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Singh v State [2019] FJCA 10; AAU0078.2016 (14 February 2019)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 0078 OF 2016
(High Court HAC 250 of 2014)

BETWEEN:

MUKESHWAR NARAYAN SINGH

Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA

Counsel : Mr K Singh the Appellant
Ms J Prasad for the Respondent

Date of Hearing : 28 November, 2018
Date of Ruling : 14 February, 2019

R U L I N G

[1] The Appellant was charged with one count of Money Laundering contrary to Section 69(2)(a) and (3)(a) of the Proceeds of Crime Act 1997 as amended by Proceeds of Crime (Amendment) Act 7 of 2005 and Proceeds of Crime (Amendment Act) No. 61 of 2012.

[2] The Appellant was convicted of the said charge and was convicted and sentenced on 1^st July 2016 to 7 years imprisonment with a non-parole period of 5 years and 6 months imprisonment.

[3] The Appellant filed a timely notice of appeal wherein he set out the following grounds of appeal:

“1. That the Learned Trial Judge erred in law and in fact in sentencing the accused to 7 years imprisonment which sentence is harsh and excessive in all the circumstances considering the fact that the Accused is a first offender.

2. That the earned Trial Judge erred in law and in fact when he failed to direct and guide the assessors on how to approach the answers contained in the Caution interview.
3. That the Learned Trial Judge erred in law and in fact in failing to hold the burden to the prosecution to prove how the Government was deprived of the $102,843.50.
4. That the Learned Trial Judge erred in law and in fact in that he failed and/or neglected and/or did not adequately consider the defense case.
5. That the Learned Trial Judge erred in law and in fact admitting and relying upon evidence of lay witness as opinion evidence particularly evidence of the purported signatures on vital documents which were fundamental to the prosecution case.
6. That the Learned Trial Judge erred in law and in fact in not dealing adequately and/or properly and/or sufficient on circumstantial evidence and in not identifying what evidence was or could be classified as circumstantial evidence.
7. That the Learned Trial Judge erred in law and in fact in misdirecting and/or not properly and/or sufficiently himself and the assessors in the standard and burden of proof and the accused right to remain silent.
8. That the verdict is unsound, dangerous, unsafe, unreasonable and cannot be supported having regard to the evidence as whole, hence there has been a miscarriage of justice.
9. That the sentence is wrong in principle, harsh and excessive in the circumstances of the charge.”

[4] Grounds 1 and 9 are regarding the sentence imposed on the Appellant. The main contention is that the Appellant was a first offender.

[5] The tariff for money laundering is 5 to 12 years. The learned trial Judge took into consideration the mitigating factors which included the fact that the Appellant was a first offender when sentencing the Appellant and finally imposed a sentence of 7 years with a non-parole period of 5 years and 6 months.

[6] The learned trial Judge gave a discount of 3 years for the mitigating factors which was a reasonable discount in reaching the final sentence which was within the tariff.

[7] In those circumstances I do not see any error in the sentencing exercise and therefore grounds 1 and 9 are not arguable.

[8] The 2^nd ground of appeal is regarding learned trial Judge’s direction as to how to approach the answers contained in the caution interview which the Appellant urges was not adequate.

[9] The caution interview was not challenged and was part of the evidence led by the prosecution. The learned Trial Judge had adequately directed the Assessors as to how they should consider the caution interview of the Appellant.

[10] Therefore the 2^nd ground of appeal is not arguable.

[11] The 3^rd ground of appeal is in relation to the deprivation of the sum of money which had been drawn out by way of cheques and that the learned Trial Judge had not placed the burden on the prosecution to prove the loss.

[12] The Respondent’s position was that there was no burden on the State to show the government was deprived of the money.

[13] The involvement of the Appellant was in relation to the encashing of the cheques which were refunds on fictitious claims.

[14] In those circumstances it would be best left to the full Court to consider whether it was necessary as far as the case against the Appellant was concerned whether it was necessary to prove the loss to the State. Therefore I grant leave on this ground.

[15] The fourth ground is on the basis that the learned Trial Judge failed to adequately consider the defense case.

[16] The Appellant did not give evidence at the trial. The prosecution relied on the evidence of their witnesses and the caution interview statement of the Appellant which was admitted.

[17] The case for the Appellant was based mainly on the cross examination of the witnesses for the prosecution and the learned trial Judge had placed these positions before the Assessors in his summing up.

[18] This ground is not arguable.

[19] In ground 5 the Appellant takes up the position that the learned Trial Judge had erred by relying on the evidence of lay witnesses on the signatures on vital documents which were fundamental to the prosecution case.

[20] This is a matter which will have to be considered with the entirety of the proceedings and documents and I would leave this matter for consideration by the Full Court.

[21] Ground 6 refers to the learned Trial Judge not adequately dealing with circumstantial evidence and in not identifying what evidence was or could be classified as circumstantial evidence.

[22] The learned trial Judge had in his summing up dealt with circumstantial evidence adequately and therefore this ground is not arguable.

[23] In ground 7 the Appellant submits that the learned Trial Judge has misdirected himself and the assessors on the standard and burden of proof and the accused’s right to remain silent.

[24] The learned trial Judge has in his summing up dealt with these adequately and therefore this ground is not arguable.

[25] Ground 8 is an all inclusive ground where the Appellant urges that there has been a miscarriage of justice having regard to the evidence as a whole.

[26] This is a matter which would require looking into the entire evidence in the case together with the documents and therefore it would be appropriate to leave it for consideration by the Full Court.

Orders of Court:

(1) Leave to appeal is granted on grounds of appeal 3, 5 and 8.
(2) Leave to appeal is refused on grounds 1, 2, 4, 6, 7 and 9.

Hon. Justice Suresh Chandra

RESIDENT JUSTICE OF APPEAL