SC2700
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA 29 OF 2023

BETWEEN:
JURGEN RUH
Appellant

AND:
BANK OF PAPUA NEW GUINEA
Respondent

WAIGANI: KANGWIA J, ELIAKIM J, CAREY J
16 DECEMBER 2024; 27 FEBRUARY 2025

APPEAL AGAINST CONVICTION - alleged breach of statutory obligations under s 76, 77 & 78 of the Superannuation (General Provisions) Act – whether the appellant as sole shareholder and director properly indicted.

Facts

The Appellant sought to have his conviction quashed and appealed the whole of the decision from the National Court in proceeding styled CR (FC) 189, 190, 191 and 192 of 2021.  This appeal is a result of a statutory prosecution in the National Court under the provisions of the Superannuation (General) Provisions Act 2000 from which the Appellant was charged in relation to four offences.

Held:

(1)	The appeal against conviction is dismissed.
(2)	The Appellant shall pay the Respondent’s costs to be taxed, if not agreed.

Cases cited
 Evertz v State [1979] PNGLR 174
Inakambi Singoromi v John Kalaut [1985] PNGLR 238
Jurgen Ruh [2003] SC2352
John Beng v The State [1977] PNGLR 115
Kamit v Aus PNG Research & Resources Impex Ltd [2007] N3112
Odata Ltd v Ambusa Copra Oil Mill Ltd and NPF Board [2001] N2106
Pok v State [1983] PNGLR SC254
Pinpar Developer Pty Ltd v TL Timbers Pty Ltd [2019] SC1892
PNG Pipes Pty Limited and Vanegopal v Sefa, Globes Pty Ltd and Macasaet [1998] SC592
Salomon v Salomon and Co Ltd [1897] AC 22
Titus Wafi v The State SCRA No. 24 of 2009 [Unreported 2012]
 Zebedee Jabri Kalup v The State [2020] SC2056

Counsel
H. Namani & J. Waka for the appellant
G. Tamade for the respondent

JUDGMENT

1.	BY THE COURT:   This is the unanimous decision of the appeal against conviction only. The Appellant was convicted on three indictable offences of failing to comply with statutory obligations under ss 76, 77 and 78 and one count of knowingly providing false and misleading information under s 33 of the Superannuation (General Provisions) Act 2000 (the Act). The offences under s76, s77 and s78 carry fines not exceeding K100, 000 or imprisonment for a term not exceeding two years pursuant to schedule 4 of the Act. The offence under s 33 carries a fine of K500,000 or imprisonment for a term not exceeding 10 years. 

2.	The facts are not in serious contention. The Appellant is the sole Director and Shareholder of Islands Salvage and Towage Limited (ISTL). The Respondent (Bank) is the regulating authority of the Act and one of the oversight functions is to supervise compliance with statutory obligations imposed by the Act. 

3.	On 31st August 2009 the Bank directed an investigation into a complaint by an employee of ISTL that the company had not paid employee contributions to any Authorized Superannuation Fund (ASF) for more than 51 employees between 2002 and 2007.

4.	At the time of the investigation the Appellant denied employing the required number of employees to be subject to the statutory obligations. Further investigation found that the information provided by the Appellant was false and that the Appellant had made no employer contributions to any ASF. He was thereafter indicted on the four charges and eventually convicted on all four counts.

5.	The Appellant raises 16 interrelated grounds but what is common in all the grounds is the assertion that the trial judge erred in law and in fact to deny him a fair trial when provisions of the Companies Act 1997, and Criminal Code Act Chapter 262 were misapplied to prosecute statutory obligations under the Superannuation (Geneal Provisions) Act 2000. The Respondent argues the contrary and contends that the trial judge did not err in the entire conduct of the proceedings. There are three main issues arising from the competing submissions which are. 

1.	Whether the Appellant was properly indicted according to the Act.

2.	Whether the Appellant was unlawfully convicted as an employer when statutory obligations are imposed on ISTL as the employer and not the Appellant as a shareholder and director pursuant to s 16 of the Companies Act.

3.	Whether the trial judge erred in the overall conduct of the proceeding.

Law on Appeal against Conviction 

6.	Section 23 of the Supreme Court Act 1975 states that the Supreme Court will only allow an appeal if it thinks that: 

a.	The conviction is unsafe or unsatisfactory. 
b.	There was a wrong decision on any question of law. 
c.	There was a material irregularity in the course of the trial. 
d.	And in any case dismiss the appeal

7.	The principle of law on appeal against conviction is well established in the Supreme Court case of John Beng v The State [1977] PNGLR 115 in the following terms:

“On appeal against conviction, 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.”

