N11585

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO 255 AND 256 OF 2024

THE STATE

V

JOHN SINI PORTI and DAVID PORYKALI

19, 20 FEBRUARY, 3, 4 MARCH, 9 APRIL, 24 OCTOBER 2025
WAIGANI: BERRIGAN, J

CRIMINAL LAW – Section 92(1) of the Criminal Code – Abuse of Office –- Elements of Offence – Principles Applying - Arbitrary act – Prejudicial to the rights of another person - Abuse – Must be a wilful abuse of the authority of office and worthy of criminal punishment – Not guilty in each case. 

John Sini Porti and David Porykali were jointly charged with abuse of office whilst employed in the Public Service as the Secretary and First Assistant Secretary of Finance of the Department of Defence, respectively. It was alleged that the accused paid an inflated and unjustified sum of K15.4m, above the known amount in a valuation report, inclusive of Goods and Services Tax, to Kitoro No 64 Ltd for land without a contract of sale or any other legally binding agreement, prejudicial to the rights of the Independent State of Papua New Guinea. Further, that Mr Porykali was told that the payment documents were not in order and directed the officer acting in his position to process the payment in any event. 

Held:

John Sini Porti

(1)	The accused was employed in the Public Service: s 188 of the Constitution and s 83A of the Criminal Code. 
(2)	The payment was not arbitrary for the reasons alleged. The decision to compulsorily acquire the land was a decision of the Department of Lands & Physical Planning. The fact that it did so for K14m having regard to the Valuer General’s valuation of K11m some three years earlier was not on its face unreasonable and was ultimately a decision for it.  GST of K1.4m should not have been paid on the compulsory acquisition but was done on the advice of the Secretary of the Treasury Department.
(3)	The payment was arbitrary because there was no proper assessment of the land to confirm its suitability to house the Long-Range Reconnaissance Unit (LRRU) for which purpose the accused sought to acquire the land in the first place. The decision was not formally made nor documented by the Defence Council nor approved by NEC.
(4)	The payment was not prejudicial to the rights of the State for the reason alleged, namely that the State paid for the land but did not acquire title to it. The accused was not responsible for that failure. Completion of the compulsory acquisition process was the responsibility of the Department of Lands.  
(5)	The payment was prejudicial to the rights of the State because it committed scarce public resources to the purchase of land which was arbitrary because there was no proper assessment or approval of it by the Defence Council and NEC.
(6)	The evidence failed to show that the accused wilfully abused his office. It failed to exclude the possibility that the accused believed that the purchase of the land next to the existing PNGDF air base was ideally suited to the relocation of the LRRU in line with the proposed expansion of the PNGDF under its White Paper, the upcoming South Pacific Games and APEC Summit and the recommendation of the PNGDF Commander. Whilst there was no formal decision by the Defence Council, two members of the Council agreed, and the third, the Minister for Defence, was copied in on the accused’s letters to Kitoro No 64 Ltd and to the Secretary for Lands.  The accused sought advice from the Secretary for Lands and the Secretary for Treasury. He referred to NEC 70/2012 directing the relocation of Murray Barracks and then set out why he was also seeking funding for the relocation of the LRRU in accordance with the expansion program outlined in the 2013 Defence White Paper.  In each case he copied in the Minister for Defence, Minister for Lands and Physical Planning, Minister for National Planning & Monitoring, Minister for Treasury, Secretary for National Planning & Monitoring, Secretary for Treasury and Commander, PNGDF. He approved payment upon advice from the Secretary for Lands that the land had been acquired by compulsory acquisition, the instruments had been executed and were in the process of gazettal, and upon advice from the Secretary for Treasury that K15.4m should be paid and that the funds would be replaced in the 2015 budget.

David Porykali 

(7)	The accused was employed in the Public Service regardless of whether or not he was on leave: s 188 of the Constitution; s 83A of the Criminal Code; Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112; State v Luma (2021) N8798.
(8)	The fact that the accused was overseas at the time of the alleged offence did not preclude criminal liability on his part given the nature of the allegation and having regard to ss 12 and 13 of the Criminal Code. 
(9)	The evidence failed to establish that the accused was told that the documentation in support of the payment was not in order or that he directed that the payment should be processed in any event.

Verdicts accordingly.

Cases cited
Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
The State v Raphael Kuandande [1994] PNGLR 512
Ikalom v State (2019) SC1888
Luma v State (2022) SC2249
Potape v State (2015) SC1613 
State v Luma (2021) N8798
State v O’Neill (2021) N9213  
State v Kombuk (2023) N10284

Counsel
C Langtry for the State 
F Kirriwom for John Sini Porti
E Tolabi for David Porykali 
 
DECISION ON VERDICT
	
1.	BERRIGAN J: The accused, John Sini Porti and David Porykali, are jointly charged with one count of abuse of office, contrary to s 92(1) of the Criminal Code (Ch. 262) (the Criminal Code), whilst employed in the Public Service as the Secretary and First Assistant Secretary of Finance of the Department of Defence (DOD), respectively.

2.	The indictment charged that they  “did and directed to be done, an arbitrary act namely, making a payment of [K15.4m] to Kitoro No 64 Ltd at an inflated and unjust sum above the known amount in the valuation report and inclusive of Goods and Services Tax and without a contract of sale or any other legally binding agreement, prejudicial to the rights of the Independent State of Papua New Guinea”.

Allegation

3.	The State alleged that Mr Porti accepted an unsolicited offer via letter dated 12 August 2014 for the purchase of land at Port 698 Milinch Granville Fourmile Port Moresby Volume 10 Folio 2392 (the land) from a company Kitoro No 64 Ltd (Kitoro) for K14m. On 13 September 2014 Mr Porti in the absence of Defence Council approval made a request to the Department of Lands and Physical Planning causing it to commence the process of compulsory acquisition (CA) under the Lands Act 1996 to issue a notice of CA pursuant to s 12 of the Act. The process was not concluded in accordance with the Act in that the notice was not gazetted in the National Gazette and there was no contract of sale executed between the State and Kitoro No 64 Ltd. There was no valuation done on the land in 2014. The Valuer General estimated the value of the land to be worth K9m in 2011. Goods and services tax is not normally included but was in this case.

4.	On 29 September 2014 Mr Porti approved the payment for the land signing the Requisition for Expenditure (Finance Form 3) as the section 32 officer and Mr Porykali instructed his subordinate Helen Tumul to process the claim. A Bank of Papua New Guinea cheque dated 3 October 2014 in the sum of K15.4m payable to Kitoro No 64 Ltd was raised and subsequently paid by the State. 

5.	Mr Porti did not have the administrative authority to accept the offer of sale and did not have the financial authority to approve payment for the land. He acted without the approval of the Defence Council and the National Executive Council. The State Solicitor was not consulted and no legal clearance was given by him to proceed with the transaction. The title of the property has never been transferred to the State or the Department of Defence and Mr Porti failed to ensure that the title was passed to the State.

UNDISPUTED FACTS

6.	Mr Porti holds a degree in surveying and a Masters Degree in Business Administration from the US Naval Postgraduate School. He had 30 years experience in the PNGDF prior to his appointment as Secretary in March 2012. He was a Lieutenant Colonel at the time of his subsequent discharge. 

7.	Mr Porykali is a certified accountant and a member of CPA PNG. He joined the DOD in 1999.  He was appointed First Assistant Secretary, Finance Services in December 2013.

