SC2056

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 53 OF 2015

ZEBEDEE JABRI KALUP
Appellant

V

THE STATE
Respondent

Waigani:  Kirriwom J, Manuhu J, Koeget J
2020: 28th July, 23rd December 

CRIMINAL LAW – joinder of charges – general rule that indictment charge one offence only – duty of trial judge to be alert to prejudice to the accused of joinder of charges – Criminal Code, s 531

NATURAL JUSTICE – risk of apprehended bias if Judge adopts other than neutral position at trial – Judge over-stepping neutral position and taking over cross-examination of accused.

STANDARD OF PROOF IN CRIMINAL TRIALS – beyond reasonable doubt – burden of proof rests at all times with the State – risks involved in trial judge adopting overly inquisitorial approach to determination of verdict – improper reversal of onus of proof.

OFFENCES – misappropriation, Criminal Code, Section 383A – elements of offence – need for the State to prove element of dishonesty, beyond reasonable doubt.   

This was an appeal against conviction on multiple fraud and corruption offences, including misappropriation under s 383A of the Criminal Code and obtaining money by false pretences under s404 of the Criminal Code. The appellant also appealed against the sentence of 11 years imprisonment. The trial judge accepted the State’s case that the appellant received project funding from the Department of National Planning and Monitoring for four projects in the sum of K500,000.00 + K2.5 million + K1 million + K750,000.00 = K4.75 million, that in the case of three of those projects, the funds were obtained by the appellant falsely pretending that he would deliver the project, and that in the case of all four projects, the funds were applied for purposes other than approved purposes and the projects were never completed. The appellant’s principal argument on appeal was that he was not given a fair trial due to the lack of impartiality of the trial judge. He argued that a reasonable apprehension of bias arose because of the manner in which the trial judge asked many questions of the accused as a witness and made adverse remarks against him during the course of evidence that suggested prejudgment of the issue of guilt. Related issues and arguments arose as to the alleged prejudicial joinder of multiple charges and the alleged failure of the trial judge to insist on the State proving its case beyond reasonable doubt, resulting in the onus of proof allegedly shifting to the defence. 

Held: 
(1)	The general rule under s 531 of the Criminal Code is that an indictment should charge one offence only and should only charge more than one offence after the trial judge has carefully considered the risk of prejudice to the accused of joinder of multiple charges. Here the trial judge failed to carefully consider the risk of prejudice to the accused, and failed to accord the accused a fair trial when the charges of several offences were lumped together. 

(2)	A trial judge must conduct a trial with fairness being the overriding principle, in a way that is seen by a reasonable and objective observer to be fair. Here, the trial judge over-stepped the line and descended into the litigant arena. The trial judge played too active a part in the conduct of the trial especially in the examination, indeed cross-examination, of the accused as witness. The nature of the remarks that the judge made before entry of verdict and before hearing final submissions gave rise to the appearance that the judge was not impartial. 

(3)	The trial judge must ensure that the onus of proof rests at all times with the prosecution and that the criminal standard of proof, beyond reasonable doubt, is rigorously enforced. Here, the trial judge shifted the onus of proof to the defence when the prosecution failed to adduce sufficient evidence to sustain the charges and expected the appellant to demonstrate that he did not misuse the public funds money he had received, rather than insisting that the State prove misuse of the funds. 

(4)	Section 383A of the Criminal Code has a number of elements including dishonest application of money to unauthorised purposes. Given the circumstances of the investigation, which meant that the appellant was prevented, five months after obtaining the funds, from applying the funds to their intended purposes, it could not properly be proven that he applied the funds to unauthorised purposes or that he was dishonest. For this reason alone the verdicts on all charges were unsafe and unsatisfactory. 

(5)	The appeal was entirely upheld. All convictions and the sentence were quashed. 

Cases Cited

The following cases are cited in the judgment:

Papua New Guinea Cases

Birch v The State [1979] PNGLR 75
Charles Bougapa Ombusu v The State [1996] PNGLR 335
Re Fisherman’s Island [1979] PNGLR 202
The State v Kanawi Pomat, Simon Pondrilei and Paul Mangeu (2020) N8596
The State v Paul Tiensten (2014) N5563
The State v Zebedee Jabri Kalup (2015) N6038

Overseas Cases

Woolmington v DPP [1935] AC 462

Counsel

R Pariwa, for the Appellant
D Mark, for the Respondent

23rd December, 2020

1.      KIRRIWOM J: I have read in draft the judgment by Justice Manuhu and I agree that this appeal must succeed. The facts of the case are as summarized by his Honour. 

CRITICAL FACTS

2.     The peculiarity of the factual circumstances of this case that in my view must be appreciated at the outset is that the appellant had applied for funding with support from two Members of Parliament, Hon Buka Malai MP, Member for Madang Open, Madang Province, and Hon Brian Cameron, Member for Kiriwina Goodenough Open, Milne Bay Province, for specific projects, three in Madang and one in Milne Bay. The applications were successful, cheques were raised by the Department of National Planning and Monitoring (DNPM) and the appellant collected those cheques from Mr Cameron in Alotau in or about March of 2011.

3.     About five months after the cheques were collected by the appellant in respect of the projects he undertook to deliver, Task Force Sweep Team descended upon him and began investigating the payments that were made from DNPM in response to his requests. The investigation led to him being charged with the offences he was convicted of and his bank account, where the funds were kept, was also garnisheed and closed. Some of the funds were still unused when the investigation abruptly halted his operations. It is critical to take note of the timing of the investigation because several of these projects, if not all these projects he undertook to deliver, would require time to roll out and deliver. He hardly had time to do anything apart from mobilizing and doing preparatory work on logistics and planning when investigation began.

4.     It was therefore imperative for the motive for the investigation into the appellant’s operations to have been properly established because, to have expected him to deliver the projects he undertook to deliver within five months of the receipt of funds from DNPM and taking him to task for not delivering the projects as promised, is in my mind parting company with reality. I make this observation in the light of the overwhelming evidence that the appellant was vigorously questioned throughout his testimony to show the outcome of the projects he was supposed to deliver. And the final judgment of the court against the appellant was based on the fact that at the time of the investigation, there was nothing on the ground to show that the funds he received and applied to the projects had delivered results. I make this point at the outset of my judgment for one to fully appreciate the basis for my conclusions on this appeal.

WAS THE APPELLANT GIVEN A FAIR TRIAL?

5.     The overview of the decision appealed against from the appellant’s point of view is that the entire judgment is tainted in view of the surrounding circumstances at the material time he came into possession of the funds he applied for from DNPM. The Government Task Force Sweep Team had just been set-up to investigate funds misuse and abuse from DNPM, an entity the trial judge described as a “milking cow” for people in high places, including the Minister responsible for the Department concerned, Paul Tiensten. 

6.      At the time that the appellant was convicted and sentenced, less than a year had lapsed after the conviction of Paul Tiensten who was sentenced to nine years imprisonment for misappropriation (The State v Paul Tiensten (2014) N5563).  And the Sitepra Nucleus Cocoa Project in Madang prior to the release of the funds from DNPM was actually launched by Paul Tiensten as the responsible Minister and his ministerial influence was everywhere that could not be easily ignored. And this is one of the appellant’s grave concerns: the trial judge did not preside in his case with an unbiased mind, as his mind was already overly influenced by what he knew after presiding in Tiensten’s case, and as such he did not give him a fair trial.

