Maela v Yahamani [2010] PGDC 28; DC1038 (8 April 2010)

1038

PAPUA NEW GUINEA
[IN THE CRIMINAL SITTING OF DISTRICT COURT OF JUSTICE]
Com 176, 177 & 178 of 2009

BETWEEN

Nicholas Maela
Informant

AND

Haru Yahamani
Defendant

WEWAK: D. SUSAME

2009 : 30th November, 14th, 28th December,
2010 : 25th January, 15th February, 15th March

CRIMINAL LAW – Committal Proceeding its process and nature-Offences of official Corruption and abuse of office, ss. 87, 92 Criminal Code

Cases Cited
Backley Yarume v Sylvester Euga (1996) unreported N1476
Wayne Tkatchenko v Daisy Magaru (200) unreported N1956

References

Counsel
Namtane, Police Prosecutor
Defendant representing himself

08th April 2010

RULING

Susame; - The defendant is in court charged with three charges for offences of official corruption and abuse of office under sections 87 and 92 of the Criminal Code respectively. The charges emanate from the same set of facts which are succinctly set out in the police statement of facts.

2. Concerns were raised that there was maladministration, corruption and misappropriation of public funds within the East Sepik Provincial Administration. A complaint was then lodged with the National Fraud and Anti Corruption Directorate and a team of investigators from the Fraud & Anti Corruption unit and offices of Auditor General and Provincial Affairs were sanctioned and conducted investigations. The charges are the result of the investigation and recommendations made by the investigative team.

3. It is alleged by the Police Informant or the Arresting Officer that between 15th and 29th March 2005 the defendant while employed as the Provincial Treasurer of East Sepik Province did corruptly and in the abuse of his office without the approval of the Provincial Supply and Tenders Board (PSTB) facilitated payments of the sums of K17, 469.00 and K136, 826.56 (totalling K156, 295.56) from the Sepik Highway Roads and Bridges Trust Account to Baimusu Construction Limited, a company in which he, his wife and a Joshua Fimbore are registered shareholders.

SUBMISSIONS

4. The defendant has compiled a submission in which he attempted to introduce some documentary evidence in his defence and to persuade this committal court to dismiss the charges. The defendant had in his submission given an explanation to justify his actions. Basically, he argues what his actions were not criminal and done in good faith as he was pressed against time for immediate implementation of several electoral projects under the District Treasury Rollout Program which were to be completed for opening on 22 May 2005 deadline. At the time the project was awarded to Baimusu Construction Ltd he and his had ceased to be Directors and Shareholders of the company. It was therefore not wrong for the funds to be paid to Baimusu Construction Ltd in the circumstances. No submission in rebuttal was received from the police prosecutor.

COMMITTAL PROCEEDINGS

5. Committal proceeding is more or less a process in which serious indictable offences which are vested in the jurisdiction of the National Court are filtered before they are remitted for trial proper. The process allows the Magistrate to assess the strength of the charges and that weak or misconceived cases are not unnecessarily sent to the National Court. The primary objective of the committal court is therefore to consider whether evidence contained in the police hand up brief establishes a prima facie case to justify a trial proper in the National Court. There is no consideration of evidence for the defendant or his defence. At this forum there is no determination of criminal liability. Rather it is a forum intended to facilitate that very purpose in the National Court.(see Backley Yarume v Sylvester Euga (1996) unreported N1476 , Wayne Tkatchenko v Daisy Magaru (200) unreported N1956

EVIDENCE

6. The Senior Auditor of Audit and Inspection Branch of Provincial Affairs and attached to the National Anti Corruption Agency (NACA) has also provided valuable background information in his brief which forms part of the evidence for the State.

7. Thorough reading of the police hand up brief establishes these facts. The National Government through the Department of Finance had allocated K1.2 million to East Sepik Province to carry out and implement the District Treasury Rollout Program (DTRP) which came into effect by NEC Decision No. 186 of 2003 and commenced rolling out to Provinces in 2004.

8. K1.2 million was paid into Sepik Highway Trust Account through the Provincial Government’s Accounting System as the best option undertaken by the East Sepik Provincial Administration for prudent management of public funds and transparent implementation of the DTRP initiated by the National Government.

9. The procurement of goods and services for implementation of DTRP was to be consistent with the Public Finances (Management) Act 1995 and established guidelines set out in the Finance Management Manual.

10. The defendant at the material time the alleged offences were committed was the Provincial Treasurer of East Sepik Province. It was his role as Chairman of Authority to Pre Commit Committee (ACP) to deliberate on expenditures while the Provincial Administrator had delegated authority to approve ACP deliberations. A submission is then made to the Provincial Supply and Tenders Board (PSTB) for final approval.

11. The payment to suppliers of goods and services can only be effected when all procurement and procedural requirements have been certified and approved. No payments are to be made until services have been rendered. It is the duty of the Provincial Treasurer to ensure that all payments for goods and services are made directly to the suppliers and not to third parties.

12. It is clear from the evidence that two separate cheques were drawn and made payable to Baimusu Construction Ltd. on two different dates. One cheque No. 124485 was drawn on 16th March 2005 for an amount of K17 469.00. The second cheque No. 127457 dated 29th March 2005 was for an amount of K136, 826.56. The provisions of DTRP guidelines stipulated that a Provincial Treasurer has authority to approve payments of up to only K10, 000.00. The defendant who was then the Provincial Treasurer had approved those payments which amounts were far and above his delegated authority to approve.

13. It is also clear from the evidence that the PSTB in their deliberations to implement the DTRP at no time had discussions about Baimusu Construction Ltd for major renovation and maintenance of government buildings at Pagwi Station. As a matter of fact the PSTB in its deliberations had awarded the contract to Niugini Builders, Simi Building Contractors and Singut & Sons who had bid for the contract. There was no decision by the PSTB in awarding the contract to Baimusu Construction Ltd. The defendant had in his submission argued that Baimusu Construction Ltd had bid for the contract and PSTB in its deliberation had awarded the contract to the company. Whether that is true is an issue to be decided at the trial.

14. Baimusu Construction Ltd was registered and incorporated on 17th January 2005. At the time of incorporation the defendant, his wife and a Joshua Fimbore were registered shareholders and directors of the company. The company had since 30th May 2008 ceased operations. The defendant argued as of 25th February 2005 he and his wife had ceased to be shareholders and directors of the company. Again that is another issue for deliberation at the trial proper.

15. This is a case of public gravity. The case involves alleged breach of established financial guidelines and laws by persons of authority in public offices and alleged breach of proper legal and administrative process of awarding of contracts. There are also questions regarding defendant’s failure to declare his interest in the company which he was one of the directors and shareholders when he was the then Provincial Treasurer and member of PSTB to avoid conflict of interest situation. This court is of the opinion that these are but some of the essential and pertinent questions to be properly and fully tried in the National Court of Justice of PNG. It is therefore for the interest of the People of East Sepik Province and the country as a whole the case is remitted to the National Court.

16. Accordingly, defendant is committed to face trial in the National Court sitting in Wewak ESP on a date to be later fixed by the trial judge on circuit. The court extends the defendant’s cash bail. Court imposes an additional condition that the defendant shall report and sign at Wewak Hill Court Registry on first Monday of each month. His other bail condition previously imposed remains unaltered.