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Police v Kimisopa [2021] PGDC 76; DC6031 (30 June 2021)


DC6031

Papua New Guinea

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


COM NO 753-755 OF 2019
CB NO 2632 OF 2020


BETWEEN:


THE POLICE
[Informant]


AND:


BIRE KIMISOPA
[Defendant]


His worship Paul P. Nii


30th June 2021


COMMITTAL PROCEEDINGS: -Charges- One Count of Official Corruption -Section 87 (1)(b) – Conspiracy to Defraud- Section 407(1)(b)- Misappropriation of property (Dishonestly Applied)-Section 383A(1)(a)- of the Criminal Code Act 1974, Chapter No. 262. Have the Police provided prima facie satisfactory evidence unfolding to all the elements of the charges to commit the Defendant to stand trial in the National Court.


EVIDENCE: Lawful requirement for prima facie case-Existence of the fundamentals of the charges of Official Corruption, Conspiracy to Defraud and Misappropriation of property – Some elements missing while others established-Evidence is not fitting to commit the Defendant for all the charges to stand trial in the National Court. There is unsatisfactory evidence on the elements of three (3) charges and there is insufficient evidence for criminal purposes- Evidence demonstrates there is no case against the Defendant.


PNG Cases cited:


Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Police v O'Niel [2020] PGDC 51; DC5030 (1 December 2020)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
State v Konny [2012] PGNC 77; N4691 (29 May 2012)
State v Nori [2016] PGNC 258; N6447 (23 September 2016)
State v Kavo [2014] PGNC 112; N5738 (24 September 2014)
Pala v Bidar [2016] PGSC 33; SC1515 (21 July 2016)
State v. Tanedo [1975]PNGLR 395, 418
Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015)


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 2016,
Police Act 1997


Counsel
Police Prosecutor: Sgt Polon Koniu For the Informant
Mr. B Lomai, Lomai and Lomai Attorney at Law For the Defendant


DECISION ON SUFFICIENCY OF EVIDENCE


30th June 2021


INTRODUCTION


NII, Paul Magistrate. This is a decision on whether a prima facie case is demonstrated within the connotation of Section 95(1) of the District Court Act 1963, after evidence in the Police Hand Up brief and Defense case is judiciously considered. On 27th June 2021, Mr Lomai for the Defendant made an oral compliance sponsored on the Defendant’s submission on sufficiency of evidence filed dated the 17th December 2020. Defendant’s submission was pending hearing for almost five (5) months from the date of filing until it was argued. Police Prosecutor Sergeant Polon Koniu informed the court that Defendant’s co accused was committed by the Goroko District Court and hence the Defendant should be committed. Otherwise Prosecutor requested the court to pursue the police hand up brief of 24th September 2020, and make a ruling and hereafter this is my ruling on committal.


CHARGE

  1. Defendant is charged with one count each of Official Corruption infringing Section 87 (1)(b), Conspiracy to Defraud contravening Section 407(1)(b) and Misappropriation of property or Dishonestly Applied contravening Section 383A(1)(a) of the Criminal Code Act 1974, Chapter No. 262.

FACTS


  1. The subsequent particulars are derived from pages 5-6 of the statement of facts in the Police hand Up Brief that was served on the court on 24th September 2020.
  2. The Defendant Mr Bire Kimisopa who is now before this court was arrested pursuant to a warrant of arrest numerated as No. 732 of 2020. Defendant is from Kosaufa village in the Goroko District of Eastern Highlands Province, Papua New Guinea. Defendant was a former Member of Parliament representing the people of Goroka electorate.
  3. Police allege that between the periods of 3rd January 2017 and 30th April 2017, the Defendant, in his authorized capacity as the chairman of Goroka District Development Authority (GDDA), has implemented his duties as the chairman and dissolutely engaged and expedited payments in the aggregate value of K517,000, to a Tom Monemone Consultancy Services. Police allege the Defendant collaborated with a Mr. Andreas Lulu among others who produced the payment.
  4. Police allege on 4th January 2017, at Pacific Garden Hotel in Goroka, Defendant chaired a GDDA meeting characterized as meeting No 1 of 2017, where he presented an agenda of extension of University center at the Kabiufa Adventist Secondary School. Police allege, at the meeting the GDDA members had allocated K500,000 for the consultant to carry out opening work for the venture in which the said amount was to be made payable to Tom Monemone, who is also the Defendant’s Electoral staff as the Consultant for the project.
  5. Police allege, on 2nd January 2017, Defendant passed resolution for the project by misleading members of GDDA when he endorsed Tom Monemone as the consultant for the project. Police says Defendant did not follow the Public Finance Management Act, were there was no Public Service Tender Board (BSTB) and ability to Pre-Commit before the Defendant permitted the payment to the Consultancy Services.
  6. Police says although Tom Monemone did not deliver any status report of the project to the GDDA, Defendant sanctioned payments upon presentation of invoices to him, and all payments were made payable to the Consultant’s personal bank account with ANZ banking limited inside a three(3) months period, the moneys were then withdrawn in cash and consequently funds were exhausted.
  7. Owing to all this, police says Defendant had ill-treated his office by employing his electoral staff as the Consultant for the project which the Defendant has identified and approved payment. Police says Defendant had circumvented all procurement progression by approving and signing off for all payments therefore he had devised with the Consultant to defraud GDDA.
  8. Defendant was therefore arrested on 1st July 2020, for the offences of Official Corruption infringing Section 87 (1)(b), Conspiracy to Defraud contravening Section 407(1)(b) and Misappropriation of property or Dishonestly Applied contravening Section 383A(1)(a) of the Criminal Code Act 1974, Chapter No. 262. Defendant is presently on a Police bail of K1500, and follow on from here shall be my valuation of evidence regarding the three (3) charges against the Defendant.

ISSUE


  1. The Key Issue for deliberation by the court is whether a prima facie case is reasonably proven and that is whether Police evidence in the Police file is agreeable to commit the Defendant to stand trial in the National court.
  2. The Sub-Issues for consideration are whether there is acceptable evidence on each of the elements of the offence of Official Corruption, Conspired to Defraud and Misappropriation of Property (Dishonestly Applied)

THE LAW


The Law on Committal Proceedings


  1. Sections 94 to 100 of the District Court Act 1963, deliver the authentic basis for Committal Proceedings. The committal court must be satisfied that all elements of the three (3) charges are presentable so that the court will weigh each and every element to make a ruling on evidence. The court will not test the evidence to ascertain the elements of the three (3) charges but will weigh the evidence to ensure all the elements of the charges are present.
  2. His honor Gavara-Nanu J, in Akia –v- Francis[1] briefly labels the functions of the committal court that it is significant to consider that a committal court is not a trial or a fundamental enquiry where plea is either obtained or final decision on verdict is determined to find someone either guilty or not for offence under the Criminal Code Act. His honor said, it is an administrative process in which an investigation is made into an indictable offence(s) charged to see if the evidence against the defendant constituted a prima facie case or is sufficient to commit the Defendant.
  3. The central objective of committal court as described by Gavara-Nanu, J is further reinforced by Akuram, J in Yarume –v- Euga[2]. His honor said, the purpose of committal court is to gather evidence and weigh them to determine whether there is sufficient or enough evidence conforming to all the element of the allegation before an accused is committed. Both cases in Akia -v- Francis[3] and Yarume –v-Euga[4], places an obligation on the Prosecution to certify the Police file[5] encloses plentiful evidence matching all the elements of the allegation against the Defendant

Whether evidence contained in the police hand up brief establishes a prima facie case to justify a trial proper in the National Court

The Laws in the Criminal Code that institutes the three (3) charges against the Defendant is characterized below:


a) 87. Official corruption.


(1) A person who—

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

is guilty of a crime.

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


  1. 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); or

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years


c) 383A. Misappropriation of property.


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

(a) property belonging to another


is guilty of the crime of misappropriation of property


ELEMENTS OF THE OFFENCE


  1. I have specified in Police v Medako[6] that police must demonstrate all the elements of the charges. Majority of offences have two elements: mental (mens rea) and physical (actus reus), both these must be proven by police. These two (2) foremost elements of the crimes will now be synchronized into all elements of the three (3) charges against the Defendant to establish whether the Defendant has a case to answer. However, before I go deep into the elements, I must appreciate the designation of the charges laid against the Defendant. A perfect and clear-cut definition will give a detailed account to the elements of the charges. Firstly, Oxford Dictionary defines Official Corruption as dishonest or fraudulent conduct by those in power, typically involving bribery. Secondly, Conspiracy to Defraud is a secret plan by two or more people to do something illegal. Lastly, Misappropriation of Property or (Dishonestly Applied) is deceitfulness revealed in someone's character or behavior. After disseminating with the Definitions, I will evaluate all the elements of the charges conforming to the evidence in the police file. All the Element of the charges:

Official Corruption-s87(1)(b)


  1. Although the elements of Official Corruption pursuant to Section 87(1)(b)[7] is defined in Police v O'Niel[8], I will modify the elements to capture the current charge as in the subsequent terms:
    1. A person who
    2. Corruptly gives,
    1. Confers or procures,
    1. or promises or
    2. offers to give or confer,
    3. or to procure or attempt to procure to,
    4. on or for any person,
    5. any property or

benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office, is guilty of a crime.


Conspiracy to Defraud-s407(1)(b)


  1. A person who,
  2. Conspires,
  1. with another person—
    1. to defraud
    2. the public,
    3. or any person (whether or not a particular person); or

is guilty of a crime.


Misappropriation of property (Dishonestly Applied)- 383A(1)(a)


  1. A person
  2. who dishonestly applies
  1. to his own use or
  1. to the use of another person—
  2. property belonging to another

is guilty of the crime of misappropriation of property


EVIDENCE


  1. Evidence plays an imperative role in the administration of criminal justice to ensure a just and fair decision is arrived at. Evidence confined in the police file dated 4th September 2020, must satisfy the elements of the three (3) charges against the Defendant. I have well stated in Police v Koka[9] that a charge rests a mere allegation unless supported by evidence..(emphasis added)..

“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”.


  1. Prosecution evidence and Defense submission on the competitiveness of evidence in the police file must satisfy me that there is reasonable evidence meeting all the elements. If one or two of the elements are not met by Police then evidence is still deficient. The court will only put the Defendant on trial if evidence is satisfactory to establish the allegations against the Defendant. I will now proceed with Police case by assessing the Evidence:

PROSECUTION CASE


  1. Court to consider the Police Hand-Up Brief. Prosecution case is enclosed in the Police Hand Up Brief (Police File) in the form of witness testimonies and documentary evidence including Summary of facts and contents of the record of interview. They all constitute police case or evidence against the Defendant.

Witness list and Evidence in brief


  1. Hon. Henry Ame – Member of Parliament and Chairman of Goroka District Development Authority. This witness is the Complainant in this allegation against the Defendant. He is the chairman of Goroka DDA and he is the one that sanctioned and approved police investigations into the allegations against the Defendant.
  2. Paulson Undi-A senior Forensic Auditor with the Auditor General’s office. He is part of the investigation team and provides a audit report regarding the allegation against the Dependent.
  3. Dominica Songavare- She is the Finance Manager for Goroka District who received search warrant from police and she released documents regarding the payment involving GDDA funds.
  4. Warur Wagaia- he is the Branch Manager of ANZ Bank, Goroka who provides account information and bank details of Tom Monemone pursuant to a search warrant issued by Police.
  5. Vilo Wartove- He is the acting Provincial treasurer of Department of Finance, Eastern Highlands Province. He testifies signing the three(3) claims as Finanacial deligates.
  6. Daniel Tesasi-He is the acting Provincial Architecture of Eastern Highlands Province. He testifies that he has established and facilitates designs for other projects in Goroka but did not cite correspondence supporting project of PAU university branch at Kabiufa, He said there was no project, record and existence of this project by the Defendant.
  7. John Tununto- He is the former PSTB Secretary for EHP, his evidence testifies the tender procurement process. He said he was not aware of the project and has no records.
  8. Hon Kessy Malive- President of Mimanalo, LLG in EHP where Kabiufa Secondary School falls under. He testifies that he has no knowledge and existence of the project.
  9. Pastor Benny Soga- He is the former President of Eastern Highlands and Simbu mission of the Seventh Day Adventist Church. He testifies that the PNG Union mission of the SDA church and GDDA had a consultation meeting at Drean Inn in Port Moresby regarding the establishment of PAU campus at Kabiufa but there was no outcome of the meeting.
  10. Robert Butler- he is the chief Financial Officer of PNG union mission of the SDA church. He testifies that there was a meeting held in Port Moresby but there was no decision to establish the PAU campus.
  11. Fr Jan Cruba- Secretary- Department of Higher Education, Research, Science and Technology. He confirms that his office received no submission or requests to establish PAU campus at Kabiufa Secondary School.
  12. Raul Lozanno-Vice Chancellor, Pacific Adventist University. He says he did not participate in the meeting and also he has no knowledge of the existence of the project.
  13. Stanier Korarome- Principal of Kabiufa Secondary School- he says there was no project and he was not aware of it.
  14. Damake Murio-He is the Coordinating Surveyor of the EHP Department of Lands and he had no records of the project at Kabiufa Secondary school.
  15. Grace So-on-Secretary, for the Department of PM and NEC. She says there was no submission on the PAU campus.
  16. Hasley Kaipa- was the police Corroborator and Robert Ewail, arresting officer, they are policemen engaged with National Fraud and Anti-Corruption Directorate at Konedobu, NCD.

DEFENSE CASE


  1. Defense submission was in three (3) fold, first on the issue of insufficiency of evidence, second on Competency and lastly on Defective Warrant of Arrest. Will deal with insufficiency of evidence first;

Insufficiency of Evidence


Official Corruption – s 87(1)(b)[10]


  1. Defendant’s first argument is on the charge of official corruption. Defense suggestion is on deficiency of Evidence that State failed to meet the burden of proof. Defendant submits that evidence assembled in the police file (Police Hand-Up Brief) is inadequate to upkeep all the elements of the charges against the Defendant. Defendant submits there is no direct evidence the accused person gives or confers or procures any property to any person in the public service. Defense says the accused was the chairman of the Goroka DDA but it is uncertain and also no evidence that he benefit from the money. Defendant argues he was the chairman of the Goroka DDA who endorsed the GDDA Board decision to award payment of K517, 000

Misappropriation of property - s 383A(1)(a)[11]


  1. Defendant’s second argument is on the charge of Misappropriation. Defendant argues that he did not apply state funds to his own use or to the use of another person. Defendant says there is no evidence of cash withdrawal on his bank statements or funds he benefited. Defendant says, consultancy services were rendered by Tom Monemone and funds were transferred from the State to Tom Monemone. Defendant says there was no dishonesty in the application of funds. Defendant says there is no evidence to conclude that there was dishonesty on the part of the Defendant to endorse payment per invoices submitted by Monemone Consultancy Services. Defendant says his endorsement of payment per invoices submitted was not outside of his powers as chairman of GDDA.

Conspiracy to Defraud- s 407(1)(b)[12]


  1. Defendant submits he did not conspire or collude with another person to defraud the State. Defendant says there is no evidence from anyone either direct or indirect regarding conspiracy. Defendant says, there is no evidence from any witness demonstrating a case of fraudulent since all payments were made in compliance with the due process under the DDA Act 2014 and PFMA 1995. Defendant argues the payments were made per the GDDA Board’s decision in which he only endorsed the payment. Defendant says there is no evidence from police that he conspired or colluded with someone to benefit from the K517, 000. Defendant says the money was transferred to Tom Monemone for Consultancy services; he did not benefit anything from it and therefore submits the charge of conspiracy lacks strength and authority to meet all the elements.

Competency issue


  1. Defendant’s second argument is on the issue of Competency. Defendant submits the audit report was done by Paulson Undi, an employee of the office of the Auditor General. Defendant argues the audit report is illegal and unsanctioned. Defendant argues Police based on this unlawful and unofficial audit report by gathering all police evidence including bank and witness statements among others. Defendant says, Paulson Undi was arrested by Police for Official Corruption for his part in connecting an unauthorized audit report. Defendant says subsequently a sum of K389, 900 was made payable to Optimax Forensic and Advisory Solutions for providing the audit report to Goroka DDA.
  2. Defendant submits the Audit report by Paulson Undi is undated and not endorsed by the auditor general and hence all information contained or that were obtained based on the audit report should be considered unlawful for purposes of my ruling on committal. Defendant argues Paulson Undi’s illegal engagement with GDDA infringed Section 70(1) of the Public Finance Management Act 2016, because his engagement with GDDA was not approved and endorsed by the Auditor General. Defendant hence submits the evidence before this court be inadmissible or perhaps dismissed since it was gathered and provided through a proscribed means which is not subsidized in Law.

Defective Warrant of Arrest


  1. Defendant’s third arguments is on the authenticity of the Warrant of Arrest issued by this court for the Defendant’s arrest. Defendant argues the Warrant of Arrest was defective since the materials affixed in the information on the warrant do not sustain the charge per Section 87(1)(b).[13] Defendant contends the content of the Warrant of arrest contravenes this rule. I will recite the wordings in the warrant of arrest in the following terms:

“Being employed in the public service namely an elected member of National Parliament for the Goroka Open electorate charged with the performance of any duty by virtue of that office corruptly confers and directed payment for Tom Monemone Consultancy Services from the District Development Authority Accounts purposely for the proposal of an extension of university center at Kabiufa Adventist Secondary school to the total value of Five Hundred Seventeen Kina(517,000) in the discharge of your duties.”


  1. Founded on this, Defendant submits that the suitable provision under which the Defendant would be properly charged is Section 87(1)(a)(i) and (ii) of the CCA. Defendant say “Official corruption” as organized in Section 87 of the CCA describes the relationships between two parties. Defendant says Section 87(1) (a) of CCA deals with a person in a position of authority in a public service holding public office and Section 87(1)(b) of the CCA deals with a person who is not in a position of authority. Defendant therefore argues that he was in a position of authority and therefore he was subject to Section 87(1) (a) and not Section 87(1) (b) of the CCA.
  2. Based on the above, Defendant submits that police failed to exercise due care and attention when implementing the Defendant’s arrest by using a malfunctioning and ineffectual warrant of arrest on an erroneous charge that cannot stand in court. Defendant hence submits for the court to dismiss the proceedings against the Defendant.

CONSIDERATION OF EVIDENCE


Police evidence


  1. Police have submitted their evidence in the Police hand-up brief. Police evidence entails statements by the former member for Goroka open Hon Henry Ame, who made up as the chairman of the former Goroka DDA after the Defendant’s term. The Audit report of Paulson Undi, an Auditor with the Auditor General’s office forms the foundation of the investigation involving the arrest and charge of the Defendant. There are also other statements from certain employees of Goroka DDA comprising the LLG President of Mimanalo. Other evidences are from Pastors and people who work with/for the Seventh day Adventist faith and its educational services and also from Father Jan Cruba, the Secretary for Department of Higher Education, Research Science and Technology. There is also evidence from people who work with the government to implement government services and projects.
  2. Submission on sufficiency of evidence is not a legal requirement under the Laws but for the interest of justice parties are given an opportunity to deliberate/argue on the evidence before a decision on committal is arrived at and this has been a reliable practice in this jurisdiction. On 27th May 2021, Police made no submission in response to the arguments raised by Defense. Police nevertheless, asked the court to rely on the Police hand-up brief and make a ruling on evidence. Police informed the court that a co-accused in the case was committed by the Goroka District Court and thus the same position should be rational to the Defendant.
  3. The evidence provided by Police designates that a co-accused in the Defendant case named Tom Monemone has registered a business under the name Tom Monemone Consultancy Services. The Business was incorporated on 30th January 2017. On 4th January 2017, the GDDA members at the Goroka DDA meeting number 1 of 2017, reflected on 8 agendas, agenda No. 2 was on “Kabiufa Adventist Secondary school –Proposal for an extension of a university center” and agenda No. 3 was on “Engagement of special consultant to prepare a project submission for the proposed university center at Kabiufa Adventist Secondary school”. It was from that meeting that an amount of K517, 000 was approved as startup capital for the agendas itemized as agenda No 2 and 3 of the meetings of 30th January 2017. Subsequently, Mr Monemone submitted three (3) invoices dated 02/01/2017, 06/03/2017 and 28/03/2017 and the said amount was paid to Mr Monemone in three (3) installments until the entire amount was paid off. The Defendant who was then the Chairman of GDDA was arrested by police on allegation of Official Corruption, Conspiracy to Defraud and Misappropriation of property (Dishonestly Applied). All the allegations are established by the CCA. I will determine the first allegation:

(First charge)


  1. Official Corruption- Before I asses the evidence, I will deal with Mr Lomai’s challenge on the warrant of arrest dated 24th June 2020, that it was flawed and defective in law. Mr Loma’s argument is the offending charge under Section 87 of the CCA deals with a connection between two (2) people. He submits section 87(1)(a) deals with the actual person in authority and section 87(1)(b) is the person to whom the person in authority conspired to untruthfully misuse/steal money with. I will therefore reexamine this law again:
    1. 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 anything done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

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

is guilty of a crime.

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

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


  1. I cannot merely assume the purposive approach of the Legislators here but I must carefully study the wordings of each sub-provision to appreciate the intent of the law. Although Mr Lomai challenged the matters of the information in the warrant of arrest dated 24th June 2020, these are words that announce the subject charge but they are not part of the charge inscribed in the CCA. Mr Lomai for the Defendant initiated his argument on the case of Pala v Bidar[14] that:

“Police had failed to exercise due care and attention to the rights of the Defendant and hence appeal upheld”


  1. The condition for Pala v Bidar[15] is that all criminal charges must be underwritten in Law. The SC upheld the appeal because the charge was not recognized by Law. The Appellant was arrested for instituting proceedings in OS No. 115 of 2014 for declaration of taxation for legal bills made payable to Paul Paraka Lawyers. In other words, the Appellant was arrested for filing court proceedings. The court said the act of filing court proceedings was not improper. Court further ruled it was incompetent of being a criminal act. However, in the current allegation Police allege that the Defendant at the time of being a MP and chairman of GDDA had abused his powers and corruptly authorized the payment to Tom Monemone. This allegation is defined by the CCA and hence the case of Pala is not applicable in the current circumstance.
  2. Having said that I must look at whether the Defendant was appropriately arrested under Section 87 of the CCA. Defendant was arrested under Section 87(1) (b) of CCA, but Defendant argues he should have been arrested under Section 87(1) (a), since it deals with person in authority in public office. Although warrant of Arrest was only issued for the charge of official corruption under Section 87(1)(b) of CCA, Defendant was also arrested for the charges of Conspired to Defraud and Dishonestly Applied. It will be unlawful to decide on the faith of all charges on the defectiveness of one charge. If I ruled that the Defendant was unlawfully arrested for official corruption and dismissed the proceedings then where will the other 2 charges hang? My consideration on one charge will not have a concurrent effect on all the charges but will look at each charge on its own merit and decide thereon. Therefore, the issues regarding the appropriate charges will be addressed when I proceed to considering the elements of the offending charges corresponding to evidence in the Police file.
  3. Moreover, Lawyer for Defense raised issue on the court’s Jurisdiction to deal with committal matters. The court noted the arguments raised which are central and guide to arriving at a fair and equitable outcome in the administration of criminal justice. The case of Wartoto v State[16] is one such case where the law places an obligation on the committal courts to make sure the process of criminal justice from the initiating process to committal hearing and trial in the national courts must not be abused by police. The court in this matter accentuated the committal court powers by:

“41.....It would also be appropriate to deal with any abuse of process at the investigation state and at the District Court level by the District Court.


42....The District Court is obligated to properly follow all the required steps in the process. With the assistance of the parties and any counsel, the District Court undertakes a trial in a manner that is fair to both sides and in a way that is impartial, with all the rules of practice and procedure,


43...The committing magistrate needs to be satisfied that the formal requirements of the provisions under consideration are met and that there is a prima facie case for the accused to stand trial in the National Court..............”


  1. The court is sanctioned to examine the criminal process from being abused. Therefore it is the court’s duty to make sure its findings are based on the rule of law. I appreciate this argument because it will guide the committal court from achieving a fair and equitable decision in the circumstance. A decision that is based on evidence and nothing else.
  2. Did the Defendant involve in official corruption when he endorsed the payment that was approved by members of GDDA to be made payable to Mr Monemone? I have defined official corruption as dishonest or fraudulent conduct by those in power. His Honor Makail, J in State v Konny[17] simplifies the purpose why the law was enacted by parliament to introduce the charge of “official corruption”. His honor’s objective for the law is..... (emphasis added)..

...“Created by Parliament to deter public officials from using their positions for personal gain or advantage”...


The objective of the law must be read together with its classification to meet all the elements of the offence of Official corruption.


  1. Evidence presented by Police witness indicated Defendant was chairing the GDDA meeting No 1 of 2017 dated 4th January 2017, and in that capacity he was identified as the Defendant. There were total of 11 members present in the meeting including the Defendant. GDDA members present at the meeting including other people interviewed must deliver evidence that the meeting was conducted by the Defendant to deceitfully benefit from the K517, 000, that was paid to Mr. Monemone. The names of people involved in the meeting are:
    1. Hon Bire Kimisopa - Chairman GDDA-Member for Goroka Open electorate
    2. Andreas Lulue - a/Chief Executive Officer-GDDA
    3. Haro Abori - Manager Goroka Urban LLG
    4. Wilson Apio - Goroka Urban LLG
    5. Vincent Waringi - Goroka DDA Youth Rep
    6. Runo Gise - Electoral Officer-office of the MP for Goroka
    7. Ismael Sabak - Manager Gahuku LLG
    8. Cliffson Isaiah - Manager Mimanalo LLG
  2. Jeffery Horoso - District Treasurer
    1. Tony Iso - Goroka DDA Chairman
    2. Utoro Ekesae - Special Project Officer-GDDA
  3. The GDDA meeting was to introduce and deliberate on eight (8) different agendas and of the 8, 2 agendas are the subject of this proceedings. The GDDA meeting was not only conducted on a bounded space but was attended to by a total of 11 GDDA members.
  4. On page 4 at paragraph 4 of the meeting minute noticeably displays that all GDDA members approve to involve Mr Tom Monemone for the consultancy work. In order to meet the qualification under Makail, J’s description of Official Corruption, evidence must fulfill all the elements which I adapt from the offending charge that a person corruptly gives or discusses or promise to offer or acquire for any person any property.
  5. The table below exhibits how evidence is sustaining each elements:
NO
Elements
Indication (X/✔)
Met /Not met
1
A person
Yes
Yes, to the extent that he was the chairman of GDDA
2
Corruptly gives
No
There is no evidence of wicked or immorality involved
3
Confers or procures
No
There is no direct evidence of discussions between Tom Monemone and the Defendant.
4
Promise
No
There is no direct evidence of agreement or undertaking between Tom Monemone and Defendant.
5
Offer to give
No
There is no evidence of deal or bargain between the Defendant and Tom Monemone
6
Procure or attempt to procure
No
There is no evidence to acquire the money
7
For any person
No
There is no evidence that the money was approved for the Defendant
8
Any property
No
There is no evidence of property
9
Benefit on account of such act
No
There is no evidence of benefits
10
On the part of the person
No
There is no evidence that Defendant benefited
11
Public services
Yes
Yes, Money was from the government
12
Holding a public officer
yes
Yes, the Defendant was holding a public office

  1. I have characterized all twelve (12) elements of the offence of official corruption, and of the 12, police have meet only tthree (3) elements but not the other 9 elements. The only evidence I have that the Defendant corruptly involved is his part in chairing the GDDA meeting as a public office holder. Evidence must be undeviating and must bond to the offence. Chairing the GDDA meeting is isolated to the offence given the amount of people involved and the meeting environment. Evidence validated there was exposed accountability and translucent from the transaction that led to the passing of resolution in GDDA meeting No 1 of 2017. Evidence of official corruption must not be assumed but be proven with each elements of the offence being met. Defendant is identified to be the Chairman of Goroka DDA and was holding a public office at the time but evidence designates that he did not solely/directly influences the meeting to favor way for his advantage or alternatively to be made payable to Mr Tom Monemone so that he would benefit later. Therefore, Makail, J’s description does not fall in the existing category. The proof delivered by police is deficient to meeting all the elements of this offence and hence there is insufficient evidence for the first charge.

(Second Charge)


  1. Misappropriation of property- Did the Defendant involve in misappropriation in property by dishonestly applying the amount of K517, 000, when he endorsed the payment to Tom Monemone? The description of this offence as I have already alluded to above is deceitfulness or dishonesty exposed in someone's character or behavior. Police evidence offered must meet all the elements of this allegation.
  2. Before I proceed to the second charge; I will address the issue on competency raised by the Defendant. Defendant raise the issue of competency that he was wrongly arrested and charged based on an illegal, unsanctioned and unauthorized audit report by a Paulson Undi. Defendant appears to raise an imperative issue about the eminence of evidence gathered by police. I believe it is unlawful for a non-policeman to conduct criminal investigations for purposes of arrest, interrogation and charge. Section 197(2) of the Constitution, provides only police personnel can arrest, lay, investigate and withdrew charges against offenders of laws. Nevertheless, a civilian can act only pursuant to Section 17 of the Police Act 1996 upon delegation of powers by the Commissioner of police. However, these are issues where I have no jurisdiction to deal with. It raises the question of credibility and trustworthiness of evidence. These issues will only be tested through trial proper in the National court if the Defendant is committed, I am not here to test the evidence but my function under Section 95(1) of the District Court Act, is only to determine the sufficiency of evidence. Therefore, the issue on competency is inappropriate at this stage.
  3. I will now go back to the charge of Misappropriation of Property or dishonestly applied. As I have specified earlier, there must be undeviating evidence between the Defendant and Tom Monemone that the amount of K517,000 was misappropriated by the Defendant. That is to say Defendant personally advanced from the money and evidence should suggest this. The court in State v Kavo[18] establishes direct evidence against the Defendant and found him guilty because he was a recipient of public money that was credited to his personal name and account. Another case of direct misappropriation of property is State v Nori.[19] The court found the Defendant guilty because he bought a vehicle through his employer’s money but personally benefited. Did the Defendant openly benefited from the K517, 000?
  4. The statement of Hon Henry Ame,–(undated) the Defendant’s successor that on 15th June 2018, he laid an official compliant of Misappropriation against the Defendant with Police. He says he laid the complaint for the best interest of the people of Goroka electorate. The Audit report of Paulson Undi at pages 12 and 13 displays between 27th February 2017, and 31st February 2017, there were a total of K304,000 withdrawals on Tom Monemone’s account. The audit report specified at page 13 there were a lot of other withdrawals on the same week and in the other subsequent weeks. Paulson Undi at page 14 says there was a mass withdrawal of moneys which raises suspicion and he suggested for a thorough investigation as there may be money laundering. Mr Undi in his findings recommended that the Defendant, Tom Monemone and Andreas Lulue be criminally prosecuted for conspiring to steal money. Moreover, the statement of Wagaila Warur only demonstrates his compliance to the search warrant by printing Tom Monemone’s bank account declarations. All other statements from state witnesses are unrelated regarding the payment but it’s for activities which are or may be related to the purpose of the money. I also have evidence from Pacific Adventist University and Kabiufa Adventist Secondary school but their evidences are inconclusive as in so far as my interest in the evidence proximately leading to the payment of K517,000 or soon thereafter is concern.
  5. The Audit report from Paulson Undi validates there were mass withdrawals of money by Tom Monemone but for whom and what purpose those monies were withdrawn is not expressed. None of the witness announcements have specified to me that the withdrawals where completed for the benefits of the Defendant or is it that the withdrawals were done for the Defendant because he approved the payment? Only in meeting the elements of the offence of Misappropriation of property by evidence will answer this question. Circumstantial evidence and inferring given situations will not stretch existent justice but will draw uncertainty and question the veracity of impartiality.
  6. The table below exhibits how evidence is sustaining each elements:
NO
Elements
Indication (X/✔)
Met /Not met
1
A person
No
There is no suggestion on who benefited
2
Dishonestly applies
No
No, there is no evidence of dishonesty or misleading
3
To his own use
No
There is no evidence that Defendant used the money
4
To the use of another person
No
There is no evidence that Defendant intended the money for the use of another.
5
Property belong to another person
No
There is no evidence that the subject money was a property of another person.

  1. I have stated five (5) elements under this charge but the evidence presented in the police hand-up brief does not fulfill each of the elements. There is evidence of money being paid to Tom Monemone but the evidence presented to me does not state clearly that Tom Monemone withdrew all the money for the Defendant’s use. Police have not produced to me the Defendant’s bank statement sustaining me that on the date of withdrawal by Monemone, the same or nearest was made deposited to the Defendant’s account. Neither of the testimonies professed by Police quantified they caught or saw the Defendant and Tom Moneomone inside the bank or exchanging money somewhere. Assumption and estimation given correlated circumstance is unhealthy in the administration of vigorous and robust justice. Justice in the committal courts must be directed through sufficient evidence that contents each of the elements of the offence.
  2. Given this, I am unable to decided and categorize the Defendant as the person who fraudulently applied State money to his own or to the use of Tom Moneone and thus I find insufficient evidence for the second charge.

(Third Charge)


  1. Conspiracy to Defraud-Now I will decided on the third and final charge of Conspired to Defraud- I have defined Conspiracy to Defraud as a secret plan by two or more people to do something illegal. Moreover, the expounded definition is by Prentice, DCJ (as he then was) in State v. Tanedo [1975]PNGLR 395 at page 418, that:

“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).


  1. I must be satisfied that there is evidence between two or more people approve to do something conflicting to the rule of law. In the current case, there must be evidence that Defendant agrees to pay the money to Tom Monemone through the deal of setting up a PAU University center at Kabiufa Adventist Secondary School. The Defendant is the chairman of Goroka DDA. He approves and endorses activities for Goroka electorate.
  2. On 2nd January 2017, Defendant approved K165,000, for Tom Monemome by signing on the invoice and further encrypted as “ please pay As Soon As Possible” . On the 24th January 2017, Defendant approved another payment of K150,000, for Tom Monemone, on an invoice dated 23rd January 2017, bearing Andreas Lulu’s signature, the acting CEO of GDDA. On 6th March 2017, the Defendant approved another invoice of K180, 000, dated 28th February 2017, and had encrypted as “please proceed for payment”. The final payment was approved by the Defendant on 28th March 2017, through an invoice dated same. These are all moneys’ paid to Tom Monemone for consultancy work in establishing PAU campus at Kabiufa Adventist Secondary School.
  3. In here there are three(3) people involved, one being Tom Monemone as the project initiator, Defendant as the Chairman of GDDA who approves payment and Andreas Lulu, the acting CEO of GDDA who endorsed Monemone’s invoices. Did the three(3) conspire to steal from K517,000? On 10th January 2017, Mr Monemone wrote a letter to the Defendant to approve K150,000, to commence ground work for the project. Mr Monemone stated on the first paragraph of his letter as I quote...

” As per our discussion, I am pleased to submit for your approval a cost summary on the ground phase on the proposed exercise”. (End of quote)


