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Poka v Independent State of Papua New Guinea [2023] PGSC 21; SC2372 (31 March 2023)

SC2372

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR APP NO. 39 OF 2020

BETWEEN:
DR. HARRY POKA, FR. SIMON FEWANDE AND JOHN YUL BRO
Appellants

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Collier, Miviri & Tusais JJ
2023: 31^st March

PRACTICE AND PROCEDURE – Evidence – Application for fresh evidence – s 6(1) Supreme Court Rules – principles of fresh evidence – where appellants failed to establish that evidence not reasonably capable of being adduced before the trial Judge – where evidence available but not secured at trial – whether in interests of justice to allow evidence – application dismissed

Facts

The appellants were convicted of counts of Misappropriation, Conspiracy to Defraud and Abuse of Office relating to the payment to a consultant of monies in the amount of K175,000 procured for hospital facilities. The appellants appealed and applied to have fresh evidence adduced in the appeal. This evidence was that of the consultant, and the Auditor-General’s 2017 Audit Management Report on the hospital.

Held:

The evidence sought to be adduced in the appeal to the Supreme Court was not fresh evidence within the meaning of s6 (1) Supreme Court Act. Application to adduce this evidence refused.

Cases Cited:

Merriam v State [2000] SC654
Pari v State [1993] PNGLR 173
Poga v Damaru [2020] SC1938

Counsel:

Mr C Gagma, for the Appellants
Ms L Maru, for the Respondent

REASONS FOR JUDGMENT

31^st March, 2023

1. BY THE COURT: Before the Court is an application filed by the appellants, Dr Harry Poka, Father Simon Kewande and Mr John Yul Bro, on 22 March 2023 (fresh evidence application) seeking the following relief:
   
   • 1.1 Pursuant to section 155(4) of the Constitution, Order 5 rule 6 of the Supreme Court Rules and the inherent powers of the Court, the requirement for personal service of documents filed in the Appeal on the Respondent is dispensed with and service of this application documents on the Respondent be accepted as proper service.
   • 1.2 Pursuant to section 155(4) of the Constitution, Order 5 rule 6 of the Supreme Court Rules and the inherent powers of the Court, the time requirement to serve this Application and supporting documents be abridged and it is heard forthwith.
   • 1.3 Pursuant to section 155(4) of the Constitution, Section 6(1) of the Supreme Court Act Ch. No. 37 and the inherent powers of the Court, leave be granted to allow the appellants/applicants to introduce fresh evidence in support of the Appeal which were not the evidence before the Kundiawa National Court in a consolidated proceedings styled CR (FC) No. 143 of 2018 – State v. Dr Harry Poka CR (FC) No. 1116 of 2018 – State v. Simon Kewande and CR (FC) No. 1117 of 2018 – State v. John Yul Bro
   • 1.4 Pursuant to section 155(4) of the Constitution, Section 5(1)(a)(b) of the Supreme Court Act and Section 6 (1) of the Supreme Court Act and Order 7 Rules 52 and 56 of the National Court Rules, the inherent powers of the Court, leave be granted for the following documents to be allowed and received into evidence:

(a) Affidavits of Peter Gamai filed in the National Court, one together with the Means Assessment Report after the Conviction; and
(b) Affidavit of Peter Gamai filed after the sentence; and
(c) The Hospital Board decision; and
(d) The Auditor General Report dated; and
Those that are annexed to the affidavit of Dr. Harry Poka file together with this application.

1.5 Pursuant to section 155(4) of the Constitution, and Section 5(1)(a)(b) of the Supreme Court Act and Order 5, Rule 6 of the Supreme Court Rules, the Court issue Directions in relation to allowing and receiving of evidence in the Appeal and to be included in the Appeal Book.
1.6 Costs of this application be in the Appeal.
1.7 Any further orders or directions this Court deems proper.
1.8 Time be abridged to date of settlement which shall take place before the Registrar forthwith.

(errors in original)

2. We note that the appellants did not press paragraphs 1.2 and 1.2 of the fresh evidence application on the basis that events had overtaken that aspect of the application.
   
3. The grounds relied upon by the appellants in support of the fresh evidence application were as follows:
   
   1. The appellants were charged, indicted and found guilty at trial and convicted on one count of Misappropriation pursuant to s. 383A(1)(a) and one count of Conspiracy to Defraud pursuant to s.407(1)(b). Dr. Harry Poka was found guilty on one count of Abuse of Office pursuant to s.92 (1) of the Criminal Code Act.
      
