State v Prasad [2010] FJHC 203; HAC073.2006S (10 June 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 073 OF 2006S

STATE

vs

ROGER RAJ PRASAD

Counsels : Mr. J. Daurewa for the State
Mr. A. Singh for the Accused

Hearing : 31st May, 1st, 2nd, 3rd, 4th and 7th June 2010
Summing Up : 10th June, 2010

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION
     

7. The accused, Roger Raj Prasad, was charged with "false pretences", contrary to section 308 and 309(b)(i) of the Penal Code, Chapter 17. It was alleged that, between the 20th and 21st June 2001, at Lautoka in the Western Division, with intent to defraud, the accused fraudulently caused Samuela Raiqavi, to execute a valuable security, namely Australian & New Zealand Bank cheque number 000206 in the amount of Twenty-Five Thousand dollars [$25,000], made out to "cash", and endorsed "please pay cash", by falsely pretending that, this amount was the correct amount due to be paid.

D. THE MAIN ISSUE

8. The following question therefore arises for your determination:

i) Did Roger Raj Prasad, between the 20th and 21st June 2001, at Lautoka in the Western Division, with intent to defraud, fraudulently caused Samuela Raiqavi, to execute a valuable security, namely Australian & New Zealand Bank cheque number 000206, in the amount of Twenty-Five Thousand dollars [$25,000], made out to "cash", and endorsed "please pay cash", by falsely pretending that this amount was the correct amount due to be paid?

E. THE OFFENCE AND IT’S ELEMENT

9. Section 308 of the Penal Code, Chapter 17, defines "false pretence" as follows:

(i) Any representation,

(ii) made by words, writing or conduct,

(iii) of a matter of fact,

(iv) either past or present,

(v) which representation is false in fact,

(vi) and which that person making it,

(vii) knows to be false, or

(viii) does not believe to be true,

(ix) is a false pretence.

10. For the accused to be found guilty of "false pretence", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused who

(ii) by any false pretence

(iii) with intent to defraud

(iv) any other person

(v) fraudulently causes or

(vi) induces

(vii) any other person

(viii) to execute

(ix) the whole, or

(x) any part

(xi) of any valuable security

(xii) is guilty of a misdemeanor

11. In the Oxford Advanced Learner’s Dictionary (6th edition, 2000) "defraud" is taken to mean "to get money illegally from a person or organization by tricking them"; "fraudulent" is taken to mean "intended to deceive somebody, usually in order to make money illegally"; and "execute", in law, is taken to mean "to make a document legally valid", or "to perform a duty", or "to do a piece of work".

12. By virtue of section 4 of the Penal Code, "valuable security" includes "any authority or request in writing for the payment of money", and this included bank cheques.

F. THE PROSECUTION’S CASE

13. The prosecution’s case was simple. Roger Raj Prasad, in June 2001, that is, approximately 9 years ago, was the manager of Heath Lambert Limited (ie. HLL). HLL was an insurance broker and administered welfare health schemes for group clients. At the time, one of its client was the Public Employees Union. It was their role to enrol new members, ensure deduction were made from their pay, hold on to the money on trust for the union, process medical claims, liaise with doctors and pharmacies, organize invoices and monthly board meeting papers, get board approval for the payment of member’s medical claims etc., and make payments accordingly. HLL kept and administered the Public Employees Union Welfare Scheme’s cheques.

14. This case arose out of an unpaid pharmacy bill, for a member, Petero Panapasa, that was owed to Universal Medical and Surgical Care Limited, of Auckland, New Zealand.NZ $50.60 was owed. To cut the story short, HLL through its staff, acted to see that the bill was paid as soon as possible. The claim from New Zealand was dated 25th January 2001. According to the prosecution, the claim was processed in the normal way, invoice and board papers were prepared and submitted to the Board, which approved the payments. The board meeting was attended by the three signatories to the Union’s cheques, that is, Filimone Banuve (Suva), Samuela Raiqavi (Lautoka) and Govind Swami (Labasa). Two of the above signatories are required on the cheques, for the same to be honoured by the Bank.

15. According to the prosecution, Public Employees Union Welfare Scheme cheque No. 000206 was being prepared for the payment of the NZ $50.60 pharmacy bill mentioned above. According to the prosecution, cheque 206, when issued out of HLL’s office, was blank. According to the prosecution, cheque 206 was issued to the accused at Suva, and he took the same to Lautoka, to be signed by Samuela Raiqavi, the Western based cheque signatory. According to the prosecution, the accused managed to convince Samuela Raiqavi to sign cheque 206, and also sign the "please pay cash" endorsement on the top left corner of the cheque. On 21st June 2001, according to the prosecution, the accused went to see Filimone Banuve, at his residence in Tamavua. Mr. Banuve was the Suva signatory to the Union’s cheque 206. According to the prosecution, the accused told Mr. Banuve $25,000 had to be paid to a cardiologist in New Zealand on behalf of a Union member. He then signed cheque 206, and also signed the "please pay cash" endorsement on the top left corner of the cheque. The ANZ Bank honoured cheque 206 that same day, that is, 21st June 2001, and $25,000 cash was paid out to an unknown person.

16. As shown by the cheque butt on cheque 206, the same was for the payment of NZ $50.60 for pharmacy bills payable on the account of a Union member. That bill had been outstanding since January 2001. According to the prosecution, the accused well knew the above, and by falsely pretending that $25,000 was needed for a members’ overseas medical evacuation, and with an intention to defraud the Public Employees Union Welfare Scheme, fraudulently caused Samuela Raiqavi, as a signatory, to sign cheque 206 and sign the "please pay cash" endorsement, knowing very well that $25,000 was not the correct amount due be paid. That was the case for the prosecution.

G. THE ACCUSED’S CASE

17. After finding a prima facie case against the accused, at the end of the prosecution’s case, the two options available to him were offered to him, that is, he may remain silent, or give a sworn statement, in his defence. He was also offered the right to call witnesses, in his defence. However, the accused, through his counsel, choose to remain silent, and called no witness. That was his right. The burden to prove the accused’s guilt beyond reasonable doubt stays with the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence. It is the State, through the prosecution, that made the present allegation against the accused, and the burden to prove that allegation beyond reasonable doubt, lies on the prosecution throughout the trial. You must therefore, as assessors and judges of facts, impute nothing negative on the accused’s desire to exercise his right to remain silent, and call no witness. That, put simply, was his right.

18. However, all is not lost, in discerning the accused’s position, in the present allegation against him. He made his position clear, when he was caution interviewed by the police, at Nabua Police Station, on 28 December 2004. The police asked him 79 questions and he gave 79 answers. He denied the allegation against him. Please, refer to Questions 27, 28, 31, 32, 34, 56, 57, 59, 60, 61, 62, 65, 66, 69, 70 and 74, and their answers. The accused’s police caution interview statements, were tendered as Prosecution Exhibit No. 5. In a nutshell, the accused simply denied the allegation against him. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

19. In order to understand the problem concerning the Public Employees Union Welfare Scheme cheque No. 000206, you need to understand the office environment in which cheque 000206 eminated from. Heath Lambert Limited (HLL) was responsible in managing the Public Employees Union Welfare Scheme funds. It enrolled members, collected their deductions, kept the member’s fund on trust, and processed all medical claims and payments. All payments must be approved by the monthly board meeting, when the 3 cheque signatories were present. In June 2001, the three cheque signatories were Filimone Banuve (Suva), Samuela Raiqavi (Lautoka) and Govind Swami (Labasa). Any two signatories could sign the scheme’s cheque for the Bank to honour the same. When medical bills were received, the invoices and recommendations were sent to the board, and if approved, HLL staff prepare the cheques for payment of the bills.

20. Concerning cheque 206, the State’s evidence were as follows. As far as the Public Employees Union Welfare Scheme cheque book was concerned, according to Viraaj Kantilal (PW6), acting Manager when the accused left HLL, it was always in the custody of Emali Lal (PW7). Emali Lal said, it was her job to look after the cheque book. She had custody of it. She prepared the cheques for the signatories to sign at the monthly board meetings. According to Emali Lal, the accused instructed her to prepare cheque 206, and he would come and pick it up later, on 20th June 2001. However, when she prepared it, the cheque was left blank. She then gave the blank cheque 206 to Samu Tunidau (PW1) on 20th June 2001.

21. Although Emali had said, she "prepared" cheque 206, the butt of the cheque 206 was written in by Samu Tunidau (PW1). One would expect the one preparing the cheque to also fill in the cheque butt. But in this case, Emali Lal "prepared" cheque 206, while Samu Tunidau filled in the cheque butt. According to Emali, she never gave cheque 206 directly to the accused. According to Emali, Samu Tunidau was sitting in a vehicle with the accused. Emali also said, the accused was on leave from 11th June 2001 to 25th June 2001. Emali said, she gave the whole cheque book to Samu Tunidau, and she got it back the same day or the day after. Samu said, he got the cheque, filled in the cheque butt, and gave the same to the accused. Both Emali and Samu said, cheque 206 was left blank. When the accused was caution interviewed by police on 28th December 2004, he denied what Emali Lal and Samu Tunidau said about cheque 206.

22. One thing can be discerned from the evidence of Emali Lal and Samu Tunidau, the schemes’ cheques were left blank when it was prepared. According to Samu Tunidau, it was left to the person who takes it to the bank to oversee the filling in of the amount required given "the fluctuation in the exchange rates", and that person was authorized to ask for special rates. There was no despatch register produced in evidence, to show, who cashed what cheque at the bank, on what date and what time, and his or her name and signature noted in the same. Obviously there was laxity in the handling of cheques at the Heath Lambert. Even Emali Lal (PW7) and Viraaj Kantilal (PW6) admitted that there was laxity at Heath Lambert in their handling of their financial duties.

23. From that background, the present allegation arose against the accused. The State alleged, the accused took cheque 206 to Samuela Raiqavi in Lautoka to sign. According to the State, the accused knew that the amount to be filled in cheque 206 was the equivalent of NZ$50.60 for the pharmacy bills for Petero Panapasa. With intend to defraud the Public Employees Union Welfare Scheme of $25,000, the State alleged, the accused fraudulently caused Samuela Raiqavi to sign cheque 206. As previously stated, the prosecution must prove the above allegation against the accused beyond reasonable doubt. It must prove the above allegation to such an extent that makes you sure that the accused was guilty as charged. If there was any reasonable doubt on the accused’s guilt, or you are not sure of his guilt, then it’s your duty, as assessors and judges of fact, to give the benefit of that doubt to the accused and acquit him accordingly.

24. In order to prove its allegation, the State relied primarily on Samuela Raiqavi’s (PW2) evidence. According to the particulars of offence, he was the person who the accused was alleged to have fraudulently caused to sign cheque 206, on 20th June 2001. However, in his evidence, Samuela Raiqavi said, he signed cheque 206 on 20th June 2001, at Lautoka in the Western Division, not as a result of any fraudulent act on the part of the accused, but by virtue of the authority of the Public Employees Union Welfare Scheme board.

25. He said, he was a board member from 1999 to 2001, and was one of the three signatories to the Union Welfare Scheme cheques. He said, they sign cheques for payments of medical and pharmacial services to Union members, including overseas medical evacuation. When cross-examined on cheque 206, Mr. Raiqavi said, "...Approval was made at a previous board meeting for a member’s medical evacuation. I was carrying out the instruction of the board. At the time, it was proper for me to sign the cheque as the board has approved it. This is the first time for me to sign a blank cheque..."

26. Mr. Raiqavi continued, "...I accept if anything goes wrong with the cheque, I’m partly responsible, because I have being entrusted with the authority to sign it. The board has given its authority. The directors present were F. Banuve, G. Swami, D. Kautoga, the Nausori Branch President. I was carrying out the intention of the board..." The result of this evidence from Samuela Raiqavi (PW2) showed that he was not fraudulently led by the accused, on 20th June 2001, to sign cheque 206. On this evidence alone, the State’s allegation against the accused cannot stand. Samuela Raiqavi, in his own words, said he was signing cheque 206 on 20th June 2001, at Lautoka in the Western Division, not as a result of the accused’s alleged fraudulent act, but as a result of the board’s prior approval. An essential ingredient of the law of "false pretence" is therefore missing. The State cannot prove beyond reasonable doubt, through the evidence of Samuela Raiqavi, that he was fraudulently induced into signing cheque 206, by the accused. The State’s own witness, ie. Samuela Raiqavi, has through cross-examination, became an important defence witness.

27. To make matters worse for the State, the accused, in his police caution interview statements, dated 28th December 2004, denied the allegations against him. Please refer to Questions 27, 28, 31, 32, 34, 56, 57, 59, 60, 61, 62, 65, 66, 69, 70 and 74, and their answers. The caution interview statement, was tendered as Prosecution Exhibit No. 5, and is part of the evidence. The accused denied going to Lautoka on 20th June 2001 to see Samuela Raiqavi. He denied ever fraudulently inducing Raiqavi to sign cheque 206.

28. Even the final prosecution witness, Assistant Superintendent of Police Mr. Puran Lal, a police officer of 25 years standing said, a lot of questions in the case remained unanswered. Mr. Samuela Raiqavi said, he signed cheque 206 on 20th June 2001, with Mr. F. Banuve’s signature already on cheque 206. Yet, through Puran Lal’s evidence, it was found that Mr. F. Banuve signed cheque 206 on 21st June 2001. How can Banuve’s signature be on cheque 206 on 20th June 2001, when he signed on the 21st June 2001. Were the two signatories hiding something? Mr. Puran Lal said, this discrepancy should have being investigated and an answer found.

29. Again, when Mr. Lal was cross-examined, it was put to him that the ANZ Bank teller who gave out the $25,000 cash on 21st June 2001, could identify the person by a police photo identification. That would have resolved a lot of questions in this case. Mr. Lal agreed the police should have investigated the ANZ Bank teller’s statement, provide a photo identification to her, and find out who actually cashed the $25,000 cheque 206. He also said, the police should investigate the person who cashes the Union cheque most of the times.

30. So in a sense, given Mr. Samuela Raiqavi’s (PW2) statements, the accused’s denial in his police caution interview statement, and Assistant Superintendent of Police Puran Lal’s comment that a lot of questions remained unanswered in the case, do you think, as assessors and judges of fact, that the prosecution has proven its case against the accused beyond reasonable doubt?

31. You must consider all the evidence together. You have heard the evidence of all the prosecution witnesses. You have heard them give evidence. You observed their demeanour in the courtroom while giving evidence. How did they respond when cross-examined and re-examined? Were they forthright in their answers, or were they evasive? Were they argumentative? How did they dress to court and how did they behave generally in the courtroom? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which witness’s evidence, or part of a witness’s evidence is reliable and therefore to accept, and which is unreliable and therefore to reject, in your deliberations.

I. SUMMARY

32. Remember, it is the prosecution’s duty to prove the accused’s guilt beyond reasonable doubt. They have called 10 witnesses to persuade you to accept their version of events. The accused had chosen to remain silent. That is his right, because the burden to prove his guilt beyond reasonable doubt, lies on the prosecution throughout the trial. It never shifts to him. He is not required to prove his innocence. However, consider his police caution interview statements, where he denied the allegations against him.

33. If you are satisfied beyond reasonable doubt of the accused’s guilt, and you are sure of it, you must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused’s guilt, and you are not sure of it, you must find the accused not guilty as charged.

34. Your possible verdict is as follows:

(i) Guilty or Not Guilty

35. You may retire to deliberate. Once you have reached your decisions, please advise our clerks, so that we can reconvene, to receive them.

Salesi Temo
ACTING JUDGE

AT Suva
10th June 2010