Robert Kaki Yabara v The State [1984] PNGLR 378

• Jurisdiction: Papua New Guinea
• Judge: Kaputin J:
• Judgment Date: 27 November 1984
• Court: Supreme Court
• Judgement Number: SC285

Full Title: Robert Kaki Yabara v The State [1984] PNGLR 378

Supreme Court: Pratt J, Bredmeyer J, Kaputin J

Judgment Delivered: 27 November 1984

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROBERT KAKI YABARA

V

THE STATE

Waigani

Pratt Bredmeyer Kaputin JJ

26-27 November 1984

CRIMINAL LAW — Particular offences — Judicial corruption — "Giving" benefit to magistrate — Effect on act in "judicial capacity" — "Judicial proceeding" — Effect on mind of recipient irrelevant — Magistrate hearing committal proceedings holder of "judicial office" — Money placed on magistrate's table — Conviction properly recorded — Criminal Code (Ch. No. 262), ss 118, 119.

CRIMINAL LAW — Sentencing — Offender Member of Parliament — Offence of judicial corruption — Responsibility to uphold law outweighing other factors.

Section 119 of the Criminal Code (Ch. No. 262) provides for the offence of judicial corruption where any person "corruptly gives, confers or procures or promises ... to, on, or for any person holding a judicial office, ... any property or benefit on account of any act or omission [anything done by him in his 'judicial capacity'] on the part of a person holding the judicial office".

Section 118, defines "judicial proceeding" as including "any proceedings had or taken in or before any court, tribunal or person, in which evidence may be taken on oath".

A Member of Parliament who was charged with seven offences of false pretences in relation to committal proceedings for which he had appeared before a magistrate of the District Court placed an envelope containing K140 in cash on the magistrate's table. He was convicted of an offence contrary to s. 119 of the Criminal Code and sentenced to four years imprisonment.

On appeal against conviction and sentence:

Held

(1) For the purposes of establishing the offence of "giving" a benefit or attempting to "give a benefit" under s. 119 of the Criminal Code, it is the state of mind of the accused at the time of the alleged offence which is determinative and the state of mind of the recipient is irrelevant.

(2) Accordingly, the fact that money in an envelope was placed on the table before a magistrate was sufficient evidence of a complete offence, regardless of whether the magistrate accepted the money or not.

(3) (Kaputin J. doubting) For the purposes of s. 119, a magistrate of the District Court hearing committal proceedings, is a person holding a "judicial office" and acting in a "judicial capacity".

Ex parte Cousens; Re Blacket (1946) 47 S.R. (N.S.W.) 145; and Ex parte Coffey; Re Evans [1971] 1 N.S.W.L.R. 434, not followed.

(4) For the purposes of establishing the offence under s. 119, not only must the person approached hold "judicial office" but he must be asked to effect some end favourable to the accused by acting in his judicial capacity, that is, carrying out his judicial functions.

(5) In the circumstances the conviction had been properly recorded.

(6) That the appellant is a Member of Parliament and had a heavy responsibility to maintain the law out-weighed other sentencing considerations and the sentence could not be said to be inadequate.

Cases Cited

Coffrey, Ex Parte; Evans, Re [1971] 1 N.S.W.L.R. 434.

Cousens, Ex parte; Blacket, Re (1946) 47 S.R. (N.S.W.) 145; 63 W.N. 228.

Huddart Parker and Co. Pty Ltd v. Moorehead (1909) 8 C.L.R. 330.

John Jaminan v. The State (No. 2) (1983) P.N.G.L.R. 318.

State v. Rush; Ex parte Rush [1984] P.N.G.L.R. 124.

Appeal

This was an appeal against conviction and sentence on a charge of judicial corruption contrary to s. 119 of the Criminal Code (Ch. No. 262).

Counsel

J. Gawi, for the appellant.

J. Byrne, for the respondent.

Cur. adv. vult.

27 November 1984

PRATT J: This is an appeal against conviction and sentence before the National Court on a charge that on a named date the appellant "corruptly gave to one Clement Malaisa then being a magistrate of the District Court in Port Moresby the sum of K140 in consideration that the said Clement Malaisa, in his judicial capacity aforesaid, would show favour to the said Robert Kaki Yabara in a criminal prosecution between the Police and Robert Kaki Yabara of Chuave." The section relied upon is s. 119 of the Criminal Code (Ch. No. 262). Apart from the appeal against sentence there were five main grounds of appeal against conviction. It turned out on the day, that ground 2, namely, "proof of the appointment of Mr Clement Malaisa" was abandoned. Suffice it to say in my view that on the first ground of appeal namely, "the learned trial judge, in his summing up, failed to direct himself on the question of whether the evidence of the State witnesses was sufficient in law to constitute the offence" must fail. The argument wasreally that the learned trial judge had failed to direct himself adequately on the onus of proof. It is true that his Honour refers to either believing the magistrate's evidence or believing the evidence of the appellant. However, at that part of his judgment his Honour is not really adverting to the onus of proof at all, but is merely pointing out that no matter what the remainder of the evidence in the case can or cannot do if he does not accept the evidence of Mr Clement Malaisa, then the whole of the prosecution case falls to the ground. With that assessment I would respectfully agree and I do not consider his Honour has fallen into any error in pointing out the obvious fact that either one or the other witness is telling the truth. This is not the same as the situation where a judge fails to direct himself, or a jury, that in the ultimate they have to be satisfied beyond a reasonable doubt of guilt and in so doing to constantly call to mind that it is not merely a question of saying one or the other witnss is lying, but may also be a question of being uncertain as to who is telling the truth. I do not perceive the learned trial judge to be dealing with this area of the law at all. In my view this point of appeal is misconceived.

As I said ground 2 has been abandoned, so I now come to ground 3. I again see no merit in the contention that the "State's evidence when accepted disclosed merely an attempt to give Mr Malaisa the sum of K140 in cash". The argument was developed that because Mr Malaisa did not accept the money then somehow or other, this has an effect on the "giving". I am afraid I am unable to appreciate the point being made by counsel here. It is what is in the mind of the accused at the time he put the envelope on the table which has to be determined by the learned trial judge, and not what was in the mind of the learned magistrate who was the receiver. Indeed I think that the whole weakness of learned counsel's argument here is disclosed when he in effect had to admit himself that for the point to succeed it is necessary to show not only is the accused guilty of felonious intent but so is the receiver. This is simply not what s. 119 deals with, and I do not think the point can be upheld.

The fourth submission is there was no real evidence of any criminal prosecution between the police and the appellant, except for Mr Malaisa's testimony that the appellant had appeared before him three times in relation to seven charges of false pretences which he, Mr Malaisa was to deal with by way of committal proceeding. Frankly, I cannot see that the production, say of the information, the court's working sheets and perhaps the affidavits in support of the charges could have advanced this matter one step further. The simple fact is, that the learned magistrate did say that he had been dealing with the appellant by way of committal proceedings in respect of false pretences charges and this statement was in no way challenged by the defence during the trial. Even if it had been challenged, the most that the production of the documents or material could have done, would have been in some way to corroborate the learned magistrate's statement. In any case, I think it is far too late in the day for this particula type of point to be taken now. The time for such a point to be made was at the trial and not on an appeal. However, that is not the essential matter. The essential point is there was adequate evidence of a criminal prosecution on the record, and the learned trial judge specifically referred to that material.

I now come to the fifth ground of appeal wherein Mr Gawi has mounted an intriguing argument based on the general proposition that because the task of a magistrate in committal proceedings is primarily an administrative one rather than a judicial one, and as "Mr Malaisa was acting in his executive capacity rather than in his judicial capacity", in relation to the proceedings already instituted against the appellant, therefore the charge cannot be sustained because Mr Malaisa was not acting in a judicial capacity. In short, he was performing an administrative task and not a judicial one. I think that fairly sums up point 5. The section itself reads as follows:

"119. Judicial corruption.

(1) In this section, 'holder of...