DC7040
Papua New Guinea
 
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION
 
COM NO 1186-1189 OF 2021
CB NO 2462 OF 2021
 
BETWEEN:
 
ALFRED KAMBAE
[Informant]
 
AND:
 
CAROLYN BLACKLOCK
[Defendant]
 
Waigani: Paul Puri Nii
 
20th December 2021
 
COMMITTAL PROCEEDINGS: -Charge- Misappropriation -Section 383 A (1)(a), False Pretense-404(1)-Forgery-462(1) and Conspiracy - 407(1) of the Criminal Code Act 1974, Chapter No. 262. Police investigators may provide prima facie clear evidence clarifying and backing the elements of the charges against the Defendant to fulfill the obligation under the law.
 
PRACTICE AND PROCESS: Satisfactory requirement for prima facie Case-Continuation of underpinning of the charges–State witnesses –Record of Interview-Defendant-Defendant acting Managing Director of PNG Power - Accusations of misappropriation of K1, 768 448.25, False Pretense- Forgery and Conspiracy. Contemplation leads to inadequate Evidence-Defendant is exonerated from the charges.
 
PNG Cases cited:
 
Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
Yaruma v Eugua [1996] N1476
Police v Kennedy [2021] PGDC 161; DC7017 (18 November 2021)
Police v Kambian [2021] PGDC 66; DC 6021 (30th January 2021)
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Japele v Raka [2021] PGDC 166; DC7022 (23 November 2021)
State v Kepo [2019] PGNC 74; N7807
Police v Dickson [2021] PGDC 118; DC6073 (25 August 2021)
Moere v Carden [2021] PGDC 163; DC7019 (22 November 2021)
Anthon v Chea [2021] DC 6056
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Yarum v Egua [1996] N1476
Police v Dunamis [2021]PGDC 121; DC 6067
Police-v-Kimisopa [2021] PGDC 76;DC 6031(30th June 2021)
Hiviki v State [2015] SC 1449
State v Kepo [2019] PGNC 74; N7807 (23 April 2019)
Muga v Nayabbanung [2021] PGDC 156; DC7011 (10 November 2021)
Salle v Bosco [2021] PGDC 164; DC7020 (22 November 2021)
Police v Jaruka [2021] PGDC 90; DC6044 (21 June 2021)
Natpalau v Tulong (1995) PNGLR 329
 
Overseas cases cited:
 
Madhosingh Daulastsingh v State of Bombay (1960-I –LLJ 291)
Queen v Himingway [1955] SCR 712
Gaysek v R [1971] SCR 888
WorkPac Pty Limited v Rossato  [2020] FCAFC 84
 
References
 
Legislation
 
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Whistleblowers Act 2020
 
Counsel
Police Prosecutor:                        Chris Iga                 for the Informant
Young and William Lawyers:        Philip Tabuchi          for the Defendant

RULING ON COMMITTAL
 
20th December 2021
 
INTRODUCTION

NII, P. Paul Magistrate. My decision on whether a prima facie occurrence is carefully established inside the meaning of Section 95 of the District Court Act 1963. The decision is arrived at after parties’ opinions are sensibly measured. Lawyers for the accused resisted and opposed the prosecution case that evidence is deficient to create an instance against the alleged perpetrator while the State argued strongly that they have a case against the Defendant. I have carefully assessed both sentiments encompassing in respect to police cases and accordingly under the few lines is the pronouncement concerning the subject upturned.
 
FACTS/PARTICULARS
 
1.	Information lodged by State against the Defendant reveals, Defendant is aged 48 years and from Australia who was at the time of arrest was living at Allotment 5, Steipel Road, 15 Mile in Central Province.
 
2.	The Police through the Complainant Brian Kramer alleges that in August 2017, accused was employed by Cardno PNG under the PNG Australia Economic and Social Infrastructure program as a specialist advisor to PNG Department of Prime Minister and NEC on infrastructure and Major initiatives. Police allege that on 22nd December 2017, the PNG National Executive Counsel (NEC) resolved to appoint the accused as a/Managing Director of PNG Power to perform the duties of the managing Director while on secondment from the department of Prime Minister and NEC.
 
3.	It was alleged that on 17th January 2018, Minister for State owned Enterprise William Duma announced at a press conference that accused commence her role on 15th January 2018 and in, accordance with the directives with NEC, Kumul consolidated holdings limited would advertise the position for the Managing Director of PNG Power Limited in the open market to allow a suitable candidate to apply for the Position. Police then went on to say that while on secondment as an advisor with the Department of PM & NEC, maintained her employment with Cardno PNG, accused informed members of PNG power board her appointment as acting Managing Director was at no cost to PNG Power.
 
4.	Police allege in August 2018, Defendant and Mr Nupiri conspired to fabricate a contract of employment for the position of Acting Managing Director of PNG Power Limited without notifying PNG Power Limited and Kumul Consolidated Holdings Limited Boards as well as NEC. On 28th August 2018, the contract of the accused's engagement with PNG Power was signed by Mr Nupiri in his capacity as Chairman of PNG Power Limited and Defendant in her capacity as acting Managing Director.
 
5.	Police maintained that between December 2018 and August 2019, accused relying on the fraudulent contract directed PNG Power Limited staff to pay her sum of K1, 768, 448.25, being purported back date while receiving salary under existing contract with Cardno PNG. On 28th August 2019, after some 20 months into the role as acting Managing Director of PNG Power, the accused then tendered her resignation effective immediately. Police says during the Defendant’s 20 months’ term as acting Managing Director of PNG Power Limited, she was still seconded form the Department of PM and NEC under Contact with Cardno PNG and received salary and benefit under her existing contract of employment.
 
6.	Police further says Defendant was to assume the role as Acting Managing Director of PNG Power until a substantive appointment was made. Defendant was never duly appointed to the substantive position nor did the PNG Power board, Kumul Consolidated Holdings Limited Board and NEC resolved to appoint her but she conspired with PNG Power board chairman Peter Nupiri and fabricated a fraudulent contract of employment and facilitated the fraudulent payments to the accused in false pretense that she entitled to outstanding remuneration and termination pay. Police also said the PNG Power board failed to notify nor consult the PNG Power Limited Board about the Defendant’s engagement. 
 
7.	The Defendant was subsequently arrested and charged for the offense of Misappropriation under Section 383A(1)(a), False Pretense under Section 404(1), Forgery under Section 462(1) and Conspiracy under Section 407(1)(b) of the Criminal Code Act.
 
PRELIMINARY APPLICATION
 
8.	The substantive matter was fixed for hearing on the 17th December 2021 endorsed by a consent order on the 25th November 2021. However, on the date of hearing, the Prosecutor had filed an application under Sections 5, 20 and 22 of the District Court Act for the court to disqualify itself because of reasonable apprehension of bias and perceived conflict of interest. The application was filed by the informant while the affidavit in support was filed by the Complainant Brian Kramer. The Complainant alleged that the court is a close friend of Peter O’Neill and an associate and thus would have some connotation in the Defendant’s case since the Defendant is employed by Peter O’Neill. Moreover, Complainant says the court did an affidavit in support of Peter O’Neill in the allegation against him in the National Court and his referral to the Ombudsman commission.

9.	 I have considered the application by the police and read the affidavit but the application is an abuse of process and without merit and of no ingredient. The Applicant did not provide any evidence of the court’s undeviating association and being a close friend to Peter O’Neill than referring to an Affidavit which the court did in support of a case filed by Peter O’Neill against the Applicant. On 12th February 2020, the court was contacted by Mrs Tiffany Twivey Nongorr to confirm the status of the court’s dissolution of employment with its past employer by the Police Commissioner David Manning on whether it had anything to do with Political Interference with the former Minister of Police and this the court provided to her an affidavit.  Defendant has nosedived to divulge the court’s acquaintance with Peter O’Neill and also there is no direct evidence of the court being a friend to him. The court will not entertain hypothesis and superficial grounds to derail the administration of committal process.

10.	Complainant’s attentiveness in the accusation against the court is mistrustful and of no connotation and in the absence of any unswerving or tangible evidence, the court will not entertain assumptions and suppositions.    
 
11.	Moreover, the application was filed at the 11 hour (last minute) when the matter was fixed for hearing through an order of Court dated 25th November 2021. Such an application should have been filed before the matter was fixed for hearing. Furthermore, there is no nexus in the application since the motion was filed by the case informant while Affidavit in support is form the Complainant. Complainant should not have a detached interest in the case but his interest should be the police interest and therefore such an application should come from police and not from an outsider. 

12.	The court is also informed that even though the application was defective ab initio (from the beginning), the Police hierarchy insisted that the application should be heard. Why was there a rush? The Court has its own process and procedures which are not to be abused.

13.	 Finally, police should have filed an application to vacate committal hearing and if application was granted then they should have proceeded with their motion to have the court disqualified. This was not done and thus among other grounds, the Notice of Motion to have the court disqualified is in itself an abuse of process and of no virtue and is consequently refused and the matter is now proceeded to committal hearing.
 
SUBSTANTIVE HEARING
 
CHARGES
                                   
13.	Accused is charged with one count each of Misappropriation under Section 383A (1)(a), and Conspiracy under Section 407(1)(b) and Abuse of Office under Section 92(1) and False Pretense under Section of the Criminal Code Act 1974, Chapter No. 262. The charges against the Defendant are moreover visible in the consequential mode:
1.    “383A-   Misappropriation of Property.
 
[1](1) A person who dishonestly applies to his own use or to the use of another person-
(a) property belonging to another is guilty of the crime of misappropriation of property.”
 
2.    “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; or
(b)      induces any other person to deliver to any person any chattel, money or valuable security, is guilty of a crime.”
 
3.    “462.       Forgery in general: punishment in special cases.
 
(1) A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.”
 
4.    “407-       Conspiracy to defraud.
 
(1) A person who conspires with another person–
 
(b) to defraud the public, or any person (whether or not a particular person) is guilty of a crime.”
 
ISSUE
 
14.	Question for contemplation is whether police indication in the Police Hand-Up-Brief is satisfactory to commit the accused of the charges against her.
 
THE LAW
 
15.	Provisions of the Law under Sections 94-100 of the District Court Act 1963, provides seemingly course on how police evidence in the Police-hand-up-brief shall be reflected by court. The court should then in the implementation of its judicial authority should judiciously assess police evidence consistent with the defense arguments and arrive at a pronouncement which is applicable in the circumstances on a prima facie basis.

16.	 Many courts (both District and Higher courts) in our jurisdiction have emphasized the prominence of the committal court’s purpose under the district Court Act and one such case is in Akia v Francis [2016] PGNC 335; N6555. His honor Gavara-Nanu, J, ruled that committal court progresses its power by considering prosecution evidence in the HUB to declare whether evidence mollifies elements of the subject charges against the Defendant. The above locus is also reinforced in Police –v- Dunamis [2021] PGDC 121; DC 6067, and Salle v Bosco [2021] PGDC 164; DC7020 by connecting to Section 95 of the DCA, since it is where this court will now base its footing to rule on the police evidence.

 
ELEMENTS OF THE OFFENSE
 
17.	The court in Police v Kennedy [2021] PGDC 161; DC7017 braced the attitude taken in Police –v-Kambian [2021] PGDC 66; DC 6021 and Police –v- Medako [2021] PGDC 54; DC6011 on the prominence of police evidence meeting the elements of the subject burdens imposed on the Defendant by police. The court will now in the application of its jurisdictive power will go through all the separate charges laid against the Defendant with the equivalent evidence and adopt whether or not police evidence is satisfactory to make a prima facie case against the Defendant by meeting all the elements.
 
18.	The case of Muga v Nayabbanung [2021] PGDC 156; DC7011 affords the elements of Misappropriation under Section 383A(1)(a)[i] as trails which I will espouse for the tenacity of my ruling:
 
a.    A person
b.    who dishonestly
c.     applies to his own use or
d.    to the use of another person
e.    property belonging to another
 
19.	The court in Police v Jaruka [2021] PGDC 90; DC6044 adopted the principles in State v Kepo [2019] PGNC 74; N7807 and established element of False Pretense under Section 404(1)[ii] but the wider elements are shown below:
 
a.    A person
b.    who by a false pretence or
c.     wilfully false promise,
d.    or partly by a false pretence and
e.    partly by a wilfully false promise,
f.      and with intent to defraud obtains
g.    from any other person any chattel,
h.    money or valuable security; or induces any
i.      other person to deliver to any person
j.      any chattel, money or valuable security,
 
20.	The elements of Forgery under Section 462(1) [iii] is showing below:
 
a)    A person
b)    who forges
c)     any document, writing or seal
 
21.	The court in Japele v Raka [2021] PGDC 166; DC7022 proved the elements of Conspiracy under Section 407(1)(b)[iv] which I contemplate indispensable to implement in my decision. I have paraphrased the elements below:
 
a.    A person
b.    who conspires with another person
c.     to defraud the public, or
d.    any person (whether or not a particular person)
 
EVIDENCE

22.	The court in Moere v Carden [2021] PGDC 163; DC7019 implemented the principles in Police –v- Koka [2021] PGDC 53; DC6010, considered on the position of police evidence that it plays an authoritative part in the administration of criminal justice at the committal court. The strength of the police case is built upon the Police file and the court further went on to state that: ….
 
…. “An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ….
 
PROSECUTION CASE
 
23.	The doctrines in Police-v-Kimisopa [2021] PGDC 76; DC 6031 validates the contents of the police file. The court says the police file constitutes the record of interview, confessional statements (if they were any), witness statements and photo exhibits including documentary evidence.   
 
Police evidence in brief
 
No	Names	Designation	Statements	
1	Brian Kramer	Member for Madang and Minister for Justice.	He is the Complainant in this allegation against the Defendant and his evidence is based on the information that he received and his own findings into the allegations against the Defendant and his complaint to the Police. 	
2	Chey Scovell	Director and Board member of PNG Power Limited	Witness explains how the Defendant was engaged by PNG power and clearly explains the process involved in her appointment with PNG Power. Witness says the Board resolved in their meeting to confirm an acting CEO and for management to progress all required legal processes so Defendant could perform in the role as directed by NEC. This witness says Defendant was engaged by PNG power on a non-remunerated contract or as a short term contract holder.	
3	Leo Meninga	Director and Deputy Chairman of PNG Power Limited	Witness says she was informed by the Defendant inside the board room of PNG Power that she would not be paid by PNG Power since she was collecting salaries form Cardno PNG International. Witness also says he did not have the benefit of seeing the Defendant’s contract.	
4	Prashant Shastri	Director of PNG Power Limited	His statement is the same as Leo Meninga’s statement except that he heard PNG Power finance paid her out upon her resignation.	
5	Michael Savinio	Manager employment benefits and support of PNG Power Limited	Witness says he provided police with a copy of the Defendant’s contract of employment and payroll summary after a search warrant was issued on the PNG Power by Police. He says he had also provided minutes of board meetings and other documents which are now in the police file containing evidence against the defendant.	
6	Sawong Ranga	Commercial Lawyer (Board Secretary) Kumul consolidated	Witness says he told Policemen Charles Winuan and Alfred Kambae about what he did to the search warrant and documents collected for the search. Witness also says there is no document held by Kumul Consolidated Holdings about the Defendant’s engagement with PNG Power and also there is no notice of recommendation and approval form KCH giving effect to her engagement.   	
7	Moses Maladina	Acting Chairman of Kumul Consolidated Holdings	Witness says he was informed by KCH Board Secretary Mr Ranga Sawong that there was no record of a contract of employment of the Defendant as managing Director of PNG either tabled or approved by KCH.	
8	Zoma Eki	Police corroborator	This is a Police witness who says he was with the arresting officer at the time when Defendant was interrogated.	
9	Alfraed Kambae	Case informant	Police arresting officer or the investigator who arrested the Defendant and charged her for the allegations of Misappropriation, False Pretense, Forgery and Conspiracy.	
 
DEFENSE CASE
 
24.	The Defendant through her Lawyer argued that evidence is not ample to make a prima case against the Defendant for the allegations against the Defendant. Defendant through the case of Yaruma v Eugua [1996] N1476, applied his honor Aukaram, J’s view on Section 95 of the District Court Act that the committal court should necessitate appropriate and equitable valuation of the evidence to ascertain whether or not all the ingredients of the offenses are present. Moreover, the defendant has cited a number of cases comprising among others in Hiviki v State [2015]SC 1449 and Natpalau v Tulong (1995) PNGLR 329 clarifying the committal court’s occupation under the law.

25.	Defendant further went on to say that Complainant Brian Kramer’s statement is defective and thus it does not evidently institute the elements of the offenses. Defense says the evidence of the Complainant has no probative value and moreover Defendant takes issue on the Complainant’s name that he should have been spelt “Bryan” Kramer which is his legal name than “Brian” Kramer which is wrong and hence asked the court to dismiss the information. Defense cited the case of Anthon v Chea [2021] DC 6056 in support of his argument.

26.	Defendant asked the court not to accept the evidence of witness Chey Scovell since whatever stated by him is all hearsay since this witness was only relaying messages from the former Prime Minister and chairman. Defense says there is no evidence against the Defendant from the former Chairman of PNG Power Limited nor Minister Duma but witnesses merely depended on a statement of a whistle blower which in itself is vague and does not clearly establish any elements of the allegations.

27.	Defense also says the remaining statements of Leo Meninga be refused as they beached the mandatory requirements under Section 94 (1A)[v] and also the Statements of Michael Savino and Ranga Sawong as irrelevant for the purpose of court’s assessment under Section 95 of the DCA.   Finally, Defendant says the evidence of Moses Maladina not to be relied upon since all is hearsays.
 
28.	In summary Defendant through her lawyer submits evidence is insufficient to make a case against the Defendant for the charges of Misappropriation under Section 383A(1)(a), False Pretense under Section 404(1), Forgery under Section 407(1)(b) and Conspiracy under Section 407(1)(b) of the Criminal Code Act.
 
CONSIDERATION OF EVIDENCE
 
29.	Defendant has raised an issue on the name of the Complainant. Defendant says the Complainant is not the same as the Member for Madang since the Complainant’s name is spelt as “Brian” Kramer while the member for Madang’s name is spelt “Bryan” Kramer. I have considered the issue raised but it does not change the evidence nor the name and particulars of the Complainant. There is a slight change but that does not rely matter since the Complainant has filed an allegation against the Defendant and thus the issue of incorrect name is refused but that does not mean I will accept the Complainant’s statement; the statement will be distinctly assessed to ascertain it meets the elements of the offense.
 
Brian Kramer
 
30.	Witness is the Complainant in this matter. Complainant alleged Defendant was not entitled to a contract of employment to receive remuneration as acting Managing Director of PNG Power Limited. Complainant says Defendant was an advisor with Cardno PNG and thus not eligible to enter into employment contract not to be paid in her capacity as Acting Managing Director of PNG Power. Witness finally says, Defendant conspired with Peter Nupiri and fraudulently signed the employment contract sometime in August 2018 and thus was paid by PNG Power while also paid by Cardno PNG and thus amounts to double dipping.
Scovell Chey

31.	Statement of Scovell Chey says he was in a special board meeting No 5 of 2017 on 19th October 2017 and the former Board chairman of PNG Power Limited Mr Ogil advised the board through a letter from minister William Duma that Defendant was engaged by the former PM as an advisor to PNG Power Limited.  Mr Scovell also says the former board chairman advised the broad that Defendant was an Aid worker and he went on to state at paragraph 8 of his statement that the board resolved in their meeting to confirm the acting CEO and for management to progress all required legal process so Ms Blacklock could perform in the role as directed by NEC. This witness further went on to state that Defendant was to sign a short-term contract which was non-remunerative as per the advice form NEC but on 30th August 2018, the new chairman Mr Nupiri advised the board that the Defendant signed her contract. Mr Nupiri advised the board that the contract was executed between KCH and Defendant and it was at the discretion of KCH whether to release the Contract or not.

32.	Witness says he received an unsigned envelope form a whistle blower and in the envelope it appeared to be payment from PPL and Cardno to Ms Blacklock and her PPL Contract.
 
Leo Meninga & Prashant Shastri
 
33.	The statements of Leo Meninga and Prashant Shastri are not relevant here since they contravene the principles in the case of Anthon v Chea[vi] and the requirements under Section 94(1A) of the District Court Act, since there is no certification clause confirming whether or not witnesses had heard and understand their statements before signing it. It is a permissible prerequisite under the law that there should be appropriate evidence of any maker of the declarations understanding the contents of their own statements. This is fundamentally to make sure that the declarations are legitimately before the court.
 
Michael Savineo
 
34.	This witness says he is the Manager employments and Benefits with PNG Power Limited who provided a copy of Defendant’s contract of employment and payroll summary of payments and pay slip and calculation sheets.  Witness has provided all these after police served him a search warrant.
 
Sawong Ranga
 
35.	Witness says he is a Lawyer and Board Secretary with KCH who provided documents to police after he was served with a search warrant. This witness has confirmed that there is no authorization, endorsement and recommendation by KCH on the appointment of the Defendant as the acting CEO of PNG Power. 
Moses Maladina
 
36.	 Witness is the current acting chairman of KCH. Mr Maladina’s statement is a reflection of what he heard from another person regarding the Defendant’s employment particulars with KCH. Mr Maladina heard from the former chairman of KCH and board secretary that there were no records for the Defendant’s engagement with PNG Power Limited. This evidence is hearsays since he heard from someone else
Eki Zoma & Aldred Kambae

37.	These witnesses are policemen. Their statements are all about what happened during Police interrogation when the record of interview was administered and the Police corroborator or police man who was accompanying the arresting officer at the time of arrest and the subsequent charge.
RULING

38.	Defendant was charged with 4 charges all under the Criminal Code Act. The charges are Misappropriation under Section 383A(1)(a), False Pretense under Section 404(1), Forgery under Section 407(1)(b) of the Criminal Code Act. All the four (4) allegations shall be addressed unconnected in my ruling.
 
First allegation-Misappropriation(Dishonestly Apply) under Section 383A(1)(a)[vii]
 
39.	Misappropriation is demarcated by Oxford dictionary as the unlawful, inappropriate and illegitimate use of funds or property for other purposes than what it was proposed for. The wider definition is now revised and used under Section 383A(1)(a)[viii] as someone who untruthfully put into his/her own use or to the application of some other people possessions belonging to another.
 
The Complainant of Brian Kramer supported by Chey Scovell says Defendant conspired with former board chairman Peter Nupir by falsely forging the contract documents and thus Defendant was paid more than a million kina by PNG Power Limited.
 
40.	Evidence shows Defendant had entered into a contract of Employment with PNG Power Limited on 28th August 2018 which would have a retrospective effect to 22 December 2017 and resigned sometime in August 2019. A contract of employment is an agreement between an employer and employee and is the basis of the engagement relationship. A contract is between an employee and an employer. It has ascended out of the ancient master servant law used before the 20th century in the UK.

41.	 Evidence also shows on 9th July 2019, the defendant was paid K27, 690.61 and on 30th July 2019, she was paid K485, 422.49 by PNG Power Limited. On 24TH July 2019, Defendant was paid K9,456.95. Defendant’s gross salary per annum at the time was K1.2 million as shown in the contract of employment. There were also other payments made to the Defendant by PNG Power apart from the above which are consistent to the Contract of employment which adds up to more than K1 Million.
 
42.	Evidence shows the monies were paid by PNG Power Limited to the Defendant by virtue of her contract of employment with PNG Power Limited. Police have not provided evidence that Defendant was paid without a contract of employment. I have read the contract of employment and found out that Defendant’s payment by PNG Power Limited is well quantified within the terms of her contract of employment and thus she was legally paid by PNG Power.

43.	In order to qualify for the offense of Misappropriation the elements of the offense must be met by police evidence.  Defendant is identified as the person she was but she was paid through a lawful contract of employment with PNG Power limited. and thus there is no evidence that she corruptly applied for her own use since she did not abuse her past employment for her personal gains or to the use of another person's money belonging to PNG Power Limited.

44.	 However, their allegation is Defendant conspired with board chairman Mr Nupiri and entered into a contract of employment and subsequently paid herself while she was still involved with Cardno PNG and being paid by Cardno PNG.

45.	Evidence shows the Board of PNG Power was aware that Defendant was employed with PNG Power limited and was paid. If the allegation raised now had some associations with the Defendant’s contract of employment with PNG power, then why was it not raised with police at the time rather than keeping things to themselves until the change of management within PNG Power Limited? There is no evidence that any of the Board members of PNG Power Limited had lodged any complaint with Police nor to NEC to revoke the appointment of the Defendant. 

46.	The Bombay High court of India in Madhosingh Daulastsingh v State of Bombay (1960-I –LLJ 291) ruled an employee’s faithfulness and trustworthiness in the discharge of their duties with their employer is to confirm the relationship they have with their employer. The court went on to state that any misconduct of such duties would warrant their dismissal. Evidence shows Defendant since her engagement with PNG Power had performed her duties to confirm the relationship she had with her employer. If there was any misconduct during her term with PNG Power limited, then the Board could have terminated her employment but that did not happen until she resigned.

47.	The statement of witness Chey Scovell established the employment of acting CEO now Defendant and for management to advance all compulsory legal processes so Defendant could perform in the role of CEO as directed by NEC. The witness is acknowledging the Defendant's employment but alleging double dipping and flaws in the contract of employment. The issue of flaws in the contract of employment and double dipping will be addressed later.

48.	 In the application of my powers under Section 95 of the District Court Act, I have considered the evidence in respect to the allegation of Misappropriation and found out that Police have not produced satisfactory evidence meeting the elements of the allegation to make a facie case against the Defendant that she had untruthfully put into her own use or to the application of some other people possessions belonging to another. Evidence shows the money was lawfully paid under an existing contract of employment between the Defendant and PNG Power Limited. Moreover, evidence shows Defendant did not initiate the contract herself or force someone to do her a contract of employment with PNG Power but the Contract was brought to her by PNG Power Limited after approval from NEC. Money was paid within the contractual time frame and not outside of the contract of employment. Thus under Section 95(2) of the District Court Act, the allegation of Misappropriation under Section 383A(1)(a) is dismissed.

 
Second allegation-False Pretense under Section 404(1)[ix]
 
49.	The allegation of false pretense in the broader sense refers to any comportment that is envisioned to mislead and deceive others. The Definition under the Criminal Code Act referred to as the perpetrator by false pretense or intentionally false promise obtained property from the complainant with intent to Defraud.

50.	In some other jurisdiction, the offense of false pretense is defined as representation, either by words or otherwise, of a matter of fact either present or past, which representation is known to the person making it to be false, and which is made with a fraudulent intend to induce the person to whom it is made to act upon such representation.

51.	By definition under the Criminal Code Act and other jurisdiction, the false representation should be made against an interested person. The Complainant should be the victim of the false representation and not any other interested persons. In Queen v Himingway [1955] SCR 712, the British Columbia court of appeal upheld the appeal and quashed the conviction of the lower court. In this matter the vendor sued the Appellant for False pretense. The key consideration here is the affected party should institute proceedings and thus in the above case it was the vendor who had lodged a criminal complaint against the accused since he was affected and subsequently the vendor succeeded with a conviction but it was overturned by the higher court.

52.	A person’s action or implied conduct should either openly or indirectly affect the rights and interest of another person. Who was affected here?  Evidence shows PNG Power Limited was purportedly affected. 

53.	Defendant was employed by PNG Power Limited under a contract of employment. The allegation was made against the Defendant for being illegitimately employed with PNG power among other allegations. With dependability to the elements of the offense of False Pretense and its strict definition, the allegation should affect the Complainant. Evidence shows the Complainant against the Defendant was lodged by Brian Kramer who is not an employee of PNG Power Limited nor a board member and Minister responsible for PNG Power limited. The affected party or Complainant should be someone who is allegedly affected by the Defendant’s actions and thus would be deemed to have an interest in the allegation and that person should be the Complainant. Evidence shows neither employee of PNG Power Limited nor the Board members are the Complainant in the allegation against the Defendant.
 
54.	Moreover, Defendant’s engagement was endorsed by a NEC decision No NG 91 of 2017 and subsequently contract for engagement was facilitated by PNG Power limited. PNG Power Limited did not operate in isolation to engage the Defendant but was consistent with the NEC recommendation. NEC being the appointing authority had engaged the serve of the Defendant. Evidence shows, the contract was approved by a legally constituted board of PPL and the appointment was done by the appointing authority NEC.
 
55.	Therefore, in the application of my authority under Section 95 of the District Court Act, evidence suggest that Defendant did not by false pretense or willfully false promise, or partly by a false pretense and partly by a willfully false promise, and with intent to defraud obtained from PNG Power Limited money and had paid herself. Therefore, evidence is unsatisfactory to meet the elements of the offence of False Pretense under Section 404(1) of the Criminal Code Act and thus the charge is dismissed.
 
Third allegation-Forgery under Section 462(1)[x]
 
56.	 Forgery is defined by oxford dictionary as the action of forging a copy or duplicating of a document, signature banknote or work of art. The Criminal Code Act defines Forgery as a person who forges any document, writing or seal. In order to establish Forgery, there must be evidence that Defendant had forged the contract of employment with PNG Power Limited. The principles in Police v Koka[xi]  will be functional in the circumstance here. The evidence in the PHUB must satisfy the elements of the offense since an allegation shall be only proven with evidence.
 
57.	 Evidence should validate that a document is fabricated if it is altered so as it makes it false in any respect. The accused in the allegation must have intended to defraud, deceive or trick the victim with the forged document. Intention is the key element to demonstrating forgery.

58.	The Supreme Court of Canada in Gaysek v R [1971] SCR 888 noticeably clarifies any document which is false in reference to the very purpose for which the document was created is certainly one which is false in a material particular. The qualification in this ruling is that the forgery on the document would invalidate the purpose of the document and subsequently its contents would be untrue from the time it was forged.  On 28th August 2018, Defendant had signed her contract of employment in the presence of two (2) other persons including the Board Chairman of PNG Power Mr Nupiri. Defendant did not forge the signature of the Board chairman nor the witness. Defendant had signed her own signature followed by the Board chairman and the witness. Moreover, there is no evidence that Defendant had forged the terms and conditions of the contract. Evidence shows Defendant on the material time had signed a contract of employment that was prepared by PNG Power Limited and in the presence of two others.
 
59.	Therefore, evidence shows the defendant singed a contract of employment prepared by PNG Power Limited in the presence of the Board Chairman and did not forge any document, writing or seal. Therefore, it is my ruling that police evidence has failed to make a prima facie case against the Defendant by fulfilling all the elements of the offence of forgery under Section 462(1) of the Criminal Code Act, and this this charge is dismissed.
 
Fourth allegation-Conspiracy under Section 515[xii]
 
60.	Conspiracy is well-defined as an undisclosed strategy by some collective or individual to do something unauthorized. The statement of Brian Kramer states Defendant and the former Board chairman conspired to have the contract of employment signed in August 2018, 8 months after the Defendant’s appointment in December 2017 without PNG Power and KCH Board or NEC approval to corruptly procure the payment of K1.7 million to the Defendant’s benefits.
 
61.	I have considered the allegation, however, there is no evidence of conspiracy between board members and the Defendant as there were two different Boards under the chairmanship of two different persons, first being Andrew Ogil and later Peter Nupir who had carriage of the contract negotiations and conclusions. There is no evidence that the Defendant negotiated the contract herself, in fact evidence shows the contract was offered to her by the board of PPL after NEC approved the Defendant’s engagement.

62.	The complaint is lodged by Brian Kramer a member of parliament and Minister for Justice. Evidence shows he had acted upon an allegation he heard from another person. There is evidence that Defendant was appointed by NEC through decision No NG 91/2017 to the position of acting Managing Director for PNG Power Limited effective on and from the date of decision. Defendant was appointed after the previous NEC’s appointment of a Fego Kiniafa through decision No NG 30/2017 was revoked. Evidence shows Defendant was appointed by NEC, the appointing authority. Defendant had signed a Contract of Employment with PNG Power on 28th August 2018 and she resigned in 2019.

63.	NEC is the appointing authority and they have the broader authorities to invalidate preceding appointments and appoint new ones or may make any acting appointment permanent or may disregard short listed applicants and call for new applications. NECs Power of appointment is not to be questioned by anybody other than the courts. The court may be required to correct the process and procedures of appointment and termination from being abused by NEC but other than that no person has any authority to question NEC powers. The Board of PNG Power at the time had to comply with NEC directives and therefore formalities to engage the Defendant was executed through a NEC directive.
 
64.	Moreover, in the case of Police-v-Kimisopa[xiii] the court ruled that the evidence of conspiracy must be direct that there is clear evidence of two people conspiring to do something illegal. Finally, there is no evidence of anything from the Defendant asking or inducing PNG Power Limited to have her contract signed. There is no evidence of Defendant conspiring with anybody within PNG Power limited since the Defendant’s engagement is form NEC and thus PNG Power only facilitated what was already approved by NEC. Therefore, in the exercise of my powers under section 95 of the DCA, I find evidence is insufficient to make a prim facie case against the Defendant and therefor the charge of conspiracy is dismissed.

65.	Complainant stated that he was informed by a whistle-Blower about the level of corruption in PNG Power Limited and the appointment of former CEO who is now the Defendant. Section 3(1)(b) of the Whistleblowers Act 2020, protects employees who make protected disclosures from occupational detriment and thus he/she is protected but why the purported whistleblower as claimed by the Complainant conveyed information to a third party complainant? The whistle blower is protected by Law and thus he should have lodged this allegation against the Defendant however, it appears to me that the basis of the information is on hearsays since the Complainant did not witness his allegation but heard from a whistle blower.

66.	The general rule on hearsays is hearsays evidence is not admissible in court unless there are exceptions to this but such exceptions should be applied on the highest degree of probability or as the interest of justice requires.
 
Double Dipping
 
67.	Complainant alleges Defendant while engaged by Cardno PNG and on that payroll was paid by PNG Power. Complainant alleges Defendant was paid by two employers simultaneously of which one being PNG Power Limited and other being Cardno PNG. it was alleged that it was illegal for the Defendant to obtain income from two different sources. 

68.	 Evidence shows Defendant was previously employed by Cardno PNG and later with PNG Power Limited. She was paid in Australian dollars for her previous employment while in Kina for the later. What is the moonlighting (second job) employment Law? While there are no specific law prohibiting moonlighting, it can be governed by the policies of the Defendant’s employer. For example, if PNG Power Limited had a policy prohibiting moonlighting it should be well documented in the contract of employment and company handbook/policy book. The issue of concern is whether or not a person’s income has been taxed twice.  if one has been moonlighting in two or three different countries and no disturbance in the personal income tax, there is no issue.

69.	The attitude in not the same in Australia until the Federal court of Australia in WorkPac Pty Limited v Rossato  [2020] FCAFC 84 has handed down a bench mark decision that an employee in Australia is entitled to a second bite of the cherry (be employed in  more than 2 jobs). The court in its ruling was of the view that some holiday makers in Australia usually resort to summer part-time jobs upon demand while their substantive jobs maybe elsewhere in other States. Given the recent judgement in the above case, Defendant’s engagement with PNG Power Limited was considered by Cardno PNG as not double dipping but was seen as double dipping by the Complainant.

70.	I have read the police file but the issue of double dipping is not raised by Cardno PNG but the Complainant. My judgement on this is one has to pay income tax on whatever incomes he/she earns. Defendant in the current case was employed by 2 different jurisdictions and in two different currencies. There is no issue of double dipping so long as her personal income tax was not affected and her income was sustained by two different countries. 
 
Contract of Employment
 
71.	Defendant entered into a contract of employment with PNG Power Limited effective on August 2018 and with retrospect to 2017. On the basis of an employment contract a natural person(employee) does work for another person(employer) in subordination to the management and supervision of the employer. The Employer remunerates the employee for such work. Complainant among other allegations alleges that Defendant paid herself through a contract of employment which did not go before the PNG Power Limited Board and KCH.  A voidable contract is a formal agreement between two or more parties that may be rendered unenforceable for any number of legal reasons including failure by one party to disclose some material facts or a mistake, misrepresentation and fraud among others. In the worst case scenario, one may file for damages in the courts to have any lost resources (in terms of money and other valuable assets) recovered if there were any resources stolen or being abused by the party instigating void.

72.	If there were allegation of fraud or defects in the signing of the contract, then the party allegation fraud should have initiated a civil cause of action under the applicable laws to have the money paid to Defendant recovered. It should have been a cause of actions for damages or recovery proceedings and not criminal unless there is direct elements of stealing. The appropriate person to institute such action is someone who is affected by the Defendant’s alleged actions and has an interest in the matter and that would be either PNG Power Limited or KCH. Having said that, it would be unlawful for someone outside of the contact of employment to institute such actions.
 
CONCLUSSION
 
73.	I have carefully considered prosecution file in respect to the allegations raised by the Complainant and in the exercise of my jurisdiction under Section 95 of the DCA, I’m persuaded with evidence to draw my attention to Section 95(2) of the DCA. Consequently, it is my pronouncement that evidence is insufficient to make a prima facie case against the Defendant for the charges of Misappropriation (Dishonestly Apply) under Section 383A(1)(a), False Pretense under Section 404(1), Forgery under Section 462(1) and Conspiracy under Section 515 of the Criminal Code Act.
 
ORDERS
 
My Final Orders
 
1.	 Evidence is insufficient to commit the Defendant for the charge of Misappropriation (Dishonestly Apply) under Section 383A(1)(a) of the Criminal Code Act, and therefore this charge is dismissed.

2.	 Evidence is insufficient to commit the Defendant for the charge of False Pretense under Section 404(1) of the Criminal Code Act and therefore this charge is dismissed.

3.	Evidence is insufficient to commit the Defendant for the charge of Forgery under Section 462(1) of the Criminal Code Act and therefore this charge is dismissed.

4.	Evidence is insufficient to commit the Defendant for the charge of Conspiracy under Section 515 of the Criminal Code Act and therefore this charge is dismissed.

5.	The four (4) charges against the Defendant are dismissed.

6.	Defendant’s passport be returned to her and other bail obligations be discharged forthwith.

7.	Bail money be refunded to the Defendant.

 
Young and William Lawyers                           For the defendant
Police Prosecutor                                           For the State

 

[1]       Section 383A added by No. 10 of 1981, s1.

[i] Criminal Code Act 1974
[ii] Criminal Code Act 1974
[iii] Criminal Code Act 1974
[iv] Criminal Code Act 1974
[v] of the District Court Act
[vi] [2021] DC 6056
[vii] Criminal Code Act 1974
[viii] Criminal Code Act 1974
[ix] Criminal Code Act 1974
[x] Criminal Code Act 1974
[xi] [2021] PGDC 53; DC6010
[xii] Criminal Code Act 1974
[xiii] [2021] PGDC 76;DC 6031