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State v Posa [2021] PGNC 232; N8908 (5 July 2021)

N8908

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 347-356 OF 2017

THE STATE

v

JONAH POSA

Mt Hagen: Salika CJ
2021: 18^th February, 5^th July

CRIMINAL LAW – Practice and Procedure – No case submission – Principles in no case submission

Cases Cited:

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Tom Morris [1981] PNGLR 493

Counsel:

Mr F Popeu, for the State

Ms E Wurr with Mr Pepson, for the Accused

5^th July, 2021

1. SALIKA CJ: INTRODUCTION: At the end of the State case, Miss Wurr of counsel for the accused made a no case to answer submission on all the 39 counts of misappropriation.
   
2. At the outset, the accused on arraignment denied all the 39 counts of misappropriation.
   
3. The accused’s no case submission is premised on both legs of the Paul Kundi Rape (1976) PNGLR 96, case principles, ie; (i) where there is no iota of evidence on one or more elements of the charge of misappropriation, the accused must not be called to answer the charges and (ii) where there is some evidence on all the elements of the charges but that evidence is so insufficient and hopeless and the evidence has been so discredited in cross-examination that it is now so unrealiable or that the evidence as it stands is so unbelievable or so incredible such that no reasonable tribunal could convict on that evidence. See also State v Roka Pep (1983) PNGLR 19.
   
4. The general rule is that a judge should never be asked to weigh any evidence at the no case to answer submission. All evidence required to be weighed must be adduced before being weighed. The National Court per Miles J in The State v Tom Morris (1981) PNGLR 493 had this to say on the issue of weighing of evidence at the no case to answer submission stage:
   

“A trial judge has a discretion which may be exercised if he feels that the state of evidence would make a conviction unsafe. The discretion does not have to be exercised in all cases. It is not likely to be exercised unless the degree of danger involved in a conviction is substantial enough to cause the trial judge to exercise the discretion. As I understand it, a trial judge may properly allow a case to go to a jury, even though a court of criminal appeal will upon a later review of the case decide that the state of evidence is so unsatisfactory as to require the conviction to be quashed. The quashing of the conviction in this way does not mean that the trial judge’s exercise of discretion was wrong.”

5. Miles J was of the view that to weigh or not to weigh the evidence at the no case to answer submission stage was a matter of discretion for a trial judge. With respect, I would agree with his view. My own practice has been largely not to weigh any evidence and not say anything in relation to the weight or veracity of the evidence. My practice is to uphold a no case submission where there is evidence on an element of a charge. Where there is some evidence on all the elements of the charge, I usually dismiss the no case to answer submission.
   
6. Miss Wurr’s submission as I understand it to be is that there is some evidence but it is not sufficient in that there is no direct evidence the accused actually cashed the money and used it on himself. She is in effect asking the Court to weigh the state of the evidence at the no case to answer submission and decide the matter there. She submitted that a reasonable tribunal cannot possibly convict on the evidence as it stands. I could exercise the discretion Miles J alluded to in the above quote, and exercise the Court’s discretion to weigh the evidence to decide whether on the evidence as it stands, I could convict the accused on all the counts. For now, I exercise the discretion of the Court not to weigh any of the evidence at this stage except to say that a good part of the State’s case rests on circumstantial evidence in so far as the actual cash-out is concerned, otherwise there is direct evidence that the accused facilitated the cash-outs on all occasions.
   

Count 1

There is evidence of a cheque made out in the name of the accused from WHPG Grant Acc No. 1101684852 for the amount of K40,000.00.

The cheque is made out to him and he is therefore the beneficiary. Who cashed it? There is no evidence who cashed it but he is the beneficiary. Case to answer.

Count 2

Same as Count No. 1 except the purpose of the cheque was to pay casual employees. Cheque was drawn out in the name of accused. He is the beneficiary – case to answer.

Count 3

Same as 1 and 2 – case to answer.

Count 4

Same as 1, 2 and 3 - case to answer.

Count 5

No evidence of the cheque – no case submission upheld.

Count 6

Same as 1, 2, 3 and 4 – case to answer.

Count 7

Same as 1, 2, 3, 4 and 6 – case to answer.

Count 8

Same as 1, 2, 3, 4, 6 and 7 – case to answer.

Count 9

Same as 1, 2, 3, 4, 6, 7 and 8 – case to answer.

Count 10

Same as 1, 2, 3, 4, 6, 7, 8 and 9 – case to answer.

Count 11

Same as 1, 2, 3, 4, 6, 7, 8, 9 and 10 – case to answer.

Count 12

Cheque was made out to a Suka Wagame. The confirmation letter was signed by accused and he also counter signed it for cashing. He played a part in having the money taken out. What happened to the money - Section 544 of the Criminal Code Act (CCA) may come into play here – case to answer.

Count 13

Cheque was made out to Suka Wagame. The accused signed it for cashing although the confirmation letter and the purpose for the cash requisition are not known and it is also not known who got the cash. The accused’s signature on the cheque for encashment enabled the cashing of the cheque and he could be caught under s. 544 of CCA – case to answer.

Count 14

Same as Counts 12 and 13 above. Case to answer.

Count 15

Cheque and confirmation letter signed by the accused and signed for encashment of the cheque. Same as Counts 12, 13 and 14. Case to answer.

Count 16

Case to answer.

Count 17

Case to answer.

Count 18

Case to answer.

Count 19

Case to answer.

Count 20

Case to answer.

Count 21

Case to answer.

Count 22

Case to answer.

Count 23

Case to answer.

Count 24

No case submission upheld.

Count 25

Case to answer.

Count 26

Case to answer.

Count 27

Case to answer.

Count 28

Case to answer.

Count 29

Case to answer.

Count 30

Case to answer.

Count 31

Case to answer.

Count 32

Case to answer.

Count 33

Case to answer.

Count 34

Case to answer.

Count 35

No case submission upheld.

Count 36

Case to answer.

Count 37

Case to answer.

Count 38

Case to answer.

Count 39

Case to answer.

In relation to the other charges, the accused has a case to answer on each of the other charges. Firstly, the procurement process to raise the cheques and cause to have the cheques processed and cashed by the accused and others were all done without following the proper process, thus leaving the Court for inferences to be drawn from such failure to follow the proper procurement process. The evidence is that the proper procurement process is to obtain 3 quotes from the service providers, and then to select the quote which suits the budget and the quality. All cheques were raised without following such proper procurement procedures in that the cheques were written out in favour of the accused and other officers employed in the Provincial Treasury Office in Mt Hagen which leads me to find that there is some evidence on each of the remaining charges and as such the accused has a case to answer on the remaining 36 charges.

7. It is ordered that:
   
   1. The accused has no case to answer in relation to Counts 5, 24 and 35.
   2. The accused has a case to answer on all other Counts.
      

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused