N11480
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 12 OF 2022

THE STATE

V

PAULSON UNDI

WAIGANI: BERRIGAN J
10, 13, 14, 27 FEBRUARY, 10 MARCH 2023; 19 FEBRUARY 2024

CRIMINAL LAW – S 202, Criminal Code, Refusal as public officer to perform duty – Elements of offence – Employed in the Public Service – Omits or refuses to do any act – That is his duty to do by virtue of his employment – Perversely - Guilty.    

Cases cited
Attorney General of Ceylon v De Livera [1963] AC 103 
Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433
Japele v The State (2023) SC2454 
Luma v State (2022) SC2249
Lyme Regis Corporation v Henley [1834] 6 ER 1180
PLAR No. 1 of 1980 [1980] PNGLR 326; SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693
R v Bembridge [1783] 93 ER 679
Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
State v Gamato and Hetinu (2021) N9250
State v Weleck 91 A 2d 751 (1952)
State v Winne (1953) 96A 2d 63
The State v Joel Luma (2021) N8798 
The State v Yawijah (2019) N7767    

Counsel
Mr N. Needham for the State 
Mr F. Kirriwom for the accused   

DECISION ON VERDICT

1.	BERRIGAN J:  The accused, Paulson Undi, is charged with one count of refusing as a public officer to perform his duty, namely provide a report, contrary to s 202 of the Criminal Code (Ch. 262) (Criminal Code). 

ALLEGATION

2.	The accused was employed by the Auditor General’s office, Waigani. The State alleges that on 18 July 2018 police from the National Fraud and Anti-Corruption Division (NFACD) requested assistance in relation to the investigation of Nokondi Investments Limited (Nokondi), a business entity of the Eastern Highlands Provincial Government. The request was accepted, and the accused was lawfully sanctioned by the Auditor General to travel with police to Goroka for that specific purpose. The accused did travel to Goroka soon thereafter. The accused was required to report on his findings in accordance with the Terms of Reference. By December that year, the accused had not provided a report, in accordance with the Auditor General’s instructions. The accused provided a report into the books of a different entity – the Goroka District Development Authority (the GDDA). The Auditor General’s office had not sanctioned his involvement in that investigation.

3.	It is further alleged his failure to provide the report into Nokondi was perverse and unlawful considering the following circumstances:

	a)	He was duty bound to provide a report into Nokondi Investments;
	b)	He omitted to provide a report of his activities and/or findings to 		his superiors;
	c)	During the same period of time, he undertook other work, not 			sanctioned by the Auditor General’s office, his employer;
	d)	That work involved a different audit/investigation for a different 		organization, the Goroka District Development Authority;
e)	The work done for the Goroka District Development Authority was financed through a company called Optimax Forensics Advisory solutions;
	f)	The accused was the owner of Optimax.
4.	The State alleges that contrary to section 202 of the Criminal Code the accused perversely and without lawful excuse omitted to do his duty by virtue of his employment.  He had a duty to report on the Nokondi books.  He omitted to do that act, and instead took up other work through his own company.

STATE’S CASE

5.	The State called two witnesses both of whom impressed me as witnesses of truth.  

6.	I make these assessments having heard and observed the witnesses whilst giving evidence and having regard to their evidence by itself and in the context of the case as a whole, together with logic and common sense, and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173.  

7.	Mr Gordon Kega is the Auditor-General of PNG. He has been acting in the position since 2016 and his substantive appointment was confirmed in March 2021. He confirmed that the accused has been employed by the Auditor General’s Office (AGO) for many years and is a senior auditor.  

8.	There is a longstanding arrangement the subject of an MOU between the Auditor-General, the Royal Papua New Guinea Constabulary (RPNGC) and the Public Prosecutor under which police write to the Auditor-General when they seek to have a forensic auditor assist them with an investigation concerning government funds. It is the sole prerogative of the Auditor-General to assign an officer from the AGO to assist police. The officer is released temporarily to assist police for a special project or a period of time. The officer’s salary is paid by the AGO. In the event of travel, travel and accommodation is met by police. An officer directed to assist police has a duty to report to the AG through his supervisor. The officer is provided with a diary to record what they do every day. In addition to reporting on daily activities he is also required to produce a forensic audit report into the subject of the investigation to both police and the AG. 

9.	Mr Kega directed the accused to assist police with the Nokondi investigation.  He never received a forensic report for that investigation. No approval was ever sought from or given by him for the accused to assist police with the investigation into the GDDA, which approval was required. He did not agree that the arrangement constituted a secondment.

10.	Mr Kega confirmed that the AGO has a system in place for the recording and keeping of emails and identified certain correspondence, set out below.  

11.	Mr Kega was not aware that the accused was operating a business outside the AGO. 

12.	It does not appear to be in dispute that Mr Wak, the accused’s supervisor at the time, passed away a week prior to the trial. 

13.	Retired Detective Chief Superintendent Mathew Damaru was the Director of the National Fraud and Anti-Corruption Directorate (NFACD) of the RPNGC at the relevant time. He confirmed that the NFACD did seek assistance from the AGO for specific investigations from time to time. 

14.	He wrote to the AG on 26 August 2018 seeking such assistance for the Nokondi investigation. According to his letter the Eastern Highlands Province assisted with some funding. To his knowledge a report was never received by police. Police normally fund their own travel and accommodation. The AGO normally fund their own travel. Police travel is not paid through private companies. If there is insufficient funding for travel it may be sought from State agencies, provincial governments or the law and justice component of DSIP funds. 

15.	He had some recollection of being briefed on an investigation into GDDA but as far as he recalled he only wrote a letter seeking assistance from the AGO in respect of Nokondi.  

16.	The State also relies on certain facts and documents admitted by the accused pursuant to s 589, Criminal Code, which are set out below.     

DEFENCE CASE

17.	Paulson Undi gave evidence in his own defence. As an expert forensic accountant his duty is to assess the allegations, identify the documentation required and produce a forensic audit report recommending prosecution or otherwise. The report is tendered as expert evidence in any subsequent prosecution. 

18.	In the case of Nokondi he was tasked to go through a report from a private investigator engaged by the EHPG.  After a week or so the team left for Goroka. He identified five allegations for investigation and told police they needed documentary evidence from the banks and from the company itself, like financial records, including cheques, payment vouchers, contract agreements, and board resolutions.

19.	He was unable to provide a forensic report for Nokondi because there was violence that prevented them from getting any source documents. He made initial enquiries but he needed the source documents. Records were not produced and then violence transpired. There was an administrative impasse. The persons alleged to be involved in the allegations became rowdy. The office did not open for about two weeks and the private investigator and other officers were assaulted. There was no documentary evidence that he could write on. Without any evidence or documents he could not provide a report. He had to protect his integrity.

20.	He became involved in the GDDA investigation because he was already on the ground. He was verbally instructed by Chief Inspector Timothy Gitua to assist the team. He provided a forensic audit report for GDDA. Three persons were charged, two of whom were ultimately convicted by the National Court following a trial at which he gave evidence.  Charges against the third person, Bire Kimisopa, were dismissed at the District Court. 

21.	Under cross-examination the accused said that the forensic audit report cannot be shown to his immediate boss.  It only goes to police. He cannot disseminate it to anyone else. The AG is not privy to the report. That has been the arrangement for the last ten years. He can only provide an update as to the status of the investigation to the AG. He could advise the AG that he could not provide a report. 

22.	Between July and December 2018 he conducted enquiries into Nokondi but there was no evidence from which to produce a report. The investigation on the ground was halted. No further information came to hand.  

23.	He became involved in the GDDA investigation after going to Goroka because Nokondi could not proceed and there was another team on the ground. As a result of the impasse he was instructed by CI Gitua to proceed with GDDA. His understanding was that he was released to police so he followed CI Gitua’s instruction to continue with the GDDA investigation. 

24.	He worked exclusively on Nokondi for 3 to 4 weeks, July through August. He continued to work on Nokondi after he commenced the GDDA investigation until the violence when everything came to a halt and he could not proceed further. The impasse did not affect the GDDA investigation because documents were readily available. The impasse was within the Eastern Highlands Provincial Administration. He could not get the documentation because it was kept inside the administration block.

25.	His salary was paid by the AGO. The AGO did not pay for travel. He was provided with a ticket by police. He was paid one week of travel allowance for Nokondi. He tried to organise entitlements for Nokondi through police. He was not successful. The allowances were paid by the EHP Administration but sometimes they paid and sometimes they didn’t.  

26.	He was still employed by the AG and still paid by the AGO and still required to provide a daily report to the AGO. He did provide brief updates to the team leader of the police investigation from time to time. 

27.	He is the owner of Optimax. It was established in 2013. He was working for the AGO at the time he established it. He did not inform the AGO. It provides a service using his expertise - advice into company accounts and fraud prevention but not audit specifically. It was supposed to charge for services but it has never been used. He has a controlling interest and the final say on the work it undertakes. It employs one person, on a hire basis, not full time, Regan Tepi. Tepi is not paid a salary but he sometimes gives him cash as a friend. The company never had an office and never advertised. 

28.	There was no formal contract between the GDDA and Optimax. It was never formally engaged. Optimax was engaged by the GDDA when the investigation started and the GDDA wanted to provide funding and the company’s account was used for the investigation. He agreed that the company received a cheque from the GDDA for K60,500 dated 29 June 2018. But the cheque was paid to him for convenience sake. He was part of the team. The GDDA wanted to make payments to police so he suggested that Optimax handle the money for the investigation to avoid the red tape. The payments were to meet the cost of the investigation. 

29.	The GDDA knew how much money was required because of the detailed costings for accommodation, vehicle hire, air fares and other miscellaneous Optimax provided. It was planned for one month. Payments were made until December. He was involved in coming up with the costings. He was aware of the letters sent by Tepi. The K200,000 that was invoiced on 19 September 2018 was spent. He was one of the six officers who received airfares, accommodation, travel allowance and incidentals. But actual travel depended. The invoice was just a costings. The GDDA was happy with the investigation. That was the ultimate objective. In the event it was not all spent the money would be returned. That is why there were acquittals. The acquittals were lost when he lost his bag. Some of the acquittals were given, some were lost. But they were pleased with the outcome of the investigation so they did not ask for the acquittals. They kept a vehicle log for fuel acquittals. He cannot recall if they kept a vehicle log. He was keeping the GDDA updated on how much money was spent. Some costs accumulated as well. He cannot recall whether his laptop was stolen before or after the second tranche of payments. 

30.	There were tax implications associated with use of his account and he should have reported to the tax office but he did not think of it at the time.  It was not done for profit. If it had been the invoices would have been issued as consultancy fees.

31.	It was the first time in fifteen years that he had not issued a report. 

32.	All files were wiped out when his laptop was stolen, including the GDDA files. He did obtain bank statements for Nokondi and ledger documents but not original source documents. He was able to rebuild the GDDA files lost on his computer because all the information was there but he could not do so for Nokondi because the information was not there. The reports referred to in his email of 31 October were done as part of the preliminary enquiry so he asked CI Gitua to ask the lawyers if they could go ahead with the arrests. He did rebuild the report but he did not complete it. At some stage before December he had rebuilt the file that was lost three weeks before 18 October. 

33.	He was released to police and police instructed him. He never lost interest in Nokondi. The speed of the investigation was crucial to avoid tampering with evidence so when they asked him to use his account he said yes.  

34.	Gitua was aware of the involvement of Optimax in the GDDA investigation. He oversaw the whole operation. 

35.	The accused called Chief Inspector Timothy Gitua, who has been the Deputy Director of the NFACD for almost 12 years. According to his recollection there was some disruption during the deployment of police to Goroka for the Nokondi investigation. There was disruption in the Provincial Administration Office and the investigation was not completed and remains open.  The accused was on the ground and so they asked the AG for him to be involved in the GDDA investigation.  He wrote to the AG on 14 December 2018, in the normal way, formally requesting the accused’s engagement. The GDDA investigation led to two of three suspects being committed and found guilty at the National Court. The GDDA matter was different from Nokondi because of where the records were kept. GDDA records were obtained from the GDDA office, Treasury office and the banks but most of the Nokondi records were within the Provincial Administration which is where the disturbance occurred. The GDDA also had access to witnesses and records.  

36.	Under cross-examination CI Gitua he said that he only did one field trip for a few days to Goroka at the preliminary phase of the Nokondi investigation. Because of the violence during the investigation it was not conducive to go into Nokondi and extract records and police halted the investigation because it was unsafe to continue. He was briefed by his officers as to the situation in Goroka.  It was possible that the first time that his letter in December to the AG was the first time someone had sought assistance for GDDA. He did not agree that he directed the auditor’s work. That would not be appropriate. He only directed detectives. The auditor’s work specification is different. He identified his signature on the letter dated 18 December 2018 to the AG requesting copies of the Nokondi report. He could not recall if outside funding was provided for Nokondi.

37.	In response to my questions CI Gitua could not recall if search warrants were executed in respect of Nokondi or on the offices of Nokondi. The Nokondi investigation was led by Lucas Muka.  The GDDA investigation was led by Sergeant Luke Upa. He could not recall when the violence occurred but the private investigator was badly beaten because of his involvement. He could not recall when the GDDA investigation began. He was not aware that payments were made to Optimax in relation to the GDDA investigation. 

38.	The accused was a wholly unimpressive witness. His demeanour was poor.  He was both argumentative and evasive.  His testimony was contradictory at times and inconsistent with the documentary evidence.  He was vague and contradictory about how long he worked on the Nokondi investigation and when he started working on the GDDA investigation.  His evidence about how his company came to be involved was similarly contradictory and unclear. At one time he said he suggested it whilst already member of the team, at another he said he was asked to assist. But the accused had not even been deployed to Goroka for the Nokondi investigation, let alone been asked by CI Gitua to join the GDDA investigation, when the first lot of monies were paid to his company. The suggestion that a senior auditor would receive monies through his company account which were intended for an investigation to avoid “red tape” is implausible. His evidence about acquittals was similarly, vague, contradictory and nonsensical.  

