DC4038

PAPUA NEW GUINEA
	
[IN THE COMMITTAL COURT OF JUSTICE]

NCC NO. 1289-1306 OF 2013
NCC NO. 33-36 OF 2014

CHIEF INSPECTOR TIMOTHY GITUA
OF POLICE
Informant

AND:

PAUL PARAKA
Accused

WAIGANI:   WILMOT, SM
2020:		10th JUNE

I.	Introduction

1.	The Defendant was charged with 22 criminal offences, 18 under the Criminal Code Act and 4 under the Proceeds of Crimes Act 2005 (POCA Act).

2.	The Criminal charges were laid against the accused on the 23rd October, 2013 (18 charges) and 9th January, 2014 (4 charges) respectively.

3.	The 22 criminal charges were as follows: 

(a)	18 charges on the 23rd October, 2013: 

(i)	9 counts of Conspiracy to Defraud contrary to Section 407(1)(b) of the Criminal Code Act, Chapter 262.

(ii)	5 counts of Stealing by False Pretense contrary to Section 404(1)(a) of the Criminal Code Act, Chapter 262.

(iii)	2 counts of Misappropriation/Dishonestly Applied contrary to Section 383A(1)(a) of the Criminal Code Act.

(iv)	2 counts of Money Laundering contrary to Section 34(2)(a) of the Proceeds of Crimes Act 2005.

(b)	4 charges on the 9th January, 2014: 

(i)	1 count of Conspiracy to Defraud contrary to Section 407(1)(b) of the Criminal Code Act, Chapter 262.

(ii)	1 count of Stealing by False Pretense contrary to Section 404(1)(a) of the Criminal Code Act, Chapter 262.

(iii)	1 count of Misappropriation/Dishonestly Applied contrary to Section 383A(1)(a) of the Criminal Code Act.

(iv)	1 count of Money Laundering contrary to Section 34(2)(a) of the Proceeds of Crimes Act 2005.

4.	The criminal charges are in respect of allegations of improper payments by the State to the accused’s Law Firm (Paraka Lawyers) legal bills for undertaking work for the State over a 2 year period.

5.	The allegations were based on a general complaint by the former Solicitor General, Mr. Neville Devete to the Police dated 14th March, 2012.

6.	The Police brief was served on the accused on the 28th October, 2019 by way of Court Order by this Court on the 25th October, 2019.

II.	Background

7.	It is important to state the history of the case. The Police initiated the criminal charges against the accused on two sets of payments done over the years; the first set comprises the current case involving a total of 22 criminal charges, and involves various amount totaling K80.2 million, (payments made to the Law Firm as “legal fees” for services rendered), over 2 years between February 2012 to May 2013).

8.	The second set of case involves 27 criminal charges, involving different amounts of payment done over 7 years’ period between January 2007 to 31st December, 2011 (this Committal charges were struck out for abuse of process by His Worship M. Gauli on the 10th December, 2018 in proceedings NCC No. 942 - 956 of 2014).

9.	On the 16th December, 2016, the Supreme Court dismissed an appeal by the accused over a refusal by the District Court for the consolidation of both sets of the District Court proceedings as they arose from the same facts/events.  This stemmed from the District Court refusal of the same application on the 15th August, 2015, resulting in an appeal to the National Court and finally to the Supreme Court.  

10.	Then on the 23rd January, 2017, the accused filed an application for dismissal of the charges (by the Defendant) for abuse of process was heard; and was refused by the Court on the 27th April, 2017.

11.	Leave for Judicial review of the District Court decision was refused by the National Court on the 7th September, 2018 (Paul Paraka v. The State (2018) N7443.

12.	On the 13th September, 2018, the accused filed an application for the charges to be struck out for various reasons (including abuse of process).

13.	In the decision dated 6th February, 2019, the District Court refused to deal with the merits of the application, and directed the matter to progress to the substantive Committal hearing.

14.	On the 24th June, 2019, the matter came before the Chief Magistrate, who then directed the matter to progress to substantive Committal hearing.

III.	Accused Preliminary Issues

15.	When the matter was placed before me, after hearing arguments from both parties, I made a formal Order on the 25th October, 2019 for the Police brief to be formally served on the accused personally on the 1st November, 2019 (since the issue of service was contended by both parties and to cut out any doubt on the same), I also directed both parties to file written submissions.

16.	The Police brief was personally served on the accused on the 28th October, 2019.

17.	Both parties complied and filed their written Submissions on the following dates:

(a)	Accused filed on the 30th January, 2020.
(b)	Prosecution filed on the 14th February, 2020.
(c)	Supplementary Submission of Prosecution filed on the 28th February, 2020.

