State v Dau [2021] PGNC 388; N9253 (4 November 2021)

N9253

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 309 OF 2019

THE STATE

V

RUNNY DAU

Waigani: Berrigan J
2020: 15^th, 21^st September, 9^th October
2021: 10^th, 11^th, 15^th, 16^th and 25^th June & 4^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – S 87(1)(a)(i)(ii) of the Criminal Code – Official corruption – S 407(1)(b) of the Criminal Code – Conspiracy to defraud – Elements of offences – Guilty verdicts returned.

Cases Cited:
Papua New Guinea Cases

Kandakason v The State (1998) SC558
Balbal v The State (2007) SC860
Hagena v State (2017) SC1659
Emos v State (2017) SC1658
The State v. Ben Noel (2002) N2253
Paulus Pawa v. The State [1981] PNGLR 498
Roland Tom v State (2019) SC1833
Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
The State v Patilias Gamato & Terence Hetinue (2021) N9250
State v Toamara [1989] PNGLR 24; [1988-89] PNGLR 253
State v Mataio (2004) N2531
State v Duncan (2015) N5010
Brian Kindi Lawi v The State [1987] PNGLR 183

Wartoto v State (2019) SC1834

Havila Kavo v The State (2015) SC1450
James Singo v The State (2002) SC700
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Francis Natuwohala Laumadava [1994] PNGLR 291
Roland Tom v The State (2019) SC1833
The State v Iori Veraga (2005) N2849
State v Joseph Wai (2020) N8182
The State v Tony Kande & 2 Ors (2021) N9132

Overseas Cases

Driscoll v R [1977] HCA 43; (1977) 137 CLR 517
R v Salih [2005] VSCA 282; (2005) 160 A Crim R 310
De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Lewis [1994] 1 Qd R 613
Re Austin (1994) 1 Qd R 255
DPP (Cth) v Hogarth (1995) 93 A Crim R 452
Willers v R (1995) 81 A Crim R 219
Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493

References Cited

Section 1, 16, 83A, 87(1)(a) (i)(ii), 407(1)(b), 529 of the Criminal Code
Section 1 of the Customs Act 1951

Counsel

Mr. L. Jack, for the State
Mr. M. Kombri, for the Accused

DECISION ON VERDICT

4^th November, 2021

1. BERRIGAN J: The State presented an indictment against the accused containing two charges, one of official corruption and one of conspiracy to defraud, contrary to ss. 87(1)(a) and 407(1)(b) of the Criminal Code (Ch. 262) (Criminal Code), respectively.
   

Count 1 Runny Dau of Anda Village, Anglimp South Waghi, Jiwaka Province stands charged that she between the 1^st day of August 2018 and the 31^st day of September 2018 at Port Moresby in Papua New Guinea being employed in the Pubic Service as a Cargo Officer with the PNG Customs Services and charged by virtue of such employment with the duty of ensuring that all cargo containers received at the port go through inspection before signing off; corruptly received cash monies from one MICHAEL in the sum of Five Thousand Kina (K5, 000.00) for herself on account of her omitting to ensure that a 20 foot cargo container number MSKU7477095 containing contraband cigarettes labelled as double happiness, went through the required formal inspection, in consideration that she would in the discharge of her duties omit for the inspection of the container.

Count 2 Runny Dau of Anda Village, Anglimp South Waghi, Jiwaka Province stands charged that she between the 1^st day of August 2018 and the 31^st day of September 2018 at Port Moresby in Papua New Guinea conspired with one Michael and others to defraud the Independent State of Papua New Guinea through the avoidance of payment of tax and customs duty for the contraband cigarettes, in the sum of Two Million, Eight Hundred and Forty-Seven Thousand, Six Hundred and Seventy-Nine Kina and Thirty-Four Toea (K2, 847, 679.34).

2. It is alleged that whilst employed as a Cargo Officer by the PNG Customs Service stationed at Motukea Wharf between August and September 2018, the accused conspired with others to import contraband cigarettes into the country by shipment in a container imported by F&R Investment Limited. The accused facilitated the bypassing of normal processes and failed to ensure that the shipment was formally inspected before it was cleared for release. As a result, she enabled the importers to avoid payment of tax and customs duty for the contraband cigarettes. She received K5000 for facilitating the clearance.
   

STATE CASE

3. The State called eight witnesses and tendered 19 documentary exhibits. The accused’s record of interview conducted on 5 February 2019 was admitted by consent, Exhibit P1. A confessional statement was excluded following voir dire.
   
4. The State called a number of officers from PNG Customs. I found all of them to be credible and reliable. I make this assessment having had regard to the content of the evidence of each witness, on its own and in the context of the evidence as a whole, together with the demeanour of the witness whilst giving their evidence, and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173.
   
5. Elio Api was with the PNG Customs Service for 31 years. His evidence was for the most part formal in nature and outlined the roles and responsibilities of customs officers and the process of clearing shipments through customs. Defence counsel submitted that his evidence was inconsistent and a recent invention.
   
6. It is well established that the existence of a prior inconsistent statement does not of itself make a witness’s evidence unreliable: Kandakason v The State (1998) SC558. It is a matter to be considered when assessing a witness’s credibility or reliability, if that evidence demonstrates that the witness is unable or unwilling to accurately recall relevant events: Driscoll v R [1977] HCA 43; (1977) 137 CLR 517. A witness who makes a prior inconsistent statement is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies into their stories, truthful witnesses may make mistakes about details: R v Salih [2005] VSCA 282; (2005) 160 A Crim R 310. As the Supreme Court explained in Balbal v The State (2007) SC860:
   

“[Q]uestions of inconsistency do not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the Court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. Thus in our view, a prior statement that omits other evidence but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement”.

7. The witness’ evidence was not inconsistent with his prior statement. His statement outlined the conduct of the investigation. His oral testimony was generally as to the role of customs and the process of importation. It is not appropriate for the State to lead evidence from a witness without prior notice but there cannot be any real dispute about the evidence he gave as to those matters, and the evidence is supported by that from other witnesses.
   
8. He also gave evidence about the computer system used by Customs and that the container was flagged “red” on the system, meaning that it was identified as potentially containing prohibited or illegal goods. I have no reason to doubt his evidence but the State did not produce documentary evidence of that from the computer system as to on what date that occurred, or whether the accused accessed the system at the time it was flagged.
   
9. I accept Mr Api’s evidence led under cross-examination, and reflected in Exhibit D2, copy of court documents, that Lin Zhong, owner of the premises at 9 Mile where the container of cigarettes was delivered on 7 September 2018, was convicted of unlawful possession of smuggled goods, namely contraband Double Happiness cigarettes at an estimated market value of K4.18m. He was fined K40,000, to serve 4 years in default.
   
10. I found Kim Kure, the lead investigator, to be a very impressive witness. Defence counsel objected to him being allowed to give evidence on the basis that at the committal it was alleged that the loss of excise and import duties amounted to K1,748,000 but it is now alleged that the figure is K2,847,679. The witness was competent and compellable. His evidence was relevant to the charges against the accused. The accused may have wished to challenge his evidence but it was not inadmissible. Moreover, I accept Kure’s evidence that he miscalculated the amount of duties in the first instance. It is not a recent invention. It is a matter of mathematics. The earlier figure was wrong. It has now been corrected applying the rates applicable pursuant to directions from the Chief Commissioner of Customs as of 30 May 2018: Exhibits P2 and P3. Both his initial and corrected calculations are clearly set out in the table prepared by him: Exhibit P4. The amount of duty involved is not an essential element of the offence of conspiracy to defraud. The State did not need to include the actual amount of loss in the indictment. The accused has been on notice of the corrected figure for some time, and the fact that the conspiracy alleged is more serious as a result of the corrected figure does not constitute any prejudice to the accused in her defence.
    
11. The evidence of Neveh Rodney, of Swift Customs Agency, was brief and not challenged.
    
12. I found Pauline Karo, who is a Compiler and Freight Fowarder with Swift Customs Agency a credible and reliable witness. I reject the submission that she was untruthful because she said that the accused was the “owner” of the shipment for clearing. It is clear that the witness did not mean that the accused owned the shipment in any legal sense. She meant that the accused was the one that from her perspective was taking ownership of, or a leading role, in clearing the container.
    
13. I also accept the evidence of Bonny Haijap of Customs. She gave her evidence in a clear and confident manner. She was not shaken under cross-examination. Her evidence is considered in more detail below.
    
14. Simon Rui gave evidence for the State under the protection of immunity. He is properly regarded as an accomplice. It is well settled that it is dangerous to convict on the uncorroborated evidence of an accomplice. Where evidence of an accomplice is involved, the trial judge should take heed of such danger and warn himself: Hagena v State (2017) SC1659; Emos v State (2017) SC1658 the Supreme Court; The State –v- Nataembo Wanu [1977] PNGLR 152, The State –v- Titeva Fineko [1978] PNGLR 262, The State –v- Amoko – Amoko [1981] PNGLR 373; The State –v- Francis Laumadava [1994] PNGLR 291; Private Nebare Dege v. The State (2009) SC1308.
    
15. I must also be mindful in this case because the witness is one who has been or could be charged in relation to the alleged offence but against whom the State has decided not to proceed, in exchange for him giving evidence against the accused: The State v. Ben Noel (2002) N2253.
    
16. Accordingly, I approach the evidence of Simon Rui with caution. I remind myself that there is a likelihood that a person who has been involved in an offence may have reasons of self-interest to lie or falsely implicate another in the commission of the offence. That is particularly so in this case where he has been given an immunity from prosecution and has something to gain by doing so. Furthermore, I take note of the inconsistencies in the evidence given at trial and the statements contained in his record of interview. Accordingly, I warn myself that it would be dangerous for me to convict the accused on the basis of his evidence unless it is corroborated by other witnesses or admitted by the accused herself. Where his evidence is not corroborated I will disregard it.
    
17. Having said that much of Simon’s evidence as to the role he played is corroborated by the evidence of other witnesses, Pauline and Bonny, and the admissions of the accused herself in her record of interview. That evidence is discussed below.
    
18. Defence counsel objected to Simon giving evidence different from that in his statement of 18 June 2019. It is not a basis for objecting to the giving of evidence but rather a matter by which through cross-examination, and the tendering of a prior inconsistent statement, the defence may seek to establish that the witness lacks credibility. I note here that the accused was on notice of the evidence that the State intended to call from the witness as set out in his record of interview. Whilst the record of interview was not admissible against the accused, it formed part of the depositions. The State indicated that it intended to rely on it in the pre-trial review statement, until the accused filed a notice of voir dire objecting to it, at which stage I reminded the parties that a prior out of court statement of an accomplice is not admissible against anyone but its maker.
    
19. I note that Simon’s statement of 18 June 2019, which was tendered for the purpose of establishing inconsistency, is concerned only with the events of the evening of 7 September 2018. It appears to me that the statement was intended to clarify the statements made by him in his record of interview about that night, which on one view may have been an attempt by the witness to distance himself from events. That is it appears that the purpose of his statement was to “come clean” and give a full and frank account of the events of 7 September 2018. That should have been explained in his statement and his oral testimony and it was not. The inconsistencies about which Simon was cross-examined, however, were essentially between his record of interview on one hand and his statement and oral evidence on the other. They concern, in particular, monies purportedly given to him by the accused, to be given to Ernest, a Customs officer, on the evening of 7 September 2018 following seizure of the container. In his record of interview, he said that the accused asked him to give K60,000 to Ernest several days later, but he never did so. In his statement and oral testimony, he said that he was given K40,000 by Michael at about 11 pm on 7 September to give to the accused, that he met up with her at midnight, that she gave him K30,000 of that to give to Ernest, and that he did so the following day. Whilst I warn myself about the inconsistencies and the fact that Simon is an accomplice, having regard to the phone records admitted by consent and referred to below, Exhibit P8, I do make certain findings set out below in this regard. There were other inconsistencies regarding the circumstances, and amounts, of monies purportedly given by Simon to him to police for which he says he was compensated by Michael through the accused. In the absence of corroboration, I disregard this evidence.
    
20. Telephone records were tendered by consent: Exhibit P8. Others were admitted over objection: Exhibit P17. No analysis of either has been provided.
    
21. No objection was taken to Exhibit P8 which was obtained under search warrant 161/2018 regarding the following telephone records: Runny Dau, 71150865; Gloria Mugugia, 74443823; Simon Rui, 74245015/76457365; and Michael (Fu Quan He), 73333222.
    
22. It does not appear that there is any dispute that the numbers correspond with the names attributed to them in the search warrant. The statement provided by the officer from Digicel appears to confirm this. For the avoidance of doubt, however, the accused admits in her record of interview that her number at the time was 71150865; and Simon Rui’s was 74245015. Having regard to the reference to the name “Michael”, and the content of the text messages exchanged between the accused’s mobile and the mobile number 67573333222, in the context of the evidence as a whole, I find that the text messages set out in the table below are between the accused and the “Michael” referred to in the indictment.
    
23. Counsel were asked to agree on the records to be included in Exhibit P8. It does not seem to contain separate records for Simon Rui 7424 5015 or the accused herself 7115 0865.
    
24. It is unclear to whom the phone records admitted over objection relate, Exhibit P17. The defence has asked me to disregard them and I do so.
    

DEFENCE CASE

25. The accused exercised her right to remain silent at trial. I make it clear that I draw no inference of guilt from this: Pawa v The State [1981] PNGLR 498. The accused is under no obligation to prove anything in this trial. The question remains whether the State has established the case against the accused beyond reasonable doubt.
    

FINDINGS OF FACT

26. I find the following facts.
    
27. The role of the PNG Customs Service is to collect revenue from the State, facilitate legitimate trade, and protect the community by stopping the importation of illicit, counterfeit or harmful goods into the country.
    
28. I find on the evidence of Api and Karo that when importing to PNG via sea, goods are packed by exporters into a container. A commercial invoice and packing list are issued containing a description of the goods, and the quantity and value of goods packed in the container. The shipping company issues a bill of lading. Those three documents, the commercial invoice, packing list and bill of lading are provided to the importer. The importer provides the documents to a customs broker, also referred to as a shipping agent, who is licenced to clear goods on behalf of importers. The broker compiles a customs declaration containing a description of the goods, together with the applicable duties and rates for the purpose of ensuring that correct duties and rates are paid to the State. Importers go to the Customs office, make payment and are issued with a receipt. They take the receipt and the customs declaration form to the shipping agent to show that the shipment has been cleared by Customs. The shipping agent then issues a shipping delivery order to say that customs requirements have been met, duties paid and the shipping agent/customs broker has collected their dues, freight costs etc. If there is nothing to declare for the purposes of quarantine, then the container will come to the customs officer at the wharf. The officer is required to check if the container is to be inspected. If not the customs officer will stamp and endorse the delivery order to the effect that they are satisfied that no further examination or inspection is required and the goods can leave the wharf. Once the delivery order is endorsed, the shipping agent issues the final document called a delivery docket showing that the container has been cleared from the wharf and identifying the destination to which it is to be delivered. Documentation is processed through Customs ASYCUDA WORLD electronic system.
    
