Jimmy Mostata Maladina v The Independent State of Papua New Guinea (2016) SC1495

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J, Sawong J & Higgins J
• Judgment Date: 20 April 2016
• Court: Supreme Court
• Citation: (2016) SC1495
• Docket Number: SCRA. No 11 of 2015
• Year: 2016
• Judgement Number: SC1495

Full Title: SCRA. No 11 of 2015; Jimmy Mostata Maladina v The Independent State of Papua New Guinea (2016) SC1495

Supreme Court: Gavara-Nanu J, Sawong J & Higgins J

Judgment Delivered: 20 April 2016

SC1495

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA. NO. 11 OF 2015

BETWEEN:

JIMMY MOSTATA MALADINA

Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Gavara-Nanu J, Sawong J & Higgins J

2015: 28 October

2016: 20 April

APPEAL – Appeal against conviction – Conspiracy to defraud – Misappropriation – Criminal Code; ss. 383A (1) (a) and 407 (1) (b) – Elements constituting the offences charged.

APPEAL – Evidence – Circumstantial – Credible evidence or mere conjecture and surmise - Inferences to be drawn – Whether guilt the only rational inference that could be drawn– Whether other inferences consistent with innocence excluded.

APPEAL – Standard of proof – Proof beyond reasonable doubt – Prosecution carries the onus of proof – Onus of proof being shifted to the accused.

APPEAL – Right of accused to remain silent – Accused electing to remain silent - Constitution; s. 37 (4) (a) and (10) - No prima facie case established against the accused – Trial judge making adverse findings against the accused – Trial judge misdirecting himself on the law and misapplying principles of law – Trial judge falling into error.

Cases cited:

Allan Oa Koroka v. The State and Mariano Wani Simon v. The State [1988-89] PNGLR 131

Albert Karo v. Ombudsman Commission N1383

Billy Nara v. The State (2007) SC 1314

Fred Bykoya v. The State (2007) SC 887

Isaac Lupari v. Sir Michael Somare MP – Prime Minister and Chairman of the

National Executive Council & Ors SC 1071

Les Curlewis and Reben Renagi v. Protect Security and Communication Limited and David Yuapa SC 1274

Paulus Pawa v. The State [1981] PNGLR 498

Re Fisherman’s Island [1979] PNGLR 202; N197

Rimbink Pato v. Umbu Pupu [1986] PNGLR 310

SCR No.1 of 1980; Res. 22A (b) of Police Offences Act (Papua) 1912 (repealed) [1981] PNGLR 28

SCR N0.2 of 1990: Re s.333 Income Tax Act, 1959 (Amended) [1991] PNGLR 211; SC407

Tabo Sipo v. Mukara Meli (1980) N 240

The Government of Papua New Guinea v. Elizabeth Lauwasi Uguna Moina [1978] PNGLR 184

The State v. Bob Morris N 1743

The State v. Herman Kagi Diawo (1980) N255

The State v. Iori Veraga (2005) N 2849

The State v. Jason Baleng (2006) N3395

The State v. Koivi Ipai (2010) N3972

The State v. Kuriday (1981) N300

The State v. Margeret Gara Torovel [1982] PNGLR 242

The State v. Steven Molu Minji; The State v. Didi Gelwak Sakol (No.1) (2009) N3795

The State v. Tanedo [1975] PNGLR 395

The State v. Tom Morris [1981] PNGLR 493

Other cases cited:

Air Marshall McCormack and Anor v. Vance [2008] ACTA 16

Azzopardi v. R (2001) 205 C.L.R 50

Barca v The Queen (1975) 50 ALJR 108

Chamberlain and Another v. The Queen (No.2) (1983-1984) 153 C.L.R 521

Dyers v. R (2002) 210 C.L.R 285

House v. King [1936] HCA 40; (1936) 55 C.L.R 499

Jones v. Dunkel (1959) 101 C.L.R 298

Micallef v. ICI Australia Operations Ltd & Anor [2001] NSWCA 274

R v. Barbouttis & Ors (1995) NSWSC 115

R v. Hoar (1981) 148 C.L.R 32

R v. Horsington [1982] 2 NSWLR 72

R v. Landey and Others [1981] 1 All ER 1172

Savvas v. R (1995) 1813 C.L.R 1

The Queen v. Lacey [1982] 29 S.A.S.R 525

Weissenstenier v. R (9193) 178 C.L.R 217

Counsel:

I. Molloy & G. Purvey, for the appellant

P. Kaluwin & A. Kupmain, for the respondent

20th April, 2016

1. GAVARA-NANU J: I have had the benefit of reading the judgment of my brothers Sawong and Higgins JJ, in its draft form and I respectfully agree with their Honours’ reasons and conclusions. I would nonetheless like to add some observations of my own.

2. The background facts have been stated fully in the judgment of my brothers and there is no need for me to repeat them here.

3. The appellant was charged with two counts, the first count related to conspiracy to defraud and the second count related to misappropriation.

4. In the first count, it was alleged that the appellant between 1st day of November, 1998 and the 10th day of October, 2000, at Port Moresby, in Papua New Guinea conspired with Herman Joseph Leahy, Henry Fabila, Shuichi Taniguchi, Kazu Kobayashi and others to defraud National Provident Fund Board of Trustees (NPFBT) of K2, 650,000.00 by increasing the cost of construction of the National Provident Fund Tower (the tower) in down town Port Moresby. This count was laid under s.407 (1) (b) of the Criminal Code.

5. In the second count, it was alleged that the appellant between the 26th day of February, 1999 and the 30th day of July, 1999, at Port Moresby, in Papua New Guinea, dishonestly applied to his own use and to the use of others the sum of K2, 650, 000.00, the property of the NPFBT. This count was laid under s. 383A (1) (a) of the Criminal Code.

6. The appellant was convicted of both counts. He now appeals against both convictions.

7. Mr Anthony Kupmain of counsel for the State delivered an opening address before calling evidence, as he was entitled to do. In that address, Mr Kupmain gave a brief outline of the evidence the prosecution intended to adduce to prove the charges. The opening address was significant in that, it informed the Court and the defence that it had such evidence: The State v. Herman Kagi Diawo (1980) N255. Consequently, if the State failed to adduce the evidence then that was a clear indication that it did not have the evidence, and more importantly, the prosecution case could be inherently weak. These were two significant factors the trial judge was entitled to have regarded to at the end of the prosecution case.

8. In respect of the first count, Mr Kupmain told the court that the appellant and his alleged co-conspirators began conspiring in November, 1998, when they agreed that Kumagai Gumi (Kumagai) would charge extra fees, described as “further acceleration fees” on top of the normal cost for constructing the tower which was K50, 000, 000.00. Mr Kupmain told the court that the “further acceleration fees” was K2, 650,000.00, which was the amount the appellant was alleged to have defrauded the NPFBT with and misappropriated (p.28 A/B).

9. In respect of the second count, Mr Kupmain told the court that after the K2, 650,000.00 was paid to Kumagai by NPFBT, Kumagai then paid the amount to a bank account belonging to Ken Yapane and Associates (KYA) which was a subcontractor to Kumagai. Mr Kupmain told the court that the payment was made without the knowledge of Pacific Architecture Consortium (PAC), the tower construction project administrator, KYA then paid the K2, 650, 000.00 to the appellant (p.28 A/B).

10. The appellant was the managing partner of Carter Newell Lawyers (CNL) until his appointment in about January, 1999 as the Chairman of the NPFBT, replacing the former Chairman, Sir Brown Bai. The alleged co-conspirators to the appellant named in the indictment were, Mr Henry Fabila who was the Managing Director of NPFBT, Mr Herman Joseph Leahy who was the Company Secretary for NPFBT, Mr Shuichi Tamiguchi who was the General Manager of Kumagai and Mr Kazu Kobayashi who was the Project Manager for the construction of the tower, also employed by Kumagai. None of these persons gave evidence. The appellant elected to remain silent after the prosecution closed its case, he also did not call evidence.

12. The other person who featured prominently in the case was Mr Ken Yapane, the principal of KYA. He was not charged but was found by the trial judge to be a “conduit” in the alleged transfer of money from Kumagai to the appellant (p. 146 A/B).

13. Addressing first the offence of conspiracy to defraud alleged in the first count, the prosecution needed to establish that there was an agreement, which is an essential element of conspiracy, between the appellant and his alleged co-conspirators, to defraud the NPFBT of K2, 650,000.00 between November, 1998 and 10 October, 2000: The State v. Iori Veraga (2005) N2849. To establish such an agreement, the prosecution needed to show that there was meeting of minds between the appellant and his co-conspirators that they would and did through dishonest means defraud the NPFBT of K2, 650,000.00: The State v. Tanedo [1975] PNGLR 395 at 398 and R v. Landy and Others [1981] 1 All ER 1172.

14. The trial judge found that there was no direct evidence of an agreement (conspiracy) between the appellant and his alleged co-conspirators to defraud the NPFBT, but found that there was circumstantial evidence from which the court could draw an inference of such an agreement, hence the guilt of the appellant.

15. The principles to be applied in deciding the guilt or innocence of an accused in a case resting substantially or wholly on circumstantial evidence are well established. The principles were enunciated by the High Court of Australia in Barca v. The Queen (1975) 50 A.L.J.R 108 at 117, they were first adopted and applied in this jurisdiction by Miles J, in his landmark decision in The State v. Tom Morris [1981] PNGLR 493. That decision was subsequently adopted...