HIGH COURT OF SOLOMON ISLANDS

Case name: 	Murray v R 	
		
Citation:		
		
Date of decision: 	5 May 2025	
		
Parties: 	Henry Aife Murray v Rex	
		
Date of hearing: 	18 and 19 April 2023	
		
Court file number(s): 	150 of 2018	
		
Jurisdiction: 	Criminal 	
		
Place of delivery: 		
		
Judge(s): 	Lawry; PJ	
		
On appeal from:		
		
Order:	1. All the grounds of appeal are dismissed.	
		
Representation: 	Ms Y Samuel for Appellant 
Ms H Naqu for Crown 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Penal Code [cap 26] S 91 (a), S 91 (1), 
Public Service Act [Cap 92] Rule 4	
		
Cases cited:	Rojumana v Regina [2008] SBHC 23, Cooper v Slade [1858] 10 ER 1488, R v Wellburn [1979] 69 Cr App R 254, State v Toamara [1989] PNGLR 24, Re Austin [1994] 1QdR 225, Willers v R [1995] 81 A Crim R 219, Director of Public Prosecutions v Pirone [1997] 68 SASR 106, R v Leolahi [2001] 1 NZLR 562, Public Prosecutor v Tabimasmas [2021] VUCA 14, Field v R [2011] NZSC 129	

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Appeal Case No. 150 of 2018

HENRY AIFE MURRAY 

V

REX

Date of Hearing: 18 and 19 April 2023
Date of Judgment: 5 May 2025

Counsel 
Ms Y Samuel for the Appellant 
Ms H Naqu for Crown 

Lawry; PJ
JUDGMENT ON APPEAL AGAINST CONVICTION 
INTRODUCTION
1. 	The Appellant was convicted in the Magistrate Court in Honiara on 11 counts alleging offending contrary to section 91(a) of the Penal Code. He now appeals against those convictions. The convictions all relate to the hiring of motor vehicles by the Solomon Islands Government and a business call Krash Transport and Marketing. That business was not a limited liability company having a separate entity but was a business carried on by the Appellant and his wife.
2. 	On 6 October 2016, the Appellant removed his name from the business and replaced it with the name Sonny Aife. However, the address and bank account of the business remained the same. It remains the family business.
THE CHARGES:
Count 1
3. 	Count 1 alleged that between 6 August 2014 and 21 August 2014 the Appellant was employed in the Public Service as the Director Mechanical Engineering in the Ministry of Infrastructure and Development [“MID”]. In that capacity he was charged with the certifying the roadworthiness of vehicles for hire by the Government.  In performing that duty, he certified the roadworthiness of a motor vehicle, registration number AB 7564. That vehicle belonged to the business carried on by the Appellant and his wife being Krash Transport and Marketing. He certified the roadworthiness of the vehicle, which was later hired to the Government.  He acknowledged the payment to Krash Transport and Marketing from Solomon Islands Government Purchase Requisition for the hireage of the vehicle, thereby obtaining a financial benefit of $118,950.00 for himself and his wife.
4. 	The learned Magistrate confirmed correctly that the issue for the Court was whether his act of certifying the vehicle as roadworthy for the purpose of the Solomon Islands Government hire agreement with Krash Transport and Marketing amounted to official corruption.
Count 6 – Count 15
5. 	The issues in Count 6 to Count 15 are largely the same. The counts allege that he approved hire agreements between the Solomon Islands Government and Krash Transport and Marketing between the dates and in respect of the vehicle identified in each count and that he granted expenditure to that business for each count, at a time he was employed by the Public Service as the Permanent Secretary of the Ministry of Infrastructure and Development [‘MID’].
6. 	The learned Magistrate set out the issue for each count was whether by approving the hire agreement between the Solomon Islands Government and himself and his wife trading as Krash Transport and Marketing and the subsequent approval of payments to himself and his wife under that trading name, amounted to official corruption.
7. 	Counsel for the Appellant has raised an issue on the appeal in relation to Count 14 and 15 in that on 6 October 2016 the family business of Krash Transport and Marketing has replaced the name of the Appellant, as one of those operating the business, to Sonny Aife. The dates of the alleged offending in Count 4 are 1 August 2016 and 25 February 2017. The dates in Count 15 are 1 November 2016 and 9 March 2017. As set out above, the business remained the family business with the address of the business and the bank account of the business remaining unchanged.
Grounds of Appeal
8. 	Initially there were thirteen grounds of appeal. Only nine grounds of appeal are now pursued, they are:
1.	The learned Chief Magistrate erred in fact and in law when she failed to take into account the change in ownership of Krash Transport and Marketing on the6 October 2016 when Henry Murray was removed and replaced with Sonny Aife and the legal effect of such changes on the employment of Henry Murray as Permanent Secretary of the Ministry Infrastructure and Development, in discharging and performing his lawful duties under the laws of Solomon Islands; 
2.	The Learned Chief Magistrate erred in fact and in law when she considered and concluded that Henry Murray personally benefitted from monies paid to Krash Transport and Marketing when there was not shred of evidence shown that Mr Murray personally benefitted. On the contrary the evidence showed from the contract signing with the Solomon Islands Government (SIG) to the payments from the Solomon Islands Government under the contracts for services rendered by the Krash Transport and Marketing, it was Krash Transport and Marketing that directly benefited; 
3.	The learned Chief Magistrate erred in fact and in law when she failed to prudently interpret and apply Financial Instruction P736 (P736 Conflict of Interest to be avoided on its own firstly and secondly as against Financial Instructions P744 (P744 Authorising a PR or Purchase Requisition) to establish if there was a corrupt act on the part of the Appellant fulfilling his lawful duties particularly when the Appellant had made lawful declarations to the Chairman of the Leadership Code Commission which had not being questioned to date;
4.	The learned Chief Magistrate erred in fact and in law when she failed to prudent interpret, consider and assess the application of the Public Service Act [Cap 92] Rule 4 and Finical instructions P744 when read together as opposed to Financial Instructions P736 when she concluded and placed more unreasoning emphasis and assumed the simple reasoning that Henry Murray was approving payments for Henry Murray himself and failing to address that Henry Murray effectively fulfilling his duties as required by law and approving payments to Krash Transport and Marketing and not himself; 
5.	Further to Ground 6 above, the learned Chief Magistrate erred in fact and in law when she failed to consider that the SIG Hire Agreements between SIG and Krash Transport and Marketing signed by Henry Murray were extension contracts derived from contracts between SIG and Krash Transport and Marketing signed by Permanent Secretary of Ministry of Infrastructure and Development Moses Virivolomo for continuing use by SIG of vehicles owned by Krash Transport and Marketing.
6.	The learned Chief Magistrate erred in fact and in law when she failed to consider the elements of the Offence of Corruption under Section 91(a) of the Penal Code [Cap 26] against evidence proofing each of the elements of the offence but instead applied or used the totality of the evidence as proofing the commission of the offence, beyond all reasonable doubt by the Appellant;
7.	The learned Chief Magistrate erred in fact and in law when she placed more emphasis on conflict of interest issues as though conflict of interest is an element of the offence under section 91(1) of the Penal Code [Cap 26] and neglected her duties to weight the evidence against each of the elements of the offence under Section 91(1) of the Penal Code [Cap 26]; 
8.	The learned Chief Magistrate erred in fact and in law when she relied on and applied the definition of corruption in the case of Rojumana v Regina [2008] SBHC when the circumstances and facts of that case were totally and utterly distinct from this case and further the definition pronounced therein required proof of “improperly and unlawfully enrich themselves, or those close to them, by misuse of the public power entrusted in them” which the Chief Magistrate failed to demonstrate in the Judgment;
9.	The learned Chief Magistrate erred in fact and in law when she purposely declined to discuss evidence supporting each of the elements of the offence under Section 91(1) of the Penal Code [Cap 26] but used the “totality of evidence” and the of corruption in the Rojumana v Regina [2008] SBHC case to conceal and/or obscure the proving of the fundamental element of the offence which is “corruptly” and by doing so aided and abetted the Prosecution from performing their duty to proving by evidence the element of “corruptly” beyond all reasonable doubt;”
9. 	The starting point is section 91(a) of the Penal Code, which provides: 
	“91. Any person who-
	(a) being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly asks for, solicits, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office;” 
10. 	The Magistrate, at paragraph [25] of the Judgment identified the elements as
[1]	Any person 
[2]	Employed in the Public Service
[3]	Being charged with the performance of a duty by virtue of that employment.
[4]	Comply
[a]	Ask for; or
[b]	Solicits; or
[c]	Receives; or
[d]	Obtain; or
[e]	Attempts to receive or obtain
[5]	Any property or benefit
[6]	For himself or any other person 
[7]	On account of anything already done; on
[8]	Omitted to be done; or
[9]	To be done by him; 
[10]	In the discharge of his duties.
11. 	For the purpose of the charges faced, the prosecution was required to prove beyond reasonable doubt that the Appellant was employed in the Public Service and in that role was charged with the performance of a duty. Further, the prosecution must prove beyond reasonable doubt that the Appellant corruptly received a benefit for himself or another person for something done or to be done by him in discharging the duties of his office.
12. 	At paragraph [26] of the Judgment, the learned Magistrate summarised the prosecution case as: “The Prosecution case against the defendant Mr Murray is that he corruptly obtained personal benefits through acts carried out in his official capacity namely; the certification of vehicle owned by Krash Transport and Marketing, the granting of approval of living to Krash Transport and Marketing a business of which he is co-owner with his wife and approving payments to be made to Krash Transport and Marketing,”
13. 	Initially the Appellant raised as a point of appeal a challenge to the finding that Krash Transport and Marketing was not a separate entity from the Appellant and his wife. The grounds of appeal pursued have abandoned reliance on that issue.
Count 1
14. 	At paragraph [2] of the Judgment, the learned Magistrate set out the evidence in relation to Count 1. At that time, the Appellant was the Director of Mechanical Engineering in the MID. On 6 August 2014 he certified that vehicle AB7564 was roadworthy, for the purpose of the Solomon Islands Government vehicle hire agreement with Krash Transport and Marketing executed on 1 April 2014. Krash Transport and Marketing was the business name of the business carried on by the Appellant and his wife. On 6 August 2014, the wife of the Appellant signed the document surrendering the vehicle to the Government on the conditions set out in the agreement. The approval to hire the vehicle was endorsed by the former Permanent Secretary on 12 August 2014.
15. 	On 13 August 2014, Krash Transport and Marketing tendered an invoice for the hire of the vehicle AB7564 from 1 April 2014 to 30 September 2014 in the sum of $118,950.00. This was significantly greater than twice the value of the vehicle. On 13 August 2014, the Purchase Requisition for $118,950.00 in respect of the vehicle was signed. It was certified by the Appellant in his capacity of Director of ‘mech/MID’.
16. 	On 29 August 2014, the Appellant signed the receipt confirming payment to Krash Transport and Marketing. On 1 September 2014, the payment cheque was paid into the account 5133435 of the ANZ Bank being the account of Krash Transport and Marketing. It is noted that the Appellant said that the amount charged for the hireage was in accordance with approved rates.
17. 	As the Magistrate had identified, the central issue on all counts was whether the Accused ‘corruptly’ discharged the duties of his office and as a result received personal benefits from the Vehicle Hire Agreements executed.
