Regina v Kemakeza [2012] SBMC 9; Criminal Case 1241 of 2009 (21 February 2012)

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Date of Hearing: 21, 22, 23, 24, 25 & 28 February2011
1, 2, 3, 4, 5, 7, 8, 9, 15, 17, 29 &30 March 2011
1, 11 April 2011 & 13, 18, 24, 25, 26, 27, 30, 31May 2011

That Mark Kemakeza on an unknown day in August 2007 at Honiara, being a person employed in the Public Service, namely the Minister of Forestry and the member of Parliament for Ngella Constituency and charged with the performance of a duty by virtue of the said employment, did corruptly ask members of the Central Islands Provincial Assembly for a benefit namely, support for a no confidence motion against the Premier of Central Islands Province the Honourable Patrick Vasuni, on account of being provided, by Mark Kemakeza in the discharge of the duties of his office, with funding from the 2007 Fishing Projects for Central Islands Province.

That Mark Kemakeza on or about 10th October 2007 at Honiara, being a person employed in the Public Service, namely the Minister of Forestry and the member of Parliament for Ngella Constituency and charged with the performance of a duty by virtue of the said employment, did corruptly obtain a benefit namely, ten cheques in the sum of $484,000 made payable to the approved recipients of the 2007 Fishing Projects for the Central Islands Province, on account of Mark Kemakeza, in the discharge of the duties of his office, having those cheques paid into the bank account of a third party, namely, BPI Fibreglass Company Limited.

That Mark Kemakeza between 15th October 2007 and 30 November 2007, at Honiara, being entrusted with property, namely $280,000 being funds to be paid or delivered pursuant to the Rural Micro Fisheries Projects 2007, did fraudulently convert to his own use or benefit the said property.

That Mark Kemakeza on or about 10th October 2007 at Honiara having received property, namely ten cheques in the sum of $484,000.00, for or on account of other persons being the approved recipients of the 2007 Fishing Projects for the Central Islands Province, did fraudulently convert to his own use or benefit the said property.

That Mark Kemakeza on or about 10th October 2007 at Honiara being a person employed in the Public Service, namely the Minister of Forestry and the member of Parliament for Ngella Constituency, did in abuse of the authority of his office and for the purposes of gain, an arbitrary act namely the depositing of ten cheques in the sum of $484,000 into the bank account of a third party, namely BPI Fibreglass Company Limited, prejudicial to the rights of other persons, namely the approved recipients of the 2007 Fishing Projects for the Central Islands Province.

(2) This was a very lengthy trial in which prosecution called 32 witnesses and the trial commenced on 21/2/11 and concluded on 31/5/11. The trial was initially set down for 21/2/11 to 11/3/11 but adjournments were granted as the prosecution had difficulties in getting their witnesses to court. The prosecution witness list contained names of 35 witnesses out to which 2 were not called namely Albert Maba and Christian Mara.

(3) Upon completion of the trial the matter was adjourned to 2/6/11 because of non-availability of the counsels as they were engaged in other courts and it was adjourned further due to the non-availability of the defence counsel because of her medical incapacity. The final submissions were made on 7/12/11.

(4) The prosecution bears the burden of proof, which is beyond all reasonable doubt.

(4) In 2007 the defendant was a Member of the National Parliament representing Ngella Constituency in the Central Islands Province and was also the Minister of Forest, Environment and Conservation

(5) This case involves funding of government fishing projects known as 2007 Rural Micro Fisheries Projects. A total of $6m was allocated to the approved applicants by the government all over Solomon Islands and out of which a sum of $484,000 was allocated to the Central Islands Province.

(6) A further sum of $3.8m was approved for distribution to other recipients for fishing project for whole of Solomon Islands who had not applied for projects under the $6m funding. Out of the sum of $3.8 m, a sum of $280,000 was approved and allocated to the Central Islands Province. This was known as the Rural Constituency Development Fund to be administered by the MP and the committee at the discretion of the MP for fishing projects.

(7) There was widespread misuse of the government approved funds. The recipients instead of procuring or buying the items approved in the funding cashed the government cheques and bought other items like taxis or built houses and some of the recipients were from other constituency and when they claimed to live in the constituency for which the funding was approved.

(8) The defendant was concerned about the misuse of funds and having collected the cheques for the sum of $484,000 made payable to the 10 approved recipients he unilaterally decided to deposit the cheques in B.P.I Fibreglass(BPI Co) Ltd without having any discussions with the recipients.

(9) He had discussions with Y Sato who agreed to supply 10 X 30 hp Yamaha outboard motor engine at a total costs of $184,000 ($18,400 each).

(10) He also had discussions with Baden Prince of (BPI Co) who agreed to manufacture 10 X 21 feet boat and 10 eskies at total costs of $300,000.

(11) Following this discussions the sum of $484,000 was paid into BPI Co's account and Baden Prince gave a 21 feet boat and $5,000 cash to Reginald Kokilli and manufactured 9 boats and 9 eskies in early 2008. The defendant did not take delivery of the boats and eskies since the police investigations had commenced and were seized by the police in 2009 and they are still in their custody at Ranadi.

(12) Out of the sum of $184,000 Baden Prince on instructions of the defendant paid the following sums to Lee Kwok Kuen for the purchase of outboard motors:

15 October 2007	$20, 500	for Reginald Kokili
17 October 2007	$20,500	for Constantine Seikudo
17 October 2007	$25,500	for John Waleurifo

(13) Baden Prince paid the sum of $117,000 to Y. Sato on 7/12/2007 and that sum is still in Y. Sato's account.

(14) John Waleurifo did not purchase the outboard motor engine and he used his cheque to pay for somebody else's purchase of outboard motor engine to Lee Kwon Kuen and that person paid him a sum of $24,000 in cash.

(15) The defendant was not interviewed by the police before the charges were laid against him.

(16) Because of this widespread misuse a Cabinet/Caucus meeting was held in the Prime Ministers' office in September 2007. This meeting was attended by the members of the Cabinet as well as all the government backbenchers to discuss and approve the list which had already been prepared. The defendant also attended this meeting and all the participants were allowed to speak and make contributions to this meeting.

(17) As a result of this meeting some guidelines were agreed on as to the handling of the funding namely the $6m. The actual guideline was not produced to the court. According to the Minister of Finance Mr Gordon Darcy Lilo the guidelines were as follows:

(18) Following the meeting individual cheques for each recipient from respective constituencies were printed by the Treasury and the cheques were signed by the Treasury officials namely Luma Darcy as Permanent Secretary for Ministry of Finance and Treasury and Ann Halea as an authorised signatories.

(19) The cheques for the Central Islands Province were dated 8/10/07 and were collected by the defendant on 8/10/07 and the discretionary fund of $280,000 was paid into the Ngella Constituency Trust Fund with National Bank of Solomon Islands in account number: 16-1419 on 15/10/09. (I shall discuss this later as it subject of another charge)

(20) The defendant having collected the 10 cheques for $484,000 called Baden Prince of BPI Fibreglass.(BPI Co) Ltd on or about 8/10/07 and he went to see the defendant in his office where discussions took place about the possibilities of manufacturing the 10 boats and eskies and the 10 outboard motor engines to be supplied by Y. Sato.

(21) The defendant showed the 10 cheques to Baden Prince who expressed concern that the cheques were not made payable to his company and were made payable to the individual recipients and the defendant assured him the cheques can be deposited into his company's account as he had made a special arrangement with the Ministry of Finance. Baden Prince asked the defendant as to why he was diverting the funds into his company's account and his response was that the approved cheques were misused. Baden Prince said that sounded reasonable as he was aware of misuse of aid projects where cheques were cashed and equipments were not procured.

(22) Baden Prince took the 10 cheques to the ANZ Bank at Point Cruz as that was his bank and he met Peter Isaac, the branch manager. He told Peter about his discussions with the defendant and Peter told him that the cheques cannot be deposited into his company's account whereupon he told him that the defendant had made arrangements with the Permanent Secretary for Finance Mr Luma Darcy. He left the cheques with Peter and 2 days letter the cheques totalling $484,000 were deposited into his company's account.

(23) The cheques were deposited into Baden Prince's company account after Peter Isaac had discussions with Luma Darcy who initially gave his verbal approval and Peter told him that it will not suffice and thereafter he gave a written approval dated 10/10/07 (see Ex P 1 Tab 15 Page 1). This a Solomon Islands Government letter from the Ministry of Finance and Treasury dated 10/10/07 addressed to the ANZ asking it to facilitate the deposit of 10 project cheques into the account of BPI Co and the letter was signed by Luma Darcy as PS for Finance and Denty Tuke who had authority to sign that letter and cheques. Denty said he did not read that letter prior to signing it but said that Luma Darcy would issue the letter upon instructions of a minister.

(24) Luma Darcy said that he had no conversations with the defendant after he handed him the cheques. He said that the first time he knew that the cheques were deposited in BPI Co. Ltd.'s account was when Constantine Sekudo a project recipient told him so, but when he was shown Ex P1 Tab 15 Page1 then he recalled signing that letter.

(25) After the cheques were deposited into BPI Co's account some of the recipients including Constantine Sekudo and John Waleurifo came to see Luma Darcy and complained that they should have received the cheques themselves as the recipients of the project. He spoke to the defendant who told him to send them to him.

(26) Constantine Sekudo in his application had attached proforma invoices from Prime Products Ltd for the boat and from Lee Kwok Kuen for a 30 HP Suzuki OBM and John Waleurifo had attached an invoice from Leek Kwok Kuen for a 40 hp Suzuki outboard motor.

(27) Gordon Lilo Darcy said in his cross-examination that he was not aware of Ex P 1 Tab 15 P1 (letter of authority) to ANZ issued by Luma Darcy.

(28) The defendant in his evidence said that the sum of $484,000 was deposited in BPI Co's account after arrangements were made with the Minister for Finance (Gordon Darcy Lilo) and the Permanent Secretary for Finance (Luma Darcy).

(29) After the recipients started complaining to Luma Darcy he spoke to Baden Prince and asked for refund of the balance monies. It is not clear as to when this conversation took place but it was probably within 5 or 6 days of the depositing of the sum of $484,000 into BPI Co's account (on 10/10/07) as Baden Prince wrote a cheque on 16 October 2007 for the sum of $459,000 which was $500 more the actual amount after having issued a cheque to Lee Kwok Kuen for the sum of $25,500 for the purchase of an outboard motor for John Waleurifo.

(30) Baden Prince issued this cheque for $459,000 without consulting the defendant and it was delivered by his wife to Luma Darcy. After giving this cheque to Luma Darcy Baden Prince told the defendant and he then got into contact with Gordon Darcy Lilo and complained that Luma Darcy was interfering with the project money. Gordon Darcy Lilo said that he was not aware that Luma Darcy had asked Baden Prince for refund of the cheques. When Gordon Darcy had discussions with the defendant he said he then became aware that the defendant wanted to procure the items from BPI Co and that the purpose of the funding was to procure the equipments.

(31) Baden Prince's evidence is that Gordon Darcy came to his office and asked if Luma Darcy had returned the cheque to him as he had instructed him to do so but Baden Prince told him Luma Darcy was refusing to give it back and after that he put a stop payment to the cheque. Luma Darcy held on to the cheque and never deposited it. It is not clear as to when Gordon Darcy went to Baden Prince's office and also there is no evidence as to when the "stop payment" was placed.

(32) The delivery of the cheque of $459,000 on 16/10/2007 to Luma Darcy is very material as at that date the total amount plus an extra $500 was refunded to the Solomon Island Government which effectively restored all the recipients to their original positions. Why did Luma Darcy just sit on the cheque and not deposit it?

