State v Rokotakilai [2013] FJMC 356; Criminal Case 328.2009 (27 September 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 328/09

State

v.

Sisa Rokotakilai

Prosecution: ASP Yunus
Accused : Present Represented by Mr Niko Nawaikula

Judgment

Introduction
The accused is charged as follows:

First Count

Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, on the 5th day of February 2009 at Suva in the Central Division, with intent to defraud obtained from Emele Jivika the sum of $50.00 in monies by falsely pretending that the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Second Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, on the 21st day of February 2009 at Suva in the Central Division, with intent to defraud obtained from Ilaitia Sikinairai the sum of $300.00 in monies by falsely pretending that the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Third Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, on the 24th day of February 2009 at Suva in the Central Division, with intent to defraud obtained from Nemia Bainivalu the sum of $300.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Fourth Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, on the 11th day of February 2009 at Suva in the Central Division, with intent to defraud obtained from Moape Rabitu the sum of $300.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Fifth Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, sometimes in January 2009 at Suva in the Central Division, with intent to defraud obtained from Timoci Tukana the sum of $200.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Sixth Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, sometimes in February 2009 at Suva in the Central Division, with intent to defraud obtained from Kalevate Talebua the sum of $200.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Seventh Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, on the 5th day of February 2009 at Suva in the Central Division, with intent to defraud obtained from Pita Tiqatabua the sum of $300.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Eighth Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, sometimes in January 2009 at Suva in the Central Division, with intent to defraud obtained from Atunaisa Ralagi the sum of $30.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Ninth Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, sometimes in January 2009 at Suva in the Central Division, with intent to defraud obtained from Ulamila Dugu the sum of $30.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Tenth Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, on the 2nd day of February 2009 at Suva in the Central Division, with intent to defraud obtained from Isoa Natuituba the sum of $200.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Friut Pickers Agency and was in a position to arrange for Work Visa to Australia.

Eleventh Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, on the 9th day of February 2009 at Suva in the Central Division, with intent to defraud obtained from Filikesa Baleiwai the sum of $300.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Twelveth Count
Statement of offence (a)

Obtaining Money by False Pretences:- Contrary to Section 309(a) of the Penal Code, Cap 17.

Particulars of offence (b)

Sisa Rokotakilai, on the 9th day of February 2009 at Suva in the Central Division, with intent to defraud obtained from Vuli Saini the sum of $300.00 in monies by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

The Law – Obtaining Money by False Pretence

The offence of false pretence is complete upon proof 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

...., is guilty of a misdemeanor, and is liable to imprisonment for five years."

Section 308 of the Penal Code defines false pretence:

"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."

The Elements

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 Witnesses Evidence
The Prosecution called 9 witnesses. The accused gave sworn evidence.

Analysis

This is a case part heard by another Magistrate and which has been pending for some time. This Court has perused the Court records and scrutinised the evidence of the prosecution witnesses which were recorded before the previous Judicial Officers.

The Defence had conceded at the close of the prosecution case that the accused had a case to answer. In respect of Counts 1, 4, 7 and 8 the complainants were not called and neither was any evidence tendered to prove these counts and elements of these counts beyond reasonable doubt. Therefore this Court finds the accused not guilty of Counts 1, 4, 7 and 8.

From the evidence given in this case this Court finds that there are no disputes about identification, the dates of the allegations. The crucial question for the Court is whether the accused obtained monies from the various complainants by falsely pretending that he the said Sisa Rokotakilai was an employee of Ofanua Fruit Pickers Agency and was in a position to arrange for Work Visa to Australia.

Each of the complainants in Counts 2, 3, 5,6, 9, 10, 11 and 12 informed the Court that they gave the money and their passports to the accused person for a visa to work in Australia. The accused's version of events is that he collected various amounts of money from the complainants and gave it to one Tuimereke. As he collected number of recruits he gave it to Tuimereke. The accused further told the court that he carried out what instructions were given to him. The police were informed about Tuimereke.

From the evidence given in Court the complainants in Counts 2, 3, 5,6, 9, 10, 11 and 12 gave money, passport and filled out forms and they all had communicated with the accused person. They all know the accused person as who was responsible for the money, forms and the person who will provide them with the work visa.

The evidence tendered by the prosecution and submitted as PE-11, which is a letter from the Australian High Commission, Suva states that the accused person and Akuila Karalo (also referred to as Tuimereke in the Photo tendered) were not involved with the seasonal workers pilot scheme. In fact the High Commission clarified that citizens from Fiji were not included in the Pilot scheme. The High Commission also stated that no visas were lodged with them or being considered by them for any of the complainants.

This Court notes that when no programme existed for the Fiji citizens for seasonal fruit picking then the accused could not have sought the work visa for the complainants under that scheme. The representations by the accused were false. While the accused states that he worked under instructions his duty to others (the complainants) cannot be disregarded. He dealt with the complainants took their money, passport, filled certain forms. The accused cannot now easily now wash his hands of the matter. He was responsible for the monies he took of the complainants as they knew him and no one else. He was answerable to them, not any other person. From the evidence before it this Court finds that the accused made false representations to the complainants, who gave him the monies for work visas for them.

From the evidence tendered in Court this Court finds that the prosecution has proven the elements of the offence beyond reasonable doubt. This Court finds the accused guilty as charged for counts 2, 3, 5, 6, 9, 10, 11 and 12. Court will now hear accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

27th September 2013