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State v Bera [1980] PGNC 34; N257(L) (22 September 1980)

N257(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

LEO AITSI BERA

Wewak: Kearney DCJ
19-20 September 1980; 22 September 1980

CRIMINAL LAW - charges of unauthorized signing of documents with intent to defraud - officers of National Public Service responsible to Provincial Government - lack of proof of signing "without lawful authority."

STATUTES - Criminal Code - Section 481.

REASONS FOR DECISION

KEARNEY DCJ: The accused is standing trial on 3 charges under s.481 of the Criminal Code.

The counts allege that he signed 3 documents in July 1979 for another person without lawful authority to do so, and with intent to defraud.

In the indictment the other "person" is named as "the Department of Decentralisation".

A Department is not a person, it is not a juristic entity; it is, however common ground that the reference is treated as a reference to the National Government, which is a "person" as defined in Section 1 of the Code.

The documents in question are 3 "Integrated Local Purchase Order and Claim" forms, commonly known as ILPOCs. These are the order forms used by officers of the Public Service to obtain goods and services for official purposes.

The State case is that in July 1979, the accused was employed in the National Public Service within the Department of Decentralization as the Administrative Secretary of the West Sepik Province. It is conceded that he had a book of ILPOCs legitimately in his possession and he had authority to order goods and services for official purposes by signing them, as a Financial Delegate; I comment later on this concession.

In the month of July 1979 a Conference was held in Port Moresby, organised by the Department of Decentralisation, called the Senior Provincial Affairs Officers Conference (herein called the SPAO Conference). The accused’s office of Administrative Secretary is not an office with the work of which the SPAO Conference was concerned, and he was not invited to attend. 2 Provincial Affairs Officers working in the West Sepik Province were invited to attend, and did so, their expenses being borne by a Department of Decentralization vote.

The accused decided that he should be present at the SPAO Conference. He wrote out 3 ILPOCs, all on Vote 248. By signing ILPOC 51005 dated 13 July 1979 for the sum of K240, he obtained a return airline ticket to Port Moresby He flew to Port Moresby on 16 July. On arrival in Port Moresby, by signing ILPOC 51006 dated 17 July, he hired a car, which he drove for some 755 kilometres from 16 July until he flew back to Wewak on 23 July, at a cost of K215.38. By signing ILPOC 51008, dated 23 July he paid for his accommodation in Port Moresby from 18 July to 23 July, at a cost of K133.20. The total expenditure he incurred in this way was K589.08. ILPOCs 51006 and 51008 indicate on their face that the car was hired and the accommodation obtained in connection with the accused’s attendance at the SPAO Conference; the State contends that the airline tickets obtained by ILPOC 51005 were also for the purpose of his attendance.

On the basis of those facts the State contends that as the accused was not invited to attend the SPAO Conference, he could not attend thereat as a matter of official duty, and accordingly could not properly draw upon any Government funds to meet the cost of his attendance. In signing the ILPOCs for that purpose, he had accordingly exceeded his lawful authority. Further, since the various services he thereby obtained - air travel, car hire and accommodation - were not for official purposes they must be taken to have been for his own personal purposes and this meant that when he signed the ILPOCs he did so with an intention to defraud.

That, as I understand it, is the way the State puts its case.

I turn to the evidence adduced to support these contentions.

Stephen Voseak is an Inspector with the Department of Finance. He carried out a financial investigation in Vanimo in November 1979. He discovered the 3 ILPOCs and from his enquiries concluded that they had not been used for "authorised purposes". He agreed in cross-examination that the accused, as Administrative Secretary, was the Chief Accounting Officer for the Province and "could sign for up to K20,000". I take it that the witness had in mind the accused’s power to operate on Vote 248-10 which related to Province-oriented expenditure in the West Sepik, that is, to money spent by the Office of Implementation on behalf of the Province and at the direction of the Provincial Government. The witness could not say whether the accused was entitled to attend the SPAO Conference.

Elipas Mosogo was the Deputy Secretary of the Department of Decentralization in July 1979. He said that the accused came to see him in Waigani that month, and discussed for half-an-hour or so some matter affecting his Province. The accused did not tell Mr. Morogo that he had come to Port Moresby to attend the SPAO Conference. He believed that the accused was entitled to issue ILPOCs. He considered that the accused had no need to attend the Conference, unless he were invited. He considered that the accused had "Departmental Head" status within his Province. It is clear that he was not a "Departmental Head" within the meaning of the Public Service (Interim Arrangements) Act 1973. The following occurred in cross-examination:-

"Q. Does he (i.e. the accused) have to get permission from anyone, to travel?

A. No, provided the arrangements are clear with his Provincial Government - provided that Government agreed there was a need for him to travel."

That accords with my understanding of the matter. The witness said that in July 1979 the office of "Administrative Secretary" was an office within the Department of the West Sepik. There may be some confusion as to precisely what that means. A Department of the West Sepik was created in April 1979 as a Department of the National Public Service; but it had no function until November 1979. I think Mr. Mosogo had in mind the administrative division of the Office of Implementation known as "Department of the West Sepik". The Administrative Secretary was the head of this division. His duties are set out in Gazette PS 10 of 3 August 1978. He was responsible to the Provincial Executive, through the Provincial Premier. He exercised, by delegation under Section 25, within the Province, the powers of the Departmental Heads of those Departments which had administratively decentralised their activities.

The next witness was Judy Deklin, who said that she had issued an Air Niugini ticket Wewak-Port Moresby-Wewak in exchange for ILPOC 51005.

Gerald Poivi was one of the officers from the West Sepik Province who attended the SPAO Conference, He said it lasted for 3 days, after starting 2 days late. He saw the accused in attendance on the first day as an observer. He said another Administrative Secretary on transfer to Port Moresby was also present as an observer. Mr. Poivi also testified as to the system of issuing ILPOCs. As I understood him, Management Services in the Province controlled the ledger, and thus kept track of funds actually available against the various vote items. He himself had power under section 24 of the Public Finance (Control and Audit) Act to approve requisitions for expenditure; once approved, such a requisition would be sent over to Management Services where the Financial Delegate would, if funds were available, enter the requisition as a commitment against the particular Vote 248-10 items and raise, sign and issue an ILPOC (which showed, inter alia, Vote 248-10, the activity, the item, Cash Funds Certificate number, commitment number, and the reason for the travel etc.).

I mentioned earlier that the State has conceded that the accused had power to sign ILPOCs. I find that surprising. ILPOCs can only be signed by Financial Delegates, and since 1 January 1979, that has meant not only that the officer must be appointed under Section 29, but that he must also hold a Cash Funds Certificate. Clearly this procedure was introduced (see Finance Instruction 161 of 31 October 1978) to tighten financial control over expenditure. I do not see that the Administrative Secretary would be directly responsible for commitment control - for which the ledgers in BMS would be necessary - and so I do not see why he would be appointed a Financial Delegate. Indeed the ILPOCs in question in this case illustrate, by the deficiences on their face, precisely the evils which the new system was designed to rectify. However, the State concedes that for the purposes of this case the accused was a Financial Delegate, so the question is not whether he had any power to sign the ILPOCs, but whether his admitted power was properly exercised in this case.

The deposition of Geno Maka was received under Section 109 of the District Courts Act. He was the officer of the Department of Decentralization who was responsible for arranging the SPAO Conference. He confirmed that the accused had not been invited to attend it. The following took place in his cross-examination:

"Q. Is it true Mr. Bera did not incur any expenses (i.e. in attending the SPAO Conference) on the Department of Decentralization?

A. That is true."

"Q. Is it true that the Travel and Subsistance Vote for the Province is different from the Department of Decentralization one?

A. That is correct."

Finally Constable F/C Awasa testified that he had interviewed the accused on 25 March 1980. The record of this interview, as edited, is in evidence as Exhibit F. It contains the following:

"Q22. I have information that you are not listed to attend this meeting (i.e. the SPAO Conference). What are you going to say about that?

A. As a Head of Department I have authority to travel to Port Moresby as observer.

And see the Secretary for Decentralization for other matters.

Q23. I have further information that (the persons attending) the SPAO meeting were provided with air tickets and accommodation; and you yourself went to Port Moresby under Provincial funds and stayed at an hotel and also hired the car under that Provincial fund. What are you going to say about that?

A. Well I was (on) official duty as an observer and while visiting other Departmental Head at Port Moresby I have to use Provincial funds to use while I was there."

In other answers, to questions 32 and 38, the accused reiterated his view that as the Departmental Head it was his prerogative to decide where he should travel. He also stated that all funds used came from Division 248-10 for which he was the Chief Accounting Officer; he said this was a Provincial vote, used by the Department in the Province. He said: "The Department of Decentralization has no say in Division 248."

The answer to Question 42 might on one reading of it appear to be an admission, but I am satisfied it would be quite unsafe to read it that way.

That was the evidence adduced by the State.

The accused testified. He said he used the ILPOCs, because he regarded his attendance at the Conference as "official duty". He said he had 4 reasons for going to Port Moresby. One was to attend the Conference; the other was to see various officials, in connection with administrative matters in the Province - those meetings, on different days, occupied about 2 hours in all.

He said he thought it necessary that he attend the Conference, because he should learn the problems the outstation officers had in different Provinces. He reiterated that whether or not he was invited, he had a "right to go".

He said two other Administrative Secretaries were present. He had himself attended sessions of the Conference on 3 or 4 occasions.

He said he was answerable to the Premier, and he had notified the Premier before he left for the Conference.

He said that as Chief Accounting Officer he was entitled to hold an ILPOC book.
The Conference ended on a Friday but the West Sepik officers had no flight to return to Vanimo until the Monday.

That is the state of the evidence before me.

The only issues in the case are whether the State has proved beyond reasonable doubt:

a) that the accused had no lawful authority to sign these particular ILPOCs;

b) that he signed with intent to defraud.

On the first issue, the State relies solely on the fact that the accused attended the Conference, without invitation, as establishing lack of lawful authority. It is clear that he had no invitation to attend. But that does not end the matter and, in my opinion,. is of little relevance. The accused is an officer of the National Public Service. The scope of his authority is, no doubt, et out in general terms, in his Duty Statement, which is not in evidence before me. On the evidence before me, he seems to have had extensive authority to operate on Vote 248-10. To prove that he exceeded his legitimate authority to do so, would have required evidence to establish the limits of that authority, and to prove that to travel outside the Province, after notifying the Premier, to attend at a conference attended by his subordinate officers, was an action outside those limits. Evidence to establish these matters is lacking. such evidence as there is, points the other way: That the accused’s decision as to whether an administrative course of action was desirable was one for which he was properly answerable only to the Provincial Executive, both for doing what he did and expending the money which it cost to do so.

In the circumstances, and in light of the State’s concession that the accused was a Financial Delegate, and entitled as such to sign ILPOCs, I am unable to find beyond reasonable doubt that he lacked lawful authority to sign these ILPOCs.

That is sufficient to determine the outcome for the State must prove both lack of lawful authority and intent to defraud. However it is clear from the foregoing that the State has not satisfied me that the services in question were not used by the accused for his official purposes; and I am not satisfied beyond reasonable doubt that there was an intent to defraud.

These are criminal proceedings and I am concerned only with whether criminal guilt has been proved. The question of whether what the accused did could have amounted to a breach of his public service duties under the Act; does not arise here.

I think that as expenditure of the funds in Vote 248-10 appears to have been under the exclusive final control of the Provincial Government, that Government should have been named in the indictment as the "person" to whom the accused signed the ILPOCs. However, the point was not argued, and I do not know the extent to which the Province had financial control of the Vote at the time; it is unnecessary to decide the point.

The accused is not guilty of the 3 charges brought against him. He is acquitted, and discharged.

Solicitor for the State: L. Gavera-Nanu A/Public Solicitor
Counsel: K.Bona
Solicitor for the Defence: J. Alman
Counsel: J. Alman.