Muga v Nayabbanung [2021] PGDC 156; DC7011 (10 November 2021)

DC7011

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 262-265 OF 2021

BETWEEN:

LUCAS MUGA
[Informant]

AND:

DITHA MORRIS NAYABBANUNG
[Defendant]

Waigani: Paul Puri Nii

10th November 2021

COMMITTAL PROCEEDINGS: -Charges- 7 counts of Misappropriation -Section 383 A (1)(a) and 7 counts Conspiracy - 407(1)(b)- of the Criminal Code Act 1974, Chapter No. 262. Police investigators should provide prima facie rational evidence clarifying and sustaining all elements of all the counts in the charges to make a case against the Defendant.

PRACTICE AND PROCESS: Permissible prerequisite for prima facie Case-Existence of the fundamentals of charges of 7 counts of Misappropriation and 7 counts of Conspiracy –State evidence-ROI-Defendant was acting Managing Director for NAC IN 2017- Allegation of illegal signing of contract of sale between NEC and PNG Resources Corporation limited trading as Kwik Built PNG. 301 land titles were transferred to Kwik built. No conveyancing certificate and fee of 10%.

PNG Cases cited:

Akia -v- Francis [2016] PGNC 335; N6555 (24 August 2016)
Police –v-Kambian [2021] PGDC 66; DC6021 (30th January 2021)
Police -v- Medako [2021] PGDC 54; DC6011 (31 May 2021)
State v. Tanedo [1975] PNGLR 395
Police –v-Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police -v- Dunamis [2021] PGDC 121; DC6067
Police –v- Kauna [2021] PGDC 120; DC6075 (25th August 2021)
Police-v- Naria [2021] PGDC 119; DC6074 (25th August 2021)
Police-v-Kimisopa [2021] PGDC 76; DC6031 (30th June 2021)

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
Lands Act 1996

Counsel
Police Prosecutor: Joseph Sagam For the Informant
Mr. Elah Nalea: Kamen Lawyers For the Defendant

DECISION ON EVIDENCE

10^th November 2021

INTRODUCTION

NII, P. Paul Magistrate. My decision on whether a prima facie occasion is applicably authenticated inside the association of Section 95(1) of the District Court Act 1963, after prosecution and Defense arguments on the weight of evidence are unselfishly considered. On 27^th September 2021, Mr Nalea, Lawyer for the accused argued on the weight of police evidence tendered to court on 17^th June 2021, while prosecutor Joseph Sagam responded. I have prudently dignified both arguments relating to the evidence and now is my conclusion on committal.

PARTICULARS (Pertaining to the Allegation)

1. Police indictment or information in the police file says, Defendant is aged 40 and from Wankun 2 village in the Markam District of Morobe Province. He is married with 7 children and now residing at 9-mile, Morobe block, NCD. Defendant was the acting Managing Director for NAC in 2017 but was previously a board member in National Housing Corporation (NAC).
   
2. Police allege Defendant being the acting Managing Director had signed a Contract of Sale with Paul Pera, the former Acting Principal Legal Officer for and on behalf of NHC with the Management of PNG Resources Corporation Limited trading as Kwik built PNG. They had transferred 301 titles from Portion 528 Durna Farm at 8-mile in the National Capital District.
   
3. Police said a Complaint was lodged with the National Fraud and Anti-Corruption Directorate at Konedobu and subsequently police investigations had begun. From the investigations it was discovered that Land titles were to be under National Housing Corporation after the Urban lease development plan was acquired from the department of Lands and Physical Planning under the Build, Sell and Share(BSS) scheme. Nevertheless, police say 301 titles were transferred to Kwik Built thereby defeating the purpose of Build, Sell and Share scheme initiated by the preceding government through decision No 317 of 2015.
   
