State v Krapp No.1 [2016] PGNC 287; N6492 (22 September 2016)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – Guilty after Trial - Nuku District Volunteer Coordinator for HIV/AIDS misappropriated K11, 000.00 earmarked for World Aids Day celebration in Nuku, Palai and Yangkok LLG areas in 2011 – All monies used elsewhere in the exercise of his discretion which he did not have and never had.

CRIMINAL LAW – Misappropriation – Dishonesty – Dishonesty applied in its plain ordinary dictionary meaning – Intent to cheat, deceive or mislead - Section 383A (1) (a).

CRIMINAL LAW – Designated funds requested for and released for specific activity used elsewhere mounts to misappropriation.

CRIMINAL LAW – All elements of the offence successfully made out – Guilty verdict returned on Misappropriation - Section 383A (1) (a).

Counsel:

Mr. Paul Tusais, for the State
Ms.Renatta Yayabu, for the Accused

2. Between 17^th and 22nd of November 2011 at Vanimo, Sandaun Province the accused dishonestly applied for his own use and the use of other unknown persons the sum of K11, 000 the property of the State of Papua New Guinea. Those monies were applied for and released by Sandaun Provincial Aids Council or SPAC to be used by the four Local Level Government areas( Nuku Central, Yangkok, Palai, Maimai Wanwan) as part of their World Aids Day awareness programme activities leading up to 1^st December 2011, World Aids Day.

3. The State evidence consisted of three oral testimonies and 15 documentary evidence tendered into court by consent.

Particulars			Exhibit Nos
1		Record of Interview – 24/4/2014 Samson Krapp- English	1a
2		Record of Interview – 24/4/2014 Samson Krapp- Pidgin	1b
3		Copy of BSP Cheque of K12, 500 made out to the Accused 11/11/11. Chq No. 906548	2
4		Copy of BSP Deposit slip to Accused account for K12,500 on 15/11/2011	3
5		Copy of letter from Symporian to BSP Bank Manager Vanimo to facilitate funds to Samson Krapp. 11/11/2011	4
6		Copy of cheque requisition voucher	5
7		Copy of requisition for expenditure FF3	6
8		Copy of General Expenses FF4	7
9		Copy of SPAC Development Funding Request Form	8
10	Copy of HIV/AIDS Response Activity Planning Form		9
11	Copy of HIV/AIDS Response Activity Budget Breakdown		10
12	Copy of Search Warrant		11
13	Copy of Bank Statement – Samson Krapp AC No. 100100800		12
14	Witness Affidavit – Rodney Tara		13
15	Copy of BSP Cheque paid to Ricky Saren for World Aids Day Celebration in Vanimo and related expenses		14
16	Copies of Receipts for services rendered by service providers (2 pages)		15

4. Symphorian Sumun, acting Provincial HIV/AIDS Coordinator for West Sepik Province, based in Vanimo from here on gave testimony as follows: Provincial affiliates of The National HIV/AIDS Council of Papua New Guinea have access to some level of funding to conduct awareness programmes and or activities in the provinces on World AIDS Day which falls on the 1^st day of December each year. In 2011 the accused, in his capacity as Nuku District Volunteer Coordinator applied for funds on behalf of the four LLG areas to the amount of K12,500 as follows: Nuku Central K4, 000; Yangkok K3, 500; Palai K3, 500 and Maimai Wanwan K1, 500. All such monies were to be paid to named persons from the respective LLG areas. On 11^th November 2011 a BSP Bank cheque for K12, 500 was made out in his name and same deposited into his personal account in Vanimo. Being the Coordinator he was entrusted with the responsibility of distributing the said monies to the LLG area as has happened in previous years. All three LLG’s were never paid their allocation save for Maimai Wanwan with K1, 500. As a result no acquittals or reports as to how the monies were used were submitted to the acting Provincial HIV/AIDS Coordinator.

5. Palai LLG conducted its planned awareness activities with promises to repay their creditors and service providers as soon as their promised funds became available to them to no avail. Instead additional monies were released by the Provincial HIV/AIDS Coordinator to service providers. A Technical Officer assigned to investigate complaints of the missing monies from its intended recipient’s was unable to get some answers from Samson Krapp as he remained evasive and did not co-operate with the Investigator. The witness said Samson Krapp was known to him personally and he has been trusted in previous years for doing the same thing. At the time he was the District Coordinator for Nuku and so the cheque was made out to him for distribution to other LLG’s, as has been the practice in past years.

6. In cross examination the witness agreed that Samson Krapp was a volunteer District Coordinator for Nuku and he has submitted for funds for similar activities previously and provided acquittal reports for them also. When suggested to the witness that since Nuku LLG funds were deposited into the accused’s account he was unable to withdraw large amounts for distribution during that period in question, the witness said, that difficulty was overcome by the cheque been raised two weeks prior to 1^st December 2011. Furthermore cheque clearance letters accompanied the cheque written by the witness to the Banks to facilitate easy payment of proceeds. He said if there were difficulties in the honouring of the cheque he was not aware of such and none reported to him. When questioned that due to geographic isolation of the Nuku LLGs the accused was unable to deliver the funds to them in time for the celebration and submit reports, the witness said none of those difficulties experienced by the accused were brought to his attention. In any event if they were so, the funds were supposed to be with him and handed over to the respective LLGs who missed out but that was not to be so. He did not give them their share of monies as allocated. Again when suggested to the witness that Nuku Committee was unable to submit acquittal’s because they were not familiar with acquittal processes, the witness said if that was the difficulty they were facing, such difficulty was not brought to his attention, saying Samson Krapp should know better.

7. In re-examination the witness said LLGs did not have Committees but were classed as stakeholders as they were the best groups to disseminate the HIV/AIDS message to the masses. There was no such group called Nuku HIV/AIDS Committee. The witness said Samson Krapp never approached him regarding experiencing difficulties in accessing monies from his account, He said he wrote letters accompanying the cheque to BSP Bank Manager to facilitate cheque clearance. He said this was his first time to hear about bank clearance difficulties experienced by Samson Krapp in Court.

8. Rosemary Wunum is a Health Promotion Officer based in Yangkok LLG area and some of her responsibilities include carrying out HIV/AIDS awareness activities in her District every year. In October 2011 all four LLG nominated responsible persons travelled into Vanimo and submitted their programmes and plans for funding to celebrate 2011 World HIV/AIDs day. As the celebration dates grew close she became anxious and called to enquire about the outcome of their applications. She was told by Symphorian Sumun that a sum of K12, 500 had been raised and given to the Accused to distribute to all LLG’s. On 23^rd November 2011 she established contact with the accused who requested for quotes to be obtained. The witness travelled to Wewak on 24 November 2011 to meet the accused but returned home two days later without seeing him. When she finally made contact with the accused again she was told to go and wait at Nuku as he was travelling via Kitawali.

9. On 1^st December 2011 the witness accompanied by the Provincial HIV/AIDS Technical Officer travelled to Nuku to investigate the matter but returned without any monies because the accused could not be located or their phone calls never responded too by the accused. The witness said since they had incurred expenses in anticipation of the budgeted monies from the accused all liabilities were returned to Symphorian who settled all bills. The witness said the planned activities for her LLG were aborted whereas Rodney Tara conducted his activities on credit.

10. The witness further testified that no World Aids Day activities were carried out in Nuku Central however was told that the accused ran activities in his village Namblo. She said from 2011 to 2016 no funds were ever received from Samson Krapp for her planned activities in 2011.

11. In cross examination the witness admitted not knowing how funds were used by the accused. When suggested to her that the accused was on his way to Numblo village via Nuku the witness said she was told to meet up with the accused at Nuku as he said he was already there. She said her report including the liabilities incurred was sent to the HQ at Vanimo to Mr Symphorian.

12. Witness Rodney Tara is the leader of his Theatre Group from Ningil village in Nuku LLG. His Theatre group has been in the business for 9 years and had been involved in The HIV/AIDS awareness program all those times. In 2011 he submitted for funding assistance from Sandaun Provincial Aids Council through Nick Saren (SPAC) and was promised K3, 500. His group’s share of monies were paid in one cheque into accused account however none of those monies ever reached him. Although the accused promised him his share of monies via purchase of material his group never received those materials. This led to him filing a complaint to SPAC through Ricky Sareng. The witness said he however ran his activities from 24/11/2011 to 4/12/2011 from affiliation fees. His liabilities were later settled by SPAC with the release of new funds.

13. In cross examination the witness maintained that some liabilities were incurred and funded from fees collected. When suggested to the witness that he never gave that story to Police the witness said he did not think it necessary at the time. (suggestion of prior inconsistent statement). His written statement was successfully tendered into court forming part of state evidence. Marked exhibit 13.

14. Witness Ricky Saren – Technical Officer HIV/AIDS with Sandaun Provincial Aids Council (SPAC) for 11 years. He testified that with the onset of 2011 World Aids Day celebration 4 Stakeholders from Nuku LLG made submissions for funding support to carry out HIV/AIDS related awareness and prevention activities. A total of K12, 500 was requested for and allocated to the four LLG district in Nuke with Nuku Central K4, 000, Maimai Wanwan K1500, Palai K3, 500 and Yangkok K3, 500. All monies were raised in one cheque made payable to Samson Krapp as their Coordination to distribute to the respective stakeholder leaders. Upon the accused insistence that he would be trusted to disburse those monies to other LLG leaders the cash cheque was made out to him and deposited into his private bank account. Upon receiving numerous complaints from those LLGs of not being given their share of monies he set out to Nuku to investigate on 3/12/2011. The accused could not be located so he returned to Vanimo. Rosemary and Tara never received their share of activity monies. The witness said of the K12, 500 advanced to the accused only Jacob Woflo submitted his acquittals for the use of his group’s share of K1, 500. Samson Krapp never submitted any acquittals report for Nuku Central as the responsible person to receive those monies. There were no acquittal from Palai and Yangkok.

15. In cross examination it was suggested to the witness that had he visited Namblo village he would have witnessed HIV/AIDS carried out in that village that day, the witness said without any formal acquittals he was unable to say if activities took place at Namblo.When suggested to the witness that Nuku Central activities were coordinated by a Sub Committee headed by the accused the witness said to his knowledge the accused was the Coordinator for all 4 LLGs. He only headed a cultural group from his village, the Wakai Theatre Group. When further suggested to the witness that although the cheque was cleared for payment the accused was having difficulty accessing lump sum payment due to Vanimo BSP Bank Branch cash flow problems at the time, the witness said no such complaints were brought to his attention for him to assist the situation.

16. The accused gave testimony that he was part of Nuku Central World Aids Day Committee and submitted their activity plans for funding from SPAC in Vanimo. He said at the outset that he had no intention to steal those monies but was out to carry out HIV/AIDS awareness to the masses at Nuku. He said unbeknown to him the three LLG Districts (Palai, Yangkok Maimai Wanwan) had also applied for funds from SPAC. He received K12, 500 from Vanimo and deposited it into his account but faced difficulties in withdrawing large cash amounts over K2,000. He said he reported the difficulties experience to the Technical Officer Ricky Saren. He used half of the money for mobile banking and kept the other half for safe keeping. K1, 500 was given to Jacob Woflo. He retained Yangkok, Nuku and Palai funds totalling K2, 100. From their share of monies he purchased material and goods for their respective planned activities for instance balls, nets, gifts, whistles etc., K3, 000 was used for the hire of a motor vehicle to transport his committee members to and from Vanimo.

17. He said due to bad weather conditions and the rough terrain he could not make it to Nuku Central, Palai and Yangkok to deliver their monies and supplies in time for the 1^st December 2011 World Aids Day celebrations. He only reached Namblo village and commenced activities from 9am onwards adding that it was not a must for celebrations to be staged at Nuku Station. He said he used his discretion and used funds designated for Yangkok and Palai at Namblo village. His attempts to get his Nuku Committee to keep and provide receipts of expenditure to him failed as no such receipts were kept or lost, hence any chance of proper acquittals went begging. Furthermore his transfer out of Nuku to Amanab Primary School made matters worse. He was eventually terminated from his teaching job and cited for holding down two jobs. The accused admitted that no acquittals were made to SPAC because his Nuku Committee failed to keep receipts and records on his behalf, which lead to his eventual arrest and indictment.

