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State v Heni [2022] PGNC 607; N10346 (23 February 2022)

N10346

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 340 OF 2018

THE STATE

-v-

BILLY HENI

Lae: Polume-Kiele
2021: 17^th February, 3^rd March, 12^th & 30^th April,1^st July, 2^nd August, 1^st & 24^th September,1^st, 11^th & 15^th October, 29^th November
2022: 23^rd February

CRIMINAL LAW – Verdict – Trial - Charges of stealing K50,450.00 from employer Lae Golf Club Incorporated – Systematic false accounting and stealing over time – Offence committed by a trusted employee. Deliberate acts of stealing & deliberate acts of false accounting - Only logical and reasonable inference from accepted primary facts support inferences of stealing and fraudulent accounting by the accused -Section 372 (1) (7) (a) and (10)-Verdict of guilty returned.

Cases Cited:

Papua New Guinean Cases
The State v Karakabo [2012] N4897
State v Sasoropa (No.1) (2004) N2565
State v Wilfred Timon Bai [1980] PNGLR 216
The State v Paka [2016] PGNC 425; N6914
The State v Kevin Anis & Martin Ninigan (2003) N2360
The State v Cosmos Kutau Kitawal & Anor No 1 (2002) N2266
Garitau Bonu and Rosa Bonu v The State (1997) SC528
Peter Waragu Waranaka v Gabriel Dusava (2009) SC980

Andrew Palili v The State (2006) SC848

Overseas Cases
Browne v Dunn (1893) 6 E.R. 67

Counsel
Ms. Susan Joseph, for the State
Mr. Colman Boku, for the Accused

RULING ON VERDICT

23^rd February, 2022

1. POLUME-KIELE J: On 22 September 2021, Ms. Langtry presented an indictment against the accused, Billy Heni with one count of stealing contrary to s372 (1) (7) (a) and (10) of the Criminal Code Act (Ch No 262).
   
2. Section 372 states:
   

“372. STEALING.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

(2) ...

(3) ...

(4) ....

(5) ...

(6) ...

(7) If the offender is a clerk or servant, and the thing stolen–

(a) is the property of his employer; or

(8) ...

(9) ...

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

(11) ...

(12) ...

he is liable to imprisonment for a term not exceeding seven years”.

3. On arraignment, the accused, pleaded not guilty to the charge of stealing contrary to s 372 (1) (7) (a) and (10) of the Criminal Code. He did admit however to stealing a cheque for an amount of K2,000.00, the property of the Lae Golf Club Incorporated on 18 July 2017.
   
4. Trial commenced on 22 September 2021 and the Defence closed its case on 24 September 2021; a course of 4 days.
   
5. Submission on verdict was heard on 15 October 2021 and I reserved my decision on verdict to a later date.
   
6. This is my decision on verdict.
   

The allegations raised by the State

7. The State’s case is that between 1 May 2017 and 18 July 2017, the accused, Billy Heni was employed as the Accounts Payable Clerk, with the Lae Golf Club Incorporated (Lae Golf Club). During this period, he used his position as the Accounts Payable Clerk and cashed 14 individual cheques of varying amounts from the account of the Lae Golf Club BSP Bank Account No. 1000386630 and referred to in Exhibit “EE”. Further and in addition, the State also alleges that between 1 May 2017 and 18 July 2017, the accused, Billy Heni also using his position as the Accounts Payable Clerk with the Lae Golf Club Incorporated, did on a daily basis collect cash consisting of daily takings (cash flow) from the Pokies machines for banking. The daily cash taking is of varying amounts which the State alleges that the accused has not accounted for a sum of Fifty Thousand, Four Hundred and Fifty Kina (K50. 450.00), the property of the Lae Golf Club Incorporated. This amount of K50,450.00 was stolen over time by the accused, Billy Heni for his own use. The cashed cheques and cash daily takings collected from the Pokies Machine are raised for purposes of replenishing the Pokies Cash Float for use at the Pokies Game Machines operated by the Lae Golf Club Incorporated. The accused, Billy Heni is charged with one count of stealing under s 372 (1) (7) (a) and (10) of the Criminal Code
   

Issues Arising During Trial

8. The issue identified for determination during is:
   
   • Whether the accused, Billy Heni, between the 1^st of May 2017 and the 18^th day of July 2017 whilst employed as an Accounts Payable Clerk, with the Lae Golf Club Incorporated stole cash and cheques of the value of Fifty Thousand, Four Hundred and Fifty Kina (K50, 450.00), the property of the Lae Golf Club Inc.?
     

The accused raised a defence of general denial

9. The accused denied the charge of stealing cash and cheques of the value of Fifty Thousand, Four Hundred and Fifty Kina (K50, 450.00), between 1 May 2017 and 18 July 2017. He did admit however to stealing and cashing a cheque to the value of Two Thousand Kina (K2,000.00) on 17 July 2017.
   

The State's case

10. The State’s case is that between 1 May 2017 and 18 July 2017, the accused, Billy Heni, in his employment as an Accounts Payable Clerk with the Lae Golf Club Inc., stole cash and cheques to the value of Fifty Thousand, Four Hundred and Fifty Kina (K50, 450.00), the property of the Lae Golf Club, his employer. The sum of K50, 450.00 has not been recovered.
    

Evidence for the State

11. The State called four witnesses, namely, Mr. Phil Hommelhoff, Ms. Janet Kakapu, Mr. Raybon Tamegal, and Sergeant Michael Alluy to give oral evidence to substantiate their allegations. The witnesses were each cross-examined on their evidence.
    
12. In addition, the State also relied on a number of documentary evidence which were tendered into Court through its witnesses and by consent.
    

(A) Documents tendered into evidence.

13. The documents tendered into evidence by consent consisted of the following:
    

• Statement of Mr. Phil Hommelhoff dated 18 August 2017. In which he states that he is the President of the Lae Golf Club and one of the four signatories to the Lae Golf Club BSP Bank Account No. 1000386630 which is referred to and marked as Exhibit “A”. Any two of the four signatories can sign.
  
• Copies of Cheque which were raised for encashment to which he is a co-signatory. These cheques were cashed by the accused. Copies of the said cheques are marked and referred to as Exhibits “B”, “C”, “D”, “E”, “F”, “G”, “H”, “I”, “J”, “K”, details of which are set out in the Table 1 of this judgment.
  
• Copies of receipts of the daily takings which are marked as Exhibits “L”, “M”, “N”, “O”, “P”, “Q”, “R”, “S”, “T”, “U”, “V”, “W”, “X” and “Z” showing discrepancies in the daily takings which are unaccounted for. Details are set out in Table 2 of my judgment.
  
• Copies of Cheque Requisitions: For period of 1 May to 18 July 2017. These requisitions were raised solely to cover for the pokies float. The details of these requisitions are as per the alleged dates of the offending. Exhibit “DD” which are set out in Table 3 of the judgment.
  
• Copy of the letter written by Janet Kakapu dated 17^th August 2017 addressed to the Lae Golf Club Committee regarding fraudulent acts alleged against the accused, Billy Heni, marked as Exhibit “EE”.
  
• Statement of Raybon Tamegal dated 18^th August 2017. He was the Vice President of Lae Golf Club and a signatory to the Lae Gold Club BSP Bank Account No. 1000386630. Exhibit “HH”. He identified the cheques numbers which he co-signed as a signatory to the account, indicating the amount and date of the cheques. The copies of the said cheques also bore the signature of the accused as the person who cashed and collected the cash from the teller at the BSP Bank, Lae Branch. Table 4 below sets out the details of Cheques which he co-signed.
  
• Statement of Sergeant Michael Alluy dated 19^th December 2017. He is the arresting officer, and his statement is in relation to the offence and investigations including the Record of Interview against the accused Billy Heni. Exhibit “II”
  
• Record of Interview dated 19^th of December 2017, between the Investigating Officer, Sergeant Michael Alluy, the accused, Billy Heni and the Corroborator, Senior Constable Richard Kue. Exhibit “JJ” in the pidgin version. The ROI was conducted in Pidgin Language between the accused, the Investigator and corroborator Senior Constable Richard Kue. Exhibit “JJ2” is the English translation. On page 40, the second last question he confirmed he had in his possession K2000 cash, and that money was purposely for float.
  
• Statement of Policeman Senior Constable Richard Kue dated 19^th December 2017. Outlined the allegations against the accused Billy Heni and his evidence as to the manner in which the ROI was conducted. Exhibit “KK”.
  

B. Oral Evidence for the State

14. Ms Joseph for the State in leading the State’s evidence, called the following witnesses:
    

(1) Philip Hommelhoff

15. Mr. Hommelhoff gave sworn oral testimony and was cross-examined on his evidence. In his testimony, Mr. Hommelhoff states that he is originally from Melbourne, Australia but has lived in Lae for 20 years. He is a Building Contractor and businessman based in Lae. He is the current President of the Lae Golf Club Incorporated (Inc). He volunteers in managing the Lae Golf Club Inc (“the Lae Golf Club”) and its’ operation. He gave evidence that the Lae Golf Club has a General Manager, who has overall responsibility for the management of the Lae Golf Club. The Lae Golf Club also has Bank Account No. 1000386630 with the Bank of South Pacific, Lae. He also testified further that he is one of four persons who are signatories to the Lae Golf Club Incorporated Bank Account No. 1000386630. He states further that “any two” of the four signatories can sign a cheque and he identified (Document Nos: 50 to 54 in the Court file) as copies of the BSP Authorisation Forms listing the Authorised Officers of the Club who are signatories to the Account. The details of the Bank Account are contained in his statement that he gave to the Police dated 18 August 2017. a copy of his statement is tendered into evidence by consent and marked as (Exhibit “A”).
    
16. Mr. Hommelhoff in his testimony states that the reason he is in Court today is that between 1 May 2017 and 17 July 2017, ten cheques which he co-signed were cashed by Billy Heni. Billy Heni at that time was employed as the Accounts Payable Clerk by the Lae Golf Club Inc. The copies of these cashed cheques are marked and referred to as Exhibits “B”, “C”, “D”, “E”, “F”, “G”, “H”, “I”, “J” and “K” of the State’s evidence, which has been tendered by consent into evidence. In his explanation as to how the cash payment had been authorised, Mr. Hommelhoff states that the Lae Golf Club has earmarked a sum of K2,000.00 as Pokies Float which is a cash flow meant to be replenishment for the cash float for the Pokies Game Machine float. In that, there is a daily cash float of Two Thousand Kina (K2,000.00) for the pokies machine which the Club operates in its premises. He states further that at the relevant time, Billy Heni was responsible for raising the cheque requisitions request for the pokies float when there is a short fall in the receipts generated from the daily takings from the Pokies games of the previous night.
    
17. Mr. Hommelhoff in his evidence, identifies Billy Heni, who he states is the fellow sitting opposite him in the dock as the person in charge of raising the cheque requisitions for the Pokies float. In addition, Mr. Hommelhoff states that sometime on or about 18 July 2017, Billy Heni, the Accounts Payable Clerk had cashed a cheque No. 108182, (this cheque had been signed by two signatories but had no amount written on it for encashment). When it was discovered that Billy Heni, had cashed the cheque for an amount of K2,000.00, on 18 July 2017 without authorisation, he was confronted as to why, he had cashed this cheque when he was not authorised by the Club. The accused, Billy Heni then admitted to the cashing of Cheque No. 108182 of the value of K2, 000.00 without authorisation. This query and the accused’s admission then led to an investigation being conducted of the audit of the cheque requisition requests and cash flow from the daily takings raised during a game of Pokies at the Club. The audit was carried out by the Accountant, Ms Janet Kakapu and in her report made to the police, she states that sometime between 1 May 2017 and 18 July 2017, the Club’s employee, Billy Heni has taken cash money of the value of K50, 450.00, the property of the Lae Golf Club Inc. The sum of K50, 450 is unaccounted for.
    
18. Mr. Hommelhoff identified, the accused, Billy Heni who is sitting directly opposite him, as the person who during his employment as the Accounts Payable Clerk with the Lae Golf Club Inc. He testified further that the accused, had raised and cashed 10 cheques which he had co-signed for encashment. The value of the 10 cheques amounts to a sum of Twenty-Six Thousand One Hundred and Fifty Kina (K26, 150.00), copies of which are marked and referred to as Exhibits “B”, “C”, “D”, “E”, “F”, “G”, “H”, “I”, “J” and “K” of his evidence, details of which I have set out in Table 1 of this judgment.
    
19. Mr. Hommelhoff also gave evidence that the way in which this activity was carried out was through the raising of a Cheque Requisition Request which were prepared by the accused, Billy Heni in his role as the Account Payable Clerk where he would ask for a Pokies Float Used and Refund Request for purposes of a replenishment of the Pokies Float. He states that the cash float for this activity is a daily amount of Two Thousand Kina (K2,000.00). However, Mr. Hommelhoff testified that really, it was not necessary to raise any cheques to cover for any cash short fall because, the Daily Takings (receipts) generated at the Pokies Machine games were sufficient cover for the cash flow (float) for the next day daily operations. But Billy Heni had gone ahead and raised the 10 cheques for encashment in any event.
    
20. Mr. Hommelhoff also testified that Billy Heni in this case, had personally cashed and collected the cash from the bank. He personally signed his signature on the back of each and every cheque he cashed at the bank. As to how or the method in which these activities were executed, Mr. Hommelhoff referred to and identified 10 cashed cheques which were signed by him as per the Cheque Requisition Request made by Billy Heni for purposes of reimbursement of the Pokies Float Used and Refunds for the dates which are set out in Table 1 below, which I have taken the liberty to do for purposes of this judgment.
    

Table 1: Copies of Cheque Requisition for Pokies Float: 1 May to 18 July 2017

21. Mr. Hommelhoff testified that the 10 cheques which he co-signed were cleared and ready for encashment by Billy Heni. In all these 10 cheques, it is Billy Heni who cashed, signed for and received the cash. His signature is on the back of each of the 10 cheques. The details of the 10 cheques are as set out in Table 2 of this judgment. These are:
    

Table 2: Copies of cheques which Witness, Phil Hommelhoff is co-signatory.

22. Mr. Hommelhoff also gave evidence that apart from the cheque encashment, the accused, Billy Heni also did not account for the cash which is generated by Pokies Machine Games in its Daily Takings. In that any cash collected during the daily operations of the Pokies Machine Games were not reconciled with the amount of money for which the accused had raised cheque requisitions as replenishment which he had cashed as Pokies Float used and Refunds for the next day’s operations as indicated in Table 1.
    
23. In this case, the cashed cheques and the cash flow raised in the Pokies Machine Games daily takings did not add up and not reconciled.
    
24. Mr. Hommelhoff also gave evidence that the daily takings in fact disclosed that at various times, there were sufficient cash flow made to cover for the K2,000.00 Pokies Float, however, Billy Heni requested for cheques to be raised in any event. Whilst the cashed cheques were meant to be used to offset any shortfall that the Cashiers managing the Pokies Machine encounter on a daily basis; it is now evident that the encashment of the 10 cheques were unnecessary. The cash is unaccounted for. The accused, Billy Heni is the only person who knows what has become of the cash that came to his possession and custody.
    
25. Mr. Hommelhoff also gave evidence that according to the spread sheet provided by the Cashiers at the Pokies Machine for several days of operations, these sheets disclosed that at certain days, there were sufficient cash flow to cover for the Pokies Float of K2,000.00 for the next day’s operation. In regard to this testimony, Mr. Hommelhoff identified 11 copies of several receipts amongst a number of receipts which the Cashiers had provided, and these details are set out in Table 3 below. In this regard, the receipts for the Daily Takings for the months between 1 May 2017 and 18 July 2017 do show that the request for encashment of cheques to cover the Pokies Float was deceitful.
    

Table 3: Copies of Pokies Daily Takings, unaccounted for.

26. On cross-examination, Mr. Hommelhoff reiterated that there exist discrepancies in the banking of cash or revenue generated from the Pokies games and these are indicated for the period: 1 May, 3 May, 5 May, 13 May, 14 May, 24 May, 28 May 2017 and 5 June, 18 June, 21 June, and 6 Jul 2017. Here, Mr. Hommelhoff gave evidence that Pokies are computerised and controlled by the PNG Gaming Board. Hence, the revenue or cash generated during the daily operations belong to the Gaming Board. The accused, Billy is the only person that has access to the actual cash that is generated by the Lae Golf Club Pokies Machines. In regard to this case, Mr. Hommelhoff stated that he was unaware that there were in fact cash available to cover for the Pokies Float so when requests were made for cheques requisitions, he did sign the cheque believing that these requests were genuine. This is because the Club has to cover any short falls which they manage and covered through the Pokies Float. The shortfall is set at an amount of K2,000.00 daily.
    
27. Mr. Hommelhoff in his evidence confirmed that the accused, Billy Heni is in charge of the requisition of cheques, and he is the only one person who signed for the cash. The accused, Billy Heni did almost all these cheques himself.
    
28. In addition, Mr. Hommelhoff did state that it is not uncommon to have pokies float daily. At that relevant period, the Club had a General Manager, a Mr. Greg Fennel but had left for Australia in 2020. As to who was responsible for the preparation of the Cheque Requisition, Mr. Hommelhoff did say that all requisition were prepared by the accused, Billy Heni at that time as he was thought to be a trusted employee. However, it now appears that this is not so.
    
29. On re-examination, Mr. Hommelhoff confirmed that upon discovery of the discrepancies in the accounts of the Club, a reconciliation of the accounts of the Club was carried out by the Accountant. Her reconciliation disclosed that a sum of money was unaccounted for. This sum included the amounts for which cheque requisitions were raised and authorised as disclosed in his statement to the police and the unaccounted cash flow which were generated during the daily takings made during a day’s games at the Pokies club.
    
30. Mr. Hommelhoff confirmed that all requisitions were prepared by the accused, Billy Heni. The accused, Billy Heni is also responsible for the encashment of the cheques. Billy signed and received the cash himself. Mr. Hommelhoff also confirmed that none of the cash has appeared in the records of the Club or were returned to the Club. It turns out that these requisitions were fraudulent and unnecessary.
    

(2) JANET KAKAPU

31. The second witness called by the State was Ms Janet Kakapu. Ms Kakapu gave evidence under Oath that she was the Accountant employed by the Lae Golf Club Incorporated at the time of the alleged offence. She gave evidence that she commenced employment with the Lae Golf Club sometime in September 2016. She has however since left employment with the Lae Golf Club. She left in 2019. She testified that she is an Accountant by Profession and has been for the last twenty years. She is currently employed with Guard Dog Security.
    
32. Ms Kakapu in her evidence stated that her day-to-day activities includes invoicing, purchasing, receipting and general accounting duties. Ms Kakapu recalled that sometime in 2017, she submitted a fraud result involving Pokies Float which she discovered during a routine work activity when she discovered that a cheque No. 108182 dated 18 July 2017 which had been signed for an amount of K2,000.00 had been cashed by Billy Heni without authorisation. This particular fraud, however, involves the Pokies Float of an amount of K2,000.00 which cash is made available daily for purposes of running Pokies Machines, which the Club operates in its premises. She states further that it is the cashed cheques for amounts which were meant to be the replenishment of the Pokies Floats including the daily takings which were stolen. In most of these cases, it was discovered that although there were in sufficient amounts of cash in the sum of K2,000.00 in hand, Billy Heni had however requested for a further K2,000.00 or other amounts for the replenishment of the K2,000.00 Pokies Float. These activities went unnoticed until the matter came to light, when it was discovered that Billy Heni had cashed an already signed cheque which he had himself wrote an amount of K2,000.00 and cashed it himself without having to prepare a cheque requisition request for. When the matter was reported to the management and they approached Billy Heni, he admitted to stealing the cheque and cashing it and he returned the sum of K2,000.00. However, when he was asked if he had made any other transactions prior, he denied this.
    
33. In any event, Ms Kakapu was then led through her evidence and referred to Documents No. 7 and 8 (Exhibit “EE” on the Court file. She then identified document number 7 (“Exhibit EE”) and she described the document as the result of the internal account audit which she had conducted. In her audit, it shows discrepancies for various floats between the 2 May 2017 and 17 July 2017. From that report, she was able to identify that an amount of Fifty Thousand, Four Hundred and Fifty Kina (K50, 450 was stolen. The money was not recouped. The audit contained details of a report of a reconciliation of the cashed cheques and daily pokies takings amounting to a sum of Fifty Thousand, Four Hundred and Fifty Kina (K50, 450) as indicated in Table 3 below which cash and cashed cheques were not accounted for by Billy Heni. Ms Kakapu also testified that all the banking were done by the accused, Billy Heni. He is the only person who handled the encashment of cheques and collections of cash receipts from the daily takings. No one else is involved. Only, the accused, Billy Heni.
    

Table 4 (Exhibit “EE”)

34. In her evidence, Ms Kakapu explained that the process of requisitions for pokies float is that the accused identifies how much is required and brings the requisition to herself, she signs off on the requisition based on what the accused told her. Billy Heni with the necessary paperwork in hand, would then seek out two signatories to the Bank Account for authorisation. She stated that Mr. Hommelhoff is one of the signatories including others, but any two signatories can sign. She however checks all the cheque requisition and signs off on it prior to any two of the four signatories to sign. The Cheque Requisitions requests are meant for replenishment of the Pokies Float. Ms Kakapu also gave evidence that she does not check the floats as that is the accused responsibility. After she signs off on the requisitions, the accused takes the cheque to the signatories for their signature.
    
35. In this instance, Ms Kakapu testified that all the cashed cheques proceeds, and cash went missing. They are unaccounted for.
    
36. Ms Kakapu testified further that the accused, Billy Heni whilst employed as accounts clerk was stealing money. Basically, the reporting, cashing of cheques and collections of monies are handled by the accounts payable clerk, who at the material time was the accused, Billy Heni. She gave evidence that the accused Billy admitted to trying to steal the K2000 and when the accused, Billy was asked further as to how long this has been going on and the accused admitted that there were some other transactions similar this one. Ms Kakapu in her evidence states that no float monies had been put in the cash tins for later use or ever put back to the accounts. All the monies were unaccounted for. Furthermore, as referred to and marked as Exhibit “L”, (Document No. 60) on the Court file, this is an example of a Pokies daily takings spread sheet dated 2 May 2017. This spreadsheet is monitored by the Pokies Office Staff. This document shows that the daily pokies takings for this day was in the sum of K1, 930.00. This amount was sufficient to cover for the next day’s operation, however, the accused; Billy Heni had prepared a Cheque Requisition Request for a sum of K2,000.00 on 2 May 2017, a cheque which he personally cashed and collected the cash. This encashment for the replenishment of the Pokies Float was really not necessary. It was fraudulent. This activity was repeated in several other transactions which has now been discovered and reported.
    
37. In cross-examination, it was put to the witness, Ms Janet Kakapu that as part of the reconciliation process, it is her who is responsible for the handling of the cash to which she denied this suggestion and said that the ‘requisition’ and ‘reconciliation’ are two different things. In that she is involved with the raising of cheque requisitions whilst the reconciliation of cash floats is solely the accused, Billy Heni, and the cashiers.
    
38. It was then suggested to her that since various amount were raised, therefore there has to be some basis to raise such varying amounts. In response, Ms Kakapu stated that the cheques were raised according to the day’s pokies takings and floats. She then referred the Court to Document No. 160 on the Court File which contained details of a requisition request made for a daily Pokies Float. Document No. 160 here is a copy of a Cheque Requisition Request dated 9 May 2017, which requisition is being payment for Pokies Float used and Refund dated 9 May 2017 for a sum of K1,800.00. and a copy of a cheque for the said amount of even date. I must point out that Document No. 160 is ‘marked as Exhibit “DD” in Item No. 6 of Table 1 in this judgment.
    
39. When was it suggested to the witness that anyone could have stolen the money? That is, the Supervisor or the cashiers; the witness, Ms Kakapu denied this suggestion and said that this suggestion would be impossible because the supervisors and the cashier compile their reports daily and put the money into the tin. The last person to have access to this cash is the accused Billy as he is the only person who handles the cash, does the reconciliation, banking and where there is a short fall, does the requisition for the replenishment of the short fall in the cash flow.
    
40. At this juncture, the defence put to the witness that perhaps, a wrong person has been charged. The witness, Ms Kakapu, in response did not agree. She told the Court that she after her audit and investigations, there is enough evidence to show that the accused, Billy Heni in his capacity as the Accounts Payable Clerk, he alone is responsible, and he fully handles the monies on the alleged dates of each transaction.
    
41. Ms Kakapu in her evidence confirms that when a requisition is prepared, she normally ticks off that the request is for a legitimate purpose and this is checked against the daily takings sheets and that its purpose is to replenish the cash float for the pokies, to ensure that there is sufficient cash flow for the next day’s operation. The cheque requisition is the responsibility of the Accounts Payable Clerk not the cashiers. Overall, the alleged monies which were meant to replenish the daily Pokies Float went missing, Although it is supposed to go the bank or the cash tin, The records captured by the accounts did not show on the daily pokies taking, the cash tin or the bank statement.
    
42. It was put to her that she was lying to the Court, she disagreed. The witness is stating the facts, supported by documented evidence as far as she knows. It was put to her that she never conducted any investigations; the witness told the Court that if there are no investigations, there would be no documentations and there is no reason as to why these documents are now before the Court. Ms Kakapu maintained that the accused, Billy Heni admitted to her on the 17^th of July 2017 of attempting to steal the K2000 and further from her report. It was put to her that she gave evidence that the accused admitted to her, she agreed. The accused admitted that there’s several others as well hence the witness had to do an internal accounts investigation to find out how many more of those transactions, the details of which have already been provided before this Court in both her evidence and that of Mr. Hommelhoff.
    

(3) RAYBON TAMEGAL

43. Mr. Raybon Tamegal testified that he is a lubricants engineer employed by Islands Petroleum. He has held this position for the last 12 years. He states that he has been a member of the Lae Golf Club since 2008. He holds the position as the Vice President of the Lae Golf Club. He further states that he recalled giving a statement to the police in 2017. His statement was in relation to an allegation of misuse of funds of the Lae Golf Club. He testified that his statement was in relation to the cheques he co-signed which is the subject of allegation raised against the accused, Billy Heni.
    
44. Mr. Tamegal in his evidence also referred to and identified ten (10) cheques which are marked and referred to as (“Exhibit HH”), in his statement to the police (Document No. 32) are the ten of the cheques which he co-signed. The ten (10) cheques were cashed and picked up by the accused, Billy Heni. The accused, Billy Heni has signed all the cashed cheques and his signature is on each of the cashed cheques as the person who cashed and collected the cash from the bank.
    

Table 5 – Details of cheques which Mr Tamegal co-signed.

45. Mr Raybon Tamegal was then cross-examined on his evidence as to the reason for signing off on the said cashed cheques and he told the Court that his role is to sign cheques. As in relation to the process of accounting, he trusts the staff to do it honestly, so when the cheques were brought to him to sign, he just signed off.
    
46. He was not re-examined on his evidence.
    
47. Overall, Mr. Tamegal gave evidence that he co-signed several cheques which the accused, Billy Heni had brought across to him for signing. As to how those cheques were used, that is the matter that is now before the Court.
    

(4) Sergeant Michael Aluy

48. Sergeant Michael Aluy gave sworn evidence under oath. In his sworn evidence, he stated that he is investigating and arresting officer. He is a police officer, attached to the Lae Provincial Police Headquarters. He has been serving as a police officer for 40 years. Sergeant Aluy gave evidence that as police officers, they receive complaints from various people. These complainants are received through correspondences or by word of mouth (verbal) at the Police Station. Once received, police officers are then assigned to conduct their respective investigations on the complaints registered in the Daily Occurrence Book kept at the Police Station. For this case before the Court, he is the investigating and arresting officer. Here, it is the accused, Billy Heni who was alleged to have stolen more than K50, 000.00 from the Lae Golf Club.
    
49. Sergeant Aluy further identified his statement dated the 19^th of December 2017 as Document Numbers 34 & 35 (“Exhibit “II”) and Document Numbers 38-43 (“Exhibit JJ”) as the accused Record of Interview between himself, the accused Billy Heni and the corroborator, it was conducted in the pidgin language and translated into English. The English translation is marked as Exhibit “JJ2”. Sergeant Aluy testified that the accused was read his rights, cautioned, and understood his rights. He further testified that the ROI was administered without any threats of assault, inducement, or false promises. He also testified that the accused, freely exercise his freewill and answered questions put to him willing. Sergeant Aluy also gave evidence that copies of the cashed cheques were shown to the accused, Billy Heni and he was given copies of the signed and cashed cheques. The ROI commenced at 9.20 a.m. and concluded at 10.12 a.m. Furthermore, the accused, Billy Heni signed the ROI willingly. The corroborator, Senior Constable Richard Kue also signed the ROI, a copy of his statement is marked as Exhibit “KK”, which had been tendered into court by consent.
    
50. As regards, the procedure in carrying out investigation into the alleged offence, Sergeant Aluy stated that where all witnesses are available, it would be necessary to call and interview all of them. However, in this present case, most of the witnesses have either been relocated or are no longer in employment with the Club. Therefore, he was not able to interview all of the persons who could assist with his investigation. However, he is confident that his investigations are in order and thus the charges.
    
51. In cross-examination, it was put to Sergeant Michael Alluy that he acted upon the complaints by Lae Gold Club in arresting the accused, Billy Heni and he replied yes. It was then put to him that he did not conduct his own investigations. To which, Sergeant Aluy answered that he is not a Private Investigator. Like all the cases, he acted as a policeman based upon the complainant of Lae Golf Club registered at the Lae Police Station. The outcome of his investigation are all the allegations that are raised against the accused, Billy Heni, now before the Court.
    
52. The State then closed its case.
    

ORAL EVIDENCE FOR THE DEFENCE

53. At the close of the state’s case, the defence submitted that it would call its only witness, the accused, Billy Heni to give evidence in his defence.
    

(A) Billy Heni

54. The accused, Billy Heni gave sworn oral evidence from the dock. The evidence was given in the pidgin language initially but later during the course of the evidence, the accused decided to give evidence in the English language. The accused, Billy Heni in his evidence, stated that he was employed by the Lae Golf Club as an Accounts Payable Clerk.
    
55. In his evidence, the accused stated that he recalled the allegation that he was cashing cheques and using it for his own use. However, he said further that he did not sign cheques. He states that he only prepares requisition, give it to Janet to check and then takes it to the signatories for signing. The accused also stated further in his evidence that he recalled raising requisitions for the cash float of varying amounts for the Pokies float and bringing it to his bosses to approve and having the cheques cashed. He states further in his evidence that he took the requisitions to Janet, the accountant to approve. He writes the amount for the cheques and takes it to the authorised signatories to sign. After the bosses have signed the cheques, he either travels with Mr Fennel, the General Manager of the Lae Golf Club, or the driver to the bank to cash those cheques. He states that he returned the money to the office.
    
56. In addition, and further to his evidence, the accused said that he normally goes to the bank at about 1.00 p.m. to 3.30 pm. The cash he receives from the bank are meant to cover the following: K200 for the bar, K2,000.00 for the Pokies and K15,000.00 which is kept in the safe to cover for Eftpos payments which patrons have access to. Further, Billy also gave evidence that he checks the nightly daily takings in the morning and thereafter removes the cash for banking and or if there has been a big win during the night’s Pokies game, he will use the cash float to pay any winnings. He states here that when he checks in the morning, he also does the reconciliation of the accounts with the pokies cash in the cash tin and if there is no float, this is when he prepares a cheque requisition request which is accompanied by an Eftpos receipts where there is a win of over K2,000.00. If there is no money, then he keeps the receipts for future payment.
    
57. He gave evidence that after cashing the cheques, he returned to the office, and he gives the cash to the Pokies girls for their daily operations at the Pokies Machines. This cash is given to the Cashiers normally at around 4.00 p.m. prior to the opening hours of the Pokies operation at the Club. The cash floats are allocated to the Cashiers on a daily basis.
    
58. In his evidence, the accused tried to explained that the term “float” which he states that two sets of floats. One set is for an amount of K2,000.00 which is for the bar. The other is for a sum of K15,000.00 which is kept at the top shelf (all in K20.00). This float is reserved for members. In any event, I do not understand why this figure of K15,000.00 is brought up as it is the first time that this issue is raised.
    
59. The accused in his explanation of the processes in requesting for the float, told the Court that every morning at 8:00 a.m. when he arrives at work, he gets the keys for both the safe and float tin and checks the daily takings. He then checks and confirms takings for the previous night and if the float is still there, he gives it to Janet. However, if there is no float the accused then makes requisitions for new float. He then attaches any documents that comes with the takings and record them under the requisition. If there is no money to pay out that night, then they attach the receipt and gives it to Janet for approval.
    
60. The accused, in his evidence said that on the 19^th of July 2017 there was a cheque which is already signed by two signatories, so he got the cheque and wrote K2000 on it. He then went to the bank and cashed that cheque. When he returned Janet and Mr Fennel were waiting for him in her office, they questioned him regarding that cheque. At first, he denied in front of Mr Fennel that he had already cashed the cheque. However, after Mr Fennel left, he admitted to Janet that he took the money. The accused confirmed that for that cheque, there was no requisition raised.
    
61. He confirmed that for all other cheques he prepared the requisitions, and all these were all pass on to Janet for approval. After approval, he got the cheques signed and then he went to the bank, and he cashed them, but he denied the stealing of the cash. He admitted however to stealing only the cheque which he cashed in the sum of K2,000.00 dated 18 July 2017. The cheque of K2,000.00 dated 18 July 2017 is Cheque No. 108182
    
62. Upon cross-examination, the accused, Billy Heni confirmed that he was employed as an Accounts Payable Clerk with the Lae Golf Club in April 2017. He held that position for about 4 months. He has previously been employed as a payroll officer. He agreed with the State that his duty is to check the daily cash takings every morning from the pokies games and record it.
    
63. When put to him that if there was any a discrepancy or shortage, he would definitely be the person to pick that up; he agreed. It was further put to him that from the 1^st of May 2017 to the 18^th of July 2017 if there had been any other discrepancy in the daily cash takings, which he would have picked it up, or noticed, he answered in the affirmative. It was further put to him that he did not report those discrepancies to the management; the accused disagreed. He told the Court that he did report to Janet and the Manager every time there is a shortfall, he reports it. However, when it was suggested to him that if he had reported any discrepancies in the cash flow, he would have told his lawyer that story? He responded, “No”. Given his response, the State put to him that this is the first time, he is telling the Court and he answered: “Yes”. It was again put to him that given his responses, then the evidence that he has now given in Court are all lies; he replied: “No”.
    
64. In any event, given all the responses, the State then suggested to the accused that perhaps even if all he is saying was and is the truth? Would these matters be relayed to the Police or even his lawyers? His responses were that he did not tell the Police or his lawyers of these matters. In that event, it was then put to the accused, Billy Heni that if he did discover any discrepancies or short falls in the cash flow, he did not report these matters to the management or to the accountant, Ms Kakapu, and he did answer that he did not report any discrepancies or short falls in the cash flow in the daily takings. The accused, Billy Heni stated that he never reported any discrepancies in the daily takings.
    
65. At this juncture the accused told the Court that he no longer requires the assistance of the interpreter as he understands English and wished to have the trial conducted in the English language. Thus, the services of the interpreter were terminated, and trial continued in the English language.
    
66. The State’s case was again put to him that he was in court and heard evidence given by Ms Kakapu in which evidence was adduced which stated you the accused, Billy Heni admitted to steal some sum of monies from the Pokies Float? In response, the accused Billy Heni admitted to stealing a sum of K2,000.00 only. However, he admitted that he was responsible for raising cheque requisitions and that his signature is on the requisition request for cheques. He also admitted that after he consults with the spreadsheet for the Pokies daily takings, denied the allegation. The accused agreed that he is responsible for cheque requisitions, he prepares a cheque requisition request for cheques.
    
67. At this juncture, Ms Joseph then sought leave of court to present to the accused, Billy Heni, copy of a cheque requisition on page 155 of the Court file (“Exhibit DD”) which was shown to the accused, leave was granted, and Exhibit “DD” was handed over to the accused for identification. and he identified the document as a copy of a cheque requisition. When asked by the Court whether, this cheque requisition was checked by Janet Kakapu, he asked yes, and then when asked as to who prepared the document, he answered, “myself”?
    
68. As part of the cross-examination document number 59 (“Exhibit B”), which is a copy of a BSP Cheque. No.107809 dated 2/5/2017 for a sum of of K2000 was shown to the accused and then put to the accused, Billy Heni, that Document No. 59 (Exhibit B) is a copy of a cheque, which he cashed and signed? The accused, Billy Heni confirmed that the signature on the back of the said cheque was his signature. He confirmed that this cheque was one of the other cheques raised in these allegations. Again, the accused was shown document 157 (Exhibit “G”) a copy of a cheque No. 107826 dated 5 May 2017, for a sum of K2000. It was cashed on 5^th of May 2017. The accused, Billy Heni further confirmed his signature and that he cashed the cheque. The accused identified and confirmed that this cheque including all the other remaining cheques marked and referred to in Table 6 were all cashed by him. The accused also agreed that he personally collected the cash from the bank. In, all, the accused identified and confirmed that it is his name and signature which is written on the back of each of the cheques which he cashed at the BSP Bank, Lae Branch. These cheques are listed as:
    

Table 6 – Cheques raised by the accused for encashment which he cashed, and personally collected as confirmed by his signature on the back of each cashed cheques.

69. When put to him that between the period from 1 May 2017 to 18 July 2017, he did raise and drew 14 cheques belonging to the Lae Golf Club and that he cashed each of them himself? He replied, that is correct.
    
70. When it was also put to him that from the money that he had cashed, it was supposed to be returned to the Lae Golf Club, he replied “Yes”, these cashed cheques were mostly for the pokies float and safe refunds (top safe).
    
71. At this juncture, it was put to him that there were no safe refunds, as there is no mention of such safe refunds to the police. The accused, Billy Heni replied that that is not correct. But he did not elaborate on his response.
    
72. Further and in addition, the State also put to the accused, Billy Heni that the allegations involved not just taking money from the cash float, but it also involves discrepancies in short banking of cash flow into the Lae Golf Club Account? In response, the accused Billy Heni replied, “not true”.
    
73. Again, it was put to him that there was no need for the replenishment of the cash float because there were sufficient cash flow available to cater for the daily pokies float, he replied, “not true”.
    
74. To substantiate its allegation, the State put to the accused, Billy Heni that if he was shown a copy of the spread sheet dated for 19 June 2017, (page 118 on court file) showing details of the daily takings in the sum of K495.00 for that date, would he recognise it and confirm whether the 19 of June 2017 daily takings of the sum of K495.00 for that date was posted? The accused, Billy Heni replied “No”.
    
75. Similarly, the accused was again also shown a copy of the spreadsheet showing the daily takings in the sum of K1,150.00 for 6 July 2017 (page 149) and question was put to him whether this daily taking was posted? The accused, Billy Heni replied, “No”
    
76. Counsel for the State in her cross-examination also did put to the accused, Billy Heni that he had been fraudulently raising cheque requisitions for pokies float and that he stole a sum of Fifty Thousand, Four Hundred and Fifty Kina (K50, 450.00), the property of Lae Golf Club, whilst employed as the Accounts Payable Clerk? The accused, Billy Heni in his response replied that on 18 July 2017, he did raise a cheque for K2,000.00, yes, that he took that cheque without authorisation and cash the cheque for a sum of K2, 000.00 but when it was discovered, he returned the cash of K2,000.00. He gave evidence that when he was confronted by Ms Janet Kakapu and Mr. Greg Fennel, he admitted to cashing the cheque and taking the cash. As for the other cheques, yes, he was also questioned about it. But he did not respond directly to the question put to him about the other cheques which he cashed and collected personally from the Bank. It was left unanswered.
    
77. Counsel then put to the accused, Billy Heni that he agrees with the State that he stole monies in the sum of K50, 450 which were meant for pokies floats and float refunds from the Lae Golf Club and therefore terminated from work? The accused, Billy Heni in his response denied the allegations put to him. He also denied that all the other allegations put to him by the State.
    
78. The accused, Billy Heni was then re-examined on his evidence as to whether the cheque raised were to cover shortfalls in the cash float for the pokies, he replied “correct” and that it was cashed to cover these shortfalls, again, he replied “correct” and at this juncture, the defence closed its case.
    

Submission from the State

79. The Prosecution submitted that all the required elements of the charge of stealing under s 372 (1) (7) (a) and (10) of the Criminal Code have been satisfied. Firstly, the State submitted further that with respect to each element of the offence, it contends that from the evidence of Mr. Phillip Hommelhoff and Ms Janet Kakapu, both identified the accused, Billy Heni as the person who was employed as the Accounts Payable Clerk with the Lae Golf Club Incorporated at the time of the alleged offence. The accused, Billy Heni was identified as the persons responsible for the reconciliation of the Pokies Daily Takings and the raising of the Cheque Requisitions Requests for the Refunds for the Pokies Float. These responsibilities are confirmed by the evidence of the accused, Billy Heni himself who testified to that he is responsible for these tasks. He raises the requisitions, cashed the cheques personally. The accused even confirmed that all the 14 cheques which are alleged to have been cashed were signed by him personally as it bears his signature, date of encashment and collection of the cash from the bank himself. The accused did not deny that he personally cashed the cheques and signed for each and every one of them. However, the accused on the other hand does not give any indication as to what was done with the cashed cheques, how it was used, or where it went. Whether into the till for use as refunds of the Pokies Float or as cash wins for patrons? No evidence is adduced.
    
80. Further, there is no evidence of the cash being posted as cash flow for the Pokies Float or reimburse for any Pokies win in any of the Pokies’ games of the previous day’s takings being entered by the Accounts Payable Clerk. Given this factor, the State submitted that as per the evidence of Janet Kakapu, the accused did admit to raising a cheque of a value of K2,000.00 on 18 July 2017 and cashing it and the accused further admitted to some other transactions which were unaccounted at that material time. This then caused Janet Kakapu to conduct an audit of the Pokies Machines. Upon concluding an audit of the Pokies Float, Janet Kakapu discovered that the accused had over time conducted transactions which involved the raising of cheques for encashment and failure to bank cash flow from the Daily Takings of the Pokies Machine games which were of the value of K50, 450.00. Ms Kakapu gave evidence that the accused over time took the sum of K50, 450.00 the property of the Lae Golf Club Incorporated. Given the lack of evidence as to how these monies were accounted for., the State submits that the account took the K50, 450.00 over a period of time and the accused, Billy Heni by fraud, fraudulently, took the money with intent to permanently deprive the Lae Golf Club Incorporated of the said amount of money. The State submits further that this contention is confirmed by the evidence of the accused, Billy Heni in cross-examination when he agreed with the State that he never recorded those monies.
    
81. Furthermore, the evidence given by the accountant, Janet Kakapu confirmed that the amount of cash and cheques that the accused stole is of the value of K50,450.00 which is marked and referred to in Exhibit “EE” of the documents tendered into evidence by the State. The sum of K50,450.00 is money intended for the Pokies Float.
    
82. These are some of the instances where cheques raised and cashed as replenishment for the pokies float were not used for its intended purposes due to systemic false accounting and stealing over time, actions committed by a trusted employee and or fraudulent accounting by a trusted employee, the accused, Billy Heni.
    

Submission from the Defence

83. The Defence on the other hand, submitted that this case rests on circumstantial evidence where the State thinks that the accused, Billy Heni stole K50, 450.00 from cheques cashed between 1 May and 18 July 2017 because he admitted to stealing K2,000.00 on 18 July 2017. However, the State failed to establish what check and balance system were in place for the upkeep of and appropriation of the pokies float replenishment cash. This is the most significant aspect of the State’s evidence which is missing. Furthermore, the State failed to establish how the pokies summary sheets, the daily takings records, the National Gaming Board Machine Statements, cheque requisitions forms and the Bank Statement affirms the misuse of the pokies float monies by the accused, nor point to the accused making a false requisition to raise cheques unnecessarily, when there is evidence that the K2,000.00 pokies float is a cash that was to be at hand on a daily basis at the disposal of the accused. Finally, the Defence submitted that the there is no evidence that the pokies float cheques were raised simultaneously on a daily basis but at intervals. There was no intention to steal as cheques were raised on dates which clearly reflected that the requests for replenishment were genuine.
    

Assessment of evidence

84. Upon hearing counsels and taking note of the evidence adduced during trial, I have taken note of the reference made to the details of the Pokies daily takings for the period between 1^st of May 2017 and 18 July 2017 as adduced in the evidence of Mr. P. Hommelhoff which I have for convenience prepared a Table with details of these transactions which are set out in Table 3 of this judgment in paragraph 23, which I discussed in detail below:
    
    • (i) On 1 May 2017, receipts from the Pokies Daily Takings indicated a cash flow in the sum of K1960. Of this sum, K1000 was kept in the till for pokies float and K930 was banked (deposited) into the bank account on 2 May 2017 (Exhibit “L”). In this case, there is already cash flow of a sum of K1,000.00 in the till to replenish the Daily Pokies Float of K2,000.00. However, it is apparent that the accused, Billy Heni, the Accounts Payable Clerk, had gone ahead and raised a Cheque Requisition for a sum of K2,000.00 and drawn a Cheque No.107809 dated 2 May 2017, allegedly being payment for Pokies Float Used and Refund dated 1^st May 2017. In this case, he should have just raised a cheque for the balance of K1,000.00 only. However, by raising a Cheque Requisition dated 1 May 2017 for a sum of K2,000.00, which cheque had been cashed and collected by the accused, Billy Heni on 2 May 2017. (See Item No. 1 of Table 2), this action indicates an element of deceitful conduct and intent to defraud his employer of his cash (property). I also find that it is also apparent that there is no reconciliation of the amounts in the spreadsheet for 2 May or 3 May 2017. Thus, the sum of K2,000.00 is unaccounted for.
      
    • (ii) On 4 May 2017, this practice is repeated when a new Cheque Requisition is raised on 5 May 2017 for a sum of K2,000.00 when clearly, at page 63 of the Court file, the daily takings of pokies operation of 4 May 2017 show that a total of K3900.00 cash flow (Exhibit “M”) was made that evening. Of this sum, records indicate that a sum of K2000 was kept as float. The balance of K1900 was banked. However, again, the Accounts Payable Clerk, raised a Requisition for a sum of K2,000.00 and a BSP Cheque No.107826 dated 5 May 2017 (Exhibit “DD”) - Item 5 of Table 2) and cashed by the accused, Billy Heni. This action was clearly unwarranted and deceitful as there is already, a sum of K2,000.00 in the till to be used as the Daily Pokies Float for that evening’s operation. Here, it appears that a sum of K2,000.00 is also unaccounted for.
      
    • (iii) This action is repeated for Pokies Float Used and Refund dated 9 May 2017. BSP Cheque No.107829 dated 9 May 2017 was cashed for a sum of K1,800.00 (Exhibit “DD”) was raised and cashed by the accused, Billy Heni. This sum is unaccounted for.
      
    • (iv) On 11 May 2017, again, the accused raised a Cheque No 107832 dated 11 May 2017, (Exhibit “J” and cashed by Billy Heni for a sum of K2,000.00. Cash which he collected himself. This cash is unaccounted for.
      
    • (v) The same action is repeated yet again on 18 May 2017, a BSP Cheque No.107865 dated 18 May 2017 for a sum of K3,050 was raised based on a Cheque Requisition requested made by Billy Heni which he personally cashed and collected from the Bank. (Exhibit “O”). This was to replenish the Pokies Float for 18 May 2017. However, according to the daily takings for this day, there was a sum of K2,000.00 in the cash flow till. Hence, this cash of K2,000.00 is unaccounted for.
      
    • (vi) Again, on 20 June 2017, a Pokies Float cheque requisition was made for a sum of K3,400.00. A Cheque No. 107919 for a sum of K3,400.00 was raised and cashed by Billy Heni (Exhibit “E”). However, as it turned out, this request was not necessary. The daily takings for this day were already covered. This cash is unaccounted for.
      
    • (vii) On 21 June 2017, another cheque requisition was made for a sum of K2,000.00 which was cashed by the accused, Billy Heni, (Exhibit “V”). Again, this cash is unaccounted for.
      
    • (viii) On 6 July 2017, an Eftpos Receipt of a sum of K1,950.00 was received for the Pokies Daily Takings, (Exhibit “P”) which was collected by the accused, Billy Heni, again this cash is unaccounted for.
      
    • (ix) On 30 June 2017, another cheque requisition was made for a sum of K3, 300.00 (Exhibit “BB”) and a Cheque No.107942 was raised (Exhibit “CC”) and cashed by the accused, Billy Heni. Again, this cash was unaccounted for.
      
    • (x) In addition, a Pokies Float Used and Refund request for a sum of K3, 000.00 dated 13 July 2017 was again made by the accused, Billy Heni (Exhibit “CC”) at Document No. 196. On the same day, a BSP Cheque No.108158 dated 13 July 2017 was raised for a sum of K3,000.00 (Exhibit “C”) This cheque was cashed and collected by the accused, Billy Heni. This cash is unaccounted for.
      
    • (xi) Further and in addition, the accused, Billy Heni did admit to cashing a cheque No. 108182 dated 18 July 2017 for a sum of K2,000.00 which the accused, Billy Heni did admit to stealing.
      
85. Given these matters, the issue before this court is who should the Court believe, the State or the Defence. This is where the common sense and logic test comes into play. Where the Court has to consider which evidence is credible? Hence, the issue of credibility of the witnesses in giving their evidence is important in determining verdict.
    

The offence

86. In this case, the accused, Billy Heni is charged under Section 372 (1), (7), and (10) which states:
    

“372. Stealing.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.........

(2) ...

(3) ...

(4) ...

(5) ...)

(6) ...

(7) If the offender is a clerk or servant, and the thing stolen–

(a) is the property of his employer; or

(8) ...

(9) ...

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.”

(11) ...

(12) ...

The elements of the offence

87. The elements of the offence of stealing are set out below:
    
    • (1) Taking something or converting it to the accused or another person’s use; and
      
    • (2) Doing so “fraudulently”; and
      
    • (3) Moving it or dealing with it by some physical act.
      

The “Fraudulent” taking or conversion happens when the accused takes or converts the thing:

(a) With intent to permanently deprive the owner of it; or

(b) With any of other states of mind prescribed by the Criminal Code, Section 365

88. Ms Joseph for the State submits that all of the elements of the offence of stealing under s 372 (1) (7) (a) (10), have been proven.
    
89. In support of her submission, Ms Joseph referred this Court to the case of The State v Karakabo [2012], N4897 in which in the Court outlined a number of factors to take into account when determining the elements of the offence of stealing under s 372 (1) (7) and (10). The Court in that case listed these factors as:
    
    • (1) Taking something or converting it to the accused or another person’s use; and
      
    • (2) Doing so “fraudulently”; and
      
    • (3) Moving it or dealing with it by some physical act.
      

The Court went on to state further that The “Fraudulent” taking or conversion happens when the accused takes or converts the thing:

(a) With intent to permanently deprive the owner of it; or

• (b) With any of other states of mind prescribed by the Criminal Code, Section 365
  

(4) Doing so “fraudulently”; and

(5) Moving it or dealing with it by some physical act.

90. In this instance case, the evidence adduced during trial do show that the accused Billy Heni did take something in this case, ‘money’ in the form of cash and cashed cheques totalling an amount of K50, 450.00 and converting it to his own or another person’s use; and having done so fraudulently and intentionally moving it and dealing with it by some physical act.

91. To constitute the offence of stealing under sub-section (10), all elements of stealing must be proved. The prosecution has the burden of proving beyond reasonable doubt every element of a charge to secure a guilty verdict and conviction. Failure to prove beyond any reasonable doubt any one or more of the elements constituting a charge can result in acquittal for that charge: see State v Sasoropa (No.1) (2004) N2565.
    

Applying the test to the evidence

92. Here I find that the first element of the offence (1) “a person or the offender” has been proven by the State and this is from the evidence adduced through witnesses Mr. Hommelhoff and Ms Kakapu. In all of their evidence, they each have identified the accused, Billy Heni, the Accounts Payable Clerk as the person or the offender. Further, they all have identified, the accused, Billy Heni as being the person or offender who was employed as an Accounts Payable Clerk when he purportedly stole the cash and cashed cheques, the property of his employer, the Lae Golf Club Incorporated. They all gave evidence that the cash and cashed cheques stolen is of the value of K50, 450.00. This amount of money is yet to be recovered.
    

(1) A person or the offender

93. The first element of the offence is that (1) “a person or the offender” in this case you, the accused, Billy Heni, has been identified in the evidence of both Mr. Philip Hommelhoff and Ms. Janet Kakapu as being the “person or offender who was employed and held the position as the Accounts Payable Clerk at the Lae Golf Club at the time of the alleged dates of the offence. Both Mr. Hommelhoff and Ms Kakapu also gave evidence that you, the accused Billy Heni was responsible for reconciliation of the pokies daily takings and raising of cheque requisitions and the drawing and encashment of the cheques raised meant for the replenishment the K2,000.00 daily pokies floats.
    
94. Further and in addition, you yourself (the accused, Billy Heni) your evidence also agreed and affirmed the evidence of both Mr. Hommelhoff and Ms Kakapu that you the accused, Billy Heni did cash the cheques and it is your signature that is on the back of each of the cashed cheques that he had raised for encashment at the bank.
    
95. You, the accused, Billy Heni have also affirmed that you are responsible for the collection and reconciliation of receipts of the daily takings from the Pokies Games. So, in essence, the accused, Billy Heni in his evidence has collaborated the evidence of the State that he did raise 14 cheques of varying amounts for encashment, which he himself collected and signed off on and that his signature is on the back of all the 14 cashed cheques. Here, again, the accused also agreed and confirmed that he was responsible for the reconciliation of the Pokies daily takings, drawing and encashment of cheques for the pokies float.
    
96. Hence, the first element of the offence is proved.
    

(2) Stole

97. As to the second element of the offence, “stole”, I note that Janet Kakapu did state in her evidence that the accused, Billy Heni did admit to stealing a cheque and writing the amount of “K2,000.00” on it and then he went to the bank and cashed it.
    
98. In this regard, you yourself admitted this in your own evidence, although I also note that you said, you returned the K2, 000.00 (money) upon being discovered on or about 18 July 2017.
    
99. I also note that Ms Kakapu in her evidence did testify that you yourself did admit to her that aside from the transaction of 18 July 2017, that there were some other transactions unaccounted for and this then caused Ms Kakapu and the Lae Golf Club Committee to conduct the investigations which has led to these charges. Following their investigation, they discovered that a sum of Fifty Thousand, Four Hundred and Fifty Kina (K50, 450.00) had been stolen over a period of time and fraudulently by the accused, Billy Heni.
    
100. Whilst the accused, Billy Heni, did admit that he has cashed all the cheques and collected the cash from the bank, I am satisfied that in his evidence, he failed to account for all the cashed cheques and or to reconcile these cash with the cash flow receipted from the daily takings received from the daily pokies floats. He failed to give an account of the monies received and to give a report on the reconciliation of cash flow received from the daily takings from the pokies float, failing this accounting, it is lead me to apply the common sense and logic test to this scenario and safely arrive at a conclusion that there has been a systematic accused took fraudulently took the money with intent to convert it to his use or that of another person and to permanently deprive the Lae Golf Club of the said amount of money. I also note that in his evidence, whilst being cross-examined by the Counsel for the State, the accused, Billy Heni did agree with the State that if there were any discrepancies or shortfalls in the cash flow, he would pick it up and reported these short falls to Ms Janet Kakapu, but his evidence revealed that this was never done or recorded.
     
101. In fact, the accused also affirmed in his evidence that all the cheques authorised for encashment were cashed and signed off by him. In the accused, Billy Heni did identify each of the cashed cheque and pointed out his signature on the back of the cashed cheques. Therefore, there is no doubt that the accused, Billy Heni did cash all the cheques and collected the cash from the bank personally. There is no evidence however, adduced during his evidence as to how, where and what these monies were used or kept. The lack of evidence relating to the accounting and reconciliation of these cash leaves serious gap in the evidence of the accused, Billy Heni. It appears that there is systemic false accounting and stealing over time, actions committed by a trusted employee and or fraudulent accounting by a trusted employee, the accused, Billy Heni. Thus, in applying the common sense and logic test to this gap, it would lead to a reasonable inference that the accused by fraudulent act took the money with intent to convert it to his use or that of another person and to permanently deprive the Lae Golf Club of the said amount of money. Such sum of money is yet to be recovered.
     

(3) Anything capable of being stolen.

102. In the evidence given by the Accountant, Ms. Janet Kakapu during trial and sworn oral statement referred to as (“Exhibit EE”), she testified that the accused, Billy Heni stole a sum of K50, 450.00, ‘monies’ intended for the replenishment of the daily Pokies Floats. Hence, it necessary for the Court to consider the evidence which the State through its witnesses has adduced during this trial against the accused. If after evaluating all this evidence and this Court arrives at a finding that the State has discharged its obligation, then, it will become necessary for the Court to assess or consider the evidence of the accused, given in Court in response to the charge of stealing.
     
103. In assessing the evidence, I find that the evidence of Ms Kakapu is collaborated by the evidence of Mr. Hommelhoff and Mr. Tamegal. Firstly, Mr. Hommelhoff and Mr. Tamegal have each have testified that they each co-signed a number of cheques. For Mr. Hommelhoff, he co-signed 10 cheques and for Mr. Tamegal, he co-signed 4 cheques. All 14 cheques were raised by the accused, Billy Heni for encashment. These cheques are set out in Table 4 of this judgment.
     
104. In regard to the cash flow receipted from the daily takings of the pokies float (games), the evidence of Ms Kakapu is collaborated by the evidence of Mr. Hommelhoff who both gave evidence of daily takings of pokies float cash flows not accounted for and reconciled with the cashed cheques which were cashed and meant to be replenishment for the daily pokies float. Furthermore, ‘money’ is a thing capable of being stolen. (State v Wilfred Timon Bai [1980] PNGLR 216.
     
105. At this juncture, the question that is posed before this Court, is, which version of the evidence should the Court accept and also to consider and determine which version of the stories is credible: (see The State v Paka [2016] PGNC 425; N6914; The State v Kevin Anis & Martin Ninigan (2003) N2360).
     
106. Should this court accept the State’s version of evidence or the Defence’s version of evidence? Thus, as a tribunal of fact, I as the fact finder, must give due and careful consideration to the testimonies of each of the witnesses. Further and in addition, I must also test this evidence amongst others, against the logic and common-sense test: (see The State v Cosmos Kutau Kitawal & Anor No 1 (2002) N2266. I must also consider whether the evidence is consistent including other factors such as the demeanour of the witnesses whilst testifying in the witness box (see Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Waragu Waranaka v Gabriel Dusava (2009) SC 980; Andrew Palili v The State (2006) SC848).
     

Assessing credibility of the witnesses.

107. Here it is the State’s case that the accused stole monies in the sum of K50. 450.00, money which is the property of Lae Golf Club. On the other hand, the accused say he only took the K2000 on the 17^th of July 2017, he does not know about the rest of the monies alleged to have been stolen.
     
108. So, if only a sum of K2,000.00 was taken, what has become of the sum of money which the State says that had been stolen and called evidence to substantiate its allegation? Given this scenario, I would now have to assess the evidence and thus this Court would have to determine as to who to believe. Should the Court believe the version of the evidence presented by the State witnesses, or should the Court believe the version of the evidence given by the accused, Billy Heni?
     
109. In order to determine the question of who to believe, it is important that this Court should assess the credibility of each witness. In The State v Kevin Anis & Martin Ninigan ((2003) N2360, his Honour, Kandakasi J., (then) stated that: “common sense and logic plays a major role in determining credibility of a witness’s evidence” and this statement is reiterated in The State v Cosmos Kutau Kitawal & Anor No 1 (2002) N2266, per Kandakasi J: "Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty”.
     
110. Furthermore, in the case The State v Paka [2016] PGNC 425; N6914, the Court stated that in determining which version of the stories is credible depends on a number of factors.
     

“Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Waragu Waranaka v Gabriel Dusava (2009) SC 980. Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their appearance and yet be telling the truth. [see Andrew Palili v The State (2006) SC 848] Similarly there is no rule of law which states that the more witnesses called by a party and the more consistent or identical their stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness. [see State v Jacob Dugura Roy (2007) N3137]. The Complainant in the case of PAKA was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive.”

111. In applying the above principles to this case, I must point out that when the accused, Billy Heni, took the stand to give evidence in his defence, his overall credibility is undermined by his admission of cashing all the cheques and picking up all of the cashed cheques and signing off on each and every single copy of the cheques, but then, he says that he does not know what became of all the cashed cheques. He really does not offer any evidence as to where these cash were taken to, or what it was used for and how it was used.
     
112. Furthermore, and in addition, although he also confirms that the cheques were to replenish the Pokies Float, but again; he did not offer any evidence as to the replenishment of a particular daily pokies float or payment of a windfall (s).
     
113. Overall, his evidence was generally contradictory, and this offends the principle of logic and common sense. The evidence given by the accused also raised serious inconsistencies when referring to two different safe and the purposes of each safe. Whether there is any truth in relation to this evidence, I note that these matters were not put to the State witnesses whilst still in the witness box. It therefore offends the rule in Brown v Dunn (1893) 6 R. 67, H.L. I therefore place no weight on the evidence of the accused, Billy Heni.
     
114. It therefore follows that the Court is disinclined to accept the evidence of the accused, Billy Heni as being credible. I reject the evidence of the accused, Billy Heni as reliable and truthful.
     
115. On the other hand, I find that the whole of the evidence adduced by the State witness as reliable and truthful. Each of the witnesses had no reason to lie to this Court. The witnesses, particularly Mr. Phil Hommelhoff was consistent in his evidence. He offered in his evidence, copies of the cheques which he had co-signed as presented to him by the accused for authorisation. He really did not think anything badly of the accused, Bill Heni but believed that he was honestly doing his assigned tasks as the Account Payable Clerk. Little did he know that stealing was going on until this was discovered. In any event, other relevant documentation was tendered into evidence by Philip Hommelhoff in his capacity as President of Lae Golf Club under s 61 of the Evidence Act. I find these material useful to the determination and finding of guilt on the part of the accused as most of the evidence adduced before the Court is substantially based upon circumstantial evidence.
     
116. Thus, the question for the Court is whether the guilt of the accused is the only rational inferences would enable it to draw: (see Morris v The State [1980] PGNC 87; [1981] PNGLR 493).
     
117. Given that the accused cannot and does not explain how the cashed cheques were missing and where the cash receipted for the pokies machines were kept and how it is reconciled with the cashed cheques, the only reasonable and rational inference that could be drawn from this lack of explanation is that the accused, Billy Heni is the only person who is authorised to prepare cheque requisitions for replenishment of the pokies float, obtain signatories of the authorised signatories, present the cheques for encashment and collects the cash for which he has signed on the back of each and every cheques presented, and is responsible for its reconciliation with the books of the Golf Club Inc., I would in this instance apply the logic and common sense test and can safely say that the accused, Billy Heni is the only person who, being responsible for raising the cheques, cashing the cheques, receiving the cash and only he would know where it went and how it was used or what happened to it. He cannot say that he does not know what happened to it. It beats the common sense and logic test. I therefore find that in his role as the Account Payable Clerk, he failed in his responsibility to account for each, and every cheque raised for encashment and also failed to account and reconcile these cash as replenishment for the daily takings receipted from the daily takings of the pokies float (machines).
     
118. Giving the reasons and findings stated above, I can safely conclude and arrive at a finding that the State has proven its case beyond reasonable doubt that the accused Billy Heni whilst employed as an accounts payable clerk with the Lae Golf Club Inc., performing responsibilities as the Account Payable Clerk in the reconciliation of the pokies daily takings and raising requisitions for pokies floats; he failed to report any discrepancy that would have been picked up at the initial reconciliation process of the accounts. The accused, Billy Heni in the performing of his assigned tasks as the Account Payable Clerk also failed to report such discrepancies to the Management of the Lae Golf Club. Further and in addition, he also failed to report and to record the daily takings receipted in the pokies floats which subsequently resulted in the Lae Golf Club Inc., being deprived of the loss of its property, being a sum of money calculated to the value of K50, 450.00.
     
119. Given these factors, I find that the accused, Billy Heni by fraudulent act intentionally deprived Lae Golf Club Inc., of its property, cash monies in the sum of K50, 450.00. I therefore return a guilty verdict against the accused, Billy Heni and enter a conviction for the charge of stealing contrary to s Section 372 (1) (7) (a) and (10) of the Criminal Code Act as amended. The accused, Billy Heni is to be remanded in custody at CIS, Buimo pending sentencing.
     

Verdict accordingly.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused