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State v Tongayu [2021] PGNC 69; N8810 (7 April 2021)

N8810


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) NO. 293 OF 2019


THE STATE


V


ALEX TONGAYU


Waigani: Berrigan J
2020: 6th, 7th, 8th & 16th October and
2021: 7th April


CRIMINAL LAW – Forgery – Elements of offence – Circumstantial Case – Guilty Verdict


The accused in his capacity as Acting Chairman of the Securities Commission and Registrar of Companies worked with Hon. Richard Maru, the Minister for Trade Commerce and Industry, for about five years. The accused had access to the Minister’s signature during that period. On 20 October 2016 Minister Maru revoked the accused’s position as Acting Chairman of the Securities Commission following his dissatisfaction with the accused’s response to his request for information and advice regarding the ownership of Koitaki Plantation Limited. On 9 November 2016 Minister Maru wrote to the accused advising that he had referred the matter to police. On 18 November 2016 the accused wrote to the Minister advising that he had commenced proceedings in the National Court challenging the revocation of his appointment as Acting Chairman of the Securities Commission. Further, that he had referred Mr Maru to the police for extortion, black mail and official corruption, and to the Ombudsman Commission, and would be seeking damages in defamation. On or about 7 March 2017 Minister Maru revoked the accused’s position as Registrar of Companies pursuant to an NEC decision. At some stage thereafter the accused also commenced proceedings against Minister Maru in respect of that decision. The accused retained his substantive position as Director, Business Registration at the IPA.


On 7 June 2017 the accused provided two instruments of appointment to Mark Timea, Scanning Officer, in a sealed envelope, in the presence of James Joshua, Senior Surveillance Officer, and Andy Ambulu, Lawyer, in the car park of the IPA. The accused told Mr Timea that the envelope contained instruments appointing him to the position of Chairman of the Securities Commission and Registrar of Companies. He told Mr Timea to take the documents to the Government Printing Office (GPO) for urgent publication, and that there was K500 cash in the envelope for that purpose. The three men drove to the GPO and submitted the instruments of appointment to the GPO for urgent publication. The GPO did not accept cash. Mr Joshua paid the publication fees using his own card and took the cash provided by the accused as reimbursement.


The instruments lodged with the IPO were purportedly signed by Mr Maru in his capacity as Minister. The instruments did not contain original signatures in ink but identical signatures inserted into the documents by electronic means. The instruments of appointment were neither made nor authorised by Minister Maru. The Minister was out of town, campaigning in Wewak in the lead up to the National Elections at the time. The instruments were not prepared by the Office of Legislative Counsel on behalf of the Minister’s office in the normal course. The Managing Director of the IPA was not informed of the appointments, or asked to facilitate them in the normal course. Despite the fact that the Minister had previously removed the accused from both positions, and the poor state of the relationship, the ongoing court proceedings, and the serious complaints made to police on both sides, the accused did not consult with Minister Maru prior to publishing the documents. Nor did the accused seek to have the instruments published in the normal course through the Managing Director of the IPA. The accused did not seek reimbursement of the publication fees from the IPA.


The instruments were published in Gazette No. 441. A week later Minister Maru’s First Secretary wrote to the First Legislative Counsel seeking copies of the instruments underpinning G441. First Legislative Counsel advised the following day that he did not hold any. On 19 July 2017, following his return to Port Moresby, Mr Maru revoked the accused’s appointment as Chairman of the Securities Commission. On 26 July 2017 a public notice from Minister Maru appeared in the Post Courier refuting claims that he had reappointed the accused to either position and stating that the matter had been referred to police.


Held:


(1) To establish the offence of forgery pursuant to s 462(1), the State must prove beyond reasonable doubt that the accused:
  1. Made a false document or writing or seal;
  2. Knowing it to be false and with intent that it may in any way be used or acted on as genuine;
  1. To the prejudice of a person OR with the intention that a person, in the belief that it is genuine, be induced to do or refrain from doing any act.
(2) The combination of circumstances leads to the inevitable conclusion beyond reasonable doubt that the accused made the false documents, knowing them to be false, and with the intent that they may be used or acted on as genuine, and with the intention that a person, in the belief that they are genuine, would be induced to do or refrain from doing any act, in particular that a person at the GPO would be induced to publish the false instruments in the National Gazette. The State’s evidence excludes beyond reasonable doubt any other rational inference.

Cases Cited:
Papua New Guinea Cases


Balbal v The State (2007) SC860
Ikalom v State (2019) SC1888
Paulus Pawa v. The State [1981] PNGLR 498
R v Hobart Magalu [1974] PNGLR 188
State v Epei (2019) N7845
The State v Baine [1990] PNGLR 1
The State v Felix Kange (2020) N8488
The State v Joan Kissip (2020) N8184
The State v Raphael Kuandande [1994] PNGLR 512
Yagari v The State (2018) SC1691


Overseas Cases


R v Hall [1986] 1 Qd R 462
Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308


Legislation and other materials cited:


Ss 459, 460, 462 of the Criminal Code (Ch. 262) (the Criminal Code)


Counsel


Mr C. Sambua and Ms C. Langtry, for the State
Mr E. Sasingian, for the Accused


DECISION ON VERDICT


7th April, 2021


  1. BY THE COURT: The accused was charged with two counts of forgery, contrary to s 462(1) of the Criminal Code (Ch. 262) (the Criminal Code) such that between 1 May and 7 June 2017 he:

Count 1: forged a document purporting to be the Revocation of Acting Appointment and Appointment of Registrar of Companies pursuant to Section 394(2)(1)(b) of the Companies Act 1997.


Count 2: forged a document purporting to be the Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea pursuant to Section 4(4) of the Securities Act 1997 (repealed).


  1. The State alleged on arraignment that the accused’s appointment as Chairman of the Securities Commission was revoked in National Gazette G788 of 20 October 2016 by the complainant, Honourable Richard Maru, then Minister for the Department of Commerce, Trade and Industry. The accused’s appointment as Registrar of Companies was also subsequently revoked by the complainant in the National Gazette.
  2. The State further alleged that between 1 May 2017 and 7 June 2017 the accused forged, or caused the forgery of two documents which restored him to his former positions. The documents were appointment instruments purporting to be:

(a) the Revocation of Acting Appointment and Appointment of Registrar of Companies pursuant to Section 394 (2) (1) (b) of the Companies Act 1997; and


(b) the Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea pursuant to Section 4 (4) of the Securities Act 1997 (repealed).


  1. The State says that the two documents were forged by adding to each document a marking purported to be the signature of the complainant. The accused then gave both documents to officers from the Investment Promotion Authority who took them to the Government Printing Office for publication. As a result, National Gazette number G441 was published which gave legal effect to the accused’s appointment as Registrar of Companies and Chairman of the Securities Commission of Papua New Guinea.
  2. The State alleges that when the accused added or caused the addition of the marking purporting to be the signature of the complainant to each of the instruments, he contravened section 462 (1) of the Criminal Code Act.

STATE’S CASE


  1. The State called 11 witnesses through whom 19 documents were tendered.
  2. At the relevant time Richard Maru was the Minister for Trade, Commerce and Industry and was responsible for the Investment Promotion Authority (IPA). The accused was the Acting Chairman of the Securities Commission of PNG and the Registrar of Companies at the IPA.
  3. Mr Maru graduated from the University of Technology in 1983, joined Shell PNG Ltd, as a Management Cadet, and within 12 years rose to the position of General Manager for the Shell operations in Solomon Islands. He was then offered a scholarship by the European Union to study in the UK which he took up in 1999. He completed his Master’s Degree in the UK before coming back and joining Water PNG. He resigned in 2002 and stood for elections. He lost and was appointed the Managing Director of the National Development Bank, a position he held for eight years. He resigned to run for the Yangoru-Saussia seat, which he has won twice. In his first term he was appointed the Minister for Commerce, Trade & Industry. In his second term, until 16 months ago, he was the Minister for National Planning.
  4. In October 2016 he revoked the accused’s position as the Acting Chairman of the Securities Commission. He appointed Benny Popatai as the Acting Chairman. At the time he did not enjoy a good working relationship with the accused because he was of the view that a number of transactions that the accused wanted to facilitate amounted to fraud and were not in the interests of the State. In particular, the accused was not providing certain information he had requested about the ownership of Koitaki Plantation in Sogeri. He never received the information.
  5. In March 2017 Mr Maru also revoked the accused’s appointment as Registrar of Companies.
  6. Mr Maru went to Wewak on the campaign trail prior to the 2017 elections. Whilst there he heard about an instrument that had been gazetted purportedly containing his signature appointing the accused to the position of Chairman of the Securities Commission. He never went to the Legislative Council to revoke Mr Popatai’s appointment. He did not know anything about it. He was shocked. He immediately flew back to Port Moresby and revoked the appointment. He made a new appointment and filed an official complaint that his signature had been forged. He checked with First Legislative Counsel, Johnny Bogambari, who said that he knew nothing about the instrument. Ministers always work through the First Legislative Counsel.
  7. He was shown copies of the appointment instruments at the Investment Promotion Authority (IPA). He looked at the signature and compared it to his. It looked very similar but he knew for a fact that he never appointed the accused to either position. He was not in Port Moresby at the time. He was on election duties outside of Port Moresby. Someone has forged his signature. He did make enquiries with the IPA after he found out about the appointment and he is aware that management did its own investigation but it was for them to come and produce evidence to the court. He never intended the accused to hold those positions again. He first saw the documents a few days before he revoked the appointments. He had to correct the matter straight away.
  8. He did not make or authorise Exhibit P1, Revocation of Acting Appointment and Appointment of Registrar of Companies, dated 25 May 2017. He did not make or authorise Exhibit P2, Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea, dated 25 May 2017. The signatures were very similar to his but he never signed the instruments.
  9. Upon being shown a copy, Mr Maru recalled that he signed a public notice that was subsequently put in the paper. Exhibit P3, is a copy of the public notice dated 6 June 2017, and signed by Mr Maru as Minister. P4 is a copy of the public notice as it appeared in the Post-Courier on Wednesday 26 July 2017.
  10. Under cross-examination, Mr Maru was aware that the accused brought legal proceedings, OSJR 777/16, against him following the revocation of his appointment in 2016. He was not aware of the court order quashing his decision to revoke the accused’s appointment as Acting Chairman of the Securities Commission. The order, Exhibit D20, was made in April 2018, when he was no longer Minister. If he had been Minister he would have appealed the decision.
  11. In response to the suggestion that the instruments were made by him for the purpose of framing the accused for forgery so as to have the accused imprisoned he said that was “the biggest lie I have ever heard”. The suggestion was a “serious insult”.
  12. Mr Maru was shown a series of documents and cross-examined about them.
  13. On 14 October 2016 Mr Maru wrote a letter to the accused as the Registrar of Companies, IPA, under the subject “Suspicious Land Dealings by the Companies Officer”, expressing his total disappointment in the way the accused’s office had updated shareholder records at the IPA without any basis, Exhibit D2. He directed the accused to urgently provide a brief and an NEC Submission on transferring the land to the State (Kumul Consolidated Limited) in return for millions owed to the State for cattle transferred to Koitaki Plantation. The State could either sell the land to recover the debt from Koitaki Plantation or develop Koitaki Plantation with other potential investors. He also sought advice as to how the State could acquire ownership of the Baiyer River Land by way of a transfer by the accused as Registrar for the purpose of a major agricultural development by the State.
  14. Mr Maru denied that he was interfering in private institutions. He explained that he had become aware that there had been changes in the ownership of Koitaki Plantation and he wanted to know who owned the plantation. As Minister he was entitled to know that. There had been complaints to his office about fraud by the accused and he was doing his duty as Minister. Koitaki Plantation owed K10m for cattle and he wanted to know who the owner was and how the State would recover its losses. He was protecting the State’s interest.
  15. He did not recall and denied instructing the accused to deregister Koitaki Plantation Limited (KPL). He was not aware of a complaint made by the accused to the Prime Minister in October 2016.
  16. On 28 August 2016 he wrote to Ivan Pomaleu, Managing Director, IPA, expressing disappointment that despite the passage of two weeks he had not been provided with the information requested from the accused, Exhibit D3. “Why is it so difficult for the Registrar of Companies to provide the information when his office continues to allow the change of ownership in IPA records. What is the legal basis of what I consider to be very suspicious ownership changes in the IPA records. The so called owners are in a rush to do a “fire sale” of the Koitaki Plantations”.
  17. He was not interfering. As the Minister he wanted to know how the owners had acquired the plantation. He wanted to know that the owners actually paid for it before it was sold, as monies were owed to the State. There were complaints it had been transferred by fraud. One of the reasons he had to replace the accused was so that a new Chairman could look at the transaction and why a fire sale was to take place.
  18. Mr Maru recalled receiving two undated briefs from the accused, as Registrar of Companies, in relation to Koitaki Plantation, Exhibits D4 and D5, on the shareholding structure of Koitaki Plantations Limited (KPL), and the conveyancing process under the Companies Act, respectively. He disagreed that the briefs responded to his requests. He asked for the legal basis of the sale. He wanted to see a contract of sale. Anyone could alter the records. He was never provided with the information requested.
  19. He revoked the accused’s positions as Chairman of the Securities Commission on 20 October 2016 as shown in the gazettal notice, G788, Exhibit D6.
  20. On 20 October 2016 he wrote to Clarence Hoot, the Acting Managing Director, IPA, advising that he had appointed Benny Popatai to the position of Acting Chairman of the Securities Commission: Exhibit D7.
  21. Mr Maru recalled receiving a letter from NKA Chartered Accountants dated 25 October 2016, Exhibit D8, advisors for and on behalf of Koitaki Plantations Limited, setting out the history of the acquisition by the new owner, Ted Diro, the Chairman of Directors for Koitaki Plantation, advising that any dealings by the previous owners were normal business transactions and appropriately registered with the Registrar of Companies. Forms and financials not submitted by the previous accountants had since been submitted. Mr Maru maintained that the letter did not answer his questions as to the contract of sale, and did not explain why the IPA records has been changed. There was no evidence as to how the new owner had acquired the property and was now about to sell it, whilst the State was owed a large amount of money.
  22. Mr Maru agreed that the accused worked with him to draft three pieces of legislation which were passed in 2015, the Capital Markets Act, the new Securities Commission Act, and the Central Depository Act.
  23. On 9 November 2016 Mr Maru wrote to the accused, Exhibit D9, stating his disbelief that the accused would write to him threatening to leak confidential documents regarding Koitaki Plantation and the revocation of his appointment as Acting Chairman of the Securities Commission. He put the accused on notice that he was acting in the interests of the State, was referring the matter to police and asked why it was so hard for the accused or the owners of Koitaki Plantation to produce the proof of purchase and legal ownership which he had requested. As to the accused’s threat to refer Mr Maru to the Ombudsman Commission for interfering into regulatory matters he had nothing to hide. He was not threatening to use the police to achieve his own agenda, he was acting in his capacity as Minister in the interest of the State.
  24. On 18 November 2016 the accused wrote to Mr Maru advising him that he had commenced proceedings in the National Court to review his decision to revoke his appointment as Acting Chairman of the Securities Commission, Exhibit D10.
  25. He was aware that the accused was reappointed to the position of Acting Chairman of the Securities Commission in 2018 but in his view it was made without power under the new act. He was not aware of the outcome of the court case and in any event it was irrelevant. The complaint was for the forging of his signature which needed to be investigated. He was not interfering. He wrote to Minister Mori because he had a duty as a Minister to inform him that the accused had been accused of a crime and that he did not have the power to appoint under the new act.
  26. Normally instruments of appointment are held by First Legislative Counsel. They told him they did not have copies of P1 and P2. He obtained copies from the management of the IPA not long after the instrument was gazetted.
  27. The accused wrote a second letter to Mr Maru on 18 November 2016 informing him that he intended to refer him to the police, the Ombudsman Commission and commence defamation proceedings, Exhibit D11. Mr Maru maintains that the letter was not focussed on the real issue, that there was no evidence of a contract of sale or money paid by the new purchaser of Koitaki Plantation.
  28. On 20 December 2016, Leon Buskens, the Chairman of the IPA Board, wrote to Mr Maru advising that the Board had deliberated on the sale of the Koitaki Plantation and found the documentation to be in order, Exhibit D12. He did not agree with the Board as the information had still not been provided.
  29. Mr Maru attended the NEC Meeting on 8 February 2017 at which NEC approved the revocation of the accused as Registrar of Companies, Exhibit P5. He believed it was at that time that he revoked the appointment of the accused as Registrar of Companies, based on the NEC decision.
  30. He confirmed that all instruments executed by him as Minister are prepared by the Office of the Legislative Counsel and taken by it to the Government Printing Office (GPO) for publication.
  31. He denied absolutely that he conspired with anyone. He was not in Port Moresby at the time. He did not know anything about Gazettal G441, Exhibit D13, which published the instruments P1 and P2, until he was advised whilst campaigning.
  32. Gazette G441 is dated 7 June 2017. The public notice, P3, is dated 6 June 2017 and predates the gazette. Mr Maru denied absolutely that he was involved in the production of the reappointment of the accused. He was in Wewak at the time and he replaced him immediately upon becoming aware. D14 is the Gazettal Notice dated 19 July 2017 revoking the appointment of Alex Tongayu.
  33. It was suggested that because of their strained relationship he did not want the accused to ever occupy the position of Chairman of the Securities Commission again and because of their strained relationship he created the instrument of appointment and later denied ever signing it. He said that was an absolute lie. All instruments are prepared by the First Legislative Counsel and taken to the GPO.
  34. It was put to him that he helped in the fabrication, creation and production of the instruments of appointment. That was a lie. He was never involved with the gazette or the appointment. He replaced the accused straight away after he found out and laid a police complaint. He was in Wewak for the elections and the process is to go first to the First Legislative Council which he had not done. He replaced the accused twice, first with Benny Popotai and then with Chris Hnanguie.
  35. As to the suggestion that he was instrumental and conspired with others for the accused to pick up the instruments, he said that was an absolute lie. He did not conspire with anyone. He was in Wewak doing elections. The accused put together a fake instrument using his signature.
  36. In re-examination he said that he had never reappointed the accused or signed any instruments so as to reappointment him. He was the last person he’d have in mind.
  37. Johnny Bogambari was First Legislative Counsel in June 2017 and responsible under the Legislative Drafting Services Act for drafting legislation and statutory instruments for execution by the Head of State and Ministers. Instructions normally came to his office from NEC or, where the Act provided for it, from Ministers directly. He has no knowledge of the instruments that gave rise to Gazette Notice G441, and had never seen Exhibits P1 and P2 before.
  38. In response to the letter from the Minister’s First Secretary, Chris Ningis, on 14 June 2017, Exhibit P7, he wrote a letter dated 15 June 2017 advising that he had no record of an instrument purporting to revoke or appoint the persons named in G441 and no records of any correspondence pertaining thereto. Exhibit P6 is a copy of his letter. It bears his initial. The original would have his full signature.
  39. Under cross-examination he said that instruments are normally delivered by the Office of Legislative Counsel to the respective Ministers who arrange for the instruments to be printed but some Ministers require assistance. Instruments published by his office would normally have an instrument number in the right -hand corner and his initials. G441 does not have either of those things so it did not come from his office. He was shown a letter he wrote to Mathew Damaru on 7 February 2019. Like the letter of 15 June 2017 it did not have a letterhead because copies are kept without letterhead. Exhibit D15 is a copy of a document in the same terms as Exhibit P1, which was attached to the letter from the First Secretary.
  40. At the relevant time James Joshua was a Senior Surveillance Officer with the IPA attached to the Securities Commission Division, which was under the charge of the accused until his position was revoked. Mr Joshua was terminated from his position on 29 October 2017 following an investigation by the IPA in relation to his role in the reappointment of the accused.
  41. Between 8 and 10 am on the morning of 7 June 2017 Mr Joshua was in the IPA car park about to go and get breakfast when the accused drove in. The accused gave Mark Timea, Scanning Officer with the IPA, an envelope and told him to take the envelope to the GPO. At the time the accused was the Director of the IPA. Mr Joshua drove Mr Timea to the GPO in his own vehicle. Another officer, Andy Ambulu, accompanied them. Once there Mr Timea went inside whilst he and Mr Ambulu waited outside. Mr Timea came out and told them that the GPO did not accept cash and asked if either could use their card to pay. Mr Joshua went in and used his card to pay for the gazettal. It was K300 or more, he can’t recall. Mr Timea gave him the cash, K500 as reimbursement, which he told him was in the envelope. Mr Joshua did not know what the gazettal was for.
  42. He identified the show cause notice issued to him by Clarence Hoot, the Acting Managing Director, of the IPA, on 20 October 2017, regarding administrative charges, Exhibit P8 and P9, in relation to his involvement in the suspected fraudulently obtaining of G441 and related instruments. He identified his response dated 25 October 2017, which was admitted without objection as Exhibit P10.
  43. Under cross-examination he said it was normal for him to assist driving Mr Timea down to the GPO. The person who served him when he swiped his card at the GPO was male. He had no idea how the instrument was made. He had a good relationship with Clarence Hoot. Mr Hoot told them it would be okay but after they gave their statements to police he terminated them.
  44. Andy Ambulu was Legal Officer at the Securities Commission at the time. According to his statement, Exhibit P14, which was tendered by consent, he received two show cause notices and charges, Exhibits P11 and P12, in relation to his role in the suspected fraudulently obtaining of G441 and related instruments. His response to the show cause notice and his statement to police were tendered, Exhibit P13.
  45. In his statement he said that at about 9:30 am on 7 June 2017 he was in the IPA car park with James Joshua and Mark Timea about to go and get some breakfast when the accused drove in. The accused directed Mark Timea to deliver a sealed envelope to the GPO for publication. The accused advised that fees for publication were inside the envelope. Since James Joshua had a vehicle and Mr Timea needed a lift they all went together. Mr Timea went to do the lodgement. As the GPO did not accept cash, James Joshua used his personal bank card to pay the fees. K500 from the accused was reimbursed to Mr Joshua. They all went back to the office. He denied any knowledge or involvement in any forged instruments.
  46. Mark Timea was employed as a Scanning Officer by the IPA in June 2017. He too was terminated in October 2017 in relation to his alleged involvement in the re-appointment of the accused. He was served with a charge and show cause notice, Exhibits P15 and P16. His response of 21 July 2017 was admitted as Exhibit P17. In his response he said that at around 9 am on 7 June 2017 James Joshua and Andy Ambulu were at the IPA carpark getting ready to go for breakfast when the accused drove in. He instructed them to go to the GPO to process instruments for his appointment as Chairman of the Securities Commission and Registrar of Companies. He advised that fees were inside the envelope. They were told to deliver the envelope containing the instrument to the GPO for gazettal. They went to the GPO and handed the instrument over for gazettal. They were advised to pay the gazettal fees electronically so James Joshua used his card and took the cash inside the envelope as reimbursement. They went back to the office. He denied any involvement in fraudulently obtaining the instrument without the Minister’s knowledge. He was simply following instructions.
  47. Under cross-examination he said he was attended by a female officer, Roselyn. She didn’t ask any questions, he often goes there and does gazettals.
  48. Gretel Ungaia has been the Legal Officer attached to the Securities Commission Division providing legal advice to the Office of the Managing Director, IPA and the Office of the Acting Registrar of Companies for the past six years. In June 2017, the Chairman of the Securities Commission was Christopher Hnanguie. The accused was the Acting Chairman of the Securities Commission from 2014 to 2016. Towards the end of 2016, around October, former Minister Maru revoked his appointment and appointed Mr. Benny Popotai as the Chairman.
  49. After the revocation the accused moved down to the ground floor of the IPA Office, to his substantive role as the Director, Business Registration. Mr Popotai never took office and they were left without an acting chairman. Then they were notified through the office of the Managing Director that there was a gazettal G441, an appointment from the Office of the Minister to appoint the accused as Chairman of the Securities Commission. She can’t recall the date, maybe around February or May 2017. There were questions about the validity of G441 and not long after they were served on the 25th of May 2017 with Mr Hnanguie’s appointment as the Chairman of the Securities Commission and the revocation of the accused through gazettal G523, Exhibit D14. At some point in 2017 the Minister revoked the accused’s appointment as Registrar of Companies and appointed Harriet Kokiva, as the Acting Registrar of Companies.
  50. She was not involved in the appointment of the accused as Chairman of the Securities Commission or the publication of G441. Normally once the Minister issues a gazettal it comes through the office of the Managing Director, IPA. A purchase order is raised to the GPO through the office of the Managing Director. Once payments are facilitated then gazettal can be printed or any other publication that needs to be published through the GPO. No payment was made by the IPA for G441.
  51. Under the old Securities Act 1997, it was the prerogative of the Minister to appoint and revoke, pursuant to s 4(4).
  52. Minister Maru signed the NEC submissions for the passing of three pieces of legislation, the Securities Commission Act, 2015, the Capital Markets Act, 2015, and the Central Depository Act 2015. At the time the accused was the Acting Chairman of the Commission. They took the initial submissions to the NEC Secretariat who told them to edit the document, which they did, and she and the accused took the documents to the Minister who signed them again. She then scanned and printed 60 copies of the submission and the bills for binding the next day. The Minister’s signature on the submission was scanned as well. After scanning the documents she saved them to a file called “NEC Submission” inside her folder in the Securities Commission drive, which all other officers within the division could access, including the accused. Her folder was called: GU-LEGAL UNIT. After the revocation of the accused, he moved down to an office on the ground floor. She went to the office the next day to access her work files and noticed that there was a duplicate copy of her folder on the drive, with copies of all the documents she had saved in it. She never made a duplicate of that folder.
  53. Under cross-examination she was shown one of the signatures that she scanned into her computer, in relation to the Central Depository Act of 2015. She agreed that the style of the signature on that document was not the same as that on Exhibit P1. The signature on the Capital Market’s Act was not really the same as Exhibit P1.
  54. The Securities Commission is an independent organization, administratively housed under the Investment Promotion Authority. The Commission uses the IPA’s facilities. The Chairman reports directly to the Minister, and not through the Managing Director of IPA. There are 5 divisions within the IPA. Appointments are made by the Minister and facilitated down through the office of the Managing Director, in terms of notifications. The divisions report directly to the Minister regarding the administration of the respective laws but all five divisions have an obligation to report to the Managing Director of the IPA for administrative purposes, in accordance with the strategic plans determined by the IPA Board.
  55. She believed that it was the accused who accessed her folder. There were only 6 people that had access: herself, Ms Vanessa Vina, Mr Kit Kipma, Mr Solomon Silion, Mr Andy Ambulu, and Mr James Joshua. She agreed she didn’t see him do it with her own eyes.
