Fiji Independent Commission Against Corruption v Senibici [2015] FJMC 61; Criminal Case 1752.2013 (3 June 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : 1752/2013

FICAC

V

JONE RATUNIDAWASAMU TOGA SENIBICI

Counsel: Mr. S.Shah for the FICAC
Mr.Ravuniwa for the Accused
Date of Judgment: 03rd June 2015

JUDGMENT

1. The accused has been charged with following offences in this Court.
   

COUNT 1

ACCEPTING AN ADVANTAGE: Contrary to Section 3 of the Prevention of Bribery Promulgation No. 12 of 2007.

Particulars of Offence

JONE RATUNIDAWASAMU TOGA SENIBICI on the 28th day of June 2013 at Suva in the Central Division being a prescribed officer namely, a Military Officer of RFMF on secondment to the Department of Immigration, without the general or special permission of the President, accepted an advantage namely, a Babu silver and gold plated wrist watch from on Yong Pan.

COUNT 2

ACCEPTING AN ADVANTAGE: Contrary to Section 3 of the Prevention of Bribery Promulgation No. 12 of 2007.

Particulars of Offence

JONE RATUNIDAWASAMU TOGA SENIBICI on the 28th day of June 2013 at Suva in the Central Division being a prescribed officer namely, a Military Officer of RFMF on secondment to the Department of Immigration, without the general or special permission of the President, accepted an advantage namely, $100 in cash from one Yong Pan.

2. The accused pleaded not guilty of this charge wherefore this proceeded for hearing on 27th January and 27th April 2015. For the Prosecution Case 03 Witnesses were called and after being given the rights of the accused he opted to remain silent.

3. At the conclusion of the hearing both parties elected to file closing submissions but only the prosecution filed their submission within the time and therefore I have considered only that for my judgment.

4. I would first summarize the evidence submitted at the hearing. PW1 was Mr. Yong Pan a Chinese national who went to the Immigration Department to inquire about the Immigration and met the accused. The accused said that he was busy and requested to meet him in lunch time regarding the matter. PW1 invited the accused for a lunch and on his suggestion went to MacDonald and got some food .Then they went to Seawall and sat at a table. The witness asked the accused about the documents and was called upon to write a letter to the Immigration Department. On his request then the accused wrote a letter and feeling grateful for the help PW1 took $100.00 and put under the meal box and also gave a watch to the accused to give to his children. PW1 identified the watch and this was indicated as Prosecution Exhibit 01. When they checked out of the place he thought the accused took the money.

5. In cross- examination the witness said when they left he did not see the money on the table and it was not windy at that time. He was appreciative for the assistance but though the accused would not take the money if it was given directly. The accused also did not refuse when given the watch. In Chinese culture other party may refuse money but would accept only the gifts. On his way back he was detained by two people from FICAC and taken to an office where he admitted giving the money to the accused. The money was placed under the meal box. In re- examination the witness said apart from them there was no anyone else present in that table.

6. By consent of the caution statement and the charge statement was tendered and marked as Prosecution Exhibit 02 and exhibit 03 respectively.

7. PW2 was LowameTuragaluvu, an officer from RFMF and said that a secondment is an agreement between RFMF and another ministry where an officer is attached and the accused was seconded to the Immigration Department and was paid by RFMF during that period. Re-engagement for the service and the payment slip were marked as exhibits 03 and 04 respectively.

8. PW3 was Kuliniasi Saumi, an investigating officer in FICAC and on 28th June 2013 whilst on lunch at Nasese Park he noticed a Chinese person and a Fijian person coming and sitting in a table. The Fijian person was holding some papers and was wearing a uniform of Immigration Department which raised suspicious of the witness. He consulted with his superior and on his instruction continued observation. He followed them and searched them and seized items from the Fijian person who he identified as the accused. The accused was searched by another officer and the witness saw a watch and $100.00 recovered from the accused. The witness searched the Chinese person and found an application form and a letter written to the Immigration. He also prepared a search list. The witness also tendered following as exhibits.

a. A letter is written to the Immigration – Exhibit 05

b. An Application Form – Exhibit 06

c. Search List – Exhibit 07

d. $1oo note – Exhibit 08

9. In cross- examination the witness admitted there was some other money also with the accused and in a statement the Chinese person admitted giving money to the accused. Nonetheless, in his interview the accused denied this and said that the money belonged to him.

10. The prosecution closed their case after that and the accused was given his rights pursuant to Section 179 of the Criminal Procedure Decree and he chose to remain silent.

11. In his closing submission, learned counsel the FICAC submitted that the evidence they have proved beyond reasonable doubt that the Accused committed these offences and therefore the Court needs to convict him for this charge.

12. In Woolmington v DPP [1935] AC 462 it was held that "Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482)

13. In State v Darshani [2006] FJHC 24; HAC0007S.2005 (26 January 2006) in the summing up his Lordship Justice Gates ( as he then was ) defined burden placed on the prosecution in the following manner and this is relevant for this case also .
    

"The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an accused which is enshrined in the Constitution. The State brings the charge against the accused. Therefore it is for the State to prove the charge against the accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. In summary, the Accused does not have to prove anything.

The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of the charge you must be satisfied so that you are sure of her guilt beyond reasonable doubt. The test is not doubt, or slightest doubt. The test is reasonable doubt. If you consider her innocent of the charge you must give your opinion that she is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty."

14. The accused has been charged in this case with two counts of Accepting an Advantage contrary to Section 3 of the Prevention of Bribery Promulgation No.12 of 2007. Section 03 of the Promulgation provides:

"Any prescribed officer who, without the general or special permission of the President, solicits or accepts any advantage shall be guilty of an offence."

15. In view of the above section the elements in this offence are:

a. The accused

b. Being a prescribed officer

c. Without the general or special permission of the President

d. Accept any advantage

15. In this case, the FICAC alleges that the accused whilst being a prescribed officer without the general or special permission from the President accepted an advantage of $100.00 and Babu Silver Watch from PW1.

16. Prescribed Officer is identified in the section 02 of the Promulgation as any person holding an office of emolument, whether permanent or temporary, under the Government. PW2 in his evidence said that the accused was serving in RFMF and was in secondment to the Immigration Department. During the period he was paid by RFMF and the payment slip was marked as Exhibit 04. The accused also in his caution statement has admitted that he was attached to the Immigration Department.

17. Advantage as defined by the promulgation includes any gift, loan, fee, reward or commission consisting of money or any valuable security or other property or interest in property of any description. Therefore clearly money and a watch are reflected in the present definition. For the 1st count the accused has admitted in his cautious statement that he was offered a watch and he accepted that. FICAC investigators seized this watch and this was marked as Prosecution Exhibit 01.

18. However, the accused is denying accepting $100.00 in this case. This is evident from the line of cross- examination of the prosecution witnesses as well as his from his caution statement. PW2 in his evidence said he out of gratification he offered $100.00 to the accused. Nevertheless, as he was concerned that the accused would reject this amount PW1 put in under the lunch box. When they left the place the money was not at the table. In cross- examination the witness said that there was no wind at that time and in re- examination admitted there was no one else at the table at that time. Immediately after this incident when the FICAC officers searched the accused they recovered a $100.00 note in the custody of the accused and this was sized and also marked as an exhibit. Therefore I believe that there is sufficient circumstantial evidence to prove this fact. As the accused did give evidence, I don't have his explanation but in his caution statement when he was first asked about that he denied accepting the money. He said the money recovered from his possession was his pay which he withdrew on Tuesday from Colonial ATM at MH opposite the Suva Market. This included the $100.00 which was the focus in the 2nd count. Nonetheless, when he was faced with by the interviewing officer that a $100.00 could not be obtained from an ATM he changed the position and informed that a person gave this $100.00 in the counter for smaller denomination. Contradictions are made by the accused in his caution statement make his story not credible in this court.

19. The prosecution did not call any evidence during the trial to establish that the accused has no permission from the President to accept these things. Nevertheless, in their submission they submitted that the accused does not possess the power. Also they submitted that the burden is on the defence to prove this element. I accept the argument that this is a negative averment and the prosecution has no burden to prove this unlike other elements in an offence as per section 124 of the Criminal Procedure Decree.

20. Section 124, of the Criminal Procedure decree states:

"(1) Any exception, exemption, proviso, excuse or qualification —

(a) whether it does or does not appear in the same section as the description of the offence in the Act or Decree or Promulgation creating the offence; and

(b) whether or not it is specified or negatived in the charge or complaint —

is to be proved by the accused person on a balance of probabilities.

(2) No proof in relation to any relevant exception, exemption, proviso, excuse or qualification applying under any Act or Decree or Promulgation to any offence shall be required from the prosecution

21. In Ramen Prasad V State, the Fiji Court of Appeal held that:

"In the true construction of the enactment is that it prohibits the doing of act subject to provisos, exceptions and the like, the prosecution can rely on the exception and are not required to prove a prima facie case of lack of excuse, qualification or the like. In such case the persuasive and not merely tile evidential burden of proof is placed on the defendant."

"This follows from the fact that the evidential burden of disproving a negative averment rests as a matter of law on the accused person and not the prosecution."

22. The accused also never took the position during the investigation or in the trial that the President has given him this permission. Therefore I have come to the conclusion that even though the prosecution has not tendered any evidence regarding this element I can accept that at that time the accused has no permission from the President to accept any benefit.

23. Based on the above mentioned reasons, I find that the prosecution has proved beyond reasonable doubt that the Accused committed these offences.

24. Therefore I find the accused guilty of this charge and convict him accordingly.

25. 28 days to appeal

H.S.P.Somaratne
Resident Magistrate