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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCRA NO 37 OF 2025
JACOB YAFAI
Appellant
V
THE STATE
Respondent
WAIGANI: MOGISH J, CANNINGS J, MANUHU J
23 FEBRUARY, 9 MARCH 2026
CRIMINAL LAW – appeals – appeal against conviction: four counts of misappropriation, Criminal Code, s 383A(1)(a), one count of abuse of office, Criminal Code, s 92(1) – elements of offence of misappropriation – whether accused had dishonest intent – elements of offence of abuse of office – whether accused abused authority of his office.
The appellant appealed to the Supreme Court against his conviction by the National Court of four counts of misappropriation under s 383A(1)(a) (misappropriation of property) of the Criminal Code, and one count of abuse of office under s 92(1) of the Criminal Code. He was a deputy secretary in the Department of Finance who facilitated payment of the sums of K14 million, K13.8 million, K6 million and K8 million, a total of K41.8 million, to a law firm for outstanding legal fees over a seven-month period. The National Court found that each payment was unauthorised and unlawful and that despite being directed by the Secretary for Finance to verify the claims before settling them, the appellant failed to verify them and acted dishonestly and was therefore guilty of misappropriation in respect of each of the payments. The National Court also found that the appellant unlawfully facilitated the payment of K41.8 million to the law firm by abusing his authority as a s 32 officer under the Public Finances (Management) Act, which was prejudicial to the lawful rights of the Independent State of Papua New Guinea, and that he was guilty of the offence of abuse of office. The appellant argued before the Supreme Court that, in respect of the convictions for misappropriation, the National Court erred in fact and law by finding that he had been directed to verify the claims when in fact there was no such direction given to him, not engaging in any reasoning as to how it was concluded that the appellant acted dishonestly other than relying on the erroneous finding that the appellant did not follow a direction to verify the claims, and finding contrary to the evidence that the appellant acted dishonestly as there was evidence that the appellant acted as directed, according to what he understood was his duty and no evidence that he stood to gain from facilitating the payments or that he had any association with the recipient of the payments. The appellant argued that, in respect of the conviction for abuse of office, the National Court failed to consider the elements of the offence and failed to engage with the evidence, which revealed that the appellant did not act arbitrarily. The appellant argued that his conviction should be quashed and a verdict of not guilty entered.
Held:
(1) The National Court erred in fact and law by: (a) finding that the appellant had been directed to verify the claims (as the direction to verify the claims was in fact given to another deputy secretary in the Department of Finance), (b) resting the finding as to dishonesty on the erroneous finding that the appellant had been directed to verify the claims, and (c) not considering that there was no evidence that the appellant stood to gain from facilitating the payments or was associated with the recipient of the funds. There was insufficient evidence before the National Court to warrant a finding beyond reasonable doubt that the appellant acted dishonestly, and that finding was made in error. As dishonesty is an essential element of the offence of misappropriation, the appellant ought to have been acquitted of the four counts of misappropriation.
(2) The verdict of guilty of four counts of misappropriation was unsafe and unsatisfactory, there was a substantial miscarriage of justice and the Supreme Court substituted the verdict of the National Court with a verdict of not guilty of those counts.
(3) As to the charge of abuse of office the trial judge adequately described the elements of the offence, which are that the accused: (a) while employed in the Public Service;(b) abused the authority of his office; (c) by doing (or directing to be done) an arbitrary act; and (d) that was prejudicial to the rights of another. The trial judge did not err in finding that all elements were satisfied beyond reasonable doubt as there was ample evidence that the payments facilitated by the appellant were made in the course of his employment as an officer of the Public Service, in abuse of the authority of his office, arbitrarily and unlawfully and prejudicial to the rights of the State.
(4) The verdict of guilty of one count of abuse of office was neither unsafe nor unsatisfactory.
(5) The appeal was allowed in respect of the conviction of four counts of misappropriation and dismissed in respect of the conviction of one count of abuse of office.
Cases cited
Brian Kindi Lawi v The State [1987] PNGLR 183
Havila Kavo v The State [2015] 2 PNGLR 232
James Singo v The State (2002) SC700
Joel Luma v The State (2022) SC2249
John Beng v The State [1977] PNGLR 115
The State v Andrew Ludwig Posai (2004) N2618
The State v Francis Natuwohala Laumadava [1994] PNGLR 291
The State v Francis Potape (2014) N5773
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Graham Yotchi Wyborn (2005) N2847
The State v Joel Luma (2021) N8798
Counsel
I Molloy & E Sasingian for the appellant
H Roalakona for the respondent
1. BY THE COURT: Jacob Yafai was convicted by the National Court, after trial, of four counts of misappropriation and one count of abuse of office and sentenced to 22 years imprisonment. He appeals against his conviction.
2. He was charged with and convicted of four counts of dishonestly applying to use of another person, Paul Paraka, the sums of K14 million (count 1), K13.8 million (count 2), K6 million (count 3) and K8 million (count 4), a total of K41.8 million, the property of the Independent State of Papua New Guinea, contrary to s 383A(1)(a) (misappropriation of property) of the Criminal Code, which states:
A person who dishonestly applies to ... the use of another person ... property belonging to another ... is guilty of the crime of misappropriation of property.
3. He was also charged with and convicted of one count of abuse of office in that he did illegally facilitate the payment of K41.8 million to Paul Paraka in abuse of his authority as a s 32 officer or requisition officer, which was prejudicial to the lawful rights of the Independent State of Papua New Guinea, contrary to s 92(1) (abuse of office) of the Criminal Code, which states:
A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.
4. It is not disputed that the appellant was Deputy Secretary (Operations) in the Department of Finance and that he facilitated payment of the sums of K14 million, K13.8 million, K6 million and K8 million, a total of K41.8 million, to Paul Paraka Lawyers for “outstanding legal fees” over a seven-month period from November 2012 to May 2013.
5. The trial judge found that each payment was unauthorised and unlawful and that despite being directed by the Secretary for Finance to verify the claims before settling them, the appellant failed to verify them and acted dishonestly and was therefore guilty of misappropriation in respect of each of the payments.
6. The trial judge also found that the appellant had unlawfully facilitated the payment of K41.8 million to the law firm by abusing his authority as a s 32 officer under the Public Finances (Management) Act, which was prejudicial to the lawful rights of the Independent State of Papua New Guinea, and that he was guilty of the offence of abuse of office.
GROUNDS OF APPEAL
Four counts of misappropriation
7. The notice of appeal contained ten grounds of appeal regarding conviction of the four counts of misappropriation. Many grounds overlap, and they can be reduced to three. The appellant argues that the trial judge erred in fact and law by:
(a) finding that the appellant had been directed to verify the claims when in fact there was no such direction given to him;
(b) not engaging in any reasoning as to how it was concluded that the appellant acted dishonestly other than relying on the erroneous finding that the appellant did not follow a direction to verify the claims; and
(c) finding contrary to the evidence that the appellant acted dishonestly as there was evidence that the appellant acted as directed, according to what he understood was his duty and there was no evidence that he stood to gain or did gain from facilitating the payments or that he had any association with the recipient of the payments.
One count of abuse of office
8. The notice of appeal contained four grounds of appeal regarding the conviction on one count of abuse of office. The appellant argues that the trial judge erred in fact and law by:
(a) finding him guilty when not all of the elements of the offence were proven beyond reasonable doubt;
(b) not making a definitive finding in respect of each element of the offence;
(c) finding contrary to the evidence that the appellant directed the payment of K41.8 million to Paul Paraka Lawyers;
(d) finding the appellant guilty when the element of prejudice for depleting the Court order Judge vote was never made out.
9. We now consider the grounds of appeal regarding misappropriation.
FINDING THAT THE APPELLANT HAD BEEN DIRECTED TO VERIFY THE CLAIMS
10. The trial judge found that the principal, Paul Paraka, of the law firm, Paul Paraka Lawyers, which was the recipient of the funds the subject of the misappropriation charges, wrote a letter to the then Secretary for Finance, Steven Gibson, dated 20 September 2012, headed “OUTSTANDING LEGAL FEES”. Mr Paraka stated that there was a balance of K36,083,559.65 still outstanding and requested that it be paid. The letter was copied to the then Prime Minister, Hon Peter O’Neill CMG MP, and the then Minister for Finance, Hon James Marape MP.
11. The trial judge found that the letter was received in the Minister for Finance’s office on 4 October 2012 and that the Minister made a handwritten notation on 5 October 2012:
Secretary,
Please peruse, verify and settle.
12. The trial judge found that the Secretary for Finance received a copy of the letter with the Minister’s handwritten notations on the same day, 5 October 2012, and made his own handwritten notation on it, dated 10 October 2012:
Deputy Strategy
Verify, confirm settle
DOJ to provide additional approp [last word not clear].
13. The trial judge found, based on the evidence provided by those who were or still are senior officers of the Department of Justice and Attorney-General, that:
14. The trial judge found that the claim by Paul Paraka Lawyers was for outstanding legal fees. His Honour also found, based on the evidence from the person who was case management manager and brief-outs and payment clerk in the office of Solicitor-General, that in fact there were no outstanding legal fees payable to Paul Paraka Lawyers referable to the four amounts paid to that firm that were the subject of the four charges totalling K41.8 million.
15. The appellant takes issue with the findings and conclusions reached in paragraphs 46 to 52 of the judgment on verdict. The trial judge stated:
46. Going back to the elements of the offence of misappropriation, Mr Yafai was directed to verify the claims by the Secretary Gibson. Mr Yafai failed. His failure to verify the claim amounted to dishonestly processing the payments in my opinion establishes dishonesty. The property belonged to the State.
47. Mr Yafai used his authority as Deputy Secretary in the Department of Finance in the abuse of his office as Deputy Secretary directed the payments of the monies to Paul Paraka, an arbitrary act prejudicial to the interests and rights of the State.
48. Mr Jacob Yafai was instructed and directed by the then Secretary for Finance to pay Paul Paraka for his services rendered to the State and this was to be done after he verified and confirmed the claims. In all the four instances, he did not and therefore his processing of the FF3s and FF4s was unlawful without the verification. The subsequent raising of the cheques for amounts K14,000,000.00, K13,800,000.00, K6,000,000.00 and K8,000,000.00 was therefore unlawful as well.
49. In the end result, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai in the dishonest application of K14,000,000.00, the property of the State of Papua New Guinea, to the use of Paul Paraka. Accordingly, I find him guilty of the first count of misappropriation.
50. Similarly, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai in the dishonest application of K13,800,000.00, the property of the State of Papua New Guinea, to the use of Paul Paraka. Accordingly, I find him guilty of the second count of misappropriation.
51. Again, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai in the dishonest application of K6,000,000.00, the property of the State of Papua New Guinea to the use of Paul Paraka. Accordingly, I find him guilty of the third count of misappropriation.
52. In relation to the fourth count, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai for dishonest application of K8,000,000.00 to the use of Paul Paraka. Accordingly, I find him guilty of count four.
16. We note that integral to the trial judge’s reasoning that the appellant was guilty of each of the four misappropriation charges was the finding of fact that he had been directed by the Secretary for Finance to verify the claims before settling them and that he had not verified the claims. It was on the basis of that finding that the trial judge concluded that the appellant acted dishonestly.
17. The appellant argues that the Secretary’s direction to verify the claims was not addressed to him. The appellant was Deputy Secretary Operations. The direction to verify the claims, given through the Secretary’s handwritten notation of 10 October 2012, was addressed to the Deputy Secretary Strategy.
18. The evidence before the National Court bears out those arguments. We are satisfied that it was a point emphasised by the defence counsel at trial.
19. The Acting Public Prosecutor Ms Roalakona, who appeared before the Supreme Court for hearing this appeal, offered no effective response to the argument that the trial judge erred in fact in finding that the appellant was directed by the Secretary for Finance to verify the claims.
20. We are satisfied that the trial judge erred in fact by finding that the appellant had been directed by the Secretary for Finance to verify the claims of Paul Paraka Lawyers.
NOT ENGAGING IN ANY REASONING AS TO HOW IT WAS CONCLUDED THAT THE APPELLANT ACTED DISHONESTLY
21. As pointed out by the Supreme Court in Havila Kavo v The State [2015] 2 PNGLR 232 it is settled law that to obtain a conviction for misappropriation under s 383A(1) of the Criminal Code the prosecution must prove beyond reasonable doubt all elements of the offence, which are that the accused has:
(i) applied;
(ii) to his own use or the use of another person;
(iii) property;
(iv) belonging to another person;
(v) dishonestly.
22. It seems that at the trial, all but the last element was taken as proven. The contentious issue was whether the appellant acted dishonestly.
23. The element of dishonesty requires a determination of the state of mind of the accused at the time of application of the property. It is a question of fact for the trial judge to determine, based on the facts of the case and according to the ordinary standards of reasonable and honest people (Brian Kindi Lawi v The State [1987] PNGLR 183, Havila Kavo v The State [2015] 2 PNGLR 232).
24. A subjective test must be applied: it must be proven beyond reasonable doubt that the accused in fact knew that he was acting dishonestly. However, in applying that test, an objective standard can be taken into account: it might reasonably be inferred that the accused must in fact have known that he was acting dishonestly (James Singo v The State (2002) SC700, The State v Gabriel Ramoi [1993] PNGLR 390, The State v Francis Natuwohala Laumadava [1994] PNGLR 291, The State v Andrew Ludwig Posai (2004) N2618, The State v Graham Yotchi Wyborn (2005) N2847, The State v Francis Potape (2014) N5773).
25. The trial judge’s finding that the appellant acted dishonestly is contained in paragraph 46 of the judgment on verdict:
Mr Yafai was directed to verify the claims by the Secretary Gibson. Mr Yafai failed. His failure to verify the claim amounted to dishonestly processing the payments in my opinion establishes dishonesty.
26. The trial judge’s reasoning can be summarised in these terms:
27. We are persuaded by the submissions of Mr Molloy, for the appellant, that that process of reasoning is, with respect, flawed. First, it is based on the error of fact that the appellant was directed by the Secretary to verify the claims and that he failed to comply with the direction. Secondly, it does not necessarily follow – even if the appellant had been directed to verify the claims and failed to follow the direction – from a failure to follow a direction, that a person has acted dishonestly. Negligently, recklessly, with disregard for established procedures, imprudently, stupidly, arbitrarily would appear to be more apt descriptions of what happened in this case.
28. We consider that the learned trial judge erred in fact and law by not engaging in an adequate process of reasoning in drawing the conclusion that the appellant acted dishonestly. In particular, his Honour did not adequately address the question of the state of mind of the appellant at the times that he facilitated the payments to Paul Paraka Lawyers.
FINDING CONTRARY TO THE EVIDENCE THAT THE APPELLANT ACTED DISHONESTLY
29. The appellant gave no evidence at the trial. However, he had explained to the police during the investigation why he facilitated the payments: he felt that he had been directed to do so by the Secretary for Finance and that there was a political direction from the Minister for Finance to settle the bills. His record of interview containing this explanation was admitted in evidence.
30. There was significantly no evidence that the appellant stood to gain anything from facilitating the payments or was associated with the recipient of the funds.
31. We consider, with respect, that in these circumstances, there was insufficient evidence before the National Court to warrant a finding beyond reasonable doubt that the appellant acted dishonestly. That finding was made in error.
CONCLUSION AS TO FOUR COUNTS OF MISAPPROPRIATION
32. We uphold the grounds of appeal. The finding that the appellant acted dishonestly was based on a finding of fact that the appellant had been directed by the Secretary for Finance to verify the claims before settling them. There was in fact no such direction given to the appellant. If it were a fact that the appellant had been directed to verify the claims and failed to verify, dishonesty on the part of the appellant would not be the only reasonable inference to draw from those facts. The Court had to be persuaded beyond reasonable doubt that the appellant acted dishonestly. The evidence before the National Court was insufficient to prove dishonesty.
33. As dishonesty is an essential element of the offence of misappropriation, the appellant ought to have been acquitted of the four counts of misappropriation.
34. To succeed on an appeal against conviction an appellant must by virtue of s 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115).
35. We are satisfied that the verdict of guilty of four counts of misappropriation was unsafe and unsatisfactory and that there was a substantial miscarriage of justice. 36. We will substitute the verdict of the National Court with a verdict of not guilty of those counts.
37. We next consider the grounds of appeal regarding the guilty verdict on the single count of abuse of office.
NOT ALL OF THE ELEMENTS OF THE OFFENCE OF ABUSE OF OFFICE WERE PROVEN BEYOND REASONABLE DOUBT
38. The elements of the offence of abuse of office under s 92(1) of the Criminal Code were affirmed by the Supreme Court in Joel Luma v The State (2022) SC2249 as being that the accused:
(i) while employed in the Public Service;
(ii) abused the authority of his office;
(iii) by doing (or directing to be done) an arbitrary act; and
(iv) prejudicial to the rights of another.
39. The trial judge properly set out those elements at paragraph 13 of the judgment on verdict.
40. As to element (i), the appellant was employed in the Public Service.
41. As to element (ii), it was proven beyond reasonable doubt that that the payments made to Paul Paraka Lawyers were unauthorised, unverified and not vetted by the appropriate authority (the Office of Solicitor-General). We take into account the considerations set out by Berrigan J in the National Court in The State v Joel Luma (2021) N8798 (endorsed by the Supreme Court in Joel Luma v The State (2022) SC2249) as being relevant to determination of the abuse of authority element:
42. In the present case there was in our view ample evidence that the appellant:
43. It was proven that the appellant abused the authority of his office by facilitating the payments.
44. As to element (iii), it was proven that the appellant acted arbitrarily as there was no good reason to make the payments. The appellant’s claim in his record of interview that he was only acting in accordance with directions from the Minister for Finance and the Secretary for Finance is not borne out by the evidence. There were no such directions. The appellant conveniently regarded statements of the Minister and the Secretary as directions, but the statements cannot be properly so regarded. Even if they were regarded as directions, the appellant’s actions were still to be regarded as arbitrary due to the flagrant breach of proper procedures involved in facilitating the payments.
45. As to element (iv), it was proven that the arbitrary actions of the appellant were prejudicial to another person, the Independent State of Papua New Guinea, in that K41.8 million of public money was paid unnecessarily and unlawfully to a law firm that had no proven entitlement to that money.
46. We reject the argument that not all elements of the offence of abuse of office were proven beyond reasonable doubt.
NOT MAKING A DEFINITIVE FINDING IN RESPECT OF EACH ELEMENT OF THE OFFENCE
47. The trial judge made findings regarding the elements of the offence of abuse of office at paragraphs 47 and 52 to 55 of the judgment on verdict:
47. Mr Yafai used his authority as Deputy Secretary in the Department of Finance in the abuse of his office as Deputy Secretary directed the payments of the monies to Paul Paraka, an arbitrary act of prejudicial to the interests and rights of the State. ...
53. In relation to the fifth count, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai for unlawfully facilitating the payment of K41,800,000 to Paul Paraka by abusing his authority as a Section 32 Officer under the Public Finance Management Act which was prejudiced to the lawful rights of the Independent State of Papua New Guinea contrary to s. 9 (2) (1) of the Criminal Code. Accordingly, I find him guilty of the charge under this count.
54. The outcome of the case depended on whether Mr Jacob Yafai verified the claims submitted by Paul Paraka. The amount claimed by Paul Paraka were huge amounts and needed to be carefully and properly verified. Mr Yafai failed and cost the people of this country dearly to the tune of K41,800,000.00.
55. His neglect to verify the claims to have the payments processed using his position as Deputy Secretary, Operation. Thus, using the authority of his position as Acting Secretary and Deputy Secretary Operations Department of Finance he had the cheques processed. This amounted to abusing his authority to have the cheques processed in favour of Paul Paraka to the detriment of the Independent State of Papua New Guinea.
48. Those findings are a sufficient statement of satisfaction beyond reasonable doubt on the part of the trial judge that each of the elements of the offence was proven. There was no error of law in the manner contended for by the appellant.
FINDING THAT THE APPELLANT DIRECTED THE PAYMENT OF K41.8 MILLION TO PAUL PARAKA LAWYERS
49. The appellant argues that the trial judge erred in fact and law by finding that the appellant directed the payment of K41.8 million to Paul Paraka Lawyers, as he gave no such direction.
50. This argument is apparently based on a passage in paragraph 47 of the judgment on verdict where the trial judge stated:
Mr Yafai used his authority as Deputy Secretary in the Department of Finance in the abuse of his office as Deputy Secretary directed the payments of the monies to Paul Paraka ...
51. The words “directed the payments of the monies to Paul Paraka” have been taken out of context. ‘Facilitated the payments’ or ‘approved the payments’ may have been, with the benefit of hindsight, a better choice of words. However, we do not discern that his Honour was finding as a fact that it was the appellant who directed that the payments be made.
52. There was no error of fact or law in the manner contended for by the appellant.
THE ELEMENT OF PREJUDICE FOR DEPLETING THE “COURT ORDER JUDGE VOTE” WAS NEVER MADE OUT
53. This argument was poorly articulated in ground of appeal No 14 and was not pressed in written or oral submissions. We are satisfied that the trial judge adequately addressed element (iv) of the offence under s 92(1) of the Criminal Code and made no error of fact or law in the manner contended for.
CONCLUSION AS TO THE OFFENCE OF ABUSE OF OFFICE
54. All grounds of appeal are dismissed. The verdict of guilty of one count of abuse of office was neither unsafe nor unsatisfactory and involved no miscarriage of justice.
SUMMING UP
55. The appeal will be allowed in respect of the conviction of four counts of misappropriation and dismissed in respect of the conviction of one count of abuse of office. This will have a bearing on the appropriate sentence for the offender. We note that leave to appeal against sentence has been granted and a separate appeal against sentence has been filed. The appeal has not been heard, pending the determination of the appeal against conviction. We suggest that the appeal against sentence be heard expeditiously. In the meantime, we will order that the appellant remain in custody.
ORDER
(1) The appeal against conviction of four counts of misappropriation is allowed.
(2) The conviction of four counts of misappropriation is quashed and a verdict of not guilty is entered in substitution for the verdict of guilty entered by the National Court.
(3) The appeal against conviction of one count of abuse of office is dismissed.
(4) The verdict of guilty of one count of abuse of office entered by the National Court is affirmed.
(5) The appellant shall remain in custody until further order of the Court.
__________________________________________________________________
Lawyers for the appellant: Sasingian Lawyers
Lawyer for the respondent: Public Prosecutor
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