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Fiji Independent Commission Against Corruption v Bolea [2013] FJMC 347; Criminal Case111.2009 (18 September 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 111/2009

FICAC

VS

TANIELA BOLEA

For Prosecution : Ms. Waqabaca
For Accused : Not present .

Judgment

[1] The accused has been charged with the four counts of Abusing Office contrary to section 111 of the Penal Code Cap 17.

[2] The particulars of the charges are as follows:

Count One:

Taniela Bolea on or about the 12th day of January, 2004 at Suva in the Central Division being a person employed in the public service as Chief Executive Officer of Fiji Audio Visual Commission, in the course of or in relation to his public office and in abuse of the authority of that office, did an arbitrary act, in approving the payment of $7,248.48 to Australian New Zealand (ANZ) Bank for Visa Business Card Number 4999-6400-0007-3187 without the necessary approval of the Chairman of the Fiji Audio Visual Commission Board thereby causing prejudice to the rights of the said Commission.

Count Two:

Taniela Bolea on or about the 8th day of April 2004 at Suva in the Central Division being a person employed in the public services as Chief Executive Officer of Fiji Audio Visual Commission, in the course of or in relation to his public office and in abuse of the authority of that office, did an arbitrary act, in approving the payment of $4,286.13 to Australian New Zealand (ANZ) Bank for Visa Business Card Account Number 4999-6400-0007-3187 without the necessary approval of the Chairman of the Fiji Audio Visual Board thereby causing prejudice to the rights of the said Commission.

Count Three:

Taniela Bolea on or about the 18th day of August 2005 at Suva in the Central Division being a person employed in the public service as Chief Executive Officer of Fiji Audio Visual Commission, in the course of or in relation to his public office and in abuse of the authority of that office, did an arbitrary act, in approving the payment of $2,930.94 to Australian New Zealand (ANZ) Bank for Visa Business Card Account Number 4999-6400-0007-3187 without the necessary approval of the Chairman of the Fiji Audio Visual Commission Board thereby causing prejudice to the rights of the said Commission.

Count Four:

Taniela Bolea on or about the 31st day of July 2007 at Suva in the Central Division being a person employed in the public service as Chief Executive Officer of Fiji Audio Visual Commission, in the course of or in relation to his public office and in abuse of the authority of that office, did an arbitrary act, in approving the payment of $823.59 to Australian New Zealand (ANZ) Bank for Visa Business Card Account Number 4999-6400-0007-3187 without the necessary approval of the Chairman of the Fiji Audio Visual Commission Board thereby causing prejudice to the rights of the said Commission.

[3] The accused pleaded not guilty for all the counts and the hearing was commenced on 07/06/2010 and continued on 08/06, 10/07, 07/08, 24/08, and 04/09/2010. The accused was present and Mr. Bale represented him on these days.

[4] When this was called again on 11/01/2011 to fix a new hearing date the learned defence counsel informed the Court that the accused had left the country and was unaware about his new whereabouts.

[5] Accordingly a bench warrant was issued to arrest him and after numerous adjournments on 11/10/2011 the Court granted the defence counsel to withdraw from this trial. In pursuant to section 171(1) of the Criminal Procedure Decree the FICAC was also granted permission to proceed in absence of the accused and the state closed the case on 19/11/2012.

[6] The FICAC filed the closing submission and when this was mentioned before me on 31/07/2013 the learned counsel for the prosecution informed that she has no objection for me to deliver the judgment based on the evidence presented in the Court.

Summary of Evidence

[7] During the hearing the prosecution called 04 witnesses and tendered 32 documents as exhibits. Following witnesses were called by the prosecution.

PW1- Babara Malimali (A legal counsel in FAVC)

PW2- Jone Tikoca (Accountant in FAVC)

PW3- Josua Turaganivalu (Former board member of FAVC)

PW4- Malaki Seru (Interviewing officer from FICAC)

Also the following documents were tended as Exhibits by the Prosecution:

P1 : Appointment letter of DB dated 3.9.01 (D-1: p. 56)

P2 : DB's first contract dated 12.9.01 (D-2: p. 57)

P3 : DB's second contract dated 1.10.04 (D-3: p. 68)

P4 : FAVC Act (D-4: p. 79)

P5 : Section 9(1) of FAVC Act (p. 83)

P6 : Travel Policies and Procedures (D-5: from p. 86)

P7 : FAVC Board Meeting Minutes of 22.4.02 (D-31: p. 126)

P8 : Board Minutes of 11.2.02 (D-30: p. 120)

P9 : Barbara Malimali's letter of complaint dated 14.12.07 (D-39 of 18.5.10)

