The State v Felix Luke Simon (2020) N8183

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Berrigan J
• Judgment Date: 07 February 2020
• Citation: (2020) N8183
• Judgment Number: N8183
• Year: 2020
• Docket Number: CR (FC) No 104 of 2019

Full Title: CR (FC) No 104 of 2019; The State v Felix Luke Simon (2020) N8183

National Court: Berrigan J

Judgment Delivered: 7 February 2020

N8183

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 104 of 2019

THE STATE

V

FELIX LUKE SIMON

Waigani: Berrigan J

2019: 18th, 19th, 20th, 23rd and 24th September, 10th October

2020: 7th February

CRIMINAL LAW–PRACTICE AND PROCEDURE - Self-represented accused – S. 383A of the Criminal Code - Misappropriation –Elements of offence – Ss. 1, 530(6) and (7) of the Criminal Code – Averment of “money” includes cheques - Claim of right –Belief in legal and not merely moral entitlement required- Unsworn statement – Consideration and weight.

Cases Cited:

Papua New Guinea Cases Cited

Brian Kindi Lawi v The State [1987] PNGLR 183

Francis Potape v The State (2015) SC1613

Havila Kavo v The State (2015) SC1450

Ikalom & Anor v The State (2019) SC1888

James Singo v The State (2002) SC700

Jimmy Ono v The State (2002) SC698

John Jaminan v The State (No 2) [1983] PNGLR 318

Magr v The Queen [1969-70] PNGLR 165

Maladina v The State (2016) SC1495

Paulus Pawa v. The State [1981] PNGLR 498

R v Hobart Magalu [1974] PNGLR 188

R v Ulel [1973] PNGLR 254

Sebulon Wat v Peter Kari [1975] PNGLR 325

State v Roka Pep [1983] PNGLR 287

Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231

The State v Andrew Ludwig Posai (2004) N2618

The State v Bruno Tanfa Chilong (2009) N3578

The State v Douba (2018) N7627

The State v Emma Ombu Karakabo (2012) N4897

The State v Francis Natuwohala Laumadava [1994] PNGLR 291

The State v Francis Potape (2014) N5773

The State v Gabriel Ramoi [1993] PNGLR 390

The State v Graham Yotchi Wyborn (2005) N2847

The State v Henry Gorea [1996] PNGLR 141

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Titeva Fineko [1978] PNGLR 262

The State v Topoma [1980] PNGLR 18

The State v. Tom Morris [1981] PNGLR 493

Overseas Cases Cited:

Barca v. The Queen (1975) 50 ALJR 108

Harris v Harrison (1963) Crim LR 497

MacLeod v R (2003) 214 CLR 230

MacPherson v The Queen (1981) 147 CLR 512

Peacock v. The King (1911) 13 CLR 619

Plomp v. The Queen (1963) CLR 234

R v Bernhard [1938] 2 KB 264

R v Dossi (1918) 13 Cr App R 158

R v Easton [1994] 1 Qd R 531

R v Pollard [1962] QWN 13

Thomas v. The Queen (1960) 102 CLR 584

WGC v R (2007) 233 CLR 66

Legislation and other materials cited:

Sections23,383A, 534,527and530of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms T. Aihi and Mr B. Sabarei, for the State

Accused in person

DECISION ON VERDICT

07thFebruary, 2020

1. BY THE COURT: The State presented an indictment charging the accused that he:

“between the 6th day of July 2017 and the 3rd day of January 2018 dishonestly applied to his own use and the use of others monies in the sum of K62,600, belonging to Joshua Ipi and subject to a trust and direction of Joshua Ipi”, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code (Ch. 262) (the Criminal Code)

2. The State alleged that the accused was a Port Moresby based employee of 210 Real Estate, which was owned by the complainant, Joshua Ipi. The complainant is based in Lae, Morobe Province and owns rental property located at Turua Avenue and Lokua Avenue in Port Moresby. The accused was the caretaker of the property located at Lokua Avenue occupied by corporate tenants, including Lamana Hotel Ltd, Department of Health and Mirupasi Lawyers. The complainant directed the accused to collect rentals paid by cheque from tenants and deposit the cheques into the complainant’s personal bank account.

3. The State further alleged that the accused without the knowledge and authority of the complainant opened a Bank South Pacific (BSP) account, No. 7010657588 in the name of Joshua Ipi, into which he, the accused deposited K62,600 in rentals paid by cheque, and made subsequent cash withdrawals.