8.	Kitoro became the registered title holder of the land on 3 December 2009. 

9.	A valuation report by the Surveyor General obtained by the company on 28 October 2011 valued the land at K9m. It reported that the land of 30.6 hectares was generally level and slightly rising towards the eastern and southern end. All normal town services were readily available and could be connected. Access was from a bitumen sealed road turning off from the main highway. Some area of the land was occupied by squatters. 

10.	On 18 October 2012 the National Executive Council (NEC) in decision NG 70/2012 approved the relocation of PNGDF Landing Craft Base and Murray Barracks to a new location outside of Port Moresby. For that purpose it approved the establishment of a project management team, approved funding of K50m and directed the Minister for Land & Physical Planning and the Central Provincial Government to assist in negotiations and registration of land: 

“1. noted the content of Policy Submission No. NG 41/2012; 
2. approved to relocate the PNGDF Landing Craft Base and Murray Barrack to a new location outside of Port Moresby;
3. approved the establishment of a project management team to coordinate and oversee the relocation of the PNGDF Landing Craft Base and Murray Barracks; 
4. directed the Minister for Land & Physical Planning to assign officers to work with the Project Management Team in the Conduct of Valuation, Physical Planning, Surveying, Land Lease and Registration of Land; 
5. directed the Central Provincial Government to assist in the negotiation and directed the Central Provincial Government to assist in the negotiation and facilitation of securing the new site;
6. approved funding allocation of K50m to facilitate the relocation of the Landing Craft Base and Murray Barracks including the purchase of land and some initial construction works on roads and other engineer services
7. directed the Minister for Treasury and Minister for National Planning & Monitoring to appropriate K50m in the 2013 Development Budget for Defence for the purpose of relocating PNGDF Landing Craft Base and Murray Barracks;
8.  approved the Defence Council to sell Defence Force Landing Craft Base and other non-core assets and negotiate concessional loan to fund the new Military Base and the new Landing Craft Base outside of Port Moresby;
9. approved that Defence Counsel and the Department of Lands & Physical Planning enter into financial negotiation with parties interested in acquiring PNGDF Landing Craft Base and Langcron and in acquiring or leasing of land and properties in Murray Barracks and all proceeds from the sale to be used for the purpose of developing the new site for relocation;
10. approved that the Defence Council and the Department of Lands & Physical Planning enter into financial negotiation with parties interested in acquiring or leasing of land and property in all other military bases including land reserve for military purposes throughout the country and all proceeds from the sale or lease to be used for the purpose of sustaining and developing the PNG Defence Organisation; and
11. agreed PNG Ports and the National Fisheries Authority were to have first option to purchase land at Langcron Naval Base and next to it, respectively.”	

11.	On 12 August 2014 Douglas Ure, Secretary, Kitoro, wrote to Mr Porti, Secretary for Defence, referring to the NEC decision made in 2012 and his belief that the PNGDF was under its White Paper currently seeking expressions of interest to relocate sections of the PNGDF. He offered to sell the land located immediately adjacent to the existing Defence Force ATS Unit at Jacksons International Airport Port Moresby for K14m via contract of sale. 

12.	On 13 August 2014 Mr Porti wrote to Mr Ure advising him that NEC Decision NG 70/2012 approved the relocation of Murray Barracks but that there were also plans for expansion in accordance with the 2013 Defence White Paper and that the land would allow relocation and expansion of the LRRU (the Long Range Reconissaince Unit) alongside the Air Transport Wing before the 2015 Pacific Games and 2018 APEC Summit. He hoped to secure the land with assistance from the Lands and Treasury Departments:

“The NEC Decision NG 70/2012 approved relocation of Murray Barracks. PNGDF has already identified land for this purpose but we also have plans for expansion of the force in accordance with the 2013 Defence White Paper which was launched by the Prime Minister, Honourable Peter O’Neill, which was endorsed by the NEC together with the National Security Police Paper 2013. 

One of the PNGDF’s key role and requirement is to be the First Responder to all the adversaries that presents our country, therefore, when we relocate Taurama (1RP1R) to Central Province, PNGDF wants to maintain significant operational capacity and capability within Port Moresby. 

Long Range Recon Unit will give this operational capability to the Capital City. Therefore, PNGDF requires this Land for LRRU expansion and presence in the city for counter terrorism to support activities in the City. 

Papua New Guinea Defence Force does not have any funds for purchase but it is a critical requirement to get this unit established relocated alongside with Air Transport Wing (ATW) before 2015 Pacific Games and before APEC 2018 so that it is strategically located to support those major events. I hope to write to the Lands and Treasury Department to possibly acquire for our need”.

13.	The letter was copied to the Minister for Defence, Minister for Lands and Physical Planning, Minister for National Planning & Monitoring, Minister for Treasury, Secretary for National Planning & Monitoring, Secretary for Treasury and Commander, PNGDF.

14.	On 13 August 2014 Mr Porti also wrote to Romilly Kila Pat, Secretary, Department of Lands & Physical Planning in similar terms seeking assistance and advice from both the Department of Lands and the Department of Treasury to purchase the land: 

“While the force is embarking on the growth, we are faced with the challenge of identifying the Land required to build specific Units that would be established in strategic sites to conduct their roles effectively. 

The NEC Decision No. 70/2012 has directed the relocation of Murray Barracks and Land has been identified and in the process of finalizing the procurement process. 

PNGDF has to be the First responder in all adversaries confronting the country at short notice. The (Special Forces Unit) LRRU based out of Goldie Training Depot is structured to provide the Ready Response capability. 

However, Goldie River is the training establishment and the Long Range Recon Unit (LRRU) has to be shifted out to allow the growth of the Unit and allowing the LRRU to grow and allow the flexibility to operate out of its own Barracks. This gives Goldie River to concentrate on training and administration of training related issues and allow the capacity to grow the force. 

As the Unit that is required to be deployed at a short notice it has to be located near the city and ideally close to the airport. 

The major events such as the 2015 South Pacific Games and 2018 APEC requires LRRU to be close to the city where it can respond easily. 

It is fitting that it co-locates with Air Transport Wing (ATW). Therefore, the land identified along the Jacksons air field adjacent to ATW known as Portion 698 Vol. 10 and Folio 2392 land areas of 37 hectares is more suitable for the PNGDF Long Range Recon Unit (LRRU). 

This location for the PNGDF Unit has many advantages for its purpose. PNGDF does not have any funds budgeted for this land, despite our interest. Therefore we are seeking the support for possible financial assistance and advice in procuring this Land for military purposes and are asking the National Treasury Department to make available K14 million from this year's National Budget to be paid to Kitoro No, 64 for the said Portion of Land known as Portion 698 Vol. 10 Folio 2392 for the sole usage by the PNG Defence Force relocation and expansion program approved under the NEC Decision No. 70/2012 and the Defence White Paper of December 2013”. 	

15.	Copied in were the Minister for Defence, Minister for Lands and Physical Planning, Minister for National Planning & Monitoring, Minister for Treasury, Secretary for National Planning & Monitoring, Secretary for Treasury and the Commander, PNGDF.

16.	On 5 September 2014 a Notice of Acquisition under s 12(1) of the Land Act 1996 was issued by Secretary Kila Pat, on behalf of the Minister for Lands and Physical Planning, declaring that the land had been compulsorily acquired for the defence or public safety of Papua New Guinea. 

17.	By letter dated 10 September 2014 Mr Vele, Secretary for Treasury, wrote to Mr Porti, stating that he had been advised by Secretary Kila Pat that the Department of Lands had successfully compulsorily acquired the land. He attached copies of the Notice and Certification for acquisition and directed payment of the agreed price of K14m plus GST which would have to be paid from the funds earmarked for the Land Purchase and Relocation Program: 

“The land acquisition and relocation arrangements outlined in your letter specifies a negotiated amount of K14.0 million for the acquisition of the land described as Portion 698, Granville, Moresby. I understand that this internal relocation arrangements were spurred from the NEC Decision No. 70/2012 which I am very conscious of and believe was adequately budgeted for under the Operational Budget for the periods 2013 leading to 2015. 

As you are no doubt aware the initial roll out phase of the Defence Land Purchase Relocation Program commenced in 2013 with K10 million being transferred to Defence for that purpose. 

In this year’s (2014) Budget, Treasury appropriated K25 million for the Land Purchase & Relocation Program and this whole amount has already been fully transferred to the Department of Defence. The total amount thus far that has been appropriated is K35 million leaving a balance of K15 million from the K50 million as per approval by NEC (NEC Decision 70/2012). The balance of K15 million will be provided for in the 2015 Budget.

I am advised by Secretary Kila Pat that the Department of Lands and Physical Planning has successfully compulsory acquired the land as per your arrangements and at the agreed purchase price of K14 million (exclusive of GST) which now remains to be settled. I attach copies of the Notice and Certification. As such, I therefore kindly direct that the Department of Defence use K14 million (plus GST which will also have to be paid) from the K25 million earmarked for the Land Purchase and Relocation Program to settle the acquisition of Portion 698, Granville. 

The Department will ensure that it is replaced in the 2015 Budget so that you can fulfill the other operations also planned for the Defence Relocation Program. 

Legal Counsel for the Vendor, Young & Williams Lawyers have also written to me to state that now that this land has been compulsorily acquired, payment must be made as a matter of urgency or they will commence legal proceedings against the State. I am sure you will understand that this is not the best outcome for the State. 

I therefore kindly request that this payment be made as a matter or urgency so as not to bring about legal consequences. Finally let me take the time to commend you and the Department of Defence for your aggressive efforts in pursuing and implementing the NEC Directives under NEC Decision No 70/2012 and consequently embarking on a key priority highlighted within the Departments recent White Paper Policy in such a timely manner.” 

18.	The letter was copied to the Minister for Defence, Minister for Lands and Physical Planning, the Secretary for Lands and Physical Planning and the Commander, PNGDF.

19.	On 19 September 2014 Greg Sheppard, Young & Williams Lawyers, wrote to Dairi Vele, Secretary, Department of Treasury, informing that they acted for Kitoro and were instructed that Kitoro had reached agreement with the Department of Lands and Defence that the State would acquire the land for K14m and that such payment would be made upon acquisition. The Minister of Lands acquired the land on 5 September 2014 pursuant to a notice under s 12(1) of the Land Act. Payment was sought at the earliest failing which Kitoro would commence immediate Court proceedings against the State for breaching the terms and conditions of the purchase. 

20.	On 29 September 2014 Mr Kila Pat wrote to Kitoro, copied to the Secretaries for Defence and for Finance, advising that all necessary instruments for acquisition had been executed by him as the Delegate of the Minister and are in the process of being gazetted and requesting settlement of the agreed purchase price:

“I refer to the above and inform you that the State had acquired Portion 698 Milinch of Granville, Fourmil Moresby, National Capital District for the relocation of the PNG Defence Force at Murray Barracks as approved under NEC Decision No. 70/2012 for an agreed price of K14 million exclusive of Goods and Services Tax. 

All necessary instruments for the above acquisition were duly executed by me as the Delegate of the Minister for Lands & Physical Planning and are in the process of being gazetted in the National Gazette pursuant to Section 12 (1) of the Land Act 1996. 

Attached are copies of the executed instruments for the acquisition for your perusal and ease of reference. Please proceed to make settlement of the agreed purchase price.”	
 
21.	The letter dated 10 September 2014 from the Secretary for Treasury was received by the Office of the Secretary, Department of Defence on 29 September 2014. 

22.	On the same day Mr Porti approved as section 32 officer the payment of K15.4m to Kitoro. Attached to the FF3 and FF4 were the: letter dated 10 September 2014 with a handwritten note “DEPSEC, FAS Finance (1) Process payment of K15,400,000 as per Invoice No 1-9-14” signed by Mr Porti; letter dated 10 September 2014 from the Department of Treasury to Secretary DOD; letter dated 12 August 2014 from Kitoro to Secretary, DOD; letter dated 13 August 2014 from Secretary, DOD to Secretary, Department of Lands and Physical Planning; letter dated 13 August 2014 from Secretary, DOD to Kitoro; letter dated 19 September 2014 from Young & Williams to Secretary, Department of Treasury; letter dated 29 September 2014 from Secretary, Department of Lands & Physical Planning to Kitoro, Valuation Report dated 1 October 2011; and a tax invoice dated 1 September 2014 from Young & Williams.  

23.	Bank records show that K15.4m was deposited to Young & Williams Account on 6 October 2014. K15.1m was deposited to the account of Kitoro on 10 October 2014, to which Tim Neville was the sole signatory. 

24.	 On 27 February 2015 Mr Porti wrote to Dr Fabian Pok, Minister for Defence, tendering his resignation as Secretary, DOD, to contest the Pomio by-election, which had been announced the week before.   

25.	On 10 March 2016 Young & Williams wrote to the State Solicitor, Daniel Rolpagarea, on behalf of Kitoro, referring to a letter dated 9 March 2016 from the DOD. The land “has already reached settlement but we are yet to formalise the conveyance transaction. We have undertaken to complete the conveyance transaction in consultation with your office. Please find attached our Draft Contract of Sale for your perusal and comments”. Neither DOD’s letter nor the draft contact, other than its cover page, is produced.

26.	To date DOD has not been registered as the title holder and has not taken possession. 

STATE CASE

27.	Benjamin Samson has been the Secretary for Department of Physical Land and Planning since November 2019. The Minister for Lands may acquire land by agreement or compulsory process: s7, Land Act. CA takes place in accordance with ss 12 to 16, following the issuance of a notice to treat, which may be dispensed with pursuant to a certificate under s 13(6). The Minister may acquire land after the expiration of two months following the service of a notice to treat or at any time after a certificate has been issued under s 13(6) by notice in the National Gazette declaring that the land is acquired by CA for a public purpose specified in the notice, upon which any interest in the land is converted to one for compensation. 

28.	Only one valuation report will be obtained by the Department and that will be from the Valuer General because the land is being acquired for government purposes. It is not possible to say how recent the report should be. It may be a good idea to get a reassessment if the report is older than two years but it depends on the circumstances. The Valuer General’s report is submitted to the Secretary for Lands. It is only an opinion which the Secretary uses to make an offer to the landowner and to start the negotiation process to finalise the amount to be paid in compensation. A deed of release is usually executed upon presentation of payment and delivery of title by the title holder. 

29.	Section 25 provides that the Minister may enter into an agreement with the owner of land as to the amount of compensation to which the owner will be entitled if the land is acquired by compulsory process under this Act within a time specified in the agreement. In his experience there was never any formal documentation to implement s 25, just an exchange of correspondence between the Lands Department and the landowner. 

30.	Payment for compensation is made according to where the funds are. If parked at Lands, it will be lands, but in this case it was DOD and so the Lands Department facilitated the documentation and payment was done by DOD. After payment is done the land is registered as State land under s 16 by the Registrar of Titles. The title must be delivered up. The State Solicitor may be involved depending on where the money is parked. If at Lands it does not normally seek clearance but if parked outside Lands then the department should seek advice from the State Solicitor. 

