SC1468

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA No.4 OF 2014

BETWEEN:

PAUL TIENSTEN
Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: David, J Sawong, J & Kassman, J
2014: 30th October & 19th December

CRIMINAL LAW – appeal against conviction – misappropriation – no error committed – under all circumstances of case verdict not unsafe or unsatisfactory – appeal dismissed – Supreme Court Act, Section 23. 

PNG Cases cited:

John Beng v The State (1977) PNGLR 115
Kasaipwalova v The State [1977] PNGLR 257
Lawi v The State (1987) PNGLR 183
OK Tedi Mining Limited v Niugini Insurance Corporation and Ors [1988–1989] PNGLR 355
Opai Kunangel v The State [1985] PNGLR 144
Peter Wararu Waranaka v Gabriel Dusava (2008) SC980
Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145
Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533
The State v Gabriel Ramoi [1993] PNGLR 390 
The State v Francis Natuwohala Laumadava [1994] PNGLR 291
The State v Robin Erick (2006) PGNC 41; N3023
Ura Francis Miriva v The State (1981) SC197

Overseas cases cited:

Gail Riddel v The Secretary to the Department of Social Security [1993] FCA 261
Ratten v Queen (1972) AC 378
R v Visser [1983] 3 NSWLR 240; 12 A Crim R 315
R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA)
R v Roughley (1995) 5 Tas R 8; 78 A Crim R 160 (CCA)
R v Fordhan (1997) 98 A Crim R 359 (NSW CCA)
Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68

Counsel:

P. Kaluwin, for the State
G. J. Sheppard, for the Prisoner
 
JUDGMENT

19th December, 2014

1.	BY THE COURT: In the National Court constituted by His Honour, Deputy Chief Justice, Sir Salika (the Learned Trial Judge) at Waigani on the 10th of September 2013, the appellant, Paul Tiensten (the Appellant) was indicted with one count of conspiracy and another count of misappropriation pursuant to Sections 407(1)(b) and 383A(1)(2) of the Criminal Code respectively. For the first count, it was alleged that between the 1st of May 2010 and the 31st of March 2011 at Port Moresby he conspired with Eremas Wartoto, William Sent and Ruby Zarriga to defraud the Independent State of Papua New Guinea by fraudulently causing it to pay a sum of K10 million (the subject funds) to Travel Air. For the second count, it was alleged between the 1st of May 2010 and the 31st of March 2011 at Port Moresby, he dishonestly applied to the use of Travel Air, the subject funds, the property of the Independent State of Papua New Guinea. The Appellant denied both charges and a trial ensued.

BACKGROUND

2.	The Appellant was the sitting of Member for the Pomio Open Electorate in the East New Britain Province in the current term of the National Parliament and also was Minister for the Department of National Planning and Monitoring. The State alleged that between the 1st of May 2010 and the 31st of March 2011 at Port Moresby in the National Capital District, he conspired with Eremas Wartoto, Managing Director of Travel Air and a number of senior officers of the Department of National Planning and Monitoring (the Department) namely, William Sent and Ruby Zarriga to defraud the Independent State of Papua New Guinea by fraudulently causing it to pay the subject funds to Travel Air. It was alleged that the Appellant and his co-conspirators with their knowledge and skill levels knew that the subject funds which were parked under the Public Investment Programme administered by the Department was budgeted for Airfreight subsidy for existing Third Level Airlines operating in the country, but caused the payment to be made to Travel Air, which was a new private airline as seed capital to start up the airline contrary to the intended purpose of the subject funds. It was further alleged that as a consequence, the Appellant dishonestly applied the subject funds to the use of Travel Air.

3.	There was evidence before the Learned Trial Judge that Travel Air through Eremas Wartoto submitted two proposals to the Appellant in his capacity as the Minister for the Department. On the first proposal, submitted under cover of a letter under the Travel Air letterhead addressed to the Appellant signed by Eremas Wartoto as Managing Director – SWT Group of Companies, which was entitled Airline Subsidy Proposal to Papua New Guinea Development Strategy 2010-2030 - The Economic Corridors South Coast Corridor (East New Britain and West New Britain), the Appellant made a written notation dated 20th of October 2010 marked to the attention of the then Secretary of the Department, Mr. Lelang in these terms:

"Allocate K9.8 million seed capital as per this proposal for the implementation of South Coast Economic Corridor for both East and West New Britain in 2011 PIP Budget."

4.	When the second proposal, which was similar to the first proposal and submitted under cover of a letter under the Travel Air letterhead addressed to the Appellant dated 17th of May 2010 and under the hand of Eremas Wartoto as the Executive Chairman of Travel Air, entitled South Coast Economic Development Corridor Freight Subsidy, was received, it was marked by the Appellant to the attention of Ms Zarriga who was the Acting Secretary of the Department at the time with a written notation addressed to her in these terms:

"Acting Secretary – Ms. Zarriga
Please facilitate the release of K10 million under the 2011 Budget for this very important ..... For the Corridor Development targeting the Rural PNG".

5.	The second proposal with the notation on it was received by the Secretary's office on 23rd of March 2011. It was alleged that this notation constituted a directive to Ms Zarriga to facilitate the release of the subject funds. The subject funds were approved to be paid to Travel Air and subsequently on the 6th May 2011, the Appellant handed over a K10 million cheque to Eremas Wartoto. The prosecution evidence consisted of both documentary and oral evidence.

6.	The documentary evidence comprised:

1.	the Record of Interview dated the 15th of November 2011 (Exhibit "A");

2.	Audit Report compiled by Ekip Kop dated the 27th of September 2011 (Exhibit "B");

3.	Public Investment Programme Guidelines (Exhibit "C");

4.	2011 Estimates of Development Expenditure of National Departments, Statutory Authorities and Provincial Governments (Exhibit "D");

5.	Air Freight Subsidy – PIP 3400 (Exhibit "E");

6.	Travel Air Airline Subsidy Proposal to PNG Development Strategic Plan 2010-2030 (Exhibit "F");

7.	Travel Air South Coast Economic Development Corridor Freight Subsidy (Exhibit "G");

8.	Internal Minute by William Sent dated 21st of March 2011 (Exhibit "H");

9.	Completed Requisition for Expenditure (FF3) and General Expenses (FF4) for K10 million (Exhibit "I");

10.	Copy of Cheque No.000158 dated 31st of March 2011 payable to Travel Air for K10 million (Exhibit "J");

11.	Transaction Report of payment made to Travel Air (Exhibit "K");

12.	Current Extract from Office of Registrar of Companies for registration of Travel Air as a business name (Exhibit "L");

13.	Current Extract from Office of Registrar of Companies for registration of Travel Air Ltd as a company (Exhibit "M");

14.	Witness Statement of Imelda Mivana dated 24th of August 2011 (Exhibit "N");

15.	ANZ Bank Statements for Account No.13723775 in the name of Travel Air (Exhibit "O");

16.	189 copies of deposits and withdrawal slips from ANZ Bank Account No.13723775 in the name of Travel Air (Exhibit "P");

