State v Gamato [2021] PGNC 485; N9250 (2 November 2021)

N9250

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 211, 212 AND 213 OF 2020

CR(FC) 99 OF 2021

THE STATE

V

PATILIAS GAMATO

AND

TERENCE HETINU

Waigani: Berrigan J
2021: 21^st, 26^th July; 13^th, 20^th August; 6^th, 7^th, 8^th, 9^th, 10^th September; 4^th, 8^th October and 2^nd November

CRIMINAL LAW – PRACTICE AND PROCEDURE – OFFICIAL CORRUPTION – Section 87(1)(a)(i)(ii) of the Criminal Code – Elements of Offence - Employed in the Public Service for the purposes of s 83A – Charged by virtue of that employment – Received property or benefits for himself – “On account of” any thing done or omitted to be done – In the discharge of the duties of his office – Corruptly - Offence established against one accused.

Mr Gamato was the Electoral Commissioner of Papua New Guinea and Mr Hetinu the Election Manager for the National Capital District (NCD). Mr Kandiu was a candidate for the NCD Regional Seat. Polling in the National General Election was scheduled to take place in NCD on 27 June 2017. Some officials refused to take up their polling stations that morning due to the non-payment of their camping allowances. Mr Gamato and Mr Hetinu met at Mr Gamato’s house to discuss the issue. Mr Gamato deferred the election to 30 June 2017 on advice from Metropolitan Superintendent Benjamin Turi. Sometime later the same morning Mr Hetinu was apprehended by police, driving away from an angry crowd at the China Town polling station, in possession of K184,300 in cash together with a signed Memorandum of Agreement between Mr Kandiu, Mr Hetinu and Willie Winstand Ipuia, the Coordinator/Electoral Agent for the Moresby North East Electorate, National Capital District. Under the MOA the parties agreed to “do such acts from time to time that shall cause or give effect to” the election of Michal Kandiu to the NCD Regional Seat, in return for which Mr Kandiu agreed to give Mr Hetinu and Mr Ipuia an undisclosed amount of monies to be disbursed amongst themselves, and in promotion of ensuring Mr Kandiu’s election. Mr Hetinu and Mr Ipuia were also to be rewarded with security and waste management contracts, respectively, with the NCD Commission, for a period of five years, following Mr Kandiu’s appointment. During his daily press conference at 3pm Mr Gamato told reporters that he was aware of the cash as some arrangements had been made to try and organise payments for the outstanding camping allowances.

Held:

(1) To establish the offence of official corruption pursuant 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.
  

(2) The evidence established beyond reasonable doubt that Mr Hetinu, whilst being employed in the Public Service as the NCD Election Manager, charged with the responsibility of organising and conducting elections in the National Capital District, corruptly, received monies in the sum of K184,300 for himself on account of paying polling officials to ensure the election of Michael Kandiu to the NCD Regional Seat, in the discharge of the duties of his office.

(3) The evidence failed to establish beyond reasonable doubt that Mr Gamato received any monies for himself on account of paying polling officials to ensure the election of Michael Kandiu to the National Capital District Regional Seat, or that he aided, abetted, counselled or procured Mr Hetinu to do so.

(4) The evidence failed to establish beyond reasonable doubt that the accused conspired with each other to commit official corruption.

Cases Cited:
Papua New Guinea Cases

The State v Gamato and Hetinu (2021) N8937
Maraga v The State (2009) SC968
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173
Kitawal v The State (2007) SC927
Paulus Pawa v. The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
The State v Mollo [1988-89] PNGLR 49
The State v Peter Kirivi [1987] PNGLR 489
State v Toamara [1989] PNGLR 24
State v Mataio (2004) N2531
State v Duncan (2015) N5010
Re Lane, QSC, Ryan J, 9 October 1992, unreported
Brian Kindi Lawi v The State [1987] PNGLR 183
Wartoto v State (2019) SC1834
Havila Kavo v The State (2015) SC1450
Hagena v State (2017) SC1659

Overseas Cases

Browne v Dunn (1893) 6 R 67 HL
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
Shepherd v R [1990] HCA 56; (1990) 170 CLR 573
R v Smith [1993] 1 Qd R 541
R v Herscu (1991) 55 A Crim R 1
Herscu v The Queen (1991) 173 CLR 276
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

References cited

Section 1, 92, 83A(c), s. 87(1)(a)(i)(ii), 120, 515, 529 of the Criminal Code
Section 15 of the Organic Law on National and Local-level Government Elections
Section 126(1) of the Constitution
Section 5 of the Organic Law on National and Local-level Government Elections

Counsel

Mr R Luman with Ms S Mosoro, for the State
Mr J Kolo, for Patilias Gamato
Mr E Nalea, for Terence Hetinu

DECISION ON VERDICT

2^nd November, 2021

1. BERRIGAN J: The State presented a joint indictment against the accused containing two charges, one of official corruption and one of conspiracy to commit official corruption, contrary to ss. 87(1)(a)(i)(ii) and 515 of the Criminal Code (Ch. 262) (Criminal Code), respectively. In particular, that they:

Count 1: ... being employed in the Public Service as the Electoral Commissioner of the Electoral Commission of Papua New Guinea and employed as an Election Manager for the National Capital District charged by virtue to organise and conduct all elections for National Parliament and the legislative and Local-level Governments, corruptly received the cash monies in the sum of One Hundred and Eighty Four Thousand and Three Hundred Kina (K184, 300) from Michael Kandiu for themselves on account of them paying the polling officials to ensure that Michael Kandiu wins the National Capital District Regional seat in the discharge of the duties of their office.

Count 2: ... conspired with each other to receive cash monies in the sum of One Hundred and Eighty Four Thousand and Three Hundred Kina (K184, 300) to be used to pay polling officials to ensure that the candidate Michael Kandiu wins the National Capital District Regional seat to commit a crime of official corruption.

2. The State alleges that on 27 June 2017 it was reported that Terrence Hetinu was handing out cash monies as bribes to polling officials to support Michael Kandiu, one of the NCD Regional Candidates. The residents at China Town in East Boroko, NCD saw the accused driving his vehicle and stoned it and police were alerted. Mr Hetinu tried to escape both the public and police but was apprehended at the East Boroko Traffic light and found to be in possession of a document in the form of a Memorandum of Agreement (MOA) in a small black bag together with K184, 300 cash. Mr Hetinu claimed the monies were given to him by Patilias Gamato, the Electoral Commissioner, for payment of camping allowances for polling officials. Mr Gamato knew of the monies and informed the press of the same. Enquiries revealed, however, that the monies did not come from the Electoral Commission.
   
3. An application for separate trials was refused: The State v Gamato and Hetinu (2021) N8937, and a trial proceeded.
   

TRIAL

4. The State called ten witnesses and tendered a number of documentary exhibits by consent. Further exhibits were admitted through witnesses. Several police officers were called. Senior Constable Timothy Junior and Constable Jeremy Mathias gave evidence as to the apprehension of Mr Hetinu and his conveyance to Boroko Police Station. Assistant Commissioner of Police (on suspension) ACP Kalaut and Detective Senior Constable Smith Morikia, the investigating officer, gave evidence as to what happened when Mr Hetinu was brought to the station, and thereafter. Chief Sergeant Mike Imara was called to give his expert opinion on the purported signature of Mr Hetinu on the MOA. Three officers were called from the Electoral Commission. Aida Samson, Acting Authorising Officer, gave evidence as to the process for the payment of allowances and the availability of funding at the time of the alleged offences. David Wakias, the complainant and a former Election Manager, gave some limited evidence in this regard. Alwyn Jimmy was called to give evidence as to what happened after he was appointed to take over from Mr Hetinu as NCD Manager on 27 June 2017. Ms Gorothy Kenneth, a journalist, gave evidence of statements made by Mr Gamato at a press conference held on the afternoon of Mr Hetinu’s arrest.
   
5. Mr Hetinu gave evidence in his own defence and called Michael Kandiu, who denied any knowledge of the monies or the MOA. Two police officers, Greg Singale and Sergeant Jimmy Maiabe, gave evidence as to what they saw when Mr Hetinu was brought into the car park of the Boroko Police Station. Cincha Dimara, the head of news and current affairs at EMTV, one of the country’s main television stations, produced two exhibits from its archives.
   
6. Mr Gamato gave evidence in his own defence and called Chief Superintendent Benjamin Turi, who was the Metropolitan Superintendent at the time to give evidence as to his advice to defer the election in NCD.
   
7. Whilst both accused deny corruptly receiving the monies, the defence cases are essentially cut-throat, that is Mr Hetinu says that there was no money to pay officials so Mr Gamato called him to his house and gave him cash in the sum of K184,300 for that purpose on the morning of 27 June 2017. Mr Gamato denies any knowledge of the MOA. Whilst he admits meeting with Mr Hetinu that morning he says he told him to go back and find monies within the Commission. He did not give any cash to Mr Hetinu.
   

SUBMISSIONS

8. The State failed to address the elements of either offence. In oral submissions it argued that Mr Hetinu was found in possession of the monies, which were linked to the MOA, which speaks for itself. As for Mr Gamato, there was a meeting between himself and Mr Hetinu that morning, Mr Hetinu gave evidence that Mr Gamato gave him the monies, Mr Gamato said he was aware of the cash in his media conference later the same day, and the MOA refers to an unidentified “Forth party”.
   
9. Mr Nalea and Mr Kolo both focused their arguments on attacking the credibility of the State’s witnesses. These matters are considered below. Limited analysis of the elements of the offences was provided.
   

FINDINGS OF FACT

10. Having considered the evidence of all parties in detail, I make the following findings of fact. In doing so I have 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 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.
    
11. It is not in dispute and I find that the prime function of the Electoral Commission is to organize and conduct all elections for the Parliament and the legislative arms of the Local-level Governments: s 15 of the Organic Law on National and Local-level Government Elections.
    
12. I also find that at the relevant time Patilias Gamato was the Electoral Commissioner of Papua New Guinea. Terence Hetinu was the Election Manager for the National Capital District.
    
13. Furthermore, I find that one day polling for the National General Election in the NCD was scheduled to take place on Tuesday, 27 June 2017.
    
14. The State failed to call the Deputy Commissioner, Corporate, at the time, now the Acting Electoral Commissioner, or the Director of Finance, Human Resources, Operations Division, past or present, or any person to produce financial records on behalf of the Electoral Commission or the Department of Finance as to the financial position of the Electoral Commission, or the release of funding for the elections, at the relevant time. Nor were any bank records produced in this regard. No instructions or guidelines governing the payment of allowances was produced. The rates of allowances payable to electoral officials and temporary electoral workers as determined by the Department of Personnel Management were not produced. No documentation, allowance sheets or bank records were produced as to when, in what amount, or by what manner, allowances were paid to such officials in NCD in 2017.
    
15. The evidence of the investigating officer that search warrants executed on the accounts of the Electoral Commission, Mr Gamato, Mr Hetinu, Michael Kandiu and Willie Winstand Ipuia revealed that the monies did not come from any of those accounts was both vague and hearsay. Conversely, I make it clear that the State produced no evidence to establish that the monies came from any of the said accounts.
    
16. Aida Samson has been with the Commission for 30 years. She is, and was at the relevant time, the Acting Authorising Officer, responsible for running cheques. She admitted under cross-examination that she was convicted of a dishonesty offence involving the misappropriation of State monies in 2011 in connection with her employment. Whilst I regard her evidence with caution in the circumstances, the offence occurred more than 10 years ago, and she continues to hold a position of trust at the Commission, albeit a relatively junior one. More importantly, it is my view that she was not in a position to conclusively know, nor did she assert, that there were no monies in the Commission’s accounts prior to 27 June 2017. Ultimately, the effect of her evidence under cross-examination was that she cannot recall if money was released to the Commission for the National General Election in June 2017 but that on 14 July 2017 “there was big funding that went to mother bank (BPNG) and we put through ATFs (Authority to Transfer Funds) funding for the provinces including NCD, that is the main big activity”. Furthermore, there are two key aspects of her evidence which I do accept. The first, which is not in dispute, is that camping allowances had not been paid to NCD polling officials prior to 27 June 2017. The second, I will return to below.
    
17. David Wakias is the complainant in this matter. He was employed by the Commission as an Election Manager in the highlands region for 15 years and on a casual basis thereafter for 5 years. He was suspended after the elections in 2017 following serious disciplinary charges and terminated from the Commission by Mr Gamato in March 2019. He agreed that he was frustrated by his dismissal and brought proceedings against it, which are currently on appeal to the Supreme Court. He did not register the complaint against Mr Gamato until 19 October 2019, was not in NCD at the time and has no personal knowledge of the alleged offences. I have taken these matters into account when assessing his evidence but his evidence is very limited and is for the most part uncontroversial. I accept his evidence, which does not appear to be in dispute, that funds were released from the Electoral Commission at a slow pace in 2017 and that funds for camping and other allowances had not been released for Southern Highlands Province prior to 27 June 2017. I will return to a further aspect of his evidence below.
    
18. Alwyn Jimmy has been with the Electoral Commission for 45 years. He is attached to the Electoral Boundaries Commission as Project Officer and Election Manager, Industrial Relations. He left the Commission due to his age but was reengaged at some point. He maintained that there was no conflict of interest as a result of his company providing fuel and other services to the Commission as he was not employed by the Commission at the time. The assertion that his company was paid at the time he was employed by the Commission was not made clear. I did not find him to be a defensive witness. He readily agreed that he was not in NCD at the time of the offence and did not know what actually happened. He was wrong about the date initially scheduled for polling in NCD being 24 June 2017 but I accept his evidence, which was not challenged and was confirmed by an instrument of appointment, Exhibit P4, that he was directed by Mr Gamato to replace Mr Hetinu as Election Manager in NCD effective 27 June 2017. I also accept his evidence that monies had not been released for elections in the highlands and more relevantly, that allowances for NCD officials were not paid ahead of polling on 30 June 2017. His evidence that money was released on 14 July 2017 to pay other service providers, whilst consistent with Ms Samson, is largely beside the point.
    
19. Accordingly, it is not possible for me to say conclusively whether or not there were monies available for the payment of allowances as at 27 June 2017. What I do conclusively find, and what is not in dispute, is that no camping or polling allowances had been paid to election officials, or temporary election workers, in NCD on or before 27 June 2017.
    
20. On the evidence of Alwyn Jimmy, I find that there were 370 polling teams comprising 2590 officers in NCD in 2017. It is unclear how many of these were temporary election workers, that is how many were hired on a casual basis to assist with the conduct of the election.
    
21. I also find on the evidence of David Wakias, Alwyn Jimmy, and Aida Samson, which was not challenged and does not appear to be in dispute, that there are basically two types of allowances paid at polling time: camping and polling allowances. The first is usually paid in advance to cover the cost of “camping” the day before polling, like meals and accommodation, if required. The second is paid after polling is complete. Allowances are paid to both election officials and temporary election workers. Rates vary according to the position held and the nature of the allowance, for instance K74 per day for a returning officer, down to K49 for a door keeper or K43 for a driver. It is not clear to me, however, whether the rate of camping allowance also varies per official/worker or not. Mr Wakias, Ms Samson, and Mr Gamato’s evidence suggested that it did. Mr Jimmy said that camping allowances were paid in the form of K500 cash to the team leader. Mr Hetinu said it was K70 per person.
    
22. The State’s evidence could have been clearer as to who is responsible for raising the claims for officials and temporary election workers, whether it is election managers, or team leaders, or perhaps both, but I do find on the evidence of Aida Samson that there is a process for the raising of such claims through the Commission’s electronic Integrated Financial Management System (IFMS). Claims are processed through the Operations Branch supported by documentation including allowances sheets containing the names of officials and temporary election workers, and dates worked. The rates are determined by the Commission’s Human Resources branch according to the Department of Personnel Management’s guidelines. The claims go to the Finance Section for the Deputy Corporate Services to approve as the requisitioning officer, then to the Commissioner for approval under s 32 of the Public Finance Management Act, before going to the Director Finance for approval as the financial delegate, and then to the authorising officer for cheque processing. The physical claim moves from each responsible officer to the next in sync with the electronic process. This evidence is essentially consistent with that provided by Mr Gamato.
    
23. According to Ms Samson the resulting cheque is paid into the Commission’s Kundu account and allowances are paid directly into officials personal bank accounts from there by Human Resources.
    
24. Whilst Mr Wakias and Mr Jimmy said that allowances are meant to be paid to worker’s personal bank accounts, Mr Wakias said that in the highlands not everyone has a bank account and that in such cases the monies are paid from the provincial election account in cash to the returning officer, or the assistant returning officer, to the presiding officers, each of whom are team leaders, to be distributed to the team members individually in envelopes. Upon receipt officials sign the allowance form which is returned as a record of payment for the purpose of acquittal.
    
25. Mr Gamato acknowledged that the Commission employees about 38000 temporary election workers across the country and not all of those casual workers have bank accounts. In such cases monies are drawn to the name of the manager or returning officer and then a cheque is drawn in cash and paid to the temporary election worker and they sign off upon receipt of payment.
    
26. As discussed below, Mr Hetinu also referred to allowance sheets, envelopes and signing off upon receipt.
    
27. In the circumstances the State has failed to establish that the payment of all allowances in NCD was to be directly to officials’ bank accounts.
    
28. It is not in dispute that Mr Gamato deferred polling in NCD to 30 June 2017. It is the State’s case that polling was deferred because of Mr Hetinu’s arrest. The State failed, however, to call evidence to establish when or how the deferral was communicated. No official documentation was produced, and none of the witnesses called by the State, other than potentially ACP Kalaut, were in a position to know why the election was postponed, i.e. was it because officials were disgruntled for not having been paid their allowances and were refusing therefore to take up their posts, or was it postponed because of the arrest of Mr Hetinu. As I understand ACP Kalaut’s evidence, however, he was informed through Metropolitan Superintendent Benjamin Turi after lunch, and after Mr Hetinu’s arrest, that polling would be postponed. It also appears that he understood that postponement was due, at least in part, to disgruntled polling officials but he did not explain the basis for his understanding.
    
29. Mr Hetinu gave evidence that polling was deferred because allowances had not been paid and on the recommendation of Metropolitan Superintendent Turi regarding security issues. His evidence as to how and when he came to be informed of the deferral is inconsistent and confused. He initially said that Mr Gamato instructed him in person when they were together at Mr Gamato’s house at around 10 am. Later his evidence suggested that Mr Gamato called him whilst he was driving back to his office.
    
30. Mr Gamato gave evidence that he received a call at about 9 am on 27 June 2017 from Mr Hetinu to the effect that some disgruntled officials were not taking up their designated posts at polling stations because their meal allowance had not been paid the night before. Mr Gamato told him to come to his house to discuss the matter. Mr Hetinu came between 9 and 930 am. Mr Gamato told him to call Metropolitan Superintendent Turi, which he did. Turi also told him that some policemen were not taking up their posts. He wanted the one day polling to be successful. He asked Turi for his assessment, who recommended deferring polling. Mr Hetinu also considered the situation. Between 930 and 10 am and after speaking to Turi and Hetinu he decided to defer polling in NCD from Tuesday to Friday, 30 June. He says that he told Mr Hetinu that it was his responsibility as Election Manager to find money within the system and process the allowances. “With the deferral go back and see if you can process the claims”.
    
