State v Yabara [1984] PGNC 9; N451(M) (19 January 1984)

N451(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

- AGAINST -

ROBERT KAKI YABARA

Waigani NCD: Kidu CJ
18-19 January 1984

JUDGMENT

KIDU CJ: The indictment presented against Mr Yabara contains 9 charges and they are as follows:

1. That he between 1st of May 1983 at Port Moresby by falsely pretending that he was living with relatives during a Parliamentary Sitting obtained from the State a sum of K224 with intent thereby then to defraud;
   
2. That he on the 16th day of May 1983 at Port Moresby did attempt to obtain from the State K60 by falsely pretending that he had spent the money (K60) for food and accommodation at the Kundiawa Hotel on the 28th of April 1983 with intent thereby then to defraud;
   
3. That he on the 16th day of May 1983 at Port Moresby did attempt to obtain from the State the sum of K65 by falsely pretending that he had spent the sum of K65 for food and accommodation at the Papua Hotel Port Moresby on the 30th of April 1983 with intent thereby then to defraud;
   
4. That he on the 16th day of May 1983 at Port Moresby did attempt to obtain from the State the sum of K70 by falsely pretending that he had spent the sum of K70 for food and accommodation at the Bird of Paradise Hotel, Goroka on the 29th April 1983 with intent thereby then to defraud;
   
5. That he on the 5th day of May 1983 at Port Moresby by falsely pretending that he had spent a sum of money, namely K59 for food and accommodation at the Bird of Paradise Hotel, Goroka on the 28th April 1983 obtained from the State of Papua New Guinea the sum of K59 with intent thereby then to defraud;
   
6. That he on the 16th day of May 1983 at Port Moresby being permitted to make a declaration made a declaration before one Graeme Witchurch a Commissioner for Oath which was false in a material particular namely that it was thereby declared that the said Robert Kaki Yabara of Chuave was entitled to K60 which he had spent for food and accommodation at the Kundiawa Hotel, Chimbu on the 28th April 1983 whereas in truth the said Robert Kaki Yabara then well knew;
   
7. That he on the 16th day of May 1983 at Port Moresby being permitted to make a declaration made a declaration before one Graeme Witchurch a Commissioner for Oath which was false in a material particular namely that it was thereby declared that the said Robert Kaki Yabara of Chuave was entitled to K70 which he had spent for food and accommodation at the Bird of Paradise Hotel, Goroka on the 29th April 1983 whereas in truth the said Robert Kaki Yabara did not stay at the Bird of Paradise Hotel as the said Robert Kaki Yabara then well knew;
   
8. That he on the 16th day of May 1983 in Port Moresby being permitted to make a declaration made a declaration before one Graeme Witchurch a Commissioner for Oath which was false in a material particular namely that it was thereby declared that the said Robert Kaki Yabara of Chuave was entitled to K65 which he had spent for food and accommodation at the Papua Hotel at Port Moresby on the 30th April 1983 as he hadn't been provided with an ILPOC (Integrated Local Purchase Order) form whereas in truth the said Robert Kaki Yabara did have an ILPOC which covered his stay at the Papua Hotel as the said Robert Kaki Yabara then well knew;
   
9. That he on the 5th day of May 1983 in Port Moresby being permitted to make a declaration made a declaration before one Graeme Witchurch a Commissioner for Oath which is false in a material particular namely that it was thereby declared that the said Robert Kaki Yabara was entitled to the sum of K59 which he had spent for food and accommodation at the Bird of Paradise Hotel, Goroka whereas in truth the said Robert Kaki Yabara did not stay at the Bird of Paradise Hotel as the said Robert Kaki Yabara then well knew.
   

In support of these 9 charges the State called 10 witnesses and tendered, without objections from the defence, 16 exhibits "A" to "P".

The State's case revolves around the two statutory declarations mentioned in the indictment. One of these is dated 16th of May 1983.

There is no contention that the declarations bear the signature of the accused. The accused has, in his statement from the dock, admitted that he signed these statutory declarations before Mr Witchurch. There is also no contention that Mr Graeme Witchurch, Executive Officer to the National Parliament, is also a Commissioner for Oaths. He was appointed in 1971 as a Commissioner for declarations under the Oaths, Affirmations and Statutory Declarations Ordinance 1962. This appointment is included in Government Gazette No. 43 of 23rd December 1971. The Legislation under which Mr Witchurch was appointed was later amended and those who were Justice of the Peace, Commissioners for declarations were to be known henceforth as Commissioners for Oaths. His appointment has never been revoked and at the time he witnessed the two statutory declarations made by Mr Yabara during May last year he was still a Commissioner for Oaths and he is till a Commissioner for Oaths.

The two statutory declarations state:

1. Statutory declaration dated 5th May 1983
   

"I, ROBERT KAKI YABARA, Member for Chuave Open do solemnly and sincerely declare that on the 28/4/83 I used a private vehicle to go to Goroka from Kundiawa to meet my flight to Port Moresby for April/May's Parliament.

The reason I hired the PMV is that I was unable to get a vehicle from the PTB. The amount spent to hire the PMV is K35.

I also claim for the money spent for accommodation and meal for one night at the Bird of Paradise Hotel while awaiting my flight. The amount spent is accommodation K44 and meal K15".

2. The statutory declaration dated 16th May 1983 reads as follows:
   

"I, ROBERT KAKI YABARA, do solemnly and sincerely declare that -

1. That on 28th April, I spent K50 of my personal finance to hire a PMV vehicle from Kundiawa to Goroka.
   
2. I spent one (1) night at Kundiawa Hotel and paid K60 for accommodation and meals inclusive, on the 28th April.
   
3. That on 29th April I spent K70 at Bird of Paradise Hotel for meals and accommodation.
   
4. As I was not provided any ILPOC I spent a night at Papua Hotel spending K65 for food and accommodation, on Saturday, 30th April."
   

The statutory declaration dated 5th of May 1983 was prepared by Mr Kivovi, a Clerk at the National Parliament. He received instructions from Mr Yabara and wrote out the statutory declaration which was then taken by Mr Yabara to Mr Witchurch who witnessed Mr Yabara's signature. This statutory declaration was then taken back to the finance section of the National Parliament and arrangements were made by Mr Kivovi to have Mr Yabara paid the sum of money he claimed in the declaration, namely the sum of K94.

There is no doubt whatsover that Mr Yabara received this money. He did not deny it in his dock statement. He received the money the same day that he made the statutory declaration and before he was given the cheque on that day, he signed a form (exhibit "J") indicating that he had received the cheque No. 12048856 in the amount of K94.

Then 11 days later Mr Yabara prepared a statutory declaration which is dated 16th of May 1983. The first draft of this Declaration was, when taken to Mr Witchurch, not witnessed because Mr Witchurch told Mr Yabara that the declaration was defective. It did not have the dates for the alleged expenditures. Mr Yabara prepared a second one which once again when shown to Mr Witchurch was also defective in that the date of the Papua Hotel expenses not included. Then the third which is now exhibit "K", was prepared and before it was witnessed by Mr Witchurch the accused was warned of the consequences of making false declarations. Mr Yabara said that the declarations were true and Mr Witchurch then had him sign the declaration and then witnessed it himself in the presence of Mr Harry Humphreys, the Member of Parliament for Talasea Open Electorate. Talasea is in the West New Britain Province.

Mr Yabara's story, from the record of interview and from his statement from the dock is a little confusing. He said that he left Kundiawa on the 28th of April 1983 by a hired PMV to Goroka in order to catch plane to Port Moresby for Parliamentary Sittings. Yet he says in the same breath that he spent the night of the 28th of April 1983 at Kundiawa Hotel where he says he spent K60 of his own money for accommodation and meal. He could not have been staying at that Hotel on the same day. He said then he spent the night, in his statutory declaration of 5th of May 1983, of the 28th at the Bird of Paradise Hotel awaiting his flight to Port Moresby and spent the amount of K44 for accommodation and K15 for meals. But in his declaration dated the 16th of May 1983 he said that he spent the night of 29th April at the Bird of Paradise Hotel and spent K70 of his own money for accommodation and meal. So it's a little confusing but there it is, it is all in documentary form and he has sworn that this confusing story is true. He then said he caught the flight - he must have then caught a flight on the 30th of April 1983 to Port Moresby, and he said in his statutory declaration dated the 16th of May 1983 that because he had not been provided with an ILPOC he had to spend one night - that night of Saturday 30th April - at Papua Hotel and spent K65 of his own money for food and accommodation.

It is not true that Mr Yabara stayed at Kundiawa Hotel on the night of 28th of April 1983. Firstly Mrs Burgess who is the house-keeper and at present Assistant Manager of the company which owns the Bird of Paradise Hotel and the Kundiawa Hotel has said that during the whole of April 1983 Mr Yabara never booked into the Kundiawa Hotel. The register for that Hotel was tendered in evidence and it specifically shows that on the 28th of April 1983 the only people who stayed at the Kundiawa Hotel were Mr James Kurumba, A. Pural and a person called R.N. McKenzie. These three people had stayed in that Hotel the night before as well. The second reason why I find that he did not stay at Kundiawa Hotel is that he says in his two statutory declarations that he hired a PMV on the 28th of April and went from Kundiawa to Goroka.

I also find that Mr Yabara did not stay at the Bird of Paradise Hotel. In his statement from the dock he said that he did not stay at the Bird of Paradise Hotel on the 29th of April 1983. He says he stayed at the Salvation Army Hostel. But in his two statutory declarations he has sworn that he stayed at the Bird of Paradise Hotel. It was submitted by Mr Koeget that perhaps Mr Yabara did not understand English very well and therefore made mistakes in his statutory declarations. And I will deal with that point now I do not believe that Mr Yabara was confused nor he finds it difficult to understand English He understands and speaks English. It was obvious during the trial that he did because firstly when I put the 9 charges contained in the indictment to him although he had indicated that he wanted to have a Pidgin interpreter he answered those charges before the interpreter explained them to him. He answered them very well. During the course of the State evidence it was apparent that when English speakers like Chief Inspectors Walker and Maxwell were giving evidence Mr Yabara paid close attention to their evidence and apparently understood what they were talking about. There's also another indication why I do not accept the submission that he does not understand or did not understand English last year. When he was interviewed on the 20th of May 1983 by Chief Inspector Walker and Sub-Inspector Gerari the interview started in English. Chief Inspector Walker asked him if he agreed that the interview be conducted in English and Mr Yabara said yes. He was then cautioned and administered his rights under section 42 of the Constitution in English and he said he understood them. He was asked if he was a Member of Parliament for Chuave in English and he said yes. He was asked to look at the statutory declaration dated the 5th of May 1983 and asked if his signature was in it and he answered "It is not my signature". So my finding is that he understood English last year and he still does this year.

So when he says in his record of interview that he stayed at the Salvation Army Hostel and when he say it in his unsworn statement from the dock that he stayed at Salvation Army on the night of the 29th of April 1983 he was not telling the truth. I find therefore that he was not telling the truth. If he did stay at Salvation Army Hostel then it would have been a simple matter for him when he made these two statutory declarations to specifically do so. The reason why he did so seems to be clear, that he wanted to claim money for staying at the Bird of Paradise Hotel when in fact did not. It is possible that he stayed at the Salvation Army Hostel. I do not know that he did and if he did then he should have said so from the beginning and be honest about the matter.

I find that Mr Yabara arrived in Port Moresby on the 29th of April 1983. I find that he did not spend that night at the Bird of Paradise Hotel in Goroka. Mrs Konia Sioni, travel clerk with the National Parliament, gave evidence and said that on the 29th of April 1983 she gave Mr Yabara an Intigrated Local Purchase Order Claim (ILPOC). This ILPOC is numbered 24032 and marked exhibit "M". This ILPOC was, according to Mr Witchurch and Mrs Sioni, issued to Mr Young on the 1st of October 1982. At the time Mr Young was the Speaker of the National Parliament. However, Mr Young did not use the ILPOC and returned it to Mr Witchurch and on the 29th of April 1983 Mrs Sioni altered the date to 29th of April 1983 and issued it (the ILPOC) to Mr Yabara. Mr Yabara then booked into the Papua Hotel. Mr Neuman, the Manager of Papua Hotel, gave evidence to that effect and his Hotel records of guests, marked exhibit "N" show that Mr Yabara arrived at Papua Hotel on the 29th of April 1983 and was given a room (NO. 2) at the rate of K35 a day. The record also shows that on the 30th of April 1983 Mr Yabara moved into room No. 11, a double room, at the rate of K43 a day. The record also shows, and it was Mr Neuman's oral evidence, that Mr Yabara stayed at Papua Hotel until the morning of the 8th of May 1983 when he booked out, and his final bill for the time he stayed at the Hotel was K502.10, K120.10 of that amount being for meals and beverages. So Mr Yabara did not spend the night of the 29th of April 1983 at the Bird of Paradise Hotel. He was lying when he said that. Also when he said in his statutory declaration that he spent K65 of his own money because he had not been provided with an ILPOC on the 30th of April 1983, he was lying. He also did not spend K60 of his own money at the Papua Hotel on 30/4/83 he had an ILPOC which covered his accommodation.

