Koya v Agon [2021] PGDC 233; DC7094 (23 December 2021)

DC7094

Papua New Guinea

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

COM NO 1121-1123 OF 2021
CB NO 2357 OF 2021

BETWEEN:

YALI KOYA
[Informant]

AND:

IMELDA AGON
[Defendant]

Waigani: Paul Puri Nii

23th December 2021

COMMITTAL PROCEEDINGS: -Charge- Misappropriation -Section 383 A (1)(a), Conspiracy - 407(1)(b) and Abuse of office-92(1)- of the Criminal Code Act 1974, Chapter No. 262. Police detectives should afford prima facie cogent evidence expounding and supporting the elements of all charges to satisfy the requirement under Section 95 of the DCA.

PRACTICE AND PROCESS: Acceptable qualification for prima facie Case-Existence of the foundation of the charges–State witness -ROI-Defendant-Defendant acting CEO of National Gaming Control Board(NGCB)- Allegations of misappropriation of K600,000, Abuse of Office and Conspiracy. Evidence is insufficient to commit the Defendant.

PNG Cases cited:

Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
Police v Kambian [2021] PGDC 66; DC6021 (30^th January 2021)
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Anton v Chea [2021] PGDC 131; DC6088 (14 September 2021)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Yarum v Egua [1996] N1476
Police v Dunamis [2021] PGDC 121; DC6067
Police-v-Kimisopa [2021] PGDC 76;DC6031(30^th June 2021)
State v O’Neill [2021] N9213
Hiviki v State [2015] SC 1449

Overseas cases cited:
Nil

References

Legislation

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Gaming Control Act

Counsel
Police Prosecutor: Chris Iga for the Informant
Young and William Lawyers: Philip Tabuchi for the Defendant

VERDICT ON POLICE EVIDENCE

23^rd December 2021

INTRODUCTION

NII, P. Paul Magistrate. Court’s pronouncement on whether a prima facie instance is applicably proven within the suggestion of Section 95 of the District Court Act 1963. After Defendant and Police arguments on the issue of sufficiency of evidences is considered. Defense Lawyer argued and objected to the police evidence as it is insufficient to make a case against the Defendant while prosecutor maintained his interest. The court has farsightedly honored both opinions involving to the police evidence and thus now is the decision on committal.

FACTS/PARTICULARS

1. Police information reads; the defendant is aged 49 years old and from Lafu village in Kavieng District, New Ireland Province and who was at the time of arrest was the Chief Executive Officer of National Gaming and Control Board(NGCB). Police allege that in later 2011, a project submission for Yaguan Rural Hospital with a total value for K1.2 million was submitted to the NGCB to purchase hospital equipment and on 2^nd May 2012, an amount of K300, 000 was paid direct by NGCB to Yaguan Rural Hospital bank account.
   
2. However, police allege that of the K900,000 approved for Yagum Health center, only K300,000 was paid into Yagum Health Center’s account and K600,000 was diverted to the account of Madang District Treasury. Police allege that the funds that were paid to Madang District Treasury was initially intended for Yagum Rural Hospital but Defendant allegedly allowed the funds to be diverted to funds and thus she was arrested for Conspiracy, Abuse of Office and Misappropriation.
   

CHARGES

3. Accused is charged with one count each of Misappropriation under Section 383A (1)(a), and Conspiracy under Section 407(1)(b) and Abuse of Office under Section 92(1) of the Criminal Code Act 1974, Chapter No. 262. The charges against the Defendant are moreover visible in the consequential mode:

(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.”

(3) “92(1)- 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 misdemeanour.”
ISSUE

4. The enquiry under my contemplation is whether police evidence is acceptable to commit the Defendant on the charges of Misappropriation. Abuse of Office and Conspiracy against the alleged wrongdoer.
   

THE LAW

5. The Law under Sections 94-100 of the District Court Act 1963, stretches the suitable commencement upon how the court should manage its purposes and decide on the police case. It is vital for the court to be content with police case including witness statements and documented evidence including revelations to satisfy the elements of the three (3) charges against the Defendant.
   
6. Gavara-Nanu, J, maintained in Akia v Francis [2016] PGNC 335; N6555, that committal court advances its authority by assessing evidence in the police file to certify whether it meets the elements of the offense. This standard is further applied in Police –v- Dunamis [2021] PGDC 121; DC 6067 by making reference to the legitimate upshot under Section 95 of the DCA.
   

ELEMENTS OF THE OFFENSE

7. The doctrines in Police –v-Kambian [2021] PGDC 66; DC 6021, which is further affirmed in Police –v- Medako [2021] PGDC 54; DC6011 is pertinent in my ruling. I will evaluate all evidence confined in the police file to ensure it pleases the elements of the offending charges against the Defendant.
   

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

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)[ii]

a. A person

b. who conspires with another person

c. to defraud the public, or

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

Elements of Abuse of Office under Section 92(1)[iii]

a. A person

b. employed in the Public Service who,

c. in abuse of the authority of his office does, or

d. directs to be done,

e. any arbitrary act prejudicial to the rights of another

EVIDENCE

8. The court in Police –v- Koka [2021] PGDC 53; DC6010, ruled on the significance of evidence and this attitude is appropriate in committal hearing. The count ruled that the rise and fall of police cases rested very much on the witness statements contained in the police file. The court further went on to state that: ....
   

.....“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. Prosecution evidence on the question of competence of evidence should satisfy me beyond reasonable doubt to make a case against the Defendant. Nevertheless, the defense should also provide me with convincing arguments that police evidence is deficient to proceed the case further.
   

PROSECUTION CASE

10. The court in Police-v-Kimisopa [2021] PGDC 76; DC 6031 decidedly exemplifies the constituents of state case as it comprises witness testimonies and other accepted validation holding the indictment and Record of Interviews, which therefore generates Prosecution evidence
    

Police evidence in brief

No	Names	Designation	Statements
1	Brian Kramer	Member for Madang and Minister for Justice.	He is the Complainant in allegations against the Defendant’s case who says the monies for Yagaum Lutheran Rural hospital was diverted to Madang district treasury operating account by former member for Madang, Nixon Duban after writing to the former PM.
2	Daniel Gigil Marame	Former Lecturer-Divine word university-Madang	This witness is the one who did the proposal for the Yagaum Lutheran hospital by seeking funds from the National government.
3	Belid Bahude Pitau	Senior Accounts clerk, National Polytechnic Institute, Lae, MP	Former Hospital administrator for Yagaum rural hospital. She confirmed receiving K300,000 from NGCB out of the K1.2 million funding.
4	Okam Awateng	Hospital administrator for Yagaum rural hospital	He says the hospital received equipment form the K300, 000 funding form NGCB funding but did not receive the balance of K600,000
5	Napolean Sirini	Director of Nursing Services	He says they received K600, 000 from the initial K1.2 million funding where K300,000 was used for staff housing and another K300,000 was for equipment purchase.
6	Sema Siloi	Assistant account’s clerk-Yagaum rural hospital	This witness also says the hospital received only K600,000 form the total funds approved for Yagaum Rural Hospital but the balance was not paid.
7	Mike Dadok	Board member of Yagaum rural Hospital	Witness says a former member for Madang presented a cheque of K1.2 for infrastructure program on the eve of election period in 2012 but only K600,000 was presented and not the balance of K600,000.
8	Rubad Aiyo	Carpenter- Yagaum Rural Hospital	He says he witnessed the former member for madang open responsively presented a cheque of K1.2 million of which only K600,000 was received by the rural hospital.
9	Bako Maiyak	Chairman of Law and Order (Yagaum area)	This witness confers that the former MP for Madang presented a cheque of K1.2 million of which only K600 000 was received by the hospital.
10	Jamangagga Sally	Chaplain-Yagaum Rural hospital	This witness statement is same as Bako Maiyak
11	Roshina Wari	Senior Legal Officer-NGCB	Her statement is about the process and policy of obtaining community benefits with NGCB
12	Qwentan Chollaii	First Secretary-Member for Moresby NW	He says he is the former chairman for NGCB and he received a letter from the former PM directing him to accept the proposal for Yagaum hospital without following the due process.
13	Mathew Sengian	Madang District Finance manager	He confirmed received a search warrant form police which led him and other officers to retrieve documents in relation to the payment of K600,000 to the hospital
14	Miachael Maihua	Acting Accountant-Madang District	His statement is same as Mathew Sengian
15	Emily Philip	Senior systems administrator-Madang District treasury	Her statement is in line with Michael Maihua’s statement
16	Paul Muepe	Architecture and building inspector-DoW-Madang Province	His evidence is about his involvement in the assessment of building infrastructure development using public funds
17	Paulson Undi	Accountant	His statement is about his forensic audit report into the allegation against the Defendant and other persons named including the former MP for Madang.
18	Bernard Alvin Lange	Former Provincial Administrator-Madang Province	He says he is the chief advisor to the Madang Provincial Government and a section 32 officer who signed some payments
19	Joel Simatab, Kila Danagai, Vincent Tapu ngu, Philemon Hamba and Yali Koya	Policemen	They each say they were involved in the investigations against the Defendant and also they were involved in the arrest and corroboration of the Defendant.

