State v Japele [2022] PGNC 98; N9552 (4 March 2022)

N9552

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(FC) 38 OF 2020

BETWEEN:
THE STATE

AND:
STANLEY JAPELE

Waigani: Salika CJ
2021: 30^th November, 3^rd & 30^th December
2022: 4^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Official Corruption Charge – Section 87 (1) (a) of the Criminal Code – What is Official? – What is Corruption? – Whether accused’s actions amount to Official Corruption – What are the general duties of a police officer? – Constitution Section 197 – What are the powers and functions of policemen and women? - Common Law powers and functions of police officers – Implications of silence of an accused.

Cases Cited:

Madang Provincial Government and Others v John Simon and Others (November 2015) SC1473
Paulus Pawa v The State [1991] PNGLR 498
RE Taru and Contempt Proceedings [1982] PNGLR 292
The State v Gabriel Ramoi [1993] PNGLR 390
The State v Kirivi [1987] PNGLR 489
The State v Toamara [1988-89] PNGLR 253
The State v Waesa Mollo [1988] PNGLR 49

Counsel:

Ms S Mosoro, for the State
Mr F Kirriwom, for the Accused

4^th March, 2022

1. SALIKA, CJ: INTRODUCTION: The accused is charged that he between the 20 May 2018 and 30 May 2018 here in Port Moresby in the National Capital District, being employed in the Public Service as a policeman holding the rank of a Sergeant within the Royal Papua New Guinea Constabulary and charged by virtue of such employment with the duty of a police officer, corruptly asked and received from one Onne Bani, K50,000.00 cash for himself on account of him releasing one Aaron Cui, a detainee from Police Cells, in the discharge of his duties as a Police Officer.
   
2. The charge is laid under Section 87(1)(a) of the Criminal Code Act.
   

ALLEGATIONS

3. The following allegations were put to the accused on arraignment:
   
   1. That on or about 21 May 2018, Aaron Cui was detained by the Police. His friend, the complainant, Onne Bani was called to assist Aaron Cui find a way to have Aaron Cui out on bail.
      
   2. The complainant sought assistance from one Paul Bari, a police officer, who told him that another police officer, the accused, Stanley Japele, would assist him facilitate bail for Aaron Cui.
      
   3. On the next day, the complainant met the accused where the accused told him that since Aaron Cui is charged with 7 offences, he will be charged K10,000 per charge each. It is alleged that the accused further said that he will negotiate for a lesser amount of K5,000 per charge and that would total K35,000 for the 7 charges. The accused added that he would need an additional K15,000 to pay the bosses for their services to allow Aaron Cui out on bail.
      
   4. Based on the accused request, the complainant gave the accused cash in the sum of K50,000. Aaron Cui was never released on bail by the police.
      
   5. The State says that when the accused asked for K35,000 and another K15,000 respectively, he corruptly asked and received the monies in the discharge of his duty as a police officer and member of the Public Service, thereby contravening Section 87(1)(a)(i) & (ii) of the Criminal Code Act.
      
4. The State invoked Section 7 of the Criminal Code Act in pursuing the charge.
   

THE EVIDENCE

5. The State’s evidence to substantiate the charge consisted of a letter from Constable Paul Bari to Assistant Commissioner of Police, Yamasombi, dated 29 May 2018, and a statement by Stanley Japele dated 15 June 2018. Those documents were tendered into evidence without objections.
   
6. The State called four witnesses who gave sworn oral evidence in relation to the charge. They were:
   

(i) Onne Bani

His evidence was that:

(a) On or about the 13^th of May 2018, he was informed by his friend Aaron Cui that police personnel from Gordons Police Station raided his place of work and confiscated several items, including his computers which had important documents.
(b) He was asked to find ways to assist his friend, Aaron Cui, to retrieve his confiscated properties.
(c) Onne Bani called an associate of his, one Jonathan Oata, who got him in touch with one Moses Gene, who was the go-between to the OIC Minor Crimes at Gordons police station.
(d) Onne Bani was advised that the OIC Minor Crimes had asked for the sum of K250,000 in exchange for the release of Mr Cui’s properties confiscated from Aaron Cui. However, Mr Bani informed them that he was only able to put up K100,000 which they subsequently agreed.
(e) On the 20^th of May 2018, Mr Bani met with Jonathan Oata and Moses Gene, and they proceeded to the Morata suburb, the location of the residence of the OIC Minor Crimes, Gordons Police Station, Inspector Terry Apolos.
(f) There, they met Inspector Terry Apolos, and Jonathan Oata passed to Inspector Terry Apolos cash monies totalling K100,000 wrapped in a plastic bag in Mr Bani’s presence. Inspector Terry received the money and informed them that he would communicate with them through Moses Gene.
(g) The K100,000 cash monies delivered to Inspector Apolos was to facilitate the return of the confiscated items belonging to Aaron Cui.
(h) On the 21^st of May 2018, Aaron Cui was arrested and detained at the Boroko Police Station.
(i) The witness met with Aaron Cui at Boroko Police Station cells, whereupon Aaron Cui asked him to find a way to have him released on bail from custody.
(j) The witness contacted Paul Bari, who informed him that he would contact his friend, Stanley Japele.
(k) The next day the witness met with Paul Bari and the accused, and he informed them of the K100,000 payment made to OIC Minor Crimes Gordons Police Station, Inspector Terry Apolos.
(l) They all then drove to Boroko Police Station where they picked up the charge details pertaining to Aaron Cui’s arrest and detention.
(m) This witness alleged, the accused informed him that the bail amount would be K10,000 per charge. As there were a total of seven (7) separate charges, the total bail amount would stand at K70,000; however, they were prepared to negotiate down to K5,000 per charge, if he was prepared to put up a further K15,000 to facilitate police bail. He agreed.
(n) Mr Bani then contacted Michael Xu and informed him to arrange K50,000, which he did, and the money was allegedly paid to the accused and Paul Bari at Bagita Police Barracks inside the accused’s car by Mr Bani.
(o) The K50,000 was allegedly paid to the accused for the accused to facilitate the release of Aaron Cui on police bail, however, this did not eventuate and Aaron Cui was later released on National Court bail of K1,500.
(p) Sometime on the 28^th of May 2018, Mr Bani was arrested by police and charged for Bribery. His case was later withdrawn at the Committal Court.

(ii) Jonathan Oata

This witness’s evidence is that:-

(a) On the 20^th of May 2018, he was contacted by Onne Bani to provide escort to Inspector Terry Apolos’ house located at Morata.
(b) At Inspector Apolos’ house, Inspector Apolos got into the vehicle whereupon Onne Bani produced a plastic bag containing what appeared to be bundles of money which Onne Bani personally handed over to Inspector Terry Apolos inside the vehicle.
(c) After Inspector Terry Apolos exited the vehicle, they departed from the premises.
(d) On the 21^st of May 2018, he again received a call from a distressed Onne Bani requesting they meet along the street leading towards the Book Makers opposite the Boroko drain. The time was approximately between 9pm and 11pm.
(e) There, Onne Bani informed him that police were assisting him and he introduced one Paul Bari to him. Onne Bani advised this witness that Paul Bari and a friend of his namely Stanley Japele would be assisting him.
(f) Onne Bani also informed him that the costs of bail would be about K50,000 which he may give the next day, if there was a way.
(g) Thereafter, the witness departed as he was of the view that his presence there was not required.

