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Papua New Guinea Leadership Tribunal |
N6232 (LT)
PAPUA NEW GUINEA
THE LEADERSHIP TRIBUNAL APPOINTED PURSUANT
TO SECTION 27 (2) AND 27 (7) (e) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP
AND:
IN THE MATTER OF THE HONOURABLE BOKA KONDRA MP MEMBER FOR NORTH FLY OPEN AND MEMBER OF WESTERN PROVINCIAL ASSEMBLY
REFERENCE NUMBER LT.N0.3 OF 2014
BEFORE:
HONOURALE JUSTICE SALATIEL LENALIA-
Chairman-
HIS WORSHIP MR. IGNATIUS KUREI – Senior
Magistrate-Member
HER WORSHIP MS. ROSIE JOHNSON – Senior
Magistrate-Member
Waigani
2014: 27th & 30th October,
2015: 26th January, 18th – 20th, 23rd – 27th February & 27th April.
CONSTITUTIONAL LAW – Leadership Code – Misconduct in office – Allowing "integrity" of the Leader to be called into question – Diminishing respect for "integrity" of the government – Misappropriation – Diversion of public funds originally allocated the North-Fly District Treasury to payments an electoral office space when specific allocation had been made into the Leader's salary – Whether such practice is appropriate under the Public Finance (Management) Act.
LEADERSHIP CODE – Use of public money for personal benefit and that of his associates – Intentional application of public monies forming part of any funds under the control of Papua New Guinea Government to any purpose to which it cannot be lawfully aapplied – Intention to divert funds established.
LEADERSHIP CODE – Clear case of misapplication of monies in cases of Double Deeping – No clear evidence of whether the leader could apply such funds controlled by District.
Cases cited:
Bonga v Sheehan [1997] PNGLR 452
Boral Gas (NSW) Pty Ltd V Magill (1995) 37 NSWLR 150.
Byrne V Baker [1964] VicRp 57; [1964] VR 443;
Hon. Andrew Kumbakor, Member for Nuku Open Electorate (8.5.2003) N2362
In re James Mopio [1981] PNGLR 416
In Application by Nilkare [1998] PNGLR 472
In the matter of the Tribunal and appointed under S.27 (7) of the Constitution and in the matter of Hon. Puka Temu M.P (2006) N3099.
Johnson V Miller [1937] HCA 77; (1937) 59 CLR 467
Mao Zeming –v- Justice Timothy Hinchliff (2006) N 2998
Nilkare [1997] PNGLR 472
Re: Sigu logo [1988-89] PNGLR 384
Reference by the Public Prosectuor in the matter of Grand Chief Michael Somare M.P (21-03-11) N.4224
Counsel:
Mr. P. Kaluwin and Mr. T. Ai, Assisting the Tribunal
Mr. I. Molloy and Mr. Asigau and Ms L. David, Assisting for the Leader
27th April, 2015
1. LENALIA, J - Chairman: On this Reference, there are three categories of the allegations on this inquiry. They consist of six counts of allegations made against the Hon. Boka Kondra, MP Member for North Fly Open and Member of Western Provincial Assembly. Three of those allegations (1, 3 and 5) are misappropriation charges while the other three (2, 4 and 6) are Constitutional breaches.
2. The misappropriation allegations relate to three various sums of monies allegedly misapplied by the leader from the District Services Improvement Program (DSIP) and the District Support Grant (DSG) funds. Such monies were kept in the North Fly District Treasury Operating Account.
3. It is alleged that the leader applied the sums of monies to his own benefit thereby breaching s.13 (a) of the Organic Law on Duties and Responsibilities of Leadership and being a Leader breached s.27 of the PNG Constitution.
CATEGORY 1.
MIAPPLICATION OF K85, 276.00 FOR THE NORTH-FLY DISTRICT SERVICES IMPROVEMENT PRPGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSP) FUNDS HELD IN THE NORTH-FLY DISTRICT TRESUARY OPERATING ACCOUNT FOR RENTAL PAYMENTS FOR NORTH-FLY OPEN MEMBER'S OFFICE IN KIUNGA, WESTERN PROVINCE.
ALLEGATION 1:
THAT between December 2008 and December 2009, the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea, namely the District Services Improvement Program (DSIP) and the District Support Grants to purposes for which it was not lawful;
IN THAT: The Leader used a total of K85, 276.00 from the District Services Improvement Program (DSIP) Funds and District Support Grant (DSG) held in the North-Fly District Treasury Operating Account to pay for the office rentals for the North-Fly Open Electorate in the North Fly District when he was already specifically allocated K38, 623.00 per annum payable over 26 pay periods (fortnightly salary) to pay for:
(a) Employment of electoral staff;
(b) Electoral travel;
(c) Air travel between Port Moresby and the Member's electorate;
(d) Electoral duty;
(e) Electoral office rental.
This sum is not subject to an acquittal.
THEREBY being guilty of misconduct in office under Section 13 (a) of the Organic Law on the Duties and Responsibilities of Leadership.
ALLEGATION 2:
THAT between December 2008 and December 2009, 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 association with other persons in such a way that he:
(a) Demeaned his office as a member of the Parliament for North-Fly Open and Member of the Western Provincial Assembly; and
(b) Allowed his official and personal integrity to be called into question;
AND FURTHERMORE the Leader failed to carry out the obligations imposed on him by Section 27 (2) of the Constitution.
BY using his office for personal gain;
IN THAT, the Leader used a total of K85, 276.00 from the District Services Improvement Program (DSIP) Funds and the District Support Grant (DSG) held in the North-Fly District Treasury Operating Account to pay for the office rentals for the North-Fly Open Electorate, the North-Fly District was already specifically allocated K38, 623.00 per annum payable over 26 pay periods (fortnightly salary) to pay for:
(a) Employment of electoral staff;
(b) Electoral travel;
(c) Air travel between Port Moresby and the Member's electorate;
(d) Electoral duty;
(e) Electoral office rental.
This sum is not subject to an acquittal,
THEREBY being guilty of misconduct in office under Section 27 (5) (b) of the Constitution.
CATEGORY 2
MISAPPLICATION OF K134, 966.62 FROM THE NORTH-FLY DISTRICT SERVICES IMPROVEMENT PROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSP) HELD IN THE NORTH-FLY DISTRICT TREASURY OPERATING ACCOUNT FOR PAYMNET OF RENTALS FOR ACCOMMODATION IN PORT MORESBY.
ALLEGATION 3.
THAT between 2008 and 2010, the Leader intentionally applied a sum of K134, 966.62 forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful;
IN THAT whilst receiving housing allowance of K1, 800.00 in his fortnightly salary, the Leader allowed the use of K134,966.62 from the District Improvement Program (DSIP) and the District Support Grant (DSG) held in the North-Fly District Operating Account for rental payments for accommodation for himself and his family in Port Moresby as outlined below:-
For the years 2008, 2009 and 2010 the Leader was being paid housing allowances equivalent to that of a Governor when he received in:
THEREBY being guilty of misconduct in office under Section 13(a) of the Organic Law on the Duties and Responsibilities of Leadership.
ALLEGATION 4.
THAT between 2008 and 2010, 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 association with other persons in such a way that he:
(a) Demeaned his office as a member of the Parliament for North-Fly Open and member of the Western Provincial Assembly; and
(b) Allowed his official integrity and his personal integrity to be called into question;
AND FURTHER the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution;
BY using his office for personal gain;
IN THAT whilst receiving housing allowances of K1, 800.00 in his fortnightly salary, the Leader allowed the use of K134, 966.62 from the District Services Improvement Program (DSIP) and the District Support Grant (DSG) held in the North-Fly District Operating Account for rental payments for accommodation for himself and his family in Port Moresby.
THEREBY being guilty of misconduct in office under Section 27(5) (b) of the Constitution.
CATEGORY 3
MISAPPLICATION OF K18, 200.00 FROM THE NORTH-FLY DISTRICT SERVICES IMPROVEMENT PROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSG) HELD IN THE NORTH-FLY DISTRICT TREASURY OPERATING ACCOUNT TO PAY OFF A PERSONAL DEBT.
ALLEGATION 5:
THAT between 2008 and 2010 the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful;
IN THAT the Leader misapplied a total of K18, 200.00 from the District Services Improvement Program (DSIP) funds and the District Support Grant (DSG) to service a personal outstanding debt incurred during the 2007 National Elections by hiring a motor vehicle from a company called Towi Smash Repairs outlined as follows:-
THEREBY being guilty of misconduct in office under Section 13(a) of the Organic Law on the Duties and Responsibilities of Leadership.
ALLEGATION 6.
THAT between 2008 to 2009 the Leader failed to carry out the obligations imposed on him by Section 27(1) of the Constitution;
BY conducting himself in his public life and in his association with other persons in such a way that he:
(a) Demeaned his office as a member of the Parliament for North-Fly Open Electorate and member for the Western Provincial Assembly; and
(b) Allowed his official integrity and his personal integrity to be called into question.
AND FURTHER, the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution;
BY using his office for personal gain.
IN THAT the Leader misapplied a total of K18, 200.00 from the DSIP funds and DSG to service his outstanding 2007 National Election debt which came about as a result of hiring a motor vehicle from a company called Towi Smash Repairs during the 2007 National Election which are outlined as follows:-
THEREBY being guilty of misconduct in office under Section 27(5) (b) of the Constitution.
Brief of Categories of Allegations.
4. There are three categories of allegations. Category 1 allegation relates to the alleged misapplication of K85, 276.00 from the North Fly District Services Improvement Program (DSIP) and the District Support Grant (DSG) Fund. Such funds were held by the District Treasury Operating Account. The evidence which I will refer to later establishes that, the amounts alleged in allegation 1 was used for renting an office space for the Member for North Fly Open at Kiunga, Western Province.
5. Category 2 allegation is about monies applied between 2008 and 2010. It is alleged that the Leader intentionally applied a sum of K134, 966.62 forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful.
6. It is alleged that, whilst the Leader was receiving housing allowance of K1, 800.00 in his fortnightly salary, the Leader allowed the use of K134, 966.62 from the District Improvement Program (DSIP) and the District Support Grant (DSG) held in the North-Fly District Operating Account for rental payments for accommodations for himself and his family in Port Moresby.
7. On Category 3, the Public Prosecutor alleges that between 2008 and 2010 the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful. It is alleged that the Leader misapplied a total of K18, 200.00 from the District Services Improvement Program (DSIP) funds and the District Support Grant (DSG) to service a personal outstanding debt incurred during the 2007 National Elections by hiring a motor vehicle from a company called Towi Smash Repairs.
8. The Leader pleaded not guilty to all allegations necessitating a trial.
Evidence against the Leader.
9. Eight (8) witnesses were called by the lawyers assisting the Tribunal. The evidence by Mr. Richard Pagen contains all the documents that were tendered by consent. This witness is a lawyer by profession and he is employed by the office of the Ombudsman Commission. He holds the position of Director of Leadership Division.
10. The Leader, Hon. Boka Kondra MP, Member for North-Fly Open Electorate and Member of Western Provincial Assembly and Minister for Tourism, Arts & Culture was elected into the Parliament 27th July 2007. He has been a member of parliament since then to date.
11. The evidence against the leader tendered through this witness show that three sums of monies were misapplied by the leader. On the first amount of K85, 276.00, the evidence reveals that, between 2008 and 2009, the leader applied this sum of money for purposes of employment of electoral staff, with some of it used for electoral travels or trips, by air travel from the member's electorate to Port Moresby and back to his electorate. He used some of that money to pay for travelling on electoral duties and rented an office space at Kiunga town.
12. Part of the evidence on the documents tendered which I will refer to later show that, the above amount was taken from the District Services Improvement Program (DSIP) and the District Support Grant funds. These were funds held in the North-Fly District Treasury Operating Account. Oral evidence by Mr. Ronald Manise Dmonai, the then District Administrator for North-Fly District shows that the Leader gave directions to him to make payments to Fly Mini Bakery and Ambiwid Holdings Limited for rental payments for the years, 2008, 2009 and part of 2010.
13. There is further evidence that, the leader received electoral allowances of various sums in 2009 and part of 2010, he did not use any of these monies for renting the office space Mini Fly Bakery and Ambiwib Holdings Limited. An amount of K76, 500.00 was spent from the public monies to be used to pay for his electoral office rentals and renovations. According to the evidence of Mr. Richard Pagen in his affidavit, and that of Mr. Dmonai, this is contrary to the Public Finance Management Act. For further highlight on the evidence on amounts spent for renting of office space, refer to the following documents of the S/Rs:
D3 page 33 S/Rs letter from OC of 18.3.10 to Prov. Administrator-Western Province.
3D, Member's salary S/Rs page 90 for 2008, 2009 & 2010.
3E, Leader's pay-slip S/Rs page 93.
D13, letter from OC of 20.8.10 to National Parliament on leader's salary & emoluments S/Rs page 170.
D26, letter from OC of 29.8.11to National Parliament on leader's matters, S/Rs page 424.
D24 "KM1" page 402 S/Rs Stat Dec by Kaspar Martins of 26.2.11.
Attachments-A a letter from OC to Martinus on leadership matters S/Rs p 405),
-B "KM2" reply by Martinus to OC of 26.2.11 S/Rs 109
-C "KM3" Cheque No.012964 to Ambiwid Holding of 26.2.11to for amount of K1, 238.17 for rental of office space.
-D "KM4" copy of BSP Cheque No.12859 paid to Ambiwid Holdings for maintenance of vehicle and reimbursement of personal monies and office rental bills S/Rs p 413 amounting to K24, 000.00.
-E "KM5"Lease Contract for Sect 10 Lot 19 for the property in Kiunga, see S/Rs p 415.
-The total amount alleged in Allegation 1 was K85, 276.00.
14. The total amount alleged in Allegation 1 was K85, 276.00. On record, a total of over K76, 000.00 was approved by the leader as he wrote to the District Administrator reminding him of various outstanding rental payments as the Leader being the Chairman of the District Services Improvement Program (DSIP) and the District Support Grant (DSG) had moved agendas in its committee meetings for funds to be approved for rental of office space.
15. On category 2 allegations, the evidence is that the Leader misapplied the sum of K134, 966.62 between the years 2008 and 2010 for purposes of renting accommodation in Port Moresby for him and his family and even his supporters. It is alleged that, between the above periods, the leader was already receiving a fortnightly rental payment in his salary of K1, 800.00, the leader being the Chairman of the North-Fly District Services Improvement Program (DSIP) and the District Support Grant (DSG), he allowed himself payments for his rental accommodation for the year 2008 a sum of K46, 800.00. For the years 2009 and 2010, he was paid sums of K62, 600.00 and K48, 814.00 for 2010 up until 22nd September 2010. The above sums were taken out from the (DSIP) and (DSG) held in the North-Fly District Treasury Operating Account. (See Doc)
16. Summary of amount alleged in Allegation 3. The total rental payments for accommodation in Moresby amounted to K134, 966.62. The
following documents copies of Bank Cheques, General Expenses and Requisitions for expenditures are evidence of the amount alleged
in Allegation 3:
For the years 2008, 2009 and 2010 the Leader was being paid housing allowances equivalent to that of a Governor when he received in:
-Letter of demand dated 16.7.09 from Ambiwid Holdings Ltd to the Leader for outstanding rental payments from January to June 2009 – K20, 000.00, see page 109 S/Rs.
-Letter from Freelance Ltd to the leader dated 1.11.09 for rental payment of K26, 083.33 for November 2009. See p 115 of S/Rs.
-BSP cheque No.184 dated 24.9.10 for the sum of K50, 049.98 payable to Palimb Investments Ltd, see p 177 S/Rs.
-BSP bank cheque No.199 dated 8.12.10 for the sum of K47, 666.68 payable to Palimb Investments Ltd, see p 178 S/Rs.
-BSP bank cheque No. 237 for K12, 766.66 dated 16.3.11 paid to Palimb Investments Ltd, see p 184 S/Rs.
-BSP cheque No. 13198 for K85, 799.96 dated 8.3.2010 payable to Palimb Investments Ltd, see S/Rs p 185.
-Total amount involved in was more than K134, 966.62 the amount alleged in Allegation 3.
17. There are many more transactions which I do not wish to go into in detail and if all of them are added up would be more than the amount alleged in Allegation 3.
18. Evidence adduced in support of Allegation 5, show that between 2008 and 2010, the leader intentionally misapplied a total of K18, 200.00 to settle his personal outstanding debt since 2007 National General Election. That the above amount was paid to a company referred to as Towi Smash Repairs in Port Moresby.
19. In a letter dated 9th February 2009 written by the managing director of Towi Smash Repairs an invoice for vehicle hire was attached to it for an amount of K18, 200.00 for thirteen (13) days in July, & fifteen (15) days in August 2007. In that letter the manger expressed concern that, the amount had been outstanding for a long time and no payments had been made. (See documents M, (i) pages 102 and 103 of the SORs & Richard Pagen' Affidavit pages). Again to settle this debt, money was paid from the (DSIP) and (DSG) held in the North-Fly District Treasury Operating Account. The summary of Allegation 5 shows:
-Letter from manager of Towi Smash Repairs to North-Fly District Administrator date 9.2.09 requesting payment of K18, 200.00 for outstanding payment for hire vehicle, see p 102 & 103on S/Rs.
-Requisition for expenditure form for above amount dated 18.5.09, see p 106 on S/Rs.
-General Expense form dated 18.5.09 for K18, 200.00 paid to Towi Smash Repairs being for outstanding vehicle hire bill, see p 107 on S/Rs.
-Total amount involved K18, 200.00.
20. Two of the witnesses working with the National Parliament were called. Mr. Jack Bagita who is currently the Executive Officer to the Salaries and Remuneration Commission working in the House of Parliament and Mr. Renagi Kila currently the Officer-in-Charge of Members of Parliament Emoluments Section, Parliamentary Services, National Parliament gave evidence of Members of Parliament entitlements. In case of Renagi Kila, he was examined and cross-examined on the pay slips of the leader. He was asked if the entitlements included vehicle allowances and accommodation and other public utilities. He said, part of salaries components of the Members entitlements is included in the pay slips. (See pages 90, 93 & 111 of the Statement of Reasons (S/R).
21. In case of Mr. Jack Bagita, his evidence was very brief. His evidence substantiated the evidence by Mr. Kila that all members of the Parliament are paid vehicle and accommodation allowances and other entitlements through their salaries. (See Ex. "36" his affidavit).
22. The former District Treasurer for North-Fly District, Western Province Mr. Karl Kanong gave evidence that he was substantively appointed to that position on 14th January 2002 and since then, he had been the District Treasurer up to the time the leader was elected into Parliament in 2007. His evidence shows that, the North-Fly District Treasury Office is responsible for all accounting functions of the six Local Level Governments in the District including the office of the leader and administration of District Support Grants and the District Services Improvement Program.
23. He was referred to documents in pages 278 and 281 of the S/Rs, the first document a letters from the OC to him requiring him to provide information on his role as the District Treasure of North Fly District. He was asked to confirm where sources of funds came from to fund rental payments for the period from 2007 to 2010 and how much money was spent on rental payments.
24. In page 281 in the S/Rs is the witness's reply to the above letter. A total amount of K36, 500.00 was paid for the leader's electoral office rental payments for 2008. Again for the year 2009, the JDP&BPC approved an amount of K40, 000.00 for rental for the office space. According to this witness, he confirmed what he said in his affidavit that, the JDP&BPC did not approve payments for rental accommodations for the leader.
25. Mr. Donald Manise Dmonai was the Executive Officer of the North Fly District Administration. He is currently the Deputy Provincial Administrator in charge of Policy & Technical Services for the Provincial Administration in Western Province. This witness confirmed in his oral testimony the information he gave to the Ombudsman Commission on a letter dated 25th February 2011. The reply was hand written. (See his affidavit Ex. 00).
26. The affidavit of this witness contains about 90 documents in which Mr. Dmonai compiled when the Ombudsman Commission asked him to provide information on how the monies were applied from the District Treasury Office. These documents are also included in the S/Rs. I will refer to some of those documents later when I do a summary of amounts involved in each allegation.
27. Kaspar Martinus gave evidence that after the general election in 2007 he commenced working with the North Fly Open Electorate
Electoral Office and worked with the leader as an Executive Manager for the Member of Parliament for the North Fly District. His
affidavit contains information on two payments done from the North Fly District Treasury office. There was a payment of K1, 238.17
Cheque No. 012964 dated 9th December 2009 for rental of an office space. The contract for the lease agreement was between the District
Administration and Ambiwid Holdings Limited. (See pages 402-415 S/Rs).
28. Another Cheque No. 12859 dated 28th November 2009 for a sum of K24, 000.00 was paid to the same company according to paragraph
9 (b) of Kaspar Martinus statutory declaration dated 26th February 2011, he alleges that the amount was spent for payment of fuel,
maintenance of vehicle, reimbursement of personal debts and some went for rental payment of the office space.
29. Mr. Jack Naiyep was the proprietor of PALIMB INVESTMENTS LIMTED and Freelance Limited. He gave brief evidence about writing a letter of invoice addressed to the Leader on which he advised the Hon. Kondra about rental payments for the months of July 2010 to December of that year. The invoice quoted an amount of K85, 799.96 at K2, 500.00 per week. This money was for rental payments for the property described as Unit 11, Section 42 Allotment 01 at Turua Avenue, BOROKO, National Capital District. (See pages 136, 186, 187 & 188 S/Rs).
30. Questions were asked in chief and cross-examination as to why the rental payment for the month of February and August 2010 was in excess of the other months. The witness explained that, excess charges were for accommodation provided for supporters and relatives of the leader and for the use of water.
31. He was asked to identify his signatures on other documents in the S/Rs in pages133, 139, 147, 172, 177, 178, 179, 180-181, 185, 186, 188, 236, 238, 240, 247, 249, 251, 255. The witness said, he signed all those invoices and correspondences.
32. The witness was asked in cross-examination if he owns Freelance Limited and Palimb Investments Limited. The witness answered that he owns the two companies. He was asked if he knew why the leader got sick when renting his property in Tokarara. The witness said, he knew about the leader getting sick, but did not know why he was sick. He was asked if there was any contract between him and the leader for the rental. The witness said, there was none for the house in Tokarara but the leader moved to another house in Boroko.
33. John Geno was the last witness. He is the Senior Investigator with the office of the Ombudsman Commission. He was called to give evidence on this inquiry as to why witness Damson Dwom did not come to give evidence. He said Damson was the electoral officer in the office of the Leader at the time he was elected into the parliament until the investigations commenced on the current allegations. The witness said, Damson was summoned to give evidence but he did not turn up despite the fact that he had travelled to Moresby for this inquiry.
Brief of the Leader's Evidence.
34. Three witnesses including the leader were called. The leader himself denied all allegations. In his evidence, the leader said, in chief that although he knew of the arrangements for the expenditure of funds in his office, he did not see anything tangible evidence of documents in relation to the agreement to rent the office space in Kiunga. He was asked why, and the witness said, because the District Administrator was responsible for arranging the payments.
35. In answering a series of questions in examination in chief, the leader said, the D/A was responsible for paying the rental payments and he did not know of arrangement for how much money was being paid for monthly rental. He said, when he was in Moresby in 2008 to 2009, Mr. Dmonai took him out from his old rented property at Tokarara to Boroko where the District paid for his rental unit.
36. He denied seeing any lease agreement but admitted he moved from rented property at Tokarara to Unit 11 at Boroko. He denied knowing Jack Naiyep and said, he never met him before. He was asked in chief about signatures in Ex. 39 and the one in page 464 in the S/Rs and asked if the two signatures match each other. The leader said, the one on page 464 on the S/Rs is his signature but the one in the referred exhibit is not his. No hand-witting expert was called to prove whose signature the one was denied by the Leader.
37. The leader denied seeing or knowing anything about rental invoices in page 186 and 187 in the S/Rs. The invoice was a period of six months. He also denied seeing or knowing rental Invoice No. 166 dated 1.8.2010 for the amount of K73, 883.30. He denied knowing the company referred to as Freelance Limited.
38. In cross-examination, the leader denied knowing when he moved into the new office space in Kiunga. Asked why did he not move to the office used by the former member for North Fly Open. He said, he knew but when he moved in into it, he was asked to move out. Asked if he knew about payments being made for the new office space. The witness said, he did not know.
39. The leader however admitted in cross-examination that he knew he was being paid in his salary accommodation and vehicle allowances. He contradicted himself by saying in chief that he did not know Jack Naiyep but in cross-examination, he said that he knew of Jack Naiyep.
40. The last witness was Torum Mange. This witness evidence relates to an invoice dated 9.2.2009 compiled by him to the North Fly District Administrator. A letter of demand was written by this witness from his office Towi Smash Repairs requesting payment for an outstanding payment for the hire of a Toyota Hiace 15 seater bus that was hired by the leader during the 2007 election campaigns. Mr. Mange denied knowing anything about the hired bus and said, he only saw the document in 2014.
Applicable Law & Principles.
41. Mr. Molloy, counsel representing the Leader submitted that on the issue of misappropriation, the District Administrator actually arranged for a lease premises because the Leader was in need of an office space from an entity known as Fly Mini Bakers and Ambiwid Holdings Limited. On Category 1, counsel submitted that this was not a case of misappropriation and the money was spent on rental premises.
42. On Category 2, counsel argued that, the charge is bad in law and that it should be dismissed. Counsel's argument is based on the grounds that the charge is not limited to a single breach as it charges s.27 (1) (a) and (b) of the Organic Law. He says the allegation is in essence a duplication of Allegation 1. He cited and quoted passages of cases such as Re Puka Temu (2006) N3099 and Re Sir Michael Somare (2011) N4224 for the argument that such pleadings are unnecessary as they "overload" the case.
43. On the remaining Allegations, counsel argued that there is evidence that the cheques were signed by authorized persons like the District Administrator and Mr. Dmonai approved and signed inflated cheques for service providers.
44. Mr. Kaluwin replied by speaking to his written submission by referring to the evidence of the key witnesses called during the hearing of these allegations. He submitted that there is no duplicity. Counsel referred to the case of Re Sigulogo [1988-89] 384 the Court in that cases said, the charges overlap because they were similar in content. The Supreme Court in the later case of Application by Nilkare [1997] PNGLR 472 the Court said that s.27 (2) deals with a particular conduct and s.27 (5) is in respect of his office or position with regard to the performance a leader's functions and that is misconduct.
45. I have considered counsels' addresses on verdict. 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. The tribunal does not sit as a court of law but its duty is to "investigate and determine cases of alleged misconduct in office referred to it". (See s.28 (1) (9) of the Constitution).
46. It must make due inquiry into the matter or matters referred to it, with regard to legal formalities an in strict compliance with the rules of evidence and pursuant to provisions of the Evidence Act and "may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice." (See s.27(4) of the OLDRL & s.59 of the Constitution).
