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.