SC2833

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 67 OF 2024

DR HARRY POKA, FR SIMON KEWANDE & JOHN YUL BRO
Applicants

AND
THE STATE
Respondent

WAIGANI: BERRIGAN J
2 OCTOBER, 19 DECEMBER 2025

CRIMINAL LAW – Application for review of conviction – application for leave to make a slip rule application – principles applying – application dismissed.

Cases cited

Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063 
Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752
Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412

Counsel

C Gagma for the applicants
R Luman for the respondent State

DECISION

1.	BERRIGAN J: This is an application seeking leave under Order 11 Rule 32(1)(2) and (3) of the Supreme Court Rules to make a slip rule application. 

2.	The applicants were jointly convicted of conspiracy to defraud the State of, and of misappropriating State monies in the sum of, K175,000, contrary to s407(1)(b) and s 383A(1A), Criminal Code, respectively. Dr Harry Poka was further convicted of abuse of office, contrary to s 92(1), Criminal Code. 

3.	At the time Fr Simon Kewande and Mr John Yul Bro were the Chairman and Deputy Chairman of the Board of Sir Joseph Nombri Kundiawa General Hospital, respectively.  Dr Harry Poka was the hospital’s Chief Executive Officer.

4.	The State alleged that the applicants conspired to and did pay monies intended for the hospital to a consultant, Mr Peter Gamai, to which he had no entitlement and, furthermore, that Dr Poka abused his office in this regard.

5.	The applicants applied to review their convictions pursuant to s 155(2) of the Constitution on several bases such that the trial judge erred in: a) finding that the applicants acted with an intention to defraud and/or dishonestly; b) failing to warn himself when considering the evidence of certain State witnesses; c) failing to apply the defence under s 41, Public Hospital Act 2004; and e) finding that Dr Poka acted arbitrarily in abuse of his office.

6.	The Court (Salika CJ and Berrigan J, Narokobi J) dismissed the applications for review on 29 May 2025.  

Principles governing a slip rule application

7.	The principles governing a slip rule application are well settled. In Andrew Trawen and Anor v. Stephen Pirika Kama and Ors (2010) SC1063 the Court, comprising five judges, after a review of the authorities, confirmed that a slip rule application is to correct a glaring error or mistake in a judgment or order of the Court. Such a mistake would be either clerical, an accidental omission in a judgment or order or would be a misapprehension of fact or law (Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752).  The following principles govern slip rule applications to the Supreme Court for it to reopen one of its decisions:

(a) there is a substantial public interest in the finality of litigation.
(b) on the other hand, any injustice should be corrected.
(c) the Court must have proceeded on a misapprehension of fact or law.
(d) the misapprehension must not be of the applicant’s making.
(e) the purpose is not to allow rehashing of arguments already raised.
(f) the purpose is not to allow new arguments that could have been put to the Court below.
(g) the Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.

8.	As to an application for leave to make a slip rule application there are two preconditions to the grant of leave. First, the applicant must, in accordance with Rule 32(1), seek leave within 21 days after the order disposing of the proceedings. Secondly, the applicant must satisfy the Court that the slip rule application would have a strong chance of success: Anderson Agiru v. Aluago Alfred Kaiabe (2015) SC1412.

Grounds

9.	The joint application was filed on 19 June 2025 and within time.

10.	The application contains five grounds, the first of which was abandoned. The grounds are lengthy. In summary, it is contended that the Court slipped in: a) finding that the engagement and payment of consultancy fees did not comply with procurement processes; b) not establishing the intention of the applicants to dishonestly and fraudulently apply the money to Peter Gamai beyond reasonable doubt; c) affirming that there was a conspiracy to defraud between the applicants; and d) dismissing the application for review and affirming both conviction and sentence when the decision on sentence is the subject of a separate review pending hearing. 

Ground a) the Court’s finding that the engagement and payment of consultancy fees did not comply with procurement processes lacked substance

11.	The ground states that: “the Court’s affirmation that the engagement and payment of consultancy fees did not comply with procurement process lacked substance in so far evidence of procurement process and the threshold limit of the Hospital Board to make decision pursuant to their powers under section 6 of the Hospital Act. The Court did not satisfy itself with the procurement process as well as the threshold limit of the Hospital Board to publicly tender a project or closed tender within Hospital Board limits. At the trial, the State disclosed that the threshold limit for the Board was K500,000.00. The amount of K175,000.00 is within the Hospital Board threshold limit to award contracts to any person by way of Board meeting resolutions and execution of service contracts. All Board members were present at the meeting and resolved to engage Peter Gamai, however, the two members only out of all the Board members were criminally charged for that decision and subsequent payments. The Court ought to have made a finding that the Board meeting resolution to engage Peter Gamai and subsequent execution of consultancy contract, project steering committee meeting resolutions was legitimate procurement processes and the amount of money was within the threshold limit and as such no intention exists to dishonestly defraud the money”.

12.	This is a criticism of the Supreme Court’s decision rather than an argument that the Court has slipped. The arguments referred to regarding the procurement process were put before the Supreme Court at the hearing of the appeal and considered. The Court found that there was no error in the judge’s finding that the applicants conspired to and did pay monies intended for the hospital to a consultant, to which he had no entitlement, having regard to a range of circumstances, including a failure to comply with the procurement process. This ground of the application has no prospect of success. 

Ground b) the Court slipped in not establishing the intention of the applicants to dishonestly and fraudulently apply the money to Peter Gamai beyond reasonable doubt

13.	The ground states that: “The Court’s affirmation of the National Court decision slipped in the applicants in not establishing the intention of the applicants to dishonestly and fraudulently applied the money to Peter Gamai beyond reasonable doubt. The administrative procurement process has been followed and all have them played their role in their respective capacities at the material time. There appears to be no evidence of preplanned and executed with an intention dishonestly applied the money to Peter Gamai. The intention of the applicants in the act has not been established to allow for dishonesty to prove beyond reasonable doubt as it is an element of the offence of misappropriation. The Court should have made a finding that there was no intention but the applicants only performed their duties or obligations within their employment which was unfortunate in the circumstances.”

14.	In submissions the applicants further contended that the Court relied on circumstantial and uncorroborated evidence to establish dishonesty on the balance of probabilities. 

15.	This ground is without merit and has no prospect of success. It is again a criticism of the Court’s decision and an attempt to reagitate the issues determined on the appeal.  Whether the convictions for misappropriation were safe in each case with respect to the element of dishonesty was considered in detail by the Court having regard to the evidence established and the principles applying. Nowhere in its decision nor the trial judge’s decision was the element of dishonesty considered by reference to the balance of probabilities. 

16.	The Court expressly considered the subjective requirement of the element when considering the trial judge’s finding of dishonesty against each of the applicants. As it said at [17]:

“It is the case that the trial judge did not expressly refer to the subjective test when considering the element of dishonesty for the purposes of the misappropriation charge. There can be no doubt, however, that it was dishonest according to the standards of honest and reasonable people for Dr Poka to apply State monies to Mr Gamai’s use knowing that he had no entitlement to those monies and furthermore that Dr Poka must have appreciated that it was dishonest according to those standards having regard to his age, experience and education: Brian Kindi Lawi v The State [1987] PNGLR 183; Wartoto  v The State (2019) SC1834; Havila Kavo (2015) SC1450 applied.  Similarly, there can be no doubt that Fr Kewande and Mr Bro aided him for the purpose of s 7(1)(c), Criminal Code knowing that he held the requisite intention which, as above, they also held.” 

17.	For similar reasons the Court found that the applicants had failed to demonstrate any error in the trial judge’s finding that the applicants conspired with one another to defraud the State by using dishonest means to deprive the State of the monies alleged. 

Ground c) the Court slipped in affirming that there was a conspiracy to defraud between the applicants

18.	The ground in this case is longer than the above two grounds and the submissions in support of it extend over 12 paragraphs. It is contended that the Court should have applied the test which is applied on a no-case submission. The evidence was twisted by unreliable witnesses. The Court was required to assess the conduct of each of the applicants in isolation and Dr Poka had an honest claim of right. 

19.	The arguments regarding the conduct of the applicants and the safeness of their conviction for conspiracy was heard and determined at the appeal.  The issue of unreliable witnesses was expressly considered and dismissed. The applicants were charged and tried together. The trial judge was required to consider the totality of the evidence admissible against each of the accused when considering their respective guilt. The applicants failed to raise or demonstrate any error on the part of the trial judge in this regard. The Court made clear that the trial judge’s findings excluded beyond reasonable doubt the possibility that the applicants acted in an honest claim of right and without an intention to defraud having regard to the principles applying. The ground has no prospect of success. 

Ground d) dismissing the application for review and affirming both conviction and sentence when the decision on sentence is the subject of a separate review pending hearing

20.	The applicants complain that the Court dismissed the application for review and affirmed the sentence in each case when the review was for conviction only and the review of sentence is a separate proceeding (SCRev No 110 of 2022, Dr Harry Poka & Ors v State), which is pending hearing. 

21.	The State contends that there is no evidence in the supporting material to establish that there are separate proceedings on foot. That is beside the point.

22.	The review was against conviction only, not sentence. The Court dismissed the review and affirmed the sentences. As I understand it that is a standard order. That does not preclude the bringing of any application for leave for, or application for, review of sentence.

23.	This ground too is without merit.

Orders 

24.	I make the following order:

(1)	The application for leave to make a slip rule application is dismissed.

________________________________________________________________
Lawyer for the applicants: 	Gagma Legal Services 
Lawyer for the respondent	Public Prosecutor