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Fiji Independent Commission Against Corruption v Matalau [2011] FJHC 291; HAC019.2010 (17 May 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 019 OF 2010

BETWEEN:

FIJI INDEPENDENT COMMISSION
AGAINST CORRUPTION
PROSECUTION

AND:

1. SEMI MATALAU
2. JAI SURENDRA PRAKASH SHARMA

ACCUSED PERSONS

Counsel: Mr. Sanjeewa Dissanayake and Ms. Pulewai for FICAC
Mr. A. Kohli for both Accused Persons

Date of Hearing: 16th May, 2011
Date of Ruling: 17th May, 2011

RULING

1. First Accused makes an application under section 231 of the Criminal Procedure Decree 2009. Section 231 provides:

"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, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence."

2. The Court of Appeal in State v. Tuisawau Criminal Appeal No. 14 of 1990 said:

"In order to come to the conclusion that there was some evidence direct or circumstantial, and irrespective of its weight, credibility or its tenuous nature it must be shown that the evidence in question is relevant, admissible and is in totality inculpatory of the accused. This means that the evidence in its totality must at least touch on all the essential ingredients of the offence."

3. Referring to "No evidence" mentioned in the section 231 of the Criminal Procedure Decree in case of State v. Ratu Inoke Takiveikata Justice Goundar said:

"The phrase of no evidence has been interpreted to mean that there is no evidence on an essential element of the charged offence (Sisa Kalisoqo v. State Criminal Appeal No. 52 of 1984). If there is some evidence on the essential elements of the charged offence, the application for a no case to answer cannot succeed. The credibility, reliability and weight are matters for the assessors and not for the trial Judge to consider at a no case to answer stage."

4. The charge against the 1st Accused.

First Count

Statement of Offence (a)

OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code Cap 17.

Particulars of the Offence (b)

Semi Matalau between the 06th day of October 2004 and the 30th day of November 2006 at Labasa in the Northern Division being employed in the public service as a Divisional Planning Officer in the Commissioner Northern Office and being charged with the allocation of contracts by virtue of such employment corruptly received a benefit namely the repayment of Merchant Finance and Investment Company Limited loan "MC 15816115 Motor" for himself from Jai Surendra Prakash Sharma of Babasiga Hire Services and Babasiga Spares and Hardware Services on account of having awarded Road upgrading Contracts to said Jai Surendra Prakash Sharma by him in the discharge of the duties of his office.

5. The elements of the offence are:

1. The accused
2. Being employed in the public service
3. Corruptly received
4. Any property or benefit for himself or for others
5. On account for some thing already done or to be done afterwards
6. In the discharge of his official duties.
   

6. The counsel for 1st Accused submitted that there is no evidence whatsoever that the contracts were signed by the 1st Accused. In the agreed facts filed in court, parties have agreed that at the Tender Board meeting chaired by the 1st Accused which was held on 6/10/2004, the board awarded the contracts for the upgrading of the Saroni's Farm Road. (Agreed facts No. 89, 90, and 93). The Tender Board has awarded the contracts which was chaired by the 1st Accused according to the said agreed facts. Signing of the contract is subsequent to the awarding of the contract.

7. Counsel for the 1st Accused further submitted that in his evidence, the investigating officer Anil Chand said in evidence, that the 1st Accused left the decision to award tender to the sitting members of the board. Whether what weight should be given to that piece of evidence is a matter for assessors as a matter of fact, or whether that is admissible on the basis of that it is his opinion is a matter to be decided at the summing up stage and not at this stage.

8. However, to decide whether the 1st Accused acted corruptly or not, that piece of evidence cannot be considered in isolation of the other evidence.

9. Therefore, I find that the 1st Accused has a case to answer and he is therefore put to his defence.

Priyantha Fernando
Judge