P10 : Staff Meeting Minutes of 26.4.07 (D-20: p. 106)

P11 : Approval of FAVC Chairman dated 29.12.06 after sighting more details on D-34 (D-36 of 9.9.09)

P12 : Memo from JT to FAVC Chairman dated 20.12.06 rejecting approval

(D-34 of 9.9.09)

P13 : Unsigned and rejected version of D-36 (D-35 of 9.9.09)

P14 : Payment Voucher (D-33) for VCS $2,832.59 dated 29.12.06

P15 : Cheque No. 1494 of 12.1.04 for $7,249.48 (D-6 p. 92)

P16 : Payment Voucher (D-17 p. 93) dated 12.1.04 for $7,249.48

P17 : VCS dated 1.12.03 to 28.12.03 for D-7 (D-8 p. 94)

P18 : VCS dated 1.03.04 to 28.03.04 for $4,286.13 (D-11 p. 97)

P19 : Payment Voucher (D-10 p. 96) dated 8.04.04 for $4,286.13

P20 : Cheque No. 1651 of 8.04.04 for $4,286.13 (D-9 p. 95)

P21 : VCS dated 29.06.05 to 28.07.05 for $2,930.94 (D-14 p. 100)

P22 : Payment Voucher (D-13 p. 99) dated 18.08.05 for $2,930.94

P23 : Cheque No. 2676 of 18.08.05 for $2,930.94 (D-12 p. 98)

P24 : VCS dated 29.05.07 to 28.06.07 for $823.59 (D-19 p. 105)

P25 : Payment Voucher (D-17 p. 103) dated 31.07.07 for $823.59

P26 : Cheque No. 4278 of 31.07.07 for $823.59 (D-16 p. 102)

P27 : Payment Voucher (D-40) dated 12.01.04 for $9,854.74

P27A : Letter to ANZ of 12.01.04' re: Travelers ChequesCash' ref P27

P27B : Per diem breakdown attachment to P27A

*D : Email from Vani Tamanitokula to CEO & Wayne Covell c.c. Bulou Coka &

JT dated 24.01.04 're: Details of Travel – Sundance/NATPE' ref. P27/27A/27B: details of market registrations & hotel bookings.

P28A : Payment Voucher (D-43) dated 08.05.07 for $1,642.85

P28B : Per diem breakdown attachment to P28A

P29A : Payment Voucher (D-42) dated 08.05.07 for $4,872.63

P29B : Per diem breakdown attachment to P29A

P30 : Payment Voucher (D-21 p. 110) dated 11.04.06 for $1,324.92

P31 : JT's Analysis of VCS Details form regarding P30 of 06.04.06 and Chairman's ok of

11.04.06

[8] PW1 in her evidence said she knew the accused and was privy to the personal files of the staff. She was also aware of the travel policy of FAVC (P6) and said only the accused was given a credit card. In cross examination she admitted that she has some differences with the accused about the work and in re- examination mentioned she complained about these to FICAC with some others.

[9] PW2 stated that he joined FAVC in 2002 and presently working as an accountant there. He also said visa card payments for the CEO (the accused) should be approved by the Chairman according to travel policy of FAVC (P6). PW2 said on 12/01/2004 a payment voucher (P16) was raised to pay the visa card of the accused and it was not approved by the chairman. Based on that $7249.48 was paid through a cheque (P15). The accused told PW2 to pay it and he would get the approval later. PW2 also said the correct procedure was to get the approval of Chairman before payments were made.

[10] Again $4286.13 was paid by a voucher (P19) on 08/04/2004 and it was also not approved by the chairman. Third instance was on 18/08/2005 when $2930.94 was paid for the visa card payment of the accused without chairman's approval through a voucher (P22). And on 31/07/2007 voucher (P25) was raised to pay $832.59 for the visa card of the accused without approval of chairman. All these occasions the accused approved the payments and directed PW2 to pay for the visa card. When PW2 inquired about the receipts he was informed that the receipts would be tendered later.

[11] In cross examination and re–examination too PW2 maintained the same position that the accused did not obtain the approval from the Chairman for his payments of visa card and he approved it himself.

[12] PW3 in evidence said that the accused was employed in the public service.

[13] PW4 executed the search warrant and obtained the documents relevant to the case. She also interviewed the accused and this statement was marked as P32.

[14] The prosecution closed their case after that and since the accused was not present the Court granted them to file closing submission and this was filed on .

[15] Now I would briefly consider the relevant law provisions applicable in this case.