17.	Witness Statement of Joseph Lelang dated 19th of July 2011 (Exhibit "Q");

18.	Witness Statement of Jacob Mera dated 5th of September 2011 (Exhibit "R");

19.	Witness Statement of Paul Danggun dated 22nd of November 2011 (Exhibit "S");

20.	Witness Statement of Juliana Kubak dated 2nd of September 2011 (Exhibit "T");

21.	Witness Statement of Daniel Ropalgarea dated 5th of January 2012 (Exhibit "U");

22.	Witness Statement of Wilson Sagati dated 28th of July 2011 (Exhibit "V");

23.	Witness Statement of Joseph Kintau dated 4th of April 2011 (Exhibit "W");

24.	Witness Statement of Manly Ua dated 23rd of August 2011 (Exhibit "X");

25.	Witness Statement of William Vate dated 30th of August 2011 (Exhibit "Y");

26.	Witness Statement of Babaga Naime dated 4th of July 2011 (Exhibit "Z");

27.	Witness Statement of Sialis Taman dated 6th of December 2011 (Exhibit "AA").

7.	The witness statements of Ekip Kop, Monica Lopyul, Reuben Baloiloi and Agatha Poga are referred to by the Learned Trial Judge in the verdict as forming part of the prosecution's documentary evidence tendered by consent, but mysteriously the transcript produced for purposes of the appeal does not demonstrate that such was the case or that it covers the entire trial. We will not comment any further on the subject as the Appellant has not raised any issue on this aspect in the notice of appeal.

8.	The prosecution called sworn oral evidence from Ekip Kop, Joseph Lelang, Jacob Mera, Paul Danggun and Juliana Kubak. They were all subject to cross-examination.

9.	The defence evidence consisted of sworn oral evidence from the appellant himself, Simon Erinuka, William Sent and Shaha Tofayel and documentary evidence.

10.	The defence documentary evidence consisted of:

1.	Memorandum of Understanding between the State and Travel Air Limited dated 6th of May 2011 (Exhibit "1");

2.	Papua New Guinea Strategic Plan 2010-2030 (Exhibit "2");

3.	Papua New Guinea Medium Term Development Plan 2011-2015 (Exhibit "3");

4.	Travel Air Document (Exhibit "5");

5.	Summary of Principal Terms and Conditions (Exhibit "8");

6.	Invoice from Civil Aviation for registration of four aircrafts and copy of cheque (Exhibit "9");

7.	Copy of Application Form for registration (Exhibit "10");

8.	Copy of Application Form for registration of another aircraft (Exhibit "11");

9.	Copy of Certificate of Registration of Aircraft 20202 (Exhibit "12");

10.	Copy of Airworthiness Certificate for one of the aircrafts issued by CASA, Civil Aviation (Exhibit "13"). 

11.	Again, it appears to us that the transcript produced for purposes of the appeal does not cover the entire trial as exhibit numbers of some defence exhibits are missing. 
 
12.	It was not disputed at the trial that the subject funds which were the property of the State were paid to Travel Air by cheque No.000158 dated 31st of March 2011 drawn by the Department. The contested issues with regard to the essential elements of the offence of misappropriation were; whether the Appellant acted dishonestly; and whether the Appellant applied the subject funds to the use of Travel Air? 

13.	After a six day trial, on the 22nd of November 2013 at Waigani, the Appellant was found not guilty of the count of conspiracy, but was found guilty and convicted of the count of misappropriation. The Learned Trial Judge placed heavy reliance on the evidence of Ekip Kop and Joseph Lelang which he found as credible and reliable and rejected the evidence of the Appellant and William Sent which he found as not credible in entering the conviction. On the 28th of March 2014, the Appellant was sentenced to nine years imprisonment in hard labour and it was ordered that four years of the sentence would be suspended upon restitution of the subject funds within the first four years of imprisonment.

14.	On the 2nd of May 2014, the Appellant lodged his notice of appeal against the whole of the judgment of the Learned Trial Judge given on the 22nd of November 2013 and the 28th of March 2014. The appeal is basically against conviction.

GROUNDS OF APPEAL

15.	There are ten grounds of appeal and they are set out in detail at paragraph 3 (3.1 to 3.10) of the notice of appeal. We set out below the grounds of appeal verbatim: 

"3.1	The Learned Trial Judge erred on a question of mixed fact and law in finding at paragraph 61 of the judgment that the words written by the Appellant on a proposal handed to him by Mr. Wartoto (Exhibit 5) amounted to a "direction" and consequently an application of K10 million ("the subject funds") within the meaning of Section 383A (1) (a) of the Criminal Code for the following reasons:

(a)	Section 148 of the Constitution, expressly provides that a Minister (including the Appellant) does not have the capacity to direct officers of his Department. The words written by the Appellant on Exhibit 5 were therefore not capable of being construed as a direction.

(b)	At paragraph 89, the Learned Trial Judge correctly found that Section 148 of the Constitution provided that a Minister did not have the capacity officers of the Department and should have then gone on to conclude that if there is no power to make a directive then by definition the Appellant was not guilty of dishonestly applying the subject funds.

(c)	Under the provisions of the Public Finances Management Act, the exclusive capacity to "apply" the subject funds lay with the Secretary (as Departmental Head), who is required to approve the application of all funds under Section 32 of the Act.

(d)	The uncontested evidence tendered at the trial (at page 91-94 of the transcript) was that the appellant had no input or whatsoever to do with the application of the subject funds, such application being made in fact by Mrs Ruby Zarringa, not the appellant.

(e)	The literal meaning of "facilitate" is to "make an action or process easy or easier." There was no bases that the Learned Trial judge could have safely arrived at the conclusion in law that there was any evidence before the court that the notation on the proposal was a direction to make the application of the subject funds easy.

(f)	The notation was nothing more than any informal reminder for the secretary to consider the payment in accordance with the intervention policy of the government and incompliance with the Public Finance Management Act, consistence with evidence of the Appellant.

3.2	Under the circumstances of the case, the verdict of "guilty" was unsafe or unsatisfactory having regard to, and for reasons that the Learned Trial judge erred on a question of law in finding (at paragraph 90 of the judgement) that there was sufficient evidence to prove beyond reasonable doubt, the element of "dishonest application" alleged against the Appellant pursuant to section 383A(1) (a) of the Criminal Code when instead he should have found that there was no evidence or insufficient evidence to establish that element to the required standard and consequently should have acquitted the Appellant for the following reasons:-

(a)	there was no evidence or insufficient evidence of intent by the appellant to act dishonestly in the application of the subject funds for the reason that uncontested evidence (at pages 91-94 of the transcript) established that such application was the responsibility of certain Department Officers and no the Appellant.

(b)	Uncontested oral evidence of the prosecution witness, Mr Joseph Lelang before the court established that another public servant (Ruby Zarriga) who in fact applied the subject funds.(pages 92-96)

(c)	The application of the subject funds by Zarriga was in accordance with government policy, in that the evidence of the Appellant and supported by defences witnesses (pages 186-188 of the transcript) was that the subject funds were part of the greater development budget which included interventions in accordance with government policy.

(d)	The Learned Trial Judge, with respect, incorrectly found against the evidence and weight of the evidence that the Appellant was responsible for the application of the subject funds were uncontested evidence (at page 92 of the transcript) was before the court that final authority, for such application, lay exclusively with the secretary (as Department Head) and is required to approve the funding pursuant to section 32 of the Public Finance Management Act.

(e)	There was uncontested oral evidence by William Sent (at pages 189-198 of the transcript) that the process appraisal was undertaken by the Department of National Planning and Monitoring in which Lelang and/or Zarriga were the final authority, as Department Heads, pursuant to section 32 Public Finance Management Act.

(f)	The Learned Trial Judge, with respect, failed to find (as he should have) that the application of the subject funds was exclusively within the function of the Head of the Department who is required to follow the correct procedures and/or provide written advice, in accordance with Clauses 16.8-16.10 of the Financial Management Manual in relation to the appropriation and application of the subject funds to the Appellant on those procedures. There was no evidence before the court that the Appellant was provided with any such written advice and in fact there was evidence before the court that the Appellant was not provided with any written advice. (pages 89, 92, 93, 94, 95 of the transcript)

(g)	The Learned Trial Judge should have found, that it was impossible for the Appellant to have made any application of the subject funds in this instance and had no responsibility or capacity to do so based on the following evidence:-

(i)	The submission of 20 October 2010 for "seed capital" was consistent with the budget process for appropriating the subject funds for the 2011 development budget;

(ii) 	The subject funds were appropriated for the express purpose of seed capital for Travel Air under the intervention policy and in accordance with the development budget of the government;

(iii)	Joseph Lelang knew or ought to have known the subject funds was earmarked for Travel Air as "seed capital" and to be appropriated under the development budget, based upon discussions with the Appellant (page 89 of the transcript);

(iv)	The oral evidence by Lelang confirmed that the subject funds were placed under the auspice of "Airfreight Subsidy" by the Secretary, (pages 84 and 90 and the evidence of Jacob Mera at page 111 of the transcript) without any written advice provided to the Appellant under the Public Finance Management Act and Clauses 16.8-16.10 of the Financial Management Manual that the "Air Freight Subsidy" was an existing programme and the subject funds were not available for the exclusive use of Travel Air;

(v)	There was no policy framework in relation to the "Air Freight Subsidy" and the Memorandum of Understanding was entered into in the absence of policy framework to establish Travel Air's requirements for compliance;

(vi)	That the capacity to make this application of the subject funds (or any application) was (is) vested in the Secretary under section 32 of the Public Finance (Management) Act and not the Appellant;

(vii)	The notation of 23 March 2011 to Ruby Zarriga was a reminder, and not a direction, for the subject funds to be provided in accordance with the Appellant's innocent and honest understanding that the subject funds were earmarked for Travel Air pursuant to government policy;

(viii)	The subject funds were in fact applied by Zarriga in her capacity as acting Secretary of the Department from funds appropriated in accordance with the government's intervention policy completely consistent with the Appellant's evidence and his notation to Ruby Zarriga;

(ix)	Based on the intervention policy, the appropriate appraisal process was followed by the public servants in applying the subject funds to Travel Air (pages 131 and 189-198 of the transcript);

(x)	The Appellant could not in law, make any direction for any application of the subject funds, on the basis the Appellant had no power or control to make a direction pursuant to section 148 of the Constitution (paragraph 89 of the judgment);

(xi)	That the responsibility for the due diligence for the application of the subject funds lies with the public servants of the department and not the Appellant (page 177, Simon Erinuka evidence).

(xii)	At paragraph 16, the court referred to evidence that "in cross-examination Mr. Lelang agreed under the Public Finance Management Act the Department Head for the Department of National Planning had the power under s.32, to approve requisitions for expenditure". 

(xiii)	At paragraph 16 "Mera agreed that under s.32 of the Public Finance Management Act, the Department Head of DNPM had the power to approve requisitions for expenditure and that was where the final authority was vested.

(xiv)	At paragraph 66, His Honour found "It appears to me from the evidence that every officer in the Department including the Minister and the Secretary knew the Secretary for National Planning and Monitoring had unlimited authority to approve unlimited financial expenditure of any amount".

(xv)	The learned Trial Judge should have then found based on the evidence before the court that the Appellant was not responsible for the how, where and when any funds would be applied; rather it was, based on the evidence, vested in the Secretary under section 32 of the Public Finance Management Act and not the Appellant.

3.3	The Learned Trial Judge erred on a question of mixed fact and law by finding that there was sufficient evidence to establish to the required standard, the element of dishonesty, where for the following reasons the learned Trial Judge should have found instead that there was no evidence or insufficient evidence to establish the element of dishonesty to the required standard:-

(a)	At paragraph 58, the Learned Trial Judge found that there was "no evidence of any secret plans to wrongfully use K10 million in favour of Travel Air between the accused, Ms Zarriga, William Sent, Takale Tuna, Paul Daggun and Mr Wartoto. There is also no direct evidence of any plans between those mentioned to give K10 million to Travel Air" .

(b)	At paragraph 59, the Learned Trial Judge found there was "no evidence of any secret plans between the accused, Eremas Wartoto, Ruby Zarriga and her department officers involved in the releasing of K10 million".

(c)	The Learned Trial Judge then quite rightly found that the Appellant was not involved in a conspiracy and was therefore not guilty of conspiracy.

(d)	Upon that decision and by definition, the Learned Trial Judge should have concluded that in the absence of a conspiracy with the Appellant, and that the act of dishonestly applying the subject funds was the act of others.

(e)	At paragraph 60 his Honour concluded "the actions of Ruby Zarriga, Takale Tuna, William Sent and Paul Daggun seem to suggest to me that they went along with the direction of the Minister and agreed to facilitate the release of the K10 million to Travel Air".

(f)	The Learned Trial Judge should have, after reaching the above conclusion, accepted that the facilitation of the subject funds was the act of Ruby Zarriga, Takale Tuna, William Sent and Paul Daggun and not the dishonest act of the Appellant.

3.4	The Learned Trial Judge erred on the question of mixed fact and law where His Honour, at paragraph 88 applied the subjective test for dishonesty, and found the Appellant guilty of dishonestly applying the K10 million where instead His Honour should have found:-

(a)	there was no evidence or insufficient evidence before the Court that the Appellant believed he had acted dishonestly or considered that the "directive" was dishonest or the Appellant had formed the intent to be dishonest.

(b)	There is substantial evidence before the court that it was others who were responsible for the application and processing of the subject funds (oral evidence of William Sent – pages 189-198 of the transcript). 

3.5	The Learned Trial Judge erred on the question of mixed fact and law when His Honour found at paragraph 43 that Travel Air was not "operational". where instead he should have found that that Travel Air was in the process of becoming operational, because:-

(a)	The CEO of Travel Air gave uncontested evidence that Travel Air was in the process of becoming operational. (at pages 227-234 of the transcript)

(b)	The CEO of Travel Air gave uncontested oral evidence as to the status of the Airline in anticipation of acquiring aircraft to fulfil their commitments under the Memorandum of Understanding. (at pages 227-234 of the transcript)

(c)	The CEO of Travel Air gave uncontested oral evidence that Travel Air was impeded by the National Airports Corporation and CASA lack of action to certify smaller airstrips, which prevented Travel Air from servicing the rural areas. (at pages 227 – 234 of the transcript).

(d)	For all intents and purposes Travel Air was actively undertaking the correct process to become operational and in fact did become operational.

3.6	The Learned Trial Judge erred on the question of mixed fact and law where His Honour found at paragraph 52 that the Senior Officers "ought to have known" that the minute by William Sent was not true or accurate, because:-

(a)	There is no basis in law or upon the facts that supports such conclusion and was not open to the Learned Trial Judge to make such conclusion.

(b)	The Learned Trial Judge speculated that the senior officers had some concerns on the validity of the memo where no such evidence was before the court.

3.7	The Learned Trial Judge erred on a question of mixed fact and law by allowing prejudicial evidence in relation to disciplinary action and charges of insubordination if the "direction" was not complied with, as follows:-

(a)	At paragraph 12 of the decision of the Learned Trial Judge "Mr Lelang contended that this amounted to a direction which he was compelled to implement. He contended that if he did not implement the Accused directives, he would have been disciplined and charged with insubordination".

(b)	At paragraphs 61 and 62 the court found "Ms Zarriga had no choice but to facilitate the release of the K10 million" and "had Ms Zarriga not facilitated the release of the K10 million, I wonder what might have been" and "... if he refused a ministerial direction such as that he would be charged with insubordination and his job will be on the line".

(c)	At paragraph 62 the learned Judge found that the notation on the first proposal to the former secretary, Lelang, "Allocate K9.8 million seed capital as per this proposal for the implementation of South Coast Economic Corridor for both East and West Britain in 2011 PIP Budget" was a "directive" because in the event Lelang did not implement the "directive" he would have been disciplined and charged with insurbordination is prejudicial to the Appellant. This evidence should have been rejected by the Learned Trial Judge and His Honour should have found instead that:-

(i)	The accused did not have the power to discipline, raise charges of insubordination or terminate employment in respect to any public servant, a circumstance that the former secretary knew (or ought) to have known based on his experience;

(ii)	The National Executive Council ("NEC") is the only body with the power to discipline or raise charges of insubordination;

(iii)	The former secretary was (or ought to) have been aware of the NEC's power and there was no perceived, apparent or real intention to institute disciplinary charges or charges of insubordination in relation to the notation; and

(iv)	There is no evidence or there was insufficient evidence before the court that the former secretary or any other public servant's job "was on the line" in respect to not following proper administrative or budgetary guidelines pursuant to the Public Finance (Management) Act.

3.8	The Learned Trial Judge erred on the question of mixed fact and law by refusing the Appellant, upon application by the Appellant's legal representative, to call one more witness to give evidence, Ruby Zarriga, on behalf of the Appellant.

At paragraphs and 60 and 61, His honour referred back to the note to Ms Zarriga and found "to my mind I conclude that the words amount to direction. This is because Ms Zarriga had no choice but to facilitate the release of the K10 million."

The Learned Trial Judge should have allowed the full ventilation of the evidence of the defence by allowing an adjournment to enable the defence witness to appear and give evidence, failure to do so resulted in:-

(a)	no evidence from the one person who had direct knowledge of the "direction" and its implication;

(b)	prejudice to the Appellant as there was no evidence before the court for his honour to make such a conclusion; and

(c)	a breach of the rights afforded to the Appellant pursuant to sections 32, 37 and 59 the Constitution and denying the Appellant a fair trial.

3.9	The Learned Trial Judge erred on the question of mixed fact and law when finding at paragraph 88, that the "only disputed element of the charge under s.383A (1)(a) of the Criminal Code is the element of dishonesty". The element of application was and is disputed because:-

(a)	At paragraph 21 Paul Duggan responded to the court inquiry that he was told "verbally" by Mr Tuna that the "Accused wanted the requisitions raised immediately" which is hearsay and cannot be relied upon. 

(b)	Notwithstanding there was no objection to the witness response, the Learned Trial Judge ought to have known that this was hearsay and prejudicial to the defence of the Appellant and:-

(i)	Excluded such evidence on his own volitation; or

(ii)	Placed no weight on the evidence.

3.10	The Learned Trial Judge erred on the question of mixed fact and law where at paragraph 84 His Honour refused to accept the evidence that the Secretary for the Department of Planning and Monitoring "was at liberty or had unlimited powers to approve unlimited requisitions for expenditure from those public monies held by the Department" and instead should have found:-

(a)	That the Secretary of the Department had the final authority in relation expenditure under section 32 of the Public Finance Management Act and not the Appellant.

(b)	At paragraphs 46, 47 and 48 of the judgement there were facts before the court that Zarriga noted to the Acting Deputy Secretary to "appraise and advise" – not facilitate.

16.	The ten grounds of appeal can be summarised as follows. Ground 3.1 relates to the issue of the notation written on the Travel Air proposal by the Appellant to Acting Secretary Ms Zarriga. Grounds 3.2, 3.3, 3.4 and 3.9 relate to the issue of sufficiency or not of evidence to establish, to the required standard, the element of dishonesty. Ground 3.5 relates to the issue of the status of Travel Air as an airline. Ground 3.6 relates to the issue of how Mr Takale Tuna and Ms Ruby Zarriga treated the minute written by William Sent as to its veracity or validity. Ground 3.7 relates to the issue of disciplinary action for insubordination. Ground 3.8 relates to the issue of not calling Ms. Zarriga as a witness for the defence. Ground 3.10 relates to the issue of the authority of the Secretary of the Department in relation to expenditure of public funds held by the Department.

17.	These grounds suggest that the Learned Trial Judge fell into error in not finding that the prosecution had not proven beyond reasonable doubt that the Appellant dishonestly applied the subject funds to the use of Travel Air.

THE LAW

18.	An appeal against conviction is governed by Section 23(1) (a) of the Supreme Court Act. Section 23(1) (a) states:-

"Subject to Subsection (2), on an appeal against conviction the Supreme Court shall allow the appeal if it thinks that-

(a)	The verdict should be set aside on the grounds that under all the circumstances of the case it is unsafe or unsatisfactory..." 

19.	The principle of law on appeals against conviction is stated in the oft quoted Supreme Court decision of John Beng v The State (1977) PNGLR 115 where it was held:

"The Supreme Court must be satisfied that there is, in all the circumstances, a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed".

ISSUES

20.	The central issue raised by the ten grounds of appeal for our consideration and determination will therefore be, whether in all the circumstances of the case, the Appellant has demonstrated that there is a reasonable doubt as to the safeness and satisfactoriness of the verdict? 
 
21.	Other issues tangential to the central issue are:

1.	Whether the Learned Trial Judge fell into error when he found that the words "Please facilitate the release of K10 million under the 2011 Budget for this very important ... for the corridor development targeting the rural PNG" written by the Appellant on the Travel Air proposal addressed to the Acting Secretary, Ms Zarriga on 23rd of March 2011 amounted to a direction?

2.	Whether the Learned Trial Judge fell into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of dishonesty?

3.	Whether the Learned Trial Judge fell into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of applying funds to the use of others?

4.	Whether the Learned Trial Judge fell into error when he found that Travel Air was not operational?

5.	Whether the Learned Trial Judge fell into error when he found at paragraph 52 of the judgment that Mr. Takale Tuna and Ms. Ruby Zarriga as senior officers ought to have known that the matters raised by Mr. Sent in his minute to them were not true and accurate?

6.	Whether the Learned Trial Judge fell into error by allowing evidence in relation to possible disciplinary action for insubordination if the "direction" were not complied with?

7.	Whether the Learned Trial Judge fell into error when he refused to grant the Appellant's application for adjournment to enable him to call Ms Zarriga to give evidence?

8.	Whether the Learned Trial Judge fell into error when he refused to accept the evidence that the Secretary for the Department was at liberty or had unlimited powers to approve unlimited requisitions for expenditure from those public funds held by the Department? 

First Issue

Whether the Learned Trial Judge fell into error when he found that the words "Please facilitate the release of K10 million under the 2011 Budget for this very important ... (unreadable)... for the corridor development targeting the rural PNG" written by the Appellant on the Travel Air proposal addressed to the Acting Secretary, Ms Zarriga on 23rd of March 2011 amounted to a direction?

22.	It was submitted by the Appellant that the Learned Trial Judge fell into error in finding that there was a "direction" because:

(a)	Section 148 of the Constitution does not confer on a Minister any power of direction or control over any department over which he or she has political responsibility inclusive of its officers;

(b)	Consequently, the Learned Trial Judge could not, by law, give any direction to the Department of National Planning and Monitoring and its officers to apply the subject funds;

(c)	The notation the Appellant made on the second proposal in any event, in fact and law, was not a direction or could not be construed as a direction.

23.	It was further submitted by the Appellant that the power to apply any fund held by the Department was within the sole and exclusive duty of the Secretary of the Department as the Department Head in accordance with Section 32 of the Public Finances (Management) Act. Accordingly, the Appellant had no input or played no part whatsoever in the application of the subject funds which was done by Ms Zarriga in her capacity as the Acting Secretary consistent with her responsibilities pursuant to Section 32 of the Public Finances (Management Act and the subject funds were part of a government intervention policy and intended for the express purpose and use of Travel Air.

24.	Given that the Learned Trial Judge found that the unauthorised application of the subject funds was a direct result of the Appellant's "direction", counsel for the Appellant referred us to Kasaipwalova v The State [1977] PNGLR 257; Gail Riddel v The Secretary to the Department of Social Security [1993] FCA 261 and Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68 which, it was submitted, are cases that have considered what is and what is not a direction and these cases demonstrate that the notation on the second proposal by Travel Air was not a direction at all.

25.	 The Respondent submitted that Ground 3.1 has no basis and must fail. Mr. Kaluwin for the Respondent, relying on Peter Wararu Waranaka v Gabriel Dusava (2008) SC980, argued that when making its own independent assessment of the evidence, a Court exercising an appellate jurisdiction must have full regard to the fact that the trial Court had the benefit of having seen and hearing the witnesses. It was therefore contended that whether the Appellant had the capacity to direct does not change the fact that the words used by the Appellant can be construed as a direction. Counsel argued that the Appellant cannot distance himself from the words used and their effect. He said that the only reason why the Acting Secretary Ms Zarriga acted on the matter was because of the delivery of the note by the Appellant. He submitted that without this note, it could reasonably be concluded that the subject funds would not have been made available to Travel Air.

26.	It was argued that the Appellant's argument based on Section 148 of the Constitution has no merit and should be rejected on the basis that proof of the essential elements of the offence of misappropriation does not require adherence to Section 148 of Constitution. The essential elements the Respondent was required to prove beyond reasonable doubt, it was submitted, were that; the Appellant acted dishonestly; the Appellant applied the property to his own use or the use of others; and that the property belonged to another and the Learned Trial Judge found that all three essential elements were established to the required standard.

27.	Mr. Kaluwin further contended that prosecution witness, Ekip Kop's evidence given under re-examination regarding the notation to Ms Zarriga being construed as an authoritative direction which had to be abided by or followed was appropriately considered by the Learned Trial Judge as none of the relevant questions or answers was objected to.

28.	The Learned Trial Judge found that the Appellant's notation amounted to a direction upon consideration of the evidence of Mr. Lelang with regards to the notation to him with respect to the first proposal and the evidence of Ekip Kop with regards to the second proposal. He gives his reasons at paragraph 61 to paragraph 64 of the verdict. With regards to the first proposal, Mr. Lelang said that the notation to him amounted to a direction. With regards to the second proposal, Mr. Kop said the notation amounted to an authoritative direction. Mr. Kop's evidence on this aspect was not objected to by the Appellant. With notations of similar nature made by the Appellant in both the first and second proposals, at paragraph 62, the Learned Trial Judge concluded that the words "Please facilitate the release of K10 million..." in the second proposal amounted to a direction to facilitate the release of the subject funds.

29.	We have considered the Appellant's submissions based on the prohibition in Section 148 of the Constitution and accept that Mr. Lelang in his evidence admitted that the Appellant lacked the authority to approve or direct the release of the subject funds. However, the Learned Trial Judge went on to state at paragraph 59 of the verdict that ".. it is apparent to me that the accused assumed the role of the Secretary for the DNPM when he marked down the proposals to Lelang and Zarriga respectively. This is because he had no authority to direct or recommend any funding releases, as that responsibility belonged to the Secretary of the Department only." We would agree with the Respondent's submission that adherence to Section 148 or not is immaterial for purposes of establishing the essential elements of the offence of misappropriation. 

30.	We have also considered Kasaipwalova, Gail Riddel and Waratah Coal Pty Ltd. These cases suggest that an instruction or direction must be free of ambiguity and uncertainty to be binding between parties and must be viewed from the context in which it appears and need not be in any particular form written or otherwise. We consider that these cases do not assist the Appellant and reject his submissions. On the other hand, these cases only go to support the approach taken by the Learned Trial Judge.

31.	Finally, both parties nor the Learned Trial Judge referred to the Record of Interview when discussing whether the notation under consideration was a direction or not. It is instructive that we set out below Question and Answer 27:

"Q27.	Is it true that you directed the Acting Secretary at that time, Ms Ruby Zarriga to facilitate the payment, as per your footnote dated 23rd March 2011?
Ans.	That's correct, it's part of the implementation of budget."

32.	The Record of Interview was tendered by consent and matters raised there stand unchallenged in any manner whatsoever. We consider therefore that this is a direct admission by the Appellant that the notation under consideration was a direction and nothing else should be read into that answer.

33.	The admission in the Record of Interview supports the Learned Trial Judge's finding that the notation under consideration was neither a request nor a recommendation, but a direction.

34.	The Learned Trial Judge did not fall into error when he found that the notation under consideration amounted to a direction. We would therefore dismiss this ground of appeal. 

Second Issue

Whether the Learned Trial Judge fell into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of dishonesty?

35.	Before we consider this issue in detail, it is necessary for us deal with Ground 3.9 first which is considered together with Grounds 3.2 and 3.3 in addressing this issue. It was submitted by the Appellant that the Learned Trial Judge knew or ought to have known that the testimony of Paul Duggan was hearsay and should have excluded the testimony or placed no weight on it. The Respondent on the other hand has submitted that that ground has no basis and must fail. It was submitted that the Appellant's counsel made a conscious decision not to object to Mr Duggan's evidence that he was told verbally by Mr. Tuna that the accused wanted the requisitions raised immediately. To support this submission, Mr. Kaluwin referred the Court to R v Visser [1983] 3 NSWLR 240 at 242 and 12 A Crim R 315 at 318-319 where Hunt, J with whom Street, CJ and Mahoney JA agreed said:

"It will be a very rare case where a trial judge is justified in intervening to reject evidence where the accused is represented and where no objection has been taken to it. The duty of a trial judge to put to the jury any matters upon which the jury, upon evidence, could find for the accused, whether or not it has been raised by his counsel (Pemble v The Queen (1971) 124 CLR 107 at 118) does not include an obligation to reject evidence to which his counsel has not objected. An objection may deliberately not be taken to inadmissible evidence for a variety of reasons. Quite often, it is because counsel for the accused sees some advantage to his client in not fighting an irrelevant issue in relation to that evidence, even where the evidence may otherwise be prejudicial to his client. An intervention by the trial judge may sometimes cause more prejudice than the evidence which he intervenes to reject".

