Regina v Orodani [1996] SBHC 69; HC-CRC 039 of 1996 (20 November 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 39 of 1996

ter">REGINA

-v- FRANCIS ORODANI

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Before: Awich, ich, J

Hearing: 25 October 1996 - Judgment: 20 November 1996

Counsel: F Mwanesalua for the Crown; P Tegavor the accused

JUDGMENT

AWICH, J.:

Mr Francis Orodani was charged in an information in which the learned Director of Public Prosecution, Mr F Mwanesalua enumerated three counts, The first was a count of corrupt practice, under section 367(a) of the Penal Code. The second was Misconduct in office under section 8(1) of the Leadership Code (Further Provisions) Act, 1979. The third was Allowing integrity to be called in question contrary to section 94(1)(c) of the Constitution as read with section 24(1) of the Leadership Code (Further Provisions) Act. The third count was in fact misnumbered 4 so it had to be corrected to read Count 3. I allowed a challenge by learned counsel Mr Tegavota who represented the accused, to counts 2 and 3, on the grounds that the offences alleged were in fact one offence, because all the conducts or acts said to be prohibited under s:94(1) of the Constitution are described in s:94(4) as offence of misconduct in office. So the prohibited misconduct in s:94(1)(c) described as allowing integrity to be called in question is in fact, offence of misconduct in office. Charges in counts 2 and 3 were both of misconduct in office. And as they both particularised the same transaction, the third really repeated the second. I ordered that charges against the accused would have to be those in count 1 and only one from count 2 or 3. I proceeded to put counts 1 and 2 to accused. The Learned Director of Public Prosecution objected; he said he as DPP had the right to decide which charge to retain. Apart from that reason of right of the DPP, no reason touching on the substance was advanced. As the court had ruled that the two offences in Counts 2 and 3 were the same, there was no difficulty in allowing the DPP his choice, and court proceeded with Counts 1 and 3, the latter being the choice of the DPP.

Learned counsel, Mr Tegavota also raised the objection that to charge under s:94(1) (c) of the Constitution is not correct because that section of the Constitution does not create offence. He submitted that the provisions in S:94, like in any others in the Constitution, are enabling provisions only, not intended to deal with details like creating offences. The DPP's answer was that because s:94 (4) provides that failures to live up to any of the responsibilities (a), (b), (c) and (d) in s:94 (1) renders a person, "guilty of misconduct in office", offences have been created by the provisions of the Constitution. He attached significance to the word "guilty." The significance of the point Mr Tegavota made is that if the Constitution is meant only to enable Parliament so that under s:95 (c) (d) and (h), an Act is enacted, which we now know to be Leadership Code (Further Provisions) Act, 1979, then it is that Act which may be regarded as spelling out failure of responsibilities in s:94 of the Constitution as constituting offences, and thereby creating the offences. Such an Act would also enumerate in sufficient details what conducts are to be taken as amounting to offences. The Act in fact has not done so. Instead it went on to provide for penalty only, by the provisions in s:24. The logical end of Mr Tegavota's argument is that penalty has been provided for, but offences have not, so nobody can be charged when the offences are uncertain. The DPP of course answered, that offences were provided for in the Constitution, but punished for, only in the Leadership Code (Further Provisions) Act at s:24. That seems a very unlike manner of dealing with offence, but one must also bear in mind that in England, for instance, the Constitution as well as a large number of Common Law offences are not written or enacted Law. Treason for instance would be known in the Constitution of England and indeed as an offence in England. I express no view at this stage. Counsel have not sufficiently submitted on the issue. No backing principles were identified and no case laws were made available. I considered recalling counsel to readdress court on the issue, but I am aware that several occasions have arisen in cases before me to consider the point, so I need not do it now. For this case it is not necessary that I decide the point of law. I shall certainly do so with or without further material on the law from counsel.

In this case much of the evidence presented by the prosecution was not contested. The accused admits that he has been a leader in 1994 and is still a leader within the meaning of the Constitution. He admits that he resigned his post as a Minister of the Crown on 5/11/94 in a government headed by then Prime Minister Billy Hilly. He was subsequently appointed Minister of the Crown in the government that took over, led by Prime Minister Solomon Mamaloni. He admits that one Bodo Dettke hired a vehicle No.A1561 from Budget Rent a Car for his (the accused's) use. He admits having been to the offices of Goh and Partners, although he says he was there to see someone in connection with his official business. He does not make bond about his name being on a list of members of Parliament and that he would have supported the candidature of Solomon Mamaloni for Prime Ministership.

The prosecution submitted that because Mr Orodani resigned from one government and was appointed Minister in another once the first government collapsed at the threat of vote of no confidence, and because businessmen like Dettke did not like the policy of the government that collapsed, regarding logging and tax, and because Mr Orodani was seen at Goh's office, and accepted use of car hired by Mr Dettke, and because his name was on a list to show his support for the then new Prime Minister, Mr Orodani must be taken to have accepted the use of the hired car as a bribe, and the court must find that he was induced to resign from his post as Minister of the Crown thereby forebearing to perform his duty.

Mr Orodani testified and called Bodo Dettke as witness. He and Dettke said that the car was hired by Mr Dettke so that Orodani could use it in his effort to arrange meetings with customary land rightholders so that Mr Dettke would obtain consent of the people and obtain licence. It was Mr Orodani's case that he had done that work for Mr Dettke before. Mr Dettke stated additional reasons that apart from Mr Orodani having done the work before, Mr Orodani was the member of Parliament for his area, and he should be approached about licence to log and Orodani's father and uncle were major landowners.

It is certainly not an offence for a member of parliament to chose to change his political support for parties or for candidates for the post of Prime Minister. Much emphasis was placed on a computer print out list seen circulating in the offices of Goh and Partners. The list suggested that Mr Orodani might have been a potential voter for Mr Mamaloni other than for a candidate in the government that he had resigned from. I do not see any evidential significance in that, even if the position as shown by the list were true. The fact that it was seen in Goh and Partners' office does not prove that all on the list had been bribed or were to be bribed. There is nothing in it or taken together with it that would suggest that Mr Orodani's support for the candidate that had 29 supporters, was based on bribe. The other rather remote fact adduced is that Mr Orodani visited Gab's office. But the allegation is not that Goh hired the car; it was that Dettke hired the car. There was no evidence whatsoever linking Dettke with Goh. There was some evidence that Goh tried to bribe Mr Ezekiel Alebua who was a Minister that time. Even if that were true, it would not be evidence about bribing Mr Orodani. The DPP urged the court to find that there was no good reason, especially developmental reasons that caused Orodani to resign so it may be taken that it was for the inducement offered by Dettke. It would not be proper for court to decide what is good reason in politics. A careful reading of Mr Orodani's letter of resignation dated 5/11/94 suggests that his view was that instability in the government was not good for development. He said he blamed the government for it. I think whether a Minister's reason is good or not should not be the subject of courts view, it should be left to electorate. Suppose he resigned because he was ambitious he had struck bargain to be a Minister in what appeared a possible more stable government, should court not leave that to politics and electorate, is it an offence? In fact Mr Orodani's evidence suggests that it might have been his calculation to change sides, He said he considered the fact that they were a minority government.

It is on record that Mr Dettke did not like tax under the government that collapsed and that Mr Orodani resigned from that government. Dettke hired a car for him. Is that enough to show corruption? I note that the car was let out on 6/10/94, that would be after the date Mr Orodani had resigned on 5/11/94. Even if the explanation given by Orodani and Dettke were to be untrue, is it the only probable explanation that the hire was a bribe? What about if the car was for use in organising landowners meeting, and to keep Mr Orodani supporting Dettke's pursuit of logging business or to get him so involved that he would not oppose. It is to be remembered that Mr Orodani is the member of parliament for the area, his views or opposition could be very effective. Is the reason given by the Prosecution the only probable reason? Our criminal law requires so.

It is my decision that there has not been convincing proof, certainly not to the standard required in criminal cases, to enable the court to convict on count one of Corrupt Practice contrary to section 367 (a) of the Penal Code. Verdict of not guilty is entered. Mr Orodani is acquitted on that count.

Count 3, of Allowing Integrity to be called into question would fail had I found that it was properly charged. The evidence to support it is the same as the evidence for count 1. I have already found that the evidence is insufficient. Verdict of not guilty would be entered and Mr Orodani would be acquitted. In the end the court must discharge Mr Orodani. What we have in evidence is merely suspicion and not a strong one either.

Mr Orodani was charged with corrupt practice. He was alleged to have received inducement of the use of hired car. Mr Bodo Dettke was alleged to have offered that inducement; he paid for the car and allowed Mr Orodani to use it. Mr Dettke was not called as witness by the Prosecution, neither was he charged for the same offence. I suppose the DPP might say that he has the authority and discretion to decide who he charges, which also means who he does not charge, Mr Orodani must, however, be wondering why the authority has been exercised selectively in his case so that he, the alleged recipient of inducement was alone charged, the alleged instigator, the would be prime mover, was not.

Delivered this this 20th day of November 1996

At the High Court, Honiara

ter">Sam Lungole-Awich
Judge