Police v O'Niel [2020] PGDC 42; DC5030 (1 December 2020)

DC5030

PAPUA NEW GUINEA

[IN THE WAIGANI DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITAL JURISDICTION]

Committal Nos. 629-630 and 1003 of 2019

BETWEEN

POLICE
Informant

AND

PETER PAIRE O’NIEL

Defendant

Port Moresby: T. Ganaii
2020: 01^st December

COMMITTAL PROCEEDINGS – Charge – One count of Official Corruption under 87 (1) (b) - One count of Misappropriation under section 383A (1) (a) - One count of Conspiracy under section 407 (1) (b) of the CCA –Legal requirements for prima facie case - Presence of all of the elements of the charges –

COMMITAL PROVEEDINGS – On assessment of the evidence – Evidence is sufficient to commit the defendant to stand trial in the National Court One count of Official Corruption under 87 (1) (b) and one count of Misappropriation under section 383A (1) (a) CCA – Evidence is insufficient to commit to trial on charge of Conspiracy under section 407 (1) (b) of the CCA

Cases cited
Akia v Francis PGNC, 355, N6555
Lawi v The State [1987] PNGLR 183.
Maladina v Principle District Magistrate [2004] (25/06/04) Injia DCJ
Paul Tiensten v St, SC 1468
Regina vs. McEachern [1967-68] PNGLR 48
State v Francis Natuwohala Laumadava [1994] PNGLR 291 at 293
State v Hevelava (No 1) [2017] PGNC, 197, N6815 (7^th July 2017) Salika DCJ
Sate v Iori Veraga [2005] PNGLR 332, (2^nd June 2004)
State v. Kai Wabu [1994] PNGLR 498, N1227
St v Mollo [1988] PNGLR 49
St v Paul Tiensten, 2014, N5563
State v. Toamara (1988-1989] PNGLR 253
Yarume v Euga [1996] PGNC 24

Text
Oxford Advanced Learners Dictionary of Current English

Overseas Cases
R v Gosh [1982] Cr R 154
Siracusa (1990) 90 Cr App R 340

Legislation
Criminal Code Act, (and Sexual Offences and Crimes against Children Act) Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor, Snr Sergeant John Wamugl For the Informant
Mr. G. Sheppard assisted by P Tabuchi, Young & Williams Lawyers For the Defendant

RULING on SUFFICIENCY of EVIDENCE

01^st December, 2020
Introduction

Ganaii, M. At the outset the Court grants the prosecution application to amend the provision relating to charge of Official Corruption from 87 (1) (a) to 87 (1) (b) under s 32 of the DCA. This is based on the reasoning that this is not a major amendment so that the defence case is prejudiced.
2. This is a ruling on whether there is a prima facie case made out within the meaning of s.95 (1) of the District Courts Act (DCA), after the receipt of all the evidence offered by the police prosecution in the form of the Police Hand-up Brief (PHUB). The court is tasked to determine whether on the evidence as it stands at this stage of the proceedings, there is a prima facie case sufficient to commit the defendant to stand trial in the National Court.

Charge(s)
3. The defendant is charged with the following three charges: one count of Official Corruption under section 87 (1) (b); one count of Misappropriation under section 383A (1) (a) and one count of Conspiracy under section 407 (1) (b) of the CCA respectively. The charges read as follows:

1. Official Corruption – s 87 (1) (b) (as amended)
   

..being the holder of public office namely a member of Parliament for Ialibu Pangia Electorate and was the PM of PNG charged with the performance of his duty by virtue of that office did non the 04^th of December 2013 corruptly and unlawfully directed procurement of K50 m of public funds belonging to the Independent State of PNG that was paid on the 18/12/13 to the benefit of a Foreign Israeli LR Group Limited purported procurement and installation of two Diesel Turbine generators.

