Fiji Independent Commission Against Corruption v Kumar [2010] FJHC 56; HAC001.2009 (11 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 001 of 2009

THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

RAJESHWAR KUMAR; and
JASWANT KUMAR

Hearing: 8th February 2010
Ruling: 11th February 2010

Counsel: Ms L. Lagilevu & Ms E. Leweni for FICAC
Mr. R. Chaudhary for both Accused

RULING

[1] The defence applies for a no case to answer after close of the case for the prosecution. The application is made pursuant to section 231(1) of the Criminal Procedure Decree 2009, which came into effect on 1 February 2010.

[2] During the hearing of the application, the Court raised with counsel a preliminary issue regarding the requirement of a written sanction to prosecute an offence of abuse of office. The accused persons are charged with this offence on count one.

[3] Ms Lagilevu referred the Court to an amendment to the law that exempts the Commissioner of the Fiji Independent Commission Against Corruption from the requirement of a sanction to prosecute an offence of abuse of office. The amendment was made by Promulgation 30/07 and came into effect on 14 September 2007. The charge of abuse of office was filed in the Magistrates’ Court on 12 December 2008, after the amendment to the law came into effect.

[4] Mr. Chaudhary conceded that a sanction is not required to prosecute an offence of abuse of office if the prosecution is brought in the name of the Commissioner of the Fiji Independent Commission Against Corruption.

[5] However, he raised an issue about whether the information was properly signed. The information is signed by Mr. Madigan, who at the time was a prosecutor in the Fiji Independent Commission Against Corruption. Mr. Chaudhary submitted that there is no evidence that Mr. Madigan was delegated with the authority to exercise the powers of the Commissioner.

[6] The rules governing the form of information at the relevant time were contained in section 235 of the Criminal Procedure Code. Section 235(1A) provides that an information that is in the name of the Commissioner of the Fiji Independent Commission Against Corruption shall be signed by the Commissioner.

[7] Section 13 of the Fiji Independent Commission Against Corruption (Promulgation No. 11 of 2007) provides that the Commissioner may delegate his powers. The delegation of powers is to be made in writing. Once the power is delegated in writing, subsection (2) provides the authorized officer with the same powers that of the Commissioner.

[8] Mr. Chaudhary submitted that the information against the accused persons may not be valid because there is no evidence that Mr. Madigan was delegated in writing the powers of the Commissioner.

[9] I am unable to accept the proposition advanced by Mr Chaudhary. There is a presumption of validity given to acts done by a person in an official capacity or to acts done in discharge of official duties. The burden is on the party, challenging the validity of an official act, to prove the contrary.

[10] In Peniasi Kunatuba v. State Misc No. HAM 66 of 2006 (25 September 2006), a challenge was made to the then Director of Public Prosecutions’ authority to sign the information. Shameem J said:

“These points are clearly arguable. However, they do not, in my view succeed in satisfying the burden on the defence, to show that the information is invalid and the sanction irregular, on the ground of invalidity of an official position. There must be more than a good argument to displace that burden.”

[11] The same reasoning is applicable to this case. While I find Mr. Chaudhary’s argument to be noble, I am not satisfied that the defence displaced the presumption of validity that applies to the information against the accused persons. I hold the information is valid.

Test for no case to answer

[12] Section 231(1) of the Criminal Procedure Decree 2009 is identical to its predecessor provision contained in the Criminal Procedure Code. Section 231(1) reads:

“When the evidence of the witness for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or anyone of the several accused persons) committed the offence.”

[13] Since the Criminal Procedure Decree 2009 has retained the provision for no case to answer application in identical terms with its predecessor provision, the test to be applied to an application for no case to answer has not changed.

[14] The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence. The credibility, reliability and weight of the evidence are matters for the assessors (Sisa Kalisoqo v. State Criminal Appeal No. 52 of 1984, State v. Mosese Tuisawau Criminal Appeal No. 14 of 1990).

[15] Mr. Chaudhary made lengthy submissions, some of which touched on the issues of credibility and reliability of the evidence led by the prosecution. I do not consider that it is appropriate for me to dwell on matters which fall within the province of the assessors. In State v. George Shiu Raj & Anr. Criminal Appeal No. AAU0081 of 2005S the Court of Appeal held that the provision for no case to answer does not allow for some kind of overall discretion to stop a trial. The real question for me is whether there is some evidence on each element of the charged offence, regardless of its nature.

Charges

[16] The accused persons are jointly charged with one count of abuse of office and with an alternative count of embezzlement. The charge of abuse of office is brought contrary to section 111 of the Penal Code, while the alternative charge of embezzlement is brought contrary to section 274 (c) (i) of the Penal Code.

[17] For the offence of abuse of office the prosecution alleges that the accused persons whilst being employed in the Public Service as Mayor and Acting Town Clerk respectively of the Nasinu Town Council, in the course of or in relation to their public office and in abuse of the authority of that office, did an arbitrary act in that they raised a Council Westpac Bank cash cheque number 1045, dated 26/05/06 amounting to $2,344.42 purportedly in payment to Post Fiji Limited but was cashed at the Westpac Bank, Nabua, thereby causing prejudice to the rights of the said Nasinu Town Council.

[18] For the alternative count of embezzlement the prosecution alleges that the accused persons whilst being appointed to serve under the Nasinu Town Council as Mayor and Acting Town Clerk respectively, fraudulently disposed of the sum of $2,344.42 received by them (whilst in service) through Westpac Bank cash cheque number 1045, dated 26/05/06 on account of the said Nasinu Town Council for the purpose other than that for which the monies were entrusted to them.

[19] During the hearing, Ms Lagilevu advised the Court that the prosecution case is that the second accused is the principal offender, while the first accused aided and abetted him. If that is the case, then the prosecution must lead some evidence to show that the first accused intended to encourage the second accused to commit an offence and that he did an act which amounted to a positive act of assistance (R v Clarkson [1971] 1 WLR 1402). It must be shown or inferred from the circumstances that the first accused knew that the offence was going to be committed, or was being committed (R v Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534).

Elements of abuse of office

[20] The offence of abuse of office requires proof of the following elements:

1. That the accused persons were employed in the public service,
   
2. That they acted in abuse of authority of their office,
   
3. Their act was arbitrary,
   
4. That the act was prejudicial to the rights of another.
   

Elements of embezzlement

[21] The offence of embezzlement in the context of this case requires proof of the following elements:

1. The accused persons were employees,
   
2. They received money on the account of their employer,
   
3. They fraudulently or dishonestly disposed the money that they were entrusted with.
   

[22] All the elements of the two offences are in dispute.

Identity of the accused persons

[23] Mr. Chaudhary submits that there is no evidence of identification in this case. In crafting his arguments, Mr. Chaudhary pointed out that the prosecution failed to lead evidence of dock identification of the accused persons by their witnesses.

[24] In reply, Ms Lagilevu informed the Court that she took for a fact that identification of the accused persons was not in dispute. She submits that in any event, the accused persons have been identified by their names by the prosecution witnesses. Ms Lagilevu submits that there is evidence of identification of the accused persons by implication of their names by the prosecution witnesses, and that it was not suggested in cross-examination of the witnesses that the persons they were referring to were not the accused persons.

[25] There is a long recognized general rule of practice that a witness speaking to the commission of a crime should be asked to make a dock identification. Most common law jurisdictions have adopted this practice, although, it is not a rule of law.

[26] Ms Lagilevu has helpfully referred to Canadian authorities on this practice. I find in particular one authority persuasive. In R v. Nicholson (1984) 12 C.C.C. (3d) 228, the accused was somebody described by the complainant only, as ‘John Robert Nicholson.’ There was a formal admission by the counsel for the defence that the person in the dock was the accused. At the trial there was no dock identification made of the accused, although his name was referred to by witnesses when giving evidence. The accused was convicted. On appeal, Kerans J.A. at pp 230-31 of the judgment said:

“The argument for the appellant before us proceeded on the assumption that a dock identification by an arresting officer is an integral part of the criminal process. This is a myth. That the Crown often relies upon such evidence should not permit us to think that a dock identification is a ritual as essential to a criminal trial as, say, the reading of the charge. The onus upon the Crown is to prove that the crime alleged has been committed and that the accused is the person who did it. This last, like any fact in issue, can be proved in many different ways.”

[27] Later, at p 236, Kerans J.A. said:

“It follows that no dock identification of an individual in the court-room as being the accused need be made in such a case. Identification of the accused as the offender is established if it is established that the offender was given the appearance notice confirmed by the information founding the case.”

[28] Similar approach was taken by the Criminal Appeal Court of Scotland in the case of Michael Murphy v. Her Majesty’s Advocate [2007] HCJAC57 (www.scotcourts.gov.uk/opinions/2007HCJAC57.html). Lord Osborne, delivering the leading opinion, at pp 26-27 had this to say about the practice of dock identification:

"Furthermore, over many years, prosecutors have not in fact observed any such rule. Rather, they have exercised their discretion as to whether they would seek to elicit evidence of visual identification from a particular witness, in the light of the whole circumstances known to them. That I regard as a perfectly proper approach.

It is quite evident from the authorities on the rules of evidence which I have quoted that the implication of an accused person in the commission of an offence may be proved in a variety of different ways by direct evidence, or by indirect evidence of different kinds. How the Crown goes about proving that essential feature of a case must be a matter for the exercise of its discretion, in the light of the evidence which may be available to it in the circumstances of any particular case, about which the court will almost certainly have no knowledge. It appears to me that the rule contended for on behalf of the appellant would undermine the exercise of that proper discretion. For these reasons I consider that no such rule can be recognized......"

[29] During the trial, the prosecution led evidence from witnesses referring to the accused persons by their names. The witnesses knew the accused persons and the positions they held at the Nasinu Town Council. The second source of identification evidence is the documentary evidence identifying the accused persons by their names. Some of these documents were tendered by the defence in cross-examination of the prosecution witnesses.

[30] Also, during the cross-examination, Jaswant Kumar was referred by the defence counsel as the second accused. Official receipts were tendered by the defence to show that the second accused had made some reimbursement to the Nasinu Town Council. Minutes of the council’s meetings attended by the accused persons were tendered by the defence to show that the accused persons did not attempt to conceal anything. There is evidence of identification despite there being no dock identification evidence of the accused persons.

[31] The trial commenced after the assessors were sworn and pleas of not guilty entered by the accused persons when the information was put to them. The information containing the charges was entitled "Rajeshwar Kumar f/n Rup Chand and Jaswant Kumar f/n Lekh Ram is charged with the following offences:".

[32] The particulars of offence named Rajeshwar Kumar and Jaswant Kumar. The particulars further disclosed that Rajeshwar Kumar and Jaswant Kumar were employed in the public service as Mayor and Acting Town Clerk respectively when they allegedly committed the offences.

[33] When asked what their pleas were, both accused persons said they were not guilty. At no stage of the proceedings neither the accused nor their counsel protested that they were mistaken for the persons named in the information.

[34] In any event, Mr. Chaudhary has referred to passages from Archbold, (1995) Vol. 1 §4-364-365, that state the court has discretion to allow the prosecution to re-open its case to prove that the accused is the person referred to in evidence by the witness in a case where the failure to lead dock identification is due to the prosecution counsel’s mistaken assumption that the issue is not in dispute.

[35] Whether the prosecution should re-open its case is a matter for the prosecution counsel to consider, and I will not say any more on that issue.

Were the accused persons employed in the public service?

[36] The prosecution case is that the first accused was the Mayor of the Nasinu Town Council, while the second accused was the Town Clerk, when they abused the authority of their office. Mr. Chaudhary submits that there is no evidence that the accused persons were employed by the Nasinu Town Council. He submits that the prosecution led no evidence of the employment contracts or remunerations of the accused persons to prove that they were employees of the Nasinu Town Council. Mr. Chaudhary relies on the Employment Relations Promulgation 2007 that defines the word "employ" as "to use the services of a person under a contract of service". He argues that the accused persons could have been volunteers.

[37] Furthermore, Mr. Chaudhary relies on the case of Bala v. AG [2005] FJHC 282, HBC0045.2002L (17 February 2005), in particular, the following passages of the judgment:

"Section 150 of the 1990 Constitution of the Sovereign Democratic Republic of Fiji specifically excluded "the office of member of any council" from the construction of "public office."

When one considers the meanings of "public office" in section 194, it is necessary to look at the list (a) to (h) applying the ejusdem generis rule. When so doing, items (g) and (h) might then be read as being limited to a position of profit in or as a member of a statutory authority or similarly, an office of profit established by a written law. Those matters detailed in (a) to (f) would certainly be suggestive of such an interpretation.

There can be no doubt that the position of Councillor under the Local Government Act is a position established by a written law but that then begs the question as to whether the position of councillor is in fact "an office." Similarly, there can be no doubt that a council established under the Local Government Act is a statutory authority however once again, that begs the question as to whether a Councillor is a person holding "an office" in that statutory authority.

Applying the principles as expressed in sections 3, 6 and 7 of the Constitution together with the canons of statutory interpretation to which I have referred leads to the conclusion that the words "an office" where appearing in Clauses (g) and (h) of the definition of "public office" and in section 194 of the Constitution refer to an office of profit and do not include a member of any Council established pursuant to the Local Government Act."

[38] I do not think the dicta in Bala are relevant to this case. In that case, the court construed the meaning of the term "public office", as contained in section 67(1) of the 1990 Constitution. The issue was whether a councillor pursuant to the Local Government Act was a person holding a public office under the 1990 Constitution.

[39] In this case the question is whether the Mayor and the Town Clerk of a Town Council established under the Local Government Act are persons employed in the public service, as defined by the Penal Code. I also note that the Penal Code has not used the term "public office" but has used the term "employed in public service." Clearly, for these reasons, Bala’s case is distinguishable.

[40] Section 4 of the Penal Code defines the term "employed in public service". The definition lists various public office holders including persons employed by a local authority. The relevant part of the provision relied by the prosecution reads:

"person employed in public service" means any person holding any of the following offices or performing the duty hereof, whether as a deputy or otherwise, namely;

(i). any office to which a person is appointed or nominated under the provisions of any Act or by election;"

[41] A Town Council is established under section 8 of the Local Government Act. The position of a Mayor is established by section 20 of the Local Government Act. The qualification of a Mayor is provided by section 21 of the Local Government Act. The Mayor must be a councillor under the Local Government Act and is elected annually by the council from among the members. Section 25 (5) of the Local Government Act provides that a Mayor does not receive salary but an allowance.

[42] A Town Clerk is appointed by the council under section 35 of the Local Government Act and is paid a salary.

[43] Ms Lagilevu submits that a Town Council is created under the Local Government Act and any person who is appointed or nominated to an office of the Town Council is employed in the public service. She submits that there is evidence that the first accused was the Mayor of the Nasinu Town Council, while the second accused was the Town Clerk. She further submits that the accused persons held positions in an office established by a statute and therefore were employed in the public service.

[44] I hold that the term "public office" as used in the 1990 and 1997 Constitutions and the Local Government Act could not be accorded the same meaning as the term "employed in public service" as defined in the Penal Code. In Makrava v. DPP & A-G Action No. HBJ008 of 1998, Byrne J had to consider whether section 4 of the Penal Code in its definition of the term "person employed in public service" was inconsistent with the meaning of the term "public office" as contained in section 149 of the 1990 Constitution. Byrne J held that the meaning of the term "public office" was confined to usage within the Constitution and therefore there was no inconsistency between section 149 of the Constitution and section 4 of the Penal Code.

[45] The Court is not concerned about the meaning of the term "public office" but the meaning of the term "employed in public service" as contained in the Penal Code. The drafters can only have intended that the meaning be different, by defining the term "employed in public service" in the Penal Code.

[46] A statute’s policy is to be found in the legislative intent. It is the cardinal rule in the construction of statutes that such intent is itself, to be found solely in the words of the statute, if they are free from ambiguity and express a sensible meaning.

[47] A Court should construe a statute as the legislature intended (R v. Banbury (Inhabitants) (1834) 1A. & E. 136). Legislative intent is determined by the statute’s wording (Capper v. Baldwin [1965] 2 Q.B. 53). In other words, where the language of the statute is plain and unambiguous, it declares its own meaning and there is no room for construction.

[48] Section 4 of the Penal Code is plain and unambiguous. A person is employed in the public service if he or she is appointed or nominated under the provisions of any Act or election. The Mayor of a council is appointed by election under the Local Government Act, while the Town Clerk is an employee.

[49] If there is some evidence that the first accused was the Mayor of the Nasinu Town Council and that the second accused was the Town Clerk of the council, then it did not matter whether they were on employment contracts or received remunerations from the council. It only mattered that the accused persons held the status of the mayor and town clerk respectively. There is evidence that the first accused held the status of Mayor while the second accused held the status of Town Clerk at the Nasinu Town Council at the relevant time. There is evidence the accused persons were employed in the public service.

Abuse of authority

[50] Mr. Chaudhary submits that there is no evidence that the accused persons abused the authority of their office. Mr. Chaudhary points out there is no evidence that the accused persons failed to comply with any by-laws in the raising of the payment voucher (exhibit P16) and the cheque (exhibit P2), which are subject of the charge. He further submits that the prosecution has not rebutted the possibility of an honest mistake in the raising of the said voucher and the cheque.

[51] Ms Lagilevu submits that there is evidence that the second accused raised the payment voucher and the cheque with an improper motive, that is, not for the use of the Nasinu Town Council but for his own.

[52] She submits that there is evidence that the cheque was signed by the second accused and counter-signed by the first accused. The same cheque was then cashed at a bank and was never received by Post Fiji.

[53] The issue as to what constitutes an abuse of office was considered by the Supreme Court in the case of Naiveli v. State Criminal Appeal No. CAV 001/94. At page 3 of the judgment, the Supreme Court said:

"Central to the commission of an offence under s.111 is the doing or directing to be done of an arbitrary act, ‘in abuse of the authority’ of the accused’s ‘office.’ What differentiates something done in abuse of office from something not done in abuse of office in many cases will be the state of mind of the accused. An act done or direction given, which is otherwise within the power or authority of an officer of the Public Service, will constitute an abuse of office if it is done or given maliciously with the intention of causing loss or harm to another, or with intention of conferring some advantage or benefit on the officer. They are just two instances of abuse of office. No doubt other instances may be given. But it would be unwise for us to attempt any exhaustive definition of what constitutes an abuse of office, to use a shorthand description of the statutory expression ‘abuse of the authority of his office’."

[54] In this case, the raising of the payment voucher was within the authority of the second accused. There is evidence to that effect. Also the signing of cheque was within the authority of both accused persons.

[55] The question is whether there is some evidence to prove the accused persons exercised their powers with an improper motive, that is, to cause loss or harm to another, or with intention of conferring some advantage or benefit on themselves. The payment voucher was raised on 26 May 2006. Vinita Prasad recognized the handwriting on the payment voucher to belong to the second accused. The particulars of the payment reads: "payment for purchase of stationeries deducted from staff pay as per invoices attached." However, there are no invoices attached to the voucher. The amount is $2,344.42 and the payee is Post Fiji. Reference is made to a cheque no. 1045. The second accused’s signature appear on the title of the Town Clerk. The payment voucher is not certified and the identity of the receiver of the cheque is not mentioned.

[56] The cheque is made cash and is in the amount of $2,344.42. The cheque is signed by the accused persons. There is evidence the cheque was cashed at Westpac Nabua branch after 4 pm on 26 May 2006. There is no evidence of the identity of the presenter of the cheque at the bank.

[57] The corresponding cheque butt of cheque no. 1045 states the payment was to Post Fiji. There is evidence that the payment was never received by Post Fiji. Post Fiji was subsequently paid with three separate cheques totalling the amount in cheque no. 1045. The payment vouchers for the three cheques were prepared by Vinita Prasad on the instructions of the second accused. The three cheques were signed by the accused persons.

[58] There is evidence that after the discrepancies in the payments to Post Fiji were deducted by government auditors, the second accused proposed to reimburse the Nasinu Town Council and did in fact make two payments as evidenced by the receipts (exhibits D7& D8) issued to him by the council.

[59] There is some evidence against the second accused that he abused the authority of his office as the Town Clerk of the Nasinu Town Council in raising of the payment voucher and the cheque purported to be a payment to Post Fiji, which payment was not made to Post Fiji. The motive or intentions of the second accused is a matter of inference for the assessors.

[60] The same finding cannot be made against the first accused. The only evidence against the first accused in the raising of the payment subject of the charge, is that he signed the cheque. Signing of the cheque was perfectly within his authority. There is no evidence that the first accused knew that the corresponding voucher of the cheque he had signed was raised in breach of existing accounting procedures of the Nasinu Town Council. Nor is there any evidence that he knew that the subsequent cheques he signed were to cover up for the missing payment to Post Fiji.

[61] When the discrepancies in the payment to Post Fiji was discussed in a meeting of the Nasinu Town Council after the government audit query, the first accused admitted that he signed the cheques assuming that all the administrative work has been sorted and cleared by the management. In this regard, the audit did not make any adverse findings against the first accused. The adverse audit findings were directed towards the second accused only.

[62] While the prosecution has led evidence that the first accused signed the cheque, there is no evidence direct or circumstantial that he was signing the cheque knowing that an offence was being committed. The first accused has offered an innocent explanation for his conduct. The prosecution led no evidence to rebut the first accused’s honest and reasonable belief that the cheque he signed was going to be used for some proper purpose.

[63] Ms Lagilevu argues that the first accused as the Mayor had a duty to ensure that he checked the payment voucher before signing the cheque. However, I am of the view that an act of negligence alone is not sufficient to make an inference of a criminal intention and to impute criminal wrong for a civil breach.

[64] I find there is no evidence of abuse of authority of office by the first accused.

Arbitrary act

[65] The third element that the prosecution must prove for the offence of abuse of office is that the accused persons did an arbitrary act. The term "arbitrary act" is not defined in the Penal Code. In State v. Humphrey Kamsoon Chang Criminal Case No. 8 of 1991, Jesuratnam J defined an arbitrary act to be a despotic and an autocratic act.

[66] In Kubunavanua v. State Criminal Appeal No. 8(b) of 1992, the Court of Appeal said the word "arbitrary" indicated nothing more than the exercise of one’s own free will.

[67] In State v. Eminoni Bola Criminal Case No. HAC 029 of 2005S, Shameem J held that an arbitrary act is an act that is not guided by the normal procedures but by the wishes of the accused. The authorities on this element show that the emphasis is on the existence of rules and regulations, and whether they were flouted unreasonably by the accused.

[68] Mr. Chaudhary submits that there is no evidence of any procedure being violated by the accused persons. He submits that there is no evidence that the Manual of Accounts for Municipal Councils (exhibit D1) was being used by the Nasinu Town Council.

[69] While there is no evidence that the Nasinu Town Council followed the Manual, there is evidence of the accounting procedures of the council at the relevant time. There is no legal requirement that the procedures flouted have to be the ones prescribed in by-laws or regulations. Existing accounting practices of the council will constitute sufficient proof of the existence of the procedures. The source of this evidence is Vinita Prasad’s testimony, who worked in the accounts section under the supervision of the second accused. She said she got the procedures from the second accused who also was the Manager Finance at the time. She said the procedure for raising a cheque was to prepare a payment voucher on an invoice, and after the supervisor had verified the voucher, the cheque was written and taken to the authorized signatories to sign.

[70] There is evidence that the second accused prepared the payment voucher (exhibit P16) without an invoice and then without certification raised a cheque. The voucher was raised to pay Post Fiji but the cheque was made cash.

[71] The cheque was released without taking the identity of the receiver and the cheque was cashed at a bank. The cheque was not received by Post Fiji as disclosed by the payment voucher and the corresponding cheque butt.

[72] There is some evidence against the second accused that he unreasonably flouted the existing accounting procedures of the Nasinu Town Council. Whether the accounting procedures used by the council at the relevant time were weak is irrelevant to the issue of whether the act of the accused constituted an arbitrary act.

[73] The only evidence against the first accused is that he signed the cheque. There is no evidence that he unreasonably flouted the accounting procedures when he signed the cheque. Therefore, there is no evidence against the first accused that he committed an arbitrary act.

Prejudiced the rights of another

[74] The prosecution alleges that the acts of the accused persons prejudiced the rights of the Nasinu Town Council.

[75] Mr. Chaudhary submits that there is no evidence of loss to the Nasinu Town Council. He submits that monies drawn from cheque (exhibit P2) were deductions from staff salary and therefore belonged to the employees and not to the council. This submission cannot be sustained in law.

[76] The Penal Code defines owner, when used with reference to property, to include corporations of all kinds and any other association of persons capable of owning property. The expression owner also includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen.

[77] The cheque was drawn from the bank account of the Nasinu Town Council. At the time the money was drawn, the funds were in the control of the council. Regardless of whom the money belonged to, when the money was drawn from the Nasinu Town Council’s account, the council was exposed to a loss of funds under its control.

[78] There is some evidence for the assessors to consider whether the rights of the Nasinu Town Council were prejudiced.

Alternative count of embezzlement

[79] The prosecution has led evidence that the money drawn on the cheque (exhibit P2) was from the Nasinu Town Council’s bank account. There is evidence that the accused persons were holding the funds of the Nasinu Town Council in their official capacities. By virtue of being authorized to operate the council’s bank account, they received the funds for the use of the council.

[80] The prosecution case is that a reasonable inference could be drawn that the accused persons dishonestly disposed the money after cashing the cheque. While a reasonable inference of such a nature could be drawn against the second accused based on the evidence of the manner in which the payment voucher and the cheque were raised, no such inference could be drawn against the first accused on the mere basis of him signing the cheque. The question of whether the second accused acted dishonestly is a matter for the assessors.

Conclusion

[81] For the reasons given, I find there is no evidence against the first accused to answer to the charges against him. I record a finding of not guilty against the first accused in respect to the offence of abuse of office charged in count one and to the offence of embezzlement charged in the alternative count.

[82] I find the second accused has a case to answer in respect to count one and as well as to the alternative count of embezzlement. I will now explain him his options.

SO ORDERED.

Daniel Goundar
JUDGE

At Suva
11th February 2010

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