N11034
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 145 OF 2018

THE STATE

V

PAUL ENA

Mt Hagen: Berrigan J
2024: 9th and 11th October

CRIMINAL LAW – S 383A, Criminal Code, Misappropriation – Whether accused dishonestly applied K40,000 to his own use – Guilty.    

Cases Cited:

Maraga, supra v The State (2009) SC968
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173 
Havila Kavo v The State (2015) SC1450
Brian Kindi Lawi v The State [1987] PNGLR 193
Wartoto v The State (2019) SC1834 
Kaya v The State (2020) SC2026

References Cited

Sections 23(2), 383A, 530, Criminal Code

Counsel

H. Roalakona, for the State 
F. Timbi, for the Accused  

DECISION ON VERDICT

11th October 2024

1.	BERRIGAN J:  The accused is charged with misappropriating K40,000 belonging to Peres Norea between 1 December 2015 and 31 July 2016, contrary to s 383A(1)(a)(2)(d) of the Criminal Code (Ch. 262) (Criminal Code). 

2.	The State alleged that sometime in December 2015 the complainant, Peres Norea, met with the accused, his cousin, in Mt Hagen. The accused told the complainant that he knew people at Ela Motors and could help him get a loan to purchase a PMV bus. The complainant gave the accused his BSP Kundu card and PIN for that purpose. Instead of purchasing the bus the accused dishonestly applied K40,000 from the account to his own use. He promised to repay the money but never did.  

3.	There is no dispute and the evidence establishes that the complainant did give the accused his bank card and PIN in or about December 2015/January 2016. There is also no dispute that the accused withdrew monies from the account and did not apply them for or towards the purchase of a bus. The  accused disputes, however, the purpose for which he was authorised to withdraw the funds and denies that the monies were applied other than for the purpose intended and any alleged dishonesty on his part. 

State’s Case

4.	Perea Norea gave evidence. He is a 62 year old man from the village. He is educated to Grade 3. He earns his living growing and selling potato and broccoli. He saved K40,000 over many years. Paul Ena is his cousin. The accused told him that he would purchase him a coaster bus. He believed him and gave him K5000 cash together with his BSP card sometime in 2015 but the accused did not purchase the bus. After four months he went to the bank in Mt Hagen and obtained a statement. He saw that all his money was gone from his account, No 1014454043. He almost collapsed inside the bank. He could not believe that all his money was gone. He looked for the accused and had him arrested. He has never received any money or a bus from the accused.

5.	He disagreed with the suggestion that the card was given to the accused to use for consultancies fees. He did not know what that was or anything about any proposal. He did not ask the accused to use the money to draft a proposal in his name seeking funding from local members. The accused did not use the money to open an SME account for him. He did not receive K30,000 from the accused in 2016. He received K30,000 but that was from the late member, Benjamin Poponawa, his brother and he received it in 2017 after he supported him with a pig and a vehicle. The member gave him that money as payment. Until this year when he opened an account with Mibank he only had his BSP account.

Defence Case

6.	The accused is 60 years old. He is a former police officer of 16 years standing, during 12 of which he was attached to CID. He has a diploma in Police Studies from the UPNG. He was a Research Officer for the late Benjamin Poponawa, MP, from 2014 to 2017. The complainant gave him a proposal for K300,000 together with his card and PIN and asked him to use it as consultancy fees and to purchase tickets for the purpose of getting the K300,000. So, he used the money to go to Port Moresby where he registered the complainant’s private company, Makebo Organic Farming, at the IPA in the complainant’s name as chairman and director. There were other directors. He travelled from Mt Hagen to Port Moresby several times and was about to deliver a cheque for K30,000, which was in his possession when the complainant had him arrested. He had opened an account for the company and he handed over the cheque to the complainant who deposited it to that account. 

7.	He used cash to register the company in Moresby not eftpos. The K30,000 was payment to Norea for services rendered. He got the cheque from the local MP who issued it from his District DSIP for the purpose of helping farmers to do farming. He was employed as a Research Officer and it was his duty to recommend and obtain cheques for the community. That was their arrangement, to get the cheque, not to buy a bus, which would cost K100,000 not K40,000. He did his job as agreed. Sometimes he gave the card back and the accused used it, for instance they registered his car for K2000. He sometimes made withdrawals at the accused’s request from ATMs here in Mt Hagen. The last time he used the card was in or around April 2016. He picked up the cheque from Tambul District Treasury Office in mid to late November 2015.

Consideration

8.	The complainant impressed me as a witness of truth. His evidence was simple, straightforward and in keeping with common sense and logic. He was careful in his evidence and conceded when he was unsure of details or dates. I accept his evidence that he gave the accused the monies for the purpose of purchasing a coaster bus. I reject the suggestion that his evidence is implausible because a bus might cost much more than that. The complainant is not an overly sophisticated man. The complainant readily agreed that he was given a cheque for K30,000 by the member but said it was an entirely separate matter. I accept the complainant’s evidence that he received the cheque in about 2017 after he supported the member, which again makes sense in light of the elections which, I take judicial notice, took place that year. 

9.	I make this assessment, as I do with each of the witnesses, having heard and observed them whilst giving evidence and having regard to common sense and logic and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga, supra v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173. 

10.	The accused was an unimpressive witness. His evidence was contradictory and implausible. He said that the complainant gave him a proposal for K300,000 and his card to use the monies as consultant fees and for tickets to go to Port Moresby to get his K300,000. He used the money to purchase a ticket to travel to Port Moresby to register the company, which he did. He travelled to and from Port Moresby several times. He received the cheque in 2016 and was about to deliver the cheque, which he had in his possession, when he was arrested. The complainant is unable to read and I accept his evidence that he did not give any proposal to the accused. In addition, the cheque the accused relies on was issued on 30 November 2015, well before the accused received the complainant’s bank card. It also appears that the company to which the cheque was issued already existed in November 2015 and had a registered PO Box in Mt Hagen: Makebo Organic Agriculture Foundation Inc. Later the accused said that he received the cheque in November 2015 and yet he was still in possession of it at the time he was arrested, some eight months after he first obtained it. It makes no sense.  

11.	If the accused meant that the complainant asked him to prepare a K300,000 proposal at some stage and he received the cheque in November 2015 for part payment in respect of that but it was payable to a company which had yet to be registered with the IPA and yet to open a bank account and that is why he used the moneys to go to Port Moresby, I reject that possibility as well.  

12.	I note here that the bank statement prior to 5 January 2016 is not available. The complainant is an honest witness but he is mistaken about when he gave the accused K5000 and the card. It appears to me from the bank statement that it was not in 2015, about which he conceded he could not recall the month, but was on 11 January 2016. Thereafter the account was rundown by what appears to be almost daily cash withdrawals ranging from K1600 down to K200 until by 28 February 2016 the account balance had been reduced to K28.59. All of those withdrawals were made at ATMs in Mt Hagen and the rate and nature of expenditure is not consistent with the accused’s claim that he was using the monies to travel to Port Moresby to register a company. Moreover, the accused had expended all of the monies and more than the value of the cheque in a matter of weeks. It is implausible that the complainant would hand over his savings to the accused for the purpose of registering a company or for some vague K300,000 proposal. The monies represented the complainant’s life’s work.  

13.	The accused said that the last time he used the card was in Port Moresby in April but that is not correct. On 27 May 2016 the accused transferred from his own account a total of K2500 to the complainant’s account. Those monies were drawn down at various ATMs in Port Moresby the same day. On 1 and 2 June 2016 he transferred a total of K3000 to the account and drew it down again effectively by the 6th. There was a further K400 or more transferred by the accused which he drew down in Port Moresby and then back in Mt Hagen, including at the supermarket, by 30 June 2016. The accused may have used the card in Port Moresby but that was well after he obtained the cash and card from the complainant in January, and well after the complainant’s monies had been exhausted by the end of February. I reject any suggestion that the monies were expended for any purpose of the complainant. 

14.	In that regard, whilst there was a payment to MVIL on 1 February 2016 I reject the accused’s evidence that he returned the card to the complainant for that purpose or for any other purpose during the period, matters which were not put to the complainant and whose evidence I accept.  

Misappropriation 

15.	To establish the offence the prosecution must prove beyond reasonable doubt that the accused:

(a)	applied; 
(b)	to his own use or to the use of another; 
(c)	property; 
(d)	belonging to another person; 
(e)	dishonestly. 
Havila Kavo v The State (2015) SC1450.
16.	There is no dispute and I am satisfied beyond reasonable doubt that the monies the subject of the charges, both the cash given to the accused by the complainant and the withdrawals made by him from the complainant’s account, were property as defined under s 383A(3), Criminal Code.

17.	I am satisfied beyond reasonable doubt that those monies belonged to the complainant pursuant to s 383A(3)(d), Criminal Code.  The accused was given cash and had access to the monies in the complainant’s account for the purpose and on condition of buying a bus. The complainant retained ownership in those monies until they were applied for that purpose: Brian Kindi Lawi v The State [1987] PNGLR 193, and the numerous cases applying it, including Havila Kavo, supra, Wartoto v The State (2019) SC1834; Kaya v The State (2020) SC2026.

18.	I am satisfied beyond reasonable doubt that the accused applied the monies for his own use. The monies were not applied for the purpose of purchasing or arranging the purchase of a bus as agreed or for any purpose approved by the complainant.

19.	Finally, I am satisfied beyond reasonable doubt that the accused applied the monies to his own use dishonestly. I am satisfied beyond reasonable doubt that the application of the complainant’s monies to the accused’s own use was dishonest according to the ordinary standards of reasonable people. I am further satisfied beyond reasonable doubt having regard to the age, education and experience of the accused, a former police officer, that he in fact knew that his conduct was dishonest according to those standards: Brian Kindi Lawi,  Wartoto, Havila Kavo, supra, amongst others. 

20.	For completeness, having rejected the accused’s evidence there is no other evidence which raises the defence of honest claim of right which has been excluded beyond reasonable doubt: s 23(2), Criminal Code; Wartoto, supra and the cases applying.

21.	Before closing I note that a statutory declaration was admitted through the complainant by the State. The accused says that he was forced to sign the declaration. He gave his cousin K800 and a pig worth K2000 earlier this year and the complainant said he would settle the matter. It is only because of the declaration that the case is proceeding. I reject the accused’s evidence about a proposed settlement. As for the declaration, no notice of voir dire was filed, no objection was taken to the declaration at the time it was tendered, nor witnesses required for cross-examination and the accused’s evidence on that point was not put to the complainant.  But the declaration is not necessary to my decision and in the circumstances I disregard it.

22.	In conclusion, I am satisfied beyond reasonable doubt that the accused dishonestly applied monies belonging to the complainant to his own use as alleged, except that I find that the monies involved were K32,601.74, the amount in the account as at 11 January 2016. 

23.	On the above findings there was a variance between the amount of monies alleged to have been misappropriated and the amount established beyond reasonable doubt. The amount of monies alleged is not an essential element of s. 383A(1)(a) of the Criminal Code.  In addition, it is expressly provided that in an indictment referring to “money”, proof that the accused dealt with any portion of the value of it is sufficient to constitute the offence: S. 530 (6) and (7) of the Criminal Code. 

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