Fiji Independent Commission Against Corruption v Maharaj - Judgment [2016] FJHC 107; HAC334.2013 (12 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

Date of Judgment : 12th February 2016

JUDGMENT

1. The accused is charged with the following count of Bribery.
   

Charge

(Complaint by Public Officer)

Statement of offence (a)

BRIBERY: Contrary to Section 5 (2) (a) of the Prevention of Bribery Promulgation No. 12 of 2007.

Particulars of offence (b)

RUDRA MAHARAJ on the 24th day of September 2012 at Suva in the Central Division 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 to total of $10,000 as a reward from AVIN PRAKASH on account of using influence in procuring the contract pertaining to tender number WSC 177-182/2012.

2. After trial three assessors unanimously opined that the accused is guilty of the offence of Bribery as charged. I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
3. What this court has to consider is whether the prosecution has proved all the elements of the offence beyond reasonable doubt. It is an agreed fact that the accused was a public servant within the meaning of the Prevention of Bribery Promulgation No. 12 of 2017 during the time material to this case.
   
4. In terms of section 124 of the Criminal Procedure Decree, negative averments are to be proved by the accused person on balance of probabilities. In this case the accused never took up the position that he had the lawful authority or a reasonable excuse to accept the advantage (in this case $2000 cash and the two cheques amounting to $10000). The position taken up by the defence when cross examining the prosecution witnesses was total denial of soliciting or accepting the money.
   
5. Therefore the elements that the prosecution has to prove beyond reasonable doubt to find the accused guilty of the offence are:
   
   • (1) That the accused accepted and 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.
     
6. At the trial, prosecution called 4 witnesses and the accused opted to remain silent which was his right.
   
7. Complainant Avin Prakash testified in court as to how he bid for the tenders with the Department of Energy to build the Bio Fuel Sheds in 6 islands. He said that the officers of the technical evaluation committee who met him at his office informed him that they would recommend their company Fijiana Builders for the contracts. The technical evaluation committee in their combined recommendations had recommended all 6 tenders to be awarded to Fijiana Builders in the first combination. 2nd combination had been, 3 to be awarded to Fortech Construction, 1 to Modern Investment and 2 to Fijiana. This was confirmed by the witness Thomas Kishore who was a member of the technical evaluation committee who can be considered as an independent witness.
   
8. The complainant Avin Prakash clearly testified the sequence of events as to how the accused called his father and wanted to meet them at Parliament House and that the accused solicited the bribe when they met him at Parliament house. His evidence was that they did not want to inform FICAC or the Police the same day because they did not have any evidence to prove. Therefore they (his father and himself) had decided to record the conversation, which they did.
   
9. Avin Prakash also gave evidence about the discussion he and his father had with the accused when he solicited the money. This meeting had been at the residence of the accused and the conversation was recorded.
   
10. Finally, after reporting the matter to FICAC, the money ($2000 and 2 cheques amounting to $5000 each) had been given to the accused on the 24th at his house. His evidence was that after accepting the money the accused walked with them to the vehicle and threw the ANZ bank plastic containing money and cheques when he saw the FICAC officer coming. The witness Avin Prakash had recorded the conversation between him, his father and the accused when the accused accepted the money from him on the 24th September 1012 at the residence of the accused.
    
11. The evidence of the complainant Avin Prakash was consistent and he clearly testified as to how the accused solicited and accepted the money. FICAC officer Kuliniasi Saumi who conducted the raid after receiving the complaint also testified in court. I observed the demeanour and deportment of all the witnesses who testified in court and I have no reason to disbelieve the evidence of the witness Avin Prakash that the accused solicited and accepted the money from him to get them the tenders for the construction of Bio Fuel Sheds as charged.
    
12. The position taken by the defence in cross examination of the prosecution witnesses was that he never solicited or accepted the money.
    
13. The audio recordings of the two conversations between the complainant Avin Prakash, his father and the accused were admitted in evidence without objection. The conversations had been in Hindi Language. Therefore, the transcript of the audio recording in English Language was also produced in evidence with agreement of the parties.
    
14. The caution interview statement and the charge statement of the accused were submitted in evidence by the defence through the prosecution witness FICAC officer who caution interviewed the accused. In his caution interview statement the accused had told the FICAC that he did not discuss on any tenders but the complainants were allowed to come to his house to entertain a complaint against the government tender process.
    
15. It is clear from the transcript of the audio recording which was tendered without objection that the accused solicited the money and also accepted the money. It is also clear from Exhibit P5A (transcript of the audio recording dated 24th September 2012) that the conversation was not with regard to a complaint on the government tender process as claimed by the accused but was about the money to be given to the accused by the complainants. At page 10 of the said transcript P5A, when the accused referred to 'This is 12', it is also clear that it was about the money received by the accused and not of any complaint against the tender process. The audio recordings and the transcripts support the evidence of the complainant Avin Prakash that the accused accepted the money as alleged.
    
16. Witness Thomas Kishore also confirmed that Avin Prakash informed him twice that one high ranking government officer was demanding a bribe and that he told him not to give into such malpractices. I find that the position taken by the defence that the complainants came to his residence to make a complaint against the government tender process is far from the truth and that it is an afterthought to circumvent the situation as he has to explain why the complainants were entertained at his residence
    
17. There were some inconsistencies shown between the evidence in court and the statement to FICAC of Avin Prakash. There were some omissions where he had failed to tell FICAC on certain things that were said during his conversation with the accused. I find that those omissions do not go to the root of the matter and that would not affect his credibility at all. I am satisfied that the complainant Avin Prakash is a truthful and a credible witness when he said that the accused accepted the money and threw the same on seeing the FICAC officer approaching him. The FICAC investigating officer Kuliniasi Saumi confirmed that tender number for the Bio Fuel Sheds contract was WSC 177-182/2012.
    
18. On the above evidence, I find that the prosecution has proved beyond reasonable doubt that the accused accepted the money as alleged from Avin Prakash, on account of using influence in procuring the contract pertaining to tender No. WSC 177-182/2012. Hence, the prosecution has proved all the elements of the offence of bribery as charged beyond reasonable doubt. Therefore, acting in terms of section 237(2) of the Criminal Procedure Decree 2009, I accept the unanimous opinion of the assessors that the accused is guilty of the offence of bribery as charged and convict him accordingly.
    

Priyantha Fernando
Judge

At Suva
12th February.

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