State v Nand [2010] FJHC 31; HAC108.2007 (29 January 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 108 OF 2007

STATE

V

SATYA NAND
s/o RAM CHAND

Counsels: Ms. A. Tuiketei for the State Mr. M. Raza for the Accused
Hearings: 20th, 21st, 25th, 26th and 27th January, 2010
Summing Up: 29th January, 2010

SUMMING UP

A. 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. Both Counsels have made submissions to you, about how you should find the facts of the case. That is in accordance with their duties as State and Defence Counsels. 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.

B. 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 Police Department. Your duty is to find the facts based on the evidence, and to apply the law to those facts.

C. THE INFORMATION

7. The accused, Satya Nand, is charged with three counts; first, "larceny by servant", contrary to section 274 (b)(i) of the Penal Code, chapter 17; second, "attempted larceny," contrary to sections 274(b)(i) and 382 of the Penal Code, and third, "forgery", contrary to section 336(3)(g) of the Penal Code.

8. On the first count, it was alleged that between the 7th January 2003 and 29th January 2004, at Suva in the Central Division, whilst being employed as an exhibit writer in the Fiji Police Force, stole from the exhibit room at Central Police Station, the sum of $22,900. On the second count, it was alleged that between the 7th January 2003 and 29th January 2004, at Suva in the Central Division, whilst being employed as an exhibit writer in the Fiji Police Force, attempted to steal from the exhibit room at Central Police Station, the sum of $61,000. On the third count, it was alleged that on 19th June 2003, at Suva in the Central Division, with intend to defraud, forged the signature of Vijendra Singh on the exhibit register, belonging to the Fiji Police Force.

D. THE MAIN ISSUES

9. The following issues arises for determination:

(i) Did Satya Nand, while employed as a police exhibit writer, steal $22,900 from the Central Police Station exhibit room, between the 7th January 2003 and 29th January 2004?

(ii) Did Satya Nand, while employed as a police exhibit writer, attempted to steal $61,000 from the Central Police Station exhibit room, between the 7th January 2003 and 29th January 2004?

(iii) Did Satya Nand, on 19th June 2003, at Suva in the Central Division, with intent to defraud, forged the signature of Vijendra Singh on the exhibit register, which is the property of the Fiji Police Force?

E. THE OFFENCE AND ITS ELEMENTS

10. For the accused to be found guilty of "larceny by servant", on count No.1, the prosecution must prove beyond reasonable doubt the following elements:

(i) The accused,

(ii) whilst being employed in the public service of the State,

(iii) steals

(iv) any money

(v) in the possession of the State

11. In law, stealing is the act of taking away someone’s property or properties, without his permission, and with an intention to permanently deprive the owner, of the ownership of that property or properties. State, as mentioned above, means any Department or organ of the State, for example, as in this case, the Police Force.

12. On count No.2, for the accused to be found guilty of "attempted larceny", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) attempted to

(iii) steal

(iv) any money

(v) in the possession of the State.

13. In law, attempt is defined as follows. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifest his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. It is immaterial whether the offender does all that’s necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention (section 380, Penal Code). Stealing has the same meaning ascribed to it in paragraph 11.

14. On count No.3, for the accused to be found guilty of "forgery", the prosecution must prove beyond reasonable doubt the following elements:

(i) the accused

(ii) with intent to defraud or deceive

(iii) forged

(iv) the signature of Vijendra Singh

(v) on the exhibit register, belonging to the Fiji Police Force, and documentary evidence by law.

In law, forgery is the making of a false document in order that it may be used as genuine.

F. THE PROSECUTION’S CASE

15. It began as follows. On 6th December 2002, an Amourguard Truck carrying ANZ Bank cash of $725,000, was robbed at the Village Six Cinema, by some armed robbers. The truck was delivering cash to an ATM machine. During the robbery, $525,000 was stolen, and $200, 00 was left behind in the truck. The matter was reported to Central Police Station, and a major investigation was carried out.

16. The $200,000 in the truck was returned to ANZ. A suspect was later arrested. $83,900 cash was seized from the suspect’s house. This was believed to have being stolen from the Amourguard Truck. On 4th January 2003, the $83,900 cash was put in the Central Police Station exhibit room, as evidence against the suspect’s future trial.

17. On 4th January 2003, Constable Abhay Nand, was the exhibit writer. It was his duty to care for and record the movements of the exhibits. He received the $83,900 exhibit, counted it, recorded it in the exhibit register, packed it in two paper bags and sealed the same with wax. In May 2003, Constable Abhay Nand handed over the role of exhibit writer to the accused. The $83,900 exhibit was still in the exhibit room.

18. On 19th June 2003, the accused, as the police exhibit writer, made some written entries in the exhibit register serial number 4/03. In his first entry on column 8, headed "How disposed of station officer’s initials and date", he wrote "$28,000 cash was taken by Vijendra Singh". On column 9, headed "number and date of receipt or signature of recipient", was written a signature of V. Singh, dated 19.06.03. The accused said, he witnessed the entries made above.

19. On the accused’s second entry in the exhibit register, in column 8, he wrote "cash of $55,900 was taken by Vijendra Singh and he dated it 19.6.03". On column 9, the signature of a "V. Singh" and dated 19.6.03" was written on it. The accused said, he witnessed the entries made above.

20. In January 2004, the police audited the exhibit room. Out of the $83,900 exhibit in the exhibit room, $22,900 was missing. Only $61,000 cash was in the exhibit room. One of the sealed money paper bags had been tampered with. The entries in the exhibit register were not done properly, and as a result, it raised numerous suspicions. The entries were not carried out to the letter. There were no proper reasons for the purported release of the money mentioned in column 8. The release was not witnessed by an Assistant Superintendent of Police, or an officer of a higher rank, as required. The police checked with Mr. V. Singh of ANZ Bank, and he said he didn’t receive any $22,900 from the accused, on 19.6.03. According to Mr. V. Singh, the accused admitted to him on 30th January 2004 that he took the $22,900.

21. According to the prosecution, the accused stole the $22,900 from the exhibit room, and was planning to steal the $61,000, when the matter was discovered. The prosecution also alleged that, the accused forged the signature of the Mr. Vijendra Singh on the exhibit register, to assist him in stealing the $22,900, and to aid in his plans to steal the remaining $61,000. According to the prosecution, he was paid to care for the exhibits, but instead stole $22,900, and was planning to steal the next $61,000. That was the case for the prosecution.

G. THE ACCUSED’S CASE

22. The accused gave evidence on oath. He was a police officer with vast experience. He joined the Police Force in 1976 and was discharged from the Police on 9th April 2009. In 33 years in the Police, he rose to the rank of corporal. He worked in various branches of the police, ie. uniform, traffic, crime, prosecution and as an exhibit writer.

23. He admitted he was the exhibit writer, in this case, at the material time. He admitted he made entries in the exhibit register in Serial No. 4/03, and filled in both columns 8 and 10. He totally denied the allegations against him. He said, Mr. Vijendra Singh of ANZ Bank took the $22,900 from him in the exhibit room at Central Police Station, and he signed column 9 of the exhibit register on 19th June 2003. He admitted he witnessed the signatures in column 10. He also admitted he released the $22,900 without the presence of a senior police officer. He said, he was instructed to release the money by his superior, Inspector Tevita Lesu.

24. Although, now Assistant Commissioner of Police, Tevita Lesu denied giving the accused the necessary authority to release any money to anyone. The accused said, Mr. Lesu was wrong. He said the same for Mr. Vijendra Singh, who denied taking $22,900 from the accused, on 19th June 2003, and denied signing "V. Singh" in column 9, Serial No. 4/03, in the exhibit register. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

25. In this case, when considering the evidence of the eight prosecution witnesses, and the accused’s evidence, the following material facts appeared not disputed:

(i) on 6th December, 2002, an armourguard truck carrying ANZ $725,000 cash for the ATM, was robbed by armed elements at Village Six Cinema, and $525,000 was stolen. $200,00 was left in the truck, and was later returned by police to ANZ Bank.

(ii) A major police investigation was carried out, and one suspect’s house was raided and searched by police, and $83,900 cash recovered. This was put in the exhibit room at Central Police Station on 4th January 2003.

(iii) On 4th January 2003, then Constable Abhay Nand was the exhibit writer at Central Police Station. His job was to care for the exhibits, and record its movements in the exhibit register. Constable Nand counted the $83,900, and packed them in two paper bags and sealed the same with wax.

(iv) In May 2003, then Constable Abhay Nand handed over the role of exhibit writer to the accused. The accused, in his new role, accepted the $83,900, which was in the exhibit room.

(v) On 19th June 2003, the accused, as exhibit writer, made some entries in the exhibit register [Prosecution Exhibit No. 7] in serial no. 4/03. The register contains a copy of the police search list, which contain the serial nos. of the notes amounting to $83,900. The list are divided into two, ie., one containing $28,000, and one containing $55,900.

(vi) In Serial No. 4/03, there are 3 columns of 8, 9 and 10. Column 8 is headed "How disposed of, station officer’s initials and date". The accused admitted making two entries in column 8. In one, he wrote "$28,000 cash was taken by Vijendra Singh of audit and compliance ANZ Bank 7th Floor on 19.6.03". In another, he wrote "cash of $55,900 was taken by Vijendra Singh of audit and compliance ANZ House 7th Floor on 19.6.03".

(vii) Column 9 is headed "Number and date of receipt or Signature of recipient". The signature "V. Singh 19.6.03" is written thereunder. In column 10 headed "Signature of Police Officer witnessing", the accused admitted, he witnessed both entries in column 10 himself.

(viii) In January 2004, the police conducted an audit of the exhibit room. They found $22,900 missing and $61,000 left from the $83,900 exhibit, in the exhibit room. The sealed money paper bag containing $83,900 had been tampered with. The entries in the exhibit register were not properly done, and as a result, numerous suspicions were raised. The proper reasons for the release of money were not recorded. The release of money were not witnessed by an Assistant Superintendent of Police, or an officer of high rank.

(ix) The accused, was the police exhibit writer, when the above problems surfaced. He admitted, that he signed off the $83,900 in the exhibit register serial no. 4/03 without the presence of a senior officer. He admitted, that is not the procedure. He admitted he was interdicted in September 2004, and discharged from the police on 9th April 2009.

26. As a result, as a matter of law, you may take the above facts, as proven beyond reasonable doubt by the prosecution. They were not disputed facts.

27. The obvious difficulty for the prosecution in this case is that no witness or witnesses said, they saw the accused stealing the $22,900 from the exhibit room, or attempting to steal $61,000 from the exhibit room, or forging Vijendra Singh’s purported signature in column 9 of the exhibit register, serial no. 4/03.

28. The prosecution had openly admitted that they are relying on circumstantial evidence to convict the accused. Circumstantial evidence is inferring facts from proven facts. For example, A and B are in a closed room. Outside witnesses heard a heated argument between the two, and a gunshot sound. When they opened the room, A is found holding a pistol, and B lying in a pool of blood on the floor. No-one saw A shoot B with the pistol he’s holding. Given the above facts, it could safely be inferred that A shot B with the pistol he was holding, although no-one actually saw A shoot B with the pistol. Such inference of fact is termed circumstantial evidence.

29. In this case, there are two competing version of events. From the prosecution point of view, the accused was the exhibit writer, at the material time. He admitted, the $83,900 was in the exhibit room, at the time. It was his duty to care for and make proper records in the exhibit register, of the movements and/or disposal of the $83,900 exhibit. He admitted, filling in column 8 and 10 twice in the exhibit register serial no. 4/03, on 19th June 2003. In the register, it was recorded that a total of $83,900 had been taken by Vijendra Singh of audit and compliance ANZ Bank 7th Floor. Vijendra Singh denied the above in his evidence. Mr. Singh said, the accused rang him on his mobile phone, on 30th January 2004, and told him he took the $22,900. He asked Mr. Singh to lie for him, because he might loose his job. If he didn’t help him out, he might commit suicide. The State is asking you assessors, as judges of fact, to infer from the above and the undisputed facts that:

(i) the accused stole the $22,900 from the exhibit room, because he was the exhibit writer, and in control over it, at the time;

(ii) the accused attempted to steal the $61,000 left in the exhibit room, given his entries in column 8 and 10 of the exhibit register, serial no. 4/03, showing the purported disposal of a total of $83,900 and given the definition of "attempt" in paragraph 13 hereof; and

(iii) the accused forged the signature of V. Singh, on 19th June 2003, to assist him dispose off the total $83,900 exhibit.

30. The accused, on the other hand, denies all the allegations against him. He said, he didn’t steal the $22,900. He said, Vijendra Singh of ANZ Audit and Compliance took the $22,900 from the exhibit room from him. He said, Mr. Singh then signed column 9 twice in the exhibit register, serial no. 4/03. He said, at no time did he attempt to steal the $61,000. The same was still in the exhibit room. He said, he never forged the signature of Vijendra Singh. He said, Vijendra Singh himself signed column 9 of the exhibit register, serial no. 4/03.

31. The two central figures in this case is Mr. Vijendra Singh of ANZ Bank and the accused himself, the exhibit writer, at the material time. You have seen and heard both witnesses give evidence in court, and I am sure you have carefully examine their demeanors in court – that is, the way they gave evidence in court, were they evasive as witnesses? How they dress and their general behavior in court. You have also heard the other prosecution witnesses. You are experienced members of our community, and in your life, you make decisions everyday on whether or not to accept what other people say, or decide who is and who is not a credible person. You bring that life experience into the courtroom, and with the evidence discussed, and the direction of law given and your common sense, you decide which version of events you think credible – is it the prosecution’s, or is it the accused?

If you think the prosecution has proven the accused’s guilt beyond reasonable doubt, you must find him guilty as charged on all counts. If you think the accused’s evidence gives you a reasonable doubt on his guilt, you must find him not guilty as charged on all counts.

I. SUMMARY

32. In summary, the resolution to this case, depends really, on your acceptance or otherwise of Mr. Vijendra Singh’s or Mr. Satya Nand’s evidence. If you are satisfied beyond reasonable doubt that Mr. Satya Nand stole the $22,900 exhibit, attempted to steal the $61,000 exhibit, and forged Mr. Vijendra Singh’s signature on 19.6.03 in the exhibit register, you must find him guilty as charged on all counts. If you are not satisfied beyond reasonable doubt that Mr. Satya Nand stole the $22,900 exhibit, attempted to steal the $61,000 and forged Mr. Vijendra Singh’s signature on 19.6.03 in the exhibit register, you must find him not guilty as charged on all counts.

33. Your possible opinions are:

(i) Count No.1 - Guilty or Not Guilty

(ii) Count No.2 - Guilty or Not Guilty

(iii) Count No.3 - Guilty or Not Guilty

You may retire to deliberate. The clerks will advise me when you have reached your decisions, and we will reconvene, to receive them.

Salesi Temo
ACTING JUDGE

AT Suva
29th January 2010