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State v Ramoi [1993] PGNC 96; [1993] PNGLR 390; N1140 (15 February 1993)

N1140

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

STATE

V

GABRIEL RAMOI

Waigani
Salika J

15 February 1993

CRIMINAL LAW - Misappropriation - Dishonestly means "intended to cheat, deceive or mislead" - Cheque applied for other purposes than that intended.

EVIDENCE - Consequences of failure of accused to give evidence.

WORDS AND PHRASES - "Dishonest" - Criminal Code s 383A.

Facts

The accused, a member of Parliament, obtained K15,000 from the National Development Fund, purportedly for completion of a cocoa fermentary in his electorate. A cheque was issued in favour of "Siau Cocoa Pty Ltd, Aitape, West Sepik Province". However, the cheque was presented by the accused to an airline company to pay for transport of two bands to Wewak to promote the accused and his political party.

The accused was charged with dishonestly applying property to his own use, contrary to s 383A of the Criminal Code. The accused did not give evidence. He said the prosecution had not proved he had acted dishonestly.

Held

1. The word "dishonestly" means "intended to cheat, deceive or mislead".

2. Applying the test in Lawi v The State [1987] PNGLR 183 of the "ordinary standards of reasonable and honest people" to the facts as established in order to determine the state of mind of the accused, there was evidence the accused had acted dishonestly.

3. Failure of the accused to give evidence was not an admission of guilt. It meant, however, that there was no evidence of the accused's reasons for applying the cheque as he did. The court was, therefore, free to draw inferences from the unchallenged evidence led by the State.

Cases Cited

Lawi v The State [1987] PNGLR 183.
Pawa v The State [1981] PNGLR 498.
State v Baine [1990] PNGLR 1.

Counsel

V Noka, for the State.
G Sheppard, for the accused.

15 February 1993

SALIKA J: The accused stands charged that between 21 May 1986 and 14 August 1986 at Port Moresby he dishonestly applied to his own use K15,000 the property of the State. The State alleged that in 1986, while Mr Ramoi was a member of Parliament, he made National Development Fund application for K15,000 in order to complete a cocoa fermentary at his electorate in Aitape. A letter of request dated 7 April 1986 was purported to have been written to Mr Ramoi by Mr James Makain, who is shown on records as the Chairman of the Board of Directors of Siau Cocoa Pty Ltd. The State alleges that Mr Ramoi, after receipt of the letter allegedly from Mr James Makain, completed the National Development Fund form on behalf of Siau Cocoa Pty Ltd. Coincidently, the form was signed by Mr Ramoi on 6 April 1986, a date before Mr Makain is purported to have written his letter to Mr Ramoi.

As a result of the National Development Fund application by Mr Ramoi, a Bank of Papua New Guinea cheque, number 2A-068526, was raised in favour of "Siau Cocoa Pty Ltd, Aitape, West Sepik Province" for the amount of K15,000.

The State alleged that Mr Ramoi was then given the cheque and that, thereafter, he used the money for his own benefit, in that he presented the cheque to Talair for payment of travel for two Port Moresby-based bands to Wewak and return. The two Port Moresby-based bands were the Bluff Inn Souls and the Gwadus. They were transported on chartered Talair aircraft to Wewak. The purpose for which the two bands were airlifted to Wewak was to promote the People's Democratic Movement party and Mr Ramoi.

The basic facts are not in dispute, and I note those not in dispute. Most of the evidence is documentary evidence.

It is not disputed that Mr Ramoi signed a National Development Fund application on 6 April 1986. The application was for the Siau Cocoa Pty Ltd project for the completion of a cocoa processing plant, and the request was for K15,000. This evidence is documented.

It is also not disputed that Mr Ramoi received a Bank of Papua New Guinea cheque, number 2A-068526, which was in favour of Siau Cocoa Pty Ltd. The cheque is exhibit "M" in these proceedings.

It is further not disputed that Mr Ramoi used that cheque (2A-068526) to pay Talair for transporting the members of the Bluff Inn Souls and Gwadus bands, to promote him and his People's Democratic Movement party. This evidence is documented from Domingo Balangat and Aloysius Mato.

The defence's only contention was that there was no dishonesty on the part of Mr Ramoi when he presented cheque number 2A-068526 for payment to Talair.

The State has the burden of establishing beyond reasonable doubt the accused's guilt. It has to prove that the accused:

1. dishonestly;

2. applied to his own use or use of another;

3. property belonging to another.

In his submissions to this Court, Mr Sheppard, counsel for Mr Ramoi, conceded that the State had sufficient evidence in relation to elements (2) and (3), but not (1). Once Mr Sheppard conceded that Mr Ramoi did apply to his own use, or use of another, property belonging to another person, he is bound by that concession. I say this at the outset, because it becomes important at a later part of his submissions.

The only issue to be determined by this court, then, is whether or not Mr Ramoi dishonestly applied the moneys. The word "dishonestly" has been defined by the Supreme Court in the case of Lawi v The State [1987] PNGLR 183 (hereafter Lawi's case). In the case of State v Baine [1990] PNGLR 1, Brunton AJ, as he then was, applied the same test expounded in Lawi's case in defining the word "dishonestly".

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

"Dishonesty" comes from the word "dishonest". "Dishonest" is defined in the Oxford Advanced Learners Dictionary of Current English as "intended to cheat, deceive or mislead".

The question that needs to be asked is: did Mr Ramoi intend to cheat, deceive or mislead anyone when he paid Talair the cheque number 2A-068526? Before that question is answered, we know the fact that the cheque was made in favour of Siau Cocoa Pty Ltd, a separate legal entity. We also know that the cheque was issued to Siau Cocoa Pty Ltd for the completion of its cocoa processing plant at Aitape. It is an established and conceded fact that the cheque was, instead, used to pay Talair for conveyance of the Bluff Inn Souls and the Gwadu bands from Port Moresby to Wewak return to promote Mr Ramoi and his party. Mr Ramoi was then a member of Parliament for the Aitape-Lumi Open Electorate. Under that given set of facts or circumstances, applying the "ordinary standards of reasonable and honest people" test, I am satisfied beyond reasonable doubt that Mr Ramoi dishonestly applied the monies, because there is no evidence that he was authorised to deal with a "not negotiable" cheque made out to Siau Cocoa in the manner he did. Makain, Samuel and Aloitch had no knowledge of the cheque for K15,000 for Siau Cocoa. They are directors of Siau Cocoa and could not have authorised something they had no knowledge of.

As to the question of whether or not Mr Ramoi realised at the time what he was doing was dishonest, using the "ordinary standards of reasonable and honest people" test, I am satisfied beyond reasonable doubt that Mr Ramoi must have realised that what he was doing was dishonest. He was a member of Parliament for the Aitape-Lumi Open Electorate. Records in "Exhibit H" also show that Mr Ramoi was then Minister for Communication.

Mr Ramoi, therefore, is no ordinary person. He must and ought to have realised that applying cheque 2A-068526, which was in favour of Siau Cocoa Pty Ltd, to pay Talair to convey two band groups to Wewak from Port Moresby return was dishonest. The cheque in question was a "not negotiable" cheque, and how Talair got to accept that cheque in payment for services rendered to Mr Ramoi is beyond me to say. I consider that, according to the ordinary standards of reasonable and honest people of Aitape-Lumi, the people of West Sepik, the members of National Parliament, and Papua New Guinea generally, what Mr Ramoi did was dishonest. This is because he must have known or ought to have known that the cheque for K15,000 was for Siau Cocoa to complete its fermentary. Instead, he used the cheque to pay Talair. With the unchallenged evidence of Makain, Aloitch, and Samuel that they had no knowledge of the NDF application and the cheque for K15,000, and with no explanation from the accused, I am left to accept their evidence. If Makain did not write the NDF application, then someone else must have. We know Mr Ramoi signed or endorsed the application. The NDF application speaks for itself. It is in evidence. Could Mr Ramoi have written the application himself? That is a possibility. Was that cheque for K15,000, in fact, ever going to get to Siau Cocoa Pty Ltd? I doubt it, because no one else seems to have knowledge of the application and the cheque for K15,000. Because no one else knew of the K15,000, I hold that Mr Ramoi felt he could use it to pay Talair as he did. But that is dishonest because the cheque is for Siau Cocoa and not him. It was his electoral duty to pass on the cheque to the beneficiaries.

Mr Sheppard made submissions that Mr Ramoi may have been authorised to deal with the said cheque in the manner he did. If he was so authorised, it was a matter Mr Ramoi could have told this court. It would have been evidence in his favour. He chose not to lead the evidence, either by himself or through other witnesses. He, therefore, cannot say he may have been authorised to deal with the cheque in the manner he did.

Mr Sheppard also submitted that since Mr Ramoi was a major shareholder of Siau Cocoa Pty Ltd and a director, he was authorised to deal with the cheque in the manner he did. While Mr Ramoi may have been a director and major shareholder of the company, he is not "Siau Cocoa Pty Ltd" or the company.

Mr Sheppard seems to have placed a lot of significance on the statements of State witness Mr Micah Vele. Mr Vele's evidence is that his statement, which bears his signature and which is part of the District Court committal depositions tendered into evidence on cross examination by Mr Sheppard, was made out by his department and, because he was in charge of the section, he only signed it.

In his statement, Mr Vele had the cheque number of 7979 for K15,000.

While there is a discrepancy about the correct number of the cheque, the only cheque that has been produced in evidence relating to this matter is cheque number 2A-068526.

It is quite clear that the cheque in question is numbered 2A-068526, made in favour of Siau Cocoa Pty Ltd . The cheque has "Pay Talair" at the back of it with the name and signature of Mr Ramoi. I have no doubt that the cheque number 2A-068526 is the cheque which this court case is all about.

At this stage, I point out that Mr Ramoi exercised his right not to give evidence. The fact that he did not give evidence is not an admission of guilt, and no inference of guilt may be drawn from his failure to give evidence. However failure to testify may tell against an accused in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters.

I refer to the authority of Pawa v The State [1981] PNGLR 498 on the above matters. I say this because, if Mr Ramoi had reasons for applying the subject cheque in the manner he did or believed that he was authorised to deal with the cheque in that manner, then he should have said so. He has elected to remain silent. I am left to accept the uncontradicted evidence of the State, and, where necessary, draw inferences and findings from that unchallenged evidence.

Applying the relevant tests in the Lawi and the Baine cases, I am satisfied beyond doubt of the guilt of Mr Ramoi, that he dishonestly applied K15,000, the property of the State, to his own use.

___________________

Lawyers for the State: Public Prosecutor.
Lawyers for the accused: Kemaken Lawyers.