State v Petero [1994] FJHC 166; Hac0025d.1993s (9 November 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0025 OF 1993

STATE

V.

SUE PETERO

BEFORE THE HON. MR. JUSTICE PAIN AND ASSESSORS

Counsel: Mr. Hook for State
Mr. T. Fa for Accused

Trial: 7th November 1994 et seq.
Remarks: 9th November 1994

REMARKS OF TRIAL JUDGE TO ASSESSORS

Gentlemen Assessors, just before we re-commence I would like to give you a short explanation of some matters. At the end of the trial I will be summing up and explaining the legal position in relation to the trial and what I touch upon now I will cover more fully in my summing up to you. But I just want to explain to you at this stage what is occurring.

There are two legal principles that are involved here and they were featured in the discussion that I had with counsel before lunch. The first of these is enshrined in the Constitution as what we know as the presumption of innocence. Any person in this country is presumed innocent of any wrong doing until it is proved to be otherwise.

The other legal principle, and I will cover this fully in my summing up, is that the onus is on the prosecution to prove the guilt of an accused person. What that means is that an accused is entitled to say, "I plead not guilty to these charges. I don't have to do anything". The onus is on the state to prove that and then of course the state is put to the proof. Any plea of not guilty means exactly that. The state is put to the proof of the case. Now that is a heavy onus on the State. Every ingredient of the charge must be proved and that standard is proof beyond reasonable doubt. And I will explain that further to you in my summing up.

Now in this case as you know the charge is one of embezzlement of very large sum, $50,000.00. So that the prosecution here must prove what sum has been stolen or embezzled, and then must prove that this accused was responsible for that. Now you realise that there are these 27 ticket books that were retrieved from the office where the accused and one other person worked. Those books contain a total of 2,700 tickets. It would appear that some of them may have been regularly processed and some may have been irregularly processed. But that's for the prosecution to prove. The other thing you will have noticed is that a lot of them are for relatively small amounts, you know, $20 or $30. The onus is on the prosecution to prove that a certain sum was embezzled and the accused was the person responsible. The accused denies that she is responsible for any embezzlement at all. So to discharge this onus, the prosecution sees that the only way is to trace through each ticket and see what occurred in respect of that ticket. By doing that, as I understand it, the prosecution would be setting out to identify those sales which the price has not been accounted for and that would be done in relation to every ticket and it may be that in some way that may be summarised at the end. Now that will be very time consuming as you will already have noticed. Each of the 2,700 tickets will need to be identified by the witness and he will have to check the other documentary records in order to enlighten us as to what the situation was in respect of that particular ticket.

Now why I am telling you this now is that on this basis the trial is likely to take a very much longer time than I indicated at the beginning. So I just wanted to warn you of that and it will necessarily be a slow and relatively laborious process.

But I repeat that each party here, the prosecution and the defence are completely within their rights and obligations. The nature of this case with so many different items, making up what the State says is the total deficit, it just means that the proof will be a long and tedious process for the State, bearing in mind of course that the accused has pleaded not guilty and is quite entitled to put the prosecution to this proof. I just wanted to give you that explanation at this stage.

JUSTICE D.B. PAIN

HAC0025D.93S