Titus v Kiso [2021] PGDC 79; DC6036 (18 June 2021)

DC 6036

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM 162, 163 & 164 of 2021
BETWEEN

DETECTIVE SERGEANT DOROTHY TITUS

Informant

AND

GLEN KISO
Defendant

Lae: L Wawun-Kuvi

2021: 31 March, 30 April, 28 May, 4, 9, 16 & 18 June

CRIMINAL LAW- COMMITTAL PROCEEDINGS- Misappropriation –Whether evidence is sufficient?

CRIMINAL LAW- PRACTICE AND PROCEDURE- INFORMATIONS- Duplicity and Ambiguity- Charging of two offences-Hearing completed-What is the appropriate process- Particulars-Information not particularised-Hearing completed- What is the process- Essential legal elements not stated-What is the effect?

CRIMINAL LAW - PRACTICE AND PROCEDURE - INFORMATIONS - Variance between words used and section under which charge created - Words to prevail – Public Finance Management Act 1995, Ss 68, 106A(2) and Public Finance Management (Amendment) Act, No 5 of 2016, ss 84, 106, 113.

Cases Cited
State v Wartoto [2017] PGNC 70; N6695 (29 March 2017)
Kamit v Aus-PNG Research & Resources Impex Ltd [2007] PGNC 4
N3112 (2 February 2007)
Michael Winmarang v David Ericho and The State (2006) N3040
The State v James Yali (2006) N2989
The State v Saul Ogerem (2004) N2780
Gregory Kasen v The State (2001) N2133
Felix Bakani and OPIC v Rodney Daipo (2001) SC659
Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PNGLR 75
John Worofang v Patrick Wallace [1984] PNGLR 144
Jacob Hendreich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea [1979] PNGLR 1

Overseas Cases
John L. Proprietary Limited v. Attorney –General [1987] HCA 42; (1987) 163 C.L.R. 508
Johnson v.Miller [1937] HCA 77; (1937) 59 C.L.R. 467

References

The Criminal Jurisdiction of Magistrates in Papua New Guinea, New South Wales Institute of Technology Sydney, N.K.F O’neill and R.N Desailly, 1982

Legislation
District Court Act
Public Finance Management (Amendment) Act, No 5 of 2016
Public Finance Management Act 1995
Summary Offences Act

Counsel

Police Prosecutor Chief Sergeant Galus Gambaia

Lawyer for the Defendant, Mr Timwapa Dawidie

18 June 2021

RULING ON SUFFICIENY

L Wawun-Kuvi, Magistrate:

1. This is the full reasoning for the decision handed down on 18 June 2021.
2. The defendant is charged as follows:
   1. Abuse of Office contrary to section 92 of the Criminal Code Act, Chapter 262.
   2. Misappropriation contrary to section 383A (1) (a) of the Criminal Code Act, Chapter 262.
   3. Failure to ensure compliance contrary to section 106 (2) of the Public Finance Management (Amendment) Act, No 5 of 2016.
3. There are preliminary issues that I raise in relation to the charges of Abuse of Office and the charge of failing to comply with provisions of the PFMA.

Abuse of Office

4. Section 92 of the Criminal Code Act, Ch 262 states:

“(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.”

5. The information charges:

Being employed in the Public Service as the Chief Executive Officer of the Finschaffen District, did abuse his position by facilitating claims as section 32 Officer by approving a total of One Million Four Hundred & Eighty Thousand Kina (K1, 480, 000.00) belonging to the Finschaffen Urban Local Level Government Council purposely for the Gagidu Market Project which was then diverted to the Finschaffen Development Corporation which is in breach of the Public the Finance Management Amendment Act 2016 and prejudicial to the people of Finschaffen District.

6. Other than being ambiguous, the information is bad for duplicity. Section 92 creates two offences, i.e., the person has to either do the act himself or direct an act to be done.
7. The information states that the defendant facilitated claims and also approved the claims.
8. I had indicated at the outset that there were issues in relation to the charge; however the prosecution decided to maintain the charges in its present form.
9. Furthermore, the evidence does not disclose that the monies belonged to the Finschaffen Urban Local Level Government Council. The monies for the Gagidu Market were State monies given by the Department of Provincial and Local Level Government Affairs to the District Administration earmarked for the Gagidu Market.
10. The charge is dismissed for being ambiguous, duplicitous and being insufficient.

Public Finance Management Act

11. The Public Finance Management (Amendment) Act, No 5 of 2016 is the amending legislation. The Principal legislation is Public Finance Management Act 1995.
12. Section 106 of the amending Act amends section 101 of the principle Act. Section 101 relates to Gazettal of Committees. The relevant provision is section 113 which amends the principle legislation creating the provisions of section 106A, 106B and 106C. The relevant provision for the present purposes is section 106A.
13. The charge should read: “contrary to section 106A (2) of the Public Finance Management Act 1995 (amended).
14. It may be contended that is fatally defective, however section 30 of the District Court Act 1963 supported by case law^[1] makes it clear that as long as the statement of offence is worded according to the offence provision, it is sufficient in law. As Bredmeyer, J said in John Worofang v. Patrick Wallace^[2] “If there is any variation between the words of an information and the section number, the words prevail. After all a defendant pleads guilty to the words of the charge put to him and not to the section number.^[3]
15. Section 106A (2) provides:

“A person who in whole or part, omits or fails to comply with a duty, obligation or requirement of this Act is guilty of an offence”

16. The statement of offence refers to section 84(s68) (1) (b) (d) as the duty that the defendant failed to comply with.
17. Similarly, section 84 of the amending legislation repeals section 68 of the principal Act and replaces it with the new section. The statement of offence should properly refer to section 68(1) (b) (d).
18. Section 68 (1)(b)(d) provides:

“(1) A Provincial or Local Level Government shall-

...(b) do all things necessary to ensure that all payments out of its money are correctly made and properly authorised and

(d) establish and ensure compliance with internal control procedures; and....”

19. The statement of offence in the information reads:

Whilst being employed by the Finchaffen District Administration as the Chief Executive Officer (CEO) partly failed to comply with the requirements of this Act pursuant to section 84 (S 68 (1) (b) (d), namely to do all things necessary to ensure that the payment of K2, 000, 000.00 out of it’s monies were accordingly made and properly authorised.

20. It is evident that the charge only relates to section 68(1) (b) and not section 68 (1) (d).
21. I had indicated to the prosecution that the charge required some amending. The prosecutor stated that he was satisfied with the information. I went on to state that police where at liberty to amend at any time and left it at that. The prosecution decided to leave the charge in its current state. Mr Dawidi was more than accommodating and offered no objections. This matter has reached ruling. No attempts were made to rectify the charges.
22. As is stands the charge is poorly drafted and is too ambiguous. Whilst it appears that the legal elements are present, in my view the police have not properly identified the nature of the K2 million. Specifically the source and intended purpose of the K2 million.
23. By stating the particulars the informant ensures further compliance of the Constitutional requirements by ensuring that the charges are reasonably clear to the defendant.
24. Particulars have been described by Dixon, J, in Johnson v. Miller (1937)^[4] as follows

A defendant is entitled to be apprised not only if of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The Court hearing a complainant or information for an offence must have before it the means of identifying with the matter or transaction alleged in the document the matter of the transaction appearing in the evidence.”^[5]

25. The High Court of Australia in John L. Proprietary Limited v. Attorney –General [1987]^[6] was a case where the information failed to particularise the nature of the offending. There the Court in holding that an information was bad stated:

“42) "One can point to statements of authority which lend support for the view that [The Justices Act 1902] did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence...the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.

43) ...

44) As has been seen, the information in the present case failed to identify an essential factual ingredient of he actual offence.... That failure was not a merely technical one. It was fundamental." (519-521)”

26. Other than failing to provide the factual elements, the information is fatally flawed in that it does not create an offence known to law. Section 68 refers to the responsibility of the Provincial and Local Level Government and not a person or in this case the District Administrator. It also does not create a criminal offence.
27. The information does not identify the specifically the duty of the District Administrator and how he did not comply with that duty.
28. It is dismissed.

Misappropriation

29. The charge against the defendant reads:

Did dishonestly applied to his own use and to the use of others money amounting to one million four hundred and eight thousand (K1, 480, 000.00) property belonging to the Independent State of Papua New Guinea.

30. Whilst there were lengthy submissions by both sides, I find that the only issue is whether there is sufficient evidence showing whether the money was applied to its intended purpose.
31. As stated by Manuhu, J in State v Wartoto [2017]^[7]

“26. Firstly, the offence of misappropriation was not provided for under the Code originally. Stealing was the only offence then for matters of this nature. The problem was that the prosecution had difficulty dealing with misapplication of funds by persons authorized to hold such funds, especially public officials. This led to the enacting of the misappropriation provision to deal with offences of this nature. When a person is charged for misappropriation, therefore, how he took possession of funds is not the core issue. The core issue is how he dealt with the funds.”

32. This is not an enquiry into guilty or innocence. My role is simply to ascertain whether there is sufficient evidence for the defendant to stand trial.

Were there funds given to the Finschaffen District Administration?

33. Yes.
34. The documents obtained from the Provincial and Local Level Government Affairs, the Finschaffen District Development Authority (FDDA) and the Finschaffen Development Corporation Limited (FDC) confirm that a sum of K2 million was allocated for the project.
35. Although the police have charged the defendant for misappropriating K1.48 million, the actual money allocated for the market was K4 million. K2 million came from the Department of Provincial and Local Level Government Affairs and K2 million from the National Fisheries Authority.
36. It is interesting to note that there appears to be no explanation as to what happened to the funds given by the National Fisheries Authority. The primary focus of this case pertains to the K2 million from the Department of Provincial and Local Level Government Affairs.

What was the purpose of the funds?

37. The building of the Gagidu Market.
38. There is no dispute that the K2 million allocated by the Department of Provincial and Local Level Government to Finschaffen District Treasury was for the construction of the Gagidu Market.

Who was responsible for building the Market?

39. The Memorandum of Agreement (MOA) signed between FDDA and FDC on 9 June 2020 states that the Agreement is for the construction, management and monitoring of the market.
40. The Finschaffen Development Corporation (FDC) is the business arm of the Finschaffen District Development Authority.
41. The District Administrator, the Defendant, is the head of both bodies.
42. In the MOU the project value is stated as K2 million. The project completion was 10 months.
43. The payment schedule submitted by the FDC is as follows:
    1. Site preparation –K600, 000.00- month 1 and 2
    2. Market Building Complex- K1.3 million- month 3 and 4
    3. Amenities-K300, 000.00- month 5 and 6
    4. Shops-K350, 000.00-month 4 and 5
    5. Public Carpark-K250, 000.00- month 4, 5 and 10
    6. Service Carpark-K250, 000.00-month 6 and 7
    7. Plumbing and Septic system-K300, 000.00- month 7, 8 and 9
    8. Perimeter fencing-K150, 000.00-month 10
44. There are obvious adjustments because the original request was for K3.5 million reduced to K2 million. Why it was reduced it is unknown when the evidence establishes that K4 was paid. In any event what the above submissions show is a road map on what should have been expected as each month passed after the monies were allocated to FDA.

Were funds paid to the Finschaffen Development Corporation (FDC)?

45. Yes.
46. Finschaffen District Development Authority paid the K2 million into the Finschaffen Development Corporation Account between 21 and 29 May 2020. Police decided to charge only K1.48 million because of the cheque receipts but upon close inspection of the bank statement, it can be clearly seen that the balance of K520, 000.00 was also deposited.

Was a market built?

47. No.
48. All relevant police witnesses are residents of Finschaffen and attest to the fact that there is no market standing in Finschaffen.
49. The witnesses’ statements were given in either January or February 2021. The relevance of this is because FDC as per the MOA provided a scope of works indicating that the project would take 10 months. The funds were allocated in May 2020 and therefore a fully operational market should have been standing by March 2021 by FDC’s own calculations.
50. Bai Dongbiang the ward councillor statement dated 22 January 2021 states that back filling and compacting only happened after police investigations This was only recently.

Is the money still there?

51. The bank statement of the Finschaffen Development Corporation reveals that by 31 December 2020 the balance remains at K1, 522.32.

Who was responsible for those funds?

52. The evidence in the police file establishes that the Defendant as the District Administrator was responsible for the funds.
53. He is both the head of the Finschaffen District Development Authority and the Finchaffen Development Corporation.
54. The proper appropriation of funds rests ultimately on him.

What is the conclusion?

55. There were monies paid, in fact K4 million. K2 million of NFA monies are unaccounted for and do not form the basis of this charge.
56. K2 million from the Department of Provincial and Local Level Government Affairs was paid and left unaccounted as there is no market.
57. The project submissions said that the project would be completed in 10 months. The money was paid, the account is empty and there is no market.
58. I find that the evidence is sufficient to establish elements of the charge of misappropriation.

Section 96

59. Section 96 of the District Court Act was put to the defendant. He was given time to speak to his lawyer. Defendant stated that he fully appreciated and understood the requirements and elected to remain silent. He did not sign.

Section 100

60. I have considered all the evidence in totality and find that there is sufficient evidence to commit the defendant to stand trial in the National Court.

Orders

61. The Orders of the Court are as follows:
    1. The information for Abuse of Office contrary to section 92(1) of the Criminal Code Act is dismissed for being ambiguous, duplicitous and for insufficiency.
    2. The information for Failing to Comply with a duty contrary to section 106A(2) of the Public Finance Management Act 1995 (amended) is dismissed for failing to disclose an offence.
    3. The Defendant is committed to stand trial in the National Court on the charge of Misappropriation contrary to section 383A (1) (a) of the Criminal Code Act, Ch 262.
    4. The Defendant shall appear at the National Court on 5 July 2021 at 9.30 am for call over.
    5. The Defendant’s bail is extended to the 5 July 2021.
       

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Dawidi Lawyers

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^[1] Kamit v Aus-PNG Research & Resources Impex Ltd [2007] PGNC 4; N3112 (2 February 2007), Cannings J;Michael Winmarang v David Ericho and The State (2006) N3040, Cannings J; The State v James Yali (2006) N2989, Cannings J; The State v Saul Ogerem (2004) N2780, Lay J; Gregory Kasen v The State (2001) N2133, Kirriwom J; Felix Bakani and OPIC v Rodney Daipo (2001) SC659, Supreme Court, Gavara-Nanu J); Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PNGLR 75, Jalina J; John Worofang v Patrick Wallace [1984] PNGLR 144, Bredmeyer J; Jacob Hendreich Prai and Otto Ondawame v An Officer of the Government of Papua New Guinea [1979] PNGLR 1, Saldanha J
^[2] [1984] PNGLR 144 at 145
^[3] See also Gregory Kasen v. The State [2001] PGNC 64; N2133
^[4] [1937] HCA 77; 59 C.L.R. 467 at 489
^[5] See also N.K.F O’neill and R.N Desailly, The Criminal Jurisdiction of Magistrates in Papua New Guinea, New South Wales Institute of Technology Sydney,1982, p. 2.21.
^[6] HCA 42; (1987) 163 C.L.R. 508
^[7] PGNC 70; N6695 (29 March 2017) at paragraph 26