Unreported National Court Decisions
N859
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
BILLY AGARI
Waigani
Jalina AJ
27-30 April 1990
2 May 1990
CRIMINAL LAW - Criminal Code s 383A - Misappropriation - Circumstantial case - Moneys not accounted for - Unauthorised salaries and overtime - Other persons involved with accused in preparation of overtime and payment of salaries - No evidence against accused from fellow employees - Inference consistent with guilt cannot be drawn - Plea of guilty by an accomplice before another judge - Not evidence against accused unless he gives evidence implicating the accused.
Cases Cited:
Brian Kindi Lawi v The State [1987] PNGLR 183.
The State v Tom Morris [1981] PNGLR 493.
Counsel:
C Manek, for the State.
G Manuhu, for the accused.
Cur adv vult
2 May 1990
JALINA AJ:  The accused is charged on indictment that he between the 1st day of January, 1983 and 30th day of September, 1984 at Port Moresby in Papua New Guinea being employed by the Department of Works and Supply applied to his own use a sum of about K524.82 the property of the State. He has pleaded not guilty to the charge.
THE FACTS
The facts of this case, which are taken from the facts given by the State Prosecutor for the purposes of arraignment, are that between 1st January, 1983 and 30th September, 1984 the accused was employed as Pay Officer and Paymaster with the then Department of Works and Supply in Port Moresby. He was employed with others. During the course of his employment he had access to certain documents such as time sheets, employee’s earning cards, payroll journals, pay variation advices, repayment registers and other documents that go towards raising of pays and for various employees of the Department. As a result of this opportunity of access to those documents he is alleged to have made up unauthorized time sheets resulting in salaries being raised in favour of certain of employees but were not paid to them. These moneys were put by the accused to his own use. During the said period the accused is alleged to have raised salaries and overtime for Emmanuel Ali, Paul Wilo and Kamari Varika all employees of the Department but have used the money. The offence was discovered during audits carried out by the Internal Auditor, Ivaroa Lavai.
THE EVIDENCE
Due to the alleged offence having been committed in 1983 and the accused being charged in 1986, some of the employees concerned having ceased employment with the Department of Works, no oral evidence was given at the trial. All the evidence before me were tendered by consent of defence counsel. These evidence include a record of interview between the accused and Constable Donnie Owai, an affidavit from each of Kamari Varika, Emmanuel Ali and Paul Wilo and a record of interview between Ivaroa Lavai (the internal auditor) and the accused.
(a)        The Record of Interview
There is nothing in the record of interview that is worth discussing here. It does not try to pin down the accused to the offence. It was therefore a waste of time to have had the interview with the accused in the first place.
(b)        Kamari Varika
Kamari Varika’s evidence (which is by affidavit) is that he was paid K500.00 upon his retrenchment on 4th February, 1983. After he was retrenched he had never collected pay on 18th May. Mr Varika’s work sheet shows pay based on his work sheet and an amount of K58.38 is stated. However, as the statement is unsigned, I do not consider that it would be appropriate for me to consider it as evidence against the accused even though the defence counsel has consented to its being tendered by the State Prosecutor. Mr Varika should have been called to give evidence orally on oath.
(c)        Emmanuel Ali
Mr Ali, who was a refrigeration mechanic at the time, said that he was on recreation leave from 12th October to 23rd November 1983 and was to resume duties on 24th November. He was paid K305.61 by cheque before going on leave. He, however, did not receive K224.64 which he is said to have received with the amount of K305.61.
He is also stated to be entitled to overtime payment in the sum of K83.35 but there is no evidence from him through the affidavit as to what happened to that money which was for the pay period 9th December to 22 December 1982.
(d)        Paul Wilo
Mr Wilo, whose evidence is also through an affidavit, was a third year refrigeration mechanic in 1983.
During the period 22nd July 1983 to 1st September, 1983 he was at home in Wewak. He could not recall collecting his pay packet for pay day 3rd August, 1983. No pays were sent to Wewak when he was on leave during that time although the accused is said to have processed his pay while he was on leave. Overtime sheet for period 7th July to 20th July 1983 had also been processed for him but he does not indicate in his affidavit as to what happened to this. The payroll journal, also attached to the affidavit, makes no mention of his name.
(e)        Record of interview between the accused and Ivaroa Lavai
Ivaroa Lavai conducted an interview with the accused on 14th June, 1984 when moneys which went into the pay office were not accounted for. This was for the period 1st January, 1983 to January, 1984.
The accused commenced work at the pay office as Assistant Paymaster in 1982. He was involved in the actual paying of salaries and overtime. The procedure appears to be that where officers/employees did not collect their salaries and overtime they were returned to the Paymaster who locked them away. Those pays not paid out or collected were returned but these were never recorded. Also some sectional supervisors where allowed to collect pays for their respective sections for payment to their respective officers. Pays for those absent or on leave were usually returned to the Paymaster. When these pays were returned unpaid because of someone being on leave or does not collect it, it is noted to that effect on the pay packet and returned to the Paymaster.
The accused was then questioned regarding pays for specific persons who were employees or purported to be employees of the Department of Works. On some occasions he had no knowledge of what happened to the pays and on others he mentioned names of his fellow employees who were responsible for either paying or repaying salaries and overtime.
The State has only charged the accused for unaccounted moneys for Kamari Varika, Paul Wilo and Emmanuel Ali totalling K524.82. With regard to moneys for Kamari Varika in the sum of K58.39 the accused said that he paid him together with Nadi Foida, Koita Amura and Lea Guba. No questions were asked regarding any statement from those people as to whether they received their wages with Mr. Varika from the accused. They were not even called to give evidence orally on oath.
With regard to the payment of K59.70 to Mr Paul Wilo processed for him for pay period ending 3rd March, 1987 whilst Paul Wilo was on leave, the accused replied that the wages were repaid and that the appearance of the name “P Nilo” instead of “P Wilo” on the repayment register was a mistake as there was no employee by the name of “P Nilo”. The wages he repaid were for “P Wilo” and not “P Nilo”.
With regard to the amount of K333.70 being wages and overtime for Pay Period ending 12th October, 1983 for Emmanuel Ali which was not repaid, he said that he did not know why Mr Ali was not paid. He said that Arthur Labi, Philip and Aniwa were involved in the payment of salaries for that payday. Payments and repayment of salaries were handled by any one of them. He did not know why the K223.64 were not returned and repaid as these four people were involved. He agreed that if there were deficiencies in any monies then the four of them would be responsible. The interview did not go far enough to show that the accused was the person who was responsible and therefore stole the money.
After the State closed its case the accused has elected to remain silent. Silence of the accused does not mean he is guilty. This must be determined after considering all the evidence.
FINDINGS OF FACT
Having considered the evidence before the me I find that:
1.       the accused was at the relevant time specified in the indictment employed by the Department of Works and Supply as Pay Officer and Acting Paymaster when the Paymaster was not available.
2.       because of the nature of his job he had access to payroll, time sheets, etc.
3.       time sheets were made out and pays raised for Paul Wilo, Emmanuel Ali and Kamari Varika.
4.       the pays for those persons were raised after they were on leave or retrenched.
5.       that such pays were not paid to them.
However, the case against the accused is circumstantial. There is no direct evidence that the accused took the amount specified in the indictment and applied it to his own use. There were a number of other persons whose names are mentioned by the accused or those who were working with him but there is no evidence from them to show whether they were working with him and if so there is no evidence from them to show that it was the accused who was involved in the payment of those salaries. To say that his fellow employees have appeared before another judge and have pleaded guilty is no excuse. It is no proof against the accused. They ought to have been called to give evidence against the accused.
The law as to circumstantial evidence is clearly stated by Miles J in The State v Tom Morris [1981] PNGLR 493 and agreed to by Andrew J in the Supreme Court decision of Paulus Pawa v The State [1981] PNGLR 498 at 501. His Honour Miles J said at p 495:
“I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in The High Court of Australia in Barca v The Queen (1975) 50 ALJR 108 at p 117:
‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King (1911) 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v The Queen (1963) 110 CLR 234 at p 252; see also Thomas v The Queen (1960) 102 CLR 584 at pp 605-606. However an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration, of all the facts in evidence: Peacock v The Queen at p 661. These principles are well settled in Australia.’“
Mr Manek has submitted that because no one, including the accused, had given evidence, the credibility of the witnesses as to who is telling the truth cannot be ascertained. Consequently the whole matter is unexplained and therefore is within the accused’s own knowledge and since he has not explained it I should draw an inference that he dishonestly applied the money to his own use and as such I should convict the accused. He relied on the Supreme Court decision in Brian Kindi Lawi v The State [1987] PNGLR 183. With respect, I cannot agree with this submission. That case is distinguishable from the present case in that whereas in Brian Kindi Lawi a specific amount was given to the Appellant which he deposited in his accounts in Mt Hagen, and his failure to explain as to how he spent the money left no option to the court but to draw an inference that he dishonestly applied the money to his own use, in the present case there is no specific amount given to the accused for a specific purpose. The present case is involved with moneys which could not generally be accounted for. Also, it is not certain as to who took the money which were not repaid. The accused has given an explanation as to who else was involved in the job that he was doing at the Works Department but his fellow workers have not been called to give evidence to point the finger at the accused as it were.
On the evidence before me, I have a suspicion that the accused may have taken the money alleged in the indictment but mere suspicion is not good enough. The law does not allow me to act on suspicions. As the case is based on circumstantial evidence it must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. On the evidence before me I am not satisfied beyond reasonable doubt as to the guilt of the accused and as such I find him not guilty of the charge and discharge him.
Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.