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Fiji Independent Commission Against Corruption v Matalau [2011] FJHC 296; HAC019.2010 (25 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:

SEMI MATALAU
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: 2nd – 6th, 9th – 13th, 16th – 20th and 23rd May 2011
Date of Summing Up: 25th May 2011

SUMMING UP

[1] Madam and Gentlemen Assessors,

It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused persons are guilty or not guilty.

[3] The Counsels for the Prosecution and Defence made submissions to you about the facts of this case. That is their duty as Prosecuting Counsel and Defence Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

[4] You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me, but I can tell you that they will carry great weight with me when I deliver my judgment.

[5] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.

[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.

[7] Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom. You must disregard whatever you have heard about this case or about the accused persons in this case, outside this courtroom.

[8] Your duty is to find the facts based on the evidence apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

[9] You have the information before you.

[10] In this case Semi Matalau and Jai Surendra Prakash Sharma are charged as follows:

(1) Semi Matalau with one count of Official Corruption, contrary to section 106(a) of the Penal Code Cap. 17.

(2) Jai Surendra Prakash Sharma with one count of Official Corruption, contrary to section 106(b) of the Penal Code Cap. 17.

[11] You are required to make separate assessment of the evidence as it relates to each of the elements of the charges against each accused person and the prosecution has to prove each of the elements in each count beyond reasonable doubt.

Elements of the offences

[12] The 1st Accused Semi Matalau is charged under section 106(a) of the Penal Code Cap. 17. In terms of the section 106(a) and of the particulars of offence given in the information, the elements of offence in count No. 1 which the prosecution has to prove beyond reasonable doubt are:

(1) The 1st Accused Semi Matalau

(2) Being employed in the Public Service and being charged with the allocation of contracts by virtue of such employment

(3) Corruptly received

(4) A benefit namely the repayment of Merchant Finance and Investment Company Ltd loan "MC 15816115 Motor" for himself

(5) On account of having awarded Road upgrading Contracts to Jai Surendra Prakash Sharma

(6) In discharging of his official duties.

[13] You have the written agreed fact before you. Further you have the agreed bundle of documents before you. Those facts and documents are agreed by both parties, and not in dispute. Therefore you may consider those as lead in evidence without dispute or challenge in court.

[14] The above elements of the offence No. 1, 2, 4 and 6 are not in dispute. It is agreed that 1st Accused was employed in public service during the relevant period (A F No 2 and 3). It is agreed that he was charged with the performance of any official duty, that is the allocation of contracts (AF 90, 91, 93). It is agreed that he benefited, namely the repayment of Merchant Finance loan MC 15816115 by 2nd Accused (AF 31 – 81). It is agreed the 1st Accused chaired the board meeting which awarded the two relevant tenders (AF 89 – 93).

[15] Therefore the only remaining element the prosecution has to prove beyond reasonable doubt against the 1st Accused is the 3rd element, that he received the said benefit corruptly.

[16] The 2nd Accused Jai Surendra Prakash is charged under section 106(b) of the Penal Code Cap 17. In terms of section 106(b) and of the particulars of offence given in the information, the elements of offence in count No. 2 which the prosecution has to prove beyond reasonable doubt are:

(1) That Jai Surendra Prakash Sharma on the dates alleged

(2) Corruptly gave

(3) Semi Matalau, a person employed in public service

(4) A benefit, namely the repayment of Merchant Finance and Investment Company Ltd loan "MC 5816115 Motor"

(5) On account of having being awarded road upgrading contracts to him

(6) In the discharge of his official duties.

[17] On the agreed facts submitted and especially on the agreed facts mentioned above when I discussed the elements in count No. 1, the only remaining element which is in dispute that the prosecution has to prove beyond reasonable doubt in count No. 2 against 2nd Accused is, that the 2nd element, that he corruptly gave.

[18] As the assessors the two questions you are to ask are: Did Semi Matalau corruptly receive those payments? Did Jai Surendra Prakash Sharma corruptly gave those payments? In this regard it is important that I give directions on the meaning of the word corruptly.

[19] "Corruptly" does not mean dishonesty. It means purposefully doing an act which the law forbids as tending to corrupt. It means purposefully doing an act which the law forbids.

[20] In the context of section 106(a) of the Penal Code Cap 17, corruptly must mean receiving payments in cash and property purposefully, knowing that, in doing so, the recipient has done something or will do something or both, in his official capacity that is unlawful and or illegal, in favour of the giver.

[21] Similarly in the context of section 106(b) of the Penal Code Cap 17, corruptly must mean giving payments in cash and property purposefully, knowing that in doing so the recipient of that giving has done something, or will do some thing or both, in his official capacity, that is unlawful and or illegal in the favour of the giver.

[22] A person's intentions are locked up in his mind. The intent cannot be physically observed. However, the intent can be proved by what he said or told the others, or it can be inferred from his conduct prior to, during and subsequent to the commission of the offence.

[23] To prove the elements of the offences, especially to prove that the accused persons have acted corruptly, the prosecution relies on circumstantial evidence as well. As a matter of law, may I now direct you on circumstantial evidence.

[24] In circumstantial evidence, you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events, that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.

[25] I cite the following situation as an example for circumstantial evidence. In the night you go to your neighbor John's house to meet him. You see John lying fallen inside his house. At the same time another neighbor 'X' has seen 'Y' running out of John's house with an object in his hand. Here you don't see 'Y' committing any act on John. The two independent things that you and 'X' saw, were the circumstances of the given situation. You connect the two things that you and 'X' saw and draw certain inferences. An inference that you may draw would be, that 'Y' caused the injury on John. In drawing that inference, you must make sure that it is the only inference that could be drawn, and no other inferences that could have been possibly drawn from the said circumstances. That should also be the inescapable inference that could be drawn against 'Y' in the circumstances.

[26] Further, in evidence, one witness may prove one thing and another witness may prove another. None of those things separately alone may be sufficient to establish guilt, but taken together may lead to the conclusion that the accused committed the crime.

[27] Therefore you must consider all direct evidence as well as circumstantial evidence.

[28] It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the accused person having committed the crime. To find him guilty you must be satisfied so as to feel sure, that the inference of guilt is the only rational conclusion that could be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt, that the accused person committed the crime.

[29] Before you can draw any reasonable inferences, you must first be satisfied beyond reasonable doubt, that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven, is credible and truthful.

The Evidence

[30] First witness for the Prosecution was Iqbal Hussain who worked as a Credit Officer to Merchant Finance Ltd. On the request of the 2nd Accused on 12/08/2004, he has prepared the P6 loan application for the 1st Accused. 2nd Accused has brought all relevant documents like salary slips, bank statements, driving licence copy, photograph of the 1st accused with the application. Further a quotation from Drive Smart Ltd for a Mitsubishi Pajero vehicle was also brought by the 2nd Accused with the application.

[31] On approval of the application P24 cheque from Merchant Finance dated 27/8/2004 was issued to Drive Smart Ltd, for the above vehicle on behalf of the 1st Accused. His evidence was that the initial deposit of $17,000.00 as well as the payments of installments on receipt No's P50 – P53 and P55 – P74 for the repayment of loan were paid to Merchant Finance Limited by the 2nd Accused on behalf of the 1st Accused. The corresponding cheques which were issued from the 2nd Accused bank account were marked and produced.

[32] In cross-examination, he said that the 2nd Accused was a good customer of Merchant Finance Ltd in 2004. Loan installments of the 1st Accused was paid by the 2nd Accused from his Bank of Baroda cheques he said. 2nd Accused has not paid a single installment payment by cash but by his cheques. 2nd Accused or the 1st Accused had never come and told him to keep this to himself or not to disclose this fact to any one. He agreed answering a question that the last installment payment of $6,272.11 was a cash receipt.

[33] The 2nd witness called to give evidence for the prosecution was Sazida Sabnam Nisha who works as a Collection Officer for Merchant Finance Limited, Labasa. She had been a cashier before. She identified the receipts on which she received on the loan account No. MC 16115 of the 1st Accused. Her evidence was she received money either from the 2nd Accused, or sometimes his wife or from his employee.

[34] In cross examination, she said the last installment payment of $6,272.11 had been paid in Suva Office, and not in Labasa Office. Further, she said that, at no time the 2nd Accused, his wife or employees who paid the installments told her not to disclose this account to anybody.

[35] Next witness was Priscilla Ritova of Merchant Finance Ltd. She said that loan account No. MC 15816115 and MC 16115 is the same. She identified the receipts she prepared for the payments to account No. 16115.

[36] Next witness was Vinod Kamal, a Bank Officer from the Bank of Baroda. He said that he was attached to the Bank of Baroda, Labasa branch and that he knew the 2nd Accused and that he did not know the 1st Accused. He gave details of the accounts of the 2nd Accused in the Labasa branch. He identified bank statements P7, P8 and P9, all of them from accounts belonged to 2nd Accused. Further he identified the P21 debit voucher dated 26/8/2004 and P22 and P23 bankers checks. He identified the cheques issued from the 2nd Accused's accounts.

[37] Prosecution then called Joy Trilotma Khan, Senior Accounts Officer, Ministry of Finance to give evidence. She had been in the Government Service for 20 years and her qualification and experience in the Accounts Department in Government Service was not questioned. She testified about the tender procedures followed in 2004. Successful bidder will enter into a contract with the Commissioner Northern she said. Once the contract is signed accounts section will be advised by the Planning Unit to raise the LPO (Local Purchase Order). When the work is completed, invoice and other related documents are forwarded to Accounts Section for payment she said. She further said, if there is no certification by Commissioner Northern, Divisional Secretary or Divisional Planning Officer, payment will not be made. The document marked as P91, the contract between the Government and Babasiga Hire Services dated 27/5/05 was produced without objection by the witnesses. Date of LPO is 31st of May 2005. P15 invoice was raised by Babasiga Hire Services on 1/6/05 with a minute of the 1st Accused stating the road has constructed to expect standard but with extra work by the contractor. By that minute, 1st Accused had approved payment. Subsequent to this minute of 1st Accused, payment had been made to the 2nd Accused. She identified the cheque which she signed. If the certificate of the 1st Accused in P15 was not there in P15, invoice, payment would not have made to Saroni Farm Road upgrading for the 2nd Accused she said.

[38] P14 (LPO) was issued subsequent to the signing of contract 91. She said after the LPO was issued, according to the contract and P15 invoice the upgrading of the road had taken one day. P92, the contract for the construction of Korolailai crossing was produced without objection.

[39] In cross-examination she said, that a contractor should only start the job when he is issued with the local purchase order. When she was asked whether the Commissioner had the power to tell a contractor to start work, once the decision is taken to award a tender, she said that the Commissioner will have to follow the law, Financial Act and instructions, and therefore the Commissioner cannot ask a contractor to start the work without following the rules stipulated in regulations. The witness reiterated that according to the rules, work should start only once the LPO is issued.

[40] Further, she said that then Commissioner would be the best person to answer the question as to whether the Commissioner authorized the contractor to start the work before LPO was done.

[41] In re-examination she said, that the tenders would not be called if the projects are not to be carried out that year and if funds are not allocated.

[42] The next witness was Jovesa Vocea who held the post of Divisional Secretary Northern in year 2004. Also he was the Secretary to the Tender Board. He was a member of the Divisional Tender Board meeting held on 6/10/2004, minutes of which was marked as P10. He has kept the minutes as the secretary of the Tender Board. He said that the 1st Accused was not a permanent member of the Tender Board, but on 6/10/2004 as shown in P10, 1st Accused acted as the Chairman in the absence of the Commissioner. 1st Accused has acted for Commissioner as Chairman Tender Board in the absence of Commissioner on some other occasions as well. He explained to you about his role as the secretary. He said that it is the duty of the secretary to receive tenders. When he was questioned as to how they acknowledge a receipt of a tender he said. "Acknowledged by writing to the companies. When a tender is received we put the stamp and record in the register. Those tenders are gone to the tender box. When the tender is closed it is opened in front of the tender board. Then we do the stamping and the registration is done".

[43] He said the tender quotation P13 submitted by Babasiga Hire Services has come through the tender box and it is stamped. He further said tenders should be addressed to either Chairman of the Tender Board or The Secretary of the Board.

[44] On the minutes of the Tender Board on 6/10/04 (P10) two contracts, namely upgrading of Saroni Farm Road and Korolailai crossing were awarded to the 2nd Accused. The relevant quotation P11 for Saroni Farm Road dated 1/10/2010 was addressed to 1st Accused as the Divisional Planning Officer then.

[45] P93, the plan was submitted to Court without objection. He said P93 plan was submitted along with the P11 quotation. P94 and P95 had been the competitive quotations furnished for determination by Tender Board which were from Mohd Fizal and Tasheems Earth Moving and Civil Engineering Contractor. Both of them were addressed to the Divisional Planning Officer 1st Accused. Likewise P12 was the quotation submitted by 2nd Accused for Korolailai crossing and the competitive quotations were P96 and P97 from the same companies mentioned above. P13 was shown to the witness and he agreed that only on P13 the Tender Board stamp is affixed and not on P11, P12, P94 – P97. P13 was a quotation for a separate project. Witness said the quotations submitted for the Saroni Farm Road and Korolailai crossing does not have the stamp of the Board.

[46] In the loan application (P6) submitted by the 1st Accused to Merchant Finance Ltd., this witness Joe Vocea's name appears as a personal reference. Witness said that he cannot recall as it was in 2004, whether he gave a personal reference to 1st Accused. He further said that he had no knowledge whether the loan has been paid off. He further said that the 1st Accused did not inform him whether he was paying the installments.

[47] In cross-examination, he said that the Divisional Tender Board consists of educated and reputed persons in Fiji, who are supposed to be independent and not supposed to be influenced by any body. On questioning by the defence counsel he explained about close tenders and open tenders and their procedures. He said in close tenders, they are advertised in newspaper. The tenders ultimately come to a sealed tender box which will be opened in front of Board members and sometimes in front of contractors who submitted the quotations for transparency. Then they are stamped initialed and a recording kept in a registry.

[48] In open tenders, it is not advertised in newspapers he said. The quotation will be called from reputed contractors. The Commissioner decides from which contractors to call for open tenders out of the contractors who are registered, he said. The quotations need not be addressed to Commissioner. They can be addressed to Divisional Planning Officer, Senior Agricultural Officer etc., he said. Ultimately, it comes to the Secretary Tender Board.

[49] He said tenders called for Saroni's Farm Road were open tenders and finally it came to the Tender Board on 6/10/2004. Meeting held on 6/10/2004 had been a scheduled meeting and not an urgent meeting. 1st Accused had not been a permanent member of Tender Board, but on 6/10/2004, he has deputized the Commissioner. Further he said, that the 1st Accused happened to come to the meeting, as the Commissioner was going to Suva. At the Tender Board he said that members deliborate on tenders, contractor, needs of the community, and then award the tender, and one person cannot take a decision. When the witnesses attention was drawn to paragraph 8 of the P10, he said that he forgot to recall what transpired for the board to make that decision. He said that he can recall the concern of the board on what is mention in paragraph 8 of P10.

[50] He said that P13 was one of the sealed tenders which were advertised on papers and therefore the stamp if affixed and that P11, P95, P96, P97 are of open tenders which was not advertised. His evidence was that open tenders will not go to the tender box which is sealed, but irrespectively who brings the quotations, it should come to the secretary who will not divulge it to anybody else to keep confidentiality, and that in this case he was the secretary.

[51] Explaining to Court, the witness said, if a contract is awarded by the board, to extend the work for the following year, is for the board to decide. But if a contract is not being awarded, it is the Commissioner who has the discretion as to whether the project can be carried forwarded to the following year. Witness further said that Government of Fiji will not enter into a contract with a contractor unless funds are available. Further he said, that the correct procedure is to start the work when the contract is awarded by the Tender Board and when the LPO is raised.

[52] Witness answering the question by Defence explained about the types of roads. Answering questions on the quotations in P19 in 2001 he said, no Tender Board stamp was affixed as they were open tenders and however, they were taken into consideration. The witness was not the Secretary of the Tender Board in 2001.

[53] In re-examination, he said that it's the discretion of the chairman to call for open tenders. He said that the stamp is affixed only on quotations for closed tenders and not on open tenders. The witness admitted that it is for the PWD to decide on the PWD roads. The rest of the road, Agricultural Officers are the ones who are experts. The witness said that he is not an expert but on the technical advise on professionals they judge the kind of roads.

[54] On referring to the paragraph 8 of the p10 about the District Officer, Macuata, he said, however P12, P96 and P97 quotations were addressed to the same person.

[55] The next witness for the prosecution was Yunus Khan who is a businessman. He is the brother-in-law of Mohammed Tasheem who is now in New Zealand. Mohammed Tasheem had a business named Tasheems Earth Moving he said. The witness had worked under Tasheem as a sub contractor in years 2000 – 2004. To run his business Tasheem had had excavators trucks and vans. Tasheem had gone to New Zealand in year 2005. The quotations marked P95 and P97 were shown to the witness and he said the signatures appear in both documents are very similar to Tasheem's signature. When he was asked whether these signatures are of Mohammed Tasheem's he said 'seems not'. The witness said that he has seen Tasheem's signature during the period he worked under Tasheem and possibly he can identify Tasheem's signature.

[56] In cross-examination, he said that the signatures in the documents shown to him are very close to Tasheem's signature and the letter heads looks like of the company of Tasheem. Explaining the position in re-examination, he said the signature seems not of Tasheems.

[57] The next witness was Mohammed Fizal, a businessman who does government contracts. He does upgrading of roads with PWD. In year 2003, he said that he had only one truck, and the name of business was Mohammed Fizal. He had started the business with cutting sugar cane and after 2004 with PWD. PWD hires trucks from him he said. He said the letterhead in P94 is of his company but the signature appears there is not of his. He doesn't write English and that he did not write the letter P94. He said, as far as he knows he didn't submit a tender for upgrading of Saroni Farm Road in 2004. P96 when shown, he said that the letterhead is in the name of his company and the writing and the signature are not of his. Further he said, that he did not submit either P94 or P96 to DPO Northern at all. He didn't have the man power and equipment in 2004 to do the work mentioned in P94 and P96 he said. When he submits a quotation or a tender to government, his accountant types it in the computer he said. He could not read the P82 booklet in English, properly in Court.

[58] In cross-examination he said, that his accountant was Vinod Chand from Labasa and he use to write to other people like FIRCA on his behalf. He had lot of faith in the accountant and he used to give his letterheads to the accountant. He said that he never gave his letterheads to the 2nd Accused.

[59] In re-examination he said, he had given his blank letterheads to his accountant.

[60] Prosecution called Josaia Vataniyaragi to give evidence next. He works as a carpenter for PWD since 1990. He got a Trade Certificate which covers the subject of constructions. He draws plans for the PWD when he got instructions from his bosses, he said. Then he has to get approval from the relevant boss. P93 was drawn by him on the request of the 2nd Accused. None of his bosses approved it he said.

[61] 2nd Accused and the witness were workmates in PWD. 2nd Accused had been a clerk. He never submitted P93 for approval to his superiors. Plan was drawn on a PWD paper on his own. 2nd Accused had wanted it for a private job. He did not charge any fee for the drawing of the plan. Thereafter he said, in the same year 2004, 2nd accused had asked whether he could do the construction of the bridge. He had started constructing the bridge but he said that some things in the plan P93 were done and some were not done. He had started the work after he drew the plan. When he gave the 2nd Accused the list of material only some of them were given to him by 2nd Accused. Although in the P92 plan, there are 3 beams, he has put only 2 beams, as 2nd Accused supplied only two. The two steel beams supplied were old ones he said. No wings walls were built as 2nd Accused had said not to build. He said without the wing walls being built the soil beside the bridge will erode. When questioning on putting 2 beams instead of 3 beams he said the 2 beams will be over loaded. Without wing walls and without a centre beam he said the bridge will not last long. About his education he said that he got a C grade in Fiji Junior Examination and after joining PWD he did Vocational Studies.

[62] When questioned on P91 contract for Saroni Farm Road he said that this is the first time he is seeing P91. When constructing the bridge nobody from either PWD or Commissioner's Office had come to supervise. The witness knew the 1st Accused, and he said that he has seen several occasions the 1st Accused in 2nd Accused's garage/yard.

[63] It had taken 5 Saturdays for him to finish the work of the bridge. He again said with only 2 beams when crossing is overloaded the beams will bend.

[64] In cross-examination he was questioned about his memory on the meals he had for weeks. He said he can't recall what he had for lunch on 6th May 2010 last year. He agreed that his recollection on events of 2011 will be fresher that the events in 2004, 7 years ago.

[65] He said that the 2nd Accused requested him to draw the plan in his spare time and he did it in one hour, as he was used to draw many plans before. The plan was done for Saroni Farm Road for PWD standards as he does every day. When it was suggested to the witness that the request to make the bridge by the 2nd Accused was not made few days after the plan was drawn, but some time in April 2005 as he had said to FICAC in his statement, he said he is really lost. He further said all he knew was that he was asked to build the bridge but he can't remember the month. He said that he agreed to build the bridge for $2000 after discussion. He could not remember the cost for material. When it was time to buy the timber, the 2nd Accused had said that the price of timber was high. He has constructed bridges for the 2nd Accused's contracts before. He agreed that those bridges had only two beams. He said that a bridge like this would cost around $80000.

[66] In re-examination he said that cost of $80,000 he mentioned was for 2004/2005.

[67] The next witness for prosecution was Kelera Nukutaumaki, who is a Director Public Service Commission. She submitted P1 and P2 agreed documents where the 1st Accused was posted in P1 and where he was promoted in P2. Giving evidence on the hierarchy of the structure of Commissioner's Office, she said, Divisional Commissioners are the heads of Administration Division and then you have the Divisional Planning Officer in Administration level. At Divisional level Divisional Planning Officer is the 2nd in charge in Commissioner's Office she said. So Divisional Planning Officer can make decisions in Commissioner's capacity in the absence of the Commissioner she said. When she was questioned about the relationship of PWD with Commissioner Northern she said, the link between the two Ministries in terms of development, when Regional Planning Officer identifies projects, Ministry of Works is which is the implementing agency to carry out projects in the Division.

[68] She said that 1st Accused was appointed in 1981 as a relieving clerical officer, served in various divisions under Ministry of Provisional Development, as a District Officer, before he was appointed the Divisional Planning Officer Northern Division. She said Principal Admin Officer is same as Divisional Planning Officer.

[69] The Prosecution then called Principal Agricultural Officer, Sugrim Chand to give evidence. He has experience in the Primary Industries as an Agricultural Officer for 33 years. When constructing a farm road he told court the steps to be taken. From the machineries as to cut the road, excavate drains, constructing culverts and gravelling the road. He said in farm roads, trucks of 5 – 7 tons carry farm produce like dalo in these roads. He said that he knows about the Saroni Farm Road. Initially there had been access for farmers, where some 20 members went and started farming dalo and yaqona. That was around year 2000. The farming area expanded with time. When the road was built his staff went to see every fortnight and he visited once in 3 months he said. When the farmers complained he visited the place in 2004. When he visited only a portion of the road was gravelled and motorable. There were 4 creeks without culverts. He said the gravelled portion was approximately 1.5km. Two thirds of the road was gravelled he said. He did not measure the distance as he could travel only 1.5km that day he said.

[70] The document marked P98 which was sent by the witness to the Divisional Planning Officer was marked without objection. According to P98 dated 6/2/2004, the witness had visited the Saroni Farm Road on 4/2/2004. Witness said that the contents of P98 are correct except the kilometers mention there as they had no tools to measure. The witness again said when he was asked about what he told FICAC in his statement, that he told FICAC it was 3.5km gravelled and 1.5km not gravelled. He said it was approximately and what he told the FICAC was correct. He further said that he read and signed the statement and according to his understanding the contents were correct. He did not get a reply from Divisional Planning Officer for the letter P98. When he visited there was nobody working on the road and no machineries had been there. He admitted that according to P19 the length of the road is 3km. When the extent of the farm land expanded, he said the road did not expand as the farmers settled down around the road.

[71] He has visited the Saroni Farm Road for the last time in end of 2007. He said that when he visited in 2007, farmers were using bullock carts to transport their produce. He said he is not sure about the engineering aspect of the condition of the bridge, but they could cross the bridge with a lorry. However, when P90 the photographs of the bridge was shown he agreed that it was the same when he visited.

[72] In cross-examination he said when he visited the road, they could not proceed beyond 1.5km because there was no culvert to proceed beyond that. He said that they walked for about 20 minutes from that point. When he was questioned on what he had said in his statement to FICAC, he said, after travelling in the car the balance distance was assessed by him by walking. He said sorry if he had not mentioned about walking the rest of the distance, in his statement to FICAC.

[73] He further said that they discussed these matters at the meetings and it was the next level of authority to proceed. Answering the question on the gravelling beyond the culvert he said although the vehicle twin cab he went couldn't go by pass the creek, the gravelling trucks could go because they are higher than the twin cab. When he visited he did not know who the contractor was. All the complaints made about the road were of year 2004 he said.

[74] Prosecution called Waisale Naibuka who had been an Estate Assistant of Native Land Trust Board before. He had been an Estate Assistant for NLTB for 2 years. His duties were to screening of all lease applications. He explained how lease applications from applicants and Mataqalis are screened and how a lease is registered in NLTB. Consent of Mataqali is part of an application for lease he said. Further he said if the land is outside, reserve lease could be given without the consent of Mataqali. Registration has to be done whether the land is of outside reserve or inside reserve. He explained to you about extinct mataqali and that how those lands go back to Yavusa.

[75] Documents P99 and P100 were marked and produced without objection. P99 is a summary of leases for Mataqali Naivitu and P100 is a summary of leases for Mataqali Rokotarotaro. On P99 and P100 he said no land from Naivitu or Rokotarotaro had been leased to Jai Surendra Prakash Sharma. As per P99 and P100 he said that there were no active leases in the name of Jai Surendra Prakash Sharma.

[76] In cross-examination he said for Native Land for any dealing, you require the consent of Native Land Trust Board. He said in P99 and P100 there are registered leases as well as unregistered leases. Answering a suggestion by Defence Counsel he said in P99 and P100, that is not the only and total land owned by Mataqali Naivitu and Rokotarotaro. He said that there are other land in respect of which leases has not being granted as yet. Mataqali is a legal land owning unit he said. When it comes to Mataqali land, consent of Turaga-ni-Mataqali can be taken at any stage before applications for lease is made to the NLTB he said.

[77] He gave evidence as to how the procedure is followed and offer letter is prepared by NLTB.

[78] Witness said that if you approach the leased land you can go to Turaga-ni-Mataqali or members and you don't have to go to the NLTB. If you ask for good will, payments will be arranged between the applicant and mataqali he said.

[79] Witness said that he has come across places where people reside on mataqali land and had not made any application to NLTB. Those are places where lands are not subdivided he said.

[80] A proposed scheme plan of Rokotarotaro division was shown to witness and he said that it was on hold with the NLTB. He said that if a mataqali become extinct, the land of the extinct Mataqali reverts to Yavusa. In this case he said, Mataqali Rokotarotaro is an extinct mataqali. He gave evidence on the difference on registered lease and non registered lease. Payments on good will he said is a matter between mataqali and the person who pays and it has nothing to do with the NLTB.

[81] He further said, in these land which are not subdivided he has come across people residing on these lands without making applications to NLTB. Answering further questions by defence counsel he said, referring to the land which is not subdivided, only after the approval of the Town and Country Plans Board that lease applications will be entertained by NLTB. He again said with regards to land which is neither leased nor formal document has been prepared and if land is available, mataqali can allocate a piece of land to a person with or without good will, and NLTB is not involved. Then if the person so allocated needs documentation he or mataqali may make an application to NLTB for further lease.

[82] He further admitted in respect of the land which is mentioned in the proposed subdivision plan some applications have been processed and leased issued. Some applications are on hold by NLTB.

[83] In re-examination, the witness admitted that in term of the Section 19 (1) of the Native Land Trust Act as amended, if any mataqali extincts, the land shall be vested with the NLTB not with the Yavusa. He further said that when those land is vested with the board (NLTB) no other mataqali can lease out those lands. When he was questioned on the land of extinct mataqali he said, that the Estate Officers have basic knowledge and when there is an extinct mataqali, the common knowledge is that it reverts to the clan. He said that he gave that answer on common knowledge but not according to law.

[84] The next witness was Marika Kaloucava. He belongs to Mataqali Naivitu. He said that when a mataqali land is leased out the consent of mataqali has to be taken. He did not know of any land which was leased to the 2nd Accused from his mataqali land. And further said that no land of Mataqali Naivitu was leased to 2nd Accused. Further he said that he has never consented to give a piece of land to 2nd Accused from his Yavusa.

[85] In cross-examination he said that he is not well verse with the NLTB. Further he said that he doesn't know whether land of an extinct Mataqali goes to Yavusa. He only knew that Rokotarotaro was an extinct mataqali.

[86] When he was questioned about what he had told in his statement to FICAC that the extinct Mataqali land goes to Yavusa, he said that he meant that it would go to 3 Yavusas. He said that his statement to FICAC is correct.

[87] In re-examination the witness stated the 1st Accused is his cousin. He also explained the relationship of other members of the Mataqali Naivitu to the 1st Accused.

[88] The prosecution then called the witness Sunia Lalanavanua who is a chief of Natogadrau village. He belongs to Naivitu Mataqali. 1st Accused is the head of mataqali since 2002. Since 1st Accused had been the head, the witness had not attended the mataqali meetings.

[89] He said at mataqali meetings, they discuss the development like farming and housing. They belong to Natogadrau Yavusa. There were 3 Yavusas in the village. They are Natogadrau, Nuku and Muana. 1st Accused is his first cousin he said. Mataqali had leased out land in the past. He has signed giving his consent to lease in the past. When he was asked whether he recall consenting for a land to be leased to 2nd Accused he said, that he doesn't know anything about signing of that document and that he doesn't know a person by the name of Jai Surendra. Further he said that he doesn't know any member of his mataqali giving their consent to give land to 2nd Accused Jai Surendra Prakash Sharma from Naivitu Mataqali land.

[90] He knew land given from Naivitu to any one else other than the 2nd Accused. He said he has not leased out any of the Naivitu land to 2nd Accused.

[91] In cross-examination when he was asked about few names he said he knew of 3 people to whom he had given consent to give land. He admitted that Turaga-ni-Vanua Natogadrau, Turaga-ni-Yavusa of Natogadrau is 1st Accused.

[92] He said money comes to Mataqali cannot go to education of children. When he was questioned he admitted that his child Wati's school fees were paid by that money. However, he explained that the money for school fees $1000 were given by one Naren. 1st Accused had asked to get money from Naren. He said Naren was living in land belongs to Naivitu. Naren has given yaqona as sevusevu to 1st Accused. Yaqona was presented to 1st Accused by Naren as sevusevu because Naren was asking for land.

[93] The next witness was Kuliniasi Saumi, FICAC Officer who recorded the caution interview statement of 1st Accused. Caution interview statement of the 1st Accused was marked and produced on evidence as P101. The caution interview statement was read before you in court. In his caution interview statement made to FICAC on 26/5/2009 and on 27/5/2009 the 1st Accused has said that he chaired the Tender Board meeting held on 6/10/2001 representing the Commissioner Northern Division. He had said that Commissioner Northern is the Chairman of Tender Board and that he the 1st Accused seldomly attended meetings as it is not part of his position description. He has attended the meetings on the invitation of sitting members.

[94] According to the minutes of the meeting held on 6/10/2004, upgrading of Saroni Farm Road and the Korolailai crossing were part of the agenda. He had said according to the minute, the Divisional Engineer Northern was concerned of PWD plan which was submitted by a contractor (Babasiga Hire Services) without his knowledge. Other members think otherwise as it could be a way of improving road. On that Divisional Engineer's concern about the plan, he has left it to the members he had said. When he was asked the criteria on which the contract was awarded to Babasiga Hire Services he had said, that it was the cheapest quote and good records on past performance.

[95] He further had said as Divisional Planning Officer he had no specific role in the selection or awarding of contracts on such projects or any development apart from the Divisional Tender Board. He said that he had no special relationship with the 2nd Accused. He said he never received or obtained any kind of offer from 2nd Accused during his service as Divisional Planning Officer. In his caution interview statement he admitted the payments made by 2nd Accused to his personal finance at Merchant Finance including the initial deposit for his vehicle. Final installment he himself had paid. He had further said that those payments to Merchant Finance was paid by 2nd Accused to cover the cost of the 3 blocks of land given to him from his Mataqali land at Natogadrau and also to cover the cost of his vehicle a Toyota Spinster registration No. EA 919 which he had taken. It was recorded on 26/5/09 and 27/5/09 he said.

[96] The witness was also involved in additional inquiry to confirm the answer of 1st Accused to question No. 156. He said he recorded statements of two mataqali members and also confirmed from NLTB records, as to whether there was any existing lease from the 2nd Accused. He has recorded statements of witnesses. Mr. Waisake Naibuka of NLTB, Mr. Marika Kaloucava and one Sunia. He has witnessed another caution interview of Semi Matalau that was conducted by FICAC Officer named Anil.

[97] In cross-examination he said that the 1st Accused was brought from his village Natogadrau to Labasa on 26/5/2009. Same day caution interview statement was conducted. He said that the 1st Accused was taken from his house at 6.00a.m. and was brought to Labasa at 8.30a.m. and caution interviewed the same day. 1st Accused was not told in advance about the allegation and that he will be caution interviewed, he said.

[98] The witness agreed that from 14.10 – 20.20 hours for 6 hours no break was given to 1st Accused. When he was interviewed, and yet he answered voluntarily and with out hesitation.

[99] He further said that he didn't cross check with Commissioner Northern whether he went to Suva or was in Labasa on the day of the Tender Board meeting as he was satisfied with the record of the minute book. Answering questions by defence counsel on the answer to Q156 in the statement whether he asked the 1st Accused about the land and the vehicle mentioned in the answer to Q156, he said that the posed the questions on the available evidence at that time and further inquiries were made on that.

[100] In re-examination he said during the interview the 1st Accused did not ask for any break. Explaining the procedure of informing the suspect prior to the day he is brought to FICAC he said, it depend on the suspect, if they feel the suspect will evade, normally they approach and explain right there and not before.

[101] Prosecution then called the witness Jai Prakash to give evidence. In year 2005, he had worked for Babasiga Hire Services Company as a driver. The hand written note book which he maintained when he was working for the 2nd Accused's company was marked and produced in evidence as P102. It was not challenged by defence. He was involved in the upgrading of Saroni Farm road as a truck driver to do gravelling. He said that he did not gravel the entire road. He said that on 25/5/2005 he gravelled the road with 9 half loads of gravel. His last day of work on this road had been 26/5/2005 where he gravelled the road with 17 half loads of gravel. Further he said again on 27/5/2005 he has gravelled 3 half loads. On the last day 27/5/2005 he had transported the digger to Labasa. 2nd Accused's father-in-law had supervised his work. Further he said that he had seen 1st Accused at their yard.

[102] In cross-examination he said he started the work in Saroni Farm Road on 10/4/05 and last day of work was 27/5/05. He said that he was not there the whole time and further said that it was a hard road to work. Apart from him, the days he worked another truck driver named Prem Chand had worked. There had been some Fijian workers building a bridge he said.

[103] The next witness was Solomone Turagalevu, a carpenter in PWD. He had been working as a carpenter for PWD since 1991. He said that he built the bridge in Saroni Farm Road with 4 other workers. Josaia was the leader of the workers he said. Wing walls were not done he said. He said he saw the plan P93 of the bridge before he started building. He said the bridge was not built according to P93 as wing walls were not built. They have worked for 6 weeks only on Saturdays. Nobody from PWD or Commissioner's office had come to inspect the bridge. Neither the 2nd Accused nor the 1st Accused had come to inspect the bridge. The 2nd Accused had paid them $100 each per week he said. He identified the pictures from P90 as the pictures of the bridge they built in Saroni Farm Road. He said at that time there were no logs on the bridge as shown in the pictures. There had been soil on a cement abutment he said, of which soil had got washed away.

[104] In cross-examination he said he sees no difference between concrete and cement. Only one side of the embankment there was a cement structure built he said.

[105] The next witness was Rajesh Kumar, Acting Road Supervisor, PWD. He has 18 years experience at Department of National Roads as a Senior Technical Assistant. From there he was upgraded to a Road Supervisor. He inspected the Saroni Farm Road on 11/6/2008 on the instructions of the Divisional Engineer and made a report. His report was produced as P103. Total distance of the road was 2.227km. Out of which only 1.3km was accessible by a 4 wheel drive he said. Beyond that you got bushes and trees and only a track was there he said. There were no culverts built on the crossings he said.

[106] In cross-examination he said he visited the road only once. He had noted everything in the field note book which should be in office he said. He said with his experience to build each culvert to PWD standards minimum cost will be $3000.

[107] In re-examination he said that it depends on the size, place and the material you use. It may vary up and down he said.

[108] The next witness was Suliasi Vunibola. He is from Saroni, Dogotuki. He said the Saroni Farm Road leads to four Farm houses. The road starts from Saroni Settlement. He said he knows 1st Accused and 2nd Accused. The upgrading of the road was done in 2005 by 2nd Accused's company. He said that when upgrading was done gravelling of the road was not completed. Explaining that he said that they had a conversation with the Divisional Planning Officer and the 2nd Accused. They even have gone to the place where upgrading was done. He had been told that there will be a fund and the fund would be given to finish the road. He said the 2nd Accused did not finish gravelling. The bridge on one of the creeks were built by 2nd Accused's company.

[109] After the upgrading was done, 1st Accused had come for the function and inspection was done. The witness said that he talked to 1st Accused and told him that the road is not finished and 1st Accused had told that a fund will be given by the Commissioner. 2nd Accused also had been there at that time.

[110] The bridge which was built by 2nd Accused is not being used now as the bridge is bad he said. He said that the road is now bad and they can go only by horse or bull. No vehicle can go he said. Vehicles could go for not more than one year over the bridge he said. Now they carry their farm produce by horse or bull he said. He identified the pictures in P90.

[111] In cross-examination he said that when the 1st Accused came, that he requested him to bypass the first creek and take the road to the village. He said when FICAC Officer came with 2nd Accused in 2008 they managed to cross only one crossing. He said that they got off from the 2nd bridge from the vehicle and walked. He said he complained about the road to Agricultural Officer Sugrim Chand after the work was done. He had complained once. He said that he also complained once before 2nd Accused started work. He said that the 2nd Accused is the only contractor who worked on this road and no one worked before the 2nd Accused. He said that he doesn't know who complained to FICAC and that he would have known if it was done by somebody from the village.

[112] In re-examination the witness said that when the 2nd Accused started work there was an existing road.

[113] The next witness was George Tavo, who is the Senior Construction Engineer, PWD. He had been working for PWD since 1986. He joined as an apprentice. His qualifications are that he has Bachelor of Construction Management Degree in year 2000. He had undergone training in Japan on Comprehensive Bridge Engineering for 3 months in 2004. He has supervised building of Vatudova Bridge which was 20 metres. Has supervised construction of building and repairs of Jetties.

[114] He has inspected Saroni Farm crossing in 2008. The report he made after inspection was produced in evidence as P104 without objection. He explained all the discrepancies he saw which was put in the report P104. He has seen part of the embankment washed out and logs were placed over the washed out area to allow access on the bridge. Third attachment to the report was the drawing given to him by the Divisional Engineer as the drawing of the bridge and he said that it is same on P93. The other 2 drawings that he drew were his observations. He said that discrepancies shown in his report on 3 and 4, 5 and 6 would weaken the bridge. Discrepancy No. 7 will not make a difference. He said it was the same bridge he inspected when he was shown pictures in page 2 and 3 of P90.

[115] In cross-examination he said the plans that PWD use for construction of bridges are of high standards. He said bridges are built to sustain loads and if it is constructed according to the plan, it should sustain the load. He agreed that he had inspected cane access bridges and not all those bridges had wing walls. He said the gabion wall was an alternative to the concrete abutment but not to the wing walls. He has not seen any bridges with the alternative to wing walls.

[116] The next witness was Anil Chand. He had worked for FICAC in 2008 and had taken part in the investigation in this case against 1st and 2nd Accused. He has recorded the caution interview statement of 1st Accused which was produced in evidence as P105 which was read before you in court. It was recorded on 5th and 6th of March 2008. He has also recorded the caution interview of the 2nd Accused on 28/2/08 which was produced as P106. When he recorded the caution interview of the 2nd Accused he has visited the Saroni Farm Road and taken pictures of the road. He identified the pictures in P90 as the pictures taken by him. He said that the FICAC vehicle could not go beyond the 2nd crossing. Beyond that they had gone by foot. Certificate of Registration of Babasiga Hire Services and Babasiga Spares and Hardware Supplies were produced in evidence. Further LTA documents regarding vehicle No. EA 919 was produced in evidence.

[117] In cross-examination he said that he does not know who the complainant in this case was, but he was directed to investigate by the Deputy Commissioner with an audit report. The audit report had been about projects undertaken by private contractors. The audit report has recommended an investigation on the Saroni Farm Road project. According to Audit report the investigation was recommended on the project, about payment without the project being completed.

[118] On questioning about tender procedure mentioned in question 45 of the caution interview statement of 1st Accused he said he agreed with the suggestion by Defence that 1st Accused had nothing to do with the tender procedure. However, he said that 1st Accused would have had the relevant documents at the meeting. In his investigation he has not inquired as to when the 1st Accused was informed of the meeting to act for Commissioner whether it was the same day or before. He further said he believed when 1st Accused said that he had nothing to do with the calling of tenders. Further he said that he believed when the 1st Accused answered the Question No. 67 when he said that the Commissioner reserves the right to reprogramme his capital works to next year. When it was suggested "as for an awarding of tenders I put it to you that 1st Accused left the decision for its board members at the meeting, the sitting board members" he answered 'yes'. He admitted that the allegation put to the 1st Accused at the caution interview statement stage count nos. 1 and 2 are the same. With regards to the 2nd Accused's caution interview statement he said when 2nd Accused denied that he did any work in January – February 2004 and that he went to Suliasi for verification.

[119] In re-examination with the agreement of both parties, charge statement of 1st Accused and 2nd Accused were produced in evidence. The two statements of Abhi Ram and Ms Maria Rodan were produce in evidence as admitted by both parties.

[120] That was the evidence for the prosecution.

[121] Madam and gentlemen assessors,

At the end of the prosecution case you heard me explain several options to the accused persons. They have these options because they don't have to prove anything. The burden to prove their guilt beyond reasonable doubt remains on the prosecution at all times. The accused persons chose to give sworn evidence and to subject them to cross examination. Further they called a witness to give evidence on their behalf. Therefore you must give their evidence careful consideration.

[122] 1st Accused giving evidence said that he joined the Public Service at the Ministry of Fijian Affairs and Rural Development. He was transferred to various parts of Fiji as an Assistant District Officer, District Officer and as Divisional Planning Officer. He started work in Labasa from December 2002 where he was posted to join the Commissioner Northern Division Office in December 2002. He was the Divisional Planning Officer. In 2006 he joined the Supervisor of Elections Office in February 2006 and in 2007 he joined Ministry of Health. Now he is a full time villager on suspension from Public Service and he is committed to the community development rehabilitation in the village. He said he understands the allegation put to him in this case and mainly on two allegations on allocation of contracts and that he corruptly benefited from payment for vehicle. He said he didn't call for tenders and that he doesn't know the procedure for calling for tender. He chaired the Tender Board meeting held on 6/10/2004. On the same day, morning he was asked by Commissioner to sit on his behalf in the meeting he said. He said that he did not know the agenda and did not know what was going to be decided at the meeting. He only knew that the Tender Board Northern Division members would be in the meeting he said.

[123] Commissioner asked him to sit on his behalf to observe the proceedings he said. Commissioner could not attend the meeting as he was travelling to Suva for an urgent meeting. At the Tender Board meeting contracts were awarded to Babasiga Hire Services, the 2nd Accused's company. At the meeting he was invited by the members to chair and the decisions to award tenders were made by the sitting Board members he said. Prior to the meeting he did not know of the project of upgrading Saroni Farm Road he said. He would recall Agricultural Officer Macuata requesting Commissioner Northern for funding assistance to Saroni Farm Road in early 2004 he said.

[124] The 2nd Accused carried out the work on Saroni Farm road in year 2005. Saroni Farm road came into the picture upon negotiation of the community and the Commissioner Northern Division. He said tenders were awarded on 6/10/2004 and the work was not done in 2004 as the allocated funds were diverted for urgent projects by Commissioner which he has the power. He told Court about the 4 types of Roads and said that Saroni Farm Road is a non cane access road. The purpose of such roads is to provide access to farmers from Point A – Point B and they are not permanent roads he said. Such roads there are no specifications he said. The community and the people would decide from where the road begins and where it should lead to. The head of the community of Saroni Settlement was Suliana he said. After the road was done by 2nd Accused, he has carried out an inspection on the request of the Commissioner. He admitted that in P15 tax invoice he made the certificate after inspection. By stating "expected standard" he said he meant that it has attained the objective of the project by getting access to Point B from Point A. What he meant by "extra works" he said that it was the diversion of the road alignment from the originally proposed alignment for the road to go into the village first to cross the 2nd crossing he said. There had been allocation of funds for further works in year 2006 he said.

