N11429

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO. 95 OF 2024

THE STATE

V

JACOB YAFAI

WAIGANI:	SALIKA CJ
10, 11, 12, 19, 24, 25 MARCH, 9 MAY, 2 JUNE, 14, 19 AUGUST 2025

Criminal Law – Practice and Procedure – Charges of Misappropriation – Accused directed to verify claim and pay – Accused did not verify claim – Payments done without verification – Amounted to dishonestly applying money – Belonging to the State.

Counsel
Ms L Maru & Ms B J Talingapua for the plaintiff
Mr E Sasingian & Ms F Matiabe for the defendant

1.	SALIKA CJ: INTRODUCTION: Jacob Yafai is charged with four counts of misappropriation namely:

Count 1
JACOB YAFAI of KARAPIA VILLAGE, YANGORU SAUSIA in EAST SEPIK PROVINCE stands charged that he between 31st day of October, 2012, and the 30th day of November 2012, at PORT MORESBY in Papua New Guinea dishonestly applied to the use of other persons namely a PAUL PARAKA, FOURTEEN MILLION KINA (K14,000,000.00), the property of  the Independent State of Papua New Guinea contrary to Section 383A (1) (a) and (2) (d) of the Criminal Code.

Count  2
JACOB YAFAI of KARAPIA VILLAGE, YANGORU SAUSIA in East Sepik Province stands charged that he between the 1st day of December 2012 and the 31st day of December 2012 at PORT MORESBY in Papua New Guinea dishonestly applied to the use of other persons namely a PAUL PARAKA, THIRTEEN MILLION AND EIGHT HUNDRED THOUSAND KINA (K13,800,000.00) the property of the Independent State of Papua New Guinea contract to Section 383A (1) (a) and (2) (d) of the Criminal Code.
Count  3
JACOBY YAFAI of KARAPA VILLAGE, YANGORU SAUSIA in East Sepik Province stands charged that he between the 1st day of March 2013 and the 31st day of March 2013 at PORT MORESBY in Papua New Guinea dishonestly applied to the use of other persons namely a PAUL PARAKA, SIX MILLION KINA (K6,000,000.00) the property of the Independent State of Papua New Guinea contract to Section 383A (1) (a) and (2) (d) of the Criminal Code.
Count  4
JACOB YAFAI of KARAPA VILLAGE, YANGORU SAUSIA in EAST SEPIK PROVINCE stands charged that he between the 1st day of May 2013 and the 31st day of May 2013 at PORT MORESBY in Papua New Guinea dishonestly applied to  the use of other persons namely a PAUL PARAKA, EIGHT MILLION KINA (K8,000,000.00) the property of the Independent State of Papua New Guinea contrary to Section 383A (1) (a) and (2) (d) of the Criminal Code.
2.	He is also charged with one count of abuse of office namely:

Count 5
JACOB YAFAI of KARAPA VILLAGE, YANGORU SAUSIA in EAST SEPIK PROVINCE stands charged that he between the 1st day of November 2012 and the 31st day of  May 2013 at PORT MORESBY in Papua New Guinea  being employed in the Public Service as the Deputy Secretary Operations and also as the Acting Secretary for the Department of Finance did illegally facilitate the payment of Forty One Million and Eight Hundred Thousand Kina (K41,800,000.00) to PAUL PARAKA in abuse of his authority as Section 32 Officer and or as Requisition Officer  respectively which is prejudicial to the lawful rights of the Independent State of Papua New Guinea contrary to Section 92  (1) of the Criminal Code.
3.	For each of the five counts, the State invoked Section 7 (1) (c) of the Code.

THE ALLEGATIONS BY THE STATE AGAINST JACOB YAFAI
4.	Jacob Yafai was Deputy Secretary Operations in the Department of Finance between 31st October 2012 and 31st of May 2013.

5.	Between 31st October 2012 and 31st May 2013, Jacob Yafai, as Deputy Secretary Operations, Finance Department, approved payment to Paul Paraka Lawyers without proper legal clearance from the Attorney General and the Solicitor-General on those payments and in breach of instructions from the then Minister for Finance, James Marape and the then Secretary for Finance, Steven Gibson.

6.	On that basis, the State alleged Jacob Yafai acted dishonestly when he failed to conduct proper due diligence checks to verify the claims from Paul Paraka for the payments.  The State further alleged that Yafai did not follow the proper required process for payments of the four separate cheques as required under the Public Finance (Management) Act when there were no valid Court Orders ordering those payments claimed by Paul Paraka Lawyers, to substantiate those payments.

7.	The State further alleged that when Mr Yafai approved the four (4) different payments, he aided in the dishonest application of the payments of K14,000,000.00, K13,800,000.00, K6,000,000.00, and K8,000,000.00, monies belonging to the Independent State of Papua New Guinea thereby contravening s. 383A(1)(a), (2) (d) of the Criminal Code Act.

8.	In relation to Count 5 of the charges, the State alleged Mr Yafai abused the authority of his office as Deputy Secretary Operations, Department of Finance, when he signed as the s. 32 Officer of Public Finance (Management) Act, approving the payments.  The State alleged that Mr Yafai did not:

i)	Follow the proper procurement process; and 
ii)	did not comply with instructions issued by the then Minister for Finance and the Secretary for Finance; and 
iii)	did not get clearance from the Department of Justice and Attorney General to authorize the payments; 
iv)	authorised payments of the four cheques without any valid Court Orders and verification.

9.	The State alleged that when Mr Yafai failed to do all the due diligence checks identified above, his actions and omissions amounted to acts prejudicial to the rights of the Independent State of Papua New Guinea, in that such payments to Paul Paraka Lawyers unlawfully depleted the Court Judgment Vote.

10.	The State invoked s. 7 (1) (c) of the Criminal Code Act in relation to all the charges.  Section 7 (1) (c) reads:

7.	PRINCIPAL OFFENDERS.
(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–
(a) every person who actually does the act or makes the omission that constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) every person who aids another person in committing the offence;
11.	On arraignment Mr Jacob Yafai denied each and every charge put to him.  The trial ensued after the denials.
BURDEN OF PROOF
12.	He who alleges has the burden of proof.  The State made the allegations; the State must now prove the allegations.  The elements of the charge of misappropriation the State must prove are:

i)	A person;
ii)	dishonestly;
iii)	apply to his own use or to the use of another;
iv)	property of another.
Those elements relate to the first four counts.
13.	The elements of the fifth count the State must prove are:

i)	A person;
ii)	employed in the Public Service;
iii)	in abuse of the authority of his office;
iv)	directs to be done;
v)	any arbitrary act prejudicial to the rights of another.

14.	At the outset, Mr Sasingian, counsel for Mr Yafai, informed the Court that his client’s defence was that Mr Yafai did not act with dishonesty in all the transactions he committed the State to.  He informed the Court that there was no dishonesty on the part of Mr Yafai, in that Mr Yafai was directed to pay Paul Paraka by the Minister for Finance who then was Hon. James Marape and the then Secretary for Finance, Mr Steven Gibson.

15.	The concession by the defence means Mr Yafai did apply to the use of Paul Paraka property belonging to the State, and that the application of the monies was not dishonest in that Paul Paraka to whom the money was applied to was entitled to the monies paid to him for legal services he rendered to for and on behalf of the State.

16.	Mr Yafai elected not to give evidence on the issue of honesty or dishonesty and on the issue of being directed to make the payments on the invoices from Paul Paraka and who directed him.  He exercised his right to remain silent on those issues.
THE STATE’S EVIDENCE 
17.	The State called nine (9) witnesses in support of the allegations it made against Mr Yafai, namely:

(i)	Ms Miriam Kias
(ii)	Basil Sopata
(iii)	Tess Wingi
(iv)	Timothy Gitua
(iv)     James Marape
(v)	Kerenga Kua
(vi)	Neville Devete
(vii)	Steven Davis
(viii)	Paul Mawa

18.	Apart from the oral testimonies of the State’s witnesses, some documents were tendered into evidence by consent of the lawyers and their clients.  Documents tendered into evidence are from the Exhibit List:
Exhibits List
List of Exhibits that were tendered by consent.
Name of Witness	Description of Document to be Tendered	Date	Number of Pages	Exhibit Name	
Dr Lawrence Kalinoe/Sergeant Sopata Basi	Statement of Dr Lawrence Kalinoe	14 November 2013	2	Exhibit “A”	
	Letter by Secretary for Department of Finance, Steven Gibson, to Dr Kalinoe.	17 May 2013	1	Exhibit “B”.	
	Letter from Dr Kalinoe to Secretary for Department of Finance, Steven Gibson.	22 May 2013	2	Exhibit “C”.	
Mariam Kias/Jubilee Tindiwi-Paki	Court Order of 17 November 2006 – OS No. 829 of 2006.
Parties: Paul Paraka trading as Paul Paraka Lawyers v Joshua Kalinoe & Gabriel Yer & Simon Tosali & The State.	17 November 2006	3	Exhibit “D”.	
	Court Order OS No. 829 of 2006.
Parties:  Paul Paraka trading as Paul Paraka Lawyers v Joshua Kalinoe & Gabriel Yer & Simon Tosali & The State.	22 November 2006	3	Exhibit “E”.	
	Court Order OS No. 876 of 2006; Paul Paraka trading as  Paul Paraka Lawyers v Hon. Bire Kimisopa  (Minister for Justice) & Winnie Kiap, Secretary NEC & The State.	29 December 2006	4	Exhibit “F”.	
Steven Gibson	Letter by Minister for Treasury & Finance, Mr Don Polye to Mr Steven Gibson, Acting Secretary for Finance.	18 October 2011	1 	Exhibit “G”.	
	Letter by Hon Peter O’Neill (Prime Minister) to Hon Don Polye (Minister for Finance & Treasury)	24 January 2012	1	Exhibit “H”	
	Letter by Paul Paraka Lawyers to Steven  Gibson, Secretary for Finance.	24 January 2012	1	Exhibit “I”	
	Letter by Paul Paraka Lawyers to Steven Gibson Secretary for Finance.	23 August 2012	2	Exhibit “J”.	
	Letter by Paul Paraka Lawyers to Steven Gibson, Secretary for Finance	20 September 2012	1	Exhibit “K”	
	Letter by Minister for Finance, James Marape to Steven Gibson.	3 October 2012	2	Exhibit “L”	
	Letter by Paul Paraka Lawyers to Steven Gibson, Secretary for Finance.	17 December 2012	2	Exhibit “M”.	
	Letter by Steven Gibson to Dr Lawrence Kalinoe, Secretary for Department of Justice and Attorney-General.	17 May 2013	1	Exhibit “N”	
Pou Sevese	Letter by Paul Paraka Lawyers to Steven Gibson, Secretary for Finance.	22 August 2012	1	Exhibit “O”.	
Umuse Akilo	Letter by Mary Martin, Assistant Secretary for Department of Finance to Mrs Vegumu Mainokora.	1 November 2012	1	Exhibit “P”.	
James Roy Kerwin	IFMS Transaction Listing for Department of Finance covering 1 November 2012 – 26 April 2013.	1 November 2012 – 26 April 2013	5	Exhibit “Q”.	
Vegumu Mainakora	Letter by Paul Paraka Lawyers to Bank South Pacific.  Attn:  Vegumu Mainakora	2 November 2012	3	Exhibit “R”	
John Madison/Hillary Masiria	Statement of John Madison.	6 August 2013	1	Exhibit “S”.	
Sergeant Basi Sopata	Record of Interview between Senior Constable Basi Sopata and Jacob Yafai.	12 September 2013	13	Exhibit “T”.	
	Requisition for Expenditure (FF3) and General Expense (FF4) (For Payment for K14 million to Paul Paraka Lawyers).	1 November 2012	2	Exhibit “U 1”.	
	Requisition for Expenditure (FF3) and General Expense (FF4) (For Payment for K13,8 million to Paul Paraka Lawyers.	20 December 2012	2	Exhibit “U 2”.	
	Requisition for Expenditure (FF3) and General Expense (FF4) (For Payment for K6 million to Paul Paraka Lawyers).	15 March 2013	2	Exhibit “U 3”.	
	Requisition for Expenditure (FF3) and General Expense (FF4) (For Payment for K8 Million to Paul Paraka Lawyers.	3 May 2013	2	Exhibit “U 4”.	
	Letter by Paul Paraka Lawyer to Steven Gibson as Secretary for Department for Finance.	20 September 2012	1	Exhibit “V”.	
	Letter by Paul Paraka Lawyers to Steven Gibson as Secretary for Department of Finance.	23 August 2012	2	Exhibit “W”	
	Paul Paraka Lawyers Summary of Bills of Land Matters  to Department of Justice & Attorney General as at 30 December 2005/Department of Justice & Attorney General CMS Records as at 30 December 2005.	30 December 2005	Pages 1 – 8.	Exhibit “X”.	
	Paul Paraka Lawyers Summary of ISPNG Bills to the Department of Justice & Attorney-General as at 30 June 2005.	30 June 2005	Pages 1 – 20	Exhibit “Y”.	
	Paul Paraka Lawyers Summary of Bills to Department of Justice & Attorney-General as at 30 December 2005/CMS Records.	30 June 2005	Pages 1 – 52	Exhibit “Z”.	
	Paul Paraka Lawyers Summary of Bills to Department of Justice & Attorney-General as at 31 December 2006/CMS Records.	31 December 2006	1 – 3	Exhibit “AA”.	
EVIDENCE OF STATE WITNESSES
Ms Miriam Kias
19.     Ms Kias is a lawyer, formerly employed in the Office of the Solicitor-General from February 2003 to April 2022.  That is a total of 19 years.  She gave evidence of how the Attorney General engaged private lawyers to represent the State in civil matters and that the Solicitor-General oversees or administers the brief outs.
20.     She then gave evidence of how the legal bills of lawyers briefed out to, would be processed.  She said the lawyers briefed out to would render their legal bills for payment to the Attorney General which would be first vetted by the Solicitor General.  She said all legal bills briefed out by the Attorney General were paid by the Department of Justice and Attorney General after being vetted by the Solicitor-General.