31.	He was not aware of Portion 698 until about 2021 when the Defence Secretary asked how to get the land from Kitoro. It appears from the file that the process was not properly concluded and the title is still registered in the name of Kitoro. If it was a conveyancing process then title should have been delivered up for registration. GST has never been charged on CA. He has sighted the CA Notice but a copy published in the National Gazette is not on file. 

32.	Under cross-examination he agreed that it was incumbent on the Lands Department to complete the CA process in this case. If DOD had decided to go into a commercial agreement then the parties should have done a commercial transaction but because DOD approached the Lands Department it decided to invoke the CA process. In either case the DOD should have been registered as title holder. The valuation report prepared in 2011 was still relevant and could be used in 2014. It is only a guide to the parties to negotiate on. 

33.	Hari John Akipe has been the Secretary for the DOD since 2019. Sections 200 and 201 of the Constitution establish the PNGDF which is subject to the superintendence and control of the National Executive Council, through the Minister responsible for the Defence Force. The Commander is the principal military adviser and the Secretary is the principal civilian adviser to the Minister on matters relating to the Defence Force. The Defence Act establishes the Defence Council which comprises the Commander, the Secretary and the Minister, its chair: s7, Defence Act. The function of the Council is to have control of the Defence Force through the Commander, supervise the administration of the Defence Force and the Department and determine terms and conditions of members: s8.  

34.	In 2014 the Secretary’s financial limit as s 32 officer was K500,000. Anything above that was required to go through the Central Supply Tenders Board (CSTB) or for amounts greater than K10m to NEC. For procurement of land and other assets there is a senior defence committee made up of colonels and divisional heads, chaired by the Deputy Secretary of Defence and the Commander’s Chief of Staff who conduct an assessment and send it up to the Defence Council. The engineering division will assess the capability of land and other assets before sending to the Defence Council. The Defence Council does not have financial powers but will vet and make an order before sending it to CSTB or NEC. If approved by CSTB or NEC the Secretary will seek assistance from the State Solicitor for the drafting of contracts for acquisition.  Payment is only made once the procurement process is completed. Land has not usually been acquired by CA but if it is that advice should come from the Department of Lands.

35.	Upon being appointed he became aware that the PMFA had not been complied with and the CA process had not been completed. He asked Lands to complete the process but there was confusion as to whether the CA process was used or normal conveyancing. There was no CA certificate or gazettal notice or title. 

36.	NEC 70/2012 did not refer to moving the LRRU. The LRRU is a special force, an elite combat ready unit, to be deployed at short notice. The Secretary has no authority to move a unit without Defence Council and NEC approval because it affects the security of the country. There was no assessment of the land as fit for that unit. The transaction was completed at speed but the same speed was not applied to completing the process. The Secretary for Treasury had no authority to direct Secretary for DOD to pay the monies. He could only advise.  There was no reimbursement of the money in the 2015 budget. 

37.	The expenditure has brought DOD into disrepute. Murray Barracks and Landing Craft Base have not been relocated. DOD has not occupied the land because it does not have title. The title remains with the landlord. DOD has not taken any civil proceedings against Kitoro or Young & Williams to surrender title.    

38.	Helen Tumul has been with DOD since 1989 and is currently Assistant Secretary, Commercial Support Section. At the time she was Acting Assistant Accountant. A couple of days earlier Mr Porykali, her immediate supervisor, went on holiday to Australia and told her orally to act as FAS Finance.  Mr Porti brought the claim to her office and told her to process it. It was important and urgent. It was for the security of the South Pacific Games in 2015 and APEC 2018 and soldiers need to stay close to the airport and so everything was okay for DOD to process it. She quickly rang her boss Mr Porykali to get advice and he said you can process it, he has approved it. So she wrote on the back of the FF3, “OIC Claims to process as approved by the Secretary as the s 32 officer”. She confirmed that the correspondence set out above was attached. She was still holding on to the claim when Mr Porti came back again and told her to process it quickly, so she told her subordinates to process it. She was holding on to the claim because some documents were not there so she wanted to clarify for herself but because her superiors instructed her she paid. Normally they would see an Authority for Pre-Commitment from CSTB or from NEC for amounts above K10m. She did not see a Defence Council submission to CSTB and NEC or a legal clearance from the State Solicitor. 

39.	Makori Bal, certifying officer, confirmed that the documents referred to above were attached. Hirima Haro, bank reconciliation clerk, recalls signing the cheque and handing it over to the paying officer, whose name she cannot recall, for delivery to the Secretary in accordance with normal process. She saw the Secretary in the vicinity. 

40.	Doreen Kivung Joel, First Assistant Secretary, Human Resources, and Luka Gadd, Human Resources Officer, DOD said that as First Assistant Secretary, Mr Porykali should have sought leave in writing from the Secretary and recommended an acting appointment, for endorsement. There was no record that Mr Porykali was on approved leave in September 2014.

41.	Roslyn Gwaibo, Deputy State Solicitor, oversees the Property Unit, amongst others. The State Solicitor is the legal advisor to all State agencies. Preferably they write to obtain advice. DOD could have sought legal advice but did not. The payment can be agreed under s 25. It should be in writing. There should be at least three valuations at the time of acquisition. She was not able to comment on whether GST should be included but she has never seen it included before. The Land Registration Act is clear that only the Minister for Lands can acquire land for the State so any government agency has to come through the Department of Lands. Ideally Lands will take care of everything but whether they take part or not the department responsible will provide the budget. Based on the information provided in the letter to the State Solicitor by the National Fraud and Anti-corruption Directorate (NFACD) in 2021 the State Solicitor was not able to say that the transaction was completed. 

DEFENCE CASES
42.	John Sini Porti gave evidence that in August 2014 the Commander, PNGDF, Major Gilbert Toropo, referred Tim Neville to his office. They were aware of the NEC decision and offered to sell their land. He told them to reduce their offer to writing, which they did. 

43.	He referred the matter to the Secretary for Lands because land was the responsibility of that Department and to the Secretary for Treasury because DOD did not have money in the budget. It was necessary to purchase the land for the relocation of the LRRU in preparation for the 2015 South Pacific Games and APEC 2018. It was the Commander’s intention to relocate the LRRU from Goldie to the airport. It was an ideal location being next to the airport. There was an NEC Decision on Land Corp and Murray Barracks but the decision to occupy Portion 698 was based on the White Paper, 2013, in particular acquisition of land, air, maritime and joint agency systems that enhance the defence of PNG. 

44.	He approved payment upon the response from the Treasury Secretary which stated that the land had already been acquired and Kitoro was threatening to sue. Monies were put in the 2014 budget under the Treasury vote and not under DOD. 

45.	There was no Defence Council decision. He did not think it was necessary because he was implementing an NEC decision and the White Paper which had already been signed by the Prime Minister, Minister, and the former Commander. It was the Commander’s prerogative and decision to purchase the land. The purpose of the monies released pursuant to NEC 70/2012 was to relocate Murray Barracks and Landing Base but also to purchase other pieces of land to prepare for relocation. The decision also talks about land outside Port Moresby not only Murray Barracks and Landing Base. 

46.	He did not take the FF3 and FF4 down to the Finance Division. He called the Deputy Secretary and they called Ms Tumul to his office when he received the letter as was his usual practice. His office is in the same building as headquarters which is about 500 metres or 1 km away from the Finance Division. He called them to his office because of the letter he received from Mr Vele and he footnoted them to process payment as per the invoice. He did not pick up the cheque. That was a lie. He had staff for that. Mr Porykali was on leave at the time. He thinks he approved his leave verbally. He cannot recall if there was a recommendation as to who was to act in his place. 

47.	Retired Major General Gilbert Toropo was called by Mr Porti. He was appointed Chief of the Defence Force on 14 January 2014. Tim Neville came to his office and enquired about whether PNGDF could utilise land owned by Kitoro. They were preparing for the South Pacific Games and APEC Leaders Summit and he was looking at land located close to the city where he could position his security force to support the two events and it appeared to him a good location. Negotiation was not within his jurisdiction so he directed them to the Secretary’s office. Mr Porti subsequently called him to confirm and he told him that it would be good if they had any opportunity to acquire the land for the two major events. The 2013 White Paper directed the PNGDF to grow the force to 10000 by 2030 and finding land was a challenge. When he saw this land it was an opportunity to put one of the major units. 

48.	He had no idea what happened to the land because he was not involved in the process and had no clue about where the money came from. His role was to implement government policy in accordance with his Constitutional mandate. Defence Council orders were not necessary as once NEC made the decision to develop and grow the Defence Force that decision had to be implemented. The Commander is the advisor in all military matters. 

49.	LRRU is the elite unit within PNGDF. During its raising in 1996 they did not find land so it was parked at Goldie River with the recruit training depot. Two major units were occupying that base. It was his intention to find a home for the LRRU and when that land became known to him it was the ideal spot to free up LRRU which was also inhibiting full training capacity of recruits at Goldie. In addition, it would establish LRRU close to the city so it could respond to any terrorism activities or crisis close to the city. This was in line with two major events because their partners, Australia, New Zealand and others, were willing to assist with base establishment. 

50.	David Porykali says that on 29 September 2014 he was on three weeks approved recreational leave in Melbourne, Australia when Ms Tumul called him at night and told him she had a claim approved by the Secretary. She called him to seek his advice on the claim. He told her that if everything was in order in line with the PFMA she can process it, if some documents are missing, refuse the claim and write back and provide her advice as to why. She did not tell him that the documents were not in order. 

51.	He wrote to the Secretary in early 2014 seeking approval for leave, which was approved. He then wrote to appoint Helen Tumul as Acting FAS and Ms Haro as OIC. As for the FF3, Ms Haro should have signed not Ms Tumul, she should only have endorsed at the back of the claim. Ms Tumul should not be signing the FF4 as financial delegate. The financial delegate was Ms Haro. He could not take leave if Ms Tumul was not appointed. He is being targeted because he was dismissed when he complained about misconduct by former Secretary Asi. He has since been reinstated by the Courts. 

STATE SUBMISSIONS

52.	The State submits that Mr Porti did an arbitrary act by approving the expenditure whilst Mr Porykali directed the arbitrary act to be done by his verbal direction to Ms Tumul and thereby aided, counselled or procured the offence.

53.	Mr Porti’s conduct was arbitrary because there was no legally binding agreement in accordance with the PFMA or ss 25 or 26 of the Land Act, the purchase was not supported by three valuation reports as at the date of acquisition, the payment included GST, and therefore the sum was inflated and unjustified.  

54.	Mr Porti had no administrative authority to make the decision to acquire the land. It was the Defence Counsel that had that decision making power under s 8(b), Defence Act not the Secretary. The Commander had no power to move units. That was the responsibility of the NEC under s 201(2), Constitution.  Mr Porti was aware there was no money for the purchase and asked Treasury to make available K14m from the budget for use under NEC 70/2012 and the White Paper. NEC 70/2012 only speaks of moving Murray Barracks and the Landing Craft base. Neither the White Paper or NEC 70/2012 referred to moving the LRRU to or that piece of land. Legal clearance was not sought from the State Solicitor. He did not seek legal advice about the threat to sue. He did not seek NEC permission to pay.  

55.	Mr Porti must have known that the process was not complete because the letter stated that the instruments for acquisition were “in the process of being gazetted in the National Gazette”. The direction to pay came from the Secretary of Treasury who did not have power to direct payment. 

56.	The State was prejudiced because the land is still in the name of Kitoro and is occupied by settlers and the State paid a large amount of money and did not get anything in return. DOD suffered financial loss and reputational damage. Funding of NEC 70/2012 was halted and the relocation of Murray Barracks and Landing Craft base never eventuated. LRRU is still at Goldie Barracks. 

57.	Ms Tumul was Acting FAS Finance when she received the claim but she was not formally appointed to that role in accordance with s 38, PFMA. There is no independent written evidence that Mr Porykali was on leave.  Mr Porykali wilfully allowed a breach of the PFMA. He was specifically told that the procurement documents were not in order yet he instructed that payment be processed. He ought to have known he was abusing his power. 

DEFENCE SUBMISSIONS
Porti

58.	The unsolicited offer was not made to Mr Porti. It was made to Commander Toropo and it was he who referred Kitoro to Mr Porti. The act was not arbitrary but a considered decision to fulfil government policy. It was a unique opportunity to secure land strategically located near an existing military establishment, the PNGDF Air Transport Wing, and an airport as well as being close to the city. It was an ideal location for the relocation of the LRRU that had been operating out of the Goldie River Training Depot. The decision considered that the country was to host the upcoming Pacific Games and APEC and the need to have the LRRU strategically located to respond to threats or emergencies. That is reflected in the letters to Mr Ure and the Secretary for Lands and the accused specifically referred to the NEC Decision 70/2012 and the Defence Force White Paper.  

59.	As for the submission that Mr Porti exceeded his financial limit, the State have not produced any documentary evidence to support that assertion. None of the officers who processed the claim raised any concerns with Mr Porti at any stage. The accused believed that he was authorised to make payment by virtue of the instructions received from the Secretary for Treasury and the funds were coming from the Treasury’s budgetary appropriation for the DOD purchase and relocation activity. It was Mr Vele, Secretary for Treasury, who directed the payment of GST. 

60.	There was no contract of sale because there was no need for one. The land was acquired by CA under the Land Act. That responsibility vested in the Minister for Lands or his delegate. The State was entitled to acquire the land for military purposes and that was initiated by the Secretary for Lands as evidenced by his letter dated 29 September 2014 to Kitoro which attached a notice of acquisition under s 12(1) dated 15 September. There was no need for a tender process. By virtue of s 14, Land Act Kitoro’s interest was converted into a claim for compensation. This was also the understanding of Kitoro’s lawyers as expressed in their letter to the Secretary for Treasury dated 19 September. 

61.	The act was not prejudicial to the rights of the State. The Defence White paper represented government policy and the agenda to build the Defence Force to 5000 by 2017 and 10000 by 2030. In order to do so it was necessary to relocate the LRRU so to enable Goldie to grow the force. This was reflected in the accused’s letter to the Secretary for Lands. The accused was facilitating a request by the then Commander of the Defence to acquire a piece of land that had been identified as suitable. 

62.	As for the fact that the CA process was not completed, that responsibility vested in the Minister and Secretary for Lands. The current Secretary for Lands was asked if his predecessor failed to properly complete the process and he agreed. They failed to complete which includes publishing in the gazette and issuing a certificate of occupancy to DOD. The State is entitled to the land and the process must be completed. The failure by the Department of Lands is no fault of the accused. That responsibility vests solely with the Minister for Lands or his delegate. 

63.	As for the fact that the price paid was greater than the valuation, the valuation is only a guide, and it was made three years earlier and it is reasonable to infer that the land appreciated in that time. It was for the Minister and Secretary for Lands to conduct any further valuation if required.

