By PNG Echo.
A unanimous decision by a three-man bench of the Supreme Court (Gavara-Nanu, Sawong and Higgins) upheld the appeal by Jimmy Maladina against his two convictions: conspiring to defraud and misappropriation in the National Provident Fund matter (NPF) that reaches back almost two decades.
it’s taken a while to established that Jimmy Maladina is innocent – but he always has been.
Maladina’s conviction was based on conjecture and misdirection and was a clear case where justice was miscarried according to reviewing Judge Gavara-Nanu.
It is all about more of that ‘trite law’ that I wrote about in my previous article on the judicial decision that quashed Damaru’s suspension.
This time, the law that convicting judge, Deputy Chief Justice (DCJ) Gibbs Salika failed to understand (according to his fellow judges) thus allowing him to bring down a guilty finding in the Maladina case, was the fundamental paradigm that western law is built on – the presumption of innocence and the onus of the prosecution to prove guilt beyond a reasonable doubt.
Justice Gavara-Nanu said in his judgment:
The view taken by the trial judge was of course contrary to the law relating to the burden of proof in criminal trials viz; proof beyond a reasonable doubt. The prosecution always carries the burden to prove every element of the offence charges.
Earlier in the document he stated:
…the trial judge had effectively shifted the burden of proof to the appellant to prove his innocence. This is evident from the trial judge’s statement that it was “incumbent” on the appellant to give evidence and explain the issues raised by the prosecution…
This burden [of proof] never shifts to the accused,
Justice Gavara-Nanu said.
But the DCJ had tried to do just that, maybe because there was precious little of prosecution evidence – and the little that there was available was circumstantial and able to be imagined in more ways than the prosecution had presented or backed up with evidence.
For it is implied, in the ruling, that the Public Prosecutor failed to supply enough evidence to establish a prima facie case, calling only five out of 27 witnesses and failed to subpoena records that would have shed light on the situation.
Maladina’s lawyer, John Griffin QC, soon after the convicting trial told the press
…the state did not show how the fraud was played out at NPF as nobody had testified on it.
Maybe Justice Salika was trying too hard to effect a particular outcome
Because before anyone lays the blame at the feet of the prosecution, let’s not forget that this case had not been listed for hearing by the Public Prosecutor but by the DCJ himself – usurping the role of the Public Prosecutor.
It may have been that the Public Prosecutor, understanding the onus on him to present a prima facie case, knew he didn’t have one, which is why he had not listed the case himself.
So with the clear lack of evidence from the prosecution, the DCJ, instead, decided to rely on Maladina’s own testimony – and when Maladina refused to play ball and would not testify, Justice Salika drew his own improper inferences and conclusions.
Commenting on this, Justices Sawong and Higgins wrote:
It is not possible to simply ignore, as his Honour seems to have done… the principle that no onus of proof, legal or evidentiary rests upon an accused person, hence no adverse inference can be drawn from his or her silence in the face of an accusation…
All in all, the three judges review of their fellow judge is damning and they are in complete accord regarding the defective ruling of the Deputy Chief Justice of Papua New Guinea – the heir apparent to the big job when Sir Salamo Injia retires. What was he thinking?
I knew before
In an article I wrote immediately after Maladina’s original losing court case, I stated the opinion that I found the decision flawed as the verdict was decided with little evidence and that:
For my money, Maladina’s case has not been proven beyond a reasonable doubt.
But so popular was this dubious decision of Justice Salika’s that my criticisms (now vindicated) prompted the scurrilous blog site PNG Blogs to publish a threatening article in response, that had as it’s opening gambit:
My dear fellow Papua New Guineans, the so called Dr Susan Merrell has in effect said that the Judiciary of the Sovereign State of Papua New Guinea is not infallible, That amounts to sedition and she must be arrested and charged immediately when she is in the country.
The threats came later – (I’d like to say “veiled” but they weren’t)
Beware that PNG is no safe haven for you,”
the fictitious Lucas Kelly Dom said
You are PNG’s public enemy number one for attacking our Judiciary.
Of course what this writer really meant was that I was public enemy number one because I had criticised a popular decision.
Nevertheless, after the DCJ came down with a lenient sentence for Maladina I had to join a very long queue to have a say about the calibre of Justice Salika’s decision.
All this lay criticism notwithstanding, it was his three, fellow reviewing judges that have been by far the most harshly critical of the DCJ’s decision.
It seems it was not necessary to have brought the legal and moral discrepancies to everyone’s attention, and that the law and its processes would of (and has) worked as it ought.
Maybe not necessary – but certainly irresistible.
I was finding it difficult to stomach the joy that this flawed decision was unleashing in an unseemly, knee-jerk reaction by the country’s self-identifying “elites” (sic). All that righteous glee for a legal decision that mocked all the principles of law by an esteemed and senior judge who should have known better.
Indeed, this decision has gone some way to restoring my faith in the PNG judiciary and the process of law –.
Addendum: If Jimmy Maladina is innocent of misappropriation and the accusation against the Prime Minister is that he received monies from Maladina that Maladina had misappropriated in this matter, then it stands to reason that this exonerates the Prime Minister of any accusations of impropriety.