Fiji Independent Commission Against Corruption v Devo [2010] FJHC 107; HAC177.2007 (8 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 177 of 2007

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

INOKE DEVO

Hearing: 3rd March – 6th April 2010
Summing Up: 8th April 2010

Counsel: Mr. S. Dissanayake & Ms E. Leweni for FICAC
Mr. R. Chaudhary for Accused

SUMMING UP

Madam Assessors and Gentleman Assessor

[1] It is now my duty to sum up to you. In summing up the case I will direct you on matters of law which you must accept and act upon. You must apply the law that I direct you on in this case. 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.

[2] If, in the course of this summing up, I express my opinion on the facts, or if I appear to do so, it is entirely a matter for you whether you accept what I say or form your own opinions.

[3] Both Counsel have made submissions to you at the end of the trial, about how you should find the facts of the case. That is their right. But you are not bound by closing submissions. If what they have said appeals to your own sense of judgment, then you may accept them. You are the representatives of the community at this trial and you must decide what really happened in this case.

[4] 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 I come to deliver my judgment.

[5] On the question of proof, I must direct you as a matter of law, that the prosecution bears the burden of proving the accused’s guilt. That burden remains throughout the trial upon the prosecution and never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty.

[6] The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused person before you can express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion of guilt if you are satisfied so that you are sure that he committed the offences alleged.

[7] You will note that on count 1 the accused is charged with others. The defence made submissions that why others are not in the dock with the accused. You must not speculate why others are not being prosecuted. You must confine your deliberations against the accused in the dock and not to draw any adverse inference one way or the other why others are not being prosecuted. The defence also made submissions that why certain witnesses were not called and why certain documents were not tendered. Again, you must not speculate why certain evidence was not led and you must not speculate on any evidence that has not been called. The defence further suggested that this is not a prosecution but a persecution by the Fiji Independent Commission Against Corruption. I direct you to reject any such notion as there is no legal basis to suggest that FICAC has not acted in good faith to bring these charges against the accused. Remember, charges are merely allegations and not evidence. Evidence is what you have heard in this court from the witnesses and the tendered documents.

[8] Your deliberations must be based solely and exclusively upon the evidence which you have heard in this court and upon nothing else. You must disregard anything you may have heard or read about the case outside this court. Your duty is to apply the law to the evidence you have heard. Apply the law to the facts dispassionately, without being sworn by emotions, or any customs or traditions.

[9] The Accused is charged with five counts of official corruption and four counts of abuse of office. Mr Dissanayake for the prosecution concedes that no evidence was led on count 4 (official corruption). I direct you that you express opinions of not guilty on count 4. However, you must consider the evidence on the remaining counts separately and you must not assume guilt on all counts simply because you have assumed guilt on one.

[10] The accused is charged with official corruption on counts 1, 2, 5 and 6. The offence of official corruption has several elements which the prosecution must prove beyond reasonable doubt. They are:

1. The Accused,

2. Being employed in the public service,

3. Corruptly received or asked for,

4. Any property or benefit for himself or for others,

5. On account for something already done or to be done afterwards,

6. In the discharge of his official duties.

[11] At the relevant times, the accused was the Commissioner Central. It is not in dispute that the accused was employed in the public service and by virtue of his position as the Commissioner Central he was also a member of the Central Division Liquor Tribunal. It is not in dispute that the accused issued and signed liquor licences after the Tribunal and other stakeholders such as the police have vetted the applications as part of his official duty.

[12] The focus on this case may and it is a matter for you end up on your assessment of what the word corruptly means. I am not going to explain that to you except to say that it does not mean dishonesty. It is a different word. It means purposefully doing an act which the law forbids.

[13] Let me give you an example. If I received money from an accused as an inducement to decide a case in favour of the accused in discharge of my official duty as a judge then I have done so corruptly. But if I have decided the case in favour of the accused based on the law and evidence and not that I have received any benefit from the accused, I have not acted corruptly.

[14] Whether the accused acted corruptly by receiving a benefit for himself or another in discharge of his duties as the Commissioner Central is a question of fact for you to consider.

[15] In respect of counts 3, 7, 8 and 9 the accused is charged with the offence of abuse office. In order to prove the offence of abuse of office, the prosecution must satisfy you beyond reasonable doubt of the following elements:

1. The accused was employed in the public service,

2. He did an arbitrary act,

3. He acted in abuse of the authority of his office,

4. The act was prejudicial to the rights of another person.

The first element is not in dispute. The remaining elements are in dispute.

[16] The second element is that the accused did an arbitrary act. In law, an arbitrary act is an unreasonable act, a despotic act, act which is not guided by rules and regulations but by the wishes of the accused. Let me give you an example. In a government department, the account officers are supposed to follow financial rules and regulations when it comes to raising payments on behalf of the government. If one accounts officer decided to ignore the financial rules and regulations when raising payments, that would be an arbitrary act. That is because the act is guided by the wishes of the accounts officer and not by proper financial regulations.

[17] The third element of the offence is that the act must be in abuse of the authority of office. When someone abuses the authority of his office, he uses his position for some illegitimate agenda, some reason which is not a proper reason according to institutional procedure. He acts in bad faith, for an improper motive to harm someone or show someone an advantage or favour. So, for instance, returning to the accounts officer, if he ignores the financial regulations for one particular company who has promised to financially support the building of his church, then the officer is abusing the authority of his office. To decide what is an abuse of office, you need to consider what motivated the accused to act in the way he did. If he had some improper motive or acted in bad faith and used his position to achieve that motive, then this element is proven. In order to understand what the accused had in his mind, you need to look at all the evidence and draw your own conclusions about his motives. His motives may lead you to decide whether he acted in abuse of office or not.

[18] The last element is that his act must have prejudiced the rights of another. When a person is prejudiced, his interests are put at a disadvantage. Generally, all government departments are expected to run in an accountable manner without any kind of abuse of resources in their control. This is because government departments are public offices and the State has a right to ensure that government resources are used for official purposes only.

[19] Whether the accused did an arbitrary act in abuse of authority of his office and thereby prejudiced the rights of the State as alleged in counts 3, 7 and 9 and the rights of Sachin Ram as alleged in count 8 is matter for you to consider having regard to all the evidence including what the accused said in his caution interview and in his evidence in court.

[20] The caution interview (P49) of the accused is in evidence. You may read the interview for yourselves. The prosecution contends that although you should not accept everything said by the accused in his interview nonetheless the interview contain certain admissions by the accused and that the prosecution further contends that those admissions are true.

[21] The defence case is that although the accused made these admissions he was forced to do so and therefore the admissions are not true.

[22] In deciding whether you can safely rely upon the admissions, you must decide two issues:

1. Did the accused in fact make the admissions? If you are not sure that he did, you should ignore them. If however, you are sure he did then:

2. Are you sure that the admissions are true? When deciding this, you should have regard to all the circumstances in which you find the admissions were or may have been made, and consider whether there were or may have been any circumstances which might cast doubt upon the reliability of those admissions. It is for you to assess what weight should be given to the admissions. If, for whatever reason you are not sure that the admissions are true, you must disregard them. If on the other hand, you are sure that they are true you may rely on them.

[23] On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide what has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed. However, there are some comments that I make on a few items of evidence.

[24] You recall Mr. Chaudhary cross-examined certain witnesses on the statements they made to the FICAC officers. As a matter of law, I must direct you that what a witness says on oath are evidence. What a witness says in his or her previous statement out of court is not evidence. However, previous statements are often used to challenge witnesses’ credibility and reliability because a previous inconsistent statement may indicate that a witness has told a different story previously and are therefore not reliable. Of course, in this case, the defence has not tendered any statement of the witnesses for you to consider their credibility on the basis of previous inconsistent statement.

[25] The only previous statement of a witness that has been tendered was by the prosecution. You recall Ashwin Kirpal. His statement is (P48). The prosecution was allowed to treat this witness as a "hostile witness" – a witness who had in effect changed sides, and to cross-examine on his previous statement (P48). Under cross-examination the witness adopted what he said in (P48) after giving evidence to the contrary. The witness said he could not remember the events. You may take into account any inconsistency and the witness’s explanations for it when considering his reliability as a witness. It is for you to judge the extent and importance of any inconsistency. If you conclude that there is a serious conflict between the account the witness gave in court and his previous statement (P48), you may reject his evidence altogether and not rely on anything said by him. However, if after careful consideration, you are sure that you can rely on all as part of what the witness said on previous occasion or when giving evidence, you take it into consideration in reaching your opinions.

[26] Another direction that I wish to give relates to the evidence of Nitesh Maharaj, Malakai Ravai and Alumita Raceva. You must approach the evidence of these witnesses with caution. The reason I give you this direction is not because I wish to convey to you any view of the credibility of these witnesses, but because in every case the law requires that I give you this direction.

[27] The reason you must approach these witnesses’ evidence with caution is that they may be an accomplice. An accomplice is someone who is a party to an offence. An accomplice may have an agenda or a reason to give evidence for the prosecution implicating the accused. The law says it is dangerous to convict on the evidence of an accomplice, unless it is corroborated, although you may do.

[28] Corroboration means some independent testimony which affects the accused by connecting him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only that the crime has been committed, but also the accused committed it. As a matter of law one accomplice cannot corroborate another accomplice. Nitesh Maharaj’s evidence is relevant to counts 1 and 2. You can accept that there is no corroboration of Nitesh Maharaj’s evidence. Malakai Ravai’s evidence is relevant to counts 5 and 6. You can accept that there is no corroboration of Malakai Ravai’s evidence. You may act upon the evidence of Nitesh and Malakai if you feel sure of the truth of their evidence bearing in mind the warning I have given.

[29] Alumita Raceva’s evidence is relevant to counts 3, 7 and 9. You can accept there is no corroboration of her evidence as far as counts 3 and 9 are concerned. You must feel sure of the truth of her evidence before acting on it. In the course of my summing up, I will direct you as to what evidence is capable of corroborating Alumita’s evidence on count 7. It is a matter for you to decide whether you accept the evidence as being corroboration in fact, and whether you accept her evidence as being credible and reliable.

[30] Finally, there is the evidence of the accused himself. I must remind you that when an accused person gives evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

[31] You will generally find that an accused gives an innocent explanation and one of three situations then arises:

1. You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.

2. Alternatively without necessarily believing him you may say ‘well that might be true’. If that is so, it means there is a reasonable doubt in your minds and so again your opinion must be not guilty.

3. The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation would then be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offence then the proper opinion would be guilty.

[32] I now remind you of the prosecution and defence cases. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel, that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

[33] In this case the prosecution and the defence have agreed to certain facts. You have been given copies of the Agreed Facts. The Agreed Facts are part of the evidence and you should accept these Agreed Facts as accurate and the truth. They are, of course, an important part of the case. The agreement of these facts has avoided the calling of a number of witnesses, and thereby saved a lot of court time.

The prosecution case

[34] The prosecution called a total of 22 witnesses.

[35] The Financial Controller of Toberua Island Resort, Nitesh Maharaj, gave evidence of his involvement in the renewal of liquor licence on behalf of the Resort. He said the liquor licence had to be renewed annually after it expired on 31st December. He spoke about an incident in 2005, when the Chairman of the Liquor Tribunal, Mr. David Balram, the Secretary to the Tribunal, Mr. Karawa, and the accused visited the Toberua Island to inspect the Resort after conducting a hearing on the Resort’s application for renewal of their liquor licence. After inspecting the facilities, Mr. Karawa asked if there was fish on the island. Nitesh Maharaj said there was no fish but made arrangement with a store to have fish available for the Tribunal members. The fish was handed to Mr. Karawa. Nitesh Maharaj saw Mr. Karawa distribute the fish to the members including the accused.

[36] The second incident Nitesh Maharaj spoke about is when the accused called and asked for fish and liquor. The accused told him that he was going to pay for the items later. Nitesh Maharaj ordered fish and liquor from Ram Singh & Sons Ltd. The order is shown in Ram Singh & Sons Ltd’s invoice number 7259 (P3). The relevant entry is dated 25 May 2007. The description of items read: 17.1kg donu, 4.8kg fish and 2 cartons beer. Nitesh Maharaj said Toberua Island Resort paid for these goods (P6). He said the accused was in a position of authority and he felt obliged to comply with his request. He billed the costs of the fish and beer to the accused (P5). He said the accused did not pay. Nitesh said he did not take any action because the accused signs the liquor licence. That year the licence was issued on 4 April 2007 (P7).

[37] Nitesh Maharaj was cross examined on his previous statement in which he said the accused asked for fish and beer on 12 January 2007. He said the 12 January 2007 was another incident and is referred in the Ram Singh & Sons Ltd’s invoice no. 7240 (P9) and the entry is dated 13 January 2007, although there is no reference to the accused in the invoice. He said he gave the goods because the accused asked for it. He said there was no issue with the renewal of the Resort’s liquor licence.

[38] The next witness was the owner of Ram Singh & Sons Ltd, Rajesh Kumar Singh. He recalls about two incidents when Nitesh Maharaj ordered fish and liquor for the Commissioner Central. He cannot recall the exact dates but this happened in 2007. In one occasion the goods were collected by a driver from the Commissioner Central’s Office. The driver came in a government vehicle. He said Toberua Island Resort was invoiced after the goods were supplied as directed by Nitesh Maharaj. He said the entry dated 13 January 2007 in the invoice no. 7240 (P9) is in his sister’s handwriting while the entry dated 25 May 2007 in the invoice no. 7259 (P3) is in his handwriting.

[39] Shaleshni Singh is the spouse of Rajesh Singh. She recalls a day in 2007 when Alumita who worked at Cakobau House came and collected fish and beer from their shop. She said they came in a government vehicle.

[40] Malakai Ravai is an employee of Foster’s Group Ltd. He spoke about two incidents of giving liquor to the Commissioner Central’s Office. The first request for liquor was made following approval of Occasional Licence dated 24 November 2006 (P13). (P13) is signed by the accused. Alumita called and asked for the liquor. After seeking approval from his Manager, Malakai advised Alumita to collect the liquor. Malakai said the accused and his driver came and picked up four cartons of Fiji Gold beer. Malakai spoke to the accused. The accused thanked Malakai for the beer. In cross-examination, Malakai said the accused told him he needed beer to wash down kava he consumed.

[41] The second request for liquor was made following approval of Occasional Licence dated 21 December 2006. Alumita made the request. She came with the driver Jagdish and collected three bottles of wine. On both occasions the liquor were collected in a government vehicle.

[42] Raijat Chaudhary owns a merchandise business and sells liquor. He said his liquor licences were processed by the Commissioner Central’s Office. He supplied a bottle of Gordons Gin to the Commissioner Central’s Office during the Christmas period in 2005. He cannot recall who made the request but he said a driver picked up the alcohol. He also supplied liquor to the Commissioner Central’s Office in 2006. It was picked up by someone from the Commissioner Central’s Office.

[43] Sudish Chand was the General Manager of Chillies Restaurant, Nausori. He said in 2004 Jagdish from the Commissioner Central’s Office collected waste food from the restaurant. A boy used to come with Jagdish. They came in a blue colour Pajero. The waste food was collected by 5pm.

[44] Litia Kelera was the supervisor at Three Kings Restaurant in 2004 and 2005. She supplied waste food to the accused. Litia said Sachin and Jagdish from the Commissioner Central’s Office used to collect waste food from the restaurant. At times they came in a white government vehicle or in the accused’s private blue vehicle to collect the waste food.

[45] Sachin Ram was a labourer at the Commissioner Central’s Office in 2004 and 2005. He said he used to go with the driver, Jagdish Chand to collect waste food from restaurants for the accused upon his instructions. His working hours were between 7am to 5pm. At times Sachin collected waste food before 5pm and at times after 5pm. Sachin said the waste food was collected in the official vehicle GM472. Collecting waste food was not part of his official duty.

[46] Permal Naidu worked as a messenger in the Commissioner Central’s Office from 2004 to 2007. Permal said in 2004 and 2005 he collected waste food from restaurants on instructions from the accused. He collected the waste food in the official vehicle GM472. He went with the driver Jagdish. Permal said they collected the waste food during official hours. Upon return to the office, the waste food was transferred into the accused’s private vehicle. Permal said on 2 December 2005 he collected liquor from two shops for the office Christmas party on the instructions of the accused. He said he went in GM472 to collect the liquor on the instruction of the accused. Upon return he left three cartons of beer in a tent and gave two bottles of gin to the accused for safe keeping.

[47] In June 2006, Permal said he went with Jagdish and Alumita and collected fish and two cartons of beer from Ram Singh Supermarket. They went in GM472.

[48] Ravindra Patel is the owner of Three Kings Restaurant. He said the accused made an arrangement with him to collect waste food from his restaurant. The waste food was collected during the official hours before 5pm by the driver.

[49] Brij Lal is the owner of the Hi-Way Bargain Centre. He had a liquor licence which was issued on 31 January 2007 (P29). In December 2005 he provided a carton of beer to the Commissioner Central’s Office. The beer was picked up by a driver in GM472.

[50] Farah Rahim from Golden Dragon Nightclub gave evidence. She said on 22 December 2006 a male driver or a messenger from the Commissioner Central’s Office collected two bottles of wine for their office Christmas party.

[51] Jaswant Lal is the owner of Lal’s Shopping Centre. He has a licence to sell liquor (P28). Jaswant provided a carton of beer to the Commissioner Central’s Office for their office Christmas party. The liquor was collected by Naidu from the Commissioner Central’s Office in a government vehicle.

[52] Jagdish Chand, the official driver of the vehicle GM472 at the Commissioner Central’s Office gave evidence. He said he received instructions from the accused and the office superintendent. As far as use of the official vehicle was concerned, he followed instructions of the accused and the office superintendent. He said he used GM472 to collect liquor for the office Christmas party from liquor outlets and nightclubs.

[53] Jagdish said the accused instructed him to collect liquor in GM472. He also collected half bag of fish and two cartons of beer from Ram Singh Shopping Centre in Nakelo. Naidu and Alumita accompanied him to collect the fish and beer. The fish and beer were collected in GM472 and upon return loaded into the accused’s private vehicle. During the election in 2006, he used GM472 to collect liquor from nightclubs. Sala and Jerry accompanied him. He took the liquor to the Tradewinds Hotel. The accused instructed him to leave the liquor in his room.

[54] Jagdish said he collected liquor from Malakai Ravai. Alumita told him to collect liquor. After collecting the liquor he dropped it at the accused’s home. On another occasion he collected liquor from Malakai and brought it to the office.

[55] Jagdish said in 2004 and 2005 he collected waste food from various eating outlets on the instruction of the accused. He used to collect the food in the Commissioner’s vehicle.

[56] Jerry Tokalauvere used to work at the Commissioner Central’s Office in 2005 and 2006. He accompanied the driver and Sala to collect liquor from various nightclubs and delivered them to the accused at Tradewinds Hotel.

[57] Sudesh Chand worked at the Commissioner Central’s Office in 2006. He said he collected liquor from various outlets in GM472 on Alumita’s direction for the office Christmas party in December 2006.

[58] Alumita Raceva worked with the accused at the Commissioner Central’s Office between 2004 and 2007. She said applications for liquor licences were filed at the Commissioner Central’s Office. The liquor licences were issued by the accused after the Liquor Tribunal hearing.

[59] On 22 December 2006, the office held a Christmas party organized by a committee. Alumita said she was instructed by the accused to collect liquor from the liquor outlets for their Christmas party. Alumita called the liquor outlets on the instructions of the accused and requested for liquor before sending the staff to collect the liquor.

[60] Sometime in 2007 Alumita accompanied Jagdish Chand and Permal Naidu in GM472 to collect fish and beer for the accused from Ram Singh’s Shop. She said the accused asked her to pick up the fish and beer for him.

[61] During the election in 2006, Alumita said the accused told her to arrange for collection of liquor for a cocktail party at Tradewinds Hotel. Alumita arranged for the collection of liquor from nightclubs as instructed by the accused. The accused directed Alumita to get Sala and Jerry to assist in the collection of liquor.

[62] Alumita said in 2006, she called Malakai Ravai on two occasions to ask for liquor on instructions of the accused.

[63] Salanieta Tikomaisainiai worked at the Commissioner Central’s Office in 2006. She said she was asked by Alumita to collect liquor from various nightclubs and take it to the accused at Tradewinds Hotel during the election period in 2006. The liquor was collected in GM472.

[64] Ashwin Kirpal is the General Manager of Purple Haze Nightclub. He provided liquor to the Commissioner Central’s Office in 2006 upon a request from Alumita.

[65] Pradeep Chand was an Accounts Officer at the Commissioner Central’s Office in 2005. He said the accused instructed him to accompany the driver to collect liquor from a shop for the office Christmas party in 2005. He said they collected the liquor in the government vehicle.

[66] Epeli Senitiri is the FICAC’s officer who cautioned interview the accused following his arrest from his home. Epeli said Aiyaz Ali was present during the interview but Aiyaz did not ask any questions. The questions were asked by Epeli. Epeli said Aiyaz Ali did not raise his voice during the interview. The accused was not threatened during the interview.

[67] In his interview the accused admitted receiving fish from Nitesh Maharaj after an inspection of Toberua Island Resort in 2005 but said the receiving of fish was never a consideration for renewing the Resort’s liquor licence (Q85). The accused said on another occasion in 2007, he asked for fish from Nitesh Maharaj and paid him for the fish (Q88). The accused admitted asking liquor from liquor outlets for the office Christmas party (Q120). He said the liquor was picked up in the official vehicle during official hours because he considered Christmas party as a semi official function (Q122). He admitted receiving a bottle of whisky and a carton of beer after the party (Q126). The accused admitted asking Alumita to solicit liquor for a cocktail party at Tradewinds Hotel in March 2006 (Q132) but his intention was noble (Q151). The accused admitted liquor was picked up from Malakai Ravai in his official vehicle GM472 (Q165) but the liquor was offered as complimentary drink and not requested by him (Q166). The accused said he accepted the liquor because occasionally he enjoyed a glass of beer (Q169). The accused admitted the liquor was for personal use (Q174). The accused admitted that he authorized the use of official vehicle to collect liquor from outlets for the office Christmas party (Q198). He said the runs were unofficial (Q199). He admitted he may have abused the authority of his office by authorizing the use of GM472 for unofficial runs to collect liquor (Q204). If you accept that the accused made this admission and that his admission is true, then his admission is capable of corroborating Alumita’s evidence on count 7. However, it is a matter for you to consider whether the admission of the accused corroborates Alumita’s evidence on count 7. The accused admitted directing his staff namely Sachin Ram to collect waste food to feed his pigs from restaurants during official hours (Q216). He said his threat to Sachin was a joke.

[68] Aiyaz Ali gave evidence. He denied raising his voice during the interview of the accused. He said he did not threaten the accused.

The defence case

[69] The defence called four witnesses including the accused.

[70] The accused said he was not informed that he was under arrest when picked up by the FICAC Officers from his residence. During his interview, Epeli and Aiyaz were cordial. Later in the afternoon, the accused said Aiyaz raised his voice during the interview. The accused said he felt threatened. He complained about the threat to Epeli (Qs 265 &266). He said he gave answers to please the FICAC officers.

[71] The accused said the liquor licences were issued after the Liquor Tribunal hearing. He did not have the sole authority to renew liquor licences. The licences were approved by the Tribunal. He signed the licences upon payment of fee by the applicants.

[72] The accused said he visited Toberua Island Resort with other members of the Tribunal. After inspection of the Resort, all members were given fish and coconuts by Nitesh Maharaj. The arrangement for fish was made by the Divisional Secretary. He did not ask for fish.

[73] On another occasion, the accused said he asked Nitesh Maharaj for fish and beer. The accused said he had a function at his home. The accused said he gave $150.00 cash to Nitesh Maharaj. He never received the invoice (P5) from Nitesh Maharaj. He said Nitesh Maharaj did not call him to follow up for any payment.

[74] In March 2006, the accused said he asked Alumita to organize for donations for a cocktail for the participants of an election workshop. He did not instruct any staff to collect liquor or to use the government vehicle.

[75] The accused said he was not aware of any donations sought from Fosters Group. He knows Malakai Ravai. The accused said he did not ask Malakai Ravai liquor on account of issuing licences. He did not authorize collection of liquor in the official government vehicle for any purpose.

[76] The accused said he did not instruct any staff to collect waste food for him. He did not authorize the use of government vehicle for his personal runs.

[77] The next witness was Randir Prasad. He is a police officer who sought donation of refreshments from business houses for a community policing function held in Nausori that was attended by members of the public.

[78] The next defence witness was Ilisapeci Natau. She asked the accused to assist in arranging for a cocktail for the participants of an election workshop held at the Tradewinds Convention Centre in March 2006.

[79] The fourth defence witness was Maciu Tiko. He was a relieving messenger and cleaner at the Commissioner Central’s Office. He recalls Alumita drinking wine in an office Christmas party.

Analysis

[80] On count 1, the prosecution says that it was an official duty of the accused to renew liquor licences by virtue of his position as the Commissioner Central. In the course of discharging his official duty, the accused received a bundle of fish from Nitesh Maharaj of Toberua Island Resort. The application for renewal of liquor licence of Toberua Island Resort was pending when the accused received the fish. After the fish was received by the accused, the liquor licence of Toberua Island was renewed, signed by the accused and issued. The prosecution says the accused acted corruptly.

[81] The defence does not dispute that the accused received a bundle of fish from Nitesh Maharaj. The defence says all members of the Liquor Tribunal were given fish after the inspection of Toberua Island Resort. The accused did not ask for the fish. The arrangement for the fish was made by the Divisional Secretary. The defence says the accused did not receive the fish on account of him renewing the liquor licence of Toberua Island Resort because the approval of licence was granted by the Liquor Tribunal and not the accused. The defence says the accused did not act corruptly.

[82] On count 2, the prosecution says that the accused asked for fish and beer from Nitesh Maharaj of Toberua Island Resort on account of him having renewed the liquor licence of Toberua Island Resort, which was an official duty of the accused. The prosecution says the request by the accused was made in January 2007 and in the same month fish and beer was collected from Ram Singh Shop as arranged by Nitesh Maharaj. Following the collection of fish and beer as arranged, on 4 April 2007, the accused signed the renewal of liquor licence for Toberua Island Resort. The prosecution says the accused acted corruptly.

[83] The defence does not dispute that the accused asked Nitesh Maharaj for fish and beer. The defence says the accused paid Nitesh Maharaj for the fish and beer. The defence says the accused did not ask for fish and beer on account of renewing the liquor licence of Toberua Island Resort. The defence says the accused did not act corruptly.

[84] On count 3, the prosecution says that the accused authorized his staff members to use the official government vehicle GM472 to collect liquor from liquor outlets for a cocktail party at Tradewinds Hotel. The prosecution says the authorization of the use of official vehicle and direction to the staff to collect liquor during official hours of work was an unreasonable and despotic act by the accused. The prosecution says that the act of the accused to authorize collection of liquor in the official government vehicle by his staff members was in abuse of the authority of his office as the Commissioner Central.

[85] The prosecution says that the act of the accused prejudiced the rights of the State because the accused used official resources for a cocktail party which was not an official function.

[86] The defence says that the accused did not authorize any use of government vehicle and staff to collect liquor for him. The defence says the accused only requested his staff Alumita to assist in seeking donations for the cocktail party. The defence says the accused did not act unreasonably and that he did not abuse the authority of his office to prejudice any rights of the State.

[87] On count 4, I remind you to render opinions of not guilty.

[88] On count 5, the prosecution says the accused by virtue of his position as the Commissioner Central was responsible for issuance of Occasional Liquor Licences upon applications made to his office. The prosecution says the accused through his staff Alumita asked Malakai Ravai of Foster’s Group for liquor. The prosecution says that the accused knew Foster’s Group Ltd. had applied for liquor licence in the month of November 2006. On 24 November 2006 the accused issued an Occasional Liquor Licence for Foster’s Group Ltd. The prosecution says the accused asked for liquor from Malakai Ravai on account of issuing an Occasional Liquor Licence to Foster’s Group Ltd. The prosecution says the accused acted corruptly.

[89] The defence says the accused did not ask for any liquor from Malakai Ravai. The defence says that the liquor was freely given by Malakai and not on account of issuing an Occasional Liquor Licence to Foster’s Group Ltd. The accused says he did not act corruptly.

[90] On count 6, the prosecution says the accused through Alumita asked liquor from Malakai Ravai. Malakai gave three bottles of wine. The liquor was collected by the driver Jagdish and Alumita. They collected the liquor in the Commissioner Central’s official vehicle. The prosecution says the accused knew Foster’s Group had applied for Occasional Licence when he directed Alumita to ask for liquor from Malakai Ravai. The prosecution says on 21 December 2006 the accused signed and issued an Occasional Licence for Foster’s Group. The prosecution says the accused acted corruptly.

[91] The defence says that the accused did not ask for any liquor from Malakai Ravai. The accused says the liquor was offered as donations for the office Christmas party. He says he did not ask for any liquor on account of him issuing an Occasional Licence to Foster’s Group in the discharge of his official duties. The defence says the accused did not act corruptly.

[92] On count 7, the prosecution says the accused directed his staff members to collect liquor from various liquor outlets in the official vehicle. The prosecution says the accused admitted in his interview that he directed his staff to collect liquor in the official vehicle. The prosecution says the accused acted in an unreasonable and despotic manner contrary to government rules that government resources should be used for official purposes only. The prosecution says the accused acted in the abuse of authority of his office as the Commissioner Central and that his action prejudiced the rights of the State when the government resources were used for unofficial purposes.

[93] The defence says the accused did not authorize any of his staff to use the official vehicle to collect liquor. The accused says collection of liquor was arranged by Alumita. The defence says the admission of the accused in his interview is not true because it was obtained by way of threat by FICAC officers. The accused says he did not abuse the authority of his office as the Commissioner Central and therefore he did not prejudice any rights of the State.

[94] On count 8, the prosecution says that the accused used his position as the Commissioner Central to force his staff Sachin Ram to collect waste food from restaurants to feed his pigs. The prosecution says the accused threatened Sachin Ram if he refused to follow his directive. The prosecution says the accused acted unreasonably by making Sachin Ram do unofficial work for the accused and that the act of the accused was in abuse of the authority of his office as the Commissioner Central and prejudicial to the rights of Sachin Ram.

[95] The defence says the accused did not force Sachin Ram to collect waste food for him during official working hours. The accused says Sachin Ram assisted him in collecting food. The accused says he only swore at Sachin in a joking manner. The defence says the accused did not act in an unreasonable manner. The defence says the accused did not abuse the authority of his office to prejudice the rights of Sachin Ram.

[96] On count 9, the prosecution says the accused authorized the use of official vehicle and his staff to collect liquor from various liquor outlets for the office Christmas party in December 2006. The prosecution says the accused acted in an unreasonable and despotic manner in abuse of the authority of his office as the Commissioner Central. The prosecution says the accused prejudiced the rights of the State.

[97] The defence says the accused did not authorize the use of official government vehicle and his staff to collect liquor during the official working hours. The defence says the accused did not act unreasonably at all. He did not abuse the authority of his office and he did not prejudice the rights of the State.

[98] Which version of the facts to accept is entirely a matter for you? Remember to consider each count separately. The question on each count is whether you are satisfied of the guilt of the accused beyond reasonable doubt. If you have a reasonable doubt about his guilt, you must find him not guilty. Your opinions on each count are either guilty or not guilty. You may retire now. Once you have reached your opinions, please advise the court clerk, and the court will re-convene to receive your opinions.

Daniel Goundar
JUDGE

At Suva
8th April 2010

Solicitors:
Office of the Fiji Independent Commission Against Corruption for Prosecution
Messrs. Gordon & Chaudhary for Accused