The State v Francis Kumo Gene [1991] PNGLR 33

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Brunton J
• Judgment Date: 08 January 1991
• Citation: [1991] PNGLR 33
• Judgment Number: N940
• Year: 1991

Full Title: The State v Francis Kumo Gene [1991] PNGLR 33

National Court: Brunton J

Judgment Delivered: 8 January 1991

N940

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

GENE

Kundiawa

Brunton J

25-26 September 1990

7-9 November 1990

12 November 1990

8 January 1991

CRIMINAL LAW — Particular offences — Misappropriation of property — "A legal or equitable interest or claim to the property" — Requires proof of proprietary rights — Officer bearer of unincorporated association — Money held on condition of use for project — Nature of interest — Criminal Code (Ch No 262), s 383a.

CRIMINAL LAW — Practice and procedure — Indictments — Amendment of — At trial — where variance between indictment and evidence — Whether "material to merits of case" — Whether prejudice to accused — Misappropriation of property — Rights to property defectively charged — Amendment after case closed not allowed — Criminal Code (Ch No 262), s 535.

The Criminal Code (Ch No 262), s 383a (1) (a), 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) ...

...

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender's application of the property, had control of it."

Section 535 permits amendment of indictments where the court is satisfied that: " (c) the variance, omission or insertion is not material to the merits of the case; ..."

Held

(1) The words in s 383a (3) (d) of the Criminal Code, "any person having a legal or equitable interest in or claim to the property", refer to persons who have proprietary rights in property, such as bailors, mortgagees, lessors, trustees, etc: Semble, they can also refer to choses in action.

Lawi v The State [1987] PNGLR 183, distinguished.

(2) Accordingly, where money was granted by the State to persons who represented an unincorporated provincial youth council on condition that the money be used for a particular purpose, namely, a bookkeeping project, an allegation in the indictment charging misappropriation under s 383a that the money was "the property of the State" was at variance with the evidence.

(3) The variance between the indictment and the evidence was "material to the merits of the case" within s 535.

(4) An amendment made after the court had heard all of the evidence and the case was closed to reflect the proprietory rights revealed by the evidence would prejudice the accused in his defence on the merits and should be refused.

R v Smith [1950] 2 All ER 679 at 682, applied.

R v Gregory (1972) 56 Cr App R 441, considered.

Discussion of the power of the court to amend indictments and the functions of counsel in relation to defective indictments.

Cases Cited

Honeywill & Stein Ltd v Larkin Bros (London's Commercial Photographers) Ltd [1934] 1 KB 191; [1933] All ER Rep 77.

Lawi v The State [1987] PNGLR 183.

R v Bonner [1974] Crim LR 479.

R v Collison (1980) 71 Cr App R 249.

R v Gregory (1972) 56 Cr App R 441.

R v Hall [1968] 2 QB 787; (1968) 52 Cr App R 528.

R v Johal [1973] 1 QB 475; (1972) 56 Cr App R 348.

R v Radley (1973) 58 Cr App R 394.

R v Smith [1950] 2 All ER 679.

R v Thomas [1983] Crim LR 619.

Trial

This was the trial of an accused on a charge of misappropriation of property contrary to s 383a of the Criminal Code (Ch No 262).

Counsel

J Kesan, for the State.

F Terra, for the accused.

Cur adv vult

8 January 1991

THE INDICTMENT

BRUNTON J: The accused was charged with three counts of misappropriation contrary to s 383a of the Criminal Code (Ch No 262), and pleaded not guilty to each count.

The amended counts were:

1st count:Francis Kumo Gene of Kupau Village, Pari, Chimbu Province is charged that he between the 8th and the 15th day of December 1988 at Kundiawa in Papua New Guinea dishonestly applied to his own use the sum of K225, the property of the State.2nd count:And Also the said Francis Kumo Gene is further charged that he between the 7th and the 24th day of August 1989 at Kundiawa in Papua New Guinea dishonestly applied to his own use the sum of K700 the property of the State.3rd count:And Also the said Francis Kumo Gene is further charged that he on the 1st day of September 1989 at Kundiawa in Papua New Guinea dishonestly applied to his own use the sum of three thousand kina (K3,000) the property of the State.In respect of the first count the indictment had originally alleged an amount of K2,225; this was amended during the course of the trial, by consent, to K225. In respect of the second count the indictment originally alleged an amount of K980; this was amended during the course of the trial to K700, by conset. It was alleged that the accused was the Deputy Chairman of the Simbu Provincial Youth Council, and signatory to its bank accounts, and had misappropriated the said moneys from the Council's bank accounts by dishonestly withdrawing it and putting it to his own use.

THE FIRST COUNT

The defence called two witnesses to explain the honest nature of the appropriation by the accused of the amount alleged in this Court. The State conceded, in my view quite properly, that this evidence should be accepted by the court. The witnesses were independent and both had a good demeanour in the witness box. I accept their evidence and I acquit the accused on this count.

THE DEFECTIVE INDICTMENT

After the case had closed, and the court retired to consider its verdict, it came to my attention that in respect of each count it had been alleged that the property misappropriated was the property of the State.

On reflection, the evidence before the court did not meet that allegation.

The evidence showed:

(a) That the Independent State of Papua New Guinea had issued two cheques to the Simbu Provincial Youth Council, drawn on the Department of Finance FCB Drawing Account 2. One cheque was for K22,950 and the other cheque was for K1,866.39 (total K41,616.39). There was no direct evidence before me that the Department of Finance FCB Drawing Account 2 was the property of the State, but this could be inferred and I do so infer the K41,616.39 to have been the property of the State, before it was paid to the Simbu Provincial Youth Council.

(b) There was no evidence before the court to suggest that the Simbu Provincial Youth Council was anything other than a voluntary association, an unincorporated association which had been established informally. The Constitution of the Simbu Provincial Youth Council was not before the court. No certificate of incorporation under any corporation legislation was before the court. The court was not aware of any statute either provincial or national which gave legal personality to the Simbu Provincial Youth Council.

The evidence showed the composition of the Simbu Provincial Youth Council was an elected executive of an association, with a senior public servant appointed ex-officio — this was Mr Bonoan Polume the former Assistant Secretary, Department of Youth and Community Services in the Simbu Province. The members of the Council were the youth representatives drawn from all the districts in the province, and representatives from churches and other social groups. The evidence before the court showed that the Council was not a statutory body, and on the evidence I find as a matter of fact and law that it was an unincorporated association of a separate legal personality from the State.

(c) The Simbu Provincial Youth Council operated a number of bank accounts. The evidence disclosed that these accounts were the property of the Simbu Provincial Youth Council. They were separate and quite distinct from those operated by the State. I find that the bank accounts, Simbu Provincial Youth Council cheque account No 3136480128 titled "Simbu Youth Project Fund" at the PNGBC Bank Kundiawa, and the Simbu Provincial Youth Council Bee-Keeping Account, savings account No 0024235 at the PNGBC Bank Kundiawa, were not the property of the State. Nor were they controlled by the State, although the Council was obliged to report to the State on how the money had been spent.

(d) The total funding of K41,616.39 was given by the State for 11 youth projects. For the purposes of this trial only one project is relevant; it was described in the following terms: "6. Simbu Provincial Youth Council Bee-Keeping K4,500 Cheque No: 28-182098."

THE LEGAL NATURE OF THE BEE-KEEPING ACCOUNT

If A gives property to B then A loses all legal and beneficial right to the property. But if A gives property to B on a condition, that is known as a gift for a particular purpose, then generally the law sees that gift as...