Guli v State [2022] PGSC 77; SC2272 (5 August 2022)

SC2272

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 51 OF 2017

PAUL GULI

V

THE STATE

SCRA NO 52 OF 2017

GOGUMI KIMIN

V

THE STATE

Waigani: Batari, Berrigan and Miviri, JJ
2022: 30^th March and 5^th August

CRIMINAL LAW – APPEAL AGAINST CONVICTION – PRACTICE AND PROCEDURE - Application to amend notice of appeal – Test to be applied – No special circumstances making it an exceptional case warranting the grant of leave – Application refused

CRIMINAL LAW – APPEAL AGAINST CONVICTION – PRACTICE AND PROCEDURE – Whether trial judge unduly intervened in the conduct of the trial – Principles considered – No undue intervention on the part of the trial judge.

CRIMINAL LAW – APPEAL AGAINST CONVICTION - S 383A of the Criminal Code – Misappropriation – Convictions safe – Appeals dismissed.

Gogumi Kimin and Paul Guli were the District Administrator and District Accountant, respectively, for the Anglimp South Waghi District, then in Western Highlands. A single cash cheque in the sum of K473,575 was drawn against the monies in the District Services Improvement Program (DSIP) account, and the proceeds paid to seven persons, four of whom were employed by the District, including Gogumi Kimin, in the sum of K105,000, and Paul Guli, in the sum of K2000. Each were convicted of dishonestly applying the monies to their own use and the use of others. They were sentenced to five years and two years of imprisonment, respectively.

(1) There were no special circumstances which made Paul Guli’s case an exceptional case warranting the grant of leave to amend the notice of appeal: Rolf Schubert v the State [1979] PNGLR 66; Ombusu v The State [1996] PNGLR 335; Hariki v The State (2007) SC1320 applied.

(2) Judicial intervention may be required in any case to control proceedings and ensure the efficient administration of justice. A trial judge in a criminal proceeding has the power to intervene by asking questions and calling or recalling witnesses if he/she considers in his/her discretion that the course is necessary to the ascertainment of truth or in the interests of justice (Birch v The State [1979] PNGLR 75). Such intervention may be extensive or detailed. But a trial judge must not intervene unduly. The test is whether the trial judge has unduly intervened such that the trial is unfair so as to amount to a miscarriage of justice. It is a matter of degree to be determined in the particular circumstances of the case having regard to the nature, extent and quality of the intervention. The appellant must demonstrate how the interventions resulted in unfairness. That issue must be evaluated in the context of the whole trial, and the whole of the evidence.

(3) The trial judge did not intervene unduly or improperly in the questioning of the appellant Paul Guli.

(4) Having regard to circumstances in which the requisition was approved, the absence of documentation, the amount of monies involved, the arbitrary splitting of that amount into multiple smaller amounts, the position held by the appellants at the time, their knowledge and experience, the persons to whom the monies were paid, and the fact that they personally benefited, the appellants failed to demonstrate that their respective verdicts were unsafe or unsatisfactory.

Cases Cited:
Papua New Guinea Cases

Lati v The State (2015) SC1413
John Beng v The State [1977] PNGLR 115
Rolf Schubert v The State [1979] PNGLR 66
Ombusu v The State [1996] PNGLR 335
Birch v The State [1979] PNGLR 75

Overseas Cases:

FB v Regina; Regina v FB [2011] NSWCCA 217
Galea v Galea (1990) 19 NSWLR 263
Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 64
R v Johnson https://jade.io/article/421029[2015] QCA 270
R v Esposito [1998] 105 A Crim R 27
Yuill v Yuill [1945] 1 All ER 183

Legislation Cited

Section 37 (3) of the Constitution
Section 383A(1)(a)(2)(b) of the Criminal Code (Ch. 262) (the Criminal Code).
Section 23 of the Supreme Court Act

Counsel

P Mawa, for Paul Guli
A Token, for Gogumi Kimin
P Kaluwin, for the State

DECISION ON APPEAL

5^th August 2022

1. BY THE COURT: The appellants each appeal against their conviction on one count of the misappropriation of K473,575 belonging to the Independent State of Papua New Guinea, contrary to Section 383A(1)(a)(2)(b) of the Criminal Code (Ch. 262) (the Criminal Code).
   
2. At the relevant time Gogumi Kimin and Paul Guli were the District Administrator and District Accountant, respectively, for the Anglimp South Waghi District, then in Western Highlands, but now Jiwaka Province. They were jointly tried together with Andrew Kama Aleke, who was also convicted.
   
3. The National Court found that Gogumi Kimin and Paul Guli dishonestly applied the monies from the South Waghi District Services Improvement Program (DSIP) to their own use and the use of others. They were sentenced to five and two years of imprisonment, respectively.
   
4. Paul Guli lodged an appeal against sentence but abandoned the appeal before us.
   
5. The appellants were jointly represented at trial but filed separate appeals and are separately represented before us. The matters were listed together and there is no dispute that it is appropriate to deal with the matters together as they arise out of the same National Court decision.
   
6. It is well established that to succeed on an appeal against conviction an appellant must by virtue of s. 23 of the Supreme Court Act establish that: the verdict is unsafe or unsatisfactory; the conviction entailed a wrong decision on a question of law; or that there was a material irregularity in the trial. In the event that, the appellant establishes one of those matters the Supreme Court must then consider whether a miscarriage of justice has actually occurred. If not, it may dismiss the appeal: Lati v The State (2015) SC1413 applying John Beng v The State [1977] PNGLR 115.
   

GOGUMI KIMIN

7. Gogumi Kimin’s notice of appeal contains nine grounds. At the hearing of the appeal counsel submitted that the principal contention is that, the trial judge erred in finding beyond reasonable doubt that the application of the monies was dishonest. In particular, the learned trial judge failed to take into account the minutes of the Joint Planning and Budget Priority Committee (JDBP) meeting on 12 August 2010 which authorised the payment of the claims. Furthermore, the trial judge erred when he found that the appellant had breached the Public Finance Management Act (PFMA) and related Financial Instructions when he failed to specify the applicable provision(s), and the instruments were not admitted into evidence. The appellant’s role was limited to counter-signing as the requisitioning officer and he was not the initiator of the claims. The appellant approved the claims because he was under pressure from service providers, who had threatened the District Office and destroyed its property. Each of the claims was individually within his financial power as the s 32 officer. The monies were paid to the appellant in the absence of a District Treasury paymaster for distribution by him to the individual community-based service providers.
   
8. The minutes of the JDPB meeting do not assist the appellant. The minutes simply show that K3.5m was approved for a range of different purposes under the DSIP, including emergency road maintenance and minor road works, amongst others, including health and education. The trial judge found, however, that the monies were not applied in accordance with any such purpose, but were instead dishonestly applied for the appellant’s own use and that of his co-accused.
   
9. The evidence established that a single cash cheque in the sum of K473,575 was drawn against the monies in the DSIP account. A search warrant executed on the Bank of South Pacific Limited revealed that the proceeds were paid into the personal bank accounts of seven persons, four of whom were employed by the District Administration, including: a total of K107,000 to Gogumi Kimin (for amounts of K55,000, K50,000 and K2000); a total of K6175 to Lucas Kungere, the District Treasurer; K2000 to Paul Guli; and K2000 to the District Examiner. Of the balance: a total of K105,400 was paid to Andrew Kama (for amounts of K50,000, K50,000, K3000 and K2400); K107,000 was paid to Georgina Kama (for amounts of K55,000, K50,000 and K2000); K55,000 each was paid to Anna Kaupa and Peter Onguglo; K15,000 to John Puri Namba; K17,000 to Paul Kuk; and K2000 to Paul Karib. Other than invoices personally issued by Andrew Kama for the hire of his vehicle, the payments were not supported by documentation.
   
10. The trial judge further found that the appellant breached his authority as a s 32 officer under the PFMA by approving the requisition above his delegated authority of K50,000. Whilst the trial judge did not refer to the specific provision of the Financial Directions – DSIP Trust Guidelines there was no error in his finding. The PFMA is a piece of legislation. It does not need to be admitted into evidence. The Court is required to take judicial notice of it: s 5 of the Evidence Act. The State did not tender the DSIP Trust Guidelines in their entirety into evidence, which would be the normal course, but extracts were extensively reproduced in documents admitted into evidence through two of the State witnesses, by consent. Moreover, there was no dispute about the Guidelines or their effect. The appellant relied on them in his defence. The appellant’s case was not that he had not exceeded his financial authority under the Guidelines but that he had authority to approve the underlying claims on an individual basis as they were for amounts less than K50,000 and the circumstances at the time required it. They were put to the appellant’s co-accused by their joint counsel and relied on in submission by the defence. The appellant himself gave an unsworn statement from the dock that he approved the requisition for the total amount of K473,575 because there was only one leaf left in the cheque book and villagers had attacked the Treasury office demanding payment. Not all of the villagers had bank accounts, so he became the paymaster for the K105,000 paid to him, which was distributed to the workers in his area.
    
11. The learned trial judge rejected his statement having regard to all of the circumstances of the case and having heard and observed him in the dock. Claims that villagers attacked the District office were not put to State witnesses. The appellant’s statement that the monies were paid to him for distribution to workers was not put to the State witnesses and was not reflected in documentation.
    
12. Moreover, the evidence showed that the appellant approved the payment of K473,575 into the personal bank accounts of several persons, including his own, without any proper basis. There was no documentation referring to any particular project, work performed, where or by whom it was performed, under what agreement, or at what cost, or whether the work was approved, supervised, certified or confirmed as having been conducted. No acquittals confirming payment of any of the monies to local workers, by the appellant, or with respect to any of the monies for that matter, were kept in the District’s records. There was no basis for the appellant or the District to hire a vehicle from Andrew Kama personally, for over a year, if that is indeed what happened. No basis was found in the District’s records for the payments to other District employees. The total amount was large and well above the delegated authority of the appellant, and there was no apparent basis for the splitting of that amount into multiple smaller amounts, other than an attempt to circumvent the limits of his delegated authority.
    
13. In those circumstances the trial judge found beyond reasonable doubt that the appellant dishonestly applied the monies to his own use and the use of others. The appellant has failed to demonstrate any error on the part of the trial judge in that finding, or that the conviction is unsafe and unsatisfactory. The appeal is dismissed and the conviction and sentence affirmed.
    

PAUL GULI

14. Paul Guli’s notice of appeal contained five grounds of appeal. Two of the grounds were abandoned at appeal. Prior to hearing the appeal Paul Guli’s counsel sought to amend the notice of appeal to include an additional ground that there was a material irregularity in the course of the trial, such that the accused was denied a fair trial in accordance with s 37 (3) of the Constitution on that basis that the trial judge took over the conduct of the trial, asked questions of the State witnesses and the appellant, and denied the appellant the opportunity to freely give evidence in his own defence.
    
15. The power to allow or not allow an amendment to a notice of appeal is in the discretion of the Court. The discretion to allow an amendment is to be exercised only where there are special circumstances which make it an exceptional case warranting the grant of leave: Rolf Schubert v the State [1979] PNGLR 66; Ombusu v The State [1996] PNGLR 335; Hariki v The State (2007) SC1320.
    
16. As the Court made clear it is not possible to enumerate an exhaustive list of special circumstances which make a case an exceptional case warranting a grant of leave to amend. Every case must be assessed on its own circumstances. See Hariki, supra at [22] for a discussion of potential considerations.
    
17. In Ombusu the Supreme Court was satisfied that the joint trial of wilful murder with that of rape was a special circumstance. It was irregular and occasioned a miscarriage.
    
18. Similarly, in Hariki, supra the amendment was again very significant, concerning the presentation of two separate indictments in a wilful murder trial, which resulted in conviction and the imposition of the death penalty. There had been numerous changes in the appellant’s counsel at the Public Solicitor and the amendment was sought ahead of the hearing.
    
19. In Schubert, supra leave to amend was allowed in circumstances including the sudden late change of counsel for the appellant and the broad merits of the point taken, albeit ultimately unsuccessfully, that a court once alerted that a witness may be incapable of comprehending the nature of an oath must examine the witness and ensure that the latter clearly understands that he or she can be punished if their evidence is false before declaring how the evidence shall be taken.
    
20. In Birch v The State [1979] PNGLR 75, however, the Court refused to allow the notice of appeal to be amended to include a ground that the National Court having convicted and sentenced for the crime of rape should not have proceeded to convict of and sentence for the second charge of unlawful carnal knowledge, as it must have been obvious on the face of the record and it was one year since conviction.
    
21. The appellant failed to demonstrate that there are special circumstances in this particular case which make the case an exceptional case warranting the grant of leave to amend the notice of appeal.
    
22. It was argued that a legible copy of the appeal book was not available. We note, however, that it has been over five years since the appeal was lodged and almost four and a half years since a legible copy of the transcript was certified by the court transcription section. No reasonable explanation was given as to why diligent effort had not been made earlier to obtain a copy. It is unclear when the appellant’s lawyers took over the case but that is largely beside the point, particularly given that the appeal book before this Court was certified on the 1^st of March 2022. The matter has been through the directions and listings process, not once but twice, and no adequate explanation has been given as to why the application to amend was made at this late stage.
    
23. Furthermore, despite ample opportunity, the appellant was unable to direct the Court to the relevant parts, pages or sections of the transcript in the appeal book on which the proposed ground of appeal was based. Accordingly, the application to amend the notice of appeal was refused.
    
24. During the course of the leave application, however, counsel for the appellant indicated that the issue also formed part of the basis upon which the first ground of appeal was drawn, and that it formed part of the submissions to be made in support of that ground. In the circumstances, whilst refusing the application to amend the notice of appeal, we did not preclude counsel from raising the argument in that context.
    
25. In summary, the three grounds relied upon by the appellant contend that the trial judge’s finding that the appellant dishonestly applied the monies was against the weight of the evidence. It is submitted that the evidence showed that the offence was committed by Gogumi Kimin and Andrew Kama, and that the appellant’s role was limited to ensuring that the District Administrator, District Treasurer and Examiner signed the claim, before facilitating payment of it.
    
26. The appellant gave evidence at trial that the monies were paid to twenty claimants. In cross-examination he said that the monies were for a road construction project in Gogumi Kimin’s area. His only role was to check that the requisition had been signed by the authorising officers and facilitate payment.
    
27. The trial judge rejected his evidence. As above, the evidence showed that the monies were paid to seven claimants, not twenty, including four employed by the District Administration, including the appellant himself. The claims were not supported by documentation. The monies were paid directly into the recipients’ personal bank accounts.
    
28. Furthermore, the appellant admitted in his record of interview that his role as District Accountant and certifying officer was to check that the claim was in order and that supporting documentation was attached. He was familiar with the PFMA and understood the DSIP Guidelines. He knew that Mr Kungere was the financial delegate and Gogumi Kimin was the s 32 officer, and that their financial limit was K50,000 each. He knew that amounts above that had to be approved by the Provincial Administrator and the District Treasurer. He admitted several times that approval of the K473,575 payment was wrong. He admitted that it was in breach of the PFMA, and that any amount above K50,000 must be given to the Provincial Administrator for approval. In response to the proposition that he certified the claim knowing very well that the claim was improper and fraudulent, he said that he was under pressure and “threats” so he had to certify it.
    
29. In evidence the appellant resiled from his answers in the record of interview. He initially said that he knew the limits of all the accountable officers but then denied that the payment was above the financial limits of the District Administrator and the District Treasurer. He denied that the process was wrong. He said that some of the things he told police in his record of interview were not true and that he only said that the process was wrong because the case was politically motivated and he was under threat. The K2000 he received was for overtime. He was familiar with the Financial Directions – DSIP Guidelines and they entitled the District to receive 10% of K10 million every year for administrative costs. His overtime was paid out of the administration costs vote.
    
30. The trial judge rejected his claims that villagers attacked the office. The only sworn evidence was that of the appellant himself and having regard to the fact that those matters were not put to the State witnesses and the inconsistencies in the appellant’s evidence, the trial judge was entitled to reject it. Furthermore, as the trial judge observed, the appellant’s claim about overtime was not reflected in the requisition, there was no supporting documentation, and on the evidence its payment was not taken from the Administration’s costs vote. Again, the trial judge was entitled to reject the appellant’s evidence.
    
31. The trial judge had the opportunity to hear and observe the appellant give evidence, and the appellant has failed to demonstrate error on the part of the trial judge in his assessment in this case.
    
32. Having refused the application to amend we have hesitated to deal with the appellant’s contention that the trial judge unduly intervened in detail but feel compelled to make the following observations.
    
33. There appears to be a misconception that a trial judge is not permitted to ask questions, or to do so only at the end of re-examination. That is incorrect.
    
34. It is worth remembering that in Birch the trial judge asked 186 questions to the prosecutor’s 123 and put a great number of questions in cross-examination. Despite the persistent questioning of the trial judge, the Supreme Court found that the trial judge did not intervene to such an extent that a miscarriage of justice occurred.
    
35. We note the following extract reproduced in the decision of the Chief Justice in that case (emphasis ours):

“The question of undue participation by a judge in the conduct of a trial was discussed by the Court of Criminal Appeal of N.S.W. in R. v. Butler. Therein, the Chief Justice adopted the remarks on the same subject (and with which I too, with respect, agree) of Lord Greene M.R. in Yuill v. Yuill as follows:

“Now, his Honour undoubtedly did participate to an inordinate and unwise extent in the conduct of the trial. The matter is not to be determined by consideration of arithmetical statistics alone, but it was pointed out that his Honour, so far as Rochester was concerned, actually put more than one-third of the total number of questions that were asked of this witness, and he did interest himself to a considerable degree in eliciting various matters. In the course of the examination, he put a great number of questions which were really cross-examiner’s questions, but again all directed to eliciting evidence from Rochester as to the part that he had played ... I think that I cannot do better, so far as general principles are concerned, than cite at some little length passages from the judgment of Lord Greene M.R., in Yuill v. Yuill⁶. His Lordship said:

“The other argument was to the effect that the trial was unsatisfactory owing to the fact that the judge took an undue part in the examination of the witnesses. It was said that the judge put many more questions to witnesses than all the counsel in the case put together and that he in effect took the case out of counsel’s hands to the embarrassment of counsel and the prejudice of his case. The part which a judge ought to take while witnesses are giving their evidence must, of course, rest with his discretion. But with the utmost respect to the judge it was, I think, unfortunate that he took so large a part as he did ... It is quite plain to me that the judge was endeavouring to ascertain the truth in the manner which at the moment seemed to him most convenient. But he must, I think, have lost sight of the inconveniences which are apt to flow from an undue participation by the judge in the examination of witnesses. It is, of course, always proper for a judge, and it is his duty, to put questions with a view to elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are matters which the judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good. It is, I think, generally more convenient to do this when counsel has finished his questions or is passing to a new subject. It must always be borne in mind that the judge does not know what is in counsel’s brief and has not the same facilities as counsel for an effective examination-in-chief or cross-examination. In cross-examination, for instance, experienced counsel will see just as clearly as the judge that, for example, a particular question will be a crucial one. But it is for counsel to decide at what stage he will put the question, and the whole strength of the cross-examination may be destroyed if the judge, in his desire to get to what seems to him to be the crucial point, himself intervenes and prematurely puts the question himself. I think it desirable to throw out these suggestions in case they may be found helpful in the future.”

Again, but dealing rather with the question how far the judge’s opinion of the demeanour of a witness ought to be taken into account by the Court, his Lordship said:

“A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge’s examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.”

36. We agree with those observations but reiterate that no prescriptive rules can be given about such matters.
    
37. Furthermore, it is more than 75 years since the statements were made in Yuill v Yuill [1945] 1 All ER 183. Whilst the statement of principles remain sound, it does not mean that the application of these principles has not developed over time.
    
38. The role of the judge is to see “that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies”: Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 64.
    
39. It is well established that the trial judge in criminal proceedings has the power to intervene, but not unduly, by asking questions and calling or recalling witnesses if he/she considers in his/her discretion that the course is necessary to the ascertainment of truth or in the interests of justice: Birch, supra.
    
40. As the Court observed in Birch, in the circumstances of Papua New Guinea, judges may be faced from time to time with having the assistance of somewhat inexperienced prosecutors and inexpert evidence gatherers. As such, “it may be necessary for a judge to hold the balance between the interest of the State in enforcing the law and that of the accused in defending himself against a charge, by intervention of a rather more detailed and prolonged nature”. Those observations remain true to this day.
    
41. Such issues are not confined to Papua New Guinea, however. As observed in R v Johnson https://jade.io/article/421029 [2015] QCA 270 at [98], proper interventions, indeed possibly extensive interventions may be required because of counsels’ failure to conduct proceedings properly.
    
42. Another “vital difference” in this jurisdiction is that there is no jury which can be misled by judicial intervention. The distinction is one that has also recognized in other jurisdictions when criminal trials are conducted by judge alone: FB v Regina; Regina v FB [2011] NSWCCA 217 at [97].
    
43. It is also to be observed that judicial questioning is generally more common now, both here and in other jurisdictions. In part, this is in recognition of the role of the trial judge in controlling proceedings and ensuring the efficient administration of justice. In part, it reflects a growing understanding that it is appropriate in the interests of justice and the ascertainment of the truth.
    
44. Per Kirby ACJ in Galea v Galea (1990) 19 NSWLR 263 at 281 to 282:
    

“In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay”.

45. It is entirely proper for a judge to ask questions to clarify ambiguity, to rectify inaccuracy or to identify matters of concern to him or herself: Birch; R v Esposito [1998] 105 A Crim R 27 at 472.
    
46. It is also inevitable that greater judicial intervention will be required in complex cases, or cases involving voluminous documentation or financial records, multiple accused, allegations of sexual violence, or involving expert or child witnesses.
    
47. There is, of course, a balance to be struck. The judge must not “descend into the arena” lest he interfere with an accused’s right to a fair trial, or create an apprehension of bias. The test is whether, the trial judge has unduly intervened such that the trial is unfair so as to amount to a miscarriage of justice. It is a matter of degree to be determined in the particular circumstances of the case having regard to the nature, extent and quality of the intervention.
    
48. Furthermore, it is not sufficient merely to point to interventions on the part of the trial judge. The appellant must demonstrate how the interventions resulted in unfairness. That issue must be evaluated in the context of the whole trial, and the whole of the evidence: Galea, supra.
    
49. The trial judge did not take over the conduct of the trial in this case. The trial judge asked relatively few questions of State witnesses. Whilst he did ask more questions during the defence case, he did not take over the conduct of the examination in chief nor the cross-examination of the appellant.
    
50. It does appear to us that the trial judge was driven to some degree of exasperation which was reflected in the number, type and tone of questioning adopted by him of the appellant. That is, of course, to be avoided. Viewed as a whole, however, it is clear that the questioning was directed to ascertaining the appellant’s understanding of the procurement process in general terms, the role the appellant played in certifying the requisition in this case, and in particular his state of mind at the time. In this regard it is apparent from the transcript that the appellant was at times evasive and failed to answer questions put by both his own and State counsel, other than by restating that he was simply responsible for checking that the signatures of the District Administrator and District Treasurer were in place before certifying the claim. A number of the questions by the trial judge were directed to him in that context.
    
51. In addition, it was the trial judge who at the end of the appellant’s evidence reminded him of the potentially damning statements made in his record of interview and gave him the opportunity to comment on them, which neither counsel had done. The trial judge gave him the opportunity to explain what he meant by being under threat, and what he meant when he said that the case was “politically driven”. The trial judge was not obligated to put the record of interview to the appellant nor was he precluded from doing so. Both State and defence counsel may have decided not to examine the appellant about the record of interview for strategic reasons, or through lack of experience, or perhaps oversight, but it was certainly open to the trial judge to do so. Again, it was done with a view to understanding the role the appellant played, and in particular the appellant’s state of mind, which was the key issue for determination in the trial. There was no improper questioning.
    
52. In summary, there was evidence from the State witnesses establishing that the payment was approved in breach of the PFMA and Financial Instructions. There were admissions by the appellant in his record of interview to the same effect. The appellant did not raise any defence under s. 32 of the Criminal Code, which on the evidence was not open to him.
    
53. Of course, the fact that the appellant breached proper procurement processes by certifying the claim did not of itself establish dishonesty on his part, nor did the fact that he admitted that he knew that it was wrong to certify the claim. Both those matters were, however, relevant circumstances to be taken into consideration in determining the issue.
    
54. Having regard to those matters, the circumstances in which the requisition was approved, the complete absence of proper documentation, the amount of monies involved, the arbitrary splitting of that amount into multiple smaller amounts, the position held by the appellant at the time, his knowledge and experience, the persons to whom monies were paid, and the fact that he personally benefited, albeit to a lesser extent than some others, the appellant has failed to demonstrate that the verdict is unsafe or unsatisfactory.
    
55. The appeal is dismissed. The conviction and sentence are affirmed.
    

ORDERS

56. Accordingly, we make the following orders:
    
    • (1) The appeal by Gogumi Kimin against conviction is dismissed. His conviction and sentence are affirmed.
    • (2) The appeal by Paul Guli against conviction is dismissed. His conviction and sentence are affirmed.
      

_______________________________________________________________
Public Solicitor: Lawyer for Gogumi Kimin
Mawa Lawyers: Lawyer for Paul Guli
Public Prosecutor: Lawyer for the State