Below is the sixty-second part of the serialized edited version of the National Provident Fund Commission of Inquiry Final Report that first appeared in the Post Courier newspaper in 2002/3.
NPF Final Report
This is the 62nd extract from the National Provident Fund (now known as NASFUND) Commission of Inquiry report. The inquiry was conducted by retired justice Tos Barnett and investigated widespread misuse of member funds. The report recommended action be taken against several high-profile leaders, including former NPF chairman Jimmy Maladina. The report was tabled in Parliament on November 20 by Prime Minister Sir Michael Somare.
Executive Summary Schedule 6 Continued
(d) When Mr. Maladina’s K300,000.00 of NPF Tower fraud money was added on 16th March 1999 both of these deposits became a single IBD – Deposit No. C08541 of K914,616.00.
(What happened on withdrawal of this deposit is reported under the heading of the Port Moresby First National Real estate Number 2 Trust Account paragraph 12.4.1(d)).
THE PMFNRE NO. 2 TRUST ACCOUNT
The PMFNRE No. 2 Trust Account is examined in detail in paragraph 12.4 from sub-paragraph 12.4.1 to sub-paragraph 12.4.26.
The various amount of NPF Tower fraud money known to have been transferred from the No. 1 Trust account to the No. 2 Trust Account are listed as well as amounts of Tower fraud money paid directly into the No. 2 Trust Account and amounts paid in from the Nambawan finance deposit (see 12.4.1). Each payment was traced by the Commission, which determined which amounts were credited as “off-book” and which amounts were credited to a numbered ledger.
The results were as follows:-
(a) K100,000 cheque # 266929 transferred form No. 1 Trust Account to No. 2 Trust Account 14th May 1999 (on the same day cheque # 263729 was drawn to cash which was cashed and collected by one Dick Yanda);
(b) From 30th May to 29th September 1999 money transferred from No. 1 Trust Account to No. 2 Trust Account was as follows (only K55,120 being “suspect”:-
The ledgers to which those funds were credited are also shown.
(c) Tower Fraud money paid direct to No. 2 Trust Account:
The ledgers to which those funds were credited are also shown.
(d) From the Nambawan Finance IBD (which included K300,000 of Tower Fraud money) (see paragraph 7.2) the following was paid via the No. 1 Trust Account to the No. 2 Trust Account.
K55,120 for vehicle and K920 for Mr. O’Neill’s benefit
(See detailed discussions at paragraph 12.4.1).
The Commission then conducted a ledger-by-ledger examination in date order.
The “off-book” or adjustment items were considered in paragraph 12.4.2.
Each item is considered in detail in a separate sub-paragraph. The Commission made the following findings and referrals.
At paragraph 22.214.171.124, the Commission has found:-
The Commission was unable to ascertain who Dick Yanda was and thus could not trace the K100,000.00 further.
At paragraph 126.96.36.199, the Commission has found:-
The payment of K55,120.30 by cheque # 286403 was for the benefit of Mr. P. O’Neill.
At paragraph 188.8.131.52, the Commission has found:-
The Commission finds that this payment of cheque # 263604 K100,000.00 was made by PMFNRE for and on behalf of Mr. Peter O’Neill to secure his 25% shareholding, held in the name of Mr. Jack Awela, in Nama Coffee Exports Limited.
At paragraph 184.108.40.206, the Commission has found:-
Mr. O’Neill was concealing his interest in Nama Coffee Exports Ltd, which had borrowed K4 million from PNGBC while Mr. O’Neill was Executive Director of Finance Pacific which owned / controlled PNGBC.
At paragraph 220.127.116.11, the Commission recommends that Mr. Peter O’Neill be referred to the Ombudsman Commission:-
(a) to consider whether he has breached the Leadership Code by receiving the benefit of money derived from the NPF Tower fraud and by concealing his interest in Nama Coffee Exports Ltd.
(b) consider whether Mr. O’Neill has breached the Leadership Code when executive Director of Finance Pacific when PNGBC extended loan facilities to Nama Coffee Exports Ltd in which Mr. O’Neill had an undisclosed interest .
At paragraph 18.104.22.168, the Commission has found:-
This payment of K29,500 was the refund of deposit less agreed costs and the payment was made for the benefit of Hunter Real Estate Limited.
At paragraph 22.214.171.124.1, the Commission has found:-
That the payment of cheque # 263673 for K30,400 was a payment by Ikub Consultancy Ltd (Dr. Rad) to PMFNRE as rental on Mr. Skate’s property and was on-paid by PMFNRE to Mr. Skate’s loan account.
At paragraph 126.96.36.199, the Commission has found:-
The payment of cheque # 263799 for K22,799.82 was for the benefit of Mr. P. O’Neill.
The Commission’s detailed examination of Tower fraud moneys credited to PMFNRE Ledger 8 is reported in paragraph 12.4.3 to 188.8.131.52.
Using additional documents provided by Mr. Joseph Kup the Commission reconstructed PMFNRE Ledger 8 as follows:-
For the reasons set out in sub- paragraphs 184.108.40.206 to 220.127.116.11, the Commission made the following findings:-
At paragraph 18.104.22.168, the Commission has found:-
The proceeds of cheque # 385454 for K5,000.00 cash.
In view of the transactions which follow and the timing of this payment it is quite likely that the K5,000.00 was used to purchase tickets in the annual Aviat Club Melbourne Cup Calcutta.
At paragraph 22.214.171.124, the Commission has found:-
Cheque # 26630 for K25,500.00 was banked to the credit of the bank account of Norman Kenneth and Remidius Barker with Westpac Bank.
In view of what follows it is almost certain that this K25,500.00 was used to pay the cost of the horses purchased as specified in (d) below in the Aviat Club Melbourne Cup Calcutta auction.
At paragraph 126.96.36.199, the Commission has found:-
This Aviat Club cheque # 352264 for K32, 000.00 was in payment of this Calcutta prize money (Exhibits T1500-1503) won in Mr. Fabila’s name when the horse purchased in the Calcutta (Rogan Josh) won the Melbourne Cup.
At paragraph 188.8.131.52, the Commission has found:-
This cheque for K1,500 was profit on the Calcutta prize money (and arrived at by deducting from the prize money of K32,000.00 the cost of tickets of K5,000 and cost of the horses bought in the Calcutta auction of K25,500.00) and was taken in cash.
At paragraph 184.108.40.206, the Commission has found:-
The cheque itself was made payable to “FARAGAMO LTD” (Exhibit T1509) and banked to the credit of Jimmy Maladina’s company Ferragamo Limited with Bank of Hawaii Port Moresby on 18th November 1999 (Exhibit T1510-1512).
At paragraph 220.127.116.11, the Commission has found:-
The Commission notes that the transfer is said to “TRANSFER REF PON” thus indicating the transfer was made at the request or direction of Peter O’Neill and that Peter O’Neill exercised dominion over these funds and the Commission so finds.
The Commission reports upon Ledger 9 at paragraph 12.4.4. The Ledger was reconstructed as follows:-
This ledger concerns the use of Tower fraud money in the purchase by Bluehaven No 42, of the Manamatana Flats. The Commission has found that Bluehaven 42 was owned by Mr. O’Neill (with shares being held on trust for him) and that on 8th March 2000 it was owned by LBJ Investments a company set up for Mr. O’Neill’s children.
Sums of K150,000, K160,000 and K600,000 were credited to Ledger 9.
The balance of the purchase price for the Manamatana Flats was paid out of PMFNRE in April 2000 at which time Bluehaven No 42 was owned by Mr. O’Neill’s children’s company, LBJ Investments.
After the Commission of Inquiry was established on 11th April 2000, attempts were made to hide the source of the funding by fabricating an agreement between Global Halshaw and Property and Investment Consultants Ltd (Mr. Sullivan) shown as dated 24th June 1999, lending funds to purchase investment properties in Port Moresby. This document is clearly false and ignores the fact that Property and Investment Consultants was not a shareholder in Bluehaven No 42 (see description of the attempted cover up at paragraph 18.104.22.168).
It is clear that Messrs Sullivan, Barker and O’Neill have been involved in this cover up and that Messrs Barker and O’Neill committed perjury. Messrs Barker, Sullivan and Maladina left PNG soon after the establishment of the Commission of Inquiry and have not returned.
At paragraph 22.214.171.124, the Commission has found:-
(a) At the time of the purchase by Bluehaven of the Manamatana flats, Bluehaven was beneficially owned by Mr. P. O’Neill.
(b) K150,000 receipted by receipt no. 70547 used in the purchase was derived from the NPF Tower fraud.
(c) K160,000 of the funds receipted by receipt no. 70546 was derived from Nambawan Finance IBD which included K300,000 derived from the NPF Tower fraud
(d) The K600,000 paid to complete the purchase was derived either from moneys fraudulently obtained by Mr. Maladina from the sale of the Waigani land or from Niugini Aviation in Hong Kong.
(e) Messrs Maladina, O’Neill, Sullivan and Barker are well aware of the true facts concerning these moneys and this transaction. Each of Mr. O’Neill and Mr. Sullivan have not given evidence which can be accepted by the Commission.
(f) The evidence of Mr. Barker in relation to what occurred with this K600,000 is clearly false and knowingly false.
Although Mr. Ken Barker committed the crime of perjury before the Commission in relation to what occurred with this K600,000.00, the Commission believes it would be a waste of resources to refer him to the Commissioner for Police as he has departed PNG permanently. He should be referred if he ever returns.
(g) On the 28th October 2002, the Commission directed Counsel Assisting to refer Mr. O’Neill to the Commissioner for Police to investigate whether he should be charged with perjury concerning his evidence on this issue.
Ledgers 10 and 12
Ledgers 10 and 12 are dealt with together at paragraph 12.4.5 and following sub paragraphs. These ledgers do not contain NPF Tower fraud moneys. They deal with other moneys transferred from PMFNRE No 1 Trust Account to the No 2 Trust Account. The Commission studied them in detail as part of its assessment of Mr. O’Neill’s explanations.
TO BE CONTINUED
We are all used to reading logging industry propaganda in The National, after all it is owned by Malaysian logging giant and infamous human rights abuser, Rimbunan Hijau. But now the Post Courier has found itself caught up peddling forestry industry lies.
Contrary to the claims in the Post Courier story below (a story The National first published a day earlier), Japanese aid agency JICA has not said forest management in PNG is carried out in an ecologically sustainable manner and there has been no significant deforestation over the past twenty five years. Neither has it said there is no illegal logging
The whole Post Courier story is just lies and misinformation from the Forest Industry Association and its notorious hack, Bob Tate, based on their false interpretation of PNG’s new forest inventory.
That inventory is based around an analysis of satellite imagery that shows 80% of PNG can be divided up into one hectare blocks with at least 10% canopy cover and tress at least three metros tall. These areas include logged over forests, rural gardens, villages and oil palm and coconut plantations.
Clearly, logged over forests, gardens, rural villages and oil palm and coconut plantations are all areas that although officially defined as forest in the inventory, have no significance at all in defining ecologically sustainable forest management or deforestation rates and in no way can they be taken as an endorsement that logging is legal!
PNG trees in robust state
Post Courier October 28,2015
FOREST in Papua New Guinea is in a robust state, without any significant deforestation for the past 25 years, PNG Forest Industry Association executive director Bob Tate has announced.
In a media statement yesterday, Mr Tate said the information has been confirmed through the ground-breaking analysis using satellite sensing by Japan International Cooperation Agency (JICA) reports.
“The results of this work have been recognised by the United Nations Food and Agriculture Organisation in their latest Forest Resource Assessment released last month,” he said.
Mr Tate said this was the first full inventory ever undertaken of PNG’s forest estate, and it was also a good news story for the PNG Government, which is hosting a meeting of APEC Forestry Ministers this week in Papua New Guinea.
He said the PNG Forest Industry Association thanks JICA for the important research.
“This data is the foundation we need to move to the next step and implement sustainable forest management in PNG,” Mr Tate said.
“This system of management meant tracts of forest and species dependent are preserved and harvesting is selective to ensure regrowth.”
He said that the latest research findings indicated that sustainable forest management is being practiced in PNG, and has been demonstrated to be successful; concerns about deforestation have been largely exaggerated.
“To formalise this sustainable approach, PNG’s forest industry appeals to other donors to fund development of world’s best practices forest sustainability standard, akin to those in developed economies.
“The JICA research reveals Greenpeace has calculated misinformation and Greenpeace has since closed down in PNG.”
He added that Greenpeace and other forestry activities wrongly asserted repeatedly that 70 per cent of PNG’s timber was illegally logged.
JICA dispels forest claims
The National, Tuesday October 27th, 2015
MORE than 80 per cent of the country is still covered by forest, according to a recent study by an aid agency, dispelling claims by anti-logging activists.
Using satellite sensing, the Japan International Corporation Agency (JICA) reported that there had been no significant deforestation in PNG over the last 25 years and that the forests were in good health.
The agency’s analysis was endorsed by the United Nations’ Food and Agriculture Organisation.
“This is a good news for the PNG government who are hosting a meeting of the APEC forest ministers in the country this week,” Bob Tate, executive director of the PNG Forest Industry Association says.
Thanking JICA for the research, Tate said this was the first full inventory ever undertaken of the country’s forest estates.
“This data is the foundation we need to move on to the next step to implement sustainable forest management in the country,” he said.
Tate said this system would preserve tracts of forest and species dependent on them as well as ensure selective harvesting.
“These principles guide PNG government policy today, but a national standard for sustainable development is needed.
“This latest research finding indicates that sustainable forest management has been practised and has demonstrated to be successful but concerns about deforestation have largely been exaggerated”.
He said the findings proved the anti-forestry activists’ misconception and miscalculated information on forest and illegal logging in PNG.
He said Greenpeace and other anti-forestry activists had wrongly asserted repeatedly that 70 per cent of the timber was illegally logged.
“The only source of this number is an unverifiable claim by the World Wildlife Fund (WWF),” he said.
“No timber was allowed to be exported without being checked by independent inspectors but yet the anti-forestry activists and the World Bank continue to cite the number.”
Tate believes the APEC forest ministers will focus on ways to improve forest management and how forestry could be used to reduce greenhouse emissions.
He said now that the country’s comprehensive forestry inventory was in place through JICA’s analysis, he expects the European Union will fund further research on the carbon cycle in the PNG’s forest species.
Again, Peter O’Neill features heavily…
Below is the sixty-first part of the serialized edited version of the National Provident Fund Commission of Inquiry Final Report that first appeared in the Post Courier newspaper in 2002/3.
NPF Final Report
This is the 61st extract from the National Provident Fund (now known as NASFUND) Commission of Inquiry report. The inquiry was conducted by retired justice Tos Barnett and investigated widespread misuse of member funds. The report recommended action be taken against several high-profile leaders, including former NPF chairman Jimmy Maladina. The report was tabled in Parliament on November 20 by Prime Minister Sir Michael Somare.
Executive Summary Schedule 6 Continued
At paragraph 126.96.36.199, after exhaustive investigations, the commission found that:
(a) The commission finds that Mr O’Neill’s money had gone out of the PMFNRE No.1 Trust Account prior to March 25, 1999, and the money in the account was less than sufficient to meet unpresented cheques.
(b) Mr O’Neill’s evidence cannot be accepted.
The commission set out to investigate what happened to the aggregate of K167,300.94 paid into PMFNRE No.1 Trust Account in four payments between January 20, 1999 and March 10, 1999, as detailed earlier in paragraph 188.8.131.52 sub paragraphs (a)-(d).
The commission searched the company records of PMFNRE. They are in clear breach of the Companies Act but also they showed Jack Awela owned 89 of 100 shares.
Other searches have shown this same name appear as the major share holder in other companies which are clearly (and admittedly) owned by Mr O’Neill. At paragraphs 184.108.40.206 and 220.127.116.11, the commission has found that Mr Awela (if he exists as a real person at all) is holding his shares in all these companies for Mr O’Neill. The result is that Mr O’Neill is the beneficial owner of PMFNRE and this accords with the overwhelming weight of other evidence – as set out in paragraphs 18.104.22.168, 22.214.171.124, 126.96.36.199 and 188.8.131.52.
At paragraph 184.108.40.206.3, the commission finds:
The directors of PMFNRE should be referred to the Registrar of Companies for further investigation and with a view to their each being prosecuted for failure to comply with their clear statutory obligations.
That failure renders it difficult to ascertain how the moneys of Mr O’Neill received by PMFNRE were either expended or invested on Mr O’Neill’s behalf.
On March 11, 1999, the No.2 Trust Account was said to have been opened and funds totalling K790,451.10 were recorded as transferred to it from the No.1 Trust Account. In fact, only K120,157.56 was so transferred (see paragraph 220.127.116.11.6(b)) the deficiency between funds actually deposited as against funds recorded as received is K600,293.54. (See commission’s conclusions at paragraph 18.104.22.168.6).
At paragraph 22.214.171.124.7, the commission has found:
(a) Despite Mr O’Neil’s explanation, the commission finds that none of the funds attributable to Mr O’Neill were transferred from PMFNRE No.1 Trust Account to PMFNRE No.2 Trust account between the time the latter was opened on March 11, 1999, and March 31, 1999;
(b) Further, the reconstructed cashbook for the No.2 Trust Account for the periods March 25, 1999 up to September 29, 1999 with this No.1 Trust Account show that none of the funds deposited into PMFNRE No.1 Trust Account and which were attributable to Mr O’Neill were recorded as having been received into the PMFNRE No.2 Trust Account during the same period;
(c) That the funds held by PMFNRE for Mr O’Neill in this No.1 Trust Account were paid out to third parties from the No.1 Trust Account prior to March 25, 1999, as the reconstructed cashbook shows. They were not paid out after that date.
In paragraphs 126.96.36.199.8 to 188.8.131.52.13, the commission makes a detailed study of the “off-book” entries in 1999. These are listed at paragraph 184.108.40.206.10 as follows:
Large sums of money were being transferred. The net effect of what occurred was that there were three contributions to the “off- book” receipts being:
(a) Nambawan Finance Limited, which contributed K321, 593.72;
(b) Mr O’Neill who contributed K189,570.01 as follows:
21/01/99 – K 91,467.63
09/02/99 – K 54,166.65
11/02/99 – K10,833.33
10/03/99 – K22,269.07
10/03/99 – K10,833.33
(c) Carter Newell Lawyers who contributed K70,000 as follows:
25/01/99 – K50,000.00
12/02/99 – K20,000.00
There were three payment destinations for the “off-book” payments:
(i) Carter Newell Lawyers K420,000
(ii) Nambawan Finance Limited K100,000
(iii) Recipients of cash:
25/01/99 – K20,000
28/01/99 – K30,000
29/01/99 – K1000
10/03/99 – K10,000
As at March 10, 1999 – some two weeks before the K300,000 of NPF Tower fraud money came via Ken Barker’s bank account into the PMFNRE Trust Account on March 25, 1999 – a residue of only K163.73 of this “off-book” money remained in the PMFNRE No.1 Trust Account.
Thus, at March 10, 1999, only K163.73 of the K189,569.91 previously for Mr O’Neill remained in the No.1 Trust Account. The rest of Mr O’Neill’s must have:
- Been in part included in the K420,000 paid out to Carter Newell Lawyers, and/or;
- Been in whole or in part included in the K61,000 taken in cash; and/or; and
- Been in whole or in part included in the K100,000 invested in IBD with Nambawan Finance Limited.
On the state of the evidence obtained by the commission, we are unable to determine what was occurring, though it seems that Carter Newell’s cheque # 79628 for K50,000 was “laundered” through PMFNRE and then paid out on the same day by two cheques for K30,000 and K20,000.
It is possible that Mr Maladina was seeking K400,000 for the purchase through Perimist of a property at 5 Atherton St, Whitfield (Cairns), but there is insufficient evidence for a positive finding.
(a) In the absence of evidence, the commission was unable to conclude what was intended and occurred with respect to these “off- book” transactions;
(b) Whoever was managing these “off-book” transactions – Mr Barker and/or Maurice Sullivan must have known exactly what was involved and where Mr O’Neill’s money went but both are now “safely” out of Papua New Guinea as is Mr Maladina;
(c) Clearly, PMFNRE must have kept records of these “off-book” transactions but we are told there are none beyond those produced. Equally clearly Carter Newell Lawyers must have had financial records of the transactions involving them but again we are told there are none available beyond those produced;
(d) Finally, it is also not credible that when Mr O’Neill provided his ANZ cheque for the precise and odd sum of K22,269.07 banked on March 10, 1999, he did not know exactly what that sum was required for and where his money had either been spent or invested.
In paragraph 220.127.116.11, the commission reported upon the surviving investment of Tower fraud moneys.
At paragraph 18.104.22.168.1, it examined the Nambawan Finance IBD’s.
The large funds involved did not concern the commission, being outside the terms of reference but indicate that huge funds were being laundered by Carter Newell through PMFNRE.
It seems the funds were coming from the funds of another statutory corporation.
The commission examined these movements of large amounts of money in 1998 and 1999 through the same CN and PMFNRE accounts through which the NPF Tower fraud moneys were also laundered.
We followed the payment in and out of the accounts of these large flows of funds in order to:
- demonstrate that a similar laundering operation was occurring; and
- confirm that it did not leave any additional “innocent” funds in Mr O’Neill’s account which might disprove the provisional finding that some expenditures for Mr O’Neill’s benefit must have come from the Tower fraud.
Subsequent cover up of the money trail
Other difficulties have been caused by the activities of the conspirators, their associates and, in some instances, their lawyers after the commission was established.
Mr Maladina, Mr Sullivan and Mr Barker, having given false statements or evidence, have departed PNG and taken up residence in Australia, outside the commission’s jurisdiction. In some cases, they seem to have taken vital documents with them.
- Ken Yapane, on Mr Maladina’s instructions, was party to the production and disclosure to the commission of back-dated false documents designed to hide Mr Maladina’s involvement in the fraud;
- Barbara Perks and David Lightfoot were involved also in disclosing false documents to the commission, which were designed to distract it from discovering Mr Maladina’s involvement in the fraud.
Mr Maladina’s crimes are listed at paragraph 5.7.1. These matters are set out in detail in paragraph 5.5.1 – 5.5.4 and referrals to the Commissioner of Police are dealt with at paragraph 5.8.
With regard to Mr Maladina, the commission has found at paragraph 5.7:
There is clear evidence that Mr Maladina committed a multiplicity of serious crimes which include:
(i) Demanding money (K150,000) from Kumagai with threats to stop work on the Tower and reject payment claims if the demand was not met (Criminal Code Act, Section 389);
(ii) Conspiring with Shuichi Taniguchi and Kazu Kobayashi and probably with Herman Leahy to defraud the National Provident Fund Board of Trustees of K2.505 million (Criminal Code Act, Section 407);
(iii) Forging or causing to be forged a writing (being the signature of Ken Yapane & Associates) on the subcontract (Criminal Code Act, Section 462(1));
(iv) Knowingly and fraudulently uttering a false writing (being the signature of Ken Yapane & Associates on the sub contract) to Kumagai (Criminal Code Act, Section 463(2));
(v) Fabricating evidence with intent to mislead a tribunal in judicial proceedings (the two false retyped letters produced to this commission by Mr Yapane) (Criminal Code Act, Section 122);
(vi) Attempting to induce a person called as a witness in judicial proceedings (Mr Yapane as called before this commission) to give false testimony or withhold true testimony (Criminal Code Act, Section 123); and
(vii) Possibly attempting in his telephone conversation with Mr Taniguchi (Transcript p.2977) to induce a person to be called as a witness in judicial proceedings (Mr Taniguchi before this commission) to withhold true testimony (Criminal Code Act, Section 123).
The commission has also found that there is sufficient evidence against several other participants to warrant referring them to the Commissioner for Police and to other authorities.
At paragraph 5.8, the commission recommends to the constituting authority as follows:
A – To the Commissioner for Police
(a) Mr Maladina: For investigation into whether he should be charged with criminal offences including those specified above. (Paragraphs 5.3 and related sub paragraphs – 22.214.171.124-126.96.36.199 and 188.8.131.52-184.108.40.206);
(b) Mr Leahy: For being party to all or some of the above mentioned offences and/or of criminal conspiracy with Mr Maladina in relation to any or all of such offences. (Paragraphs 220.127.116.11 and 18.104.22.168);
(c) (Transcript pp. 3280-3332) Henry Fabila: For being party to all or some of the above mentioned offences and/ or of criminal conspiracy with Mr Maladina in relation to any or all of such offences. (Paragraphs 22.214.171.124 and 126.96.36.199);
(d) Mr Taniguchi: For being party to all or some of the above mentioned offences and/or of criminal conspiracy with Mr Maladina in relation to any or all of such offences. (Paragraph 5.6 and related sub- paragraphs);
(e) Mr Kobayashi: For being party to all or some of the above mentioned offences and/or of criminal conspiracy with Mr Maladina in relation to any or all of such offences. (Paragraph 5.6 and related sub- paragraphs);
(f) Mr Yapane: For being party to all or some of the above mentioned offences and/or of criminal conspiracy with Mr Maladina in relation to any or all of such offences. (Paragraphs 188.8.131.52 and 5.5.4);
(g) Mr Lightfoot: To consider whether there is criminal culpability in relation to the fraud against the NPF such as to warrant charging him with an offence against the Criminal Code. (Paragraph 5.5.3, 184.108.40.206 & 5.5.4); and
(h) MS Perks: To consider whether there is criminal culpability in relation to the fraud against the NPF such as to warrant charging her with an offence against the Criminal Code.
B – To the Ombudsman Commission
(a) MR Maladina: To consider breaches of the Leadership Code in relation to his activities concerning the fraud against the NPF and related activities. (Paragraph 5.3 and related sub-paragraphs);
(b) Mr Fabila: To consider breaches of the Leadership Code in relation to his activities concerning the fraud against the NPF and related activities. (Paragraphs 220.127.116.11 and and 18.104.22.168).
Examination Of Funds Transferred Between No.1 And No.2 PMFNRE Trust Accounts – Assessing Mr O’Neill’s Explanation.
Mr O’Neill’s explanation
In his initial statement and evidence to the commission, Mr O’Neill stated that it was not appropriate to treat the PMFNRE No.1 Trust Account and the PMFNRE No.2 Trust Account in isolation from each of the other and in so doing to conclude that payments made on his account or behalf could only have been funded by funds banked to the credit of the PMFNRE No.1 Trust Account and some of which were sourced from the NPF Tower fraud.
Mr O’Neill was in effect saying that such payments were made by funds held to his credit in the PMFNRE No. 2 Trust Account.
Mr O’Neill’s funds In IBD’s at March 16, 1999
It was in consequence necessary to examine in detail transfers of funds from PMFNRE No.1 Trust Account (into which Mr O’Neill’s money had been banked) to the PMFNRE No.2 Trust Account in order to test this explanation.
This is reported item by item in paragraphs 22.214.171.124 to 126.96.36.199.10.
The “investments” which subsisted after the transfer of funds between these two accounts were the IBD which PMFNRE had with PNGBC of K600,000.00 and the further IBD which PMFNRE had with Nambawan Finance Limited which was at March 16, 1999, in the sum of K914,616.
At paragraph 188.8.131.52.11, the commission examined the IBD with the PNGBC of K600,000 established on March 12, 1999, and found at paragraph 184.108.40.206.11 that:
(a) Having completed this analysis and tracing it is totally clear that all the moneys contained in the initial IBD with PNGBC were funds that were deposited into the PMFNRE No.1 Trust Account and for which receipts were duplicated in the PMFNRE No.2 Trust Account computerised cashbook. It is also totally clear that the renewed IBD was an extension of the same process;
(b) None of Mr O’Neill’s funds which were banked into PMFNRE No.1 Trust Account were shown as included in the receipts duplicated in the PMFNRE No.2 Trust Account computerised cashbook up to March 31, 1999, and it can in consequence be said with total certainty that none of Mr O’Neill’s funds were included in these two IBD’s with PNGBC.
(c) The only ongoing repository of funds in which Mr. O’Neill’s funds could have been invested and which was in existence after March 25, 1999, was the funds invested by PMFNRE on IBD with Nambawan Finance Limited in the deposits of:
(i) K500,000 which subsisted after January 18, 1999 (if part of the Carter Newell “share” was transferred to Mr. O’Neill) as to which see paragraph 220.127.116.11.9; and
(ii) K100,000 which was established on February 25, 1999 – as to which see paragraph 18.104.22.168.10.
TO BE CONTINUED
Below is the sixtieth part of the serialized edited version of the National Provident Fund Commission of Inquiry Final Report that first appeared in the Post Courier newspaper in 2002/3.
NPF Final Report
This is the 60th extract from the National Provident Fund (now known as NASFUND) Commission of Inquiry report. The inquiry was conducted by retired justice Tos Barnett and investigated widespread misuse of member funds. The report recommended action be taken against several high-profile leaders, including former NPF chairman Jimmy Maladina. The report was tabled in Parliament on November 20 by Prime Minister Sir Michael Somare.
Executive Summary Schedule 6 Continued
Of major concern to the commission were large payments to Mecca No.36 Pty Ltd (now South Supa Store) owned by Peter O’Neill and NPF trustee Nathaniel Poiya.
The commission finds the deposit of K10,833.33 was in respect of Mr O’Neill’s rental allowance for April 1999 and in consequence that K10,833.33 of Mr O’Neill’s funds were held in this account.
In paragraph 22.214.171.124, the commission made the following findings:
(a) PMFNRE cheque # 266923 for K45,000 was sourced from the NPF Tower fraud money;
(b) As a consequence, K5,000 of the Tower fraud funds remained in this account;
(c) As we have said earlier, we will come back to the payments to Williams Graham & Carman shortly. Mr O’Neill’s evidence was that none of these earlier payments had been made for his benefit so his K10,833.33 should still have been held plus the K5,000 of NPF Tower fraud moneys aggregating K15,833.33;
(d) The cashbook balance according to PMFNRE (Exhibit T1017) was only K10,854.68. Again it is clear either PMFNRE was “using” this money or Mr O’Neill’s or the NPF Tower fraud funds had been used to pay other cheques;
In paragraph 126.96.36.199, the commission made the following findings:
The two cheques each for K50,000 presented on May 4, 1999, were funded from the NPF Tower fraud money;
In paragraph 188.8.131.52, the commission made the following findings:
(a) After considering the whole of the available evidence, the commission finds that the sum of K102,300 paid by the Carter Newell cheque # 788441 which was derived from the NPF Tower fraud money was placed under the control of Maurice Sullivan and Ken Barker of PMFNRE upon its deposit on May 4. 1999, and that in exercise of the control so placed in him Mr Barker on the same day directed payment out of such funds of the two cheques # 266924 and 266925 each for K50,000 to PNGBC the first to make an International Money Transfer of the equivalent of K50,000 to Williams Graham & Carman, Solicitors of Cairns Australia and the second to make an International Money Transfer of the equivalent of K50,000 to Mr O’Neill’s former wife Cheryl Caley;
(b) The commission further finds that the bank fees of K36 were also paid from this deposit and that all of these payments were from funds derived from the NPF Tower fraud.
(c) It follows from these findings that of the funds remaining in this PMFNRE No.1 Trust Account after such payments and the debit of bank charges the residue of this K102,300 deposit amounting to K2264 plus the earlier residue of K5000, aggregating K7264 were held out of the NPF Tower fraud moneys and that K10,833.33 was held on behalf of Mr O’Neill;
In paragraph 184.108.40.206, the commission made the following findings:
The commission finds that this deposit of K10,833.33 was in respect of Mr O’Neill’s rental allowance for May 1999 and in consequence of its other findings that the funds of Mr O’Neill held in this account increased to K21,666.66;
In paragraph 220.127.116.11, the commission made the following findings:
There is insufficient evidence for the commission to make any definite finding in relation to these two payments of K6000 and K5000.
In paragraph 18.104.22.168, the commission made the following findings:
The only source from which this cheque for K100,000 could have been fully funded was the deposit of K300,000 on the same day (see (m) above), which was derived from the NPF Tower fraud;
In paragraph 22.214.171.124, the commission made the following findings:
(a) Cheques # 266930 and # 266931 aggregating K17,379.11 were paid from Mr O’Neill’s own funds;
(b) The dilemma, as we have said earlier, is that if the K10,833.33 of Mr O’Neill was applied in the earlier payment of K50,000 to his former wife, then there would not have been sufficient of his funds to cover this second payment to his former wife;
(c) Again the situation is confused by the use of the MJS/KB code on deposits of both NPF Tower fraud moneys and Mr O’Neill’s moneys and the payment out of moneys for the benefit of Mr O’Neill as well as others;
(d) Later investigations support the possibility that the various credits formed one common fund;
In paragraph 126.96.36.199, the commission made the following findings:
(a) It is totally clear that the deposit of K300,000 on Friday, May 14, 1999, derived from the NPF Tower fraud was banked with the “MJS/KB” code; that the K100,000 transfer to PMFNRE No.2 Trust Account on the same day was sourced from this deposit; that the K100,000 transfer to Mecca (No.36) Pty Limited the following Monday also with the “KB/MJS” code was also sourced from this deposit and finally that the cash withdrawal of K100,000 on the following Friday yet again with the “KB/ MJS” code was also sourced from that deposit;
(b) As will be seen later in this report, the K100,000 transferred to PMFNRE No.2 Trust Account was also converted to cash on May 14, 1999, and could not be traced further;
(c) On the evidence before the commission, it is clear that the second K100,000 was received by Mecca (No.36) Pty Ltd and that such money was not earned;
In paragraph 188.8.131.52, the commission made the following findings:
(a) The payment of K100,000 to PMFNRE No.2 Trust Account on May 14, 1999, derived from the NPF Tower fraud and could not be traced further;
(b) The cash withdrawal of K100,000 on May 21, 1999, was derived from the NPF Tower fraud and was received by Ken Barker and later paid to Jimmy Maladina;
(c) The payment of K100,000 to Mecca No.36 on May 17, 1999, was derived from the NPF Tower fraud and it was unearned by Mecca No. 36;
(d) Mr Poiya was a substantial shareholder in and director of Mecca No.36 Pty Ltd (now South Super Stores Ltd). At the time of the K100,000 payment to Mecca No.36 Mr Poiya was a trustee of the NPF;
(e) MR Poiya and Mr O’Neill benefited from the payment to Mecca;
(f) THE benefit received by trustee Poiya was improper and the commission recommends that he be referred to the Ombudsman to consider whether there had been a breach of the Leadership Code by Mr Poiya; and
(g) The benefit received by Mr O’Neill was improper and at the time he was subject to the Leadership Code, being executive director of Finance Pacific.
The commission recommends that Mr O’Neill be referred to the Ombudsman Commission to consider whether there has been a breach of the Leadership Code.
The payments made to Williams Graham & Carman were all from NPF Tower fraud money and all were paid to the lawyers in relation to the purchase by Bethgold of the Kanimlba property. The K50,000.00 to Cheryl Caley on May 4, 1999 was from the same source and for the same purpose.
Although Mr Barker and Mr Sullivan are shown as the directors and shareholders of Bethgold Mr Maladina and/or Mr O’Neill had beneficial interests in that company held for him/them by Mr Barker and Mr Sullivan.
The commission’s investigations clearly showed the criminal activities of Mr Barker and Mr Sullivan, former PMFNRE managers who had fled to Australia. At paragraph 184.108.40.206, the commission has found:
(a) Both Mr Sullivan and Mr Barker were involved in the laundering and disposal of the proceeds of the NPF Tower fraud through the PMFNRE No.1 Trust Account and the use of a code in that process strongly suggests “guilty” knowledge which may render both men accessories after the fact to that fraud;
(b) The commission recommended that Mr Sullivan and Mr Barker both be referred to the Commissioner for Police to consider charges for aiding the offence of fraud and any other offences;
(c) The commission also considered that Mr Barker:
(i) LIED on oath regarding the refund of K99,000 to Mr Maladina;
(ii) falsely denied knowledge of payments of K102,300 and K300,000 made by Mr Maladina to PMFNRE No.1 Trust Account; and
(iii) falsely stated that K60,000 and K690,000 were used to purchase Treasury Bills (see paragraph 12.3.4).
As Mr Barker is now permanently residing in Australia it would be a waste of resources to refer him to the Commissioner for Police to consider charging him with perjury under the Commissions of Inquiry Act. If he ever returns to PNG, he should be so referred.
As the commission’s inquiries continued it became clear that many payments were made to or at the direction of Mr O’Neill, that these payments far exceeded the total funds legitimately held by PMFNRE and that a significant portion of these additional payments were sourced from funds which demonstrably were the proceeds of the NPF Tower fraud.
In trying to explain these matters, some of Mr O’Neill’s explanations were unacceptable, internally inconsistent and contrary to clearly documented factual evidence. As inquiries progressed further and the successive ledgers were examined in more detail it became clear that Ledgers 18 and 31 were Mr O’Neill’s own ledgers.
At the end of the day the commission was forced to conclude that Mr O’Neill actually owned PMFNRE. To test Mr O’Neill’s unsatisfactory evidence, the commission constructed an extension of the cashbook as at paragraph 12.3.6 as follows:
The reconstructed extension of cashbook from May 30, 1999 to September 29, 1999.
It was then able to make the following further findings.
This deposit of K10,833.33 was in respect of Mr O’Neill’s rental allowance for June 1999;
At paragraph 220.127.116.11, the commission found that:
(a) The two cheques for K55,120 and K920 account exactly for the proceeds of the Nambawan Finance cheque for K56,040 banked the previous day and the commission so finds;
(b) The receipt of K55,120 into the No.2 Trust Account was kept “off book”;
At paragraph 18.104.22.168, the commission found that:
The cheque #028585 for K275,000.00 obtained by Hunter Real Estate Limited was proceeds of funds paid out of IBD held by the Registrar of the National Court, which was the subject of litigation between Mr O’Neill and Mr and Mrs Donald.
At paragraph 22.214.171.124, the commission found that:
The deposit was in respect of Mr O’Neill’s rental allowance for July 1999;
At paragraph 126.96.36.199, the commission found that:
The deposit of K275,000 into PMFNRE No.1 Trust Account on July 16, 1999, was paid into the No.2 Trust Account in three separate cheques and receipted as a deposit on PMFNRE sale of property by Hunter Real Estate.
The evidence of Mr O’Neill’s involvement with regard to the No.1 Trust Account is discussed at paragraph 12.3.8 and it is clear that the only funds paid into or held in the No.1 Trust Account for Mr O’Neill aggregated K32,449.99 or on the view most favourable to Mr O’Neill the total would be K57,499.99. Yet quite clearly the sum of at least K167,397.11 was paid out for his benefit or at his direction.
At paragraph 188.8.131.52, the commission has found that:
(a) Given the above explanation, the commission is compelled to conclude that the source of the differentials was Mr Maladina’s funds from the NPF Tower fraud and the explanation given by Mr O’Neill does not withstand testing and cannot be accepted. (Mr O’Neill’s explanation is further reported below at paragraph 184.108.40.206).
(b) The PMFNRE No.1 Trust Account appears to have been treated as a common account containing the funds of Mr Maladina and Mr O’Neill and some other transactions. Mr O’Neill’s explanations included claims that some of the payments were sourced from or paid as rental on his properties but his claim did not withstand scrutiny as other arrangements for rent were actually in place as recorded in detail in paragraph 220.127.116.11 of the Schedule.
TO BE CONTINUED
Every barrier is an opportunity in the amoral universe of western capitalism.
Take for example Panguna – two decades of spiritual, environmental and social devastation, topped off with a decade long war, has sparked landowners to say ‘never again … in the future development will be done according to our means and our objectives’.
Sound like a pretty large barrier for Rio Tinto’s return to the scene of the crime, which it left smouldering two and half decades ago.
Cue the mediation capitalists. With global miners around the world wanting a foothold in land and environments that is not theirs, a new class of foreign entrepreneurs have emerged who want to make money through a unique specialism – they know how to wrench consent out of unwilling landowners.
Numerous companies are panting at Rio Tinto’s door, with their hands open. One is the Australian company RREDD, Risk Response Engage Design Deliver, who specialises in helping miners disarm landowner opposition.
Fresh from its work with Judge Kandakasi at PNG LNG, RREDD’s Principal Craig Jones recently sent this email::
“Judge [Kandakasi] I’m back in Australia. I remain interested in the Bougainville issue… It may be that your success with the PNG LNG matter may give us some credibility around conducting a process in Bougainville where we are the neutral 3rd party.
I have a close relationship with the most senior Rio Tinto person responsible for communities.
If there is any angle you can push it might give me an angle to push with Rio to fund a process”.
It is hard to accept the logic, on the one hand RREDD claim they are neutral, but on the other have good friends at Rio Tinto who might help boost their annual profit margins by funding a mediation process. Their loyalties are not to the heritage of Panguna but the moneybags and those companies who hold the purse strings.
And shame on a Papua New Guinea national court judge for selling his national role like some high priced wine. Where was this judiciary when people were being butchered by the military? Nowhere!
Landowners at Panguna know a trojan horse when they see one. They know these companies have one thing in mind, their own pockets, and they know Rio Tinto has no interest in resolving the past, unless they see profits at the end of the table.