Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 253
N744
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
TOAMARA AND NUNZI
Lae
Brunton AJ
12-14 July 1989
17-22 July 1989
24 July 1989
CRIMINAL LAW - Particular offences - Official corruption - Non-judicial but relating to offences - “Corruptly” asking for or receiving benefit - “With a view to” protection of offender from punishment - Police officers in alleged entrapment role - Criminal Code (Ch No 262), s 120.
The Criminal Code (Ch No 262), s 120, provides for the offence of official corruption not judicial but relating to offences, whereby a person employed in the Public Service in any non-judicial capacity for the prosecution of offenders “corruptly” asks for or receives any benefit for himself on account of anything to be done “with a view to” the protection of an offender from punishment.
Held
For the purposes of s 120 of the Criminal Code:
(a)      because the offence is linked to the taking of bribes it is to be associated with dishonesty and the prosecution must prove that the acts of the accused were dishonest;
R v Calland [1967] Crim LR 236, followed.
R v Smith [1960] 1 All ER 256 and R v Wellburn, Nurdin and Randel (1979) 69 Cr App R 254, not followed.
(b)      the words “with a view to” mean “for the purpose of”, so that the acts or omissions of the accused must be for the purpose of allowing any alleged offenders to escape punishment.
Cases Cited
Cooper v Slade (1858) 6 H L C 746; 10 ER 1488.
R v Calland [1967] Crim LR 236.
R v Lindley [1957] Crim LR 321.
R v Smith [1960] 2 QB 423; [1960] 2 WLR 164; [1960] 1 All ER 256; (1960) 44 Cr App R 55.
R v Wellburn, Nurdin and Randel (1979) 69 Cr App R 254.
Trial
This was the trial of two accused on charges of non-judicial official corruption relating to offences contrary to s 120 of the Criminal Code (Ch No 262).
Counsel
M Peter, for the State.
G P Langtry, for the accused.
Cur adv vult
24 July 1989
BRUNTON AJ: The two accused were charged under s 120(1)(iii) of the Criminal Code (Ch No 262), with official corruption relating to an offence. The indictment alleged that between 24 February 1987 and 21 September 1987, as police officers, in which capacity they were concerned in the prosecution of offenders, they corruptly received from Peter Seski K3,000 for themselves with a view to the protection of four named alleged offenders against the law from punishment, giving an undertaking to Seski and three of the alleged offenders namely Robert N’Draku, Lindsay Kivia and Paul Isikia to spoil the evidence in the prosecution of each of them, and another Biwa Geta for robbery.
THE CHARGE
Section 120 of the Criminal Code (Ch No 262) reads:
“(1)    A person who:
(a)      being a justice not acting judicially, or being a person employed in the Public Service in any capacity not judicial for the prosecution or detention or punishment of offenders, 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 anything done or omitted to be done or to be done or omitted to be done, by him, with a view to:
(i)       corrupt or improper interference with the due administration of justice; or
(ii)      the procurement or facilitation of the commission of an offence; or
(iii)     the protection of an offender or intending offender from detection or punishment; 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 the justice or other person so employed,
is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 14 years, and a fine at the discretion of the Court.
(2)      A person shall not be arrested without warrant for an offence against Subsection (1).”
THE ELEMENTS
The elements of the offence that had to be proved in this case were:
1. The accused were “public servants”
A member of the Police Force is a “person employed in the Public Service” by virtue of s 1 of the Criminal Code. There was no issue in the case as to this element. It was proved beyond reasonable doubt.
2. The accused were employed for the prosecution of offenders
This element was not in issue, and was proved beyond reasonable doubt.
3. “Corruptly”
This was a major issue in the case, and I will return to it.
4. “Received from one Peter Seski certain property namely K3,000”
It was not in dispute that the accused received K2,000 from Peter Seski; that is proved beyond reasonable doubt. The only admissible evidence before the court was a “verbal” statement by the accused Toamara to Mr Likky, his Officer-in-Charge. Mr Likky in his statement to the District Court did not mention that Toamara had confessed to receiving K3,000, only that Toamara had handed over to him K2,000. In his testimony to this Court, Mr Likky testified that Toamara had told him that after they got the money from Peter Seski they went in a car to “Mt Lunamaba, there we counted the money it was K3,000. I kept K2,000 and Nunzi kept K1,000”. This was denied in evidence by both Toamara and Nunzi. For reasons I will explain later, Mr Likky was not a good witness, he was unreliable, and hence I do not consider that it has been established beyond reasonable doubt that the accused received K3,000.
5. “For themselves”
That they received the K2,000 “for themselves” was in issue in the case. This is a separate element and the prosecution must prove beyond reasonable doubt that the money they received was for themselves. This is a separate element from corruption in “corruptly received”. I shall return to the element of “for themselves” later, for now it can be mentioned that the accuseds’ case was that they received the money not “for themselves”, but in furtherance of their duties, namely their investigation into the K165,000 robbery at Lae Airport.
6. “On account of anything to be done with a view to the protection of an offender from punishment”
It was alleged that the accused had received the money for themselves on account of an undertaking to four of the alleged offenders, that the accused would spoil the evidence in the prosecution of the case against the same four, plus one other alleged offender for a robbery.
The evidence was that there had been an undertaking, in the form of an unsworn statutory declaration in which the accused Toamara said:
“I intend to close this case and arrest no one at large. Therefore I also intend to receive a bribe. I also intend to spoil some of the evidence that is already before me to enable three of you to get light punishment if the three of you will also comply with some of the conditions that I have underlisted:
confirm to me that you planned and robbed the money and names of others involved;
if the money was shared among you or if it is hidden somewhere, where it is hidden and who is keeping it;
pay me five thousand kina to act on this agreement.
Why I am requesting the three above is because it is a risky deal and I must be certain you will get the money I wanted before I (act on it). If you can comply with the above conditions then trust me I will try my best to get light punishment for you.
If the three of you N’draku, Kivia and Isikia agree with the conditions above then place your signatures on the lines provided.”
The document was signed by N’draku, Kivia, Isikia and Toamara (also known as Steven Tita).
In his diary under the date of 5 May 1987, Toamara recorded that Kivia wanted an agreement drawn up. In his testimony to this Court, Toamara admitted:
“I drew up the statutory declaration, I typed it straight away. It was a day later that I went to Buimo. It was typed the day before. I went to Buimo twice. The first time I went down to Buimo they requested a statutory declaration. The second time we prepared it and took it. There were two copies of the statutory declaration, an original and a copy. The copy was placed on my file and kept in my brief case ... The original was given to Lindsay Kivia and Robert N’Draku.”
Can the first paragraph of the diary entry establish beyond reasonable doubt that the money was received “on account” of an undertaking to some alleged offenders in a robbery case that the accused would spoil the evidence and get them light sentences? Does this amount to a satisfaction of the words “with a view to the protection of an offender from punishment” in s 120(1)(iii)? What do the words “with a view to” mean?
In this context, the words “with a view to” mean “for the purpose of”, that is the acts or omissions of the accused must be for the purpose of allowing the alleged offenders to escape punishment. It seems proper that the purpose of an act can be found in both objective and subjective reality. The acts themselves create a certain objectivity that can indicate their purpose. But the subjective state of mind may also indicate the purpose of an act. In snooker, I say “pink”, and pocket the pink ball — objectivity and subjectivity coincide — the purpose of the cue-stroke was to pot pink. With the same intention I miscue and pocket the black ball — objectivity and subjectivity diverge — but the purpose of the cue-stroke was still to pocket the pink ball. Intention, and the purpose of our acts, is not established by the objective consequences of the acts, but by an examination of all the circumstances.
The objective declaration of a purpose to receive money in order to protect an alleged offender from punishment is not in itself proof beyond reasonable doubt that the purpose of the receipt of money was the protection of the offender. The purpose may have a subjective content. In this the accused asserted that their purpose in receiving the money was to further their investigation. Once this issue was raised, the State carried the onus of disproving it, of showing it was unreasonable.
It was an issue to be tried.
In summary the outstanding issues to be settled on the trial were:
(1)      that the money was received “corruptly”;
(2)      that the money was corruptly received “for themselves”;
(3)      that the money was corruptly received for themselves on account of an undertaking given (done) with a view to protecting offenders from punishment.
“CORRUPTLY”
The meaning of the word “corruptly” in law is confused. It is an undefined adverb — see Sir Bernard McKenna, “The Undefined Adverb in Criminal Statutes” [1966] Crim LR 548.
There is one line of English cases which says that “corruptly” means dishonestly: R v Lindley [1957] Crim LR 321 and R v Calland [1967] Crim LR 236.
There is another line of English cases which says that “corruptly” does not mean dishonestly “but in purposely doing an act which the law forbids...”: Cooper v Slade (1858) 6 H L C 746 at 773 per Willes J; R v Smith [1960] 1 All ER 256 at 259 G, per Lord Parker CJ; and R v Wellburn, Nurdin and Randel (1979) 69 Cr App R 254.
The ordinary meaning of the adverb “corruptly” is wider than “dishonestly”. Dishonesty may certainly be an ingredient of corruption, but the concept is wider. Corruption can be achieved by pollution, subversion, or the undermining of a concept, institution, or material. When the word “corruptly” is used with persons, as in s 120(1) — “A person who... corruptly... receives” — then the ordinary use of the word implies immorality, depravity and dishonesty. When the word is linked with the taking of bribes, “corruptly” is closer to dishonesty as a concept than it is to immorality or depravity, which are more associated with other forms of social deviancy such as sexual indiscretion (although the taking of bribes is certainly immoral).
The rule in R v Smith that “corruptly” means purposely doing an act which the law forbids has a circularity about it: “corruptly means doing something which is corrupt”. A circular definition is a non-definition. It merely conceals the real basis on which a decision is made, and allows a court to construct a syllogism on an undisclosed premise: see J Stone, “III. Category of Concealed Circular Reference”, Precedent and Law (Butterworths, Sydney, 1985), at 65-67, and also J Stone, “par 9. The Legal Category of Concealed Circular Reference”, Legal System and Lawyer’s Reasonings (Maitland, Sydney, 1968), at 258-263. As a matter of principle, I prefer the line of cases ending with R v Calland [1967] Crim LR 236, and I hold that the State in this case must prove an element of dishonesty. Dishonestly is a somewhat firmer concept than corruptly, although it, too, is an undefined adverb, and can lead itself to circularity.
THE OTHER OUTSTANDING ELEMENTS
Whether or not the accused received the money corruptly (dishonestly), whether they received it for themselves, and whether or not the undertaking was given for the purpose of protecting the offenders from punishment are matters to be determined on the facts of the case. In essence, the State sought to show how the facts revealed that the accused planned and executed a scheme in order to obtain part of the proceeds of the K165,000 Lae Airport robbery. On the other hand, the defence sought to show how the facts pointed to the accused laying a trap for the alleged airport robbers, and that they always acted with a view to ensuring that the robbers were punished.
The onus of establishing all the elements of the offence is on the State, to prove its case beyond reasonable doubt.
THE EVIDENCE
The trial has taken place over nine sitting days. The State called seven witnesses. The defence called both accused who gave sworn testimony. All the witnesses in this case were members of the Police Force.
The State witnesses were:
1.       Mr Powis
Mr Powis was an experienced expatriate police officer who conducted records of interview with both accused. The record of interview with the accused Toamara was not admitted in evidence because I did not think that the State had established its voluntariness beyond reasonable doubt, and I was also of the view that it was unfairly obtained. In essence, the State did not call another senior police officer, Mr Toguatu, in rebuttal of allegations of inducement against him. Mr Powis did not have overall charge of the investigation, he came to Lae from Port Moresby in order to do the interviewing in the case. He was a competent witness. The record of interview with the accused Nunzi was admitted into evidence.
2.       Mr Chinau
Mr Chinau was an experienced national investigator, who was part of the team lead by Mr Toguatu. He was the officer corroborating the interviews conducted by Mr Powis. He was a competent witness.
3.       Mr Likky
Mr Likky was the Officer-in-Charge of Lae CID during the period in question. He was the superior of the accused Toamara.
Mr Likky was not an impressive witness. He was vague about dates and he confused events. This may not be surprising when it is remembered that he was trying to recall matters which took place nearly two years ago. Perhaps he would have been a better witness if he had kept a diary, or some other systematic record, but he did not. He had to rely on his memory, and unfortunately that was less than perfect. I will give some examples of the inconsistency in his testimony:
He claimed he made a handover-takeover of the case in 1988, the end of February or March at Tent City Police Station. At this time he testified he passed his investigation file to Mr Powis. Mr Powis left Lae at the end of his investigation in October 1987 and did not return.
In testimony he said, “I came out of hospital and I decided to check on the progress — end of April, 17th to 18th of April. In April 1987 I learnt from the Prosecutors that Tita (Toamara) had a scheme. Mr Likky came out of hospital on the 24th of April 1987.
In his statement to the District Court he said that on 7 June 1987 Toamara’s notes were hand-delivered and on 8 June 1987, he had discussions with Sgt Gawi and Mr Laho. But in his testimony he said that it was around the third or fourth week of April 1987 that the acting OIC of Police Prosecutors telephoned him, and he went to the Police Prosecutors and was shown two hand-written notes.
He testified that he found the statutory declaration on Mr Toamara’s file, but he could not remember the date he found this vital piece of evidence.
In his statement given on the committal proceeding he said that on his meeting with Sgt Gawi and Mr Laho “we all agreed that Tita (Mr Toamara) should be paid before the committal”; in his testimony he said that Mr Gawi did not like the idea, Mr Laho was in favour of it, and that he, Likky, stayed quiet.
A further inconsistency arises between Mr Likky and Mr Laho over this last meeting. Mr Laho said he had malaria and was off for a week at this time, and that he was not present at the meeting between Mr Likky and Mr Gawi.
This is not to say that Mr Likky is a liar or is untruthful, just unreliable. The defence case was that Mr Likky was involved in the airport robbery and that he was a liar. But there was no evidence to support those allegations. Mr Likky’s evidence needs to be supported objectively if it is to be relied on with any certainty.
4.       Mr Piringi
Mr Piringi was a policeman who came to Lae from Menyamya and gave the accused a lift to Buimo to see the alleged robbers. This was at the time the statutory declaration was meant to have been signed. Mr Piringi could not remember when he was in Lae. First he said it was September 1987. Then he said it was August 1987. He was an unreliable witness.
5.       Mr Laho
Mr Laho was a member of the Police Prosecutions Branch in Lae. He gave evidence that the accused Toamara had sent him two notes requesting that he (Laho) not oppose bail in respect of one of the alleged robbers, Paul Isikia. The note explained that Toamara needed more time with his investigation, and that once Isikia was out on bail Isikia would give to Toamara a bribe of K5,000, which Toamara would then use as evidence against Isikia. Mr Laho fixed the time of these events as the second week of May 1987. This is an important date and I will return to it. He gave the note to his Officer-in-Charge, Sergeant Gawi. The following day he received another note from Toamara, which was in similar terms to the first note. He passed that note to Sergeant Gawi. In what Mr Laho described as “a couple of days” he had a meeting with Toamara. The two met alone. Toamara went through the scheme with Laho. Toamara asked Mr Laho for his advice or opinion as to whether it was “alright” for him to accept the money from Isikia and then turn against Isikia. Laho replied that it could be alright, but again suggested he seek professional advice from the State Prosecutor. Towards the end of the conversation Toamara showed Laho a copy of the statutory declaration. Next day Mr Laho contracted malaria and was away for a week. Mr Laho did not meet Mr Likky at this time.
Mr Laho was a good witness, but he was unable to locate, either from his memory, or from any contemporaneous record, the precise timing of events, and that is a major defect in his testimony.
6.       Mr Gawi
Mr Gawi was the Acting Officer in charge of Police Prosecutions in Lae at the time of this matter. He gave evidence that in June 1987 he saw an envelope on Mr Laho’s desk marked “strictly confidential”, which contained the first note sent by the accused Toamara. He could not remember the date in June. This is an important defect in his evidence as Mr Laho located the timing of these events in the second week of May 1987. The envelope stayed on Laho’s desk for a day, and the next morning Laho opened it and showed it to Sergeant Gawi. Sergeant Gawi advised Mr Laho to object to bail, and not to touch any evidence on the files. Sergeant Gawi testified that he then discussed the contents of the notes with the Station Commander, Simon Kaupa. Mr Gawi then testified that he and Laho then had a discussion with Mr Likky about the note. This evidence conflicts with that of Laho who said he did not meet Likky because he (Laho) had contracted malaria and was away sick for a week. Mr Gawi’s version of the meeting is somewhat at odds with that of Mr Likky. Mr Gawi said he kept his views to himself, only Mr Likky gave his views. Mr Gawi did not agree that the scheme should go ahead; here there is agreement with the testimony of Mr Likky. Mr Gawi was afraid if the case was thrown out, that he would be the first one to be called to account.
7.       Mr Ludwig
Superintendent Ludwig is now the Provincial Police Commander of Morobe Province. He was transferred from Kiunga to Lae in May 1987 to set up the new office of Metropolitan Commander. Mr Ludwig could not remember any precise dates.
Mr Ludwig said that three days after he arrived and took office the accused Toamara rang him and asked Mr Ludwig to allow one of the accused in the airport robbery out on bail. Mr Ludwig told Toamara that he was not familiar with the case and asked him to go and see Chief Inspector Kaupa and Mr Likky.
In examination-in-chief, Mr Toamara could not remember this conversation — he said, “I made a lot of telephone calls at that time”. He did not note Mr Ludwig’s instruction in his diary.
Mr Ludwig was later briefed by Mr Likky and as a result of that briefing, and of the telephone call made by the accused Toamara he became suspicious about Toamara. He said it was improper and unprofessional for a member to accept money. The scheme proposed by Toamara would have needed to have been briefed on paper, and Mr Ludwig would have needed to consult with the Assistant Police Commissioner (Crime). Mr Ludwig ordered Mr Likky to investigate the scheme and to report regularly to him.
The defence called both accused who gave sworn testimony.
8.       Mr Toamara
Mr Toamara gave extensive testimony before the court. His testimony runs to forty pages of handwritten transcript. He was a quietly spoken, serious witness of obvious intelligence. He was the only witness who was able to corroborate his version of events with a contemporaneous record, his diary.
The State put it to Mr Toamara that the diary was a fabricated, self-serving reconstruction of events. No handwriting expert was called to support this view.
I have read the diary. It is a description of an investigation. It is not a continuous record of events. On some days there is no entry at all. On other days there are extensive entries. I suspect it may well be a reconstruction, but I cannot be satisfied beyond reasonable doubt that it is. In my view, the diary should only be considered evidence beyond reasonable doubt when it clearly goes against interest, or when it is objectively corroborated by evidence that can be trusted.
The essence of Mr Toamara’s evidence is that, on 24 February 1987, there was an armed robbery at Lae Airport, and a mail bag containing K165,000 was stolen. He became involved in that investigation some two days after the robbery. On 30 February 1987, Mr Likky was stabbed late at night at the Kamguma Community Centre, effectively leaving First Constable Toamara in charge of the nation’s largest armed robbery. Toamara was at this time working with Constable Dandaya. Constable Dandaya could have been an important witness in the State’s case, but he was not called. On or about Monday, 2 March 1987, the accused Robert N’Draku was arrested and a quantity of electrical goods, a car, and K17,000 in cash were recovered. Toamara’s diary has its first entry on 20 March 1987. Although he does not refer to it in his testimony, the accused Nunzi tipped-off Toamara as to the suspect Lindsay Kivia some time in early March. Nunzi was a Drug Squad officer and Kivia was a Customs Narcotics officer. When N’Draku was arrested Kivia went to Rabaul. Toamara went to Rabaul to look for Kivia. On his return, Toamara went and arrested Paul Isikia at the CWA guesthouse on 2 April 1987. By 7 April, Lindsay Kivia was in custody.
In summary, within six weeks of the robbery three suspects were in custody and K17,000 had been recovered together with some items allegedly purchased with the proceeds of the robbery. Thereafter the investigation, according to Toamara, slowed down because witnesses were not forthcoming, they avoided the police, they demanded to see lawyers before talking to the police, and there were rumours that members of the Police Force were involved in the planning and execution of the robbery.
In order to break the impasse, Toamara decided upon a scheme of entrapment. He went to see Nunzi, who had tipped him off about Kivia, and enlisted his help. Nunzi was to use his friendship with Kivia to let the accused robbers know that Toamara was open to a bribe.
According to Toamara’s diary, Paul Isikia first suggested that he bribe Toamara in the Lae Police Station toilets on 21 April 1987. On 24 April 1987, Mr Likky was discharged from hospital and commenced duty again. (Some time after this date Likky said he became suspicious of Nunzi and Toamara.) On 28 April 1987, Toamara drafted a letter to N’Draku and Kivia who were in Buimo.
Following this, Toamara and Nunzi, with Puringi driving, went to Buimo for Nunzi to make the first contact with Kivia. In his testimony, Toamara locates this time as “somewhere in May 1987”. In his diary he notes it as 5 May 1987. Kivia demanded that the deal be reduced to writing and Toamara testified he typed it up on a statutory declaration that night. Next day, 6 May 1987, they went back to Buimo, taking Paul Isikia from the police cells with them, and Isikia, Kivia and N’Draku signed the statutory declaration. Isikia was taken back to the police cells and he telephoned Peter Seski, who came to the police station, and had the plan explained to him. Seski promised to get K3,000 in exchange for Toamara destroying evidence on file. Isikia also promised more money if he could be released.
According to Toamara’s diary (which is supported by Nunzi’s testimony), on 12 May, Peter Seski telephoned Nunzi and told him something. As a result Nunzi and Toamara drove to the court-house, Lae, and parked at the back. Toamara stayed in the car. Nunzi got out and walked to one of the nearby buildings. Five or ten minutes later he came back and handed an envelope to Toamara. According to Toamara’s testimony, they then drove up to Lunamaba Hill and counted the money. It was in K20 notes. Toamara said he only saw K2,000 in the envelope. He denied there was K3,000, and that he gave K1,000 to Nunzi and kept K2,000 for himself. Toamara put the money in his briefcase and kept it there for a month.
What is surprising about this evidence is that the arrangement with Peter Seski was to pay K3,000, and yet they only got K2,000. No-one complained. There is nothing in Toamara’s diary, nothing in the other evidence which suggests that they put pressure on Seski to complete the bargain.
Toamara’s explanation for not handing the money over to a senior officer at this stage is two-fold:
First:   here were rumours that the officers were corrupt and that they were involved in the robbery. Emmanuel Meta was eventually charged on 28 September 1987.
Secondly:      he wanted to get more money from Isikia.
Toamara admitted sending the notes to Mr Laho asking for the Police Prosecutor not to object to bail.
He also admitted that the Police Prosecutor (Mr Laho) told him to go and see Mr Langford.
He admitted that when he visited Mr Langford’s office he had the signed statutory declaration in his possession, but that he had not yet got the money.
This is where Laho’s evidence as to dates becomes vital. Laho said he first got the note in the second week of May. If this is so, then Toamara was probably telling the truth when he said in cross-examination that he did not have the money when he saw Mr Langford. Mr Gawi said he saw the envelope with Toamara’s note in it “in June 1987”. Likky says in his statement on committal that “on 7 June 1987 two notes were hand-delivered to me one by a/OIC Prosecution and the other by F/C Laho”. I do not trust Likky as to dates, for reasons I have explained. In his testimony, Mr Likky said it was in the third or fourth week of April that he went to the Police Prosecutions Office and he was telephoned by the Acting Officer-in-Charge, Police Prosecution and he was shown the two notes.
When the dates become vital to show an accused is lying, that is, lies which may lead to a conviction, then I must find those dates are accurate beyond reasonable doubt. In his testimony Toamara may well have lied on this point. But the evidence of the date on which these events took place is confused. Here, I cannot find a date beyond reasonable doubt.
Mr Langford may have been able to cast light on these matters, but Mr Langford chose not to be present to give evidence last Friday. The Court must make do with the evidence that it has.
On either 9 June 1987 or 11 June, Isikia’s case was withdrawn from the District Court. Nunzi and Toamara went to Isikia’s for the K5,000 they were promised. They picked Isikia up and then drove to Munum in search of Biwa Geta who was said to be keeping about K20,000 from the airport robbery. Geta was not to be found so they came away empty-handed.
On 15 June 1987, which is one of the few documented dates in this case, Mr Likky called in Mr Toamara and demanded the money paid by Peter Seski. Toamara produced K2,000.
Mr Likky in his testimony said that Mr Toamara made an oral confession at that time that Toamara and Nunzi had received K3,000 and that Toamara gave Nunzi K1,000 while keeping K2,000 for himself.
But this oral statement is what in the popular jargon is called a “police-verbal”. I would not give it weight unless it was corroborated by other evidence that I could trust. There is the fact that Toamara had asked Seski for K3,000, and does not appear to have complained when he only got K2,000, but that is equivocal to Toamara’s testimony that they were after the bulk of the proceeds of the robbery.
On 15 June 1987, Mr Likky told Mr Toamara that the scheme of entrapment was off.
9.       Nunzi
The evidence of the second accused Simon Konzie Nunzi corroborates that offered by Mr Toamara. Nunzi was a friend of Kivia as both worked in narcotics prevention. Nunzi tipped-off Toamara and Toamara went to Rabaul and arrested Kivia. Toamara then came back and asked Nunzi to assist in a scheme of entrapment. Nunzi was to use his friendship with Kivia to get the confidence of robbery suspects and induce them into a scheme of bribery, in which the money paid as a bribe would eventually be used as evidence to convict the suspects of robbery. The details of the trips to Buimo, the signing of the statutory declaration, the contact with Peter Seski and the receipt of K2,000 were corroborated. Mr Nunzi stressed that he wanted Toamara to check out the scheme with Mr Langford. He confirmed that they were very suspicious of commissioned officers and that they did not want to approach them until they had the case adequately evidenced. On the whole, Mr Nunzi gave his evidence in a straightforward manner and was not shaken on cross-examination.
CONCLUSIONS
Is there proof, beyond reasonable doubt, that the accused had dishonest motives and that they “corruptly” received the K2,000 “for themselves” “on account of an undertaking given (done) with a view to protecting some offenders from punishment”?
The accused say that they did not disclose they had the K2,000 to their superiors because they believed that the officers were corrupt. If this view, in all the circumstances, is probable (on the balance of probabilities), then they have a defence. They assert that it was always their purpose to prosecute and punish the robbers.
At first blush, it is hard to believe that the accused reasonably held the belief that all their officers were corrupt. Surely there must have been someone they could trust; that has a rationality about it.
But the evidence points elsewhere:
Mr Likky was stabbed while he was at a community club, shortly before he was to make a major arrest in the airport robbery case. He was not in possession of a warrant. He wanted to go for a drink. At best, on his own testimony, Mr Likky was in dereliction of duty. But it does not surprise me if others thought that perhaps he was there for some other purpose, that he was there to get some of the robbery proceeds for himself.
After Mr Likky was stabbed, no experienced commissioned officer took charge of what was the country’s largest armed robbery. Toamara was left on his own. This does not place the officer corps in a good light. Was it really that incompetent — or disinterested? Can others be forgiven if they jump to conclusions that there may have been more to this neglect than met the eye?
There is general evidence from Powis, Likky, Toamara and Nunzi that rumours of corruption were rife. Toamara and Nunzi gave evidence that officers were named.
Toamara thought Likky was involved in the robbery.
There was evidence that Likky was transferred out of the Province for discipline reasons unconnected with the airport robbery or this case.
There was evidence that Likky was demoted from Senior Inspector to Senior Constable because of a brawl he was involved in at Bomana Police College.
There was evidence before the Court that when the investigation into police corruption in Lae eventually began, it was not properly co-ordinated. The investigating team was led by Mr Toguata. After Toguata left Lae, that appears on the evidence to be the last we hear of him. There is evidence that the police investigation file was eventually handed to Mr Sekiot. The impression given is that there was no serious co-ordination of the investigation.
The police investigation file was lost. The two notes sent by Toamara to Police Prosecutions in Lae were never produced in court, because they were on this file.
The prosecution of the case before me by the State Prosecutor, Mr Peter, was unaided by the presence of any senior police officer instructing Mr Peter. I went to the length of requesting the appearance of the Provincial Police Commander in Court, and stressing to him the need for Mr Peter to have an instructing officer.
No senior officer appeared as a witness on this trial, to provide co-ordinating or narrative evidence as to the history of the investigation. Hence all the dates, and the sequences of events have had to be reconstructed by the Court from, in the main, dubious sources: Mr Likky’s memory and Mr Toamara’s diary.
One officer, Emmanuel Meta, has been committed in relation to the robbery.
From this evidence I find that there was a split between some, at least, of the NCOs, other ranks and the officer corps, and that the non-commissioned ranks were worried about corruption in the officer corps.
The belief of Toamara and Nunzi that it was not possible to trust officers was not unreasonable in these circumstances.
More importantly, the evidence of the State which goes to the intentions of the accused — whether they received the K2,000 “corruptly” “for themselves” on account of an undertaking given (done) with a view to protecting some offenders from punishment — does not satisfy me beyond reasonable doubt.
The State case at best is loose, ill-referenced as to time, and poorly coordinated. It creates doubts in my mind. It may well be that the accused had a corrupt intention, but I am not satisfied about that to the standard the law requires.
Accordingly, I acquit both the accused of the charges in the indictment. They are discharged and bail monies are to be refunded.
Verdicts of acquittal
Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.