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State v Hasu [2018] PGNC 600; N8656 (12 November 2018)

N8656

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 179 OF 2018

STATE

V

TONY HASU

Waigani: Berrigan J
2018: 18^th, 21^st, 24^th September; 3^rd, 4^th, 17^th, 19^th, 26^th, October; and 9^th, 12^th November

CRIMINAL LAW– Practice and procedure – offence of misappropriation – meaning of “applied” – s. 383A(1)(a)(2)(d) Criminal Code – averment of “money” – ss. 530(6)(7) Criminal Code.

Cases Cited:
Papua New Guinea Cases

R v Magalu [1974] PNGLR 188
Brian Kindi Lawi v The State [1987] PNGLR 183
The State v Baine [1989] PNGLR 89
The State v Gene [1991] PNGLR 33
The State v Francis Laumadava [1994] PNGLR 291
Havila Kavo v The State (2015) SC1450

Overseas Cases

R v Easton [1993] QCA 255; [1994] 1 Qd R 531

Counsel

Ms T. Aihi with Mr T. McPhee and Ms W. Malo, for the State
Mr E. Sasingian, for the Accused

DECISION ON VERDICT

12^th November, 2018

1. BERRIGAN J: The accused is charged with one count that he between 9 March and 31 March 2016 dishonestly applied to his own use and to the use of others Twenty Thousand Kina (K20,000) the property of the National Capital District Commission (NCDC), contrary to s. 383A(1)(a)(2)(d) of the Criminal Code (Ch. 226) (the Criminal Code).
   

Preliminary Matter

2. Prior to delivering verdict, I considered whether there might be any apprehension of bias on my part in this case. I held that there was not. Refer to my separate decision of even date.
   

Undisputed Facts

3. It is not in dispute, and I find, that on 27 January 2016 Sergeant Barbara Kiso wrote a letter to the Governor of the National Capital District (NCD) on behalf of the police women of the Bomana Police College seeking financial assistance to attend the upcoming National Police Women’s Conference in Lae: Exhibit A.
   
4. The request was approved by the Governor and Exhibit B (Copy of NCDC Remittance Slip and related Cheque No. 006585 dated 9 March 2016 and payable to the Bomana Police College in the sum of K20,000) was issued for that purpose. The cheque was collected by the accused from Commitment Clerk, Helen Aitsi, at NCDC on 15 March 2016.
   
5. The payee of the cheque was changed from “Bomana Police College” to “Luksave Training Institution”. The cheque was deposited by the accused to the account of Luksave Training Institute on 17 March 2016: Exhibit G, page 2 (Copy of front and reverse of NCDC Cheque No. 006585 dated 9 March 2016 deposited to Account No. 7005551333 in the name of Luksave Training Institute together with Deposit Slip dated 17 March 2016). The accused is the sole director of the Luksave Training Institute: Exhibit F (Certificate of Registration of Luksave Training Institute as at 13 September 2018); and the sole signatory of its bank account: Exhibit G, page 3. K19,802 was withdrawn from the account by the accused between 17 March and 31 March 2016: Exhibit G, page 4 (Bank Account Statement for Account No. 7005551333 in the name of Luksave Training Institute for the period 29 February to 31 March 2016). The proceeds of the cheque were never provided to the police women of Bomana Police College.
   
6. The accused denies the offence and says that NCDC re-directed the cheque to pay for services provided by his company, Luksave Training Institute.
   

The State Case

7. The State called four witnesses and tendered a number of documents by consent, including those described above and the accused’s record of interview, discussed below.
   
8. The complainant, Inspector Jennifer Wakore, is attached to the Training Department of the Royal Papua New Guinea Constabulary (RPNGC) Bomana Police College. At the relevant time she was the accused’s supervisor at the college. Inspector Wakore gave evidence that on 18 April 2016 she, together with Senior Constable Collete Yaurin and Police Woman Sharon Samson, went to NCDC to follow up on the request for financial assistance. There they saw Commitment Clerk, Helen Aitsi, who told them that the request had been granted a month earlier and that a cheque in the sum of K20,000 had been collected by the accused. Ms Aitsi told her that she had released the cheque to the accused because he had said that the Bomana Police Training College account was under investigation. Inspector Wakore asked for a copy of the cheque which was provided to her and which she identified in court as Exhibit B. According to Inspector Wakore there was no such investigation into the account.
   
9. On return from the Governor’s office Inspector Wakore called the accused and asked him why he took the cheque. He apologised and said he would refund the money. He never did. She is not aware of the Luksave Training Institute. Pursuant to the Police Force Act a police officer is not to be involved in any duties or business other than police duties without approval. She is not aware of any such approval.
   
10. Sergeant Barbaro Kiso is also attached to the Training Department of Bomana Police College. She identified Exhibit A as a copy of the letter she wrote to the Governor of NCD seeking financial assistance on behalf of the police women of the Bomana Police College to attend the National Police Women’s Conference in Lae. The letter was given to the accused to be hand delivered because he said he knew people in the Governor’s office and the letter would be fast-actioned.
    
11. Sometime later in 2016, after learning that the cheque had been deposited to the accused’s account of Luksave Training Institute and before the Police Women’s Conference was held, the accused asked her to gather all the police women in the conference room at the Bomana Police College and that he would make payments. She gathered everyone and they waited but he did not attend. On another occasion the accused went to her house and asked her to go and see Inspector Wakore and tell her that his family had gathered some money and she should gather three or four women so that he could come and talk to them. She went to Inspector Wakore’s house but she wasn’t there. Earlier this year, in 2018, the accused came to Sergeant Kiso’s house and told her that he had K10,000 which he wanted to give to Inspector Wakore. Inspector Wakore told Sergeant Kiso to tell the accused to present the money in the presence of the Training Commandant. To her knowledge he never did.
    
12. Sergeant Collete Yaurin is currently attached to the Constable Training Wing of the Bomana Police College. On information provided by the accused to her children, she was picked up from her house on the morning of 1 May 2016 and taken with other police women to the airport. At the airport the accused told them that their flight had been cancelled and rescheduled to the afternoon. Sergeant Yaurin checked with the Air Nuigini ticketing office. The ticketing clerk read out the names of 9 officers who had been booked for the morning flight and told her that payment had not been made and so the flights were cancelled. She also told her that no bookings had been made for the afternoon flight. Sergeant Yaurin decided to pay for her own flight and went to Lae with another 3 officers who also paid their own fares.
    
13. Helen Aitsi is the Commitment Clerk at NCDC. She is responsible for raising all payments approved by the Governor or City Manager at NCDC. She identified Exhibit A as the letter received from Bomana Police College seeking financial assistance from the Governor. The Governor initially approved K30,000 for the purpose but reduced the amount to K20,000 due to funding constraints. Exhibit A shows that approval was granted for the police women to attend “this vital conference”. She identified Exhibit B as the remittance slip and NCDC cheque she raised in accordance with the Governor’s direction. The cheque was made payable to the account of Bomana Police College on instruction from the accused.
    
14. The accused collected the cheque from Ms Aitsi at her office on 15 March 2016. She knew him as he had been introduced to her in the first place by her superior, NCDC Project Coordinator, Mr Thomas Mawe, who has since passed away. Mr Mawe told her that the accused would follow up. Before giving the cheque to the accused, Ms Aitsi asked him why he was collecting the cheque when the letter said that it was for the ladies’ conference. The accused told her that “I am doing the admin runs on behalf of the ladies so I am the right person”. With that and the knowledge that her boss had directed her that he was the right person she gave him the cheque.
    
15. Ms Aitsi said that in the event that a cheque is raised and then has to be paid to someone else, it has to go back to the Governor or a supervisor before the cheque can be cancelled and a new cheque raised or changed to a different account name. The Commitment Clerks raise the requisitions and the Accounts Payable Division issue the cheques to the Commitment Clerks who distribute them to those following up on their payments. As a Commitment Clerk she was not aware of a company called Luksave Training Institute. She does not know what happened in this case after she provided the cheque to the accused.
    
16. Under cross-examination she said that at the time there were four persons authorised to sign cheques on behalf of NCDC as Section 32 officers under the Public Finance Management Act: the City Manager, Mr Alu; the Financial Controller, Mr Laufa; the Business Analyst, Mrs Kivali; and the Management Accountant, Ms Kupa. When contacted recently by the investigating officer about the matter she told him to write to her senior officers formally but to her knowledge he did not do so.
    
17. Ms Aitsi was shown Exhibit G, page 2. Ms Aitsi was very surprised to see that the original payee “Bomana Police College” had been changed to the “Luksave Training Institution”. She did not receive any instruction and she was not aware of any decision by her bosses to pay Luksave Training Institute. She assumes the accused took the cheque directly to her bosses but she does not know what happened after the cheque was given to the accused. According to the correct procedure, the accused should have brought any request for changes to her as the Commitment Clerk.
    
18. Sergeant Kiso, Sergeant Yaurin and Helen Aitsi all impressed me as witnesses of truth. Much of their evidence was not challenged. Ms Aitsi is a key witness in this case. She gave her evidence clearly and without hesitation. She readily admitted where matters were outside her knowledge or control.
    
19. Inspector Wakore admitted that she failed to mention in her statement that Ms Aitsi had told her that the accused had said that the Bomana Police College account was under investigation. This is a serious omission for an officer of her standing and experience. Moreover, it is inconsistent with the evidence given by Ms Aitsi, which I accept. I will not rely on Inspector Wakore’s evidence other than where it is not in dispute or is corroborated by other evidence.
    
20. Exhibit C and D, the accused’s record of interview conducted on 7 June 2018, Pidgin original and English translation, respectively, were tendered by consent. Question and Answer 13 and 14 were struck from the record of interview following a voir dire as to the admissibility of an earlier statutory declaration by the accused. Refer to my ruling of 3 October 2018. No objection was taken to the admissibility of the record of interview which was in any event conducted 6 months later and long after the threat on which I had excluded the statutory declaration had dissipated (see R v Kar Moro [1975] PNGLR 14).
    
21. It contains the following admissions:
    

“Q7. It is alleged that on the 9^th March 2016, you went to NCDC City Hall Governor’s Office and collect a Twenty Thousand Kina (K20,000.00) Cheque for Bomana Police College. What would you say to that?

Ans. Yes

Q8. After you collected the Bomana Police College cheque at the NCDC City Hall, you crossed out Bomana Police College and re-address that cheque to Luk Save Training Institute. Is this correct?

Ans. Yes

Q9. I now produced to you a copy of Deposit Slip dated 17^th March 2016, which showed that you deposited the Twenty Thousand Kina Cheque no # 006585 into your Luksave Training Institute account number # 7005551333. What do you say to that?

Ans. Yes

Q10. I now will show you a Copy of Statement of Account dated 17^th March 2016 which indicated that you withdraw Seven Thousand Kina (K7000.00) on the same day. Is this correct?

Ans. Yes

Q11. On the 18^th March 2016, you withdraw another Seven Thousand Kina (K7000). Is this correct?

Ans. Yes

Q12. I will now show you a Copy of Online Signature Image used to authorise transaction on account number 7005551333, account named styled as Luksave Training Institute. Which showed that you are the Sole Director and sole signatory to Luksave Training Institute Account. What would you say to that?

Ans. Yes

...

Q15. I have information from the Police women, that you were approached several times and promised to repay the money, but you fail. Is that correct?

Ans. Yes.

