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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Misc. Case Nos: HAM038 & 052 & 055 of 2011
Criminal Case No: HAC105 of 2009
BETWEEN:
KENI DAKUIDREKETI
Applicant
AND:
FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
Respondent
Hearing: 30 May 2011
Ruling: 24 June 2011
Counsel: Mr. W. Clarke for Applicant
Mr. N. Tennakoon for FICAC
RULING
[1] By way of motions, the applicant seeks orders for additional disclosure of documents and particulars of the offences charged. The charges against the applicant and his co-accused are brought by the Fiji Independent Commission Against Corruption (FICAC). The current Information contains four counts. The applicant together with his co-accused are charged with conspiracy to effect an unlawful purpose on count one and with fraudulent conversion on counts two and three. Count four relates to the co-accused only.
[2] FICAC responded to the motions by filing a schedule of documents that have already been disclosed to the applicant and documents that cannot be disclosed because they are not in their possession. FICAC also amended the charges, although the substance of the charges remains the same. FICAC maintains that they have no obligation to disclose documents which are not in their possession and that the amended charges provide sufficient particulars for the applicant to adequately prepare his defence.
[3] The applicant being dissatisfied with FICAC's response, filed a schedule of outstanding disclosures previously requested and a revised request for particulars on the amended charges.
Disclosure of documents
[4] The prosecution's obligations of disclosure in criminal proceedings arise from an accused person's right to a fair trial (R v Brown [1995] Cr. App. R. 191, 198). Of course, disclosure obligations in criminal proceedings can vary from jurisdiction to jurisdiction. As Lord Lowry said in Berry v The Queen (P.C) [1992] 2 AC 364.at p. 376:
"... in a civilised community the most suitable ways of achieving such fairness (which should not be immutable and require to be reconsidered from time to time) are best left to, and devised by, the legislature, the executive and the judiciary which serve that community and are familiar with its problems."
[5] Ultimately, how far the court will expand the scope of the prosecution's disclosure obligations will depend on the facts of each case.
[6] In 1998, the then Director of Public Prosecutions issued guidelines on disclosure of prosecution evidence after the Constitution came into effect. The need for guidelines arose from the fact that in addition to creating certain disclosure obligation towards an accused person, the common law right to a fair trial was codified in the Bill of Rights provisions of the Constitution. However, unlike many common law jurisdictions, which enacted legislations codifying the prosecution's disclosure obligations, Fiji continued to rely on the common law for the prosecution's disclosure obligations in the absence of such legislation. The guidelines were intended to compel the prosecutors in Fiji to maintain a unified approach to their disclosure obligations to accused persons. I must state that the guidelines are now zealously followed by the prosecutors in Fiji, which effectively gives the guidelines the force of the law.
[7] The guidelines are clearly in uniformity with the right to a fair trial under the common law and the international instrument, namely, ICCPR. I adopt those guidelines in my ruling as they recapitulate the law on disclosure in criminal proceedings in Fiji:
All prosecutors are to disclose witness statements to the accused person either by giving photocopies or carbon copies of witness statements or by arranging a time for the accused or his counsel to meet the prosecutor to read the statements in the docket.
The statements to be disclosed on request, are all witness statements of witnesses the prosecution intends to call, and all statements of witnesses who may be of relevance or assistance to the defence. The internal police minutes, investigation diary or D-folios need not be disclosed unless the prosecution intends to call evidence of these matters at the trial.
If access to statements is given by showing original statements in the docket, under no circumstances is the accused or his counsel permitted to take the original statements away from the custody of the prosecutor.
In cases where the prosecutor considers it necessary in the interests of the justice, he/she may make an application for witness statements to be disclosed with the name of the witness suppressed. The prosecutor should particularly consider this option in the case of witnesses who are vulnerable, such as children.
Where no request is made for witness statements, the prosecutor should in any event disclose either the evidence adduced by or, the summary of facts. However, accused persons who have requested witness statements may not also apply for evidence adduced by, or summary of facts.
Care should be taken that disclosure is complied with by disclosing legible statements or summaries. If statements are illegible, the investigating officer should be asked to provide legible copies for prosecution and disclosure.
These Guidelines on disclosure apply to all offences under all statutes.
These Guidelines exist in addition to the duties of prosecutors under the common law to disclose:
(i) Previous conviction of witness whenever relevant to the case;
(ii) Previous convictions of the accused;
(iii) Documents intended to be tendered by the prosecution at the trial;
(iv) Access to exhibits intended to be tendered by the prosecution at the trial;
(v) Any other exhibit document or statement that the prosecutor should disclose in the interests of fairness.
Where unrepresented accused persons request disclosure in the vernacular translation must be prepared by the investigating officer.
[8] In Manjula Ali v. The State Crim. App. No. HAA023 of 2005S, Shameem J after considering local and New Zealand cases on the prosecution's disclosure obligation said at p.12:
"These authorities reinforce existing principles on the prosecution's duty to disclose. The prosecution has a duty to disclose all relevant material but it cannot disclose what it does not have."
[9] Against these principles, the applicant's motion for disclosure must be considered. I now turn to the requested documents. They are:
1.0 Board Papers/reports/minutes/resolutions
a. NLTB Board Packs – January 2003 to end 2008
b. PCX Minutes and Board Packs – 2004, 2006 and 2007 (only March, May, July and October 2005 Minutes and Board Packs have been supplied).
c. VDCL Board Packs – January 2004 to January 2005 inclusive.
2.0 Bank statements/financial information
d. VDCL ANZ Bank statements:
a. A/c 8107763 – February 2004 to December 2007
b. Any other VDCL ANZ A/C – February 2004 to December 2007.
e. Any other VDCL bank accounts for which bank statements have not been disclosed – February 2004 to December 2007.
f. PCX Colonial National Bank statements – January and March 2007.
g. PCX ANZ bank statements – February 2004 to December 2007
h. PCX Fiji Development Bank statements:
a. A/c 113191 – February 2004 to December 2004
b. A/c1131191 – January 2006 to December 2007
i. NLTB bank statements:
a. NLTB Trust Cheque A/c 1230137
i. 31 March 2004 to 30 December 2004; and
ii. 2 January 2006 to 31 December 2007
b. NLTB Operating A/c 1250937
i. 31 March 2004 to 30 May 2006; and
ii. 1 December 2006 to 31 December 2007
c. Any other NLTB bank accounts
i. 31 March 2004 to December 2007
3.0 Documents referred to in Ratu Bainimarama's statement
j. The attachments to the letter VDCL to MFA dated 11/1/05 (NAE 5, D2 is the letter, not the attachments).
4.0 Documents referred to in Rokotamana Tabuna's statement
k. Letter VDCL (K. Bakani) to R Patel dated 28/02/2005
l. Copy of VDCL's request for Dominion's financial statements
5.0 Documents referred to in Jese Tabuatamata's statement
m. Copies ANZ extensions of temporary $1m OD facility to PCX to:
n. ANZ Demand Notice served on PCX on 14/05/2007
o. ANZ Notification of Extension of Demand Notice period to 30/06/2007
6.0 Documents referred to in Alipate Qetaki's statement
p. Copy of the confirmation of Qetaki's appointment as GM of NLTB
q. Copy of Qetaki's terms of his employment signed by Chairman of NLTB
r. Copies of all paperwork relating to the process involved in the system replacing mySAP being chosen including:
s. Copies of all information regarding the LANDS SOFT system replacing mySAP that was presented to the NLTB Board or its Standing Committee
7.0 Documents referred to in Tuifagalele Nemani's statement
t. Details of all authorities delegated to the GM of NLTB as at 31/03/2004
8.0 Documents referred to in Semi Tukana's statement
u. Letter PCX to NLTB dated 16/4/2007
9.0 Other documents
v. Sealing Registers of NLTB and VDCL
10.0 NLTB Minutes were pages omitted/Minutes not discovered
w. We require complete copies of the following NLTB Board Minutes, as we have either not been provided with copies or the copies provided are incomplete:
[10] FICAC has made it plain that they do not have in their possession any of the requested documents. There is no suggestion that FICAC is withholding any documents. Counsel for the applicant submits that although the documents are not in direct possession of FICAC, they are within control of FICAC to obtain and disclose.
[11] I accept that some of the requested documents are within FICAC's control to obtain and disclose. These documents have been either referred to by witnesses who have given written statements to FICAC in relation to the allegations against the applicant or are in possession of the victim of the alleged fraud, Native Land Trust Board (NLTB). Allegations of fraud are generally proved by paper trail evidence. In the present case, FICAC appears to be relying on documentary evidence to substantiate the charges given the voluminous documents filed in court as part of disclosure. While the relevance of the requested documents is not obvious at this stage, I am of the opinion that the applicant is entitled to documents which he thinks will assist him to prepare his defence. The court's duty is ensure that the applicant receives a fair trial. Consistent with the applicant's right to a fair trial, I am inclined to order disclosure of the requested documents which are in the possession of NLTB or with witnesses who have made references to some of those documents in their written statements to FICAC. FICAC is to retrieve or obtain those documents from NLTB or their witnesses and disclose them to the applicant and his co-accused.
[12] The motion for disclosure is granted to this extent. The documents that are in the possession of third parties, the applicant will have to apply for a subpoena as the prosecution's disclosure obligations does not extend to those documents.
Request for particulars
[13] The purpose of a charge is to serve as a formal notice to an accused of a criminal violation. The charge must contain a statement of the offence charged, together with particulars giving reasonable information as to the nature of that offence (section 58 of the Criminal Procedure Decree; previously section 119 of the Criminal Procedure Code). If sufficient particulars are not given, the common law provides that the court can order that they be supplied (R v Aylesbury Justices, ex parte Wisbey [1965] 1 All ER 602).
[14] Section 61 of the Criminal Procedure Decree provides for the method in which offences are to be charged:
(1) A count of a charge or information shall commence with a statement of the offence charged, and this shall be called the statement of offence.
(2) Each statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence.
(3) The charge shall contain a reference to the section of the law creating the offence.
(4) After the statement of the offence, particulars of the offence shall be set out in ordinary language, and the use of technical terms shall not be necessary.
(5) Where any rule of law or any Act Decree or Promulgation limits the particulars of an offence which are required to be given in a charge or information, nothing in this section shall require any more particulars to be given than those so required.
(6) The forms applying or approved under this Decree (or forms conforming to these forms as nearly as may be) shall be used in cases to which they are applicable; with the statement of offence and the particulars of offence being varied according to the circumstances of each case.
(7) Where a charge or information contains more than one count, the counts shall be numbered consecutively.
[15] While an accused has a right to be informed in detail of the nature of the offence charged, the right does not entail the accused be advised of the evidence relied upon by the prosecution to support that charge (The State v Jamuna Prasad [1995] 41 FLR 223).
[16] The charges against the applicant are framed as follows:
FIRST COUNT
Statement of Offence
CONSPIRACY TO EFFECT AN UNLAWFUL PURPOSE NAMELY THE DEFRAUDING OF THE NATIVE LAND TRUST BOARD OF ITS FUNDS: Contrary to Section 387 of the Penal Code Cap 17.
Particulars of Offence
KENI DAKUIDREKETI and KALIVATI BAKANI between the 31st day of March 2004 to the 3rd day of July 2007 at Suva in the Central Division conspired to effect an unlawful purpose namely defrauding of the Native Land Trust Board of its trust funds worth of $2,631,232.61 and a government grant worth of $1,000,000 by causing the payments of these funds into an Information Technology System called MYSAP which was set up by the Pacific Connex Limited and the payment of the debt incurred by Pacific Connex Limited at the Australian and New Zealand Bank.
SECOND COUNT
Statement of Offence
FRAUDULENT CONVERSION: Contrary to Section 279(1)(b) of the Penal Code Cap 17.
Particulars of Offence
KENI DAKUIDREKETI and KALIVATI BAKANI, between the 31st day of March 2004 to 21st June 2007 at Suva in the Central Division, fraudulently applied the Trust Funds of the Native Land Trust Board, worth of $2,631,232.61 into operational costs for the implementation and maintenance of an Information Technology system called MYSAP, set up by the Pacific Connex Limited.
THIRD COUNT
Statement of Offence
FRAUDULENT CONVERSION: Contrary to Section 279(1)(b) of the Penal Code Cap 17.
Particulars of Offence
KENI DAKUIDREKETI and KALIVATI BAKANI, on the 3rd day of July 2007 at Suva in the Central Division fraudulently applied, a Government Grant of $1,000,000 disbursed to the Native Land Trust Board for the sole purpose of investment to generate additional revenue for the Native Land Trust Board, into payment of the debt incurred by Pacific Connex Limited at the Australian and New Zealand Bank.
[17] The following particulars are sought by the applicant in relation to the charges against him:
Count 1: Conspiracy
(a) Particularise by what acts, evinced by what documents and occurring on what dates the conspiracy charged came into being;
(b) Particularise by what acts, evinced by what documents and occurring on what dates the conspiracy charged was given effect to between 31 March 2004 and 3 July 2007; and
(c) Particularise in relation to the sum of $2,631,232.61 of Trust Funds it is alleged the NLTB was defrauded of:
(i) the source of these Trust Funds;
(ii) the party or parties beneficially entitled to these Trust Funds;
(iii) the dates of payments and individual amounts paid that comprise this amount;
(iv) the persons or corporations who received such payments; and
(v) the specific obligations that each such payment was, on its face, said to meet (i.e. services provided or loans advanced).
Count 2: Fraudulent Conversion
(a) In respect of the scheduled payments to be particularised amounting to $2,631,232.61 as sought under the First Count above, particularize what fraudulent purpose or purposes the Accused is alleged to have had when the payments were made;
(b) If not particularized in answer to the particulars sought in the First Count, particularize the source, beneficial owners, dates and amounts of payments making up the $2,631,232.61.
[18] I do not think it is necessary for me to consider each individual request for particulars, separately. The applicant does not suggest that the charges are defective in a sense that that they do not contain the essential elements of the offences charged. In fact the charges contain all the essential elements of the offences charged. In my opinion, what the applicant seeks by his motion, is disclosure of evidence that the prosecution relies to prove the charges. The requested particulars are evidential matters. The evidence that the prosecution relies upon to prove the offences charged is a matter that should be left for the trial, with the evidential and the legal burden lying with the prosecution. At this stage, the prosecution has no obligation to disclose to the applicant how the charges against him will be proved.
[19] The motion for particulars is refused.
Daniel Goundar
JUDGE
At Suva
24 June 2011
Solicitors:
Messrs. Howards Lawyers for Applicant
Fiji Independent Commission Against Corruption for Respondent
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