[125] With regard to the vehicle he said the date of application for Finance was on 12/8/2004 and the dealing was about couple of months before that date. He said that the 2nd Accused approached him for land in Nausori area. Further the witness (1st Accused) was trying to change his vehicle to a bigger one. They negotiated for the land and his car in exchange for the 3 blocks of land. He had offered two residential blocks of land for $5000 each and a commercial block at $15000. Value for the car was $11000 he said. The land is approximately 1km from the Nausori Airport. Then he had made the application to Merchant Bank. He said that extinct Mataqali land of Rokotarotaro reverts back Yavusa Navogadrau where he is the Turaga-ni-Yavusa. He said the block 5, 7 and 19 which are shown in the proposed scheme plan (DMFI 1) which was marked as D3 were to be given to 2nd Accused in return to the vehicle pajero.

[126] The arrangement for payment for his Merchant Finance loan was for 2nd Accused to pay the deposit and the payments. The land was to be given to 2nd Accused on the completion of his payments to Merchant Finance he said. The 2nd Accused had not completed the payments and 2nd Accused had told him that he was facing hardships. He had spoken to 2nd Accused while he was not making payments and 2nd Accused had told him that 1st Accused was late in offer for the land by way of formalities and that he was also facing some hardships.

[127] 2nd Accused had wanted to opt out of the deal and requested of the payments refunded. But he said that he had no resources to do so and therefore he requested him that he would continue to process his land. He had advised NLTB and also has obtained mataqali members consent. He said there are others who have already paid good will including one Mahesh Prasad in proposed subdivision scheme plan (D3). All of them were charged $5000 good will. Lekim and Donald had been granted leases by NLTB on this land he said. An application to NLTB was marked and produced in evidence as D2. 2nd page to be filled by applicant is not filled. After obtaining consent of members of Mataqali, he has sent it to 2nd Accused to fill his part and to be lodged at NLTB with the appropriate fees.

[128] In cross-examination he said he was an experienced public officer when he took office as Divisional Planning Officer Northern Division. Mr. Jitoko, the Divisional Engineer who sat on the Tender Board meeting is a distant cousin of him, he said. The relevant Tender Board meeting held on 6/10/2004 was his first meeting he said. When it was put to him that Jovesa Vocea giving evidence said that 1st Accused chaired meetings during his tenure as secretary between January – 2003 to October 2004 he answered "may be I can not recall."

[129] He said when he represent the Commissioner at Tender Board meetings, he chair, and leaves the deliberation and the decisions to the members. He admitted that the final decision of the Tender Board should be approved by the chairman of the meeting based on the decisions of the majority of the members and that he approved the decisions of Tender Board held on 6/10/2004.

[130] He said the FICAC Officer who gave evidence was not at the meeting and that he cannot know the contents of the meeting. Answering the questions on P11, P12, P94 – P97 he said although P11, P94 and P95 were addressed to Divisional Planning Officer, Northern, such quotations listed with names of the project on the body of the envelope are directly submitted to the Secretary Tender Board. He denied writing the 25000 in a circle in P11 and the total amounts written in P94 and P95. Further he denied that he tendered the P11, P94 and P95 to the Tender Board as suggested by the prosecution. He said in answering to the questions by Prosecuting Counsel, that he cannot recall whether District Officer Macuata was suspended over the issue mentioned in para 8 of the P10 minutes. However, he said that he made recommendation to the Commissioner for the Permanent Secretary's action against District Officer Macuata. He denied that he did so because District Officer Macuata was instrumental in terminating services of the 2nd Accused's company. Further on that he said that there were serious complain against District Officer Macuata about getting in Vunimoli Sawmill 10 meter truck materials to replace Babasiga Hire Service. He denied receiving P12, P96 and P97 quotations as addressed to District Officer Macuata as he was looking after the work of District Officer Macuata.

[131] He said that he does not know whether P94, P95 and P96 are forged documents. He admitted that according to P98 and Mr. Sugrim Chand, two third of the Saroni Farm Road was already gravelled and that is why the contract was awarded to upgrade, but not to built new. He said that Saroni Farm road was not expected to be built to PWD standards. He said the Board discussed in the meeting and understood that the allocated budget cannot reach PWD standards for that particular year. He admitted that Saroni Farm Road upgrading was to be done according to PWD Country Road designs and contractors had to follow those requirements. It was supposed to be supervised by the PWD. He said for that, Commissioner's Office could not afford. He agreed that according to P91 contract, Saroni Farm road upgrading had to be supervised by PWD Officers.

[132] He further agreed that contractor should start work only after LPO is raised, but he said the practice had been to arrange with the Commissioner's Office with contractors to start work before issuing of LPO at the discretion of the Commissioner. He agreed that the work was completed less than a day after raising the LPO. When he was asked that when he goes for inspection, he has to see that upgrading was done according to the contract he said, 'to some extent' and that also he has to see that it meets the objectives of getting access to meet the needs of community. He said that the diversion of the road was unforeseen in the agreement. He said the extra works he mentioned in P15 is the diversion of the road. He denied that he went to inspection and rushed to inspect on the 3rd working day after signing of contract, to prevent PWD from monitoring and supervising.

[133] When he was asked that the road was not completely gravelled he said, "to some extent". When he was questioned on approving payments when work was incomplete he said that he had a meeting with villages including Suliasi and because of the extra works on the diversion that they took it as completed. He agreed that according to P92 supervision of the construction of Korolailai crossing was to be done by Commissioner Northern Division and in P91 it was PWD. He denied that approval of contracts on forged documents and approval of payment when work was incomplete was because the 2nd accused was paying the installments of his motor loan.

[134] Witness agreed that the wing walls were not built in the Saroni crossing. In that he said, that there are similar crossings without wing walls survived for ages and some had been upgraded. He admitted that when P91 was signed the diversion has already happened but nothing was mentioned on that in P91. He said it was a verbal agreement between Commissioner and the contractor. He said the condition shown in P90 pictures may be because no wing walls were built. He further said that he requested further funding as he promised the villages and it was included in the program work in 2006.

[135] He denied that 2nd Accused and him are good friends. When he was asked whether he was the chief guest at the opening of 2nd Accused's Hardware Shop he said "may be". But they are always invited by members of community to officiate in such cases. He said he asked for 2nd Accused's help in making the application for the loan from Merchant Finance. It was done not because he is a friend, but he was going to take land he said. He admitted that Joe Vocea was his school mate in the boarding school and Maciu Jitoko was his close relative whose names were given in his application to Merchant Finance and that they were members of the Tender Board.

[136] He said that 2nd Accused approached him asking for land some time in 2004. At that time he did not have the D3 proposed scheme plan he said. From the geographical map, he had shown 2nd Accused the location and after seeing the geographical map he has agreed to give him $36000. He admitted that the said land belongs to extinct Mataqali Rokotarotaro and it reverted to NLTB. He said that it was given to his Yavusa by NLTB. But he did not know the reference number. He said on the advice from Estate Assistants, the practice had been to consider that it has reverted to Yavusa. He further said, already NLTB has processed some land on the consent of mataqali which are shown in the D3 proposed scheme plan.

[137] In D2 he said he has not filled the acreage as he has referred to the subdivision plan which shows the acreage. When questioned about the number of members on page 3 of D2, he said NLTB has processed before on this number 12 or sometimes 13. However, he said, in Mataqali Naivitu there are approximately
50 – 60 members. While agreeing that consent should be taken from members of the Mataqalis belong to Yavusa he said, the other Mataqalis belong to his Yavusa did not wish to participate.

[138] D2 application was sent to 2nd Accused early this year with all 3 pages. He said that he did not know that signature of members has to be witnessed by a Provisional District Officer. He said that the signatures are already with the NLTB. He admitted that on page 3 the witnessing of signatures was not done. He denied that D2 document was made to make a defence in this case. He said that the defence witness Peniame Drova is the son of Ms. Salome who lives in his village. But denied hat he has a close relationship with Ms. Salome. He said Peniame only attends the church service in the village and goes back.

[139] In re-examination he told court that he has visited other contractors yards as well. He told court the names of other contractors yards he has visited in Labasa, Savusavu, Taveuni and Bua. He said that he was invited to the opening of the Hardware Shop of 2nd Accused and he was not the only one present. About transferring the vehicle No. EA 919 he said that he gave it to 2nd Accused on the date that he received the Pajero. He said 2nd Accused continued to use it, but he transferred it after all payments were made, as it was under bill of sale to Colonial Bank. He said the bill of sale is mentioned in P81. He said that when he paid the final installment on that date the loan installments were in arrears.

[140] He said other then Mr. Vocea and Maciu other Tender Board members are neither related nor went to school with him.

[141] 2nd Accused gave evidence next. He has been in business since 1999. He has done road constructions, upgrading of roads, repairs and maintenance of roads, and crossings for the government. He said he has never submitted any quotation or tender to 1st Accused. When he was doing upgrading and construction of roads, he had been dealing with District Officer Macuata for cane access roads and for other roads either with Commissioner or Secretary he said.

[142] He said after inspection of Saroni Farm Road with Mr. Joe Vocea and Ilisoni Nate and after few weeks of the inspection Divisional Secretary Mr. Vocea has requested him to submit a quotation with the drawings of the crossing. He has then submitted to the Secretary. Mr. Suliasi has requested for another quotation just for the upgrading of road and the 1st and 2nd crossings only. He submitted quotation in sealed envelope he said. Before submitting the quotation he said that he had nothing to do with 1st Accused and he had dealings with Secretary and the Commissioner. Korolailai crossing quotations were addressed to district Officer Macuata.

[143] About the Merchant Finance loan he said he was informed by his cousin who was a mechanic, that there is a car for sale which belongs to 1st Accused and that it was in good condition. He went and asked 1st Accused for the price. Then he was told by 1st Accused that his intention was to purchase a Pajero and that he also has a land in Nausori consists of 3 blocks which he wants to sell. He had told that for good will for residential was $5000 and for commercial land was $15000, and that he is selling the car for $11000.

[144] He then consulted his solicitor and said that he was advised to make payments in cheque, as there are no proper lease documents to the land and that the car can not be transferred because it was under bill of sale. Thereafter he said he mutually agreed with 1st Accused to pay his deposit for the vehicle and to pay the balance payments in installments. He then paid the deposit $17000 and the installments by cheques he said.

[145] Witness (2nd Accused) said that he saw the land and was happy with the land as it was not a flooding area. He further said that 1st Accused promised every month that the subdivision will be done but 1st Accused was not keeping to their mutual agreement. Therefore after consulting his solicitor he said he stopped paying further installments. Then he asked 1st Accused to refund his money and the 1st Accused has said that he would push up the required documents and submit. Further 1st Accused has said that he was not in a position to pay as he was unemployed. So he agreed he said.

[146] Papers D2 were given to him by 1st Accused beginning of this year he said. He has filled a new blue form which is the 2nd page and sent it to his sister for lodgment to NLTB. As NLTB requested to his TIN number it was sent back to him by his sister. He then said the blue form (2nd page) he did not fill, as due to his financial difficulties he is negotiating with some buyers to buy these properties.

[147] About the Saroni Farm road he said, when he started work it was only a foot path and tracks were there for people to walk. He started the work in 2005 and worked for about 4 weeks. He could not remember the month. He said that he did grading, drainage, gravelling, construction of crossing and 4 other crossings after the 1st crossing he did. He said the road did not commence from the place it was supposed to commence and it was diverted. Due to the diversion, the 2nd crossing they started and the 1st crossing which was supposed to be done was left out. Mr. Suliasi in consultation with the Commissioner has asked for the diversions. The diverted part they have built a new road. For the diversion it would have cost him $2000 plus he said. He said the plan was not a requirement to put in the quotation. For material cost for crossing was about close to $9000 he said. He said wages to workers in this project came to about $2000 in total.

[148] Work was carried out in year 2005 and the cost of material increases from about
5 – 10 percent every year he said. To the private contractor who built the bridge he had paid $2000. He has used bulldozers excavator and trucks. He said at that time cost per hour for a bulldozer was about 80 – 100 dollars.

[149] Note books of the workers were marked and produced without objection. He said he didn't make any profit from the project and it was over spent. Korolailai crossing he made a couple of $100 profit he said. Therefore he said for a profit of couple of hundred dollars he would not give away $31000 as a businessman as alleged he said. He had constructed many bridges in other places and wing walls were built only if needed he said. He said that wing walls were to be used in the 1st crossing and that it was not built due to diversion and that 1st crossing was left behind.

[150] In cross-examination he said that his company is not that big in Labasa, but average which had about 10 vehicles including trucks bulldozers and excavators. He said as a businessman he will never part with money or land without security. He said he gave 1st Accused $32000 because he had received a car and 3 blocks of land and that he made payments by not negotiable cheques. P93 plan he submitted with P11 quotation, he admitted. He said it was submitted for 1st crossing. He said nobody asked him to submit a plan. When he was questioned that he said in Court that he submitted the plan because of secretary asked, he denied that he lied to court. He said secretary asked for the plans for the other crossings. He said that he did not submit quotation P11 and P12 to 1st Accused and that it was delivered to the Commissioner's Office.

[151] About D2 when it was suggested by prosecution that he could have told his TIN number over the telephone to the sister, he said that they require a letter certifying the TIN number. On that he said that there is an audit for his account at Inland Revenue and all his transactions are on hold.

[152] He admitted that in D2 there is no place to put the pin number but said that it's a new requirement, and that he has not seen the new form. When he was shown in D2, page 2 is blank, he said he filled a photocopy and sent. He admitted that along with the D2 the required documents mentioned page 2. (Note), were not sent to the sister. He said that he did not have the locality plan.

[153] On Mataqali members signatures he said he is not aware of them. He said he did not fill the original blue form because he had the intention to sell it later on. He said that if he found a buyer he would have lodged another application to NLTB.

[154] He said when he was questioned about the payment of installments to the vehicle, that he did not have a separate account for 1st Accused in his company when he paid the installments by company cheques. He said that the vehicle was in his possession from year 2004. He has sold the vehicle to his father-in-law for $10000 he said. He admitted that when he went and saw the land in Nausori he did not identify the exact block he is going to lease, and that he didn't have the proposed plan for subdivision. His main aim was to see whether the area gets flooded or not he said. Without knowing the exact blocks of land he parted $31000 he said. He had not told 1st Accused that he stopped paying installments on legal advise. He said at that time he referred 1st Accused to his solicitor.

[155] Answering to further questions by Prosecuting Counsel he said he would had done contracts for the government for the value about a few million dollars. He said may be at least ½ million dollars worth of contracts from Commissioner Northern Office.

[156] He said the crossing was never built as the road was diverted. He said when he started work, the road was not graveled ahead of the diversion. He said the diversion part was about ½ km. He said diversion was decided after they started work, by the community. He denied that he was lying to court, that there was no road but tracks. It was suggested to him that this is the first time he comes out about the story of first crossing and the second crossing. He said that he was not asked about it before. He said he used P93 plan to the second crossing as a format. He said that he did not construct the crossing according to P93 plan because the road was diverted and the money was used for the diversion and that they had to redesign the second crossing. This agreement had been between Suliasi and the Commissioner. He said Josese and Solomone worked on his instructions. He admitted that the diversion of the road was done before the singing of contract P91 and however, in the contract there is no mention about the diversion. When he was asked as to why the building of wing walls were not removed from the contract, he said that the signing of the contract is on the discretion of the Commissioner. He admitted that he signed the P91 contract and said that he signed it because he had done the work according to the Commissioner Northern's request.

[157] He said that he started the work as soon as he was instructed by the Commissioner some time in April 2005 and that was before raising the LPO. When he was shown that he had told FICAC in his caution interview statement that he stopped work after LPO was raised he said that he was not shown the LPO at the interview. When shown it to him then he admitted that he was shown the LPO at the caution interview. He admitted telling FICAC Officers that he started work immediately after signing of the contract. However he denied lying to court stating that he did not have any documents at that time when FICAC Officer questioned him to show when he started work. He denied lying to FICAC Officers. He said that his Hardware shop was not opened by 1st Accused but by his mother. He denied that he paid 1st Accused's motor loan payments not to exchange land or car but for the awarding of contracts.

[158] In re-examination he said all his books of accounts were taken by FICAC. He said he was buying a vacant land and that it was not important for him to see the exact location and where the boundaries are. He said the vehicle EA 919 was used by him and his wife during 2004, 2005 and 2006 until it was transferred to his father-in-law. About quotations he said, quotations he submitted to Secretary Commissioner Northern in sealed envelope and the name of the project was written on top of envelope. He said that 1st Accused and him were never business partners.

[159] The next witness for defence was Peniame Drova Vosainaqila who is a Technical Officer attached to NLTB, Suva. He had been working for NLTB for 15 years. He is involved in Development of land, land survey and confirmation of land availability for mataqali landowners. He said that D3 a proposed subdivision plan was drawn by him for Rokotarotaro subdivision. He said land of extinct mataqali normally reverts back to Yavusa which mataqali belongs. In this case he said, Yavusa Natogadrau. In this land there are families, sitting tenants and vacant land he said. Some applications are pending in NLTB and there are people who have not applied to NLTB. One of the tenants of this land in Donald Nilesh Narayan he said. He has surveyed this land on the instructions of the Manager Central Eastern Office in Suva in 2007. It was on the request of the sitting tenants. Donlad Nilesh Narayan had been the first applicant and his lot is Lot No. 1 he said. Lots No. 1, 10 and 17 have been already taken he said. Lots 5, 19 and 7 were vacant and available for lease.

[160] He said, before, NLTB normally required consent of Mataqali. However, lately NLTB can go ahead and process the lease but after consultation with Mataqali.

[161] Donald Nilesh Narayan has got consent of mataqali he said. His file maintained by NLTB was marked and produced as D7. Documents, history card, application, consent of mataqali and agreement for lease were marked and produced in court. Referring to D2 and D7c he said 8 same names appear in both. For Donald there are 9 names of members appear and on D2 he said 13 names appear to consent. He said if an application comes on as in D2 with the names that are there a lease will be granted. However, answering a question by court he said that the lease granting authority is the Regional Manager but not him.

[162] He said once it is submitted together with the fees it will be processed. Witness is the person who sees whether Lots are available and whether Mataqali consent is available. Then he submits to the Regional Manager for approval he said. Normally it would be approved, but final discretion is with the Regional Manager he said.

[163] He said the land which the subject matter of subdivision is not prone to floods. He further said when an application is made to NLTB for a lease for a commercial land TIN number is a requirement and not for residential lease.

[164] In cross-examination the witness said that he knows 1st Accused and he visits 1st Accused's house quite often, but he doesn't drink or eat at his place. He said that he is the Technical Officer in Charge of the area in D3 since end of 2006. He had got in-house training with NLTB on surveying of land and currently doing his diploma. He was trained with the aid of GPS (Geographical Positioning System) he said. He was taught to draw plans and maps. He said that he is not a registered surveyor.

[165] Answering to questions he said that he has a case today as an accused in a drunk and driving offence. Further he had had cases for the offences of resisting arrest, assaulting a police officer and damaging property. He has never served a jail sentence he said. No allegations by NLTB. He said land belongs to extinct Mataqali reverted to Yavusa Natogadrau, and not vested with NLTB. He denied lying in court. He said if a person gets 3 blocks he can get only one letter of mataqali consent.

[166] Native Land Trust Board file relating to No. LOU 50038588 was produced in evidence as P113 which is part of D7. He admitted that in P113 (1) and D7(c) altogether 21 mataqali members have consented. He said it is for the land Rokotarotaro subdivision. He admitted that what is written there is Delainaqarawalu and he said that Rokotarotaro and Delainaqarawalu is the same. He said that the applicant applied for the block and in page 1 he got the wrong consent. Then he affected the signatures in D7(c) he said. Upon consultation with mataqali they had done a survey and decided to the subdivision of residential Rokotarotaro he said. However the minutes of that meeting is not in the file he admitted. Then answering further questions he admitted that there was no such decision to rename Delainaqerewalu to Rokotarotaro and that is was why he had not mentioned it on D3 plan. However he again said that Delainaqarawalu and Rokotarotaro are the same land. That plan was marked as P113 (2). He has drawn P113(2) plan as well.

[167] He denied that he was trying to sell the subdivision land property with the help of 1st Accused. He further denied the suggestion by Prosecution that he changed the name in the plans as there was a decision to stop all leases of land belongs to Rokotarotaro. He said that there was a direction for him to survey the land but admitted that it was not in the file. Lease application by Hari Om Kumar was marked as P114. He denied that he colluded with 1st Accused when he drew plan D3. He said the agricultural leases expire and on demand for residential land, NLTB and Town and Country Plan decides that it should be residential land. He said that there is a big plan at NLTB which shows all the area to be rezoned either agricultural or residential or commercial and this land is also there in that. He said this land is being rezoned. He denied that he was part of the fraud when he drew D3.

[168] In re-examination he said as a Field Worker he surveys new applications whether it is agricultural, residential or commercial. Explaining as to why that there are 2 consents of mataqali's in P113 and D7(c), he said that Donald went to two mataqalis as he was not sure which mataqali owns the land. When he lodged the application, the Technical Officer went for the survey and confirmed which mataqali it belonged to he said. He said that Rokotarotaro and Delainaqarawalu are the same land. He said that the land shown in P113(2) is, lot 1 in D3. He said if further subdivision is made recreation area can be shifted.

[169] That was the evidence for defence.

[170] Madam and Gentlemen assessors,

You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

[171] You may have observed, that when some witnesses gave evidence, there were some inconsistencies between the evidence before this court and the statement given to the FICAC. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to FICAC can affect the credibility of the witness.

[172] You must use your commonsense when deciding on the facts.

Analysis

[173] The elements in dispute are whether the 1st Accused received the repayment of his motor loan corruptly and whether the 2nd Accused paid the same corruptly. As I mentioned before, you have to consider all the events which has taken place before and after the alleged committing of offence to come to a conclusion whether the two Accused persons have acted corruptly or not. You have to consider all the evidence including the circumstantial evidence as I explained to you when arriving at a decision.

[174] As a matter of Law, I must tell you that a witness can give his evidence on his observations, like what he saw, what he heard and what he perceived. Only on certain circumstances court would allow a witness to give their opinion on the matter. These witnesses should be experts on that particular subject. For example you get experts on medical field, engineering field, experts on finger prints etc. You remember the prosecution witness George Tavo, Senior Construction Engineer, PWD gave evidence before you. He gave evidence in court about his qualifications and experience as an engineer who has expertise on construction. Therefore his opinions he gave in evidence on the subject is admissible in law.

[175] You have heard the prosecution witness the FICAC Officer Anil Chand giving evidence. In his evidence answering to suggestion put to him by defence counsel he said, that the 1st Accused when awarding tenders at the Tender Board meeting, left the decisions for its Board members. He answered 'yes' to that suggestion by defence. He had not been there at the relevant meeting. It was confirmed by the 1st Accused in evidence that Anil Chand was not there at the meeting and that he cannot know the contents of the meeting. Further in P10 Board meeting minutes nothing is mentioned to say that the 1st Accused left the decisions for the Board members. Therefore Anil Chand has given that piece of evidence without any knowledge of the fact and he has given his opinion on that. As his opinion is not admissible, you may disregard that portion of evidence of Anil Chand.

[176] You may remember when the 1st Accused was giving evidence, in cross-examination Counsel for FICAC posed a question to 1st Accused, stating that 1st Accused used Mataqali land for his benefit. That question was withdrawn by Prosecuting Counsel and therefore you must disregard that question as it was never posed.

[177] As a matter of Law, may I direct you on the legal principle on lies as corroboration.

[178] You remember when the 2nd Accused gave evidence, the counsel for prosecution suggested that he was lying in court.

[179] On one occasion 2nd Accused said in his examination-in-chief, that after inspection they were requested by Divisional Secretary Mr. Vocea to submit a quotation with drawings of the crossings for the inspection they did.

[180] In cross-examination he said, that he was not asked by anybody to submit the plan, but he just submitted. When it was put to him by the prosecution that he was therefore lying, he said that he was not lying, and that the secretary wanted him to submit plans for other crossings.

[181] On another occasion 2nd Accused said that at the time his caution interview was recorded, the LPO was not shown to him, but he was asked the procedure only. When the question in the caution interview was referred to him he said, on this question he was shown the LPO. However, he denied that he lied to court.

[182] On another occasion 2nd Accused said in evidence that when he started the work, the road was not gravelled ahead. When he was questioned he denied that he was lying in court that there was no road but tracks.

[183] You have heard all the evidence placed before this court including the above mentioned pieces of evidence.

[184] Therefore it is for you to decide whether the 2nd Accused lied in court or not.

[185] If you decide that 2nd Accused has not lied then on this you need not go any further. However, if you decide that he had lied in court on any occasion then you may consider the following criteria.

1. Whether the lie was deliberate
2. Whether the lie relates to a material issue
3. Whether the motive of the lie was of realization of guilt and a fear of the truth
4. Whether it is clearly shown a lie by evidence from an independent source.
   

[186] If only you are satisfied beyond reasonable doubt that the above criteria is fulfilled, that lie may support the case for the prosecution.

[187] In this case Prosecution states that the 1st Accused received the money corruptly and that the 2nd Accused gave the money (repayment of the motor loan) corruptly. In that prosecution states that the road was already two third graveled. No tenders were called even though cost was $25000 for the contract. Further prosecution says that proper tender procedure was not followed. That payment was made to 2nd Accused on certification of 1st Accused, without completing the works according to agreement. That the quotation of Mohd Tasheem and Faizal were forged. That road and the crossing were incomplete although payments were made on certification of 1st Accused. That on the land issue, especially D3 and D2 were made for this case. That the evidence of the 1st Accused, 2nd Accused and the defence witness were per say inconsistent.

[188] Defence says that the awarding of contracts and the repayment of loan was not made corruptly. In that defence says that the repayment of loan was done to get 3 blocks of land from mataqali land and in exchange of the car.

[189] That, there is not enough evidence to show that the 1st Accused favoured toward 2nd Accused or that they acted corruptly. That, the 2nd Accused paid the money in cheques openly and that he would have paid in cash if he wanted to keep the transaction secret. That, award of tenders had nothing to do with the payment as application was made for the loan on 12/8/2004 and the tender was awarded on 6/10/04. That, 1st Accused knew about the Tender Board meeting only on the morning same day. That 1st Accused could not have known about the contents of the tender as it goes to secretary. That, decisions were made by other sitting members of the board. That, tender register was not produced. That, the plans for bridge was drawn for PWD standard roads and it would have cost about $80,000 if it was built to that standard. That, the 2nd Accused stopped payments for loans, when the land was not forthcoming. That, he signed the application form for NLTB and sent it to the sister. That, Donald has leased out land from the same land from NLTB. That, in P6 1st Accused has said that the other $10,000 for deposit comes from proceeds of the sale of his car. That, in the subdivision land there are vacant lots.

[190] You have to decide which version you are going to accept, the prosecution version or the defence version.

[191] If you find that the prosecution has proved all the elements of the offences as I mentioned before beyond reasonable doubt, you may find the accused persons guilty. If you have any reasonable doubt on any of the elements you must find them not guilty. You must consider evidence on each count, on each accused separately.

[192] Your opinions on the charges on each accused will be either guilty or not guilty.

[193] Madam and Gentlemen assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused persons. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
Judge

25.05.2011