R v Tu'ivai [2006] TOLawRp 30; [2006] Tonga LR 310 (4 September 2006)

IN THE SUPREME COURT OF TONGA

R

v

Tu'ivai

Supreme Court, Nuku'alofa
Ford J
CR 182/2005

28-30 August 2006; 4 September 2006

Criminal law – bribery of government servant – intention of accused essential ingredient – not proved so acquitted

The accused was charged with one count of bribery of a government servant contrary to section 51 of the Criminal Offences Act (Cap 18). It was alleged that on 27 May 2005 he gave a cheque to a senior Crown counsel with the Crown Law Office in order for him to adjourn sine die a high profile Customs case where the accused, a licensed lawyer, and his two co-accused, one of whom was a Noble of the Realm and Speaker of the Legislative Assembly, were being prosecuted for attempting to bribe Customs in order to avoid paying duty on the importation of 600 cartons of Bounty Rum from Fiji. The accused contended that the payment was made as a mark of appreciation for Crown counsel's cooperation in settling a civil case out of court.

Held:

1. Before an accused can be found guilty of bribery of a government servant under section 51 of the Criminal Offences Act, the court needed to be satisfied beyond reasonable doubt that the accused's purpose in making the payment or offer was in order to incline or dispose the government servant to act contrary to his duty or, in other words, to act contrary to the accepted rules of honesty and integrity as a government servant. It was not essential for the Crown to show that the government servant did so act or even that he ever intended to do so.

2. The essential feature in the offence was the intention of the accused; the intention with which he made the offer or payment. This involved an inquiry into the state of mind of the accused at the relevant time and that, in turn, involved a consideration of all the facts that had been established in evidence in order to ascertain whether those facts demonstrated that the accused's intention at the time he made the payment or offer was the intention attributed to him in the indictment.

3. It was inconceivable that any law practitioner could seriously believe that Crown counsel could somehow just make a case go away. The court accepted the accused's contention that the payment was made as a mark of appreciation "albeit a misguided mark of appreciation" for Crown counsel's cooperation in settling the civil case and the accused was acquitted accordingly.

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown: Mr Kefu
The accused in person

Judgment

The background

[1] The accused, a licensed lawyer, is facing one charge of bribery of a government servant contrary to section 51 of the Criminal Offences Act (Cap 18). It is alleged that on 27 May 2005 he gave a cheque to the value of $400 to 'Ofa Pouono, a Senior Crown Counsel with the Crown Law Office in order to induce him to abstain from executing his duty by adjourning sine die a criminal trial in which the accused was one of the three named defendants.

[2] For his part, the accused admits giving the cash cheque for $400 to Mr Pouono on the morning of 27 May 2005 but he contends that it was given to him as a shout or gift in appreciation for his role in a civil case that had recently been settled out of court.

[3] In the civil case the plaintiff, a Mr 'Elone Matakaiongo, had issued proceedings claiming damages against the Kingdom of Tonga arising out of a motor vehicle accident. The plaintiff's van had been hit from the rear by a Ministry of Work's truck. The accused was acting for Mr Matakaiongo in that proceeding and Mr Pouono was acting for the Crown.

The evidence for the Crown

[4] Returning to the present case, 31-year-old Mr Pouono told the court that he holds an LLB degree from the University of the South Pacific (1997) and an LLM from the University of Queensland (2004). He worked for the Crown Law Office in between the degrees and he resumed his employment with Crown Law as a Senior Crown Counsel in early 2005 following his return to Tonga. As a result of the factual matters giving rise to this prosecution, Mr Pouono lost his job at the Crown Law Office and recently he began working for a private law firm.

[5] In his examination-in-chief, Mr Pouono first canvassed his involvement with the accused in connection with the civil case. He said that the file was given to him to handle upon his return to Crown Law. He could not recall the amount of damages claimed by Mr Matakaiongo but he recalled that after he reviewed the file he considered it appropriate to try and settle the case out of court. He approached the accused on the subject and both counsel agreed on a settlement figure of $2000 which was eventually approved by the Solicitor General.

[6] Mr Pouono said that after the settlement was negotiated the accused told him that he was going to give him some money. He was asked about this conversation in his examination-in-chief:

"Q. After the case with Mr Matakaiongo settled did you talk to the accused about giving you some money?

A. Yes, counsel (the accused) told me that he's going to give me some money.

Q. When did he tell you this?

A. We talked on this after the settlement of that case.

Court: He told you what?

A. He told me he was going to give me some money after the settlement of the case.

Q. Do you recall the words Tu'ivai used when he said he was going to give you some money?

A. All he said was, "I'm going to shout you."

Court: He would shout you?

A. Yes.

Q. And were you thinking of anything when he said that to you?

A. No."

[7] Referring to the other criminal case the accused was involved in ("the Customs case"), Mr Pouono told the court that he also took over handling the prosecution of that case on behalf of the Crown after his return from Australia. There were three defendants in the case, Mr Tu'ivai, Hon Veikune and 'Aisea Toa. It is unnecessary for me to go into any of the details regarding that prosecution but in general terms, as I understand it, it was alleged that the three defendants had attempted to bribe Customs in order to avoid paying duty on the importation from Fiji of 600 cartons of Bounty Rum.

[8] Mr Tu'ivai was representing himself, Hon Veikune had Mr Tu'utafaiva acting as his counsel and Mr Toa was represented by Mr Teisina Fifita. Honourable Veikune was Speaker of the Legislative Assembly at the time and his counsel was anxious to have the case heard, if possible, before the opening of Parliament for the year in late May 2005. The trial, therefore, had been scheduled to take place before Mr Justice Thomas on Tuesday 17 May 2005.

[9] The trial date of 17 May 2005 had been fixed by myself at a Directions Hearing on 11 May 2005 but as Mr Pouono had been in Fiji at the time, another counsel from Crown Law had appeared at the Chambers hearing on his behalf. Mr Pouono explained in evidence that he was duly informed of the trial date but because he did not return from Fiji until 14 May, he was not in a position to proceed with the trial when the case was called before Mr Justice Thomas on 17 May. He proposed, therefore, to ask the judge for an adjournment.

[10] Mr Pouono told the court about an incident that occurred in the courtroom immediately before the judge entered. He said that other counsel were in court but he was standing with his back to them. He then heard Mr Tu'ivai say to him words to the effect, "don't you know that the person you are prosecuting (Honourable Veikune) is a member of His Majesty's Privy Council and he would be able to have you appointed as the next Solicitor General." Mr Pouono said that Hon Veikune was not in the courtroom when the remark was made but later evidence contradicted that and I am satisfied that Mr Pouono was mistaken in this regard. The witness was asked by Mr Kefu how the others responded to the remark. He replied that they paid no attention and he smiled thinking that Mr Tu'ivai was simply joking.

[11] When Justice Thomas entered the courtroom, Mr Pouono explained his situation and formally applied for the trial to be adjourned. Justice Thomas in response told counsel that, as he would be returning shortly to New Zealand, what he proposed to do was list the case for another Directions Hearing in Chambers before Chief Justice Webster and the Chief Justice could then allocate a new trial date. The date scheduled for the Directions Hearing before the Chief Justice was 27 May 2005 at 9 a.m.

[12] Mr Pouono then recounted what happened immediately prior to and after the Directions Hearing on Friday 27 May. He said that before going into Chambers he was sitting on a seat under the verandah outside the Chief Justice's Chambers and the accused handed him something -- it was folded. He opened it up and saw that it was a cheque for $400 made out to cash. He continued in evidence:

"I said to the accused, "what is this?" He said, "it's lunch money." He said that he wants to play fair. He also said that it's okay about the staff at Crown Law, he will come around some time and give them some and then I took the cheque and put it in my shirt pocket.

Q. When Tu'ivai gave you the cheque what were you thinking at the time?

A. The first thing that came into my mind was that the money was for lunch.

Q. Were you thinking of anything else?

A. No, I wasn't thinking of anything else.

Q. After you put the cheque into your pocket what happened then after the other counsel came out of the Chief Justice's Chambers?

A. When they came out they stood in front of me. We were about to enter Chambers and then 'Amini Tu'ivai said to them, " 'Ofa's good because he's a religious man and he will adjourn the case sine die," and then we were called into the Judge's Chambers."

[13] In Chambers, after discussing the fixture position with all counsel, the Chief Justice fixed a date in January 2006 as the new trial date. Mr Pouono said that he then returned to his office and carried on with other work. After lunch that same day he remembered the cheque and he took it out of his shirt pocket and looked at it. In his words:

"I was in my room and when I took out the cheque from my shirt pocket I looked at it. And then I thought about the cheque and to me this might not be for lunch only it might be for something else and that thing -- I didn't know what that thing might be. Then I thought about the words the accused said to me on the 17th of May when we were about to proceed with the case and to me it was likely that the accused, this counsel, was trying to pay something to me or bribe me. To bribe me so that I would not be able to fully complete or carry out my task as a prosecutor for this case. It was the thought that came to my mind or enlightened my mind and I came to the conclusion that this counsel tried to bribe me in regards to this case."

[14] Mr Pouono said that later that same afternoon he contacted the President of the Tonga Law Society, Mr Laki Niu, and informed him of his suspicions about the accused. After work that same Friday he made a formal complaint to the police. On the next working day, Monday 30 May 2005, Mr Pouono reported the matter to his superior at Crown Law, who at the time was the Acting Solicitor General. He was asked to make a written statement. By the time he presented his written statement the Solicitor General had returned. She immediately had the matter reported to the Public Service Commission and Mr Pouono was suspended from duty pending an investigation. Following the investigation, he was discharged from the Public Service for breaching a regulation which prohibits public servants from receiving money and gifts. Mr Pouono said that he subsequently successfully appealed his dismissal to Cabinet and in February 2006 Cabinet quashed the order made by the Public Service Commission and he was reinstated as a public servant as from June 2005 with back pay to that date on the basis that he formally resigned his position as from February 2006, which he duly did.

[15] Towards the end of his examination-in-chief, Mr Pouono was asked by the prosecutor to formally produce the $400 cheque as an exhibit. At the same time he was asked the reason why he thought the accused had given him the $400. He replied:

"My understanding was to strike out the case

Q. Were you able to do that?

A. No."

[16] In cross-examination the accused asked:

"Mr Pouono, since you are accusing me of bribing you to adjourn this trial for ever, the adjournment of the trial on the 17th of May, did I have any part in asking that favour?

A. No

.Q. So not at any time did I ask you to adjourn the case?

A. Not directly, no.

Q. Just your thoughts, that maybe $400 was given to you so you could adjourn the case?

A. Yes."

[17] The Crown also called evidence from Siosaia Halatanu, a former Inspector of Police who had retired earlier this year after 32 years with the police force. Inspector Halatanu had been the investigating officer in the present case. He told the court that the accused had denied trying to bribe Mr Pouono. In his written statement to the police, which was produced as an exhibit, the accused said that when he settled the civil case for $2000 he told his client, 'Elone Matakaiongo, that he would give him $1000 and that he and Mr Pouono would have $500 each of the remaining $1000. He said that it was in his nature to do something like that.

The defence case

[18] The accused arranged for the Court file relating to the civil case to be produced. It showed that on 6 April 2005 a formal settlement memorandum was signed by Mr Tu'ivai on behalf of the plaintiff, Mr 'Elone Matakaiongo, and Mr Pouono on behalf of the defendant, the Kingdom of Tonga. The memorandum provided that the defendant would pay the plaintiff $2000 without any admission of liability and that it would repair the damage inflicted on the plaintiff's vehicle. The court was duly informed of the settlement at a chambers hearing on 13 April 2005. No order was made as to costs.

[19] In his evidence, the 46 year-old accused said that he obtained a Diploma in Legal Studies from the University of the South Pacific in 1992 and over the last 14 years he has practised law in Tonga appearing in the Magistrates' Court, Supreme Court and Court of Appeal. He explained that he is also a farmer and he runs a handicraft business. He has been suspended from practising law since he was charged in connection with the present case back in June 2005. He said that he and his wife were divorced in 2002 but they later got back together but finally separated around the time of the events giving rise to this prosecution. He has a young foster son.

[20] The accused explained to the court in some detail how it was that he came to give the $400 cheque to Mr Pouono. He said that after he had settled the civil case for $2000 in April 2005 he had a talk to his client in front of Mr Pouono while they were standing under the verandah outside the Chief Justice's Chambers. He said that he explained to Mr Matakaiongo that the case had settled and they would not have to go to trial. He told his client that $2000 would be paid to him (the accused) of which $1000 would be given to him (the client) and the other $1000 would be for himself and he would share half of it with Mr Pouono.

[21] The accused said that nothing further then happened regarding the settlement until the morning of 17 May 2005 when he appeared, along with the others, before Mr Justice Thomas for what was going to be the first day of the trial in the Customs case. The accused said that after the Crown obtained the adjournment that day Mr Pouono took him aside and told him that the voucher for the $2000 settlement in the civil case had been issued and was back at his office ready to be collected. He said that he then walked back to the Crown Law Office with Mr Pouono and he waited while the clerk obtained the voucher for him. He related how, while they were waiting, Mr Pouono was called into the Solicitor General's office and when he returned he told the accused that she was upset at him for not having gone ahead with the trial that day. The accused said that they continued to talk in Mr Pouono's office until the clerk eventually returned and asked him to come and sign the delivery book so that he could uplift the voucher. When those various propositions had earlier been put to Mr Pouono in cross-examination, he had denied them. He said that he had not invited the accused back to his office on the 17th of May to pick up the voucher.

[22] The accused said that before he left the Crown Law Office that morning he told the girls at the office that he would shout them lunch. He said that he then walked back to his car which he had left parked at the court and drove over to Treasury to exchange the voucher for cash. He was not able to collect the cash, however, until later in the day. The accused produced as an exhibit the voucher in question. It was dated 17 May 2005 and his bank statement, which he also produced, showed that the money had been paid into his account also on that same day.

[23] After he uplifted the money from Treasury on 17 May, the accused said that he drove over to his client's house at Houmakilikao and gave him a cheque for $750 because he had decided to deduct a further $250 to cover court filing fees and other expenses. He said that his client then asked him to drive him into town so that he could cash the cheque and the accused did so. His client then refused to take the $750. He said that all he was really interested in was in having his vehicle repaired. The accused's three-year-old foster son was in the car at the time and the client threw him $150 in cash and he would not take it back. In the end, the accused was able to persuade him to take $50 back leaving the client with $650 which he was obviously very happy with.

[24] The accused told the court that he had not forgotten the promise he had made to Mr Pouono to give him half but he was busy with his other non-legal activities at the time and, as he knew he would be seeing Mr Pouono again at the Chambers hearing scheduled for the 27th of May, he decided that he would give him the money then. Referring to what happened outside the Chief Justice 's Chambers on the morning of the 27th of May, the accused said that while he was sitting on the seat with Mr Pouono he took out his cheque book, wrote out the cheque for $400 made out to cash and gave it to Mr Pouono. He said that when he gave it to him he simply told him that he had cashed the voucher and this was the lunch money he had promised. He told him he just wanted to be fair with him because he had promised him the money. He said Mr Pouono looked at it, said "thanks" and then put the cheque in his shirt pocket. The accused told the court that he really appreciated what Mr Pouono had done in agreeing to settle the civil case out of court because the only clients who came to him were those who had no money and they saw him as the last lawyer who could help them.

[25] The accused also said that he told 'Ofa Pouono at the same time that he would later give the girls from his office $100 for their lunch. He said that sometime after that when he was driving his van in town one day he met two of the girls from the Crown Law Office and they stopped him and asked him where the lunch money was that he had promised them. He said that one of the girls, who he named as "Tu'itavuki", told him that she needed some money because she was making a polo (a food parcel wrapped in coconut leaves) for the Free Wesleyan Church conference in Ha'apai and she asked him if he could make a donation. The accused agreed and instead of writing out the one cheque for $100 he made out two cheques for $50 each and he told her that one cheque was his donation to the polo and the other was for her to buy lunch for the girls back at the office. He said that when he gave the cheque to Tuitavuki for the church food he made the facetious comment, "make sure that I'm the one who's going to get the blessings, not you."

