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State v Mose [2018] PGNC 284; N7361 (12 July 2018)

N7361

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 32 of 2018

THE STATE

V

GIRIGI GOASA MOSE

Waigani: Miviri AJ
2018 : 10 & 12 July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation – application admitted – dishonesty denied – complainants not on land – no title documents exchanged – State discharged proof – dishonest application – guilty misappropriation s383A CCA.

Fact

Accused received K120, 000.00 from the complainants for the sale of her land. Complainants did not receive title to the land or the land. It was sold to three other persons. Complainants were never refunded K120, 000.00.

Held

Dishonesty established
No entitlement to money.
Guilty of Misappropriation

Cases:

The State v Francis Natuwohala Laumadava [1994] PNGLR 291
The State v Kavo [2015] PGSC 48; SC1450
The State v Lawi [1987] PNGLR 183.
The State v Liriope [1990] PGNC 58; N916
The State v Rokpa [1994] PNGLR 535;
The State v Yaip Avini [1997] PNGLR 212
21 ILGS Gobe Project Area Incorporated Land Groups v Imawe Bogasi ILG [2006] PGNC 83; N3096

Counsel:

L Jack, for the State
M Baida, for the Defendant

VERDICT

12^th July, 2018

1. MIVIRI AJ: This is the verdict of a woman charged with dishonestly applying to her own use K120, 000.00 the property of another JDM Limited.
   

Facts on Arraignment

2. Accused represented to Mr and Mrs Dutallas who ran their business called JDM Limited that she was selling customary land at Taurama known as Odahara Portions 2763c-2765c and that she was doing so with her family and was looking for a buyer. They met in November 2009 at the Aviat Club Port Moresby. The Complainants agreed to purchase it for K150, 000.00 after seeing all the land documents provided by the accused. On 13^th November 2009 the Complainants paid part payment of K20, 000.00 in two cheques to the Accused as first payment for the land. The second part payment was made of K5000.00 on the 18^th December 2009. On the 18^th November 2010 the Accused informed the Complainants that her family had agreed and decided to increase the original price from K150, 000.00 to K275, 000.00. The third part payment was a cheque of K50, 000.00 given to the Accused on the 19^th November 2010. On 22^nd December 2010 fourth part payment was K10, 000.00 also given to the Accused. The fifth part payment was cheque of K10, 000.00 made on the 5^th January 2011. The sixth part payment given to the accused was K20, 000.00 in cash on the 13^th January 2011. The seventh part payment K5000 was made on the 11^th February 2011 which was the last payment made by the Complainants after which they stopped when they discovered accused was selling that same piece of land to other purchasers as well. It is occupied by another person so they asked the accused to repay their money as Accused has never given them the land since 2011 up to today.
   

Charge

3. The charge is pursuant to section 383A misappropriation of the Criminal Code which reads;
   

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

(a) Property belonging to another; or
(b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years-

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust. Direction or condition;

(d) where the property dishonestly applied is of a value of K2000 or upwards.

(3) For the purposes of this section-

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property;

(b) a persons application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;

(d) persons to whom property belongs to include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who. Immediately before the offender’s application of the property, had control of it. “

Elements

4. The elements of Section 383A Misappropriation are; - (a) dishonesty; (b) application of the said property to her own use or that of another; and (c) property belonging to another: Lawi v The State [1987] PNGLR 183. 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.”
   

Evidence

5. The State evidence comprise the following tendered by consent and marked exhibits in the case;
   

(i) Exhibit S1 letter dated 12th November 2009 written to Mr and Mrs Dutallas by the accused for the sale of the land described as portion 2764c Taurama Road NCD for the selling price of K150,000.00. The letter is headed selling half of Odahara land. It uses the term that, "We the Goasa Mose Family of Dubara Idibana Clan have come to the final agreement to give you half of Odahara land for you and your family to run a business. ...........The one half of the land shall be 0.969 hectare and is evidenced by the attached copy of the GPS survey carried out by Steven Lumis of the Lands Department. Here enclosed are the signatures of the Goasa Mose Family and Dubara Idibana Clan Chief who has agreed to the deal that we have made.
Mr Boio Doriga (chief)
Mr Arutu Goasa (2nd Born)
Mr Toripe Goasa (3rd Born)
Mr Ioa Goasa (6th Born)
Mr Rabura Goasa (8th Born)
And the letter is signed by the Accused Girigi Goasa Burke as (Secretary)

