State v Gewa [2025] PGNC 219; N11387 (30 May 2025)

N11387

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 40; 42; 44; 45; & 47 /2019

BETWEEN:

THE STATE

AND

COPLAND GEWA

POPONDETTA: KUPMAIN, AJ
2024: 8 February & 22,23,29,30,31 July & 9 August
2025: 10,14,15,18,19,20,27 March & 30 May

CRIMINAL LAW – VERDICT –Misappropriation of Public Funds – Monie held in Work Permit Trust Account - Most elements of the offence and facts not in contention – Only Dishonest application by the Accused – Verdict of not guilty.

CRIMINAL LAW – Possible Motive to lay complaint of Fraud against the accused – Possible Selective Investigation - Possible Malicious Prosecution – Prosecution evidence insufficient- Element of Dishonesty not proven beyond reasonable Doubt - Section Sections 383A (1) (b).

Cases cited:
Brian Kindilawi v The State [1987] PNGLR 183
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Francis Laumadava [1994] PNGLR 291
The State v Ati Worbiro (No.1) (2016) N6398
Jimmy Maladina v. State (2016) SC1495
Paul Tiensten v. State (2014) SC1468
The State v Robert Sandra & ors (2019) N8296

Counsels:
Ms. Aihi, for the State
Mr. Napu, for the accused

JUDGEMENT ON VERDICT

30 May 2025

1. Kupmain AJ: This is my decision on verdict in the matter of The State v Copland Gewa CR (FC) 40-47 of 2019. The accused was charged with one count of misappropriation on an indictment dated the 10^th of July 2024.
   

Indictment

2. The indictment alleged that the accused Copland Gewa between the 1^st day of January 2012 and the 31^st day of December 2016 in the National Capital District and the Northern Province in Papua New Guinea dishonestly applied to his own use and to the use of others the sum of K969,711.80 the property belonging to the Independent State of Papua New Guinea contrary to Section 383A subsection (1) (a) of the Criminal Code.
   

Facts

3. The brief facts alleged that between the 1^st of January 2012 and the 31^st of December 2016 the accused Copland Gewa was employed by the Department of Labour and Industrial Relations as the provincial labour officer for Northern Province. The Work Permit Trust Account#1001037437 held with the Bank South Pacific Limited was created for the purpose of improving the administration and operation of the activities undertaken by the DLIR (Department of Labor and Industrial Relations) and the use of this account was to be guided by a Trust Instrument, Financial Instructions and the Public Finance Management Act of 1995.
   
4. At the material time the accused travelled between Popondetta and Port Moresby and so incurred a number of expenses for travel, accommodation and other services. He incurred payments to these service providers causing the drawing of monies from the Work Permit Trust Account to settle these bills. It was further alleged that some of these monies were paid to his account to which he dishonestly applied to his own use and to the use of others. These payments were not done in accordance with the procedures as prescribed in the Public Finance Management Act 1995 and the Financial Instructions. The State further alleged that the accused dishonestly applied to his own use and to the use of others the amount of K969,711.80 the property of the Independent State of Papua New Guinea. The actions of the accused amounted to the offence of misappropriation of property thereby contravening Section 383 A (1) (a) of the Criminal Code.

Upon arraignment the accused pleaded not guilty, and a trial was conducted. The charge was brought under Section 383A (1) (a) of the Criminal Code Act.

The Charge

5. The charge of misappropriation is as follows;
   

383A. MISAPPROPRIATION OF PROPERTY.

(1) A person who dishonestly applies to his own use or to the use of another person -

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:
(a) where the offender is a director of a company and the property

dishonestly applied is company property; or
(b) where the offender is an employee and the property dishonestly

applied is the property of his employer; or
(c) where the property dishonestly applied was subject to a trust, direction

or condition; or
(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

6.Elements of Misappropriation

This offence of misappropriation has three elements to it which the State must prove beyond reasonable doubt that the accused:

1. Dishonestly
2. Applied to his own use and to the use of another
3. Property belonging to another person.
   

Issues

7. The issue before this court is whether the accused dishonestly applied to his own use and to the use of others the sum of K969,711.80 which belonged to the Independent State of Papua New Guinea.

Summary of Prosecution Evidence

8. In proving its case the State’s evidence came in the form of documentary evidence and oral testimony from their witnesses. The State by consent tendered 79 documents altogether as per the exhibit list.

ANNEXURE ‘A’ PROSECUTIONS EXHIBITS

No	Document	No. Of Pages	Page No. In HUB	Exhibit Number
1	Finance Forms 3 and 4 dated 30th January 2013 for the amount of K920.00 paid to Copland Gewa for payment of reimbursement of personal funds used to purchase fuel. Attaching 4 photocopied receipts on page, receipt numbers; No.247089 for the amount of K100.00 No.247090 for the amount of K500.00 No.277908 for the amount of K100.00 No. 247085 for the amount of K100.00 Bearing the common seal of Matara No. 8 Pty Limited.	2	101-103	S1
2	Finance Forms 3 and 4 dated 15th March 2013 for the amount of K17,500.00.00 to Copland Gewa being for funding the launching of the PLO vehicle. Attaching a List of particulars-Launching of the Official Vehicle of the Provincial Labor Office-Oro.	3	104-107	S2
3	Finance Forms 3 and 4 dated 26th November 2013 for the amount of K33,730.00.00 to Copland Gewa being payment for accommodation, travel allowance, transport costs-Labour Inspections-Oro. Attaching Letter addressed to Secretary DLIR George R Vaso signed by the accused in his capacity as the Provincial Labour Officer dated 25th November 2013. Re: Request to Conduct Urgent inspections In the Ioma Area. Further attaching; - Cost totalling K33.730.00 - Letter addressed to Secretary DLIR George R. Vaso signed by Hon. Gideon Jagipa dated 25th November 2013 Re: Request for Urgent Investigation by Your Department.	5	107-111	S3
4	Finance Forms 3 and 4 dated 5th December 2013 for the amount of K2,970.00.00 to Copland Gewa being payment for payment of reimbursement for hire car for chair person. Attaching a letter to Mr. Wala Iga signed by the accused in his capacity as the Provincial Labour Officer- Oro RE: Reimbursement for Hire Car for Chair-Person ( Minimum Wages Boarding in Oro Province) dated 29th November 2013.	4	112-115	S4
	Invoice of Gee Hire Cars dated 25th November 2013 Invoice No. GH288
5	Finance Forms 3 and 4 dated 19th February 2014 for the amount of K18,394.00 to Copland Gewa being payment for travelling allowance, accommodation, dinghy, fuel and air fares whilst urgent labour inspection at Tufi-Wanigela for Copland Gewa, Jethro Mathews and Noel Osapa. Attaching - Letter addressed to Secretary DLIR Mr. George Vaso signed by Virgil Bonga, First Secretary DHERST dated 19th February 2014 Re: Request For Urgent Labour Inspections Tufi - Wanigela Oro Province. - Letter addressed to Secretary DLIR Mr. George Vaso signed by the accused in his capacity as Provincial Labour Officer dated 18th February 2014 Re: Request For Urgent Labour Inspections At Tufi – Ijivitari District Further attaching costing totalling K18, 394.00 - Copy of deposit slip dated 20th February 2014 to the account of Copland Gewa Account no. 1001188955 for the amount of K18, 931.00	6	116-121	S5
6	Finance Forms 3 and 4 dated 29th January 2013 for the amount of K13,850 to Trevor Magei being payment for maintenance of new office site (Grass Cutting from Feb to December 2013) Attaching invoice of Trevor Magei billed to Provincial Labour Officer-Popondetta Department of Labour dated 29th January 2013 Invoice no. 001/2013 for the amount of K13,850.00	3	187-189	S6
7	Finance Forms 3 and 4 dated 30th January 2013 for the amount of K4,235.00 to Oswald Tamanabae being payment for vehicle hire for 7 days for PLO & LRC Momase. Attaching invoice from Oswald Tamanabae to Copland Gewa dated 27th January 2013 for Hire Car for 7 days.	3	190-192	S7
8	Finance Forms 3 and 4 dated 30th January 2013 and 5th February 2013 respectively for the amount of K4, 235.00 to Oswald Tamanabae being payment of Hire Cars for PLO LRC Managers. Invoice from Oswald Tamanabae billed to Department of Labour dated 6th February 2013 for the amount of K4,235.00 Invoice No. 002/2013	3	193-195	S8
9	Finance Forms 3 and 4 dated 12th February 2013 for the amount of K4,235.00 Oswald Tamanabae being payment for hire car for PLO/LRC Managers. Attaching Tax Invoice/Statement No.2 dated 8th February 2013 to the department of Labour from Oswald Tamanabae for the amount of K4,235.00.	3	196-198	S9
10	Finance Forms 3 and 4 dated 27th February 2013 for the amount of K4,235.00 to Oswald Tamanabae being payment for Hire Car for PLO/SLO for OSH Workshop 25/3/13 -02/3/13 Attaching Tax Invoice/Statement No.3 dated 26th February to the Department of Labour from Oswald Tamanabae for the amount of K4,235.00.	3	199-201	S10
11	Finance Forms 3 and 4 dated 7th and 13th May 2013 for the amount of K4,235.00 to Oswald Tamanabae being payment of vehicle hire from 6/4-12/04/2013 Attaching Tax Invoice/Statement No.16 dated 7th April 2013 DLIR from Oswald Tamanabae for the amount of K4,235.00.	3	202-204	S11
12	Finance Forms 3 and 4 dated 13th February 2013 for the amount of K2,805.00 to Zacconnie Titipu being payment for vehicle hire to formalise arrangement at the wharf for new PLO vehicle. Attaching Tax Invoice/Statement No.15 dated 8th February 2013 to the Department of Labour from Zacconnie Titipu for the amount of K2,475.00	3	205-207	S12
13	Finance Forms 3 and 4 dated 27th February 2013 for the amount of K13,090.00 Eureka Industry being payment of outstanding Hire cars for PLO-Oro for 2012. Attaching - Tax Invoice/Statement No. 10 undated to the Department of Labour PLO Oro from Eureka Industry Ltd for the amount of K13,090.00 - BSP Statement of Account for Eureka Industry Ltd Business Cheque Account 1001493153 Statement date 28 February 2013.	4	208-211	S13

