the State v Andrew Epei; CR NO 1007 OF 2008; The State v Francis Ipuke (No 2) (2010) N3992

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 24 March 2010
• Court: National Court
• Citation: (2010) N3992
• Docket Number: CR NO 829 OF 2008
• Year: 2010
• Judgement Number: N3992

Full Title: CR NO 829 OF 2008; the State v Andrew Epei; CR NO 1007 OF 2008; The State v Francis Ipuke (No 2) (2010) N3992

National Court: Makail, J

Judgment Delivered: 24 March 2010

N3992

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 829 OF 2008

THE STATE

v

ANDREW EPEI

AND

CR NO 1007 OF 2008

THE STATE

v

FRANCIS IPUKE

(No 2)

Mendi: Makail, J

2009: 17th, 18th & 23rd March &

2010: 22nd & 24th March

CRIMINAL LAW - Misappropriation of public monies - Multiple accused - Not guilty pleas - Trial - Criminal Code, Ch 262 - Section 383A (1)(a)&2(b)&(d).

CRIMINAL LAW - Practice & Procedure - No case submission - Misappropriation of public monies - Element of dishonesty - Proof of - Dishonesty involves state of mind of a person - Question of fact - Determined on the facts of entire case - Measured on the standard of reasonable and honest people - Criminal Code, Ch 262 - Section 383A (1)(a)&2(b)&(d).

Cases cited:

The State -v-Paul Kundi Rape [1976] PNGLR 96

The State -v- Napilye Kuri [1994] PNGLR 371; (1993) N1269

Brian Tindi Lawi -v- The State [1987] PNGLR 582

The State -v- Gabriel Ramoi [1993] PNGLR 390

The State -v- James Makario (1990) N862

Counsel:

Mr P Kaluwin, for the State

Mr P Kumo, for the Accused

RULING ON NO CASE SUBMISSION

24th March, 2010

1. MAKAIL, J: At the close of the State’s case on 22nd March 2010, in relation to a charge of misappropriation of monies belonging to Ialibu Urban Local Level Government against the two accused persons under section 383A(1)(a)&(2)(b)&(d) of the Criminal Code Ch 262, counsel for the accused made a no case submission on the basis that the State had not proven one of the elements of the charge of misappropriation based on the evidence presented thus far. The no case submission, it would seem was based on the first leg of the case of The State -v-Paul Kundi Rape [1976] PNGLR 96. That is, the evidence presented by the State thus far does not establish one of the elements of the offence of misappropriation such that the accused persons could lawfully be convicted. They ought to be discharged. The call by them requires me to re-look at the evidence presented by the State thus far and decide if there is sufficient evidence demonstrating dishonesty, but I need not be satisfied beyond reasonable doubt at this stage. The State had called 3 witnesses to testify against the accused persons. They were:

1. Luke Upa;

2. Timon Ombiolu; and

3. Lambi Kinch.

2. In addition to the evidence of these witnesses, the State, with the consent of the defence, had tendered the following documentation:

1. Record of Interview of Francis Ipuke dated 29th April 2008, (exhibit “P1”);

2. Record of Interview of Andrew Epei dated 17th January 2008; (exhibit “P2”);

3. Statement of Edward Libaba dated 12th October 2006, (exhibit ‘P3”);

4. Statement of Reynold Mairave dated 06th February 2007, (exhibit “P4”);

5. Telikom (PNG) Limited Cheque No 236121 dated 09th April 2003 for the sum of K240,000.00, (exhibit “P5”);

6. ANZ Bank Account Opening Application Form dated 13th February 2003, (exhibit “P6”);

7. ANZ Bank Deposit Slip dated 10th April 2003, (exhibit “P7”);

8. Statement of accounts of Ialibu Urban Local Level Government Internal Revenue Account dated 30th October 2006, (exhibit “P8”);

9. ANZ Bank cheque of K20,00.00 drawn to Nupan Agency Limited dated 10th April 2003, (exhibit “P9”);

10. ANZ Bank Deposit Slip dated 10th April 2003 in the sum of K20,000.00 deposited into Nupan Agency Limited, (exhibit “P10”);

11. Cheque drawn from Ialibu Urban Local Level Government Internal Revenue Account in the sum of K70,000.00 dated 14th April 2003, (exhibit “P11”);

12. Cheque of 10th March 2003 made payable to Asi Holding Limited in the sum of K20,000.00 from Ialibu Local Level Government Internal Revenue Account, (exhibit “P12”);

13. Cheque dated 10th April 2003 drawn from Ialibu Urban Local Level Government Internal Revenue Account in the sum of K10,000.00 made payable to Luke Puiye, (exhibit “P13”);

14. Cheque in the sum of K60,000.00 drawn on the Ialibu Urban Local Level Government Internal Revenue Account dated 10th April 2003 made “pay cash”, (exhibit “P14”);

15. Cheque in the sum of K1,730.00 made “pay cash” dated 01st May 2003 drawn on Ialibu Urban Local Level Government Internal Revenue Account, (exhibit “P15”);

16. Cheque dated 10th April 2003 drawn on the account of Ialibu Urban Local Level Government Internal Revenue Account in the sum of K20,000.00 made “pay cash”, (exhibit “P16”);

17. Cheque dated 30th April 2003 drawn on the account of Ialubi Urban Local Level Government Internal Revenue Account in the sum of K7,800.00 made “pay cash”, (exhibit “P17”);

18. Cheque dated 01st May 2003 in the sum of K15,000.00 drawn on Ialibu Urban Local Level Government Internal Revenue Account made “pay cash”, (exhibit ‘P18”);

19. ANZ Bank Deposit Slip dated 01st May 2003 in the sum of K15,000.00 deposited into Asi Holdings Limited, (exhibit “P19”);

20. Cheque dated 18th April 2003 drawn on the account of Ialibu Urban Local Level Government Internal Revenue Account in the sum of K2,500.00 made payable to Ela Motors Port Moresby, (exhibit “P20”);

21. Cheque dated 07th May 2003 drawn on Ialibu Urban Local Level Government Internal Revenue Account in the sum of K2,000.00 as “pay cash”, (exhibit “P21”);

22. Cheque dated 30th April 2003 drawn on Ialibu Urban Local Level Government Internal Revenue Account in the sum of K1,922.62 payable to PNG Power Limited, Ialibu, (exhibit “P22”);

23. Cheque dated 22nd March 2004 drawn on Ialibu Urban Local Level Government Internal Revenue Account in the sum of K1,300.00 made “pay cash”, (exhibit “P23”);

24. Minutes of Meeting No 1 of 2003 dated 6th February 2003 by Ialibu Urban Local Level Government, (exhibit “P24”);

25. Statement of Luke Upa dated 20th January 2008 in relation to Andrew Epei, (exhibit “P25”);

26. Statement of Luke Upa dated 02nd May 2008 in relation to Francis Ipuke, (exhibit “P26”); and

27. Statement of Lambi Kinch dated 06th October 2006 and Report by Lambi Kinch, (exhibit “P27”).

3. The allegations of fact put to the accused persons during arraignment were; between 1st March 2003 and 31st March 2004, the accused persons were employed by Ialibu Urban Local Level Government. Francis Ipuke was the District Administrator and Andrew Epei was the Deputy District Administrator. Prior to this period, there was a telecommunication tower built at Ialibu in which Telikon (PNG) Limited (“Telikom”) agreed to rent the land upon which the tower was on from Ialibu Local Level Government for K5,000.00 per month or K60,000.00 a year.

4. On 13th January 2003, an account was opened at ANZ Bank in Mt Hagen, styled “Ialibu Urban Local Level Government Internal Revenue”. The accused persons and one other by the name of John Wagl were signatories to the said account. In the month of March 2003, a cheque of K2,700.00 was paid by Telikom to Ialibu Urban Local Level Government and was debited into the said account. Another cheque of K240,000.00 also drawn on Telikom’s account was debited into the said account.

5. Between the said period, several withdrawals and transactions took place until the account was closed on 27th May 2005. The State alleged that monies withdrawn from the said account were done by the accused persons as co signatories and put to their own use or to the use of other persons. The State further alleged that the establishment of the said account was done without lawful authority or in accordance with the provisions of the Public Finance (Management) Act, 1995, hence, void abinitio.

6. Section 383A of the Criminal Code, Ch 262 provides as follows:

“383A. Misappropriation of property.

(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.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:-

(a) …………..;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) …………..;

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3) For the purposes of this section -

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) …………; and

(c) ………..; and

(d) ………...” (Underlining mine).

7. The law is well settled in this jurisdiction as to what the constituent elements of this offence are from a line of decided cases over the years. These are restated hereunder as follows:

(a) dishonesty;

(b) application to own use or use of another; and

(c) property must belong to another.

8. Except in a no case submission, the prosecution must prove these elements beyond reasonable doubt in order to find the accused guilty. The cases of Brian Tindi Lawi -v- The State [1987] PNGLR 582, The State -v- Gabriel Ramoi [1993] PNGLR 390, and The...