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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE WAIGANI DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITAL JURISDICTION]
Committal Nos. 09 & 10 of 2020
BETWEEN
POLICE
Informant
AND
ROBERT BARA KENNEDY
Defendant
Port Moresby: T. Ganaii, SM
2020: 29th, May
COMMITTAL PROCEEDINGS – Charges – One count of Abuse of Office, contrary to section 92 (1) of the CCA – One count of Official Corruption, contrary to section 87 (1) (a) (i) & (ii) of the CCA - Is Police evidence prima facie sufficient to commit the defendant to stand trial
COMMITTAL PROCEEDINGS – Legal requirements for prima facie case - Presence of all of the elements of both charges – Circumstantial Evidence on element of ‘a person’ or identification – Identification based on mobile phone data not prima facie present in Police Hand Up Brief - No evidence on authenticity of subject text messages - Evidence not sufficient to commit the defendant to stand trial in the National Court on both charges
Cases cited
Akia v Francis PGNC 335
Maladina v Principle District Magistrate [2004] (25/06/04) Injia DCJ
Paulus Pawa v The State [1981] PNGLR 498
Regina vs. McEachern [1967-68] PNGLR 48
St v Duncan [2015] PGNC 279
St v Helelawa (No 1) [2017] PGNC 197
St v Murray Willie (November 2017) (Unreported) Unnumbered)
Yarume v Euga [1996] PGNC 24
Overseas Case
R v Seruhungo 2016, SCC 2 479NR 380
References
Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001). Sydney NSW 2009
Cambridgeshire County Council Book “The little Book of Big Scams, third edition, at page 30
Legislation
Criminal Code Act, Chapter 262
District Court Act, Chapter 40
Counsel
Police Prosecutor, Snr Sergeant Joseph Sangam For the Informant
Lawyer, Mr. Isaac David For the Defendant
RULING on SUFFICIENCY of EVIDENCE
29th May, 2020
Introduction
Ganaii, SM. This is a ruling on whether there is a prima facie case made out within the meaning of s.95 (1) of the District Courts Act (DCA), after the receipt of all the evidence offered by the police prosecution in the form of the Police Hand-up Brief. The court is tasked
to determine whether on the evidence as it stands at this stage of the proceedings, there is a prima facie case sufficient to commit the defendant to stand trial in the National Court.
Charge
2. The defendant Mr. Robert Bara Kennedy is charged with one count of Abuse of Office contravening section 92 (1) of the CCA and one
count of Official Corruption contravening section 87 (1) (a) (i) – (ii) of the CCA.
Statement of Facts
3. Police allege that on the 16th of December 2019 the defendant Mr. Robert Bara Kennedy (Mr. Kennedy) contacted the complainant Mr. Teddy Tasion of Tasion Group of
Companies in Port Moresby and asked for K5 000 in cash to assist with the repatriation of a deceased relative. Mr. Kennedy was the
newly appointed acting Chief Migration Officer of the Immigration and Citizenship Authority. (ICA). Mr. Kennedy had known about
the commercial interest that the Tasion Group of Companies had with the Australian Government regarding the Lorengau Asylum Seekers
Refugee Processing Centre in Manus and had abused his office in this regard.
4. Mr. Tasion suggested passing the monies to Mr. Kennedy in person however Mr. Kennedy insisted that he didn’t have time and that Mr. Tasion sends the money through Salim Moni Kwik (or SMK through the Post PNG Money Transfer Service) so that no one sees them. Mr. Tasion used his driver to go to Food World Post Office to send the money through SMK. He gave his drivers name and contact number to Mr. Kennedy. Police allege that Mr. Kennedy contacted the driver and instructed the driver to send the money to Vision City Post Office. The driver raised the concern with Mr. Tasion that would be a waste to pay the K250 fees to send the monies from one Post Office to another within the same city when he could just meet Mr. Kennedy in person and pass on the monies. It was then that Mr. Tasion became suspicious that it could be a scam. He told the driver not to send the money and to return immediately with the monies. Mr. Tasion then called the Office of the ICA and was told that the number that was communicating with him was Mr. Kennedy’s and that he didn’t go to Enga and was still in the office whilst the texting was happening. Police allege that Mr. Kennedy tricked Mr. Tasion to obtain a favour from him in his position as Acting Chief Migration Officer (a/CMO).
5. Police say that Mr. Tasion called the office of the ICA and obtained Mr. Kennedy’s number. He called Mr. Kennedy but could not get through and so he sent a text informing him of who he was and why he wanted to speak to him. Mr. Tasion said he established contact with Mr. Kennedy because of his position as the a/CMO.
ISSUE
6. The issue is whether a prima facie case is made out. This requires the court to determine whether the evidence received from the Police Hand-up Brief is sufficient to warrant the committal of Mr. Kennedy to the National Court for trial.
7. The sub-issues are:
7.1 Whether there is sufficient prima facie evidence on each of the elements of the offence of Abuse of Office under section 92
(1) of the CCA? and
7.2 Whether there is sufficient prima facie evidence on each of the elements of the offence of Official Corruption under section 87 (1) of the CCA?
The Law:
The Law on Committal Proceedings
8. Part VI of the DCA provides the legal basis for committal proceedings specifically under sections 94 -100 of the DCA.
9. The Committal process whilst it requires the court to make a finding on the evidence presented by the police, this process is administrative in nature in that the court need only to form a view that there is a bona fide prima facie case against the defendant as per the case law of Akia v. Francis PGNC 335, N6555 and R v Mc Eachern [1967-68] PNGLR 48
10. In the matter of Maladina v Principle District Magistrate1 Injia DCJ (as he then was) expressed his opinion that the Committal process involves two phases: the first is when the Magistrate "receives" or "hears" evidence offered by the prosecution only, considers the evidence, and decides whether the evidence "is sufficient to put the defendant on trial." If the Court is of the opinion that there is insufficient evidence, the Court discharges the defendant on the information. That is the end of the matter. If the Court is of the opinion that the evidence is sufficient to put the defendant on trial, then the Court proceeds with the examination of the defendant under s.96.
11. Phase two is the examination of the defendant by the Magistrate under s.96. The prescribed wording of s.96 statement, which the Magistrate puts to the defendant, is part of that provision. The statement implies that the defendant has "heard" the evidence for the prosecution, which the Magistrate has considered, and made his decision under s.95. The Magistrate gives the defendant an opportunity to give evidence and to say anything in relation to the charge, if he so wishes to.
12. Furthermore, in the case of Yarume v Euga [1996] PGNC 24, N1476 the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to seeing whether all the elements or ingredients of the offence is present before the defendant can be committed, sections 94B, 94C, 95 and 100 to be read together.
The Law on the Offending Provisions:
13. Section 92 (1) of the CCA is set out in the following terms:
(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.
Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.
(2) If an act prohibited by Subsection (1) is done, or directed to be done, as the case may be, for purposes of gain, the offender is liable to imprisonment for a term not exceeding three years.
Elements of the Offence of Abuse of Office
14. Elements of the offence of Abuse of Office as per the case of State v Hevelawa (No.1) [2017] PGNC 197; N6815 (7 July 2017) are:
15. Section 87 (1) of the CCA is set out in the following terms:
(1) A person who–
(a) being–
(i) employed in the Public Service, or the holder of any public office; and
(ii) 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 for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or
(b) ...
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.
(2) A person shall not be arrested without warrant for an offence against Subsection (1).
Elements of the Offence of Official Corruption
16. Elements of the offence of Abuse of Office as per the case of State v Duncan [2015] PGNC 279; N5010 (20 November 2015) are:
(a) a person
(b) being employed in the Public Service
(c) charged with a duty by virtue of his employment or office
(d) corruptly asks, receives or obtains any property or benefit for himself and
(e) on account of anything done or to be done in the discharge of his duties of his office
The Police Case
Witness Statements of:
Teddy Tasion
17. This witness is the complainant who stated that he made contacts with Mr. Kennedy in his capacity as the acting Chief Migration Officer (a/CMO). His intention for making contacts was to discuss their commercial interest relating to an existing contract to maintain the ICA processing facility in Lorengau. Mr. Tasion stated that he had never met Mr. Kennedy nor spoken to him in person. He had only spoken to him over the phone and communicated via text messages only. He said he had asked to meet him in person however they have never met.
18. On the 16th of December 2019, Mr. Tasion stated that Mr. Kennedy texted him and requested assistance of K5, 000 in cash to help with his haus krai (relative’s funeral) obligations. Mr. Tension said Mr. Kennedy said he was on his way to the airport and was departing for Wabag at 11am that morning, to repatriate the body of a relative. Mr. Tasion said Mr. Kennedy specifically requested that the monies be transferred to him via SMK service from Food world Post Office to Vision City Post Office. Mr. Tasion said he was going to send the K5, 000 and instructed his driver to attend to it. The driver however got to Food world Post Office only to learn from Mr. Kennedy via phone call that he has to transfer the money to Vision City Post Office. The driver enquired and the fees were K250 and he informed Mr. Tasion via phone call. It was when Mr. Tasion became suspicious that this would have been a scam. Mr. Tasion then instructed his drive to withdraw and bring the money back to him. The driver did that.
19. Mr. Tasion said he called the ICA Office and confirmed that the number that was contacting him belonged to Mr. Kennedy. He also stated that the office said that Mr. Kennedy had not gone to Wabag but was in the office. Mr. Tasion says that after this Mr. Kennedy released media statements saying that the Tasion Group of Companies fraudulently entered into the contract to manage the ICA processing facility at Lorengau. He strongly refuted these claims and said Mr. Kennedy had tarnished his company reputation and caused anxiety amongst his employees and clients. He stated that Mr. Kennedy unfairly treated him by seeking his assistance on humanitarian grounds and being deceptive with the request.
Ryan Sammy Oli
20. This witness is the driver of Mr. Teddy Tasion. He stated that on the 16th of December 2019 at about 10:15am to 11:45 am he was communicating on behalf of Mr. Tasion with Mr. Kennedy on Mr. Kennedy’s mobile number 7696 2930. He said the number is believed to be Mr. Kennedy’s as the acting Chief Migration Officer. He said he has never met Mr. Kennedy before.
21. He said on that date, Mr. Kennedy called and instructed him to transfer the money from Boroko Food world at Gordon’s Post Office to Vision City Post Office and called twice with instructions. Mr. Oli said he informed his boss Mr. Tasion about the fees involved in transferring the money and from within the city and said it would not cost anything if they met Mr. Kennedy in person. He said it was when Mr. Tasion instructed him to withdraw and return with the money. He returned with the money and did not transfer it. He attached screen shots of call from Mr. Robert Kennedy.
Kila Danagi and Lison Salle
22. These witnesses are Detective Snr Constable of Police and the corroborator and investigator during the conduct of the interview by the Police with Mr. Kennedy.
23. Document evidence namely:
be interviewed in pidgin)
The ROI is relevant for showing that process involved is fair and proper. It also shows whether or not the admissions were made and if made that they were made voluntarily. In this present case, the defendant has remained silent and not made any admissions;
08:05am -10:20am;
09:14am – 10:20am;
from Mr. Tension;
court in its present function.
Defence Submission
24. On the Police witness statements the Defence submitted that both Mr. Tasion and Mr. Oli had never met Mr. Kennedy in person. Also they have never met Mr. Kennedy when he was communicating with them on mobile number 7969 2930. If Mr. Tasion had called the ICA to verify if the number belonged to Mr. Kennedy there has to be witnesses testifying to this. Otherwise this is unreliable information, hearsay evidence and inadmissible. Mr. Oli said he believed the number ‘may’ belong to Mr. Kennedy and has no evidence to verify this.
