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Japele v State [2023] PGSC 100; SC2454 (1 September 2023)

SC2454


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCRA NO. 49 OF 2022


STANLEY JAPELE
Appellant


-V-


THE STATE
Respondent


Waigani: Kariko J, Kassman J & Miviri J
2023: 28th March, 26th May & 1st September


CRIMINAL LAW – appeal against conviction and sentence – official corruption, 87(1)(a)(i) & (ii) Criminal Code – payment of money to policemen to release suspect from police custody – proof of – elements of the offence – meaning of “duty”


CRIMINAL LAW – evidence –credibility of witnesses – accomplice evidence – who is an accomplice – uncorroborated evidence of accomplices - caution


The appellant was a policeman who was convicted on a charge of official corruption, and he was sentenced to five years imprisonment and ordered to pay restitution. In his appeal against conviction, he argued that the evidence did not prove the alleged offence against him. In his appeal against sentence, he claimed that the sentence was manifestly excessive.


Held:


(1) The term “duty” in s 87(1)(a) refers to the specified or designated duties of the particular office or position held by a public servant or public officer: The State v Peter Kirivi [1987] PNGLR 489 and The State v Mollo [1988] PNGLR 49 referred to.

(2) An accomplice is a person privy to the criminal intent of the accused: The State v Nataemo Wanu [1977] PNGLR 152 and The State v Amoko-Amoko [1981] PNGLR 373.
(3) Failure of trial judge to warn itself of the danger of convicting on the uncorroborated evidence of an accomplice renders the conviction unsafe and unsatisfactory: Saka v The State (2021) N9250.

(4) The conviction was unsafe and unsatisfactory, and it entailed errors on points of law, resulting in a miscarriage of justice.

(5) Appeal against conviction upheld.

Cases Cited:


Papua New Guinean Cases
Emos v The State (2017) SC1658
Hagena v The State (2017) SC1659
Havila Kavo v The State (2015) SC1450
Japele v The State (2022) N9552
Private Nebare Dege v The State (2009) SC1308
Saka v The State (2021) N9250
State v Gamato (2021) N9250
State v Nataemo Wanu [1977] PNGLR 152
State v Robert Konny (2012) N4691
The State v Amoko-Amoko [1981] PNGLR 373
The State v Dau (2022) N9508
The State v Doreen Tatut (2021) N9023
The State v Francis Laumadava [1994] PNGLR 291
The State v Gigina (2018) N7378
The State v Hetinu (2022) N9590
The State v Kara (2018) N7360
The State v Mako (2006) SC889
The State v Mollo [1988] PNGLR 49
The State v Peter Kirivi [1987] PNGLR 489


Overseas Cases:
McNee v Kay [1953] VicLawRp 2; [1953] V.L.R. 520
R v David [1931] QWN 2; 25 QJPR 15


Legislation:
Criminal Code
Criminal Practice Rules 2022
Supreme Court Act


Counsel:
Mr F Kuvi, for the Appellant
Mr R Luman, for the Respondent


APPEAL


This is an appeal against conviction and sentence on a charge of official corruption.


1st September 2023


  1. BY THE COURT: The appellant Stanley Japele was convicted on 4 March 2022 on one count of official corruption, an offence under section 87(1)(a) of the Criminal Code. It was alleged that as a policeman he asked for and received money to release a suspect from police custody. He was sentenced on 15 July 2022 to five years imprisonment in hard labour and further ordered to pay restitution of K5,000 to one Onne Bari. See Japele v The State (2022) N9552.
  2. Aggrieved by the decisions, the appellant filed his Notice of Appeal from conviction on 19 August 2022, and his Notice of Appeal from sentence on 18 October 2022 after being granted leave to appeal.
  3. This is the Court’s decision on the appeals.

BACKGROUND


  1. The appellant was a policeman having joined the Police Force in 1996. At the time of the alleged offence, he held the rank of Sergeant and was attached to the Major Crimes Division in Police HQ in Konedobu, NCD, but he was then assisting the Boroko Criminal Investigation Division (CID) with the investigations of some major cases.
  2. Other persons who featured in the circumstances leading to the appellant being criminally charged were:
  3. Bani, Oata, Xu and S/Sgt Apolos were called as State witnesses in the trial.
  4. A brief outline of the prosecution case showing the alleged involvement of the above-named persons in the charged crime is as follows.

TRIAL


  1. The evidence presented at the trial is described by the learned trial judge in his judgment at [5] to [8], with our emphasis added:
    1. 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.
    2. 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 13th 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 20th 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 21st 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 28th 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 20th 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 21st 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 20th 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 28th 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.

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

DEFENCE CASE

  1. 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.
  2. On this evidence, the trial judge found that the elements of the charge (relevant to this case) proven beyond a reasonable doubt and his Honour convicted the appellant accordingly.

LAW ON APPEAL FROM CONVICTION


  1. In relation to an appeal from a conviction, s 23 (1) & (2) of the Supreme Court Act Ch. 37 provides:
    1. Determination of appeals in ordinary cases.
      • (1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgement of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

(2) (Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
(3) ...

(4) ...
  1. The appellate court will not set aside a conviction unless it is shown by the appellant and the Court is satisfied that any one or more of the three (3) conditions stipulated in s 23(1) have been met. In Havila Kavo v The State (2015) SC1450, the Court affirmed:

To succeed on an appeal against conviction an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115).


GROUNDS OF APPEAL FROM CONVICTION


  1. The appellant raised five grounds of appeal from conviction which are:
    1. The trial judge erred in convicting the appellant for Official Corruption, on account of the fact that the appellants conduct did not constitute an offence within the strict meaning of Section 87 of the Criminal Code.
    2. The trial erred in law in finding that the statement of law ‘charged with any duty by virtue of employment was not restrictive, and thus may be construed to include any conduct that may be generally implied as part of the duties of the appellant as a policeman.
    3. The trial judge erred in accepting the evidence of the witness Onne Bani, notwithstanding evidence that cast doubt on the credibility of this witness, particularly, in relation to his bribing of a police officer.
    4. The trial judge erred in both fact and law when he accepted the evidence of Onne Bani, without considering other extenuating circumstances of the case, which ought to have cast on the credibility of the witness.
    5. The trial judge erred in both fact and law when he failed to take into consideration evidence tendered on the part of the appellant and instead held that the appellant remained silent; notwithstanding, that the appellant had elected to rely on his statement given to the District Court, pursuant to Section 96 of the District Courts Act, which was tendered as part of the appellants case pursuant to Section 97 of the same Act.
  2. Grounds 1 and 2 can be discussed together as they allege that the trial judge erred in his interpretation and application of s 87(1), and in particular the reference to the word “duty” found in the provision.
  3. Grounds 3 and 4 are also inter-related, as they challenge the credibility of Bani as a witness whose evidence the trial judge largely relied upon to find the charge against the appellant proven.
  4. In Ground 5, the appellant contends the trial judge erred in not considering his s 96 statement tendered into evidence.

GROUNDS 1 & 2 (APPEAL FROM CONVICTION)


  1. The appellant was charged under s 87(1)(a) of the Criminal Code which provides:
    1. OFFICIAL CORRUPTION.

(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.


(Emphasis added)


  1. We endorse the statement by Berrigan J in State v Gamato (2021) N9250 that the offence under s 87(1)(a) of the Criminal Code is established when the State proves 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 anything 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.


  1. In this appeal, Mr Kuvi of counsel for the appellant argued that the term “duty” referred to in s 87 of the Criminal Code means a specified duty which an accused is assigned to perform in his employment. The argument by counsel was that if Bani paid the appellant monies to release Cui on police bail, then it was required for the prosecution to prove that the appellant’s duties as a policeman included consideration of whether or not to grant police bail to a detainee. It was submitted that pursuant to s 5 of the Bail Act 1977, this duty is tasked to the officer-in-charge of the police station where the detainee is kept and a commissioned officer of the Police Force, and the appellant did not hold either of these offices or positions.
  2. The indictment stated that the relevant duty was “the duty of a police officer” which is a very general description and covers many and varied duties as the trial judge noted in discussing at some length the general role of police officers at [32] to [46] of his Honour’s judgment.
  3. Interestingly, his Honour acknowledged there are specialized areas of police operations, but he did not consider these relevant to the case.
  4. With respect, we hold a contrary view. We are of the opinion that s 87(1)(a) was enacted to cover corrupt practice of a public servant or public officer, including circumstances where the public servant or public officer corruptly asks for or receives property or a benefit:

being the duties that he is specifically tasked with by virtue of his employment and the office or position he holds.


  1. While we acknowledge that as a policeman the appellant was charged with certain duties which apply to all officers of the police force, he was a detective employed at Police HQ but assisting the Boroko CID at the time. As a detective, his specified duties would have included receiving complaints of alleged crimes, investigating them (including interviewing suspects and witnesses and collecting physical evidence), arresting suspects, and preparing the cases for prosecution. Clearly, it was not the appellant’s duty to consider bail for suspects such as Cui, because he was not a police bail authority stipulated in s 5 of the Bail Act 1977.
  2. The indictment stated that the appellant, a police Sergeant “charged by virtue of such employment with the duty of a police officer” corruptly asked and received K50,000 cash “on account of him releasing one Aaron Cui a detainee from police cells, in the discharge of the duties as a Police Officer”.
  3. Three points we raise about the indictment.
  4. First, the charge suggested that the payment was for having released the detainee. The plain and ordinary meaning of “on account of” means “because of”. A proper reading of the indictment then is the payment was made because of the appellant having released Cui from the cells. The facts in the trial obviously did not support this allegation. Cui was released from the cells after being allowed bail by the National Court, and the appellant played no part in that.
  5. Second, the indictment did not mention bail, although the prosecution case alleged the appellant was paid K50,000 to arrange for Cui to be released on bail. The learned trial judge determined that the relevant duty was a general duty of police officers “to facilitate bail” being considered by the appropriate police officers or the court; [28] of the judgment. With respect, we are unable to agree that it was the duty of the appellant “to facilitate bail” which his Honour explained was to get a commissioned officer or the Metropolitan Superintendent to consider bail. It cannot be a duty of all police officers “to facilitate bail. For example, there are police officers attached to the National Judicial Staff Services who provide security services for the judges and are based at the Waigani court house, and have been so employed for many years. Obviously, they do not have a duty “to facilitate bail”. It is also stressed that the prosecution neither alleged nor proved that this is a duty the appellant was charged with.
  6. Third, the statement of offence for a charge under s 87(1)(a) as set out in Schedule 1 of the Criminal Practice Rules 2022 requires the indictment to state the duty, which in our view means to specify the duty. In the present case, the prosecution was required to state the specific or particular duty of the appellant as a detective dealing with major crimes at Boroko Police Station, or specify “the duty of a police officer”.
  7. Consideration of bail is part of the criminal process that occurs after arrest and detention of a suspect. The police officer who is immediately concerned with this aspect is the arresting officer. If the offence charged is one where police bail may be granted, the arresting office will refer the matter to the officer-in-charge of the police station or a commissioned officer. Otherwise, the case is arranged to go before the appropriate court. There was no evidence that the appellant was involved in the investigation of Cui as suspect or indeed his arrest and detention.
  8. It is apparent from the evidence that the facilitating of bail was to happen in this fashion: Bani would bribe the appellant and F/Const Bari with K50,000 so that they in turn would pay off the responsible bail authority to release Cui.
  9. Xu testified that while at the Boroko Police Station, he and Bani wanted to bail out Cui “but the police cell guard told us, his case is under CCA – actually I don’t know what’s the meaning CCA. Only – he said only police commander can bail him out.” After this Bani made some phone calls before telling Xu he could arrange police bail but needed K50,000, which Xu then borrowed from a friend and provided to Bani. According to Bani, K15,000 was “additional just to see the police bosses so they can allow the bail -police bail.” On this evidence, we consider that a more appropriate charge to have laid was a conspiracy to commit a crime, contrary to s 515 of the Criminal Code, and this charge could have been laid against the appellant, F/Const Bari, Bani and Xu. The crime would have been the crime under s.87(1)(a), namely to bribe the police bail authority to grant Cui bail. It seems to us that the State may have indicted the appellant on the wrong charge.
  10. As we noted earlier, it is our interpretation that the terms “duty” and “duties” mentioned in s 87(1)(a) refer to specified duty or duties a public servant or public officer is assigned or tasked with in his employment in the office or position he holds.
  11. In the case of The State v Peter Kirivi [1987] PNGLR 489 Kidu CJ relied on R v David [1931] QWN 2; 25 QJPR 15 to interpret s 87. His Honour concluded that a person charged under s 87 must be charged with using “his particular office” for gain. In that case the accused was a requisition officer responsible for issuing purchase orders or IILPOCs but the allegations against him did not involve the use of his office or position. He was accordingly acquitted. A similar situation arose in The State v Mollo [1988] PNGLR 49 where the accused was a Major in the Defence Force holding the position of Officer Commanding G E Workshop at Murray Barracks. He was the Acting Chairman of Defence Savings and Loans Society Ltd when he arranged for the Society to purchase a property from one Mollo, who then paid some monies to the accused. Kidu CJ followed his reasoning in The State v Peter Kirivi (supra) stating that the negotiations for the purchase of the house had nothing to do with the office or position the accused held in the public service, being Officer Commanding G E Workshop with the Defence Force.
  12. The facts in the following cases concerning convictions under s 87(1)(a) also support our view:
  13. It follows from the above discussion that we find the learned trial judge erred in fact and law in convicting the appellant of the crime under s 87(1)(a) of the Criminal Code.
  14. While this conclusion is sufficient for us to uphold the appeal against conviction, we feel that for completeness we should address the other grounds.

GROUNDS 3 & 4 (APPEAL FROM CONVICTION)


  1. In grounds 3 and 4 of the appeal from conviction, the appellant effectively asserted that the learned trial judge wrongly relied on the evidence of Bani, the main prosecution witness, to return the guilty verdict.
  2. The submission was based on the claim that the credibility of the witness was questionable and unreliable given that he confessed to two acts of bribing police officers in relation to one criminal suspect, Aaron Cui, a personal friend of his. First, the bribe of K100,000 offered to S/Sgt Apolos on 21 May 2018, and then the bribe of K50,000 given to the appellant and F/Const Bari on 22 May 2018.
  3. We consider grounds 3 and 4 fairly raise the issue of accomplice evidence, notwithstanding the point not having been specifically pleaded in the grounds.
  4. An accomplice is a person privy to the criminal intent of the accused: The State v Nataemo Wanu [1977] PNGLR 152, Frost CJ; The State v Amoko-Amoko [1981] PNGLR 373, Pratt J.
  5. The State cited the headnote in The State v Amoko-Amoko (supra) which states that an accomplice is a person who could be charged in the same indictment with the principal offender, to argue that because Bani could not be charged with the appellant in the same indictment, he could not be considered an accomplice. With respect, that is a misconceived submission.
  6. The headnote refers to McNee v Kay [1953] VicLawRp 2; [1953] V.L.R. 520 which was applied in The State v Nataemo Wanu (supra). Pratt, J endorsed the views of Frost, CJ in Nataemo Wanu which applied McNee v Kay and adopted the statement of Sholl, J that an accomplice must be a person privy to the criminal intent of the accused, and that he is a person “who is chargeable, in relation to the same events as those founding the charge against the accused, with an offence (whether the same offence or not)”.
  7. While Bani could not have been charged with the appellant in the same indictment, he could have been charged separately on a charge under s 87(1)(b) of the Criminal Code for corruptly giving the K50,000 to the appellant and F/Const Bari, an offence relating to the same events as those founding the charge against the appellant. Because Xu knew the purpose of the K50,000 requested by Bani, he could have been similarly indicted.
  8. 43. our view, both Bani and Xu were accomplices. In this regard we also refer to our earlier remarks in [30] above.
  9. It is well settled that where evidence is given by an accomplice, the trial judge should warn himself that it is dangerous to convict on the uncorroborated evidence of an accomplice. If after administering the caution, the trial judge finds corroboration of the accomplice evidence, he may act on the accomplice evidence: The State v Nataemo Wanu (supra), The State v Amoko-Amoko (supra); The State v Francis Laumadava [1994] PNGLR 291; Private Nebare Dege v The State (2009) SC1308; Emos v The State (2017) SC1658; Hagena v The State (2017) SC1659.
  10. This caution is administered given the risk that an accomplice might fabricate evidence to get even with the accused, or exonerate himself from any criminal liability, minimize his liability, or shift blame to the accused. The risk is more so where the accomplice is given immunity to testify against the accused.
  11. In the present case, the trial judge did not make any finding whether Bani or Xu were accomplices. We note that his Honour was not helped by counsel who did not identify accomplice evidence as an issue. But clearly both witnesses Bani and Xu were accomplices. Furthermore, criminal charges against Bani were withdrawn so that he could testify against the appellant, yet no evidence was produced to show the he was offered proper immunity. The trial judge was plainly obligated to administer the warning but failed to do so, and as the Supreme Court observed in Saka v The State (supra):

Such a failure should, in our respectful opinion, render the conviction of the Appellant a nullity.


  1. While the trial judge concluded that Xu corroborated Bani’s evidence, we, with respect, find that any corroboration only extended to the evidence that he gave Bani K50,000 after the latter requested for the money to arrange for police bail. Xu’s evidence did not disclose that he knew the money was to be paid to the appellant or that the appellant was in fact paid the money. In any case, Xu was himself an accomplice.
  2. Aside from the failure to administer the warning, we note that the credibility of all State witnesses was dubious and their evidence questionable for these reasons:
  3. By their own evidence, all witnesses were complicit in acts of corruption which in our view amounted to at least conspiracies to commit a crime. Only one of them (Bani) was charged with an offence (regarding the K100,000 payment) but that charge was withdrawn on the instructions of S/Sgt Apolos, who was himself implicated in respect to that charge.
  4. In the result, we conclude that the conviction of the appellant was unsafe and unsatisfactory.

GROUNDS 5 (APPEAL FROM CONVICTION)


  1. There is no merit in the final ground of the appeal from conviction that alleges the learned trial judge did not consider the appellant’s s 96 statement.
  2. At [8] of his judgement, his Honour stated:

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.


  1. Then at [62] of the judgement, his Honour concluded:


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.


  1. While his Honour referred to a statement to the police in the above passage, we understand his Honour was referring to the s 96 statement.

CONCLUSION


  1. For the reasons given in the foregoing, we uphold the appeal from conviction. It was unsafe and unsatisfactory, and involved errors on points of law, resulting in a miscarriage of justice.
  2. In the circumstances, it is not necessary for us to decide the appeal against sentence.

ORDER


57. The Court orders that:


  1. The appeal against conviction is upheld.
  2. The conviction and the sentence imposed on the appellant are set aside.
  3. The appellant shall be discharged from custody forthwith.

________________________________________________________________
Francis Kuvi & Associates: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent


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