Garth McIlwain, former managing director for Bank South Pacific (BSP), will face trial in the National Court following a decision by the Committal Court in Waigani to commit him on two criminal charges of falsifying bank documents on a fixed floating charge against a business entity under the Yama Group of Companies.
Magistrate Sinclaire Gora said documentary evidence presented by prosecutors contained more undisputed facts which weighed heavily against him warranting a trial at the National Court to verify and test out the seriousness of these allegations. Mr. Gora reminded him that although he is committed on charges of uttering and forgery he is not guilty.
McIlwain had created and signed the fixed floating charge on May 6, 1999 against a purported loan taken out by a business entity within the Yama Group of Companies, which Mr. Yama has denied knowledge of. He is alleged of not being BSP MD at the time, nor was he an employee of BSP, therefore, had no lawful authority to sign. Various supporting documents including one from MP Peter O'Neill, a former director and chairman of BSP from 1997 to 1999 stated McIlwain was not employed by BSP. Another director on the board from 1999 to 2000 also stated the same.
After nearly seven years McIlwain and the bank registered charges with the Registrar of Companies. McIlwain argued that because the Yama Group of Companies had failed to register the charge he and the bank had taken the initiave to register it on December 1, 2006: this was to recover monies owed to the bank from the purported loan taken out. Registrar of Companies Alex Tongia, who was deputy registrar at the time the charges were signed, gave evidence that a file search confirmed it was registered years late. Mr. Tongia's evidence described this as 'highly unsual and suspicious' as it breached the Companies Act because the documents looked as though they were photocopied. Mr. Tongia's evidence which Mr. Gora read, "it appears falsified and the altered action is not proper". Mr. Tongia went on to suspect some kind of fraud. Did Yama Group of Companies create charges? "No ... Mr. Tongia's evidence is crucial and raised doubts against the defendant", said Mr. Gora.