Porykali
64.	Defence counsel submits that Mr Porykali cannot be charged when the principal Ms Tumul has not been charged. The evidence establishes that Mr Porykali was outside the country and the indictment should be struck out. Section 12 of the Criminal Code applies. The Court has no jurisdiction to determine a charge against a person who allegedly committed the offence whilst overseas. The indictment should be struck out pursuant to s 37, Constitution because Mr Porykali was committed under s 91 of the Criminal Code and the State have now charged him under s 92 and the accused had no opportunity to defend himself at the District Court with respect to s 92. All powers were conferred on Ms Tumul and he was on leave. Ms Tumul issued the cheque upon Mr Porti’s direction not Mr Porykali’s, as reflected in her record of interview. 

ABUSE OF OFFICE 

65.	To establish the offence of abuse of office contrary to s 92(1) the State must establish beyond reasonable doubt that the accused:

a.	Whilst employed in the Public Service;
b.	In abuse of the authority of his or her office;
c.	Did or directed to be done any arbitrary act; 
d.	Prejudicial to the rights of another.

State v Luma (2021) N8798 at [144]; affirmed Luma v State (2022) SC2249.  

66.	It is not necessary for the State to establish dishonesty or a conflict of interest to establish the offence under s 92(1), although those matters may be relevant to establishing the offence: State v Luma at [230]; affirmed Luma v State at [35] to [38].  It is not necessary for the State to prove gain for the purposes of s 92(1).  Gain is a matter to be established in aggravation for the purposes of s 92(2): State v Luma at [230]; affirmed Luma v State at [36].

67.	The State must establish that the accused wilfully abused the authority of his office. In addition, the abuse must be so serious that it is worthy of condemnation and criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.  It must fall so far below acceptable standards as to amount to an abuse of the public’s trust in the officer holder: State v Luma at [154] to [161] applying R v Quach (2010) 201 A Crime R 522; Attorney General’s Reference No 3 of 2003; R v Chapman [2015] 2 Cr App R 10 adopted; R v Boulanger [2006] 2 SCR 49; and Potape v State (2015) SC1613 considered; affirmed Luma v S at [31]; adopted S v O’Neill (2021) N9213 at [28]. 

CONSIDERATION - PORTI

Employed in the Public Service 
  
68.	I am satisfied beyond reasonable doubt that Mr Porti was employed in the Public Service. He was Secretary of the DOD, a State Service established under or by authority of Section 188 (Establishment of the State Services) of the Constitution for the purposes of s 83A of the Criminal Code; see also Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112.

Did or directed to be done any arbitrary act

69.	An arbitrary act is one that is not based on a reason, system, or plan, or is unfair or done using power without restriction or without considering other people:  S v Luma at [171]; S v O’Neill at [38]. 

70.	There is no dispute that Mr Porti approved the payment of K15.4m to Kitoro. I am not satisfied beyond reasonable doubt that the payment was arbitrary for the reasons submitted by the State, namely that there was no legally binding agreement, the acquisition was not supported by three valuation reports and the price included GST.

71.	There were anomalies but I do not agree that there was no legally binding agreement. Neither the letter from the State Solicitor in November 2021 nor Ms Gwaibo’s opinion based on that letter are determinative. Ms Gwaibo was an impressive witness but as the letter from the State Solicitor makes clear it is based on the National Fraud and Anti-Corruption Directorate’s (NFACD) letter of August 2021 which was not detailed, provided few if any documents, and was primarily concerned with ascertaining whether the State Solicitor had authorised the particular transaction, and generally as to the process to be followed. 

72.	Given the offer by Kitoro there was no need for the land to be acquired by CA but on its face the purchase was for defence or public safety. The amount to be paid upon CA is a matter that can be agreed with the vendor under s 25, Land Act and on Mr Samson’s evidence that is usually done via correspondence. There is no need for a contract of sale in the context of CA but a deed of release should have been executed upon payment. Its purpose is to release the State from any further claims. But it is not required for the State to obtain title. That takes place in accordance with the Land Act, namely the publication of the notice of CA in the National Gazette pursuant to s 12(2). Similarly, whilst Kitoro should have surrendered its copy of the title upon payment the State does not require the vendor’s copy of title for registration, it is surrendered for other reasons. 

73.	It does appear that the notice of acquisition was not published in the National Gazette and the CA process was not formally completed albeit the State failed to produce any evidence from the Government Printing Office to confirm that fact. Nevertheless, there was an offer by Kitoro, the execution of a notice of CA by the State, acknowledgement by Kitoro’s lawyers that CA had taken place and demand for payment as a consequence, following which payment was made into Kitoro’s bank account and the monies spent.  Of course that is binding.

74.	It is not, however, for the Court to give advice to the State as to how to finalise the matter. Nor is it necessary to determine whether there was in fact a legally binding agreement or a completed CA process for the purposes of the case against the accused. The decision to proceed via CA was not Mr Porti’s decision, it was a decision by the Lands Department.

75.	Nor do I agree that there was no proper valuation. There is no statutory requirement for three valuations. I accept Mr Samson’s evidence as a matter of common sense that the preferred valuation from the State’s perspective is obtained from its own valuer, the Valuer General. The fact that the Lands Department proceeded to acquire the land for K14m having regard to a valuation of K11m some three years earlier is not, on its face, unreasonable. If the Lands Department was concerned it should have obtained a further valuation.

76.	It seems clear on Mr Samson’s evidence that GST should not have been charged on a CA. The fact that it was included in the first place and the fact that it does not appear from the bank statements of either Young & Williams or Kitoro to have been paid to the IRC is concerning. Having said that, the decision to charge GST was not Mr Porti’s but a decision by the Treasury Department, which is the government’s principal financial advisor.

77.	I am, nevertheless, satisfied beyond reasonable doubt that the payment was arbitrary because the decision to purchase the land upon which it was based was arbitrary. 

78.	Perhaps the land was ideally suited for the reasons given by Major Toropo and Mr Porti. The PNGDF was growing to a much larger force. Goldi needed to be freed up for training. The LRRU was an elite force that needed its own location, close to the city, particularly given the plans to move Murray Barracks and the Landing Craft Base out of NCD, and given the impending South Pacific Games and APEC summit. According to the valuation report it was a large piece of land, located adjacent to an existing PNGDF air facility with sealed road access and access to amenities.

79.	Having said that, there was no proper assessment of the land to confirm that it was suitable for the above reasons. There was no inspection of the land by an appropriate committee or division with the PNGDF or by anyone. There was no assessment of the cost of relocating the LRRU and no plan for it. Nor was a decision formally made or documented by the Defence Council or any of its members.  

80.	This was not a military decision. It was not a decision for the Commander alone and he did not make such a decision. He referred the proposal to the Secretary albeit with a strong recommendation.

81.	The NEC Decision did not refer to the LRRU and the White Paper was a policy paper. Even assuming that the relocation of the LRRU was consistent with those policy documents in general terms they did not authorise the relocation of the LRRU or the purchase of this or any particular piece of land. It appears that a decision by the Defence Council and the NEC was necessary to approve the relocation of the LRRU and to give the Secretary authority to approve the payment. 

Prejudicial to the rights of the State

82.	An act is prejudicial to the rights of another person if it is detrimental, harmful or likely to harm those rights: State v Kombuk (2023) N10284 at [23].

