N9397
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 151 OF 2021

STATE

V

FR. JAN CZUBA

Waigani: Wawun-Kuvi, AJ
2021: 6th, 7th,9th, 10th & 15th December
2022: 19th January

CRIMINAL LAW-TRIAL-Abuse of Office, Criminal Code, s 92 (1) and s 92 (2)-whether accused abused the authority of his office as the Secretary for the Department of Higher Education, Research, Science, and Technology-Whether the accused did any arbitrary act-Whether the act was prejudicial to the rights of another? 

The accused was the Secretary of the Department of Higher Education Research, Science and Technology (DHERST). His financial limit as the Departmental Head was K500, 000.00.

The State alleged that between 1 August 2017 and 31 August 2017, the accused breached public service procurement processes by entering into a License and Software Agreement with PCG Academia, for the sum of K1, 319, 423.27. That this exceeded the accused financial threshold and was therefore an abuse of the office in which the accused held.

The State further alleges that between August 2017 and 31 August 2017, the accused breached public service procurement processes by entering into a License and Software Agreement with PCG Academia, for the sum of K1, 652, 798.85. That this exceeded the accused financial threshold and was therefore an abuse of the office in which the accused held.

Between 1 March 2018 and 31 March 2018, the accused authorized a payment of K109, 791.40 to Global Travel Centre. The payment was for external assessments travel for higher education institutions.  The State alleges that when the accused approved the payment, he abused his office for the purposes of gain. That Global Travel Centre is owned by DWU Travel Agency Limited. The directors of DWU Travel Agency Limited are the accused, Leonie Baptise and Palas Bokorom.
State further alleges that between 1 day of January 2019 and the 31 January 2019 the accused entered into an agreement namely License and Software Maintenance Agreement on behalf of the State with PCG Academia for the sum of K658, 628.86. That this exceeded the accused financial threshold and was therefore an abuse of the office in which the accused held.

Held:

1.	The case of State v Paul Kundi Rape [1976] [1976] PNGLR 96 identified two limbs in a no case to answer. They were later endorsed by the Supreme Court in The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287.

2.	The two limbs are distinguished in this sense (1) the first, is a no case to answer, that is, there is no evidence and (2) is an application to stop the case, that is, there is some evidence to support each element of the offence, but it is so tenuous or discredited or inconsistent with other evidence.

3.	The elements of the offence of Abuse of Office under section 92(1) of the Criminal Code are: (a) while employed in the Public Service, (b) abused the authority of his office, (c) did or directed to be done any arbitrary act, (d) prejudicial to the rights of another: State v Luma [2021] PGNC 31; N8798 (8 April 2021) and State v O'Neill [2021] PGNC 373; N9213 (14 October 2021).

4.	Dishonesty is not an element of the offence. It is not necessary for the State to prove conflict of interest, or that the accused intended to gain or that there was any conflict of interests: State v Luma [2021] PGNC 31; N8798 (8 April 2021) and State v O'Neill [2021] PGNC 373; N9213 (14 October 2021).

5.	However, where an accused is charged under section 92 (1) (2) of the Code, the State must prove that the accused did or directed to be done an arbitrary act, for the purpose of gain.

6.	An additional element which is not specifically stated under section 92, but the State must nonetheless prove is that the conduct of the accused is “…… serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects”: State v Luma [2021] PGNC 31; N8798 (8 April 2021), R v Quach [2010] VSCA 106; 201 A Crim R 522 and Obeid v R [2015] NSWCCA 309.
7.	The unanimous decision by the Supreme Court in Potape v State (2015) SC1613 recognized that distinction must be drawn between conduct that requires administrative, civil, or criminal sanctions.

8.	The prosecution must prove that the conduct is so serious that it warrants criminal charges: State v Luma [2021] PGNC 31; N8798 (8 April 2021), R v Quach [2010] VSCA 106; 201 A Crim R 522, Potape v State (2015) SC1613 and Obeid v R [2015] NSWCCA 309.

9.	In relation to the payment to Global Travel Centre, the State did not establish that the accused directed to be paid the said monies and that he abused his office by performing an arbitrary act. The State did not show how the accused actions were prejudicial to the interests of the Independent State of Papua New Guinea. There was no evidence presented as to how the accused gained.

