Nand v Reginam [1980] FijiLawRp 7; [1980] 26 FLR 137 (31 March 1980)

[1980] 26 FLR 137

IN THE FIJI COURT OF APPEAL

SHARDHA NAND

AND

FLOUR MILLS OF FIJI LIMITED

v

REGINAM

[COURT OF APPEAL, Gould V.P., Henry J.A., Spring J.A. - 3-12, 31 March 1980]

Criminal Jurisdiction

Assessors not including person of nationality of accused - trial not thereby nullity - criticism of complement of assessors to be made before trial - the Chief Justice's disposal of preliminary matters before handing over to another judge unexceptionable - court has no power to require immunity of any witness or to interfere in that regard with discretion of Director of Public Prosecutions - necessity for careful direction as to acceptance of evidence of accomplice without corroboration - necessity to tell assessors what evidence or matters if accepted by assessors are capable of being corroboration, including reference to lies.

S. M. Koya for first Appellant
M. S. Sahu Khan for second Appellant
R. Lindsay, with him W. D. D. Morgan for the Respondent

On 23 May 1973 after a trial lasting 30 days the appellants were convicted of various offences. The decision of the Assessors was unanimous.

Shardha Nand (first appellant) was convicted of concurring in falsification of entries in the Balance Sheet for the year ending 1976 of Flour Mills of Fiji Limited (2nd appellant) (count 1); concurring in circulating the said Balance Sheet containing false particulars (count 2) and conspiring to defraud the Minister of Commerce Industry and Co-operatives (the Ministry) by fraudulently reducing the operating profit of the company for the year ended 1976 (count 3).

First appellant joined the company as its Managing Director on 8th October 1976. Other persons mentioned in evidence included Pran Gopal Chanda who commenced as Secretary in July 1974 and David Michael Gutteridge who joined as production manager in June 1975.

The prosecution case against first appellant (in respect of count 1) was that with intent to defraud he concurred with the chairman of the company Pratap Singh Vissanji in making a false entry in the company's balance sheet for the year ending 31st December 1976, by undervaluing the stocks of the company.

Count 2 charged first appellant with concurring with Vissanji in circulating a balance sheet for year ending 31st December 1976 which he knew to be false in that wheat stocks as at 31st December 1976 had been understated by 576 metric tons (valued at approximately $102,448) thereby reducing the profit of the company for the year 31st December 1976 with intent to deceive the shareholders.

Count 3 alleged that between 8th October 1976, and 30th April 1977 first Appellant conspired with Vissanji, Fane (a Director of the company resident it in England), Chanda (Secretary) Gutteridge (Production Manager) and Foster (Financial Adviser and a member of the company's firm of Auditors and resident in Australia) to defraud the Minister of Commerce, Industry and Co-operatives by fraudulently reducing the profit of the Company for year ending 31st December 1976 understating wheat stocks by approximately $102,448 and by other devices viz. charging capital items to revenue and writing off usable stores for the purpose of obtaining from the Minister a price fixing formula more favourable to the company than if the true operating profit had been disclosed.

The 2nd appellant (the company) was convicted (count 4) that between 8 October 1976 and 30 April 1977 the company conspired with Chand, Gutteridge and Foster to defraud the Minister by fraudulently reducing the operating profit of the company for the year ended 31 December 1976 by understating wheat stocks by approximately $102,448 and by other devices for the purpose of obtaining from the Minister a price fixing formula more favourable to the company. On Count 5 the company was convicted with conspiring with the same persons as in Count 4 to defraud the shareholders by reducing the profit of the Company by the amount stated and in the manner set out in Count 4.

As to the formulation of the conspiracy in Count 3, 4 & 5 Chanda in evidence said:

"The first meeting in October there were present Vissanji, Woodbridge, Foster A1 and myself. Vissanji said "the estimated profit of $1.2m would be too embarrassing and this profit must be reduced to between $800-$900,000." He also said that "Mr Gutteridge should play about with tape and reduce the wheat stock at the year end. Also capital items should be charged as revenue as much as possible and some of the stores items should be written off. A1 said I agree with the Chairman's view and we will try to reduce the profit". Mr Foster said ........ "We will work with Chanda closely and reduce the profit."

The case for the defence was a denial of the evidence of Gutteridge and Chanda. The Court noted that the defence claimed that incorrect accounting procedures had been adopted by the Company.

Chanda and Gutteridge who were called as prosecution witnesses acknowledged their involvement in the suppression of the wheat stocks; it was apparent therefore that they were accomplices on whom virtually the whole case for the Prosecutions depended. Therefore, as the learned trial judge indicated, a clear direction was required on the issue of corroboration and as to the evidence which constituted corroboration in the case of Chanda and Gutteridge.

For reasons it gave, the Court dismissed the arguments put forward on appeal in respect of certain matters including that:

(i) the trial was irregular and unfair because certain preliminary matters were dealt with by the Chief Justice before handing over to the trial. They noted this was pursuant to long standing practice in Fiji and accorded with practice in the Crown Courts in England;

(ii) the Chief Justice had wrongly failed to grant an adjournment until or unless a certain proposed witness for appellants had been granted immunity from prosecution;

(iii) Assessors did not include one of the same nationality as appellant; this did not render the trial a nullity;

(iv) The court had no power to require immunity of witnesses.

It is not intended to refer to all arguments or to all matters raised in respect of each complaint by Counsel.