21.      She gave evidence of two types of bills to be paid.  One would be the lawyers bill of costs to be rendered by the law firm which represented the State and bill of costs ordered by the Courts.  There was also the Court Ordered Judgments against the State.  Ms Kias said all the legal bills of lawyers who represented the State were paid for by the Department of Justice and Attorney General while the Court Ordered Judgments would be paid by the Department of Finance, after it was vetted by the Solicitor-General for payment by Department of Finance.

22.      The Court Ordered bills, whether it is to be paid by the Department of Justice and Attorney General or by the Department of Finance, must both be vetted by the Solicitor-General before payment.

23.      Ms Kias in her evidence said in relation to the four cheques processed for the amounts of K14,000,000.00, K13,800,000.00, K6,000,000.00 and K8,000,000.00, these payments were never vetted by the Solicitor-General.

24.      She said in this case, the Finance Forms 3 and 4 were never commenced by the Department of Justice and Attorney General but were initiated by the accused, in the Department of Finance.

25.      In the end result, her evidence is that all the four (4) payments to Paul Paraka were unlawful in that the work on the case files that Paul Paraka was claiming were not case files briefed out to Paul Paraka Lawyers and were not vetted by the Solicitor-General.

26.       The next State Witness was Detective Sergeant Basi Sopata.  He conducted the investigations in the matter and conducted the Record of Interview between Jacob Yafai and himself.  The Record of Interview was tendered into evidence by consent without any objection.

