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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAM283 OF 2013
BETWEEN:
KENI DAKUIDREKETI
AND:
FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION [FICAC]
Counsel : Mr. Keene B QC with Mr. Clarke W, and Ms. Cole
M for the Applicant
: Mr. Blanchflower M (SC), with Ms E. Yang (JC)
andMs. Puleiwai for the State
Date of Ruling : 25th April 2014
RULING
.—(1) Any offence may be charged together in the same charge or information if the offences charged are—
(a) founded on the same facts or form; or
(b) are part of a series of offences of the same or a similar nature.
(2) Where more than one offence is charged in a charge or information, a description of each offence shall be set out in a separate paragraph of the charge or information, and each paragraph shall be called a count.
(3) Where, before trial or at any stage of a trial, the court is of opinion that—
(a) an accused person may be prejudiced in his or her defence by reason of being charged with more than one offence in the same charge or information; or
(b) for any other reason it is desirable to direct that the person be tried separately for any one or more offences charged in a charge or information –
the court may order a separate trial of any count or counts in the charge or information.
Second Count
Statement of Offence (a)
ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.
Particulars of Offence (b)
KENI DAKUIDREKETI between about 31st March 2004 and 21st September 2004, at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $2,000,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.
Fourth Count
Statement of Offence (a)
ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.
Particulars of Offence (b)
KENI DAKUIDREKETI between about 16th November 2004 and 29th November 2004, at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $900,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.
Sixth Count
Statement of Offence (a)
ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.
Particulars of Offence (b)
KENI DAKUIDREKETI between about 28th February 2005 to 28th April 2005, at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a Government Grant of $1,000,000.00 FJD disbursed to Vanua Development Corporation Limited through the Native Land Trust Board to be used as security for a loan provided to PacificConnex Limited by Dominion Finance Company Limited, which was prejudicial to Native Land Trust Board and indigenous Fijians.
Eighth Count
Statement of Offence (a)
ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.
Particulars of Offence (b)
KENI DAKUIDREKETI between about 27th April 2005 and 3rd July 2007 at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman of Vanua Development Corporation Limited in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a Government Grant of $1,000,000.00 FJD disbursed to Vanua Development Corporation Limited through the Native Land Trust Board to be used as security for overdraft and loan facilities provided to PacificConnex Limited, later renamed PacificConnex Investment Limited, by the Australia and New Zealand Banking Group Limited, which was prejudicial to Native Land Trust Board and indigenous Fijians.
Tenth Count
Statement of Offence (a)
ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.
Particulars of Offence (b)
KENI DAKUIDREKETI between about 23rd September 2005 and 29th September 2005, at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman' of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $1,000,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, then renamed PacificConnex Investment Limited, which was prejudicial to Native Land Trust Board and indigenous Fijians.
He claims that he does not know the particular acts alleged to be the foundation of each offence and even at an overview level, it is clear that different defences would be available to him, if he is to focus on one office at a time.
"The rule against duplicitous counts in an indictment originated as early as the seventeenth century. See, for example, Smith v. Mall[1676] EngR 492; (1623) 2 Rolle 263 (81 ER 788); R.v. Stocker (1696) 5 Mod 137 (87ER 568). It may be, as suggested by Salhany in "Duplicity – Is the Rule Still Necessary?", (1963) 6 Criminal Law Quarterly 205, at pp 206-207, that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanor and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. See, generally, R. v. Sadler (178) 2 Chit 519; R. v. Hollond [1794] EngR 2213; (1794) 5 TR 607 (101 ER 340), per Lord Kenyon C.J. at p 623 (p 348 of ER).See, as to the need for distinct consideration in relation to penalty, R.v. Stocker; R. v. Sadler; R. v. Morley (1827) 1 Y.&J.221 [1827] EngR 282; (148 ER 653);Cotterill v. Lempriere [1889] UKLawRpKQB 184; (1890) 24 QBD 634, per Lord Coleridge C.J.at p 637. See, as to the availability of a plea in bar, R.v. Robe (1735) 2 Str 999 (93 ER 993); Davy v. Baker [1769] EngR 69; (1769) 4 Burr 2471 (98 ER 295); R. v. Wells; Ex parte Clifford (1904) 91 LT 98; R. v. Surrey Justices; Ex parte Witherick (1932) 1 KB 450."
"The question arises – what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five. If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery C.J., in a case where it was being considered whether an information was bad for duplicity: see Jemmison v Priddle [1972] 1QB 489, 495. I agree respectfully with Lord Widgery C.J., that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances."
and later in the same Judgment Lord Diplock stated:
"The rule against duplicity ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature ... were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the 18th century, to charge them in a single count of an indictment."
"A stabbing B and C with a knife five times"
(33) The multiple acts involved in "A stabbing B and C with a knife five times" could not be regarded as anything other than two offences (i.e. the stabbing of B and the stabbing of C). It would be neither legitimate nor fair to charge them as one offence in a single count.
"The word duplicity is used in a rather ambiguous sense... First there is a case where it appears on the face of the indictment, or particulars of the indictment, that a count is charging more than one offence. It may sometime be legitimate to look at the depositions in this context (see Greenfield [1973] 1 WLR 1151). That has been referred to in the course of the argument as true duplicity. Secondly, there is a case where, although the indictment is good on its face, it appears at the close of the prosecution case that the evidence establishes that more than one offence was committed on the occasion to which a particular count relates. Perhaps that is best described as divergence or departure, but it often seems to be called duplicity... in whatever sense one uses the word duplicity. It is confined to those two situations. But even if a case is not within either the first or the second of those situations, there may be cases where, in the interests of justice, it may be right to make the prosecution split a count or elect on what particular charge they are going to proceed."
"What is the principle which distinguishes between [cases where one count is appropriate and cases where there should be several counts]?...one finds that the explanation is given in somewhat inappropriate language, namely, that the test is whether the acts were all one transaction. That is a phrase hallowed by time, but not, in my judgment, of particular assistance in dealing with a particular problem. I find more assistance from somewhat different language used by Lord Parker CJ in Ware v Fox [1967] 1 WLR 379. 'Then Lord Widgery CJ quotes from what Lord Parker CJ had said at p. 381...and went on: 'I think perhaps that the phraseology of Lord Parker is more helpful to me than the phraseology often found in the text books, and I think that what it means is this, that it is legitimate to charge in a single information one activity even though the activity may involve more than one act. One looks at this case [i.e. Jemmison v Priddle] and asks oneself what was the activity with which the appellant was being charged. It was the activity of shooting red deer without a game licence, and although as a nice debating point it might well be contended that each shot was a separate act, indeed that each killing was a separate offence. I find that all these matters, occurring as they must have done within a very few seconds of time and all in the same geographical location are fairly to be described as components of a single activity, and that made it proper for the prosecution in this instance to join them in a single charge." (Emphasis added)
"if the particulars of a count can sensibly be interpreted as alleging a single activity, it will not be bad for duplicity, even if a number of distinct criminal acts are implied."
JanakaBandara
Judge
At Suva
Howards Lawyers for the Applicant
Office of the Fiji Independent Commission Against Corruption
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