N11338
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 461 & 521 OF 2023

THE STATE

V

JEFFERY KIFOI AND HENRY LAWRENCE WANAPI

WAIGANI: BERRIGAN J
22 AUGUST 2024; 8, 23 APRIL, 16 JUNE 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – UNLAWFULLY DEMANDING PAYMENT WITH INTENT TO EXTORT - Section 390A(a)(b)(iii), Criminal Code – Elements of Offence – Principles applying - Meaning of “threatens” - Principles applying – Joint trial – Guilty - Not guilty.

CRIMINAL LAW - PRACTICE AND PROCEDURE – Prosecution duty of disclosure – Ongoing duty to disclose material which may cast doubt on the credibility of a witnesses the prosecution chooses to call, including a prior conviction or the fact that a witness has been charged with an offence.

CRIMINAL LAW - PRACTICE AND PROCEDURE - Entrapment – Principles applying.

Cases cited

State v Parakua & Anor (2011) N4199
State v Apkas (2019) N7884
R v Loosely [2001] UKHL 53
State v Hore [1981] PNGLR 536
Ridgeway v R [1995] HCA 66
R v Keane [1994] 1 WLR 746
R v Brown [1997] UKHL J0724-4

Counsel

Mr J Siminji for the State 
Mr J Sebby for the accused  

DECISION ON VERDICT

1.	BERRIGAN J:  The accused are jointly charged with one count of unlawfully demanding payment contrary to s 390A(a)(b)(iii), Criminal Code, commonly referred to as extortion. 

2.	In short, it is alleged that between 23 January 2019 and 7 January 2020 Constable Jeffery Kifoi and Reserve Police Officer, Henry Wanapi demanded K50,000 from Tars Sauka and in order to obtain compliance with that demand threatened to charge him with a criminal offence or offences.  

ELEMENTS OF SECTION 390A, CRIMINAL CODE  

3.	Section 390A, Criminal Code provides:

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

(a) demands the thing, payment or compensation; and
(b) in order to obtain compliance with the demand–
(i) causes or threatens to cause injury to any person or damage to any property; or
(ii) does or threatens to do any act which renders, or is likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property; or
(iii) otherwise unlawfully threatens or intimidates any person,
is guilty of a crime.

4.	There are a number of potential formulations under s 390A and the terms of the indictment will dictate what must be proven by the State: State v Parakua & Anor (2011) N4199, per Cannings J; applied State v Apkas (2019) N7884.

5.	For present purposes the State must prove beyond reasonable doubt that the accused:

a.	with intent to extort payment from a person, namely Tars Sauka;
b.	demanded payment; and
c.	in order to obtain compliance with the demand;
d.	unlawfully threatened or intimidated any person, in this case Tars Sauka.

STATE’S CASE
6.	The State’s principal witnesses was Tars Sauka, District Administrator, Kikori LLG. At the time he was living with his wife and six children in Port Moresby where the children were being schooled. 

7.	On the morning of 24 December 2019 following a DDA meeting at Laguna Hotel he was approached by a person who identified himself as a CID policeman and asked if he was Tars Sauka, CEO for Kikori District. He said yes and was told he was under arrest. He turned around and was told to put his hand on top of the officer’s hand and forcibly taken to what appeared to be a police vehicle, an unmarked five-door Landcruiser, in which two others in plain clothes were sitting in the back with big firearms. The officer told him they were reserve police. He was told to sit in the front. They drove out towards Waigani Traffic lights. The officer demanded his phone, told him he could not contact anyone as he was under arrest, demanded the names, phone numbers and locations of his wife and children. The officer told him he was CID Steven Nibu. They drove towards Hohola and Tokarara where they waited whilst Nibu went into his house and came out with an envelope and told him “you have a serious case with us, CID Boroko, and because of that we are arresting you”.  Sauka said he was not a common criminal and asked who the complainant was and what the complaint was but was not given any information. He was driven from Hohola to Tokarara, to Islander, past the traffic light, over the main road and down to the back of the Arrow Club towards Gordons where Nibu stopped the vehicle. They got out to chew betelnut. He was told to stay in the car. After about 10 minutes he told them that he has to be arrested properly and asked for a warrant of arrest. They told him they have the warrant in their office in Boroko. After some discussion he was taken back to Laguna. He was told to give K60,000. He said “why would I give K60,000. I don’t have that money”. Even as they drove out from Laguna and all the way he was told to pay K60000 or go to gaol. After they drove back to Laguna, they sat in the restaurant. Nibu continued to ask for K60,000 so he gave him K900. Nibu told him he would call back and drove out. Nibu called him later and asked him if he had the K60,000. He told him he could not find the money and had or could get K3000 in a day or so. Nibu said K3000 was not enough because his case was serious. “If you do not want to go to gaol you will provide K60,000”. 

8.	On 28 December 2019 Nibu came to Laguna. They sat together and Nibu removed a pistol from his hand bag and showed it to him and put it back in the bag again. Sauka gave him K3000 and Nibu left. Somebody who identified himself as Nathan from ORD called to confirm that he had given the money. 

9.	On 1 January he was still under pressure so he gave Nibu another K3000. Nibu told him to look for the money. He only had K19600. On 6 January he reported the matter to the Internal Affairs Unit of the RPNGC. That afternoon they went to Laguna. He was inside the restaurant and called Nibu who came and sat in the restaurant and then after some discussion he handed over an envelope containing K19,600 and a bottle of wine. On instruction Sauka called Charles Winuan who walked in and arrested Nibu as he went to exit the main gate from reception. 

10.	To his knowledge he did not have an allegation against him. He gave K900 and the subsequent monies because he was told they were police and he believed his life and that of his family was in danger. Nibu told him he had been monitoring his movements and knew he was living at 5 Mile. He did not go to the police in the first place because he did not know what to do and was worried if they would help. He knew he had done nothing wrong with tampering with his funds or anything. The only place he thought he would get good help was IAU. They said the serious allegations were to do with District Funds but they never showed the file to him or mentioned the complainant. Nibu also communicated by telephone and SMS. He told him the K60,000 would be divided between him and his boys and CID bosses in Boroko. 

11.	Under cross-examination he confirmed that he is still the District Administrator but that the Member for Kikori had written to him informing him that he would be stood down at a time to be confirmed because of an allegation concerning the purchase of a DDA vehicle. In 2019 he was told by the police who approached him at Laguna that the allegations were in relation to the misuse of Kikori funds but he asked for the documents and the name of the complainant and none was given to him. He did not agree to being arrested. He had done nothing wrong. They were taking him to Boroko Police Station and he cooperated but at the Arrow Club they turned back instead of going to the station. The money he gave on 6 January was his own money. He was threatened to pay K50,000 first but it increased to K60,000. He gave the money because his life and that of his family was in danger. He did not know who they were.  He did not understand why they were doing this and he was in fear for his life. He did not think it would be safe for him to go to Boroko Police Station so he went to the independent IAU. There was no actual harassment but he told his family not to move out of the house. He was not aware of an allegation that he misused K200,000 DDA funds at that time. To his knowledge IAU has his phone records. It was not his intention to stall the arrest by giving them money and then have them arrested to stop the whole allegation. 

12.	On 1 January Nibu asked him to pay at least K50,000 but it increased again to K60,000 on 4 January via phone call. The K19,600 was confiscated on arrest of C/Kifoi but later returned to him.

13.	Chief Inspector Charles Winuan is a police officer of 39 years standing. He was OIC CID NCD but has recently been appointed Provincial Police Commander, Oro Province. In 2019 he was the OIC Internal Affairs Directorate (IAD) based at Koki, a position he held for 16 years. Whilst on duty on Monday, 6 January 2020 he joined a conversation between the Director of IAD, Robert Ali, and the complainant in which the complainant reported what had happened and during which the complainant received a phone call, which he placed on speaker. He heard a person ask Sauka to withdraw K60,000 and bring it to him at Laguna that day, K30,000 for the “big boys at Boroko Police Station” and K30,000 for himself and the armed robbery squad at Boroko Police Station. The person said he was going to get that money after lunch. In response CI Winuan mounted an operation to apprehend the suspect. He dropped Mr Sauka at Laguna and waited outside in the car park in a sedan hired using K270 obtained from Mr Sauka. Sometime later a five door Landcruiser drove in to the car park and sometime after that the suspect walked into Laguna. CI Winuan already had officers inside the hotel and other officers in two police vehicles waiting in the vicinity of the hotel. He called for those in the police vehicles to come in and disarm the Landcruiser. He was informed by both the complainant, who called him, and another officer, John Nigaul, who texted him from inside, that the suspect was walking out of the loungeroom, upon which he apprehended the suspect at gunpoint and oversaw the search and seizure of certain items, including a firearm, a bottle of wine and an envelope containing K19600 belonging to Mr Sauka. 

14.	CI Winuan knew C/Kifoi by face but not by name. He believed Kifoi was dismissed in around 2017. He did not see the dismissal minute himself but was informed by the CI Alphonse Maipe, IAD.  He was made OIC NCD in 2021 and knowing that the case would come up he checked the list. C/Kifoi was not employed with CID Boroko but was deployed to assist the Armed Robbery Squad with the William Kapris case as a hit team. He did not know the other two. He did not know if Wanapi was a serving member of the Constabulary. He did not know whether there was an allegation against Mr Sauka but the manner in which Kifoi and others arrested and extorted Sauka was wrong. He did not check with the National Crimes Records Office to see if a complaint against Sauka was registered there. 

15.	He is OIC CID and all CIDs in NCD report to him – Sexual Offences Squad, Motor Squad, Break-in, General. Armed Robbery investigates armed robbery offences, involving firearms. They do not investigate misappropriation. NCD Fraud and National Fraud and Corruption Directorate investigate those matters.  

16.	The investigating officer, First Constable Alfred Kambae, has been a member of the IAD since 2015, currently A/IOC, Madang. He first became involved when he attended a briefing and then participated in the stake out on 6 January 2020 led by CI Winuan to apprehend Steven Nibu as he was known to them at the time. Upon advice from Winuan that Nibu had been arrested it was he and two other officers who arrested Wanapi and Vakinap in the vehicle in the Laguna car park. He knew Vakinap as an informant. He did not know the names of Wanapi or Kifoi until at IAD base. He checked records to confirm that both were serving members of the RPNGC. C/Kifoi was attached with Boroko Police Station NCD and Wanapi with Central as a reserve officer. At the time Kifoi had a pending notice for dismissal but the notice had not yet been served on him thus he was still an active member of the RPNGC. It was not possible to obtain a warrant in time to arrest for the offence of compounding a crime (as required under s 129, Criminal Code) so they charged them with abuse of office. 

17.	He did check and there was no crime report or complaint against Mr Sauka at that time. The accused exercised their right to remain silent and did not inform him of the allegations against Mr Sauka. He, CI Winuan, and Robert Ali went to Boroko to check if there was a complaint. There was nothing in the Boroko OB book at the Police Station. If there had been it would have been channelled through to the bosses at Boroko. To his knowledge most complainants are registered at the front counter and allocated to the relevant squad. He understood that his bosses Winuan and Ali checked with the bosses and no matters were registered. 

18.	He became aware yesterday from a colleague that Mr Sauka had been charged in relation to the alleged forgery of a DDA resolution for the purchase of a vehicle between October and November 2023.  

19.	A mobile phone was confiscated from Kifoi at the time of his arrest. He applied for a search warrant to get phone records but served the brief of evidence before he was moved to duty outside NCD and was then terminated so Kifoi’s phone was never checked or records obtained. He was reinstated in July 2021. 

DEFENCE CASE

20.	Each of the accused gave evidence in their own defence. C/Kifoi admits that he received certain monies from Mr Sauka but denies demanding them with any threat or intention to extort. RC Wanapi was arrested on 6 January but denies being present on 24 December 2019 and any knowledge of the alleged offence. 

21.	Jeffery Kifoi passed out in 2010. He was served with dismissal papers whilst being held in relation to this matter and reinstated by the Commissioner in 2024. He worked at Bomana Police College, then NCD Foot Patrol, then a task force and then CID Armed Robbery, Boroko, to which he was attached at the time of the alleged offence. A formal complaint was made by the current Member for Kikori, Soro Eoe, which was lodged by his Second Secretary, against Tars Sauka, District Administrator, with the Armed Robbery office at CID, concerning misappropriation, money laundering and forgery, later described as abuse of office and uttering against DDA funds.  He was the case officer and was looking for Sauka when he received information that he was living and having meetings at Laguna Hotel.  On 24 December he and two other on-duty policemen went to Laguna. He left his boys in the vehicle and went inside. Upon seeing a man matching the description he confirmed that it was Mr Sauka. He introduced himself as Jeffery Kifoi, attached at Boroko and cautioned him but did not arrest him. He told him there was an allegation against him and they have to go to Boroko and conduct an interview. He did not push him or intimidate him. Mr Sauka walked freely to the vehicle. They drove towards Waigani traffic lights and then to his house at Tokarara where he retrieved a yellow envelope containing the complaints against Sauka. As they drove back towards Boroko he told Mr Sauka he can put his phone on the desk top of the car. He told him that they have allegations from the Member himself and later they will go to the office to take statements and he can call his lawyer to come. Whilst at the Islander traffic lights Sauka started crying and saying he has a wife and kids, and grandchildren. He asked them to stop and have a talk before they got to the police station. So when they arrived at the Fortune Club he got out and threw betelnut at the market. Mr Sauka was crying and he felt sorry for him. He did not want to see him cry so he spent 5 to 7 minutes chewing at the market table. When he got back in the car Sauka said “it is almost Christmas, and I have family and I have a DDA meeting at Kikori and I have not spoken to my wife and children. It is just an allegation, I am not a criminal and when I speak to my lawyer I will come to the office”. He felt sorry for him so took him back to Laguna. He did not intimidate him or threaten him, nor did his policemen. The weapons in the car were police weapons. Mr Sauka gave them K300 to “buy lunch or drinks for you guys and you can go and when I am ready I will call you”.  After Sauka gave them K300 he told him to speak with his lawyer and when he is free to call him on his cell phone.  Later that day at around 7 or 8 pm Sauka called him and told him to come to Laguna. At Laguna Sauka ordered food, they ate and then Sauka showed him around Laguna and the development plan for Kikori. They had some little chat and Mr Sauka handed him K3000 in cash and said “son you go buy food for your family and fuel for your car”. He said “Mr Sauka are you trying to bribe me?”. He said “No, you are my son, you buy rice and food for family, you can have it, it is from me to you, you can have it. You can leave my complaint there. I am not ready. The executives are here from Kikori. All sitting down here. Let me have this meeting and when done with DDA members from Kikori we can come to your office for interview”. After that he handed him K3000. He was reluctant because the sum was a bit bigger. At no time did he ask or demand anything from Sauka. 

22.	On 28 December Sauka called him again and said “son where are you?”.  He said he was at work. He went to Laguna and Sauka gave him another K3000. He said “son I am very busy”; “son you can keep this to buy food for the family”.  He was scared he was trying to bribe him to drop the case. He did not demand anything from him, text him, or arrest him. He is still using the same number. All his messages and texts are there at Digicel. The police can get it there. When he was apprehended he handed over his phone and everything was on his phone. 

23.	On 1 January Mr Sauka gave him another K3000 at Laguna. 

24.	On the morning of 6 January, he was at Boroko Police Station with Wanapi and Dermot. Dermot is a police informant. Mr Sauka called him and told him that he would meet him later that day at the usual place at Laguna. Sometime later Mr Sauka called him and he, Wanapi and Dermot drove to Laguna. He parked the vehicle and went inside to see him. He was carrying his police issued Smith and Westen pistol inside his waist bag as he usually does. He had some weapons in the car. An assault rifle, caribe A2, an A1K1, all police issue, not military issue. CID vests, rounds of ammunition and a homemade gun that belonged to some drug boys they had apprehended some time ago, with some rounds, knives, and a one-bang phone. As soon as he walked in to see Sauka he could sense that the situation was not right. Sauka walked straight to him and handed him a brown shopping bag containing a wine bottle and some cash in an envelope. He did not come and greet him like usual and ask him to have some coffee. Mr Sauka said “in the bag is some cash and little wine for you, take that and enjoy with your boys”. At that very instant he could see the policemen who were already waiting for him inside Laguna came and arrested him. Whilst in custody he was served with a dismissal notice from IAU relating to the unlawful use of a motor vehicle. 

25.	As he was dismissed from the police force he could not access the office or any files and so he does not know what happened to the file against Sauka. It is a long time now so he is not bothered. But recently one of his colleagues needed transport to the committal court and he was standing outside and when going through the list he saw Tau Sauka’s name and said “wow it must be the person I arrested for the same case”.  He went to the Registry and obtained a copy of the information and statement of facts, Exhibit D1. 

26.	Under cross-examination, he spent 14 to 15 years with CID Boroko. His unit was attached to CID Armed Robbery and assisted other CIDs, SOS, CID Motor, Homicide. Administratively his team is called “Uniform Team”. He is not actually a criminal investigator but from time to time does investigations. He has done many and field operations too. He mainly does first response and then passes the matter on to investigators. The complaint was lodged with Armed Robbery. Kambae and Winuan lied. The station observation book is for Boroko PS only. CIDS have their own OBs. The allegations were official corruption, forgery, uttering and misappropriation of Kikori DDA funds.  The evidence was very strong. He executed search warrants with BSP and millions were put into Sauka’s personal account. The complaint came to him the first week of November or December 2019. He gathered all of the evidence in that time. He only did the search warrant. The other information was given by the s 32 officer, or the Minister, or his First or Second Secretary. The files and search warrants and other documents were inside the envelope and some documents were also at Boroko. He forgot it until he got Mr Sauka and then he went to the house. There was enough evidence to arrest him but he was still collecting evidence from the s 32 officer who was going to get other evidence about payments to his accounts.  He did not arrest Mr Sauka. He was ashamed about receiving the money because it was too much and the complaint came from the Member and he was afraid for his job as well so he told Sauka “no good you bribe me; if it is your intention to bribe me that would not work out”. He knew that according to his oath it was wrong to receive monies in the line of duty. He told Sauka that if he is trying to bribe him the Member can have another investigator take over the case. He received another K3000 on 1 January at the reception of Laguna. Sauka told him it is for rice and fuel. He told Sauka “father that is too much money you gave me, the kind of money is scaring me, the complaint is from the Member. The Member might find out that you are bribing me or resisting arrest and I am also afraid”, but he said “that money is for your rice and fuel so don’t worry but whatever the allegation is I will prepare with my lawyer and come back.” He did not report receiving the money to his superiors.  On 6 January 2020 he did not know there was money in the bag. Mr Sauka gave him the bag. He did not get it from Mr Sauka. As soon as he handed him the bag Sauka walked on. D1 is one of the many allegations against Mr Sauka or similar to it. The initial complaint was given to him by his boss OIC Joe Puana.

27.	Henry Lawrence Wanapi has been a reserve police officer for 14 years, attached to Central Police Headquarters. He was engaged with CID members and other officers from the provinces for the Tommy Baker special operation, during which time he was based at Boroko CID, Armed Robbery Squad under Joe Puana and Robert Volo. He was arrested on 6 January 2020 with Jeffrey Kifoi but was not present on 24 December. On 6 January he was with Jeffrey Kifoi at Boroko when Kifoi received a phone call and told him and Vakinap to get on the vehicle. It was a joint operation and so they rotated through vehicles. Kifoi is a regular member so whatever he says they just follow him. They went to Luluai and waited there for some time before Kifoi received another call and then they drove to Laguna. Kifoi told them to stay in the car. Jeffrey was apprehended inside Laguna and they were apprehended in the vehicle by other officers. 

CONSIDERATION

Demanded payment

28.	I make the following findings having heard and observed the witnesses whilst giving evidence and having regard to their evidence by itself and in the context of the case as a whole, together with logic and common sense, 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. I remind myself that an untruthful witness may be confident and convincing, whilst a conscientious truthful witness may be hesitant and uncertain: see RD Tuna Canners Ltd v Sengi (2022) SC2232 at [35].  

29.	Having heard and observed Tars Sauka I am satisfied beyond reasonable doubt that Jeffery Kifoi demanded payment from him in the sum of K50,000 on several occasions between 24 December 2019 and 6 January 2020. His evidence when taken as a whole was clear and convincing. 

30.	In making this finding I have exercised caution having regard to the fact that Mr Sauka is an educated man, holding a senior position, and that he gave C/Kifoi a total of almost K7000, on three separate occasions, over a period of a week, before reporting the matter to police, in circumstances where C/Kifoi had told him that there was a criminal case pending against him. Ultimately, however, he did report that a demand was being made to IAD, including that it concerned criminal allegations against him, IAD was an appropriate place for such a report to be made, and he did so within two weeks of the initial demand allegedly being made.  

31.	I have also taken into account that there was some inconsistency in his evidence about the amount demanded. As I understand his evidence C/Kifoi initially demanded K60,000, then asked for at least K50,000 on 1 January and then increased it again to K60,000 on 4 January. It has been some time since the alleged events and it appeared to me that this was his recollection as he was giving evidence. For similar reasons I do not regard it as significant that he initially said that he was told nothing about the allegations but later said in chief that he was told that it concerned the misuse of DDA funds. As for the fact that he described being arrested on 24 December when first confronted by C/Kifoi but denied in cross-examination that he was told that he would be arrested when shown the yellow envelope by C/Kifoi, the clear effect of his evidence was that he asked for an arrest warrant or some documentation and was never given any and was never taken to Boroko and formally charged and there is no dispute that he was never given any documentation, taken to Boroko or formally charged. 

32.	Significantly, a key aspect of Mr Sauka’s evidence is corroborated by CI Winuan who heard the demand being made. CI Winuan was an impressive witness. Whilst Mr Sauka was not asked to explain what happened at IAD in any detail I find on CI Winuan’s evidence that he was present on Monday, 6 January 2020 when Mr Sauka received a phone call during which he heard a person ask Sauka to withdraw K60,000 and bring it to him at Laguna that day, K30,000 for the “big boys at Boroko Police Station” and K30,000 for himself and the armed robbery squad at Boroko Police Station. 

33.	In addition, I find that it was in response to that call that CI Winuan conducted a briefing with other officers, including FC Kambae, and mounted an operation that saw both accused arrested later that same day. 

34.	There is furthermore no dispute that at the time C/Kifoi was arrested he was in possession of a Smith and Weston pistol together with a wine bottle and an envelope containing K19,600, the latter of which he had received moments earlier from the complainant. 

35.	There was nothing improper about the operation or the apprehension of the accused. I will return to this below.

36.	It is the case that CI Winuan’s evidence differs in some respects from that of FC Kambae. Winuan was of the view that one of the weapons bearing binoculars was not RPNGC but probably PNGDF issue whilst Kambae was of the view that all were consistent with police issue. It was also CI Winuan’s firm belief that C/Kifoi had been dismissed in 2017 based on information received from another officer within the IAD whilst Kambae’s enquiries as investigating officer revealed that whilst a dismissal notice had been issued it had yet to be served on Kifoi on 6 January 2020. Those inconsistencies are not material and point away from any collusion between them in giving evidence.  

37.	There was evidence from Mr Sauka that another person who identified themselves as Nathan told him at some stage that the person he was dealing with was actually called Kifoi. That does not alter my finding as to Sauka’s credibility. It would only raise further questions about the person’s motives.

38.	Moreover, much of what Mr Sauka says is not in dispute, namely that C/Kifoi did go to Laguna on Christmas Eve 2019, inform Mr Sauka that he was under investigation and required to attend the station for a police interview, take him in to a five-door white vehicle, in which two other men in plain clothes and armed with high powered weapons were seated in the rear, drive to his own house to collect an envelope which he told Mr Sauka contained the complaint or evidence against him, drop Mr Sauka back at Laguna, and receive at least K900 that day (noting that Sauka says it was K900 while Kifoi says it was initially K300 followed by a further K3000 later the same evening), and return to Laguna again on 28 December and 1 January and receive K3000 on each occasion. Those facts alone are consistent with a demand being made by C/Kifoi. 
39.	As for C/Kifoi he was an unimpressive witness. I reject his evidence that he accepted almost K10000 on four separate occasions because he initially felt sorry for Mr Sauka, was scared it was a bribe and was then afraid for his job and did not know what to do.  It is implausible.

40.	C/Kifoi is a police officer of 20 years standing, during which time he had undertaken foot patrol duties, served as a member of a task force and was assigned to assist the Armed Robbery squad at Boroko Police station where he was primarily responsible for first response. He travelled in the company of other officers armed with high powered weapons and body armour, together with a homemade weapon which had been seized from rascals after chasing them down. Throughout his evidence he referred to “his car” “his boys”, and the weapons “he had”.  

41.	Firstly, it is my assessment that C/Kifoi is not a man easily intimidated or subject to direction by anybody. Secondly, by his own admission he knew it was wrong to take the money. Thirdly, he received the money not once but several times and on each occasion it was he who went to Laguna to collect it.

42.	I reject the submission that C/Kifoi was investigating Mr Sauka and it was Mr Sauka who bribed C/Kifoi and then falsely reported that C/Kifoi was making a demand of him to IAD in a clever ploy to derail the investigation.

43.	In general terms, the fact of an investigation does not preclude the possibility of a demand but may provide an opportunity for it. Nor would a bribe by the person being investigated necessarily preclude a demand. The two are not mutually exclusive. Quite the contrary. 

44.	I make it clear, however, that I reject C/Kifoi’s evidence that he was tasked with investigating any alleged misuse of DDA funds by Mr Sauka. I accept the evidence of both CI Winuan and FC Kambae, which evidence is in accordance with common sense and logic, that the Armed Robbery squad does not normally investigate the alleged misuse of large amounts of State monies and further that enquiries failed to produce evidence of such a complaint. In making this finding I have taken into account D1.

45.	Furthermore, even assuming that the matter was lodged with the Armed Robbery Squad, it is implausible that such a serious allegation, by a Member of Parliament, concerning the alleged misuse of millions of Kina of State monies into Mr Sauka’s personal bank account, as contended by C/Kifoi, would be delegated to C/Kifoi. There is no real dispute that he was not a substantive member of the Armed Robbery squad. Nor was he an experienced investigating officer. Even on his own evidence he was deployed to assist Armed Robbery and it appears to me despite his prevarication that that was primarily for the purpose of first response. 

46.	C/Kifoi’s explanation as to why the envelope containing the complaint against Mr Sauka was at his house in the first place and why he then forgot it before apprehending Mr Sauka was clearly contrived and I find that the showing of it to Mr Sauka was calculated to suggest that he had evidence against him. Similarly, C/Kifoi was both evasive and contradictory about whether or not he had sufficient evidence to immediately charge Mr Sauka. 

47.	It does appear on the evidence of FC Kambae that Mr Sauka has been recently charged in relation to events allegedly occurring in October or November 2023 albeit his evidence is hearsay. That does not affect my finding as to Mr Sauka’s credibility that the demand was made by C/Kifoi as alleged.  

48.	There was for various reasons, including the unavailability of the investigating officer based in Madang and the ill-health of defence counsel and then C/Kifoi, some delay between the time Mr Sauka gave evidence and the time that the investigating officer and the defence witnesses gave evidence. Defence counsel submits that both the State and Mr Sauka failed to disclose that he had been charged in relation to the same allegations in June 2024 and before he gave evidence. 

49.	The prosecution has a duty to act fairly, impartially and in a competent manner in accordance with Order 17, Professional Conduct Rules 1989. The Constitution provides that an accused is entitled to a fair hearing (s 37(3)) in accordance with the principles of natural justice (s 59(2)). As recognised by the Criminal Code (s 544) and case law regarding particulars and related matters this requires that the accused must have adequate notice of the case to be made against him. Consistent with the right to a fair trial it has also long been recognised that the prosecution has an ongoing obligation to disclose material reasonably considered capable of undermining the prosecution's case or assisting the defence: per Lord Taylor in R v Keane [1994] 1 WLR 746. This includes material which may cast doubt on the credibility of a witness the prosecution chooses to call, for instance a relevant prior conviction or the fact that a witness has been charged with a relevant offence: see the discussion in R v Brown [1997] UKHL J0724-4. These authorities whilst not binding are persuasive and consistent with the general principles of fair trial in this jurisdiction which are well established. 

50.	I accept FC Kambae’s evidence that he only became aware of the charge against Mr Sauka the day before he came to testify. Both he and the State should have clarified if, when and on what basis Mr Sauka had been charged but it does not appear to me that there was any deliberate failure on the part of the State to disclose that Mr Sauka had recently been charged and the evidence was led from by FC Kambae during his evidence in chief and over objection by the defence. 

51.	I regard the information and summary of facts produced by C/Kifoi, D1, with some caution. It does not bear any seal or stamp, there is no evidence as to its authenticity, the information are apparently laid by a member of the “CID Arm (sic) Robbery Squad”, and the timing and circumstances in which C/Kifoi says he obtained it strain credulity. But taking it together with FC Kambae’s evidence, Mr Sauka’s evidence and the obligations of the State, even accepting that Mr Sauka was recently charged with forging and uttering DDA resolutions in relation to the purchase of a vehicle registered in the name of the DDA those allegations concern events in October 2023 and long after anything C/Kifoi could have been investigating. 

52.	Furthermore, it appears to me that defence counsel was aware of the 2023 allegations at the time he cross-examined Mr Sauka and that despite his best efforts the clear effect of Mr Sauka’s evidence when taken as a whole is that he was not aware in 2019 of any allegations against him. Mr Sauka openly admitted that there was a recent complaint about the purchase of a DDA vehicle. He maintained that whilst he was aware of the recent allegation concerning the vehicle he was not aware of any allegations concerning the misuse of DDA funds generally or concerning events in or about 2019 and he has never been charged in relation to allegations from 2019. I accept that evidence. I also accept his evidence that he was not trying to derail any investigation.    

53.	I reject the submission that the State failed to exclude the possibility that C/Kifoi did not demand the monies because it failed to produce his phone records. I accept FC Kambae’s explanation as to why he did not pursue the phone records. There was no deliberate failure on his part or that of the State. For obvious reasons C/Kifoi was not obliged to produce the records. The records are not before me but most importantly their absence does not raise any doubt in my mind as to the fact that C/Kifoi demanded payment for the reasons outlined above. 

54.	Finally, the totality of the evidence excludes the possibility that it was anyone other than C/Kifoi who made the demand, on several occasions. 

Unlawfully threatened or intimidated person 

55.	I am satisfied beyond reasonable doubt that Jefferey Kifoi unlawfully threatened or intimidated a person, namely Tars Sauka. 

56.	A threat is conduct that states or expresses an intention to inflict harm or put at risk of harm. A threat may take many forms. It need not be explicit. It need not involve physical violence. A person may make an unlawful threat even though they have no ability to carry it out, for example, by putting an unloaded gun to another person’s head. The question for the purpose of s. 390A of the Criminal Code is not whether the accused intended to carry out the threat but whether he intended to obtain compliance with the demand by the threat, and in order to extort payment: Apkas at [60], [63] to [66].

57.	The clear threat in this case was that Mr Sauka would be charged with a criminal offence or offences if he did not comply with the demand for payment. The threat was made expressly on several occasions by C/Kifoi to Mr Sauka, including in person, and the capacity of C/Kifoi to give effect to the threat was implied in circumstances where C/Kifoi’s conduct and words were calculated to suggest that he had evidence against him, knew where to find him and could apprehend him.   

58.	For any person to threaten to charge a person with a criminal offence if they do not comply with a demand is unlawful. The fact that C/Kifoi was a serving police officer only makes his conduct all the more serious.

Threat made to obtain compliance with the demand

59.	It is also very clear and I find beyond reasonable doubt that the unlawful threat was made by C/Kifoi in order to obtain compliance with the demand.  That was obvious on the face of the demand and the circumstances in which it was made.

With intent to extort payment 

60.	Finally, I am satisfied beyond reasonable doubt that at the time C/Kifoi demanded payment and threatened Mr Sauka in order to obtain compliance with the demand, he did so “with intent to extort payment” from Tars Sauka, that is “to obtain by force, threats or other unfair means”: State v Parakua [2011] PGNC 5; N4199; applied State v Apkas (2019) N7884.

Entrapment

61.	At one stage defence counsel suggested that the conduct of police in apprehending the accused amounted to entrapment. No reference was made to authorities and the submission was abandoned on verdict.

62.	There is no defence of entrapment in this jurisdiction or in common law jurisdictions like England, Australia or Canada albeit these countries differ somewhat as to the nature of the appropriate remedy: see the summary in R v Loosely [2001] UKHL 53 at [6].

63.	I am able to find only one case directly on entrapment in this jurisdiction. In State v Hore [1981] PNGLR 536 Kidu CJ held that a trial judge has no discretion to refuse to admit relevant admissible evidence merely because it has been obtained by improper or unfair means, applying R v Sang [1979] 1 All ER 1222. Since then the House of Lords in R v Loosely [2001] UKHL 53 has held that the courts in England have the power in a case of entrapment to permanently stay the prosecution for being an abuse of process or exclude evidence. Of the two remedies the grant of a stay, rather than the exclusion of evidence should normally be regarded as the appropriate response: per Lord Nicholls at [16], where “the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute” having regard to a number of considerations including the nature and seriousness of the offence, the reasons for the particular operation, the nature and extent of police participation in the offence, and the accused’s circumstances including their vulnerability: at [25] et seq. Essentially, the question is whether the accused was lured or enticed into committing an offence by enforcement officers which he would not otherwise have committed or whether he has merely been given the opportunity to do so. See also Lord Hoffman at [37] and [47] to [71].  A similar approach is taken in Canada: see [6], ibid.

64.	In Ridgeway v R [1995] HCA 66 the High Court of Australia held that the appropriate remedy in that jurisdiction is not one of stay but rather the exercise of discretion to exclude real evidence on public policy grounds where its commission has been induced by unlawful, or possibly improper, conduct on the part of law enforcement officers. 

65.	These cases whilst not binding are of persuasive value, particularly given recent decisions regarding permanent stay and exclusion of real evidence for other reasons: see Wartoto v The State (2015) SC1411; Agen v The State (2024) SC2623 at [40] to [42]; State v Paraka (Decision on Motions to Quash/Permanently Stay Indictment (No 2) (2021) N8807 at [13] to [45] and [213] to [235]; State v Kingsley (2023) N10131 at [20] to [33]; and State v Paraka (Decision on Admission of Bank Records) (2022) N9568 at [210] to [217].

66.	It is not necessary to consider the principles in any detail for present purposes. There was no entrapment of C/Kifoi here by police. He was not lured or enticed into committing an offence he would not otherwise have committed. This was not even a case where Kifoi was already disposed to commit such a crime should the opportunity arise (see Looseley at [6]). C/Kifoi had already committed the offence, which was continuing, the first time he made the demand on 24 December and he continued to commit the offence until he was apprehended. All the police did was put in place an operation to catch the person suspected of committing the crime. 

67.	Moreover, it was not C/Kifoi’s case that he was lured into committing the offence by police acting through Mr Sauka or otherwise. He denied committing the offence. His evidence was that he never threatened or demanded anything from Mr Sauka and Mr Sauka set him up to look like he did. For the reasons outlined above I have found otherwise beyond reasonable doubt.

Conclusion  

68.	In conclusion, I am satisfied beyond reasonable doubt that C/Kifoi did demand payment in the sum of K50,000 and in order to obtain compliance with that demand unlawfully threatened and intimidated Tars Sauka, contrary to s 390A(a)(b)(iii) Criminal Code.  

69.	The evidence established that C/Kifoi demanded K60,000 but the amount demanded is not an essential element of the offence.

HENRY WANAPI

70.	As for Henry Wanapi, he was not an impressive witness. He almost placed himself with C/Kifoi on 24 December 2019 before clarifying his evidence. Similarly, C/Kifoi initially said that he and two of his boys, Dermot Vakinap and Wanapi, went with him to Laguna on that date before retracting that statement. Ultimately, the case against Wanapi turns on the identification evidence of Tars Saula, which was not strong. 

71.	I appreciate that Mr Sauka was with all three persons for some time on 24 December but for the most part the two other persons were in the rear of the vehicle. Mr Sauka did not see anyone else on 28 December or 1 January. His opportunity to see RC Wanapi at the time of his apprehension on 6 January was limited. No identification parade was conducted and whilst Mr Sauka identified RC Wanapi in the court room it has now been a number of years. In all the circumstances I cannot be satisfied beyond reasonable doubt that Wanapi was present on 24 December 2019 when the initial demand was made or that he subsequently became aware of the demand and aided or encouraged C/Kifoi: John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153; Jimmy Ono v The State (2002) SC698 applied. Accordingly, he must be acquitted. 

Verdicts accordingly. 
___________________________________________________________
Lawyer for the State: Public Prosecutor		
Lawyers for the accused: Emmanuel Lawyers