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State v Hore [1981] PGNC 48; N346 (18 December 1981)

Unreported National Court Decisions

N346

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
MALALA HORE

Waigani

Kidu CJ
15 December 1981
17-18 December 1981

NO CASE SUBMISSION - “Collusive agreement” under s.217(b) of the Customs Act 1951.

RULING ON NO CASE SUBMISSION

KIDU CJ: At the conclusion of the case for the prosecution last Tuesday it was submitted by Ms. Cox, counsel for the defendant, that her client has no case to answer. She urged that I should make ruling because on the evidence before me I could not lawfulawfully convict the accused.

The two counts in the indictment are in the alternative. On the first count Ms. Cox submitted that there was no evidence that the accused entered into a collusive agreement with customs officer Campbell Tokiemota.

The first time the two met was on 1st February, 1981. On that occasion all that transpired was that the accused told Tokiemota that he had met two friends who had two suitcases to be cleared with customs. The next day (2nd February, 1981) the two met again at the Customs Training Centre, Konedobu. On this occasion the accused told Tokiemota that one of his friends (George) would be coming up from Sydney to take delivery of the two suitcases. The two friends (George Kassas and Brian Askin) had promised him some money. Nothing else was said. Then nothing else happened until 8th March, 1981. The accused and Tokiemota met at Jackson’s Airport. The former invited the latter to have coffee with him. Before having coffee Tokiemota asked whether the accused had heard any news from his friends The accused told him to forget the matter.

On 12th March, 1981 the two met again at the airport and had lunch together. After lunch they bought some beer and went to the Customs Training Centre. There Tokiemota again asked the accused whether his two friends still wanted the suitcases. The accused answered in the affirmative and also said that they were coming up to get them. Tokiemota then told the accused that if they wanted the suitcases he would clear them but he wanted to be paid K150.00 because he was risking his job. The accused told Tokiemota K150.00 was too small. He suggested K1000. Tokiemota said he wanted between K800 to K1000. To this the accused made no reply.

The next time the two met was on 7th April, 1981. On this occasion Tokiemota inquired about the accused’s two friends and was told to forget them. Then a little later the two went to the airport tower building. There the accused then asked Tokiemota to check the two suitcases and see if they had Middle East markings on them. At lunch time that day the two met again and Tokiemota informed the accused that the suitcases did have Middle East labels on them. Tokiemota then told the accused the best time to pick up the suitcases was 3.00 p.m. and that they had to pay him before the suitcases were picked up. The accused said he would see about it.

On 8th April, 1981 the accused went to the Air Niugini Cargo building and inquired where Tokiemota was and was told by Tobung that he was inside. The accused saw Tokiemota and the two then walked down to the airport terminal building. The accused had told Tokiemota his friend (George Kassas) was waiting outside that building. Tokiemota met Kassas. The accused was not present.

In the evening, about 7.15 p.m., the accused went to the Customs Training Centre and asked Tokiemota whether George (Kassas) had given him any money and Tokiemota answered ‘no’. Whilst the accused was there police arrived and took him away. Tokiemota said Kassas had given him K60.00 and he had given this money to his supervisor, Senior Customs Inspector Frank Barara. Throughout all these encounters, Tokiemota had been part of a Fraud Squad/Customs surveillance team. As far as he was concerned he was not going to neglect his duties or was he going to be influenced in the discharge of his duties.

The collusive agreement allegedly made by the accused and Customs Officer Tokiemota, is that for a consideration (the payment of a sum of money) Tokiemota was to clear two suitcases belonging to the accused’s friends George Kassas and Brian Askin.

Ms. Cos submitted that there was no collusive agreement because Tokiemota had no intention of entering into one. He was, all along, an agent provacateur. He was under instructions to do what he did. Ms. Cox submitted that for a collusive agreement to exist there must be intention on the part of both parties to effect such an agreement. Here Tokiemota had no such intention. The Act does not define the terms “agreement”, “collusive” or “collusive agreement”. However, it is obvious what is meant by a collusive agreement in the context the words are used. Section 217(b) reads, enter alia, as follows:

“217. Whoe/p> <#160; #160; .;<...

(b) & gi0; gives ores or procures to be given, or offers or promises to give or procure to be given, any b recoe or d to or make coll agre with any officer to indo induce huce him inim in any any way to neglect his duty, or who, who, byby threats, demands or promises, attempts to influence any officer in the discharge of his duty;