The State v Jonah Posa [2017] N9388

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    Provincial Accountant guilty of dishonestly applying to his own use and to the use of others, K1,317,015 belonging to the State.

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  • N9388
    PAPUA NEW GUINEA
    [IN THE NATIONAL COURT OF JUSTICE]

    CR (FC) NO. 347-356 OF 2017

    BETWEEN:
    THE STATE

    AND
    JONAH POSA

    Mt Hagen: Salika CJ
    2021: 8th February; 5th July
    2022: 3rd January

    CRIMINAL LAW – Practice and Procedure – Misappropriation charges – s.
    383 A of the Criminal Code Act – Whether the accused received the cashed
    money – Whether the accused dishonestly applied the money.

    Cases Cited:

    Hagena v The State (2017) SC1659
    Kindi Lawi v The State [1987] PNGLR 183
    Roland Tom and Kalen Kopen v The State (2019) SC1833
    State v Gabriel Ramoi [1993] PNGLR 390
    The State v Amoko Amoko [1981] PNGLR 373
    The State v Basse [2016] PGNC 131: N6322
    The State v Laumadava [1994] PNGLR 291
    The State v Titeva Fineko [1978] PNGLR 262

    Counsel:

    Mr F Popeu, for the State.
    Ms E Wurr with Mr D Pepson, for the Accused.

  • Page 2 of 27

  • 3rd January,2022

    1. SALIKA CJ: INTRODUCTION: The Accused in this matter is
    charged with 39 counts of dishonestly applying to his own use a total of
    K1,317,015.16, the property of the Western Highlands Provincial
    Government (WHPG), between 2013 and 2014. The charge is brought under
    s. 383 A (1) (a) of the Criminal Code Act (CCA).

    2. He denied all the 39 counts and a trial ensued.

    Allegations on Arraignment
    3.1 The Accused Jonah Posah was employed as the Acting Provincial
    Accountant with the Western Highlands Provincial Government (WHPG)
    here in Mt Hagen from 2013 to 2014. In 2014, a new Provincial Treasurer, a
    Mr Timothy Rupula was appointed.
    3.2 Mr Rupula upon taking office in June 2014 conducted a quality check
    of the Western Highlands Provincial Government Operating Accounts namely
    the Western Highlands Provincial Government Operating Account No.
    1000321067, the Western Highlands Government Grant Account No.
    10001684852 and the Western Highlands Provincial Treasury Account No.
    100874179 and noted that certain cheques showing in the Bank Statements
    were not showing in their Cheque Reconciliation Listings and Cash Book in
    the Treasury Office. Mr Rupula wrote to the Provincial Administrator (PA)
    Mr Joseph Neng of his investigation results. The PA wrote to the Department
    of Finance to do an audit of the accounts of the WHPG.
    3.3 The National Finance Department carried out an investigation into
    these matters and it discovered that PGAS Cheques from the Western
    Highlands Provincial Treasury were being unlawfully printed outside of the
    normal cheque printing process and the cheques were being cashed.
    3.4 Further investigations were carried out by the Police concerning the
    allegations and the accused was arrested and charged together with a number
    of other suspects employed in the WHPG Treasury Office.
    3.5 It is alleged with respect to the Accused that whilst being the Acting
    Provincial Accountant, he was the immediate supervisor to all the other staff
    in the Treasury Office in the absence of a Provincial Treasurer.
    3.6 By virtue of his position, he gained access to the Blank Cheques being
    kept in the Cheque Printing Office within the Treasury Office and with the
    assistance of 3 other female officers, lodged requisitions and FF3’s and FF4’s

  • Page 3 of 27

  • and wrote out cheques in their own names and names of few other
    unsuspecting employees of the Treasury Office on the blank PGAS cheques
    and had the cheques paid out in Cash Advances in their own names and in the
    names of those other employees.
    3.7 The Accused was a signatory to all 3 main Provincial Government
    Operating Accounts together with the 2 other female officers at the Treasury
    namely; Wilma Pole and Linah Mark, and all three were actively involved in,
    first of all, raising false FF3’s and FF4’s and then at the end of the process,
    had the cheques printed in their own names and in the names of some of the
    unsuspecting employees in the Treasury Office. All the confirmation letters
    for the payment of cash on the various cheques were signed off by the
    Accused and Wilma Pole would sign as the Counter Signing Officer. These
    cheques were then taken to the BSP Bank in Mt Hagen and cashed out on all
    occasions on the same day of presentation of the cheques.
    3.8 Where it was required for the payees signature on the cheque, it is
    alleged that whoever of them took the cheques to the BSP Branch in Mt
    Hagen, that person would forge the signatures of those payees and the
    cheques would be encashed.
    3.9 This was the modus operandi of the Accused and his accomplices who
    in the end paid themselves monies to the value of K1,317,015.16. It was such
    a simple scheme the Accused and others designed to commit the offences and
    it was working well.

    3.10 It is alleged that the Accused by doing this between the 1st of March
    2013 and August 2014, raised for himself, 11 cheques to the value of
    K419,000.00 and dishonestly applied the money to his own use.
    3.11 It is also alleged that the Accused after raising cheques in the name of 5
    other unsuspecting employees, had their cheques cashed at the BSP Bank in
    Mt Hagen and he received the cash and applied the money to his own use and
    purposes also.
    3.12 The total amount of monies he received in this scheme is a further
    K410,459.16, bringing the total monies he directly received and benefited to
    the tune of K829,459.16.
    3.13 It is further alleged that the 3 female officers received a total of
    K487,556.00 from cashing of 16 PGAS cheques. It is alleged that they
    cashed and applied the money to their own use.
    3.14 It is also the State’s allegation that because he aided the 3 female
    officers in raising their cheques and cashing them, the Accused by virtue of
    Section 7 of the Criminal Code Act, is considered and deemed to have

  • Page 4 of 27

  • dishonestly applied the money totaling K487,556.00 to the use of his 3
    colleagues. He therefore is responsible for the actions of the three female
    officers and the three female officers are similarly responsible for his actions.
    3.15 It is the State’s allegation therefore that the Accused Jonah Posa by his
    actions dishonestly applied K829,459.16, money belonging to the Western
    Highlands Provincial Government to his own use and he dishonestly applied
    K487,556.00 to the use of other persons as named in the indictment.
    3.16 The total monies alleged to have been dishonestly applied to his own
    use and to the use of other persons is K1,317,015.16. However, that total
    amount is decreased as a result of 3 charges being dismissed on the no case
    submission.
    4. Firstly, I put on record that this case was never pre-trialed by the
    resident Judges and visiting Judges alike until it came on for trial. I indicated
    to counsel that it was too late for that now and the matter went to trial without
    a pretrial. The advantages of pre-trial are that the allegations are properly
    identified and the defenses, made known and the issues crystalized. This
    makes the Trial Judge’s work more focused on the issues and makes the work
    of the State Prosecutor and the Defense Counsel more focused on their
    respective cases, in terms of what witnesses to call and more focused cross-
    examination of the witnesses. In doing this, time is gainfully utilized and
    costs minimized.

    5. That said, this case was trialed in a long-winded way and to me the
    most concerning things in this case are how fragile the country’s procurement
    process is, and secondly, how very serious fraud cases are assigned to fairly
    junior officers to investigate. This was one such case.

    ISSUES

    6. The issues for the Court to determine are:

    (i) Whether the Accused was involved in any manner in the raising
    of the requisition forms, the Finance Form 3 and Finance Form 4
    (FF3’s and FF4’s);

    (ii) Whether the accused followed the procurement process under the
    Public Finance Management Act (PF(M)A);

  • Page 5 of 27

  • (iii) Whether the accused received any of the cash proceeds from the
    33 PGAS cheques cashed.

    (iv) Whether the cash money was used for the purposes requested
    and applied for by the accused.

    (v) If he did, whether the accused dishonestly applied the cash
    money for his own use or to the use of others.

    ELEMENTS OF CHARGES OF MISAPPROPRIATION

    7. Section 383 A (1) (a) of the Criminal Code Act provides:
    383A. MISAPPROPRIATION OF PROPERTY.
    [122](1) A person who dishonestly applies to his own use or to the use
    of another person–
    (a) property belonging to another; or
    (b) …
    is guilty of the crime of misappropriation of property.

    8. The following are elements of the charge:
    a) The accused.
    b) On a date;
    c) At a place;
    d) Dishonestly apply to his own use, or use of another;
    e) Property belonging to another.

    9. The State has the burden of proof to prove each and every element of
    the charge beyond reasonable doubt. To do that, the State must adduce
    credible evidence from witnesses who saw and heard first-hand what
    happened. The State may also adduce circumstantial evidence to prove its
    case.

  • Page 6 of 27

  • Explanation of Charges

    10. Jonah Posa is charged with 39 counts of misappropriation of
    K1,317,015.16. Counts 1 to 4 and 6 to 11 are payments allegedly made out in
    the name of Jonah Posa and are monies allegedly applied by him for his own
    use. Counts 12 to 22 relate to Provincial Government Accounts System
    (PGAS) cheque payments made in the name of other officers in the Provincial
    Treasury Office and to an entity but the monies in the cheques were used by
    the Accused Jonah Posa for his own use. Counts 23 and 25 to 34 and 36 to 38
    relate to PGAS cheque payments raised in the names of three female officers
    and allegedly allowed to be used for the benefit of those three female officers
    by the Accused, their Supervisor.
    Facts not Disputed
    11.1 Jonah Posah was at the material times (between December 2013 and
    August 2014) the Acting Provincial Accountant with the Western Highlands
    Provincial Treasury in Mt Hagen.
    11.2 On occasions in the absence of the Provincial Treasurer, he was the
    overall immediate supervisor to all the staff/officers at the Provincial Treasury
    Office and that included all those officers who had the PGAS Cheques raised
    in their names in that period in question.
    11.3 He was a signatory to all 3 WHP Government Operating Accounts held
    at BSP Mt Hagen namely:

    a) The WHP Government Operating Account # 1000321067,

    b) The WHP Government Operating Account # 1001684852, and

    c) The WHP Treasury Operating Account # 100874179.

    11.4 Two other female officers namely Wilma Pole and Linah Mark were
    counter signatories to these same accounts and in those capacities, they raised
    PGAS Cheques as Advances in their own names and in the names of other
    Provincial Treasury Officers and had them cashed at the BSP Mt Hagen
    Branch.

    11.5 Of all the cheques cashed, in this case, Jonah Posa signed as signing
    officer and Wilma Pole signed as counter signing officer in most of the
    cheques whilst Linah Mark signed only 4 of the cheques.

    11.6 In all, Letters of Authority or Confirmation produced to the bank in

  • Page 7 of 27

  • respect of the cheques, Jonah Posah signed on all of them with Wilma Pole
    and only on two of these letters, Linah Mark signed in place of Wilma Pole.

    11.7 Except for K10,000 being for the purchase of bank cheque application in
    the name of Jonah Posa and K7,750 in the names of Linah Mark and Wilma
    Pole respectively for the same purpose that were deposited into their
    respective accounts, all the other 33 remaining cheques were cashed at the
    counter at BSP Mt Hagen on the same day of presentation of the cheques with
    letters of authorization.

    Facts in Dispute

    12.1 The Accused was not involved in the cashing of the 33 PGAS cheques
    at BSP Mt Hagen Branch directly or indirectly.

    12.2 That the cashed proceeds of those 33 PGAS cheques were lawfully and
    genuinely applied for their intended purposes.

    12.3 That he did not dishonestly apply the proceeds of the cheques totaling
    K1,109,015.16 to his own use and, or to the use of other persons.

    Evidence

    13. The State’s first witness was Tom Tiki. He is the First Assistant
    Secretary, Department of Finance Internal Audits and Compliance Section. A
    request was made by the Western Highlands Provincial Government to the
    Department of Finance to conduct an audit investigation into the accounting
    anomalies found in reconciliation of the books of accounts of the Western
    Highlands Provincial Government. The witness was part of the investigation
    team to Mt Hagen and he compiled an audit report which was tendered into
    evidence with no objection from the defense counsel.

    14. The Audit Report relevantly, among other things, contains the
    following:

    a) Executive Summary;
    b) Objectives;
    c) Scope;
    d) Audit Findings; and
    e) Recommendations.
    15. The audit report says that most, if not all cheques were printed and
    made payable to individual Provincial Treasury Officers, namely the accused

  • Page 8 of 27

  • Jonah Posa, Wilma Pole, Linah Mark, Priscilla Nasa, Suka Wagame, Maria
    Agil, Joe Pawa and Peter Pombone for various amounts which now form the
    basis for the various cheques. Mr Tiki’s oral evidence supports the audit
    report he authored.

    16. The audit report also highlighted and is critical of the fact that the
    normal procurement procedure would have been for the finance forms 3 and 4
    (FF3’s and FF4’s) also referred to as payment vouchers are to be prepared and
    submitted by the authorized requisition officer(s) for cheques to be drawn out
    in favour of the suppliers of goods and services. In this case, some FF3’s and
    FF4’s were submitted purposely for District Treasury rollout programs for
    cash advances for the supply of white and brown goods. The cash advances
    requested were to be paid out to the Provincial Treasury Officers namely,
    Jonah Posa, Wilma Pole, Linah Mark, Priscilla Nasa, Suka Wagame, Maria
    Agil, Joe Pawa and Peter Pombone. All the claims submitted for payment
    were all under K50,000.00, which was in the financial threshold authority of
    the Deputy Branch Manager of BSP, Mt Hagen Branch. Again, Mr Tiki’s
    oral evidence supports the audit report.

    17. The audit report further highlighted that the PGAS cheques were
    printed in the Provincial Treasury Office in the name of those officers and
    presented to the Bank for cash payments. A “PLEASE PAY CASH” rubber
    stamp designed for that purpose was imprinted on the face of each of the
    cheques to authorize payment by cash and would be signed off on all those
    cheques by Jonah Posa, the Provincial Treasurer, and the accused in this
    matter. The cheque would be taken to the BSP Mt Hagen Branch and
    presented with a letter by either the payee of the cheque or Jonah Posa to the
    Bank Tellers to be cashed. The cash was paid out to whoever was present at
    the bank counter who presented the cheque to the teller for payment. Once
    the cash was paid out, the transaction was never recorded on the cash register
    book kept at the Provincial Treasury Office. From that time on, there was no
    record of whether the payee used the cash money to purchase those white and
    brown goods from the suppliers to furnish the District Treasury Office and the
    accommodation. That with respect appeared on the evidence to be the
    scheme from December 2013 through to August 2014, a period of 9 months.
    Mr Tiki supported his written audit report with his oral testimony.

    18. The next witness Joseph Neng was the Acting Provincial Administrator
    at the material time. He is no longer in office. From what I gather from him
    he did not know whether he was the S32 officer, for the purpose of the
    PF(M)A, whether he was a signatory to the relevant Provincial Government
    Bank Accounts and whether he signed any of the cheques in question. In the
    end, he agreed he was the S32 Officer under the PF(M)A and that he was a
    signatory to the relevant Provincial Government Accounts involved in this

  • Page 9 of 27

  • case.

    19. With respect, this witness only became involved in requesting the
    Department of Finance to do the audit inspection of the Provincial
    Government bodies of accounts. His involvement in the alleged fraud was
    after the event and with respect the casual attention this witness gave to what
    was happening right under his very watch is alarming. For instance, the very
    officers allegedly involved in the scheme are still employed in the Provincial
    Treasury Office.

    20. Mr Neng was shown an FF3 and FF4 requisition forms wherein he saw
    his signature on the form and agreed he signed the FF3 form approving the
    requisition for K40,000.00 as cash advance for white goods for the District
    Treasury Rollout Program in the name of Jonah Posa, the accused. That
    documentation related to only Count 11 on the indictment and that was the
    only FF 3 he signed and approved.

    21. The next witness was Timothy Rupula, the current Provincial Treasurer
    (PT) or Provincial Finance Manager (PFM). He became the PFM in 2013 and
    discovered the anomalies and the gross abuse of the procurement process by
    the Provincial Treasury Officers including the Acting Provincial Accountant,
    Jonah Posa. His evidence was that cash advances should not be given to
    individual finance officers, but if there were cash advances to the officers,
    those officers must do the acquittals before another cash advance is requested
    and a cheque is raised.

    22. This witness said he alerted the PA of what he discovered and asked
    him to write to the Finance Secretary, Dr Ken Ngangan, to commission an
    audit of the WHPG accounts. His evidence was that a Provincial Capacity
    Building Program was carried out by him to assist provincial officers to do
    proper monthly reconciliations and using that program, he discovered the
    WHPGAS cheques were showing in the bank statements but not in the
    Provincial Treasury Records. On checking with the BSP in Mt Hagen, he
    discovered that while the bank balance was showing that monies were being
    paid out, the cash book records at the Treasury Office did not balance out and
    was not reflecting the payouts being done at the bank.

    23. On closer examination, the physical cheques presented for payments at
    the BSP in Mt Hagen did not match the records held at the Treasury Office.
    This meant that the cheques were not raised within the system and that no
    proper processes were followed to raise those cheques presented at the bank.
    In other words, the proper procurement process was not followed to have the
    cheques processed.

  • Page 10 of 27

  • 24. It was put to Mr Rupula in cross examination that records were kept
    and the acquittals were made by the Accused but those records were
    deliberately hidden or kept away from the audit team. Mr Rupula denied this
    suggestion. It was also suggested to him that he had a personal interest in the
    matter and did not give the documents to the audit team. He denied these
    suggestions too. It was put to him that he was lying about cash advances paid
    out as he was himself a recipient of such cash advance to which he said he
    acquitted his cash advance.

    25. He was questioned about the Provincial Finance Advisor approving the
    FF3 and FF4 requisitions for cash advance to suggest that what the accused
    and others were doing was an accepted practice. Mr Rupula said while the PA
    signed as the S32 officer, he (Mr Rupula) was required to sign the FF3 and
    FF4 as the financial delegate and in this case, he did not. He said he did not
    sign on the FF3 and FF4 forms therefore the requisitions were invalid.

    26. The next witness, Maria Argil, is an employee of Western Highlands
    Provincial Treasury Office, working as a Revenue Registry Clerk, and in 2013
    and 2014, she was the Cash Office Clerk and her role was to collect revenue
    for the Provincial Government. Her other critical evidence was that she never
    filled an FF3 and FF4 requisition for cash advances for herself or anyone.
    She denied seeing and receiving any cheque raised in her name and denied
    receiving any money advances from that cheque.

    27. The next witness was Philip Kunjil, an employee of the Western
    Highlands Provincial Treasury Office, as an examiner. His duty there was to
    examine all claims that came through the process before cheques were issued.
    His evidence was that a cheque in the sum of K35,000 was raised in his name
    which he was not aware of. He also said the requisition for that cheque
    payment was never examined by him. Someone else benefited with the
    K35,000.00 cheque that was raised in his name. The witnesse’s evidence was
    in relation to Count 39 of the charges.

    28. The next witness was Elizabeth Pym, who is the Certifying Officer
    with the Western Highlands Treasury Office at the material time. Part of her
    duty was to maintain accurate financial records of the Provincial Treasury
    Office; maintain a register of all Advances and Acquittals and ensure all
    claims coming into the Treasury Office Accounts were registered. Her job
    was to examine all claims to ensure they were approved by S32 officers and
    Financial Delegates and ensured all supporting documents were attached to
    the claims.

    29. The witness was shown Exhibit G, which is an FF4 concerning cheque
    voucher 138570 for K40,000.00 in the name of Jonah Posa relating to Count

  • Page 11 of 27

  • 11. She was shown the FF4 and said she was supposed to sign as the
    certifying officer on it but Linah Mark signed instead. She said if she is not
    available, Jonah Posa would sign but in this case Linah Mark signed. She
    said she never benefited from any of the cash advances in this case.

    30. Peter Pembono was the next witness. He worked as a cleaner at the
    Provincial Treasury Office at the material time. A cheque numbered 9753 in
    his name for K23,105.16 was shown to him and agreed the cheque was in his
    name, but said he never put in a requisition for cash advance and never got
    the money. He was not aware that such a claim had been raised in his name
    and that a cheque for the said amount had been raised in his name. He never
    benefited from this cheque. The cheque was tendered into evidence and is
    Exhibit I in relation to Count 21.

    31. The next witness for the State was Vincent Minagu, an investigator
    with the Bank South Pacific. He was attached to the Highlands Regional
    Investigation Unit at the time of the investigation in this matter. His evidence
    is that he responded to search warrants served by the Police on the BSP Mt
    Hagen Branch. He said by virtue of the search warrants issued, the Bank was
    required to produce copies of the PGAS cheques, payment vouchers and other
    related supporting documents relating to this case including FF3’s and FF4’s.
    He complied with the search warrants and located the relevant cheque copies,
    confirmation letters and payment vouchers and handed them over to the
    Police Investigator, Detective Constable Joyce Pinia, of the Fraud and Anti-
    Corruption Division of the Constabulary.

    32. Bank documents tendered into evidence through this witness by the
    State without objection are now exhibits before the Court. There were
    instances where the confirmation letters signed by the accused did not
    accompany cheque copies. The following bank documents tendered through
    this witness were:

    1. Indemnity Receipt dated 27.10.16 Exhibit J
    relating to WHP Govt Grant AC
    No. 1001684852
    2. Bank Statement of WHPG Grant Exhibit K
    AC 1001684852
    3. Let for Prov Treasurer requesting Exhibit L
    change of Signatories to above AC
    (pges)

  • Page 12 of 27

  • 4. Copy of Purchase of Bank Chq Exhibit M (subject of Count 38,
    Application showing 3 names Linah Count 33 and Count 10
    Mark K7,750, Wilma Pole K7,750 respectively).
    and Jonah Posa K10,000.
    5. Chq No. 9759 (9550) in name of Exhibit N (Subject of Count 29)
    Wilma Pole for K40,000 dated
    31.12.13.
    6. Chq No. 9757 (9548) dated Exhibit O (Subject of Count 2)
    31.12.13 for K49,500.00 in name of
    Jonah Posa
    7. Chq No. 9753 (9750) dated Exhibit P (Subject of Count 1)
    20.12.13 in name of Jonah Posa for
    K40,000.00.
    8. Chq No. 9755 (9752) dated Exhibit Q (Subject of Count 13)
    20.12.13 in name of Suka Wagame
    for K30,000.00.
    9. Chq No. 9551 (9760) dated Exhibit R (Subject of Count 12)
    31.12.13 in name of Suka Wagame
    for K38,500.00
    10. Chq No. 9772 dated 31.12.13 in Exhibit S (Subject of Count 23)
    name of Priscilla Nasa for
    K15,000.00.
    11. Chq No. 9803 dated 26.05.14 in Exhibit T
    name of Jonah Posa for Cheque not subject of any charge.
    K40,000.00.
    12. Chq No. 9552 (9761) in name of Exhibit U (Subject of Count 16)
    Maria Argil for K37,554.89.
    13. Chq No. 9754 dated 31.12.13 in Exhibit V (Subject of Count 22)
    name of Air Niugini for
    K40,000.00.
    14. Statement for 2013 for WHPG Exhibit W
    Treasury Operating AC
    1000874179 plus Indemnity
    Receipt.
    15. Bank Statement as above for 2014 Exhibit X
    16. Chq No. 17435 dated 26.5.13 in Exhibit Y (Subject of Count 32)
    name of Wilma Pole for
    K30,000.00.
    17. Indemnity receipt dated 27.10.16 Exhibit Z
    re WHPG Operating AC N
    10000321067

  • Page 13 of 27

  • 18. Bank Statement of AC for WHPG Exhibit AA
    Operating AC for Jan 2013 to Dec
    2013 and Jan 2014 – Aug 2014.
    19. Chq No. 138224 dated 12.2.14 in Exhibit BB (Subject of Count 30)
    name of Wilma Pole or
    K30,000.00.
    20. Chq No. 138240 (138217) dated Exhibit CC (Subject of Count 31)
    23.12.13 in name of Wilma Pole for
    K39,306.00
    21. Chq No. 139009 dated 31.7.14 in Exhibit DD
    name of Wilma Pole for Cheque not subject of any charge.
    K40,000.00.
    22. Chq No. 138226 (138025) dated Exhibit EE (Subject of Count 14)
    6.2.14 in name of Suka Wagame for
    K35,000.00.
    23. Chq No. 138220 (1382390) dated Exhibit FF (Subject of Count 25)
    21.02.14 in name of Priscilla Nasa
    for K32,500.00.
    24. Chq No. 138368 (138366) dated Exhibit GG (Subject of Count 27)
    29.4.14 in name of Priscilla Nasa
    for K30,000.00.
    25. Chq No. 138284 dated 11.4.14 in Exhibit HH (Subject of Count 26)
    name of Priscilla Nasa for
    K34,000.00.
    26. Chq No 13804 and 138225 dated Exhibit II (Subject of Count 24)
    6.2.14 in name of Priscilla Nasa for Dismissed at No Case
    K30,000.00. Submission stage)
    27. Chq No 138571 dated 26.5.14 in Exhibit JJ (Subject of Count 28)
    name of Priscilla Nasa for
    K25,000.00.
    28. Chq No. 138027 dated 21.2.14 in Exhibit KK (Subject of Count 18)
    name of Maria Argil for
    K40,000.00.
    29. Chq No 138223 dated 6.2.14 in Exhibit LL (Subject of Count 17)
    name of Maria Argil for
    K40,000.00.
    30. Chq No. 138366 or 137481 in Exhibit MM
    name of Maria Argil for Cheque not subject of any charge.
    K30,000.00.
    31. Chq No. 139102 dated 6.8.18 in Exhibit NN
    name of Maria Argil for Cheque not subject of any charge.
    K42,000.00.

  • Page 14 of 27

  • 32. Chq No. 138224 or 138023 dated Exhibit OO (Subject of Count 3)
    6.1.14 in name of Jonah Posa for
    K45,000.00.
    33. Chq No. 139008 dated 31.7.14 in Exhibit PP
    name of Jonah Posa for Cheque not subject t of any
    K40,000.00. charge.
    34. Chq No. 138570 dated 26.5.14 in Exhibit QQ (Subject of Count 11)
    name of Jonah Posa for
    K40,000.00.
    35 Chq No. 138263 or 138367 dated Exhibit RR (Subject of Count 9)
    29.4..14 in name of Jonah Posa for
    K40,000.00.
    36. Chq No. 138291 or 138238 dated Exhibit SS (Subject of Count 4)
    21.2.14 in name of Jonah Posa for
    K48,500.00.
    37. Chq No. 138285 dated 2.4..14 in Exhibit TT (Subject of Count 7)
    name of Jonah Posa for
    K25,000.00.
    38. Chq No. 138274 dated 6.1.14 in Exhibit UU (Subject of Count 6)
    name of Jonah Posa for
    K45,000.00.
    39. Chq No. 138283 dated 11.4.14 in Exhibit VV (Subject of Count 8)
    name of Jonah Posa for
    K36,000.00.
    40. Chq No. 138572 dated 26.5.18 in Exhibit WW (Subject of Count
    name of Wilma Pole for 34)
    K35,000.00.
    41. Chq No. 136764 dated 23.6.14 in Exhibit XX
    name of Wilma Pole for Cheque not subject of any charge.
    K40,000.00.
    42. Chq No. 138218 dated 21.2.14 in Exhibit YY (Subject of Count 37)
    name of Linah Mark for
    K42,700.00.
    43. Chq No. 139105 dated 6.8.14 in Exhibit ZZ
    name of Linah Mark for Cheque not subject of any charge.
    K35,000.00.
    44. Chq No. 138026 or 138227 dated Exhibit AAA (Subject of Count
    6.2.14 in name of Linah Mark for 36)
    K40,000.00.
    45. Chq No. 138286 dated 10.4.14 in Exhibit BBB (Subject of Count
    name of Joe Pawa for K18,000.00. 15)

  • Page 15 of 27

  • 46. Chq No. 138275 dated 2.4.14 in Exhibit CCC (Subject of Count
    name of Maria Paka for 20)
    K45,000.00.
    47. Chq No. 174354 dated 26.3.14 in Exhibit DDD (Subject of Count
    name of Jonah Posa for 5) Dismissed at No Case
    K40,000.00. Submission stage relating to
    Count Number 5.

    33. The next witness for the State was Joe Pawa, a security guard
    employed at the Western Highlands Province Treasury Office. A PGAS
    cheque for K18,000.00 was raised in his name but in evidence he said he
    never knew anything about the cheque raised in his name and never benefited.
    The cheque in his name was cashed but said he never saw the money.
    34. The next State witness was Detective First Constable Joyce Pinia. She
    was the arresting and investigation officer of this case. She gave evidence of
    events leading to the arrest of the accused and others including BSP Mt
    Hagen Branch officers. Her evidence also covered obtaining of the accused’s
    personal bank account statements which showed some unusual bank deposits
    during that material period and cashed.
    35. The State’s next witness was Linah Mark. She was and is one of the
    officers who worked with the accused at the Provincial Treasury Office in Mt
    Hagen. She was also one of the officers who was charged by the Police. The
    State filed a Nolle Prosequi in relation to her charges with a view to give her
    immunity from prosecution and to have her testify against the accused. On
    that basis she gave evidence for the State.
    36. Her evidence at the time of giving her evidence, was that she was the
    Acting Provincial Accountant although she admitted she was not qualified for
    the job. She recalled one particular cheque for cash payment to pay casual
    labourers in her name. She said she did not submit any requisitions for such
    payment, but someone at the accounts did and when the cheque was raised,
    she collected the cheque and had the cheque cashed and said she gave all the
    cash to Jonah Posa. The defense counsel never disputed her evidence on this
    through cross-examination. This evidence remains uncontradicted.
    37. The witness was asked if the raising of the cheques in the name of
    employees in the Provincial Treasury Office was a normal practice and she
    said at times when there was an urgent need for cash for whatever reason, a
    cheque would be raised in someone’s name and cashed the same day.
    However, the PF(M)A does not authorize such a practice, therefore is not
    lawful. In any case, even if raising cash advances were proper, there is no
    suggestion that the cash advances made and cheques processed were for
    emergency purposes. There is no urgent situation in evidence why the

  • Page 16 of 27

  • cheques were raised for the urgency.
    38. She went on to say that the cheque raised in her name to pay the casual
    labourers in the sum of K46,821.70 was raised in that manner which she then
    cashed and gave the cash to Jonah Posa, because she said he was her superior.
    She was never asked if there was a list of labourers names to be paid attached
    to the requisition forms and the FF3’s and FF4’s, either by the State or the
    defense.
    39. She was shown other cheques raised in her name and her evidence is
    that she assisted in cashing the cheques and giving the cash to Jonah Posa or
    she would give the cheques to Jonah Posa which were open for encashment.
    When asked why she gave the cash and cheques to Jonah Posa, she said he
    was her superior and that those were his instructions.
    40. The final witness for the State was Amnesia Sisi, a BSP officer in Mt
    Hagen at the material time. She was questioned about the PGAS cheques
    which were cashed so easily at the BSP Mt Hagen Branch and her explanation
    was that when a cheque was signed three times on the face or front of it, it
    meant that the cheque was open to be cashed and that usually all supporting
    documents and a letter of confirmation for payment would be attached to the
    cheque to be encashed.
    41. A critical aspect of her evidence is that all claims raised in all the
    cheques which were raised were all below the amount of K50,000.00. All
    claims and cheques raised for amounts below K50,000.00 were all in the
    financial threshold authority of the Deputy Manageress of the BSP Mt Hagen
    Branch. In this case, all requisitions and all FF3’s and FF4’s and all cheques
    raised were all below K50,000. Was this a mere coincidence or was it a
    deliberately played out scheme, so that only selected persons or officers were
    involved in cashing the cheques?
    42. In relation to confirmation or authorization letters, this witness said the
    signatories on the letter would be called on their phone numbers to confirm
    the transactions and verify the payments before the actual payment is made.
    This meant that the accused would have been called by the bank tellers and he
    would confirm the transaction and the cash payout. This evidence remains
    uncontradicted.
    43. The Deputy Manageress of the BSP in Mt Hagen Branch at the time of
    trial was not available to be called to give evidence having either transferred
    or terminated.
    44. At the end of the State evidence, the Defence made a no case
    submission which was upheld in part in relation to three counts on the
    indictment. In relation to other 36 charges, the Court found he had a case to

  • Page 17 of 27

  • answer.
    DEFENCE CASE

    45. The accused exercised his rights by declining to give evidence and
    remain silent.
    EVIDENCE OF LINAH MARK, AN ACCOMPLICE
    46. The evidence of Linah Mark may in fact be evidence of an accomplice.
    Evidence of accomplices must be treated with care and caution because often
    accomplices will downplay their own role in a crime. In The State v Basse
    N6322, this Court said, “an accomplice is a person who helps others to
    commit a crime or do something wrong”. In the matter of Hagena v The
    State (2017) SC 1659, the Supreme Court held that the need for a primary
    Judge to warn himself of the dangers of relying on an accomplice’s testimony
    is only necessary when the only evidence before the Court to make a
    determination of guilt is dependent on an accomplice’s uncorroborated
    testimony.

    47. The law on whether or not to accept the evidence of an accomplice
    against another accomplice is that an accomplice accused may be convicted
    on the evidence of an accomplice witness, however, before convicting the
    accomplice accused, the trial judge must warn himself or herself of the
    dangers in relying on the sole evidence of an accomplice witness. See The
    State v Titeva Fineko (1978) PNGLR 262 and State v Amoko Amoko (1981)
    PNGLR 373.

    48. In this case, there is other credible evidence from other witnesses, thus
    the need to warn myself does not exist. If I am mistaken on this, I will still
    warn myself of the danger of relying on Linah Mark’s evidence. Her
    evidence is consistent with the paper and cheque trail and in that regard
    credible.

    ANALYSIS OF THE EVIDENCE

    49. First of all, I take note of the undisputed facts and the disputed facts.
    The primary pertinent undisputed facts are that Jonah Posa was the:

    a) Acting Provincial Accountant at the Provincial Treasury Office
    in Mt Hagen;
    b) The Provincial Treasurer is the immediate boss responsible for
    the Provincial Treasury Office;

  • Page 18 of 27

  • c) In the absence of the Provincial Treasurer, the Accountant would
    act as the boss;
    d) Was a signatory of all three WHPG Operating Accounts held at
    the BSP Mt Hagen Branch;
    e) Wilma Pole and Linah Mark, employees at the PTO in Mt Hagen
    were counter-signing officers to those three WHPG Operating
    Accounts held at the BSP Mt Hagen Branch, and in this case, both
    signed as counter signing officers.
    f) All the cheques, the subject of the charges were signed by Jonah
    Posa, while Wilma Pole signed as a counter-signing officer on most
    of those cheques, except 4 of the cheques which were counter-
    signed by Linah Mark;
    g) The letters of confirmation and authority were signed by Jonah
    Posa and counter-signed by Wilma Pole, while Linah Mark counter-
    signed two of those letters.

    h) The PGAS cheques were signed 3 times on the face of it
    meaning that the cheques were open to be cashed with not much
    questions asked.
    i) No direct evidence that Jonah Posa cashed any of the said
    cheques.
    j) The proper procurement process under the PF(M)A was not
    adhered to.
    50. From all the evidence before the Court, it is clear to me that the proper
    procurement process under the PF(M)A being so fragile was not adhered to
    by Jonah Posa and his team of Treasury officers. For instance, Philip Kunjil,
    the Examiner and Elizabeth Pym, the Certifying Officer, in my respectful
    opinion, never performed their respective roles with due diligence. Philip
    Kunjil said he never examined the claim in his own name. Well, how did it
    get past him? Elizabeth Pym said she maintained a register of all advances
    and acquittals and ensured all claims were examined by her were approved by
    authorized S32 officers. In this case, only one claim was signed by the
    properly authorized S32 officer. Her evidence, to me with respect,
    demonstrates lack of proper attention to detail in her line of duty and lack of
    due diligence in her paid role.

    51. Moreover, the normal process for an institution to order goods and
    services is to get three separate quotations for whatever it is that one is
    ordering from three credible prospective suppliers and when a preferred

  • Page 19 of 27

  • supplier is chosen, the FF 3 and FF 4 will indicate which supplier of the
    goods and services is preferred and a cheque is raised in the name of the
    supplier. In this case, none of this happened. Instead, cheques in this case
    were raised in the name of Jonah Posa and other Treasury Officers, in total
    defiance of the proper procurement process and it can safely be concluded
    that Jonah Posa allowed the improper scheme to be played out.

    52. In more than one instance, cash advances were raised in the name of
    Jonah Posa for the purchase of brown and white goods for the District
    Treasury roll out programme. There is no evidence the money was used to
    buy the white goods and brown goods from any supplier in Mt Hagen. The
    defence counsel submitted that the State did not produce or adduce that
    evidence. True, the State has the burden to prove that no money from the
    cheques was used to buy the goods from any of the suppliers in Mt Hagen or
    elsewhere. On the other hand, the defence never suggested to any State
    witness that the goods were purchased and from which supplier with the cash.
    What happened to that money from the cheques raised in the name of Jonah
    Posa? He has not said what happened to the money. Linah Mark said the
    money after being cashed were given to the accused as the Supervisor. What
    happened to the money after he received them? It appears to have
    disappeared from his hands.

    53. Moreover, the cheques to be cashed bore the authorization and
    confirmation signatures of Jonah Posa, Wilma Pole and Linah Mark. To my
    mind, with respect, the processes invoked in this scheme was to get the cash
    money in the hands of Jonah Posa, Wilma Pole and Linah Mark. The cash
    disappeared in their respective hands. What happened to the cash? No one
    appears to know. The money trail ended with them.

    54. There is no direct evidence Jonah Posa cashed any of the subject
    cheques at the BSP, Mt Hagen. I am however mindful of the evidence given
    by the Bank Officer that all the claims and the cheques raised in this case
    were for amounts of less than K50,000 which meant that the cheques could be
    approved for encashment by the Deputy Bank Manager. I earlier raised a
    question whether keeping all the claims and the cheques below the K50,000
    financial threshold of the Deputy Branch Manager of BSP Mt Hagen Branch
    was a mere coincidence. I can only speculate as I have no direct evidence on
    that point.

    DEFENCE SUBMISSIONS

    55. The defence does not dispute the monies misappropriated belongs to
    the State and so that element of the charge is not disputed. However, the
    defence submitted that the State has not proved the elements of the accused

  • Page 20 of 27

  • dishonestly applying the money to his own use or to the use of others. The
    defence also submitted that while most of the cheques were cashed, the State
    did not adduce any evidence to prove that the funds were used or applied for
    purposes other then for which they were appropriated for and that there is no
    direct evidence the funds were used for other purposes. There is no dispute
    all 33 cheques involved were cashed. The question keeps coming back, what
    happened to the cash?

    56. The following cheques were drawn in the name of Jonah Posa, and
    cashed. What happened to the cash?

    No. Cheque Date Description of Cheque
    1. 20/12/2013 PGAS Cheque No. 9753, Jonah Posa,
    K40,000.00 drawn from WHP Government
    Grant Account No. 1001684852
    2. 31/12/2013 PGAS Cheque No. 9757, Jonah Posa,
    K49,500.00, drawn from WHP Government
    Grant Account No. 1001684852
    3. 6/2/2014 PGAS Cheque No. 138224, Jonah Posa,
    K45,000.00, drawn from WHP Government
    Operating Account No. 1000321067
    4. 21/2/2014 PGAS Cheque No. 138238, Jonah Posa,
    K48,500.00, drawn from WHP Government
    Operating Account No. 1000321067
    5. 2/4/2014 PGAS Cheque No. 138274, Jonah Posa,
    K45,000.00, drawn from WHP Government
    Operating Account No. 1000321067
    6. 10/4/2014 PGAS Cheque No. 138285, Jonah Posa,
    K25,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    7. 11/4/2014 PGAS Cheque No. 138283, Jonah Posa,
    K36,000.00, drawn from WHP Government
    Operating Account No. 1000321067
    8. 29/4/2014 PGAS Cheque No. 138367, Jonah Posa,
    K40,000.00, drawn from WHP Government
    Operating Account No. 1000321067

  • Page 21 of 27

  • 9. 15/5/2014 PGAS Cheque No. 1116166, Jonah Posa,
    K10,000.00, drawn from WHP Government
    Grant Account No. 1001684852.
    10. 26/5/2014 PGAS Cheque No. 138570, Jonah Posa,
    K40,000.00, drawn from WHP Government
    Operating Account No. 1000321067
    57. The following cheques were drawn out in the names of employees in
    the Western Highlands Provincial Government Treasury Office and cashed.
    What happened to the cash?

    1. 31/12/2013 PGAS Cheque No. 9760, Suka Wagame,
    K38,500.00, drawn from WHP Government
    Grant Account No. 1001685852.
    2. 20/12/2013 PGAS Cheque No. 9755, Sukar Wagame,,
    K30,000.00, drawn from WHP Grant Account
    No. 1001685852.
    3. 31/12/2013 PGAS Cheque No. 138226, Suka Wagame,
    K35,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    4. 10/4/2014 PGAS Cheque No. 138286, Joe Pawa,
    K18,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    5. 31/12/2013 PGAS Cheque No. 9761, Maria Agil,
    K37,554.89, drawn from WHP Grant Account
    No. 1001685852.
    6. 6/2/2014 PGAS Cheque No. 138223, Mariah Agil,
    K40,000.00, drawn from WHP Government
    Operating Account No.. 1000321067.
    7. 21/2/2014 PGAS Cheque No. 138237, Mariah Agil,
    K38,300.00, drawn from WHP Government
    Operating Account No. 1000321067.
    8. 29/4/2014 PGAS Cheque No. 138368, Mariah Agil,
    K30,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    9. 2/4/2014 PGAS Cheque No. 138725, Maria Poka,
    K45,000.00, drawn from WHP Government
    Operating Account No. 1000321067.

  • Page 22 of 27

  • 10. 20/12/2013 PGAS Cheque No. 9753, Peter Pombono,
    K23,105.16, drawn from WHP Grant Account
    No. 1001685852.
    11. 31/12/2013 PGAS Cheque No. 9754, Air Niugini Mt Hagen,
    K40,000.00 drawn from WHP Government
    Operating Account No. 1000321067.
    12. 31/12/2013 PGAS Cheque No. 9772, Priscilla Nasa,
    K15,000.00, drawn from WHP Grant Account
    No. 1001685852.
    13. 21/2/2014 PGAS Cheque No. 138239, Priscilla Nasa,
    K32,500.00 drawn from WHP Government
    Operating Account No. 1000321067.
    14. 11/4/2014 PGAS Cheque No. 138284, Priscilla Nasa,
    K34,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    15. 29/2/2014 PGAS Cheque No. 138366, Priscilla Nasa,
    K30,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    16. 26/5/2014 PGAS Cheque No. 138571, Priscilla Nasa,
    K25,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    17. 31/12/2013 PGAS Cheque No. 9759, Wilma Pole,
    K40,000.00, drawn from WHP Grant Account
    No. 1001685852.
    18. 12/2/2014 PGAS Cheque No. 138224, Wilma Pole,
    K30,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    19. 21/2/2014 PGAS Cheque No. 138240, Wilma Pole,
    K39,306.00, drawn from WHP Government
    Operating Account No. 1000321067.
    20. 26/3/2014 PGAS Cheque No. 174355, Wilma Pole,
    K30,000.00, drawn from WHP Treasury
    Operating Account No. 100874179.
    21. 15/5/2014 PGAS Cheque No. 1116165, Wilma Pole,
    K7,775.00, drawn from WHP Grant Account No.
    1001685852.
    22. 26/5/2014 PGAS Cheque No. 138572, Wilma Pole,
    K35,000.00, drawn from WHP Government
    Operating Account No. 1000321067.

  • Page 23 of 27

  • 23. 6/2/2014 PGAS Cheque No. 138227, Linah Mark,
    K40,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    24. 21/2/2014 PGAS Cheque No. 138241, Linah Mark,
    K42,700.00, drawn from WHP Government
    Operating Account No., 1000321067.
    25. 15/5/2014 PGAS Cheque No. 1116164, Linah Mark,
    K7,750.00, drawn from WHP Grant Account
    No., 1001685852.
    26. 5/8/2014 PGAS Cheque No. 139106, Philip W Kunjil,
    K35,000.00, drawn from WHP Government
    Operating Account No. 1000321067.
    58. All these cheques were raised during the time Jonah Posa was in charge
    of the Provincial Treasury Office and when Joseph Neng was the Provincial
    Administrator. There is no evidence before me what triggered the Treasury
    officers to devise such a scheme as in this case, but the evidence suggests
    that the modus operandi was carefully and deliberately designed in a way that
    all claims would be below K50,000.00 so that the cheque could be cashed
    easily and quickly with no questions asked. The 50,000 threshold was within
    the financial authority of the BSP, Mt Hagen Branch, Deputy Manageress. In
    this case all the cheques cashed were all below K50,000.00. The National
    Treasury roll out programme to all Districts in the Western Highlands and rest
    of PNG became a good excuse to support the scheme in getting the cash
    advances.

    59. The Defence submission was that although the cheques were made out
    to Jonah Posa, there was no evidence he cashed the cheques and how the cash
    proceeds were spent. The Defence further submitted that there is no direct
    evidence that Jonah Posa dishonestly used or apply the money for the benefit
    of himself and others. I agree there is no direct evidence to incriminate Jonah
    Posa and that he misused the money.

    60. The same submissions were advanced by the defence in relation to
    cheques raised in the name of other Treasury officers.

    THE LAW

    61. Intention of a person is critically important in this case as to what is
    played out in the mind of that person or a group of persons prior to, during
    and after the event. In other words, it is what is played out in a person’s mind
    or head that matters. It is the mental state of mind of a person. Intention is a
    mental state that represents a commitment to carry out an action or actions in

  • Page 24 of 27

  • the future. It involves planning and fore thought. Whether a person has a
    particular state of mind in relation to the application of property is a question
    of fact. See The State v Gabriel Ramoi (1993) PNGLR 390.

    62. In this case, the Court will need to get into the minds of Jonah Posa,
    Wilma Pole and Linah Mark in order to determine their respective state of
    mind; before, during and after the event to determine whether or not they had
    dishonest intentions. See The State v Laumadava (1994) PNGLR 371.

    63. All the above named officers were employed for some time with the
    Provincial Treasury Office in Mt Hagen. One would expect each one of them
    to be familiar and to be experts in their respective line of duty in the Treasury
    Office especially relating to the procurement processes. One would also
    expect each one of them to have developed and acquire some level of
    expertise and a good grasp of the processes and requirements for procurement
    of goods and services under the PF(M)A where such a need arose in the
    Provincial Treasury Office.

    64. However, what has come out in evidence in this case shows a total
    disregard and defiance of the proper procurement processes and procedures
    laid down under the PFMA by Jonah Posa, Wilma Pole and Linah Mark, the
    very people who were meant to live and administer the PFMA.

    65. The requirement for acquittals under the PM(F) Act before a new
    advance is applied for was completely and blatantly ignored and disregarded
    as is demonstrated through the evidence before the Court by the Treasury
    officers. The invoices and receipts which ought to have accompanied the
    acquittals were no where to be found in the Treasury Office when the audit
    inspection was mounted. If the cash money was used to purchase the goods
    and services, why is it that no such paperwork was found in the Treasury
    Office to demonstrate that the goods and services were provided and the
    money was expended for the intended purposes? There being no direct
    evidence on this, the Court will consider applying the principles applicable in
    the reception of circumstantial evidence. Circumstantial evidence could be
    physical, scientific, human behaviour and indirect witnesses testimony.

    66. The Supreme Court in Paulus Pawa v The State (1981) PNGLR 498
    (Kearney DCJ, Andrew J and Kapi J ) said:

    • The accused must be acquitted unless the facts proved in
    evidence are inconsistent with any reasonable hypothesis other
    than guilty.

    • To enable the Court to be satisfied beyond reasonable doubt of

  • Page 25 of 27

  • the guilt of the accused. It is necessary not only that his or her
    guilt should be a rational inference but that it should be the only
    rational inference that the circumstances would enable it to draw.

    67. In David v State (2006) SC 881, 22 November 2006, the Supreme
    Court (Salika J, Cannings J and Gabi J) expanded on the Paulus Pawa
    decision and said that the principle promulgated in the Paulus Pawa case
    meant that in any case where the State case is substantially reliant on
    circumstantial evidence, the question to be asked is:

    • Do the proven facts lead reasonably to only one conclusion – that
    the accused did all the things constituting the elements of the
    offence? If yes, the accused is guilty. If no, the accused is
    entitled to an acquittal.

    68. In this case, the proven facts are:

    (i) at the material time the accused was employed in the WHPG
    Treasury Office;

    (ii) the accused was the accountant in that office;

    (iii) The FF3’s and FF4’s forms were raised and processed by the
    Treasury officers;

    (iv) the cheques were sourced from the PGAS;

    (v) the cheques were processed by the Treasury officers;

    (vi) the confirmation and authorization of the cheques for cashing
    came from Jonah Posa, Wilma Pole and Lina Mark;

    (vii) all the cheques were cashed at the BSP Mt Hagen Branch;

    (viii) the cash from those cheques were then given to Jonah Posa;

    (ix) ten of the cheques were made payable to Jonah Posa for no good
    or legitimate reason and for which he was not entitled to, paid for
    which he never provided acquittals for, and which were never
    acquitted.

    (x) twenty-three of the cheques were made payable to other Treasury
    officers for no good reason, without their knowledge and for

  • Page 26 of 27

  • purposes they were not entitled to.

    (xi) All cheques raised were not compliant with the law – the PFMA.

    69. With respect, those are the proven facts in this case. Do those proven
    facts lead reasonably to only one conclusion – that the accused at the material
    time and place alleged in the indictment, dishonestly applied to his own use
    and to the use of others the cash monies he was given, which was the property
    of the State?

    70. I set the elements of the charge right at the outset on paragraphs 8 and 9
    of this judgment. There is no contention and issue taken on elements b), c), e)
    and f) of the charge. That means these elements are proven beyond
    reasonable doubt. The only elements in contention and in issue are elements
    a) and d).

    Element a)

    71. It is alleged that Jonah Posa dishonestly applied to his own use and to
    the use of others. There were three main players in the cashing of the PGAS
    cheques namely:
    Jonah Posa
    Wilma Pole, and
    Linah Mark.
    In order to have the cheques processed, false requisitions and false FF3 and
    FF4 forms were processed by the Treasury officers without their knowledge
    under the watch of Jonah Posa. PGAS cheques were then drawn in the names
    of Jonah Posa, Wilma Pole, Linah Mark and other unsuspecting Treasury
    officers who knew nothing about the raising of the false requisitions and false
    FF3 and false FF4s.

    72. There is undisputed evidence that Jonah Posa, Wilma Pole and Linah
    Mark were all signatories to all three WHPG operating accounts. The
    undisputed evidence, as well as evidence that Jonah Posa, Wilma Pole and
    Linah Mark were the authorization officers to the cheques to be cashed.
    There is uncontradicted evidence from Linah Mark that she gave all the cash
    to Jonah Posa after she cashed the cheques. All that evidence points to
    accused Jonah Posa involved in the scheme and the modus operandi.

    73. Did the accused and others involved in this scheme have dishonest
    intention to get the money and to use the money themselves? Going by the

  • Page 27 of 27

  • proven facts alluded to earlier in this judgment, all the evidence; direct,
    circumstantial, and otherwise including behavioral and conduct evidence,
    point to the “yes” inference and answer and that is that Jonah Posa did have a
    dishonest intention to get the money. He never filed any acquittals for those
    monies to exonerate himself. The non filing of the acquittals on the cash
    advances he received is strong evidence that he did not spend the money for
    the purposes for which the cheques were raised. I apply the principles
    enunciated in the long line of case authorities of Kindi Lawi v The State
    (1987) PNGLR 183, The State v Gabriel Ramoi (1993) PNGLR 390, State v
    Laumadava (1994) PNGLR 291 and Roland Tom and Kalen Kopen v The
    State (2019) SC 1833.

    74. All the proven facts and reasonable inferences in this case leads to one
    conclusion and that is Jonah Posa is guilty of the remaining charges on the
    indictment. Accordingly, I find the accused guilty beyond reasonable doubt
    of all the 36 remaining counts of the indictment.

    75. In the circumstances as highlighted above by the evidence, it is not
    difficult for this Court by reasonable inferences to conclude the respective
    conduct of the Officers and whether their respective conducts were honest or
    dishonest, before, during and after the event. In this instance, applying the
    principles in circumstantial evidence cases, I have come to the conclusion that
    the only reasonable hypothesis open to me is that the respective actions of
    Jonah Posa, Wilma Pole and Linah Mark, and their respective state of minds
    coupled with their respective conduct were dishonest and I so find beyond
    reasonable doubt.

    76. This case only relates to the prosecution of Jonah Posa and my finding
    of dishonesty in this case only relates to Jonah Posa. I find that the accused
    on dates specified in each of the respective counts in Mt Hagen dishonestly
    applied to his own use and to the use of others, K1,317,015.16, the property
    of the State. My findings are that the State has proved each of the remaining
    counts or charges beyond reasonable doubt.

    77. Accordingly, I find Jonah Posa guilty of all the remaining 36 counts left
    on the indictment beyond reasonable doubt.

    Public Prosecutor: Lawyer for the State
    Public Solicitor: Lawyer for the Accused