Otto v Undi [2021] PGDC 146; DC7001 (13 October 2021)

DC7001

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

SITTING IN ITS COMMITTAL JURISDICTION

COM NO 635 OF 2020

BETWEEN:

PHILIP OTTO

[Informant]

AND:

PAULSON UNDI

[Defendant]

Waigani: Paul Puri Nii

13 October 2021

COMMITTAL PROCEEDINGS: -Charge- Official Corruption -Section 87(1)(a) of the Criminal Code Act 1974, Chapter No. 262. Court’s assessment on evidence to ascertain whether Police supplied prima facie practical evidence sustaining all the elements of the charge to commit the Defendant.

PRACTICE AND PROCESS: Lawful obligation for prima facie case-Establishment of the prerequisites of charge of Official Corruption–Evidence of Witness statements. Defendant conducted an unsanctioned investigation- Defendant was initially asked to audit the books of Nokondi investment in EHP-Defendant then investigated the books for Goroka District Development Authority(GDDA)- Defendant was paid K398 900;00 to his personal account by GDDA.

PNG Cases cited:

Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
State –v- Kirivi [1987] PNGLR 489
Golu v National Executive Council [2011] PGNC 134; N4425 (21 October 2011)
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Paraka v Somare [2009] PGNC 264; N4647 (17 August 2009)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Dunamis [2021] PGDC 121; DC 6067
Police –v- Kauna [2021] PGDC 120; DC 6075 (25^th August 2021)
Police-v- Naria[2021] PGDC 119; DC 6074(25^th August 2021)
In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014)

Overseas cases cited:

Nil

References

Legislation
Constitution of the Independent state of Papua New Guinea
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Police Act 1997
Audit Act 1989

Counsel
Police Prosecutor: Peter Samghy For the Informant
Mr. Joseph Poponawa: Jopo Lawyers For the Defendant

RULING ON COMMITTAL

13^th October 2021

INTRODUCTION

NII, P. Paul Magistrate. This is my ruling on whether a prima facie case is suitably confirmed within the application of Section 95(1) of the District Court Act 1963, when state evidence and Defense submission are carefully considered. On 16^th October 2021, Mr Poponawa, Lawyer for the Defendant made oral submission in respect to his client’s submission filed on 19^th July 2021. Defense predominantly objected to the police evidence that evidence is insufficient to commit the Defendant. Police Prosecutor Peter Samghy submitted evidence sufficient to commit the Defendant. I have cautiously considered both interests affecting their clients and now hence delivered my ruling in rest of the other paragraphs and pages hereunder.

FACTS

1. Police identified the Defendant as Pauson Undi and from Ialibu in the Southern Highlands Province. Police allege Defendant while being employed in the public Service as an Auditor with the Auditor General’s office who while in the course of doing his duties had corruptly received K398,900 form Goroka District Development Authority for himself through the company Optimax Forensics and Advisory Solutions. Police allege the money was made payable into the Defendant’s company to perform an unsanctioned duty which was to conduct investigations to the Goroka District Development Authority account. Police further allege the purported conduct by the Defendant was carried out between 1^st June 2018 and 31^st December 2018. Based on the above assertion, Police arrested the Defendant and charged him with the offence of Official Corruption under Section 87(1)(a) of the Criminal Code Act.

CHARGE

2. Defendant is charged with one count each of Official Corruption under Section 87(1)(a) of the Criminal Code Act 1974, Chapter No. 262. The charge against the Defendant is clarified in the following style:

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

ISSUE

3. The question I will consider is whether evidence in the police file is sufficient to commit the Defendant.

THE LAW

Jurisdiction of the Committal court

4. Sections 94-100 of the District Court Act 1963, obligates District Court to rule on police evidence. The power of the provisions under the District Court Act is further reinforced by several District and National Court cases. The court in Police –v- Dunamis [2021] PGDC 121; DC 6067, spells out that the committal court has power under Section 95 of the District Court Act to rule on committal matters. Moreover, this position is sustained in Police –v- Kauna [2021] PGDC 120; DC 6075 and Police-v- Naria[2021]PGDC 119; DC 6074. Lastly, in the national court case of Akia v Francis [2016] PGNC 335; N6555, the court ruled the characters of committal court is to weigh police evidence and decide whether to commit the Defendant or discharge the information under question.

ELEMENTS OF THE OFFENCE

5. Evidence must meet the elements of the charge in order to establish a prima faciecase against the Defendant. The court in Police v Medako [2021] PGDC 54; DC6011, highlighted police must establish the elements of the pertinent charges corresponding with the evidence to make a case against the Defendant and thus the obligation is now on the Prosecution is prove this.
   

Elements of Oficial Corruption under Section 87(1)(a) of the Criminal Code Act

a A person

b. who being employed in the Public Service,

c. or the holder of any public office; and

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

e. corruptly asks, receives or obtains, or agrees or attempts to receive or obtain,

f. any property or benefit for himself or

g. any other person on account of anything done or

h. omitted to be done, or to be done or

i. omitted to be done by him in the discharge of the duties of his office

EVIDENCE

6. The principal in Police v Koka [2021] PGDC 53; DC6010, is appropriate in committal hearing. The court in the matter stated the importance of evidence that it plays a significant portion in the administration of criminal jurisdiction to ensure a neutral and unbiased decision is reached. The court in Police v Koka^[i] furthermore went on to stress that an accusation is an ordinary allegation unless validated by evidence.....

.....“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ....

7. Police evidence provided to court dated 23^rd November 2020 containing the names of witness statements and other documentary evidence must sensibly connect all the elements of the offence to the evidence.

PROSECUTION CASE

8. Police case is in the police hand-up-brief. It comprises witness statements, statements from Police, Complaint statements’ and other documentary evidence such as exhibits which are part of the police file.

Police evidence in brief:

No	Name	Particulars	Statements
1	Bire Kimisopa	Former member for Goroka open-Complainant	His statement contained how the accused and certain police detectives were paid by GDDA to conduct investigations into the books of GDDA.
2	Mathew Damaru	Director –NFACD	His evidence says he had written to the office of the Auditor General requesting for an auditor to audit the books for Nokondi investment Ltd and in reply the Defendant was assigned to the NFACD.
3	Gordon Bernard Kega	Acting Auditor General	His statement says Defendant was authorized by him to conduct an audit on the books for the Nokondi investment in EHP but he instead conducted an audit into the books of GDDA.
4	Lulu Andreas	Acting Administrator for Goroka District	He says there were meetings conducted by GDDA to address issues relating to fraud within the Authority.
5	Benson Imara	District Administrator for Goroka District	He provides information about the engagement of Defendant to conduct audit books for the GDDA
6	Dominica Songavare	Goroka District Treasurer	Witness account of information is about copies of documents provided to police upon issuance of Search warrant
7	Moses Jimgory	Auditor	Witness says he saw the Defendant in Goroka and was told that he was there to audit books for Nokondi investment until he was surprised to learn later that Defendant was there for another reason.
8	Caroline Jaruga	PLO-DF	She says there was a search warrant to provide evidence of payment to the Defendant to police.
9	Russel Doa	Lawyer-IPO	His statement is about a statement from IPO confirming an entity named Optimax Forensic and Advisory Solutions is owned by the Defendant.
10	Asher Waffi	Senior Lawyer-BSP	This witness provides statements to police about payments received by Defendant in installments.
11	Terry Apolos	Policeman	He was the policeman that was involved in the investigations that led to the arrest of the Defendant
12	Dickson Levi	Corroborator	Policeman present at the time of interview with Defendant
13	Philip Otto	Arresting officer	He is the policeman who had arrested the Defendant

DEFENSE CASE

9. Defendant through his Lawyer Joseph Poponowa argues evidence presented by Police does not establish a prima facie case to hold the Defendant accountable. Defense says prosecution failed to provide evidence to justify Defendant had corruptly received money.
   
10. Defense says the accused was released by the Auditor General to assist police investigations at the request of NFASCD, however, State has not provided evidence to show that the Auditor General had authorized the Defendant’s engagement with Nokondi investment. Defendant further sustained there were no Terms of Reference for him to conduct his obligation except to help Police.
    
11. Defendant argues the payment vouchers provided by police were for the investigations into GDDA pursuant to a criminal complaint lodged GDDA which was registered on15th June 2018. Defendant went on to say the funds were for the costs involved in the investigations including areas such as travel allowance, airfares, vehicle hires, accommodations and other related costs. Defendant then went on to say that based on his investigation, two people were arrested and subsequently committed to stand trial. Defendant says his arrest is politically motivated in an attempt to debauch him from giving evidence as a State witness in the initial investigations that lead to arrest.
    
12. Finally, Defendant through his Lawyer says there is no evidence to confirm Defendant dishonestly asked money to do his job, however, the monies that were alleged to have been paid into the Defendant’s company were legally approved by GDDA for investigation purposes. Defendant funded his assertion on State –v- Kirivi [1987] PNGLR 489, evidence is lacking to allege Defendant had corruptly used money for GDDA.
    
13. Defendant's arguments is that he did not go to goroka to discharge his duties as an Auditor with the office of the Auditor General but was there to investigate the books relating to Nokondi investment. However, during Defendant contests while he was in Goroka, there was an im-pass between Peter Numu and Samson Akunai which led him to assist NFACD in their investigations.
    

CONSIDERATION OF EVIDENCE

Police evidence

14. The crux of police evidence from the Complainant Bire Kimisopa and other state witnesses are that Defendant was engaged by his employer, the office of the Auditor General to audit books for Nokondi investment, a subsidiary company for the Eastern Provincial Government. The engagement came about after the Governor for Eastern Highlands wrote a letter of Complaint dated 18^th July 2018 to Director NFACD about misuse of funds and corruption in the EHPG’s business arm. Police on 13^th July 2020, wrote to the office of the Auditor General requesting for a forensic Auditor to assist police in the investigations. The Defendant who was an Auditor with the Auditor General was assigned by Gordon Keka the Defendant’s employer to assist police by conducting investigations into the books of Nokondi investment. Police evidence shows Defendant was an Auditor with the Office of the Auditor General, however, since the Governor for EHP requested for a forensic auditor to audit books for Nokondi investment, the Defendant was engaged to conduct auditing.
    
15. Defendant's arguments show he did not go to Goroka in the discharge of his official duties as an Auditor with the office of the Auditor General. Defendant says he was in Goroka for the investigations of Nokondi investments. However, Defendant says since there was an im-pass between two factions within the EHPG, he could not conduct investigations into the books for Nokondi investment but instead assisted police with their investigations into the books for GDDA.
    
16. In summary, police evidence is Defendant while engaged by the Office of the Auditor General to conduct forensic auditing into the books of Nokondi investment upon request from EHPG through the Director NFACD, he absconded his duties and instead conducted an unsanctioned and illegal audit and investigations into the books of GDDA and therefore he was paid a sum huge amount of money by GDDA. On the other hand, Defendant's case is his involvement with GDDA was authorized given his position to assist with police in their investigations while he could not proceed with Nokondii investment. Moreover, Defendant’s justification on the payment was as legal as it was for the expenses for policemen involved in the investigations.

RULING

17. The Defendant in this allegation is an Accountant by profession who was employed by the office of the Auditor General. He is a forensic auditor by profession and his service was required to conduct investigations into the books for Nokondi investment. The Defendant’s service was required by EHPG to conduct forensic auditing into the books for its subsidiary company, Nokondi investment. Defendant’s engagement with Nokondi Investment was sanctioned and permitted by its employer, the office of the Auditor General. Defendant had an obligation to accomplish as his terms of reference(TOR) was to do a forensic auditing on the books for Nokondi Investment. Defendant's engagement must be strictly for the purpose why he was engaged. If the terms of reference were too general or change of circumstance affected the same then it is up for the sending authority to amend the TOR to accommodate the changes. Thus, it would be unlawful to participate and embroil in happenings external to the terms of reference: Golu v National Executive Council [2011] PGNC 134; N4425.
    
18. Defendant says his objective was to conduct forensic auditing into the books for Nokondi however, since there was an im-pass in the EHPG where he could not access the books for Nokondi investment and therefore he assisted police by conducting investigating into the books of GDDA. There is nothing wrong with Defendant assisting police where interest of justice required, however, before one engaged in any activities outside of his TOR, prior approval must be sought from the sending authority which in this case is the Defendant’s employer so that the new engagement would be seen as within the TOR: Paraka v Somare [2009] PGNC 264; N4647.
    
19. The statement of Director NFACD Mathew Damaru says at paragraph 4 Defendant and several police detectives from his directive went and EHP to conduct investigations in the books for Nokondi investment but when the police detectives returned form Goroka Defendant did not provide a report about his investigations. The statement of Auditor General dated 9^th November 2020, says Defendant did not furnish a forensic audit report about his investigations. I note the reason why Defendant could not provide his expert opinion on the allegations into Nokondi investment due to lack of documented evidence which was caused as a result of an Administrative standoff caused within EHPG as indicated on his submission at paragraph 6.6. However, Defendant did not provide any report regarding the impasse or reason why he could not conduct investigations to the Auditor General, thereby Defendant breached Section 4(1)(a) of the Audit Act 1989.
    
20. Defendant maintained his assertion that he assisted police with investigations into the books for GDDA and not Nokondi investment. Defendant says he assisted police in his job as a forensic auditor and not as a normal auditor. Defendant says the money in the sum of K398, 900 was for policemen within NFACD to conduct police investigations into the allegations of misuse in GDDA. I note from evidence that the Defendant was engaged to conduct forensic Auditing into the books for Nokondo investment after 26^th July 2018 as indicated at paragraph 2 of the Acting Auditor general’s statement dated 9^th November 2020 and thus Defendant was engaged sometime after 26^th July 2018. However, I have also noted that Defendant submitted an invoice to GDDA on 22^nd June 2018, under his company Optimax Forensic and Advisory Solutions for payment. The date of invoice is before the Defendant’s engagement with NFACD to conduct investigations into Nokondi investments. This confirms Defendant’s argument that GDDA had lodged an official complaint with NFACD prior to the one lodged for Nokondi investment. There is nothing in the evidence indicating Defendant was engaged by police or Auditor General’s office to conduct investigations into the books for GDDA so who authorized the Defendant’s engagement to conduct investigations into the books for GDDA?
    
21. Defendant is alleging he was involved in the police investigation team and went to Goroka as a Police investigator and not as an auditor. Why the Defendant’s engagement with Police to conduct investigations into the books for GDDA was not known by his employer the auditor general? Moreover, if Defendant was engaged with police to conduct investigations into the books for GDDA then there is no minute nor a gazette giving effect to the Defendant’s engagement with Police as on secondment while retained the employment with Auditor General on full pay.
    
22. There is no evidence that Defendant was engaged by police under Section 7 and Section 4 of the Police Act 1996. The powers of the Commissioner of Police under Section 198 of the constitution and the Police Act 1996 is further strengthened in re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014), where the Commissioner of Police retains the Superintendence of the Police force while its powers of investigations are further delegated to officers down the rank and file. The directions to conduct police affairs including police investigations are from superiors down the command and control though proper directions either by way of a minute or gazette.
    
23. Defendant says he was engaged by police to assist in the investigations involving books for GDDA. However, there is no official letter or minute form from the office of the NFACD for his engagement with police. However, the only engagement with police as evidence indicated is for him to assist in the forensic audit for Nokondi investment.
    
24. On the 4^th of December 2018, there was an email from Marry-Ann Zurenuoc a Director within the Forensic Auditing unit of the office of the Auditor General alleging serious allegations of misconduct and double dipping against the Dependent. The enquiry was conducted after Defendant did not furnish a report about his forensic auditing for Nokondi Investment to the Auditor General. The Defendant’s immediate Director, Auditor General and Director NFACD’s assertion against the Defendant about his failure to furnish reports for Nokondi investment indicated to me Defendant while in Goroko did not conduct a report to his inferior and NFACD.
    
25. Evidence shows that Defendant’s engagement with GDDA and certain members of the NFACD to conduct investigations into the books for GDDA is done without the prior approval and endorsement from the office of NFACD and Auditor General. Evidence also shows there were certain members of the Police personnel within NFACD and Defendant were engaged by GDDA to conduct investigations and the engagement was a private arrangement between the Defendant with policemen from NFACD and GDDA. Since it was a private arrangement, the entire expenses for the people involved were wholly taken care of by GDDA through a budget of K398,900, which was paid in installments into the Defendant’s company through six different cheque payments.
    
26. I note the submission form Defendant that money was paid into his company so that it would form the basis of acquittal, if Defendant’s engagement with GDDA was approved and endorsed by his both Police and Auditor General then there is no need to pay K398,900 to the Defendant’s private company. Why pay the Defendant by GDDA while he was already paid by the State to conduct audit investigations and further, why police are privately funded while they are paid by state to do their police job? The IPA records provided to the court shows Defendant is the lone shareholder and Director to the company where the money was paid to. The usage of the money was at the Defendant’s own disposal. Moreover, there is no evidence about all the names of policemen involved and how much each was paid including evidence of payment to service providers in Goroka and how the entire money was used other than only informing the court that it was for allowance, airfares, accommodation and hire cares.
    
27. I have assessed the police file and Defense submission and found out that Defendant was neither appointed by Police nor office of the Auditor General to conduct investigations into the books for GDDA but Defendant was approved by his employer and Police to conduct investigations into the books for Nokondi investment. Evidence suggests it was a private arrangement by GDDA and Defendant. Defendant was therefore paid K398,900 by GDDA to conduct forensic and criminal investigations. Defendant then sought the assistance of several policemen within NFAC without the authority of Director NFACD. Therefore, it is my conclusion Defendant while employed as an Auditor with the officer of Auditor General and in the discharge of his duty as an auditor without proper approval from his employer had unfairly received K398,900 by GDDA for purposes unauthorized and unsanctioned.

CONCLUSION

28. I have judiciously assessed all the witness statements provided by police including documentary evidence in the police file and gratified there is prima facie sufficient evidence satisfying the elements of the charge under Section 87(1)(a) of the Criminal Code Act.

ORDERS

29. My Final Orders
    
    1. Evidence is sufficient to commit the Defendant .
    2. Matter adjourned to 20^th October 2021 at 9.30am for statement under Section 96 of the District Court Act..
    3. Defendant’s bail extended.
       

Jopo Lawyers For the defendant

Police Prosecutor For the State

[i] [2021] PGDC 53; DC6010 (31 May 2021)