Election managers jailing a salient and timely warning
Former National Capital District Election Manager, Terence Hetinu, has been sentenced to seven-years jail for official corruption.
This comes after Hetinu was found guilty of receiving K184,300 and the promise of lucrative post-election security contracts in return for ensuring that aspiring candidate, Michael Kandiu, wins the NCD Governor seat in the 2017 election.
Kandiu, who is again a candidate in next months election, strenuously denies any wrongdoing. He says the court did not find that he personally paid any monies to Hetinu, that his signature on an MOA found in Hetinu’s possession was a forgery and this was ‘verified during his interview with police’.
Nonetheless, as we detail below, the court was satisfied the K184,300 found in Hetinu’s possession was given to him to try and ensure Kandiu won the election.
With the 2022 National Election looming Hetinu’s case serves as a salient and timely reminder, both of the prevalence, and potential consequences, of election fraud.
The case also raises once again, questions about the selective prosecution of some persons and not others implicated in the same crimes.
Below, we look in detail at each stage of the criminal proceedings against Hetinu: the committal, the joinder, the trial and his sentencing – a process that took fully five-years to complete.
We also reveal a further piece of evidence not available to the court at trial and a bizarre twist in what eventually happened to the K184,300 found in Hetinu’s possession.
Although he was first arrested in June 2017, it took almost four years before Terence Hetinu faced a committal hearing. At that stage he was facing two charges of official corruption, one charge of dealing with the proceeds of crime and one charge of conspiracy to commit a crime.
The facts of the case against Hetinu, as summarised by the Senior Magistrate were as follows.
On 27 June 2017, during the counting of votes in the National election, ‘the public reported to the police that Hetinu was moving around with cash monies and bribing polling officials to support a certain candidate’.
“Upon receipt of the complaint, Police commenced investigations. They sighted the defendant and approached him. His vehicle was searched and cash monies amounting to K184, 3000 was confiscated from a black bag which he carried at that time and was in his possession. In the same bag, Police also confiscated documents namely a Memorandum of Agreement (MOA) between a certain candidate and the defendant. The MOA Stated among others that the defendant would be rewarded with contracts with NCD if he performed his part of the deal and if the candidate won the Port Moresby Regional Seat, North East electorate in the 2017 elections.”
In an interview with the police, Hetinu admitted being in possession of the cash and the MOA, but claimed his signature on the MOA was a forgery and that the money had been given to him by the Electoral Commission to pay polling officials.
To support its case the prosecution tendered 12 witness statements at the committal hearing.
David Wakias, an Election Manager from the Election Commission, stated that in June 2017 the Commission did not have any monies for the payment of polling officials. Funds for that purpose were only released on 14 July 2017.
This evidence was confirmed in an uncertified statement from John Kalatora, Deputy Electoral Commissioner. He also stated the K184,300 in cash was not from the Electoral Commission.
Sylvester Kalaut, then Assistant Commissioner for Police, stated he was involved in the initial interview of Hetinu at Boroko police station. He sighted and confined that Hetinu was in possession of the K184,300. In the interview, Hetinu stated that the monies had been given to him by the Electoral Commissioner, Patilias Gamato.
Mike Imara, a Sergeant in the Police Forensics Science Centre, stated that in his expert opinion the signature of Terence Hetinu on the MOA was genuine. There was no evidence tendered on the authenticity of the other signatures on the MOA.
Other statements were tendered from other police officers confirming and supporting the evidence against Hetinu.
In his statement to the committal court, Hetinu’s story changed slightly. He now claimed that his signature on the MOA was genuine, but that he had signed the MOA ‘under pressure’ from a person ‘he did not personally know’. He also said the signing of the MOA had no link to the monies found in his possession, which had been given to him by Gamato to pay camping allowances for polling officials.
The police also tendered the MOA as evidence. It was dated June 2017 and was between Michael Kandiu, Terence Hetinu and Willie Winstand Ipuia (the Coordinator/Electoral Agent for the Moresby North East Electorate.) The MOA stated that ‘Michael Kandiu who was vying for the Governor’s seat was seeking certain favours from the defendant’ and that if Kandiu won the election, then ‘certain NCD contracts would be awarded to him’.
As previously noted, Kandiu strenuously denies that his signature on the MOA is genuine.
On the charge of conspiracy with the Electoral Commissioner, the police case was that as the Commissioner ‘has made statements in defence of the defendant, and where all state witnesses from PNG EC say there was no such monies in the month of June 2017 for polling officials, it is likely that the defendant and Mr. Gamato had known about the defendant’s criminal behaviour, had defended it and therefore had agreed with the defendant’s obtaining of the monies and dealing of them to most likely bribe polling officials’.
In the light of the above evidence, the Senior Magistrate concluded there was sufficient evidence to make out a prima facie case that the defendant, Terence Hetinu did commit the alleged offences of Official Corruption, Dealing with Criminal Property and Conspiracy to Commit a Crime. He was therefore committed to stand trial.
Patilias Gamato was also charged by police in relation to these same offences and was also committed to stand trial in a separate hearing held in October 2020.
Three months after Hetinu was committed to stand trial, in July 2021, the National Court heard an application by the State for a joint trial of the two accused, Hetinu and Patilias Gamato.
The application was opposed by each of the accused, who both argued to have their charges heard in separate trials.
At the application, the prosecution presented new joint charges against the two defendants. One charge of corruptly receiving the K184,300 from Michael Kandiu to ensure his election in the NCD Regional Seat and one charge of conspiracy to commit the same offence.
In support of the charges, the prosecution statement of facts revealed new details of how the police investigation commenced and the circumstances of Hetinu’s arrest:
“It is alleged that on the 27 June 2017 the day of polling in National Capital District (NCD) David Wakias an Election Manager for the Southern Highlands Province at that time and the public reported to police that the accused Terrence Hetinu was driving one of the Electoral Commission vehicles describe as, Foton, registration number ZEA 621 white in colour and was allegedly handing out cash monies as bribes to the polling officials to support one of the NCD Regional Candidates, known as Michael Kandiu.
“The residents at China Town in East Boroko, NCD saw the accused Terrence Hetinu driving his vehicle and stoned it, it was at this juncture the police was alerted. Terrence Hetinu tried to escape both the public and police but was apprehended at East Boroko Traffic light whereby the police searched the vehicle and found cash monies with the document in the form of Memorandum of Agreement (MOA) in his small black bag. The accused was then taken to Boroko Police Station and was brought before the Commander NCD/Central & Assistant Commissioner of Police, Sylvester Kalaut for further interrogation.
The statement of facts also claimed that after Hetinu’s arrest, Gamato had publicly supported Hetinu’s claim that the cash in his possession was from the Electoral Commission and had been given to him to pay the camping allowances for polling officials. Gamato’s comments were made at a press conference on the afternoon of Hetinu’s arrest and published in both the Post Courier and The National newspapers and on EMTV news at the time.
At the hearing, Gamato’s lawyer argued that a joint trial would unfairly prejudice his client.
He argued that the evidence against Gamato was purely circumstantial and based only on the claims of Hetinu that the money was given to him by his boss and Gamato’s statements to the press, which were taken out of context. He also pointed out that Gamato was not mentioned in the MOA whereas other persons were, ‘including Michael Kandiu, who is at large’. There was no evidence of any monies going to Gamato, his lawyer argued, and his defence of complete denial would be prejudiced by all the physical evidence that would be heard that only implicated Hetinu.
Hetinu, through his lawyer, also argued for separate trials. He said his clients defence would be that he was given the monies by Gamato, and that his client would be prejudiced if Gamato was found not guilty.
The prosecution application for a joint trial was accepted by the court and the defence applications for separate trials were refused.
The court agreed with the proposition that as a general rule, where two accused are charged with a single offence, or a number of offences acting in concert as part of a common purpose based on the same set of facts, they should be dealt with in one trial. Only in very exceptional circumstances should separate trials be ordered.
“It is in the interests of justice and the ascertainment of truth that the cases of accused persons facing the same charges are heard together for several reasons.
The interests of justice demand that such matters should usually be heard together to save costs, time and the resources of the State, avoid inconvenience to witnesses, and promote the efficient administration of justice.
A joint trial also promotes the ascertainment of truth.It facilitates a single and final inquiry into matters that arise out of or essentially involve common issues of fact or law.It minimises the risk of inconsistent rulings and verdicts and promotes a just outcome….
The fact that each accused intends to run a “cut-throat” defence, that is where each accused blames the other, usually strengthens the interest in running a joint trial.It allows the fact finder to consider all the relevant facts.The evidence at separate trials is likely to be incomplete in relation to each accused and the jury would receive an artificial version of events.”
The Court found there were no exceptional circumstances warranting separate trials and ordered the trials of the two accused be heard jointly.
The matter then proceeded to a trial which was held over 9 days in August, September and October 2021.
At trial the State called ten witnesses and tendered a number of documents as evidence.
Two police constables gave evidence on how Hetinu came to be arrested and taken to Boroko police station. Assistant Commissioner Kalaut and Detective Morikia gave evidence of what happened at the police station. Expert evidence was heard on the authenticity of Hetinu’s signature on the MOA. Three officers from the Electoral Commission gave evidence on the funds available at the time of Hetinu’s arrest and the process for the payment of allowances. Journalist Gorothy Kenneth gave evidence of what was said by Gamato at a press conference held on the afternoon of Hetinu’s arrest.
Both Hetinu and Gamato denied corruptly receiving the K184,300 and each blamed the other.
Mr Hetinu claimed that as there was no money to pay election officials on the eve of the election and they were threatening to walk out, Mr Gamato called him to his house and gave him the money to pay the officials. Mr Gamato meanwhile admitted calling Hetinu to meet him at his house on the morning of the offences but denied any knowledge of the MOA and denied giving Hetinu any money.
Both Hetinu and Gamato gave evidence in their own defence. Hetinu also called Mr Kandiu as a witness for his defence and Gamato called Chief Superintendent Benjamin Turi to give evidence.
Having heard all the evidence, the judge, Justice Berrigan made the following findings of fact.
One day polling for the National General Election in the NCD was scheduled to take place on 27 June 2017.
No allowances were paid by the Electoral Commission to any election officials or temporary election workers in NCD on or before 27 June 2017.
On the morning of 27 June, Mr Gamato decided to defer polling in NCD because officials had failed to take up their posts because of the non-payment of allowances.
Later that morning, police were alerted that the Election Manger and his staff were being attacked in the China Town area of Port Moresby.
When police attended the scene they found a crowd surrounding a government vehicle with Mr Hetinu at the wheel. Members of the crowd reported that the Election Manger for NCD was distributing money ‘to officials and/or voters’, and the crowd reacted.
“Mr Hetinu drove away fast, the crowd followed, shouting and throwing stones. The police gave chase and caught up with Mr Hetinu at the Bisini lights.”
Mr Hetinu was detained by the police and taken to the Boroko police station.
Inside Hetinu’s backpack, which was found in the passenger seat of his car, the police found K184,300 in cash, in bundles of K100 and K50 notes. They also found a Memorandum of Agreement purportedly between Michael Kandiu, Terence Hetinu and Willie Winstand Ipuia that appeared to be signed by all the parties.
The judge accepted the evidence of Chief Sergeant Mike Imara that in his expert opinion the signature of Terence Hetinu on the MOA was genuine.
Under the terms of the MOA the parties agreed ‘to do such acts from time to time that shall cause or give effect to’ the election of Michael Kandiu to the NCD Governor’s seat.
In return, the MOA states, Mr Kandiu agreed to make available to Mr Hetinu and Mr Ipuia an undisclosed amount of monies to be disbursed between them and, in addition, in the event of Mr Kandiu’s election, Mr Hetinu was to be awarded all security contracts with the NCD Commission for a period of five years.
What was not heard in evidence and which the police seem to have been unaware of, but PNGi can exclusively reveal, is that some eight months before his arrest, Mr Hetinu had registered a security business.
In October 2016, Hetinu registered ‘Impact Security Services’ as a business name with the Registrar of Companies. The ‘nature of the business’ was described as ‘Security Guard (Static Guard) Services’. The postal address given for the business is the same as that given for Mr Hetinu in the MOA.
Justice Berrigan concluded that the evidence excluded any other rationale explanation other than that Mr Hetinu received the K184,300 pursuant to the MOA.
The judge rejected the evidence given by Mr Hetinu that he was given the money by Mr Gamato to pay polling officials allowances. Hetinu’s evidence, said the judge, was ‘implausible and lacking truth and credibility’ and he could not be accepted ‘as a witness of truth’.
The judge was also dismissive of the evidence given by Mr Kandiu.
Kandiu was called as a witness and appeared on behalf of Hetinu. He was not a State witness assisting the prosecution, as has been claimed in the media.
As a witness, Mr Kandiu was alerted by the judge to his right to refuse to answer questions that might incriminate himself, nonetheless he provided plenty of testimony.
Kandiu denied signing the MOA or giving any cash to Hetinu. Instead, he claimed the money was given to Mr Gamato by the incumbent governor who he claimed was present at the police station after Hetinu’s arrest.
This evidence was rejected by the judge.
“Mr Kandiu’s testimony that it was well known that the incumbent governor was at the police station at the time and gave the money to Mr Gamato is hearsay, was not put to the State witnesses, and is inconsistent with the evidence, including the admissions of the accused, that the monies were found on Mr Hetinu that day.”
The judge also rejected several other claims by Kandiu of questionable or wrongful conduct by the police in their investigation.
“None of this was put to SC Morikia in cross-examination by Mr Hetinu’s lawyer, and none of it alters my findings on the evidence established in this trial that Mr Hetinu did receive the monies from Mr Kandiu pursuant to the MOA.”
In conclusion, the judge said:
“I am further satisfied beyond reasonable doubt that Mr Hetinu received the monies on account of ‘paying the polling officials to ensure that Michael Kandiu’ won the National Capital District Regional Seat.”
Mr Hetinu was accordingly found guilty of official corruption.
The evidence presented at trial against Mr Gamato, however , was much less convincing.
The State’s case was based on four matters: that Mr Gamato admitted to meeting with Mr Hetinu on the morning of 27 June 2017, that Mr Hetinu claimed Mr Gamato gave him the K184,300, Mr Gamato said he was aware of the cash at his media conference later the same day, and the MOA refers to an unidentified ‘fourth party’.
While the judge did find that the meeting between Mr Gamato and Mr Hetinu did take place, she concluded Mr Hetinu evidence could not be relied on as to what occurred there. She also noted that there no other corroborating evidence to support the prosecution case that Mr Gamato had given the money to Mr Hetinu and it was ‘untenable on any fair reading’ of the MOA that the fourth party was a reference to Mr Gamato. The judge also found Mr Gamato’s comments at the media conference ’do not establish beyond any reasonable doubt that he received any monies from Michael Kandiu’.
Patilias Gamato was found not guilty of official corruption.
On 29 April 2022, Terence Hetinu was sentenced to seven-years jail for official corruption. It was the maximum sentence available to the court.
In his statement to the court, Hetinu apologised to the people of NCD, the Electoral Commission and the Seventh Day Adventist church, where he held a senior position as an Elder.
He apologised for breaking the law and said it was the first time he had ever done such a thing in his line of work
Nonetheless, the court heard that he did have a prior conviction for three counts of obtaining by deception in East New Britain in 2007 for which he received two-years imprisonment wholly suspended.
In imposing the maximum possible sentence, seven-years jail, the court opined that Hetinu’s offence, given the degree of trust involved, his seniority, the level of planning, the amount of monies involved, the prevalence of the offence and his prior conviction, was an example of ‘official corruption of the worst kind’.
It involved ‘a gross breach of trust’ that that ‘strikes at the heart of democracy, and offends against the will of the people’.
“It was a shocking crime”.
Justice for one but not for all?
One glaringly obvious question from the trial and conviction of Terence Hetinu is why was he charged and prosecuted and not Mr Kandiu, who the court found was the intended beneficiary of the MOA and the monies paid Hetinu in order to fix the outcome of the election.
Also, why was the third signatory to the MOA, Willie Winstand Ipuia (the Coordinator/Electoral Agent for the Moresby North East Electorate, not arrested, interviewed and charged?
Trial judge, Justice Berrigan, was also apparently troubled by this issue. In her written judgement the judge commented on the evidence of Senior Constable Morikia that ‘he was directed to pursue Mr Hetinu’s investigation first’.
“Decisions regarding the prioritisation of investigations having regard to the available evidence, the whereabouts of suspects, and limited resources are ultimately matters for police, but in general terms police should avoid conducting piecemeal investigations and running “test” cases before the courts. This has the potential to interfere in the efficient administration of justice, as well as undermine confidence in the criminal justice system.”
Rather than facing court on criminal charges, Mr Kandiu is again a candidate in next month’s national election, still vying for the position of NCD Governor.
In a bizarre twist to the Hetinu case, there are two other convicted criminals serving seven years jail time in relation to same cash that was found in the possession of Terence Hetinu on 27 June 2017.
Married mother Agnes Jimu and her husband Charles Andrew Epei were both sentenced to jail in 2019 for stealing K47,700 from the safe of the Assistant Commissioner of Police and then attempting to burn down the building to conceal the crime.
The K47,700, was part of the K184,300 cash confiscated from Terence Hetinu by police in June 2017.
Agnes Jimu was employed by the RPNGC as an Administrative Officer for the Divisional Commander for the National Capital District (NCD). Charles Epei, her husband, was an IT officer with Pacific Post.
According to the Prosecution case, Jimu was the only person with a key to safe in in the Assistant Commissioner’s office and she took the money on the evening of the day on which she was to be served with a notice of termination of her employment in relation to a separate matter.
Her attempts to cover her crime by setting fire to the safe and office were less than successful despite using a can of petrol as an accelerant. Only part of the contents of the safe were destroyed and Jimu herself received sufficient burns that she needed to be treated at hospital.
The fire service successfully extinguished the blaze and subsequently burnt bundles of bank notes were retrieved from the safe and two five litre petrol cans were found on the floor. One was empty and one was still full. Traces of petrol were found in the safe and on the floor of the filing area and at Jimu’s work station.
While Agnes Jimu immediately confessed her involvement in the two crimes to police on the eve of the robbery and fire, her husband was convicted at trial.
Both Agnes Jimu and her husband were sentenced to 12 years imprisonment with the final five-year suspended, in October 2019.