State v Molkawul No.1 [2015] PGNC 286; N6257 (10 November 2015)

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CRIMINAL LAW – Trial – unlawful compensation demand – Criminal Code, Section 390A (a) (iii) – elements of the offence – demanded compensation -whether the accused with intent to extort payment -accused threatened to obtain compliance by detaining the victim – Threatened to lay extra charges on victim to speed up demand for cash compensation.

CRIMINAL LAW – Trial – Abuse of office – Criminal Code Section 92 (1)-–elements of the offence – being employed in the Public Service – abuse of authority of office – use of official police letterhead -demanding compensation.

CRIMINAL LAW – Accused found guilty on two counts - Section 390A (a) (iii) & Section 92 (1) of the Criminal Code.

Cases cited:
Browne v Dunn (1893) 6 R 67 (HL)
Kutau v The State (2007) SC927)

Publication cited:
Concise Oxford English Dictionary, Oxford University Press, 11th edition © 2004

Counsel:
Mr. Emmanuel Thomas & Mr Joseph Kesan, for the State
Mr. George Korei, for the Accused

1. GEITA J: The accused pleaded not guilty to two counts of unlawful compensation demand and abuse of authority of office in Vanimo on 4th December 2013 thereby contravening sections 390A (a) (iii) and 92 (1) of the Criminal Code Act.The charges arise out of incidents of assault on the accused on 4 December 2013 at Vanimo, where the accused was Police Station Commander.

2. The State evidence is comprised of two oral testimonies and 10 statements admitted into court by consent and marked as exhibits. I list them here under:-

Exhibit A	Police statement by Michael Tilae. 26/3/2014, 2 pages
Exhibit B	Police statement by Mark Gra-Deputy Chairman-AMGRIM Ltd 24/3/2014, 2 pages
Exhibit C	Police statement by Mrs Lisa Yase Kerry 21/3/2014,3 pages
Exhibit C	Letter by Lisa Kerry to Mr. Jones Kromo pidgin/undated
Exhibit C	Letter by Lisa Kerry to JV Director Amanab Forest Products Ltd
Exhibit D	Police statement by Paul Nansuai 18/06/2014, 3 pages
Exhibit E	Police statement by Freda Woktamol 18/06/2014, 3 pages
Exhibit F	Record of Interview in English 18/06/2014, 7 pages
Exhibit G	Letter written by Sombu Molkawul to David Ling dated 4/12/2013, signed by Accused, Jones Kromo and Mark Gra 2 pages
Exhibit H	Police statement by Eric Chan 20/03/2014, 2 pages
Exhibit I	Police statement by Kelly Messi 20/03/2014, 3 pages
Exhibit I	Police statement by Michael Saun 24/03/2014 (erroneous)
Exhibit J	Photo copy of cheque made payable to Accused in cash 06/12/2013- Amanab Forest Products Ltd-Westpac Bank chq.
Exhibit K	Cheque Payment Voucher from Amgrim Holdings Ltd 11/12/13, chq signed for and received by the Accused.

3. Jones Kromo – The Chairman of Amanab-Vanimo Green District Timber Project. The witness testified of trying to settle Francis Tiki's debts to a Mrs Lisa Keri who had fronted up at his home at Dali on 4th December 2013 accompanied by the accused in his police vehicle. The witness produced K2000 to settle the debt in the presence of the accused but was rejected by Lisa Keri and the cash thrown back at him. Jones Kromo then used the money to buy beer and drank with his friends. At that time the accused insisted that the witness accompany him to the police station for questioning when Kromo refused and slapped him in the face. The accused returned to the police station and fronted up at Kromo's house later with police reinforcements in four police vehicles. Jones Kromo was assaulted and taken back to the police station for questioning.

4. He said during questioning at the police station the accused demanded K20, 000.00 from him as compensation for assaulting him. After much discussion the amount demanded was considered too excessive and reduced to K10, 000.00 which was to be paid before 4.06 pm that day. He said when they (The Police) heard that the management was willing to pay the compensation he was released and allowed to return home. Kromo said all along three policemen were providing logistics in a police vehicle to and from Mr Eric Chan and Robert Lings office and the Amanab Forest Products main operations office, pursuing the compensation claim. The witness said the "Management" was willingness to assist however required proof from the accused Mr. Sombu.

5. The witness said on 5 December 2013 Mr Sombu wrote a letter to the management and the next day on 6 December 2013 a cheque was raised in his favour and delivered to him by Kelly in his office. He said the money was released on the strength of letters' written by Amanab Forest Projects Holdings and Mr. Sombu.

6. When shown the letter written on 4 December 2013 the witness confirmed his signature and those of Mr Sombu and his Deputy Chairman. He said Mr. Sombu wrote under the letter however since it was late he delivered the letter the next day on 5th December 2013. Sombu included his account number in the letter of demand.

7. In examination in chief the witness said he made the undertaking to pay K20,000.00 as this was his first time and he feared for his family's welfare including the fear of being locked up at the police cells and fronting up in court.

8. In cross examination the witness admitted to his wrong doing which forced his wife and relatives to approach the accused for an out of court settlement. He admitted that the accused was not present during the mediation, headed by Sgt Ludwig Michael and other police officers behind the police station which resulted in the demand for compensation. He further agreed to requesting the accused into writing the letter dated 4 December 2013 demanding the K20, 000.00 with K10, 000.00 to be paid to the accused and the balance to cover his debts. When suggested to him that the accused did not demand for compensation, the witness said the letter came from the accused because of his assault viz compensation. The witnessed agreed that he did not file a complaint with Police as he had no further grudges against the accused.

9. Witness Michael Saun, a police sergeant testified of attending to the accused's complaint of assault on 4 December 2013 by apprehending the accused at his home and bringing him to the police station. A convey of three police vehicles were used in the operation. He further testified of being invited by an auxiliary policeman Tony Bapian 11 December 2013 to witness the delivery of the compensation cheque by Mr Kelly to the accused in his office. He said as soon as the "boss" received the cheque it was handed over to Tony Bapia who cashed it at Vanimo Supermarket and returned the cash to the accused in his office. All the time the witness was the driver.The witness and Tony were told to go and sort out the money so they went into Sergeant Ludwick Goi's office since he conducted the mediation and later went from office to office distributing the money to those who helped in Sombu's case. He said the two auxiliary police men who accompanied Mr Sombu received K1500 each as they were also assaulted. The witness said the accused refused to be given any money and instead directed that it be distributed amongst the policemen who assisted.

10. In cross examination the witness denied that he was one of the leaders during the mediation. His role was to follow up the complaint. He denied any knowledge of the K8, 500 cash payout as he did not see the money. He however admitted seeing the money only when it was placed on Sergeant Ludwig's office table. When questioned if the accused was given any monies he said not to his knowledge.

11. At the end of States case Mr Korei moved a brief no case submission on behalf of the accused relying on both limbs of the principles in Paul Kundi Rape's case. He submitted that the State has failed to make out all the elements in the two counts and asked for an acquittal. Adding that it was unsafe for the court to have the accused lawfully convicted? State Prosecutor Mr. Emmanuel replied that the State had made out all the elements in the two offences and submitted the accused be called to answer. He submitted against the premature closure of this case as all the evidence are best received before a final determination was made. The court was in agreement with the views expressed by the State Prosecutor: The accused's no case submission was therefore rejected on both limbs enabling the trial to resume.

12. Defence witness Ludwick Hoi – A police sergeant with 39 years of policing. In-charge of Police Internal Investigation Unit in Vanimo. The witness testified of mediating a matter involving assault by Jones Kromo as Chairman of Amgrim Holdings Ltd on the accused, 1st Constable Billy and Auxiliary constable Tony Bapia on 4 December 2013. He said with Jones Kromo now locked in the cells, his wife and relatives approached the Police Station Commander and demanded for an out of court settlement. The witness said as a police investigator he was called upon to mediate the matter comprising of Jones Kromo's wife and other policemen in the absence of Mr. Sombu. He said the mediation settled on a K10, 000.00 compensation but as a police officer he advised against it and said the amount was too excessive. NB: Since all references to Kromo's evidence in the first person hereon were in breach of hearsay rules and ignored.

13. In examination in chief the witness said his duty statement entails him to investigate public complaints/allegations against the Police Station Commander and the rank and file below him. He said from 4/1/2013 onwards no complaints were filed by either Mr. David Ling, Jones Kromo or the Vanimo Forests and Amgrim Company. The witness said he had no knowledge of the letter dated 4/12/2013 including the second letter and said he only did mediation.

14. In cross examination when put to him that Mr. Sombu wanted compensation for his injuries sustained the witness said the monies were released as a result of mediation. He agreed with suggestions that when the 'boss' was assaulted his officers wanted compensation.

Q.10 So mediation happened because the PSC wanted compensation, officers wanted compensation?

Q.12 So policemen knew that Jones Kromo was willing to pay compensation correct?

Q. 19 It was explained to Jones Kromo that if he failed, he would be locked up during mediation.

15. When suggested to the witness that a mediator in conflict situations between party A and party B, a mediator must be neutral, the witness agreed. He agreed with State suggestions that there was a problem with Jones Kromo and police mediation. However when put to him that he was not a neutral mediator because he was a police officer, the witness disagreed. The witness said since it was an internal investigation unit matter he referred the matter to Port Moresby however admitted that he mediated the matter due to police demand for compensation.

Q.24 So you did not treat this mediation as Police Internal Investigation matter because you were interested in money, agree?

Q.30 On 4/12/2013 mediation there were more policemen at mediation than Jones Kromo's family?

16. In re examination the witness said mediation was part and parcel of his tasks as an Internal Investigation Unit officer and so he conducted the mediation saying no pressure was exerted on Jones Kromo. He said the mediation was carried out at the insistence of Jones Kromo as he wanted an out of court settlement and believed his actions were impartial.

17. Sombu Salvatore Molkawul – Accused- Former Vanimo Police Station Commander with 23 years policing experience. He testified of being approached by Mrs Lisa in his office on 4 December 2013 over a debt complaint and proceeded to Mr Jones Kromo's house accompanied by two policemen. He said Jones Kromo was drunk with ten other men. He was assaulted so they apprehended Kromo and locked him up at the police station. He then went home.

The witness said Mrs Helen and Davis approached him and requested for an out of court settlement. He said after more than five attempts by Kromo's relatives to have him released he relented as he was now concerned about his public relations. He said two other policemen were assaulted. (Breach of Browne v Dunn rule). The witness said he referred the matter to Sgt Ludwick whom he said was the best men to mediate such problems and returned to his office. After the mediation Jones Kromo came into his office and requested for a letter to be written to the Company for money to be released. It was then that Kromo told him that the mediation team had agreed for K10, 000.00 to be paid to the Police.

The witness said Kromo returned to his office again and insisted that the accused write another letter on police official letterhead as the company had refused. He said he then wrote the letter of 4 December 2013. The witness said the mediation team recommended K10, 000.00 however Jones Kromo requested for an additional K10, 000.00 to go towards settling his debts. Mrs Lisa was one of those he said.

The witness said he had no hidden agenda as he gets paid well in his job as a police officer. He said the letter that he wrote to the company was rejected by them because it did not have Kromo's signature. He said after Kromo signed the letter he was asked to include his BSP account number at the bottom of the letter, to which he did and the signed letter returned to the Company.He wrote the letter but the company demanded officials from Amgrim to also sign so they all signed on same letter drafted by the accused.He said he does not know what happened after the letter was delivered including the second letter. He said he came to know about the second letter through a copy some time later.

The witness said on the day the cheque was brought into his office he signed it and gave it to Michael Saun and Tony Bapia. He said as to where they cashed it he had no idea until the cash was returned to him however he refused to accept it as he did not want to be part of the money. He said since he was assaulted others may benefit from his suffering. (mi papa bilong trouble, larem bilong ol."

18. In cross examination the witness said when Helen came into his office, Jones Kromo was in the cells so he agreed to Helens request for mediation and referred the matter to Ludwick. He agreed that he gave authority for mediation saying it was part of police work. Although he agreed that police officers were incensed with their boss being assaulted however denied that his officers assaulted Jones Kromo.

Q. 11 Being an experienced police officer and Police Station Commander you wanted decision to be transparent?

Q. 15 So mediation happened at the back of Police Station, not a neutral ҈& < < &#ro0;g?

Q. 17. The. The whol whole reae reason wson why mehy mediation was conducted because you wanted settlement whilst it's fresh?

19. The witness said that he did not know that Jones Kromo was Chairman. He agreed that he met him in Vanimo town on 3 December and asked him for money. He further agreed that Jones Kromo did not borrow the money but Francis Tiki did however since Tiki was under Jones Kromo, it was within his knowledge. He was innocent all along. The witness said he signed the letter of 4/12/2013 only after Jones Kromo was satisfied with its contents. When put to the witness that on 4/12/2013 Jones Kromo was not charged he said how can that be when mediation was ongoing?

However when the witness was shown the letter he wrote marked Exhibit 'G' he agreed to using the words demand in three instances.

Q.33.15 I put to you that the letter of demand was a situation you placed yourself in because you wanted compensation, correct?

20. In re examination the witness denied that the letter of 4/12/2013 was not and inducement for compensation. Furthermore he said it was not his intention to extort any one for compensation nor was it his intention to threaten anyone. He said Jones Kromo was the mastermind behind the letter. The witness said mediations were often used by the police force to settle matters out of court as it was normal police practise saying compensation was common in Papua New Guinea.

21. Mr. Korei submitted that the accused did not demand compensation from Jones Kromo or Amanab Forest Products Ltd and should not have been charged at the first place. The accused wrote the first letter upon the insistence of Kromo in order for him to be released from the police cells. He said it was never his client's intention to write that letter or demand compensation. Referring to the conduct of mediations carried out by Police, Mr Korei submitted that, that was considered part of police work and done every day. He said the accused did not demand compensation. The demand for compensation stemmed from a mediation carried out by Police. Defence Counsel submitted that the accused has with him 30 years of policing work and had carried out his job with distinction and honesty. Adding that the accused did not abuse his power in authority rather he exercised his discretion as a policeman under the circumstances.

Mr Korei submitted that the accused be acquitted because the State has failed to prove all the elements necessary under both counts beyond a reasonable doubt.

22. Mr Thomas submitted that all the elements required under the two counts were successfully made out by the State. The accused used his office and demanded compensation from the victim. He authorised and appointed one of his police officers to head the mediation team knowing full well that any demands for compensation would bear fruit in that the victim was the Chairman of Amanab Timber Forests Authority and had available resources to meet any demands made.

The State submitted that the accused remained very evasive with questions put to him about writing those letters demanding compensation. He maintained that the letters were written at the request of the victim. The State submitted that the mediation was only a front to get compensation from the victim. A third party Lisa Kerry was also present during the mediation which was heavily dominated by policemen.

Mr Thomas submitted that the mediation conducted was a one sided affair and the accused sanctioned it knowing full well that it was not on neutral grounds. He said the accused admitted in his record of interview of demanding for compensation however remains very defensive and evasive in cross examination. He said the accused was a very experienced police officer for 30 years and knows full well demanding compensation was a criminal offence.

The State submitted that the accused failed to use his better judgment in handling this situation and downplayed it until it was raised by Police Headquarters which resulted in investigations and his subsequent charges. He said the accused cannot blame ordinary citizensin this case. It was he who wrote the letter on his official police letter demanding compensation knowing full well that his demands would be met as the victim was chairman of a landowner timber company.

Mr Thomas submitted that the State had proven its case beyond reasonable doubt and asked for a conviction.

23. The State has presented two witnesses, Jones Kromo and Michael Saun, whose evidence, if accepted, would be sufficient to establish each of the four elements of the offence. Michael Saun's part was to reaffirm that a compensation cheque was delivered to the accused's office which was cashed at Vanimo Supermarket and cash returned to the accused. The money given to Sergeant Ludwig who distributed to policemen who assisted in the apprehension, escorting and mediation of the case. For the moment none of the State witnesses was obviously lying when they gave evidence, so on the face of the evidence the State has put together a reasonably sound case. The State's evidence of Police pursuing the K10, 000 compensation demanded by the accused, well before the mediation was conducted remains undisturbed. Three policemen using a police vehicle took charge of this responsibility on behalf of their "boss", the accused.

24. Defence likewise presented two witnesses, Ludwick Hoi and Salvatore Molkawul. Between the two witnesses Ludwick confirmed conducting the mediation with Kromo's wife in the absence of Kromo at the invitation of the accused in which K10, 000.00.was agreed upon. He agreed that when his "boss" was assaulted, the boss and other police officers demanded compensation. Salvatore admitted writing the letter however maintained that it was at the insistence of Jones Kromo. After aggressive cross examination Salvatore admitted that the letters he wrote were demand letters for compensation which he admitted was wrong. Defence evidence was tailored with lies and attempts to cover-up the crime. This became evident where rules of fairness were offended in 'several places. (Browne v Dunn)

25. I am now left with formulating a decision on whether the accused person is guilty or not guilty, a case of whose version to believe under all facts and circumstances now before me including comparing the demeanour of the witnesses. There is overwhelming uncontested documentary evidence on the part played by the accused and have him linked to the two counts: he admitted to writing the letter demanding compensation – he admitted receiving the cheque –he admitted it was wrong for a police officer to demand compensation –he directed a mediation be conducted – he admitted using police letterhead to demand for compensation – he admitted locking the accused at the police cells. I find it rather absurd for the accused to accompany Lisa Kerry to Jones Kromo's house to recover Tiki's debts? Jones Kromo did not borrow the money and he was not obligated to payed it back. He has nothing to do with Tiki's debts. It follows that the accused was partly responsible for the assault occasioned on him. He invited himself into Jones Kromo's house. A prudent police officer would do no such thing. The accused had ulterior motives in my view. For the moment, I must say that I tend to believe the State witnesses much more than the accused and his witnesses and will use this as a starting point.

26. Comparing the demeanour of Jones Kromo with that of Ludwick Hoi and Salvatore, Jones Kromo came across as much more impressive. His version of events was more believable. Much of the defence case – that the victim assaulted the accused and two other police officers - that the victim was drinking with ten men when approached, - was not put to Jones Kromo when he was cross-examined. This was a breach of the rule in Browne v Dunn (1893) 6 R 67 (HL), a rule of procedural fairness that applies in all criminal trials, and it gives rise to the inference that the story told by Salvatore and Ludwick was a concoction (Kutau v The State (2007) SC927).

Their interviews were conducted in June 2014 – 12 months before trial – there was plenty of time for them to compile evidence to support that version of events, so that it could be put squarely to the State witnesses in cross-examination. That was not done, however, so the natural inference to be drawn is that the accused's' version of events was not a truthful one.

27. A similar breach of the rule in Browne v Dunn occurred in relation to the evidence of Salvatore Molkawul. The accused said Jones Kromo's relatives made five (5) visits to his office to have him released from the police cells and that two policemen were assaulted by Jones Kromo when they went out to arrest him. Those allegations were never put to Jones Kromo in cross-examination.

I conclude that Mr Salvatore and Ludwick were telling only half-truths and that their evidence unreliable. Both witnesses remained very evasive and tried desperately throughout this trial to justify their actions.

28. Mr Korei's submission about the lack of a public complaint about this incident of demanding compensation at the police station is unfounded.The answer remains in the accused's admissions in his record of interview. I do not think that this was a critical defect in the State's case. If anything this incident would never have surfaced had Police Headquarters not shown interest in the conduct of its police officers in Vanimo Police Station? The matter was filed and put away. This is sufficient and this evidence is to be preferred that Salvatore was out to bury the hatchet over the conduct of his men in receiving and distributing K10, 00.00 as compensation payment.

None of defence counsels submissions convinced me that his client was a witness of truth and could be believed.

A person who, with intent to extort or gain anything, payment, or compensation from any person–

(i) ...
(ii) ...or
(iii) otherwise unlawfully threatens or intimidates any person, is guilty & < &#16a crime.

A person eed inPublivice who, in abuse buse of thof the aute authorithority of y of his ohis office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

National Court of Papua New Guinea

State v Molkawul No.1 [2015] PGNC 286; N6257 (10 November 2015)