Aniau v Sero [2021] PGDC 234; DC7095 (21 December 2021)

DC7095

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 23 OF 2021
CB NO 4371 OF 2021

BETWEEN:

LOKOU ANIAU
[Informant]

AND:

GILBERT SERO
[Defendant]

Waigani: Paul Puri Nii

21^st December 2021

COMMITTAL PROCEEDINGS: -Charge- Official Corruption- 87 (1)(a)(i)(ii)- of the Criminal Code Act 1974, Chapter No. 262. Police evidence should meet the elements of the charge

PRACTICE AND PROCESS: Permitted necessity for prima facie Case-Evidence to corroborate the allegation. Defendant is an employee of IRC under the Debt lodgment and Enforcement division. Defendant employed by IRC. Defendant solicited money from client in return of favor. Direct Evidence of official Corruption-Defendant committed.

PNG Cases cited:

Anton -v- Chea [2021] PGDC 103; DC6056 (22 July 2021)
Anton -v- Chea [2021] PGDC 131
Police -v-Kambian [2021] PGDC 66; DC 6021 (30^th January 2021)
Police –v- Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police -v- Kimisopa [2021] PGDC 76;DC 6031(30^th June 2021)

Overseas cases cited:
Nil

References

Legislation

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Joseph Sagam For the Informant
Mr. Gary Tine: Adam Ninkama Lawyers For the Defendant

RULING ON COMMITTAL

21^st December 2021

INTRODUCTION

NII, P. Paul Magistrate. My ruling under Section 95(1) of the District Court Act 1963, after prosecution evidence and Defense argument are attentively measured. On 05^th October 2021, Mr Tine on behalf of the Defendant submitted Police evidence is insufficient to commit the Defendant. Police prosecutor lightly objects to Defense submission and now is the court's ruling on evidence.

FACTS

1. Defendant is 29 years old and from Imbongu District in South Highlands Province. Police says Defendant at the time (7^th December 2020) of the alleged offence was an employee of International Revenue Commission as a Debt lodgment and enforcement division. Police allege that on the date Defendant dissolutely solicited K400 from a client to do him a favor involving lodgment of yearly returns and other work relating to services provided by IRC. Defendant was paid the money by the client, nevertheless, he was caught by an IRC legal officer and subsequently the matter was reported and Defendant arrested and charged. The police information or indictment reads:
   

“Being employed in the public service as debt recovery officer attached to Debit Lodgment & Enforcement Division of Internal Revenue Commissioner of Papua New Guinea, charged with the performance of duty by virtue of that employment, corruptly asked and received form Mr Emil Tanai Vake, the Director of NB Services Limited in the sum of K400.00, in order for his(accused) to past process the certificate of compliance.”

CHARGE

2. Defendant is charged with one count of Official Corruption under Section 87(1)(a)(i) and (ii), of the Criminal Code Act 1974, Chapter No. 262. Below is the wording:

‘87. Official corruption.

(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 be Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.”

ISSUE

3. Question of evidence and that is whether police evidence is sufficient to commit the Defendant.
   

THE LAW

4. Section 95 of the District Court Act, provides this court has the jurisdiction to deal with committal matters. The law is recited below
   

95. Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.

ELEMENTS OF THE OFFENCE

5. The court in Police –v-Kambian [2021] PGDC 66; DC 6021, states prosecution evidence must meet the elements of the offending charge. Underneath is the elements of the charge:
   

Elements of Official Corruption under Section 87(1)(a)(i) and (ii) of CCA

a. A person

b. who being employed in the Public Service, or the holder of any public office;

c. and charged with the performance of any duty

d. by virtue of that employment or office, (not being a duty touching the administration of justice),

e. corruptly asks, receives or obtains, or agrees or

f. attempts to receive or obtain, any property or benefit for himself or

g. any other person on account of anything done or

h. omitted to be done, or to be done or omitted to be done

i. by him in the discharge of the duties of his office

EVIDENCE

6. The court ruled in Police v Koka [2021] PGDC 53; DC6010, only sufficient evidence should commit the Defendant after the allegation has been established. The court further went on to state that:
   

.....“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ....

7. I will now asses Defense arguments and Police evidence to make sure it satisfies the principles in Police v Koka[i].
   

PROSECUTION CASE

8. The contents of police evidence as stated in Police –v-Kimisopa[ii] includes ROI, witness statements and other documentary evidence which the court will rely upon in its ruling.
   

Police evidence

1. Steven Sinen – this witness is the Director Legal with IRC and he is the Complainant in this matter who caught the Defendant and a client next to the IRC and big rooster shop whereby Defendant was given some money by the client to facilitate and fast track in obtaining his certificate of Compliance with IRC.
   
2. Gideon Puio –he is a security officer with IRC who went and assisted officers of IRC by detaining the Defendant and got K850,00 in his wallet and some K470,00 monies in his pocket, after he was notified by the complainant about what he saw between the Defendant and a client.
   

100. Murphy Yowoura- This witness says he is an investigator with IRC and he conducted the investigation and obtained money from the Defendant after a Complainant was lodged.
     

4. Paul Tesu- this witness is also employed by IRC and he was with others who conducted investigations into the allegation against the Defendant. The investigation uncovered K450 in the Defendant’s pocket and another K850, in his wallet.
   
5. Tanai Emil Vake- he is the client whom the Defendant allegedly extorted or solicited money from him in return to do his certificate of compliance at the earliest. Witness also stated that on a previous occasion Defendant was paid K500 by the Defendant and waterfront shopping center and on 7^th December 2020, he gave the Defendant K400 (three K100 notes and 2 K50 notes)
   
6. Steven Jangi and Lokou Aniau - they are police corroborator and arresting officers who were involved in the Defendant’s arrest, interrogation and arrest. Their evidence is centered around the arrest.
   

DEFENSE CASE

9. Defendant through his Lawyer Mr Tine argues evidence is insufficient to commit the Defendant. Defense argues police evidence does not comply with the requirements under Sections 94B(2)(b), 94C (1)(a)(b) and (2) and 94(1A) of the District Court Act. Defendant submits the person who allegedly gave the money to the Defendant did not sign his statement and thus the statement was written by another person. Based on this, Defendant submits evidence is lacking to commit the Defendant and thus asks the court to dismiss the information.
   

CONSIDERATION OF EVIDENCE

10. I have considered the evidence and noted that the witness statement of Emil Tanai Vake is unsigned. Would this unsigned statement cause the entire police file insignificant and invalid as it contradicts Section 94(1A) of the District Court Act? My approach when considering Section 94(1A) of the District Court Act as specified in the cases of Anton v Chea [2021] PGDC 103; DC6056 (22 July 2021) and Anton v Chea [2021] PGDC 131; DC6088 (14 September 2021) is principally on the witness statement that would have a lot of weight in the police case. In the former case the court on its own enquiry summons the arresting officer to come and give evidence because the victim’s statement was not signed. The court upon enquiry found out that the victim statement was signed by the arresting officer. Subsequently, the victim statement was refused under Section 94(1A) of the District Court Act. Moreover, the court in the latter ruled that the strength of the other witness statements rest on the victim statements since other statements are only to support the complainant's statements which is the victim in the police case.
    
11. The court then went on to dismiss the entire information because the victim/Complaint statement was inadmissible. The court also noted that other state witnesses could not corroborate the charge since they were to depend on the victim statement. In the current case, I note a client statement is not signed but my question is would this statement affect the other witness statements under the principles in Anton v Chea[iii]? I note that Tanai Emil Vake’s statement is not signed. In my opinion, the statement of Tanai Emil Vake is not the victim nor the Complainant in the matter but a witness, the victim in the matter is IRC through its representative, a Principal Legal officer who had lodged the initial complaint against the Defendant. The victim/Complainant’s statement is signed and approved as evidence for the purpose of my deliberation under Section 95 of the District Court Act. Other than the victim and complainant, other witness statements would have less effect in the police case and thus defense arguments on the issue of unsigned witness statements are declined.
    
12. Finally, the defense is generally arguing police evidence is insufficient to commit the Defendant. Witness and Complainant Steven Sinen stated on 7^th December 2021, he parked his vehicle on a usual location near the Era Rumana building downtown and witnessed the Defendant in conversation with a client and afterwards he was given some money. Statement of Gideon Puio says upon search they got K850 in the Defendant’s wallet and around K470, in his trousers pocket. Statement of Murphy Yowoura says there were around K400 in the Defendant’s trousers pocket while K900 in his wallet. Statement of Paul Teusa says they found K450 in the Defendant’s pocket and K850 in his wallet. Finally, witness Judas Ragir says Defendant had over K400 in his pocket and K850 in his wallet after he was searched by IRC officers.Defendant says on his record of interview(ROI) that the amount of K400 was given to him by his father on the date of allegation in front of Stop n Shop before he was caught by IRC Officials and the remaining K850 was from some previous family contributions. There appears to be some inconsistencies in the exact amount of money found in the Defendant’s procession, however, there is no issue that Defendant had some money at the time he was searched by IRC officials. The trial court may deal with issues of inconsistencies and others but my jurisdiction is only to ascertain sufficiency of evidence.
    

RULING

13. There is a Complaint against the Defendant that he was given some money by a tax payer of IRC and subsequently he was arrested and charged. A witness said Defendant got some undisclosed sum of money although he could not tell how much Defendant received. Defendant did not state his encounter with the tax payer in his submission but justifies he got the money from some previous family contributions. Defendant at no point in time explains his meeting with the taxpayer. The question that led to mistrust of the defendant’s proposition and argument is why there were two sets of money, some in his wallet and others in his pocket? If those monies were for the purpose as claimed by the Defendant, then why there is no justification about the two (2) set of money? There is an allegation against the Defendant that on the morning between 8 -9am, he was seen receiving some money from a taxpayer as a form of bribery to fast track some work. If the Defendant did not receive anything then what did he receive? Immediately or soon thereafter when he was searched by IRC officers, there was some money and that led to my opinion that he was given some money. There is no proper justification about what the Defendant had received from the client but I believe Defendant decided not to disclose this at the committal court.
    
14. Moreover, Defendant stated on his record of interview that he contacted the tax payer in the morning prior to the purported crime. Moreover, there is evidence of communication between the Defendant and the Taxpayer about a certificate of compliance. There is evidence of communications between the Defendant and Complainant which allegedly led to Defendant receiving money from the taxpayer.
    
15. Defendant’s own submission which omits his meeting with the taxpayer but stated on his ROI that he called the Defendant forces me to believe that Defendant was in communication with the taxpayer in the morning which led to the subsequent allegation. Defendant says he received some money from his father prior to the date of allegation and also did not mention anything about the taxpayer on his submission. I believe Defendant’s father and the taxpayer may verify or deny this during trial but for now evidence is sufficient to commit the Defendant.
    

CONCLUSION

16. I have carefully considered evidence in the police file and satisfied witness statements satisfying the elements of the offence of official corruption under Section 87(1)(a)(i) and (ii) of the Criminal Code Act. I am satisfied Defendant, while being employed in the Public Service which is IRC and charged with the performance of his duty corruptly asks, receives or obtains money for the benefit of himself from the taxpayer.
    

ORDERS

My Final Orders

1. Evidence is sufficient to commit the Defendant

2. Defendant’s bail extended.

.

.

Ninkama Lawyers For the defendant
Police Prosecutor For the State

[i] Supra
[ii] Supra (the case on point that specifies the contents of police file)
[iii] Supra