State v Anjani - Summing Up [2018] FJHC 744; HAC60.2016 (14 August 2018)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 60 of 2016

STATE

V

ARTIKA ANJANI

Counsels: Mrs. D. Kumar for the State
Mr. A. Kohli for the Accused

Dates of Hearing: 06, 07, 08, 09, 10 August 2018
Date of Summing Up: 14 August 2018

SUMMING UP

1. Madam and Gentlemen:

2. The time has now come for me to sum up this case for you. My duty in summing up is two fold. I will direct you on the applicable law and you must accept what I say about the law. I will sum up the evidence for you but you don’t have to accept what I say about the evidence or the facts. That is because you are my advisors and you will assess the evidence and after applying the law to that evidence you will tell me in your opinion whether the accused is guilty or not of theft and arson. I don’t have to follow your opinions, but I will give them great weight when I come to make the final judgment of the Court.

3. You must judge this case solely on the evidence that has been placed before you in this Courtroom and on nothing else. You may have read about the fire in Seaqaqa when it happened, but you will not take into account anything reported at that time.

4. Evidence in this case consists of the oral testimony of all witnesses, together with all documents, that is the admitted facts, the attached fire report and the record of interview with the accused. You may accept the evidence or reject it. You may also accept part of a witness’ evidence or part of a document and reject the rest. It is entirely a matter for you. You will not consider as evidence anything that someone has told you outside or anything that you may have read or seen in the media. You may have heard me in the course of the trial express an opinion or make a remark about the evidence. You must ignore that completely and come to your own views about the evidence placed before you.

5. Counsel addressed you this morning on how you should find the case. That is their duty to the Court. You do not have to accept what Counsel tells you, unless you agree with them. You will make up your own minds on the evidence.

6. Please do not be influenced by any sympathy or prejudice you may feel towards anybody connected with the trial; it is your duty to come to your opinions solely on the facts as you find them in accordance with my directions on the law.

7. In this regard I ask you not to feel sorry for the accused because she was gullible and fell victim to a scam. It is recognized by everybody that she was the victim of deceitful actors abroad but that has nothing to do with your findings on the law as I will direct you.

8. I repeat what you have been told several times about the burden and standard on the prosecution. You hear this often because it is very important. The State must prove to you so that you are sure that the accused is guilty of these crimes. That is a burden on the State throughout the trial and to be sure means that there can be no reasonable doubt in your minds.

9. As you are aware the accused has been charged with and tried on 2 counts; one of theft and one of arson.

10. In our law in Fiji, theft is committed when a person dishonestly appropriates money belonging to another with the intention of permanently depriving the other of the property.

11. Let me break that down for you. To prove the offence the State must prove to you so that you are sure:

1. It was this accused, who
2. Dishonestly
3. Took money belonging to another, and
4. Intended to permanently deprive the other of that property.
   

12. In this case then, the State is saying that it was Artika who they say committed the offence. It has never been suggested that the wrong person has been charged so you can accept that the first element is satisfied.

13. They say that she was dishonest, that is something for you to decide.

14. They say that she used money belonging to the Post Office, again that is for you to decide but you might bear in mind that she is not denying that. She admits that she used Post Office money without anybody knowing

15. And finally they say that she never intended to repay the money.

16. This repayment issue has been a central dispute in this trial, Mr. Kohli pointing to the numerous times his client says in her cautioned interview that she would repay the monies out of the loan she was expecting.

17. However, the law in Fiji states that if she has the property of another and uses it as if it was her own without regard to the owner’s rights then she does intend to permanently deprive the owner of the property. That may sound a little complex but what it means is that if you find that Artika has dishonestly used the Post Office money treating it as her own then her intention to repay the money is irrelevant. The law says that she has intended to keep the money permanently.

18. Therefore Madam and Gentlemen you may have little trouble with the first count. Artika has admitted in her evidence before us on Friday that she did use the post office $43,000 without authority and treated it as if it were her own money

19. The legal definition of arson is much simpler. The State must prove to you so that you are sure that:

1. It was indeed Artika, who
2. Willfully and unlawfully,
3. Set fire to the Seaqaqa Post Office building.
   

20. Artika is faced with two charges so you must look at each charge separately. Just because you might think that she is guilty of one charge does not necessarily mean she is guilty of the other and vice versa.

21. The Prosecution case comes mainly from agreed facts which you have and which I direct that you must accept those facts as proven and correct. The other major part of their case comes from the record of interview the Police had with Artika when she was being questioned about these matters.