...
No Case Submission

22. At the close of the State case defence counsel made an application to have the accused acquitted on the basis that there was no case to answer. It is well established following The State v Roka Pep [1983] PNGLR 287, adopting and applying The State v Paul Kundi Rape [1976] PNGLR 96, that where there is a no case submission, the issue to be determined is whether the evidence supports the essential elements of the offence, that is whether on the evidence as it stands the accused could lawfully be convicted. It is clear from the authorities cited that the question of guilt of the accused does not arise at this stage of the proceedings. Nor does it involve the question of proof beyond reasonable doubt, which is determined at the end of all the evidence on the trial. Where the court decides that there is a case to answer, it nevertheless has a discretion to stop the case in appropriate cases; this discretion is exercisable where there is a mere scintilla of evidence or where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
    
23. Without going into merits of my decision at this stage of proceedings, having heard and observed the State’s witnesses, taken together with documentary evidence and the accused’s record of interview, it was my view that the evidence on the requisite elements to prove the charge had been made out and that the accused had a case to answer.
    

Defence Case

24. The accused, Senior Constable Tony Hasu, gave the following evidence in his defence. He is a police officer of 22 years’ standing and in 2016 was an Administrative Sergeant at the Bomana Police College reporting to Inspector Wakore as the College Coordinator and his immediate supervisor, the late Inspector Siminju.
    
25. He is the director of Luksave Training Institute, a company he registered in 2013. The purpose of the company is to provide unemployed youth with security training and empower them to obtain employment. In 2015 the company was engaged by NCDC through Project Manager, late Thomas Mawe, to train youth to man car parks during the Pacific Games. The company received allowances in cash but was not paid and submitted a claim of K24,000 to NCDC.
    
26. On 9 March 2016 Thomas Mawe rang the accused and told him his cheque was ready to be picked up. He went to Mr Mawe’s office who told him to go down and check on it. He went to the accounts section and was served by a female officer who gave him a cheque, copy of which is Exhibit B. He asked her if there was another cheque. She said “no, nothing”. He took the cheque to Mr Mawe and told him that it was not his cheque. Mr Mawe took the cheque and told him to wait. The accused got tired of waiting and left. After 45 minutes to an hour Mr Mawe called him back to the office and gave him a cheque, which he identified as Exhibit G, page 2. He took the cheque straight to the bank where he deposited it without any question from the officers. The cheque was cleared.
    
27. Other than Mr Mawe he did not know anyone inside NCDC. Further, he is not a part of the police women’s group at Bomana Police College as a treasurer or secretary, and had nothing to do with the women’s conference in 2016.
    
28. In his record of interview he answered “yes” in response to almost all questions because he was under pressure as a result of all the women at the college talking about the money. He did not ask NCDC for a handout. The money was rightfully received for the work done by his company.
    
29. Under cross-examination the accused agreed that he was aware of the letter of request to the Governor’s Office, Exhibit A, but was not aware that the police women were fundraising or that they needed financial assistance. He did not offer to assist by advising them to write a letter and did not hand deliver the letter. He did not pick up the cheque on behalf of the police women of Bomana Police College.
    
30. He did not cross out the name “Bomana Police College” or write the words “Luksave Training Institution” on the cheque shown in Exhibit G, page 2. It is his signature on the reverse side of the cheque under the words “RPNGC letter dt 16.3.16 signed by Sergeant Tony Hasu requesting change” but he did not write any letter nor do any changes. The bank officers told him to sign so he signed. He deposited the cheque to his account and was told that it was cleared.
    
31. As to why the witnesses said he would repay the money, they were desperate for him to return the money. The money was not for them. No-one would have given them money for doing nothing. As to the suggestion that he told the officers the tickets were ready for them to go to Lae, if they had money they would buy their own tickets and they were fundraising.
    
32. The money received was for training youth from Moresby North East, South and West. He did not ask for a free handout. Despite understanding the importance of keeping business records, he gave all documents in support of his claims to Mr Mawe who engaged the company and does not have a copy. The money was rightfully received and paid to service providers.
    
