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State v Kotange [2015] PGNC 94; N5913 (11 February 2015)

N5913

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 81 & 82 OF 2013

STATE

V

STANLEY KOTANGE

First Defendant

AND

JOHNSON MENJANAIK
Second Defendant

Tari: Ipang, J
2015: 10 & 11 February

CRIMINAL LAW - Criminal Code Act – Charges on Official Corruption (s.87 (1) (i), dishonestly applied to their own use (s.383 A (i) (a), official corruption (s.407 (1) (b) regarding the sum of K7 million RESI Funds

CRIMINAL LAW- Practice & Procedure –Criminal Code Act – s.552 Application – State presented indictment – calls no witnesses – Defence Counsel moves the application – Court strike out the case and discharge both accused persons

Cases Cited:

Lindsay Kivia, Robert N' Draku & Peter Seski v State [1988] PNGLR 107

Counsels:

D. Mark, for the State

S. Inisi, for the Accused

11th February, 2015

1. IPANG J: On the 11th February, 2015 State through counsel D.Mark presented an indictment charging both accused persons on four (4) counts. One count each on the charge of Official Corruption (s.87 (1) (i) of the Criminal Code Act), one count each on the charge of dishonestly applying to their own use and to the use of others, cash in the sum of K7 million (s.383 A (i) (a) of the Criminal Code Act ), and one count each of conspiracy to defraud state of the K7 million RESI Funds (s.407 (1) (b) of the Criminal Code Act)
   
2. The specifics of the four (4) counts are as follows:
   

Count one: Stanley Kotange of Adiria, Hela and Johnson Menjannaik of Mendi Southern Highlands Provinces and stand charged that they between 3rd of August 2009 and 3rd of March 20112 at Koroba/Lake Kopiago in Papua New Guinea being holder of Public office in the employ of Southern Highland Provincial Administration as District Manager and District Treasurer corruptly signed various cheques to value of K7 million in the in the discharge of duties of their respective offices.

Count two: Stanley Kotange of Andiria, Hela and Johnson Menjannaik of Mendi Southern Highlands Province and stand charged that between 3rd of March 2012 at Koroba/Lake Kopiago in Papua New Guinea dishonestly applied to their own use or to the use of others cash in the sum of K7 million being RESI funds appropriated for schools within Koroba Kopiago District, the property of Independent State of Papua New Guinea.

Count three: Stanley Kotango of Koroba, Hela Province stands charged that between 3rd of August 2009 and 3rd March 2012 at Koroba/Lake Kopiago in Papua New Guinea conspired with Johnson Menjannaik and others with intend to defraud, defrauded K7 million in RESI Funds appropriated for schools in Koroba/Kopiago the property of Independence state of Papua New Guinea.

Count four: Johnson Menjannaik of Mendi in Southern Highlands Province stands charged that between 3rd August 2009 and 3rd March 2012 at Koroba /Lake Kopiago in Papua New Guinea conspired with Stanley Kotange and others and with intent to defraud, defrauded K7 million in RESI funds appropriated for schools in Koroba/Lake Kopiago, the property of Independent State of Papua New Guinea.

Brief Facts

3. The brief facts as alleged by the State are; both accused persons conducted the District Treasury Operating Account with Bank South Pacific (BSP) Mendi Branch for the Koroba Lake Kopiago District. The Koroba Lake Kopiago District was part of the recipient of the funds from the National Government through Local Member of Parliament of RESI Funds in 2009. It was alleged the K7 million was allocated to Koroba Lake Kopiago District and deposited in to District Treasury Operating Account No. 1000931774 BSP Mendi Branch.
   
4. According to Technical advisor for RESI Funds for Southern Highlands Mr. Joseph Ngulu, the funds were transacted through RESI Project Management Unit of Department of Education at Waigani, the National Planning & Implementation Office at Waigani and through respective elected Members of Parliament from Southern Highlands Province. The applications for RESI Funds were submitted through RESI Technical Unit and Office of the local Member of Parliament. Applications were screened and approved for payment.
   
5. When approval was granted, the two (2) accused persons were supposed to raise payments for the suppliers and providers of services in respect of RESI Projects. However, the State alleged the Education Division in Southern Highlands Province was by-passed. There were allegations raised against the local MP and the two (2) accused persons after the RESI Projects were not completed. Local communities complained of services not being provided.
   
6. The both accused persons on been arraigned, pleaded not guilty to all four (4) counts. Defence Counsel Mr.S. Inisi informed the court that the pleas were consistent with the instruction given to him.
   
7. Mr. D. Mark of Counsel for the State after presenting the indictment did not call any of the State witnesses listed on the indictment. Mr. Mark indicated that none of the State witnesses are present.
   
8. Mr. S. Inisi of Counsel for the two (2) accused submitted that since July, 2014 his client had a s.552 Application on foot, then in October, 2015 the same application was still on foot. Counsel submitted that now is February, 2015 and still State is not ready to proceed.
   
9. In Lindsay Kivia, Robert N'Drakie and Peter Seski v State (1998) PNGLR 107 at p.112 Amet, J (as he then was) said:
   

"If the State cannot be in a position to proceed by having its witnesses to prosecute the case against the accused, then it cannot fairly be said that the accused was brought to trial. The State must genuinely show that it was ready with all its witnesses to prosecute its case against the accused, but for want of time... The mere presentation of an indictment by the State in answer to an application ... or in anticipation of an imminent s.522 (4) application without being ready to prosecute with witnesses available is not "bringing to trial" and would amount in my view to an abuse of process."

10. Mr. S. Inisi of Counsel for the both accused have demonstrated that since July, 2014 State had failed to bring the accused persons to trial up until February, 2015.
    
11. State must of course give priority to cases such as this which involved lots of money and involved allegations of fraud and corruption since such offence is prevalent in the country. I agree with Mr. Inisi that there is a s.552 Application on foot and the circumstances have shown that State has not made any attempt to prosecute the case thus causing delay since July, 2014. Even after presenting the indictment today, still State is not ready to proceed with the trial.
    
12. I grant the application by the Defence Counsel pursuant to s.552 (4). Both cases are struckout and both defendants are discharged. Bails for each of them are refunded.

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Public Prosecutors: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner