National Court of Papua New Guinea

As a result of this, OTML paid to the Plaintiff a sum of money over and above the actual fuel supplied. In the procespaid K75,000 ,000 to the Plhe Plaintiff. After the alterations were discovered, it was brought to the attention of the Plaintifd the Plaintiff has now entered arrangements with OTML, for the Plaintiff to reimburse the the money to OTML.

I observed his nor carefully. He wase was const in his this testimony and although there were minor discrepancies, these did not affect his testimony at all. He was an indept witness.&ess. I accept his teny as truthtruthful.

The next witness for the plaintiff was one Keith Geoffrey Reick. Hehe Branch Manager of thef the plaintiff branch operation at Wewak. He was previously yed by the plaintiff at itst its Tabubil branch as its branch manager. Heso employed from March 1rch 1992 to the end of June 1992.&#His evidence was that the defendant was employed by the plaintiff as a service station atte attendant. He said that the defendauties included serving cust customers, receipting money in the cash register & compiling or entering daily fuel sales forms.&#160re were three forms, which was required to be done, one was for fuel sold to OTML, the othe other for other credit customers and third one was cash sales to customers. He took became aware ofalte alterations in the daily fuel forms credit to OTML, when the internal auditors of OTML came in & informed him.

At the relevant time, ie for November 1991 to March 1994, he saidople were employed as fuel fuel attendants. These were the defe and annd another person called Russell. These two were the fuep atmp attendants and either of these two would serve the customers and enter the entries in the daily fuel supply form. Intion ese, there were aere according to this witness two other employers who were admin. staff anff and but there were no accounts person or clerks. He further statet from them the daily fuel supply form for OTML, daily cash & daily credit sales to open customers would be compiled into a one document called the daily SSummary form.&#rm. In regard todaily credit sdit sales to OTML vehicles, the original of that document would be sent direct to OTML and Copies of it would be sent to the plaintiff’dquarin Port Moresby tsby together with daily Sale Summary form.form. The statements & invoice etc. would then be raised by Port Moresby.

He said that the daily Sales Summary form would be compiled by the Defendant, the next day from the previous datries in the daily fuel issue forms. Once the daily sily summary form is completed it was then brought to him for cross checking. After that the original of this particular form was send to the plaintiff’s, Port Moresby office.

He went d said that after the discrdiscrepancies were discovered and made known to him, he initially asked the defendant if they were his hand writing and the defendant denied that it was his handwriting.

He also gave evidence regarding the system that was used by the Plaintiffs employee to record fuel and other sales. In s as cash sales were core concerned, he said that the two fuel pump attendants were given waist pouches to hold cash so that they could attend to several customers at any one time. After ving ash, the fuel auel attl attendants, were required to enter cash into the cash register and deposit cash into it. In the cagiste a cash regi register roll on which the cash that was deposited would be recorded.&#16. At the f the days transactnsactione actual cash that had been deposited in the cash register together with the cash register ster roll, would be collected by the adminff, and either reconciled or put away for reconciling next next day for banking.

The last witness for the Plaintiff was Wendy Nuka. During the relevant d she she was employed by the Plaintiff as an accounts clerk and she was so employed for two and a half years. She said her reibilities wies were to enter entries in the books of accounts detailing the cash received from the service station, reconcile the actual cash with the cash register roll, and prepare and do banking. She said that she regarde the Defendant as a friend.

The Defendant called several witnesses. The first three wi generalnerally gave evidengarding the character of the Defendant. In general they all have high regard for the the defendant and they all hold the view the defendant was incapable of perpetrating, the allegationations against him. They said they truste and and regarded him as ahful and an honest man and and that he was not capable of committing the alleged fraud.

The defendant gave evidence admitted he and another person were responsible for entering the orie original entries in the daily fuel supply form (DFSF). He said thaer that docket cket was filled in it was handed over to the other staff in the office. He said once the daily fuey fuel suform was handed over to the office staff he had nothing to do with it. He said he did not cnot compile the daily summary form (DSF) aat that particular form was compiled by other staff in the the office. However, he denied strely usly that he made any of the alterations that appear in the DFSF during the relevant period, or that he stole cash moneys from the till or any other possessiring the relevant period. He exed how he startedartedarted off his small businesses with a second-hand motor vehicle, and eventually together with contributions from his fellow villagers, managed to buy other vehicles and assets.

On the basis of the evidence before me I make the following findings of facts:

1. & A60;he tlevaet time the the plaintiff employed two persons, namely the Defendant and one Russell as fuel service station attendants at Tabubil.

2.ټ&##160;;&#16e Deft and Russell wouldwould also also rece receive cive cash fash from cash paying customers. The t would then be puncheunched or keyed in into the cash register and the cash deposited into it. By this method the amount of cash once keyed would be regid in the streamer which was inside the cash register.

3. At the end of the day, the a cash together with streamer would be removed from the cash cash register by the administration Staff and stored away. The ne could untedrecon wion withamounts ants appearppearing iing in then the stre streamersamers so as to balance the actual cash with the amount appearing therein.

4. Ttese eno mre were responssponsible for making of entries in the daily fuel supply forms (DFSF).

5. ټ&##160; T60; The Plae Plaintiff also during the relevant period employed several other people in the office doing various job>

60; Once the daill fueplsuporm forms were completedleted, it , it was delivered or taken into the office, where the information from that particular form and the information from other documents were transferred to and entered into another document, known as the daily summary form (DSM).

7. ټ&#T60; that the DFSF DFSF was handled by many other people. It was not handled by the the Defendant.

8. ټ That during the rele relevant period, coion fwas un one or morr more of e of the entries in each days (DFSF) to wipe out the original hand writtenitten entry, and subsequently the entries ted wltere new entriestries were were ente entered thereon.

The evidence shows that the Defendant was not the only person who made the original entries in the DFSF nor the cash, for there was another fuel attendant who also made or entered the entries in that form and handled the cash during the relevant period in question. Mver there is also evidencidence that these particular documents and the cash was and did pass through the hands, not only of the Defendant & his co-workers, but some of the other employeeshe Plaintiff. The defe defendan denied tied that he made any of the alterations in the entries in the daily fuel sales form. H also denied fraudulentlyently removing cash form the cash register or from any other thing. I had the opportunity ofng ofng examining the alterations that had been made in all those documents (i.e daily fuel supp supply form) for the period claimed in tht, and in every single one of them, it appears that the alte alterations were made in either different pen and a different hand writing from the original hand writing & original ink.

There is therefore, a dispute as to handwriting which appears in the alterations that were made on the original entries in the daily fuel supply form during the relevant period. I have alreoted the evidenvidence of Mr Reick in relation to this issue with regard to the defendant. The dant has denied that ihat i he who made those alteration.

Although both counsel have not addressed this issue, sue, I consider it an important issue in tght of allegations against the defendant and the evidence tnce that has been given.

And so what is the answer, in cases where there is a dispute as to the hand writing. It would have belpful had had either of the parties called expert evidence who would have given evidence and to assist the Court. But that wa done, and so t so the Court does not have the benefit of aert evidence.

The rehe relevant statutory provision so far as it relates to comparison of disputed handwriting is Section 31 o Evidence Act, Ch 48. #160; It r

“3120;31. &#Compa of dispudisputed haed hand-writing

A comparison of a disputed hand-writing proved, to the satisfaction of the court, to be genuine may be made by witnesses, and the hand-writing ae tesy of the witnessenesses ress respecting them may be submitted to the Court as evidence of the geniuses or otherwise of the handwriting in dispute.”

My short research reveals that there are two reported cases in Papua New Guinea which considered and dealt with this particular point. Both of them are criminttematters but I am of the view that the principles set out therein are quite relevant and applicable in civil matters, such as the present case, where there is a dispute as to the handwriting>

The first case is the the pre Independence case of R v Hobart Magalu [1974] PNGLR 188. In case Frost, A-CJ, as heas he then was, considered s. 66 of the Evidence & Discovery (Papua) Act 1913-1964, which was the predecessor of S. 31 of the Evident Ch 48. His honor held that thvisiovision of S. 66 o 66 of that Act, did not prevent the Court from reaching its own conclusions as to the genuineness or otherwise of hand writing in dispute by reason of the absence of any expert witness called to make comparison of the handwritings. er, his Honor, did remind mind himself that a judge sitting alone should warn himself of the dangers of reaching a conclusion upon a comparison of the handwriting without the assistance of expert evidence.

In State v Baine [1990] PNGLR 1, Brunton AJ, as he then was, had this to say (at p. 3):

“The law is that although expert evidence is not essential for a tribunal of fact to come to a conclusion about comparative handwritings, there is danger involved when a tribunal of fact proceeds without expert testimony (see Oi Sullivan v the Queen (1969) 53 Cr App. R 274 at 284, per Winn LJ)... In the course of his judgment Winn LJ said (at 282):

‘The fact remains that there is a very real danger where the jury make such comparisons, but as a matter of practical reality all that can be done is to ask then not to make the comparisons themselves and to have vividly in mind the fact they are not qualified to make comparisons. It is terribly risky for jurors to attempt comparisons of writing unless they have very special training in this particular Science...’”

I adopt and apply the principles of law set out in the above cases as both relevant and appr appropriate to the circumstances of this country. I am not a handwr expert.&ert. The Court can onle comparimparison, and should not come to any conclusion without any expert testimony about comparative handwriting. I am mindfat it is dangerous tous to do so and to come to any concluss to who made those alteratterations in the DFSF during the relevant period.

I have examined and compared closely the alteratihat were made on each and eand every daily fuel supply form during the relevant period in issue. I am convinced upon comparison of the hand writings that appen those documents that that some one did in fact made those alterations in the entries.&#16t that is as far as I am able to go. Without any expert testimony I am unable to make make any positive conclusion as to who made those alterations.

I am not able to make any finding, nor am I able to draw any inference on the basis of the evidence, as ands, that those alterationations were in fact made by the Defendant. Put it, another way, I amsnot satisfied, on the balance of probabilities that it was the Defendant who made those alternations in the entries in the daily fuel supply forms during the rnt period.

There is another reason why I consider ther that the Defendant is not liable. The reason is this. There wereral keys on the the cash register to key in particular type of sales. For instances if a custoasr was served fuel anpaid for it, the appropriate key would be keyed in and the amount of sales entered in d in the cthe cash register and the streamer or rollaper inside the cash register.

This streamer was rems removed together with the actual cash either during the day or at the end of the day, for counting, reconciling and banking. The cnd the streamer was rwas removed by the office staff; and it was counted by the office staff, reconciled by them with the actual cash and the amount appearing in the streamer. It was cheby thice staff, aff, cross ross checked by Mr Reick and then banked.

But there is absolutely no evidence at all that during thevant period in issue, of whether there was any discrepancies in between the actual cash ansh and the amounts appearing in the streamers or roll.

I have carefully considered all of the evidence adduced before me. I hlso read and considereddered carefully the written submissions that have been put to me by both parties.

Mr Doko, in essence submits that looking at the mstances of the employment of the Defendant, the duties he s he performed, the amount of assets he has, the wage he earns, I shdraw an inference that that monies the Defendant has in his accounts, the assets he has, cannot or could not have come from else, but from funds he fraudulently obtained from and during the course of his employment with with the Plaintiff.

I do not accept this submission, simply because the evidence is such that I cannot make that inference and make a conclusion to that effect.

There is absolutely no scintilla of evidence from any of the Plaintiff’s witnesses, that they had witnessed him removing any money from either the cash register or from any other sources. The allegations ag the defe defendant was that he would either get the cash from the cash register, the cash having been already paid by each customers - and he would then make tterations in the DFSF for OTML vehicles, so as to cover ther the discrepancy if any in the cash register from the cash that had been stolen.

Mr Lora submits that there is absolutely no evidence to show any discrepancies between the actual cash and the amount of cash printed in the streamers or roll of papers which were in the cash register at the relevant time. He says thatPlaintiff ough ought to have produced the cash register printouts for the relevant dates to indicate the amount of money missing dates those amounts relate to and any evidence of such discrepancy between the actual cash cash and the cash register printout.

For instance, there is evidence from Mr Dom that on 30 April 1992, that on OTML motor vehicle no. L 462 the correct liteage of fuel supplied and recorded was 30.20 litres, but was deceitfully altered to 40.40 litres. A similar scheme was employed on motor vehicle L 591. The witsaid the correct lict litage was 34.34 litres but was altered to read 54.54 litres. Tystem was stently used dued during the relevant period in issue.

But Mr Lora submitsbmits that there is no evidence of cash being tout of the till on any of these days, which could have been done to balance the deficiency.ency.

I accept this submission as correct. There is absolutelevidencedence of any cash discrepancy occurring during any of the dates in the period in issue, nor is there any evidence of such cash discrepancy connecting to the alterations that were made in the OTML daily fuel supply forms. There simply is no nexus between those. There is no evideonnectingcting the deceitful alterations in DFSF to any loss of cash money during the material period. Put it in another, therebss absolutely no evidence of any loss of any cash occurrining the material period.&#1d. There evidence connectingcting such loss, of which there is none to the deceitful tampering of tSF.

In these circumsrcumstances, I am mystified as to how the defendant was able to remove the money from the cash register, then subsequently make alterations in the DFSF. This is compound the fact fact that the cash register was located inside the office building and the cash was collected at the end of the day locked away in the safe for the night, retrieved the following mor counted, reconciled, checkchecked and cross-checked and then banked.

Further more we have evidence which shows that cash receipts balanced on nearly all occasion during the period. Puanother, there is absolubsolutely no evidence at all that there were any discrepancies showing in the cash register receipt, at the end of the day or the next day when the actual cash was counalanced and reconciled with with or against the cash receipt in the cash register in preparation for banking.

In those circumstances, I am quite amazed to say the least, of the plaintiff hoping to succeed, on what quite clearly appears to be no evidence at all to prove its allegations.

Serious allegations have been made against the Defendant on purely speculative basis. I say purely speculative, because Mr Reich says that he was suspicious, because of the amount assets the Defendant had. Butave evidence as to how how those assets were acquired. Those a were not bought soht solely by the defendant, but it was b from contributions from his fellow villagers and others. That evideas not been been been destroyed in any manner or form.

I order that the Plaintiff pay the Defendant’s costs, such costs to be agreed, and if not to be taxed by the taxing officer.

Lawyer for the Plaintiff: Carter Newell Lawyers

Lawyer for the Defendant: A D Lora Lawyers