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

State v Gewa [2025] PGNC 219; N11387 (30 May 2025)

N11387

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 40; 42; 44; 45; & 47 /2019

BETWEEN:

THE STATE

AND

COPLAND GEWA

POPONDETTA: KUPMAIN, AJ
2024: 8 February & 22,23,29,30,31 July & 9 August
2025: 10,14,15,18,19,20,27 March & 30 May

CRIMINAL LAW – VERDICT –Misappropriation of Public Funds – Monie held in Work Permit Trust Account - Most elements of the offence and facts not in contention – Only Dishonest application by the Accused – Verdict of not guilty.

CRIMINAL LAW – Possible Motive to lay complaint of Fraud against the accused – Possible Selective Investigation - Possible Malicious Prosecution – Prosecution evidence insufficient- Element of Dishonesty not proven beyond reasonable Doubt - Section Sections 383A (1) (b).

Cases cited:
Brian Kindilawi v The State [1987] PNGLR 183
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Francis Laumadava [1994] PNGLR 291
The State v Ati Worbiro (No.1) (2016) N6398
Jimmy Maladina v. State (2016) SC1495
Paul Tiensten v. State (2014) SC1468
The State v Robert Sandra & ors (2019) N8296

Counsels:
Ms. Aihi, for the State
Mr. Napu, for the accused

JUDGEMENT ON VERDICT

30 May 2025

1. Kupmain AJ: This is my decision on verdict in the matter of The State v Copland Gewa CR (FC) 40-47 of 2019. The accused was charged with one count of misappropriation on an indictment dated the 10^th of July 2024.
   

Indictment

2. The indictment alleged that the accused Copland Gewa between the 1^st day of January 2012 and the 31^st day of December 2016 in the National Capital District and the Northern Province in Papua New Guinea dishonestly applied to his own use and to the use of others the sum of K969,711.80 the property belonging to the Independent State of Papua New Guinea contrary to Section 383A subsection (1) (a) of the Criminal Code.
   

Facts

3. The brief facts alleged that between the 1^st of January 2012 and the 31^st of December 2016 the accused Copland Gewa was employed by the Department of Labour and Industrial Relations as the provincial labour officer for Northern Province. The Work Permit Trust Account#1001037437 held with the Bank South Pacific Limited was created for the purpose of improving the administration and operation of the activities undertaken by the DLIR (Department of Labor and Industrial Relations) and the use of this account was to be guided by a Trust Instrument, Financial Instructions and the Public Finance Management Act of 1995.
   
4. At the material time the accused travelled between Popondetta and Port Moresby and so incurred a number of expenses for travel, accommodation and other services. He incurred payments to these service providers causing the drawing of monies from the Work Permit Trust Account to settle these bills. It was further alleged that some of these monies were paid to his account to which he dishonestly applied to his own use and to the use of others. These payments were not done in accordance with the procedures as prescribed in the Public Finance Management Act 1995 and the Financial Instructions. The State further alleged that the accused dishonestly applied to his own use and to the use of others the amount of K969,711.80 the property of the Independent State of Papua New Guinea. The actions of the accused amounted to the offence of misappropriation of property thereby contravening Section 383 A (1) (a) of the Criminal Code.

Upon arraignment the accused pleaded not guilty, and a trial was conducted. The charge was brought under Section 383A (1) (a) of the Criminal Code Act.

The Charge

5. The charge of misappropriation is as follows;
   

383A. MISAPPROPRIATION OF PROPERTY.

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

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:
(a) where the offender is a director of a company and the property

dishonestly applied is company property; or
(b) where the offender is an employee and the property dishonestly

applied is the property of his employer; or
(c) where the property dishonestly applied was subject to a trust, direction

or condition; or
(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

6.Elements of Misappropriation

This offence of misappropriation has three elements to it which the State must prove beyond reasonable doubt that the accused:

1. Dishonestly
2. Applied to his own use and to the use of another
3. Property belonging to another person.
   

Issues

7. The issue before this court is whether the accused dishonestly applied to his own use and to the use of others the sum of K969,711.80 which belonged to the Independent State of Papua New Guinea.

Summary of Prosecution Evidence

8. In proving its case the State’s evidence came in the form of documentary evidence and oral testimony from their witnesses. The State by consent tendered 79 documents altogether as per the exhibit list.

ANNEXURE ‘A’ PROSECUTIONS EXHIBITS

9.The following persons were called by the State to give oral evidence. They are firstly,
Brian Yaruso

Brian Yaruso, this witness was the caretaker of Northern Motel Ltd, he was called on the 31^st of July 2024 and he testified that services were rendered by his employer to the Department of Labour and Industrial Relations and payment was according. He was shown the state Exhibit s S49, S50 & S53 to which he confirmed as payments from the Department of Labour and Industrial Relations for services rendered.

Raymond Lim

The next witness was Mr. Raymond Lim, he is the Managing Director of Eureka Industry Ltd. He was called and he stated that services were rendered by his company to the Department of Labour and Industrial Relations and that payment was made accordingly. He was shown the state Exhibit S13, and he confirmed that this was the payment for the hire car services he had rendered to the accused.

Philip Tepi

The next witness was Philip Tepi. This witness used to be a nurse formerly employed by the Popondetta General Hospital for some years and has retired since. At the material time he was and is a small businessman, he was called by the State and he gave evidence that at the material time the accused borrowed some money from his wife to purchase a ticket to Port Moresby. To repay, he asked the witness Philip Tepi to provide his bank count details which Philip Tepi did. The witness further gave evidence that some days later he checked his bank account, and he saw a large amount of money credited to his bank account, about K20,000.

He was surprised and he called the accused to which he was advised by the accused to withdraw the money and remove what was owed to his wife and give the rest to the accused. The accused instructed the witness to travel to Port Moresby and withdraw the money and give it to him. The witness did as he was instructed. He further gave evidence that the only payment owed by the accused was a payment of K2000 owed to his wife. The witness was shown Exhibit S31 which is the payment made to Philip Tepi in the sum of K20,350 being payment for replacement of floor mat, fly wire and ceiling of Provincial Labour Office in Oro Province. This witness denied being engaged by the Department of Labour and Industrial Relations to do any minor office works at the office here in Popondetta. The witness also denied rendering services and receiving a payment of K3,300 shown in Exhibit S24 that was made to him by the Department of Labour and Industrial Relations for doing a fence repair work for the proposed Department of Labour and Industrial Relations office. He further denied having a postal address as described in Exhibit S24 being PO Box 384, Popondetta or any postal address for that matter.

Richard Pangiwen

The next witness called by the State was Richard Pangiwan. This witness was employed by the Department of Labour and Industrial Relations as an auditor. He was tasked to conduct the audit examinations into the allegations of misappropriation of monies drawn from the Work Permit Trust Account. The copy of the Trust Instrument pertaining to the Work Permit Trust Account and a copy of a letter dated 13^th September 2013 from Dr. Ken Ngangan to George R. Vaso were tendered into evidence through this witness and was marked as State Exhibit S74 and S75 respectively. This witness could not produce the copy of the Audit Report at trial. He explained that he was suspended and did not have access to the office to obtain a copy. He stated that a copy of the Audit Report was given to the Investigator during investigations.

Asher Waffi

The next witness called by the State is Asher Waffi. This is the legal officer of the Bank South Pacific Financial Group Ltd. He is the replacement witness of Gideon Alowa who is the compliance officer who produced the bank evidence at the material time. This witness was called to identify and produce into evidence state Exhibits S76, S77 and S78 which are copies of the bank statement of the accused’s personal bank account and the copies of payment vouchers pertaining to payments made from the Work Permit Trust Account to the accused’s personal account and the copies of the Work Permit Trust Account bank statement respectively.

Consy Aiva

The next witness is Consy Aiva. This witness holds the rank of Policewoman Sergent attached to the National Fraud and Anti-corruption Directorate and is the investigating officer in this case. She gave evidence in relation to her investigation. The record of interview was tendered through this witness and was marked as Exhibit S79. The witness stated that she did obtain the audit report during investigations but did not bring it to the court for trial purposes.

Summary of Prosecution submission on evidence.
10. The State submission in relation to the evidence and the elements of the charge. The State submitted that the bank statement of the accused identifies him as the person using funds drawn from the Work Permit Trust Account.
11. They further submitted in relation to the element of dishonest application to his own use and referred the court to Exhibits S76 and S77. The State further submitted that the accused was aware that the monies as portrayed in Exhibits S76 and S77 were drawn from the trust account because he personally deposited the cheques into his personal account. The cheques had the account number of the trust account at the bottom of these cheques.

12. In relation to the element of property, The State submitted that the property is the money in the sum of K969,711.80 and further submitted that this property belonged to The State as per Exhibit S74. The State finally submitted that the evidence of the State witnesses was credible and that the evidence is supported by documentary evidence. The bank evidence reveals that the accused dishonestly applied K214,443.20 to his own use and to the use of others. The difference of K755,268.60 cannot be proven to have been dishonestly applied by the accused.

13. In conclusion, The State submitted that the evidence presented in this court was overwhelming against the accused and that this court should safely find a verdict of guilty.

Summary of Defence Submission on evidence
14. The defence called two witnesses, the accused and one other, Leki Naisoro. The defence also relied on documentary evidence Exhibit D1 which was tendered through during the defence case that was the complaint made to the Police regarding certain mismanagement of public funds by the then Secretary of the Department of Labour and Industrial Relations, Mary Morola. Exhibit D1 comprises of a letter by the accused to the Police regarding the issuing of a contract worth K296,598.39 to Siale, Ta Contractors. Also, the payment vouchers which was attached to that letter.

15. The defence also relied on Exhibit D2 which is the Public Service Commission decision dated 22^nd June 2018 which reinstated the accused after he was terminated from the Public Service. In analysing the evidence, the defence submitted that the state’s evidence which are contained mainly under Exhibits S1 to S76 should be critically analysed and categorised into several parts.

16. Mr. Napu submitted that the transactions which took place between service providers and the Department of Labour and Industrial Relations should be carefully analysed. Mr. Napu submitted that the accused has no part in it, it is safe to say and asked the court to discard those transactions forming part of the evidence. Mr. Napu further submitted that they will look at cases where service was provided by service providers and the Department of Labour and Industrial Relations paid for the services directly. He submitted, in those instances representing bulk of the accounts the facts are not in dispute and therefore evidence as well.

17. Mr. Napu relied on the relevant transactions and submitted that a number of transactions which were considered irrelevant because they are irrelevant for the purposes of this particular matter. These are for the reasons that the transaction takes place between the service providers and the main department which is in Port Moresby-the headquarters. He submitted, even if the payments are drawn out of the Work Permit Trust Account, the accused is not a signatory nor a trustee to the Work Permit Trust Account. The reason for which those transactions with no relevance to the accused person was brought into this court file and amounted as facts forming allegations against his client in itself supports the proposition that the whole proceeding is maliciously made out against the accused by the then Secretary Mary Morola and for reasons already given.

18.He further submitted that from the exhibits tendered they will pick out those transactions that has no involvement of the accused at all.

19. The defence then went on to make the following submissions.

Firstly, in relation to Exhibits S7, S8, S9, S10, S11, S26, S35, S36, S40 and S42. They submitted that these are transaction involving Oswald Tamanabae. Leasing out hire vehicle to Department of Labour and Industrial Relations in Port Moresby. He is a Port Moresby based service provider and all the transactions according to evidence given by the accused, he is a Pastor who has a direct working relationship with the Department through a senior officer-Aiva Ume. All of these transactions take place in Port Moresby directly between Oswald Tamanabe and the Department of Labour and Industrial Relations in Port Moresby. It does not tie down the accused in any way. All this information must be struck out. That was the defence submission.

In relation to Exhibits S15 and S21, Mr. Napu submitted that these are cases involving transactions between Birdwing Butterfly lodge and the Department of Labour and Industrial Relations directly. This involves accommodation and hire car and other services rendered by the Lodge to the Department. The accused does not play a role in any way in between and therefore the facts are irrelevant for this court to rely on.

The defence further submitted in relation to the Exhibit S28 that it is a payment to Air Niugini in the sum of K1,267.10 made by the Department of Labour and Industrial Relations for Lemeki Sipelia air fares. This payment was made directly to the head office in Port Moresby and this has nothing to do with the accused or the Provincial Labor office in Oro Province. The defence further submitted that the evidence is irrelevant and should not be relied on by this court.

In relation to Exhibit S29, Mr. Napu for the accused submitted that it is a payment of travelling allowances made to Melva Kubu in the sum of K1,400 by the Department of Labour and Industrial Relations head office for duty travel to Tufi-Wanigela for inspections. They submitted that this payment has no relevance to the accused, and the court should not rely on this evidence.

In relation to Exhibits S49, S50 and S53, they submitted that these are transactions done between Northern Motel Ltd and the Department of Labour and Industrial Relations. They further submitted that the transactions were made directly between them to the service provider and the accused has no part to play in transaction. The defence further asked the court not to rely on that evidence.

In relation to Exhibits S51, S54 and S58 which involves transactions done between Flynn Kunungu and the Department of Labour and Industrial Relations. Flynn Kunungu is a hire car operator based in Port Moresby dealing directly with the Department of Labour and Industrial Relations and all of these transactions have noting to do with the accused and that the evidence should not be relied on.

Further, Mr. Napu submitted in relation to Exhibit S59, they submitted that it comprises a letter dated 2^nd July 2014 engaging a David Igarobae of Mamba Corporate Ltd, Popondetta Oro Province for the architectural design of the Provincial Labour Office. Two payments were made to him, one in the sum of K172,480 dated 10^th July 2014, another in the sum of K58, 624 dated 9^th December 2014. These are payment agreements made directly between the Department of Labour and Industrial Relations to Mr. Igarobae. Mr. Napu submitted that the evidence does not implicate his client and that this evidence should be rejected.

In relation to the Exhibit S64, Mr. Napu submitted that this is a payment made for the inspection to be conducted by Mr. Pius Lahari and Mr. Andrew Nusilani. These are compliance officers from the Department of Labour and Industrial Relations head office in Port Moresby. The payments were made directly by the Labour Office to the service provider. This evidence does not implicate the accused and the defence asked that this court should not rely on that evidence.

Exhibit S65 is a payment of K15,800 made to Bens Rent a Car dated 19^th November 2014 by the Department of Labour. Bens Rent a Car operates in Port Moresby and the services were procured by the Department of Labour head office in Port Moresby. The defence submitted that this evidence does not implicate their client and that the court should reject the evidence.

Exhibits S67, S68 and S69, the defence submitted that these exhibits represent various payments made to Hideaway Hotel in Port Moresby. This hotel accommodation and hospitality services represents transactions done directly between the Hotel and the Department of Labour head office. They further submitted that the accused is not implicated in any way by this evidence and that this evidence should be rejected.

Mr. Napu further submitted in relation to Exhibit S70, S71, S72 and S73. These evidence represents payments in the sum of K290,000.00, K495,000.00, K87,178.52 and K485,786.20 respectively made to Computing and Communication Institute of PNG by the Department of Labour pursuant to an agreement made between the company and the Department of Labour and Industrial Relations. The whole scheme of things regarding the transactions they submitted involved the evidence tendered does not implicate their client and accordingly the court should not rely on this evidence.

Finally, Mr. Napu submitted that the 31 Exhibits containing a number of transactions together with payments has no bearing on their client and all of those transactions relate to direct dealings between the main service providers and the Department of Labour and Industrial Relations head office. The defence submitted that all that evidence should be rejected by this court.

20. In relation to other services rendered to the Provincial Labour Office in Oro Province, the defence made the following submissions;

Exhibit S1 is fuel reimbursement,

Exhibit S6 is payment to Trevor Magei for maintenance and landscaping PL office in the sum of K13,850.00.

Exhibit S12 are 2 payments for hire car to Zacconi Titipu in the aggregate sum of K5,300.00 or thereof,

Exhibit S13 is the sum of K13,090.00 paid to Eureka Industries Ltd for outstanding hire car,

Exhibit S14 is payment to Zacconi Titipu by DLIR in the sum of K5,225.00,

Exhibit S16 is payment to Charles Moka for lease of vehicle to PL office, in the sum of K3,740.00,

Exhibit S18 is payment of K30,000.00 from DLIR to Matara No.8,

Exhibit S19 is payment DLIR to Zacconi Titipu for vehicle hire in the sum of K1,870.00,

Exhibit S20 is payment to Popondetta Stationery Supplies Ltd for supplies of stationery to PL office in the sum of K3,000.00.

Exhibit S22 is payment of travel allowance to Cliff Kala from DLIR in the sum of K1,000.00,

Exhibit S23 is payment of K1,000.00 to Agena Kova for grass cutting at the PL office.

Exhibit S24 is payment to Philip Tepi for repair and maintenance work at PL office at K3,300.00,

Exhibit S25 is payment to Norma Igarobae for vehicle hire for the Minister for Labor being a sum of K3,740.00.

Exhibit S27 is Airlines PNG for inspections at Wanigela-Tufi at K3,431.00,

Exhibit S30 is a sum of K3,000.00 paid to Matara No.8 Ltd for supply of fuel. The payment was made directly from DLIR to the supplier.

Exhibit S31 is payment of K20,350.00 to Philip Tepi for replacement of floor mat, fly wire and ceiling of PL office Oro pursuant to a tax invoice dated 5th of April 2013. Payment was made directly from DLIR Head office to Philip Tepi.

Exhibit S32 is a payment of K1,400.00 for travelling allowance for Michael Evoo, a Policeman for the inspection exercise at Wanigela-Tufi. Payment was made directly from DLIR to Michael Evoo.

Exhibit S33 is a payment of hire car for the Minister’s use at K2,550.00, payment made directly from DLIR to Norma Igarobae.

Exhibit S34 is a payment of K3,000.00 made directly to Matara No.8 Ltd from DLIR, for supply of fuel to PL office-Oro.

Exhibit S37 is payment to Treson Electrical Services from DLIR in the sum of K12,730.00 for installation of air conditioning unit in the PL office-Oro.

Exhibit S38 is a sum of K4,800.00 paid by the DLIR directly to Michael Kilori for service of PL office vehicle Oro.

Exhibit S39 is a payment of K1,450.00 to Nelson Hauro for payment of fuel supply to PL office-Oro.

Exhibit S41 is a payment of K8,030.00 from DLIR directly to RZG Computing for lap tops and desk top installations and anti-virus treatment at PL office-Oro.

Exhibit S43 is a payment of K2,000.00 from DLIR directly to Nelson Hauro for supply of fuel to PL office-Oro.

Exhibit S44 is payment of K12,000.00 paid directly by DLIR Head office to Moita Holdings for fumigation services.

Exhibit S45 is a sum of K2,000.00 paid to Nelson Hauro by DLIR directly to the service provider, for supplying fuel to the PL office-Oro.

Exhibit S46 is a sum of K4,800.00 paid to David Igarobae for service of vehicle for the PL office-Oro. Payment made directly from DLIR to David Igarobae.

Exhibit S48 is a sum of K1,500.00 paid to Nelson Hauro directly from DLIR Head office to the service provider for supply of fuel to the PL office-Oro.

Exhibit S52 is a payment of K8,000.00 to Super Green Ltd for vehicle maintenance for PL office-Oro. Payment was made directly from DLIR to Super Green Ltd.

Exhibit S55 is a payment of K25,000.00 to ACL Hire Cars from DLIR office for leasing of hire vehicle to Oro Provincial Labor office.

Exhibit S56 is a payment of K3,000.00 from DLIR to Popondetta Stationery Supplies for supplying of stationery to PL office-Oro.

Exhibit S57 is a payment of K9,850.00 paid by DLIR to Super Green Ltd for service of PL office vehicle.

Exhibit S60 is a payment to Airlines PNG Ltd in the sum of K6,358.53 paid directly by DLIR to Airlines PNG Ltd.

Exhibit S62 is a sum of K8,646.00 paid directly by DLIR to Super Green Ltd for hire of vehicles to support compliance officer’s visit.

Exhibit S63 is a sum of K7,500.00 for housing officers from DLIR for inspections in Tufi area. Payment made directly from DLIR to service provider.

Exhibit S66 is a payment to 4TY Ltd in the sum of K18,682.00 for excavating and construction of drainage and back-filling for the proposed site of new staff houses. Payment was made directly from DLIR to service provider.

21. Mr. Napu for the accused submitted that all the above transactions, the payments, were made directly into the accounts of the service providers after the requisitions were properly raised and after the services were rendered.

22. Defence submitted that the Trust Instrument which guides the expenditure of the monies in the Work Permit Trust Account under clause 8 prescribes the Secretary of the department of Labour and Industrial Relations as the Trustee and by virtue of clause 6 of that Trust Instrument the Secretary of the depart of Labour and Industrial Relations was the person authorised to appropriate the funds in the Trust Account. The Secretary was the Section 32 Officer.

23. Defence further submitted that there is no evidence that the money drawn from the Trust Account were paid to the service providers through the accused.

24. The State witness Richard Pangwiyen basically confirmed that in all of the instances, that claims were raised upon invoices being furnished, and payments were made. Having said that, he did not say that the payments were made to the Accused at any stage. In the absence of any assertions to the contrary, it was not open for the Court to deduce inferences, that the accused had a hand in the transactions in dictating the course of the payments, or diverting the course of the payments. There is no evidence to that effect and therefore is unsafe to make any such finding based on inferences alone. Defence relied on the case of Jimmy Maladina v. State (2016) SC1495.

25. The finding in Jimmy Maladina v. State (supra) states that, it is unsafe to make a finding of guilt on the back of both circumstantial evidences and inferences drawn from facts and logic.
    
26. Defence relied on the case of Paul Tiensten v. State (2014) SC1468, and submitted that dishonesty is proven when the FF3 and FF4 was raised speedily, to avoid detection of any setbacks. They argued that in the present case the Accused, is based in Popondetta and he has no control, nor influence to dictate the raising of the requisition, nor payments. Dishonesty cannot be proven at all.
    
27. Mr. Napu in summary submitted that the present case, the State did not prove by way of evidence that their client had applied the subject monies from the Work Permit Trust Account to any other purposes not intended by the trust instrument or guidelines.
    
28. They further submitted that pursuant to the case of The State v Robert Sandra & ors (2019) N8296 at paragraph 59, they cited and quoted His Honour Yagi, J as follows:
    

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

29. Mr. Napu went on to make submissions in relation to payments made directly to the accused. They submitted in relation to Exhibit S2 which is a payment of K17,500 paid to the accused. This was a payment made to the accused to apply these funds for the purposes of the official launching of the new Labour Office vehicle. The accused in his evidence said he applied the money to what it was intended for and had submitted an acquittal to the Department of Labour and Industrial Relations. They submitted that their client had provided the acquittal report, and it should be part of the audit report. The defence further went on to say that the audit report did not raise any red flag and so the accused went on to say that he was administratively charged and dismissed from the office also on the same grounds/allegations and when the Public Service Commission deliberated on his case, the audit report was furnished and he was exonerated from the allegations and reinstated. They relied on Exhibit D2 to make that submission. The defence also cited the case of The State v Ati Worbiro (No.1) (2016) N6398 to support their argument. They submitted that the prosecution did not bring the audit report into court to prove otherwise besides they have not adduced evidence from independent witnesses who will dispute the application of the above monies.
    
30. In relation to the state Exhibit S3 Mr. Napu submitted that it represents a payment of K33,730 made to the accused for inspection in the Yama/Gaipa area. They submitted that the accused was paid a cashable cheque for the purpose of the intended work. The accused gave evidence that he applied the money to where it was intended for. They further submitted that the acquittals form part of the audit report and there was no red flag being raised by the auditors or even the Secretary. They submitted that the State witness Richard Pangiwan who was brought to court was not an employee of the department, and he came and gave evidence of his opinions without basing his evidence on his audit report. Mr. Napu submitted that the evidence of Richard Pangiwan should be rejected and not be relied on by this court.
    
31. Mr. Napu also submitted relying on the case of The State v Ati Worbiro (supra) and submitted that the burden and standard of proof required under the criminal standard was applied in that the prosecution were able to establish that some portion of the monies intended for the people were applied to the personal use and the use of another in the sum of K350,000 out of the total 7.6 million kina.
    
32. Mr. Napu further submitted that in the present case the prosecution did not established that the accused did not apply the money to its intended purposes as per the guidelines under the trust instrument. They relied on the case of Maladina v The State and submitted that it is unsafe to convict on circumstantial evidence, further submitted that this court should reject that evidence.
    
33. Their client in relation to the payment made withdrawals made in Fiji further submitted that their client was required by the Secretary to attend the International meeting for the International Labour Organization in Fiji by the secretary and that he attended the meeting and on his return he accomplished the Yama/Gaipa inspections and furnished an acquittal of the funds annexed to the main report, however the prosecutions through their witness Richard Wangiwan who claimed to have compiled the audit report did not bring the audit report to this court. All in all, the defence submitted that the evidence of The State is not sufficient and lacking in weight to prove their case beyond that required standard which is beyond reasonable doubt.
    
34. Mr. Napu asked this court to find his client not guilty.
    

Analysis of Evidence

35. In summary, the following evidence is before me.
    
36. The State witness whose evidence is not helpful to the States case except that of the witness Philip Tepi. The other witnesses namely Brian Yaruso and Raymond Lim, they confirm the payment as genuine payments. Apart from these witnesses, the State did not call evidence from other service providers to assist this court. The documentary evidence by the State as per the exhibit list establishes the following general facts:
    
37. Firstly, the Secretary of the Department of Labour and Industrial relations is the section 32 officer and most of the procurement procedures are being carried out at the head office in Port Moresby this happened upon the service providers providing invoices and supporting documents of the services they have provided. The invoices appear to be faulty but there was no audit report from the experts to confirm or deny that they were faulty and still the Secretary of the Department of Labour and Industrial Relations went on to approve the claims for payment. There is no evidence of conspiracy between the accused and the Secretary
    
38. Secondly, the audit report was not part of the court deposition hence they did not try to adduce the audit report during the trial. This was a long outstanding matter dating back to 2019. Investigators and the prosecution made no attempt to have the audit report as part of the court file before the trial commenced. The witness Richard Pangiwan was called to give evidence of the audit examinations which he had conducted but his evidence cannot be supported by the audit report. Richard Pangiwan gave evidence that he was subsequently suspended and could not access the audit report, but he said a copy was given to the investigating officer.
    
39. This court also find on the evidence before it that the Police investigators evidence was that she did not incorporate the audit report into the case file and did not bring it to the court during the trial.
    
40. Thirdly, there is evidence that the accused was initially terminated from office and later Public Services Commission reinstated him as per Exhibit D2
    
41. This court also finds that all the allegations which are the subject of these proceedings were the same ones which the former Secretary Mary Morola relied on to terminate the accused, and the Public Services Commission reinstated the accused as per Exhibit D2.
    
42. In a nutshell, all these serious allegations lack credible evidence such as investigation reports, acquittals etc, except charge number 7 as per Exhibit D2, which the Public Services Commission deliberated on relate to official corruption where the accused was found by the Commission to solicit cash and kind in Popondetta in the context of his duties for personal use. The Commission found that, that, particular charge was not serious enough to warrant a termination. Also, on the evidence before this court, I find that prior to the accused being terminated by the former Secretary to the Department of Labour and Industrial Relations, Maray Morola, the accused complained to the Police to investigate Mary Morola for possible fraud allegations against the Secretary. This is evidence in Exhibit D1.
    
43. I also find that many persons are implicated, and these persons were not charged. For example, Oswald Tamanabae. The evidence relating to Oswald Tamanabae was part of the court file used to prosecute the accused. Those evidence show that the person Oswald Tamanabae’s vehicle was hired from time to time by the officers in Port Moresby and payments were made by the head office in Port Moresby. Invoices that appeared faulty submitted to the head office in Port Moresby for hire of his vehicle in Port Moresby, the payment was made to Oswald Tamanabae. Did Oswald Tamanabae own a registered Hire Car Company? The question arises as to was it a selective investigation? And secondly does this amount to malicious prosecution? This is a good case of fraud and corruption involving many, many people from the top down to the service providers. But it was not properly investigated and prosecuted.
    
44. I make these findings because of the above evidence.
    1. Faulty invoices which initiate the claims to be raised and processed. Example: one service provider has invoices that look completely different to each other from time to time.
    2. These invoices, they were submitted without supporting documents and that is a complete breach of the Public Finance Management Act principles and guidelines.
    3. The claims just went through easily and the Secretary being the Section 32 Officer authorised those payments.
    4. No evidence of acquittal of such monies were provided to this court.
    5. The investigators failed to have the audit report being part of the case file.
    6. The Public Prosecutor failed to check the state of evidence on the file and remove that which does not implicate the accused and proceed with those that implicate the accused. Everything was brought before this court to go through the evidence and find those that implicate the accused.
    7. The State submitted that this court can find the accused guilty of a lesser amount from that alleged on the indictment, which is K214,443.20.
    8. The investigators only charged the accused and left out the most important evidence which is the audit report.
    9. The prosecution relied on the evidence which is clearly do not implicate the accused in any way to use it to prosecute the accused. Why did they do that?
    10. I find that there is evidence of possible selective investigation.
    11. I also find that there is evidence of possible malicious prosecution of the accused.
    12. I also find that there is evidence of motive on the part of complainants to lay charges against the accused especially the former Secretary Mary Morola. I rely on the Exhibit D1.
    13. By law this court can find the accused guilty of a lesser amount established by the evidence.

The Law

45. The charge of misappropriation is brought under Section 383A (1) (a) of the Criminal Code Act which reads as follows:

383A. MISAPPROPRIATION OF PROPERTY.

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

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:

(a) where the offender is a director of a company and the property dishonestly applied is company property; or
(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or
(c) where the property dishonestly applied was subject to a trust, direction or condition; or
(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

46. Here I rely on the cases of Brian Kindilawi v The State (1987) PNGLR 183 where the court held that whether an accused person has a particular state of mind is a question of fact which has to be decided by the jury when there is a trial on indictment.
    
47. The court further in the case of The State v Gabriel Ramoi (1993) PNGLR 390, 392. His Honour Salika, J (as he then was) held in that case and I quote,

“The word dishonestly in Section 383A of the Criminal Code relates only to the state of mind to the person who does the act which amounts to misappropriation. The state of mind when a person applies property is a question of fact for the trial judge to determine on all of the facts presented before him and when the judge considers the facts on how the property was applied, he uses the ordinary standards of reasonable and honest people test to determine whether or not the property so applied was dishonestly applied.”

His Honour further went on to define dishonest in this manner,

“Dishonest is defined in the Oxford Advanced Learners Dictionary of Current English as, intended to cheat, deceive or mislead.”

48. I also cite the case of The State v Francis Laumadava (1994) PNGLR 291,293. His Honour Injia, AJ (as he then was) stated and I quote,

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

49. I adopt and apply those principles in the case before me.
    

Application of Law to the Facts

50. Applying the law to the facts to find dishonesty on the part of the accused in this case, the prosecution must satisfy to this court on the evidence before this court the two tests.
    
51. One is objective as per The State v Gabriel Ramoi (supra) and one is subjective as per The State v Francis Lau Madava (supra). To do this, the prosecution must rely on credible evidence that was properly adduced before this court. The evidence will establish all the facts which this court will use to determine the state of mind of the accused. I rely on the case of Brian Kindilawi v The State (supra) and the case of The State v Gabriel Ramoi (supra).
    
52. The evidence before me is not sufficient for the following reasons, firstly the lack of an audit report, secondly, the existence of an ulterior motive by the complainants to lay charges against the accused out of many other persons implicated by the evidence that came before me. Thirdly the evidence of possible selective investigation and possible malicious prosecution. The State was quite correct to submit that I should find the accused guilty of a lessor amount as established by the evidence that is before me. However, I cannot do that considering the reasons I have just alluded to, most importantly the absence of the Audit Report and the possible motive to charge the accused and using evidence not clearly implicating the accused to proceed to charge the accused. As such the element of dishonesty have not been proven beyond reasonable doubt.
    
53. There is some evidence of monies being paid into the personal account of the accused but he says he used it for the purposes which was intended for and had provided acquittals to substantiate it. Again, there is no audit report to prove otherwise.
    
54. If I find the accused guilty of a lessor amount, the conviction will not be safe as the evidence is not sufficient. This court will also be seen to be going through all the evidence and selecting only those that implicate the accused and leaving out those evidence that implicate other persons. The State had failed to prove its case beyond reasonable doubt.
    
55. I therefore enter a verdict of not guilty, and I acquit the accused Copland Gewa accordingly on the charge of misappropriation under S. 383A of the Criminal Code Act.
    
56. Those are the orders of the court.
    

_______________________________________________________________
R Luman, Acting Public Prosecutor: Lawyer for the State
John Napu, Napu Lawyers: Lawyer for the Accused