25. In relation to documentary evidence, the defence submits that it is not known who got the screen shots. It is also not known who created Mr. Kennedy’s contact against that mobile number 7969 2930 in their phone to be able to take that screen shot. In essence defence submits that the screen shot evidence has no authenticity, is unreliable and inadmissible. Further, defence submits that evidence from Digicel PNG Ltd Annexure 12.7 shows that the mobile phone number in question has no registered owner or subscriber and consequently Mr. Kennedy is not the owner.
26. The Defence further submitted that with regards the other screen shot messages and decrypted messages from Digicel there is no identification evidence showing that Mr. Kennedy texted those messages. The Police case on identification is based on circumstantial evidence. It is trite law that ‘where evidence in a criminal case is wholly circumstantial, the Court must acquit unless the facts provided in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused, cited the cases of Paulus Pawa v The State [1981] PNGLR 498; and State v Murray Willie (November 2017) (Unreported) (Un-numbered). In the latter case, His Honour Justice Salika as he then was stated:
“ the state’s case is substantially based on circumstantial evidence, and in light of the fact that the Complainant did not identify the accused as the person with whom he was communicating with via mobile telephone, there is a very likelihood that he representations made to the complainant may have been done by someone else, other than the accused”.
27. The defence submitted further that the phone number could not be Mr. Kennedy’s as the same phone number on the 09th of December 2019, sent a text message to someone else stating that he was Mr. Francis Daink and needed assistance.
28. Finally defence submitted that Mr. Kennedy does not know anything about the text messages and the phone number and has remained silent in the ROI. There is insufficient evidence to commit Mr. Kennedy to trial.
Prosecution Submission
29. During submissions, the prosecutor standing in for prosecutor having carriage, Snr Sergeant Joseph Sangam made a short oral reply submitting that generally, any complainant would not go to the Police to lay a charge unless they know who they are complaining against. In this instance, prosecutor submitted that Mr. Tasion knew Mr. Kennedy and that was why he laid a complaint against him and that there is sufficient evidence to commit Mr. Kennedy to trial.
30. The prosecutor having initial carriage of this case Snr Constable Pius filed written submissions after this court had heard oral submissions in court and had considered the defence written submissions. The court did not consider the late submissions on the basis that it would be unfair on the defence who had already made reply submissions and the court was considering a ruling when the prosecutor filed her submissions. The submissions were also incomplete.
ASSESSMENT of the EVIDENCE in the light of the LAW
31. The issue is whether a prima facie case is made out. This requires the court under section 95 (1) of the DCA to determine whether the evidence received from the Police
Hand-up Brief is sufficient prima facie to warrant the committal of Mr. Kennedy to the National Court for trial. That is whether there is sufficient prima facie evidence contained in the Police Hand-up Brief on each of the elements of the offence of Abuse of Office under section 92
(1) of the CCA and Official Corruption under section 87 (1) of the CCA.
32. Elements of the offence of Abuse of Office as per the case of State v Hevelawa (supra) are:
Analysis of evidence and consideration of submissions on the element of ‘a person’ or identification
Introduction
33. The Prosecution’s case rely on the sum of two of Police’s only witnesses’ statements (Tasion and Oli) plus documentary evidence from the phone company Digicel PNG Ltd (Digicel) in the form of decrypted text messages. There is no direct evidence on identification. Police witnesses expressly say that they had never met Mr Kennedy in person. Also, evidence from Digicel namely a Letter of Confirmation of User, referred to as Annexure 12.7 in the Police Hand–up Brief shows that the subject phone number 7969 2930 is not registered against any user, name or any person. It does not show that Mr Kennedy is the registered user of that number.
34. The prosecutor did not make any submissions on how or why they rely on the phone communications to say that the user of it was Mr Kennedy or that Mr Kennedy is connected to the user of that number. There is no submission on invoking sections 7 and 8 of the Criminal Code Act. In this regard, the court was not assisted at all on what the Prosecution case really was.
Police Case
35. Generally however, through the statement of facts, witness statements, other documentary evidence, and based on the content of the text messages, the alleged initial contact with the Tasions by Mr Kennedy and the commercial interest that the Tasion Group of Companies has with the Office of the ICA and Mr Kennedy’s position as the acting CMO, the Police case is that Mr Kennedy was the user of the mobile phone number 7969 2930.
Police case on identification is therefore that Mr Kennedy although not the officially recorded registered owner was the user of the number 7969 2930 that communicated with the Tasions and Mr Oli via phone calls and text messages. Police rely on the following evidence:
36. Police case therefore is largely circumstantial in this regard. In order to establish identification and to build their case based on circumstantial evidence, Police must have other credible evidence on the facts surrounding identification or on any connection of Mr Kennedy to the subject phone number 7969 2930.
Relevant case law for consideration
37. This court was not able to find an appropriate case law within jurisdiction on the issue of identification through text messages.
I have researched outside of jurisdiction and adopted the principle in the Canadian Supreme Court case of R v Seruhungo, 2016 SCC 2, 479 NR 380. This case has persuasive value. The principle that was enunciated in this ruling on admissibility of text messages from a mobile
phone company was that the Crown must show authenticity or source of those messages before they can be admitted into evidence.
In that decision, the Supreme Court adopted the reasoning of O’Ferrall JA in R v Seruhungo, 2015 ABCA 189, 600 AR 356, which concluded at paras 69-78 that the trial judge had correctly excluded text message information extracted from phone
company records because the text message record data was not accompanied by evidence that linked those records to a particular person.
Police case in reliance on the initial contact with the Tasions
38. The only evidences of any initial contact between Mr Kennedy and the Tasions (Ted and Sam) is found at paragraph 2 of Mr Ted Tasion’s affidavit and also from Annexure 12.8; Digicel Encrypted Text Message of the 10th of December 2019 respectively. These evidences are brief and not detailed on how and when these initial contacts have occurred. What is clear though is that there was no meeting in person of Mr Kennedy; there was only introduction through mobile phone communication; that the initial contacts were established because of the Tasion’s commercial interest with the office of the ICA and that the text message of the 10th of December 2019 on mobile number 7969 2930 said the sender was Mr Kennedy.
39. According to case law R v Seruhungo, if the Police case on the element of identification is reliant solely on these phone data communications (i.e. alleged calls and text messages), evidence from other persons who may draw the link from the text messages to Mr. Kennedy must be present. In its analysis, the court in R v Seruhungo stated at para 11 that if the subject text message record data is to have probative value then telecommunications data must be linked to other information such as forensic data on the cell phones, telephone contracts and subscription purchase information, and evidence from persons who physically interacted with those phones. This second collection of evidence may show who composed and sent a particular message. Justice O’Ferrall concludes at para 77 that the legal issue in play is not “hearsay” but it was an issue of authentication. Mr. Sam Tasion is one such person who Mr. Ted Tasion said was in initial contact with Mr. Kennedy. Police had not obtained his statement relating to how he had known that the number 7969 2930 belonged to Mr. Kennedy. Without his evidence, the evidence of Mr. Ted Tasion in relation to the number 7969 2930 as belonging to Mr. Kennedy is hearsay evidence and inadmissible. Where Mr. Ted Tasion’s evidence is that he had confirmed with the Office of the ICA that the number 7969 2930 belonged to Mr. Kennedy, there is no evidence from the source of that information rendering that evidence hearsay and inadmissible and also does not prove identification for the police case.
Phone conversations (calls) with the Tasions and Mr Oli:
40. Witnesses Mr Ted Tasion and Mr Oli both say briefly that they had conversed with Mr Kennedy over the phone. Firstly, there is no official records from Digicel showing evidence of these call logs. Regarding Mr Ted Tasion’s phone conversation with Mr Kennedy, there is no evidence about the dates, how many times these conversations have occurred and for how long they have gone on for. This is important in establishing reliability that the phone number 7969 2930 was actually being used by Mr Kennedy. As for Mr Oli, his evidence is that it was on the 16th of December 2019 when he was heading to the Post Office to send the money to Mr Kennedy when Mr Kennedy called him. Again, there is no other evidence from Mr Oli relating to whether there were other times that he had conversed with Mr Kennedy and for how long so as to establish voice recognition and therefore reliability on identification and connection of the phone number 7969 2930 to Mr Kennedy.
