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State v Amu [2022] PGNC 121; N9570 (23 March 2022)

N9570

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 172 OF 2021

STATE

V

ROGER KANDA AMU

Waigani: Wawun-Kuvi, AJ
2022: 14^th -15^th & 23^rd March

CRIMINAL LAW-TRIAL-Stealing, section 372(1) Criminal Code-Whether accused fraudulently converted to his own use and the use of another cash monies?

The complainant is the owner of a security company called Wap & Co Limited. Willie Gamut and the accused are mechanics in the employ of Wap & Co Limited. Willie Gamut and the accused produced a quote and informed the complainant, that one of the company vehicles needed parts. The complainant gave Willie Gamut and the accused K2500.00 in cash to purchase the vehicle parts. The vehicle parts were never purchased, and the complainant did not receive any receipts as proof that vehicle parts were purchased.

Held:

1. On the charge of Stealing, the State must prove the following elements:

(1) the movable property of another: State v Kissip [2020] PGNC 17; N8184 and Illich v The Queen [1987] HCA 1; (1987) 162 CLR 110.

(2) The accused moved the property by some physical act, i.e, asportation: Regina v Albert [1953] PGSC 8 (1 April 1953), The State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888.

(3) The accused took or converted the property to his own use or the use of another: The State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888 (4)

(4) The accused took or converted the property with a fraudulent intent.: The State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888

2. The taking or conversion is fraudulent when done with one of the intentions described under subsection 4(a)-(f) of section 365: Ikalom v The State (2019) SC1888.
3. The word “converts” is not defined by the Code. Section 367 must be read with section 365 to determine whether conversion has taken place and remains the offence of stealing and does not become misappropriation: John Kasaipwalova v The State [1977] PNGLR 257(per Frost J).
4. Where the State alleges that the accused stole by conversion, it is required to prove that when the accused dealt with the property, he did so inconsistent with the rights of the owner.
5. Whether an accused can be convicted of stealing by conversion, depends entirely on the facts of the particular case.
6. In the present case, the accused remained silent. Whilst no inference of guilt can be drawn from the accused exercising his right to remain silent, the consequence is that the facts remain unchallenged: Paulus Pawa v The State [1981] PNGLR 498 and Ikalom v The State (2019) SC1888.
7. The Record of Interview (ROI) was tendered by consent. The accused states that vehicle parts were bought with K500.00. That he and Willie Gamut used K500 from the money that the complainant gave. The materials in the ROI are to be taken as sufficient proof without other evidence: State v Kerowa [2022] PGNC 10; N9393 (14 January 2022) and Davinga v The State [1995] PNGLR 263
8. The complainant only passed possession of the cash monies. The accused and Willie Gamut did not acquire ownership. When the accused used the money for a purpose other than vehicle parts, he did so inconsistent with the rights of the owner. He did so with an intent to permanently deprive the owner of the cash monies.
9. Verdict of guilty returned.

Cases Cited:
Papua New Guinean Cases

State v Kerowa [2022] PGNC 10; N9393
State v Kissip [2020] PGNC 17; N8184
Ikalom v The State (2019) SC1888
State v Karakabo [2012] N4897
The State v Hanaoi [2007] N4012
Davinga v The State [1995] PNGLR 263
John Kasaipwalova v The State [1977] PNGLR 257
Regina v Albert [1953] PGSC 8

Overseas Cases

Illich v The Queen [1987] HCA 1; (1987) 162 CLR 110

Reference

Criminal Code, Ch 262

Counsel

Ms Lois Illave, for the State
Ms Rachael Mangi, for the Defence

VERDICT

23^rd March, 2022

1. WAWUN-KUVI, AJ: Roger Kanda Amu (accused) is the nephew of Wasa Amu (the complainant). The accused father and the complainant are brothers. They are from Papayuku Village, Laiagam, Enga Province.
   
2. The complainant is self employed and his businesses ventures include construction and security. He is the owner of Wap & Co Limited, a security company.
   
3. In the company’s employment are Willie Gamut and the accused. Willie Gamut is the company’s mechanic, and the accused is an assistant mechanic.
   
4. On 7 August 2020, Willie Gamut and the accused went to see the complainant. They informed him that they needed money to purchase vehicle parts. The complainant was shown an invoice. He gave K2500.00 in cash to Willie Gamut in the presence of the accused.
   
5. The complainant did not receive any receipts confirming the purchase of vehicle parts.
6. The State alleges that Willie Gamut and the accused used K500.00 for their own purposes and not on vehicle parts.
   
7. The accused in his interview with police says that the complainant only gave K1000.00. That K500.00 was used to buy vehicle parts at Morata Wreckers and K500.00 was used by himself and Willie Gamut.
   
8. The accused has been charged for the stealing of K500.00. I must decide whether the accused stole the K500.00?

Onus of Proof

9. The State bears the burden of proving its case beyond reasonable doubt and disproving any defence properly raised beyond a reasonable doubt.

The Elements

10. The elements of stealing under Section 364 and 365 of the Criminal Code are:
    • (a) the movable property of another.^[1]
    • (b) The accused moved the property by some physical act, i.e, asportation.^[2]
    • (c) The accused took or converted the property to his own use or the use of another.^[3]
    • (d) The accused took or converted the property with a fraudulent intent.^[4]
      
11. The taking or conversion is fraudulent when done with one of the intentions described under subsection 4(a)-(f) of section 365: State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 Ikalom v The State (2019) SC1888 and Illich v The Queen [1987] HCA 1; (1987) 162 CLR 110
    
12. The State need not prove that the taking or conversion was without the consent of the owner. The State is only required to prove that when the accused took or converted the property, he did so with one of the intentions under section 365.
13. The practical effect is that a person is not criminally responsible for taking or converting property with the consent of the owner. The requirement to prove that the accused obtained property without the consent of the owner was a common law requirement that did not find its way into the Criminal Code. In similar provisions in Western Australia, on appeal to the High Court of Australia, Gibbs CJ stated:
    

“The Code does not require the taking or conversion be without the consent of the owner, but at least in a case where no question of special property arises, and where there is no attempt to defraud, the practical effect of its provision is that a person who takes or converts goods will not be criminally responsible if he acts with the consent of the owner or under an honest and reasonable but mistaken belief that he is acting with the owner’s consent”: Illich v The Queen ([1987] HCA 1; 1987) 162 CLR 110 at para [8].

The Evidence

14. In the present case, the accused remained silent. Whilst no inference of guilt can be drawn from the accused exercising his right to remain silent, the consequence is that the facts remain unchallenged: Paulus Pawa v The State [1981] PNGLR 498 and Ikalom v The State (2019) SC1888.
    
15. The Record of Interview (ROI) was tendered by consent. The accused states that vehicle parts were bought with K500.00. That he and Willie Gamut used K500 from the money that the complainant gave. The materials in the ROI are to be taken as sufficient proof without other evidence: State v Kerowa [2022] PGNC 10; N9393 (14 January 2022) and Davinga v The State [1995] PNGLR 263.
    
16. The question for determination, is whether the State has proven the elements of the offence to the required standard.
    
17. There is no dispute that the accused took K500 and applied it to a use other than purchasing vehicle parts. This is taken from the ROI and the evidence of the complainant stating that the accused and Wille Gamut did not return the money and vehicle parts were not purchased.
    
18. In this case, the owner had given the money over to the accused and Willie Gamut. The accused admits in the ROI that he and Willie Gamut used the money.
    
19. The State alleges that the accused stole by fraudulently conversion because the owner had given the money to the accused.
    
20. The only question which remains is whether the accused converted the money with any of the intents mentioned in section 365(4) (a)-(f) of the Code.

Issue

21. Did the accused possess an intent to fraudulently convert the sum of K500 to his own use?

The Law

22. In this case, the complainant gave the money over to the accused. As stated, under the Code the State does not need to prove that the accused took the money without the consent of the owner.
    
23. In Illich v The Queen [1987] HCA 1; (1987) 162 CLR 110 per Wilson and Dawson JJ. at para [11], their Honours stated:
    

“Under the Code, stealing contains no trespassory element although there must be taking. The question whether a person could, under the Code, steal something in his lawful possession, is answered by the express provision that a person may steal, not only by fraudulently taking something, but also by fraudulently converting to his own use. Of course, a person may convert something which is in his possession, although he cannot convert something he also owns. That is because conversion in the criminal law at least involves a dealing with the thing said to be converted in a manner inconsistent with the owner’s right in the thing”. [Emphasis mine]

24. The word “converts” is not defined by the Code. Section 367^[5] must be read with section 365 to determine whether conversion has taken place and remains the offence of stealing and does not become misappropriation: John Kasaipwalova v The State [1977] PNGLR 257(per Frost J).
    
25. There has been no attempt to define conversion^[6] however in John Kasaipwalova v The State [1977] PNGLR, Frost J stated:
    

“It has been pointed out in a case in England that no judicial definition has been attempted, the civil law definition is inappropriate, because a claim for damages for conversion cannot succeed unless the owner has suffered damage, which is not the case in a criminal prosecution for fraudulent conversion. conversion involves a bailee in the crime of stealing. At common law a prisoner must be shown to have possession of the goods and generally what the prosecution must prove is some conduct on the part of the prisoner setting up a full title to the property or asserting a right to pass the property.”

26. Considering the above statement in law, what the State is required to prove it that when the accused dealt with the property, he did so inconsistent with the right of the owner.
    
27. The scenario provided in John Kasaipwalova v The State [1977] is demonstrated to reflect that in the present case, there was no more than a bailment. The scenario is where “a person hands a boy a 20-toea coin, with instructions to buy him a newspaper and bring back the change.”
    
28. It is also noted that under s. 365(5) it is expressly provided that in the case of conversion it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. “Any physical act amounting to a disposal of the thing would appear to constitute an instance of a conversion if the thing is not held in the bailee’s possession.”^[7]
    
29. Also, it cannot be said that in every situation where a person hands over money, there lies a case of conversion. Much is dependent about the factual circumstance of each case. In a situation where, “it is intended that the very coins, notes or cheque shall be retained until they are applied” those specific money remain the property of the person who handed the money over until it is used. Where a person comes into possession of the money, uses it but still acts on the direction but uses different notes, coins, or cheques, that may not amount to stealing by conversion. As stated, whether the accused can be convicted of stealing by conversion, depends entirely on the facts of the particular case. ^[8]

Application of the law to the facts

30. In the present case, the accused and Willie Gamut were given the money specifically to purchase motor vehicle parts. This was admitted by the accused in his interview with police. The complainant did not give over ownership of the money to the accused and Willie Gamut but merely possession. The money was given with specific directions for the purchase of the motor vehicle parts. The accused became the bailee for the money. His actions of taking the money and using it on himself and or on Willie Gamut were not according to the directions for which the money was given and was inconsistent with the rights of the owner. I find that when he converted the money to, his and Wille Gamut’s use, he did so with an intent to permanently deprive the complainant of the said money.
    
31. I am satisfied therefore that the accused stole the sum of K500.00.
    
32. Verdict of guilty is returned.

Orders:

33. The Orders of the Court are:
    
    • (1) A Verdict of Guilty is Entered.
    • (2) The accused is convicted of the charge of Stealing

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence

^[1] State v Kissip [2020] PGNC 17; N8184 and Illich v The Queen (1987) 162 CLR 110
^[2] Regina v Albert [1953] PGSC 8 (1 April 1953), State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888
^[3] The State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888.
^[4]The State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888
^[5] 367. FUNDS, ETC., HELD UNDER DIRECTION.
(1) Subject to Subsection (2), where a person receives, alone or jointly with another person, any money or valuable security, or a power of attorney for the sale, mortgage, pledge or other disposition of any property, whether capable of being stolen or not, with a direction that–

(a) the money or any part of it; or
(b) any other money received in exchange for it, or any part of it; or
(c) the proceeds or any part of the proceeds of the security, or of the mortgage, pledge, or other disposition,
shall be applied to any purpose or paid to any person specified in the direction, the money and proceeds shall be deemed to be the property of the person from whom the money, security, or power of attorney was received until the direction has been complied with.

(2) Where in a case to which Subsection (1) applies the person receiving the money, security or power of attorney, and the person from whom he receives it, ordinarily deal with each other on the term that in the absence of any special direction all money paid to the former on account of the latter would be properly treated as an item in a debtor and creditor account between them, the former cannot be charged with stealing the money or any such proceeds unless the direction is written.

^[6] John Kasaipwalova v The State [1977] PNGLR and Illich v The Queen (1987) 162 CLR 110
^[7] John Kasaipwalova v The State [1977] PNGLR per Frost CJ
^[8] John Kasaipwalova v The State [1977] PNGLR per Frost CJ quoting Jordon CJ in R v Ward [1938] NSWStRp 5; 38 SR (NSW) 308. Extract found in