31. Mr Gamato called Chief Superintendent Ben Turi as a witness. He has been involved in the last four elections and at the relevant time was the Metropolitan Superintendent in charge of police operations for the election in the city. He gave evidence that he was in Port Moresby on 27 June 2017 observing and getting reports from field commanders and police members already on duty at allocated polling booths as per the operating order, and checking whether Electoral Commission officers were present as planned. Election officials were not at the polling stations on time. He received a call from Terence Hetinu and spoke to him and Mr Gamato at the same time and recommended that if officials do not arrive by 10 am polling should be called off. He later learned that polling had been deferred via announcement over the police radio. He said he spoke to Mr Gamato and Mr Hetinu once, between 7 and 8 am.
    
32. As above, I found that camping allowances had not been paid prior to 27 June 2017. I also accept the evidence of Alwyn Jimmy that, following his appointment as NCD Manager, he brought the returning officers together for the purpose of ensuring that they went ahead with the election on 30 June 2017, even without their allowances, telling them not to hold the election “to ransom”.
    
33. In the circumstances I find that polling was deferred by Mr Gamato on the morning of 27 June 2017 because officials failed to take up their posts because of the non-payment of allowances.
    
34. I further find that sometime later that morning, Mr Hetinu was apprehended by Senior Constable Timothy Junior, Constable Jeremy Mathias and Aquila Kolokolo at the Bisini traffic lights as he drove away from an angry crowd at the China Town polling station. It is not in dispute that at the time of his apprehension he was found to be in possession of K184,300 in cash.
    
35. I find for the following reasons that at the time he was apprehended, Mr Hetinu was in possession of a Memorandum of Agreement between Michael Kandiu, Terence Hetinu and Willie Winstand Ipuia and that the MOA was purportedly signed by all parties.
    
36. Firstly, the MOA was found in his possession, in the side pocket of what Mr Hetinu admits, in his record of interview and in oral testimony, is his black back pack, on the floor of the passenger side of his vehicle.
    
37. In this regard I found Senior Constable Timothy Junior and Constable Jeremy Mathias, of 15 and 7 years’ standing, respectively, to be witnesses of truth. They are both mistaken about polling continuing the same afternoon, but that does not alter my finding that they are both credible and reliable as to the circumstances in which Mr Hetinu was apprehended and taken to the police station. Their evidence was generally consistent with one another’s, and with the State’s evidence as a whole, but not so similar as to suggest that it had been fabricated. The fact that there are discrepancies between them about the time of the apprehension (after lunch and between 10 and 11 am, respectively), the size of the black bag that was found in Mr Hetinu’s vehicle, or the position of the police vehicle in relation to Mr Hetinu’s at the lights when he was apprehended, are understandable given the lapse of time, the circumstances in which the events took place, and the role that each played.
    
38. In particular, I find that at some stage during the morning of 27 June 2017 Timothy Junior, Jeremy Mathias and Aquila Kokololo responded to a radio report to the effect that the Election Manager and his staff were being attacked at China Town. They drove quicky to the scene with Junior at the wheel arriving within a few minutes. They found a crowd surrounding a government plated vehicle containing Mr Hetinu. Members of the crowd reported that the Election Manager for NCD was distributing monies to officials and/or voters, and the crowd reacted. Mr Hetinu drove away fast, the crowd followed, shouting and throwing stones. The police gave chase and caught up with Mr Hetinu at the Bisini lights. Mathias, who was armed with a rifle, ran to Mr Hetinu’s vehicle and dispersed the crowd trying to attack Mr Hetinu and the vehicle. Aquila was doing the same on the left hand side of Mr Hetinu’s vehicle. When he saw that the area was clear Mathias pulled Mr Hetinu out and rushed him into the back seat of the police vehicle and closed the door, protecting him from the crowd. He rushed back and found two bags on the floor of the passenger side, a shopping bag containing a lunch pack and a black back pack. He grabbed them and rushed back to the police vehicle. They radioed to say that they had Terence Hetinu and were bringing him to Boroko Police Station. An officer from another vehicle, which had arrived at the scene was tasked to drive Mr Hetinu’s vehicle to the station. Inside the backpack Mathias saw bundles of K100 notes tied with rubber bands. He found the MOA in the side pocket of the back pack. Mathias flicked through the MOA and Junior saw that it was signed on the last page. Junior said that when they asked Mr Hetinu why he was carrying such a large amount of cash, he told them that the monies were to pay election workers who needed their allowances. Mathias said that he said that he was distributing food and allowances to his polling officers. They drove to the back car park of Boroko Police Station where they handed Terence Hetinu and the back pack over to ACP Kalaut.
    
39. The fact that a signed MOA was found in Mr Hetinu’s possession at the time of his apprehension is also supported by SC Smith Morikia who met Junior and Mathias when they arrived at the police station. On his evidence I find that the back pack was immediately taken up to the NCD Commander’s office, that it was placed on the table and that it was SC Morikia who opened the bag and found K184,300 inside in bundles of K100 and K50 notes, and that the monies were counted and photographed. This is confirmed by Sergeant Vincent Tapunga, of 28 years standing with the National Forensic Science Centre, who was present at the time the money was counted and whose handwriting appears on the note in the photographs showing the figure K184,300, Exhibit P9 (1-4).
    
40. Here I observe that some time was spent in cross-examination of ACP Kalaut and SC Morikia about what happened to the monies after they were seized. Neither counsel has been able to explain the import of this. Mr Hetinu has never disputed that he was in possession of the monies. He wrote to police on 28 September 2017, Exhibit P5, seeking to have them returned, and he admitted in his record of interview and in oral testimony that he was in possession of the monies. For his part, Mr Gamato simply denies that it was he who gave the monies to Mr Hetinu, and the thrust of Mr Kolo’s submission is that the police did not fingerprint the monies to connect them to his client.
    
41. There is overwhelming evidence, including the photographic evidence of the monies seized that day. Furthermore, I accept the evidence of ACP Kalaut and SC Morikia that all but K46,500 of the monies were burnt in a fire started by the ACP’s administrative assistant, Agnes Jimu. I accept the evidence of ACP Kalaut that following his suspension he no longer has access to the K46,500 recovered from Agnes Jimu’s house. Here I note that I raised with all counsel prior to the commencement of the trial whether there was any issue with me hearing this case as I was the trial judge in the cases against Agnes Jimu and her husband, Charles Andrew Epei, and counsel indicated that they had no objection.
    
42. Any unarticulated submission that the MOA was contrived so that police could steal the monies is rejected for the reasons set out below.
    
43. Inside the backpack SC Morikia also found the MOA, Exhibit P8, appearing to contain the signatures of Terence Hetinu, Michael Kandiu and Willie Winstand Ipuia. The cash was given to ACP Kalaut for safekeeping in the NCD Commander’s safe, and SC Morikia took the MOA and Terence Hetinu to the Fraud Squad and started a record of interview.
    
44. I am satisfied that the chain of custody of the MOA has been established despite the fact that neither Mathias nor Junior were asked to formally identify Exhibit P8. There was clear evidence that the MOA was found in the custody of Mr Hetinu at the time of his apprehension, that it was taken into the custody of Mathias and maintained by him until it was handed over to ACP Kalaut at Boroko Police Station in the presence of SC Morikia, and then handed to SC Morikia by ACP Kalaut and kept by him.
    
45. ACP Kalaut is the only officer to suggest that it may not have been signed but ultimately the effect of his evidence was that he could not recall. I note here that in TH3, discussed below, there appears to be footage of ACP Kalaut referring to an MOA signed by Mr Hetinu. Regardless of that, I find that ACP Kalaut was honest but mistaken when he said that to his recollection the MOA was not signed. 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.
    
46. Thirdly, Mr Hetinu admitted in his record of interview, which was conducted the same day, and tendered by consent, Exhibit P1, English original, that: police confiscated K184, 300.00 in cash and the MOA found in his small black bag during a search of his vehicle following his apprehension; that he was aware of the MOA; that it was sent to him in an envelope, left on his table, when he was out of the office; and that he opened it and saw it. He denied that it contained his signature but said that his signature is always in the public domain because of the work he does. Whilst he saw “the content” of the MOA, he did not read through the MOA or take time to understand “the context of it”. In response to the question: “If you do not know the context of the MOA, then why did you carry it around in your bag with the cash money of K184, 300.00?”, he said: “I had documents with me with sensitivity and I was trying to find out how my name and signature was in place. The money does not relate to MOA. Money was given by the PNG Electoral Commissioner to pay polling teams.” See Exhibit P1, Q&A 24 to 33.
    
47. The record of interview was suspended. When it resumed on 1 May 2019, almost two years later, Mr Hetinu confirmed that he admitted that “the envelope containing Memorandum Of Agreement (MOA) has been on your table which you opened and saw the content but not went through the context.” P1, Q&A 50.
    
48. The record of interview was tendered by consent. It was not suggested that it was involuntary, and the investigating officer was not challenged to the effect that any part of it had been fabricated or inaccurately recorded. There is no evidence before me to suggest that it is not an accurate record of what was said.
    
49. Accordingly, I find that the MOA was found in the possession of Mr Hetinu at the time of his apprehension and that it appeared to be signed by all parties, including Mr Hetinu.
    
50. As is apparent on its face, Mr Hetinu is one of two beneficiaries named in the MOA.
    
51. The other is Willie Winstand Ipuia, described as the Coordinator/Electoral Agent for the Moresby North East Electorate, National Capital District.
    
52. It is not in dispute and I find that Mr Kandiu was a candidate for the NCD Regional Seat.
    
53. The MOA provides (verbatim, except where indicated in square brackets) emphasis mine:
    

MEMORANDUM OF AGREEMENT BETWEEN MICHAEL KANDIU AND TERENCE HETINU AND WILLIE WINSTAND IPUIA BETWEEN Michael Kandiu, a business man of Section............ Allotment .............. Street, Boroko, National Capital District on the First Part (hereinafter referred to as the “First Party”) AND Terrence Hetinu of PO Box 587, Boroko, National Capital District on the Second Part (hereafter referred as the “Second Party”) AND Willie Winstand Ipuia, of Section 306 Allotment 03 Tarumana Street Gerehu Stage-4 National Capital District on the Fourth Part (hereinafter referred to as the “Third Party”) The First, Second, and the Third parties are also hereinafter collectively referred to as “the Parties”. WHEREAS The First Party is a candidate for the Governor’s Seat in the National Capital District during the 2017 National General Elections. The Second Party is Election Manger for the National Capital District Electorate during the 2017 National General Elections. The Third Party is a Coordinator/Electoral Agent for the Moresby North East Electorate, National Capital District during the 2017 National General Elections. RECITALS The First Party is vying for the Governorship for National Capital District after the June 2017 National General Elections hence contesting the seat and seek from the Second and the Third and certain favours that will enhance him winning the NCD Governors seat. The First, Second, the Third parties are willing to commit or do such acts from time to time that shall cause or give effect to the First Party win the 2017 Elections for the National Capital District Governors Seat but understand that their lives including their jobs will be put to risk and seek the First Party to comply with certain conditions set forth by them which stipulations or provisions are set forth in clauses V & VI below in this MOA. AND WHEREAS The parties agree that the current administrative machinery of the National Capital District Commission, (NCDC) has failed to deliver marginalizing the city population into destitute in contrasts to PNG and NCDC’s imposing economy in the region. [...omitted] AND WHERE OF The parties agree that the Political Head of NCD must be replaced by the First Party whose duty will be to eradicate, ramify and bring equitable remedy to the increasingly imbalance in service delivery and wealth distribution to the civil society in the absence profound Visionary Policy initiatives by successive governments. [...omitted] WHEREAS The First Party is desirous of certain acts and deeds to be performed by the Second, Third and the Fourth Parties in connection with the 2017 National General Elections hence the parties herein mentioned collectively and severally agree on its behalf to do and execute the Objects. The Parties each of them collectively and severally agree to negotiate, facilitate and execute for and on behalf and in the name of the First Party such deeds and agreement and like instruments and/or persuasions as from time to time convenient or necessary with its agents, employed servants, or any other party in relation to the attainment of the Object. The First Party will collectively and individually, for the duration of the 2017 National General Elections ratify and confirm that whatever the Second, and the Third Parties does, or cause to be done, pursuant to powers conferred under this Memorandum of Agreement and will indemnify and keep them indemnified against all claims, demands, costs, damages losses and expenses however arising consequent upon the execution of the Object. In consideration or pursuant to item Number III first above mentioned the First Party will make at the disposal of the parties in surety the amount of K............................ to disburse amongst themselves and their families and further to be disbursed in the name and promotion of the Object. REWARDS (a) The Second Party: Upon successful attainment of the Object within reasonable time after the 2017 National General Elections the Second Party pursuant to provision and stipulations contained thereof the Second Party shall be awarded all Security Contracts which exist with National Capital District Commission under its existing Impact Security Services Firm for a duration of Five (5) years subject to renewal. (b) The Third Party: Upon successful attainment of the Object within reasonable time after the 2017 National General Elections pursuant to provision and stipulations contained thereof the Forth Party shall be awarded all Waste Management within the National Capital District including identification and maintenance and/or rehabilitation of civil and building construction infrastructure within NCD for a duration of Five (5) years subject to renewal. IN WITNESS WHEREOF this Memorandum of Agreement has been executed by the date and year first herein before written. THE SPICEMEN SIGNATURE of ) Michael Kandiu was hereunto ) Affixed in the presence of ) __________________________________________ Specimen Signature of Michael Kandiu THE SPICEMEN SIGNATURE of ) Was hereunto Terrence Hetinu ) Affixed in the presence of ) __________________________________________ Specimen Signature Terrence Hetinu THE SPICEMEN SIGNATURE of ) Willie Winstand Ipuia was hereunto ) Affixed in the presence of ) __________________________________________ Specimen Signature Willie Winstand Ipuia ___________________ Witness

54. Signatures appear in ink or biro in the place of each party, and the witness, whose name, “Maipya Sambe” is crossed and replaced with “Julie Kamuri”.
    
55. I also accept the evidence of Chief Sergeant Mike Imara that in his expert opinion the signature of Terence Hetinu on the MOA is by the same person who made the sample signatures of Terence Hetinu provided to him by SC Morikia for comparison purposes.
    
56. The evidence of SC Morikia establishes that the sample signatures are those of Mr Hetinu. SC Morikia obtained official documentation, including acquittals, an identification card, and copies of Mr Hetinu’s driving licence, containing Mr Hetinu’s signature, from the records of the Electoral Commission, Exhibit P11, under search warrant, Exhibit P3.
    
57. CS Imara has served with the RPNGC for 44 years, 40 of which have been attached to the National Police Forensic Science, Document Examination Section. He has extensive training and experience in handwriting examination. In 2017 he was approached by SC Morikia to conduct handwriting analysis on the disputed signature of Terence Hetinu. He was given the MOA, Exhibit P8. CS Imara asked him to provide sample signatures belonging to Terence Hetinu so that he could compare them with the disputed signature in Exhibit P8. He was provided with documentation, Exhibit P11. He examined the disputed signature and compared it with the sample signatures and concluded that the signature in the MOA was by the maker of the sample signatures. As part of that process he used a microscope and other equipment to conduct a close examination.
    
58. Under cross-examination he said that there are some minute details that cannot be seen with the naked eye and so he uses a microscope and magnifying glasses to examine a signature closely. I reject entirely the submission by counsel that the witness agreed he was rushed or that he was distracted by other things “at the same moment” he conducted the examination. He did no such thing. The effect of his evidence was that the examination was not only the matter he was working on at the time. That is hardly unusual. When it was suggested to him that his examination of the signature on the MOA was rushed, he made it very clear he conducted a proper examination, and that he takes his work very seriously.
    
59. In response to my questions, CS Imara said that the machine microscope gives him a clear view of the formation of any signature, where it starts and how it finishes, whether it contains any hesitation. He also looks for any details to show that overwriting has been done, that is when a person who is trying to make a copy of a signature traces over it to leave a pen line indentation on the document below which can be written over. CS Imara explained that in cases of copying there will be pen hesitations, and differences between the question and sample signatures, that will lead him to determine that the signature has been forged or copied but in this case there were no such signs that it was a copy. He was adamant that it was not a copy, “it matched the original signatures. It was straightforward”.
    
60. Having heard and observed Mr Hetinu I am unable to accept him as a witness of truth. His evidence was at times inconsistent and other times implausible.
    
61. It follows from my findings above that I reject Mr Hetinu’s oral testimony that the first time he realised that the document was in his possession was when police pulled it out of his bag. I also reject his evidence that it’s possible that the MOA was amongst documents that he picked up from his table before leaving his office that morning. His description of the documents that he required for work purposes was vague and unconvincing.
    
62. I reject his evidence that once at the station: ACP Kalaut asked him why he was deferring polling at three polling stations and that he explained that it was on Turi’s advice; that ACP Kalaut contacted Turi to verify that and then confirmed that Mr Hetinu was free to go; that it was only then that Mr Hetinu realised that the money was in his vehicle, that the police had only brought him to ACP Kalaut, that the police had seen the money, and would steal it; that he told ACP Kalaut and other senior officers that he had money in the vehicle intended for paying polling officials; that some police officers said that there was no money; that he insisted that there was and could not leave until it was disbursed for the purpose intended; that ACP Kalaut then ordered the officers who impounded his vehicle to check and see if that was correct; that they came back with nothing; he then threatened to file a complaint; and that it was only then that the money was brought in, and that another officer then gave an order to the officers who apprehended him, and that after forty minutes they then returned with the bag and money, and that is when they produced the money and MOA. None of that was put to any of the prosecution witnesses in accordance with the rule in Browne v Dunn (1893) 6 R 67 HL.
    
63. Essentially the rule in Browne v Dunn requires that a party put his case to the witnesses called against him, or any matters that he intends to rely on to contradict them, in cross-examination so that in fairness the witness can comment and choose to either maintain or retract their evidence: see John Jaminan v The State No 2 [1983] PNGLR 318. The principles regarding the rule are set out Kitawal v The State (2007) SC927. It is clear that the requirements of the rule vary according to the circumstances of the case, and the principal aim is to ensure fairness. It does not necessarily follow that failure to comply with the rule results in the conclusion that the evidence is recent invention, unreliable and should be rejected: Kitawal. The Supreme Court also said in that case that the requirements of the rule will be lessened if in fact prior notice of the defences of or the accused’s version of events has been given to the State in some other form, e.g. a record of interview. Nevertheless, the failure is a matter to be considered in assessing the weight of the evidence. As the High Court in Australia emphasised in MWJ v R [2005] HCA 74; 2005 222 ALR 436 the rule must be applied in criminal proceedings with regard to the unavoidable burden of proof carried by the prosecution in a criminal trial.
    
64. There is nothing before me to suggest that the State would have been aware of Mr Hetinu’s claims that he was initially released by ACP Kalaut and that it was only after he demanded the return of the cash that police produced the MOA. In my assessment the claims are recent inventions and unreliable. Moreover, they are implausible.
    
65. The evidence of Greg Singale and Sergeant Jimmy Maiabe does not assist Mr Hetinu. Sergeant Maiabe simply says that he saw Mr Hetinu brought in and taken straight into the Central Commander’s office. He says that at the time Mr Hetinu did not have anything in his hand but his evidence does not exclude the evidence of the other officers, which I accept, that they were in possession of the bag, which was handed over. He did not see anything else. Singale is the only officer to say that he saw Mr Hetinu punched to the head before he was taken into the office. His evidence is inconsistent with the evidence of the other officers. I reject the evidence that Mr Hetinu was assaulted at the police station.
    
66. I also reject as fanciful Mr Hetinu’s evidence that all Election Managers are entitled to cash advances of “K500,000, K600,000 or K700,000” to “offset any costs that arise”, and may acquit later, or that it is normal practice for such large amounts of money to be carried around at election time, particularly by an Election Manager, travelling on his own, without security.
    
67. I find his evidence that it was agreed with Mr Gamato that they would “borrow cash” from somewhere and then pay it back once the money “comes in” implausible. His evidence as to whom he would repay the monies is very unclear. On one hand Mr Hetinu suggests the monies were to be repaid to the Commission. In evidence he said that he would repay the monies to Patilias Gamato as if Mr Gamato had provided K184,300 in cash as a personal loan, or from an external source. Certainly, if the money was coming from the Commission’s accounts there would be no need for the Commissioner to personally hand it over to him, and where and how would the Commissioner get hold of that cash from the Commission’s accounts in such a short amount of time, at that time of the morning, and without going through the formal processes? And why would the Commissioner hand it over to him at his house, and without any formal record? Whilst it would have been far simpler for the State to produce documentary evidence to exclude the possibility that the monies came from the Commission’s accounts, the State’s evidence excludes that possibility. Furthermore, the suggestion, that Mr Gamato gave him the cash as a personal loan, or from some unidentified external source, to be repaid by the Commission at some point in the future is on its face implausible.
    
68. To be clear I make these findings quite apart from anything Mr Gamato said in evidence.
    
69. I also reject his evidence that he was on his way to the office to “do the normal packeting, put it in envelopes and they sign for it”, when Met Sup Turi called Gamato again and told him to defer the election, and then Gamato called him and told him to call off polling and inform all returning officers of all 12 wards in NCD to recall the polling teams and return to Boroko NCD office, and that he then stopped at Korobosea polling station, got out and told the presiding officers of six teams that polling had been deferred, and then drove to Boroko Market, and told them not to complete the set up, and then went to China Town, parked, disembarked, and walked to the polling booth and advised polling officers that polling was deferred, all with K183,400 left unattended in vehicle. It is implausible.
    

PRINCIPLES GOVERNING A CIRCUMSTANTIAL CASE

70. The State’s case against each of 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 ... ”.

71. 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.
    
72. 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]^[1]. 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].
    
73. 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."

74. 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.
    

THE OFFENCE OF OFFICIAL CORRUPTION

75. Section 87(1) 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

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,

is guilty of a crime.

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

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

76. 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.
      

OFFICIAL CORRUPTION – TERENCE HETINU

77. It will be clear from the above that having heard and observed Mr Hetinu I found his evidence to be implausible and lacking truth and credibility. I make it clear, however, that the accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial. The question remains whether the State has established its case against him beyond reasonable doubt.
    
78. Let me start by saying this. There was no need for the State to proceed with the indictment as particularised. The accused Terence Hetinu could on the facts established before me be convicted beyond any reasonable doubt on the basis that he, whilst employed in the Public Service as Election Manager charged with the responsibility of organising and conducting elections in the National Capital District, corruptly, agreed to receive monies, and benefits in the form of contracts, for himself on account of attempting to ensure the election of Michael Kandiu to the National Capital District Regional Seat, in the discharge of the duties of his office.
    
79. On that basis it matters not whether he actually received any cash or property, or whether he did so on account of paying polling officials. The critical facts are that he agreed to receive benefits, namely monies and contracts on account of attempting to ensure the election of Michael Kandiu. It is all there in black and white in the MOA to which he is a named party and signatory. Nothing more is needed.
    
80. I make it clear, however, that I am not suggesting that there must be a formal agreement before such a charge might be established. “Agrees” bears it ordinary meaning of “concur”, “consent to”, “approve”: Oxford Online Dictionary. In other words the accused must willingly and knowingly agree to receive or obtain a benefit on account of a thing done or omitted to be done in the discharge of the duties of his/her office. I think that is abundantly clear on the terms of s 87 itself but if there is any doubt, I adopt the findings of the Court of Criminal Appeal in R v McFarlane [1993] 1 Qd R 202 at 204. Whilst concerning an offence of official corruption relating to offences under the equivalent of s 120 of our Code, the principles are equally applicable to s 87, as recognised in R v Smith [1993] 1 Qd R 541 at 558.
    
81. It is also worth observing here that the word “benefit” in the phrase “property or benefit of any kind” should be given its natural meaning, and that it is not limited to a proprietorial benefit of any kind: see Smith (supra), where the benefits were sexual favours.
    
82. I am, however, satisfied beyond reasonable doubt that the State has established the charge as particularised in Count 1. Essentially, the evidence establishes that pursuant to the agreement Mr Hetinu received cash in the sum of K184,300. At least some of that was received for himself. And some of it was received on account of him paying polling officials to ensure that Michael Kandiu was the successful candidate. I will address each of the elements in turn.
    

Employed in the Public Service

83. There is no dispute and I find beyond reasonable doubt that Terence Hetinu was employed in the Public Service. For future reference the State should produce contracts of employment or appointments of office in such cases, but there is conclusive evidence, including Mr Hetinu’s own admissions, that he was employed by the Electoral Commission as the Election Manager for the National Capital District at the relevant time. S 83A(c) of the Criminal Code provides that a “person employed in the Public Service” includes a person employed by a constitutional institution. The Electoral Commission is a constitutional institution created by s 126(1) of the Constitution and provided for under s 5 of the Organic Law on National and Local-level Government Elections. Accordingly, a person employed by the Electoral Commission is a person employed in the Public Service for the purpose of s 92 of the Criminal Code: Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112.
    

Charged by virtue of that employment with organising and conducting elections

84. Again, it is not in dispute and I am satisfied beyond reasonable doubt that Mr Hetinu was charged by virtue of that employment with the duty of organising and conducting elections for National Parliament. He admitted that in evidence.
    

Received, property, for himself

85. I am further satisfied beyond reasonable doubt that Mr Hetinu “received”, “property”, “for himself”.
    
86. In particular, I am satisfied beyond reasonable doubt that he received cash in the sum of K184,300. “Property” includes every thing, animate or inanimate, capable of being the subject of ownership: s 1 of the Criminal Code, and clearly includes cash.
    
87. I am furthermore satisfied beyond reasonable doubt that the K184,300 was received pursuant to the MOA, to which Mr Hetinu was a signatory, and that at least part of those monies were received for himself. The evidence excludes any other rational inference.
    
88. Summarising my findings above, the evidence establishes that Mr Gamato was the Electoral Commissioner and Mr Hetinu the NCD Election Manager. Mr Kandiu was a candidate for the NCD Regional Seat.
    
89. Allowances for election officials and temporary election workers are processed through the Commission’s IFMS and the various officers responsible before funding is released. Claims for allowances are submitted through the Operations Branch, supported by an allowance sheet which specifies the name of the worker, the dates worked, the type and rate of allowance, the latter calculated by Human Resources according to the rate determined by DPM.
    
90. As a general rule allowances are to be paid directly into the personal bank accounts of officials and temporary workers from the Commission’s Kundu account. Where workers do not have a personal bank account, funds are paid into the provincial or NCD election account and then either cash or a cheque payable in cash is drawn in favour of the worker, distributed by the returning or assistant returning officer, to the presiding officer, the respective team leader for distribution. The worker signs the allowance form acknowledging receipt.
    
91. 27 June 2017 was the day scheduled for polling in NCD. Funds for the conduct of the 2017 National General Election were released at a slow pace and camping allowances had not been paid to NCD officials and temporary election workers on or before that day as they should have been. Some election workers refused to take up their positions that morning as a result. Mr Hetinu met with Mr Gamato at his house. Mr Hetinu called Met Sup Benjamin Turi who recommended that polling be called off if officials did not take up their positions by 10 am. Mr Gamato decided to defer the election to Friday, 30 June 2017.
    
92. Some time later that morning Mr Hetinu was apprehended driving away from an angry crowd at the China Town polling station. At the time he was in possession of K184,300 in cash, bundled in K100 and K50 notes, inside a black back pack he admitted was his.
    
93. Inside the same bag was an MOA between Terence Hetinu, Michael Kandiu and Willie Winstand Ipuia. Mr Hetinu was one of two beneficiaries named under the MOA.
    
94. Under the MOA the parties agreed to “do such acts from time to time that shall cause or give effect to” the election of Michal Kandiu to NCD Governor’s Seat, in return for which Mr Kandiu agreed to make available to Mr Hetinu and Mr Ipuia an undisclosed amount of monies to be disbursed amongst themselves and their families, and for the purpose of achieving Mr Kandiu’s election. In addition, in the event of Mr Kandiu’s election, Mr Hetinu was to be awarded all security contracts with the NCD Commission for a period of five years.
    
95. According to expert opinion the signature of Mr Hetinu on the MOA was by the same person who made Mr Hetinu’s signature on official documentation obtained under warrant from the Electoral Commission.
    
96. For the avoidance of doubt, and whether or not it is strictly necessary to find as an indispensable “intermediate fact”, I am satisfied beyond reasonable doubt in all the circumstances that the signature on the MOA belongs to Mr Hetinu: Shepherd (supra).
    
97. Having regard to all of the above matters, the State’s evidence excludes any rational possibility that the monies were received by Mr Hetinu from Mr Gamato, either from the Commission’s accounts or from a personal or external source, for the purpose of paying polling officials’ outstanding allowances.
    
98. As above, the evidence about the rates of camping allowances was not clear. No party addressed the issue but on my calculations the amount of allowances payable to the 370 teams in Port Moresby on the basis of Mr Jimmy’s evidence, is similar to the amount of monies found in Mr Hetinu’s possession. I find this to be coincidental when considered in the totality of the evidence. In addition, Mr Hetinu’s evidence was that he had monies for both camping and meals with him, at a rate of K70 per person in each case, for which the monies are insufficient. Moreover, on his evidence, he did not know how much money was given to him, or how much money he needed to meet the allowances for that matter. Furthermore, his evidence was not that cash of K500 would be paid to the team, rather that only casual workers who did not have bank accounts would receive cash.
    
99. Having regard to all of the above circumstances, the evidence excludes any other rational inference than that Mr Hetinu received K184,300 pursuant to the MOA.
    
100. The indictment as drafted is rather circular, that is, it alleges that the monies were received for the accused themselves ... on account of them paying polling officials.
     
101. The MOA makes clear at Part VI, however, that:
     

“In consideration or pursuant to item Number III first above mentioned the First Party will make at the disposal of the parties in surety the amount of K............. to disburse amongst themselves and their families and further to be disbursed in the name and promotion of the object”.

102. It follows that the monies were received in part for Mr Hetinu himself, and in part to be disbursed in promotion of the objects of the agreement, namely ensuring Mr Kandiu’s election.
     
103. The fact that not all of the monies were received by Mr Hetinu for himself is of no consequence to the establishment of this element. 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. Section 529 also says that it is not necessary in the indictment to set out any particulars or matter which need not be proved.
     
104. In my view, having regard to the elements of s 87(1)(a)(i), it is arguably not strictly necessary to particularise the person from whom the property or benefit is derived. Putting that aside, I am satisfied beyond reasonable doubt that the accused received the monies from Michael Kandiu. That is established by the MOA itself to which Mr Hetinu was a signatory.
     
105. Mr Kandiu gave evidence for Mr Hetinu. I make it clear that he is not on trial here.
     
106. I accept SC Morikia’s evidence that he was directed to pursue Mr Hetinu’s investigation first. Decisions regarding the prioritisation of investigations having regard to the available evidence, the whereabouts of suspects, and limited resources are ultimately matters for police, but in general terms police should avoid conducting piecemeal investigations and running “test” cases before the courts. This has the potential to interfere in the efficient administration of justice, as well as undermine confidence in the criminal justice system.
     
107. Normally, a witness claims privilege against self-incrimination whilst giving evidence. It is then necessary for the court to determine whether there is a reasonable ground to apprehend a real and appreciable danger to the witness and not an imaginary or insubstantial one. The court must be satisfied that such a danger exists from all the circumstances of the case and the nature of the evidence which the witnesses is called to give. Great latitude should be allowed in determining whether any particular question may lead to further investigation or risk of prosecution. In this case given the charges on indictment and the alleged involvement of the intended witness I gave the warning to the witness once he was sworn and prior to the taking of any evidence. I warned him of his right to object to answering any question that may tend to prove that he had committed an offence, or may put him at risk of prosecution. Furthermore, I made it clear that if he decided to answer the question the evidence which he gave may be used against him in any future prosecution.
     
108. Mr Kandiu denied signing the MOA, or giving any cash to Mr Hetinu or Mr Gamato. His evidence that he heard from others on the afternoon of 27 June 2017 that the MOA was circulating on social media, unsigned, is hearsay, and in my view was designed to support Mr Hetinu’s evidence that the MOA was not signed at the time he was apprehended. The evidence establishing that the MOA was signed at the time Mr Hetinu was apprehended is overwhelming for the reasons outlined above.
     
109. Mr Kandiu’s testimony that it was well known that the incumbent governor was at the police station at the time and gave the money to Mr Gamato is hearsay, was not put to the State witnesses, and is inconsistent with the evidence, including the admissions of the accused, that the monies were found on Mr Hetinu that day.
     
110. I also reject Mr Kandiu’s evidence that his relative, Samson Ipara, at CID Boroko, contacted him because the investigating officer, Morikia, wanted to have lunch with him to discuss the case, or that Morikia texted him to say he had to attend the station to be charged “for the same charges” as Hetinu and Gamato, or that he wrote to Morikia on 17 September 2020, copied to the Police Commissioner and others, Exhibit TH1, denying the charge and calling on him to complete his investigation diligently by obtaining his signature from MVIL, the Immigration Department and his bank. None of this was put to SC Morikia in cross-examination by Mr Hetinu’s lawyer, and none of it alters my findings on the evidence established in this trial that Mr Hetinu did receive the monies from Mr Kandiu pursuant to the MOA.
     
111. Here I note that defence counsel made reference to The State v Mollo [1988-89] PNGLR 49. His argument is not clear. It appears to be that there was insufficient evidence to establish that the monies were received from Mr Kandiu. I have found otherwise beyond reasonable doubt. I do wish to clarify what Mollo stands for.
     
112. Mollo stands for the proposition that proof is required of the corrupt use of the particular office held for gain. In that case a public servant, a member of the Defence Force, was charged with corruptly receiving monies in connection with his duties as Chairman of the PNG Defence Force Savings and Loans Society under s 87(1)(a), and his co-accused was charged with corruptly giving said monies under s 87(1)(b). Kidu CJ, applying his earlier decision The State v Peter Kirivi [1987] PNGLR 489, acquitted both on the basis that the duties as Chairman were not those of a public servant but rather those of an official of a private corporation and thus the receipt of the monies was not in connection with the corrupt use of any office held in the Public Service. It was in that context that the Chief Justice held that the charges must necessarily fail against both accused.
     
113. The case does not stand for the proposition that the giver and the receiver must be charged together, although it will often be in the interests of justice, and its efficient administration, that they are.
     
114. As explained by McKenzie J in R v Herscu (1991) 55 A Crim R 1:
     

“Whilst the two offences in s 87 are reflections of one another, it is not necessary that an offence be committed by both persons before one can be convicted.... In the case of an offence under s 87(1) it is the fact that the office-holder asks for or agrees or attempts to receive property or a benefit that is critical. If he does that and the other elements are established it is immaterial that the person in respect of whom the request or attempt is made does not respond positively in any way to the approach, or that although the other person may give the appearance of agreeing, he had no intention other than to expose the criminal conduct of the office-holder in so doing, or that he simply intended to appropriate the gift or benefit and not fulfill his part of the “bargain”.

115. This is apparent from the language of s 87(1) itself. To give a simple example, if a policeman pulls over a driver and demands K100 to allow the driver to pass without a ticket, and the driver refuses, the policemen would still be guilty of official corruption.
     
116. In any event, the State has established beyond reasonable doubt in this case that the monies were received by Mr Hetinu for himself from Michael Kandiu.
     

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

117. I am further satisfied beyond reasonable doubt that Mr Hetinu received the monies on account of “paying the polling officials to ensure that Michael Kandiu” won the National Capital District Regional Seat.
     
118. “On account of” bears its ordinary meaning. It means “because of”, “by reason of”, or “in recognition of”: Smith (supra).
     
119. It was not necessary for the State to plead that Mr Hetinu received the monies on account of “paying the polling officials to ensure that Mr Kandiu” won the NCD Regional Seat.
     
120. The clear motive of Mr Hetinu on the face of the MOA was to receive the monies on account of attempting to ensure that Mr Kandiu won the election.
     
121. In my view the charge would stand in the event that the State was unable to establish that Mr Hetinu received the monies on account of “paying the polling officials”. That particular is not an element of the offence. Whether or not any particular is an essential one is a question to be determined in the circumstances of a particular case. In this case there would be no prejudice to the accused. Mr Hetinu denies absolutely ever entering the agreement, or receiving any monies in relation to it, regardless of whether or not they were received for paying polling officials, i.e. his defence would be no different.
     
122. I am, nevertheless, satisfied beyond reasonable doubt that the monies, or at least some of them, were received by Mr Hetinu on account of him paying polling officials to ensure that Michael Kandiu won the NCD Regional seat. This is the only rational inference when all of the circumstances are taken together. The agreement itself states that the parties are willing to do acts that “shall cause or give effect to” Michael Kandiu winning the election, and that they agree to “negotiate, facilitate and execute for and on behalf and in the name of the First Party such deeds and agreements and like instruments and/or persuasions from time to time convenient with its agents, employed servants, or any other party in relation to the attainment of the object”. The agreement recognises it puts the parties’ lives and jobs at risk. The only rational inference from this is that some of the monies were to be used to pay polling officials to ensure the outcome of the election. How else could the object be achieved? Some monies could have gone to voters directly but that would have been very risky and not likely to guarantee an outcome. The only way of ensuring the election of the candidate was to ensure a majority of ballots in favour of Mr Kandiu, and the only way to ensure that was by interfering with the ballots themselves, or with the counting of them, and the only way to ensure either of those matters was to pay polling officials for that purpose.
     
123. The admissions of the accused are also relevant. He has maintained on a number of separate occasions, at the time of his apprehension, in his record of interview, in a letter to police, and again in oral testimony, that the monies were for the payment of polling officials. I accept that the monies were for the payment of polling officials but they were not monies intended to meet official entitlements but to ensure the election of Michael Kandiu.
     
124. It is not necessary for the State to establish that Mr Hetinu had already paid the polling officials for that purpose.
     
125. Whilst the statements of police officers as to what they heard over the radio and what the crowd told them after they arrived at China Town were admissible for the non-hearsay purpose of establishing that those statements were in fact made, so as to explain the actions of the police officers who responded, they are not admissible to establish the truth of the statements themselves. For similar reasons whilst TH2, the EMTV online report, is admissible for the purpose of establishing that such a report was published on 27 June 2017 by EMTV, without evidence from those who saw and heard what actually happened, the content of the report is hearsay.
     
126. The effect of the evidence from Senior Constable Timothy Junior and Constable Jeremy Mathias is that Mr Hetinu admitted that he was distributing monies at the time of his apprehension.
     
127. Regardless of that, s 87(1) makes it clear that the offence is complete when a person asks, receives, obtains or agrees or attempts to receive or obtain, on account of any thing “done or omitted to be done, or to be done or omitted to be done by him”. 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: Herscu v The Queen (1991) 173 CLR 276 at [13].
     
128. 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”.

129. 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.
     
130. Here the monies were received on account of the accused paying polling officials whether or not Mr Hetinu had the opportunity to do so before his apprehension.
     

In the discharge of the duties of his office

131. I am also satisfied beyond reasonable doubt that the conduct of Mr Hetinu was “in the discharge of his duties of office”. For obvious reasons, the offence is not confined to the performance of authorised duties. As the High Court of Australia explained in Herscu at [11]:
     

“The section is concerned with the violation or attempted violation of official duty rather than with the actual performance of official duty. Official corruption necessarily involves impropriety and it is not to be supposed that s.87 is limited to those cases where the act or omission in question would, apart from the corrupt influence, be proper.”

132. In that case the appellant paid monies to the Minister for Local Government and Main Roads in Queensland on account of him attempting to ensure that the Brisbane City Council, whose activities the Minister supervised, approved changes proposed by the appellant’s development company. At [14] it said:
     

“The Council was the creature of the legislation which the Minister was charged with administering. He had general responsibility for business connected with local government matters and was responsible for the Local Government Department. Those responsibilities imposed upon the Minister the function of supervising generally the activities of local government authorities and conferred upon him a wide discretion in the performance of that function. It is a proper use of language also to describe that function as a duty. It was, we think, within the scope of that duty for the Minister, in his capacity as Minister, to seek to influence an individual authority in reaching a decision upon a local government matter and, in particular, to persuade an authority to review a planning decision. Such a discretion was a necessary accompaniment of the more drastic powers which the Minister had under the relevant legislation in relation to local authorities. In the exercise of his duty the Minister was under an obligation to act honestly and it was for the purpose of ensuring that a public official should so act, and not sacrifice duty for gain, that the offences found in s.87 were created.”

133. Here the accused was the Election Manager for the NCD charged with the duty of organising and conducting elections. In the exercise of that duty, including the supervision of polling officials, he was under an obligation to act honestly to ensure a free and fair election. Receiving money on account of paying polling officials to ensure the election of one candidate was an act done in the discharge of the duties of his office, albeit that was clearly improper.
     

Corruptly

134. Finally, I am satisfied beyond reasonable doubt that Mr Hetinu corruptly received the monies. “Corruptly” is not defined in the Code and its meaning has been the subject of much judicial debate. In State v Toamara [1989] PNGLR 24; [1988-89] PNGLR 253 Brunton AJ considered the authorities and said:

“There is one line of English cases which says that corruptly means dishonestly: R v Lindley [1957] Crim LR 321 and R v Calland [1967] Crim LR 236.

There is another line of English cases which says that corruptly does not mean dishonestly but in purposely doing an act which the law forbids...: Cooper v Slade [1858] EngR 546; (1858) 6 H L C 746 at 773 per Willes J; R v Smith [1960] 1 All ER 256 at 259 G, per Lord Parker CJ; and R v Wellburn, Nurdin and Randel (1979) 69 Cr App R 254.

The ordinary meaning of the adverb corruptly is wider than dishonestly. Dishonesty may certainly be an ingredient of corruption, but the concept is wider. Corruption can be achieved by pollution, subversion, or the undermining of a concept, institution, or material. When the word corruptly is used with persons, as in s 120(1) A person who... corruptly... receives then the ordinary use of the word implies immorality, depravity and dishonesty. When the word is linked with the taking of bribes, corruptly is closer to dishonesty as a concept than it is to immorality or depravity, which are more associated with other forms of social deviancy such as sexual indiscretion (although the taking of bribes is certainly immoral).

The rule in R v Smith that corruptly means purposely doing an act which the law forbids has a circularity about it: corruptly means doing something which is corrupt. A circular definition is a non-definition. It merely conceals the real basis on which a decision is made, and allows a court to construct a syllogism on an undisclosed premise: see J Stone, III. Category of Concealed Circular Reference, Precedent and Law (Butterworths, Sydney, 1985), at 65-67, and also J Stone, par 9. The Legal Category of Concealed Circular Reference, Legal System and Lawyers Reasonings (Maitland, Sydney, 1968), at 258-263. As a matter of principle, I prefer the line of cases ending with R v Calland [1967] Crim LR 236, and I hold that the State in this case must prove an element of dishonesty. Dishonestly is a somewhat firmer concept than corruptly, although it, too, is an undefined adverb, and can lead itself to circularity.”

135. The weight of National Court authority is with this approach. It was followed by Davani J in State v Mataio [2004] PGNC 239; N2531, and Salika DCJ in State v Duncan [2015] PGNC 279; N5010.
     
136. In Australia, the weight of authority is with the view that “corruption is not to be equated with dishonesty and dishonesty does not necessarily connote corruption”: Re Lane, QSC, Ryan J, 9 October 1992, unreported. “A power was used corruptly if it was 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. Both of these decisions were approved in DPP (Cth) v Hogarth (1995) 93 A Crim R 452. I prefer this approach, and the definition of the word “corruptly” as 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 Mr Hetinu was clearly for the improper purpose of personal gain and contrary to his duties as election manager.
     

Having regard to the weight of authority, however, I make it clear that I am satisfied beyond reasonable doubt that Mr Hetinu acted dishonestly when he received the monies on account of paying them to polling officials to ensure the election of Mr Kandiu. 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 v State (2019) SC1834 adopting and applying Havila Kavo Havila Kavo v The State (2015) SC1450; 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, The State v Andrew Ludwig Posai (2004) N2618, The State v Graham Yotchi Wyborn (2005) N2847, The State v Francis Potape (2014) N5773).

137. Mr Hetinu was the Election Manager responsible for NCD. He had been an employee of the Commission for 12 years. It was his responsibility to ensure that the elections were conducted freely and fairly for the purpose of ensuring that the official elected reflected the will of the people as enshrined in the Constitution. His receipt of monies on account of interfering with that process for the purpose of ensuring the election of Mr Kandiu was clearly dishonest according to the standards of honest and reasonable people. Furthermore, I have no doubt given his education and experience that he fully appreciated that he was acting dishonestly or corruptly.
     
138. Having regard to the above, Mr Hetinu is found guilty of official corruption contrary to s 87(1)(a)(i)(ii) of the Criminal Code.
     

OFFICIAL CORRUPTION – PATILIAS GAMATO

139. There is no dispute that Mr Gamato was employed in the Public Service, and charged by virtue of that employment with organising and conducting elections.
     
140. The State submits that the Court should convict on the basis that Mr Gamato admits that there was a meeting between himself and Mr Hetinu on 27 June 2017, Mr Hetinu gave evidence that Mr Gamato gave him the monies at that meeting, Mr Gamato said he was aware of the cash in his media conference conducted later the same day, and the MOA refers to an unidentified “Forth party”.
     
141. Whilst I do find that there was a meeting between Mr Hetinu and Mr Gamato, in the absence of other corroborating evidence, limited weight can be given to Mr Hetinu’s evidence as to what transpired at the meeting given my findings as to his credibility, particularly given that he is an accomplice and I must regard his evidence with some caution: Hagena v State (2017) SC1659.
     
142. Furthermore, Mr Gamato is not named in the agreement and on its face receives no benefit under it.
     
143. The State’s submission that the reference to the “forth party” in the MOA is a reference to Mr Gamato is untenable on any fair reading of the document.
     
144. The MOA is detailed in its naming and identification of the parties to it. The names of the three parties between whom the agreement is made, are clearly set out on the cover page. Their names, addresses and positions are set out in detail under Clause I and II, respectively. The recitals under Clause III refer to the First, Second and Third parties, and they are identified as “the parties”. The signature page clearly sets out, twice, the names of the parties. Even the name of the person who witnessed the agreement in included in biro on the last page of the document. The reference to an unnamed fourth party appears only under Clause VI but in both places it appears to be a typographical error, i.e. the reference to a fourth party in the first line of Clause VI is inconsistent with that which immediately follows which refers only to the First, Second and Third parties. The second reference to the “forth party” falls under the “Rewards” for “The Third Party”, and is clearly intended to refer to the Third Party, who it must be remembered is defined elsewhere as Willie Winstand Ipuia, and undertakes to perform certain things, in return for promised rewards, which are set out in Clause VI.
     
145. It is not in dispute that Mr Gamato gave a televised press conference at 3 pm at the Electoral Commission as he did every day during the election period. On their own, newspaper reports of what Mr Gamato said at the press conference are hearsay. Despite the fact that the conference was broadcast on television, and despite the fact that more than one journalist attended, the State did not produce footage of the conference and called only one witness, Ms Dorothy Kenneth, who identified her articles which were published in the Post Courier on 28 June 2017.
     
146. Ms Kenneth is a highly experienced journalist. I reject the submission that Ms Kenneth was lying about what happened at the press conference. She did not lie, she simply said that she asked one question and the next was asked by another journalist. It is the questions and Mr Gamato’s answers that are critical, not who asked the question.
     
147. The State failed, however, to establish that the newspaper reports accurately reflected what Mr Gamato actually said. It is well understood that what is reported in the press does not always accurately reflect what was said. It was necessary for the State to lead clear evidence from Ms Kenneth as to why she was able to say that the reports accurately reflected the words spoken by Mr Gamato. Her evidence did not establish that she had a clear recollection of the precise words used, or the effect of the words used, and that is not surprising given the lapse of time. In the circumstances she should have been asked to explain the process she went through to write the report. Did she take contemporaneous notes at the conference? Is she able to produce them? Did her article go through an editorial process and what does that involve?
     
148. Ms Kenneth’s evidence was that she asked Mr Gamato if he could confirm that there was an amount of cash found with his officer Mr Hetinu. He said “yes”. Another organisation then asked what the funding was for and he said that it was funding for his officials. She identified two articles she wrote that were published the following day: Exhibit P12 “Gamato defends electoral officers” and Exhibit P 13 “80 m to run elections”. When asked why she said Mr Gamato defended electoral officers she said that she had no role in the headline. She was asked again what Mr Gamato said in response to her question and she said that he confirmed that there was an incident involving the NCD manager and, in her own words: “that the monies were outstanding for officials, just that, there was a problem with NCD election, it is due for outstanding for officials”.
     
149. Mr Gamato gave detailed evidence as to the process and the roles and responsibilities for the processing of claims at the Commission. Whilst Mr Gamato agreed that officials had not been paid that morning he did not agree that there was no money in the Electoral Commission accounts. It was election time, there was money in the accounts. That would appear to be borne out by Mr Jimmy’s evidence to the effect that officials were paid their allowances within a few days of polling, which took place on 30 June 2017, even if monies for service providers did not come until later.
     
150. As above, Mr Gamato admitted that Mr Hetinu came to his house that morning. Mr Gamato said that he told Mr Hetinu that it was his responsibility as the Election Manager to find money within the system and process the claims for officials, and that with the deferral he was to go back and see if he could process the claims. He did not give him any money. He agreed that carrying a large amount of cash on polling day was suspicious. He did not recall any incidents of borrowing money from an outside source in an emergency. The Commission cannot borrow money from outside.
     
151. Mr Gamato said that he became aware of Mr Hetinu’s arrest when Mr Hetinu called him from the police station. By that time he was already in the office. Mr Hetinu told him he had been apprehended by police with some money in his bag. Mr Hetinu told him that police had apprehended him because he was going around informing polling officials of the deferral. At about 1pm Deputy Commissioner of Police, Jim Wan, ACP Kalaut, and Ben Turi came to his office to discuss Mr Hetinu’s issue. He said it was a police matter and he would appreciate if proper investigations could be done, although he asked for any arrest to be held until after the elections, as he wanted the elections to go well and it was not just Mr Hetinu who had been arrested that day, there were other officials arrested as well.
     
152. At the daily press conference at 3pm Dorothy Kenneth asked him whether he was aware of the incident involving the manager for NCD who police apprehended with a big sum of money in his bag. He said that yes he was aware of that incident but it was a police matter and he should not make any further statement while investigations were carried out. He did not say that he gave the money to Terence Hetinu. He said that yes he was aware of the incident, he said that because Terence Hetinu had called him from Boroko Police Station and told him that police had apprehended him and found money in his bag which he told him was for camping allowances. Mr Gamato also said that they would organise through the system and get the meal allowances paid before 30 June. He had to make that statement because as the head of the organisation he had to bring confidence to the polling officials so that they would take up their polling places on 30 June. He gave no further statement regarding the money and the arrest.
     
153. Following the close of Mr Gamato’s case, Mr Hetinu was permitted to produce the television report that went to air on EMTV on the evening of 27 June 2017, through Ms Dimara, the Head of News at the time: Exhibit TH3. She retrieved the television report from the station’s archives. The report is more than two and a half minutes long and most of it is hearsay.
     
154. It does, however, contain a short piece of footage of what appears to be Mr Gamato speaking at a press conference. Mr Hetinu submits that it supports his case that he was given the money from Mr Gamato to sort out the camping allowances. The submission is misconceived. For the reasons outlined above, I have already found that the evidence established beyond reasonable doubt that the monies were received pursuant to the MOA, and not for the purpose of paying camping allowances. A finding that Mr Gamato gave the monies to Mr Hetinu would not exonerate Mr Hetinu, rather it would implicate Mr Gamato.
     
155. Mr Gamato indicated earlier in the trial that he intended to produce footage of the conference himself, and the State agreed then that it had no objection, but ultimately Mr Gamato did not produce any footage, and he was under no obligation to do so. Neither he nor the State objected to the footage at the time it was tendered through Ms Dimara. Mr Kolo submits it is consistent with his client’s case. It is unclear what the State’s position is. In its written submissions it asks me to give the footage little weight. In oral submissions it relied on it to establish its case.
     
156. Unlike an article or report of what another person said, an audio visual recording of a person speaking may be accepted as evidence of that fact, provided it can be established that the footage is authentic. If the maker was not available then better evidence as to the system in place for the taking, logging, keeping and retrieving of the footage should have been led from Ms Dimara by defence counsel for that purpose. It is also clear that the footage does not capture the entirety of the press conference, and further that the forty second footage has been cut to fit within a two minute news report, which is entitled “Electoral Officers Caught”. I take those matters into account.
     
157. Having said that there is nothing about the footage of the statements made by Mr Gamato to suggest that it is not a continuous piece of footage. It is not possible to hear the question or questions being asked, only Mr Gamato’s answer(s):
     

“I said it’s a matter belonging to police and police are investigating so, I cannot make any statement in the press conference... that was the allegation I received in the morning. In the morning basically because he was carrying some cash with him to try and sort out the payments for the camping allowances and so police searched his vehicle and picked up him with a big sum of money but I’m aware of that, he made some arrangement to try and organize payments for camping allowances, so he was carrying that cash and police picked him up and searched, they also came and questioned me and I said yes, I’m aware of the cash he was carrying.”

158. Firstly, neither the evidence of Ms Kenneth nor the footage establishes that Mr Gamato said that he gave the cash to Mr Hetinu. Mr Gamato said he was aware of the cash.
     
159. Furthermore, the words said by Mr Gamato are not inconsistent with his evidence that he told Mr Hetinu to go and find money within the system that morning, which seems to me to be an obvious thing for an Electoral Commissioner to have done in the circumstances, and that Mr Hetinu had called him from the station sometime later to say he had been arrested with cash in his possession, which Mr Hetinu admitted in oral testimony.
     
160. This is particularly so given that the State’s evidence as to the time that Mr Hetinu was apprehended is unclear, i.e. the State has not excluded the possibility that it was plausible for Mr Gamato to accept that Mr Hetinu had sufficient time to organise the monies after he left his house and before he was apprehended, or called Mr Gamato from the station for that matter. DC Junior said it was after lunch. Constable Mathias said it was between 10 and 11 am. SC Morikia said it was between 9 am and 10 am. ACP Kalaut did not say. The evidence as to when Mr Gamato and Mr Hetinu met is also unclear. Mr Gamato says it was between 930 and 10 am. Mr Hetinu says it was between 10 and 11 am. Ben Turi’s evidence is that he spoke to Mr Gamato and Mr Hetinu between 7 and 8 am.
     
161. As to what else, if anything, was said about deferral to 30 June, or the payment of allowances by 30 June, by Mr Gamato during the press conference it is not possible to say.
     
162. Is it strange that Mr Gamato said that he was aware of the monies, and that the monies were intended for allowances, in all the circumstances and when he knew that police were investigating the matter? On one view, perhaps. Arguably, however, it would be even stranger for him to announce that to all the world if he was aware that the funds had been received pursuant to the MOA. In any event, the State must establish its case beyond reasonable doubt.
     
163. In conclusion, there is no credible evidence Mr Gamato gave the monies to Mr Hetinu. Mr Hetinu’s evidence is of limited weight and lacks corroboration. The statements made by Mr Gamato during the press conference, either on their own or when taken with the totality of the other evidence, do not establish beyond reasonable doubt that Mr Gamato received any monies from Michael Kandiu on account of paying polling officials to ensure that the latter won the election. Mr Gamato is not named in the MOA, is not a signatory to it, and does not receive any benefit under it. The State has failed to establish beyond reasonable doubt that Mr Gamato aided, abetted, counselled or procured Mr Hetinu to receive the monies for that purpose or at all.
     
164. In this regard, whilst it is not necessary to my decision, I formed the impression from Mr Kandiu during his evidence that he regards Mr Gamato with some enmity.
     
165. In all the circumstances, Patilias Gamato is found not guilty of Count 1 in the indictment.
     

CONSPIRACY TO COMMIT OFFICIAL CORRUPTION

166. It follows from my finding that the State has failed to establish the charge of conspiracy to commit official corruption against either accused. The conspiracy alleged in Count 2 is only between Mr Gamato and Mr Hetinu. The State could have alleged a conspiracy between Mr Gamato, Mr Hetinu and others, but it did not. Accordingly, the count necessarily fails against Mr Hetinu as well as Mr Gamato. Each are acquitted of conspiracy to commit official corruption.
     

VERDICT

167. Terence Hetinu is found guilty of official corruption, contrary to s87(1)(a)(i)(ii) of the Criminal Code.
     
168. Patilias Gamato is acquitted of official corruption, contrary to s87(1)(a)(i)(ii) of the Criminal Code.
     
169. Patilias Gamato and Terence Hetinu are both acquitted of the offence of conspiracy to commit a crime, contrary to s 515 of the Criminal Code.
     

Verdicts accordingly.
___________________________________________________________
Public Prosecutor: Lawyers for the State
Kombri Lawyers: Lawyers for the Accused

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^[1] 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.