47. The Constitution and the OLDRL do not clearly say who bears the burden of proof but the Supreme Court case of re James Eki Mopio [1981] PNGLR 4156 it was decided that the standard of proof is above the civil standard but close to the criminal standard. So being a quasi judicial body the tribunal must act judicially and in compliance with the principles of natural justice as prescribed by s.59 of the Constitution: Hon. Andrew Kumbakor, Member for Nuku Open Electorate (8.5.2003) N2362.
48. The tribunal's duty is thus to "inquire" or "investigate and determine" the truth or otherwise of the allegations that have been referred to it: Bonga v Sheehan [1997] PNGLR 452. Having said, that, I now briefly outline the applicable law.
49. The Organic Law on Duties and Responsibilities of Leadership (OLDRL) provides that where a leader intentionally applies any money forming part of any fund under the control of Papua New Guinea Government is guilty of misconduct in office. Section 13 of the above legislation states:
"13. Misappropriation of funds of Papua New Guinea.
(1) A person to whom this Law applies who –
- (a) intentionally applies any money forming part of any fund under the control of Papua New Guinea to any purpose to which it cannot be lawfully applied; or
- (b) intentionally agrees to any such application of any such moneys, is guilty of misconduct in office."
50. Similarly Section 27 (1) – (5) of the Constitution says that Leaders to whom PART III Division 2 on the Leadership Code applies, have the duty to conduct fairly both in public and private and to avoid demeaning their offices. The above section states:
"Responsibilities of office.
(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not—
(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(b) to demean his office or position; or
(c) to allow his public or official integrity, or his personal integrity, to be called into question; or
(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.
(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).
(3) It is the further duty of a person to whom this Division applies—
(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt."
(4). The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.
"(5) A person to whom this Division applies who—
(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),is guilty of misconduct in office."
Summary of findings.
51. As I find, there is ample evidence to show that, between December 2008 and December 2009 and part of 2010, the Leader intentionally applied monies forming part of a fund under the control of Papua New Guinea, by the North-Fly District Treasury office in the District Services Improvement Program (DSIP) and the District Support Grants to purposes for which it was not lawful.
52. On Allegation 1, I find that, the Leader used more than K85, 276.00 from the DSIP Funds and DSG held in the North-Fly District Treasury Operating Account to pay for the office rentals for the North-Fly Open Electorate in the North Fly District when he was already allocated an annual amount K38, 623.00 payable over 26 pay periods each year through his fortnightly salary. On this allegation, he was double dipping from the Government's money when he was already being paid a fortnightly amount of K1, 800.00 for employment of electoral staff, electoral travel, air travel between Port Moresby and the Member's electorate, electoral duty travels and electoral office rental. He is guilty of misconduct in Office.
53. On Allegation 3, it has been proven that, the Leader intentionally applied a sum of K134, 966.62 forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful pay for rental accommodations in Port Moresby. This was misconduct in office. Again it is double- dipping from the Government's money under the control of the North-Fly District Treasury Operating Account.
54. Allegation 5 involved an amount of K18, 200.00. It has been proven to the required standard of prove that, the Leader misapplied funds from the District Services Improvement Program (DSIP) funds and the District Support Grant (DSG) to service a personal outstanding debt incurred during the 2007 National Elections by hiring a motor vehicle from a company called Towi Smash Repairs. I agree with Mr. Kaluwin that there is no duplicity as the Leader had been convicted under s.27 (2), it follows failure to performing function or duties amounts to misconduct in office under s.27 (5) (a) of the Constitution. I make the following findings.
55. Findings – Allegation 1 – Guilty.
Allegation 2 – Guilty.
Allegation 3 – Guilty.
Allegation 4 – Guilty.
Allegation 5 – Guilty.
Allegation 6 – Guilty.
56. The findings of these allegations exhibit glaring misappropriation of public monies by the Leader and his service providers. I refer to a few examples of such dirty business. On a letter dated 2nd November 2008, from the manager of Freelance Limited, to the District Administrator on services provided to the Leader, three of the five services provided were:
-preparation of financial statements for the last seven (7) years.
-drafting of Business Proposal for the company.
-advice provided on the operation of the company.
57. A total amount charged for the above five services was K24, 950.00. (See p 225 of S/Rs). The issue is whose company was Freelance Ltd engaged to prepare financial statements for when the Leader was only elected into office on 27th July 2007 and if he had a company, this would have been totally outside the official duty expenditures.
58. A second example is found in pages 253 & 255 in the S/Rs on rental invoices. In the earlier page, the invoice No. 148 of 1st July 2010 included the months of July – December 2010. Weekly rentals were K2, 500.00. For the months of July, September to December, monthly rental was K11, 916.66. For August it was K26, 216.66. The total amount for the above period was K85, 799.96.
59. It would seem like in page 255 in the S/Rs, another Invoice No.165 was made out for the same period, this time from August to December 2010. The total amount in the invoice was K73, 883.30. In my view that was a double payment for the same period. Again for the month of August a sum of K26, 216.66 was charged.
60. I recommend that, the Leader and his associates be criminally prosecuted for misappropriation and stealing from the public purse.
Summary of the Six (6) Allegations.
Category 1
Misapplication of K85,276.00 from the North-Fly District Services Improvement Program (DSIP) and District Support Grant (DSG) held in the North-Fly District Treasury Operating Account for rental payment for North-Fly Open Member's Office in Kiunga Western Province.
Allegation 1.
That between December 2008 and December 2009, the Leadership intentionally applied DSIP and DSG funds to purposes for it was not lawful.
In that, the Leader used a total of K85,276.00 from DSIP and DSG held in North-Fly District Treasury Operating Account to pay for office rentals for the North-Fly Open Electorate when he was already specifically allocated K38,628.00 per annum payable over 26 fortnights as salary for:-
The sum is not subject to an acquittal. Thereby breach Section 13 (a) OLDRC.
Allegation 2
That between December 2008 and December 2009 the Leader failed to carry out the obligation imposed by Section 27(1) of the Constitution; in his associations with the other persons in such a way that he:-
By using his office for personal gain In that the Leader used a total of K85,276.00 from DSIP Funds and DSG held in the District Treasury North-Fly District to pay of Electorate office rentals, of which K38,623.00 per annum was allocated and inbuilt into and payable over 26 fortnightly salary to pay for:-
This sum is not subject to an acquittal.
Thereby breaching Section 27 (5) (6) of the Constitution for misconduct in office.
Category 2.
Misapplication of K134, 966.62 from the North-fly District Services Improvement Program (DSIP) Funds and District Support Grant (DSG) held in the North-Fly District Treasury Operating Account for payment of rentals for accommodation in Port Moresby.
Allegation 3.
That between 2008 and 2010 the Leader intentionally applied a sum of K143, 966.62 forming part of a fund under the Control of Papua
New Guinea to purposes for which it was not lawful;
In that whilst receiving housing allowance of K1800.00 in his fortnightly salary, the Leader allowed the use of K134,966.62 from DSIP
and the DSG held in the North-Fly District Operating Account for rental payments for accommodation for himself and his family in
Port Moresby as outlined below:-
For the year 2008, 2009 and 2010 the Leader was being paid housing allowances equivalent to that of a Governor when he received in:
Thereby misconduct in office pursuant to Section 13 (a) of the OLDRL.
Allegation 4
That between 2008 and 2010 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 association with other persons in such a way that he:-
Furthermore, the Leader failed to carry out the obligations imposed by Section 27 (2) of the Constitution;
By using his office for personal gain. In that whilst receiving housing allowance for K1, 800.00 in his fortnightly salary, the Leader
allowed the use of K134, 966.62 from DSIP and DSG held in the North-Fly District Operating Account for rental payments for accommodation
for himself and his family in Port Moresby. Thereby breaching Section 27 (5) (b) of the Constitution for misconduct in office.
Category 3.
Misapplication of K18,300.00 from the North-Fly District Services Improvement Program (DSIP) Funds and District Support Grant (DSG) held in the North-Fly District Treasury Operating Account to pay off a personal debt.
Allegation 5.
That between 2008 and 2010 the Leader intentionally applied money forming part of a fund under control of Papua New Guinea to purposes for which it was not lawful; In that the Leader misapplied a total of K18, 200.00 from the DSIP funds the DSG to service a personal outstanding debt incurred during the 2007 National Elections by hiring a motor vehicle from a company called Towi Smash Repairs and outlined as follows:-
➢ The Leader incurred debts during his election campaign in 2007 and did not pay these debts for almost two (2) years.
➢ He then allowed public funds from DSIP and DSG to be used to pay off this personal debt.
➢ The Leader used public funds DSIP and DSG totaling K18, 200.00 to settle his outstanding debt.
➢ The leader breached the DSIP and DSG guidelines by authorizing funds to be used outside these guidelines.
Thereby being in breach of Section 13 (a) of the OLDRL for misconduct in office.
Allegation 6.
That between 2008 to 2009 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 Further the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution.
By using his office for personal gain
In that the Leader misapplied a total of K18, 200.00 from DSIP funds and DSG to service his outstanding 2007 National Election debt
which came about as a result of hiring a motor vehicle from a company called Towi Smash Repairs during the 2007 National Election
which are outlined above in full in Allegation
Facts – Briefly.
Again after 2012 General Elections, Mr. Boka Kondra was victorious and to date is serving his second term in the 8th National Parliament.
Summary of Witness Evidence
Witnesses called by Counsel Assisting the Tribunal.
Witnesses called by Counsel for the Leader.
Evidence
Category 1
Misapplication of North-Fly DSIP and DSG of K85, 276.00 held at North-Fly District Treasury Operating Account for rental payment for North-Fly Open Member's Office in Kiunga, W.P.
Allegation 1.
Category 2
Misapplication of K134, 966.62 from DSIP and DSG funds held at North Fly District Treasury Operating Account for payments of rentals for accommodation in Port Moresby.
Allegation 3
Category 3
Servicing North Fly Member's 2007 National General Elections debts.
Allegation 5
37. It is interesting to note, the letter from Towi Smash Repairs dated 09th
February sent to North Fly District Administrator upon receipt of the letter, a hand written note was recorded and read as follows "Mr. Boka Kondra used this Bus during the election period in 2007 – This Bus was not used by North Fly District Administration. He used the Bus for his election campaign and during counting period. Refer to Hon. Boka Kondra MP. This is his own commitment during that period" I will briefly discuss later hereunder.
38. My perusal of SOR documents and exhibits I could not find record or copy of cheque payments. But the relevant financial documents were raised as such I can reasonably infer that amount of K18.200.00 was paid to Towi Smash Repairs. This is confirmed by Mr. Toru Mange the sole witness for the Leader who came to clear his name in this proceeding.
Submissions on Verdict.
Counsel for the Leader-
39. Briefly the eleven pages submission touches on the element of intention of the Leader on the use of DSIP and DSG funds, also that such use was not permitted. The submission is that the essential element has not been established.
40. Same line of arguments is for both the rental payments for the office and the accommodation rentals in Port Moresby.
41. Furthermore another line of argument advanced is that Mr. Ronald M.
Dmonai the then District Administrator for North Fly was relied on, as he (DA) was the person in authority was responsible for raising of the Financial Forms for payments that were paid out for Electoral Office, family accommodation and the hired vehicles outstanding debts.
42. As for the Constitutional breaches that Section 27(1)(2) of the Constitution issues ambiguity were raised and as such the charges are bad in law, based on Australian Case laws of Johnson v Miller [1937] HCA 77; (1937 59 CLR 467, Byrne v Baber [1964] VicRp 57; (1964) VR 443, and Boral Gas (NSW) Pty Ltd –v- Magil (1995) 37 NSWLR 150. Indeed I have no opportunity to read them, but I am sure there are binding PNG cases laws which adequately addresses the issue raised by the learned counsel.
43. The counsel for the Leader also raises the issue of duplication or duplicity on Allegations 1 and Allegation 2. Same line of argument is for the other Allegation. Here rulings on Tribunal matter Re Puka Temu (2006) N3099, Re Sir Michael Somare (2011) N4224 were relied upon.
Counsel Assisting Tribunal
44. In the 9 ½ page submission, The Counsel Assisting the Tribunal Mr. Pondros Kaluwin, the Public Prosecutor takes the Tribunal on the allegations 1 to 6. As set out in the Reference to which the Leader denied them all.
45. It also highlights, SRC Determination G007-17 the electoral allowance are to be used for;
a) employing of electoral staff
b) electoral travel
c) air travel between Port Moresby and MP's electorate, all electoral
duties
46. It is strongly advanced by the counsel that the Leader knew of where the funds are coming from to offset his debt, pay office and accommodation rentals. As the payments were not coming from the Leader's fortnightly salaries where allowances are in-built for his activities. So obviously the Leader has knowledge of the source the payments are coming from.
47. On the issue of duplicity, it is argued by the Counsel Assisting the Tribunal that there is no duplicity as stated in the Tribunal case of Re: Sigulogo [1988- 89] PNGLR 384.Also the case of in the Application by Nilkare [1998]PNGLR 472 at 496 Kapi DCJ were quoted.
48. The tribunal was finally invited to view the style of drafting of the Reference to that of others like in Sir Puka Temu's Reference.
Relevant Laws
49. Like I expressed in Hon Ronny Knight's Leadership Tribunal, that is PNG Constitutional Planning Committee Report 1974 Chapter 3. The Leadership Code outlines quality of Leadership in the following statements. "The success of a nation, we believe, depends ultimately on its people and their leaders. No amounts of careful planning in government institutions or scientific disciplines will achieve liberation and fulfillment of the citizens of our country unless the leaders those who hold official positions of power authority or influence and have bold vision, work hard and are resolutely dedicated to the service of their people."
50. The above is the basis for the Organic Law on duties and Responsibilities of Leadership which came into operation on Independence day (16-09-1975) to implement Division 111.2 (Leadership Code) of the Constitution.
51. Part 111. Basic Principles of Government of the Constitution provides in Division – National Goals and Directive Principles. Section 26(1) (c) provides that "all other Members of Parliament and (d) Member of Provincial Assemblies...."are persons to whom this law applies. And in Section 27 of the Constitution sets out responsibilities of high office Leaders hold.
52. The Organic Law on Duties and Responsibilities of Leadership (OLDRL) also provides for and protects the integrity of leaders and the offices they hold. This Section 5 and 6 of OLDRL state that leaders must not use their offices for gain of personal benefits or personal interest.
53. In making due inquiry referred to it, the Tribunal shall apply strict rules of evidence and the relevant provisions of Evidence Act, Chapter 48 as long as principles of natural justice are complied with Section 27(4) OLDRL.
Findings
54. As set out above, there are six allegations categorized in 3 categories, in that two allegations in one category. That is to say the style of drafting of the Reference is that in Category 1. Allegation 1 is laid pursuant to Section 13(a) of OLDRL. Whereas Allegation 2 is misconduct under Section 27(5) (b) of the Constitution. Same trend is for Category 2 and Category 3 allegations.
55. Allegations 1,3 and 5 come under Section 13(a) of OLDRC misconducts.
Whereas Allegations 2,4 and 6 are under Section 27(5)(b) of the Constitution misconducts or breaches.
56. The Tribunal had, the benefits of pursuing the SOR, hearing eight (8) witnesses called by Counsel Assisting the Tribunal. Also the Leader was extensively examined plus a sole witness called for the Leader.
57. The law is well established, on the issue of what is the standard of proof. In Re James Mopio [1981] PNGLR 416 and followed in Hon Michael Nali MP, N2378 Member for Mendi Open (2003) N2398, it is accepted that, the prosecution has the burden. The Tribunal must be reasonably satisfied to the truth of that allegation.
58. From the Joint District Planning and Budget Priority Committee Meeting Minutes No. 04/07, in which the Leader was the Chairman, there is no agenda nor resolutions passed for the funding of electoral office or for the accommodation or even for the debt settlement. There is indeed item 1 which on the budgetary allocations, the Leader requested 10% which is K400,000.00 from K4 million the National Government allocated to North Fly District from the Supplementary Budget to fund various project with guidelines from the then office of Rural Development (p45-63 SOR).
59. The set guidelines are strictly for Education, Health, Law and Justice Improvement Program as well as Water Improvement Program. As for the 10% for MP's administrative costs, of which he sought approval from the then office of Rural Development in his letter dated 23rd October, 2007 (p.43SOR). I have not viewed in the SOR any response from ORD. I ask myself what is the 10% administrative cost for. Would it be for rental of office and accommodation?
60. The North Fly JDP & BPC, like elsewhere in Papua New Guinea is subject to strict guideline operations as set out by ORD. It is the duty and responsibility of Mr. Ronald M. Dmonai as the CEO, Financial Delegate and the District Administration of the district to oversee the sole guidelines are complied with.
61. As can be seen in the documents in the SOR and from Mr. Dmonai's answers in his examination as witness, as a Financial Delegate, he has signed all the financial forms especially Finance Form 4, that is the General Expenses form, which is the last check and balance form before the District Treasury draws up cheque payments, for relevant services rendered to the district.
62. Mr. Kaspar Martin was also responsible for signing of some Requisition for Expenditures Forms, knowing very well he has interest in Fly Mini Bakery and Ambiwid Holdings Ltd. I ask myself would this be a systematic process in place to misapply government funds.
63. Requests for payments by Freelance Ltd and Palimb Investment Ltd as can be seen in the documents in the SOR and from answers given by Mr.Jack Naiyeb are by way of Rental Invoice forwarded to either the Leader or to the North Fly District Administrator.
64. As for the Leaders hire of vehicle debt from Towi Smash Repairs is by way of a letter and as Invoice.
.
65. As the Counsel Assisting the Tribunal points out in his submission on page 6 from middle down, "the Leader was not paying his rental from the housing allowances" There is no denial or dispute the Leader's payslip shows he was not paying electoral office rentals nor the accommodation for him and his family in Port Moresby.
66. From the documents in the SOR and from the question put to the witnesses and their respective answers, it is reasonably satisfied that the rentals for the North Fly MP Electoral Office and for the same Leaders accommodation in Port Moresby came from the DSIP and DSG funds, the Operating Accounts held at North Fly District Treasury in Kiunga, Western Province.
67. The cross examination of the Leader by the Counsel Assisting the Tribunal:-
Q.3 "When elected as a Leader you came to know what entitlements you have?
A. Yes"
Q.4 "How did you know?
A. By the SRC"
Q.5 "Who gave you SRC?
A. Parliament"
Q.6. "Did you attend the induction course by O.C.?
A. No, because of busy schedule."
68. Mr. Richard Pagen, towards the end of his Examination in Chief by Counsel Assisting the Tribunal following questions were put to him:-
Q. "Elected Leaders any induction course for them?
A. O.C. carries out awareness on the role of OC. In every election year OC conducts induction after Return of Writs. Induction training."
Q. "Who is to attend?
A. It is intended for all MP's."
Q. "In 2007 was induction conducted?
A. Yes, both for returning and newly elected, also in 2012 which Chief Secretary organized for all Departments and Agencies. We did one week training."
Q. "Does it cover DSIP and DSG?
A. We did our induction and Officer of Rural Development does all those monetary related matter."
69. There we have it, Mr. Pagen ascertains there was a induction course held for both returning and newly elected leaders. The Leader is honest enough to admit he did not attend the vital or very important course or workshop early in his role as the Leader of his people of North Fly district. By not attending the induction course in 2007, no doubt he has missed out of vital information on his new role as Leader at the national level.
70. Being an elected Leader as an MP in the National Parliament is an envied role, not all candidates will become MP. Those that are elected to be Leaders, have high expectations to perform at that level. They are remunerated highly however are subject to SRC Determinations as shown in witness Jack Bagita's Affidavit and Attachment. The elected Leaders are subject to public scrutiny as well as the OLDRL.
71. The Counsel for the Leader in his submission as I summarize above advances element of intention. The argument advanced is, there is no evidence at all that he "intentionally" applied moneys from DSIP or the DSG to pay rents and other debt.
72. That is all very well said, however my views are in following bullet points:-
73. For the Leaders to say he relied on the District Administrator or any other public servant is not good enough reason for the payment of electoral office and accommodation rents. Had the Leader attended the induction course he would be more aware of SCR Determination or the duties and responsibilities which OC has conducted.
74. I am reasonably satisfied Allegations 1 in Category One and Allegation 3 in Category 2 have been proven and established to my satisfaction that the Leader had breached Allegations 1 and 3.
75. I now turn to Category 3 Allegation 5, the Leader misapplied a total of
K18, 200.00 from DSIP and DSG funds to service his outstanding 2007 National Electoral debts. He is said to hire a vehicle from a
company known as Towi Smash Repairs.
76. As I said in my paragraph 38 above I now will briefly discuss Allegation 5. When Mr. Ronald .M.Dmonai, the District Administrator received a letter from Towi Smash Repairs, he by hand writing noted matter is for Hon. Boka Kondra. However after a wait from February 2009 to 18 May, 2009 relevant finance forms were raised that is Requisition for Expenditure and General Expenses Form, the said amount is said to have been paid.
77. In Re-examination of Mr. Ronald .M. Dmonai by the Counsel Assisting the Tribunal relevant ones are as follows:-
Q3. "How do you know the Electoral Officers used the bus?
election campaign. The officers are campaign managers."
Q4. "Look at P102 notations, who wrote it?
Q.5 "Why did you do that?
A. It was for the MP's commitment."
Q6. Did you refer it to him?
Q7. Was there a response?
Q8. "Why did you make the payments?
SRC Determinations, which he did not so I was forced by the owners of Towi Smash Repairs to pay."
78. Looking at paragraph 77 above plus the relevant finance forms and the dates entered. I see that the District Administrator did not wait for 12 months or 4 months as he puts it. The record shows it was mere three months and he raised the said finance forms and submitted for payments. As it is now accepted, payments were made.
79. For category 3, Allegations 5 and 6, the submission by the Counsel Assisting the Tribunal is in page 9 paragraph 2 I quote "This is a matter of who to believe. To arrive at the findings the credibility of the witnesses and their motives has to be considered." The issue as put by the learned counsel is whether the service was provided to the Leader.
80. For allegations in Category 3 those who would know are, the Leader himself, his associates and the owners of Towi Smash Repairs.
81. Witness Toru Mange, who is co-owner of Towi Smash Repairs. The other co-owner is Wix Tangi. Mr. Mange has left the said entity hoping it was de-registered. The submissions by the Counsel for the Leader relies on what Toru Mange has said in this enquiry.
82. As for the submission by the Counsel Assisting the Tribunal, we have been invited to ascertain who is to be believed. On the same token, the Tribunal is asked to consider the motives in particular witness Toru Mange.
83. The Leader denies any knowledge of the vehicle hired. Toru Mange has no knowledge and wants to clear his name on the K18, 200.00 moneys belonging to the Government which was misapplied.
84. On the other hand Mr. Dmonai, District Administrator and Financial Delegate, signed both the finance forms and submitted for payment through the North Fly District Treasury.
85. Who is to be believed now, in paragraph 78, I have outlined what I heard and recorded in the Tribunal hearing of Mr. Ronald M. Dmonai's answers. It can be seen he did not wait 12 months after the letter and invoice were received from Towi Smash Repairs. There is now evidential record of Mr. Dmonai taking up the matter with the Leader as per his notation on the letter. But more importantly as a Financial Delegate and CEO of North Fly District. He is said to be forced by owners of the said entity to draw up payments.
86. Observing Mr. Dmonai in the proceedings and his answers to some of the questions I hold the view as a chief public servant in the North Fly, with his experience and high qualifications and being from Yangom Tribe in Kiunga. I don't think he should feel any pressure from a Southern Highlander who wants payments from public funds. It is Mr. Dmonai's duty to stand firm on what is right and lawful in carrying out his duties.
87. In my analysis in Category 3 breaches I hold the view that I have certain reservation on how the North Fly District Administrator had gone ahead to address the claims and subsequent payments.
88. For the above reasons, I find it hard to believe or accept what is paid by Mr. Ronald. M. Dmonai, he has not heard or taken up the matter with the Leaders. Therefore I am not reasonably satisfied as to the Leader being guilty of Category 3, Allegations 5 & 6.
Duplicity
Allegation 1 – The Leader is found guilty.
Allegation 2 – The Leader is found guilty.
Allegation 3 - The Leader is found guilty
Allegation 4- The Leader is found guilty
Allegation 5 - The Leader is found not guilty
Allegation 6 - The Leader is found not guilty
R.A.JOHNSON – Member: On 18th April, 2015 the Public Prosecutor presented the Reference relating to allegations of misconduct in office by the "leader" Honorable Boka Kondra MP, Member for North-Fly Open Electorate. The Reference had six (6) allegations falling into three categories. By virtue of the office he held, as Open Member for North-Fly he was at all material times a person to whom Division III.2 of the Constitution (Leadership Code) and the Organic Law on the Duties and Responsibilities of Leadership applied.
2. Upon the Reference being presented to the Tribunal by the Public Prosecutor the Tribunal formally read the Reference to the Leader. The Leader denied all the allegations and was immediately suspended from duty with full pay by operation of the law as spelt out under S. 28 of Organic Law on the Duties and Responsibilities of Leadership (OLDRL).
3. There are two allegations under each Category. Three of the allegations are framed under S.13 OLDRL and the other three are framed under S.27 (1) of the Constitution.
4. The Public Prosecutor called a number of witnesses who had sworn and filed affidavits and tendered documents by consent or through the witnesses and marked as Exhibits. The Leader gave evidence and called an additional witness. A third witness was refused by the tribunal to give evidence for the Leader as he was sitting in Court during the entire inquiry.
5. Richard Pagen, a lawyer by profession is the Director Leadership Division of the Ombudsman Commission. He is aware of all the information in relation to this Leader that was investigated, collated and produced in the book of documents referred to as the Statement of Reasons (SOR). The SOR forms the basis of the Prosecution's evidence. The documents tendered through this witness is marked Exh1-34. The other witnesses' documents are also marked as Exhibits.
6. I will deal with each Category of allegation and discuss the evidence followed by my findings. From the Leader's submissions counsel has raised the issue of duplicity and ambiguity which I will discuss separately.
7. The first Category has two allegations and is as follows-
CATEGORY 1
MISSAPPLICATION OF K85, 276.00 FROM THE NORTH-FLY DISTRICT SERVICES IMPROVEMENT PROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSG) HELD IN THE NORTH-FLY DISTRICT TREASURY OPERATING ACCOUNT FOR RENTAL PAYMENT FOR NORTH-FLY OPEN MEMBER'S OFFICE IN KIUNGA, WESTERN PROVINCE
ALLEGATION 1:
THAT between December 2008 and December 2009 the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea, namely the District Services Improvement Program (DSIP) Funds and District Support Grants to purposes for which it was not lawful;
IN THAT, the Leader used a total of K85, 276.00 from the District Services Improvement Program (DSIP) Funds and District Support Grants (DSG) held in the North-Fly District Treasury Operating Account to pay for the office rentals for the North-Fly Open Electorate in the North-Fly District when he was already specifically allocated K38, 623.00 per annum payable over 26 pay periods (fortnightly salary) to pay for:-
This sum is not subject to an acquittal
THEREBY being guilty of misconduct in office under Section 13 (a) of the Organic Law on the Duties and Responsibilities of Leadership.