10.	 In relation to count 1 and 3 of the Indictment whilst the State charged that there were two agreements, there were nine different agreements. The agreements are for purchase of software licenses and the maintenance of those software. The software are stand alone and operate independently of each other. The payment for each software license and maintenance agreement was below K500, 000.00.

11.	There is very little evidence that supports that any of the accused actions have been prejudicial to the Independent State of Papua New Guinea. Whilst the State has attempted to lead evidence that running the software is expensive, the evidence is that: it is the government’s vision, the system saves approximately K6 million in costs to DHESRT, universities and colleges, students have access to all the universities and are able to make for informed choices and students from private institutions are now able to apply for university and colleges as well. The old legacy was far more prone to corrupt practices.

12.	 As to count 4 in the indictment, the agreement had included maintenance components from the previous software. That was removed by a variation to the contract reflecting the separation of bills from the purchase of the new software style UNI10.

13.	A high-level meeting was conducted between DHERST and the Department of Finance. The Finance Secretary was present. The Deputy Secretary Finance called the Director of Fraud and Anti-Corruption seeking clearance. Clearance was given to process the payment. The signatories signed and the payment was processed.

14.	The State has not established prima facie that the accused abused his office under section 92 (1) of the Criminal Code.
15.	For the foregoing reasons, the application to stop the case is upheld.

Cases Cited
Papua New Guinea Cases

Potape v State (2015) SC1613 
State v Luma [2021] PGNC 31; N8798
State v O'Neill [2021] PGNC 373; N9213
State v Paul Kundi Rape [1976] [1976] PNGLR 96
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287

Oversea Cases

Obeid v R [2015] NSWCCA 309
R v Quach [2010] VSCA 106; 201 A Crim R 522 

Reference

Criminal Code

Counsel

Ms T Aihi and Ms S Mososo, for the State
Mr E Sasingian and Ms F Matiabe, for the Defence

DECISION ON NO CASE

19th January, 2022

1.	WAWUN-KUVI, AJ: The accused was charged with three counts of abuse of office under section 92 (1) of the Criminal Code and one count of abuse of office for the purposes of gain under section 92 (1)(2) of the Criminal Code.

2.	At the close of the State’s case the defence moved a no case to answer application, pursuant to State v Paul Kundi Rape [1976] [1976] PNGLR 96 which was later endorsed by the Supreme Court in The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287.

3.	The defence argue that the State’s case is inherently weak and inconsistent with other evidence.

4.	The State contends that the question of proof beyond reasonable doubt does not arise at this stage. That there is some evidence as to each element of the offence.

5.	The two limbs are distinguished in this sense (1) the first, is a no case to answer, that is, there is no evidence and (2) is an application to stop the case, that is, there is some evidence to support each element of the offence, but it is so tenuous or discredited or inconsistent with other evidence.

6.	I state at the outset that the trial was run in an unusual manner. The State’s crucial witness established that there was no abuse of office on the part of the accused.

7.	It was also evident that the Prosecutors did not understand their own case.

8.	Berrigan J in State v Paraka [2021] PGNC 416; N9159 (17 September 2021) stated “An experienced prosecutor will review a police brief well in advance of any trial. They will identify the most appropriate charges, the elements of those offences, and the evidence required to establish them to the requisite standard. They will understand their case theory, anticipate the defence case, and identify the weaknesses in their own case.”

9.	That was not done in this case. 

the elements

10.	The elements of the charged of Abuse of Office under section 92 (1) of the Criminal Code were identified by Berrigan J in State v Luma [2021] and later by Cannings J in State v O'Neill [2021]. The State must prove that the accused: (a) while employed in the Public Service, (b) abused the authority of his office, (c) did or directed to be done any arbitrary act, (d) prejudicial to the rights of another. Dishonesty is not an element of the offence.

11.	 Under section 92(1) of the Code, it is not necessary for the State to prove conflict of interest, or that the accused intended to gain or that there was any conflict of interests: State v Luma [2021 and State v O'Neill [2021].

12.	However, where an accused is charged under section 92 (1) (2) of the Code, the State must prove that the accused did or directed to be done an arbitrary act, for the purpose of gain.

13.	There is a further element to the offence of abuse of office which is not specifically stated under section 92 (1). Berrigan, J in State v Luma [2021], adopted the Victorian Supreme Court case of  R v Quach [2010], where it was held that the misconduct charged must be:

“…… serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.”

14.	The unanimous decision by the Supreme Court in Potape v State (2015) SC1613 recognized that distinction must be drawn between conduct that requires administrative, civil, and criminal sanctions.  The Court stated that:

“It is the criminality of the act that is the gist of an offence involving fraud or dishonesty…..That not every wrong known to law is a crime.”

15.	Five months after the decision in Potape v State (2015) SC1613, the Court of Criminal Appeal in New South Wales in Obeid v R [2015] endorsed R v Quach [2010] as the correct position in law. These authorities reiterate that the prosecution must prove that the conduct is so serious that it warrants criminal charges.

16.	Obeid v R [2015] NSWCCA 309 described the fifth element as a process of properly analyzing the conduct or referred to as a “qualitative assessment”.
17.	The additional element is necessitated by the requirement that there must be distinction draw between the conducts described by the Supreme Court in Potape v State (2015) SC1613. As stated in Obeid v R [2015]:

“Far from leaving the boundaries of the offence “entirely at large”, it is a necessary condition that the misconduct have the requisite serious quality, meriting criminal punishment, in light of the nature and importance of the office and the public objects served. It is this requirement, ultimately, which confines the scope of the offence.”

18.	Having identified the elements, I must decide whether the State has established its case on the required standard in a no case to answer.

the charges

19.	I address count 2 on the indictment first as it relates to a separate allegation.

20.	The indictment charges:

“Count 2: 		JAN CZUBA of GLIWICE, POLAND, stands charged that he between the 1st day of March 2018 and the 31st day of March 2018 at Port Moresby in Papua New Guinea being employed in the Public Service as  the Secretary of the Department of Higher Education Research, Science &Technology did abuse in the authority of his office, directed to be done a payment of One Hundred and Nine Thousand Kina Seven Hundred and Ninety One Kina Forty Toea (K109, 791.40) payable to Global Travel Centre prejudicial to the lawful rights of the Independent State of Papua New Guinea for the purposes of gain.”

21.	The State alleged that the accused commissioned a team within DHERST called the Executive Management and Leadership Team (EMLT). That this team deliberated and approved contracts and deliberated on other administrative matters.

22.	That between 1 March 2018 and 31 March 2018, the accused authorized a payment of K109, 791.40 for external assessments travel for higher institutions. The payment was drawn from the Higher Education Sector Improvement Program (HESIP) Trust Account held with Bank of South Pacific, account number 1009104033. The monies were paid to Global Travel Centre.
23.	It is alleged that Global Travel Centre is owned by DWU Travel Agency Limited. The directors of DWU Travel Agency Limited are the accused, Leonie Baptise and Palas Bokorom.

The Evidence

24.	The Deputy Secretary Operations (Finance) Steven Nukuitu, State Solicitor Daniel Rolpagarea, and Chief Commissioner for the National Procurement Commission agree that it is within the accused financial power to sign for payments under K500, 000.00.

25.	To support this charge, the State relied on the evidence of Sebastian Bosco. He was the Acting Manager for TVERT. 

26.	He is the complainant. He says that he identified fraudulent activities and decided to investigate the accused. He agrees that there was no formal investigation commissioned by DHERST to investigate allegations of malpractice or corruption.

27.	He says that DHERST only uses Air Niugini to purchase the tickets for students. Third level airlines are used in place of Air Niugini for remote areas.

28.	He went online to the Investment Promotion Authority website and accessed public documents which showed that the accused was a Director of Global Travel Centre. 

29.	This witness gave opinion on matters that were not within his scope of knowledge. This witness reports to the Deputy Secretary Operations (DHESRT). The Finance and Administration branch also reports to the Deputy Secretary Operations (DHERST).

30.	The then Executive Finance Manager responsible for the Finance and Administration branch and later Acting Deputy Secretary Operations is state witness Ruth Philip. 

31.	Mrs. Philip provided all relevant documents to police when served with a search warrant.

32.	She was the person who processed all the relevant payments to the service providers. Her evidence is that there was no fraud or malpractice in relation to all the payments, not just the payment that relates to this count but all the counts in the indictment.
33.	She explained that EMLT was formed during the time of Dr William Tagis, when DHERST was the Office of the Higher Education (OHE). Contrary to the State’s allegation that the accused had formed the EMLT.

34.	She further explained that DHERST was facing a lot of logistics issues with Air Niugini. This was between 2013 and 2014. As a result, an investigation team was commissioned to identify the issues. This led to the calling of expression of interest from travel agencies. A team then went through the expressions and identified credible travel agencies. A few agencies were identified and selected. One of which was Global Travel Centre. Global Travel Centre is the business arm of the Divine Word University. This was done when Dr William Tagis was the head of the Office of Higher Education.

35.	According to the Investment Promotion Authority documents tendered by consent:

•	 Business Name Extract exhibited as “D41” shows that Global Travel is owned by entity 1-63931.
•	Company Extract exhibited as “D42”, shows that entity 1-63931 is DWU Travel Agency Ltd.
•	Certificate of Amalgamation exhibited as “D45” shows that DWU Travel Agency Ltd was amalgamated with other companies to become DIWAI ENTERISES LTD. This took effect on 25 June 2015.
•	The Amalgamation was a consequence of Meeting of the Directors of DWU Travel Agency Limited on 18 May 2015 exhibited as “D40”. It was during the meeting that Fr Jan Czuba tendered his letter of resignation as Director and Chairman. The resignation was accepted and took effect upon close of the meeting.

36.	As a result of the resolution, a letter dated 3 May 2016 exhibited as “D43” was sent to the ANZ Banking Group authorizing the removal of Menuka Peiris and Fr. Jan Czuba as signatories to the DIWAI ENTERPRISE LTD account.

37.	From the foregoing, the State has not established the elements of the offence of abuse of office for gain.

38.	The accused was not responsible for obtaining the services of Global Travel. 

39.	He was not a director of Global Travel, DWU Travel Agency Ltd or DIWAI Enterprises at the time he authorized the payments. 
40.	There was no evidence presented as to how the accused gained from authorizing the payment. The State did not even establish in what manner the independent State of Papua New Guinea was prejudiced.

41.	There is also no evidence that the accused directed the payments to be done. 

42.	The only evidence is that he did sign a cheque and so did the other signatories. He was well with his powers to sign for the sum of K109, 791.40. He was not a director at the time the payments were made. He was not part of the decision to engage the company. The decision to engage the company was done when DHERT was still OHE and was done because of the need to ensure that travel arrangements were done effectively and efficiently. 

43.	The State’s case has fallen short of establishing the required elements of Abuse of Office for the purposes of gain under section 92 (1) (2) of the Criminal Code.

Count 1 and 3

44.	 I deal with count 1 and 3 together.

45.	 The indictment charges:

Count 1:	JAN CZUBA of GLIWICE, POLAND, stands charged that he between the 1st day of August 2017 and the 31st day of August 2017 at Port Moresby in Papua New Guinea being employed in the Public Service as the Acting Secretary of the Department of Higher Education Research, Science &Technology did in abuse of the authority of his office entered into an agreement namely License and Software Maintenance Agreement on behalf of the State with PCG Academia that did not adhere to the public tender and procurement process costing the State the total sum of One Million, Three Hundred and Nineteen Thousand Four Hundred and Twenty three Kina Twenty seven Toea (K1, 319, 423.27) prejudicial to the lawful rights of the Independent State of Papua New Guinea.

Count 3: 	JAN CZUBA of GLIWICE, POLAND, stands charged that he between the 1st day of August 2017 and the 31st day of August 2017 at Port Moresby in Papua New Guinea being employed in the Public Service as the Acting Secretary of the Department of Higher Education Research, Science &Technology did in abuse of the authority of his office entered into an agreement namely License and Software Maintenance Agreement on behalf of the State with PCG Academia that did not adhere to the public tender and procurement process costing the State the total sum of K1, 652, 798.85, prejudicial to the lawful rights of the Independent State of Papua New Guinea.
 
Allegations

46.	The State alleged that between 2017 and 2019 the accused on behalf of the State through DHERST entered into agreements with a Polish Company called PCG Academia. The agreements were for Software Licenses and Maintenance Agreements. 

47.	There were three agreements each cost above the threshold of K500, 000.00. The agreements were to enhance the Department’s endeavor to create on-line for students attending tertiary institutions around the country.

48.	Between 1 August 2017 and 31 August 2017, DHESRT entered in the first License Agreement and Software Maintenance Agreement with PCG Academia. 

49.	Between 1 November 2017 and 31 March 2019, DHERST paid various sums of monies to PCG Academia totally K1, 319, 423.27.

50.	The State then says that between 1 June 2018 and 30 June 2018, the accused entered into the second agreement with PCG Academia for a period of 6 months.

51.	As a result of that agreement various payments were made to PCG Academia in the sum of K1, 651, 798.85.

52.	The State alleges that the agreements were above the accused threshold of K500, 000.00. And that by entering into those agreements he breached the procurement process and therefore abused his office.

The Evidence

53.	For counts 1 and 2, the indictment charged that there were two agreements. The State witnesses including the arresting officer say otherwise. 
54.	There are nine separate agreements each for different matters. The agreements are for purchase of software licenses and the maintenance of those software. 

55.	State witness Ruth Philip who is the Deputy Secretary Operations DHERST explained that the software programs are stand alone and operate independently of each other.

56.	The agreements show and explained by Ruth Philp and even to some extent by Charles Mabia another Deputy in DHERST, that the owner of the software remains PCG Academia. It is the license to use the software that the State through DHERST is purchasing. Each software requires maintenance, hence the maintenance agreements. The maintenance agreements for each of the software was below K500, 000.00 and within the accused powers to approve.

57.	It can not be assumed that all the agreements are the same. The technical fields and the specialized areas of law that surround those fields must be understood and presented to the Court.

58.	In this case, the State did not appreciate the technical area of Information Technology and Computing. Nor did the State appreciate the specialized area of law as it relates to agreements for software.

59.	This led to the defence being responsible for eliciting that evidence from State witnesses. The relevant witnesses were not hostile. To the contrary, the witness explained far more clearly the process and the laws when asked by the defence.

60.	The launching of DHESRT into the Information and Communications Technology (ICT) stage was not on the accused initiative. As Mrs Philips and Mr. Nukuitu explained, it is the directive and vision of government. NEC decision 25/2017 is the government direction to digitalize and transform the Higher Education Sector.

61.	The organization approached PGC Academia and not the accused. This was because Papua New Guinea universities, that is, University of Goroka, PNG university of Technology, Divine Word University and Pacific Adventist University were successful in implementing management information software developed by PCG Academia.

62.	Deputy Secretary (Operation) Finance, Steven Nukuitu, explained the mandatory signatures to the DHERST trust account are the accused, himself and the Secretary for Finance. He signed for some of the payments and the Secretary signed for others. Before he signs for the payments, a there is a team within his division that performs due diligence. He division also plays and advisory role to government departments. He and his team monitored the various stages. He had the opportunity to also see the progress of the various stages. He explained that due diligence was done at various regulatory bodies before the money was transferred to PCG Academia. He explained that the procurement process begins at the Department of Finance. That any minor agreements are within the Departmental Head power to approve.

63.	All DHESRT witness called by the State, explained that the online phase started with the National Online Application System. 

64.	The software enabled students to upload their school leavers forms themselves. The school leavers forms were still filled in manually by the students. 

65.	This removed the requirement in which students had to fill in the school leavers forms and someone from the school had to physically carry the paperwork to Port Moresby. This disadvantaged many students and far more so for students from schools in the provinces and remote areas of Papua New Guinea.

66.	The payment for this software was below K500, 000.00. Due Diligence was done, and clearance was made by the Department of Finance, Internal Revenue Commission and Central Bank before the monies were remitted overseas. 

67.	The next software was the National Online Facilitation Software. This software was responsible for the selection of students to university. 

68.	This removed the requirement for universities to send staff to Port Moresby to conduct selections. This removed associated costs such as vehicle hire, hotel accommodation, venue bookings and travel allowances. These costs were not only borne by DHERST but also the universities.

69.	 Charles Mabia only gave estimates on the difference in monetary value. Sebastine Bosco is not in management nor is he a finance officer. His evidence was an opinion not based on any relevant material. 

70.	Ruth Philip who was the Finance Manager and Secretary Operations and was part of the old system; And was part of the development of the new system, estimates that the government now saves approximately K6 million annually.

71.	The payment for this software was below K500, 000.00. Due Diligence was done, and clearance was made by the Department of Finance, Internal Revenue Commission and Central Bank before the monies were remitted overseas.

72.	The Department then started receiving complaints from parents of children who attend private schools. As was under the old system which carried over to the new system, students attending private institutions or schools were not recognized.  Therefore, the majority missed out on university placing in Papua New Guinea. Even if some of them did get into university, it was not through the government school leavers process.

73.	This resulted in the purchase of the software license for the Online (Common) Application system for extension for Off-line students and off-line schools.

74.	This enabled students from private schools to apply for university placing. Considering the growth of the private education industry in Papua New Guinea one can appreciate how detrimental it would have been for students attending the private institutions or schools had they not been accommodated under the new system.

75.	The payment for this software was below K500, 000.00. Due Diligence was done, and clearance was made by the Department of Finance, Internal Revenue Commission and Central Bank before the monies were remitted overseas.

76.	 Another software purchased by DHERST was to cater for students on HECAS and TESAS scholarship.

77.	The payment for this software was below K500, 000.00. Due Diligence was done, and clearance was made by the Department of Finance, Internal Revenue Commission and Central Bank before the monies were remitted overseas.

78.	The next software enabled technical institutions and colleges to be also featured into the system. Students had additional options to apply to teachers’ colleges, nursing colleges, the maritime college and so forth.

79.	The payment for this software was below K500, 000.00. Due Diligence was done, and clearance was made by the Department of Finance, Internal Revenue Commission and Central Bank before the monies were remitted overseas.
80.	The purchase of the licenses and implementation of the various software had now made it possible for students to have five choices as opposed to the old manual system of three. 

81.	They also have the option of changing their choices as the system offered a grace period. Unlike the old system were once a student filled in the school leavers for, it was final. 

82.	The students also have access to the different higher institutions and the courses or programs that they offer.  The students can access they system anywhere in Papua New Guinea and make informed choices about their feature careers. Unlike, the old system where some universities conducted Expo’s at major centers and only a few students had access. This is disadvantaged students from remote areas and smaller provinces.

83.	 There is very little evidence that supports that any of the accused actions have been prejudicial to the Independent State of Papua New Guinea.

84.	Whilst the State has attempted to lead evidence that running the software is expensive, the evidence is that:

•	it is the government’s vision
•	the system saves approximately K6 million in costs to DHESRT, universities and colleges 
•	students from private institutions are now able to apply for university and colleges as well.
•	students have far more access and options to decide from than before.
•	The old legacy was far more prone to corrupt practices.

85.	Prima facie, the State has not satisfied the elements of the offence of abuse of office under section 92 (1) of the Criminal Code.

Count 4

86.	The indictment charges:

Count 4:	JAN CZUBA of GLIWICE, POLAND, stands charged that he on the 1st day of January 2019 and the 31st day of January 2019 at Port Moresby in Papua New Guinea being employed in the Public Service as the Secretary of the Department of Higher Education Research Science & Technology did abuse in the authority of his office entered into an agreement namely License and Software Maintenance Agreement on behalf of the State with PCG Academia that did not adhere to the public tender and procurement process costing the State the total sum of Six Hundred and Fifty-eight Thousand and Six Hundred and Twenty-eight Kina, Eighty-six Toea (K658, 628.86) prejudicial to the lawful rights of the Independent State of Papua New Guinea.

87.	The State alleges that between 1 January 2019 and 31 January 2019, the accused entered into an agreement with PCG Academia namely License and Software Maintenance Agreement. 

88.	If further alleged that on 12 April 2019 a sum of K658, 628.86 was drawn from DHERST bank account number 1009104033 and paid to PCG Academia.

89.	The State says that when the accused entered into the agreement in breach of the public service procurement process, he abused his office. 

The Evidence

90.	Both the Deputy Secretary (Operations) Finance and the Deputy Secretary (Operations) DHERST have explained the process that was taken to facilitate this payment. 

91.	The payment is not purchase of a Soft License and Maintenance Agreement alone. The monies included bills that were owed for services rendered. The agreement clearly shows that the maintenance component for the previous software were included into this agreement. 

92.	Hence, there was a variation to separate the bills from the previous agreements from the purchase of the new software and its maintenance titled “UNI10”. 

93.	UNI10 allows universities to manage student welfare.

94.	The variation was not provided to the State Solicitor for his opinion. It was tendered through State witness Ruth Philip who confirmed that she provided it to police.

95.	There was a meeting by all High-Level Officials from the Department of Finance and DHERST regarding this payment. The Director of Fraud and Anti-Corruption Mathew Damaru was contacted by Deputy Secretary Operations (Finance) seeking police clearance to process the payment. The Secretary for Finance was present at that meeting. Clearance was given and the relevant signatories including the accused signed for the payment.

96.	Again, due diligence was performed by the Internal Revenue Commission and the Central Bank before the payments were remitted. 

97.	At its highest the State cannot establish that the accused abused his office and performed an arbitrary that was prejudicial to the interests of the Independent State of Papua New Guinea.

REFFERAL TO LAWYER’S STATUTORY COMMITTEE

98.	During the evidence of Ruth Philip, it became apparent that a total of eleven agreements were given to police pursuant to a search warrant. Only three of the agreements were placed in the police file. Additionally, the annexures to Mrs. Philip’s statement were removed by the Investigating Officer.

99.	The Defence have asked that the Prosecutors be referred to the Lawyer’s Statutory committee for failure to disclose the agreements.

100.	Rule 17 of the Professional Conduct Rules outline the duty of a prosecuting lawyer.

“17. PROSECUTING A PERSON ACCUSED OF CRIME.

(1) A prosecuting lawyer in a case shall not seek to obtain a conviction by any improper means, and it is his duty to present before the Court the case for the prosecution fairly, impartially and in a competent manner.

(2) If a prosecuting lawyer in a case knows of the identity or existence of–

(a) a person who may be able to give evidence relevant to the case, but who is not proposed to be called before the Court by the prosecution; or
(b) documentary evidence relevant to the case, but which it is not proposed the prosecution will produce,
he shall inform the defence of the identity or existence (if known) of that person or of that documentary evidence prior to the trial.
(3) Where a witness called by the prosecution gives evidence on a material issue in substantial conflict with a prior statement made by him, the prosecuting lawyer shall inform the defence accordingly.
………”

101.	The relevant provision as it relates to the failure to disclose the agreements is rule 17 (2) (b).

102.	 The question here is whether on the materials before me, the prosecutors were aware of the agreements and failed to disclose them to secure a conviction by improper means.

103.	Whilst the case was not prosecuted diligently, I do not see on the face of the materials before me, that the prosecutors willfully failed to disclose the eleven agreements. 

104.	The statement of Ruth Philips exhibited as “D36” does not specifically refer to eleven agreements. Even the schedule that is attached to her statement does not clearly identify the agreements by name. 

105.	The decision of the arresting officer to remove crucial evidence was the cause of the State not being aware of the existence of the other agreements.

106.	However, Ruth Philip, Steven Nuitu – Deputy Secretary Finance and all other DHEST witnesses were aware of the agreements. The Prosecutor still had an obligation to properly interview its witnesses. Had that been done, the existence of the 11 agreements would have been discovered. 

107.	I am not satisfied that the prosecutors were aware of the agreements. I do accept that the case was not prosecuted to the required standard of competence, but the material as said do not disclose any willful or deliberate actions by the prosecuting lawyers to require a referral to the Lawyer’s Statutory Committee.

108.	Nonetheless, this case, should serve as a warning to the Prosecuting counsels that their duty as Ministers of Justice is to conduct trials in a fair and competent matter. A prosecutor’s duty is not to secure a conviction. The duty is to seek justice. The role of a prosecutor is to ensure that the guilty are convicted, the innocent are set free and to protect everyone’s constitutional rights, which includes the accused, in the process.

CONCLUSION

109.	There is no evidence that the accused directed payment to Global Travel Centre and that he gained from the payment.

110.	The State also did not establish the elements of abuse of office. The relevant witnesses have demonstrated that the purchase of the software programs have been beneficially to the interests of the Independent State of Papua New Guinea.

111.	The application to stop the case is upheld.

Orders

112.	The Orders are as follows:

1.	The application to stop the case is upheld.
2.	The accused is acquitted of all four counts on the Indictment in the Indictment dated 6 December 2021
3.	The accused is discharged.
4.	The accused bail shall be refunded.
5.	Guarantors paid sureties shall be refunded.
6.	The accused passport shall be returned.

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Offender