Members of Parliament under their terms and conditions determined by the Parliamentary Salaries Tribunal are entitled to K28 per day allowance if they stay with relatives or friends whilst the Parliament is in session. If they chose to stay in a Hotel or Hostel then their terms and conditions provide that the Government pay for accommodation and they are paid K15 per day out of which they are supposed to pay for their meals.

Mr Yabara has been a Member of the National Parliament since 1977. This evidence was given by Mr Witchurch and the accused himself confirmed that in his unsworn statement from the dock. Therefore he would know what he is entitled to and what he is not entitled to. There could not be any mistake about his knowledge or familiarity with the terms and conditions applicable to Members of the National Parliament. Knowing this he chose to tell Mr Vagi Toua, a finance clerk with the National Parliament, that he had not been issued with an ILPOC and that he was staying with wantoks and claimed K28 a day allowance. In fact this money was paid to him for the period 2nd of May 1983 to the 9th of May 1983 at the rate of K28 a day. Perhaps he had been staying with wantoks after he had moved out on the morning of the 8th of May 1983, from the Papua Hotel. However he had not stayed with relatives from the 2nd of May to the 7th of May he was not telling the truth. I find that he lied to Mr Toua about the matter. He was therefore paid moneys that he knew very well he was not entitled to.

One of the things that intrigues me about this case is the fact that Mr Yabara claimed money for supposedly staying at the Bird of Paradise Hotel on 28.4.83 when he said he travelled from Kundiawa to Goroka on the same day. He made two claims for the hire of a PMV. In the statutory declaration of 5th May 1983 he declared that he paid K35 for hiring the PMV. He was paid that money. Then 11 days later on the 16th of May 1983 when he swore the second statutory declaration he claimed for the hire of the same vehicle but this time the amount is stated as K50. I cannot see how such a mistake can he made. I'm satisfied beyond any doubt that Mr Yabara knew quite well that he had claimed K35 for hiring a vehicle from Kundiawa to Goroka on the 28th of April 1983 and that he had been paid for it and he intentionally claimed this expense again in his second statutory declaration increasing the amount in process. Of course it's fortunate that he was found out. Mr Witchurch was suspicious and he was not paid any money he was not entitled to for transport from Kundiawa to Goroka. He claimed quite specifically once again in the two statutory declarations for staying at the Bird of Paradise Hotel. In the first declaration he said his stay was on the 28th of April 1983 and in the second he said his stay was on the 29th of April 1983 claiming in the first declaration a sum of K59 and in the second a sum of K70. I hold that he had intentionally done this in order to get money he knew very well he was not entitled to. He had not stayed at the Bird of Paradise Hotel as I have already found. So these are factors which add to the finding that Mr Yabara had intentionally made false declarations on the 5th of May 1983 and the 16th of May 1983 and the finding that he intended to defraud the State.

From all of the evidence there are absolutely no doubts in my mind that all the charges in the indictment have been proved beyond reasonable doubt by the State and I find the accused guilty of all the 9 charges contained in the indictment.

Lawyer for the State: L. Gavara-Nanu, Public Prosecutor
Counsel: Mr Boyce & Mr Kuvi
Lawyer for the Accused: N. Kirriwom, Public Solicitor
Counsel: Mr Koeget & Mr Kipalan