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Kirivi, The State v [1987] PNGLR 489 (2 February 1984)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 489 - The State v Peter Kirivi 

[1987] PNGLR 489

N663

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

PETER KIRIVI

Waigani

Kidu CJ

2 February 1984

CRIMINAL LAW - Particular offences - Official corruption - Elements of offence - Need to prove corrupt use of office for gain - Criminal Code (Ch No 262), s 87.

CRIMINAL LAW - Particular offences - Extortion by public officers - Elements of offence - Requires proof of bribery to perform duty of office - Does not apply to seeking extra emoluments - Criminal Code (Ch No 262), s 88.

Held:

(1)      Where a person being a public servant is charged with the offence under s 87 of the Criminal Code (Ch No 262) of corruptly asking, receiving or obtaining any property or benefit of any kind for himself on account of anything done or to be done by him in the discharge of the duties of his office, proof is required of the corrupt use of the particular office held for gain.

R v David [1931] QWN 2, followed.

(2)      Where a person, being a public servant is charged with the offence under s 88 of the Criminal Code (Ch No 262) of taking or accepting from any person, for the performance of his duty as that officer, any reward beyond his proper pay and emoluments, proof is required that the public servant has the power to do something or to perform a public duty that he is entrusted with as a public servant and is bribed by someone to perform that duty or not to perform it: obtaining or attempting to obtain a reward beyond one’s pay or emoluments will not satisfy the charge.

Cases Cited

The following case is the only case cited in the judgment:

R v David [1931] QWN 2; 25 QJPR 15.

Ruling

On a trial on charges of official corruption and extortion by public officers contrary to s 87 and s 88 of the Criminal Code (Ch No 262), Kidu CJ made the following rulings on the interpretation of the relevant sections.

Counsel:

M Boyce, for the State.

D McMillan, for the accused.

Cur adv vult

2 February 1984

KIDU CJ.: I am going to make my ruling now on the interpretation of s 87 of the Criminal Code (Ch No 262) which provides as follows:

“87.    OFFICIAL CORRUPTION

Any person who—

(a)      being employed in the Public Service, or being the holder of any public office, and being charged with the performance of any duty by virtue of that employment or office, not being a duty touching the administration of justice, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of any thing already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office; or

(b)      corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any person employed in the Public Service, or being the holder of any public office, or to, upon, or for, any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed or holding such office,

is guilty of a crime, and is liable to imprisonment with hard labour for seven years, and to be fined at the discretion of the court.”

I rely on R v David [1931] QWN 2; 25 QJPR 15. In my view the Judge in that case was quite right, that a person who is charged with an offence under s 87 must be charged with corruptly using his particular office for gain, eg corruptly asking for money. In this case the proper charge should have been based on the accused using his office of requisition officer, that is the issuing of ILPOCS to people who are staying in hotels and using that particular office to gain money corruptly. What the evidence shows is to the contrary. He did not use his own office or position in the Public Service to ask corruptly for money from Mr Maltby or Mr Liebriecht. The charges — counts 1 and 3 — were improperly laid under the section.

As to counts 2 and 4 which were laid under s 88 of the Criminal Code which provides as follows:

“88.    EXTORTION BY PUBLIC OFFICERS

Any person who, being employed in the Public Service takes or accepts from any person, for the performance of his duty as that officer, any reward beyond his proper pay and emoluments, or any promise of such reward, is guilty of a misdemeanour, and is liable to imprisonment for three years.”

I have already indicated that there is no such criminal offence as charged in those two counts in the indictment of obtaining, or attempting to obtain for the performance of one’s duty as a public officer a reward beyond one’s pay or emolument. In my view s 88 is directed at situations where a person who has the power to do something or perform a public duty that he is entrusted with as a public servant is bribed by someone to perform that duty or not to perform it.

Lawyers for the State: L Gavara-Nanu, Public Prosecutor.

Lawyer for the accused: N Kirrowom, Public Solicitor.