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State v Simon [2020] PGNC 18; N8183 (7 February 2020)

N8183

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 104 of 2019

THE STATE

V

FELIX LUKE SIMON

Waigani: Berrigan J
2019: 18^th, 19^th, 20^th, 23^rd and 24^th September, 10^th October
2020: 7^th February

CRIMINAL LAW–PRACTICE AND PROCEDURE - Self-represented accused – S. 383A of the Criminal Code - Misappropriation –Elements of offence – Ss. 1, 530(6) and (7) of the Criminal Code – Averment of “money” includes cheques - Claim of right –Belief in legal and not merely moral entitlement required- Unsworn statement – Consideration and weight.

Cases Cited:
Papua New Guinea Cases Cited

Brian Kindi Lawi v The State [1987] PNGLR 183
Francis Potape v The State (2015) SC1613
Havila Kavo v The State (2015) SC1450
Ikalom & Anor v The State (2019) SC1888
James Singo v The State (2002) SC700
Jimmy Ono v The State (2002) SC698
John Jaminan v The State (No 2) [1983] PNGLR 318
Magr v The Queen [1969-70] PNGLR 165
Maladina v The State (2016) SC1495
Paulus Pawa v. The State [1981] PNGLR 498
R v Hobart Magalu [1974] PNGLR 188
R v Ulel [1973] PNGLR 254
Sebulon Wat v Peter Kari [1975] PNGLR 325
State v Roka Pep [1983] PNGLR 287
Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231
The State v Andrew Ludwig Posai (2004) N2618
The State v Bruno Tanfa Chilong (2009) N3578
The State v Douba (2018) N7627
The State v Emma Ombu Karakabo (2012) N4897
The State v Francis Natuwohala Laumadava [1994] PNGLR 291
The State v Francis Potape (2014) N5773
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Graham Yotchi Wyborn (2005) N2847
The State v Henry Gorea [1996] PNGLR 141
The State v Paul Kundi Rape [1976] PNGLR 96
The State v Titeva Fineko [1978] PNGLR 262
The State v Topoma [1980] PNGLR 18
The State v. Tom Morris [1981] PNGLR 493

Overseas Cases Cited:

Barca v. The Queen [1975] HCA 42; (1975) 50 ALJR 108
Harris v Harrison (1963) Crim LR 497
MacLeod v R [2003] HCA 24; (2003) 214 CLR 230
MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512
Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619
Plomp v. The Queen (1963) CLR 234
R v Bernhard [1938] 2 KB 264
R v Dossi (1918) 13 Cr App R 158
R v Easton [1993] QCA 255; [1994] 1 Qd R 531
R v Pollard [1962] QWN 13
Thomas v. The Queen [1960] HCA 2; (1960) 102 CLR 584
WGC v R [2007] HCA 58; (2007) 233 CLR 66

Legislation and other materials cited:

Sections23,383A, 534,527and530of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms T. Aihi and Mr B. Sabarei, for the State
Accused in person

DECISION ON VERDICT

07^thFebruary, 2020

1. BY THE COURT: The State presented an indictment charging the accused that he:
   

“between the 6^th day of July 2017 and the 3^rd day of January 2018 dishonestly applied to his own use and the use of others monies in the sum of K62,600, belonging to Joshua Ipi and subject to a trust and direction of Joshua Ipi”, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code (Ch. 262) (the Criminal Code)

2. The State alleged that the accused was a Port Moresby based employee of 210 Real Estate, which was owned by the complainant, Joshua Ipi. The complainant is based in Lae, Morobe Province and owns rental property located at Turua Avenue and Lokua Avenue in Port Moresby. The accused was the caretaker of the property located at Lokua Avenue occupied by corporate tenants, including Lamana Hotel Ltd, Department of Health and Mirupasi Lawyers. The complainant directed the accused to collect rentals paid by cheque from tenants and deposit the cheques into the complainant’s personal bank account.
   
3. The State further alleged that the accused without the knowledge and authority of the complainant opened a Bank South Pacific (BSP) account, No. 7010657588 in the name of Joshua Ipi, into which he, the accused deposited K62,600 in rentals paid by cheque, and made subsequent cash withdrawals.
   
4. The accused chose to represent himself. He was reminded of his option to secure private counsel or have the Public Solicitor represent him on each occasion the matter was mentioned, and again at commencement of the trial.
   
5. A self-represented defendant must be given sufficient information to enable them to have a fair trial: MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512. At the beginning of the trial the elements of the offence were explained to the accused, together with the trial process, including the role of the judge, the burden of proof, the role of the State, the use of exhibits, the accused’s right to object to evidence or proposed exhibits, his right to cross-examine and the need to put his case to witnesses if he intended to contradict them later. He was informed of his right to make a no-case submission at the end of the State case if he chose to do so. He was also informed of the options available in the event I found a case to answer at the close of the State case. He was made aware of and confirmed that he understood that I would repeat anything for which he required clarification and whilst I could not provide advice, if he required clarification of any matter during the trial, he should make me aware. I reminded him of certain matters as the trial progressed and confirmed on an ongoing basis that he understood what was happening.
   

STATE CASE

6. The State called seven witnesses and tendered a number of exhibits through those witnesses.
   
7. Asher Wafi, in-house lawyer with BSP, in response to an order and search warrant issued by the District Court on 10 May 2018 (Exhibit A and B, respectively) produced bank statements for BSP Account No. 701657588 in the name of “Joshua Ipi” for the period 8 June 2017 to 28 February 2018 (Exhibit D1- D6) and a Customer Record Card in the name of Joshua Ipi (Exhibit C) for the said account.
   
8. The complainant, Joshua Ipi, is a property owner and developer. He did not recognise the person whose picture appears as the account holder in Exhibit C for the above BSP Account No. 701657588 in the name of “Joshua Ipi”.
   
9. The complainant operates real estate businesses in Port Moresby and Lae. Properties in Port Moresby include units at Turua Avenue and units at Lokua Avenue in East Boroko, which he rents out. According to Exhibit E, he holds the title to the property at Section 41, Allotment 72, Turua Avenue in his own name. After paying off the mortgage, title was transferred to him in 2008: Discharge of Mortgage, Exhibit F. The complainant purchased Lokua Avenue from his savings in 2008/9.
   
10. The complainant met the accused in the village. They go to the same church. Ipi is from Wabag and the accused is from Kompiam. The accused was one of the boys who grew up in the village.
    
11. At the request of his tambu, Ipi employed the accused on a casual basis as a caretaker for his properties, based in Port Moresby. His duties were to manage the generator and maintain fuel. He provided the accused with housing and paid him K350 per fortnight. At the time of the alleged offences the accused had been in his employ for about three years. He fired him for unrelated reasons. He realised later that the accused had failed to deposit some rental cheques to his bank account and reported the matter to police. He did not realise at first because the accused was depositing some cheques but not others.
    
12. Tenants at Turua and Lokua Avenues paid rental monthly. There were five tenants including the Department of Health, Mirupasi Lawyers and Lamana. He instructed the accused to collect rental cheques from the tenants and deposit them to his personal account, in the name of Joshua Ipi, when he was not in Port Moresby to collect the cheques himself. The cheques were to be paid into his personal BSP Bank Account No. beginning with “1000” and ending in “43”. He opened the account in Lae more than 10 years ago.
    
13. He registered “210 Real Estate” as a business name in November 2016: Exhibit G, Certificate of Registration of Business Name “210 Real Estate”. A company “210 Real Estate Limited” was incorporated on 1 March 2018: Company Extract, Defence Exhibit 1. (A further copy is Exhibit U).The company was registered with the Internal Revenue Commission on 25 May 2018: Exhibit H. Existing tenants continued to make cheques payable to Joshua Ipi pursuant to lease agreements between Joshua Ipi and the tenants. He has a tax identification number (TIN) and complies with tax obligations. New tenants paid rent to 210 Real Estate Ltd, which has a separate bank account. He was paying off his mortgage from his personal account into which the rental monies were deposited. There was a transitional process. Tenants now pay monies into the 210 Real Estate account.
    
14. At the time of the alleged offences tenants paid to “Joshua Ipi” personally. When he realised that certain cheques had not been paid into his account he asked the accused who told him that the tenants were on leave and would pay the rent when they returned. At the time he believed the accused. He trusted the accused. They go to the same church and his tambu knows him. The accused told him that he paid the cheques into the complainant’s account.
    
15. Under cross-examination the complainant agreed that he was a real estate businessmen who owns properties in Port Moresby and in Lae. He has title to properties at both Turua Avenue, at which there are nine rental units, and Lokua Avenue at which there are six. He is the sole owner of 210 Real Estate Limited. Lae properties come under a different company: Ipi Lodge and Apartment Ltd. His business address in Lae is PO Box 780, Lae. In total he employs eight people. At 210 Real Estate he employs four. He agreed that he told police that he employed the accused as a casual employee. He first employed the accused to work for him as Joshua Ipi and later for 210 Real Estate. He paid him K350 per fortnight.
    
16. The complainant agreed that he told police that K156,865.65 was payable to him by Gangloff Consultants Ltd: Ipi’s statement dated 28 February 2018 admitted as Defence Exhibit 2.
    
17. He also agreed that the Health Department pays rent of K23,400 quarterly to Joshua Ipi personally: Defence Exhibit 3, Department of Health Remittance Advice. The others pay monthly.
    
18. He maintained that 210 Real Estate Ltd pays tax yearly to the State. The business address for the company according to the Taxpayer Registration Certificate is the same as his personal address. He has an accountant who prepares financial reports.
    
19. Maria Fe Imperial, is the Accounting Administration Manager of Lamana Hotel. She has been employed with the hotel for 15 years. Joshua Ipi is her landlord. She has been renting the property at Section 54, Lot 30, Lokua Avenue, Boroko since 2015. There is no written tenancy agreement between Joshua Ipi and Lamana Hotel because the hotel is paying only a portion of the rent. The majority of the rent is paid by her husband’s employer, the Department of Education. The balance of K2050 is paid monthly by Lamana Hotel by cheque payable to Joshua Ipi. If she saw Ipi she paid to him. Otherwise cheques were given to Felix the caretaker, whom she identified in court as the accused. Following the events the subject of these proceedings, she now deposits rental payments directly to Joshua Ipi’s account.
    
20. She identified the following cheques as ones she had given to the accused:
    
    1. Exhibit I, BSP Cheque No 222878 dated 3 January 2018 drawn on the account of Lamana Hotel Ltd and payable to Joshua Ipi in the sum of K2050;
    2. Exhibit J, BSP Cheque No 222677 dated 7 December 2017 drawn on the account of Lamana Hotel Ltd and payable to Joshua Ipi in the sum of K2050;
    100. Exhibit K, BSP Cheque No 222159 dated 3 October 2017 drawn on the account of Lamana Hotel Ltd and payable to Joshua Ipi in the sum of K2050;
    4. Exhibit L, BSP Cheque No 221927 dated 1 September 2017 drawn on the account of Lamana Hotel Ltd and payable to Joshua Ipi in the sum of K2050.
       
21. Under cross-examination she agreed that she was aware that 210 Real Estate Limited was owned by Joshua Ipi. Lamana was not one of its corporate tenants. Lamana paid Joshua Ipi direct at his request.
    
22. John Malingia is employed by the Department of Health Pay Office. He is solely responsible for issuing cheques to suppliers of the Department Paymaster.
    
23. He recognised Defence Exhibit 3 as a copy of a cheque issued to Joshua Ipi for rental payments for the month of July to September for Dr Simeona’s rent. The Health Department usually pays doctors’ rent quarterly. Dr Simeona is currently employed as the Public Health Manager for NCDC Health Services.
    
24. According to the Department’s processes, the owner or his agent will collect the cheque from the pay office, or the cheque may be collected by the Housing Officer who raises the cheque in the first place. The Housing Officer is responsible for receiving invoices and paying doctors’ rent. He identified the signature of the former Housing Officer, Ian Doggie, as collecting the cheque, who would then have called Joshua Ipi or his agent to collect the cheque.
    
25. Exhibit M is a copy of Department of Health Remittance Advice dated 24 October 2017 and cheque in the sum of K23,400 for the payment of Dr N Simeona’s rent for the period October to December 2017.
    
26. Under cross-examination the witness agreed that in 2017 the Department paid a total of K93,600 in rent to Joshua Ipi as per the contract between the Department and the property owner. As far as he recalls the Department has been paying Joshua Ipi for two years. He is fully aware that 210 Real Estate is owned by Joshua Ipi. In 2017 Joshua Ipi did not have a company under that name. There was a contract between the Health Department and Joshua Ipi, who was the owner of the property.
    
27. He did not agree that payments by the Department to the complainant, a private individual, were improper or illegal. He repeatedly maintained that there was a contract in place to pay the complainant in his own name. He did agree that payments should have been made into a company account for tax purposes but in re-examination clarified that this was only if there was a contract in place to that effect.
    
28. Elizabeth Suelip has been a lawyer since 2001. She is now a partner at Modeli and Associate Lawyers. Prior to July 2019 she was employed by Mirupasi Lawyers. She has been living at Section 30, Lot 54, Lokua Avenue, Boroko since the end of 2016. She pays K7600 rent per month. She identified Exhibit N as the letter dated 6 June 2019 she wrote to the Property Manager of 210 Real Estate Limited:
    

“I reside at Unit 6, Section 54, Lokua Avenue, Boroko, National Capital District. This premises is owned by 210 Real Estate.

Enclosed is a copy of payment of rental from my firm, Mirupasi Lawyers General Account No. 12872071, ANZ Port Moresby for K7600 made out to Joshua Ipi as received by Felix Ipi.”

29. A copy of the said cheque, dated 6 July 2017, is enclosed, together with a signed Mirupasi Lawyers “Acknowledgement of Receipt” by “Felix Ipi” dated 7 July 2017.
    
30. She identified the accused in court as the person who represented himself to her as “Felix Ipi”. She paid the rental cheques to the accused because he was the person whom she had contact with initially when she started as a tenant and the accused told her he was the property manager for 210 Real Estate. He gave her the monthly invoices and came to the unit to collect the rent, which was paid accordingly. At the relevant time, the invoices were in the name of Joshua Ipi. In 2016 and 2017 no one other than the accused collected the rental cheques.
    
31. There was no written tenancy agreement but a letter was initially provided stating rental and bond fees. She still resides at the property but now gives the cheque to a new property manager. She started receiving invoices in the name of 210 Real Estate when the new property manager, Jerry Wai, started.
    
32. Under cross-examination it was put to her that Mirupasi Lawyers made rental payments to Joshua Ipi which the accused received on the latter’s behalf on a monthly basis. She agreed.
    
33. Detective Sergeant Max Makeso produced the following documents:
    
    1. Exhibits O and P, court order and search warrant, respectively, both dated 20 March 2018, in respect of Westpac Bank Account No. 6006314849 in the name of Felix Ipi;
    2. Exhibit R, Westpac Bank PNG Limited statement for Account No. 6006314849 in the name of Felix Ipi, for the period 6 May 2017 to 6 November 2017, produced in response to the warrant;
    100. Exhibits S1, S2 and S3, bundle of deposit and withdrawal slips relating to Westpac Bank Account No. 6006314849 in the name of Felix Ipi showing:
         1. Cash withdrawal of K4300 on 25 September 2017;
         2. Cash deposit of K3500, undated;
         3. Cash deposit of K450 on 14 July 2017;
    4. Exhibits T1 and T 2, court order and search warrant, respectively, both dated 3 July 2019 in relation to documents held by the Registrar of the Investment Promotion Authority for 210 Real Estate and Ipi Lodge & Apartment Companies;
    5. Exhibit U, Certificate of Incorporation for 210 Real Estate Limited, showing incorporation on 1 March 2018;
    6. Exhibit V, Certification of Incorporation for Ipi Lodge and Apartment Limited showing incorporation on 30 June 2016;
    7. Exhibit W, Company Extract for Ipi Lodge and Apartment Limited showing Joshua Ipi as the Director;
    8. Exhibit Q1 and Q2, the accused’s record of interview, pidgin original and English translation, respectively.
       
34. In his interview the accused admitted that he also uses the names Felix Ipi and Felix Pangali and that he committed the offence because his boss underpaid him but otherwise exercised his right to remain silent.
    
35. Under cross-examination Makeso maintained that he did not need the cheque butts to establish the legality of the payments, the cheques were sufficient. As to why the business address of 210 Real Estate Limited, as shown in Exhibit H, is the same as Joshua Ipi’s personal address, as shown in Defence Exhibit 3, he suggested that the complainant’s address is his business address. He confirmed that Joshua Ipi personally owns the Lokua Avenue property.
    
36. Jerry Wai, is employed by 210 Real Estate. He started in January 2018 after the accused left. His responsibilities include collecting cheques from tenants. All tenants pay to the account of 210 Real Estate. Tenants include Mirupasi Lawyers, Lamana Hotel, Health Department and others.
    

Assessment of Witnesses

37. In evaluating the witnesses, I have considered their credibility, that is, their honesty and their reliability. I have done so based upon a consideration of their evidence in the context of the case as a whole, their demeanour when giving evidence, and bearing in mind that I may choose to accept or reject, in whole or in part, the evidence of any witness.
    
38. I was impressed by all of the State witnesses and accept them as honest and reliable. I found the complainant to be a truthful witness. He gave his evidence in a direct manner, and was not shaken under cross-examination. Much of his evidence was supported by documentary exhibits. I don’t accept the submissions of the accused that he was evasive, aggressive and argumentative. All other State witnesses were equally straightforward and impressive.
    
39. Nor do I accept the accused’s submission that any of Ms Suelip, Ms Le or Mr Malingia admitted that they were deliberately making illegal payments to the complainant. They all clearly and repeatedly refuted that. Nor was the investigating officer evasive in any way. He was direct, open and to the point.
    

DEFENCE CASE

40. At the close of the State case the accused made an application to stop the case. I refused the application according to the principles outlined in The State v Roka Pep [1983] PNGLR 287, adopting and applying The State v Paul Kundi Rape [1976] PNGLR 96 and found that the accused had a case to answer.
    
41. I reminded the accused that he was under no obligation to prove anything in this trial. I explained to the accused the options available to him, including to give evidence, to give an unsworn statement, or to remain silent. He was also reminded that he might also call evidence in his defence, with or without giving evidence himself. The accused chose to make an unsworn statement from the dock pursuant to s. 527 of the Criminal Code. The statement was in written form and whilst headed “affidavit” was not sworn: Defence Exhibit 4.
    
42. An “unsworn statement” is a statement made by an accused person in court but whilst not in the witness box: The State v Topoma [1980] PNGLR 18. In the circumstances an accused person cannot be cross-examined on the contents of it.
    
43. The accused is, of course, under no obligation to give evidence. I remind myself that no adverse inference is to be drawn by the Court as a consequence of an accused person deciding to give an unsworn statement: Jimmy Ono v The State (2002) SC698.
    
44. A Court may take the statement into consideration as a possible version of the facts and consider it with the sworn evidence whilst giving it such weight as it appears to be entitled in comparison with the facts clearly established by the evidence: R v Ulel [1973] PNGLR 254 applying Peacock v The King [1911] HCA 66; (1911) 13 CLR 619.
    
45. The thrust of the accused’s case is that he did not deliberately apply anything that was legally obtained and owned by the complainant at the time of the alleged offences. Rather, he “misused the money because he was underpaid and also for other reasons”: Defence Exhibit 4 at paragraph 1(iii).
    
46. The accused says in his statement that (emphasis added):
    

“iv I completed my Grade Ten (10) education in 2012 at Porgera High School, Enga Province. While awaiting my examination results to continue my education into Grade eleven (11), the complainant promised to help me further my education in the city and brought me to Port Moresby....

5. In 2013, while in Port Moresby, instead of helping me to continue my education, he engaged me in his private business known as 210 Real Estate Ltd. I was engaged as a casual doing odd jobs around his properties and then as a caretaker. I was doing this for a year without pay.
   
6. In 2014, he said he was promoting me to property manager and thought me how to drive vehicle and supervise all his employees and do inspections on his properties in Port Moresby.
   
7. I was doing all paperwork for the company; all accounts work, raising invoices, collecting rental cheque payments and doing deposits, paying bills etc. He started paying me for only K280.00 as a Property Manager.
   
8. Between 2015 – 2017, under my supervision and care, we built the six (6) unit apartments at Lokua Avenue, East Boroko NCD and IPi Lodge and Apartment containing 34 rooms, Angau Drive, also at East Boroko, NCD. Previously he owned a nine (9) units Apartments also at East Boroko, Turua Avenue.
   
9. In total, the complainant owned fifteen (15) Apartment Units all occupied by corporate clients. He also owned IPi Lodge and Apartment containing 34 rooms. All these estate properties come under on (1) company name called 210 Real Estate Ltd.
   
10. The total monthly income I normally collect from the occupants and tenants of 210 Real Estate Company and deposit into various personal account of the complainant and Managing Director of 210 Real Estate Ltd Mr. Joshua Ipi is around K150,000.00 – K200, 000.00 at a minimum (per month)
    
11. Thinking, he would help me further my education as promised, I was loyal to him even though I was paid only K280.00 for doing all these work. If the property manager was paid that much, I don’t know how much was paid to the rest of his employees.
    
12. During this period, my continues request for my desire to complete my education fell on deaf ears. As I was also growing older, I saw that I have no hope of furthering my education and my chance of having a bright future through my education was getting slimmer. Some of my former school mates were already having a professional life in their own various fields. I felt that I was deprived of my education by the complainant.
    
13. I now came to realise that I was only being used as a cheap labour by the complainant to enrich himself.
    
14. During this same period, my younger brother who also does similar jobs in Lae, Morobe Province, for the complainant, was almost murdered by the complainant and his immediate family members for misusing one of his company vehicle. He did not compensate my brother. My old parents in the village had to sacrifice their only resources to travel all the way down to Lae, Morobe Province to visit my brother in hospital and were struggling to meet his medical bills.
    
15. While all these things were happening around my family including my personal life, I was living under huge pressure. Within that same period, I was informed and advised by some of the corporate tenants that the way we were managing and running the 210 Real Estate Company was not proper.
    
16. That was interesting and as I further enquired, I was told by the tenants that they (tenants) were not supposed to draw or pay their company cheques directly to the complainant, who was also the Managing Director of the company – 210 Real Estate Ltd. They said they supposed to draw cheques (payments) to the company account and not the Managing Director.
    
17. However, I told them that 210 Real Estate Ltd does not have a company account. What ever arrangements made between those corporate tenants and the complainant for such transactions to take place, I do not know. I was just doing my job as instructed.
    
18. After getting this news, I came to realised that maybe they were correct too because we were not even paying Company Tax to the State through PNG Internal Revenue Commission after collecting huge amount of money on a monthly basis. Then I thought may be the company was not registered as well. I was doing all the paperwork for the company.
    
19. Eventually, I discovered that we were illegally operating an unregistered company under the Company Name – 210 Real Estate Ltd – to inject and generate income into the personal account of the complainant who call himself the Managing Director of his company those does not have any business records.
    
20. Further, I also came to realised that the complainant Joshua Ipi deliberately and intentionally did this to avoid paying Company Tax to the State through the Internal Revenue Commission. Is evading Company Tax a crime against the state?
    
21. After establishing all these, I realised that what I was instructed to do by the complainant – that is, collecting Company cheques from the corporate tenants of 210 Real Estate Ltd as rental payments and depositing them into his various personal accounts instead of the company account – was illegal and not proper. They (tenants) suppose to pay directly to the company account because they were accommodated by the company (210 Real Estate Ltd) and not by the Managing Director and complainant Joshua Ipi in his private home.
    
22. So I knew that those monies were not genuine and clean monies because they were not transparently and legally obtained and owned by the complainant at that time. I thought the complainant already committed an offence of Money Laundering, therefore, those properties (cheques) were proceeds of crime. Therefore, I decided to use those monies (proceeds of crime) to meet my own personal needs.
    
23. All in all, I was prompted to by the information supplied to me by the corporate tenants, together with personal pressure I was under at that time, to use those monies for my needs.
    
24. I had no intention of deliberately misappropriating any property (cheques/monies) that was legally obtained and owned by the complainant at that time.”
    

47. In my view the accused’s statement is unconvincing having regard to the facts clearly established on the State’s evidence. The statement was not tested under cross-examination and contains numerous inconsistencies regarding his roles and responsibilities, the times at which the company 210 Real Estate Limited existed, and his knowledge of business operations. His claims regarding the extent of his roles and responsibilities under the employ of the complainant are patently exaggerated. The bases for his use of the monies are multiple and diverse. In summary, I am unable to accept the statement as truthful. I will return to particular aspects of it further below.
    
48. Nevertheless, I make it clear that the accused made the statement although he was not obliged to. By doing so, he did not take upon himself any obligation to prove anything in this trial.
    

MISAPPROPRIATION

49. Section 383A of the Criminal Code creates the offence of misappropriation:
    

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

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:–

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3) For the purposes of this section–

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it.

50. To establish the offence the prosecution must prove beyond reasonable doubt the following elements, such that the accused:
    
    1. applied;
    2. to his own use or to the use of another;
    100. property;
    4. belonging to another person;
    5. dishonestly.
       

Havila Kavo v The State (2015) SC1450.

51. The accused submits that he takes no issue with elements a), b) and e), i.e. he does not dispute that he dishonestly applied the subject cheques to his own use during the alleged period but submits that the State has failed to establish beyond reasonable doubt that the cheques were “property”, “belonging to the” complainant.
    
52. I make clear that the State has the burden of proving each and every element of the charge contained in the indictment beyond reasonable doubt.
    

Property

53. The accused is charged with misappropriating “monies in the sum of K62,600”.
    
54. For the purposes of s. 383A of the Criminal Code, property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property: s. 383A(3)(a).
    
55. Section 530(6) and (7) of the Criminal Code, read together provide, so far as the description of property in an indictment, that an averment of money, without specifying any particular form of money, will be sustained by proof that the offender dealt with anything which is included in the term “money”. The term “money” is defined in s. 1 of the Code to include “cheques”.
    
56. I am satisfied beyond reasonable doubt that the following cheques are property, namely monies in the sum of K62,600, for the purposes of s. 383A:
    
    1. One cheque payable to Joshua Ipi by Mirupasi Lawyers in the sum of K7600 dated 6 July 2017, Exhibit N, (page 2);
    2. Four cheques payable to Joshua Ipi by Lamana Hotel Limited, each in the sum of K2050 and dated 1 September 2017, 3 October 2017, 7 December 2017, and 3 January 2018, Exhibits L, K, J and I; and
    100. Two cheques payable to Joshua Ipi by the Department of Health, each in sum of K23,400, and dated 3 October 2017 and 25 October 2017, Defence Exhibit 3 and Exhibit M, respectively.
         
57. Even if the cheques were illegally obtained or the proceeds of crime, which they are not for reasons discussed below, that would not change the fact that the cheques would still be “property”, namely “monies” for the purposes of s. 383A of the Criminal Code.
    

Belonging to another person

58. For the purposes of s. 383A(3)(d) of the Criminal Code “persons to whom property belongs includes the owner, any part owner, any person having a legal or equitable interest in or claim to the property...”.
    
59. In this case the cheques were drawn and intentionally delivered to the payee’s authorised agent or employee, namely the accused, who received the cheques at the direction of and on trust for the complainant. In the circumstances the complainant became the “true owner” of the cheques, or at a minimum acquired an equitable interest or claim to the cheques until they were deposited into his bank account in accordance with his directions.
    
60. The accused submits that the cheques were not “clean and legal”, or were obtained through “fraudulent and illegal arrangements”, and therefore do not belong to the complainant on the basis that: the complainant did not register 210 Real Estate Limited until March 2018; the company is a “ghost company”; the monies were therefore laundered and fraudulent monies; the cheques are illegal; the complainant was conducting an illegal business activity; rental monies were paid without any proper agreements; and no cheque butts were produced for the cheques.
    
61. The evidence establishes that at the relevant time the rental properties at Turua and Lokua Avenues in Port Moresby were owned by the complainant in his own name. Exhibit E shows him holding title to Turua Avenue. I accept his evidence that he owned Lokua Avenue, which was not challenged.
    
62. The complainant rented the properties out to tenants who paid rent to him on a regular basis as agreed either orally or in writing. The cheques were made payable to him personally for that purpose.
    
63. Ms Suelip’s rent was paid on her behalf, by her employer by cheque payable to Joshua Ipi, according to the terms Ms Suelip was advised of in a letter at the beginning of her tenancy. Ms Imperial’s contribution to the rent was paid by her employer, Lamana Hotel Ltd, pursuant to an oral agreement, the bulk of rentals being met by her husband’s employer, the Department of Education. The Department of Health paid Dr Simeona’s rent pursuant to a contract between it and Joshua Ipi.
    
64. There was no “ghost company”. As shown by Exhibit G, the complainant registered the business name “210 Real Estate” in November 2016 (Exhibit G) but no company was incorporated until March 2018 (Defence Exhibit 1 and State Exhibit U), which was registered for tax purposes in May of the same year (Exhibit H).
    
65. There is nothing requiring a person to set up a company before they can lease out property owned personally. Nor did the monies belong to the company. It was not established until after the time of the alleged offences and in any event doesn’t own the property. Mr Ipi does, or at least he did at the time of the alleged offences.
    
66. Nor am I aware of anything requiring a tenancy to be in writing. The Landlord and Tenant (Miscellaneous Provisions) Act, 1975 supports this view.
    
67. Nor does the fact that the amounts were large make them illegal; it simply reflects the market price of rental property in Port Moresby.
    
68. It follows that the monies were not proceeds of crime: see The State v Bae (2019) N8029. (Even if they were, that would not of itself mean that the monies did not belong to the complainant.)
    
69. Nor were the cheque butts required before the cheques could be admitted in these proceedings, or to show that the cheque payments were authentic and legal. The cheques were admitted following identification by the relevant State witness in each case.
    
70. Furthermore, whether or not the complainant was obligated to pay tax (and I assume that he was) on the rent received on the properties owned in his personal name, and indeed whether he failed to do so (although I accept his evidence that he did) is a separate issue from whether the rental monies belonged to him.
    
71. I am satisfied beyond reasonable doubt that the property the subject of the charge, namely rental monies in the sum of K62,600, belonged to the complainant, Joshua Ipi.
    

Applied to his own use or the use of another

72. As to what is meant by “applied to his own use”, I again refer to the case of R v Easton [1993] QCA 255; [1994] 1 Qd R 531, which I regard as instructive. See also The State v Douba (2018) N7627, and The State v Joseph Wei (2018), unreported, 7 February 2020. The case concerned s. 408C of the Queensland Criminal Code, on which s. 383A of the Criminal Code is modelled. In considering the meaning of “applied to his own use”, Macrossan CJ said (emphasis added) at page 534:
    

“It can be accepted that the section envisages some interaction between the person and the thing and this will not be met merely by the formation of an intention to act or the devising of a plan in respect of the thing. The section nevertheless stops short of requiring that there should be some consumption, expenditure or dissipation of the thing, alteration of its form or utilisation of it to secure some collateral material benefit, although these may be involved. I consider that the requirement of this part of the section is met when there has been a utilisation by the person involved for his own purposes. While the ways in which this may occur are legion, one example may illustrate the very minimal level of activity which I think would be sufficient. If a person takes a picture or work of art belonging to another and puts it in a place for the purposes of his own private enjoyment of it he will have applied it to his own use. He does not, for example, have to sell the picture before it can be said that this has occurred.

...When he first takes the item in an unauthorised way from the person to whom it belongs and carries it towards his house to implement his plan, I consider that he will have already applied it to his own use...

...before an item of property will be "applied", there has to be a mental element, an intention held in relation to the thing, and also there has to be some implementation of that intention, i.e. some act or acts which constitute some dealing with the thing: in simple terms something has to be done to or with the thing. Usually there will be, I think, some influence exerted upon the thing affecting its form, location or its attributes. The "application" will involve some deflection from the purposes of the person to whom the property belongs.”

73. The evidence to establish this element of the offence is to some extent circumstantial. The principles governing such cases are well established. In a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. See also The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308):
    

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstantial evidence are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R 619 at 634. To enable the 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) C.L.R 234 at 252, see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 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 the facts in evidence: Peacock v. The Queen at p. 661.

An inference as to the guilt of an accused should be drawn only after the court had made a full and thorough evaluation of all the circumstances in evidence ...”.

74. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence: see the comments of the High Court of Australia in De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85 at [48]. Similarly, the principles applicable in a circumstantial case are no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: see Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at [2]. This will depend upon whether all of the evidence establishes that the only rational conclusion is the guilt of the accused.
    
75. The complainant’s evidence establishes that the accused was employed as his caretaker in Port Moresby and under direction to collect rent, which was payable by cheque from the tenants, and deposit the cheques to the complainant’s personal bank account held with BSP. I would have expected the State to produce statements for the relevant period from the complainant’s bank account. Nevertheless, I accept the complainant’s evidence that the cheques were not deposited to his account, which was not challenged.
    
76. Ms Suelip’s evidence, together with Exhibit N (the letter at page 1 and the acknowledgement signed by the accused as “Felix Ipi” at page 2) establishes beyond reasonable doubt that the accused received cheque no. 5765 drawn on the account of Mirupasi Lawyers in the sum of K7600, copy of which is contained at Exhibit N, page 2 for rent payable to the complainant. This was not in dispute. In fact it was put to Ms Suelip under cross-examination that she provided rental cheques to the accused, to which she agreed.
    
77. Furthermore, I am satisfied beyond reasonable doubt having regard to the above, and the name of the payee, the date of the cheque, the date of deposit and the value of the cheque that the only rational inference is that the cheque was deposited by the accused to Westpac Bank Account No. 7010657588 in the name of Joshua Ipi on 7 July 2017, the “bogus account”: see Exhibit D6.
    
78. The evidence of Ms Le establishes beyond reasonable doubt that Exhibits L, K, J and I, cheques payable to Joshua Ipi by Lamana Hotel Limited, each in the sum of K2050 and dated 1 September 2017, 3 October 2017, 7 December 2017, and 3 January 2018, were provided to the accused.
    
79. I am also satisfied beyond reasonable doubt having regard to the above and the name of the payee, the dates of the cheques, the dates of deposit and the value of the cheques that the only rational inference is that the cheques were instead deposited by the accused to the bogus Westpac Bank Account No. 7010657588 in the name of Joshua Ipi on 21 September 2017, 23 October 2017, 20 December 2017 and 13 February 2018, respectively: Exhibit D6, D4, D2, and D1.
    
80. The evidence of the complainant regarding the accused’s responsibilities, taken together with the evidence of Mr Malingia establish beyond reasonable doubt that Defence Exhibit 3 and Exhibit M, two cheques payable to Joshua Ipi by the Department of Health, each in sum of K23,400, and dated 3 October 2017 and 25 October 2017, respectively, were received by the accused.
    
81. I am also satisfied beyond reasonable doubt having regard to the above and the name of the payee, the dates of the cheques, the dates of deposit and the value of the cheques that the only rational inference is that the cheques were deposited by the accused to the bogus Westpac Bank Account No. 7010657588 in the name of Joshua Ipi on 4 October 2017 and 1 November 2017, respectively: Exhibit D4 and D3.
    
82. In summary, the evidence establishes beyond reasonable doubt that the accused received the cheques, failed to deliver them to the intended beneficiary in accordance with his instructions, and intentionally deposited them to the bogus account. The State has excluded any rational inference that the cheques were deposited to the bogus account in error. Those facts alone are sufficient to establish that the accused diverted the cheques from the purposes of Joshua Ipi and applied the cheques to his own use.
    
83. Moreover, it is not in dispute that the accused applied the cheques to his own use. He admits this in his unsworn statement in clear and unambiguous terms (emphasis added):
    

“xxii. ... therefore those properties (cheques) were proceeds of crime. Therefore, I decided to use those monies (proceeds of crime) to meet my own personal needs.

xxiii. All in all, I was prompted by the information supplied to me by the corporate tenants, together with the personal pressure I was under at that time, to use those monies for my needs.”

Dishonestly

84. The State must establish beyond reasonable doubt that at the time the accused applied the property to his own use he did so “dishonestly”. Pursuant to Wartoto adopting and applying Havila Kavo this requires (emphasis added):
    

“... a determination of the state of mind of the accused at the time of application of the property. Both the appellant and the respondent agree that dishonesty is a question of fact for the trial Judge to determine, based on the facts of the case and according to the ordinary standards of reasonable and honest people (Brian Kindi Lawi v The State [1987] PNGLR 183).

A subjective test must be applied: it must be proven beyond reasonable doubt that the accused in fact knew that he was acting dishonestly. However, in applying that test, an objective standard can be taken into account: it might reasonably be inferred that the accused must in fact have known that he was acting dishonestly (James Singo v The State (2002) SC700, The State v Gabriel Ramoi [1993] PNGLR 390, The State v Francis Natuwohala Laumadava [1994] PNGLR 291, The State v Andrew Ludwig Posai (2004) N2618, The State v Graham Yotchi Wyborn (2005) N2847, The State v Francis Potape (2014) N5773).”

85. Section 23(2) of the Criminal Code provides the defence of honest claim of right without intention to defraud:
    

“A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.”

86. In Wartoto v The State (supra) the Court set out the key principles to apply when determining whether the defence operates:
    
    1. A claim of right only has to be honest, it does not have to be reasonable (Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231, Sebulon Wat v Peter Kari [1975] PNGLR 325);
    2. If the accused presents evidence of an honest claim of right the State bears the onus of disproving it. It is not for the accused to prove that he had an honest claim of right. It is the duty of the State to prove that he did not have an honest claim of right (Magr v R [1969-70] PNGLR 165, Francis Potape v The State (2015) SC1613);
    100. Because it is a type of excusatory defence the State must disprove (exclude) the defence beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318);
    4. Whether an accused has an honest belief is a question of fact to be determined by the evidence in each case. It is not a matter of an accused simply saying on oath that he had an honest belief and having that assertion accepted, as such evidence might be unconvincing as it was, for example, in R v Hobart Magalu [1974] PNGLR 188 and The State v Henry Gorea [1996] PNGLR 141. Alternatively evidence of an honest claim of right might be convincing and unable to be disproven by the State, as it was, for example, in The State v Bruno Tanfa Chilong (2009) N3578 and The State v Emma Ombu Karakabo (2012) N4897;
    5. Once the defence operates, it is a complete defence to any offence relating to property of which fraudulent or dishonest intent is an element.
       
87. As above, a claim need not be reasonable provided that the accused “is honestly asserting what he believes to be a lawful claim even though it may be unfounded in law or in fact”: Gibbs J in R v Pollard [1962] QWN 13, 29 quoting R v Bernhard [1938] 2 KB 264, 270. The belief must be one of legal entitlement to the property and not simply a moral entitlement: R v Bernhard (1938) 2 QB 264; Harris v Harrison (1963) Crim LR 497.
    
88. In Ikalom & Anor v The State (2019) SC1888, the Supreme Court recently adopted the following statement by Gleeson CJ, Gummow and Hayne JJ of the High Court of Australia in MacLeod v R [2003] HCA 24; (2003) 214 CLR 230 at [41] as to what is meant by a claim of right:
    

"It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs."”

89. In Harris v Harrison (1963) Crim LR 497the accused’s belief that he was entitled to a pay rise did not amount to a belief in a legal right to a pay rise. In that case the accused was promised a pay rise when his managing director thought his work worthy of a rise. Without permission the accused retained substantial sums of money received as a salesman. The court held that “a belief in a moral right to a sum of money was not a defence to the charge”.
    
90. Furthermore, whilst a claim need not be reasonable, for obvious reasons, one that is unreasonable may be less likely to be believed as being genuinely or honestly held: see the comments of Gleeson CJ and Gummow and Hayne JJ of the High Court of Australia in Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 at [42].
    
91. In my view no honest claim of right has been fairly raised on the evidence.
    
92. In his record of interview, Exhibit Q2 at Q&A 20, the accused agreed to the proposition that “you committed this offence that your former boss under paid you?”. That evidence is not sufficient on its own to raise an honest claim of right in my view. Nor does paragraph 6 of the complainant’s statement, Defence Exhibit 2, take the matter any further. It refers to an admission by the accused which is in similar terms but relates to payments not the subject of the charges before this Court.
    
93. Nor has the claim been raised by the accused’s unsworn statement. In it he admits that he “misused” the monies. As above, the statement is otherwise of little weight when taken against the facts established by the evidence, and I am unable to accept it as truthful.
    
94. Furthermore, the reasons provided by the accused in his statement for his conduct are several: he was not paid at all in the first year, he was underpaid generally; his brother was almost murdered by the complainant and his family but no compensation was paid; he was under huge pressure from his family and in his personal life; and he believed the monies were illegally obtained.
    
95. The State’s evidence has excluded any suggestion that the accused was owed money by the complainant, or that he believed that he was owed any monies. The complainant’s evidence establishes that the accused was provided with housing and paid K350 per week from the time he was employed, and that the complainant had a number of employees, including those who prepared rental invoices, and that he used an accountant. It excludes the accused’s exaggerated claims as to his roles and responsibilities, that he was not paid at all during the first year, or was paid less than agreed. The accused’s claim that he was being used as “cheap labour” in general terms would at its highest amount to a moral and not a lawful claim to monies. In any event I am satisfied that those claims by the accused are false.
96. Similarly, the State has excluded any suggestion that the accused honestly believed that he was entitled to the monies because the complainant was operating illegally, or laundering the proceeds of crime, or evading tax. I do not accept the accused’s claim that the tenants told him that the rental arrangements were improper, or that they were supposed to make the cheques payable to “210 Real Estate Ltd” and not its Managing Director, the complainant. The State’s witnesses refuted any such suggestion. Nor do I accept the accused’s claims that he believed that the rental properties came under one company called 210 Real Estate Ltd but the rentals were paid into “various” personal accounts belonging to the complainant. There was no company in existence until 2018 and rental proceeds were paid into one account, as the accused well knew.
    
97. Nor do I accept the accused’s claim about compensation. Family or personal pressure are certainly no excuse to take monies belonging to another person.
    
98. Moreover, the accused doesn’t suggest that he was lawfully entitled to the monies applied, just that the complainant wasn’t either.
    
99. Nor is the accused’s conduct, in secret and over a number of months consistent with an honest belief in a lawful entitlement to the monies. He lied to the complainant about why the rental payments were late. He told the complainant that the tenants were away and later that the monies had been paid. The accused represented himself as “Felix Ipi” to Ms Suelip when that was not his name. The accused deposited the cheques into an account bearing the name of the complainant, when he knew it was not the complainant’s account.
    
100. Nor is the fact that the accused applied the monies to his own use consistent with a genuine belief that a crime had been committed against the State. Nor with his claim that “the corporate tenants” and the police have all failed in their responsibility to the State by knowingly engaging in an illegal business activity and “directly aided” the complainant to commit tax evasion against the State.
     
101. In summary, I am satisfied beyond reasonable doubt that it was dishonest according to the ordinary standards of reasonable and honest people for the accused to take rental monies payable to the complainant, which he had received on behalf of the complainant as his employee, and in respect of which he was under a direction to deposit to the complainant’s account, and apply them to his own use.
     
102. I am further satisfied beyond reasonable doubt having regard to those standards and the accused’s intelligence and experience that he realised that his conduct was dishonest according to those standards. It is the only rational inference.
     
103. The State has excluded any rational inference that the accused genuinely or honestly believed that he was entitled to the monies because he was underpaid, or for “other reasons”, or because the monies were “illegal”.
     
104. For similar reasons the State has also excluded any rational inference that the accused had acted under any honest and reasonable, but mistaken belief for the purposes of s. 25 of the Criminal Code that the cheques did not belong to the complainant because they were obtained illegally.
     
105. There is no dispute that at the time the accused was employed by the complainant or that the property was of a value of more than K2000 for the purposes of s.383A(2)(b) and (d), respectively.
     

Variance between indictment and evidence

106. On the above findings there was a variance between the date of the alleged offence and the evidence such that Exhibit I, in the sum of K2050, whilst dated 3 January 2018 was not applied, i.e. deposited to the bogus account, until 13 February 2018 and thus outside the date of the alleged offence.
     
107. The amount of monies alleged to have been misappropriated is not an essential element of s. 383A(1)(a) of the Criminal Code. Proof that the accused dealt with any portion of the value of it is sufficient to constitute the offence: S.530 (6) and (7) of the Criminal Code.
     
108. An indictment is not open to objection for stating imperfectly the time at which the offence was committed: Section 534(1)(c) of the Criminal Code. This reflects the common law rule that a date specified in an indictment is not a material matter unless it forms an essential element of the offence: The State v Titeva Fineko [1978] PNGLR 262, adopting R v Dossi (1918) 13 Cr App R 158. Whether the date of an offence is an essential element will depend on the circumstances of the case and the provisions of the statute creating the offence. WGC v R [2007] HCA 58; (2007) 233 CLR 66 considered. In The State v Douba (2018) N7627 I considered the application of these principles in detail. It is not necessary to do so in this case. Neither the State nor the accused addressed the issue. Instead the accused will be convicted of misappropriating monies in the sum of K62,600 less K2050, namely K60,550.
     

Conclusion

109. In conclusion, I am satisfied beyond reasonable doubt that the accused dishonestly applied to his own use monies in the sum of K60,550, belonging to Joshua Ipi, contrary to s. 383A(1)(a)(2)(b)(d) of the Criminal Code (Ch. 262) (the Criminal Code). The evidence led by the State to prove each of the elements of the offence is such that any reasonable hypothesis consistent with the innocence of the accused has been excluded.
     
110. Verdict: Guilty of misappropriation.
     

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Accused in person