State v Murti - Ruling [2010] FJHC 497; HAC195.2010 (10 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC195 of 2010

STATE

V

KADALI SURYANAYANARA MURTI

Hearing: 4 November 2010
Reasons: 10 November 2010

Counsel: Ms S. Tagivakatini for State
Ms N. Nawasaitoga & Mr. S. Waqainabete for Accused

RULING

[1] On 4 November 2010, I refused an application for no case to answer by the defence. I now give my reasons.

[2] The application for no case to answer is provided by section 231(1) of the Criminal Procedure Decree. The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence. Matters of the credibility and weight of the evidence are not within the province of the judge at this stage of the trial (Sisa Kalisoqo v. State Crim. App. No. 52 of 1984; State v. Mosese Tuisawau Crim. A.R. No. 14 of 1990).

[3] The accused is charged with one count of trafficking in persons and seven counts of obtaining property by deception.

[4] To sustain the charge of trafficking in persons, the prosecution must prove, firstly, that the accused facilitated the entry of another person into Fiji, and secondly, in facilitating that entry, the accused was reckless as to whether the person will be exploited.

[5] In the context of the charge, the accused is reckless if he was aware of a substantial risk that the exploitation will occur and having regard to the circumstances known to him, it was not justifiable to take risk.

[6] To sustain the charge of obtaining property by deception, the following elements must be proved:

The Accused,

By a deception,

Dishonestly obtains property belonging to another,

With the intention of permanently deprive the owner of that property.

[7] Deception is defined by section 316 of the Crimes Decree as follows:

"deception" means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law,..."

[8] The prosecution led evidence from the complainants named in the charges and the immigration officers who dealt with the accused and the complainants upon their arrival in Fiji from India via Hongkong. The complainants gave evidence of what transpired between them and the accused before they travelled from India to Fiji. Their evidence is that the accused lured them on the pretext of arranging work for them in New Zealand and obtained money from them. The accused met them in a coffee shop in Delhi and he convinced them to give him money after showing documents that they have been offered jobs in a farm in New Zealand. The complainants said the accused made all the travelling arrangements for them. Their airline tickets were given to them by the accused at Delhi Airport. The accused accompanied them in the flights from India to Fiji via Hongkong. Upon arrival in Nadi, the complainants learnt that they arrived in Fiji and not in New Zealand. They said that they would not have given money to the accused if they would have known that they were being brought to Fiji rather than New Zealand.

[9] There is an undisputed statement from the accused in his caution interview that he was going to leave the complainants in Fiji and return to India.

[10] It is not for me to assess the credibility of the complainants at this stage of the trial. That is a matter for the assessors. If the evidence of the complainants and the immigration officers are accepted, the assessors could find the accused guilty.

[11] The defence raises an issue about the jurisdiction to try the case. Counsel for the accused submits that the allegations arose in Delhi, India, and therefore, Fiji's courts lack jurisdiction. I disagree.

[12] Section 7(1)(b) of the Crimes Decree provides:

"Unless any of the provisions of section 8 apply to an offence under this Decree or any other Act or Decree, a person does not commit an offence against the laws of Fiji unless –

(a) the conduct constituting the alleged offence occurs wholly outside Fiji and a result of the conduct occurs –

• (i) wholly or partly in Fiji; or
  
• (ii) wholly or partly on board a Fijian aircraft or a Fijian ship;"
  

[13] Although the alleged deception occurred in India, in my opinion, a result of that alleged deception occurred in Fiji, that is, the complainants ended up in Fiji, a country that they had not intended to come.

[14] I find that there is available relevant and admissible evidence on all the counts and that there is jurisdiction to try the offences. The intention, knowledge and motive of the accused are however matters of inference for the assessors after considering the whole of the evidence.

[15] The accused therefore has a case to answer.

Daniel Goundar
JUDGE

At Suva
10th November 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused