State v Semra [2019] PGNC 468; N8296 (23 December 2019)

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

CRIMINAL LAW – trial - particular offence – conspiracy to defraud – Criminal Code, s. 407(b) –allegation of conspiracy in depositing a cheque into a bank account

CRIMINAL LAW – trial - particular offence – Criminal Code, s. 383A(1)(a) – misappropriation of money intended for the purpose of renovating, repairing and maintaining a Church building

1. YAGI J: A joint trial of the three (3) accused was conducted in Kainantu during the October crimes sitting. Due to time constraint the trial was adjourned to Goroka for hearing of submissions on the evidence. That event occurred on 08 October and the decision on verdict was reserved. It was further deferred on last two occasions until today.

2. The State presented an indictment against the 3 accused on 16 October 2019. The indictment charged one count of conspiracy to defraud under s. 407(b) of the Criminal Code Act (the Code) and one count of misappropriation under s.383A(1)(a)of the Code.

“COUNT ONE: Robert Semra of Hayafaga Village, Henganopi and Honeve Moropie of Yabunka Village, Kainantu both of Eastern Highlands Province stands charged that they between the 22^nd day of April 2015 and 28^th day of September 2015 at Bank South Pacific, Kainantu Branch in Papua New Guinea conspired with each other and deposited a K92,000 cheque into Rapingka Lutheran Church Development Trust account number 7003504292 at Bank South Pacific.

COUNT TWO: Robert Semra of Hayafaga Village, Henganopi and VIZAO Moropie of Yabunka Village, Kainantu both of Eastern Highlands Province stands charged that they between 22^nd day of April 2015 and 29^th day of September 2015 at Bank South Pacific, Kainantu Branch in Papua New Guinea dishonestly applied to their own use, monies in the sum of K92,000, the property of Rapingka Memorial Lutheran Church.”

4. The case for the State against the 3 accused is basically that; the Local Member of National Parliament Hon. Johnson Tuke presented to Raipinka Lutheran Memorial Church Circuit a cheque of K100,000.00 which funds was specifically for the purpose of renovating an old historic Church building. The cheque was presented at a public gathering and received on behalf of Raipinka Memorial Lutheran Church Circuit by the President Mr Nathaniel Soata. After the gathering the cheque was retrieved from Mr Soata by the Executive Officer of the Local Member because one of the signatories to the cheque did not sign. It was intended that once the signatory had signed, the cheque would be released back to Mr Soata.

5. However, the cheque was not released to Mr Soata after it was signed. The cheque ended up in the possession of the accused, Honeve Moropie, courtesy of the accused, Robert Semra. The cheque was then deposited into the main Church account number 7002058001 operated at the Bank of South Pacific Limited Kainantu Branch. A Trust Account number 7003504292 was then opened whereby an amount of K92,000.00 was transferred from the main Church account and deposited into the Trust Account. It is therefore the State’s allegation that the two accused, Honeve Moropie and Robert Semra, conspired with each other and deposited the sum of K92,000.00 into the Trust Account.

6. After the amount of K92,000.00 was deposited into the Trust Account the funds were then drawn by the two accused, Ben Vizao Moropie and Robert Semra, and applied or used for purposes other than was specifically intended. It is therefore the contention by the State that both accused, Ben Vizao Moropie and Robert Semra, had misappropriated the amount of K92,000.00 the property of Raipinka Memorial Lutheran Church.

7. There are number of copy documents tendered by State into evidence without objection. These consists of the cheque number 5033 dated 31/03/15, cover letter dated 02/04/15, the bank statement of accounts, bank deposit forms, bank withdrawal forms, bank signature and images document, letter dated 13/04/15, all of which have been marked as Exhibits “S1” to “S16”.

8. The State attempted to tender the records of interview between the 3 co-accused and the police, however, these were rejected by the Court after finding breaches of constitutional rights had occurred during the interview.

9. The State also called 4 witnesses. The fourth witness was Izo Zime who is the police officer involved in the investigation of the complaint against the 3 accused. His evidence relates to the conduct of the record of interview. Following his evidence, the court found that the constitutional rights of the 3 accused under s.42(2)had been breached and in consequence rejected the records of interview.

10. The 3 other witnesses gave evidence that was material to the two charges in the indictment. They were the Raipinka Memorial Lutheran Church Circuit President, Mr Nathaniel Soata, Mr Daniel Maire who is a member of the Raipinka Memorial Lutheran Church and Tazo Sinkepe, a member of the Raipinka Memorial Lutheran Church and a co-signatory to both the Raipinka Memorial Lutheran Church Main Bank Account and the Raipinka Memorial Lutheran Church Development Trust Bank Account.

11. The witnesses for the defence who testified in court were the 3 co-accused. The defence also tendered several documents. These were marked as Exhibits “D1”, “D2”and “D3”.

12. I have heard the testimonies of witnesses for both the prosecution and defence in court. I have also perused all the documents tendered into evidence in the trial.

14. In or about October 2013 the local Member of Parliament for Kainantu Hon. Johnson Tuke (Local MP) made a financial commitment to assist Raipinka Memorial Lutheran Church in repairing and maintaining the old church building at Raipinka. The commitment was for an amount of K10,000.00. However, there was delay in the remittance of funds by the Local MP.

15. The accused Honove Moropie in his capacity as the Chairman of Raipinka Luthern Church Congregation decided to follow up on the commitment by the Local MP. He enlisted help from some people. These people included the accused Ben Vizao Moropie, Morgan Suriki and the accsed Robert Semra. I propose to refer to this group collectively as the “Raipinka Church Renovation Committee” or “RCRC”. Morgan Suriki was engaged because of his professional expertise as an architect. Robert Semra was engaged because of his experience in formulation and drafting of project proposals. Ben Vizao Moropie was engaged because he is an ordained Pastor in the Lutheran Church and occasionally preaches at the Raipinka Lutheran Church.

16. A letter dated 27 October 2014 co-signed by the accused Honove Moropie and Ben Vizao Moropie as Congregation Chairman and Congregation Pastor respectively was delivered to the Office of the Local MP. That letter was issued under the letterhead of “Rapinka Memorial Lutheran Church”. It is marked as Exhibit “D3”. In that letter the authors made reference to a plan to carry out repair and maintenance work to the Church building. The contents of the letter is stated as follows:

We, the executive of Raipinka Memorial Lutheran Church, Raipinka Mission Station convey our greetings in the name of our Lord Jesus Christ.

The Raipinka Memorial Lutheran congregation is planning to start repair maintenance of church as of second week of November 2014.

We humbly approach your honourable office to follow up on the above mention pre-commitment of K10,000.00 that was committed at Raipinka Mission Station on the 1^st of October 2013 for the renovation of the Raipinka Memorial Church.

Honeve Muropie Pr. Ben Muropie
Congregation Chairman Congregation Pastor

17. A hand-written note on the letter indicated the letter was received by the Local MP’s Office on 27 October 2014 and was to be referred to the attention of the Local MP.

18. After some consultation between the Local MP’s Office and the RCRC it was decided that the initial commitment by the Local MP for K10,000.00 be increased because the actual repair costs would be substantial. Consequently, a project proposal was compiled and presented by the RCRC to the Local MP’s office. The proposal is Exhibit “D3” and was presented together with a letter dated 27 October 2014. This letter is Exhibit “D2”.

19. The project proposal is dated 28 November 2014 and included an “ITEMISED BILL OF QUOTATITIES (QUANTITIES)”. Amongst others, it is listed all the materials, the quantity required, and the costs involved. The labour and equipment costs was added to the materials and the total project cost was valued at K100,000.00. The summary of the estimate project cost stated in the proposal was:

Building Materials; K 85,008.22
Transport; K 5,000.00
Capital Works: K 9,991.78
Total: K100,000.00

20. Based on the project proposal the Local MP then agreed to release an amount of K100,000.00 for the purpose of the renovation, repair and maintenance works to the Church building.