[26] The accused was closely cross-examined by Mr Kefu over this evidence. He was asked where he got the name "Tuitavuki" from and he replied that he had asked the driver from Crown Law Office after the trial had commenced when he was proposing to issue a subpoena. It was then put to him that he was making all this part of his evidence up and he had not given any money to the girls. The accused stuck to his story. I will need to return to this evidence.

[27] For completeness I should record that the accused also called evidence from a senior law practitioner, Mr Tu'utafaiva, and from 'Elone Matakaiongo, his client in the civil case. Mr Tu'utafaiva confirmed that he acted for Hon Veikune in the Customs case. Ironically, Mr Pouono is now employed by Mr Tu'utafaiva. The accused asked Mr Tu'utafaiva about the two conversations that had figured so prominently in this trial, the first on 17 May while waiting in court for Mr Justice Thomas and, the second, outside Chief Justice Webster's Chambers on 27 May. In response, Mr Tu'utafaiva said that he recalled both conversations clearly and he went on to add, "to me personally, they were just jokes. They were not serious conversations."

[28] Mr 'Elone Matakaiongo made it clear to the court that he had never really been interested in obtaining damages in his claim arising out of the motor vehicle accident. His concern was to have his vehicle repaired as quickly as possible so that he could use it again for his farming work. In relation to the settlement of his civil claim, he told the court that he recalled having a conversation with the accused outside the Judge's Chambers on the day that he learned of the settlement. He said that another man was with them who he was able to identify in court as 'Ofa Pouono but he had not known at the time that Mr Pouono was the lawyer for the other side. He said that in the conversation Mr Tu'ivai told him that he would give him (Mr Matakaiongo) $1000 and the other party would repair his vehicle and the money that he (Mr Tu'ivai) would get, he would give some of it "to this guy" (meaning Mr Pouono). Mr Matakaiongo said that Mr Pouono would have overheard that conversation.

The law

[29] The allegation is that the accused paid $400 to 'Ofa Pouono, a person in the service of the government, as an inducement to abstain from executing his duty by adjourning sine die the trial of the Customs case. There is no dispute that the accused paid Mr Pouono $400 and that Mr Pouono was a person in the service of the government at the time.

[30] Before an accused can be found guilty of bribery of a government servant under section 51 of the Criminal Offences Act, the court needs to be satisfied beyond reasonable doubt that the accused's purpose in making the payment or offer was in order to incline or dispose the government servant to act contrary to his duty or, in other words, to act contrary to the accepted rules of honesty and integrity as a government servant. It is not essential for the Crown to show that the government servant did so act or even that he ever intended to do so. The essential feature in the offence is the intention of the accused; the intention with which he made the offer or payment. This involves an inquiry into the state of mind of the accused at the relevant time and that, in turn, involves a consideration of all the facts that have been established in evidence in order to ascertain whether those facts demonstrate that the accused's intention at the time he made the payment or offer was the intention attributed to him in the indictment.

Findings

[31] Towards the end of the evidence, there was an interesting development regarding the two girls from the Crown Law Office which gained some prominence as the case drew to its conclusion. Initially, the prosecutor was quite scathing of the accused in cross-examination about his contention that on the day he picked up his voucher in the civil case he had promised lunch to the girls at Crown Law. Mr Kefu was equally dismissive of the accused's claim that he had later given one of the two girls two cheques in the sum of $50 each -- one as a donation towards the food for her church conference, the other as a shout for the girls back at the office. Mr Kefu put it to the accused that these things simply did not happen and he was making the evidence up. Mr Kefu indicated that he would be calling evidence from the girls in question.

[32] The significance of this evidence, of course, is that if it was true then it would add support to the accused's story that the payment of $400 to Mr Pouono was simply a gratuitous payment from the proceeds of settlement of the civil claim in the same way that his payment to buy lunch for the girls at Crown Law was nothing more than a gratuitous gesture.. There is no way that a payment to the girls at Crown Law for lunch could be related to the Customs case and the prosecutor did not suggest otherwise.

[33] The accused produced in evidence his cheque-book which showed two butts for $50 cash each and his bank statement which showed that the two cheques had been presented on 22 and 24 June 2005 respectively. Prior to the luncheon adjournment on the final day of the trial, the accused obtained an order from the court requiring an officer from Westpac to appear and produce the two cheques in question in order to try and ascertain who had cashed them.

[34] When the hearing then resumed at 2 p.m. a witness from Westpac produced both of the cheques and told the court that they had been cashed by someone called "Tuiniua" as that name appeared on the reverse side of each. Tuiniua, as it turned out, was Keleni 'Itene Tuiniua, one of the girls from the Crown Law Office who the accused had spoken to in the street. The name "Tu'itavuki" which had been given to the accused by the Crown Law driver was Mele Tu'itavuki, the other girl who had been with Keleni at the time.

[35] Mr Kefu then called evidence in rebuttal from Keleni Tuinua and her colleague Mele Tu'itavuki. They denied having stopped the accused in the street. They claimed that it had been him who had called out to them. They said that they were on their way to buy some plastic wrappings for food for the church conference at Ha'apai and the accused had stopped his vehicle and asked them where they were going. They said that they walked over and stood by the door of his vehicle. Tu'itavuki told the court that she was standing behind Keleni and she could not recall what Keleni and the accused talked about. She said that she did not see any cheques being handed over.

[36] In her examination-in-chief, Keleni said:

" We both stood in front of Maseia's (a bookshop) beside 'Amini's (the accused's) vehicle and we talked to him.

Q. What did he tell you?

A. 'Amini asked us what we bought and we told him that we were buying something to wrap the food in -- some plastic stuff to wrap the food in.

Q. Plastic wrapper?

A. Yes.

Q. Did he ask you what the food was for?

A. No.

Q. What happened after you told him you were buying plastic wrapper?

A. Then he handed the cheque and I told him I could not accept the cheque and he said it's okay he's not going to let anyone know.

Q. Before he handed you the cheque did he speak to you?

A. Yes.

Q. What did he say?

A. Before he handed me the cheque he told me that $50 was his donation for preparation of the food and the other $50 is just for myself.

Q. Did you ask him for some money?

A. No.

Q. Did he tell you to give some money to the workers for lunch?

A. No.

Q. So what did you mean by saying you cannot accept the cheque?

A. Because at the time I knew the thing that had happened to 'Ofa Pouono but the reason I accepted was because he insisted me to take it.

Q. How many times did he tell you to take it?

A. Twice.

Q. Why did you take the cheques?

A. The reason why I took the cheques was not for any other reason but 'Amini told me to take them."

[37] It then emerged in cross-examination and re-examination that it was not until 25 minutes to two o'clock, on that same afternoon that Keleni gave evidence, that she admitted, for the first time, receiving the two cheques from the accused. In fact, earlier that same day when confronted by Mr Kefu she had apparently denied any knowledge of the cheques. It is fairly obvious, therefore, that her last-minute admission was made in the knowledge that an officer from Westpac was going to be producing the two cheques in question which would show her signature on the reverse side.

Conclusions

[38] Even before I heard the evidence about the involvement of the two girls from Crown Law, I was satisfied that the Crown case against the accused could not succeed. The prosecutor's contention that the accused paid $400 to 'Ofa Pouono in order to induce him to adjourn the Customs case sine die (or "forever" as it was put in submissions), simply defies common sense. The case was a high profile case in which one of the accused was the Speaker of the Legislative Assembly and a Noble of the Realm. As it turned out, Hon Veikune was stripped of his Title following conviction. It is inconceivable that any law practitioner could seriously believe for one moment that Crown counsel could somehow just make such a case go away. The Crown has failed to establish one of the essential elements of the charge namely, that at the time he paid across the money, the accused intended to bribe 'Ofa Pouono in the manner alleged in the indictment.

[39] For his part, the accused came across as a plausible witness and, with one or two exceptions which were of no real overall consequence in the end, I am satisfied that his recollection of the relevant events was both reliable and credible. Whilst the ethical issues involving the accused's dealings with his client's money in the civil case are of obvious concern, they have no bearings on the essential elements which I need to deal with in the present criminal case.

[40] My conclusion is that the Crown has failed to establish guilt on the part of the accused. On the contrary, I am satisfied and accept that the payment in question was made, as the accused contended from the outset, simply as a mark of appreciation, albeit a misguided mark of appreciation, for Mr Pouono's cooperation in settling the civil case. The accused is accordingly acquitted and discharged.