Yabara v The State [1984] PNGLR 378 (27 November 1984)

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CRIMINAL LAW - Particular offences - Judicial corruption - “Giving” benefit to magistrate - Effect on act in “judicial capacity” - “Judicial proceeding” - Effect on mind of recipient irrelevant - Magistrate hearing committal proceedings holder of “judicial office” - Money placed on magistrate’s table - Conviction properly recorded - Criminal Code (Ch. No. 262), ss 118, 119.

CRIMINAL LAW - Sentencing - Offender Member of Parliament - Offence of judicial corruption - Responsibility to uphold law outweighing other factors.

Section 119 of the Criminal Code (Ch. No. 262) provides for the offence of judicial corruption where any person “corruptly gives, confers or procures or promises ... to, on, or for any person holding a judicial office, ... any property or benefit on account of any act or omission [anything done by him in his ‘judicial capacity’] on the part of a person holding the judicial office”.

Section 118, defines “judicial proceeding” as including “any proceedings had or taken in or before any court, tribunal or person, in which evidence may be taken on oath”.

A Member of Parliament who was charged with seven offences of false pretences in relation to committal proceedings for which he had appeared before a magistrate of the District Court placed an envelope containing K140 in cash on the magistrate’s table. He was convicted of an offence contrary to s. 119 of the Criminal Code and sentenced to four years imprisonment.

(1) For the purposes of establishing the offence of “giving” a benefit or attempting to “give a benefit” under s. 119 of the Criminal Code, it is the state of mind of the accused at the time of the alleged offence which is determinative and the state of mind of the recipient is irrelevant.

(2) Accordingly, the fact that money in an envelope was placed on the table before a magistrate was sufficient evidence of a complete offence, regardless of whether the magistrate accepted the money or not.

(3) (Kaputin J. doubting) For the purposes of s. 119, a magistrate of the District Court hearing committal proceedings, is a person holding a “judicial office” and acting in a “judicial capacity”.

(4) For the purposes of establishing the offence under s. 119, not only must the person approached hold “judicial office” but he must be asked to effect some end favourable to the accused by acting in his judicial capacity, that is, carrying out his judicial functions.

(6) That the appellant is a Member of Parliament and had a heavy responsibility to maintain the law out-weighed other sentencing considerations and the sentence could not be said to be inadequate.

This was an appeal against conviction and sentence on a charge of judicial corruption contrary to s. 119 of the Criminal Code (Ch. No. 262).

PRATT J: This is an appeal against conviction and sentence before the National Court on a charge that on a named date the appellant “corruptly gave to one Clement Malaisa then being a magistrate of the District Court in Port Moresby the sum of K140 in consideration that the said Clement Malaisa, in his judicial capacity aforesaid, would show favour to the said Robert Kaki Yabara in a criminal prosecution between the Police and Robert Kaki Yabara of Chuave.” The section relied upon is s. 119 of the Criminal Code (Ch. No. 262). Apart from the appeal against sentence there were five main grounds of appeal against conviction. It turned out on the day, that ground 2, namely, “proof of the appointment of Mr Clement Malaisa” was abandoned. Suffice it to say in my view that on the first ground of appeal namely, “the learned trial judge, in his summing up, failed to direct himself on the question of whether the evidence of the State witnesses was sufficient in law to constitute the offence” must fail. The argument was really that the learned trial judge had failed to direct himself adequately on the onus of proof. It is true that his Honour refers to either believing the magistrate’s evidence or believing the evidence of the appellant. However, at that part of his judgment his Honour is not really adverting to the onus of proof at all, but is merely pointing out that no matter what the remainder of the evidence in the case can or cannot do if he does not accept the evidence of Mr Clement Malaisa, then the whole of the prosecution case falls to the ground. With that assessment I would respectfully agree and I do not consider his Honour has fallen into any error in pointing out the obvious fact that either one or the other witness is telling the truth. This is not the same as the situation where a judge fails to direct himself, or a jury, that in the ultimate they have to be satisfied beyond a reasonable doubt of guilt and in so doing to constantly call to mind that it is not merely a question of saying one or the other witness is lying, but may also be a question of being uncertain as to who is telling the truth. I do not perceive the learned trial judge to be dealing with this area of the law at all. In my view this point of appeal is misconceived.

As I said ground 2 has been abandoned, so I now come to ground 3. I again see no merit in the contention that the “State’s evidence when accepted disclosed merely an attempt to give Mr Malaisa the sum of K140 in cash”. The argument was developed that because Mr Malaisa did not accept the money then somehow or other, this has an effect on the “giving”. I am afraid I am unable to appreciate the point being made by counsel here. It is what is in the mind of the accused at the time he put the envelope on the table which has to be determined by the learned trial judge, and not what was in the mind of the learned magistrate who was the receiver. Indeed I think that the whole weakness of learned counsel’s argument here is disclosed when he in effect had to admit himself that for the point to succeed it is necessary to show not only is the accused guilty of felonious intent but so is the receiver. This is simply not what s. 119 deals with, and I do not think the point can be upheld.

The fourth submission is there was no real evidence of any criminal prosecution between the police and the appellant, except for Mr Malaisa’s testimony that the appellant had appeared before him three times in relation to seven charges of false pretences which he, Mr Malaisa was to deal with by way of committal proceeding. Frankly, I cannot see that the production, say of the information, the court’s working sheets and perhaps the affidavits in support of the charges could have advanced this matter one step further. The simple fact is, that the learned magistrate did say that he had been dealing with the appellant by way of committal proceedings in respect of false pretences charges and this statement was in no way challenged by the defence during the trial. Even if it had been challenged, the most that the production of the documents or material could have done, would have been in some way to corroborate the learned magistrate’s statement. In any case, I think it is far too late in the day for this particular type of point to be taken now. The time for such a point to be made was at the trial and not on an appeal. However, that is not the essential matter. The essential point is there was adequate evidence of a criminal prosecution on the record, and the learned trial judge specifically referred to that material.

I now come to the fifth ground of appeal wherein Mr Gawi has mounted an intriguing argument based on the general proposition that because the task of a magistrate in committal proceedings is primarily an administrative one rather than a judicial one, and as “Mr Malaisa was acting in his executive capacity rather than in his judicial capacity”, in relation to the proceedings already instituted against the appellant, therefore the charge cannot be sustained because Mr Malaisa was not acting in a judicial capacity. In short, he was performing an administrative task and not a judicial one. I think that fairly sums up point 5. The section itself reads as follows:

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

(a) being the holder of a judicial office, corruptly asks, 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

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for any person holding a judicial office, or to, on, or for any other person, any property or benefit on account of any such act or omission on the part of a person holding the judicial office,

The submission depends upon a fairly narrow interpretation of the role of a committing magistrate which has been set out at some length for example by the Full Court of New South Wales, firstly, in the case of Ex parte Cousens; Re Blacket [1946] NSWStRp 36; (1946) 47 S.R.(N.S.W.) 145; 63 W.N. 228 and the later authority Ex parte Coffey; Re Evans [1971] 1 N.S.W.L.R. 434. I note also that the High Court of Australia in Huddart Parker and Co. Pty Ltd v. Moorehead [1909] HCA 36; (1909) 8 C.L.R. 330 at 357 cited by Mr Gawi, approves the traditional approach to a committal proceeding as being one which is primarily administrative and not as “an exercise of judicial power”; that is an exercise of power which “does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action”.

That counsel for the appellant has sought to embark into a veritable sea of difficulty can be demonstrated immediately, for example, by reference to such learned dissertations in connection with prerogative writs and administrative acts by such authors as de Smith in his Judicial Review of Administrative Action, (4th ed.), at 383 and onwards. One of the judges of our own National Court here had reason to examine this very area a little earlier this year when application was made to quash certain committal proceedings before McDermott J. (I refer here to State v. Rush; Ex parte Rush [1984] P.N.G.L.R. 124). I tend to the view expressed by McDermott J. that the better line of authority now is, that orders in the nature of prerogative writs can apply to committal proceedings. But it is certainly not necessary for us in this Court to decide that issue. What we have to decide is, firstly, whether the person approached held judicial office and secondly, whether he was acting in a “judicial capacity” in relation to the act or omission which it was hoped to influence. It is therefore not necessary for this Court to decide whether or not committal proceedings are open to the application of prerogative writs or administrative review. This particular aspect was not argued before us.

Even in the Cousens’ case, the Chief Justice, Sir Frederick Jordan, commented upon the fact that the task of the committing magistrate is “essentially an executive and not a judicial function”; (my emphasis). The reason why the court emphasised the “essential” element in the task is simply because there will occur a number of occasions during such performance when the committing magistrate must apply his mind judicially to matters in hand and make rulings in accordance with rules of evidence and procedure. In short, even if one accepts the role as primarily administrative this does not exclude the necessity to act judicially during that period.

Also one must not overlook the fact that under s. 101B of the District Courts Act 1963 it is “a court” which performs the function — in accordance with whether or not the defendant is represented and counsel for the defendant has made submissions in respect of the sufficiency of the evidence placed before the magistrate on affidavit. In other words, one of the additional factors which we have to bear in mind is that it is not what a magistrate does in committal proceedings, it is what a court must do. I think that must have a bearing on the type of overall function which is being performed in Papua New Guinea. Surely a court is required to act at all times “judicially”.

I agree with Mr Gawi that there is a clear distinction in the Criminal Code between someone who is a justice “acting judicially”, as referred to in s. 119 and someone who is a justice “not acting judicially”, mentioned in s. 120. As was mentioned during argument, I think what s. 120 does is clearly to take account of the fact that there are a number of purely administrative tasks which may have to be performed by a magistrate such as writing up a notice of committal, physically making up the warrant of arrest, making out purchase orders to cover acquisition of office property and completion of accommodation warrants when on circuit. Those are tasks in which the person holding judicial office would not be acting judicially.

There is another reason why it is not necessary to become enmeshed in the intricacies of whether or not committal proceedings are regarded as an administrative function, and thus subject to the prerogative writs or the supervising powers of the superior courts. I agree with the learned counsel for the respondent that one must not lose sight of the terminology and context under examination namely, the terms “judicial office holder” and acting “in a judicial capacity” as used in s. 119 of the Criminal Code. I do not think there was any serious attempt to establish that the magistrate was not the holder of a judicial office after ground 2 was abandoned. He is clearly the holder of a judicial office — the essential thing is whether or not the bribe was for the purpose of attempting to influence Mr Malaisa in the performance of his judicial functions, namely, in deciding whether or not he should commit the appellant for trial. The bribe might even have been an attempt to influence him on the admission of evidence, or to rule in the appellant’s favour when any point of law arose.

As pointed out during argument there was no definition either in s. 119 or elsewhere in Divn 5 of the term “judicial capacity”. It seems to me that such a definition is quite unnecessary in view of the fact that the drafters of the Criminal Code have carefully defined for us what constitutes a “judicial proceeding”, namely, “any proceeding had or taken in or before any court, tribunal or person, in which evidence may be taken on oath”: see s. 118. It would seem to me that any court, tribunal or person who conducts or presides over a judicial proceeding does so by very virtue of that fact that he is acting in a judicial capacity. In short, it was unnecessary to define “judicial capacity” because this has already been done by way of the definition for “judicial proceeding”. So whether or not under the ordinary common law the act of committing someone for trial can be said to be primarily administrative or judicial, and whether or not the judicial element in such proceeding is sufficient to constitute action in a “judicial capacity” is really not the issue in the case before us. What is in issue before us is whether or not the man was acting in a judicial capacity within the ambit of s. 119.

I think one further point needs mention at this stage. In s. 119(2)(b) reference is made to “any such act ... on the part of a person holding the judicial office”. The term “such act” can only refer to the act mentioned in the earlier par. (a) namely, “something done by him in his judicial capacity”. After all if it were not an act done in his judicial capacity, the fact that he held judicial office or not would be irrelevant. Therefore, I agree with the appellant’s counsel (I do not take the respondent’s counsel to submit to the contrary) that not only must a person approached hold judicial office but he must be asked to effect some end favourable to the accused by means of acting in his judicial capacity, that is carrying out his judicial functions.

There is no doubt that the material upon which a magistrate acts by way of committal under the present District Courts Act is material taken on oath. What he must do is examine various affidavits and in fact that was exactly what the learned magistrate was doing when the appellant entered his office on 16 August. I have no doubt, as I said during submissions, that the affidavit he was reading was an affidavit in connection with the committal proceedings against the appellant, although I agree with Bredmeyer J. that it really matters not whether he was reading those affidavits or a learned article in one of the law journals. The point is he was being asked, according to both the prosecution case, and the trial judge’s decision, to take a particular attitude in his judicial capacity which would favour the appellant in return for money given because that capacity was being utilised in a judicial proceeding as defined in s. 118.

In the ultimate therefore I am not prepared to accept the appellant’s argument merely because some courts still hold to the old view that committal proceedings are essentially an administrative act, even though they do involve some judicial process. Consequently, I do not agree in the circumstances before us that a conviction under s. 119 is invalid. Had the conviction in fact been for an offence under s. 120 as the more appropriate section urged upon us by the learned counsel for the appellant, I think that any appeal against a conviction would be on much stronger ground.

Consequently, I would dismiss all the five grounds mentioned in support of an appeal against conviction.

In the application for leave to appeal against sentence, this Court has been greatly assisted by the detailed and explicit reasons set out by the learned trial judge. There is nothing which his Honour has stated in that judgment with which I would disagree. It is not necessary to traverse here the principles upon which a Court of Appeal would interfere with a sentence imposed in the original jurisdiction, and indeed counsel, properly in the circumstances, did not attempt to do so. Suffice it to say that there was no demonstrable error in principle, nor in my view is the sentence of such of an excessive nature which of itself indicates a demonstrable error. It is not for this Court to substitute its own opinion for that of the trial judge.

The maximum imprisonment for this offence is fourteen years. I notice with some interest that the period is reduced to seven years where the judicial authority is an arbitrator or an umpire. Perhaps persons acting in such capacity are not regarded as quite so judicial as a magistrate or a judge. In my view, the differentiation in sentence affords a further example of how widely it is intended one should construe s. 119 especially in the area defining “judicial office” and “judicial capacity”.

We are not dealing with a simple villager. Indeed we are dealing with someone who occupies a position which is called by many a “leader of the people”. Perhaps nowhere else have politicians been so politely termed or naively described.

Whatever the term used it is undoubtedly a fact that he is a member of a body which makes laws on behalf of the people to be administered through the judges and magistrates of the land on behalf of the people. He himself is part of the law-making process. He is a lawmaker.

It is difficult to envisage a more heinous crime on the part of a Member of Parliament. It is he who makes the law but when it is sought to apply the law to him he tries to buy his way out.

It is difficult to envisage any other situation quite so guaranteed to bring both the legislative and judicial arms of Government into disrepute and contempt if rumours were to start in place X about a Minister or Member of Parliament who managed to avoid a proper trial because he has paid the bench to give a favourable decision to him. If such occurrences became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law. As the Clifford Report says at 69 of Vol. 1 (Law and Order in Papua New Guinea (1984) Clifford, Morauta and Stuart):

“Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilises to deal with it, the action is often too little and comes too late.”

What may be said about easy money in my view, has even greater relevance when it becomes easy justice, purchasable justice. A cancer of course utterly destroys — sometimes over a long period, sometimes a short period, and nearly always painfully.

I am aware of the various theories concerning corruption listed in the Clifford Report from the sophistry of Strathern on village courts to the analyses based on more objective approaches mentioned at 76. But neither the trial judge nor this Court is faced with mere theory. We have a person holding one of the highest trusts possible in a democratic society abusing both that trust and his position not in just a purely commercial transaction, bad as that undoubtedly is, but over a person who has equally sworn to uphold the law without fear or favour to any man. Such impartiality is the very foundation of a free society.

The responsibility of a Member of Parliament is a great one. It is certainly an equally great evil to trample on that responsibility.

It is not a matter of giving away to lust on the spur of the moment as may be said in a comparative sense in the case of Jaminan cited to us. The actions of the present appellant took planning and gall. I believe the State is correct when counsel emphasised the brazenness of the act and refused to accept any element of niaivity. I think the appellant had become saturated with his own self-delusions to a degree which interfered with rational thinking. He overlooked the fact that there are many incorruptible people in Papua New Guinea. Fortunately for society he came across just one such.

Of course the status and perquisites which the appellant enjoyed are now lost to him together with the respect for his position which is properly rendered to one whose service is for the good of the general public. However, any eminent person in our society would be in the same position if he had committed a similar offence be it a lawyer, doctor, accountant or senior public servant. The appellant’s fall is great and hard. That is simply a natural corollary of the privilege and prestige of his former high position. The stakes were very high, but it was he himself who threw the dice — no one else — and he lost. I do not believe the appellant has any ground for complaint with the sentence of four years imprisonment.

BREDMEYER J: I agree generally with the reasoning of the President of this Court, my brother, Pratt J., and with the orders which he proposes.

I want to say a few words on conviction. I agree particularly with Pratt J. on everything he said in dismissing the first four grounds of appeal. They were grounds of appeal on the facts and I consider there were no merits on those whatsoever. On the fifth ground which was a legal argument — that the accused should not have been convicted under s. 119 because his conduct comes under s. 120 — I agree generally with what my brother, Pratt J. has said. I do not think it is necessary to look at the case law, and in particular to be carried away by the two New South Wales decisions. They are two leading decisions but there are contrary decisions in England, Canada and Queensland mentioned by McDermott J., in his judgment quoted. The New South Wales cases are not binding on us and they do not convince me by their reasoning. It seems to me that one need not look at the cases because the answers to the questions are clearly given in the sections themselves.

Section 119(2)(b) mentions a number of phrases. The person concerned must be “the holder of a judicial office”. There is no doubt in this case that the magistrate, Mr Malaisa, was the holder of a judicial office. Secondly, he must have been given money or property on account of some act or omission done by him or omitted to be done by him in his judicial capacity. The phrase “judicial capacity” is not defined in s. 119, but I believe it is by inference. In s. 118 the phrase “judicial proceeding” is defined, and includes any proceeding held or taken before any person, court or tribunal in which evidence may be taken on oath. The magistrate was receiving evidence on oath in the committal process so he was thus engaged in a judicial proceeding. It seems to me as a matter of language, that any person conducting “a judicial proceeding” as it is defined in that section must be acting in “a judicial capacity”.

In the course of a committal, the magistrate has to perform a number of tasks. Although one may, if one follows the New South Wales cases, regard the overall task as an administrative inquiry, because he does not determine the rights of any persons, nevertheless, in the course of that inquiry, there are a number of judicial functions to be exercised. Whether evidence is admissible or not is a judicial function and at the end of the committal the decision to commit or not is very much a judicial function. The magistrate must only have before him evidence which is admissible. He must reflect on the elements of the offence. He must weigh the evidence, the evidence for the prosecution and for the defendant, and come to a decision whether there is sufficient evidence to put the defendant upon his trial for that charge or for some other charge. When he does that task, he is very much performing a judicial task, acting in a judicial capacity. It seems to me that any bribe offered to him is directed to him not to commit, and I can readily infer that this bribe was offered to the magistrate to induce him not to commit the defendant for trial. In other words, it was to interfere with him acting in a judicial capacity. So I think this fifth ground of appeal fails. The appellant was rightly convicted under s. 119; he was rightly charged and rightly convicted.

On the matter of sentence, I agree with my brother, Pratt J., that the trial judge went into the matter of sentence most carefully and made no errors and I agree with what the trial judge said on sentence and on the sentence he imposed. It is true, as Mr Gawi argued, that this offence is not prevalent, indeed this is the first one of its kind, so there should be no extra or heavier punishment given because it is a prevalent offence; but nevertheless, the seriousness of the offence and the nature of the offender are very pertinent matters in fixing a sentence. And I agree entirely with the trial judge when he said, “The higher one’s position the greater one’s responsibilities”. In colloquial terms, “big men fall hard”. Those who make the law and administer it, Members of Parliament, Ministers, judges, magistrates, lawyers, policemen, clerks of court and village court officials should be judged harshly by the law. That is not saying something new. I believe that has been the emphasis of this Court for many years.

It is true that Mr Yabara’s loss of parliamentary office is a hardship to him. It is an office which carries with it salary, perquisites and status, perhaps the opportunities to start businesses, and that is a loss which in weighing the sentence one must bear in mind. On the other hand, his prior convictions balance that out.

KAPUTIN J: As to all the other grounds of appeal I concur with what his Honour, Pratt J. has said. However, the only differing view relates to, firstly, whether the person approached held judicial office and secondly, whether he was acting in a judicial capacity in regard to the act or omission which it was alleged to influence. As to the first part of the question there is no argument about it either. The person was a magistrate and, therefore, held judicial office by virtue of his appointment. The variance regards the second part of the question only. If the law, Pt III, Divn 5 of the Criminal Code had been changed then the view the majority holds may be correct. I consider that view to be a departure from the traditional common law position on the subject which is expressed in the two Supreme Court of New South Wales cases of Ex parte Cousens; Re Blacket and Ex parte Coffey; Re Evans; and in the High Court of Australia in the authority of Moorehead, all three of which have already been quoted. This is in regard to whether the “act” which is the committal proceeding, was an exercise of judicial power. The appellant could have been appropriately dealt with under s. 120 to avoid any shadow of doubt as to the relevance of the charge.

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Papua New Guinea Law Reports

Yabara v The State [1984] PNGLR 378 (27 November 1984)

Papua New Guinea Law Reports - 1984