4. Police moreover says their investigations from the Department of Lands and Physical Planning shows there was no certificate of conveyance and conveyance fee of 10%. The following title were being issued to Kwik Built valued at K24.08 MILLION at the rate of K80,000 per title:
   

a. Section 162 Allotments 1-73 valued @ K5, 848,000.00

b. Section 110 Allotments 1-64 valued @ K5, 120,000.00

c. Section 119 Allotments 1-4 valued @ K320,000.00

d. Section 168 Allotments 1-30 valued @ K2, 400,000.00

e. Section 169 Allotments 1-30 valued @ K2, 400,000.00

f. Section 170 Allotments 1-30 valued @ K2, 400,000.00

g. Section 122 Allotments 1-63 valued @ K5, 040,000.00

5. On the foregoing, Defendant was arrested and charged by police on the 18/11/2020 after he was being invited for an interview with Police at Konedobu in NCD. Defendant is charged with 7 counts of Misappropriation and 7 counts of Conspiracy under Section 383A(1)(a) and 407(1)(b) of the Criminal Code Act.
   

CHARGES (Accusations)

6. 6) Accused is charged with 7 counts each of Misappropriation under Section 383A (1)(a), and Conspiracy under Section 407(1)(b) of the Criminal Code Act 1974, Chapter No. 262. The charges against the Defendant are additionally exposed in the consequent routine:

(1) “383A. Misappropriation of Property.

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

(a) property belonging to another is guilty of the crime of misappropriation of property.”

(2) “407. Conspiracy to defraud.

(1) A person who conspires with another person–

(b) to defraud the public, or any person (whether or not a particular person) is guilty of a crime.”

ISSUE

7. The question under court’s consideration is whether evidence in the police file is adequate to commit the Defendant on the charges of Misappropriation and Conspiracy against the offender.
   

THE LAW

The Jurisdiction basis of Committal Proceeding

8. The provisions of the Law under Sections 94-100 of the District Court Act 1963, gives the appropriate beginning upon how a committal court should administer its functions to rule on evidence. The court must be comfortable with prosecution evidence surrounding witness declarations and other documentary evidence in over-all including photo exhibits by meeting the elements of 7 counts each of the (2) charges. In the application of committal jurisdiction, I shall assess the police file tendered to court on 17^th June 2021.
   
9. Many cases both in the National and District Courts have openly enlightened the Committal court’s obligation in respect to the Police file. The committal court in Police –v- Dunamis [2021] PGDC 121; DC 6067 offered the committal court’s effectiveness pursuant to Section 95 of the DCA. This locus is commonly strengthened and used in Police –v- Kauna [2021] PGDC 120; DC 6075 and Police-v- Naria[2021]PGDC 119; DC 6074. The lawful ability in Section 95[i] and the reinforced cases come into impact promptly after examination on the police hand-up-brief and Defense arguments are concluded. In buildup to this, the committal case of Police-v-Kimisopa [2021] PGDC 76;DC 6031, evidently conserved the point his honor Gavara-Nanu, J, upheld in Akia v Francis [2016] PGNC 335; N6555. The court developed the functions of committal court as a purifying expansion where evidence is strained out from the prosecution case to ensure it lawfully and discreetly meets the elements of the charges against the Defendant to endorse there is suitable evidence.
   

ELEMENTS OF THE OFFENCE

10. The distinction of establishing each element of the charges with prosecution evidence is fundamental to arriving at an allowable decision. The committal court in Police –v-Kambian [2021] PGDC 66; DC 6021, locked the locus involved in Police v Medako [2021] PGDC 54; DC6011 that Prosecution must institute the elements of the applicable charges. Furthermore, the court’s position is specified in Police-v-Kimisopa[ii] that most offences have the elements of mens rea (mental) and actus reus(Physical), which prosecution should satisfy through their evidence.
    