  56. Rogerlyn Tapaua, is the Senior Publication Officer, within the Publication Office, GPO. She oversees all the instruments received from the counter service clerk. Usually when instruments are brought in and received a quotation is given and then payment is done. The gazette is registered indicating the code number, invoice number, and the receipt number and the instrument is allocated for typesetting, then for first and second proof reading before the final draft is printed and placed in the outward tray for dispatch. It usually goes back to the counter service clerk.
  57. Two instruments were lodged with the GPO which appointed the accused as the Chairman of the Securities Commission and the Registrar of Companies on 7 June 2017 between 10 am and 12 pm. She was at the counter at the time. Three men from the IPA came, Mark Timea and two others whose name she did not know but whose faces she knew as staff from the IPA, and gave her the two instruments. She forwarded the instruments to the quotation clerk, and then brought the quotation to the three men. Payment was done over the counter through the eftpos machine. She registered the instruments, the gazette number was G441, and forwarded the instruments to the typesetter. The instruments were scanned copies. It was standard procedure in the office to only publish original instruments but she was told that the instruments were quite urgent. She was not told the reason for the urgency. They just said that it was urgent, they wanted same day service, publication of the instrument in the National Gazette. Given the relationship with the IPA built over the years and after knowing the staff at the IPA it was agreed that they would provide the original signed copy upon collection of the National Gazette. She was at lunch when they came back to pick up the gazette. She instructed the officers who remained in the office to get hold of the original but that was not done. The original instruments were brought in after a few days. She does not know who brought them in. The original copies are with the Government Printer, Christine Lanterut.
  58. Government departments and the statutory bodies normally pay via purchase orders but if it is urgent some officers pay using their card and then they go back and get their reimbursements so that is accepted. Exhibit D13, is National Gazette number G441 that was published after she received the instruments on 7 June 2017. Exhibit P18 the GPO Official Receipt, No. 377733 raised by the receivable clerk: Exhibit P19 the work ticket number 443 of 2017 was raised by Ms Tapaua at 11 am. She identified Exhibits P1 and P2 as the instruments provided for gazettal on 7 June 2017.
  59. Under cross-examination she denied that she had been coached to use the term “scanned copy”. She agreed that she did not use the term “scanned document” in her statement, which she gave in February 2020. She was sure that an original instrument came later on. It was normal for Mark Timea to bring instruments for gazettal from the IPA. In response to the suggestion that she could not be sure if the instrument provided to her was the original or not, whether it was signed in black biro or black computer ink, she said it was more like a photocopy. She is not responsible for the difference in presentation between Exhibit D15 and Exhibit P1. In re-examination she confirmed that P1 and P2 were the instruments submitted to her on 7 June 2017 by Mark Timea. She never received Exhibit D15.
  60. Christine Lenturut is the Government Printer, in charge of the GPO. She had gone on maternity leave three days before the instruments were brought in on 7 June 2017 but was informed about the publication when she returned from leave. Upon being asked for copies of the documents that were submitted to the GPO for publication she made enquiries with the Acting Government Printer and the staff responsible. She has not sighted the original instruments but brought with her to court the instruments that were lodged with the GPO on 7 June 2017.
  61. The defence strongly objected to the tender of the documents on the basis that they had not been produced to them previously. I suggested to the defence that it might be in their interests to have regard to the documents and that they would be given an opportunity to do so if requested but the defence declined to do so and maintained its objection. Having regard to the obligations of the State to disclose the materials upon which it relies to the defence a reasonable time in advance of the trial, and the stage of the trial that had been reached, I refused to allow the State to tender the documents. Ms Lenturut confirmed that the instruments she held as being those provided to the GPO on 7 June 2017 were copies and not originals. She identified Exhibit P1 and P2 as copies of the documents she has in her custody at the GPO.
  62. Under cross examination she said she did not receive the original instruments from Rogerlyn Tapaua. She has never received any originals. As a general rule the GPO does not print gazettals on photocopies. She wrote to Ms Tapaua when she became aware of the matter and it has been emphasized over time in her capacity as the Government Printer that original documents with supporting cover letters should be provided by agencies when submitting important state documents to the GPO for gazettal. There is also an understanding, however, when it comes to central agencies and other state authorities with whom they have ongoing regular business contact that if the matter is urgent the GPO will proceed to typeset the document on the basis of the copy that’s given but that they don’t issue the gazette until an original document is presented.
  63. Chief Sergeant Felix Rayabrum is a police officer attached to the Document Examination section of the Forensic Science Laboratory in Gordons. He has previously engaged in the study of document examination, including the identification of hand writing and type writings, and the detection of alterations and erasings. He has been carrying out document examinations since March 1981. He examines many hundreds of documents connected with investigations by police and other government and statutory bodies during the course of investigations each year. He has appeared in court to give evidence regarding these examinations.
  64. He examined two documents from the GPO, Exhibits P1 and P2. He formed an opinion that the signatures are replicas, meaning that they are the same copies, they share the same characteristics and there are strong indications to suggest that they were electronically transferred from one document to another. He did a microscopic test on the two documents and measured the height and length of the signatures and found them to be identical copies. If they had been written they would have some variations. Variations are just a slight difference in writing and signatures as people are not machines and some variations are expected in every person’s hand writing, including their signature.
  65. Under cross-examination he said that he was not given anything to compare the two signatures with. He was given the two documents from the case officer and asked to say whether the two documents are by the same author or writer. Upon being shown Exhibit D15 he said that he couldn’t say anything about the signature unless he put it under laboratory examination. When he examined P1 and P2 he measured from the beginning to the end of the signature, length, plus the highest point of the signature to the base of the signature. The two signatures shared the same measurements, same height and length. He agreed that he did not set out his evidence about measurement or microscopic examination in his statement, Exhibit D16. It was not necessary. He denied that he was making it up.
  66. Clarence Hoot, is the Managing Director of the IPA. He has been with the IPA for twenty years, became acting Managing Director in 2016 and was confirmed in 2018. The IPA is the government agency charged with the responsibility of promoting investment into and within PNG. The IPA reports to the Ministry of Commerce and Industry, as one of the commercial statutory authorities. Within the IPA, under the Minister, there is a board of directors, which reports to the Minister. Under the board of directors, there is the Managing Director, who reports to the board. There are 5 divisions, under the Managing Director, which are headed by Directors. The 3rd regulatory division is the Securities Commission of Papua New Guinea, where the Chairman is appointed by the Minister. The Chairman executes an employment contract with the Managing Director of the IPA, as a staff member.
  67. The Minister would exercise his powers under the legislation to appoint the Chairman of the Securities Commission but in the course of getting the appointment formalized the Minister at some stage consults the Managing Director, and once all the paper work is prepared, one would expect the office of the Managing Director as the administrative head to undertake and complete the process of appointment. In that instance any document would come to the Managing Director who would then consult the Corporate Services Division to raise the necessary payments and seek appropriate staff to take any documents and the payments to fulfil the process. This would be the same for the appointment of Registrar of Companies.
  68. On or about 13 June 2017 a gazettal notice appointing the accused to the position of Registrar of Companies and the Chairman of the Securities Commission was delivered to his office. He issued a memorandum to the accused to resume duties. He then received calls and letters from the former Minister’s office querying the re-engagement of the accused. He was informed that the Minister had nothing to do with the gazettal, and was asked to undertake an investigation as to the basis of the gazettal, which he did. He was not involved in any way in the appointments or the publication of G441.
  69. Under cross-examination he said that the Chairman of the Securities Commission is administratively answerable to the Managing Director and one would expect the Managing Director to be brought to the appointment process at some stage. The Chairman executes a contract with the Managing Director. At the time appointment was at the Minister’s prerogative by virtue of s 4 of the Securities Commission Act 1997.
  70. He was shown a letter dated 29 July 2017 to the Government Printer from the Minister’s Frist Secretary asking him to facilitate the gazettal revoking the appointment of the accused as Chairman of the Securities Commission and appointing Christopher Hnanguie instead, on which he was only copied. Whilst the person contacting him was not the Minister but his First Secretary, he had been called by the Minister previously from Wewak. He agreed that he wrote a letter dated 31 July 2017, Exhibit D17, in response, seeking a copy of Mr Hnanguie’s CV and contact details so that arrangements could be made for him to move into the office and that the letter was addressed to the First Secretary, Chris Ningis and not the Minister. It was not strange that he was writing to the First Secretary and not the Minister. He agreed he had no say in Chris Hnanguie’s appointment. It was the Minister’s prerogative but as the Managing Director, he was the administrative contact.
  71. On 7 November 2017 he wrote to the accused terminating him from his substantive position of Director Business Registration, Exhibit D18. This was as a result of the investigation. He confirmed that at some point the accused had taken the Minister to court for wrongful termination from his position as Chairman of the Securities Commission. He could not recall if there were two separate proceedings but there were a number of legal proceedings, going back and forth. It appears that there was also as at 7 November 2017 a pending judicial review into the accused’s revocation as Registrar of Companies, and acting Chairman of Securities Commission of PNG.
  72. Matters relating to Koitaki Plantation Ltd were dealt with by the Minister and the Chairman. He was not privy to information regarding it or the particular issue between the Minister and the accused. He was not aware of differences between the minster and the accused.
  73. On 12 October 2017 the accused wrote to Mr Hoot seeking a three-week extension before implementation of the Board’s decision to terminate him from his substantive position pending the outcome of the court proceedings, Exhibit D19. The extension was granted.
  74. On 4 April 2018 the court found in favour of the accused in OS(JR) 777 of 2016. Following that decision, the accused was appointed the Chairman of the Securities Chairman by Minister Wera Mori: Exhibit D21.
  75. On 18 May 2018 Mr Hoot wrote to the accused asking him to refrain from taking up his duties as the Chairman of the Securities Commission until 28 Wednesday 2018 whilst he obtained independent legal advice from the Attorney General: Exhibit D22. He was not interfering with the Minister’s directions, “there were a lot of events happening, a lot of movements in the office, and a lot of decisions coming and he needed time to take stock of what was happening”.
  76. On 25 July 2017 Mr Hoot wrote to the Director of the Corporate Services Division asking him to review the response from Mark Timea and provide a recommendation as to the action to be taken against him, if any, in relation to the suspect instruments: Exhibit D23.
  77. On 20 July 2018 Mr Hoot wrote to police following up on a letter from Mr Maru on 24 May 2018 regarding the complaint he made in July 2017: Exhibit D 24. Whilst he was not the complainant in the matter, as Managing Director he had a responsibility to make sure that the office continued to provide services to the PNG public. The situation within the IPA office was very tense and he needed to address it, to make sure everything was in order, so that operations could continue as normal.
  78. As to the statement that: “The complaint was first reported in July 2017, after IPA management conducted its internal investigation on the origins of National Gazettal 441, and found that Alex Tongayu, with 3 other IPA officers were implicated in a criminal act which they deliberately prepared and published a fraudulent gazettal, G441, by forging Honourable Richard Maru’s the then Minister for Trade and Commerce signature”, those were the findings according to the investigation that was undertaken. He was not aware if the three other men were arrested and charged.
  79. As to the paragraph: “Accordingly section 19, 1 of the Securities Commission Act, 2015 disqualifies Alex Tongayu to act on the position of Chairman of the Securities Commission of Papua New Guinea after his direct involvement in the fraudulent National Gazette, G441. Also the pressing event with the IPA management is the court granted an order for him to be reinstated based on the misleading information including fraudulent gazettal G441”, it was not his intention to suggest to police that the accused was presenting false documents to the court.
  80. He agreed that under the new Securities Commission Act 2015, there shall be a selection committee to appoint the Chairman of Securities Commission.
  81. He agreed that he copied the letter to the Hon. Peter O’Neill, Prime Minister, Mathew Damaru, Director Fraud and Anti-Corruption, Mr. Victor Isouve, Acting Assistant Commissioner of Police, Crimes, Metropolitan Superintendent NCD, Chief Secretary, Isaac Lupari, and Chris Hnanguie, Executive Chairman, Securities Commission, Hon. Richard Maru, Minister for National Planning and Monitoring, Acting Secretary for Department of Personnel Management, Ms Taies Sansan, the Appointments Committee section 18 of the Securities Commission Act 2015, Hon. Patrick Pruaitch, Leader of Opposition, Hon. Wera Mori, Minister for Commerce and Industry, Hon. Charles Abel Treasurer and Deputy Prime Minister, Hon. Dairi Vele, Secretary for Treasury Department, Hon. Davis Steven, Justice and Attorney General Minister, Hon. Loi Bakani, Governor Bank of PNG and Hon. Elias Kapavore, Minister for Public Service. His intention was not to destroy the reputation of the accused. The matter had been ongoing since 2016, going back and forth in court, with numerous different appointments. As the administrative head he was seeking the attention of relevant people to put the matter to rest so that the Commission could run. He was in his position as administrator seeking ways to address the matter, to get the attention of the appointment committee to meet and to make the necessary decisions.
  82. In response to the suggestion that he was on a race against time to have the accused arrested before he could be appointed Acting Chairman of the Securities Commission by the selection committee he said that his interest as the administrative head was to have the appointment committee meet to make a decision once and for all, because going back and forth between the two candidates was not good for the organization.
  83. In relation to the paragraph: “I therefore request for your utmost support for a joint RPNGC Fraud and Anti-Corruption, IPA co-operation to expediate the necessary actions on Alex Tongayu and the three IPA officers implicated in Fraudulent gazette of G441”, he was writing in his capacity as the Acting Managing Director of Investment Promotion Authority, nothing in the letter was personalized.
  84. He was not aware or could not recall when the accused was arrested. When shown his statement he agreed that he must have known at the time he gave it to police that the accused was arrested in November 2018. He agreed that at the time he wrote his letter in July 2018 the accused had not yet been arrested. But he denied that he was trying to ensure that the accused was arrested and that his chances of taking office would never eventuate. That was never his intention.
  85. He could not confirm if the accused was the current Acting Chairman of the Securities Commission. He was shown a gazettal by the Governor General, Sir Bob Dadae, acting on the advice of the Appointment Committee, Securities Commissions Act, Section 18 Securities Commissions Act 2015, appointing the accused as the Acting Chairman of the Securities Commissions. It was the first he’d seen the gazettal. There was a lot happening at that time and he may have missed the gazettal.
  86. He did not have any problems receiving letters from Christopher Ningis, as First Secretary from the Office of the Minister, because he was under the impression he was receiving instructions from the Minister whilst the latter was on the campaign trail.
  87. Further to the letter of 10 April 2017, Exhibit D21, a further letter dated 17 April 2017, was sent from Larsaik Joseph, First Secretary to Minister Wera Mori, Exhibit D29, enclosing the instrument appointing the accused Chairman of the Securities Commission under National Gazette G249 of 2018, per the order of the National Court in OS JR 777 of 2017, Alex Tongayu v Richard Maru. The letter asked for Mr Hoot to take necessary steps to have Mr. Christopher Hnanguie vacate office. The Minister expected Mr. Tongayu to take office immediately to work with the Hon. Minister to address issues with respect to Securities Commission and the Capital Market. In response Mr Hoot wrote a 10-page opinion to the Minister with certain recommendations: Exhibit D28. In the brief he said: “Mr. Joseph is not the right person to write directly to the Acting Managing Directors office. He has breached his line of protocol. He is only an ancillary Ministerial staff of the Minister’s office and this does not give him the legal mandate to write on statutory matters on appointment and revocation. This approach has put the repute of the good Minister in question.” It was suggested that he had been gladly accepting and responding to correspondence from Chris Ningis, the First Secretary of Richard Maru. He explained it was a different scenario as the former Minister was on campaign trail at the time. He was not biased. He was not playing politics or favouritism.
  88. By comparison he was shown Exhibit D25 from Chris Ningis, First Secretary for Minister Maru dated 20 July attaching a copy of the revocation of the accused’s appointment as Chairman of the Security Commission and appointing Christopher Hnanguie. He directed the memo to the Director Corporate Services : “Note the gazettal. Prepare memo to Alex advising of his revocation with immediate effect. We will make contact with Chris the appointee. I will meet SC staff today to inform them of the above”. In response to the suggestion that he was playing favouritism with one Minister and refusing to obey the next incumbent, as he had repeatedly said, “there were a lot of developments happening on this matter, and he needed to take stock of the continuous changes on the appointees”.
  89. In his view his brief to Minister Mori provided all the positions on the matter from beginning to the end, in his role as administrative head to put the matter to rest. His recommendation that court order OS JR 777/2016 had no legal effect upon the current Minister was based on legal advice.
  90. On 11 April 2018 a press statement was issued by Honourable Wera Mori, Exhibit D26, stating that the accused was the Acting Chairman of the Securities Commission. He did not receive documentation from the Appointments Committee regarding the accused’s appointment. He has no personal interest in the position of Chairman of the Securities Commission.
  91. On 5 October 2017 Mr Hoot wrote to the accused, Exhibit D27. It said: “The IPA Board in its third quarter meeting on the 6 of December 2017, discussed at length your suspension, and response to the Charge made against you in relation to the National Gazettal Number 441. The board had initially supported your action’s to seek a judicial review through the National Court on the revocation of Registrar of Companies, and Acting Chairman of Securities Commission, PNG. IPA agreed to pay for your legal fees, in relation to your judicial review. “In 2017 the accused was well favoured by the Board. When the matter started, the board and management were fully supportive and worked with the accused until such time as the investigations were concluded and the fraudulent gazettal was established and that’s when the Board changed its position because the integrity and reputation of the authority and the Government needed to be protected.
  92. In response to the proposition that the Minister and his men, Christopher Ningis, and other associates of Minister Maru framed the accused to receive the forged instrument he said that he did not participate in the preparation of the gazettal so he would not be aware.
  93. The investigating officer, Detective First Constable Lapison Waira, is a police officer of nine years standing, attached to the National Fraud and Anti-Corruption Directorate for the past six years. He confirmed that Exhibit P1 and P2 were the documents obtained from the GPO. He received scanned and copied documents and not originals. They were also the documents provided to Chief Sergeant Rayabrum for examination. He confirmed that First Legislative Counsel produced Exhibit D15.
  94. He maintained that he could not differentiate between Exhibit D15 and P1. He agreed that on the face of it, Exhibit D15 was darker or bolder than Exhibit P1 but he was not an expert. He did not engage an IT expert to explain the difference between the two documents. It was not required. He provided D15 to the forensic examiner. He did not search the accused’s computer at the IPA nor at his home. He did not consider it was necessary to obtain evidence from Chris Ningis as a witness. He decided not to arrest the three other men implicated from the IPA because he wanted them to be State witnesses.
  95. In relation to the complaint against the accused for forging Minister Wera Mori’s signature, the police decided to withdraw the matter and allow the current matter to go to court first. He was not aware if there was a lot of media attention when the accused was arrested for the second time in relation to the signature of another minister. He agreed that Minister Mori had publicly stated that the accused did not forge his signature. The complaint was made by Chris Hnanguie. He wrote to Sergeant Wamugl, who was in charge of the case, advising him to withdraw the matter on advice of the Office of the Public Prosecutor: Exhibit D30.

DEFENCE CASE


  1. The accused gave evidence in his own defence.
  2. The accused is 42 years old. He obtained his Bachelor of Law from UPNG in 2001, graduated from the Legal Training Institute in 2002 and was admitted to the Bar in 2002. He obtained a Masters in Public Administration from Divine Word University in 2014. He also has a certificate in Fundamentals of Capital Markets from Zurich, Switzerland. His first employment was as a State Prosecutor with the Office of the Public Prosecutor before he joined the IPA in June 2006 as a Senior Legal Officer, attached to the Registrar of Companies Office. At the time the Securities Commission was existing by name only within the Registrar of Companies office so he was appointed as the only officer and tasked with building the Securities Commission from scratch. His role was to regulate the Capital Markets in the country, the Port Moresby Stock Exchange then any mergers and acquisitions and take overs, any new IPO’s. He had to preside over everything in addition to his role as being the Legal Officer of IPA, dealing with especially litigation matters. In November 2006 he was appointed the Registrar of Companies, whilst at the same time he was also the only officer with the Securities Commission. In 2010 he was appointed Chairman of the Securities Commission. In 2011 following the change of Government, the then Deputy Prime Minister, Hon. Belden Namah, when he was Acting Minister for Commerce, revoked his appointments as both Registrar and Chairman of the Securities Commission. He was re-appointed Registrar of Companies by then Hon. Charles Abel just a week later but was not reappointed as Chairman of the Securities Commission. Douglas Uyassi was appointed by Hon. Belden Namah, as Chairman of the Securities Commission. In 2012 Mr Maru then revoked Douglas Uyassi’s appointment and reappointed him as the Chairman of the Securities Commission.
  3. At the time of his appointment by Minister Maru he was the Director of the Business Registration and Regulation Division with the IPA and then he was the Registrar of Companies, and the Registrar of Business Groups. He was also the Chairman of the Accounting Standards Board of Papua New Guinea. From 2012 onwards he was the Director and the Registrar of Companies, the Registrar of Business Groups, and the Chairman of the Accounting Standards Board. He was also appointed Registrar of Personal Properties and Securities by the Treasurer at that time, Hon. Patrick Pruaitch, whom he reported to under different legislation.
  4. In 2014 he was appointed Acting Registrar of Corporate Strategies by Minister Maru. He was only paid for being the Director of Business Registration and Regulation within IPA. He received nothing else for the other positions.
  5. On 19 October 2016 he was advised of the revocation of his position as Acting Chairman by Minister Maru. On or about 6 or 7 March 2017, he received a revocation notice as the Registrar of Companies by Minister Maru. But his employment with IPA as the Director of Business Registration and Regulation was never terminated.
  6. On or about 7 June 2017 he was at the house in the morning at around 9 o’clock when he received a call from the Minister’s Office. He drove to the Minister’s Office at Moale Haus. He went to the counter. As usual there were about three of the Minister’s boys sitting in the counter area. If the Minister wanted to see him they would call and ask him to come to the office. So between 9 and 930 am he picked up a yellow envelope from the counter. It wasn’t sealed. He opened it and saw inside that there were two instruments and that the instruments were written in black biro.
  7. Chris Ningis is the Minister’s First Secretary and he is always in the office, whether or not the Minister is in the office. Chris always looks after the office and he was advised by the boys that he was in the office. He got the instruments and as usual he went down to the IPA to give them to the person who usually does all the publications, and goes back and forth to the GPO, Mark Timea. When he drove into his own carpark in front of the office he saw Mark coming out with two other boys and he said: “Mark this envelope here, inside there is the instruments. As usual go down to Government Printer and do the right thing, publish that”. He also advised that “there is money for publication in there”. And he advised that he had sealed the document in the envelope “so get that and go to the Government Printing and get through the process”.
  8. It was common practice to provide cash when things needed urgent publication. They used their own funds and later sought reimbursement from the office. That has been the practice all along. For this purpose as the Director for Business & Registration, he had a budget of K4.5 million for the full year, which basically was his own budget and those costs are budgeted for within the operations aspect of it. Afterwards he would seek reimbursement of it from his own budget but through the IPA process.
  9. He gave the instruments to Mark. Mark was basically his officer and has been the focal point in terms of taking documents to the GPO for publication for more than 10 years. He did not say anything to the other two men present at the time. He has no relationship with Mark outside of employment.
  10. The instruments that came from the GPO to court are copies of what came from Minister Maru’s Office through Chris Ningis. The signature on the instruments was written in black biro. When you look at his other letters and correspondence, the Minister always writes in black biro.
  11. He gave the documents to Mark. As to what happened at the GPO he would not know.
  12. Exhibits P1 and P2 are copies of the documents that were delivered to him that morning. He received originals. As for Exhibit D15 he has never seen it before. In terms of the content it’s the same but in terms of the format it is different. All of it is bold. The other one has got clear writing with a few bolds so in terms of texture and structure they are completely different instruments.
  13. In response to the allegation that he produced Exhibits P1 and P2, he said that he was old school, so in terms of computers he does type but as to the allegation that “he could scan and the like, he had no idea”. He picked up the documents from the Minister’s officers and the allegations are not true. He did not scan the signatures from one document to another. He only knows how to type and print so in terms of software he has no idea.
  14. Koitaki Plantation Limited (KPL) was a company registered sometime in 1948, and the company has always being owned by private individuals. The State has never been a shareholder. The State brought about 3000 cows from Erap in Morobe Province for Koitaki Plantation to look after them and then sell them. The land is a state lease owned by KPL. It’s about 56 titles or leases of land altogether. KPL has always been a private company. Only the shareholders have the right to dispose of the shares, not the State. The State’s interest was basically only as an investor. In terms of investment you can get a return from your investment but you do not have ownership rights in the company by virtue of that investment. Other than the letter from the Minister, he received no other complaints from the shareholders themselves.
  15. He responded to the Minister’s requests in D2 and D3 as to the history of the company, and the names of the shareholders since its inception, in his brief D4. There were no other records that could have been provided to him from the IPA’s records.
  16. D5 is a Ministerial Brief he prepared on 19 October 2016. It sets out the process in which a company is registered and how the assets of companies can be transferred. Under s 72 of the Companies Act, when a company is deregistered all the assets of that deregistered company are invested in the Registrar of Companies. Section 3 (5) allows the Registrar of Companies to dispose of any assets of deregistered companies. The Minister directed him to deregister KPL so that the assets would come under his custody. He had to advise the Minister that it was not legal. It was not the right thing do too because the company was a private company. The power to deregister is vested only in the Registrar of Companies and the Minister had no power to direct the Registrar. By directing him to deregister the company and then transfer the assets of the company to some entity without paying the owners of the company the Minister was directing him to steal using the law and he was not prepared to do that. The brief advised the Minister not to do that because then both of them would be in the wrong.
  17. As a result of the extreme stress and pressure that he was put under by Minister Maru to have KPL deregistered he issued a notice of intention to deregister KPL, G666, on 13 September 2016: Exhibit D31. The advice was given to the Minister before he placed the notice under G666. On the morning of 19 October he went to Minister Maru’s office, sat down and delivered the brief to him. They had a discussion. There were “a bit of differences” and then he left. Later the same day he was told to go down to Government House to collect his MBE for distinguished leadership in the business community. When he came back the next day his revocation was waiting for him. He then wrote a letter to the Minister advising him that his revocation was not done according to law. There was some correspondences back and forth and he advised the Minister that he would refer him to the Ombudsman Commission and the police for official corruption.
  18. On 5 October 2016 the accused received a letter from the Office of the Prime Minister to the effect that Minister Maru’s instructions with respect to KPL was not supported by the government: Exhibit D32.
  19. Exhibit D8: He agrees with the views expressed by NKA Chartered Accountants that the transfer of the shareholding to the new owners was done according to proper process, under law.
  20. Exhibit D9: “I write to you to place on record my disbelief that you have the audacity to write to me to threaten me to leak confidential letters to me on Koitaki Plantation and the revocation of your appointment as the Acting Chairman of the Securities Commission.” The correspondence was not confidential but public records. The letter is a coloured copy and it shows that the Minister signed with a black biro.
  21. By Exhibit D10 dated 18 November 2016 he notified Minister Maru of his intention to take him to court for the revocation of his appointment as Chairman of the Securities Commission. According to ss 4 and 6 of the Securities Commission Act 1997 the Chairman may be removed from office by the Minister for reasons of disability, bankruptcy or neglect of duty. He was not terminated for any one of those reasons. On 4 April 2018 the Court quashed Minister Maru’s decision to revoke his appointment.
  22. In his letter, Exhibit D11, dated 18 November 2016 he refers to the Minister’s decision to refer him to police and states that he will refer the Minister to the police for extortion, black mailing and official corruption, and to the Ombudsman Commission “to ascertain whether you have the powers to direct me to remove Koitaki Plantations Limited from the register and further transfer the assets of Koitaki Plantation Ltd to Kumul Consolidated Holdings Limited”.
  23. Exhibit P5: 8th of February, NEC decision 24 of 2017. The meeting concerned the suspension of key agency heads involved in the Manu Manu land deal. He was one of the agency heads removed. The Minister never wrote a complaint to him about his involvement in that land deal. He has not been prosecuted or received any further allegations about the Manu Manu land deal.
  24. After the publication of G441 he went back and assumed the office of the Chairman. He was already an employee of the IPA and he continued performing his functions as Chairman within the office. And then on 19th July he was surprised by the Managing Director who told him that the Minister had given a gazette revoking his June appointment.
  25. Exhibit D19: 12 October 2017 from himself to the Acting Managing Director: “While I learnt that my purported reappointment which now appears to be an alleged fraud which was actually a setup from the same source of my termination.” After his revocation he had been advised by well-placed sources within the Minister’s circle that his advice and refusal to comply with his directive has frustrated the Minister and that the Minister “would do anything to ensure” that he was removed from the IPA as the Chairman and the Registrar, and eventually from the public service.
  26. The advice he was giving to the Minister in briefs, Exhibits D4 and D5, was given in good faith. His position was revoked for protecting the integrity of the Registrar of Companies against Minister Maru’s unlawful direction to de-register Koitaki Plantation Ltd, a private company and transfer all the assets to Kumul Consolidated Holdings.
  27. In OS 367/2017 he sued the Minister for revoking his position as Registrar of Companies. In 2018 the court quashed the decision of Minister Maru.
  28. Exhibit D19: 10 April 2018 from Hon. Wera Mori: “As you aware Mr. Tongayu is the expert behind the successful establishment of the Securities Commission since 2006, and it is therefore only proper for him to resume his duties and continue on the good work he has done.”
  29. On the 24th of October 2018, the Appointment Committee sat and advised the Governor General to formally appoint him. On 13 November 2018 he was appointed Acting Chairman of the Securities Commission by the Securities Commission Appointment Committee under s 18 of the Securities Commission Act, 2015. In between he was arrested on 7 or 8 November 2018 in relation to this case.
  30. On 3 April 2019 he was arrested for allegedly forging Minister Mori’s signature to appoint himself as the Chairman. The complainants were basically the same group of people, Chris Hnanguie, Clarence Hoot and Richard Maru. Minister Mori publicly confirmed that he did not forge his signature: D26.
  31. He did not forge Minister Maru’s signature. He received a call from a male on a landline from the Minister’s office. He was told in pidgin: “Wara, boss lusim wan pela something bilong yu, ya”. “Wara” is slang they normally use. He had been working under Richard Maru as the Acting Chairman for five years so he worked together with his staff on a daily basis. They called themselves “Wara” in the Sepik language. Richard Maru is from East Sepik. He is from Hela which boarders West Sepik. They usually call themselves “Wara”, because he is from the head of the water, River Sepik, and they are down there. So they were saying: “Wara, come to the office and pick up a thing that boss has left for you”. The conversation lasted less than a minute. He was familiar with the voice. It was a normal thing for him to receive a call from the Minister’s office. He drove from his house at Kennedy Estate. It took about 10 to 15 minutes to get to Moale House. He walked up to the 2nd Floor, comprising the Secretary’s office, the Minister’s office and the International Business Branch. The guy who usually sits in front was there. He asked him where the thing was that you said the boss left me and he gave him a yellow envelope.
  32. As a result of the revocation life has been hell. He has lost everything. The career he built over so many years, through hard work, was destroyed and everything that he stood for was destroyed for something that he had never done. He basically did everything to save his country. He protected the office from being destroyed. He had to stand up for the office and sacrifice everything for the cost of protecting the integrity of the office. He has no bad record against him over all of his life. He had never before been charged at the IPA. Whatever he has achieved at the IPA was gone for something he was set up for.
  33. At the moment he is the Acting Chairman of the Securities Commission of PNG. He was appointed by the Governor General as per G741 and operates separately at MRDC Haus Level 3, after the National Government approved it as an independent office. He started building the office up in 2006, and finally in 2019, he achieved that dream and established the office.
  34. Under cross-examination he agreed that he was aggrieved following the revocation of his position as Acting Chairman of the Securities Commission in October 2016. He filed judicial review proceedings. In March his appointment as the Registrar of Companies was revoked by Minister Maru. He was not angry. He allowed the process to take place. He was revoked for giving the right advice not because the relationship had deteriorated because he had refused to provide information.
  35. He did not reappoint himself because he believed he should not have been removed. In response to the question that he was the only person who would have signed the instrument of appointment, he said that “it’s on record that the signature was never signed but was scanned, so it’s not me. I never did that.”
  36. He agreed that on the morning of 7 June he drove into the IPA carpark and saw Mark Timea, James Joshua, and Andy Ambulu and gave them an envelope and told them that the envelope contains instruments of his appointment and cash. He does not know what happened to the originals at the GPO. As to why there was cash inside the envelope when he knows that they don’t allow cash at the GPO, he said that when it was a gazette that had to be published quickly, you pay in cash first and get reimbursed. On that day it was his cash money so he would get the reimbursement. He has a budget of K4m including for reimbursements at the GPO. It’s part of the admin process in the office. It was not true that he wanted it to be published urgently because it was forged.
  37. The accused was cross-examined in relation to Mr Timea’s response to Mr Hoot, Exhibit P 17 and confirmed that what Mr Timea said was correct. He agreed that he may have written to Mr Hoot to the effect that Mr. Timea was not involved in the matter in any way and that an envelope was floating somewhere at a carpark in Waigani and was picked up to be couriered to the office. It was his honest mistake paying for the publication and he was sure it was an honest mistake by a loyal staff who was doing it for him and the office. The expression “floating in a car park in Waigani” was slang used in the commercial world to refer to the Minister’s office.
  38. Things for publication from the Minister’s office are always urgent. There was nothing unusual about it being done in a single day. As to why the Minister would reappoint him that was a matter for the Minister. He had no idea. He only learned afterwards that he came back from Wewak, if that is true, to revoke the appointment, and that he had no intention of appointing him again. He was not fabricating evidence when he said he collected the envelope from the Minister’s Office.
  39. He was an IPA employee till November 2018, even after the alleged fraud he was still an employee of IPA, still enjoying his salaries and privileges, nothing was basically taken away from him until 7 November 2018, so there was nothing to gain because the positions do not attract any salary or privileges or any benefit. Why would he appoint himself when there are no benefits arising from the position of Chairman and Registrar and he is only paid as the Director?
  40. Rogerlyn Tapaua must be lying when she says she was given photocopies by Mark Timea. Christine Lenturut would not know what happened because she was on leave. He exercised his constitutional rights in the record of interview to remain silent in response to all questions.
  41. It was not the case that the evidence he gave that he picked up the instruments from the Minister’s office is totally new evidence. His appeal to the IPA Board contains that.
  42. He had no idea that Mr Maru was angry or that he would never have reappointed him in June 2017. He had never expressed any anger towards him before he came to court in 2020. The Minister’s own circle told him in August, September and October that he was very angry about his refusal to comply with instructions to take over the 56 titles of Koitaki land.
  43. In response to the Court’s question as to whether following his earlier revocations in October 2016 and March 2017 he was surprised at being reappointed, he said there was a “bit of excitement”. As to whether he ever got reimbursed for the money at the GPO he said that as the money was James Joshua’s, he could not confirm, recall or deny that.