(iii) Terry Apolos

This witness was the OIC of Minor Crimes located at the Gordons Police Barracks. His evidence was that:

(a) Sometime on or about the 20^th of May 2018, he received a call from one Moses Gene informing him that he would be coming to see him at his home.
(b) Sometime later, Moses Gene arrived at his house with Onne Bani and Jonathan Oata, and during a brief conference inside their vehicle, they passed him K100,000 wrapped in newspaper.
(c) He recalled that the K100,000 was intended to have him drop the charge(s) or investigation into Aaron Cui for a Cyber Crime offence and money laundering offences.
(d) He was taken by surprise when Moses Gene advised him that he should drop the charges or investigation.
(e) Soon thereafter, he contacted the Executive Officer to the Commissioner for Police and informed him of what had transpired.
(f) At around the same time, his section had lost a police firearm and they were busy trying to retrieve or locate that missing firearm hence, he did not initiate any criminal charges against Onne Bani.
(g) On the 28^th of May 2018, he directed his officers to apprehend Onne Bani and they used Moses Gene to lure him.
(h) Upon his apprehension, he was charged with bribery and in the course of interrogation, he revealed that he had paid a sum of K50,000 to one Paul Bari and Stanley Japele.
(i) Paul Bari was apprehended thereafter at Vision City Shopping Mall, and upon questioning, denied any knowledge of the allegation of receiving K50,000 from Onne Bani.
(j) A search of Paul Bari’s house was conducted and cash monies totalling K6,000 was found, however, a similar search was not conducted at Stanley Japele’s residence.
(k) The bribery case against Onne Bani was withdrawn at the Committal stages by the police so as to use Onne Bani as a witness against the accused, Stanley Japele. No charges were laid against Moses Gene and the witness was not sure as to the case against Paul Bari.
(l) The witness acknowledged during questions from the Court and from related questions from counsel that, ordinarily the Metropolitan Superintendent would be the appropriate bail authority at Boroko Police Station; or otherwise, the Police Station Commander or any commissioned officer stationed there for that matter.

(iv) Michael Xu

This witness’ evidence is that on 21 May 2018, his friend Aaron Cui was detained by police at the Boroko Police Station cells. He went to the Boroko Police Station where he met Onne Bani. Mr Bani told him that he had arranged for a K50,000 bail for Aaron Cui to be released on bail. Michael Xu said he left the Police Station to find the K50,000 to bail his friend Aaron Cui out.

On 22 May 2018, Mr Xu went to the Kennedy Estate where he gave K50,000 cash to Mr Bani to use as bail for Aaron Cui. Michael Xu loaned from a Chinese friend the K50,000 to help his friend.

7. That was the end of the State’s evidence.

DEFENCE CASE

8. The accused elected to remain silent. He did not give evidence. Counsel for the Defence however tendered into evidence a Statement under Section 96 of the District Court Act. The accused therefore relies on that statement in his defence.
   

THE LAW

9. Section 87(1)(a)(i) & (ii) reads:

“(1) A person who-

(a) Being –

• (i) Employed in the Public Service, or the holder of any public officer; and
• (ii) Charged with the performance of any duty by virtue of employment or office, (not being a duty touching the administration of justice).

Corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or permitted 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) . . .

is guilty of a crime.”

ELEMENTS OF OFFENCE

10. The elements of the offence are:
    

(a) a person;

(b) on a date;

(c) at a place;

(d) employed in the public service;

(e) charged with a performance of any duty by virtue of employment; and

(f) corruptly asks or receives any property or benefit for himself or any other person on account of any such act or omission to be done by him in the discharge of the duties of his office.

11. In this instance the State alleged that the accused, a policeman charged to perform any duty of a policeman, and by virtue of that employment corruptly asked for and received K50,000 for himself and another person on account of being a policeman charged with a duty to facilitate police bail for Aaron Cui in the discharge of his duties as a policeman.
    

ANALYSIS OF EVIDENCE

EVIDENCE NOT DISPUTED

12. The following evidence is not disputed:

(i) The accused is employed as a policeman. Section 1 (i) of the Criminal Code Act defines “person employed in the Public Service to include members of the Police Force.”

Therefore, the accused is a public servant. Elements (a), (b) (c) and (d) are proven by that undisputed evidence which are now proven facts and therefore proven beyond reasonable doubt.

(ii) Charged with a performance of any duty, by virtue of his employment.

13. The accused, a police officer at the time was the team leader or Commander NCD’s Investigation Task Force (ITF) team, assisting the CID Boroko in investigating some major cases reported at the Boroko Police Station.
    
14. Onne Bani’s uncontradicted evidence is that he, Onne Bani, requested the assistance of First Constable Paul Bari and the accused to help him bail out his friend Aaron Cui from Boroko Police Station cells. The accused, in accepting the request by Mr Bani, set the bail at K50,000; broken into 7 charges at K5,000 per charge bail amount for each charge totalling K35,000 and he asked for a K15,000 payment for his bosses, who would consider and determine the bail.
    
15. On the accused’s own statement tendered into evidence, he never asked for K50,000 payment from Onne Bani and never received K50,000 from Mr Bani.
    
16. If I accept Onne Bani’s evidence, the element will be satisfied beyond reasonable doubt. If I accept the accused’s evidence, that element will not be proven. Right at the outset, Onne Bani was there, only for one purpose: to get his Chinese friend, Aaron Cui, out on bail. Aaron Cui had 7 charges on him, and the accused first quoted him K10,000 per charge, a total of K70,000. That quote was reduced to K5,000 per charge for K35,000 with K15,000 for the bosses, taking the total amount to be paid at K50,000.
    
17. Onne Bani said he called Michael Xu, a Chinese friend to find K50,000 to bail Aaron Cui. Michael Xu gave evidence that he got a K50,000 loan from another Chinese man.
    
18. Onne Bani said he got K50,000 from Michael Xu and paid the K50,000 to Stanley Japele and Paul Bari on the understanding that Stanley Japele and Paul Bari would facilitate the release of Aaron Cui on bail from the Boroko Police Station cells.
    
19. That did not happen. Aaron Cui was not released from Boroko Police Station cells until the National Court heard the bail application and granted him bail of K1,500.00.
    
20. Once Aaron Cui was out on bail, Onne Bani told Inspector Terry Apolos that he gave K50,000 to Stanley Japele and Paul Bari to bail out Aaron Cui. Inspector Terry Apolos demanded Japele and Bari to return the K50,000, but was never returned.
    
21. Stanley Japele denied ever receiving the K50,000 from Onne Bani.

DID PAUL BARI AND STANLEY JAPELE ASK FOR THE K50,000 PAYMENT FOR BAIL?

22. Right from the start Mr Bani was asked by Aaron Cui to help him get out on bail. Aaron Cui was in police custody and desperate to get out. Mr Bani asked Michael Xu to help their common friend Aaron Cui out on bail. Michael Xu found the K50,000.
    
23. Onne Bani gave sworn evidence that Michael Xu gave him K50,000 to give to the police officers. Michael Xu corroborated Mr Bani’s evidence. He said he loaned K50,000 from another Chinese friend to help Aaron Cui out on bail and gave it to Onne Bani. His evidence was tested through cross-examination. Onne Bani was cross examined on his evidence and maintained that he gave K50,000 to Stanley Japele and Paul Bari for the release of Aaron Cui from custody at the Boroko Police Station Cells.
    
24. Stanley Japele relied on his statement tendered into evidence by the State but did not give evidence.
    
25. I will answer the heading of this section in the next section.

WHOSE STORY DO I BELIEVE?

26. Onne Bani’s story and Michael Xu’s story have been tested. They were not discredited in their evidence by the vigorous cross examination of the Defence Counsel. Onne Bani and Michael Xu did not know how to go about getting bail for their friend so Mr Bani engaged Paul Bari to help them. Paul Bari called the accused to help them and the accused obliged. K50,000 was the price quoted by the accused to Mr Bani which they would have to pay to get their friend out on bail. They found the K50,000 and Mr Bani paid it to the accused and Paul Bari. Their evidence was tested and remains credible.
    