41. In order for the court to accept that the Police case on identification via phone call is prima facie made out, the Police have to be able to show that the witnesses knew Mr Kennedy’s voice from some previous occasions where they have met him or heard him speak. This will enable the witnesses to make voice identification over the phone by recognition of his voice. There is no evidence to this effect. To the contrary, however, there is evidence that both witnesses have never met Mr Kennedy before which meant both have never heard him speak. Police case on voice identification via phone calls between Mr Ted Tasion, Mr. Oli and Mr. Kennedy on phone number 7969 2930 is therefore unreliable and inadmissible.
Text messages on the 10th, 15th and 16th of December 2019
42. The Police case that the phone number 7969 2930 belongs to Mr Kennedy is based on their reliance on evidence by Mr Ted Tasion that Mr Kennedy had initially communicated with Mr Sam Tasion and Mr Sam Tasion had given Mr Kennedy’s number to Mr Ted Tasion. This is evident in the text message of Mr. Ted Tasion which was sent on the 10th of December 2019, from mobile phone number 7240 6000 to 7969 2930 which reads: “Robert Kennedy, I was given your number by Sam TASION to call you and find out from you the purpose of your call to him. Kind regards TASION GROUP LIMITED”. In order to verify the source of that initial communication the Police needed to obtain evidence from Mr Sam Tasion to say Mr Kennedy made first contact with him on that number. That didn’t happen. As a result, Police case on identification of Mr Kennedy in reliance of the text message on the 10th of December 2019 is hearsay and inadmissible.
43. The contents of the other text messages of the 15th and 16th of December 2019 by the user of mobile phone number 7969 2930 which Police say is Mr Kennedy sought financial assistance from Mr Ted Tasion towards the haus-krai or funeral arrangements and repatriation of the body of a deceased relative. Police case is that these text messages were from Mr Kennedy because of the evidence from Mr Ted Tasion that Mr Sam Tasion had told him that this was Mr Kennedy’s number and that the writer of that text message had posed as Mr Kennedy. Adopting the above same reasoning, the text messages are unreliable for being hearsay, and inadmissible because authenticity is not established.
44. In the case of R v Seruhungo the court stated that the collection of other evidence may show who composed and sent a particular message. Justice O’Ferrall concludes at para 77 that the legal issue in play is not “hearsay” but it was an issue of authentication. This statement is relevant in this present case as in determining prima facie sufficiency of evidence on the element of ‘a person’ the court must be satisfied on the source of the text messages. Here, there is no evidence on police investigations on forensic data on or relating to phone number 79969 2930. For example, the two police witnesses (Tasion and Oli) were not able to show how they were able to identify Mr. Kennedy’s voice when they had never met him or heard him speak before. There is also no evidence from Digicel on call logs to confirm that there in deed were phone calls between them and Mr. Kennedy. Telephone records also do not establish who owns the sim card with the number 7969 2930 and or who may have been using it so as to show the identity of the source of those text messages. Further, there is no evidence to show that Mr. Kennedy had possession, control and or use of the phone number 7969 2930. It therefore cannot be implied that Mr. Kennedy is potentially the source of text messages that originated from the phone number 7969 2930.
45. There is also no evidence of ownership of the actual physical phone and sim card bearing the phone number 7969 2930. There are no witnesses confirming that they received communications from Mr. Kennedy originating from that phone 7969 2930. Further, there is no witness identifying any specific text messages which they may have received from the phone number 7969 2930 as being sent by Mr. Kennedy. And further still there is no evidence that links Mr. Kennedy to this particular device, and this implies that he is not the source of the text messages or phone calls. As a result, evidence in Police case on identification in reliance on the text messages from phone number 7969 2930 is insufficient.
Screen Shots
46. shot evidence showing Mr Kennedy’s name recorded against the number 7969 2930 were taken by Mr Oli as he may have saved the number against Mr Kennedy’s name. Police does not have credible evidence
showing how Mr Oli knew the number belonged to Mr Kennedy. Digicel evidence does not show Mr Kennedy as the registered user of that
number. The screen shot evidence is unreliable and does not prove identification.
Possible Hypothesis of Scamming Activity
47. The defence argument that someone else may have used the phone number 7696 2930 to fraudulently obtain favour is strongly supported
by other evidence from Digicel decrypted Text Messages in ‘Annexure 12.8’. It is an important submission that must be
addressed as it shows an argument that points to other hypothesis other than only the guilt of the defendant. These evidences show
that prior to and after these subject text messages of the 10th, 15th and 16th of December 2019, a user of this same number 7969 2930 communicated with other persons and introduced himself as someone else and
not Mr Kennedy. The evidence shows that on the 09th of December 2019, the user of the phone number 7969 2930 texted another number saying he was Francis Daink. This text communication
between this number and user posing as Mr Francis Daink goes on to say that the user needed assistance for his sister who passed
away over the weekend and that Mr Subra should inform Mr Raj about his need and loss. Here, it is clearly shown that the user of
mobile number 7969 2930 at that time was using another name and not Mr Kennedy’s. He was using the same mode of operation to
obtain favours. There is no evidence from this number at that time or even thereafter showing that Mr Kennedy was the user or had
some connection to it. There is no evidence from the content of those text messages or from persons whom this number contacted to
show any connection to Mr Kennedy. The hypothesis that the defence submits does seem to exit.
48. The contents of that text message and those the subject of this case, as a whole carry the hallmarks of scamming activities which the Police have to be weary of and vigilant with in the course of their investigations. The use of digital devices including mobile phones has resulted in an increase in the commission of cybercrimes and scamming activities in our country and the Police need to do thorough investigations on these mobile numbers. In this instance, the Police had not investigated the other phone numbers that were communicating with the subject number in order to make connections if any to build or disprove their case against Mr Kennedy. As a result of lack of connecting evidence, Police case is lacking on prima facie evidence of identification.
49. Further evidence showing or disproving Mr Kennedy’s use of and connection to the number 7969 2930 are the text messages of the 18 of December 2019. The sender of the text was from phone number 7274 4787. The nature of the text messages showed that the person sending the text to the subject phone number 7969 2930 was giving information on names of important persons and their contact numbers. There is no evidenced from this text message showing that the user or sender of that text message had any connection with Mr Kennedy.
Use of Salim Moni Kwik to avoid true identity
50. Police witness statement shows that on the 16th of December 2019, when Police say Mr Kennedy was texting Mr Tasion for money, the person texting from phone number 7969 2930 avoided answering phone calls from Mr Tasion and also was avoided meeting Mr Tasion in person to receive the money. The reason given was that he was busy with work or haus krai and also that he did not want to be seen receiving the money from Mr. Tasion. It was not until Mr Oli was called by the user of phone number 7969 2930 and told to transfer the money from Gordons Foodworld Post Office to Vision City Post Office that Mr Tasion became suspicious that it may be a scam. He advised Mr Oli not to send the money and to return with it.
51. The Cambridgeshire County Council Book entitled “The little Book of Big Scams, third edition, at page 30, made a list of Frequent Scamming Tools and said that scammers often use one or more of the tools to help them commit fraud and hide their true identity. Listed number one on that list was ‘Money Transfer Agent’. This tool is often used by scammers as its only requirement for the use of their service is for the money sender to provide identity documents when sending the money. The receiver need not have to prove identity except they are only required to show the money transfer reference number when collecting the money. According to this book, one of the sure signs for identifying a scammer is their attempts or efforts to conceal their true identity. In this present case, where the defence through their submissions is urging the court to find that there is a real possibility that someone else may be posing as Mr Kennedy to defraud Mr Tasion, the court is inclined to accept this submission by the defence in the circumstances where the Police case on identification of Mr Kennedy is lacking, and the user of the number 7969 2930 is trying to conceal his true identity by not answering calls, not wanting to meet Mr Tasion to receive the monies and opting to have the monies sent through a money transfer service.
52. If the Police case is that Mr Kennedy is involved in these scamming activities, and is caught by section 7 and 8 of the CCA, there is no credible prima facie evidence to show his identity and connection to these scamming activities. All of these do create questions on the court’s mind as to the Police case on identification of Mr Kennedy.
Case law on Circumstantial Evidence and application in ruling on sufficiency
53. The often cited case principle in Paulus Pawa v The State [1981] PNGLR 498 and the case of State v Murray Willie (November 2017), (Unreported), (Unnumbered) relied on by the defence are relevant for consideration in this ruling. The trite law on circumstantial evidence usually in a trial on identification is clear that where there is doubt in the mind of the court, it must acquit. Although more applicable at trial proper where the court has to decide on guilt or otherwise, it is also relevant in my respectful view, in determining a prima facie case on sufficiency of evidence when there is no direct evidence on identification. It is my humble view that the circumstantial evidence present in the Police HUB is unsafe to rely on to determine a prima facie case in the absence or any other evidence on identification. On the basis of these reasoning and consideration, this court finds that the element of ‘a person’ or identification is not made out. It is not necessary to discuss the rest of the elements of the offence of Abuse of Office.
54. This court therefore finds insufficient evidence to make out a prima facie case against the defendant and refuse to commit Mr Kennedy to stand trial in the National Court on the count of Abuse of Office.
Consideration on the Elements of the offence of Official Corruption
55. The elements as per the case of State v Duncan (supra) are:
(a) a person
(b) being employed in the Public Service
(c) charged with a duty by virtue of his employment or office
(d) corruptly asks, receives or obtains any property or benefit for himself and
(e) on account of anything done or to be done in the discharge of his duties of his office
Element of ‘a person’
56. On the element of ‘a person’ this court adopts and applies the reasoning and consideration on the charge of Abuse of Office. On the basis of this consideration, the element of ‘a person’ is not made out. It is not necessary to discuss the rest of the elements of the offence of Official Corruption. I find insufficient evidence to make out a prima facie case against him to to commit Mr. Kennedy to stand trial in the National Court.
DETERMINATION/FINDINGS
57. The relevant issue is whether or not the evidence presented in the Police Hand up Brief discloses sufficient prima facie evidence to put the defendant on trial for the offences for which he has been charged with.
58. On the basis of the above considerations, this court as a result of the performance of its committal function as an investigator into the strength of the case being mounted by prosecution and not as an adjudicator, has assessed the evidence in totality and makes the final finding that there is prima facie insufficient evidence on the essential element of identification on both charges of Abuse of Office and Official Corruption.
Conclusion
59. I find insufficient prima facie evidence that Mr. Kennedy did commit the alleged offences of Abuse of Office and Official Corruption. Consequently, I form a bona fide opinion in the defendant’s favour that there is insufficient evidence against him in order to commit him to stand trial.
60. I make the following order:
60.1 There is prima facie insufficient evidence to commit Mr. Kennedy to stand trial in the National Court on 1 x count of Abuse of Office contrary to s 92 (1) of the CCA and; 1 x count of Official Corruption contrary to section 87 (1) of the CCA respectively;
60.2 Mr. Kennedy is discharged from one count of Abuse of Office pursuant to section 92 (1) and one count of Official Corruption pursuant to section 87 (1) of the CCA; and
60. 3 Bail monies in the amount of Two Thousand Kina (K2, 000) is to be refunded forthwith.
Police Prosecution For the Informant
Public Solicitors For the Defendant
__________________________
1. [2004] (25/06/04)
2. Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. [2001]. Sydney, NSW 2009.
3. [Supra note 2]
4. SCR No 34 of 2005 – Review Pursuant to Constitution, Section 155(2) (b) Application by Herman Joseph Leahy.
5. [Supra note 2]
6.Regina vs. McEachern[1967-68] PNGLR 48
7. [Supra note 2]
8. [2009] PGNC 173; N3782 (23 October 2009), N3782
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