Fiji Independent Commisssion Against Corruption v Kumar - Summing Up [2010] FJHC 59; HAC001.2009 (25 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 001 of 2009

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

AND:

JASWANT KUMAR

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

Summing Up: 25th February 2010

SUMMING UP

Madam Assessors and Gentleman Assessor

[1] It is now 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. You must accept whatever I say on the law. On the facts of this case however, which evidence to accept and which evidence you think is reliable, these are matters for you to decide for yourselves. In other words, you are the masters of fact. If I express any opinion on the facts, or if I appear to do so, you may disregard my opinion and form your own.

[2] In the course of this hearing, both counsel made strong submissions as a matter of right to you about the facts of this case. But it is a matter for you to decide which version of the facts to accept, or reject.

[3] You will not be asked to give reasons for your opinions, and 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 deliver my judgment.

[4] On the question of proof, I must direct you as a matter of law, that the onus or burden of proof lies on the prosecution. The burden remains throughout the trial upon the prosecution and never shifts. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused is presumed to be innocent until he or she is proved guilty.

[5] 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 before you express an opinion that he is guilty. If you have any reasonable doubt as to whether the accused committed the offence charged, then it is your duty to express opinions that he is not guilty. It is only if you are satisfied so that you feel sure of his guilt that you must express opinions that he is guilty.

[6] Your decisions must be based only on 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 facts adduced in evidence in the course of this trial.

[7] The trial commenced with two accused persons jointly charged with the same offences. You are no longer concerned about the case against the first accused, Rajeshwar Kumar. You must concentrate upon the case against the remaining accused in dock and decide whether the evidence before you makes you sure of his guilt.

[8] The accused is charged with one count of abuse of office and with an alternative count of embezzlement.

[9] You need only to consider the alternative count of embezzlement if you reach an opinion of not guilty on the charge of abuse of office. If you are satisfied of the accused’s guilt beyond a reasonable doubt on count one then you must not consider the alternative count.

[10] For the offence of abuse of office the prosecution alleges that the accused whilst being employed in the Public Service as Acting Town Clerk of the Nasinu Town Council, in the course of or in relation to his public office and in abuse of the authority of that office, did an arbitrary act in that he 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.

[11] The offence of abuse of office has four elements:

1. The accused was employed in the public service;

2. He did an arbitrary act;

3. He acted in abuse of the authority of his office;

4. The act was prejudicial to the rights of another person.

[12] In this case, all four elements are in dispute. The prosecution must prove each element beyond reasonable doubt.

[13] It is not in dispute that in 2006, the accused was the Acting Town Clerk of the Nasinu Town Council. A town council is a body that is created by the Local Government Act. If you accept that the accused was the Acting Town Clerk of the Nasinu Town Council, then as a matter of law, I direct you that a town clerk is a person employed in the public service. You may think the first element is proven.

[14] The second element is that the accused did an arbitrary act. In law, an arbitrary act is an unreasonable act, a despotic act, act which is not guided by rules and regulations but by the wishes of the accused. Let me give you an example. In the judiciary, the court clerks have procedures which must be followed before accepting documents for filing in the registry. If one clerk decided to ignore the procedures of filing, and receive documents, that would be an arbitrary act. That is because the act is guided by the wishes of the clerk and not by proper filing procedures.

[15] The third element of the offence is that the act must be in abuse of the authority of office. When someone abuses the authority of his office, he uses his position for some illegitimate agenda, some reason which is not a proper reason according to institutional procedure. He acts in bad faith, for an improper motive to harm someone or show someone an advantage or favour. So, for instance, returning to the clerk, if he ignores the filing procedures for one particular law firm who financially sponsors the social rugby team he plays for, he would be abusing the authority of his office. To decide what is an abuse of office, you need to consider what motivated the accused to act in the way he did. If he had some improper motive or acted in bad faith and used his position to achieve that motive, then this element is proven. In order to understand what the accused had in his mind, you need to look at all the evidence and draw your own conclusions about his motives. His motives may lead you to decide whether he acted in abuse of office or not.

[16] The last element is that his act must have prejudiced the rights of another. When a person is prejudiced, his interests are put at a disadvantage. Generally, all town councils are expected to run in an accountable manner without any kind of abuse of funds in their control.

[17] The Nasinu Town Council has a right not to be exposed to allegations of abuse of funds in its control. This is because the funds in control of the Council are ratepayers’ money. So the question for you is whether the accused’s actions prejudiced the rights of the Nasinu Town Council when the cheque no. 1045 (P2) drawn on the Council’s account was cashed at the bank and not paid to Post Fiji Limited.

[18] The law also provides that where the arbitrary act is done for the purpose of gain, he is guilty of a felony. So you are also required to consider whether the accused acted for gain.

[19] For the alternative count of embezzlement the prosecution alleges that the accused whilst being appointed to serve under the Nasinu Town Council as Acting Town Clerk, fraudulently disposed of the sum of $2,344.42 received by him (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 him.

[20] The elements of embezzlement in the context of this case are:

1. The accused was an employee;

2. He received money on the account of his employer;

3. He dishonestly disposed or diverted the money for his own use.

[21] 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.

[23] The prosecution relies upon the circumstantial evidence to prove the improper motives and dishonest intentions of the accused when he raised the cash cheque payment in the sum of $2,344.42 on 26 May 2006. The prosecution is asking you to draw an inference that the accused cashed the cheque no. 1045 for his use. Of course, there is no direct evidence as to who cashed the cheque no.1045. Circumstantial evidence is when you are asked to look at a number of different circumstances in the case to draw your own conclusions about the guilt of the accused. Circumstantial evidence can be powerful evidence, but it is important that you consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. You should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that. In this case you must ask yourselves whether on all the evidence the only reasonable conclusion you can draw from the circumstances is the guilt of the accused. You must be satisfied beyond reasonable doubt so as to feel sure that there is no other reasonable explanation for the circumstances which is consistent with the accused’s innocence.

[24] The prosecution relies on lies by the accused to support the case against him. It is alleged that the accused lied to the Nasinu Town Council when he was asked to explain the missing payment to Post Fiji in relation to the cheque no.1045. The explanations are contained in an internal memorandum dated 12 March 2007 to the Chief Executive Officer (P17). The prosecution says that in the memorandum the accused said the reason he made the cheque no.1045 cash, is because he had a discussion with one Mr. Meli from Post Fiji who wanted the Council to write cash cheques when making payments to Post Fiji. The prosecution says this is a lie because no one by the name Meli was employed by Post Fiji and that Post Fiji never had a policy of receiving cash cheques from the Nasinu Town Council. The prosecution further points out that in his evidence the accused said that the reason he made the cheque no.1045 cash was on the request of Mere Namanu who needed urgent stationeries from Post Fiji. In this case, the accused denies any lie. In this regard you should consider two questions. You must decide whether the accused deliberately told lies. If you are not sure he did, ignore this matter. If you are sure then consider why did the accused lie? The mere fact that an accused tells a lie is not in itself evidence of guilt. An accused may lie for many reasons, and they may possible be "innocent" ones in the sense that they do not denote guilt, for example, out of panic, distress or confusion. If you think that there is, or may be, an innocent explanation for his lies then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason that his lies can be regarded by you as evidence supporting the prosecution case.

[25] I will now remind you of the evidence led by the prosecution and the defence. 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.

The Prosecution Case

[26] The first prosecution witness was Mosese Kama. In 2006 Mr. Kama was the Director of Local Government. His responsibility was to monitor all the municipal councils and give them appropriate advice under the Local Government Act. Each council is supposed to have accounting procedures in place. Mr. Kama said the accounting procedures of councils should comply with the Local Government Act. He is aware of a manual of accounts for municipal councils in Fiji known as "Bhim Manual" (D1) but said there was no directive by his Ministry to the councils to implement it.

[27] The second witness was Shital Prasad, a bank teller at Westpac bank, Nabua branch in 2006. Ms Prasad cashed the cheque no. 1045 (P2) on 26 May 2006 at around 4.23 pm. The cheque was drawn on the Nasinu Town Council’s account. Since the cheque was in excess of $1,000, Ms Prasad sought approval from her supervisor and cashed the cheque. She does not recall who presented the cheque.

[28] In cross-examination Ms Prasad said the cheque was cashed after the bank had closed because the Nasinu Town Council was a big customer. She said the identity of the presenter is not necessary in a case of a cash cheque.

[29] The third witness was Epeli Racule. Mr. Racule is an employee of the Westpac Bank. He tendered the Notice of Authority (P6) to operate the Nasinu Town Council’s account. The persons authorized to operate on the account and sign the cheques were Rajeshwar Kumar (Mayor), Chandra Shekhar (Town Clerk/CEO) and Jaswant Kumar (Manager Finance). These authorized persons were to act in the following manner: Mayor or Finance Chairman and Town Clerk/CEO or Manager Finance.

[30] The fourth witness was Vinita Prasad. She was attached to the Nasinu Town Council in December 2005. Later in 2006 she became a permanent staff and held the position of accounts officer. Her duties included preparing payment vouchers and cheques. She said the procedure for raising a cheque was to first prepare a payment voucher and after the supervisor had verified the voucher, the cheque is written and taken to the authorized signatories to sign. Payment vouchers were raised on the basis of invoices. She said she got the procedure from the accused who was her supervisor. Only two of them worked in the accounts section. Ms Prasad said she approached the accused and informed him about the cheque no. 1045 when she learnt that Post Fiji had not received the cheque. Ms Prasad gave conflicting evidence about how she came to know about cheque no. 1045. First she said she made an enquiry with Post Fiji and then in cross examination she said she received a call from Post Fiji about a non-payment. She cannot recall the caller.

[31] Further, when Ms Prasad was asked whether the proper procedures were followed to raise the payment voucher (P6) and the cheque no.1045 (P2), she said that she could not say whether the procedures were followed properly. At this stage, the prosecution was allowed to treat her as a "hostile witness’ – a witness who had in effect changed sides, and to cross examine her to show that she had given an account on a previous occasion which was inconsistent with the account which she gave in court. In her statement to FICAC which is (P13) she said the procedures were not followed to raise the payment voucher (P6) and the cheque (P2). When she was cross examined on her statement, she said the procedures were violated when no proper identity, name and the signature of the receiver of the cheque was not entered on the payment voucher. She adopted her statement in evidence.

[32] She was cross examined at length by the defence regarding her previous inconsistent statement. In re-examination, she explained that after she had given her statement to FICAC, another statement was obtained from her in Mr. Chaudhary’s office. She said that she feared losing her job because the Mayor and the accused were present when her statement was obtained.

[33] You may take into account any inconsistency and Ms Prasad’s explanation for it when considering her reliability as a witness. It is for you to judge the extent and importance of any inconsistency. If you conclude that there is a serious conflict between the account she gave in court and her previous account, you may think that you should reject her evidence altogether and not rely on anything said by her either on the previous occasion or when giving evidence.

[34] However, if after careful consideration, you are sure that you can rely on all or part of what she said on previous occasion or when giving evidence, you take it into consideration in reaching your opinions.

[35] The next witness was Adrian Prasad. He was part of the government audit team that conducted the audit of the accounts of the Nasinu Town Council. The relevant audit findings are contained in page 11 of the audit report (D4). What weight you attach to those findings is a matter for you.

[36] The next witness was Gyanendra Krishna, Financial Accountant for Post Fiji. His enquiries revealed that no one by the name of Meli was employed by Post Fiji. He said there was no record of the cheque no. 1045 received by Post Fiji. Nor was any cash payment in the sum of $2,344.42 received by Post Fiji. He said three subsequent cheque payments totaling $2,344.42 were made to Post Fiji. The three cheques were non negotiable cheques. He said payments to Post Fiji by the Nasinu Town Council were only made by non negotiable cheques. He said that Post Fiji did not receive cash payments from the Nasinu Town Council.

[37] The next witness was Anil Maharaj, a senior investigating officer at FICAC. He seized the documentary exhibits in this case.

[38] That is the evidence for the prosecution.

The Defence Case

[39] At the end of the prosecution case, the accused was advised of certain options. He could have remained silent, he could have made unsworn statements, or he could have given sworn evidence from the witness box. He had these options because an accused person does not have to prove anything. The burden of proving the guilt rests on the prosecution and never shifts.

[40] The accused chose to give evidence. That is, of course his right. He subjected himself to cross examination by the prosecution. You are entitled to take this into account in deciding what weight to put on his evidence.

[41] 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.

[42] The accused said he was appointed the Acting Town Clerk of the Nasinu Town Council in May 2006. At that time he was also holding the portfolio of the Manager Finance. His duties as the Manager Finance were contained in an internal Memorandum of the Council (D9(A)). His duty included making payments.

[43] As the Manager Finance, he reported to the Town Clerk. He was not given any finance manual to follow. To his knowledge, the Nasinu Town Council had not adopted the "Bhim Manual" (D1). He adopted the procedures that existed in the Nasinu Town Council when he was first appointed in September 2003.

[44] The accused said he was aware of an arrangement between the Nasinu Town Council and Post Fiji for the employees of the Council to purchase school stationeries from Post Fiji and the Council would make payments after making deductions from the staff salaries. The accused said the payment voucher for cheque no. 1045 (P6) was raised by him to pay Post Fiji. He signed the voucher for the Town Clerk as he was acting in that position. He did not get the voucher certified because only a person senior to him could have certified it. He said at the time there was no senior staff available in the office to certify the voucher. He wrote the cheque no. 1045 together with three other cheques. He left the cheques in his outbound tray for the Mayor to sign. He did not see the cheque no.1045 after it was left in the tray to be taken to the Mayor to sign. He wrote the name "Vinita" on the payment voucher thinking that she was going to take the cheque to the Mayor. He does not know who took the cheque to the Mayor. He does not know who released the cheque no. 1045 from the office of the Council.

[45] He said the person who released the cheque should have taken the identity of the recipient on the voucher. It was not his responsibility to disburse cheques. He said he raised the payment voucher (P6) on the basis of invoices which he attached to the voucher. When the auditors saw the payment voucher (P6), the invoices were attached. He does not know what had happened to the invoices.

[46] The accused said he wrote a Memorandum (P17) explaining what may have happened to the cheque no. 1045 (P2). The cheque was made cash upon request from Mere Namanu who wanted to purchase books from Post Fiji for her grandchildren. Mere Namanu and one Laitia had the authority to handle cheques.

[47] A month after the cheque no. 1045 was made, the accused said he signed three more cheques (P3, P4 & P5) payable to Post Fiji. He said he had no knowledge that these three cheques were made to cover up for the missing payment of cheque no. 1045.

[48] He denied giving instructions to Vinita Prasad to raise these three cheques. When he learnt about the double payment to Post Fiji, he referred the matter to the Council to investigate. He said when the Council started an investigation, Mere Namanu left the Council without giving any reasons. He agreed to reimburse the Council because he was held responsible as the head of the Finance Department and was surcharged by the Council. He left the Council in September 2007. He was not asked by anyone for his comments on the audit findings contained in the audit report (D4).

[49] The second defence witness was Rohini Lata. She was the personal secretary to the Mayor of the Nasinu Town Council. She said any signing of the cheques by the Mayor had to go through her. She said that Vinita Prasad and Mere Namanu used to bring cheques for the Mayor’s signature. At times Mere Namanu used to pick up the cheques after the Mayor had signed them. She said Mere Namanu was eager to get cheque no. 1045 signed by the Mayor. She told Vinita Prasad to make arrangement for the cheque to be signed at the Mayor’s house because he was not well on that particular day.

[50] In cross-examination, Rohini Lata said she recalls a Post Fiji cheque and not the cheque number. She did not see the cheque. She only recalls the cheque by what she was told.

[51] The third defence witness was Rajeshwar Kumar, the Mayor of the Nasinu Town Council. He said the "Bhim Manual" (P1) was not adopted by the Council. When he was elected the Mayor, the Council continued to use the then existing accounting procedures. He said the Council used to write cash cheques upon request from customers.

[52] He signed the cheque no. 1045 at his home. The cheque was accompanied by a payment voucher and invoices when he signed it. He signed more than one cheque on that day. The documents were brought to his home because he was sick. He said the accused called him and told him that a staff needed school books for her children. It was the Council that decided to surcharge the accused. The accused did not have any input into the Council’s decision to surcharge him.

[53] In cross-examination, Rajeshwar Prasad said if the amount in the cheque no. 1045 was not recovered, then the Council had lost the money. He said the accused told him that Post Fiji needed a cash cheque on 26 May 2006 when the cheque no. 1045 was signed.

[54] That was the evidence for the defence.

Analysis

[55] It is not in dispute that the payment voucher for the cheque no.1045 and the cheque in itself were raised by the accused as the acting Town Clerk of the Nasinu Town Council. What is in dispute is whether the accused acted arbitrarily, in abuse of authority of his office, and whether the act of the accused prejudiced the rights of the Nasinu Town Council.

[56] The prosecution says that the accused abused the authority of his office when he raised the cheque no. 1045 and the corresponding payment voucher. The prosecution says the motive for raising the cheque, cash, was to divert the payment to himself and not to pay Post Fiji. The prosecution says that in raising the payment, he acted unreasonably and arbitrarily and that he did so for the purpose of gain. The prosecution says that the only reasonable inference from the manner in which the payment voucher and the cheque were raised, is that the accused raised the payment to divert the funds for his use. The prosecution says that the Nasinu Town Council lost money when the cheque was cashed at the bank and not paid to Post Fiji. The prosecution says that the Council had to make another payment for the same amount when the payment of cheque no.1045 was not delivered to Post Fiji. The prosecution says the Council was prejudiced by the arbitrary act of the accused.

[57] The defence says the accused did not act arbitrarily. The defence says that the accused raised the payment voucher on the basis of invoices which he attached with the voucher. The accused did not get the payment voucher certified because nobody senior to him was available in the office on that day. He raised the cheque, cash, upon request of Mere Namanu who urgently required stationeries from Post Fiji. He left the cheque in his tray for the Mayor to sign. He did not see the cheque again as it was not his responsibility to disburse cheques. The defence says that the accused did not break any rules. He followed the then existing procedures at the Council when he raised the cheque no.1045. The defence says that the accused made some reimbursements because the Council surcharged him. The defence says that the accused did not have any say in the Council’s decision to hold him responsible as the head of the Finance at the Council. The defence says that the auditors did not seek the accused’s comments when adverse findings were made against him regarding the raising of cheque no.1045 in the audit report. The defence says that the accused did not act with improper motives. He did not conceal anything from the Council. The defence says that the motive of the accused was to help Mere Namanu who was in desperate need for stationeries. That is why the cheque was made cash. The defence says that the accused did not divert the payment from Post Fiji to himself. The defence says that other reasonable inferences are available as to who could have cashed the cheque and that you cannot draw the only reasonable inference that the accused cashed the cheque.

[58] For the alternative count, the prosecution says that he received the funds of the Nasinu Town Council in his capacity as the Acting Town Clerk when he dishonestly diverted the sum of $2,344.42 for his own use.

[59] The defence says that the accused did not receive any funds on the account of the Nasinu Town Council and that he did not divert any money of the Council for his use.

[60] What version of the facts you accept is a matter for you. What weight you put on the evidence is a matter for you. Remember the accused does not carry any burden of proof. If you feel sure of the accused’s guilt, then the proper opinion is guilty. If you are not sure of his guilt then you must find him not guilty. Remember to consider the alternative count only if you reach an opinion that the accused is not guilty on count 1. Your opinions are either guilty, or not guilty. If your opinions are guilty on count 1, you will each be asked also if in your opinions he abused the authority of his office for gain. Your answers will be either yes or no.

[61] That concludes my summing up of the law and the evidence in this particular trial.

[62] We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charge. Take as much time as you wish.

[63] On your return you will each be asked separately to state in Court your opinion as to whether the accused is guilty or not guilty of the charge.

[64] Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court Clerk and the Court will reconvene to receive your opinions?

Daniel Goundar
JUDGE

At Suva
25th February 2010