14	Finance Forms 3 and 4 dated 15th March 2013 for the amount of K5,225.00 to Zacconnie Titipu being payment of vehicle hire for preparations of the commissioning of the vehicle. Attaching Tax Invoice/Statement No.07 dated 15th March 2013 to the Labour Dept. from Zacconnie Titipu for the amount of K5,225.00	3	212-214	S14
15	Finance Forms 3 and 4 dated 15th March 2013 for the amount of K2,090.00 to Charles Moka C/-PLO Popondetta being payment for hire of bus; 4 days in Popondetta; Launch of new PLO vehicle. Attaching Tax Invoice /Statement No.8 dated 15th March 2013 to the Labour Dept. From Mr. Charles Moka for the amount of K2,090.00	3	215-217	S15
16	Finance Forms 3 and 4 dated 15th March 2013 for the amount of K3,740.00 to Charles Moka C/-PLO Popondetta being payment for hire of bus; 4 days in Popondetta; Launch of new PLO vehicle. Attaching Tax Invoice /Statement No.8 dated 15th March 2013 to the Labour Dept. From Mr. Charles Moka for the amount of K3,740.00	3	218-220	S16
17	Finance Forms 3 and 4 dated 18th March 2013 for the amount of K3,960.00 to Birdwing Butterfly Lodge being payment for accommodation for Minister & the Delegation to Popondetta. Attaching Birdwing Butterfly Lodge Pro-Forma Invoice to Department of Labour Invoice No.2013068 dated 15th March 2013 for the amount of K3,960.00	3	221-223	S17
18	Finance Forms 3 and 4 dated 15th & 20th March 2013 for the amount of K3,000.00 to Matara No.8 PTY LTD being for supply of fuel to PLO Oro. Attaching Invoice/Statement No.0019 dated 30th January 2013 to Dept. of Labour & Industrial Relations from Matara No.8 for the amount of K3,000.00	3	224-226	S18
19	Finance Forms 3 and 4 dated 15th and 20th March 2013 for the amount of K1,870.00 to Zaccony Titipu being payment of vehicle hire for 2 days. Attaching Tax Invoice/Statement No.47 undated to Provincial Labour Department from Zaccony Titipu for the amount of K1,870.00	3	227-229	S19

20	Finance Forms 3 and 4 dated 15th and 20th March 2013 respectively for the amount of K3,000.00 to Popondetta Stationary Supplier being payment for officer stationery supplies for 1st quarter 2013. Attaching invoice from Popondetta Stationary Supplies Ltd to the Department of Labour and Industrial Relations Invoice No. 3576 dated 30th January 2013 for the amount of K3,000.00.	3	230-232	S20
21	Finance Forms 3 and 4 dated 20th March 2013 to Birdwing Butterfly Lodge for the amount of K8,470.00 being payment for accommodation Note: paid K3960 thru Cheque No. 7785 only paying balance. Also payment of lunch Buffet on 22.03.2013. Attaching - Invoices from Birdwing Butterfly Lodge Invoice No.2013068 and 2013070 dated 15th March 2013 and 18th March 2013 respectively for the amount of K4, 950.00 and K7,480.00 - Cash Receipts Journal for the Month of March 2013 Accommodation.	5	233-237	S21
22	Finance Forms 3 and 4 dated 21st March 2013 to Cliff Kala for the amount of K1000. 00 being payment for travelling allowance POM/POP/Return 22-26/03/2013	2	238-239	S22
23	Finance Forms 3 and 4 dated 25th March 2013 to Agena Kova for the amount of K1000. 00 to Agena Kova being for grass cutting of office area. Attaching Tax invoice/Statement to the Dept. Of Labour from Mr. Akena Kova for the amount of K1000.00	3	240-242	S23
24	Finance Forms 3 and 4 dated 25th March 2013 payment to Philip Tepi for the amount of K3,300. 00 being payment for fence repair for proposed DLIR office Attaching Tax Invoice/Statement No.23 dated 22nd March 2013 to Dept of Labour from Philp Tepi for the amount of K3,300.00	3	243-245	S24
25	Finance Forms 3 and 4 dated 25th March 2013 payment to Norma Igarobae for the amount of K3,740 being payment or vehicle hire-21-24/3/13, Minister/Delegation. (Assistance)	3	246-248	S25

	Attaching tax Invoice/Statement No.24 to Department of Labour from Norma Igarobae for the amount of K3,740.00
26	Finance Forms 3 and 4 dated 27th March 2013 payment to Oswald Tamanabae for the amount of K3,025.00 being payment for vehicle hire for PLO & LRC Momase. Attaching Tax Invoice/Statement No.16 to Department of Labour from Oswald Tamanabae for the amount of K3,025.00	3	249-251	S26
27	Finance Forms 3 and 4 dated 19th April 2013 payment to Airlines PNG for the amount of K3,431.00 being payment of air fares for Copland, Sipelia, Melva & Michael. Attaching letter to the Secretary Department of Labour and Industrial Relations dated 8th April 2013 signed by the accused RE: Cost For Proposed Inspections For Wanigela-Tufi, Oro Province plus attachment of airfare costing.	5	252-256	S27
28	Finance Forms 3 and 4 dated 9th April 2013 payment to Air Niugini for the amount of K1,267.10 air fares for Sipelia Lemaki Attaching Air Niugini Reservation dated 9th April 2013 for Lemaki Sipelia	3	257-259	S28
29	Finance Forms 3 and 4 dated 9th April 2013 payment to Melva Kubu for the amount of K1,400.00 being payment for travelling allowance Attaching letter dated 8th April 2013 from Copland Gewa to the Secretary of Department of Labour and Industrial Relations. Re: Cost for proposed inspection for Wanigela-Tufi, Oro Province.	4	260-263	S29
30	Finance Forms 3 and 4 dated 9th April 2013 payment to Matara No.8 LTD for the amount of K3,000.00 being payment for fuel supply (Popondetta) Tax Invoice/Statement No. A229744 dated 6th April 2013 to Labour Department Popondetta from Matara No.8 Ltd for the amount of K3,000.00	3	264-266	S30
31	Finance Forms 3 and 4 dated 9th April 2013 payment to Philip Tepi for the amount of K20,350 being payment for replacement of floor mat, fly wire and ceiling of PLO Office Oro.	3	267-269	S31

	Attaching Tax Invoice/Statement No. 17 dated 5th April 2013 to Dept. of Labour from Philip Tepi for the amount of K20,350.00
32	Finance Forms 3 and 4 dated 9th April 2013 for payment to Michael Evoo for the amount of K1,400.0 being payment for travelling allowance Attaching letter dated 8th April 2013 from Copland Gewa to Secretary of Department of Labour and Industrial Relations Re: Cost of proposed inspection of Wanigela-Tufi, Oro Province.	4	270-273	S32
33	Finance Forms 3 and 4 dated 9th April 2013 for payment to Norma Igarobae for the amount of K2,550.00 being payment for outstanding hire during Ministers visit. Attaching Invoice for Payment from Norma Igarobae dated 6th April 2013 to Department of Labour for the amount of K2,550.00	3	274-276	S33
34	Finance Forms 3 and 4 dated 7th and 10th May 2013 for payment to Matara No.8 Pty Ltd the amount of K3,000.00 being payment for fuel supply for PLO Popondetta Attaching Quotation no.20 dated 6th May 2013 to Labour Department from Matara No.8 Pty Ltd for the amount of K3,000.00	3	277-279	S34
35	Finance Forms 3 and 4 dated 16th April 2013 for payment to Oswald Tamanabae for the amount of K4,235.00 being payment for vehicle hire for PLO-Oro	2	280-281	S35
36	Finance Forms 3 and 4 dated 20th May 2013 for payment to Oswald Tamanabae for the amount of K4,235.00 being payment for hire car for PLO-Oro 19-05-13 to 25-05-13 Attaching Tax Invoice/Statement No.12 dated 19th May 2013 to Department of Labour from Oswald Tamanabae for the amount of K4,235.00.	3	282-284	S36
37	Finance Forms 3 and 4 dated 20th May 2013 for payment to Treson Electrical Services for the amount of K12,730.00 being payment for installation of 1x 24,000 BTU Split type air conditioning. Attaching Treson Electrical Services Invoice dated 15th May 2013 to the accused Mr. Copland Gewa.	3	285-287	S37

38	Finance Forms 3 and 4 dated 20th May 2013 for payment to Michael Kilori for the amount of K4,800.00 being payment for CBJ Class Service of new PLO vehicle 280 Attaching Tax Invoice/Statement No. 14 dated 15th April 2013 to the Provincial Labour Officer from Michael Kilori for the amount of K4,800.00	3	288-290	S38
39	Finance Forms 3 and 4 dated 20th May 2013 for payment to Nelson Hauro for the amount of K1,450.00 being payment for fuel supply for PLO-Oro 1vehicle ZGT 038. Attaching Invoice No.04283 to Provincial Labour Department Popondetta from Nelson Hauro for the amount of K1,450.00	3	291-293	S39
40	Finance Forms 3 and 4 dated 25th April 2013 for payment to Oswald Tamanabae for the amount of K4,235.00 being payment for hire car for 7 days for PLO-Oro. Attaching Tax Invoice/Statement No.34 dated 24th April 2013 to DLIR from Oswald Tamanabae for the amount of K4,235.00	3	294-296	S40
41	Finance Forms 3 and 4 dated 30th May 2013 for payment to Advance RZG Computing for the amount of K8,030.00 being payment for services of laptop and desktop & installation of Anti-virus Attaching invoice 1002913 from Advance RZG Computing dated 29th May 2013 for the amount of K8,030.00	3	297-299	S41
42	Finance Forms 3 and 4 dated 31st May 2013 for payment to Oswald Tamanabae for the amount of K2,420.00 being payment for hire car for Copland Gewa. Attaching Tax Invoice/Statement dated 30th May 2013 to Dept. of Labour from Oswald Tamanabae for the amount of K2,420.00	3	300-302	S42
43	Finance Forms 3 and 4 dated 31st May 2013 for payment to Nelson Hauro C/-DLIR for the amount of K2,000.00 being payment for fuel supply to PLO-Popondetta. Attaching Tax Invoice/Statement No.04287 to Provincial Labour Department Popondetta from Nelson Hauro for the amount of K2,000.00	3	303-305	S43

44	Finance Forms 3 and 4 dated 18th June 2013 for payment to Moita Holdings for the amount of K12,000.00 being payment for fumigation for PLO office-Oro. Attaching Tax Invoice/Statement to PLO Oro From Moita Holdings for the amount of K12,000.00	3	306-308	S44
45	Finance forms 3 and 4 dated 25th June 2013 for payment to Nelson Hauro for the amount of K2,000.00 being payment for fuel supply for vehicle rego #ZCY 038 Attaching Invoice from Nelson Hauro dated 14th June 2013 to provincial Labour Dept Popondetta for the amount k2,000.00	3	309-311	S45
46	. Finance Forms 3 and 4 dated 25th June 2013 for payment to David Igarobae for the amount of K4,800.00 being payment for ‘B’ class service od Popondetta PLO vehicle. Attaching - Tax Invoice/statement dated 25th June 2013 to Copland Gewa from David Igarobae for the amount of K4,800.00 - BSP Statement of account for Mr. David Igarobae Kundu Plus Account Statement Date 28th June 2013 Account No.1010026282 - BSP Statement of Account Business Cheque Account, Statement Date 21st June 2013, Account No.10029766973	5	312-316	S46
47	Finance Forms 3 and 4 dated 3rd July 2013 for payment Paycash WPTA for the amount of K16,382.00 being payment for allowance and accommodation, administration cost for urgent inspection in Tufi/ Wanigela Attaching - Break-up of travel costs for urgent trip to Tufi- Oro Province, Wednesday 3rd July 2013 to Tuesday 9th July 2013 for the amount of K16,382.00 - Hand written notation ‘Copland Gewa K 16,382.00’ - Department of Labour and industrial Relations Remittance Advice for the amount of K16,382.00 dated 3rd July 2013, Serial No.009197 - Copy of deposit slip dated 5.7.13 pertaining to the payment of K16,382.00 into the accused personal bank account.	4	317-321	S47
48	Finance Forms 3 and 4 dated 24th and 26th July 2013 for payment to Nelson Hauro for the amount of K1,500.00 being payment for fuel supply for PLO Oro. Attaching Tax Invoice/ Statement dated 14th July 2013 to Provincial Labour Office from Nelson Hauro for the amount of K1,500.00	3	322-324	S48
49	Finance Forms 3 and 4 dated 27th June 2014 for payment to Northern Motel for the amount of K7,315.00 being payment for fuel supply for PLO Oro. Attaching Invoice from Northern Motel Limited Invoice No.085 of 2014 bill to Dept of Labour for the amount of K7,315.00 and dated 23rd June 2014	3	325-327	S49
50	Finance Forms 3 and 4 dated 27thh June 2014 for payment to Northern Motel Ltd for the amount of K35,420.00 being payment for hire car for compliance office inspection. Attaching Invoice from Northern Motel Limited for the amount of K35,420.00	3	328-330	S50
51	Finance Forms 3 and 4 dated 30th September 2013 and 1st October 2013 for payment to Flyn Kunugu for the amount of K 8,470.00 being payment for outstanding hire: 1-7/9/13 & car hire- PLO Oro C. Gewa 29/9-05/10/13 Flyn Kunugu Invoice dated 30th September 2013 to Department of Labour and Industrial Relations from Flyn Kunugu for the amount of K8,470.00	3	331-333	S51
52	Finance Forms 3 and 4 dated 20th November 2013 for payment to Super green Ltd for the amount of K8,000.00 being payment for outstanding payment for vehicle maintenance ZGT-048, PLO Popondetta. Attaching - Letter to the Secretary Department of Labour & Industry. Relations dated 18th November 2013 RE: Request to Fund Outstanding Vehicle Maintenance Account for Super green limited signed by the accused in his capacity as the Provincial Labour Officer - Tax Invoice/Statement No.26 dated 18th November 2013 to the Provincial Labour Office Popondetta from Super Green Ltd for the amount of K8,000.00	4	334-337	S52

53	Finance Forms 3 and 4 dated 26th November 2013 for payment to Northern Motel Ltd for the amount of K10,571.00 being payment for outstanding payment for charges as invoiced-SEC-TEM Attaching Northern Motel Limited Invoice No.104/2013 billed to Dept. of labour for an amount of K10, 571.00	3	338-340	S53
54	Finance Forms 3 and 4 dated 29th November 2013 for payment to Flynn Kunugu for the amount of K2,450.00 being payment for vehicle hire PLO-Popondetta/Officers 25-30/11/13 Attaching Invoice from Flynn Kunugu, Invoice no.003/2013 dated 29th November 2013 to Department of Labour for the amount of K2,450.00. Department of Labour and Industrial Relations Remittance Advice dated 29th November 2013, Serial No.010021 for the amount of K2,450.00.	4	341-344	S54
55	Finance Forms 3 and 4 dated 28th January 2014 for payment to ACL Hire Car for the sum of K25,000.00 being payment for outstanding vehicle hire 2012/2013 PLO Oro. Attaching -Hand written notations -Central Supply and Tenders Board Short Form Contract between ACL Hire Cars and DLIR for the amount of K25,000.00	4	345-348	S55
56	Finance Forms 3 and 4 dated 28th March 2014 for payment to Popondetta Stationary Suppliers for the amount of K3,000.00 being payment for stationaries for PLO-Oro Office Attaching Popondetta stationary suppliers Quotation No.5961 dated 3rd March 2014 to Labour Department for the amount of K3,000.00	3	349-351	S56
57	Finance Forms 3 and 4 dated 11th April 2014 for payment to Super Green Ltd for the amount of K9,850.00 being payment for vehicle services; ZGT 40, PLO Popondetta, replacement of cheque#9719 Attaching Finance Form 3 and 4 dated 11th April 2014 for payment to Super Green Ltd for the amount of K9,850.00.	3	352-354	S57

	[Note: There are two FF4s relating to payment of K9,850.00. Reference number 55841 and 55837 respectively.]
58	Finance Forms 3 and 4 dated 28th and 29th May 2014 for payment to Flynn Kunugu for the amount of K5.250.00 being payment for hire cars for Copland Gewa approval by Secretary. Attaching - Invoice to Department of Labour dated 28th May 2014 for the amount of K5,250.00 - Letter from the Secretary DLIR Geroge Vaso to Acting Secretary DLIR dated 27th May 2014 Re: Approval Of Extended Stay-Mr. Copeland Gewa Provincial Labour Office Oro Province (28th May-18th June 2014)	4	355-358	S58
59	Finance Forms 3 and 4 dated 18th June 2013 for payment to Flynn Kunugu for the amount of K2,750.00 being payment for vehicle hire for... Attaching - Tax Invoice/Statement dated 17th June 2013 to Labour Department from Flynn Kunugu for the amount of K2, 750.00	3	359-361	S59
60	Finance Forms 3 and 4 dated 27th June 2014 for payment to Airlines PNG Ltd for the amount of K6,358.53 being payment for airline tickets fir 3x Headquarters officers x2 PLOs. Attaching flight itinerary for Sasangi, Maipakai, Mado, Gewa and Kibu.	3	372-374	S60
61	Finance Forms 3 and 4 dated 27th June 2014 for paymaster-DLIR for the amount of K25,000.00 being payment for administration cost compliance inspection-Oro 6/7-28/7/14.	2	375-376	S61
62	Finance Forms 3 and 4 dated 26th and 27th June 2014 for payment to Super Green Ltd for the amount of K8,646.00. Attaching Invoice 300/2014 dated 23rd June 2014 from Super Green to Provincial Labour Officer-Popondetta Dept. of Labour for the amount of K8,646.00.	3	377-379	S62
63	Finance Forms 3 and 4 dated 21st July 2014 for payment to Seanelle Ltd for the amount of K7,500.00 being payment for accommodation for officers on combine inspection in Tufi. Tufi Resort Group Tax Invoice to Department of Labour PNG for the amount of K7,500.00.	3	380-382	S63
64	Finance Forms 3 and 4 dated 7th and 8th August 2014 for payment to Andrew Musilani for the amount of K4,600.00 being payment for travelling allowance for Mr. Andrew Musilani travel to Oro Province for inspection-6 July 2014. Attaching - Memo to Mr. Pius Lahari for Andrew Nusilani, Screening Officer dated 28th July 2014 Re: Unpaid Travel Allowances for Mr. Andrew Nusilani For Oro Province Inspections Sunday 6th July to Monday 28th July 2014. - Airlines PNG Ticket for Mr. Andrew Nusilani issued on 5th July 2014.	4	383-386	S64
65	Finance Forms 3 and 4 dated 19th November 2014 for payment to Bents Rent A Car for the amount of K15,800.00 being payment for hire vehicle. Attaching Bens A Car Invoice 19112014 dated 19th November 2014 to Department of Labour & Industrial Relations for the amount of K15,800.00	3	387-389	S65
66	. Letter from Department of Labour & Industrial Relations to the Manager Bank of South Pacific-Popondetta dated 10th December 2014 Re: Confirmation Letter-4TY_ Cheque# 40808-K18,682.00 Attaching - Department of Industrial Relations Remittance advice dated 9th December 2014 Serial No. 038821 for the amount of K18,682.00 - Cheques payment register - Company Extract of 4TY Limited as at 19 January 2017.	5	390-394	S66
67	Finance Forms 3 and 4 dated 29th November 2013 for payment to Hideaway Hotel for the amount of K13,240.00 being payment for accommodation payment for Copland Gewa, Jethro Matthews, Nancy Barareba 24-0/11/13. Attaching - Hideaway Hotel Tax Invoice dated 27th November 2013 to Dept of Labour for the amount of K13, 240.00 and VAT Invoice. - Department of Labour & Industrial Relations Remittance Advice dated 29th November 2013 Serial No.010019 for the amount of K13, 240. - Work Permit Trust Account Payment Summary	7	395-401	S67
68	Finance Forms 3 and 4 dated 30th September and 2nd October 2013 for payment to Hideaway Hotel for the amount of K10,670.00 being payment for outstanding accounts for accommodation C. Gewa/David Niawale 20/9-8/10/13 Attaching Hideaway Hotel Tax Invoice dated 30th September 2013 to Labour Department for the amount of K10,670.00	3	409-411	S68
69	Finance Forms 3 and 4 dated 31st October 2013 for payment to Hideaway Hotel for the amount of K13,800 being payment for outstanding invoice-accommodation for Bafeng, Ottio and Ninawale. Attaching Hideaway Hotel Tax Invoice dated 21st October 2013 to Labour Department for the amount of K13,800.00	3	412-414	S69
70	Finance Forms 3 and 4 dated 12th August 2014 for payment to Computing & Communication Institute of PNG for the amount of K290,000.00 being payment for Computing and Communication Institute of PNG. Attaching - Computing & Communication Institute of PNG Invoice to Department of Labour & Industrial Relations Invoice No. LI 2014-01082014 for the amount of K290,000.00 - Letter to the Director Computing & Communication Institute of Papua New Guinea dated 4th august 2014 from George R. Vaso Re: Engagement For Feasibility Study On Internet With Control and Security Policies - Short contract between DLIR and Computing & Communication Institute of PNG.	5	441-445	S70
71	Finance Forms 3 and 4 dated 8th October 2014 for payment to Computing & Communication Institute of PNG for the amount of K495,000.00 being payment for implementation of DLIR net audit recommendation Attaching	5	446-450	S71

	- Letter from the Chief Executive Officer of Computing & Communication Institute of PNG to Secretary for DLIR Geroge Vaso dated 14th August 2014 Re: Implementation of DLIR*. net audit Recommendation - Letter from the Chief Executive Officer of Computing & Communication Institute of PNG to Secretary for DLIR Geroge Vaso dated 7th October 2014 Re: Implementation of DLIR*. net audit Recommendation - Computing & Communication Institute of Papua New Guinea Invoice for the amount of K495,000.00 to the Department of Labour & Industrial Relations
72	Finance Forms 3 and 4 dated 20th October 2014 to Computing & Communication Institute of PNG for an amount of K87,178.52 being for payment to Computing &Communication Institution of PNG 1st DLIR Net recommendation and traffic monitoring tool fees. Attaching Computing & Communication Institute of PNG Invoice to the Department of Labour & Industrial Relations Invoice No.LI01102014 for the amount of K87,178.52	3	451-453	S72
73	Finance Forms 3 and 4 dated 26th October 2014 for payment to Computing & Communication Institute of PNG for the amount of K485,786.25 being payment for 1st feasibility study for IT rollout for Provinces-DLIR Attaching - Letter from the CEO of Computing & Communication Institute of PNG to Mr. Geroge Vaso Re: Letter of Acceptance To Conduct ICT Feasibility Study in All Provincial Labour Offices dated 28th October 2014. - Letter from the from LRC Managers to George Vaso, DLIR Secretary. Re: immediate implementation of presentation of resolutions the Madang Labour Conference (20th-24th October 2014) - Computing & Communication Institute of PNG Invoice for the amount of K485,786.25 to the Department of Labour & Industrial Relation - Letter dated 28th October 2014 from Alpesh Surani, CEO CCIPNG to George Vaso, DLIR Secretary. - Department of Labour & Industrial Relations Remittance Advice dated 28th October 2014 Serial No.011127 for the amount of K485,786.25 - Work Permit Trust Account payment summary.	9	454-462	S73
74	Amendment to the Work Permit Trust Account (WPTA) Instrument (Department of Labour & Industrial Relations) dated 11th September 2013.	3	88-90	S74
75	Letter from Dr. Ken Ngangan CMA CPA to Secretary Department of Labor & Industrial Relations George R. Vaso dated 13th September 2013 Re: Work Permit Trust Account Instrument (Amended)	1	91	S75
76	Letter from BSP Dec. Inspector Lucas Muka dated 23rd February 2018 RE: Search Warrant No.293 of 2017-Copland Gewa- Account No.1001158955 Enclosed: - Bank Statements from 30.06.2011 to 31.12.2014 - Customer Record Card for account.	34	122-155	S76
77	Letter from BSP Dec. Chief Supt. Matthew Damaru dated 24th October 2018 RE: Search Warrant No.293 of 2017-Copland Gewa- Account No.1001158955 Enclosed transactions vouchers for payments from WPTA to accused personal bank account.	31	156-186	S77
78	Letter from BSP Dec. Inspector Lucas Muka dated 18th October 2017 Re: Search Warrant No.35 of 2017- Work Permit Trust Account- Account No.1001037437 Enclosed attachments: - Customer Record Card for Work Permit Trust Account. - Bank Statements printed from 01.01.2012 to 31.12.2016.	23	415-437	S78
79	Record of Interview of the Accused conducted on 1st August 2018.	10	76-85	S79

9.The following persons were called by the State to give oral evidence. They are firstly,
Brian Yaruso

Brian Yaruso, this witness was the caretaker of Northern Motel Ltd, he was called on the 31^st of July 2024 and he testified that services were rendered by his employer to the Department of Labour and Industrial Relations and payment was according. He was shown the state Exhibit s S49, S50 & S53 to which he confirmed as payments from the Department of Labour and Industrial Relations for services rendered.

Raymond Lim

The next witness was Mr. Raymond Lim, he is the Managing Director of Eureka Industry Ltd. He was called and he stated that services were rendered by his company to the Department of Labour and Industrial Relations and that payment was made accordingly. He was shown the state Exhibit S13, and he confirmed that this was the payment for the hire car services he had rendered to the accused.

Philip Tepi

The next witness was Philip Tepi. This witness used to be a nurse formerly employed by the Popondetta General Hospital for some years and has retired since. At the material time he was and is a small businessman, he was called by the State and he gave evidence that at the material time the accused borrowed some money from his wife to purchase a ticket to Port Moresby. To repay, he asked the witness Philip Tepi to provide his bank count details which Philip Tepi did. The witness further gave evidence that some days later he checked his bank account, and he saw a large amount of money credited to his bank account, about K20,000.

He was surprised and he called the accused to which he was advised by the accused to withdraw the money and remove what was owed to his wife and give the rest to the accused. The accused instructed the witness to travel to Port Moresby and withdraw the money and give it to him. The witness did as he was instructed. He further gave evidence that the only payment owed by the accused was a payment of K2000 owed to his wife. The witness was shown Exhibit S31 which is the payment made to Philip Tepi in the sum of K20,350 being payment for replacement of floor mat, fly wire and ceiling of Provincial Labour Office in Oro Province. This witness denied being engaged by the Department of Labour and Industrial Relations to do any minor office works at the office here in Popondetta. The witness also denied rendering services and receiving a payment of K3,300 shown in Exhibit S24 that was made to him by the Department of Labour and Industrial Relations for doing a fence repair work for the proposed Department of Labour and Industrial Relations office. He further denied having a postal address as described in Exhibit S24 being PO Box 384, Popondetta or any postal address for that matter.

Richard Pangiwen

The next witness called by the State was Richard Pangiwan. This witness was employed by the Department of Labour and Industrial Relations as an auditor. He was tasked to conduct the audit examinations into the allegations of misappropriation of monies drawn from the Work Permit Trust Account. The copy of the Trust Instrument pertaining to the Work Permit Trust Account and a copy of a letter dated 13^th September 2013 from Dr. Ken Ngangan to George R. Vaso were tendered into evidence through this witness and was marked as State Exhibit S74 and S75 respectively. This witness could not produce the copy of the Audit Report at trial. He explained that he was suspended and did not have access to the office to obtain a copy. He stated that a copy of the Audit Report was given to the Investigator during investigations.

Asher Waffi

The next witness called by the State is Asher Waffi. This is the legal officer of the Bank South Pacific Financial Group Ltd. He is the replacement witness of Gideon Alowa who is the compliance officer who produced the bank evidence at the material time. This witness was called to identify and produce into evidence state Exhibits S76, S77 and S78 which are copies of the bank statement of the accused’s personal bank account and the copies of payment vouchers pertaining to payments made from the Work Permit Trust Account to the accused’s personal account and the copies of the Work Permit Trust Account bank statement respectively.

Consy Aiva

The next witness is Consy Aiva. This witness holds the rank of Policewoman Sergent attached to the National Fraud and Anti-corruption Directorate and is the investigating officer in this case. She gave evidence in relation to her investigation. The record of interview was tendered through this witness and was marked as Exhibit S79. The witness stated that she did obtain the audit report during investigations but did not bring it to the court for trial purposes.

Summary of Prosecution submission on evidence.
10. The State submission in relation to the evidence and the elements of the charge. The State submitted that the bank statement of the accused identifies him as the person using funds drawn from the Work Permit Trust Account.
11. They further submitted in relation to the element of dishonest application to his own use and referred the court to Exhibits S76 and S77. The State further submitted that the accused was aware that the monies as portrayed in Exhibits S76 and S77 were drawn from the trust account because he personally deposited the cheques into his personal account. The cheques had the account number of the trust account at the bottom of these cheques.

12. In relation to the element of property, The State submitted that the property is the money in the sum of K969,711.80 and further submitted that this property belonged to The State as per Exhibit S74. The State finally submitted that the evidence of the State witnesses was credible and that the evidence is supported by documentary evidence. The bank evidence reveals that the accused dishonestly applied K214,443.20 to his own use and to the use of others. The difference of K755,268.60 cannot be proven to have been dishonestly applied by the accused.

13. In conclusion, The State submitted that the evidence presented in this court was overwhelming against the accused and that this court should safely find a verdict of guilty.

Summary of Defence Submission on evidence
14. The defence called two witnesses, the accused and one other, Leki Naisoro. The defence also relied on documentary evidence Exhibit D1 which was tendered through during the defence case that was the complaint made to the Police regarding certain mismanagement of public funds by the then Secretary of the Department of Labour and Industrial Relations, Mary Morola. Exhibit D1 comprises of a letter by the accused to the Police regarding the issuing of a contract worth K296,598.39 to Siale, Ta Contractors. Also, the payment vouchers which was attached to that letter.