   2. The Appellants plead NOT GUILTY at the indictment, they maintained not guilty throughout the criminal proceedings even after the conviction and sentence they maintained innocence and hoping for justice and truth to prevail.
      
   3. The Parole officers filed the affidavit of Peter Gamai after the conviction which he deposed that he was paid the K175,000 and he benefited. He denied any conspiracy with the appellants and never knew them, and he benefited from the money paid by the Hospital and have not paid or shared with the appellants.
      
   4. Peter Gamai filed affidavit in the National Court after the appellants were sentenced and suspended on the condition that the appellants reimburse the K175,000 in equal portions. He deposed that he had paid the K175,000 in full direct to the Hospital account. This evidence is very significant to saw that the conviction was unsafe and unsatisfactory.
      
   5. After the conviction, the Auditor General’s Audit Reports for 2017 and 2018 were published and that the K175,000 payment was made within the budget for the purposes of the hospital projects. This evidence is crucial to support the contentions that the conviction was unsafe and unsatisfactory.
      
   6. The trial judge overlooked the overwhelming evidence before the National Court that the Appellants acted in accordance with the resolution of the Hospital Board, the Consultancy Agreement and the Project Steering Committee which was based on the invoice supplied by Peter Gamai.
      
   7. This evidence goes to affirm our position that we were not guilty and maintained our innocence even after conviction and sentence. This evidence is very significant to saw that the conviction was unsafe and unsatisfactory.
      
   8. After our conviction, the Auditor General’s Audit Reports for 2017 and 2018 were published and that the Audit verify the payment of K175,000 payment as being made within the budget for the purposes of the hospital projects. This evidence is crucial to support the contentions that the conviction was unsafe and unsatisfactory.
      
   9. The evidence will assist the court and the parties for a fair and just adjudication in the dispensation of justice as they are necessary to establish the grounds of appeal. Those affidavits affirm the appellants’ pleaded Not Guilty and maintained innocent even after the conviction and sentence and the appellant’s contention that the conviction was unsafe and miscarriage of justice.
      
   10. The evidence will assist the court and the parties for a fair and just in the dispensation of justice as they are necessary to establish the grounds of the appeal and the appellant’s contention that the conviction was unsafe and a miscarriage of justice.
       
   11. In the interest of justice, the court grants leave to the Appellant to allow, receive and use the evidence. It will not prejudice the respondent.

(errors in original)

BACKGROUND

4. On 13 November 2020 the appellants were convicted for Misappropriation, and Conspiracy to Defraud pursuant to ss 383A (1)(a) and 94(1)(b) of the Criminal Code. The first appellant, Dr Poka, was also convicted of Abuse of Office pursuant to s 92(1) of the Criminal Code.
   
5. The agreed facts in the Court below were as follows:
   
   1. On 23^rd September, 2016 a consultancy contract was signed between the former Chief Executive officer of SJNKGH Mr. Mathew Kaluvia, then the Board Chairman Fr. Simon Kewandi and the consultant Peter Gamai to compile a project submission for a new hospital operating theatre building and to follow up and facilitate the release of funds from the Department of National Planning and Monitoring for the construction of the new operating theatre building. The project to be delivered in 2017.
      
   2. After signing the consultancy agreement, Mathew Kaluvia’s term as CEO expired and the accused Dr. Harry Poka was appointed acting CEO of Sir Joseph Nombri Kundiawa General Hospital (SJNKGH). The accused Fr. Simon Kewandi remains hospital board chairman until expiry of appointment in May 2019.
      
   3. On 05^th December, 2016 Public Improvement Program (PIP) fund for 2016 of K3.5 million was paid to Sir Joseph Nombri Kundiawa General Hospital (SJNKGH) project bank account. The Pip funding came from an appropriation by the government under the Public Sector Improvement Program (PSIP) - Hospital Infrastructure.
      
   4. On 23^rd December, 2016 Peter Gamai submitted an invoice to Sir Joseph Nombri Kundiawa General Hospital (SJNKGH) claiming K175,000 being 5% of the K3.5 million recently received. Invoice was attached to an undated letter, the consultancy contract and copies of finance forms and cheque in relation to the K3.5 million kina.
      