7.     My perusal of the transcript of the proceedings and the judgment of the court unfortunately lead me to the view that the appellant’s complaint in this regard, with greatest respect to the trial judge, seems to have some merit. And one way I see where the difficulty in the trial could have been ameliorated was by being tactical and careful in the way the trial was progressed. This could have been achieved in several ways.

8.     Firstly, given the multiple counts drawn from the distinct offences connected to an alleged single criminal enterprise, failure to invoke s 531 of the Criminal Code at the outset of the trial resulting in lumped charges in the same trial was a critical procedural error, which made it potentially unsafe for the trial to have continued and proceeded in the way it did. 

9.     Secondly, the primary judge should have taken the caution in Birch v The State [1979] PNGLR 75 seriously and taken a more moderate part in the trial. But what is too apparent from the transcript is that his Honour took too active a role in his prolonged examination of the accused. His Honour made observations and remarks that would lead an independent silent observer watching from the gallery to form the view that he was not impartial. 

10.     Thirdly, the primary judge seems to have shifted the burden of proof to the defence. 

11.     Fourthly, because of the multiplicity of the charges arising from three distinct offences and the trial being conducted away from the locations of the projects that the appellant was to deliver, it was quite impossible to prove dishonest application of the funds. The court could not be satisfied beyond reasonable doubt by relying only on the oral evidence of the State witnesses, which on the whole was rebutted or sufficiently contradicted by the defence. 

1 	LUMPED CHARGES – PREJUDICIAL EFFECT OF JOINDER

12.     The general rule is that an indictment must charge only one offence, not two or more offences. So, at the outset, the indictment was already bad for multiplicity. But there are exceptions to this general rule which I discuss below.	 

13.     Section 531 (joinder of charges: general rules) provides: 

(1)	Subject to this Code, an indictment must charge one offence only, and not two or more offences.
(2)	Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted—
(a)	by the same acts or omissions; or
(b)	by a series of acts done or omitted to be done in the prosecution of a single purpose,
charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connexion between the offences.
(3)	If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may—
(a)	require the prosecutor to elect on which of the several charges he will proceed; or
(b)	direct that the trial of the accused person on each or any of the charges be had separately. [Emphasis is mine.]
(4)	This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.
14.    Joinder of charges in one indictment of several distinct offences arising from the same acts or omissions or a series of acts done or omitted to be done in the prosecution of a single purpose is permissible only if the accused is unlikely to be prejudiced by the joinder. Where it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may either require the prosecutor to make an election on which of the several charges he will proceed or direct that the trial of the accused person on each of the charges be had separately. Was this counsel observed and adhered to in this case? No. This was a threshold problem connected with this case that made prosecution task next to impossible and fair trial on the part of the accused defending himself non-existent.

15.     In Charles Bougapa Ombusu v The State [1996] PNGLR 335 the Supreme Court upheld an appeal by the appellant where two separate indictments, one of wilful murder and the other of rape, were all heard in the one trial and the appellant was convicted of both crimes and sentenced to death. The count found that the trial violated section 531 of the Code resulting in miscarriage of justice. The court said at 338: 

[i]t was not permissible to have joined the two distinct indictable offences in the same indictment, pursuant to s531(2), because they could not be said to have been constituted by the same act or omission, or by a series of acts done or omitted to be done in the prosecution of a single purpose. Secondly, it is not permissible to join a charge of wilful murder with that of rape under subsection (4). …
Pursuant to s 531(2) and (3) several distinct indictable offences alleged to be constituted, (a) by the same acts or omissions, or (b) by a series of acts done or omitted to be done in the prosecution of a single purpose, may be joined in the same indictment and tried together, unless it appears to the Court "that the accused person is likely to be prejudiced by the joinder," then the Court may, (a) require the prosecutor to elect on which of the several charges he will proceed, or, (b) direct that the trial of the accused person on each or any of the charges be had separately. … 

Given the allegations of facts in these cases, the likely prejudicial affect against the accused is too serious to have permitted the joint trial to continue. The proper course in the circumstances ought to have been for the Court to require of the prosecutor to elect on which of the two separate indictments he would proceed or to direct that the trial proceed on one of the indictments only and the other to be tried separately before another Court on another occasion.
 (emphasis is mine)

16.     There were eleven counts in the indictment stemming from three separate offences in connection with the same transactions from one end of the spectrum or chain of causation but concluding or finishing up in two different locations according to their own factual circumstances. The offences were misappropriation, obtaining money by false pretence and conspiracy to defraud.   These were broken up to four counts of misappropriation, three counts of stealing money by false preteens and four counts of conspiracy to defraud. All these counts were lumped together and charged in the same indictment.

17.     It must be observed that identifying the offences of which the appellant was actually convicted, has not been a straightforward exercise in this case. In the oral judgment on verdict the trial judge informed the appellant that he was found guilty as charged of all 11 counts on the indictment. However, in the reported judgment on sentence (The State v Zebedee Jabri Kalup (2015) N6038) the trial judge stated that he was sentencing the appellant after convicting him of seven offences. This discrepancy is unsatisfactory but ultimately it has no bearing on the outcome of the appeal.  

18.     Section 531 is in place to ensure procedural fairness where an accused person is given an opportunity to properly defend himself with ease in respect of the allegations against him. 

19.     As a matter of practice, joinder of charges has always been allowed where alleged offences stem or arise from similar or the same single transaction as in this case, but under s 531(3) that joinder is subject to one important proviso and that is the person accused and charged is unlikely to be or is not prejudiced at his trial. 

20.     That is the critical question here. Was the appellant prejudiced in the conduct of his defence in this trial? He argued that the trial was unfair, both the prosecutor and the trial judge were unfair and he was prejudiced in the conduct of his case because by hearing his case in Waigani and his projects were in Madang, he was not allowed opportunity to show the court what he had done in those projects in Madang with the funds he received from the Department of National Planning and Monitoring (DNPM) for those projects. 

21.     If the prosecution had taken the course as instructed in Ombusu in compliance with clear dictates of s 531, or at least directed some attention to this provision by the mere sight of the multiple charges in the indictment, it would have been immediately alerted to the incongruity of the charge laid out in the same trial to take appropriate remedial actions that both the prosecutor and the court over-look. 

22.     While Ombusu is not on all fours with this case because s 531(4) specifically excludes joinder of a homicide charge with any other offence, the need for separation of trials here was greater given the peculiar circumstances of the case where the allegations against the appellant were for non-delivery of four projects,  purportedly funded by the State through DNPM, in Milne Bay and Madang Provinces. Common-sense prevailing, two places of trial are Alotau and Madang. But as we now know, the trial was conducted in neither of these two places, it was held in Waigani.
2	DESCENDING INTO THE ARENA OF PARTIES & PERCEIVED BIAS
23.     The primary judge took an active part in the trial particularly in the defence case that quite appreciably leaves a clear impression that the judge was not impartial or neutral. He had obviously descended into the parties’ arena according to these exchanges in the transcripts AB Vol 1 pp 253-257: 

HIS HONOUR: And the man who is on the ground there came and said, no, I am not aware of such a project. Where they cooked up this- where they came up with this project, I am not aware of it. So, playing games here – anyway, the person who is the man on the ground, the council president for that particular area comes and says, well, I did not give any plans, I am not aware of any such plans to have a communication project in my electorate. The member ought to have spoken to me first and not only that, you need to go and speak to the landowners where you propose the station, the dish. Where is the dish going to be to accept the –to receive and send out signals? You need to talk to the landowners for that as well. 