The Law
[16] The accused has been charged with four counts of Abuse of Office contrary to section 111 of the Penal Code. Section 111 states that :

"Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanor."

[17] Based on the above section the prosecution has to prove following elements in this offence.

[a] The accused

[b] Being employed in the public service

[c] Does or directs to be done an arbitrary act

[d] In abuse of the authority of his office

[e] And is prejudicial to the rights of another

[18] Viscount Sankey LC in Woolmington v DPP (1935) AC 462 observed that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law".

[19] In State v RODNEY AUGUSTINE FONG HAC 300 OF 2011S His Lordship Justice Temo in his summing up defined the burden of proof and standard of proof in criminal trial as follows :-

"As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that 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."

Analysis of the Evidence

[20] From the evidence in the trial I find that there were no dispute about the first two elements (accused and at the time of the incident he was employed in a public service). The learned counsel for the defence in evidence in chief of PW1 also conceded this. Section 135(3) of the Criminal Procedure Decree has given the Court to consider any admission made by a party during the course of proceeding or a trial and based on this I find that there is no need to analyze about the above two elements.

[21] Therefore only disputed facts in this trial are the following elements which the prosecution has to prove through the evidence.

[a] Does or directs to be done an arbitrary act

[b] In abuse of the authority of his office

[c] And is prejudicial to the rights of another

[22] In my following paragraphs I would carefully consider these elements based on the evidence presented in the trial.

Does or directs to be done an arbitrary act

[a] In State v Eminoni Bola HAC 29 of 2005 Her Ladyship Justice Shameem defined the arbitrary act in the following manner:

"In law an arbitrary act is an unreasonable act, a despotic act, an act which is not guided by rules and regulations but by the personal wishes of the accused".

[b] In Tomasi Kubunavanua High Court Case 4 of 1992 again it was held that:

"An arbitrary act is an autocratic act which is not guided by principles, rules and regulations, but an act guided by his "whims and fancies".

[c] The Fiji Audio Visual Commission (FAVC) Board approved a credit card for the CEO (the accused) for the official functions. According to the FAVC Travel Policy and Procedure (P6) this has to be used for official functions and upon return details of the expenses are to be submitted to the Chairman for the approval.

[d] From the witnesses called by the prosecution it was revealed that in these four occasions the accused had approved the payments and no approval were ever sought from the Chairman in pursuant to P6. These actions of the accused can be described as arbitrary actions on the part of the accused and sufficient to prove this element.

[23] In abuse of the authority of his office

[a] In Eminoni Bola Abuse of Office was defined as :

"When someone abuses the authority of his office, he uses his position for some illegitimate agenda, some reason which is not proper reason according to institutional procedure. He acts in bad faith, for an improper motive to harm someone or to show someone an advantage or favor".

[b] In Beniamino Naveli v State CAV001 of 1994 it was observed :

"What differentiates something done in abuse of office from something not done in abuse of office in many cases will be the state of mind of the accused. An act done or direction given which is otherwise within the power of authority of an officer of the public services, will constitute an abuse of office if it is done or give maliciously with the intention of causing loss or harm to another, or with the intention of conferring some advantage or benefit on the officer".

[c] According to Travel Policies and Procedures (P6) the details of expenses need to be submitted to the Chairman for approval before payment. Even though the accused did not give evidence in the trial his caution interview was marked as P32. In that he also agreed that the approval has to be taken from Chairman for the payment but qualified this by saying that this is not practical in running a business.

[d] From these evidence it is clear that the accused was aware about the procedure but deliberately did not follow this. Also using his authority as the superior officer he managed to get PW2 to pay for his visa card payments. By doing so he has abused the authority of his office. Also his reason for not following the procedure can't be considered as a valid ground as FAVC is a public body and these rules make its operations transparent.

[24] And is prejudicial to the rights of another

[a] In Eminoni Bola the element of prejudice is considered in following manner:

"When a person is prejudiced, his interests are put at a disadvantage. Generally, all public servants have the right to do their jobs in a way which does not expose them to official or public criticism or to allegations that they are showing favour to any person"

[b] The accused did not follow the procedure and had directed for payments to be made by the accountants. By behaving in that manner he has prejudiced the rights of FAVC which is a public body.

[25] Since the accused is absconding from this trial I have no opportunity to hear his defence. In his caution interview he also admitted that the Chairman only had the authority but this is not practical in a business.

[26] From all these evidence I am satisfied that the prosecution has proved all these counts beyond reasonable doubt against the accused.

[27] I find the accused guilty for all the counts and convict him accordingly.

[28] 28 days to appeal
18/09/2013

H.S.P.Somaratne
Resident Magistrate