The State v Francis Potape

• Jurisdiction: Papua New Guinea
• Judge: Salika, DCJ
• Judgment Date: 16 October 2014
• Citation: (2014) N5773
• Court: National Court
• Year: 2014
• Judgement Number: N5773

Full : CR No 36 of 2012; The Independent State of Papua New Guinea v Francis Potape (2014) N5773

National Court: Salika, DCJ

Judgment Delivered: 16 October 2014

N5773

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 36 of 2012

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:

FRANCIS POTAPE

Waigani: Salika, DCJ

2014: 25 April, 4, 11, 13, 18, 19 August, 4 September, 16 October

PRACTICE & PROCEDURE - Criminal Law – Conspiracy to defraud – Members of the Joint District Planning and Budget Priority Committee – conspired to pay themselves allowances they were not entitled to – s.407(1)(b) of Criminal Code.

CRIMINAL LAW – Misappropriation – s.383A(1) of Criminal Code – Defence of honest claim of right under s.23 of the Criminal Code raised but not available.

Cases cited:

Papua New Guinea Cases

Kindi Lawi v The State (1987) PNGLR 183

Overseas Cases

R v Freely (1973) IQB 530

R v Landy (1981) IWLR 355

Counsel:

Mr P Tusais, for the State

Mr J Haiara, for the Accused

16th October, 2014

1. SALIKA DCJ: Background: The accused is the sitting Member of Parliament for the Komo Magarima Open Electorate in the Hela Province. He first won that seat in the 2007 National Elections and again in the 2012 National Elections. By virtue of being the elected member for the Electorate he is the Chairman of the Komo Magarima Joint District Planning and Budget Priority Committee (JDP & BPC) under s.33A of the Organic Law on Provincial and Local Level Government (OLPLLG)

2. Section 33A of the OLPLLG is pertinent and provides:

33A. Joint District Planning and Budget Priorities Committee.

(1) There shall be established, in each district, a Joint District Planning and Budget Priorities Committee.

(2) The Committee shall consist of—

(a) the Member of the Parliament representing the open electorate who shall be the Chairman of the Committee; and

(b) [Repealed]

(c) the heads of Local-level Governments in the district or their nominees; and

(d) any other members not exceeding three in number appointed by the Member of the Parliament representing the open electorate in consultation with the heads of the Local-level Governments in the district.

(2A) The Member of the Parliament representing the open electorate shall appoint one of the other members of the Committee to act as Chairman of the Committee in the event of the absence of the Member representing the open electorate from a meeting of the Committee.

(3) The Joint District Planning and Budget Priorities Committee shall have the following functions:—

(a) to oversee, co-ordinate and make recommendations as to the overall district planning, including budget priorities, for consideration by the Provincial Government and the National Government; and

(b) to determine and control the budget allocation priorities for the Local-level Governments in the district; and

(c) to approve the Local-level Government budgets for presentation to the Local-level Government and make recommendations concerning them; and

(d) to draw up a rolling five year development plan and annual estimates for the district; and

(e) to conduct annual reviews of the rolling five-year development plan.

(f) to approve disbursement of District Support Grants and other Grants.

(4) The District Administrator shall be the Chief Executive Officer of the Committee.

(5) [Repealed]

(6) [Repealed]

(7) An Act of the Parliament shall make provision for other functions and powers of, and the administrative arrangements for the Committee.

3. Section 35 of the OLPLLG is also relevant in this case. It says:

Remuneration and allowances.

The salaries, allowances and other terms and conditions of the members of Local-level Governments shall be as are determined by the Salaries and Remuneration Commission.

4. While s.33A (5) provides for an Act of Parliament to make provision of other functions and powers of and the administrative arrangements for the committee. Counsel did not refer the court to that Act or whether such an Act of Parliament has been made or passed for this purpose.

5. In the absence of the benefit I am no wiser and am stuck with what I have, that is the OLPLLG and the Salaries and Remuneration Commission Determination.

The Allegations

6. On Saturday 20 November 2010 the Komo Magarima JDP & BPC met in Tari and passed a resolution to pay themselves sitting allowances of K5,000.00 per day to the chairman and K2,500 per day to all the other members of the committee.

7. In total the committee resolved to pay K60,000 to the Chairman as outstanding sitting, transport and accommodation allowances.

8. The committee also resolved to pay K30,000 to the other members of the committee as sitting, transport and accommodation allowances. Apart from paying allowances to the members of the committee, resolutions were also made to pay K30,000 to the District Treasurer, the District Administrator, the Governor’s representative, and a Kevin Solomon whose status is not known. The State alleged that the resolutions of the committee did not take into account whether the members attended the meeting or not, because all the members received K30,000.00

9. The State also alleged that in any case the District Treasurer and the District Administrator were public servants and were not entitled to be paid any allowances.

10. The State further alleged that the JDP & BPC did not have the authority to set their own rates for various allowances to pay themselves.

The Charges

11. The State therefore charged the accused follows.

Count 1: Between the 1st and the 30th day of November, 2010 at Tari in Papua New Guinea, the accused conspired with Francis Ank, Tumbi Yari and others to defraud the Independent State of Papua New Guinea by fraudulently passing a resolution to pay inflated payment to themselves as JDP & BPC Sitting Allowance, thereby contravening s.407 (1) (b) of the Criminal Code (Chapter No 262).

Count 2: Between the 1st and the 30th day of November, 2010 at Mendi in Papua New Guinea, dishonestly applied to his own use the sum of sixty thousand Kina (K60,000), the property of the State of PNG, thereby contravening s.383A(1)(a) of the Criminal Code.

Count 3: Between the 1st and the 30th day of November, 2010 at Mendi in Papua New Guinea, the accused dishonestly applied to the use of Thomas Potabe, Eric Yawas, Hape Marale, Dennis Libe, Francis Keara, J Solomon, Francis Aule and Tumbi Yari, monies in the sum of two hundred and seventy thousand Kina (K270,000.00) the property of the State of Papua New Guinea, thereby contravening s.383A(1)(a) of the Criminal Code.

The Defence case

12. The defence made the following submissions:

“The Defence does not deny the receipt of the payment and the decision, being the JDP & BPC resolution dated 20th November, 2010 to make the payments. The Defence clarifies the payments by saying it is aware of the SRC determination relating to JDP & BPC "sitting" allowance of K50.00 per "sitting" for the Chairman/accused and K25.00 per "sitting" for the other members. However, it says the payment the JDP & BPC resolved to pay and the payment received was not a '"' sitting" allowance" per se. Rather the payments were for the members' JDP & BPC "meeting" allowances and associated costs, incurred for the two (2) year period such as for travel, vehicle hire, accommodation, fuel, food, security etc as reimbursement, which they had incurred and paid themselves. The SHPG does not and did not pay those expenses for JDP and BPC as erroneously assumed by the State Prosecutor.

Further, although a sum of K12 million was budgeted for the eight (8) JDP and BPCs in SHP where each JDP and BPC would have been entitled to K1.5 million each, the funds were not paid although it was budgeted. Similarly although, SHPG had budgeted K16 million in 2010, i.e. K2 million for each District, SHPG only paid K700, 000.00 to Komo-Magarima district in November, 2010. The State Prosecution team failed to understand the fundamental difference between "budget" and actual payment and erroneously contends Komo-Magarima JDP and BPCs meeting costs and expenses had been paid by SHPG when there is undisputed evidence to the contrary.

The funds [K330, 000.00] being part of the K700, 000.00 paid were appropriated by SHPG in its Provincial budget in 2010 for that purpose and they had used it accordingly. SHPG does not pay for the JDP & BPC members meeting costs and associated expenses separately by paying directly to the service providers, as incorrectly assumed by the Police Prosecutors and the State.” (underlining mine).

Undisputed Facts

13. The following are facts not disputed:

a) The JDP & BPC meeting resolved to pay K60,000 to the chairman and K30,000 to the other members and advisors on 20 November 2010.

b) Accused Francis Potape received Cheque # 914868 for K60,OOO.00, paid it into BSP A/C # 1000527304 and applied the money to his own use.

c) Thomas Potape received Cheque # 914869 for K30,OOO.00 paid into BSP A/C # 1000558271 and applied the money to his own use.

d) Eric Yawas received Cheque #...