The State v Graham Yotchi Wyborn (2004) N2847

• Jurisdiction: Papua New Guinea
• Citation: (2005) N2847
• Date: 20 July 2005
• Docket Number: CR 1235 of 2002
• Court: National Court
• Year: 2005

Full Title: CR 1235 of 2002; The State v Graham Yotchi Wyborn (2004) N2847

National Court: Salika J

Judgment Delivered: 20 July, 2005

1 Criminal Law—Accused director of a company—accused charged with criminal offence as director of company—whether defence of corporate veil available—corporate veil lifted.

2 Salomon v Salomon & Co [1897] AC 22, Foss v Harbottle (1843) 2 Hare 461, Ch 12 LJ 319, CBS Inc v Ranu Investments Pty Ltd [1978] PNGLR 66, Jacob Luke v John Ralda [1992] PNGLR 549, Odata Ltd v Ambusa Copra Oil Mill Ltd (2001) N2106, Ome Ome Forests Ltd v Ray Cheong (2002) N2289, Kappo No 5 Pty Ltd v Wong [1998] PNGLR 544, The State v Yaip Avini (1996) (Unreported and unnumbered National Court judgment of Jalina J dated 12 November 1996) referred to

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Salika J:

The accused Graham Yotchi Wyborn has been charged with four counts of misappropriation pursuant to s383A of the Criminal Code (Ch262).

For completeness the charges are:

First Count:

Graham Yotchi Wyborn of Daru Island, Western Province stands charged that he between 24 day of December, 1999 and 31 day of March 2000 at Daru in Papua New Guinea dishonestly applied to his own use and to the use of Lisa Wyborn and Sikani Engineering Limited monies in the sum of Fifty Eight Thousand Two hundred and Seven Kina and Eighty Six Toea (K58,207.86) the property of the Independent State of Papua New Guinea.

Second Count

Graham Yotchi Wyborn of Daru Island, Western province stands charged that he on the 13th day of March 2000 at Daru in Papua New Guinea dishonestly applied to the use of Elaine Marina and Norman Andrew Benson money in the sum of K1,149.43 the property of the Independent State of Papua New Guinea.

Third Count.

Graham Yotchy Wyborn of Daru Island, Western Province stands charged that he on the 24th day of December 1999 at Daru in Papua New Guinea dishonestly applied to the use of Kevin Wyborn monies in the sum of K5,000 the property of the Independent State of Papua New Guinea.

Fourth Count

Graham Yotchi Wyborn of Daru Island Western Province stands charged that he on the 17th day of January 2000 at Daru Papua New Guinea dishonestly applied to his own use and to the use of others money the sum of K1,000 the property of the Independent State of Papua New Guinea.

THE ALLEGATIONS

The State alleged that a verbal contract was entered into between the Daru Town Authority and Sikani Engineering Limiter (hereinafter referred to as Sikani) some time in 1999. This was after the project for the building of the Daru Town market had been advertised for public tender Sikani won the tender ahead of four other bidders. The total contractual sum for the project was K180,000.00 On 24 December 1999 the Mayor of Daru Town Mr Lawrence Tom on behalf of the Daru Town Authority presented a K100,000 cheque number 4230 to Kevin Wyborn on behalf of Sikani as an advance and part payment to start the construction of the Daru Town Market. The agreement to start the work with K100,000.00 was verbal. It was also part of the market agreement that the balance of K80,000.00 would be paid later. As to when that was to be paid is not ascertained.

The State alleged that the K100,000 was deposited into the Sikani account number 294 6616893 which was held at the then Papua New Guinea Banking Corporation in Daru (now Bank South Pacific). The State further alleged that cash withdrawals were made thereafter to the tune of K82,535.00 from the Sikani account. Some of the money was used to purchase materials in Port Moresby and freighted to Daru.

The State alleged that a total of K65,357.29 of the K100,000.00 was misappropriated by the accused. The K65,357.29 is the total aggregate from the four counts of misappropriation.

The State alleged in the first count that the accused dishonestly applied to his own use and to the use of Lisa Wyborn and Sikani K58,207.86 in that various cash amounts totaling K58,207.86 were withdrawn from the K100,000.00, deposited into the Sikani account, were for purposes other than the construction of the Daru Town Market.

In relation to the second count the State alleged that the payment of K1,149.43 to Elaine and Norman Andrew Benson from the K100,000.00 deposited into the account of Sikani, were for purposes other than for the construction of the Daru Town Market.

In relation to the third count the State alleged that the payment of K5,000 to Kevin Wyborn drawn from the K100,000 deposited it into the Sikani account was a payment for purposes other than for the construction of the Daru Town Market.

In relation to the fourth count the State alleged that K1000.00 was drawn out from the K100,000.00 deposited into the Sikani Account to purchase a fridge which is outside of the purpose for which the K100,000 was given.

THE EVIDENCE

The State with the consent of the Defence tendered the following documents into evidence

(1) Statement of Gabia Gagarimabu

(2) Statement of Sebastian Bagrie

(3) Statement of Lawrence Tom

(4) Statement of Mabata Gabutu

(5) Statement of Ian Ta'bara

(6) Statement of Daryl Haste

(7) Statement of Kabai Kousa

(8) Record of Interview

(9) Cheque remittance Advise which is page No 58 in the District Court depositions.

(10) Internal General expense form which is page 59 in the deposition

(11) Requisition for Expenditure which is page 60 of the deposition.

(12) Receipt of Bank Deposit slip which is page 74 of the deposition

(13) Deposit slip dated 24 December 1999 which is page 75 of the deposition.

(14) PNGBC Customer account Record which are pages 76 and 77 in the deposition.

(15) Bank Statement of Sikani Account No 294–006616893 which are pages 78 to 81 of the District Court deposition.

(16) Invoice number T9918 dated 25 January 2000 which are pages 86 to 99 of the depositions.

(17) 28 cheques which witness Mabata Gabutu deposed to in her affidavit which are pages 82—85 and pages 100 , 124 and 131 in the District Court depositions.

(18) Documents relating to transactions between Yatala Limited and Sikani.

The documentary evidence was tendered into evidence during different stages of the trial in that some were tendered earlier than others.

The State then called Jacob Tabua into evidence. His evidence was that he is the Managing Director of a company Westsun Construction Limited. Mr Tabua said on the 4 February 2000 Mr Graham Wyborn went to his house or place and they discussed a few things about the market . He said Mr Wyborn wanted to sub—contract his company to build the market. He then made a verbal agreement with him to sub—contract and told him he was interested. He said they then discussed the physical planning side of the building and how he would be paid. He said his company was involved in the building and construction industry.

On the same day 4 February 2000 he wrote out an invoice on behalf...