Crown v Seluni [2010] TOSC 11; CR 189 of 2008 (18 March 2010)

IN THE SUPREME COURT OF TONGA
Criminal Jurisdiction

CR Case 189 of 2008

THE CROWN

V

SIOSIFA KOLOTI SELUNI

BEFORE HON MR JUSTICE SHUSTER

MISS A FINAU FOR THE CROWN
MR M KAUFUSI FOR THE DEFENDANT

DATES OF TRIAL 22nd 23rd FEBRUARY 1st & 03rd MARCH 2010
JUDGMENT 18th MARCH 2010

WRITTEN JUDGMENT SUPPORTING ORAL
EXTEMPORANEOUS JUDGMENT

The defendant SIOSIFA KOLOTI SELUNI, is charged with a single count of perjury an offence contrary to section 63 (1) and (3) of the Criminal Offence's Act Cap 18 of the Laws of Tonga. The charge relates to an allegation that on 5th February 2008, at Fasi Magistrates Court whilst sworn as a witness in judicial proceedings; the defendant committed the crime of perjury.

The prosecution says on that date 5th February 2008, the defendant appeared as a witness in criminal proceedings before Magistrate Latu MOHENOA, and whilst sworn in judicial proceedings the defendant made an oral statement to the effect:-

• Your Worship, the hard disc was returned to the Department and; the Auditor General POHIVA TU"I"ONETOA wrote and apologized to me regarding the hard disc. I'm keeping the letter, and I'll produce it if you want"
  

The prosecution says the defendant knew the statement he made on oath was false, and by making that statement on oath in judicial proceedings the defendant is guilty of perjury as charged. The defence strongly disagrees; they dispute the words used, and they also dispute the accuracy of entries shown in the lower court records and a typed transcript. The defence says the words were not used, and they put the prosecution to strict proof, as is their legal right.

At the conclusion of the trial and, after hearing the relevant closing submissions, I convicted the defendant giving a short extemporaneous judgment and adjourned the case for a pre sentence report to today's date. This written judgment supports what I said in open court, at the conclusion of the trial as an extemporaneous judgment.

THE LAW

A conviction for perjury cannot be obtained solely on the evidence of a single witness, as to the falsity of any statement. There must be some other evidence of the falsity of the statement - for example a letter or an account written by the defendant contradicting his sworn evidence - then that is sufficient, if supported by a single witness.

• Perjury by its very nature - is regarded as one of the most serious offences in the criminal calendar- because it wholly undermines the basis of the administration of justice per Chapman J in [R v Warner [2009] EWCA Crim 2701; 1980 2 Cr App.R( S) 42]
  

Further; perjury is regarded as serious whether it is committed in the context of a minor case, for example where a car passenger falsely states that the driver did not jump a red light or stopped at a stop sign as alleged, or, contrast a more serious case an example a false alibi witness - who testifies in a bank robbery case.

Perjury is defined under our CPA section 63 as follows:-

THE LAW ON PERJURY

(1) Perjury: - is the making by any person - upon oath or affirmation, either in a judicial proceeding, or in any affidavit or, solemn declaration, of any material statement relating - to a matter of fact, opinion, belief or knowledge - which the person making such statement knows to be false.

(2) Every proceeding shall be deemed to be judicial within the meaning of subsection (1) which is held before any court or, before any person having power to take evidence on oath or on affirmation.

There can be no doubt the Magistrate's Court at Fasi: is both in law and in fact a duly constituted court in the Kingdom of Tonga. There can be no doubt Magistrate Latu Mohenoa on 5th February 2008 was at that time a duly appointed Magistrate in Tonga this would appear to be common ground between the parties.

To prove the offence of perjury the prosecution must prove the essential elements of the offence as follows: -

• First it was the accused - in the relevant case
• Secondly the prosecution must prove the accused as a witness [or as an interpreter] was properly sworn as a witness - in judicial proceedings, and
• Thirdly, the prosecution must prove the accused made a statement willfully, [not by mistake] and
• The prosecution must prove that the witness knew the statement he made was false, and lastly
• The prosecution must prove that the statement made on oath, or affirmation - is material to the proceedings.
  

BACKGROUND - to the prosecution's case

According to the prosecution, the defendant was the complainant in a criminal case at the time of him allegedly committing perjury. The prosecution says on the 5th February 2008 the defendant was giving evidence as a witness in a criminal trial before Magistrate Latu Mohenoa at Fasi Magistrate's Court as the complainant, in a trespass public order allegation leveled against the witness PW1 - a business partner.

The case at Fasi MC - concerned an allegation of trespass and disorderly conduct alleged against PW1. More specifically the prosecution says, the case centers on circumstances surrounding the loss [or the destruction] and none return of a hard disc belonging to the Government Audit Office, to the Audit Office in 2006. The prosecution says the relevant hard disc containing important files and information, which belonged to the Auditor General's Department. They say the disc had allegedly been taken to New Zealand for repair by the defendant in early 2006. According to the prosecution the hard disc had not, and has never been returned, either to the Auditor General or to his Department, to this date.

The prosecution says an altercation took place, when PW1 attended the defendant's office, to deliver a letter from himself, and the Auditor General requesting the return of the hard disc within 14 days. The prosecution says the letters were not accepted by the defendant, and an altercation took place and words exchanged. Subsequent to the altercation at the defendant's office, court proceedings were initiated by the defendant for trespass / public order offences and on 5th February 2008 after trial - the Magistrate convicted and fined PW1. The prosecution says PW1 paid the fine.

According to the prosecution at the conclusion of the trial PW1 made certain enquiries from the Auditor General and as a result of information received PW1 made a formal complaint of perjury to the police —alleged to have been committed by the defendant at Fasi Magistrate's Court on 5th February 2008.

The prosecution says words used by the defendant at Fasi on 5th February 2008 on oath were untrue, and they say the words used by the defendant on that occasion amount to perjury. As a result of the complaint made by PW1 to the authorities the defendant was subsequently arrested interviewed and charged with the crime of perjury. On 22nd July 2008 the defendant was arraigned in the Supreme Court he denied the charge against him, as is his legal right.

EVIDENCE IN THE SUPREME COURT

This Court heard testimony from four prosecution witnesses, and also from the defendant in person. The defendant did not call witnesses on his behalf, a total of eleven EXHIBITS were tendered during the trial.

After the prosecution and defence closed their case; this court took the unusual step of calling its own witness, after it heard from the prosecution and the defence this court took this step because it considered the Auditor General's personal Secretary might have relevant evidence to give, so the court called CW1to give evidence of its own volition.

PW1: LISIATE TEULILO — For his evidence refer to transcript

FINDINGS OF FACT

• I found PW1 to be an honest and a truthful witness. As a witness PW1 was unshaken in his view of what he said — had been said on oath by the defendant at Fasi Magistrate's Court on 5th February 2008 by the defendant.
  
• PW1 convinced me he took steps to obtain a court transcript of the Magistrate's court proceedings. He also convinced me he took the time to write and check certain facts with, the Auditor General - whether:-
  

[a] The hard disc referred to in court proceedings had been returned and

[b] Whether the AG had in fact written a letter of apology.

• I accept PW1 made a formal complaint to the police of perjury which as a citizen he is perfectly entitled to do.
  
• This whole incident appear to have arisen from the fact PW1 tried to deliver two letters to the defendant - one from himself and the second letter from the Auditor General - requesting the return of the AG's hard disc.
  
• One might perhaps feel some sympathy for PW1 because he was being pushed by the Auditor General for the return of the missing hard disc-
  
• But that is and can be no excuse whatsoever for - PW1's use of bad language or his resulting conduct at the defendant's office when he went to deliver letters.
  

My analysis of PW1 is this –

• PW1 remained firm in his evidence — after being asked time and time again, the same questions - he did not budge, and he did not waiver - he remained steadfast in his belief and I fully believed his evidence of what he said he heard in the lower court.
  
• PW1 came over as a truthful, and also as a sincere witness who believed what he heard in Fasi Court on 5th February 2008 and,
  
• I believe PW1 when he said he was concerned by what he heard said to the Magistrate on oath by the defendant — he reported his finding to both the Auditor General, and the police and as a result a police investigation took place - resulting in subsequent criminal charges against the defendant.
  

PW2 - POHIVA TU"IONETOA 58, Auditor General -For his evidence refer to transcript

FINDINGS OF FACT

• It is clear that at a point in time in 2006 the Auditor General gave a damaged hard disc to the More Company for repair and, also at a point in time the hard disc was taken to New Zealand for repair by the defendant.
  
• It is also clear the defendant did not have the implied authority to destroy or to authorize anyone to destroy the government hard disc, as he was a bailee's of the property. He only had the authority to have the disc repaired.
  
• It is also clear from the Auditor General's testimony that the hard disc was never returned either to the Auditor General or, to his Department this fact is also corroborated by CW1 - the Auditor General's secretary.
  
  • It is also clear from the evidence that the Auditor General did not write any letter of apology to the defendant. This fact is also corroborated by CW1 his secretary - she said on oath that she typed all his letters, and, I believe her.
    
  • I accept PW2 did write a letter to the NZ Immigration department - indicating there were no proceedings against the defendant - at that time, and that was fact. Accordingly I accept the evidence of PW2 in its entirety. PW2 came over as a truthful witness.
    

PW3 - LOLESIO HAUSIA -Aged 42, CID Police Headquarters

• The officer read into evidence the Record of Interview, the charges form, and the confession statement which are EXHIBITS before this court.
  

PW4 TULAKI'OFAHULU TOKI : Aged 49, Clerk at the Magistrate Court since 2000. For her evidence refer to transcript

FINDINGS OF FACT

• PW4 I find as a fact - is an experienced court clerk she brought her folio and her records to court and they are now exhibits She testified the defendant was properly sworn as a witness by the court, and she told this court the record was verified by the Magistrate when her typed transcript was prepared and given to PW1.
  
• There is nothing wrong with a person acting under a duty- in checking and verifying his /her notes - so long as those notes are not destroyed or altered in any way so as to obliterate any original mark / record made therein.
  
• The court clerk explained to this court - the minor differences in the words used such as Sir /Chair, and the insertion of the word hard before the word disc, as opposed to what actually appears in her folio in her typed transcript. There is nothing sinister in these additions at all this is because the evidence also reveals the presiding Magistrate at the time signed the transcript as correct and sealed by the MC stamp. I fully accept the court clerk's evidence in its entirety.
  

THE PROSECUTION CLOSED ITS CASE. THE DEFENDANTS RIGHTS WERE EXPLIANED TO HIM. AFTER CONSULTING HIS LAWYER - OVER THE BREAK - THE DEFENDANT ELECTED TO GIVE EVIDENCE ON OATH

DW 1 SOSIFA KOLOTI SELUINI- Aged 50 a manager / expert in computer programming. For his evidence refer to transcript

FINDINGS OF FACT

I did not find DW1 to be a credible witness primarily because his version of events contradicted all other oral evidence. His evidence was in my view - unreliable.

THE COURT CALLED THE FOLLOWING WITNESS.

CW1: TEUILA FONOHOMA Secretary to the Auditor General

FINDINGS OF FACT

I found CW1 to be a credible witness; her version of events corroborated that of PW2's oral evidence. Her evidence was in my view credible and it is reliable.

CLOSING SUBMISSIONS

DEFENCE CASE

The Defence submits there were inconsistencies in the evidence of the witness PW1 and as such the prosecution cannot prove the defendant actually made the statement he is charged with in the Magistrate's Court.

• The transcript of the Magistrate's Court record shows the defendant stated on oath "that the hard disk was returned to the Department and the Auditor General wrote and apologized to him regarding the hard disk. I'm keeping the letter, and I'll produce it if you want".
  
• However the witness PW1 stated in the Preliminary Inquiry "the goods were submitted to PW2 and PW2 wrote to the defendant and apologized to him about this".
  
• The prosecution says PW1 was questioned concerning inconsistencies in his statement in the PI and the Magistrate's court transcript, and PW1 stated that in his opinion, his evidence as to the statement made by the defendant - is the same as appears in the Magistrate Court record - because although the wording is different, - it meant the same thing.
  
• The prosecution agrees with PW1's answer and says what PW1 stated in his evidence in the PI is similar to what the Court record shows as the statement made by the defendant.
  
• They say PW1 could not have recalled the exact words the defendant had said in the proceeding, but what PW1 stated in his evidence in the PI as to the statement by the defendant and what is recorded in the Magistrate Court transcript - contain the same substance and also the same meaning and message.
  

The prosecution referred this court to Archbold

At page 2443 paragraph 28-172 of the 2004 edition of Archbold- states: -

• "The evidence which the defendant gave upon the trial may be proved by the testimony of some person who was present at the trial. It is not necessary for a note to have been made or for the witness to recollect all that was said by a defendant, provided he can say what was said on the relevant issue".
  
• The Prosecution argued - in the instant case the witness PW1 did not tell us the same exact words that the defendant said, but he told us the nature of statement made by the defendant and they are:-
  
• [a] That the disk or the hard disk or the piece of property had been returned to the Audit Department or Auditor General and
  
• [b] That the Auditor General had written a letter of apology to him regarding the hard disk.
  

The second point raised by Mr. Kaufusi for the defendant is that the Magistrates Court record is unreliable because of minor differences between the clerk's folio and the typed transcript.

• The defence cited minor differences in the folio and the typed transcript and they specifically refer to the word "Chairman" which appears in the typed transcript - but which is not contained in the actual court record or folio.
  
• The prosecution argued they do not see what the relevance is - they say the words do not change the content or the substance of the statement made by the defendant - on oath on 5th February 2008 and I agree.
  
• The prosecution argues the evidence given in court clearly reveals the presiding Magistrate signed the typed transcript of the evidence and the prosecution says - because the Magistrate put his signature and his stamp on the transcript - then that is a true copy of the record of evidence of the defendant in the Magistrate's Court and I agree.
  
• The defence says that the Magistrate's Court record is unreliable the prosecution says differences highlighted by the defence, are insignificant, and they do not change the substance of the statement of the defendant as recorded in the court transcript as stated on oath by PW1.
  
• The prosecution says the main substance in the statement - is this- whether it's true - that [1] the disc or hard disc was returned to the Auditor General or his Audit Department and [2] that the Auditor General wrote and apologized to the defendant - and I fully agree.
  

The defence submitted - [a] that the court record is wrong and [b] PW1 heard wrongly, and [c] the clerk may have misinterpreted what the defendant said.

• The defendant claimed that what he actually said in Court was "Everything concerning the hard disk had been given to Pohiva and we had already had an understanding about the hard disk. He had written to me a letter dropping all the charges he had laid against me."
  
• The Crown says - this point was never put to either PW1 or PW2 for them to answer the proposition by the defendant - the prosecution says that it is unfair this was not done. They ask the Court not to give much weight to this proposition.
  
• The defendant gave evidence that his statement was - that he had returned everything concerning the hard disk to the Auditor General and they the defendant and the AG - had reached an understanding.
  
• The prosecution argued the court heard the evidence of the Auditor General and he never said anything about reaching any understanding with the defendant. Rather the Auditor General said he was disappointed with the defendant because of the numerous answers he gave - and the AG tried his best to get the defendant to return the hard disk and he still wanted that hard disk back. I agree that is exactly what the Auditor General said.
  
• The prosecution says - there was no understanding and this is shown by all the correspondence -the Auditor General did not accept the letter from Forensics NZ Ltd. The Auditor General made various attempts to have the defendant get the disk back.
  
• The prosecution says that there was no such understanding between the defendant and Auditor General and that the defendant did not make any such statement in the Magistrate Court and on the evidence - and I agree.
  
• The defendant claimed he said in the Magistrate Court that he had received a letter from PW2 stating that he's dropped legal proceeding against him, rather than a statement saying that an apology letter was given to him by the Auditor General. He confirmed in his evidence that he never used these words in the Magistrate Court proceeding.
  
• However when the defendant was interviewed by the police in answer to question 18 of the ROI, the accused stated that the Auditor General apologized to him and he still kept the letter. Again in his answer to question 20, the accused referred again to an apology letter.
  
• The prosecution asks the question was it a coincidence that the clerk had written down letter of apology in the record and for PW1 saying he heard the defendant say that the Auditor wrote a letter of apology to him. The prosecution pointed to the defendant's answer to the police that there was a letter of apology? The prosecution submits that this was no coincidence. They say the defendant did make the statement that "The Auditor General wrote a letter of apology to him regarding the hard disk" and I agree he did so and that was said on oath.
  

The fourth point raised by the Defence was that the defendant had destroyed the hard disk because he was told to do so by Teuila. Although Teuila may have denied it in Court, she might be under pressure because she works under PW2. The defence asks this Court to disregard the evidence of Teuila, and to accept the evidence of the defendant.

• The prosecution says the evidence that the defendant had given in this Court is contrary to all the evidence of the Crown witnesses, it is contrary to the answers given by the defendant to the police, and it is contrary to the evidence of CW1 the assistant secretary for the Auditor General.
  
• The prosecution says evidence of the defendant stands by itself and they submit that the defendant's evidence and version of the story is unreliable because it is his word - against the words of the principle Crown witnesses, the Magistrate Court record which the Magistrate had signed to, and also the evidence of CW1 and I fully agree.
  
• The prosecution pointed out the defendant gave evidence saying that he knows for sure what he said in Court and everyone else is mistaken and that the defendant cannot be mistaken as to what he said in Court. However, they say only 20 days after the Magistrate Court proceeding, the defendant was interviewed by the police, and not once did he say that the transcript of the Magistrate Court was wrong and he said something else. Never once did the defendant tell the police what he actually stated in the Magistrate Court, rather he told the police that he cannot confirm the transcript, he was not sure of the transcript and what was contained in the transcript.
  
• When the first two witnesses for the Prosecution were called - PW1 and PW2, not once did the defence put to these witnesses that the defendant had said something else in the Magistrate Court, not once did the defence put to the witnesses what the defendant claimed were his actual words said in the Magistrate Court.
  
• The prosecution says the question that should be asked is -when did the defendant confirm what he said, when did the defendant discovered the actual words he said in Court and come to the unwavering conclusion that he was not mistaken as to what he stated on oath in Court?
  
• Another issue that concerned the prosecution was - the defendant has sworn that he was not mistaken as to the statement he made in the Magistrate Court and there was no possibility that he may have made the statement - but when he was asked about relatively small matters i.e. whether he was sworn under oath and by whom, before giving evidence, he said he could not remember.
  
• The Crown says the defendant made up the statement he alleged - that he actually say - right before he gave evidence to this Court.
  

(v) R v Tauelangi

• The defence cited R v Tauelangi where the Court acquitted the defendant because the Crown did not call the Magistrate to give evidence as to how the oath was administered and which statement was made under oath.
  
• The defence also submitted that the prosecution cannot prove its case because according to the evidence of PW1, he did not know how the oath was administered.
  
• The prosecution says the case of R v Tauelangi is different from the present case because it involved affidavit evidence and it is not on all fours with this case - and I agree.
  

PROSECUTIOM SUBMISSION ONTHE ELEMENT OF THE CRIME

(i) That the defendant was lawfully sworn as a witness;

• The Court heard evidence from Lisiate PW1- who said he remembered the defendant was sworn in as a witness by a Police Officer before the defendant gave evidence.
  
