Unreported National Court Decisions
N346
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
MALALA HORE
Waigani
Kidu CJ
15 December 1981
17-18 December 1981
NO CASE SUBMISSION - “Collusive agreement” under s.217(b) of the Customs Act 1951.
RULING ON NO CASE SUBMISSION
KIDU CJ:  At the conclusion of the case for the prosecution last Tuesday it was submitted by Ms. Cox, counsel for the defendant, that her client has no case to answer. She urged that I should make this ruling because on the evidence before me I could not lawfully convict the accused.
The two counts in the indictment are in the alternative. On the first count Ms. Cox submitted that there was no evidence that the accused entered into a collusive agreement with customs officer Campbell Tokiemota.
The first time the two met was on 1st February, 1981. On that occasion all that transpired was that the accused told Tokiemota that he had met two friends who had two suitcases to be cleared with customs. The next day (2nd February, 1981) the two met again at the Customs Training Centre, Konedobu. On this occasion the accused told Tokiemota that one of his friends (George) would be coming up from Sydney to take delivery of the two suitcases. The two friends (George Kassas and Brian Askin) had promised him some money. Nothing else was said. Then nothing else happened until 8th March, 1981. The accused and Tokiemota met at Jackson’s Airport. The former invited the latter to have coffee with him. Before having coffee Tokiemota asked whether the accused had heard any news from his friends The accused told him to forget the matter.
On 12th March, 1981 the two met again at the airport and had lunch together. After lunch they bought some beer and went to the Customs Training Centre. There Tokiemota again asked the accused whether his two friends still wanted the suitcases. The accused answered in the affirmative and also said that they were coming up to get them. Tokiemota then told the accused that if they wanted the suitcases he would clear them but he wanted to be paid K150.00 because he was risking his job. The accused told Tokiemota K150.00 was too small. He suggested K1000. Tokiemota said he wanted between K800 to K1000. To this the accused made no reply.
The next time the two met was on 7th April, 1981. On this occasion Tokiemota inquired about the accused’s two friends and was told to forget them. Then a little later the two went to the airport tower building. There the accused then asked Tokiemota to check the two suitcases and see if they had Middle East markings on them. At lunch time that day the two met again and Tokiemota informed the accused that the suitcases did have Middle East labels on them. Tokiemota then told the accused the best time to pick up the suitcases was 3.00 p.m. and that they had to pay him before the suitcases were picked up. The accused said he would see about it.
On 8th April, 1981 the accused went to the Air Niugini Cargo building and inquired where Tokiemota was and was told by Tobung that he was inside. The accused saw Tokiemota and the two then walked down to the airport terminal building. The accused had told Tokiemota his friend (George Kassas) was waiting outside that building. Tokiemota met Kassas. The accused was not present.
In the evening, about 7.15 p.m., the accused went to the Customs Training Centre and asked Tokiemota whether George (Kassas) had given him any money and Tokiemota answered ‘no’. Whilst the accused was there police arrived and took him away. Tokiemota said Kassas had given him K60.00 and he had given this money to his supervisor, Senior Customs Inspector Frank Barara. Throughout all these encounters, Tokiemota had been part of a Fraud Squad/Customs surveillance team. As far as he was concerned he was not going to neglect his duties or was he going to be influenced in the discharge of his duties.
The collusive agreement allegedly made by the accused and Customs Officer Tokiemota, is that for a consideration (the payment of a sum of money) Tokiemota was to clear two suitcases belonging to the accused’s friends George Kassas and Brian Askin.
Ms. Cos submitted that there was no collusive agreement because Tokiemota had no intention of entering into one. He was, all along, an agent provacateur. He was under instructions to do what he did. Ms. Cox submitted that for a collusive agreement to exist there must be intention on the part of both parties to effect such an agreement. Here Tokiemota had no such intention. The Act does not define the terms “agreement”, “collusive” or “collusive agreement”. However, it is obvious what is meant by a collusive agreement in the context the words are used. Section 217(b) reads, enter alia, as follows:
“217.   Whoever:
(a)      ......;
(b)      gives or procures to be given, or offers or promises to give or procure to be given, any bribe, recompense or reward to or makes any collusive agreement with any officer to induce him in any way to neglect his duty, or who, by threats, demands or promises, attempts to influence any officer in the discharge of his duty;
(c)      .......
(d)      .......”
The collusive agreement must be one entered into by both parties and calculated to induce one party (Customs Officer) to neglect his duty. I consider what Mayo J. said in Conlon v. Biggs and Another[dccclv]1 relevant on this point:
“To be a ‘collusive sale’ it must have some secret term or aspect designed for the purpose of deceiving or imposing upon the mortgagor, or other the person entitled to redeem, and defeating his interests in some way. Compare Brine v. Brine ((1924) S.A.S.R. 433; 14 Australian Digest 154). Under other legal systems ‘collusion’ has been defined as ‘a fraudulent arrangement between two or more persons to give a false or deceptive appearance to a transaction in which they engage’ (Black’s Law Dictionary).”
The evidence before me shows that there was no intention on the part of Tokiemota to enter into a collusive agreement with the accused. In my view for a collusive agreement to exist both parties must have the same intention, whether dishonest or deceitful or to flout the law.
I rule that the accused has no case to answer on the first count and I acquit him of this charge.
Ms. Cox also submitted that there was no evidence of inducement to neglect duty on the part of Tokiemota. Section 217(b) does not say that a Customs Officer must be actually induced to neglect his duty. I read it as meaning that the collusive agreement is calculated or intended to induce a Customs Officer to neglect his duty.
Ms. Cox made submissions in relation to the second charge similar to those she made in relation to the first charge. I have no hesitation in ruling that there is a case to answer on this second count. The accused made promises to Tokiemota that money would be paid to him if he cleared the two suitcases. It was, on the evidence, apparent that money was to be paid by the accused’s two friends Kassas and Askin. I cannot see that this makes any difference. The evidence shows that he was acting as agent for Kassas and Askin. He had been paid and had been promised further payments to have the Customs clear the two suitcases. The case must proceed on the second count in the indictment.
Solicitor for the State: L. Gavara-Nanu, Public Prosecutor
Counsel: J. Byrne
Solicitor for the Accused: A. Amet, Public Solicitor
Counsel: S. Cox

[dccclv](1943) S.A.S.R. 103