8.	On appeal against findings of fact, the Appellate Court has a statutory duty to form its own independent opinion as to the proper inferences to be drawn from evidentiary facts. However, the decision of the Trial Judge is to be given proper weight. The appellate Court is not at liberty to disturb the findings of the Trial Judge as to credibility and fact or substitute its own findings of fact unless the Trial Judge has misconceived fundamentally the evidence when consideration is given to the whole of the decision. (See Pok v State [1983] SC254; Evertz v State [1979] PNGLR 174).

9.	In the present appeal the law under s 4 (1) of the Superannuation (General Provisions) Act of 2000 as amended prescribes a mandatory obligation on employers to make employee and employer contributions to any Authorized Superannuation Fund (ASF) if it employs more than 20 employees.
 
10.	A failure to comply with the mandatory obligation to contribute or any other obligation under the Act incurs ruinous liability including imprisonment.

11.	It seems the only exceptions are where a company is insolvent at the time of investigation or has less than 20 employees.

12.	Since the submissions of counsel invite consideration of relevant provisions of the enabling Act, the Constitution, the Companies Act 1997, and the Criminal Code Act Chapter 262 the relevant provisions shall be considered accordingly.

13.	As a preliminary matter the submission on behalf of the Appellant that the investigation by the Bank was unlawful has no basis as the investigating power vested in the Bank under s 81A of the Act came into effect on 18th June 2007 through amendment No 6 of 2007 to the Principal Act. The bank therefore did not exercise its investigative powers in a vacuum.

14.	Another matter not worth further consideration relates to the alleged number of employees employed by ISTL. According to the 4 payroll records under the name of ISTL which were tendered in evidence at the trial show that more than 20 names of employees were paid wages during the alleged period of noncompliance with statutory obligations. It clearly negates the Appellant’s utterances to the Bank that it employed less than 15 employees. The Appellant was properly charged for providing false and misleading information. 

1.	Whether the Appellant was properly indicated according to the Act. 

15.	On this issue, Mr. Namani and ably supported by Mr. Waka for the Appellant submits that the trial judge erred in ignoring the statutory prescribed procedures and conducted proceedings contrary to requirement of the Superannuation (General Provisions) Act 2000. The trial against the Appellant was improperly prosecuted as if it was a criminal proceeding under the Criminal Code Act when the Bank of Papua New Guinea is mandated by the Superannuation (General Provisions) Act 2000 to ensure that all offences related to breaches are clearly defined and appropriately penalized. 

16.	The Appellant was indicted contrary to s 114 (3) of the Superannuation (General Provisions) Act 2000 when it was the Bank who was to present the indictment.  It is also submitted that the private law firm of Corrs Chambers Westgarth Lawyers without the express authority of the Public Prosecutor, undertook the prosecution without any legitimate authority to do so. Compounding these significant errors, the Appellant was never formally arrested or charged yet treated throughout the trial as properly charged and allowed bail. The pattern of procedural irregularities jeopardized the fairness of the trial and the Appellant’s rights, and the conviction should be set aside.
 
17.	For the Respondent, Ms. Tamade submits that the nature of this proceeding was at all times treated as a prosecution of regulatory offences pursuant to powers and authority under ss 33, 76 (1) (2), 77 (1) (4) and 78 (1) (2) of the Superannuation (General Provisions) Act 2000. It was a statutory prosecution and under s 114 (1) (a) of the Act, the Bank as regulator was entitled to bring prosecution for indictable offences under the Act.
 
18.	However, the Appellant was prosecuted in the National Court on indictment presented by a Gazetted State Prosecutor for the Public Prosecutor. The case of Kamit v Aus-PNG Research & Resources Impex Ltd [2007] N3112 is referred to as supporting the Banks authority to prosecute an indictable offence. 

Our Analysis

19.	This issue is no longer of any relevance as there is in our view already a correct determination on that question in the application for leave by Jurgen Ruh [2003] SC2352 which is not the subject of appeal here. In that application the Court said:

“it was incorrect to say that he had not been charged as he had been committed by the District Court for trial in the National Court and the fact that he has never been arrested is inconsequential and not in breach of any mandatory criminal procedure requiring an accused to be arrested before being committed for trial or tried in the National Court”

20.	From this determination, it appears that had the Appellant been wrongfully charged or not charged in the language of the enabling legislation the Court in the application for leave would have granted leave to quash the indictment.
 
21.	Be that as it may, what is of essence is that the offences the Appellant was charged with are indictable offences which carry fines and imprisonment as penalties. In the usual criminal trial process, once a person is charged with an indictable offence it goes through the committal process. After an offender is committed to stand trial through the committal process as was in the present case, the Public Prosecutor is seized of the matter and decides whether to prosecute or refuse to initiate and discontinue prosecution pursuant to s 176 of the Constitution. 

This provision provides.

176. Functions of the Public Prosecutor and the Public Solicitor
 
(1) The functions of the Public Prosecutor are – 

(a) in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament.
 
22.	The Act of Parliament referred to under this provision is the Public Prosecutor (Office and Functions) Act 1977 which prescribes the functions the Public Prosecutor is mandated to perform, and the relevant parts are in these terms:
 
1.	FUNCTIONS, ETC., OF PUBLIC PROSECUTOR
(1)	The Public Prosecutor –
(a)...
(e)... 
(i) to prosecute persons charged with any criminal offence at their trial before the National Court; and

(ii) to appear on behalf of the State in any criminal appeal before the National or Supreme Court; and

(g) shall, in his absolute discretion, give consent or refuse consent, to proceed with the prosecution of any criminal offence where his consent is by law required; and

23.	The ultimate power to prosecute indictable offences whether in criminal matters or private prosecutions rests on the Public Prosecutor by virtue of the Constitutional mandate. Under the Constitutional mandate, the Public Prosecutor can in the exercise of its discretion give consent to any regulatory authority or any other person to prosecute indictable offences whether the consent is required by the enabling legislation or not. It preserves the original power that the Public Prosecutor has, to prosecute indictable offences. 

24.    In the case of Kamit v Aus-PNG Research & Resources Impex Ltd [2007] N3112 the Court affirmed the Constitutional mandate given the Public Prosecutor in these terms. 
 
“Though the prosecution schemes similar in wording under these legislations vested the right to prosecute in the regulating authority for example, the Bank of Papua New Guinea, it did not erode or bypass the fundamental Constitutional right of the Public Prosecutor to prosecute and the Public Prosecutors functions under the Public Prosecutor (Office and Function) Act 1977. ...It is in this mandated power that the public Prosecutor has the discretion to give his consent to proceed with the prosecution of any criminal offence where his consent is required”.
 
25.    Even though there is no specific provision in the Superannuation (General Provisions) Act 2000 for the consent of the Public Prosecutor to be given to prosecute an offence under the Act as was in the Kamit case, the Central Bank nonetheless has authority under s 114 of the Act to prosecute offences by summary prosecution or as an indictable offence as the case may be and present an indictment. 

Section 114 states:

“(1) The Central Bank may –
(a) prosecute any offence by a person under this Act, by summary prosecution or by prosecution as an indictable offence as the case may be; and

(b) commence a civil action against a person for any form of civil relief which is available in respect to the matters constituting the offence.
(2) Any prosecution or action commenced by the Central Bank in relation to an offence committed under this Act shall be heard by the National Court
.
(2)	Notwithstanding section 524 of the Criminal Code Act 1974 following a committal for an offence under this Act, the Central Bank is authorised to present an indictment against the accused and a copy of such indictment shall be served on the public Prosecutor and the Public Prosecutor may withdraw the indictment within 14 days of service of the indictment on him”.

26.  These provisions when read together, empowers the Central Bank to prosecute any offence under this Act by summary prosecution and as an indictable offence. The Central Bank is also empowered to present an indictment but on who the indictment can be presented is unclear. The provision further appears to direct the National Court to hear prosecution commenced by the Central Bank.
 
27.     Under the circumstances referred to, the authority given to the Central Bank under s 114 of the Act appear to be inconsistent with s 177 (1) of the Constitution and conflict with s 4 (c) (e) (i) of the Public Prosecutor (Office and Functions) Act. 

28.    However, the inconsistency or conflict does not arise when provisions of the Constitution are treated as a superior and self executing law. In circumstances where s 114 of the Superannuation (General Provisions) Act 2000 appears to be inconsistent with s 177 (1) or in conflict with s 4 (c) (e) (i) of the Public Prosecutor (Office and Functions) Act the supremacy of the Constitutional law prevails, rendering s 114 invalid and ineffective by operation of s 11 of the Constitution. Section 11 provides:

“11. Constitution, etc., as Supreme Law

(1) This Constitution and the Organic Laws are the Supreme Laws of Papua New Guinea, and, subject to section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit”. 