ALLEGATION 2:
THAT between December 2008 to December 2009 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 association with other persons in such a way that he:
(a) demeaned his office as member of the Parliament for North –Fly Open and member of the Western Provincial Assembly; and
(b) allowed his official integrity and his personal integrity to be called into question;
AND FURTHERMORE the Leader failed to carry out the obligation imposed by Section 27(2) of the Constitution;
BY using his office for personal gain
IN THAT, the Leader used a total of K85, 276.00 from the District Services Improvement Program (DSIP) Funds and District Support Grant (DSG) held in the North Fly District Treasury Operating Account to pay for the office rentals for the North-Fly Open Electorate the North-Fly District was already specifically allocated K38, 623.00 per annum payable over 26 pay periods (fortnightly salary) to pay for:-
This sum is not subject to an acquittal
THEREBY being guilty of misconduct in office under Section 27(5) (b) of the Constitution.
8. The allegation under this head is for the rental of office space from Fly Mini Bakers for use by the Leader as the Electoral Office in Kiunga. It is alleged that whilst the Leader was receiving fortnightly allowance to cater for his electoral operations he used funds allocated to his electorate to pay for his electoral office rentals from the funds held in the North-Fly District operating Account under the DSIP and DSG.
9. The Leader denies this allegation in that he has no direct dealing with the owners of the property and he did not have any knowledge of the payments. Counsel for the Leader submitted that the Lease Agreement for this property was between Fly Mini Bakers, Ambiwid Holdings and North-Fly Administration and was signed by the District Administrator Mr Dmonai as lessee. The Leader had no involvement with the rental payments and the requisitions raised for the payments were signed by persons other than the Leader.
10. It was also argued that there is no evidence that the Leader "intentionally" applied moneys from the DSIP and DSG funds for office rental and took no part in deciding from which account the rental should be paid from. The payment for the rental for the electoral office was lawful and properly sourced.
11. The Public Prosecutor submitted that there is no dispute that the payments for the office rentals for the North-Fly Open Electorate were paid from the DSIP and DSG funds held in the District Treasury Operating Account. The Leader knew that the Electoral Office is a rented property and he knew from whom it was rented and was aware of the rental arrangements and also knew where the funds were going to be drawn from.
12. From the evidence that is before this tribunal and according to the SRC Determinations G007-17 the electoral allowances are to be used for employment of electoral staff, electoral travel, air travel between Port Moresby and the Member's electorate, electoral duty and electoral office rental. (P. 26; 27; 90 – 92; 93; 111 SOR)
13. On 24th October 2007 in the JDP&BPC meeting of North-Fly Electorate meeting the chairman who is the Leader requested for the 10% of the total allocation of K4 million for his administrative costs which is K400,000.00. (P.49 SOR)
14. In a letter dated 27 March 2009 the Leader wrote to the District Administrator (P.104 SOR) which in part reads:-
"...I see this as an opportunity to start from somewhere therefore please process this amount as part of an upfront payment for rental plus renovation exercise for the office, your support in releasing K20, 000.00 will be greatly appreciated..."
15. On a letter dated 17 August 2009 from Ambiwid Holdings Limited to the Office of the North-Fly MP for outstanding payments (P.108 SOR) there is a handwritten note and I am of the view that it is also by the Leader and he signed which says-
"Acknowledged and my office will attend to its commitment as soon as we are healthy with finance. However there could be other areas of funding we could seek to pay. Advise them to be patient with me please."
16. Evidence shows that the Leader was receiving his electoral allowance in this salary and yet using funds held in the District Operating Account to pay for the rentals of the Electoral office.
17. His response to the Ombudsman Commission that he was paying rentals from his electoral allowance was misleading and false. (p.458 SOR). All the requisitions, general expense forms and cheque payments for the electoral office rentals are drawn from funds under the DSIP or DSG. There is no evidence that the Leader paid from his allowance.
18. The Leader was also allocated 10% of K4 million for administrative costs and if that covered rentals for electoral office then that should have been brought to the attention of the National Parliament Salary Section. The Leader failed to advise salaries of the arrangements for his electoral office rentals and continued to receive the allowance for that purpose through his salary on a fortnightly basis.
19. This action on the part of the Leader amounts to "double dipping". In that he used a total of K85, 276.00 from the DSIP and DSG funds held in the North-Fly District Treasury Operating account to pay for rentals whilst he was in receipt of electoral allowance of K38, 623.00.
20. I find that the leader intentionally applied money forming part of a fund under the control of Papua New Guinea to a purpose to which it cannot be lawfully be applied.
21. I also find the Leader has failed to carry out the obligations imposed upon him by Section 27(1) of the Constitution in that he has conducted himself in such a way in his public or official life in demeaning the office and allowing his public and official integrity to be called into question.
22. Furthermore, I find that the Leader has failed to carry out his obligations imposed upon him by Section 27(2) of the Constitution by using his office for personal gain when he used K85, 276.00 which was Government funds to pay for the rental of his electoral office when he was receiving his electoral allowance on a fortnightly basis through his salary between 2008 and 2010.
23. The next set of allegation relates to rentals for accommodation for the Leader and his family in Port Moresby.
CATEGORY 2
MISAPPLICATION OF K134, 966.62 FROM THE NORTH-FLY DISTRICT SERVICES IMPROVEMENT PROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSG) HELD IN THE NORTH-FLY DISTRICT TREASURY OPERATING ACCOUNT FOR PAYMENT OF RENTALS FOR ACCOMMODATION IN PORT MORESBY
ALLEGATION 3:
THAT between 2008 and 2010 the Leader intentionally applied a sum of K134, 966.62 forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful;
IN THAT whilst receiving housing allowance of K1, 800.00 in his fortnightly salary, the Leader allowed the use of K134,966.62 from the District Services Improvement Program (DSIP) and the District Support Grant (DSG) held in the North Fly District Operating Account for rental payments for accommodation for himself and his family in Port Moresby as outlined below:-
For the years 2008, 2009 and 2010 the Leader was being paid housing allowances equivalent to that of a Governor when he received in:
a) 2008, a sum of K46, 800.00;
b) 2009, a sum of K62, 600.00 and in
c) 2010, a sum of K47, 814.00 (up to 22 September 2010)
THEREBY being guilty of misconduct in office under Section 13(a) of the Organic Law on the Duties and Responsibilities of Leadership.
ALLEGATION 4:
THAT between 2008 and 2010 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 association with other persons in such a way that he:
a) demeaned his office as member of the Parliament for the North-Fly Open and member of the Western Provincial Assembly; and
b) allowed his official integrity and his personal integrity to be called into question;
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
IN THAT whilst receiving housing allowance of K1, 800.00 in his fortnightly salary, the Leader allowed the used of K134, 966.62 from the
District Services Improvement Program (DSIP) and the District Support Grant (DSG) held in the North-Fly District Operating Account
for rental payments for accommodation for himself and his family in Port Moresby
THEREBY being guilty of misconduct in office under Section 27(5)(b) of the Constitution.
24. The same arguments under the first Category are advanced here. That the Leader had no involvement with the rental payments and the requisitions raised for the payments were signed by persons other than the Leader.
25. Further that the District Administrator Mr. Dmonai arranged for the Boroko accommodation and was the one who was in receipt of all the rental invoices and signed the requisitions and approved the payments. The Leader had no involvement in all these therefore the tribunal could not be satisfied that the Leader intentionally applied sums of money from the DSIP and DSG funds for the accommodation rentals when the Leader did not receive the invoices.
26. Jack Naiyep's evidence is that he is the owner of the property that the Leader initially rented at Tokarara and later moved to yet another of his property at Boroko with his family after they fell ill and the Leader contracted typhoid. They then entered into a lease agreement between himself and the North-Fly District Administration which agreement was signed by him and the Leader.
27. The Leader disputes the ownership of the property at Tokarara to be owned by somebody else. He also denies signing the Lease Agreement for the accommodation at Boroko.
28. There is no dispute that the Leader was not paying his rental from the housing allowance he was receiving fortnightly. However he denies any knowledge of the rentals being paid from the DSIP and DSG funds and that he did not know how the rentals were being paid.
29. Jack Naiyep said he knows the Leader personally as he was a resident of Kiunga sometime back. So he rented to the Leader the house at Tokarara and later at Boroko when the Leader came to visit him in his office with a medical report from the doctor pertaining to his health condition. He said why he would lie against the Leader whom he knows well and the Lease agreement was signed between the two of them.
30. Whilst it is noted that the Unit number on the agreement is wrong or is a mistake, there is no dispute that the Leader was living in an accommodation owned by Jack Naiyep at Boroko. I perceive the mistake as a typographical one and was corrected by Jack Naiyep in his oral evidence.
