State v Sinha - Summing Up [2010] FJHC 588; HAC046.2008 (21 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC046 of 2008

STATE

v.

SALENDRA SEN SINHA

Hearing: 4 – 18 October 2010
Summing Up: 21 October 2010

Counsel: Ms A. Tuiketei & Ms A. Lomani for State
Mr. H.A. Shah 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] When the trial commenced, the Accused faced five counts. The Accused no longer faces forgery charges, that is, counts one and three, and therefore you do not have to consider those counts. However, you must consider the evidence on the remaining counts, that is, two, four and five, separately, and you must not assume guilt on all counts simply because you have assumed guilt on one.

[9] On counts two and four, the Accused is charged with causing payment of money by virtue of forged instrument. This offence has several elements which the prosecution must prove beyond reasonable doubt. The elements are:

1. The Accused
   
2. With intent to defraud
   
3. Caused payment of money
   
4. By virtue of a forged instrument
   
5. With knowledge the instrument was forged.
   

[10] An instrument includes a document. A cheque is a document. Forgery is making of a false document in order that it may be used as genuine. A false document can be made by material alteration to the document, either by addition, insertion, obliteration, erasure, removal or otherwise.

[11] To defraud is to intentionally use dishonest means to deprive another person of their property, or to imperil their rights or interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another person of money or property, or to imperil another person's rights or interests, knowing that they have no right to deprive that person of money or property, or imperil that person's rights or interests.

[12] If you are satisfied beyond reasonable doubt that the accused caused payment of money by virtue of forged instrument, knowing the instrument was forged, then the element of intention to defraud is proven.

[13] On each count of causing payment of money by virtue of forged instrument, the prosecution must prove beyond reasonable doubt that the Accused with intent to defraud caused payment of money to him by virtue of forged cheques. The prosecution is not required to prove that the Accused forged the cheques. What the prosecution must prove beyond reasonable doubt is that the Accused knew the cheques were forged when he caused payment of money to him by virtue of those cheques.

[14] Knowledge is a state of mind. If it is to be shown to have existed generally, it must be inferred or deduced from the relevant circumstances existing before, at the time of or even after the use by the accused of the forged instrument. Inferences are conclusions of fact rationally drawn from a combination of proved facts including any statements the accused made. In the context of a criminal trial, where proof of knowledge and intention of the Accused is required beyond reasonable doubt, you should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.

[15] On count five, the Accused is charged with money laundering. The prosecution must prove the following elements beyond reasonable doubt:

1. The Accused
   
2. Engaged directly in a transaction involving money
   
3. That is a proceed of crime
   
4. With knowledge the money was derived from some form of unlawful activity.
   

[16] The prosecution is not required to prove that the Accused committed forgery before he can be found guilty of money laundering. What the prosecution must prove beyond reasonable doubt to sustain the charge of money laundering is that the Accused knew the money was derived from forgery when he engaged in a transaction involving that money.

[17] The caution interview of the Accused is in evidence. You may read the interview for yourselves. The prosecution contends that although you should not accept everything said by the Accused in his interview nonetheless the interview contain certain admissions by the Accused and that the prosecution further contends that those admissions are true.

[18] In deciding whether you can safely rely upon the admissions, you must decide two issues:

1. Did the Accused in fact make the admissions? If you are not sure that he did, you should ignore them. If however, you are sure he did then:
   
2. Are you sure that the admissions are true? When deciding this, you should have regard to all the circumstances in which you find the admissions were or may have been made, and consider whether there were or may have been any circumstances which might cast doubt upon the reliability of those admissions. It is for you to assess what weight should be given to the admissions. If, for whatever reason you are not sure that the admissions are true, you must disregard them. If on the other hand, you are sure that they are true you may rely on them.
   

[19] 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.

[20] You recall the first prosecution witness, Rohit Shalendra Rodrik. He was a salesman at Carpenters. He gave evidence of the Accused purchasing an expensive vehicle, Holdon Manaro, for $105,000 cash in 2004. His evidence relates to a transaction in 2004 while the charges relate to transactions that allegedly occurred in 2005. I direct you to completely disregard the evidence of Rohit Shalendra Rodrik. You must also disregard any statement that the Accused made in his caution interview regarding the purchase of this vehicle. The evidence relating to the purchase of this vehicle in 2004 is irrelevant to the charges before you and therefore you must take that evidence out of your mind when you deliberate.

[21] I will 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.

[22] 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.

[23] It is not in dispute that the Accused is a Director and a majority shareholder of Honeymoon Beach Resort as of 29 July 2005. He opened an account for Honeymoon Beach Resort on 16 August 2005 at Westpac. It is not in dispute that he was a signatory to this account.

[24] Rakesh Lal from Westpac gave evidence. He said that after the account of Honeymoon Beach Resort Limited was opened, a FIRCA cheque in an amount of $178,834.92 was deposited in the account and two withdrawals in amounts of $90,000 and $60,000 were made immediately thereafter. Later he froze the account. A person called him to enquire about the account. The caller identified himself as Shalendra Singh Sinha. Mr. Lal asked the caller to meet him in person in the bank the following day but the caller failed to turn up.

[25] The next witness was Umesh Chand, a Customs Officer at Fiji Islands Revenue and Customs Authority (FIRCA). He gave evidence about the two FIRCA cheques, P40 and P42, drawn on FIRCA ANZ account. He found discrepancies in P40 and P42 for example, the name of the taxpayer was not in capital letters, the VAT Return number was not left aligned with the name of the taxpayer and the TIN number did not exist in their system, meaning that there was no taxpayer registered under that number. With reference to the cheque numbers contained in P40 and P42, Mr Chand said the numbers were obtained from cheques issued to taxpayers, Jone Veimatayaki and Pravin Kumar, respectively.

[26] The next witness was Ana Biumaiwai, who worked in the dispatch section of FIRCA. In 2005 she printed out the cheque refund reports for the purpose of printing refund cheques to the taxpayers. She said once the reports were printed, the data could not be changed.

[27] Mudhu Sudan was the General Manager, Revenue Collection in 2005. He was authorized to sign FIRCA refund cheques, together with the Commissioner. Cheques P40 and P42 contain his computer generated signature.

[28] Lopeti Tukana was the Acting Manager Operations at FIRCA in 2005. He said Honeymoon Beach Resort never lodged any returns for tax refund in 2005.

[29] Frank Saketa from Westpac gave evidence about the cheques P40 and P42. He said he requested for special answer on these cheques from ANZ upon request from a customer. After ANZ cleared the cheques, withdrawal of large amounts were made from Honeymoon Beach Resort Limited's account.

[30] The final witness was Inspector Shalesh Kumar.He He He recorded the caution interview of the Accused in which he made certain admissions.

[31] That was the prosecution case.

[32] The Accused elected to remain silent and not call any witness. Now when a person is charged with a criminal offence, he is entitled to say nothing about it. You must not hold his silence against him. The exercise of the right to silence cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.

[33] You will have to decide the charges on the prosecution evidence.

[34] On counts two and four, you will have to first decide whether the cheques P40 and P42 are forged in a sense I explained to you. If you feel sure that material alteration to P40 and P42 were made by adding the name Honeymoon Beach Resort Limited, VAT Return number, amounts and cheque number of another taxpayer, in order that they may be used as genuine, then you may accept that the documents are forged.

[35] You will then decide whether the Accused knew the cheques were forged and whether he caused payment of money to him on the forged cheques with intent to defraud?

[36] On count five, you will decide whether the Accused knew the money in Honeymoon Beach Resort Limited account was derived from forgery when he engaged in transactions of withdrawing that money from the account.

[37] The Accused in his interview said that he received the cheques P40 and P42 from two employees of FIRCA (Qs 17, 20, 73). He admits depositing the cheques into the account of Honeymoon Beach Resort Limited and then withdrawing the money for his own use and for the use of others who assisted him to obtain the cheques from FIRCA (Q24). The Accused admitted in his interview that Honeymoon Beach Resort Limited was registered for the sake of name and was not operational (Q13). He opened a bank account under the Company's name (Q16) and he withdrew money from the account mostly for his personal expenses (Q42).

[38] What weight you place on the admissions of the Accused is entirely a matter for you.

[39] The defence submits that the charges have not been proved beyond reasonable doubt and therefore Accused should be found not guilty.

[40] If you are satisfied of the guilt of the Accused beyond reasonable doubt then you will advise me that he is guilty. If you have reasonable doubt about his guilt, you must find him not guilty. Remember to consider each count separately. 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
21 October 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Office of Messrs. Haroon Ali Shah for Accused