The State v Iori Veraga (2005) N2849

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 02 June 2005
• Citation: (2005) N2849
• Docket Number: CR 389 of 2004
• Court: National Court
• Year: 2005
• Judgement Number: N2849

Full Title: CR 389 of 2004; The State v Iori Veraga (2005) N2849

National Court: Sakora J

Judgment Delivered: 2 June 2005

Lawyer for Petitioner : Powes Parkop Lawyers

Counsel : P. Parkop

Lawyer for First Respondent : Korowi Lawyers

Counsel : P. Korowi

Lawyer for Second Respondent : Nonggorr & Associates

Counsel : R. William

N2849

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 389 of 2004

THE STATE

v

IORI VERAGA

WAIGANI : SAKORA J

2005 : 14, 15, 16, 17, 21, 22 & 24 March

1, 5, 6, 28 April & 2 June

CRIMINAL LAW – Conspiracy – Agreement to do an unlawful act – Conspiracy to defraud. Offence completed when agreement made – Proof of – Agreement expressed or implied – Community of purpose – Acts and omissions of parties – Engagement of valuer outside tendering procedures, without Board approval – Excessively and unreasonably high valuations – Exorbitant and excessive fees accepted before valuation reports – Fees accepted and paid without Board knowledge and approval – Sharing of these fees – Misappropriation.

TEXTS CITED:

Osborn’s Concise Law Dictionary (6th ed.).

Oxford Dictionary of Law (new ed., 1997).

Halsbury’s Laws of England (4th ed.) Vol. 11(1), 1990.

Carter’s Criminal Law of Queensland (10th ed.), by Jerrad Butler & Shanahan (1997).

Carter RF: Criminal Law of Queensland (3rd ed.) 1969.

Australian Criminal Justice, by Findlay, Odgers & Yeo (1994).

CASES CITED:

The State v Tanedo [1975] PNGLR 395.

The State v Sebulon Wat and Miskus Maraleu [1995] PNGLR 582.

Brian Kindi Lawi v The State [1987] PNGLR 183.

The State v Gabriel Ramoi [1993] PNGLR 390.

The State v James Makario (1990), unreported N862.

R v Jones (1832) 110 ER 485.

Aspinall (1876) 2QBD 48.

R v Meyrick and Ribuffi [1929] Cr App Rep 94.

R v Churchill (No 2) [1967] 1QB 190.

Churchill v Walton [1967] 2 AC 224.

Doot [1973] AC 807.

Scott v Metropolitan Police Commissioner [1975] AC 819.

Kalajzich and Orrock [1989] A Crim Rep 415

Siracusa [1990] 90 Cr App Rep 340.

R v Gudgeon (1995) 133 ALR 379.

A. Kupmain for the State.

L. Henao for the Accused.

02 June 2005

Sakora J:

Introduction

The accused Iori Veraga is a married father of six children, and hails from Gomore village, Rigo in the Central Province. He is a valuer by profession, currently duly registered, having graduated from the University of Technology, Lae, in 1973 with a diploma in valuation. After four years in the public service with the Office of the Valuer-General, the accused entered private practice in the employ of several real estate agents in Port Moresby before setting up his own company, Veraga Valuation Centre Ltd (VVC) some 21 years ago.

Indictment

On 11 March 2005 the State presented an indictment charging the accused with two counts of conspiracy and four counts of misappropriation. Upon arraignment he pleaded “Not Guilty” to all counts. At the conclusion of State evidence I entertained a “No Case” submission which I ruled against, thereby ordering that he had a case to answer in respect of all six counts.

For a proper appreciation of the discussions on the evidence and the pertinent principles of law leading to the Court’s verdict, it is convenient and instructive that the six counts of the indictment be reproduced in full, and I do so hereunder as follows:

Count 1: IORI VERAGA of Gomore Village, Rigo, Central Province stands charged that he between the 01st day of September 1998 and the 31st day of December 1998 at Port Moresby in Papua New Guinea, conspired with one JIMMY MALADINA, and one HENRY FABILA and one HERMAN JAMES LEAHY to defraud the National Provident Fund (NPF) of Papua New Guinea, by fraudulently charging a sum of Sixty-Thousand and Three Hundred Kina (K60,300.00) which was in excess of the normal appropriate valuation fee for that property described as Allotment 2, Section 429 (Hohola) Port Moresby, the Waigani Land.

Count 2: AND ALSO THAT the said IORI VERAGA, stands charged that he between the 01st day of September 1998 and the 28th day of February 1999, at Port Moresby in Papua New Guinea, conspired with one JIMMY MALADINA, and one HENRY FABILA and one HERMAN JAMES LEAHY to defraud the said National Provident Fund (NPF) of Papua New Guinea, by fraudulently charging a sum of One Hundred and Seventy-Five Thousand Kina (K175,000.00) which was in excess of the normal appropriate valuation fee for that property described at Allotment 16, Section 5 (Granville), the National Provident Fund (NPF) Tower.

Count 3: AND ALSO THAT the said IORI VERAGA, stands charged that he between the 01st day of September 1998 and the 31st day of December 1998 at Port Moresby in Papua New Guinea, dishonestly applied to his own use the sum of Twenty-Thousand, Three Hundred Kina (K20,300.00) the property of the National Provident Fund (NPF) of Papua New Guinea.

Count 4: AND ALSO THAT the said IORI VERAGA, stands charged that he between the 01st day of September 1998 and the 31st day of December 1998 at Port Moresby in Papua New Guinea, dishonestly applied to the use of one JIMMY MALADINA, monies in the sum of Thirty-Thousand Kina (K30,000.00) the property of the National Provident Fund (NPF) of Papua New Guinea.

Count 5: AND ALSO THAT the said IORI VERAGA, stands charged that he between the 01st day of September 1998 and the 28th day of February 1999 at Port Moresby in Papua New Guinea, dishonestly applied to his own use monies in the sum of Seven Thousand One Hundred and Fifty-Five Kina (K7,155.00) the property of the National Provident Fund (NPF) of Papua New Guinea.

Count 6: AND ALSO THAT the said IORI VERAGA, stands charged that he between the 01st day of September 1998 and the 28th day of February 1999 at Port Moresby in Papua New Guinea, dishonestly applied to the use of one JIMMY MALADINA monies in the sum of Eighty-Seven Thousand Five Hundred Kina (K87,500.00) the property of the National Provident Fund (NPF) of Papua New Guinea.

Facts relied on by the State

The basic facts the State relied on to bring these charges against the accused can be stated briefly as follows. Between 1st September 1998 and 31 December 1998, the accused had contacts with Jimmy Maladina, Henry Fabila and Herman Leahy, as a result of which the accused and his company (VVC) were engaged by Messrs Fabila and Leahy to undertake valuation of the “Waigani Land”, property described as Allotment 2 Section 492, Hohola, Port Moresby.

At the time Mr Jimmy Maladina was the managing partner of the law firm of Carter Newell Lawyers, and Messrs Fabila (now deceased) and Leahy were the managing director and corporate secretary respectively of the National Provident Fund (NPF, though the successor entity is now NASFUND, the acronym for National Superannuation Fund). And the accused, of course, the principal of his company (supra).

The accused then purportedly conducted valuation of the subject property and charged the NPF his professional fees of K60,300.00 which were paid. It is the State’s case that the fees of K60,300.00 to value the property was quite excessive, and that, in any case, the engagement of the accused and his company to undertake the valuation did not comply with the necessary tender procedures.

It is the State’s case also that upon receipt of payment of his professional fees rendered to the NPF, the accused caused his company’s cheque to be drawn in the sum of K30,000.00 made payable “Cash”, which cheque was then handed to Mr Jimmy Maladina as his 50% share of the professional fees charged as agreed between the two of them.

The State further alleged that between 1st September 1998 and 28 February 1999, the accused was once again engaged by Messrs Jimmy Maladina, Henry Fabila and Herman Leahy to undertake another valuation job in respect of the property then known as the “NPF Tower”, described as Allotment 16 Section 5 Granville. Once again it is the State’s case that the engagement of the accused and his company for such valuation job did not comply with the normal standard tender procedures.

After valuation of this second property the accused submitted his professional fees to the NPF totalling K250,000.00. Mr Henry Fabila disputed this amount, offering to pay only K175,000.00, which offer was readily accepted by the accused. A cheque for this amount drawn on the NPF account made payable in the company’s name was then paid to the accused.

The accused then, once again, had a cheque drawn on his company’s account for the sum of K87,500.00 which is half of the total professional fees paid by NPF for the “NPF Tower” evaluation. The company’s cheque was made payable to Carter Newell Lawyers. It is the State’s case that this K87,500.00 went to Mr Jimmy Maladina as his half share of the professional fees charged to and paid by the NPF as agreed to between them.

Thus, the State’s case alleges that the accused and Messrs Jimmy Maladina, the late Henry Fabila and Herman Leahy had conspired to conduct business in a dishonest manner from which the accused obtained monies from the NPF that he used for himself and for the use of Jimmy Maladina.

The Properties in Question

“The Waigani Land” is described in State Lease Volume 10 Folio 234 as Allotment 2 Section 429 (Waigani) Hohola, National Capital District.

At the relevant time it was a 9.8 hectares piece of prime undeveloped land located at the northern corner of the main Waigani and Sir John...