4. The accused chose to represent himself. He was reminded of his option to secure private counsel or have the Public Solicitor represent him on each occasion the matter was mentioned, and again at commencement of the trial.

5. A self-represented defendant must be given sufficient information to enable them to have a fair trial: MacPherson v The Queen (1981) 147 CLR 512. At the beginning of the trial the elements of the offence were explained to the accused, together with the trial process, including the role of the judge, the burden of proof, the role of the State, the use of exhibits, the accused’s right to object to evidence or proposed exhibits, his right to cross-examine and the need to put his case to witnesses if he intended to contradict them later. He was informed of his right to make a no-case submission at the end of the State case if he chose to do so. He was also informed of the options available in the event I found a case to answer at the close of the State case. He was made aware of and confirmed that he understood that I would repeat anything for which he required clarification and whilst I could not provide advice, if he required clarification of any matter during the trial, he should make me aware. I reminded him of certain matters as the trial progressed and confirmed on an ongoing basis that he understood what was happening.

STATE CASE

6. The State called seven witnesses and tendered a number of exhibits through those witnesses.

7. Asher Wafi, in-house lawyer with BSP, in response to an order and search warrant issued by the District Court on 10 May 2018 (Exhibit A and B, respectively) produced bank statements for BSP Account No. 701657588 in the name of “Joshua Ipi” for the period 8 June 2017 to 28 February 2018 (Exhibit D1- D6) and a Customer Record Card in the name of Joshua Ipi (Exhibit C) for the said account.

8. The complainant, Joshua Ipi, is a property owner and developer. He did not recognise the person whose picture appears as the account holder in Exhibit C for the above BSP Account No. 701657588 in the name of “Joshua Ipi”.

9. The complainant operates real estate businesses in Port Moresby and Lae. Properties in Port Moresby include units at Turua Avenue and units at Lokua Avenue in East Boroko, which he rents out. According to Exhibit E, he holds the title to the property at Section 41, Allotment 72, Turua Avenue in his own name. After paying off the mortgage, title was transferred to him in 2008: Discharge of Mortgage, Exhibit F. The complainant purchased Lokua Avenue from his savings in 2008/9.

10. The complainant met the accused in the village. They go to the same church. Ipi is from Wabag and the accused is from Kompiam. The accused was one of the boys who grew up in the village.

11. At the request of his tambu, Ipi employed the accused on a casual basis as a caretaker for his properties, based in Port Moresby. His duties were to manage the generator and maintain fuel. He provided the accused with housing and paid him K350 per fortnight. At the time of the alleged offences the accused had been in his employ for about three years. He fired him for unrelated reasons. He realised later that the accused had failed to deposit some rental cheques to his bank account and reported the matter to police. He did not realise at first because the accused was depositing some cheques but not others.

12. Tenants at Turua and Lokua Avenues paid rental monthly. There were five tenants including the Department of Health, Mirupasi Lawyers and Lamana. He instructed the accused to collect rental cheques from the tenants and deposit them to his personal account, in the name of Joshua Ipi, when he was not in Port Moresby to collect the cheques himself. The cheques were to be paid into his personal BSP Bank Account No. beginning with “1000” and ending in “43”. He opened the account in Lae more than 10 years ago.

13. He registered “210 Real Estate” as a business name in November 2016: Exhibit G, Certificate of Registration of Business Name “210 Real Estate”. A company “210 Real Estate Limited” was incorporated on 1 March 2018: Company Extract, Defence Exhibit 1. (A further copy is Exhibit U).The company was registered with the Internal Revenue Commission on 25 May 2018: Exhibit H. Existing tenants continued to make cheques payable to Joshua Ipi pursuant to lease agreements between Joshua Ipi and the tenants. He has a tax identification number (TIN) and complies with tax obligations. New tenants paid rent to 210 Real Estate Ltd, which has a separate bank account. He was paying off his mortgage from his personal account into which the rental monies were deposited. There was a transitional process. Tenants now pay monies into the 210 Real Estate account.

14. At the time of the alleged offences tenants paid to “Joshua Ipi” personally. When he realised that certain cheques had not been paid into his account he asked the accused who told him that the tenants were on leave and would pay the rent when they returned. At the time he believed the...