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

State v Ivory [2022] PGNC 394; N9870 (8 September 2022)

N9870

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 275 & 276 OF 2020

STATE

V

FAITH IVORY

Popondetta: Wawun-Kuvi, AJ
2022: 6^th,7^th & 8^th September

CRIMINAL LAW-TRIAL-Abuse of Office, section 92(1)(2) and Misappropriation, section 383A(1)(a)(2)(d) of the Criminal Code- Whether the accused abused her office for gain? Whether accused misappropriated monies in the sum of K48, 762.65?

The accused was charged with one count of abuse of office for the purpose of gain under section 92(1)(2) and one count of misappropriation under section 383A(1)(a)(2)(d) of the Criminal Code.

The accused was the Head Mistress of Safita Primary School in Safita Village, Sohe, Northern Province. Sometime in November of 2018, Honorable Henry Jons Amuli, member for Sohe, presented a cheque for K50, 000.00 to the Safita Primary School. The State alleges that soon after the deposit of the cheque the accused withdrew the sum of K48, 762.65 in three different transactions. That the accused actions were an abuse of her office as Head Mistress of the School and when she did not put the money to the school infrastructure, she dishonestly applied the funds.

The accused remained silent.

Held:

1. For a charge of abuse of office under section 92 (1)(2) of the Criminal Code the State must prove that the accused: (a) while employed in the Public Service, (b) abused the authority of her office, (c) did or directed to be done any arbitrary act, (d) prejudicial to the rights of another: see State v Luma [2021] PGNC 31; N8798 (8 April 2021) and State v O'Neill [2021] PGNC 373; N9213 (14 October 2021).
   
2. Dishonesty is not an element of the offence. It is not necessary for the State to prove conflict of interest, or that the accused intended to gain or that there was any conflict of interests: see State v Luma [2021] PGNC 31; N8798 (8 April 2021) and State v O'Neill [2021] PGNC 373; N9213 (14 October 2021).
   
3. The accused was charged specifically that she intended to gain pursuant to section 92(2). Therefore, the State must prove that when she performed the arbitrary act, she did so for the purpose of gain.
   
4. An additional element which is not specifically stated under section 92, but the State must nonetheless prove is that the conduct of the accused is “...... serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects”: see State v Luma [2021] PGNC 31; N8798 (8 April 2021), R v Quach [2010] VSCA 106; 201 A Crim R 522 and Obeid v R [2015] NSWCCA 309.
   
5. The prosecution must prove that the conduct is so serious that it warrants criminal charges. The full bench in Potape v State (2015) SC1613 recognized that distinction must be drawn between conduct that requires administrative, civil, or criminal sanctions: State v Luma [2021] PGNC 31; N8798 (8 April 2021), R v Quach [2010] VSCA 106; 201 A Crim R 522, Potape v State (2015) SC1613 and Obeid v R [2015] NSWCCA 309.
   
6. For a charge of misappropriation under section 383A(1)(a), the State must prove that the accused: (1) The application (2) To own use or use of another (3) Property (4) Belonging to another (5) Dishonesty: see Havila Kavo v The State (2015) SC1450.
   
7. The State further charged under section 383A(2)(b) of the Criminal Code. It must also prove that the property belonged to the accused employer.
   
8. The funds were given to the school for infrastructure and other school activities.
   
9. There was no evidence obtained or produced from the Sohe District Administration or the Member for Sohe as to the purpose of the funds and whether there were any acquittals for the funds.
   
10. There was no evidence as to what happened to the monies after they were transferred and withdrawn for the School Account.
    
11. Whilst the evidence is that there was no new classrooms and teachers houses and no maintenance work done at the school, the State did not call any witnesses from the school such as the teachers or Deputy Headmaster to confirm or refute that the funds were not allocated to other school activities or equipment.
    
12. There is evidence that a carpenter arrived at the school and was chased off by angry villagers.
    
13. In a circumstantial case, the State must prove that the guilt of the accused is the only reasonable inference: Paulus Pawa v The State [1981] PNGLR 498.
    
14. There are available other legitimate reasonable inferences as to the application of the monies which have not been excluded.
    
15. Although the State had specifically charged that the accused misappropriated monies to the use of Grassford Sagen, Ethel Freda Toreka, Jonah Panuel, Augustine Bawani and Dorothy Oraka, it did not produce any evidence to support that monies were paid to these individuals.
    
16. I cannot be satisfied on the required standard that the accused abused her office for gain and that she misappropriated the monies to her use and the use of Grassford Sagen, Ethel Freda Toreka, Jonah Panuel, Augustine Bawani and Dorothy Oraka.
    
17. Verdict of Not Guilty is returned for counts 1 and 2 of the indictment for the charges of abuse of office under section 92(1) (2) and misappropriation under section 383A(1)(a) of the Criminal Code.
    

Cases Cited:
Papua New Guinean Cases

State v Luma [2021] PGNC 31; N8798
Wartoto v The State (2019) SC1834
Potape v State (2015) SC1613
Havila Kavo v The State (2015) SC1450
Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
Jaminan v The State (No 2) [1983] PNGLR 318
John Kasaipwalova v The State [1977] PNGLR 257

Overseas Cases

Obeid v R [2015] NSWCCA 309
R v Quach [2010] VSCA 106; 201 A Crim R 522
R v Easton [1993] QCA 255; [1994] 1 Qd R 531

Reference

Criminal Code (Ch 262)

Counsel

Mr. A Kaipu, for the State
Mr. E Yavisa and Mr S Kuruwalo, for the Defence

VERDICT

8^th September, 2022

1. WAWUN-KUVI, AJ: Faith Ivory is a 48-year teacher from Safita Village, Sohe, Northern Province. Between 2018 and 2019 she was the Head Mistress of Safita Primary School.
   
2. The chairman of the school board during the relevant period was one Grassford Sagena. Also, from Safita Village.
   
3. Sometime in November 2018, Henry Jons Amuli, Member for Sohe, presented a cheque of K50, 000.00 to Safita Primary School.
4. The cheque was deposited in the account of Safita Primary School held with the Bank of South Pacific.
   
5. After the deposit, Faith Ivory and Grassford Sagena withdrew K48, 000 on three separate occasions.
   
6. The State says that her actions were an abuse of her office and that when she abused her office, she had done so with the intent to gain.
   
7. The State further alleges that Faith Ivory did not use the monies for any school purpose or infrastructure. Instead, she used it for her own benefit and for the benefit of others.
   

Burden of Proof

8. The onus is on the prosecution to prove its case beyond reasonable doubt and to negate any defences properly raised on the evidence beyond reasonable doubt.

Charges

9. The accused is charges as follows:
   

“Count 1: FAITH IVORY of Sakita Village, Sohe District, Oro Province stands charged that she at Popondetta Town, Popondetta District, Oro Province in Papua New Guinea between 23^rd day of November 2018 and 22^nd day of January 2019 being employed in the Public Service as the Head Mistress of Sakita Primary School did in the abuse of the authority of her office withdrew a total sum of K48, 762.65 from Popondetta BSP Account of Safita Primary School without due process of the School Board, prejudicial to the lawful rights of Sakita Primary School; and did this act for the purposes of gain contrary s.92(1)(2) of the Criminal Code.”

“Count 2: FAITH IVORY of Sakita Village, Sohe District, Oro Province stands charged that she at Popondetta Town, Popondetta District, Oro Province in Papua New Guinea between 23rd day of November 2018 and 22nd day of January 2019 dishonestly applied to her own use and to the use of Glassford Sagena, Ethel Freda Toreka, Johah Panuel, Augustine Bawani and Dorothy Oraka; property in the sum of K48, 762.65 cash monies, belonging to the State.”

The Elements

10. For a charge of abuse of office under section 92 (1)(2) of the Criminal Code the State must prove that the accused: (a) while employed in the Public Service, (b) abused the authority of her office, (c) did or directed to be done any arbitrary act, (d) prejudicial to the rights of another: see State v Luma [2021] PGNC 31; N8798 and State v O'Neill [2021] PGNC 373; N9213.
    
11. Dishonesty is not an element of the offence. It is not necessary for the State to prove conflict of interest, or that the accused intended to gain or that there was any conflict of interests: see State v Luma [2021] PGNC 31; N8798 (8 April 2021) and State v O'Neill [2021] PGNC 373; N9213.
    
12. The accused was charged specifically that she intended to gain pursuant to section 92(2). Therefore, the State must prove that when she performed the arbitrary act, she did so for the purpose of gain.
    
13. An additional element which is not specifically stated under section 92, but the State must nonetheless prove is that the conduct of the accused is “...... serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects”: see State v Luma [2021] PGNC 31; N8798, R v Quach [2010] VSCA 106; 201 A Crim R 522 and Obeid v R [2015] NSWCCA 309.
    
14. The prosecution must prove that the conduct so serious that it warrants criminal charges. The full bench in Potape v State (2015) SC1613 recognized that distinction must be drawn between conduct that requires administrative, civil, or criminal sanctions: State v Luma [2021] PGNC 31; N8798, R v Quach [2010] VSCA 106; 201 A Crim R 522, Potape v State (2015) SC1613 and Obeid v R [2015] NSWCCA 309.
    
15. For a charge of misappropriation under section 383A(1)(a), the State must prove that the accused: (1) The application (2) To own use or use of another (3) Property (4) Belonging to another (5) Dishonesty: see Havila Kavo v The State (2015) SC1450.
    
16. The State further charged under section 383A(2)(b) of the Criminal Code. It must also prove that the property belonged to the accused employer.
    

The Evidence

17. The State called five witnesses who held various positions with the School Board. They are all from Safita Village.
    
18. Terrence Alban was the chairman in 2019. He replaced Glassford Sagena. He confirms that Henry Jons Amuli gave K50, 000.00 to the school. His evidence was on the process of calling board meetings and the process of determining the allocation of funds to school activities. He also states that the funds were meant for infrastructure and development of the school. He was not a member of the school board at the time the funds were given and used. He does not know how the funds were used.
    
19. Richard Sare says that he was the treasurer. He had varying answers as to when he commenced as treasurer. However, as the evidence developed it because clear that he was not a member of the school board but was part of the PNC body. He held the position of PNC treasurer during the relevant period. He says the money was for school maintenance and children’s things. He did not see any construction or maintenance the school.
    
20. Jeremo Peremo was the vice chairman. He says that the money was for classrooms and teachers houses. In 2017 and 2018 he was involved with Richard Masere and does not now what was being discussed about the funds. He also says that there was no meeting because if there was a meeting, he would be informed.
    
21. Jimmy Barewo was the treasurer. The money was given for building of teachers houses and other school activities. He agrees that he did not attend Board meetings because he was not happy with the school administration. He says he was not informed of Board Meetings.
    
22. The Record of Interview was tendered by consent. The Bank Statements were tendered as part of the Record of Interview. The accused admits that receiving the funds. That the money was for school infrastructure and school activities. To withdrawing the monies with Grassford Sagena. She stated that she had acquittals for the money but was not able to produce it to police because she was locked out of her office until she was transferred to another school.
    
23. The accused remained silent.
    
24. It is settled law that no inference of guilt should be drawn when an accused person remains silent. It is the State’s burden alone to prove the elements of the offence. The only effect of remaining silent is that the State’s case remains uncontradicted. However, this does not mean that the Court automatically accepts the State’s case and convicts the accused. The evidence by the State is still subjected to analysis with the application of relevant principles in law on the assessment of witnesses such as the application of common sense and logic, breaches in the rule of Browne v Dunn (1893)^[1] elaborated in Kitawal v State [2007]^[2] and whether it has been discredited in cross examination: see The State v Tom Morris [1981] PNGLR 493; Jaminan v The State (No 2) [1983] PNGLR 318 and Paulus Pawa v The State [1981] PNGLR 498.
    

Findings

25. There is no principle in law that requires me to accept or reject the whole of witness evidence. I may accept some parts and attach the appropriate weight and may reject other parts.
    
26. There is no dispute that Glassford Sagena was the chairman of the School Board when the K50, 000.00 was deposited in 2018 and later withdrawn between 23^rd November 2018 and 22^nd January 2019.
    
27. There is also no dispute that Faith Ivory and Glassford Sagena signed for the withdrawals.
    
28. I ask, what was the purpose of the funds?
    
29. Terence Alban’s evidence is not relevant as he was not a member of the school board during the relevant period. There was no evidence lead as to how he knew the purpose of the funds other than being present at the cheque presentation ceremony. I find that his evidence of the purpose of the cheque is hearsay evidence.
    
30. Richard Sare was not a member of the School Board during the relevant period. He also was present in the presentation of the cheque ceremony. His evidence on the purpose of the cheque is also hearsay.
    
31. Jeremo Peremo evidence reveals that he was not an active member of the school board during the period of 2017 and 2018 and he was heavily engaged with the now Member for Popondetta Open. He may have been a member of the community and as he says a watch dog for the school, however he admits to not attending meetings. He was not even present for the cheque ceremony and says that he was in town and arrived when it was over. This to my mind indicates as he had said that he was not very involved in the affairs of the school. I therefore find that his evidence on the purpose of the funds to be hearsay evidence and do not accept his evidence as he was not involved in any activities of the school and was not present during the presentation of the cheque ceremony.
    
32. The accused has remained silent. In her record of interview, she states that the funds were for infrastructure and student administration. That she had acquittals from the money but was locked out of her office until she was transferred to another school. This was an explanation available to the State.
    
33. I consider the evidence of Terence Alban and Richard the exception to the hearsay rule in that both were present during the presentation of the cheque ceremony. That is, I accept that a statement was made of the purpose of the cheque.
    
34. Pastor Jimmy Barewo’s evidence is consistent with the accused answers in the Record of Interview. The effect of tending a document by consent is that materials contained are accepted without further proof: see section 589 of the Code for the legislative basis and Davinga v The State [1995] PGSC 11; [1995] PNGLR 263 for the case authority.
    
35. The monies were District Support Infrastructure Program (DSIIP) Funds. There are established process and procedures set by the relevant legislations for the obtaining of such funds. It was important for the State to provide as evidence the financial documents to establish the purpose of the funds or to call relevant witness from the District Administration. This was not done.
    
36. In the absence of the relevant financial documents, I accept that the funds as according to Pastor Jimmy Barewo and ROI, the funds were for school infrastructure and other school activities.
    
37. Was the K50, 000.00 applied to school infrastructure and school activities?
    
38. The State did not present any evidence as to what happened to the monies.
    
39. The witnesses agree that there have been no new classrooms or teachers houses. However, the witnesses are Board Members. None of the teachers or even the Deputy Head Teacher were called to verify or refute whether any monies were applied to school activities or equipment.
    
40. The accused in her Record of Interview stated that she had acquittals. It was important for the State to call an officer from the District Administration or the Member for Sohe Mr. Henry Jons Amuli to verify whether there was an acquittal. This was not done.
    
41. Additionally, the amounts withdrawn indicate that the withdrawals were not whole values. Common sense and logic dictate that the expenditure was for payment of certain items as opposed money being given to individuals.
    
42. The witnesses agree that there was a carpenter that was engaged but he was chased off by angry villagers. I can reasonably infer that a carpenter was paid to do work.
    
43. In a circumstantial case, the State must prove that the guilt of the accused is the only reasonable inference: see Paulus Pawa v The State [1981] PNGLR 498. There are available other legitimate reasonable inferences as to the application of the monies which have not been excluded.
    
44. Finally, the indictment specifically charges that the accused misappropriated monies to the use of Glassford Sagena, Ethel Freda Toreka, Johah Panuel, Augustine Bawani and Dorothy Oraka. The State did not present any evidence of any of these persons receiving monies from the accused.
    
45. From the evidence as such, I can not be satisfied on the required standard that the accused abuse her office for gain and that she misappropriated the monies to her use and the use of Glassford Sagena, Ethel Freda Toreka, Johah Panuel, Augustine Bawani and Dorothy Oraka.
    

Conclusion

46. Verdict of Not Guilty is returned for count 1 and 2 of the indictment for the charges of abuse of office under section 92(1) (2) and misappropriation under section 383A(1)(a) of the Criminal Code.
    

Orders

47. The Orders of the Court are as follows:
    
    1. The accused having been charged with abuse of office under section 92(1) (2) of the Criminal Code is found not guilty and is discharged from the charge.
       
    2. The accused having been charged with Misappropriation under section 383A(1)(a)(2)(d) of the Criminal Code is found not found guilty and is discharged from the charge.
       
    3. Bail is refunded.

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence

^[1] 6R 67, H.L.
^[2] PGSC 44; SC927