State v Murti [2010] FJHC 498; HAC195.2010 (10 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC195 of 2010

STATE

V

KADALI SURYANAYANARA MURTI

Hearing: 1 - 8 November 2010
Summing Up: 10 November 2010

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

SUMMING UP

Madam Assessor and Gentlemen Assessors

[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] 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.

[8] The accused is charged with one count of trafficking in persons and seven counts of obtaining property by deception. You must consider each count separately and you must not assume guilt on all counts simply because you have assumed guilt on one.

[9] Count 1 relates to the offence of trafficking in persons. This offence has two elements which the prosecution must prove beyond reasonable doubt. You must be sure:

1. That the accused facilitated the entry of another person into Fiji; and
   
2. In facilitating that entry, he was reckless as whether that person will be exploited by himself or another.
   

[10] So, firstly, you must be satisfied beyond reasonable doubt that the accused facilitated the entry of the seven complainants, namely, Yadvinder Singh, Jaswinder Singh, Davinder Pal Singh, Tara Chand, Tejbeer, Vijay Kumar and Lahkvir Singh, into Fiji.

[11] Secondly, you must be satisfied beyond reasonable doubt that the accused was reckless as to whether the complainants will be exploited after entry into Fiji. The word "exploit" means to treat a person as an opportunity to gain an advantage for yourself or for another. The prosecution is not required to prove that exploitation of the complainants in fact occurred. What the prosecution is required to prove beyond reasonable doubt is that the accused was reckless as to whether the complainants will be exploited either by himself or another after the entry.

[12] Recklessness is proven if you are satisfied beyond reasonable doubt that the accused was aware of a substantial risk that exploitation of the complainants will occur and having regard to the circumstances known to him, it was unjustifiable to take the risk.

[13] It is for you to consider whether the accused facilitated the entry of the complainants into Fiji and whether he was aware of a substantial risk that exploitation will occur and the he was not justified to take the risk having regard to the circumstances known to him. You consider these issues by having regard to all the evidence including what the accused said in his caution interview and in his evidence in court.

[14] On counts 2 to 8, the accused is charged with the offence of obtaining property by deception. In order to prove the offence of obtaining property by deception, the prosecution must satisfy you beyond reasonable doubt of the following elements:

1. The accused,

2. By deception,

3. Dishonestly obtained property of another,

4. With the intention of permanently depriving the owner.

[15] The deception alleged by the prosecution is that the accused falsely represented to the complainants that he had arranged work for them in New Zealand and he dishonestly obtained money from the complainants with the intention of permanently depriving them of their property. "Dishonesty" is a word with which you will be familiar and you must use your own experience of life in deciding whether in all the circumstances the accused acted dishonestly.

[16] Whether the accused by deception, dishonestly obtained property from the complainants with the intention of permanently depriving them as alleged in counts 2 to 8, is a 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.

[17] The prosecution case is that the deception occurred in Delhi, India but the result of the deception occurred in Fiji, that is, the complainants ended up in Fiji, a country they had not intended to come. I direct you that as a matter of law, Fiji's courts have jurisdiction to try the case and you do not have to consider the jurisdiction issue.

[18] 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.

[19] The caution interview (P1) of the accused is in evidence. You may read the interview for yourselves. The statements made by the accused in his interview are evidence for and against the accused. What weight you attach to those statements is entirely a matter for you.

[20] You recall counsel for the accused cross-examined certain witnesses on the statements they made to the police. 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.

[21] Another direction that I wish to give relates to the evidence of the seven complainants mentioned in the charges. 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.

[22] 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, for instance, in this case, the complainants made false declaration about their purpose of visit to Fiji to immigration officers upon their arrival. 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.

[23] 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. You can accept that there is no corroboration of the seven complainants' evidence. You may act upon the evidence of the seven complainants if you feel sure of the truth of their evidence bearing in mind the warning I have given.

[24] 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.

[25] 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.

[26] 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.

[27] 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

[28] The prosecution called the seven complainants and four immigration officers to give evidence. All the seven complainants are Indian nationals. They gave evidence about their dealings with the accused. They met the accused in Delhi after learning he was arranging overseas work for Indian nationals. After two or three meetings, the complainants paid money either in Indian rupees or New Zealand dollars to the accused upon showing of documents that they have been offered jobs in a farm in New Zealand. They said the accused made the travelling arrangements for them after they had paid him the money he had asked for. The airline tickets were given to them at the airport in India. They said the accused had told them that Nadi was in New Zealand and that they would take a domestic flight from Nadi to their final destination in New Zealand.

[29] Tara Chand is named as the complainant in counts 1 and 5. Tara Chand said he first met the accused on 20 July 2010 in a coffee shop in Delhi, India. He was interested in overseas employment. Tejbeer and Vijay Kumar accompanied him to this meeting. He said the accused told him that there were jobs available in New Zealand and he would arrange one for him. He told him work was available at Marvin Farm in New Zealand. The accused asked for a payment of 150,000 Indian rupees once the documents were ready. After the first meeting, they met for the second time at the same location. The accused showed and gave documents P27 to Tara Chand. After looking at P27 Tara Chand said he was convinced that he had been offered a job at Marvin Farm in New Zealand. Tara Chand paid 150,000 rupees to the accused.

[30] On the evening of 8 September 2010, Tara Chand met the accused at Delhi International Airport where he received his air ticket from the accused. They travelled together all the way from Delhi to Nadi via Hong Kong. The accused told him that Nadi was in New Zealand. When they arrived at Nadi International Airport, Tara Chand said he came to know from the immigration officers that Nadi was not in New Zealand. He came to know that he arrived in a different country and not in New Zealand. He said if he had known that the accused was not taking him to New Zealand, he would not have given the money to him.

[31] The next witness was Vijay Kumar. He is the complainant in counts 1 and 7. He gave 150,000 Indian rupees to the accused to arrange work for him in New Zealand. The accused gave him document P28 and an identification card P29. Vijay Kumar said all travel arrangement was made by the accused. He only came to know about Fiji when he arrived at Nadi International Airport. He said he would not have given the money to the accused if he had known the accused was not taking him to New Zealand. In cross-examination, Vijay Kumar said he did not ask for receipt from the accused because he trusted the accused and that he was travelling with him.

[32] You heard evidence of Jacob Brains, the Managing Director of Marvin Farms Limited in New Zealand. His evidence is that he has not offered any employment to the seven complainants. He does not know the complainants or the accused. He was shown documents P28, P29 and P31. He said the letters were not from Marvin Farm Limited and that he had never seen the letters before.

[33] Tejbeer is the complainant in counts 1 and 6. He is a friend of Tara Chand. He met the accused with Tara Chand and Vijay Kumar. He gave a similar account of what transpired between the three of them and the accused. He paid 150,000 rupees to the accused for arranging work in New Zealand. He said he had once travelled to Dubai with a relative. Otherwise, he had not been out of India. He said he would not have given the money to the accused if he had known that the accused was not taking him to New Zealand for work.

[34] Yadvinder Singh is the complainant in counts 1 and 2. He spoke about two meetings with the accused at a coffee shop in Delhi. He said the accused agreed to arrange a job for him in New Zealand. He paid the accused NZ$4300.00 cash. He came to know from the immigration officers at Nadi International Airport that he arrived not in New Zealand but in a different country. He said he would not have given the money to the accused if he had known that the accused was not taking him to New Zealand for work.

[35] Jaswinder Singh is the complainant in counts 1 and 3. He met the accused with Yadvinder Singh. He said he paid the accused NZ$4300.00 cash to arrange work in New Zealand. When he arrived at Nadi International Airport, he learnt that he has come to Fiji and not New Zealand. He said he would not have given the money to the accused if he had known that the accused was not taking him to New Zealand for work.

[36] Davinder Singh is the complainant in counts 1 and 4. Lakhvir Singh is the complainant in counts 1 and 8. These two complainants met the accused in Delhi, India and they each paid NZ$4300.00 cash to the accused for arranging work for them in New Zealand. They said they would not have given the money to the accused if they had known that the accused was not taking them to New Zealand for work.

[37] The remaining four witnesses were from the Immigration Department. The accused and the seven complainants were referred to these immigration officers upon arrival at Nadi International Airport.

[38] Ravineshwaran Nair is an Immigration Inspector. Mr. Nair searched the hand carry bag of the accused upon arrival at Nadi International Airport. He found six envelopes containing New Zealand and US currencies. Mr. Nair said the accused told him the money belonged to him. The name Andrew Lee was written on the envelopes. The accused told Mr. Nair that Andrew Lee was his Christian name.

[39] Deepak Karan is another Immigration Inspector who dealt with the accused and the seven complainants upon arrival at Nadi International Airport. The accused told Mr. Karan that he was travelling together with the complainants and that they were from a youth group in India. The accused spoke on behalf of the group. Mr. Karan said the accused told him they were visiting Fiji. He counted the currencies contained in the envelopes found inside the accused's bag. The currencies tallied to NZ$10,000 and US$4470.00.

[40] The next witness was the Acting Immigration Officer Research and Development, Bhavna Naidu. Ms Naidu said the accused told her he was assisting the complainants because they did not speak English. She said the accused told her that the ID cards were given to him by one Renuka to be given to the complainants. She said the accused told her that he was travelling with the seven complainants and that he would have left them in Fiji and returned to India.

[41] Talei Kotobalavu, Acting Senior Immigration Officer, gave evidence of converting the currencies seized from the accused and using the money to meet the detention costs of the accused and the complainants. She tendered receipts of payments to Melanesian Hotel (P34) where the accused and the complainants were detained after being declared non-genuine visitors upon arrival.

[42] That is the prosecution case.

The defence case
[43] The accused gave evidence. He said when he came to Delhi Airport on 8 September 2010 he met the seven complainants. The accused said he had not spoken to them before but had seen them twice in a coffee shop in Delhi. The first time he saw them was on 2 September 2010 and the second time was on 6 September 2010. At Delhi Airport the complainants asked the accused for his assistance with English translation as they spoke little English. The accused agreed to assist them with the translation. He said when they arrived in Nadi, he told Ms Bhavna that they were in a group but were travelling separately. The accused said the money seized from his bag belonged to him. He denies taking any money from the complainants. He denies making representation about employment in New Zealand to the complainants. He denies making travel arrangements for the complainants. He denies escorting the complainants to Fiji. The accused said the only reason he was with the complainants was to assist them with the English translation.

[44] In cross examination the accused admitted that his and the complainants' electronic ticket numbers are in a sequence. The accused said the booking of his ticket was done by his sister.

[45] That was the case for the defence.

Analysis
[46] It is not in dispute that the accused and the seven complainants travelled together from Delhi, India to Nadi, Fiji, via Hong Kong. The remaining facts are in dispute.

[47] On count 1, the prosecution says that the accused facilitated the entry of the complainants into Fiji by making the travel arrangements for them and by accompanying them during their flight from India. The prosecution says that the accused knew the complainants were desperate to travel overseas for work and that he was going to leave the complainants in Fiji after the entry. The prosecution submits that having regard to these circumstances, the accused was aware of a substantial risk that exploitation of the complainants will occur and that it was unjustifiable to take the risk.

[48] The defence says that the accused did not facilitate the entry of the complainants into Fiji and therefore he was not reckless as to whether the complainants will be exploited.

[49] On counts 2 to 8, the prosecution says that the accused deceived the complainants by falsely representing that he had arranged work for them in New Zealand. By this deception the prosecution says that the accused dishonestly obtained money from the complainants with the intention of permanently depriving them of their property.

[50] The defence says that that accused never took any money from the complainants to arrange work for them in New Zealand. Therefore, the defence says that the accused had not acted dishonestly to obtain property from the complainants with the intention of permanently depriving them.

[51] Which version of the facts to accept is entirely a matter for you? Let me summarize the questions that you have to consider.

[52] The questions for you on count 1 are:

1. Did the accused facilitate the entry of the complainants into Fiji?
   
2. If he did, was he aware of a substantial risk that the complainants will be exploited?
   
3. If he was aware of the substantial risk, was he justified in taking the risk having regard to the circumstances known to him?
   

[53] The questions for you on counts 2 to 8 are:

1. Did the accused deceive the complainants by falsely representing that he had arranged work for them in New Zealand?

2. Did the accused dishonestly obtained money from the complainants with the intention of permanently depriving them of their property.

[54] Remember to consider each count separately. If you are satisfied of the guilt of the accused beyond reasonable doubt then you advise me that he is guilty. If you have a reasonable doubt about his guilt, you must advise me that he is 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
10 November 2010

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