kondra, in re [2015] pglt 2; n6232(lt) (27 april 2015)

Kondra In re [2015] PGLT 2 N6232(LT) (27 April 2015)

N6232 (LT)PAPUA NEW GUINEATHE LEADERSHIP TRIBUNAL APPOINTED PURSUANT

TO SECTION 27 (2) AND 27 (7) (e) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIESOF LEADERSHIP

AND

IN THE MATTER OF THE HONOURABLE BOKA KONDRA MP MEMBER FOR NORTH FLY OPENAND MEMBER OF WESTERN PROVINCIAL ASSEMBLYREFERENCE NUMBER LTN03 OF2014BEFORE

HONOURALE JUSTICE SALATIEL LENALIA- Chairman-

HIS WORSHIP MR IGNATIUS KUREI ndash Senior Magistrate-Member

HER WORSHIP MS ROSIE JOHNSON ndash Senior Magistrate-Member

Waigani

2014 27th amp 30th October 2015 26th January 18th ndash 20th 23rd ndash 27th February amp 27th April

CONSTITUTIONAL LAW ndash Leadership Code ndash Misconduct in office ndash Allowing integrity of theLeader to be called into question ndash Diminishing respect for integrity of the government ndashMisappropriation ndash Diversion of public funds originally allocated the North-Fly District Treasuryto payments an electoral office space when specific allocation had been made into the Leaderssalary ndash Whether such practice is appropriate under the Public Finance (Management) Act

LEADERSHIP CODE ndash Use of public money for personal benefit and that of his associates ndashIntentional application of public monies forming part of any funds under the control of Papua NewGuinea Government to any purpose to which it cannot be lawfully aapplied ndash Intention to divert fundsestablishedLEADERSHIP CODE ndash Clear case of misapplication of monies in cases of Double Deepingndash No clear evidence of whether the leader could apply such funds controlled by District Cases citedBonga v Sheehan [1997] PNGLR 452

Boral Gas (NSW) Pty Ltd V Magill (1995) 37 NSWLR 150 Byrne V Baker [1964] VR 443 Hon Andrew Kumbakor Member for Nuku Open Electorate (852003) N2362 In re James Mopio [1981] PNGLR 416 In Application by Nilkare [1998] PNGLR 472 In the matter of the Tribunal and appointed under S27 (7) of the Constitution and in the matter of HonPuka Temu MP (2006) N3099 Johnson V Miller [1937] HCA 77 (1937) 59 CLR 467 Mao Zeming ndashv- Justice Timothy Hinchliff (2006) N 2998 Nilkare [1997] PNGLR 472 Re Sigu logo [1988-89] PNGLR 384 Reference by the Public Prosectuor in the matter of Grand Chief Michael Somare MP (21-03-11)N4224

CounselMr P Kaluwin and Mr T Ai Assisting the Tribunal Mr I Molloy and Mr Asigau and Ms L David Assisting for the Leader

27th April 20151 LENALIA J - Chairman On this Reference there are three categories of the allegations on thisinquiry They consist of six counts of allegations made against the Hon Boka Kondra MP Member forNorth Fly Open and Member of Western Provincial Assembly Three of those allegations (1 3 and 5)are misappropriation charges while the other three (2 4 and 6) are Constitutional breaches

2 The misappropriation allegations relate to three various sums of monies allegedly misapplied by theleader from the District Services Improvement Program (DSIP) and the District Support Grant (DSG)funds Such monies were kept in the North Fly District Treasury Operating Account

3 It is alleged that the leader applied the sums of monies to his own benefit thereby breaching s13 (a)of the Organic Law on Duties and Responsibilities of Leadership and being a Leader breacheds27 of the PNG Constitution

CATEGORY 1

MIAPPLICATION OF K85 27600 FOR THE NORTH-FLY DISTRICT SERVICES IMPROVEMENTPRPGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSP) FUNDS HELD IN THE NORTH-FLY DISTRICT TRESUARY OPERATING ACCOUNT FOR RENTAL PAYMENTS FOR NORTH-FLYOPEN MEMBERS OFFICE IN KIUNGA WESTERN PROVINCE

ALLEGATION 1

THAT between December 2008 and December 2009 the Leader intentionally applied money formingpart of a fund under the control of Papua New Guinea namely the District Services ImprovementProgram (DSIP) and the District Support Grants to purposes for which it was not lawful

IN THAT The Leader used a total of K85 27600 from the District Services Improvement Program(DSIP) Funds and District Support Grant (DSG) held in the North-Fly District Treasury OperatingAccount to pay for the office rentals for the North-Fly Open Electorate in the North Fly District when hewas already specifically allocated K38 62300 per annum payable over 26 pay periods (fortnightlysalary) to pay for

(a) Employment of electoral staff (b) Electoral travel (c) Air travel between Port Moresby and the Members electorate (d) Electoral duty (e) Electoral office rental

This sum is not subject to an acquittal

THEREBY being guilty of misconduct in office under Section 13 (a) of the Organic Law on the Dutiesand Responsibilities of Leadership

ALLEGATION 2

THAT between December 2008 and December 2009 the Leader failed to carry out the obligationsimposed by Section 27(1) of the Constitution

BY conducting himself in his public life and in his association with other persons in such a way that he

(a) Demeaned his office as a member of the Parliament for North-Fly Open and Member of theWestern Provincial Assembly and

(b) Allowed his official and personal integrity to be called into question

AND FURTHERMORE the Leader failed to carry out the obligations imposed on him by Section 27 (2)of the Constitution

BY using his office for personal gain

IN THAT the Leader used a total of K85 27600 from the District Services Improvement Program(DSIP) Funds and the District Support Grant (DSG) held in the North-Fly District Treasury OperatingAccount to pay for the office rentals for the North-Fly Open Electorate the North-Fly District wasalready specifically allocated K38 62300 per annum payable over 26 pay periods (fortnightly salary) topay for



THEREBY being guilty of misconduct in office under Section 27 (5) (b) of the Constitution

CATEGORY 2MISAPPLICATION OF K134 96662 FROM THE NORTH-FLY DISTRICT SERVICES IMPROVEMENTPROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSP) HELD IN THE NORTH-FLYDISTRICT TREASURY OPERATING ACCOUNT FOR PAYMNET OF RENTALS FORACCOMMODATION IN PORT MORESBY

ALLEGATION 3

THAT between 2008 and 2010 the Leader intentionally applied a sum of K134 96662 forming part ofa fund under the control of Papua New Guinea to purposes for which it was not lawful

IN THAT whilst receiving housing allowance of K1 80000 in his fortnightly salary the Leader allowedthe use of K13496662 from the District Improvement Program (DSIP) and the District Support Grant(DSG) held in the North-Fly District Operating Account for rental payments for accommodation forhimself and his family in Port Moresby as outlined below-

For the years 2008 2009 and 2010 the Leader was being paid housing allowances equivalent to that ofa Governor when he received in

1 2008 a sum of K46800002 2009 a sum of K6260000 and in

1 2010 a sum of K4781400 (up to 22nd September 2010)

THEREBY being guilty of misconduct in office under Section 13(a) of the Organic Law on the Dutiesand Responsibilities of Leadership

ALLEGATION 4

THAT between 2008 and 2010 the Leader failed to carry out the obligations imposed by Section 27(1)of the Constitution


(a) Demeaned his office as a member of the Parliament for North-Fly Open and member of theWestern Provincial Assembly and (b) Allowed his official integrity and his personal integrity to be called into question

AND FURTHER the Leader failed to carry out the obligations imposed by Section 27(2) of theConstitution


IN THAT whilst receiving housing allowances of K1 80000 in his fortnightly salary the Leader allowedthe use of K134 96662 from the District Services Improvement Program (DSIP) and the DistrictSupport Grant (DSG) held in the North-Fly District Operating Account for rental payments foraccommodation for himself and his family in Port Moresby

THEREBY being guilty of misconduct in office under Section 27(5) (b) of the Constitution

CATEGORY 3

MISAPPLICATION OF K18 20000 FROM THE NORTH-FLY DISTRICT SERVICES IMPROVEMENTPROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSG) HELD IN THE NORTH-FLYDISTRICT TREASURY OPERATING ACCOUNT TO PAY OFF A PERSONAL DEBT

ALLEGATION 5

THAT between 2008 and 2010 the Leader intentionally applied money forming part of a fund under thecontrol of Papua New Guinea to purposes for which it was not lawful

IN THAT the Leader misapplied a total of K18 20000 from the District Services Improvement Program(DSIP) funds and the District Support Grant (DSG) to service a personal outstanding debt incurredduring the 2007 National Elections by hiring a motor vehicle from a company called Towi SmashRepairs outlined as follows-

The leader incurred debts during his election campaign in 2007 and did not pay this debt for almosttwo (2) yearsHe then allowed public funds from the DSIP and DSG to be used to pay off this personal debtThe Leader uses public funds from DSIP and DSG totaling K1820000 to settle his debtThe Leader breached the DSG and DSIP guidelines by authorizing funds to be used outside theseguidelines


ALLEGATION 6THAT between 2008 to 2009 the Leader failed to carry out the obligations imposed on him by Section27(1) of the Constitution


(a) Demeaned his office as a member of the Parliament for North-Fly Open Electorate and memberfor the Western Provincial Assembly and (b) Allowed his official integrity and his personal integrity to be called into question



IN THAT the Leader misapplied a total of K18 20000 from the DSIP funds and DSG to service hisoutstanding 2007 National Election debt which came about as a result of hiring a motor vehicle from acompany called Towi Smash Repairs during the 2007 National Election which are outlined as follows-

The Leader incurred debts during his election campaign in 2007 and did not pay this debt for almosttwo (2) yearsHe then allowed public finds from DSIP and DSG to be used to pay his personal debtThe Leader used public funds from DSIP and DSG totaling K18 20000 to settle his outstandingdebtThe Leader breached the DSG and DSIP guidelines by authorizing funds to be used outside theseguidelines


Brief of Categories of Allegations

4 There are three categories of allegations Category 1 allegation relates to the alleged misapplicationof K85 27600 from the North Fly District Services Improvement Program (DSIP) and the DistrictSupport Grant (DSG) Fund Such funds were held by the District Treasury Operating Account Theevidence which I will refer to later establishes that the amounts alleged in allegation 1 was used forrenting an office space for the Member for North Fly Open at Kiunga Western Province

5 Category 2 allegation is about monies applied between 2008 and 2010 It is alleged that the Leaderintentionally applied a sum of K134 96662 forming part of a fund under the control of Papua NewGuinea to purposes for which it was not lawful

6 It is alleged that whilst the Leader was receiving housing allowance of K1 80000 in his fortnightlysalary the Leader allowed the use of K134 96662 from the District Improvement Program (DSIP) andthe District Support Grant (DSG) held in the North-Fly District Operating Account for rental paymentsfor accommodations for himself and his family in Port Moresby

7 On Category 3 the Public Prosecutor alleges that between 2008 and 2010 the Leader intentionallyapplied money forming part of a fund under the control of Papua New Guinea to purposes for which itwas not lawful It is alleged that the Leader misapplied a total of K18 20000 from the District ServicesImprovement Program (DSIP) funds and the District Support Grant (DSG) to service a personaloutstanding debt incurred during the 2007 National Elections by hiring a motor vehicle from a companycalled Towi Smash Repairs