39.	I will return to my assessment of CI Gitua below.

FINDINGS OF FACT

40.	The accused has a Bachelor’s Degree in Business Management from the University of Papua New Guinea and a Masters in Forensic Accounting obtained in 2013 from the University of Wollongong, New South Wales, Australia. The accused first commenced employment in the Auditor-General’s Office in 2008. The accused has over 15 years of experience as an auditor including 10 years specializing in forensic audit and investigations. 

41.	In July 2018 the accused was employed as a Principal Auditor. On 24 September 2018 he was appointed Senior Principal Auditor, as a contract officer.  He has been the Acting Director of the Forensic Audit Unit for the past two years.

42.	The evidence of Messrs Kega, Damaru and Gitua establishes that there is a longstanding arrangement by which the police write to the AG when they seek to have a forensic auditor assist them with an investigation. 

43.	It is the sole prerogative of the AG to assign an officer from the AGO to assist police. The officer is released temporarily to assist police for a special project or a period of time. Their salary is paid by the AGO.  In the event of travel, travel and accommodation costs of the AGO officer may be met by police where funding permits, or by the AGO, or in some cases by other relevant State entities, the Provincial Administration or the DSIP concerned. 

44.	The officer is required to provide to the AG, through his supervisor, regular updates as to his activities.  

45.	The officer is also required to produce a forensic audit report into the subject of the investigation, which will be provided to the police officer in charge of the investigation in the first instance and will be used in any subsequent prosecution. 

46.	On 26 July 2018 DCS Damaru wrote to the AG requesting an auditor to assist with an investigation being conducted by the NFACD into the alleged misappropriation of monies belonging to the Eastern Highlands Provincial Government, including those of Nokondi Investment Ltd, a business arm of the Provincial Government. The investigation was sanctioned by the Eastern Highlands Executive Council pursuant to its decision of 12 October 2017. A complaint was filed with police supported by a report from a private investigator who was initially engaged to investigate. The NFACD sought to have the AGO provide a second opinion and an officer join the team for briefings and deployment to EHP. The team leader was Detective Inspector Lucas Muka.

47.	By handwritten note of 27 July 2018 Mr Kega asked the Assistant Auditor-General, Mr Joseph Wak, to advise whether the AGO should join the fraud squad for the investigation. On Mr Wak’s recommendation Mr Kega directed the accused on 30 July 2018, again by handwritten note on the same document, to “contact the respective fraud officer and commence the process to investigate, since we do not have much time”. 

48.	On 15 August 2018 the accused sent an email to Mr Wak re “Nokondi Group of Companies Investigation Update”. The accused stated that he was engaged to assist police as requested by the Director of NFACD. The team was deployed to Goroka on Sunday, 5 August 2018 to conduct the investigation sanctioned by the Eastern Highlands Provincial Executive Council. The team was made up of NFACD detectives and he as the auditor to probe findings raised by a private investigator. Whilst on the ground there were confrontations between the EHP Governor and the Provincial Administrator regarding their presence and the investigation. As a result they were recalled by the NFACD Director on Thursday, 9 August 2018. He was advised by the team leader of the investigation that they would return to Goroka the following week, date and time to be confirmed.

49.	On 24 August 2018 Mr Wak asked the accused via email in reply as to the status of the audit into the Nokondi Group of Companies. 

50.	On 7 September 2018 Mr Wak received two emails purportedly from Keryn Hargreaves, the Acting General Manager of Nokondi, referring to an earlier telephone conversation with Mr Wak and attaching a letter on Nokondi letterhead stating that the accused had sought to obtain company records for the investigation but had not provided a letter from either the AGO or the NFACD and that she was unwilling to provide confidential documents to him in the circumstances. The content of the letter is hearsay. Ms Hargreaves was not called to give evidence and the accused was not questioned by either party about the content. The letter was, however, sent to the AGO’s in-house counsel on 10 September 2018 by Mr Wak and copied to the accused.  

51.	On 19 September 2018 Mr Wak sent an email to the accused following up on his email of 24 August 2018 seeking an update at the earliest. 

52.	On 31 October 2018 the accused sent an email to Mr Wak under the subject heading “Status Report Nokondi Group of Companies Investigation”, sincerely apologising for not updating him of their progress in Goroka.  He was unable to access any email from the office and in addition his laptop was stolen 3 weeks earlier. He managed to get it back but all the files were wiped out.  He called two (named) persons about it and took it to the Datec office in Goroka but was unable to recover all the files. He restated that he was tasked to establish whether the allegations raised by the private investigator into the operations of Nokondi had merit. He came up to Goroka in mid-September with fraud members and worked on the allegations and established five cases for investigation to commence. Investigation had commenced but they had a few setbacks, including “slow collection of documents and execution of search warrants. We did managed to obtain required documents but still awaiting bank statements of accused in our investigation. Also the loss of files in my laptop had a major impediment in our investigation and I have rebuild the file and we set for making arrests in the coming week if all goes well.” A report of the outcome would be conveyed to Mr Wak once arrests had been made by the case officer or the Deputy Director of the NFACD. Once again, he apologised sincerely for not providing a weekly brief.

53.	On 6 November 2018 Mr Wak replied to the accused via email thanking him for the update but advising that certain matters still needed to be addressed, including that whilst the accused had mentioned that a report would be furnished when arrests were done, no time frame was indicated. The accused was directed to send a brief directly to the office for the AG’s information. Mr Kega was copied in on the email and directed Mr Wak to contact the OIC of the investigation. The accused was copied in on the emails.

54.	On 7 November 2018 Mr Wak advised Mr Kega via email that he had made contact with the OIC of the Nokondi Investigation, Sgt Michael Sowede, and he assured him that he would furnish a brief as soon as possible and that they will conduct arrests shortly. The accused was copied in on the email.

55.	On 9 November 2018 the accused sent an email to Mr Wak, copying Mr Kega, to the effect that he could not send the letter because of scanning issues. He then attached a letter of update by the team leader of the investigation, DS Michael Sewode, OIC, Fraud, Goroka to Director NFACD headed “Brief on the Goroka District Development Authority Case (GDDA) FCR No #173/18”.  The minute stated that based on the accused’s forensic audit report and interviews conducted with stakeholders they were ready to conduct arrests but had to suspend the record of interview of 9 November 2018 so that the suspect could engage a lawyer. The interview was suspended again on 12 November 2018 following a letter from the former Member of Parliament, Bire Kimisopa, which alleged that the investigation was obstructing his election petition case. 

56.	On 22 November 2018 Mr Wak emailed the accused stating that it was two weeks since the last update and seeking a further update as soon as possible. 

57.	On 23 November 2018 the accused wrote via email to Mr Wak, copying Mr Kega, in the same chain of emails, stating that as per his earlier brief they had already commenced the interview of the main suspect but had to suspend the interview and arrest on instructions from the Police Station Commander Goroka following the letter from Mr Kimisopa. They were waiting from directives from the Police Commissioner and Director, NFACD, to continue. The Deputy Director, NFACD, would provide a brief upon his return to Port Moresby from duty travel to Kokopo.   

58.	On 29 November 2018 Mr Wak, copying Mr Kega, wrote to the AGO’s in-house lawyer, Ms Zurenuoc, forwarding the emails of 23, 22 and 9 November, stating that it appears that the investigation is different from the Nokondi investigation, noting that the AG should have been advised and asking for her advice. 

59.	On 30 November the accused wrote to Mr Kega via email, copying in Mr Wak and Ms Zurenuoc, under the subject “Brief Report of Investigation in Goroka, EHP” and attaching “the brief report of the investigations in Goroka, EHP” from the OIC Fraud, EHP, stating that “he is the officer I am assisting”. He says that a final and complete report will come from the Deputy Director and Director of NFACD once all arrests are completed. Attached are two letters from DS Sewode, Office of the Provincial Fraud Unit, Goroka to the AG. The first is dated 30 November 2018 reporting on the GDDA matter and outlining the involvement of the accused. The second is dated 7 November 2018 under the subject “Update of Investigations in Eastern Highlands Province and the Engagement of Your Auditor – Paulson Undi”.  The report states: “We are pleased with the engaging of your auditor in assisting us in our investigations. However, our investigations have been delayed for a couple of weeks due to the delay in obtaining documents with ANZ bank after warrants were served for vouchers and bank statements of the accused.  We have finally received the vouchers and bank statements and have been working over the weekend to prepare for arrest which we will execute in the coming days. After the arrests are done we will release Mr Undi back to your office and will recall him for his engagement for the other cases identified in the allegations registered with our office.”

60.	On 14 December 2018 a letter from the Office of the Governor, Eastern Highlands Provincial Government was sent to Mr Kega requesting a copy of the forensic audit report of the financial affairs of Nokondi Investment Limited, a company owned by Eastern Highlands Provincial Government. The report complained that the accused was engaged to conduct a forensic audit following a request from NFACD but had failed to undertake the task and the Provincial Government had not yet received the report even though it incurred costs over the period of his engagement. It requested a forensic audit be conducted as requested by the NFACD and the report provided to Provincial Executive Council as soon as possible. 

61.	On 18 December 2018 Mr Kega referred the letter by handwritten note to Legal Counsel stating that he “thought the investigation was being done by police (fraud squad) and AGO assisted. The report should be issued under police seal. Clarify”.

62.	On 18 December 2018 Mr Wak wrote to the accused via email, copying Mr Kega and Ms Zurenuoc, re “Assessment of Financials into EHPG Business Arm (Nokondi Investment Limited)”, stating that the accused had not yet provided his full report to the Auditor-General regarding his engagement by the NFACD. “That report should also indicate whether you have completed your assessments on the financials in relation to the Nokondi Business Arm Investigation.”

63.	On 21 December 2018 at 1123 am Mr Wak sent an email to the accused, copied to Mr Kega and Ms Zurenuoc, headed “Non Reporting of Financial Assessment of Nokondi Group of Companies Fraud Investigation to NF&ACD” stating that: “We have received letters from the Governor of EHP and the NFACD and representations from Detective Inspector John Muka (team leader NF&ACD investigation of Nokondi Business arms) and Mr Simon Gigil (Investigator/Consultant) and author of the initial request for AGO assistance through the NF&ACD, that no forensic report (Assessment of financials) to be used as evidence were ever submitted by you on the above investigation. Detective Inspector John Muka also asserted that you have not been helpful when asked on many occasions regarding your input. This is quiet (sic) alarming as you have been engaged since August this year. Our discussions with Detective Inspector Muka and Mr Gigil also indicated that you have digressed from the initial engagement sanctioned by AGO and performing other work not related to the primary case. Please clarify and furnish your report as soon as possible.” 

64.	Attached to the email was a letter on NFACD letterhead from DCI Gitua, as Acting Director, NFACD, to the AG dated 18 December 2018 stating that the accused “was in the province for more than three months but to date we have not received any audit report/s from him including write-ups for any records for the company. We request that if he furnished any reports regarding the Nokondi Group of companies to your office, we may require a copy of the report to assist us in our investigation. Should you require further information please contact Detective Insp Lucas Muka in this regard on” the telephone numbers provided. 

65.	The accused responded, copied to all, at 1 pm stating: “Hi Felix. I did two reports for the Nokondi Investment Investigations and had discussion with the Deputy Director and Mr Gigil. After our discussion, the Deputy Director advised that we needed to get the view of the Directorate’s lawyer in order for the investigation to continue whilst assessing the issue on the ground. Unfortunately my laptop was stolen from the vehicle during lunch hour outside of Ela Motors Goroka so I was unable to make available the reports to the officers concerned. I managed to get back the laptop but all the documents and files were completely wiped out. My laptop is in repair to retrieve the files but I have started all over again and will submit the report to the officers concerned.”

66.	Mr Wak responded, copied to all, at 429 pm expressing his disappointment that the accused had “not furnished any report to date. Your early email indicated that your laptop was stolen in early October, 2018. You should have had it completed by now and submitted as a matter of priority. I also hope that you have reported the stolen laptop to the Police when it happened due to the sensitivity of the contents. You also have the report of your engagement to AG still outstanding. You should get these done immediately and submit. Further, I also wish to request an explanation on how you were engaged on the Goroka District Development Authority Investigation. Please advise if a request for AGO assistance was sought and given as a matter of protocol by the NF&ACD as this investigation into Goroka DDA was not included in the initial request letter dated 26th July, 2018. For your urgent action.”     

67.	In addition to the above correspondence, CI Gitua signed a letter dated 14 December 2018 re “Engagement of Paulson Undi for Nokondi Investment & Goroka DDA Investigations”. It states that during the course of Nokondi Investment investigations, unforeseen issues were experienced that affected the progress of the investigation. Since the accused was already on the field DCI Gitua verbally instructed him to assist with the GDDA investigation that was filed and registered with NFACD as Fraud Crime Report No 173/18 on the understanding that the NFACD, the AGO and the PPO have an existing MOU. “Your officer’s experience and expertise proved to be very instrumental in the two arrests done in the Goroka DDA investigations. With both the Nokondi Investment and Goroka DDA investigations are still on going, the services of the auditor (Paulson Undi) will still be required. Your office will be notified when his engagement will cease after the investigations are completed.”  

68.	I further find, as admitted by the accused, that Optimax Forensics and Advisory Solutions was registered as a business with the Investment Promotion Authority on 30 June 2017.  The accused is the sole owner, which is registered at his address. 