(33) Counts 4 & Count 5 relates to the sum of $484,000 and in terms of sequence of events count 5 would come before count 4. Count 5 relates to abuse of office and the prosecution has submitted that "ignoring" the Cabinet decision and depositing the cheques into BPI Co's account is the "arbitrary action''. For count 4 the prosecution in its submission has quite aptly put it that the ''authorisation'' lies in some way at the heart of the matter.

(34) The authorisation (Ex P1 Tab 15 Page 1) that enabled the 10 cheques to be deposited into BPI Co's account was prepared and signed by Luma Darcy but in his evidence he said that the first time he knew that the 10 cheques were deposited into BPI Co's account was when Constantine Sekudo told him. How can that be possible? The evidence of Denty Tuke the other signatory to the letter of authorisation was that PS for Finance would be guided by instructions of a Minister. Which Minister? It was not clarified. However Gordon Darcy instructions to Luma Darcy was to return the cheques to Baden Prince and that would suggest that he was supportive of the idea of depositing of the cheques in BPI Co's account initially.

(35) In the circumstance it cannot be suggested that the defendant acted in an arbitrary manner and in effect had authorisation (Ex P1 Tab 15Page 1) to deposit the cheques in BPI Co's account and I therefore find that the prosecution had not proved its case beyond reasonable doubt on counts 4 and 5 and the defendant is accordingly acquitted.

(36) In count 1 it is alleged that the defendant a Minister for Forestry and Member of Parliament for Ngella constituency corruptly asked the members of Central Islands Provincial Assembly for a benefit namely, support for a vote of no confidence against the Honourable Premier of the Assembly and in return he was to provide funding from 2007 fishing project for Central Islands Province.

(37) James Manebona (PW3), John Lodo (PW 25), Ruxton Diwa(PW26), Stanley Manetiva (PW29) and Mark Vaka (PW30) stayed at the defendant's house between August to October 2007 some stayed for couple of weeks whilst others stayed there for about 1 to 2 months. The prosecution's case is that during their stay at the defendant's house they were offered a fishing project each provided they supported a vote of no confidence in the removal of Patrick Vasuni as the Premier with whom the defendant did not have good relationships.

"Mark Kemakeza wanted us to choose a right person to be the Premier. We told him we wanted Charles Kunu to be Premier and Mark Kemakeza agreed to that"

(39) John Lodo, Stanley Manetiva, Ruxton Diwa and Mark Vaka gave statements to the police to the effect that the defendant told them that each of them will be given a fishing project if they supported a vote of no confidence in the removal of Patrick Vasuni as the Premier. Their evidence was in direct conflict with their statements to the police and on prosecution's application, they were declared unfavourable (hostile) witnesses.

(40) The prosecution has invited me to use their statements pursuant to section 164 of the Evidence Act 2009 as evidence of the facts stated therein. As opposed to the statements of these unfavourable witnesses I have the evidence of James Manebona who stated very clearly that they all wanted Charles Kunu to be the Premier and the defendant agreed to that. James Manebona had some problems remembering things but his evidence on the crucial point is very clear and I have to accept his evidence. Having accepted his evidence I am unable to use the statements of the unfavourable witnesses as evidence of the facts stated therein and I therefore hold that the prosecution has been unable to prove the charge on count 1 beyond all reasonable doubt and the defendant is accordingly acquitted.

(41) On 15/01/07 a sum of $280,000 was paid into Ngella Constituency Trust Fund with National Bank (bank) in account No. 16-1419. The signatories to this account were the defendant, Michael Salini, and Christian Mara as treasurer and all 3 were required to sign the cheques and subsequently it was changed to any 2 to sign.

(42) The defendant, Michael Salini and Christian Mara were part of a committee with 2 or 3 others members and Michael Salini was its secretary. He left the committee in October/November 2006 because of his appointment as Deputy Provincial Secretary which was a public service position and he thought this could create some conflict of interest. He gave an outline of how they operated the constituency account when he was on the committee and stated that receipts for all purchases were obtained.

(43) According to the evidence of Gordon Darcy Lilo the defendant was required to retire the funds whereas the defendant's evidence is that there was no such requirement to retire the funds in the year 2007. When the Cabinet/Caucus meeting took place Gordon Darcy Lilo was the Minister for Finance as well the Acting Minister for Fisheries as the Minister for Fisheries Nollen Leni was abroad. Nollen Leni was the Minister for Fisheries between the period 2006 to 2009 and he said that he did not receive any reports on retirement of project funds from any Member of Parliament in respect of the discretionary fund for the fishing project for that period.

(44) The following cheques were drawn on A/c No: 16- 1419 and all cheques were signed by the defendant and Christian Mara:

The defendant attempted to cash this cheque with only his signature and the bank refused to do so as it required 2 signatures. Subsequently he obtained the signature of Christian Mara (the other signatory) and the cheque was cashed.

(45) It is the prosecution's case that the funding of $280,000 known as Rural Constituency Development Fund ( RCDF) was to be administered by the MP and the at the MP's discretion to be distributed to the communities for the fishing projects. When this was suggested to the defendant he refuted this suggestion and said that it was a discretionary fund to be distributed to the members of the communities at his absolute discretion as an MP.

(46) The defence counsel in her submissions with respect to the sum of $280,000 submitted that:

"It must be noted at this juncture that that the amount for which the defendant is charged is discretionary fund and the question that needed to posed here is whether or not this court could enquire into how that money was disbursed by the defendant. It is submitted that this court should not enquire into that funding due to its nature- and that it is disbursed at the discretion of an individual Member of Parliament.

It is rather late for the defence counsel to be making this submission. If this court was indeed precluded from dealing with this matter then this should have been raised as a preliminary issue and a ruling should have been obtained. However, later on the defence counsel in her submission stated that the evidence is short in establishing the charge beyond all reasonable doubt and has therefore conceded that I am entitled to deal with this matter.

(47) The defendant gave various explanations as to how the sum of $280,000 was used. He explained that amongst other things it was used for the purchases of boats, repair of boats, purchases of outboard motor engines and for payment of freight charges to the barge owner who transported these items to his constituency.

(48) The defendant was unable to produce any receipts for the purchases, repairs or freight charges to the barge company. His explanation was that the sum of $200,000 together the other withdrawals was paid in cash to Christian Mara and CDO Peter McPherson who was appointed by the National Government and they acquired the various items which were later taken to his constituency. He was unable to obtain any receipts from either of them or the suppliers. He said the suppliers were BPI Co, Y Sato and Honiara Fibre Glass. It was not put to Baden Prince that any purchases and repairs to boats were done by BPI Co. It was suggested to Yoshiuki Sato (Y Sato) that 6 x 15 hp outboard motors were purchased from Ngella Constituency Fund by Christian Mara and his response was that he could not recall that purchase and he further said he would remembered if the purchase was done through Ngella Constituency Fund cheque.

(i) Steward Tiva from Ngella. He said that he was given 21 feet boat from BPI Co, 15 hp Yamaha out board motor and a large esky.

(II) Peter Lemanigi from big Ngella and he said that he received a 25 feet boat, 30 hp Yamaha outboard motor and a large esky

(iii) David Tiva Kapu of Ngella that he received a 25 hp outboard motor engine and had his boat repaired.

(50) Peter Lemangi and David Kapu said that they received a 30 hp and 25 Yamaha out board motor respectively whilst it was put to Y. Sato that the purchase was made of 6 X 15 hp Yamaha out board motors.

(51) The prosecution has submitted that since the defendant has not produced any documentary evidence and his witnesses' evidence does not tie up I should therefore draw the conclusion that the defendant either used the entire sum of $280,000 or at least benefitted from it. It is submitted that is the only reasonable inference open on the evidence.

(52) The prosecution was unable to call Christian Mara to give evidence and the defendant's evidence is that he gave all the monies to Christian Mara and the CDO McPherson to do the purchases.

(53) The defendant when asked to explain the withdrawal of the sum of $200,000 on the very day the monies was put in the Ngella Constituency Fund A/c (ie 15/10/07) said as follows:

A: This is because there must be a shipment during this period and the fund must be withdrawn by the committee so that they can purchase things for the applicants."

(54) The defendant's response in paragraph 53 does not correspond with his actions and attempts to cash the cheque of $200,000. If the withdrawal was pursuant to a committee's resolutions then why did he attempt to cash the cheque with only his signature? He should have gone with the entire committee as the purchases were to be done and put on board the ship which he said was leaving Honiara for Ngella. In light of the defendant's concern about the possible misuse of the sum of $484,000 it is absolutely inconceivable that the defendant would just hand over $200,000 in cash to Christian Mara and CDO McPherson. This was a very large amount of money for the benefit of the people living in the defendant's constituency for fishing project and I cannot believe that the defendant would just hand over such a significant amount of money without ensuring that it will be put to proper use.


"Q:	You said 5 canoes were bought from $200,000?
A:	Yes

Q:	You said BPI manufactured it?
A:	Not only him

Q:	So who else?
A:	Honiara Fibre Glass.

Q:	How many did they make?
A:	They repaired 2 boats.

Q:	You gave money to BPI manufacture 5 boats?
A:	I did not say that.

(56) As I said earlier Baden Prince was not questioned about manufacturing of the 5 boats. This was of great importance to the defence case. Baden Prince's evidence is that he manufactured only 9 canoes and 9 eskies. The defendant said he did not have the receipts with him as the purchases were done by Christian Mara and the CDO, McPherson. He further said that he tried to obtain the receipts but was unable to do so. Obviously, Baden Prince was no stranger to the defendant if anything they were very close to each having done the other project from the sum of $484,000. It would have been quite easy for him to obtain these receipts from Baden Prince if BPI Co had in fact manufactured the boats and that explains why Baden Prince was not questioned on the purchase and or manufacturing of the 5 boats.

(57) Out of the sum of $280,000 only one payment was made by cheque in the sum of $9,536.90 and the balance was withdraw from the bank by way of cash cheques.

(58) The defendant said that the sum of $9,536.90 plus a further sum of $10,000 in cash was used to erect a fence at Mataniko River to provide security to the fishermens' boats, eskies and outboard motor that come from his constituency to Honiara. Beretta Spillas (PW21) from Tongs Corporation attended to the defendant in relation to the purchase of the galvanised cyclone wire, pipe etc (as shown on EX P1 Tab 34 P1) which the defendant said was used for the fencing at Mataniko River. In cross-examination she was asked if she was aware that the defendant was doing a rural housing scheme for his constituency. How does that bear any relevance to the building of the fence? Was this explanation to build the fence on Mataniko River an afterthought by the defendant?

(59) There has been a complete failure by the defendant to provide or produce any record on details of how the sum of $280,000 was disbursed. According to him the $280,000 was discretionary fund and the reporting or retiring requirement was not in place in 2007 and therefore he could use it according to his discretion. That assumption by the defendant is erroneous. The sum of $280,000 was allocated by the Government to the defendant as its agent and or trustee to be used by him and his committee for the benefit of his constituents for fishing projects.

(60) I am mindful of the fact that the defendant does not bear any onus of proof. It is not for him to prove his innocence and the onus and burden of proof is on the prosecution to prove the charge beyond all reasonable doubt. However,the defendant's failure to provide any records or details of how the sum of $280,000 was used leads me to draw the inference on the evidence before me which is very indeed compelling that the defendant used the sum of $280,000 for his own benefit.

(61) I therefore find that the prosecution has proved its case beyond all reasonable doubt on count 3 and I find the defendant guilty of the charge and I convict him of the charge.

(62) Since the prosecution was not seeking a conviction on count 2 the defendant is acquitted on that count.

Magistrates Court of Solomon Islands

Regina v Kemakeza [2012] SBMC 9; Criminal Case 1241 of 2009 (21 February 2012)