Fiji Independent Commission Against Corruption v Maharaj - Summing Up [2016] FJHC 106; HAC334.2013 (11 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 334 of 2013

BETWEEN:

FIJI INDEPENDENT COMMISSION
AGAINST CORRUPTION
PROSECUTION

AND:

RUDRA MAHARAJ
ACCUSED PERSON

Counsel : Mr. Aslam with Ms. F. Puleiwai and Ms. L.
Bokini for FICAC
Mr. Iqbal Khan for Accused

Date of Hearing : 1st, 2nd, 3rd, 4th, 5th February 2016
Date of Summing Up : 11th February 2016

SUMMING UP

[1] Lady Assessor and Gentlemen Assessors,

It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The Counsel for the prosecution and defence made submissions to you about the facts of this case. That is their duty as Prosecuting counsel and Defence Counsel. Their submissions are not evidence. It is a matter for you to decide which version of the facts to accept, or reject. It is your duty only to consider the evidence that has been presented in relation to the charge that have been leveled against the accused and apply the law as I explain to you. It is your duty only to rely on the evidence led in court and not to speculate from anything which is not part of evidence of this case.

[4] You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me, but I can tell you that they will carry great weight with me when I deliver my judgment.

[5] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.

[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means 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.

[7] Your decisions must be solely and exclusively upon the evidence which you have heard in this court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this courtroom. You may have heard about this case through electronic media, may have seen articles in newspapers before and during the trial. You must disregard all what you heard outside this courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial.

[8] Your duty is to find the facts based on the evidence and apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

[9] You have the information before you. The accused is charged with one count of Bribery. The particulars of the offence say that the accused being a public servant namely an information officer-public relations at strategic framework for change coordination office at the office of Prime Minister, without lawful authority or reasonable excuse accepted an advantage namely a sum of $2000 cash and two cheques amounting a total of $10000 as a reward from Avin Prakash on account of using influence in procuring a contract pertaining to tender number WSC 177-182/2012.

[10] I will explain to you the elements of the offence as charged.

1. The accused, being a public servant,
2. Without lawful authority or reasonable excuse,
3. Accepted an advantage (in this case $2000 cash and two cheques amounting to $10000) from Avin Prakash,
4. On account of using influence in procuring the contract pertaining to tender no. WSC 177-182/2012.
   

[11] The 1st element of the offence that the accused was a public servant during the time relevant to this case is not in dispute. You have the written agreed facts before you. Prosecution and the defence have agreed to those facts and they are not in dispute. You may accept them as if you have heard them led in evidence from the witness box unchallenged. In the agreed facts no. 2 and 3, parties have admitted that the accused held the position of "Information Officer-Public relations" at the strategic framework for Change Coordination Office and that he was a public servant during the relevant period.

[12] In this case the accused never claimed that he had lawful authority or reasonable excuse to accept an advantage. The position taken by him is that he never accepted the money. He denies accepting the money. Therefore you don't have to worry about the second element that the accused was without lawful authority or reasonable excuse.

[13] Therefore, the remaining two elements that the prosecution has to prove beyond reasonable doubt to find the accused guilty are;

1. The accused accepted an advantage (in this case $2000 cash and two cheques amounting to $10000) from Avin Prakash.,
   
2. On account of using influence in procuring the contract pertaining to tender no. WSC 177-182/2012.
   

The Evidence

The Prosecution case.

[14] Prosecution called Avin Prakash to give evidence first. He is a director of Fijiana Builders which involves in general construction of buildings and houses. Other directors of the company are his mother Premila Devi and father Jay Prakash.

[15] He said he applied for a tender to build Bio Fuel Sheds for 6 islands with the Department of Energy. Thereafter the Ministry had told all applicants to review the prices to suit their budget. Procurement office had advised them to rebid, which they did.

[16] Then the technical evaluation committee had called for an interview in his office and had questioned as to why their time period is high. He had explained the reason. The evaluation team had been satisfied with his answers. He could remember one person as Thomas Kishore as a person who came with the committee. After the meeting, they had told him to expect confirmation from Ministry of Finance within a week as they were recommending their company for entire islands. He had been following it up with Thomas Kishore as he was part of the evaluation committee.

[17] On 20/09/2012 his father had telephoned him saying one Rudra Maharaj called from Prime Minister's Office. The witness had known Rudra Maharaj by name because Rudra Maharaj had called him before on some complaint. Rudra Maharaj had not told his father as to why he was calling him to Parliament House. Witness had told his father to come to Parliament House and that he also would be there.

[18] When they went to Parliament House and asked for Rudra Maharaj, they were guided to 1st floor. After meeting Rudra Maharaj he had taken them to the boardroom. It was the 1st time that he met Rudra Maharaj, he said. Rudra Maharaj had first asked them regarding timber to build his house. After another man crossed the boardroom to enter the office, he had changed the topic and spoken about the tender, and had told them that he is talking about the tender for Bio Fuel Buildings on the islands. He had told them that he could push for 5 or 6 buildings provided they give him a 10% commission which is around $130,000.00. They got really shocked, he said.

[19] The witness said that he debated with Rudra Maharaj and told him that the technical evaluation committee had already interviewed him and had told him that the entire building contract is coming to their company. Then Rudra Maharaj had told them that he makes the final decision and that he could advice the tender board that their company is not capable of building all the Bio Fuel Sheds and also that nobody could overrule him. When they threatened him of FICAC, he had told them that FICAC falls under him, he said. He had told them to go back, make a decision and get back to him on his personal cell phone.

[20] He had informed Thomas Kishore that one government official is asking for commission. However he had not given him the name of the officer as they were planning to complain to Prime Minister. He said that he and his father decided not to entertain this kind of corruption. His father had called Rudra Maharaj and had told him that they won't be able to give any commission as they were not making much profit. Mr. Maharaj had advised his father to come the next day to parliament house.

[21] On 20/09/2012 they had not reported the matter to FICAC or Police as they did not have evidence to prove, and they have decided to record the conversation. He and his father had gone to parliament house on 21/09/2012.

[22] It had been a Friday. There had been a lot of people in parliament premises. Mr. Maharaj had come shortly and at the verandah of the same building Mr. Maharaj had shown them a piece of paper, which showed that 'Fortech Construction' was awarded with 3 buildings, 'Modern Investment Services' was awarded with 1 building and their company Fijiana Builders was awarded with 2 buildings. Mr. Maharaj had said, that since they were not willing to give 10%, they have given 3 buildings to 'Fortech' and another to 'Modern Investment' and only 2 to their company. Mr. Maharaj also had told them that if they pay at least 5% of the total value, he can withdraw 'Modern Investment' and award 3 buildings to them, he said. The amount 5% was not discussed, he said. Mr. Maharaj had then said that it is risky here as the parliament house was crowded and had asked them to come to his residence in Nakasi and had given his address. He said that he could not record that conversation as they were standing in the verandah.

[23] He said that same afternoon he with his father went to Mr. Maharaj's house at 2pm. He said that it was to record the conversation. Mr. Maharaj had come home shortly and had taken them to the verandah. Mr. Maharaj had asked him to calculate the 5% amount from the cell phone which came to $30000.00 something he said. Mr. Maharaj had told him to take a round figure at $30000.00. He had started recording the conversation. His father had repeated what they discussed because they wanted to record it.

[24] He gave evidence on the discussion and said that Mr. Maharaj agreed to accept $15000.00 to $12000.00 and Mr. Maharaj asked them to get the money ready on Monday the 24th September 2012 and to come to his residence.

[25] On 24/09/2012 they had gone to Prime Minister's Office with one I-taukei worker and had met Major Rokoura and wanted to meet Prime Minister. Prime Minister had been away and they had told the story to Major Rokoura. Major Rokoura had called FICAC officer Isireli and on his advice he had written a letter stating what happened, addressed to Prime Minister. Then they had met Isireli of FICAC there. They had discussed and Isireli had advised them to give the money to Rudra Maharaj so that he can be caught red handed.

[26] From Prime Minister's Office, his father had called Mr. Rudra Maharaj to fix the meeting and Rudra Maharaj had asked them to come home now as he is home. They have arranged the meeting at 7.00pm when it is dark, he said.

[27] There had been 3 – 4 FICAC officers in his office. Name of one officer had been Kuli. He was advised to scratch his head if Rudra Maharaj accepts the money and to bang the shoes as if there was a stone inside, if money is not accepted. He said that they had this meeting with FICAC officers at his office around 6pm.

[28] He said that he withdrew $2000 of cash and wrote 2 cash cheques of $5000 each which was postdated. Cheques were photocopied, he said.

[29] They have reached Rudra Maharaj's house around 7.15pm. Rudra Maharaj had taken them to the verandah. His father had told him that they brought the cash and the cheques. Rudra Maharaj had told them that he will not cash the cheques but will keep them until they reimburse. He had kept them on the table. Cash and cheques were in an ANZ coin plastic.

[30] Rudra Maharaj had telephoned someone and told to get the contract letters ready by next day. Then Rudra Maharaj had received a call saying that somebody is coming over. Then his father had told Rudra Maharaj to take the money as someone is coming. Then Rudra Maharaj had taken the money. When the witness and the father took off, Rudra Maharaj had walked with them to the vehicle. Witness has scratched his head to signal the FICAC officers. As the FICAC officer did not show up he had continued the conversation with Rudra Maharaj until FICAC officers came. When Rudra Maharaj saw Mr. Kuli: saying "Kuli mai mai!" he had thrown the money towards the witness. Money which was in the ANZ coin plastic had landed near his car. The cash $2000 and the 2 cheques were produced as exhibits. He also said that the cheques were written by him and signed by him. On the instruction of FICAC officer the cheques were postdated differently to make it look realistic, he said.

[31] The audio recordings of conversations on 21/09/2012 and 24/09/2012 were produced in evidence as exhibits and were played in court before you. The witness confirmed that those were recorded by him.

[32] With the agreement of the parties the English transcript of the said audio recordings were also produced as exhibits.

[33] The witness identified the accused as Rudra Maharaj. He explained to you about the conversation which was recorded, from the transcript. He said that on the 24th, while they were sitting in the verandah he was not able to see any of the investigators.

[34] In cross examination it was put to him by the defence that the evidence he gave that Rudra Maharaj asked for commission was false and untrue. The witness denied. He denied that he had any problems with Rudra Maharaj before.

[35] When he was questioned about the previous complaint about treated and untreated timber, he said that it was sorted out the same day and that the forestry officer declared that it was treated timber. He denied that he had a heated argument with Rudra Maharaj on that timber issue. The witness denied that the witness suggested about the tenders when they met Rudra Maharaj on 20/09/2012 at parliament house. He also denied that Rudra Maharaj volunteered to assist him in his procedures to avoid doing any irregularity. He said that he was shocked when Rudra Maharaj asked for 10% commission.

[36] Witness said that when he threatened the accused to report to FICAC, Rudra Maharaj said that FICAC falls under him. However after showing his statement to FICAC he said that it was not recorded in his statement. He said that he spoke to Mr. Isireli of FICAC in Prime Minister's Office and the statement was recorded around 12.30 – 1.00am and concluded by 2.00am. On showing that the disclosed statement reads the time of recording as 8.30pm to 11.15pm, he said that the statement was handwritten first and then typed and that he must have overlooked on the time. He denied that his idea was to trap Rudra Maharaj.

[37] It was put to the witness that they never went to accused's house on 21/09/2012, which he denied. He denied using the conversation referring to the templates and the figures to suggest that Rudra Maharaj wanted money from him. He said that he carried photocopies of the cheques and another quotation to Rudra Maharaj's house on the 24th. He also said that Rudra Maharaj told him to save the money on the barges so that they can pay his commission. Witness said that the accused asked for the commission.

[38] He confirmed that they gave the money to the accused when it was suggested that they did not. He said that when the FICAC officer took the accused to the verandah, he had been near his car and that he did not see FICAC officers searching the accused. He said that he saw the accused threw the money towards him and that he showed that to FICAC officers. He did not remember what he wrote in the cheque butt. He said that it was unimportant as the cheques were unused.

[39] Referring to the audio recording and the transcript, it was put to the witness that comments made by the accused were directed to tenders and projects and nothing to do with commissions. The witness denying the suggestion said that the amount was discussed and it was recorded and it was on commission. He denied trapping Rudra Maharaj.

[40] In re-examination he said that the complaint about the treated timber was 3 - 4 years prior to year 2012. He said that the audio recording P4 was done on 21/09/2012 at Rudra Maharaj's place. He also said that there was a reason to discuss about the tender amount and it was to calculate the 5% of the total and $12000.00 was given as part of the commission.

[41] The next witness for the prosecution was Thomas Kishore who had been a technical officer attached to Department of Energy. He had been a member of the tender evaluation committee. He explained to you the procedure in evaluating tender documents. He also explained to you about the Bio Fuel Shed project for the people of outer islands that had coconut resources.

[42] Lot of companies had tendered for the Bio Fuel Shed construction project. After evaluation all companies were asked to re-tender, he said.

[43] After evaluating the tenders of all companies, the committee thought of inspecting only on Fijiana Construction Company, he said. Fijiana had the lowest cost, but as they were inexperience in such projects they have visited the company to ascertain their capabilities. They had met the Director Jay Prakash and his son Avin Prakash.

[44] During the evaluation of the tenders, they have submitted combinations of the award of tender with its advantages and disadvantages. One combination had been all 6 to be awarded to Fijiana. Other combination had been 3 to be awarded to Fortech, one to Modern Investment and 2 to Fijiana. That recommendation goes to the tender board, he said.

[45] On 20/09/2012 he had received a call from Avin Prakash. He had asked him for the price difference between the companies that bid for the tender. He had asked if 'Fortech' had a lower bid than theirs. Witness had told him that he is not in a position to give the information. Avin Prakash had also told him that a high ranking government official had demanded a cut for the award of tender. Avin Prakash had not revealed the name of the government officer. Witness had told him not to give into such malpractices.

[46] After that conversation Avin Prakash had called him again. Witness could not recall when. He had asked if another company bid lower. He had again said that he cannot give the information. Then Avin Prakash had told him that the high ranking official was demanding money and that the official wanted to meet with directors of Fijiana. He had not told the name of the official.

[47] In cross examination he said that tender procedure is a secret procedure and one company will try to outbid the other. He said that it is unethical to ask what other company has offered at the time of tender evaluation and prior to the award of the tender.

[48] The next witness was Jai Prakash. He is a Director of Fijiana Construction Limited and is the father of Avin Prakash. He said that on 20/09/2012 he received a call from Rudra Maharaj. Rudra Maharaj had referred to an application they had made and had wanted to see him at Parliament Veiuto at Prime Minister's office. He had asked his son about the application and son had told him that it must be some complaint against them. Finally he had gone to meet Rudra Maharaj at Prime Minister's Office with his son Avin Prakash. The discussion was regarding the tenders his son did to build Bio Fuel Sheds, he said.

[49] Rudra Maharaj had told them that already 3 tenders were given to Fortech Construction. He said that they were upset when they heard that, because Department of Energy had come 2 – 3 times to meet his son to discuss with him about their company.

[50] Mr. Maharaj asked for 10% commission for other 3 tenders, he said. Then the witness had asked Rudra Maharaj that in Prime Minister's Office being a very high cast in Indian religion why would you want to do this. Then accused had told him that his big officers above him in the tender board had told him. Witness said that they decided not to do that. That afternoon he had spoken to Rudra Maharaj and had told him again that Prime Minister is fighting for everybody against corruption in government department. Rudra Maharaj had said that he can't do anything and that big people above him want that, and the accused had asked him to meet him again.

[51] On 21/09/2012 they had gone to parliament house to meet him again and as there was some labour problem going on, Rudra Maharaj had asked them to come to his house at Nakasi.

[52] They have gone to Rudra Maharaj's house in the afternoon. Rudra Maharaj had still wanted the commission, he said. He said that Mr. Rudra Maharaj told them that it will be from contingency extra work, which he could not understand. Avin Prakash had recorded the conversation. After the discussion, he said that he told Avin Prakash that they would not give the bribe to Rudra Maharaj. He said that he went to Rudra Maharaj's house on 2 occasions, on 20th and 21st of September. He said that Rudra Maharaj kept on talking to his son regarding the money to be given to him.

[53] On 24th, they had gone to Prime Minister's office and had met one Rokoura. They had got an enquiry letter to FICAC to inquire. They have met FICAC officers and they have told them to go ahead with the process and to give Rudra Maharaj the money and that they wanted to catch him. Later FICAC officer had come to their office. As discussed they had gone to Rudra Maharaj's place.

[54] After the discussion about the money, his son Avin had given Rudra Maharaj the money. Rudra Maharaj had come with them to the van. Then FICAC officer Mr. Kuli had come and held him and took him, he said. They have taken Rudra Maharaj to custody. He said that while Kuli was taking him to Rudra Maharaj, Rudra Maharaj threw the ANZ plastic with money and cheques to the driveway.

[55] The witness could not recall whether Avin Prakash recorded the conversation on 24th. When the audio recording P5 was played in court he said that was the recording of the conversation between him, Avin and Rudra Maharaj.

[56] In cross examination he said that he made his statement to FICAC on 11/10/2012, that is 18 days after the incident. He said that he did not tell in his statement to FICAC, what he told to Rudra Maharaj about him being a high ranking officer and also that Rudra Maharaj telling him about some big officers of the tender board wanting money, because the officer who recorded his statement told him that he can tell that in court.

[57] He said when he asked the FICAC officer whether few things he can tell in court, FICAC officer had agreed. He said Rudra Maharaj asked for the commission. He said that he did not know that his son had any problem with Rudra Maharaj before. He said that money was given to Rudra Maharaj on the 24th at Rudra Maharaj's house.

[58] He said that he could not recall whether they took any documents to Rudra Maharaj's house on 24th. He said that Rudra Maharaj took the money and put it in his front pocket but he could not recall what Rudra Maharaj was wearing that day. When it was suggested to him that Rudra Maharaj was wearing a T-Shirt without any pocket, he said that it may be and that he cannot recall exactly whether he put it in his front pocket or trousers pocket, but he saw Rudra Maharaj taking the money.

[59] He said that he cannot recall whether his son and Rudra Maharaj both were taken to the porch with him when he was taken by Kuli. However, he said that if he had told that, it is the truth but he cannot recall. He could not recall whether FICAC officer asked Rudra Maharaj where the money was. He could not recall whether Rudra Maharaj denied the allegations. After showing his statement to FICAC he said that he must have denied.

[60] Answering questions by the defence counsel on the events that happened on 24th, he said that another FICAC officer called and advised that the money was recovered from the driveway. He also said that they told the FICAC officer that money was thrown and that's how they recovered the money. He denied lying in court. He said that he was not asked by the FICAC officer when recording his statement, whether Rudra Maharaj threw the money. He said that he may have missed that out in his statement.

[61] The last witness for the prosecution was the Senior Commissioner of FICAC Kuliniasi Saumi. He had been working at FICAC for 8 years and before FICAC he had been working for Fiji Police Force.

[62] He had conducted the investigation in this case. He said that on 24/09/2012 the complaint was registered on an allegation of bribery against a public servant at Prime Minister's office. Other officers were advised to be on standby, he said. Chief Investigator had been at Prime Minister's office to meet the complainant. Chief Investigator had briefed the FICAC officers and they were informed of the allegation and that money will be delivered to the suspect in the afternoon at 7pm. He said, that their role was to be in the vicinity near suspect's house and observe the transaction between complainant and the suspect. Complainants were Jay Prakash and son Avin Prakash and the suspect was Rudra Maharaj, he said.

[63] Money to be delivered had been arranged at complainant's company office. Cash and cheques had been in a ANZ bank plastic. They were in the vicinity of suspect's house 40 – 50 minutes before the time that was discussed on the 24th. He explained to you where he was placed. He could see the complainant and the suspect from where he was standing, he said.

[64] When complainants arrived, Accused had taken them to the porch and they had been sitting on a sofa in the porch. Meeting had taken about 50 minutes to one hour. He had heard them talking in Hindi which he could not understand. As discussed before, the complainant had signaled by massaging the head. Then he had informed the rest of the team by phone and had gone to the suspect's house from where the complainant's vehicle was parked. At that time Avin Prakash had already opened the driver's door. When he walked from the passenger side, Jay Prakash had been an obstruction and therefore he had got hold of him and taken him further to the suspect Rudra Maharaj within a moment. He had identified himself to Rudra Maharaj and had asked him what he was holding. Rudra Maharaj had said that 'I don't have anything'. He said, that based on the indication given to him, he confirmed that the money was in the possession of Rudra Maharaj. That is why he had asked for what he had, he said. He had searched him but could not find anything, he said. Then he had gone to the place where they were sitting at the porch with Jay Prakash. Same time he was asking for the money, he said. He said that then he was advised by his co-investigators and the complainants that the money was thrown by Rudra Maharaj. Then he had come back and confirmed that the money was lying on the driveway beside the complainant's vehicle, he said. He had got the money photographed.

[65] He said that as agreed before at the company, conversation between the complainants and accused was recorded by the complainant. He had received more than 2 conversations from the same device and one was relevant to the investigation which was on the 24th evening.

[66] He had further investigated. He had looked into contacts of the persons whom accused was contacting at Fiji Procurement office. He had got the telephone details. He said that Jay Prakash's number was 9923747 and Director Procurement number was 9904423. Rudra Maharaj's number had been 9994107.

[67] Rudra Maharaj's telephone details were marked in evidence as P6. Rudra Maharaj had called Director Procurement on 24/09/2012 at 19.11pm. At that time the witness had been at Nakasi, close to Rudra Maharaj's house.

[68] He said that Director Procurement is a member of government tender board by virtue of his office and also he is aware of all the decisions made by the tender board in relation to any contract made by the government to be awarded. Decisions on successful bidders will be conveyed to them by him.

[69] When he called procurement officer at 19.11 pm he had been with the complainants and meeting was proceeding with the complainants, he said.

[70] Giving evidence on P6 telephone details, he said that on 20/09/2012 Rudra Maharaj had made Jay Prakash 4 calls. He also gave the times he called. He had also made Director Procurement 2 calls on 20th. The time difference between the time he called Jay Prakash and when he called Director Procurement is 3 minutes, he said.

[71] On 21st September he had taken 7 calls to Director Procurement and one to Jay Prakash. After taking 3 calls to Director Procurement he had called Jay Prakash after about 14 minutes, he said

[72] On 24th he had called 3 times to Director Procurement. One call was made to Jay Prakash at 15.48. Call between Rudra Maharaj and Director Procurement at 19.11 had been only for 31 seconds. He said that the tender number for Bio Fuel contact was WSC 177 – 182/2012.

[73] In cross examination he said that he got the telephone calls made by the complainant as well. He said that P6 includes the complainant's calls as well. He had not requested from Vodafone specifically for call records of the complainant, but the accused call records reflects the complainant's calls as well, he said. He said that he got the call records of the accused from the date he made the 1st call to the complainant. That is from 20th September 2012 until 24th September 2012 because that was the period relevant to the investigation.

[74] He said that he cannot comment on whether the accused called the Director Procurement an average of 5 times a day from January to September 2012. He said that the records of telephone calls from 20th – 24th September were shown to accused during recording of his caution interview statement and he was given an opportunity to explain. The accused explanation had been that the Director's father was to cook for a family engagement party of his son. The witness said that the accused had called basically 5 calls in a day between 20th and 24th September to Director Procurement and that explanation was recorded in fairness to the accused. He said that the accused provided information about the engagement of his son. He said that there was no need to verify whether there was an engagement party as they accepted what Maharaj said on that. He said that both giver and the taker of a bribe commit an offence. He also said that the accused solicited the money.

[75] He said that the accused denied receiving money. He denied FICAC encouraging the complainant to trap the accused. He said that when the accused asked for the money, the matter was reported to FICAC and they followed the appropriate process of investigation to establish the truth. He agreed that Rudra Maharaj had no say in tender approval. When he was asked whether he saw the complainant giving money to the accused, he said that he could only see part of their bodies from the shoulder upwards when they were seated on a sofa, so that he cannot confirm.

[76] He said that he told accused to give him what he has in his hand based on the indication given to him by the complainant and that he thought that the money was in Rudra's possession.

[77] He said that he searched Rudra outside of the porch in front of the complainant's vehicle. Then he had gone to the porch thinking that Rudra Maharaj may have left the money there. Then he was advised by the co-investigators that the money was lying beside the vehicle and he was further advised that Rudra had thrown the money. He said that Avin Prakash had seen Rudra throwing the money.

[78] Caution interview statement of the accused was produced in evidence through this witness by the defence marked as Defence exhibit 1 and the charge statement was submitted as D2. The reply of the accused to the allegation made against him in the charge statement was read to you.

[79] The witness also said that the accused fully cooperated with the FICAC investigation.

That was the evidence for the prosecution.

Lady and Gentlemen assessors,

[80] At the end of the prosecution case you heard me explain several options to the accused. He has these options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains with the prosecution all times. The accused person opted to remain silent and it is his right to do so. You must not draw any adverse inference from his choice to remain silent.

[81] You heard the evidence of many witnesses which I summarized. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
[82] You may remember when the complainant Avin Prakash gave evidence; he said that after the accused accepted the money, as the FICAC officers failed to show up when he gave the signal by massaging his head, he had to continue the conversation with the accused until the FICAC officers showed up. During that continued conversation, he had asked the accused how much "Fortech" gave him. The accused had replied 100000. You may disregard that portion of evidence of Fortech giving 100000, as the accused is not charged for that. You should not have any prejudice against the accused due to that portion of evidence.

[83] You may have observed that when some witnesses gave evidence, there were some inconsistencies between their evidence before this court and the statement given to the police. For example Avin Prakash in his evidence said that he debated with the accused when the accused asked for commission. When he threatened him with FICAC accused had told him that FICAC falls under him. However Avin Praksh had not told the FICAC in his statement that the accused told them that FICAC falls under him. Further, you may remember there were some inconsistencies between the statement of Jay Prakash and his evidence in court where he had not told certain parts of the conversation they had with accused in his statement to FICAC. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However, you should also take into consideration the fact that such inconsistencies between the evidence in court and any other previous statement can affect the credibility of the witness. When assessing the credibility of the witness you may also take into consideration any explanation given by the witness for such inconsistency.

[84] Lady and gentlemen assessors, may I direct you on circumstantial evidence. In circumstantial evidence you are asked to place the story together from witnesses who did not actually see the 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.

[85] Let me give you an example of drawing inferences which does not arise on the facts of this case but which illustrates the need for care in judging whether the fact proved supports the inference of guilt: If my fingerprint is found in the living room of my neighbour's home, it is a sound inference that at some stage I have been in his living room. It would not, however, support an inference that I was the burglar who stole his DVD recorder from his living room. If you accepted my neighbour's evidence that I had never been invited into his home, then, in the absence of some acceptable explanation from me, you might infer that at some stage I had been in my neighbour's home uninvited. You may or may not be driven to the further conclusion that I was the burglar. But, if you also accept that there was found a second fingerprint of mine at the point of entry or, that in my shed there was found a DVD recorder which my neighbour recognizes as the one stolen from his living room, you would, no doubt, conclude so that you were sure that I was the burglar. You will notice how the inference of guilt becomes more compelling depending upon the nature and number of the facts proved.

[86] What conclusions you reach from the evidence is entirely for you to decide. When you are considering what inferences you should draw, or what conclusions you should reach, it is important to remember that speculation is no part of that process. Drawing inferences and reaching conclusions are not the same as fitting the facts to a particular theory.

[87] Having decided what evidence you accept, consider whether, looked at as a whole, it drives you to conclude, so that you are sure, that the accused is guilty.

[88] It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused persons having committed the crime. To find him 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 persons committed the crime.

[89] Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven is credible and truthful.

[90] In this case, the prosecution led the evidence of Avin Prakash and Jay Prakash as direct evidence to show that the accused accepted the advantage in terms of money and cheques on account of using influence in procuring the contract to build Bio Fuel Sheds. If you believe the evidence of any of those two witnesses as true and as credible and that the prosecution has proved the elements of the offence as I explained to you beyond reasonable doubt, you may find the accused guilty. The prosecution also led other evidence such as evidence of Thomas Kishore, Kuliniasi Saumi and the telephone call details of the accused as other circumstances. Defence produced the caution interview statement of the accused. You may also consider those circumstances and consider what inferences you may properly draw from those facts.

[91] You may remember that when the investigating officer Kuliniasi Saumi gave evidence, defence counsel questioned him whether he found that Rudra Maharaj had no say in tender approvals. The witness agreed that the accused had no say in tender approvals. I must direct you that the law says that if the accused in a case of this nature accepted any advantage on account of doing something or forbearing to do, it shall be no defence that he did not actually have the power, right or opportunity to do or forbear.

[92] You may also remember in cross examining the same witness, the defence counsel questioned as to whether the bribe giver also commits an offence. May I direct you that the law says that in proceedings of this nature, no witness who delivered the bribe should be treated as an accomplice (meaning participator in an offence), by reason only of any payment or delivery of the bribe.

[93] Lady and Gentlemen assessors,

Prosecution says that the accused accepted the $2000 cash and the two cash cheques amounting to $5000 each from Avin Prakash, on account of using influence in procuring the contract pertaining to tender No. WSC 177-182/2012. The defence says that the accused never asked or accepted the money and he denied the allegation during the caution interview as well as the formal charge. Defence says that he was trapped and framed because of a previous issue the complainant had with the accused.

[94] In his caution interview statement the accused had said that he did not know about any tenders but the complainants were asked to come to his house as they wanted to make a complaint on the credibility of the government tender process. He also had said that he accommodates receiving of complaints at his residence. He also had said that the continuous calls he made to the Procurement Director during 20th to 24th September was to confirm his father's availability to do the cooking for his son's engagement and to get the progress from his father as it was few weeks for his son's engagement.

[95] You heard the evidence of the complainants. You also heard the audio recordings and also the transcripts of the same which were admitted in evidence without objection. You decide whether the complainants were truthful. You decide whether the audio recorded conversation was between the complainants and the accused as alleged. You decide whether it was truthful when the accused said in his caution interview statement, that the meeting of the complainants at his residence was to entertain a complaint, or whether the meeting was to discuss about the tenders and to accept the bribe as alleged by the prosecution. You decide which witnesses are truthful and what parts of their evidence you accept.

[96] You must use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.

[97] On the evidence placed before you and on applying the law as I explained to you, you decide whether the prosecution has proved all the elements of the charge beyond reasonable doubt. Your opinions on the charge must be either guilty or not guilty.

[98] Lady and Gentlemen Assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

[99] Any re-directions or further directions?

Priyantha Fernando
Judge

At Suva
11th February 2016

Solicitors
Office of the Fiji Independent Commission Against Corruption
Office of Iqbal Khan & Associates for the Accused.