State v Duncan [2015] PGNC 279; N5010 (20 November 2015)

N5010

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 216 OF 2015

Between:

THE STATE

And

TIMOTHY DUNCAN

Waigani: Salika, DCJ
2015: 16, 17, 18 & 20 November

CRIMINAL LAW – Practice and Procedure – Sections 87(1)(A) of Criminal Code – Charge of Official Corruption – What is Corruption?

Cases cited:
Papua New Guinea Cases
State v Toamara (1988-89) PNGLR 253
Kindi Lawi v The State (1987) PNGLR 183
State v Gabriel Ramoi (1993) PNGLR 390
The State v Frances Laumadava (1994) PNGLR 291.

Overseas Cases
Copper v Slade ([1858] EngR 546; 1858) 6 H L C 746 at 773
R v Lindley [1975] Crim LR 321
R v Calland [1967] Crim LR 236.
R v Smith [1960] 1 All ER 256
R v Wellburn, Nurdin and Randel (1979) 69
Counsel

Mr J Appo, for the State
Mr G Kaore, for the Accused

20th November, 2015

1. SALIKA DCJ: INTRODUCTION: The accused in this matter is charged with one count of official corruption under Section 87(1)(a) of the Criminal Code Act. The State alleged that at the material time of the alleged offence the accused was the Human Resource Manger with the Internal Revenue Commission (IRC). The State further alleged that in April 2014, the IRC advertised for positions for its cadetship programme and among other applicants for the programme a Mike Tobo lodged an application for consideration.

2. The State then alleged that the accused between 1 July 2014 and 31 July 2014 contacted the applicant Mike Tobo and asked him to give him money in order that he as the HR Manager will give favourable consideration and award him a placing in the cadetship programme with IRC.

3. Mike Tobo made inquiries with other IRC officers, if that was the normal part of the recruitment process in IRC. He was told that it is not a normal process. The accused is alleged to have called Mike Tobo and asked Tobo for the money. Mike Tobo and the accused agreed to meet at the Steamship Plaza. Both Mike Tobo and the accused met at the Steamship Plaza and the accused allegedly asked Mike Tobo if he had the money to which he told the accused he only had K50.00. He offered the K50.00 and the accused allegedly took the K50.00.

4. When Mike Tobo made inquiries with the IRC officers he informed the officers that someone from IRC had been contacting him to give him money and he told them that he will be meeting that person at the Steamships Plaza. Those IRC officers then followed Mike Tobo to see who it was, that was making the demands for money from Tobo. They observed from a distance and when Mike Tobo met with the accused the IRC officers realised it was none other than the Human Resource Manger, the accused. After their meeting the IRC officers then arrested the accused and the accused was charged by the police for official corruption and Tobo's K50.00 was retrieved and given back to him.

5. The accused pleaded not guilty to the charge.
EVIDENCE

6. The State's principal witness was Mike Tobo. He was one of many candidates who applied for positions in the cadetship programme advertised by IRC. He said on 11 July 2014 he sat for the aptitude test and was told that he would be contacted later if successful. He said some 14 days later he received a call from the accused. The accused was not known to the witness. The witness said on the next day he received a text message which said:-

(i) "I am on the shortlist for cadetship, if you have anything to say we can do that tomorrow".

7. The witness said he did not know who sent the message but he said it was from IRC Human Resource Officers and that that was received on a Saturday. He said he text back saying that he was in the village and asked if it was George or Leo. The witness said the person then called to say that George and Leo were small boys and the he was Chairman of the Selection Committee.

8. The witness said he asked by text message what do you want and the person text back to say prepare some money and he asked how much and the person on the other side said K500 to K600. The witness said he was in the village and he did not have that kind of money. The person then told him his interview was at 11:15am on the Monday but the person he was communicating with said to see him first before the interview.

9. The witness said he basically knew that this was wrong. He went to the IRC office on the Monday and told his aunt working with IRC of the text messages and his aunt called the IRC Internal Investigations. While in the office of his aunt he received a call and the caller asked him where he was and he said he was coming to the IRC office. The caller asked him if he brought any money to which he said he did.

10. The witness said 30 seconds later the same caller called again and this time he put his phone on loud speaker and the IRC Internal Investigators also heard the conversation and they said it was the HR Manager Timothy Duncan's voice. They, the Internal Investigators wanted to confirm who the caller was and decided to follow Mike Tobo to Steamship Plaza where the witness agreed to meet the caller. Mike Tobo asked the caller how he would recognise him and the caller said just come as he was the only one there. Mike Tobo said he was still on the phone when he walked into the Steamship Plaza shop.

11. He said when he walked in the accused called his name and he asked him if he was Timothy and he said "yes". He said the accused then asked him if he brought any money and he said he only had K50.00 and told him that his first pay he will give him more then. He said the accused said "do you know your life depends on this: and he said yes he knew. He said the accused took the K50.00 from him and as they were about to go out of the shop, the IRC Internal Investigators came and arrested the accused.

12. The next State witness was Leo Philip. His evidence in chief was in relation to his line of duty and the responsibilities of the accused. In cross-examination he said IRC has in place internal disciplinary process and procedures which may be utilised for any disciplinary offences committed.

13. In answer to questions by the defence that he had planned to trap and catch the accused in the act, the witness said that he did not know what was going on and the IRC officers wanted to know who sent the text messages and made the calls to Mike Tobo and to confirm if in fact the person asking for money was from the IRC. It was at the meeting of Tobo and the accused that the witness and others confirmed who it was that was responsible for making those text messages and the mobile phone calls.

14. The next witness was Kila Pou. His evidence was similar to that of Leo Philip.
DEFENCE CASE

15. The accused gave evidence on his own behalf. He said he did call Mike Tobo on Saturday and told him of his interview for Monday. He said Mike Tobo was unemployed and was desperate for a job. He does not understand how and why he is now in court but believes he was set up by Mike Tobo and the Internal Investigators of IRC. He said Mike Tobo was the one who proposed the idea for him to give K500.00 and K600.00 to him. He also said it was Mike Tobo's idea to meet at the Steamship Plaza in downtown Port Moresby and when they met Mike Tobo, offered him K50.00 for fuel but said he refused but that Mike Tobo insisted and left the money in his hand.
THE LAW

16. The accused is charged under Section 87(1)(a) of the criminal Code. It reads:

"Section 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 employment or office, (not being a duty touching the administration of justice),
     • (iii) 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 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, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

• A person shall not be arrested without warrant for an offence against Subsection (1).

ELEMENTS OF CHARGE

17. The elements of the charge 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
(e) on account of anything done or to be done in the discharge of his duties of his office.

18. The State is required to establish by evidence all the above required elements of the charge beyond reasonable doubt.

19. There is no contention by the defence that the accused is the person referred to in this charge and that he was employed by the IRC as the Human Resource Manager and as such was employed in the public service of Papua New Guinea. Elements (a) and (b) are therefore proved beyond reasonable doubt.

20. The accused in his position as Human Resource Manager is charged with the duty to recruit, train and manage human resources working for IRC. There is no dispute he was charged with that responsibility. Element (c) is proved beyond reasonable doubt.

21. There is no dispute the accused received K50.00 from Mike Tobo. The accused did not dispute that fact. The question is; did he corruptly ask for money and did he receive the K50.00 corruptly. Did he corruptly agree to receive the rest of the money later? Did he corruptly receive the K50.00 for himself on account of having Mike Tobo shortlisted and eventually to secure a place for Mike Tobo to be appointed a cadet under the cadet programme advertised? The money K50.00 was received by the accused on Monday. The idea of asking for giving or receiving money was first raised on Saturday and continued immediately prior to and during the meeting at the Steamship Plaza on Monday.

22. The evidence from Mike Tobo is that he was coming for a job interview on that Monday. He was then employed by O.G Construction Surveys as an administration officer. It is therefore not true that Mike Tobo was unemployed at the time. He did not know who was going to interview him for a job at IRC. The accused knew Mike Tobo was coming for a job interview. He knew he was the person who was going to interview Mike Tobo and the other applicants in his capacity as the Human Resource Manager with IRC. The accused was already at the Steamship Plaza before Mike Tobo waiting for him to arrive.

WHAT DOES "CORRUPTLY ASKS, RECEIVES AND OBTAIN" MEAN?

23. Corruptly is an adverb of the word corrupt. The Oxford Advance Learners Dictionary new 8th Edition defines corrupt as:

• "(Of people) willing to use their power to do dishonest or illegal things in return for money or to get an advantage"; a corrupt regime or corrupt officials accepting bribes.
• (Of behaviour) dishonest or immoral; corrupt practices.
• (Corrupting) containing changes or faults and no longer in the original state.
• To change the original form of something or somebody from moral to immoral standards of behaviour.
• The form of a word or phrase that has become changed from its original form in some way; the word "holiday" is a corruption of "holy day".
  
• The case of the State v Toamara (1988-89) PNGLR 253 is useful as to what the word "corruptly" means. Brunton AJ usefully discussed what the word "corruptly meant. He said:-
  • There is one line of English cases which says that "corruptly" means dishonestly: R v Lindley [1975] Crim LR 321 and R v Calland [1967] Crim LR 236.
  • 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 ...": Copper v Slade [1858] EngR 546; (1858) 6 H L C 746 at 773 per Willes J; R v Smith [1960] 1 All ER 256 at 259 G, per Lord Parker CJ: and R v Wellburn, Nurdin and Randel (1979) 69 Cr App R 254.
  • 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 s120 (1) – "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, which are more associated with other forms of social deviancy such as sexual indiscretion (although the taking of bribes is certainly immoral).
  • The rule in R v Smith that "corruptly" means purposely doing an act which the law forbids has circularity about it: "corruptly means doing something which is corrupt". A circular definition is a non-definition. It merely conceals the real basis on which a decision is made, and allows a court to construct a syllogism on an undisclosed premise: See J Stone, "III. Category of Concealed Circular Reference", Precedent and Law (Butterworths, Sydney, 1985), at 65-67, and also J Stone, "par 9. The Legal Category of Concealed Circular Reference", Legal System and Lawyer's Reasoning (Maitland, Sydney, 1968), at 258-263. As a matter of principle, I prefer the line of cases ending with R v Calland [1967] Crim LR 236, and I hold that the State in this case must prove an element of dishonesty. Dishonestly is a somewhat firmer concept than corruptly, although it, too, is an undefined adverb, and can lead itself to circularity.

24. With respect the court there was dealing with a charge under s120 of the Criminal Code. The charge in this case is under Section 87(1)(a) . The wording of the two Sections is similar. However, in this case and again with respect I join Brunton AJ as he then was by preferring "corruptly" to mean dishonestly. Dishonestly has been defined under Section 383A of the Criminal Code by the Supreme Court and this court. The charge there is misappropriation and says any person who dishonestly applied to his own use ........See cases of Kindi Lawi v The State (1987) PNGLR 183, The State v Gabriel Ramoi (1993) PNGLR 390 and The State v Frances Laumadava (1994) PNGLR 291. If the word "corruptly" as used in Section 120 and held by Brunton AJ, whom I respectfully agree with means "dishonestly", then with respect I would extend the same meaning to the word "corruptly" as used in Section 87(1)(a) of the Criminal Code. Dishonestly means – intend to cheat, deceive or mislead. (See The State v Gabriel Ramoi (supra)). Corruptly with respect in my opinion would therefore amount to intention to cheat, deceive or mislead in Section 87 of the Criminal Code. That would be the net effect of all those if one acted corruptly. Offering a bribe to someone to induce that someone to do an act or not do an act in the discharge of his duties amounts to corruption which in turn amounts to an intention to cheat, deceive or mislead.

25. The defence submission was that when Mike Tobo reported the matter to Miriam Tau before the meeting at Steamship Plaza and when Miriam Tau then reported the matter to the IRC Internal Investigating Unit and the Investigating team took the complaint from Mike Tobo, the investigating team should have summoned the accused and have the matter dealt with there and then. The defence contention was that to allow the accused to further incriminate himself amounted to his client being set up and trapped.

26. The submission is based on Mike Tobo's statements in the depositions. My notes show that Mike Tobo's statement in the District Court was not tendered into evidence thus his statement is not evidence before this court. Only Leo Philip and Kila Pou's statements from the District Court were tendered into evidence and they are exhibits D and E respectively before this court. The State did not seek to tender Mike Tobo's statement. The defence did not seek to tender his statement either. The only evidence from Tobo in this Court is his sworn oral testimony. The defence now cannot rely on that statement as it is not evidence here.

27. Mike Tobo said the accused asked him if he brought the money and he said he only had K50.00 and offered the K50.00 and to pay the rest later. The accuseds evidence is that Mike Tobo offered him the K50.00 to buy fuel and that Mike Tobo insisted that he get it or accept it. In this case especially in relation to this aspect of the evidence I prefer the evidence of Mike Tobo to that of the accused. This is because if the accused story is true that Mike Tobo proposed the idea to meet him at the Steamship Plaza the accused would be hesitant and reluctant to come down. But I accept Mike Tobo's evidence that the accused proposed the idea. I also prefer his evidence to that of the accused because from the start the accused started these rather unusual and unnecessary mobile phone calls and texts.

28. I am accordingly satisfied beyond reasonable doubt that the accused proposed and started the idea of payment of K500.00 to K600.00. The accused received K50.00 from Mike Tobo for his benefit on account of securing a place for Mike Tobo to be firstly on the shortlist of applicants and eventually for appointment to the cadetship programme advertised by IRC in discharging his duties as the Human Resource Manager of IRC.

29. In the end result I am satisfied beyond reasonable doubt that the accused corruptly asked for money from Mike Tobo in consideration for Mike Tobo to be firstly placed on the short list of applicants for jobs in the IRC and secondly to be recruited on one of the positions advertised and applied for by Mike Tobo. I accordingly find him guilty as charged.
________________________________________________________________
Public Prosecutor: Lawyers for the State
George Kaore Lawyers: Lawyers for the Accused