State v Panapasa - Summing Up [2011] FJHC 701; HAC34.2009 (2 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 34 of 2009

STATE

v.

AKANISI PANAPASA

Hearing Dates: 17 – 31 October 2011
Summing Up: 2 November 2011

Counsel: Ms N. Tikoisuva for State
Mr. K. Shah for Accused

SUMMING UP

Madam 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.

[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] Counsel for the prosecution and the counsel for the Accused 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 to prove her innocence. Under our system of criminal justice, an accused is presumed to be innocent until he or she 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 before you can express an opinion that she is guilty. If you have any reasonable doubt about the guilt of the Accused you must express an opinion that she is not guilty. You may only express an opinion of guilt if you are satisfied so that you are sure that she committed the offences alleged.

[7] Your opinions 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. If you have acquired some knowledge of the law by some other means, then you must disregard them. Your duty is to apply the law as directed by me to the evidence you have heard.

[8] The Accused is charged with the offence of larceny by servant on three counts. You must consider each count separately. Larceny is just an old fashioned word for theft or stealing. Servant again is an old fashioned word used for an employee.

[9] You will see from the charges that each count alleges a gross amount and the dates between which the total of the gross amount was stolen. It is not necessary for the prosecution to prove the exact amounts alleged in the charges. The amounts and dates are not elements of the offence of theft.

[10] Count 1 alleges that the Accused between the 1st day of January 2006 and 31st day of December 2006 at Suva in the Central Division being employed as a Marketing Officer by Budget Rental stole the sum of $16,929.00 the property of Budget Rental.

[11] Count 2 alleges that the Accused between the 1st day of January 2007 and the 31st day of December 2007 at Suva in the Central Division being employed as a Marketing Officer by Budget Rental stole the sum of $12,501.00 the property of Budget Rental.

[12] Count 3 alleges that the Accused between the 1st day of January 2008 and 31st day of July 2008 at Suva in the Central Division being employed as a Marketing Officer by Budget Rental stole the sum of $20,647.00 the property of Budget Rental.

[13] The offence of larceny by servant has several elements which the prosecution must prove beyond reasonable doubt. In the context of this case, the elements are:

1. The Accused, Akanisi Panapasa

2. Being an employee (in this case of Budget Rent A Car)

3. Fraudulently

4. Took the property of Budget Rent A Car (in this case money)

5. Without the consent of Budget Rent A Car; and

6. With the intention of permanently depriving Budget Rent A Car of its property.

[14] All elements are in dispute. Mr Shah submitted that the prosecution failed to tender the employment contract or FNPF deductions to prove the Accused was an employee of Budget Rent A Car. You will recall that Mr Shah never suggested in his cross examination of the prosecution witnesses that the Accused was not an employee of the Budget Rent A Car. The Accused gave evidence that she was employed by Budget Rent A Car and that she had been in the organization for 16 years. You may think that there is no real dispute that the Accused was an employee of Budget Rent A Car and that this element is proved. Nor is there any dispute that the sums of monies specified in the charges, were the property of Budget Rent A Car. What is in dispute is whether the Accused fraudulently took the monies without the consent and with the intention of permanently depriving Budget Rent A Car of its property.

[15] Fraudulently simply means dishonestly. Dishonestly is a word with which you will be familiar and you must use your experience of life in deciding whether in all the circumstances, the Accused acted dishonestly.

[16] The evidence relied upon by the prosecution in this case is confession and circumstantial evidence. The prosecution says that the Accused made a confession on which you may convict. The Accused says that she did not make the confession and that it has been fabricated. She says that she was forced to sign a pre-written record of interview and charge statement. You must consider whether the Accused did in fact make the confession. If you are not sure that she did, you must disregard it. If, however, you are sure that she did make it and that it was true, you may take it into account when considering your opinion. It is for you to assess its weight and value.

[17] If you reject the confession, then you should consider the circumstantial evidence. You are asked to piece the story together from witnesses who did not actually see a crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.

[18] A common example of circumstantial evidence is fingerprint evidence. Suppose a person's fingerprints are found on an object at the scene of a crime, such as a murder weapon. It could be inferred that the person has handled that weapon and been present at that place. The inference could be drawn even though there is no direct evidence that the person was seen there.

[19] On some occasions evidence like fingerprints may be the only circumstance relied upon by the prosecution as proof of guilt. However, it is not unusual to find in a criminal case that evidence is given of a number of facts and circumstances. One witness proves one thing and another proves another thing. None of those things alone may be sufficient to establish guilt but, taken together, one circumstance building upon the other, they may lead to the conclusion that the Accused is guilty of the crime.

[20] That is what the prosecution is asking you to do in this case. The prosecutor has directed your attention to a number of facts and circumstances, such as the Accused's seniority in the company as the manager and supervisor, the posting of false entries in the documents and accounts to which the Accused had access to and the short banking of income that was in control of the Accused, which Ms Tikoisuva submits have been proved by the witnesses. You are asked to draw from those facts and circumstances the inference that the Accused is guilty of the charges.

[21] Therefore, you must first consider all the evidence and decide what facts have been proved. From those facts you are entitled to draw proper inferences. An inference is a logical deduction from facts that have been proved. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused having committed the crime. To find her guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.

[22] One of the inferences that the prosecution asks you to draw in this case is the state of mind of the Accused. If she did take the money, what was her intention when she did that? The prosecution says that she intended to permanently deprive Budget Rent A Car of its property.

[23] So a person's state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the Accused's mind and describe what she was thinking at any particular time. However, it is something that can often be inferred from all the proved facts and circumstances.

[24] They include, for instance, what the Accused herself actually did. That will often be a very important matter. A person's actions, in themselves, may clearly show her intention. Other matters that may be relevant are, what the Accused said and did before the alleged offence. What the Accused said at the time of the alleged offence. What the Accused said and did after the alleged offence, including her statement to the police, and what the Accused said in evidence.

[25] You should consider all the proved facts and circumstances, including those I have just mentioned, and from them you are entitled to draw proper inferences as to the Accused's intentions.

[26] 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. It is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed.

[27] 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.

[28] The first witness was Ashwin Arjun. Mr Arjun conducted an audit of the accounts of Budget Rent A Car, Walubay branch, for the period 2006 to 2008. Mr Arjun does not hold any formal accounting qualification but he is familiar with the accounting procedures of Budget Rent A Car by virtue of his position as an auditor in Niranjans Group. Budget Rent A Car is in a business of leasing or renting cars. Rental agreements (RA) between the company and the customers are generated upon initiations, that is, when the customers contact the company with the view to hire vehicles. The company uses a computer software programme to generate a document called Daily Banking Report (DBR). DBR is generated upon initiation of rental agreements. Receipts are issued for all payments received from the customers. Refunds to the customers are made upon termination of the rental agreements. Customers are issued receipts for refunds. Upon termination of rental agreements, the DBR system automatically generates entries to reflect the details of termination and refund because the RAs and DBRs are numbered in sequence.

[29] Upon audit, Mr Arjun found numerous discrepancies in the accounts of Budget Rent A Car, Walubay branch. As part of the audit, he examined the DBRs, receipts, cash summary documents and deposit slips. These documents are in evidence and Mr Arjun took you through these documents and highlighted the discrepancies. In the DBRs, he found entries made under the column 'Authorized Payments'. Mr Arjun said 'Authorized Payment' was an unknown concept in the company. The entries appeared to have been manually fed. He said he could not trace as to who the payments were made to, as the entries were particularized using either closed DBR number, future DBR number, refunds, general expense or negative banking. He said he could not find any receipts for these authorized payments. Mr Arjun found that not all income received by the company were banked. The short banking was justified under the DBRs as authorized payments. Mr Arjun summarized the short banking amounts in his audit reports, that is, exhibits P3, P30 and P39.

[30] I have prepared a schedule of the DBRs that Mr Arjun identified to have short banking. (Schedule A handed to the assessors). I must remind that you should not necessarily restrict yourselves to the exhibits in the schedule. The schedule is to assist you to identify the documents and decide for yourself whether there was short banking of income received by Budget Rent A Car as alleged in the three counts. What weight you attach to the audit findings is a matter for you.

[31] The next witness was Ugeshma Devi. Ms. Devi worked as a reservation officer under the supervision of the Accused at Walubay branch. Ms. Devi said all payments received from the customers were immediately handed over to the Accused. She prepared the cash summary upon receipt of the DBR from the Accused. When she could not balance the amounts in the cash summary, the Accused directed her to put entries such as negative banking or general expense to justify the short falls. Ms Devi said she never did banking. The Accused did the banking as she was in control of the daily income received from the rental agreements. Ms Devi said only the Accused had the key to the office safe. Ms Devi took us through the cash summary documents she had prepared and entries she made on the directions of the Accused. Ms Devi also identified the handwriting of the Accused rewriting some of the entries after crossing the earlier entries. In cross examination, Ms Devi said she did not see the Accused crossing the entries and rewriting them in the cash summary documents.

