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State v Hore [1981] PGNC 75; [1981] PNGLR 536; N347 (18 December 1981)

N347

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MALALA HORE

Waigani
Kidu CJ

15 December 1981
17-18 December 1981

CUSTOMS AND EXCISE - Offences - Entering into collusive agreement with customs officer - Collusion - Same intent required of both parties - Customs Act 1951, s. 217.
EVIDENCE - Admissibility - Evidence obtained by improper means - If relevant and admissible no discretion to reject - Customs offence - Customs officer acting as agent provocateur.

On a charge under s. 217(b) of the Customs Act 1951, of making a collusive agreement with a customs officer to induce him in any way to neglect his duty, it is necessary to prove an agreement entered into by both parties and calculated or intended to induce one party (customs officer) to neglect his duty and where both parties have the same intention whether dishonest or deceitful or to flout the law.
Conlon v. Biggs [1943] SAStRp 26; [1943] S.A.S.R. 103 applied.

Held:

Accordingly, that where the customs officer who as part of a fraud squad customs surveillance team acted under instructions, there could be no intention to enter into a collusive agreement under s. 217(b).

A trial judge has no discretion to refuse to admit relevant admissible evidence merely because it has been obtained by improper or unfair means; the exceptions are admissions and confessions and evidence obtained from the accused after commission of an offence.
R. v. Sang [1979] 1 All E.R. 1222 followed.

Held:

Accordingly, that evidence of a customs officer who as part of a fraud squad/customs surveillance team had actively encouraged the accused in commission of an offence against the Customs Act should not be rejected, on a charge of attempting to influence that customs officer in the discharge of his duty.

Trial.

This was the trial of an accused on alternative charges under s. 217(b) of the Customs Act 1951. At the conclusion of the case for the prosecution his Honour ruled that there was no case to answer (the reasons for which appear at p. 538) on the first count and proceeded to verdict on the second count.

Counsel:

J. Byrne, for the State.
S. Cox, for the accused.

18 December 1981

KIDU CJ:

THE FACTS

The accused is a security officer with Civil Aviation. He works at Jackson’s Airport.
Sometime in December last year he met a man called George Kassas at Jackson’s Airport. Kassas was with another person. The day after they met Kassas asked the accused if he could get two suitcases out of the Customs. In the afternoon about 4.00 p.m. they met at Gateway Hotel. Over some drinks (beer) the accused was given K20.00 and asked again if he could get the two suitcases out. He told Kassas and Askin that it was difficult to get the cases out without knowing the tag numbers. The accused then left and went home. When the accused met Kassas and Askin again he was requested to try and get the two cases out. He was promised K100.00. He went to the baggage office but did not do anything. He returned to Kassas and Askin. They told him again that if he got the cases out they would give him K100.00.

Nothing happened until 27th January, 1981. The accused met Kassas and Abraham at Gateway Hotel. The next day he met the same people at Gateway. Unknown to the accused, he, Kassas and Abraham were under surveillance by a team of police and customs officers.

On 1st February, 1981 the accused met Campbell Tokiemota, a customs officer, at the airport. 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. While 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 could clear them but he wanted to be paid K140.00 because he was risking his job. The accused told Tokiemota K140.00 was too small. He suggested K1000. Tokiemota said he wanted between K800 and 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 while 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 Toburg 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. He had been acting under instructions all the time.

THE RULING ON NO CASE SUBMISSION

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. Cox submitted that there was no collusive agreement because Tokiemota had no intention of entering into one. He was, all along, an agent provocateur. 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, inter alia, as follows:

"217. Whoever—

(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;" (Emphasis mine)

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 Another1 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 A. Digest 1st ed., 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.

JUDGMENT

The accused was charged with two offences. I have ruled that he had no case to answer on the first charge but had a case to answer on the second charge which states:

"Malala Hore of Hamuhamu is also charged that he between the 1st day of February 1981 and the 9th day of April 1981 in Papua New Guinea by a promise of payment of cash to one Campbell Tokiemota, a Customs Officer, attempted to influence the said Campbell Tokiemota in the discharge of his duty as a Customs Officer."

The charge is brought under s. 217(b) of the Customs Act 1951, the relevant part of which reads:

"217. Whoever—

(b) ... promises, attempts to influence any officer in the discharge of his duty; ...

shall be guilty of an indictable offence and shall be liable to imprisonment with or without hard labour for any term not exceeding five years."

Before considering whether the evidence shows proof beyond a reasonable doubt of the charge, I deal with the defence submission that I should exercise my discretion and disregard the evidence given by the witness Campbell Tokiemota. Ms. Cox’s submission is that this witness and police had used the accused to get Kassas and Abraham. Tokiemota encouraged the accused. But for his encouragement, the accused would not be in court now. This submission should have been made when Tokiemota was called to give evidence three days ago. That was the appropriate time. In her submission Ms. Cox relied on what Lord Goddard C.J. said in Brannan v. Peek2 at p. 573:

"There is another point of much greater public importance. The court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasised that, unless an Act of Parliament provides for such a course of conduct—and I do not think any Act of Parliament does so provide —it is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow, or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence for the police constable in the present case to make the bet in the public house as it would have been for the bookmaker to take the bet if in doing so he had committed an offence. I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against someone; if they do commit offences they ought also to be convicted and punished, for the order of their superior would afford no defence."

She also relied on what the Lord Chief Justice said in R. v. Frank Alexander Birtles3 and what Cussen J. said in R. v. Burnett and Lee4. The three cases relied on were reversed by the Court of Appeal in R. v. Sang5 and the House of Lords in R. v. Sang6. Both the Court of Appeal and the House of Lords in Sang’s case held that a trial judge had no discretion to refuse to admit relevant admissible evidence merely because it had been obtained by improper or unfair means. The exceptions are admissions and confessions and evidence obtained from the accused after commission of an offence. Lord Diplock said, at p. 1231:

"I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case. ([1977] Crim. L.R. 104). A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. ([1973] Crim. L.R. 45). Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur."

Viscount Dilhorne in agreeing with Lord Diplock said at p. 1235:

"My answer to it has with my consent been incorporated by my noble and learned friend, Lord Diplock, in his speech and so I need not repeat it.

In my opinion R. v. Ameer, R. v. Lucas ([1977] Crim. L.R. 104), R. v. Foulder, Foulkes and Johns ([1973] Crim. L.R. 45) and R. v. Burnett and Lee ((1973) Crim. L.R. 748) were wrongly decided and this appeal should be dismissed."

Lord Salmon said, at p. 1238:

"Nevertheless, although entrapment is not a defence and therefore not a matter for the jury to consider on the facts, it is argued for the appellant that the same result can be achieved by the judge, in the exercise of a discretion, excluding all evidence of an offence which has been procured by an agent provocateur. If that were the law, it would be very remarkable, but I am satisfied that it is not so. In my opinion there is no doubt that, whatever discretion the judge may have in his conduct of a criminal trial, it could not extend so as to allow him to exclude the evidence in a case such as the present. I reach that opinion on two grounds. First, there are several reported cases in which the courts have expressed strong disapproval of the activities of agents provocateurs without suggesting that their evidence should be excluded: see for example Brannan v. Peek ([1947] 2 All E.R. 572, [1948] 1 K.B. 38) and Browning v. J. W. H. Watson (Rochester) Ltd. ([1953] 2 All E.R. 775, (1953) 1 W.L.R. 1172). Secondly, the relevant discretion of the judge is a discretion to exclude evidence because the evidence itself is objectionable on certain grounds. But the present case does not truly raise a question of evidence at all. On the assumed facts here, the evidence against the accused would not have been obtained improperly and would not be open to any objection as evidence. The objection to admitting it would be that the accused had been unfairly induced to commit the offence which the evidence tended to prove, and that would be in effect letting in the defence of entrapment. Accordingly I am of opinion that the evidence was rightly admitted by the learned judge in this case."

It has not been suggested that Sang’s case should not apply here. I have heard no arguments on it. For myself, I see no reason why this case cannot be applicable here.

What is the evidence that the accused by promising payment of money to the customs officer attempted to influence him in the discharge of his duty?

The evidence reveals quite clearly to me that the accused after being paid money (K20.00) and also being promised further payments, approached customs officer Campbell Tokiemota to release the two suitcases belonging to Kassas and his friends. He knew something was not right but he tried to help have the suitcases released by customs. He promised Tokiemota that money would be paid to him. The accused himself suggested K1,000. When Tokiemota said he wanted K800 to K1,000 the accused said nothing. But he arranged a meeting between Tokiemota and Kassas.

In my opinion the evidence shows that the promised money would be paid to Tokiemota in his endeavour to have the suitcases cleared. I consider it irrelevant who was to actually pay the money. I find him guilty as charged and convict him.

Verdict of guilty.

______________________________________

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor.
Solicitor for the accused: A. Amet, Public Solicitor.