Patel v Fiji Independent Commission Against Corruption [2011] FJCA 56; AAU0040.2011 (28 October 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO.AAU0039 OF 2011
CRIMINAL APPEAL NO.AAU0040 OF 2011

BETWEEN:

1. MAHENDRA MOTIBHAI PATEL
2. TEVITA PENI MAU
Appellants

AND:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
Respondent

Coram: Hon. Justice Salesi Temo, Justice of Appeal
Hon. Justice Kankani Chitrasiri, Justice of Appeal
Hon. Justice A.L.B. Brito-Mutunayagam, Justice of Appeal
Hon. Justice William Marshall, Justice of Appeal

Counsel: Mr H Nagin for the 1st Appellant
Mr D Sharma for the 2nd Appellant
Mr N Marasinghe and Ms S Sanmogam for Respondent

Date of Hearing: Wednesday, 30 September 2011
Date of Judgment: Friday, 28 October 2011

JUDGMENT

Salesi Temo, JA

1. I agree with the judgment, the reasons and the proposed orders of William Marshall JA.
   

Kankani Chitrasiri, JA

2. I also agree with the judgment, the reasons and the proposed orders of William Marshall JA.
   

A.L.B Brito-Mutunayagam, JA

3. I too agree with the judgment, the reasons and the proposed orders of William Marshall JA.
   

William Marshall, JA

4. In the 18th century the common law was forced to engage with misconduct by the holders of public office in the course of carrying out their public duties in respect of their offices. The pressure arose from the successful impeachment of Robert Clive in respect of his service in India and the accumulation of great personal wealth that accompanied it. The United Kingdom although losing its American colonies, was in a continuing process of acquiring new and additional colonies. It was of paramount importance that if the United Kingdom government was to provide good, transparent and acceptable governance in respect of its expanding Empire, that misconduct in a public office, whether or not involving actual corruption, in the sense of money or money's worth changing hands in return for a favourable decision would be found to be an offence contrary to the common law. It was equally important that these offences should assist governance in the United Kingdom itself.
   
5. The following extracts concerning the early history are taken from the judgment of Sir Anthony Mason N.P.J. in Shum Kwok Sher v. HKSAR FACC 1 of 2002 dated 10th July 2002. He said at paragraphs 66, 67, 70, 71, 72 and 73:
   

"66. The offence of misconduct in public office has a long history, going back at least to 1704. In that year, in the case of Anonymous (1704) 6 Mod 96 (Case 136), the Court said:

"If a man be made an officer by Act of Parliament, and misbehave himself in his office, he is indictable for it at common law, and any public officer is indictable for misbehaviour in his office."

A year later, in R v. Wyat (1705) 1 Salk 380 the offence was expressed again in very broad terms when the Court said:

"Where an officer neglects a duty incumbent on him, either by common law or statute, he is for his default indictable."

67. Since then there have been many cases in which public officers have been convicted of the offence. It must be acknowledged, however, that over time the elements of the offence have been described in a variety of different ways. Thus, Stephen's Digest 9th Edn (1950), art. 142 stated:

"Every public officer commits a misdemeanour who, in the exercise or under colour of exercising the duties of his office, does any illegal act, or abuses any discretionary power with which he is invested by law from an improper motive ... But an illegal exercise of authority, caused by a mistake as to the law, made in good faith, is not a misdemeanour ..."

In R v. Borron (1820) 3 B & Ald 432, a case concerning the conduct of a magistrate, Abbott CJ stated (at 434) that the question was "from what motive had [the act] proceeded; whether from a dishonest, oppressive, or corrupt motive." And, in R v. Marshall [1855] EngR 57; (1855) 4 EL & BL 475, Lord Campbell CJ said that "a judge who maliciously obstructs the course of justice is guilty of a misdemeanour." Similar statements have been made in other cases. (See, for example, R v. Young and Pitts (1758) 1 Burr 556; Commonwealth v. Steinberg (1976) 362 A 2d 379). On the other hand, there are other authorities which state that a breach of duty on the part of a public official committed with wilful intent is all that is required to make out the offence. (See, for example, Bacon's Abridgement 1740 ed. at 744; R v. Halford (Case 223) (1734) 7 Mod 193; Question of Law Reserved (No.2 of [1996] SASC 5674; 1996) 88 A Crim R 417 at 418, per Doyle CJ)...

70. Lord Mansfield appears to have recognised this problem as early as 1783. In R v. Bembridge (1783) 22 ST 1, his Lordship spoke (at 155-156) of two principles, one governing the office holder who accepts an office of trust and confidence concerning the public and acts "contrary to the duty of his office", the other governing "a breach of trust, a fraud, or an imposition in a subject concerning the public". Both principles were held to apply to Bembridge, an accountant in the office of the paymaster-general of the forces. It was his duty to see that amounts owing to the Crown were properly included in the account. Not only did he fail to perform his duty in respect, he "corruptly" concealed from the auditors the existence of amounts owing.

71. It is not entirely clear whether Lord Mansfield's reference to two principles was intended to relate to the one offence or two different offences. Be that as it may, in the later cases, the offence has been regarded as a single offence.

72. It was only natural that, in the course of time, the description of the offence tended to focus on the nature of the misconduct charged, more particularly in those cases where the misconduct complained of was not a simple breach of a positive duty to which the officer was subject, but constituted of a failure to exercise, or amounted to a wrongful exercise of, a discretion or power, as, for example when an officer exercised a discretion or power attaching to his office for personal gain or advantage. There were other cases where the officer acted outside the scope of the powers of his office.

73. Most of the reported cases in the 18th and 19th centuries involved dishonest, corrupt or partial conduct on the part of officeholders who, in performing their functions or exercising their powers, did so for personal gain or personal advantage. In describing the relevant conduct, the courts referred to the defendant's motive as "dishonest", "corrupt", "partial" or used some other adjective to describe an improper motive. These descriptions appeared to reflect a view that, in some cases at least, a motive so described must be established before the defendant could be convicted of misconduct in public office."

6. In 1970 in the Colony of Hong Kong as a response to entrenched and systematic corruption by junior police officers the Hong Kong Government passed the Prevention of Bribery Ordinance and the Independent Commission Against Corruption Ordinance. The new offences and the extensive investigative powers combined with the creation of ICAC made a huge difference in Hong Kong in the years following 1970. Now Hong Kong is recognised as a world leader in prosecuting and preventing all forms of public sector and private sector corruption. The 1970 Hong Kong legislation mutatis mutandis was brought into law in Fiji by decrees in 2007. As is shown by the facts of Shum Kwok Sher (supra) while the ICAC in Hong Kong fully utilise the extensive powers conferred by the Prevention of Bribery Ordinance where there are pecuniary advantages conferred on public servants, they rely heavily on the common law offence of misconduct in a public office where there is no evidence of passing of money or advantages from the favoured party or parties to the public servant granting the favours. ICAC in Hong Kong since 1970 have used misconduct at common law in many cases. It is a necessary tool if there are those in the public service of a country, who for whatever reason believe that it is acceptable to grant a favour or favours to their friends or relations, individual or corporate when the State hands out contracts for goods or services. If tender and related procedures are followed and conflict of interest declarations are made, contracts may in the end go to the same supplier. But the terms of contracts including price will be seen, as having been arrived at fairly and it will be transparent that government contracts have not been used to provide economic benefit beyond what is fair and proper to friends or relatives, individual or corporate. If friends or relatives, individual or corporate submit the best tender in a fair process there is no reason why they should not be awarded the government contract. In such a situation the "playing field will have been a level one".
   
7. Mr Mahendra Motibhai Patel now aged about 70 years has a distinguished record as an entrepreneur, business leader, and business administrator in Fiji. However this case is unusual of its type. For one thing Mr Patel is Chairman of a number of companies in the same group in the private sector. Whether the conglomerate is vertically or horizontally integrated, it will be appropriate when supply contracts are being decided upon to favour a company within the group. This requires neither tender procedures nor declarations of conflict of interest. This case is also unusual in that the Chairman of a large conglomerate which in legal form is a publicly listed company also chairs a public corporation. Usually it is the public servant favouring a friend or relative, corporate or individual who is not employed in the public service.
   
8. It would not be surprising if after nearly a lifetime as leader of a successful group in the private sector, Mr Patel was unaware of the differences when employed leading a public body or corporation. The most importance of these revolve around "misconduct". A career civil servant knows all about this – or should do.
   
9. This Court is in place to decide criminal causes one way or another in accordance with law. The enactment of FICAC legislation in 2007 and that agency's enforcement's efforts may have a perceived background in the minds of some. It is not the job of this Court to speculate on what is not in evidence on the record before it. The Court of Appeal must ascertain the law and apply it to the facts just as in any other criminal case.
   
10. It may be that Mr Patel after becoming Post Office Chairman in 1999 quickly learned about misconduct and these differences in operating within the public service. Mr Tevita Peni Mau is the second Appellant in this case. For forty odd years Mr Peni Mau has been an exemplary public servant starting from the bottom and rising to the top as Chief Operating Officer of Post Fiji. It is a tragedy in both cases. But the task of this Court of Appeal is to apply the legal framework pertaining to criminal appeals with objectivity and fairness to the verdicts in this case and to establish whether the convictions must remain or be replaced by substantive or qualified acquittals.
    

The offences in Fiji relating to misconduct in a public office
and the charges in this case

11. The codification of parts of the common law is controversial because the common law offences become adapted as time and circumstances change by authoritative judicial interpretation. After the criminal law of India was codified in the nineteenth century, Queensland in 1899 became the first of three Australian states to codify its criminal law. The act was the "The Criminal Code Act 1899" which in the First Schedule contained "The Criminal Code of Queensland".
    
12. In section 92 of the Criminal Code of Queensland the following offences are described:
    

"92. Abuse of office. Any person who, being employed in the Public Service, does or directs to be done, in abuse of the authority of his office, an arbitrary act prejudicial to the rights of another is guilty of a misdemeanor, and is liable to imprisonment for two years.

If the act is done or directed to be done for purposes of gain, he is liable to imprisonment with hard labour for three years".

In Fiji Section 111 of the Penal Code is in almost identical terms. The section says:

"Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanour.

If the act is done or directed to be done for purpose of gain, he is guilty of a felony, and is liable to imprisonment for three years".

13. For some reason Fiji decided to adopt the Queensland Criminal Code rather than to proceed in administering the criminal law by way of common law offences. Many common law offences were defined in nineteenth century England by statutes such as the Offence against the Person Act 1861. This process tended to repeat but tidy up the common law offences. But most importantly, common law offences were continuing to be refined and defined by authoritative court decisions to meet emerging problems of society and to be in line with developing contemporary legal principles. In respect of statutory offences based on common law offences, a similar process of refinement and definition has taken place and continues to take place through authoritative court decisions. Criminal codes are subject to this same process. But if the language used in the codified offence for some reason differs from the earlier common law offence there are implications for the interpretation of the elements of the codified offence. If there has been authoritative clarifications and restatements by the courts of the common law offences in the wider common law world, it will usually be the case that these interpretations will also be held to apply to the elements of the codified offence. This is so where the codified offence has used different language to express the core elements of the common law offence.
    
14. There is an important Fiji Supreme Court decision on these tensions in interpreting a codified offence where the wording of the common law offence is significantly different and where the common law offence has been developed for 21st century conditions in accord with contemporary jurisprudential concerns. Two of three judges sitting were world rated jurists and sitting with them was the respected former President of the Court of Appeal Sir Timoci Tuivaga. Sir Anthony Mason was a former Chief Justice of Australia who now influentially sits on the Court of Final Appeal in Hong Kong. Sir Robin Cooke had been Chief Justice of New Zealand and would later as Lord Cooke of Thorndon sit on the Privy Council. It is not surprising that the appeal concerned a petition from one Beniamino Naiveli who had while Assistant Commissioner of Police, ordered the eviction of the lawful occupier of a residence being purchased by Beniamino Naiveli. Beniamino Naiveli's defence was that he honestly believed it was legal to take criminal proceedings under section 197. The Supreme Court were concerned with alleged misdirections of the trial judge. In discussing the summing up the Supreme Court said:
    

"Later the trial judge told the assessors:

"The burden of his [the accused's] evidence was that he did everything bona fide."

These passages indicate that the issue thereby presented to the assessors was whether the accused's conduct was motivated by personal advantage, as on its face it plainly appeared to be, or by an honest belief that he was properly invoking S.197

The result was that the petition was refused because the trial judge had in a number of passages given the necessary directions to the assessors while not stating them in appropriate language.

15. The case is Beniamino Naiveli v. The State [1995] FJSC 2 with judgment on 23 November 1995. In the present case it is important in a number of ways. The case discusses the mental element required for section 111 and the way in which interpretation of the differently worded common law offence of misconduct in a public office guides the correct interpretation of section 111. Their Lordships in Naiveli said:
    

"Central to the commission of an offence under S.111 is the doing or directing to be done of an arbitrary act, "in abuse of the authority of" the accused's "office". What differentiates something done in abuse of office from something not done in abuse of office in many cases will be the state of mind of the accused. An act or direction given, which is otherwise within the power or authority of an officer of the public service, will constitute an abuse of office if it is done or given maliciously with the intention of causing loss or harm to another or with the intention of conferring some advantage or benefit on the officer. They are just two instances of abuse of office. No doubt other instances may be given. But it would be unwise for us to attempt an exhaustive definition of what constitutes an abuse of office, to use a shorthand description of the statutory expression "abuse of the authority of his office".

Although provisions of S.111 do not reflect the language in which the common law offence of misbehaviour in a public office has been expressed, some guidance in the interpretation of the section is provided by the English authorities on the common law offence. In R v. Dytham (1979) 3 All ER 641, Lord Widgery CJ, pointed out (at p.643) that in most of the 18th and 19th cases the misconduct asserted involved some corrupt taint but that this was not a necessary incident of the offence. His Lordship went on to say that in some cases the conduct impugned cannot be shown to be misconduct unless it was done with a corrupt or oblique motive.

That was the case in R v. Llewellyn Jones (1967) 51 Cr.App.R.4 where his Lordship expressed the view (at p.6) that:

"if the registrar of a country court when exercising his power to order payment out of court of money held on behalf of a beneficiary were to make an order in expectation of some personal benefit which he hoped to obtain and in circumstances where, had it not been for the personal benefit, he would not have made the order, that would be an example of misconduct in a public duty..."

On the other hand, his Lordship was disposed to take a different view of a situation in which the registrar makes a decision affecting his own personal interests, if the decision be made honestly and in a genuine belief that it is a proper exercise of his jurisdiction so far as the beneficiaries and other persons are concerned (see p.7)."

