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State v Lakole [2025] PGNC 405; N11555 (27 October 2025)

N11555

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 224 OF 2023

THE STATE

v

BENJAMIM LAKOLE

WABAG: ELLIS J
24, 27 OCTOBER 2025

CRIMINAL LAW – MISAPPROPRIATION – Whether State proved amount specified in the indictment – whether different amount proved – position when no specific amount proved – consideration of evidence required in misappropriation cases – requirement to allege a general deficiency – victim alleged to be a company – evidence established a business name – whether a trial judge could or should raise a defect in the State’s case – need to put the defence case to a State witness

Facts
The owner of a service station employed the accused, a relative, to manage that business, which he did from 13 November 2019 to 19 August 2022. On 23 September 2022 the managing director complained to the police, alleging the accused had misappropriated K1,149,495.32. In the indictment, the business was named as a company, but the evidence indicated that the owner operated that business under a registered business name. The indictment did not allege there was a general deficiency.

Held
(1) The evidence did not prove the amount alleged in the indictment.
(2) The evidence did not prove a specific lesser amount.
(3) The indictment should have included the words “and which amounted to a general deficiency”.
(4) There was no evidence of the existence of the company named in the indictment, only a business name.
(5) For those reasons, a verdict of not guilty should be returned on the indictment.
(6) It was not appropriate for the trial judge to bring to the attention of the prosecution, a defect in the State’s case so it could be corrected.
(7) Aspects of the case for the accused had not been put to the State’s witness.

Cases cited
Browne v Dunn (1893) 6 R 67 (HL)
Awoda v the State [1984] PNGLR 165
R v Walsh [1971-72] PNGLR 293; [1971] PGSC 46

Counsel
J. Kessan, for the State
M. Kapo, for the defendant

VERDICT

1. ELLIS J: Benjamin Lakole, of Teremanda village in Wabag in Enga Province, was indicted on a charge of misappropriation. He entered a plea of not guilty in response to that charge, which was based on section 383A(1)(a) of the Criminal Code Act 1974 (the Criminal Code), being a charge which, because he was working as an employee, carries a maximum penalty of imprisonment for ten years.
   
2. Section 383A, so far as is presently relevant, provides as follows:
   

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

(a) property belonging to another; ...

is guilty of the crime of misappropriation of property.

3. The wording of the charge, as set out in the indictment, was as follows:
   

BENJAMIN LAKOLE of Teremanda village, Wabag Enga Province stands charged that he between 13^th day of November 2019 and the 19^th day of August 2022 at Teremanda village, Wabag in Papua New Guinea dishonestly applied to his own use or to the use of others K1,149,495.32, the property of one TEREMANDA SERVICE STATION LIMITED.
The State’s case

4. A bundle of documents, numbered at the foot of each page from 50 to 143, was tendered and admitted, without objection, as Exhibit A. The 23 September 2022 letter from Kii Kuringi, addressed to the Criminal Investigation Division (CID) in Wabag, was also tendered and admitted, without objection, as Exhibit B. Thirdly, a copy of the certificate of registration of the business name “K.K Teremanda Service Station”, together with a Taxpayer Registration Certificate, became Exhibit C.
   
5. Kii Kuringi was the only witness called in support of the State’s case. He said that the service station business that was the subject of these proceedings sold kerosene, petrol and diesel and that he also had “a construction company”. It was his evidence that both those businesses use the same bank account.
   
6. This witness said that the accused managed the service station business from 13 November 2019 to 19 August 2022 and that, when he received a bank statement, he noticed that the account balance had dropped. That was said to have caused him to report the matter to the CID and a copy of the letter he wrote became Exhibit B. When shown a document headed “Certificate of Registration of Business Name” and a page headed “Taxpayer Registration Certificate”, being the two pages that were admitted as Exhibit C, he said they were documents for “the company that I registered”.
   
7. When cross-examined, this witness said that a driver went to Lae to pick up fuel, that payments for that fuel were made by cheque, that he signed those cheques, and that the accused did not sign any such cheques. While accepting that he had a bank card that he had used, he said it was only used to buy spare parts and not for personal use. He denied that he ever went to the service station to obtain cash from the business during the period that business was managed by the accused.
   
8. This witness accepted that he did not check the bank statements during the 2 years and 9 months that the service station business was managed by the accused. He accepted that (1) the bank account balance on 20 April 2022 was K175,425.71, (2) after seeing that, he asked the accused to collect money from those to whom fuel was sold on credit, and (3) three months later the bank account balance had increased to K244,764.44. However, he did not accept that collections by the accused were the reason for that increase, saying that was the result of money from a “different source”. He did accept that the position would be clear from the bank statements.
   
9. Mr Kuringi accepted that he did not have any audit report from an accountant for the alleged deficiency (K1,149,495.32), being the amount which he specified in his letter to the CID. He accepted that the alleged amount was based on the amount he assumed should have been in the bank account.
   
10. Re-examination confirmed the opening and closing balances. The witness said his complaint was based on there being what he considered to be an insufficient amount in the bank account, which he considered to suggest insufficient income. It was noted that there were 50 loads of fuel during the period under consideration.
    

The defence case

11. No documents were tendered and the only witness called was the accused.
    
12. The accused claimed that, on 13 November 2019, when he commenced work at the service station, he was the assistant manager as there was another manager there at that time. After naming that manager, he suggested it was that manager who deposited takings during the period from 13 November 2019 to 19 August 2020 and that it was on 19 August 2020 that he was stopped from doing that by Mr Kuringi who was said to have caught that manager “red-handed” taking K5,000 in cash, being a matter the accused claimed he reported.
    
13. It was confirmed that payments for fuel were made by cheques that were signed by the owner, Mr Kuringi. This witness also said that (1) the owner had other businesses, (2) that he came to the service station every day, (3) that he took money from the business “for petty cash and to buy vehicle parts and for his personal use”. The accused also said that, while he did collect money from credit sales, he did not collect all the amounts owed to the business because he was arrested. He suggested he did not know why the owner was alleging he misappropriated “this huge amount of money”.
    
14. Under cross-examination, the accused did not accept there was income from another business of the owner. He accepted that the bank statements showed what money was deposited and taken out of the subject bank account.
    
15. It was suggested that (1) the owner normally took out more than K1,000, (2) the accused could not recall when the last such occasion was, (3) that such withdrawals occurred “three or four times a week”, (4) that the largest amount was K20,000, said to be to buy gravel and the location of Kandep was mentioned. Curiously, when asked when that K20,000 withdrawal was said to have occurred, the accused replied that it would be in the bank statement but then accepted, in answer to the next question, that a withdrawal of K20,000 in cash would not appear in the bank statement.
    
16. When asked how much money from the credit sales he collected before being arrested, the accused suggested the difference in the bank account balance, which it is noted was K69,338.73, being the difference between K175,425.71 on 20 April 2022 and K244,764.44 one day short of four months later, on 19 August 2022.
    

Submissions for the defence

17. It was contended that there was no clear evidence that the accused dishonestly used K1,149,495.32, that much of the money was used by the owner, and that some money was still owed. Further, that some money was taken by the manager prior to the accused, and that the amount alleged is a projected or assumed amount. The Court was reminded that there was no audit report to confirm that amount. It was submitted the State has failed to prove its case and the verdict should be not guilty.

Submissions for the State

18. It was noted that there was no dispute as to the opening balance in the bank account of K181,756.85 and that there was uncontested evidence that funds from sources other than the service station were deposited. Reference was made to the second page of the owner’s letter to the CID. The arithmetic for that submission is that the opening balance of K181,756.85 plus the deposit of K668,025.60 from
    “machinery/plant hire” gives K849,782.45 and that the closing balance of K175,425.71 suggests a deficiency of K674,356.66 if there were no other transactions. In other words, even if the cash received from the fuel sales only match the cost of fuel, there would be a deficiency of K674,356.66.
    
19. A submission was made that there had been continuous fuel transactions over a period of more than two and a half years, and that there had been fifty deliveries of fuel. Those purchases of fuel, as recorded in the pages numbered 50 and 51 in Exhibit A, were said to have totalled K2,723.005.12. In view of that amount, it was contended that the closing balance in the bank statement of K244,764.42 (as revealed by the bank statement at the page numbered 106 in Exhibit A) was well below what would be expected. A submission was made that there was a general deficiency of either (1) K1,149,495.32, as calculated in the letter which became Exhibit C, and as alleged in the indictment, or (2) a lesser amount.
    
20. As to the evidence of the accused, it was submitted (1) that he was not an impressive witness, (2) there were matters he did not explain, (3) he claimed to have hearing difficulties at some points during his evidence, and (4) there were matters he suggested in his evidence that were not put to the State’s witness, such as the claim that the owner withdrew K20,000 in cash.
    
21. After referring to the evidence of the owner, who referred to the opening balance and explained that other money had been deposited, it was said that the position would be explained by the bank statements. It was said that amounts were missing from fuel sales. When the Court asked whether there was any listing of credit sales in Exhibit A, it was accepted that there was no evidence of the balance owing for the sale of fuel on credit, ie fuel sales where customers were permitted to buy now and pay later. A submission was made that it was because the accused had no other person to blame that he blamed the owner taking petty cash from the business as an explanation for the deficiency. The State’s case was said to be that the only explanation was that cash was not properly deposited by the accused.
    

Relevant law

22. The elements of a charge of misappropriation that is based on s 383A(1)(a), the wording of which was quoted above, are as follows:
    

(1) the date or the period when the offence is alleged to have been committed,

(2) the place where it is alleged the offence was committed,

(3) the name of the person alleged to have committed the offence (the accused),

(4) that the accused dishonestly applied,

(5) to the use of either the accused or another person,

(6) property,

(7) belonging to another person.

23. In the Criminal Code, s 531(1) requires that an indictment must charge one offence only and not more than one offence. Considered in isolation, that provision would create difficulties where an accused is alleged to have misappropriated an amount through multiple transactions over a period as that would involve multiple offences. That is why s 532(1A) was added to the Criminal Code Act in 1981. The wording of that subsection, with emphasis added, is set out below:
    

In an indictment against a person for misappropriation of property he may be charged and proceeded against for the amount of a general deficiency even although –

(a) any number of specific applications of property have resulted in a general deficiency; and
(b) such applications of property have extended over any space of time; and
(c) the property applied belongs to different persons and has come into the possession and control of the accused person at different times and subject to different trusts, directions, conditions or duties to account.

24. The decision in R v Walsh [1971-72] PNGLR 293 at 298; PGSC 46 established that the words “general deficiency” may be used to indicate the difference between:
    
    • (1) the amount which, at the end of a period, should be possessed, and
    • (2) the amount which, at that time, the owner did possess.
      
25. That difference will usually be established by an examination of documents, such as invoices, receipts, books of account and bank statements.
    
26. To avoid the application of s 531(1), and to indicate reliance on s 532(1A), the wording of the charge in the indictment, after specifying the amount of money alleged to have been misappropriated, should add the words: “and which amounted to a general deficiency”.
    
27. It is fundamental, in both criminal and civil proceedings, that a party should put to the other party’s witness(es) any matters which are said to contradict the evidence of such witness(es).
    
28. The case commonly cited in support of that principle is Browne v Dunn (1893) 6 R 67 (HL) which was adopted in Papua New Guinea more than 40 years ago, in Awoda v The State [1984] PNGLR 165.
    
29. That principle can be said to be based on natural justice, which requires that a person should (1) know what is being alleged against them, and (2) have an opportunity to answer any such allegation.
    
30. In this case, by way of example, the suggestion made by the accused during his evidence, that there was an occasion when the owner withdrew K20,000 in cash from the business, should have been specifically put to the owner during cross-examination.
    
31. There is a further, practical consideration in criminal proceedings, namely that when an accused makes an allegation during his/her evidence, the failure to put that allegation to any State witness leaves open the explanation that the reason that allegation was not put to any State witness was that it was invented by the accused, during his evidence.
    

Issues

32. The issues requiring determination in this case are:

(1) Was an amount of K1,149,495.32 proved?
(2) If not, was a different amount proved?
(3) What is the position if no specific amount was proved?
(4) Should the indictment have alleged there was a general deficiency?

(5) Was any amount that may have been misappropriated the property of Teremanda Service Station Limited?

Assessment of witnesses

33. While the evidence of the owner, Kii Kuringi, was not damaged by cross-examination, his affirmative answer when asked if he was the owner of Teremanda Service Station Limited cannot be accepted. His evidence is otherwise accepted.
    
34. The accused, Benjamin Lakole, cannot be considered a reliable witness for the following reasons. First, he failed to accept that there was income from another business of the owner. Secondly, his claim that a withdrawal of K20,000 in cash by the owner would be in the bank statement. Thirdly, his suggestions of hearing difficulties which were intermittent and appeared to coincide with questions which he wanted to have more time to answer. Fourthly, because of the matters listed in the following paragraph, which were never put to the owner when he was cross-examined.
    
35. There were multiple matters suggested by the accused that could and should have been put to the State’s witness but were not: (1) that there was another manager, in addition to the accused, between 13 November 2019 and 19 August 2020, (2) that that manager was caught “red-handed” stealing cash of K5,000, (3) that the accused reported that matter, (4) that the owner came to the service station every day, (5) that he withdrew cash three or four times a week, and (6) that the owner on one occasion took out K20,000.

Consideration

36. The oral evidence of the owner adds little to the documentary evidence and the oral evidence of the accused, being unreliable, cannot be accepted as truthful. As a result, the outcome of the issues listed above is determined by the documentary evidence.
    

Proof in misappropriation cases

37. When police investigate a murder charge, as is unfortunately common in Enga Province, the issues are commonly confined to (1) how the victim died, and (2) whether it’s the accused who caused the death of the victim. However, in the case of a less common charge of misappropriation, there is a greater need for attention to detail as any failure to prove any aspect of the charge will result in an acquittal.
    
38. As a general rule, where a misappropriation charge relates to the operation of a business from which the accused is alleged to have taken cash, it is necessary to provide evidence of (1) the amount of cash at the beginning of the period, (2) the cash received during that period, (3) the cash paid out during that period, and (4) the amount of cash at the end of that period.
    
39. By way of simple example, if a business has $500 at the beginning of a period, receives $800 during that period and pays out $700 during that period, the balance at the end of that period should be $600 (ie $500 plus $800 less $700). If there was only $400 at the end of the period, it would follow that the amount misappropriated was $200.
    
40. The evidence that is required in any case will depend on the circumstances of that case. In this case, (1) there were cash sales and credit sales of fuel, (2) there were also receipts and payments unrelated to the operation of the service station, and (3) there was a bank account, the use of which was not confined to the service station.
    
41. As a result, to prove the amount misappropriated from the operations of the service station business, the prosecution would need to prove each of the following amounts:
    

(1) the bank balance at the beginning of the period,

(2) the receipts from the sale of fuel for which cash was paid,

(3) the receipts from sale of fuel on credit,

(4) the receipts from sources other than the service station,

(5) the amounts paid for fuel,

(6) any other amounts paid that were referable to operating the service station,

(7) the amounts paid that were not related to the service station, and

(8) the bank balance at the end of the period.

42. As the items numbered (4) and (7) do not relate to the petrol station, the analysis required in this case is to add the amounts for the items numbered (1) to (4) then deduct the amounts for items numbered (5) to (7). However, in this case, the difference between that result and the item numbered (8) would be the result of both the operation of the service station and transactions unrelated to the operation of the service station. It is therefore necessary to remove the difference between items (4) and (7) to obtain the amount of the difference attributable to the operation of the service station.
    
43. While that analysis could be done by an accountant, who then prepares a report so that there is expert evidence in support of the State’s case, that is not essential. However, the amount for each of the items numbered (1) to (8) above needs to be properly proved.
    
44. How can those amounts be proved? Although there could be oral evidence, that is usually limited to the recollections of any witness(es). It is far more common for the supporting evidence to be in documentary form. In any prosecution for misappropriation, it is necessary to consider the admissibility of the required documents. For bank statements, sections 91 to 94 of the Evidence Act 1986 need to be considered. Business records may be admissible by reason of ss 61 of the Evidence Act 1986. The widespread use of computers may make sections 64 and 65 of the Evidence Act 1986, dealing with computerised information, also relevant.
    
45. In each State in Australia, the statutory equivalent of the Evidence Act 1986 is the Uniform Evidence Act. The New South Wales statute is the Unform Evidence Act 1995 includes s 50, headed “Proof of voluminous or complex documents”, the wording of which is as follows:
    
    • (1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
      
    • (2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has-
      
      • (a) served on each other party a copy of the summary that discloses the name and address of the person who prepared that summary, and
      • (b) given the other party a reasonable opportunity to examine or copy the documents in question.
        
    • (3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.
      
46. That provision, in a case such as this, could render admissible a summary of the receipts and payments shown in many pages of bank statements, thereby removing the need for the Court to fossick and forage through those pages.
    
47. In the absence of an equivalent provision in the Evidence Act 1986, the same result can be achieved by having such summaries either (1) admitted by consent, or (2) marked for identification, so they can assist the Court.
    
48. It should be observed, at the risk of stating the obvious, that this case would have been much more straightforward if the subject bank account was only used for transactions involving the service station. Also, that it was for the owner to establish a recording system, such as for credit sales, in relation to the operation of the business.
    
49. When there is a high chance of being caught, a high chance of being convicted and a high chance of imprisonment, the criminal justice system can operate as a deterrent. Conduct that is dishonest and/or corrupt will not be deterred if prosecutions for charges for misappropriation frequently fail because they have not been properly proved, for reasons that include a failure to provide the required evidence and a lack of attention to detail.
    
50. For that reason, what is set out above (from [37] to [48]) is intended to not only provide not only a framework for this case but also guidance to police, prosecution lawyers and defence lawyers.
    

Was an amount of K1,149,495.32 proved?

51. The basis for the amount alleged in the indictment was the 23 September 2022 letter from the owner to the CID (Exhibit B). That letter suggested that an opening bank account balance of K181,756.85 plus a K668,025.60 deposit from another business, which it is noted gives a total of K849,782.45, made the owner believe that the bank account balance of K175,425,71 on 20 April 2022 was too low.
    
52. That led him to instruct the accused to collect money from those to whom fuel was sold on credit and the bank balance increased to K244,764.44 on 19 August 2022.
    
53. Among the documents in Exhibit A was a four-page table that indicated the amount paid for each of the fifty deliveries of fuel during the period and the retail price at the relevant time. The number of litres for each of those fifty deliveries was multiplied by the prevailing price to give the expected sales amount. After deducting the cost of that delivery of fuel, the expected profit was indicated. The total of the fifty amounts so obtained was K1,149,495.32, being the amount specified in the indictment.
    
54. However, there are impediments to that amount being considered to be the amount dishonestly applied by the accused.
    
55. First, that amount is what accountants would call a gross profit amount which does not allow for any expenses that were incurred. Any consideration of profit levels should be based on net profit, not gross profit. By way of example, there was no evidence as to what wages were paid during the period the accused managed the business. The accused’s record of interview (Exhibit A, pages 140 to 143) suggested there were other employees, that he did not receive wages, but they did (A21-22). There was no evidence to indicate what amount was paid in wages.
    
56. Secondly, to the extent that fuel was sold on credit and money was not collected during the period of the accused’s employment, that amount would not appear in the bank statement. To give an extreme example, if during that period there were credit sales totalling K1,149.495.32 million and no amount was received in respect of those sales, there would appear to be a shortfall in the bank statement, but it could not be said that money was dishonestly applied. Simply stated, profit does not equal cash. Further, there is insufficient evidence as to credit sales to render a profit-based analysis valid: while there was evidence of how much was received from those who purchased fuel on credit, there was no evidence of how much was sold on credit.
    
57. By reason of those matters, it cannot be said that the accused dishonestly applied the amount alleged in the indictment.
    

If not, was a different amount proved?

58. To determine whether the State proved that a different amount was dishonestly applied, it is necessary to consider each of the items numbered (1) to (8) above.
    

(1) The bank balance at the beginning of the period, namely 13 November 2019. An amount of K181,756.85 was established by a bank statement (Exhibit A, page numbered 72).

(2) The receipts from the sale of fuel for which cash was paid. Based on what appeared in the bank statements, a table was prepared (Exhibit A, pages 53 to 64). Those pages suggested deposits totalling K1,380,986.43 with associated bank charges totalling K1,288.51. However, those pages did not cover the entire period, from 13 November 2019 to 19 August 2022, only from 30 December 2020 to 20 April 2022.

(3) The receipts from sale of fuel on credit. The table referred to in (2) above included both deposits of cash and deposits from those who purchased fuel on credit.

(4) The receipts from sources other than the service station. An amount of K668,025.60 was established by an unchallenged table (Exhibit A, page 66). However, this table only spanned the period from 10 March 2020 to 24 December 2021.

(5) The amounts paid for fuel. An amount of K2,723,005.12 was established by an unchallenged table (Exhibit A, pages 51 and 52).

(6) Any other amounts paid that were referable to operating the service station. There was no separate table for these amounts which appear to have been included in the table referred to in (7) below.

(7) The amounts paid that were not related to the service station. Another table (Exhibit A, page 65) suggested that a total of K34,545.65 plus fees of K1,288.51 was withdrawn by the owner. However, this table only spanned the period from 16 February 2021 to 15 February 2022.

(8) The bank balance at the end of the period, namely 19 August 2022. An amount of K244,764.44 was established by a bank statement (Exhibit A, page numbered 106).

59. Combining that evidence in the following table is instructive:

60. Thus, the schedules provided by the owner, considered in isolation, do not provide support for the State’s case. They are plainly inaccurate because the bank balance was K774,123.35 greater than suggested by those pages (Exhibit A, pages 50 to 71). The primary reason would appear to be that table of receipts (Exhibit A, pages 53 to 64) did not include amounts for the periods from 13 November 2019 to 29 December 2020 and from 21 April 2022 to 19 August 2022 (the missing periods).
    
61. As it was accepted that the position would be revealed by the bank statements, it might be suggested the Court should consider those pages (Exhibit A, pages 72 to 106). However, even a cursory glance at those pages reveals that the bank statements for the months of December 2019, May 2022 and June 2022 are missing. Even if those pages were present and amounts deposited in relation to fuel statements during the missing periods were to be included, any resulting figure would not be probative because of the lack of evidence in relation to credit sales.
    
62. The owner’s calculation of the expected income from fuel sales could provide the basis for an allegation of a general deficiency if there was appropriate evidence of both cash sales and credit sales. Even if the Court had a complete set of bank statements, that would only show (1) amounts deposited in respect of cash sales, and (2) amounts received in respect of credit sales. In the absence of evidence showing the amount owed in respect of credit sales during the period, a valid comparison cannot be made. Put in the form of a table, the position is as follows:

63. For the reasons set out above, no amount different to what was alleged in the indictment has been proved.
    

What is the position if no specific amount was proved?

64. What property was dishonestly applied is an element of a charge of misappropriation that must be proved by the State. When the State is relying on an article, such as a car for example, or a specific transaction, the indictment can and should specifically identify that property. Where the State is relying on multiple transactions, but is not specifying individual transactions, it is said to be relying on a general deficiency.
    
65. If the State did not prove that K1,149,495.32 was dishonestly applied, but did prove a lesser amount, it would be open for the Court to find the accused not guilty of misappropriating the amount alleged, but guilty of misappropriating that lesser amount.
    
66. The reason for that may be illustrated by example. If the State proved that the accused misappropriated K1 less than the amount shown in the indictment, it is difficult to accept that the accused should be found not guilty.
    
67. However, when the State is relying on a general deficiency, rather than one or more specific transactions, it still appears necessary for an amount to be specified because s 532(1A) of the Criminal Code commences with the following words (emphasis added):
    

In an indictment against a person for misappropriation of property he may be charged and proceeded against for the amount of a general deficiency ...

Should the indictment have alleged there was a general deficiency?

68. In the Criminal Code, s 531(1), quoted above requires that “an indictment must charge only one offence and not two or more offences”. When, as in this case, the State wishes to rely on multiple transactions, it needs to avail of the relaxation of that requirement that is provided by s 532(1) which permits the State to proceed “for the amount of a general deficiency”.
    
69. As was observed in Injia on Criminal Offences in Papua New Guinea and the Pacific, University of Papua New Guinea Press and Bookshop, 2013 at p277:
    

The wording of the charge should include the following at the end after specifying the amount of money dishonestly appropriated:

‘and which amounted to a general deficiency’.

70. Those additional words serve to bring s 532(1A) of the Criminal Code into play and thereby overcome the requirement of s 531(1). In the absence of those words, s 531 operates with the result that the indictment is defective.
    

Was any amount that may have been misappropriated was the property of Teremanda Service Station Limited?

71. The documents which became Exhibit C reveal that a “K.K Teremanda Service Station” was registered as a business name on 14 May 2015 and that “Mr Kii Kuringi” was the owner of that business name. Those documents prove that the service station business was Mr Kii Kuringi, trading as K.K Teremanda Service Station. It must be noted that the registration of a business name does not create a separate legal entity. Accordingly, the owner of the service station business was Mr Kuringi.
    
72. If a company named Teremanda Service Station Limited was incorporated, there would be a separate legal entity. However, there is no evidence that ever occurred. Since the indictment alleges that the accused dishonestly applied the property of Teremanda Service Station Limited, the charge against the accused must fail because he could not misappropriate the property of a company that has not been shown to exist.
    
73. That aspect of these proceedings is fatal to the State’s case, meaning that even if the State had proved every other element of the charge of misappropriation against the accused, the verdict would still have to be not guilty.
    
74. Clearly, the indictment should have alleged that the accused dishonestly applied the property of Kii Kuringi, trading as K.K Teremanda Service Station. The prosecution could have applied, during the trial, to amend the indictment. Had that been done at any time prior to the State closing its case, it is likely that such an application would have been granted as there was nothing to suggest the accused would have been prejudiced by such an amendment.
    
75. However, no such application was made, presumably because neither the police officer in charge of this case nor the prosecutor noticed that the owner of the service station had been correctly identified. It is clear the defence lawyer also did not notice that defect in the indictment because, had that been noticed, a no case submission could have been made and, if that had been done, the case would have immediately been finalised in favour of the accused.
    
76. While the Court did notice that defect, it was not raised with the lawyers. The reason for that is that may be illustrated by an analogy. If legal proceedings were a football match, the judge would be the referee and not the coach of one of the teams. It is not appropriate for a trial judge to provide advice to the prosecution so that a defect in the State’s case can be corrected.

Conclusion

77. Hence, there are three reasons why the State’s case must be considered to have failed:
    

(1) The money alleged to have been misappropriated was the property of Kii Kuringi trading as K.K Teremanda Service Station and not Teremanda Service Station Limited.

(2) There was no allegation of a general deficiency.

(3) There was a failure to prove that either the amount alleged in the indictment, or any other specific amount, was misappropriated.

78. It is for those reasons that a verdict of not guilty must be returned on the indictment.

Verdict accordingly.
__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor