N7359

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 82 & 142 OF 2018

THE STATE

V

JOHN APIAK & STEVEN WAI

Waigani: Miviri AJ
2018	   : 16th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation s383A CCA – no case submission – reliance on second leg – evidence lacking in weight – primae facie  – no evidence of dishonesty – discretion to stop case – exercised in favour of accused – no case upheld –acquitted discharged – bail refunded forthwith.
Facts
Both accused were charged that they dishonestly applied to their own use K17,600.00 property of another.

Held
Primae facie accused not dishonest.
No Case to answer by both accused.
Both parties acquitted and discharged.
Both accused’s Bail refunded forthwith.

Cases: 
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287; [1983] PNGLR 287 
The State v Avini [1997] PNGLR 212 (15 July 1997)
The State v Francis Natuwohala Laumadava [1994] PNGLR 291
The State v. Paul Kundi Rape [1976] P.N.G.L.R. 96 

Counsel:

H. Roalokona, for the State
J. Kolowei for the Defendant S. Wai
W. Dickson for the Defendant J Apiak
		
RULING NO CASE
17th July, 2018
1.	MIVIRI AJ: This is the ruling on an application that both accused have made after closure of State case that they have no case to answer, and that they were not dishonest primae facie of the charges they face.

Facts

2.	John Apiak was the owner of the Australia New Zealand bank account number 0012682398 where on the 4th July 2012 K 8,800 was deposited into it by a transfer Order Authority debiting the account of John Swire and Sons (PNG) Limited crediting into a number of other accounts one of which was of the accused. Again on the 18th July 2012 K 8,800 was credited into his account from John Swire & Sons whose Westpac account was debited. John Apiak together with Steven Wai used the money K 17, 600 belong to John Swire & Sons Limited.

3.	Both John Apiak and Steven Wai are charged that they between the 1st day of July 2012 and the 31st day of July 2012 at Port Moresby in Papua New Guinea dishonestly applied to their own use or to the use of others K17, 600.00 the property of John Swire & Sons (PNG) Limited. Which is laid contrary to Section 383A (1) (a) of the Code.

4.	No issue is taken that the money went into the ANZ bank account of the accused John Apiak and was used by Accused. Steven Wai denies use of that money and also that he was dishonest.

No Case Submission

5.	At the closure of the State case the defence has made a no case submission relying on the  State v. Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287; [1983] PNGLR 287 (14 September 1983).  In particular contending and invoking the second leg of Roka Pep’s case that there is no evidence of dishonesty, alternatively there is discretion in the judge to stop the case primae facie that the evidence is insufficient so lacking in credibility that no reasonable tribunal would lawfully convict on it. That even if the accused were called to give evidence it would not improve the state case any more than what is now.

6.	This is a question of law not fact, the underlying principle that a man can only be tried once for his crimes not twice. And therefore the evidence led is only weighed once not twice. I am not weighing the evidence but considering the application made primae facie on the face as it were as to dishonesty. Because the evidence primae facie of application to own use and to that of others is there and the accused would be lawfully called to answer if that was the only element of that charge. But no there is also the element of dishonesty which is the basis upon which this application is sought for the discretion of the court to stop the case.

State evidence 

7.	The state evidence tendered were;

(i)	Exhibit S1 Standing Order Authority dated the 3 July 2012. Remitter was John Swire & Sons Limited Beneficiary was John Apiak and the value was K8, 800.00.for container refund.
(ii)	Exhibit S2 transfer warrant 689812 dated the 18th July 2012 for the sum K 8, 600.00
(iii)	Exhibit S3 was John Swire & Sons (PNG) Limited account number 2128687 statement for the period ending 29th June 2012 where it showed transfer to ANZ account 0012682398 K 8, 800 on the 3rd July 2012 and again on the 17th July 2012 also K 8, 800.
(iv)	Exhibit S4 was statement of Account of John Swire & Sons (PNG) Limited showing on the 12th September 2012 refund s/o fraud in the sum of K353, 200.00.
(v)	Exhibit S5 was a letter dated the 17th July 2014 addressed to Timothy Gitua signed by Joseph Sumanop Manager Legal of ANZ in response to a search warrant served at the bank and attaching documents for collection.
(vi)	Exhibit S6 was the search Warrant itself dated the 18th March 2014 for copies of bank account statements as of 1st July 2012 to the date of the execution of the warrant of customer account John Apiak number 0012682398.
(vii)	Exhibit S7 was account signatory for John Apiak
(viii)	Exhibit S8 was National Parliament identification card issued of John Apiak expiring on 31 December 2013.
(ix)	Exhibit S9 was Westpac Bank (PNG) Limited transfer order 689089 in the sum of K8, 800.00 dated the 3rd July 2012. Customer was John Apiak and the particulars 
(x)	Exhibit S10 was Interim Statement of accounts statement dated 25th June 2014 of the account 12682398 belonging to John Apiak accused whose account received the same amount of K8, 800.00 the money of that money and its use notably at Fortune club Gordons. Then a credit also on the 18th July 2012 and use of that money.
(xi)	Exhibit S11 is the record of interview dated the 26th January 2017 of the Accused John Apiak. He admits receipt of the money into his account but denies that he arranged for it deposit from John Swire & Sons (PNG) Limited.
(xii)	 Exhibit S12 is the record of interview dated the 15th March 2018 of the Accused Steven Wai. He admits receipt of the money into John Apiak’s account but denies that he arranged for it deposit from John Swire & Sons (PNG) Limited. Nor did he have any knowledge that he could not use the account of another person as was the case here.

8.	The State on oath called Delilah Tommarrah, Westpac Bank Investigator Risk compliance unit. She basically gave evidence confirming what is set out by the tendered evidence of the debit from John Swire & Sons (PNG) Limited in the sum of K17, 600.00 into the ANZ account of John Apiak account number as set out above. And that the documents are all set out above which she confirmed in all material particulars.

9.	Lilly Benoma paralegal officer of the ANZ bank confirmed the documents that were retrieved from ANZ before the court and details of the account of John Apiak and the warrant from Westpac to credit the account of John Apaik as set in that warrant evidenced by the two sums of K 8, 800 firstly on the 3rd July 2012 and again on the 18th July 2012 which were used by John Apiak account number as set out above. 

Issue

10.	Whether or not primae facie the accused were dishonest?

11.	The evidence of the State was that Primae facie the K17, 600.00 was derived from John Swire & Sons (PNG) Limited. And the account of that company was in Westpac Bank not in the same bank as John Apiak of ANZ. It was not established primae facie that John Apiak was the person who faxed the forged authority to Westpac to credit his account in ANZ. Or that there was evidence primae facie of a person who was assisting John Apiak to get that money from Westpac into ANZ who was acquainted with the procedures and process to get it there. Nor was it established primae facie that John Apiak had any knowledge in how banks work and could have swindled that money into his account. There is no direct evidence or other evidence in this respect except that the money was in his account. Could he be expected to know that it was someone else’s money when it was in his account primae facie.

12.	Both Accused must have knowledge of the subject documents transferring that money. The money went into the account of John Apiak he must have had knowledge that it was a fraudulent transfer into his account. That those who transferred that money were co accused of this accused. Both he and co accused Steven Wai were working with those persons to transfer that money. It is not enough to assume that he must have been a co accused of those who transferred the money into his account and therefore benefitted. Dishonesty is a question of fact and would depend on the status of mind of the accused. “And when a Judge considers the facts on how the property was applied, he uses the ‘ordinary’ standards of reasonable and honest people’ test to determine whether or not the property so applied…Dishonest is defined in the Oxford Advanced Learners Dictionary of Current English as, “intended to cheat, deceive or mislead, The State v Francis Natuwohala Laumadava [1994] PNGLR 291 at 293.”

13.	Primae facie the documents authorizing transfer must be intended to cheat or deceive or mislead authored by the accused or persons who are connected to the accused using their account to get that money there so that they can benefit therefrom. The facsimile number was located at Ori Lavi haus but not followed through as to who used that facsimile to send the authority. Machines do not operate by themselves but by human input to which they react to operate. Therefore whoever a human being operated to send that facsimile authority to debit the account of John Swire & Sons (PNG) Limited must be located or evidence obtained to connect his role in the crime with the accused. By themselves and the fact of the money deposited without the hand of the accused to move it from the Westpac account of John Swire & Sons (PNG) Limited account into his account makes dishonesty primae facie not set out to call both accused to answer the charge laid against them here. If the forgery of the authority is by the Accused handwriting evidence is not there to confirm or deny this fact. And whether these persons were connected to the accused before the court there is no evidence at all after closure of the State case.

14.	What the State pins its case on is that accused must have known he did not earn that kind of money and his failure not to alert the bank of that fact was that he was dishonest and therefore dishonestly applied it to his own use a crime. Primae facie State evidence is likened to blood on the hands but whether it is animal blood or human blood and if the latter is it the blood type of the deceased has not being linked so as to pin down the accused as the murderer. Even without the accused going into evidence he would be convicted lawfully of the charge laid. That is not the case here.

15.	The burden is on the state and not on the defence to prove its case. The latter did not have to prove that they were innocent. It was the state who had that burden in law. They could not leave it and say it was money belonging to John Swire & Sons (PNG) Limited in the account of the accused and therefore Accused must have forged the authority or conspired with those who had that money warranted by that forged authority there. He has a case to answer by that fact.

16.	Even with the accused giving evidence it would still have not improved because it remained to be seen how that K17, 600 went to an ANZ account not within Westpac but out of it into another bank by an authority held in Westpac authorizing transfer into an account in ANZ of a private individual who did not or had any business with John Swire & Sons (PNG) Limited. Not only this private individual accused but also others to the compound fraud value K353, 200.00 exhibit S4 12th September 2012. Has it been laid primae facie that the accused are part and partial of this well organized group involved in this fraud.

17.	There is no evidence of the sighting of John Apiak or Steven Wai with the person or persons who allegedly faxed that fraudulent authority from the Chinese shop in Ori Lavi Haus leading to the deposit into his account and from which he benefitted. This facsimile number should have been followed to lead to the persons who authored and to establish their relationship with the accused now before the court so that a relationship was established of criminal conspiracy to defraud and to misappropriate money belonging to another in another bank diverted in this way by fraud. That is not the case here and therefore there is no other alternative except to accept the application and rule that accused’s have no case to answer. 

18.	Both John Apiak of Toto, Bogia, Madang Province and Steve Wai of Tambunum village, Angoram East Sepik Province have no case to answer that they between the 1st day of July and the 31st day of July 2012 at Port Moresby dishonestly applied to their own use or to that of others K17, 600.00 the property of John Swire and Sons (PNG) Limited.

19.	Accordingly a not guilty verdict is returned on the Indictment and both accused are discharged forthwith. Both their bail moneys are ordered to be refunded forthwith. They are discharged of all obligations in law relating forthwith.

Ruled Accordingly
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant