The State v Jessica Douba

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Berrigan, J
• Judgment Date: 14 December 2018
• Citation: (2018) N7627
• Judgment Number: N7627
• Year: 2018

Full : CR (FC) 180 OF 2018; The State v Jessica Douba (2018) N7627

National Court: Berrigan, J

Judgment Delivered: 14 December 2018

N7627

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 180 OF 2018

THE STATE

V

JESSICA DOUBA

Waigani: Berrigan, J

2018: 19 October;

5, 6, 7, 13, 15 & 23 November;

3, 10, 11 & 14 December

CRIMINAL LAW – s. 525(1)(a) Criminal Code –Public Prosecutor, or any State Prosecutor, may indict a person committed to the National Court for “any offence that the evidence appears to him to warrant” – indictment neither prejudicial nor embarrassing as a result of any variance between the amount(s) of monies averred in the indictment at trial and that alleged by police or at committal - s. 383A(1)(a) Criminal Code – Misappropriation – Meaning of “applied” – s. 534(1)(c) Criminal Code - Indictment not open to objection for stating imperfectly the time at which the offence was committed – Dates not an essential element of the offence – s. 535 Criminal Code - Amendment of indictment following closing submissions – meaning of “not material to the merits of the case” and “the accused person will not be prejudiced in his defence”.

Facts

The accused was charged with two counts of misappropriation contrary to s.383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code). It is alleged that whilst employed by the South Pacific Motor Sports Club Incorporated (SPMSC) the accused dishonestly applied to her own use cash takings generated from gaming machines at the SPMSC which she was required to deposit to the bank account of the National Gaming and Control Board (NGCB).

Count 1 alleged that between the 1st day of December 2017 and the 3rd day of December 2017 the accused dishonestly applied to her own use cash monies in the sum of K13,018.06, property belonging to the SPMSC. The monies were particularised by the State as poker machine takings for Friday, 1st, Saturday, 2nd and Sunday, 3rd December 2017.

Count 2 alleged that between the 4th day of December 2017 and the 21st day of January 2018 the accused dishonestly applied to her own use cash monies in the sum of K24,573.60, belonging to the SPMSC. The State particularised the monies as takings for the 4th, 10th, 11th, 16th and 20th December 2017, and the 2nd and 12th January 2018.

Held:

As to the variance between the amount(s) of monies averred in the indictment and the amount(s) alleged at committal:

1. Section 525(1) of the Criminal Code provides the Public Prosecutor, and indeed any State Prosecutor, with broad discretion to indict a person who has been committed for trial or sentence to the National Court for any offence that the evidence appears to warrant.

2. This is consistent with the powers of the Public Prosecutor, in accordance with Acts of Parliament and the National and Supreme Court Rules, to control the exercise and performance of the prosecution function pursuant to s. 17 of the Constitution. It is also essential to ensuring that accused persons are indicted on charges that appropriately reflect the nature and extent of criminal conduct which is disclosed by the evidence. See also The State v Louise Paraka (2002) N2317.

3. The indictment was neither prejudicial nor embarrassing to the accused as a result of any variance between the amount(s) of monies averred in the indictment at trial and that alleged by police or at committal.

As to Count 1:

4. Before an item of property will be “applied” for the purposes of s. 383A(1) of the Criminal Code there has to be an intention held in relation to the property, and there also has to be some implementation of that intention, i.e. some act or acts which constitute some dealing with the thing: R v Easton [1994] 1 Qd R 531 adopted.

5. The fact that the cash takings were generated at the SPMSC on the 1st, 2nd and 3rd December 2017 is a separate issue as to when the accused applied those monies to her own use.

6. The evidence at trial established that the accused applied cash monies in the sum of K13,042, namely poker machine takings for Friday, 1st, Saturday, 2nd and Sunday, 3rd December 2017, to her own use on Monday, 4th December 2017.

7. The cash monies were “property”, “belonging to another person”, namely the SPMSC, for the purposes of s. 383A(1)(a) of the Criminal Code. See s. 383A(3)(a) and (d). John Kasaipwalova v The State [1977] PNGLR 257 considered. The value of the property was above K2000 for the purposes of s. 383A(2)(d) of the Criminal Code.

8. At the time the accused acted dishonestly according to the ordinary standards of reasonable and honest people and knew that what she was doing was dishonest according to those standards: The State v Francis Laumadava [1994] PNGLR 291 applying Brian Kindi Lawi v The State [1987] PNGLR 183.

9. On the above findings there was a variance between Count 1 on the indictment and the evidence such that the property was applied to the accused’s own use on the 4th December 2017 and outside the dates alleged in Count 1. Further, the amount of monies was K13,042.

10. The amount of monies alleged to have been misappropriated is not an essential element of s. 383A(1)(a). Proof that the accused dealt with any portion of the value of it is sufficient to constitute the offence: S.530 (6) and (7) of the Criminal Code.

11. An indictment is not open to objection for stating imperfectly the time at which the offence was committed: S. 534(1)(c) of the Criminal Code. This reflects the common law rule that a date specified in an indictment is not a material matter unless it forms an essential element of the offence: The State v Titeva Fineko [1978] PNGLR 262, adopting R v Dossi (1918) 13 Cr App R 158.

12. Whether the date of an offence is an essential element will depend on the circumstances of the case and the provisions of the statute creating the offence. WGC v R (2007) 233 CLR 66 considered.

13. The date is not an essential element of the offence in this case and the State was at liberty to allege that the offence occurred between dates.

14. Whilst the evidence at trial established that the accused committed the offence outside those dates, that does not affect the validity of the indictment nor the guilt of the accused: s. 534(1)(c) of the Criminal Code and The State v Titeva Fineko [1978] PNGLR 262 applied.

15. The accused is convicted of Count 1 in the indictment.

As to Count 2:

16. The evidence at trial was insufficient to establish beyond reasonable doubt that the accused dishonestly applied to her own use monies in the sum of K24,573.60 belonging to SPMSC.

17. The accused is acquitted of Count 2 in the indictment.

Cases Cited:

Papua New Guinea Cases

Brian Kindi Lawi v The State [1987] PNGLR 183

Havila Kavo v The State (2015) SC1450

John Kasaipwalova v The State [1977] PNGLR 257

Simili Kara v The State [1984] PNGLR 254

The State v Francis Laumadava [1994] PNGLR 291

The State v Gene [1991] PNGLR 33

The State v Koivaku [1986] PNGLR 217

The State v Louise Paraka (2002) N2317

The State v Raraka (2007) PNGC 13, 7 May 2007

The State v Tanedo [1975] PNGLR 395

The State v Titeva Fineko [1978] PNGLR 262

The State v Yangi (2012) N4573

Overseas Cases

Gillard v The Queen (2013) 275 FLR 416

Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77

R v Bonner [1974] Crim LR 479

R v Dossi (1918) 13 Cr App R 158

R v Easton [1994] 1 Qd R 531

R v Trifyllis (1998) QCA 416

WGC v R (2007) 233 CLR 66

References cited

Sections 383A(1)(a)(2)(d), 525(1), 534(1)(c) and 535(1)(a)(c)(d) of the Criminal Code

Section 17 of the Constitution

Counsel:

Ms T. Aihi, for the State

Mr E. Sasingian , for the Accused

DECISION ON VERDICT

14th December, 2018

1. BERRIGAN J: The accused, Jessica Douba, was indicted on two counts of misappropriation, contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (the Criminal Code), namely, that she:

Count 1: “between the 01st day of December 2017 and the 3rd day of December 2017… dishonestly applied to her own use cash monies the sum of… K13,018.06, property belonging to South Pacific Motor Sports Club Incorporated”; and

Count 2: “between the 04th day of December 2017 and the 21st day of January 2018 … dishonestly applied to her own use cash monies the sum of K24,573.60, property belonging to South Pacific Motor Sports Club Incorporated”.

2. At the time the accused was employed by the South Pacific Motor Sports Club Incorporated (SPMSC), often referred to as the “Car Club”. It is not disputed that as part of her employment the accused was required to conduct banking on behalf of SPMSC, including the banking of takings from gaming machines, also referred to as “poker machines” or “pokies”. Pokies takings were to be deposited to the account of the National Gaming Control Board (NGCB), for...