18.	I heard arguments inter parties on the 28th February, 2020.

19.	The decision was reserved to the 17th April, 2020; it was further differed to the 10th June, 2020 due to the Corona virus (Covid19) pandemic issue.

20.	I directed parties to file submissions on:

(a)	Sufficiency of Evidence.
(b)	And to the Defendant any other issues he wishes to bring to the court (the court would consider the other issues raised and deliberate on them if they were relevant to consider in the ruling.)

21.	I advised the Prosecution that they were at liberty to respond to other issues the accused brought in his submissions. 

IV.	Courts Jurisdiction

22.	The Committal jurisdiction of the District Court is found under Part VI of the District Court Act.

23.	The Court does not determine the guilt or otherwise of an accused person in respect of any indictable offences.  It only determines the sufficiency of the evidence in the Police brief including witnesses’ statements; and determines whether there is prima facie case for the accused to be committed for trial.

24.	Before I look at the evidence in the Police brief, I feel I must first be satisfied with the preliminary issues raised by the accused. That is whether the criminal charges have been lawfully laid by authorized Police personnel; and whether Police brief contain were served by authorized Police and the statements were taken from competent witnesses.

V.	Submissions

25.	Both Parties have filed several documents. The documents have been identified below. 

26.	The Police relied on the following documents: 

(a)	Affidavit of Timothy Gitua sworn and filed on the 24th February, 2020.
(b)	Police Brief filed and served on the 1st November, 2019.
(c)	Police Written Submission dated 14th February, 2020.
(d)	Police Supplementary Submission filed on the 28th February, 2020.

26.	In support of the accused case, the accused relied on the following documents: 

(a)	Various affidavits sworn and filed by Paul Paraka:

i.	Paul Paraka Affidavit filed on the 12th June, 2019 (PP’s Affidavit No. 1).

ii.	Paul Paraka Affidavit filed on the 7th May, 2019 (PP’s Affidavit No. 2).

iii.	Paul Paraka Affidavit filed on the 13th September, 2018 (PP’s Affidavit No. 3).

iv.	Affidavit (Search of Court Files & Service of Letters) of Paul Paraka sworn on the 5th October, 2018 and filed on the 8th October, 2018 (PP’s Affidavit No. 4).

v.	Paul Paraka Affidavit filed on the 5th November, 2018 (PP’s Affidavit No. 5).

vi.	Paul Paraka Affidavit filed on the 14th December, 2018 (PP’s Affidavit No. 6).

vii.	Paul Paraka Affidavit filed on the 18th December, 2018 (2 Volumes –Thick Affidavit) (PP’s Affidavit No. 7).

viii.	Affidavit (Denying Service of Hand-Up Brief) of Paul Paraka sworn and filed on the 19th December, 2018 (PP’s Affidavit No. 8).

ix.	Paul Paraka Affidavit filed on the 23rd January, 2017 – 2 Volumes (Volumes 1 & 2) - thick Affidavit (PP’s Affidavit No. 9).

x.	Paul Paraka Affidavit filed on the 30th January, 2020 (PP’s Affidavit No. 10).

xi.	Accused/Defendant’s Submission filed on the 30th January, 2020.

27.	I have read both parties Affidavits’ evidence and submissions fully, and I now make my ruling.

VI.	Preliminary Issues:

A.	Abuse of Process

28.	In response to the Police Hand up brief and supporting prosecution documents The Defendant has raised preliminary issues in his submissions on sufficiency of evidence, which I must consider prior to looking at the evidence in the hand up brief.

29	This issues the Defendant raises in proposition is the charges were laid improperly and whether the charges are not an Abuse of Process. This would mean the court would determine if the criminal charges are competent and Committal Court has jurisdiction. If this is not satisfied then the Committal Jurisdiction was not properly and lawfully invoked.

30.	I must first establish if I have jurisdiction to hear such arguments.

31.	The District Court in its Committal Jurisdiction is bound by the decisions of the Higher Courts. The Supreme Court has confirmed the authority of the Committal Court to determine competency issues including abuse of processes in the case of Eremas Wartoto –v- The State (2015) SC1411 before embarking on the formal committal enquiry into Police evidence. The Supreme Court laid done the law in the following terms: 

“41.	…………… It would also be appropriate to deal with any abuse of process at the investigation state and at the District Court level by the District Court.

42.	……………. The District Court is obligated to properly follow all the required steps in the process. With the assistance of the parties and any counsel, the District Court undertakes a trial in a manner that is fair to both sides and in a way that is impartial, with all the rules of practice and procedure, including those concerning the calling of witnesses, relevance of evidence called, weighing of the evidence, making findings of fact and reaching a final decision on the charge. Of course, prior to trial or if there is going to be a delay in an accused person being brought to court, the District Court has power to consider and grant bail. This is usually the case, for all summary offences or indictable offences that can be dealt with summarily.

	43.	……………. The committing magistrate needs to be satisfied that the formal requirements of the provisions under consideration are met and that there is a prima facie case for the accused to stand trial in the National Court. 

…

45.	It is fair to say the Courts in PNG have been appropriately dealing with all instances of abuse of process that have come before the courts. Going by the hierarchy of courts and their respective jurisdiction as provided for under ss 155(1) and 172 of the Constitution and based on the experience to date, we are of the view that, any abuse of process at the Police investigation stage would be appropriately dealt by the Police. Failing that, the matter could be raised at the District Court level at the first instance. The District Court has the necessary powers to deal with any abuse or an improper use of the Police investigatory process. The District Court also has the necessary powers to deal with any abuse and or an improper use of its own processes at the first instance. ……………………. Hence, we reconfirm that, each of the authorities at each of the stages have the necessary power and authority to deal with any abuse or improper use of their respective processes when a matter is before them in the due process of the law from investigations through to committal, trial and appeal or review.…

32.	I am satisfied that I have the jurisdiction to determine competency and abuse of process issues and I do now.

33.	I will consider abuse of process under the following categories:

B.	Who is The Proper Lawful Complaint

34.	The Police Complaint was initiated by the former Solicitor General (Mr. Neville Devete) on the 14th March, 2012 to the Police and does not specifically deal with any legal bills payments to Paraka Lawyers (and the accused).

35.	The Accused states the Informant had no authority to undertake any criminal investigation into Paraka Lawyers’ legal bills payments by the State and the action of the Informant is therefore unlawful.

36.	I agree with the Defence Submission that the legal brief-out of State matters is squarely on the lawful authority of the Attorney General and he decides whether to brief-out to outside law firms or not; and it is the Attorney General that decides whether to authorize the legal bills/payments for private law Firms (see section 7(i) of the Attorney General Act).

37.	The Solicitor General’s primary function is to appear as an “advocate” of the State in Courts and defend the State’s interest in all litigation matters; he only acts on the instruction of the Attorney General.  He does not act on his own.

38.	That is the legal position is the relationship between the Attorney General and Solicitor General in terms of the duties as confirmed and clarified in the Supreme Court case of Manoburn & Gelu –v- The State (2006) SC716 where the Court said (at pages 8-14):

“The Attorney-Generals Act 1989
	
This Act establishes both offices. Office of Attorney-General is established under s 2 of the Attorney-General Act. Duties, functions and responsibilities of Attorney-General are set out under s 7:

“7.	….”

This provision covers a wide range of duties, functions and responsibilities. It is necessary to refer to the relevant duties, functions and responsibilities. 

Principal Legal Advisor to the National Executive Council.

Section 7 (a) gives the Attorney-General power to perform the duties of Principal Legal Advisor (PLA) to the National Executive Council (NEC). This section is enacted in accordance with s 156 (2) of the Constitution. These functions are specifically provided under s 8:

“8.	Legal advice and opinion.

(1)	The Attorney-General, as the principal legal adviser, shall tender legal advice and opinion to the National Executive following a request to do so and shall of his own initiative give such advice where it appears to him necessary or appropriate for legal advice to be given on a matter.

(2)	The Attorney-General may tender or offer legal advice or opinion to the National Executive Council on a matter coming before the Council.

(3)	The Attorney-General may tender or offer legal advice or opinion to a Minister on a matter relating to the portfolio of that Minister.

(4)	On matters affecting the conduct of the business of the State where legal issues arise or might arise, legal advice shall be provided by the Attorney-General, either in his capacity as principal legal adviser to the National Executive or under Subsection (2) or (3) to the exclusion of all other lawyers unless the Attorney-General, in his absolute discretion, authorizes the giving of legal advice by any other person.”…

Appointment of the Solicitor General.

	The Attorney-General is granted the power to appoint the Solicitor-General in accordance with s 11 of the Attorney-General Act. This is a significant factor in considering the relationship between the two offices. Not only is the Solicitor-General appointed by Attorney-General but its functions are made subject to instructions by the Attorney-General. 

Power to Instruct Other Lawyers to Act for the State.

The Attorney-General is given power to instruct any lawyer to act for the State (s 7 (i)). This power is to be read together with the provisions relating to the functions of Solicitor-General under s 13 of the Attorney-General Act:

“13.	Function of Solicitor-General.

(1)	The primary function of the Solicitor-General is to appear as an advocate for the State in matters coming before the courts in Papua New Guinea.

(2)	In the exercise of his function under Subsection (1), the Solicitor-General shall accept instructions only from the Attorney-General.”

	This provision indicates the nature and the scope of the functions of Solicitor-General. Its main function is to “appear as an advocate for the State in matters before the courts.” This is a specific and limited function. In exercising this function, Solicitor-General shall accept instructions from the Attorney-General (s 13 (2)). 

	In practice, where the State is a party in any litigation before the courts, the Solicitor-General may act as an advocate if instructed to do so by the Attorney-General in accordance with s 13 (2) of Attorney-General Act. Where the Solicitor-General is instructed, he must act in accordance with the instructions of the Attorney-General, such as to settle or not to settle a matter. 

…

	If the Solicitor-General is served with process, he will seek instructions from the Attorney-General (s 13 (2) Attorney-General Act). He cannot act without the instructions of the Attorney-General.
	
…

It is clear from the provisions we have examined that the Attorney-General is the principal officer who represents the interests of the State in terms of legal advice or opinion and where the State is a party before the courts…”  (emphasis added).

39.	In so doing I have found no evidence that the Attorney General (at the time) authorized the Solicitor General to lodge any complaint regarding the legal bills payments to Paraka Lawyers (and the accused) to the Police.

40.	The State has admitted large brief-out to the Defendant Law Firm over the years, and has expressly sought for the legal bills to be validated as being lawfully paid.

41.	In  Telikom PNG Ltd –v- Digicel (PNG) Ltd & Others (2008) SC906 the Supreme Court said:

“101.   We do not consider that it is necessary for a defendant to be harassed or for one of a number of proceedings to reach finality for a multiplicity of proceedings to give rise to an abuse. It is the very existence of two or more proceedings involving the same subject matter that is noxious and gives rise to the presumption, rebuttable, of abuse of process.” 

C.	Who are Authorised By Law To Lay Criminal Charges

42.	The power to lay any criminal charges is vested in the Police Force under Section 197 of the Constitution.

43.	All members of the Police Force are required to exercise their constitutional function impartially and objectively (See Section 197(1) of the Constitution), and they must not act arbitrarily by allowing outside influence (See Section 197(2) of the Constitution).

44.	However, all Police Force are subject to the direction, control, command and supervision of the Police Commissioner when it comes to operational matters (See Section 198 of the Constitution).

45.	The Supreme Court has interpreted and clarified the Law in the relationship of the Police Officers and the Police Commissioner in the case of Re:  Police Commissioner’s Powers (2014) SC1388. It stated the following:

“25. 	In discharging the constitutional functions of preserving peace and good order and maintaining and enforcing the law, it is necessary for members of the Police Force to engage in criminal investigations and to lay and prosecute charges in respect of criminal offences. The process of criminal investigation and prosecution necessarily involves the exercise of powers of arrest and search and seizure, including applying to a Court for, and obtaining from a Court, warrants of arrest under the Arrest Act. Whenever a member of the Police Force exercises any of these powers he or she is, always, ultimately answerable to the Commissioner of Police.

26.	…
27.	…

28. 	We reject the view, propounded by Chief Supt Damaru, Chief Insp Gitua and Sir Toami Kulunga, that each member of the Force can decide independently all steps to take in a criminal investigation without being subject to direction or control by any person, including the Commissioner. This follows from Section 197(2) of the Constitution, which relevantly states:

	... insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.

29. 	It is clear that, at least in instances where a court does not issue a warrant of arrest or search or an order of some sort directly relating to a criminal investigation, the conduct of all criminal investigations is subject to the direction and control of the Commissioner. This includes the making by all members of the Police Force of operational decisions, such as:

•	Who to investigate?
•	What to investigate?
•	Who to arrest?
•	Whose premises to search?
•	Whose bank accounts to search?
•	Against whom to seek a warrant of arrest from the District Court?”

(Emphasis added).

46.	It is clear that the Police cannot act without the authority of the Police Commissioner.  This Supreme Court decision in its interpretation of Section 197 and 198 of the Constitution binds this court.

47.	There is clear evidence given by the accused that the Police Commissioner did not authorize the criminal investigations, and he even gave further directions to the Informant and the Sweep Team to cease the unlawful criminal investigations.  Prosecutions have not brought evidence to dispute this.

48.	It appears the Informant assumed the authority when the Police Commissioner expressly directed him to stop his unlawful actions, especially when the Police Commissioner acted on the advice of the Attorney General by his letter to him dated 6th July, 2014 (which advised the Police Force to cease and terminate the criminal investigations).

49.	The letter containing the legal advice of the Attorney General to the Police Commissioner dated 6th July, 2014 is clear, and bindings the Police Force (including the Informant).  The relevant parts (I quote from the Defence Submission at pages 57-58) reads:

“In light of the foregoing I am of the view that the payments to Paraka Lawyers are not or may not be illegal for the following reasons –

1.	There is a specific order of the National Court dated 6th February, 2007 authorising the Attorney General to deal with Paraka Lawyers on all mater of legal brief-outs, and refer any legal fees owing to Paraka Lawyers to the Department of Finance with the necessary clearance for payment.

2.	The National Court’s orders of 6th February, 2007 have not been appealed against by the State.  Moreover, there is no order of the Supreme Court staying those orders.  The orders are still in force.

3.	What has been appealed against by the State is a separate subsequent order of the National Court dated 2nd March 2007 ordering the State to immediately pay Paraka Lawyers the K6.4 million.

4.	The Supreme Court on the 5th March, 2007 specifically stayed the National Court’s orders of 2nd March 2007, pending the determination of the appeal.

5.	After 7 years the State’s appeal against the order for payment of K6.4 million was determined by the Supreme Court on the 4th July, 2014.

6.	The Supreme Court allowed the appeal and quashed the National Court’s orders of 2nd March 2007.

7.	The Supreme Court when handing down its judgment stated that its decision does not affect the National Court’s earlier orders (including the order of 6th February 2007).

8.	Legal clearances were given by the Solicitor General in early 2007 for the payment of Paraka Lawyers legal bills in accordance with clause 5 of the National Court’s orders of 6th February 2007.

9.	The ITFS Team have not disputed the validity of the legal clearances nor have they produced any evidence to the contrary, at least in the proceeding before Justice Kariko.  Regarding the clearance letters of former Solicitor General John Kumura, Justice Kariko said that “there is no evidence before me that challenge the genuineness of the letters or the accuracy for their contents…”

I have formed the opinion that material evidence that could have exonerated Mr. Paraka and others already charged in respect of the payments to Paraka Lawyers were not considered by the ITFS Team or the Police Fraud & Anti-Corruption Squad for that matter.  It must be stressed that the primary functions of the police under the Constitution are, among others, “to maintain and, as necessary, enforce the law in an impartial and objective manner” (Section 197(1)(b)).  An impartial and objective investigation would have considered all the material, both in favour of and against the prosecution’s case, before making a decision to arrest and charge those implicated.  Here, in my view, this was not done.  Material evidence that had the effect of exonerating the accused was left out without proper investigation.  The ITFS Team and the Police Fraud & Anti-Corruption Squad’s actions breached Section 197(1)(b) of the Constitution.

It is therefore appropriate and necessary for me to refer the “new evidence” to your good office to consider them and ascertain whether in fact material evidence were left out by the Investigation Task Force Sweep team when investigating the Paul Paraka Lawyers files.  I refer these materials to you as you are duty bound under the Constitution to uphold the rule of law in an impartial and objective manner.

Having said the foregoing, I wish to point out that whatever amount of payment received by Paraka Lawyers from the State is immaterial when ascertaining criminal liability.  If the payments are excessive, then the State is not precluded from remedy.  It can consider pursuing recovery under the Lawyers Act through taxation of the lawyers firm’s bills.  It is trite law and practice that disputes between lawyers and clients over legal bills are always within the National Court’s civil jurisdiction.  They are not matters for the Criminal Court’s Jurisdiction.

I trust the foregoing material will shed some light as you review the investigation files to ascertain the legality of the payments to Paraka Lawyers.”

50.	This legal advice is binding on the Police Commissioner and the Police Force, and the Informant. The Informant did not to comply with the advice of the Attorney General and the command, control and directions of the Police Commissioner.

51.	I adopt the authorative judgement of the Supreme Court in Potape –v- The State (2015) SC613; the Supreme Court said Police and Courts should not confuse administrative complaints from criminal complaints.  The Courts (including the District Court) have the power to dismiss/struck out case that is administrative in nature.

52.	The statement of the Supreme Court in Potape’s case (at paragraph 46) it the Supreme Court stated:
“46.     	Civil wrongs- actions in tort and contract that are largely found at common law. The tort of misfeasance in public office is amongst those actions available in tort: see Dunlop v Woolahra Municipal Council [1982] 2 AC 172, Henley v Mayor of Lyne (1928) 1030 ER 995. Some examples of actions founded on breach of statutory duties that give rise to a private action in tort or contract are found in the Wrongs (Miscellaneous Provisions) Act (Ch 297 ). The remedy lies in private law by way of declaratory relief, injunctions and damages or restitution. The standard of proof is on the balance of probabilities. 

It would be wrong for the Courts of law to find or impute criminality to wrongful actions that fall under the second, third and fourth categories and invoke the full force of the criminal law to punish wrongs which are lacking in criminality. It calls for great care on the part of the Court when assessing the evidentiary material placed before the Court in a criminal offence involving an element of fraud or dishonesty to ensure that the case falls into the first category and that the prosecution proves each element of the criminal offence beyond reasonable doubt before a guilty verdict is returned for the offence.”  (emphasis added)

53.	The allegations against the accused in this case fall under this category in my view.

54.	The allegations were really an administrative matter regarding dispute between the State and the accused Law Firm (Paraka Lawyers) on legal brief-out and legal bills payments. If there was a dispute as to the accused bills the appropriate measure should have been by way of taxation of cost

55.	In view of all these considerations, I am satisfied that there was a gross abuse of process by the State, its agents and Instrumentalities and the Police.

56.	I consider that the allegations by the Police are based on assumption and speculation. 

57.	I add the Informant was part of an authority (Sweep Team) that was established in breach of Section 199 of the Constitution, and the Informant lacked authority to charge the accused in the manner he did. If there were charges to be laid against the Defendant, the Informant should have sought the clearance of the Commission of Police to pursue the matter.

58.	I am satisfied from the evidence offered by the accused that the allegation was really about breach of an alleged Supreme Court Stay Order (in the payments).  Such a jurisdiction is vested in the Supreme Court under Section 160(2) of the Constitution.  Contempt of Court offences cannot be criminal offences (See Section 37(2) of the Constitution) and thus are incompetent and the District Court simply lacks jurisdiction.

VII.	Hand-Up Brief

59.	The criminal charges were in respect of payments done to the Defendant Law Firm over legal bills.  These were expressly restrained from inquiry or investigation by the State by the National Court in proceedings OS No. 876 of 2006; Paul Paraka –v- The State & others.  These National Court Orders (which were confirmed on the 6th February, 2007) have not been appealed or stayed.  The Police failed to provide any evidence to the contrary.  The Police therefore laid the criminal charges in breach of the National Court Orders.  

60.	The terms of the National Court Orders No. 3, restrains or prohibits any inquiry or investigations into the legal bills payments to Paul Paraka Lawyers.    Order No. 3 of the National Court reads:

	“3.	The Departmental Inquiry into the Attorney General’s Office on matters of brief-out and payment of legal fees is prohibited from continuing, pending the determination of the substantive judicial review.”

61.	Another reason I see is the Police brief has been served on the accused 6 years later on the 28th October, 2019.  I am satisfied that it is not possible for the accused to have unfair hearing within a reasonable time especially when most of the key witnesses have either died or left the Public Service. 

VIII.	Sufficiency of Evidence

62.	I will now look at the Police Brief briefly.

63.	I follow the accused arguments.  The Police comprises of 4 documents:

(a)	The Informant’s main brief volume (Volume 1).
(b)	Former Chief Secretary Manasupe Zurenouc’ statement – Volume 2.	
(c)	Former Manager Legal of BSP – John Maddison – Volume 3.
(d)	Former Sweep Team Statements of Opinion (of Sam Koim & Others) – Volume 4.

64.	I cannot consider evidences in Volume 2 & 3 of the investigation as both witnesses are deceased, and their evidence cannot be relied on.

65.	The last volume of Sam Koim are submissions I consider based on opinions/conjectures and hearsay.  

66.	The Public Prosecutor stated expressly in his Affidavit evidence in that case that he did not wish to lay any of the 27 criminal charges in the District Court (the struck out by His Worship M. Gauli) because the evidence was lacking.

67.	In one of the Affidavits filed by the Public Prosecutor in the National Court (and attached by the accused in his Affidavit), the Public Prosecutor said:

“(h)	I did not consider that the charges laid in the initial information were appropriate, however in accordance with the powers outlined in section 526, I made a determination to lay a different charge.  That charge however, is not novel to the Accused, and no prejudice flows.  The charge proposed to be laid, is what I consider the appropriate charge arising from the evidence presented at committal, and the general nature of the case remains the same.”

68.	I will now look t the evidence against the charges and  address each of the charges (as a group) as follows:

IX.	Charges

A.	Conspiracy to Defraud

69.	There are 10 charges for Conspiracy to Defraud under Section 407(1)(b) of the Criminal Code Act.

70.	These are all in similar terms (in the accused’s submissions at pages 126-136).

71.	Section 407(1) provides:

“407. 	CONSPIRACY TO DEFRAUD.

(1) 	A person who conspires with another person–

(a)	by deceit or any fraudulent means to affect the market price of any thing publicly sold; or
(b)	to defraud the public, or any person (whether or not a particular person); or
(c)	 to extort property from any person, is guilty of a crime.

Penalty: 	Imprisonment for a term not exceeding seven years.”

72.	The Supreme Court in Potape –v- The State (2015) SC1613, identified the 6 correct elements of the offence that require proof under Section 407(1)(b) of the Criminal Code Act as:

(a) 	the accused person 
(b)	conspired with other persons 
(c) 	by deceit or any fraudulent means 
(d) 	to defraud the public or any person 
(e) 	of any property 
(f) 	property belonging to that other person.

	Elements

(a)	Element 1:	Accused person

Issue:		Is Accused identified?

Answer:	Yes.

(b)	Element 2:	Conspired with other persons

Issue:		Did the accused conspire with other persons?

Answer:	No direct evidence from any witnesses (from both Finance and Solicitor General’s Office). No evidence that there was conspiracy between the accused and any named persons in the conspiracy theory.

(c)	Element 3:	By deceit or any fraudulent means

Issue:	Were the offences committed by deceit or any fraudulent means?

Answer:	NO – there is no direct evidence from any witnesses from the Finance Department or Solicitor General’s Office of any deceits or fraudulent means the claims were made and moneys paid.

(d)	Element 4:	to defraud the public or any person 

Issue:	Did the accused intended to defraud the State or Public of its funds?

Answer:	NO – there is no evidence that the accused intended to defraud the State of its funds.

(e)	Element 5:	Of any property

Issue:	Any evidence as to how the accused conspired to defraud of the State money?

Answer:	NO – there is no evidence that the accused conspired to defraud the State some monies.

(f)	Element 6:	Property belonging to that other person

Issue:	Are there any evidence that money belonged to State, and was paid?

Answer:	NO; there is no evidence.

(g)	Element 7:	Is guilty of a Crime?

Issue:	Is there evidence that the accused is guilty of a crime?

Answer:	NO.

B.	False Pretense

73.	There are 6 charges for false pretense - (See Police Brief and pages 136-143 of the Defendant’s Submission).

74.	All the charges are in similar language as was struck out by my brother Gauli in his case, and rejected by the Public Prosecutor.

75.	Section 404(1)(a) of the Criminal Code Act read:

“404. 	OBTAINING GOODS OR CREDIT BY FALSE PRETENCE OR WILFULLY FALSE PROMISE.

(1) 	A person who by a false pretence or wilfully false promise, or partly by a false pretence and partly by a wilfully false promise, and with intent to defraud–

(a)	obtains from any other person any chattel, money or valuable security.”

76.	There are 7 elements requiring proof under Section 404(1)(a) of the Criminal Code Act are:

(a)	   At a time and place
(b)	By false pretence 
(c)	With intend to defraud
(d)	Obtained 
(e)	From another person
(f)	Any chattel; money or valuable security. 

77.	These charges are set out in the Police brief and the accused’s Submission (pages 137-147).

	Elements

(a)	Element 1:	The Accused

Issue:	Is Defendant the Accused?

Answer:	Yes.

(b)	Element 2:	At a time and Place

Issue:	Does the evidence show the time and place the offence was committed.

Answer:	NO – there is no evidence from anyone at the Finance Department and Solicitor General’s Office, of exactly what time and place the offences were committed.

(c)	Element 3:	By False Pretense

Issue:	Any evidence that legal bills were false?

Answer:	There is no evidence that the legal bills were false.
	
I add the allegation that legal bills were paid in breach of a Supreme Court Stay Order; such is a contempt of court offence and can only be raised in the Supreme Court jurisdiction (ss.37(2) and 160(2) Constitution).

(d)	Element 4:	With Intend to Defraud

Issue:	Is there any intention on the accused to defraud?

Answer:	NO – No evidence of any intention to defraud.

(e)	Element 5:	Obtained

Issue:	Did the accused obtain the funds by false pretense?

Answer:	No evidence.

(f)	Element 6:	From another person

Issue:	Did the accused obtain funds from other persons?

Answer:	No evidence.

(g)	Element 7:	Is guilty of a crime?

Issue:	Is accused guilty?

Answer:	NO; No evidence.

C.	Misappropriation

78.	There are 3 charges for misappropriation.  These are set out in the Police brief.

79.	Section 383A of the Criminal Code Act reads:

“383A. 	MISAPPROPRIATION OF PROPERTY.

122(1)  A person who dishonestly applies to his own use or to the use of another person–

(a)	property belonging to another; or

 (b) 	…”

80.	There are 5 sets of elements requiring proof under Section 383A(1)(a) of the Criminal Code Act:

(a) 	the accused person 
(b) 	applied to his own use 
(c) 	property 
(d) 	belonging to another person 
(e) 	the application was dishonest.

Elements

(a)	Element 1:	The accused person

Answer:	Yes; it applies.

(b)	Element 2:	Applied to his own use

Issue:	Did the accused applied State funds for a certain purpose to his own use?

Answer:	NO – there is no evidence.

(c)	Element 3:	Property

Issue:	What property?

Answer:	There is no evidence that the accused used the State’s funds meant for other purposes.

(d)	Element 4:	Belonging to another person

Issue:	Who was that money for?

Answer:	There is no evidence.

(e)	Element 5:	The application was dishonest

Issue:	Was the funds applied dishonestly?

Answer:	There is no evidence.

(f)	Element 6:	Is guilty of a crime?

No.  Evidence do not disclose a crime.

D.	Money Laundering

81.	The accused was charged with 3 offences for money laundering under Section 34(2)(a) of the Proceeds of Crimes Act 2005 (POCA 2005).

82.	Section 34 of the POCA 2005 reads:

“34.   MONEY –LAUNDERING.

(2)	A person engages in money –laundering if the person –

(a) 	engages, directly or indirectly, in a transaction that involves money, or other property, that the person knows, or ought reasonably to know, to be proceeds of crime.

(b) 	receives, possesses, disposes of or brings into Papua New Guinea money, or other property, that the person knows, or ought reasonably to know, to be proceeds of crime; or

(c) 	conceals or disguises the source, existence, nature, location or control of money, or other property, that the person knows, or ought reasonably to know, to be proceeds of crime.

(3) 	A person who engages in money –laundering is guilty of an offence.

Penalty: 	If the offender is a natural person –a fine of K100, 000.00 or imprisonment for 20 years, or both; or

If the offender is a body corporate –a fine of K500, 000.00.” 

83.	The elements of money laundering are:

(a)	Person.
(b)	Engages, directly or indirectly
(c)	In a transaction that involves money, or other property
(d)	Accused knows, or ought to reasonably know
(e)	To be proceeds of a crime

84.	These sets of charges have been rejected by the Public Prosecutor in the other cases involving the same accused and dealt with by my brother Gauli in the District Court proceedings NCC No. 942-956 of 2014; Senior Constable Pius Peng –v- Paul Paraka (and discussed in the National Court proceedings CR (FC) No. 118 of 2019; The State –v- Paul Paraka).

85.	These 3 offences are set out in the Police brief 

86.	The old POCA 2005 has been repealed and replaced by the new Proceeds of Crimes (Amendment) Act 2015.  The Police did not amend the charges to show consistancy with the new Act.

Elements

(a)	Element 1:	Person

Issue:		Was it the accused?

Answer:	Yes.

(b)	Element 2:	Engages, directly or indirectly

Issue:		Did accused engage directly or indirectly?

Answer:	NO – there is no evidence.

(c)	Element 3:	In a transaction that involves money, or other property

Issue:	Did accused engage in a transaction that involves money or other property?

Answer:	NO – there is no evidence.

(d)	Element 4:	Accused knows, or ought to reasonably know

Issue:		Does accused know or ought to reasonable know?

Answer:	NO – there is no evidence.

(e)	Element 5:	To be proceeds of a crime

Issue:	Were the funds/payments amount to proceeds of a crime?

Answer:	NO – there is no evidence.

X.	Conclusion

87.	On the evidence, there is really no evidence at all to support the elements of all the 22 charges.

XI.	Orders

1.	All the 22 criminal charges are dismissed forthwith for abuse of process and the police failing to sufficiently showing evidence to establish the charges.

2.	These findings are made in a burden less than the criminal burden of beyond a reasonable doubt

3.	The accused is therefore discharged forthwith and all his bail conditions are discharged.

4.	The accused bail money of K50, 000.00 is refunded to him forthwith.

WILMOT, DCM
Waigani