Tuisolia v Fiji Independent Commission Against Corruption [2010] FJHC 100; HAM122.2009 (1 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM122 of 2009

BETWEEN:

SAKIUSA TUISOLIA
Applicant

AND:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
Respondent

Hearing: 26th – 27th January 2010
Ruling: 1st April 2010

Counsel: Mr. D. Sharma & Mr. P. Sharma for Applicant
Mr. M. Tennakoon & Ms H. Matakitoga for FICAC

RULING

Introduction

[1] The applicant is charged with three counts of fraudulent conversion, two counts of fraudulent falsification of publications and three counts of fraudulent falsification of accounts. The offences were alleged to have been committed between 21 October 2004 and 31 April 2006, whilst the applicant was employed by the Airports Fiji Limited as the Chief Executive Officer. The allegations are that he fraudulently applied for his own use and benefit the funds of his employer and then caused false entries to be made in the accounts to conceal the fraud.

[2] This is an application by the defence to stay the case permanently on the ground of abuse of process. The circumstances that the defence relies on to show abuse of process are:

• conduct of the prosecution in serving late disclosures and substituting new offences in the Information,
  
• improper procurement of key witnesses’ statements,
  
• absence of a crucial witness,
  
• issue estoppel, and
  
• use of inappropriate forum.
  

[3] These circumstances are expounded in the submissions of the defence and replied to in detail in the submissions of the prosecution.

Relevant Principles

[4] It has long been recognized that a court has an inherent right to prevent abuse of its process and may stay proceedings in order to do so. The inherent power to stay proceedings applies equally in criminal cases (Connelly v DPP (1964) A.C. 1254). The circumstances in which abuse of process may arise are varied.

[5] In Regina v Horseferry Road Magistrates’ Court Ex parte Bennett [1993] UKHL 10; [1994] 1 A.C. 42, the House of Lords in a majority judgment held that a defendant committed to a trial after being extradited in breach of existing extradition procedures of the recipient country and the country where the defendant was found, can amount to an abuse of process to justify stay of prosecution.

[6] In State v Sat Narayan Pal Criminal Appeal No.AAU0036/2006, the Court of Appeal upheld a decision of the High Court to grant stay of prosecution where the complainant had acted in conflict of interest and in bad faith to obtain evidence against the accused in order to deflect prosecution of alleged violation of Fair Trade laws by the complainant, which the accused was investigating as an Inspector at the Department of Fair Trading.

[7] In Hui Chi-Ming v R (1992) the Privy Council described an abuse of process as something so unfair and wrong that the prosecution should not be allowed to proceed.

[8] In a later case, the Privy Council in AG of Trinidad and Tobago v Philip (1995) 1 AC 396, held that the power to stay prosecution for abuse of process is exercised to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so.

[9] In R v. Derby Crown Court, exp Brooks [1984] 80 Cr. App. R. 164, Sir Roger Ormrod said:

"The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of processes if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the prosecution of or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused or to genuine difficulty in effecting service."

[10] In Jago v. The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Mason CJ of the High Court of Australia said:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences..."

[11] In a more recent case, the High Court of Australia in R v. Edwards [2009] HC 20 (21 May 2009) described stay of criminal proceedings as an extreme step that should be taken only if it is not possible to hold a fair trial.

[12] In Moevao v. Department of Labour [1980] 1 NZLR 464, Richmond P of the New Zealand Court of Appeal considered the doctrine of abuse of process and at p.470 said:

"....it cannot be too much emphasized that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of."

[13] And further at p.482 Richardson P added:

"The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of process of the Court."

[14] In R v Jewitt 1985 CanLII 47 (SCC), the Supreme Court of Canada held that the power to stay criminal proceedings should be exercised only in clearest cases where compelling an accused to stand trial would undermine the community’s sense of fair trial and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings.

[15] I bear in mind these principles to consider the grounds for stay in this case.

Late Disclosure

[16] Under this head, the applicant submits that the disclosure of evidence made at various stages of proceedings before the commencement of the scheduled trial in November 2009 amounted to rogue conduct on behalf of the prosecution. The applicant further submits that the late disclosure of evidence was done to force the defence to seek an adjournment and to vacate the trial so that the charges could be left hanging on the applicant.

[17] Counsel for the prosecution submits that the late disclosure on its own is not in bad faith. Counsel further submits that the initial disclosures served on the applicant are still relevant to the trial and the additional disclosures served later did not substantially change the prosecution case, so as to prejudice the applicant.

[18] The court record shows that the applicant first appeared in the Magistrates’ Court on 11 February 2008. His counsel, Mr. Leung, informed the court that they had received disclosures, which I understand to be the first phase disclosures comprising the caution statements of the applicant. Counsel also indicated to the court that the applicant was going to take a constitutional challenge to the establishment of FICAC to prosecute criminal offences.

[19] On 27 March 2008, additional disclosures were made, but the court was also informed that there were some outstanding disclosures.

[20] On 2 July 2008, counsel for the applicant confirmed to the court that they had been served with the disclosures and the case was transferred to the High Court.

[21] On 25 July 2008, the case was called in the High Court. Time tabling orders were made for filing of constitutional challenge to the establishment of FICAC to prosecute. The motion challenging the legality of FICAC was heard on 24 March 2009 and the case was adjourned to 28 April 2009 for a decision. However, the pending ruling was overtaken by the constitutional event of 10 April 2009. The judiciary was dismissed. When the judiciary was eventually restored and judges appointed, the case was called in court on 29 June 2009. Since the legality of FICAC to prosecute was no longer an issue, the case took a normal course of a trial.

[22] However, before a trial date could be set, the applicant’s counsel on record withdrew after seeking leave from the court. The case was adjourned to allow the applicant to instruct a new counsel. On 9 September 2009, the present counsel, Mr. Sharma came on record and sought further disclosures, which the prosecution agreed to provide. The case was set for trial on 25 November 2009 upon consensus from both parties.

[23] On 9 October 2009, the case was called for a pretrial conference. Counsel for the prosecution informed the court that the applicant was served with additional disclosures on 29 September 2009. The applicant confirmed receipt of the additional disclosures.

[24] Disclosures were filed in court on 29 September 2009 in anticipation of the trial in November 2009. The disclosures comprised of witnesses’ statements and documents. Twenty one volumes of documents were filed. A missing volume was subsequently filed on 6 October 2009. By 9 October 2009, substantial disclosures were made to the defence.

[25] On 13 November 2009, the prosecution filed a notice of additional evidence containing the following documents:

A. Statement by Sanjana Mishra of Nasoso, Nadi dated 12th November 2009 (typed).

B. Summary of Irregularities – VISA Card A/c 4999-6400-0007-8533 of Ratu Sakiusa Rorateivava Tuisolia from 16/10/04 – 16/12/06.

C. Ratu Sakiusa Tuisolia’s Accountable Advance trip to Sydney, Australia – Pay Out on 31/10/05.

D. Ratu Sakiusa Tuisolia’s Accountable Advance trip to Brisbane – Pay Out on 31/7/05, Application for Accountable Advance Against Traveling Expenses dated 23/6/05 and Duty Travel Application Form.

E. Ratu Sakiusa Tuisolia’s Accountable Advance trip to USA FOR ASPEN LEADERSHIP COURSE – Pay Out on 30/9/05.

F. Ratu Sakiusa Tuisolia’s Accountable Advance trip to KUALA LUMPUR FOR ACI MEETING – Pay Out on 31/03/06, Application for Accountable Advance Against Traveling Expenses dated 23/02/06 and Duty Travel Application Form.

G. Ratu Sakiusa Tuisolia’s Accountable Advance trip to HONG KONG – Pay Out on 30/6/06.

H. Ratu Sakiusa Tuisolia’s Accountable Advance trip to AUSTRALIA FOR DGCA MEETING – Pay Out on 31/10/05.

[26] On 20 November 2009, the following additional documents were filed:

A. Statement by Seseleka Imo Sagoa of 69 Damu Road, Nepani dated 13th November, 2009 (typed).

B. Statement by Adish Naidu of 81 Ratu Cakobau Road, Suva dated 14th November, 2009 (typed).

C. Statement by Sakeasi Seru of 96 Nailuva Road, Raiwai dated 16th November, 2009 (typed).

D. Statement by Jone Koroitamana of Lot 4 Waqa Circle, Nasoso, Nadi dated 17th November, 2009 (typed).

E. Copy of Offer Letter from ANZ – ANZ Visa Business Card Account dated 22nd September, 2004.

F. Copy of ANZ Visa Business Card Programme Terms and Conditions of use dated 11th October, 2004.

G. Copy of Letter from Chairman – Airports Fiji Limited, Viliame Leqa dated 31st May, 2006 – Extension of Employment Contract with Airports Fiji Limited (Information Paper), Board Meeting 5/99 – Airport Help.

H. Copy of Letter from Minister for Public Enterprises and Public Sector Reform, Jonetani K. Galuinadi, dated 15th February, 2006 – Board Appointment – Airports Fiji Limited re-Appointment as a Chairman.

I. Copy of Official Receipt of Airports Fiji Limited in the year 2005:

- Receipt No. 106968 dated 18/03/05 F$609.16.

- Receipt No. 106969 dated 18/03/05 F$300.00

- Receipt No. 112523 dated 25/05/05 F$360.00

- Receipt No. 116469 dated 26/07/05 F$172.57

- Receipt No. 118053 dated 30/08/05 F$415.69

- Receipt No. 118126 dated 01/09/05 F$150.00

- Receipt No. 118143 dated 02/09/05 F$200.00

- Receipt No. 120344 dated 20/09/05 F$163.35

- Receipt No. 120461 dated 29/09/05 F$347.19

- Receipt No. 120477 dated 29/09/05 F$300.03

- Receipt No. 121337 dated 14/11/05 F$1300.98

- Receipt No. 123804 dated 22/11/05 F$42.00

J. Copy of Official Receipt of Airports Fiji Limited in the year 2006:

- Receipt No. 127942 dated 10/01/06 F$1500.00

- Receipt No. 138208 dated 30/05/06 F$884.63

- Receipt No. 138351 dated 14/06/06 F$755.54

- Receipt No. 138447 dated 21/06/06 F$735.00

- Receipt No. 138448 dated 21/06/06 F$115.00

- Receipt No. 141251 dated 21/07/06 F$48.59

K. Copy of Official Receipt of Airports Fiji Limited No. 1375-5 dated 18/12/06 F$384.00 – Reference: CEO’s Credit Card Reimbursement for No.06 – Gold Coast.

L. Copy of Official Receipt of Airports Fiji Limited No. 1369-1 dated 14/12/06 F$1,310.00 – Reference: Reimbursement of Credit Card for Gold Coast trip in Nov.06.

M. Copy of Certificate (Under the Companies Act) CO.NO.12906.

N. Credit Card Reconciliation Summary for 2005 and 2006.

O. Copy of Particulars of directors and Secretaries for Airports Fiji Limited in the year 2002 dated 20th May, 2004.

P. Airports Fiji Limited, A/P Batch Listing – Invoice (APIBTCLZ) dated Wednesday, June 29, 2005 – Pay Out 31/7/2005.

[27] On 23 November 2009, the following additional documents were filed:

A. Further Statement of Timoci Vuniwawa Tuisawau dated 20/11/09 (5 pages).

B. Airports Fiji Limited A/P Batch Listing – invoice (APIBTCLZ) dated 01/12/2005:

- List of Statement Fee

- Visa Business Card statement dated 29/09/05 to 30/10/05

- ANZ statement account for Airports Fiji Limited dated

- 04/11/05

- CEO’s Internal Minute dated 06/10/05, Tanoa Plaza Receipt dated 3/10/05 F$272.00, Tanoa Plaza Suva Tax Invoice dated 3/10/05 to 4/10/05.

- CEO’s Internal Minute dated 27/3/06, Bounty Receipt dated 15/10/05 F$53.70, The Bounty Restaurant and Cocktail Bar Order dated 15/10/05 F$17.70.

- Sanjana Mishra’s Internal Minute to Sala dated 5/11/05.

- ANZ Visa Business Card Statement dated 29/09/05 to 30/10/05 (2 pages).

[28] On 25 November 2009, the following additional documents were filed:

A. Immunity Letter for Sanjana Mishra dated 25th November 2005.

B. Immunity Letter for Rohit Prasad dated 25th November 2005.

C. Immunity Letter for Simione Naikarua dated 25th November 2005.

[29] On 27 January 2010, the following document was filed after an issue arose about an unavailable witness during the hearing of this application for stay:

Statements of Ateesh Chand f/n Shrees Chand dated 23rd of October, 2007 and 30th of November, 2007.

[30] It is the disclosures made after 9 October 2009 that the applicant relies to found a case for abuse of process.

[31] While I accept that disclosures should be made available to the defence well before the commencement of a trial, there is no hard and fast rule restricting disclosure of evidence at any stage before or during a trial. As Lawton LJ in Reg v. Hennessey (Timothy) (1978) 68 Cr. App. R 419 at p.426 said the courts must:

"keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence."

[32] The obligation to disclose is a continuing duty of the prosecution developed by common law.

[33] The common law rules of disclosure and which were adopted in this country in the case of State v. Jamuna Prasad [1995] 41 FLR 223, owe their origin to the elementary right of every accused person to a fair trial. If an accused person is to have a fair trial he must have adequate notice of the case which is to be made against him.

[34] Fairness also requires that the rules of natural justice must be observed. As Lord Taylor of Gosforth CJ observed in R v. Keane [1994] 1 W.L.R. 746, 730G, the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the accused material which might undermine their case against him or which assist his defence.

[35] In the present case, it is not alleged that the prosecution has withheld material evidence from the defence. What is contended by the applicant is that the service of additional disclosures following the setting of a trial date constitutes rogue conduct on behalf of the prosecution.

[36] In my view, the additional disclosures, albeit late, is entirely consistent with the duty of the prosecution to disclose evidence to ensure a fair trial for the applicant. Continuing disclosures is almost a norm in fraud cases. This is because fraud prosecution involves voluminous amount of documents. It is in the interests of justice that all material documents are made available to an accused to ensure a fair trial is held. The primary principle is that the applicant has the disclosures to prepare a defence. Looking at the conduct of the prosecution in view of their disclosure obligations to the applicant, the prosecution complied with rules of fairness and open justice by disclosing the additional evidence. The fact is that the applicant has the disclosures. These circumstances do not show any manipulation of court process on behalf of the prosecution.

[37] Furthermore, I find no basis to conclude that the prosecution used their disclosure obligations to manipulate the court process to derail the scheduled trial on 25 November 2009 as suggested by the applicant. The applicant is represented by a senior counsel. The additional disclosures were not voluminous as the first set of disclosures. The applicant could have proceeded with the trial after studying the additional disclosures, which did not substantially change the prosecution case. The affidavit of the applicant reveals that he has a very good grasp of the prosecution case and that he can contradict every piece of evidence relied on by the prosecution to substantiate the charges. There is nothing in his affidavit to suggest that the additional disclosures were so late so as to deny him adequate time to instruct his counsel before the scheduled trial date.

[38] The defence elected to apply for stay of prosecution on 24 November 2009, a day before the scheduled trial date. The prosecution had not applied to vacate the trial date and was ready to proceed with the hearing. It was not the conduct of the prosecution but the application for stay by the defence that caused the trial to be vacated. In these circumstances, the conduct of the prosecution does not amount to an abuse of process.

Amendment of Information

[39] In crafting the arguments for stay under this head, the applicant contends that the reason the prosecution did not retain the charges filed in the Magistrates’ Court, but filed new charges in the Information, is because they knew the initial charges were doomed to fail. What this submission seeks to invoke is, for the court to undertake a review of the prosecution decision to charge new offences in the Information and to forego the charges filed in the Magistrates’ Court.

[40] What charges are to be brought against an accused is within the discretion of the prosecution. The prosecution does not have to retain the original charges filed in the Magistrates’ Court when filing Information in the High Court. Section 233(2) of the Criminal Procedure Code provides:

"In the information, the Director of Public Prosecutions or the Commissioner of the Fiji Independent Commission Against Corruption may charge the accused person with any offence, either in addition to or in substitution for the offence in respect of which the accused person has been transferred to the High Court for trial." (underlining mine)

[41] After the Information is filed, the prosecution has the power to amend it with the leave of the court. The power to amend is provided by section 274(9) of the Criminal Procedure Code. It includes substitution or addition of new offences. Section 274(9) reads:

"The Court may, upon application by the prosecution, grant leave to amend an information, whether by way of substitution or addition of charges or otherwise."

[42] If a late amendment to the Information is allowed, and there is a risk of the accused being prejudiced by the late amendment, then an appropriate remedy to address the prejudice is to grant an adjournment, as provided by section 274(10) of the Criminal Procedure Code:

"In deciding whether or not to grant leave, the Court may consider whether such amendment might embarrass the accused in his defence and whether such embarrassment might be appropriately mitigated by way of adjournment of trial."

[43] In the present case, the Information was filed on 6 October 2009. This Information contained three counts of fraudulent conversion and three counts of fraudulent falsification of publications.

[44] On 2 November 2009, the Information was amended with the leave of the court. The amended Information retained the first five counts in identical terms as contained in the earlier Information, but substituted count 6 with three new offences of falsification.

[45] The nature of allegations in the fraudulent conversion charges were not altered by the amendment. The substance of falsification charges remained as an act by the applicant to conceal the fraud.

[46] When the applicant was charged in the Magistrates’ Court, he faced twenty two counts of false pretences and twenty two counts of abuse of office. The substance of the allegations contained in those charges was that the applicant abused the credit card facility of his employer.

[47] When the Information was filed in the High Court, although the prosecution substituted the charges with new offences, the substance of the allegations was not altered. The prosecution has been consistent from the day one that the allegation against the applicant is that he abused the credit card facility of his employer.

[48] The substitution of new offences when the Information was filed and the subsequent amendment to the Information was within the discretion of the prosecution and was permissible under the Criminal Procedure Code. A prosecutorial discretion to prosecute or not to prosecute is a matter that the Court will not inquire into in absence of mala fides. The mere fact that the prosecution substituted new offences in the Information and subsequently amended it is not sufficient proof of bad faith. As Pain J observed in State v. Neori Qoli [1997] HAC 7/07, it is not uncommon in this jurisdiction for the prosecution to file successive Information or amended Information before the trial. Only in a very extreme case, will the court stay a prosecution if amendment to Information is made before a trial (State v. Anthony Stephens (1998) 44 FLR 165). In this case, I am not convinced the prosecution has acted mala fides when they charged the applicant with new offences in the Information and then made amendment to it.

Immunity to Witnesses

[49] The applicant made lengthy submissions regarding the process used by FICAC to obtain plain statements from witnesses, Sanjana Mishra and Rohit Prasad, suggesting the witnesses implicated the applicant on the promise of immunity from prosecution. Counsel for the applicant referred to passages in the caution interviews of these two witnesses and their plain statements to point out contradictions in their statements.

[50] This ground for stay fails to comprehend the principles relating to accomplice evidence.

[51] A person who is suspected to have committed an offence or is a party to an offence is entitled to protection against self-incrimination if questioned by a person in authority. A person in authority can be the police, FICAC investigators or employers of a suspect. Whether Sanjana Mishra and Rohit Prasad are accomplices in law is a trial issue. But, if the investigators had reasonable grounds to believe that these two witnesses were also involved in the allegations faced by the applicant, then it was perfectly proper that they were cautioned before statements were obtained from them.

[52] After a suspect has given statement under caution, it is entirely the discretion of the prosecution to charge or not to charge. It is also entirely the discretion of the prosecution not to charge a suspect who is an accomplice but to make the suspect a witness. If the prosecution decides to call a suspect as a witness, it is only proper that a plain statement is obtained. It is for the prosecution to consider whether the suspect is to be given immunity in exchange for his or her evidence.

[53] The evidence of an accomplice who has been granted immunity from prosecution is admissible but the court approaches such evidence with caution before acting on it to convict.

[54] I do not find any improper conduct on behalf of the FICAC officers in the manner the statements of Sanjana Mishra and Rohit Prasad were obtained. Their statements were obtained within the boundaries of law. The veracity of their evidence can be tested by cross examination by the applicant and the evidence will only be acted upon subject to special rules of warning and corroboration designed to ensure a fair trial. This ground has not been made out at this stage of the proceedings.

Unavailable Witness

[55] It is a contention of the applicant that his trial will be unfair without the evidence of witness, Ateesh Chand, the Manager Finance, Airport Fiji Limited at the material times.

[56] While the prosecution accepts that Ateesh Chand has migrated overseas, they submit that attempts are being made to locate and call him as a witness at the trial.

[57] Ateesh Chand is relevant to the defence because they wish to question him to give an insight as to who was responsible for assigning the credit card expenses of the applicant under sundry expenses, which the prosecution alleges amount to false publications of accounts. The author of these alleged false accounts is Rohit Prasad. According to Rohit Prasad’s statement, he published the credit card expenses incurred by the applicant under the sundry expenses as a matter of past practices. Rohit Prasad does not suggest that the applicant had anything to do with this practice.

[58] Ateesh Chand’s statement does not say anything about the classification of credit card expenses of the applicant in the accounts of Ports Fiji Limited. One can only speculate that Ateesh Chand will give evidence relevant to the defence case. On the other hand, Ateesh Chand’s evidence can be a two edge sword. If called as a witness, Ateesh Chand’s evidence could implicate the applicant. The defence does not appear to refute this possibility. I am not satisfied that a fair trial cannot be held without Ateesh Chand’s evidence.

Issue Estoppel

[59] It is submitted by the applicant that the prosecution cannot be allowed to continue based on the doctrine of issue estoppel. It is settled law generally that the doctrine of issue estoppel does not operate in criminal proceedings in common law jurisdictions (Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, R v. Storey [1978] HCA 39; (1978) 140 CLR 364, Rogers v. The Queen [1994] HCA 42; (1994) 181 CLR 251). By parity of reasoning in these cases, there is no basis for introducing the doctrine of issue estoppel into the criminal law of the Fiji only to make the operation of criminal law more intricate.

Inappropriate Forum

[60] Under this head, it is submitted by the applicant that FICAC have brought the charges against him in an inappropriate forum and with improper motives. The applicant submits that any dispute between him and his former employer Airports Fiji Limited could be amicably resolved without invoking the jurisdiction of criminal courts.

[61] As I have said earlier, I do not find any evidence of manipulation of court process by FICAC in bringing the charges against the applicant. As regards the issue of appropriate forum, the applicant’s submission is based on misconceived view of criminal law. A civil wrong can give rise to criminal proceedings if the facts disclose a criminal offence or vice versa. Existence of civil remedies is not a bar to criminal prosecution provided criminal charges can be sustained on the facts of the case. I find no substance in this ground.

Result

[62] None of the grounds for stay of prosecution has been made out.

Order

[63] The application is refused.

Daniel Goundar
JUDGE

At Suva
1st April 2010

Solicitors:
Messrs. R. Patel Lawyers for the Applicant
Office of the Fiji Independent Commission Against Corruption for Respondent