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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 24 OF 2010
STATE
vs
Ms N. Tikoisuva with Mr. W. Pillay for the State
First and Second Accused absent
Mr. H.A. Shah for the 3rd and 6th Accused
Fourth Accused in Person
Mr. I. Khan for the 5th Accused
SUMMING UP
[1] Ladies and Gentleman assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.
[2] Our functions have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.
[3] The facts of this case are your responsibility. You will wish to take into account the arguments in the speeches you have heard from Counsel but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts. As I said, you don't have to accept what Counsel said in their speeches. In particular I want to refer you to Mr. Khan's submission to you that you are to take into account what Senimili said in a statement she made to the Police. You will recall that in her evidence in Court she said that she received the fax and couldn't remember where she got it from. She said Shirley was pushing her to process it by saying "have you done the transfer?
Those people can't stop calling me" and that 5th accused came to her desk and said to do it right away. Now Senimili admitted she didn't tell the Police all of that in her statement to them.
I now direct you, that whatever Senimili said in Court is the best evidence and you are to disregard what she told the Police. You are to disregard Mr. Khan's submission that you must rely on what she said to the Police. However, if you think that the two versions are so inconsistent with each other, you might think that she is not a witness you can rely on; and you will give her Court evidence little weight. It is a matter for you.
[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.
[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences; that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.
[6] To assist you in examining the counts, the State has, with the consent of Counsel, provided you with a schedule of the cheques referred to in the trial with dates and particulars of where the cheques went. This is just an "aide memoire" for you and is not as Mr. Khan says evidence. It is not "evidence" for you to find that the 5th accused received nothing. Although there is no evidence that the 5th accused received any of the forged cheques, the schedule is not evidence for that.
[7] In assessing the evidence, you are at liberty to accept the whole of a witness' evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable?
[8] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.
[9] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately.
Onus and Burden of Proof
[10] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.
[11] How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. That is the same as beyond reasonable doubt as Counsel have submitted to you. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".
[12] These six accused face, in different combinations, thirty three counts. You have copies of the information before you and of course it looks to be a daunting task to sift through these thirty three counts in the process of your deliberations. I propose to help you do that in my summary to you of the law involved and when I do that you will see how the information falls into logical blocks.
[13] However in looking at the information you must consider the case against and for each defendant separately; just as you must consider each count separately. Just because you think that an accused is guilty of one count does not necessarily mean he is guilty of every count that he is charged with.
[14] I wish to speak to you about the first and second accused who are not here and have not been here during the trial.
(a) You have obviously heard no evidence from them. Even if they were here it would have been their right to remain silent and to require the prosecution to make you sure of their guilt; there is no burden on either of them to prove anything.
(b) You must not assume that an absent accused is guilty because he is not here: his absence does not help the prosecution to prove its case against him in any way at all.
(c) Equally you must not speculate or guess as to the reasons for his absence, and you must not hold his absence against him.
(d) You try this case according to the evidence, and you will assess it just as carefully as you would have done if the two accused were here.
(e) But you will appreciate that there is no evidence from either of them at this trial to undermine, contradict or explain the evidence put before you by the prosecution.[1]
[15] The first count is a general count of conspiracy charged against every one of the six accused (including the first and second accused who are not present, but you will still consider the case against them).
[16] What then ladies and gentleman, is a conspiracy?
Conspiracy
[17] Just as it is a criminal offence to forge documents, obtain money by fraud or forgery etc, so it is a criminal offence for two or more persons to agree with one another to commit those offences. An agreement to commit an offence or offences is called a conspiracy; and that is the offence which is charged here.
Before you can convict any of these accused of this offence, you must be sure:
[18] You may think it is only in a very rare case that a Court would receive direct evidence of a criminal conspiracy (e.g. direct or eye witness evidence). When people make agreements to commit crimes you would expect them to do so in private. You would not expect them to agree to commit crime in front of others or to put their agreement into writing. But people may act together to bring about a particular result in such a way as to leave no doubt that they are carrying out an earlier agreement.
[19] Accordingly, in deciding whether there was a criminal conspiracy, and if so whether the defendant whose case you are considering was a party to it, look at all the evidence as to what occurred during the relevant period including the behaviour of each of the other accused. If having done so you are sure that there was a conspiracy and that he was a party to it, you must convict. If you are not sure, you must acquit.
[20] When criminal conspiracies are formed it may well happen that one of more of the conspirators is more deeply involved in and has a greater knowledge of the overall plan than the others. Also a person may agree to join in the conspiracy after it has been formed or he may drop out of it before the crime has been fully carried out. Providing you are sure in the case of any accused then he or she did at some stage agree with a named co-conspirator that the fraud should be committed and at that time intended that it should be carried out, it does not matter precisely where his involvement appears on the scale of seriousness or precisely when he or she became involved, he or she is guilty as charged. The conspiracy is to defraud; it is not, as Mr. Khan says, a conspiracy to cause payment to each and every one of the conspirators. They are charged as a group, of a conspiracy to benefit as a group. The fact that there is no evidence that the 5th accused received any cheques into her account is irrelevant.
[21] And so what the State is saying to you is that each one of these accused did at some time between the 1st April 2006 and the end of December 2007 agree with at least one other to defraud SPOR Fiji (or Turtle Island) and when they did agree they intended to act to carry out that fraud. The State says that all of the evidence produced in this trial leads to the conclusion that such a conspiracy was entered into, with the intention of carrying it out and they ask you to examine each piece of evidence against each of the accused in deciding that issue. Remember, it doesn't matter when an accused agreed to defraud SPOR, he or she doesn't have to have been in on the fraud from the very beginning. As long as, at some particular stage, within the period of the conspiracy, the accused person whose case you are looking at agreed to defraud SPOR and intended to carry that agreement through.
[22] In this conspiracy count and again in many of the other counts the State is relying on what we call "circumstantial evidence", to prove that the accused are guilty. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and each accused which they say when taken together will lead to the sure conclusion that it was the accused whose case you are looking at committed the crime.
[23] Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and 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. Finally 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.
[24] After the general conspiracy count, there follows in the information a block of counts against the first accused alone; counts two to counts thirteen. These twelve counts can in turn be broken into four groups, each group containing a forgery count, an uttering count and an obtaining money by virtue of forged documents count. Before examining those counts in more detail, I must now direct you on the law of those respective offences.
[25] Forgery is committed when a person without authority makes a document or alters a document. In other words he creates a false document. A document is false if, in a material respect it tells a lie about itself. Changing the name of the payees without authority is forgery, as is signing the cheque without authority. The State must prove to you that the accused made a false document, that he knew that the document was false and thirdly that he intended that the document be acted upon as if it were genuine.
[26] Uttering a document is one of those funny legal terms and all it means really is "using". The State is alleging that the accused forged cheques and then uttered them, that is that he used them by paying them into his bank account and into the bank accounts of others.
[27] The third type of offending that the accused is charged within this section of the information, is obtaining money by virtue of forged documents. To prove this crime the State must prove to you, so that you are sure:
(i) that it was the particular accused named,
(ii) with an intent to defraud,
(iii) obtained credit to his account,
(iv) by virtue of forged cheques.
[28] So then ladies and gentleman, if you find that the first accused forged SPOR cheques and that he banked them into his account and as a result he got credit in his account for that, then you will find he is guilty of all three offences charged; that is forgery, uttering and obtaining on forged documents.
[29] Shall we then examine the evidence for these particular allegations?
EVIDENCE
[30] At the beginning of this trial, the record of proceedings in the Magistrates' Court (Exhibit P1) was read to you. Those proceedings concerned the evidence of the owner of Turtle Island. He gave evidence in that manner, rather than giving it in this trial because he is extremely ill and it was not known if he would be well enough to come and give evidence before you. All of these accused were present when the owner gave evidence as was Mr. Shah who at that time was acting for three of the accused but not the 1st accused.
[31] Mr. Evanson, that is the owner, gave sworn evidence first that he knew Shirley the 5th accused from his dealings with her at ANZ. He told her that he needed an accountant on the Island and she recommended her brother the first accused, and he was so employed. Mr. Evanson said that he discovered that from the very first week of his employment the first accused forged documents and cheques and he found that he had forged a total of 84 cheques amounting to a total of $840,000. He said of those 84, on 46 he wrote his own name as payee and the remainder he wrote in favour of family members and friends. Mr. Evanson said that he never verified cheques that were written for less than $10,000 so the first accused would take blank company cheques, and write his name as the payee for sums slightly less than $10,000, forge his (that is Mr. Evanson's signature) and then bank them.
