Fiji Independent Commission Against Corruption v Sukanaivalu [2019] FJMC 123; Private Prosecution 72 of 2013 (15 April 2019)

IN THE MAGISTRATE’S COURT AT LAUTOKA, FIJI

PRIVATE PROSECUTION NO. 72/13

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION ( FICAC )

V.

SILIASI SUKANAIVALU

Counsel : Ms Loganilakeba for Prosecution

Ms Kahan S for Accused

JUDGEMENT

01. In this case the accused was charged with one count of Soliciting An Advantage: Contrary to section 3 of the Prevention of Bribery Promulgation No 12 of 2007, one count of Obtaining A Financial Advantage: Contrary to Section 326 of Crimes Act of 2009 and one count of False Statement on Oath: Contrary to Section 177(a) of Crimes Act of 2009.

02. You pled not guilty for the counts against you and matter proceeded for hearing accordingly.

03. At the hearing prosecution called six witnesses marking documents from PEx1 up to PEx9. Having explained the rights of the accused he exercised his right to remain silent

04. Section 3 of Prevention of Bribery Promulgation is as follows;

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

05. The prosecution shall prove the following elements beyond reasonable doubt

1. A prescribed officer
2. Without the general permission of the President
3. Solicits any advantage
   

06. Section 326 of Crimes Act is as follows;

326.— (1) A person commits a summary offence if he or she—

(a) engages in conduct; and

(b) as a result at conduct, obt, obtains a financial advantage for himself or herself from another person; and

(c) knows or bes that he or sher she is not eligible to receive that fina advantage.

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Penalty — Imprisonment for 10 years.

07. The elements to be proved for the count is that;

1. the accused
2. engaged in a conduct,
3. as a result of that conduct, obtained a financial advantage for himself from another person,
4. knows or believes that he is not eligible to receive that financial advantage.
   

08. Section 177(a) of Crimes Act stipulates;

177. A person commits a summary offence if he or she —

(a) being required or authdrised by law to make any statement on oath for any purpose and being lawfully sworn (otherwise than in a judicial proceeding) wilfully makes a statement which is material for that purpose andh he knows to be false or d or does not believe to be true;

09. Prosecution need to prove the following elements

1. the accused
2. knowingly and wilfully
3. makes
4. a statement
5. false in material particular
6. and the statement is made
7. in a document
   

10. There was no challenge with regard to the accused person being a FICAC officer during the alleged period. Though prosecution adduced sufficient evidence from the PW1 and other investigating officers that accused was working for FICAC. This fact was also and admitted fact which was signed and submitted to this court under section 135 of the Criminal Procedure Act.
    
11. Second element for the first count is that accused had not written permission from the president; which now has delegated to his appointing authority. As per section 124 of Criminal Procedure act Prosecution need not to prove this element. The burden of proof shifts to the accused to show that he had such permission to solicit any advantage. However nowhere in the evidence had it proved or at least adduced any evidence to the same effect. Thus, I have to conclude that accused had no written permission from his appointing authority.
    
12. PW1 in his evidence said that accused requested $500 for his wife’s treatments. He further said that he withdrew money form the BSP bank and gave it to the accused. He elaborated that he had to withdraw 3 times as the maximum limit that time was $200. There were suggestions form the accused that no one else saw these transactions and handing over the money to the accused. However, PW3 who was the receptionist of the FICAC officer confirmed according to her movement registry the complainant came to the office on this particular day and went out with the accused Suli. Though there are no eye witnesses the circumstances of the incident is strong enough to draw an inference without any doubt.
    
13. Court also observed the demeanour of the witness and found that he was so steady in giving his evidence and still have no malice towards the accused. It is evident that they are still in good terms yet complainant is not happy of what happened. Therefore, I consider his evidence as credible and reliable evidence.
    
14. For the second count as well the identification of the accused is not disputed as illustrated for the previous count.
    
15. It is evident that Suliasi; the accused has engaged in a conduct in his official capacity in assisting the complainant to recover his dues form the Aseri Cama. During his evidence the complainant said that he had an agreement with Aseri Cama however could not use the land for long due to some intimidations. He added that thereafter he went to FICAC but accused informed him that they do not take such reports. However, for the second time as well the complainant has gone to the accused’s office and accused has assisted him with the small claims form and has informed the complainant that that he can call the Aseri Cama to recover the money.
    