Elements of Misappropriation under Section 383A(1)(a)[iii]

a. A person

b. who dishonestly

c. applies to his own use or

d. to the use of another person

e. property belonging to another

Elements of Conspiracy under Section 407(1)(b)[iv]

a. A person

b. who conspires with another person

c. to defraud the public, or

d. any person (whether or not a particular person)

EVIDENCE

11. The ability of the committal court in Police v Koka [2021] PGDC 53; DC6010, is suitable in committal court hearing. The law court cited the importance of evidence that establishes an essential fragment in the running of criminal fairness to maintain an independent and balanced decision. The court states an assertion is a mere contention unless supported 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” ....

12. Parties arguments on the sufficiency of evidence should satisfy me that there is hands-on confirmation meeting the elements of the 7 counts each of 2 charges against the Defendant.
    

PROSECUTION CASE

13. The committal court in Police –v-Kimisopa[v] markedly illustrates the ingredients of police evidence as it includes witness testaments and documented confirmation containing Summary of facts and outcome of the accused’s interrogation, which thus creates police evidence against the Defendant.
    

Police evidence in momentary (brief)

No	Names	Designation	Statements
1	Taepom Delly	General Manager-Technical Services and General Manager with NHC	Her statement is about the process and procedures involved in getting Urban Development lease in relation to Duran Farm. She says the correct process was not followed when titles were transferred.
2	Jim Tepi	Conveyancing Coordinator with NHC	His evidence is about how conveyancing of land and housing are done with NHC and also states that the process was not followed when 301 titles were transferred.
3	Robert Abani	Internal Auditor-NHC	This witness says he conducted an internal audit into the cooperation and found out that the sale of 301 land titles and use of PIP funds in the transaction was not in order.
4	Bugave Gabina	Regional Manager-Southern Region-NHC	Witness says there were initially five(5) companies engaged under the Buy, sell and share (BSS) scheme but PNG Resources Corporation Limited trading as Kwik built was not part of BSS but was illegally awarded the 301 shares.
5	Konsi Ovia	Police Corroborator	Policeman who was with the arresting officer at the time when the Defendant was interrogated.
6	Lucas Muka	Case Officer	The police informant who arrested and charged the Defendant

DEFENSE CASE

14. Defendant through his Lawyer based his argument on the submission of evidence filed on 27^th August 2021. Defense submits police failed to establish the elements of Misappropriation under Section 407(1)(b) of the CCA. Defense submits there were due diligence checks and balances by line managers and others including the Principal Legal Officer before it came to the attention of the Defendant and thus submits the charge under Misapplication is inappropriately before the court and for the court to dismiss.
    
15. Secondly, Defendant argues on the charge of Conspiracy under Section 383A (1)(a) of the CCA that all witness statements are irrelevant for purposes of court’s deliberation under Section 95 of the District Court Act. Defendant went on to say witness statements of Delly Raepom, Tim Tepi, Robert Abani and Gabina Bugawa as without importance since they did not say they witnessed in person Defendant conspired with one or two persons to sell 301 titles to the company PNG Resources Corporation Limited. Defendant also argues statements of arresting officer and police corroborator are irrelevant as they only stated their involvement in the arrest and subsequent charge against the Defendant.
    
16. Lastly, Defense argues that the court should invoke its powers under Section 21 of the District Court Act and charge a police witness for perjury and misleading the court.
    

CONSIDERATION OF EVIDENCE

17. Defendant was charged with 7 counts each of Misappropriation and Conspiracy under the Criminal Code Act. There are a total of six(6) people giving testimony for the state but my focus will be on the witnesses who claimed as employees of NHC under their corresponding capacities and not police witnesses. There are a total of seven (7) counts each for Conspiracy and Misappropriation under the CCA and thus each count shall be addressed unconnectedly.
    

(First Count of charge under Misappropriation and Conspiracy)

“Police allege that on 24^th August 2018, Defendant conspired with Paul Pera, Labi Amaiu, Veronica Amaiu and Tiri Wanga to defraud by Obtaining Duran Farm Land (Portion 528) Section 161, Allotment 1-73 valued in the total sum of K5, 840, 000.00 dated 24^th August 2017 transferred from National Housing Corporation to Company styled PNG Resources Corporation Limited trading as Kwik Built Property of the Independent state of PNG”.

(Second Count of charge under Misappropriation and Conspiracy)

“Police allege that on 15^th September 2018, Defendant conspired with Paul Pera, Labi Amaiu, Veronica Amaiu and Tiri Wanga to defraud by obtaining Duran Farm Land (Portion 528) Section 110, Allotment 1-64 valued in the total sum of K5, 120, 000.00 dated 15^th September 2017 transferred from National Housing Corporation to Company styled PNG Resources Corporation Limited trading as Kwik Built Property of the Independent state of PNG”.

(Third Count of charge under Misappropriation and Conspiracy)

“Police allege that on 18^th September 2017, Defendant conspired with Paul Pera, Labi Amaiu, Veronica Amaiu and Tiri Wanga to defraud by Obtaining Duran Farm Land (Portion 528) Section 119, Allotment 1-4 valued in the total sum of K320, 000.00 dated 18^th September 2017 transferred from National Housing Corporation to Company styled PNG Resources Corporation Limited trading as Kwik Built Property of the Independent state of PNG.”

(Fourth Count of charge under Misappropriation and Conspiracy)

“Police allege that on 15^th September 2018, Defendant conspired with Paul Pera, Labi Amaiu, Veronica Amaiu and Tiri Wanga to defraud by Obtaining Duran Farm Land (Portion 528) Section 161, Allotment 1-73 valued in the total sum of K2, 400, 000.00 dated 15^th September 2017 transferred from National Housing Corporation to Company styled PNG Resources Corporation Limited trading as Kwik Built Property of the Independent state of PNG”.

(Fifth Count of charge under Misappropriation and Conspiracy)

“Police allege that on 15^th September 2017, Defendant conspired with Paul Pera, Labi Amaiu, Veronica Amaiu and Tiri Wanga to defraud by Obtaining Duran Farm Land (Portion 528) Section 169, Allotment 1-30 valued in the total sum of K2, 400, 000.00 dated 15^th September 2017 transferred from National Housing Corporation to Company styled PNG Resources Corporation Limited trading as Kwik Built Property of the Independent state of PNG”.

(Sixth Count of charge under Misappropriation and Conspiracy)

“Police allege that on 21^st September 2017, Defendant conspired with Paul Pera, Labi Amaiu, Veronica Amaiu and Tiri Wanga to defraud by Obtaining Duran Farm Land (Portion 528) Section 170, Allotment 1-30 valued in the total sum of K2, 400, 000.00 dated 21^st September 2017 transferred from National Housing Corporation to Company styled PNG Resources Corporation Limited trading as Kwik Built Property of the Independent state of PNG”.

(Seventh Count of charge under Misappropriation and Conspiracy)

“Police allege that on 21^st September 2017, Defendant conspired with Paul Pera, Labi Amaiu, Veronica Amaiu and Tiri Wanga to defraud by Obtaining Duran Farm Land (Portion 528) Section 122, Allotment 1-63 valued in the total sum of K5, 040, 000.00 dated 21^st August 2017 transferred from National Housing Corporation to Company styled PNG Resources Corporation Limited trading as Kwik Built Property of the Independent state of PNG”.

18. I have assessed police evidence and found out that witness statements of Delly Raepom, Robert Albani, Bugave Gabna and Jim Tepi discussed PNG Resources Corporation Limited not being part of the initial companies approved by NEC to develop the Duran farm project. I also found out from police evidence that the inclusion of PNG Resources corporation limited was done by the board of NHC with consultation from the Minister responsible for housing which was subsequently facilitated by Defendant. On the other hand, Police evidence did not provide any names of persons Defendant conspired with to allegedly transfer 301 titles to PNG Resources Corporation Limited. I will address all in detail in my subsequent ruling.
    

RULING

19. I have considered Defense submission on the issue of insufficiency of evidence. Firstly, I will address the issue of a Police witness misleading the court as submitted by the Defense Lawyer. Unless police witnesses form crucial evidence for the police case, I do not give weight to police evidence since their roles regarding the case is only narrowed to corroboration, arrests and subsequent charges. I note Defense has asked the court to use its powers under Section 21 of the District Court Act and charge police witnesses for perjury. Section 21 of the DCA provides for civil jurisdiction but the matter before the court falls under the Criminal jurisdiction, which means the argument in itself falls short of the applicable jurisdiction and thus it is inappropriate before the court.
    
20. I will now proceed to address the rest of the arguments and police evidence in the following manner leading to my final decision on committal. I will firstly address evidence on the charge of Conspiracy under Section 407(1)(b) of CCA. The court in Police v Kimisopa[vi] implemented the values in State v. Tanedo [1975]PNGLR 395 at page 418, in the subsequent routine:
    

“If two or more persons agree together to do something contrary to law... or wrongful and harmful towards another person, ......... or to use unlawful means in the carrying out of an object not otherwise unlawful, the persons who so agree commit the crime of conspiracy,.... So long as the design to do such an act rests in intention only it is not criminal, but as soon as two or more agree to carry it into effect, then their act becomes punishable.” “(Halsbury third., Vol 10, pp 310 and 311).

21. In addition to the above the same court demarcated the meaning of Conspiracy as an undisclosed strategy by two or other individuals to do something unlawful. It is demonstrated from the statement of Delly Rapepom that initially there were five companies engaged under the BBS arrangement to build houses but PNG Resources Corporation Limited was not one of the approved contractors engaged. Statement of Jim Tepi explains how the conveyancing process is done. He says documents are lodged to the Registrar of Titles office to the Department of Land and Physical Planning. Once the transfer is formally registered under the purchase name and he/she becomes the new landlord to that property, that is the time when NHC has no interest in the property. Evidence of Abani Robert says there was an audit done that concluded there was abuse of PIP funds when 301 titles were transferred directly from the department of Lands and Physical Planning to PNG Resources Corporation Limited. Lastly, is the evidence of Gabina Bugave, where he says PNG Resources Corporation Limited is not one of the companies approved by NEC under the BSS arrangement.
    
22. Police information named three persons (Labi Amaiu, Veronica Kamiak and Tiri Wanga) as persons who conspired with the defendant sell 301 titles to PNG Resources Corporation. In order for me to satisfy the elements of the offence of Conspiracy under Section 407(1)(b) of the CCA, either one or two of the persons whom the Defendant had allegedly conspired with must be named. I have read the witness statements but these witnesses have not mentioned to my satisfaction that on those respective dates Defendant was allegedly seen with the co accused to carry out the act of transferring 301 tiles to PNG Resources Corporation Limited. My obligation under Section 95 of the District Court Act is not to assume evidence on a police file but actually see and assess it. One of the crucial elements of conspiracy is the person against whom the Defendant allegedly conspired with must be identified and named but such is not mentioned here.
    
23. I am satisfied Defendant is identified to be person who conspires with others but these others are not named and therefore in my opinion I consider Police have failed to establish sufficient evidence to meet the elements of Conspiracy under Section 407(1)(b) of the CCA and thus the charge against the Defendant on 7 counts of Conspiracy is dismissed.
    
24. Now I will proceed to consider the evidence on the charge of 7 counts of Misappropriation under Section 383A (1)(a) of the CCA. Misappropriation is when money or resources intended for a particular purpose are used for an unintended purpose. Police must convince me through their evidence that the alleged money property of NHC was used by the Defendant for an unintended purpose. Evidence shows there were a total of 301 tiles issued to PNG Resources limited worth K24.08 million at a rate of K80, per tile. The description of the property in which titles were transferred are labelled as Sections 161, 110, 119, 168, 169, 170 and 122 and its corresponding allotments are 1-73, 1-64, 1-4, 1-30, 1-30, 1-30 and 1-63.
    
25. I have noted that on 26^th July 2017 defendant wrote a letter to the Secretary for Department of lands and physical planning requesting approval of declaration notice under Sections 111 and 113 of the Lands Act 1996 and on 9^th August 2017, Defendant wrote another letter to the Secretary for the Department of Lands and physical planning to confirm PNG Resources Corporation Limited as the legal purchaser of the 301 titles. On 8^th July 2017, NHC made an offer to PNG Resources Corporation Limited to purchase Section 110 and Allotments 1-59 Granville NCD part of the lands described as 301 tiles. Contract of sale was subsequently signed between Defendant Paul Pera and Veronica Kamiak.
    
26. My assessment of evidence also reveals on 27^th October 2015, NEC through decision No 317/15, approved Hausman building Solutions Ltd, Sahndong Yanjan Industrial Ltd, Curtain Brothers Ltd and Dakota Construction Limited to develop a housing Project at Duran Farm. In the initial NEC decision PNG Resources Corporation limited was not named but Defendant at question 38 of his ROI mentioned that PNG Resources Corporation Ltd was given the contract after other companies approved by NEC pulled out and the approval was initiated through the Minister for housing which was followed by a contract of sale.
    
27. Evidence before me shows the initial decision came from NEC but after when other contractors pulled out the Board of NHC nor Defendant did not write to NEC to include PNG resources corporation as an additional company to replace them. Evidence shows approval of companies/contractors was initiated by NEC and therefore any addition or subtraction from the initial approval should come from NEC through a new resolution and not NHC or other entities.
    
28. Evidence shows Defendant instead of writing to NEC though the Minister for Housing to reconsider decision No 317/2015 or for NEC to include a new company went ahead and engage PNG Resources Corporation Limited, a company in my opinion was not initially intended/approved by NEC to be one of the Contractors for the development of Duran farm. Evidence shows when engaging PNG Resources Corporation Limited, Defendant had untruthfully abused the initial intention of NEC by appointing a company to his own use and to the use of others known to the Defendant thereby defeating all its subsequent purposes.
    
29. Consequently, I am satisfied with Police evidence that it meets all the 7 counts of Misappropriation under Section 383A(1)(a) of the CCA that defendant had untruthfully applies to his own use and to the use of his co accused’s property of NHC and State and hence evidence is sufficient under this allegation.
    

CONCLUSION

30. Defendant is charged with 7 counts each of Conspiracy under Section 407(1)(b) and Misappropriation under Section 383A(1)(a) of CCA. Evidence is insufficient to commit the Defendant for the charge of Conspiracy under Section 407(1)(b) of the CCA, hence all the 7 counts under this charge are dismissed. Nevertheless, evidence is sufficient to Commit the Defendant for the charge of Misappropriation under Section 383A(1)(a) of the CCA and thus all 7 counts are sustained.
    

ORDERS

My Final Orders

1. Evidence is insufficient to commit the Defendant for the 7 counts of Conspiracy under Section 407(1)(b) of the Criminal Code Act and therefore this charge is dismissed.
   
2. Evidence is sufficient to Commit the Defendant for the 7 counts of Misappropriation under Section 338A(1)(a) of CCA and therefore this charge is sustained.
   

Kaman Lawyers For the defendant
Police Prosecutor For the State

[1] Section 383A added by No. 10 of 1981, s1.

[i] District Court Act
[ii] [2021] PGDC 76;DC 6031(30^th June 2021)
[iii] Criminal Code Act 1974
[iv] Criminal Code Act 1974
[v] Supra (the case on point that specifies the contents of police file)
[vi] [2021] PGDC 67; DC 6021 (30 June 2021)