69.	Prior to 29 June 2018 Optimax had not been engaged by the Goroka District Development Authority to undertake any work. The accused admitted pursuant to s 589, Criminal Code that the following payments were made by the GDDA to Optimax Forensics and Advisory Solutions commencing 29 June 2018. 

Payment	Date	Amount (in kina)	Chq No.	
1	29 June 2018	60,500	10698	
2	20 September 2018	70,000	835	
3	26 September 2018	70,000	91	
4	15 November 2018	60,000	245	
5	13 December 2018	68,400	500	

70.	The payments were made in relation to invoices rendered or requests made by Optimax in relation to the GDDA investigation, copies of which were also admitted. 

SECTION 202, REFUSAL BY PUBLIC OFFICER TO PERFORM DUTY

71.	Section 202 of the Criminal Code creates the offence of refusal of public officer to perform duty. It provides:

REFUSAL BY PUBLIC OFFICER TO PERFORM DUTY.
A person employed in the Public Service, or as an officer of a court or tribunal, who perversely and without lawful excuse omits or refuses to do any act that it is his duty to do by virtue of his employment is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding two years, and a fine at the discretion of the court.
72.	To establish the offence the State must prove beyond reasonable doubt that the accused:

a)	employed in the Public Service (or as an officer of a court or tribunal);
b)	perversely; and
c)	without lawful excuse;
d)	omits or refuses to do any act;
e)	that is his duty to do by virtue of his employment.

EMPLOYED IN THE PUBLIC SERVICE

73.	There is no dispute that the accused was employed in the Public Service.

74.	The accused admits and the evidence establishes beyond reasonable doubt that the accused was employed by the Auditor-General’s Office at the relevant time. 

75.	Section 202 falls within Part III, Division 9 of the Criminal Code. Section 83A provides that “person employed in the Public Service” includes:

(a) a member of any of the State Services established under or by authority of Section 188 (Establishment of the State Services) of the Constitution; and
(b) a constitutional office-holder as defined in Section 221 (Definitions) of the Constitution; and
(c) a member of or person employed by a constitutional institution, being any office or institution established or provided for by the Constitution including the Head of State, a Minister or the National Executive Council; and
(d) a member of the National Parliament or of a provincial assembly; and
(e) a person employed under the Official Personal Staff Act 1980 or the Parliamentary Members’ Personal Staff Act 1988; and
(f) a person employed by a provincial government; and
(g) a member, officer or employee of a body or corporation established by statute;

76.	See also Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112 at [32] as to the broad nature of s 83A.

77.	The State submits that the Auditor-General is a State Service pursuant to s 83A(a).  I do not agree. 

78.	The State Services established under s 188 (Establishment of the State Services) of the Constitution do not include the Office of the Auditor-General.  The Office of the Auditor-General is, however, expressly created under s 213 of the Constitution. Thus the accused was employed in the Public Service pursuant to s 83A(c) of the Criminal Code. 

OMITS OR REFUSES TO DO ANY ACT 

79.	The indictment does not particularise the report the accused omitted to provide. It is clear from the particulars contained in the alleged brief facts, however, that it is a report on the “books of Nokondi” or in other words a forensic audit report for Nokondi. No issue was raised with respect to the indictment and there is no suggestion that any issue of prejudice arises. 

80.	I am satisfied beyond reasonable doubt that the accused omitted to provide a forensic audit report for Nokondi.  There is no dispute and the accused admits that no such report was ever produced by him, either to the RPNGC or the AG.

THAT IS HIS DUTY TO DO BY VIRTUE OF HIS EMPLOYMENT
Submissions

81.	The State submits that the duty must be a lawful direction which may arise as part of the normal course of business and must fall within the accused’s duty of employment.  The accused in this case was employed to undertake audits and other financial investigations by the AGO.  He was directed by his superior officers, Mr Kega and Mr Wak, to provide a report into the financial affairs of Nokondi and he was duty bound by virtue of his employment to provide the report. The report could be provided to the AG at his request but at a minimum was to be provided to the RPNGC. 

82.	The defence submits that there was no duty to provide a report to the AG. The accused was not engaged by police for any purpose under the Audit Act. The State have not identified where any duty arises under common law or statute. The accused had no specific duty to provide a report to the AG on his findings or investigations into Nokondi because he had been seconded to an independent constitutional agency, the RPNGC, with the exclusive power to investigate criminal complaints. Any findings and reports from the investigation therefore ought to have been furnished to the agency for which purpose the accused was released, in this case the RPNGC, or more specifically the NFACD. The accused was only required to provide a forensic report to police and not to the A-G. 

Law

83.	As above, s 202 falls within Part 3 of the Criminal Code, which is concerned with “Offences against the Administration of Law and Justice and Against Public Authority”.  Other offences, albeit in different divisions of Part 3 include s 92, Abuse of Office, and s 87, Official Corruption.

84.	Section 202, Criminal Code is an important offence. It is complementary to s 92, Criminal Code.  Both s 92 and s 202, Criminal Code codify the common law offence of misconduct in office which criminalised the wilful misconduct of a public officer by act or omission.  Section 92, Criminal Code is concerned with the doing of an arbitrary act prejudicial to the rights of another in the abuse of authority of the office held in the public service. Section 202, Criminal Code is concerned with the perverse omission or refusal to do an act that is the person’s duty to be done by virtue of their employment in the public service.  

85.	Like s 92, s 202, Criminal Code recognises that those who are entrusted with a duty because of their employment in the public service must exercise it in the public interest: adopting The State v Joel Luma (2021) N8798 at [146]; The State v Yawijah (2019) N7767 at [11].   

86.	Again like s 92, s 202, Criminal Code is deliberately cast in broad terms. The circumstances in which the offence may be committed are broad and the conduct which may give rise to it are diverse. It applies to any person employed in the Public Service recognising that a perverse omission or refusal to act may occur at any level, albeit in general terms, the more senior the official the more serious the offending: adopting State v Luma at [149], affirmed Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council, supra at [32].

87.	For the purposes of s 202, Criminal Code the act omitted or refused must be one which it is the duty of the accused to do by virtue of their employment. “By virtue of” means “because or as a result of”: The New Oxford Dictionary of English.  

88.	In determining what constitutes such a duty a broad approach should be adopted given the nature and purpose of the offence. 

89.	If there is any doubt as to whether a duty exists a fair and liberal approach must be adopted: PLAR No. 1 of 1980 [1980] PNGLR 326; SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693; Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council, supra at [10] to [12]. 

90.	As the Court said in the latter case when determining the meaning of “employed in the Public Service” for the purpose of s 92, Criminal Code, the Court’s duty to look for the context and purpose of the statutory provision has been emphasised many times. It is also to be remembered that in interpreting the statutes of Papua New Guinea the matters contained in ss 109(4) and 158(2) of the Constitution are to be given paramount consideration: Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433; Kidu CJ, Kapi DCJ, Amet J. Section 158(2) of the Constitution makes clear that in interpreting the law the courts “shall give paramount consideration to the dispensation of justice”. In doing so s 109(4) of the Constitution provides that:

“Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.”.

91.	Furthermore, the ordinary rules of construction must be applied in construing a penal statute such as the Criminal Code: Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council, supra at [19] to [27].

“It is only where after having regard to the words of the statute, its context, its legislative history, purpose and any applicable interpretation provisions, the provision under consideration remains ambiguous, can the ambiguity be resolved in favour of an accused in a criminal case. This is consistent with the approach now taken at common law in jurisdictions similar to ours. As explained by Gibbs J in the High Court case of Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, 576:
“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort.””
92.	There is no ambiguity in the language of s 202, Criminal Code. The fact that Parliament has not sought to restrict the nature of the duty other than that it must arise by virtue of the person’s employment in the Public Service is consistent with the nature and purpose of s 202. 

93.	The Supreme Court in Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council, supra was concerned with the meaning of “employed in the public service”. In my view it is equally important that a restrictive approach should be avoided when determining whether a duty arises because of such employment.  

94.	There is no basis for reading words into s 202, Criminal Code. The duty need not be specific, specified, express or created at common law, by statute or terms of reference, although these matters may be relevant to establishing the duty in some cases. 

95.	It follows that I do not agree with the State submission that the duty must arise upon direction. 

96.	I also reject the accused’s submission that the duty must arise at common law or under statute.  

97.	It has long been recognised at common law that the duties of public office are not limited to those arising at common law, under statute or specified in written instruments or contracts: R v Bembridge [1783] 93 Er 679; Lyme Regis Corporation v Henley [1834] 6 ER 1180 at 1186-1189.

98.	Whilst concerned with the common law offence there is nothing in the Code to suggest that a different approach should be followed with respect to s 202. The approach is, furthermore, consistent with that taken by the Supreme Court in Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council.

99.	Duties may arise from the inherent nature of the position itself: S v Weleck 91 A 2d 751 (1952) at 756-757; State v Winne (1953) 96A 2d 63; Attorney General of Ceylon v De Livera [1963] AC 103. 

100.	Others may arise because of the particular circumstances applying at the time. 

101.	In summary, whether or not the duty exists at a particular time must be determined on the particular facts and circumstances of the case. It will depend on the evidence to establish whether the accused holds a duty by virtue of his/her employment in any particular case. Whilst the duty must be one that arises by virtue of employment in the Public Service there is no basis for a restrictive view to be taken when determining what that duty is.

102.	Mollo has no application here and the principle it stands for should not be overstated. The accused in that case was not convicted because whilst he was a public official the Court found that he was acting at the relevant time in a private capacity and not in any official capacity. 

103.	Again, whilst concerned with the common law offence, some examples from other jurisdictions are illustrative. For instance, the wilful failure of police officers to act in relation to offences committed in their presence (Shaw v Macon (1857) 21 Ga 280), on credible complaints of serious offences (Creagh v Gamble (1888) 24 LRI 458 at 472-473; DPP v Bartley [1997] IEHC 94), or to report or take other action in relation to suspected offences by other officers or associates (Duncan v State 377 A 2d 567 (1977); Duncan v State 384 A 2d 456 (1978); R v Ward (unreported, 25 February 1994); R v Ranson [2007] 2 Cr App R (S) 55; DPP v Armstrong [2007] VSCA 34 at [11], [31]; Hughes v The Queen [2014] NSWCCA 15). Similarly, prison officers and other employees have been prosecuted for failing to report the possession of contraband by a prisoner or a sexual relationship between another officer and a prisoner (R v Ratcliffe [2010] 1 Cr App R (S) 51; R v Cosford [2014] QB 81; R v King [2013] EWCA Crim 1599). A senior officer at a public hospital was convicted of failing to report a serious theft by an employee (HKSAR v Wong John [2012] HKDC 254; Secretary for Justice v Wong John [2014] 2 HKLRD 278) (taken from “Revival of the Common Law Offence of Misconduct in Public Office” by David Lusty (2014) 38 Crim LJ 337)).

104.	Similarly, in R v Dytham (1979) QB 722 a police officer was held to have been correctly convicted when he made no move to intervene during a disturbance in which a man was kicked to death. In Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868  police were convicted for failing to prevent the death of an injured man who was in their custody.

105.	I have also regard to the decision of the Supreme Court in Japele v The State (2023) SC2454 which held that “duty” in the context of “charged with the performance of any duty by virtue of employment or office” in s 87(1)(a), Criminal Code means “the specified or designated duty of the particular office or position held by a public servant or public officer”.  It does not appear that the Supreme Court in that case was referred to the Supreme Court’s decision in Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council.  I will return to its application below.

Consideration

106.	There was a handwritten direction by Mr Kega to the accused to assist police with the investigation into the financial affairs of Nokondi.  

107.	It is clear from the evidence of Mr Kega and the accused, together with the email correspondence referred to above, that the accused was required as a result of that direction to provide a report into the financial affairs of Nokondi.  That duty arose by virtue of, that is because of or by reason of his employment in the Public Service, namely with the AG, regardless of whether or not that was a duty expressly contained in his terms of reference.  

108.	The accused’s job description or terms of reference at the time of the direction were not produced. It was at least an implied condition of his employment with the AG, however, that he was required to follow any lawful direction by the AG.  The contract of employment signed by the accused on 29 September 2018 upon his promotion made that expressly clear at clause 3.5(c), which required him to “comply with all lawful orders and directions issued by the Auditor General”. 

109.	There was nothing unlawful about the direction given by Mr Kega in July 2018. 

110.	The duty arose from the time the direction was made and there can be no doubt that the accused understood that it was his duty to provide a report into the financial affairs of Nokondi upon that direction.

111.	I reject the submission that the accused was seconded to police. He was not released from the direction or control of the AG. On the evidence of all concerned, including Mr Kega, CI Gitua and the accused himself he was still obliged to report regularly to the AGO and follow its directions.  CI Gitua also made it very clear that he did not give direction to the officer from the AGO. Even if the accused had been seconded, however, it would not have relieved him of complying with the duty to provide the report which was the very purpose of any such secondment. 

112.	The MOU between the RPNGC and the AG was not produced by the State but the evidence establishes that there was a longstanding arrangement whereby from time to time an auditor would be directed by the AG to assist police with an investigation by providing a report into the financial affairs of those being investigated.  The accused was aware of the arrangement. 

113.	The accused was a senior auditor and one of only three officers assigned by the AG to assist police in such circumstances.  By his own admission it was his duty in those circumstances to prepare a forensic audit report, which report would be tendered in any subsequent court proceedings through him as an expert witness. 

114.	Defence counsel submits that there was no duty to produce the report to the AG. It appears to me that the accused was under a duty to produce the Nokondi report to the AG. I accept the evidence of Mr Kega that he was entitled to a copy of the report, albeit that it would go to police first. There is nothing contradictory about Mr Kega’s handwritten note of 18 December 2018 to the effect that he expected the report to be issued by police who were in charge of the investigation. The accused’s evidence that the AG was not entitled to receive the forensic report was not put to either Mr Kega or Mr Damaru in cross-examination.  CI Gitua’s letter of 18 December 2018 seeking a copy of the report from the AGO is also consistent with the AG having access to the report.  Having said that the emails between Mr Wak and the accused are somewhat equivocal about whether the final report to be provided to the AG was the audit report or a report confirming that the audit report had been provided to police.  

115.	The critical point, however, is that it was not necessary to the State’s case that the accused failed to produce the report to the AG. It was the State’s case that the accused failed to produce the report in accordance with the lawful direction of the AG to do so.  Whether it was to be provided to the AG in addition to the police is beside the point. The accused’s duty arose because of his employment with the Public Service, in particular the AG, and upon whose direction he was required, at a minimum, to produce the report to police.  

116.	Moreover, it is not the accused’s case that he did not produce the report because of any reason of confidentiality or otherwise. He did not deny that it was his duty to produce a forensic report for Nokondi upon Mr Kega’s direction. His evidence was that he could not physically produce the report to anyone at all because the investigation was halted due to violence and there was no documentation upon which he could base a report. As he said several times in evidence, it was the first time in fifteen years that he had failed to produce such a report. 

117.	In summary, I am satisfied beyond reasonable doubt that the accused was under a duty to produce a forensic audit report for Nokondi by virtue of his employment and that he understood that.  At a minimum he was required to produce the report to police.   

118.	I do not consider this finding to conflict with Japele. The effect of the decision was that the duty in question must exist because of or by reason of the office held. The Court found that the alleged duty did not arise on the particular facts of that case. To the extent that the case requires that the duty must be “the specified or designated duty” of the office held, the duty to produce the report was specified upon the giving of the direction by Mr Kega to the accused to assist police in July 2018.   

PERVERSELY

Submissions

119.	The State refers to the Mirriam-Webster definition of “perverse” to submit that the conduct must be turned away from what is right or good, corrupt, improper or incorrect but submits that “perverse” means more than “turning away from good” or “improper” and should be understood to mean “corruptly”.
 
120.	It further submits that the accused’s conduct was perverse because he availed himself of a business opportunity instead of doing his duty to the AG. To facilitate the GDDA investigation, the accused placed himself, through his company as essentially the contracting agent. This included provision of costings, correspondence through an employee, Regan Tepi, and the requirement to account for expenditure. His company accepted payment directly from the GDDA. The evidence excludes the possibility that Optimax’s involvement was a contract of convenience only. The accused obtained total financial control over the GDDA investigation, control he did not have over Nokondi. He had a clear motive to stay in Goroka.  He chose to concentrate his efforts on the GDDA investigation and abandon his duty to Nokondi. The financial incentive to him, directly and indirectly, was obvious. He became the person who provided the costings, including high amounts for transport and administrative costs which are generous to Optimax. The introduction of Optimax breached his contract. His omission to report on Nokondi can only be a deliberately dishonest act.  His emails that he could provide reports to police demonstrates that he knew that he was required to report – he just lied about doing it. By introducing his company as contracting agent he gained total control over the funding of the GDDA investigation. Given the risk this represented for him this cannot have been altruistic. The risk involved that he breached his obligations to the AG and failed to report the tax implications of monies passing through the company,  

121.	The accused submits that even if there was a duty to submit a report to the AG, the failure was not perverse. The accused’s efforts were hindered by circumstances beyond his control which inhibited his ability to access information necessary to conduct a forensic audit investigation into Nokondi. As far as progressive reports were concerned, there were numerous emails between the accused and his supervisor, Mr Wak, providing brief updates of his engagement with police, and correspondence was also exchanged between the AGO and the police. In any case, the only concern that the AG had with regards to the accused’s involvement with the investigation was the “finished product”. The accused’s subsequent involvement in the investigation into the GDDA was a result of a request by CI Gitua, the Deputy Director, NFACD, and overall team leader for the investigation. The Goroka DDA investigation was completed and notwithstanding its allegation that the forensic investigation was unsanctioned, the State took no issue with the forensic audit report, which they relied upon to prosecute two accused. The accused was the State’s expert witness through whom the unsanctioned audit report was tendered into evidence. Whilst the State alleges that the accused had abandoned the Nokondi investigation for the Goroka DDA investigation for financial interest, it has not demonstrated how the accused gained financially by undertaking the Goroka DDA investigation as opposed to the latter.

Law

122.	The omission or failure must be perverse. “Perverse” is not defined in the Criminal Code. Its ordinary meaning is “showing a deliberate and obstinate desire to behave in a way that is unreasonable or unacceptable”: The New Oxford Dictionary of English. Or in other words the conduct must be wilful and unreasonable. 

123.	The term should be given its ordinary meaning. I do not accept the State’s submission that perversely means “corruptly”. The word “corruptly” does not appear in the provision. “Corruptly” is an element that does appear elsewhere in the Code and has its own meaning. The weight of National Court authority holds that corruptly means dishonestly: see discussion in State v Gamato and Hetinu (2021) N9250 at [135] to [137]. Dishonesty has a particular legal meaning.

124.	As above, the offence is similar to the offence of abuse of office.  The offence recognises that those employed in the Public Service are entrusted with various duties. Those duties must be exercised in the public interest. There is no basis for imputing words or elements into the offence provision that are not there. The conduct need not be dishonest, nor corrupt, nor done for profit nor in a conflict of interest: see State v Luma, N8798 at [230]; affirmed Luma v State, SC2249 at [35] to [38].  The omission or refusal to act need not be done out of malice, friendship or indifference.  The presence of such matters may be relevant to establishing the offence but they are not necessary to it. 

125.	The question to be determined in any case is whether the omission (or refusal) was perverse, that is whether it was wilful and unreasonable in all the circumstances. 

126.	Finally, like s 92, the conduct must be so serious that it is worthy of condemnation and criminal punishment. The perverse omission or refusal to act must fall so far below acceptable standards as to amount to an abuse of the public’s trust: adopting State v Luma at [161], affirmed Luma v State. 

Consideration

127.	I am satisfied beyond reasonable doubt having regard to the following facts and circumstances that the accused’s omission to produce the forensic audit report for Nokondi was perverse.

128.	The evidence establishes that the accused had been employed with the AGO for many years, was a very senior auditor, and one of only three officers assigned by the AG to assist police from time to time. 

129.	The accused was deployed to Goroka for the express purpose of providing a forensic audit report for Nokondi on 5 August 2018.  He remained in Goroka until at least December 2018 and yet never produced the report. 

130.	The accused’s omission to provide the report would have been perverse in those circumstances even if violence prevented investigations on the ground.  It would have been perverse for the accused to go to Goroka on a publicly funded salary for the specific purpose of providing such a report and remain there for several months without informing the AG that he could not do so. Any reasonable person would appreciate that, let alone a very senior auditor with the AGO. 