29. At the relevant time Runny Dau was employed as a Cargo Officer with PNG Customs Services and had been for a period of three to four years. By her own admission in the record of interview, her responsibilities included depot reconciliations, depot audits, manifest audits, manifest amendments, counter service, approval of single movement permissions and authorising delivery orders for clearance.
    
30. On 13 August 2018 a Chinese man who identified himself as Mr Lin went to Swift Agencies’ office, looking for a clearing agent to clear his container. Swift Agencies (Ltd) is a customs broker and freight forwarder. They are responsible for the delivery of cargo to an importer and conduct clearances on behalf of PNG Customs. Ms Rodney told him to come back with the bill of lading, commercial invoice and packing list. On 21 August he returned with a local man who identified himself as Simon. They provided the bill of lading, commercial invoice and packing list for container number MSKU7477095/ML-VN2984435 for the importer, F&R Investment Ltd: Exhibits P9, 10 and P11. According to the documents the container contained toilet paper, plastic snack boxes and rakes, dishcloths and toilet paper to a total value of USD6,569.40.
    
31. F&R Investment Ltd was incorporated in February 2018 by Felix Joe and Richard Keremon: Exhibit P6.
    
32. Ms Rodney referred them to Pauline Karo, a Compiler and Freight Fowarder at Swift Agencies.
    
33. On 4 September Pauline Karo “compiled” or entered the documents into the customs electronic system, ASYCUDA WORLD, which calculates the total amount payable to PNG Customs. Exhibit P12 shows the amount to be paid by F&R Investments of PGK7835.80. She subsequently received Customs Receipt No 17165 in the sum of K7835.80 on 6 September 2018: Exhibit P13, which was printed out by Swift’s Agencies showing that F&R had paid the duties. On the same day she issued the house bill delivery order: Exhibit P14. She gave it to Simon from F&R. After that it was for him to get the master bill of lading and a permit to land from the National Agriculture Quarantine & Inspection Authority (NAQIA), and then a day pass to take the container out.
    
34. I find that the accused directed Simon to go and see Pauline on 6 September 2018. Prior to issuing the delivery order that day Simon called the accused on his mobile phone and asked Pauline to speak to her because Pauline had not yet issued the delivery order as payment had not yet been confirmed.
    
35. Whilst Pauline had never met the accused, I find that it was the accused who spoke to Pauline on 6 September. This is established by the evidence of Pauline who said that she spoke to “Runny”, the evidence of Simon who said that he called the accused, photograph Exhibit P17, which he identified as being a photograph of him handing his phone to Pauline for that purpose, and the admission of the accused in her record of interview, that she did so: Exhibit P1, Q&A54, 55.
    
36. I accept the evidence of Pauline that the accused told Pauline “in a harsh way” that she had to release the delivery order to Simon and that she was rushing Pauline to have it released. After confirming payment Pauline issued the delivery order: Exhibit P15.
    
37. Bonny Hajaip, has been a Manifest Auditor in the Cargo Management Section of PNG Customs for 7 years. Her responsibility is to verify the manifest, ensuring that the manifest lodged by shipping authorities corresponds with the shipping documents provided to Customs and that manifests are lodged in priority of arrival of the vessel. In doing so she ensures that the shipping agents comply with Customs laws and regulations. On 6 September 2018 she viewed the manifest that was lodged by Swift Agencies. She was satisfied that all the details provided corresponded with those on the system and endorsed the manifest. But the weight and the number of packages was suspicious. She had worked in the Exercise and Health Section and used to deal with cigarettes and alcohol. When she saw the weight and packages it suggested to her it could be something other than what was declared on the manifest. The number of packages declared was more or less exactly the same as that declared on a cigarette entry. She called her colleague, Sylvester Komoin, who was based at the wharf on the same day and advised him to inspect the container to see if it was what was declared or something different. He did not stop the container. Sylvester Komoin is the accused’s supervisor.
    
38. Exhibit 5 shows that the accused endorsed the delivery order on 7 September 2018.
    
39. I find on the evidence of Pauline and Bonny that Bonny called Pauline at Swift Agencies over the phone on 7 September 2018. Bonny told Pauline to have the container taken to the Swift yard at 6 Mile for inspection. She told Pauline that she was going to inspect the container to confirm her suspicions. Pauline told her that the container had already been released and left the wharf. Because of that Bonny told her that she would do the inspection at Swift’s yard. Pauline called Simon and informed him. At the time Bonny made the call the accused was with Bonny in the office. The accused overheard the conversation and told her that she knows the importer and “they have been importing for some time and they have been compliant with all the importations and it is the same old things that they import”. Based on that Bonny called Pauline again and advised her that inspection was cancelled. She told her to deliver the container to the location. Swift logistics delivered the container. P 15 is a Container Delivery Docket Number 44057 issued by Swift on 7 September 2018 P15, which shows that the container was delivered to 9 Mile Plaza on that day.
    
40. As above, Bonny was an impressive witness. She was not defensive and openly agreed that if she had inspected the container the contraband cigarettes would have been discovered. I reject the suggestion that she is unreliable because she is trying to shift blame to the accused because she decided not to inspect the container herself.
    
41. In response to my question she explained that even if the container had been released from the wharf she could still inspect it. Officers have the power to liaise with the Customs enforcement team and inspect outside of the Customs control area. It also appears from Pauline’s evidence that Swift still had control of the container at the time, that is whilst it might have been “released” from the wharf, and may even have physically left the wharf, it had not yet been delivered to F&R’s yard, although as Bonny makes clear, that would not have stopped inspection in any event.
    
42. The accused admits in her record of interview both that Simon called her, and that she spoke to Bonny. She says, however, that she told Bonny that “Michael is my good friend and if you would like to do the inspection then it’s up to you”: Exhibit P1, Q&A 76 to 84. This is a clear attempt to distance herself from the events and I accept Bonny’s evidence as to what was actually said, set out above.
    
43. Despite the fact that Bonny called off the inspection, the container was subsequently seized by Customs later that day and found to contain 114 cartons of cigarettes, under the brand name “Double Happiness”. The cigarettes were declared by Customs to be “unfit for consumption for smoking communities” and destroyed.
    
44. By the accused’s own admission in the record of interview, the accused knows a Chinese man called Michael, who owns Yu Hang Limited. She came to know him through Captain Taisa “whom we used to inspection on his container at his business premises at Badili once they are targeted on red lane for inspection”. During these inspections he used to provide lunch. When Captain was retrenched, Michael “normally came to me (the accused) for endorsement of his imports for Yu Hang Limited”. She and Michael often met to talk about business and have assisted one other. She helped him to purchase a vehicle locally to run his business and he provides assistance to both her and Felix Joe, who had cancer. She was aware that Michael uses F&R Investment to import goods: Q&A23.
    
45. Simon assisted Michael and they went to Swift Customs for the clearance of the container. Swift brought the delivery order to the counter for endorsement so she stamped the Delivery Order as part of her normal duties: Q&A23. Simon told her that he needed her assistance to endorse the delivery order: Q&A 52.
    
46. The accused told Pauline to “assist them”, Michael and Simon: Q&A 54. She endorsed the delivery order to allow the release of the container out of Motukea Wharf: Q&A 65. Michael called her and she told him that the container was ready: Q&A 74.
    
47. The accused overhead Bonny direct Pauline to have the container taken for inspection. The accused also received a call from Simon about the container going to Swift’s yard for inspection: Q&A 76.
    
48. She told Bonny that Michael is her good friend, that she knew the owners of F& R, and that there were no issues with their previous imports: Q&A 81.
    
49. She knew that Simon was just the runner and providing assistance to Michael to deliver the container: Q&A 87.
    
50. Michael gave her a total of K5000 for assisting him to bring in the container.
    
51. Michael came and gave her K2000 at tunnel Central Waigani BSP: Q&A 147-149.
    
52. He gave her an additional K3000 at about 7 pm on 7 September 2018 at the Vision City car park. She went to Michael and he gave her the money. Simon got into her car and she gave K1500 to Simon at 7 pm at the Vision City car park: Q&A 164 to 167. She also gave K100 to a customs officer called Veronica: Q&A 168.
    
53. The container was subsequently seized on 7 September 2018.
    
54. Exhibit P8 shows that the accused was communicating with Gloria Mugugia on 7444 3822 prior to the arrival of the container about its arrival. The accused admits that this is Mugugia’s number in her record of interview: Q&A188.
    
55. Exhibit P8 establishes that the following text messages were exchanged between the accused and Michael (verbatim, emphasis mine):
    

Date	Time	From	To	Message
20/08/2018	9:13:37	67571150865 Accused	67573333222 Michael	Michael....u need to go to shift agency on Wednesday to get the bill of lading from them...pls go there @9.30am..
20/08/2018	9:26:43	67573333222 Michael	67571150865 Accused	Ok
20/08/2018	10:29:47	67571150865 Accused	67573333222 Michael	= Michael... my resumption date is nxt wk Wednesday...but I need to go back tomorrow to resume..... I am needing k1500 to give to HR people like last time
20/08/2018	10:29:47	67571150865 Accused	67573333222 Michael	= we Did it for that girl...I have to be in the office by then...to be on the safe side...pls come n give mi this coins...I am with the officer at bs
20/08/2018	10:29:48	67571150865 Accused	67573333222 Michael	=p bank...tunel side... pls come here nw
20/08/2018	10:30:03	67571150865 Accused	67573333222 Michael	=p bank...tunel side... pls come here nw
20/08/2018	10:30:13	67571150865 Accused	67573333222 Michael	=p bank...tunel side... pls come here nw
20/08/2018	11:10:45	67571150865 Accused	67573333222 Michael	Michael u wer?
22/08/2018	12:11:22	67571150865 Accused	67573333222 Michael	Michael...this vessel Helmuth rambo is not on the sechudle...pls call your friend from China...I am sending Simon to Swift... we give u the details later
23/08/2018	14:39:41	67571150865 Accused	67573333222 Michael	71937017...Simon #...he is calling u
23/08/2018	14:40:12	67571150865 Accused	67573333222 Michael	he is this #
23/08/2018	15:48:38	67573333222 Michael	67571150865 Accused	I stay date carpark
29/08/2018	16:27:54	67571150865 Accused	67573333222 Michael	Please Call Me: [phone]
29/08/2018	16:28:34	67571150865 Accused	67573333222 Michael	Please Call Me: [phone]
30/08/2018	11:09:33	67571150865 Accused	67573333222 Michael	Please Call Me: [phone]
30/08/2018	11:45:43	67571150865 Accused	67573333222 Michael	Please Call Me: [phone]
30/08/2018	11:48:00	67573333222 Michael	67571150865 Accused	71121010jery
30/08/2018	11:48:01	67573333222 Michael	67571150865 Accused	71121010jery
03/09/2018	09:06:35	67571150865 Accused	67573333222 Michael	Txt me...I am in the office
03/09/2018	09:07:19	67573333222 Michael	67571150865 Accused	Can you tell simon come see me I call him no answer
03/09/2018	09:07:53	67571150865 Accused	67573333222 Michael	Ok
03/09/2018	10:15:37	67573333222 Michael	67571150865 Accused	71937017
03/09/2018	10:20:45	67571150865 Accused	67573333222 Michael	You txt mi contaniner no kam
03/09/2018	11:09:56	67573333222 Michael	67571150865 Accused	MSK7477095 ML-VN2984435
03/09/2018	11:11:33	67571150865 Accused	67573333222 Michael	Come Rh nw
03/09/2018	11:11:48	67573333222 Michael	67571150865 Accused	I tell simon go see you first
03/09/2018	11:12:04	67571150865 Accused	67573333222 Michael	No...U come Rh nw
03/09/2018	11:12:13	67573333222 Michael	67571150865 Accused	OK I come see you now
03/09/2018	11:12:34	67571150865 Accused	67573333222 Michael	I am at Rh...U come now
03/09/2018	11:16:21	67573333222 Michael	67571150865 Accused	I am come to you tell simon come see us
03/09/2018	11:17:05	67571150865 Accused	67573333222 Michael	Ok
03/09/2018	11:17:38	67573333222 Michael	67571150865 Accused	he get invoice already
05/09/2018	14:08:46	67571150865 Accused	67573333222 Michael	K7835.80
05/09/2018	14:09:21	67571150865 Accused	67573333222 Michael	Go pay this nw in the bank..
05/09/2018	14:13:32	67571150865 Accused	67573333222 Michael	Call mi on 75810000
05/09/2018	14:15:40	67573333222 Michael	67571150865 Accused	you change sim card go another phone
05/09/2018	14:16:08	67571150865 Accused	67573333222 Michael	OK wait
05/09/2018	14:20:09	67571150865 Accused	67573333222 Michael	B mobile can not call
05/09/2018	14:20:35	67571150865 Accused	67573333222 Michael	75810000
05/09/2018	14:21:20	67573333222 Michael	67571150865 Accused	can no call to you
05/09/2018	14:21:42	67571150865 Accused	67573333222 Michael	Just go to the bank and make this payment of K7835.80
05/09/2018	14:22:06	67573333222 Michael	67571150865 Accused	sim card change I can call you
05/09/2018	14:22:46	67571150865 Accused	67573333222 Michael	U pay come give receipt n I print custom receipt
05/09/2018	14:23:27	67573333222 Michael	67571150865 Accused	Ok
05/09/2018	14:24:06	67573333222 Michael	67571150865 Accused	can you change sim card for your two phone
7/09/2018	19:55:37	67571150865 Accused	67573333222 Michael	put mi n u out of this, tell your china boys call custom man n give him money nw
7/09/2018	1935:38	67571150865 Accused	67573333222 Michael	put mi n u out of this, tell your china boys call custom man n give him money nw
7/09/2018	19:55:48	67571150865 Accused	67573333222 Michael	Friday ye..they need money..
7/09/2018	19:55:51	67571150865 Accused	67573333222 Michael	put mi n u out of this, tell your china boys call custom man n give him money nw
7/09/2018	19:56:11	67573333222 Michael	67571150865 Accused	OK
7/09/2018	20:19:00	67571150865 Accused	67573333222 Michael	Did custom man leave their ph # with them?
7/09/2018	20:19:36	67573333222 Michael	67571150865 Accused	No I tell simon go check
7/09/2018	20:19:59	67571150865 Accused	67573333222 Michael	if they have custom man ph # then call him nw n go give them money nw
7/09/2018	20:20:25	67571150865 Accused	67573333222 Michael	You sty out of this..just Tell them what to do..
7/09/2018	20:20:40	67573333222 Michael	67571150865 Accused	OK
7/09/2018	20:21:17	67571150865 Accused	67573333222 Michael	If you need simon...call him come sty with u..
7/09/2018	20:21:36	67573333222 Michael	67571150865 Accused	OK sister
7/09/2018	20:21:37	67573333222 Michael	67571150865 Accused	OK sister
7/09/2018	20:22:37	67573333222 Michael	67571150865 Accused	OK sister
7/09/2018	20:25:37	67573333222 Michael	67571150865 Accused	OK sister
7/09/2018	20:31:56	67573333222 Michael	67571150865 Accused	OK sister
7/09/2018	22:20:24	67573333222 Michael	67571150865 Accused	Call me sister
7/09/2018	23:17:57	67573333222 Michael	67571150865 Accused	Call me sister
7/09/2018	23:24:08	67571150865 Accused	67573333222 Michael	K40,000 give it to simon nw...
7/09/2018	23:24:24	67571150865 Accused	67573333222 Michael	He talked to boss already
7/09/2018	23:24:49	67571150865 Accused	67573333222 Michael	We clear this out now
8/09/2018	9:45:07	67571150865 Accused	67573333222 Michael	Cal simon nw.. he will tell u what am telling u
8/09/2018	9:46:14	67573333222 Michael	67571150865 Accused	He n answer phone
8/09/2018	9:47:18	67571150865 Accused	67573333222 Michael	He went home 2 in the mornin so let him awake n ge will csl n tell u
8/09/2018	9:47:37	67571150865 Accused	67573333222 Michael	Everything is taken care of .. don’t worry
8/09/2018	9:48:05	67573333222 Michael	67571150865 Accused	OK my sister
8/09/2018	9:48:09	67573333222 Michael	67571150865 Accused	Swife MERY give us trouble
8/09/2018	9:49:41	67573333222 Michael	67571150865 Accused	Bad our name
8/09/2018	9:51:26	67571150865 Accused	67573333222 Michael	Yes that stupid laddy
8/09/2018	9:52:32	67571150865 Accused	67573333222 Michael	Yes only that use less
8/09/2018	9:54:42	67573333222 Michael	67571150865 Accused	So tell simon hurry up cover this case no good china man will suspaect us will no trust us
8/09/2018	9:56:26	67571150865 Accused	67573333222 Michael	Tell your asshole.. he has to be in here to face all these.. not us.. your stupid China man

56. The accused admitted in her record of interview that Simon gave Earnest Ilarupa K60,000, although she said she was only aware because Simon and/or Michael told her: Q&A 171 to 174. The phone records establish otherwise.
    
57. The accused made a trip with her son for medical reasons to Brisbane on 16 September 2018 and stayed for about three weeks with family: Q&A 115. The tickets cost K3000. She says that family contributed to the cost and she used her own money.
    
58. The accused says that she took a loan for K30,000 from BSP for the purchase of land costing K4000 in January 2018 and building materials costing K6000: Q&A. There is no evidence to support this, nor anything from the State to exclude it.
    
59. The accused’s net fortnightly salary is between K1,270.74 to K1315.85: Q&A 142.
    
60. There are other admissions made by the accused in the record of interview which relate to other allegations not the subject of these proceedings. There was no submission by either party as to whether they should be regarded as similar fact evidence and I disregard them.
    

SUBMISSIONS

61. The State failed to address the elements of either offence, or analyse them according to the evidence, of which an incomplete summary was provided. No analysis of the record of interview, or telephone records, was provided.
    
62. The State submits that the accused was a very experienced Customs officer, the ringleader and the one making the calls and giving directions to Simon. The process involved different divisions within Customs and she was in contact with officer Gloria Mugugia at the Intelligence Section and Earnest Ilarupa border response and enforcement and she targeted these two people. Not only that but she interfered with Pauline Karo and Bonny Hajaip. She just signed and endorsed the delivery order at the wharf. She knew very well that the container was flagged for inspection.
    
63. Defence Counsel submits that the accused’s case as contained in her record of interview is that she guided Simon to the right officers and through the correct process to clear the container containing the contraband goods but she did not know the contents at the time she provided the assistance. The conversation with Pauline was limited to the availability of documents. It was not her duty to inspect the container when clearance had already been given. It was up to Bonny to do it but she chose not to. The accused used her own money to fund her trip to Brisbane, purchase land at Morata and build her house there.
    
64. The defence submits that the allegation is that the accused received monies prior to allowing the container to pass through without inspection. But the evidence of Kure Kim establishes that the accused received K2000 after the container had left Customs. The last element “on account of anything done or to be done in the discharge of his duties of his office” is therefore not satisfied. Furthermore, she only received K2000 not K5000 as alleged in the indictment. Therefore, the allegations must fail.
    
65. With respect to conspiracy, counsel submits that both Elio Api and Kure Kim stated that excise and customs duties cannot be imposed on contraband goods that are imported. That means that the State was not deprived of its rights to collect K2,847.679.34 as excise and import duties. Furthermore, the container was released without any involvement from the accused. No deceit, fraudulent or dishonest means was employed by the accused. As such the charge must fail.
    
66. In the event that the Court finds that both charges are made out, the court should find that Count 2 is an alternative to Count 1 and should convict on Count 1 applying s 16 of the Criminal Code.
    

CIRCUMSTANTIAL CASE

67. The State’s case against the accused is partly circumstantial. The principles governing such cases are well established. In a case resting wholly or substantially upon circumstantial evidence, an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 quoting Peacock v the King [1911] HCA 66; (1911) 13 CLR 619. See more recently Maladina v The State (2016) SC1495. See also The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308):

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstantial evidence are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R 619 at 634. To enable the jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen (1963) C.L.R 234 at 252, see also Thomas v. The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp. 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence: Peacock v. The Queen at p. 661.

An inference as to the guilt of an accused should be drawn only after the court had made a full and thorough evaluation of all the circumstances in evidence ...”.

68. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence: see the comments of the High Court of Australia in De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at [48] referred to in The State v Epei (2019) N7845. Similarly, the principles applicable in a circumstantial case are no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: see Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at [2]. This will depend upon whether all of the evidence establishes that the only rational conclusion is the guilt of the accused.
    
69. As above, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Paulus Pawa (supra). The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: Baden-Clay at [46] to [47] (applying R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 638 [48]. See also Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535; [1984] HCA 7). The essential elements of the offence must be proved beyond reasonable doubt but it is not necessary for every fact, or every piece of evidence, relied upon to be proved beyond reasonable doubt: Shepherd v R, supra at [6].
    
70. The High Court also observed in Baden-Clay, approved in Roland Tom v State (2019) SC1833 that:

“a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."

71. Further, at [62]: “It may readily be accepted that "it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference."[2] Where an accused chooses to give evidence, however, that evidence may narrow the range of alternative hypothesis reasonably available upon the evidence: [54], [55], [62] and [63]. As I said in Epei (supra) at [50], to my mind that approach equally applies in this jurisdiction. Whilst the accused did not give evidence in this case she made admissions in her interview which may similarly narrow the range of alternative hypothesis reasonably available on the evidence.
    

OFFICIAL CORRUPTION

72. Section 87(1)(a) of the Criminal Code provides that:
    

(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 any thing 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

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

73. To establish the offence of official corruption contrary to s 87(1)(a)(i)(ii) of the Criminal Code the State must prove beyond reasonable doubt that the accused:
    
    • (a) being employed in the Public Service or the holder of any public office;
    • (b) charged with the performance of any duty by virtue of that employment or office (not being a duty touching the administration of justice);
    • (c) corruptly;
    • (d) asks, receives or obtains, or agrees or attempts to receive or obtain;
    • (e) any property or benefit;
    • (f) for himself or any other person;
    • (g) on account of any thing done or omitted to be done, or to be done or omitted to be done by him;
    • (h) in the discharge of the duties of his office.
      

The State v Patilias Gamato & Terence Hetinue (2021), 3 November 2021.

Being employed in the Public Service

74. There is no dispute and I find beyond reasonable doubt that the accused was employed in the Public Service. The Customs Service is a division of the Internal Revenue Commission: s 1 of the Customs Act 1951. The Internal Revenue Commission is a body established by statute for the purposes of s 83A of the Criminal Code, which defines a “person employed in the Public Service”, which is, in any event, an inclusive definition: Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112.
    

Charged with the performance of any duty by virtue of that employment

75. No issue appears to have been taken with the second element. The State failed to provide a duty statement but there can be no doubt that the accused was charged by virtue of her employment with the duty of ensuring the collection of duties and taxes payable to the Customs Commissioner and preventing the entry into the country of prohibited or controlled goods. I accept the evidence of the State’s witnesses that any officer of Customs has a duty to halt a container leaving the wharf, or call for its inspection even after it has left the wharf, if for any reason they believe it should be inspected. The accused had been an officer of PNG Customs for a number of years and would have been aware of that. That is particularly so given that she was a Cargo Officer and the person responsible for releasing containers from the wharf. For the reasons outlined below the accused was well aware that the container should have been inspected.
    
76. Accordingly, I find beyond reasonable doubt that the accused was charged by virtue of her employment with the duty of ensuring the inspection of all containers before “signing off” or endorsing their release.
    

Received, property, for herself

77. I am further satisfied beyond reasonable doubt that the accused “received”, “property”, “for herself”, namely cash monies in the sum of K5000 from “one Michael”.
    
78. “Property” includes every thing, animate or inanimate, capable of being the subject of ownership: s 1 of the Criminal Code, and clearly include cash money.
    
79. As above, the accused admits Michael gave her a total of K5000 for assisting him to bring in the container. What Kim Kure says about when the accused received the money was based on his recollection of what the accused said in the interview and is hearsay in any event. It is clear from her answers in the record of interview that Michael “came” and gave her K2000 at the Tunnel Central Waigani BSP on an unspecified date. And that she received a further K3000 at about 7 pm on 7 September 2018 when she “went to him” at the Vision City car park. The only rational inference in the circumstances is that the payments occurred on two separate occasions and that K2000 was received before the container was released, and a further K3000 after it was released on the 7^th September 2018. Texts exchanged between the accused and Michael on 20 August 2018 further support this conclusion.
    
80. The fact that the accused gave K1500 of the K5000 received to Simon, by her own admission, does not change the fact that she received K5000 for herself from Michael. It does, of course, speak to the role she played in directing Simon. Moreover, the amount of monies averred in the indictment is not an essential element of the offence of s 87(1)(a). The offence concerns “any property or benefit”. Even if the State had established only K2000 that would not mean that the count would fail, only that the extent of property received was less than that alleged. Under s. 529 (general rules applicable to indictments) the value of anything mentioned in an indictment does not have to be set forth in the indictment unless the value is an essential element of the offence. In the case of offences charged under s. 87(1) it cannot be said that the value of the "property or benefit" is an essential element.
    

On account of any thing done or omitted to be done, or to be done or omitted to be done

81. I am satisfied beyond reasonable doubt furthermore that the accused received the monies on account of omitting to ensure that the container went through the required formal inspection. That is the only rational inference in all of the circumstances.
    
82. The accused was a Cargo Officer, and authorised to release containers from the wharf. She was interested in the container from before it arrived, making contact with Mugugia to see when it might arrive. The evidence establishes that she was actively directing Simon to ensure the release of the container. She was not just offering advice about the process. She told him to go and see Pauline on 6 September 2018. He called the accused when the delivery docket had not been issued, and she told Pauline, aggressively, that she had to issue the docket. She was rushing her to issue the docket. She told Simon to bring the docket to her. She endorsed it as the Cargo Officer, authorising the release of the container. When she became aware on 7 September 2018 that Bonny wanted to inspect the container she intervened to stop that from happening. She told her that she knew the importer, that they had been importing for some time, that they were compliant, and they import the “same old things”.
    
83. The accused’s conduct is inconsistent with simply providing advice. She was playing a role, and that role was to ensure that the container was released without inspection. Afterwards she received an additional K3000 from Michael in cash, in a car park, at a mall, at 7 pm at night. K5000 is not “lunch money”. Of that money, it was she who gave K1500 to Simon, which can only be regarded as payment for services provided to her.
    
84. What possible reason could there be for the accused’s conduct other than an agreement with Michael that she would, at a minimum, “omit to ensure” that the container was released without inspection. The evidence excludes any rational inference that she received the monies for simply stamping the delivery order as part of her normal duties (Q&A23) or providing advice to “facilitate” the clearance (Q&A116). She was doing what she could to ensure that the container was released without inspection.
    
85. Whilst not necessary to my finding, the text messages exchanged between Michael and the accused only serve to strengthen my view. They show the extent of the relationship between Michael and the accused, and the extent to which it was the accused who gave instructions to Michael. Whilst she denied arranging the payment of K7835.80 in duty in her record of interview (Q&A45 and 46), the phone records show that it was she who told Michael to go and pay the monies. It was she who told Michael to bring her the receipt and that she would print the Customs’ receipt. It was the accused who on the evening of 7 September gave instructions to Michael, about Simon, and about monies to be paid to “the customs man” after the container was seized. It was she who told Michael that everything was “taken care of”.
    
86. Count 1 was perhaps drafted in a way to reflect that the monies were received both before and after the clearance of the container but it was not necessary other than to plead that the accused received the monies on account of omitting to ensure that the container was inspected.
    
87. Furthermore, it matters not whether the accused received the monies before or after the container was released from the wharf. The critical issue is that she received the monies on account of omitting to ensure the container was inspected.
    
88. “On account of” bears its ordinary meaning. It means “because of” or “by reason of”: The State v Patilias Gamato & Terence Hetinue (2021) N9250.
    
89. Section 87(1) makes it clear that the offence is complete when a person, “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 any thing done or omitted to be done, or to be done or omitted to be done”. The offence lies not in the act done or omitted, or to be done or omitted but in the receipt of monies “on account of” such an act: State v Gamato & Hetinue, supra. As explained by Macrossan CJ in R v Lewis [1994] 1 Qd R 613:
    

“It is not required, of course, that the receiver of the benefit should subsequently fully implement the plot or even perhaps genuinely intend to do so at the time that he receives the benefit but an arrangement or actions having the features described in the subsection must be arrived at or performed”:

90. In that case the Queensland Commissioner of Police was charged with agreeing to receive $1500 each month on account of ensuring that police action would not be taken against intending offenders with a view to their protection from detection and punishment.
    
91. In this case the evidence establishes that the accused did in fact omit to ensure that the container was inspected.
    

In the discharge of the duties of his/her office

92. I am also satisfied beyond reasonable doubt that the accused’s conduct was in the discharge of her office.
93. The accused was employed as a Cargo Officer with PNG Customs, charged with the duty of ensuring that containers were inspected before being released. Receiving money on account of omitting to do so was clearly an act done in the discharge of the duties of her office, albeit that was clearly improper. See Gamato, supra.
    

Corruptly

94. Finally, I am satisfied beyond reasonable doubt that the accused corruptly received the monies.
    
95. I have previously indicated my preference for the view that a power is used corruptly if it is used to obtain some private advantage or for any purpose foreign to the power: per McPherson J in Re Austin (1994) 1 Qd R 255; approved DPP (Cth) v Hogarth (1995) 93 A Crim R 452; or in the discharge of the person’s duty for an improper purpose: see Willers v R (1995) 81 A Crim R 219. In this case the conduct of the accused was clearly for the improper purpose of personal gain and contrary to her duties as a Customs officer.
    
96. I am, however, mindful of the weight of authority in this jurisdiction which favours the view that corruptly means dishonestly: State v Toamara [1989] PNGLR 24; [1988-89] PNGLR 253 Brunton AJ; adopted and applied by Davani J in State v Mataio [2004] PGNC 239; N2531, and Salika DCJ in State v Duncan [2015] PGNC 279; N5010.
    
97. Accordingly, I make it clear that I am satisfied beyond reasonable doubt that the accused acted dishonestly when she received the monies on account of omitting to ensure the inspection of the container. This requires a determination of the state of mind of the accused at that time and is a question of fact to be determined on the facts of the case and according to the ordinary standards of reasonable and honest people: Brian Kindi Lawi v The State [1987] PNGLR 183. A subjective test must be applied such that it must be proven beyond reasonable doubt that the accused in fact knew that he or she was acting dishonestly. However, in applying that test, an objective standard can be taken into account: it might reasonably be inferred that the accused must in fact have known that he or she was acting dishonestly: Wartoto adopting and applying Havila Kavo (supra); see also James Singo v The State (2002) SC700, The State v Gabriel Ramoi [1993] PNGLR 390, The State v Francis Natuwohala Laumadava [1994] PNGLR 291.
    
98. As above, the accused was a Cargo Officer with the Customs Service, and had been for a number of years. It was her responsibility to ensure the collection of duties and taxes payable to the Customs Commissioner and preventing the entry into the country of prohibited or controlled goods. Her receipt of monies on account of ensuring that a container was not inspected in compliance with those purposes was clearly dishonest according to the standards of honest and reasonable people. Furthermore, I have no doubt given her experience that she fully appreciated that she was acting dishonestly or corruptly.
    
99. Having regard to the above, the accused is found guilty of official corruption contrary to s 87(1)(a)(i)(ii) of the Criminal Code.
    

CONSPIRACY TO DEFRAUD

100. To establish the offence of conspiracy to defraud contrary to Section 407(1)(b) of the Criminal Code (Ch. 262) (the Criminal Code) the State must prove that the accused:
     
     • (a) conspired with one or other persons;
     • (b) to defraud the public or any person (whether or not a particular person).
       

To defraud means:

(a) to deprive a person of property which is his or to which he might be entitled, or to put the property of that other person at risk, or to imperil some lawful right, interest, opportunity or advantage of another person;
(b) by using deceit, or fraudulent or dishonest means;
(c) knowing that he has no right to deprive that person of that property or to prejudice those rights or interests:

Roland Tom v The State (2019) SC1833; Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819; Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 adopted and applied; Potape v The State (2015) SC1613 clarified.

101. Conspiracy is an inchoate offence which is established upon the entry into an unlawful agreement, express or implied, which need never be implemented: Roland Tom at [38]; The State v Iori Veraga (2005) N2849 applying R v Aspinall (1876) 2 Qu D 48. It is complete without the doing of any act save the act of agreement: R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 279.
     
102. Conspiracy is a continuing crime. It extends over the period of the agreement until it is achieved or terminated: Roland Tom; Veraga (supra). It remains a single conspiracy no matter who joins or leaves it, as long as there are at least two persons at any one time acting in combination to achieve the same criminal objective: Veraga (supra); R v Masters (1992) 26 NSWLR 450 at 458. Conspirators may join in the conspiracy at various times; any one of them may not know all the other parties, but only that there are other parties; and any one may not know the full extent of the scheme to which he attaches himself; but each alleged conspirator must know that there is in existence a scheme which goes beyond the illegal acts which he agrees to do and must attach himself to that scheme: Veraga (supra).
     
103. In a conspiracy to defraud, the agreement must be one to bring about a result by dishonest means but those means need not necessarily involve deception. Dishonesty of any kind is enough: applying Lord Diplock in Scott (supra):
     

“The intended means by which the purpose is to be achieved must be dishonest. They need not involve fraudulent misrepresentation such as is needed to constitute the civil tort of deceit. Dishonesty of any kind is enough”. See also Peters (supra) at [22], [23], [72] and [85].

104. It is generally accepted that “fraudulent” and “dishonest” may be used interchangeably. See Scott (supra) at 839.
     
105. There is no need to establish the existence of meetings, nor a formal, nor even express agreement: Roland Tom (supra) at [40]. Evidence of acts following the agreement (overt acts) may be, and often is, the only available proof that the agreement was made; but it is the agreement and not the evidence that constitutes the offence: Veraga (supra) applying R v Gudgeon [1995] QCA 506; (1995) 133 ALR 379 at 389.
     
106. Proof of the scope of a conspiracy may also consist in evidence of the separate acts and declarations of the alleged co-conspirators which point to their common or shared objective. When considered in combination, those separate acts and declarations may justify the tribunal of fact finding that there must have been a conspiracy of the kind alleged: Ahern v R [1988] HCA 39; [1988] 165 CLR 87, applying Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1; Tanedo (supra); State v Joseph Wai (2020) N8182.
     
107. The prosecution must prove, however, not only an agreement between the alleged conspirators to carry out an unlawful purpose (or a lawful purpose by unlawful means) but also an intention in the mind of any alleged conspirator to carry out the purpose: Tanedo (supra); R v Thomson (1965) 50 Cr App R 1.
     
108. In a conspiracy to defraud, the agreement must be one to bring about a result by dishonest means but those means need not necessarily involve deception. Dishonesty of any kind is enough: Scott v Metropolitan Police Commissioner [1975] AC819.
     
109. Here the State have alleged that the accused conspired with others to defraud the State through the avoidance of tax and customs duty for the contraband cigarettes.
     
110. Defence counsel submits that tax and customs duty were not payable on the cigarettes because they were contraband. Api disputed that. He is an experienced officer and was very considered when giving evidence. He maintained that goods become contraband when they are not declared or are brought in illegally. Smuggled goods must be seized and in this case because they were cigarettes, must be destroyed but that did not alter the fact that tax and duty was payable on the cigarettes.
     
111. Kim Kure also impressed me with his considered approach. He initially said he was not sure but then said any cigarette is dutiable once it crosses the border. Having said that I accept his evidence that the cigarettes were classified as unfit for consumption and destroyed.
     
112. It does not appear that “contraband” is defined under the Customs Act, and I was not referred to its definition elsewhere. The State should avoid using such terms in indictments. Its ordinary meaning is goods imported illegally: Oxford Online Dictionary, which could refer to both prohibited goods and/or goods that are not declared. For the following reasons it matters not whether the goods were regarded as contraband and destroyed.
     
113. A conspiracy to defraud lies in the agreement to deprive a person of something which is his or to which he is or would be or might be entitled: Scott supra.
     
114. Furthermore, as the Supreme Court said in Roland Tom (supra):
     

“In a conspiracy to defraud the conspirators may never intend, or even foresee, loss or injury to another. The offence consists in agreeing to take the risk of injuring another’s right which the accused know they have no right to take: see Peters at [26], Wai Yu-Tsang v The Queen [1992] 1 AC 269, and Archbold Criminal Pleading, Evidence and Practice, (2015), at 17-63”.

115. Per Toohey and Gaudron JJ in Peters v R [1998] HCA 7 at [25]:
     

“It has always been sufficient that the accused be aware that there is a risk of economic loss^[1]. And even where the victim is a private person, there may be cases of fraud which do not involve an intention to put another person's economic interests at risk in any ordinary sense of that term. To take an example given by King CJ in R v Kastratovic^[2], someone who believes that a person is indebted to him and that a defence which that person is genuinely asserting is without merit, nevertheless has an intention to defraud if he intends by dishonest means to deprive that other person of the opportunity of having the matter adjudicated.”

And McHugh J at [73]:

“Although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. It is sufficient that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk^[3] or depriving another person of a lawful opportunity to obtain or protect property^[4]. It is also well established that a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty^[5].

116. Here the potential loss to the State, or the property put at risk, was the same regardless of whether or not the goods were regarded as fit for consumption. The potential loss was either the duty payable on the particular cigarettes imported, or if not, the duty that would have been payable on an equivalent amount of cigarettes imported to meet the same demand, and which were fit for consumption (if any cigarette might be so described). As above, however, actual loss is not required.
     
117. In this case it was necessary for the State to establish that the accused agreed to defraud the State through the avoidance of payment of tax and customs duty for the cigarettes. As such the State needed to prove that the accused knew that the container contained cigarettes which she believed were or might be subject to tax and customs duty. Secondly that she agreed with Michael and/or others to use dishonest means in order to conceal those cigarettes from the State. Thirdly, that in entering the agreement she intended to prevent the State from collecting the tax and customs duty that was or might be payable, or to put the collection of that tax and duty at risk. See the analysis at [88] of Peters.
     
118. In my view the totality of the evidence excludes any rational inference other than that the accused was aware that the container held cigarettes. This was not a case where the accused was merely turning a blind eye. The accused had an ongoing relationship with Michael. She discussed business with him. From as early as 20 August 2018 the accused was in frequent contact with Michael about the importation of the container. She was actively involved in ensuring that the container was cleared and played a leading role in this regard. From the outset it was the accused who gave directions to Michael and Simon as to what must be done and when. The level to which she was able to dictate what he was to do, and the urgency with which she gave those instructions, are reflected in her text messages, and speak to her knowledge. She took further steps to prevent the container’s inspection once Bonny had indicated she wanted it inspected after it had left the wharf. It is she who orchestrated the payment of monies by Michael, through her to Simon, to “take care of it” once the container was seized. The fact that she received monies for herself, and that she paid others, including Simon and another officer, Veronica, provides further evidence of the extent of her involvement and knowledge. It is also clear from the text messages that she knew of Michael’s associates. In this regard I have considered whether those last texts suggest that she was not aware of the actual contents of the container but I reject that in light of the totality of the other evidence.
     
119. The evidence also establishes beyond reasonable doubt that the accused agreed with Michael to use dishonest means to conceal the cigarettes, that is the accused intended to take advantage of representations or promises which she knew were false, namely the false representations as to the content of the container, or to put it another way, she agreed to conceal facts which she had a duty to disclose, and furthermore, to engage in conduct which she had no right to engage in, namely endorsing the container for release knowing that it contained cigarettes. See Peters at [84].
     
120. Furthermore, the evidence establishes beyond reasonable doubt, that in entering the agreement the accused intended to prevent the State from collecting the tax and customs duty that was or might be payable, or at least to put the collection of that tax and duty at risk. There is no other rational inference in the circumstances. It was not necessary for the State to establish that the accused knew the exact amount of taxes and duties involved and I doubt that she fully appreciated that.
     
121. Given her position as a Customs officer, there can be no doubt and I find beyond reasonable doubt that she knew that she had no right to deprive the State of the tax and duty that was or might be payable.
     
122. I am also satisfied beyond reasonable doubt that the accused’s conduct was dishonest according to the standard of ordinary reasonable and honest people in the community. Furthermore, having regard to the accused’s position and experience, I am satisfied beyond reasonable doubt that she knew that what was intended was dishonest according to those standards.
     
123. Whilst not necessary to my decision, the accused’s conduct once the container was seized is telling. It is well established that intention at the time of any alleged offence is a question of fact to be determined by the trial judge. It may be inferred by examining the accused’s conduct prior to, at the time and subsequent to the act constituting the offence: The State v Raphael Kuandande [1994] PNGLR 512; Ikalom v State (2019) SC1888. In my view her conduct evidenced a consciousness of guilt. In all the circumstances the conduct cannot be explained in any other way: State v Epei (2019) N7845 at [59].
     
124. I therefore find the accused guilty of Count 2 in the indictment.
     
125. For completeness, I note that whilst I raised s 16 of the Criminal Code with counsel prior to submission, it is my view that it does not operate to exclude the recording of a conviction on both counts. The proper test to be applied under s. 16 of the Criminal Code is whether the same wrongful act or omission, which previously resulted in conviction and punishment, was the central theme, the focal point or the basic act or omission of the alternative offence: Thomas v The State [1979] PNGLR 668; [1979] PNGLR 140. I recently applied the provision in The State v Tony Kande & 2 Ors (2021) N9132 at [97] to [109]. It is not uncommon for the prosecution to charge the substantive offence and a related conspiracy in the same indictment, for instance conspiracy to defraud, and misappropriation. Here the acts, whilst very much related, are distinct. One is the agreement to defraud the State of tax and duty that was or might be payable. That agreement extends over time. The other is the receipt of moneys on account of omitting to ensure the inspection of the container. The fact that some of the overt acts which provide evidence of the conspiracy also establish the offence of official corruption does not mean that the acts constituting the offences are the same, albeit that this will be highly relevant on sentence. As above, it is the agreement and not the evidence that constitutes the offence of conspiracy.
     

VERDICT

126. In conclusion the accused is found guilty of official corruption, contrary to s 87(1)(a)(i)(ii) and of conspiracy to defraud, contrary to s 407(1)(b) of the Criminal Code.
     

Verdicts accordingly.

___________________________________________________________
Public Prosecutor: Lawyers for the State
Kombri Lawyers: Lawyers for the Accused

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^[1] See Archbold Criminal Pleading, Evidence and Practice, (1996), vol 2 at 17-92. See also Welham v Director of Public Prosecutions (1960) 44 Cr App R 124 at 131; R v Théroux (1993) 79 CCC (3d) 449 at 459-461 per McLachlin J; Zlatic v The Queen (1993) 79 CCC (3d) 466 at 476 per McLachlin J.
^[2] (1985) 42 SASR 59 at 65.
^[3] [136] R v Sinclair [1968] 1 WLR 1246; [1968] 3 All ER 241; (1968) 52 Cr App R 618; R v Allsop (1976) 64 Cr App R 29; Wai Yu-Tsang v The Queen [1992] 1 AC 269.
^[4] [137] R v Kastratovic (1985) 42 SASR 59 at 65.
^[5] [138] Board of Trade v Owen [1957] AC 602; R v Terry [1984] AC 374; Withers [1975] AC 842 and cf R v Bassey (1931) 22 Cr App R 160.