SC2249
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 13 OF 2021

JOEL LUMA
Appellant

V

THE STATE
Respondent

Waigani: Cannings J, Polume-Kiele J, Pitpit J
2022: 27th April, 16th June

CRIMINAL LAW – appeal against conviction for abuse of office, Criminal Code, s 92(1) – elements of offence – whether acts of accused were prejudicial to rights of another.

CRIMINAL LAW – practice and procedure – rule against duplicity – whether lumping up multiple charges into one charge was prejudicial to accused.

CRIMINAL LAW – standard of proof – whether finding the accused guilty of only 16 of 44 allegations of abuse of office meant that the State’s case was overshadowed by doubt – whether the accused was denied the full protection of the law. 

This was an appeal against conviction after trial on one count of abuse of office under s 92(1) of the Criminal Code. The appellant was Secretary for the Department of Works. The State reduced into one charge on one indictment the allegation that he abused the authority of his office on 44 occasions by splitting contracts with one company for procurement of pothole-patching material in a way calculated to make each procurement cost less than his statutory limit of K300,000.00 and to deliberately avoid the public tender requirements of the Public Finances (Management) Act. The trial judge found that the State proved only 27 of the 44 alleged contracts had been awarded to the company, of which 11 were awarded in 2009 and 2010 and 16 in 2011. As to the 11 awarded in 2009 and 2010, the trial judge was not satisfied that the appellant deliberately ignored the procurement processes or set about to circumvent them and was therefore not satisfied that he had abused the authority of his office in respect of those 11 contracts. As to the 16 awarded in 2011, the trial judge ruled that by issuing certificates of inexpediency on one day, without authority, and by deliberately structuring the contracts so as to be within his financial limit and making false statements in an internal memo to the finance division aimed at speeding up payments to the company and deliberately attempting to conceal his conduct from senior officers of the Department, the appellant had wilfully abused the authority of his office. The trial judge held that all other elements of the offence under s 92(1) were proven in respect of those 16 contracts. On that basis, the appellant was convicted. He was sentenced to two years imprisonment, but there is no appeal against the sentence. In the appeal against conviction, 11 grounds of appeal were pleaded. Five were abandoned at the hearing of the appeal. The remaining six, some of which were repetitious of each other, were reduced to four main grounds,  that the trial judge erred in fact and/or in law, by: (1) convicting the appellant on an indictment that was defective, due to it offending against the rule against duplicity; (2) entering a guilty verdict despite finding that the majority of the allegations underpinning the charge were not proven; (3) finding that the element of prejudice to the State was proven, despite having found as a fact that evidence as to the comparative cost and quality of the material procured was inconclusive; (4) finding that neither intention nor conflict of interests were elements of the offence.

Held:

(1)	The rule against duplicity, which prohibits alleging two or more offences in a single charge, is reflected in s 531(1) of the Criminal Code but is a rule of general application only, subject to the overriding consideration that the prohibition will not apply if lumping more than one allegation into one charge is not unfair or prejudicial to the accused. In this case, the allegations were of different acts of a similar nature so it was not unfair or prejudicial to the appellant for the multiple allegations to be reduced to one charge. 

(2)	It was inconsequential that 28 of the 44 allegations underpinning the charge were not proven. The trial judge held that the elements of the offence pertaining to 16 of the allegations were proven beyond reasonable doubt and a verdict of guilty was the only proper order the trial judge could have made. 

(3)	It is one of the elements of an offence under s 92(1) that the accused’s abuse of authority of his office, done by an arbitrary act, is “prejudicial to the rights of another”. The trial judge properly found that the appellant’s acts had prejudiced the State as he committed very large amounts of scarce financial resources to a product that had not gone through normal procurement processes and had not been subject to a transparent and accountable tender process that would have ascertained whether the product met the actual needs of the Department for pothole-patching material, thus defeating the right of the State to have public money applied in accordance with its intended purpose following a proper procurement process prescribed by law. That finding was not dependent on a finding that the material procured was of superior or lesser quality or cheaper or more expensive than other materials. 

(4)	The trial judge did not find that “intention” was not an element of the offence, instead finding properly that it must be proven that the accused acted wilfully. As to notions of “conflict of interests” and “dishonesty”, the trial judge found properly that these were not elements of the offence under s 92(1). 

(5)	All grounds of appeal were dismissed and the appeal was dismissed and the conviction was affirmed. 

Cases Cited

The following cases are cited in the judgment:

The State v Hevelawa (No 1) (2017) N6815
The State v Joel Luma (2021) N8798
The State v Joel Luma (2021) N8923
The State v O’Neill (2021) N9213
Zebedee Jabri Kalup v The State (2021) SC2056

Counsel

J Napu, for the Appellant
D Kuvi, for the Respondent

16th June, 2022

1.      BY THE COURT: Joel Luma appeals against conviction after trial on one count of abuse of office under s 92(1) of the Criminal Code, which states:

A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.

2.     The appellant was Secretary of the Department of Works in the National Public Service. The State reduced into one charge on one indictment the allegation that he abused the authority of his office on 44 occasions over several years by arbitrarily splitting contracts with one company for procurement of pothole-patching material called “QPR”, worth K9,594,860.79, in a way calculated to make each procurement cost less than his statutory limit of K300,000.00, to deliberately avoid the public tender requirements of the Public Finances (Management) Act, which was prejudicial to the rights of the Independent State of Papua New Guinea.

3.     The charge alleged that the appellant:

… between the 1st day of January 2009 and the 31st day of December 2013 at Port Moresby in Papua New Guinea being employed in the Public Service as the Secretary of the Department of Works did and directed to be done in abuse of the authority of his office in approving 44 Minor works Contracts to Road Stoa Limited all valued to a sum of Nine Million, Five Hundred and Ninety-Four Thousand, Eighty Hundred and Sixty Kina and Seventy-Nine Toea (K9, 594, 860.79) without proper procurement process, prejudicial to the rights of the Independent State of Papua New Guinea.

4.     The trial judge found that the prosecution proved only 27 of the 44 alleged contracts had been awarded to the company, of which 11 were awarded in 2009 and 2010 and 16 in 2011. 

5.     As to the 11 awarded in 2009 and 2010, the trial judge was not satisfied that the appellant deliberately ignored the procurement processes or set about to circumvent them and was therefore not satisfied that he had abused the authority of his office in respect of those 11 contracts. 

6.     As to the 16 contracts awarded in 2011 the trial judge ruled that by issuing certificates of inexpediency on one day, without authority, and by deliberately structuring the contracts so as to be within his financial limit as Secretary and making false statements in an internal memo to the finance division aimed at speeding up payments to the company and deliberately attempting to conceal his conduct from senior officers of the Department, the appellant had wilfully abused the authority of his office. The trial judge held that all other elements of the offence under s 92(1) were proven in respect of those 16 contracts, viz that the appellant:

•	while employed in the Public Service; 
•	acted arbitrarily; and 
•	in a way prejudicial to the rights of another, the Independent State of Papua New Guinea. 

7.     On that basis, the appellant was found to have, in abuse of his office, approved 16 contracts with the same company, to a total value of K4,309,000.00. He was convicted of one count of abuse of office under s 92(1) (The State v Joel Luma (2021) N8798). He was sentenced to two years imprisonment (The State v Joel Luma (2021) N8923), but there is no appeal against the sentence. 

GROUNDS OF APPEAL AGAINST CONVICTION

8.     Eleven grounds of appeal were pleaded in the notice of appeal, numbered 4.1 to 4.11. Five were abandoned at the hearing of the appeal: 4.1, 4.3, 4.5, 4.6 and 4.9. The remaining six, some of which are repetitious of each other, can be reduced to four main grounds, that the trial judge: 

(1)	erred in law by convicting the appellant on an indictment that was defective, due to it offending against the rule against duplicity (ground 4.2);

(2)	erred in law by entering a guilty verdict despite finding that the majority (28) of the 44 allegations underpinning the charge were not proven (grounds 4.4 and 4.10); 

(3)	erred in fact and law by finding that the element of prejudice to the State was proven, despite having found as a fact that evidence as to the superiority or otherwise of the material procured compared to other material, and the comparative cost, was inconclusive (grounds 4.7 and 4.8); 

(4)	erred in law by finding that neither intention nor conflict of interest were elements of the offence (ground 4.11).

1 	CONVICTING THE APPELLANT ON A DEFECTIVE INDICTMENT

9.     Ground of appeal 4.2 states:

Her Honour erred in law in refusing the defence application that a single indictment cannot be supported by 44 separate allegations of facts clustered together. The appellant, to the contrary, says that the correct position of law and therefore trite law is that, for every single allegation of fact, there must be one charge and one indictment made out. The appellant further says that in the circumstances, her Honour erred in law in convicting the accused on the back of a defective indictment, per Walsh v Tattersall (1996) 188 CLR 77, at p 105: “The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge.”

10.     Mr Napu for the appellant submitted that it was wrong in principle to lump up 44 distinct allegations in one charge. This offended against the rule against duplicity. There should have been 44 separate charges on 44 indictments.

11.     We acknowledge the importance of the rule against duplicity, recently emphasised by the Supreme Court in Zebedee Jabri Kalup v The State (2021) SC2056. The general rule under s 531 of the Criminal Code is that an indictment should charge one offence only and should only charge more than one offence after the trial judge has carefully considered the risk of prejudice to the accused of joinder of multiple charges. Section 531 (joinder of charges: general rules) states:

(1)	Subject to this Code, an indictment must charge one offence only, and not two or more offences.

(2)	Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted—

(a)	by the same acts or omissions; or
(b)	by a series of acts done or omitted to be done in the prosecution of a single purpose,

charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connexion between the offences.

(3)	If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may—

(a)	require the prosecutor to elect on which of the several charges he will proceed; or
(b)	direct that the trial of the accused person on each or any of the charges be had separately.
	
(4)	This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

12.     However, we agree with the trial judge, who stated (N8798, at paragraph 122):

Ultimately, however, the question is one of fairness. In this case the allegation concerns a number of different acts of a similar nature, namely the arbitrary approval of 44 minor works contracts, in favour of one beneficiary, in the abuse of the authority of the accused’s office as Secretary of the Department of Works, to the prejudice of the State.  Having regard to the common nature of the alleged abuse the acts might fairly be regarded as forming part of the same alleged criminal transaction or enterprise.  Accordingly, it was proper to charge them in a single count of the indictment alleging abuse of office, extending over a period of three years.  

13.    The rule against duplicity is a rule of general application only. It is subject to the overriding principle that it will not apply if lumping more than one allegation into one charge is not unfair or prejudicial to the accused. 

14.     In this case, the allegations centred on 44 acts of a similar nature (arbitrary approval of 44 contracts with one company, given as part of the same alleged criminal enterprise). It was not unfair or prejudicial to the appellant for the multiple allegations to be reduced to one charge. In fact it was beneficial to the appellant as, rather than being exposed to the risk, if found guilty of 44 counts of abuse of office, of facing a maximum sentence of 88 years imprisonment, he faced the risk, if found guilty of one count, of facing a maximum sentence of two years imprisonment. Ground 4.2 of the appeal is dismissed.  

2 	ENTERING GUILTY VERDICT DESPITE DISMISSING MOST ALLEGATIONS

15.     Grounds 4.4 and 4.10 state:

4.4: Having dismissed 28 of the 44 allegations of facts, supporting the one indictment, her Honour erred in law (contrary to s 37(4) of the Constitution), in entering a finding of guilty verdict against the accused, when the State failed in every respect to prove their case, beyond the shadows of reasonable doubt. The appellant says that where doubt is prevalent in a finding of Court, the accused is entitled to the benefit of doubt, by operation of law; hence her Honour erred in law, arriving at a guilty verdict for the appellant, when her Honour’s finding is overshadowed by doubts. …

4.10: Her Honour erred in law, when arriving at the finding of guilty verdict against the accused, when the entire allegations, according to her Honour’s finding are overshadowed by doubt. The appellant says that in such circumstances where the prosecution’s case is overshadowed by doubts, the appellant being entitled to the benefit of doubt, ought to be acquitted of the charges, hence, her Honour erred in law. 

16.     Mr Napu submits that the trial judge, having dismissed 28 of the 44 allegations underpinning the one count on the indictment, was acknowledging that the State’s case was overshadowed by doubt. Her Honour ought to have concluded that the State had not proven its case and given the benefit of the doubt to the appellant. Her Honour ought to have enforced the right of the appellant, guaranteed to all persons charged with criminal offences, to the full protection of the law under s 37 of the Constitution, in particular the right under s 37(4)(a) to be presumed innocent until proved guilty according to law. Section 37(4)(a) states:

A person charged with an offence … 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.

17.     We are not persuaded by those submissions. It was inconsequential that 28 of the 44 allegations underpinning the charge were not proven. 

18.     In a case such as this, where one charge on an indictment can be properly regarded as representing multiple charges of the same offence, it is only necessary that the elements of one of the multiple charges be proven, in order for a guilty verdict in relation to the charge on the indictment to be entered. The number of the multiple charges proven against an accused will be relevant to the sentence, but it is only necessary, for the purposes of deciding on verdict, to prove one.

19.     Here, the single charge on the indictment represented 44 charges of an offence under s 92(1), the elements of 16 of which were found by the trial judge to be proven beyond reasonable doubt. A verdict of guilty of the one charge on the indictment was, in those circumstances, the only proper, logical and fair order to make. We find no error of law or fact was committed by the trial judge in the manner contended for in grounds of appeal 4.4 and 4.10, both of which are dismissed. 

3 	FINDING ELEMENT OF PREJUDICE PROVEN DESPITE INCONCLUSIVE EVIDENCE 

20.     Grounds 4.7 and 4.8 state:

4.7: Her Honour erred in law and fact in her finding regarding the element of prejudicial effect against the accused when her Honour made an earlier finding of fact that evidence regarding the superiority or otherwise of the QPR material, as opposed to the regularly supplied material, remains inconclusive. The appellant on the contrary, says that based on those conclusions of fact, her Honour’s conclusion of law is contrary to her own finding of fact; thus her Honour erred in both fact and law.

4.8: Her Honour erred in fact and law in her finding on comparative costs of the QPR material as opposed to the regularly supplied material, supporting her Honour’s finding on the element to prejudicial effect, when her Honour made an earlier finding and arrived at a conclusion of fact that the question of comparative costs remains inconclusive. The appellant says that her Honour erred in law in arriving at the conclusion she did, which contradicts her Honour’s earlier finding of fact, hence her Honour had erred in law. 

21.    The appellant argues that one of the elements of an offence under s 92(1) is that the accused’s abuse of authority of his office, done by an arbitrary act, is “prejudicial to the rights of another”. The appellant argues that the trial judge erred in fact and law in finding that this element was proven beyond reasonable doubt as the State failed to prove that the material procured under the various supply contracts approved by the appellant was more expensive or of lesser quality than the alternatives.

22.     We agree with two of the propositions at the centre of these grounds of appeal. First, we agree that the requirement to prove prejudice is one of the elements of the offence. We adopt the analysis of the elements provided by  Cannings J in The State v O’Neill (2021) N9213. The four elements are that the accused: 

(a) while employed in the Public Service;

(b) abused the authority of his office;

(c) by doing (or directing to be done) an arbitrary act; and 

(d) prejudicial to the rights of another.

23.    Secondly, we agree that the State failed to prove that the material procured under the various supply contracts approved by the appellant was more expensive or of lesser quality than the alternatives. The trial judge discussed this issue at N8798, paragraphs 185 to 200 and concluded that the evidence was inconclusive.

24.     However, we do not agree that a finding that the material procured under the contracts was more expensive or of lesser quality than the alternatives, was a necessary precondition to a finding that the appellant’s conduct was prejudicial to the rights of the State. We reject the argument, entailed in these grounds of appeal, that a finding that evidence on the question of comparative cost and quality was inconclusive was inconsistent with a finding that the element of prejudice was proven. 

25.     The question of whether the appellant’s conduct was prejudicial to the rights of the State could only properly be addressed by examining all the evidence, not just evidence of comparative cost and quality. Her Honour held, N8798 at paragraph 202:

The accused’s actions were prejudicial to the State because they committed very large amounts of scarce financial resources to products which had not gone through the normal procurement processes, or a transparent and accountable tender process to consider those matters, together with the actual needs of the Department for pothole patching material.  That was the prejudice to the State.  The State was entitled to have its monies applied in accordance with the purpose for which they were intended following a proper procurement process, prescribed by law.  

26.    Her Honour was correct in saying that the State has a right to have public money applied in accordance with its intended purpose following a proper procurement process prescribed by law. There was ample evidence that the appellant’s conduct on multiple occasions defeated that right. He committed very large amounts of scarce financial resources to a product that had not gone through normal procurement processes and had not been subject to a transparent and accountable tender process that would have ascertained whether the product met the actual needs of the Department for pothole-patching material. 

27.     We consider that the trial judge’s reasoning regarding the element of prejudice to the State was sound and in accordance with law. No error of fact or law has been established. We dismiss grounds 4.7 and 4.8.

4 	FINDING THAT INTENTION AND CONFLICT OF INTERESTS WERE NOT ELEMENTS OF OFFENCE 

28.     Ground 4.11 states:

Her Honour erred in law arriving at a finding that intention nor conflict of interest is not a necessary element of the offence of abuse of office under s 92(1) of the Criminal Code, after making a finding of fact that the appellant had no intention nor conflict of interest. To the contrary the appellant says that both intention and conflict of interest are necessary elements of the offence thus, in the prevailing circumstances, her Honour has misapprehended law, in arriving at a finding of guilty verdict against the appellant. The appellant says therefore that regarding this issue, her Honour also erred in law in arriving at the finding of guilty verdict.  

29.    The appellant argues that the trial judge erred in law by finding that neither intention nor conflict of interests were elements of the offence.

30.     This argument is based on a misrepresentation of the trial judge’s reasoning. Her Honour did not find that the intention of the appellant was not a necessary element of the offence. Her Honour made no such finding in any part of the judgment on verdict, including discussion of the element of the offence under s 92(1) that the accused abuse the authority of his office. Her Honour found only as to conflict of interests, that it was not necessary to prove that the appellant was in a conflict of interests or acted dishonestly.

Intention 

31.     As to the issue of intention, the trial judge set out the factors to consider when determining whether the State had proven beyond reasonable doubt that the appellant abused the authority of his office. Her Honour, having observed that there were very few PNG cases that addressed the elements of the offence and undertaken an extensive analysis of overseas authorities that addressed the concept of abuse of office in a criminal law context, explained that:

•	abuse of authority will occur when bad, improper or wrongful use is made of power given to a public official or when the authority of an office is used other than for the public good;
•	the abuse must be wilful;
•	the use of authority falls so far below acceptable standards it amounts to abuse of public trust;
•	the conduct involves a serious departure from proper standards; and 
•	it is more than an administrative fault and involves misconduct that is sufficiently serious to deserve criminal punishment. 

32.     We endorse the correctness of those principles and the way that they were applied by the trial judge. 

33.     By highlighting that the abuse committed by an accused must be wilful, her Honour was saying that the conduct of the accused must be intentional. Her Honour focused on the issue of wilfulness or intention at N8798 paragraphs 225 to 229:

By the accused’s own admission in evidence, Provincial Works Managers were not “begging” for QPR, it was simply “expedient” to organise procurement of it from head office.  

Whist this direction was given later in 2011 it is relevant to my finding that the accused acted in the intentional abuse of his office when he approved the contracts in January.  

Furthermore, even giving the accused the benefit of the doubt in relation to the 2009 and 2010 contracts, there is no doubt in my mind that the decision by the accused not to inform the FAS Operations of the 16 contracts in 2011 until after they had been executed by him was a deliberate attempt to conceal his conduct because he was aware it transgressed procurement requirements.  There can be no other explanation.  It was only after queries were raised by other officers that he sought support from Mr Asinimbu.

It is well established that intention at the time of any alleged offence is a question of fact to be determined by the trial judge.  It may be inferred by examining the accused’s conduct prior to, at the time and subsequent to the act constituting the offence:  The State v Raphael Kuandande [1994] PNGLR 512; Ikalom v State (2019) SC1888.

Having regard to all of the above facts and circumstances, I am satisfied beyond reasonable doubt that the accused wilfully abused the authority of his office as Secretary of the Department of Works to approve the Road Stoa contracts executed in 2011.  There is no other rational inference.  

34.     We find no error in the trial judge’s finding that proof of intention was necessary and that the State had proven that the appellant acted intentionally and had wilfully abused the authority of his office.

Conflict of interests

35.     The appellant is correct in saying that the trial judge found as a matter of law that it is not a necessary element of the offence that the appellant acted dishonestly or was in a conflict of interests. Her Honour addressed this issue at paragraphs 230 and 231 of the judgment on verdict:

Contrary to defence submissions, s 92(1) of the Criminal Code does not require proof of dishonesty. Dishonesty, whilst it might have been proven here for the reasons outlined above, has a particular legal meaning, and is not an element of the offence. Nor does s 92(1) require proof of intention to gain. Nor must there be a conflict of interest. 

Salika DCJ (as he then was) in The State v Hevelawa (No 1) found that the accused had abused the authority of their office by approving the contracts when there was a clear conflict of interest and acted dishonestly.  Whilst that constituted the abuse in that case, the decision is not authority for the proposition that there must be a conflict of interest in every case before s 92(1) applies. As above, the offence is broad in nature.  What constitutes an abuse will depend upon the office held by the accused and particular circumstances of the alleged offending.    

36.     The appellant has not provided any case authority that conflicts with the trial judge’s reasoning. Her Honour properly set out the elements of the offence, drawn from the meaning of the words of s 92(1). Her Honour set out, based on overseas cases (there being few PNG cases on point), what was meant by the element that an accused ‘abuse the authority of his office’. None of those cases support the notion that to prove abuse of authority of the accused's office, it is necessary to prove that the accused acted dishonestly or was in a conflict of interests or acted for personal gain. 

37.    The only case that arguably provided support for the proposition that dishonesty or conflict of interests must be proven is The State v Hevelawa (No 1) (2017) N6815. In that case the trial judge found that two accused were in a conflict of interests and had acted dishonestly, and those findings were relevant to the finding that the accused had abused the authority of their offices. However, the conflict of interests and dishonesty findings were not portrayed as essential findings that must be made in every case in order to prove the element of abuse of authority of office. 

38.     We consider that the trial judge accurately set out the law on conflict of interests and dishonesty. We dismiss ground 4.11. 

CONCLUSION

39.     None of the grounds of appeal have been upheld. The appeal must be dismissed. 

ORDER 

(1)	The appeal is dismissed.

(2)	The conviction of the appellant on one count of abuse of office under s 92(1) of the Criminal Code is affirmed. 
_________________________________________________________________
Napu & Company Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyer for the Respondent