In the matter of Andrew Kumbakor [2003] PGLT 5; N2363 (8 May 2003)

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[IN THE LEADERSHIP TRIBUNAL APPOINTED UNDER SECTION 27(2)(A) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP]

AND IN THE MATTER OF A REFERENCE BY THE PUBLIC PROSECUTOR UNDER S. 27(2)() OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND IN THE MATTER OF THE HONOURABLE ANDREW KUMBAKOR, MEMBER FOR NUKU
(THE LEADER)

Waigani : Justice Salamo Injia (Chairman)
Senior Magistrate Lawrence Kangwia (Member)
Senior Magistrate David Maliku (Member)
2003 : May 8th

LEADERSHIP TRIBUNAL - Member of National Parliament - Sixteen (16) counts of misconduct in office –– Misuse of Motor Vehicle entitlements and Gaming Board funds – Onus and Standard of Proof – Proper role of the Tribunal – Insufficient evidence to sustain charges – Leader found not guilty on all 16 counts – Constitution ss. 27 and 29; Organic Law on Duties and Responsibility of Leaderships, ss. 5 (1), 6 (1) - (2), 13(a), 27 (4); Gaming Machine Act 1993, ss. 67 and 68.

BY THE TRIBUNAL: The Leader is the member for Nuku Open in the National Parliament. He is charged with 16 counts of misconduct in office which fall into three(3) categories. These are:

The relevant section of the Constitution and the Organic Law on Duties and Responsibilities of Leadership under which these charges are brought are reproduced in full in Schedule "B" hereto

The Statement of witnesses and other documents contained in the Statement of Reasons prepared by the Ombudsman Commission and tendered by the parties and admitted into evidence by the tribunal are contained in Schedule "C" hereto. There were two parts to the Statement of Reasons – the investigation report and opinions of the Ombudsman Commission and copies of documents obtained in the course of investigation. The former documents do not form part of the evidence before this tribunal whereas the latter do.

The statements of witnesses and other documents tendered by both parties and admitted into evidence by the Tribunal is contained in Schedule "D" hereto.

The following witnesses were summoned to give evidence by the Tribunal and they gave oral and documentary evidence:

We begin by re-stating some general basic principles governing the manner in which this tribunal should determine the matters before us.

The duties of this tribunal are prescribed by s. 28((1)(2) of the Constitution and s. 27(4) of the Organic Law on Duties and Responsibilities of Leadership (hereinafter abbreviated OLDRL). The tribunal does not sit as a court of law to hear and determine criminal offences in accordance with strict and technical formal rules of evidence and procedure which are designed to safeguard the liberty of persons charged with criminal offence enshrined in the Constitution, such as the presumption of innocence of an accused person until proven guilty. The tribunal’s duty is to "investigate and determine cases of alleged misconduct in office referred" to it (s. 28(I)(9)). It must make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper" (s.27(4)). But it is a quasi - judicial tribunal and as such, it must act judicially and in compliance with the principles of natural justice, see s. 59 of the Constitution s. 27(4) of OLDRL Also see in re James Eki Mopio [1981] PNGLR 416. It is not clear from the Constitution and OLDRL as to who bears the onus of proof but in relation to the standard of proof, it was decided by the Supreme Court in Re James Eki Mopio that the standard of proof is above the civil standard of proof which is on the balance of probabilities, but close to the criminal standard of proof, which is proof beyond reasonable doubt. The Supreme Court said at p. 121:

"In our view there is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice. In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance of preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial.

In relation to the duty to act judicially in terms of proof of facts, the Supreme Court adopted principles enunciated in various common law cases, which state that the tribunal’s decision must be based on reliable, clear and convincing evidence or material, from which findings of fact and reasonable inferences can be drawn therefrom, and not based on mere suspicion or speculations.

As to the onus of proof, In Re James Eki Mopio and other reported cases are silent on which party carries the burden of proof. There is no express provision in the Constitution or the OLDRL on this point. But it can be inferred from s. 29 of the Constitution that the Public Prosecutor is charged with the duty to prosecute the leader before the tribunal and it carries the onus of proof on behalf of the State. The tribunal’s duty to "inquire" or "investigate and determine" the matter referred to it is not intended to confer on the tribunal the traditional prosecutorial function of the Public Prosecutor: Bonga v Sheehan [1997] PNGLR 452. The tribunal’s function is to simply inquire into and determine the truth or otherwise of there allegations, without resort to technical rules of procedure and evidence. Its powers include summoning relevant documents and witnesses to give evidence and/or relevant documents which may be over-looked by the parties. That is the basis upon which we participated actively throughout the proceedings in asking questions of witnesses called by the two parties and summoned four(4) other witnesses of our own motion.

There is one other important jurisdictional point to make. The scheme of provisions of the Leadership Code and the OLDRL is that the tribunal’s jurisdiction to inquire into the matter before it is defined by reference to the matter "referred" to it by the Public Prosecutor. In the past as in the present case, the Public Prosecutor developed the practice of presenting formal charges of misconduct in office, which made reference to the relevant duty in the Constitution and OLDRL and the relevant factual particulars. These charges are accompanied by the Statement of Reasons prepared by the Commission as required by OLDRL, s. 27(2). It is our view that the tribunal’s inquiry is restricted to those allegations of misconduct in office as pleaded in the referral documents. The tribunal itself has no power to alter or re-draw those allegations or charges as it pleases.

As to the scrutiny of the evidence, the evidence must support the wording of those charges in order to sustain the charge. And because the "consequences of the most serious kind" flow from the allegations, the standard is indeed a high one: In re James Eki Mopio, ante. For it would constitute a denial of natural justice for a leader to be called upon or expected to answer an allegation which does not form part of the charges "preferred" against him.

It is not contended that all the charges before us, except counts 9 and 10, are criminal in nature and the standard of proof is close to the standard applicable in a criminal case. The counts allege criminal offence of receiving monies by false pretence and/or misappropriation of public funds designated for special purposes. Dishonesty or fraudulent intent on the part of the leader are common elements of these charges.

In relation to documentary evidence contained in the Statement of Reasons, Mr. Pato attempted to raise issues of admissibility pursuant to Bonga v Sheehan [1997] PNGLR 452. But the documents were admitted into evidence by consent and the issue of admissibility does not arise. However as we intimated during submissions we will determine their relevance, reliability and weight when we assess the whole of the evidence before us.

Counts 1-8 relate to motor vehicle allowances, to which the leader was entitled to receive under the Salaries and Remuneration Committee SRC) 1997. The prosecution’s witnesses who gave oral evidence are Fabian Muip, Fidelis Kanawo and Joseph Koeri. The documents contained in the Statement of Reasons were tendered through Mr Cannings. Oral evidence for the leader was given by the leader, Renagi Kila, Ano Pala and Adam Wangu.

There is no dispute that the Leader was entitled to receive these motor vehicle allowances under the SRC Determination dated 25/3/97 as amended on 01/01/99 (see exhibit BB.1 and BB2). Under the SRC Determination, such allowances are payable fortnightly as part of salary. In the case of advances, the Leader is entitled to receive advance payments for up to a maximum of 30 month period, in which case the leader is liable to repay the State by way of fortnightly salary deductions.

There is also no dispute that the advances except the advances for Counts 7 and 8 (K8,000.00), were requested directly in writing by the leader and released by the Emolument Section of the National Parliament and were all picked up by Mr. Muip. The K8,000.00 was requested in writing, by Mr. Muip on the leader’s behalf.

There is also no dispute that all these advances were repaid by the leader through fortnightly salary deduction’s and that at the end of his term in 2001, he did not owe the State any monies.

The dispute between the parties in relation to all these counts 1-8 inclusive is whether the leader obtained the cheques under a false pretence that he was going to use these funds for designated purpose and whether he applied the funds to his own use or benefit or for the benefit of his relatives or his employee in Mr. Muip. In relation to counts 7-8, there is the additional issue of whether the leader actively instructed Mr. Muip to request those funds.

By way of amplification, we discuss each of the counts below to put the disputed facts in proper perspective.

In relation to counts 1-2, (K17,696.14) it is not disputed that the leader requested, by letter, from the Emolument Section of the National Parliament a cheque for K23,500.00 in favour of Active Engineering Ltd, on a quotation for that amount supplied by that Company, to pay for a new Toyota Hilux for the leaders’ official use. A cheque for K17,696.14 was made out in favour of Active Engineering and picked up Mr Muip and paid to Active Engineering Ltd. However, the deal was cancelled and a refund cheque of K15,926.53 (less 10% of K1,769.61 for storage fees) was issued by Active Engineering Ltd in favour of the leader. Mr Muip collected this cheque and deposited it into the leader’s cheque account at PNGBC – Port Moresby Branch. Later Mr Muip made cash withdrawals using pre—signed cheques left with Mr. Muip by the leader. The cash was used for other purposes.

The dispute is over whether the leader instructed or authorised Mr Muip or Active Engineering to cancel the deal and use the proceeds for unrelated purposes. The leader denies any knowledge of the deal being cancelled and payouts being made out and places the entire blame on Mr. Muip. However, Mr. Muip says he cancelled the deal, collected the refund cheque deposited it into the leader’s account and made cash withdrawals and paid them out as instructed by the leader. Among them, he paid K11,000.00 to some rascals in Port Moresby to pay for a presumably stolen Toyota Hilux which was never delivered to him.

In relation to counts 3-4, it is not disputed that the leader by letter requested K2,900.00 to pay for repair costs for three(3) ministerial motor vehicle based in Port Moresby. A cheque for this amount in the leader’s name was issued and picked up by Mr. Muip. Mr Muip cashed this cheque.

The dispute is over how the money was used. Mr Muip’s evidence is that he gave this money to the leader who played pokies with it in Port Moresby. The leader denies this and says he authorised Adam Wangu and Mr Muip to settle the repair costs.

In relation to counts 5-6 (K41,748.88) it is not disputed that the leader arranged with Mr Muip to purchase Mr. Muip’s Nissan Patrol, for use in his electorate in Nuku. The motor vehicle was in Port Moresby. The leader requested, by letter, the sum of K55,000.00 based on a quotation for K55,000.00 supplied by Mr. Muip, which was attached to the letter. A cheque for K41,748,86 was issued in Mr Muip’s name, which Mr Muip picked up and deposited into his own account. But the vehicle ownership was never transferred to the leader and the leader never picked up the vehicle.

The dispute is over what happened to the money. Mr. Muip says all the monies were paid to the leader or his relatives as directed by him. The vehicle was in the Pit-Stop Repairs workshop for repairs and the workshop’s fees of some K6,810.80 were paid off by funds provided by a friend of his from Daru who purchased the vehicle when the workshop sold the vehicle on tender to recoup its costs. The leader denies he instructed Mr. Muip to cancel the deal.

In relation to counts 7-8 (K8,000.00), it is not disputed that Mr, Muip, requested by letter, on behalf of the leader, this money to repair and register several electoral vehicle operated by the leader. A cheque was issued in the name of the leader. Mr. Muip collected this cheque and deposited in the leaders PNGBC account Port Moresby account and later made cash withdrawals. He used K2,000.00 of this money for designated purposes. What is disputed is that the leader denies any knowledge and authorisation of the issue of this cheque and its subsequent use. Mr. Muips says he dispatched this money for other purposes upon directions from the leader including K3,000.00 which he sent to the leader in Vanimo through Mr Garo of Air Nuigini.

As to the leader’s obligation to account to the Emoluments Section of Parliament as to how he spent all these motor vehicle allowances, the undisputed evidence is of Mr Ano Pala (and his sub-ordinate Mr Renagi Kila), is that the Emolument Section is the head, is the administering authority for salary and allowances due to members of Parliament under the SRC Determinations. His evidence is that apart from the SRC Determination which they use, there are no administrative guidelines issued by either his office or the SRC to require leaders to account for expenditure of advances . They have no interest or control over how the funds are actually applied by the leader; their only interest being to re-coup that advance by way of salary deductions. They do not require the leader to account for actual purchase of goods or services with receipts, to ensure that the funds are actually used for their designated purpose. For instance, if a motor vehicle deal is cancelled, there is no requirement for leaders to arrange for the refund of the advance to be paid back to the National Parliament or if the deal is completed, for the leader to obtain and provide receipts.

The prosecution’s case is substantially based on the evidence of Mr Muip. The defence case is substantially based on the leader’s evidence. And so our findings on the disputed facts very much depend on the creditability of these two key persons and our acceptance or rejection of their evidence. It is a question of whom to believe. The issue of credibility does not arise in relation to the undisputed evidence or admitted facts set out above. After listening to these two witnesses supported by other witnesses such as Mr. Fidelis Kanawo and Adam Wangu, and observing their demeanour when they gave evidence, and after receiving submission by counsel, we make two vital observations on their character.

First, the relationship between Mr. Muip and the leader in the material period can be best summarised as one of political marriage between two arch rivals which enjoyed a mixture of high degree of trust followed by deep distrust, suspicions of deceit and complaints against and each other which resulted in reporting criminal activities to the Police. As a result, criminal proceedings were instituted by the Police in the District Court and later when that did not succeed, the leader was reported to the Ombudsman Commission which resulted in the present proceedings.

The leader and Mr Muip come from the Nuku electorate but from different areas and are unrelated by blood or as the evidence shows, by marriage. In the 1997 general elections, both leaders contested the seat. The leader won the seat whilst Mr Muip came fourth. After that election, in an effort to lure Mr. Muip’s political support base, the leader employed him on his personal staff when the leader became a Vice-Minister. The leader trusted him to such an extent that he entrusted him with managing his both official and personal affairs. The leader entrusted him with the responsibility, inter alia, of following up and collecting motor vehicle allowance cheques from the Emolument Section of the National Parliament, banking the cheques in the leaders private bank cheque account operated at PNGBC, Port Moresby Branch, and even authorised him to make cash withdrawals on his account by leaving with him pre-signed cheques. It appears Mr Muip was well acquainted with officers of the Emolument Section and PNGBC bank officers in Port Moresby and other officers of banks in Port Moresby with which the leader or he himself had dealings with, so that the cashing of cheques issued in the name of the leader were not a problem.

Relationship between them turned sour when the leader terminated Mr. Muip’s service in 1999 over claims that the proceeds of cheques, in particular the cheque for K8,000.00 (Counts 7-8) was obtained and cashed by Mr. Muip without his knowledge and approval. This was followed by a series of police investigations into the alleged misappropriation of the same monies, the subject of the present charges of misconduct. Mr. Muip was a key police witness. However, charges before the District Court at Waigani were dismissed at the committal stage. This was followed by a further investigation by the Ombudsman Commission on the same funds which are now the subject of these proceedings. Mr Muip was the key witness for the Ombudsman Commission and went on to give evidence before us.

It is clear to us that Mr Muip is the only complainant over these monies. No one else including the State represented by the Emolument Section of Parliament complained to Ombudsman Commission. In fact the Clerk of Parliament Mr Ano Pala and Mr. Renagi Kila have came to this tribunal and gave evidence in support of the leader. Both men saw nothing wrong with the manner in which these allowances where requested for and the payments made, and subsequent accounting of them in terms of recouping the advances by way of salary deductions on the leader’s motor vehicle allowance. They said the leader repaid all the advances when his last term as member expired.

Also of great interest is the fact that after the Ombudsman Commission completed its investigations and referred the leader to the Public Prosecutor for prosecution, it was time to go to the poll in the 2002 general elections. Mr. Muip contested that election against the leader which the leader won and according to the leader, Mr. Muip fared badly.

Secondly, "money" they say is the root of all evil. No one seems to trust anyone when it comes to "hard cash". People tend to spend cash belonging to themselves or held in trust on behalf of others, lavishly and quickly, and when required to account, go to extensive lengths to give excuses of all kinds.

In the present case, the leader has admitted that he acted foolishly or "stupidly" to use his own word, in allowing Mr. Muip a free reign on his personal bank account. The leader has offered no explanation of how the monies were actually spent by Mr Muip, except to say that he did not benefit from those funds. As for Mr. Muip, he has tried to give some account of how the money was spent. But his explanation stands in deep contrast to that of the leader’s explanation because he said he did not benefit from those funds, all the money were used for the leader’s benefit or for the benefit of his family members as directed by the leader. So the question is one of whom to believe.

It is against this backdrop that the credibility of these two men and the evidence they gave will have to be assessed and determined.

In determining the credibility of these two witnesses we consider two important factors. They are the witnesses’ demeanour .and reliability of their evidence. In relation to Mr Muip:

There are several instance of fabrication of evidence and tampering with receipts and letters by Mr. Muip, either on his own or in concert with others in order to have the funds released or to account for expenditure (see Exhibit "I" (leaders letter to PNGBC) and Exhibit "B.1" receipt issued by Pit-Stop Engineering). His evidence is full of inconsistencies and contradictions and at variance with his previous sworn statements to the police and the Ombudsman Commission in vital areas. He certainly did not survive vigorous cross examination from defence counsel and questions from the tribunal."

Many of these inconsistencies contradictions and fabrication in his evidence are set out by Mr. Pato in his written submissions on p. 4-7; 29 and 30. It suffices for our purposes to set out a few instances.

But the leaders Bank Statement (Exhibit) shows that the cheque of K15,926.53 was deposited on 19 January 1998; only K4,900.00 of this deposit was withdrawn on that day and the K11,000.00 was withdrawn on 30 January 1998. And there is a big difference in time between 16/1/98 to 30/1/98. There is no other independent evidence to show that Messrs Joe Kia, Chris John and Mr. Bgairo exist and they issued the receipt. He who admits doing business with crooks and thieves must necessarily be one himself and cannot be trusted. The evidence all points to Mr Muip in fabricating this receipt to explain the whereabouts of the K11,000.00. There is also no independent evidence, such as documents issued by the leader authorising Active Engineering to cancel the deal, refund the cheque, have it paid into his account, and cash withdrawals made and spent as explained by Mr. Muip.