31. The Leader was living in a rented property at Boroko, he was not paying rentals from his housing allowance that he was receiving in his regular salary and for him to say he did not know where the money was coming from to pay the rentals is incredible. The property he was renting is a real estate rental property and there must be a lease agreement in place. Rentals must be paid to continue to occupy the property because non payments of rentals have consequential effects.
32. The District Administrator is the executive officer of the Joint District Planning &Budget Priority Committee (JDP&BPC) of which the Leader is the chairman. As head of the public service in the district he has a duty to serve the people and there is no question that what he did in finding an alternative accommodation for the Leader as the political head of the District and facilitating the requisitions for payments was within his duties and responsibilities as a financial delegate.
33. Evidence from Richard Pagen is that elected Leaders of Parliament go through an orientation program at the beginning of each election year. Ombudsman Commission is part of that program and it runs a Leadership Summit for the leaders. The Leader is aware of the SRC Determinations and familiar with the allowances under the Determinations.
34. I find the Leader knowingly was receiving the housing allowance and whilst benefitting from it was well aware of the rentals being paid by the District Administration from funds held in the North-Fly District Operating Account under the DSIP and DSG funds. This also amounts to "double dipping" by the Leader.
35. The allegations 5 and 6 are as follows:-
CATEGORY 3
MISAPPLICATION OF K18,200.00 FROM THE NORTH-FLY DISTRICT SERVICES IMPROVEMENT PROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSG)
HELD IN THE NORTH-FLY DISTRICT TREASURY OPERATING ACCOUNT TO PAY OFF A PERSONAL DEBT
ALLEGATION 5:
THAT between 2008 and 2010 the Leader intentionally applied money forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawful;
IN THAT the Leader misapplied a total of K18, 200.00 from the District Services Improvement Program (DSIP) funds and the District Support Grant (DSG) to service a personal debt incurred during the 2007 National Elections by hiring a motor vehicle from a company called Towi Smash Repairs and outlined as follows:-
THEREBY being guilty of misconduct in office under Section 13(a) of the Organic Law on the Duties and Responsibilities of Leadership.
ALLEGATION 6:
THAT between 2008 to 2009 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 association with other persons in such a way that he:
a) demeaned his office as member of the Parliament for the North-Fly Open and member of the Western Provincial Assembly; and
b) allowed his official integrity and his personal integrity to be called into question;
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
IN THAT the Leader misapplied a total of K18,000.00 from the DSIP funds and DSG to service his outstanding 2007 National Election debt which came about as a result of hiring a motor vehicle from a company called Towi Smash Repairs during the 2007 National elections which are outlined as follows:-
THEREBY being guilty of misconduct in office under Section 27(5) (b) of the Constitution.
36. This allegation relates to an amount of K18, 200.00 for the hire of a bus from Towi Smash Repairs alleged to have been used by the Leader during the 2007 National Elections. It is alleged that this commitment was made prior to the Leader being elected into Parliament and as such was a personal debt that he should have settled and not from Government funds held in the North-Fly District Operating Account.
37. The Leader denies any engagement with Towi Smash Repairs at all and is not aware of any such hire of a vehicle. The Leader called Torum Mange who was a partner of Towi Smash Repairs at the time who gave evidence that he was in court to clear his name. Further that he is not aware of such claims being submitted and that Towi Smash Repairs did not hire a vehicle out to the Leader.
38. The evidence from the Mr Dmonai, District Administrator is that he received a letter dated 9 February 2009 from Towi Smash Repairs and an invoice to settle outstanding bills. The District Administrator being aware of the hire by the Leader writes on the letter and signs it. (P.102, 103 SOR) It says-
"Mr Boka Kondra used this bus during the election period in 2007. The bus was not used by North-Fly Administration. He used the bus for his election campaign and counting period. This is his own commitment during the period". (Signed by Ronald Dmonai).
39. In considering all that is before the tribunal and respective counsel's submission I am more swayed towards the evidence of counsel assisting the tribunal and accept their witness version as being credible. Mr Dmonai said he was under pressure from the service provider as well as from the office of the Open Member to settle. When asked in re-examination why he made the payments (hire of bus) his answer was "my wife and children are important. If I did not sign I will get fired as I was suspended twice."
40. Counsel assisting the tribunal invited the tribunal to consider the demeanor of the witnesses and especially the evidence of Torum Mange. It was submitted that the letter (P. 102 SOR) is by Torum Mange and he signed it. He denied writing that letter and the signature. I wish to quote something on the letter I find interesting and I find that this witness is unreliable. It states:-
"I used to operate a Panel Repair business in Tabubil at Min Street but left and now based in Port Moresby. My bus is still in Tabubil with relatives.."
41. The process is that the invoice is provided by the service provider and the clerks raise the Requisition for Expenditure and
the General Expense forms (FF3 & FF4). All these documents are forwarded to the financial delegate, in this case Ronald Dmonai
who approves the vouchers which is forwarded to the District Treasury for printing of the cheques. The debt for the hire of the bus
by the Leader followed the same process and was settled from the funds held in the District Treasury Operating Account.
42. I find the Leader to have breached S.27 (1) of the Constitution in failing to carry out the obligations imposed upon him by conducting himself in his public life and in his association with other
persons in such a way that he demeaned his office as Member of Parliament for North-Fly Open and further allowed his official integrity
to be called into question.
43. I also find the Leader failed to carry out the obligations imposed by S.27(2) of the Constitution by using his office for his personal gain when he misapplied K18,200.00 from the DSIP and DSG funds to settle a personal debt.
44. Apart from the allegations contained in this Reference which has been discussed above, I am gravely concerned about the huge amounts
of monies drawn from the District Operating Account. The invoices submitted for services rendered have been inflated in the cheques
drawn. I am of the opinion that persons within the public service, certain staff in the Leader's electoral office and some service
providers have knowledge of these and have conspired in stealing from public funds and should be investigated and criminally charged
for misappropriation. Whilst the Government Policy on Public Private Partnership is good and meant to promote service delivery to
the people, the private component is being used also as a medium for the wrong reasons ie. diverting funds. (P.124, 136, 304, 319-
322, 355)
Duplicity and Ambiguity
45. It will be amiss for me not to discuss the issue of duplicity and ambiguity which has been raised and submissions made by counsels. Counsel for the Leader argued that S.27 (1) (a) (b) contains two offences. It is fundamental and a matter of natural justice that a person charged should know precisely what the charge is and the charge should unambiguously set out all the elements of the breach including precise acts or omissions. He referred to the case of Johnson V Miller [1937] HCA 77; (1937) 59 CLR 467; Byrne V Baker [1964] VicRp 57; [1964] VR 443; Boral Gas (NSW) Pty Ltd V Magill (1995) 37 NSWLR 150. It was argued that the charge is bad in law and that it be dismissed.
46. Public Prosecutor submitted that there is no duplicity in the Reference. He invited the tribunal to refer to the style of drafting of the reference in Nali, Lelang and compare with that of Temu's case and the reasons given by the tribunal. It was argued that this reference is simple and follows the style suggested in Temu's case.
47. He referred to the case of Re Sigulogo [1988-89] PNGLR 384. The allegations were framed under S.5 and 11 of the OLDRL and S.27 of the Constitution for the same conduct and for which he was convicted. The tribunal said:-
"The Public Prosecutor, in his zeal, has proffered four charges against Mr Sigulogo arising out of this one letter. The charges overlap in that they are very similar in content".
48. In the Application by Nilkare [1997] PNGLR 472 at 496 Kapi DCJ said:-
"Section 27(2) deals with a particular conduct, namely use of office for personal gain and it is to be read together with subsection (1)...I have already stated that where a leader is convicted of an offence in respect of his office or position in relation to the performance of his functions that is misconduct..."
49. The same issues have been raised in other tribunals and the views differ. The arguments advanced by counsels are valid legal issues given the differing views and I believe tribunals will continue the trend until such time this issue of duplicity in the drafting of the reference under S.27 (1) (2) of the Constitution is determined by the Supreme Court.
50. In this tribunal, I am satisfied that the Leader understood the allegations at the outset in order to have taken the plea and denied all the six (6) allegations. He is an educated person, intelligent and a teacher by profession. I accept the submission by counsel assisting the tribunal in that there is no duplicity in the framing of the allegations and are unambiguous. They are overlapping.
51. In conclusion, Leadership Code and the Leadership Tribunal is unique only to PNG. The drafting of the allegation or charge in a reference is not the same as an indictment in a criminal case. It requires special skills to draft and in ensuring the elements of the charge is captured. In essence, it must be understood in order for a plea to be entered. In this case, I am of the view that the Leader understood the allegations to have taken the plea.
SUMMARY OF FINDINGS
ALLEGATION 1- GUILTY (S.13(a) OLDRL)
ALLEGATION 2- GUILTY (S.27(1) Constitution)
ALLEGATION 3- GUILTY (S.13(a) OLDRL)
ALLEGATION 4- GUILTY (S.27(1) Constitution)
ALLEGATION 5- GUILTY (S.13(a) OLDRL)
ALLEGATION 6- GUILTY (S.27(2) Constitution)
-------------------________________________________________________________
The Public Prosecutor: Lawyer Assisting the Tribunal
Young & Williams Lawyers: Lawyer for the Leader
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