The State v Kembert Muro (2013) N5289

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ.
• Judgment Date: 19 June 2013
• Citation: (2013) N5289
• Court: National Court
• Year: 2013
• Judgement Number: N5289

Full Title: The State v Kembert Muro (2013) N5289

National Court: Toliken, AJ.

Judgment Delivered: 19 June 2013

N5289

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1115-1117 of 2009

THE STATE

V

KEMBERT MURO

Popondetta: Toliken, AJ.

2013: 15th, 18th, 19th February

19th June

CRIMINAL LAW – Practice and procedure – Charge upon indictment different from that which accused was committed for trial – Whether indictment defective – Not defective – Orders and rulings of committal court not binding on Public Prosecutor (or State Prosecutor) in the exercise of his absolute and exclusive discretion to present an indictment for any offence that, in his opinion, is supported by the evidence in the committal depositions – Criminal Code Act Ch. 262,s 525(1)(a); Public Prosecutor (Office and Functions) Act Ch. 338)s.4.

CRIMINAL LAW – Practice and procedure – Evidence - Particular offence – False pretence – Whether details of false pretence ought to be pleaded in indictment – Not necessary to plead details or particulars in indictment – Details mean particulars - Criminal Code Act Ch. 262, s. 530 (18).

CRIMINAL LAW – Particular offence – False pretence – Trial – General denial – Whether accused falsely represented himself and obtained monies from complainant - Two cheques, one drawn to accused’s employer and one for the accused - Whether cheque drawn for accused was a “pay cash” cheque to drawn under his name – Whether proceeds of the cheque belonged to his employer or to the accused – Cheque drawn in the name of the accused – Reasonable inference that the money was the accused’s and not his employer’s –Intention to defraud not proven – The requisite intention on a charge of false pretence must exist at the time the alleged false representation was made – Verdict of not guilty returned – Criminal Code Act Ch. 262, s 404 (1)(a).

CRIMINAL LAW – Particular offence – Misappropriation – Trial – General denial – Whether accused dishonestly applied to his own use monies belonging to his employer - Charge fails for failure of the State to prove charge of false pretence – Criminal Code Act Ch. 262, s 383A (2) (b)(d).

Cases Cited

The State v Herman Leahy (2008) N3570

The State v Saul Ogerem (2004) N2780

The State v Tanedo [1975] PNGLR 395)

Counsel:

J.W. Tamate, for the State

L. Mamu, for the prisoner

JUDGMENT ON VERDICT

19th June, 2013

1. TOLIKEN, AJ. The accused Kembert Muro was committed for trial on 28/08.09 for three (3) counts of false pretence in contravention of Section 404 (1)(a) of the Criminal Code Act Ch.262 (the Code).

2. On the 15th of February 2012, he was indicted for one count of false pretence and one count of misappropriation contrary to Sections 404 (1)(a) and 383A(2)(b)(d) of the Code respectively.

3. The indictment alleges as follows:

Count One: KEMBERT MURO of BIWAT in East Sepik Province stand charged that he on the 03rd day [of] January 2009 at Goroka in Papua New Guinea did by false pretence obtained from one Jonah Lubuwe of Moibamo Construction Ltd two (2) cheques valued at K10,000.00 and K5000.00, being for outstanding bills for sale of sawn timber by Ambogo Sawmill Limited with intent thereby then to defraud the Moibamo Construction Ltd.

Count Two. KEMBERT MURO of BIWAT in East Sepik Province stand charged that he on the 03rd day [of] February 2009 at Goroka in Papua New Guinea dishonestly applied to his own use Five Thousand Kina (K5000.00) property belonging to Ambogo Sawmill.

THE ALLEGATIONS

4. The State alleged that the accused was an employee of the Amobogo Sawmill Company (Ambogo) in Popondetta. He was employed as a shipping clerk.

5. It is alleged that during the month of November 2008 there was a purchase agreement for sawn timber at the request of Moibamo Construction Ltd (Moibamo), a company based in Goroka.

6. Sawn timber was shipped and transported to Goroka as per the agreement. Moibamo made a down payment of K30,000.00 leaving an outstanding balance of some K34,0000.00.

7. On 21st January 2009, the accused requested for and was given compassionate leave by his employer to attend to his uncle’s funeral arrangements in the Eastern Highlands.

8. On 03rd February 2009, when in Goroka, the accused approached the Manager of Moibamo. He informed him that he was on a business trip and that he was authorized by his boss to pick up the outstanding payment owed by Moibamo to Ambogo. The accused showed him his employment ID and instructed the owner of Moibamo to raise two (2) cheques – one for the amount of K10,000.00 payable to Ambogo and one for K5000.00 payable in his name. The accused informed the owner of Moibamo that he will sort things out with his employer later.

9. It is alleged that after the accused received the two cheques he dishonestly applied K5000.00 belonging to Ambogo to his own use.

10. The State alleged that when returned to Popondetta he never repaid those monies or hand over the cheque to Ambogo.

11. The matter was reported to the police and 23rd of March 2009. He was later apprehended, arrested and charged.

12. When asked by the Police the accused told them that the cheque written to Ambogo was at home. The police collected the cheque and handed it over to the Manager of Ambogo.

13. The State alleged that the accused was not on duty nor was he authorized by Ambogo to collect the outstanding payments. He went on his own and lied to the Manager of Moibamo under false pretence and obtained the cheques amounting to K15,000.00 which belonged to his employer Ambogo.

14. It is alleged that the accused never repaid the K5000.00 that he used to Ambogo. Hence he applied that sum which belonged to Ambogo to his own use.

PRELIMINARY ISSUE

(1) Defect in Indictment

15. Before the accused was formally arraigned, defence counsel Mr. Mamu raised an objection to the indictment, arguing that they have no knowledge of the charge of misappropriation. They only know of the three counts of false pretence upon which the accused was committed to Court for trial.

16. He argued that since the accused was never committed for misappropriation, then, any indictment must necessarily be brought under Section 526 of the Code (Indictment without committal [Ex-Officio Indictment]).

17. He argued that the indictment was therefore defective and should be dismissed.

18. Mr. Tamate for the State countered that the Public Prosecutor has the power to indict for any offence warranted by the evidence.

19. Section 526 only applies where the District Court refuses to commit an accused (defendant) for trial. In the current case the accused was committed for trial and the State correctly indicted him under Section 525 of the Code which allows for the accused to be indicted for any offence that the evidence warrants.

20. I ruled that Mr. Mamu’s objection was misconceived as Section 525 (1)(a) of the Code clearly empowers the Public Prosecutor or a State Prosecutor to indict a person who has been committed for trial or sentence, for “any offence that the evidence appears to him to warrant.” Conversely he may decline to lay a charge at all by filing the appropriate declaration. (Subs. (1)(b))

21. It is misconceived to postulate that the Public Prosecutor’s prosecutorial powers which include the power to lay charges or to decline to do so, can be circumvented, curtailed or restricted by the rulings of a committal court.

22. Committal proceedings are not, in the strict sense judicial in nature, despite the fact that they are conducted by District Court magistrate who is a judicial officer. They are administrative or ministerial only. The Magistrate merely vets or examines the evidence to see if it is sufficient to commit the defendant to stand trial or for sentence in the National Court. Be that as it may, the magistrate must act judiciously when exercising this function.

23. The orders and rulings of a committal court do not in any way bound the Public Prosecutor (or a State Prosecutor for that matter) in the exercise of his absolute and exclusive discretion to present an indictment for any offence that, in his opinion is supported by the evidence in the committal depositions. He may in his discretion decline to lay any charge at all and may even file a nolle prosequi. (Ss 525(1)(b);527 of the Code; s. 4 of Public Prosecutor (Office and Functions) Act Ch. 338)

24. A similar power is vested in a committal magistrate by Section 95 (3) of the District Court Act Ch. 40, that if he “is of the opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, [he] shall proceed with the examination in accordance with this Division.” (under-lining added).

25. This clearly empowers the magistrate to commit a defendant for any indictable offence at all which in his opinion, is established by the evidence in the prosecutor’s brief. He is not restricted or bound by the charge preferred against the defendant in the information before him.

26. I ruled accordingly and the trial proceeded with the arraignment of the accused.

PLEA

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