33. In re-examination he said that none of the crossing out, the change of payee nor the signatures above the handwritten words on the cheque were his. He responded “yes” to making the change during his record of interview because his mind was unsettled and he was under pressure from the women at the college, who were gossiping. Neither the investigating officer nor the corroborating officer put pressure on him.
    
34. Having heard and observed the accused in the witness box I am unable to accept him as a witness of truth. This is based on a combination of my assessment of his demeanour when giving evidence together with the content of that evidence. I formed the opinion he was evasive and untruthful.
    
35. His testimony departed from his record of interview in key respects. The accused is a police officer of 22 years’ standing. I do not accept his evidence that he answered “yes” to all questions in the interview because he was troubled by gossiping. Furthermore, it is clear on a full reading of his record of interview that the accused considered the responses he gave on that day.
    
36. The accused was evasive about knowing that the cheque was intended for the police women of Bomana Police College. He tried to distance himself from Ms Aitsi but then positively affirmed that Mr Mawe was her supervisor. He contradicted himself about being aware that the police women were fundraising. His evidence that he was aware of the letter of request, Exhibit A, but did not know that the police women needed financial assistance is both nonsensical and implausible. His evidence that after collecting the cheque from Mr Mawe he went straight to the bank is contradicted by bank records that show the cheque was not deposited until 2 days later. His assertion that the cheque was deposited at the bank without any issue was contradicted in cross-examination by his evidence that the bank officers required him to sign the reverse of the cheque. The suggestion that a police officer of his experience would sign the reverse of a cheque to the effect that he had provided a letter from the RPNGC when he says there was no such letter, simply because he was told to do so, is again, utterly implausible.
    
37. In summary, I formed a very low opinion of the accused’s credibility and am unable to accept him as a witness of truth in relation to matters in dispute where his evidence is not corroborated. I make it clear, however, that I take account of his untruthfulness in relation to his credibility and the reliability of his evidence only and for no other purpose.
    
38. The accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial.
    

Elements of the Offence

39. Section 383A(1)(a)(2)(d) of the Criminal Code provides that:
    
    • (1) A person who dishonestly applies to his own use or to the use of another person –
      1. property belonging to another; ..

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 –

2. ..

100. ..

4. where the property dishonestly applied is of a value of K2000 or upwards.
   

40. As stated in Havila Kavo v The State (2015) SC1450 it is well settled that the elements of the alleged offence are that the accused:
    
    1. applied;
    2. to his own use or to the use of another;
    3. property;
    4. belonging to another person;
    5. dishonestly.
       
41. The State has the burden of proving each and every element of the charge contained in the indictment beyond reasonable doubt.
    
42. Elements i), ii) and iii) are not contentious and I am satisfied they have been established beyond reasonable doubt. It is not disputed that the accused deposited the cheque payable in the sum of K20,000 to his company’s bank account. When he did so he “applied” the “property”, namely the proceeds of the cheque, “to his own use and the use of others”. It is not disputed that the proceeds were never provided to Bomana Police College or its police women. It is also not contentious that for the purposes of s.383A(2)(d) of the Criminal Code, the value of the property was above K2000.
    
43. The effect of the accused’s case is to put element iv) in issue. It is the defence case that NCDC re-directed the cheque to the accused’s company. If it did so intentionally, without mistake and without condition then NCDC lost all legal and equitable interest in the property and thus it did not belong to NCDC for the purposes of the indictment: see The State v Gene [1991] PNGLR 33; and Havila Kavo supra. For similar reasons, element v), dishonesty is also in issue.
    

Belonging to another

44. The defence says that the State’s case is misconceived and that whilst denied, if accepted, could only support a charge of obtaining the cheque, Exhibit B, by false pretences. The defence concession is a significant one given that s. 544 of the Criminal Code provides, for our purposes, that on an indictment charging a person with misappropriation he may be convicted of obtaining goods by false pretences committed with respect to the same property if established by the evidence.
    