15. The defence also relied on Exhibit D2 which is the Public Service Commission decision dated 22^nd June 2018 which reinstated the accused after he was terminated from the Public Service. In analysing the evidence, the defence submitted that the state’s evidence which are contained mainly under Exhibits S1 to S76 should be critically analysed and categorised into several parts.

16. Mr. Napu submitted that the transactions which took place between service providers and the Department of Labour and Industrial Relations should be carefully analysed. Mr. Napu submitted that the accused has no part in it, it is safe to say and asked the court to discard those transactions forming part of the evidence. Mr. Napu further submitted that they will look at cases where service was provided by service providers and the Department of Labour and Industrial Relations paid for the services directly. He submitted, in those instances representing bulk of the accounts the facts are not in dispute and therefore evidence as well.

17. Mr. Napu relied on the relevant transactions and submitted that a number of transactions which were considered irrelevant because they are irrelevant for the purposes of this particular matter. These are for the reasons that the transaction takes place between the service providers and the main department which is in Port Moresby-the headquarters. He submitted, even if the payments are drawn out of the Work Permit Trust Account, the accused is not a signatory nor a trustee to the Work Permit Trust Account. The reason for which those transactions with no relevance to the accused person was brought into this court file and amounted as facts forming allegations against his client in itself supports the proposition that the whole proceeding is maliciously made out against the accused by the then Secretary Mary Morola and for reasons already given.

18.He further submitted that from the exhibits tendered they will pick out those transactions that has no involvement of the accused at all.

19. The defence then went on to make the following submissions.

Firstly, in relation to Exhibits S7, S8, S9, S10, S11, S26, S35, S36, S40 and S42. They submitted that these are transaction involving Oswald Tamanabae. Leasing out hire vehicle to Department of Labour and Industrial Relations in Port Moresby. He is a Port Moresby based service provider and all the transactions according to evidence given by the accused, he is a Pastor who has a direct working relationship with the Department through a senior officer-Aiva Ume. All of these transactions take place in Port Moresby directly between Oswald Tamanabe and the Department of Labour and Industrial Relations in Port Moresby. It does not tie down the accused in any way. All this information must be struck out. That was the defence submission.

In relation to Exhibits S15 and S21, Mr. Napu submitted that these are cases involving transactions between Birdwing Butterfly lodge and the Department of Labour and Industrial Relations directly. This involves accommodation and hire car and other services rendered by the Lodge to the Department. The accused does not play a role in any way in between and therefore the facts are irrelevant for this court to rely on.

The defence further submitted in relation to the Exhibit S28 that it is a payment to Air Niugini in the sum of K1,267.10 made by the Department of Labour and Industrial Relations for Lemeki Sipelia air fares. This payment was made directly to the head office in Port Moresby and this has nothing to do with the accused or the Provincial Labor office in Oro Province. The defence further submitted that the evidence is irrelevant and should not be relied on by this court.

In relation to Exhibit S29, Mr. Napu for the accused submitted that it is a payment of travelling allowances made to Melva Kubu in the sum of K1,400 by the Department of Labour and Industrial Relations head office for duty travel to Tufi-Wanigela for inspections. They submitted that this payment has no relevance to the accused, and the court should not rely on this evidence.

In relation to Exhibits S49, S50 and S53, they submitted that these are transactions done between Northern Motel Ltd and the Department of Labour and Industrial Relations. They further submitted that the transactions were made directly between them to the service provider and the accused has no part to play in transaction. The defence further asked the court not to rely on that evidence.

In relation to Exhibits S51, S54 and S58 which involves transactions done between Flynn Kunungu and the Department of Labour and Industrial Relations. Flynn Kunungu is a hire car operator based in Port Moresby dealing directly with the Department of Labour and Industrial Relations and all of these transactions have noting to do with the accused and that the evidence should not be relied on.

Further, Mr. Napu submitted in relation to Exhibit S59, they submitted that it comprises a letter dated 2^nd July 2014 engaging a David Igarobae of Mamba Corporate Ltd, Popondetta Oro Province for the architectural design of the Provincial Labour Office. Two payments were made to him, one in the sum of K172,480 dated 10^th July 2014, another in the sum of K58, 624 dated 9^th December 2014. These are payment agreements made directly between the Department of Labour and Industrial Relations to Mr. Igarobae. Mr. Napu submitted that the evidence does not implicate his client and that this evidence should be rejected.

In relation to the Exhibit S64, Mr. Napu submitted that this is a payment made for the inspection to be conducted by Mr. Pius Lahari and Mr. Andrew Nusilani. These are compliance officers from the Department of Labour and Industrial Relations head office in Port Moresby. The payments were made directly by the Labour Office to the service provider. This evidence does not implicate the accused and the defence asked that this court should not rely on that evidence.

Exhibit S65 is a payment of K15,800 made to Bens Rent a Car dated 19^th November 2014 by the Department of Labour. Bens Rent a Car operates in Port Moresby and the services were procured by the Department of Labour head office in Port Moresby. The defence submitted that this evidence does not implicate their client and that the court should reject the evidence.

Exhibits S67, S68 and S69, the defence submitted that these exhibits represent various payments made to Hideaway Hotel in Port Moresby. This hotel accommodation and hospitality services represents transactions done directly between the Hotel and the Department of Labour head office. They further submitted that the accused is not implicated in any way by this evidence and that this evidence should be rejected.

Mr. Napu further submitted in relation to Exhibit S70, S71, S72 and S73. These evidence represents payments in the sum of K290,000.00, K495,000.00, K87,178.52 and K485,786.20 respectively made to Computing and Communication Institute of PNG by the Department of Labour pursuant to an agreement made between the company and the Department of Labour and Industrial Relations. The whole scheme of things regarding the transactions they submitted involved the evidence tendered does not implicate their client and accordingly the court should not rely on this evidence.

Finally, Mr. Napu submitted that the 31 Exhibits containing a number of transactions together with payments has no bearing on their client and all of those transactions relate to direct dealings between the main service providers and the Department of Labour and Industrial Relations head office. The defence submitted that all that evidence should be rejected by this court.

20. In relation to other services rendered to the Provincial Labour Office in Oro Province, the defence made the following submissions;

Exhibit S1 is fuel reimbursement,

Exhibit S6 is payment to Trevor Magei for maintenance and landscaping PL office in the sum of K13,850.00.

Exhibit S12 are 2 payments for hire car to Zacconi Titipu in the aggregate sum of K5,300.00 or thereof,

Exhibit S13 is the sum of K13,090.00 paid to Eureka Industries Ltd for outstanding hire car,

Exhibit S14 is payment to Zacconi Titipu by DLIR in the sum of K5,225.00,

Exhibit S16 is payment to Charles Moka for lease of vehicle to PL office, in the sum of K3,740.00,

Exhibit S18 is payment of K30,000.00 from DLIR to Matara No.8,

Exhibit S19 is payment DLIR to Zacconi Titipu for vehicle hire in the sum of K1,870.00,

Exhibit S20 is payment to Popondetta Stationery Supplies Ltd for supplies of stationery to PL office in the sum of K3,000.00.

Exhibit S22 is payment of travel allowance to Cliff Kala from DLIR in the sum of K1,000.00,

Exhibit S23 is payment of K1,000.00 to Agena Kova for grass cutting at the PL office.

Exhibit S24 is payment to Philip Tepi for repair and maintenance work at PL office at K3,300.00,

Exhibit S25 is payment to Norma Igarobae for vehicle hire for the Minister for Labor being a sum of K3,740.00.

Exhibit S27 is Airlines PNG for inspections at Wanigela-Tufi at K3,431.00,

Exhibit S30 is a sum of K3,000.00 paid to Matara No.8 Ltd for supply of fuel. The payment was made directly from DLIR to the supplier.

Exhibit S31 is payment of K20,350.00 to Philip Tepi for replacement of floor mat, fly wire and ceiling of PL office Oro pursuant to a tax invoice dated 5th of April 2013. Payment was made directly from DLIR Head office to Philip Tepi.