DEFENSE CASE

11. Defendant’s case is in her submission filed on 24^th November 2021. Mr Philip Tabuchi, Lawyer for the Defendant steered the court through its functions under Section 95 of the DCA by quoting the cases of Yarum v Egua [1996] N1476 and Hiviki v State [2015] SC 1449.
    
12. Defendant constructed his arguments in esteem to the police evidence on the case of State v O’Neill [2021] N9213 and opposed to the satisfactoriness of each witness statement. The Defendant through her lawyer opposed all the witness statements that they nosedived to inaugurate the elements of the respective charges against the Defendant. Mr Tabuchi submitted that each state witness which constitutes state evidence has failed to bond the Defendant to the charges against her. Defendant argues that none of the evidence has connected her to the allegations, Defense says most of the statements were in relation to the former Madang open MP, Mr Nixon Duban and not the current Defendant.
    

CONSIDERATION OF EVIDENCE

13. Police allege that Defendant had deceitfully applied to the former member for Madang Mr Nixon Duban K600,000 monies property of the State. In the application of Section 95 of the DCA, the allegation stated in the information should be substantiated by police evidence. The evidence in the police file must display in clear or implied terms Defendant had dishonestly or corruptly played a part in the diversion of funds to Madang District Treasury Account instead of Yagaun Rural Hospital accounts.
    
14. The current Member for Madang Hon Brian Kramer and State Minister for Justice is the Complainant in the allegations against the Defendant. Pages 16, 17, 18 and 19 of the P-H-U-B surrounds the Complainant’s statement. I have read the Complainant’s statement and found out that the statement is about how the former PM had allegedly influenced the former Member for Madang’s win which subsequently led to a fruitful by-election through an election of disputed returns in the National court through judgment in Kramer v Duban [2013] PGNC 360; N5688, which was field by the Complainant who was a runner up for Madang open in 2012 election. Complainant in the nut shell allegedly stated in his statement that monies for Yaguan rural hospital was diverted by the former MP for Madang to his own use under the directions of the former PM during the election period of 2012 to impact voters which had led to the Complainant’s loss in the election.
    
15. On 27^th March 2012, the former PM wrote to the chairman of NGCB asking for a funding of K1,2 million for Yagaum Lutheran hospital infrastructure improvement after he was presented with a project proposal and on 24^th April 2012, the chairman of NGCB, the deputy chairman and other trustee members approved K300,000 to the hospital. On 31^st July 2012, the Administrator for Yaguna Rural Hospital wrote to the former chairman of NGCB thanking him for the K300,000 they received from NGCB. On 6^th October 2012, the former member for Madang wrote to the former PM asking for the release of K300,000 and the balance of K600,000 be paid into Madang District Treasury account so that he would manage the funds from there. On 11^th October 2012, the former PM wrote to the former MP for Madang that the former PM’s chief of Staff would follow up with NGCB and have the balance paid to him. On 28^th March 2013, a partial withdrawal of K340,000 form the balance of K600,000 kept at Madang District Treasury account by the former MP for Madang.
    
16. I have read through the entire 469 pages of the police file in anticipation that I would see a letter or evidence of any discussions from the Defendant directing payment to Madang District treasury account or asking the former PM and NGCB chairman for the funds to be diverted but all in vain, I have not sighted any. Evidence shows the control of funds was between the former PM, the former MP for Madang and chairman of NGCB through the Trustee Members. The members of the Trustees are Qwentan Chollai- chairman, Gregory Melides-Deputy chairman, Ni Yumei Gragnolini-Trustee and Wandi O Yamuna-Trustee.
    

RULING

17. Defendant is charged with 3 offenses and they are Conspiracy to Defraud under Section 407(1)(b), Dishonestly Apply(Misappropriation) under Section 383A(1)(a) and Abuse of Office Under Section 92(1) of the Criminal Code Act.
    

(First Count of charge under Conspiracy to Defraud)

18. Defendant was arraigned on 31^st August 2021 and on 1^st September 2021, Police Prosecutor Chris Iga filed an application to withdraw the charge of Conspiracy to Defraud under Section 407(1)(b) of the CCA and the court upheld the Prosecutor’s application and subsequently the charge was withdrawn.
    

However, my assessment now is on the remaining charges of Misappropriation (Dishonestly Apply) under Section 338A(1)(a) and Abuse of Officer under Section 92(1) of the Criminal Code Act.

First charge

19. Police information on the charge of Misappropriation (Dishonestly Applied) under Section 383A(1)(a) of the CCA is repeated hereunder:
    

“Did dishonestly applied to the use of others namely Nixon Duban and others, property in the sum of K600,000 money belonging to the State”.

20. Police says Defendant had dishonestly applied State money to the benefit of the former MP for Madang. My assessment on evidence shows Defendant was at the time employed with NGCB as CEO but evidence shows the CEO was not a member of the Trustee and obviously had no part on the approval of the initial proposal, however, the question is, did the Defendant in her capacity as the CEO directed the payment of the balance of K600,000 to be made payable to Madang District Treasury account instead of the hospital’s account? A letter written by the Defendant to Police dated 27^th July 2020 illuminates her roles as the CEO of NGCB. The decisions to either accept or reject proposals are deliberated by a board of trustees. Evidence shows the meeting to deliberate the Proposals by Yagaum Rural Hospital was held on 24^th April 2012 in which Defendant was not present but others including nominated trustee members, the chairman of NGCB and deputy chairman were present. This means Defendant was not a party to the meeting which was held to approve the proposal. Since evidence shows Defendant was not a party, Defendant would be exempted from any subsequent activities emanated from the meeting since its genesis would have been from the meeting.
    
21. I have read the police file and shaped my judgment that there is no evidence or what so ever persuades me that Defendant dictates, directs or influences the NGCB to divert funds for the Yagaum hospital to Madang District treasury account. On this basis, it is my decision that evidence is insufficient to make a case against the Defendant for the charge of Misappropriation that Defendant had dishonestly applied K600,000 state money to the use of former MP for Madang and therefore the charge of Misappropriation or Dishonestly Apply is dismissed.
    

Second Charge

22. The second Police information on the charge of Abuse of Office under Section 92(1) of the CCA is reiterated below:
    

“ being in the public service as the chief executive officer of the National Gaming Control Board, in the abuse of her authority does arbitrary act, by facilitating K600,000 for Yagaum rural hospital infrastructure renovation and improvement project that is prejudicial to the lawful rights of the Independent state of PNG”.

23. In the second charge Police allege that Defendant while being employed as CEO with NGCB had abused her authority by simplifying the diversion of K600,000 for Yagaum rural hospital infrastructure renovation and improvement project to Madang District Treasury account thereby it was detrimental to the lawful rights of the state of PNG. There is no issue about a submission for funding was submitted to NGCB and a funding of K1.2 million was made available. Also there is no issue that a total of K600,000 of the original approved for funding was made available but the issue is the remaining balance of K600, 000 was not made available to where it was initially intended for.
    
24. Section 28(2)(a)(b) of the Gaming Control Act, delivers the roles of the CEO of NGCB. The declared provision is in the succeeding terms:
    

“28 CHIEF EXECUTIVE.

(2) The Chief Executive –

(a) shall manage the affairs of the Board; and

(b) has such other functions as are determined by the Board”.

25. The CEO’s roles are provided by the Gaming Control Act. The Law dictates the CEO’s functions and responsibilities. The CEO does not act and operates in isolation but dependable to the Regulations shall accomplish the businesses of the Board and any other activities or functions as determined or recommended by the Board. In other words, the CEO of NGCB acts as a “rubber stamp”, she only endorses and carries out orders and directions given to her by the Board. That means her activities are regulated by the Board so she cannot do things on her own but only approves authorization to the decisions of the board. This provision is evident when the board of trustees met on 24^th March 2012 to approve the proposals, Defendant was not present at the board meeting.
    
26. Although there is no direct evidence of the Defendant’s direct participation in the approval of the initial proposal for funding and diversion of funds to Madang District Treasury Account, her participation (if there were any) were deemed to be seen as being directed by the Board. Given this, I am qualified with evidence before me to enunciate that Defendant at the time was subjected to the boards authority and thus the decision to divert funds as alleged by police was a decision made by the Board of Trustees in which the Defendant was not a party. Therefore, it is my decision that Defendant while being employed as a CEO of NGCB did not abuse the authority of her office by directing payment thus it did not prejudice the rights of the State. The charge of Abuse of Office under Section 92(1) is thus dismissed.
    
27. Finally, the Complaint by Brian Kramer did not state clearly the allegation against the Defendant. A police information is lodged based on a complaint filed by a living person and thus the Complaint is replicated on the information. A summary of facts is sometimes a revised version of the complaint. The Complaint of Brian Kramer did not make a single mention of the Defendant’s name nor any slightest reference to the Defendant and the allegation but it was made against the former PM and the former member for Madang.
    
28. The court in Anton v Chea [2021] PGDC 131; DC6088 ruled that the Complainant’s statements play an important role in administration of criminal justice. The court emphasized the importance of complainant’s statements in the subsequent footings:
    

“In a case involving rape and other crimes where the victim is surviving, the victim statement should form the foremost ingredients of a police case in which other state witnesses are only to corroborate. The subject of focus is the victim statement but others are only to strengthen the victim statement. The rise and fall of a police case is determined by the strength in the victim’s statement. It is the main foundation in which police build their case upon. The main victim statement is like the stem while witness statements are like branches and leaves. If the stem is cut down, the branches and leaves will also fall because their strength and survival is through the stem.”

29. With reliability to the principles in the above case and Complainant’s failure to name the Defendant in the information and appropriately connecting her to the allegation, it raises the question as to how the information was lodged in the first place? The complaint is ambiguous and confusing to link the Defendant to the allegation. If the Complaint was imperfect, then perceptibly it will give a less upshot on the other witnesses since other statements are only to back up the Complaint statement.
    

CONCLUSION

30. I have considered the Defense submission and Police file served to the court holding state evidence and assessed both arguments carefully under Section 95 of the DCA and I’m convinced to draw my attention to Section 95(2) of the DCA. Thus, it is my decision that evidence is insufficient to make a prima facie case against the Defendant for the charges of Misappropriation (Dishonestly Apply) under Section 383A(1)(a) and Abuse of Office under Section 92(1) of the Criminal Code Act. In summary, Defendant’s submission on insufficiency of evidence filed dated 24^th November 2021 is accepted.
    

ORDERS

My Final Orders

1. Evidence is insufficient to commit the Defendant for the charge of Misappropriation (Dishonestly Apply) under Section 383A(1)(a) of the Criminal Code Act, and therefore this charge is dismissed.
   
2. Evidence is insufficient to commit the Defendant for the charge of Abuse of Office under Section 92(1) of the Criminal Code Act and therefore this charge is dismissed.
   

100. The two (2) charges against the Defendant are dismissed.
     

4. Bail money be refunded to the Defendant forthwith.
   

Young and William Lawyers For the defendant
Police Prosecutor For the State

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



[i] Criminal Code Act 1974
[ii] Criminal Code Act 1974
[iii] Criminal Code Act 1974