By 5/3/98, however his cheque account was in arrears by K6,718.78. Mr. Koeri said the debit was transferred to his other loan account and the account was closed; the final balance at the time of closing being K0.00. He said Mr Muip did not make any cash deposit in that amount to clear his debit. Mr Muip who gave evidence before Mr. Koeri said, the K6,718.78 was a cash deposit he made to clear his account, the money coming from the sale of one of his private motor vehicle. Once again, this evidence was false.

We find that Mr. Muip’s credibility as a truthful witness has been completely tarnished and therefore his evidence on the disputed facts cannot be accepted. We find that he had clear interest in the outcome of the proceedings and motive to give false evidence. In relation to all the counts from 1-8 there is no other independent evidence, documentary or oral, including evidence adduced in cross-examination of the leader, to support Mr Muip’s assertion that the leader instructed or authorised him to apply the proceeds of the cheque to the leader’s benefit, as explained by Mr. Muip. There is also no evidence from either Mr. Muip or any other person including Mr. Ano Pala and Mr. Renagi Kila that the leader submitted false claims for advances under the pretence of using it for official purposes and the processing of the same.

The sworn and unsworn statements of Mr Muip supplied to police and the Ombudsman Commission which are before us are more detailed then his oral evidence in relation to the leader’s instruction to Mr Muip on the use of these monies. But since the leader denied any such instruction before us we are of the view that it is not safe to accept these statements.

There are other statements before us from witnesses who supplied statements to the Police in the District Court proceedings which tend to support Mr. Muip story. But given the leader’s dispute on those matters, we do not consider it is safe to rely on them. Those witnesses should have been called before us and their statements tested before we accept them as part of the evidence for the prosecution.

Then there is evidence from prosecution witness Fidelis Kanawo that out of the refund cheque for K15,926.53 issued by Active Engineering, he was given K4,900.00 by Mr Muip upon instruction from the leader to settle Hotels bills at the Granville Hotel. His written statement which was tendered by consent (Exhibit G) is not contested by the leader.

But given the risks associated with handling hard cash on hand and Mr Muip’s pivotal role in the whole episode and in the absence of any evidence and receipts from the Granville Motel, we are unable to find that the leader had knowledge of the deal with Active Engineering being cancelled and authorised Mr Kanawo to receive that money from Mr. Muip, and pay Hotel bills. Mr. Kanawo’s credibility is also questionable because of his dealing with Mr. Muip.

On the other hand, the leader’s evidence was subjected to able and vigorous cross examination by Mr. Kaluwin. His evidence and his demeanour was not destroyed, except the leader’s apologetic admission of his stupidity in permitting Mr. Muip to have a free hand in controlling the leaders bank account, from which no real adverse findings on his credibility can be made.

For these reasons, in relation to counts 1 we conclude that Mr. Muip is an untruthful witness whose evidence on the disputed facts cannot be accepted. We reject his evidence and find that Mr. Muip used all these monies for own purposes and not for the benefit of the leader or his relatives. We accept the leader’s evidence that the use of these monies by Mr. Muip was not authorised by him.

The duties affected by Count 1 are those in s. 27(1) and (2). We consider the factual particulars pleaded in this count listed conjunctively under Clauses (i)-(v) are intended to be read as whole and in not isolation. We consider the factual particulars in Clause (iv) and (v) form the main factual allegations of misconduct. We find that even though the undisputed facts prove the particulars in Clause (i) and (ii), we find the disputed facts in Clauses (iii), (iv) and (v) not proven to the required standard. Therefore, the main factual allegation of misconduct not have been proven by the prosecution, we find the leader not guilty of this count.

In relation count 2, the duty affected is s. 5 (1) of the OLDRL. We consider the factual allegation not proved in that we have found that there is no independent evidence other than Mr. Muip evidence and Mr Kanawo evidence, both of which have been discredited, to show that the leader allowed Active Engineering to refund to him K15,926.53 and that he did benefited from this payment. In any case we do not think s. 5 (1) of the OLDRL applies to this type of situation where a leader accepts payment of his own entitlements. This provision applies to leaders who receive additional side benefits as reward for performing his official duties as a leader for which he is receiving a salary and allowances from the State.

In relation to Counts 3-4, the weight of the evidence as to how the money was used to meet workshop repairs of the leaders 3 vehicles also favours the leader. Although Mr Kaluwin submits the evidence of the leader and Mr. Adam Wangu lacks specificity and receipts to support the claims, given our findings on Mr. Muip’s credibility, and in the absence of any other independent evidence such as from various workshops, we are unable to find that the K2,900.00 was not applied by Mr. Muip and Mr. Wangu for its designated purpose.

In relation to count 3, the duty affected is s. 27 (1) and (2) of the Constitution. The factual allegations are listed conjunctively listed in Clauses (i) - (iv) and these are intended to be read as a whole. The basic allegations of misconduct are set out in Clauses (iii) and (iv). Even though the undisputed facts prove the facts alleged in s. (i) and (ii), we find the disputed facts in Clauses (iii) and (iv) not proven. Therefore we find the leader not guilty of this count.

In relation to count 4, the duty affected is s. 5 (1) is the OLDRL. We repeat what we said in relation to count 2. We find that Mr. Adam Wangu’s evidence supports the leader’s evidence. We find the leader not guilty of this count.

In relation to count 5 we reject Mr. Muip’s evidence and accept the leader’s evidence as to how these monies were spent by Mr. Muip without his knowledge and approval.

The duties affected are in s. 27 (1), (2) and (3) of the Constitution. The factual allegations are listed conjunctively under Clause (i) - (iv) and these are intended to be read as a whole. The basic allegations of misconduct are set out in Clause (iv) - (vi). Whilst we find the factual allegations in Clause (i) - (iii) proven by the undisputed facts, the disputed factual allegation under Clause (iv) - (vi) have not been proven to the required standard. We find the leader not guilty of this count.

In relation to count 6 the duty affected is s. 5 (1) of the OLDRL. We repeat what we said in count 2 in relation to the appropriateness of this charge. We also find basic factual allegation of instructing Mr. Muip to withdraw the money and give it to him for his personal use not proved. We find the leader not guilty on this count.

In relation to counts 7-8, there is no documentary evidence to show that the leader instructed Mr. Muip to request this payment on his behalf or authorised the Emolument Section to raise the payment. The Emolument Section should never have issued this cheque on the strength of Mr. Muip’s request. Therefore, we are unable to find that this payment was obtained under the leader’s instruction.

In relation to count 7 the duty affected is s. 27 (1) and (2) of the Constitution. The factual allegations are conjunctively listed under Clauses (i) - (iv). The basic allegations of misconduct are set out Clauses (ii) - (iv). We have found that this payment was not requested for, received and used for the leader’s benefit. Therefore we this charge not proved to the required standard. We find him not guilty of this count.

In relation to count 8 the duty affected is s. 5 (1) of the OLDRL. We repeat what we said in count 2 about the appropriateness of this charge. Further we find the allegation of K6,000.00 to the leader’s own use and benefit not proved. We find him not guilty on this count.

These two charges were primarily premised on the basis that Mr Fidelis Kanawo was a brother-in-law. The prosecution evidence at its highest form Mr. Muip was that Mr. Kanawo was married to the leader’s aunt but this was denied by Mr. Kanawo. According to the ordinary English definition of brother-in-law, as the charge is worded, the evidence does not support these charges. A brother in-law is someone who is married to ones brother or sister. It seems to us that the prosecution does not seriously pursue these two counts. Therefore we find the leader not guilty on these two counts.

C. COUNTS 11, 12 AND 13 CHEQUE FOR K50,000.00 FROM THE NATIONAL GAMING CONTROL BOARD

The facts in respect of allegations 11, 12 & 13 are that the leader wrote several applications to the National Gaming Control Board seeking assistance for various projects in his electorate.

In June 1999 the leader received a Cheque No. 088-943 payable to him in the sum of K50,000.00. The leader having in mind that he had initiated some projects at his electorate which included the Nuku Electorate road construction, set aside the K50,000.00 towards that project. This road construction and maintenance project was awarded to Swanita Ltd of Mt Hagen.

The leader having received that cheque of K50,000.00 attempted to deposit it into Swanita’s Mt Hagen Account No. 6000-104561 but was rejected due to what the leader told the Tribunal as "3rd Party Issue". The leader then deposited the cheque of K50,000.00 into his Port Moresby private account on the 18th June 1999.

The leader then withdrew K45,000.00 from the K50,000.00 and deposited it into Swanita Mt Hagen account leaving K5,000.00 into his personal account in Port Moresby on the 18th June 1999.

As for the K45,000.00, the facts are that it was expended on mobilisation and transportation by Swanita of plants and equipment from Mt Hagen to Lae and shipment to Nuku for road construction and maintenance.

Other costs which were incurred with the K5,000.00 were travel tickets, accommodation etc. for Mr Peter Komboni, Mr Paul Komau and Mr Nandawo for travel to Port Moresby to see the leader regarding the Nuku road construction projects.

