Japele v Raka [2021] PGDC 166; DC7022 (23 November 2021)

DC7022

Papua New Guinea

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

COM NO 1012-1015 OF 2020
CB NO 3173 OF 2020

BETWEEN:

STANLEY JAPELE
[Informant]

AND:

GEI GUNI RAKA
[Defendant]

Waigani: Paul Puri Nii

23th November 2021

COMMITTAL PROCEEDINGS: -Charges- Abuse of Office -Section 92(1)-False Pretense-Section 404(1)(a)- Conspired to Defraud-407(1)(b) and Misappropriation-Section 383A(1)(a) of the Criminal Code Act 1974, Chapter No. 262. Police detectives should supply prima facie balanced evidence supporting all elements of the charges against the Defendant.

PRACTICE AND PROCESS: Permissible stipulation for prima facie Case-Present of the essentials of 4 Charges-Police evidence-ROI-Defendant was the former Administrator for Central Province- purportedly broke the laws while with the former employer. Evidence is insufficient to make a case against the Defendant. All the 4 charges are dismissed.

PNG Cases cited:

In State v O'Neill [2021] PGNC 373; N9213 (14 October 2021)
State v McNamara [2021] PGNC 233; N8914 (9 July 2021)
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)
SCR NO 34 of 2005
Police –v-Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police –v- Dunamis [2021] PGDC 121; DC6067
Potape –v- the state (2005) SC1613
Police –v- Kauna [2021] PGDC 120; DC6075 (25th August 2021)
Police-v- Naria [2021] PGDC 119; DC 6074 (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
Public Finance(Management) Act 1995

Counsel

Police Prosecutor: Peter Samghy For the Informant
Luke Siminji: Public Solicitor For the Defendant

DECISION ON EVIDENCE

23^th November 2021

INTRODUCTION

NII, P. Paul Magistrate. My declaration on whether a prima facie existence is attentively proven within the overtone of Section 95 of the District Court Act 1963, after Prosecution and Defense arguments on the satisfactoriness of evidence are altruistically deliberated. Lawyer for the alleged Offender opposed the power of Police evidence, while Police Prosecutor Joseph Sagam responded for the Defense case by maintaining the evidence. The court has cautiously measured both fights attaching to the Police evidence and subsequently is its verdict on committal.

INSTANTANEOUS OF FACTS

1. Police pronounced the Defendant as aged 60 and from Gamoga village in the Central Province of Papua New Guinea, who until November 2019 was the Provincial Administrator of Central Province. He was subsequently substituted by Francis Koaba who is the Complainant in the allegations against the accused. Police allege that between 2012 and 2013, the National government allocated money in the total of K34, 943, 891.95 to the Central Provincial Administration under the LNG Trust Account. Police allege that the allocated money was four (4) LNG impacted villages, however, the defendant purportedly made payment to companies which are not landowner companies within the description of four (4) LNG impacted villages namely; Porebada, Boera, Papa and Lealea. Defendant alleged to have improperly affianced companies which did not go through the PSTB or SCTB Progression but were paid money. Police allege that Defendant had paid out an aggregate of K34,446, 509.23 of the money appropriated by the National government. Police also allege that Defendant while employed on the position had also improperly abused his powers by paying money to other unsubstantiated service providers. On 20^th August 2020, Defendant was arrested and charged for the offences of Abuse of Office under Section 92(1), Conspired to Defraud under Section 407(b), False Pretense under Section 463(2) and Misappropriation under Section 383A(1)(a) of the Criminal Code Act. Defendant is now out on a Police bail.
   

CHARGES

2. Accused is charged with Abuse of Office under Section 92(1), Conspired to Defraud under Section 407(b), False Pretense under Section 463(2) and Misappropriation under Section 383A(1)(a) of the Criminal Code Act.
   
3. The charge against the Defendant is furthermore showing in the consequential mode:
   

92. ABUSE OF OFFICE.

(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanor. Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.

463. Uttering false documents and counterfeit seals.

(2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

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. Penalty: Imprisonment for a term not exceeding seven years.

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.

ISSUE

4. The examination under my consideration is on whether police evidence is acceptable to commit the Defendant for the allegations against him.
   

THE LAWS

The committal court jurisdiction

5. Segments of the District Court Act which stretches this court authority to decide on Police evidence and rule is under Section 94-100 of the District Court Act 1963. It delivers the allowed underpinning for the court to reflect Prosecution evidence delivered to court by police. In the demonstration of its jurisdictive occupation the court should be guided by philosophies provided by laws when assessing matters of Prosecution evidence concerning the allegations.
   
6. The doctrines in Police –v- Dunamis [2021] PGDC 121; DC 6067 presents the court’s proficiency under Section 95 of the DCA. The same position is recurrently maintained and functional in Police –v- Kauna [2021] PGDC 120; DC 6075 and Police-v- Naria[2021]PGDC 119; DC 6074. The endorsed ability in Section 95[i] together with the cases come into play proximately after when examination on police and defence cases are concluded. In buildup to this, the court in Police-v-Kimisopa [2021] PGDC 76;DC 6031, unashamedly watertight (sealed) the philosophies his honor Gavara-Nanu, J, advocated in Akia –v- Francis [2016] PGNC 335; N6555. His honor says the function of the committal court is like a filtering process where police evidence is filtered to make sure it meets the elements of the allegations to make a prima facie case against the Defendant.
   

ELEMENTS OF THE OFFENCE

7. In order to make a prima face case, it is noteworthy that in the application of its committal jurisdiction, the court must ensure that Police evidence have met the elements of the allegations against the Defendant. The ideologies in Police –v-Kambian [2021] PGDC 66; DC 6021, back up the values in Police v Medako [2021] PGDC 54; DC6011 where the court says Prosecution evidence must satisfy the elements of the related charges against the Defendant.
   

Elements of Abuse of Office pursuant to Section 92(1)[ii]

a) A person

b) employed in the Public Service who,

c) in abuse of the authority of his office does,

d) or directs to be done, any arbitrary act

e) prejudicial to the rights of another

Elements of False Pretence pursuant to Section 404 (1)(a)[iii]

a) A person

b) who knowingly and fraudulently

c) utters a false document or writing, or

d) a counterfeit seal.

Elements of Conspired to Defraud pursuant to Section 407(1)(b)[iv]

a) A person

b) who conspires with another person

c) to defraud the public, or any person

d) (whether or not a particular person)

Elements of Misappropriation pursuant to Section 383A(1)(a)[v]

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

EVIDENCE

8. Evidence plays an imperative role in the management of Committal jurisdiction. The court in Police v Koka [2021] PGDC 53; DC6010, provides that only evidence would either confirm or deny an allegation. I have quoted part of the verdict which stresses the standing of evidence and the character it plays in the succeeding mode:
   

“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”

9. The rise and fall of police case is determined by police evidence meeting elements of the offences.
   

PROSECUTION CASE

10. In Police –v-Kimisopa[vi] the court says police evidence covers witness statements, exhibits and other documentations including Record of Interview and Confessional statements..
    

Police evidence

No	Name	Particulars	Statements
1	Francis Koaba	Acting Provincial Administrator-Central Province	Witness says he found out corruption within the Central Provincial Government administration when he resumed office. He says there was gross mismanagement and misapplication of the LNG Plant IDG funds by the Defendant and his former administration.
2	Ruth Gorua	Acting Provincial Treasurer-Central Provincial Administration	Witness said when she took office in February 2017, discovered that the LNG Plant IDG account was manually kept and expedited since its creation. She says files and records of LNG IDG trust funds were kept by the Administration and not the Finance department. She says Manuel cheque book and other relevant documents and the bank reconciliation from the previous years were kept by Edward Kila who is one of the signatory to the LNG Plant IDG Trust Account.
3	Iakeri Ivai	Chief- Internal Auditor-Central Provincial Administration	Witness says he conducted an investigation into the IDG Trust account and discovered professional negligence and carelessness in the manner in which the former Administrator and his management expanded the LNG IDG Trust account. He says there were unjustified payments to individuals and no records of acquittals for these payments. He says the amount of K4.5 Million paid to Kubak Lawyers was not proper. He confirms that there were so many discrepancies in the manner all payments were made to individuals and companies and funds were used for purposes other than what was initially intended for.
4	Momoru Oda	Chairman Porebada village Hiri LLG	Witness says his village is included in the LNG impacted projects but says funds were diverted elsewhere and thus there was no physical infrastructure development in Porebada village implemented by the Central Provincial Government.
5	Muri Henao	Deputy Chairman-Boera village Hiri LLG	Witness says since 2012 to date there was no proper awareness carried out by the Central Provincial Government on the LNG IDG funds. Witness says his village is in the LNG impacted area but has not benefited from the IDG funds. The Central Provincial Government has not implemented nor established any projects at Boera village by using the LNG IDG Finds.
6	Ario Gau	Chairman-Papa village-Hiri LLG	Witness says there is nothing physical or visible on the ground to show as evidence that the IDG funds were used in the infrastructure development at Papa village.
7	Lawrence Kurangani and Stanley Japele	Police arresting officer and Corroborator	Witnesses are the Police arresting officer and corroborator

DEFENSE CASE

11. Defendant through his Lawyer objects to the police evidence that the contents of Police evidence is not appropriate to make a case against the Defendant.
    
12. Firstly, on the charge of Abuse of Office under section 92(1) of CCA, defense supported his argument on the principles in State –v- Molkawul No 1 [PGNC 286] N6257, that all the elements must be proven beyond reasonable doubt to have the accused convicted. Defense submits prosecution have not produced sufficient evidence to show that Defendant had prejudiced the rights of the Complainant to attract the offence of Abuse of Office.
    
13. Secondly, the defendant objects to the evidence on the charge of Misappropriation under Section 383A)(2) of the Criminal Code Act. Defendant argues there is no evidence provided by police confirms or asserts he put money to his own use or to the use of another. Defendant argues monies were spent mostly on projects sanctioned by the Project Committee and the administrative component of the funds provides for costs associated with the implementation of the IDG. Finally, Defense says the numerous payees were officially contracted and were paid according to the services they rendered and thus submits evidence is insufficient to make a case against the Defendant.
    
14. Thirdly, on the charge of Conspiracy under Section 407(1)(b) of the CCA, defendant apply the principal in Potape –v- the state (2005) SC 1613 that evidence is insufficient to make a prima facie case against the Defendant that he conspired with another person particularly one of the co accused to defraud the people of Motu Koitabu and State. Defense says police evidence confirms money was used for the intended purpose and thus argues Defendant had no personal control on the expenditure and also argues evidence is insufficient to confirm he manipulated the expenditure. Defendant finally argues there were proper checks and balances and thus funds were legally channeled for payment and thus there is no evidence he had conspired.
    
15. Finally, on the charge of False Pretense under Section 404(1)(a) of the CCA, the defendant through this lawyer argues police have failed to produce satisfactory evidence Defendant involved in the allegation.
    

CONSIDERATION OF EVIDENCE

16. Abuse of Office -92(1) of CCA- An individual engaged by the State who, in misuse of the power of his bureau, does, or leads to, any subjective performance detrimental to the privileges of another person. The above charge was quantified by police in the following mode:
    

“ Did abuse the authority of the office he held as the Central Province Provincial Administrator by failing to manage, coordinate, and keep proper records of K34, 464 509.23 Infrastructure Development Grant(IDG) funding under the LNG plants Infrastructure Development Grant BSP Bank trust account No 1009613405 for unjustified projects and individual payments without complying with the Public Finance(Management) Act 1996, National Executive Council(NEC) Decision No 92/2014 dated 26^th March 2014, the Memorandum of Understanding Infrastructure Development (UBSA) Trust account dated 4hr December 2009, the Amendment of LNG Plant Infrastructure Development Grant (IDG) Trust account dated 12^th March 2012; and the Infrastructure Development Grant Guidelines.”

17. Defendant at the time was the Provincial Administrator of Central Provincial Administration and he was the Chief Executive Officer of the Central Provincial Government and he is considered as the Departmental head for purposes of Public Service Act and General Orders. All the District Administrators should report to the Provincial Administrator for all Directions. In here there are no Complaints from the Hiri Kairuku District Administrator but the Complaint was lodged by the Defendant’s successor, the acting Provincial Administrator.
    
18. In State v O'Neill [2021] PGNC 373; N9213, the court says abuse of authority shall transpire when corrupt, inappropriate or unlawful use is made of authority accorded to a communal official or “when the power of an office is used other than for the public good”. There is evidence that monies were paid out to some service providers but there is no evidence that Defendant had wickedly used his powers to siphon or diverted funds to some untended purposes. All the services provided were paid according to the services they collectively rendered. There is no evidence that Defendant had paid money to people who had not performed or discharged duties. In my observation, there is no evidence on the allegation of abuse of office that Defendant had corruptly and inappropriately misused his powers. Given this, it is my view that police evidence is inadequate to make a prima facie case against the Defendant on the charge of Abuse of Office Under Section 92(1) of the CCA and is thus dismissed. Moreover, a similar charge was laid against the Defendant under the same provision for him refusing to pay K 4.7 million to a service provider. The court on 17^th April 2018, in discharging the Defendant stated Defendant acted within his authority to refuse the payment.
    
19. False Pretense – 404(1)(a) of CCA- An individual who expressively and deceptively pronounces an untrue deed or inscription, or a phony oath. The overhead allegation was computed by police in the subsequent manner:
    

“ By falsely pretending to the Central Province Provincial Government a custodian of the LNG plants Infrastructure Development Grant(IDG) funds on behalf of the LNG plant site four(4) impacted villages namely; Porebada, Boera, Papa and Lealea that he authorized, that he authorized, approved and sign cheques totaling K34, 464 509. 23 to companies and individuals without complying with the public finance (Management) Act 1995, National Executive Council(NEC) Decision No 92/2014 dated 26^th March 2014, the Memorandum of Understanding Infrastructure Development (UBSA) Trust account dated 4hr December 2009, the Amendment of LNG Plant Infrastructure Development Grant (IDG) Trust account dated 12^th March 2012; and the Infrastructure Development Grant Guidelines with intent to defraud”

20. In State v McNamara [2021] PGNC 233; N8914 the court made it clear that

Intention is a matter of the mind. A wrongdoer anticipating to deceive is not going to show his or her intention to deceive the person he or she is going to defraud. The court then went on to state that ....”It is a matter kept within his or her own mind. The intention in the mind to defraud is dishonest and the mind is fraught with deceit, trickery and lies. No one can go inside a mind of a person to know what is in the mind of the trickster before the event until after the event has occurred as in this case”.

21. Intention to involve in false pretense cannot be seen but documentation prove should corroborate intention as a matter of fact to bond the accused to the offence. Evidence must prove beyond reasonable doubt to make a case of false pretense that defendant perceptively and dishonestly pronounces an untrue document or script, or a bogus seal to apply money for LNG trust to his own satisfaction. I have read the entire 358 pages of evidence in the police file but could not find any evidence that Defendant dishonestly uses a fake document to use funds allocated for an Infrastructure Development grant by the government. There is evidence of payment to service providers which was endorsed and approved by the Defendant and his co accused namely Wallis Imbal and Edward Kila. To my assessment of evidence on the charge of False pretense, the Defendant was at the time placed with an authority to approve and endorse payments provided all documentations were in order and thus he did that and nothing wrong with that. I cannot imply intention but must rule with evidence to make a case against the Defendant. Moreover, there is no specific evidence corroborating the charge of False Pretense under Section 404(1)(a) of the CCA and hence this charge is dismissed.
    

Conspired to Defraud – 407(1)(b) of CCA

“Did conspire with Wallis Imbal (Former Central Province Provincial Treasurer), Edward Kila(Central Province deputy provincial Administrator-Social Service) and others to defraud the Central Province Provincial Government as the custodian of the LNG Plant Infrastructure Development grants (IDG) Funds on behalf of the landowners of the 4 LNG impacted villages close to the LNG plant site at portion 152 namely; Porebada, Boera, Papa and Lealea by misappropriating K34, 464, 509.23 under the LNG Plant Infrastructure Development grant BSP Trust account –Account No: 1009613405 for unjustified projects and individual payments”

22. Conspiracy to defraud by definition as provided in Police-v-Kimisopa[vii] is an undisclosed disposition by two or more people to do something unlawful. The plan is a secret plan only known to the executors and it is kept within their cycle and knowledge. The Defendant was arrested together with Edwad Kila and Walis Imabl. Police allege that at the time when Defendant was the Provincial administrator of Central Provincial government had made some secret plans with his Deputy Provincial Administrator Mr Edward Kila and Central Province Provincial Treasurer Mr Walis Imbal to exploit and misuse LNG Plant Infrastructure Development Grant of K34, 464, 509. 23 which was parked in BSP trust account No 1009613405.
    
23. Police evidence should be direct that Defendant conspired with his co accused to defraud money the property of the state though the Central Provincial Government for LNG Plant Infrastructure Development. In the police evidence I am satisfied there are copies of bank reconciliation statements and there is a letter from the National department of finance dated 20^th March 2017 regarding change of signature on the trust account. The letter and bank reconciliation statements are documents produced officially by the accused and his co accused in his and their official capacities as former employees of the state. These documents do not constitute conspiracy but are official state documents made out for the public’s consumption. Nevertheless, I have not seen or sighted any evidence in the form of telephone conversation, or letter form the Defendant to his co accused plans and deals to steal or defraud funds for LNG Plant infrastructure development Grant held by Central Provincial Government.
    
24. Evidence to do something unlawful between two or more people must be shown and demonstrated to the court, nevertheless, I did not find any on the police file. Evidence to substantiate any allegation should not be implied on circumstance but must be seen on black and white or in written form. Give this, am satisfied Defendant was identified but evidence is lacking to corroborate he colludes with the co-accused to swindle the public, or the State by misusing Infrastructure Development Grant for LNG impacted sites and thus evidence is insufficient and the charge of False Pretense under Section 92(1) is dismissed.
    

Misappropriation – 383A(1)(b) of CCA

“Being an employee of the Central Provincial Government as the former Provincial Administrator did dishonestly applied to his own use and to the use of Wallis Imbal (Former Central Province Provincial Treasurer), Edward Kila(Central Province deputy provincial Administrator-Social Service) and others property namely; money in the sum of K34, 464 509.23) which was subject to a trust namely; LNG Plant Infrastructure Development grant BSP Trust account Number: 1009613405”

25. Misappropriation under Section 383A(1)(b) of the CCA is when a person unfairly applies to his own use or to the use of another person property belonging to another. In the summary it can be concluded as putting another person or entity either cooperate or a person's resources into a use which is not authorized either by law or for its intended purposes.
    
26. There is evidence of K34 464 509.23 being released by the National government to the Central Provincial Government to be held in trust for the LNG Plant infrastructure development grant for the impacted villages. The beneficiaries of the funds are villages along the mapped zone as an LNG impacted area. The villages are Porebada, Boera, Papa and Lealea in the Hiri Kairuku District of Central Province. The evidence of Momoru Oda who is the Chairman for Porebada, one of the impacted villages in Hiri district says there is no evidence of physical infrastructure development on the ground by the Central Provincial Government as a result of using the funds from government. The evidence of Muri Henao who is the deputy chairman of Poera village in Hiri District says the same as the chairman of Porebada that there are no signs of developments on the ground. Lastly, the chairman of Papa village also shared the same issue raised by the other preceding chairmen of the named villages that there are no physical and visible development on the ground at papa village to show as evidence that IDG funds were applied to its intended function.
    
27. There is a MOU signed by Mr Julian Kubak, National Planning and Monitoring, Defendant and Secretary of Finance that Land owner companies would be given priority when awarding contracts to deliver services to the LNG impacted areas. Between 30th June 2014 and 17^th September 2014 there were some developments by certain service providers to the villagers along Porebada, Boera, Papa and Lealea. However, evidence also shows on 8^th January 2013, a total of K891, 711.22 was paid to Lagos Consulting Firm for road scoping in Tubusereia, Barakau and Gaire village. The villages of Gaire, Tubuseria and Barakau are all located in the Hiri Kairuku electorate. However, the LNG impacted villages are located along the Hiri part of the electorate and not Kairuku.
    
28. The bank reconciliation statement shows there was money used for road projects along the LNG impacted areas at a total cost of K23, 799, 190. The statement also shows a law firm was paid K4.5 million through a consent order from the court. Apart from these a Janet Ontimo was paid K29, 000 and K2,600 for Meeting allowance and refreshment and IDG report compilation. The following are how some money spent on projects on the LNG impacted area:
    

-Bunu water project K5,000 000

-Papa Primary school K150, 000

-Lealea Primary school K150 000

-Papa village Cleanton K50,000

-Bogi and Lealea village cleanaton K20,000

-Consultancy Hiri LLG K110, 000

-Others expenses for Buri and HirI LLG K97,000

Total = K5, 577,000

29. My calculation from the Bank reconciliation statement obtained from the trust account shows a total amount of K29, 376 190.00 was spent wholly on LNG impacted areas for projects mainly for road sealing, development of schools and water projects. Evidence shows that of the K34 464 509.23 allocated by NEC to the Central Provincial Government to be kept in trust for LNG impacted areas, three quarters of the money was used for its intended purposes excluding the legal fees. Essentially a total of K33, 876 190 was already used by the central government for projects. The remaining of K588, 319.20 was used for venue hires and other administrative expenses during the cause of roll out of projects to LNG impacted areas.
    
30. I believe there is MOU signed where the service providers or developers of the LNG impacted areas would be locals from the area. However, there is no evidence on the police file which says a local’s proposal for a project was rejected. Moreover, Police have not appropriately quantified how much money from the total K34 464 509.23 IDG funds Defendant had misappropriated. To my understanding, most of the money was used for the intended purpose which was for development of LNG impacted areas and only K588, 319.20 was used for allowance, venue hire and other administrative expenses and thus nothing is wrong with that so long as those expenses were applied to make way and facilitate the use of LNG money. Therefore, it is concluded that police have failed to meet the elements of the offence of Misappropriation under Section 383A(1)(b) of the CCA and therefore the charge is dismissed.
    

RULING

31. I have assessed evidence in the police file and come to a conclusion that Police evidence has not suitably satisfies the elements of Abuse of Office pursuant to Section 92(1), False Pretense under Section 404 (1)(a), Conspired to Defraud under Section 407(1)(b) and Misappropriation under Section 383A(1)(a)[viii]. Therefore, all in all, evidence is insufficient to make a prima facie case against the Defendant for the respective charges against him and therefore all the charges are dismissed.
    

ORDERS

My Final Orders

1. Evidence is insufficient to Commit the Defendant for the Charge of Abuse of Officer under Section 92(1) of the CCA, False Pretense Under Section 404(1)(a) of the CCA, conspired to Defraud under Section 407(1)(b) of CCA and Misappropriation under Section 383(1)(a) of the CCA.
   
2. All the 4 information containing the 4 charges are dismissed.
   

100. Defendant’s bail money be refunded to him forthwith.
     

.

.

.

Public Solicitor For the defendant
Police Prosecutor For the State

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



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

[viii] Criminal Code Act 1974