The State v Waesa Mollo [1988] PNGLR 49

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ
• Judgment Date: 06 May 1988
• Citation: [1988] PNGLR 49
• Court: National Court
• Year: 1988
• Judgement Number: N664

Full Title: The State v Waesa Mollo [1988] PNGLR 49

National Court: Kidu CJ

Judgment Delivered: 6 May 1988

1 Criminal law—meaning of corruptly giving or corruptly receiving under s87 Criminal Code

CRIMINAL LAW—Particular offences—Official corruption—Elements of offence—Need to prove corrupt use of particular office for gain—Need to prove duty imposed by holding of office—Criminal Code (Ch262), s87(1)(a) and (b).

CRIMINAL LAW—Particular offences—Official corruption—Separate changes of corruptly giving and corruptly receiving—Charges arising out of same facts—Charges stand or fall together—Criminal Code (Ch262), s87(1)(a) and (b). [1988] PNGLR 49 at 50].

Held:

(1) Where a person being a public servant is charged with the offence under s87 of the Criminal Code (Ch262) of corruptly asking, receiving or obtaining any property or benefit of any kind for himself on account of anything done or to be done by him in the discharge of the duties of his office, proof is required of the duty imposed by the holding of the particular office and the corrupt use of the particular office held for gain.

R v David [1931] QWN 2, and the The State v Peter Kirivi [1987] PNGLR 489, followed and applied.

(2) Where a person is charged under s87(1)(a) with corruptly receiving as a public servant and a person is charged under s87(1)(b) with corruptly giving to that public servant, the evidence must support both charges; if the evidence does not support one charge the other charge will not be proved.

(3) In circumstances where a public servant, being a member of the Defence Force, was charged with corruptly receiving moneys in connection with his duties as Chairman of the Papua New Guinea Defence Force Savings and Loan Society, a body established under the Savings and Loan Societies Act (Ch141), the charge had not been made out because his duties as Chairman were not those of a public servant but rather those of an official of a private corporation and the receipt of moneys was not in connection with the corrupt use of any office held in the Public Service.

Cases Cited

The following cases are cited in the judgment:

R v David [1931] QWN 2; 25 QJPR 15.

The State v Peter Kirivi [1987] PNGLR 489.

Trial

On a trial on charges of corruptly giving and corruptly receiving moneys contrary to s87(1)(a) and (b) of the Criminal Code (Ch262), Kidu CJ delivered the following judgment on acquittal and discharge of the accused.

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Kidu CJ: The two accused persons are charged under s87(1) of the Criminal Code, (Ch262) which provides as follows:

"87. Official corruption.

(1) A person who—

(a) being—

(i) employed in the Public Service, or the holder of any public office; and

(ii) charged with the performance of any duty by virtue of that employment or office, (not being a duty touching the administration of justice),

corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of any thing done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,

is guilty of a crime.

Penalty:...