Stanley Japele v The State
| Jurisdiction | Papua New Guinea |
| Judge | Kariko J,Kassman J,Miviri J |
| Judgment Date | 01 September 2023 |
| Neutral Citation | SC2454 |
| Citation | SC2454, 2023-09-01 |
| Counsel | Mr F Kuvi, for the Appellant,Mr R Luman, for the Respondent |
| Docket Number | SCRA NO. 49 OF 2022 |
| Hearing Date | 28 March 2023,26 May 2023,01 September 2023 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NO. 49 OF 2022
Stanley Japele
Appellant
v.
The State
Respondent
Waigani: Kariko J, Kassman J & Miviri J
2023: 28th March, 26th May & 1st September
CRIMINAL LAW — appeal against conviction and sentence — official corruption, 87(1)(a)(i) & (ii) Criminal Code — payment of money to policemen to release suspect from police custody — proof of — elements of the offence — meaning of “duty”
CRIMINAL LAW — evidence — credibility of witnesses — accomplice evidence — who is an accomplice — uncorroborated evidence of accomplices — caution
The appellant was a policeman who was convicted on a charge of official corruption, and he was sentenced to five years imprisonment and ordered to pay restitution. In his appeal against conviction, he argued that the evidence did not prove the alleged offence against him. In his appeal against sentence, he claimed that the sentence was manifestly excessive.
Held:
(1) The term “duty” in s 87(1)(a) refers to the specified or designated duties of the particular office or position held by a public servant or public officer: The State v Peter Kirivi [1987] PNGLR 489 and The State v Mollo [1988] PNGLR 49 referred to.
(2) An accomplice is a person privy to the criminal intent of the accused: The State v Nataemo Wanu [1977] PNGLR 152 and The State v Amoko-Amoko [1981] PNGLR 373.
(3) Failure of trial judge to warn itself of the danger of convicting on the uncorroborated evidence of an accomplice renders the conviction unsafe and unsatisfactory: Saka v The State (2021) N9250.
(4) The conviction was unsafe and unsatisfactory, and it entailed errors on points of law, resulting in a miscarriage of justice.
(5) Appeal against conviction upheld.
Cases Cited:
Papua New Guinean Cases
Emos v The State (2017) SC1658
Hagena v The State (2017) SC1659
Havila Kavo v The State (2015) SC1450
Japele v The State (2022) N9552
Private Nebare Dege v The State (2009) SC1308
Saka v The State (2021) N9250
State v Gamato (2021) N9250
State v Nataemo Wanu [1977] PNGLR 152
State v Robert Konny (2012) N4691
The State v Amoko-Amoko [1981] PNGLR 373
The State v Dau (2022) N9508
The State v Doreen Tatut (2021) N9023
The State v Francis Laumadava [1994] PNGLR 291
The State v Gigina (2018) N7378
The State v Hetinu (2022) N9590
The State v Kara (2018) N7360
The State v Mako (2006) SC889
The State v Mollo [1988] PNGLR 49
The State v Peter Kirivi [1987] PNGLR 489
Overseas Cases:
McNee v Kay [1953] VicLawRp 2; [1953] V.L.R. 520
R v David [1931] QWN 2; 25 QJPR 15
Counsel:
Mr F Kuvi, for the Appellant
Mr R Luman, for the Respondent
Francis Kuvi & Associates: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent
APPEAL
This is an appeal against conviction and sentence on a charge of official corruption.
1st September 2023
1. BY THE COURT: The appellant Stanley Japele was convicted on 4 March 2022 on one count of official corruption, an offence under section 87(1)(a) of the Criminal Code. It was alleged that as a policeman he asked for and received money to release a suspect from police custody. He was sentenced on 15 July 2022 to five years imprisonment in hard labour and further ordered to pay restitution of K5,000 to one Onne Bari. See Japele v The State (2022) N9552.
2. Aggrieved by the decisions, the appellant filed his Notice of Appeal from conviction on 19 August 2022, and his Notice of Appeal from sentence on 18 October 2022 after being granted leave to appeal.
3. This is the Court's decision on the appeals.
BACKGROUND
4. The appellant was a policeman having joined the Police Force in 1996. At the time of the alleged offence, he held the rank of Sergeant and was attached to the Major Crimes Division in Police HQ in Konedobu, NCD, but he was then assisting the Boroko Criminal Investigation Division (CID) with the investigations of some major cases.
5. Other persons who featured in the circumstances leading to the appellant being criminally charged were:
• Aaron Cui, (“Cui”) a businessman operating business in NCD with no prior connection in any manner with the appellant.
• Onne Bani, (“Bani”) also a businessman and associate of Cui and a friend of F/Const Bari but with no prior connection in any manner with the appellant.
• First Constable Paul Bari (“F/Const Bari”), a police officer based at Waigani Police Station, NCD, but attached to the Investigation Task Force and a friend of Bani.
• Jonathan Oata, (“Oata”), a friend of Bani who knew Const Gene but with no prior connection in any manner with the appellant.
• Constable Moses Gene (“Const Gene”), a police officer at Hohola Police Station, NCD.
• Michael Xu (“Xu”), a businessman and a friend of Bani but with no prior connection in any manner with the appellant.
• Senior Sergeant Terry Apolos (“S/Sgt Apolos”), Officer-in-charge of the Minor Crimes Unit at Gordons Police Station, NCD.
6. Bani, Oata, Xu and S/Sgt Apolos were called as State witnesses in the trial.
7. A brief outline of the prosecution case showing the alleged involvement of the above-named persons in the charged crime is as follows.
• After policemen from the Minor Crimes Unit at Gordons Police Station searched and seized properties including computers and documents from Cui's office on 13 May 2018, Cui asked Bani to help retrieve the items from the police.
• Bani talked to Oata about Cui's request.
• Oata in turn contacted Const Gene who made arrangements for payment of K100,000 to S/Sgt Apolos in order to have Cui's properties returned.
• On Sunday 20 May 2018, Oata and Bani met S/Sgt Apolos and handed him the money, whereupon the S/Sgt said he would get back to them.
• The next day 21 May 2018, Xu rang Bani and informed him that Cui had been arrested and was detained at the Boroko Police Station.
• Bani and Xu met Cui in the cells where Cui again asked for Bani's help, this time to get him released on police bail.
• Bani contacted F/Const Bari who suggested the appellant might help.
• Bani met up with F/Const Bari and the appellant on 22 May 2018 when it was eventually negotiated between them that Bani would make an initial payment of K50,000 to the appellant and F/Const Bari to have Cui released from custody.
• Xu provided the money to Bani who then handed it to the appellant, but it happened that the National Court had that day separately granted bail to Cui who was represented by a lawyer.
• The appellant did not return the K50,000.
• About a week later. S/Sgt Apolos commenced investigations into the K100,000 payment made to him, and on 28 May 2018 he had Bani brought in for questioning.
• During the interview, Bani reported the payment of K50,000 to the appellant, and this led to the appellant being charged.
TRIAL
8. The evidence presented at the trial is described by the learned trial judge in his judgment at [5] to [8], with our emphasis added:
5. The State's evidence to substantiate the charge consisted of a letter from Constable Paul Bari to Assistant Commissioner of Police, Yamasombi, dated 29 May 2018, and a statement by Stanley Japele dated 15 June 2018. Those documents were tendered into evidence without objections.
6. The State called four witnesses who gave sworn oral evidence in relation to the charge. They were:
(i) Onne Bani
His evidence was that:
(a) On or about the 13th of May 2018, he was informed by his friend Aaron Cui that police personnel from Gordons Police Station raided his place of work and confiscated several items, including his computers which had important documents.
(b) He was asked to find ways to assist his friend, Aaron Cui, to retrieve his confiscated properties.
(c) Onne Bani called an associate of his, one Jonathan Oata, who got him in touch with one Moses Gene, who was the go-between to the OIC Minor Crimes at Gordons police station.
(d) Onne Bani was advised that the OIC Minor Crimes had asked for the sum of K250,000 in exchange for the release of Mr Cui's properties confiscated from Aaron Cui. However, Mr Bani informed them that he was only able to put up K100,000 which they subsequently agreed.
(e) On the 20th of May 2018, Mr Bani met with Jonathan Oata and Moses Gene, and they proceeded to the Morata suburb, the location of the residence of the OIC Minor Crimes, Gordons Police Station, Inspector Terry Apolos.
(f) There, they met Inspector Terry Apolos, and Jonathan Oata passed to Inspector Terry Apolos cash monies totalling K100,000 wrapped in a plastic bag in Mr Bani's presence. Inspector Terry received the money and informed them that he would communicate with them through Moses Gene.
(g) The K100,000 cash monies delivered to Inspector Apolos was to facilitate the return of the confiscated items belonging to Aaron Cui.
(h) On the 21st of May 2018, Aaron Cui was arrested and detained at the Boroko Police Station.
(i) The witness met with Aaron Cui at Boroko Police Station cells, whereupon Aaron Cui asked him to find a way to have him released on bail from custody.
(j) The witness contacted Paul Bari, who informed him that he would contact his friend, Stanley Japele.
(k) The next day the witness met with Paul Bari and the accused, and he informed them of the K100,000 payment made to OIC Minor Crimes Gordons Police Station, Inspector Terry Apolos.
(l) They all then drove to Boroko Police Station where they picked up the charge details pertaining to Aaron Cui's arrest and detention.
(m) This witness alleged, the accused informed him that the bail amount would be K10,000 per charge. As there were a total of seven (7) separate charges, the total bail amount would stand at K70,000; however, they were prepared to negotiate down to K5,000 per charge, if he was prepared to put up a further K15,000 to facilitate police bail. He agreed.
(n) Mr Bani then contacted Michael Xu and informed him to arrange K50,000, which he did, and the money was allegedly paid to the accused and...
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