131.	Whilst I accept that there may have been some violence in Goroka which inhibited the Nokondi investigation in its early stages, the evidence excludes beyond reasonable doubt the possibility that the accused failed to provide the report because of any violence or other circumstances beyond his control.  

132.	In making this finding I have taken into account that the team leader of the Nokondi investigation, Lucas Muka, was not called. I have also taken into account the evidence of CI Gitua, who impressed me as a truthful witness. 

133.	CI Gitua confirmed that there was some violence but it is clear that he was not closely involved in the conduct of either the Nokondi or GDDA investigations himself and it appears to me that his recollection of events is limited.  On his evidence he was in Goroka for only a few days at an early stage.  I accept that he verbally asked the accused to become involved in the GDDA investigation at that stage. It is also apparent from his letter of 18 December 2018, however, that whatever issues had affected the Nokondi investigation at that earlier stage, he was dissatisfied with the subsequent failure of the accused to produce a report. 

134.	In addition, the accused never sought approval from the AGO to assist police with the GDDA investigation.  There can be no doubt given the accused’s experience that he knew that he needed to seek approval from the AG for that purpose. 

135.	It is also relevant that nowhere in his email correspondence to the AGO does the accused say that he is unable to provide the report because of any violence associated with the investigation. 

136.	The accused’s email of 15 August 2018 refers to some confrontations between the EHP and the Provincial Administrator following which the team was briefly recalled to Port Moresby. The accused then failed to report as to his progress despite two emails from Mr Wak, chasing progress on 24 August and 19 September.  

137.	It was not until 31 October that the accused responded to Mr Wak regarding Nokondi but no reference was made to any violence in that email.  He offered other excuses for failing to provide regular reports on his progress to the AGO and for not producing the report itself but never suggested that he was unable to do so. 

138.	On the contrary, whilst the accused referred to “some setbacks”, including the slow collection of documents and execution of search warrants he stated that “they managed to obtain the required documents but are still awaiting the bank statements of the accused”.  Whilst he referred to the loss of his laptop as “a major impediment” he said that he was able to rebuild the files and furthermore that arrests were planned for the following week. 

139.	This is at odds with the accused’s evidence that violence prevented the investigation and that he did not have access to the financial records and could not access them because they were held by the Provincial Administration.  

140.	Thereafter, in his emails of 9 November, 23 November and 30 November, the accused reported on the progress of the GDDA investigation but failed to make clear that it was an entirely different investigation from the Nokondi investigation. The correspondence shows a deliberate intention on the part of the accused to mislead the AGO. 

141.	Even when confronted by Mr Wak’s email of 21 December 2018 the accused made no mention of violence or lack of documentation. He said again that he did in fact compile the reports. They were lost with his laptop but he had started all over again and would submit the reports. 

142.	The evidence further establishes that the accused’s company received K328,900 in connection with the GDDA investigation between 29 June 2018 and 13 December 2018.  Some of the monies were received well before the accused had been directed to go to Goroka in relation to the Nokondi investigation. 

143.	At no time did the accused seek permission from the AG to operate any business in accordance with his obligations under s 79 of the Public Services (Management) Act 2014 and Clause 26 of the contract of employment he signed with the AG as a Senior Principal Audit on 29 September 2018, whilst he was in Goroka.

144.	There is an inference that the accused profited financially from the monies paid to his company for the GDDA investigation. Very large amounts of money were paid to the company, which he had no approval to operate, for an extended period of time, and for which it appears from his own evidence there was no proper acquittal, in relation to an investigation with which he was directly involved. The accused did not make the AG or CI Gitua aware of his company’s involvement. 

145.	The State did not lead evidence, however, as to what happened to the monies after they were paid to the company, the number of officers involved, the usual or actual costs of the investigation, or whether any acquittals were submitted by Optimax to the GDDA.

146.	The involvement of the accused’s company in connection with an investigation in which the accused was involved was wholly inappropriate regardless of whether he or his company profited from it. There can be no doubt given his education and experience that the accused knew that.  

147.	It is also the case that the accused received guaranteed allowances whilst working on the GDDA investigation in addition to those which were only sometimes paid for the Nokondi investigation.

148.	In summary, the evidence establishes that the accused was directed to go to Goroka for the express purpose of assisting police with the Nokondi investigation. He was there for several months. He failed to provide a report. Instead, without permission, the accused joined another investigation and provided a report into the misuse of GDDA funds. This was an investigation which the accused’s company was closely associated and received very large amounts of money to fund the cost of the GDDA investigation, some of which were received even before he went to Goroka for the Nokondi investigation. In addition, it was an investigation in respect of which the accused received guaranteed travel allowances for an extended period of time, allowances which were paid in addition to those which were sometimes paid for the Nokondi investigation. At no time did the accused seek permission from the Auditor-General to join the GDDA investigation as he well knew he was required to do. At no time did he declare the involvement of his company, which clearly constituted a conflict of interest and was wholly inappropriate regardless of whether his company in fact profited from the arrangement. The accused failed to provide regular status reports to the Auditor-General about the Nokondi investigation and deliberately mislead the Auditor-General’s Office with reports about the progress of his work in Goroka without making clear that he was in fact working on a completely different investigation from that which the Auditor-General had directed him to assist.

149.	The evidence establishes beyond reasonable doubt that the accused failed to produce the Nokondi report in favour of producing a report for the GDDA investigation, with which his company was closely associated and in respect of which he received additional, guaranteed travel allowances. He did so for own purposes even if the evidence is insufficient to establish that his company profited. He did so without permission and without informing his supervisor. The combination of circumstances leads to the inevitable conclusion beyond reasonable doubt that the omission was perverse, that is it was wilful and unreasonable.  The evidence excludes any other rational inference.

150.	The accused was a very senior auditor within the AGO, the very State agency responsible for auditing the expenditure of State monies. He was one of only three officers trusted with the responsibility of assisting police conduct investigations at the direction of the AG. The nature and extent of his failure to perform his duty in the circumstances described was so serious and fell so far below acceptable standards as to amount to an abuse of the public’s trust worthy of condemnation and criminal punishment.

WITHOUT LAWFUL EXCUSE

151.	There was no lawful excuse for the accused’s conduct. The accused’s conduct was deliberate. The omission did not occur independently of the accused’s will or by accident for the purposes of s 24, Criminal Code.  Section 202 is not an offence relating to property and s 23(2) of the Criminal Code has no application. The accused was not acting under any compulsion pursuant to s 32, Criminal Code.  The evidence excludes the possibility that the accused honestly and reasonably believed he was not under any duty to provide the report or that he was unable to produce the Nokondi report for the purpose of s 25(1), Criminal Code. 

CONCLUSION

152.	In conclusion the evidence establishes beyond reasonable doubt that the accused is guilty of the offence charged in the indictment. 

Verdict accordingly. 
___________________________________________________________
Lawyer for the State: Public Prosecutor			
Lawyer for the accused:   Public Solicitor