The charges against the accused
are stated as I quote here:
<
Count 1:
&nbs &nbbsp; &nsp;
;
Use of Office for personal
benefit, contrary to section 8 (1) of the Leadership Code (Further
Provisions) Act.
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Particulars of Offence
OLIVER ZAPO,
on 4 October 1994, in Honiara, being a member of parliament and person to
whom Section 93 of the Constitution applies,
misconducted himself when he
accepted on behalf of himself from ROBERT GOH through GOH and PARTNERS a
benefit, to wit,
the use of hired car Reg. No.A2610 by reason of his
official position.
Count 2:
nbsp; &nbbp;&nStp; ment of Offencffence
c"MsoN" style="yle="margin-left: eft: 108.0108.0pt; mpt; margin-top: 1; margin-bottom: 1">
Acceptance of be, contrary
to section 14 (1) (c) of the Leadership Coip Code (Further Provisions) Act.
Parars of Offence
OLIVER ZAPO,
between 3 and 5 October 1994, in Honiara, being a leader, misconducted
himself when he accepted a benefit or advantage,
to wit, the use of hired
car Reg. No.A2610 from ROBBERT GOH through GOH and PARTNERS, as such benefit
or advantage was
not a memento of a ceremony or social occasion attended by
the said OLIVER ZAPO.
&nbs; &nbbp;&nnbp;&&nbp;; Statemeatement of Offence
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.
Parars of Offence
OLIVER ZAPO,
on 4 October 1994, in Honiara, being a member of parliament and person to
whom Section 93 of the Constitution applies,
misconducted himself when he
accepted the use of car Reg. No. A2610 from ROBERT GOH and PARTNERS.
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Accused tesd. His defence
as I gather from his testimony is that he changed his political supporupport as
he was entitled
to do, he was not influenced by any consideration of gift of
use of a hired car or free accommodation, he was not aware of
the offer of
the use of a car when he resigned on 29.9.1994, he never knew Robert Goh and
did not accept gift or benefit
of the use of the vehicle; all he knew was
that the vehicle had come from the party he had switched support to, his
driver
told him that the vehicle came from the party.
Submission by Director of
Public Prosecution
Learned Director of Public
Prosecution has made 3 main submissions which if accepted by court could
lead to the court
concluding that the 3 charges have been proved, and
accused would be convicted.
His submissions were:
1. That the court is entitled
and should draw inference, that when James Wini, an employee of Goh, acting
as representative
of Goh, hired vehicle No.A2610, the vehicle was delivered
to the accused in circumstances that accused would have known that
the
vehicle came from Goh as part of Goh's effort to get ministers and members
of parliament to withdraw their support
from Prime Minister Billy Hilly.
Accused is therefore to be taken as accepting the gift or benefit in that
circumstance.
2. That it is not necessary for
the offence ed in count 2, that accusedcused should have known who the gift
came from.
Gifts were not unlawful only if they came from the persons named
in subsection (2)(a) of section 14 of the Leadership Code
(Further
Provisions) Act, namely spouse or children of the leader or if the gifts
were of minor value intended to be
memento of the occasion or if they fall
within accepted customary hospitality. In this case the gift did not qualify
for exemption under section 14.
3. That even if the gift came
from accused's political party, it was anas an unlawful gift because the
provisions of sections
8(1) and 14(1)(c) created strict liability and in any
case knowledge was not required in the commission of the offences.
Submission by Defence Counsel
Learned counsel Mr. Radclyffe
for accused,he other hand contended that accused did not know of the
he
offer that Mr.
Goh made to cabinet ministers and did not know that the
vehicle he used came from Mr Gain. In his submission, a gift from a
political party that accused belonged to could not found liability for
offence under the sections with which accused
has been charged. He cited
section 10 of the Penal Code, (about mistake of fact), saying that the
section can be applied to this case. He cited the case of
Regina -v- John Musuota
Criminal Case No.41 of 1996 so as to distinguish it from this case, on the
basis that there has been no dishonesty on
the part of the accused in this
case.
Burden of Proof and Proof
In criminal casee burden
is on the prosecution to prove the case as a whole and the standard must be t be
beyond reasonable
doubt, not just to a point when it appears that the
probability is balanced against the accused. That rule was firmly
established in the well-known English case of Woolington -v- DPP
[1935] AC 462. In the case, Viscount Sankey LC thoroughly reviewed old cases
and old treatises, dating back to the year 1994, and contemporary
ones. He
dismissed the opposite proposition which he said emanated from Sir Michael
Forster's book, Crown Law. That rule of proof in criminal cases has
been adopted in Solomon Islands. One of the earlier cases in which it was
applied
is Ipao -v-
Regina
[1982] SILR 128. The court must be satisfied that all facts relied upon have
been proved to the same standard of beyond reasonable doubt. If
inference is
to be relied upon, that inference must be drawn from facts proved to the
standard required; and it must
be the only reasonable inference possible
from the proven facts. In this case the prosecution has proved beyond
reasonable
doubt, in fact to certainty, that vehicle No.A2610 was hired by
James Wini representing Goh. The prosecution, however, has
not led direct
evidence that Wini or Goh delivered the vehicle to the accused or to the
party, or that the accused or
his driver collected it from Goh's office. I
cannot tell the exact facts of delivery that the prosecution would like the
court to infer. None of the probable facts is more compelling. On the other
hand, accused was not a reliable witness because
he was often less than
frank. I disbelieved him on several facts, nonetheless he, stated in his
testimony that it was
his driver who brought the vehicle to his house and
that when accused enquired, the driver said that the vehicle, "came
from the
party". The prosecution has not disproved that nor provided alternative
fact. The court must, given the
rule of burden of proof in criminal cases,
accept the story of the accused, though he was not the best witness, or at
least decline to draw inference in favour of the prosecution on that item of
fact. The prosecution has not produced better
proof on the point, and the
proved facts leave open several probable inferences including the one put
forward by the
accused.
The Decision
In my judgment, the prosecution
has not proved the circumstances in which the accused accepaccepted or received
vehicle No.A2610.
I have expressed the view in
Regina -v- John Musuota
that some dishonesty must be proved in these offences of leadership code and
that is notwithstanding that the Leadership
Code (Further Provisions) Act,
in section 14 only excludes gifts from spouse and children, gifts of minor
value and or
on occasions. I was persuaded by the reasons in a case from
Papua New Guinea, Kedea Uru [1988 -89] 226. I still hold that view.
These are not offences of strict liability. The gift must be relevant to the
role or status as a leader. It must be such that it tends to cast doubt
about the ability of the leader, to resist corruption
or undue influence or
about his being upright. Take as example a very likely occurrence: A brother
of a leader gives
the leader some money to help his brother out of a
financial situation. Would that be a leadership offence? Should it be?
Suppose the brother of the leader is a well of businessman with far greater
means than his leader brother; he helps the
brother leader by providing him
with a vehicle to use to travel to office where he works as a civil servant
in leadership
position, or in the case of the leader brother being a
politician, to use during the leader's political campaign. Are leadership
offences intended to punish such? In my view the gift must first be aimed at
the role of the leader as leader, and therefore
relevant to casting doubt
about the leader. That is where the dishonesty comes in. On that view, the
prosecution's case
in all the three counts cannot succeed because failing to
prove the circumstances in which the vehicle was delivered to the
accused
meant that the prosecution has failed to prove some dishonesty, and that the
vehicle was given or accepted in
the relevance of the leader's role or
status so as to be viewed as casting doubt in his status as a leader. If the
vehicle
largely came from the party it would appear that in the circumstance
prevailing, it might be relevant to Mr. Zapo's role as
a leader and it may
appear that it could be taken that it was relevant in assessing Mr. Zapo's
ability to be upright.
Even so, in this case, the prosecution would still
have to prove that it was part of a likely bargain to dishonestly resign.
That would seem likely, given the evidence about lobbying and the accused's
own testimony that he had planned his resignation,
in discussion with the
party's leaders. There is however, one other difficulty in that conclusion;
the accused resigned
on 29.9.1994, before any other minister had resigned
and certainly before Goh went to Alebua in October to lobby. Can it be
safely said that accused was aware of the bargain before he resigned when in
the record evidence of lobbying relates
to period subsequent to his
resignation? It is possible, even probable; I however, doubt that it can be
said beyond reasonable
doubt.
The submission made by Mr. Radclyffe about section 10 of the Penal Code is difficult to follow. I do
not think hink that section 10 can be applied in this case. The section reads:
10. A person who does or omits
to do an act under an honestreasonable, but mistaken, ben, belief in the
existence of any
state of things is not criminally responsible for the act
or omission to any greater extent than if the real state of things
had been
such as he believed to exist.
The operation of this rule may
be excluded by the express or implied pred provisions of the law relating to the
subject.
<
In this case there has been no
mistake, let alone honest one, in the mind of the accused, about where the
vehicle came
from. As far as he knew, the vehicle came from the party; he
was told so, and it may well be the case. There is no evidence
to the
contrary. Mr. Wini was not called so as to say whether having arranged the
hire he collected the vehicle at all,
and if so, whether he took it to Mr.
Goh or to the party or to the accused. He might have left it at the car
rental office
to be collected by someone else. It is not possible to tell
from the record.
Accused Acquitted
For the reasons I have given, I
am unable to say that the prosecution has prots cases charged in the 3
e 3
counts. The
accused, Oliver Zapo, is found not guilty of the offences of,
(1) Use of office for personal benefit, under section 8(1) of
the Leadership
Code (Further Provisions) Act, (2) acceptance of benefit, under section
14(1)(c), and (3) allowing integrity
to be called into question under
section 94(1)(c) of the Constitution, as read with section 24 of the
Leadership Code
(Further Provisions) Act. He is acquitted on all the three
counts and discharged.
Dated this 23rd day
of May 1997
At the High Court
Honiara
Sam Lungole-Awich
JUDGE
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