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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA No.4 OF 2014
BETWEEN:
PAUL TIENSTEN
Appellant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent
Waigani: David, J Sawong, J & Kassman, J
2014: 30th October & 19th December
CRIMINAL LAW – appeal against conviction – misappropriation – no error committed – under all circumstances of case verdict not unsafe or unsatisfactory – appeal dismissed – Supreme Court Act, Section 23.
PNG Cases cited:
John Beng v The State (1977) PNGLR 115
Kasaipwalova v The State [1977] PNGLR 257
Lawi v The State (1987) PNGLR 183
OK Tedi Mining Limited v Niugini Insurance Corporation and Ors [1988– 1989] PNGLR 355
Opai Kunangel v The State [1985] PNGLR 144
Peter Wararu Waranaka v Gabriel Dusava (2008) SC980
Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145
Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Francis Natuwohala Laumadava [1994] PNGLR 291
The State v Robin Erick (2006) PGNC 41; N3023
Ura Francis Miriva v The State (1981) SC197
Overseas cases cited:
Gail Riddel v The Secretary to the Department of Social Security [1993] FCA 261
Ratten v Queen [1971] UKPC 23; (1972) AC 378
R v Visser [1983] 3 NSWLR 240; 12 A Crim R 315
R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA)
R v Roughley [1995] TASSC 14; (1995) 5 Tas R 8; 78 A Crim R 160 (CCA)
R v Fordhan (1997) 98 A Crim R 359 (NSW CCA)
Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68
Counsel:
P. Kaluwin, for the State
G. J. Sheppard, for the Prisoner
JUDGMENT
19th December, 2014
BACKGROUND
"Allocate K9.8 million seed capital as per this proposal for the implementation of South Coast Economic Corridor for both East and West New Britain in 2011 PIP Budget."
"Acting Secretary – Ms. Zarriga
Please facilitate the release of K10 million under the 2011 Budget for this very important ..... For the Corridor Development targeting the Rural PNG".
GROUNDS OF APPEAL
"3.1 The Learned Trial Judge erred on a question of mixed fact and law in finding at paragraph 61 of the judgment that the words written by the Appellant on a proposal handed to him by Mr. Wartoto (Exhibit 5) amounted to a "direction" and consequently an application of K10 million ("the subject funds") within the meaning of Section 383A (1) (a) of the Criminal Code for the following reasons:
(a) Section 148 of the Constitution, expressly provides that a Minister (including the Appellant) does not have the capacity to direct officers of his Department. The words written by the Appellant on Exhibit 5 were therefore not capable of being construed as a direction.
(b) At paragraph 89, the Learned Trial Judge correctly found that Section 148 of the Constitution provided that a Minister did not have the capacity officers of the Department and should have then gone on to conclude that if there is no power to make a directive then by definition the Appellant was not guilty of dishonestly applying the subject funds.
(c) Under the provisions of the Public Finances Management Act, the exclusive capacity to "apply" the subject funds lay with the Secretary (as Departmental Head), who is required to approve the application of all funds under Section 32 of the Act.
(d) The uncontested evidence tendered at the trial (at page 91-94 of the transcript) was that the appellant had no input or whatsoever to do with the application of the subject funds, such application being made in fact by Mrs Ruby Zarringa, not the appellant.
(e) The literal meaning of "facilitate" is to "make an action or process easy or easier." There was no bases that the Learned Trial judge could have safely arrived at the conclusion in law that there was any evidence before the court that the notation on the proposal was a direction to make the application of the subject funds easy.
(f) The notation was nothing more than any informal reminder for the secretary to consider the payment in accordance with the intervention policy of the government and incompliance with the Public Finance Management Act, consistence with evidence of the Appellant.
3.2 Under the circumstances of the case, the verdict of "guilty" was unsafe or unsatisfactory having regard to, and for reasons that the Learned Trial judge erred on a question of law in finding (at paragraph 90 of the judgement) that there was sufficient evidence to prove beyond reasonable doubt, the element of "dishonest application" alleged against the Appellant pursuant to section 383A(1) (a) of the Criminal Code when instead he should have found that there was no evidence or insufficient evidence to establish that element to the required standard and consequently should have acquitted the Appellant for the following reasons:-
- (a) there was no evidence or insufficient evidence of intent by the appellant to act dishonestly in the application of the subject funds for the reason that uncontested evidence (at pages 91-94 of the transcript) established that such application was the responsibility of certain Department Officers and no the Appellant.
- (b) Uncontested oral evidence of the prosecution witness, Mr Joseph Lelang before the court established that another public servant (Ruby Zarriga) who in fact applied the subject funds.(pages 92-96)
- (c) The application of the subject funds by Zarriga was in accordance with government policy, in that the evidence of the Appellant and supported by defences witnesses (pages 186-188 of the transcript) was that the subject funds were part of the greater development budget which included interventions in accordance with government policy.
- (d) The Learned Trial Judge, with respect, incorrectly found against the evidence and weight of the evidence that the Appellant was responsible for the application of the subject funds were uncontested evidence (at page 92 of the transcript) was before the court that final authority, for such application, lay exclusively with the secretary (as Department Head) and is required to approve the funding pursuant to section 32 of the Public Finance Management Act.
- (e) There was uncontested oral evidence by William Sent (at pages 189-198 of the transcript) that the process appraisal was undertaken by the Department of National Planning and Monitoring in which Lelang and/or Zarriga were the final authority, as Department Heads, pursuant to section 32 Public Finance Management Act.
- (f) The Learned Trial Judge, with respect, failed to find (as he should have) that the application of the subject funds was exclusively within the function of the Head of the Department who is required to follow the correct procedures and/or provide written advice, in accordance with Clauses 16.8-16.10 of the Financial Management Manual in relation to the appropriation and application of the subject funds to the Appellant on those procedures. There was no evidence before the court that the Appellant was provided with any such written advice and in fact there was evidence before the court that the Appellant was not provided with any written advice. (pages 89, 92, 93, 94, 95 of the transcript)
- (g) The Learned Trial Judge should have found, that it was impossible for the Appellant to have made any application of the subject funds in this instance and had no responsibility or capacity to do so based on the following evidence:-
(i) The submission of 20 October 2010 for "seed capital" was consistent with the budget process for appropriating the subject funds for the 2011 development budget;
(ii) The subject funds were appropriated for the express purpose of seed capital for Travel Air under the intervention policy and in accordance with the development budget of the government;
(iii) Joseph Lelang knew or ought to have known the subject funds was earmarked for Travel Air as "seed capital" and to be appropriated under the development budget, based upon discussions with the Appellant (page 89 of the transcript);
(iv) The oral evidence by Lelang confirmed that the subject funds were placed under the auspice of "Airfreight Subsidy" by the Secretary, (pages 84 and 90 and the evidence of Jacob Mera at page 111 of the transcript) without any written advice provided to the Appellant under the Public Finance Management Act and Clauses 16.8-16.10 of the Financial Management Manual that the "Air Freight Subsidy" was an existing programme and the subject funds were not available for the exclusive use of Travel Air;
(v) There was no policy framework in relation to the "Air Freight Subsidy" and the Memorandum of Understanding was entered into in the absence of policy framework to establish Travel Air's requirements for compliance;
(vi) That the capacity to make this application of the subject funds (or any application) was (is) vested in the Secretary under section 32 of the Public Finance (Management) Act and not the Appellant;
(vii) The notation of 23 March 2011 to Ruby Zarriga was a reminder, and not a direction, for the subject funds to be provided in accordance with the Appellant's innocent and honest understanding that the subject funds were earmarked for Travel Air pursuant to government policy;
(viii) The subject funds were in fact applied by Zarriga in her capacity as acting Secretary of the Department from funds appropriated in accordance with the government's intervention policy completely consistent with the Appellant's evidence and his notation to Ruby Zarriga;
(ix) Based on the intervention policy, the appropriate appraisal process was followed by the public servants in applying the subject funds to Travel Air (pages 131 and 189-198 of the transcript);
(x) The Appellant could not in law, make any direction for any application of the subject funds, on the basis the Appellant had no power or control to make a direction pursuant to section 148 of the Constitution (paragraph 89 of the judgment);
(xi) That the responsibility for the due diligence for the application of the subject funds lies with the public servants of the department and not the Appellant (page 177, Simon Erinuka evidence).
(xii) At paragraph 16, the court referred to evidence that "in cross-examination Mr. Lelang agreed under the Public Finance Management Act the Department Head for the Department of National Planning had the power under s.32, to approve requisitions for expenditure".
(xiii) At paragraph 16 "Mera agreed that under s.32 of the Public Finance Management Act, the Department Head of DNPM had the power to approve requisitions for expenditure and that was where the final authority was vested.
(xiv) At paragraph 66, His Honour found "It appears to me from the evidence that every officer in the Department including the Minister and the Secretary knew the Secretary for National Planning and Monitoring had unlimited authority to approve unlimited financial expenditure of any amount".
(xv) The learned Trial Judge should have then found based on the evidence before the court that the Appellant was not responsible for the how, where and when any funds would be applied; rather it was, based on the evidence, vested in the Secretary under section 32 of the Public Finance Management Act and not the Appellant.
3.3 The Learned Trial Judge erred on a question of mixed fact and law by finding that there was sufficient evidence to establish to the required standard, the element of dishonesty, where for the following reasons the learned Trial Judge should have found instead that there was no evidence or insufficient evidence to establish the element of dishonesty to the required standard:-
- (a) At paragraph 58, the Learned Trial Judge found that there was "no evidence of any secret plans to wrongfully use K10 million in favour of Travel Air between the accused, Ms Zarriga, William Sent, Takale Tuna, Paul Daggun and Mr Wartoto. There is also no direct evidence of any plans between those mentioned to give K10 million to Travel Air" .
- (b) At paragraph 59, the Learned Trial Judge found there was "no evidence of any secret plans between the accused, Eremas Wartoto, Ruby Zarriga and her department officers involved in the releasing of K10 million".
- (c) The Learned Trial Judge then quite rightly found that the Appellant was not involved in a conspiracy and was therefore not guilty of conspiracy.
- (d) Upon that decision and by definition, the Learned Trial Judge should have concluded that in the absence of a conspiracy with the Appellant, and that the act of dishonestly applying the subject funds was the act of others.
- (e) At paragraph 60 his Honour concluded "the actions of Ruby Zarriga, Takale Tuna, William Sent and Paul Daggun seem to suggest to me that they went along with the direction of the Minister and agreed to facilitate the release of the K10 million to Travel Air".
- (f) The Learned Trial Judge should have, after reaching the above conclusion, accepted that the facilitation of the subject funds was the act of Ruby Zarriga, Takale Tuna, William Sent and Paul Daggun and not the dishonest act of the Appellant.
3.4 The Learned Trial Judge erred on the question of mixed fact and law where His Honour, at paragraph 88 applied the subjective test for dishonesty, and found the Appellant guilty of dishonestly applying the K10 million where instead His Honour should have found:-
- (a) there was no evidence or insufficient evidence before the Court that the Appellant believed he had acted dishonestly or considered that the "directive" was dishonest or the Appellant had formed the intent to be dishonest.
- (b) There is substantial evidence before the court that it was others who were responsible for the application and processing of the subject funds (oral evidence of William Sent – pages 189-198 of the transcript).
3.5 The Learned Trial Judge erred on the question of mixed fact and law when His Honour found at paragraph 43 that Travel Air was not "operational". where instead he should have found that that Travel Air was in the process of becoming operational, because:-
- (a) The CEO of Travel Air gave uncontested evidence that Travel Air was in the process of becoming operational. (at pages 227-234 of the transcript)
- (b) The CEO of Travel Air gave uncontested oral evidence as to the status of the Airline in anticipation of acquiring aircraft to fulfil their commitments under the Memorandum of Understanding. (at pages 227-234 of the transcript)
- (c) The CEO of Travel Air gave uncontested oral evidence that Travel Air was impeded by the National Airports Corporation and CASA lack of action to certify smaller airstrips, which prevented Travel Air from servicing the rural areas. (at pages 227 – 234 of the transcript).
- (d) For all intents and purposes Travel Air was actively undertaking the correct process to become operational and in fact did become operational.
3.6 The Learned Trial Judge erred on the question of mixed fact and law where His Honour found at paragraph 52 that the Senior Officers "ought to have known" that the minute by William Sent was not true or accurate, because:-
- (a) There is no basis in law or upon the facts that supports such conclusion and was not open to the Learned Trial Judge to make such conclusion.
- (b) The Learned Trial Judge speculated that the senior officers had some concerns on the validity of the memo where no such evidence was before the court.
3.7 The Learned Trial Judge erred on a question of mixed fact and law by allowing prejudicial evidence in relation to disciplinary action and charges of insubordination if the "direction" was not complied with, as follows:-
- (a) At paragraph 12 of the decision of the Learned Trial Judge "Mr Lelang contended that this amounted to a direction which he was compelled to implement. He contended that if he did not implement the Accused directives, he would have been disciplined and charged with insubordination".
- (b) At paragraphs 61 and 62 the court found "Ms Zarriga had no choice but to facilitate the release of the K10 million" and "had Ms Zarriga not facilitated the release of the K10 million, I wonder what might have been" and "... if he refused a ministerial direction such as that he would be charged with insubordination and his job will be on the line".
- (c) At paragraph 62 the learned Judge found that the notation on the first proposal to the former secretary, Lelang, "Allocate K9.8 million seed capital as per this proposal for the implementation of South Coast Economic Corridor for both East and West Britain in 2011 PIP Budget" was a "directive" because in the event Lelang did not implement the "directive" he would have been disciplined and charged with insurbordination is prejudicial to the Appellant. This evidence should have been rejected by the Learned Trial Judge and His Honour should have found instead that:-
- (i) The accused did not have the power to discipline, raise charges of insubordination or terminate employment in respect to any public servant, a circumstance that the former secretary knew (or ought) to have known based on his experience;
- (ii) The National Executive Council ("NEC") is the only body with the power to discipline or raise charges of insubordination;
- (iii) The former secretary was (or ought to) have been aware of the NEC's power and there was no perceived, apparent or real intention to institute disciplinary charges or charges of insubordination in relation to the notation; and
- (iv) There is no evidence or there was insufficient evidence before the court that the former secretary or any other public servant's job "was on the line" in respect to not following proper administrative or budgetary guidelines pursuant to the Public Finance (Management) Act.
3.8 The Learned Trial Judge erred on the question of mixed fact and law by refusing the Appellant, upon application by the Appellant's legal representative, to call one more witness to give evidence, Ruby Zarriga, on behalf of the Appellant.
At paragraphs and 60 and 61, His honour referred back to the note to Ms Zarriga and found "to my mind I conclude that the words amount to direction. This is because Ms Zarriga had no choice but to facilitate the release of the K10 million."
The Learned Trial Judge should have allowed the full ventilation of the evidence of the defence by allowing an adjournment to enable the defence witness to appear and give evidence, failure to do so resulted in:-
(a) no evidence from the one person who had direct knowledge of the "direction" and its implication;
(b) prejudice to the Appellant as there was no evidence before the court for his honour to make such a conclusion; and
(c) a breach of the rights afforded to the Appellant pursuant to sections 32, 37 and 59 the Constitution and denying the Appellant a fair trial.
3.9 The Learned Trial Judge erred on the question of mixed fact and law when finding at paragraph 88, that the "only disputed element of the charge under s.383A (1)(a) of the Criminal Code is the element of dishonesty". The element of application was and is disputed because:-
- (a) At paragraph 21 Paul Duggan responded to the court inquiry that he was told "verbally" by Mr Tuna that the "Accused wanted the requisitions raised immediately" which is hearsay and cannot be relied upon.
- (b) Notwithstanding there was no objection to the witness response, the Learned Trial Judge ought to have known that this was hearsay and prejudicial to the defence of the Appellant and:-
- (i) Excluded such evidence on his own volitation; or
- (ii) Placed no weight on the evidence.
3.10 The Learned Trial Judge erred on the question of mixed fact and law where at paragraph 84 His Honour refused to accept the evidence that the Secretary for the Department of Planning and Monitoring "was at liberty or had unlimited powers to approve unlimited requisitions for expenditure from those public monies held by the Department" and instead should have found:-
- (a) That the Secretary of the Department had the final authority in relation expenditure under section 32 of the Public Finance Management Act and not the Appellant.
- (b) At paragraphs 46, 47 and 48 of the judgement there were facts before the court that Zarriga noted to the Acting Deputy Secretary to "appraise and advise" – not facilitate.
17. These grounds suggest that the Learned Trial Judge fell into error in not finding that the prosecution had not proven beyond reasonable doubt that the Appellant dishonestly applied the subject funds to the use of Travel Air.
THE LAW
18. An appeal against conviction is governed by Section 23(1) (a) of the Supreme Court Act. Section 23(1) (a) states:-
"Subject to Subsection (2), on an appeal against conviction the Supreme Court shall allow the appeal if it thinks that-
(a) The verdict should be set aside on the grounds that under all the circumstances of the case it is unsafe or unsatisfactory..."
19. The principle of law on appeals against conviction is stated in the oft quoted Supreme Court decision of John Beng v The State (1977) PNGLR 115 where it was held:
"The Supreme Court must be satisfied that there is, in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed".
ISSUES
20. The central issue raised by the ten grounds of appeal for our consideration and determination will therefore be, whether in all the circumstances of the case, the Appellant has demonstrated that there is a reasonable doubt as to the safeness and satisfactoriness of the verdict?
21. Other issues tangential to the central issue are:
1. Whether the Learned Trial Judge fell into error when he found that the words "Please facilitate the release of K10 million under the 2011 Budget for this very important ... for the corridor development targeting the rural PNG" written by the Appellant on the Travel Air proposal addressed to the Acting Secretary, Ms Zarriga on 23rd of March 2011 amounted to a direction?
2. Whether the Learned Trial Judge fell into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of dishonesty?
3. Whether the Learned Trial Judge fell into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of applying funds to the use of others?
4. Whether the Learned Trial Judge fell into error when he found that Travel Air was not operational?
5. Whether the Learned Trial Judge fell into error when he found at paragraph 52 of the judgment that Mr. Takale Tuna and Ms. Ruby Zarriga as senior officers ought to have known that the matters raised by Mr. Sent in his minute to them were not true and accurate?
6. Whether the Learned Trial Judge fell into error by allowing evidence in relation to possible disciplinary action for insubordination if the "direction" were not complied with?
7. Whether the Learned Trial Judge fell into error when he refused to grant the Appellant's application for adjournment to enable him to call Ms Zarriga to give evidence?
8. Whether the Learned Trial Judge fell into error when he refused to accept the evidence that the Secretary for the Department was at liberty or had unlimited powers to approve unlimited requisitions for expenditure from those public funds held by the Department?
First Issue
Whether the Learned Trial Judge fell into error when he found that the words "Please facilitate the release of K10 million under the 2011 Budget for this very important ... (unreadable)... for the corridor development targeting the rural PNG" written by the Appellant on the Travel Air proposal addressed to the Acting Secretary, Ms Zarriga on 23rd of March 2011 amounted to a direction?
22. It was submitted by the Appellant that the Learned Trial Judge fell into error in finding that there was a "direction" because:
(a) Section 148 of the Constitution does not confer on a Minister any power of direction or control over any department over which he or she has political responsibility inclusive of its officers;
(b) Consequently, the Learned Trial Judge could not, by law, give any direction to the Department of National Planning and Monitoring and its officers to apply the subject funds;
(c) The notation the Appellant made on the second proposal in any event, in fact and law, was not a direction or could not be construed as a direction.
23. It was further submitted by the Appellant that the power to apply any fund held by the Department was within the sole and exclusive duty of the Secretary of the Department as the Department Head in accordance with Section 32 of the Public Finances (Management) Act. Accordingly, the Appellant had no input or played no part whatsoever in the application of the subject funds which was done by Ms Zarriga in her capacity as the Acting Secretary consistent with her responsibilities pursuant to Section 32 of the Public Finances (Management Act and the subject funds were part of a government intervention policy and intended for the express purpose and use of Travel Air.
24. Given that the Learned Trial Judge found that the unauthorised application of the subject funds was a direct result of the Appellant's "direction", counsel for the Appellant referred us to Kasaipwalova v The State [1977] PNGLR 257; Gail Riddel v The Secretary to the Department of Social Security [1993] FCA 261 and Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68 which, it was submitted, are cases that have considered what is and what is not a direction and these cases demonstrate that the notation on the second proposal by Travel Air was not a direction at all.
25. The Respondent submitted that Ground 3.1 has no basis and must fail. Mr. Kaluwin for the Respondent, relying on Peter Wararu Waranaka v Gabriel Dusava (2008) SC980, argued that when making its own independent assessment of the evidence, a Court exercising an appellate jurisdiction must have full regard to the fact that the trial Court had the benefit of having seen and hearing the witnesses. It was therefore contended that whether the Appellant had the capacity to direct does not change the fact that the words used by the Appellant can be construed as a direction. Counsel argued that the Appellant cannot distance himself from the words used and their effect. He said that the only reason why the Acting Secretary Ms Zarriga acted on the matter was because of the delivery of the note by the Appellant. He submitted that without this note, it could reasonably be concluded that the subject funds would not have been made available to Travel Air.
26. It was argued that the Appellant's argument based on Section 148 of the Constitution has no merit and should be rejected on the basis that proof of the essential elements of the offence of misappropriation does not require adherence to Section 148 of Constitution. The essential elements the Respondent was required to prove beyond reasonable doubt, it was submitted, were that; the Appellant acted dishonestly; the Appellant applied the property to his own use or the use of others; and that the property belonged to another and the Learned Trial Judge found that all three essential elements were established to the required standard.
27. Mr. Kaluwin further contended that prosecution witness, Ekip Kop's evidence given under re-examination regarding the notation to Ms Zarriga being construed as an authoritative direction which had to be abided by or followed was appropriately considered by the Learned Trial Judge as none of the relevant questions or answers was objected to.
28. The Learned Trial Judge found that the Appellant's notation amounted to a direction upon consideration of the evidence of Mr. Lelang with regards to the notation to him with respect to the first proposal and the evidence of Ekip Kop with regards to the second proposal. He gives his reasons at paragraph 61 to paragraph 64 of the verdict. With regards to the first proposal, Mr. Lelang said that the notation to him amounted to a direction. With regards to the second proposal, Mr. Kop said the notation amounted to an authoritative direction. Mr. Kop's evidence on this aspect was not objected to by the Appellant. With notations of similar nature made by the Appellant in both the first and second proposals, at paragraph 62, the Learned Trial Judge concluded that the words "Please facilitate the release of K10 million..." in the second proposal amounted to a direction to facilitate the release of the subject funds.
29. We have considered the Appellant's submissions based on the prohibition in Section 148 of the Constitution and accept that Mr. Lelang in his evidence admitted that the Appellant lacked the authority to approve or direct the release of the subject funds. However, the Learned Trial Judge went on to state at paragraph 59 of the verdict that ".. it is apparent to me that the accused assumed the role of the Secretary for the DNPM when he marked down the proposals to Lelang and Zarriga respectively. This is because he had no authority to direct or recommend any funding releases, as that responsibility belonged to the Secretary of the Department only." We would agree with the Respondent's submission that adherence to Section 148 or not is immaterial for purposes of establishing the essential elements of the offence of misappropriation.
30. We have also considered Kasaipwalova, Gail Riddel and Waratah Coal Pty Ltd. These cases suggest that an instruction or direction must be free of ambiguity and uncertainty to be binding between parties and must be viewed from the context in which it appears and need not be in any particular form written or otherwise. We consider that these cases do not assist the Appellant and reject his submissions. On the other hand, these cases only go to support the approach taken by the Learned Trial Judge.
31. Finally, both parties nor the Learned Trial Judge referred to the Record of Interview when discussing whether the notation under consideration was a direction or not. It is instructive that we set out below Question and Answer 27:
"Q27. Is it true that you directed the Acting Secretary at that time, Ms Ruby Zarriga to facilitate the payment, as per your footnote dated 23rd March 2011?
Ans. That's correct, it's part of the implementation of budget."
Second Issue
Whether the Learned Trial Judge fell into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of dishonesty?
"It will be a very rare case where a trial judge is justified in intervening to reject evidence where the accused is represented and where no objection has been taken to it. The duty of a trial judge to put to the jury any matters upon which the jury, upon evidence, could find for the accused, whether or not it has been raised by his counsel (Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 118) does not include an obligation to reject evidence to which his counsel has not objected. An objection may deliberately not be taken to inadmissible evidence for a variety of reasons. Quite often, it is because counsel for the accused sees some advantage to his client in not fighting an irrelevant issue in relation to that evidence, even where the evidence may otherwise be prejudicial to his client. An intervention by the trial judge may sometimes cause more prejudice than the evidence which he intervenes to reject".
"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on "testimonially" ie, as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramaniam v Public Curator [1956] UKPC 21; [1956] 1 WLR 965 at 970:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made."
"89. In this case the accused knew or ought to have known that his direction or directive to the Acting Secretary to facilitate release of K10 million was wrong for the reasons that he had no authority to give such a direction to the Acting Secretary and also for the reason that approval for release of such funds must come from the National Executive Council. Moreover he knew that he was wielding his political muscle over an Acting Secretary and her officers.
90. Given the accused's level of education, his intelligence, skills and experience in the Public Service and in Politics, I have no doubt in my mind that he appreciated and knew that what he was doing was wrong and that it was dishonest; that is directing the Acting Secretary to facilitate the release of K10 million was improper and dishonest. He effectively caused the Department officers to break rules."
"60. However the actions of Ruby Zarriga, Takale Tuna, William Sent and Paul Daggun seem to suggest to me that they went along with the direction of the Minister and agreed to facilitate the release of the K10 million to Travel Air. The evidence of Paul Daggun also seems to suggest too that Takale Tuna may have spoken to the Accused because Paul Daggun said Takale Tuna told him (Paul Daggun) that the accused wanted the requisitions raised immediately."
Third Issue
Whether the Learned Trial Judge fell into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of applying funds to the use of others?
"91. Evidence shows that the accused was involved in the application of the money to Travel Air. He facilitated the release of the K10 million by his direction. Without his directive, the K10 million would not have been released. He commenced the process of the release of the money through his direction or directive. He presented the cheque to Eremas Wartoto to complete the facilitation and application. Was that application dishonest? The direction from him and causing the department officers to bypass the proper appraisal process under the guidelines and by bypassing the Public Finance Management Act and the deliberate lies in the way appraisal process and the speed in which the facilitation of the release of the funds were orchestrated, I conclude that the accused and his officers in the department dishonestly applied K10 million to the use of Travel Air thereby contravening s.383A(1)(a) of the Criminal Code."
Fourth Issue
Whether the Learned Trial Judge fell into error when he found that Travel Air was not operational?
Fifth Issue
Whether the Learned Trial Judge fell into error when he found at paragraph 52 of the judgment that Mr. Takale Tuna and Ms. Ruby Zarriga as senior officers ought to have known that the matters raised by Mr. Sent in his minute to them were not true and accurate?
Sixth Issue
Whether the Learned Trial Judge fell into error by allowing evidence in relation to possible disciplinary action for insubordination if the "direction" were not complied with?
"62. Had Ms Zarriga not facilitated the release of the K10 million, I wonder what might have been. I can only guess and speculate. Mr Joseph Lelang alluded to this in his evidence when he was giving his evidence about the accused marking down the first proposal to him when he wrote "Allocate 9.8 million....." that, if he refused a ministerial direction such as that he would be charged with insubordination and his job will be on the line. However, in this case I am firm in my own mind that the words: "Please facilitate the release of K10 million............" amounts to a direction. I am also firm in my own mind that "Approve K9.8 million.........." Was a direction as well to Joseph Lelang.
63. The accused did not in his note to Ms Zarriga say something like "Please appraise the proposal by Travel Air and advise as to its suitability for government funding". Instead the note is direct to the facilitation of the release of the K10 million.
64. It seems to me the Senior Officers of the Department appear to be performing their duties to ensure the K10 million was released to Travel Air. They did so with respect to please their "political master," with the hope to gaining in turn favour from him in that Ms Zarriga was an Acting Secretary while Mr Takale Tuna as Acting Deputy Secretary (PIP). With respect I know there is no direct evidence of this but the court is entitled to draw such inferences from all the evidence surrounding the circumstances of the release of the K10 million. The minute by Mr Sent appears to be the appraisal which was directed by Ms Zarriga and Mr Tuna. The appraisal contained lies and was misleading and calculated to legitimize the appraisal process. Ms Zarriga and Mr Tuna may have hoped in return to get substantive appointments. That is in my view a reasonable inference to draw from all the circumstances of the case, if they could pull this one through and they did. However, it was not to be because as it became public information." (Our emphasis)
Seventh Issue
Whether the Learned Trial Judge fell into error when he refused to grant the Appellant's application for adjournment to enable him to call Ms Zarriga to give evidence?
"It is my view that, the decisions in the case of Eiserman v Nanatsi (supra) and that English common law case of Surujpaul v R (supra) do uphold the Constitutional provision for the protection of law as required by s.37 (4) (a) (e) and (f) of that document which requires that a person charged with an offence must be presumed to be innocent until proven guilty according to law. Subsection (4) (a) (e) & (f) are in the following terms:
"(4) A person charged with an offence –
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and ...
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution".
Further to the above, s.570(1)(2) of the Criminal Code complements the above Constitutional provision by saying:
"(1) A person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined and cross-examined by his lawyer.
(2) A person charged with an offence may, by leave of the court, have his defence conducted by another person who is not a lawyer."
"(1) A court before which a trial has commenced may at any time, in its discretion, adjourn the trial.
(2) A court before which a trial has commenced may at any time, on application by the State Prosecutor or the accused or his lawyer, direct that the trial be continued at a different place, whether or not the place is a place appointed under the National Court Act for sittings of the National Court.
(3) If a court directs that the trial in which no evidence has been taken be continued at a different place, the trial may be continued before a Judge other than the Judge before whom it commenced." (Our emphasis)
"So you have the weekend. You have a much longer weekend to prepare the defence case from tomorrow and of course Monday is a long – it is Independence Day so we can resume on Tuesday next week. Is that okay with you? That is all right with you and the problem of witnesses being away hopefully this weekend can enable the defence to arrange its witnesses in time for next Tuesday."
Eighth Issue
Whether the Learned Trial Judge fell into error when he refused to accept the evidence that the Secretary for the Department was at liberty or had unlimited powers to approve unlimited requisitions for expenditure from those public funds held by the Department?
CONCLUSION
_______________________________________________________
Public Prosecutor: Lawyer for the State
Young & Williams: Lawyers for the Prisoner
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