Page 03 of Court Transcript

16. PW2 as well informed that he went to FICAC to pay the due amount and actually paid $400 to Suliasi; the accused. He confirmed in his evidence that he had an agreement with the complainant; Muneshwar, over a native land that did not work out as agreed. Prosecution marked a document as PEx4 in which the accused has signed as a witness.
    
17. The above evidence is sufficient to conclude that accused has engaged in a conduct for resolving between the Muneshwar and Aseri Cama, in his official capacity.
    
18. Further on complainant’s evidence he said that he came to know that Aseri Cama had paid $400 to Suli; the accused, and he said that he informed the same when inquired by the Aporosa: PW4; Complaint Officer of FICAC.

Page 09 of Court Transcript

19. Accused then has advised the complainant to tell that he received the money though same money has not been handed over to complainant which Aseri paid to the accused.

Page 09 of Court Transcript

20. Witness in his evidence confirmed that in fact he did not received the money amounts to $400. On the other hand, PW2; Aseri Cama also confirmed in his evidence that he paid $400 to the accused; Suliasi at FICAC office being small claim instalment. He further stated that he was given one receipt for his payment.
    

Page 16 of Court Transcript

Page 17 of Court Transcript

21. Even in the caution interview which has been decided admissible now in evidence, shows that accused has received the $400 from Aseri Cama. (Vide Question No 78 of the caution interview). It is further admitted in his caution interview that the received amount has utilized for his travelling expenses. (Vide Questions No 88 to No 92 of the Caution interview)
    
22. It is therefore to be concluded that as a result of the conduct accused obtained a financial advantage for him from another person.
    
23. Being a FICAC officer at that time accused must know that he has to be extra careful than an ordinary government officer. Especially the matters that involves money. He has admitted the same ground in his caution interview as well. (Vide Question 111 and 112 of caution interview)
    
24. His conduct of informing the complainant Muneshwar to tell Mr Aporosa that he received money already indicate that accused was so aware of his wrong doing by accepting money and keeping it to him. Thus, his knowledge and belief are proved beyond reasonable doubt.
    
25. Accused in his cross examination has not taken any substantive position to discredit the evidence adduced by the prosecution. Therefore, I conclude that prosecution has proved the elements for the second count beyond reasonable doubt.
    
26. For the third count as well the identification is not a disputed fact. Nevertheless, prosecution has adduced sufficient evidence to his identification.
    
27. PW5; Daniel Roqara gave evidence regarding the process and the procedure of the small claims tribunal in brief. He confirmed that only the court officers are allowed to change anything in the summons; particularly the next date and same should be corrected and place the court seal. However, the PEx5 does not contain such alteration for the next date.
    
28. PW1 in his evidence said that he informed the accused about the next date while he met the accused in FICAC office. It is also said in his evidence that they served the notices soon after the filing of the claim and that it was served at Lawaki Koro.
    

Page 05 of Court Transcript

29. Accused in his caution interview has admitted that the affidavit he made is not correct of the facts. (Vide Question Nos 115, 116 and 117 of caution interview). He has further admitted that it was incorrect and the place it was served in fact was Lawaki Village. (Vide Question Nos 150 to 155 of caution interview)
    
30. The prosecution marked the affidavit made by the accused as PEx5 in comparison with the PEx1 to PEx3 and PEx6 to PEx8. PW6 Kelemedi Naidiri gave evidence about obtaining these documents from the SCT and identifying the same in court.
    
31. The adduced evidence evoke that accused knowingly and wilfully made an affidavit with false facts or he had reasonable grounds to believe it was incorrect. Therefore, the elements of the 3^rd count is proved beyond reasonable doubt.
    
32. Accused by cross examination has not discredited the evidence to an extent to form a reasonable doubt.
    
33. At the conclusion of the prosecution evidence accused was informed of his rights as court found there is a case to answer. However, the counsel for the accused informed the court that accused wishes not to call for any evidence and exercise his right to remain silent.
    
34. In the light of the said analysis I conclude that prosecution has proved the three counts beyond reasonable doubt and accused has failed to throw any doubt to the prosecution case. Accordingly, I find accused guilty for the three counts and convict him for the same.
    
35. 28 days to appeal
    

Bandula Gunaratne

Resident Magistrate
At Lautoka
15^th April 2019