16. In this present case we are concerned not with using legal powers in the criminal law for improper purposes such as evicting a person in lawful possession of a residence from her home. We are, in my view concerned however with "other instances of abuse of office". Just as their Lordships in Beniamino Naiveli laid down guidance based on R v. Dytham [1979] 3 All ER and R v. Llewellyn Jones [1967] 51 Cr. App. R. 4 this court can derive assistance and guidance from later cases which are concerned with giving government contracts to friends and relations, corporate or individual and which comment authoritatively on this well-known strand of "abuse of office". This strand is often referred to as "misconduct by partiality".
    
17. If Naiveli relates to one of two principal strands of use of the offence of misconduct in public office, it is probably the case that those concerned with the improper handing out of government contracts is now the other principal strand. While expressions and as "arbitrary act" and "abuse of authority of office" have obvious meaning in respect of cases such as Beniamino Naiveli. I have no doubt that their use and applicability will benefit from examination of the authorities in the other strand which relate to the handing out of government contracts. Fortunately there is authoritative guidance in the case of Shum Kwok Sher v. HKSAR to which I have referred above per Sir Anthony Mason now sitting as a Non Permanent Justice of the Court of Final Appeal in Hong Kong. Shum Kwok Sher was concerned with handing out contracts to friends or relatives, corporate or individual.
    

Trial by Judge and Assessors in Fiji – What Happened in the Court Below

18. What happened in the Court below raises complex issues concerning the legal framework governing criminal trials in the High Court. That in turn raises similarly complex issues concerning legal frameworks governing the hearing and adjudication of criminal appeals. In Fiji appellate courts since around 1988 are the Court of Appeal and the Supreme Court. Finally there are issues of judicial usurpation of legislative power. That is because of what on its face seems to have been an exercise in judicial legislation by a Court of Appeal in 1986 in a criminal appeal entitled Mataiasi Raduva and John Heatley v. Reginam, Criminal Appeal 109 of 1985 with judgment on 4th July 1986.
    
19. In the present case the assessors by a majority of two to one gave an opinion of "guilty" in respect of Peni Mau. All three assessors gave an opinion of "Not Guilty" in respect of Mr Mahendra Motibhai Patel. Justice Daniel Goundar convicted Mr Tevita Peni Mau in accordance with the opinion of the assessors. Justice Daniel Goundar convicted also in the case of Mr Mahendra Motibhai Patel. This was in the exercise of his power to convict where the assessors had unanimously given "Not Guilty" opinions. Justice Daniel Goundar in delivering his verdicts on 12th April 2011 read out his reasons and his findings of fact in respect of convicting both accused persons. This was a comprehensive document comprising 7 folios of A4 size paper containing 35 paragraphs. In neither case could these written reasons be criticised as an incomplete summary.
    

The Decision in the Case of Shum Kwok Sher

20. Shum Kwok Sher was the Chief Property Manager of the Government Property Agency in Hong Kong between 1994 and 1998. The G.P.A. had the task of managing large tracts of land. They did this by inviting tenders from prequalified companies in the field of estate management. These were for a number of years and were of great value to property management companies.
    
21. Shum Kwok Sher had a sister in law called Stella Hui. The Hui family had incorporated Onclever Ltd in 1989. The company had security contracts in respect a large private sector housing development but not the management of that development's domestic premises.
    
22. Shum Kwok Sher was convicted of 4 charges of misconduct in a public office by a District Judge who in criminal matters sits alone without assessors or a jury. The four charges related to successive periods between 1994 and 1999. For small contracts Shum Kwok Sher instructed a subordinate, one Chan, to give all these to Onclever Ltd or to companies related to it. This instruction was executed by Mr Chan. In respect of prequalifying for tendering for large contracts a company had to have at least five years experience in management of residential estates. Onclever Ltd did not meet this condition. However Shum Kwok Sher wrote that it had such experience. By reason of this untruth Onclever Ltd was appointed to the list of prequalified tenderers. At no time did Shum Kwok Sher ever declare any conflict of interest. The Circular binding on civil servants was issued on 4th December 1992 and it was explicit and comprehensive. In respect of two very large contracts, one in 1997 and one in 1998, the contracts were awarded to Onclever Ltd after specific recommendations by Shum Kwok Sher. In both cases he repeated untrue facts concerning Onclever Ltd's experience and suitability. Again there were no conflict of interest disclosures.
    
23. In the Court of Final Appeal the leading judgment was given by Sir Anthony Mason NPJ who was one of the panel in the Supreme Court in the case Beniamino Naiveli cited above. At paragraphs 40 through 45 Sir Anthony Mason sets out the trial judge's findings and conclusions:
    

"40. The judge made the following findings. At latest since his visit to the Mainland with Paul Hui in September 1993, the appellant had known that Paul and Patrick Hui were brothers of Stella Hui, the wife of the appellant's younger brother, Eric Shum. Realising that the relationship posed a conflict of interests, the appellant failed to disclose the relationship to anyone in the GPA. Instead, he pushed Onclever to qualify in the pre-qualification exercise for Government tenderers though he knew perfectly well that Onclever did not have the required experience of 5 years in property management. He gave the Chan instructions in awarding contracts of less than $500,000 over which process he had control, and that resulted in over 90%, totalling in excess of $13 million, of such contracts in the relevant period being awarded to Onclever and its associated companies, Southern Services and AA Property. He also recommended Onclever to be awarded the management contract for the 10 military sites worth $56 million and that for the Kai Tak site worth $87 million, misrepresenting that it had the required experience. The Judge found that the reasons for the appellant's non-disclosure was "his desire to help and favour Onclever" and that in each case he was partial.

41. The judge said:

"In relation to the assessment panel I was sure that his moving of it to recommend Onclever for pre-qualification was due in significant part to his hidden connection to Onclever and not just due to a desire for new blood and greater competition."

42. The judge went on to find that the appellant acted dishonestly, applying the test in R v. Ghosh [1982] EWCA Crim 2; [1982] QB 1053, by deliberately not disclosing a connection that itself prompted a public officer to favour a company in a significant way. The Judge further found that the appellant "must have ... realised" that what he did was dishonest.

43. He also found that the appellant's voice raised in favour of the proposition that Onclever had met the criteria for pre-qualification, that he knew that Onclever did not meet the criteria, that he came to the meeting of the assessment panel knowing that Onclever did not do so but with the intention of having them pre-qualified if he could and that he successfully persuaded the panel to do so.

44. The judge found, in relation to the first three charges that Onclever was wrongfully pre-qualified and awarded the two contracts, that it was the appellant who caused the wrongful qualification and that, in relation to the fourth charge, that the appellant gave the Chan instructions.

45. The judge further found that the appellant's acts were calculated to injure the public interest in that the appellant, in each case, tilted in favour of Onclever what should have been a level playing-field."

24. In the Court of Final Appeal Shum Kwok Sher argued that in terms of the International Covenant on Civil and Political Rights (which is part of Hong Kong municipal law) and in terms of the relevant articles in the Basic Law of the HKSAR on the same issues the offence of misconduct in a public office at common law was too vague, uncertain and ill defined. Shum Kwok Sher also argued that the test for dishonesty laid down in R v. Ghosh [1982] QBD 1053 was uncertain and arbitrary. In the present case there are no particulars relating to dishonesty. Unlike in Shum Kwok Sher the contract for the clock was not obtained by an express deception. Consequently the argument concerning R v. Ghosh would not be relevant in the present case. In any event R v. Ghosh was found by the Court of Final Appeal not to be uncertain or arbitrary. Their unanimous judgment approves the authority of Ghosh and what it says about the meaning of dishonesty.
    
25. After detailed consideration of the history of common law offence of misconduct in a public office and detailed consideration of the appellant's arguments and the authorities on the points raised, Sir Anthony Mason NPJ concluded that, as he found the elements of the common law offence to be, there was no contravention of ICCPR as applied to Hong Kong or any other applicable human rights law. The common law offence of misconduct in a public office was not uncertain or arbitrary. He concluded in paragraphs 84 through paragraph 88:
    

"84. In my view, the elements of the offence of misconduct in public office are:

(1) A public official;

(2) who in the course of or in relation to his public office;

(3) wilfully and intentionally;

(4) culpably misconducts himself.

A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he is subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification. Subject to two qualifications, this statement of the elements of the offence accords with the [submission made on behalf of the HKSAR].

85. The first qualification is that, although the respondent submits that the misconduct must be either "wilfull" or "intentional", I consider that the misconduct must be "wilfull" as well as "intentional". In R v. Sheppard [1981] AC 394, the House of Lords considered a statutory provision which made it an offence "wilfully" to neglect a child in a manner likely to cause him unnecessary suffering or injury to health. By majority it was held that a person "wilfully" fails to provide medical attention for a child if he (i) deliberately does so, knowing that the child's health may suffer unless he receives attention; or (ii) does so because he does not care whether the child may need medical attention or not. In other words, "wilfully" signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act. Wilfulness in this sense is the requisite mental element in the offence of misconduct in public office, most notably in cases of non-feasance. There is no reason why the same mental element should not be requisite in cases of misfeasance and other forms of misconduct in public office. For this reason "wilfully" and "intentionally" are not employed disjunctively in the statement of the elements of the offence in the preceding paragraph.

86. The second qualification which I attach to the elements of the offence stated in the previous paragraph is that the misconduct complained of must be serious misconduct. Whether it is serious misconduct in this context is to be determined having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities."

Trial by Judge and Assessors in Fiji – The Legal Framework

26. The submission of Mr Reynolds QC on behalf of Mr Patel is that this Court of Appeal may intervene and restore the "not guilty" opinions as verdicts in the case of Mr Patel. Mr Reynolds QC says that if this Court of Appeal examines the evidence and finds that on the view of this Court the reasons for the trial judge Mr Justice Daniel Goundar rejecting the opinion of the assessors are not cogent and/or not clearly stated or that they are not capable of withstanding critical examination in the light of the evidence presented in the trial, this Court should acquit Mr Patel. On behalf of Mr Peni Mau, Mr Sharma urges on examination of the evidence relating to his client on the same criteria. This, although Mr Peni Mau was given the opinion of "guilty" by two out of three of the assessors. Mr Sharma also makes this submission in face of the fact that by statute the trial judge does not have to give his full reasons where his proposed verdict is in accord with the majority opinion of the assessors.
    
27. This raises a number of common law issues. The jury of twelve good men with finality of decision making power was the prized norm for England, the United States Colonies and later for Canada, Australia and New Zealand. This was because the institution of the jury was long established over hundreds of years and culturally accepted by Anglo-Saxon peoples. These peoples were experienced in its operation. While it was not a perfect system, its aberrations and uncovenanted verdicts of acquittal or of finding guilt were few and far between. A factor that assists with trial by jury is the relative cultural homogeneity of places like England and the other places mentioned above. Another factor was that reliability of a jury is safeguarded by numbers and other qualifications of jurors. In England 12, in Scotland 16 and in Hong Kong 7. A further factor was that in England, until comparatively recently, all twelve jurors must be unanimous. Now it must be the agreement of at least ten out of twelve.
    
28. When it came to Colonies and Protectorates overseas, jury trial was established for cases involving those of Anglo-Saxon origin. But for the majority of people and in Fiji that meant I Taukei Fijians and those "of Asiatic origin or descent", the assessor system was chosen. Assessors of the same cultural identity as the accused were selected to assist the presiding judge with their opinions on fact. The presiding judge in this system is the tribunal of fact.
    
29. Probably from about the late 1870's until around 1973 sections 246 and 306 of the Criminal Procedure Ordinance regulated trial by assessors in Fiji. Section 246 together with section 306 said:
    

"Section 246. Every trial before the Supreme Court in which the accused or one of them or the person against whom the crime or offence has been committed or one of them is a native or of native descent, or of Asiatic origin or descent, shall be with the aid of assessors in lieu of a jury, unless the presiding judge for special reasons to be recorded in the minutes of the Court things fit otherwise to order, and upon every such trial the decision of the presiding judge with the aid of such assessors on all matters arising thereupon which in the case of trial by jury would be left to the decision of the jurors shall have the same force and effect as the finding or verdict of a jury thereon.

Section 306(1). When, in a case tried with assessors, the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence, and shall then require each of the assessors to state his opinion orally, and shall record such opinion.

(2) The judge shall then give judgment, but in so doing shall not be bound to conform to the opinions of the assessors."

30. The important difference between jury trial and trial with assessors lies in subsection (2) of section 306. The perception was that jury trial would not operate acceptably where there was no longstanding cultural experience of it. There would be too many cases with acquittals or convictions not in accordance with the evidence in the view of the presiding judge and an informed observer, if that imaginary person of later jurisprudence were to attend the whole proceeding. At the same time the assessors would act in a similar way to a jury where the presiding judge found that their views, if given due deference on account of their knowledge of local culture, were acceptable and coincided with his own views and findings on the facts on the case. In most cases a majority of assessors consists of the opinion of just two people. Without larger numbers and a requirement of unanimity, the risk of uncovenanted opinion is unacceptably high.
    
31. It is true section 306(2) applies to opinions of the assessors in favour of "guilty" verdicts, where the trial judge might take the view that on the evidence there should be an acquittal. I have mentioned that situation in the previous paragraph. I do not propose to refer to it in later discussion. In my view there are situations where the trial judge should acquit despite the contrary opinion of the assessors. But it seems never to have arisen in the long operation of trial with judge and assessors in Fiji. All the cases refer to opinions of acquittal followed by conviction by the learned judge.
    
32. One difficulty of section 246 with section 306(2) is the requirement that the accused and the assessors be of the same culture. On one hand, assessors of the same culture are in a good position to judge how a person from their culture would behave in the circumstances postulated by the evidence. On the other hand they might not give opinions in accordance with their oath or the evidence if they empathised culturally with the accused or felt that a person of their culture might be to some extent a victim of those from other cultures.
    
33. This tension was exposed in a case in 1958. It was Ram Lal v. The Queen Criminal Appeal No.3 of 1958. The Court of Appeal in Ram Lal (and I take this from the report of Ram Bali v. Reginam 7 Fiji Law Reports 80 at page 83) said:
    

"In order to justify a Court in differing from the unanimous opinion of the assessors who were in a favourable position to assess the reactions of a man of the class and race they would find the accused to be, there must be very good reasons reflected in the evidence before that Court. ...

... A trial Judge would require to find very good reasons indeed, reflected in the evidence, before being justified in differing from a unanimous opinion of the assessors on such a question of fact."

34. The issue in Ram Lal was provocation in a trial for murder and that is an issue on which the reactions of persons from another culture might be quite different. In Ram Bali the issue was whether the prosecution witnesses and evidence tending to identify Ram Bali as one of the perpetrators should be believed. Also whether his alibi should have been disbelieved. In Ram Bali at page 83 the Court of Appeal commented on the statements of the Court of Appeal in Ram Lal on this issue. It said:
    

"It will be observed that, in both of these passages, the Court was careful to limit its propositions to the particular sort of question which arose in that case, namely, the probable reactions to alleged provocation of a man of a particular class and race; and this present Court does not doubt that, on such a question, the Judge ought not to differ from a unanimous opinion of assessors unless he can find – and can find "reflected in the evidence" – very good reasons for so doing. But it would be wrong to erect this into a general proposition applicable in all cases. In general, it is enough if, as in the present case, the Judge proceeds on cogent and carefully reasoned grounds based on the evidence before him and his views as to the credibility of witnesses and other relevant considerations."

35. When Ram Bali was approved in the Privy Council, Lord Morris for the Board referred to this Ram Lal issue indirectly. Referring to the presiding judge at first instance Mr Justice Hammett he said:
    

"nor is there reason to think that he was unmindful ... of [the assessors] qualifications to assess the testimony of the various witnesses in a case of this nature."

36. Trial by judge alone assisted by the opinions of assessors is a variant of trial by judge sitting alone. In Fiji, trial in the Magistrates Court is by judge sitting alone. In England, trial by a stipendiary magistrate is trial by judge sitting alone. In Hong Kong with alleged serious charges the Prosecution may elect trial before a District Judge sitting alone rather than trial in the High Court with a jury. The difference is that whatever the maximum penalty for the offence the District Judge may not sentence to more than a total sentence of 7 years imprisonment. In Hong Kong, the prosecution policy is to have commercial frauds and conspiracy charges as well as misconduct in a public office offences tried before a District Judge sitting alone. This is what happened in Shum Kwok Sher which I have extensively cited above. When a judge sitting alone convicts, the usual system of appeal is the application of the regime of the 1907 Criminal Appeal Act in England. So the judge sitting alone writes his reasons in full. That and the record go before the appellate court which applies section 4(1) of the Criminal Appeal Act 1907 or its successor statutory regime. In Fiji section 23(1)(a) of the Court of Appeal Act, is still in the same words as the Criminal Appeal Act 1907. It provides the criteria on which appeals from a judge sitting alone must succeed or fail.
    
37. It should be noted that the section 246 together with section 306(2) regime has no words at all limiting when "he shall not be bound to conform to the opinions of the assessors". While this framework was in place there were a small number of cases where the trial judge convicted after "not guilty" majority assessor opinion. A standard procedure of writing and delivering the trial judge's reasons for overrule and conviction arose in these cases.
    
38. In any event the community in Fiji so accepted and had confidence in the assessor system as described that around the time of independence in 1970, the assessor system became the only system for High Court trials. In its place jury trial could have been chosen to replace it. In choosing assessors rather than a jury in Fiji, the Fiji legislature clearly intended the presiding judge's power to overrule the opinion of the assessors to continue to be an important and integral part of the system. If effect it is trial by judge alone with advisory help from assessors.
    
39. The new section enacted around or shortly after 1970 is section 299 of what is the Criminal Procedure Code Act Cap 21. Section 299 states:
    

"Delivery of opinions by assessors

299. – (1) When the case on both sides is closed, the judge shall sum up and shall then require each of the assessors to state his opinion orally, and shall record such opinion. (Amended by 35 of 1961, s.31 and 16 of 1973, s.12).

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors:

Provided that, notwithstanding the provisions of subsection (1) of section 155, where the judge's summing up of the evidence under the provisions of subsection (1) is on record, it shall not be necessary for any judgment, other than the decision of the court which shall be written down, to be given, nor for any such judgment, if given, to be written down or to follow any of the procedure laid down in section 154 or to contain or include any of the matters prescribed by section 155, except that, when the judge does not agree with the majority opinion of the assessors, he shall give his reasons, which shall be written down and be pronounced in open court, for differing with such majority opinion and in every such case the judge's summing up and the decision of the court together with, where appropriate, the judge's reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for the purposes of this subsection and of section 157. (Proviso inserted by 16 of 1973, s.12)

(3) If the accused person is convicted, the judge shall pass sentence on him according to law.

(4) Nothing in this section shall be read as prohibiting the assessors, or any of them, from retiring to consider their opinions if they so wish, or, during any such retirement or at any time during the trial, from consultation with one another."

40. Subsection (2) of section 299 is in the same words as section 309 subsection (2). The intention of the legislature is clear. The presiding judge is the tribunal of fact and it is his or her duty to record a conviction or an acquittal if he or she is sure that the opinion of the assessors is wrong. If that is the enacted system in Fiji, it must be allowed to operate on the basis that the judge has a duty to find the facts according to the weight he gives to all the evidence called. The judge has observed the demeanour of the witnesses. Assessors may for a number of reasons give wrong or uncovenanted opinions. Every such opinion is based on what the assessors have chosen to believe and accept in situations where there is a conflict on a material fact between, usually, a number of witnesses.
    
41. Where these material facts arise in the conflicting testimony of a number of witnesses, if the judge is the tribunal of fact, after seeing the witnesses, he or she will in many cases take the view that the evidence on a material point of fact of some witnesses is to be believed and given weight, while the evidence of other witnesses is to be disbelieved and given no weight.
    
42. It may be enquired as to whether the replacement of section 246 together with section 306 by section 299 makes any substantive or procedural differences.
    
43. For one thing, as discussed on a preliminary basis in paragraphs 29, 30, 31 and 32 above, the element of assessors being somehow expert in interpreting events and behaviour according to the common culture they share with the Defendant(s) is now gone. Now qualified assessors may be chosen and sit alongside assessors from another culture. Their opinions are individual opinions based on the common culture of Fiji citizens and residents. Fiji is a place of two dominant cultures and one subsidiary culture. In many cases all or the majority of the assessors may belong to one of these three cultures. If so, majority assessors from one culture still might not give opinions in accordance with the evidence if they empathise culturally with the accused or feel that a person of their culture is being to some extent a victim of those from another culture. The statutory framework provided nothing in the way of jury-like numbers. Nor does it require equal numbers from all three cultures.
    
44. For another, the procedure is now clarified. In cases where the judgment agrees with the assessors and there has been a summing up in writing a short written judgment is required. In cases where the judgment departs from the majority opinion of the assessors whether for conviction or acquittal the presiding judge must:
    

"give his reasons which shall be written down and be pronounced in open court for differing with the majority opinion of the assessors".

When this is done the position is that the judgment of the Court is deemed to be:

"The Judge's summing up and the decision of the Court together with where appropriate, the Judge's reasons for differing with the majority opinion of the assessors".

45. These procedural changes merely give statutory force to those that had arisen in practise over many years under the previous regime of section 246 together with section 306. The changes are that what has to be done where the judge and the assessors agree is set out in the first part of the proviso to section 299(2). Then in the "exception", the statute sets out what has to be done where the trial judge decides that he must differ from the opinions of the majority of assessors.
    
46. In my view all of the procedural changes are straight forward. All the presiding judge who disagrees with the assessors has to do is to follow the steps of written summing up, written decision and written reasons for differing from the opinion of the majority of the assessors. The presiding judge also has to pronounce his reasons for differing in open court. Once these steps have been completed in a procedurally correct manner there are no statutory words in Section 299 that could found a supervisory appeal or review jurisdiction in the Court of Appeal or the Supreme Court. Any attempt to find such a supervisory or review jurisdiction from these statutory words would be in breach of the clear purpose and intent of what was in place since the late 1870s in section 246 together with section 309 and then in section 299.
    
47. At the present time the usual practise of a presiding judge who is differing from the assessors is to give the decision of the Court and the reasons for differing from the assessors "where appropriate" in one written document which is read out by the presiding judge in open Court. This practise, in my view, clearly conforms with the statutory words in the proviso to section 299(2).
    
48. What is meant by "the judge's reasons for differing with such majority opinions"?
    
49. In my view this means a positive statement of the facts that the presiding judge finds proved beyond reasonable doubt. It is not for the presiding judge to seek out and list all the possible findings which the assessors may have adopted to reach and justify their opinion and then to explain why in each case his view of the appropriate findings of fact on the evidence are different. Some trials involve many elements of the offence and many decisions of fact. In such cases there may be many possible findings of fact on which there is room for disagreement applying the appropriate standard of proof between the judge and assessors. In other cases such as in Ram Bali (infra) the difference in finding may be obvious. But even in Ram Bali with its relatively simple facts, Mr Justice Hammett stated his emphatic findings in accordance with the appropriate standard of proof. He dealt with his belief in the evidence of the identifying witness and the taxi driver and his disbelief of the facts sworn to by Ram Bali's alibi witness.
    
50. As to the words "where appropriate" I find it difficult to envisage a case where it would be inappropriate to include "the judge's reasons for differing with the majority opinion of the assessors," as part of "the judgment of the Court".
    
51. After discussing statutory appeals from the trial judge as the tribunal of fact, I will discuss the common law intervention of the Privy Council in Ram Bali (infra). It will be then necessary to further consider what the trial judge, who differs from the acquittal opinion of a majority of the assessors, must do in his "reasons". But this will not derive in any way from section 299.
    

Trial by Judge and Assessors – The Statutory Framework Governing Appeals from Conviction by Trial Judge Whether He Agrees or Disagrees with Opinion of the Majority of the Assessors

52. As an institution created by statute the Fiji Court of Appeal in its criminal jurisdiction, is only able to hear and dispose of appeals in accordance with its statute. It has no jurisdiction to confer upon itself new rules giving it further or supplementary jurisdiction under which it may act.
    
53. Its jurisdiction to hear and dispose of appeals against conviction, now contained in section 23(1)(a), is in the same words as section 4 of the Criminal Appeal Act 1907 in England which statutory framework was introduced into Fiji as well as into many other United Kingdom colonies including territories which were colonies in 1907 although they became Dominions shortly thereafter. Section 23(1)(a) of Fiji Court of Appeal Act says:
    

"23.-(1) The Court of Appeal –

(a) On any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal."

54. As already foreshadowed at paragraph 34 above, these statutory criteria apply where the 1907 English regime or a later version of it, is in place, whether it is from the verdict of a jury, from a judge sitting alone with the assistance of opinions of assessors or from a judge sitting alone without jury or assessors.
    
55. There is no doubt at all that when it is an appeal from the conviction by a judge sitting alone with assessors it is an appeal upon the statutory grounds of section 23(1)(a) whether or not the conviction is in accordance with the majority opinion of the assessors or contrary to the majority opinion of the assessors. The judge decides upon conviction, the statutory words being "against conviction".
    
56. There is compelling persuasive authority from the Court of Appeal case of Ram Bali (1960) 7 Fiji Law Reports 80 at page 83 supporting the above propositions. The case was a conviction by the trial judge after a unanimous assessors opinion of "not guilty". Section 18 as it was in 1960 is now (in the same words) section 23(1)(a). The appellant's submission was that the conviction was against the weight of the evidence; it attacked the factual findings of the trial judge on which witnesses to believe and the weight that should be given to pieces of evidence. The Court of Appeal held at page 83:
    

"A considerable number of the grounds of appeal have reference to the learned Judge's acceptance or rejection of the evidence of particular witnesses. Speaking generally, the suggestion was that he ought to have rejected the evidence of one witness after another on various grounds; and it seemed almost as if it were contended that, whenever a witness's testimony is open to some serious criticism on any account at all, a trial Judge is bound to reject his evidence entirely. The learned Judge did not in fact disregard the various grounds on which the evidence of particular witnesses was open to criticism and, without going into details, this Court is satisfied, for the reasons given by the learned Judge, that he was justified in accepting the evidence of those witnesses to the extent to which he did accept and rely on their evidence. Treating the entirety of all such objections as a single ground of appeal, the Court does not find that the learned Judge's reliance on so much of the evidence as he accepted was unreasonable, or that the views he adopted were such as could not be supported having regard to the evidence, or that there was, in this respect, any wrong decision on any question of law or any miscarriage of justice (vide section 18 of the Court of Appeal Ordinance. Cap 3)."

57. These issues are all about findings of fact by trial judges. It is relevant to note how fact is to be considered within the appeal framework of the 1907 Criminal Appeal Act.
    
58. Appellant's Counsel often address the Court of Appeal on the basis that the tribunal of fact has got it wrong because they believed and/or disbelieved the testimony of one more than one, or even many witnesses; also the appellant's counsel often submits that witnesses should have been disbelieved on account of whatever had been brought out in cross-examination aimed at discrediting them. But the only criteria provided by law is section 23 and the decisions of the criminal appeal courts over the years explaining the meaning of these statutory criteria.
    
59. What the section 23 power means with regard to what is an "unreasonable verdict" was explained by the Court of Criminal Appeal in England in R v. Hancox [1913] 8 Crim. App. Report 183. The Court was presided over by Phillimore J sitting with Pickford J and Coleridge J. It concerned a police officer whose visits to a public house coincided with the landlady's change disappearing. She marked a coin which was later found in the police officer's pocket. The jury, as tribunal of fact convicted. The appeal was based on Hancox being unpopular because he enforced the law and two out of the twelve jurors were biased against the police and Mr Hancox having being charged with crime, each on one occasion. This last allegation was dismissed by the Court. Mr Justice Pickford giving the judgment of the Court said at page 197:
    

"This Court has said that it does not proceed on such lines as these – look at the evidence, see what conclusion the Court would have come to, and set aside the verdict if it does not correspond with such conclusion. There have been cases where the Court has thought fit to set aside a verdict on a question of fact alone, but only where the verdict was obviously and palpably wrong. Such cases are rare. This case turned on the manner in which the witnesses gave their evidence; there was a proper direction to the jury, and the Court does not see that it can interfere with the verdict without substituting itself for the jury, which was the proper tribunal to decide the matter."

In respect of the statutory words under consideration the Court of Criminal Appeal in England always applied this statement of principle.

60. A related point to what "unreasonable verdict" means, concerns attempts made from time to time that, as with civil appeals, a criminal appeal, being an appeal by way of re hearing allows the Court of Appeal to review the evidence and find the facts afresh. In Fiji this view of appellate powers was espoused by the Court of Appeal in Litiwai Setevano v. The State (1991) FJCA 3.
    
61. There is fundamental error in the Court of Appeal's approach in Litiwai Setevano. They reasoned that because a criminal appeal was by way of rehearing that meant that in the appellate court they were empowered to find the facts afresh and make orders in accord with their findings. In civil cases that is one of the consequences of an appeal by way of rehearing.
    
62. But when a comprehensive criminal appeal system was brought into being by the Criminal Appeal Act of 1907 in the United Kingdom the key legal policy enacted therein was that the new court's power to find and then act on facts would be on the limited basis of section 4(1) when it says:
    

"4.-(1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence."

63. As seen above that section is now section 23(1)(a) of the Court of Appeal Act. In respect of criminal appeals what appeal by way of rehearing means is that the case is not commenced de novo all over again in the Court of Appeal. The record is there to tell the Appeal Court of the evidence and the rulings of the presiding judge including his written summing up and all rulings and to record the opinions of the assessors as well as the reasoning and verdict of the trial judge as tribunal of fact.
    
64. The case of Aladaseru v. The Queen (1956) AC 49 in the Privy Council is an appeal by directors of the Standard Bank in Nigeria from a conviction for false accounting. They had appealed to the West African Court of Appeal who said referring to the difference between civil and criminal appeals:
    

"This difference has been pointed out by this court times without number and so we have no sympathy for any appellant who still puts up a wrong ground of appeal. Even if we had granted an amendment of the ground of appeal we would not have been disposed to hear arguments on facts ...

... The first ground of appeal that judgment is against the weight of evidence is no ground of appeal in criminal matters but is an appropriate ground in civil matters where verdicts are to be arrived at by preponderance of evidence. In criminal matters the proper ground of appeal is that the verdict is unreasonable or cannot be supported having regard to the evidence ... Even if we had granted an amendment of the ground of appeal, we would not have been disposed to hear arguments on facts."

65. At (1956) AC 49 at pages 54 and 55, Lord Tucker for the Privy Council explained:
    

"October 19. Their Lordships' reasons for dismissing the appeal were delivered by Lord Tucker, who stated the facts set out above and continued: It will be observed that the language of the West African Court of Appeal Ordinance follows that of the English Criminal Appeal Act, 1907, under which it has long been established that the appeal is not by way of rehearing as in civil cases on appeals from a judge sitting alone, but is a limited appeal which precludes the court from reviewing the evidence and making its own evaluation thereof. The position is correctly stated at page 346 of the 33rd edition of Archbold's Criminal Pleading, Evidence and Practice as follows:

"In order to succeed an appellant must show, in the words of the statute, that the verdict is unreasonable or cannot be supported having regard to the evidence. It is not a sufficient ground of appeal to allege that the verdict is against the weight of evidence. It is also to be observed that an appeal on this ground does not lie as of right but only by leave of the court."

This statement is one of great authority. It binds the Courts in Fiji.

Trial by Judges and Assessors – the Privy Council's Rule in Ram Bali

66. I have explained above the issue of the need for sensitivity when assessors were chosen who shared the same culture as the accused. This issue is highlighted in Ram Lal and discussed in Ram Bali. After replacing sections 264 and 309 with section 299 that issue disappears. But the need for respect to be accorded to assessors and their opinion generally remains. If trial by judge alone assisted by assessors is to be acceptable and to work in practice, there have to be checks and balances. This has been achieved in Fiji by a number of procedural practices and one common law principle. That common law principle was stated by the Privy Council in Ram Bali v. The Queen. It is the unreported judgment in Privy Council Appeal No.18 of 1961 of 6th June 1962.
    
67. A very important procedural practise bestowing respect is that assessors are treated like jurors. They swear an oath. The presiding judge explains matters to them in the course of the trial. Like jurors they are absent while matters of law or voiredires are being decided by the judge. They retire to consider their opinions.
    
68. Perhaps the most important procedure bestowing respect is the summing up. It is in the same terms as a jury in England. As in England, the judge tells the assessors of their respective roles in the process, sums up the law, and sums up the factual issues. The trial judge in this case gave full respect. The written summing up, orally delivered, was a careful and substantial document of 26 pages.
    
69. In that summing up the trial judge said:
    

"On the facts however, it is for you to decide what facts to accept and what facts to reject. In other words you are the masters of fact."

"You are the representatives of the community at this trial and you decide what really happened in this case."

"You will not be asked to give reasons for your opinions but merely your opinions themselves. Your opinions need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me but they will carry great weight with me when come to deliver my judgment."

"You have undertaken to try the case according to the evidence."

70. How effective was this culture of respect? How effective is it at the present time? The answer is that only very infrequently in a very few cases does the opinion of the majority of the assessors differ from the decision and verdict of the trial judge. This has been the position from the inception of trial by judge and assessors in Fiji.
    
71. In addition to procedures bestowing respect, there is the common law doctrine stated by the Privy Council. I will now set out this doctrine through the cases. I have no doubt that the legal policy behind this is:
    

In addition to procedural respect there has to be a check on the use by trial judge's of verdicts contrary to the majority opinion of assessors. They should only be permissible where the judge is sure beyond reasonable doubt on the facts and there is a substantial gap between the findings of the judge and the opinion on fact of the assessors. The judge should only use it when he is strongly of the view beyond any doubt that there will be a miscarriage of justice if he fails to use his statutory power to overrule the majority opinion of the assessors.

Trial by Judge and Assessors – The Privy Council and Ram Bali

72. The Privy Council is a common law superior court of record with a criminal jurisdiction that predates statutory regimes based on the 1907 Criminal Appeal Act in England. It is itself not bound by such statutory regimes. As Lord Morris for the Board said in Ram Bali at page 2:
    

"Their Lordships proceed to examine these contentions but with the reminder that the well recognised principles which guide their Lordships' Board in criminal appeals do not equate such appeals with those that are taken to Courts of Criminal Appeal."

It is this legitimate common law power to create rules that allowed the Privy Council to develop what I refer to as the Ram Bali doctrine.

73. In order to understand the vital elements, a study of the fact situations involved is, perhaps unusually, essential. Also the doctrine, although it tended to validate differing from the opinion of assessors included in it from the outset, the power of an appellate court in the right circumstances to reverse the overrule. This the Court of Appeal finally did in Apakuki Saukuru v. Reginam Criminal Appeal No. 45 of 1981 in which judgment was delivered on 27th November 1981.
    
74. Ram Bali is reported as Ram Bali v. Reginam 7 Fiji Law Reports at page 80 and in the Privy Council, under the title Ram Bali v. The Queen, it is the unreported judgment in Privy Council Appeal No. 18 of 1961, of 6th June 1962.
    

The following facts are taken from the opinion of Lord Morris of Borth-y-Gest for the Privy Council.

"On the 28th December, 1959, at about 9.00pm, a number of men went to the compound at Vitogo in which, in various houses (four in number), Subramani Pillay, his four sons and their families resided. Some shots were fired. Subramani Pillay and Muthu Sami Pillay opened the doors of their houses and they were hit by shot-gun pellets. Dharma Reddy was at the house of Muthu Sami Pillay and was wounded, though not seriously, at the same time as the latter was hit. The case for the prosecution was that the appellant and also Ishaq Ali were amongst those who had gone to the compound.

The appellant denied that he was amongst those who had gone to the compound. So did Ishaq Ali. The appellant gave evidence that he had spent the entire evening at the house of one Bechu. Ishaq Ali gave evidence that he was elsewhere.

The effective issue at the trial was whether it was established that the accused were included in the party of assailants who had gone to the compound. In the hearing before their Lordships it was not in contest that if it could properly have been held that the appellant had gone to the compound no doubt could be entertained as to the validity of the conclusion that he was a participant in the shooting and that he had the intent necessary to sustain the first two counts. The learned Judge was satisfied that there had been an intention to kill Subramani Pillay and Muthu Sami Pillay but had found no evidence of an intention to kill Dharma Reddy. For that reason the conviction on the third count was of the crime of wounding contrary to section 256 of the Penal Code.

It is unnecessary for present purposes to recite in detail the evidence relating to the identification of the appellant as being one of those present when the shooting took place. Suffice it to say that if accepted there was definite evidence which identified the appellant. The vital issue as to whether the appellant was present depended for its determination upon decision as to which witnesses were to be believed. Subramani Pillay testified that he flashed his torch and saw the appellant (whom he knew) with a gun in his hand ready to fire and that the appellant then fired at him. Two witnesses (Atmaram and Lalla) gave evidence of the circumstances under which, having gone out after having heard shooting, they saw four men, one of whom was the appellant who had a gun. They gave fear of the appellant as their reason for their delay (until the 7th January) in reporting to the police. There was other evidence the value of which could best be determined by those who heard it.

The evidence of the appellant was that throughout the evening of the 28th December he had been, with others, at Bechu's house at Tuvu. A journey between Tuvu and Vitogo (partly by car and partly by foot) would take about half an hour. That appellant was present at Bechu's house throughout the evening of the 28th December was testified by various witnesses who said that they had also been at the house. They included Bechu himself and his son Hari Krishna. Bechu owned a car which Hari Krishna drove. They said that the car had not been out that evening. If however the testimony of a witness who had been called for the prosecution was accepted then the evidence supporting the appellant's alibi was considerably discredited. That witness was a taxi driver (by name Subramani). He said that at about 9.20 p.m. on 28th December, which was at a time shortly after the shooting, while driving his taxi on the King's Road when he was returning to Lautoka, he was nearly involved in a collision with another car which suddenly swung out in front of him from the Drasa Farm Road near Vitogo and which crossed the main road in front of him. He said that that car was driven by Bechu's son, Hari Krishna, and that in it were two or three passengers whom he did not recognise. The car was being driven away from the area in which the compound was situated and towards the direction in which Bechu's house lay.

When the learned Judge summed up the case to the assessors he asked for their opinions in regard to the alibis respectively and separately advanced by each accused. He asked whether they believed and accepted the alibis: he further asked for their opinions in regard to the guilt of each accused. In regard to Ishaq Ali all the assessors accepted his alibi and they were all of opinion that he was not guilty. The learned Judge found him not guilty and he was acquitted. In regard to the appellant, two of the assessors accepted his alibi: one did not. They were all of opinion that he was not guilty. The learned Judge found that he was guilty on the first two counts and, as stated above, that on the third count he was guilty of wounding."

75. The judgment of the Court in the Court of Appeal was the judgment of Sir Francis Adams, Acting President, Trainor JA and Knox-Mawer JA. I have cited this judgment above in paragraph 34 concerning the old law of cultural sensitivity where the assessors had to share the culture of the accused. I have also, in paragraph 56, cited the response of the Court of Appeal to submissions on the basis that the conviction was against the weight of the evidence and the Court referred to what is now the section 23(1)(a) criteria.
    
76. The Court of Appeal at page 88 found it dispositive against Ram Bali that the trial judge Mr Justice Hammett had properly exercised the statutory power to convict contrary to the majority opinion of the assessors.
    

"He held that the appellant and his witnesses had all given what he was quite satisfied was false evidence in support of the alibi, and added, 'I do not accept their evidence concerning the first accused's alibi at all.' He went on to accept the evidence of certain prosecution witnesses, and to reject that of the appellant and his witnesses, and ended his discussion of the facts by saying, 'I do not feel the slightest shadow of doubt in my mind about the guilt of the first accused.' It is clear that, as the learned Attorney-General submitted, the Judge did not in fact fall into any error arising from any misconception as to the onus of proof."

77. In the Privy Council, the Board hearing the case, consisted of Lord Evershed, Lord Morris and Lord Devlin. Lord Morris of Borth-y-Gest set out the findings and judgment of Hammett J at first instance as follows:
    

"The decision of the learned Judge was based upon his own emphatic conclusions in regard to the evidence. He was "not at all favourably impressed" by the demeanor of the witnesses who were called in support of the appellant's alibi. He was impressed by the evidence of Subramani the taxi-driver and he had no hesitation in accepting it. He was satisfied that the appellant and his witnesses had given "false evidence" concerning the movements of Hari Krishna and of Bechu's car. He considered on the other hand that Subramani Pillay had told the truth in regard to the identification of the appellant. He accepted the evidence of Subramani Pillay and also the evidence of Atmaram and Lalla. Accordingly the learned Judge expressed himself as follows:-

"In view of the opinion of the three Assessors that the first accused is not guilty on any of these three counts, I have reconsidered the evidence in this case. Since I do not accept the first accused's alibi and I do believe the evidence of Subramaniam Pillay when he said he saw and identified the first accused when the gun was fired at him and I believe the evidence of Atmaram and Lalla that after the shots were fired they saw the first accused and others coming away from the direction of Subramaniam Pillay's compound, I do not feel able to accept the opinion of the Assessors on this matter. I do not feel the slightest shadow of doubt in my mind about the guilt of the first accused."

78. Lord Morris for the Board having set out section 246 and section 309 of the Criminal Procedure Code assessed, at pages 4 and 5 of the Privy Council judgment, whether it had been complied with:
    

"Though two of the three assessors positively accepted the alibi of the appellant and though all three considered that the appellant was not guilty the learned Judge found him guilty. This was a strong course to take but there is no reason to think that the learned Judge did not pay full heed to the views of the assessors or to the striking circumstance that they were unanimous in favour of acquittal. Nor is there reason to think that he was unmindful of the value of their opinions or of their qualifications to assess the testimony of the various witnesses in a case of this nature. In his summing up he had said that their opinions would carry great weight with him. The decision of the learned judge was based on his own emphatic conclusions in regard to the evidence. ...

... Their Lordships can discern no error in the approach of the learned Judge in arriving at his positive and affirmative conclusion ...

... it is manifest that his acceptance of certain witnesses and his rejection of others made him satisfied beyond even "the slightest shadow of doubt" of the guilt of the appellant. Their Lordships agree with the High Court of Appeal that the judgment of the learned Judge in so far as it related to the alibi did not depend in any degree whatsoever upon any question as to the burden of proof but was governed by his unhesitating acceptance of the evidence for the prosecution in regard to the relevant facts and by his equally unhesitating rejection of the evidence tendered in support of the alibi".

79. The principles laid down in Ram Bali by the Privy Council were followed by the Court of Appeal in Narend Prasad v. Reginam (1971) 17 FLR 200.
    
80. In Narend Prasad the opinion of five assessors acquitted Narend Prasad of the murder of Lum Chee Ming at his room in Ba. As to the co-accused the opinion was one of "guilty". The presiding judge convicted both and in his judgment explained his reasons for convicting Narend Prasad. The presiding judge said that:
    

"The evidence is, as he saw it, was so cogent that the assessors must have misdirected themselves in some manner upon it and that to accept their opinions would result in a miscarriage of justice."

The Court of Appeal were Gould V.P., Marsack JA and Spring JA. In a judgment of the Court they cited the Privy Council in Ram Bali and said at 17 FLR 208 at 220:

"The judgment of the Privy Council upheld the action of the trial Judge and sustained the conviction. We are of the opinion that the passages quoted from their judgment would apply with equal force to the case before the Court. We are satisfied that ample reasons did exist for the action of the learned trial Judge in differing from the opinion of the assessors, and that proper consideration had been given by him to all the factors involved."

81. In Shiu Prasad (1972) 18 FLR 68 the pregnant deceased was living with Shiu Prasad at Labasa. They quarrelled so loudly on the night of the event that the police were called. They came the next morning and found Ms Nirmala Wati suspended from a beam and dead by reason of asphyxia by means of strangulation. There were five assessors and two gave an opinion of guilty of murder and three were for not guilty on the basis of reasonable doubt. There had been a second charge of Shiu Prasad assisting suicide. The Court of Appeal consisting of Sir Trevor Gould VP, Marsack JA and Bodilly JA said about this at page 71:
    

"... the overwhelming evidence, accepted by the trial judge, was that the deceased had not killed herself, but had been murdered."

The Court of Appeal in relation to the presiding judge convicting of murder contrary to the majority opinion of the assessors said, also at page 71:

"As regards the second ground of appeal, it is true that if a Judge is to differ from the opinions of the assessors he must have cogent reasons for doing so and those reasons must be founded upon the weight of the evidence in the case and must of course also be reflected in his judgment."

82. The Court of Appeal then cited the usual passage from Ram Bali on the Privy Council and concluded: (at pages 71 and 72)
    

"That is the case here. Those "emphatic conclusions" expressed in his judgment are all the reasons which a trial Judge requires for differing from the opinions of assessors. The learned Judge, in his lengthy summing up to the assessors, stressed that he would give weight to their opinions, and we have no doubt that he considered them carefully. It is true that in this case in giving the judgment of the court the learned Judge expressed a reason why he thought that the assessors might have fallen into error and gave that as a reason why he did not accept the majority opinion. He said –

"After a very searching enquiry into the whole of the evidence in this case, I find that I have absolutely no doubt at all."

That is his 'emphatic conclusion' on the evidence."

83. The Court of Appeal explained what the presiding judge had thought might have mislead the assessors and then said, also at page 72:
    

"That is of course a mere speculation because the assessors gave no reasons as to why they came to their opinions and it is quite beside the point what the Judge may have thought had swayed them one way or another. It is sufficient that the learned Judge was himself, for good reason given, convinced to the contrary. This ground of appeal fails."

84. The next case that followed Ram Bali was in 1981 and is Apakuki Saukuru v. Reginam Criminal Appeal No.45 of 1981. The Ram Bali doctrine always predicated that a trial judge's differing from the opinion of the assessors would in appropriate circumstances be set aside. Saukuru is the case where setting aside the opinion of the assessors was found to be appropriate. By this time section 299 had replaced section 246 together with section 309.
    
85. In Saukuru a decision of the Court of Appeal of 27th November 1981, the Court consisted of Sir Trevor Gould VP, Marsack JA and Henry JA. Apakuki Saukuru of Lautoka was a boxer and casual dock worker who set up Sarju Prasad for a robbery. Saukuru got annoyed and punched him until he was knocked out. The next morning Sanja Prasad was found dead. A majority of the assessors gave as their opinion that Saukuru was not guilty of murder but guilty of manslaughter. The presiding judge in a written judgment convicted Saukuru of murder.
    
86. In the appeal judgment their Lordships discussed Ram Bali in the Court of Appeal and went on to cite Ram Bali in the Privy Council, Narend Prasad in the Court of Appeal and Shiu Prasad in the Court of Appeal. Their Lordships stressed that these cases were all rightly decided and laid down the legal framework under which Saukuru's case would be decided.
    
87. In the result they applied the Ram Bali doctrine but decided to restore the assessors opinion of guilty of manslaughter. One reason why they disallowed the trial judge's differing from the opinion of the assessors turned on the fact that assessors and trial judge had not differed in which witnesses they believed and what the primary facts of the case were. The Court of Appeal stressed that in this case the assessors and the judge were accepting exactly the same evidence as to what had happened and that Saukuru had punched Sanja Prasad until he was knocked out. Their Lordships continued concerning the assessors:
    

"... there is no apparent reason for anyone to say that they failed to appreciate the evidence. The line of division between their view and that of the learned judge must have been fine indeed. As it appears to us, it was not a case where there was evidence of differing categories and cogency in which the learned judge's long experience of such matters gave him an advantage."

88. Their Lordships then explained and set out their reasons and conclusions.
    

"But on the decided cases the learned judge was required to give cogent reasons for differing from the assessors. ...

... What we are leading up to is the question – if the majority of the assessors thought there was a doubt, has the learned judge given emphatic conclusions, reflected in the evidence, for excluding that doubt. He has not purported to say why he differed – merely that he disagreed. He has summarised the evidence. In many, probably most, cases, that could be sufficient, particularly if there could be seen aspects of the evidence which the assessors have clearly failed to appreciate. That is not the case here – all of the evidence was summed up to the assessors and the divergence is hardly more than one of personal opinion as to the inferences which ought to be drawn. The learned judge and the majority of the assessors must have had similar views of the appellant's credibility.

We are most reluctant to apply the principle we have been discussing and certainly do not wish to extend it in any way, but when a judge adopts what the Privy Council called a strong line and overrules unanimous assessors, we agree with the decided cases that his reasons must be cogent, and his own approach to the relevant law should be impeccable. As to the first we consider this a case in which we consider that a mere summation of the evidence was insufficient, and as to the second, we have already suggested that the emphasis placed throughout the case on the appellant's ability to remember events was such as to make that factor alone decisive of the question of intent; in our opinion that was not correct.

We therefore conclude that the learned judge was not justified in overruling the assessors in the case and it follows that we allow the appeal, set aside the conviction of murder, and substitute a conviction of manslaughter contrary to section 198 of the Penal Code (Cap 17). There is no need for us to make any reference to Ground 4 of the Notice of Appeal.

The sentence of life imprisonment is set aside, but the offence remains a grave one and we impose a sentence of ten years' imprisonment to run from the same date as that of the original sentence."

89. I have now reviewed all the cases and statutes relevant
    
    1. to the statutory framework in respect of trial by judge assisted by the opinion of the assessors.
       
    2. to the statutory framework going to the limited criteria setting out when appellate courts may allow or dismiss appeals in criminal cases.
       
    3. to the common law doctrine in Ram Bali, which in limited circumstances provides an appellate court power to set aside the trial judges verdict where the trial judge has convicted contrary to the majority opinion of the assessors.
       
90. I summarise the law as follows. I again elect not to comment on the trial judge's possible decision to acquit after a majority of assessors have tendered an opinion of guilty.
    
    • (1) After the opinions of "not guilty" are stated the trial judge has to decide whether to convict or acquit. He will review the evidence. He will be aided by his summing up which will have set out evidence tending towards acquittal and tending towards conviction.
      
    • (2) The situation may be that after evaluation, the trial judge is emphatically of the opinion, based on the witnesses that he believes and the witnesses that he disbelieves and the primary facts that he finds proved beyond reasonable doubt, that he should convict. If so he would fail in his statutory duty if he did not convict. The judge if he did not convict in these circumstance would not be applying the law which his judicial oath requires him to do.
      
    • (3) The test of "emphatic" conclusion of guilt is also explained by the concept the trial judge being of the view "that to accept their opinions would result in a miscarriage of justice". See Narend Prasad (supra) quoted at paragraph 80 above. If the trial judge holds that view he is obliged by the statutory framework and his oath to convict.
      
    • (4) Where it is a matter of which evidence and which witnesses to believe all that is required is the trial judge's subjective opinion that the matters he acts upon and his reasons are "cogent". The trial judge sees the witnesses, the appeal court does not. See again Narend Prasad (supra) quoted at paragraph 80 above "The evidence is, as he saw it, was so cogent".
      
    • (5) In respect of witnesses and fact the trial judge's "cogent" belief in his findings, is not challengeable on appeal under the Ram Bali doctrine; it is however challengeable under section 23(1)(a) of the Court of Appeal Act being the general appeal criteria.
      
    • (6) Where the trial judge is sure beyond reasonable doubt, he will be of the view that the assessors have delivered an uncovenanted verdict. The trial judge is not required to speculate where the assessors have gone wrong. He has to instead formulate and act upon his own very positive opinions. See Shiu Prasad (supra) cited at paragraph 83:
      

"the assessors gave no reasons as to why they came to their opinions and it is quite beside the point what the Judge may have thought had swayed them one way or another."

(7) Where the assessors and the trial judge are ad idem on the primary facts and the trial judge has left alternative charges to the assessors leaving them to give their opinion on which mens rea in the accused is applicable, he must defer to their opinion. In this situation if the judge convicts he may not describe his reason(s) as "cogent". But if he does an appeal court, in applying the Ram Bali doctrine, in restoring and effecting the assessors opinion, may objectively decide whether the trial judge's reason is or is not "cogent".

(8) If during the trial and summing up, the trial judge, as is usual, assists and encourages the assessors, that is showing respect to them. He does not have to show respect to opinions which in his view if acted upon would create a miscarriage of justice.

(9) On appeal to an appellate court the only legality for allowing or dismissing an appeal is section 23(1)(a) and the common law Ram Bali doctrine. But if the trial judge has acted in accordance with this summary, the scope for appellate interference under Ram Bali is very limited. It must be a case where the judge and assessors are ad idem on the primary facts and the difference lies in respect of the appropriate inference to draw in respect of mens rea.

Trial by Judge and Assessors
Mataiasi Raduva and John Heatley v. Reginam

91. On the face of it the case of Mataiasi Raduva and John Heatley v. Reginam, Criminal Appeal No. 109 of 1985 with judgment on 4th July 1986 provides principles of law quite different from those considered above. It has been followed in two later cases. So I defer application of the above principles culled from section 23(1)(a) and the common law doctrine in Ram Bali in the present facts until I consider Raduva and derivative cases.
    
92. The alleged facts were that Venkataiya Ali was being served in a Suva restaurant at the counter when John Heatley held him against the counter while Raduva stole his wallet and ran off. A restaurant employee, one Munam Ratnam who knew Raduva well, witnessed the offence, went around the neighbourhood with police and pointed out Raduva. Later at an identification parade both Venkataiya Ali and Munam Ratnam identified Raduva. Because he was leaving Fiji, Venkataiya Ali gave a deposition at the preliminary hearing and was cross-examined "at length" by counsel then appearing for the accused. His deposition was admitted at trial. The three assessors unanimously acquitted Raduva; in the case of Heatley who admitted being present, two assessors were for a conviction and one for an acquittal. It seems that in respect of Heatley, Ratnam and Ali's evidence was accepted by a majority of the assessors beyond reasonable doubt. Somewhat inconsistently in the case of Raduva the same two witnesses were not accepted by at least two of the assessors beyond reasonable doubt. The Judge in the Supreme Court, (now the High Court), used his power under section 299(2) to convict Mataiasi Raduva. He was convinced of Raduva's guilt because he so believed the witnesses Ali and Ratnam that he had no doubts of Raduva's guilt. The Court of Appeal quashed Mataiasi Raduva's conviction, but dismissed the appeal of John Heatley.
    
93. The Court of Appeal did not refer to any cases or statutes. The following is the whole of their reasons:
    

"Now there are cases from time to time in Fiji where a Judge does so convict in the fact of contrary assessor opinion. These cases are rare and in our experience are one's where the evidence against an accused is so overwhelming and so affirmatively established that one can say that the assessors' conduct was perverse. With great respect to the learned trial Judge we do not think that was the situation here. This was a straight out question of seeing and hearing a witness and deciding whether he could be accepted, beyond reasonable doubt, as truthful. Three citizens – a life insurance representative, a villager and a civil servant decided that they could not be so sure. In matters of this sort, where credibility is in issue, we would like to say, from not inconsiderable experience on the bench in criminal proceedings, that the status of being a Judge does not confer any advantage, in the field of assessing truthfulness, over any other man of the world. Indeed the contrary is sometimes suggested. That is why we have assessors or juries. It is true that there was the supporting deposition of the complainant, but the assessors heard that too, and for reasons already discussed there were limitations on its usefulness. In our view this was not an appropriate case for the opinions of the assessors to be disregarded and we think the conviction of appellant is unreasonable and should be quashed."

94. The presiding Judge in the Court of Appeal was Sir Graham Speight VP who sat with Mishra JA and Sir Barry O'Regan JA. These judges did not try to pretend that the rules they enunciated were based on statute or the common law in Ram Bali. There is no doubt on the facts that if the Ram Bali doctrine had been considered the only conclusion must be that the trial judge had concluded beyond any doubt that the evidence of Muni Ratnam, who prior to the larceny had "known well" Mataisi Raduva, was to be believed. The same in the judge's view would apply to the evidence of Venkataiya Ali who had picked out Mataiasi Raduva at an identification parade. The two accused did not give evidence. There could not be a clearer case of the trial judge holding an emphatic and, in his view compelling opinion of guilt in respect Mataiasi Raduva. It was a clear case where applying the statute, the trial judge had to convict Mataiasi Raduva in order to avoid a miscarriage of justice. On authority the trial judge had in such circumstances no duty to speculate on where the assessors had fallen into error.
    
95. It can be seen that in Mataisi Raduva the Court of Appeal acted on a number of matters which they implicitly declared to be the common law.
    
    • (1) They said that the test of presiding judge's overrule is that he has to assess the opinion of assessors as perverse.
      
    • (2) They equate the opinion of assessors as equal to the verdict of a jury and, in effect, state it should not be interfered with.
      
    • (3) They say that the Court of Appeal decides if the judges differing from the opinion of the assessors is "appropriate" and if not then can regard it as "unreasonable".
      
    • (4) They assert a new power in the Court of Appeal to set aside conviction if they deem the judge's overrule is "unreasonable".
      
96. All of this implicitly declared new law is in the direct contradiction to the statute and the Ram Bali doctrine and the principles developed by the cases discussed above. While courts may extend the common law by declaring how it applies in new social conditions there was no basis at all for exclusion of the Ram Bali doctrine, explained by the Privy Council and developed in subsequent Court of Appeal decision. The Vice President had been a party to the Saukuru decision. It is telling that the Court of Appeal in Mataiasi Raduva did not try to justify their decision on the basis of the Ram Bali doctrine. They did not pretend to be extending the common law.
    
97. From the above analysis of section 246 together with section 399 which were later replaced by section 299 this Court of Appeal had no statutory authority to declare new rules of law. In particular the Court of Appeal had no statutory authority to declare the particular new rules that it did. Their new rules interfered with the trial Judge's duty to convict in accordance with the statute and the Ram Bali doctrine. These new rules also would tend to dissuade trial judges from doing their duty in accordance with their judicial oath and their statutory obligation.
    
98. In addition the Court of Appeal were bound by Ram Bali in the Privy Council. Further, the Court of Appeal decision was per incuriam of:
    
    • (i) a consideration of the statutory framework.
      
    • (ii) a consideration of their limited powers to intervene conferred only by section 23(1)(a) of the Court of Appeal Act.
      

and (iii) of the decision in Ram Bali in the Privy Council as well as the Court of Appeal decisions in Narend Prasad, Shiu Prasad and Saukuru. In ordering an acquittal on its finding of fact it had no power to do so.

99. A Court of Appeal is not a legislature and if it pronounces new law by way of judicial legislation this law has no legitimacy. The rule of law does not empower judges to create new rules of law. To do so is to usurp the power of the legislature and to undermine the rule of law. In reality what the Court of Appeal did was to create a miscarriage of justice in the case of Mataiasi Raduva.
    
100. It follows that this Court is not bound in any way by the case of Mataiasi Raduva. In respect of developing the law it is a nullity which must be ignored.
     
101. Unfortunately Mataiasi Raduva and its new law were treated as legitimate in Litiwai Setevano v. The State (1991) FJCA 3 where the Court of Appeal presided over by Sir Moti Tikaram, was sitting with Sir Ronald Kermode JA and D V Fatiaki JA. Judgment was delivered on 27th May 1991 and it was a judgment of the Court.
     
102. The facts before Mr Justice Jesuratnam were that Ms Jeet Kuar died on 12th February 1988 after being assaulted and then dropped from a height onto an area of rocks and stones. The cause of death was brain injury. There was a confession which included that the accused had raped the victim. There were also a number of strands of identification evidence. The three assessors returned a unanimous opinion of not guilty. Jesuratnam J adjourned the case until the next day and then pronounced a written judgment acquitting Litivai Setevano of murder but convicting him of manslaughter. He was sentenced to five years imprisonment.
     
103. In Setevano the Court of Appeal did not act in accord with its powers.
     
104. For one thing they were blatantly adopting and following the new law of Mataiasi Raduva. But unlike the Court in that case, they tried to rationalise it as being all a legitimate development of Ram Bali in the Privy Council and following cases. Then inconsistently they asserted a non existent supervisory power in the hands of appellate courts based on section 299. Finally they created a doctrine that appellate courts had power to redecide the facts and make orders on their findings contrary to the Privy Council in Aladaseru v. The Queen [1956] AC 49 (see paragraph 64 above).
     
105. There is no doubt that Justice Jesuratnam acted in accordance with the principles set out in the summary set out at paragraph 90 above. His opinion on witnesses and facts was emphatic and beyond doubt that Litivai had unlawfully caused the death of Ms Jeet Kaur.
     
106. All of the matters discussed above in respect of the decision in Mataiasi Raduva apply also in Litivai Setevano. From refusal to recognise and follow binding precedent through making a decision that was per incuriam in many ways to usurpation of the power of the legislature, this Court of Appeal made errors in the judgment and effected a miscarriage of justice in the case before them.
     
107. It must be recognised that following principles which have no legitimacy at all from an earlier decision does not confer any legitimacy when these principles are recycled in a later case.
     
108. Unfortunately the Mataiasi Raduva principles reappeared in 2009, this time in the Supreme Court. The decision is Leone Lautabui and Two Others v. The State Criminal Appeal CAV0024, CAV0011 and CAV0011 and CAV0025 of 2008 with judgment on 6th February 2009. The Supreme Court panel was presided over by the Hon. Justice Kenneth Handley and the other two members were the Hon. Justice David Ipp and the Hon. Justice Ronald Sackville. The judgment is a judgment of the Court.
     
109. The three accused were jointly charged with murdering a police corporal and an army private and, in the same incident wounding two army officers. This took place on the night of 7th–8th August 2000 shortly after the well-known events when a number of persons held the elected members of Parliament hostage in Suva. The three accused and one Taito Navualaba were said to be in a party headed by one Nimacere. Nimacere had died before the trial. The five were armed and were asking where soldiers were in Qiolevu Road near Navuso when an army vehicle and a two tonne carrier vehicle arrived from the direction of Navuso. Nimacere ordered a shooting ambush. This resulted in two deaths and two woundings as stated above. When the assessors were asked their opinion, two were for "not guilty" on all four charges. The third assessor was for "not guilty" on the wounding charges in respect of two of the accused. The learned judge Madam Justice Shameem adjourned the case and wrote a judgment based upon her findings in respect of the evidence in which she explained why she disagreed with the not guilty opinions. It was, no doubt read out in open court as is required by Section 299(2). While the Supreme Court judgment was delivered in February 2009 the trial before Madam Justice Shameem took place in or about 2003.
     
110. Madam Justice Shameem in convicting was doing her duty in accordance with the statutory framework and the Ram Bali doctrine. She, on the basis of evidence believed and disbelieved and facts found by her beyond reasonable doubt was emphatically of the opinion that Lautabui, Tonawai and Roko were "guilty" as charged. If the assessors opinion was allowed to stand it would be a miscarriage of justice.
     
111. The Supreme Court purported to follow Mataiasi Raduva and Litivai Setevano. For the same reasons as set above in respect of these decisions the principles on which the Supreme Court acted have no legitimacy. Although Leone Lautabui is a Supreme Court decision it is not binding on the Court of Appeal and I propose not to follow it in deciding the present appeal. If it had any precedent value at all, I am of the opinion that this Court of Appeal should choose to follow Ram Bali in the Privy Council and its development by the Court of Appeal in successive cases. The law is as is set out in my summary at paragraph 91 above.
     

Trial by Judge and Assessors
How the law found should be applied to this Appeal

112. Mr Sharma's submission is that the same principles should be applied by the appellate court to the case of Mr Peni Mau as would apply where the trial judge had convicted in the face of a "not guilty" opinion on the part of the assessors.

But in Mr Peni Mau's case a majority of the assessors were for conviction. It follows that his case must be decided on an application of section 23(1)(a) of the Court of Appeal Act to the case. That is only power available to the Court of Appeal in this case.

113. In the case of Mr Patel I start by considering Justice Daniel Goundar's "Summing up to the Assessors" together with his "Reasons for Decision".
     
114. The summing up leaves open to the assessors all the options as to findings of fact that were later used by Justice Daniel Goundar in his reasons for decision.
     
115. The "Reasons for Decision" is a comprehensive document containing 35 paragraphs. The first 21 paragraphs relate to findings re Mr Peni Mau and thereafter from paragraph 22 through paragraph 35 concerning the case against Mr Patel. The whole document read together with the "Summing Up" provide a clear statement by Mr Justice Goundar of the evidence and the facts on which his opinion beyond any reasonable doubt was that Mr Patel was "guilty" on the second count. I have no doubt that it is an emphatic opinion based on the witnesses and the parts of their evidence that he believed and disbelieved and the totality of the facts founds. In this case much of the evidence including the documents were not challenged. There are a number of facts that Mr Justice Goundar found as compelling inferences from the mass of general facts found. It was not for Mr Justice Goundar or this Court of Appeal to speculate why the assessors returned an uncovenanted opinion in the case of Mr Patel. If they accepted the evidence and convicted by a majority Mr Peni Mau, it is, in my opinion, strange and somewhat inconsistent not to also convict Mr Patel. I have no doubt that this is not a case where the primary facts found by the assessors who gave an opinion of "not guilty" were the same as those found by Mr Justice Daniel Goundar. He convicted Mr Patel because in his view it was his duty to do so, and because, to fail to convict would have resulted in a miscarriage of justice. I am sure that this is not a case where Apakuki Saukuru and the strand of the Ram Bali doctrine that in a limited number of situations requires appellate intervention in restoring and giving effect to the assessors opinions applies. Rather the facts in this case are within the broad strand of the doctrine exemplified by Ram Bali itself, Narend Prasad and Shiu Prasad.
     
116. It follows that this Court of Appeal must decide Mr Patel's appeal by applying the criteria of section 23(1)(a) of the Court of Appeal Act. After discussing the applicability of the rule in Browne v. Dunn, I will consider the issues that arise on the application of the appeal criteria.
     

Alleged failure on the part of the prosecutor to cross-examine
the accused fully or properly – the rule in Browne v. Dunn

117. Mr Reynolds QC on behalf of Mr Patel seeks to invoke an obscure rule relating to the conduct of civil and criminal jury trials. It is called the rule in Browne v. Dunn [1893] 6R 67. It concerns a failure by counsel on behalf of a party to cross-examine an opposing party and his witnesses when they give their evidence. If counsel fails to put to the opposing party or his witnesses that the evidence is untrue or unbelievable, he must not address the jury that the uncross-examined evidence is not to be accepted as true.
     
118. The case of Browne v. Dunn involved rich householders in the Vale of Health near Hampstead Heath in North London in the 1890s. Mr Browne seemed to have arguments against many of his neighbours. These neighbours asked a local solicitor Mr Dunn to prepare a summons alleging that Mr Browne argued and disputed with them individually and had conducted himself in such a way that a breach of the peace was likely to be occasioned. When the summons became known to Mr Browne he took libel proceedings in the High Court before judge and jury against the solicitor Mr Dunn. What is surprising is that at first instance Mr Browne obtained a verdict in his favour.
     
119. In the view of the House of Lords this verdict was obtained by counsel for Mr Browne acting unfairly. Lord Herschell LC, at page 70, described what had happened in this way:
     

"These witnesses all of them depose to having suffered from such annoyances; they further depose to having consulted the defendant on the subject, and to having given him instructions which resulted in their signing this document; and when they were called there was no suggestion made to them in cross-examination that that was not the case. Their evidence was taken; to some of them it was said, 'I have no questions to ask': in the case of others their cross-examination was on a point quite beside the evidence to which I have just called attention."

120. At pages 70 – 71 Lord Herschell LC then stated:
     

"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."

121. At the trial there was no complaint after Mr Marasinghe's cross-examination of Mr Patel.
     
122. I have read the cross-examination in question. In the record the learned judge has recorded more than sixty questions put by the prosecutor to Mr Patel. These are summaries and not the actual words of the exchanges. Exchanges often include clarification.
     
123. The information had fully set out the issues between the State and Mr Patel. Mr Patel gave evidence on oath and explained the facts which he said were consistent with innocence.
     
124. In abuse of office cases involving partiality in common with commercial fraud cases the factual issues are many and varied. Compared with theft or murder the facts and the law are relatively complex. What Mr Marasinghe did in his cross-examination was to cover and highlight the factual issues that were the important factual issues in respect of Mr Patel's guilt or innocence.
     
125. Since the assessors and the judge had become aware of the important factual issues from day one of the trial during the prosecution opening, this was a fair cross-examination. Mr Patel was not a witness whose evidence was given and not disputed only for opposing Counsel in his closing address to argue that it should be disbelieved. As a Defendant Mr Patel knew the elements of the offence of "abuse of office" alleged against him and the facts by which it was sought to prove it against him beyond reasonable doubt. He had the opportunity to fully explain his actions and his sworn evidence in chief was a full explanation. His counsel would in his final address to the assessors make sure that Mr Patel's version on the important factual issues were fully canvassed.
     
126. In my view the matters between the State and Mr Patel in relation to the important factual issues were fully and fairly put by Mr Marasinghe in cross-examination. There was no miscarriage of justice in this trial arising out of Mr Marasinghe's cross-examination of Mr Patel. Mr Reynolds QC's point on this aspect fails.

The Basic Facts of the Case

127. Before proceeding to assess the appeals of Mr Peni Mau and Mr Patel by applying the criteria of section 23(1)(a) of the Court of Appeal Act I summarise in broad outline the basic facts of the case.
     
128. In 2002 to 2004 the Board of Post Fiji decided to commission building works in order to renovate the ground floor of the General Post Office in Suva and create retail outlets. In addition the facade would be redesigned with a public clock as its centrepiece.
     
129. A clock of this kind is a manufactured chattel of high value. It may be attached to a building just as a large and sophisticated safe may be installed in a basement. Neither are bricks or mortar.
     
130. Post Fiji is a corporation wholly owned by the State. While it is so owned by the State it is run by executives in the public service who are public officers in the same way as senior civil servants are public officers. In order to avoid misconduct in public office by way of partiality, contracts for chattels to be acquired by Post Fiji above certain values must be put out to tender.
     
131. Mr Peni Mau was appointed Chief Operating Officer Post Fiji after corporatisation on 1st July 1996. He remained in place until March 2007. Mr Patel as a very successful Fiji businessman was invited to be Chairman of Post Fiji and served as Chairman from 1999 until after all matters relating to renovation of the Suva General Post Office had been completed including the clock.
     
132. After a Seiko clock had been installed it was discovered that it had never been put out to tender as it should have been in accordance with Post Fiji protocols. It was also discovered that the Seiko clock installed had been supplied by Prouds which is a company wholly owned by Motibhai Limited of which Mr Patel was Chairman at all relevant times. Mr Peni Mau authorised the payment for the clock in the sum of $75,000. It was also discovered that Mr Patel had never disclosed to Post Fiji before or at the time the clock was purchased that there was a conflict of interest between his duty as Chairman of Post Fiji and his financial interests as the Chairman of Motibhai Limited of which he owned a little over 12%. It has never been stated what share of Motibhai Limited his immediate family or his extended family hold.
     
133. The architect for the Post Office renovation was ASA Naidu (Mr Adish Naidu). On 30th April 2003 Adish Naidu wrote to Mr Peni Mau as Chief Executive Officer of Post Fiji. It was received by FAX at Post Fiji at 12.47 p.m. The letter states:
     

"30th April 2003

The Managing Director and Chief Executive

Post Fiji Ltd

G P O Building

Suva

ATTENTION: MR PENI MAU

Dear Sir,

POST FIJI GPO BUILDING RENOVATIONS

EXTERNAL CLOCK

Further to our meeting this morning with you we discussed with Mr Mahen Patel about the reduced size of Clock.

We feel that a 1200mm diameter clock is sufficient taking into account the proportions of the facade.

We would appreciate if Post Fiji can issue an order for supply and installation of the Seiko clock directly to Motibhai and Co Ltd. The original price of $75,000 was quoted by Motibhai and Co. We have today asked Bhupen Patel to resubmit the price to take into account the new size of clock.

If an order is given today then they will be in a position to install before the SPG Games.

Please call me if you require any clarifications.

Yours faithfully,

ASA NAIDU ARCHITECTS

Adish Naidu

Project Architect."

134. On the received letter Mr Peni Mau instructed the giving of the order for the clock on the basis of the terms set out in the letter. Internally this authorised the payment of $75,000 by Post Fiji to Prouds and/or Motibhai Limited. The endorsed minute reads:
     

"(B) GMF

Approved. Please do the needful.

Signed (Peni Mau)

30-04-03."

135. As I said earlier at paragraph 6 above if the clock had been put to tender it may be that Motibhai Limited and Prouds, as the most competitive and satisfactory tender would have been successful. Post Fiji would not have had its interests damaged economically or reputation wise. But the whole of the evidence seems to point to an almost perverse desire to steer a dangerous course involving misconduct in a public office on the part of both Mr Peni Mau and Mr Patel. The challenge it seems was to do something dangerous and get away with it. Another unfortunate aspect is that it involved Mr Patel manipulating both Mr Peni Mau and Mr Adish Naidu. Mr Peni Mau no doubt went along with it because his partnership with Mr Patel was moving Post Fiji along in a successful way. Also, in the climate of 2002 – 2003 his perception may have been that if he complained to the powers that be it would have been ineffective. Understandably he did not wish to end his successful career at its height by resigning.
     
136. Mr Adish Naidu was a successful architect at this time. Having won the "design and supervise" architectural services contract for the post office he would feel that he wished to please Post Fiji and Mr Patel, widely perceived at the time as the most influential businessman in Fiji. When the strategy to obscure events was agreed Mr Naidu received 9% on the capital cost of $75,000 for agreeing to include the cost of the clock as a manufactured chattel of high value as part of the building contract. But then Mr Adish Naidu was not in any way the holder of "a public office".
     
137. Even when giving evidence at trial Mr Peni Mau at the risk of being disbelieved in a material matter said:
     

"I never told Naidu that the Chairman wanted to supply the clock."

138. Ms Lute Powell was appointed an outside director of Post Fiji in September 2002. She was a person who knew about the need for transparency and the importance of declaring a conflict of interest when one arose. By the time of June 2003 the clock had not been installed despite the happening of the South Pacific Games in that month. She said:
     

"Mr Mau presented a board paper regarding renovation of GPO. Board paper 30/2003 was submitted by Mr Mau, dated 26/3/03. There was no mention of purchasing of a clock. Final cost summary was attached with the Board paper 30/2003. There is no mention of a clock in the Final Cost Summary 14/3/03. Diagram was attached with the Board paper 30/2003. Board paper 35/2003 dated 19 June 2003. Title of the paper is Capital Expenditure As At 31/5/03. Entry – Payment made to Motibhai for purchase of Seiko clock for GPO. I remember seeing this entry. I asked a few questions from the Chair. I was surprised with this entry. I asked what was the approval limit of the Managing Director. I was told $50,000. I was concerned. I asked a few questions about the purchase. I asked the Chair if he could declare his interest. It was at the end of the meeting. I was concerned about the cost of the clock. It was being purchased from Motibhai. Chair had interest in Motibhai. It was case of conflict of interest. It was important to declare conflict of interest in the Board meeting. Under section 201 of the Companies Act Directors are to declare interest. Directors are to declare their interest as it is practically. The Chair was shocked when I questioned him. I had noticed a breach of policy."

139. It seems that Mr Patel was so shocked that the words that he used to respond were unable to be heard unless by the Secretary sitting next to him. Ms Powell's evidence was that she asked that her question and the reply be minuted. Later after the minutes of that meeting had been distributed, she found that the matters requested to be minuted had not been minuted. She continued in her evidence.
     

"I noticed my request to record my questions was not minuted. I realised what I was going against. I felt powerless to pursue the matter in subsequent meetings."

What she was going against was the manipulative power of Mr Patel and the way that he and Mr Peni Mau had agreed to deal with the issue of the purchase of the clock from Prouds without a tender. No doubt, as Mr Peni Mau must have thought at an earlier time, Ms Powell thought that making a complaint to the powers that be would get her nowhere. On the other hand to resign would not help either herself or Post Fiji.

The Appeal of Tevita Peni Mau

140. I consider the appeal of Mr Peni Mau first because he was the 1st Defendant at trial. It is logical because the allegation is that he did what he did with the motive and intention of giving effect to his Chairman's decision to show partiality in the award of a public contract. Mr Peni Mau was cast in the role at implementing the actions decided by himself and the Chairman in order to effect the Chairman's purpose.
     
141. If we adopt the terminology set out by Sir Anthony Mason NPJ in Shum Kwok Sher (supra) there seems no evidence to the contrary and substantial evidence in favour of the fact that Mr Peni Mau wilfully and intentionally failed to put out the clock to tender when there was an obligation on him as a holder of public office to ensure that that was done. The evidence of Adish Naidu was that he was told by Mr Peni Mau that the Chairman wishes the clock to be supplied by Prouds as part of Motibhai Limited. This evidence was found to be true evidence by Mr Justice Daniel Goundar and probably by the two assessors giving an opinion for conviction. As to motive Mr Justice Goundar found that Mr Peni Mau failed to follow procedure and did not put the contract out to tender in order "to confer a favour on the Chairman of the Board of Directors".
     
142. Can it be said that Justice Daniel Goundar was "obviously and palpably wrong" in finding the facts re failure to tender and motive proved beyond reasonable doubt? I take into account the evidence of Luke Narara who produced the relevant manuals showing that purchase of goods above a certain value must be put out to tender. I take into account that the Board Paper for the additional facade works valued at $800,000 did not mention the clock purchase. I take into account that during a police interview Mr Peni Mau, who wrote the relevant manuals, denied their existence.
     
143. Mr Justice Goundar and the majority of the assessors clearly did not accept that placing the clock as part of capital works was a valid reasonable excuse or justification for avoiding tender procedures. In my opinion along with the act of not disclosing the purchase of the clock at Board meetings at relevant times, including the capital cost of the clock as opposed to installation charges within a bricks and mortar building project, were strategies agreed by Mr Peni Mau and Mr Patel when Mr Peni Mau agreed to favour his Chairman. The object of both these decisions was to avoid tender and to keep the purchase of the clock from Motibhai Limited away from Board scrutiny. Mr Peni Mau must have known that it was inappropriate to include the purchase price of a manufactured chattel of high value in a capital works project. He also must have known that to include this within Mr Naidu's building works at a further cost to Post Fiji of 9% was an unnecessary waste of the publicly owned corporation's money.
     
144. The consequence of failing to put the contract out to tender was that the Chairman's intent for a contract showing partiality to the private sector company of which he was Chairman would succeed. Mr Peni Mau was aware of this. He acted wilfully as well as intentionally in respect of the alleged misconduct.
     
145. Mr Peni Mau was Chief Operating Officer of Post Fiji. The importance of Post Fiji, as a publicly owned company observing practices intended to prevent partiality in the award of contracts for supply of goods and services, is paramount. It cannot be said that in Fiji in 2003, the spending of $75,000 on a clock for the Suva Post Office was a small sum of money of minor importance. The steps taken by Mr Peni Mau to favour his Chairman, including keeping it from Board Members shows that Mr Peni Mau knew that his intended misconduct was serious misconduct.
     
146. Applying the principles cited in paragraph 15, 16 and 17 above, from Beniamino Naiveli v. The State, I am of the view that in the context of "misconduct by partiality" "any arbitrary act prejudicial to the rights of another" means no more and no less than what is required for the common law offence of "misconduct by partiality". Therefore a public official who in the context of "misconduct by partiality", wilfully and intentionally fails to put a proposed supply contract out to tender, thereby failing to perform a duty to which he is subject by virtue of his office, does "an arbitrary act prejudicial to the rights of another". The emphasis in this strand of the offence is upon internal misconduct resulting in partiality. That act is "arbitrary and despotic" although these words are more suited to external acts of misconduct such as occurred in the case of Beniamino Naiveli.
     
147. In the context of our present case any "misconduct by partiality" is presumed to be prejudicial to the rights of the government department or publicly owned corporation which is the victim. The department or corporation sustains economic disadvantage in not obtaining the best offer and the best price available from the market that supplies goods and services. Its reputation as a public entity is damaged if it is seen to give contracts to favourites without tender. The public expect "a level playing field" in the supply contracts handed out by government and where that is not done, there is inevitable damage to reputation.
     
148. "Abuse of the authority of his office" in this context means no more and no less than "misconduct in a public office".
     
149. Having set out the relevant evidence and the relevant law for my conclusion in the preceding paragraphs 144 through 145 I am now prepared to answer the question posed at the beginning of paragraph 143 above. The facts found by Justice Daniel Goundar were not "unreasonable" and the verdict of "guilty" was not unreasonable. The verdict is, in my view, very far from being "obviously and palpably wrong". It is in my view the verdict required by the evidence in the case. I note that Justice Daniel Goundar was satisfied beyond reasonable doubt on every element of the offence. In my view the appeal of Mr Peni Mau against conviction must fail.
     

Applying the Section 23(1)(a) criteria in the appeal on fact of Mr Patel

150. In this process I will apply the same principles of law that I have explained and adopted in considering the appeal of Mr Peni Mau.
     
151. The charge against Mr Patel in the information relating to acts of misconduct states:
     

"did an arbitrary act, namely authorising the purchase of an external Seiko clock from Prouds a company in which he has a significant financial interest".

152. I will not restate the evidence stated earlier. I will rely on it where it is relevant to the present issue.
     
153. Mr Patel's evidence has been:
     

"I did not suggest to Naidu to put a Seiko clock ... I had no idea where the clock was going to be sourced from or whom the clock was going to be sourced from. When the expenditure for the new facade in sum of $800,000 was approved on 2nd April 2003 Board meeting there was no discussion of a clock. When the budget was approved the Board did not know the source of the clock. I never suggested that the clock come from Motibhai. As a Chairman it was not my job to source the materials for the renovation. After my appointment, I held meetings. Half of the time the Board meetings did not read the papers. I never interfered with the day to day running of Post Fiji Limited. [shown the letter of 30th April 2003 set out at paragraph 131] I have never seen this letter. I was never involved in the discussion regarding reduced size of the clock with Naidu. I can't recall Naidu calling me. As of 30/4/03 I was not aware that a clock was being purchased from Motibhai. I don't get involved in the day to day running of Motibhai. If Naidu wanted to purchase the clock from Motibhai I would not have any involvement. It was Naidu's responsibility to arrange for clock. Bhupendra Patel was in charge of clocks at Motibhai. D3. I was not aware Naidu was negotiating purchase of the clock in December 2002. D5. I have not seen this email before. I had no idea about the discussion between Bhupendra and Naidu on 15/1/03. I never said that the clock was going to be a gift to Post Fiji.

154. What was D3 in the above evidence? It is a letter of 4th December 2002 from Bhupendra L Patel Director Marketing, of Motibhai Limited to Adish Naidu of ASA Naidu Architects and the body of the letter reads:
     

"Dear Mr Naidu,

RE: CLOCK FOR POST FIJI

As requested, please find attached the following information –

1] Clock diameter is 2.0 meter.

2] Electronic chime, master clock with programmed timer.

3] Speaker (15W x 2) with amplifier (30W).

The approximate cost including freight and installation is $75,000.00. Attached are 2 pages showing further details of the clock.

We look forward to your response by return so that we can make appropriate arrangements for the above clock to be especially made and shipped out of Japan."

155. In the above evidence of Mr Patel what is D5? It is an exchange of emails between Bhupendra Patel of Motibhai Limited to Adish Naidu the project architect. The first at 9.16 a.m. on 15th January 2003 from Motibhai Limited tells the architect that the delivery time into Fiji for the clock is "3 to 4 months" and that in order to have the outdoor clock illuminated there are two options.
     

"[a] Spotlight to be installed beneath the wall towards the dial at out end at our cost.

[b] Have illuminated hour marks – for which there will be an extra cost."

The second at 12.50 p.m. on the same day from Adish Naidu to Bhupendra Patel says:

"Please confirm a price for this clock with Option B in your paragraph 2."

The third at 2.26 p.m. on 16th January 2003 from Bhupendra Patel's secretary to Adish Naidu indicates that after communication with Seiko Australia it is necessary that various camera shots of the sites of the clock on the building be taken. Adish Naidu is asked to help. The photos will be taken by Rajesh Singh of Prouds but he needs assistance.

"So that he take the appropriate/required shots under your guidance with the Digital Camera".

156. While considering the evidence of clock procurement, there is at Record page 1960, a memorandum of 11th August 2002 by FAX to Bhupendra Patel at Motibhai from Vinesh Kumar General Manager at Post Fiji. Post Fiji wanted quotations for a 1000mm diameter clock. On 21st August 2002 Bhupendra Patel wrote a letter to Vinesh Kumar at Post Fiji and said:
     

"As requested we are pleased to provide you pricing for the following:

FC 103 $9995 + VAT ...

FC 108 $14,595 + VAT."

There followed at quote for a "controller" and a drip free case for the controller at a price of $2378.

It ended:

"We now look forward to your valued business".

This would seem to be at a time before the clock negotiation of Post Fiji with Motibhai Limited was moved by Mr Peni Mau to be dealt with by Adish Naidu.

157. The original proposal when Adish Naidu commenced to source the Seiko clock was for a 2000 mm diameter clock. In giving the following evidence Mr Adish Naidu mistakenly remembered the diameter as 1800mm. Later in his evidence this mistake was clarified. Adish Naidu probably first became involved sometime after the direct negotiations which had taken place between Post Fiji and Motibhai Limited in August 2002 which are set out at paragraph 153. The following evidence covers the period between about September or October 2002 and the letter of 30th April 2003:
     

"I did not submit where the clock should be bought. I did not give details of the clock. Clock was going to be supplied by the Chairman. My discussion with the Managing Director was to look at a clock. I discussed with Mr Mau and he told me that the Chairman wants to supply the clock. He referred to Chairman of Post Fiji Board. The Chairman at that stage was Mr Mahendra Patel. I have known him earlier. I discussed with Mr Mau about the clock. It was my idea to put the clock. Mr Mau told me that the Chairman wanted to supply the clock. Mr Mau said I needed to discuss the issue with Mr Mahendra Patel the second accused. I discussed with Mr Patel the clock that we wanted to put. Mr Patel directed me to liaise with Mr Bhupendra Patel. We discussed about the size of the clock. The size was going to be 1800mm about 6 feet. I knew Mr Bhupendra Patel – one of the directors of Motibhai. Motibhai has several directors. The chairperson of Motibhai is Mr Mahendra Patel – the second accused. I proceeded to discuss with Mr Bhupendra Patel. I told him I wanted an 1800mm clock. He gave a price of $75,000. Later he told me he could not provide 1800mm clock but a 1200mm clock – 4 feet. $75,000 price was for 1800mm clock. I wrote to Mr Peni Mau. I advised him 1200mm was acceptable to me and the reduced price was to be sorted out with Motibhai company. Smaller size to me would attract a lower price. I can identify my letter. Letter shown. Dated 30/4/03 to Mr Mau. Mr Mau was the Managing Director of Post Fiji. The letter was written to advise the reduction in the size of the clock. ... Mentioned Mahen Patel – the second Accused."

158. How it came about that the facade would acquire an outdoor clock and whether it was required to be in Mr Naidu's building contract and how it came to be within Mr Naidu's building contract is covered in the following evidence of Mr Naidu.
     

"I submitted the attached budget to Post Fiji Limited. There is no mention of a clock in the budget. Motibhai supplies Seiko clock. They proposed Seiko clock. I never suggested the clock should be only Seiko brand.

The second phase was extension of facade. The idea was to give Post Fiji a new look. A facade was better option. We drew a drawing for facade. Drawing No. A10 shown. My office prepared this document. I am the author of the design. Drawings were done by my staff. This was drawing the first phase. Drawing mentions clock – "New Outdoor Clock Supplied by Client and Installed by Contractor/Sub-contractor." Client means Post Fiji. Tender.

It was my idea to place the clock in the plan. I was the chief designer. The clock was supposed to be supplied by Post Fiji. There was no requirement that I supply the clock.

... To my knowledge there was no tender called for the clock. ...

(the following refers to a document prepared to explain in detail the construction material for the second phase with a view to calling for tenders).

There is no mention of a clock in this document.

The clock was not suggested in my initial proposal. There are companies that supply clocks. Tappoos supply clock. LD Masters supply wall clocks.

To my knowledge Motibhai is a large company. They deal with several disciplines. Clock was bought from Prouds subsidiary of Motibhai & Company. I never suggested Post Fiji to buy the clock from Prouds. I was aware Post Fiji had a Board. Mr Mahen Patel was the Chairman. I can't recall the other Board members. The project in 2003.

... [In re-examination] The second phase presentation was done in the 2nd Accused's office in Nadi accompanied by Mr Dhiren and Mahen Singh of Post Fiji. PE4 – Nothing to suggest Mr Mau asked for reduced price. It was not my idea to buy a Seiko clock from Motibhai Company. It was Post Fiji to seek reduced price for smaller size clock."

159. Mr Nagin represented Mr Patel before the High Court. I note that Mr Nagin established in cross examination that Mr Naidu had received 9% commission on all building works including the supply cost of the Seiko clock. However Mr Nagin failed to cross examine Mr Naidu upon:
     
     1. the evidence that after being instructed by Peni Mau, Peni Mau told him to meet with Mr Patel which he did do.
        
     2. the evidence that after seeing Peni Mau on 30th April 2003 about the size reduction to 1200mm Mr Naidu spoke with Mr Mahen Patel before writing to Mr Peni Mau.
        
     3. the evidence that the second phase presentation was done by Mr Naidu accompanied by Mr Dhiren and Mahen Singh of Post Fiji in the Chairman's office, meaning the office of the Chairman of Motibhai at Nadi.
        

It seems to me bearing in mind that Mr Nagin knew what his client's sworn evidence would be that Mr Nagin did not feel obliged by the rule in Browne v. Dunn (supra) which requires cross examination of a witness if Mr Nagin's client, Mr Patel was to give evidence of having nothing to do with the purchase of the clock or with Mr Naidu. Yet Mr Nagin would make a final speech to assessors and Justice Daniel Goundar urging them to accept Mr Patel on this and to conclude that Mr Naidu was not truthful.

160. There is also the evidence of Mr Josefa Kamikamica a Director of Post Fiji appointed by the Minister of Public Enterprise. He gave evidence of the Lute Powell incident which was in June 2003. But he was called about what he had heard from the Chairman of Post Fiji about the clock.
     

"After one of the meetings during lunch time. I heard the clock was given as a gift. Mr Mahendra told me the clock was given as a gift. I thanked him because it was a gift. I thanked Mr Mahendra."

In view of the fact that Mr Nagin knew Mr Patel's version of this incident was that he never said it was a gift on his part he should have put this to Mr Kamikamica. But he failed to do so.

161. The next point is the South Pacific Games. Post Fiji was a sponsor for the South Pacific Games to be held in Suva commencing on 28th June 2003. Early in the negotiations with Seiko, it was clear that there would be a lead time of at least three months in respect of the delivery of the clock in Suva. The installation would take a considerable time. The clock was ordered on 30th April 2003. It became operational for the first time at 3.00 p.m. on 21st January 2004. Mr Akio Naito of Seiko Australia emailed Bhupendra Patel at Motibhai Limited on 30th April 2003 at 5.25 p.m. that "we won't have it installed by September or October".
     
162. Why then did Adish Naidu say in his letter of 30th April 2003 to Peni Mau (see paragraph 130 above) "If an order is given today then they will be in a position to install before the SPG Games"? It should also be noted that when Adish Naidu was asked about this in cross examination he said that he knew that there was no possibility of installation by 27th June 2003. It should further be noted that Siteri Waqavonovono gave evidence in respect of an internal order that he issued in respect of the clock as procurement officer of Post Fiji. He said "I crossed off the phrase SPG Games. The installation was done after the SPG Games".
     
163. I am of the view that this was untruth and manipulation with the intention of advancing an excuse for not tendering the purchase of the clock. Mr Naidu was asked to include a reference to SPG in his letter to Post Fiji even though he knew the clock would not be installed until many months after the South Pacific Games. The order rectified by Mr Waqavonovono is another manipulation. The point is that it was a manipulation based on underlying falsehood. Those advancing the excuse knew that the clock on the facade had nothing to do with the SPG Games.
     
164. Before summing up the factual issues, I would refer to the extra element in the charge against Mr Patel. This arises from Fiji's adoption of the Queensland Criminal Code. (see paragraphs 1 and 12 above). The material words are:
     

"if the act is done or directed to be done for purpose of gain he is guilty of a felony".

165. In Shum Kwok Sher (supra) Sir Anthony Mason does not refer to this. This is because in the common law offence of misconduct in a public office by way of partiality in awarding government contracts to a friend or relative, corporate or individual, the gain to the public officer is presumed.
     
166. This gives rise to what is to be proved in respect of the codified additional element of "done for the purpose of gain". In my opinion if it is done for the purpose of gain to the public officer or to a friend or relative, corporate or individual this element is proved without more. The usual situation is that it is presumed as in Shum Kwok Sher that the public officer "gains" by benefitting the friend or relative, corporate or individual.
     
167. In the particulars against Mr Peni Mau the motive was to favour his Chairman. But in respect of Mr Patel the motive for which the relevant acts are done or not done is the purpose of gain to himself and to Motibhai Limited of which he is Chairman and a 12 ½ percent shareholder. This motive attracts the aggravated version of the offence under Section 111. If the purpose of gain is for himself for Motibhai Limited or for relatives of friends, corporate or individual then this element of the offence is satisfied. Motibhai Limited is clearly a corporate friend or relative. The prosecution do not have to prove that an actual gain is realised by anyone and it is the "purpose of gain" only that must be proved.
     
168. Can it be said that Justice Daniel Goundar was
     

"obviously and palpably wrong" in finding the facts and motive re Mr Patel's "authorising the purchase of an external Seiko clock from Prouds a company in which he has a significant interest".

169. The documents produced which are not disputed, show Mr Patel's hand in the matter not only authorising the contract, but keeping abreast of all negotiations and manoeuvres along the way from a decision initiated only by Mr Patel until the clock was installed in January 2004. I note that copy documents produced by Motibhai Limited all have a circulation stamp in which the first name is "MMP".
     
170. There is also Mr Naidu's evidence of
     
     • (i) being told to discuss the matter with Mr Patel by Mr Mau when given his task of sourcing the clock within his second phase of the building works, which Mr Naidu says he did.
       
     • (ii) Mr Naidu discussing the reduced size of clock issue on 30th April 2003 with "Mahen Patel" before writing the letter to Peni Mau (see paragraph 133 above).
       
     • (iii) Mr Naidu presenting the plans for the second phase not to Post Fiji Board but to Mr Patel at his Motibhai office at Nadi.
       
171. There are also compelling inferences of it being Mr Patel's decision to purchase from Proud's to be drawn from Mr Peni Mau's actions and from the various manipulations discussed above.
     
172. Mr Peni Mau failed to put the supply of the clock out to tender. This can only be because he was persuaded to further Mr Patel's decision to buy the clock untendered from Prouds. Favouring this decision of his Chairman, was not going to benefit him and he was likely to be committing a serious criminal offence. So he must have agreed with Mr Patel not to put the clock out to tender. Mr Peni Mau must also have agreed with Mr Patel to remove the purchase of the clock from being the allotted task of Vinesh Kumar a General Manager of Post Fiji sometime after August 2002 and move it to be sourced by Mr Adish Naidu as part of the second phase of the building contract. This manipulation and what it achieved is discussed fully above at paragraphs 143 and 144.
     
173. These actions of Mr Peni Mau and the manipulations show that everything was being done to further and facilitate the Chairman's decision for Post Fiji to purchase the clock from Prouds without tender. If the Chairman had not so decided, why would any of these things be done by Peni Mau contrary to his personal interests and his duty to Post Fiji?
     
174. Having considered the documents, the evidence of Adish Naidu and the manipulations it is clear beyond any doubt that when Mr Patel gave sworn evidence that he as Chairman was above ordinary business decisions at both Post Fiji and at Motibhai and had no input in the purchase of the clock, it was a series of untruths.
     
175. Taking the positive evidence of Mr Patel's involvement together with these untruths and his saying to Mr Josefa Kamikamica that the clock was his "gift" to Fiji, it is overwhelmingly proved that Mr Patel authorised the purchase of the clock from Prouds a company in which Mr Patel had a significant financial interest.
     
176. There is also the untrue manipulation about the clock being in place for the South Pacific Games by 27th June 2003.
     
177. There is also Ms Lute Powell's evidence that Mr Patel failed to declare a conflict of interest at any time before the contract was placed. Also Ms Powell's evidence of a cover up in the Board minutes. If anything is clear beyond any possible doubt it was that Mr Patel and Mr Peni Mau had agreed to keep anything about the clock purchase before it was a completed transaction away from the Board of Post Fiji.
     
178. Justice Daniel Goundar said about motive
     

"I feel sure that [Mr Patel] was motivated ... to increase his personal wealth by authorising the purchase of the clock from Motibhai."

I am of the view that in so finding Justice Daniel Goundar was not "obviously and palpably wrong". In my view that was the only available conclusion on the evidence.

179. Just as discussed above in respect of the case against Mr Peni Mau the misconduct in public office alleged against Mr Patel is fully proved. That is also the position in respect of motive.
     
180. There is no doubt that this misconduct was a serious matter and that Mr Patel intended the consequences as well as the actions involved so that the offence was wilfull and intentional. It was a culpable act without any reasonable excuse or justification.
     
181. This was misconduct in a public office. In terms of Section 111 it was an "arbitrary act in abuse of Mr Patel's authority of office and was prejudicial to the rights of Post Fiji Limited". It was also done for the purpose of Mr Patel's personal gain.
     
182. Given the evidence and the inferences to be drawn from it Mr Justice Daniel Goundar was not "obviously and palpably wrong" in convicting Mr Patel. Applying the criteria of section 23(1)(a) the Court of Appeal Act it was a reasonable verdict and Mr Patel's appeal against conviction should be dismissed.
     
183. It is surprising that the assessors in this case should by a majority give an opinion of conviction in respect of Peni Mau, and then acquit Mr Patel. They accepted that Mr Peni Mau had abused his office in order to favour the Chairman with a valuable contract going to his company. Yet they acquitted the Chairman being favoured, whose decision it was to award that contract without a tender process and without declaring a conflict of interest. In addition the Chairman's decision was successfully implemented. The fact is that because the agreed documents and the events backed up by Mr Adish Naidu as to Mr Patel's detailed involvement throughout, the evidence against Mr Patel was and is overwhelming. All of which makes the assessors decision to acquit Mr Patel more surprising.
     

Appeals against Sentence

184. While these verdicts are a personal tragedy in both cases, I believe that Justice Daniel Goundar has made no errors of law in fixing sentences of 9 months for Mr Peni Mau and 12 months for Mr Patel. It is inevitable that if those in top positions in public service misconduct themselves by avoiding safeguards and award valuable contracts for the supply to the public sector of goods and services, that an immediate custodial sentence will be appropriate. Perhaps in future public servants will realise this and be deterred from misconduct or abuse of office. In Shum Kwok Sher the judge awarded 12 months concurrent. The Court of Appeal in Hong Kong increased sentence to 2 ½ years. The contract amounts involved in Mr Shum's activities were huge in comparison to the present case. The case does suggest that in respect of this case 9 months and 12 months were the right sentences.
     

Law Reform

185. I believe it would be more understandable for all involved if the common law offence as explained by Sir Anthony Mason NPJ in Shum Kwok Sher were enacted into Fiji law alongside section 111 of the Penal Code. It would provide appropriate and more comprehensible language where it is misconduct by showing partiality to friends or relatives, individual or corporate in the matter of awarding valuable contracts for supply of goods and services to public bodies. It would avoid using language like "arbitrary" or "despotic" which are difficult to explain in the strand of misconduct involved in the present case and in the case of Shum Kwok Sher.
     

Salesi Temo, JA

ORDERS OF THE COURT

186. The orders of the Court are:
     
     1. the appeals of Tevita Peni Mau against conviction and sentence be dismissed.
        
     2. the appeals of Mahendra Motibhai Patel against conviction and sentence be dismissed.
        

Hon. Justice Salesi Temo
Justice of Appeal

Hon. Justice Kankani Chitrasiri
Justice of Appeal

Hon. Justice A.L.B. Brito-Mutunayagam
Justice of Appeal

Hon. Justice William Marshall
Justice of Appeal

SOLICITORS
Sherani & Co. for the 1st Appellant
R. Patel Lawyers for the 2nd Appellant
FICAC L/O for the Respondent