State v Puraso (No 1) [2022] PGNC 136; N9593 (8 April 2022)

N9593

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) NO. 107 OF 2021

THE STATE

V

REX PURASO

(No 1)
Goroka: Miviri J
2022: 06^th April

CRIMINAL LAW – Section 87 (1) (a) CCA – Official Corruption – Trial – Public Servant Elementary Coordinator – Vehicle in Possession of Accused – Whether or not Accused Corruptly obtained the Vehicle – Maintenance of Vehicle by Accused – Evidence Vehicle Acquired Unlawfully – No Evidence of Tender – Vehicle State Property – No Transfer of Registration – Conversion of Vehicle – Guilty of Official Corruption – Bail Extended.

Cases Cited:

John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Lawi v The State [1987] PNGLR 183
Mako v State [2006] PGSC 29; SC889
Mollo, The State v [1988-89] PNGLR 49
State v Duncan [2015] PGNC 279; N5010
State v Gigina [2018] PGNC 268; N7358
Waranaka v Dusava [2009] PGSC 11; SC980

Counsel:

L. Toidalema, for the State
G. Apa, for Defendant

VERDICT

08^th April, 2022

1. MIVIRI, J: This is the verdict after trial of the Accused whilst a public Servant employed by the Eastern Highlands Education Department who corruptly obtained a vehicle the property of the Eastern Highlands Provincial Government.
   
2. He was charged pursuant to section 87 (1) (a) of the Criminal Code of Official corruption. Relevantly that section reads, “(1) A person who

(a) being-

(i) Employed in the Public Service, or the holder of any public office; and
(ii) Charged with the performance of any duty by virtue of employment or office, (not being a duty touching the administration of justice),

Corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or
(b) corruptly gives, confers, or procures, or promises or offers to give or
confer, or to procure or attempt to procure, to, on or for any person,

any property or benefit on account of any such act or omission on the

part of a person in the Public Service or holding a public office,

is guilty of a crime.

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

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

3. The elements of the charge from this section are that:
   

(a) a person

(b) being employed in the Public Service

(c) charged with a duty by virtue of his employment or office

(d) corruptly asks, receives, or obtains any property or benefit for himself

(e) on account of anything done or to be done in the discharge of his duties of his office.

4. The State is required to establish by evidence all these elements required of the charge beyond all reasonable doubt.
   
5. The relevant facts that give rise to the charge are that, between the 1^st January 2017 and 04^th August 2020 in Goroka, Accused was an Elementary Schools Coordinator with the Eastern Highlands Education Department. As part of his duties, he had in his custody a blue Toyota Land cruiser ten-seater registered number PAD 766. A standoff ensued over the Provincial administrators position between one Solomon Tato, Samson Akunai and then Madam Julie Soso causing interruption to the administration. As a result, most of the Provincial Government property went missing through the hands of those in authority. The matter stabilized with the declaration of a new Governor in Honourable Peter Numu, which saw investigations begun to recoup missing property of the State.
   
6. And in the course, it was discovered that a blue Toyota Land Cruiser registered number PAD 766 was missing without any trace in 2017 whilst in the custody of the accused. As a result of that investigations, it was revealed that the original Eastern Highlands red paint to mark the bumper as government vehicle was painted over by black paint. The window glasses were tinted and original registration number PAD 766 was removed and replaced with a private number plate LBN 494. And the whole vehicle was repainted dark blue in colour.
   
7. Complaint was registered with Police by the Director Transport and Civil Works for the Provincial Government. The defendant was spotted in the vehicle on the junction between Mt Kiss and road to North Goroka. He was stopped by Police and directed to the Police Station. Where he was interviewed in response, he told police that he had purchased it through close tender. He purchased it with K 5000.00 which he paid cash to the Director Corporate Services, Mr Ben Ulopo. But the vehicle was not registered under his name, or that a transfer certificate was issued in his name confirming transfer from the Provincial Government to him. And it was not put on tender. He had because of the unstable administration without following tender processes and procedure through his position as the Provincial Elementary Coordinator corruptly obtained the vehicle Toyota Landcruiser blue in colour registration number PAD 766 the property of the Eastern Highlands Provincial Government and the State.
   
8. He denied and entered a not guilty plea to the charge upon arraignment. In its endeavour to prove its case the State tendered by consent the record of interview of the accused dated the 12^th October 2020 conducted originally in pidgin, exhibit P1 and the English translation Exhibit P1(a). It established that he was employed as Provincial Elementary Coordinator. But denied that he was allocated the subject vehicle PAD 766. But he would ask use of it from the Director who was allocated it. He acknowledged that it was the property of the Eastern Highlands Provincial Government but now it was his, question 18 of the record of interview.
   
9. And that it was retrieved from him and at the Police Station Goroka. He explained that he bought it in the tender for K5000.00 in a special arrangement, a closed tender. It was not the subject of an open tender. Because there were three other vehicles of the Education Department that were put on close tender. And that the chairman of the tender’s board was one Ben Ulopo to whom he gave the K5000.00 in 2017 for the vehicle. But was not given a receipt by Ben Ulopo for it. And that Ben Ulopo had the power as did accord him in the disposal of all used vehicles of the Provincial Government.
   
10. But he did not register the vehicle, nor did he make any attempts to register it as his own up to the date of the record of interview 12^th October 2020. Even though it was obtained as his own through tender it was not registered in his name from 2017 up to the 12^th October 2020. Which was three years awaiting registration even though it was his by the exchange of K5000.00. His explanation in the record of interview was that he did not have enough money to do. At question 39 he agrees that the Provincial Government did not transfer the ownership of the vehicle to him. And does not explain why the Provincial Government took that long to transfer the ownership to him. And admits that a combined operation of the Police and the Provincial Government went to his house at Kamaliki and took possession of the PAD 766 Toyota Landcruiser from there. He explained that it had a mechanical problem and that is why it was parked there. It was retrieved and reparked at the Yanepa Carpark.
    
11. At question 45, he says he left it at the back of his house at Kamaliki before it went through the tender. And that the transport office gave it back to him from where it was impounded and parked in the Yanepa carpark. He does not know the name of the transport officer who gave back the vehicle to him. Asked whether he intended to steal the vehicle therefore removed the government plate and put his private plate number LBN 494. He answered at question 49, that the vehicle was his own, therefore he put the private number plate. Asked further that he intended to steal it, therefore spray-painted black colour over the Provincial Government red paint. He responded that the vehicle had some dents and so he sprayed and painted black over it. Asked at question 51 and 52 that he obtained the vehicle through illegal means and therefore found it difficult to register it under his name, he answered that it took time to get the money to register it.
    
12. Asked whether he had the tender notice he said it was at home. He signed and acknowledged the record of interview. There was no impropriety on the document. Its veracity was intact in the evidence it formulated as part of the State case.
    
13. The next evidence by consent was Exhibit P2 (38), was the photograph of the front of the subject Ten-Seater Toyota Land cruiser taken at the police Station. The vehicle viewed from that angle was quite decent and could go a long way in the service. It did not bear out the registration number PAD 766 of the Provincial Government. And Exhibit P2 (39) side view from the driver’s side showed a well-kept vehicle that did not bear that it was destined for a board of survey and eventually disposal in tender. It still had a long way to go in service of the State viewed from the back Exhibit P2 (40) with the private plate number LBN 494. And that was evident by Exhibit P2 (41) the registration certificate that was numbered EHPRG-31480 with the PNG plate number PAD 766 certifying it as Department of Education P. O. Box 466 Waigani 131 NCD. Bearing the engine number 1Hz-0562945 Model Land cruiser chassis number JTERB71J2000416 Toyota Light Bus/Van Blue in colour, registered as of the 16^th Day of August 2009, expiry date of 16^th August 2010. At the bottom there was notify at once if vehicle was disposed off.
    
14. Exhibit P2 (42) was Vehicle disposal report dated 22^nd June 2018 from the Acting PSTB Board Secretary to the Acting Provincial Administrator. It was vehicle disposal report under hand of one Ethel Naged, who also gave evidence on oath. She stated that there were twenty-one vehicles listed for disposal. There was tender for nineteen made out of which two vehicles did not attract any interest. Out of the nineteen (19) four (4) were paid for.
    
15. Exhibit P2 (44) was the list of vehicles that were disposed of in the tender. Exhibit P2 (45) was the same including the reserve price of the vehicles and to whom tender was awarded to. Exhibit P2 (46) was similar and continuation page of that document. Including Exhibit P2 (47), P2 (48), P2 (49), P2 (50), P2 (51). All documents relevantly did not show that PAD 766 was one of the vehicles disposed off by tender. Neither did it show that the Accused was awarded by close tender PAD 766 Toyota Land cruiser blue. Exhibit P2 (52) detailed out the tender process of the Eastern Highlands Provincial Administration. It was clear evidence of an accountable process that in bold stressed accountability and transparency in the disposal of the vehicles. They were State assets that needed to be properly and lawfully disposed of. Records were to be kept showing balancing in accounts in what was disposed off. There was proper acquittal at the end of the day. Moneys were properly accounted in appropriate government State accounts. And that is clear by step 11 borne out in Exhibit P2 (53), “there are no such things as close tender of state properties, the closed tender is awarded on emergency case only.”
    
16. Exhibit P2 (54) was letter dated the 04^th August 2020 under hand of Peter Gare Acting Director of the Eastern Highlands Provincial Administration Transport and Works Division. The subject was Missing Vehicle Toyota Land Cruiser 10-seater registered number PAD 766 now changed to LBN 494. His letter confirms the subject vehicle as of the Eastern Highlands Provincial Administration allocated to the Education Division. That the vehicle went missing during the course of the impasse involving the former Governor Julie Soso, Samson Akunaii, and former provincial administrator Solomon Tato in 2016.
    
17. He specifically says the subject vehicle was stolen and missing. And that he believed that it was driven around Goroka in number plate LBN 494. And that Police assistance was needed to get it back. That the driver should be arrested and charged and all necessary measures taken to recoup it as it was state asset.
    
18. In addition to the tender the State called this witness on oath. He confirmed in all material the letter set out above. He had no knowledge of its whereabouts and so instructed police to recoup it back to the State the Provincial Government. It was not the subject of tender nor was it awarded to the accused as a result of tender in any way. PAD 766 was registered to the Eastern Highlands Provincial Education Division and not anyone else. It had not been disposed in tender.
    
19. The list of which presented by the next witness called on oath Semba Hagore Transport Manager of the Eastern Highlands Provincial Administration did not evidence. He had served 29 years in government there as a public servant. PAD 766 Toyota land cruiser ten-seater blue in colour from the division of Education was not the subject of tender in 2017 or earlier. It was bought by the Eastern Highlands Provincial Government allocated to the Education Division. And used by the Accused Rex Puraso who was in the dock. In the list of vehicles for tender PAD 766 Toyota Landcruiser 10-seater blue from the Education Division was not included for tender. His evidence rode hand in hand with Exhibit P2 (47), P2 (48), P2 (49), P2 (50), P2 (51). There were simply no official Eastern Highlands Provincial Government records to show that PAD 766 was one of the vehicles the subject of tender and disposed off to the Accused for the sum of K 5000.00. The chassis and engine number from the certificate of registration Exhibit P2 (41) corroborated his evidence. It was still in the registration of the Eastern Highlands Education Division and not changed from there to LBN 494.
    
20. The next witness on oath author of Exhibit P2 Acting PSTB Board Secretary Ethel Naged confirmed in all material particulars Exhibit P2 (42) and firmed that there was no such thing as closed tender. The only instance was in an emergency were closed tender was called for example in a landslide. Here there was no such case, nor was she aware and could point to records bearing closed tender awarded to the accused for the Toyota Land cruiser PAD 766 blue 10-seater originally from the Education Division.
    
21. The Accused in defence gave evidence on oath deviating from his record of interview in that he reported that PAD 766 was stolen to the Police when he was asked by his Education Director to use it when his vehicle went into service. It did not come back to him after so he laid an official complaint to the police. That PAD 766 was missing and stolen. He produced no evidence of the complaint that he made to police on it.
    
22. In cross examination he affirmed that it was his intention to get PAD 766 and he did that by paying K5000.00 in cash to one Ben Ulopo director corporate services. Because the vehicle was written off. And further changing the number plate from PAD 766 to LBN 494. There were many intent on getting that vehicle so he did what he did to acquire it as his own. Yet the vehicle was not registered in his name nor was it transferred to his name as owner of it. And this was despite he paying so that the windows were tinted, and there was painting over the red on the bumper with a black paint. The former was evidence that it was an Eastern Highlands Provincial Government vehicle and painting over it with black would see it as a private vehicle. And He admitted that he instructed the workshop to paint as they did because he said there were dents on it.
    
23. In my view what is clear and settled fact from all the evidence for and against, is that he was a public servant. And the subject vehicle Toyota Landcruiser ten-seater blue in colour was impounded off him by police. Because it was reported as missing by the Acting Director of Transport and Civil works Peter Gare. Its registration was with the Education Department as PAD 766. He did not register it despite the fact that it was in his possession. And he was elementary coordinator employed by the Eastern Highlands Provincial administration in the Education Division where the vehicle was discharged with duties there. And the windows of the vehicle were now tinted. He was responsible for it including painting over the red with a black paint. And that of the removal of the original plate number PAD 766 with LBN 494. He expressed clear intent to own it as his own.
    
24. The dispute was whether or not he had purchased it by close tender and therefore entitling him to it. And thereby he not committing any offence as alleged and charged. Which required whether or not the Toyota Landcruiser 10-seater blue registered number PAD 766 was ever the subject of tender by the Eastern Highlands Provincial Administration.
    
25. In his evidence the accused has not produced any evidence that PAD 766 Toyota Land cruiser blue in colour was the subject of tender. He is asking to accept that it was by close tender and he paid K 5000.00 for it. But he has produced no government records continuing from exhibit P2 (41) that certificate depicting Department of Education as the registered owner was not changed. The custodian Semba Hagore Transport Manager of the Eastern Highlands Provincial Administration denies that the PAD 766 Toyota Land cruiser blue was never the subject of tender at all. He produced documents which have become exhibits set out above P2 (47), P2 (48), P2 (49), P2 (50), P2 (51) showing evidently that PAD 766 was never ever a vehicle tendered as he contends. So, if K 5000. 00 was paid as contended by the accused, it is not the subject of tender. There is no evidence that it was part of tender. And there is no receipt to evidence if indeed K 5000. 00 was paid as contended. The tender documents do not evidence any payment of that amount for PAD 766 at all.
    
26. This evidence of Semba Hagore Transport Manager of the Eastern Highlands Provincial Administration is consistent with that of Peter Gare Acting Director for transport and civil works of the Eastern Highlands Provincial Administration. He wrote the letter Exhibit P2 (54) dated the 04^th August 2020 complaining to the Police against the actions of the Accused that has led to the arrest and institution of the matter as it is now before the Court. Which is in similar terms with the witness Acting PSTB Board Secretary Ethel Naged who confirms in all material particulars that there never was a tender in respect of the vehicle PAD 766 Toyota Land Cruiser blue ten-seater of the Division of Education in the possession of the Accused.
    
27. The Accused on the other hand in his own record of interview is not on par, nor consistent with his evidence on oath. On oath His contention that he reported that it was missing to the Police is not backed up by evidence of that fact. He does not have correspondence of that fact to the Police. There is nothing officially on the record that he has produced of his reporting that fact, after it went missing upon the Director taking the vehicle from him, because the latter’s vehicle was in service. This aspect of reporting to police on the vehicle missing is not in his record of interview to Police. To further his cause there is no independent confirmation of that fact from the police records that he indeed reported the vehicle as missing. He has a very material inconsistency in his evidence in this respect because it goes to show whether he is a witness telling the truth.
    
28. Further he has not produced any documents from the Division of Education that the subject vehicle was indeed approved for tender with a report by the Head of his division. There is a board of survey report in respect of the subject vehicle that it was no longer to be used because it was now no longer serviceable to carry out the duties of the division in particular, his position of Elementary School Coordinator. That is also not the evidence of the State witness who pose the contrary that the subject vehicle was serviceable still in the education division in particular the office that he held of Elementary School coordinator. It was never on the tender list for 2017 but it is the accused evidence that he paid K 5000.00 to one Ben Ulopo director corporate services for it as it was in close tender, not open tender.
    
29. It means his evidence is incredible and inconsistent. There is no ring of truth in it independently verified so as to set that his is the version that must be believed by the Court. Because assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). That is not the case against witnesses of the State but is the case for the defence as I have set out above. His evidence suffers that fate. Accordingly, I reject his evidence.
    