[32] Ms Devi, of course, is not an expert on handwriting. Her recognizance of the Accused's handwriting is based on her work experience with the Accused who was her supervisor for a period of about three years. If you decide to act upon Ms Devi's evidence, then I must warn you to approach her evidence with caution. The reason I give this direction is not because I wish to convey to you any view of the credibility of Ms Devi, but in every case the law requires that I give this direction.

[33] The reason you must approach Ms Devi's evidence with caution is that she may be regarded as having some purpose of her own to serve. She accepts she wrote the entries in the cash summary, which may not be correct. She said she was directed by the Accused to write those entries. You may think that many a person in Ms Devi's position would be tempted to minimize her own role in what happened, with corresponding temptation to exaggerate or distort that part played by others. She may have a motive for falsifying evidence, or for distorting or suppressing the truth, which is not immediately obvious. What it all amounts to is that you should scrutinize Ms Devi's evidence with special care. It is open to you to act upon her evidence if you are convinced of its truth bearing in mind the warning I have given.

[34] The next witness was Nitesh Niranjan, the managing director of Niranjans Group. He is also known as Bob. He said Budget Rent A Car is a subsidiary of Niranjans Group. Mr Niranjan said his company did not use the function 'Authorized Payments' in the DBRs. The company only used the initiation and termination functions and did the banking at the end of the day. He said he had not approved any authorized payments as reflected in the DBRs from Walubay branch. He said he never received any cash from the Accused.

[35] The remaining three witnesses were police officers. Sgt Ganesh caution interviewed the Accused on 18th and 19th August 2008. The Accused voluntarily turned up at the police station. The interview was suspended on the first day upon the Accused's request. She went home and returned to the station the following day and continued with the interview. She was cooperative and confessed to the allegation of theft. WPC Angeline was present throughout the interview. After the conclusion of the interview, Cpl Sanjay charged the Accused.

[36] That is the prosecution case.

[37] At the end of the prosecution case you heard me give the Accused her options. She could have remained silent or give evidence. While the Accused elected to give evidence, she bears no burden to prove anything. The burden of proving her guilt rests on the prosecution at all times.

[38] The Accused said she was the supervisor at Budget Rent A Car, Walubay branch. She was involved in the banking accompanied by two staff. Except for the last deposit slip (P51D), she prepared the deposit slips which are in evidence. She said anyone could have access to the authorized payments in her branch. The reservation officers were authorized to do the postings in the DBRs. The person posting the entries in the DBRs was required to put his or her initials. She is unable to tell who posted the entries in the DBRs if the initials are not there. She said the entries under the authorized payments were approved by her superiors from the head office. She said vouchers were prepared to justify the payments and submitted to the accountant Anuradha at the head office. On one occasion she personally gave $1000.00 to Mr Niranjan aka Bob. She said she never directed Ms Devi to make entries in the cash summary documents to justify the shortfall. She said she did not take any money from Budget Rent A Car.

[39] The second defence witness was Umit Singh. Mr. Singh conducted weekly or monthly audit of the cash count at the Walubay branch of Budget Rent A Car between 2006 and 2008. He said the ambit of his audit was limited. He only saw the monthly reports generated by the Accused. He did not personally check the DBRs. He had not come across the authorized payments contained in the DBRs. He only verified the banking amounts in the DBRs matched the deposit slips.

[40] That is the defence case.

[41] Anuradha Singh was a rebuttal witness called by the State. Ms Singh said the Accused never submitted any vouchers to her to justify the authorized payments made under the DBRs from the Walubay branch. The documents that were forwarded from the branch were the DBRs, the receipts, the rental agreements, the cash summary and the deposit slips, but not vouchers.

[42] As I have said, the issue in this case is whether the Accused dishonestly took monies without the consent of Budget Rent A Car and with the intention of permanently depriving the company of its property.

[43] The prosecution says that on each count the Accused took the short banking amounts for her own use and to avoid detection she herself posted false entries in the DBRs and directed Ms Devi to make entries in cash summary documents which she knew were false, to conceal her theft and to avoid detection.

[44] The defence says that the Accused did not take any money from Budget Rent A Car and she did not post any false entries in the DBRs and that she did not direct Ms Devi to make false entries in the cash summary documents.

[45] Which version of the facts that you accept is a matter for you. If you are satisfied of the Accused's guilt beyond reasonable doubt, then you advise me that she is guilty. If you have reasonable doubt about her guilt, you must find her not guilty. Your opinion on each count is either guilty, or not guilty.

[46] That concludes my summing up of the law and the evidence in this particular trial. We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charges. Take as much time as you wish. 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 charges.

[47] 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
2nd November 2011