IN THE MAGISTRATE’S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 355 of 2010

State

v.

Apolosi Pio Sekitoga

For State: FICAC – Ms E. Leweni 
Accused : Present - Represented by Mr R. Prasad

Judgment

The Accused is charged with:

Count One : False Pretence, contrary to Section 309 (a) of the Penal Code

“Apolosi Pio Sekitoga on or about 2nd January 2008 at Sigatoka in the Western Division with intent to defraud by false pretence caused $2450 to be paid to Roadworks safety & Civil Products for the benefit of the said Roadworks Safety & Civil Products Ltd from the Department of Water and Sewerage for 10 numbers of 25mm Brass Ferrule Cock’s knowing that those 100 Ferrule Cock’s were not delivered by Roadworks Safety & Civil Products Ltd to Department of Water & Sewerage at Sigatoka Water Supply on the Local Purchase Order No. 740492 dated 30-11-07 ”

Count Two : Abuse of Office, contrary to Section 111 of the Penal Code. 

“Apolosi Pio Sekitoga on or about 8th February 2008 at Sigatoka in the Western Division being employed in the Public service as a Water Supervisor in the Department of Water & Sewerage did an arbitrary act prejudicial to the rights of the Department of Water & Sewerage by acknowledging the receipt of 100 number of 25mm Brass Ferrule cocks by the Department of Water & Sewerage on 08-02-2008, whereas 100 numbers of 25mm Brass Ferrule Cocks were not received by the Department of Water and Sewerage on such date and in doing so abused the authority of his office .”

The offence of false pretence is complete upon prove that the pretence was made, that the money was obtained, with intent to defraud and that the pretence was false to the knowledge of the accused (R v Dutt 8 Cr App R 51). The offence is codified in section 309 of the Penal Code. Section 309 mirrors section 32 of the English Larceny Act 1916 and therefore the English authorities are relevant.

Section 309 reads:

"Any person who by any false pretence –

(a) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or

(b) with intent to defraud or injure any other person fraudulently causes or induces any other person –

(i) to execute, make, accept, endorse or destroy the whole or any part of any valuable security, or

(ii) to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security, is guilty of a misdemeanor, and is liable to imprisonment for five years."

Section 308 of the Penal Code defines false pretence as:

"Any representation made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence."

To establish this charge, the State must prove three elements.

1. First, that the accused obtained the possession, ownership or benefit of any chattel, money or valuable security (or got any chattel, money or valuable security delivered to a third party).

2. Second, that the accused obtained that possession, ownership or benefit by means of a "false pretence". That is, that there is a direct link between the use of a false pretence and the obtaining of the possession, ownership or benefit. There are three stages to analyzing whether there has been a "false pretence". The State needs to prove:

(i) That there was a "representation", that is, a statement about a matter of present, or past fact, or a statement about a future event, or a statement about an existing intention, opinion, belief, knowledge or some other state of mind;

(ii) That the representation was "false". It will be a false representation if the person making it knew it was false. In short, that the statement was a deliberate lie;

(iii) That the false representation was made with the intention of inducing the person to whom it was made to act on it.

3. Third that the false pretence was made "with intent to defraud". To defraud someone is to deprive that person of something by dishonestly causing that person to believe something that is not true. A person does something dishonestly if he or she does it deliberately and knowing that it is in breach of his or her legal obligations. Even if this is established, if it is claimed that D nevertheless believed that he was "justified" in departing from such a legal obligation, or was "entitled" to so act, it must be shown that D did not honestly believe this.

In summary, the State must prove that the accused without justification or entitlement told a deliberate lie, intending that the complainant would believe it and thereby hand over or deliver something which he or she would not have done if the truth had been known.

The offence of abuse of office requires proof of the following elements:

1. That the accused persons were employed in the public service,
2. That they acted in abuse of authority of their office,
3. Their act was arbitrary,
4. That the act was prejudicial to the rights of another.

The burden of proof in this case is on the Prosecution, the State, which is FICAC in this case. The Prosecution is required to prove all the elements of the charge the accused is charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails. 

Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.".

The Prosecution called 7 witnesses. Pw-1 was Lanieta Marama, Pw-2 – Ram Chandran Nair, Pw-3 – Peni Tove, Pw-4 – Ranjani Lata, PW-5 Sailesh Naidu, Pw-6 - Kelera Naikama, and PW-7 – Maika Rauqera. 

The accused gave sworn evidence.

The Court noted all the evidence and the documents that were tendered in this case. PW-1 to the best of her ability outlined the procedure in making payments to the supplier once the goods were supplied. In re-examination she told the Court that "cheque is to be released after all stock is delivered. Lautoka consults us before cheque is released." It is noted by the Court that the green copy of the LPO is to be retained by the indenting officer until goods have been received or services performed and then certified to be complete and then forwarded to the Head Office. The Green Copy of the LPO was not certified by anyone; even the accused who was the Supervisor did not certify the Green copy of LPO. He did not certify that the payment was to be made and neither did he certify that the goods were received. 

As to the evidence of Pw-1 - Lanieta Marama and Pw-4 – Ranjani Lata the Court does not believe them as they did not properly perform their duties as clerical officers. They were required to follow the procedures, which they failed to and they have as a consequence in their evidence blamed the accused after they allowed the payment to be made to Roadworks Safety & Civil Products Ltd. Set procedures for the delivery and certification by department was not followed. The accused did not mislead the officers and neither did he falsely allege that goods were received when they were not. 

It was Pw-1 - Lanieta Marama and Pw-4 – Ranjani Lata's duty as Chief Clerk and clerical officers to see that all goods were delivered and the green copy of the LPO was certified by the receiver or the Supervisor before the cheque was prepared. The Court does not believe PW-4 Ranjani Lata when she says she called the accused and he told her to release the cheque. Pw-1 - Lanieta Marama who was the chief clerk in her evidence told the Court that the cashier, which is PW-4 Ranjani Lata was trying to call her but called the Supervisor, the accused. The procedures which these Accounts Officials have stated are now being stated to save themselves, which is after they failed to perform their duties. The first question is how the cheque prepared without confirmation that all goods have been delivered. The second is what was the Sigatoka Office Chief Clerk doing that she failed to pick up that all the goods were not delivered and her office forwarded the green copy for the processing of the cheque. 

From the evidence of the prosecution witnesses, mainly Pw-1 - Lanieta Marama and Pw-4 – Ranjani Lata the Court finds that they failed in their duties and are blaming the accused, the Water Supervisor. 

The Court also finds from the evidence before it that accused did not make false pretences or abuse the authority of his office. The Court is not satisfied beyond reasonable doubt as to the guilt of the accused for both the counts. 

The accused is acquitted. 28 days to appeal. 

Chaitanya Lakshman
Resident Magistrate
11th April 2012