FICAC v Mohammed - Ruling no case to answer [2015] FJHC 447; Criminal Case 349.2013 (4 June 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 349 of 2013

BETWEEN:

FICAC

AND:

FEROZ JAN MOHAMMED
: ILIESA TURAGACATI
: NAVITALAI SEREIVALU TAMANITOAKULA
: AISEA LIWAIONO
: VIJAY PRASAD

BEFORE: HON. MR JUSTICE PAUL MADIGAN

Counsels : Mr I. Lloyd, QC, SC with Dr. T. Hickey
and Ms. L. Tabuakuro for the first accused
: Ms N. Tikoisuva for the second accused
: Mr. F. Vosorogo for the third accused.
: Ms. T. Leweni for the fourth accused
: Ms T. Choy (L.A.C.) with Ms S. Prakash
for the fifth accused
: Mr R. Aslam with Ms T.Waqabaca and
: Ms L. Mausio for FICAC

Date of Applications : 3 June 2015
Date of Ruling : 4 June 2015

RULING
(No Case to Answer)

[1] All five accused apply for a ruling that there be no case to answer on all of the ch on then the Information that each faces.

[2] In assessing these applications, e into account the legislative provision of Section 231(1) of the Criminal Procedure Decreeecree 2009 which allows a finding of not guilty against an accused if there is NO evidence of the charge that he faces. More specifically, that evidence must be evidence either direct or circumstantial on each element of the relevant charge. Matters of credibility or weight are not relevant at this stage of proceedings. (I direct myself on the authorities of Sisa KalisogoCr. App. 52 of 1985 and Mosese Tuisawau Cr. App 14 of 1990).

The First accused's Application

[3] The first accused by his Counsel argues that an essential element in Count three against him ("Obtaining a Financial Advantage") is that the conduct complained of leading to the advantage being obtained is as stated in the Charge as laid "circumvented the Fiji Roads Authority verification process in submitting claims". They submit that there is no evidence whatsoever touching on what this verification process is or should be and no evidence that this process was ever communicated to the first accused. They stress the point made in cross examination of the financial investigator at trial (PW32, Tora) that the Government Financial Regulations make no mention of the need for a 'verification' stamp to be placed on documents.

[4] Count 8 on the Information charges the first accused with perverting the course of justice, contrary to Section 19(e)of the Crimes Decree 2009. In submitting that there be no case to answer for the first accused on this Count, Counsel submits that a necessary element of the offence apart from intention is a manifestation of that intention on the part of the accused. There being none such he submits is fatal to the count.

The Second Accused's Application

[5] The second accused faces two counts, one of receiving a bribe and the fourth count of causing a loss. It is in respect of this fourth count that his counsel makes application that there be no case. She submits that the elements of the offence being 1) dishonestly,2) causing a loss and 3)knowledge that a loss would occur have not been made out by the evidence. She argues that there is no evidence that her client was being dishonest when in approving payment, he also certified that theinvoices had not been paid previously. Furthermore, she submits, there is no evidence that her client was the direct cause of the payments on the invoices he certified and that there is therefore a break in the chain of causation. Finally she prays that her application be allowed on the grounds that there is no evidence whatsoever that the second accused had knowledge that a loss would occur as result of his acts.

The Third Accused's Application

[6] The Third Accused faces the fifth count of Causing a Loss. His counsel submits that "there is no scintilla (sic) of evidence" of dishonest conduct nor is there any "trace" of evidence of knowledge that a loss would occur. He argues that his client's endorsement on 10 payment vouchers for payment (a fact which is not disputed) was at an early stage of the payment "process" and therefore at that time he cannot possibly be imputed to be acting dishonestly. Counsel adds that there is neither evidence of knowledge that a loss would be caused to the Roads Authority.

The Cases for the Fourth and Fifth accused.

[7] Both the fourth and fifth accused face charges of causing a risk of loss to the Fiji Roads Authority by charges six (jointly) and charges7 (4th accused). Each submits by his Counsel that there was no evidence of dishonesty (a necessary element of the offence) on the part of their respective client, and that there was no evidence of knowledge that there would be a substantial risk of loss occurring by their acts. Both Counsel refer (as did Counsel for the second and third accused) to the dishonesty tests in Ghosh [1982] EWCA Crim 2; [1982] QB 1053, which they say have not been met.

The Prosecution (FICAC) replies:

[8] The prosecution resists all these applications, submitting that the evidence adduced in the prosecution case is more than sufficient to prove each element in the cases against each accused.

Analysis

[9] I have read all of the materials placed before me by all parties which I have considered along with the oral submissions made by them. I have looked at the applications of each separately and I have applied the relevant tests referred to supra.

Charge 3 Against the First Accused

[10] The application with respect to the third count is misconceived. "Circumventing the F.R.A. verification process" is not an element of the offence; it is no more than a further explanation of the rogue conduct that the State is alleging led to the obtaining of a false advantage. In any event the first accused was well aware of the claim process and the stringent checks in place from the claims that he had been submitting through the Lautoka Office since 2009. There is an abundance of circumstantial evidence before the Court that would allow a Tribunal of fact to make a fair determination of guilt or otherwise on this Count and there is therefore a case to answer.

Charge 8 against the first accused

[11] In his submissions with regard to the eighth count, a count of perverting the course of Justice, very learned counsel refers to Ficac v Kumar [2010] FJHC313 in which Nawana J, decided that the elements of the offence of preventing (sic) the course of justice include, not only an intention to "prevent" but also the manifestation such an intention by doing an overt act. The learned Judge had made no reference to any authority from which he might have sourced those rather demanding elements and the research conducted by this Court discloses nothing similar and I therefore decline to follow this authority. There is a great deal of direct evidence that the first accused ordered PW21 to create the false declaration, and that he produced that declaration at his interview with FICAC on the 30th July 2013. It can be said that the circumstantial evidence that he wished such falsehood to be relied upon by the FICAC investigators is almost overwhelming. The first accused is complicit in bringing the document into being and he is complicit in uttering it when he is being questioned presumably on related matters. There is a case to answer.

Charge 4 Against the Second Accused

[12] Counsel relies on submissions that there is no evidence of dishonesty, nor of knowledge that a loss would occur and she submits that the novus actus interveniens of other staff verifying the claim breaks the chain of his authority and he cannot be held liable.

[13] The circumstantial evidence of the second accused being dishonest and having knowledge of what he was doing is very strong. As the project Accountant for these road works(despite being responsible for FRUP – another project) he took it upon himself to sign all 14 of the progress payment Certificates despite the accompanying documents having the forged signatures of Naidu and Nayago endorsed on them . The two accounts staff raised their suspicions with him but as Project accountant he did nothing. There is evidence that when one staff member (PW15) was reluctant to pass a payment he physically stood over her until she signed it. That was for a payment to be made on the same day as the claim was received. His dishonesty is inferred from the profusion of circumstantial evidence against him as his obvious knowledge of the loss he was occasioning the FRA, if not only through the excessive overpayments. He has a case to answer.

Charge Five Against the Third Accused.

[14] Counsel for the third accused relies on his submissions that the evidence of dishonesty and of knowledge that his actions would cause a loss are non-existent. He relies on the Ghosh test. He relies on the obvious unsatisfactory state of the accounting system at FRA and by the fact that the documents would have been approved had his client signed or not.

[15] It is significant that on 10 payment vouchers out of the 14 "offending vouchers" before the Court were certified by the third accused and all 10 included overpayment in quite significant sums. As the Senior Accounts Officer and head of the accounts division, it was his responsibility to check the payments and to identify double payments or overpayments. He must have either had knowledge of the irregular payments or was "turning a blind eye" to them. One error may be excusable, two remiss, but to approve 10 highly irregular payments can only impute to the third accused dishonesty and knowledge. He has a case to answer.

Charges 6 and 7 against the fourth and fifth accused.

[16] The sixth count against the fourth and fifth accused (jointly) charges them with dishonestly causing a risk of loss of $95,773 to the FRA. The 7th count charges the 4th accused with causing a risk of loss of $315,417 to FRA.

[17] Each of their counsel submits that there is no evidence of dishonesty nor is there evidence that they could have knowledge of the risk they might be causing to the FRA.

[18] Counsel for the fourth accused submits that there is no evidence from anywhere that her client's signature was being relied upon by anybody to approve the payment claimed.

[19] Counsel for the 5thaccused submits that there is no evidence her client was aware of any risk involved.

[20] The fourth accused was at all relevant times an engineer working "on site"; that is to say at the Nausori Highlands road works and it was his function to verify that the works claimed to be done were in fact done. He was called to the Office of the 1sst accused on a Sunday (he missed church) and was asked to sign the supporting documents or the Statement of Invoice referenced in Exhibit 1. As engineer, he must have known that these were bogus documents and that the works claimed had not in fact been done. In an interview under caution, he, with great reluctance admitted signing the documents and admitted that he should not have. If he didn't know what was happening in the office on that Sunday he certainly "turned a blind eye" to it and could therefore be found to be dishonest and risking causing a loss by doing so. He has a case to answer on Count 6.

[21] The 4th accused faces another Count in Count 7., where he is said to have caused the risk of a loss of $315,417. Again, as Engineer on site he would have been in a position to know what he is signing when he signs the Invoice statements. Questions of dishonesty and /or knowledge of the risk he was taking in doing so are questions for the assessors, properly directed. He has a case to answer on the Seventh Count.

[22] The case against the fifth accused for Count 6 is different. He is claimed to have been in the office on the Sunday along with the fourth accused (as evidenced by PW2). It was said that he had signed tally sheets and delivery dockets in the presence of PW2. but the circumstances of the 5th accused signing them are very unclear. The PW2 was most contradictory. I disagree with the submission of the State that his mere presence and act of signing is enough to establish a dishonest intent on his part and knowledge that what he was doing was creating a risk of loss. The circumstances and reason for his signing them are unknown. Unlike the fourth accused, there are no admissions from him adduced in an interview under caution.
[23] I find that there is no case to answer against the 5th accused for Count 6 which is the only count he faces. I find the 5th accused not guilty of the charge. He is acquitted and discharged.

P.K. Madigan
JUDGE

4th June, 2015