Exhibit S32 is a payment of K1,400.00 for travelling allowance for Michael Evoo, a Policeman for the inspection exercise at Wanigela-Tufi. Payment was made directly from DLIR to Michael Evoo.

Exhibit S33 is a payment of hire car for the Minister’s use at K2,550.00, payment made directly from DLIR to Norma Igarobae.

Exhibit S34 is a payment of K3,000.00 made directly to Matara No.8 Ltd from DLIR, for supply of fuel to PL office-Oro.

Exhibit S37 is payment to Treson Electrical Services from DLIR in the sum of K12,730.00 for installation of air conditioning unit in the PL office-Oro.

Exhibit S38 is a sum of K4,800.00 paid by the DLIR directly to Michael Kilori for service of PL office vehicle Oro.

Exhibit S39 is a payment of K1,450.00 to Nelson Hauro for payment of fuel supply to PL office-Oro.

Exhibit S41 is a payment of K8,030.00 from DLIR directly to RZG Computing for lap tops and desk top installations and anti-virus treatment at PL office-Oro.

Exhibit S43 is a payment of K2,000.00 from DLIR directly to Nelson Hauro for supply of fuel to PL office-Oro.

Exhibit S44 is payment of K12,000.00 paid directly by DLIR Head office to Moita Holdings for fumigation services.

Exhibit S45 is a sum of K2,000.00 paid to Nelson Hauro by DLIR directly to the service provider, for supplying fuel to the PL office-Oro.

Exhibit S46 is a sum of K4,800.00 paid to David Igarobae for service of vehicle for the PL office-Oro. Payment made directly from DLIR to David Igarobae.

Exhibit S48 is a sum of K1,500.00 paid to Nelson Hauro directly from DLIR Head office to the service provider for supply of fuel to the PL office-Oro.

Exhibit S52 is a payment of K8,000.00 to Super Green Ltd for vehicle maintenance for PL office-Oro. Payment was made directly from DLIR to Super Green Ltd.

Exhibit S55 is a payment of K25,000.00 to ACL Hire Cars from DLIR office for leasing of hire vehicle to Oro Provincial Labor office.

Exhibit S56 is a payment of K3,000.00 from DLIR to Popondetta Stationery Supplies for supplying of stationery to PL office-Oro.

Exhibit S57 is a payment of K9,850.00 paid by DLIR to Super Green Ltd for service of PL office vehicle.

Exhibit S60 is a payment to Airlines PNG Ltd in the sum of K6,358.53 paid directly by DLIR to Airlines PNG Ltd.

Exhibit S62 is a sum of K8,646.00 paid directly by DLIR to Super Green Ltd for hire of vehicles to support compliance officer’s visit.

Exhibit S63 is a sum of K7,500.00 for housing officers from DLIR for inspections in Tufi area. Payment made directly from DLIR to service provider.

Exhibit S66 is a payment to 4TY Ltd in the sum of K18,682.00 for excavating and construction of drainage and back-filling for the proposed site of new staff houses. Payment was made directly from DLIR to service provider.

21. Mr. Napu for the accused submitted that all the above transactions, the payments, were made directly into the accounts of the service providers after the requisitions were properly raised and after the services were rendered.

22. Defence submitted that the Trust Instrument which guides the expenditure of the monies in the Work Permit Trust Account under clause 8 prescribes the Secretary of the department of Labour and Industrial Relations as the Trustee and by virtue of clause 6 of that Trust Instrument the Secretary of the depart of Labour and Industrial Relations was the person authorised to appropriate the funds in the Trust Account. The Secretary was the Section 32 Officer.

23. Defence further submitted that there is no evidence that the money drawn from the Trust Account were paid to the service providers through the accused.

24. The State witness Richard Pangwiyen basically confirmed that in all of the instances, that claims were raised upon invoices being furnished, and payments were made. Having said that, he did not say that the payments were made to the Accused at any stage. In the absence of any assertions to the contrary, it was not open for the Court to deduce inferences, that the accused had a hand in the transactions in dictating the course of the payments, or diverting the course of the payments. There is no evidence to that effect and therefore is unsafe to make any such finding based on inferences alone. Defence relied on the case of Jimmy Maladina v. State (2016) SC1495.

25. The finding in Jimmy Maladina v. State (supra) states that, it is unsafe to make a finding of guilt on the back of both circumstantial evidences and inferences drawn from facts and logic.
    
26. Defence relied on the case of Paul Tiensten v. State (2014) SC1468, and submitted that dishonesty is proven when the FF3 and FF4 was raised speedily, to avoid detection of any setbacks. They argued that in the present case the Accused, is based in Popondetta and he has no control, nor influence to dictate the raising of the requisition, nor payments. Dishonesty cannot be proven at all.
    
27. Mr. Napu in summary submitted that the present case, the State did not prove by way of evidence that their client had applied the subject monies from the Work Permit Trust Account to any other purposes not intended by the trust instrument or guidelines.
    
28. They further submitted that pursuant to the case of The State v Robert Sandra & ors (2019) N8296 at paragraph 59, they cited and quoted His Honour Yagi, J as follows:
    

“It is tried law that on a trial the onus and burden of proof lies with the State. The State must discharge the burden on the required standard. The standard is proof beyond all reasonable doubt.”

29. Mr. Napu went on to make submissions in relation to payments made directly to the accused. They submitted in relation to Exhibit S2 which is a payment of K17,500 paid to the accused. This was a payment made to the accused to apply these funds for the purposes of the official launching of the new Labour Office vehicle. The accused in his evidence said he applied the money to what it was intended for and had submitted an acquittal to the Department of Labour and Industrial Relations. They submitted that their client had provided the acquittal report, and it should be part of the audit report. The defence further went on to say that the audit report did not raise any red flag and so the accused went on to say that he was administratively charged and dismissed from the office also on the same grounds/allegations and when the Public Service Commission deliberated on his case, the audit report was furnished and he was exonerated from the allegations and reinstated. They relied on Exhibit D2 to make that submission. The defence also cited the case of The State v Ati Worbiro (No.1) (2016) N6398 to support their argument. They submitted that the prosecution did not bring the audit report into court to prove otherwise besides they have not adduced evidence from independent witnesses who will dispute the application of the above monies.
    
30. In relation to the state Exhibit S3 Mr. Napu submitted that it represents a payment of K33,730 made to the accused for inspection in the Yama/Gaipa area. They submitted that the accused was paid a cashable cheque for the purpose of the intended work. The accused gave evidence that he applied the money to where it was intended for. They further submitted that the acquittals form part of the audit report and there was no red flag being raised by the auditors or even the Secretary. They submitted that the State witness Richard Pangiwan who was brought to court was not an employee of the department, and he came and gave evidence of his opinions without basing his evidence on his audit report. Mr. Napu submitted that the evidence of Richard Pangiwan should be rejected and not be relied on by this court.
    
31. Mr. Napu also submitted relying on the case of The State v Ati Worbiro (supra) and submitted that the burden and standard of proof required under the criminal standard was applied in that the prosecution were able to establish that some portion of the monies intended for the people were applied to the personal use and the use of another in the sum of K350,000 out of the total 7.6 million kina.
    
32. Mr. Napu further submitted that in the present case the prosecution did not established that the accused did not apply the money to its intended purposes as per the guidelines under the trust instrument. They relied on the case of Maladina v The State and submitted that it is unsafe to convict on circumstantial evidence, further submitted that this court should reject that evidence.
    
33. Their client in relation to the payment made withdrawals made in Fiji further submitted that their client was required by the Secretary to attend the International meeting for the International Labour Organization in Fiji by the secretary and that he attended the meeting and on his return he accomplished the Yama/Gaipa inspections and furnished an acquittal of the funds annexed to the main report, however the prosecutions through their witness Richard Wangiwan who claimed to have compiled the audit report did not bring the audit report to this court. All in all, the defence submitted that the evidence of The State is not sufficient and lacking in weight to prove their case beyond that required standard which is beyond reasonable doubt.
    
34. Mr. Napu asked this court to find his client not guilty.
    

Analysis of Evidence

35. In summary, the following evidence is before me.
    
36. The State witness whose evidence is not helpful to the States case except that of the witness Philip Tepi. The other witnesses namely Brian Yaruso and Raymond Lim, they confirm the payment as genuine payments. Apart from these witnesses, the State did not call evidence from other service providers to assist this court. The documentary evidence by the State as per the exhibit list establishes the following general facts:
    
37. Firstly, the Secretary of the Department of Labour and Industrial relations is the section 32 officer and most of the procurement procedures are being carried out at the head office in Port Moresby this happened upon the service providers providing invoices and supporting documents of the services they have provided. The invoices appear to be faulty but there was no audit report from the experts to confirm or deny that they were faulty and still the Secretary of the Department of Labour and Industrial Relations went on to approve the claims for payment. There is no evidence of conspiracy between the accused and the Secretary
    
38. Secondly, the audit report was not part of the court deposition hence they did not try to adduce the audit report during the trial. This was a long outstanding matter dating back to 2019. Investigators and the prosecution made no attempt to have the audit report as part of the court file before the trial commenced. The witness Richard Pangiwan was called to give evidence of the audit examinations which he had conducted but his evidence cannot be supported by the audit report. Richard Pangiwan gave evidence that he was subsequently suspended and could not access the audit report, but he said a copy was given to the investigating officer.
    
39. This court also find on the evidence before it that the Police investigators evidence was that she did not incorporate the audit report into the case file and did not bring it to the court during the trial.
    
40. Thirdly, there is evidence that the accused was initially terminated from office and later Public Services Commission reinstated him as per Exhibit D2
    
41. This court also finds that all the allegations which are the subject of these proceedings were the same ones which the former Secretary Mary Morola relied on to terminate the accused, and the Public Services Commission reinstated the accused as per Exhibit D2.
    
42. In a nutshell, all these serious allegations lack credible evidence such as investigation reports, acquittals etc, except charge number 7 as per Exhibit D2, which the Public Services Commission deliberated on relate to official corruption where the accused was found by the Commission to solicit cash and kind in Popondetta in the context of his duties for personal use. The Commission found that, that, particular charge was not serious enough to warrant a termination. Also, on the evidence before this court, I find that prior to the accused being terminated by the former Secretary to the Department of Labour and Industrial Relations, Maray Morola, the accused complained to the Police to investigate Mary Morola for possible fraud allegations against the Secretary. This is evidence in Exhibit D1.
    
43. I also find that many persons are implicated, and these persons were not charged. For example, Oswald Tamanabae. The evidence relating to Oswald Tamanabae was part of the court file used to prosecute the accused. Those evidence show that the person Oswald Tamanabae’s vehicle was hired from time to time by the officers in Port Moresby and payments were made by the head office in Port Moresby. Invoices that appeared faulty submitted to the head office in Port Moresby for hire of his vehicle in Port Moresby, the payment was made to Oswald Tamanabae. Did Oswald Tamanabae own a registered Hire Car Company? The question arises as to was it a selective investigation? And secondly does this amount to malicious prosecution? This is a good case of fraud and corruption involving many, many people from the top down to the service providers. But it was not properly investigated and prosecuted.
    
44. I make these findings because of the above evidence.
    1. Faulty invoices which initiate the claims to be raised and processed. Example: one service provider has invoices that look completely different to each other from time to time.
    2. These invoices, they were submitted without supporting documents and that is a complete breach of the Public Finance Management Act principles and guidelines.
    3. The claims just went through easily and the Secretary being the Section 32 Officer authorised those payments.
    4. No evidence of acquittal of such monies were provided to this court.
    5. The investigators failed to have the audit report being part of the case file.
    6. The Public Prosecutor failed to check the state of evidence on the file and remove that which does not implicate the accused and proceed with those that implicate the accused. Everything was brought before this court to go through the evidence and find those that implicate the accused.
    7. The State submitted that this court can find the accused guilty of a lesser amount from that alleged on the indictment, which is K214,443.20.
    8. The investigators only charged the accused and left out the most important evidence which is the audit report.
    9. The prosecution relied on the evidence which is clearly do not implicate the accused in any way to use it to prosecute the accused. Why did they do that?
    10. I find that there is evidence of possible selective investigation.
    11. I also find that there is evidence of possible malicious prosecution of the accused.
    12. I also find that there is evidence of motive on the part of complainants to lay charges against the accused especially the former Secretary Mary Morola. I rely on the Exhibit D1.
    13. By law this court can find the accused guilty of a lesser amount established by the evidence.

The Law

45. The charge of misappropriation is brought under Section 383A (1) (a) of the Criminal Code Act which reads as follows:

383A. MISAPPROPRIATION OF PROPERTY.

(1) A person who dishonestly applies to his own use or to the use of another person –

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:

(a) where the offender is a director of a company and the property dishonestly applied is company property; or
(b) where the offender is an employee and the property dishonestly applied is the property of his employer; or
(c) where the property dishonestly applied was subject to a trust, direction or condition; or
(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

46. Here I rely on the cases of Brian Kindilawi v The State (1987) PNGLR 183 where the court held that whether an accused person has a particular state of mind is a question of fact which has to be decided by the jury when there is a trial on indictment.
    
47. The court further in the case of The State v Gabriel Ramoi (1993) PNGLR 390, 392. His Honour Salika, J (as he then was) held in that case and I quote,

“The word dishonestly in Section 383A of the Criminal Code relates only to the state of mind to the person who does the act which amounts to misappropriation. The state of mind when a person applies property is a question of fact for the trial judge to determine on all of the facts presented before him and when the judge considers the facts on how the property was applied, he uses the ordinary standards of reasonable and honest people test to determine whether or not the property so applied was dishonestly applied.”

His Honour further went on to define dishonest in this manner,

“Dishonest is defined in the Oxford Advanced Learners Dictionary of Current English as, intended to cheat, deceive or mislead.”

48. I also cite the case of The State v Francis Laumadava (1994) PNGLR 291,293. His Honour Injia, AJ (as he then was) stated and I quote,

“At the same time, it is also a subjective one. The court must look into the mind of the accused and determine whether given his intelligence and experience he would have appreciated as right minded people would have done that what he was doing was dishonest.”

49. I adopt and apply those principles in the case before me.
    

Application of Law to the Facts

50. Applying the law to the facts to find dishonesty on the part of the accused in this case, the prosecution must satisfy to this court on the evidence before this court the two tests.
    
51. One is objective as per The State v Gabriel Ramoi (supra) and one is subjective as per The State v Francis Lau Madava (supra). To do this, the prosecution must rely on credible evidence that was properly adduced before this court. The evidence will establish all the facts which this court will use to determine the state of mind of the accused. I rely on the case of Brian Kindilawi v The State (supra) and the case of The State v Gabriel Ramoi (supra).
    
52. The evidence before me is not sufficient for the following reasons, firstly the lack of an audit report, secondly, the existence of an ulterior motive by the complainants to lay charges against the accused out of many other persons implicated by the evidence that came before me. Thirdly the evidence of possible selective investigation and possible malicious prosecution. The State was quite correct to submit that I should find the accused guilty of a lessor amount as established by the evidence that is before me. However, I cannot do that considering the reasons I have just alluded to, most importantly the absence of the Audit Report and the possible motive to charge the accused and using evidence not clearly implicating the accused to proceed to charge the accused. As such the element of dishonesty have not been proven beyond reasonable doubt.
    
53. There is some evidence of monies being paid into the personal account of the accused but he says he used it for the purposes which was intended for and had provided acquittals to substantiate it. Again, there is no audit report to prove otherwise.
    
54. If I find the accused guilty of a lessor amount, the conviction will not be safe as the evidence is not sufficient. This court will also be seen to be going through all the evidence and selecting only those that implicate the accused and leaving out those evidence that implicate other persons. The State had failed to prove its case beyond reasonable doubt.
    
55. I therefore enter a verdict of not guilty, and I acquit the accused Copland Gewa accordingly on the charge of misappropriation under S. 383A of the Criminal Code Act.
    
56. Those are the orders of the court.
    

_______________________________________________________________
R Luman, Acting Public Prosecutor: Lawyer for the State
John Napu, Napu Lawyers: Lawyer for the Accused