2. Misappropriation - s 383A (1) (a)
   

.. ..being the holder of public office namely a member of Parliament for Ialibu Pangia Electorate and was the PM of PNG dishonestly applied to the use of another person namely LR Group Ltd of Israel property namely K50 m belonging to the Independent State of PNG

3. Conspiracy – s 407 (1) (b)
   

Did conspire with Mr. Dairi Vele the acting Secretary of Treasury and others by fraudulently processing and facilitating an illegal payment of K50 m for 2 x diesel turbine generators for PNG Power Ltd without following lawful procurement processes as required under the PFMA

Statement of Facts
4. As adopted form the PHUB pages no 6-7, the Police allege that on the 04^th of December 2013 the defendant Mr. Peter Paire O’Niel, member of Parliament representing Ialibu/Pangia Electorate, at the time of the commission of the alleged offence was the Prime Minister of PNG.

Police say the defendant procured Fifty Million Kina (K50 m) from the Department of Treasury and paid to an Israel Company styled as LR Group Ltd. Investigations revealed the following:

- In a letter dated 04^th December 2013, the defendant, then as the Prime Minister directed the Acting Secretary for the Department of Treasury Mr. Dairi Vele to release K50 m for the purchase of two diesel turbo generators. Police say the subject of purchase of the generators was previously discussed by the defendant and Mr. Dairi Vele

- Enquiries conducted at PNG Power Ltd (PPL) revealed that PPL was not initially involved in the plan to procure and purchase the generators

- Investigations also revealed that the procurement of the two diesel turbo generators did not go through the normal government procurement process by way of the Central Supplies and Tenders Board (CSTB) and the office of the State Solicitor did not give any legal clearance for the procurement of the two generators

- According to the PFMA, the procurement of Goods and Services over K10 m will have to be referred to the NEC for approval and then referred to the Governor General for his blessing (signature) before the contract can be executed and

- The payment of the K50 m was made prior to the certification of the Appropriation Act for 2013 budget.

5. Based on the above, Police say that the actions of the accused as the Prime Minister, holding the highest public office and in the specific circumstances in applying K50 m to the use of LR Group amounted to Official Corruption. By directing the payment of the sum of K50 m to LR Group where the supplementary budget from the 2013 budget was not certified amounts to misappropriation. The contents of the letter showing prior discussions amounts to conspiracy.
   

Issue
6. The issue is whether a prima facie case is made out. This requires the court to determine whether the evidence received from the PHUB is sufficient to warrant the committal of Mr. Peter O'niel to the National Court for trial on all the charges.

7. The sub-issue is whether there is sufficient prima facie evidence on each of the elements of the offences Official Corruption under section 87 (1) (b); Misappropriation under section 383A (1) (a) and Conspiracy under section 407 (1) (b) of the CCA respectively?

8. A proper and reasonable assessment involves the Court to make an assessment under s 94C of the DCA and to make an assessment on all the established elements of the charges.

The Law:

The Law on Committal Proceedings

9. Part VI of the DCA provides the legal basis for committal proceedings specifically under sections 94 -100 of the DCA.

10. The Committal process whilst it requires the court to make a finding on the evidence presented by the police, this process is administrative in nature in that the court need only to form a view that there is a bona fide prima facie case against the defendant as per the case law of Akia v. Francis PGNC 335, N6555 and R v Mc Eachern [1967-68] PNGLR 48

11. In the matter of Maladina v Principle District Magistrate¹ Injia DCJ (as he then was) expressed his opinion that the Committal process involves two phases: the first is when the Magistrate "receives" or "hears" evidence offered by the prosecution only, considers the evidence, and decides whether the evidence "is sufficient to put the defendant on trial." If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information. That is the end of the matter. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under s.96.

12. Phase two is the examination of the defendant by the Magistrate under s.96. The prescribed wording of s.96 statement, which the Magistrate puts to the defendant, is part of that provision. The statement implies that the defendant has "heard" the evidence for the prosecution, which the Magistrate has considered, and made his decision under s.95. The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to.

13. Furthermore, in the case of Yarume v Euga [1996] PGNC 24, N1476 the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to seeing whether all the elements or ingredients of the offence is present before the defendant can be committed, sections 94B, 94C, 95 and 100 to be read together.

The Law on the Offending Provisions:

14. The law on the offending provisions read:

87. Official corruption.

(1) A person who—

(a) being—

(i) employed in the Public Service, or the holder of any public office; and

(ii) charged with the performance of any duty by virtue of that employment or office, (not being a duty touching the administration of justice),

corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of any thing done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

(2) A person shall not be arrested without warrant for an offence against Subsection (1)

(2) . . .

383A. Misappropriation of property.

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

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

407. CONSPIRACY TO DEFRAUD

(1) A person who conspires with another person—

(a) by deceit or any fraudulent means to affect the market price of any thing publicly sold; or

(b) to defraud the public, or any person (whether or not a particular person); or

(c) to extort property from any person,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

Elements of the Offence/Case law

Official Corruption

15. In the case of The State v. Toamara (1988-1989] PNGLR 253, where the defendant was charged with the equivalent of s 87 Official Corruption in the old Code, the court expressed that “corruptly’ also means ‘dishonestly.’
    
16. According to section 87 wording of the charge, the following are the elements:
    1. Date, Place, Accused
    2. Corruptly
    100. 1. Give to

2. confer on

3. Procure for

4. promise to give to

5. Offer to give to

6. procure for or

7. attempt to procure for

4. Another person
   1. Property
   2. Benefit
      
5. On account of an
   1. Act
   2. Omission
      
6. On The part of the person

1. In the public service
2. Holding a public office
   
3. In reading the wording of the charge, the Police say the Defendant corruptly procured for another person property on account of an act or an omission on the part of the defendant in the public service and holding a public office.
   

Elements of Misappropriation

17. The elements of Section 383A Misappropriation are;

(a) dishonesty;

(b) application of the said property to own use or that of another; and

(c) property belonging to another: Lawi v The State [1987] PNGLR 183.

18. Dishonesty is a question of fact and would depend on the status of mind of the accused. “And when a Judge considers the facts on how the property was applied, he uses the ‘ordinary’ standards of reasonable and honest people’ test to determine whether or not the property so applied...Dishonest is defined in the Oxford Advanced Learners Dictionary of Current English as, “intended to cheat, deceive or mislead, The State v Francis Natuwohala Laumadava [1994] PNGLR 291 at 293.”

Elements of the offence of Conspiracy to Defraud:

19. The case law of State v Hevelava (No 1) [2017] PGNC, 197, N6815 (7^th July 2017) Salika DCJ held the following to be the elements of the offence of Conspiracy to Defraud:

a. Identification of the defendant;

b. on a date and at a place

c. Defendant conspired with another and

d. To defraud that other person

20. In the same case, the court made reference to the definition of Conspiracy to be “secret plan by a group of people to do something harmful or illegal (Oxford Lerner’s Dictionary, New 8^th edn. On the issue of meeting of persons and hatching of a secret plan, the court found that although there was no direct evidence, the court can draw inferences and make findings based on circumstantial evidence on facts surrounding the commission of the alleged offence.

21. In the case of Sate v Iori Veraga [2005] PNGLR 332, (2^nd June 2004) the court held that

- the offence is complete when an agreement is made;
- that agreement must involve two or more persons;
- to prove the existence of an agreement, the prosecution must show physical actions of the conspirators forming the agreement and that these acts are from relevant facts of the case.

22. The men’s rea for the offence of conspiracy is that anything less than the intent to perform an unlawful act will be insufficient. Thus recklessness is not a ground for criminal liability.

23. The case of Siracusa (1990) 90 Cr App R 340, the court held that the prosecution must prove an intent to perform an unlawful act and an intent to agree with one or more members of the group.

Evidence In Written Statement

24. Section 94C requirements in the committal process must be fulfilled and is in the following terms:

94C. REGARD TO EVIDENCE, ETC.

(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to–

(a) the evidence contained in a written statement; and
(b) documents and exhibits,

of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

25. The case precedent on this principle of law in relation to written statements is in the case of The State v. Kai Wabu [1994] PNGLR 498, N1227. In Kai Wabu (supra) the court held that the combined effect of ss 94 (1A) and 94C (2) of the District Courts Act is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing. This requirement is mandatory and requires strict compliance. This enquiry is an independent one, which the Court must conduct in the exercise of its judicial function. The court further stated that after having conducted the enquiry, the Court has discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and record its findings. A failure to conduct such enquiry and record its finding may result in voiding the committal.

THE POLICE CASE

26. The Police case comprises of 22 witness statements and attaching to them documentary evidence. A short and brief summary of the content of their statements and attachments is as follows:

1. Belden Norman Nama – MP – The main complainant. Opposition Leader. Said the K50 paid was not disclosed in Parliament and approved by the NEC.
   
2. Kerenga Kua, MP, Justice Minister – Did not give legal clearance for the payment of K50 m as justice minister responsible for giving legal advice to Government. As member of NEC, not aware through NEC of payment f K50 m
   
3. James Marape, MP, Finance Minister – Member of NEC, not aware of payment. NEC not aware.
   
4. Don Polye, MP, Treasury Minister – Former MP, and former Minister for Treasury. NEC not aware of payment.
   
5. Daniel Rolpagerea – State Solicitor – No legal advice was sought for clearance on procurement process. In a contract worth more than K10 m, NEC must approve it.
   
6. Grace So-on, NEC Secretary - Provision of NEC decisions and Submissions on 2 x Generators
   
7. Dr Bill Toraso – Acting Official Secretary to GG – Acting Official Secretary to the GG, Says no NEC Decision on K94m for payment of 2 x generators
   
8. Columba Woworu, Admin officer, GG, Government House – as above
   
9. Ekip Kop – Auditor , Auditor General – Breach of PFMA, General Supplies and Tenders Board Requirements; Attorney General didn’t give legal clearance, NEC didn’t award the contract, Breach of Central Banking Act; Good and Services Act; Appropriation Act, Constitution (s 209, s 24 and 25 of PFMA for appropriation/supplementary budget);
   
10. Sharon Niaga – Treasury, Requisition officer – authorized by Secretary Dairi Vele to raise claim
    
11. Joe Teria – Dep Gov BPNG – Evidence of payment
    
12. John Jangit – CEO PNG Power Ltd – not consulted at the initial stages before purchase
    
13. Doulas Mageo – Acting CEO PPL – as above
    
14. William Taranta, Acting Manager PPL – as above
    
15. Daniel Toropo, PPL Manager Lae – as above
    
16. Paul Ray – Chief Commissioner of Customs – Service provided by custom to make clearance
    
17. Anne Yip – Agent, Custom Broker – clearance on generators at wharf
    
18. Kidu Andrew - Lawyer, Digicel PNG Ltd – S/W and production of decrypted text messages between 72002277 and 73375509
    
19. The four remaining State witnesses are Police officers involved in the investigations, arrest and charge including conduct of Police interview

Document evidence:

27. The Police case relies on the documentary evidence attached to witness statements. I adopt them as they appear through-out the PHUB.

Defence Submission

28. Evidence in the PHUB exonerates the defendant. Defence rely on paragraphs 35-42 of their filed submissions and say these evidences namely NEC Decisions, Passing of Appropriation Act, letter by defendant to Secretary Mr. Vele asking him to identify monies and transfer same was done legally and properly and all evidence support the defence case that there could not be any misappropriation. Defendant also says that the tender process under the IPBC Act does not apply in this case.

29. On the charge of Conspiracy, given the above, under these circumstances, the letter could not make a case of conspiracy.

30. On Official Corruption, the defence argues that there is no evidence in accordance with the principle in St v Mollo [1988] PNGLR 49 that Mr. O'Niel used his office for gain.

Prosecutions Submission

31. Prosecutions submitted that:

- the Supplementary Budget was still undergoing certification process and was not yet certified when the K50 m was paid. As such, it is a breach of Part V ss 24 and 25 of the PFMA.

- The Procurement and Tendering processes under s40 of the PFMA and Financial Instructions/Management Manual to Major Procurement were not followed

- After the first K50 m payment, on 25^th Feb 2014, the State Enterprise Minister then gave approval for K94 m to purchase two generators from Israel, proper processes were followed and K44 m was paid.

- Prosecution say that this was done to conceal the first wrongful payment of K50 m

- Prosecutions applied or invoked s 23 of the CCA saying that ignorance of the law is no defence.

- When the defendant issued the instructive letter of to Mr. Vele, in the above circumstances, the charges of conspiracy stands and the court to find sufficient evidence on this charge.

On Misappropriation:

32. Prosecutions submitted that the K50 m paid out for the generators was never budgeted for. The K50 m was unlawfully removed from activities in the 2013 Budget that were already budgeted for to pay for 2 x generators these were not approved by NEC. That Prosecution submits that this is misappropriation.

On Conspiracy

33. Prosecutions say the letter dated 4/12/13 by the defendant to Mr. Vele suggests that that they did have a common plan to do an illegal or activity. There was prior discussion on subject matter and these amounts to conspiracy.

Court’s response to Submissions

34. Hearing oral submissions and reading the defence filed submission, there is no issue on the evidence on the elements of date, time, place, and identification of the defendant. The only contested issues are on the presence of evidence on the elements of ‘corruptly conferring or procuring’. There is also no issue on the element of ‘to another, property belonging to the state’.

35. As rightly pointed out by the defence, in the case of the St v Toamara, [88-89] PNGLR 253, where a person was charged with an offence under s 87 of the CCA for official corruption, the court said the word ‘corruptly’ means ‘dishonestly’. One of the accepted definitions of dishonestly used though out the history of English case law is that it involves the state of mind of the accused. In the case of R v Gosh [1982] Cr R 154, the Court of Appeal held that dishonestly is an element of mens rea, clearly referring to the state of mind of a person. The test therefore that must be applied requires the court to look into the mind of the accused and to try to establish what he was thinking, or whether he was engaging in a conduct that connotes to fault. The test was subjective and objective also, in that the court was to see whether the person’s actions were honest according to standards of reasonable and honest people. (St v Francis Natuwohala Laumadava [04] PNGLR 291 at 293).

36. A case on point that may provide some guidance for this court, not on a determination of guilt or otherwise, but on the determination of whether on the assessment of sufficiency of evidence a prima facie case can be made out, I look at the case of St v Paul Tiensten, 2014, N5563. Although facts of both cases on the element of application or use is not exactly the same, by comparison to other cases of misappropriation and official corruption, a similar scenario arose in that case on the elements dishonesty where a direction by a minister was given to a secretary of state for use of state monies for purchase of items outside set procedures and processes. In that case, the defendant Mr. Tiensten was then a Government Minister. He issued written directions to acting secretary to make a payment of K10 m for purchase of an airline service without NEC approval. Court found at para 89 that in the circumstances that this was improper and amounted to dishonest application of state funds. Further, at para 90, the court said that: “given the accused’s level of education, his intelligence, skills, experience in Public Service and politics, I have no doubt in my mind that he appreciated and knew what he was doing wrong and that it was dishonest, when he went ahead to give directions that caused everyone else down the line to break the rules”.

37. In the appeal of this case on verdict, in SC 1468 Paul Tiensten v St, at para 47, the Supreme Court said that: “the Trial court found sufficient evidence to convict on charge of misappropriation”.

38. In my present function as a committal court, I remind myself that I am tasked to determine whether the evidence contained in the present PHUB contained sufficient evidence on all the elements of all the charges to make out a prima facie case against the defendant. In drawing guidance form those cases in the Trial and Appeal courts, and the appropriate guidance being limited to the discussion of the element of dishonesty, I adopt and apply the considerations there in the present circumstances of this case. Here, the evidence in the PHUB show sufficient evidence that NEC deliberation on need for generators, in the amount of for K50 m was made know at NEC sittings, however, other relevant procedures required to vet for the release and payment of K50 m such as NEC approval, and certification of Appropriation Act were not complied with before the payment of state monies of K50m was made and that amounts to a dishonest conduct. Further, relevant procedures relating to tender processes and announcement of successful bidder was not followed.

39. As such, I find sufficient evidence on the elements of the charge of official corruption especially on the element of corrupt or dishonest conduct.

Misappropriation:

40. On the charge of misappropriation, hearing oral submissions and reading from defence filed submissions, I consider that there are no issues on other elements like date, time, place, identification of the defendant and application of property belonging to the state. The only issue is one of the dishonesty aspect of the application. I adopt the view above and find sufficient evidence on element of dishonest application. Monies under the 2013 budget were used for payment of generators, under a contract that according to evidence in the PHUB did not comply with necessary requirements and vetting processes before the payment of K50 m.

Conspiracy:

41. On the charge of conspiracy, the letter dated 4/12/13 alone cannot amount to conspiracy. In my view, as it is, the letter although shows prior discussions says it was on ‘a subject matter’. Subject matter may be the generators and so much the money and manner in which it should be procured. Without other evidence, that on its own is not sufficient to make out a prima facie case. In relying on the case law of St v. Paul Tiesten (supra), the court found that the letter by the minister to the secretary was a directive and so persons down the line had no choice but to comply. There cannot be conspiracy. In the present case, on the charge of conspiracy, the Police submit that it is a direction instruction. If that is so, and for current purposes, I find insufficient evidence on the face of the letter alone, that there was conspiracy between the defendant and Mr. Dairi Vele.

42. I find that witness statements were obtained incompliance with section 94C of the DCA.

Determination/Findings

43. The relevant issue is whether or not the evidence presented in the PHUB discloses sufficient prima facie evidence to put the defendant on trial for the offences for which he has been charged with.

44. On the basis of the above considerations, this court as a result of the performance of its committal function as an investigator into the strength of the case being mounted by prosecution and not as an adjudicator, has assessed the evidence in totality and makes the final finding that there is prima facie sufficient evidence on the essential elements of Official Corruption under section 87 (1) (b); Misappropriation under section 383A (1) (a) of the CCA respectively. On Conspiracy under section 407 (1) (b) of the CCA, there is insufficient evidence on the elements of this charge.

Conclusion

45. I find sufficient prima facie evidence that Mr. Peter O’Niel did commit the alleged offences Official Corruption under section 87 (1) (b); Misappropriation under section 383A (1) (a) of the CCA respectively. Consequently, I form a bona fide opinion that there is sufficient evidence against the defendant in order to commit him to stand trial these two charges.
Final Ruling
46. The court’s final ruling under section 95 of the DCA is that:

1. There is sufficient evidence to commit the defendant to stand trial in the National Court on one count of Official Corruption under section 87 (1) (b); one count of Misappropriation under section 383A (1) (a) of the CCA respectively and
   
2. There is insufficient evidence on elements of the one count of Conspiracy under section 407 (1) (b) of the CCA. For this charge, information is dismissed.

Administration of section 96 of the DCA
47. Pursuant to Section 96 of the DCA, the court has explained to the defendant his options including his right to remain silent. The case is adjourned for the defendant to make a response to the requirements under this part.

Police Prosecutor For the Informant
Young & Williams Lawyers For the Defendant

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