83.	The payment was not prejudicial to the rights of the State for the reason alleged by the prosecution, namely that the State paid for the land but did not acquire title to it. As above, it is not clear why the State has not sorted the title issue out yet but critically, the prosecution has not proven that Mr Porti is responsible for that failure. That was the responsibility of the Department of Lands.  

84.	I am nevertheless satisfied beyond reasonable doubt that the payment was prejudicial to the rights of the State because it committed scare public resources to the purchase of land which was arbitrary for the reasons outlined above. 

In abuse of the authority of his office
85.	There is no dispute that Mr Porti approved the payment in the exercise of his authority as the Secretary of the Department. The essential question is whether he did so in a wilful abuse of that authority, and, if so, whether the abuse was so serious it warrants criminal punishment? 

86.	Intention is a question of fact which may be inferred by examining the accused’s conduct prior to, at the time and subsequent to the act constituting the offence: The State v Raphael Kuandande [1994] PNGLR 512; Ikalom v State (2019) SC1888.

87.	A failure to comply with procurement and other requirements may support an inference that a person acted in a wilful abuse of office but such failings of themselves will not normally be sufficient to establish wilful abuse.   

88.	The totality of the circumstances – the speed with which the accused acted to accept the offer by Kitoro, the failure to properly assess the land, formally record the decision, and his subsequent inaction are perhaps suspicious but the State has failed to establish beyond reasonable doubt that he acted in a wilful abuse of the authority of his office for the following reasons. 

89.	There is no evidence to show that Mr Porti was motivated for personal gain or that he had any relationship with Kitoro, its shareholders or directors. 

90.	It was Major Toropo who referred Kitoro to Mr Porti and it was on his recommendation that the request for assistance to purchase the land was made. 

91.	Whilst there was no formal assessment of the land, the State has failed to show that the accused did not believe that the purchase of the land next to the existing Defence air base was not ideally suited to the relocation of the LRRU in line with the proposed expansion of the PNGDF under its White Paper, the upcoming South Pacific Games and APEC Summit and the recommendation of the Commander.

92.	Whilst there was no formal decision by the Defence Council, two members of the Council agreed, and the third, the Minister for Defence, was copied in on Mr Porti’s letters to Kitoro and to the Secretary for Lands.   

93.	Whilst the accused did not seek advice from DOD lawyers or the State Solicitor, he wrote to the Secretary of the Department of Lands on 13 August 2014 seeking advice, which is the State agency responsible for such advice. He copied in the Secretary for the Department of Treasury. He referred to NEC 70/2012 directing the relocation of Murray Barracks and then set out why he was also seeking funding for the relocation of the LRRU in accordance with the expansion program in accordance with the 2013 Defence White Paper.  

94.	Mr Porti did not conceal the proposed purchase. In each case he copied in the Minister for Defence, Minister for Lands and Physical Planning, Minister for National Planning & Monitoring, Minister for Treasury, Secretary for National Planning & Monitoring, Secretary for Treasury and Commander, PNGDF. 

95.	He approved the payment on 29 September 2014 upon advice from the Secretary for Lands that the land had been acquired by CA, the instruments had been executed by him as Secretary of Lands and were in the process of gazettal, and upon advice from the Secretary for Treasury that payment should be made and that the funds would be replaced in the 2015 budget.

96.	The State’s evidence about what allegedly happened on 29 September does not take the matter any further. There was some suggestion by Ms Tumul that the accused put pressure on her to process the payment. For the reasons outlined below I exercise some caution with respect to her evidence. In addition, she initially said that Mr Porti came to see her twice to process the payment that day and was also there to collect the cheque. Ultimately her evidence about 29 September was not clear and she later admitted that she did not see him at the time the cheque was collected, which was in any event several days later. 

97.	As for Ms Haro, she said that the Secretary collected the cheque but then said it was the paying officer who handed the cheque over, could not recall the paying officer’s name, and did not see the accused collect the cheque. Her memory was generally poor and she could not recall if the documents were in order or not. 

98.	Mr Porti is found not guilty.

DAVID PORYKALI

99.	I reject the submission that the indictment must be quashed because the accused was not committed for trial for the offence under s 92 but for one under s 91. The submission is misconceived, made too late and fails to recognise that the reference to s 91 in the notice of committal is a clear typographical error. Moreover, the Public Prosecutor or a State Prosecutor may indict on any offence the evidence appears to warrant: s 526, Criminal Code.

Employed in the Public Service

100.	The State proceeded on the basis that Mr Porykali could not be convicted of abusing his office if he was on approved leave. It sought to establish that he was not on approved leave and that no formal appointment was made of Ms Tumul as Acting FAS.

101.	I cannot find that the accused was not on approved leave. I am not confident that his human resources file is complete. If it was then then the absence of an approved application for leave would tend to establish that he was not on approved leave. Mr Porykali’s file, however, contains very few documents in general terms and no documents at all for 2014.  The State produced a copy of a minute dated 30 June 2014 seeking approval for Ms Tumul to act for four days whilst he took planned sick leave. That document was produced through Ms Tumul and not from the HR file. It follows that if it is missing from the HR file then it is possible that other documents are also missing from the same file, including his application for extended recreational leave to Australia.  

102.	It does not matter, however, whether Mr Porykali was on approved leave or not. The accused was employed in the Public Service as the FAS – Finance and regardless of whether or not he was on leave he could still abuse his office. It is not necessary to consider the issue in detail but see Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112 at [32] and State v Luma at [146] et seq for a discussion of principles generally. 

Did an arbitrary act

103.	Counsel submits that Mr Porykali cannot be convicted of committing the offence which occurred whilst he was overseas. The issue was first raised prior to the trial and was rejected at that stage on the basis that was a matter for the trial, both as to any evidence about where Mr Porykali was at the time of the alleged offence and the legal effect, if any, of that. 

104.	A similar argument was raised at the close of the State’s case. That application was also refused. No clear evidence was led about where the accused was during the State’s case. Ms Tumul and Mr Haro’s evidence that the accused was in Melbourne was hearsay. The only other reference to the accused being in Melbourne in the State case was in the accused’s record of interview. The weight to be given to such an assertion is limited and properly to be considered at the close of all the evidence. 

105.	The accused gave evidence at trial that he was overseas. Counsel submits that he should be believed and refers to immigration records contained in the affidavit filed in support of the application prior to the commencement of the trial. Those records were not tendered on the trial and are not before me. Nevertheless, I accept the testimony of the accused that he was in Australia on 29 September 2014. The State has been on notice of his claim, if not from 2014, then at least since his record of interview on 31 August 2023, and does not suggest otherwise. 

106.	The fact that the accused was overseas on 29 September 2014 does not preclude his criminal liability for the following reasons.

107.	There were a number of ways in which the State could have approached the case, including as alternatives. The accused were jointly charged and it is therefore implied that they acted pursuant to a conspiracy or common purpose, such that Mr Porykali agreed to and did abuse his own office by directing the payment, or that he aided Mr Porti to abuse his office by making the payment, or perhaps both. In either case that is conduct that may continue over time including both before and after Mr Porykali was in Australia and so regardless of ss 12 or 13 of the Criminal Code, it was possible for him to have abused his office or aided, counselled or procured Mr Porti to do so, whilst physically in PNG, subject to the evidence. 

108.	In addition, the Criminal Code expressly recognises that a person may be held criminally responsible for conduct overseas.  This is consistent with s 109 of the Constitution, which expressly recognises the power of Parliament to make laws having extra-territorial effect:  

109. General power of law-making.
 
(1) Subject to this Constitution, the Parliament may make laws, having effect within and outside the country, for the peace, order and good government of Papua New Guinea and the welfare of the People.
(2) In particular, Acts of the Parliament, not inconsistent with the Constitutional Laws, may provide for all matters that are necessary or convenient to be prescribed for carrying out and giving effect to this Constitution.
(3) No law made by the Parliament is open to challenge in any court on the ground that—
(a) it is not for the peace, order or good government of Papua New Guinea or the welfare of the People; or
(b) it purports to have extra-territorial effect.
(4) 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.

158. Exercise of the judicial power.
 
(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.
(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.	

109.	In interpreting the statutes of Papua New Guinea the matters contained in s 109(4) and 158(2) are to be given paramount consideration: Re Central Banking (Foreign Exchange and Gold Regulations (Chapter 138), [1987] PNGLR 433, and the many cases applying.

110.	I reject the submission that the indictment is defective for not referring to the offence as being against s 13. Section 13 does not create an offence. The offence is abuse of office contrary to s 92(1), Criminal Code and has been correctly stated in the indictment. Moreover, the accused has been on notice of the allegations generally against him since he was interviewed and of the specific charge at trial since the filing of the State’s pre-trial review statement. The State made it clear prior to the commencement of the trial and again on arraignment that it relied on both ss 7 and 13(2), Criminal Code.

111.	Sections 12 and 13 of the Criminal Code provide:

12.	TERRITORIAL APPLICATION OF THE CODE.
(1) This Code applies to every person who is in Papua New Guinea at the time of his doing any act or making any omission which constitutes an offence.
(2) Where offences are of such a nature that they comprise several elements, if–
(a) any acts, omissions or events actually occur which, if they all occurred in Papua New Guinea, would constitute an offence; and
(b) any of the acts, or omissions or events occur in Papua New Guinea,
then–
(c) if the act or omission that, in the case of an offence wholly committed in Papua New Guinea, would be the initial element of the offence, occurs in Papua New Guinea, the person who does that act or makes that omission is guilty of an offence of the same kind, and is liable to the same punishment, as if all the subsequent elements of the offence had occurred in Papua New Guinea; and
(d) if the act or omission occurs outside Papua New Guinea, and the person who does the act or makes the omission afterwards comes into Papua New Guinea, he is by coming into Papua New Guinea guilty of an offence of the same kind, and is liable to the same punishment, as if–
(i) the act or omission had occurred in Papua New Guinea; and
(ii) he had been in Papua New Guinea when it occurred.
(3) In a case referred to in Subsection (2)(d), it is a defence to the charge to prove that the accused person did not intend that the act or omission should have effect in Papua New Guinea.
(4) Subject to Subsection (5), this section does not extend to a case in which the only material event that occurs in Papua New Guinea is the death of a person whose death is caused by an act done or omitted to be done outside Papua New Guinea, and at a time when he was not in Papua New Guinea.
(5) The Code shall have extra-territorial effect so as to give effect to the Offences (Overseas) Act 1984.

13.	OFFENCES PROCURED OR COUNSELLED BY PERSONS OUTSIDE PAPUA NEW GUINEA.
(1) A person who–
(a) while outside Papua New Guinea procures another person to do or omit to do an act in Papua New Guinea of such a nature that, if he had himself done the act or made the omission, in Papua New Guinea, he would have been guilty of an offence; and
(b) afterwards comes into Papua New Guinea,
is by coming into Papua New Guinea guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission in Papua New Guinea.
(2) A person who–
(a) while outside Papua New Guinea counsels or procures the commission of an offence that is actually committed in Papua New Guinea; and
(b) afterwards comes into Papua New Guinea,
is guilty of an offence of the same kind, and is liable to the same punishment, as if he had been in Papua New Guinea when the offence was committed.

112.	The State submitted that Mr Porykali counselled or procured the commission of an offence committed in Papua New Guinea under s 13(2), by counselling or procuring Ms Tumul to process the payment when he knew the documentation was not in order. That arguably invoke s 13(1) rather than 13(2) but nothing turns on it.

113.	It seems strange that Mr Porykali did not upon being contacted by Ms Tumul take a more active interest in what was a large and extraordinary expenditure, regardless of whether or not he was on holiday.  Having said that his evidence that there was a proposed relocation exercise and that there were special arrangements for its funding is consistent with the other evidence. 

114.	There was no evidence that Mr Porykali had any relationship with Kitoro or benefited in any way from the payment. There is no suggestion that he had any other involvement with the purchase of the land at any stage. 

115.	Ultimately, the State’s case turns on the evidence of Ms Tumul that she told him that the documents were not in order and that he told her to process the payment in any event. 

116.	It is necessary to exercise caution with respect to Ms Tumul’s evidence because it became apparent during Secretary Akipe’s evidence that she had been criminally charged herself for the payment but had been given immunity on condition that she give evidence in this case. The State failed to inform the Court of that fact and failed to produce the immunity or its terms and conditions. That is a serious omission.

117.	It appears, however, that defence counsel for Mr Porykali was aware that she had been charged at some point. Contrary to his submission, I am unable to find that her evidence contradicted what she admitted in her record of interview as it was not put to her during cross-examination nor tendered in evidence. 

118.	I remind myself of the principles applying to a witness in respect of whom immunity has been given: see a summary at State v Runny Dau (2021) N9253 at [14] and [15].

119.	Ms Tumul was at pains to distance herself from any responsibility for processing the payment. As to why she sought Mr Porykali’s advice, she said that he was her immediate boss and she always sought his advice and that she had to ask him because he did not formally appoint her. I accept the first part of her answer. It makes sense. As to the second she was either acting in the position or she wasn’t.  

120.	When asked by the State exactly what was said during the conversation with Mr Porykali she said “I called him, he answered the phone and I told him this kind of claim, the amount for purchase of the land is brought by Secretary and what was his view and he said you can process it, he has approved it, so I instructed my, I wrote it at the back of the FF3, OIC to claims to process as approved by the Secretary as the s 32 officer.” She did not say that she told Mr Porykali that she had any concerns. 

121.	When cross-examined by Mr Porti’s counsel as to whether documents were missing she said “I did not say missing, I said I cannot remember but some I could recall seeing them.” She then said that some documents were not in order but she did not say which ones. It was only during cross-examination by Mr Porykali’s own counsel that Ms Tumul said that she told Mr Porykali that the documents were “not in place”. 

122.	There were also a number of inconsistencies in her evidence. She says she was not formally appointed or acting and yet she signed the FF4 as “A/FAS FIN”.  She did not sign it for or on behalf of Mr Porykali.  

123.	She said a number of times that she wrote on the back of the claim that she was directing it to be processed as approved by the Secretary and FAS Finance but there is nothing about her notation on the back page of the FF3 that indicates that it was approved by the Secretary or Mr Porykali. It simply says “OIC process claim as approved A/FAS FN 29/9/14”. 

124.	In all the circumstances the State has failed to establish beyond reasonable doubt that Ms Tumul told Mr Porykali that the documentation was not in order or that he told her to go ahead and process it in any event. 

125.	It follows that the State has failed to establish beyond reasonable doubt that he did an arbitrary act by directing the payment of monies believing that documentation was not in order, or that he wilfully abused his office in doing so.

126.	In the circumstances he too must be acquitted.

CONCLUSION

127.	Each of the accused are acquitted of the charge in the indictment. 

Verdicts accordingly    
________________________________________________________________
Lawyer for the State: Public Prosecutor	
Lawyers for John Sini Porti:	Public Solicitor 	
Lawyers for David Porykali:	Kopunye Lawyers