(ii) Exhibit S1 (a) Certificate of Recognition of Incorporated Land Group (INC) is attached to this letter.
(iii) Exhibit S1 (b) Court Order from the Waigani District Court dated
the 11^th March 2008 is also attached to this letter.
(iv) Exhibit S1(c) Statutory Declaration dated the 9th September 2010 made by Ava Madi Geita of Vamaga Clan confirming the accused Girigi Goasa as a member of the Goasa Family initiating the registration of the land Odahara which was given to Dubara Idibana clan by Vamaga clan.
(v) Exhibit S1D is application for registration dated the 7th January 2011 under section 7 Goasa Mose Family of Kirakira village applying for registration of Portion 2763c-2765c Odahara Taurama.
(vi) Exhibit SE is history of Odahara signed by the accused.
(vii) Exhibit S2A & 2B are 2 Westpac Bank PNG Limited cheque dated 13th November 2009 first to Steve Burke as payee and cash both in the amount of K10, 000.00 a total sum of K20, 000.00.
(viii) Exhibit S3 is a letter dated the 13th November 2009 to the Dubara Idibana Land Group attention the Goasa family evidencing receipt of payment of first part payment of K20, 000.00. Signed by accused as seller receiver and the Dutallas Mr and Mrs as purchasers witnessed by Arnel Gadi.
(ix) Exhibit S4 is a letter dated the 2nd December 2009 written to Mr and Mrs Dutallas asking for some money to clean land Odahara by the accused subject is K 5000/K10, 000-Goasa Mose Family. Accused signs the letter.
(x) Exhibit S5 is a letter dated the 7th December 2009 addressed to the Dubara Idibina Land Group by Mr and Mrs Dutallas, subject Land clearing at Odahara-Goasa Mose family. Responding to the request for Christmas money exhibit S4 that any financial assistance will be added to the deposit for the land. That there are no funds to commit there. It is signed by both Mr and Mrs Dutallas.
(xi) Exhibit S6 is a letter dated the 18th December 2009 written by Mr and Mrs Dutallas to Dubara Idibana Land Group subject is second partial payment of Odahara Land DIL Group Group Inc. Ltd. It is for the sum of K 5000 and is signed by Seller receiver Girigi Goasa Mose and Purchaser Mr and Mrs Dutallas witnessed by Arnel Gadi.
(xii) Exhibit S7 is a letter dated the 16th January 2010 written by Dubara Idibana Land Group to Mr and Mrs Dutallas subject is Agreement with the Contract- Parua Lawyers. The letter is signed by accused as secretary and her second elder brother Aruta Goasa advising that "Ms. Girigi Burke has organized the lawyer which is Parua Lawyers and the lawyer has written our contract already and it has been with her since December 2009."

(xiii) Exhibit S8 is JDM limited letter dated the 19th November 2 subject is third part payment of Odahara Land-DIL Group Inc. LTD. The sum paid over is K50, 000.00 and the accused Girigi Goasa Burke acknowledges receipt by her signature on the one side and Mr and Mrs Dutallas on the other witnessed by a witness unnamed.
(xiv) Exhibit S8A is JDM Limited payment voucher of that K50, 000.00 paid to Girigi Goasa dated the 19th November 2010.
(xv) Exhibit S8B is the Westpac Bank PNG Limited cheque dated the 19th November 2010 in the sum of K 50, 000.00 paid to Girigi Goasa.
(xvi) Exhibit S9 is JDM letter dated the 22nd December 2010 subject is fourth part payment in the sum of K 10, 000.00 received by the accused Girigi Goasa Mose seller receiver who signs to that effect and Mr and Mrs Dutallas as purchaser and a witness signing to that fact.
(xvii) Exhibit S9A is JDM voucher in the sum of K 10,000.00 dated 22nd December 2010 of that payment for land.
(xviii)Exhibit S9B is the Westpac Bank PNG Limited cheque dated the 22nd November 2010 in the sum of K10, 000.00 pay Girigi Goasa Burke.
(xix) Exhibit S10 is letter dated the 6th January 2011 from JDM Limited to Dubara Idibana Land Group subject is fifth part payment of Odahara land in the sum of K10, 000. 00 for which the accused has signed Girigi Goasa Burke as seller receiver and Mr and Mrs Dutallas as purchasers also a witness.
(xx) Exhibit S10A is the payment voucher of JDM dated the 6th January 2011 for the sum of K10, 000.00 paid to Girigi Goasa.
(xxi) Exhibit S10B is the ANZ bank cheque in the sum of K10, 000. 00 dated the 6th January 2011 paid to Girigi Goasa Burke.
(xxii) Exhibit S11 is JDM limited letter dated the 13th January 2011 addressed to Dubara Idibana Land Group subject is 6th payment of Odahara land in the sum of K20, 000.00 received by Ms Girigi Goasa Burke as seller receiver and Mr and Mrs Dutallas as purchasers.
(xxiii) Exhibit S11A is payment voucher of JDM Limited dated the 13th January 2011 ANZ cheque in the sum of K20, 000. 00 paid to Girigi Goasa Burke.
(xxiv) Exhibit S12 is JDM limited Letter dated the 11th February 2011 to Dubara Idibana Land Group subject seventh part payment of Odahara land in the sum of K5000 signed by the accused Girigi Goasa Burke as seller receiver and Mr and Mrs Dutallas as purchasers.
(xxv) Exhibit S12A is JDM limited payment voucher dated the 11th February 2011 in the sum of K 5000 received by Girigi Goasa Burke.
(xxvi) Exhibit S13 is the statement of the witness Mr. Antonio Dutallas who confirms all the payments made to the accused evidenced by all the cheques vouchers letters set out above.
(xxvii) Exhibit S14 is statement of the arresting officer Bill Muagi in respect of the conduct of the record of interview with the accused.
(xxviii)Exhibit S15 is the statement of Glenda Gabe the corroborating officer in the record of interview with the Accused.
(xxix) Exhibit S16 is the record of interview of the accused dated the 20th October 2016 conducted in English with the accused.

Tale of Exhibits

6. Girigi Goasa Mose alias Burke is secretary and has the backing of all her siblings including the chief of the Dubara Idibana clan Boio Doriga to sell the land Odahara to the Dutallas. The accused makes this representation to the Dutallas prompting them to pay instalments starting from 13^th November 2009 to the last payment on 11^th February 2011 culminating to the total sum of K120, 000.00. On each occasion accused receives the payment or that the cheque is made out to her. It is therefore established beyond all reasonable doubt by this evidence that the accused has received the sum of K120, 000.00 for the purchase of the land Odahara portion 2764c. Which has not been transferred to the Dutallas despite this payment including any title documents.
   
7. Further the boundaries of the said land are not confirmed and parameters laid out identifying it with a survey plan so that the purchaser is acquainted with what they are purchasing. Vague interest is conferred by custom and lineage but what is sold is not clear. It is customary land and stating that 0.969 hectare is what is sold which is still not clear. Exhibit S1 does not make it any clearer. Even Exhibit S1A contributes further as to whether or not the accused is a member of this incorporated land group so as to establish if indeed she has authority fixed in law to sell that land Odahara. The Court order exhibit S1B shows there must be negotiation or what is sold is declared null and void. Whether or not this court order applies to the land the subject here is not clear. And whether or not the accused had authority to sell is also not clear by this court order. Because it refers to oldest surviving males of senior patrilineal line and whether or not the accused qualifies is clearly not clear here.
   
8. It would seem in all the circumstances that the accused had no authority to sell the subject land in the first place by read of this court order. Coupled with the land not specifically identified by survey grid map it would be impossible to get a title on the subject land. That is clear here because no evidence of title has been shown in court. In ordinary conveyance the property must be identified by reference to title and grid map. Customary land are now the subject of incorporation by Land Groups Incorporation Act Chapter 147, 21 ILGS Gobe Project Area Incorporated Land Groups v Imawe Bogasi ILG [2006] PGNC 83; N3096 (29 September 2006) which isn’t the case here. Therefore the authority to sell is not there. Nor the subject of the sale is not there.
   
9. It means in law the accused is falsely pretending that she has a property to sell when in fact in law she does not have. These are conditions or evidence of deceit and fraud components of dishonesty which come into it because she has now forecasted to the Dutallas that she has property to sell. Both have believed and so have paid giving sworn evidence confirming payment of K120, 000.00 but were not handed the title documents to the land, or that they moved onto it up to the date of the proceedings. The confusion is made even vaguer when two other persons are on the land presumed, Pastor Watinga and later Nelson Alina who also claim rights to be on it.
   

Accused Defence

10. In her defence accused gave evidence admitting to receiving K120, 000.00 paid for the land Odahara but said she was not dishonest. She had intended all alone to sell that land to Mr and Mrs Dutallas who did not move onto the land. They only poured gravel on it and did not fence it off. She also gave evidence that Pastor Watinga would repay money of the Dutallas and that was the agreement. She bore no fault that they were not in possession of the land.
    
11. Counsel defending apart from arriving late when the court was in session appeared unfamiliar with leading evidence for defence of the client. Simple matters like getting evidence before court in accordance with the rules of court and law of evidence were not properly accounted for. Committal evidence was not evidence before the court until considered as relevant and admissible either by consent or by compliance of the rules of evidence and court. In any case repetition of evidence did not necessarily mean that it would be considered. Credibility did not depend on repetition. Evidence would be considered only when it was drawn to court specifically general assumption did not amount to tender of the evidence intended. Counsel had a duty to the court not the other way around.
    

Analysis of Evidence

12. The situation of the accused here is likened to the case of Yaip Avini v The State [1997] PNGLR 212 (15 July 1997) where the appellant got K100,000.00 for road in Hapohandong – Makini Road but the road was never built but the defendant used the money personally.
    
13. Accused received K120, 000.00 but never handed over the title documents to the land Odahara Portions 2763c-2765c to the Dutallas since they first started paying for it on the 13^th November 2009 up to the last payment on the 11th February 2011. She has not even repaid back the K120, 000.00 to the Dutallas even up to the time matter was with the police. Pastor Watinga has no obligations with the Dutallas to square them it is the accused and she alone must square them.
    
14. Accused has given no explanation justifiable to exonerate her from criminal responsibility that she has and is in possession of K120, 000.00 not her money but of the Dutallas. Which money was given her in exchange and on understanding that she would give vacant possession of the subject land Odahara Portions 2763c-2765c which has not happened up to now. It is not the same situation as in Kavo v The State [2015] PGSC 48; SC1450 (21 August 2015).
    

Issue

15. Whether or not accused was dishonest in the application of K 120, 000.00 to her use or to the use of others?
    

Findings of Fact

16. The only finding open on the evidence that can be made is that this was money that was given for a specific purpose not executed and therefore misappropriation: Rokpa v The State [1994] PNGLR 535; State v Liriope [1990] PGNC 58; N916 (1 October 1990). Using the test of ordinary reasonable persons it is evident in my view without any doubt that the conduct of the accused was dishonest.
    
17. Given all above the elements of the charge of Misappropriation contrary to Section 383A of the Code are proved beyond all reasonable doubt against the accused. I find her guilty of misappropriation and convict her.
    
18. Verdict Guilty of Misappropriation contrary to section 383A of the Code.
    

Ordered Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Nelson Lawyers: Lawyer for the Defendant