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Fiji Independent Commission Against Corruption v Jogia [2012] FJHC 872; HAC098.2009S (1 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 098 OF 2009S


THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
[FICAC]


vs


  1. ASHWIN KUMAR JOGIA
  2. PENISENIASI TAGIKIMATUKU

Counsels: Ms. F. Pulewai and Ms. S. Sanmogam for Fiji Independent Commission against Corruption [FICAC]
Mr. H. Nagin for Accused No.1
Mr. A. Naco for Accused No. 2
Hearings: 16th to 27th January, 2012
Summing Up: 1st February, 2012


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. Madam and Gentlemen Assessors, it is 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. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
  2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
  1. THE BURDEN AND STANDARD OF PROOF
  1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
  2. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
  3. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. The victim in this case are the taxpayers of this country, especially when the integrity of their institutions (ie. The Navua Rural Local Authority and the Fiji Island Revenue and Customs Authority) are being allegedly undermined from within, and from the outside. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
  1. THE INFORMATION
  1. Mr. Peniseniasi Tagikimatuku (Accused No. 2) faced two counts of "forgeries", contrary to section 341(1) of the Penal Code, Chapter 17 (ie. Counts Nos. 1 and 3). Mr. Ashwin Jogia (Accused No. 1) faced two counts; first, "uttering a forged document", contrary to section 343 of the Penal Code (ie. Count No. 2), and second, giving a "false statement without oath", contrary to sections 121(b) and 47 of the Penal Code (ie. Count No. 4).
  2. On count No. 1, it was alleged that Mr. Tagikimatuku, on or about 15th July 2008, at Navua in the Central Division, being the Senior Assistant Health Inspector at Navua Rural Local Authority, with intent to defraud, forged the "Certificate of Completion and Permit to occupy No. 41973", by erasing the figure "8", and writing the figure "7" on the year column. On count No. 2, it was alleged that Mr. Ashwin Jogia, on or about 29th July 2008, at Suva in the Central Division, knowingly and fraudulently, uttered a forged "Certificate of Completion and Permit to occupy No. 41973", by presenting the said Certificate of Completion to the Fiji Islands Revenue and Customs Authority when claiming for Vat refund, knowing the same to be forged.
  3. On count No. 3, it was alleged that Mr. Tagikimatuku, on or about 15th July 2008, at Navua in the Central Division, being the Senior Assistant Health Inspector at Navua Rural Local Authority, with intent to defraud, forged the "Certificate of Completion Butt No. 41973, by crossing off the figure "7" and writing figure "12" on the month column, and erasing the figure "8" and writing the figure "7" on the year column. On count No. 4, it was alleged that Mr. Ashwin Jogia, on or about 29th July 2008, at Suva in the Central Division, knowingly and willfully, made a statement otherwise than on oath, which statement was false in a material particular, in that he stated in an application form, namely "Application for Refund of VAT on Acquisition of New Dwelling House", that the completion date of his new dwelling house was 15th December 2007 when in fact it was 15th July 2008, and the statement was made in a document he was required to make under the Value Added Tax Decree 1991 for the time being enforced.
  1. THE MAIN ISSUES
  1. In this case, as judges of fact, each of you will have to answer the following questions:
  1. THE OFFENCES AND THEIR ELEMENTS
  1. For Peniseniasi to be found guilty of "forgery" in counts No. 1 and 3, the prosecution must prove beyond reasonable doubt, the following elements:
  2. The making of a false document must be accompanied by an "intent to defraud", that is, an intent to trick or cheat someone". An "intent to defraud", or an "intent to trick or cheat someone", is presumed to exist if it appears that, at the time when the false document was made, there was in existence a specific person, ascertained or unascertained, capable of being defrauded thereby. In this case, the ultimate target was the Fiji Islands Revenue and Customs Authority. A document is false if the whole, or any material part thereof is falsely stated therein, and in particular, a document is false, if any material alteration, whether by addition, insertion, obliteration, erasure, removal or otherwise, has been made therein.
  3. For Mr. Jogia to be found guilty of "uttering a forged document" in count No. 2, the prosecution must prove beyond reasonable doubt, the following elements:
  4. In count No. 2, it must be first established as a matter of fact that, the document involved was a forged document. It must also be established that the accused knew it was a forged document, and he uttered it to a third party knowing it was a forged document. It must also be shown that when the accused knowingly uttered the forged document, he intended to defraud or cheat the third party.
  5. In count No. 4, for Mr Jogia to be found guilty of "making a false statement without oath", the prosecution must prove beyond reasonable doubt the following elements:

This offence involved the making of false declarations in an official document. It must be shown that the accused made the false declaration knowingly and willfully. The statement is not made on oath.


  1. Two accuseds are on trial in this case. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean they must both be guilty or not guilty. Most evidence in this case are admissible against both accuseds. However, regarding their FICAC caution interview statements, which may contain their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused's FICAC caution interview statements, you must totally disregard what the accused said about his co-accused on the commission of the offence. You can only take into account what he said about himself, regarding his role in the commission of the crime.
  1. THE PROSECUTION'S CASE
  1. The prosecution's case were as follows. On or about 7th September 2005, Mr. Ashwin Jogia (Accused No. 1) bought a piece of land at Pacific Harbour. He decided to build a new dwelling house at Dilo Place, Pacific Harbour. He obtained a $150,000 loan from Housing Authority - $10,000 was spent on the land, and $140,000 was set aside for building a new dwelling house. He engaged "Govinds' Small Works" (a building contractor) to construct the house for him.
  2. On 14th November 2005, Mr. Jogia applied to the Navua Rural Local Authority for permission to build his new dwelling house. The application was approved on 3rd February 2006. However, the actual construction started on 15th November 2006. According to the building contract, "Govind Small Works" was supposed to complete the house by 15th May 2007. In other words, it was agreed between Mr. Jogia and his building contractor that, it would take 6 months to build the house.
  3. However, "Govind Small Works" did not fulfill its part of the building contract. He was too slow. Mr. Jogia terminated him on 17th October 2007. Mr. Jogia hired another contractor, Rakesh, to complete his house. However, he again terminated Rakesh because he stole from him. Mr. Jogia started inquiring with Fiji Island Revenue and Custom Authority on his entitlement for a VAT refund, on acquisition of a new dwelling house. On or about 13th November, 2007, the Authority told him that he was entitled to a VAT refund if his house was fully completed, with the proper papers submitted with his application.
  4. On 27th November, 2007, Mr. Jogia learnt from the 2008 Budget announcement, that VAT refunds for new dwelling would be removed in 2008. He immediately inquired with the Authority. He was advised that a house completed before 31st December 2007, with the necessary paper works, would be entitled to a VAT refund. Houses completed after 31st December 2007, would not be entitled to a VAT refund. According to the prosecution, Mr. Jogia panicked. He had 34 days to complete his house, and do the necessary paper work.
  5. According to the prosecution, Mr. Jogia's house was completed on 15th July 2008. He was not entitled to a VAT refund. The Navua Rural Local Authority adjudged Mr. Jogia's house completed on 15th July 2008. They accordingly issued a "Certificate of Completion and Permit to occupy" (Prosecution Exhibit No. 3). However, according to the prosecution, Mr. Jogia was not going to let the facts defeat him. He was determined to get the VAT refund, even if it meant altering official documents.
  6. According to the prosecution, Mr. Jogia somehow influenced Mr. Peniseniasi Tagikimatuku, to alter the Navua Rural Local Authority's "Certificate of Completion's" [Prosecution Exhibit No. 3] date to 15.12.07, and its butt's [Prosecution Exhibit No. 4] date to 15.12.07, to assist Mr. Jogia apply for a VAT refund. Mr. Peniseniasi was working for Navua Rural Local Authority, at the time, as Senior Assistant Health Inspector. Mr. Jogia's case was his responsibility. According to the prosecution, Mr. Peniseniasi did not follow proper procedures when preparing the "Completion Certificate and its butt". According to the prosecution, he committed forgeries when he deliberately altered the dates in the completion certificate and its butt.
  7. Mr. Jogia applied for a VAT refund on 29th July 2008 [Prosecution Exhibit No. 6]. According to the prosecution, he knowingly and fraudulently uttered the forged "Completion Certificate" to the Fiji Island Revenue Custom Authority, knowing the same was forged. In applying for the VAT refund, according to the prosecution, he knowingly and willfully made a false statement that his house was completed on 15th December 2007, rather than 15th July 2008. As a result of the above, the prosecution is asking you, as assessors and judges of fact, to find Mr. Jogia guilty as charged on counts 2 and 4, and Mr. Peniseniasi, guilty as charged on count Nos. 1 and 3. That was the case for the prosecution.
  1. THE ACCUSEDS' CASES
  1. On 16th January, 2012, the first day of the trial, the information was put to both accuseds. Mr. Jogia pleaded not guilty to count Nos. 2 and 4, while Mr. Peniseniasi pleaded not guilty to count Nos. 1 and 3. In otherwords, both accuseds denied the allegations against them.
  2. As far as Mr. Peniseniasi was concerned, his defence was very simple. Although he admitted that, as an employee of Navua Rural Local Authority, he prepared the "Certificate of Completion" and its butt, as exhibited in Prosecution Exhibits No. 3, 4 and 18, he did not alter the dates, as alleged. He appeared to say that, the prosecution had not provided any witness to say that, he was seen altering the dates of the certificate and its butt. Consequently he asks you as assessors and judges of facts, that, there was a reasonable doubt on his guilt, and he should be acquitted accordingly. That was his case.
  3. As for Mr. Jogia, his defence was also simple. He maintained that his house was completed on 15th December 2007, and as such the dates on the completion certificate and its butt, were correct. This was so, despite it appearing to be altered. According to Mr. Jogia, he did not utter a forged completion certificate and did not make a false statement, when applying for a VAT refund to the Fiji Island Revenue and Custom Authority. He appeared to believe that he's still entitled to a VAT refund. According to Mr. Jogia, he is not guilty as charged, and asks you as assessors and judges of fact, to find him not guilty as charged. That was the case for Mr. Jogia.
  1. ANALYSIS OF THE EVIDENCE

Documentary Evidence


  1. In this case, a lot of documentary evidence were submitted in court. The prosecution tendered Prosecution Exhibit No. 1 to 23B, while the Defence tendered Defence Exhibit No. 1 to 16. A list is provided to you to assist you locate the relevant exhibits, during your deliberation. These exhibits are all evidence, and they will assist you understand the background of the case, and what actually happened, in addition to the oral evidence given in court by the witnesses.

The Accuseds' Caution Interview Statements


  1. Mr. Ashwin Jogia was caution interviewed by FICAC officers from 14th to 21st September 2009. He was asked a total of 231 questions and he gave 231 answers. It appeared he was given the standard meal and rest breaks. It also appeared he was given the standard cautions and given other rights.
  2. As for Mr. Peniseniasi Tagikimatuku, he was caution interviewed by FICAC officers from 16th to 21st September 2009. He was asked a total of 211 questions and he gave 211 answers. It appeared he was given the standard meal and rest breaks. He was cautioned and given other rights.
  3. If you accept that the accuseds' caution interview statements were given voluntarily by the accuseds, and out of their own free will to the FICAC officers, then you may use the statements as evidence for or against, its maker. If you find that the statements were given involuntarily, or not out of their own free will, to the FICAC officers, you may reject the statements, as evidence against its maker. However, in this case, the accuseds' caution interview statements were not seriously challenged by the defence, and as such, you can rely on the statements to explain the accuseds' positions, in this case.

The Case Against Mr. Peniseniasi Tagikimatuku


  1. The parties agreed to the following facts:
    1. It is agreed that the 2nd Accused in this matter is PENISENIASI TAGIKIMATUKU of 7 Siriti Place Nakasi (hereinafter referred to as the "2nd Accused").
    2. It is agreed that the 2nd Accused was a Senior Assistant Health Inspector at Navua Health Office, in all times material to this case.
    3. That an application for permission to erect a new dwelling house was made on the 26th of October 2005 with Navua Rural Local Authority (hereinafter referred to as the "NRLA") by the 1st accused.
    4. That the permission to erect the said dwelling house was approved by NRLA on the 3rd of February 2006.
    5. That the 2nd accused was assigned the responsibility to look after this project of dwelling house of the 1st accused as it fell within his assigned area (Pacific Harbour to Nakaulevu Area).
    6. That the 2nd accused was responsible to inspect the various stages of the construction work of the dwelling house of the 1st accused.
    7. That all the inspection reports were recorded at the back of the "Application for Permission to Erect a Building" form and signed by the inspection officer namely 2nd accused.
    8. That these records were also made in the "Medical Department Building Register for NRLA (e.g. the date of application, name of applicant, date of approval, location of land and the date of completion certification).
    9. That a letter dated 17th December 2007, signed by 1st accused and his wife addressing to the Secretary, NRLA, with attention to 2nd accused, requesting an inspection on his dwelling house.
    10. That the final inspection of the dwelling house was done by the 2nd accused on the 15th of July 2008.
    11. That the 2nd accused submitted the inspection report to the Health Inspector namely Samuela Bolalailai with the final report as per the approved plan on the 15th July 2008.
    12. That the Health Inspector namely Samuela Bolalailai instructed the 2nd accused to prepare the Certificate of Completion for the 1st accused.
    13. That a Certificate of Completion bearing Number 41973 was prepared by the 2nd accused and signed by the Health Inspector namely Samuela Bolalailai on the 15th July 2008.
    14. That the 2nd accused issued the Certificate of Completion bearing No. 41973 to the 1st accused on the 15th July 2008.
    15. That the 1st accused requested NRLA to back date his above Certificate of Completion of the dwelling house.
    16. That the Health Inspector Samuela Bolalailai wrote a minute dated 15th July 2008 to the 2nd accused, Peniseniasi for the 1st accused, Ashwin Jogia to put his request in writing."
    17. That the Figure in the month column on the butt copy of Certificate of Completion bearing BR No. 169/05, number 07 was crossed off and number 12 was written instead.
    18. That a caution interview of 2nd accused Peniseniasi Tagikimatuku was conducted on 16/09/09, 17/09/09 and 21/09/09 conducted by Malakai Seru at FICAC officer, Suva.
  2. Because the above facts were not disputed by the parties, I direct you as a matter of law that, you can take it that the prosecution had proven the above facts beyond reasonable doubt. This enables us to concentrate on the disputed issue, that is, did Peniseniasi alter the dates in the Completion Certificate and its butt?
  3. When Peniseniasi was caution interviewed by Mr. Malakai Seru on 17th September, 2009, the following questions and answers were recorded in his caution interview [Prosecution Exhibit No. 23B]:

"Q66: Mr. Peniseniasi what is the exact date that the house of Mr. Jogia was completed?

A: 15/07/2008


Q67: Do you still maintain that you filled in the Certificate of Completion on this same date?

A: Yes.


Q68: That means Mr. Peniseniasi that you filled the particulars in the Certificate of Completion on the 7th month, July. Is this correct?

A: Yes.


Q69: I wish to once again show you the "Certificate of Completion and Permit to Occupy" certificate number 41973 in the name of Ashwin Jogia (certificate shown to suspect). Do you still maintain that this is your handwriting?

A: Yes except for the "07", the year has been altered from "08" to "07".


Q70: Do you agree with us that only the year has been altered and not the day and the Month?

A: Yes.


Q71: Mr. Peniseniasi why then did you write the 12th month, December on the Certificate of Completion instead of the 7th month which is July?

A: I admit that this was an error on my part, I think I was rushing through and I wrote the 12th month instead of the 7th month.


Q72: Are you aware that the Certificate of Completion is an official document?

A: Yes.


Q73: Do you agree with us that you had made a false entry in an official document?

A: Yes, just on the month.


Q74: Mr. Peniseniasi when you tear the Certificate of Completion and gave it to Mr. Jogia, what is left in the booklet?

A: The butt copy.


Q75. Did you also filled in the butt copy of Mr. Jogia's Certificate of Completion?

A: Yes.


Q76: I would like to show you the butt book copy of "Certificate of Completion BR No. 169/05 of Mr. Ashwin Jogia (butt book copy shown to suspect). Whose handwriting is on this butt book copy?

A: Mine.


Q77: When did you fill in the particulars in this butt book copy?

A: I filled in the particulars on 15/07/08.


Q78: Did you also filled in the date?

A: Yes.


Q79: What date did you filled in the butt book copy?

A: 15/7/08.


Q:79: Do you agree with us that the date has been altered with twink and crossing out?

A: Yes.


Q:80 Who did the alterations of the dates?

A: I do not know.


Q:81 I put it you that you are the one that altered the dates in the butt book copy as you had also made a false entry in the Certificate of Completion. What can you say to this?

A: No.


  1. When we look at the agreed facts in paragraph 31 and the answers Mr. Peniseniasi gave Mr. Malakai Seru in paragraph 33 hereof, one can see that he was heavily involved in the preparation of the "Certificate of Completion" (Prosecution Exhibit No. 3) and "its butt" (Prosecution Exhibit No. 4). He admitted he was the officer that prepared and filled in both documents. He admitted that the handwriting in the two documents were his. Even Mr. Samuela Bolalailai (PW1) and Mr. Aminiasi Kamikamica (PW7), in their evidence, stated, the handwritings in the "Completion Certificate and its butt" were Mr. Peniseniasi's. So, as a matter of fact, the defence did not dispute that, it was Mr. Peniseniasi who prepared and wrote the "completion certificate and its butt". Even Mr. Peniseniasi admitted, he filled in the "completion certificate" on 15th July 2008, and admitted he made a mistake, when he wrote the 12th month (December) on the "completion certificate" date, instead of July (ie 7th). He admitted he made a false entry in an official document by writing the 12th month, instead of the 7th month. However, he said, he didn't alter the year from "08" to "07". He admitted he dated the "completion certificate butt" as 15.07.08, but denied altering the same to 15.12.07. How can FICAC link Mr. Peniseniasi to these date alterations?

Circumstantial Evidence


  1. The prosecution has not provided any eye witness to say that Mr. Peniseniasi altered the "completion certificate and its butt", as alleged. This was obviously a difficulty for the prosecution. In order to connect these alleged alterations to Mr. Peniseniasi, the prosecution relied on what is often called circumstantial evidence. That simple means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say 'We now know everything there is to know about this case'. But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him. 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.
  2. In this case, the prosecution said, Mr. Peniseniasi prepared the completion certificate and its butt on 15th July 2008. This was the date he made the final inspection on Mr. Jogia's house. Mr. Peniseniasi, in his caution interview and in his evidence, admitted he dated the "completion certificate" as 15.12.08. In his interview and while giving evidence, Peniseniasi admitted making a mistake by writing the "12th month", instead of the "7th month", on the "completion certificate". Was it possible that he also altered the year in the "completion certificate" from "08" to "07"? Was it possible also that he altered the dates on the completion certificate butt? According to Mr. Samuela Bolalailai (PW1), when Mr. Peniseniasi made his recommendation for the issue of the "completion certificate" to Mr. Jogia on 15th July 2008, he requested on behalf of Mr. Jogia to backdate the completion certificate to the end of 2007. Mr. Bolalailai told Mr. Peniseniasi it was not possible to do that. According to Mr. Bolalailai, Mr. Peniseniasi told him the backdating was necessary for Mr. Jogia to claim a VAT refund. It would appear at this stage that Mr. Peniseniasi was no longer impartial. He appeared to be an advocate for Mr. Jogia, rather than his employer, the Navua Rural Local Authority. The prosecution is saying that, given Mr. Peniseniasi's strong interest in the outcome of Mr. Jogia's case, there was strong circumstantial evidence that he was the one who altered the dates in the completion certificate and its butt, to assist Mr. Jog ia claim a VAT refund. According to the prosecution, he had the intent to defraud his employer, the Navua Rural Local Authority, by making a falsely dated "completion certificate and its butt", in order that it may be used as genuine. These are matters for you.

The Case Against Ashwin Jogia


  1. On 29th July 2008, Mr. Jogia submitted his "Application for a VAT refund on Acquisition of a New Dwelling House" to the Fiji Island Revenue and Custom Authority, at Nasese. [Prosecution Exhibit No. 7]. In support of his application, Mr. Jogia submitted a copy of the "Certificate of Completion & Permit to Occupy" [Prosecution Exhibit No. 3] from the Navua Rural Local Authority. In his evidence, Mr. Jogia said, he received the "Certificate of Completion" from Mr. Peniseniasi, on 15th July 2008, when his house was finally inspected, by him. Mr. Peniseniasi confirmed the above.
  2. Mr. Peniseniasi, in his evidence, confirmed that after inspecting Mr. Jogia's house, they went to the office of Navua Rural Local Authority. That was on 15th July 2008. Mr. Jogia admitted, in his evidence that before the "completion certificate" was issued, Mr. Peniseniasi and him discussed the backdating of the "completion certificate" to 2007. Mr. Jogia was asked to put his request in writing, and he did so accordingly.
  3. Mr. Jogia wrote the following letter:

15 July 2008

Attn: Mr. Peni Seniyasi

The Secretary

Navua Rural Local Authority

c/- Navua Health Centre

P. O. Box 84, Navua


Re: Completion Certificate


Dear Sir


I would highly request if you could provide me a completion certificate for my vila 959 Dilo Place, Pacific Harbour and this could be backdated to 27 December 2007.


In order to claim VAT refund for my new dwelling house I need to obtain a completion certificate prior to 1 January 2008.


Thank you very much for your consideration for this request.


Sincerely

ASHWIN JOGIA


  1. Mr. Jogia in his evidence said, after writing the above letter, he received his "completion certificate", dated 15.12.07. Mr. Peniseniasi, in his evidence said, he gave the "completion certificate" to Mr. Jogia, on 15th July 2008. In his evidence, Mr. Jogia admitted that" nobody told him it was illegal to backdate a "completion certificate". As a matter of law, I must direct you, as assessors and judges of fact, that ignorance of the law is not a defence, to committing an offence.
  2. The above would appear to show that Mr. Jogia's house was finally inspected on 15th July 2008. Mr. Jogia and Mr. Peniseniasi returned to the Navua Rural Local Authority's office to issue the completion certificate, on the same day. Mr. Jogia asked for the certificate, on the same day. Mr. Jogia asked for the certificate to be backdated to 27.12.07. In other words, Mr. Jogia was asking for an official document to be falsified. He was, in effect, asking Mr. Peniseniasi to commit forgery. Mr. Jogia said he received the completion certificate dated 15.12.07. According to Mr. Peniseniasi, a house is completed when adjudged by the Navua Rural Local Authority, after a final inspection to confirm the completion of the house. In Mr. Jogia's case, it was 15th July 2008, not 15th December 2007. When Mr. Jogia received the "completion certificate" dated 15.12.07, he knew it was a false document. On 29th July 2008, it would appear, he knowingly uttered the forged "completion certificate" to the Fiji Island Revenue and Customs Authority, with intend to defraud them of the so-called VAT return. This is matter for you, on count No. 2.
  3. When he submitted his "application for VAT refund" [Prosecution Exhibit No. 7], Mr. Jogia wrote the date of the completion of his house, as 15.12.07. He knew the final inspection on his house was on 15th July 2008 [see Prosecution Exhibit No. 1, "Visit of Inspection"]. According to Mr. Peniseniasi, a house is completed officially, when the Navua Rural Local Authority confirms a completed house with a final inspection, and the issuance of a "Certificate of Completion". The certificate was to be dated on the day of the final inspection. In Mr. Jogia's case, his house was finally completed on 15th July 2008. The evidence seemed to show that Mr. Jogia knew this. Nevertheless, it would appear that, when Mr. Jogia applied for his VAT refund from the Fiji Island Revenue and Customs Authority, he knowingly and willfully made a false declaration in the application, that his house was completed on 15.12.07, when it fact, it was completed on 15th July 2008. This is a matter for you, on count No. 4.
  4. You have heard the evidence of all the prosecution and defence witnesses. You have observed their demeanour in the courtroom, while they were giving evidence. How did they behave in the courtroom? Were they forthright when examined-in-chief, cross-examined and re-examined? Were they evasive or argumentative when examined-in-chief, cross-examined and re-examined? How did they dress to court? Given the above, my address to you on the law, your life experiences and common sense, you should be able to decide which witness's evidence or part of his evidence is reliable and therefore to accept, and which witness's evidence or part of his evidence is unreliable and therefore to reject, in your deliberation in this case.

I SUMMARY


44. Remember, the burden to prove the accuseds' guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accuseds, at any stage of the trial. The accuseds are not required to prove their innocence, or prove anything at all. In fact, they are presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accuseds' guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accuseds' guilt, you must find them not guilty as charged.


45. Your opinions are as follows:


Count No. 1: Forgery Accused No. 2 - Guilty or Not Guilty

Count No. 2: Uttering a Forged Document Accused No. 1 - Guilty or Not Guilty

Count No. 3: Forgery Accused No. 2 - Guilty or Not Guilty

Count No. 4: False Statement without Oath Accused No. 1 - Guilty or Not Guilty


46. You may now retire to deliberate on the case, and once you've reached your decision, you may inform our clerk, so that we could reconvene to receive your decisions.


Salesi Temo
JUDGE


Solicitor for the State : Office of Fiji Independent Commission Against Corruption, Suva
Solicitor for First Accused : Sherani & Co., Barristers & Solicitors, Suva
Solicitor for Second Accused : A. Naco, Barrister & Solicitor, Suva

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