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• N6815

  PAPUA NEW GUINEA
  [IN THE NATIONAL COURT OF JUSTICE]

  CR (FC) 221 OF 2016
  CR (FC) 222 OF 2016
  CR (FC) 223 OF 2016

  BETWEEN:
  THE STATE

  AND:
  MIRIAM HEVELAWA, JACOB HEVELAWA AND TIMOTHY NUMARA
  (NO. 1)

  Waigani: Salika, DCJ
  2017: January 24;
  February 6, 13, 15;
  March 24, 22;
  April 12;
  May 30; July 7

  CRIMINAL LAW – Practice and Procedure – Charges of abuse of office – S92
  of Criminal Code – Charge of Conspiracy to Defraud – S515 of Criminal Code –
  Charges of misappropriation – S383A(1)(a) of the Criminal Code

  CRIMINAL LAW – What is abuse of authority of office – what is conflict of
  interest – what is vested interest – what constitutes an arbitrary act or action –
  what is conspiracy to defraud

  Cases cited

  The State v Graham Yotchi Wyborn (2004) N2847
  State v Iori Veraga (2005) N2921

• Page 2 of 22

• State v Gabriel Ramoi (1993) PNGLR 390

  Counsel

  Ms H Roalakona, for the State
  Mr F Kirriwom & Mr E Sasingian, for the Defence

  DECISION

  7th July, 2017

  1. SALIKA DCJ: INTRODUCTION: Jacob Hevelawa and Timothy
  Numara are charged with one count of Abuse of Office under s.92 (1) of the
  Criminal Code, one count of Conspiracy under s.407 of the Criminal Code. They
  are jointly charged with Miriam Hevelawa on one count of misappropriation
  pursuant to s.383 A (1) of the Criminal Code.

  Facts
  2. Jacob Hevelawa was the Director – General of the Office of Library and
  Archives (OLA) from March 2011 to March 2014. Timothy Numara was the
  Manager; Corporate Services for the same Office at the material time and Miriam
  Hevelawa was and is the wife of Jacob Hevelawa.

  3. Miriam Hevelawa is the owner and sole Director of a company Paja Sisters
  Trading registered on 6 December 2011 as a company.

  4. Between 1 December 2012 and 31 December 2013, the state alleged that the
  3 accused conspired to defraud the State by submitting inflated invoices for grass
  cutting, landscaping and removal of rubbish services through Paja Sisters Trading,
  the 3 accused signed a contract for Paja Sisters Trading to provide those services
  with no agreed value of the Contract and no completion date. The 3 accused agreed
  that the payments were to be made based on Paja Sisters Trading invoices rendered
  to OLA.
  5. Invoices 0005, 0006 and 0008 all dated 21 June 2013 were submitted by

• Page 3 of 22

• Miriam Hevelawa to Timothy Numara for K103,250.00, K 91, 000 and K 86, 650
  for processing and payment all being for grass cutting, landscaping and removal of
  rubbish. The invoices did not specify dates the alleged work was done.

  6. After the invoices had been submitted for processing, finance forms 3 and 4
  were filled and processed for payment by the OLA officers to Paja Sisters Trading.
  Jacob Hevelawa signed off all Finance forms as the Section 32 of the Public
  Finance Management Act officer approving the claims for payment.

  7. On 31 December 2013 three cheques were processed in favor of Paja Sisters
  Trading for K 63, 120. 50, K 20,000 and K 35, 725.80. All these cheque payments
  were deposited into the Paja Sisters Trading bank account in 2014 and the monies
  were allegedly used by the accused for their own use and for the use of others.

  8. The State alleged the 3 accused conspired when they agreed to a cleaning
  contract with Paja Sisters without a value and the Paja Sisters to invoice the Office
  of Library and Archives which the Office would pay. The State alleged that Jacob
  Hevelawa and Timothy Numara had abused their respective Offices by firstly
  entering into the Contract with Paja Sisters, and secondly by approving and
  processing the inflated payments despite the possible conflict of interest situation.
  The State alleged that the actions of the 3 accused was dishonest and therefore had
  them charged accordingly. The State invoked Section 7 of the Criminal Code.

  ISSUES
  9. The issues raised in this case are:

  a. Whether Jacob Hevelawa and Timothy Numara abused the authority
  of their respective offices?
  b. Whether there was a conflict of interest on the part of Jacob Hevelawa
  in entering into the cleaning contract with Paja Sisters?
  c. Whether the accused dishonestly applied the monies for their own use
  and to the use of others?

• Page 4 of 22

• d. Whether Jacob Hevelawa and Timothy Numara conspired with each
  other to defraud the State?

  EVIDENCE
  10. The State tendered into the evidence the following documents:-
  Date Description Pagination Exhibit No
  1 Statement of Magea Kila dated
  20 February 2017 A
  2 19/01/16 Record of Interview (Miriam 21 – 26 B
  Hevelawa) (6 pages)
  3 19/01/16 Record of Interview (Jacob 22 – 27 C
  Hevelawa) (6 pages)
  4 26 & 27/01/16 Record of Interview (Timothy 22 – 29 D
  Numara) (8 pages)
  5 04/06/16 Finance Forms 4 – General E
  Expenses for K7280.00
  6 03/06/15 Finance Form 3 – Requisition for F
  Purchase of Goods/ Services N0
  3339 for K7280.00
  7 31/12/13 Department of Education G
  remittance advice for cheque No
  365609 to PAJA Sisters Trading
  for K63,120.50 (Serial No.
  446287)
  8 08/07/13 Finance Forms 4 – General H
  Expense for K91,000.00
  9 08/07/13 Finance Form 3 – Requisition for I
  Purchase of Goods/ Services N0
  3339 for K7280.00
  10 21/06/13 Invoice No 006 from Paja Sisters J
  Trading GST No 23813 for
  services rendered totaling up to
  K91,000.00
  11 21/06/13 Quotation No 006 from Paja K
  Sisters Trading GST No 23713
  for services rendered totaling up
  to K91,000.00

• Page 5 of 22

• 12 06/06/13 Letter from IRC re GST L
  Registration advise by
  Commissioner General to Paja
  Sisters Trading & Miriam
  Hevelawa.
  13 07/06/13 Letter from IRC re exemption M
  from certificate of compliance by
  Commissioner General to Paja
  Sisters Trading & Miriam
  Hevelawa.
  14 02/01/13 Contract between Paja Sisters N
  Trading and Office of Libraries
  and Archives.
  15 06/12/12 Certificate of Registration of O
  Business Name Paja Sisters
  Trading by Registrar of
  Companies.
  16 04/06/15 Finance Forms 3 – Requisition P
  for Purchase of Goods / services
  No 3270 for K8,046.00 and
  carbon copy.
  17 31/12/13 Dept of Education remittance Q
  advise for cheque No 365460 to
  Paja Sisters trading for
  K35,725.80 Serial No 446138.
  18 06/11/14 Finance Form 4 – General R
  Expense for K86,650.00.
  19 06/11/14 Finance Form 4 – General S
  Expense for K8,046.00
  20 06/11/14 Finance Form 3 – Requisition for T
  Purchase of Goods/Services No
  3522 for K86,650.00 and carbon
  copy.
  21 21/06/13 Invoice No 006 from Paja Sisters U
  Trading GST No 23713 for
  services rendered totaling up to
  K86,650.00
  22 04/06/15 Finance Form 4 – General V
  Expense for K8,325.00
  23 04/06/15 Finance Form 3 – Requisition for W
  Purchase of Goods/Services No
  3338 for K8,325.00 and carbon
  copy.

• Page 6 of 22

• 24 31/12/13 Dept of Education remittance X
  advise for cheque No 35423 to
  Paja Sisters trading for
  K20,000.00 Serial No 446151
  25 06/11/14 Finance Form 4 – General Y
  Expense for K103,250.00
  26 06/11/14 Finance Form 3 – Requisition for Z
  Purchase of Goods/Services No
  3520 for K103,250.00 and
  carbon copy.

  27 21/06/13 Invoice No 005 from Paja Sisters AA
  Trading GST No 23713 for
  services rendered totaling up to
  K103,250.00
  28 21/06/13 Quotation No 005 from Paja AB
  Sisters trading GST No 23714
  for services rendered totaling up
  to K103,250.00
  29 28/01/15 Audit report Assessment Joint AC
  Investigation Report
  30 2014 Correspondences with Dept of AD
  Education and Dept of Finance.
  31 Westpac Company and AE
  Organization Account Opening
  Form for Account No
  6003230222 for Paja Sisters
  Trading (2 pages)
  32 3 May 2013 Westpac Bank Statement for Paja AF
  and 3 June Sisters trading between 3 May
  2013 2015 and 3 June 2013 (59 pages)
  33 31 December Copy of cheque No 356 609 AG
  2013 dated 31 December 2013 for the
  sum of K63,120.50 and copy of
  cheque No 365 473 dated 31
  December 2015 for the sum of
  K20,000.00 (1 page).
  34 31 December Copy of Cheque No 365 460 AH
  2013 dated 31 December 2013 for sum
  of K35,724.80 (1 page).

• Page 7 of 22

• 35 13 Jul 2013 – Westpac Bank Statements for AI
  13 Jan 2016 account No 604645601 for Jacob
  Hevelawa.
  36 311 December BSP Bank Statements of account AJ
  2013 to No 1000504091 for Timothy
  30October 2015 Numara from 31 December 2013
  to 30 October 2015.
  37 14 March 2017 Statement of Oda Hitolo (2 AK
  pages)
  38 Statement of Simon Aisi dated 8 AL
  December 2015.
  39 State of Yali Yanubagi dated 4 AM
  January 2016.
  40 NEC decision 54/2015 Meeting AN
  No 3/2015.
  41 Receipt of Petrol dated 27 March AO
  2017 for the sum of K205.40.

  A MATTER OF CONCERN

  11. In a few cases that I have been involved in, I have experienced State
  Prosecutors tendering witnesses statements taken at the committal court as part of
  the depositions even after the witness has given oral evidence. This practice
  appears to take a strong hold in our practice nowadays. The Evidence Act only
  allows for witnesses to be cross examined on their statements if it is intended to
  contradict him or her. The statements or depositions in my respectful opinion
  should never be tendered into evidence to add extra to what the witness has already
  said in his oral testimony. For instance, in this case Magea Kila’s statement at the
  committal depositions was tendered into evidence by consent even though he gave
  oral evidence. I did not raise this matter at the time but after much thought raise it
  now. I do not and will not rely on that statement in giving this decision.

  Oral Evidence
  Magea Kila
  12. The relevance of Mr Kila’s evidence is that the procurement section of the
  Department of Education would check the claims and companies would be

• Page 8 of 22

• checked before the Department engaged them to provide services. He gave
  evidence of inflated amounts for the goods and services provided by the company
  Paja Sisters Trading.

  13. He was asked if the payments were in order and he said the payments were
  in order in that there was a cleaning contract in place and work was done and
  invoices were rendered according to the contract agreement. He agreed cleaning
  both inside the building and outside the buildings was an administrative duty and if
  outside assistance was required, approval from the Secretary of the Education
  Department must be sought and if the Secretary approved, three quotes would be
  required and one of the three would be asked to provide the cleaning services. In
  this case there is no approval sought from nor was approval granted by the
  Education Secretary but even if it was not required, the Director General or the
  Corporate Services Manager of OLA did not obtain three quotes from cleaning and
  landscaping service providers for the OLA cleaning jobs.
  Maria Kanambo
  14. Mrs Kanambo is the Administrative Officer with the OLA and has been so
  for 26 years. Her evidence is that she registered the claims and gave them to
  Simon Aisi who then told her to fill in the Finance Forms 3 and 4 which she did.
  Simon Aisi checked the forms and submitted them to Manager, Corporate Services
  who certified the claims and the claims were given to section 32 officer. A s.32
  officer is one who is identified under the Public Finance Management Act by s.32
  of that Act. After this process Mrs Kanambo copied the FF3s and FF4s and passed
  the originals to the Department of Education located at Fincorp building. She was
  shown the relevant FF4s – the General Expenditure claim for K103,250.00 dated 6
  November 2013 and confirmed she filled in that form and that Sibona checked the
  forms and certified them and Jacob Hevelawa signed as the s.32 officer. She said
  Invoice 0005 was authorized by Miriam Hevelawa and sent to the attention of
  Timothy Numara dated 21 June 2013. She was asked to read the notations on the
  FF4 and that notation read:- Cheque #365473 – 31/12/13 (b) K20,000 (c) part
  payment and (d) O/S – K83,250. Her evidence is that the directions were given by
  Jacob Hevelawa to make a 10 percent part payment for the claim.

  15. She was asked if work was actually done and she said she saw work was
  done on Saturdays and about 10 to 12 people provided the grass cutting and
  cleaning service. She was asked if prior claims had been paid and she said some
  were paid.

• Page 9 of 22

• Sibona Asigau
  16. Mr Asigau is the Administrative Clerk with OLA and has been so for 7
  years. Part of his duty is to raise the Claims (FF3 and FF4). He said the Paja
  Sisters claim was filled out on the direction of Simon Aisi. He was shown the
  claim and said he raised the claim for K91,000. He said both Simon Aisi and
  Jacob Hevelawa signed in their respective columns.

  17. His evidence was that the claims and the payments made were excessive
  because the work did not warrant such excessive payments. He suggested that
  payments between K15,000 and K20,000 would have been alright. He said queries
  were raised but Jacob Hevelawa the then Director General gave instructions to pay.
  He said they could do nothing because he was the boss. He said work was done
  but what was paid was excessive.
  Simon Aisi

  18. Mr Aisi is the Senior Administrative Officer and has been so for 15 years.
  His statement was tendered into evidence. The witness was asked if he was aware
  of a cleaning contract between Jacob Hevelawa, Timothy Numara and Miriam
  Hevelawa and he said he was aware of the contract. He was asked if he ever heard
  of the words “conflict of interest” to which he said No.

  Francis Kamuti

  19. Mr Kamuti has been a cleaner with the National Library for 41 years. His
  evidence was that it cost them, that is the cleaners, K100 fuel to use the lawn
  mower to cut the grass and 1 to 2 days to do that. He also said 7 of them cut the
  grass and clean the area.
  Yali Yambagi
  20. His statement was tendered into evidence and is similar to that of Francis
  Kamuti.

• Page 10 of 22

• Kakaito Kasi
  21. Mr Kasi is the current Director General of OLA. He took over from Mr
  Jacob Hevelawa. When he took office he set out first to establish a board, which
  was a statutory requirement under The National Library Act of 1993. He said
  under Mr Hevelawa, there was no board and he had operated without a board for
  11 years, that he was Director-General.

  22. He said Paja sisters Trading had submitted its claims and that in total K1.3
  million was still outstanding and yet to be paid and that K118,000 had been paid.

  23. Relevantly, this witness produced and tendered into evidence receipts for
  grass cutting, how much it costs to cut grass and to clear the yard per month. From
  the receipts he is able to say that it costs K205 per month to cut the grass. He said
  he had purchased a grass cutter for the office. He said the OLA had an annual
  budget of K4 million effectively saying he could not afford to spend K1.3 million
  just to cut grass and landscape the area.

  24. The defence cross examined him and suggested to him that if anything, the
  accused had conspired to do good for the OLA to which the witness said “no” and
  it was put to him that what the accused did was good for the office but Mr Kasi
  said “at a minimum cost he would agree.”

  25. The witness was asked if he was the complainant in the case and said he was
  not but said the matter of misuse of monies and abuse of office was raised on the
  floor of parliament and then an inquiry ensued. He said that is how the accused got
  to be charged.

  Bill Mugi
  26. The witness is a Police Officer who did the investigation and laid charges
  against the 3 accused. It was suggested to him that there was no cause for
  complaint but he said he was directed to investigate the matter by his supervisors
  and he did and that is how the matter is now before the court.

• Page 11 of 22

• Defence Case
  27. The defence called the 3 accused to give evidence on their own behalf after
  their no case submission was dismissed.
  Timothy Numara
  28. Mr Numara was the Manager, Corporate Services in the OLA. He drafted
  the cleaning contract with Paja Sisters and said this was a business transaction
  where services were provided under the contract and payment was done in
  accordance with the contract. He said the cleaning contract was a standard
  contract. He denied the amounts claimed by Paja Sisters was excessive but the
  work was done and Paja Sisters got paid for the work they did as stipulated in the
  contract. He was asked if there might be a conflict of interest situation to enter
  into a contract with Paja Sisters and he said it was a matter for Mr Jacob Hevelawa.
  Jacob Hevelawa
  29. Jacob Hevelawa was the Director General of the OLA at the material time
  for 9 years. He is married to Miriam Hevelawa. He said the Manager Corporate
  Services was responsible to ensure the buildings were maintained and the grounds
  are also kept neat and tidy but that the Director General had the overall
  responsibility. He confirmed that he, Timothy Numara and Miriam Hevelawa had
  signed the cleaning contract agreement. He said the agreement spelt out the scope
  of works or the type of service Paja Sisters were to provide and not a legal
  document. He said he had signed similar contracts with other service providers.

  30. Mr Hevelawa agreed that the contract was an open contract.
  Miriam Hevelawa
  31. Mrs Miriam Hevelawa is the wife of Jacob Hevelawa. She said she
  registered her company Paja Sisters Trading to assist woman in her community.
  She said she signed the contract with Mr Hevelawa and Mr Numara to help the
  mothers at 8 Mile community. She said the mothers with their families came and
  cut the grass and collected rubbish and landscaped the OLA area. She took photos
  of the families working and had those photographs tendered into evidence.

  32. She invoiced OLA for the work Paja Sisters did. In her invoice she claimed
  K600 for each of the workers for working two days at K300 per day. She charged
  for lawn mower hires and also for lunches for the members. She gave evidence of

• Page 12 of 22

• how she had this dream to own and run a business of her own and that this dream
  was now a reality. It was suggested to her that she only got the OLA job because
  her husband was the Director General of OLA and therefore it was easy for her to
  get that job. She said she went to the National Capital District Commission for a
  cleaning job but they told her to wait. She also asked elsewhere but could not
  secure a cleaning job. She avoided answering the question but it is obvious she got
  the OLA job because of her husband. She could not get another cleaning job
  elsewhere.

  33. Defence counsel tendered a register book of attendees of members of Paja
  Sisters which may have been relevant had some of those listed in the register book
  come and given evidence to say that they worked and were paid K600. Not one
  from the list was called to confirm Mrs Hevelawa’s assertions that it was a
  women’s group and that they all benefitted from the cleaning contract. Surely, it
  would not have been hard to gather the mothers with their families to come
  forward to support Mrs Hevelawa’s story that they worked and got paid by Mrs
  Hevelawa. Are they not all living in and around the 8 mile area?

  Abuse of Authority of Office
  Elements of Offences

  34. The first count alleged is abuse of authority of office. The elements of the
  offence of abuse of authority of office are:-

  a) A person
  b) On a date
  c) At a place
  d) Employed in the public service
  e) In abuse of authority of his office

• Page 13 of 22

• f) Does or directs to be done
  g) Any arbitrary act
  h) Pre-judicial to the rights of another.

  35. Elements a, b c and d are not contested, Jacob Hevelawa and Timothy
  Numara were both public servants. There is no argument about that. There is no
  dispute about the dates and the place alleged.

  36. Abuse as a noun means :- “1. Use of something that is wrong or harmful or
  misuse. 2. Unfair, cruel or violent treatment. 3. Rude or offensive remark.
  Abuse as a verb means :-1. To make bad use of something or to use too much of
  something that it harms your health. 2. To use power or knowledge unfairly or
  wrongly for instance she abused her position as principal by giving jobs to her
  friends or he felt they had abused his trust by talking about him to the press. 3.
  To treat a person or animal in a cruel or violent way for instance he had abused
  his daughter. 4. To make rude or offensive remarks about somebody.” Oxford
  Advanced Learners Dictionary new 8th Edition.

  “Authority” as a noun means:- “1. The power to give orders in a position of
  authority. 2. The power or right to do something. Oxford Advanced Learners
  Dictionary new 8th Edition.

  “Conflict of Interest” means :- “a situation in which somebody has two jobs, roles
  etc and cannot treat both of them equally and fairly at the same time.” Oxford
  Advanced Learners Dictionary new 8th Edition.

  Wikipedia describes “conflict of interest” as:- “is a situation in which an
  individual has competing interest or loyalties. A conflict of interest can exist in
  many different situations. The easiest way to explain conflict of interest is by
  using some examples.
  • With a public official whose personal interests conflict with his/her

• Page 14 of 22

• professional position.
  • With a person who has a position of authority in one organization
  that conflicts with his or her interests in another organization.
  • With a person who has conflicting responsibilities.”

  37. In this case Mr Jacob Hevelawa, was a public official whose personal
  interest conflicted with his professional position in that his wife and her company
  were related to him. He could not be seen in his professional position to be
  awarding cleaning contracts to his wife and her company. He had a vested interest
  in the awarding of the contract to his wife’s company. He signed as a Section 32
  officer with vested interest written all over him. The Oxford Advanced Learners
  Dictionary New 8th Edition defines vested interest as – “a personal reason for
  wanting something to happen, especially because you get some advantage from it”.
  The Cambridge English Dictionary defines vested interest as – “a strong personal
  interest in something because you could get an advantage from it”. In my
  respectful opinion Mr Hevelawa had a vested interest in all that Mrs Hevelawa was
  doing. For Mr Numara, again with respect he simply went along with what Mr
  Hevelawa said or directed. It was and is unethical and wrong for Jacob Hevelawa
  and Timothy Numara to award that cleaning contract to Mrs Hevelawa and her
  company. Timothy Numara said it was for Jacob Hevelawa to make a decision but
  he should have advised Mr Hevelawa not to enter into such contract with his wife.
  It amounts to abuse of office.

  THE CONTRACT
  38. The cleaning contract between Mr Hevelawa, Mr Numara and Mrs
  Hevelawa is in evidence. They all signed the contract. Apart from the contract
  being open with no commencement and completion dates, it is the relationship of
  the parties who signed the contract that in my respectful opinion that must raise the
  eyebrows of any thinking person. Evidence is that Paja Sisters Trading is Mrs
  Hevelawa. She is the sole director and shareholder of Paja Sisters. She is the wife
  of Jacob Hevelawa. To enter into a cleaning contract with his wife, which brought
  monetary benefits to his wife and therefore him as well is unethical and amounts to
  abuse of office and abuse of authority of office. To me with respect it was and is
  clearly wrong. To suggest that what they did was good for the OLA is contrary to
  good conscience of a thinking person and contrary to good governance.

• Page 15 of 22

• 39. With respect Mrs Hevelawa is the sole head, the hands, the eyes, the feet, the
  nose and the mouth of Paja Sisters. See The State v Graham Yotchi Wyborn (2004)
  N2847. She is married to Jacob Hevelawa who was the then Director General of
  OLA. Her benefit is Mr Hevelawa’s benefit.

  40. Moreover, Genesis 2:24 says: “Therefore shall a man leave his father and
  his mother and cleave unto his wife; and they shall be one flesh”. That is the
  Bible definition of a marriage. Jacob Hevelawa and Miriam Hevelawa are one.
  Whatever Miriam Hevelawa did and whatever Jacob Hevelawa did for the
  commission benefit both of them.

  41. The net effect of this is that Jacob Hevelawa signed the cleaning contract
  not only for the benefit of the Paja Sisters and Mrs Hevelawa but also for the
  benefit of himself. Both Mr Hevelawa and Mr Numara are highly educated
  officers. To not pay any attention to this basic and simple matter of a conflict of
  interest and therefore vested interest and therefore vested interest arising here is
  simply with respect in my opinion either arrogance at its highest or dumb at its
  highest.

  42. Abuse is defined as: “to use something to the bad effect or for a bad
  purpose or a corrupt practice or custom.” In this case the State alleged that Mr
  Hevelawa and Mr Numara both abused the authority of their offices to enter into a
  contract with Mrs Hevelawa for the benefit of Mrs Hevelawa and Mr Hevelawa
  which was wrong and unethical.

  43. The defence could only submit that the action to engage a business to
  provide cleaning services was a function within the duties and responsibilities of
  both Mr Hevelawa and Mr Numara. I accept with respect that both man had the
  authority, power and responsibility to ensure the grounds of OLA were kept tidy
  and clean. What I do not accept is that the cleaning job was contracted to Mr
  Hevelawa’s wife. Surely there were other cleaning contractors who might have
  been engaged to do the work. There is no evidence that Mr Hevelawa and Mr

• Page 16 of 22

• Numara sought 3 quotations from other such service groups to be engaged. They
  did not do that. They simply got Paja Sisters, a company which Mr Hevelawa had
  an interest in and engaged it to do the cleaning job without a starting date and a
  finishing date. When one acts in that manner, does that action not fall into the
  category of an arbitrary action? I am of the opinion that it does. To enter into a
  cleaning contract without obtaining 3 quotations from 3 service providers for
  cutting grass and landscaping but selecting only one company owned by Mr
  Hevelawa’s wife is in my respectful opinion an arbitrary act.

  44. Counsel for the defence also submitted that other cleaning service providers
  had rendered cleaning services to the OLA, such as Mogose sisters. He submitted
  that Paja Sisters was formed after Mogose sisters broke up after an argument
  between the head and the treasurer. There is no evidence that Mogose Sisters was
  a registered business group. Paja Sisters was a registered business group and its
  sole owner and director was Mrs Miriam Hevelawa. There is no evidence who the
  head of Mogose Sisters was. The effect of all these is that the engagement of
  Mogose Sisters is of no relevance to the engagement of Paja Sisters.

  45. The defence further submitted that the decision to engage Paja Sisters was
  based on the facts and circumstances surrounding Mogose Sisters break up. It was
  submitted that the same women involved with Mogose Sisters earlier were the
  same women under Paja Sisters who approached Mr Timothy Numara who earlier
  engaged Mogose Sisters for the cleaning engagement.

  46. What the defence failed to do with respect, is call those same woman
  involved in or with Mogose Sisters to support their contention. Those same
  women would have given evidence of who benefitted from those cleaning
  contracts and assisted their clients. All that the court has is that the cheques were
  written out in the name of Paja Sisters who is Mrs Hevelawa. Mrs Hevelawa’s
  sorry is not corroborated by any of these same women involved with Mogose
  Sisters. The failure to obtain 3 quotes from cleaning service providers was an
  unfair omission.

  47. This is because to not get other quotes from other service providers was not
  fair. In other words the decision to only engage Paja Sisters was an arbitrary
  decision and not a decision based on good conscience, practice, reason and good

• Page 17 of 22

• governance.

  48. The State submitted that by entering into the contract with Paja Sisters, Mr
  Hevelawa and Mr Numara abused their respective authorities in their respective
  positions. By using their authority by arbitrarily awarding the cleaning contract to
  Paja Sisters in effect Mrs Hevelawa, amounts to abuse of office in my respectful
  opinion.

  FINANCE FORMS 3 AND 4
  49. Mr Hevelawa signed the FF3 and FF4 forms which claims were for the
  benefit of Paja Sisters. Again in that regard these were arbitrary decisions to go
  ahead and process procurement for the benefit of Paja Sisters. Again to do this
  was abuse of authority as a Section 32 officer to sign off on the forms. In my
  humble opinion the actions of Mr Hevelawa and Mr Numara were arbitrary and an
  abuse of office.

  INFLATED INVOICES
  50. The evidence in relation to whether the invoices rendered to OLA by Paja
  Sisters were inflated came from the invoices themselves. Invoices 0005, 0006 and
  0008 are in evidence and speak for themselves. The invoices are identical. I will
  reproduce Invoice 0006. The invoice is directed to the Director General OLA who
  then was Jacob Hevelawa and attention to Mr Numara and is dated 21 June, 2013.

  Item Description Quantity U/Price Total

  1 Cutting Grass 50 1/350 K17,500
  2 Landscape/Improvement 50 1/250 K12,500
  3 Removal of Rubbish 50 1/150 K7,500
  4 Lawn Mower Hire and Use 8 1/1500 K12,000
  5 Vehicle Hire and Use 2 1/2500 K5,000
  6 Cost of Fuel, Oil, Diesel 10 1/200 K2,000
  7 Members 50 1/500 K25,000
  8 Lunch for Members 50 1/20 K1,000

• Page 18 of 22

• S/Total K82,500
  G/Total Vat 10% K8,500

  TOTAL K91,000

  51. When one looks at the Invoice 0006 there are 50 people to be paid at K350
  per person with a total of K17,500.00 for grass cutting, 50 people to be paid K250
  per person with a total of K12,500 for landscaping and improvement to be paid
  K150.00 per person with a total of K7,500.00 for removal of rubbish, 8 lawn
  mowers hired and used at K1,500 per lawn mower with a total of K12,000 for their
  hire and use, two vehicles hired and used at K2,500for per motor vehicle with a
  total of K5,000 for their hire and use, 10 containers of fuel, oil and diesel at K200
  per container for a total of K2,000, 50 members at K500 per member for a total of
  K25,000 and lunch money for 50 members at K20.00 per member for a total of
  K1,000.00. The sub-total of all that is K82,500.00 plus VAT at 10% at K8,500 and
  the grand total coming up to K91,000.

  52. When one works out how much each of the 50 members would have earned
  from Invoice 0006 each of the 50 members would have earned K1,485.00. As
  alluded to earlier not one of the 50 members was called to confirm that he or she
  received any of the payments.

  53. Moreover with respect not one of the lawn mower owners was called to give
  evidence that his or her lawn mower was hired by Paja Sisters at the material time.
  Similarly not one of the vehicle owners was called to support Mrs Hevelava’s
  story. With respect I do not and cannot understand why the 50 members should be
  given any payment for lunch. Why would the OLA be paying for lunches.

  54. Kakaito Kasi said it costs K205.00 to cut grass and clear the yard every
  month. Sibona Asigau said the payments should be around K15,000.00 to
  K20,000.00 and not beyond those amounts. He said the amounts invoiced by Paja
  Sisters were excessive and inflated. I too, with respect, think the amount quoted
  and invoiced were inflated and excessive and I find so. All these moneys were
  squandered in the absence of a Board. Had there been a board these matters may
  have caught the attention of the board and have the Director General to account for
  these activities and the huge amount of money that is more than a quarter of the

• Page 19 of 22

• entire OLA budget for a year just on cleaning and landscaping.

  55. In relation to Counts 1, 2 and 3 relating to charges of abuse of authority of
  office, I am satisfied beyond reasonable doubt that both accused Jacob Hevelawa
  and Timothy Numara did commit the offence of abuse of office as charged.

  Conspiracy to Defraud
  56. In relation to the charge of conspiracy to defraud the elements of the offence
  of conspiracy are:-

  a) A person
  b) On a date
  c) At a place
  d) Who conspires
  e) With another
  f) To defraud the public or any person.
  In this case elements (a), (b) and (c) are not in dispute but (d), (e) and (f) are in
  dispute.
  57. In relation to this charge there is no direct evidence that Mrs Hevelawa, Mr
  Hevelawa and Mr Numara conspired to defraud the State. Conspiracy as a noun
  means “a secret plan by a group of people to do something harmful or
  illegal.” (Oxford Advanced Learners Dictionary New 8th Edition). The question at
  this stage is – did Mrs Hevelawa, Mr Hevelawa and Mr Numara come up with a
  secret plan to defraud the State?

  58. From Mogose Sisters experience, Mrs Hevelawa knew a cleaning job was
  there for the taking at OLA. She knew her husband was the boss at OLA.
  Although no direct evidence was adduced there is a high likelihood of Mrs
  Hevelawa talking or discussing the cleaning contract with Mr Hevelawa. This
  culminated in Mrs Hevelawa fulfilling her dreams to own her own business. This

• Page 20 of 22

• was then progressed with Mr Numara’s involvement in drafting the contract on
  behalf of Mrs Hevelawa and Paja Sisters. There is no direct evidence that Mr
  Numara discussed this with Mr Hevelawa. However the end product, that is the
  cleaning contract was signed by all three accused persons. I cannot imagine
  Miriam not discussing the matter of the cleaning contract with Jacob at home.
  59. The law on conspiracy is that there must be an agreement between 2 or
  more people to commit an unlawful act or to commit a crime at some time in the
  future. Conspiracy could require one overt act in the furtherance of the agreement
  to constitute the offence. In this case there is no direct evidence of the agreement
  or conspiracy but the act of signing a cleaning contract between Mrs Hevelawa, Mr
  Hevelawa and Mr Numara in my respectful opinion is an overt act in the
  furtherance of an agreement between them. The consequential events of the filling
  of the Finance Forms 3 and 4 and the signing of them by Mr Hevelawa and Mr.
  Numara and the lodgment of the Paja Sisters Invoices are all overt acts in the
  furtherance of the agreement, in my respectful opinion. See The State v Iori
  Veraga (2005) N2921.
  60. On the evidence, I am satisfied beyond reasonable doubt that elements (d),
  (e) and (f) of the charge of conspiracy to defraud have been made out.
  Accordingly, I find all 3 accused guilty to Count 4 of the charge beyond reasonable
  doubt.

  Misappropriation
  61. The accused are also jointly charged with 3 counts of misappropriation
  contravening s.383A(i) of the Criminal Code Act. The elements of the charge of
  Misappropriation are:-

  a) The accused
  b) On a date
  c) At a place
  d) Dishonestly applied
  e) To his or her own use or to use of another

• Page 21 of 22

• f) Property
  g) Belonging to another
  The State has the burden to prove beyond reasonable doubt each of the elements of
  the charge.
  62. Elements (a), (b) and (c) are not in dispute in that all three accused have
  been named and the date and place are specified and not in dispute. Elements (d),
  (e), (f) and (g) are disputed.

  63. Dishonesty relates to the state of mind of the accused. In this case the issue
  is whether the accused acted dishonestly. In entering into a cleaning contract there
  is no doubt Mrs Hevelawa and Mr Hevelawa had vested interests to be entering
  into that contract. They both had vested interest in the cleaning contract. Mr
  Numara on the other hand, a very highly educated man and an experienced public
  servant ought to have known that Mr Hevelawa had a conflict of interest since his
  wife was also a party. He ought to have sounded or alerted Mr Hevelawa that he
  had a vested interest and was therefore in a conflict of interest situation and
  therefore should have stopped Mr & Mrs Hevelawa from entering into the contract.
  Looking at the conduct of Mr Hevelawa, Mr Numara and Mrs Hevelawa from the
  outside what would a decent, reasonable and an honest person think about their
  conduct individually and collectively? Similarly using the subjective test both Mr
  Hevelawa and Mr Numara are highly educated. They are also both very
  experienced public servants. Given their education levels, experience and
  intelligence, they would have appreciated that what they were doing was dishonest.
  By first of all entering into a cleaning contract and then signing finance forms 3
  and 4 and then signing inflated invoices for excessive payments and then Mr
  Hevelawa giving instructions that the invoices be part paid, what was going on in
  their minds. Did they think their conduct was alright?

  64. To put it bluntly with respect, their collective actions were to cheat the State.
  The inflated invoices which I have discussed earlier in detail and which speak for
  themselves is clear evidence that the amounts charged were in excess of the actual
  work done. The example of invoice 0006 glaringly overcharged OLA.

  65. In the end result, I am satisfied beyond reasonable doubt that the accused
  intended to cheat, deceive and mislead (see The State v Gabriel Ramoi (1993)

• Page 22 of 22

• PNGLR 390. I find each of them guilty to Counts 5, 6 and 7 of the charge of
  Misappropriation.
  _______________________________________________________________
  Public Prosecutor: Lawyer for the State
  Public Solicitor: Lawyer for the Defence