• The clerk Tulaki Toki PW4 stated that the defendant was sworn in before he gave evidence in the proceeding before the Magistrate's Court on 05 February 2008.
  
• The defendant did not confirm in his evidence that he was sworn in before he gave evidence in the Magistrate Court.
  

(ii) In judicial proceedings:

• The second element of the charge was not disputed.
  
• In relation to the second element which is "judicial proceeding", a judicial proceeding is defined in section 63(2) of the Criminal Offences Act which states that
  

(2) Every proceeding shall be deemed to be judicial within the meaning of subsection (1) which is held before any Court or before any person having power to take evidence on oath or affirmation."

• The prosecution says the proceeding in which the alleged perjury occurred was before the Magistrate Court the Crown says that they fall within the definition of judicial proceeding in section 63(2) of the Criminal Offences Act (Cap. 18) and I agree these were judicial proceedings
  

(iii) That the defendant made a statement willfully, that is to say deliberately and not by mistake;

• The Court heard the evidence of PW1 who stated that he heard the defendant say in Court that he had returned the hard disk to the Auditor General and that the Auditor General had apologized to him about the disc drive.
  
  • The Court heard the evidence of the clerk who recorded the proceeding and the court has also seen the transcript of the proceeding and it states that the defendant stated that "he had returned the disk to the Department and the Auditor General had written and apologized about the hard disk, I still keep the letter if needed I will produce it".
    
  • Both prosecution witnesses PW1 and PW4 stated that the defendant made this statement when he was giving evidence in the trial. There was no evidence to suggest that this statement was made by mistake but rather the defendant had intentionally made this statement when he was cross examined by the lawyer for Lisiate.
    
  • The defendant also admitted that at the time of the proceeding in the Magistrate Court, he knew for sure that the disk drive had been destroyed. However the defendant claims that he never made this claim in the proceedings.
    
  • The prosecution says the Magistrate's Court record states that the defendant made the statement and the Court's record was confirmed by the presiding Magistrate and they say the Court record speaks for itself and I fully agree.
    
  • The defendant denied these were the words he spoke, but rather he said something else that he was misinterpreted and information was incorrectly recorded.
    
  • The prosecution asked the question; how can the defendants own recollection be more accurate than 3 other people - who were present during the case and they each confirmed that the statement on the record is the statement that was made by the defendant, is the court to rely on the defendant's memory or his claim? This court agrees it must be the record and the witnesses.
    
  • The prosecution says that this Court cannot rely on evidence that the defendant had just made up towards the end of the case. The first time the Court heard about this claim by the defendant —that, he said something else was towards the end of the case was when the prosecution says he told us the exact words he claimed he said in the Magistrate Court. They say he is an unreliable witness and I agree.
    

Whether the statement made by the defendant is material in the judicial proceeding. This requirement is for the court to decide viewing the statement objectively.

• The prosecution says the case in the Magistrate Court was in relation to a conflict between the defendant and PW1 which ended up with PW1 being charged and convicted of trespassing and being disorderly in a public place.
  
• The prosecution says the lawyer for PW1 tried to make it known to the Court that the conflicts between the parties and the disturbance arose out of circumstances involving a hard disk belonging to the Auditor General and PW1 wanted the defendant to return the disk.
  
• However, the defendant stated on oath in court that the hard disk has been returned to the Auditor Genera when it had not.
  

The prosecution says the statement made by the defendant is material to this case, because the hard disk is the main reason for the conflicts between the parties, and for the defendant - to state on oath that the disk had been returned - would more likely than not have shown the Magistrate that PW1 did not have any justification or reason for his behaviour, or for his visits to the defendant's place: - and I fully agree with that proposition.

That that statement was false;

The Court heard evidence from the Auditor General himself who stated on oath that:-

(a) The defendant never returned the hard disc to him or his department. The Auditor General had never written to the defendant to apologize to him about the hard disk drive.

(b) The Auditor General confirmed to this Court that the statement that was made by the Defendant in the Magistrate Court proceedings were not true.

That the witness knew it was false or did not believe it to be true;

This Court heard the evidence of PW1 a business partner of the defendant and. HE STATED:-

• After the defendant went with the disk drive and he did not return with it from New Zealand that on several occasions PW1 wrote to the defendant asking him for the return of the disc drive.
  
• PW1 tried many ways to get the defendant to return the hard disk, as this was important property belonging to the Audit Office.
  
• PW1 wrote letters and he sent emails - and he said there was no response.
  
• PW1 visited the defendant many times.
  
• On most of his visits, PW1 admitted that he argued with the defendant.
  
• On two occasions PW1 was charged with trespassing and for causing a disturbance.
  
• PW1 stated that during one of his visits, the defendant told him that he had thrown the hard disk in the rubbish.
  

In the evidence of PW2 he stated that:

• PW2 talked with the defendant before the defendant took the hard disk to New Zealand to be repaired.
  
• PW2 says he did not authorize the defendant to destroy the disk.
  
• When the defendant returned without the hard disk, PW2 said he wrote letters to the defendant and talked with the defendant - demanding the return of the hard disk.
  
• The defendant gave PW2 many answers
  
• The defendant told him PW2's brother will carry the hard disk from NZ by hand.
  
• The defendant told PW2 that it would be sent on an ANZ flight and he would personally deliver it to the Auditor General.
  
• The Auditor General then received a fax from Forensics NZ Ltd stating that the defendant had authorized the company to destroy the hard disk
  
• PW2 did not accept the faxed letter from Forensics NZ Ltd and he expressed his disappointment in a letter to the defendant.
  
• PW2 said he wrote a letter and sent a copy to the NZ High Commission asking them not to let the defendant travel to NZ.
  
• The Auditor General stated he kept pursuing the defendant to return his hard disk but it was never returned to either him or to his department.
  
• The prosecution says correspondence and events between the defendant and PW1 and the Auditor General took place before the trial in the Magistrate Court on 05 February 2008.
  
• In evidence, the defendant admitted he knew "for sure" the hard disk was destroyed in 2006 then this court asks itself, - then why not just say so in the lower court.
  
• The prosecution says the defendant knew for sure the statement which he made in court about the return of the disk drive was false - and they say the defendant was constantly reminded and he was constantly being pursued for the discs return.
  
• The prosecution says the defendant knew that the Auditor General had never written him a letter of apology because the disk was never returned and I agree.
  
• The prosecution says the defendant's case is unreliable and it should not be accepted. They say the prosecution has proved all the elements of the charge against the defendant beyond any reasonable doubt. The defence point to inconsistencies in the evidence and ask me to acquit.
  

CONCLUSION

My conclusion on considering the evidence submitted by both the prosecution and the defence:-

• I conclude the prosecution has proved its case against the defendant beyond reasonable doubt, so that I am sure the defendant committed the crime of perjury alleged against him by the prosecution on 5th February 2008 at Fasi Magistrate's Court.
  
• I convict the defendant of the crime of perjury with which the defendant has been charged with on this indictment in case number CR 189/08.
  
• I readily adopt the prosecution's version of events, because the prosecution witnesses were both credible, and they were also reliable witnesses - whereas the defendant did not come across as either, a credible or as a reliable witness.
  
• Because of the nature of the offence charged lying on oath in judicial proceedings, I order a review of the prosecution's original file - which resulted in the conviction of PW1 in the Fasi Magistrates Court on 5th February 2008
  
• It is imperative that a review is made of that case as a matter of course — and urgently — and to allow this to be done — ostensively - as an appeal made out of time I will list that case for Monday 26th April 2010 at 09.30, in this Court, and the Crown are to attend on that date to make any necessary representations.
  

SHUSTER J
JUDGE OF THE SUPREME COURT