18. 	Counsel for the Appellant submitted that the Magistrate did not take into account that at the time the agreement between Solomon Islands Government and Krash Transport and Marketing was effected, the Appellant had already tendered his resignation from his employment with the Solomon Islands Government. That argument cannot succeed because at the time he certified the vehicle as roadworthy he was employed in the Public Service and was charged with a duty as the Director of Mechanical Engineering. In that, capacity he certified the vehicle as being roadworthy for the purpose of the vehicle hire agreement whereby his family business would receive the hireage fee. It does not matter whether he subsequently ceased his employment, what does matter is that he did the certification as part of his duty as the Director of Mechanical Engineering while employed at the MID. The certification was for the proposed hireage of the vehicle to the Government. The issue was correctly identified by the learned Magistrate as being when the Appellant certified the vehicle did he do so ‘corruptly’.
19. 	Counsel, also submitted that the learned Magistrate had not considered that the certification done by the Appellant was to ensure that the vehicle, the subject of the Agreement, was road worthy. At paragraph [41] of the Judgment, the learned Magistrate dealt with this issue and correctly noted that the Appellant had placed himself in a conflict of interest situation. The Magistrate went further and said, “The conduct in fact goes beyond a mere conflict of interest …where the acts of Henry Murray conducted in an official capacity have directly resulted in a personal benefit to him.”
20. 	It is not relevant whether the vehicle was roadworthy or not. The learned Magistrate correctly noted at paragraph [42] that the Appellant’s conduct amounted to discharging his duty on one hand by way of signing certifications with his right hand in order to receive personal benefits from discharging his official duty, with his left hand.
21. 	There is no doubt that had the learned Magistrate sat in judgment in a case where she was one of the parties such conduct would be improper and dishonest even if another Magistrate may have come to the same conclusion. This however is exactly what the Appellant has done in making the judgment that the vehicle was roadworthy, certifying it to be so then receiving the hire payment of $118,950.00 for that vehicle. As the Magistrate correctly found, the case is whether or not the prosecution has proved that the conduct was done corruptly.
Corruptly 
22. 	The Magistrate considered the definition of corruption as set out in Rojumana v Regina [2008] SBHC 23 where Mwanesalua J said:
	“The term corruption is not defined in the code. Definitions of corruption vary. But for the purpose of the TI Sauce Book, “Corruption” involves behaviour on the part of officials in the public sector, whether politicians or civil servants, in which they improperly and unlawfully enrich themselves, or those close to them, by the misuse of the public power entrusted to them. That definition is relevant to the construction of section 91 of the Penal Code." 
23. 	Counsel argued that as section 91(a) uses the adverb ‘corruptly’ rather than the noun ‘corruption’ this Court should now provide a definition for the word ‘corruptly’. The Courts have recognised the difficulty and danger in doing so.
24. 	Clearly, the word ‘corruptly’ is an adverb. It is from the same stem as the word ‘corruption’ discussed in Rojumana v Regina. For the purpose of that case the Court held:
	“corruption involves behaviour of official in the public sector, whether politicians or civil servants, in which they improperly and unlawfully enrich themselves, or those close to them, by the misuse of the public power entrusted to them.”
25. 	That definition is consistent the Houses of Lords decision in Cooper v Slade [1858] 10 ER 1488 where Willes J held:
	“I think the word corruptly in this statute means, not dishonestly, but in purposely doing an act which the law forbids … In that case the Court was concerned inducing voters to vote in a particular way or rewording them for having done so”.
26. 	In R v Wellburn [1979] 69 Cr App R 254, the English Court of Appeal approved what had been said in the court below: 
	“Corruptly is a simple English adverb and I am not going to explain it to you except to say that it does not mean dishonestly. It is a different word. It means purposely doing an act which the law forbids as tending to corrupt.
27. 	In Papua New Guinea, the authorities were considered in State v Toamara [1989] PNGLR 24. The Court was concerned with an allegation of bribery. The Court noted the different approaches by the courts in England, citing two cases that equated the word ‘corruptly’ with the word ‘dishonestly’ then referred to the line of cases that said ‘corruptly’ did not mean ‘dishonestly’ but purposely doing an act which the law forbids. The Court went on to say:
	“The ordinary meaning of the adverb corruptly is wider than dishonestly. Dishonestly may certainly be an ingredient of corruption, but the concept is wider.”
	The Court then said: 
	“when the word is linked with the taking of bribes ‘corruptly’ is closer to ‘dishonesty’ as a concept.”
	The Court found in the circumstances of that case, concerned as it was with an allegation of bribery, the State had to prove dishonesty. 
28. 	In Australia McPherson SPJ reviewed decisions of the common law in Re Austin [1994] 1 QdR 225. He found that a person who uses a power of or incidental to a public office to obtain some private advantage or for any purpose foreign to the power will use the power ‘corruptly’.
29. 	In Willers v R [1995] 81 A Crim R 219 the Court of Appeal considered the use of the word ‘corruptly’ in section 83 of the Code. The Court said that the submission that so long as the officer acted within the scope of his authority he could not be said to be acting ‘corruptly’ even though he gained a benefit for himself or caused a detriment to another must be rejected.
30. 	In Director of Public Prosecutions v Pirone [1997] 68 SASR 106 the Court held that conduct which involves an abuse of a public office can properly be described as ‘corrupt’ in the sense of an exercise of authority for an improper purpose. The Court cited the authorities of Willers v R and Re Austin.
31. 	The word ‘corruptly’ was considered in the New Zealand Court of Appeal in R v Leolahi [2001] 1 NZLR 562. In that case, an employee of the Inland Revenue had released to an individual, information gathered by the Inland Revenue Department. The Court said:
	“we do not consider it prudent to seek to proffer a precise definition of what is meant by the word “corruptly” in s 105A. In broad terms, however, it connotes the improper use by an official of information which belong to a government body. The official abuses his or her official capacity and the trust that is replaced in them as a holder of a public office.”
32. 	In Field v R [2011] NZSC 129 the New Zealand Supreme Court conducted a thorough review of the authorities. At paragraph [53] cited Cooper v Slade recording that the Court had rejected the argument that the Crown had to show the defendants had dishonestly intended to weaken the recipient’s loyalty to the Crown. And summed up in the following way:
	“‘Corruptly’ is a simple English adverb and I am not going to explain it to you except to say that it does not mean dishonestly. It is a different word. It means purposefully doing an act which the law forbids as tending to corrupt”.
33. 	The Supreme Court then went on to apply this to the New Zealand legislation.
34. 	The full Court of Appeal of Vanuatu in Public Prosecutor v Tabimasmas [2021] VUCA 14 considered the meaning of the word corruptly and cited lengthy passages from Field v R. At paragraph [22] the Court of Appeal said:
	[22] The effect of this is that “corruptly” is to be given its ordinary meaning. The breadth of circumstances that could apply show that it is unproductive to try to burden a word in common usage with restrictive meanings and rules. As the Supreme Court said of the Court of Appeals statement in Field set out at [16] above it is a comment. But it can also be a helpful comment in assessing the improper behaviour to see if it has been carried out “corruptly”.
35. 	The prosecution then would satisfy the meaning of the word corruptly for the purpose of this appeal if it proved the Appellant had discharged his duty for an improper purpose. The definition in Rojumana v Regina goes further and requires proof that the Appellant unlawfully enriched himself or those close to him by the misuse of the public power entrusted to him. Having considered all these authorities the submission that the learned Magistrate was wrong to follow the guidance given in Rojumana v Regina must be rejected. The Magistrate was not required to make a finding that the Appellant had acted dishonestly.
36. 	Certifying the roadworthiness of the vehicle AB7564 and subsequently acknowledging payment for the hireage of the vehicle certainly entitled the Magistrate to conclude as she did at paragraph [41] that the acts of the Appellant have gone beyond a mere conflict of interest. The certification was an act in his official capacity that has directly resulted in a personal benefit to him.
Submissions relied on to challenge the finding that the Appellant acted corruptly
37. 	Counsel for the Appellant has raised a number of carefully presented arguments to challenge the finding of the Magistrate. So far as count 1 is concerned he submitted that as the Director of Mechanical Engineering he was required to certify the roadworthiness of the vehicle. He said he has properly done so. It was submitted that the issue is one of public safety. It was further submitted that the Appellant was no longer an employee of the MID when the agreement was finalised. He was not the person who authorised the agreement.
38. 	These arguments all ignore the fact that he was the person who had the duty to check the roadworthiness of vehicles to be hired by the Government. Without his certification of the vehicle, the vehicle could not be hired. He certified the vehicle it was then hired out from the family business, which in turn received the hire payments. It is not relevant that the vehicle may have been fit for the purpose nor that the permanent secretary approved the agreement. By certifying the vehicle, he was able to subsequently receive payments from the Government in relation to that vehicle.
39. 	The Appellant also submitted that declarations of the earnings of the business were made to the Leadership Commission, which had taken no steps against him. This is totally irrelevant. Similarly, he submitted that the payments were all appropriately processed by officials at the Ministry of Finance and Treasury. Again, this has no relevance at all. The Magistrate was required to consider the evidence before her to determine whether the elements of section 91(a) were proved to the required standard. Finally, he submitted that potential witnesses could have been called by the prosecution but were not. These are persons who were involved in the processing of payments. Again, this submission must be rejected. The Magistrate had to determine the matter on the basis of the evidence placed before her. If that evidence proved the essential elements beyond reasonable doubt the charge would be proved, if not it would be dismissed. The Magistrate carefully considered all the charges faced and acquitted the Appellant on some and convicted on others depending on the evidence.
40. 	The conclusion by the learned Magistrate that the prosecution had proved count 1 beyond reasonable doubt was a finding available to her. Ground 1 is therefore, dismissed.
Counts 6 to 13
