The State v Jimmy Kendi (2006) N3200

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 04 July 2006
• Citation: (2006) N3200
• Docket Number: CR NO 1274 OF 2003
• Court: National Court
• Year: 2006
• Judgement Number: N3200

Full Title: CR NO 1274 OF 2003; The State v Jimmy Kendi (2006) N3200

National Court: Lenalia, J

Judgment Delivered: 4 July 2006

N3200

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1274 OF 2003

THE STATE

V

JIMMY KENDI

Kokopo: Lenalia, J.

2006: 13 – 17, 23 March

4 July

CRIMINAL LAW – Obtaining goods by false pretence –

Misappropriation – Criminal Code Sections 383A (1) (a) & 404, Ch.No. 262.

CRIMINAL LAW – Particular offence - False Pretence – Plea of not

guilty – Trial – Evidence – Monies allegedly obtained by fraudulent means – False pretence in relation to existing facts – Trial – Evidence. Criminal Code s.404, Ch.No.262.

CRIMINAL LAW – Misappropriation – Plea of not guilty – Trial –

Evidence - Proceeds of false pretence – Misappropriation – Meaning of – Evidence – Obtaining monies by fraudulent means – Criminal Code s.383A (1) (a).

Cases cited

Papua New Guinea Cases

Public Prosecutor’s Request N0.4 Of 1974 [1975] PNGLR.365

Albert Alexander Age v The State [1979] PNGLR.589

Paulus Pawa v The State [1981] PNGLR.498

The State v Tom Morris [1981] PNGLR.493

The State v Gabriel Ramoi [1993] PNGLR.390

The State v Napilye Kuri [1994] PNGLR.371

The State v Francis Natowohala Laumadawa [1994] PNGLR.291

The State v Garitau Bonu & Rossana Bonu [1996] PNGLR.48

Garitau Bony & Rossana Bonu v The State (1997) SC 528

Overseas Cases

R v Williams (1836) 173 E.R. 158

Salomon v Salomon & Co. Ltd. (1879) A.C. 22

Peacock v The King (1911) 13 C.L.R 619

Thomas v The Queen (1960) 102 C.L.R. 102

Plomp v The Queen (1963) 110 C.L.R.324

Counsels:

Mr. C. Sambua, for the State

Mr. D. Lidgett, for the Accused

4 July, 2006.

1. LENALIA, J: The accused is charged with two counts. One for obtaining monies by false pretence pursuant to s.404 and in the second count, the State say he misappropriated the proceeds of the above crime, involving the sum of four million, two hundred and ninety – eight thousand, thirty-seven kina and thirty-three toea, (K4, 298, 037. 33). The State allege that the above amount was the property of the State acquired by false pretence and misapplied contrary to s.383A (1) (a) of the Criminal Code.

Summary of Facts.

2. The accused in these two cases Jimmy Kendi operated an Earth Moving company in Arawa, North Solomons Province between 1983 and 1987. The name of the earth moving company was JIMENDI Enterprises Limited. That company leased a number of heavy machinery and equipment from Credit Corporation (PNG) Ltd for purposes of road construction. The accused operated those machines between the above years involved in road maintenance in 1987, the accused’s company was awarded a contract on a road project by the then North Solomons Provincial Government.

3. In the month of July that same year, due to the company’s inability and failure to comply with its commitments to make monthly re-payments for the hire of the equipments leased, Credit Corporation (PNG.) Ltd. repossessed all equipments and left them on site. In order to complete the road project, North Solomons Provincial Government requested Credit Corporation to complete the uncompleted work left by the accused’s company.

4. In the mean time, Credit Corporation appointed a Receiver Manager to manage the affairs of the machinery and after completion of the road project, all machinery and equipments were shipped to Port Moresby where the machines were refurbished and sold.

5. The State’s allegations are that, the only time the accused was ever engaged on road construction was before July 1987. That thereafter, the accused company never operated or engaged in any further road construction until the Bougainville crisis began in about 1987 or 1988. The State’s case also alleges that after Credit Corporation shipped its machinery to Moresby, the accused was left in Arawa unemployed and thereafter he came to Rabaul to reside in his wife’s village somewhere in this Province.

6. Then on 14 December 1999, the accused wrote a letter to the then Acting Defence Force Secretary claiming that the Defence Force maritime and infantry elements which were present on Bougainville during the crisis period had unlawfully used his machinery and equipment on Loloho and Torauto Island during the Bougainville crisis from 1993 to 1997.

7. On his letter to the Defence Secretary the accused said, defence force personal had used two of his machines during the operation in Bougainville. He referred to those two machines as 1 Caterpillar D6C Bulldozer, Serial No. 10K 11209, engine No.3306.

8. The second machine referred to was a Komatsu W180 Bucket Loader, Serial No.50120 and the model number was KWA05-8. The accused calculated the amount owing to him to be two million, three hundred and eighty-four thousand, eight hundred and eighty-three kina and ninety-five toea (K2, 384, 883. 95), including all accumulated interests. According to the State’s case, the total amount paid to the accused was four million, two hundred and ninety-eight thousand, and thirty seven kina, thirty three toea (K4, 298, 037.33).

9. It is the State’s case now that having submitted his false claim, with the assistance of some corrupt officers of the Department of Finance & Treasury and Department of Defence pushed the claim through all authorities concern, it was processed by Finance & Treasury Department and a cheque was made payable to Bakanovi Transport Pty Ltd in the sum of K4, 298, 037. 33 on Cheque No.632311 dated 14 November 2000. It is alleged that Mr. Kendi and his wife Norma Kendi were the proprietors of the said Bakanovi Transport Pty Ltd when in fact the said company never owned any machinery or equipment during the period which the accused had claimed for.

Evidence.

10. Five witnesses were called by the State to testify orally. The State evidence from the five witnesses and all the documents tendered is this. Between 1986 and 1988, the accused operated a construction company in Arawa, North Solomons Province. That company whose proprietor was the accused operated under its business name “JIMENDI ENTERPRISES LIMITED” (herein under referred to as JEL). In 1986, the accused company was awarded a contract by the North Solomons Province to carry out work on the Pitpit Bridge on the Inus area in Bougainville.

11. Two of the five witnesses called were Bougainvilleans. They are John Felix and Tony Busu. Both John and Tony had been employed by the accused company at some stages during 1986 to 1988. In case of John, he was a trainee mechanic then with the Bougainville Copper Limited. Whenever he took days off, he would work with JEL to gain more experience. After John completed his training in 1987, he got engaged by JEL management as a company mechanic.

12. John said he was there at the time when the accused’s company was doing road construction and road maintenance more particularly on the Pitpit bridge. It is not clear from the State’s evidence whether reference to the bridge here means the accused company was engaged in the building of a new bridge or merely road maintenance done to the portion of road around the aforementioned bridge. However in the middle of 1988, John was told that JEL was to cease operation due to non payment of the lease agreement between the management of that company and Credit Corporation (PNG) Ltd.

13. John recalls that at the time when the accused’s company was a going concern, he had machinery and equipments but when Credit Corporation repossessed the equipments, there were no other machines left on site by JEL. It is his evidence that when the crisis began the accused was no longer operating on Bougainville.

14. After repossession of the machinery by Credit Corporation, John said, after he had shipped the two machines to Rabaul, he came over to Rabaul and he worked with the accused’s company carrying out construction work around Gunanba and Kenabot here in East New Britain Province. At some stages during the crisis, John said he fixed certain machineries including a D6 C caterpillar bulldozer, a Nissan Heavy Duty Prime Mover and a truck. In relation to the D6 C caterpillar and other machines, the witness said as far as he can recall, those machines were never belonging to the accused or his company JEL by which time, such company had been wounded up.

15. As to how and where he got that equipment, John said when he was working with the Defence Force in 1997, he fixed a number of heavy duty machineries for purposes of building a helicopter landing pad for the Defence Force helicopters. The witness was asked in chief whose machines did he fixed. John said, the machines were belonging to Mr. Peter Goodenough. Asked further as to where he did fix those machines the witness said, he fixed them within the company premises of a company he named as “TORU TORU TRANSPORT LIMITED” which was originally known as “TORU TORU TRANSPORT PTY. LIMITED”.

16. After fixing such machineries he then drove them to Loloho. He gave the distance from Loloho to Mr.Goodenough’s premises as from the Kokopo Court House to Ulaveo Plantation.

17. There is something sinister about John Felix evidence. I will accept for purposes of this trial the fact that, witness John Felix knew the accused prior to the Bougainville crisis despite the defence evidence which will later show that the accused never conducted any business with either John Felix or Tony Busu who is also a Bougainvillean. The question that the Court will ask at this stage is why witness John Felix had to ship the D6 C caterpillar bulldozer a Front End Loader and a Nissan...