The State v Enos Steven Ulaias (2006) N3033

• Jurisdiction: Papua New Guinea
• Date: 13 February 2006
• Citation: (2006) N3033
• Docket Number: CR 846 of 2004
• Court: National Court
• Year: 2006

Full Title: CR 846 of 2004; The State v Enos Steven Ulaias (2006) N3033

National Court: Kirriwom J

Judgment Delivered: 13 February 2006

1 CRIMINAL LAW – Misappropriation – Accused dealing with property dishonestly – What amounts to misappropriation – Proof essential ingredients of the offence – Criminal Code, s383A(1)

2 Practice and Procedure – Submission of No-Case-to-Answer – lack of evidence establishing essential ingredients of the offence – Evidence tendered inconsistent, incredible and unsafe to return verdict of guilt even without the accused giving evidence – Acquittal of the accused ordered.

3 Roka Pep v The State (No 2) [1983] PNGLR 287, Paul Kundi Rape v The State [1976] PNGLR 96 referred to

Ruling on No-Case to Answer

_______________________________

Kirriwom J:

1. At the close of the State case where the Accused Enos Steven Ulaias is appearing before the court charged with three counts of misappropriation under s383 of the Criminal Code, Mr Daniel, counsel for the Accused made a no-case-to-answer submission relying on the Supreme Court case of Roka Pep v The Sate (No 2) [1983] PNGLR 287. The Supreme Court in Roka Pep reiterated the principles that were earlier discussed and enunciated in Paul Kundi Rape v The State [1976] PNGLR 96 which have laid the basis for the defence applying to the court after prosecution has closed its case seeking acquittal of the accused person on a criminal trial on two basic grounds: (1) as at the end of the prosecution case there is no evidence at all adduced to proved one or more elements of the charge against the accused or (2) the evidence before the court was so unreliable, unsatisfactory and unsafe for a conviction to be founded on it.

2. S383A(1) provides:

"(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."

3. The elements of the charge requiring proof by the prosecution by virtue of this provision of the Code are:

a. A person

b. Dishonestly applied

c. To his own use or to the use of another

d. Property

e. Belonging to another; or

f. Belonging to him but subject to trust etc.

4. The Accused is indicted of the following three counts:

a. count one:

Between 19 February 2002 and 23 December, 2003 at lae he dishonestly applied to his own use Fourteen thousand six hundred and twenty five kine and fifty six toea (K14,625.56) property belonging to Internal Revenue Commission.

b. count two:

Between 27 November 2003 and 1 December 2003 at Lae he dishonestly applied to his own use Fourty Five Thousand Kina (K45,000) property belonging to Internal Revenue Commission.

c. count three:

Between 31 December 2003 and 27 February 2004 at Lae he dishonestly applied to his own use K8,971.08 property belonging to Internal Revenue Commission.

5. The prosecution presented the following statement of facts for purpose of arraignment of the accused:

The accused was employed by the Internal Revenue Commission Customs Office here in Lae as Budget and Administration Officer between 2002 and 2004. During the period of his employment he misappropriated monies belonging to IRC for the operations of Customs Office here in Lae and the region.

In respect of Count 1 the accused took the sum of K14,625.56 from the IRC account at Morobe Provincial Treasury for purpose of paying unauthorized claims for salaries and wages for non-existent persons or ghost names and also for student trainees working with IRC at the time who were not entitled to such payments.

In respect of Count 2, the accused took K45,000 from the same account through the Provincial Treasury Office in Lae. Accused obtained quotations and invoices from a company in Lae called East West (1) Ltd for purposes of purchasing parts for IRC vehicles and for repair works on the said vehicles. He then raised requisitions attaching the invoices which he forwarded to Treasury Office...