36.	This proposition was followed in R v Fordhan (1997) 98 A Crim R 359 at 361 (NSW CCA). It has been held however that a judge has an overriding duty to reject inadmissible evidence: R v Birks (1990) 19 NSWLR 677 at 703-704; 48 A Crim R 385 at 410-411 (CCA); R v Roughley (1995) 5 Tas R 8 at 30; 78 A Crim R 160 at 176 (CCA).

37.	All these decisions are of persuasive value

38.	Was Mr Duggan's evidence hearsay therefore inadmissible? It has been held that words to prove the fact of what was said will be admissible if relevant: Ratten v Queen (1972) AC 378. This is an exception to the rule against hearsay. There, Lord Wilberforce at 387 said:

"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on "testimonially" ie, as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramaniam v Public Curator [1956] 1 WLR 965 at 970:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made."

39.	We consider that Mr Duggan's evidence falls within the exception to the rule against hearsay so the Learned Trial Judge properly allowed his evidence when it was not objected to and consequently considered his evidence. We would therefore accept the Respondent's submission and dismiss Ground 3.9.

40.	Having determined that Mr. Duggan's evidence was properly admitted without any objection on the part of the Appellant through his counsel, we now address this issue in more detail.

41.	Did the Learned Trial Judge fall into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of dishonesty? 

42.	It was submitted by the Appellant that there was no evidence before the Learned Trial Judge that he acted with intent to cheat, deceive or mislead. He said the subject funds were part of a government intervention policy and intended for the express purpose and use of Travel Air and that the funds were applied by the Acting Secretary of the Department in accordance with her sole and exclusive responsibility under Section 32 of the Public Finance Management Act.

43.	The Appellant also submitted that the Learned Trial Judge fell into error in applying the subjective test propounded in The State v Francis Natuwohala Laumadava [1994] PNGLR 291 when there was no evidence or insufficient evidence on a subjective analysis that the Appellant had acted dishonestly.

44.	The Respondent however submitted that the Learned Trial Judge applied the correct tests and considered all the evidence before him in determining that the Appellant acted dishonestly. 
 
45.	The question whether an accused has a particular state of mind is a question of fact to be decided by a trial judge based on all facts presented before him: Lawi v The State (1987) PNGLR 183; The State v Gabriel Ramoi [1993] PNGLR 390. The tests to determine this question are set out in Gabriel Ramoi and Francis Natuwohala Laumadava. These tests are set out at paragraph 88 of the verdict (page 317 lines 6 to 31 of the Appeal Book) and were applied to the circumstances of the present case. The subjective test in Francis Natuwohala Laumadava is not the only test as the Appellant seems to suggest. The Learned Trial Judge then gives his reasons for his finding on dishonesty from paragraphs 89 to 90 (page 317 lines 33 to 36 and page 318 lines 1 to 10 of the Appeal Book) which are restated as follows: 

"89.	In this case the accused knew or ought to have known that his direction or directive to the Acting Secretary to facilitate release of K10 million was wrong for the reasons that he had no authority to give such a direction to the Acting Secretary and also for the reason that approval for release of such funds must come from the National Executive Council. Moreover he knew that he was wielding his political muscle over an Acting Secretary and her officers.

90.	Given the accused's level of education, his intelligence, skills and experience in the Public Service and in Politics, I have no doubt in my mind that he appreciated and knew that what he was doing was wrong and that it was dishonest; that is directing the Acting Secretary to facilitate the release of K10 million was improper and dishonest. He effectively caused the Department officers to break rules."

46.	The Learned Trial Judge also stated at paragraph 60 of the verdict (page 309 lines 27 to 34 of the Appeal Book):

"60.	However the actions of Ruby Zarriga, Takale Tuna, William Sent and Paul Daggun seem to suggest to me that they went along with the direction of the Minister and agreed to facilitate the release of the K10 million to Travel Air. The evidence of Paul Daggun also seems to suggest too that Takale Tuna may have spoken to the Accused because Paul Daggun said Takale Tuna told him (Paul Daggun) that the accused wanted the requisitions raised immediately." 

47.	We find that there was sufficient evidence to establish the element of dishonesty. The Learned Trial Judge did not fall into error.

Third Issue

Whether the Learned Trial Judge fell into error when he found that there was sufficient evidence to prove beyond reasonable doubt the element of applying funds to the use of others?

48.	It was submitted by the Appellant that the Learned Trial Judge fell into error in circumstances that he did not nor could he apply the subject funds, because:-

(a)	He had no authority to make such application;

(b)	The subject funds were in respect to the governments intervention policy;

(c)	It was the sole responsibility of public servants of the Department to apply any funds;

(d)	Evidence before the court confirmed that the subject funds were in fact applied by the Acting Secretary;

(e)	The subject funds were applied by the Acting Secretary in accordance with Section 32 of the Public Finances (Management) Act;

(f)	There was evidence before the Learned Trial Judge that an appropriate appraisal process was followed, including the entering into a Memorandum of Understanding to ensure Travel Air compliance, in respect to the application of the subject funds for a intervention in accordance with government policy;

(g)	At no time was any written advice provided to him that the subject funds could not be applied as seed capital by Travel Air as is required by clauses 16.8-16.10 Financial Management Manual;

(h)	There was evidence before the court that any due diligence was the responsibility of the public servants and not him.

49.	The Learned Trial Judge had indicated in his verdict at paragraph 88 (page 317 lines 3 to 4 of the Appeal Book) that there was no dispute that the subject funds were applied by the Appellant to the use of Travel Air, but the Appellant disputes that assertion. The Learned Trial Judge nevertheless addresses the issue at paragraph 91 of his judgment (page 318 lines 12 to 25 of the Appeal Book) which we set out verbatim as follows:

"91.	Evidence shows that the accused was involved in the application of the money to Travel Air. He facilitated the release of the K10 million by his direction. Without his directive, the K10 million would not have been released. He commenced the process of the release of the money through his direction or directive. He presented the cheque to Eremas Wartoto to complete the facilitation and application. Was that application dishonest? The direction from him and causing the department officers to bypass the proper appraisal process under the guidelines and by bypassing the Public Finance Management Act and the deliberate lies in the way appraisal process and the speed in which the facilitation of the release of the funds were orchestrated, I conclude that the accused and his officers in the department dishonestly applied K10 million to the use of Travel Air thereby contravening s.383A(1)(a) of the Criminal Code."

50.	On all the evidence, we consider that the Learned Trial Judge did not err in what he said and found as set out above. In our respectful opinion, he was entitled to come to those conclusions. Accordingly, we find that the Learned Trial Judge did not fall into an error.

Fourth Issue

Whether the Learned Trial Judge fell into error when he found that Travel Air was not operational? 

51.	It was submitted by the Appellant that the Learned Trial Judge failed to give proper weight to the evidence of the CEO of Travel Air that the company was actively pursuing the process to become operational and did become operational subsequently.

52.	The Respondent has submitted that the issue which is raised under Ground 3.5 has no basis and must fail or should not be considered because the matters raised are based on fact alone and that no leave was sought to pursue the ground.

53.	It was submitted by the Respondent in the alternative that if the Court were to reject the first argument and was satisfied that the ground was based on mixed fact and law, it was the Respondent's further submission that there was evidence before the Learned Trial Judge demonstrating that Travel Air at the relevant time was neither operational nor a registered company.

54.	We are of the respectful view that Ground 3.5 considered in a wider context actually raises a question of fact so leave is required by virtue of Section 4(2)(c) of the Supreme Court Act: Opai Kunangel v The State [1985] PNGLR 144. No leave was obtained from the Supreme Court in that regard so this ground is incompetent and could be dismissed on that basis alone. We propose to consider the ground and make a determination nevertheless.

55.	We are of the respectful view that the Learned Trial Judge's conclusion that Travel Air was not operational was supported by the evidence of the Appellant himself, Mr Tofayel, Chief Executive Officer of Travel Air and Mr. Ekip Kop so the Learned Trial Judge did not fall into error. 

56.	When answering the Learned Trial Judge's inquiry on the 19th of September 2013 (approximately 3 years after the offence was allegedly committed) as to whether Travel Air was currently travelling to Pomio and other places within the south coast economic development corridor, the Appellant said no: see page 181 lines 31 to 41 and page 182 lines 1 to 7 of the Appeal Book.

57.	Mr Tofayel's evidence was that at the time of giving his evidence, no Travel Air flights was servicing the nominated airstrips in the south coast development corridor within the Southern parts of East and West New Britain such as Jacquinot Bay, Palmalmal, Gasmata, Kandrian and Bialla: see page 252 lines 25 to page 253 line 2 of the Appeal Book.

58.	Mr. Kop's evidence was that at the relevant time Travel Air was neither operational nor registered as a company according records and information received from IPA and Civil Aviation Authority: see page 46 lines 15 to 33 of the Appeal Book.

Fifth Issue

Whether the Learned Trial Judge fell into error when he found at paragraph 52 of the judgment that Mr. Takale Tuna and Ms. Ruby Zarriga as senior officers ought to have known that the matters raised by Mr. Sent in his minute to them were not true and accurate?

59.	The Appellant submitted that the Learned Trial Judge had no basis to form the view that the memorandum by William Sent was anything, but true and accurate and there was no evidence at all to support the conclusion that the Trial Judge reached. 

60.	It was submitted by the Respondent that Ground 3.6 which raises the issue has no basis and must fail as it is based on fact alone and no leave was sought.

61.	We accept the Respondent's submission. No leave was obtained from the Supreme Court in accordance with Section 4(2)(c) of the Supreme Court Act so this ground is incompetent and is dismissed: see Opai Kunangel.

Sixth Issue

Whether the Learned Trial Judge fell into error by allowing evidence in relation to possible disciplinary action for insubordination if the "direction" were not complied with?

62.	It was submitted by the Appellant that the Learned Trial Judge placed too much weight on the evidence of Mr. Joseph Lelang and the unsupported conclusion that Mr Lelang and/or Ms Zarriga would face disciplinary charges when there was no evidence or insufficient evidence to make such conclusion particularly in the case of Ms Zarriga who did not give evidence.

63.	It was the Respondent's submission that Ground 3.7 from which this issue arises has no basis and must fail. It was also submitted that Mr Lelang's evidence and the conclusion that the Trial Judge reached in his verdict were not prejudicial against the Appellant for the reason that the Learned Trial Judge was entitled to accept Mr. Lelang's evidence on his assessment of his credibility as a witness. It was also submitted that a court is allowed to accept evidence with regard to what a witness' reaction was or might have been when faced with a set of facts or as in the present case, Mr Lelang's reason for implementing the Appellant's notation on the first proposal. 

64.	At page 310 lines 18 to 38 and page 311 lines 1 to 13 of the Appeal Book, the Learned Trial Judge made these observations:

"62.	Had Ms Zarriga not facilitated the release of the K10 million, I wonder what might have been. I can only guess and speculate. Mr Joseph Lelang alluded to this in his evidence when he was giving his evidence about the accused marking down the first proposal to him when he wrote "Allocate 9.8 million….." that, if he refused a ministerial direction such as that he would be charged with insubordination and his job will be on the line. However, in this case I am firm in my own mind that the words: "Please facilitate the release of K10 million…………" amounts to a direction. I am also firm in my own mind that "Approve K9.8 million………." Was a direction as well to Joseph Lelang.

63.	The accused did not in his note to Ms Zarriga say something like "Please appraise the proposal by Travel Air and advise as to its suitability for government funding". Instead the note is direct to the facilitation of the release of the K10 million.

64.	It seems to me the Senior Officers of the Department appear to be performing their duties to ensure the K10 million was released to Travel Air. They did so with respect to please their "political master," with the hope to gaining in turn favour from him in that Ms Zarriga was an Acting Secretary while Mr Takale Tuna as Acting Deputy Secretary (PIP). With respect I know there is no direct evidence of this but the court is entitled to draw such inferences from all the evidence surrounding the circumstances of the release of the K10 million. The minute by Mr Sent appears to be the appraisal which was directed by Ms Zarriga and Mr Tuna. The appraisal contained lies and was misleading and calculated to legitimize the appraisal process. Ms Zarriga and Mr Tuna may have hoped in return to get substantive appointments. That is in my view a reasonable inference to draw from all the circumstances of the case, if they could pull this one through and they did. However, it was not to be because as it became public information." (Our emphasis)

65.	We remind ourselves that when making its own assessment of the evidence before him or her, a court exercising appellate jurisdiction must pay full regard to the fact that a trial judge has the benefit of seeing and hearing witnesses and drawing relevant inferences from evidence before him or her: Ura Francis Miriva v The State (1981) SC197; Peter Wararu Waranaka.

66.	In the present case, we accept the Respondent's submission that the Learned Trial Judge clearly considered all matters before him and made a reasonable inference as to why there was a release of the K10 million. Ground 3.7 which raises the issue under consideration is therefore dismissed.

Seventh Issue

Whether the Learned Trial Judge fell into error when he refused to grant the Appellant's application for adjournment to enable him to call Ms Zarriga to give evidence?

67.	It was submitted by the Appellant that the Learned Trial Judge denied him his constitutional rights by not allowing him through his counsel an adjournment to call one more witness, namely Ms Zarriga who was unavailable on that day as she was out of the country at the time thereby denying him the fundamental right under the Constitution to call witnesses on his behalf and be accorded a fair trial. In refusing to grant an adjournment for such purpose, the Learned Trial Judge had remarked that that was not his problem: see page 258 lines 20 to 24 of the Appeal Book. In support of that submission, counsel drew the Court's attention to a decision of the National Court in The State v Robin Erick (2006) PGNC 41; N3023. In that case, His Honour Lenalia, J made this observation:

"It is my view that, the decisions in the case of Eiserman v Nanatsi (supra) and that English common law case of Surujpaul v R (supra) do uphold the Constitutional provision for the protection of law as required by s.37 (4) (a) (e) and (f) of that document which requires that a person charged with an offence must be presumed to be innocent until proven guilty according to law. Subsection (4) (a) (e) & (f) are in the following terms:

"(4)	A person charged with an offence – 

(a) 	shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and ...

(e) 	shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and

(f) 	shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution".

Further to the above, s.570(1)(2) of the Criminal Code complements the above Constitutional provision by saying:

"(1) 	A person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined and cross-examined by his lawyer.

(2) 	A person charged with an offence may, by leave of the court, have his defence conducted by another person who is not a lawyer."

68.	It was submitted by the Respondent that Ground 3.8 which raises the issue under consideration has no basis and must fail. Counsel submitted that the Learned Trial Judge properly exercised his discretion under Section 555 of the Criminal Code not to adjourn the trial.

69.	Section 555 of the Criminal Code deals with the question of adjournment of trials after they have commenced. That provision states: 

"(1)	A court before which a trial has commenced may at any time, in its discretion, adjourn the trial.

(2)	A court before which a trial has commenced may at any time, on application by the State Prosecutor or the accused or his lawyer, direct that the trial be continued at a different place, whether or not the place is a place appointed under the National Court Act for sittings of the National Court.

(3)	If a court directs that the trial in which no evidence has been taken be continued at a different place, the trial may be continued before a Judge other than the Judge before whom it commenced." (Our emphasis)

70.	For the present purposes, sub-section (1) is relevant. It is obvious from that provision that a trial judge has a discretion whether or not to adjourn a trial during the course of a trial for whatever reason, apart from the usual intermissions such as lunch or continuation of trial the following day within the time frame allocated for the commencement and completion of a trial. The discretion would have to be exercised on some proper basis. In Ross Bishop v Bishop Bros Engineering Pty Ltd [1988–89] PNGLR 533, the Supreme Court held that when exercising a discretion not to grant an adjournment, it must be exercised so as not to work an injustice on a party: see also OK Tedi Mining Limited v Niugini Insurance Corporation and Ors (1) [1988–1989] PNGLR 355. It went on to say that an adjournment will usually be granted where an accused person has not had sufficient notice of the charge or when he has had insufficient time to prepare his case. It has also been held that an applicant for an adjournment bears the onus of showing why a refusal to adjourn would result in injustice to him or her: OK Tedi Mining Limited. In the present case, the application to adjourn was made primarily because the witness was out of the country. In addressing this issue, it is necessary to visit the opening remarks of defence counsel after the prosecution formally closed its case and the Learned Trial Judge's remarks which are found in the transcript at page 152 lines 32 to 46 and page 153 lines 1 to 7 of the Appeal Book. 

71.	At page 152 lines 32 and 33 of the Appeal Book, the defence counsel informed the Learned Trial Judge that he would call three witnesses in support of the defence case. At page 152 lines 37 to 39 of the Appeal Book, the defence counsel also informed the Learned Trial Judge that the first witness was on his way into the "province" and asked for an adjournment to the next day to commence his evidence. In response, the Learned Trial Judge said that he would not be sitting the whole day the next day because he would be attending a judges' meeting which was being convened to promulgate certain rules relating to prosecutions under the Proceeds of Crimes Act. The Learned Trial Judge went on to say at page 153 lines 2 to 7 of the Appeal Book the following: 

"So you have the weekend. You have a much longer weekend to prepare the defence case from tomorrow and of course Monday is a long – it is Independence Day so we can resume on Tuesday next week. Is that okay with you? That is all right with you and the problem of witnesses being away hopefully this weekend can enable the defence to arrange its witnesses in time for next Tuesday."

72.	The trial was then adjourned on Thursday, the 12th of September 2013 at 3:17 pm and resumed on Tuesday, the 17th September 2013 at 9:46am. The trial continued on Wednesday, the 18th of September 2013 starting at 9:57 am. 

73.	The Appellant did not make any application for an adjournment for the purpose of calling a further witness until after the completion of the evidence of Mr. Tofayel on Thursday, the 19th of September 2013 which was refused by the Learned Trial Judge: see page 258 lines 14 to 23 of the Appeal Book. There was no supporting affidavit or material from the Appellant, but only submissions from the bar table. 

74.	We accept the Respondent's submission that a fair trial was conducted by the Learned Trial Judge because the Appellant's counsel was given sufficient time and opportunity from Thursday, the 12th of September 2013 to have all defence witnesses available and ready to give evidence when called upon. Moreover, it was the responsibility of the Appellant through his counsel to ensure that all defence witnesses he intended calling in support of his defence were in Port Moresby before the trial commenced and appropriate steps available in law taken such as issuing summonses to give evidence to ensure their attendance. There is no evidence that such measure was taken. It is settled law that a lawyer's negligence resulting in failure to take appropriate steps to protect his or her client's interest is not a good excuse: Provincial Government of North Solomons v Pacific Architecture Pty Ltd [1992] PNGLR 145. In any event, the defence called more than three witnesses it had indicated to call in defence counsel's opening remarks. 

75.	We find that the Learned Trial Judge did not fall into error and dismiss Ground 3.8 as a consequence.
 
Eighth Issue

Whether the Learned Trial Judge fell into error when he refused to accept the evidence that the Secretary for the Department was at liberty or had unlimited powers to approve unlimited requisitions for expenditure from those public funds held by the Department?

76.	It was submitted by the Appellant that the Learned Trial Judge fell into error when he failed to give due weight to defence evidence that the final authority in relation to expenditure rested with the Secretary of the Department pursuant to Section 32 of the Public Finances (Management) Act.

77.	The Respondent on the other hand submitted that Ground 3.10 which raises the issue under consideration has no basis and must fail because the matters raised by this ground are based on fact alone which require leave and no leave was sought.

78.	It was submitted in the alternative that if the Court were to reject the first argument and satisfied that the ground was based on mixed fact and law, it was the Respondent's further submission that paragraph 84 (see page 316 lines 8 to 20 of the Appeal Book) of the Learned Trial Judge's verdict must be read contextually with paragraph 83 (see page 316 lines 4 to 6 of the Appeal Book). It was contended that in paragraph 83, the Learned Trial Judge relied on the Audit Report compiled by Mr Kop and he was entitled to accept his evidence about the budget process having been bypassed completely as it was part of his functions to assess the credibility or not of witnesses and give due weight to evidence he considered as credible. 
 
79.	The Learned Trial Judge found that defence witness William Sent was not a credible witness so he did not believe what he said about the Secretary of the Department having unlimited powers to approve expenditure of funds parked under the Development Budget. He believed Mr. Kop's evidence instead. He also believed that every government department or Minister had a monetary ceiling and if funds to be expended went beyond a Minister's ceiling, the NEC was the final authority to consider any such expenditure. Mr. Lelang's evidence that the Acting Secretary and the Appellant had no authority to approve the release of K10 million to Travel Air gives credence to this belief (page 295 lines 28 to 36 and page 296 lines 1 to 4 of the Appeal Book).

80.	We accept the Respondent submission and find that the Learned Trial Judge did not fall into error.

CONCLUSION

81.	For all these reasons, we conclude that in all the circumstances of the case, the Appellant has failed to demonstrate any error in the way the Learned Trial Judge dealt with the evidence in arriving at his verdict so the conviction was safe and satisfactory. We therefore dismiss the appeal and confirm the conviction.
_______________________________________________________
Public Prosecutor: Lawyer for the State
Young & Williams: Lawyers for the Prisoner