Criminal Code, in addition to the element of dishonesty, it must be strictly proved that the property was used or applied for the use of no other person than the person specified in the indictment.

(2) In the absence of evidence showing that no other person than the person specified the indictment used the money, an accused person is entitled to be acquitted.

(3) The accused is accordingly found not guilty on the first count.

(4) At the time he introduced the Chairman and Committee members specified in the indictment and opened an account in the name of Koruava Community School (Panialavava) he knew that there was no Community School at Panialavava and that the persons he introduced were not duly elected members of the Board of Management.

(5) The accused is accordingly found guilty on the second count.

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Jalina AJ: The accused has been charged with the following counts:

1st Count

That he between 17 April 1985 and 5 September 1985 at Port Moresby in Papua New Guinea, dishonestly applied to the use of another, Makario Kaita Kau, Four Thousand Kina (K4,000.00), the property of the Central Provincial Government.

2nd Count

That he on 17 January 1987 at Port Moresby in Papua New Guinea by falsely pretending to one, ROGER GALT of ANZ Banking Group (PNG) Limited that one Makario Kaita Kau was the Chairman of Koruava Community School and Kuvari Kuve, Hauhum Moimo and Larrina Mana were Committee Members of the Board of Management of the said school induced ROGER GALT to deliver to JAMES MAKARIO, the said Chairman and the said Committee Members of the said Community School the sum of Three Thousand and Eight Kina (K3,008.00) with intent to defraud.

3rd Count

That he between 20 January 1987 and 16 February 1987 at Port Moresby in Papua New Guinea, dishonestly applied to the use of another Makario Kaita Kau, Two Thousand Five Hundred and Eight Kina (K2,508.00), the property of the Central Provincial...