By Clifford Faiparik
Police will have Kiriwina –Goodenough MP Douglas Tomuriesa before the National Court to be trial despite been cleared for allegedly misappropriating K6million of public funds, acting National Fraud and Anti-Corruption Director Chief Inspector Pare Kuiab says.“I will definitely check with the Officer In charge of Prosecution and get the court case file to have it forwarded to Public Prosecutor (to indict Tomuriesa to be trial at the National Court through the ex officio process)”.Kuiab said that yesterday after the Waigani District Court magistrate Danny Wakikura dismissed Tomuriesa case for misappropriating K6million belonging to the South Fly people saying that it is a civil case matter and not a criminal case.However Wakikura had found Tomuriesa and his wife Rachael guilty on November 10, 2021 and committed both to stand trial before the National court for allegedly misappropriating K6million 11 years.Both were charged with colluding with then South Fly MP Sali Subam and Subam’s liaison Officer Andrew Marubu to misappropriate K6million that was intended to build houses for District Health Workers in South Fly District However, that K6miiion was allegedly diverted to Tomuriesa’s company Quick Span Building System to procure building materials without the Central Supplies and Tenders Board (now National Procurement Commission) approval.And Wakikura had adjourned the matter to November 24 2021 for hearing of section 96 statements and for the listing at the National Court. Eventually he dismissed the case on April 13, 2022. However Kuiab believes that the magistrate has erred in his decision in using section 96 of the District Court Act to dismiss Tomuriesa and his wife Rachel when the same court has already ruled that both accused will stand trial. “Section 96 in my view does not confer any such power to a Court. It merely accords the Accused person one final chance to say anything in his defence and have the same documented before the file reaches the Public Prosecutor. Such would be good for a defence case especially for statutory defences of bona-fide claim of right, honest but mistaken belief and or self defence, among others or general defences such as mistaken identity etc. In no way, expressly or implicitly does Section 96 empower the Court to re-visit its own decision on committal. I see the making of such rulings, after the finding of a prima-facie case and decision to commit has been made to be contrary to the express terms, intent and spirit of the provisions of the District Court Act in relation to committal proceedings. Per the National Court Judgment above, such a decision is without basis and cannot stand in law. Once, Magistrate makes a decision that there is sufficient evidence to commit the accused person and invited him to make Section 96 of District Court Act statement, he can’t change his decision but must let it go through the process and allow the trial judge to determine.