Kaman, The State v [1993] PNGLR 488 (8 October 1993)

PNG Law Reports 1993

[1993] PNGLR 488 - State v Yuants Kaman 

[1993] PNGLR 488

N1177

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

YUANTS KAMAN

Mount Hagen

Woods J

5-8 October 1993

CRIMINAL LAW - Misappropriation - Provincial government minister - Use of a discretionary vote - Mismanagement of public monies - Not criminal misappropriation.

Facts

The accused was charged with misappropriation. The State alleged that, whilst being Deputy Premier of Westerm Highlands Province, he dishonestly applied to his own use the sum of K4,700, being money allocated under the grants and subsidies appropriation. The funds were disbursed out of a vote which was under complete discretion of members, including the accused.

Held

1.       While operation of the grants and subsidies appropriation with no proper controls, no accountability nor acquittal etc. suggest gross mismanagement of public monies, this is not necessarily criminal misappropriation.

2.       No evidence was presented that the accused applied the money or the building materials to his own use.

Counsel

J Gah, for the State.

P Kunai, for the defendant.

8 October 1993

WOODS J: The accused, Yuants Kaman, is charged with misappropriation under s 383A of the Criminal Code. The charge is that in November 1992, whilst being Deputy Premier of the Western Highlands Provincial Government, he dishonestly applied to his own use the sum of K4,700, the property of the State. The details of the charge are that, as Deputy Premier, he was allocated money under a grants and subsidies appropriation for minor projects in his electorate. Various church groups had applied to him for grants, and he applied for funds for these churches. These applications were successful, and he arranged to purchase building materials for these projects from Highlands Building Supplies. When the cheque was drawn by the financial section of the provincial government, it was made payable to Highlands Building Supplies. The State alleges that materials were delivered to the accused but never reached the applicant churches. The total amount of the cheque was K4,700.

The Secretary of the Department of the Western Highlands gave evidence of the operation of the Grants and Subsidies Vote, which was approved by the Western Highlands Assembly. It was a vote which was operated at the complete discretion of the ministers and members to enable them to give money to persons and bodies in their respective electorates. The members themselves were the sole arbiters of who the money could be given to. There appears to have been no supervision, no examination of the feasibility of projects, no costing of projects, no records of the projects, no acquittal of the moneys, no receipts for the moneys, and no guidelines. There was no input or supervision of these monies by the public servants of the province and, thus, no records. The accused, when he gave evidence, did not dispute the above. He failed to produce any records or evidence of any normally acceptable procedures for the expenditure of public monies. The accused admitted in his record of interview that he himself, under that vote, had approved requests for help by churches for building materials for maintenance and repairs and improvements. He admitted that he had ordered over K5,000 worth of building materials from Hagen Building Supplies. He said these materials were delivered to his house and he then distributed the materials to the various churches.

The State brought a number of witnesses who gave evidence that they were the persons in charge of the respective parishes and that they had no knowledge of any applications to the accused for funds nor of the granting or supply of any building materials from the accused. Some of these witnesses seemed to be the senior pastors or priest in charge of a number of smaller village churches, and they may not have had daily or even weekly contact with the individual churches. It was suggested that they may not, therefore, have known what happened on a day-to-day basis in the churches or villages.

The accused brought witnesses who were community or village leaders in their respective churches, and they attested to having asked the accused for building materials for their churches and of having received the materials and done improvements to their churches. They said that they did not necessarily tell their overall pastor or priest in charge everything that happened. These witnesses were just as vague as the operation of the vote was. They gave no evidence of how much materials etc. were sought. There were no lists of how many sheets of roofing iron and how much timber, nor of what type, nor details of the work actually done for each church.

So at the end of all the evidence, what is the court faced with? There is an absolute discretionary appropriation of government monies. There is an application to this vote by the accused for K4,700 for building materials for some churches in his electorate. The materials are purchased and delivered, and then there is disputed evidence that the materials were distributed to some churches.

The whole scheme shows very poor administration of government money, but is there any evidence of criminal dishonesty in taking the monies and using them for his own purposes? Surely, if the fund was so discretionary, then it was open to the accused to apply for the funds to give to whomever he wanted. And this is what he said he did. Some people have come forward and said he did apply the funds for their benefit, as sought.

I am sure that there must be some overriding principle that all public monies must be properly appropriated and then properly spent and acquitted. This is why we have a public service to oversee and monitor the application of public funds. I recall that there used to be a very strong Public Finances (Control and Audit) Act, which was strictly monitored, and anyone who had access to or control of the spending of public funds had to account for such spending quite strictly. If they did not, they would be surcharged and probably sacked. Whilst I must assume that this is still the situation today, I do not know whether any strict administrative action is still taken.

The whole operation of this grants and subsidies appropriation with no proper controls, no accountability nor acquittal, with no guidelines, no costing, no records, and no receipts suggests such a gross mismanagement of public monies that the persons responsible should be removed from any office or position of responsibility. However this is not necessarily criminal misappropriation.

The facts of this case are quite different from the cases of Kindi Lawi, Roy Yaki, or Elijah Titus, where the accused clearly took government money and put it in their personal bank account or used the monies for purely personal advantage. In the case before me now, all I have is a situation of a government which gave itself a wide discretion to spend scarce public monies without any accountability, which I must deplore, but no evidence that the accused actually used the money or the building materials to his own purposes.

I, therefore, find the accused not guilty of misappropriation as charged.

Lawyer for the State: Public Prosecutor.

Lawyer for the defendant: P Kunai.

<