18. In cross examination the accused admitted to using various amounts of monies for hire of vehicles, phone banking and material and used his discretion to use funds designated for Palai and Yangkok, He said he used his discretion as the District Aids Coordinator and used those funds. He admitted receiving K12, 500 from SPAC for distribution to the three other LLGs. He admitted that he did not get authorization from Symphorian to divert Yangkok and Palai allocation of K7, 000 for other purposes. When suggested to the accused that by the time he left Vanimo Town for Nuku, he did not have any money left on him to which he said he did have some money on him. The accused said Ricky Sareng lied to Court when he said he received no such complaint from him. He also said Symphorian also lied to Court. He admitted that he was unable to produce receipts for all those monies he used.

19. Alois Ambo is from Namblo village. He gave testimony of witnessing HIV/AIDS activities in his village attended by nearby villages and the community starting from 9am onwards and ending at 4 pm that day. On 1^st December 2011. After the activities all villagers returned to their homes.

20. Ms. Renatta Yayabu for the accused submitted that the State has failed to prove the element of “dishonesty” and called for her client to be acquitted. She further submitted that inconsistences in State evidence in part must be treated as serious. Ms Yayabu submitted that dishonesty was a state of mind and failure to produce evidence to substantiate was fatal. The cases of The State v Gabriel Ramoi and Kindi Lawi was referred to the Court in support of her arguments. She argued that it was not enough for Court to solely rely on non-acquittal of funds to find criminal culpability.

21. Mr. Paul Tusais for the State submitted that elements No. 2 & 3 of the Charge easily made out solely on accused admissions. He submitted that element 1 manifested itself with strings of lies and deceit when he continuously evaded named recipients, Rosemary and Rodney from receiving their allocated funds. Rosemary Wunum representing Palai LLG was the most cheated and was put to great hardship in her quest to get her funds to run her program. Obviously at great hardship and expense: She was promised her funds in Wewak, which did not eventuate, she was promised her funds in Nuku which did not eventuate. Mr Tusais submitted that the inconsistence cited by Defence Counsel were insignificant and should have no bearing on this case. He submitted that State Witness were truthful witnesses as opposed to Defence Witness who were not believable.

22. World Aids Day is commemorated on 1^st December every year. In 2011 West Sepik Province invited stakeholders from Nuku, Yangkok, Palai and Maimai Wanwan LLGs to commemorate this yearly event in their respective districts with funding support from Sandaon Provincial Aids Committee Secretariat in Vanimo. From here on (SPAC). A total of K12, 500 was approved and deposited into the private Bank account of their acting Coordinator at the time Mr. Samson Krapp. Each LLG was allocated funds as follows: Nuku Central K4,000; Yangkok K3, 500, Palai K3, 500, Maimai Wanwan K1, 500.

23. The accused contends that he did not misappropriate K12, 500 to his own use or to the use of other persons nor did he have any intention of stealing that money. Both National and Supreme Courts have given adequate treatment on the element of dishonesty in Section 383A cases of Misappropriation. In the Supreme Court case of Lawi v The State [1987] PNGLR 183, The State v Baine [1990] PNGLR 1 and The State v Gabriel Ramoi [1993] PNGLR 390, the word dishonesty has been given its plain ordinary dictionary meaning of “intended to cheat, deceive or mislead”. The Courts have held that dishonesty in s. 383A relates only to the state of the mind of the person who does the act which amounts to misappropriation. Having acknowledged that proportion of case law, I shall endeavour to canvass the evidence before me to determine whether or not the property so applied was dishonestly applied.

(a) Is it true that Samson Krapp was having great difficulty is withdrawing large amounts of money over K2, 000 from BSP Bank Vanimo?

He contents this position to be so hence his inability to facilitate withdrawals on time to be distributed to their respective LLGs in Nuku.

The evidence before court shows that within four days from 17^th- 21^st November 2011 he had in his possession K9200 cash from Vanimo Branch ATM cash withdrawals. (State Exhibit 12- Bank Statement). Furthermore within two days from 22^nd – 24^th November 2011 the accused had K3000 cash on him from the similar process. Ideally by then, he would have in his possession a total of K12, 200, sufficient amount to distribute to the three stakeholders in Nuku in plenty of time before World Aids Day celebration on 1^st December 2011.

It follows that he was not telling the truth and was dishonest in his dealings. Presumably withdrawals of lump sums of money over the counter may be difficult as he contends at any one time but the fact remains true that by 24^th November he had K12, 200.00 cash in his possession or so he should. None of those monies were ever received by their intended stakeholders. Instead they were deceived into obtaining and submitting quotes for material and sports equipment not honoured by the accused.

Inferentially therefore it is open to this Court to infer that his actions amounted to deceit and calculated to cheat the three stakeholders hence misappropriation manifested.

24. The evidence before Court shows that two of the stakeholders from Yangkok and Palai never received their allocated funds of K3, 500 each from the accused. The accused admitted that to be so in his evidence. The accused used his discretion and diverted their funds on World Aids Day celebrations in his own village Namblo including the hire of a motor vehicle and paying for mobile credit facilities.

25. Inferentially therefore it is open to this Court to infer that the accused Samson Krapp dishonestly applied the monies intended for Palai and Yangkok to his own use. In the absence of any evidence to the contrary I find that the accused misappropriated those allocated monies.

26. Defence assertion that the accused did not misappropriate the said monies as such monies were used on World Aids Day celebrations in his Namblo village. Only one witness was called in support. I did not find the witness to be truthful. Although the evidence he gave was very brief, he could not remember the events and was reading his notes from the palm of his hand. Evidence before Court shows that no celebrations were staged either in Nuku Central or at Yangkok LLG. Furthermore in the absence of any reports and acquittals from those two LLG’s including the supposed celebrations at Namblo village the accused’s evidence remains wanting credibility and open to speculation and of recent invention. Inferentially therefore I have no reason to doubt in my mind that no celebrations were held at Nambol village. If indeed there were some truth in his evidence of celebrations at Nambol village, the use of funds designated for other LLG’s in my view initself amounts to misappropriation, anyway. The bottom line is that Nambol village or community was not included in the HIV/AIDS Response Activity Planning Form (Exhibit 9) for which funds were allocated and released. Designated funds requested for and released for specific activities used elsewhere amounts to misappropriation in my considered view. The accused intended to cheat or deceive SPAC hence his actions amounted to dishonesty and he must as a matter of law be held accountable for his dishonesty and misuse of property.

The accused contends that his Nuku HIV/AIDS Committee with its Chairman was tasked with keeping records of expenditure and subsequent acquittals through him. He contends that he was unable to file a report and acquittals to SPAC because some of his receipts were lost and not accounted for by his committee. Furthermore his transfer out of Nuku to Amanab made it difficult for him to file acquittals.

27. Notwithstanding the accused’s difficulties explained above he received the K12, 500 in good faith in his capacity as the acting Coordinator for all for LLGs in Nuku. It follows that he must account for all those expenditures and none other. Shifting blame and responsibility to others around him will not discharge him of that obligation. He collected the money and it is he who must account for how that money was spent, come rain, hail or storm, period. Under normal circumstances all four stakeholder representatives named in the Requisition for Expenditure – (Court Exhibit 7,) must also provide reports and acquittals to SPAC. (Rosemary Wunum, Rodney Tara and Maimai Wanwan). Except for Maimai Wanwan, Rosemary Wunum and Rodney Tara have nothing to acquit for, save their reports and liabilities they incurred. The accused was the named stakeholder representative for Nuku Central with an allocation of K4,000. He has not provided a report of produced any acquittal for that LLG.

28. The evidence before Court shows that all except Samson Krapp filed his report or acquittals to SPAC. In the absence of any form of report on how the monies were spent and acquittals as is required of him it remains open to this Court to infer that Samson Krapp dishonestly applied to his own use and use of others funds intended for Yangkok and Palai LLGs. These two LLGs were left high and dry without conducting their planned activities in commemorating Word Aid Day.

(e). Does the accused have any authority/discretion to use designated funds elsewhere?

29. The accused contends that he used his discretion to divert Palai and Yangkok LLG funds totalling K7, 000 for other purposes. He reasoned that it was not mandatory for celebrations to be stage at Nuku Central. He conceded that it was wrong and he did not get approval from SPAC to divert funds for the original intended purpose.

The evidence before Court shows that he did not request for nor was given permission by SPAC through Symporian Sumun to use Palai and Yangkok funds elsewhere.

Inferentially therefore it is open to this Court to infer that the accused without authority misappropriated funds designated for Palai and Yangkok.

(f). Did Samson Krapp intend to cheat, deceive or mislead SPAC into believing that the K12, 500 paid to him was properly used and accounted for?

The accused contends that he had no intention of stealing the monies entrusted to him. His intention was to disseminate HIV/AIDS information and awareness to the people of Nuku Central.

The evidence before Court shows that no activities were carried out at Palai, Yangkok and Nuku LLG area due to their allocated fund not given to them by Samson Krapp. He deceived or misled the stakeholder leaders from those areas that he would purchase their material and goods if quotes were obtained and given to him. None of those promises were honoured or material including sporting equipment purchased for the stakeholders. Palai LLG stakeholder leader Rosemary Wunum was given the run-around in search of her activity monies by the accused to no avail. Instead she was left only with liabilities which were later settled by SPAC.

Inferentially therefore it is open to this Court to infer that the accused without authority misappropriated funds designated for Palai, Yangkok and Nuku Central LLGs.

(g). Did the three (3) LLGs in Nuku also applied for funding support from SPAC?

The accused contends that he was not aware that Palai, Yangkok and Maimai Wanwan LLGs also had activity plans similar to Nuku Central. Jacob Woflo from Wanwan Maimai submitted his activity plans without his knowledge.

However the evidence before Court shows that Palai and Yangkok LLGs activity plans were drawn up on their behalf by the accused and submitted to SPAC under his signature in the form provided for that purpose. (Exhibit 9).

The only probable inference to be drawn from his contention was that since Nuku Central LLG was the only LLG who submitted its activity plans only Nuku Central was entitled to use those funds earmarked for Palai and Yangkok. In my considered view his misuse of funds under those circumstances amounted to deceit and dishonesty. The accused prepared those activity plans and submitted them to SPAC, naming Palai, Nuku and Yangkok as recipients of funds to run their planned activities in their respective districts. His lame excuse of not being aware in light of glaring documentary evidence considered misleading with intent to cheat SPAC.

Inferentially therefore it is open to this Court to infer that the accused Samson Krapp’s action were deceitful, misleading and dishonest. He must be held responsible for his misdeeds.

(1) A person who dishonestly applies to his own use or to the use of another person—

32. Now applying the principal law and case law to the facts before me I find that there is sufficient credible evidence before Court supported by the accused’s admissions of misappropriating property for his own use and to the use of others cash totalling K11, 000, property belonging to The State through its agency The SPAC in Vanimo proven beyond reasonable doubt. Elements 2 and 3 successfully made out.

Similarly element 1 is easily made out in that although he knew it was wrong to use funds intended for other LLGs he went ahead and used those monies. Using your own words, “you used your discretion”, which you did not have and was not authorised to do so. All evidence before Court shows that your actions from the time you received that K12, 500 to the day World Aids Day was celebrated in Sandaun Province were deceitful, evasive and dishonest. Given the set of facts and circumstances against the ordinary and reasonable men’s test, I am satisfied beyond reasonable doubt the Samson Krapp dishonestly applied a total of K11, 000.

Furthermore in your own words “you have been in this business for 4 years and quite familiar with requirement for reporting and acquittal after the events”. Although you knew the consequences of your actions you continued on doing what you knew was wrong until your were found out and charged.

33. Due to the foregoing reasons I confirm a verdict of guilty against you on one count of misappropriating K11,000 the property of The State of Papua New Guinea contrary to action 383A (1) (a) of the Criminal Code Act as amended and convict you accordingly.

You are now a prisoner of the State and as such I order that your bail will be revoked and you will be placed in the custody of the State at the Aitape CIS pending your sentence.

Orders accordingly
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused

National Court of Papua New Guinea

State v Krapp No.1 [2016] PGNC 287; N6492 (22 September 2016)