The issue is whether the purpose for which the leader had expended the K50,000.00 are purposes stipulated under Section 68 of the Gaming Machine Act of 1993. (hereinafter referral to on the "Act")

In respect to the K45,000.00 the prosecution submitted that the purpose for which it was expended to, being that it was paid to Swanita, a private company, was not a purpose stipulated under Section 68 of the Act.

The prosecution also submitted that the balance of K5,000.00 was also expended on purposes not stipulated under the Act, Section 68, and was put to personal use by the leader or alternatively it was expended on costs by which the Swanita benefited on. The prosecution further submitted that it is highly suspicious for the leader to deal with a mysterious company based in Mt Hagen to purchase plant and equipment and then transport them to Lae and ship to Nuku Electorate.

The prosecution urged the Tribunal to find the leader guilty of misconduct in office under Section 27 (5) (a) of the Constitution. The prosecution also urged the Tribunal to find the leader guilty of misconduct in the office under s. 5 (1) of the Organic Law on the Duties and Responsibilities of Leadership. Finally the Prosecution submitted that the leader is guilty of misconduct in the office under Section 13 (a) of the Organic Law on the Duties and Responsibilities of Leadership.

The defence does not deny the receipt of the K50,000.00 by the leader. The defence submitted its explanation of how the leader expended the K50,000.00 as shown in Document No. 109, of the Statement of Reasons, page 222 and by his oral evidence which was tested in cross-examination. The leader having received the cheque payable to him attempted to deposit that money into the Swanita’s Mt Hagen account (see Document No. 89, Statement of Reasons, page 156, and Document No. 90, Statement of Reasons, page 156, a letter to Manager – South Pacific Bank, Waigani dated 16th June 1999 by (Mr Kumbakor). The transaction was refused for involvement of a 3rd party. This transaction was on the 16/06/99. On 18/06/99 the leader then deposited the cheque of K50,000.00 into his personal PNGBC Port Moresby Branch Account – see Document No. 91, Statement of Reasons, page 157.

On the 18/06/99 the leader wrote out a cheque in the sum of K45,000.00 and deposited it into the Swanita Mt Hagen Account, leaving the balance of K5,000.00 in his personal account at Port Moresby Branch – see Document No. 92, Statement of Reasons, page 158, dated 18/06/1999.

The leader explained to the Tribunal on his oral and documentary evidence which was tested in cross-examination that the K45,000.00 was paid to Swanita to purchase plants and equipment and for shipment of these plants and equipment to Nuku Electorate for road construction, a project approved by the District Joint Priority Planning Committee.

The amount of K5,000.00 left in the leader’s account was expended on travel and accommodation for Mr Peter Komboni, Mr Paul Koman and Mr Nandawo who travelled to Port Moresby for matters associated with the Nuku road construction project and other electorate matters.

The prosecution had submitted the above purposes for which the leader had expended the whole of K50,000.00 are not such that are prescribed under Section 68 of the Act. The prosecution further submitted that the balance of K5,000.00 was not expended as explained by the leader but was used on personal benefits by the leader.

It must be borne in mind that the prosecution led no evidence on allegations 11, 12 and 13 to be tested in cross-examination but relied on the documents contained in the Statement of Reasons and Exhibits tendered to the Tribunal. The defence led evidence and tested in cross-examination on these allegations such as the leader’s evidence and Mr Jack Nombari who gave evidence of his knowledge on the cheque of K50,000.00 which he personally picked up from the Prime Minister’s office. Mr. Nombari handed over the cheque to the leader upon his arrival in Port Moresby.

Mr Nombari’s goes on to say that around the same period, officers from Nuku Development Trust, an overseer organisation set up to facilitate development in the infrastructures and economic sector in Nuku electorate, were in Port Moresby. These officers were Mr Peter Komboni, Mr Paul Komau, Mr Simon Nick and Mr Kelly Nakunawe. Given the lack of capable building contractors in the Nuku electorate, Swanita Ltd of Mt Hagen, was selected as the preferred firm to carry out various road works in the Electorate.

Mr Nombari informed Mr Gibson of Swanita that K45,000.00 was deposited into Swanita’s account whilst K5,000.00 was retained to cater for the daily expenses, ie. accommodation and allowances for the officers that travelled from Nuku Electorate to sign the Trust Deeds with Swanita Ltd.

This evidence corroborates that of the leader, that K45,000.00 was paid into Swanita and K5,000.00 was expanded on costs associated with projects in the Nuku Electorate in which Swanita was involved.

The law applicable to these allegations is the Gaming Machine Act of 1993. The relevant sections are Section 67 and 68. Section 67 provides for distribution of profits. Section 68 provides for payment by National Government out of its shares of profits received under s. 67 (2) (c). .

"(1) As soon as practicable after the end of each financial year, the Minister shall, in accordance with this section out of monies paid into the Trust Account under Section 67 (2)(c) during that financial year, after deductions of the expenses of operating the trust account, make payments of such amounts as are directed by the National Executive Council for such health, welfare, community, sporting or rehabilitation purposes as are directed by the national Executive Council".

Section 68 clearly spells out the following areas for which the Minister shall make payments for as directed by the National Executive Council. These are for health, welfare, community, sporting or rehabilitation purposes."

In relation to counts 11-12, there is no evidence by the prosecution to prove that the conversion of K45,00.00 from the K50,000.00 into a bank cheque by the leader and deposited that amount in Swanita Ltd Westpac Bank Account, No. 6000 104561 held at Mt Hagen was done so with the intention that the leader would personally benefit or had personally benefited from that transaction. There is also no evidence before the Tribunal that the leader had applied the balance of K5,000.00 to his own use.

There is evidence before the Tribunal that the leader did receive the K50,000.00 and applied it to the project initiated by him approved by the District Joint Committee in the following – K45,000.00 paid to Swanita Ltd, Mt Hagen. – K5,000.00 costs associated with the Nuku Project.

The Prosecution argues that this is contrary to the implied conditions subject to which the money had been allocated to him. The Tribunal must then decide on the credibility and reliability of the evidence given by the leader, and Mr Jack Nombari.

Even though the Secretary of the NEC Mr Ua, the Acting Registrar of the Gaming Board Mr Krema and the Chairman of the Board Mr. Koleala were called by the tribunal, there were unable to provide the relevant guidelines issued by the NEC or the Board, regulating the use of Gaming Board funds. Therefore the only guidelines before us are those set out in s. 68 (1).

In the absence of any guidelines applicable in dealing with these Gaming Machines monies in June of 1999, the Tribunal is left with no choice but to accept the evidence of the leader and of Jack Nombari in respect to the manner in which the K50,000.00 was obtained and expended.

When applying Section 68 of the Act to the facts in regards to allegations 11, 12 & 13, the Tribunal must first satisfy itself whether the conversion of K45,000.00 and paying it into Swanita Ltd of Mt Hagen engaged to do road construction and maintenance in or is not covered Section 68. Since monies from the Gaming Machine can only be expended on such projects as health, welfare, community, sporting or rehabilitation purposes, we are satisfied that the monies were spent for community projects. Nuku Electorate is a community of people who voted for the leader, and therefore expected infrastructure development from the leader. The project undertaken by Swanita Ltd of Mt Hagen was indeed one that the Nuku Electorate community needed very much for development.

Whilst it is true that Swanita was paid K45,000.00 for plants and equipment, nevertheless the long term outcome was that the Nuku Electorate as a community benefited. Funds have to be expended to somebody for road construction and maintenance in the Nuku Electorate as a community project, which in this case was Swanita, a Company which the leader knew and trusted had the proven capacity and experience to carry out the road project in Nuku.

The Tribunal is also satisfied on the evidence before it that the K5,000.00 was never put to his own use by the leader but was expended on costs associated with the engagement of Swanita, ie. signing of the Trust Deed between the Swanita and the Nuku Development Trust and for accommodation and travels for the officers of the Nuku Development Trust which oversaw the projects which Swanita was engaged in the Nuku Electorate.

The Tribunal is therefore satisfied that the expenditures incurred with the K50,000.00 was for community purposes and the leader did not personally benefit from it.

Therefore, for these reasons, we find the leader not guilty on counts 11, 12 and 13.

Allegation 14, 15, and 16 relate to K13,000.00 which the leader had obtained from the National Gaming Control Board. The details of the allegations have already been referred to above.

The brief facts are that an invitation was extended to the Prime Minister and the leader to officiate at the first grade six graduation at Wara Kongkong Community School.

The Prime Minister could not attend the graduation but through his Chief-of-Staff approval was given to the National Gaming Board for a donation of K13,000.00 to the School through the leader.

Since the donation from the Gaming Board could not be raised in time for the graduation the leader authorised a withdrawal of K10,000.00 from his discretionary component of the District Support Grant (DSG) controlled by the Provincial Treasurer. The DSG contained both his discretionary and non-discretionary funds.

The D.S.G. funds were to be reimbursed with the Gaming Board funds when it became available.

When the Gaming Board funds did become available it was paid to the leader in person. There was no requirement under s. 67 and 68 of the Act or any relevant guidelines issued by the National Executive Council, which required the payment to be made only to the supplier of goods or service provider.

