SC2842

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA 34 OF 2024 

PAULSON UNDI
Appellant 

v

THE STATE
Respondent 

WAIGANI: MOGISH A-DCJ, BONA J, CHRISTENSEN J 
24, 27 NOVEMBER 2025

CRIMINAL APPEAL – Appeal against conviction – s 202 of the Criminal Code – refusal as a public officer to perform duty – elements – auditor’s duty to produce report – omission to produce report – perversely – without lawful excuse – unsafe or unsatisfactory – whole of the evidence – appeal dismissed 

The appellant was a senior auditor with the Office of the Auditor-General. He was tasked to assist with a police investigation in Goroka. He did not produce a report as a result of the investigation to either the police or the Auditor-General. He appealed against his conviction for refusal as a public officer to perform his duty, contending that the verdict was unsafe or unsatisfactory.   

Held

(1)	The interpretation of the elements in s 202 of the Criminal Code were correctly determined by the trial judge.

(2)	The appellate court is to consider the whole of the evidence when determining whether a conviction is unsafe or unsatisfactory. 

(3)	The whole of the evidence in this matter reveals that the circumstances in which the appellant omitted to undertake his duty to produce a report were such that his omission was perverse and without lawful excuse. 

Cases cited

John Beng v The State [1977] PNGLR 155, SC112
Pari and Kaupa v The State [1993] PNGLR 173, SC420
The State v Paulson Undi (2024) CR(FC) 12 of 2022, N11480

Counsel

N Hukula for the appellant 
T Aihi for the respondent 

1.	BY THE COURT: On 19 February 2024, the appellant Paulson Undi was convicted after a trial of an offence of refusal as a public officer to perform duty contrary to s 202 of the Criminal Code: The State v Paulson Undi (2024) CR(FC) 12 of 2022, N11480. 

2.	The appellant was employed as a senior auditor with the Office of the 
Auditor-General. He was tasked under a memorandum of understanding between that office and the police to assist with a police investigation into Nokondi Investment Limited, a business entity of Eastern Highlands Provincial Government. The State alleged that the appellant was required to produce a report from this investigation as part of his duties. 

3.	By December 2018, the appellant had not produced a report for Nokondi Investment but rather had produced a report as a result of an investigation into a different entity, the Goroka District Development Authority (GDDA). The 
Auditor-General had not sanctioned the appellant’s involvement in the investigation for GDDA, and the circumstances in which the appellant produced a report for GDDA were relied upon by the State as informing the contended perversity and unlawfulness of omitting to provide the Nokondi Investment report. 

4.	The essence of the State’s case was that the appellant had a duty to report on the Nokondi Investment books, but that he omitted to do that act and instead engaged in other work through his own company: The State v Undi at [4]. 

5.	The appellant appeals against his conviction pursuant to ss 22 and 23(1)(a) of the Supreme Court Act and in accordance with the well-known principle in John Beng v The State [1977] PNGLR 155, SC112  that “the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness of the verdict before the appeal will be allowed”. 

6.	For the purposes of this appeal, it is also relevant to recall in full what was said by Ellis J in Pari and Kaupa v The State [1993] PNGLR 173, SC420 as to the duty of the appeal court to consider the whole of the evidence. His Honour stated: 
It is not an uncommon tactic in a criminal appeal in this country for a lawyer to indicate particular aspects of the evidence against convicted appellants and then to venture the conclusion that the verdict was unsafe and unsatisfactory. The proper evidentiary approach in a criminal trial may be likened to a bundle of sticks which might be individually broken but not collectively. In like manner, it is a fallacy to raise a doubt in relation to individual aspects of the evidence because the State is not required to prove each evidentiary aspect of its case beyond reasonable doubt: the proper approach is to look at the whole of the evidence and to consider whether the charge has been proven beyond reasonable doubt.
When a submission is made that a verdict is unsafe and unsatisfactory, it is not sufficient to categorise the evidence and explain away various categories in isolation as if evidence exists in separate, water-tight compartments. An appellate court judge, confronted with a claim that a conviction is unsafe and unsatisfactory, does not have an option but a duty to consider the whole of the evidence, laborious though that may be in a case such as the present.

The trial

7.	The appellant was indicted in accordance with s 202 of the Criminal Code that: 

between the 18th day of July 2018 and the 31st day of December 2018 at Goroka, Eastern Highlands Province in Papua New Guinea, he, being employed by the public service in the Auditor-General’s office, perversely and without lawful excuse, omitted to do an act, namely provide a report, that was his duty to do by virtue of his employment. 

8.	Section 202 of the Criminal Code provides:

Refusal by public officer to perform duty 

A person employed in the Public Service, or as an officer of a court or tribunal, who perversely and without lawful excuse omits or refuses to do any act that it is his duty to do by virtue of his employment is guilty of a misdemeanour.

9.	The trial was heard over five days. The brief facts particularised the State’s case as being that the omitted report related to the books of Nokondi Investment. To whom the report was to be provided was not specified, beyond the State’s case being that the appellant had a duty to produce a report on his findings. 

10.	The State called two witnesses, being the Auditor-General Mr Gordon Kega and retired Detective Chief Superintendent Matthew Damaru, who was the police officer responsible for seeking assistance for the Nokondi Investment investigation. 

11.	The appellant gave evidence in his defence, and called a police officer, Chief Inspector Timothy Gitua. This officer also had knowledge as to the Nokondi Investment investigation at the preliminary phase, and he sought the appellant’s assistance with the GDDA investigation. 

Grounds of Appeal 

12.	Three grounds of appeal are relied on. The second ground of appeal in the notice was abandoned as the premise of the ground was a contention of a decision of the trial judge that was without foundation in the decision on verdict. The grounds of appeal, renumbered, are therefore:

(1)	The trial judge erred when it was determined that the term “duty” used in 
s 202 was not restrictive and thus extended beyond specific duties as an auditor with the Auditor-General’s office. 

(2)	The trial judge erred in both fact and law when it was found that the appellant had a duty to provide a financial audit report to the Auditor-General, when no such duty or expectation was expressed or directed to the appellants to do so, other than to assist police in its criminal investigation. 

(3)	The trial judge erred in both fact and law in finding that the appellant had perversely, or deliberately or unreasonably omitted to provide a forensic audit report into the financial affairs of Nokondi Investment Limited to the Auditor-General. 

13.	Each of these grounds were pressed, although it is apparent that the real substance of the appeal relates to particular elements of the offence, these being: 

(a)	whether the provision of a report was a duty to be done by the appellant by virtue of his employment; and 

(b)	whether it was established beyond reasonable doubt that the appellant’s omission was done perversely and without lawful excuse., 

14.	Each ground of appeal will be considered, with a focus towards the essence of the elements in contention. 

Ground (1) – The trial judge erred when it was determined that the term “duty” used in s 202 of the Criminal Code was not restrictive and thus extended beyond specific duties as an auditor with the Auditor-General’s office. 

Ground (2) – The trial judge erred in both fact and law when it was found that the appellant had a duty to provide a financial audit report to the 
Auditor-General, when no such duty or expectation was expressed or directed at the appellant to do so, other than to assist police in its criminal investigation. 

15.	The first ground of appeal was further explained in the notice of appeal that the expression “duty to do by virtue of his employment” as used in s 202 of the Criminal Code refers to a specific duty for which the appellant was required to do by virtue of his employment. 

16.	In the oral submissions on behalf of the appellant, it was conceded that there was no issue taken with the statutory interpretation undertaken by the trial judge in determining the meaning of “duty” in s 202 of the Criminal Code. 

17.	Such concession was appropriate, with it apparent that the trial judge comprehensively considered the issue and appropriately reached a conclusion that “[w]hlist the duty must be one that arises by virtue of employment in the Public Service there is no basis for a restrictive view to be taken when determining what that duty is”: The State v Undi at [101]. 

18.	Accordingly, ground one is not to be misunderstood as contending that a different interpretation of s 202 of the Criminal Code arises. Rather, it was submitted that the issue raised in ground one of the appeal relates to the factual finding of the trial judge. That is, whether the evidence established that the appellant had a duty to provide a report, and to whom it was required to be provided. In this sense, ground one and ground two are closely related and it is convenient to consider them together. 

Submissions

19.	The respondent submitted that the duty was to provide a report to both the police, and to the Auditor-General. The requirement to provide a report to the 
Auditor-General was submitted to be an inherent duty of the appellant’s position and role as an auditor. The appellant was still accountable in his duties to the Auditor-General, even if tasked to assist the police.   

20.	The appellant’s submissions focused on particular aspects of the 
Auditor-General’s evidence to the effect that the appellant was released to the police investigation to assist the police with the investigation. It was submitted on behalf of the appellant that it was not established on the evidence that there was a duty to provide a report, or, to the extent that there may have been, the duty only went as far as providing a report to the police as part of the provision of assistance to police. 

Consideration

21.	The premise, and flaw, of the appellant’s submission is that it relies on an aspect of the Auditor-General’s evidence in isolation.   

22.	However, when the issues as they arose in the trial and the full extent of the evidence is considered it is clear that it was open to the trial judge to find the requisite duty was established.

23.	Firstly, contrary to the submissions on the appeal, it was not in issue at the trial that the appellant had a duty to produce a report and that no such report was ever produced by him, to either the police or the Auditor-General. At the trial, it was not in issue whether the report was required to be produced to the 
Auditor-General or to the police. Rather, the parties were in agreement from the outset that the primary issue was the element of ‘perversely and without lawful excuse’. 

24.	Secondly, the evidence, significantly, included the appellant’s own evidence to the effect that he understood and accepted he had a responsibility to produce a report, and an acknowledgement that he did not produce a report into Nokondi Investment. 

25.	The provision of a report was a routine duty in his role as an expert forensic accountant. The appellant’s evidence was that the provision of the report was typically only provided to the police, and not to the Auditor-General, with this a long-standing arrangement. He could though inform the Auditor-General with a status update on the investigation and could advise the Auditor-General if he could not provide a report. 

26.	In addition, the evidence, as relied upon by the trial judge, included that the appellant continued to be required to report to the office of the Auditor-General and to follow its directions. The evidence of the Auditor-General himself was that he was entitled to a copy of the report, albeit it would go to the police first. 

27.	It is clear on the evidence that the appellant had a duty to produce and provide a report. Whether that was a report that was ultimately to be disclosed to the 
Auditor-General is not of consequence in the issues as raised in the trial. It was at least a requirement that the Auditor-General be informed as to the status of the report, and that a report be produced and provided to at least the police.  The appellant plainly failed to produce a report and failed to fulfill his duty as required. 

28.	The first and second grounds of appeal are not established. 

Ground (3) – The trial judge erred in both fact and law in finding that the appellant had perversely, or deliberately or unreasonably, omitted to provide a forensic audit report into the financial affairs of Nokondi Investment Limited to the Auditor-General. 

29.	The third ground then focuses on the elements in contention of whether the omission of the report was done perversely and/ or unlawfully.  

30.	The trial judge again gave comprehensive consideration to these elements and again reached appropriate conclusions as to the meaning of them. 

31.	On the appeal, the submissions of the appellant focused on factual aspects, it being submitted that there was evidence that at the time of the appellant’s investigation into Nokondi Investment there was violence in Goroka which limited the ability of the appellant to obtain source documents necessary for the report. He also experienced the theft of his laptop. It was submitted that the evidence established that the appellant attempted to produce a report, but that he was prevented from doing so and he informed his employer as to these challenges as required. 

32.	However, again, this is not the extent of the evidence that was adduced and that was considered by the trial judge with respect to these elements.  

33.	There was evidence that there were incidents of violence and an administrative impasse at the commencement of the investigation period. But, as the trial judge found, there was also evidence that this was limited to that commencement period, and that thereafter the appellant had ample opportunity to finalise investigations and to provide the report. He failed to do so. 

34.	He also failed to provide any reasonable, or lawful, explanations for not doing so. The correspondence includes, as the trial judge observed, that the appellant’s laptop was stolen in mid September, and still by December 2018 the appellant had not produced a report. This was despite multiple occasions of email correspondence from his supervisor requesting progress on the provision of the report. 

35.	Additionally, the centrality of the ‘other investigation’ to the decision of the trial judge is expressed as follows in the decision on verdict:

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

[149] The evidence establishes beyond reasonable doubt that the accused failed to produce the Nokondi report in favour of producing a report for the GDDA investigation....he did so for his own purposes....he did so without permission...the combination of circumstances leads to the inevitable conclusion beyond reasonable doubt that the omission was perverse, that it was wilful and unreasonable. The evidence excludes any other rational inference. 

36.	When the extent of evidence is understood in full, being the entirety of circumstances as they were while the appellant was in Goroka charged with producing a report into Nokondi Investment, the perversity and unlawfulness of his omission can be properly understood. As was expressed in the decision on verdict, “he chose to concentrate his efforts on the GDDA investigation and abandon his duty to Nokondi” (at [120]). The trial judge was correct to find these elements established beyond reasonable doubt. 

37.	The third ground of appeal is not established. 

Conclusion 

38.	The decision on verdict by the trial judge was carefully considered and was based on the credible evidence. There has been no assertion that the trial judge demonstrably or fundamentally misconceived the evidence, and it is clear that her Honour did not do so.    

39.	The appeal relied on particular aspects of the evidence, rather than considering the whole of the evidence. When the evidence as a whole is considered, it is plain that the appellant failed in his duty to provide a report, and that he did so perversely and without lawful excuse. The trial judge’s findings are supported by the evidence. 

40.	The appellant has not established that the verdict should be set aside on a ground that under all the circumstances of the case the verdict is unsafe or unsatisfactory. Accordingly, the appeal must be dismissed. 

Orders

41.	For those reasons, the following orders are made:

(1)	The appeal against conviction is dismissed. 

(2)	The conviction by the National Court for refusal as public officer to perform duty is confirmed. 
________________________________________________________________
Lawyer for the appellant: Public Solicitor
Lawyer for the respondent: Public Prosecutor