N2531

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 1296 of 2003

THE STATE

V.

RAKATANI MATAIO
of POREBADA, KAIRUKU-HIRI, CENTRAL PROVINCE

Waigani: Davani, .J
2004: 16, 19, 20 April
11 May

CRIMINAL LAW – Particular Offences – Judicial Corruption by magistrate – "corruptly receiving or obtaining" by holder of judicial office – money given to magistrate with promise of more to come – s. 119 (1) (2) (a) of Criminal Code Act.

Cases and texts cited:
 State v Jackson Tina Toamara [1988-89] PNGLR 253
 State v Tom Morris [1981] PNGLR 493
 Robert Kaki Yabara v the State [1984] PNGLR 378 
 Allinson v General Council of Medicine [1894] 1 QB 750
 "Judicial Ethics in Australia" by Hon. Justice Thomas 
 Magistrates Code of Judicial Conduct
 Carters Criminal Law of Queensland Sixth Edition
 Chalmers Weisbrot Injia and Andrews "Criminal Law and Practice in Papua New Guinea"

Counsel:
J. Nidue for the State
S. Kemaken for the Accused

DECISION
(on verdict)

11th May 2004

Davani .J:	The accused is charged with one count of judicial corruption, charge laid pursuant to s. 119 (1) (2) (a) of the Criminal Code Act (‘CCA’). This provision reads:

"119.	Judicial corruption

(1)	In this section, "holder of a judicial office" includes an arbitrator or umpire.

(2)	A person who –
(a)	being the holder of a judicial office, corruptly acts, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of any thing done or omitted to be done, or to be done or omitted to be done, by him in his judicial capacity; or
…
is guilty of a crime.

Penalty: Subject to subsection (3), imprisonment for a term not exceeding 14 years, and a fine at the discretion of the court."

On arraignment the accused pleaded not guilty and the matter proceeded to trial. 

States allegations

The State alleges that the accused, a magistrate by profession, received from a litigant the sum of K150.00 to enhance the completion of the trial and to also ensure that the result was in the litigant’s favour.  I refer to the litigant throughout as the complainant.

State’s evidence

Of the 8 people listed on the indictment, the State called 4 to give evidence. Several documents were tendered into evidence by consent. 

The witnesses for the State were:

Andrew Sondo; 
David Pia;
Simon Tanga;
Kalau Doga Kemoa;

The affidavit of Ulagis Mantu sworn on 18.12.02; Rodney Pakalai’s statement dated 26.2.03 and the undated statement of Robert Volo were tendered into evidence by consent.

Witness Andrew Sondo; He is the complainant. He is a self-employed businessman who sells store goods and liquor. He resides at East Boroko and has been resident there for the last 10 years. He is from Wapenamanda in the Enga Province.

He has been running a liqueur selling business for 5 years and had a license to operate such a business. A copy of this license was produced in the court below. He was the defendant before the Boroko District Court on a charge under s. 98 of the Liquor Licensing Act for trading without a license. If found guilty, he would pay K1,200.00 as a fine. 

He said the police had filed the information in the Boroko District Court on the 2nd February 2002 and that the matter was continuously adjourned for various reasons for about 8 months. He explained that he had been charged for trading without a license but prior to that, the police had raided his store and confiscated 26 cartons of beer. He said on the 12.8.02 he went to court and noted that his matter was not listed as it should have been. He asked the court clerks where the court file was and was advised that the file was with the magistrate. The magistrate in this case is the accused. The magistrate took him to his office and told him of the seriousness of the offence, that if he was found guilty that he would be fined K1,200.00. The witness said on hearing this, he was confused. He told this court of his concern, that if he paid the court fine of K1,200.00 and remained on good behaviour, that could he get his 26 beer cartons and bail monies back? He said the magistrate told him that the beer cartons and bail monies would not be returned to him because these items would be forfeited by the State. The accused advised the complainant to meet with him on 20th February 2002.

On 20th February, the complainant said he went to court. He said the accused waited for him at the gate. He said the accused beckoned to him and told him to follow him to Brian Bell. They then went into a coffee shop and sat at a table. The accused asked him for some money and the complainant gave him K150.00. The complainant said the magistrate (or the accused) told him to bring him K350.00 later. He said he then immediately went to the police.

The complainant told the court that before he met with the accused, he photocopied the three K50.00 notes he gave to the accused. Those were the copies he presented to the police. Also in cross-examination, he told the court that he did not expect any favours from the accused. When asked why he reported the matter to the police if the accused had not promised to do anything for him, he said, "I did not tell the police at that time. I made photocopies, then I gave the money, then I told the police about the incident with the photocopy papers."

Witness David Pia; He is the complainant’s cousin. He said on 20.9.02, he went with the complainant Andrew Sondo to the Boroko District Court because he had heard Andrew Sondo’s case was to be heard by the court that day. He said he saw Andrew Sondo’s name on the list posted on the court’s notice board then he walked around the court house. He said he did not see Andrew Sondo at the court house but that, from the court house, he saw both Andrew Sondo and the accused cross the road to the Brian Bell building. He said he followed them at a distance and saw the both of them enter a coffee shop next to the necklace shop. He said they went to the far corner and sat there. He said he did not wish to disturb them and stood afar. He said he saw both of them talking then saw Andrew put his hands in his pocket and give, what he saw to be money, to the accused. He also said he could not hear what the accused and Andrew Sondo were talking about when they sat at the table together. 

Witness Simon Tanga; He is Andrew Sondo’s relative. He said on 20.9.02, he went to the Boroko District Court to sit in and observe Andrew Sondo’s case. It was at the court house that he saw Andrew Sondo and the accused walk to Brian Bell. He followed them and saw that the both went to the coffee shop in the Brian Bell building. They talked for about two minutes when he saw Andrew Sondo give the accused some money. They both left together. He said he did not see the amount of money given by the accused to Andrew Sondo and that he also could not hear the conversation between the two. 

Witness Thomas Bona; He is the Deputy Clerk of Court of the Boroko District Court, employed by the Magisterial Service and has been so employed for the last 11 years. He said he is very familiar with the functions of the District Courts. 

He informed the court that when a matter comes on for mention, it is adjourned for two weeks after which the matter is then set down for trial if the witnesses are available. He told the court that on 20.9.02 about 11.30 in the morning in the accsued’s chambers, the accused showed him cash of K150.00. The accused told him that the monies were given to him by Andrew Sondo, that he did not know what the monies were for and that he wanted to see Andrew Sondo and the Police Prosecutor. 

The witness told the court that the proper course would be for the accused to report the matter to the senior magistrate. He said whilst he was with the accused in his chambers, the police arrived, one Senior Constable Robert Volo. 

On questioning by the court, he told the court that he is familiar with Andrew Sondo’s file and that he knows Andrew Sondo by name and by face because the matter has been continuously adjourned on many occasions. He said the presiding magistrate in that matter was the accused. He said the final outcome of the matter was that the case was struck out for lack of evidence. He said magistrate Kapigeno struck out this case two weeks after the incident now before this court. 

Defence case

Defence only called the accused. He gave sworn evidence. His evidence is nearly the same as Andrew Sondo’s, that they met in Brian Bell and Andrew Sondo gave him K150.00. 

He said he had gone into Court 3 that morning and called out the complainant’s case but the complainant was not there so he stood the case over to 1.30pm. At lunch time, he walked out of the court precincts when he saw the complainant so he signaled or beckoned to him. He told the complainant that he had adjourned his case to 1.30pm. He then said the complainant told him that he had some money to give to him. That was when the accused told Andrew Sondo to go to the coffee shop in the Brian Bell plaza with him. He said the complainant Andrew Sondo gave him K150.00 and that he would give him K250.00 the next day.

The accused was also asked if he had been offered any money by any body else whilst performing his role as a magistrate. He said yes he had and that he had referred the money to his boss. This issue was not progressed any further, in evidence.

In cross-examination, it was revealed that both Andrew Sondo and the accused had met on three other occasions whilst the accused presided on or was presiding over this same case, involving prosecution under the Liquor Licensing Act. On the third occasion, Andrew Sondo and the accused went to his chambers. He said the first time Andrew Sondo spoke with him, he did not disqualify himself because "he did not take it seriously." I do not know what this expression means because evidence was not led on this.

He was asked why he approached the complainant to tell him that his case was at 1.30pm and that he was to preside. He told the court that Andrew Sondo had arrived late and because Andrew Sondo was "close to him" that he did what he did. No further evidence was led on this by either the State or the accused.

Analysis of evidence and the law

The State submits that the elements in s. 199 (1) (2) (a) of the CCA to be proven are that;

1.	The person concerned must be the holder of a judicial office;
2.	That he corruptly asks, receives or obtains any property or benefit for himself;
3.	On account of anything done or omitted to be done by him or to be done or omitted to be done in his judicial capacity.

Relating the evidence to the elements;

Element 1;
The accused was a magistrate when the alleged exchange of K150.00 took place, so he is the holder of a judicial office;

Element 2;
That he asked for money, which was given to him whilst he was presiding over a matter in the District Court involving the complainant, who was the Defendant which, in my view, satisfies the element that he corruptly asked for and received monies for his benefit.

Element 3;
That the matter was continuously adjourned to allow or to give the accused the opportunity to discuss the complainants case with him and to benefit from that exercise.

The accused does not deny that he received K150.00. The complainant’s evidence is that he was not expecting any favours when he gave the K150.00 to the accused. His evidence is that when the accused explained to him that the maximum fine for the offence he was charged with under the Liquor License Act was K1,200.00, that he was confused. He was not sure if after being fined, the police would return to him the cartons of beer that had been confiscated from his premises. But he expected that the accused would ask him for money which was why he took with him to the meeting, the K150.00.

The evidence also is that the complainants case had come before the accused on 7 occasions during the period 2.2.02 to 20.9.02 and on which the accused presided, always adjourning for one reason or another. He told the court that during the period, he had met with and spoken with the accused on four occasions, the last one occurring on 20.9.02, now the subject of these proceedings. He said prior to that, on 12.8.02, the accused took him to his chambers and gave him the explanation referred to above i.e the payment of the fine, and to see him again on 20.9.02. He was asked why he took the K150.00 with him on 20.9.02 and he said he believed the accused wanted some money.

It is not disputed that this meeting took place in a coffee shop above Brian Bell in Boroko and that the both men were seated at the back of the coffee shop.

The accused’s lawyer submits that there are 5 elements to the offence, rather than 3 suggested or proposed by the State. These are;

1.	That he is a judicial office holder;
2.	That he obtained something;
3.	For his benefit;
4.	On account of something done by him;
5.	Or omitted to be done by him.

Defence counsel submits the accused did not obtain any benefit from the K150.00. He submits further that the term "on account of anything done by him," relates to the accused’s judicial duties and which he interpreted to mean that the accused did not perform the favour that may have been expected of him, i.e. of ruling in favour of the complainant.

The case of Robert Kaki Yabara v the State [1984] PNGLR 378 is a case involving an accused who was charged under s. 119 (1) (2) (b) of the CCA, that he gave to a judicial officer the sum of K140.00, for the judicial officer to find in his favour. The court found him guilty in the trial court and the Supreme court confirmed conviction and sentence.

Comparing the Yabara case with this case, the Yabara case involved a public servant who attempted to bribe a magistrate whereas in this case, it is a serving magistrate who asked for money from a defendant in a case he is presiding over and that he had yet to decide on. Reverting to submissions by both counsel on the element of "doing something" or "omitting to do something", I agree that as held in Yabara;

1.	For the purpose of establishing the offence of "giving" a benefit or attempting to "give a benefit" (s. 119 (2) (b) of the CCA) which, in relation to s. 119(2)(a) of the CCA, I interpret to mean "corruptly asks, receives or obtains" "any property or benefit for himself" "on account of anything done" or "to be done by him in his judicial capacity", that the accused’s state of mind as to whether he "corruptly asks receives or obtains" is determinative. The evidence in relation to this is the magistrate’s several adjournments of the case and his continuing to sit on the matter; his several conversations with the accused both in chambers and outside, suggests to me that he corruptly asked for and received the K150.00 and with a further K250.00 or K350.00 still forthcoming.

I will discuss the word "corruptly" below.

2.	That the fact that he asked for the K150.00, received it and placed it in his wallet, is evidence of a complete offence; 

3.	That he was at that time the presiding magistrate.

This is a magistrate who is very much aware of his duties as an officer of the court and a professional. The leading authority on this is Allinson v General Council of Medicine [1894] 1 Q.B. 750 at 761, 763 where it was considered that general misconduct would be established "if it is shown that a (medical) man, in the pursuit of his profession, has done something with regard to it which would reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency …". That test came to be regarded as equally applicable to a solicitor (see Re a Solicitor [1912], R.B. 302) referred to in the text "Judicial Ethics in Australia" by the Hon. Mr Justice Thomas, a judge of the Supreme Court of Queensland. In that same text, His Honour said at pg 10.

"Indeed it applies equally to all professions, resting on what the professional peer group regards as substantially outside the acceptable standard of behaviour. Such an approach is not a narrow one depending upon a particular term such as "professional misconduct", and it is not limited to conduct in the course of professional practice. A similar approach is now taken in determining whether a person has been guilty of "unprofessional conduct", malpractice, or unethical conduct deserving of discipline. Such conduct is that which "violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency". (see Ex parte Attorney-General (6th); Re a Barrister and Solicitor (1972) 20 F.L.R. 234 AT 242 – 243, 245 – 246. Any professional body is itself conscious of the need to retain public confidence. It seems clear that this broad, adaptable yet objective standard is the one that must be applied in determining whether a person has breached ethical standards."

The evidence before me on this aspect in that a judicial officer whilst presiding over a case, had spoken to the Defendant in that case on 3 occasions. The subject of these discussions was the Defendant’s case. Having done that, he continued to preside and deliberate over the matter. That clearly is a breach of ethical standards that the accused as a magistrate must always maintain. The public come to the courts for reprieve and are assured, before filing their complaint, that the courts will deal with their complaint fairly, without fear or favour. They know that the courts are the last bastion in a sea of uncertainty because that is where fair justice is meted out. In fact, to a lot of them, the courts are the last and final resort to solving their problems and which decisions in most cases, they respect and will adhere to.

The magistracy here in Papua New Guinea have a Code of Judicial Conduct which governs their conduct both in and out of court. This document, the Magistrates Code of Judicial Conduct (the ‘Magistrates Code’) "is intended to state basic standards which should govern the conduct of all magistrates and to provide guidance to assist magistrates in establishing and maintaining high standards of judicial and personal conduct." (see preamble to the ‘Magistrates Code’).

In fact, the same preamble sums up the principle of a fair judicial system "…that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to our concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that Magistrates, individually and collectively, must respect and honour the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The Magistrate is a symbol of government under the rule of law."

The Magistrates code sets out rules which magistrates must adhere to when conducting their practice, some of which are;

"Rule 1-	A magistrate shall uphold the integrity and independence of the Judiciary
Rule 2-	A magistrate shall avoid impropriety and the appearance of impropriety in all of the magistrate's activities
Rule 3-	A magistrate shall perform the duties of judicial office impartially and diligently."

Prima facie, I can say the accused is in breach of the above rules.

As to the charges, whether the accused "corruptly" received the K150.00 or not, must be determined by the court. I discuss the definition of the word "corruptly" both as applied in the common law jurisdictions and in Papua New Guinea.

In Carters Criminal Law of Queensland Sixth Edition at paragraph 84 (pg. 135), the word ‘corruptly’ is defined and discussed. It states; 

"A person acts "corruptly" if he offers a fee or reward deliberately and with the intention that the person to whom the offer is made should enter into a corrupt bargain even if the offeror himself has no intention of carrying out the transaction and accepting the favour which he has sought. (see R v Smith [1960] 1 All ER 256; 44 Cr App R 55; [1960] 2 QB 423). In R v Wellburn, Nurdin and Randel (1979) 69 Cr App R 254 it was held that a recorder had correctly directed the jury that "corruptly" was a simple English adverb which meant purposely doing an act which the law forbade as tending to corrupt. In R v Small (1903) 5 WALR 85 where on a charge of an attempt to bribe a detective officer on a specified date, evidence of a similar attempt on an earlier date was held to have been rightly admitted.

See R v David [1931] QWN 2; 25 QJPR 15 (gift to police constable to induce him to destroy evidence); R v Whitaker [1914] 3 KB 1283; 10 Cr App R 245 (bribing a public officer) where it was held that "a public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly to if he is paid out of a fund provided by the public".

The word "corruptly" is discussed in the text "Criminal Law and Practice of Papua New Guinea" by Chalmers Weisbrot Injia and Andrews at pg 223 where they refer to the case State v Jackson Tina Toamara [1988-89] PNGLR 253. In that case, Brunton A.J said:

"The meaning of the word "corruptly" in law is confused. It is an undefined adverb… There is one line of English cases which says that "corruptly" means dishonestly…There is another line of English cases which says that "corruptly" does not mean dishonestly but in purposely doing an act which the law forbids"…The ordinary meaning of the adverb "corruptly" is wider than "dishonestly". Dishonestly may certainly be an ingredient of corruption, but the concept is wider. Corruption can be achieved by pollution, subversion, or the undermining of a concept, institution, or material. When the word "corruptly" is used with persons, as in s. 120(I) –" A person who… corruptly…receives" – then the ordinary use of the word implies immorality, depravity and dishonesty. When the word is linked with the taking of bribes, "corruptly" is closer to dishonesty as a concept than it is to immorality or depravity…[T]he State…must prove an element of dishonesty. Dishonestly is a somewhat firmer concept than corruptly, although it, too, is an underlined adverb, and can lead itself to circularity."

The accused’s explanation that he would give the money to his boss and that he did not have time to place it in his file does not hold, principally because there was a promise of more moneys to be paid. Not only that, the chain of events suggest that the accused had always intended to benefit from this case by his actions i.e. his continuous adjournments of the case, his several meetings with the complainant in his office and outside whilst he was the presiding magistrate and the matter was pending before him and his receiving the monies. It of course suggests to this court that if the complainant had not reported the matter to the police, that the accused probably would not have shown the money to the Clerk of Court, that he would have adjourned the case again, and that he would have received the additional K250.00 or K350.00 that he requested, that the circumstances or events portray the very high likelihood of the accused continuing to benefit monetarily. That in itself is an element of "dishonesty" (see State v Jackson Tia Toamara (supra) discussion in Criminal Law and Practice in Papua New Guinea (supra)).

A prudent magistrate would have disqualified himself from the beginning i.e. when the complainant first approached him. The public perception of the judiciary must not be tainted in any way. The accused’s actions are themselves a breach of the magisterial ethics and a breach of faith – that the public will lose faith in the judiciary or magistracy. That should not be allowed to happen.

The State has also submitted that the court rely on circumstantial evidence to reach the conclusion that the accused is guilty. The law on circumstantial evidence is established and is that where the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused (see State v Tom Morris) [1981] PNGLR 493). The accused’s guilt should be the only rational inference that the circumstances would enable the court to draw and that will apply after the court has considered all the evidence to then safely hold that it is the only rational inference it can draw. The circumstances before me allow me to conclude that there is no other reasonable hypothesis other than the guilt of the accused.

On the evidence, the accused has "corruptly acted, receives or obtains" the K150.00 with K350.00 or K250.00, at least some more money, still forthcoming.

This court finds that the State has proven beyond reasonable doubt the charge of Judicial corruption laid against the accused, charge laid pursuant to s. 119 (2) (a) of the CCA.

The accused is guilty of the offence of Judicial corruption.
____________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the accused	:	Kemaken Lawyers