30. Looking at another angle his evidence of reporting because the vehicle was missing after it was left with his Acting Director Education Mr Robert Kokoa is a recently made out story. It was not there when he initially spoke to the police in the record of interview. It was material evidence and if indeed it was there, he would have immediately promptly told police of that fact in the record of interview. Because he was innocent of the allegation, that the subject vehicle had gone missing whilst in the care control of his acting director. And he had made that report to police. What is deduced from this conduct is that he has realized guilt his own fate in the matter. And this evidence is made out to avoid that guilt, knowing fully well that fact. It is conscious lies told out of conscious sense of guilt. And would corroborate the version of evidence of the State: John Jaminan v The State [1983] PNGLR 318.
    
31. Has the State discharged the burden of proof by the evidence set out above that the Accused is guilty of official corruption pursuant to section 87 (1) (a) of the Criminal Code? Particularly bearing that the vehicle has come into his possession on account of his duties to that office as elementary coordinator. He has used that position not in the sense observed in State v Gigina [2018] PGNC 268; N7358 (13 July 2018), where Accused was a Civilian Clerk in the Traffic Directorate of the Police Department. Complainant came to get an accident report relating to an accident. Accused told him, "igat save face stap kisim sampela moni kam na mipela bai wokim report bilong yu," We are friends give us some money and we will do a report for you. K400 was given by Complainant but report was not made. That in my view is classical case envisaged by this section also observed in Mako v State [2006] PGSC 29; SC889 (30 June 2006).
    
32. But to put a close there in the ambit of the section would see public servants escape the net of that section. In my view if contextualized out in the definition of the word corruption in State v Duncan [2015] PGNC 279; N5010 (20 November 2015) would extend it ambit to include the facts here. Because this a case of the dishonest discharge of the duties related to that office. Was it part of the duties of the office of elementary school coordinator that the vehicle leased to him for the duties pertaining to that office be converted as here? Because here is the classical observation of dishonest application to own use of property that is of or relating to that office: Lawi v The State [1987] PNGLR 183 (13 April 1987). It follows in my view corruption involves that fact of being dishonest. That is the evidence here the defendant has corruptly received to himself what is due and of the office. It is of the office not his and rather than use it for the office has turned facts to suit his desires to own that vehicle. That in my view is corruptly receiving what has come as a result of that office to oneself. It is misappropriation but in the sense of the element here would satisfy in my view. And accordingly, I find this element satisfied beyond all reasonable doubt.
    
33. The aggregate is that the State has discharged the burden on the element that he is a person. And that he was a public servant employed as elementary School coordinator. And stemming from the discussion set out above, the next element is satisfied beyond all reasonable doubt. Because the subject vehicle comes as part of the discharge of his duties of that office an elementary School coordinator. As part of that is the possession of the vehicle PAD 766 Toyota land cruiser 10-seater owned by the education Department for use in his official duties called by that office. And which vehicle has gone missing in his possession not in the discharge of the duties of the office but conversion of it to his use. And this is clear from the evidence that he has painted over the red over with black. The former indicating its ownership to the Eastern Highlands Provincial Administration, hence the Education Division. And he has removed PAD 766 official number plate and affixed a private number plate LBN 494. He has also painted over the vehicle and tinted the glasses on the window. He admits in his record of interview that he wants to own the vehicle as his own. That is clearly corruptly using what is due and of the office for his use. It in my view satisfies this element beyond all reasonable doubt.
    
34. And stemming from this discussion the last element is also discharged beyond all reasonable doubt given these facts would amount to discharge of the burden of proof of this element on account of anything done or to be done in the discharge of his duties of his office. The vehicle PAD 766 has come on account of the duties pertaining to that office in the hands of the accused as elementary School coordinator. It is not of the accused personal, and by converting it as he has done in my view falls within the observation of this court Mollo, The State v [1988-89] PNGLR 49. He has corruptly received what is of the office as a result of his duties within that office. The aggregate is that the State has discharged beyond all reasonable doubt on the evidence it has led relating to section 87 (1) (a) of the Criminal Code of Official corruption against the Accused. I find him guilty as charged and convict him accordingly. As a result of the Conviction, I order that his bail moneys are refunded forthwith and he is remanded in custody to await sentence.
    
35. The formal orders of the Court are:
    
    • (i) The accused is found guilty of official corruption pursuant to section 87 (1) (a) of the Criminal Code Act.
    • (ii) The bail moneys of the defendant be refunded forthwith.
    • (iii) The defendant is remanded forthwith to await sentence.

Orders Accordingly.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant