Regina v Paul [1998] SBHC 132; HCSI-CRC 34 of 1997 (4 November 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 34 of 1997

REGINA

-v-

ALLAN PAUL

High Court of Solomon Islands
(Muria, CJ.)
Criminal Case No. 34 of 1997

Hearing: 26 October 1998
Judgment: 4th November 1998

DPP for Prosecution
A. Radclyffe for Accused

MURIA, CJ: The defendant, Allan Paul, is the current MP for the North Vella La Vella Constituency. He is now before this Court charged with five (5) offences of Misconduct in Office. The charges relate to the alleged breaches of the provisions of the Constitution and Leadership Code (Further Provision) Act. At the commencement of the hearing and before the defendant was arraigned, the learned DPP withdrew Count 5 which relates to an alleged acceptance of bribery. The remaining four (4) charges are:

1. STATEMENT OF OFFENCE

Misconduct in Office c/s 7(a) of Leadership Code (Further Provisions) Act.

PARTICULARS OF OFFENCE

That Allan Paul of National Parliament, Honiara, at Honiara in the Guadalcanal Province between 14th September 1993 and 14th September 1995, in Honiara, being a member of Parliament and person to whom Section 93 of the Constitution applies, misconducted himself when he failed to declare his financial interests and assets and those of his spouse to the Leadership Code Commission, as required by Section 5 of the Leadership Code (Further Provisions) Act.

2. STATEMENT OF OFFENCE

Acceptance of Benefit, c/s 14 (1) (c) of the Leadership Code (Further Provisions) Act.

PARTICULARS OF OFFENCE

That Allan Paul of National Parliament, Honiara, at Honiara in the Guadalcanal Province between 15th November 1993 and 27th December 1993, in Honiara, being a Leader, misconducted himself, when he accepted a benefit or advantage to wit, a plane charter by ALLARDYCE LUMBER CO. LTD., as such benefit or advantage was not a memento of a ceremony or social occasion attended by the said ALLAN PAUL.

3. STATEMENT OF CLAIM

Allowing integrity to be called into question, contrary to section 94(1)(c) of the Constitution as read with section 24(1) of the Leadership Code (Further Provisions) Act.

PARTICULARS OF OFFENCE

That Allan Paul of National Parliament, Honiara, at Honiara in the Guadalcanal Province between 1st November 1993 and 31st December 1993, in Honiara, being a member of Parliament and person to whom Section 93 of the Constitution applies, misconduct himself by allowing his integrity to be called in question, when he attempted to bribe OLIVER ZAPO to join the Opposition.

4. STATEMENT OF CLAIM

Demeaning position, c/s 94(1) (b) of the Constitution as read with Section 24(1) of the Leadership Code (Further Provisions) Act.

PARTICULARS OF OFFENCE

That Allan Paul of National Parliament, Honiara, at Honiara in the Guadalcanal Province between 1st November 1993 and 31st December 1993, in Honiara, being a member of Parliament and person whom Section 93 of the Constitution applies, misconducted himself when he demeaned his position by attempting to bribe EDMOND ANDRESEN to leave the Government and join the Opposition.

The defendant pleaded not guilty to all the charges.

The prosecution called 8 witnesses. In addition and with the agreement by the defense, the depositions from three witnesses and a number of exhibits have also been admitted as evidence in this trial. The defendant had given evidence on oath on his own behalf. No other witnesses had been called for the defense.

The onus is, of course, on the prosecution to satisfy the Court of the defendant’s guilt. The standard of proof to be applied is that laid down in R -v- Geoffrey Siapu, Crim. Cas. No. 34 of 1992 (H. C) (Unreported), which, although not as high as a criminal standard, is proof higher than the usual civil standard of proof. That is to say, that “the Court must be reasonably satisfied of the truth of the allegations brought against the leader bearing in mind the nature and gravity of the charge and possible adverse consequences what the leader would be subjected to.” See also R -v- Edmond Andresen, Crim. Case. No. 37 of 1996. (H. C) (Judgment given on 23/5/97) which applied the standard I aid down in Geoffrey Siapu.

In this case, I deal with the charges in the order they are presented together with the evidence relating to each of the charges. Before I proceed to do so, however, I must point out that Members of Parliament including the defendant here, had been brought before this Court to be dealt with not because of their political support but because they were alleged to have committed offences in the course of pursuing their political support. I now turn to the charges.

Court 1

Under this count, the defendant is charged with failing to declare his financial interests and assets as well as those of his spouse, contrary to section 7(a) of the Leadership Code (Further Provision) Act. The section is in the following term:

“7. Any Leader who-

(a) Fails without reasonable excuse (the burden of proof of which shall be upon him) to give the Commission a statement as required under section 5; or

(b) Fails without reasonable excuse (the burden of proof of which shall be upon him) to give to the Commission such details or further details as he may be required to supply in order to comply with any notice issued under section 6; or

(c) Knowingly, recklessly or negligently gives in such statement or details any information that is false, misleading, or incomplete in a material particular, is guilty of misconduct in office.

The obligation to make declarations is set out in section 5 of this Act. No issue has turned on that statutory requirement. What the defendant contends is that the forms issued were not “prescribed” forms as no regulations have yet been made prescribing the forms to be used. As such no offence has been committed by the defendant when he failed to fill the declaration form and returns it to the Leadership Code Commission. The learned DPP submits that in previous case of R -v- Elizabeth Ataria, Crim. Cas. No. 15 of 1996, (HC) (Ruling given on 31/10/97) this Court rejected a similar argument. In that case, his Lordship Palmer J. ruled that the absence of the regulations prescribing the forms, did not affect the enforceability of section 5 of the Leadership Code (Further Provisions) Act requiring leaders to give statement in respect of himself, his spouse and each of his children who are under 18 years of age. Failure to do so, is an offence.

I accept that because of the absence of regulations, the administrative functions of the Commission may not be as effective as it should be. However, the requirements of the section 5 are not dependent on the enactment of the regulations providing for the prescribed forms.

The evidence in this case certainly shows that the defendant last filled in the declaration form on 14 September 1993. I accept the evidence for the prosecution that on 14 April 1996 the declaration form was sent to the defendant. No response came from the defendant. Subsequently reminders were sent on 1 October 1996 and 12 May 1997 to the defendant. Still there was no response. The defendant’s argument is that he did not receive the form. He however remembered seeing a letter from the Leadership Code Commission regarding the matters.

Having considered the evidence of Selwyn Miduku(PW5) and Wilfred Hatigeva (PW6) together with that of the defendant, I am satisfied that the declaration forms were sent to the defendant and that he failed to return them duly filled in. The failure to do so is an offence under section 7 of the Act. I find the offence alleged in Count one (1) proved and I find the defendant guilty as charged in count one (1) and he is convicted.

Count 2

In count 2, the defendant is charged with accepting a benefit or advantage to wit a plane charter by Allardyce Lumber company contrary to section 14(1)(c) of the Act. This provision prohibits a leader from accepting a benefit or advantage unless it is memento of a ceremony or social occasion. Section 14(1) (c) provides:

“14. (1) Any Leader who, or whose spouse or child under eighteen,--

(a) accepts any loan of money; or

(b) holds any franchise; or

(c) accepts any gift or other benefit or advantage, from any person, company corporation or incorporated association, is guilty of misconduct in office.”

This provision had been considered in earlier cases of R -v- Musuota Crim. Case. No. 41 of 1996 (HC) and R -v- Edmond Andresen (above). In the latter case, this Court said:

“In so far as the offence under section 14(1) (c) is concerned, in my view, it is complete when a Leader accepts a benefit or advantage which is not intended to be a memento of a ceremony or social occasion attended by the Leader or when it is not within accepted standards of hospitality. The mischief sought to prevent is having leaders unjustly enriching themselves through benefits received from their leadership role beyond their normal remuneration to which they are already entitled. Honest leaders, of course, would not accept extra benefit or advantage beyond their remuneration.”

Here the prosecution has to establish first of all, that the Charter flight was a benefit or advantage to the defendant; secondly, that he accepts it; thirdly, that it was not a memento of a ceremony or social occasion attended by the leader; and fourthly, that it was not within accepted standards of hospitality.

The evidence presented to the Court shows that the charter of the Western Pacific Air Services plane on 15 November 1993 to Barakoma and return was paid for by Allardyce Lumber Company Limited in the sum of $2,465.00. The Charter was arranged by the defendant. The plane took the defendant and others to Vella La Vella and back to Honiara. Although paid for by Allardyce Lumber Co., there is no evidence to suggest that the company arranged for the Charter for its business purposes. Rather this was a charter flight for the defendant’s business, that is, to meet Mr. Oliver Zapo and have discussion with him over the matters of politics. I bear in mind what the defendant had said in his evidence that this was not the first time he travelled on flights chartered by Allardyce Lumber Co. There certainly were a number of Western Pacific Air Services chartered flights paid for by the company before and after 15 November 1993, as can be seen from the “Remittance Advice” from the company. The only difference here is that in the present case, the defendant arranged for the charter to go to Vella La Vella to see Mr. Zapo but it was paid for by Allardyce. I find the accused Lumber Company.

In my judgment the evidence in this case does show that this was a charter flight, the benefit of which was enjoyed by the defendant at the expense of Allardyce Company. It was certainly not a memento of a ceremony or social occasion and clearly not with accepted standard of hospitality. I am satisfied on the evidence that the prosecution has established the guilt of the accused guilty on count 2 and he is convicted.

Count 3.

In this count, the defendant is alleged to have attempted to bride Oliver Zapo. The prosecution case is that the defendant offered $10,000 to Mr. Zapo in order to lure him to leave the Government and join the Opposition.

The evidence for the prosecution on this charge came from Mr. Zapo and Mrs. Tina Rina. Mr. Zapo’s evidence was, to me, having listened to him and watched him gave evidence, not at all convincing. He spoke of the manner in which the defendant approached him with a view to convincing him to walk across to the Opposition. It appeared to the Court that it was a practice by the Member of Parliament to jokingly offer each other money for reasons. According to Mr. Zapo when the defendant showed him his brief case full of money, Mr. Zapo too took the opportunity to respond by showing to the defendant that he too had money in his brief case. In the course of that, the two made jokes about walking across to the Opposition. That to me can hardly be a scenario of the defendant attempting to bribe Mr. Zapo.

The defendant in his evidence also confirmed the joking manner in which he and Mr. Zapo talked. Mrs. Rina’s evidence does not advance the prosecution case further on this charge. Her evidence simply confirms the meeting for lunch at YWCA and the fact that the defendant and Mr. Zapo talked politics during the luncheon. Nothing further can be of assistance from her evidence.

For the offence in count 3 to be established the prosecution would have to show a case of attempted bribery. The prosecution must show by evidence some action by the defendant that he intended to bribe Mr. Zapo; that he began to put his intention into effect by some means adapted for that purpose; that he manifested his intention by some overt act; and that he did not fulfil his intention to commit act of bribery. These are necessary ingredients of an attempt to commit an offence, such as the one we are dealing with here. The evidence in this case simply does not measure up to the allegation of attempted bribery.

On the evidence, I am not satisfied that count 3 is made out and I must find the defendant not guilty on this count and he is acquitted.

Count 4

Like count 3, this count alleged that the defendant demeaned his position by attempting to bribe Edmond Andresen. The prosecution case is that the defendant attempt to bribe Mr. Andresen by offering him $10,000 which was later increased to $15,000 to join the Opposition.

In this case, Mr. Andresen never saw any money from the defendant although, as he said, the defendant offered to give him $10,000 if he walked across to the Opposition. Like with Mr. Zapo, the conversation between the defendant and Mr. Andresen was not serious. They were good friends. The only reason why Mr. Andresen chose to report this friendly conversation between him and the defendant was because he was under pressure from the NCP Caucus. He agreed that the reporting of the defendant to the Leadership Code Commission was politically motivated.

I repeat what I said in Count 3, about the requirements to be proved before the case of attempted bribery can be established. The evidence on this count simply does not come near establishing any case of attempted bribery.

On the evidence, I must find the defendant not guilty and he is acquitted on this count.

Order: Count1 Guilty

Count 2 Guilty

Count 3 Not guilty

Count 4 Not guilty

Sir John Muria
CHIEF JUSTICE