The leader said that he used the K13,000.00 for other community projects in the electorate as he took it to be a reimbursement of his discretionary funds given to the School. Upon the insistence by the Provincial Treasurer Mr Robert Rere, the Leader was made to reimburse the K10,000.00 to the Provincial Treasury. The balance of K3,000.00 was paid to the Board of Management of Wara Kongkong Community School for reimbursement for costs of refreshment at the graduation ceremony.

(f) Did not obtain any personal benefit from the K13,000.00 because every toea was disbursed to persons other than himself. This was confirmed by the statement of the recipients of funds from the K13,000.00

(g) Cannot be found to have committed a breach of s. 27 of the Constitution and s. 13 of the Organic Law on the Duties and Responsibilities of Leadership as there is no evidence to support the allegations referred.

The first question is whether the leader was dishonest or lacked integrity when he applied for and received the K13,000.00 from the National Gaming Board.

The prosecution did not call witnesses to prove the allegation referred. The persons called by the Tribunal were of little help to the prosecution. The defence called the leader and one other witness apart from documents and statements of witnesses which were tendered by consent.

The facts show that a prior commitment had been made by the Prime Minister to present money to the School. The Prime Minister’s Chief of Staff made a request to the Gaming Board on behalf of the Prime Minister for the release of K13,000.00 The money was to be paid for by the Gaming Board through the leader. Since the money was not yet processed the leader took it upon himself to direct the use of money from his discretionary component of the District Support Grant.

Without being told by the Treasurer of where the money for the school was taken out from, whether it from the discretionary or non-discretionary component of the D.S.G., the leader followed up with the Gaming Board to obtain funds to reimburse the K10,000.00 he had used.

The evidence shows that the Prime Minister’s application to the Gaming Board for K13,000.00 had been made for the school. One month later the leader submitted an application to the Board for the same amount of K13,000.00 however, his reason in the application was for reimbursement purposes. Looking at it from another angle it would be noted that the leader’s claim for reimbursement was the same money intended for the school which the leader had already committed from his funds held at the Provincial Treasury. In the final analysis, the money paid by the Gaming Board did serve the original intended purpose ie. For the benefit of the school. If the money from the Gaming Board has been paid direct to the school, the school would have benefited twice which was not the intended purpose in the first place. The school would have been made to reimburse the leaders funds at the Provincial Treasury which is in effect the same action taken by the leader with the Gaming Board. The funds for the school was to originate from the Gaming Board and not the leaders funds or anywhere else for that matter. The leader intervened as a convenience on behalf of the Gaming Board which the Gaming Board was obliged to reimburse. It may be seen that the purpose for the leader’s claim was improper and against the Gaming Board Act, however it would be tantamount to dishonesty had the leader indicated his purpose for the claim as being for the school when the school had already been paid his District Support Grant. The reason advanced by the leader on the claim displays honesty on the part of the leader. If the leader had lied to conform to the Gaming Machine Act provisions, it would amount to dishonesty.

Had the leader borrowed money from some other source to present to the school because the Gaming Board funds were not ready, the Gaming Board would be obligated to reimburse the source of funding even if the reimbursement was outside the scope of funding under the Gaming Machine Act. This appears to be the scenario the leader was placed in. The leader was quite entitled to a reimbursement of funds he incurred on behalf of the Prime Minister and the Gaming Board.

There is no evidence of any sinister motive or false pretence displayed by the leader to amount to dishonesty or lacking in integrity. Therefore, the leader’s actions do not account to misconduct in office under s. 27 (1) (b) and (2)of the Constitution.

The second question is whether the leader used his official position to benefit himself when he applied the funds he received from the Gaming Board.

As stated above the leader was quite entitled to a reimbursement of his funds whether it was from his discretionary or non-discretionary component of the DSG. The leader had applied his funds to fulfil the intended purpose of the Gaming Board funds. It was incumbent upon the Gaming Board to reimburse what the leader expended.

The leader stated that he had expended the K13,000.00 from the Gaming Board for electoral projects as it was reimbursement of his discretionary funds. The evidence is contradictory as to whether the funds given to the school were in fact from the leaders discretionary funds. If the funds were from the discretionary component of the DSG, the leader was quite entitled to apply it at his discretion. The Treasurer made mention of the funds being released from the non-discretionary component of the District Support Grant in a Statutory Declaration dated 22/02/01. The same treasurer then stated that the leader reimbursed the money presented to the Wara Kongkong Community School and used the same money to pay for repair costs to vehicles by the leader in a letter to Pato Lawyers dated 21/01/03. Both documents were tendered into evidence by consent: see Statement of Reasons, document No. 112 and Exhibit "F".

From the evidence of the Treasurer it is clear that the leader was never advised where the money for the school came from. In this situation the leader made no error in assuming the money to be from his discretionary component of the DSG. On the basis of this assumption the leader was quite entitled to accept the Gaming Board funds as reimbursement of his discretionary funds and apply them as his discretionary funds. The Gaming Board funds were in effect a substitute for the DSG funds which the leader had presented to the school earlier on. The Gaming Board funds were not an isolated grant of its own. It became connected to the leader’s DSG when the leader applied his DSG to honour the Prime Ministers undertaking to present the money as community purpose funds under the Gaming Machine Act.

As a result there is no gross culpability on the part of the leader when he applied for a reimbursement to the Gaming Board as it was a natural flow-on from events which had occurred earlier.

It can be safe to infer that the Gaming Board funds were applied in compliance with and s. 67 and 68 of the Gaming Machine Act.

The uncontested statements by the recipients of the funds from the leader which were admitted by consent show that the leader disbursed the money for community service. Even if it was still Gaming Board money (which it was not) the disbursements were for community service. It was also not contested that the application of the funds were improper. There is no evidence to suggest that the leader benefited himself using his official position when he applied the funds he received from the Gaming Board. In the final analysis the application of the Gaming Board funds by the leaders were proper and does not amount to misconduct in office. Therefore he is not guilty under s. 5(1) of the Organic Law on the Duties and Responsibilities of Leadership.

The third question is whether the leader was in breach of the Gaming Machine Act and its implied conditions when he accepted and applied the K13,000.00 to his personal use.

As already mentioned above the leader was not in breach of the Gaming Machine Act nor it’s implied conditions on the basis that what he had accepted was a substitute or reimbursement of the money the leader spent on behalf of the Prime Minister who had initiated and arranged with the Gaming Board to fund. It was not a fresh application for a new community service or project by the leader to be subject to the Gaming Machine Act.

As to the issue of whether the leader applied the K13,000.00 to his personal use it is reiterated that there is no evidence of any application of the funds to the leaders own use. The uncontested statement by the recipients of the funds which were admitted by consent for the defence speak loud and clear in favour of the leader, that he did not apply the funds to his personal use. There is no evidence of any transactions from which the leader enjoyed personal gain. The evidence is not sufficient to constitute a breach of any duty under s. 27 of the Constitution or s. 5(1) and s. 13(a) of the OLDRL.

Therefore we find the leader not guilty of misconduct in office under counts 14, 15 and 16.

We find the leader not guilty on all 16 counts. We should conclude by recommending to the civil prosecution authorities to prosecute Mr. Muip for contempt of the tribunal under OLDRL and/or for perjury under the Criminal Code. Finally, as this is a quasi-criminal proceeding, we make no order as to costs but order that each party bear their own costs of the proceedings.

We should also conclude by saying that the effect of this decision is that the automatic suspension of the leader from active duties under s. 28 of the OLDR now lapses by operation of law and the leader is free to perform his duties as the Member for Nuku in the National Parliament.

Lawyer for the Prosecution - Public Prosecutor
Lawyer for the Leader - Pato Lawyers

WHEREAS on 8 July 2002 the Ombudsman Commission referred to me, under Section 17(d), 20(4) and 27(1) of the Organic Law on the Duties and Responsibilities of Leadership, a matter in respect of which it was satisfied that there was a prima facie case that the Honourable Andrew Kumbakor MP< Minister for Finance, Planning and Rural Development, member for Nuku Open and member of the West Sepik Provincial Assembly (hereafter referred to as "the Leader") was guilty of misconduct in office; and

WHEREAS the Leader is and has been at all relevant times a person to whom Division III.2 of the Organic Law on the Duties and Responsibilities of Leadership, apply; and

WHEREAS I consider, pursuant to Sections 29(1) and 177(1)(b) of the Constitution and Section 27(2) of the Organic Law on the Duties and Responsibilities of Leadership, that the matter should be proceeded with.

I HEREBY REFER TO THE APPROPRIATE TRIBUNAL appointment for the purpose by the Honourable Sir Arnold Amet Kt CBE LLD, Chief Justice of Papua New Guinea, THE FOLLOWING MATTER OF ALLEGED MISCONDUCT IN OFFICE, further particulars of which are contained in the statement of reasons referred to me by the Ombudsman Commission for its opinions that there is a prima facie case that the leader has been guilty of misconduct in office, NAMELY:

THAT from September 1997 to January 1998 the Leader failed to carry out the obligations imposed by Section 27(1) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he;

AND FURTHERMORE the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution;

BY using his office for personal gain and entering into transactions that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by Section 27(1) of the Constitution;

IN THAT having applied for an advance of K17,696..14 from the National Parliament from his motor vehicle allowances for the purpose of purchasing a motor vehicle from Active Engineering Ltd he;

(iii) after cancelled the purchase of the motor vehicle resulting in the State being liable to a 10% cancellation fee of Kl7,696.14; and

THEREBY being guilty of misconduct in office under Section 27(5) (b) of the Constitution.

THAT in September 1997 the Leader, except as specifically authorised by law, directly or indirectly accepted on behalf of himself benefits by reason of his official position;

AND FURTHERMORE the leader except in the course of and for the purpose of his official duties or official position, used his official position for the benefit of himself

IN THAT having accepted public money from the National Parliament in the form of an advance of K17,696.14 from his motor vehicle allowance, he paid that money to Active Engineering Ltd and allowed that company to refund him K15,926.53 contrary to the determinations of the Salaries and Remuneration Commission;

THEREBY: being guilty of misconduct in office under Section 5(1) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT from March 1998 to April 1998 the Leader failed to carry out the obligation imposed by Section 27(1) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he:

AND FURTHERMORE the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution;

BY using his office for person gain and entering into transactions that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by Section 27(1) of the Constitution.

IN THAT having applied for an advance of K2,900. 00 from the National Parliament from his motor vehicle allowance for the purpose of meeting workshop costs for his motor vehicles, he

THEREBY being guilty of misconduct in office under Section 27(5) (b) of the Constitution.

THAT in April 1998 the Leader, except as specifically authorised by law, directly accepted on behalf of himself a benefit by reason of his official position;

AND FURTHERMORE except in the course of and for the purpose of his official duties or official position, used his official position for the benefit of himself;

AND THAT having accepted public money from the National Parliament in the form of a cheque for K2,900.00 that was required to be used for motor vehicle repairs, he applied the proceeds of that cheque to his own use and benefits contrary to the determination of the Salaries and Remuneration Commission;

THEREBY being guilty of misconduct in office under Section 5(1) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT from April 1998 to August 1998 the Leader failed to carry out the obligations imposed by Section 27(1) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he;

AND FURTHERMORE the Leader failed to carry out the obligation imposed by Section 27(2) of the Constitution,

AND FURTHERMORE the Leader failed to carry out the obligations imposed by Section 27(3) of the Constitution;

BY failing to ensure, as far as was within his lawful power, that a person for whom he was by usage responsible did not conduct himself in a way that might be expected to give rise to doubt in the public mind as to whether he was complying with his duties under Section 27 of the Constitution;

IN THAT having applied for an advance from the National Parliament from his motor vehicle allowances for the purpose of purchasing a motor vehicle, he

THEREBY being guilty of misconduct in office under Section 27(5)(b) of the Constitution.

THAT in June 1998 the Leader, except as specifically authorised by law, indirectly accepted on behalf of himself and his associate benefits by reason of his official position;

AND FURTHERMORE except in the course of and for the purpose of his official duties or official position, used his official position for the benefit of himself and his associate;

THAT having accepted public money from the National Parliament in the form of a cheque for K4l,748.88 payable to an associate, Fabian Muip, that was required to be used for the purchase of a motor vehicle from that associate, he failed to purchase that vehicle and instead instructed that associate to deposit that cheque into that associate’s bank account and further instructed that associate to withdraw money from the associate’s account and to give it to him for his personal use.

THEREBY being guilty of misconduct in office under section 5(1) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT in September 1998 the Leader failed to carry out the obligations imposed by Section 27(1) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he;

AND FURTHERMORE the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution;

IN THAT having applied for an advance of K8,000.00 from the National Parliament from his motor vehicle allowances for the purposes of paying insurance and maintenance costs for his electoral motor vehicles, he;

THEREBY being guilty of misconduct in office under Section 27(5)(b) of the Constitution.

THAT in September 1998 the Leader, except as specifically authorised by law, indirectly accepted on behalf of himself benefits by reason of his official position;

AND FURTHERMORE except in the course of and for the purpose of his official duties or official position, used his official position for the benefit of himself

IN THAT having accepted public money from the National Parliament in the form of a cheque for K8,000. 00 that was required to be used for motor vehicle repairs, he applied par of the proceeds of that cheque, namelyK6,000.00 to his personal use and benefit contrary to the determinations of the Salaries and Remuneration Commission;

THEREBY being guilty of misconduct in office under Section 5(1) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT in September1998 the Leader failed to carry out the ob1i imposed by Section 27(1) of the Constitution.

BY conducting himself in his public life and in his associations with other persons in such a way that he;

AND FURTHERMORE the Leader failed to carry out the obligation imposed by section 27(2) of the Constitution;

BY engaging in an enterprise that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by Section 27(1) of the Constitution;

AND FURTHERMORE the Leader failed to carry out the obligation imposed by Section 27(3)(a) of the Constitution;

BY failing to ensure, as far as was within his lawful power, that a person for whom he was by usage responsible did not conduct himself in a way that mi be expected to give rise to doubt in the public mind as to his complying with his duties under Section 27 of the Constitution;

(iii) did so, knowing or being recklessly indifferent to the fact that his brother-in-law was already employed by the Department of Finance and Treasury and would receive a double salary.

THEREBY being guilty of misconduct in office under Section 27(5)(b) of the Constitution.

THAT in November 1997 the Leader, failed to reveal to the ombudsman Commission and the appropriate authorities the nature and extent the interest of an associate in a matter with which he had to deal in his official capacity.

AND FURTHERMORE dealt in his official capacity without good faith and without compulsion of law or urgent necessity or authorisation by the appropriate authorities;

THEREBY being guilty of misconduct in office under Sections 6(1) and 6(2) of the Organic Law on the Duties and Responsibilities of Leadership.

6. NATIONAL GAMING CONTROL BOARD CHEQUES - FIRST CHEQUE K50,000.00 (Allegation 11-13).

THAT in June 1999 the Leader failed to carry out his obligation imposed by Section 27(2) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he;

(d) endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea.

AND FURTHERMORE the Leader failed to carry out the obligation imposed by Section 27(2) of the Constitution;

BY THAT having received public money from the National Gaming Control Board in the form of cheque No: 135553 for K50,000.00 he;

THEREBY being guilty of misconduct in office under Section 27(5Xb) of the Constitution.

THAT in June 1999 the Leader, except as specifically authorised by law, directly asked for and accepted on behalf of himself a benefit by reason of his official position;

AND FURTHER except in the course of and for the purpose of his official duties or his official position, used his official position for the benefit of himself,

IN THAT having accepted public money from the National Gaming Control Board in the form of cheque No. 135553 for K50,000.00 payable to "Andrew Kumbakor " he applied part of the proceeds of that cheque, namely K5,000. 00 to his personal use;

THEREBY being guilty of misconduct in office under Section 5(1) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT in June 1999 the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea to a purpose to which it could not be lawfully be applied

IN THAT . having accepted K50,000.00 of public money from the National Gaming Control Board in the form of a cheque payable to himself, be applied part of the proceeds of that cheque to his personal use and part of it to the use and benefit of a company, Swanita Ltd contrary to:

(ii) the implied conditions subject to which that money had been allocated to him;

THEREBY being guilty of misconduct in office under Section 13(a) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT from December 1999 to January 2000 the Leader failed to carry out the obligations imposed by Section 27(1) of the Constitution;

BY conducting himself in his public life and in his associations with other persons in such a way that he;

AND FURTHERMORE the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution;

IN THAT having received public money from the National Gaming Control Board in the form of cheque No: 736304 for K13,000.00 he converted the proceeds of the cheque to his personal use and benefit.

THEREBY being guilty of misconduct under Section 27(5)(b) of the Constitution.

THAT in December 1999 the Leader, except as specifically authorised by law, directly asked for and accepted on behalf of himself a benefit by reason of his official position.

AND FURTHERMORE except in the course of and for the purpose of his official duties or his official position, used his official position for the benefit of himself;

IN THAT having accepted public money from the National Gaming Control Board in the form of cheque No. 736304 for K13,000.00 made payable to himself, he applied the proceeds of that cheque to his personal use and benefit;

THEREBY being guilty of misconduct in office under Section 5(1) of the Organic Law on the Duties and Responsibilities of Leadership.

THAT in June 1999 the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea to a purpose to which it could not be lawfully be applied.

IN THAT having accepted K13,000.00 of public money from the National Gaming Control Board in the form of a cheque payable to himself, he applied the proceeds of that cheque to his personal use contrary to;

THEREBY being guilty of misconduct in office under Section 13(a) of the Organic Law on the Duties and Responsibilities of Leadership.

(1) A person to whom this Law applies who, except as specifically authorized by law, directly or indirectly asks for or accepts, on behalf of himself or an associate, any benefit in relation to any action(past, present or future) in the course of his duties, or in the course of or by reason of his official position, is guilty of misconduct in office.

(2) Subsection (1) extends to the case of a person to whom this Law applies who, except in the course of and for the purpose of his official duties or his official position, use or allows his name or his official position to be used for the benefit of himself or any other person.

(1) .A person to whom this Law applies who fails to reveal to the Ombudsman Commission and the appropriate authority the nature and extent of his interest, or the interest of an associate, in a matter with which he has to deal in his official capacity is guilty of misconduct in office,

No:	Page No:	Date:	Description of Documents
1	27	00.00.00	Public Service Regulation Chapter No. 167.
2	31	00.03.89	General Order 15 – Engagement of Business Activities outside Public Service Employment.
3	33	27.09.95	MVIT certificate No. 01062602.
4	34	03.10.96	Motor vehicle inspection report.
5	35	21.10.96	Registration certificate No. D 181457 of Fabian Muip. BAF 305
6	36	25.03.97	SRC Determination No. G97-03.
7	52	03.04.97	Certificate of Roadworthiness No. 14527 of Fabian Muip.
8	53	00.07.97	Kumbakor’s expenditure details.
9	54	30.07.97	Kumbakor’s expenditure details.
10	55	05.09.97	Letter: Kumbakor/Provincial Treasurer.
11	56	08.09.97	Letter: Kanawo/Acting Provincial Treasurer.
12	57	14.09.97	Letter: Kumbakor/Clerk of Parliament.
13	58	19.09.97	Vehicle quotation from Active Engineering for K23,500.00.
14	59	23.09.97	Requisition for purchase of goods/services: K17,696.14 paid to Active Engineering.
15	60	23.09.97	General expenses: the sum of K17,696.14 paid to Active Engineering.
16	62	23.09.97	Letter: Kumbakor/Clerk of Parliament.
17	62	23.09.97	National Parliament acc. (ANZ Bank) cheque No. 97209 for K17,696.14.
18	63	27.09.97	Deposit receipt from Active Engineering.
19	64	30.09.97	Letter: Acting Provincial Treasurer/Kanawo.
20	65	21.10.97	MVIT Certificate No: 01121343 for vehicle BAF 305.
21	66	13.12.97	Letter: Acting Provincial Treasurer/Secretary for Department of Finance. Note – this letter has attachments which the Ombudsman Commission has marked with attachments as follows:
	67	05.09.97	(A) Kumbakor/Provincial Treasurer
	68	08.09.97	(B) Kanawo/Provincial Teasurer.
22	69	17.12.97	Letter: Kumbakor/Ano Pala.
23	70	16.01.97	Letter: Kumbakor/Active Engineering.
24	72	16.01.98	Petty cash voucher No. 1532 of the sum of K15,926.53.
26	73	16.01.98	Receipt – Payment of K11,000.00 being for Toyota Land Cruiser by Kumbakor.
27	74	12.02.98	MP’s staff salary – cheque No. 113764 for K184.02.
28	75	13.02.98	Deposit receipt for K184.02.
29	76	24.03.98	MP’s staff salary cheque No. 115513 for K184.61.
30	77	31.03.98	Letter: Kumbakor/Renagi Kila.
31	78	31.03.98	Letter: Kumbakor/ANZ Bank.
32	79	08.04.98	MP’s staff salary cheque No. 115938 for K184.61.
33	80	14.04.98	Deposit receipt for K184.61/
34	81	14.04.98	Requisition for purchase of goods/services: K2,900.00 paid to Kumbakor.
35	82	14.04.98	General expense – for K2.900.00 paid to Kumbakor.
36	83	16.04.98	National Parliament imprest (ANZ Bank) cheque No. 214001 for K2.900.00.
No:	Page No:	Date:	Description of Documents
37	84	21.04.98	MP’s staff salary – cheque No: 1116410 for K184.61.
38	85	24.04.98	PNGBC deposit receipt for K184.61.
39	86	30.04.98	Letter: Muip/Kumbakor, Note – this letter has an attachment which the Ombudsman Commission has marked as follows:
	87		(a). Quotation for K55,000.00 from Muip for the sale of his vehicle BAF 305 undated.
40	88	07.05.98	MP’s staff salary – cheque No. 117050 for K184.61.
41	89	08.05.98	PNGBC deposit receipt for K184.61.
42	90	21.05.98	MP’s staff salary – cheque No. 117740 for K184.61.
43	91	22.05.98	PNGBC deposit receipt for K184.61.
44	92	04.06.98	MP’s staff salary – cheque No. 118380 for K184.61.
45	93	05.06.98	Deposit receipt for K184.61.
46	94	09.06.98	Letter: Kumbakor/Clerk of Parliament.
47	95	09.06.98	Requisition for purchase of goods/services: K41,748.99 paid to Kumbakor.
48	96	09.06.98	General expenses the sum of K41,748.88 paid to Kumbakor.
49	97	18.06.98	MP’s staff salary – cheque No. 118949 for K184.61.
50	98	18.06.98	PNGBC deposit receipt for K184.61.
51	99	23.06.98	Integrated local purchase order and claim form No. 19636.
52	100	30.06.98	Remittance advance – BSP Bank cheque No. 119360 for K41,748.88.
53	101	01.07.98	MP’s staff salary – cheque No. 119646 for K184.61.
54	102	06.07.98	Deposit receipt for K184.61.
55	103	15.07.98	MP’ staff salary – cheque No. 120102 for K184.61.
56	104	06.07.98	PNGBC deposit receipt for K184.61.
57	105	15.07.98	MP’s staff salary – cheque No. 120723 for K184.61.
58	106	31.07.98	PNGBC deposit receipt for K184.61.
59	107	31.07.98	Fabian Muip’s bank statement from 31.07.98 to 11.09.98.
60	113	12.08.98	MP’s staff salary – cheque No. 121402 for K184.61.
61	114	14.08.98	Deposit receipt for K184.61
62	115	14.08.98	National Gazette No G-90 of 14 August 1998 – appointment of Mr Kumbakor as Minister.
63	117	25.08.98	MP’s staff salary— cheque No 122044 for K184.61.
64	118	28.08.98	PNGBC deposit receipt for Kl84.61.
65	119	09.09.98	MP’s staff salary – cheque No 122620 for K184.61.
66	120	18.09.98	Letter: Muip/Clerk of Parliament.
67	121	18.09.98	Requisition for purchase of goods/services: K8,000.00 paid to Kumbakor.
68	122	18.09.98	General expenses — the sum of K8,000.00 paid to Kumbakor.
69	123	18.09.98	Remittance advice — BSP Bank cheque No 123063 for K8,000.00.
70	124	21.09.98	PNGBC deposit receipt for K184.61.
71	125	24.09.98	MP’s staff salary— cheque No 123446 for K184.61.
72	126	06.10.98	MP’s staff salary – cheque No. 123985 for K184.61..
73	127	07.10.98	PNGBC deposit receipt for K184.61.
74	128	12.10.98	PNGBC deposit receipt for K184.61.
75	129	30.10.98	National Gazette No. G123 of 20 October 1998 – appointment Mr Kumbakoras Minister.
76	131	21.10.98	MP’s staff salary – cheque No. 1244780 for K184.61.
77	132	21.10.98	MP’s staff salary – cheque No. 125371 for K184.61.
78	133	18.11.98	MP’s staff salary – cheque No. 125842 for K184.61.
No:	Page No:	Date:	Description of Documents
79	134	26.11.98	Letter Kumbakor/Chief of Staff.
80	136	01.12.98	MP’s staff salary – cheque No. 126603 for K184.61.
81	137	02.12.98	Letter Young/Oli.
82	139	02.12.98	Letter Kumbakor/Kanawo.
83	140	03.12.98	PNGBC deposit receipt for K184.61.
84	141	21.10.99	MP’s staff salary – cheque No. 32401025 for K184.61.
85	143	25.01.99	Fabian Muip’s employment history.
86	145	25.01.99	Statutory Declaration by Fabian Muip.
87	147	13.05.99	Charge of Mr Kanawo under Public Services Management Act.
88	148	04.06.99	Letter: Kanawo/Secretary, Department of Treasury Note – this letter has attachments which the Ombudsman Commission has marked as follows:
		30.09.97	(a). Letter: Kumbakor/A/Provincial Treasurer/Kanawo.
		08.09.97	(b) Letter: Kanawo/Provincial Treasurer.
		30.09.97	(c) Letter: a/Provincial Treasurer/Kanawo.
		15.12.97	(d). Letter: a/Provincial Treasurer/Secretary of finance.
89	155	15.06.99	Bank of South Pacific cheque No. 135553 for K50,000.00.
90	156	16.06.99	Letter: Kumbakor/Bank of South Pacific.
91	157	18.06.99	Letter: PNGBC Deposit receipt for K50,000.00.
92	158	18.06.99	Cashed personal cheque No. 790434 for K50,000.00
93	159	18.06.99	PNGBC bank cheque No. 0515874 for K45,000.00 in favour of Swanita Ltd.
94	160	18.06.99	Deposit slip showing deposit of bank cheque into Swanita’s Westpac bank account.
95	161	18.06.99	Deposit receipt for K45,000.00 into Swanit’s account.
96A	162	21.06.99	Letter: Swanita Limited/Kumbakor.
96B	163	22.06.99	Letter: Kumbakor/Swanita Limited.
96C	165	22.06.99	Letter: Swanita Limited/Kumbakor
96D	166	12.07.99	Letter: Swanita Limited/Kumbakor.
97	167	21.07.99	Letter: Active Engineering/Ombudsman Commission Note: - this letter has attachments which the Ombudsman Commission has marker as follows:
		16.01.98	(a). Petty cash voucher for K15,906.53.
		17.09.97	(b). Official receipt for K17,696.14.
		27.09.97	(c). Invoice to Andrew Kumbakor for K17,696.14 for Toyota Hilux BAV 397.
		00.00.98	(d). Letter Active Engineering/Andrew Kumbakor
		16.01.98	(e). National Parliament "ID" Card for Kanavo and Muip.
		16.04.98	(f). ANZ Bank cheque 018902 from Auto Oarts (PNG) Ltd to Andrew Kumbakor for K15,926.53.
		16.04.98	(g). Petty cash voucher for K17,688.85.
		31.03.98	(h). Petty cash voucher for K17,688.85 16.04.98 to Andrew Kumbakor and ANZ Bank Cheque from Auto Parts (PNG) Pty. (i). Invoice to Andrew Kumbakor for Toyota Hilux CAH 748.
		16.04.98	(j). Letter: Kumbakor/Active Engineering.
			(k). Letter: Active Engineering/Kumbakor.
98	168	07.12.99	Letter: Dr Jumogot/Chairman, National Gaming Control Board.
99	169		Letter: First Secretary/Sandaun Provincial Treasurer.
100	170	09.12.99	Requisition of expenditure from Sandaun Provincial Treasury Department.
101	171	09.12.99	General expenses form from the Provincial Treasury.

No.	Exhibit Letters	Documents	Party Tendering Document	Witness Document Tendered	By Consent / Not by Consent
1	"A"	Affidavit of David L. Cannings sworn on 16/3/03 annexing pages 22-255 of the Statement of Reasons by the Ombudsman Commission.	Prosecution	David Cannings	By Consent
2	"B.1"	Certified Waigani District Court Depositions 401-405 of 2000.	Prosecution		By Consent
3	"B.2"	Certified Waigani District Court Depositions set DCR 137/00.			By Consent
4	"C"	PNGBC Cheque Account Statement .......dated 30/9/98 Page 4).	Defence	Fabian Muiaya	By Consent
5	"D"	Kumbakor PNGBC Cheque Account Statement dated 30/9/98 page 12.	Defence	Fabian Muiaya	By Consent
6	"E"	Leader’s reconciliation Statement for reference of period.	Defence	Renagi Kila	By Consent
7	"F"	Sandaun Provincial Treasury Robert Rere’s letter to Pato Lawyers dated 10/7/97 to 12/12/98.	Defence	Fidelis Karawo	By Consent
8	"G"	Statement of Fidelis Kanawo	Prosecution	Fidelis Karawo	By Consent
9	"H"	Statement of Joseph Koeri	Defence		By Consent
10	"I"	Kumbakor’s letter to PNGBC, POM dated 29/10/98.	Defence	Joseph Kuri	By Consent.
11	"J"	Statement of Jack Nambari	Defence		By Consent
12	"K"	Affidavit of Rick Sims Wama dated 12/9/02.	Defence		By Consent.
13	"L"	Affadivat of Rick Sims Wama dated 13/9/02	Defence		By Consent.
14	"M"	Letter from the Hon. Robert Sakias to Kumbakor dated 12/9/01..	Defence		By Consent.
15	"N"	Statement of Michael Mabon.	Defence		By Consent
16	"0.1"	Statement of Michael Nantawao dated 8/10/02 (In English).	Defence		By Consent.
17	"0.2"	Statement of Michael Nantawao dated 8/10/02 (in English).	Defence		By Consent
18	"P"	Statement of Peter Kombari dated 22/10/02.	Defence		By Consent
19	"Q"	Affidavit of Paul Kuman dated 30/9/02.	Defence		By Consent
20	"R"	Statement of Adam Wangu	Defence		By Consent
21	"S"	Statement of Michael Yamuna	Defence.		By Consent
22	"T"	Kumbakor’s letter to Registrar of Gaming Board dated 01/03/01 re, K13,000.00.	Defence		By Consent
23	"U"	Kumbakor’s letter to Registrar of Gaming Board dated 01/03/01 re: K50,000.00.	Defence		By Consent.
24	"V"	Kumbakor’s letter to Director of office of Rural Development dated 28/7/99.	Defence		By Consent

No.	Exhibit Letters	Documents	Party Tendering Document	Witness Document Tendered	By Consent / Not by Consent
25	"W"	Management Agreement between Murray Development Trust that and Swanito Ltd dated 10/05/99.	Defence		By Consent.
26	"X"	Nuku Development Trust Agreement between Peter Kumbon and Peter Kambor, Stephen George and Nuso Anbisi dated 01/03/99.	Defence		By Consent
27	"Y.1"	Kumbakor’s letter to Ombudsman Commission dated 13/12/99.	Defence		By Consent
28	"Y.2"	Kumbakor’s letter to Ombudsman Commission dated 13/9/99.	Defence		By Consent.
29	"Y.3"	Kumbakor’s letter to Ombudsman Commission dated 01/12/99.	Defence		By Consent
30	2.1.	Sandaun Department Trust Account Statement printout for 1999.
31	2.2.	Sandaun Department Trust Account Statement printout for 2000.
32	2.3	Sadaun Department of Trust Account Statement of Printout for 2001.	Defence		By Consent
33	"A.Ä"	People Notice Mazagine dated 18-31/0/99.	Defence		By Consent
34	"BB.1"	SRC Determination updated 25/3/97.	Defence		By Consent
35	"BB2"	SRC Determination updated as at 01/01/99.	Defence		By Consent
36	"BB3"	SRC Determination dated 28/9/01.	Defence		By Consent
37	"CC:"	SRC Determination dated 28/3/02.	Defence		By Consent
38	"DD"	Post Courier Tuesday 17/09/02 p.2.	Defence		By Consent
39	"EE"	PNGBC statement of printout, re: Kumbakor, dated 22/06/99.	Defence		By Consent
40	"FF"	Mr Robert Here Letter and Pato Lawyers dated 15/05/99; page 21.	Defence		By Consent
41	"GG"	New District Treasurer Robby Uris, letter to Kumbakor dated 15/5/01.	Defence		By Consent
42	"HH"	Receipts from various motor car dealers/repair shops.	Defence		By Consent.
43	"II"	Payslip printout of Kumbaro dated 02/12/99.	Defence		By Consent
44	"JJ"	Parliament payslip printout for Kumbako dated 16/12/98.
45	"KK"	Parliament payslip printout for Kumbakor dated 17/6/98.	Defence		By Consent.
46	"LL"	NEC determination No. 89/98 dated 22/04/98.	Appearing in summons.	Anthony Ua	By Consent.
47	"MM"	NEC decision no. 91/98 dated 11/05/98	Appearing in person	Anthony Ua
48	"NN"	NEC decision No. 291/98 dated 11/12/98.	Appearing in person	Anthony Ua

No:	Page No:	Date:	Description of Documents
102	172	10.12.99	Cheque No. 87115 from K10,000.00 drawn in favour of Wara Kongkong Community School.
103	173	07.01.00	Application for assistance form from the National Gaming Control Board.
104	175	07.01.00	Remittance advise from the National Gaming Control Board.
105	176	07.01.00	Gaming Board cheque No. 736304 for K13,000.00 drawn in favour of Andrew Kumbakor.
106	177	28.04.00	Statement of Janet Tuakana made to Police.
107	181	25.05.00	Letter: ANZ Bank/Ombudsman Commission, note – this letter has attachments which the Ombudsman Commission has marked as follows:
		10.01.98	(a). Bank cheque No. 278576 for K15,926.53 and the reverse of the same 10.01.98.
		16.04.98	(b). ANZ Bank cheque from the National Parliament imprest account for K2,900.00, 16.04.98.
			(c). Letter: Kumbakor/ANZ Manager undated.
108	185	25.07.00	Record of Committal Proceedings.
109	222	29.08.00	Letter: Kumbakor/Ombudsman Commission, note – this letter has attachments which the Ombudsman Commission has marked as follows:
		18.05.98	(a). Kumbakor/Iairo Lasaro.
		31.05.00	(b). Letter: Kumbakor/Swanita Limited.
110	228	07.02.01	Letter: Peter Tapotap/Ombudsman Commission with attachment:
		28.12.99	(a). PNGBC deposit slip issued in Vanimo Town Parish.
111	231	21.02.01	Statutory declaration of Peter Tapotap.
112	232	22.02.01	Statutory declaration of Robert Rere – Sandaun Provincial Treasurer.
113	233	17.12.01	Letter: Ombudsman Commission/Kumbakor, re- right to be heard.
114	254	25.02.02	Letter: Kumbakor/Ombudsman Commission response to right to be hears.
115	255	27.03.02	Letter: Tuakana/Ombudsman Commission.

Papua New Guinea Leadership Tribunal

In the matter of Andrew Kumbakor [2003] PGLT 5; N2363 (8 May 2003)