29. Apart from that provision, the conflict or inconsistency does not exist in circumstances where the authority given to the Central Bank by s 114 is discretionary using the enabling word “may”. 

The converse effect of the authority given is that the Central Bank can also elect not to prosecute or present an indictment. 

30.    By allowing the Central Bank to exercise discretion not to prosecute or present an indictment, it has the effect of avoiding the conflict or inconsistency and preserving the prosecution function bestowed on the Public Prosecutor by s 177 (1) of the Constitution.
 
31.     Secondly, s 114 in mandatory terms directs the Central Bank to serve a copy of the indictment on the Public Prosecutor. When a copy of the indictment is served on the Public Prosecutor it invites the consent of the Public Prosecutor whether to prosecute the charge or withdraw it within 14 days. The mandatory requirement to serve a copy of the indictment on the Public Prosecutor also has the effect of avoiding the conflict and inconsistency and preserving the prosecution function bestowed on the Public Prosecutor by s 117 (1) of the Constitution.
 
32.    The Appellant’s forceful argument in this respect is that the Central Bank should have been allowed to present the indictment against him as allowed by s 114 (3) of the Superannuation (General Provisions) Act 2000. 
 
33.    The authority given the Central Bank by s 114 (3) to present an indictment can be distinguished from the authority to present an indictment the Public Prosecutor has under s 524 and s 525 of the Criminal Code Act. The relevant parts s 524 and s 525 of the provisions provide:
 
“524 PROCEDURE: PRELIMINARY

(1)	No indictment may be presented in the National Court except in accordance with s 525 and 526.
 
(2)	The head of State, acting on advice may appoint lawyers to be State Prosecutors.

(3)	The Public Prosecutor is ex officio a State Prosecutor.

525 PROCEDURE FOR INDICTMENT

(1)	Where a person is committed for trial or sentence the Public Prosecutor, or a State Prosecutor shall consider the evidence in the matter and may -
(a)	reduce into writing in an indictment a charge of any offence that the evidence appears to him to warrant, or
(b)	decline to lay a charge

(2)	An indictment may be presented to the National Court by the Public Prosecutor or any State Prosecutor”.

34.   When the two provisions are read in unison, an indictment can only be presented in the National Court and nowhere else.
 
35.     Secondly, the ultimate power to present an indictment in the National Court is vested in the State Prosecutor. The only other person who has equivalent power to present an indictment in the National Court is the Public Prosecutor in his ex officio status as State Prosecutor.
 
36.  The distinguishing feature therefrom is that the Public Prosecutor is authorised to present an indictment to the National Court while the Central Bank is only authorised by s 114 of the Act to serve a copy of an indictment on the Public Prosecutor. That is all that the Central Bank is required by law to do. The Central Bank has no authority to go beyond the Public Prosecutor to present an indictment. The conflict and inconsistency with Constitutional provisions are also avoided when the Bank is authorised to only present a copy of the indictment on the Public Prosecutor. 
 
37.     It is a misconception by the Appellant to argue that the Central Bank should use the power given under s 114 (3) to present an indictment against him when the power given by this provision does not authorize the Central Bank to present an indictment in the National Court. 
 
38.    Even then, the present case was not one where the Bank presented a copy of the indictment as authorized by s 114 (3) of the Act. Here the Public Prosecutor was seized of the matter after the Appellant was committed to stand trial in the National Court by the District Court and the requirement for the bank to present the indictment did not exist.
 
39.    Had the Bank presented a copy of the indictment on the Public Prosecutor then the process would have changed where the Public Prosecutor would have to exercise his power to either withdraw it or not within 14 days. There was no error in the manner the indictment was presented, and this ground is not sustained.
 
2.	Whether the Appellant was unlawfully convicted as an employer when statutory obligations are imposed on ISTL as the employer and not the appellant as a shareholder and director pursuant to s 16 of the Companies Act. 

40.    On this issue Mr. Namani submits that the Court below erred in law when it found the Appellant as an employer who failed to remit employee contributions to any ASF when there was no provision for lifting of the corporate veil of a solvent entity. It is argued that liability of a company becomes available only upon the lifting of the corporate veil when the company is unable to meet its liabilities.
 
41.    It is further argued that the Appellant is not liable for any breach of statutory obligations by ISTL because of being a shareholder and director when the Act imposes all obligations on ISTL as the employer and s16 of the Companies Act strictly separates a company from its shareholders and directors.
 
42. There is also overwhelming evidence from correspondences, records and payroll documents which clearly show that ISTL was the employer and not the Appellant. The cases of Salomon v Salomon and Co Ltd [1897] AC 22; Pinpar Developer Pty Ltd v TL Timbers Pty Ltd [2019] SC1892 and Odata Ltd v Ambusa Copra Oil Mill Ltd [2001] N2106 are referred to as affirming the law that the legal personality of a company is distinct from its shareholders and directors because of the protection given by the corporate veil.
 
43.    For the Respondent, Ms. Tamade argues the contrary and submits that there was no error on the part of the trial judge in finding the Appellant liable within the definition of the word employer under section 3 of the Superannuation (General Provisions) Act 2000.  Section 1 of the Employment Act 1978 also defines “employer” as a person who employs another person under a contract of service and includes a prospective employer. The definitions in these provisions are wide enough to hold the appellant liable as he is the sole controlling director and shareholder of ISTL. 

44.    It is submitted that the evidence provided by the Respondent on the issue of employer was not challenged by the Appellant at trial and instead sought to rely on the company as separate from him and this ground should be dismissed. 

Our Analysis

45.    It is settled law that all statutory provisions must be given their fair and liberal meaning to give effect to the intent of parliament. (See Inakambi Singoromi v John Kalaut [1985] PNGLR 238 at 241).

It is also settled law that words used by the legislature must be given their literal and ordinary meaning unless a clearly irrational result will be arrived at. (See Internal Revenue Commission v Hamidian Rad [2002] SC692).

46.   In the present case the intent of parliament in passing the Superannuation (General Provisions) Act 2000 is to protect the interest and rights of employees by facilitating an effective and coordinated approach to ensure compliance with statutory obligations and make mandatory contributions to Superannuation Funds by employers. The Central Bank is entrusted with the oversight powers and functions of the Act. 
  
47.    By amendment No 6 of 2007 to the principal Act a new section 81A with the title “Investigation of Employers” was added in the Superannuation (General Provisions) Act and certified on 18th June 2007. This provision gives investigative powers to the Central Bank, which it did not have as a function in the Principal Act.
 
48.   To give proper context to the intent of Parliament in giving investigative powers to the central Bank the relevant parts of s 81A are reproduced as follows: 

“S 81A INVESTIGATION OF EMPLOYERS

(1)	Where it appears desirable to do so in the interest of members or potential members of an ASF, the Central Bank –
(a)	May by instrument in writing appoint one or more competent persons to investigate and report to the Central Bank for the purposes of this Act on-
(i)	The number of employees of an employer’s business or any aspect of the employer’s business relevant to the applicability of this Act to the employer; and
(ii)	The ownership and control of the employer; and
(iii)	Whether or not the employer or any person or entity associated with the employer has committed an offence under this Act; and
(b)	shall give written notice of any such appointment to the employer concerned”.

49.   The provision gives wide power to the Central Bank to investigate an employer. However, the power to investigate is not a mandatory requirement. It applies only when it appears desirable to the Bank that an investigation ought to be conducted. 

50.   A distinguishing feature of the provision is the power to investigate ownership or control of the employer. The other is the power to investigate whether any person or entity associated with the employer has committed an offence under the Act. 

51.   When the distinguishing features of the provision are read in their proper context the intent of parliament becomes obvious that the intent was to hold the owner, controller, and any person or entity associated with the employer liable for any offence purportedly committed by the employer under the Act.
  
52.    A failure to remit employee contributions to any ASF would fall into this category of offences referred to under the provision.
 
53.   Where an investigation finds that a person or entity associated with an employer has failed to remit employee contributions to an ASF that person would be deemed to have committed an offence and liable for failing to comply with statutory obligations. This view will become clearer later when interpretation of employer is considered.
    
54.   The intent of parliament is further manifested in the prescribed penalties under Schedule 4 of the Act which includes imprisonment for offenders.

55.   The intent of parliament to prescribe imprisonment in the penalties is in our view not intended for a company per se as an employer, rather it was intended for individual persons associated with or owning or controlling the company for the obvious reason that a company cannot be imprisoned.

56.   By prescribing that an owner, controller or any person associated with the employer be investigated and to further prescribe imprisonment as a penalty for committing an offence under the Act, the intent of parliament has the effect of removing the corporate veil protection so that individual persons associated with the company in any way could be held liable for failure to comply with statutory obligations in the entire discretion of the Central Bank.
  
57.   This observation means that by operation of law the corporate veil has no effect when it relates to failures by individuals to comply with statutory obligations imposed by the Superannuation (General Provisions) Act 2000. 

58.   There is no other plausible explanation as to why parliament prescribed under s 81A, investigation of owner, controller or any person associated with an employer and under Schedule 4, imprisonment as a penalty for statutory offences created by the enabling legislation.
  
59.    Notwithstanding the lifting of the corporate veil by operation of s 81A of the Act, generally the law allows for lifting of the corporate veil even in situations in which there is no clear statutory authority vesting control in any other entity.
 
60.    A few cases have lifted the corporate veil to hold the controller of the company liable. In the case of Odata v Ambusa Copra Oil Mill and NPF Board [2001] N2106 the Court ordered the lifting of the corporate veil to enable the Plaintiff to sue NPF who was ultimately in control of Ambusa. It was also found in that case that if the circumstances of the case warranted the lifting of the corporate veil, then the Court should not hesitate to so order. 

61.    The circumstances giving rise to the lifting of the corporate veil in the present case are different from the Odata case as the controversy in the present case revolves on the interpretation of s 16 of the Companies Act and s 3 of the Superannuation (General Provisions) Act. These provisions are reproduced to give clarity.
 
 	“16. SEPARATE LEGAL PERSONALITY
A company is a legal entity in its own right separate from its shareholders and continues in existence until it is removed from the register.

3.	INTERPRETATION
"employer" means an entity that employs a person under a contract of service;
"entity" means an individual, a statutory authority, unincorporated partnership or body or a corporation, as the context permits”.

62.    Section 16 of the Companies Act 1997 has been recognized and given effect in Salomon v Salomon and Co Ltd [1897] AC 22; Pinpar Developer Pty Ltd v TL Timbers Pty Ltd [2019] SC1892 and Odata Ltd v Ambusa Copa Oil Mill Ltd [2001] N2106; that a company is a separate entity from its shareholders and directors. 

63.    However, s 16 of the Companies Act 1997 appears to be in conflict with the definition of “employer” under s 3 of the Superannuation (General Provisions) Act 2000.
  
64.    The definition of employer under section 3 states, “employer” means an “entity” that employs a person under a contract of service. Further down under section 3 the definition of “entity” states, entity means an individual, a statutory authority, unincorporated partnership or body or a corporation, as the context permits.

65.   It appears that the named entities are the only entities that can be subject to the statutory obligations imposed by the Act as employers. 
 
66.   What is perplexing though is that the name company identified by s 16 of the Companies Act is not recognized as an entity in the interpretation of “employer” under s 3 of the Superannuation (General Provisions) Act 2000.
 
67.    The nagging question which apparently is the center of controversy in this appeal is where does company as employer fit into the equation when company is not identified, named or recognized as an “entity” in the definition of “employer” under s 3 of the Superannuation (General Provisions) Act?

68.   Our view is that company identifies well in the context of the word “individual” under the definition of “entity” and broad enough to be read interchangeably as an employer with individuals who are subject to investigations namely owner, controller, or any person or entity associated with the employer to be subject to the statutory obligations imposed by the Act. A company by its very nature as a corporate entity can be recognized as a person or individual in its corporate name. 

69.   A company cannot identify well with a statutory authority, unincorporated partnership or body or a corporation, which are the other entities named under section 3 of the Act as employers.
 
70.    Therefore, the interpretation of “employer” under section 3 of the enabling legislation is in our view broad enough to also hold an individual who owns, controls or any person associated with the company or who is in total control of a company liable as, failing to comply with statutory obligations by an employer. 

71.    Under the circumstances where s 16 of the Companies Act conflicts with the interpretation of employer under s 3 of the Superannuation (General Provisions) Act 2000 the provisions of the Superannuation (General Provisions) Act 2000 prevail pursuant to s 5 of the latter Act.  Section 5 states:

“5. APPLICATION TO COMPANIES ACT AND SECURITIES ACT

The requirements of this Act are in addition to and not in derogation of or substitution for the requirements of the Companies Act 1997 and the Securities Act 1997, but in the case of a conflict between a provision of this Act and the provisions of the Companies Act 1997 and the Securities Act 1997 the provision of this Act prevail”.

72.    The prevailing authority created by the cited provision further enhances the liability of owner, controller, person or entity associated with the employer for failing to comply with statutory obligations in the Superannuation (General Provisions) Act 2000 and effectively removes the corporate veil protection.
 
73.     In the present case it appears and correctly so that the Appellant was charged as an offender under the interpretation of individual under s 3 of the Act as owner, controller, and a person or entity associated with ISTL. It was also in the entire discretion of the Central Bank to forgo charging ISTL as an offender under the interpretation of an individual.

74.    It also appears that the trial judge was not properly led in the way s 81A of the Superannuation (General Provisions Act) 2000 was structured leading him to order the lifting of the corporate veil when there was no requirement for the Court to lift the corporate veil as the protection of the corporate veil had been lifted by operation of s 81A. 

75.  Even then the trial judge did not err in lifting the corporate veil in circumstances where evidence offered by the prosecution showed that the Appellant at all material times while being the sole owner and controlling mind of ISTL failed to comply with statutory obligations under the Superannuation (General Provisions) Act 2000. This ground has not been sustained.

3. Whether the Trial Judge Erred in the conduct of the proceeding

76.   On this issue Mr. Namani submits that the trial judge erred by not maintaining judicial impartiality when he did the following:

(i) denied the Appellant’s right to move application to quash the indictment.
(ii) allowed evidence to be tendered even though it was not part of the depositions served on the appellants’ lawyers.
(iii) continuously interjecting the Appellant’s lawyer when making oral submissions.
(iv) disallowing Appellant to call witness to verify sourcing of payroll records from ISTL office.
(v) allowing Respondent’s counsel to prosecute without consent and authority from Public Prosecutor.
(vi) describing the evidence given by the Appellant as rubbish and replicating it with slangs “like blah…blah…blah”.

77.    Based on the foregoing, Mr. Namani submits that the many errors made by the trial judge caused a fundamental miscarriage of justice whereby the Appellant was prosecuted contrary to the intent of the law and the convictions be quashed with an acquittal on all four charges. 
 
78.    For the Respondent, Ms. Tamade submits that there was no error on the part of the trial judge and the grounds relied on are vexatious and futile and must be dismissed. 

79.   The transcripts of the trial show nothing unusual to suggest judicial impartiality rather, a judge controlling and managing the proceeding in the correct discharge of his Honors’ duty. It is submitted that inexperience of lawyers made the Court guide, educate, prod and manage the proceedings.
  
80.     On the question of bias, Ms. Tamade submits that bias is always from a third – party objective view where a reasonable bystander when observing proceedings would think that the trial judge favored one side unfairly as stated in PNG Pipes Pty Limited and Venugopal v Sefa, Globes Pty Ltd and Macasaet [1998] SC592. In this case, the ground of bias is unsubstantiated as it is a narrow subjective view from the Appellant after an unsuccessful outcome in the National Court. 

Our analysis

81.    On this issue what is being sought by the Appellant is that because the judicial impartiality of the trial judge is in question the conviction should be set aside.

82.     While it is a guiding principle in trials that a trial judge should not play the role of lawyers for a party, it does not prevent a trial judge from asking questions or expressing views to direct the trial from being led astray. There are cases on which convictions have been set aside where the trial judge became overindulged in trials. (See Titus Wafi v State SCRA No. 24 of 2009[Unreported 2012]; Zebedee Jabri Kalup v State [2020] SC2056). 

83.     The basic requirement for a fair trial is that a person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial Court pursuant to s 37 (3) of the Constitution. 
 
84.   In the present case having perused the transcripts there appears to be interventions by the trial judge at various points of the trial. However, the interventions are not so intrusive or of a personal nature capable of attracting an apprehension of bias. 

85.    Even though a written decision was not produced by the trial judge the decisions made during the trial on the various issues that surfaced were based on valid and sound reasoning. We are not convinced that the trial Judge was impartial in the conduct of the trial and this ground is without substance.
 
86.    The conclusion is that the appeal against conviction shall be dismissed in its entirety. The Appellant shall bear the costs of and incidental to the appeal to be agreed if not taxed.  

Lawyers for the appellant:  Namani & Associates
Lawyers for the respondent: Corrs Chambers Westgarth