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State v Alifereti - Ruling 2 [2008] FJHC 209; HAC0018.2005 & 0040.2007S (9 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 0018/05 & 0040/07S

BETWEEN:

THE STATE

AND:

PITA KONI ALIFERETI
PELI KETE DOVIYAROI
JOSEFA TAPELE

Ms A. Driu and Ms. S. Puamau for the State
Mr. S. Leweniqila for Pita Koni Alifereti
Mr. H. Rabuku for Peli Kete Doviyaroi & Josefa Tapele

Date of Hearing: 8 September 2008
Date of Ruling: 9 September 2008

RULING
[No Case to Answer]

1. Following the closure of the Prosecution case in this trial earlier today, I advised counsel for all parties that in exercise of my discretion under section 293(1) of the CPC, I determine as follows:

i) That there is a case to answer for the following accused persons Pita Koni Alifereti and Peli Kete Doviyaroi and they will be put to their defence;

ii) As regards Josefa Tiko Tapele, I am prepared to hear a ‘no case to answer’ submissions from his counsel if he wish to make one.

2. I advised Counsel for the State and for Josefa Tapele that I will hear their submissions at 2.30pm.

Submission for Josefa Tapele

3. Mr. Rabuku in making submission before the court widen the scope of his submission to include a submission that the charge is defective, incurable and is therefore bad in law. This submission was with reference to his other client Peli Kete Doviyaroi as well.

4. The only ground advanced on the no case to answer submission was that there is no prima facie case in that there is no evidence with regard to one of the essential elements of the offence of Official Corruption: contrary to section 106(b) of the Penal Code Cap 17. In particular Mr. Rabuku submits that there is no evidence that the cash payment of $200.00 alleged in the charge was actually received by Josefa Tapele.
With regard to the $58.32 worth of chicken that Josefa Tapele collected from MH Nausori, Mr Rabuku submits:

‘Mr Tagicaki PW35 stated in cross examination that Mr. Tapele claimed the chicken was for the official function in which the senior management of the Ministry visited the Central Division in Nausori. When asked to investigate he investigated further to confirm that claim by Mr. Tapele, he stated that he did not investigate further as he took his answer as being the truth’

5. From the above, Mr. Rabuku pray that the court find that there is no case to answer against Josefa Tapele with regard to charge against him in the Information and must be found not guilty and acquitted.

State Submission

6. In her written submission and verbally in Court, Ms Driu set the relevant provision of Section 293(1) CPC that governs No case submission in the High Court; she referred to relevant case law authorities in Sisa Kalisoqo[1], and Mosese Tuisawau[2]

7. As regards, the evidence she stressed the business link between Josefa Tapele and Pita Alifereti are important in the courts determination of the issues at this stage of the trial. She further states that there is no escaping that moneys and goods in the form of chicken and alcohol have been sought from Pita Alifereti and received by Josefa Tapele. To this assertion the Ms Driu refers to the following Q & A in Josefa Tapele’s caution interview statements: 800,801,803, 805,806.

8. The State further submits that given that the cheque butt 981[Exhibit 87] and MH Invoice [Exhibit P 170] tendered in the trial speaks for themselves, coupled with the caution interview of Josefa Tapele, the assessors are capable of drawing an inference that the money and goods received by the accused was corrupt in nature.

Defective charge

9. I have carefully considered the submission made by Mr. Rabuku on defective charges against both his clients. It was stated that the submission was made under section 119 of the Criminal Procedure Code Cap 21.

10. The submission on this issue was misinformed and has no merit.

11. It is sufficient in dealing with this submission, to say that the charges in the Information preferred by the State against his clients is under section 106 (b) of the Penal Code Cap 17, not under any provision of the Public Service Act Cap 74 or its later version. The reference to the Public Service Act is mere superfluous and is not an essential element of the offence charged.

12. The essential element in the charge is the fact that they were civil servants and were engaged in the capacities alleged in the charge and did receive payments in cash and property corruptly. These were the basic matters that were needed to be in the particulars of the offence for a charge preferred under section 106(b) of the Penal Code Cap 17. In this case the two accused persons in question were in no doubt of the particulars of the offence they were facing: Chandar Shekar & Bimal Sankar v The State [2005] FJCA AAU 056/04 . Any suggestion that the Public Service Act is an essential element of the offence charged in this instance is incorrect and if there are any prejudice caused, it will not because of the wording of the charge.

13. As to Mr Rabuku’s submission that his client were prejudice in the preparation of their defence by the reference to the section 6 of Public Service Act Cap 74. All I need to observe is that this submission may be relevant in the Abuse of Office charge, which are no longer before the court.

14. I dismiss this submission as having no merit.

Relevant law on No Case to Answer

15. It is important to understand that at this stage in the trial, the court is concerned only to determine whether there is some relevant and admissible evidence in respect of each element of the offence alleged against him in the Information: State v Anthony Frederick Stevens [1998] 44 FLR 165 and State v George Shiu Raj & Sashi Shalendra Pal[2006] FJCA 35

16. In the case of a charge of official corruption under section 106(b) of the Penal Code Cap 17, it is incumbent of the prosecution to produce credible evidence to show not only that the accused received some property or benefit but also that the benefit or property was received by the accused person on account of or in consideration for something done by the accused in the discharge of his official duties: State v Seruveveli Aisake (1993) 39 FLR 68.

17. It would not be enough if the evidence merely showed that Josefa Tapele showed a favor towards Pita Koni Alifereti or that he received a benefit or property, but additionally it must be shown on the evidence that the two elements are so linked in time and circumstances so as to give rise to the irresistible inference that the transaction was corrupt one: State v Eminoni Bola [2005] FJHC 230.


Assessment of Evidence

18. At this stage in the trial, I am concerned only to determine if the prosecution evidence in all its totality touches on all the elements of the offence of Official Corruption: contrary to section 106(b) of the Penal Code cap 17. The elements of the offence are:

i) Josefa Tapele

ii) Being employed in the civil service

iii) Corruptly received

iv) Payments in cash and other payments totaling $258.32

v) On account of acts done or to be done afterwards by him in the discharge of his duties as senior accounts officer in MAFF

19. In reviewing the evidence adduced at the end of the prosecution case, there is no admissible evidence that the $200 referred to in Exhibit 87 was actually received by Josefa Tapele. The cheque leaf for Cheque no: 981 was not recovered from the ANZ Bank. There was no evidence that Josefa Tapele received $200.00 as a result of either cashing the cheque or depositing it in his account. The prosecution evidence did show that the cheque amount had been drawn out of Pita Koni Alifereti’s account. Who drew the amount or for whose benefit was it drawn for, there is no evidence.

20. Mr Clive Hudson PW 34 was called as an expert from the Serious Fraud Office, Auckland New Zealand. His evidence on the documents he saw before he prepared the schedule of payments made by Pita Alifereti to Josefa Tapele, was that it did not include cheque leaf 981.

21. Detective Inspector Isireli Tagicaki in cross examination said that he did show the cheque leaf 981 to Josefa Tapele during the caution interview and latter admitted that he cashed the cheque. I do not believe this statement by Tagicaki because the evidence of ACP Nasir Ali was that this particular cheque was not recovered from the relevant bank. Secondly, in an interview where all details were carefully recorded, I am unable to believe that such an important admission, if it was in fact made, was not recorded as in this case.

22. As they stand there is no evidence that the beneficiary of the debiting of Pita Koni Alifereti was Josefa Tapele. This gap in the evidence is fatal. The State submission that the business link and acquintances between Pita Koni Alifereti and Josefa Tapele is not relevant in bridging that gap but may be useful for the assessors in terms determining corrupt motive in receiving cash or other payments. There must be evidence first that Josefa Tapele received cash and other payments. After all that is the core of the allegation against him. I have come to the conclusion that as regards $200.00 out of the $258.32 that the charge in Information alleges to have been paid to Josefa Tapele, the prosecution, have not adduced any evidence that he received that amount.

23. I now turn to consider the balance of the amount alleged in the charge, namely, $58.32 worth of chicken and alcohol taken from MH Nausori by Josefa Tapele. The issue here is not whether he received it; Josefa Tapele himself admitted that he was the person who collected it from MH Nausori. When asked during his caution interview in Q815 and Q816, Josefa Tapele said it was for an official function on the occasion of the visit of HQ management Staff to the Nausori Office.

24. The answer he gave to Q807 suggests that these were donations from Pita Alifereti. When Detective Inspector Isireli Tagicaki [PW 35] who interviewed Josefa Tapele was asked in cross-examination as to why he did not further investigate the answer given by the accused, he responded by saying that he accepted it as the truth. In other word, he did not consider the circumstances of Josefa Tapele taking those goods as anything other than what he said.

25. In response to the prosecution submission in paragraph 4.12 of their written submission, I merely stressed that the charge against Tapele was that he corruptly received $258.32. The prosecution case was presented on the basis that the payments were of two kinds: $200 in cash vide Cheque No 981 and $58.32 in goods [chicken etc] collected from MH/Nausori. If there were other payments, they are not relevant in the context of the narrow focus of the charge herein question.

26. In the light of the above I am satisfied that as regards the $58.32 worth of chicken and alcohol, there is no evidence that he corruptly received it. He was there as a pick up person for goods destined for the use of an office function. Even the police investigator accepted this explanation.

Conclusion

27. In conclusion, I find that the submission of ‘no case to answer’ against Josefa Tapele succeeds. I find him not guilty of the charge standing against him in the Information. I acquit him accordingly.

Isikeli Mataitoga
JUDGE

At Suva
9 September 2008.

[1] FCA Crim App No: 52 of 1984
[2] FCA Crim App No: 14 of 1990.