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State v Tony [2024] PGNC 365; N11038 (1 October 2024)

N11038

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) 11 OF 2024


STATE


V


MARTIN TONY


Waigani: Wawun-Kuvi, J
2024: 15th & 22nd August, 3rd &13th September, 1st October


CRIMINAL LAW-TRIAL-MISAPPROPRIATION- MENS REA-HONEST CLAIM OF RIGHT- Whether the accused was dishonest?
CRIMINAL LAW-EVIDENCE-ACCOMPLICE EVIDENCE-Whether the prosecution’s witness is an accomplice? Whether the evidence was independently corroborated?


The Kundiawa-Gembogl District Development Authority (KGDDA) engaged the accused as a consultant. He was responsible for establishing and managing the business arm of the KGDDA, known as Ago Tech Produce Limited. During his engagement, the KGDDA provided him with a motor vehicle described as a white Toyota Landcruiser registration number BFO 361. In December 2020, he left KGDAA and moved to Port Moresby to become the First Secretary to the Minister for Police. In 2021, the District Procurement Committee awarded the motor vehicle to him as a token of appreciation. The prosecution now alleges that the committee did not convene and did not make the decision. It claims that the letter purportedly from the committee under the hand of the Chairman was obtained under duress. The prosecution has charged the accused with one count of misappropriation of the said motor vehicle.


Held:

  1. A claim of right under s 23(2) of the Criminal Code entails a belief as to the right to property or money in the hands of another. The defence removes criminal responsibility or liability for an act involving property carried out in the exercise of a genuine claim of right and without any intention to defraud: Kaya & Kaman v State [2020] SC2026 following Wartoto v The State [2019] SC1834.
  2. The accused has no obligation to exclude the defence of an honest claim of right. To require him to exclude the defence, would amount to shifting the burden of proof: Wartoto v The State [2019] SC1834 and Kaya & Kaman v State [2020] SC2026.
  3. Once the evidence presents a viable case of honest claim of right for consideration, the prosecution bears the legal onus of negativing beyond a reasonable doubt: Wartoto v The State [2019] SC1834 and Kaya & Kaman v State [2020] SC2026.
  4. The prosecution has not demonstrated that the vehicle was awarded without proper decision-making processes. The accused has maintained that he was owed outstanding allowances, which were not paid, and when he was awarded the vehicle, he made the decision to waive his claim for outstanding allowances. The prosecution has not disproved this claim.
  5. The prosecution's case relies solely on the evidence of an accomplice, whose credibility is diminished by the absence or lack of independent corroboration.
  6. While the evidence fairly raises an honest claim of right the prosecution has not discharged its burden to negate it. A verdict of not guilty is returned.

Cases Cited
Japele v State [2023] PGSC 100; SC2454
Kaya v State [2020] PGSC 145; SC2026
Ikalom & Anor v The State (2019) SC1888
Wartoto v The State [2019] SC1834
Francis Potape v The State (2015) SC1613
Kavo v The State [2015] SC1450
Bukoya v State [2007] PGSC 15; SC887
Avini and Acosta v The State [1997] PGSC 9; SC523
Pari and Kaupa v The State [1993] PNGLR 173
Brian Kindi Lawi v The State [1987] PNGLR 183
John Jaminan v The State (No 2) [1983] PNGLR 318
State v Amoko-Amoko [1981] PNGLR 373
State v Nataemo Wanu [1977] PNGLR 152
Sebulon Wat v Peter Kari [1975] PNGLR 325.
R v Hobart Magalu [1974] PNGLR 188
Magr v R [1969-70] PNGLR 165
State v Namaliu [2020] PGNC 75; N8284
State v Felix Luke Simon (2020) N8183
State v Emma Ombu Karakabo (2012) N4897
State v Bruno Tanfa Chilong (2009) N3578
State v Henry Gorea [1996] PNGLR 141
Tiden v Tokavanamur-Topaparik [1967-1968] PNGLR 231


Reference
Criminal Code, Ch 262
Official Personal Staff Act 1980


Counsel
H Roalakona & L Ilave, for the State
S Wanis, for the Accused


VERDICT


1st October 2024


  1. WAWUN-KUVI, J: The prosecution charges Martin Tony (accused) of Igidi Village, Sinesine-Yongomul, Simbu Province, with dishonestly applying to his use, a white Toyota Landcruiser with registration number BFO 361 and engine number 0915140, valued at K200,000.
  2. It alleges that sometime in 2018, the Kundiawa-Gembogl District Administration purchased a fleet of vehicles from Ela Motors to serve the people of Kundiawa-Gembogl District. The vehicle described as BFO 361 was one of the vehicles.
  3. That around 2019 or 2020, the accused took possession of the vehicle, and it was never used for its intended purpose which was to serve the people of Kundiawa-Gembogl.
  4. The accused served as the First Assistant Secretary to the then-Minister for Police, who was also the sitting Member of the Kundiawa-Gembogl District, from 21 December 2020 to 3 January 2022.
  5. On or about July 21, 2021, he acquired the vehicle outside of the proper procurement process.
  6. In 2022, the newly elected Member then initiated investigations, which revealed that assets, including the said motor vehicle, were missing.
  7. The prosecution alleges that the accused dishonestly took possession of the motor vehicle and registered it under his name instead of using it for the intended purpose of serving the people of Kundiawa-Gembogl District. That the accused committed the offence of misappropriation under s 383A(1)(a)(2)(d) of the Criminal Code.

Onus of Proof


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


The Elements


  1. The Supreme Court in Kavo v The State [2015] SC1450 and Wartoto v The State [2019] SC1834 identified the following elements for misappropriation under section 383A(1)(a):


The Evidence


  1. The prosecution called Alphonse Kawage, the district administrator, and the arresting officer to give evidence and tendered without objection documentary evidence exhibited from S1 to S13.
  2. The accused gave sworn evidence in his defence.

Issue(s)


  1. It is not disputed that the accused took possession and transferred the motor vehicle registered as BFO 361 without payment to the previous owner.
  2. It follows that crucial and the only issue for determination is whether the accused was dishonest.

Consideration


  1. Prior to resolving this issue, I address first the issue of ownership. This is because the prosecution charged the vehicle's owner as being the Independent State of Papua New Guinea; however, it tendered various documents indicating that the vehicle's owner is either the Kundiawa-Gembogl District Development Authority or the Kundiawa District Administration.
  2. To resolve this, I have had to refer to the list from Motor Vehicle Insurance Limited (MVIL) exhibited as S5. Since MVIL is responsible for vehicle registration, its records should reflect the owner before the transfer to the accused. According to that list, the owner of BFO 361 is Kundiawa District Administration. Based on the list, I can accept that the Kundiawa District Administration owned the vehicle registered as BFO 361. The basis of this position is twofold: (1) under s 589 of the Criminal Code, because the prosecution tendered the list into evidence without objection, it is considered a proven fact without the need for further evidence; and (2) the ownership of the vehicle is not a contested issue; see Bukoya v State [2007] PGSC 15; SC887 at paragraph 19 on the effect of s 589 of the Criminal Code.
  3. Based on this, I accept the prosecution's submissions that since State funds funded the purchase of the vehicle, it follows that the State is considered an owner: see s 383A(3)(d) of the Criminal Code and authorities in Kaya v State [2020] PGSC 145; SC2026, Wartoto v State [2019] PGSC 55; SC1834 and Brian Kindi Lawi v The State [1987] PNGLR 183.
  4. Having resolved the issue of ownership, I now address the issue of dishonesty.
  5. The prosecution contends that the accused was dishonest and that he is not entitled to the defence of an honest claim of right. Conversely, the accused position is that the District Procurement Committee awarded the vehicle to him, and the prosecution has failed to provide evidence disproving this. To support its position, he invokes the defence of an honest claim of right under Section 23(2) of the Criminal Code.
  6. To resolve this, I must first determine whether the evidence supports the defence of an honest claim of right under s 23(2) of the Criminal Code. I take this approach for two reasons: (1) dishonesty is a common element in both the charge of misappropriation and the defence of an honest claim of right, and (2) an honest claim of right is a complete defence.
  7. A claim of right under s 23(2) entails a belief as to the right to property or money in the hands of another. The defence removes criminal responsibility or liability for an act involving property carried out in the exercise of a genuine claim of right and without any intention to defraud: see and Kaya & Kaman v State [2020] SC2026 following Wartoto v The State [2019] SC1834.
  8. In Wartoto v The State [2019] SC1834 later adopted and followed in Kaya & Kaman v State [2020] SC2026, the Supreme Court established the following principles:
  9. Additionally:


Does the evidence sufficiently raise an honest claim of right.

  1. The accused stated in the Record of Interview (ROI) exhibited as S4 and in his evidence in court that the Kundiawa District Development Authority owed him allowances, that the District Procurement Committee gave him the vehicle for services he had rendered to the Kundiawa-Gembogl District, that he accepted the offered vehicle, and that he waived the claim to outstanding allowances.
  2. Considering the relevant case authorities, I ask whether these are mere assertions.
  3. The prosecution tendered the ROI without objection. It also relied on the Supreme Court principle in Avini and Acosta v The State [1997] PGSC 9; SC523 to have all documents acknowledged by the accused in his ROI accepted into evidence as part of its case. The ROI and the documents related to the claim for outstanding allowances, the procurement committee's decision to award the vehicle, and the vehicle transfer documents.
  4. The significance of those documents lay in the incontrovertible fact that police investigations did not uncover the documents. Instead, the accused gave the documents to the arresting officer to prove that he had lawfully acquired the vehicle. The arresting officer stated that he contacted Alphonse Kawage to verify and comment on the documents, but Alphonse Kawage never did. The arresting officer went ahead to question the accused and put the documents to him without verification.
  5. A significant document that was given to the arresting office was the notice of disposal by the District Procurement Committee signed by Alphonse Kawage.
  6. The combined effect of the police not verifying the documents including the notice of disposal and then having them tendered as part of the prosecution’s case is that it is accepted as part of the prosecutions case that the District Procurement Committee awarded the vehicle to the accused.
  7. At question and answer 58, the accused made a specific statement.

“I am not guilty of the charges. However, they are severe. It is my first time talking in ROI. The district awarded me the vehicle as compensation for my work. They awarded me the vehicle as part of their established procurement process."


  1. The prosecution was aware of the claim of entitlement to some outstanding payments. The prosecution's post-committal efforts to gather additional evidence from the Department of Personal Management about the outstanding allowances shown in S6, along with their efforts to elicit evidence from Alphonse Kawage about the accused's entitlement to outstanding allowances, clearly indicate their awareness of this claim. To my mind, these efforts demonstrate an attempt to refute the claim of an honest right, which was evident in the evidence.
  2. I am satisfied that the evidence fairly raises an honest claim of right.
  3. The next question is whether the prosecution has negated the defence beyond a reasonable doubt.

Has the State has negated this claim beyond a reasonable doubt?


  1. I again remind myself that reasonableness is not required to prove honest claim of right. It may provide circumstantial evidence to support dishonesty, but it does not mean that just because the claim is not reasonable that a person is dishonest.
  2. As said the accused has always maintained since his arrest that he considered the vehicle as remuneration.
  3. The prosecution relied on the evidence of Alphonse Kawage. He was not an impressive witness. Despite his role as the District Administrator and Chief Executive Officer of the Kundiawa-Gembogl District Development Authority and the person solely responsible for the transfer of the motor vehicle, his answers were vague; his recollection of events was ambiguous; his statements were general and broad; and his demeanour indicated a lack of willingness to provide evidence.
  4. In response to questions from the prosecutor about the accused's remuneration, he responded, "We put money into the company account, and he should take the money, pay himself, and operate the company." The prosecutor did not enquire further. Alphonse Kawage himself did not attempt an explanation or elaborate on how much was paid into the company account, the intervals, or how much the accused was required to pay himself. Since these were government funds, he should have provided documentation, which the prosecution should have presented as records of the payments. There was none.
  5. He expressed uncertainty about payments to the accused and even speculated that the accused might have received K250,000. His demeanour indicated that he lacked certainty about this payment. During the cross-examination of the accused, it became clear that the prosecution lacked any evidence to support the assertions about the K250,000, and it remained a purely speculative claim due to the absence of specific details about the alleged payment. The accused's response to the prosecutor was not combative but rather a request for clarification on the specifics of the date, account the money was paid into, and other details. It was evident that there was none because, immediately following the accused request to the prosecutor, the prosecutor promptly abandoned any questions relating to the payment.
  6. I prefer the accused's evidence because it is based on his documents and his responses to both his lawyer and the prosecutor was straightforward. He was not evasive. He provided a detailed account of how he initially obtained and used the vehicle, which the prosecution did not challenge, indicating acquiescence.
  7. When the prosecutor put the proposition to him that the practice of awarding property as remuneration was not proper, he agreed. He stated that it was not proper, but that was what the committee decided. It was not his decision. The tone with which he responded to the question and his demeanour was frank and direct, which, to me, indicated genuineness.
  8. The accused was not asked whether he was dishonest in transferring the vehicle or if the method of receiving the vehicle was fraudulent. Instead, the proposition was that remunerating individuals with property was improper.
  9. I deviate here to address the prosecution's invitation to me to make a finding that improper practices are dishonest. I have difficulty accepting this reasoning. Doing something that is not proper does not necessarily mean that it is dishonest. To illustrate, public servants receive remuneration based on the number of hours they work. In the event of a gazetted public holiday, they enjoy a day off without losing their pay. If a practice develops to celebrate an event, such as independence, during working hours on a day that is not gazetted as a holiday, and I apply the prosecution's reasoning, am I to conclude that all officers who abandon their duties and attend the event are dishonest? After all, it is a paid workday rather than a gazetted public holiday, and the officers in question received their salaries despite not working. I can reasonably conclude that most, if not all, of those officers, never considered whether their actions were dishonest, as it is practice, albeit an improper practice.
  10. Broad generalisations should be avoided. When determining the issue of an honest claim of right, each case must be decided on their own peculiar set of facts. The accused’s state of mind is decided upon his peculiar circumstances.
  11. Of course, in most cases such conduct outside of proper procurment processes or improper practices provide strong compelling evidence of dishonesty but the question, which is one of fact, is whether the accused possessed a dishonest intent to defraud or whether he honestly believed that he had a claim to the property or money.
  12. Here, the prosecution attempts to prove dishonesty with evidence that the accused prepared the statutory declarations himself. The accused does not deny this. This concession does not exclude the defence of claim of right. There is an explanation and a reasonable one, that the process of transfer followed from the decision of the procurement committee.
  13. To establish dishonesty, the prosecution must first establish that there was no decision made by the District Administration and that that was no Procurement Committee meeting giving effect to the decision.
  14. At this juncture, I again remind myself that the accused has no obligation to exclude the defence which has been properly raised on the evidence. To require him to exclude the defence, would amount to shifting the burden of proof. As said, the evidence presents a viable case of honest claim of right for consideration, which the prosecution bears the legal onus of negativing beyond a reasonable doubt.
  15. To exclude the defence, the prosecution must show:
    1. Significantly, that there was no decision by the District Admiration and there was no procurment committee meeting.
    2. The accused was not entitled to any payments from the Kundiawa-Gembogl District Development Authority.
    3. If he had outstanding claims, then how much?
    4. The value of the motor vehicle was not equivalent to what was owing, or the outstanding amount was less that the value of the motor vehicle.

Was there a procurement meeting?

  1. No principle in law says I must accept or reject all a witnesses' evidence. Instead, I may give varying weights to various parts of the witness evidence and decide to believe none of it, some of it, or all of it: see Pari and Kaupa v The State [1993] PNGLR 173 per Kapi DCJ and State v Namaliu [2020] PGNC 75; N8284 at paragraph 51.
  2. I can accept Alphonse Kawage's testimony about the accused's employment with the Kundiawa District Development Authority and other undisputed matters. However, I proceed with caution when addressing his evidence regarding the procurement meeting or lack thereof. Previous findings have eroded his credibility, and the evidence suggests he could be an accomplice.
  3. I enquired whether Alphonse Kawage could be considered an accomplice. Mr Wanis, representing the accused, submits that he is an accomplice, while Ms Roalakona, representing the prosecution, contends that he is not. However, neither counsel has provided relevant authorities to support their positions.
  4. An accomplice is a person privy to the criminal intent of the accused and can be charged for an offence in relation to the same events as those founding the charge against the accused, whether or not the same offence or not: Japele v State [2023] PGSC 100; SC2454 applying State v Nataemo Wanu [1977] PNGLR 152, Frost CJ and State v Amoko-Amoko [1981] PNGLR 373, Pratt J.
  5. If I were to accept the prosecution evidence, it would point to Alphonse Kawage as the person behind the unauthorised transfer of the vehicle. As the district administrator, the chief executive officer of the Kundiawa District Development Authority, and the chairman of the district procurement committee, he played a pivotal role in circumventing the procurement process. Without his involvement, the transfer would not have occurred.
  6. Alphonse Kawage and the accused could face joint charges not only for misappropriation but also for conspiracy to defraud. It can be concluded that he was complicit in the alleged criminal conduct and is considered an accomplice.
  7. Since he is an accomplice, there must be independent corroboration of his evidence. There is no independent corroboration.
  8. Instead of providing independent evidence, for instance calling other members of the procurement committee, the prosecution has invited me to make a finding that Alphonse Kawage was under duress from the former member when he authorised the transfer. Which would in turn lead to the finding that there was no procurement meeting.
  9. While acknowledging that there is no evidence of the nature of the duress, the prosecution has invited me to take judicial notice of the political climate in the Highlands region and the duress experienced by district administrators there, such as Alphonse Kawage.
  10. In criminal trials, the defence often disputes the facts, unless they are so undisputable or accepted that they do not require proof. Alphonse Kawage was questioned by the prosecutor and his lawyer on the specific nature of the duress. He did not explain. These are clearly matters that are in dispute of which I can not simply take judicial notice. The prosecution's invitation is broad and general; the Highlands region comprises many provinces and districts, each with its political climate. There should have been evidence of the precise nature of the duress. An invitation to take judicial notice cannot cure the failure to do so.
  11. Even if accepted that the former member coerced Alphonse Kawage to sign the transfer papers, the possibility that the current member is now pressuring him to deny the existence of a procurement meeting is open. That has not been excluded. Despite admitting that his actions troubled him, Alphonse Kawage did not report the matter to police, remained silent, and took no action even after the new member took office. This raises the question of whether the former member exerted pressure on him or if the current member is pressuring him to assert that the transfer did not follow the correct process. These matters affect the reliability of Alphonse Kawage's evidence and reenforces the need for independent corroboration.
  12. The arresting officer's statement that there have been no other arrests following the incumbent member’s complaint further undermines the reliability of the prosecution's evidence. He stated that his superiors instructed him to stop all investigations because of an ongoing election petition. They informed him that they could not proceed with the matter because the identities of the complainants, suspects, or witnesses remain unknown until the resolution of the petition.
  13. Without independent evidence, I cannot be satisfied that there was no District decision to award the vehicle and that there was no procurement committee meeting.

Was the accused owed outstanding entitlements?


  1. He explained in his ROI that he was. The prosecution did not provide any credible evidence that he was not.
  2. In its opening the prosecution never alleged that the accused was the manager of Agro Tech Produce Limited and that he used the vehicle for the operations of the company. This evidence was incontrovertible. It is out of this employment that the accused bases his claim of outstanding payments.
  3. It appears from the outset that the prosecution misconceived the accused claim.
  4. The additional evidence exhibited as S6 is from the accused employment as First Secretary to the Minister for Police. It is not relevant. The exhibit reveals that the accused was the personal official staff to the Miniter for Police appointed under Official Personal Staff Act 1980. While his salary is administered by the Department of Personal Management, it is a political position and not a public service position: see s 12 of the Official Personal Staff Act 1980.
  5. The accused makes no claim to allowances under his employment as a First Secretary to the Minister for Police. The claim is for consultancy services rendered to the Kundiawa-Gembogl District Development Authority.
  6. It is undisputed that the accused was employed as a consultant with the district between 2018 and 2020. Because of his background in the development space, he was first engaged by the former member Tobias Kulang as a consultant in the tourism sector. When William Onglo became the new member, he continued to engage him to work in the agriculture sector. In December 2020, when William Onglo was appointed as Minister for Police, he employed him as his First Secretary. In 2022, he left to contest the National General Elections.
  7. What is therefore relevant for the purposes of this proceedings should have been the consultancy agreement or contract under the Kundiawa-Gembol District Development Authority and any documents which would have specified the terms and conditions of the accused consultancy. Since Alphonse Kawage is the Chief Executive Officer, he would have been the relevant person to have produced these documents along with any financial documents outlining how much was the accused to be paid, how much was paid and whether there were outstanding payments. These would have excluded the accused position that he had outstanding allowances owed to him.
  8. However, there has been no credible evidence produced by the prosecution that disproves the accused claim that he is owed money for his term as the Manager for Ago Tech Produce Limited.

Is there evidence of how much is owed?


  1. The accused says K60, 000. As indicated earlier, Alphonse Kawage’s evidence is riddled with ambiguity and although being the Chief Executive Officer provided no documentary evidence to refute the claim.

Is there evidence of the value of the vehicle?

  1. The prosecution tendered a copy of cheque number 323 dated 14 December 2018 exhibited as S1 but made no submissions on whether it was the cheque that was used to purchase the vehicle and how it drew the conclusion that the vehicle was valued at K200, 000.
  2. There is no evidentiary value to this cheque. On the face of the cheque, it can be ascertained that Kundiawa District Finance paid Ela Motors K600,000 for three (3) Toyotas. Since there are no other supporting documents, I do not know the make and modes of vehicles and their individual costs or values.
  3. The prosecution attempted to elicit evidence from Alphonse Kawage on the cheque, however his evidence is hearsay and inadmissible. He became district administrator in 2019, whereas the cheque was for 2018. Before his appointment, Alphonse Kawage was the District Education Officer. He also confirmed that he did not sign the cheque. The district finance officer signed it. Even if I accepted his evidence, his evidence is that the district purchased two ten-seaters and six BT 50s in 2018. The evidence is inconsistent with the cheque and creates more ambiguity than clarity.
  4. The evidence does not prove that BFO 361 was purchased with cheque number 323.
  5. The question now is what was the cost of the vehicle on the date it was purchased? As said, the prosecution has not led evidence or submitted on how it derived the value of K200, 000. There is no evidence to support the allegation that the vehicle BFO 361 was worth K200,000 at the time of purchase.
  6. It appears that K200,000 was derived by dividing K600,000.00 by the number of vehicles purchased with cheque no. 323. If the prosecution claims the vehicle's value is K200,000, it must prove it with credible evidence rather than assumptions.
  7. Additionally, there is no evidence of the vehicle's value at the time of disposal. This evidence is crucial to the prosecution case, because, as previously stated, an inference of dishonesty can be made where a person received excessively more than they are owed. Conversely, receiving property of equal value instead of money implies honesty.
  8. It is necessary for the purposes of the claim to determine the initial use to which the vehicle was applied. Reasonably a land cruiser that is 3 years old that is driven in Port Moresby to commute to and from work will not be worth K60, 000. However, the situation would be different for a vehicle used to carry vegetables in the highlands down to Lae for shipment.
  9. The prosecution provided no evidence of the reason the vehicle was purchased and what use it was put to. Instead, what it attempted as demonstrated in its opening, was to portray the accused as outrightly dishonest and his action as nefarious. It opened its case by alleging that the accused possessed the vehicle immediately after purchase and never once used it to serve the people of Kundiawa-Gembogl.
  10. The preponderance of the evidence which includes the prosecution’s evidence does not support this allegation.
  11. The unchallenged evidence is that the Kundiawa-Gembogl District Development Authority engaged the accused as a consultant. The accused was responsible for the creation and concept behind the district company known as Agro Tech Produce Limited. He worked with donor partners and local communities to establish a profitable agricultural scheme for the benefit of the people. Local farmers formed cooperative societies and collectively provided produce to retailers through Ago Tech Produce Limited, ensuring a sustainable supply to meet demand.
  12. He was the manager of Agro Tech Produce Limited during the relevant period during which he had possession of the vehicle in question. It was accepted that the vehicle was given to the accused to be used for the operations of Agro Tech Produce Limited.
  13. Aside from Agro Tech Produce Limited's operations in Kundiawa-Gembogl, it is not challenged and so I accept that the vehicle as part of the scheme transported fresh produce from Kundiawa-Gembogl to Lae.
  14. The uncontested evidence shows that the accused used the vehicle exclusively for the benefit of the people of Kundiawa-Gembogl District. No evidence from the prosecution contradicts the district company's use of the vehicle for the district's benefit.
  15. Based on the use of the vehicle in the agriculture space and that it transported potatoes and bulb onions with other fresh produce from Kundiawa to Lae, it can be reasonably inferred that the value of the vehicle has significantly depreciated.
  16. The prosecution has not provided evidence which can prove whether direct or circumstantial that the vehicle was worth more than the amount claimed by the accused.


Conclusion


  1. The claim by the accused was that the District Procurement Committee independently awarded him the vehicle. That he was informed of the decision while in Port Moresby. At the time when he was given the vehicle, he was following up on his outstanding claim of K60, 000. When he was awarded the vehicle, he decided to waive or forgo his claim because he considered that the vehicle sufficiently satisfied the claim. This was a legal claim.
  2. The prosecution has not provided credible evidence on the accused consultancy, whether he is owed, and if any, how much has been paid and how much is outstanding. There is no evidence of the value of the vehicle at the time of purchase and at the time of disposal which may have provided circumstantial evidence that the accused was paid more than what he was entitled to.
  3. However, what is far more significant is that the accused claim is that he was awarded the vehicle by a committee with its own processes. He was not aware but was informed of the decision. The prosecution tendered the notice of disposal by the committee. The evidence of there being no procurment meeting came from an accomplice who was responsible for signing all the documents including the notice of disposal. His evidence of duress is equally applicable to being now under duress to say that there was no procurement meeting. There was no independent evidence to corroborate his evidence.
  4. The prosecution has not negated the claim of honest claim of right.
  5. Given that the prosecution has not met its burden to disprove the defence of honest claim of right and it is an exculpatory defence, a verdict of not guilty is returned.

Orders


  1. The Orders of the Court are:

________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Solomon Wanis Lawyers: Lawyers for the Accused

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