IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0010 OF 2003S

Between:

MOHAMMED SHEIK HASSAN
Appellant

And:

THE STATE
Respondent

Hearing: 8th April 2003
Judgment: 17th April 2003

Counsel: Mr R. Chand for Appellant
Mr J. Waqaivolavola for State

JUDGMENT

This is an appeal against conviction and sentence. The Appellant was convicted of the following offences, being Counts 1 and 3 of the charge sheet:

COUNT 1

Statement of Offence

CONSPIRACY TO COMMIT MISDEMEANOUR: Contrary to section 386 of the Penal Code, Cap 17.

Particulars of Offence

SATEYENDRA SINGH s/o Surendra Singh, EDWARD HARI SAMI s/o Krishna Sami, MOHAMMED SHEIK HASSAN s/o Ahmed Hassan and NARENDRA SHARMA s/o Jagdishwar Sharma at Korovou, Tailevu in the Central Division, conspired together with intent to defraud the National Insurance Co., by falsely representing that on 8/8/98 motor vehicle registration number AS312 had a valid certificate of roadworthiness and a motor vehicle license.

COUNT 3

Statement of Offence

GIVING FALSE CERTIFICATES BY A PUBLIC OFFICER: Contrary to section 112 of the Penal Code, Cap 17.

Particulars of Offence

MOHAMMED SHEIK HASSAN s/o Ahmad Hassan on the 12th day of August,1998 at Valelevu, Nasinu in the Central Division being employed as a Vehicle Examining Officer at the Department of Road Transport, gave a Department of Road Transport Vehicle Inspection Sheet containing a false particulars in relation to motor vehicle registration number AS312 to obtain a certificate of roadworthiness for the said vehicle knowing that such particulars are false.

After a trial, he was sentenced on 12th November 2002 to 9 months imprisonment on each count to be served concurrently, suspended for 2 years.

The grounds of appeal as amended on 2nd April 2003 are as follows:

a)	that the learned trial magistrate erred in law and in fact in finding the Defendant guilty of giving false certificate as per Count 3 of the Charge when in fact there was insufficient evidence adduced by the prosecution to establish the same.

b)	That the learned trial magistrate erred in law and in fact in coming to the conclusion that the prosecution has established by way of adduced evidence that all elements as per the charge and the particulars of offence in Count 3 were established beyond reasonable doubt.

c)	The learned trial magistrate erred in law and in fact in coming to the conclusion that the Appellant conspired with 3 other accused as per Count 1 in committing the offence of conspiracy when there was no evidence whatsoever to establish the same.

d)	The learned trial magistrate had erred in law and in fact in giving undue weight to the prosecution’s evidence in Count 1 and Count 3 thereby finding the Appellant guilty.

e)	That the learned trial magistrate had taken into account extraneous matters and facts unrelated to the charge in both counts 1 and 3 in finding the accused guilty.

f)	That the learned trial magistrate has failed to give reasons for his finding the Appellant guilty.

g)	That the learned trial magistrate erred in law in casting the onus and burden of proof onto the Appellant and thereby finding him guilty.

h)	That the learned trial magistrate’s sentences in both the counts 1 and 3 were manifestly harsh and excessive taking into account all the circumstances of the case and that the Appellant was a first offender.

The history of the case

There were 5 counts on the charge sheet. On 9th June 2000, the 1st, 2nd and 4th accused pleaded guilty and were dealt with on the same day. The facts outlined by the police prosecutor were that on the 8th of August 1998, a private car Registration AS312 belonging to the 1st accused, Satyendra Singh was involved in an accident at Burerua Village, Tailevu. The 1st accused realised that his vehicle was not effectively insured, and that his vehicle licence and driving licence had expired. Although the vehicle had been insured at the National Insurance Company, the Company would not pay where there was an invalid vehicle licence. The 1st accused approached the 4th accused, an employee of Niranjan’s Autoport and asked him if he knew anyone who could issue a Certificate of Fitness to allow the 1st accused to make an insurance claim. The 4th accused approached the 2nd accused, a registration clerk employed by Niranjan’s Autoport. Between the 8th and the 14th of August 1998 the 2nd accused approached the Appellant, who agreed to issue a false Certificate of Fitness.

On 12th August 1998, the Licensing Officer issued the car a Certificate of Fitness based on a Certificate of Roadworthiness. The 1st accused then lodged an insurance claim. The insurance assessor, one Hiscox who discovered that at the time of the accident, the vehicle was unlicensed, and that the 1st accused’s driver’s licence had expired. He further discovered that the vehicle was still in a damaged state on the 18th of August, yet the Roadworthiness Certificate had been issued 6 days earlier. He reported the matter to the Road Transport Department. The matter was later reported to the police and all accused were charged.

The 1st accused admitted the facts and was convicted on Counts 1 and 5 and given a 9 month term of imprisonment suspended for 2 years. The 2nd and 4th accused also admitted the facts and were given the same sentence. On Count 5, the 1st accused was fined $50 in default 50 days imprisonment.

The court record then states that the hearing for the 2nd and 3rd accused was listed for 26th July 2000. However the court record shows that the 2nd accused pleaded guilty on all counts on the 9th of June. This may be a typing error.

The hearing was then much delayed by the political crisis and by the loss of the court file. The trial eventually commenced on 14th December 2001. The Appellant was represented by Mr Chand. The first prosecution witness was Uday Raj Singh of the Land Transport Authority. He said that he had received a complaint by one Hiscox about the circumstances in which the Certificate of Fitness had been issued for a vehicle AS312. He referred the complaint to the Motor Vehicles section and it was confirmed that the licence had expired. He then accompanied Transport Officer Taniela Tora to Tailevu to physically inspect the vehicle. He examined the application form and found the signature of the Appellant who is a Vehicle Examiner at the Authority. He interviewed him. The Appellant told him that he did inspect the vehicle on 12th August 1999 and that it had been brought in by the 2nd accused.

Under cross-examination he said that vehicle owners normally brought their vehicles in for inspection. They were dealt with by the Inspections Clerk who checked the Third Party Policy, vehicle particulars, and who collected the fees. The documents including the receipts were given back to the owner so that the vehicle could be examined by the Vehicle Examiner. The Vehicle Examiner’s report is then given back to the vehicle owner. The Inspections Clerk then prepares document for roadworthiness. He said that the Appellant could not sign a certificate for roadworthiness and that on the 8th of August 1998, the vehicle in question did not have a Certificate of Fitness.

PW2 Narendra Sharma was an employee of Niranjan’s Autoport in 1998. On 8th August 1998 he went to Dawasamu, Tailevu and saw the accident vehicle in a ditch. It was the 1st accused’s car. He was the 4th accused.

The prosecution then called Edward Harry Sami, the 2nd accused. The learned Magistrate however refused to allow him to give evidence against the Appellant because he said “an accused charged jointly with another person or persons is incompetent as a witness for the Prosecution.” He cited the cases of Payne (1872) LR CLR 349, Grant (1944) 2 ALL ER 311 and Sharrock (1948) 1 ALL ER 145. I will return to this ruling later in this judgment.

PW2 was Taniela Tora, the Transport Officer, Southern. He said that on 12th August 1998 a report was lodged about an accident vehicle which had not been brought to Valelevu (the Authority) for inspection. He inspected the vehicle on 24th August 1998 with PW1. He found the tyre road end to be broken, and the lights and fenders were broken. He concluded that the vehicle (which he inspected at Natovi) was not fit to be given a roadworthiness certificate.

PW3 was Isoa Tamani, General Manager, Operations at the Land Transport Authority. He said that there was an investigation about a private car AS312 in respect of which the Vehicle Examiner had carried out an inspection. The Vehicle Examiner was the Appellant. The witness said that he had acted on the Appellant’s report and had signed a Certificate of Roadworthiness, dated 12/08/98.

Under cross-examination the witness said that a random check on vehicles was sometimes carried out but denied that there was laxity in the system.

PW4 was PC 1952 Barma Nair of Tailevu Police Station. He accompanied the vehicle examiner PW2 to have the vehicle examined.

PW5 was Cpl. Ned Heritage who interviewed the Appellant. He tendered the interview. Unfortunately the interview is not included in the court record. I was able to find it however on the original court file. In that interview the Appellant admitted inspecting AS312 on the 12th of August 1998 but said that the vehicle was in a fit condition to allow the issuing of a roadworthiness certificate. He said that he knew that the vehicle had been involved in an accident and that the vehicle had incurred damages to the front and rear of the car. He said however that he was informed by “the fellow from Niranjan’s” that the accident had occurred not on the 8th of August, but on the 12th of August. He said that he had inspected the vehicle on the ramp at Valelevu and that he had inspected it at 8.15am on the 12th of August.

The next witness was DC Bijend Nand who tendered the Appellant’s charge statement. In that statement, the Appellant made the following statement:

“The said vehicle Reg. No. AS312 was brought to the Department of Road Transport by Edward working for Niranjan. Upon carrying out the inspection the said vehicle was road worthy so I issued with the inspection sheet.”

The prosecution then closed its case. The defence made a submission of no case to answer, which was rejected by the learned Magistrate.

The Appellant chose to give sworn evidence. He said that he inspected AS312 at Valelevu and that a salesman from Niranjan’s had brought the vehicle in. He said that if the vehicle had not been brought in, the Clerk, one Arvin Kumar, would not have issued the application nor received the fee.

Counsel for the defence then made closing submissions, saying that there was no evidence of a conspiracy on Count 1. He also said that the Appellant had not issued any certificate, and that it was Isoa Tamani who had issued the Certificate of Roadworthiness. Finally he said that there was insufficient evidence that the inspection sheet issued by the Appellant on the 12th of August, was false.

The prosecution made no closing submissions. The learned Magistrate delivered judgment on the 11th of November 2002. In the course of his judgment, he relied on facts which had not been disclosed during the trial, but had been outlined by the prosecution during the guilty plea hearing for the other accused persons.

The learned Magistrate in his judgment referred to the Appellant inspecting the vehicle twice, once on 12th of August, and the other on the 13th. In his caution statement the Appellant had said:

“Q: You told the Enforcement Officer Uday Singh that you inspected this vehicle after the accident. Is that true?

A: Yes that is true. I inspected it on the 13th of August 1998 at Tailevu.

Q: But the accident happened on 8th August 1998? What have you to say?

A: The owner must have repaired after the accident on 9/08/98 and brought it on 12/08/98. After that inspection the vehicle must have involved in accident and that was when I inspected it at Tailevu on 13/08/98.

Q: But according to Master Satendra Singh his vehicle involved in accident only once in the month of August 1998?

A: He must be telling lies because I heard that he wants to claim insurance for this accident.”

The learned Magistrate found that there was no reason to inspect the vehicle again on the 13th of August. He said-: “The accused should have brought one Edward who had brought the vehicle to Valelevu as his witness. If he had done that and prove his case, this court would be in a clear position to give credibility to his evidence. As the instant case now stand, there is some doubt to the statement he had given to the Police during the interview. The evidence he had given in Court does not help him either.”

He then convicted the Appellant on Counts 1 and 3. On 12th November 2002, he sentenced him to 9 months imprisonment suspended for 2 years.

I now turn to the grounds of appeal.

Count 3

Section 112 of the Penal Code provides:

“Any person who, being authorised or required by law to give any certificate touching any matter by virtue whereof the rights of any person may be prejudicially affected, gives a certificate which is, to his knowledge, false in any material particular, is guilty of a misdemeanour.”

The section is part of Division II of the Penal Code, entitled: “Offences against Administration of Lawful Authority” and of Chapter XI entitled “Corruption and the Abuse of Office.” The offence has the following elements:

1)	The accused was authorised by law;
2)	To give a certificate;
3)	Whereby the rights of any person could be prejudicially affected;
4)	The accused gave;
5)	A certificate;
6)	Which is false;
7)	And which he knows to be false;
8)	In a material particular.

The first ground of appeal in respect of this conviction is that the Appellant was not authorised by law to issue a certificate. Counsel submits that all that he could issue was an inspection sheet, which was not a certificate.

The Penal Code does not define “certificate.” However the section itself requires proof that the accused was authorised by law to issue any certificate which could prejudice a person’s rights. What makes a certificate, a certificate for the purpose of section 112, is therefore evidence that the accused was authorised by some law to certify some fact, which could affect a person’s rights. A vehicle inspection sheet, which records the defects of a vehicle, could be a certificate because a finding of defects might affect a person’s right to register as roadworthy, his vehicle. However the duty to inspect and to issue the inspection sheet, must be derived from the law. There was no evidence of such authority at the trial. PW1 simply gave evidence that the Appellant was employed as a vehicle examiner. Is this position created by statute or by subordinate legislation? What are the duties of the examiner? Is the signing of the inspection sheet one of them? The court record does not provide the answers to any of these questions. Nor do we know the legal status of the Certificate of Fitness, which is issued apparently on the basis of the inspection sheet. It was the prosecution’s duty to show the court either by evidence, or by reference to the Traffic Act (which was then in force) the legal authority given to vehicle examiners to issue inspection sheets.

In this case, this problem is not fatal, because a quick perusal of the Traffic Act shows that an “authorised examiner” may under section 47(4) examine any vehicle and shall notify the owner of any defects requiring repairs or alterations “in writing and until such repairs, alterations or additions have been completed, it shall be an offence for any person to use such vehicle on a public road…”

Thus although there was a failure to refer to this element of the offence, such an omission on its own could have led to the application of the proviso that despite an error of law, there had been no substantial miscarriage of justice.

However, the failure to consider this element of the offence was accompanied by a failure to refer to the burden and standard of proof.

The burden of proof

Nowhere in the summing up did the learned Magistrate refer to the duty on the prosecution to prove guilt on each count, beyond reasonable doubt. Further, on a reading of the judgment, I am left with a distinct impression that the learned Magistrate relied on facts outlined by the prosecutor during the guilty pleas, which matters were not led in evidence and were certainly not proven beyond reasonable doubt. Finally, he made a reference to having a “doubt” about the defence evidence as a result of the accused failing to call a witness to support his defence.

Counsel for the State agreed that the learned Magistrate had failed to direct himself on the burden and standard of proof, but argued that he was entitled to accept the prosecution facts as outlined because they showed a conspiracy. He relied on R –v- Mattison (1990) Crim. L.R. 117 and Lunnon –v- R (1989) 88 Cr. App. R. 71 to submit that the guilty plea of an alleged conspirator may be adduced in evidence at the trial of an accused. However both cases turned upon the construction of sections 74 and 78(1) of the Police and Criminal Evidence Act 1984 (U.K.) and in both cases the prosecution had sought to admit, not the facts of the case, but the charges to which pleas of guilty had been rendered. In this case, the learned Magistrate went beyond the consideration of the pleas of guilty to conspiracy, to referring to, and it appears, accepting, the facts of the case in considering the Appellant’s guilt. Those facts had to be proved by the prosecution. The Appellant had in no way accepted those facts in the course of trial, nor, indeed had evidence been led on those facts.

In the circumstances I conclude that the learned Magistrate not only failed to direct himself on the burden of proof, but that he appears to have treated the case as if the burden to prove innocence was on the Appellant. It follows that this ground of appeal succeeds.

The conspiracy

State counsel very fairly conceded that there was no evidence before the learned Magistrate of a conspiracy and that the conviction on Count 1 therefore could not stand.

The learned Magistrate refused to allow the other accused to give evidence against the Appellant, saying that they were “incompetent witnesses.” In coming to this finding he was in error. All accused persons had pleaded guilty before the trial commenced and had been dealt with. In R –v- Boal and Cordrey(1965) 1 QB 402 and R –v- Conti 58 Cr. App. R. 387, it was held that a defendant who has pleaded guilty is both a competent and compellable witness for the accused. In R –v- Turner (B.J.) 61 Cr. App. R. 67, the English Court of Appeal said that the practice of accepting the competence of accomplices as witnesses for the Crown had been followed since the 17th century and that the discretion to exclude such evidence might be exercised where an accomplice was yet to be sentenced, there being “an obvious and powerful inducement for him to ingratiate himself with the prosecution and the court…” (per Lawton L.J. at p.78.)

For this reason, a court may decide to sentence an accomplice before he/she gives evidence for the prosecution so that there is no such continuing inducement, despite the modern practice to sentence all offenders together at the end of the trial to ensure that all facts are known before sentences are imposed. (Chan Wai-Keung –v- R (1995) 2 Cr. App. R. 194).

The other accused persons were both competent witnesses for the prosecution. Counsel for the Appellant concedes this. If they had been allowed to give evidence, and if they had given evidence of a conspiracy with the Appellant, the Court could have convicted on Count 1 if the evidence was credible and reliable after the appropriate corroboration warnings. However, that evidence was wrongly excluded, and in its absence there was no evidence of a conspiracy at all.

Ground (c) therefore succeeds.

The prosecution evidence

Grounds (d) and (e) state that the learned Magistrate put too much weight on the prosecution evidence and took into account extraneous matters. There was clearly evidence on Count 3, on which the learned Magistrate might have convicted. The Insurance claim form dated 14th August 1998 referred to an accident on the 8th of August 1998. It referred to no second accident on the 12th of August. The vehicle inspection sheet was signed by the Appellant on the 12th of August and another was signed by him on the 13th of August. According to the form, there was no accident on the 13th as claimed by the Appellant. However, it is not clear who tendered the insurance claim form, and on what basis it was tendered.

The Appellant also made admissions in his interview notes to the police that he conducted two inspections, one on the 12th of August when one Edward brought the vehicle in for inspection, and the other on the 13th of August at Tailevu when he found the vehicle damaged. Who requested the second inspection? Was it to verify the insurance claim form as to the damage caused and as to the cause of the accident as recorded in the claim form? The learned Magistrate clearly concluded that it was. He was entitled to thus conclude, at least as to the falsity of the inspection sheet, having heard the Appellant’s evidence.

However, for the reasons I have already given, the convictions are unsafe and must be quashed. It follows that there is no need to consider the appeal against sentence.

Re-trial

This is a very old case, and for some reason, the charges were not laid until June 2000. It took a further 2 years to conclude the trial. If this was a case involving minor charges I would not order a re-trial. However, the allegations are very serious indeed, involving as they do, alleged misconduct in a public office. In particular, the Appellant was originally charged with a conspiracy on Count 1, and all his co-defendants have been dealt with. Further, those co-defendants were evidently willing to give evidence at the trial.

In all the circumstances I consider that justice requires a re-hearing before another Magistrate.

For these reasons I order a re-trial on both counts. This appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
17th April 2003