That is one of the reasons why we have so many problems in this country because our leaders and our landowners and everybody, they do not see face to face and people go and make their claims out there, get the money quietly and go and nobody hears about it. So, here was the money, people in the electorate do not know anything about it. The money is given, you spend K50, 000 and the Member spends K450,000. This is a –and I am saying it in general but that is the outcome. 

So, the outcome for that particular proposal is a total failure. The development outcome that was to come from that project is a total failure. Well, for the Sitepra project, Jack Murphy and the others who came, gave evidence before this court and they said, well, the bush has covered the whole place again and we are back to base. So again, I ask the question, what are the outcomes? What are the developmental outcomes for these projects that so much money has been given for? Is that the trend that we in PNG are going to continue to have? I am not sure, but Mr Kalup, my question is: because the project is a cycle, you – there are different stages of the project; you have got mobilization which you in some cases try to do, mobilization of the project. Well, project is approved, funded, money is there. Okay, now you are setting up yourself to the implementation plan of the project. Implementation, first of all you mobilize your equipment, your infrastructure, vehicles, money, everything else ready to start and you have a timeline when to finish off that project. Okay, I am going to finish off this project on time. By this time, we should have this. By this time, we will have rehabilitated cocoa plantation, not only in that village- that name of the village escapes me now, but the surrounding areas. We should have rehabilitated cocoa plantations for these people successfully done and in – well, that was in what, 2009. By now they should have harvesting those, well – well and truly making money with those cocoa plantings. If those cocoa plantings had been done, by now they should have been harvesting them and making money. So, your assessment of those four projects, have you delivered? 

ACCUSED: Your Honour, the Sitepra project, if Jack Murphy and Matt Murr and Manika Biles, if they were honest, they would tell the court that they started harvesting. The harvesting process had already started in 2012 and they are now continually harvesting. Cocoa is an economic cash crop and cannot be left outside. 

HIS HONOUR: Well, that is that- I mean, they were here, Jack Murphy and blokes from- they came and they sat on the same chair you are sitting in and that is what they told this court. They said, well, ‘bus I karamapim pinis’ so we are back to base. I mean, cocoa needs to be cleared as well in order to them to harvest- to have a good harvest you need to keep clearing the bushes so that they can produce. But that was the evidence and they said there is nothing, no change in our lifestyle, we are still the same. The bush has covered us up again so that was their evidence as against yours. All right, any questions arising from my questions?

24.     The fact of the matter, and common-sense prevailing, is that these funds that were allocated to the agriculture and cocoa projects in Madang in this case would take years to deliver to fruition, definitely not less than five months. And if his Honour was influenced in his decision by the evidence of Jack Murphy that bushes had overgrown the cocoa project in Kamba where the witnesses came from, that would be correct because nature and vegetation do not stand still, at the time of the trial of this case in 2015, almost four years had gone since the project was abruptly halted by this investigation and the arrest of the appellant. The project was disbanded as it lost its driver which was the appellant. 

25.    In reality, the appellant was unfairly and unjustly toasted and fried on a frying pan vigorously and aggressively in an inquisitive manner throughout the trial as he sat in the witness box to give his side of the story apart from being lectured on and bombarded in a manner quite uncalled for as he had only been in receipt of the funds four-five months earlier and the time for him to account for those funds have yet to arrive.

26.     There is evidence that those projects did exist, the payments were not for ghost-claims. They were real projects but the appellant was stopped from delivering the projects on a misguided witch-hunt of abuse and misuse which the State failed to show with credible evidence of misuse. 

27.     The following exchanges between the appellant and the judge show this at appeal book Vol 1 p 227:

HIS HONOUR: So, did all the K1 million that was paid to Zenalis, was that all used up by the project or what happened?

ACCUSED: Yes, your Honour. Most components were used up with that money. There was one component called the export that we need to save to do the export.

HIS HONOUR: Okay. And so at the end of the project, what was the outcome?

ACCUSED: The job was completed.

HIS HONOUR: What was the project outcome?

ACCUSED: We completed the job. We furnished a report to the district and before we could go any further, we were arrested by the Task Force Sweep. So, the district could not-we were not able to get in touch with the district and all our reports that were given to the district were locked away.

HIS HONOUR: Okay, so what happened to the cattle? Did the - the cattle farms that - the cattle and what were the projects, piggeries or what else? Did they flourish? Did the farmers benefits from that or what was the – because that was the entire aim. It was that the farmers will now become self- and that is the reason I am asking you. What was the outcome? Did the farmers get satisfaction for their K1 million?

ACCUSED: Your Honour, we identified one of our farmers for the cattle project in the Trans-Gogol area but we were going to shop around for little steers that will buy from Ramu Sugar to bring it to the farmer. If you look at the timeframe for the project, we were not given ample time to complete what was written by us. We were trapped by the IRC in our accounts that they garnisheed. So, really looking at the timeframe alone, we were unable to really achieve our targets by doing what we were supposed to do. Some of the moneys had been garnisheed by the IRC and we were left out in the whole management of the project.

28.     It is clearly evident from these exchanges between the appellant and the presiding judge that the appellant did not see himself as having done anything wrong. He applied for the funds for specific projects. He was successful and received the funds, regardless of how he collected those payments and from whom, and began spending the funds to implement his projects when he was stopped short in the fifth month from the time he came into receipt of the funds. 

29.     From these conversations a fair-minded person without a preconceived mind can easily see that the timing of taking stock-take of whether funding of the agriculture project was legitimately pursued or money was properly spent was a long way away from reckoning. And the project-holder was prematurely hunted down and dragged into court to show cause when he hardly had time to assess his own progress rate. So, the question then is, what was the motive for this prosecution? If it was for misappropriation, it was too early because the project-holder needed time to apply the funds according to his project proposals and then acquit them. He was being taken to task and told to acquit when he hardly had time to spend the money, some of which were still in the bank account and garnisheed by IRC. 

30.     The appellant had his books all ready to be checked but the inspection did not take much interest in it. So, what were they really interested in?

31.     On the question of records of expenditures maintained for those funds, the transcripts show at the bottom of p 227 Appeal Book Vol I:

MR MESA: So, you kept all your receipts, your expenditures, records of spending for this agriculture project?

ACCUSED: Yes. Like I said, we have a cash book for all the projects so for agriculture projects we have a cash book for that. For Sitepra project we have a cashbook for that. And for the sea-freight we also have a cashbook.

(Interjection by His Honour)

HIS HONOUR: Sorry, you had cash books for each of the projects?

ACCUSED: Each of the projects.

HIS HONOUR: Where are those cash books?

ACCUSED: Your Honour, we submitted our acquittals and the State objected to accept them and therefore, we could not make our presentation on our acquittals.

HIS HONOUR: Do you still have those cashbooks or where are they?

ACCUSED: They are here. Your Honour, the presentation by the auditor yesterday on the reports of the district was a summary of all the acquittals that we have.

MR MESA: So, the summary that was – sorry, the evidence given by Mr Ekip Kop, those are the figures which were taken from your cash book?

ACCUSED: Correct. Those are the figures that we put in the operation account and we were drawing down for various activities and that is in the cash book and it is in the acquittal.

MR MESA: So, those same figures given by Mr Kop would be in your cash book?

ACCUSED: Correct. We also submitted for the tax return meaning that the total of 4.7 million – 7.5 million was from that cash book that incorporated into a ledger and that ledger into the tax return. So, we did what we can do as a company.

HIS HONOUR: Well, that is what I was talking about when I said unless you had a ledger book or ledger card to record expenses for those projects as and when they occur and that they are recorded in the cash books. Those are books of account and there you can also- I would call them as also books of accounts so that the records of your spending and you income or expenditure, in this case, it is just expenditure because you are simply just spending, spending, spending. They are kept in that book and so that is why I am asking because you just mentioned the cash book just now so that is the reason, I am asking that. So, there is indeed a cash book which is something that is of interest and that should be before the court.

32.     And the appellant then proceeded to tender into evidence two bound volumes of documents containing acquittals of all the projects for which he received the funding together with receipts and expenditures. And this is in page 231 of Appeal Book Vol I.

33.     The following exchanges are recorded of questions and answers during examination in chief when the appellant was recalled for purposes of tendering his books of account at pp. 237-239 AB Vol 1: 

MR MESA: When did you first learn that you were being investigated?

ACCUSED: August 2011. I was not given any notice of that investigation and we were trying to progress our projects and we realised the accounts were already closed and there was no explanation as to why those accounts were closed and that is it, we did not know where to go.

MR MESA: Okay. Were you visited by any policemen?

ACCUSED: No. I was never visited by policemen or even a letter from the Police Department to tell me why my accounts were closed or I was investigated for what.

MR MESA: Did anybody come to check your books or check your accounts?

ACCUSED: No. The only man I remembered with the Task Force Team was Benjamin Harry from IRC. And when I did my presentation for the project office, my company office and when we took him up to the project site, we gave him all these acquittals and he said he was satisfied and he advised that he will take it to Port Moresby and get it stamped  for us and return it back. That is why we waited for it and later I was arrested.

MR MESA: So, when you were arrested, was there ever a time when any investigation by any auditors was done into your books?

ACCUSED: Not at all. I requested Benjamin Harry that an independent auditor should audit my accounts and I have never received any reply from him.

MR MESA: The cash books that you have there, were they available at the time when police were making their investigations?

ACCUSED: Yes, we showed him and he said he will take them to Port Moresby.

MR MESA: You were interviewed by Police Sergeant Aaron?

ACCUSED: Yes, a policeman introduced himself as Sergeant Aaron Elijah.

MR MESA: For a record of interview, three records of interview?

ACCUSED: Yes

MR MESA: And you gave an explanation of the cheques being deposited into your account and what they were raised for, you explained yourself to the police officer?

ACCUSED: Yes

MR MESA: That is for all four projects?

ACCUSED: All four projects, yes.

MR MESA: Did he even ask you for access to those cash books?

ACCUSED: No, I told him that the Sitepra project and sea-freight project and the agriculture project were completed. He should have asked for acquittals.

HIS HONOUR: Mr Kalup, at the end of the day, have you achieved anything? Has the community achieved anything? Has our standard of living gone up?

34.     In my view, this was not an appropriate question from a judge sitting in a trial and hearing evidence being given orally. It clearly gives a wrong message that the judge already had a preconceived mind of what he wanted in the trial. 

35.     But undeterred by the judge’s question the appellant’s answer was (p 239 appeal book Vol I):

ACCUSED: Your Honour, that story will be told by those people who have received the benefit of this project and I can frankly confirm in this court that they were happy.

36.     But this is not where this exchange ended, the Judge continued to bombard the appellant with these remarks: 

HIS HONOUR: Is there evidence of farmers coming and saying yes, we appreciate this assistance and as result, I am now producing twice as much cocoa or twice as much beef or twice as much poultry or twice as much pigs and as a result, I am earning twice as much and as a result I have now built myself a permanent house and these things. This is what we want to see. That is what I want to see, at least on my part for that 4 point whatever million it was. The example of the 700,000 for Kiriwina, there is no – nothing there. You gave it back to the member. What is the-it is not the Member’s money. It is a clear – it is ridiculous.

37.     And further down the same page the trial judge again remarked:

HIS HONOUR: Why would the Member want it? Ï mean, it is a – these are monies given on stringent PIP guidelines or whatever guidelines there are and the money given back to the member and that is it, that is the last of it we hear of it – 700,000.00.

38.     In my view, with the greatest respect, any fair-minded person sitting and observing this trial from the public gallery can clearly see where the judge was coming from. His Honour was not that impartial and detached independent umpire sitting in an adversarial court system, but one who had taken a particular position as in an inquisitorial system and expecting the accused to explain and extricate himself out of the dungeon, for want of a better word, where he had placed him. The judge even got the facts wrong as well, for example, in reference to the satellite communication project in Kiriwina, it is K500,000.00, not K700,000.00.
 
39.     If the judge had gone into this trial with an open mind and was unaffected by any pre-conceived view of the case, he could have seen clearly that there was no way that the accused could be expected to improve the lives of the people, demonstrate the fulfilling and satisfying outcomes from all the projects that he initiated within five months after receiving that K4.75 million. It is impossible to achieve. Only a miracle man can do that. His Honour was not in his right frame of mind to see and appreciate this.

40.     This only goes to give weight and credence to Mr Pariwa’s submission that his Honour could not have fairly and impartially sat on the appellant’s case when he had earlier presided in the case of The State v Paul Tiensten (2014) N5563 involving theft of K10 million from the same basket when he was the Minister responsible for DNPM by facilitating payment of the money to a crony’s business. Paul Tiensten was sentenced to nine years imprisonment on 28 March 2014. Mr Pariwa argued that trial judge was familiar with that case and Paul Tiensten’s name as Minister responsible for the Department overseeing this pool of funds was mentioned in this trial for being the guest of honour in the ground-breaking program of the Sitepra Cocoa Nucleus Project in Madang about a year or so before the release of the funds. 