8 The Leader pleaded not guilty to all allegations necessitating a trial

Evidence against the Leader

9 Eight (8) witnesses were called by the lawyers assisting the Tribunal The evidence by Mr Richard

Pagen contains all the documents that were tendered by consent This witness is a lawyer byprofession and he is employed by the office of the Ombudsman Commission He holds the position ofDirector of Leadership Division

10 The Leader Hon Boka Kondra MP Member for North-Fly Open Electorate and Member of WesternProvincial Assembly and Minister for Tourism Arts amp Culture was elected into the Parliament 27th July2007 He has been a member of parliament since then to date

11 The evidence against the leader tendered through this witness show that three sums of monieswere misapplied by the leader On the first amount of K85 27600 the evidence reveals that between2008 and 2009 the leader applied this sum of money for purposes of employment of electoral staffwith some of it used for electoral travels or trips by air travel from the members electorate to PortMoresby and back to his electorate He used some of that money to pay for travelling on electoralduties and rented an office space at Kiunga town

12 Part of the evidence on the documents tendered which I will refer to later show that the aboveamount was taken from the District Services Improvement Program (DSIP) and the District SupportGrant funds These were funds held in the North-Fly District Treasury Operating Account Oralevidence by Mr Ronald Manise Dmonai the then District Administrator for North-Fly District shows thatthe Leader gave directions to him to make payments to Fly Mini Bakery and Ambiwid Holdings Limitedfor rental payments for the years 2008 2009 and part of 2010

13 There is further evidence that the leader received electoral allowances of various sums in 2009and part of 2010 he did not use any of these monies for renting the office space Mini Fly Bakery andAmbiwib Holdings Limited An amount of K76 50000 was spent from the public monies to be used topay for his electoral office rentals and renovations According to the evidence of Mr Richard Pagen inhis affidavit and that of Mr Dmonai this is contrary to the Public Finance Management Act For furtherhighlight on the evidence on amounts spent for renting of office space refer to the following documentsof the SRs

D3 page 33 SRs letter from OC of 18310 to Prov Administrator-Western Province

3D Members salary SRs page 90 for 2008 2009 amp 2010

3E Leaders pay-slip SRs page 93

D13 letter from OC of 20810 to National Parliament on leaders salary amp emoluments SRs page 170

D26 letter from OC of 29811to National Parliament on leaders matters SRs page 424

D24 KM1 page 402 SRs Stat Dec by Kaspar Martins of 26211

Attachments-A a letter from OC to Martinus on leadership matters SRs p 405)

-B KM2 reply by Martinus to OC of 26211 SRs 109

-C KM3 Cheque No012964 to Ambiwid Holding of 26211to for amount of K1 23817 for rental ofoffice space

-D KM4 copy of BSP Cheque No12859 paid to Ambiwid Holdings for maintenance of vehicle andreimbursement of personal monies and office rental bills SRs p 413 amounting to K24 00000

-E KM5Lease Contract for Sect 10 Lot 19 for the property in Kiunga see SRs p 415

-The total amount alleged in Allegation 1 was K85 27600

14 The total amount alleged in Allegation 1 was K85 27600 On record a total of over K76 00000was approved by the leader as he wrote to the District Administrator reminding him of variousoutstanding rental payments as the Leader being the Chairman of the District Services ImprovementProgram (DSIP) and the District Support Grant (DSG) had moved agendas in its committee meetingsfor funds to be approved for rental of office space

15 On category 2 allegations the evidence is that the Leader misapplied the sum of K134 96662between the years 2008 and 2010 for purposes of renting accommodation in Port Moresby for him andhis family and even his supporters It is alleged that between the above periods the leader wasalready receiving a fortnightly rental payment in his salary of K1 80000 the leader being the Chairmanof the North-Fly District Services Improvement Program (DSIP) and the District Support Grant (DSG)he allowed himself payments for his rental accommodation for the year 2008 a sum of K46 80000 Forthe years 2009 and 2010 he was paid sums of K62 60000 and K48 81400 for 2010 up until 22ndSeptember 2010 The above sums were taken out from the (DSIP) and (DSG) held in the North-FlyDistrict Treasury Operating Account (See Doc)

16 Summary of amount alleged in Allegation 3 The total rental payments for accommodation inMoresby amounted to K134 96662 The following documents copies of Bank Cheques GeneralExpenses and Requisitions for expenditures are evidence of the amount alleged in Allegation 3 For the years 2008 2009 and 2010 the Leader was being paid housing allowances equivalent to that ofa Governor when he received in



-Letter of demand dated 16709 from Ambiwid Holdings Ltd to the Leader for outstanding rentalpayments from January to June 2009 ndash K20 00000 see page 109 SRs

-Letter from Freelance Ltd to the leader dated 11109 for rental payment of K26 08333 for November2009 See p 115 of SRs

-BSP cheque No184 dated 24910 for the sum of K50 04998 payable to Palimb Investments Ltd seep 177 SRs

-BSP bank cheque No199 dated 81210 for the sum of K47 66668 payable to Palimb InvestmentsLtd see p 178 SRs

-BSP bank cheque No 237 for K12 76666 dated 16311 paid to Palimb Investments Ltd see p 184SRs

-BSP cheque No 13198 for K85 79996 dated 832010 payable to Palimb Investments Ltd see SRsp 185

-Total amount involved in was more than K134 96662 the amount alleged in Allegation 3

17 There are many more transactions which I do not wish to go into in detail and if all of them areadded up would be more than the amount alleged in Allegation 3

18 Evidence adduced in support of Allegation 5 show that between 2008 and 2010 the leaderintentionally misapplied a total of K18 20000 to settle his personal outstanding debt since 2007National General Election That the above amount was paid to a company referred to as Towi SmashRepairs in Port Moresby

19 In a letter dated 9th February 2009 written by the managing director of Towi Smash Repairs aninvoice for vehicle hire was attached to it for an amount of K18 20000 for thirteen (13) days in July ampfifteen (15) days in August 2007 In that letter the manger expressed concern that the amount hadbeen outstanding for a long time and no payments had been made (See documents M (i) pages 102and 103 of the SORs amp Richard Pagen Affidavit pages) Again to settle this debt money was paid fromthe (DSIP) and (DSG) held in the North-Fly District Treasury Operating Account The summary ofAllegation 5 shows

-Letter from manager of Towi Smash Repairs to North-Fly District Administrator date 9209 requestingpayment of K18 20000 for outstanding payment for hire vehicle see p 102 amp 103on SRs

-Requisition for expenditure form for above amount dated 18509 see p 106 on SRs

-General Expense form dated 18509 for K18 20000 paid to Towi Smash Repairs being foroutstanding vehicle hire bill see p 107 on SRs

-Total amount involved K18 20000

20 Two of the witnesses working with the National Parliament were called Mr Jack Bagita who iscurrently the Executive Officer to the Salaries and Remuneration Commission working in the House ofParliament and Mr Renagi Kila currently the Officer-in-Charge of Members of Parliament EmolumentsSection Parliamentary Services National Parliament gave evidence of Members of Parliamententitlements In case of Renagi Kila he was examined and cross-examined on the pay slips of theleader He was asked if the entitlements included vehicle allowances and accommodation and otherpublic utilities He said part of salaries components of the Members entitlements is included in the payslips (See pages 90 93 amp 111 of the Statement of Reasons (SR)

21 In case of Mr Jack Bagita his evidence was very brief His evidence substantiated the evidence byMr Kila that all members of the Parliament are paid vehicle and accommodation allowances and otherentitlements through their salaries (See Ex 36 his affidavit)

22 The former District Treasurer for North-Fly District Western Province Mr Karl Kanong gaveevidence that he was substantively appointed to that position on 14th January 2002 and since then hehad been the District Treasurer up to the time the leader was elected into Parliament in 2007 Hisevidence shows that the North-Fly District Treasury Office is responsible for all accounting functions ofthe six Local Level Governments in the District including the office of the leader and administration ofDistrict Support Grants and the District Services Improvement Program

23 He was referred to documents in pages 278 and 281 of the SRs the first document a letters fromthe OC to him requiring him to provide information on his role as the District Treasure of North FlyDistrict He was asked to confirm where sources of funds came from to fund rental payments for theperiod from 2007 to 2010 and how much money was spent on rental payments

24 In page 281 in the SRs is the witnesss reply to the above letter A total amount of K36 50000 waspaid for the leaders electoral office rental payments for 2008 Again for the year 2009 the JDPampBPCapproved an amount of K40 00000 for rental for the office space According to this witness heconfirmed what he said in his affidavit that the JDPampBPC did not approve payments for rentalaccommodations for the leader

25 Mr Donald Manise Dmonai was the Executive Officer of the North Fly District Administration He iscurrently the Deputy Provincial Administrator in charge of Policy amp Technical Services for the ProvincialAdministration in Western Province This witness confirmed in his oral testimony the information hegave to the Ombudsman Commission on a letter dated 25th February 2011 The reply was handwritten (See his affidavit Ex 00)

26 The affidavit of this witness contains about 90 documents in which Mr Dmonai compiled when theOmbudsman Commission asked him to provide information on how the monies were applied from theDistrict Treasury Office These documents are also included in the SRs I will refer to some of thosedocuments later when I do a summary of amounts involved in each allegation

27 Kaspar Martinus gave evidence that after the general election in 2007 he commenced working withthe North Fly Open Electorate Electoral Office and worked with the leader as an Executive Manager forthe Member of Parliament for the North Fly District His affidavit contains information on two paymentsdone from the North Fly District Treasury office There was a payment of K1 23817 Cheque No012964 dated 9th December 2009 for rental of an office space The contract for the lease agreementwas between the District Administration and Ambiwid Holdings Limited (See pages 402-415 SRs) 28 Another Cheque No 12859 dated 28th November 2009 for a sum of K24 00000 was paid to thesame company according to paragraph 9 (b) of Kaspar Martinus statutory declaration dated 26thFebruary 2011 he alleges that the amount was spent for payment of fuel maintenance of vehiclereimbursement of personal debts and some went for rental payment of the office space

29 Mr Jack Naiyep was the proprietor of PALIMB INVESTMENTS LIMTED and Freelance Limited Hegave brief evidence about writing a letter of invoice addressed to the Leader on which he advised theHon Kondra about rental payments for the months of July 2010 to December of that year The invoicequoted an amount of K85 79996 at K2 50000 per week This money was for rental payments for theproperty described as Unit 11 Section 42 Allotment 01 at Turua Avenue BOROKO National CapitalDistrict (See pages 136 186 187 amp 188 SRs)

30 Questions were asked in chief and cross-examination as to why the rental payment for the month ofFebruary and August 2010 was in excess of the other months The witness explained that excesscharges were for accommodation provided for supporters and relatives of the leader and for the use ofwater

31 He was asked to identify his signatures on other documents in the SRs in pages133 139 147172 177 178 179 180-181 185 186 188 236 238 240 247 249 251 255 The witness said hesigned all those invoices and correspondences

32 The witness was asked in cross-examination if he owns Freelance Limited and Palimb InvestmentsLimited The witness answered that he owns the two companies He was asked if he knew why theleader got sick when renting his property in Tokarara The witness said he knew about the leadergetting sick but did not know why he was sick He was asked if there was any contract between himand the leader for the rental The witness said there was none for the house in Tokarara but the leadermoved to another house in Boroko

33 John Geno was the last witness He is the Senior Investigator with the office of the OmbudsmanCommission He was called to give evidence on this inquiry as to why witness Damson Dwom did notcome to give evidence He said Damson was the electoral officer in the office of the Leader at the timehe was elected into the parliament until the investigations commenced on the current allegations Thewitness said Damson was summoned to give evidence but he did not turn up despite the fact that hehad travelled to Moresby for this inquiry

Brief of the Leaders Evidence

34 Three witnesses including the leader were called The leader himself denied all allegations In hisevidence the leader said in chief that although he knew of the arrangements for the expenditure offunds in his office he did not see anything tangible evidence of documents in relation to the agreementto rent the office space in Kiunga He was asked why and the witness said because the DistrictAdministrator was responsible for arranging the payments

35 In answering a series of questions in examination in chief the leader said the DA was responsiblefor paying the rental payments and he did not know of arrangement for how much money was beingpaid for monthly rental He said when he was in Moresby in 2008 to 2009 Mr Dmonai took him outfrom his old rented property at Tokarara to Boroko where the District paid for his rental unit

36 He denied seeing any lease agreement but admitted he moved from rented property at Tokarara toUnit 11 at Boroko He denied knowing Jack Naiyep and said he never met him before He was asked in

chief about signatures in Ex 39 and the one in page 464 in the SRs and asked if the two signaturesmatch each other The leader said the one on page 464 on the SRs is his signature but the one in thereferred exhibit is not his No hand-witting expert was called to prove whose signature the one wasdenied by the Leader

37 The leader denied seeing or knowing anything about rental invoices in page 186 and 187 in theSRs The invoice was a period of six months He also denied seeing or knowing rental Invoice No 166dated 182010 for the amount of K73 88330 He denied knowing the company referred to asFreelance Limited

38 In cross-examination the leader denied knowing when he moved into the new office space inKiunga Asked why did he not move to the office used by the former member for North Fly Open Hesaid he knew but when he moved in into it he was asked to move out Asked if he knew aboutpayments being made for the new office space The witness said he did not know

39 The leader however admitted in cross-examination that he knew he was being paid in his salaryaccommodation and vehicle allowances He contradicted himself by saying in chief that he did notknow Jack Naiyep but in cross-examination he said that he knew of Jack Naiyep

40 The last witness was Torum Mange This witness evidence relates to an invoice dated 922009compiled by him to the North Fly District Administrator A letter of demand was written by this witnessfrom his office Towi Smash Repairs requesting payment for an outstanding payment for the hire of aToyota Hiace 15 seater bus that was hired by the leader during the 2007 election campaigns MrMange denied knowing anything about the hired bus and said he only saw the document in 2014

Applicable Law amp Principles

41 Mr Molloy counsel representing the Leader submitted that on the issue of misappropriation theDistrict Administrator actually arranged for a lease premises because the Leader was in need of anoffice space from an entity known as Fly Mini Bakers and Ambiwid Holdings Limited On Category 1counsel submitted that this was not a case of misappropriation and the money was spent on rentalpremises

42 On Category 2 counsel argued that the charge is bad in law and that it should be dismissedCounsels argument is based on the grounds that the charge is not limited to a single breach as itcharges s27 (1) (a) and (b) of the Organic Law He says the allegation is in essence a duplication ofAllegation 1 He cited and quoted passages of cases such as Re Puka Temu (2006) N3099 and Re SirMichael Somare (2011) N4224 for the argument that such pleadings are unnecessary as theyoverload the case

43 On the remaining Allegations counsel argued that there is evidence that the cheques were signedby authorized persons like the District Administrator and Mr Dmonai approved and signed inflatedcheques for service providers

44 Mr Kaluwin replied by speaking to his written submission by referring to the evidence of the key

witnesses called during the hearing of these allegations He submitted that there is no duplicityCounsel referred to the case of Re Sigulogo [1988-89] 384 the Court in that cases said the chargesoverlap because they were similar in content The Supreme Court in the later case of Application byNilkare [1997] PNGLR 472 the Court said that s27 (2) deals with a particular conduct and s27 (5) is inrespect of his office or position with regard to the performance a leaders functions and that ismisconduct

45 I have considered counsels addresses on verdict The duties of this tribunal are prescribed bys28(1)(2) of the Constitution and s27(4) of the Organic Law on Duties and Responsibilities ofLeadership The tribunal does not sit as a court of law but its duty is to investigate and determinecases of alleged misconduct in office referred to it (See s28 (1) (9) of the Constitution)

46 It must make due inquiry into the matter or matters referred to it with regard to legal formalities anin strict compliance with the rules of evidence and pursuant to provisions of the Evidence Act and mayinform itself in such manner as it thinks proper subject to compliance with the principles of naturaljustice (See s27(4) of the OLDRL amp s59 of the Constitution)

47 The Constitution and the OLDRL do not clearly say who bears the burden of proof but the SupremeCourt case of re James Eki Mopio [1981] PNGLR 4156 it was decided that the standard of proof isabove the civil standard but close to the criminal standard So being a quasi judicial body the tribunalmust act judicially and in compliance with the principles of natural justice as prescribed by s59 of theConstitution Hon Andrew Kumbakor Member for Nuku Open Electorate (852003) N2362

48 The tribunals duty is thus to inquire or investigate and determine the truth or otherwise of theallegations that have been referred to it Bonga v Sheehan [1997] PNGLR 452 Having said that Inow briefly outline the applicable law

49 The Organic Law on Duties and Responsibilities of Leadership (OLDRL) provides that where aleader intentionally applies any money forming part of any fund under the control of Papua New GuineaGovernment is guilty of misconduct in office Section 13 of the above legislation states

13 Misappropriation of funds of Papua New Guinea(1) A person to whom this Law applies who ndash

(a) intentionally applies any money forming part of any fund under the control of Papua NewGuinea to any purpose to which it cannot be lawfully applied or (b) intentionally agrees to any such application of any such moneys is guilty of misconduct inoffice

50 Similarly Section 27 (1) ndash (5) of the Constitution says that Leaders to whom PART III Division 2on the Leadership Code applies have the duty to conduct fairly both in public and private and to avoiddemeaning their offices The above section states

Responsibilities of office(1) A person to whom this Division applies has a duty to conduct himself in such a way both in hispublic or official life and his private life and in his associations with other persons as notmdash

(a) to place himself in a position in which he has or could have a conflict of interests or might becompromised when discharging his public or official duties or(b) to demean his office or position or(c)to allow his public or official integrity or his personal integrity to be called into question or(d) toendanger or diminish respect for and confidence in the integrity of government in Papua New Guinea(2) In particular a person to whom this Division applies shall not use his office for personal gain orenter into any transaction or engage in any enterprise or activity that might be expected to give rise todoubt in the public mind as to whether he is carrying out or has carried out the duty imposed bySubsection (1)(3) It is the further duty of a person to whom this Division appliesmdash(a) to ensure as faras is within his lawful power that his spouse and children and any other persons for whom he isresponsible (whether morally legally or by usage) including nominees trustees and agents do notconduct themselves in a way that might be expected to give rise to doubt in the public mind as to hiscomplying with his duties under this section and(b) if necessary to publicly disassociate himself from any activity or enterprise of any of his associatesor of a person referred to in paragraph (a) that might be expected to give rise to such a doubt

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28(further provisions) may subject to this Division and to any Organic Law made for the purposes of thisDivision give directions either generally or in a particular case to ensure the attainment of the objectsof this section(5) A person to whom this Division applies whomdash(a) is convicted of an offence inrespect of his office or position or in relation to the performance of his functions or duties or(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligationsimposed by Subsections (1) (2) and (3)is guilty of misconduct in office

Summary of findings

51 As I find there is ample evidence to show that between December 2008 and December 2009 andpart of 2010 the Leader intentionally applied monies forming part of a fund under the control of PapuaNew Guinea by the North-Fly District Treasury office in the District Services Improvement Program(DSIP) and the District Support Grants to purposes for which it was not lawful

52 On Allegation 1 I find that the Leader used more than K85 27600 from the DSIP Funds and DSGheld in the North-Fly District Treasury Operating Account to pay for the office rentals for the North-FlyOpen Electorate in the North Fly District when he was already allocated an annual amount K38 62300payable over 26 pay periods each year through his fortnightly salary On this allegation he was doubledipping from the Governments money when he was already being paid a fortnightly amount of K180000 for employment of electoral staff electoral travel air travel between Port Moresby and theMembers electorate electoral duty travels and electoral office rental He is guilty of misconduct inOffice

53 On Allegation 3 it has been proven that the Leader intentionally applied a sum of K134 96662forming part of a fund under the control of Papua New Guinea to purposes for which it was not lawfulpay for rental accommodations in Port Moresby This was misconduct in office Again it is double-dipping from the Governments money under the control of the North-Fly District Treasury OperatingAccount

54 Allegation 5 involved an amount of K18 20000 It has been proven to the required standard ofprove that the Leader misapplied funds from the District Services Improvement Program (DSIP) fundsand the District Support Grant (DSG) to service a personal outstanding debt incurred during the 2007National Elections by hiring a motor vehicle from a company called Towi Smash Repairs I agree withMr Kaluwin that there is no duplicity as the Leader had been convicted under s27 (2) it follows failureto performing function or duties amounts to misconduct in office under s27 (5) (a) of the ConstitutionI make the following findings

55 Findings ndash Allegation 1 ndash Guilty Allegation 2 ndash Guilty Allegation 3 ndash Guilty Allegation 4 ndash Guilty Allegation 5 ndash Guilty Allegation 6 ndash Guilty

56 The findings of these allegations exhibit glaring misappropriation of public monies by the Leaderand his service providers I refer to a few examples of such dirty business On a letter dated 2ndNovember 2008 from the manager of Freelance Limited to the District Administrator on servicesprovided to the Leader three of the five services provided were

-preparation of financial statements for the last seven (7) years

-drafting of Business Proposal for the company

-advice provided on the operation of the company

57 A total amount charged for the above five services was K24 95000 (See p 225 of SRs) Theissue is whose company was Freelance Ltd engaged to prepare financial statements for when theLeader was only elected into office on 27th July 2007 and if he had a company this would have beentotally outside the official duty expenditures

58 A second example is found in pages 253 amp 255 in the SRs on rental invoices In the earlier pagethe invoice No 148 of 1st July 2010 included the months of July ndash December 2010 Weekly rentalswere K2 50000 For the months of July September to December monthly rental was K11 91666 ForAugust it was K26 21666 The total amount for the above period was K85 79996

59 It would seem like in page 255 in the SRs another Invoice No165 was made out for the sameperiod this time from August to December 2010 The total amount in the invoice was K73 88330 Inmy view that was a double payment for the same period Again for the month of August a sum of K2621666 was charged

60 I recommend that the Leader and his associates be criminally prosecuted for misappropriation andstealing from the public purse

1 I Kurei Senior Magistrate Member On this Leadership inquiry there are three categories of

allegations made against the Member for North Fly Hon Boka Kondra hereafter referred to as theLeader

2 In the three categories total of six (6) allegations were laid in that each category has twoallegations Allegations 1 3 and 5 are framed under S13 (a) OLDRL Whereas Allegations 24 and6 in the Public Prosecutors Reference and Constitutional Breaches framed pursuant s 27 (1)(2) ofthe Constitution

Summary of the Six (6) Allegations

1 I intend not to fully quote the said allegations however hereunder are the summaries of the sixallegations-

Category 1Misapplication of K8527600 from the North-Fly District Services Improvement Program (DSIP) andDistrict Support Grant (DSG) held in the North-Fly District Treasury Operating Account for rentalpayment for North-Fly Open Members Office in Kiunga Western Province

Allegation 1

That between December 2008 and December 2009 the Leadership intentionally applied DSIP andDSG funds to purposes for it was not lawful

In that the Leader used a total of K8527600 from DSIP and DSG held in North-Fly District TreasuryOperating Account to pay for office rentals for the North-Fly Open Electorate when he was alreadyspecifically allocated K3862800 per annum payable over 26 fortnights as salary for-

1 Employment of electoral staff2 Electoral travel

1 Air travel between Port Moresby and members electorate

1 Electoral duty2 Electoral office rental

The sum is not subject to an acquittal Thereby breach Section 13 (a) OLDRC

Allegation 2

That between December 2008 and December 2009 the Leader failed to carry out the obligationimposed by Section 27(1) of the Constitution in his associations with the other persons in such a waythat he-

1 Demeaned his office as a Leader2 Allowed his official and personal integrity to be called into question

1 And furthermore the Leader failed to carry out the obligations imposed by Section 27 (2) of the

Constitution

By using his office for personal gain In that the Leader used a total of K8527600 from DSIP Funds andDSG held in the District Treasury North-Fly District to pay of Electorate office rentals of whichK3862300 per annum was allocated and inbuilt into and payable over 26 fortnightly salary to pay for-

1 ndash2 ndash

1 ndash


Thereby breaching Section 27 (5) (6) of the Constitution for misconduct in office

Category 2Misapplication of K134 96662 from the North-fly District Services Improvement Program (DSIP) Fundsand District Support Grant (DSG) held in the North-Fly District Treasury Operating Account for paymentof rentals for accommodation in Port Moresby

Allegation 3

That between 2008 and 2010 the Leader intentionally applied a sum of K143 96662 forming part of afund under the Control of Papua New Guinea to purposes for which it was not lawful In that whilst receiving housing allowance of K180000 in his fortnightly salary the Leader allowed theuse of K13496662 from DSIP and the DSG held in the North-Fly District Operating Account for rentalpayments for accommodation for himself and his family in Port Moresby as outlined below-

For the year 2008 2009 and 2010 the Leader was being paid housing allowances equivalent to that ofa Governor when he received in


1 2010 a sum of K47 81400 (up to 22 September 2010)

Thereby misconduct in office pursuant to Section 13 (a) of the OLDRL

Allegation 4

That between 2008 and 2010 the Leader failed to carry out the obligations imposed by Section 27(1) ofthe Constitution By conducting himself in his public life and in his association with other persons in such a way that he-

1 Demeaned his office as the Leader2 Allowed his official and his personal integrity to be called into question

Furthermore the Leader failed to carry out the obligations imposed by Section 27 (2) of theConstitution By using his office for personal gain In that whilst receiving housing allowance for K1 80000 in hisfortnightly salary the Leader allowed the use of K134 96662 from DSIP and DSG held in the North-FlyDistrict Operating Account for rental payments for accommodation for himself and his family in PortMoresby Thereby breaching Section 27 (5) (b) of the Constitution for misconduct in office

Category 3Misapplication of K1830000 from the North-Fly District Services Improvement Program (DSIP) Fundsand District Support Grant (DSG) held in the North-Fly District Treasury Operating Account to pay off apersonal debt

Allegation 5

That between 2008 and 2010 the Leader intentionally applied money forming part of a fund undercontrol of Papua New Guinea to purposes for which it was not lawful In that the Leader misapplied atotal of K18 20000 from the DSIP funds the DSG to service a personal outstanding debt incurredduring the 2007 National Elections by hiring a motor vehicle from a company called Towi SmashRepairs and outlined as follows-

The Leader incurred debts during his election campaign in 2007 and did not pay these debts foralmost two (2) years

He then allowed public funds from DSIP and DSG to be used to pay off this personal debt

The Leader used public funds DSIP and DSG totaling K18 20000 to settle his outstanding debt

The leader breached the DSIP and DSG guidelines by authorizing funds to be used outside theseguidelines

Thereby being in breach of Section 13 (a) of the OLDRL for misconduct in office

Allegation 6

That between 2008 to 2009 the Leader failed to carry out the obligations imposed by Section 27 (1) ofthe Constitution By conducting himself in his public life and in his associations with other persons in such a way thathe-


And Further the Leader failed to carry out the obligations imposed by Section 27(2) of the Constitution By using his office for personal gainIn that the Leader misapplied a total of K18 20000 from DSIP funds and DSG to service his

outstanding 2007 National Election debt which came about as a result of hiring a motor vehicle from acompany called Towi Smash Repairs during the 2007 National Election which are outlined above in fullin Allegation

1 Thereby being in breach of Section 27 (5) (b) of the Constitution

Facts ndash Briefly

1 After the counting of votes in the 2007 General Elections concluded in North-Fly Open Dume Woocertified Mr Boka Kondra as the duly elected Member of the National Parliament by virtue ofSection 104 (1) of the Constitution Simultaneously by virtue of Section 10 (3) (a) of the Organic Lawon Province Government and Local-Level Governments (OLPG ampLLG)

2 Thus the newly elected Leader for the North-Fly Open took office as a Member for Parliament in the7th National Parliament as a first termer

Again after 2012 General Elections Mr Boka Kondra was victorious and to date is serving his secondterm in the 8th National Parliament

1 Prior to the Leader being elected to the National Parliament he was a trained teacher It can safelybe said he is educated as such he is fully aware of his duties and responsibilities as an electedLeader

2 It is during Mr Kondras first term as MP the above six allegations arose periods between 2008 and2010

3 I believe the investigations took place after a widely circulated letter dated 18th March 2010addressed to the Provincial Administrator and a copy forwarded to the Ombudsman Commission

4 The said letter is compiled as document 3 on pages 33 to 40 in the Statement of Reasons (SOR)The author is none other than the District Administrator at that time for North-Fly District Mr RoualM Dmonai The subject of the letter is Replacement of District Administrator ndash North-Fly District

Summary of Witness Evidence

Witnesses called by Counsel Assisting the Tribunal

1 Mr Richard Pagen the lead investigator a lawyer by profession now the Director LeadershipDivision within the Ombudsman Commission of Papua New Guinea Mr Pagen compiled theStatement of Reasons (SOR) his affidavit is tendered with consent Through this witness all thedocuments in SOR were tendered and marked as Exhibits Numbering from 1 right through to 33

2 Mr Pagen joined OC in 1999 till now is still the officer in the said institution From the conclusion ofhis evidence he tells of the induction course facilitated by the then office of Rural Development nowcurrently the Department of Rural Development and Implementation This was the course conductedby all stakeholders for the elected Leaders after 2007 General Elections Indeed OC did contributein the course for the benefit of elected Leaders

3 Mr Renagi Ila the Manager for Emoluments for Members of Parliament It is through this witnessrecords of Members Allowances documents show the Leaders pay slip and other relevantinformation on how the leaders allowances are inbuilt for travel Electoral Duty Staff payments

Office rentals and other items the leader has to pay 4 Mr Jack Bagita Executive Officer to the Salaries and Remuneration Commission Parliament House

Waigani NCD His role is to administer the affairs of Salaries and Remuneration Commission (SRC)that is determinations for Members of Parliament which sets out salaries and allowance for LeadersHis affidavit set out 2007 allowances and entitlement that an MP is entitled to as for North-Fly MPitem 17 shows his electoral allowance is K3862300 which is on page 65 of SRC Determinations of2007 which is a 78 page document attached to his witness Affidavit

5 Mr Karl Kanong the former District Treasurer North-Fly District WP based at Kiunga The rolesand responsibilities are many which are related to control supervise the operation of the Cash Officein the District This witness has identified documents in the SOR pages 278 281 283 285 287291 293 295 301 359 361 365 and many others These documents are letters Trust AccountTransactions Journal Entry and the list goes on

6 Mr Ronald Manise Dmonai now the Deputy Provincial Administrator WP Mr Dmonai was theformer District Administrator North-Fly District As the District Administrator for North fly District from2006 to 2010 and vacated the said office in 2012 He is responsible for the overall governmentservices rendered to the people of North-Fly including government fundings like signing of chequesas Section 32 of the Public Finance Management Act This witness has in-depth knowledge of mostif not all the documents compiled in the SOR The witness examined at great length by therespective counsels

7 Mr Kaspar Martinus now self employed was the former Executive Officer in the Office of theMember for Parliament for North-Fly from November 2007 to November 2010 This witness is one ofthe Directors of Fly Mini Bakery a subsidiary of an entity known as Ambiwid Holdings This entityrented out office space for the use by the Leader as the electoral Office of North-Fly Electorate

8 Mr Jack Naiyep self employed as the owner of Freelance Limited and Palimb Investment Ltd asManaging Director Palimb Investment Ltd rented out Unit 11 Section 42 Lot 01 Turua AvenueBoroko NCD to the MP for North-Fly for his and his familys use

9 Mr John Gem a Senior Investigator with OC was called to testify on a witness Bamson Dwomwho despite filing an affidavit and knowing of the proceedings failed to appear before thisLeadership Tribunal It is highly likely witness Bamson Dwom went into hiding

Witnesses called by Counsel for the Leader

1 Honourable Boka Kondra MP North-Fly and Minister for Culture and Tourism did not file anaffidavit he gave oral evidence and was examined at length by the learned counsels

2 Mr Torum Mange of Kaba Village Ialibu SHP Apart from the Leader this witness is a sole witnessfor the Leaders case Mr Mange was a co-owner of Towi Smash Repairs as per the StatutoryDeclaration which was produced in the proceedings He claims he came on his own accord to clearhis name about the K18 20000 Cheque paid to Towi Smash Repairs of which he has noknowledge

Evidence

Category 1

Misapplication of North-Fly DSIP and DSG of K85 27600 held at North-Fly District Treasury OperatingAccount for rental payment for North-Fly Open Members Office in Kiunga WP

Allegation 1

1 Soon after the Leader became the MP for North-Fly with Kaspar Martin as Electoral Officer officespace was found in the property owned by Fly-Mini Bakery which is subsidiary of Ambiwid HoldingsLtd

2 IPA Company Extract for Fly-Mini Bakery on page 41 of SOR shows Kaspar Martin as anAssociated Person Then the IPA Company Extracts for Ambiwid Holdings Ltd on page 87 of SORshows Kaspar Martins has one (1) Ordinary share with Ambiwid Holdings Ltd

3 According to Kaspar Martin it was in early 2009 Fly Mini Bakery rented out their office space for theLeader The letter dated 24th November 2008 signed on behalf of North-Fly MP (96 SOR) seekingapproval of advance of K2000000 from the District Administrator North-Fly District for the rentals

4 Requisition for Expenditure for K20 00000 being for advance payment was made on 01122008(p100 SOR) The General Expenses Form for K20 00000 was made on 01122008 for AmbiwidHoldings Ltd (P101 SOR) As for cheques payments copies of the cheques can be seen on pages358 for K1 23817 page 360 for K24 00000 page 362 for K24 77600 paged 364 for K24 000All pages are in the SOR

5 The trend as it seems from the relevant documents I have viewed in the SOR are that AmbiwidHoldings Ltd or Fly-Mini Bakery submit invoice with relevant documents attached to North-FlyDistrict Administrator who is also the Financial Delegate for Requisition for Expenditure Form ThenGeneral Expenses Form are raised and signed by the Financial Delegate From there thedocuments which are all known as financeacute forms are submitted to the District Treasury for chequesto be drawn for payments

6 The above process is followed to make payments for the Leaders electoral office in North-FlyDistrict It is evident from MPs salaries of 2008 2009 and 2010 on page 93 of SOR there is norecord for the Leader paying rent for the office space in his electorate from the in-built salary he wasreceiving on fortnightly basis

Category 2

Misapplication of K134 96662 from DSIP and DSG funds held at North Fly District Treasury OperatingAccount for payments of rentals for accommodation in Port Moresby

Allegation 3

1 The leaders inbuilt salary for housing allowance per fortnight is K1 80000 For the years 20082009 and 2010 the leader was being paid housing allowances equivalent to that of a Governor whenhe received for-

2008 an amount of K46800002009an amount of K62600002010 an amount of K47 81400 till 22nd September 2010

2 Whilst the Leader receiving the above housing allowance the Leader for his and his family isconvenience made arrangements with an entity known as Freelance Ltd for a rental of a property atTokarara Then for health reasons the arrangements was made by the District Administrator of NorthFly District the Leader moved to Section 42 Allotment 01 Turue Avenue Boroko The said propertyis owned by an entity known as Palimb Investment Ltd It is now established that both entitiesFreelance Ltd and Palimb Investment Ltd their Managing Director is MrJack Naiyep who owns thetwo entities

3 Even though the Leader denies any knowledge of signing any rental agreement for property atBoroko Jack Naiyep states the Leader did sign the rental agreement with him as landlord of theproperty

4 Freelance Ltd wrote to the Leader on 011109 for rental for the amount of K26 08333 TheRequisition for Expenditure Form was made for K20 00000 The General Expenses Form for K2000000 was made out Both forms can be viewed at pages 120 and 120 of SOR respectively

5 Palimb Investment Ltd sent an Invoice No 11 to the Leader in January 2010 (P133 SOR) TheRequisition for Expenditures for the amount of K11 91666 was made The General Expenses Formwas made for the amount of K11 91666 Both documents can be viewed on pages 134 and 135 ofSOR

6 Again this trend is followed by Freelances Ltd and later by Palimb Investment Ltd to recover rentaldues from the Leader

7 As it can be viewed in the documents now accepted as Exhibits in the SOR follow the sameprocess The invoices with attached relevant documents are forward by Palimb Investments to theNorth Fly District Administrator for processing of payments

8 The payment of the rentals made the record are as follows- 1 BSP Cheque No 184 for K5004998 paid to Palimb (p177SOR)2 BSP Cheque No 199 for K4766668 paid to Palimb (p178SOR)3 BSP Cheque No 237 for K1276666 paid to Palimb (p184SOR)4 BSP Cheque No 13198 for K8579996 paid to Palimb (p85SOR)5 BSP Cheque No 58 for K10125000 paid to Freelance (p237SOR)6 BSP Cheque No 149 for K2574998 paid to Palimb (p250 SOR)

Category 3

Servicing North Fly Members 2007 National General Elections debts

Allegation 5

1 The Leader is said to incur debts owing to Towi Smash Repairs during 2007 National Elections forhire of a motor vehicle the unpaid debt remained for two years at K18 20000

2 Towi Smash Repairs a letter was sent to the North Fly District Administrator requesting payment ofInvoice No North Fly 2007-10 (p102SOR) The Invoice itself sets out the hire days and the ratesper day totaling K18 20000 (p103SOR) The Requisition for Expenditure and the GeneralExpenses Form were raised and signed on the same date 180509 by the Financial Delegate MrRonald M Dmonai (pp106amp 107SOR)

37 It is interesting to note the letter from Towi Smash Repairs dated 09th

February sent to North Fly District Administrator upon receipt of the letter a hand written note wasrecorded and read as follows Mr Boka Kondra used this Bus during the election period in 2007 ndash ThisBus was not used by North Fly District Administration He used the Bus for his election campaign andduring counting period Refer to Hon Boka Kondra MP This is his own commitment during that periodI will briefly discuss later hereunder

38 My perusal of SOR documents and exhibits I could not find record or copy of cheque payments Butthe relevant financial documents were raised as such I can reasonably infer that amount of K1820000was paid to Towi Smash Repairs This is confirmed by Mr Toru Mange the sole witness for the Leaderwho came to clear his name in this proceeding

Submissions on Verdict

Counsel for the Leader-

39 Briefly the eleven pages submission touches on the element of intention of the Leader on the use ofDSIP and DSG funds also that such use was not permitted The submission is that the essentialelement has not been established

40 Same line of arguments is for both the rental payments for the office and the accommodationrentals in Port Moresby

41 Furthermore another line of argument advanced is that Mr Ronald M

Dmonai the then District Administrator for North Fly was relied on as he (DA) was the person inauthority was responsible for raising of the Financial Forms for payments that were paid out forElectoral Office family accommodation and the hired vehicles outstanding debts

42 As for the Constitutional breaches that Section 27(1)(2) of the Constitution issues ambiguity wereraised and as such the charges are bad in law based on Australian Case laws of Johnson v Miller[1937] HCA 77 (1937 59 CLR 467 Byrne v Baber (1964) VR 443 and Boral Gas (NSW) Pty Ltd ndashv-Magil (1995) 37 NSWLR 150 Indeed I have no opportunity to read them but I am sure there arebinding PNG cases laws which adequately addresses the issue raised by the learned counsel

43 The counsel for the Leader also raises the issue of duplication or duplicity on Allegations 1 andAllegation 2 Same line of argument is for the other Allegation Here rulings on Tribunal matter Re PukaTemu (2006) N3099 Re Sir Michael Somare (2011) N4224 were relied upon

Counsel Assisting Tribunal

44 In the 9 frac12 page submission The Counsel Assisting the Tribunal Mr Pondros Kaluwin the PublicProsecutor takes the Tribunal on the allegations 1 to 6 As set out in the Reference to which the Leaderdenied them all

45 It also highlights SRC Determination G007-17 the electoral allowance are to be used for

a) employing of electoral staff

b) electoral travel

c) air travel between Port Moresby and MPs electorate all electoral

duties

1 Electoral Office rental

46 It is strongly advanced by the counsel that the Leader knew of where the funds are coming from tooffset his debt pay office and accommodation rentals As the payments were not coming from theLeaders fortnightly salaries where allowances are in-built for his activities So obviously the Leader hasknowledge of the source the payments are coming from

47 On the issue of duplicity it is argued by the Counsel Assisting the Tribunal that there is no duplicityas stated in the Tribunal case of Re Sigulogo [1988- 89] PNGLR 384Also the case of in theApplication by Nilkare [1998]PNGLR 472 at 496 Kapi DCJ were quoted

48 The tribunal was finally invited to view the style of drafting of the Reference to that of others like inSir Puka Temus Reference

Relevant Laws

49 Like I expressed in Hon Ronny Knights Leadership Tribunal that is PNG Constitutional PlanningCommittee Report 1974 Chapter 3 The Leadership Code outlines quality of Leadership in the followingstatements The success of a nation we believe depends ultimately on its people and their leadersNo amounts of careful planning in government institutions or scientific disciplines will achieve liberationand fulfillment of the citizens of our country unless the leaders those who hold official positions ofpower authority or influence and have bold vision work hard and are resolutely dedicated to the serviceof their people

50 The above is the basis for the Organic Law on duties and Responsibilities of Leadership whichcame into operation on Independence day (16-09-1975) to implement Division 1112 (Leadership Code)of the Constitution

51 Part 111 Basic Principles of Government of the Constitution provides in Division ndash National Goalsand Directive Principles Section 26(1) (c) provides that all other Members of Parliament and (d)Member of Provincial Assembliesare persons to whom this law applies And in Section 27 of theConstitution sets out responsibilities of high office Leaders hold

52 The Organic Law on Duties and Responsibilities of Leadership (OLDRL) also provides for andprotects the integrity of leaders and the offices they hold This Section 5 and 6 of OLDRL state thatleaders must not use their offices for gain of personal benefits or personal interest

53 In making due inquiry referred to it the Tribunal shall apply strict rules of evidence and the relevantprovisions of Evidence Act Chapter 48 as long as principles of natural justice are complied withSection 27(4) OLDRL

Findings

54 As set out above there are six allegations categorized in 3 categories in that two allegations in onecategory That is to say the style of drafting of the Reference is that in Category 1 Allegation 1 is laidpursuant to Section 13(a) of OLDRL Whereas Allegation 2 is misconduct under Section 27(5) (b) of theConstitution Same trend is for Category 2 and Category 3 allegations

55 Allegations 13 and 5 come under Section 13(a) of OLDRC misconducts

Whereas Allegations 24 and 6 are under Section 27(5)(b) of the Constitution misconducts or breaches

56 The Tribunal had the benefits of pursuing the SOR hearing eight (8) witnesses called by CounselAssisting the Tribunal Also the Leader was extensively examined plus a sole witness called for theLeader

57 The law is well established on the issue of what is the standard of proof In Re James Mopio [1981]PNGLR 416 and followed in Hon Michael Nali MP N2378 Member for Mendi Open (2003) N2398 it isaccepted that the prosecution has the burden The Tribunal must be reasonably satisfied to the truth ofthat allegation

58 From the Joint District Planning and Budget Priority Committee Meeting Minutes No 0407 inwhich the Leader was the Chairman there is no agenda nor resolutions passed for the funding ofelectoral office or for the accommodation or even for the debt settlement There is indeed item 1 whichon the budgetary allocations the Leader requested 10 which is K40000000 from K4 million theNational Government allocated to North Fly District from the Supplementary Budget to fund variousproject with guidelines from the then office of Rural Development (p45-63 SOR)

59 The set guidelines are strictly for Education Health Law and Justice Improvement Program as wellas Water Improvement Program As for the 10 for MPs administrative costs of which he soughtapproval from the then office of Rural Development in his letter dated 23rd October 2007 (p43SOR) Ihave not viewed in the SOR any response from ORD I ask myself what is the 10 administrative costfor Would it be for rental of office and accommodation

60 The North Fly JDP amp BPC like elsewhere in Papua New Guinea is subject to strict guidelineoperations as set out by ORD It is the duty and responsibility of Mr Ronald M Dmonai as the CEOFinancial Delegate and the District Administration of the district to oversee the sole guidelines arecomplied with

61 As can be seen in the documents in the SOR and from Mr Dmonais answers in his examination aswitness as a Financial Delegate he has signed all the financial forms especially Finance Form 4 thatis the General Expenses form which is the last check and balance form before the District Treasury

draws up cheque payments for relevant services rendered to the district

62 Mr Kaspar Martin was also responsible for signing of some Requisition for Expenditures Formsknowing very well he has interest in Fly Mini Bakery and Ambiwid Holdings Ltd I ask myself would thisbe a systematic process in place to misapply government funds

63 Requests for payments by Freelance Ltd and Palimb Investment Ltd as can be seen in thedocuments in the SOR and from answers given by MrJack Naiyeb are by way of Rental Invoiceforwarded to either the Leader or to the North Fly District Administrator

64 As for the Leaders hire of vehicle debt from Towi Smash Repairs is by way of a letter and asInvoice

65 As the Counsel Assisting the Tribunal points out in his submission on page 6 from middle downthe Leader was not paying his rental from the housing allowances There is no denial or dispute theLeaders payslip shows he was not paying electoral office rentals nor the accommodation for him andhis family in Port Moresby

66 From the documents in the SOR and from the question put to the witnesses and their respectiveanswers it is reasonably satisfied that the rentals for the North Fly MP Electoral Office and for thesame Leaders accommodation in Port Moresby came from the DSIP and DSG funds the OperatingAccounts held at North Fly District Treasury in Kiunga Western Province

67 The cross examination of the Leader by the Counsel Assisting the Tribunal-

Q3 When elected as a Leader you came to know what entitlements you have

A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament

Q6 Did you attend the induction course by OC

A No because of busy schedule

68 Mr Richard Pagen towards the end of his Examination in Chief by Counsel Assisting the Tribunalfollowing questions were put to him-

Q Elected Leaders any induction course for them

A OC carries out awareness on the role of OC In every election year OC conducts induction afterReturn of Writs Induction training

Q Who is to attend

A It is intended for all MPs

Q In 2007 was induction conducted

A Yes both for returning and newly elected also in 2012 which Chief Secretary organized for allDepartments and Agencies We did one week training

Q Does it cover DSIP and DSG

A We did our induction and Officer of Rural Development does all those monetary related matter

69 There we have it Mr Pagen ascertains there was a induction course held for both returning andnewly elected leaders The Leader is honest enough to admit he did not attend the vital or veryimportant course or workshop early in his role as the Leader of his people of North Fly district By notattending the induction course in 2007 no doubt he has missed out of vital information on his new roleas Leader at the national level

70 Being an elected Leader as an MP in the National Parliament is an envied role not all candidateswill become MP Those that are elected to be Leaders have high expectations to perform at that levelThey are remunerated highly however are subject to SRC Determinations as shown in witness JackBagitas Affidavit and Attachment The elected Leaders are subject to public scrutiny as well as theOLDRL

71 The Counsel for the Leader in his submission as I summarize above advances element of intentionThe argument advanced is there is no evidence at all that he intentionally applied moneys from DSIPor the DSG to pay rents and other debt

72 That is all very well said however my views are in following bullet points-

The Leader in 2007 was a newly Elected LeaderThe Leader was to have attended the induction course which he did notThe Leader is aware of SRC DeterminationThe Leader in the JDP ampBPC had asked for 10 allocation of the K4 millionWhether the 10 was approved by ORD only the Leaders knowsWhether the 10 of K4 million which is K400 00000 was allocated into North Fly District forAdministration cost is only known by the Leader

73 For the Leaders to say he relied on the District Administrator or any other public servant is not goodenough reason for the payment of electoral office and accommodation rents Had the Leader attendedthe induction course he would be more aware of SCR Determination or the duties and responsibilitieswhich OC has conducted

74 I am reasonably satisfied Allegations 1 in Category One and Allegation 3 in Category 2 have beenproven and established to my satisfaction that the Leader had breached Allegations 1 and 3

75 I now turn to Category 3 Allegation 5 the Leader misapplied a total of K18 20000 from DSIP and DSG funds to service his outstanding 2007 National Electoral debts He issaid to hire a vehicle from a company known as Towi Smash Repairs

76 As I said in my paragraph 38 above I now will briefly discuss Allegation 5 When Mr RonaldMDmonai the District Administrator received a letter from Towi Smash Repairs he by hand writingnoted matter is for Hon Boka Kondra However after a wait from February 2009 to 18 May 2009relevant finance forms were raised that is Requisition for Expenditure and General Expenses Form thesaid amount is said to have been paid

77 In Re-examination of Mr Ronald M Dmonai by the Counsel Assisting the Tribunal relevant onesare as follows-

Q3 How do you know the Electoral Officers used the bus

1 By the Electoral Officers themselves The bus was hired for

election campaign The officers are campaign managers

Q4 Look at P102 notations who wrote it

1 I did

Q5 Why did you do that

A It was for the MPs commitment

Q6 Did you refer it to him

1 Yes copy was given to Electoral Officer

Q7 Was there a response

1 No I waited for 12 months

Q8 Why did you make the payments

1 I kept the voucher for 4 months he got elected he would pay from

SRC Determinations which he did not so I was forced by the owners of Towi Smash Repairs to pay

78 Looking at paragraph 77 above plus the relevant finance forms and the dates entered I see that theDistrict Administrator did not wait for 12 months or 4 months as he puts it The record shows it wasmere three months and he raised the said finance forms and submitted for payments As it is nowaccepted payments were made

79 For category 3 Allegations 5 and 6 the submission by the Counsel Assisting the Tribunal is in page9 paragraph 2 I quote This is a matter of who to believe To arrive at the findings the credibility of thewitnesses and their motives has to be considered The issue as put by the learned counsel is whetherthe service was provided to the Leader

80 For allegations in Category 3 those who would know are the Leader himself his associates and theowners of Towi Smash Repairs

81 Witness Toru Mange who is co-owner of Towi Smash Repairs The other co-owner is Wix TangiMr Mange has left the said entity hoping it was de-registered The submissions by the Counsel for theLeader relies on what Toru Mange has said in this enquiry

82 As for the submission by the Counsel Assisting the Tribunal we have been invited to ascertain whois to be believed On the same token the Tribunal is asked to consider the motives in particular witnessToru Mange

83 The Leader denies any knowledge of the vehicle hired Toru Mange has no knowledge and wants toclear his name on the K18 20000 moneys belonging to the Government which was misapplied

84 On the other hand Mr Dmonai District Administrator and Financial Delegate signed both thefinance forms and submitted for payment through the North Fly District Treasury

85 Who is to be believed now in paragraph 78 I have outlined what I heard and recorded in theTribunal hearing of Mr Ronald M Dmonais answers It can be seen he did not wait 12 months after theletter and invoice were received from Towi Smash Repairs There is now evidential record of MrDmonai taking up the matter with the Leader as per his notation on the letter But more importantly as aFinancial Delegate and CEO of North Fly District He is said to be forced by owners of the said entity todraw up payments

86 Observing Mr Dmonai in the proceedings and his answers to some of the questions I hold the viewas a chief public servant in the North Fly with his experience and high qualifications and being fromYangom Tribe in Kiunga I dont think he should feel any pressure from a Southern Highlander whowants payments from public funds It is Mr Dmonais duty to stand firm on what is right and lawful incarrying out his duties

87 In my analysis in Category 3 breaches I hold the view that I have certain reservation on how theNorth Fly District Administrator had gone ahead to address the claims and subsequent payments

88 For the above reasons I find it hard to believe or accept what is paid by Mr Ronald M Dmonai hehas not heard or taken up the matter with the Leaders Therefore I am not reasonably satisfied as tothe Leader being guilty of Category 3 Allegations 5 amp 6

Duplicity

1 In so far as the issue of duplicity is raised I will adopt what the Chairman outline in LT No2 of 2014

In the matter of Hon Ronny Bruce Knight MP Manus Open In that matter the view (Paragraph 124)is the style of drafting of the Reference is that Constitutional breaches are duplicity (See Grand ChiefSir Michael Somare (210314) N4224 and in the matter of Hon Puka Temu (24082006) (N3099)

2 For the above foregoing reasons I return the following ruling decision on verdict-

Allegation 1 ndash The Leader is found guilty


Allegation 3 - The Leader is found guilty

Allegation 4- The Leader is found guilty

Allegation 5 - The Leader is found not guilty


RAJOHNSON ndash Member On 18th April 2015 the Public Prosecutor presented the Reference relatingto allegations of misconduct in office by the leader Honorable Boka Kondra MP Member for North-FlyOpen Electorate The Reference had six (6) allegations falling into three categories By virtue of theoffice he held as Open Member for North-Fly he was at all material times a person to whom DivisionIII2 of the Constitution (Leadership Code) and the Organic Law on the Duties andResponsibilities of Leadership applied

2 Upon the Reference being presented to the Tribunal by the Public Prosecutor the Tribunal formallyread the Reference to the Leader The Leader denied all the allegations and was immediatelysuspended from duty with full pay by operation of the law as spelt out under S 28 of Organic Law onthe Duties and Responsibilities of Leadership (OLDRL)

3 There are two allegations under each Category Three of the allegations are framed under S13OLDRL and the other three are framed under S27 (1) of the Constitution

4 The Public Prosecutor called a number of witnesses who had sworn and filed affidavits and tendereddocuments by consent or through the witnesses and marked as Exhibits The Leader gave evidenceand called an additional witness A third witness was refused by the tribunal to give evidence for theLeader as he was sitting in Court during the entire inquiry

5 Richard Pagen a lawyer by profession is the Director Leadership Division of the OmbudsmanCommission He is aware of all the information in relation to this Leader that was investigated collatedand produced in the book of documents referred to as the Statement of Reasons (SOR) The SORforms the basis of the Prosecutions evidence The documents tendered through this witness is markedExh1-34 The other witnesses documents are also marked as Exhibits

6 I will deal with each Category of allegation and discuss the evidence followed by my findings Fromthe Leaders submissions counsel has raised the issue of duplicity and ambiguity which I will discussseparately

7 The first Category has two allegations and is as follows-

CATEGORY 1MISSAPPLICATION OF K85 27600 FROM THE NORTH-FLY DISTRICT SERVICESIMPROVEMENT PROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSG) HELD INTHE NORTH-FLY DISTRICT TREASURY OPERATING ACCOUNT FOR RENTAL PAYMENT FORNORTH-FLY OPEN MEMBERS OFFICE IN KIUNGA WESTERN PROVINCEALLEGATION 1THAT between December 2008 and December 2009 the Leader intentionally applied money formingpart of a fund under the control of Papua New Guinea namely the District Services ImprovementProgram (DSIP) Funds and District Support Grants to purposes for which it was not lawful

IN THAT the Leader used a total of K85 27600 from the District Services Improvement Program(DSIP) Funds and District Support Grants (DSG) held in the North-Fly District Treasury OperatingAccount to pay for the office rentals for the North-Fly Open Electorate in the North-Fly District when hewas already specifically allocated K38 62300 per annum payable over 26 pay periods (fortnightlysalary) to pay for-

1 employment of electoral staff2 electoral travel

1 air travel between Port Moresby and the members electorate

1 electoral duty2 electoral office rental



ALLEGATION 2THAT between December 2008 to December 2009 the Leader failed to carry out the obligationsimposed by section 27(1) of the Constitution


(a) demeaned his office as member of the Parliament for North ndashFly Open and member of the WesternProvincial Assembly and

(b) allowed his official integrity and his personal integrity to be called into question

AND FURTHERMORE the Leader failed to carry out the obligation imposed by Section 27(2) of theConstitution


IN THAT the Leader used a total of K85 27600 from the District Services Improvement Program

(DSIP) Funds and District Support Grant (DSG) held in the North Fly District Treasury OperatingAccount to pay for the office rentals for the North-Fly Open Electorate the North-Fly District was alreadyspecifically allocated K38 62300 per annum payable over 26 pay periods (fortnightly salary) to payfor-






8 The allegation under this head is for the rental of office space from Fly Mini Bakers for use by theLeader as the Electoral Office in Kiunga It is alleged that whilst the Leader was receiving fortnightlyallowance to cater for his electoral operations he used funds allocated to his electorate to pay for hiselectoral office rentals from the funds held in the North-Fly District operating Account under the DSIPand DSG

9 The Leader denies this allegation in that he has no direct dealing with the owners of the property andhe did not have any knowledge of the payments Counsel for the Leader submitted that the LeaseAgreement for this property was between Fly Mini Bakers Ambiwid Holdings and North-FlyAdministration and was signed by the District Administrator Mr Dmonai as lessee The Leader had noinvolvement with the rental payments and the requisitions raised for the payments were signed bypersons other than the Leader

10 It was also argued that there is no evidence that the Leader intentionally applied moneys from theDSIP and DSG funds for office rental and took no part in deciding from which account the rental shouldbe paid from The payment for the rental for the electoral office was lawful and properly sourced

11 The Public Prosecutor submitted that there is no dispute that the payments for the office rentals forthe North-Fly Open Electorate were paid from the DSIP and DSG funds held in the District TreasuryOperating Account The Leader knew that the Electoral Office is a rented property and he knew fromwhom it was rented and was aware of the rental arrangements and also knew where the funds weregoing to be drawn from

12 From the evidence that is before this tribunal and according to the SRC Determinations G007-17the electoral allowances are to be used for employment of electoral staff electoral travel air travelbetween Port Moresby and the Members electorate electoral duty and electoral office rental (P 2627 90 ndash 92 93 111 SOR)

13 On 24th October 2007 in the JDPampBPC meeting of North-Fly Electorate meeting the chairman whois the Leader requested for the 10 of the total allocation of K4 million for his administrative costswhich is K40000000 (P49 SOR)

14 In a letter dated 27 March 2009 the Leader wrote to the District Administrator (P104 SOR) which inpart reads-

I see this as an opportunity to start from somewhere therefore please process this amount as part ofan upfront payment for rental plus renovation exercise for the office your support in releasing K2000000 will be greatly appreciated15 On a letter dated 17 August 2009 from Ambiwid Holdings Limited to the Office of the North-Fly MPfor outstanding payments (P108 SOR) there is a handwritten note and I am of the view that it is also bythe Leader and he signed which says-

Acknowledged and my office will attend to its commitment as soon as we are healthy with financeHowever there could be other areas of funding we could seek to pay Advise them to be patient with meplease16 Evidence shows that the Leader was receiving his electoral allowance in this salary and yet usingfunds held in the District Operating Account to pay for the rentals of the Electoral office

17 His response to the Ombudsman Commission that he was paying rentals from his electoralallowance was misleading and false (p458 SOR) All the requisitions general expense forms andcheque payments for the electoral office rentals are drawn from funds under the DSIP or DSG There isno evidence that the Leader paid from his allowance

18 The Leader was also allocated 10 of K4 million for administrative costs and if that covered rentalsfor electoral office then that should have been brought to the attention of the National Parliament SalarySection The Leader failed to advise salaries of the arrangements for his electoral office rentals andcontinued to receive the allowance for that purpose through his salary on a fortnightly basis

19 This action on the part of the Leader amounts to double dipping In that he used a total of K8527600 from the DSIP and DSG funds held in the North-Fly District Treasury Operating account to payfor rentals whilst he was in receipt of electoral allowance of K38 62300

20 I find that the leader intentionally applied money forming part of a fund under the control of PapuaNew Guinea to a purpose to which it cannot be lawfully be applied

21 I also find the Leader has failed to carry out the obligations imposed upon him by Section 27(1) ofthe Constitution in that he has conducted himself in such a way in his public or official life in demeaningthe office and allowing his public and official integrity to be called into question

22 Furthermore I find that the Leader has failed to carry out his obligations imposed upon him bySection 27(2) of the Constitution by using his office for personal gain when he used K85 27600 whichwas Government funds to pay for the rental of his electoral office when he was receiving his electoralallowance on a fortnightly basis through his salary between 2008 and 2010

23 The next set of allegation relates to rentals for accommodation for the Leader and his family in PortMoresby

CATEGORY 2MISAPPLICATION OF K134 96662 FROM THE NORTH-FLY DISTRICT SERVICESIMPROVEMENT PROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSG) HELD INTHE NORTH-FLY DISTRICT TREASURY OPERATING ACCOUNT FOR PAYMENT OF RENTALSFOR ACCOMMODATION IN PORT MORESBYALLEGATION 3THAT between 2008 and 2010 the Leader intentionally applied a sum of K134 96662 forming part of afund under the control of Papua New Guinea to purposes for which it was not lawful

IN THAT whilst receiving housing allowance of K1 80000 in his fortnightly salary the Leader allowedthe use of K13496662 from the District Services Improvement Program (DSIP) and the DistrictSupport Grant (DSG) held in the North Fly District Operating Account for rental payments foraccommodation for himself and his family in Port Moresby as outlined below-


a) 2008 a sum of K46 80000 b) 2009 a sum of K62 60000 and in c) 2010 a sum of K47 81400 (up to 22 September 2010)


ALLEGATION 4THAT between 2008 and 2010 the Leader failed to carry out the obligations imposed by Section 27(1)of the Constitution


a) demeaned his office as member of the Parliament for the North-Fly Open and member of theWestern Provincial Assembly and

b) allowed his official integrity and his personal integrity to be called into question

AND FURTHERMORE the Leader failed to carry out the obligations imposed by Section 27(2) of theConstitution


IN THAT whilst receiving housing allowance of K1 80000 in his fortnightly salary the Leader allowedthe used of K134 96662 from the District Services Improvement Program (DSIP) and the DistrictSupport Grant (DSG) held in the North-Fly District Operating Account for rental payments foraccommodation for himself and his family in Port Moresby THEREBY being guilty of misconduct in office under Section 27(5)(b) of the Constitution

24 The same arguments under the first Category are advanced here That the Leader had noinvolvement with the rental payments and the requisitions raised for the payments were signed bypersons other than the Leader

25 Further that the District Administrator Mr Dmonai arranged for the Boroko accommodation and wasthe one who was in receipt of all the rental invoices and signed the requisitions and approved thepayments The Leader had no involvement in all these therefore the tribunal could not be satisfied thatthe Leader intentionally applied sums of money from the DSIP and DSG funds for the accommodationrentals when the Leader did not receive the invoices

26 Jack Naiyeps evidence is that he is the owner of the property that the Leader initially rented atTokarara and later moved to yet another of his property at Boroko with his family after they fell ill andthe Leader contracted typhoid They then entered into a lease agreement between himself and theNorth-Fly District Administration which agreement was signed by him and the Leader

27 The Leader disputes the ownership of the property at Tokarara to be owned by somebody else Healso denies signing the Lease Agreement for the accommodation at Boroko

28 There is no dispute that the Leader was not paying his rental from the housing allowance he wasreceiving fortnightly However he denies any knowledge of the rentals being paid from the DSIP andDSG funds and that he did not know how the rentals were being paid

29 Jack Naiyep said he knows the Leader personally as he was a resident of Kiunga sometime backSo he rented to the Leader the house at Tokarara and later at Boroko when the Leader came to visithim in his office with a medical report from the doctor pertaining to his health condition He said why hewould lie against the Leader whom he knows well and the Lease agreement was signed between thetwo of them

30 Whilst it is noted that the Unit number on the agreement is wrong or is a mistake there is nodispute that the Leader was living in an accommodation owned by Jack Naiyep at Boroko I perceivethe mistake as a typographical one and was corrected by Jack Naiyep in his oral evidence

31 The Leader was living in a rented property at Boroko he was not paying rentals from his housingallowance that he was receiving in his regular salary and for him to say he did not know where themoney was coming from to pay the rentals is incredible The property he was renting is a real estaterental property and there must be a lease agreement in place Rentals must be paid to continue tooccupy the property because non payments of rentals have consequential effects

32 The District Administrator is the executive officer of the Joint District Planning ampBudget PriorityCommittee (JDPampBPC) of which the Leader is the chairman As head of the public service in the districthe has a duty to serve the people and there is no question that what he did in finding an alternativeaccommodation for the Leader as the political head of the District and facilitating the requisitions forpayments was within his duties and responsibilities as a financial delegate

33 Evidence from Richard Pagen is that elected Leaders of Parliament go through an orientation

program at the beginning of each election year Ombudsman Commission is part of that program and itruns a Leadership Summit for the leaders The Leader is aware of the SRC Determinations and familiarwith the allowances under the Determinations

34 I find the Leader knowingly was receiving the housing allowance and whilst benefitting from it waswell aware of the rentals being paid by the District Administration from funds held in the North-FlyDistrict Operating Account under the DSIP and DSG funds This also amounts to double dipping bythe Leader

35 The allegations 5 and 6 are as follows-

CATEGORY 3MISAPPLICATION OF K1820000 FROM THE NORTH-FLY DISTRICT SERVICES IMPROVEMENTPROGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSG) HELD IN THE NORTH-FLYDISTRICT TREASURY OPERATING ACCOUNT TO PAY OFF A PERSONAL DEBT ALLEGATION 5


IN THAT the Leader misapplied a total of K18 20000 from the District Services Improvement Program(DSIP) funds and the District Support Grant (DSG) to service a personal debt incurred during the 2007National Elections by hiring a motor vehicle from a company called Towi Smash Repairs and outlinedas follows-

the Leader incurred debts during his election campaign in 2007 and did not pay this debt for almosttwo (2) years he then allowed public funds from the DSIP and DSG to be used to pay off this personal debt the Leader used public funds from DSIP and DSG totaling K1820000 to settle his outstanding debt the Leader breached the DSG and DSIP guidelines by authorizing funds to be used outside theseguidelines


ALLEGATION 6THAT between 2008 to 2009 the Leader failed to carry out the obligation imposed by Section 27(1) ofthe Constitution






IN THAT the Leader misapplied a total of K1800000 from the DSIP funds and DSG to service hisoutstanding 2007 National Election debt which came about as a result of hiring a motor vehicle from acompany called Towi Smash Repairs during the 2007 National elections which are outlined as follows-



36 This allegation relates to an amount of K18 20000 for the hire of a bus from Towi Smash Repairsalleged to have been used by the Leader during the 2007 National Elections It is alleged that thiscommitment was made prior to the Leader being elected into Parliament and as such was a personaldebt that he should have settled and not from Government funds held in the North-Fly DistrictOperating Account

37 The Leader denies any engagement with Towi Smash Repairs at all and is not aware of any suchhire of a vehicle The Leader called Torum Mange who was a partner of Towi Smash Repairs at thetime who gave evidence that he was in court to clear his name Further that he is not aware of suchclaims being submitted and that Towi Smash Repairs did not hire a vehicle out to the Leader

38 The evidence from the Mr Dmonai District Administrator is that he received a letter dated 9February 2009 from Towi Smash Repairs and an invoice to settle outstanding bills The DistrictAdministrator being aware of the hire by the Leader writes on the letter and signs it (P102 103 SOR) Itsays-

Mr Boka Kondra used this bus during the election period in 2007 The bus was not used by North-FlyAdministration He used the bus for his election campaign and counting period This is his owncommitment during the period (Signed by Ronald Dmonai)

39 In considering all that is before the tribunal and respective counsels submission I am more swayedtowards the evidence of counsel assisting the tribunal and accept their witness version as beingcredible Mr Dmonai said he was under pressure from the service provider as well as from the office ofthe Open Member to settle When asked in re-examination why he made the payments (hire of bus) hisanswer was my wife and children are important If I did not sign I will get fired as I was suspendedtwice

40 Counsel assisting the tribunal invited the tribunal to consider the demeanor of the witnesses andespecially the evidence of Torum Mange It was submitted that the letter (P 102 SOR) is by TorumMange and he signed it He denied writing that letter and the signature I wish to quote something onthe letter I find interesting and I find that this witness is unreliable It states-

I used to operate a Panel Repair business in Tabubil at Min Street but left and now based in PortMoresby My bus is still in Tabubil with relatives41 The process is that the invoice is provided by the service provider and the clerks raise theRequisition for Expenditure and the General Expense forms (FF3 amp FF4) All these documents areforwarded to the financial delegate in this case Ronald Dmonai who approves the vouchers which isforwarded to the District Treasury for printing of the cheques The debt for the hire of the bus by theLeader followed the same process and was settled from the funds held in the District TreasuryOperating Account 42 I find the Leader to have breached S27 (1) of the Constitution in failing to carry out the obligationsimposed upon him by conducting himself in his public life and in his association with other persons insuch a way that he demeaned his office as Member of Parliament for North-Fly Open and furtherallowed his official integrity to be called into question

43 I also find the Leader failed to carry out the obligations imposed by S27(2) of the Constitution byusing his office for his personal gain when he misapplied K1820000 from the DSIP and DSG funds tosettle a personal debt

44 Apart from the allegations contained in this Reference which has been discussed above I amgravely concerned about the huge amounts of monies drawn from the District Operating Account Theinvoices submitted for services rendered have been inflated in the cheques drawn I am of the opinionthat persons within the public service certain staff in the Leaders electoral office and some serviceproviders have knowledge of these and have conspired in stealing from public funds and should beinvestigated and criminally charged for misappropriation Whilst the Government Policy on PublicPrivate Partnership is good and meant to promote service delivery to the people the private componentis being used also as a medium for the wrong reasons ie diverting funds (P124 136 304 319- 322355) Duplicity and Ambiguity

45 It will be amiss for me not to discuss the issue of duplicity and ambiguity which has been raised andsubmissions made by counsels Counsel for the Leader argued that S27 (1) (a) (b) contains twooffences It is fundamental and a matter of natural justice that a person charged should know preciselywhat the charge is and the charge should unambiguously set out all the elements of the breachincluding precise acts or omissions He referred to the case of Johnson V Miller [1937] HCA 77(1937) 59 CLR 467 Byrne V Baker [1964] VR 443 Boral Gas (NSW) Pty Ltd V Magill (1995) 37NSWLR 150 It was argued that the charge is bad in law and that it be dismissed

46 Public Prosecutor submitted that there is no duplicity in the Reference He invited the tribunal torefer to the style of drafting of the reference in Nali Lelang and compare with that of Temus case andthe reasons given by the tribunal It was argued that this reference is simple and follows the style

suggested in Temus case

47 He referred to the case of Re Sigulogo [1988-89] PNGLR 384 The allegations were framed underS5 and 11 of the OLDRL and S27 of the Constitution for the same conduct and for which he wasconvicted The tribunal said-

The Public Prosecutor in his zeal has proffered four charges against Mr Sigulogo arising out of thisone letter The charges overlap in that they are very similar in content48 In the Application by Nilkare [1997] PNGLR 472 at 496 Kapi DCJ said-

Section 27(2) deals with a particular conduct namely use of office for personal gain and it is to be readtogether with subsection (1)I have already stated that where a leader is convicted of an offence inrespect of his office or position in relation to the performance of his functions that is misconduct49 The same issues have been raised in other tribunals and the views differ The arguments advancedby counsels are valid legal issues given the differing views and I believe tribunals will continue the trenduntil such time this issue of duplicity in the drafting of the reference under S27 (1) (2) of theConstitution is determined by the Supreme Court

50 In this tribunal I am satisfied that the Leader understood the allegations at the outset in order tohave taken the plea and denied all the six (6) allegations He is an educated person intelligent and ateacher by profession I accept the submission by counsel assisting the tribunal in that there is noduplicity in the framing of the allegations and are unambiguous They are overlapping

51 In conclusion Leadership Code and the Leadership Tribunal is unique only to PNG The drafting ofthe allegation or charge in a reference is not the same as an indictment in a criminal case It requiresspecial skills to draft and in ensuring the elements of the charge is captured In essence it must beunderstood in order for a plea to be entered In this case I am of the view that the Leader understoodthe allegations to have taken the plea

SUMMARY OF FINDINGS ALLEGATION 1- GUILTY (S13(a) OLDRL) ALLEGATION 2- GUILTY (S27(1) Constitution) ALLEGATION 3- GUILTY (S13(a) OLDRL) ALLEGATION 4- GUILTY (S27(1) Constitution) ALLEGATION 5- GUILTY (S13(a) OLDRL) ALLEGATION 6- GUILTY (S27(2) Constitution)

-------------------________________________________________________________ The Public Prosecutor Lawyer Assisting the Tribunal Young amp Williams Lawyers Lawyer for the Leader

Boral Gas (NSW) Pty Ltd V Magill (1995) 37 NSWLR 150 Byrne V Baker [1964] VR 443 Hon Andrew Kumbakor Member for Nuku Open Electorate (852003) N2362 In re James Mopio [1981] PNGLR 416 In Application by Nilkare [1998] PNGLR 472 In the matter of the Tribunal and appointed under S27 (7) of the Constitution and in the matter of HonPuka Temu MP (2006) N3099 Johnson V Miller [1937] HCA 77 (1937) 59 CLR 467 Mao Zeming ndashv- Justice Timothy Hinchliff (2006) N 2998 Nilkare [1997] PNGLR 472 Re Sigu logo [1988-89] PNGLR 384 Reference by the Public Prosectuor in the matter of Grand Chief Michael Somare MP (21-03-11)N4224

CounselMr P Kaluwin and Mr T Ai Assisting the Tribunal Mr I Molloy and Mr Asigau and Ms L David Assisting for the Leader

27th April 20151 LENALIA J - Chairman On this Reference there are three categories of the allegations on thisinquiry They consist of six counts of allegations made against the Hon Boka Kondra MP Member forNorth Fly Open and Member of Western Provincial Assembly Three of those allegations (1 3 and 5)are misappropriation charges while the other three (2 4 and 6) are Constitutional breaches

2 The misappropriation allegations relate to three various sums of monies allegedly misapplied by theleader from the District Services Improvement Program (DSIP) and the District Support Grant (DSG)funds Such monies were kept in the North Fly District Treasury Operating Account

3 It is alleged that the leader applied the sums of monies to his own benefit thereby breaching s13 (a)of the Organic Law on Duties and Responsibilities of Leadership and being a Leader breacheds27 of the PNG Constitution

CATEGORY 1

MIAPPLICATION OF K85 27600 FOR THE NORTH-FLY DISTRICT SERVICES IMPROVEMENTPRPGRAM (DSIP) FUNDS AND DISTRICT SUPPORT GRANT (DSP) FUNDS HELD IN THE NORTH-FLY DISTRICT TRESUARY OPERATING ACCOUNT FOR RENTAL PAYMENTS FOR NORTH-FLYOPEN MEMBERS OFFICE IN KIUNGA WESTERN PROVINCE

ALLEGATION 1

THAT between December 2008 and December 2009 the Leader intentionally applied money formingpart of a fund under the control of Papua New Guinea namely the District Services ImprovementProgram (DSIP) and the District Support Grants to purposes for which it was not lawful





ALLEGATION 2












ALLEGATION 3







ALLEGATION 4








CATEGORY 3


ALLEGATION 5
































































































Summary of findings




















Allegation 1







Allegation 2




Constitution


1 ndash2 ndash

1 ndash




Allegation 3






Allegation 4





Allegation 5







Allegation 6






Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity



















































































































ALLEGATION 2












ALLEGATION 3







ALLEGATION 4








CATEGORY 3


ALLEGATION 5
































































































Summary of findings




















Allegation 1







Allegation 2




Constitution


1 ndash2 ndash

1 ndash




Allegation 3






Allegation 4





Allegation 5







Allegation 6






Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity


















































































































ALLEGATION 3







ALLEGATION 4








CATEGORY 3


ALLEGATION 5
































































































Summary of findings




















Allegation 1







Allegation 2




Constitution


1 ndash2 ndash

1 ndash




Allegation 3






Allegation 4





Allegation 5







Allegation 6






Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity

















































































































CATEGORY 3


ALLEGATION 5
































































































Summary of findings




















Allegation 1







Allegation 2




Constitution


1 ndash2 ndash

1 ndash




Allegation 3






Allegation 4





Allegation 5







Allegation 6






Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity






































































































































































































Summary of findings




















Allegation 1







Allegation 2




Constitution


1 ndash2 ndash

1 ndash




Allegation 3






Allegation 4





Allegation 5







Allegation 6






Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity































































































































Allegation 1







Allegation 2




Constitution


1 ndash2 ndash

1 ndash




Allegation 3






Allegation 4





Allegation 5







Allegation 6






Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity















































































































Constitution


1 ndash2 ndash

1 ndash




Allegation 3






Allegation 4





Allegation 5







Allegation 6






Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity

















































































































Allegation 5







Allegation 6






Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity

















































































































Facts ndash Briefly























Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity

























































































































Evidence

Category 1


Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity
















































































































Allegation 1







Category 2


Allegation 3










Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity






















































































































Category 3


Allegation 5


















b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity






























































































































b) electoral travel


duties





Relevant Laws






Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity
















































































































Findings


















A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity























































































































A Yes

Q4 How did you know

A By the SRC

Q5 Who gave you SRC

A Parliament






Q Who is to attend




















1 I did





















Duplicity
















































































































Q Who is to attend




















1 I did





















Duplicity























































































































1 I did





















Duplicity

























































































































Duplicity















































































































kondra, in re [2015] pglt 2; n6232(lt) (27 april 2015)

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