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Fiji Independent Commission Against Corruption v Jogia [2012] FJHC 873; HAC098.2009S (2 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 098 OF 2009S

THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
[FICAC]

vs

1. ASHWIN KUMAR JOGIA
2. PENISENIASI TAGIKIMATUKU
   

Counsels: Ms. F. Pulewai and Ms. S. Sanmogam for Fiji Independent Commission against Corruption [FICAC]
Mr. H. Nagin for Accused No.1
Mr. A. Naco for Accused No. 2
Hearings: 16th to 27th January, 2012
Summing Up: 1st February, 2012
Judgment: 2nd February, 2012

JUDGMENT

1. Following a trial lasting 10 days, the three assessors returned with a mixed verdict. For Mr. Ashwin Jogia (accused No. 1), assessor No. 1 and 2, found him guilty as charged on count No. 2( ie. "uttering a forged document", contrary to section 343 of the Penal Code, Chapter 17). Assessor No. 3 found him not guilty as charged on count No. 2. As for count No. 4 (ie. "making a false statement without oath", contrary to sections 121(b) and 47 of the Penal Code), all the three assessors unanimously found him guilty as charged.
   
2. As for Mr. Peniseniasi Tagikimatuku, the three assessors unanimously found him not guilty as charged on count No. 1 (ie. "forgery", contrary to section 341(1) of the Penal Code), but guilty as charged on count No. 3, another forgery charge.
   
3. In summary, for Mr. Ashwin Jogia, the majority of the assessors accepted the prosecution's version of events on count No. 2, and they unanimously accepted the prosecution's version of events on count No. 4. As for Mr. Peniseniasi Tagikimatuku, the three assessors unanimously found him not guilty as charged on count No. 1, but guilty as charged on count No. 3. The opinions of the assessors were not perverse. It was open to them to reach such conclusions on the evidence.
   
4. However, the authority at this stage of the proceeding is sections 237(1), (2) and (4) of the Criminal Procedure Decree 2009, which reads as follows:
   

"...237.—(1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors.

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be—

(a) written down; and

(b) pronounced in open court".

5. Similar provisions in previous "Criminal Procedure Codes" for Fiji, have being canvassed before, by the superior courts. For example, in Ram Dulare, Chandar Bhan and Permal Naidu v Reginam [1956 – 57] Fiji Law Report, Vol. 5, page 1, the Court of Appeal said the following:
   

"...It is clear that the legislature has given a trial Judge the widest powers to accept or reject the opinions of assessors sitting with him. These powers are discretionary. From the terms of the judgment, the learned trial Judge made it quite clear why he came to his decision in this case and why it was that he was unable to accept the opinion of the assessors.

In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Cases 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial judge. The responsibility of arriving at a decision and giving judgment in a trial by the Supreme Court sitting with assessors is that of the trial Judge and the trial Judge alone and in the terms of the Criminal Procedure Code, section 208, he is not bound to follow the opinion of the assessors..."

6. The above view was again re-asserted by the Fiji Court of Appeal in Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, when it said:
   

"...In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions based on their views of the facts..."

7. Given the above authorities, the three assessors' findings in this case are merely "their opinions based on their views of the facts" of the case. They have no power to try and convict the accused. Their duty was to offer their opinions which might assist the trial judge. The trial judge has the power to accept or reject their opinions. The trial judge is the sole judge of the facts, and it is his responsibility to decide the guilt or otherwise of the accused, based on the evidence.
   
8. I have reviewed the evidence called in this trial, and I have directed myself in accordance with the summing up I gave the assessors on 1st February, 2012. The assessors have given their opinions on the same date. I have summarized their opinions in paragraphs 3 hereof.
   
9. I accept the assessors' majority opinions on count No. 2, and their unanimous opinions on count Nos. 3 and 4. However, as the trial judge, I reject the assessors' unanimous opinions on count No. 1. My reasons are as follows.
   
10. Mr. Peniseniasi Tagikimatuku, while giving evidence, admitted that, he was the one that prepared the completion certificate and its butt. This was also confirmed by his superior, at the time, Mr. Samuela Bolalailai (PW1). According to Mr. Bolalailai, Mr. Peniseniasi was looking after Mr. Ashwin Jogia's case with the Navua Rural Local Authority. According to Mr. Peniseniasi, he and Mr. Jogia went to his property on 15.7.08, wherein he did the final inspection. They returned to the office for the issue of the "completion certificate". At the office, Mr. Peniseniasi made his report to Mr. Bolalailai, his superior. He recommended that the "completion certificate" be issued. Mr. Ashwin Jogia, was also in the office, to receive his "completion certificate".
    
11. The evidence showed Mr. Bolalailai instructed Mr. Peniseniasi to prepare the completion certificate, which he did so. The "completion certificate" is in a booklet [Prosecution Exhibit No. 18]. The certificate and its butt were completed by Mr. Peniseniasi. According to Mr. Peniseniasi, he wrote 15.12.08 on the "completion certificate". He said, he only realized he did a mistake with the date, when interviewed by Mr. Malakai Seru, on 17th September 2009. He admitted to FICAC officers that he had falsified official documents by writing 15.12.08 on the "completion certificate", instead of 15.7.08.
    
12. In my view, the writing of 15.12.08 was deliberate. In my view, he also altered the "08" to "07" in the year column of the "completion certificate". According to Mr. Samuela Bolalailai (PW1), Mr. Peniseniasi "told him to backdate the completion certificate to 2007, because Mr. Ashwin Jogia requested the same." This was more like a direction to a superior officer by a junior officer. Mr. Bolalailai told Mr. Peniseniasi that he could not backdate the certificate. He was pressured into writing a minute, requesting that Mr. Jogia put his request into writing, which he did so.
    
13. After looking at all the evidence, and hearing all the witnesses, I have come to the conclusion that Mr. Peniseniasi, altered the date in the completion certificate, to assist Mr. Jogia claim his so-called VAT refund. I find, as a matter of fact that, Mr. Peniseniasi Tagikimatuku, with intend to defraud, forged the "completion certificate", by erasing the figure "8", and writing the figure "7" on the year column.
    
14. Given the above, I find Mr. Ashwin Jogia guilty as charged on count Nos. 2 and 4. I also find Mr. Peniseniasi Tagikimatuku guilty as charged on count Nos. 1 and 3. I convict both accuseds accordingly.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of Fiji Independent Commission Against Corruption, Suva
Solicitor for First Accused : Sherani & Co., Barristers & Solicitors, Suva
Solicitor for Second Accused : A. Naco, Barrister & Solicitor, Suva