41.     The extent to which a judge can properly participate in a trial during examination of witnesses was examined in Birch v The State [1979] PNGLR 75 where Prentice CJ at pp 79-80 stated:

The question of undue participation by a judge in the conduct of a trial was discussed by the Court of Criminal Appeal of N.S.W. in R. v. Butler (1953) 53 S.R. (N.S.W.) 328; 70 WN. 222.3. Therein, the Chief Justice adopted the remarks on the same subject (and with which I too, with respect, agree) of Lord Greene M.R. in Yuill v. Yuill [1945] 1 All E.R. 183.4 as follows (1953) 53 S.R. (N.S.W.) 328, at pp. 329-331; 70 WN. 222, at pp. 222-224.5:
“Now, his Honour undoubtedly did participate to an inordinate and unwise extent in the conduct of the trial. The matter is not to be determined by consideration of arithmetical statistics alone, but it was pointed out that his Honour, so far as Rochester was concerned, actually put more than one-third of the total number of questions that were asked of this witness, and he did interest himself to a considerable degree in eliciting various matters. In the course of the examination he put a great number of questions which were really cross-examiner's questions, but again all directed to eliciting evidence from Rochester as to the part that he had played ... I think that I cannot do better, so far as general principles are concerned, than cite at some little length passages from the judgment of Lord Greene M.R., in Yuill v. Yuill [1945] 1 All E.R. 183, at p. 185.6. His Lordship said:
‘The other argument was to the effect that the trial was unsatisfactory owing to the fact that the judge took an undue part in the examination of the witnesses. It was said that the judge put many more questions to witnesses than all the counsel in the case put together and that he in effect took the case out of counsel's hands to the embarrassment of counsel and the prejudice of his case. The part which a judge ought to take while witnesses are giving their evidence must, of course, rest with his discretion. But with the utmost respect to the judge it was, I think, unfortunate that he took so large a part as he did ... It is quite plain to me that the judge was endeavouring to ascertain the truth in the manner which at the moment seemed to him most convenient. But he must, I think, have lost sight of the inconveniences which are apt to flow from an undue participation by the judge in the examination of witnesses. It is, of course, always proper for a judge — and it is his duty — to put questions with a view o elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are matters which the judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good. It is, I think, generally more convenient to do this when counsel has finished his questions or is passing to a new subject. It must always be borne in mind that the judge does not know what is in counsel's brief and has not the same facilities as counsel for an effective examination-in-chief or cross-examination. In cross-examination, for instance, experienced counsel will see just as clearly as the judge that, for example, a particular question will be a crucial one. But it is for counsel to decide at what stage he will put the question, and the whole strength of the cross-examination may be destroyed if the judge, in his desire to get to what seems to him to be the crucial point, himself intervenes and prematurely puts the question himself. I think it desirable to throw out these suggestions in case they may be found helpful in the future.'
‘A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue [1945] 1 All E.R. 183, at p. 189.7.'
42.      His Honour then continued:
Each of the judges of the National Court becomes aware of the difficulty from time to time of getting very young Papua New Guinean girls to come out with their version of complaints — particularly those of a sexual nature. Each of the judges may be faced from time to time with having the assistance of somewhat inexperienced prosecutors and inexpert evidence-gatherers. In the circumstances of the country it may become necessary in my opinion, for a judge to hold the balance between the interest of the State in enforcing the law and that of the accused in defending himself against a charge, by intervention of a rather more detailed and prolonged nature than would be called for or proper in other more sophisticated settings.
3	SHIFTING THE ONUS OF PROOF 
43.     I uphold the submission that given the judge’s own intense participation in the trial, he failed to give the benefit of the doubt to the accused but instead shifted the burden of proof to the defence. I quote the following passages in the judgment of the primary judge, which, with respect, in my view, clearly and justifiably give support to the appellant’s complaint that the judge ought not to have sat in his trial given his in-depth knowledge of his as not only the judge administrator of Fraud and Corruption Track at the material time, but having earlier presided in The State v Paul Tiensten (supra), where his Honour convicted and sentenced Tiensten to 8 years, and therefore he did not sit on his trial with an unclouded and free mind to give him a fair trial. 

44.     In a commonly cited House of Lords decision in a 19th century case of Woolmington v DPP [1935] AC 462, while delivering the unanimous opinion of their Lordships on an appeal against a homicide conviction, Lord Viscount Sankey, LC said:

This is the law as laid down in the Court of Criminal Appeal in Rex v. Davies 29 Times LR 350; 8 Cr App R 211 , the headnote of which correctly states that where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental. Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i.) intentional and (ii.) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted. It is not the law of England to say, as was said in the summing-up in the present case: “if the Crown satisfy you that this woman died at the prisoner's hands then he has to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing it was a pure accident.” If the proposition laid down by Sir Michael Foster Ante, p 474 or in the summing-up in Rex v. Greenacre 8 C & P 35, 42 means this, those authorities are wrong.

45.     But the following passage from the judgment of the trial judge tells a different story:

Mr Zebedee Jabri Kalup, you stand up. You have heard what I have said. I find you guilty on all the counts: counts 1-11 of the charges that you have been indicted with. And the reasons I have stated in this judgment why I find you guilty is that you have not accounted for the moneys, simply those things. (1) you have not accounted for the moneys. (2) The projects were never implemented because there is nothing to show for it. The Madang Project or Sitepra Project is back to base. The people are poorer with their 2.5 million gone. There is nothing in that that came out from that project. You simply misused that money.

46.     These findings of fact cannot go unchallenged. It is not true to say that the appellant did not or failed to account for the moneys he received. He acquitted the funds that were already spent according to his books he tendered into evidence during the defence case of cash books, ledgers and acquittals. He did so in his defence when police and prosecution were uninterested in them. One wonders what the investigation was interested in. And that was the only evidence in the trial that explained how the appellant applied the money and how much would have been left when Task Force Sweep Team moved in and abruptly ended his operation. 

47.     The trial judge was duty-bound to explain in his judgment how he treated that evidence and what weight he placed on that evidence. Nowhere in his judgment did the trial judge address his mind to the evidence by the defence on these critical materials that were relevant to proving misuse or misappropriation. Similarly, there is no evidence before the court by the prosecution as to how the accused misused the money, how much was spent and how much remained when the appellant’s account was garnisheed.

48.     As for evidence of implementation of the projects, again this finding goes against the grain of the evidence when one with his thinking cap on will appreciate that the agriculture and Sitepra Nucleus Cocoa projects have life-spans for their maturity that would well over a year, not five months. It is nonsensical to expect any outcomes from these projects five months after the appellant collected the cheques for those projects. Where is the evidence of misuse of these funds? No evidence was tendered by the prosecution, how much was misused, where was it misused? For all we know, the projects were sabotaged by the investigation culminating in this case.

49.     And the following passages in his Honour’s judgment clearly tell what was going on in his mind. At p 335 appeal book Vol I:

The K1 million for the agriculture project, that, too, there is nothing to show for that project. There is nothing surviving. None of those projects survive today. You have not shown to this court that yes, those projects are there; I started them off and they are here. These are photographs of it or even suggest to this court that, look, we can go to Madang and you can have a look at them and I will show you where the projects are. You know, that can easily be done. You can go and show me where the projects – you can show me what work you did and then this court can be satisfied from that that you in fact did, but you did not. There is nothing to show for the project and so I find that you just misused that money.

And even the sea-freight project, there is nothing – no evidence that you did any work on that sea-freight project. It was all – you men were milking the National Planning and Monitoring Department. That was you milking cow. It is a – that is how it was; conspiracy, plan with others. That was the – the National Planning and Monitoring Department was indeed the – huge pots of money – you people knew about it that there were – all you men knew about that pot of money waiting for the people to put their hands into it.

50.     The passages set out above show clearly that the primary judge’s mind was already heavily influenced by external factors, of what he already knew of the rot that was taking place in the DNPM, and since convicting Paul Tiensten, the then Minister responsible for this pool of money “waiting for people” connected with Paul Tiensten “to put their hands into it” as his Honour concluded, he undoubtedly placed the appellant into this basket and did not give him a fair trial on its own merits. If he did, he could have seen that the appellant’s case was completely different from that of Paul Tiensten and the circumstances were entirely different. 

4	LACK OF EVIDENCE OF DISHONEST INTENT

51.     I uphold the appellant’s argument that the trial ought not to have been conducted in Waigani. The necessity for trial in Madang and Milne Bay Provinces was not only beneficial to the defence, but even more so for the prosecution on whose shoulders fell the responsibility to prove the appellant’s guilt on all the charges beyond reasonable doubt. 

52.     The onus was not on the appellant to prove his innocence by taking the court to the project sites and showing the Court of where and how the funds he received were committed or spent. This responsibility fell squarely on the State to take the Court to the scene where the projects are located and show to the court what had not been done as asserted by the appellant. Not vice-versa. 

53.     This is extremely relevant because the State produced selective witnesses whose evidence favoured the prosecution with regard to the Sitepra Nucleus Cocoa Estate Project. Other witnesses including a government officer, who testified in the defence case, said there was benefit being derived by the cocoa farmers or block holders at the time of trial. This is bearing in mind that a hybrid cocoa tree takes minimum of eighteen months to mature and bear fruit and the appellant’s project was forcefully shut-down in August 2011 by the investigation, and he was tried in February of 2015 of this string of offences, after a lapse of four years following arrest.  

54.     In this scenario, proof beyond reasonable doubt on the facts before the court was next to impossible. Without the court visiting the scene of Sitepra Nucleus Cocoa project in Madang, and not satisfying itself of the conflicting evidence of what was done and not done in that project, there is no way that the trial judge could have been satisfied beyond reasonable doubt of the charge of misappropriation because a critical element of the offence was missing, ie dishonest application. If K2.5 million was obtained for that project, how did the appellant misuse that money? 

55.     There must be evidence of misuse first and foremost. If there is no evidence of misuse of that money, there cannot be misappropriation. There must be dishonest application of that money. No such evidence was tendered. 

56.     The State called witnesses who testified that there was nothing on the ground at the project site to show the money had been spent on delivering the project. But a project of such magnitude had many components and the appellant was arrested only five months into the start of the project from the time of receipt of the funds. He was according to the outcome in this trial, expected to deliver an agriculture (cocoa) project with projected work-plan of several years for completion before all the appropriated funds are exhausted and accountability requirement begins, in five months or less before he had chance to use all the funds he had received.  Some funds were still in the account when the investigation garnisheed his company bank account and his project was halted. It therefore begs the question, what was the motive for this investigation?

57.     There is no evidence that all the funds were exhausted in respect of this amount (K2.5 million) for the Sitepra Nucleus Cocoa estate, how such funds were spent, by whom etc. There is also no evidence of application of these monies because the police investigator who was involved with the Task Force Sweep Team refused to accept the appellant’s books of accounts that he maintained of all his transactions. That is why Police had no records and yet laid charges of misappropriation when their investigation lacked evidence of application of the funds received. The appellant provided this information during the defence case according to the transcripts, parts of which are reproduced elsewhere in the judgment. 

58.     This is why the prosecution tried to build its case around lack of acquittals and lack of meetings and approvals of Joint District Budgetary and Planning Committee for these projects. Absences of these pertinent processes do not prove criminality of anything. They only go to the question of credit or credibility of someone and his story. There may be many reasons, lawful or excusatory, of the absence of such processes or requirements being omitted. But their absences per se do not become evidence of the proof of a dishonesty offence.

59.     In The State v Kanawi Pomat, Simon Pondrilei and Paul Mangeu (2020) N8596 a charge of misappropriation against three accused was grounded on the lack of acquittals of the funds used. There was no denial about the use of funds. The bank statement showed out-going of the funds from the account which was uncontested. The details of those outgoings as complied by the accused persons was duly submitted in accordance with the internal auditing procedure but nobody in the receiving office within the province acknowledged receipt. And the reasons for lack of explanation was that the acquittal documents were either deliberately or by oversight misplaced and not furnished to where they should have ultimately gone to. The court dismissed the charges against the accused and said that lack of acquittals did not prove misappropriation. The following passage from the trial judge is worthy of noting:

LACK OF ACQUITTALS – NOT PROOF OF DISHONESTY
In the absence of any direct evidence of dishonest application of the funds in question, I ask myself, is lack of evidence of acquittals credible and reliable enough evidence for purposes of meeting the requirements of prima facie case in order for the accused to be called to answer the charge? In other words, on the evidence as it stands, can the accused be lawfully convicted for this offence?
What is then the purpose of acquittals which is a mandatory requirement for transparency and accountability purposes in the way funds are expended? Does this requirement have any substantive role to play in terms of primary evidence of proving an offence of dishonest application by the person to whom the grant was made? Even more so, how is the criminal culpability apportioned between co- accused where one of them bears the responsibility for submitting the acquittals on behalf of the office or organization and others are dependent on him? And if he fails, do they all become criminally liable by default due to the failure of one?
60.     In this case, the State case revolved around lack of acquittals because that is what the investigation wanted it to appear, it need not have to be that way. Had that investigation been fair and the Police took all the documents needed through their own independent source and from the accused, there were physical records or books of accounts maintained explaining the expenditures but the Police Investigation was not interested in them. This is therefore, not a case where there were no acquittals at all, there was acquittals that were tendered in evidence by the defence, the same documents that the police investigating the case were uninterested in. 
61.     In the absence of any such evidence from the prosecution, that is the only evidence in the trial on acquittals. The problem in this case is that even the trial judge ignored that evidence instead of evaluating it and applying it however it suited this case. The least the trial judge could have done was explain how he treated that evidence. He did not. Instead he too said that there was lack of acquittals which is demonstrated in the transcripts reproduced elsewhere in this judgment.

62.     Therefore, the conviction for misappropriation with respect to the amount of K2.5 million suffers from this defect. The same argument also applies to the other counts of misappropriation with respect to the other three projects except for the K500,000.00 received for the communication project in Kiriwina as the money trail leads back to Member for Kiriwina-Goodenough, Mr Cameron. 

63.     In my view, if the charge of misappropriation fails, the other offences of obtaining money by false pretence and conspiracy to defraud also fail as they cannot stand on their own where such allegations arise simply because their inclusion in this multiple criminal enterprise or transaction was necessary for dishonest purpose such as misusing funds outside of their intended purpose. 

CONCLUSION

64.     In my view, this trial miscarried because the learned trial judge fell into error in four respects:

1.	He failed to apply s 531 of the Criminal Code and therefore violated the golden rule of “one offence, one indictment”. His Honour failed to accord the accused a fair trial when the charges of several offences were lumped together and not separated so as not to prejudice the accused in his defence. The appellant was clearly prejudiced in the conduct of his defence. 

2.	He over-stepped the line and descended into the litigant arena and played too active a part in the conduct of the trial especially in the examination, indeed cross-examination, of the accused as witness. Furthermore, the nature of the remarks that his Honour made before entry of verdict and before hearing final submissions gave rise to the appearance that he was not impartial. 

3.	He shifted the onus of proof to the defence when the prosecution failed to adduce evidence to sustain the charges and wanted the appellant to demonstrate that he did not misuse the money he received from DNPM.

4.	There was hardly any evidence from the prosecution on the use of the monies received and how they were expended. Therefore, his Honour could not be satisfied beyond reasonable doubt of the offences charged in the indictment. 

65.     I would uphold the appeal and quash the conviction and sentence. 

66.     MANUHU J:  The appellant is aggrieved by the finding of guilt against him in relation to multiple counts of false pretence with intent to defraud under s 404(1) and misappropriation under s 383A(1) of the Criminal Code by Salika DCJ (as he then was) in Waigani on 18 February 2015, and the sentence of 11 years imprisonment (The State v Zebedee Jabri Kalup (2015) N6038).  The appellant was already on parole at the time of the hearing of the appeal.

APPEAL

67.     The grounds of appeal are paraphrased below:

•	the trial judge did not consider his request to transfer the trial to Madang thereby depriving his right to a fair hearing;
•	the State deliberately denied him the right to a fair hearing and due process of a pre-trial conference;
•	the trial judge erred in law by being unfair and biased in his deliberation on each count in that he did not consider the acquittal reports and general ledgers which were sufficient records that some work was done;
•	the trial judge erred in law by being prejudiced and biased during and throughout the trial.

68.     In his appeal against sentence, the appellant pleaded that the sentence of 11 years was unfair in all the circumstances.

MAIN ISSUE 

69.     The main and only issue of fact is whether the funds were applied for the purposes for which they were allocated. How the appellant obtained the funds is not disputed.  The appellant was the owner of Zenalis Waterfalls Limited, North East Trans Limited and Zebedee Sea Freight Limited. He prepared and made four project submissions to the Department of National Planning and Monitoring (DNPM) on behalf of Kiriwina Open MP, Jack Cameron (“MP Cameron”) and Madang Open MP Goli Buka Malai. The projects were approved and four cheques were raised in favour of Zenalis Waterfalls Limited. The breakdown of the cheques and dates of release were as follows:

K500,000.00 	26.02.2011 	Kiriwina Rural Communications Project
K2,500,000.00	01.03.2011	Sitepra Nucleus Estate
K1,000,000.00	02.04.2011	Agriculture Projects
K750,000.00	24.05.2011	Magic Passage Boat Project.

70.     The cheques were picked up by MP Cameron from DNPM who later gave them to the appellant.  All the cheques were deposited into Zenalis Waterfalls Limited bank account at Madang Westpac Branch.

71.     The Task Force Sweep Team was established in August 2011 to investigate misappropriation of funds by or from DNPM.  The said payments were also the subject of investigations by TFST.  The appellant was arrested on 23 January 2012 as a result on investigations by the TFST. The allegations against the Appellant were that he dishonestly applied the proceeds of these cheques; he conspired with Paul Tiensten and others to defraud the State and that he falsely pretended to the Open Member for Madang to endorse the Madang three project submissions with intent to defraud.

FALSE PRETENCE WITH INTENT TO DEFRAUD

72.     The allegations by the State were that the accused falsely pretended to the Open Member for Madang, Mr Malai, to support the project proposals by having the member sign the letters drafted by the accused and that if approved, the money would be deposited into the Madang District Treasury account and obtained endorsement for those projects.  Instead, the cheques were deposited into the Appellant’s company bank account. 

73.     Like the conspiracy to defraud charges, convictions for false pretence would depend on the fate of convictions for misappropriation.  That notwithstanding, I would like to make some observations on the trial judge’s findings.  

74.     The trial judge’s findings are set out below:

Malai’s evidence is that the accused brought the letter to him simply to sign which he happily did.  The manner in which these project proposals were pushed and submitted to the [DNPM] is questionable.  It is questionable because the project proposals never went to the relevant joint district planning and budget priorities committee for deliberation and endorsement.

In this case, the letters which Goli Malai signed were his personal capacity as a leader.  In other words, the proposals did not go to the [DNPM] with proper JDP and BPC endorsements.  There was again, element of secrecy and deceit.  The project proposals were private proposals by Zenalis and that is why the cheques were written out to it rather than the district treasury.  This was a clever way to get around the district treasury and JDP and BPC saw that the cheques could be written out in the name of the accused’s own company. This was achieved successfully in the hope that the money trail would not be followed.

75.     Trial judges are usually better placed to assess the evidence.  It appears, however, that the above findings were against the evidence of Mr Malai.  Mr Malai gave evidence that he was happy to sign for the project proposals because they would benefit his people.  

76.     Mr Malai agreed in cross-examination that he and the Appellant did discuss the Sitepra Nucleus Estate project, Agricultural projects and sea freight maintenance proposals.  He agreed that he was chairman of a steering committee which endorsed these projects.  Mr. Malai reiterated that the projects would benefit his people so he signed the respective letters for funding.  

77.     The Madang Joint District Planning and Budget Priorities Committee may have not approved the project submissions but on his evidence, Mr Malai clearly knew about the proposals.  He was never blindfolded by the Appellant.  Mr Malai knew about the proposed projects, he knew about the project submission and he signed the three supporting letters.

78.     In the circumstances, I am of the view that the trial judge erred in his finding of facts that the appellant falsely pretended to Mr Malai.  Mr Malai was aware of the project submissions and he supported the submissions with his endorsement. For the foregoing reasons, the appeal against conviction of the false pretence offences should be upheld.  

MISAPPROPRIATION 

79.     The main issue in the misappropriation charges is whether the appellant dishonestly applied the proceeds of the four cheques totalling K4,750,000..00.

80.     The trial judge’s findings on each cheque were as follows. In relation to the K500,000.00 cheque, the trial judge found:

The project never got off the ground and the money was diverted by the accused and given back to Jack Cameron…The money has since been misappropriated by the accused and Jack Cameron because the entire K500,000.00 has been misused. The K500,000.00 was earmarked for a purported Kiriwina communication project but it was diverted by the accused and Jack Cameron.

81.     In relation to the K2.5 million for the Sitepra project, the trial judge made these findings:

There is evidence for the accused of buying cocoa seedlings, poly bags and distribution to cocoa farmers.  There is also evidence of paying labourers and workers from the K2.5 million.  The Sitepra project money is different from the K1 million funding for the agriculture projects for the Madang District.  The Sitepra project and agriculture project appear to me to address the same issue of agriculture projects.  The question is; what was the K1 million spent on and what was the K2.5 million spent on?  The evidence is that the ACCUSED was writing out cheques to companies and individuals left right centre without identifying what the cheques or cash payment were for.  This to me amounts to a straight out misuse of public funds.

All that the accused says is that he lodged all the receipts with the taxation office.  He has made no copies of those very important records to help this court and himself as to how the huge amounts of moneys was used.  From bank records, he paid some of the money to his girlfriends and concubines.  He was travelling or commuting between Madang, Port Moresby and Alotau and appear to be spending extravagantly.  There is, however, some evidence from him that he spent some money on buying equipment for the project.  However, his records are scanty and do not assist the court very much.  In any case, that is only the Sitepra project.  There is no evidence how he used all the money from the Sitepra project, the agriculture project. 
	
82.     In relation to the K1 million for agriculture project, his Honour found:

There is no evidence how that money was expended and whether the money was spent on the project at all. …

However, during the course of the trial, no evidence was adduced in relation to the implementation of the project and how the K1 million allocated for that project was expended.  All this court has been given are the project proposal documents but no tangible evidence in the form of photographs or testimonials have been given by anyone to show that the project was implemented.  There is total silence in relation to this project.  Again, Zenalis Waterfalls with its owner has failed to provide receipts of their expenditure on implementing this project.

83.     In relation to the K750,000.00 cheque, his Honour’s findings are:

The cheque, too, was deposited into the bank account of Zenalis Waterfalls.  Moneys had been taken out from that account with no evidence of actual work done on this project.  Again, there is no record on how that money was expended.  There are no receipts of expenditure spent on or for the purpose of this project.  No books of accounts were tendered into evidence as to how the funds were expended.

84.     In the context of the appellant’s grievance as demonstrated in the grounds of appeal, the following are my considered views on the trial judge’s findings.

85.     I note, firstly, that the period from when the Appellant received the four cheques from Jack Cameron to the date of arrest was approximately six months, maybe more, maybe less.  The nature of the proposed projects would have required more than six months to facilitate and implement.  It appears that the appellant was expected to implement the projects within an incredibly short period of time. 

86.     Secondly, the case involved a lot of documentary evidence which only an experienced accountant can reconcile and explain to the court.  When a court is dealing with a charge of misappropriation, it will involve a lot of adding, subtracting and verification.  There were three volumes of the appeal book.  The financial records can be found from page 408 to 1459.  It appears the trial judge (and lawyers) was not properly assisted to make proper findings of fact in relation to how the funds were expended.  Ideally, a forensic expert witness should have given evidence which would have assisted the trial judge, let alone, the lawyers. 

87.      Thirdly, the charges relate to three projects in Madang Province and one project in Kiriwina, Milne Bay Province.  The trial was conducted in Port Moresby.  The application by the appellant for the trial to be moved to Madang was refused.  By holding the trial in Port Moresby, the appellant may have been disadvantaged and denied the opportunity to request the trial judge to visit the project sites (if any).  This is one of the appellant’s contentions in the grounds of appeal.  

88.     Furthermore, the prosecution always bears the burden of proof, in misappropriation cases, to show that some or all of the funds were dishonestly applied, and the amount dishonestly applied has to be specified.  The findings of the trial judge appear to show that the prosecution did not establish misapplication of funds.  In relation to the K2.5 million cheque, for instance, the trial judge said: 

There is, however, some evidence from him that he spent some money on buying equipment for the project.  However, his records are scanty and do not assist the court very much.  In any case, that is only the Sitepra project.  There is no evidence how he used all the money from the Sitepra project, the agriculture project and the sea-freight project. (my underlining)

89.     In relation to the K1 million cheque when he said:

There is no evidence how that money was expended and whether the money was spent on the project at all.

90.     And, in relation to the K750,000.00 cheque, he said:

Again, there is no record on how that money was expended.  There are no receipts of expenditure spent on or for the purpose of this project.  No books of accounts were tendered into evidence as to how the funds were expended.

91.     From these findings, the appellant should have been acquitted.  

92.     There were some findings of misuse of funds but the trial judge failed to specify how much was misused:

The evidence is that the accused was writing out cheques to companies and individuals left right centre without identifying what the cheques or cash payment were for.  This to me amounts to a straight-out misuse of public funds.

And also:

From bank records, he paid some of the money to his girlfriends and concubines. He was travelling or commuting between Madang, Port Moresby and Alotau and appears to be spending extravagantly.

93.     The trial judge also found that some funds were properly used but again, he failed to ascertain the amount that were spent on the seedlings, and poly bags:

There is evidence for the accused of buying cocoa seedlings, poly bags and distribution to cocoa farmers. There is also evidence of paying labourers and workers from the K2.5 million.

And, also: 

There is, however, some evidence from him that he spent some money on buying equipment for the project.

94.     I consider that there was insufficient evidence of the elements of the offences of misappropriation. 

BURDEN OF PROOF 

95.     When it seemed that the prosecution had not established a clear case of misapplication of funds, the trial judge appeared to shift the burden of proof on the appellant to prove his innocence:

All that the accused says is that he lodged all the receipts with the taxation office.  He has made no copies of those very important records to help this court and himself as to how the huge amounts of moneys was used.

And, also:

There is, however, some evidence from him that he spent some money on buying equipment for the project.  However, his records are scanty and do not assist the court very much.
  
96.     It appears that the trial judge also failed to consider and weigh the documentary evidence presented by the appellant.  The appellant gave a lot of documentary evidence on the projects.  His oral evidence is from page 197 to 257 where he gave an explanation on the project submissions and how funds were spent.  The trial judge did not consider his evidence at all in his ruling.  

97.     It is the duty of a trial judge to consider the evidence, weigh the evidence and make findings of facts upon which a finding of guilt or otherwise should be based.  It was held in the case of Re Fisherman’s Island [1979] PNGLR 202 at 208 that:

There is ample authority for the proposition that every judicial officer in the exercise of his judicial functions should state, to the best of his ability, the facts he finds and the reasons for his decision (see De Iacovo v Lacanale [1957] VR 553 at 558).

And at p 209:

In a lengthy and complex case involving a number of issues the reasons should contain a statement of the findings on disputed issues and the reasons should contain a statement of the findings on disputed issues and the reasons should be coherent, intelligible and comprehensive.
 
98.     In this case, I am of the view that the findings in respect of the four cheques in question were shallow and inadequate. Perhaps the investigation was rushed.  The appellant was arrested six months after he received the cheques. There was no forensic examination of how the funds were expended. In these circumstances, it appears the trial judge was not properly assisted and failed the temptation to shift the burden on the appellant to prove his innocence rather than insist upon the prosecution proving its allegations.

99.     My views in relation to the proceeds of the four cheques are as follows. I am of the view that in relation to the K500,000.00 cheque, the trial judge found that the money does not belong to MP Cameron and so by giving him some money, the appellant is guilty of misappropriation.  The trial judge did not consider that MP Cameron is a member of Parliament who supported the project on Kiriwina.  The trial judge did not consider that the appellant’s engagement was terminated by MP Cameron. There is no evidence or suggestion of a personal relationship between the appellant and MP Cameron.  It appears that the appellant gave the money based on trust.  All of these cast a shadow of doubt on the element of dishonesty in relation to the charge.

100.     In relation to the three projects in Madang, it is clear that it was necessary for the prosecution to establish their foundation evidence – that such specific amount was used on items that were outside the scope of the projects. As it is, the State failed to establish that the appellant misused funds. Then the trial judge appeared to shift the burden of proof to the appellant to proof his innocence. When the appellant produced his acquittals and ledgers, the trial judge did not consider them at all.

CONCLUSION

101.     I am of the view, therefore, that based on these reasons, the findings of guilt in relation to the four cheques are shaky and unsafe. The fatality of the misappropriation convictions means that the other convictions are also unsafe. I would therefore entirely uphold the appeal and quash all of the convictions and the sentence. 

102.     KOEGET J: I have read the judgments of Justice Kirriwom and Justice Manuhu and I concur with their Honours for the reasons given. I have nothing to add.

103.     BY THE COURT: The decision of the Court is that the appeal is upheld, convictions of the appellant on all charges in the indictment are quashed and verdict of not guilty is entered.

ORDER

104.    The order of the court is that:

(i)	the appeal is upheld
(ii) 	the conviction of the appellant on all charges are quashed and sentence set aside.
________________________________________________________________
Public Solicitor: Lawyer for the Appellant 	
Public Prosecutor:  Lawyer for the Respondent