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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. (FC) 98 OF 2018
THE STATE
v
KANAWI POMAT
AND:
CR. (FC) 102 OF 2018
THE STATE
v
SIMON PONDRILEI
AND:
CR. (FC) 104 OF 2018
THE STATE
v
PAUL MANGEU
Lorengau: Kirriwom J
2020: 15th June
PRACTICE & PROCEDURE – Evidence - No Case to Answer submission – Misappropriation – Prima facie case - Whether property dishonestly applied – Whether lack of evidence of acquittal of funds expended enough – Several accused jointly indicted - Whether collective responsibility applies in misappropriation cases – Criminal Code, s.383A
Cases Cited:
The State v Paul Kundi Rape [1976] PNGLR 96
Roka Pep v The State (No 2) [1983] PNGLR 287
Counsel:
T, Aihi, for the State
K Pokiton, for the accused
REASONS FOR DECISION
15th June, 2020
1. KIRRIWOM J: At the close of the State case after the seventh of 14 witnesses listed on the back of the indictment in this charge of misappropriation against the three accused under section 383A of the Criminal Code finished giving evidence, defence counsel made a no-case to answer submission based on the first limb of the principle in The State v Paul Kundi Rape [1976] PNGLR 96 which was reaffirmed in Roka Pepe v The State (No 2) [1983] PNGLR 287. And the principle is that where the State has not presented any credible evidence establishing one or more of the elements of the offence the accused has been charged with, the accused must not be called upon to answer the charge. This means that the prosecution has not made out a prima facie case that on that evidence as presented before the court, the accused cannot be lawfully convicted of the charge in the indictment.
THE CHARGE
2. The three accused are charged that between 1 June 2013 and 17 December 2013 they dishonestly applied to their own use or to the use of another, a sum of K100,000.00 property of the National Fisheries Authority. The money was drawn from the account of the National Fisheries Authority and initially made payable to the Manus Provincial Government. The payment was for and to support the fisheries operations in Manus Province undertaken by the Division of Fisheries in the Province. The payment was made by Bank of South Pacific Cheque number 003822 from the account number 1001553164 under the name styled NATIONAL FISHERIES AUTHORITY PROJECT ACCOUNT dated 15 February 2013 payable to MANUS PROVINCIAL GOVERNMENT and signed by two signatories to that account. After that cheque was raised, Manus Provincial Government as payee was crossed and a different payee was substituted instead.
THE ACCUSED
3. The three accused are senior officers within the Division of Fisheries in the Province responsible for fisheries projects and operations in Manus Province. From the ROIs I deduce that Simon Pondrilei was the Executive Manager of the Manus Fisheries and Marine Resources Division, Kanawi Pomat was the Special Projects Officer with the Division and Paul Mangeu was the Provincial Fisheries Officer with the Division. Besides them there are five other staff members or officers including a steno-secretary who gave statement to the police on the meeting held on 8th April 2013 that inter alia discussed this cheque opening.
INTERNAL AUDIT REPORT
4. The charge against the three accused stems from the findings of an internal audit conducted by the Provincial Accountant/Auditor of the Division of Fisheries and Marine Resources which published a Report titled Fish Market Section Final Investigation Report for 2014 & 2015 dated 24th March 2016 (Exh 14).
NATIONAL FISHERIES AUTHORITY CHEQUE – NFA CHEQUE
5. While examining accountable documents during this audit, the auditor came across the cheque in question from the National Fisheries Authority alluded to earlier, the subject of this charge, and discovered the alteration of the cheque where the original payee named MANUS PROVINCIAL GOVERNMENT was crossed out and a new payee name was written above it as MANUS FISHERIES DEVELOPMENT PROJECT ACCOUNT. This discovery led to the National Fraud Squad being called in to investigate the operations of the Division of Fisheries and Marine Resources with respect to the trail of this particular cheque.
NATIONAL FRAUD SQUAD INVESTIGATION – ROI
6. Stemming from this audit report, twice the trio were individually interviewed by the Fraud Squad and charged. The first round of interviews was in respect of the K100,000 cheque from NFA following which the three accused were each charged with Official Corruption and Abuse of Office. The interviews were conducted on 1 June 2017 (Simon Pondrilei), 5 June 2017 (Paul Mangeu) and 6 June 2017 (Kanawi Pomat).
7. Second round of interviews described as Supplementary Record of Interview were conducted in respect of the overall operations of the Division of Fisheries and Marine Resources between 8 and 9 December 2017 following which these additional charges were laid against the accused:
8. Their ROIs are in evidence and marked Exh 1 – Exh 6. It needs remarking at this juncture that all three accused fully cooperated with the investigators and freely answered all questions and signed all their interviews in both their interviews. Their answers are self-serving and nothing untoward suggesting that the interviewee was being evasive or struggling to conceal the truth thereby leaving no room for any doubt or misinterpretation in what each told the police in his answers to the prepared questions from his own respective position.
WIDE RANGE OF ALLEGATIONS
9. While the evidence tendered covered a wide range of allegations of official corruption, abuse of office and misappropriation involving in excess of K500,000 the prosecution of the three accused was focused only on the K100,000 drawn from the National Fisheries Development Account and made payable to the Manus Provincial Government that subsequently changed to Manus Fisheries Development Project Account.
THE TRAIL OF EVIDENCE
10. As I followed the evidence presented by the State both orally and from the signed witnesses’ statements and other documents tendered by consent as well as those produced through witnesses and marked as Exh. 1 – Exh 14, the investigation into this particular cheque of K100,000 which I shall refer to as the “NFA Cheque” for short, aroused a great deal of suspicion on the part of the Manus Provincial Administration on the propriety of the actions of those officers involved in the alteration of the payee name from Manus Provincial Government and the creation of a separate account in the Province with the Bank of South Pacific Lorengau styled Manus Fisheries Development Account, account number 1011929096.
11. Evidence was led through Anna Kepui of a meeting being convened on 8th April 2013 in which she took the minutes as the acting personnel assistant (Exh 12) in which amongst the usual business of the Division of Fisheries and Marine Resources (DFMR), the NFA Cheque was tabled and discussion was held regarding opening of a separate bank account. Resolution was passed to that effect and the meeting appointed/elected the three accused as the signatories to the account. The account was opened on 17 June 2013 and NFA Cheque was deposited on 18 June 2013 into that account. Then there were series of withdrawals from the account and the final withdrawal was made on 2nd December 2013.
12. Evidence given by the two arresting officers, Det Sgt Dickson Lakaio and Det Sgt Philip Yonge of the National Fraud Squad and the then Provincial Administrator Andrew Posong described this account, which I shall refer to as Manus Fisheries Development Account, as illegal because the NFA Cheque originally destined to reach the Manus Provincial Government Account as the named payee was hijacked along the way and redirected to another account specifically opened for the purpose of using funds in that cheque for ulterior motives and purposes beneficial to the signatories to the account. So the whole investigation of the use of the NFA Cheque was already pre-determined that the NFA Cheque was illegally altered, the Manus Fisheries Project Account was an illegal account and all transactions conducted on that account by the three signatories were illegal as they were expenses of personal nature to the three accused and their friends.
EVIDENCE OF LACK OF ACQUITTALS – NOT PROOF OF THEFT
13. To prove that this was what happened, the State called evidence of lack of acquittals filed as regards the use of the funds withdrawn and spent from the Manus Fisheries Project Account through Andrew Posong, the two arresting officers, Det, Sgt Dickson Lakaio and Det Sgt Philip Yonge, Dominic Keurih, the Provincial Accountant/Auditor and Mildred Were, the accountant with National Fisheries Authority based in the Head Office in Port Moresby.
14. Gideon Alua, the Bank Officer from Port Moresby Bank of South Pacific Head Office supplied the evidence of the Bank Statement of the account concerned and various transactions of cheques drawn on the account and signed by two of the three signatories at various times made payable to cash, various service providers and to one or other of the three signatories.
PRE-CONCIEVED INVESTIGATION
15. No evidence was tendered explaining these expenditures by way of cash book entries and transactions with regard to the break-ups of those withdrawals. Such evidence could have been obtained from a thorough search of records of the Division of Fisheries and Marine Resources office in Manus. By the same token statements could have been obtained from other officers in the Division besides Anna Kepui to assist with information as to the proper or improper use of the funds in the account concerned. All the investigation seems to be conducted with a pre-conceived mind that the Manus Fisheries Project Account was illegal and all transactions conducted on the account were illegal.
16. But against that assumption and belief erroneously held, there was the evidence of Paso Pohei, District and Provincial Administrator having the oversight responsibility of the office of the Provincial Administration while the then Provincial Administrator Kulun Amon was out with the PEC in the North Western Manus LLG. He was the Deputy Provincial Administrator, Technical Services Division under whose oversight the Division of Fisheries and Marine Resources fell while Andrew Posong was the other Deputy PA.
AUTHENTICITY OF CHEQUE ALTERATION – LEGALITY OF MANUS FISHERIES DEVELOPMENT ACCOUNT
17. While overseeing the office he received a letter from the then Managing Director of NFA , Sylvester B Pokajam dated 18 March 2013 addressed to the Provincial Administrator Manus Provincial Administration titled SUPPORT FOR MANUS PROVINCIAL FISHERIES PROGRAMS advising of support to Manus Provincial Fisheries with a payment of K100,000 in order for the Division to operationalize its programs (Exh 7). There was also another letter from Mr. Pokajam dated 18 March 2013 and addressed to the Bank of South Pacific Lorengau Branch titled OPENING UP OF MANUS PROVINCIAL FISHERIES PROJECT ACCOUNT. The following two paragraphs clearly convey the message of that correspondence:
For the smooth implementation of fisheries programs, NFA is supporting all Provinces with K100,000 to operationalize their programs for 2013.
Therefore, I request you to facilitate the opening up of Manus Fisheries Project Account and this letter serves to advise for same.
18. With these letters brought to his attention for action, as the Deputy Provincial Administrator over-seeing the affairs of the Division of Fisheries and Marine Resources in Manus Provincial Administration, Paso Pohei wrote a supportive letter addressed to the Bank Manger BSP Lorengau Branch dated 11 April 2013 titled APPROVAL TO OPEN UP A CHEQUE ACCOUNT – MANUS FISHERIES PROJECT. The following passage in his letter delivers the message very clearly:
“Please facilitate this request and open up a cheque account for my Fisheries Division. There will be three signatories to the account and any two signatories will counter sign each cheque. I am proposing that the signatories be:
19. The letter was signed by Paso Pohei as overseer – Provincial/District Administrator & Deputy Administrator ETS.
20. Mr Pohei did not propose the three accused to be the signatories to the account. He proposed the signatories to be three officers with specific designations and positions within the DFMR. At the material time, they were the three accused.
21. If there was any doubt at all about the legality of the Manus Fisheries Project Account and whether the alteration to the payee name from MANUS PROVINCIAL GOVERNMENT toMANUS FISHERIES DEVELOPMENT ACCOUNT, the Court heard evidence from the incumbent Managing Director of NFA, Mr. John E Kasu, who took over from Mr. Sylvester Pokajam. He was holding a senior position below Mr. Pokajam at the material time in 2013 and was very much tuned to what was happening. His evidence was very clear, At the time there was concern about the money for the provincial fisheries development programs being paid into the main Provincial Government Account where the funds could be applied to other areas besides fisheries was being mooted and expressed. So, there was a reason for having a separate account under the name of the Fisheries Division where all monies appropriated to the Provinces by the Authority will be strictly applied to the fisheries programs and projects and not to beef up the Provincial Budget for other expenses.
22. So, the Authority supported the idea and all Provinces were encouraged to open Provincial Fisheries Office accounts and Manus was no exception. John Kasu was a co-signatory to the NFA Cheque in question and he was also one of the signatories that authorized the alteration of the payee on the cheque from Manus Provincial Government to Manus Fisheries Development Account.
23. Mr. Kasu also told the court that the account was legal, he had no oversight responsibility concerning acquittals of the funds spent. That should be enquired with the appropriate officers in NFA. He also said that this transaction took place during his predecessor’s term and he would know about any issue with acquittals. Det Sgt Yonge was cross-examined as to why no statement was obtained from Mr. Pokajam and his response was that Mr. Pokajam had exited from the position of the Managing Director of NFA at the time of investigation and according to Sgt Yonge the most appropriate person to obtain statement from was his successor Mr John Kasu.
24. Sgt Yonge was in possession of the two correspondences from Mr. Pokajam to Manus Provincial Administrator (Exh.7) and another to the Bank Manager BSP Manus (Exh,8) referred to earlier at the time of his investigation. Had he embarked on his task with an open mind, common sense prevailing, Mr. Pokajam was his most critical witness to interview and obtain statement from with respect to the NFA Cheque and opening of the Manus Fisheries Project Account with BSP Bank Lorengau. But he chose not to because his scope of investigation was restricted to what his instructions were from the Manus Provincial Administration and that he had already determined that an offence had been committed in respect of the NFA Cheque and the account was illegal. In his evidence before the court he kept describing the Manus Fisheries Project account as illegal despite being reminded that Mr. Kasu, current MD for NFA did not support his view. He later qualified his answer with response that he did not know.
PRIMA FACIE CASE – PROOOF OF ELEMENTS OF OFFENCE
So, what do I make of all these evidences?
25. In order for me to call on the three accused to answer the charge against them there must be a prima facie case established by the State showing that:
26. MsAihi for the State in her opening address before calling evidence submitted that the only issue in the trial was the dishonest application of the payment received from NFA.
27. The evidence she tendered in the trial mostly centred around the payment from NFA, the alteration of the payee name, the establishment of the Manus Fisheries Project Account and deposit of that cheque into the account, the withdrawals from the Manus Fisheries Project Account and lack of acquittals for the use of that fund. There is not one iota of evidence showing any questionable or dubious transactions with respect to the use of that fund, or evidence of complaint by anyone of any misuse of the fund in question or any evidence of any of the three accused becoming men of substantial means overnight or let alone evidence of any of them spending recklessly and carelessly in the way their lifestyle changed from simple public servants to persons with lots of money at their disposal to philander at will and at their pleasure. Other officers in DFMR would have been the first to attest to these facts if that were so. Were they called as witnesses to testify to this fact? No.
28. When I examined the evidence in the State case in its totality, the following scenes emerge. Firstly, with respect to the NFA Cheque, the alteration of the payee was legal according to John Kasu, the Managing Director for NFA, the opening of the Manus Fisheries Project Account was legal according to the evidence of both John Kasu and Paso Pohei, Deputy Provincial Administrator who at the material time was overseeing the office of the Provincial Administrator when all these events happened. Secondly, all the funds deposited into the account were fully spent by early December 2013, details of which were not presented in court because, the State argues, there were no acquittals of how the money was spent submitted to NFA.
29. Mildred Were, the accountant with NFA who took up employment in 2017, some four years after all these events took place, told the court that she searched the records and could not find any acquittals submitted for the period in question. Her evidence was contradicted in cross-examination by defence counsel that there was acquittal of the funds submitted by the accused Paul Mangeu under cover letter dated 15th August 2014 showing itemized break-ups of expenses for the entire sum of K100,000 and the letter also requesting for the 2014 Administrative Grant of K200,000 from NFA. That letter was addressed to the Executive Manager, NFA and attention to Mr Presley Kokwaiye. The letter was tendered and marked for identification as “MFI1”. Ms Were did not sight this letter in her search.
LACK OF ACQUITTALS – NOT PROOF OF DISHONESTY
30. In the absence of any direct evidence of dishonest application of the funds in question, I ask myself, is lack of evidence of acquittals credible and reliable enough evidence for purposes of meeting the requirements of prima facie case in order for the accused to be called to answer the charge? In other words, on the evidence as it stands, can the accused be lawfully convicted for this offence?
31. What is then the purpose of acquittals which is a mandatory requirement for transparency and accountability purposes in the way funds are expended? Does this requirement have any substantive role to play in terms of primary evidence of proving an offence of dishonest application by the person to whom the grant was made? Even more so, how is the criminal culpability apportioned between co-accused where one of them bears the responsibility for submitting the acquittals on behalf of the office or organization and others are dependent on him? And if he fails, do they all become criminally liable by default due to the failure of one?
COLLECTIVE CRIMINAL RESPONSIBILITY
32. I am therefore having great difficulty imputing criminal culpability on the part of several persons all charged with misappropriation where administrative responsibility of lodging or submitting acquittals for expenditures falls on a designated officer who for example did not do so. In my view misappropriation is an individual offence, not a group offence. A group of men can be charged with homicide because evidence will demonstrate the part that each played to bring about the end result of their group action which is death of the deceased. But I don’t know how two or more persons can be charged with dishonestly applying property belonging to another for their own use or the use of others or another.
33. For the State case to raise its head a little based on the current allegations where group responsibility is imputed, the State must tender evidence of knowledge and criminal intent that the accused severally and jointly knew what they were doing was wrong when they facilitated alteration of the payee and the Manus Fisheries Project Account was an illegal account and all three accused knew that it was an illegal account and that they knew that their operation on that account was illegal. There is overwhelming evidence that everything in relation to the NFA Cheque from alteration to payee, the opening of new account and the expenditures from the account was beyond reproach.
ONUS OF PROOF NEVER SHIFTS
34. Even in a case such as this, the onus of proof does not shift at all from the prosecution to the accused. The lack of evidence of acquittal documents does not conclude that the accused are criminally liable and must answer and explain what they did with the money. There may be many reasons why the acquittal documents have not been made available to the court because of the view already held of the entire transaction and could have gone missing.
CONCLUSION
35. In the absence of any direct evidence showing dishonest application of the funds in question by the three accused, whether failure to submit returns, assuming that no acquittals were submitted although defence maintain that they were submitted, is this enough to infer criminal culpability of dishonest application? Lack of acquittal of funds expended is not a criminal offence nor does it provide evidence for criminal prosecution in dishonesty offences. It may provide corroborative evidence of theft but it cannot be the primary evidence on which the court can draw inferences of criminal intent.
36. On the evidence before me, I am not satisfied that a prima facie case has been made out. I will therefore not call upon the three accused to answer the charge. The no-case submission is upheld, the case is dismissed and the accused are acquitted.
37. I order their bail monies to be refunded to them forthwith.
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence
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URL: http://www.paclii.org/pg/cases/PGNC/2020/443.html