41. 	Counsel dealt with these counts together. It was appropriate to do so. The same issues are involved with each count. While I must consider each count, which is the subject of this appeal, it is helpful to deal with them together. There is largely no dispute as to the relevant facts for these counts. The Appellant was the Permanent Secretary of the MID and therefore a public servant. He approved the hire of a vehicle owned by his family business Krash Transport and Marketing. He approved the hire agreement. The business subsequently issued invoices for the hireage. The Appellant granted authority for the payment for the hire of the vehicle. A payment voucher was then prepared. The Government then prepared an ANZ cheque for payment of that voucher when was paid into the bank account of the family business.
42. 	The issue in relation to each count was whether this evidence proved official corruption as required by section 91(a) of the Penal Code.
43. 	The Appellant submitted that he was obliged to do what he did in terms of his role as Permanent Secretary. He submitted that the Public Service (Government Properties) (vehicles and plants) specify that the Permanent Secretary can authorise the use of vehicles and that no vehicle or plant may be hired from other sources without the approval of the Permanent Secretary. The Appellant submitted that he was obliged to make the approvals because of his position.
44. 	This argument must be rejected.  He was entrusted with responsibility for public funds and was approving amount documentation and payments to his own family company. This was precisely the conflict of interest that the Magistrate found was present and was contrary to Financial Instruction 2010 at P736, which is set out at paragraph [36] of the Judgment. It provides:
	“No PR form can be prepared that will benefit the officer who certifies or authorises the payment request form”
45. 	The learned Magistrate recorded at paragraph [37]:
	“This is re-iterated in form C4 the compliance check list which under FI P744 reads: “PV/PR has been signed by authorised person (and not approving payments to themselves)”
46. 	It is clear that if the Appellant wished to engage in the business of hiring cars to the company through his family business he could not do so as the Permanent Secretary of the MID. Nor could he do so if he was certifying the roadworthiness of such cars, which would then enable the family business to hire out vehicles to the Government. The conflict of interest prohibited for a public servant is immediately apparent.
47. 	The learned Magistrate was entitled to find all the elements of each count proved. It did not matter that the payments were approved by those processing payments at the Ministry of Finance and Treasury. The Appellant argued that the documents were prepared by others and he signed documentation as he was required to do. By signing the documentation, he has contributed to the preparation of that documentation.
Counts 14 and 15
48. 	Counts 14 and 15 are the same as counts 6 to 13 with the exception of the dates. Part way through the hire period in count 14 the Appellant was removed as an owner of the family business Krash Transport and Marketing and was replaced by Sonny Aife, as previously discussed. This can only be seen as an attempt to hide the benefit that the family business was receiving from the Appellant’s role as Permanent Secretary. The address and bank account had not changed. Section 91(a) is wide enough to capture payments to the business with the inclusion of the words “receives… any benefit …for himself or any other person on account of anything done”.
49. 	For the same reason the fact that the dates in count 15 are after the change recorded in the name in the business, make no difference. The Magistrate was entitled to conclude that the benefit was for another person. In fact as it was the family business which the Appellant acknowledged, it became a benefit to the appellant himself. The Magistrate was entitled to conclude that the elements of both counts were proved to the required standard.
Conclusions on the grounds of appeal
Ground 1 – Change of name in business documents
50. 	The change of name to Sonny Aife as one of those controlling the family business must be seen simply as a device. Clearly, the Appellant appreciated that he could not be rewarding himself as he carried out his duties as Permanent Secretary. Section 91(a) is framed wide enough to capture such a device. By approving the payment of public funds to benefit Krash Transport and Marketing. The prosecution allege that Sonny Aife is a member of his family. Even if that were not so, the business remained a family business so that the Appellant and his family received a benefit.
51. 	There is no merit in this ground, which is dismissed.
Ground 2
52. 	The Appellant argues that it was Krash Transport that benefited from the contracts. Krash Transport was the Appellant’s family business. It is not a separate entity. It was in fact the Appellant and his wife. It continued to benefit him when his name was removed, as it remained a family business with the same address and same bank account. The Appellant used his position to benefit his family, which is a benefit to himself. It is also a benefit to another. Section 91(a) captures both situations. There is no merit at all in this ground, which is dismissed.
Grounds 3 and 4– Financial Instructions
53. 	The Appellant had placed himself in a position where there was a huge conflict of interest. This was identified by the learned Magistrate as contrary to the Financial Instructions, which at P736 required him to avoid a conflict of interest. The Magistrate was entitled to conclude from this evidence together with all the evidence acknowledged by the Appellant that he was acting contrary to the rules provided using public money to enrich himself and his family. The Appellant’s argument that by authorising payments he was merely fulfilling his duties as the Permanent Secretary. This argument cannot possibly succeed. Section 91 is clearly to prevent a public servant from benefit personally in the manner he carries out his duties. The learned Magistrate was clearly correct to reject such a submission. Grounds 3 and 4 must both be dismissed.
54. 	The learned Magistrate was aware that the returns had been filed with the Leadership Commission. The fact that such returns were filed can only be relevant as one of the factors to be taken into account when concluding whether the Appellant did what he did ‘corruptly’. Another factor was the decision to change his name for that of Sonny Aife in the ownership of Krash Transport and Marketing. The Appellant would not have needed to do that unless he appreciated that his actions were corrupt.
Ground 5 – Extension of contracts signed by previous Permanent Secretary
55. 	The learned Magistrate clearly set out the relevant facts for each count. She was clearly aware of those contracts that were authorised by the previous Permanent Secretary. The learned Magistrate considered the elements of each count. Authorising a payment to Krash Transport and Marketing would be caught whether the contract had first been approved by the Appellant or his predecessor. He simply could not do it, for to do so would place him in the very position that would be caught by section 91. He could not place himself in the position where he uses public money to benefit himself or his family. This ground must be dismissed.
Ground 6 – Elements of the offence
56. 	The Appellant submitted that the learned Magistrate used the totality of the evidence when determining whether the essential elements of each offence were proved. The learned Magistrate was careful to set out what the evidence was and identified the issue in each count. She did not simply take a global approach. She even acquitted the Appellant on some counts, which demonstrates that she did not simply take a global approach. Having identified the relevant evidence and the matters that were in issue she appropriately determined what had been proved beyond reasonable doubt. The principal issue as acknowledged by counsel for the Appellant was whether he had acted corruptly.
57. 	The learned Magistrate was not only entitled to consider all the evidence that was relevant to that issue, she was obliged to do so. She did not fall into the trap of saying that because she found one count proved that the other counts are also proved. The submission made does not reflect the approach taken by the Magistrate. There were some issues that were common to all counts. It was appropriate that those matters be dealt with together rather than being re-visited in relation to each count. This ground must be dismissed.
Ground 7 – Conflict of Interest vs duty of Appellant
58. 	Although the Appellant refers to section 91(1) of the Penal Code in this ground, I treat the reference as being to section 91(a) as the Penal Code does not have a section 91(1).
59. 	This ground simply is a re-working of other grounds put forward. The learned Magistrate identified the conflicts of interest and the prohibition on acting where there is such a conflict. While the offence does not specifically identify a conflict of interest in those words it prohibits a public servant from carrying out his duties in a manner that gives a personal benefit to him or to another person, such as his family. The conflict of interest was therefore at the centre of the allegations against the Appellant. Had he not acted in the dealings where there was a conflict of interest there would be no offence. He chose to act in circumstances where there was a conflict of interest and did so in breach of the rules that applied to his work as a public servant.
60. 	It follows that the issue of conflict of interest was necessarily central to the Courts deliberations. This ground must be dismissed.
Ground 8 – Meaning of Corruptly
61. 	As set out in the review of the authorities the definition of corruptly relied on by the learned Magistrate being the definition provided in Rojumana v Regina placed a higher standard on the prosecution than was necessary. I reject that the prosecution had to prove dishonesty. The line of cases that have required such proof are not binding on the Court and were generally limited to cases where bribery was involved. I consider the conclusions set out in Field v R and in Public Prosecutor v Tabimasmas are consistent with the approach that recognises that corruptly is a different word from dishonestly and has a wider meaning. I find that the definition adopted by the learned Magistrate was appropriate and was correctly applied. This ground is dismissed.
Ground 9 – Approach to each count
62. 	As with Ground 7, the Appellant refers to section 91(1) of the Penal Code. I treat the reference as being to section 91(a) as the Penal Code does not have a section 91(1).
63. 	It is incorrect to say that the Magistrate did not discuss the evidence in relation to each count. She identified evidence she identified the issues, she dealt with the issues and correctly applied Rojumana v Regina. The submission that she aided and abetted the prosecution from performing the duty of the prosecution has no basis at all.
64. 	As set out in detail, the learned Magistrate correctly applied Rojumana v Regina. She correctly identified the elements to be proved and the matters that were in issue. When not persuaded beyond reasonable doubt she acquitted the Appellant. When she was satisfied, that evidence reached the required standard of proof she convicted him. She was entitled to consider the evidence in the manner she did when she drew conclusions as to whether the Appellant had acted corruptly. There is no merit in this ground, which is dismissed.
ORDERS OF THE COURT
1.	All the grounds of appeal are dismissed.
BY THE COURT
Hon. Justice Howard Lawry
PUISNE JUDGE