   5. At that time the accused, Dr. Harry Poka and John Yul Bro were signatories to the hospital project account in which the K3.5million was paid. The third signatory was Rose Kukhang, the finance manager.
   6. On 23^rd December 2016, the same date the invoice was submitted, Dr. Harry Poka approved the claim to be settled, however the claim was questioned by Rose Kukhang and Yoba Ababa – Administration Manager. The claim or invoice was attached to a letter by Dr. Harry Poka to the Finance Manager without approval stamp on the invoice.
      
   7. Between 23^rd December 2016 and 29^th March 2017 there were two correspondences from the Admin and Projects Manager warning Dr. Harry Poka about the payment of the consultancy fees being improper. Co-accused John Yul Bro as deputy chairman of Sir Joseph Nombri Kundiawa General Hospital (SJNKGH) board and Fr. Simon Kewandi – chairman of the Sir Joseph Nombri Kundiawa General Hospital (SJNKGH) board were copied in on those correspondence.
      
   8. On 17^th February 2017, project steering committee met and deliberated on how the K3.5 million was to be spent. Consultancy fees were to be deducted from the K500,000.00 allocated to administration costs.
      
   9. On 28^th March 2017, Dr. Harry Poka signed a letter saying that he only signed off for the payment because of the existence of the consultancy contract.
      
   10. On 29^th March 2017, both accused Dr. Harry Poka and John Yul Bro being the signatories to the hospital’s project account signed off on a cheque to the sum of K175,000.00 for consultancy services rendered by Peter Gamai.
       
   11. On 30^th March 2017, Fr. Simon Kewandi signed a statutory declaration that the signatories to the claim will not be affected.
       
   12. Cheque deposited into Peter Gamai’s account on 4^th April 2017.
       
6. The appellants were convicted on 13 November 2020. On 11 December 2020 the appellants filed the substantive appeal against conviction. The appellants were sentenced in September 2022.
   

SUBMISSIONS

7. In support of the application, the appellants filed an affidavit of Dr. Poka sworn 16 December 2022. Dr Poka deposed, in summary:
   • Dr Poka maintained his innocence and was hoping for justice and truth to prevail.
   • Based on a Hospital Board decision, a person named Peter Gamai was engaged by the former CEO, Mathew Kaluwia, as a consultant under a consultancy agreement prepared by the Hospital’s lawyer (Consultancy Agreement).
   • The Consultancy Agreement provided that Mr Gamai was to be paid 5% of the total amount of the project funds paid to the Hospital from the National Planning Department.
   • Pursuant to the Consultancy Agreement Mr Gamai “lodged submissions” and followed up with the National Planning Department.
   • At an unnamed date, Mr Gamai issued an invoice for the relevant 5% of K3.5million to be paid.
   • This was brought to the attention of the Project Steering Committee at the Hospital who resolved to pay Mr Gamai.
   • Dr Poka as CEO approved the payment, a cheque was drawn to Peter Gamai and deposited in his account.
   • Parole officers filed the affidavit of Peter Gamai after conviction of the appellants, where Mr Gamai deposed that he was paid the K175,000 and that he benefitted from that. Mr Gamai denied any conspiracy and never knew the appellants.
   • Peter Gamai filed a further affidavit after the appellants were sentenced and the penalties were suspended that the appellants reimbursed the K175,000. Mr Gamai deposed that he had paid the K175,000
   • This evidence affirmed the appellants’ positions that they were not guilty.
   • After the conviction the audit reports of the Auditor General were published. The audit verified the payment of K175,000.
     
8. The appellants submitted in summary:
   
   • It was the parole officers from the Correctional Services facility at Barawagi jail who prepared the Means Assessment Report which was attached to the affidavit of Peter Gamai. Accordingly, that evidence only came to light after the conviction.
   • The former CEO Mr Mathew Kaluwia, resigned and contested the 2017 National Election in East New Britain Province. Accordingly he was not available to give evidence.
   • Mr Gamai was a permanent resident in Port Moresby and therefore was not available to give evidence in the trial.
   • Neither Mr Kaluwia nor Mr Gamai had any contact details.
   • The Police and Prosecution intentionally did not charge Mr Kaluwia or Mr Gamai or name them as witnesses.
   • The second affidavit of Peter Gamai was not available at the time of the trial because Mr Gamai only repaid the money to the hospital after conviction and sentencing.
   • The Auditor General’s Report was published late, and was not available until July 2021, after conviction.
   • The evidence sought to be admitted would assist the Court and parties in the just adjudication and dispensation of justice.
   • The evidence was necessary to establish the grounds of the appeal.
     
9. The respondents submitted in summary:
   
   • The evidence sought to be adduced by the appellants was not fresh evidence within the meaning of s 6 (1) of the Supreme Court Act.
   • The evidence was not credible.
   • The justice of the case does not warrant the admission of the evidence.
   • The appellants were plainly at liberty to call Mr Gamai as a witness during the trial but did not do so.
   • The reports of the Auditor General were available at the time of the trial, however the appellants did not take steps to obtain them.
     

CONSIDERATION

10. At the hearing of the application for fresh evidence, Counsel for the appellants confirmed that the appellants no longer pressed paragraph 1.4(c) of the application. Relevantly, paragraph 1.4(c) sought to adduce the decision of the Hospital Board as fresh evidence. However, as Counsel for the appellants conceded, this material was before the National Court and its admission was refused by the trial Judge. It correctly formed part of the substantive appeal and could not be “fresh evidence”.
    
11. What remains for decision by this Court is whether the following documents, set out in para 1.4 of the fresh evidence application, ought to be adduced in the appeal:
    

(a) Affidavits of Peter Gamai filed in the National Court, one together with the Means Assessment Report after the Conviction; and
(b) Affidavit of Peter Gamai filed after the sentence, and
...
(d) The Auditor General Report dated; and
those that are annexed to the affidavit of Dr. Harry Poka file together with this application.
(errors in original)

12. Insofar as the Court can ascertain from the material before it, this evidence relates to an affidavit of Peter Gamai sworn 11 January 2021, a further affidavit of Peter Gamai sworn 30 April 2022, and a cover letter dated 8 February 2022 enclosing the undated “Audit Management Report of Kundiawa General Hospital for the Fiscal Year Ending 2017” prepared by the Auditor General’s Office (Auditor General’s Report).
    
13. Principles referrable to the admission of fresh evidence in an appeal are well-established. In Pari v State [1993] PNGLR 173 the Supreme Court observed:
    

The nature of what is fresh evidence has now been settled by the Supreme Court in this jurisdiction. Fresh evidence pursuant to s 6(1)(a) of the Supreme Court Act Ch 37 means evidence which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. Such evidence may be admitted on appeal if the court considers that “it is satisfied that the justice of the case warrants it”. See Peng v The State [1982] PNGLR 331 and Abiari v The State [1990] PNGLR 250.

14. See also Merriam v State [2000] SC 654 and Poga v Damaru [2020] SC1938.
    
15. It follows that in order for the appellants’ fresh evidence application to be successful, the appellants must establish:
    

(1) That the evidence sought to be adduced came to light only after the trial and could not with reasonable means be obtained at the time of trial; and

(2) It is in the interests of justice in this case to admit the evidence.

16. We will now turn to evidence in question.
    

Affidavits of Peter Gamai

17. In our view, the appellants had every opportunity to call Mr Gamai as a witness, but for reasons unknown to the Court elected not to do so. We have come to this conclusion for the following reasons.
    
18. First, during the course of the trial before the trial Judge the appellants gave evidence that they had been in contact with Mr Gamai during the course of the relevant events. In particular, we note the following extracts from the judgment, which are not disputed in the substantive appeal:
    

[Dr Harry Poka] said he was threatened by an email from Peter Gamai that legal action would follow if he failed to process payments to him for service rendered as per his contact. He said he was only informed of the work done by Peter Gamai over the telephone, and nothing was done in writing. No emails were sent to update him on work done and that the only email he sent was to threaten him.
...
Dr. Harry Poka in his evidence confirms that he was only conversing with him over the phone. The only email he received from Peter Gamai was the one that threatened to sue him if he did not pay.
...
...John Yul Bro and Father Simon Kewandi were involved in the engagement of Peter Gamai.

19. We also note that, in an undated letter from Mr Gamai to Dr Poka before the primary Judge, Mr Gamai wrote:
    

Please do not hesitate to contact me on the phone: [telephone number redacted] or email:[email address redacted] for any queries for clarification.

20. From this evidence it is reasonable to infer that the appellants had a means of contacting Mr Gamai and securing his evidence during the course of the trial.
    
21. We do not accept the submission that Mr Gamai was unable to be called “because he lived in Port Moresby”. We note, for example, that the appellants’ Counsel appearing at the hearing of the appeal has his place of business in Port Moresby. There was nothing in the material provided by the appellants that indicated that the appellants or their lawyers had made attempts to contact or locate Mr Gamai but were unsuccessful. In the absence of such evidence, it is open to this Court to infer that the appellants knew of Mr Gamai, where he was, and how to contact him, but chose not to call him as a witness in the trial.
    
22. Further, we note that the annexures to the affidavit of Mr Gamai sworn 30 April 2022 have not been included in the application materials. Counsel for the appellants submitted that these annexures were important to the appellants’ case but were excluded because the State opposed their inclusion in the application materials. However, we further note that even in the material handed up by Counsel for the appellants during the hearing and marked as Exhibit 1(a) in the appeal, the affidavit of Mr Gamai included in those materials appeared not to include annexures to his affidavit. It remains unclear why.
    
23. In any event, it is reasonable for the Court to infer that, not only did the appellants have a means of communicating with Mr Gamai by email or telephone, but the appellants would have been aware of a postal address presumably identified on the invoice issued by Mr Gamai. Alternatively, it follows that there must have been some knowledge of Mr Gamai’s location given that Mr Gamai received a cheque from the Hospital. We assume there was some mode of communication with Mr Gamai, for such purposes.
    
24. Lastly, the appellants submitted that the evidence “will establish that the appellants were wrongly persecuted, convicted and sentenced as co-accused and not principal offenders. The money alleged to have been misappropriated has been paid back to the Hospital account by the person who benefited” and it was therefore in the interests of justice to admit it.
    
25. This submission is entirely misconceived. The evidence of Mr Gamai, deposing that he had altruistically made the restitution payment to the Hospital which had been ordered to be paid by the appellants as part of their sentence, defies logic.
    
26. Finally, we query how it could possibly be that the lawyers for the appellants were unable to locate such an allegedly important witness to the appellants as Mr Gamai, either before or during the trial. From the evidence advanced before this Court, it does not appear that Mr Gamai was evading contact by the appellants or their lawyers.
    
27. In our view the provisions of s 6 (1) of the Supreme Court Act are not satisfied. The affidavits of Mr Gamai dated 11 January 2021 and 30 April 2022 are not fresh evidence.
    

Auditor General’s Report

28. Notably, in a cover letter enclosing the Auditor General’s Report, sent by Dr Poka to Dr Francis Wandi, the CEO of the Simbu Provincial Health Authority, dated 8 February 2022, Dr Poka wrote as follows:

...
There are several grounds for my appeal. However, one of the most crucial grounds is the 2017 Auditor’s report done by the Auditor General’s Department. I obtained from the SiPHA’s Internal Audits Department. This report clearly exonerated me from any wrong doing. It is very unfortunate that the report was released late and I obtained a copy in July 2021 after conviction was handed down in November 2020.

(emphasis added)

29. In our view:
    
    • This evidence is not credible;
    • To the extent that it is “evidence” of the late publication of the Auditor General’s Report, it is simply unsupported hearsay;
    • It does not sufficiently point to why the Auditor General’s Report was not available during the time of the trial. Indeed, the correspondence from Dr Poka notes “the report was released late” yet does not identify on what day it was released;
    • That Dr Poka “obtained a copy in July 2021” does not identify why that material was not available to the appellants earlier.
      
30. We note that the Auditor General’s Report itself did not appear, on its face, to disclose a date of publication. However, the appellants submit that they obtained a copy 4 years after the relevant fiscal year. At the hearing the Court was invited to infer that the Auditor General’s Report was in fact published at that time. However, in the absence of any further evidence or explanation as to why it was not available at the time, including what steps were taken to secure the Audit Report, and the actual date of publication, we are not satisfied that the Auditor General’s Report was published after the appellants’ conviction.
    
31. We are not satisfied that this Report was fresh evidence within the meaning of s6 (1) of the Supreme Court Act.
    

CONCLUSION

32. The appellants’ application for fresh evidence is refused.
    
33. The appellants are ordered to pay the respondent’s costs of the application, such costs to be taxed unless otherwise agreed.

________________________________________________________________
Gagma Legal Services: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent