SUPREME COURT HEARS PAUL TIENSTENS APPEALS /////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////// Source: Post Courier A THREE-MAN Supreme Court yesterday heard the substantive appeal by convicted prisoner Paul Tiensten against his conviction and sentence. Tiensten, who was national planning minister then and Pomio MP, was convicted and jailed for nine years early this year on one count of misappropriation involving K10 million. Yesterday, his lawyer Greg Sheppard made submissions arguing that the footnote by his client to pay K10 million to Travel Air Limited, owned by East New Britain businessman Eremas Wartoto, was not a direction and could not amount to the charge of dishonest application of the money. He said it would be rather a recommendation, request or a consent from the political head for section 32 officers, in that case, the Acting Secretary for National Planning, who as the departmental head, has the financial powers to consider and make such payments, which they did. He argued his client was wrongly charged with dishonest application of funds he did not apply. The funds were applied by officers in the National Planning, he said, adding that they should be held accountable and not Tiensten. Mr Sheppard maintained that a direction by law must be binding on someone in authority which his client was not in authority as he was not in financial authority to make a direction. He further put before Justice Allen David, Justice Don Sawong and Justice Stephen Kassman that it was a misconception to think that ministers can direct section 32 officers or secretaries of departments to release funding as they (ministers) have no financial authority or powers to do so except the department secretaries who are the section 32 officers. /////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////// Post Analysis On 14 April I posted an article WHAT HAPPENS IF PAUL TIENSTEN APPEALS THE COURTS DECISION? The article provided an in depth view and analysis of Tienstens conviction explained the process of appeal. It also provided possible arguments he could rely on if he decided to appeal (challenge) his criminal conviction. The following are extracts from that article that may better explain the issues raised in his Supreme Court appeal. It was surprising enough Tienstens legal team have relied on the same grounds. If Tienstens appeal to have his conviction quashed (overturned) I suspect he will focus his arguments on the element of dishonestly and control. Misappropriation under the Criminal Code states: A person who dishonestly applies to his own use or to the use of another person– (a) property belonging to another; or (b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person, is guilty of the crime of misappropriation of property. In this case the elements (key parts) of misappropriation that must be proven are: 1) dishonestly applied 2) property (which includes money) 3) belonging to another 4) to himself or the use of another person 5) that was in his possession, trust, control or direction Applied in this case: Tiensten (1) dishonestly applied (3) to the use of Eremas Waroto, Travel Air (2) K10m of public money (4) belonging to the people of PNG (5) in Tienstens control or subject to his direction as the Minister of National Planning. The elements of the offence are where the technicalities of law lie. To sustain a charge every element must be proven beyond doubt otherwise the charge will fail or be overturned in the Supreme Court. This explains where a person gets off on a technicality when one of the elements are not proven. Tiensten may contest the trial judge erred in law when he relied on the evidence that failed to prove the element of dishonestly applied On the basis the prosecution failed to prove beyond reasonable doubt that he knowingly dishonestly applied the funds. Proof of this is that it was never proven he personally benefited from the K10m, so how could he have dishonestly applied it. The evidence only proves he irregularly or improperly applied the funds. The Prosecution who will also be allowed to argue against his appeal in the Supreme Court will state that there is sufficient evidence Tiensten as Minister of National Planning breached strict department and finance guidelines to ensure his close friend was given K10m he was never entitled to. This was not by mistake but by design, knowing very well such guidelines were put in place to ensure such dishonest practices were prevented. Testimony (witness gave evidence in court) given by Department Secretary that he advised Tiensten to apply such funds to Travel Air would be improper. But Tiensten still directed him to make the payment. The second element of offence he may contest is control or direction. He may argue that he was never in the control of the funds. Public Finance Management Act Section 3 Ministers are only responsible for among other things: the supervision of the finances of the State so as to ensure that a full accounting is made to the Parliament of all transactions involving public moneys on behalf of the National Government. The Act states the Department Head (Secretary) is in fact responsible for financial management and has control and direction of all matters relating to the management of the financial affairs of the Department. Subject to specific directions given to him by the Minister. Tiensten may argue technically it was the Department Secretary that dishonestly applied the funds and not him. Department funds are not under his control or direction he never actually signed, saw or gave the cheque of K10m to Travel Air so how could he have had control or direction of it. The prosecution may argue the Act says the funds were under the control and direction of the Secretary but still subject to the Minister. Supreme Court will review the evidence and the decision process and legal principles the National Court relied on to find Tiensten guilty of Misappropriation. If it is satisfied the decision was correct it will uphold the National Court ruling and dismiss/refuse the appeal. It will be extremely difficult for Tiensten to appeal the decision after the indisputable evidence provided by his own written footnote and testimony (oral evidence) from the Department staff supporting he knowingly dishonestly applied the funds when advised not to and that it was in breach of department financial practices. The fact funds were given to his close friend it will make it difficult to argue is was a genuine mistake to breach such practices. Given the current political climate and public outcry focused on corruption in my opinion I cant see Tiensten winning his appeal. Until the Supreme Court hands down its decision Tiensten remains a Member of Parliament. If his conviction is upheld he will be disqualified from remaining an MP and removed from office causing a by-election for Pomio Open Seat.
Posted on: Thu, 30 Oct 2014 23:31:58 +0000
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