27.      The Record of Interview conducted by Detective Sergeant Basi Sopata contains admissions by Mr Yafai of his part in this whole saga.  Sergeant Sopata asked Mr Yafai 93 questions altogether.  I reproduce some pertinent questions and answers given by Mr Yafai.

“Q.40.  Attachment M is the Finance Forms (FF3/FF4) for K14,000,000.00.  Where are the supporting documents to substantiate the payment of K14,000,000.00?

Ans.	The FF3/FF4 are not raised on their own, they come with supporting documents and authorization from Political directive, ministerial directive and approval from the Secretary.

The payment relating to Paul Paraka Lawyers Legal Bills, firstly; political directives were given, there was a letter from the Prime Minister dated 24th January, 2012, and then and that letter reached Secretary’s office on the 27th of January 2012 and was endorsed by Secretary Gibson on the same day and he says urgent submission to Secretary, Department of Treasury with details of Paraka’s bills for a warrant to be released consistent with PM’s directive he now referring to PM’s letter, that’s supporting document one for K14,000,000.00, the next one, supporting document two is the internal memo from Minister, Hon. James Marape, Minister for Finance to Secretary Gibson to clear all outstanding  commitment forthwith relating to Paul Paraka Lawyers Legal Bills and Twivey Lawyers based on that internal memo  from the Minister, Secretary Gibson directed  Deputy Secretary Operations and FAS Accounting Frame Work and Standard division to and I quote his footnote on the 1st of 11/2012, “(1) Pls use reserve to the tune of K17,000,000.00 to facilitate advance settlement of State bills (2) Transfer K17,000,000.00 and passed channels to offset the K17,000,000.00 and he signed of.  K14,000,000.00 out of the K17,000,000.00 was paid to Paul Paraka Lawyers Legal bills and K3,000,000.00 was paid to Twivey Lawyers.  This direction came from Secretary based on Minister memo.  FAS Accounting Framework, Mr Steven Nukiutu raised the requisition and took it to Secretary Gibson to endorse the K14,000,000.00 and K3,000,000.00 in his house, me and Mr Nukiutu initiated Secretary’s endorsement, he couldn’t sign as Section 32 Officer so he directed Steven Nukiutu to take the claim to me to sign as Section 32 based on his approval to pay K14,000,000.00 to Paul Paraka Lawyers.  That’s on the K14,000,000.00.
Q41.	I would also like you to see copy of  attachment N in the report.  Is it correct that attachment N is copies of Finance Forms (FF3/FF4) for K13,800,000.00 dated 20/12/12?
Ans.	It is correct; this amount is raised on the FF3/FF4 based on supporting documents and Political directives and approval from the Secretary.
Q42.	Attachment N is the Finance Form (FF3/FF4) for K13,800,000.00.  Where are the supporting documents to substantiate the payment of K13,800,000.00?
Ans.	The second payment was based on political directives and internal correspondences from Department of Finance to Department of Treasury and approval and endorsement from Secretary Finance, Mr Steven Gibson, and Secretary himself signed as Section 32 Officer approving the payment of K13,800,000.00.
Q43.	I like you to see FF3 form for K13,800,000.00.  Is it correct that you signed as the Authorised Requisitioning Officer?
Ans.	Yes I did because Secretary Steven Gibson approved the payment as Section 32 Officer.
Q44.	Is it correct you signed as ARO because you raised the claim?
Ans.	No, I didn’t raise the claim.
Q45.	Then why did you sign as ARO?
Ans.	To comply with payment process because Secretary Steven Gibson has signed as Section 32 Officer.
Q46.	I would also like you to see copy of attachment O in the report.  Is it correct that attachment O is copies of Finance Forms (FF3/FF4) for K6,000,000.00 dated 15/3/13?
Ans.	Yes.
Q47.	Attachment O is the Finance Forms (FF3/FF4) for K6,000,000.00.  Where are the supporting documents to substantiate the payment of K6,000,000.00?
Ans.	Like I said earlier on FF3/FF4 are not raised on their own, there are always supporting documents and approvals, in this case the payment was based on existing political directives, ministerial directive and Secretary’s approval and endorsement to process the payments.
Q48.	Is it correct that you signed as Section 32 Officer for payment of K6,000,000.00?
Ans.	Yes I did based on all those political directives, ministerial directives, and Secretary’s approval and endorsement.
Q49.	I would also like you to see copy of attachment P in the report.  Is it correct that attachment P is copies of Finance Forms (FF3/FF4) for K8,000,000.00 dated 03/05/13?
Ans.	Yes.
Q50.	Attachment P is the Finance Forms (FF3/FF4) for K8,000,000.00.  Where are the supporting documents to substantiate the payment of K8,000,000.00?
Ans.	Like I said earlier on FF3/FF4 are not raised on their own, there are always supporting documents and approvals, in this case the payment was based on existing political directives, ministerial directive and Secretary’s approval and endorsement to process the payments.
Q51.	Is it correct that based on same political directives, ministerial directives and Secretary’s approval and endorsements, these same letters and correspondence were used to raise these four claims for (1) K14,000,000.00 (2) K13,800,000.00, (3) K6,000,000.00 and K8,000,000.00?
Ans. 	Yes.
Q52.	Is it correct that you kept all the original Financial Documents for these payments at your house?
Ans.	Let me answer in this manner, I took the original documents and then reported it to the Chief Secretary and Acting Finance Secretary, Sir Manasupe Zurenuoc and he agreed with me on the basis of the security of the documents and day after, I returned the documents attached with my report to him.
Q53.	Is it correct that these financial documents were to be kept at Finance Department office for record and audit purposes?
Ans.	It is correct but history and our Department of Finance manual filing system record has proven that files have gone missing.
28.     The narrative from the questions and answers in the Record of Interview reproduced above is that Mr Yafai admitted raising the Finance Forms 3 and 4, signing them and the cheque payments done and he picking them and handing them over to Paul Paraka.

29.      It is noted from the above narrative that Mr Yafai’s reasons for raising the FF3s and 4s is because of political directives and the Secretary’s approvals and endorsements.

30.      In October 23 Paul Paraka submitted a claim to Secretary for Finance Mr Steven Gibson for payment of his legal fees totalling K36,083, 559.00. In the letter he made reference to Bill No 9812-10369, Bill No 10373-10527, Bill No 10582-11588 and Bill No 11637-11673. At the bottom of that letter he wrote;
“We attach copies of these set of legal bills together with the appropriate Court Order and legal clearance from the Solicitor General for your information and actions.
Consistent with the recent political directives, we request that the above legal bills be settled as soon as possible”.

31.      That letter was followed up with the next letter dated 20 September 2012.  This letter was directed to Mr Steven Gibson, then Secretary for the Department of Finance.  That same letter was copied to then Prime Minister, Hon Peter O’Neill, and Hon. James Marape, the then Minister for Finance and now Prime Minister.  The letter reproduced here is the letter copied to Hon. James Marape, Minister for Finance.
“20th September 2012

Mr Steven Gibson
Secretary
Department of Finance
P O Box 710
WAIGANI
National Capital District

Dear Sir

RE:	OUTSTANDING LEGAL FEES

We refer to our recent letter regarding the above subject matter (copy attached – marked “A”).  There is a balance of K36,083,559.65 still outstanding.  We request that the bills be settled either in full or in part from funds lawfully available.

We have been threatened by the Bank of South Pacific with foreclosure action for owing them close to K12.0 million in overdraft facility (copy of BSP letter which is self-explanatory attached – marked “B”).  We request some understanding and request that our outstanding legal bills be paid so that our Bank liability could be settled including our other operational expenses that have been outstanding for sometime.

Thank you.

Yours faithfully 

_____________

PAUL PARAKA

cc	Hon Peter O’Neill, CMG, MP
	Prime Minister

cc	Hon. James Marape, MP
	Minister for Finance”

32.      This letter was received in the Minister’s Office on 4 October 2012.  Hon. Marape as Minister for Finance received the letter on the 5th October 2012, and made the following hand written notation:

“Secretary,
Please peruse, verify and settle.
Signed 5/10/12”.
33.      The then Secretary for Finance, Steven Gibson, received the copy of the letter with the hand written notations from the Finance Minister’s Office on the same day 5 October 2012 and wrote on the top left of the letter “sighted 5/10/12 and initialled it”.

34.      On 10 October, Secretary Gibson wrote on the bottom right side of the letter the following notation:

“Deputy Strategy

1.	Verify, confirm settle.
2.	DOJ to provide additional approp” (last word not clear)

Signed 10/10.”

35.      That letter from Paul Paraka Lawyers signed by Paul Paraka himself, speaks for itself.  The notation by Hon. James Marape, the Minister for Finance, too is self explanatory, directing the Secretary, Steven Gibson, to “peruse, verify and settle”.  To me the most important task for the Secretary was to “verify” the claim.  After verification of the claim, the Secretary is directed to settle the claim.

36.      The subject matter of the letter is “Outstanding Legal Fees”.  The Hon. James Marape, the Minister for Finance, directed the Secretary to verify the claim and settle it after the verification.  The Secretary for Finance gave similar instructions to Deputy Secretary, Strategy, to “verify, confirm and settle”.  I note from the Secretary’s notations also says; “DOJ to provide additional ...” (not clear).   These notations are directed to very senior officers in the Department of Finance.   The senior officers did not verify the claim.  They, in this case, Secretary Gibson and Yafai simply processed the cheques for payment.  Secretary Gibson did not query Jacob Yafai if Paul Paraka’s claim had been verified with the Solicitor-General or the Department of Justice and Attorney-General.  Both Secretary, Steven Gibson, and Jacob Yafai failed the due diligence checks.

37.      The claim is not for outstanding Court Order payments.  As the claim by Paul Paraka was for Outstanding Legal Fees, Jacob Yafai and whoever the Deputy Secretary, Strategy, was at the time, were to verify the claim first.

38.      The Attorney-General is the brief out authority for all State Court litigation matters.  The evidence from the State witness, Miriam Kias and Neville Devete, is that the Department of Justice and Attorney-General is responsible for paying all legal fees to law firms briefed out by the State through the Attorney-General.  Here the claim for outstanding legal fees is being requested by Paul Paraka from the Department of Finance.

39.      The Department of Finance through Jacob Yafai was therefore requested to verify the claim with the Department of Justice and Attorney-General because the Attorney-General is the brief out authority and Jacob Yafai was meant to contact the Department of Justice and Attorney General firstly to verify from that Department if Paul Paraka Lawyers had been briefed out on some cases.  Secondly, to verify from the Department of Justice and Attorney-General, if indeed the State owed any outstanding legal fees to Paul Paraka Lawyers, and, thirdly; to request Paul Paraka to furnish to them the case file numbers to cross check or cross reference with the records from the Department of Justice and Attorney-General, General Case Management System Database.

40.     If the Department of Finance, through Jacob Yafai had done those basic due diligence checks with the right people, he would have done his job properly and appropriate communication made to Paul Paraka.  As it was, that did not occur.  The State ended up paying millions of kina to Paul Paraka, without proper verification of Paul Paraka’s claims.  

41.      The evidence of other State witnesses including the  evidence of the then Finance Minister and now the Prime Minister, James Marape, only strengthens the State’s allegation that the cheques paid out to Paul Paraka were facilitated by Mr Jacob Yafai.  Mr Yafai admits that in his record of interview with the police.

42.   The evidence of State witness, Neville Devete, is that he was the complainant.  He was the Solicitor-General at the Department of Justice and Attorney-General at the material time.  He expressed his views by stating in his evidence that, while it was true that Paul Paraka lawyers were briefed out by the State on some matters, Paul Paraka lawyers were fully paid for the work the law firm did and there was nothing owed by the State to Paul Paraka Lawyers.

43.      This was confirmed by State witness, Christine Gimots, who said all Paul Paraka invoices rendered for payment had been paid by the State.  She was the Case Management Manager with the Department of Justice and Attorney- General and was the brief outs and payment clerk then.  She said when invoices were submitted for payment, she would get the invoices into the Case Management System and send them for vetting and later send to the Department of Justice and Attorney-General for accounts to pay.

44.      In this case, she said there was no outstanding bills for Paul Paraka Lawyers for payment.  The payments of K14,000,000.00, K13,800,000.00, K6,000,000.00 and K8,000,000.00 were paid unlawfully to Paul Paraka Lawyers as the work on the files were never briefed out to Paul Paraka Lawyers by the State through the Solicitor-General. 

45.      There is no evidence to the contrary.  The only place to find out if a case file was briefed out to Paul Paraka Lawyers was from the Case Management System in the Department of Justice and Attorney-General through the Solicitor-General’s Office.

46.     Going back to the elements of the offence of misappropriation, Mr Yafai was directed to verify the claims by the Secretary Gibson.  Mr Yafai failed.  His failure to verify the claim amounted to dishonestly processing the payments in my opinion establishes dishonesty.  The property belonged to the State.

47.       Mr Yafai used his authority as Deputy Secretary in the Department of Finance in the abuse of his office as Deputy Secretary directed the payments of the monies to Paul Paraka, an arbitrary act of prejudicial to the interests and rights of the State.

48.      Mr Jacob Yafai was instructed and directed by the then Secretary for Finance to pay Paul Paraka for his services rendered to the State and this was to be done after he verified and confirmed the claims.  In all the four instances, he did not and therefore his processing of the FF3s and FF4s was unlawful without the verification.  The subsequent raising of the cheques for amounts K14,000,000.00, K13,800,000.00, K6,000,000.00 and K8,000,000.00 was therefore unlawful as well.

49.      In the end result, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai in the dishonest application of K14,000,000.00, the property of the State of Papua New Guinea, to the use of Paul Paraka.  Accordingly, I find him guilty of the first count of misappropriation.

50.      Similarly, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai in the dishonest application of K13,800,000.00, the property of the State of Papua New Guinea, to the use of Paul Paraka.  Accordingly, I find him guilty of the second count of misappropriation.

51.      Again, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai in the dishonest application of K6,000,000.00, the property of the State of Papua New Guinea to the use of Paul Paraka.  Accordingly, I find him guilty of the third count of misappropriation.

52.      In relation to the fourth count, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai for dishonest application of K8,000,000.00 to the use of Paul Paraka.  Accordingly, I find him guilty of count four.

53.      In relation to the fifth count, I am satisfied beyond reasonable doubt of the guilt of Jacob Yafai for unlawfully facilitating the payment of K41,800,00 to Paul Paraka by abusing his authority as a Section 32 Officer under the Public Finance Management Act which was prejudiced to the lawful rights of the Independent State of Papua New Guinea contrary to s. 9 (2) (1) of the Criminal Code.  Accordingly, I find him guilty of the charge under this count.

54.      The outcome of the case depended on whether Mr Jacob Yafai verified the claims submitted by Paul Paraka. The amount claimed by Paul Paraka were huge amounts and needed to be carefully and properly verified. Mr Yafai failed and cost the people of this country dearly to the tune of K41,800,00.00.

55.      His neglect to verify the claims to have the payments processed using his position as Deputy Secretary, Operation. Thus, using the authority of his position as Acting Secretary and Deputy Secretary Operations Department of Finance he had the cheques processed. This amounted to abusing his authority to have the cheques processed in favour of Paul Paraka to the detriment of the Independent State of Papua New Guinea.

56.      The findings of the Court in summary are:

First Count		: 	Guilty as charged 
Second Count 	:	Guilty as charged
Third Count		:	Guilty as charged
Fourth Count	:	Guilty as charged
Fifth Count 		:	Guilty as charged

Orders accordingly.
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Lawyer for the State: Public Prosecutor
Lawyers for the accused: Sasingian Lawyers