27. I am left to accept Onne Bani’s evidence that he gave K50,000 cash to Stanley Japele and Paul Bari to enable them to facilitate the release of Aaron Cui from custody. Stanley Japele and Paul Bari did not facilitate the release of Aaron Cui. I find as a fact that Onne Bani did get the K50,000 from Michael Xu and he in turn paid it to Stanley Japele and Paul Bari to bail Aaron Cui. As a consequence, I find as a matter of fact that Stanley Japele and Paul Bari set the bail at K50,000 and asked Mr Bani to pay that amount before bail could be arranged. In the end, the accused and Paul Bari received the K50,000 from Onne Bani. That finding is based on the un-discredited evidence adduced by the State.
    
28. The lawful charged duty of police officers, Stanley Japele and Paul Bari, was not to consider the police bail but to facilitate bail for Aaron Cui by getting a commissioned officer, who is a bail authority, to or the Metropolitan Superintendent to consider bail for Aaron Cui or have Aaron Cui taken immediately to a Court of competent jurisdiction and have him apply for bail.
    
29. Stanley Japele and Paul Bari did not facilitate that. Instead, the accused generally denied he ever received the money.

THE DEFENCE SUBMISSION

30. The Defence Submission was that considering and granting bail was not the accused’s charged duty. He was not charged with the duty as a policeman to consider and grant or refuse bail and as such that element of the charge was not proved beyond reasonable doubt. The defence may have relied on the authority of the State v Waesa Mollo (1988) PNGLR 49. In that case, the Court held that the charge under Section 87(1)(a) had not been made out because the public servants’ duties as a Chairman of PNG Defence Force Savings and Loans Society were not those of a public servant. A similar argument was advanced in this case by the Defence that it was not the accused’s duty to grant or refuse bail. It was submitted that it was the duty of commissioned officers of the PNG Police Force to grant or refuse bail and not non-commissioned officers at a police station.
    
31. Section 87 (i) (a) (ii) says: “charged with any duty by virtue of employment of office.” The words: “charged with any duty by virtue of employment of office” is not restrictive to any particular duty in my respectful opinion. The application of those words are, in my respectful opinion, very general. In the context of the facts of this case, the accused, a policeman, accepted the role to facilitate bail for Aaron Cui. I agree that Stanley Japele was not a commissioned police officer to be a bail authority. As a public servant, the accused held himself out to be charged with a duty to help facilitate bail by posting the bail at a discounted amount of K5,000 per charge and there being 7 charges, the bail amount of K35,000 was requested and a further K15,000 was posted by the accused to appease the bosses to consider the bail favourably. That was Onne Bani’s version of the events relating to the issue of bail for Aaron Cui. With respect, Mr Bani’s version is the only credible evidence before the Court. I accept Mr Bani’s version.

WHAT ARE THE POWERS AND FUNCTIONS OF A POLICEMAN OR A POLICEWOMAN?

32. The Constitution, Section 188 establishes the Police Force as a State service.
    
33. Section 197 of the Constitution says:

“197. Functions of the Police Force.

(1) The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—

• (a) to preserve peace and good order in the country; and
  

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

(2) Insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.”

34. The Constitutional provision is general and wide in nature and in its application. I have gone to Google to help me unpack Section 197 (1) of the Constitution and this is what Google says in relation to preservation of peace:

“Preservation of peace means to hold in good order and to prevent from being altered, damaged or destroyed.”

35. That is just part of the Constitutional role of the policemen and policewomen. Google further says:

“In relation to maintaining and enforcing the law impartially and in an objective manner is a principle of Justice holding that decision should be based on objective criteria; rather than on the basis of bias or prejudice. Making decisions and providing service on merit and without bias or self interest and implementing government policies is the role of police officers.”

36. In this instant case, it is the duty and role of police officers to provide advice or service on merit and without bias or self interest. Clearly, the accused was duty bound to advise and serve Onne Bani without asking for any form of favours, payment, bias or self interest. Evidence presented shows that Japele’s advice to Onne Bani was biased and loaded with an element of self interest to get the K50,000 from Mr Bani for himself and Paul Bari. Japele was meant to be assisting Onne Bani to have Aaron Cui out on bail without any conditions or without any request for favours.
    
37. In practice and day to day operations, PNG police officers are already exercising powers and functions consistent with the Constitution and Section 140 of the Police Act 1998. Section 140 says:

• “A member of the Force has same powers, duties, rights and liabilities as a Constable under the underlying law, except so far as they are modified by or under an Act.”

PNG police officers are already performing roles imposed on them by Section 197 of the Constitution and the Police Act of 1998.

38. The Police Act of 1998 with respect, in my view does not attempt to amplify s. 197 of the Constitution. I suggest it was a deliberate act of the legislature not to unpack s. 197 of the Constitution and instead left it open for good reason. The roles and functions of the police should never be limited; subject only to law.
    
39. The Supreme Court in Madang Provincial Government and Others v John Simon and Others (2015) SC 1473 said that:
    

“The primary function of the Police Force is to preserve peace and good order and to maintain and as necessary enforce the law in an impartial and objective manner. (See Section 197 of the Constitution).

They also have the same powers, duties, rights, and liabilities as constables under the underlying Law, except in so far as they are modified by an Act. (See s. 139 of the Police Act Chapter 65).

At Common Law, they have same wide powers to take necessary step to keep peace, prevent crime, protect property form criminal injury, detect crime and bring an offender to justice: Rice v Connolly [1962] 2 QB 414.”

40. With respect, I agree and adopt what the Supreme Court said in that case.
    
41. I wish to add that the Police Force is one unique agency of the State that is required to be everywhere all the time. They have a lawful duty to maintain law and maintain order. At elections, for example; they must be there; an accident scene, they must be there; at a natural disaster, they must be there; at a riot, they must be there; a fire at a house, they must be there. Floods, famine, internal disorders, spread of epidemic like COVID 19, and many more situations, one can think of, the Police must be there to ensure law and order is maintained at those times.
    
42. Through Google, I was able to get into an article headed as “Functions, Roles and Duties of Police in General – BPRD”. This is what that article says concerning the role and functions of Police in general:

“Role, Functions and Duties of the Police in General

The roles and functions of the Police in general are:

(a) To uphold and enforce the law impartially, and to protect life, liberty, property, human rights, and dignity of the members of the public;

(b) To promote and preserve public order;

(c) To protect internal security, to prevent and control terrorist activities, breaches of communal harmony, militant activities and other situations affecting Internal Security;

(d) To protect public properties including roads, railways, bridges, vital installations and establishments etc. against acts of vandalism, violence or any kind of attack;

(e) To prevent crimes, and reduce the opportunities for the commission of crimes through their own preventive action and measures as well as by aiding and cooperating with other relevant agencies in implementing due measure for prevention of crimes;

(f) To accurately register all complaints brought to them by a complainant or his representative, in person or received by post, e-mail or other means, and take prompt follow-up action thereon, after duly acknowledging the receipt of the complaint;

(g) To register and investigate all cognizable offences coming to their notice through such complaints or otherwise, duly supplying a copy of the First Information Report to the complainant, and where appropriate, to apprehend offenders, and extend requisite assistance in the prosecution of offenders;

(h) To create and maintain a feeling of security in the community, and as far as possible prevent conflicts and promote amity;

(i) To provide, as first responders, all possible help to people in situations arising out of natural and man-made disasters, and to provide active assistance to other agencies in relief and rehabilitation measures;

(j) To aid individuals, who are in danger of physical harm to their person or property, and to provide necessary help and afford relief to people in distress situations.

(k) To facilitate orderly movement of people and vehicles, and to control and regulate traffic on roads and highways;

(l) To collect intelligence relating to matters affecting public peace, and all kind of crimes including social offences, communalism, extremism, terrorism and other matters relating to national security, and disseminate the same to all concerned agencies, besides acting, as appropriate on it themselves.

(m) To take charge, as a police officer on duty, of all unclaimed property and take action for their safe custody and disposal in accordance with the procedure prescribed;

(n) To train, motivate and ensure welfare of police personnel.

43. With respect, it is clear that the functions, roles and duties of police officers are wide in the common law world. I agree and adopt with respect the above list as part of the underlying law in this Country but is not exhaustive. The functions, roles, duties and responsibilities of the police are so broad that it is not really appropriate to list them. Police officers are answerable and accountable for any wrong doings as pointed out by the Supreme Court in the case of Madang Provincial Government (supra) and by Section 140 of the Police Act of 1998.
    
44. The roles, duties and responsibilities of the members of the Police Force are to be performed as their obligated legal and moral duty to society. Police officers upon taking office as members of the Regular Constabulary swear an Oath of Office. This is the Oath they individually take:

“I .................. do swear that I will well and truly serve the Independent State of Papua New Guinea and its people in the Office of member of the Royal Papua New Guinea Constabulary without favour or affection, malice or ill-will from this day, until I am discharged from the office, and that I will seek and cause the peace to be kept and preserved and will prevent, to the best of my power, all offences against the peace, and that, while I continue to hold that office, I will, to the best of my skill and knowledge, discharge all the duties of it faithfully according to law.”

See Police Act 1998 – Section 4 (2) and Schedule 1.

The Oath is a solemn one and is to be made in all sincerity and thoughtfulness. It is a prerequisite to being appointed to be a member of the Force. Police officers are therefore not entitled to ask for or solicit payments of any kind from the public. They are already paid for the work they do as police officers.

45. I also mention here the case of Taru and Contempt Proceedings (1982) PNGLR 292, Pratt J in that case said:

“The office of constable of course is one of the most ancient under the common law and goes back for centuries. Indeed Halsbury Laws of England (3^rd ed.) Vol. 30, par. 79 points out that the history of the police is the history of the office of constable and, notwithstanding that the present day police forces are the creation of statute and that the police have numerous statutory powers and duties, in essence, a police force is neither more nor less than a number of individual constables, whose status derives from the common law, organized together in the interests of efficiency.”

46. Apart from the general role of police officers, there are specific specialised areas of police operations they are required to perform but I will not get into those now.
    

WHAT IS “CORRUPTLY” AS USED IN SECTION 87 (1) (a) OF CRIMINAL CODE ACT?

47. Dictionary.com defines corruptly as: “guilty of dishonest practices, as bribery, lacking integrity; crooked and debased in character; depraved, perceived; perverted; wicked; evil.”
    
48. What is “corruptly” was discussed by Brunton AJ in the State v Toamara (1988-89) PNGLR 253 at page 256 and 257. He said:

“CORRUPTLY

The meaning of the word corruptly in law is confused. It is an undefined adverb see Sir Bernard McKenna. The Undefined Adverb in Criminal Statutes [1966] Crim LR 548.

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) 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.”

49. In the end result, his Honour was of the opinion that the State must prove the element of dishonestly to prove corruptly. Corruptly and dishonesty have been defined to mean “intended to cheat, deceive or mislead”. See The State v Gabriel Ramoi (1993) PNGLR 390.
    
50. The Oxford Advanced Learners Dictionary new Eight Edition defines corruption as noun to mean:

“dishonest or illegal behaviour, especially of people in authority.”

Corrupt as a verb mean:

“people willing to use their power to do dishonest or illegal things in return for money or to get an advantage.”

Corrupt when used as a verb in relation to behaviour, the same Dictionary defines it as: “dishonest or immoral”.

51. I find on the evidence that asking for a K50,000 bail amount was ludicrous and unreasonable and in my respectful opinion serious abuse of office for personal gain. The accused, a policeman, was in a position of authority and power to do the right thing. He was willing to use his power and authority to do dishonest act by asking for money in a dishonest manner. The circumstances Mr Bani found himself in was desperate. He was desperate to get his friend Aaron Cui out on bail. Paying K50,000 was affordable, it seemed. When one considers the K50,000 demanded and received and the K1,500 actually bailed out on, it is clear that Japele corruptly asked and received the K50,000. Stanley Japele’s behaviour and action is aptly described by the Oxford Dictionary meaning as quoted above.
    
52. Stanley Japele’s statement which is exhibit A in these proceedings dwells largely on K100,000 given to Inspector Terry Apolos by Onne Bani. The only time K50,000 is mentioned is in relation to Onne Bani’s promise to pay them K50,000 if they did 4 things for him. He denied being given K50,000 by Onne Bani to bail out Aaron Cui. Stanley Japele’s statement contents were put to Mr Bani in cross-examination but Mr Bani was adamant with his own version of the story.
    
53. One aspect of Stanley Japele’s statement recorded on page 6 interests me where he says:

“This was the last time we saw Bani Onne. Every time he rang me or rang First Constable Paul Bari, we use to lie to him making him think that everything is ok and under control”.

54. I do not know if that is part of an investigation training tactic, or a tactic often used by police to ward off ignorant persons who do not know police processes and procedures in their line of duty. His behaviour as he himself described in that statement is clearly inappropriate and with respect, in my respectful opinion, is biased and is serving his personal interest.
    
55. He said he would lie to Onne Bani about what he wanted to know. This part of the statement tells me he, Stanley Japele, is used to lying and has a propensity to lie. He was not interested in assisting Onne Bani to get Aaron Cui out on bail any more because he got what he wanted; the K50,000.00.
    
56. Onne Bani’s mind was fixed on trying to get his friend Aaron Cui out of custody on bail. Japele wants the Court to believe that Onne Bani was not interested in getting his friend out on bail but wanted to have Inspector Apolos arrested and charged and getting back the things the police obtained in their raid on Aaron Cui’s premises.
    
57. The long explanation by Stanley Japele in his statement misses the point. He is charged for official corruption whether he and Paul Bari were given K50,000 by Onne Bani to have Aaron Cui out on bail. That was all. Stanley Japele did not specifically in his statement deny receiving the K50,000 for the bailing out of Aaron Cui but is referring to a K50,000 for something else promised by Onne Bani to pay them.
    
58. I have studied Stanley Japele’s statement. It does not deny the question of whether he received the K50,000 from Onne Bani. Having said that, the K50,000 was provided by Michael Xu, which he gave to Onne Bani and Onne Bani gave to Stanley Japele. That evidence is credible and has been tested in cross-examination and not discredited. Having said this, I accept the evidence of Onne Bani in that regard.
    
59. In that regard elements (c) and (d) of the offence under Section 87(1)(a) are established and proven beyond reasonable doubt. All elements of the offence are now proved beyond reasonable doubt.

SILENCE OF ACCUSED

60. At the close of a State case, the accused may make a no case submission or answer the charge by giving evidence himself or call other witnesses to give evidence on his or her behalf or he or she may choose not to give evidence. That is at the discretion of the accused and his or her counsel. When an accused elects to be silent, the Judge, the State Prosecutor and any defence counsel cannot suggest that because the accused did not give evidence, he or she is guilty of the offence charged. See Paulus Pawa v The State (1991) PNGLR 498. At the close of the State case, the Defence counsel in my opinion should carefully consider the evidence and ask whether the State has a strong case and advise the accused accordingly and put the positives and negatives for remaining silent and the same for going into evidence and allow the accused to decide what he or she wants to do. In the Paulus Pawa case (supra), the Supreme Court said:

“The failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained in vital matters.”

61. I am mindful of the fact that the State always has the burden of proof. The accused need not prove his or her innocence, but where the State evidence is strong against an accused, the defence should consider calling the accused to establish some doubt on the prosecution case.
    
62. In the instant matter, the accused remained silent. In defence, he relied on a statement he made to the police which was the evidence he relied on. That statement, however, did not create or establish any doubt to my mind.
    
63. Accordingly, given the uncontradicted evidence before the Court, I am satisfied beyond reasonable doubt of the guilt of the accused. The State evidence is credible. I find the accused guilty as charged beyond reasonable doubt.

___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused