N11632
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 13 AND 202 OF 2024

THE STATE

V

THOMAS KANDAKI & WILLIAM PUIO
(NO 1)

WAIGANI: BERRIGAN J
12, 13 DECEMBER 2024; 9, 10 APRIL, 3 JUNE, 3 DECEMBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – MISAPPROPRIATION – Section 383A(1)(a)(2)(d) of the Criminal Code – Elements and principles applying – Section 7 of the Criminal Code – principles applying – Thomas Kandaki guilty of Count 1 and 2 of the indictment - William Puio guilty of Count 2 of the indictment. 

Cases cited
Havila Kavo v The State (2015) SC1450
State v Paraka (2023) N10273
R v Easton [1994] 1 Qd R 532
Brian Kindi Lawi v The State [1987] PNGLR 183
Wartoto v The State (2019) SC1834 
Banaso v The State (2022) SC2302
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173
RD Tuna Canners Ltd v Sengi (2022) SC2232 
Hagena v State (2017) SC1659
Emos v State (2017) SC1658 
Kaya v The State (2020) SC2026
Paulus Pawa v The State [1981] PNGLR 498
Ikalom v State (2019) SC1888
State v Raphael Kuanande [1994] PNGLR 512 

Counsel
L Ilave for the State
D Kayok for both accused

DECISION ON VERDICT

1.	BERRIGAN J: The accused, Thomas Kandaki and William Puio, were jointly charged with another person Billy Puio, with two counts of misappropriating K35,000 and K75,000 from Helen Mikmik and her company, A1 Links Limited, respectively between 1 April and 31 May 2021, contrary to s 383A(1)(a)(2)(d) of the Criminal Code.

2.	It was alleged that on 21 April 2021 Thomas Kandaki, a free-lance real estate agent, called the complainant, Helen Mikmik, and told her that there was a property for sale at Korobosea. The following day he introduced her to Billy Puio as the owner of the property. He and Billy showed Helen the documentation and took her to view the property. Helen and Billy entered into an agreement to purchase the property for K400,000. An initial deposit of K75000 was deposited by Helen’s company, A1 Links Limited, into Billy’s company account in the name of WMK Estate Development Construction. Helen did not hear from the accused for two weeks. When she contacted them they told her the process was taking some time. On 13 May 2021 Billy and Thomas introduced Helen to William Puio, Billy’s father, stating that he was a consultant from the Department of Lands and would expedite the process. William asked Helen to pay K25,000 to him as his fee, which she did. Not long after that Thomas told her that he required K10,000 to settle stamp duty. On 17 May 2020 Helen and Thomas went to the Internal Revenue Commission building where Helen gave him K10,000 in cash for this purpose. Helen never received title to the property and ownership was never transferred to her.

3.	All three accused initially pleaded not guilty. After the complainant was called and several documents were admitted into evidence, Billy Puio and William Puio indicated that they wished to plead guilty. Billy Puio’s plea was accepted and adjourned for confirmation pending the completion of this trial. William’s plea was not accepted and his trial with Thomas Kandaki proceeded.  

SECTION 383A OF THE CRIMINAL CODE - MISAPPROPRIATION

4.	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.
FINDINGS OF FACT
5.	There is no real controversy about the following facts which are established on the evidence.

6.	William Puio, 62 years old, is the father of Billy Puio. William was living at Saraga, 6 Mile at the time, part of which he leases to Digicel and Telikom for their towers.

7.	Billy Puio lived at Korobosea, with his mother, brother and sister. 

8.	Thomas Kandaki, 44 years of age, has been a freelance sales consultant and unregistered real estate agent for about 20 years.  He sold property to Helen Mikmik in 2020.

9.	On or about 20 April 2021 Thomas called Helen and told her that there was a property for sale at Korobosea. 

10.	On 22 April 2021 Helen Mikmik, using her former married name, Helen Soh, offered in writing to purchase the property located at section 87 allotment 2, Korobosea from Billy Puio for K400,000.  

11.	Billy accepted the offer the same day in writing attaching a copy of the title deed, asking for a deposit to be made and a contract of sale to be drawn up immediately so that the sale could be completed. 

12.	The same day K75,000 was paid to the bank account of Billy Puio’s company, WMK Estate Development Construction from Helen’s company, A1 Links Limited.

13.	On 29 April 2021 Billy gave Helen a statutory declaration stating that if they were not able to complete the sale he would give her a property at Dogura.  

14.	On 13 May 2021 Billy, Thomas and William met Helen at Brian Bell. Helen paid K25,000 from her personal bank account to William’s bank account. William signed a receipt acknowledging that “I William Puio accepting K25,000 (cash) deposited into my personal bsp account 7017535705 from Helen Mikmik Soh for doing consultancy services for Billy Puio in the presence of Thomas Nangu and Billy Puio today (13/05/21). Total instalment monies so far for the Korobosea property paid to Billy Puio stands as of today is K100,000 including this K25,000”. The receipt was signed by William, Billy, Helen and Thomas Nangu. Thomas Nangu is Thomas Kandaki’s Facebook name.

15.	Of the K25,000, K4000 was withdrawn in cash the same day from William’s bank account. Cash withdrawals in amounts between K40 and K500 were made reducing the balance to about K17,186. A further K13,000 was withdrawn in cash on 14 May in one withdrawal and a further K3000 later the same day. Withdrawals for the most part in amounts of between about K50 and K500 were made thereafter (except for a withdrawal of K1011 on 15 May and of K1000 on 16 May) until the monies were almost fully expended by 18 May 2021. 

16.	On 17 May 2021 Billy and Helen signed a contract of sale for the property, which was prepared by Thomas. 

17.	Documents retrieved by Stamp Duty Senior Advising Officer Wala Kapa Ila of the Internal Revenue Commission show that an application for stamp duty assessment was processed by the IRC’s Accounting System. Dalston Lea, applied as a First Home Buyer and was granted an exemption on the purchase of the property at volume 10 folio 2482 allot 2 section 87 Port Moresby for the execution of a sale on 9 May 2022, almost a year later, from Billy Puio to Dalston Lea for K250,000. 

18.	Jean Ilaisa, Senior Legal Officer, Litigation, Department of Lands and Physical Planning produced documents held by the Registrar of Titles for the property. This included a title that had been lodged with the Registrar of Titles Office as an owner’s copy of the title for the property and found to be “fake” by the Registrar. She also produced the genuine and official copy of the title. 

19.	It is not clear when the “fake” title was submitted to the Registry or in what circumstances or when it was determined to be fake but there is no doubt on the evidence of Ms Ilaisa and on its face that it is not a genuine copy of the title. When compared with the Registrar’s copy, the very first page of the title dated 4 November 1966 map refers to the first lease being given to a different person from the genuine title (ie James Douglas Scott instead of Peter Rodney Petit), the maps attached to the title don’t match, and the history of title holders is very different. It appears to be a doctored title for another property. It suggests that the property was transferred to Ramu Nico Management (S 49991) on 20 November 2008, then to Yuxiang Gu on 16 November 2012 and then to Billy Puio on 6 March 2017.  

20.	The Registrar’s copy of the title shows that the property was previously transferred to Ramu Nico Management Ltd on 20 September 2006. There are then four entries all apparently issued by the Acting Registrar of Titles to the effect that on 23 May 2022 being satisfied that the original instrument was lost, “this Official Copy” was entered and then on 21 June 2022 being satisfied that the registered proprietor’s copy had been lost, a replacement “owner’s copy” was issued. On 19 August 2022 title was transferred to Billy Puio at 150pm. Five minutes later the title was transferred to Dalston Lea at 155pm. The documents on the file include letters of offer from Lea himself and from his lawyers, Raynet and Kaki Lawyers, dated 4 and 6 May 2022, respectively. The contract for sale, also apparently signed in May, was prepared by the same lawyers. Those lawyers are also the lawyers for the sale to Billy Puio on 6 March 2017 on the “fake” title. 

21.	As Ms Ilaisa indicated the transfer of title to Billy and then immediately to Dalston Lea is peculiar. As it stands, however, the title establishes that Billy Puio did not have title to the property until 19 August 2022 at which time he immediately transferred it to Dalston Lea. 

VERDICT: WILLIAM PUIO 
22.	By William’s own admission in both his record of interview, which he adopted in evidence, and in oral evidence, Billy and Thomas came to see him at 6 Mile and asked him for a favour. They wanted him to meet with a woman from Southern Highlands, whom he later came to know as Helen Mikmik, who wanted to purchase the property at Korobosea. They told him that they needed money to fix or prepare the title. She was reluctant to trust them and so K25,000 would be deposited to his account and he would withdraw it and give it to them for that purpose. He followed Billy and Thomas to Brian Bell Home Centre at Gordons in his own car where Billy introduced him to Helen. 

23.	In the record of interview he said that Helen told him that she wanted to make a deposit of K25,000 to do work at the Lands Department. She asked for his account number. A short time after receiving the monies he deposited them to Billy’s account and was given K1000 for his time. Later in his record of interview he said that he paid a Lands officer but did not know who it was and then gave the money back to Billy.  He was asked if he had done what he was asked to do as a consultant and he said, yes. As to what he did: “Billy and Thomas came to me saying that you’re a consultant to the lands department to convince Helen to make a deposit”. In answer to the question “Did you genuinely believe that you would do what you were paid to do” he said “No”. As to the progress of his consultation work: “I am not a consultant to lands department. They just used me as a consultant to get the money from Helen”. (Q&A 129). He said that he gave them the money back but he could not recall how. 

24.	In testimony he said that Billy called him and told him that the money had cleared to his account and then instructed him to transfer the money to the accounts of three different people and that he kept K5000 for himself. When Q&A 38 and 41 of the interview were put to him in cross-examination he said that Billy and Thomas approached him and told him that Helen would deposit to his account and he should say that he can be a consultant and “because they are my boys” he accepted the K25,000 into his account and that is why he followed them. When asked why they used his account he said “I don’t know maybe Helen didn’t trust them both. I am a father and so she maybe trusted me, that is why she wanted to deposit to my account”. He admitted that he told Helen that he was Billy’s father and that he attended the meeting knowing that his presence was to engender trust on the part of Helen in Billy and Thomas. He admitted that he told Helen that he was a consultant within the Department of Lands. When asked whether he had ever been a consultant with Lands he said that he had done consultant work with the Department but admitted that he did not do so in this case.

25.	I reject William’s evidence that he has ever been a consultant with the Lands Department. He admitted in his record of interview that he was not a consultant. Regardless of that he clearly understood that he was being used to generate confidence in Helen by pretending that he was a consultant with the Lands Department and would assist with fast tracking the purchase when he had no intention of doing so. 

26.	Analysing the bank statements there were no monies transferred directly from William’s account to other accounts. It is possible that the large withdrawals at the counter were deposited to other accounts. It seems to me that he personally used at least K9000 given the smaller size or nature of certain expenditures directly made from his account. 

27.	Regardless of the extent to which William personally benefited from the K25000, however, I am satisfied beyond reasonable doubt that he applied all of the monies to his own use or the use of others when he did not use them for the intended purpose of acting as a consultant to fast track Helen’s purchase. In this regard I accept Helen’s evidence that she was told there was some delay in the Land’s Department and that the purpose of William was to fast track the process and not that there was any issue with the title.  

28.	The term “applies” in s 383A of the Criminal Code should be given its ordinary meaning, such that to apply property involves some use or dealing with it. The section nevertheless stops short of requiring that there is some consumption, expenditure or dissipation of the property, alteration of its form or utilisation of it to secure some collateral material benefit, although these may be involved.  An application to one’s own use or the use of another will involve some deflection from the purposes of the person to whom the property belongs: State v Paraka (2023) N10273 at [314] to [316], amongst others, adopting and applying R v Easton [1994] 1 Qd R 532.

29.	I am satisfied beyond reasonable doubt that William applied the monies to his own use dishonestly. It was dishonest according to the standards of honest and reasonable people to apply K25000 for his own use and the use of others when he knew those monies were obtained on the false pretext that he would assist as a consultant when he was not a consultant, had no intention of acting as a consultant and intended to induce Helen to have trust in Billy and Thomas by saying so. I have no doubt given his age and intelligence that he appreciated that his conduct was dishonest according to those standards: Brian Kindi Lawi v The State [1987] PNGLR 183; Wartoto v The State (2019) SC1834 adopting and applying Havila Kavo.

30.	There is no dispute and I am satisfied beyond reasonable doubt that the monies were property as defined under s 383A(3), Criminal Code. The monies belonged to Helen Mikmik pursuant to s 383A(3)(d), Criminal Code. The monies were hers when she handed them over and she maintained a legal and equitable interest in or claim to the monies. She would never have handed them over if she knew that William was not a consultant and was not going to assist.

31.	On one view William might, perhaps should, also be found guilty of aiding Thomas to misappropriate the K10,000 given to him for stamp duty on the basis that any monies that were subsequently given by Helen towards the sale were dishonestly applied as a result, at least in part, of William’s deliberate action to falsely create confidence in Billy, Thomas and the sale. 

32.	Whilst it is not necessary to establish that an accused knew that a particular offence would be committed on a particular day at a particular place, the prosecution must show that the accused knew that an offence of the kind that was committed was intended, and with that knowledge did something to help the offender commit it: Banaso v The State (2022) SC2302 at [90] considering Imiyo Wamela v The State [1982] PNGLR 269; Karani and Aimondi v The State [1997] SC540.

33.	There is insufficient evidence to show that William was part of a broader conspiracy with Billy or Thomas and on balance I cannot be satisfied beyond reasonable doubt that he appreciated that other monies would be dishonestly applied. 

34.	In the circumstances, on Count 2 William is found guilty of misappropriating the lesser amount of K25,000. The value of property is not an essential element of s 383A, Criminal Code. Furthermore, 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), Criminal Code.

35.	There is no evidence that raises any honest claim of right without intention to defraud, which has been excluded beyond reasonable doubt: s 23(2), Criminal Code; Wartoto, supra and the cases applying.

36.	The evidence is insufficient to establish that William was involved prior to 13 May 2021.  He is acquitted of Count 1.

VERDICT: THOMAS KANDAKI

37.	Helen Mukmuk’s evidence was that Thomas was the “main man”. He was the one who contacted her on 20 April 2021 and told her that he had a property that was worth more than K3m but was being sold for a very low price. He was “convincing”. The following day he came with Billy who produced a valuation report and owner’s copy of the title. They inspected the property and went back to her office. He told her the property was for sale for K600,000. She told him she did not have K600,000 but offered K400,000 which he said was fine. She wrote up the letters of offer and acceptance. She was worried someone else would get the property so she went to the bank with Billy and Thomas and transferred K75,000 to Billy’s company account. Thomas told her that he would prepare the documents for the Lands Department and come back within days. 

38.	She called them and on 29 April Billy called her back and said that the people in the Lands Department were not doing the paperwork quickly. He gave her a stat dec saying that if it did not work out with this property he would give her a property at Dogura. Billy mentioned at some stage that she could move in on 1 May. That day passed and she kept calling them. 

39.	On 13 May Billy told her that they had a contact at Lands. They met at Brian Bell. Billy and Thomas brought William Puio, Billy’s father. They said that he had contacts at Lands and could fast track the work. William said “you guys have to pay me some money for my work” and Billy told her to pay K25,000, which she did. They signed a receipt. William said it would take 3 to 5 days to facilitate and so wait and Thomas will complete everything. 

40.	Thomas provided a contract of sale to her as her agent which she signed. The contract is dated 17 May 2021. 

41.	On 17 May 2021 Thomas came to her office and said that while Billy and William were still working on it in the Lands Department he would help her go and do the stamp duty with IRC because everything must be ready at the same time. He said that he had already gone to IRC and calculated that the stamp duty would be K10,000. She took him in her car and dropped him at the IRC downtown building. She gave him K10,000 in cash. He said that he knows some friends there and they will do it quickly. He went inside. She waited in the car for about ten minutes. He came back with a document and a registration number handwritten in red ink. 

42.	On Sunday, 19th, she saw Thomas post some photos on Facebook and saw that he was at home, with caskets. She was wondering how he got there so fast so she called him and he told her that his father had passed away and so he went to Mt Hagen and she felt sorry for him and deposited K500 to his account on Monday. 

43.	After that her agent Thomas was away in the village. She was lost. Billy and William’s phones were off. After Thomas was gone for a long time she arranged a meeting with the Registrar of Titles Office where she met with the Deputy who informed her that the property did not belong to Billy Puio following which she reported to the police. It is not clear when that was but it must have been sometime before 23 June 2022 when a search warrant was served at BSP’s head office in relation to the complaint. 

44.	Under cross-examination she denied that she arranged with someone at the Lands Department to look at the documents provided to her by Billy on 22 April 2021. Thomas did not tell her that there would be any issues with the property. He never said anything. He was the one who brought the property to her. She had bought property through him before. She trusted him. Thomas told her to pay K10,000 stamp duty.  

45.	Thomas Kandaki says that Billy told him that he was selling his property. Billy was aware that he was a freelance real estate agent. He thought of Helen because she told him that if he saw similar properties to contact her. The location was good and Billy was willing to sell at K600,000 at the lowest. Helen wanted to go for an inspection. He jumped on her vehicle and went with her alone for the inspection. At the property Billy’s family, mother, sisters, wife were there. His sister opened the gate and let them inspect. Helen was satisfied and wanted a copy of the title. He called Billy. The next day another agent picked him and Billy up and they met Helen at Waigani. He and Billy got into Helen’s vehicle. Billy did not bring a copy but the owner’s original. It looked genuine. Helen left and called an hour or two later and told him that the title was not genuine or had some errors or something. He told her it looked genuine how did she know and she said she got clarification from Lands. He told her if that is the case they do not have to proceed and walk away. She asked him to organise a title officer from Lands which he did. He had the contact number of a senior lands title officer, Alphonse Robert. Alphonse met with him and Helen at the Hilton and after looking at the title told her it was not genuine. So Thomas told her not to proceed further and Helen agreed. His role as a consultant came to a stop at that time. The next day Helen called him and told him that she had spoken to Billy and he was willing to sell it to her for K400,000. He told her the title is not in order, why is she wasting time and putting money at risk. She said she wanted the property. It is a manmade thing and can be fixed. She wanted to take the risk. She told him to go ahead and do up the offer and acceptance and come to the Hilton where Billy and Helen were waiting for him. They both signed the offer and acceptance and Helen told him that she had made an arrangement with Billy that she would pay K75,000 up front. The three of them went to BSP Central Waigani and she deposited the money. 

46.	He has no idea how the figure of K75,000 was reached. Helen was calling him and asking him what was happening with Billy. So he called Billy but Billy told him he is dealing with Helen and it has nothing to do with him. He told Helen that she had to sort it out with Billy herself. Then Helen called him and said that Billy was going to bring his father Wiliam Puio to fast track and get the title fixed. She told him to come down to Brian Bell, Gordons. William and Billy picked him up and they went to Brian Bell where Helen was waiting for them. They had prepared an acknowledgement for K25,000. He was surprised to see that William’s name and phone number was on it. Everyone signed and they went to the bank, BSP Central. The arrangement was done between Helen and Billy, he was just told to come and observe. 

47.	The process took longer than expected. Helen was calling him and following up with him on what Billy and William were doing so he was calling them and they said not to worry. One time Helen called him to the Stanley Hotel and she had the signed contract plus transfer instrument. She wanted him to get stamp duty done while they were completing the process and paying for title fees. He agreed. She gave him K10,000 plus the contract of sale and he went into the IRC building and gave it to a stamp duty officer to get stamped. He waited an hour before collecting the documents before going to give them to Helen who was then at Brian Bell. As a second time buyer Helen was supposed to pay 5% of the buying price, K20,000. 

48.	In conclusion he played no part in the process. He was only called to witness and help. He was just following instructions. Helen knew very well what she was doing. 

49.	I make the following findings having heard and observed the witnesses whilst giving evidence and having regard to their evidence by itself and in the context of the case as a whole, together with logic and common sense, and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173. I remind myself that an untruthful witness may be confident and convincing, whilst a conscientious truthful witness may be hesitant and uncertain: see RD Tuna Canners Ltd v Sengi (2022) SC2232 at [35].  

50.	Helen’s memory about some details, including dates is not precise, which is not unexpected given the lapse of time. She seems to be confusing the day she signed the offer and acceptance letter, 22 April 2021, and paid K75,000 with the day she signed the contract which was later, ie 17 May 2021. In general terms, however, her evidence was clear and consistent, including with the documentary material.

51.	I am unable to accept Thomas Kandaki’s version of events. I reject the denials contained in his record of interview. He denied knowledge or recollection of certain events, for instance the payment of K75,000 to Billy’s account and the meeting between William and Helen until he was shown documentary or photograph evidence to the contrary. 

52.	His oral testimony that Billy handed over to Helen what appeared to be the original owner’s copy, that she was allowed to leave with it, that she checked it with someone in the Lands Department but then asked Thomas to arrange for another person, Alphonse Robert, from within the Lands Department to come and check it without having access to records at the time makes no sense. Thomas’ evidence as to what was wrong with the title was vague. The evidence about Alphonse Robert was not put to Helen in cross-examination but it was in Thomas’ record of interview and the State was aware of it. Whilst Helen was not expressly asked by either counsel about Alphonse or a meeting at the Hilton she made it clear that she was not aware of any defect in the title.  I reject Thomas’s evidence that Helen was aware that there was a problem with the title or that he told Helen to walk away from the transaction. That is inconsistent with the evidence of both Helen and William and the facts that show that Thomas was involved at all key stages and was responsible for preparing several key documents, including the contract of sale. His evidence that he was aware that there was an issue with the title from 21 April 2021 and yet drafted letters of offer and exchange, the contract for sale, and paid stamp duty, whilst an experienced real estate agent, out of some willingness to assist and without any expectation of commission is implausible. Thomas’ evidence about the payment of stamp duty is equally inconsistent with common sense and logic. 

Count 2  

53.	As for what happened with William Puio, I remind myself that it is dangerous to convict on the uncorroborated evidence of an accomplice. Where evidence of an accomplice is involved, the trial judge should take heed of such danger and warn himself: Hagena v State (2017) SC1659; Emos v State (2017) SC1658; The State v Nataembo Wanu [1977] PNGLR 152, The State  v Titeva Fineko [1978] PNGLR 262, The State v Amoko – Amoko [1981] PNGLR 373; The State v Francis Laumadava [1994] PNGLR 291; Private Nebare Dege v. The State (2009) SC1308. 

54.	I have considered that William may be trying to minimise his responsibility for the monies obtained from Helen on 13 May 2021 but having heard and observed him and considering his evidence in the context of the other evidence I accept William’s evidence that he became involved at the request of both Billy and Thomas.  On that evidence I also reject Thomas’s evidence that he only knows William Puio because he is a significant figure in the community. William described Thomas as one of his “boys”. The fact that Thomas is known to William is also consistent with other evidence which suggests that Billy and Thomas know one another. 

55.	I find that Thomas went with Billy to see William and asked him to pretend to be a consultant for the purpose of obtaining money from Helen when he knew that William had no intention of acting as a consultant to assist Helen. Both Thomas and Billy brought William to the meeting with Helen and were present when he lied to her. Thomas was a witness to William’s written agreement with Helen and the payment of monies by her. 

56.	Accordingly, I am satisfied beyond reasonable doubt that Thomas aided, counselled and procured William to misappropriate K25,000 under Count 1: s 7(1)(b)(c) and (d). I apply the principles outlined in Banaso, supra at [50], [66], [67], [70] to [97]; as summarised in State v Paraka (2023) N10273 at [354] to [366].    

57.	In particular, I am satisfied beyond reasonable doubt for the purposes of s 7(1)(c) of the Criminal Code that: a) the offence of misappropriation was committed by William for the reasons outlined above; b) Thomas knew the essential facts constituting the offence, including William’s dishonest state of mind; and c) intentionally aided, assisted and encouraged, William to commit the offence: Banaso, at [97]. 

58.	I am further satisfied beyond reasonable doubt for the purposes of s 7(1)(d) of the Criminal Code that: a) the offence was committed; b) Thomas knew the essential facts constituting the offence, including William’s dishonest state of mind; and c) counselled, that is urged, advised or solicited William to commit the offence: Banaso at [78].

59.	Furthermore, I am satisfied beyond reasonable doubt for the purpose of s 7(1)(d) that: a) the offence was committed; b) Thomas knew the essential facts constituting the offence, including William’s dishonest state of mind; and; c) procured William to commit the offence, that is caused, or persuaded William to commit the offence: Banaso at [79].  

60.	I am further satisfied beyond reasonable doubt on Count 2 that Thomas applied the K10,000 given to him by Helen for the purpose of paying stamp duty to his own use.

61.	I find beyond reasonable doubt that the monies were never applied for the purpose provided by Helen. 

62.	I find on Helen’s evidence that Thomas came to her office and told her that he would arrange payment because everything had to be paid at the same time and that he had already gone to the IRC and been told that the amount due was K10,000. 

63.	Thomas’ evidence as to the circumstances in which he paid the monies at IRC was vague. K10,000 was not consistent with what Helen was required to pay as he well knew and he was unable to explain on what basis he was going to pay K10,000 in the circumstances. K10,000 is also inconsistent with the undated purported “stamp duty original document stamp” on the contract of sale which states that the sale was “exempt”, which was also incorrect. The purported IRC reference number written on the contract, “85432” is greater than the number issued by the IRC a year later for the Lea contract: “SD 65185”. The IRC’s records show that stamp duty was paid for the same property by Lea in May 2022. Whilst the statement of Mr Kapi did not expressly state that there was no other record of stamp duty being paid with respect to the same property, the fact that the IRC’s records show that stamp duty was paid for the same property by Lea in May 2022 and that the vendor was the same, namely Billy Puio, and did not produce other records, further supports the inference that stamp duty was not paid in 2021. 

64.	In making this finding I have taken into account that the State did not tender the transfer instrument shown to Thomas in his record of interview but its absence does not raise any doubt in my mind. By his own admission Thomas made all arrangements for the purported payment, including preparing documentation, and having it signed by Billy and Helen. It is implausible that an experienced real estate agent acting in accordance with his duty as an agent and his responsibility to his client would pay stamp duty on the purchase of a property in respect of which he knew that there was a problem with the title. 

65.	The fact that Thomas left or purportedly left for Hagen just one or two days later and thereafter did not assist Helen only strengthens my view that he applied the stamp duty monies to his own use or the use of others. 

66.	The combination of circumstances leads to the inevitable conclusion beyond reasonable doubt that the accused applied the monies to his own use and the use of others and not for the payment of stamp duty.

67.	The monies were property pursuant to s 383A(3)(a), which property belonged to Helen. She retained ownership in the monies until they were applied for the purpose or according to the condition upon which they were provided: Brian Kindi Lawi v The State [1987] PNGLR 193, a Havila Kavo, supra; Wartoto, supra; and Kaya v The State (2020) SC2026, amongst others.

68.	I am satisfied beyond reasonable doubt that it was dishonest according to the standards of honest and reasonable people to apply the monies intended for the purpose of paying stamp duty to his own use or the use of others and I have no doubt given his age and experience that he appreciated that it was dishonest according to those standards.

69.	The State’s evidence excludes beyond reasonable doubt any other reasonable conclusion that is inconsistent with the guilt of the accused: Paulus Pawa v The State [1981] PNGLR 498 approving The State v Tom Morris [1981] PNGLR 493. I rely on the principles summarised in State v Paraka at [240] to [245].

70.	In making these findings I make it clear that the evidence excludes beyond any reasonable doubt any claim by the accused that he acted honestly and without intention to defraud by using the monies to pay stamp duty: s 23(2), Criminal Code; Wartoto, supra and the cases applying. 

Count 1

71.	I am satisfied beyond reasonable doubt having regard to the totality of the facts and circumstances that Thomas was working with Billy from the beginning to sell the property to Helen knowing that Billy did not have title to the property.  Intention may be inferred from examining an accused’s conduct prior to, at the time of, or subsequent to the act constituting the offence:  Ikalom v State (2019) SC1888 at [23]; State v. Raphael Kuanande [1994] PNGLR 512. As such, the facts and circumstances as to what happened after the payment of K75,000 are also relevant:

•	Billy did not have title to the property until 2022.
•	Thomas and Billy are known to one another. 
•	Thomas is an experienced real estate agent, with contacts at the Lands Department and IRC.
•	He sold property to Helen just one year earlier.
•	It was Thomas who told Helen about the property and was persuasive about it. 
•	It was Thomas who took Helen to the property. Helen says that Billy was present. Thomas says that he took Helen on his own. Either way it was Thomas who introduced Helen to the property. If Thomas took her on his own then by his own admission not only did he know where the property was but that Billy lived there. He was allowed into the property in Billy’s absence and knew that the person who opened the gate was Billy’s sister. 
•	I also accept Helen’s evidence that Thomas was the primary person through whom she dealt albeit there was some direct communication between herself and Billy.
•	The letters of offer and acceptance show that Thomas was also Billy’s agent. There is some discrepancy about whether it was Thomas or Helen that prepared the initial offer and acceptance letters on 22 April 2021. Helen says she wrote them up but Thomas admits that he prepared them at her request and I find that he did as he was the real estate agent and that was the effect of Helen’s evidence. 
•	Billy’s acceptance calls for Helen to act with urgency: “make a deposit and have the contract of sale drawn up immediately so that we close the sale quickly because of the fact that I really need some funds now to sort out some things so that’s why I’m off loading my property”. Billy’s letter directs Helen to seek assistance from his agent, Thomas, if she requires further information and provides two phone numbers. It concludes “We are looking forward to hear from you soon”.   
•	Thomas was present at the bank when the deposit of K75,000 was paid into Billy’s company’s account following the exchange of letters. 
•	Thomas told her that he would prepare the documents for the Lands Department within days.
•	By his own admission, it was Thomas who prepared the contract of sale.  It was he who brought the signed contract from Billy to Helen for her to sign on 17 May 2021.   
•	The contract of sale document between Billy and Helen is in exactly the same format as the contract between Ramu Nico Management and Billy which was purportedly executed in 2017, including the various boldings and the divergent font types and sizes at different points, eg the heading of the contract of sale, the words “between”, “the Vendor” “and” “the Purchaser”, the vendor and purchaser, albeit the names are different, and the text of the body of the contract. 
•	Billy and Thomas procured William to obtain monies from Helen on false pretences.
•	That and Thomas’ misuse of the monies intended for stamp duty are consistent with an ongoing course of conduct on Thomas’ part. 
•	The fact that Thomas did not pay the monies to the IRC for the purpose of meeting any stamp duty that might have been owing on the property shows that he was aware that the purchase would not be finalised.  
•	Within just one or two days of providing Helen with the purported stamp duty documents Thomas effectively disappeared. Regardless of whether or not his father actually died or whether he did in fact go to Hagen, he was her agent and yet he left without telling her where he was going and made no attempt to assist her thereafter. 
•	Helen was also unable to contact Billy or William. 

72.	There can be no doubt on the evidence that Billy knew he did not have title to the property and that he dishonestly applied the K75,000 Helen gave him to purchase the property. It was dishonest according to the standards of honest and reasonable people to take Helen’s K75,000 when he did not have title and I am also satisfied beyond reasonable doubt that Billy knew that it was dishonest according to those standards. 

73.	I am furthermore satisfied beyond reasonable doubt that Thomas aided Billy to dishonestly apply the K75,000 paid by Helen to his own use by introducing Helen to Billy, encouraging her to purchase the property, drafting and/or witnessing the letters of offer and acceptance, accompanying Billy and Helen to the bank for the payment of K75,000 and undertaking to prepare the contract of sale documentation when he knew that Billy did not have title to the property. 

74.	In particular, I am satisfied beyond reasonable doubt for the purposes of s 7(1)(c) of the Criminal Code that: a) the offence of misappropriation was committed by Billy; b) Thomas knew the essential facts constituting the offence, including Billy’s dishonest state of mind; and c) intentionally aided, assisted and encouraged Billy to commit the offence: Banaso, at [97]. 

75.	Even if I were to find that Thomas hoped at the initial stage that Billy would be able to put the title into his name it would not preclude his liability. He knew it was dishonest for Billy to receive monies for the purchase of a property he did not have title to and he deliberately aided him. I make it clear, however, that the totality of the circumstances including Thomas’s experience, his role, and the short time frame between the introduction of Helen to Billy and his disappearance after the receipt of stamp duty monies excludes the possibility he believed that Billy would obtain title. 

CONCLUSION

76.	On Count 1, William Puio is acquitted of the charge of misappropriating K75,000 contrary to s 383A(1)(a)(2)(d) of the Criminal Code. 

77.	On Count 2, William Puio is found guilty of misappropriating K25,000 contrary to s 383A(1)(a)(2)(d) of the Criminal Code.

78.	On Count 1, Thomas Kandaki is convicted of the charge of misappropriating K75,000 contrary to s 383A(1)(a)(2)(d) of the Criminal Code. 

79.	On Count 2, Thomas Kandaki is convicted of misappropriating K35,000 contrary to s 383A(1)(a)(2)(d) of the Criminal Code.

Verdicts accordingly. 
___________________________________________________________
Lawyer for the State: Public Prosecutor		
Lawyer for the accused: Public Solicitor