[32] Mr. Evanson then finished that general part of his evidence before the Magistrate, and not one of the accused, nor Mr. Shah, cross-examined the witness, that is to say challenged his evidence. The first and sixth accused who were unrepresented had the evidence explained and summarized to them.
[33] Mr. Evanson then produced a statement into the record, with the consent of all accused, where he examined seventy nine cheques in total and concluded that they were all unauthorized forgeries.
[34] Mr. Evanson dealt with every cheque listed in the second count and told the Court that on each of them Anand Kumar (that is the first accused) had forged his signature without his authority. He said that on every one of those cheques the first accused had also forged the name of the payee on the cheque. None of this evidence was challenged by any of the accused and you may then, members of the panel, have no difficulty in finding that all of the cheques listed in the second count were forged by the first accused.
[35] If you find, so that you are sure, that these cheques were forged by Anand, the first accused, you will then go on to consider whether he did in fact make use of these cheques, that is to say utter them, which is the basis of the third count and if whether he got money by doing so (fourth count).
[36] We have heard evidence from bank officers from Colonial (as it was then called) and from Westpac that every one of those cheques (listed in Count 2) was deposited and credited to Anand's account either with the ANZ or with the Westpac and they have produced deposit slips in evidence to show us that. The first accused's account was thereby credited and the balance obviously increased and you might well be able to say from that evidence that he did obtain money by virtue of the forged documents, that is the cheques.
[37] The fifth, sixth and seventh counts are another series of alleged forgery, uttering and obtaining and you may wish to adopt the same reasoning that you used on the first cycle in deciding whether the State has proved to you, so that you are sure, that the 1st accused forged this second batch of cheques, uttered them and thereby got credit to his bank accounts.
Bear in mind that there is undisputed evidence from Mr. Evanson that all these cheques in the second cycle were forged by the first accused.
[38] We then have two more identical cycles of alleged forgery, uttering and obtaining. The third cycle being counts eight, nine and ten and the fourth cycle being counts eleven, twelve and thirteen. The same directions and comments I have made earlier are equally applicable to these two later cycles.
[39] Beginning with the fourteenth count there come eight counts jointly charging the 1st and the 4th accused with four groups of forgery and causing payment of money by virtue of a forged document. Now these cheques are different from what we have been looking at in the earlier counts because Mr. Evanson tells us in his evidence that they were genuine cheques signed by him but after they left his hands the name of the payee was altered on each one, and sometimes the date and the amount. These alterations were initiated but they are not his initials. All of the cheques are altered to be payable to Shahil and Shohil Grocery and Machinery which we have heard is the name of the Deo Narayan Singh's (the 4th accused's business). Unlike with the earlier cheques, Mr. Evanson has not categorically said that these alterations were done by Anand, the first accused. He did however suggest that it was him, by saying in his evidence this (at paragraph 19 of Exhibit 1)-
"He (referring to the first accused) would then take the cheque and replace the payee's name with his name or amount (in some cases it was Shohill Company in Sigatoka). He would alter the amount for high amounts. He would forge my signature at the alterations."
[40] This then ladies and gentleman produces another fact for you to find in your deliberations. Were the alterations to these Shahil and Shohil cheques' made by the first accused, if you think not or you can't be sure, then you will find the first accused not guilty of counts 14 to 21.
[41] The State is not saying that the 1st accused and the 4th accused sat down together and forged the cheque so I now direct you on the law of parties acting together. In law it is called joint enterprise or sometimes common enterprise. The prosecution's case is that the first and fourth accused committed these eight offences together. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are in it together, as part of a joint plan and or agreement to commit it, they are each guilty.
[42] The words "plan" and "agreement" do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing need be said at all. It can be made with a nod and a wink, or a knowing look. An agreement can be inferred from the behaviour of the parties.
[43] The essence of joint responsibility for a criminal offence is that each defendant shared the intention to commit the offence and took some part in it (however great or small) so as to achieve that aim.
[44] Your approach to this part of the case should therefore be as follows: if, looking at the case of either 1st or 4th accused, you are sure that with the intention I have mentioned he took part in committing it, he is guilty. If you are not sure, you will find him not guilty.
[45] It must be your first task to decide whether it was the first accused who altered these cheques to read "Shahill and Shohill Grocery", and if you so find then you will ask yourself was the fourth accused "in on it" – had he agreed that those alterations could be made, putting his company name on the cheques as payee.
[46] The second offence alleged in this cycle against the 1st and 4th accused is the count of "causing payment of money by virtue of a forged document".
The State alleges that these cheques, being forged (that is by having the payee's name altered) were thus paid into Shahill and Shohill's Grocery account thereby giving the 4th accused payment of money. To prove this offence the State must show you so that you are sure –
(1) that those cheques were forged.
(2) 1st and 4th accused knew that they were forged.
(3) they were paid into Shahil or Shohil's account.
There has been evidence from the bank that they were in fact paid into the Shahil & Shohil account; there is evidence from Mr. Evanson that they were in fact forged so the only finding that you have to make for counts fifteen, seventeen and nineteen is whether the 1st accused and the 4th accused knew that the cheques were forged.
[47] Counts twenty two and twenty three allege forgery and obtaining money by that forgery against the first accused and the third accused. There is undisputed evidence from Mr. Evanson that all of these cheques were forged. The signature on them is not his.
There is banking evidence that these cheques were paid into the third accused's account, it is for you to decide in count 22, whether the 3rd accused was a party to the forgery, that is whether he had agreed that his name by used as a payee, and secondly whether the third accused knew that the cheques were forged when he banked them and whether he intended to defraud SPOR Fiji by doing so. Remember that he gave evidence telling us that he "gave away" his account to the first accused and knew nothing about the forged cheques. This is evidence for your to consider and I will come back to that.
[48] You will conduct a similar exercise with counts twenty four and twenty five, relating to the first accused and the second accused. Once again Mr. Evanson has said that his signature has been forged on every one of these cheques – evidence that was not disputed. You will decide whether the second accused agreed to these cheques being forged and whether when he banked them to the credit of his account whether he knew the cheques were forged and whether he intended to defraud SPOR (Fiji).
[49] Counts 26 and 27 represent two similar offences involving a person with the name of Arun Kumar Prasad. The only difference here is that Arun Kumar Prasad has not been charged, so you will have to make a finding of guilty or not guilty against the first accused alone. Mr. Evanson has said that his signature has been forged on each cheque listed and that SPOR did not have cause to make any payment to a person called Arun Kumar Prasad. To find the first accused guilty of each of these two counts, you must find that it was he who forged the cheques and that he intended to defraud SPOR by arranging for them to be credited to Arun Kumar's account.
[50] The last six counts in the information are counts of money laundering against the first accused and the fourth and sixth accused.
[51] In law, a person is said to be money laundering if –
(i) that person engages, directly or indirectly in a transaction that involves money or other property that it the proceeds of crime; and
(ii) that that person knows, or ought reasonably to know that the money is derived, directly or indirectly, from some form of illegal activities.
[52] The twenty eighth and twenty ninth counts charge the 1st, 4th and 6th accused with money laundering monies through Atishma's (i.e. the 6th accused's) Colonial Bank account, first by depositing therein a total of $16,000 in January and February, 2008 and secondly by making cash withdrawals of $17,250 in November, 2008. The State says that the circumstances are such that all three of these accused must have known, or at least reasonably have known that these were not legitimate funds. However that is a matter for you to decide. The 6th accused says that the monies were all legitimate – some of the deposits were income from her sale of liquor in her shop at Sigatoka – some of the deposits were funds given to her by her husband to bank because the first accused was selling groceries to Turtle Island and these were the proceeds. Again this is an issue of fact for you to decide.
[53] There is evidence before you that all three were involved be it directly or indirectly, in these deposits into Atishma's account and also in the withdrawals from the account. It is for you to say whether they knew or ought reasonably to have known that the source of the funds was from illegal activity. If you find that one, two or all of these three accused had that knowledge, or ought reasonably to have that knowledge, then you will find that accused guilty. If you are not sure you will find him or her not guilty.
[54] Count 30 alleges that the first accused was money laundering when he bought the property at Savunawai in the name of his mother for $142,000.00. Again it is for you to decide if Anand knew that the money used for this purpose was obtained through illegal activity. Although it is of course a matter for you, you may wish to bear in mind that at the time Anand was working at Turtle Island earning $345 a fortnight, and it is an agreed fact that he took no loans from SPOR during the time of his employment.
[55] Count 31 makes similar allegations of money laundering against the fourth accused in respect of a vehicle EK 997 that he bought from Nazat Ali in Samabula. Did he know or ought he reasonably have known that the money he used was derived from illegal activity?
[56] Count 32, is another money laundering allegation against the first accused for the purchase of FB 384 for $21,450 which he had transferred to his mother Bhagwati; and the last count 33, is a money laundering allegations against the 1st accused for his purchase on 15th July 2007 of FF 171 for $20,000. In both of these incidents you will assess whether the first accused was aware or ought to have been aware that the funds he was using to buy these two vehicles were unlawfully obtained.
[57] The 4th, 5th and 6th accused were involved in interviews of various kinds, where they gave answers that were partly excuses and partly admissions to elements of various offences. The things that a person being interviewed, says, is evidence for you to consider in your wider deliberations however I repeat the directions I gave you during the trial. The things that the person being interviewed says can only be used in evidence for and against that person, and nobody else. That is why a couple of the interviews you have seen were edited. You may think that this was rather a fatuous exercise; for example when the 6th accused says: "I went to the bank with my "blank" and "blank", this was soon after watching the video of the 6th accused going to the bank in Sigatoka with her husband and the first accused. However, I am sure that Counsel were acting out of extreme caution. Even if you think you know who blank is, it doesn't matter. Although there may be plenty of other evidence against the person who you think is blank, you can't use the interview. In any event you are not to speculate. The second interview made by the fourth accused had so many deletions in it, that it was made meaningless and in any event he was being interviewed on matters totally separate from the matters he faces in this trial. I direct you to ignore that interview in your deliberations.
[58] The fifth accused has raised issues for you to consider in the two interviews that she conducted with the investigators of the ANZ Bank. Through her Counsel, questions were put to Miss Padarath suggesting that she was threatened with humiliation of public police arrest if she did not co-operate in the interview, and that she only co-operated because of these threats. Ms Padarath denied that any such threats were made. Matters put in cross examination but denied, are not evidence, nor is there any evidence from the 5th accused on this matter, so it is an issue you can put to one side and safely consider the two interviews as evidence in the normal way.
[59] At the end of the prosecution case, you heard me explain to the accused their options in defence.
[60] The third accused chose to give evidence. He was not obliged to give evidence. He does not have to prove his innocence. He does not have to prove anything. However he did choose to give evidence and you must take what he has said into account when considering the issues of fact which you have to determine. It is for you to decide whether you believe the evidence of the 3rd accused or whether it may be true. If the account given by him is or may be true, then this accused must be acquitted. But even if you entirely reject the account given by the 3rd accused, that would not relieve the prosecution of its burden of making you sure by evidence of this accused's guilt in respect of each of the counts he faces. The third accused told you that he knew nothing about forged cheques but he just opened the account at the request of the first accused and gave him (the 1st accused) his card and P.I.N. number. He had no idea about any of the transactions in the account – he trusted the 1st accused entirely. He never had any meetings or dealings with the 5th accused and he never planned anything with the 1st accused.
[61] The fourth, fifth and sixth accused did not give evidence. They do not have to give evidence. Each of them is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he or she is guilty because he or she has not given evidence. The fact that evidence was not given proves nothing one way or the other. It does nothing to establish his or her guilt. You still have to decide whether, on the prosecution's evidence you are sure of the guilt of the fourth, fifth and sixth accused and for that matter of the first and second accused as well.
[62] Ladies and gentleman; that this is the end of my Summing Up to you on the law, the charges, and aspects of the evidence. Before I send you out to deliberate however, I must remind you of three very important principles:
(1) You must be sure before you find any of these accused guilty.
(2) You do not have to accept or agree with anything I have said about the facts
(3) If you are not sure about a particular charge or a particular accused within that charge you will return a verdict of not guilty on that charge or against that particular accused.
[63] You can have as much time as you wish to deliberate. It is better if you are all agreed on your verdicts, but you don't have to be. You will be asked one by one for individual verdicts against each accused, named in each count. You will let one of the Court Staff know when you are ready and I will reconvene the Court.
[64] Any redirections?
Paul K. Madigan
Judge
At Lautoka
14 April 2011
[1] R v Jones [2005] EWCA Crim 732; [2002] 2 Cr. App. R. 9, para 22
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