Jione v State [2008] FJSC 55; CAV0003. 2007 (27 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV 0003 OF 2007
(Fiji Court of Criminal Appeal AAU 0094 of 2005S)

BETWEEN:

FORAETE EPINISI JIONE
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Robert French, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Wednesday, 20^th February 2008, Suva

Counsel: Petitioner in person
A Prasad for the Respondent

Date of Judgment: Wednesday, 27^th February 2008, Suva

JUDGMENT OF THE COURT

1. The petitioner was convicted in the High Court at Suva on five counts of fraudulent falsification of accounts, and one count of larceny as a servant. He was sentenced on each count to concurrent terms of imprisonment of three years. He was granted leave by the Court of Appeal to appeal against both conviction and sentence, but his appeal was dismissed.

Factual background

2. The offences of which the petitioner was convicted concerned allegations that, while an employee of the Westpac Banking Corporation, he made four false credit entries in accounts which had been opened with the Bank, and destroyed a deposit slip for an amount which he had received on behalf of the Bank. The offences were said to have been committed at the Nabua branch of the Bank over two days, on 12 and 13 March 1997. Together they involved a total sum of $172,318.08.

3. In addition, the petitioner was convicted of a sixth count, namely larceny as a servant. That count involved an amount of $179,153.27. The prosecution case was that the purpose of the falsification or destruction of the banking records the subject of the five counts of falsification of accounts was to conceal the theft of the last mentioned sum.

4. After concerns arose in relation to these transactions, the petitioner was interviewed by Gregory Lemme, the Bank's investigations manager, in August 1997. There were extensive interviews conducted over eight days.

5. The records of these interviews were tendered at the trial, and their admission into evidence was the subject of one ground of appeal. It should be noted that the petitioner was interviewed by the police some six years later, in 2003, but the product of that interview did not find its way into evidence at the trial.

6. The Court of Appeal observed that the Bank interviews amounted to a complete confession by the petitioner of all of the counts subsequently alleged against him. Moreover, they were followed by three letters, purportedly written by the petitioner, in which he admitted to the misappropriation of the funds, and offered to make restitution. One of these letters was physically delivered by the petitioner to Peter Capell, a bank officer, so Mr Capell testified, along with a bank cheque for $500.

7. The petitioner was not legally represented at his trial. Nonetheless, he defended himself with some skill, and objected to the admissibility of the Bank interviews. The trial judge conducted a voir dire. She concluded that the copies which were tendered in place of the lost originals were accurate copies. She further concluded that the interviews had been conducted fairly, and that the confessions made were all obtained voluntarily.

8. The petitioner denied having made any of the fraudulent entries that formed the subject of the counts, or having destroyed the deposit slip. He denied having stolen any of the Bank's money. He told the assessors that the various admissions that he was said to have made in the course of the Bank interviews were of no weight because they had been made as a result of coercion and verbal abuse. He said that the signatures on the interview adoption records were not his, and that the contents of those interviews were either untrue, or had been fabricated. He similarly suggested that the post interview letters were not written by him, and that his signature on those letters had been forged.

9. The Court of Appeal observed that the prosecution of this case had been anything but expeditious. As will be seen, that is if anything an understatement. By no later than August 1997, the Bank had in its possession a series of full and complete signed confessions, containing remarkably detailed account of what the petitioner had done. It appears that sometime between then, and early 1998, the police were contacted and became involved. A series of witness statements, taken from various Bank customers, and going back as far as May 1998, were tendered as exhibits during the trial. Plainly the police were investigating this matter for some considerable time before those statements were obtained.

10. There is nothing in the record which explains why it was not until January 2003 that the petitioner was formally charged with these offences. Thereafter, the matter took its normal course through the Magistrates Court, culminating, with the making of an order on 14 November 2003, with the petitioner's consent, for trial in the High Court.

11. The matter was first mentioned in the High Court on 5 December 2003.A trial date of 19 April 2004 was fixed. That date was later adjourned to 12 July 2004, and then again adjourned to 4 October 2004. The petitioner claimed that this last adjournment had been ordered without his knowledge or consent. He blamed his counsel for this, and elected to terminate his counsel's retainer.

12. The matter was next mentioned on 27 July 2004. On that day the petitioner indicated that he had approached a particular counsel with a view to being represented by him. 1t was mentioned again on 6 September 2004. The petitioner informed the Court that it was still his intention to be represented at his trial.

13. On 29 October 2004 the trial was once again adjourned, this time by consent, to 5 July 2005. The petitioner, who had still not, by that stage, retained new counsel, was advised in clear terms to obtain legal advice.

14. On 21 January 2005 there was a further mention of the matter. On this occasion, the petitioner advised that he would be representing himself. He informed the Court that he had no objection to the Bank interviews, and no criticisms of the later police interviews.

15. On 21 February 2005 the prosecution advised that the handwritten copies of the police interviews could not now he located. The Court was also told that the interviewing officers had each migrated. The trial date of 5 July 2005 was vacated, and a new date of 19 July 2005 fixed.

16. That trial date was subsequently vacated. On 15 August 2005 the matter was transferred to Justice Shameem, Several days later Justice Shameem enquired of the parties whether the matter could be listed for trial, at short notice, the following Monday. The prosecution indicated that they would need more time, as the case officer was on leave, and a number of the main witnesses were overseas. The petitioner, however, made it clear that he wanted the matter set down for trial. He said that the lengthy delays had caused both him and his family stress. He asked for a date before October 2005, as he wished to migrate. Justice Shameem fixed a hearing date for 24 July 2006, but listed the matter for mention on 30 September 2005 to see if it could be brought on sooner.

17. Ultimately, and with the consent of both parties Justice Shameem fixed the trial for 11 October 2005. At a pre-trial hearing the petitioner who was still unrepresented, indicated for the first time that he did not consent to the tender of the police interviews. Moreover, he said he disputed the evidence of Mr Lemme who had conducted the Bank interviews. He nominated a series of prosecution witnesses whom he wished to cross-examine, and identified those others whose statements could be read without objection.

18. On 18 October 2005 the trial finally commenced before Justice Shameem and the assessors. It concluded on 31 October 2005.

Court of Appeal

19. The petitioner filed a large number of grounds of appeal. The Court of Appeal observed that some were repetitious, and indicated that it would deal with them in a manner which reflected their substance.

20. Their Lordships rejected the petitioner's claim that he had not been given a fair trial. Broadly speaking, the petitioner argued that he had been denied legal representation contrary to s28 (1) (d) of the Constitution. However, there was nothing to indicate that he could not afford the services of a lawyer. Rather, he had made a conscious decision to conduct his defence himself. He had done so in the face of strong advice from more than one member of the High Court, given during the course of various mentions, that he should obtain a lawyer.

21. Their Lordships also rejected the petitioner's challenge to his conviction based on delay. They described the delays in the trial as unfortunate, but observed that not all were due to the prosecution. They added at [18]:

'In may be accepted that delay is most undesirable because of the possibility of the loss of documents and of witnesses being unavailable. Additionally, it can have an effect on memory and cause undue stress to an accused, over whose head serious criminal charges hang. The appellant suggested that the present was a case where the delay was of such an order that it denied him a fair trial. The several respects which were identified are addressed later in these reasons. Neither individually, nor in combination, did they, in our view, have that result."

22. The petitioner submitted that the trial judge had interjected, interrupted and disrupted the proceedings when he tried to cross-examine prosecution witnesses and complained that she displayed bias. He did not identify any passages in which this alleged conduct occurred. The Court of Appeal read the transcript and concluded that Justice Shameem had conducted the trial with impeccable fairness.

23. The next ground upon which the petitioner relied related to the admission of the Bank interviews. Put simply, he claimed that he had been subjected to threats and humiliation to the point where any admissions made were involuntary. He asserted that he had given a number of untrue answers during the interviews so that they were all unreliable.

24. Justice Shameem heard evidence from Mr Lemme who denied that the petitioner had been mistreated in any way. She accepted him as a truthful witness. She found that the petitioner had been treated fairly, warned that he was not obliged to answer any questions, and given ample opportunity for breaks. The petitioner complained that the voir dire had been conducted hastily, and treated as a mere formality by the trial judge. The Court of Appeal concluded that there was no basis whatever for that submission. As their Lordships observed, the failure of the petitioner's challenge to the admissibility of the Bank interviews was to a large extent determinative of the appeal.

25. Nonetheless, their Lordships dealt with other grounds, including an alleged error on the part of the trial judge in receiving photocopies of the Bank interviews, and of other bank documents. They explained at [32] - [36] why there was no substance to that complaint.

26. They also dealt with a complaint regarding the reception of the evidence of Mr Capell, who was called by the prosecution only after it emerged that the petitioner denied having been responsible for the three letters addressed to the Bank in which he acknowledged his guilt. Mr Capell's evidence was significant in that regard because he said that the last of these letters had been given to him by the petitioner, together with a cheque for $500. That linked the petitioner to the letter, and undercut his defence that it had been forged. The petitioner complained of late disclosure of Mr Capell's witness statement. However, as the Court of Appeal observed, that point had no merit given the petitioner's sudden, and unforeseen, allegation that the letters were all forged, first raised during the trial.

27. There was also an attempt by the petitioner to rely upon fresh evidence, a Travel History document, before the Court of Appeal. This document was said to cast doubt upon Mr Capell's evidence that he was in Suva in December 1997, at the time he was given the third letter by the petitioner, as he claimed. The Court of Appeal concluded that the document was insufficiently cogent to warrant being received for that purpose.

28. There are also further complaints about disclosure sought during the trial, and bringing the trial date forward, without the petitioner's consent.

29. More importantly, the petitioner submitted that he had suffered significant prejudice by reason of the eight year delay that had occurred between the time the alleged offences were committed, and the date he was finally brought to trial. The Court of Appeal readily accepted that delay can affect the fairness of a trial. Witnesses may die or their memories may fade. Important documents may be lost. In an appropriate case, where real prejudice to an accused can be demonstrated, a court may consider the remedy of a permanent stay.

30. The petitioner claimed prejudice through the loss of the original Bank interviews and other original documents. The Court of Appeal rejected that contention. Even the petitioner accepted that where such original documents had been lost, but copies were available, those copies were accurate.

31. The petitioner next claimed prejudice through impairment of memory of certain witnesses. The Court of Appeal examined that claim with some care, and concluded that any lapses of memory by the witnesses in question related to matters that were not material.

32. More specifically, the petitioner argued that he was prejudiced by the absence of the "master log", a document from which relevant computer records were derived, and what were described as the Von account records, records relating to a particular account about which the petitioner had been questioned during his Bank interviews. In addition, the petitioner claimed that he had been prejudiced by some uncertainty as to whether a computer generated statement relating to what was known as the Front Office Cash Account (FOCA), bearing an effective date of 12 March 1997, and disclosing an account balance of $404,831.08, which was tendered by the prosecution, was the final statement for that day.

33. The Court of Appeal dealt with these submissions by noting that the petitioner had not identified how any of the allegedly missing documents could have assisted his case. As the Court observed, the Bank interviews, together with additional evidence from Bank witnesses and supporting documents, made out the prosecution case. The Court would not act on speculation that, in some fashion, something might have been drummed up, from the absent documents, to throw doubt on what was otherwise a very strong prosecution case.

34. The Court of Appeal then dealt with the FOCA statement. Their Lordships were conscious of the fact that Mr Lemme said at the trial that this account was used as an internal clearing account and was expected to have a nil balance at the end of each day. The petitioner sought to argue that if it had a positive balance, as the computer statement which was tendered suggested, that meant the Bank must have misappropriated some of its customers' money. It followed, so he submitted, that it was possible that whatever he may have done, he himself did not steal any money.

35. The Court of Appeal rejected that submission. Their Lordships said:

"[60]... We do not see why that necessarily follows. It depends entirely on whether fictitious or false entries had been made, the existence of which the appellant acknowledges in his interviews.

[61] In any event, the appellant had the benefit of any uncertainty in this respect since it was a matter that was explored in Mr Lemme's evidence in chief and in cross-examination. The explanation which he gave was that while the FOCA account should result in a nil balance at the end of the day, his investigation showed that the appellant was capable of maintaining the internal accounts without a zero balance, and did so to cancel his misappropriation.

[62] This ground is not made good".

36. There were numerous other points taken before the Court of Appeal. However, they were not pressed by the petitioner in his written submissions to this Court, and accordingly we will say nothing further about them.

The petition to this Court

37. Before this Court the petitioner raised essentially three grounds of appeal. He contended:

(a) that he had been prejudiced by a combination of late disclosures, the delay in bringing him to trial, and the failure to ensure that he was legally represented;

(b) the evidence of Mr Capell should not have been received. However, the Court of Appeal should have regarded the Travel History document as demonstrating conclusively that Mr Capell had not been in Suva at the critical date; and

(c) that the existence of surplus funds in the FOCA account provided clear proof that there was money rightfully belonging to various customers that had been misappropriated by the Bank.

38. In our view, none of these grounds warrants the grant of special leave. The petitioner's claim to have been prejudiced by late disclosure of documents does not withstand scrutiny. The record shows that in the days leading up to the commencement of the trial the prosecution filed a series of notices of additional evidence. These were dated 5 October 2005, 6 October 2005, 14 October 2005, 17 October 2005, 18 October 2005 and 25 October 2005.

39. The first of these notices concerned the evidence of Mr Rakesh Lal, a Bank employee who now occupied the position of Financial Crime Analyst at the Suva branch. He said he was fully aware of the petitioner's case. He said that he had examined the Bank case file, and came across two of the letters handwritten by the petitioner to the Bank dated 3 November 1997 and 24 December 1997. He summarised the content of the letters, and indicated that he had forwarded them to the Office of the Director of Public Prosecutions. The handwritten letters themselves were appended to the notice.

40. The notice dated 6 October 2005 appended an additional statement by Mr Lal together with the Banks' termination letter addressed to the petitioner, and his handwritten letter dated 29 August 1997 admitting the truth of all the allegations made against him.

41. The notice dated 14 October 2005 appended a statement by a police officer who formally identified the Bank interviews that he had handed to the Office of the Director of Public Prosecutions, and explained that the originals had been misplaced and could no longer be found.

42. The notice dated 17 October 2005 appended an additional nine page statement taken by Mr Lemme from the petitioner on 21 August 1997.

43. The notice dated 18 October 2005 appended various performance appraisal documents relating to the petitioner going back to 1993.

44. Finally, the notice dated 25 October 2005 contained a five line statement from Mr Capell in which he stated that sometime in late December 1997 he met the petitioner at the Office of the Chief Manager of Westpac. The petitioner personally handed over the handwritten letter and bank cheque to which reference has already been made.

45. It can readily be seen that none of these disclosures, late though they were, could have caused any real prejudice to the petitioner merely by having been provided less than fourteen days before the commencement of the trial, as would normally be required. A number of them were innocuous. Others would not have taken the petitioner by surprise. The statement of Mr Capell was provided to rebut a defence first raised during the course of the trial. There is nothing in this point.

46. That deals also with the evidence of Mr Capell. Plainly, his evidence became highly relevant once the petitioner flagged his contention that the handwritten letters bearing his signature had been forged. The petitioner made no application to adduce further evidence before the Court of Appeal but simply handed up the Travel History document. The prosecution had no opportunity to test its authenticity, or carry out investigations into its accuracy and reliability. This point too has no merit.

47. Finally, the petitioner's complaint regarding the existence of so-called surplus funds to the FOCA account was dealt with correctly by the Court of Appeal. It is impossible to draw from the computer statement dated 12 March 1997, and the fact that the account was shown to be in surplus, a conclusion that the Bank itself had misappropriated funds from its customers. The reliability of that computer statement would depend entirely upon whether fictitious or false entries had been made, the very existence of which the petitioner acknowledged in the Bank interviews.

48. The petitioner has not meet any of the requirements for the grant of special leave under s7 (2) of the Supreme Court Act. The application for special leave must be refused, and the petition dismissed.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Robert French
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
The Petitioner in person
Office of the Director of Public Prosecutions, Suva for the Respondent