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Fiji Independent Commission Against Corruption v Kumar [2011] FJCA 52; AAU0066.2010 (25 November 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU 0066 OF 2010
[Criminal Action No. 12 of 2001 LTK]

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
("FICAC")
Appellant

AND:

SUNIL KUMAR
Respondent

Coram: Hon. Justice William Marshall, Justice of Appeal
Hon. Justice Sriskandarajah, Justice of Appeal
Hon. Justice William Calanchini, Justice of Appeal

Counsel: Mr. V.Perera and Ms.H.Matakitoga for the Appellant
Respondent appeared in Person

Date of Hearing: Thursday, 10 November 2011
Date of Judgment: Friday, 25 November 2011

JUDGMENT

William Marshall, JA

1. I agree with the judgment and proposed order of Sriskandarajah, JA.
   

Sriskandarajah, JA

2. The Respondent was the Resident Magistrate Court Nausori during the relevant time. He was charged with seven counts of attempting to prevent the course of Justice contrary to Section 131(d) and 47 of the Penal Code Cap 17. Two counts were withdrawn and the trial against the Respondent commenced on 28th of July 2010 on five counts. The third count was withdrawn in the course of the trial due to the absence of witness Sergeant Timoci as that count was based on the remarks made to witness Timoci.
   
3. After the conclusion of the prosecution case the Learned Judge considered the evidence, and as he was of the opinion that there was no case to answer called upon the prosecution and the accused to make submissions on that issue. After considering the evidence and submissions the Learned Judge delivered his Ruling on 13th August 2010 acquitting the accused from all four counts.
   
4. The Appellant has appealed against the Ruling of the Learned Judge on the grounds given in the notice of appeal filed on 10th of September 2010.
   

"Grounds of Appeal

1) The Learned Trial Judge erred in law in applying the wrong test in the 'No case to Answer' stage in the High Court.

2. The Learned Judge erred in law by usurping the role of the assessors when deciding that there was no evidence of "intent" to commit the offence of an "Attempt to prevent the Course of Justice" when there was sufficient circumstantial evidence to that effect.
   
3. The Learned Trial Judge erred in law in finding that there is no evidence on each element of the offence in count (1),(2),(4) and (5)."
   
5. Before considering the grounds of Appeal I will first deal with the charges levelled against the Respondent and the evidence.
   
6. The trial against the Respondent proceeded on four counts of similar offence, they defer in the dates of the commission of the offence in relation to different witnesses. I give below one of the counts:
   

"ATTEMPTING TO PREVENT THE COURSE OF JUSTICE: Contrary to Section 131 (d) and section 47 of the Penal Code,cap17.

Particulars of Offence

SUNIL KUMAR s/o Baiju, on the 11th day of May 2007 at Nausori in the Eastern Division, whilst presiding as Resident Magistrate at the Nausori Magistrate's Court, ordered Special Constable No.2103 Divendra Singh who was giving evidence on oath on Traffic Formal Proof cases to stop booking offending drivers or he would be crippled like former Police Commissioner, Mr. Jimi Koroi, thereby attempting to prevent the course of justice by discouraging such officer from carrying out his official Police duties."

7. The incriminating evidence led in proof of count one is that of Special Constable No.2103 Divendra Singh. He said in his evidence:
   

"We were not able to answer all the questions because I had about 100 formal proof notices. I did not remember speed, place of offence etc.

Mr.Sunil Kumar gave me the file and study the facts and come and give evidence. I was also given the files. Even after going through the files I was not able to grasp all the details in the file. Because of the number of files. We were called back to give evidence and we could not give all the details asked by the Magistrate.

Then Sunil Kumar was making remarks saying your people can't give evidence, why are you doing so many bookings. You people need to be spoon-fed, make rice and dhal and feed you. You are being cursed by the drivers. My former Commissioner, Jimi Koroi, another officer whose limb has been amputated and it can happen to me. We were discouraged by the Magistrate.

Court: Did the Magistrate asked not to book?

Yes

Jimi Koroi was on wheel chair and that can happen to me. I have not seen him, I heard it from people."

8. The incriminating evidence led in proof of counts two, four and five are that of Woman Police Constable No.3088 Ashika Mala.
   

In relation to count two she said:

"Proceedings were held in Chambers of Mr. S. Kumar ...... on 7th June 2007 Mr. Sunil Kumar started going through the dockets. Mr.Sunil Kumar stopped and said why you were making so much of bookings. You are killing the People of Nausori. He said what happened to Jimi Koroi. He is on wheel chair. This is what will happen to you. He asked me whether I'm married and I said just engaged.

Your children, when born will be crippled. I felt so bad and built fear in me for making bookings. It resulted in less bookings. Normally 10 -15 per day was done.

In relation to count four she said:

"I went again before him on 30th August 2007......Mr. Kumar started questioning on bookings. My response was 'yes'. I could not answer on the exact speed. He made some remarks and referred 'Jimi Koroi'. What happened to 'Jimi Kori'. I just kept quite. He was former Commissioner of Police.........I felt a fear that it would happen to me. It affected my bookings.

In relation to count five she said:

"I experienced same experience on 18th September,2007. .....You will be crippled like Jimi Koroi – TIN, dockets affected. It affected my work. I reduced my booking and asked I be transferred".

9. The offence charged is under Section 131(d) of the Penal Code (Chapter 17). This Section falls under the heading:
   

"Conspiracy to defeat justice and interference with witness"

Section 131. Any person commits a misdemeanour who –

(a) conspires with any other person to accuse any person falsely of any crime or to do anything to obstruct, prevent, pervert or defeat the course of justice; or

(b) in order to obstruct the due cause of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so; or

(c) obstructs or in any way interferes with or knowingly prevents the execution of any legal process, civil or criminal; or

(d) in any way obstructs, prevents, perverts or defeats, or attempts to obstruct, prevent, pervert or defeat the course of justice".