SUBMISSIONS


  1. Both the State and the defence made lengthy submissions.
  2. Essentially the State submits that the instruments appointing the accused to the position of Chairman of the Securities Commission and Registrar of Companies, Exhibits P1 and P2, were not made by Mr Maru and that the only person who would and did forge the instruments of appointment was the accused. He took advantage of the absence of the Minister from Port Moresby whilst election campaigning to appoint himself to the positions of Registrar of Companies and Chairman of the Securities Commission.
  3. It is the accused’s case that he was called to, and did collect from, the Minister’s office original instruments of appointment signed in black ink by Mr Maru, and that he gave those instruments to Mark Timea for publication at the GPO. He says that the signatures on Exhibits P1 and P2 are clearly scanned images and that he did not and could not do that.
  4. The State witnesses were cross-examined extensively. A total of 33 exhibits were tendered by the defence. In summary, the defence contends that Mr Maru, motivated by hatred, and assisted by his associates, framed the accused with the intention of doing anything he could to stop the accused ever being appointed to the position of Chairman of the Securities Commission and/or Registrar of Companies, or any other position within the Public Service. They were motivated by the Court decision of OS 777 of 2016, which quashed the accused’s termination. They were also motivated to stop the decision of the appointments committee of 24 October 2018 appointing the accused Acting Chairman of the Securities Commission, which decision was published in G741 on 13 November 2018. In the meantime, the accused was arrested on 7 or 8 November 2018. Mr Maru, “his stooge Clarence Hoot”, and Christopher Hnanguie, were all trying to derail the appointment. Furthermore, each and every State witness came to court to give untruthful and biased evidence as part of efforts to frame the accused for forgery.
  5. The submissions, together with submissions regarding the credibility of each of the State witnesses, are addressed in detail below.
  6. I note here that in making my assessment of each witness, I have considered their demeanour whilst giving evidence as well as the content of that evidence, both in the context of their own evidence, and in the context of the evidence as a whole, and bearing in mind that I may accept or reject any part of a witness’ evidence.

FORGERY


  1. Section 462(1) of the Criminal Code creates the offence of forgery (emphasis mine):

(1) A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.


Penalty: If no other punishment is provided–imprisonment for a term not exceeding three years.


  1. Section 460 of the Criminal Code provides the definition of forgery. It says:

(1) In this section, “make a false document or writing” includes–


(a) altering a genuine document or writing in a material part, whether by erasure, obliteration, removal or otherwise; and

(b) making a material addition to the body of a genuine document or writing; and

(c) adding to a genuine document or writing a false date, attestation, seal or other material matter.


(2) A person who makes a false document or writing, knowing it to be false, and with intent that it may in any way be used or acted on as genuine, whether in Papua New Guinea or elsewhere–


(a) to the prejudice of a person; or

(b) with intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Papua New Guinea or elsewhere,


is said to forge the document or writing.


(3) A person who makes–

(a) a counterfeit seal or mark; or

(b) an impression of a counterfeit seal knowing the seal to be counterfeit; or

(c) a counterfeit representation of the impression of a genuine seal; or

(d) without lawful authority, an impression of a genuine seal,

with intent that the thing so made may in any way be used or acted on as genuine, whether in Papua New Guinea or elsewhere–

(e) to the prejudice of any person; or

(f) with intent that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Papua New Guinea or elsewhere,

is said to forge the seal or mark.


(4) It is immaterial in what language a forged document or writing is expressed.


(5) It is immaterial that the forger of any thing forged did not intend that a particular person–

(a) should use or act on it; or

(b) should be prejudiced by it; or

(c) be induced to do or refrain from doing any act.


(6) It is immaterial that the thing forged is incomplete, or does not purport to be a document, writing or seal that would be binding in law for any particular purpose, if it is so made, and is of such a kind, as to indicate that it was intended to be used or acted on.


  1. Section 459 provides the following definitions:

(1) In this Division–


“document” includes–

(a) a register or register-book, or a part of a register or register-book; and

(b) any–

(i) book; and

(ii) paper, parchment or other material, used for writing or printing,

that is marked with any letters or marks denoting words, or with any other signs capable of conveying a definite meaning to persons conversant with them, but does not include trade marks on articles of commerce;


“resemble” applied to any thing, includes the case where the thing is made to resemble, or is apparently intended to resemble, the object spoken of;


“seal” includes any stamp, die or other thing, from which an impression can be taken by means of pressure or of ink, or by any other means;


“writing” includes a mere signature and a mark of any kind.


(2) A document or writing is said to be false–


(a) in the case of a document that–


(i) is a register or record kept by lawful authority; or

(ii) is an entry in any such register; or

(iii) purports to be issued by lawful authority as testifying–


(A) to the contents of any register or record kept by lawful authority; or

(B) to any fact or event,

if any material particular stated in the document is untrue; or


(b) if the whole or some material part of the document or writing–


(i) purports to be made by or on behalf of some person who did not make it or authorize it to be made; or

(ii) where the time or place of making is material–is, with a fraudulent intent, falsely dated as to the time or place of making even though it is made by or by the authority of the person by whom it purports to be made; or


(c) if the whole or some material part of the document or writing purports to be made by or on behalf of a person who does not, in fact, exist; or


(d) if it is made in the name of an existing person, either by that person himself or by his authority, with the fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who made it or authorized it to be made.


(3) A seal or mark is said to be counterfeit if it is made without lawful authority, and is in such a form as to resemble a genuine seal or mark, or, in the case of a seal, in such a form as to be capable of producing impressions resembling those produced by a genuine seal.


(4) A representation of the impression of a seal is said to be counterfeit if it is not in fact made by the seal.


  1. Applying s 460(2), to establish the offence of forgery pursuant to s 462(1) of the Criminal Code, the State must prove each of the following elements beyond reasonable doubt, such that the accused:

a) made a false document or writing or seal;

b) knowing it to be false, and with intent that it may in any way be used or acted on as genuine;

c) to the prejudice of a person OR with the intention that a person may, in the belief that it is genuine, be induced to do or refrain from doing any act.


  1. Pursuant to s 459(2)(b)(i) of the Criminal Code, a document or writing is said to be false if the whole or some material part of the document or writing purports to be made by or on behalf of some person who did not make it or authorize it to be made.
  2. All elements are in dispute.

CIRCUMSTANTIAL CASE


  1. The evidence to establish the alleged offence in this case is circumstantial. The principles governing such cases are well established. In a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. See also The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308):

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstantial evidence are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R 619 at 634. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen (1963) C.L.R 234 at 252, see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp. 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: Peacock v. The Queen at p. 661.

An inference as to the guilt of an accused should be drawn only after the court had made a full and thorough evaluation of all the circumstances in evidence ... ”.


  1. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence: see the comments of the High Court of Australia in De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at [48] referred to in The State v Epei (2019) N7845. To give a simple example, a case resting upon multiple pieces of circumstantial evidence may be much stronger than one resting upon the direct identification evidence of one witness. Similarly, the principles applicable in a circumstantial case are no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: see Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at [2]. This will depend upon whether all of the evidence establishes that the only rational conclusion is the guilt of the accused.
  2. As above, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Paulus Pawa (supra). The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Baden-Clay at [46] to [47][1]. The essential elements of the offence must be proved beyond reasonable doubt but it is not necessary for every fact, or every piece of evidence, relied upon to be proved beyond reasonable doubt: Shepherd v R, supra at [6].
  3. The High Court also observed in Baden-Clay, approved in Roland Tom v State (2019) SC1833 that:

“a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."


  1. Further, at [62]: “It may readily be accepted that "it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference."[2] Where an accused chooses to give evidence, however, that evidence may narrow the range of alternative hypothesis reasonably available upon the evidence: [54], [55], [62] and [63]. As I said in Epei (supra) at [50], to my mind that approach equally applies in this jurisdiction.

UNDISPUTED FINDINGS OF FACT


  1. The following facts are not in dispute:
  2. Exhibit P1: Copy of Revocation of Acting Appointment and Appointment of Registrar of Companies appears as follows:
Sec 394(2)(a)
REVOCATION OF ACTING APPOINTMENT AND APPOINTMENT
OF REGISTRAR OF COMPANIES
I, RICHARD MARU, OBE., MP, Minister for Trade, Commerce and Industry, by virtue of the powers conferred by Section 394(2)(a) of the Companies Act 1997 and all other powers me enabling, hereby –
(a) revoke the appointment of Harriet Kokiva as the Acting Registrar of Companies; and
(b) appoint ALEX TONGAYU as the Registrar of Companies retrospective to 9th day of March 2016.
Dated this 25th day of May 2017
[signature appears here]
-_____________________________________
HON. RICHARD MARU, BTECH, MBA, OBE, MP

  1. Exhibit P2: Copy of Revocation of Acting Appointment and Appointment of the Chairman of the Securities Commission of Papua New Guinea dated 25 May 2017, P2, is as follows:
Sec 4(4)
REVOCATION OF ACTING APPOINTMENT AND APPOINTMENT OF
THE CHAIRMAN OF THE SECURITIES COMMISSION OF PAPUA NEW GUINEA
I, RICHARD MARU, OBE., MP, Minister for Trade, Commerce and Industry, by virtue of the powers conferred by Section 4(4), (5) (6) of the Securities Act 1997 and all other powers me enabling, hereby –
(a) revoke the appointment of BENNY POPOTAI as the Acting Chairman of the Securities Commission of Papua New Guinea; and
(b) appoint ALEX TONGAYU as the Chairman of the Securities Commission of Papua New Guinea retrospective to 19th day of October 2016.
Dated this 25th day of May 2017
[signature appears here]
-_____________________________________
HON. RICHARD MARU, BTECH, MBA, OBE, MP

  1. Exhibit D13 is a copy of National Gazette G441 dated 7 June 2017 publishing the instruments of appointment.
  2. Exhibit P4 is a copy of the public notice as it appeared in Post-Courier on Wednesday 26 July 2017. It is in the same terms as Exhibit P3 which is dated 6 June 2017 and signed by Minister Maru. It states:


The Minister for Trade Commerce and Industry Rt Hon. Richard Maru OBE, MP refutes claims of his involvement in the reappointment of Mr Alex Tongayu as the Registrar of Companies and as the Chairman of the Securities Commission of Papua New Guinea.

As far as the Minister is concerned, Mr Tongayu’s appointment as the Acting Chairman of the Securities Commission was revoked on 19th October 2016 in Gazette No G788 of 2016. Any instruments including Gazettal’s of Mr Tongayu’s reappointment which purports to reappoint him as the Registrar of Companies and Chairman of Securities Commission of Papua New Guinea is without the Ministers consent and authorization. An enquiry made with the Office of the First Legislative Counsel also confirms the Minister’s stance and position on the matter.

The Minister also understands that this matter is currently before the National Court of Justice in Waigani for determination and this notice does not in any way or terms undermine the Courts authority to deliberate on the matter. Unless Mr Tongayu produces documents from the Court reinstating him in the above Offices, his reappointment as the Registrar of Companies and as the Chairman of the Securities Commission of Papua New Guinea are void and of no effect. Any documents purporting to reappoint him are also void and of no effect.

In light of the above, the Minister has now laid a formal complaint with the Police to invite Mr. Alex Tongayu to produce the Instruments reappointing him to verify proof of his reappointment. Should he fail to provide such documents, he will be charged accordingly under the relevant laws of Papua New Guinea for occupying a Public Office under false pretence.

Authorized by:

Hon Richard Maru, Bus Tech, MBA, OBE, MP
Minister for Trade Commerce and Industry

CONSIDERATION
MADE A FALSE DOCUMENT
Exhibits P1 and P2


  1. Given the manner in which the State has conducted its case it is necessary to make clear my finding on Exhibits P1 and P2.
  2. Detective First Constable Waira gave evidence, which I accept, that he obtained Exhibits P1 and P2 from the GPO.
  3. Rogerlyn Tapaua identified Exhibits P1 and P2 as the documents submitted to her by Mark Timea, in the company of two other officers from the IPA, at the GPO on 7 June 2017. She described the documents she received as “scanned copies” and not originals. In cross-examination she referred to them as being “scanned or like photocopies”. In response to the suggestion that she couldn’t be sure if the instruments contained signatures in black ink she said “it was more like a photocopy”. She said that originals had subsequently been submitted, and were with Ms Lenturut. It is clear from her evidence, however, that she does not know who submitted the originals and that none were submitted to her, only that she is aware that Ms Lenturut holds the documents.
  4. The Government Printer, Christine Lenturut, gave evidence that Exhibits P1 and P2 are copies of the documents she holds on file as the documents actually submitted to the GPO on 7 June 2017. Critically, the documents she holds on file are in the same form as Exhibits P1 and P2 and do not contain original signatures.
  5. The effect of this evidence is that Exhibits P1 and P2 are copies of the instruments submitted to Rogerlyn Tapaua at the GPO for gazettal on 7 June 2017 by Mark Timea. Furthermore, that the instruments submitted on that day did not contain original signatures in ink.
  6. I reject the submission that either Ms Tapaua or Ms Lenturut was deliberately lying in an effort to incriminate the accused and protect their job. Ms Tapaua was open about the fact that she accepted documents that were copies and not originals. Ms Lenturut was on maternity leave at the relevant time. She agreed under cross-examination that the standard policy of the GPO is not to issue gazette notices on photocopies but she also explained that that there is an understanding that when it comes to central agencies, and other State authorities with whom the GPO has an ongoing relationship, the GPO will proceed to typeset the document on the basis of a copy if the matter is urgent but will not publish until an original is presented. It also appears from her evidence, and that of Ms Tapaua, however, that this practice is not always adhered to either. As Ms Lenturut explained, it had been necessary for her to reiterate the position with staff during her tenure. Furthermore, I accept her evidence that she wrote to Ms Tapaua upon becoming aware of what had happened in this case. Ms Lenturut did not attempt to alter her evidence when told in cross-examination that Ms Tapaua said that an original was subsequently submitted.
  7. It must be said that in a case of alleged forgery one would expect the State to produce the original documents. Certainly, it was not appropriate for the State to attempt to produce the documents held by Ms Lenturut whilst she was on the stand and without prior notice to the defence. The defence was given an opportunity to view the documents, and additional time to consider them if sought, but it declined to do so. Ultimately, it does not change my finding that Exhibits P1 and P2 are copies of the documents lodged on 7 June 2017 and that the documents lodged did not contain original signatures in ink.
  8. Furthermore, it is also clear that those same documents were the ones provided by the accused to Mark Timea. By the accused’s own admission he gave the instruments of appointment to Mr Timea in a sealed envelope. On the evidence of Mr Timea, Mr Joshua and Mr Ambulu, none of which was challenged, they went straight to the GPO, where the documents were lodged.
  9. I note here that the State did not make clear whether or not Mr Timea, Mr Joshua or Mr Ambulu were given immunity in return for their testimony. This should have been made clear, given the evidence of Constable Waira, and the fact that all three were dismissed from the IPA in relation to this matter. No submissions were made about this issue by either party. Having considered the matter, it is my view that it does not affect the weight of their evidence having regard to the fact that none of it was challenged by the accused, and it is consistent with his own evidence.

How Made


  1. The “documents” in this case include both the writing on the body of the instruments purporting to appoint the accused to the respective positions and the purported signatures of Minister Maru. As above, “document” includes the paper “that is marked with any letters or marks denoting words, or with any other signs capable of conveying a definite meaning to persons conversant with them”: s 459(1)(b)(ii) of the Criminal Code. The text of Exhibits P1 and P2 are clearly computer generated.
  2. Whilst not appearing to dispute that the instruments contain scanned signatures, the defence submits that the State has not proven how the documents were made. In particular, it submits that the forensic officer, Chief Sergeant Rayabrum, failed to explain how a mark can be transferred from one document to another using a computer. Furthermore, that in his police statement, D16, he failed to state that he examined the documents under a microscope or measured and compared the signatures on P1 and P2. It was put that as in Yagari v The State (2018) SC1691 his evidence in this case was “amateurish”. He failed to obtain other samples of the complainant’s signatures for comparison. His evidence was tainted and biased, and his demeanour was defensive.
  3. I don’t accept that C/S Rayabrum’s evidence was tainted by a prior inconsistent statement. In Balbal v The State (2007) SC860 the Supreme Court said that “questions of inconsistency do not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. Thus, in our view, a prior statement that omits other evidence but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement”.
  4. It is the case that his statement failed to set out the process of his examination. It also failed to set out what he was asked to give an opinion about, other than to examine the documents. It should have done both of those things but that does not make his statement inconsistent with his evidence. His evidence explained the conclusion that he expressed in his statement that the signatures on P1 and P2 displayed: “all the characteristics of scanning and transferring or electronic transfer of signature from one document to another and also indicate strong evidence of being replicas”.
  5. Nor do I accept that his demeanour was defensive whilst giving evidence. He did not become argumentative or defensive, he simply maintained that he did conduct the examinations he testified to in evidence in chief.
  6. It should also be noted that the criticism in Yagari was that “the circumstances in which he was asked to give his opinion – comparing two bundles of documents, one marked “genuine” and another marked “forged”, was “unsatisfactory and amateurish”, i.e. the outcome of his examination should not have been suggested to him. In this case the opposite appears to have occurred and he was given very little information about the purpose of the examination.
  7. It is the case that his evidence lacked detail, both as to the process of examination, including measurements taken, and his other observations. It would also have been useful for the State to lead evidence through this witness as to the potential ways in which a signature might be placed on a document by “scanning” or “electronic transfer”. The fact this witness did not set that out does not make him “clearly biased”.
  8. I accept his evidence that the signatures have been placed on the documents by electronic means. The most obvious of these is via electronic signature. Surely, in the year 2021 the Court is permitted to take judicial notice of the fact that use of such technology is fairly common place. It doesn’t require any great computer skills and is fairly standard in many organisations. Nevertheless, there was no evidence about that particular method. Nor was there any evidence about how the signatures might otherwise have been placed on the document through copying, scanning or other electronic means. Nor, however, is it necessary for me to say definitively how the signatures were placed on the documents.
  9. Although expert evidence is not essential for a tribunal of fact to come to a conclusion on a comparison of disputed handwriting, a judge sitting alone in a criminal trial must warn himself of the dangers involved in proceeding when unassisted by expert testimony: The State v Baine [1990] PNGLR 1 applying O’Sullivan v The Queen (1969) 53 Cr App R 274 and R v Hobart Magalu [1974] PNGLR 188.
  10. Here I am not unassisted by expert testimony. I accept Chief Sergeant Rayabrum’s evidence that he measured the signatures and examined them under a microscope and that they indicate strong evidence of being replicas. Nevertheless, I caution myself before making my own assessment of the signatures.
  11. Having done so, it is clear to me on the face of the documents that the signatures in P1 and P2 are replicas of each other. I don’t need a microscope or a ruler to see that. If the two signatures are placed over one another they line up exactly. Not only are the signatures identical in shape and form but if one compares where the signatures line up against the signature line, and the typed text of the name and title of the Minister above which they sit in each document, they too match exactly. There are no variations between the signatures either in the way they are written or where they sit above the signature line in each document. I accept C/S Rayabrum’s evidence, and it follows as a matter of common sense, that one would expect there to be some variation between the signatures if they were handwritten by the same person. The signatures on P1 and P2 are identical.
  12. As such, it also follows as a matter of common sense that at least one, if not both signatures, have been placed on the instruments by electronic means. For the reasons below, I further find that both signatures have been placed on the instruments by electronic means, i.e. neither is a copy of an original signature by Mr Maru on the other instrument. How that was done precisely, I cannot say but it does not change my finding that that has happened and the documents have been made. The signatures are there. They speak for themselves.

False Document


  1. I accept the evidence of Mr Maru that he neither made nor authorised the making of the instruments. My assessment of his evidence is set out in further detail below.
  2. In reaching this conclusion I have taken into account the fact that Mr Maru was frustrated by what he regarded as a failure on the part of the accused to comply with his request for information and advice regarding KPL. The relationship had deteriorated to such an extent that he had removed the accused from the position of Acting Chairman of the Securities Commission in October 2016.
  3. On 9 November 2016 Mr Maru advised the accused that he had referred him to police for criminal investigation in relation to his failure to produce evidence establishing legal ownership on the part of KPL.
  4. In addition, Mr Maru removed the accused from his position as Registrar of Companies pursuant to the NEC decision in February 2017. The evidence of the accused regarding Mr Maru’s role at the meeting is hearsay. There were several agency heads who also had their positions revoked or suspended in relation to the same matter. Even if Mr Maru did recommend removing the accused at that meeting, for which there is no evidence, and which was not put to him, it does not alter the fact that the accused had been removed from the position by Mr Maru.
  5. Since then the relationship had deteriorated further such that the accused had brought court proceedings challenging Mr Maru’s decision to revoke both of his appointments, and informed Mr Maru that he intended to refer him to the police for extortion, blackmail and official corruption, and to the Ombudsman Commission for misconduct, and intended to bring defamation proceedings against him.
  6. The above facts make it highly unlikely that anyone in the position of Mr Maru would reappoint the accused to either position, in an acting capacity, or permanently as provided by the instruments.
  7. I also accept that Mr Maru was campaigning in Wewak at the relevant time, just a few weeks out from National Elections. He was not challenged about this in cross-examination and I take judicial notice of the fact that National Elections were held between 24 June and 8 July 2017.
  8. It is also significant here that the documents submitted to the GPO on 7 June 2017 contain replica signatures, inserted by electronic means, and not original signatures.
  9. In addition, Mr Maru revoked the appointments on 19 July 2017, not long after they were made and after he returned to Port Moresby.
  10. Furthermore, I accept the evidence of Mr Maru, Johnny Bogambari, First Legislative Counsel, and Clarence Hoot, the Managing Director of IPA, that instruments from Mr Maru’s Ministerial office, and from Ministerial offices generally, were usually prepared by the Office of Legislative Counsel at the Minister’s request.
  11. I further accept the evidence of Mr Bogambari that his office did not prepare either P1 or P2, and had no record of them.
  12. Mr Bogambari gave his brief evidence in a very direct and impressive manner. There is no reason to doubt his evidence. I reject the defence submission that he is lying when he says that instruments normally come from his office. I also reject the defence submission that the fact that correspondence from his office, in particular Exhibit P6, advising the Minister’s office that his office was not involved and had no record of the subject instruments of appointment, is suspicious because it does not carry a letterhead. As he explained, the original is issued on letterhead and copies of correspondence are kept on file without letterhead. There is nothing suspicious about that practice.
  13. I further accept the evidence of Mr Hoot, the Managing Director of the IPA, that he was not consulted in relation to the re-appointment of the accused as he would normally be. I deal in more detail with Mr Hoot’s evidence below.
  14. I further accept the evidence of Mr Hoot and Ms Ungaia that in the normal course, instruments of appointment which are ready for publication are sent to the IPA Managing Director where a purchase order is raised for this purpose. I accept that it might not always happen that way but it makes sense that that would be the normal process.
  15. In addition, I accept their evidence, which is not in dispute, that a purchase order was not issued by the IPA for the purpose of publishing the instruments of appointment on 7 June 2017.

Defence submissions


  1. Defence counsel submits that Mr Maru’s anger towards the accused for not following his directions in relation to KPL affects his credibility as a witness of truth. This was demonstrated by his refusal to accept the independent expert advice regarding KPL from NKA Chartered Accountants and the IPA Board, and by his decision to terminate the accused “on the spot” despite the briefs provided by him in good faith. Mr Maru was motivated to frame the accused by the court proceedings challenging his revocation of the accused’s position as Chairman of the Securities Commission. Mr Maru’s hatred of the accused was further demonstrated by the fact that he said in evidence that he would do anything in his power to make sure the accused does not hold a position of trust again. It is suspicious that Mr Maru says that he does not know the result of judicial review proceedings OS777 of 2016, and that he was still interfering in affairs of the Ministry of Trade and Commerce in 2018. He wrote to the police in May 2018 following the decision in OS777 of 2016 in an effort to stop the accused’s appointment to office.
  2. Mr Maru impressed me as a witness of truth. He gave his evidence in a direct manner without hesitation. I recall his response to the suggestion that he had framed the accused for forging instruments P1 and P2. Whilst demeanour is not the only consideration, on my assessment his reaction was one of genuine surprise and affront. The proposition was put to him early during cross-examination and he did not attempt to resile from his statements regarding the accused or otherwise mollify his evidence thereafter.
  3. In making my finding I have taken into account that Mr Maru and the accused were clearly at odds over KPL. Mr Maru was frustrated that he was not provided with the contract of sale or details of the purchase of the property by the new owners. On the face of the material before me he was not provided with that information. It also appears that he was frustrated by the accused’s refusal to provide the draft NEC submission recommending transfer of the company to the State. Further, that he revoked the accused’s appointment as Acting Chairman of the Securities Commission as a result of those frustrations, and reported him to the police on the basis that the change in ownership of KPL was suspicious. I have taken into account that the National Court found that the revocation was unlawful. I have also taken into account that both Mr Maru and the accused repeatedly stated both in evidence and in their correspondence that they were acting in accordance with their respective duties to protect the best interests of the State. Ultimately, it is not for me to determine the rights or wrongs of those views. The fact that Mr Maru holds a strong opinion about the accused, or that the Court found that he had wrongfully terminated the accused does not mean that he is driven by hatred of the accused. Nor does the fact that he maintains his view despite the Board’s opinion on the matter. Again, Mr Maru maintained that the Board had not been provided with the purchase materials. As for NKA Chartered Accountants, it is misleading to suggest that they provided independent expert advice. As made clear at the beginning of their letter, they “act on and on behalf of” KPL and its new owner, in respect of whom Mr Maru was making the enquiries.
  4. According to my notes, Mr Maru did not say in evidence that he “would do anything in his power” to make sure the accused does not hold a position of trust again. He said that he never wanted the accused to hold the position of Chairman of the Securities Commission, or any other position of trust again.
  5. I have taken into account the defence submission that it is suspicious that Mr Maru says he was not aware of the outcome of the court proceedings. I have also taken into account, however, that he was appointed to a new portfolio following the elections, and that he made it clear that if he had known he would have appealed against the decision. Again, Mr Maru was very open about his opinion of the accused.
  6. I have further taken into account the fact that Mr Maru wrote to the police in May 2018 to follow up his complaint against the accused. The initial complaint was laid in 2017 after he returned to revoke the appointment under G441. He says he was following up because his signature had been forged. It was not unreasonable for him to follow up with police in those circumstances.
  7. The defence submits that there are two “glaring issues” that suggest the involvement of Mr Maru and his office in the creation of Exhibits P1 and P2. The submissions relate to Exhibit D15 and Exhibit P3.
  8. It submits that according to Mr Bogambari’s evidence, Exhibit D15 came from Chris Ningis, the Minister’s First Secretary, and that although it contains the same content and signature as Exhibit P1 it is in a different form and therefore cannot be a photocopy and must have been computer generated by the Minister’s office.
  9. Whilst not articulated in these terms by defence counsel, I have considered the principles governing the prosecution’s obligation to call all material witnesses: see The State v Joan Kissip (2020) N8184, at [97] to [104] and The State v Felix Kange (2020) N8488 at [48] et seq.
  10. In summary, the prosecution has a duty to call all material witnesses, both favourable and unfavourable. It has a discretion whether to call any particular witness but the discretion must be exercised in the interests of justice so as to promote a fair trial. Where the prosecution fails to call a witness without providing a reasonable explanation the Court may if it considers that the prosecution has not exercised its discretion fairly invite the prosecution to reconsider its position but is not obliged to do so. It may, in exceptional circumstances, call the witness itself, or make an adverse finding that the witness should have been called. As a general rule, a trial judge should not infer that the evidence of those who were not called would not have assisted the prosecution. A judge should not speculate about what the person might have said. Exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.
  11. Mr Ningis was not listed on the indictment and was not called by the State. The calling of Mr Ningis was not raised by the defence during the trial itself. It also appears that the State was taken by surprise by the accused’s defence at trial. The accused had, quite properly, exercised his right to remain silent at interview and whilst the pre-trial review statement pointed to a politically motivated “witch hunt”, it did not set out his defence that he collected the instruments from the Minister’s office on 7 June 2017. I would have expected the Minister’s First Secretary to have given a statement about events at the relevant time, particularly as it was the State’s case that Mr Maru was not in Port Moresby. Whilst the State could have been more thorough in the conduct of its case, however, I am not satisfied that it acted unfairly by not calling Mr Ningis. Accordingly, I direct myself that I will not infer that his evidence would not have assisted the prosecution. Nor will I speculate about what he might have said: Dyers v R [2002] HCA 45; (2002) 210 CLR 285 considering Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
  12. Furthermore, I don’t agree with the defence submission that Exhibit D15 is a different document from Exhibit P1 and therefore must be a computer generated document and not merely a further copy of P1. Whilst I warn myself that I am unassisted by expert opinion, it is clear to me that whilst D15 is darker than P1, it is simply that, a darker copy overall. In particular, everywhere that is bolded on P1 also appears bolded on D15, it is just that the entirety of D15 is darker. It is a dark photocopy. This is also evident from the fact that the text appears at an angle and a mark appearing on the right-hand side of the document is consistent with the document being a photocopy of Exhibit P1. Nevertheless, without Mr Ningis’ evidence it is unclear how he came to obtain the copy. I will return to the possibility that Mr Ningis, or someone else in the Minister’s office, created Exhibit P1 below.
  13. I have also considered the defence submission that Exhibit P3, the public notice issued on the Minister’s letterhead and signed by him is dated 6 June 2017 and thus shows that Mr Maru was drafting a public statement about the false instruments a day before they were submitted to the GPO and therefore that he must have known about them.
  14. The State submits that the date is a typographical error and the correct date is closer to that reflected in the public notice itself which appeared in the Post-Courier on 26 July 2017. I agree. As above, I accept the evidence of Mr Maru, which was not challenged, that he was campaigning in Wewak on 6 and 7 June 2017, and that he acted following his return to Port Moresby. My finding is also consistent with the fact that the gazettal revoking the accused’s appointment as Chairman of the Securities Commission was published on 19 July 2017, Exhibit D14, and the notice, Exhibit P3, appeared in the paper after that, on 26 July 2017. In addition, the notice refers to the Minister having laid a complaint with police. On the evidence the complaint was made in July 2017.
  15. It is also necessary here to consider the evidence of Mr Hoot. Despite the defence submission that the only relevant part of his evidence was that the Managing Director of the IPA is usually notified before the Minister appoints the Chairman of the Securities Commission and that he came to court to deliberately lie about that, Mr Hoot was cross-examined at length, indeed more than any other witness, including Mr Maru. It was submitted that he was pursuing Mr Maru’s agenda, that he lied about not knowing when the accused was arrested and that he was “racing” to have the accused arrested before the appointment committee could appoint him as Chairman of the Securities Commission in October 2018. He was lying when he said he did not know if the accused was currently Acting Chairman of the Securities Commission. He was biased in favour of Mr Maru’s office when he did not object to receiving correspondence from his First Secretary, Mr Ningis, but complained about Minister’s Mori’s secretary writing to him directly. His bias against the accused was further demonstrated by his memo to Minister Mori recommending against the re-appointment of the accused and by his letter to the police in 2018 urging them to complete their investigation into the accused.
  16. The key part of Mr Hoot’s evidence was that: “The Minister would exercise his powers under the legislation, but in the course of getting the appointment formalized the Minister at some stage consults the Managing Director, and once all the paper work is prepared, one would expect the office of the Managing Director as the administrative head to undertake and complete the process of appointment. In that instance any document would come to the Managing Director who would then consult the Corporate Services Division to raise the necessary payments and seek appropriate staff to take any documents and the payments to fulfil the process.” On the face of it Mr Hoot’s evidence makes complete sense. Again under cross-examination his evidence on this point was entirely in keeping with common sense: “The Chairman is administratively answerable to the Managing Director and one would expect the Managing Director to be brought to the appointment process at some stage.”
  17. As to the suggestion that he was biased because he was happy to receive advice from, and write to, Minister Maru’s First Secretary about G441, I accept his evidence that he had received a prior call from the Minister in this regard and that it was different because he was under the impression that Mr Ningis was receiving instructions from the Minister who was at the time on the campaign trail. Again, this makes sense.
  18. The defence also submitted that Mr Hoot lied about not knowing the date of the accused’s arrest on 8 November 2018. I accept that he could not recall.
  19. It is somewhat surprising that he was unable to confirm whether the accused was currently the Acting Chairman of the Securities Commission but he explained that he could not say when the selection committee had met and had not received a copy of the appointing instrument, although he admitted he may have missed it. It is also unclear to me whether the accused is currently acting in the position pending these proceedings. I accept his evidence in the circumstances.
  20. It is the case that Mr Hoot wrote to Minister Mori in length in April 2018 asking him to reconsider his decision to revoke the appointment of Christopher Hnanguie and appoint the accused. It sets out in detail various opinions regarding the effect of National Court orders having regard to changes in legislation and subsequent appointments, and ultimately recommends that an appeal is brought and conducted by an independent law firm in respect of OS(JR) No 777 of 2016. It refers to independent legal advice regarding the accused’s termination. It refers to the IPA’s investigation and its finding that the accused is implicated in the “fraudulent” gazette. It recommends the appointment of Christopher Hnanguie following good performance. It is also the case that Mr Hoot wrote to police in July 2018 calling on them to pursue the accused and three IPA officers for forgery, and that he copied that to very senior political and police figures. It is clear that by that stage that Mr Hoot had formed a view about the accused’s involvement following the IPA investigation and that he was urging the police to take action against the accused rather than simply complete the investigation.
  21. My overwhelming impression of Mr Hoot, having heard and observed him under lengthy cross-examination, however, is that he was a senior public official who was dealing with a difficult and ongoing situation of uncertainty as to the Chairmanship of the Securities Commission, which I accept made the situation in the IPA very tense, and he was trying to resolve it, in light of the investigation’s findings as to the role of the accused, and having obtained legal advice.
  22. Moreover, it is not clear what the defence is suggesting about Mr Hoot with respect to this case, other than the general proposition, which was denied by Mr Hoot, that he had worked with Mr Maru and his associates to frame the accused. It was not suggested to Mr Maru that Mr Hoot was somehow involved in creating Exhibit P1 and P2.
  23. As to the suggestion that Mr Hoot was in a conspiracy with Mr Maru to appoint Mr Hnanguie in place of the accused, Mr Hoot did not even have Mr Hnanguie’s contact details in July 2017: D17.
  24. Nor are the submissions borne out by Mr Hoot’s conduct. According to the accused’s own letter of 12 October 2017, D19, Mr Hoot and the IPA Board was supportive of him up to that point, including through the provision of legal support. Even at that stage Mr Hoot and the Board agreed to a three-week extension. The memo to Minister Mori and the letter to police in April and July 2018, respectively, are well after the events of June 2017.
  25. Moreover, Mr Hoot’s evidence, which is supported by Ms Unagi, is simply that in the normal course following an appointment by the Minister, he, as the Managing Director of the IPA, would be tasked with the administrative arrangements, including publishing the instrument through the GPO, and he wasn’t in this case. It was not suggested to Mr Maru that he had called on Mr Hoot to lie on his behalf in these proceedings. And, as I have said I accept Mr Hoot’s evidence on this point, as a matter of common sense.
  26. The defence further submitted that the lengths Mr Maru and his associates would go were demonstrated by the allegations against the accused that he forged Minister Mori’s signature, which allegations were publicly refuted by the Minister himself. DC Waira explained that the complainant in that matter was not Minister Maru but Chris Hnanguie and that the charges were withdrawn on the advice of the OPP. Mr Hnanguie was listed as a witness on the indictment. He was not called by the State but neither did the defence call for his production.
  27. The accused’s assertions both in D19 in October 2017, and in oral evidence, that he was told by “well-placed sources” within the Minister’s circle that his reappointment was a set up by the Minister frustrated with his advice in relation to KPL and determined to do anything to remove him from the IPA as the Chairman and Registrar, and eventually from the public service, is hearsay.
  28. It is the case that the State did not lead expert evidence to establish whether or not the signatures on Exhibit P1 and P2 were in fact copies of signatures originally made by Minister Maru. That is the examiner was not provided with sample signatures proven to be by Minister Maru to be compared with the questioned signatures. That would have been useful but it was not essential in this case, unlike Yagari’s case where the person in whose name the signatures were purportedly made was deceased. Ultimately the question is whether the evidence in this case is sufficient to establish beyond reasonable doubt that the documents are false such that Mr Maru did not authorise the making of the documents, nor sign or authorise the use of his signature on the documents.
  29. As above I accept Mr Maru’s evidence that he neither authorised nor made the instruments himself. His evidence is corroborated by the other evidence I have outlined above.
  30. The State’s evidence has also excluded any rational possibility that Mr Maru executed original versions of the instruments himself with a view to framing the accused, then arranged for his staff to call the accused to collect the instruments, then went to the GPO and retrieved the original documents himself, or instructed his staff or associates to do so, and replaced them with Exhibits P1 and P2 containing scanned signatures, at some point, in a deceitful and complicated scheme, involving his own staff and persons at other offices, and maintained their complicity over several years including bringing them to court to give false evidence. It is implausible.
  31. I also reject the defence submission it makes by reference to Yagari, that a person who wanted to forge a document would make “a better attempt” than a photocopy or a scanned document, and that it goes against common sense and logic that a person attempting to forge a document would use a copy because there is “obviously something wrong with the document”. Again, this case is different from Yagari. In that case the disputed signature was not a very good attempt. Here Mr Maru has said that the signature appears to be his, or is a very good imitation of his, but he knows for a fact that he never executed the disputed instruments.
  32. Furthermore, contrary to the defence submission, I do consider that a person attempting to forge a document would use a scanned image of the purported maker’s signature, or one very similar to it. It is an effective way of placing a signature on a document. The defence submission is that the purpose of a forgery is for it to go unnoticed and be acted upon as the truth and that using a copy or a scanned document is obviously suspicious. I don’t agree. The fact that a document is a scanned or copy document is not enough of itself to raise suspicion. That is demonstrated by the fact that there is a policy in place at the GPO that copy instruments will be accepted on an urgent basis, and indeed P1 and P2 did go unnoticed by the GPO.
  33. In conclusion, Exhibit P1 and P2 are documents for the purposes of s459(1) of the Criminal Code. They are paper which is marked with letters or marks denoting words, and include “writing” or signatures.
  34. I am satisfied beyond reasonable doubt having regard to the evidence of Mr Maru, corroborated by the surrounding circumstances, that Exhibits P1 and P2 are false for the purposes of s 459(2)(b)(i) because both the content and the signature in each case purports to be made by Mr Maru when he neither made nor authorised the making of the documents. The State’s evidence has excluded any other rational inference.

BY THE ACCUSED


  1. Having heard and observed the accused in the witness box I am unable to accept him as a witness of truth.
  2. In particular, I am unable to accept his evidence that he collected the envelope containing the instruments from the Minister’s office on the morning of 7 June 2017.
  3. The accused was cross-examined about a memo given by him to the IPA in support of Mark Timea’s response to the charge served on him by the IPA, and annexed to Exhibit P17. The State did not tender the annexure with Exhibit P17 as part of their case. Defence counsel objected to the tender of the document through the accused under cross-examination on the basis that it amounted to the State splitting its case. The accused did not deny that he made the statement and the tender was not pressed.
  4. It is well established that as a general principle the evidence for the prosecution in a criminal trial must be presented before an accused is called upon to answer. There are exceptions to this in which case a trial judge may allow the prosecution to lead evidence in rebuttal if the particular circumstances allow, for instance where the accused raises character or raises fresh factual issues the prosecution could not have anticipated: Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365.
  5. If the prosecution seeks to rely on an admission by an accused then it should tender it as part of its case, subject to it being admissible. It is also the case that it is improper to adduce evidence of a prior inconsistent statement with a view to inducing a finder of fact to rely on the statement as evidence of the facts in issue in the case: R v Hall [1986] 1 Qd R 462.
  6. In this case, however, the State was not seeking to rely on the prior statement as evidence of its truth but as a prior inconsistent statement for the purpose of discrediting the accused by demonstrating that he is not worthy of belief.
  7. It is unclear whether the statement was admissible as part of the prosecution case as it appears to be an exculpatory and not an inculpatory statement on the part of the accused, but I cannot rule on this definitively as it was not argued before me, and I have not seen the document.
  8. It does appear, however, that the document was in the police brief and it is also clear that the accused was aware of the document before the trial. A witness may be cross-examined as to previous statements made by him in writing or reduced to writing relating to the subject matter of the proceedings without the writing being shown to him: s 23 of the Evidence Act. The accused did not deny making the statement when asked about it. In my view it was permissible for the State to cross-examine him about the statement with a view to challenging his credibility.
  9. The statement was to the effect that: “I advise that Mr Timea was not involved in the matter in any way. An envelope was floating somewhere at a carpark at Waigani and was picked up to be couriered to the office. His honest mistake was paying for the publication. I am sure he thought he was doing it for me and the office. This is an honest mistake any loyal staff who do for his or her boss.”
  10. The State has submitted that the statement that the instruments came from a carpark in Waigani is inconsistent with the accused’s evidence that they came from the Minister’s office. The accused says that it is a slang term used in the commercial world to refer to the Minister’s office in Waigani. At best the statement is equivocal.
  11. The critical discrepancy in my view, however, is that in his earlier statement the accused distanced himself from the instruments of appointment altogether. He effectively said that Mr Timea acted on his own, that it was a mistake on Mr Timea’s part to take the documents for publication but that he was doing so as a loyal employee. That is inconsistent with the evidence of Mr Timea, Mr Ambulu, Mr Joshua and the accused himself that it was he who gave the documents to Mr Timea for publication.
  12. In addition, there are other aspects of the accused’s evidence I am unable to accept. I find his testimony that he did not realise in June 2017 that the Minister was angry with him or that he would not have reappointed him, given the extent to which the relationship had deteriorated, disingenuous. The Minister had expressed his frustration with the accused in writing. He had referred the accused to police and removed him from office. They were locked in court proceedings and the accused had indicated his intention to report Mr Maru to the police and the Ombudsman Commission, and to commence defamation proceedings.
  13. For similar reasons, I do not accept his evidence that it was a “normal thing” for him to be receiving a call from the Minister’s office in June 2017.
  14. Nor do I accept his evidence that there was no reason for him to want reappointment to the positions because they did not provide any remuneration in addition to his Director’s salary. As he later said, those positions reflected his life’s work.
  15. Furthermore, despite explaining at length that he had a K4 million budget that allowed him to recover the costs of publication, and that was why he gave his own money to Mr Timea for publication, the accused’s explanation that as the money was Mr Joshua’s “he could not confirm, recall or deny” recovering the cost of the publication makes no sense. The fact that Mr Joshua had used his own card, and then taken the cash provided by the accused to cover the costs, did not mean that the fees could not have been recovered by the accused through the IPA if they were legitimately incurred.
  16. In addition, for the reasons stated above, the accused’s evidence that the instruments he collected from the Minister’s office contained original signatures in black ink is inconsistent with my findings that the signatures on Exhibits P1 and P2 are identical and have been inserted by electronic means. As I have found, Exhibit P1 and P2 were the documents given by the accused to Mr Timea and lodged with the GPO on 7 June 2017.
  17. Having regard to the above, I am unable to accept the accused as a witness of truth except where his evidence is corroborated by other evidence. I make it clear, however, that the accused gave evidence although he was not obliged to do so. In doing so he did not take on any obligation to prove anything in this trial. The question remains whether or not the State has established beyond reasonable doubt that it was the accused who made the false documents.
  18. In determining this issue, I have taken into consideration the defence submission that the State did not conduct a search of the accused’s home or office computer to prove that he was the creator of Exhibit P1 and P2.
  19. The defence also submits that Gretel Ungaia is a tainted witness, who deliberately came to court to frame the accused. I don’t agree. Ms Ungaia gave her evidence in a forthright manner. She readily agreed that she believed that it was the accused who had created a replica of her folder on the IPA’s shared drive the day after his position as Acting Chairman of the Securities Commission was revoked. She also readily agreed, however, that 5 other people also had access to her folder, namely Vanessa Vina, Kit Kipma, Solomon Silion, Andy Ambulu and James Joshua. Furthermore, she readily agreed that the style of the signature on the false instruments was different from two of the three submissions signed by the Minister, namely for the Central Depository Act 2015 and the Capital Markets Act 2015. She wasn’t shown the signature for the Securities Commission Act 2015 but I won’t speculate about that. She readily agreed that she did not see the accused access the folder. I do not accept that her evidence was untruthful but it is of limited probative value.
  20. I have also taken into consideration the evidence of the accused and the submissions of counsel regarding the accused’s position and the likelihood that he would forge the two instruments. I agree with the defence submissions that it appears to be out of character. I also agree that in general terms it seems unlikely that a person in the position of the accused, given his education and experience, and having regard to the dedication he had demonstrated over many years, and the success and seniority he has achieved in various roles, would put all of that in jeopardy by forging documents in the name of the Minister. This is particularly so given that there was a risk that any forgery would eventually be discovered given the public nature of the announcements and the positions themselves.
  21. Ultimately, however, the State’s evidence excludes any rational inference that it was anyone other than the accused who forged the instruments of appointment.
  22. I make it clear that I don’t accept the accused’s evidence that he collected any instruments from the Minister’s office on 7 June 2017, nor that any such instruments contained original signatures.
  23. Despite this, I have considered the possibility that someone acting of their own volition - for instance, someone at the Minister’s office, such as Mr Ningis, might have fabricated the instruments to frame the accused out of some misplaced sense of loyalty to the Minister; or someone loyal to the accused and wanting him to be reinstated might have made the documents - and provided them to the accused, and that he was mistaken about the fact that they did not contain original signatures.
  24. The evidence shows that Mr Maru and the accused worked together for about five years. It is reasonable to infer that the accused had access to the Minister’s signature during that period. According to the accused he was sufficiently familiar with it to know that the Minister usually signed in black ink, albeit that this was not put to Mr Maru in cross-examination.
  25. On 20 October 2016 Minister Maru revoked the accused’s position as Acting Chairman of the Securities Commission following his dissatisfaction with the accused’s response over KPL. On 9 November 2016 Minister Maru wrote to the accused advising that he had referred the accused to the police over the matter. On 18 November 2016 the accused wrote to Minister Maru advising that he had commenced proceedings in the National Court challenging the revocation of his appointment as Acting Chairman of the Securities Commission. Further, that he had referred him to the police for extortion, black mail and official corruption, and to the Ombudsman Commission, and would be seeking damages in defamation. On or about 7 March 2017 Minister Maru revoked the accused’s position as Registrar of Companies pursuant to an NEC decision. At some stage thereafter the accused also commenced proceedings against Minister Maru in respect of that decision. The accused retained his substantive position as Director, Business Registration at the Investment Promotion Authority (IPA).
  26. On the morning of 7 June 2017, the accused provided Exhibits P1 and P2 to Mark Timea, Scanning Officer, in a sealed envelope, in the presence of James Joshua, Senior Surveillance Officer, and Andy Ambulu, Lawyer, in the car park of the IPA. The accused told Mr Timea that the envelope contained instruments appointing him Chairman of the Securities Commission and Registrar of Companies. He told Mr Timea to take the documents to the GPO for publication, and that there was K500 cash in the envelope for that purpose. It was clear from what the accused told Mr Timea that publication was urgent.
  27. The three men drove to the GPO and submitted Exhibit P1 and P2 to Rogerlyn Tapaua, Senior Publishing Officer. One of the officers told her that publication was urgent. The GPO does not accept cash. Mr Joshua paid the publication fees using his own card.
  28. The instruments lodged with the IPO did not contain original signatures in ink but identical signatures inserted into the documents by electronic means. The instruments of appointment were not made or authorised by Minister Maru. Mr Maru was in Wewak campaigning in the lead up to the National Elections. The instruments were not prepared by the Office of Legislative Counsel in the normal course. The Managing Director of the IPA was not informed of the appointments, nor asked to undertake and complete the process, in the usual course. Arrangements were not made for the IPA to publish the documents in the normal course. Despite the prior revocations and the poor state of the relationship, including ongoing court proceedings, and complaints to police on both sides, the accused did not consult with Minister Maru prior to publishing the documents. Nor did the accused seek to have the instruments dealt with in the normal course through the Managing Director of the IPA. The accused did not seek reimbursement of the publication fees from the IPA.
  29. The instruments were published in G441. A week later Mr Maru’s First Secretary wrote to the First Legislative Counsel seeking copies of the instruments underpinning G441. First Legislative Counsel advised the following day that he did not hold any. On 19 July 2017 Mr Maru revoked the accused’s appointment as Chairman of the Securities Commission and appointed Chris Hnanguie. On 26 July 2017 a public notice from Mr Maru appeared in the Post Courier refuting claims that he had reappointed the accused to either position and stating that the matter had been referred to police.
  30. In conclusion having regard to the above facts and circumstances, I am satisfied beyond reasonable doubt that the accused made the false documents, Exhibits P1 and P2. There is no other rational inference. The State’s evidence has excluded any rational inference that another person made the instruments.
  31. It was the accused who provided the instruments in a sealed envelope to his staff for publication, on an urgent basis, with fees in cash for that purpose, and for which he did not seek reimbursement. In my view he did this to distance himself from the instruments by avoiding any record of his involvement. He was the only person who stood to benefit from the appointments. The Minister was out of town, campaigning for the National Election at the time. There was a possibility that Mr Maru might not be re-elected, or as happened, that he might be appointed to a different portfolio, and that the timing of the appointments, and the fact that they were purportedly made by him might go unnoticed during the election and post-election period. The accused was aware of the potential for such a possibility. In 2011 for instance, following the change of government, and associated changes in Ministerial responsibility, the accused had his position as both Registrar of Companies and Chairman of the Securities Commission revoked by the Deputy Prime Minister, before he was reinstated as Registrar of Companies just a week later by Hon. Charles Abel.

KNOWING IT TO BE FALSE AND WITH THE INTENT THAT IT MAY IN ANY WAY BE USED OR ACTED ON AS GENUINE


  1. I am satisfied beyond reasonable doubt that at the time the accused made the false instruments he knew that they were false. He knew that he was not authorised to make the instruments purporting to appoint him to the positions of Chairman of the Securities Commission and Registrar of Companies by the Minister. There is no other rational inference having regard to the accused’s intelligence and experience.
  2. I am also satisfied beyond reasonable doubt that, for the reasons outlined below, at the time the accused made the false instruments he knew that the documents may be used or acted on as genuine. There was no other reason for making them.

WITH THE INTENT THAT A PERSON, IN THE BELIEF THAT IT IS GENUINE, BE INDUCED TO DO OR REFRAIN FROM DOING ANY ACT


  1. It is well established that intention at the time of any alleged offence is a question of fact to be determined by the trial judge. It may be proven by examining the accused’s conduct prior to, at the time and subsequent to the act constituting the offence: The State v Raphael Kuandande [1994] PNGLR 512; Ikalom v State (2019) SC1888.
  2. It was the accused who gave the false documents to Mark Timea and instructed him to take them for publication. It was the accused who provided funds to pay for the publication. It was the accused who stood to benefit from the appointments.
  3. I am satisfied beyond reasonable doubt that the accused intended that a person at the GPO, in the belief that the documents were genuine, would be induced to publish the false instruments in the National Gazette. There is no other rational inference.

CONCLUSION


  1. In conclusion, I am satisfied beyond reasonable doubt that the accused is guilty of forgery contrary to s 406(1) of the Criminal Code as alleged in Counts 1 and 2 of the indictment. This is not just a rational inference but the only rational inference in all the circumstances. The evidence led by the State to prove each of the elements of the offences lead inevitably to that conclusion, such that any reasonable hypothesis consistent with the innocence of the accused has been excluded.
  2. Verdict: Guilty of two counts of forgery.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused


[1] Applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535; [1984] HCA 7.

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