IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0111 OF 2005

BETWEEN:

NARESH CHAND MAHARAJ
Appellant

AND:

STATE
Respondent

Counsel: Mr. O’Driscoll – for the Appellant
Ms H. Tabete – for the State

Date of Hearing/Decision: 23rd January, 2006

EXTEMPORÉ DECISION

Introduction

This is an Extemporé Decision given at the conclusion of an appeal and as such I reserve the right to perfect the judgment once it has been transcribed for me.

Background

On the 26th of October, 2000 the appellant was charged with obtaining money by false pretences contrary to Section 309(a) of the Penal Code, Cap. 17.

The particulars of the offence were that the appellant between the 11th of November, 1999 and the 25th of February, 2000 at Suva with intent to defraud obtained $5,700.00 from Muni Nandan s/o of Latchman Sami by falsely pretending that he was in a position to arrange his family’s migration to Australia.

The appellant was convicted of the offence on the 28th of January, 2005 and thereafter received a sentence of 18 months imprisonment suspended for 2 years. An order was made that compensation be paid to the complainant in the sum of $5,700.00 in full within 14 days and in default 12 months imprisonment.

The appellant now appeals against conviction and sentence on the grounds stated in his petition of appeal. He claims:

(i)	That the learned Magistrate erred in law and misdirected herself on the evidence by relying on the credibility of the prosecution witnesses when clearly their credibility was questionable;

(ii)	That the learned Magistrate erred and misdirected herself on the evidence by not fully considering the case put forward by the defence; and

(iii)	That the sentence imposed as harsh and excessive in all the circumstances of the matter.

The Defence Case

As I apprehend the thrust of the defence appeal it is that the learned Magistrate did not demonstrate by her judgment that she properly weighed the evidence in accordance with the standard and burden of proof for a criminal trial.

In respect of sentence I apprehend the argument is that the penalty was excessive and unduly harsh when compared with similar offending particularly described in the case of Sashi Karan v The State, Magistrate’s Court Criminal Case No. 2087 of 1991.

By way of reply the State endorses and supports that the learned Magistrate’s judgment and say there is no basis upon which this appeal court should interfere with the findings of that first instance court.

In respect of sentence learned counsel says that the sentence was not excessive or unduly harsh for a fraud offence.

Decision

What the law requires on a charge of false pretences is readily ascertainable from the section.

False Pretences

309	Any person who by any false pretence-

(a)	with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to him or to any other person for the use or benefit or on account of himself or any other person; or

(b)	with intent to defraud or injure any other person fraudulently causes or induces any other person-

(i)	to execute, make, accept, endorse or destroy the whole or any part of any valuable security; or

(ii)	to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security,

is guilty of a misdemeanour, and is liable to imprisonment for five years.

To establish this charge, the State must prove three elements.

1.	First, that the accused obtained the possession, ownership or benefit of any chattel, money or valuable security (or got any chattel, money or valuable security delivered to a third party).

2.	Second, that the accused obtained that possession, ownership or benefit by means of a “false pretence”. That is, that there is a direct link between the use of a false pretence and the obtaining of the possession, ownership or benefit. There are three stages to analyzing whether there has been a “false pretence”. The State needs to prove:

(i)	That there was a “representation”, that is, a statement about a matter of present, or past fact, or a statement about a future event, or a statement about an existing intention, opinion, belief, knowledge or some other state of mind;

(ii)	That the representation was “false”. It will be a false representation if the person making it knew it was false. In short, that the statement was a deliberate lie;

(iii)	That the false representation was made with the intention of inducing the person to whom it was made to act on it.

3.	Third, that the false pretence was made “with intent to defraud”. To defraud someone is to deprive that person of something by dishonestly causing that person to believe something that is not true. A person does something dishonestly if he or she does it deliberately and knowing that it is in breach of his or her legal obligations. Even if this is established, if it is claimed that D nevertheless believed that he was “justified” in departing from such a legal obligation, or was “entitled” to so act, it must be shown that D did not honestly believe this.

In summary, the State must prove that the accused without justification or entitlement told a deliberate lie, intending that the complainant would believe it and thereby hand over or deliver something which he or she would not have done if the truth had been known.

Alongside that law the task of the learned Magistrate at first instance is to review the evidence and draw fair inferences from that evidence. Then the judge must demonstrate in her judgment the reasons for her decision that the Prosecution have convinced her that the charges have been proved beyond reasonable doubt. That is not to say that a detailed recollection of the evidential reasons is required. Summary justice is far too busy to require that. What is needed is an adequate summary of the reasons so that they communicate to the reader a clear understanding of why the judgment was made.

Essentially the conviction appeal falls for consideration on two paragraphs in the learned Magistrate’s four page judgment. Those paragraphs are contained on pages 3 and 4.

In those passages the learned Magistrate makes findings of credibility. It was no doubt her intention to emphasize that the prosecution witnesses were to be believed but the defence witnesses could be discarded. This shorthand method of analyzing evidence is of great use in summary proceedings generally especially when there is a sharp distinction between the two theories of the case. However, it is a method that must be carefully applied in some circumstances particularly in trials involving positive defences. 

The subject paragraphs applaud the evidence of the first prosecution witness, the complainant who also happened to be a police officer. The learned Magistrate found him to be credible and accepted his version of events.

When considering the evidence of the defence witnesses the learned Magistrate had a “feeling” that the purpose of the evidence was to distract the court from focussing on the main issues relating to the accused in his exchanges with the first prosecution witness. Thereafter at page 4 the learned Magistrate says to amplify those sentiments:

“His evidence under oath seen in light of the interview was consistent and yet he was blaming other for taking the money when according to the complainant the exchange of money was with him although PW2 may have been a carrier of some of the money. The evidence is clear that the arrangement was between the complainant and the accused. Further the accused throughout the case displayed behaviour and gave explanations that were not credible”.

The passage to which I have referred contains very generalized statements making reference to the specific testimony given by the defence witness without the benefit of conclusions drawn from the testimony.

As such in my view, the general propositions made by the learned Magistrate in her judgment are either unsupportable by the testimony as they have not been enunciated or are at best; unclear.

When I review the evidence I find a number of unresolved inconsistencies with a generalized finding on credibility.

At page 15 of the Magistrate’s Notes there is a sequence of questions starting “The $300.00 and $190.00 you gave him – do you have any record of it?” This portion demonstrates that the complainant himself knew that there was some other character involved who may have been a person that the accused had to report to.

This was a clear and essential element of the defence that the accused was under instruction from his boss and was not the principle. This testimony was not addressed by the learned Magistrate.

At page 18 of the learned Magistrate’s notes Prosecution Witness 2 clearly gives testimony that he too knew of this ‘boss’ or ‘employer’ of the accused known as Daniel as he had handed that person money. Again this was not addressed in the decision.

At page 21 of the Magistrate’s notes Prosecution Witness 3 again in testimony said that he knew of this person Daniel and his involvement. This witness indicated that Daniel had been interviewed in relation to his part in this fraud.

At page 29 of the Magistrate’s notes Prosecution Witness 4 identifies that Daniel had been charged with forgery and that he was indeed the accused appellant’s former employer.

At page 31 of the Magistrate’s notes Defence Witness 1 said he had worked with this person Daniel after the accused had left and knew that Daniel was processing visa applications. Further he knew that the accused appellant was an employee of Daniel.

These facts when taken into consideration with the finding by the learned Magistrate at page 4 that PW2 delivered some of the money or exhibits to his ‘Daniel’ (page 18 of the record) makes the defence case plausible. The defence explanation that the accused was merely an employee and in fact was accepting money and taking instructions on behalf of this person Daniel was not properly addressed in the decision.

Now it may be that this accused appellant might be convicted as a party to the offence of false pretences. However, that was not the way in which the State’s case was brought against him or pursued in court. Indeed in respect of the defence that he was simply acting as an employee I can’t see in the record where that defence was challenged in cross-examination by the State.

That is an important feature as in the absence of cross-examination by the State the learned Magistrate is often left with very little option but to accept the defence evidence as it was unchallenged. If the defence case is to be rejected in those circumstances some clear reasons must be given.

In terms of making my finding on this appeal I bear in mind the words of Viscount Simmons in Ben Max v Austin Motor Company Limited [1955] 1 ALL ER 326 where his Lordship said:

“The procedure on an appeal from a judge sitting without a jury are to be given by the rule applicable to a motion for a new trial after a verdict of the jury. In such a case it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witness comes into question but with full liberty to draw its own inference from the facts proved admitted”.

His Lordship went on to say:

“This does not mean that an appellate court should likely differ from the findings of a trial judge on a question of fact and I would say that it would be difficult for it to do so where the findings turn solely on the credibility of witnesses but I cannot help thinking that some confusion may have arisen from the failure to distinguish between a finding of specific fact and a finding of fact which is really an inference from the facts specifically found or as it is sometimes being said between perception and the evaluation of facts”.

The learned Magistrate while gaining impressions from the evidence and announcing a finding of credibility failed, in my view, to properly evaluate the evidence having particular regard to the burden and onus of proof in a criminal trial for false pretence. The judgment does not compare the evidence with the requirements of proof to which I have earlier referred. This was an error and it does indeed entitle the appellant to the granting of his appeal in respect of conviction.

Having made that finding it is unnecessary for me to dwell on the sentencing appeal and I now move to my conclusion.

Conclusion

The appeal is granted. The conviction entered by the learned Magistrate on the 28th of January, 2005 is quashed. I order a re-trial before another Magistrate.

I have heard further submissions from counsel regarding the restitution made to the complainant of $5,700.00.

At this time I do not make any order. However, I reserve leave to the appellant through his counsel to make an application to me for that money to be repaid on 7 days notice. That leave is left open until the 1st of April 2006 and thereafter expires.

Gerard Winter
JUDGE

At Suva
23rd January, 2006