21. A cheque of K100,000.00 was then presented by the Local MP to the President of the Raipanka Memorial Lutheran Church Circuit Mr Nathanial Soata in or about early April 2015. However, the cheque did not bear the signature of the District Treasurer and so it was returned to the Executive Officer of the Local MP to rectify the omission.

22. After the cheque was counter signed by the District Treasurer it was collected by the accused Robert Semra and delivered to the accused Honeve Moropie who then formed a Trust Committee. The members of the Trust Committee comprised of Robert Semra (the accused), Ben Vizao Moropie (the accused), Morgan Sukiri and Tazo Sinkepe. The accused Robert Semra was the Chairman of the Trust Committee.

23. The cheque is dated 31 March 2015 and for an amount of K100,000.00 payable to “Raipinka Memorial Lutheran Church”. A copy of the cheque is marked as Exhibit “S14”. The cheque was then deposited into the Raipinka Memorial Lutheran Church Main Account No. 7002058001 (Main Account) maintained at the Bank South Pacific Limited Kainantu Branch (Bank). A letter dated 02 April 2015 from the Eastern Highlands Provincial Treasurer and the District Treasurer was addressed to the Bank for the purpose of facilitating the transaction of the cheque. That letter is part of the Exhibit “S14”. The pertinent part of the letter states the purpose of the cheque as being “payment for financial assistant for church building maintenance.”

24. On 29 April 2015 the Trust Committee opened a trust account at the Bank under the name “Raipinka Memorial Lutheran Church Development Trust Account” with the account number 7003504292 (Trust Account). There are three signatories to the trust account. They are Mr Robert Semra (accused) identified as the Chairman; Mr Tazo Sinkepe identified as the Treasurer and Mr Vizao Muropie (accused) identified as a Pastor. The Bank identification document is Exhibit “S13”. The method of operation instructions on the account to the Bank is for “anyone to sign with Chairman”.

25. On the same day of opening the trust account (29 April 2015) an amount of K92,000.00 was transferred from the Main Account into the new Trust Account. It is not clear from the evidence how this transaction was facilitated. However, what is clear is that the K92,000.00 was part of the K100,000.00 assistance from the Local MP for the purpose of the Trust Committee undertaking its mandate in carrying out the repairs, maintenance and renovation work on the old Church building at Raipinka.

26. Following the deposit of K92,000.00 into the Trust Account several cash withdrawal transactions have been conducted on the account. The following table shows the details including the dates and amounts of cash withdrawal transactions conducted on the Trust Account:

Transaction Date	Amount Withdrawn	Payment Method	Authorizing Signatories
01 May 2015	K20,200.00	Cash	Robert Semra & Vizao Muropie
08 May 2015	K57,800.00	Cash	Robert Semra & Vizao Muropie
25 May 2015	K1,000.00	Cash	Robert Semra & Vizao Muropie
05 June 2015	K2,500.00	Cash	Robert Semra & Vizao Muropie
30 July 2015	K4,100.00	Transferred to Account No. 1012675979	No Bank Transaction Authorization Record
10 Sept. 2015	K4,000.00	Cash	Robert Semra & Vizao Muropie
28 Sept. 2015	K400.00	Cash	Robert Semra & Vizao Muropie
October 2015	K350.00	Credited Account Number 7000998802	No Bank Transaction Authorization Record

27. The closing balance on the Trust Account as at 30 September 2015 was K112.00 credit. The total amount withdrawn or transferred to other accounts is K90,350.00. The total amount deducted by the Bank as fees is K1,605.00.

28. The Trust Account Treasurer – Mr Tazo Singkepe has no involvement at all whatsoever as regards the withdrawal transactions on the Trust Account.

29. From the Trust Account withdrawals, the accused Robert Semra used an amount of K10,375.00. The money was spent mostly on office equipment, transportation, accommodation, meals and incidental expenses. He bought a laptop, printer and camera to use for his work allegedly in connection with the repairs, maintenance, renovation and preserving of the old church building at Raipinka. These office equipment were kept in his house however were removed when he was detained in custody following his arrest. He also used the money to travel to various places including Wampul which is located somewhere at the border of Morobe and Eastern Highlands Provinces. He travelled there on four occasions. He travelled to Teptep in remote Madang Province, Mt Munjil Station, Kamano No. 1 in Kainantu, Unantu in Wards 3 of Agarabi LLG. He also spent some money allegedly for transportation proposes to bring officials from Goroka to Raipinka to inspect the old Church building.

30. As for the accused Ben Vizao Moropie he used a sum of K57,000.00. He used the money for buying and selling gold. He went to Wau in the Morobe Province and allegedly spent K20,000.00 to buy gold. He spent another K37,000.00 to buy gold in Kainantu. As it turned out he made a total loss in his endeavour to buy and sell gold.

31. The undisputed fact is that no money from the K100,000.00 received from the Local MP has been used or applied to repair, maintain, renovate or preserve the old Church building at Raipinka Lutheran Mission Station.

32. There are essentially two issues in the trial. Firstly, whether the accused Robert Semra conspired with the accused Honeve Moropie in depositing the sum of K92,000.00 into the Raipinka Lutheran Church Development Trust account number 7003504292 with the intention to defraud Raipinka Lutheran Memorial Church Circuit. The second issue is whether the accused Robert Semra and the accused Ben Vizao Moropie had dishonestly applied to their use or use of others money in the sum of K92,000.00 the property of Raipinka Memorial Church.

33. That issue can be dealt with very quickly. It appears both counsels have fallen asleep on a fundamental technical issue. The charge is defective from the very outset. The defence counsel failed to have the charge (Count 1) quashed under ss. 534(2)and 558(1)(b) of the Criminal Code.

34. The charge is based on s. 407(1)(b) of the Criminal Code. This provision states –

(b) to defraud the public, or any person (whether or not a particular person); or

35. It is apparent one of the key elements of the offence is the conspiracy “to defraud any person”. This element of the offence has not been pleaded or incorporated into the charge on the indictment. The charge does not state that the two accused namely, Honeve Horopie and Robert Semra, conspired to defraud Raipinka Memorial Lutheran Church Circuit.

36. The charge merely state that the two accused “conspired with each other”.

37. In my respectful view, the charge is technically flawed and defective. The charge must be dismissed without more.

38. If, I am wrong on this point, I accept the submission of the defence counsel that there is no evidence of conspiracy to do an unlawful act.

39. The leading case in our jurisdiction as regards the offence of conspiracy to defraud under s. 407(1) of the Criminal Code is State v Iori Veraga (2005) N2849. In that case the Court (per Sakora J) stated that “the offence of conspiracy consists of an agreement between at least two persons to do an unlawful act or a lawful act by unlawful means.” Hence to establish the offence his Honour said:

The prosecution must prove the existence of an agreement. The physical acts by which the conspirators formed the agreement are the relevant facts. Once the agreement is formed, the crime is committed. It is to be noted that the prosecution need not prove that there was an agreement regarding the way in which the unlawful act was to be performed, only that there was agreement to perform the unlawful act.

40. The question arises in this case whether there is an agreement between Robert Semra and Honeve Moropie to do an unlawful act or do an lawful act by unlawful means. In this case the evidence is that Robert Semra was contacted by the Executive Officer of the Local MP to collect the K100,000.00 cheque on behalf of the Raipinka Memorial Lutheran Church. He collected the cheque and delivered it to Vizao Moropie who than passed it onto Honeve Moropie. Honeve Moropie said as the Congregation has already approved of establishment of the Trust Committee and its role and functions in connection with the renovation works to which the K100,000.00 was given he passed the cheque to the Trust Committee to carry out its mandate. He said as to how the money was used, he had no idea. He was not involved in the use of the money. From this evidence alone it cannot be said that there was a conspiracy to commit an unlawful act or a lawful act by unlawful means. However, it maybe inferred from the evidence of Nathaniel Soata and Patori Sokere that the authority of Honeve Moropie, in so far as the ELC-PNG Constitution (Exhibit “D5”) is concerned, is subject to the overriding supervisory power or authority of the Circuit President – Mr Nathaniel Soata. That may be the case, however, the evidence is not sufficiently strong in my respectful view. There is no evidence such as clear guideline or procedure to be observed in dealing with funds coming from external sources. There is evidence that the Congregation Executives conducted meetings and approved of the Trust Committee and so it appears the role, functions and responsibilities of the Trust Committee has the endorsement of the established church body. The establishment of the Trust Committee was not an independent or unilateral decision of Honeve Moropie. There is no other evidence that may suggest that Honeve Moropie acted unlawfully or was a conspirator to do an lawful act through unlawful means. In my view the evidence is insufficient to draw that conclusion.

41. That being the case it goes without saying that a similar finding must also result, and the benefit of doubt be given in respect to the accused Robert Semra.

42. For these reasons I dismiss count 1 in the indictment. I find the two accused Robert Semra and Honeve Moropie not guilty and both are acquitted of count 1.

Issue 2 – dishonestly applied money to own use by Robert Semra and Vizao Moropie

43. The misappropriation offence is defined by s. 383A(1(a) of the Criminal Code. It states:

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

44. I accept the submission by the defence counsel that the elements of the offence are:

45. In my view, the evidence is clear. The money that was paid into the Trust Account was to be used or applied specifically for the purpose of repairing, maintaining, renovating and restoring the old Church building at Raipinka. However, none of that money was applied for that purpose.

48. The defence argued that there is no evidence of the accused Robert Semra applying the monies to his own use nor did he act dishonestly. Counsel argued the accused (Robert Semra) used the monies to collect information for use by the Goroka Museum Office who were engaged to provide assistance in terms of preserving the Church building.

49. So I ask what does the word “dishonestly” in s. 383A(1)(a) of the Code mean and how is it applied by the Courts.

50. The Supreme Court in Brian Kindi Lawi v The State [1987] PNGLR 183 considered in detail the meaning of dishonestly in s. 383A of the Code and said it pertains to the state of mind of the person who does an act in dealing with a particular property. As to what act amounts to dishonesty is a question of fact for the trial judge after assessing all the evidence. But the Court is required to apply both an objective and subjective test to determine the state of mind of an accused. In State –v- Francis Natuwohala Laumadara [1994] PNGLR 291, Injia AJ (as he then was) stated at page 293:

“The question whether the accused acted dishonestly is an objective one. At the same time it is also a subjective one. The court must look into the mind of the accused and determine whether, given his intelligence and experience, he would have appreciated, as right minded people would have done, that what he was doing was dishonest.”

51. In State v Gabriel Ramoi [1993] PNGLR 390, his Honour Salika J (as he then was) applied the dictionary meaning and held that “dishonesty” means and includes “intended to cheat, deceive or mislead”.

52. I turn now to the facts of the case. The first question is; did the accused acted dishonestly when he obtained the monies and expanded the monies on trips and other things?

53. The accused Robert Semra is a reasonably educated person. He has been involved in putting together project proposals for many people. He has been involved in church work for many years. He was raised in a Christian background. His father was a former Pastor in the Lutheran Church.

54. In my view the answer is yes. He knew at the outset that the money was specifically for the renovation works of the church building. He was the proponent of the project proposal. He drafted it. The costing was clearly itemized in the project proposal. There is nothing in the project proposal for the money to be used for trips and other related activities. There is evidence that no proper meetings were held by the Trust Committee to discuss the use of funds. There is no record of any minutes of the meetings (if any) of the Trust Committee. There are no receipts maintained for the use of the monies. There are no reports provided in respect to the trips taken, The funds appeared to be used at his discretion without approvals by the Trust Committee as there are absolutely no records at all. Some of the money was used to buy office equipment. There is no provision for purchase of office equipment in the project proposal. When he used the money for office equipment, the trips and related activities, he knew or ought to have known that this was wrong. He was a trustee and had a heavy responsibility to ensure that he acted in the best interest of the beneficiary. The evidence clearly demonstrate that he conducted the trips and various activities carelessly and recklessly, if not negligently on behalf of the RCRC. He acted in breach of his fiduciary duty as a trustee. I am therefore satisfied that he acted dishonestly.

55. The same can be said of the accused Vizao Moropie. He is reasonably educated. He has been a Church Pastor for many years. He is a man of God and is expected to act accordingly. He decided to engage in gold buying. The project proposal does not provide for the funds to be used for gold buying. I cannot comprehend a Church Pastor engaging, to the extent of that he did, in buying and selling gold. He used a substantial amount of money in a short space of time. Again the same story repeats itself. There are absolutely no records whatsoever on his short stunt as a gold buyer and dealer. He was a trustee and had a heavy responsibility to ensure that he acted in the best interest of the beneficiary. Again, the evidence clearly demonstrate that he conducted the gold buying and selling activities carelessly and recklessly, if not negligently on behalf of the RCRC. He also acted in breach of his fiduciary duty as a trustee. In these circumstances I am satisfied that the accused Vizao Moropie also acted dishonestly when he used the money as he did.

56. As I said earlier the property in the money always remain in the State until it is used for the purpose intended. In Joseph Ropka v The State [1994] PNGLR 535 it was held that where money is granted for a particular purpose, the owner of the money has legal and equitable proprietary interest in the money until it is applied for the intended purpose. Moreover, s. 383A(3)(d) of the Code provides that for the purposes of s. 383A “persons to whom property belongs 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 over it.” see also Stanley Poke v The State (2010) SC1054.

57. The facts of this case seem to indicate that the two accused (Robert Semra and Vizao Moropie) were using the money to try to further the objective of the funds. This is somewhat not dissimilar to what transpired in the Eremas Wartoto v The State (2019) SC1834. In that case the offender, through his company, was paid a substantial amount of money for a contract to do rehabilitation works on a school facility. He used some funds to pay off his mortgage debts so that he can usedthe income on his properties to undertake the renovation and maintenance work. He was charged for misappropriation under s. 383A(1) of the Code. The trial Court found him guilty of misappropriation. He appealed against the conviction. The Supreme Court dismissed his appeal holding amongst other things, that the deposits he made into the company account remained the property of the State and that using the money, although with bona fide intention, for purposes not intended was wrong and constitute misappropriation.

58. It is trite that on a trial the onus and burden of proof lies with the State. The State must discharge the burden on the required standard. The standard is proof beyond all reasonable doubt.

59. For all these reasons I have alluded to, I find that the State has proven its case against the two accused, Robert Semra and Ben Vizao Moropie, beyond reasonable doubt. I find and am satisfied that all elements of the offence have been proven on the required standard. I therefore find both accused (Robert Semra and Ben Vizao Moropie) guilty of misappropriation as charged and I convict both accused accordingly.

Verdict - Count 1: Robert Semra - Not Guilty & Acquitted
Honeve Moropie - Not Guilty & Acquitted

Count 2: Robert Semra - Guilty & Convicted
Vizao Moropie - Guilty & Convicted

60. Finally, the Court orders that cash bail monies and guarantor’s surety monies are to be refunded forthwith.

61. A warrant of commitment on remand for sentencing will be issued for the two convicted prisoners; Robert Semra and Ben Vizao Moropie, to be remanded at Bundaira Correctional Institution, Kainantu pending sentencing.
_____________________________________________________________
Public Prosecutor: Lawyer for the State:
Public Solicitor: Lawyer for All three Accused

National Court of Papua New Guinea

State v Semra [2019] PGNC 468; N8296 (23 December 2019)