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State v Niso (No 1) [2005] PGLawRp 34; [2005] PNGLR 34 (15 November 2005)

[NATIONAL COURT OF JUSTICE]

THE STATE

V

DERRICK SAKATEA NISO (NO. 1)
WAIGANI: GAVARA-NANU J
15 February & 15 November 2005

CRIMINAL LAW – Evidence – Circumstantial evidence – Inferences to be drawn – Overall view of all the circumstances – Application of commonsense and logic in arriving at the verdict – Evidence leading and pointing to the guilt of the accused – Demeanour of the accused in the witness box – Accused not convincing as truthful witness – Conduct of the accused indicative of having guilty conscience of the crimes charged – Evidence of conspiracy between the accused and others to defraud – Conduct of an accomplice establishing conspiracy.

Facts

The accused was charged with four (4) counts of, namely, conspiracy with others to defraud the Bank of Papua New Guinea of K500,000.00; and forging a Westpac Bank (PNG) cheque account application form in the name of one Raymond Mell; and knowingly and fraudulently uttering a false document purporting to be a Westpac Bank (PNG) Ltd cheque account application form in the name of one Raymond Mell; and finally that he dishonestly applied the amount of K500,000.00 belonging to the Bank of Papua New Guinea to his and others’ personal use.

Held

1. The evidence against the accused being circumstantial, the case must be determined upon the overall view of all the circumstances. The State v Tom Morris [1981] PNGLR 493 and Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, both applied.
   
2. On the evidence the accused was found guilty, beyond all reasonable doubt, on all four (4) counts.
   

Papua New Guinea cases cited

Allan Oa Koroka v The State [1988-99] PNGLR 131.

Garitau Bonu and Rossana Bonu v The State (1997) SC528.

Paulus Pawa v The State [1981] PNGLR 498.

The State v Ben Simakot Simbu (2004) N2573.

The State v Cosmos Kutau Kitawal & Or. (No. 1) (2002) N2266.

The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48.

The State v John Kondi (1991) N956.

The State v Kwale Dire (2001) N2178.

The State v Tauvaru Avaka and Michael David Kaipu (2002) N2024.

The State v Tom Morris [1981] PNGLR 493.

Other cases cited

Barca v The Queen (1975) C.L.R. 82.

Counsel

S Kesno, for the State.
P Sapu, for the accused.

15 November 2005

Gavara-nanu j. The accused is charged with four counts. The first count is that he, between 30 August, and 4 October, 2002, at Port Moresby conspired with one Soni Harvies and other unknown persons to defraud the Bank of Papua New Guinea of five hundred thousand kina (K500,000.00), contrary to s407 (1) (b) of the Criminal Code Act, Chapter No. 262 (hereinafter referred to as ‘the Criminal Code Act’).

The second count is that he, on 4 October 2002 at Port Moresby, forged a Westpac Bank (PNG) Ltd cheque account application form in the name of one Raymond Mell, contrary to s 462(1) of the Criminal Code Act.

The third count is that he, on 4 October, 2002 at Port Moresby, knowingly and fraudulently uttered a false document purporting to be a Westpac Bank (PNG) Ltd cheque account application form in the name of one Raymond Mell, contrary to s463 (2) of the Criminal Code Act.

The fourth count is that he, between 7 and 21 October 2002 at Port Moresby, dishonestly applied to his and to the use of others, five hundred thousand kina (K500,000.00), the property of the Bank of Papua New Guinea, contrary to s383 A (1) of the Criminal Code.The undisputed facts:

The accused was the senior clerk and supervisor in the General Ledgers Section of the Bank of Papua New Guinea. By 24 October, 2002, he had been working with the bank for 22 years.

In June, 2002, a Mr. Raymond Mell invested K500,000.00 in treasury bills with the bank for 91 days. The investment matured on 30 August 2002, for which he was paid K12,147.00 in interest. He then asked for the principal to be rolled over for another 91 days. So on the same day, viz. 30 August 2002, a bank cheque No. 22168 for K500,000.00 was raised by the Registry Section of the bank in favour of Mr. Mell. The internal cheque was to roll over the investment in the domestic market. After the cheque was processed by the Registry Section and reinvested in the treasury bills, the cheque was sent to the clearing section for payment.

The cheque was cleared by the clearing section, but it was not stamped. The staff who handled the cheque in the clearing section was Miss Theresa Aisa. Her statement was tendered by consent. There, she says the cheque was processed at about 4.08 pm that day. She says because she was running behind time for exchanges and due to high volume of work, she was rushing and stamping the documents fast, and in the process, she did not stamp the cheque to indicate that the cheque had been processed and was therefore dead.

On 2 September 2002, the cheque was delivered to the General Ledgers Section from the clearing section as a clean or live cheque, as it was not stamped at the clearing section. That was a costly error. The cheque was delivered to the general ledgers section in a batch with other cheques, vouchers and warrants accompanied by the computer print out of all those documents.

At the general ledgers section, the documents were balanced and cross checked against the computer print out by Mrs. Nelson. The documents including the cheque were then left by Mrs. Nelson on her desk for a few days for purposes of crossing and stamping them later. All those documents including the cheque were for 30 August 2002.

A few days later, Mrs. Nelson crossed out the documents, stamped them, then packed them in a box for reconciliation and filing.

On 4 October 2002, a bogus cheque account No. 6000680347 was opened at the Westpac bank, Port Moresby, under Mr. Mell’s name (hereinafter referred to as ‘the bogus cheque account’) with K100.00.

On 7 October 2002, the same bank cheque No. 22618 for the amount of K500,000.00, made in favour of Mr. Mell, which went through the general ledgers section on 2 September 2002 was deposited in the bogus cheque account. On the same day, viz. 7 October 2002, a cheque book containing 50 forms was issued against the bogus cheque account. An officer from Westpac bank, Port Moresby, Mr. Soni Harvies was involved in assisting with the deposit of the K500,000.00 bank cheque into the bogus cheque account.

Withdrawals from the bogus cheque account started on 7 October 2002, which was the same day the K500,000.00 bank cheque was deposited in that account. The two statements made by Mr. Harvies, were tendered by consent (see Exhibits AAD ‘1’ and AAD ‘2’,). The statements show that Mr. Harvies arranged and ensured withdrawals from the bogus cheque account on the same day the K500,000.00 bank cheque was deposited by visiting the Bank of Papua New Guinea twice and obtaining its endorsement. In his second visit to the bank, Mr. Harvies obtained the bank stamp on the cheque to facilitate those withdrawals.

Subsequent withdrawals were made on 9, 10, 11 and 16 October, 2002. The amounts withdrawn from 7 to 16 October 2002, totalled K470,000.00. In each of those withdrawals, Mr. Harvies was the verifying officer.

On 7 October 2002, K50,000.00 in cash was withdrawn. The amount was withdrawn in two separate amounts, one was for K20,000.00 and the other for K30,000.00. On 9 October 2002, K50,000.00 in cash was withdrawn. Then on 10 October 2002, K60,000.00 in cash was withdrawn. On 11 October 2002, K150,000.00 was paid out from the bogus cheque account to accused’s six year old son, Delfred Sakatea Niso’s trust account, at the Bank of South Pacific (BSP), Port Moresby. The transaction was verified by Mr. Harvies. On 16 October 2002, K160,000.00 in cash was withdrawn. The amount was withdrawn in three separate amounts one was for K70,000.00, another for K50,000.00 and the other for K40,000.00.

It is also noted that, on 7 October 2002, K13,000.00 in cash all in notes was deposited by Mr. Harvies into his personal account No. 6398804 with the then Papua New Guinea Banking Corporation (PNGBC), Waigani. Then on 9 October 2002, K50,000.00 also in cash, all in notes was deposited by Mr. Harvies into his same personal account with PNGBC, Waigani.

On 11 October 2002, K10,000.00 was withdrawn by the accused from his son’s trust account. That was the same day, the K150,000.00 cheque was deposited into that account. Also on that same day, the accused arranged for a special clearance of the K150,000.00 cheque from his son’s trust account. He paid K40.00 fee for the special clearance.

On 15 October 2002, the accused again withdrew K20,000.00 from his son’s trust account. Three days later, on 18 October 2002, the accused withdrew another K5,000.00 from the same account. Then on 21 October 2002, the accused paid K16,834.00 to PNG Home Finance Company from the same account to pay off his personal loan with that company.

On 7 October 2002, the same bank cheque No. 022618 for K500,000.00 for Mr Mell resurfaced at the clearing section of the Bank of Papua New Guinea. That was when the fraud was discovered.

The evidence

The accused denied all four charges. His evidence basically was that Mrs. Nelson was the one who handled the cheque first when she checked all the documents that were delivered to the General Ledgers Section from the clearing section on 2 September 2002. He said, he did the balancing after Mrs. Nelson finished checking the documents. He denied seeing the cheque on 2 September 2002. He said, there were five staff working in the General Ledgers Section, two were data operators. He said other staff of the bank also had access to the documents. In other words, any of the other staff including Mrs. Nelson could have got the cheque.

Mrs. Nelson gave evidence and her evidence was that there were only three staff working in the General Ledgers Section, namely, the accused, her and Mr. Oliver Kludapalo. But by the end of August, 2002, Mr. Kludapalo went on study leave, so from then on, only accused and her were working in the General Ledgers Section. There were two other staff, but they were data entry operators and they worked in an office separate from the office the accused and her were working in.

She said that the accused being her supervisor received all the documents first when they were brought in from the clearing section to the General Ledgers Section on the morning of 2 September 2002. That, she said, was the standard practice every time documents were delivered from the clearing section to the General Ledgers Section. She said the documents were then given to her by the accused to cross check, so in the process, the accused would have seen the cheque. She could not remember seeing the cheque. She said, when she first got the documents on 2 September 2002, she did not stamp the documents or cross out the signatures on the documents. She only cross checked the documents against the computer print out and left them on her table to cross out the signatures and to stamp them later. The documents were left on her table for a few days.

The State also called Mr. Robert Kule, who is the Officer In-Charge of the Finance and Accounting Department of the bank. The General Ledgers Section comes under him. He confirmed that the accused was the supervisor in the General Ledgers Section at the material times, and that, he and Mrs. Nelson were the only staff working in that section. He confirmed Mrs Nelson’s evidence that, accused being the supervisor would have received the batch of documents first from the clearing section and therefore he would have seen the cheque.

The accused admitted depositing the K150,000.00 cheque, which was drawn from the bogus cheque account into his son’s trust account. But he said, the cheque was dropped off at his shop at Hohola by an unknown person. He did not know who that person was and who the drawer of the cheque was. He said, the cheque was put in a small white envelope with his name written on it and was given to his shop keeper. The person who dropped the envelope did not tell the shop keeper, who he was, what was in the envelope and who the envelope was from.

The shop keeper was the only other defence witness. He was Mr. Dex Alani. His evidence was that, on 5 October 2002, he was working in accused’s shop at Hohola, and in the afternoon before the accused returned from work, a Papua New Guinean man went to the shop in a red car and asked for the accused. When he told the man that the accused was not yet home from work, the man gave him the envelope and left in the car. When the accused got home from work, he gave the envelope to him. The accused did not say anything or ask Mr. Alani any questions about the envelope.

The accused told the Court that when he saw the cheque, he thought it was for the payment of his house because he previously advertised his house for sale for K250,000.00, for which several parties indicated interest. He said, L.J. Hooker was one and it offered K160,000.00. The first offer was K130,000.00 but he rejected it so the offer was increased to K145,000.00, but he rejected that too, so the offer was increased further to K160,000.00. He was still considering L.J. Hooker’s third offer when he received the cheque.

The other offer was for K180,000.00 from someone from Porgera and the third offer was from someone from Southern Highlands for K200,000.00.

He said, he did not accept any of the offers, but when he received the K150,000.00, cheque, he thought it was from one of those parties. Because he was not sure of who the cheque was from, he held onto the cheque for seven days before depositing it into his son’s trust account.

When the fraud was uncovered, the bank’s Audit Section did the internal investigation. The accused was the prime suspect. He was interviewed on 23 October 2002, by Mr. Alfred Napun who is the bank’s Acting Audit Manager. After the interview, Mr. Napun told the accused to return to the bank the next day to sign the record of interview, but the accused did not return. Some days later when the accused phoned the bank, he was told to go and sign the record of interview, but he never went.

The accused told the Court that he did not return to the bank because he was told by the staff that he was not allowed to enter the bank premises. He said, he told the staff that he was on leave, but he did not tell his immediate superior and he did not know if his leave was approved.

Under cross examination, the accused told the Court that he took urgent leave from 23 October 2002 to 1 December, 2002, because he had a problem in his village. He said that he told the bank auditor Mr. Ron Sika by phone that he was on leave, so he was going to his village to attend to an urgent problem. He agreed that he was told to return to the bank the next day after the interview to sign the record of interview.

Under the questions put to him by the Court, the accused said the urgent problem in the village was a tribal fight which was about to erupt between his tribe and another tribe, so he was told to go home urgently to stop the fight. He said he was stranded in the village so he could not return to the bank to sign the record of interview.

The State also called a handwriting expert, Sgt Mike Imara. He has done numerous courses in forensic science, including courses he did in Queensland and New South Wales in Australia. In his career, he has examined hand writings on all kinds of documents. His qualification as a handwriting expert was not challenged by the defence. I therefore accept that he was qualified to offer opinions on the handwritings he examined on various documents in this case.

The only document he was able to positively identify as the one containing the accused’s hand writing was the K150,000.00 cheque made out in his son’s name. Sgt Imara said the handwritings in that cheque contained characters unique only to the accused. He therefore had no doubt that the cheque was written by the accused. He was not moved on this under cross examination. Sgt Imara also said that he could not be completely sure about the handwritings in other documents.

Submissions

Mr Sapu submitted that the evidence adduced by the State cannot connect the accused to the offences he has been charged with. He submitted that the State could not prove beyond reasonable doubt that the accused committed the offences because the evidence shows that there were other staff who could have got the cheque including Mrs Nelson. It was submitted that the evidence is such that no rational inference can be drawn that the accused was the only person who could have committed the offences.

On the count of conspiracy, Mr Sapu submitted that there could not be conspiracy between the accused and Mr Harvies because the accused had denied ever meeting Mr Harvies. He said there are also gaps in the State’s case in respect of the forgery count because Sgt Imara was not able to say whose hand writings were in the other documents, especially the forms for opening the bogus cheque account with Westpac bank Port Moresby. For the same reason, it was submitted that the State has failed to prove beyond reasonable doubt that the accused was the one who falsely uttered the application form to open the bogus cheque account.

Mr Sapu submitted that from the evidence before the Court, the person who did the transactions at Westpac bank Port Moresby in respect of the Bank of Papua New Guinea cheque No. 22168 could not be the accused. The accused should therefore be acquitted.

Mr Kesno on the other hand submitted that the State had proved its case beyond reasonable doubt in respect of all the charges and therefore the accused should be convicted.

After stating the undisputed facts, Mr Kesno submitted that on the overall view of all the circumstances, the only rational inference that the Court can draw is that the accused was the one who committed the offences.

Mr Kesno emphasized that Sgt Imara positively identified the accused as the one who wrote the cheque for K150,000.00 in favour of his own son. This he said is crucial because it links the accused to the offences he is charged with. This evidence he submitted was not contested by the defence.

Mr Kesno also pointed out parts of the record of interview where he said the accused clearly lied. He then went on to point out areas of accused’s evidence where the accused contradicted himself. He said, the accused’s evidence is not credible, therefore he cannot be believed. The end result is that the accused has told lies to the Court and should be convicted of all charges.

General comments

It is not in dispute that the accused was the supervisor in the General Ledgers Section of the bank and there is overwhelming evidence that the only other staff working with him in the General Ledgers Section at the material times was Mrs. Nelson.

Therefore, on the evidence before me, the accused and Mrs. Nelson were the only two who could have taken the cheque.

In respect of Mrs. Nelson, the evidence that may implicate her comes from the accused. A number of times throughout his evidence, the accused said he received the documents including the cheque after Mrs. Nelson had dealt with them. In other words, Mrs. Nelson could have taken the cheque. There is no other evidence that can implicate Mrs. Nelson.

In respect of the accused, the evidence by Mrs. Nelson and Mr. Gure was that he could have taken the cheque because being the supervisor, he first received the documents, including the cheque on 2 September 2002, from the clearing section. That, they said was the standard practice. Mrs. Nelson also said that the accused was the only one who was in the office when the documents were left on her desk for a few days.

The evidence against the accused being circumstantial, the case must be determined upon the overall view of all the circumstances.

The law

The law relating to circumstantial evidence is well settled in this jurisdiction. His Honour Miles J. succinctly stated the law in The State v Tom Morris [1981] PNGLR 493. There, his Honour adopted the principles enunciated in Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82. At pp. 495 – 496 his Honour said:

"I take the law as to circumstantial evidence in PNG to coincide with what was said in the High Court of Australia in Barca v The Queen:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacok v The King [1911] HCA 66; (1911) 13 CLR 619 at p. 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234 at p. 252; see also Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584 at pp. 605 – 606.However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all facts in evidence’: Peacok v The Queen at p. 661".

The principles were subsequently affirmed by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498. Then, some years later the principles were reaffirmed in Allan Oa Koroka v The State [1988-89] PNGLR 131. These principles have been applied in many subsequent cases both by the National and Supreme Courts. For instance see, The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48 and Garitau Bonu and Rossana Bonu v The State SC528.

Thus the underlying principle on circumstantial evidence is that the accused person is entitled to be acquitted unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. Inherent in this underlying principle is that the drawing of the guilty inference by the Court against the accused must be the only rational inference that the circumstances could enable the Court to draw. The inference drawn as to the guilt of the accused must also make sense and follow logically from all the facts and circumstances. See, Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82. See also, Paulus Pawa v The State (supra); The State v Cosmos Kutau Kitawal & Another (No. 1) – N2266 and The State v Ben Simakot Simbu – N2573.

It is incumbent on the State as the one having the onus of proof to adduce evidence that leads and points to the guilt of the accused. Such evidence must tie up every link to establish the guilt of the accused. See, The State v John Kondi N956.

Applying these principles to the facts of this case, the questions that arise are: Are the circumstances such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused? and - Is the guilt of the accused the only rational inference that the overall circumstances can enable the Court to draw? and - Does the guilt of the accused make sense and follow logically from all the facts and circumstances?

Reasons for decision

The circumstantial evidence against the accused is not just limited to the events of 2 September, 2002, in the General Ledgers Section when the documents, including the cheque were delivered there from the clearing section. In fact much of the evidence relates to the events after 2 September, 2002, both inside and outside the General Ledgers Section.

The crucial evidence against the accused on 2 September, 2002, is that he was at work in the General Ledgers Section and according to Mr. Gure and Mrs. Nelson he would have or had seen the cheque in the normal course of his duties. Furthermore, he was in the office when the bundle of documents, including the cheque, was left by Mrs Nelson later that day on her table for a few days.

In regard to the events outside the General Ledgers Section after 2nd September, 2002, there is the evidence of K150,000.00 being drawn from the bogus cheque account which was subsequently deposited by the accused into his son's trust account. According to Sgt Imara, the handwriting on the K150,000.00 cheque belonged to the accused. The accused has denied any knowledge of the drawer of that cheque.

The evidence by Sgt Imara directly implicates the accused. The accused said that the K150,000.00 cheque was dropped off by an unknown person at his shop in Hohola with his shop keeper in an envelope and was later given to him by the shop keeper. According to the accused, that was how the cheque came into his possession.

Just as it is incumbent upon the State to present evidence that is not only credible but is also logical and makes sense, so it is with the accused. The evidence adduced by him must also make sense and follow logically from the facts and circumstances. Commonsense and logic do play a significant part in circumstantial evidence in deciding whether an accused is guilty of the offence charged. Thus it is necessary to have a closer look at his evidence regarding how he said he received the K150,000.00 cheque from the mystery person through Mr Alani and where he said the cheque was from and how he used the K150,000.00, after the cheque was deposited into his son's trust account and the circumstances surrounding those events to see if his evidence does tie up every link and makes sense and follows logically from the rest of the evidence.

There is no dispute that K150,000.00 was drawn from the bogus cheque account in which the K500,000.00 Bank of Papua New Guinea cheque was deposited. As noted, Mr. Soni Harvies, an employee of Westpac bank, Port Moresby was very involved in the K500,000.00 bank cheque being cleared on the same day it was deposited in the bogus cheque account. Mr. Harvies also facilitated same day withdrawals from the bogus cheque account including the K150,000.00 cheque drawn for accused's son, (see Ex. 'AH'). This is indirectly admitted by Mr. Harvies in one of his statements (see, Ex. AA D '1').

In the statement, Mr. Harvies speaks about serving only one customer. He says in early October, 2002, a male customer went to the Westpac bank, Port Moresby, and opened a cheque account with K100.00. A couple of days later, the same customer brought in the K500,000.00 (in treasury bills) Bank of Papua New Guinea cheque and deposited it in the same cheque account. The customer then asked for same day clearance of the cheque. He confirms taking the cheque to Bank of Papua New Guinea to obtain authorization for same day clearance. He says, the cheque was stamped and verified for clearance by Bank of Papua New Guinea staff. Later, he verified the withdrawals made against the K500,000.00 from the cheque account. He says, after noticing the frequency of withdrawals being made by the same customer in large amounts, he told the customer that the withdrawals should go through the normal process and not necessarily through him. That apparently was because all the withdrawals against K500,000.00 were made before him for verification.

The Exhibit "AA" which is the New Account Form for Westpac bank, shows that on 4 October, 2002, K100.00 was deposited in the new cheque account. Then on 7 October, 2002, the Bank of Papua New Guinea cheque No. 22168 for K500,000.00 was deposited into the same cheque account (see Ex. "AB"). These confirm Mr. Harvies' evidence.

As noted, according to Sgt. Imara, the K150,000.00 cheque drawn from the bogus cheque account for Delfred Sakatea Niso was written by the accused. This means the signature appearing on that cheque was forged by the accused. In this regard, it is noted that the cheque was verified and endorsed by Mr. Harvies. The endorsement on the cheque reads: "cheque and amount confirmed with drawer (Mr. R. Mell) /Soni. 11/10/02", Mr. Harvies then initialled the endorsement. This endorsement was false because as it will be seen later in the judgment, Mr. Mell denied making the withdrawal.

It is further noted that the signature on the K150,000.00 cheque is similar to the other signatures in the other cheques drawn from the bogus cheque account. The similar signature also appears in the Westpac bank application form for the new cheque book, (see Exhibit 'AC'). That signature is meant to be for Mr. Mell because it was the "usual" signature used in the account and the name of the account was "Raymond Mell". In this regard, it is further noted that Mr. Harvies says in his statement that the withdrawals were made by the same person or customer who deposited the K500,000.00 bank cheque.

The Statutory Declaration attached to the application form for the new cheque account purportedly made by Mr. Mell also bears similar signature.

Mr. Mell's statement was tendered by consent and in there, he says he never deposited a K500,000.00 Bank of Papua New Guinea cheque into Westpac bank, Port Moresby cheque account No. 6000680347. He also denies making withdrawals from that account, let alone applying for the account. He says the address given in the application form for that cheque account which was meant by the perpetrator to be his, was wrong. All these confirm that the signatures appearing in all the documents mentioned above including the cheque for K150,000.00 were forged by the same person or customer.

As I said, the evidence which directly implicates the accused to the offences charged comes from Sgt Imara.

The case therefore boils down to whether Sgt Imara or the accused is telling the truth and the truth or otherwise of their evidence is to be determined in the light of all the evidence.

Sgt Imara examined quite a number of documents, following which, he was able to connect the accused to the K150,000.00 cheque. He was cross-examined on that point by Mr. Sapu but was not moved. He was firm that the handwriting on the cheque belonged to the accused. He was also firm that he could not be completely sure about the authors of the handwritings in the other documents. From that, it can be seen that there was no exaggeration in Sgt Imara's evidence. His evidence was not motivated by anything other than the duty on him as an expert witness to give honest account of his findings.

The accused's story on the other hand raises series of unanswered questions. For instance, he told the Court that the cheque for K150,000.00 was delivered by an unknown person to his shop keeper. For that, he said he suspected the cheque to be from one of the parties who offered to buy his house.

From this, following questions arise: -

The accused has up to now never made an attempt to find out who delivered the cheque to his shop, and if he suspected the cheque to be from one of the parties who expressed interest in buying his house, why did he not inquire with those parties to see if anyone of them delivered the cheque? After all, he knew who the parties were and how much they offered. One of those is L.J Hooker, a well known real estate company. He could have gone and inquired at its office, but he did not. His failure to do this cast doubt on the truth of his evidence.

When the envelope containing the K150,000.00 cheque was given to him by his shop keeper, he got it without querying the shop keeper as to who delivered the envelope and what was in it. Why did he remain silent? Is it because he was expecting the cheque?

The accused said he was expecting to sell his house for K250,000.00. But from Exhibit AAB '7', which is a facsimile message to a Mr. Simon Singut from the accused dated the 7 January, 1998, it is noted that the accused told Mr. Singut that the price of his house from the 'recent' evaluation by the Department of Lands was K20,000.00. The accused also told Mr Singut that, negotiations were progressing well to sell the house for K20,000.00, and the contract of sale was also in progress. So, by January, 1998, there were negotiations to sell the house for K20,000.00. How then did the value of the house suddenly soar to K250,000.00? There is no evidence of improvements being made to the house between 1998 and 2002?

According to the statement by Mr. Edsel Kakolo, who is the Senior Loans Officer with the PNG Home Finance Company, the accused got a personal loan for K25,000.00, towards the purchase of his house in 1994. He says, the accused went to PNG Home Finance Company office on 21 October, 2002, and inquired about the remaining balance of his loan. The accused told him that he wanted to pay off his loan from the money he got from his insurance pay out for his car which was stolen from his premises. In the afternoon of the same day, viz. 21st October, 2002, the accused went to PNG Home Finance Company office and paid off the outstanding balance of his loan, which was K16,834.47. In this regard, there is no evidence from the accused that he was paid out by an insurance company for his lost vehicle.

In regard to the value of his house, it is incredible that a reputed real estate company like L. J Hooker could offer K160,000.00 for a house, which was valued at K20,000.00 in 1998. One is left to wonder as to what had happened to the intended sale of the same property for K20,000.00 in 1998. In this regard, it is noted that according to the Lease Rental Deduction Form which is Ex. AA 'B', the house was medium covenant.

Why would a mystery person raise the cheque for accused's son, who according to his birth certificate was only six years old? It does not make sense, after all, the house would presumably be under accused's own name. Furthermore, how did the mystery person know the accused's six year old son's name to raise the cheque in his name?

(vii) What was the point in depositing the cheque in his son's account, when the accused was going to make withdrawals on the same day he deposited the cheque for his personal use?

No such unanswered questions arise from Sgt Imara's evidence. The accused's evidence therefore cannot link up. There are gaps.

From this, the accused's evidence can only be described as wrought with fabrications. It is quite plain from this that he invented the story about the mystery person delivering the envelope containing the K150,000.00 cheque for his son, to his shop.

From the foregoing, I find that the truth is that the accused got the cheque from the General Ledgers Section on or about 2 September 2002, and he on 4 October 2002, opened the bogus cheque account No. 6000680347 at the Westpac bank, Port Moresby under Mr. Mell's name with K100.00. He deposited the bank cheque for K500,000.00 made in favour of Mr Mell into the bogus cheque account on 7 October, 2002. He then arranged with Mr. Harvies for same day clearance of the K500,000.00 cheque from the bogus cheque account and he, with the assistance of Mr. Harvies, made same day withdrawals from the K500,000.00, including the K150,000.00 cheque made in favour of his son. I also have no doubt that he also made the subsequent withdrawals from the bogus cheque account with the assistance of Mr Harvies.

I make these findings on the basis that, according to Mr. Harvies' statement, he was dealing with a man, not a woman. Mr. Harvies says, he verified all the withdrawals made by the same customer. This is consistent with the evidence before the Court. The signatures on all the cheque withdrawals, including the K150,000.00 cheque are similar to the signatures appearing in the application form for the bogus cheque account with the Westpac bank, Port Moresby, which is Exhibit 'Z' and the Statutory Declaration in support of that application which was purportedly made by Mr. Mell. To my mind, all these prove beyond doubt that the accused was the one who made all the bogus transactions. It follows from this that the signatures in all those documents were forged by the accused.

Opportunity

These findings are strengthened by the fact that the accused had the opportunity to see and get the cheque on or about 2 September 2002. At the material times, the accused was the only person who had access to the cheque apart from Mrs. Nelson. In this regard, I accept Mrs. Nelson's evidence that the accused did see the cheque on 2 September 2002, when it was delivered to the General Ledgers Section from the clearing section. This is supported by Mr. Gure. The accused tried to shift the blame to Mrs. Nelson by denying that he ever saw the cheque, but I do not believe him. In this regard, my observations of his demeanour and that of Mrs. Nelson in the witness box become significant. I observed both very closely and Mrs. Nelson struck me as the witness of truth. She gave her evidence with confidence and spoke convincingly of her account of the events. I cannot say the same about the accused. During his evidence, there were long pauses. Most times, he was evasive and did not answer the questions put to him, especially under cross examination. There was a stark contrast between him and Mrs. Nelson. This to my mind was not the true nature of the accused who is a well educated and intelligent person and someone who was once a senior officer in a major bank and who had worked in the banking industry for 22 years. It was clear that he was not honest and truthful in his evidence. The accused had the opportunity to get the cheque and I have no doubt that he did.

Motive

The findings are further strengthened by the fact that the accused also had a motive. In this regard, there is evidence that at the material times, he had an outstanding personal loan of over K16,000.00 from the K25,000.00 housing loan he obtained from PNG Home Finance Company in 1994.

There is evidence that at the material times, he was struggling financially. For instance, in August, 1998, he applied for a personal loan of K700.00 from the Human Resources Department of the bank to travel to Mt Hagen to see his sick daughter. This appears in Exhibit AAB '6', which is the handwritten loan application by the accused for K700.00.

In 2001, he was working overtime, obviously to earn extra money to supplement his fortnightly wages. His overtime work sheets in Exhibits AAB '1' and AAB '4' show that he was even working on Saturdays and Sundays. These to my mind show very plainly that he was financially desperate in 2001.

The accused therefore had the motive to steal the money, when the opportunity presented itself and he did.

The accused's failure to return to the bank on 24 October, 2002, to sign his record of interview was to my mind a conduct indicative of his guilty mind regarding the offences for which he now stands charged. See, The State v Tauvaru Avaka and Michael David Kaipu N2024 and The State v Kwale Dire N2178. He said he left for his village in Enga Province because he received an urgent call to go and stop a tribal fight which was imminent. But I am sure he could have spared at least an hour to go to the bank and sign the record of interview before leaving for his village.

Thus it is plain that the story about an imminent tribal fight in his village was invented. It is also noted that he did not tell Mr. Napun who conducted the record of interview that he had to go to Enga urgently to stop a tribal fight. He also told the Court that he was on leave at that time, but there is no evidence that he had applied for leave or was granted leave. I therefore have no doubt that the story about him going on leave was also invented to try and justify his failure in returning to the bank to sign the record of interview.

In this regard, it is noted from the answer to question 19 in the record of interview conducted between the accused and the police that the accused agreed to receiving the bank cheque No. 22168 for K500,000.00 at the General Ledgers Section from the clearing section. That is a direct admission.

Thus from the overall view and analysis of all the circumstances, the only rational inference I can draw is that the accused is guilty of all four counts. That inference or conclusion flows logically from all the facts and circumstances and it makes sense.

Mr. Soni Harvies' involvement.

It is necessary that I make observations on the role played by Mr Harvies as that is relevant to the first and fourth counts which relate to conspiracy and misappropriation. I have found upon Mr. Harvies' own evidence that he received the bank cheque No. 22168 for K500,000.00 from the accused on 7 October, 2002, at the Westpac bank, Port Moresby. He also assisted the accused to deposit the cheque in the bogus cheque account on that same day. Mr. Harvies further assisted the accused by having the cheque cleared on the same day and later verified a couple of large withdrawals from that bogus cheque account on the same day. Mr. Harvies also verified all the subsequent withdrawals.

There is further evidence that on the same day, viz. 7 October, 2002, Mr. Harvies deposited K13,000.00 into his own savings account with PNGBC, Waigani and two days later, on 9 October, 2002, Mr. Harvies deposited another K50,000.00 into his same savings account. These plainly indicate that Mr. Harvies benefited from the K500,000.00 bank cheque and that he actively participated in the offences charged.

On 7 October, 2002, the accused made two withdrawals, one was for K20,000.00 and the other was for K30,000.00. So on 7 October, 2002, he withdrew total amount of K50,000.00 in cash. On 9 October, 2002, the accused withdrew K50,000.00 in cash. Thus the total withdrawals in those two days amounted to K100,000.00. All the withdrawals were verified by Mr. Harvies and the evidence shows that the accused was not paid over the counter. He was paid by Mr. Harvies in an enclosed interview room. I have no doubt that that is where Mr. Harvies was given his share of the money withdrawn by the accused on those two days which he later banked in his account.

In this regard, I also find that Mr. Harvies' sudden resignation from his employment with Westpac bank on 13 November, 2002, very suspicious. This is evident from Exhibit 'AAD '3', which is Mr. Harvies' letter of resignation to the Manager, Operational Risk Investigations, Westpac bank, dated 13 November, 2002. In that letter, Mr. Harvies advised that his resignation was effective on the same day, viz. 13 November, 2002, because he had been referred to the police and the police were investigating him. He told the Westpac bank Manager Operations, to advise the Human Resources Manager of his resignation. This plainly shows that Mr. Harvies' resignation was not only sudden but that it was done in desperation to leave the bank immediately. He was not interested in advising the Human Resources Manager of his resignation and was not concerned about his finish pay which is a normal thing for anyone resigning from his employment. To my mind, these quite plainly indicate Mr. Harvies' guilty mind at that time regarding the offences now faced by the accused.

I also find Mr. Harvies' conduct fitting of a person who had guilty conscience regarding the matters he was being investigated on by the police.

Conclusion

In the circumstances, there is no doubt in my mind that there was conspiracy between the accused, Mr. Harvies and other unknown persons to defraud the Bank of Papua New Guinea of K500,000.00, between 30 August, and 4 October, 2002.

I am therefore satisfied beyond reasonable doubt that the accused is guilty of the first count.

In regard to the second and third counts, I have already found that the Westpac bank cheque account application form was forged on 4 October, 2002, by the accused. The application form was therefore false which the accused knowingly and fraudulently uttered on 4 October, 2002, to open the bogus cheque account No. 6000680347 with Westpac bank, Port Moresby, in which the K500,000.00 bank cheque was deposited.

I am therefore also satisfied beyond reasonable doubt that the accused is guilty of the second and third counts.

In regard to the fourth count, I have found that between 7 and 21 October, 2002, the accused dishonestly applied to his own use the sum of K500,000.00, the property of the Bank of Papua New Guinea. I have also found that total of K63,000.00 deposited in cash on 7 and 9 October, 2002, by Mr. Harvies into his own savings account No. 6398804 with PNGBC, Waigani, was part of the money withdrawn on those two days from the K500,000.00, bank cheque deposited in the bogus cheque account. Therefore the accused applied K63,000.00 of the K500,000.00, to the use of Mr. Harvies on 7 and 9 October, 2002.

It follows that I am also satisfied beyond reasonable doubt that the accused is also guilty of the fourth count.

Accused is therefore guilty of all four counts.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Yapao Lawyers.