22. I deal with each of these in turn.

23. The facts tell us that Artika was the sole charge Post Mistress of Seaqaqa Post Office from 2014 until September 2016.

24. As part of her duties she was meant to hold a small amount of cash at the post office, but send any extra cash to Labasa for banking. In August and September 2016 she did not send any excess to Labasa and records show that she was holding $43,000 excess at Seaqaqa.

25. Between the end of August and the 14^th September 2016 she sent $43,000 to Jonetani in Sigatoka by money order. Jonetani was the fraudster’s agent in Fiji. This money was Post Office money and she had no authority from the Post Office to use this money.

26. On 13 and 14 September she was asked by Post Office Finance Officers to send the money to Labasa but she did not.

27. That evening the Post Office caught fire. A fire that seemed to have started from the counter area. The fire totally destroyed the building and its assets.

28. A fire report attached to the admitted facts says that the fire was suspicious in nature, that there was no sign of short circuit of the wiring near the suspected point of origin and that the fire warranted further investigation from the Police.

29. The second plank of the prosecution case is the caution interview in which it appears that Artika is admitting using the Post Office cash to send to a man in Sigatoka by way of TMO and admitting to setting fire to the building on September the 14^th. She says that she was sending this money as fees to process a loan that she had secured on line from a man in France. She stated that she would repay the Post Office monies that she was using from the loan monies when she received them.

30. She also confesses in this interview to setting fire to the Post Office by lighting a candle under the front counter, a candle that she had brought from home.

31. Now the defence says that these admissions in the interview relating to arson were never made and that she was in great fear after being threatened by Sergeant Nilesh who was present at the time of the interview. The answers about the candle she says were fabricated by the Police.

32. The way you should approach this interview, assessors, is in steps.

33. Step One. If you think that the Police did anything improper during the interview and by improper I mean threatening her or denying her the right to have her lawyer of choice present, then you will discard the interview and not take it into account in your deliberations.

34. Step two. If you think that nothing improper happened during the interview you must decide whether the answers that she gives in the interview are hers and not fabricated by the Police. If that is the case then the interview is evidence for you to accept and rely on.

35. You must be sure that there were no threats and that the answers are hers and they are true.

36. In this regard you will bear in mind the evidence of Satyawan, the senior member of the community who the State says came to see her as an independent witness to check on her treatment by the Police. He tells us that not only did Artika not complain about her treatment but she also told him that she took money and had set fire to the Post Office. The defence says that Satyawan was not independent at all and that he was asking questions from a piece of paper he had. Artika told us that Satyawan never asked her about the fire and she certainly didn’t tell him she set fire to the building.

37. At the beginning of the trial you heard the Senior Post Office Manager who told us of the night of the fire and how he went there and saw Artika in the crowd. She told him that the excess cash held at Seaqaqa was in a wooden cupboard because she was late in preparing it to send to Labasa. It was in the cupboard because it would not fit into the safe. He said that she had never said she would repay the money and up until now the money has not been repaid.

38. Well Madam and Gentlemen that was the case for the prosecution. You will take it all into account. The evidence of the Divisional Manager and the evidence of the 5 Police Officers; along with the record of interview if you think it was voluntarily made without threat or denial of her right to see a lawyer of her choice.

39. Now before I leave the Prosecution case I want to direct you on what the law calls circumstantial evidence. Even if you reject the caution interview because you think that it was unfair with threats and a denial of her rights to counsel of her choice, then you may think that the circumstances of the facts as you accept them may give rise to an irresistible inference that she did in fact set the fire.

40. The State is saying in the matter of the arson count, that apart from the evidence of the caution interview they are relying on evidence of various circumstances relating to the crime and the accused which they say taken together will lead to the sure conclusion that it was the accused who committed the crime.

41. Circumstantial evidence can be powerful evidence, indeed, it can be, as, or even more powerful than, direct evidence, but it is important that you examine it with care – as with all evidence – and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt, or whether on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.

42. 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.

43. You heard me tell Artika what her rights are in defence. She could remain silent and say that the State had not proved the case against her to the required standard or she could give evidence under oath to the Court. Either way she could call witnesses if she wished.

44. She chose to give evidence. Now I must direct you that an accused person does not have to prove anything to you. It is the State that must prove to you so that you are sure that she committed these crimes and that burden of proof is on the State throughout, no matter what the accused says in her evidence.

The Accused’s Evidence

45. In her evidence Artika told us of the time she was the sole employee of the Post Office in Seaqaqa as the Post Mistress. At the time she befriended a lady police officer who told her about a man, Michael Pago in France who was offering loans on-line at a very good rate and you then heard about her application for the loan to buy a property and stop her mother-in-law from criticizing her. She sent an e-mail to Michael and in return he gave her the name of his agent in Sigatoka, one Jonetani. The loan was for $150,000 and she was required to pay $50,000 as a deposit. She sent $43,000 in her own name.

46. The day of 14^th September looms large in her story. That was the day she sent the last amount of money to Jonetani, and that was the day that Head Office in Suva asked her to transfer all the excess cash she was holding to the Labasa Office. She did not have the cash so she contacted her Uncle Benkat, a real estate agent, and asked him to lend her the money. He agreed but they did not meet that day. That evening, still 14^th September, a boy called her and told her that the Post Office was on fire. She was shocked. She still had $7000 left to pay of the deposit and then the loan would have come through. She said that if the Post Office had not burned down, she would have got her loan. On the 14^th September she did not know that it was a scam.

47. She told us that she didn’t set fire to the building, but she did use the Post Office money.

48. She thought that there was a problem with the fire alarm system in the Post Office. She told the Police and she told the supplies Department in Head Office. A blinking light indicates a wiring fault.

49. She asked Uncle Benkat for the remaining $7,000 to pay off the deposit, but when he looked at the documents he told her that it was a scam – he had seen similar bogus documents before. He tried to talk to Jonetani on her behalf to get a refund but Jonetani cut the line and wouldn’t answer after that.

50. Police Officer Satish called her and asked her to send him the e-mails relating to the loan. She did that but he never asked her anything about the fire. She first heard that they thought that she had set the fire was on the 17^th November 2016 when she was interviewed. Officer Satish was very polite and asking questions about the TMOs. She told him about Michael in France and she told him about her mother-in-law’s problems. When the interview started she asked for Mr. Kohli to be there, not a Legal Aid counsel but Satish told her that Mr. Kohli was busy in Court and he phoned the Legal Aid Counsel and got her to speak to that lady counsel.

51. She said that she did not know any Legal Aid Counsel but she knew Mr. Kohli and felt comfortable with him. She spoke to the Legal Aid Counsel who told her she couldn’t help her on the phone but if the interview could be suspended for two hours she could come. Satish didn’t wait for her and she didn’t come.

52. When the interview was suspended at 1150hrs for Nilesh to go through the e-mails he did not do that. Instead he approached and told her that she had set the fire to cover up the evidence. When she denied that he banged the table and said: “I am strict, not like easy Labasa Officers, I am from Suva and I have the authority to lock you up until Monday”. He raised his hand as if to strike her, but he didn’t. He told her that he was going to call her family members in to tell them that she had stolen the money and burnt the Post Office. She was frightened and begged him not to call her mother-in-law in. He said he would bring in her father-in-law and her husband and she had to confess in front of them. They came and when they asked her if she did it, she just nodded. Eventually Mr. Kohli came and talked to the officers about bail.

53. The Senior Citizen Satyawan did come to talk to her. He had a piece of paper with him and they didn’t talk about the fire at all.

54. Well, assessors, that was her evidence. I have set it out in full to be fair to her but again if I have left anything out which you think is important, you will give it the weight you think fit.

55. If you think that she was denied her legal rights and she was frightened by the threatening behaviour of Nilesh then you will discard her interview and not use it in your deliberations.

56. Just before I finish these directions I want to say something about things you heard during the trial. One of my duties as a presiding Judge is to make sure that we keep to time scales as much as we can and that to that end we do not deal with a lot of irrelevant matters when Counsel are dealing with the witnesses. At times you heard me growl at Mr. Kohli for what I thought were irrelevant matters. That does not mean that I was siding with the prosecution and being against the defence. Just because I thought something was irrelevant does not mean that it is. It is for you as Masters of the facts to decide what is or is not relevant in this trial.

57. Well that is all I wish to say to you at his stage. You will now retire to consider your opinions. Your possible opinions will be guilty or not guilty. It would be best if you would all agree but if that is not possible I will take your individual opinions. Please let a member of my staff know when you are ready and I will reconvene the Court. However, just before you leave I will ask Counsel if they wish me to add of alter any legal direction I have give you.

58. Counsel?

P. K. Madigan
Judge

At Labasa
14 August 2018