Subsections (a) to (c) of Section 131 provides for specific instances in which a person could of interfer in the course of justice but subsection (d) is an omnibus clause, when interpreting subsection (d) it has to be read in conjunction with the other clauses of the section and the heading under which this section is placed.

10. All the instances mention in subsections (a) to (c) are positively identified instances that had come into existence or occurred, namely: (a) conspires to accuse any person falsely of any crime,(b) interfering with a person lawfully bound to appear and give evidence as a witness and (c) prevents the execution of any legal process. These instances are not in relation to a future uncertain occurrence.
    
11. It is not the case of the prosecution that the Respondent interfered by uttering words or otherwise with the witnesses Special Constable No.2103 Divendra Singh or Woman Police Constable No.3088 Ashika Mala, in order to affect the outcome of the cases in which they are giving evidence. In fact the case referred to in the charges ended up in conviction and the accused charged were adequately punished by the Respondent.
    
12. The position of the prosecution is that by warning the witnesses that you would be crippled like former Police Commissioner if you do not stop booking offending drivers the Respondent has discouraged those officers from carrying out their official police duties in future. This is not the same as preventing the booking of an offence when the booking is taking place. By his act (the words used) the Respondent has not prevented or has not attempted to prevent a booking of an offence that has been committed. The allegation against the Respondent is that he has attempted to prevent a booking of an offence that is yet to be committed by an unknown person. This is not the interference contemplated in section 131 (d) of the Penal Code.
    
13. The evidence reveals that the Respondent has cautioned the witnesses to be ready in court to produce adequate evidence to prove a case otherwise do not book a case. I reproduce the relevant portions of the Learned Judge's finding:
    

"I. The accused took-up the traffic cases in the morning from 08.00 – 9.00 a.m.

2. The accused used to ask for details of traffic infringements from witnesses;
   
3. As and when the witnesses failed to know the details of TINs, he rebuked and remarked 'if you cannot remember the details of your bookings, do not book people for the sake of booking;
   
4. The accused adjourned the proceedings to enable the two witnesses to refresh their memories on the relevant dates;
   
5. The accused wanted the witnesses to fill details that they tended to forget in a white form to expedite the disposal of cases;
   
6. The accused made the utterance only in the course of the proceedings in relation to TINs that came up in the ordinary course of the business of court presided over by him;
   
7. The accused had not asked to stop booking in general;
   
8. The accused had not asked not to book any particular person, group or class of persons."
   

15. The Learned Judge has found from the evidence led in this case that the accused made the utterance only in the course of the proceedings in relation to TINs that came up in the ordinary course of business of court presided over by him.
    
16. Section 15 of the Penal Code provides immunity for judicial officers from criminal prosecution for anything done by him in the exercise of his judicial function, although the act done is in excess of his judicial authority. Section 15 provides as follows:
    

"Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done."

17. The Respondent had warned the prosecution witness in the course of a Judicial proceeding that had taken place before him. The words used by the Respondent had gone beyond mere cautioning of the witness and imputed on the witnesses certain consequences if they book cases without sufficient evidence and he further said to avoid such bookings. If at all this acts could be seen as the act done in excess of his judicial authority in the exercise of his judicial function namely; questioning and clarifying evidence from witnesses
    
18. As the Respondent is not criminally responsible for the act done by him in the cause of judicial proceedings the Respondent cannot be charged under Section 131(d) of the Penal code.
    
19. For the reasons stated above no case was established against the Respondent on the evidence led.
    
20. The Appellant in grounds of Appeal No.1,2 and 3 has challenged the findings of the Learned Judge that there is no evidence on each element of the offence in count (1),(2),(4) and (5), Challenged the test applied in the 'No case to answer' stage and Challenged the finding on the basis that he has usurped the role of the assessors.
    
21. The prosecution heavily relied on the case of Sisa Kalisoqo v. Reginam Criminal Appeal No.52 of 1984 to demonstrate that the Learned Judge applied the wrong test in the ' No case to answer" stage. In Sisa Kalisoqo (supra) the court held:
    

"In the present case a submission of 'no case' was made by the Appellant's counsel at the end of the case for the prosecution and the Judge heard argument thereon in the absence of the assessors. Even if there had been no such submissions, the judge would have been obliged to consider the question. And it seems to us that he has to approach the matter on the same basis, whether the accused or his counsel raises the matter, or he is left to consider it pursuant to the duty imposed upon him by section 293(1). In each instance he has to ask himself and answer the question: 'Is there no evidence that the accused committed the offence?'"

22. The test that should be adopted at the stage of 'No case to answer' was discussed by the Learned Judge by citing long line of cases. It is not necessary to decide this point in this appeal. As the Appeal fails for the reason that there is no evidence to prove that the accused committed an offence.
    
23. Under Section 231(1) of the Criminal Procedure Decree No 43 of 2009, whether the accused or his counsel raises the issue of no case to answer or not, it is the obligation of the judge when the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, record a finding of not guilty if it considers that there is no evidence that the accused persons committed the offence.
    
24. In this case the Learned Judge has no option but to acquit the accused at the end of the prosecution case as there is no evidence to prove the charges.
    

William Calanchini, JA

25. I also agree with the judgment and proposed order of Sriskanadarajah JA.

William Marshall, JA

ORDER OF THE COURT

26. The Court orders
    

(1) The appeal of Fiji Independent Commission Against Corruption be dismissed.

................................................
Hon. Justice William Marshall
Justice of Appeal

................................................
Hon. Justice Sriskandarajah
Justice of Appeal

................................................
Hon. Justice William Calanchini
Justice of Appeal