  1. What discussion is Mr Monemone referring to when he said “as per our discussion”? Was it a discussion to approve payment or for the establishment of PAU campus at Kabiufa? At this point in time, it is unclear to answer this and thus will enquire further. On 28th February 2017, Mr Andreas Lulue, the acting CEO for GDDA wrote to the Defendant requesting to endorse Mr Monemone’s second payment of K180, 000. In the letter the acting CEO said the Department of Higher Education Science, Research and Technology, Eastern Highlands Simbu mission of the Seventh Day Adventist Church and PNG Union Mission of SDA have all responded very well about the project. Pastor Benny Soga of the EH-Simbu Mission in his statement to police said there was a meeting concerning the establishment of a PAU campus at Kabiufa which was conducted at Dream Inn hotel in Port Moresby in which he attended. Robert Butler, a chief financial officer of the SDA Church in his letter to Police dated 17th October 2018, confirmed there was a meeting in Port Moresby regarding the establishment of PAU campus at kabiufa in which he attended. On 17th April 2019, the Vice chancellor of PAU also provided declaration to Police that the Administrative Committee of PAU have participated in discussions to engage in the project .The secretary for the Department of Higher education Science, Research and Technology Professor Fr Jan Czuba said he did not receive a project submission on the proposed project. Finally, the statement of Stainer Korarome, the Principal of Kabiufa Adventist Secondary school said he heard people on the streets discussing about the project but to date the actual project is not on the ground.
  2. From these evidence, I am satisfied the discussions between Mr Monemone and the Defendant was about the proposed project. This evidence is supported by the statements of people who attended the meeting in Port Moresby and therefore I have evidence to conclude that the project to establish a PAU campus at Kabiufa is real. I have evidence to convince myself that the invoices for money expended were for the ground work or preliminary work for the project. In the preliminary stage you won’t actually see the project but you will hear rumours of projects going on and that actually what happened here when police witnesses says they attended meetings for the project. You don’t have to see the actual project running on the date of awarding of contract or approval of projects but you will have meetings, consultations, quotations, designs, etc and this actually what happened here.
  3. The Defendant approves payment which falls under GDDA. There is evidence that the Defendant in his capacity as the member of Goroka approved three (3) different invoices for Tom Monemone which was facilitated by the acting CEO of GDDA. There is evidence that it is not the Defendant’s responsibility to check and follow up on the progress of projects in his electorate, such accountabilities rests with the acting CEO of GDDA. However, the letter written by Robert Butler, the Chief Financial Officer of the SDA church dated 17th October 2018, to Police, at paragraph 2 says “Mr Biri Kimisopa was promoting the project”. Basically referred to the meeting which he attended for the establishment of the PAU campus at Kabiufa. The Defendant instituted the project for the good of his electorate; it was a District Development initiative for his electorate, but did the Defendant deliberately promoted the project so that money assigned for the project be shared between him and Tom Monemone? To answer this question, there must be undeviating or truthful evidence of conspiracy between the Defendant and Tom Monemone to steal K517,000.
  4. The only uninterrupted evidence is where the Defendant approved the payment by stating on the invoices as “please pay ASAP”. There must be direct evidence that the Defendant committed the alleged act of conspiracy to defraud. In offences such as wilful murder, Murder, Armed Robbery and Rape, circumstantial evidence is permissible in the absence of direct evidence but in the case of conspiracy to defraud, the evidence must be direct. If circumstantial evidence is to be considered, then the facts and events must all be connected from one another to the Defendant and the offence. Assumptions to connect missing facts and evidence are unhealthy in the face of criminal justice.
  5. The evidence must link to the offence. The inference that Tom Monemone is the Defendant’s electoral officer is not evidence in itself to warrant that they colluded; the evidence should be more than that. None of the police witness says they actually caught the Defendant and Tom Monemone inside the Bank or in some secluded locations. The implication that Tom Monemone is the Defendant’s electoral officer is not satisfactory to say they colluded nor conspired to steal K517, 000. The Defendant in his position as GDDA approved the invoices and that was his authorised duty.
  6. Moreover, there are no records of letters written by the Defendant to neither E.H Provincial treasury nor finance for payment. The only letters written for processing of payment were from Tom Monemone and the acting CEO of GDDA. From the evidence presented, it is obvious that the Defendant was interested in the project about forming a university centre at Kabiufa while Tom Monemone and the acting CEO of GDDA were interested in the K517,000. The acting CEO and Tom Monemone’s actions are very obvious where one facilitating the payment for another while both of them appears to have used the Defendant for their gains.
  7. The table below exhibits how evidence is sustaining each elements:
NO
Elements
Indication (X/✔)
Met /Not met
1
A person
No
No, Defendant is not identified
2
Who conspires
No
There is no direct evidence of conspiracy
3
With another person
No
No evidence
4
To defraud the public
No
No evidence to defraud the public
5
Or any person
No
No evidence to defraud the People of Goroka District

  1. On the offence of Conspiracy to Defraud, I have insufficient evidence to satisfy myself that the Defendant has secretly communicated with Mr Moneomne and acting GDDA to use K517,0000, money belong to GDDA. Police evidence in the PHUB has not met all the elements of this offence and hence I have insufficient evidence for the third offence.
  2. Police Prosecutor made an opening submission that since Tom Monemone and the former acting CEO of GDDA were committed, the Defendant be committed. I have subsequently taken this into account; nonetheless, after careful thoughtfulness of the PHUB or the police file, I am pleased that much of the evidence gather in the police file has got less to do with the Defendant but more to do with Tom Monemone and the acting CEO of GDDA. Moreover, each allegation and its conforming charges must be considered on its own merit and on a case on case basis. I cannot just commit the Defendant just because others are committed, that is prohibited on the face of justice. Defendant must and should be committed by evidence against him and not on the evidence of others.

RULING


  1. For the first charge; there is insufficient evidence to commit the Defendant for the allegation of Official Corruption pursuant to Section 87 (1)(b) of the Criminal Code Act, as Police evidence do not meet all the elements of the charge. Moreover, for the Second charge; there is insufficient evidence to commit the Defendant for the allegation of Misappropriation of property (Dishonestly Applied) pursuant to Section 383A (1)(a) of the Criminal Code Act, since police evidence do not meet all the elements of the charge. Finally, for the third charge; there is also insufficient evidence for the allegation of Conspiracy to Defraud- pursuant to Section 407(1)(b) of the Criminal Code Act, because evidence in the police file do not meets the elements of this offence. Defendant is on a bail of K1500, understandably K500 each for the three (3) allegations. Bail must also be taken into account

FINAL ORDERS


  1. The three (3) criminal Charges against the Defendant are dismissed.
  2. Defendant is discharged from Bail obligations.
  3. Defendant’s bail is refunded.

.


.


Lomai and Laomi Attorneys For the defendant
Police Prosecutor For the State


[1] [2016] PGNC 335; N6555 (24 August 2016)
[2] [1996] PGNC 24; N1476 (6 September 1996)
[3] Supra
[4] Supra
[5] The Police Hand Up Brief-it contains all police evidence including Record of Interviews, confessional statements and other documents for the police case
[6] [2021] PGDC 54; DC6011 (31 May 2021)
[7] Criminal Code Act 1974, Chapter 262
[8] [2020] PGDC 51; DC5030 (1 December 2020)
[9] [2021] PGDC 53; DC6010 (31 May 2021)

[10] Criminal Code Act 1974, Chapter 262

[11] Supra

[12] Supra
[13] Supra
[14] [2016] PGSC 33; SC1515 (21 July 2016)
[15] Supra
[16] [2015] PGSC 1; SC1411 (27 January 2015)
[17] [2012] PGNC 77; N4691 (29 May 2012)
[18] [2014] PGNC 112; N5738 (24 September 2014)
[19] [2016] PGNC 258; N6447 (23 September 2016)

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