State v Sent [2022] PGNC 24; N9444 (18 February 2022)

N9444

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 202 OF 2014

STATE

V

WILLIAM SENT

Waigani: Wawun-Kuvi, AJ
2022: 18^th February

CRIMINAL LAW-TRIAL-Abuse of Office, Criminal Code, s 92 (2) -whether accused abused the authority of his office as the Acting First Assistance Secretary for the Department of National Planning and Monitoring-Whether the accused did any arbitrary act-Whether the act was prejudicial to the rights of another? Whether accused did so for the purpose of gain?

CRIMINAL LAW-TRIAL- Misappropriation, s383A (1)(2) of the Criminal Code-Whether accused dishonestly applied property belonging to the State to his own use?

Facts

The accused was the Acting First Secretary of the Department of National Planning and Monitoring (DNPM).

The State alleged that between 5 March 2011 and 30 June 2011, the accused directed Wakai Digine to compile a false Project Proposal Appraisal Report on Tiki Coffee Plantation rehabilitation project. This was done to enable Tiki Coffee Estate Limited to receive payments from the State. There was no physical site inspection done by DNPM to support the funding.

After the report was completed, the accused instructed one Paul Daggun, to raise payment of K700, 000.00 to Tiki Coffee Estate Limited. A cheque was subsequently deposited into the account of Tiki Coffee Estate Limited.
The State alleges that following the payment, a sum of K200, 000.00 was transferred from Tiki Coffee Estate Limited’s account into the account of Kajah Development and Business Services Limited (KDBSL). The State alleges that KDBSL was owned by the accused.

The State alleged that there was no rehabilitation work done on the plantation.
And that when he directed Wakai Digine to compile the false report, he had done so in the abuse of his office.

Held:

1. The evidence presented by the State is that the rehabilitation of the Tiki Coffee Plantation Estate was an existing project initially funded under the National Agriculture and Development Program. The Program was managed by the Department of Agriculture and Livestock. There were inspections conducted by the Department of Agriculture and Livestock for several projects including Tiki Coffee Plantation Estate. Further funding was approved in 2009.
   
2. The projects under the National Agriculture and Development Program were assimilated and transferred to the Department of National Planning and Monitoring under the Public Investment Program (PIP).
   
3. Tiki Coffee Estate Limited then resubmitted the proposal for the part payment of the project grant to DNPM. The proposal was evaluated and based on the material presented in addition to a report from the Department of Agriculture and Livestock, the funding was approved.
   
4. The State has not established prima facie that the accused abused his office for the purpose of gain under section 92 (1) (2) of the Criminal Code.
   
5. As for the charge of misappropriation, there was no dispute that a sum of K200, 000.00 was deposited by Tiki Coffee Estate Limited into the account of Kajar Development and Business Services. A company owned by the accused.
   
6. There was no evidence proving that the property belonged to the Independent State of Papua New Guinea.
   
7. There was no evidence demonstrating a connection between the payment of K700, 000 into Tiki Coffee Estate Limited account and the transfer of K200, 000.00 from Tiki Coffee Estate Limited to Kajar Development and Business Service.
   
8. The State did not call any evidence to establish misappropriation.
   
9. For the foregoing reasons, the application to stop the case is upheld.
10. A verdict of not guilty is returned.

Cases Cited:

Papua New Guinea Cases

State v Czuba [2022] PGNC 15; N9397
State v O'Neill [2021] PGNC 373; N9213

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

Oversea Cases

Obeid v R [2015] NSWCCA 309
R v Quach [2010] VSCA 106; 201 A Crim R 522
Stephens v The Queen [1978] HCA 35; (1978) 139 CLR 315.
Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198.

Reference

Criminal Code (Ch 262)

Counsel

Ms Comfort Langtry and Ms Lois Ilave, for the State
Mr Desmond Kipa, for the Defence

DECISION ON NO CASE

18^th February, 2022

1. WAWUN-KUVI, AJ: The accused was charged with one count of abuse of office for the purpose of gain under section 92 (1)(2) of the Criminal Code and one count of misappropriation under section 383A (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] PNGLR 96. That decision 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 argued that the State did not provide any evidence to demonstrate that the accused committed the offences as alleged in the indictment. That in addition, there was already a National Court decision by Salika, DCJ (as he then was) in The State v John Kol, CR(FC) 37& 45 of 2014 which demonstrated that the project was legitimate, and monies were appropriated accordingly.
   
4. The State correctly concedes.
   

THE CHARGES

5. The Charges are:
   

“Count 1: WILLIAM SENT of KEREKAMB VILLAGE, MOUNT HAGEN, WESTERN HIGHLANDS PROVINCE, stands charged that he between the 5^th day of March 2011 and the 30^th day of June 2011 at Port Moresby in Papua New Guinea, being employed in the public service as the Acting First Assistant Secretary of the Infrastructure and Economic Division of the Department of National Planning and Monitoring, directed to be done in the abuse of authority of his office, the compilation of a false Project Proposal Appraisal report in breach of government procurement process, prejudicial to the lawful rights of the Independent State of Papua New Guinea for the purposes of gain.

Count 2: WILLIAM SENT of KEREKAMB VILLAGE, MOUNT HAGEN, WESTERN HIGHLANDS PROVINCE, stands charged that he between the 1^st day of May 2011 and the 30^th day of September 2013, at Port Moresby in Papua New Guinea, dishonestly applied to his own use and the use of others monies in the sum of Two Hundred Thousand Kina (K200, 000.00), the property of the Independent State of Papua New Guinea.”

6. The State alleged that in 2011, the accused was employed as the Acting First Assistant Secretary (A/FAS) within the Department of National Planning and Monitoring (DNPM). He oversaw the Infrastructure and Economic Division.
   
7. As the A/FAS of Infrastructure and Economic Division, the accused’s responsibilities involved ensuring that project proposals for funding under the Public Investment Program (PIP) were properly screened before funding was considered by government.
   
8. On 30 June 2008, the State entered into an agreement with Tiki Coffee Estate Limited. The State agreed to fund K1.5 million for the rehabilitation of the Tiki Coffee Plantation in Dei District, Western Highlands Province. The funding was sourced from the National Agriculture Development Program (NADP).
   
9. The State alleges that K750, 000.00 was paid in 2009. That the balance was to be paid upon the submissions of a project proposal appraisal report.
   
10. It is the State’s allegation that the accused directed his officer namely Wakai Digine to prepare a false project proposal appraisal report. This report was prepared based on documents submitted by Tiki Coffee Estate Limited. There was no physical inspection.
    
11. After the report was completed, the accused directed a Paul Daggun to raise the cheque for the payment of K700, 000.00. A cheque was raised and deposited into the account of Tiki Coffee Estate Limited.
    
12. The State alleged that the accused was paid K200, 000.00 by Tiki Coffee Estate Limited for his part in facilitating the payment.
    

THE ELEMENTS

13. 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^[1].
    
14. 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.^[2]
    
15. An additional element which is not specifically stated under section 92, but the State must still prove is that the accused conduct 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.”^[3]
    
16. In terms of misappropriation, the State must prove that the accused dishonestly applied property to the use of another.
    
17. The State needs to prove that the property is entrusted to the accused to apply it in a particular way: Stephens v The Queen [1978] HCA 35; (1978) 139 CLR 315. There must be a fiduciary relationship between the accused and the property: Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198.
    

THE EVIDENCE

18. The State tendered by consent the Record of Interview exhibited as “S1”, the statement of Frank Loh attaching photographs exhibited as “S2” and the Project Proposal Appraisal by Wakai Digine exhibited as “S3”.
    
19. The State called Wakai Digine. He was then the Program Planning Officer. He has a bachelor’s degree in Agriculture and Science, a Certificate in Project Management and is currently undergoing his Masters in Executive Business Management at the University of Papua New Guinea.
    
11. He explained that the Tiki Coffee Plantation rehabilitation was an existing project. It was initially funded under the National Agriculture and Development Program. The Program was managed by the Department of Agriculture and Livestock.
    
12. The projects under the National Agriculture and Development Program were assimilated and transferred to the Department of National Planning and Monitoring under the Public Investment Program (PIP).
    
13. Tiki Coffee Estate Limited then resubmitted the proposal to DNPM for the part payment. He evaluated the proposal and based on the materials presented to him he recommended the funding of the balance.
    
14. He agreed that he did not do a physical inspection of the plantation. He explained that there were several prevailing conditions at that time that did not allow for a physical inspection of all projects. Firstly, DNPM did not have a monitoring and evaluation team during the relevant period, secondly there was no funding to carry out inspections, thirdly there were ongoing changes in executive management positions and finally DNPM came under scrutiny from the then task force sweep and all the staff were in fear of performing their work at the risk of being arrested.
    
20. In cross examination he was shown a document titled Compliance and Monitoring Report, Physical Audit. The document was under the letter head of Department of Agriculture and Livestock, National Agriculture and Development Program. He confirmed that that was also a document that he assessed in his decision to recommend the funding. The document was entered into evidence and marked as exhibit “D1”.
    
21. From that document, he confirmed that physical inspections were conducted by the Department of Agriculture and Livestock; and funding for the balance was approved in 2009.
    

CONSIDERATION

22. There is very little evidence that the accused directed Wakai Digine to prepare a false Project Proposal Appraisal Report.
    
23. The evidence is that there was an existing project. That a genuine Project Proposal Appraisal Report was prepared based on proper supporting documentation including a Compliance and Monitoring Report from the Department of Agriculture and Livestock.
    
24. Inconsistent with the State’s allegations, the documents tendered demonstrate that the agreement was entered in 2008; And the first part of the payment was made in 2008. The approval was given for the release of the second half of the payment following an inspection by officers from the Department of Agriculture and Livestock in 2009.
    
25. There is no evidence to establish all the elements of the offence.
    
26. As to the second count on the indictment, the State relied on the accused admissions in the Record of Interview. That is the entirety of the evidence against the accused. That is, a sum of K200, 000.00 was deposited by Tiki Coffee Estate Limited into Kajah Development and Business Service Account Limited’s account.
    
27. The State charged that the monies belonged to the Independent State of Papua New Guinea. There was no evidence provided to prove that the monies belonged to the Independent State of Papua New Guinea.
28. There was no evidence called to establish a connection between the deposit of the K700, 000.00 into Tiki Coffee Estate Limited and the subject transfer of K200, 000.00.
    
29. The State has failed to established prima facie that the accused misappropriated property belonging to the Independent State of Papua New Guinea.
    

CONCLUSION

30. The State has not established the elements of abuse of office and misappropriation.
    
31. The application to stop the case is upheld.
    

Orders

32. The Orders are as follows:
    
    1. The application to stop the case is upheld.
    2. A verdict of not guilty is returned for both counts on the indictment dated 19 November 2021.
    3. The accused is acquitted of the two counts on the Indictment.
    4. The accused is discharged of the Indictment.
    5. The accused’s bail shall be refunded.
    6. The paid sureties are refunded.
       

_______________________________________________________________
The Public Prosecutor: Lawyers for the State
Wang Dee Lawyers: Lawyers for the Offender

---

^[1] State v Luma [2021] PGNC 31; N8798 (8 April 2021), State v O'Neill [2021] PGNC 373; N9213 (14 October 2021) and State v Czuba [2022] PGNC 15; N9397 (19 January 2022)
^[2] State v Czuba [2022] PGNC 15; N9397 (19 January 2022).
^[3] State v Luma [2021] PGNC 31; N8798 (8 April 2021), State v Czuba [2022] PGNC 15; N9397 (19 January 2022), R v Quach [2010] VSCA 106; 201 A Crim R 522 and Obeid v R [2015] NSWCCA 309.