Police v Laulu [2020] WSDC 12 (20 May 2020)

IN THE DISTRICT COURT OF SAMOA
Police v Laulu [2020] WSDC 12 (20 May 2020)

Case name:	Police v Laulu
Citation:	[2020] WSDC 12
Decision date:	20 May 2020
Parties:	POLICE (Informant) v VAIVALI LAULU, male of Faala Palauli and Alamagoto (Defendant)
Hearing date(s):	17th February 2020
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Mata’utia Raymond Schuster
On appeal from:
Order:	Given that the prosecution in my consideration of the facts have not proven beyond a reasonable doubt the second element of the charge. That is, that the defendant upon receipt of the monies from the Vietnamese man did not have the necessary knowledge that the monies was a “bribe” to influence him to do an act or a benefit or reward for having done an act contrary to the spirit of section 137(1) of the Act. It is therefore not necessary to proceed to consider the third and fourth elements of the charge. The charge is accordingly dismissed.
Representation:	I. Atoa for the Informant M. Leung-Wai for the Defendant
Catchwords:	Police officer – accepted monetary bribe
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 132; 137(1).
Cases cited:	Attorney General v Isaako [1996] WSSC 17; Misc 20248; Cooper v Slade [1858] EngR 546; 10 ER 1488 (HL) Field v R [2011] NZSC 129 Police v Pouvi [2000] WSSC 43; Police v Timai [1999] WSSC 49 Police v Van Dung [2019] WSDC 13; R v Hennigan [1971] 3 All ER 133; R v Parker (1986) 82 Cr App 69; Smyth v Police [1973] NZLR 56.
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

VAIVALI LAULU, male of Faala, Palauli and Alamagoto.

Defendant

Counsels: Iliganoa Atoa for prosecution.
Aumua Ming Leung Wai for the defendant

Hearing: 17th February 2020
Decision: 4 May 2020 delivered 20 May 2020

RESERVED DECISION

1. The accused is charged that “... on 22^nd July 2019 at Samoa Police Headquarters at Apia, the defendant being a law enforcement officer, namely a Police Officer, corruptly accepted monetary bribe of $50ST for himself in respect of any act done by him, namely assisting the first defendant (Tran Van Dung) in his visitations to his alleged wife / female relative” pursuant to section 137(1) of the Crimes Act 2013 (hereinafter referred to as the Act).

The Law

2. Section 137(1) of the Act provides:
   • 137. Corruption and bribery of law enforcement officer – (1) A law enforcement officer is liable to imprisonment for a term not exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or herself or any other person in respect of any act done or omitted, or to be done or omitted, by him or her in his official capacity.
3. Section 132 of the Act prescribes the meaning to be given to the terms:
   • “bribe” means any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect;
   • “corruptly” means a person acts corruptly in relation to any bribe where he or she knows or is reckless to the fact that the bribe is intended to influence the person bribed to act or omit to act in breach of any oath of office, or otherwise than in accordance with his or her legal obligations or duties in relation to any public office;
   • “official” means any person in the service of the Government of Samoa (whether that service is honorary or not, and whether it is within or outside Samoa), or any member or employee of any local authority or public body.
4. The prosecution has brought the charge against the defendant and carry the burden of proving the charge. That proof must be satisfied beyond a reasonable doubt if a conviction is to be successful against the defendant. It is not necessary nor is the defendant compelled to answer the charge for he is by law innocent until proven guilty.
5. For a conviction under this charge to be made, the prosecution must prove that the defendant had acted “corruptly” where he must have known or believed that the alleged monies paid to him was done because he had provided or it was anticipated that he would provide assistance in his capacity as a Police Officer for Mr Tran Van Dung (the giver of the alleged bribe) to have access to his wife or relative in Police custody.
6. The relevant elements therefore that the Prosecution must prove in support of the charge are:
   • (i) That the defendant must be an “official” within the definition prescribed under section 132 of the Act;
   • (ii) That the defendant accepted or obtained, or agreed or offered to accept or attempted to obtain, any bribe (as defined under section 132 of the Act) for himself or any other person;
   • (iii) That the conduct in ii. above must have been carried out “corruptly” as defined in section 132 of the Act; and
   • (iv) That the corrupt conduct in ii. above must have been done in respect of any act done by him in his official capacity.
7. Mr Leung Wai in the course of the hearing did not oppose identification of the defendant and the fact that the defendant was an “official” being a law enforcement officer. Mr Leung Wai only put forward two objections:
   • (i) that the defendant did not accept or received the monies;

(ii) if he did accept or received the monies, it was a gift of token value invoking the de minimis defence, i.e., that it was too trivial or minor to merit consideration.

8. The prosecution called six (6) witnesses: Roy Wong Ling, Constable Ziggy Orepa Pula, Constable Pisa Seia, Superintendent Norman Tuafale, Superintendent Samuelu Afamasaga and Corporal Valaauina Tuamu.

Roy Wong Lee

9. Roy Wong Lee is a 27 years old male of Alafua, married and works as Prince Mart shop at Leone. Roy testified that on 22 July 2019 at about 2pm, he went with Mr Lee the owner of Dirco and the shop at Leone to accompany him to pick up a Vietnamese man from the Fagalii airport. From there, they went to the Police Station to see this Vietnamese man’s wife who was held in custody for possession of “ice”. Before entering the police station, the Vietnamese man handed Roy $50 for favours to assist in the release of his wife as they wanted to return to Pago the next day.
10. So far as the defendant is concerned, Roy’s testimony does not mention the defendant but sets the scene leading to the alleged offence. Mr Leung Wai objected to the hearsay evidence from Roy’s testimony relating to what the Vietnamese man said as the prosecution were not calling him as a witness. The objection was not contested by the prosecution and Roy’s reference to what the Vietnamese said or did was struck out from the record.
11. The only other relevant part of Roy’s evidence is in relation to Constable Pisa whom came to inform them that there was no way the Vietnamese man was able to see his wife as she was under police investigation. Roy then gave Constable Pisa the food that they had brought for the Vietnamese mans wife.
12. Roy further testified that a senior police officer later came and escorted the Vietnamese man inside the secured rooms. It was about 5 minutes when the Vietnamese man came out again. But as they were about to get in their vehicle, the same senior police officer came and escorted the Vietnamese man back into the Police station. The Vietnamese man came out about 10 minutes later and they left.

Corporal Ziggy Orepa Pula

13. Corporal Pula is a female Police officer assigned to the CID with eight years service. Corporal Pula was involved with the investigation of the Vietnamese woman. Corporal Pula testified that she completed interviewing the Vietnamese woman and charged her just after 7pm of the 22 July 2019. She waited with the Vietnamese woman and Corporal Valaauina Tuamu, the Investigating Officer (IO) of the matter, inside the General Policing Division for the arrival of the Commissioned Officer (CO) Superintendent Norman Tuafale taking over the night shift supervision so that the charges against the Vietnamese woman can be endorsed.
14. Corporal Pula testified that as they waited, the defendant came with a plate of food for the Vietnamese woman from her husband. The defendant then left and Corporal Pula did not know where the defendant went. The next time she saw the defendant was after CO Tuafale had arrived and endorsed the charging documents for the Vietnamese woman. As Corporal Pula was escorting the Vietnamese woman to the Watch House, the defendant was seen standing on top of the steps leading to the entry/exit doors located between the Watch House and the General Policing Division.
15. Corporal Pula testified the Defendant called out to her whether there was time for the Vietnamese man to see and talk to his wife. Corporal Pula then passed on the request to CO Tuafale. CO Tuafale approved the request on the condition that there must be “no talk, just hug, no talk” as Superintendent Samuelu already instructed that no access to the Vietnamese woman can be allowed. Corporal Pula witnessed the meeting of the Vietnamese couple inside the General Policing Division along with CO Tuafale, Corporal Valaauina and Corporal Pula. The defendant was standing just outside from the exit doors from where he called to Corporal Pula.
16. Under cross examination, Corporal Pula agreed that it was not unusual or illegal for people to come and see family members held in custody and it is common practice tha they be allowed to do so.

Constable Pisa Seia

17. Constable Seia is a 31 years old male assigned to the CID and has 8 years’ experience as a Police Officer. Constable Seia worked from 21 to the 22 July 2019 on a 24 hours shift. On the morning of 22 July 2019, the CO Leiataua Samuelu instructed Corporal Valaauina to be IO and for Constable Seia and Corporal Pula to assist in the investigation of the Vietnamese woman. As they were about to escort the Vietnamese woman to hand over to the Watch House, CO Samuelu came in and instructed Constable Seia to inform the husband of the Vietnamese woman that he cannot see his wife but for the food to be received for her.
18. Constable Seia relayed the message to the Vietnamese man whilst the Samoan man was standing next to him. While they were conversing, CO Samuelu called out to Constable Seia to take the Vietnamese man to the CID and get a copy of his passport and advise him he cannot see his wife. Upon completion of taking a photocopy of the Vietnamese mans passport and as they were walking out of the CID, Constable Seia met up with the defendant and passed the food to take to the Vietnamese woman.
19. When Constable Seia returned to the General Policing section, he saw sitting at the table Senior Sergeant Valaauina (as he then was), the Vietnamese woman eating her food, the defendant and Corporal Pula. Constable Seia said the reason the defendant was there was due to the food that he had handed to him to give to the Vietnamese woman.
20. Constable Seia testified that he relayed to the IO Valaauina that the Vietnamese man wanted to see his wife if there was any chance that he could talk to her. However, he had already told him that he could not as instructed by Superintendent Samuelu. It was not long after that CO Tuafale arrived and Valaauina informed him of the case and the request from the Vietnamese man to see his wife. Corporal Seia heard CO Tuafale enquire as to what were the instructions given in relation to the Vietnamese man’s request and Valaauina responded that Superintendent Samuelu denied the request. It was then that Constable Seia left the room.
21. Under cross-examination, Constable Seia agreed that the defendant was not part of the investigating team in the Vietnamese woman’s case.

Superintendent Norman Tuafale

22. Superintendent Tuafale has been in the police service for 22 years and now looks after Forensics Division. Tuafale testified that he arrived in the evening of 22 July 2019 to take over supervision of the shift from 8pm to 8am the following day. He was met by Valaauina followed by Constable Seia, the defendant and Corporal Pula.
23. Tuafale was aware of the request from the Vietnamese man to see his wife from Valaauina. He testified that he contacted Superintendent Samuelu who then allowed the Vietnamese man to see his wife briefly before she is taken into the Watch House. Tuafale testified that he informed the Commissioner and the IO of the decision so that everyone understood what was happening.
24. Tuafale further testified that he and Valaauina were discussing the Vietnamese man’s request inside the Watch House whilst Corporal Pula was sitting at the table.
25. Under cross-examination, Tuafale agreed with Mr Leung Wai that the process in allowing the meeting between the Vietnamese man and his wife was not done illegally or outside the conditions that such allowances are normally made.

Superintendent Leiataua Samuelu Afamasaga

26. Superintendent Afamasaga was in charge of the CID since June 2019. Superintendent Samuelu testified that the defendant was under his division until his suspension on 11 June 2019. Samuelu further testified that the defendant was on duty on the 22 July 2019.

Corporal Valaauina Tuamu

27. Corporal Valaauina Tuamu is a 40 years old male and currently is stationed at the Faleata Police Post. Valaauina testified that he was the IO of the Vietnamese woman’s case. On the 22 July 2019 at about after 6pm, they were awaiting the arrival of CO Tuafale to complete the paper works before the Vietnamese woman was handed over to Watch House. Valaauina testified that he was waiting with Corporal Pula, Constable Seia and the defendant who came in with the food for the Vietnamese woman. Just before the arrival of CO Tuafale, Constable Valaauina informed Corporal Valaauina as to the request of the Vietnamese man to see his wife.
28. It was about five minutes after Tuafale arrived and Valaauina informed him of the case and the request from the Vietnamese man to see his wife. Tuafale instructed Valaauina to allow just to meet but no conversation. However, as Valaauina was about to complete the processing of the Vietnamese woman, Tuafale told him to contact Superintendent Samuelu to allow the Vietnamese man to talk to his wife. Valaauina then called Superintendent Samuelu and Samuelu allowed them to meet under supervision but only for five minutes inside one of the interview rooms. Valaauina instructed Constable Seia to be present in the room.
29. Valaauina testified that after the meeting, the Vietnamese woman was handed over to Watch House by Corporal Pula and he walked out with Constable Seia through the entry doors between the Watch House and General Policing. It was there that he saw the defendant and the Vietnamese man standing. He then walked past and went inside the enclosed fenced area to smoke his cigarette followed by the defendant and the Vietnamese man.
30. As they were sitting down, the Vietnamese man asked him if he could come back later that night to bring some clothes for his wife. Valaauina said no he would have to wait the next morning. It was then the Vietnamese man handed Valaauina SAT$10 but Valaauina rejected it saying not to bribe him. The Vietnamese man then walked over to the defendant and put SAT$50 in the defendant’s hand.

CCTV Video was shown

31. Valaauina said that only he and the Vietnamese man were conversing and the defendant did not say anything. Valaauina clarified that the Vietnamese man handed the money to the defendant but it was not the case that the defendant reached out and grabbed the money.
32. Under cross-examination, Valaauina agreed that Constable Pisa informed him about the Vietnamese man’s request to see his wife. He further agreed that the defendant was not involved in the investigation of the Vietnamese woman.
33. At the close of the prosecution case, the defendant elected not to give evidence.

Discussion

34. Given Mr Leung Wai has conceded the first element, I will turn my focus on elements 2, 3 and 4 of the charge that the prosecution must prove beyond a reasonable doubt.
35. Mr Leung argues that there is no evidence that the defendant accepted the monies from the Vietnamese man. The relevant portion of Corporal Valaauina’s evidence is highlighted below:
    • Page 27 of Transcript:
    • Wit: o le taimi lena na tago ai loa ia le tama Vietnam ma aumai le tupe ia te a’u
    • Pros: e fia lena tupe
    • Wit: lau afioga pe $10 ea lau afioga, sa aumai le tupe ae ou teena sa ou fai i le tama lea e aua na te bribe ina a’u, o le tala a le tama lea sa fai mai ia te au, e leai e le o se bribe o le mea e fai ai le meaai, sa ou fai atu i le tama lea leai faafetai, i le taimi a lena lau afoga, sa agai mai ai loa ia le tama lea ma ave le isi tupe, savali mai tuu ia Vaivali ao le taimi lena la e nofonofo Vaivali i le isi o’u itu
    • Pros: na e iloa atu e fia le tupe lea na tuu ia Vaivali
    • Wit: mo le silafia e $50
    • Pros: na aumai mai fea lena $50 e le tama lea
    • Wit: na aumai ia te ia
    • Pros: na aumai ave ia Vaivali na a lea
    • Wit: ona uma loa lea alu ai loa lea o le tamaloa i le fale
    • Pros: ae o fea na oo ai le $50 lea na ave ia Vaivali
    • Wit: o le $50 lena sa tago a le tamaloa tuu i le lima o Vaivali
    • Pros: ia na ave la e Vaivali le tupe lea pe leai
    • Wit: ou te le i iloa pe na tago Vaivali ave lau afioga
    • Page 30 of the Transcript
    • Wit: mo le silafia o le taimi lena lea ua tago ai se’i le isi tupe taumafai ai e avatu ia a’u ou fai atu iai e leai, na savali ifo lea tuu ia Vaivali
    • Pros: o le a le mea lena ua tuu ia Vaivali
    • Wit: o le tupe lena lea sa
    • Pros: o e iloa atu la pe na ave e Vaivali le tupe lena pe leai
    • Wit: pei ona silafia na alu atu a le tamaloa tuu iai le tupe e le’i faapea na tago mai Vaivali avatu le tupe
    • Pros: ae la na tuu ia Vaivali le tupe
    • Wit: ia sao lelei
36. Corporal Valaauina on page 27 of the Transcript testified that the Vietnamese man put the money in the defendant’s hand but when asked later if the defendant accepted the money said that he did not know if the defendant took the money. Then on page 30 of the transcript during the showing of the CCTV video, Corporal Valaauina confirmed that the Vietnamese man put the money in the defendant’s hand but it was not the case that the defendant reached out and took the money. The money was left with the defendant.
37. On the facts, I find that the defendant accepted the monies from the Vietnamese man based on the evidence of Corporal Valaauina and the CCTV footage.
38. This however is not the end of the matter. The prosecution must also prove that upon receipt of the monies, that defendant accepted the monies corruptly for himself. That is, the defendant must have known or believed that the money received was received because the defendant had provided or it was anticipated that he would provide assistance to the Vietnamese man in his official capacity.
39. It is not necessary for the prosecution to show what the defendant did with the monies suffice to say that there was sufficient evidence that the defendant received a benefit or reward for his services (Field v R [2011] NZSC 129 see par 19). The benefit or reward in this case is the $50 I have found that was accepted by the defendant from the Vietnamese man.
40. Furthermore, it is not a material requirement that the prosecution show that the defendant was on duty on that particular day or part of the investigating team related to the Vietnamese woman’s case suffice to say that Mr Leung Wai conceded the fact that the defendant was an “official” pursuant to the Act. It is only necessary for the prosecution to show that the defendant knew and played a material part in the alleged bribe. As in the Field case, the Appellant was not even a decision maker of the Ministry of Immigration. However, he knew that the services he received on his property by the Thai nationals were provided in anticipation that the Appellant will use or used his parliamentary influence to facilitate the immigration application of the Thai nationals.
41. Did the defendant corruptly accept monies for himself? The New Zealand case of Field v R cited above and applied in the case of Police v Van Dung [2019] WSDC 13 provide relevant guidance to this question given the limitation of judicial precedents in Samoa on the matter. The Appellant Field was charged pursuant to section 103(1) of the Crimes Act 1961 New Zealand (hereinafter referred to as “CANZ1961”).
42. Section 136(1) of the Act is the mirror image equivalent of section 103(1) CANZ1961 except for the gender neutral reference inserting “herself” or “her” where relevant in the Act. This is unremarkable given the legislative history between Samoa and New Zealand where Samoa adopted many of the New Zealand legislations with necessary amendments before and after obtaining independence in 1962.
43. The charging provision in relation to this particular matter section 137(1) of the Act is the mirror image equivalent of section 104(1) of the CANZ1961 with same amendments as to gender. It is also no surprise that the definition of the term “bribe” is taken word for word from section 99 of the CANZ1961.
44. The significant difference in the Samoa provision from the CANZ1961 is that the term “corruptly” is distinctively defined in the Samoa Act and not in the New Zealand CANZ1961 (see paragraph 3 above). In particular, the definition of “corruptly” in the Act extends the definition to include a person being knowing or “... reckless to the fact that the bribe is intended to influence the person bribed to act or omit to act ...”. As to the meaning and application of the term “recklessness” in criminal cases in Samoa, see decision of Wilson J in Police v Timai [1999] WSSC 49 (13 May 1999) as applied in Police v Van Dung.
45. Justice William Young however in Fields Supreme Court appeal and providing the reasons of the court elaborated on the definition of the term “bribe” in paragraph [18] as:
    • “... customarily denotes a payment (or other benefit) which is provided (or offered) in order to influence the behavior of a public official or agent in a way that is contrary to recognized rules of probity. This sense of the word appears in the definitions in Black’s Law Dictionary: “A price, reward, gift or favour bestowed or promised with a view to pervert the judgment of or influence the action of a person in a position of trust”; and the Shorter Oxford English Dictionary: “A sum of money or another reward offered or demanded in order to procure an (often illegal or dishonest) action or decision in favour of the giver.”
46. As for the term “corruptly”, Justice Young adopted the definition as postulated in Willes J decision in Cooper v Slade [1858] EngR 546; 10 ER 1488 (HL) in paragraph 66 as being:
    • [66] While we are satisfied that the acceptance of gifts which are de minimis (as just explained) should not be considered corrupt under section 103(1), the acceptance of other benefits in connection with official actions is rightly regarded as corrupt irrespective of whether there was an antecedent promise or bargain. We do not accept that this approach means that the word “corruptly” in s103(1) is deprived of effect. In part it captures the requirement for a defendant to have acted knowingly. In the present case, this requirement required the Crown to establish that the appellant knew that the services he received were provided in connection with the immigration assistance he gave, meaning that he knowingly engaged in conduct which the legislature regards as corrupt” [bold and italics my emphasis].
47. Mr Leung Wai submitted that the definition of “corruptly” was correctly applied in the Trung Van Dung case charged under section 137(2) of the Act where the defendant was charged with “giving” bribe. However, the wording of the definition suggests that it does not apply in the circumstances to section 137(1) where the defendant is charged with “receiving” a bribe.
48. Mr Leung Wai is correct in his assessment of the definition so far as to the terms “knowledge” or “recklessness” with regard to the “intention to influence”. Although, as stated earlier above, the definition of “corruptly” makes section 132 of the Act distinct from the relevant sections in the CANZ1961, it is not inconsistent with the rationale and legislative history which modeled section 103 of the CANZ1961 that Samoa has adopted. Justice Young in paragraph [22] stated:
    • “... an “intent to influence” is an essential component of the s103(2) offence. In this context, the absence of such a requirement in the language used in s103(1) suggests very strongly that the legislature did not see liability as depending upon such an intention being present. As will become more apparent when we discuss the relevant legislative history, s103(2) is expressed in distinctly more narrow terms than the corresponding subsection in the provision which provided to model for s103.”
49. The fact that “corruptly” is generally defined in the Act may undoubtedly suggest that “knowledge or recklessness” applies generally to “any bribe” as defined. This is especially so when the definition or interpretation provisions of the Act in section 132 does not elaborate on the application of the definition of the term “corruptly” to Part 11 of the Act. However, that is not the case. The construction of the definition referring to “any bribe” as “intended to influence the person bribed” as worded in section 132 of the Act is clearly attributed and limited to the knowledge or recklessness of that of the giver and not the receiver. This approach is also consistent with the view of Justice Young in Field that the legal requirement burdening charges under section 103(1) CANZ1961 (the equivalent of section 137(1) of the Act) strongly suggests that “legislature did not see liability as depending on such an intention being present”.
50. In saying that, it does not follow that the definition of “corruptly” in section 132 of the Act deprives “corruptly” in section 137(1) of effect. The section establishes that the defendant knew or must have known that the money he received was provided in connection with the alleged assistance he gave meaning the he knowingly engaged in conduct which the legislature regards as corrupt

Knowledge of the defendant

51. The prosecution in this case therefore would have to establish that the defendant knew that the monies he received was provided in connection with the assistance he gave to enable the Vietnamese man to see his wife and the defendant knowingly engaged in conduct which the legislature regards as corrupt.
52. The evidence of the prosecution is contradictory so far as this requirement is concerned. The defendant was first identified in the evidence when Constable Seia by chance passed each other as Constable Seia was getting a photocopy of the Vietnamese man’s passport in the CID section. Constable Seia then gave the defendant the Vietnamese woman’s food to pass on. When Constable Seia went back to the General Policing section, he saw the defendant sit at the table with the Vietnamese woman eating her food, with Corporal Pula and Corporal Valaauina present. It was then Constable Seia passed on the request of the Vietnamese man to Corporal Valaauina. Upon CO Tuafale’s arrival, Constable Seia overheard Corporal Valaauina pass on the request to CO Tuafale and Constable Seia then left.
53. Corporal Pula testified that the first time she saw the defendant was when he came to bring the food for the Vietnamese woman as they were waiting for CO Tuafale. She did not know where the defendant left after dropping off the food. The next time she saw the defendant was at the steps leading to exit/entry doors when she was taking the Vietnamese woman to the Watch House. This is where he called to her if the Vietnamese man could see and talk to his wife while the Vietnamese man was standing at the bottom of the steps.
54. The next time Corporal Pula saw the defendant was after the Vietnamese couple met inside the General policing division while the defendant was standing outside beyond the exit/entry doors.
55. CO Tuafale testified that when he arrived to start the shift from 8pm to 8am the next day, he was informed by Corporal Valaauina of the matter. Present also at the time were Constable Seia, the defendant and Corporal Pula.
56. CO Tuafale testified that in the Watch House, Corporal Valaauina informed him as to the Vietnamese man’s request to see his wife. At the time, Corporal Pula was sitting on the other side. This suggests that there were only three of them when Corporal Valaauina informed CO Tuafale of the Vietnamese man’s request. After consulting Superintendent Samuelu and informing the Commissioner, CO Tuafale informed Corporal Valaauina to allow the Vietnamese man to see his wife but “no talk, just hug, not talk”.
57. Corporal Valaauina testified that they (he, Corporal Pula and Constable Seia) were waiting for CO Tuafale at the General Policing area when the defendant arrived with the Vietnamese woman’s food. It was during this time that Constable Seia informed him of the Vietnamese man’s request to see his wife. Upon the arrival of CO Tuafale about five minutes later, he informed CO Tuafale as to the case of the Vietnamese woman and her husband’s request for an opportunity to see her.
58. The evidence of Constable Seia and Corporal Valaauina place the defendant inside the General Policing section when Constable Seia informed Corporal Valaauina as to the Vietnamese man’s request. CO Tuafale says that the defendant was present when he arrived but when Corporal Valaauina informed him of the Vietnamese man’s request, they were in the Watch House and the only other person present was Corporal Pula. This is contradicted by Constable Seia and Corporal Valaauina who said that they were all present when Corporal Valaauina informed CO Tuafale of the Vietnamese man’s request.
59. Corporal Pula says that the defendant made the request to her and she passed it on to CO Tuafale. Corporal Valaauina, Constable Seia or CO Tuafale made no mention that Corporal Pula passed on a request from the defendant for the Vietnamese man to see his wife. It is not illogical that four persons may have witnessed the same facts at the same time but have differing perceptions of those facts. This means that either they could all be telling the truth but for parts of their individual evidence that appears contradictory or one is telling the truth and the other is not.
60. In a situation such as this, I must consider subject to the rules of evidence what evidence is to be accepted and what evidence is to be disregarded as unfounded.
61. In this case, I accept the evidence of Constable Seia, CO Tuafale and Corporal Valaauina that it was Constable Seia that first informed Corporal Valaauina of the Vietnamese man’s request without any involvement of the defendant. If the defendant did make a request for the Vietnamese man to see his wife as witnessed by Corporal Pula, it would have been after CO Tuafale had already made the decision allowing the Vietnamese man to see his wife.

Acceptance of monies

62. The evidence of Corporal Valaauina and the CCTV footage are the only pieces of the prosecution’s evidence relating to this part. The question to be determined is this: at the time the defendant accepted the monies, was it with the knowledge that it was a benefit or reward for the services the defendant provided in his capacity as a police officer facilitating the meeting between the Vietnamese man and his wife or in anticipation of future services?
63. The prosecution submit that the offence lay not in showing favour to the application but in accepting a “reward” for doing so [see R v Parker (1986) 82 Cr App 69]. The prosecution submits that there is evidence to draw an inference as to the defendants knowledge:
    • (i) the defendant was present that day;
    • (ii) he must have been aware that the Vietnamese man was there to see his wife who was in custody; and
    • (iii) he must have been aware that Superintendent Samuelu Afamasaga gave instructions that no access was to be allowed.
64. In assessing the prosecutions submission on the supporting evidence to the standard required, the first part is not disputed by Mr Leung Wai. However, there are evidential problems with the second and third conclusions. The actual evidence suggests that the defendant may have only been aware of the Vietnamese man’s purpose after CO Tuafale made the decision to allow the Vietnamese man to see his wife. There is no evidence that the defendant met the Vietnamese man before Constable Seia informed Corporal Valaauina as to the Vietnamese man’s request. Even when the defendant was present in the General Policing whilst waiting for CO Tuafale, there is no evidence he made any representation on behalf of the Vietnamese man except for Constable Seia.
65. It is only the evidence of Corporal Pula that suggests that the defendant had knowledge of the Vietnamese man’s request after CO Tuafale endorsed the Vietnamese woman’s charge sheets. This also means that CO Tuafale was already made aware by Corporal Valaauina of the Vietnamese man’s request. I find no evidence to draw otherwise that the defendant had knowledge of the Vietnamese mans purpose prior to CO Tuafale allowing the Vietnamese man to see his wife and it was materially the defendants conduct that procured the necessary result for the Vietnamese man. As indicated earlier above in this judgment, I have preferred the evidence of Constable Seia, CO Tuafale and Corporal Valaauina in favour of the defendant over Corporal Pula where a potential conflict in a material part of the evidence could not be reconciled.
66. Given my view of the evidence, it also follows that I am doubtful as to whether the defendant provided any service at all. But even if he did have knowledge of the Vietnamese man’s request and did do a positive act to facilitate that request, i.e., made the request known to Corporal Pula, the evidence suggests that it was only after CO Tuafale made the decision to allow visitation.
67. But this raises a different question: whether the fact that CO Tuafale made the decision to allow visitation before the defendant did any alleged positive act to achieve the desired result absolve the defendant of culpability? This is the novus actus interveniens legal principle. This would only arise if there is a finding that the defendant was culpable but that culpability was broken because of another independent intervening act. The question would be “but for the actions of the defendant, would the result have occurred”?
68. In Attorney General v Isaako [1996] WSSC 17; Misc 20248 (19 February 1996), a negligent driving causing death appeal on acquittal to the Supreme Court, Sapolu CJ dealt with this legal principle of novus actus interveniens and stated:
    • “If the fatal injuries were sustained by the deceased at, the time of the collision then the defendant's negligent driving was the sole cause of death. If on the other hand the fatal injuries were sustained at the time the deceased was hooked and dragged along under the pick-up vehicle, then the defendant's negligence was a contributing cause although not the sole cause of death. It is not necessary that; the defendant's negligence be the sole cause of death; so long as it is one of the contributing causes and was something more than de minimis then that is sufficient even though the conduct of some other person also contributed to the death of the deceased: R v Hennigan [1971] 3 All ER 133; Smyth v Police [1973] NZLR 56”.
69. On the evidence, I would answer the question in the affirmative. The conduct of the defendant did not procure the result, i.e., enabling the meeting between the Vietnamese man and his wife. The evidence further suggests that the meeting would have occurred in any event without the assistance of the defendant given that it was acceptable practice subject to conditions to allow visitations for persons temporarily held in police custody subject to the approval of an authorized officer. The request that facilitated the meeting was made via Constable Seia going through the normal chain of command process.
70. As to the prosecutions third conclusion, there is no evidence that would invoke the required consideration of an inference to draw such a conclusion. Superintendent Afamasaga did not give evidential testimony on this issue nor did any of the other witnesses including Corporal Pula that the defendant was aware of such instructions yet proceeded to act contrary to those instructions.
71. If that be the evidence, it appears then that the defendant may be exonerated from this charge given that he could not have had the necessary knowledge that the benefit or reward of $50 he received was pursuant to an alleged service he provided in his official capacity to enable the Vietnamese man to see his wife.
72. Is it necessary then to answer the remaining question: why did the defendant accept the monies if it were not for a reward or benefit as to the alleged service he provided to enable the Vietnamese man to see his wife? In this judgment, it is not necessary to do so to further prolong the end result of this charge against the defendant. But for completeness, it can only be inferred from the circumstances in favour of the defendant that he accepted the monies not corruptly but as an unexceptionable token gift.
73. The defendant was a fortunate and undeserving recipient of a benefit or gift having not done any act to warrant its receipt. Notwithstanding Corporal Valaauina rejecting SAT$10 from the Vietnamese man labelling the handout as a bribe, there is no evidence that suggests that the defendant was aware even at this point as to the reasons why and the circumstances upon which Corporal Valaauina rejected the monies. The prosecution submit that an inference can be drawn the acceptance of the monies by the defendant is circumstantial evidence that the defendant was materially involved in bringing about the necessary result and engaged in conduct which the legislature regards as corrupt.
74. That may very well be the case if that be the only reasonable or rational inference that can be drawn from the facts (Police v Pouvi [2000] WSSC 43 (6 June 2000)). But that goes against the prosecutions own direct evidence from its witnesses as referred to above.
75. It must be borne in mind that exonerating the “receiver” does not necessarily absolve the “giver” arising from the same transaction. Justice Young in paragraph [21] states:
    • “If (as the appellant maintains) the offence of committing a bribe can be committed only if the benefit was accepted either before the acts or omissions or pursuant to an antecedent offer or agreement, the Member of Parliament could be convicted only if the person providing the bribe was liable to conviction under s103(2). If Parliament had intended this result, there was no point in defining the s103(1) offence more broadly than the s103(2) offence.”
76. As Justice Young puts it in paragraph [66], the fact that there are exceptional circumstances that the acceptance of gifts which are de minimis should not be considered corrupt under section 103(1) does not deprive the word “corruptly” of its effect.
77. Alternatively, if I am wrong in my assessment of the knowledge of the defendant based on the facts, the circumstances of this case would have warranted a legitimate legal defence that the benefit or reward was de minimis.

Conclusion

78. Given that the prosecution in my consideration of the facts have not proven beyond a reasonable doubt the second element of the charge. That is, that the defendant upon receipt of the monies from the Vietnamese man did not have the necessary knowledge that the monies was a “bribe” to influence him to do an act or a benefit or reward for having done an act contrary to the spirit of section 137(1) of the Act. It is therefore not necessary to proceed to consider the third and fourth elements of the charge.
79. The charge is accordingly dismissed.
    

DCJ SCHUSTER