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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]
COM 273 & 275 of 2011
BETWEEN
Police
Informant
AND
Christopher Hulape
Defendant
Kokopo: SLavutul
2011: 09th, 23rd, 28th, 29th June, 08th, August, 15th, 27th September, 06th, 13th, 24th October.
CRIMINAL PROCEDURE AND PRACTICE- Committal Process – Ruling on Sufficiency or Insufficiency of Evidence- One Count of Conspiracy To Defraud and One Count of Dishonest Application of Monies To Own Use.
Cases Cited
References
District Court Act
Criminal Code
Counsel
Mrs Elizabeth Munap, for the Informant
Mr Paul Yange, for the Defendant
RULING ON SUFFICIENCY OF EVIDENCE
22nd May 2014
SLavutul: The defendant was charged under the Criminal Code Act with the following counts;
Facts
2. The defendant was a former employee of the Department of National Planning and Monitoring from 2005 to 2010 as the project officer for the then Minister for National Planning Mr Paul Tienstein. The defendant is Christopher Hulape, 34 years old from Vailala Hiloi village, Kikori, Gulf Province. He is the Managing Director of Torch Bearer Productions Limited.
3. It was alleged that around the 23rd of February 2011, one million and six hundred thousand kina (K1.6 million) was paid to the accused’s wife’s (Mrs Agnes Frank Hulape) business namely, Torch Bearer Productions.
4. As per the Department of National Planning and Monitoring payment voucher- Requisition for Expenditure (FF3), General Expense Form 4) and the cheque Remittance, K1.6 million was paid to Torch Bearer Productions for the following;
5. The payment was released by the Department of National Planning & Monitoring by way of Cheque No. 00036, dated 23rd February 2011. Around the 23rd of March 2011, the accused’s wife (Mrs Agnes Frank Hulape) deposited the cheque payment into her business operating cheque account number 1001560631 held with Bank South Pacific, Port Moresby Branch.
6. It is alleged on the 17th of May 2011, the accused’s wife (Mrs Agnes Frank Hulape) ceased/deregistered her company namely Torch Bearer Productions (IPA Company # 1-78822) with IPA. It is alleged in the new company Torch Bearer Productions Limited, the accused Christopher Hulape became the Company Director whilst his wife Agnes Hulape became the shareholder.
7. The accused and his wife did not open a new account for Torch Bearer Productions Limited’s operation but kept on using the accused’s wife ceased business bank account, where the wife remained the signatory to the account to date. According to the company extracts obtained from the IPA, the accused’s wife now ceased business namely (Torch Bearer Productions) was registered as a Media Production entity involving graphic Artwork, Printing & Video. It was a Media Production business and only restricted to these activities.
8. Police investigations revealed that the accused and wife did not spend the K1.6 million from the Department of National Planning & Monitoring around the 23rd of February 2011 on the specific purposes namely;
9. After depositing the money into the accused’s wife’s business operating account, the accused and his wife made withdrawals and used up the money on and for unrelated purposes.
10. According to IPA records, Torch Bearer Productions being ceased at IPA, the accused kept on withdrawing and using the funds for the projects on other purposes under the new business named Torch Bearer Productions Limited. The accused is the director and wife as the shareholder of this new company.
11. During police interview with the accused, he claimed that his wife employed him to formulate the project submissions to the Kiriwina Goodenough District Administration on behalf of her now ceased business entity.
12. The accused also claimed that his new company namely Torch Bearer Productions Limited of which he is the director and his wife as the shareholder is now involved in implementing the projects. Its new company is now in the mobilization stage and has also sub-contracted to Zelallis Waterfalls Limited to carry out the projects.
13. The accused’s company Torch Bearer Production Limited was not the company that was awarded the projects in Kiriwina Goodenough District of Milne Bay Province. It was his wife’s now ceased business entity Torch Bearer Productions that was awarded the projects.
14. Police Investigation team visited the project sites in Kiriwina Goodenough District, Milne Bay Province around September- October 2011 and discovered that no such projects have started in the district involving Mrs Agnes Frank Hulape’s business entity Torch Bearer Productions or the accused’s company Torch Bearer Productions Limited.
15. The accused was arrested and charged accordingly.
Witnesses and Exhibits
16. The state would be relying on the statements of the following witnesses and exhibits as per listed on the police Hand up Brief;
The functions of the Committal Court
17. Firstly, the Committal Court has a quasi- judicial function and that is to examine the Police Hand up Briefs so as to determine whether the evidence contained therein is sufficient to warrant commitment of a defendant(s) to stand trial in the National Court.
18. The examination referred to herein is not equivalent to considering evidence as in a “No case to answer submission” as in the cases of The State v Paul Kundi Rape [1976] PNGLR 96 and The State v Roka Pep [1983] PNGLR 19.
19. In the matter of Backley Yarume –v- Sylvester Euga, Paul Akuram. AJ as he was then; sets out the functions of the committal court in the following; 1. The Committal hearing is only an inquiry and whether the findings of a magistrate is against the weight of the evidence is not an important aspect. That is a matter to be decided in the trial proper at the National Court.
2. The purpose of Committal hearing is to gather evidence and assess them to see whether the evidence is sufficient to commit the accused for trial or sentence in the National Court. This requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence are present before he can commit the accused. Sections 94B, 94C, 95 and 100 of the District Court’s Act, Ch 40 to be read together.
3. Decision to indict by the Public Prosecutor after Committal hearing should not be interfered with by the Courts. That is the duty
and function of the Public Prosecutor”
20. I agree with counsel; “ it is trite law in criminal cases that all elements of a charge must be met by the evidence adduced by prosecution as observed
and affirmed in the following matters; The State v John Bill White (No.1) [1996] PNGLR 262, The State v Melchior Ibor (2005) N2896 and The State v John Kule (2009) N3619”.
21. I also agree “the process here is much to do with ensuring that the evidence contained in the hand-up brief is sufficient to at least touch on each of the elements of the offence (s) charged as pleaded in the Information (s) laid against a defendant (s). And moreover, to ensure that the requirements set out under Part VI of the District Courts Act is met”.
22. I further agreed with counsel in that; “The duty of the court here (which parties are obliged to assist the court in) is to ascertain whether the evidence/statements/ materials contained in the police hand-up brief filed herein has met all of the elements of the offence (s) or if the mandatory requirements under Section 94 of the District Courts Act has been met”.
23. In addition; Similarly I agree with prosecution in that Section 95 of the District Courts Act provides the function of the court and excludes the determination of innocence or guilt and the committal process does not deny the defendant from his constitutional rights as in Liri v State (2006), N3110 [17/11/06]. In which His Honour, Lay J held that;
“Nothing is finally decided by the committal proceedings. The applicant’s constitutional rights will be protected on trial from any deficiency in the evidence”
24. Moreover, I further agree with prosecution’s submission in that; “The standard of proof in a committal proceeding is one that the court has only to form a bona fide opinion as the view in the case of Regina v McEachern (1967-68) PNGLR 48; which stresses;
“To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the defendant on trial...The court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant”
25. The measure of bona fide standard is less than the trial standard which is a standard of proof beyond reasonable doubt.
Issue
26. The only issue here is whether there is sufficient evidence which would support all the elements of both charges and would warrant the court to commit the Defendant to the National Court?
Analysis of the Evidence
27. First a Record of Interview was conducted between the defendant and Police Investigator Sergeant Elijah Aron on the 29th of October 2011 corroborated by Senior Constable Johnny Korong, who was present throughout the ROI. I sight the signatures of the Investigator, Corroborator and Defendant in the ROI. I therefore conclude the defendant have read and understood the content, nature and implications on the ROI.
28. I note after the second opening question, Q2, in the Record of Interview the Defendant understood the purposes and reasons for the interview after the question was put to him.
29. At Q.08 of the ROI he answered he is self-employed and now the Managing Director of Torch Bearer Productions Limited.
30. I will analyse the evidence tendered by prosecution in the Hand –Up Briefs in which counsel for the defendant have had the opportunity to digest.
31. In relation to both charges there is no contention by defence in relation to the evidence in support of where the offences were committed. It is clearly stated in the evidence the offences were committed in Port Moresby in the National Capital District. There is evidence to show the Torch Bearer Productions Limited and its Director Christopher Hulape operated business out of Port Moresby.
32. The evidence sufficiently and clearly identifies the accused person as Christopher Hulape, aged 34 years old of Vailala Hiloi village in the Kikori area of the Gulf Province. There is also evidence to demonstrate the accused was formerly employed as the Project Officer to the than Minister for National Planning Mr Paul Tiensten between 2005 to 2010. There is also evidence to show that the accused is the Director of Torch Bearer Productions Limited and the husband of one Mrs. Agnes Frank Hulape.
33. The statements of Mr. Sialis Taman who is employed by the Investment Promotion Authority (IPA) at its Konedobu office as a Client Relations Officer reveals Torch Bearer Production is owned by Agnes Frank. He also reveals that Torch Bearer Production ceased operations on the 17th May 2011 and Torch Bearer Productions Limited was registered on the same day the 17th of May 2011. It is also revealed Christopher Hulape is now Company Director whilst his wife Agnes Frank Hulape is a Shareholder to the said Torch Bearer Productions Limited. There are supporting IPA documents included for verification as Exhibits on foot.
34. The statements before the court suggests Christopher Hulape and his wife and now co-accused Mrs Agnes Frank Hulape by their actions had conspired in de-registering Mrs Hulape’s business entity to wit Torch Bearer Productions and immediately incorporating Torch Bearer Productions Limited without having its own bank operating account and were drawing monies from the said Torch Bearer Productions Account after the sum of K1.6 million was deposited into the account for unrelated purposes.
35. Briefly, statement by Mr. Archie Mai, the Assistant Director Finance & Administration with the Department of Provincial and Local Level Government Affairs in Port Moresby, National Capital District, in his investigations he confirmed the payment of K1.6 million was released purposely to fund two (2) projects in Kiriwina Goodenough Electorate of the Milne Bay Province. The payment was made to Torch Bearer Production in order for implementation of the two (2) projects which were made through the Department of National Planning & Monitoring bearing the Cheque Number. 000036 dated the 23rd of February 2011.
36. Mr. Mai specified in his statement according to the payment vouchers the funds were to be used a follows;
37. Mr. Mai added he also submitted two (2) Audit findings regarding the K1.6 million in cheque payment to Torch Bearer Productions as part of his evidence which are marked and labelled E1a and E1b
38. In addition, Honourable Jack Cameron the Open Member for Kiriwina Goodenough shows in his statement he was the genuine applicant for the two (2) projects on behalf of his people. He also confirmed K1.6 million was paid to Torch Bearer Productions for his two (2) proposed projects.
39. Honourable Jack Cameron’s statement shows the initial project proposal submission for three (3) District Markets was submitted to the Secretary National Planning & Monitoring dated the 19th of November 2009. He claims in his total submission a sum of K259, 000.00 was proposed as an estimate cost to build three (3) markets. He added each market was to be built at a cost of K89, 000.00 and a copy of the submission is attached as proof. He further stated the second submission was resubmitted to the Secretary of National Planning and Monitoring dated 11th of May 2010 after evaluation on cost with their service providers in the Milne Bay Province.
40. He stated in the second submission the total cost of the project was estimated at K441, 000.00 to build the three (3) market buildings in three (3) different locations in the District. Each market was estimated to cost K147, 000.00 and a copy of the submission is attached as proof. He added he denied any acknowledgement from the Secretary National Planning and Monitoring for receipt or comments on the evaluation on the proposal.
41. Honourable Jack Cameron further stated in his statement he was given a verbal proposal by Mr. Chris Hulape of Torch Bearer Productions, a consulting firm to assist with the documentation of the proposal for the market. And he added a Letter of Engagement was established to provide project documentation, implementation, supervision and reporting.
42. Honourable Jack Cameron revealed the submission made by the Consultant- Torch Bearer Productions dated 10th February 2010 to the Minister for National Planning & Development. He claimed he was never given the proposal for sighting or for evaluation. He added he later learnt that the monies for the market had been paid out to Torch Bearer Productions. He claims after the monies were paid out communication was difficult to establish between his office and the Consultant in pursuance on the implementation. His statement reveals the three (3) markets remains unimplemented.
43. Honourable Jack Cameron further reveals on the 29th of August 2011 himself and Administration issued a Termination of Engagement Notice to Torch Bearer Production for non-implementation of the project and for the funds to be directed to the District Treasury for the projects to be procured under the system, a copy of the notice is attached as evidence.
44. In relation to Project Proposal No.2 for the Kumwagea Community Resource & Learning Centre, Honourable Cameron’s statement shows, the concept and proposal documentation was done by consultant Zenalis Waterfalls Limited with the community of Kumwagea village on Kitava Island in the Kiriwina Goodenough District. Honourable Cameron revealed the Proposal was supported by his office for submission to the Minister for his consideration.
45. I have given careful consideration and accept as sufficient the statements made by the following witnesses who are leaders and government officers from the Kiriwina –Goodenough District of the Milne Bay Province. They all stated in summary to date there are no District Markets including the Resource Centre being built by the Defendant and the Torch Bearer Productions. They are as follows;
46. I have also given careful consideration and accept as sufficient the statements of the following witnesses;
Further, Mr. Woiwoi’s statement disclosed a copy of the BSP Deposit Voucher indicating the deposit of K1, 600,000.00 (K1.6 million) into the Torch Bearer Productions Cheque Account No. 1001560631 dated the 23rd of March 2011. Thereafter monies to the total sum of K505, 979.71 were drawn against the Torch Bearer Productions Account between the 08th of April 2011 and the 24th of June 2011 by the Defendant with the authority of Mrs. Angnes Frank Hulape. Mr. Woiwoi’s statement reveals Mrs. Agnes Frank Hulape is the Managing Director of Torch Bearer Productions and she is the sole signatory to the Business Account. This was also confirmed by the Defendant in his Record of Interview that he was not a signatory to the Torch Bearer Productions Account except his wife.
Mr. Woiwoi’s statement shows as per the Current Account Enquiry (Basic Account Data) dated the 13/10/2011; the available balance remaining in the Torch Bearer Production Account was K3, 014.39
Budget Rent A Car, c/- PO.Box 1259, Boroko, NCD in her statement released information to Investigator Detective Inspector Gitua that on the 10th of May 2011 they received K10, 000.00 in the form of a BSP Bank Cheque No: 756553 dated the 10th of May 2011 for the hire of vehicles both in Port Moresby and Rabaul. Then another payment to the sum of K10, 000.00 was made on the 27th of May 2011 by Cheque No: 840065 dated 27th of May 2011 as payment for vehicle hire both in Port Moresby and Rabaul, and these payments were received from Torch Bearer Productions.
47. On the contrary, Defence in its submission at page 7 paragraph 23 agreed “that the statements of all witnesses have complied with Section 94 (1A) of the District Courts Act (with regard to the need to warn themselves of the facts they deposed in their statements) and therefore their statements can be considered as proper statements to form part of Police evidence for the purposes of considering the sufficiency of evidence by the court”.
48. At paragraph 24 (1) (e) defence argued much of witness Archie Mai’s statement in his report were hearsay of the events which transpired, despite such argument I will accept it as sufficient on the face of it and defence will be given the opportunity at trial to rebut the evidence should the matter go before the National Court.
49. At paragraph 24 (9) Defence raised the issue with the none annexure of a copy of the Search Warrant registered as No: 401/2011 referred to in Mr. Ronnie Woiwoi’s statement despite such argument I will accept its sufficiency on the face of the statement and it is up to defence to raise its illegality should the matter goes before the National court.
50. Defence’s argument of Torch Bearer Productions Account having other sources of income being paid into it apart from the K1.6 million in my view would be an appropriate defence and evidence which may work in favour of the Defendant against both charges. Further arguments by defence that “the Investigation Team’s omission of some materials and documents including copies of cheques which were paid to service providers were deliberate is in itself is a valid defence as oppose to prosecution’s evidence which have yet to be tested.
51. In its Supplementary Submission defence raised the issue over ownership of the monies whether the monies are owned by the state or by the Department of National Planning and Monitoring in my view is a question of law which could be appropriately argued before the National Court at trial.
52. I have given careful consideration to the defendant’s Supplementary Submission and I am of the view what the defendant has raised in its totality would appropriately assist him in his defence against both charges before the National Court.
53. I also wish to reaffirm that “Section 95 of the District Courts Act provides the function of the court and excludes the determination of innocence or guilt and the committal process does not deny the defendant from his constitutional rights as in Liri v State (2006), N3110 [17/11/06]”. In which His Honour, Lay J held that;
“Nothing is finally decided by the committal proceedings. The applicant’s constitutional rights will be protected on trial from any deficiency in the evidence”
Ruling
54. Therefore having considered the evidence and respective submissions before me, I am satisfied there is sufficient evidence which will warrant me to commit the Defendant Christopher Hulape to the National for trial at a later date.
Court Order
......................
Prosecution appeared for by Sgt Elizabeth Munap of Kokopo Police Station
Defendant appeared for by Mr. Paul Yange of Warner Shand Lawyers, Kokopo Branch
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