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State v Golu [2018] PGNC 246; N7349 (19 April 2018)

N7349

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 181 of 2012

THE STATE

V

ALOIS KINGSLEY GOLU

Kokopo: Higgins, J
2018: 3, 4, 16 - 19 April

CRIMINAL LAW – Criminal Code Act 1974 s. 383A(1)(a) – no evidence of dishonesty – evidence that property did not belong to the State as alleged – verdicts of acquittal

PNG cases cited

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Gene [1991] PNGLR 33

Counsel:

Ms T. Aihi, for the State
Mr W. Donald, for the Accused

19^th April, 2018

1. HIGGINS J: In this case, the accused stands charged on two counts. The first being that between 6 April 2010 and 31 December 2010 in the National Capital District and in Kokopo, East New Britain Province, he dishonestly applied to his use and the use of others the sum of K5,577,000 belonging to the State. And secondly, between 22 July 2010 and 31 December 2010 in the National Capital District and in Kokopo, East New Britain Province, he dishonestly applied to his use and the use of others the sum of K1,000,050 belonging to the State. Going first to the question of dishonest use. That can reasonably quickly be disposed of.
   
2. The first count, according to the State case, relies upon an invoice which was submitted by Mr Kingsley under his own name or that of KEM, that is, Kokopo Earth Moving, and that invoice purported to say that there was a purchase of equipment to that value. That invoice was approved and paid. The equipment to which it related seems to have been seen in the area of the Tokua Estate and certainly the witness from NASFUND confirmed that he indeed saw it. He was not the only one who saw it, so the equipment was there. Whether it was paid for by Mr Kingsley or his company or simply purchased on the basis that it would be paid for later is not known. In either event, Mr Kingsley or his company was entitled to the value of that equipment to be paid for by the other contracting party.
   
3. Similarly, with the sum of K1,000,050 which seems to be related to pipes and other equipment purchased for the purpose of a water project. In relation to the equipment, the evidence does not disclose what has subsequently happened to it. However, in relation to the second count, the evidence discloses that the equipment was held at Rabaul Wharf and subsequently disposed of by Customs because Customs duty was not paid. Customs duty was not paid, the evidence further discloses, because of the stance taken by the State to withhold further payments in respect of this project, that is, to forbid funds, whether of the State or anybody else, being paid and they were accordingly, frozen.
   
4. In neither case, can there be shown to be any dishonest application of the monies which were received. As I have said, whether the accused received the monies in reimbursement for monies he had already paid personally or by his company or whether he still owed money but having received the money from the State has not yet discharged those debts, is irrelevant. If he has not discharged those debts, the creditors may sue and receive money. But the money he has received is his or that of his company. That in effect would dispose of the matter, but there is more.
   
5. The funds which were provided which enabled the local member at that time, Mr. Tammur, to engage the services of FinCorp, Malco, et cetera to proceed with works in Kokopo financed by Fincorp which purchased a Treasury bill in the sum of K125 million ultimately for the purpose of financing the project. That meant that FinCorp paid the K125 million to the State and received in return what purported to be a Treasury bill. It seems they got less than they bargained for because the State then proceeded to dispute the validity of that Treasury bill. It follows that FinCorp had paid K125 million to the State for a Treasury bill but the State has said it was worthless.
   
6. Monies were advanced, by what means is probably a little difficult to fathom, but in reliance on the validity of the Treasury bill, no doubt. Those monies were clearly not the property of the State. It denied ownership of them. The case of The State v Gene [1991] PNGLR 33 is a case on point. Even if the money had originally been made available by the State, if then it makes it available by grant to another person, then even if that person is obliged to account for that money and its expenditure, that money is not the property of the State. It is the property of the person to whom it was granted. In this case, by whatever means, FinCorp, Malco and ultimately the accused and his company were given those monies. Those monies did not come directly from the State and those monies were not the property of the State.
   
7. It follows that the indictment is defective in alleging that the property belonged to the State. Now, if it belonged to FinCorp, of course, it would have been open to the State to apply, or have applied, for amendment to the indictment. The State has not done that and in my view, it is now far too late for it to do so, anyway. So, for that reason, those two counts are also defective. In any event, the substantive allegation is simply not supported by any evidence. In each case there must be a verdict of not guilty in respect of the accused.
   
8. Verdict of acquittal is ordered on each count. Bail money is to be refunded to the accused.

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Public Prosecutor’s Office: Lawyers for the State
Donald Lawyers: Lawyers for the Accused