45. The discussion in R v Easton [1993] QCA 255; [1994] 1 Qd R 531 is also instructive. The case concerned s. 408C of the Queensland Criminal Code, on which s. 383A of the Criminal Code is modelled, and involved the alleged misappropriation of a cheque. In considering the meaning of “applied to his own use”, Macrossan CJ said (emphasis added) at page 534 and it is useful to quote at some length:
    

“It can be accepted that the section envisages some interaction between the person and the thing and this will not be met merely by the formation of an intention to act or the devising of a plan in respect of the thing. The section nevertheless stops short of requiring that there should be some consumption, expenditure or dissipation of the thing, alteration of its form or utilisation of it to secure some collateral material benefit, although these may be involved. I consider that the requirement of this part of the section is met when there has been a utilisation by the person involved for his own purposes. While the ways in which this may occur are legion, one example may illustrate the very minimal level of activity which I think would be sufficient. If a person takes a picture or work of art belonging to another and puts it in a place for the purposes of his own private enjoyment of it he will have applied it to his own use. He does not, for example, have to sell the picture before it can be said that this has occurred.

...When he first takes the item in an unauthorised way from the person to whom it belongs and carries it towards his house to implement his plan, I consider that he will have already applied it to his own use...

...before an item of property will be "applied", there has to be a mental element, an intention held in relation to the thing, and also there has to be some implementation of that intention, i.e. some act or acts which constitute some dealing with the thing: in simple terms something has to be done to or with the thing. Usually there will be, I think, some influence exerted upon the thing affecting its form, location or its attributes. The "application" will involve some deflection from the purposes of the person to whom the property belongs.

46. It is not in dispute that the accused collected Exhibit B from NCDC offices on 15 March 2016. It is also clear and I find that the accused was well aware at the time that the cheque was payable to Bomana Police College and intended for the benefit of its police women. I also find on the evidence of the State witnesses and his own evidence in court that he was aware of Exhibit A, the letter seeking assistance from the Governor for this purpose. I further find on Ms Aitsi’s evidence that the cheque was made payable to Bomana Police College on the accused’s instructions and moreover, that the accused told her that he was collecting the cheque on behalf of its police women.
    
47. It is not in dispute that the accused then took the cheque away and failed to deliver it to Bomana Police College or any of the intended beneficiaries. In my view those facts alone would be sufficient to establish that the accused diverted the cheque from the purposes of NCDC to whom it belonged and applied it to his own use.
    
48. It does not appear that this is contemplated by the terms of the indictment, however, which states that the accused “applied to his own use and to the use of others ... K20,000, the property of” NCDC. S. 530(6) and (7) of the Criminal Code, read together provide, so far as the description of property in an indictment, that an averment of money, without specifying any particular form of money, will be sustained by proof that the offender dealt with anything which is included in the term “money”. The term “money” is defined in s. 1 of the Code to include cheques. If the indictment had included the words “money in the sum of K20,000” or “money, namely K20,000” there would be no doubt that this would include the cheque. Whilst “property” in s.1 of the Code certainly extends to a cheque, the description of the property in the indictment simply refers to K20,000, pointing to the proceeds of the cheque.
    
49. It is the defence case that after the accused collected the cheque, he took it to Mr Mawe and that NCDC then changed the payee in favour of his company and that it did so because his company was entitled to payment for services rendered to NCDC.
    
50. As above, I found the accused to be completely lacking in credibility and I don’t accept his evidence about services rendered to NCDC. Ms Aitsi, the Commitment Clerk at NCDC, had no knowledge of Luksave Training Institute. Mr Mawe is now dead but I find on Ms Aitsi’s evidence that Mr Mawe introduced the accused to her in relation to the request by the policewomen at Bomana Police College. Ms Aitsi provided the cheque to the accused because he said he was collecting it on their behalf and because Mr Mawe had introduced him to her for that purpose. As she said of the accused with respect to the cheque for Bomana Police College: “He started it and he finished it”.
    
51. With respect to Exhibit G, page 2, Ms Aitsi did not positively identify the signatures beside the alteration as being those of the authorised signatories at the time. Ultimately her evidence was that she could not say what happened to the cheque after she gave it to the accused. One of the signatures which purportedly endorsed the change is somewhat similar to that of the initial countersigning officer. The State did not call the authorised signatories at the time or anyone else from NCDC. Nor did it call a handwriting expert and in the circumstances I exercise caution: R v Magalu [1974] PNGLR 188 (see also The State v Baine [1989] PNGLR 89). Nevertheless, I find that the signature purportedly endorsing the alteration is on the face of it significantly different in several key respects from the initial countersigning signature, in particular with respect to the nature and placement of a large loop which in the initial signature is heavier, of a different shape and extends well above the rest of the signature.
    
52. In addition, the cheque was drawn non-negotiable by NCDC in favour of Bomana Police College. According to Ms Aitsi in the event there was to be a change in payee, the proper procedure was for the cheque to be returned through the Commitment Clerk.
    
53. Furthermore, having regard to the admissions in the record of interview I find that it was the accused who crossed out the words “Bomana Police College” and replaced them with the words “Luskave Training Institution”. Bank records show that two days after collecting the cheque from NCDC the accused deposited it to his company’s account. Bank records also show, and the accused admits, that at the time he signed the reverse of the cheque. In doing so he confirmed that the deposit was supported by RPNGC letter dated 16 March 2016, signed by himself. The accused was not in a position to say anything about the cheque on behalf of RPNGC. Thereafter, I also find that on several occasions for almost two years the accused offered to repay the monies and went so far as to book flights (which were later cancelled for lack of payment) and attend at the airport.
    
54. Having regard to those facts taken together and in combination with the circumstances in which the accused collected the cheque, I am satisfied that the State has excluded any rational inference that NCDC endorsed the payment of the cheque to the accused’s company. I am therefore satisfied beyond reasonable doubt that the K20,000 remained at all material times the property of NCDC.
    

Dishonestly

55. Dishonesty is a question of fact for the trial judge to determine, based on the facts of the case and according to the ordinary standards of reasonable and honest people: Brian Kindi Lawi v The State [1987] PNGLR 183.
    
56. In determining whether the prosecution has proven that the accused person was acting dishonestly, the Court must first decide whether according to the ordinary standards of decent, reasonable and honest people what was done was dishonest. The court must also be satisfied beyond reasonable doubt that the accused knew that what he was doing was dishonest according to those standards: The State v Francis Laumadava [1994] PNGLR 291 at 293 applying Brian Kindi Lawi v The State, supra.
    
57. I consider that according to the standards of ordinary and reasonable people the conduct of the accused was dishonest. He collected the cheque payable to Bomana Police College on the basis that he was doing so on behalf of its police women. He failed to deliver it to them and instead changed the intended payee and deposited the cheque to his company’s account and withdrew the proceeds. No monies were ever made available by him to the College’s police women for whom he knew the proceeds of the cheque were intended.
    
58. I am satisfied beyond reasonable doubt that having regard to the accused’s intelligence, education and experience he knew at the time he applied the property to his own use and the use of others that what he was doing was dishonest. There is no other rational inference. The accused was a long-serving police officer and responsible for the training of other police officers. The fact that the accused approached some of the police women on several occasions and offered to repay the money is also relevant to my determination that this element has been made out beyond any reasonable doubt.
    

Verdict

59. I am satisfied beyond reasonable doubt that the accused, Tony Hasu, dishonestly applied to his own use and the use of others K20,000, the property of NCDC. Accordingly, I find him guilty as charged in the indictment.
    

Verdict accordingly.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused