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Magistrates Court of Fiji |
IN THE MAGISTRATE'S COURT AT SUVA
CRIMINAL DIVISION
Criminal Case No. 1350 of 2012
Fiji Independent Commission against Corruption
–v-
Rehana Rubeena Nisha Sen
For the Prosecution: Ms. Lomani
For the Accused: Mr. Tuifagalele
JUDGMENT
The Accused was originally charged with Bribery contrary to section 4 (2) of the Prevention of Bribery Promulgation No. 12 of 2007.
Later on the 4th of January 2014 the charge was amended to the offence of Asking for a Bribe contrary to section 135 (1) (a) (i) (b) (ii) of the Crimes Decree.
It is alleged that the Accused Rehana Rubeena Sen between the 30th of September 2012 and the 3rd of October 2012 at Suva, whilst being employed in the public service as an Assistant Superintendent of Police without lawful authority or reasonable excuse asked for a benefit of $3, 000 for herself and did so with the intention of fostering or sustaining a belief that the exercise of her duties as a public official will be influenced.
The Accused has denied the allegation and the matter was ultimately fixed for trial from the 27th of October to 30th October 2014.
Prior to calling the first witness the prosecution filed the following agreed facts: -
The following documents were tendered into evidence by consent: -
The prosecution also called the following witnesses: -
The evidence for the Prosecution
The first witness (PW1) for the prosecution was Chatar Lal, Health Inspector of Lot 6 Chanik Place.
He testified that he is married with 4 children and he has a daughter Praveena Devi. He testified that he was interviewed by FICAC in November 2012. He was questioned in relation to a mobile phone registered to him that was used by his daughter. He could not recall the number of the mobile phone that his daughter was using.
Under cross examination he confirmed that the mobile phone was registered in his name but it was used by his daughter Praveena.
The second witness (PW2) was Praveena Devi.
She testified that she currently works at a restaurant at Vatuwaqa owned by her sister and she has been there for the past 5 years. She resides at Lot 6 Chanik Place, Caubati. She is single and she resides with her father Chatar Pal.
She recalled on the 30th of September 2012 she was at home. She received a call from her boyfriend Atunaisa that he was arrested at Nabua Police station. After receiving the call she then made her way to Nabua Police Station and there she was attended to by one officer called Dharmesh. Officer Dharmesh told her to wait as Atunaisa was going to be interviewed and they would advise her what would happen after they interviewed him.
As PW2 was waiting inside the station she saw a lady coming in. The lady then asked her who she was and what she was doing there she was a police officer. When PW2 explained what had happened to this police woman, she then ordered Dharmesh to interview Atunaisa and then release him as he would not be charged for any offence.
PW2 confirmed that she was at the station from between 9:30 and 9:45 in the morning and that she waited there until 1pm when the lady came in. Her boyfriend Atunaisa was released at 1:30 pm. After issuing instructions to Dharmesh she then told P2 that she should take Atunaisa home. She further told her that they would contact her if they needed anything more from her and so she gave her contact on her mobile phone- 997 1582.
Whilst at the station the woman police officer had asked PW2 where she worked and she told her. The officer told her that her name was Rehana Sen and she was fair, of medium build with wavy hair.
Later she recalled receiving a text message asking "is Atunaisa still drunk or sober?" and it was sent from 8412704. The text was sent from Rehana Sen. She responded that Atunaisa was still drunk and also that his phone was missing. She then told her that she would ask the investigating officer after which she would advise her.
Later Rehana called her on the Monday and told her that she was at Credit Corporation and she asked her where their restaurant was located. At that time their restaurant was at Victoria Parade and Rehana told her that she would come and see her. Prior to calling her Rehana had sent her a text message asking for $3, 000.
When PW2 received that request she informed her sister and her sister advised her to report the matter to FICAC as Rehana was not allowed to do that. PW2 asked Rehana about Atunaisa's phone and Rehana told her not to worry about it as the police officers were afraid of her. She would look into the matter of Atunaisa's phone.
Rehana informed her that she requested the $3, 000 to pay for her son's school fees at USP to allow him to sit for exams. Later she asked for $1, 000 and by that time PW2's sister had advised her to report the matter to FICAC. They then had a conversation which was recorded and in that conversation she told PW2 that nothing would happen to Atunaisa while she is in the Police Force.
Pw2 testified that Rehana Sen initially asked for $3, 000, later she requested $1, 500 and $100. PW2 then reported the matter to FICAC on Wednesday 3rd October when she texted about the money. She later called PW2 and said that she would come after lunch. She heard from Rehana Sen later that night. She texted PW2 and told her that she had used her, Rehana Sen in order to release Atunaisa.
Under cross examination it was put to PW2 that the Accused Rehana Sen was not involved in the daily running of the station and that she had no authority to release Atunaisa. It was further put to PW2 that a senior officer had instructed the Accused not to charge Atunaisa and to release him. She maintained her evidence that her boyfriend was only released on the authority of Rehana Sen and she could not comment on the chain of command at Nabua police station. In cross examination it was put to PW2 that the request was for the Accused's son for his exam fees and if it was not paid then he would not be allowed to sit for his exams.
The third witness (PW3) was Joan Prasad, Accounts Officer at the University of the South Pacific.
Her evidence was that the policy of the University was that students could sit for their examinations even if their fees were in arrears. They however needed to clear these arrears of fees if they wanted the results and if they wished to graduate. She confirmed that she was aware of the records for the Accused's son. She confirmed that at the time in question there was no demand for the fees to be paid. She also confirmed that at the time in question the arrears were less than $3, 000.
The witness explained that the fees were due on the 1st of August 2012 and students were informed by email and also by an invoice that was sent to them. This information was also contained in the USP website as well as the USP calendar. She also explained the various payment options including partial withdrawals from FNPF and the procedure to be adopted for these payments.
Under cross examination she confirmed that the fees had been paid after the due date.
The fourth witness (PW4) was Kuliniasi Saumi, Senior Commission Officer at FICAC. He confirmed that he has been employed by FICAC since 2008 and prior to that he spent 10 years in the police force. He set out his role and duties as a Senior Commission Officer and this included conducting and supervising investigations; preparing search warrants and conducting searches.
For this case he was the interviewing officer and on the 8th of October 2012 he received instructions tointerview RehanaSen. The interview was conducted at FICAC premises and it commenced on the 8th of October and was concluded the next day – 9th October 2012. The interview was conducted under caution and was witnessed by Commission Officer Kuini Vuli.
The Accused appeared very cooperative and she answered all the questions that were put to her. The format of the interview was question and answer and the interview was conducted in English. The interview was recorded using a PC and audio visual recording.
Under cross examination the witness confirmed that he was familiar with the procedures in the police as a former policeman as well as the usual line of reporting and delineation of authority. He confirmed that the Accused at the time in question was not based at the Nabua Police station but she was in the Southern Division headquarters which was in the same building as the Nabua Police Station. He maintained that she would help out at the station when required and at the time in question she was the most senior officer in the station.
He also confirmed under cross examination that Atunaisa Muliaceva was released on the instructions of the ASP Crime Samabula.
He was asked about the difference between a direction given verbally and in writing.
That was the case for the prosecution and at the end of the prosecution case the Accused through counsel made an application for no case to answer. Submissions were filed by both parties.
After considering the submissions filed, the Court found that the Accused has a case to answer and she was advised of her options for defence.
The Accused elected to give evidence under oath.
The evidence for the Accused
Rehana Sen testified that she has been in the Police Force for the past 19 years and she served until 2012. When she left the Force she held the rank of Assistant Superintendent of Police (ASP) based at the Southern Division Command Centre based at the Nabua Police Station. She was dismissed from the force on the 10th of October 2012.
Her ordinary duties entailed collating information from all the police stations within the Division; analyse this information and compile reports and disseminate the same to the National Command Centre.
She confirmed that she was on duty at Nabua Police Station on the 30th of September 2012 and she reported for duty at 6:30 am. Between 10 and 11 she came down from her office to go the pharmacy around the corner. To do this she had to walk across the Nabua Police Station charge room. She was then informed by DC Danesh that there was a person in custody, a report from the Vatuwaqa Community Post.
She testified that DC Danesh had received instructions from ASP Crime in Samabula to interview and release the suspect Atunaisa. When she was informed of this she told DC Danesh to comply and release Atunaisa.She confirmed speaking to Praveena Devi that day and they had exchanged phone numbers.
Later she had received a missed call from Praveena Devi and she called her back. Praveena Devi complained that the police officers at Nabua had stolen her boyfriend's phone and were not returning it. At the time she received the call, she had been on her way to the FPSA (Fiji Public Service Association) office after returning from the FNPF. Praveena Devi had asked her where she was going and why? Rehana Sen explained that she was going to seek a loan to pay her son's school fees. Rehana told her the amount and asked whether she could assist her and pay that amount? Praveena agreed but she stated that she couldn't pay straight away.
She confirmed that she could not secure a loan and she also confirmed that she never actually received any money from Praveena Devi.
Under cross examination she maintained that the only reason she asked Praveena Devi for the money out of desperation as her son's fees were due and she could not obtain any further loans. She confirmed that she had exchanged SMS messages with Praveena Devi over three days.
She also confirmed that the actual fee that was due was $1, 750 and she explained that the balance was for other expenses for her son.
That was the evidence for the Accused.
After the evidence was heard, both parties filed written submissions and later supplementary submissions at the request of the Court. The supplementary submissions were to clarify whether the test for the fault element of this offence is an objective or subjective test.
Submissions were filed accordingly and the matter was adjourned for judgment.
Analysis
The Accused Rehana Sen is charged with Asking for a Bribe contrary to section 135 (1) (a) (i) (b) (ii) of the Crimes Decree.
The relevant section provides as follows: -
"Receiving a bribe
135. — (1) A public official commits an indictable offence (which is triable summarily) if —
(a)the public official without lawful authority or reasonable excuse —
(i) asks for a benefit for himself, herself or another person; or"
For this charge the State bears the burden of establishing the following elements of the offence: -
A plain reading of the above section clearly indicate that the test will both be an objective test with respect to the alleged actions of the Accused and also subjective with respect to the effect of these acts or representations on the complainant.
The parties have filed agreed facts and the following elements are agreed: -
(a) The Accused Rehana Rubeena Sen was a public officer holding the rank of ASP at all material times in this case;
(b) That on the 1st of October 2012, the Accused asked Praveena Devi for a loan of $3, 000
(c) The two had met for the first time at Nabua Police Station on the 30th September 2012 when Praveena Devi's boyfriend Atunaisa Muliaceva was in custody.
(d) Atunaisa Muliaceva was later released from custody on the 30th of September.
Admissions of facts are provided for at section 135 of the Criminal Procedure Decree and the relevant section provides as follows:-
"Admission of facts
135. — (1) An accused person, or his or her lawyer, may in any criminal proceedings admit any fact or any element of an offence, and such an admission will constitute sufficient proof of that fact or element.
(2) Every admission made under this section must be in writing and signed by the person making the admission, or by his or her lawyer, and—
(a) by the prosecutor; and
(b) by the judge or magistrate.
(3) Nothing in sub-section (2) prevents a court from relying upon any admission made by any party during the course of a proceeding or trial."
In this instance the Agreed Facts have been filed in the format set out at section 135 (2).
The only element of the offence that needs to be established is whether the Accused Rehana Rubeena Sen asked for the $3, 000 from
Praveena Devi with the intention of fostering or sustaining a belief that the exercise of her duties as a public official will thereby be influenced.
In analysing the evidence the Court has had the opportunity of seeing all the witnesses at the stand and also the opportunity to assess their demeanour and reaction to cross examination. From the evidence it is clear that the only reason that Praveena Devi and the Accused ever came into contact was through the arrest and detention of Atunaisa Muliaceva, Praveena Devi's boyfriend at Nabua Police Station.
In her evidence Praveena Devi maintained that she felt pressured to accede to the Accused's loan request because she was concerned about her boyfriend. The Accused also represented to her that "as long as she was in the force, nothing would happen to Atunaisa." She stated on the stand that she felt that she had no other option but to try and comply until her sister informed her that this was improper and might be illegal.
For her part the Accused denied any ulterior motive and stated that at the time she was desperate as her loan applications were refused and her son's fees were due. She also maintained that she had no authority to release Atunaisa and in fact she had nothing to do with his release which had been ordered by another superior officer.
In assessing the evidence before the Court the Court makes the following findings: -
(a) Praveena Devi as a civilian and with no knowledge of the lines of reporting and demarcation of authority, reasonably believed that her boyfriend Atunaisa Muliaceva was released at the direction of Rehana Sen.
(b) Rehana Sen at the relevant time in question - 30th September 2012 was the most senior ranking officer present at the Nabua Police Station.
(c) That as a result of that factually mistaken belief – Praveena Devi was prepared to accede to the Accused's request for a loan in exchange for the continued freedom of her boyfriend.
(d) The Accused Rehana Sen either was willful or was reckless in not considering her position of authority and the belief sustained in Praveen Devi of her exercise of that authority with respect to her boyfriend and any possible arrest or detention in the future.
The Court is satisfied that the prosecution has established the final element of the charge the intention of fostering or sustaining a belief that the exercise of her duties as a public official will thereby be influenced.
Rehana Sen you are hereby convicted of the charge against you – the Court shall now hear from you in mitigation.
--------------------
U. Ratuvili
Chief Magistrate
25th May 2015
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