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State v Malus [2010] PGDC 32; DC1047 (1 September 2010)

DC1047

PAPUA NEW GUINEA
[In the District Court of Justice sitting in its criminal Jurisdiction]

Cr No, 24 of 2010

BETWEEN

STATE

V

CHRIS MALUS
Defendant

LIHIR: B.TASIKUL
1st September, 2010

CRIMINAL LAW: No case submission- Misappropriation charge s.383 –Criminal Code Act-Prima-facie case ruling-No elements of intention prove-insufficient evidence-

CASES CITED:
State V Wanjil [1997] PNGLR64
State V Kakawi (200) N2229
State V Kindi Lawi [1987] PNGLR183
State V Paul Kundi Rape [1976] PNGLR96
Zanetti V Hill (1962)108CLR291

REFERENCE:
Nil

Appearing for the defendants: Mr. Seth Tanei of Kimbu & Associates Lawyers
Appearing for the Prosecution: Mr. Pare Kulap of Police Legal Section

RULING ON COMMITTAL

1. B.TASIKUL a/PM: The defendant was arrested and charge for one count of dishonestly applied to the use of another person namely Kimbu Lawyers and Associates property namely Nimamar Development Authority cheque number 02457 valued at K100,000.00 belonging to Nimamar Rural Local Level Government.
   
2. The states alleged that the defendant as an assembly clerk of the Tumbawinlam assembly wrote to the financial controller Mr. Depis seeking immediate release of K100, 000.00 to be paid to Kimbu & Associates Lawyers as legal fees for NikapBlock Holders Association. This request was base on an Assembly Resolution 52/2009 passed by the Tumbawinlam Assembly.
   
3. As the matter came before me on committal proceeding I had the opportunity to review the evidence which was tendered by the prosecution in the hand up- brief. As mention on numerous cases the duty of the committal court is to scrutinize the evidence adduced by the state and form a view whether there is enough evidence to commit the defendant to stands trial in the National Court.
   
4. That's now lead me to the question of whether the evidence adduced by the State is sufficient enough for the defendant before me can be lawfully convicted should the matter is allowed to proceed on further?
   
5. To answer that question I would like to adopt the view express by his honor Lenalia J in a case of State V Wanjil[1997]PNGL64 which he adopted in the case of Zanetti V Hill(1962)108CLR 438,
   

The question whether there is a case to answer, arising as it does at the end of the prosecution's evidence in Chief, is simply the question of law whether the defendant could lawfully be convicted on the evidence as it stands - whether that is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred.

6. Indeed it is a question of law and the Court should ask itself base on the evidence before it. Section 383A(1)(a) of the Criminal Code Act reads:
   

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

(a) property belonging to another; or

is guilty of the crime of misappropriation of property

7. According to the evidence adduced by the State the only evidence that connect the defendant to the charge is a letter which he submitted to the Financial Controller Mr.Depis directing him to make payment to the Law firm Kimbu Lawyers. This direction however, was a result of a resolution pass by the Tumbawinlam Assembly. In his letter he cited resolution No52 of 2009 dated 18th September 2009.However, resolution 52 of 2009 did not state anything about payment to Kimbu Lawyers. Resolution 52 reads;
   

That the PEC moved to suspend parts of the standing orders to allow discussion on a policy order submission. Moved: Mr. F.Aron and Seconded Mr. Zikites

8. I will return to this issue later in this judgment.
   
9. For now, I agreed with Mr. Kuiap in his submission who correctly pointed out that the money that was paid out were funds purposely for community and infrastructure development. I also agreed that Nikap Block Owners Association has no bidding agreement with the stake holders such as the State, Lmala, and the New Ireland Provincial Government and off course the Nimamar Rural Local Level Government.
   
10. However, as the counsel properly cited the case of Kindi Lawi V State and the State V Kakawi & ors(2002)unreported National Court Judgment N2229 where his honor Lenalia J alluded as follows:
    

The term "dishonestly" as appearing in s. 383A of the Criminal Code relates to the State of mind of the person who misappropriates, or misapplies whatever property is the subject of the charge under consideration. It is a question of fact for the judge or tribunal to decide upon the evidence being put before it,

11. He further refer to the cases of State V Francis Natuwohala[1994]PNGLR291 in which states;
    

In order for the Court to determine dishonesty, it must look into the mind of the accused person and determine whether given the accused intelligence he would have appreciated if what he was doing was or amounted to dishonesty.

12. Given the evidence now before me, I have to ask myself this question, was the defendant as a clerk of the Tumbawinlam Assembly acted dishonestly in submitting a request to the Financial Controller Mr. Depis to obtain funds for legal cost to Nakap Block Owners Association when he knew that resolution 52 of 2009 by the Tumbawinlam Assembly did not specified for such payment.
    
13. To answer that question I have extensively explore all the evidence before me and there is no evidence of complicity by the defendant. Whether or not he had the intention is a question of law. The court cannot infer in this circumstance without any further relevant evidence. One of essential element of misappropriation is the element of dishonesty. In applying the test in the various cases I have cited above I am of the view that the evidence now before me is not sufficient enough to commit the defendant to stands trial.
    
14. I therefore apply the principle in the State V Paul K.Rape and discharge the defendant forthwith. I further order that his bail money be refunded.