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State v Rao [2013] FJMC 78; Criminal Action 77.2011 (14 February 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Action No: 77/2011

THE STATE

V

JOSEPH BENJAMIN RAO

• Ms. Jayneeta Prasad, State Counsel for the Prosecution.
• Mr. John M. Rabuku for the Accused.
  

JUDGMENT

1. The accused Joseph Benjamin Rao stands charged on a count of 'General Dishonesty' punishable under section 323 of the Crimes Decree No 44 of 2009. The alleged offence was committed between 01.04.2010 and 07.04.2010.
   
2. The particulars of the offence states that the accused committed this offence by making false representations to the staff of the Fiji National University with the intention of dishonestly obtaining a gold medal.
   
3. The State called seven witnesses during the prosecution and the accused opted to give sworn evidence for the defence case.
   
4. The onus is with the prosecution to prove following elements of the offence in order to secure a conviction. And it should be proved beyond any reasonable doubt.
   
   • The identity of the accused person,
   • During the time period of the incident,
   • Committed an act,
   • With the dishonest intention,
   • To obtain a gain from another person.
     
5. At the outset the court notes that there is no disagreement by either party on the facts relating to the identity of the accused person, the period of time which the offence committed and the fact that the accused received a gold medal at the graduation.
   

Evidence of the Prosecution

6. The State's first witness was Dr. Mahendra Reddy, the Dean of School of Hospitality and Tourism at Fiji National University [FNU]. He explained the procedure of awarding gold medals by the university for those who had achieved the highest grades. Any student who had achieved 4.0 or above Grade Point Average (GPA) will be qualified to claim a gold medal and the final decision rests with the Gold Medal Committee.
   
7. Dr. Reddy stated that the accused of this case came to meet him on a particular day in the year 2010 and inquired him whether he is qualified for a gold medal. Then Dr. Reddy has asked his secretary to fill a Gold Medal Award Nomination Form to check whether he is qualified to claim one. He said that he did not proceed thereafter with the nomination form as the GPA of the accused was 3.93. He stated that he did not sign the form and the matter ended there.
   
8. On the day of the graduation he has seen that the accused was awarded a gold medal. Then the witness has called his secretary to clarify this and found that academic office has allowed him to get the gold medal.
   
9. In cross examination the witness stated that his queries led to the conclusion that Mr. Gaya Prasad, the academic registrar has approved the accused to receive the medal at the graduation ceremony. The witness went on to state that the gold medal approval procedure does not allow any student to come and claim freely without any checks. In case if Mr. Gaya Prasad's had approved it the witness stated that he should have called for the nomination form from his office and therefore in evidently there will be two checks on the application. He confirmed that the academic office did not call the application form of the accused from his office.
   
10. When the learned counsel questioned Dr. Reddy as to who made the mistake, the witness avoided by saying that he does not want to answer. However the witness confirmed that it was not his fault. Witness stated that he did not proceed further after he was informed that the matter had been reported to the police.
    
11. Ms. Preetika Singh who was the secretary of Dr. Reddy testified next. She stated that on Dr. Reddy's instructions she referred the accused to Ratchel in order to calculate his GPA. After the calculation it was found that the GPA was 3.93 and the witness stated that it was communicated to the accused by Ratchel. She stated that after the graduation the nomination form of the accused was submitted to the academic department on their request.
    
12. During the cross examination she stated that the students were not allowed access to the student database where the marks held. She stated that the nomination form was requested by the academic office after the graduation and it was an unusual practice. She confirmed that no one can obtain a gold medal without going through necessary checkings.
    
13. Ms. Ashwini Prasad had been worked as a Public Relations Officer at the time of the incident. She took the stand as the third prosecution witness. She has a telephone conversation with the accused before the day of the rehearsal and she has informed him that she cannot do anything and referred him to Mr. Gaya Prasad. Then she stated that she called Mr. Prasad and informed about this. Further she stated that she left the mobile number with Mr. Prasad to call the accused. Later she has done a story on the accused person about his achievement.
    
14. During the cross examination the witness stated that the accused did not demand a gold medal and he only requested it. Therefore she referred him to Mr. Gaya Prasad.
    
15. Mr. Gaya Prasad gave evidence as the Assistant Academic Registrar during the time in question. He initially explained the responsibilities he had during the time of graduation ceremony held on 07.04.2010. The witness had been in overall supervisory capacity of the graduation.
    
16. The witness stated that on a prior day to graduation Ashwini called him regarding an issue of the accused. He was informed by Ashwini that the accused Mr. Rao has come to meet the Vice Chancellor to inquire as to why he was not given an opportunity to receive a gold medal.
    
17. Witness stated that on three prior occasions the accused has approached him and said that he is entitled for a gold medal. But the witness has repeatedly told him that there is no nomination for him. However on the last occasion the witness has asked Ashwini to send the accused to him.
    
18. Mr. Prasad stated that he was extremely occupied with work during that period and due to the constant insistence of the accused he made an administrative decision on spot to allowing the accused to go through the graduation to collect a gold medal and sought out the problem later. When the learned prosecutor questioned on the conduct of the accused person, the witness stated that he was told by the accused that he has met the criteria as far as his calculations. However Mr. Prasad admitted that he did not verified this information from the Dean of the school. After awarding the gold medal he has found that the accused was actually not qualified.
    
19. In cross examination the witness admitted that the decision to award a gold medal is exclusively with the gold medal committee and he cannot intervene with their decision. The court notes that the following questions and answers which were recorded during the cross examination.
    

Q : In this case first you did not check? [Whether there was a decision by the committee to award a medal]

A : Yes.

Q : You did not see a nomination form?

A : No.

Q : The Committee did not sit for Mr. Rao?

A : No.

Q : You have checks and balances in the system?

A : Yes.

Q : That was not followed by you?

A : No.

Q : Even a student insists you have to follow the procedure?

A : Yes.

20. Witness went on to admit that it was a wrong administrative decision of him. He admitted that he did not make even a phone call to Dr. Reddy in order to confirm on the accused person's nomination application. He disclosed that there were expectations of the university to promote it among the general public as it was their first graduation under the name of Fiji National University.
    
21. The court posed following questions in clarification at the end of witness's evidence.
    

Q : At any time did the accused show any document to you to say that his application is approved?

A : No he did not show any document.

Q : At any time did he tell you that his application has been approved by the Dean?

A : No.

Q : All what he asked was whether he is qualified for the gold medal?

A : As far as his calculations he said he is eligible for a gold medal.

22. Graduation Co-ordinator Ms. Keshani Tamani called as the fifth witness of the prosecution. She stated that the name of the accused was not printed in the booklet they printed for the graduation ceremony in 2010. This had happened as a result of his low GPA. She stated that the accused had 3.39 and the gold medals awarded for those who have achieved 4 or above GPA. However the accused came on the following Monday after the graduation to engrave his name in to a gold medal. After he handed over his medal the witness has called for the nomination form and found that he was not eligible to claim a medal.
    
23. During cross examination the witness stated that the nomination form of the accused was not signed by the college Dean, the Academic Registrar and the Records officer of the Academic office. Witness stated that she does not know the person who made the decision to award a gold medal to the accused. She said that Mr. Gaya Parsad asked her to get an empty gold medal at around 7.30 am on the day of graduation. She has later found that it was for the accused. She confirmed that none of the procedures were followed in awarding that gold medal to the accused.
    
24. Mr. Jone Dakuvula the Registrar of the FNU testified next for the prosecution. He stated that this was his first experience in the capacity of a Registrar. He was guided by Mr. Gaya Prasad the Acting registrar. Witness stated that on the day of the rehearsal the accused came to speak with Mr. Gaya Prasad. After the discussion Mr. Prasad has come to the witness and stated that 'this student claims for a gold medal. The Dean has approved that'. Witness states that on trust he took the decision allowing the accused to go ahead with the graduation. This was taken on the recommendation of Mr. Gaya Prasad. Thereafter he explained the circumstances occurred after the graduation. When the accused was informed about this he has stated that he was humiliated in public and therefore he will report this matter to the Prime Minister and the media. Then the witness has asked him to wait until he gets all documentation.
    
25. In cross examination the learned counsel asked whether any of the procedural requirements to award a gold medal is based on trust and the witness answered that trust is also important. He stated that his trust was based on Mr. Gaya Prasad's recommendation. And he continued to state that this decision was taken because of Mr. Gaya Prasad. The witness admitted that the incident was occurred as a result of his wrong decision.
    
26. Final witness of the prosecution was Ms. Ratchel Archana who did the calculation for the GPA of the accused. She stated that the accused had good individual grades but the GPA was below 4. She has explained this to the accused person. On the day of the rehearsal the accused had insisted again for the gold medal and later that afternoon she has seen the accused passing in a bus signing his thumb up. After the graduation the witness has called the accused and was told that he got the gold medal arranged. The witness did not inquire any further but she knew that the accused had spoken to some higher authority.
    
27. She explained the procedure of awarding a gold medal and emphasised how important the decision making authority to cross check the grades of the applicant. In case if it was a late submission and the claimant was eligible for a medal the university could have directed the claimant to attend the next graduation ceremony in order to collect the medal. She stated that the Registrar was aware of this.
    
28. The prosecution closed their case by producing the caution interview statement and the Gold Medal Award Nomination From as agreed documents of the case.
    

Analysis of Prosecution Evidence

29. The prosecution case is predominantly based on whether the accused person had any dishonest intention at the time of his representations to obtain a gold medal.
    
30. Having reviewed many of the authorities Lord Lane C.J concluded in R v Ghosh [1982] EWCA Crim 2; [1982] Q.B 1053, 75 Cri.App.R 154,CA that there were two aspects to dishonesty, the objective and subjective, and the tribunal of fact, in determining the issue, would have to go through a two-stage process before it could convict the defendant.
    
31. It was further held that 'in determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest'.
    
32. The Crimes Decree on three occasions in section 128(3), 290 and 348 identify the same principles above mentioned. It defines dishonest as;
    

Dishonest means –

(a) Dishonest according to the standards of ordinary people; and

(b) Known by the defendant to be dishonest according to the standards of ordinary people.

33. The contention of the prosecution is that on the face of the accused person's conduct was dishonest. The standard knowledge of the ordinary people is that when the accused was informed about his GPA by Ms. Ratchel Archana he was confirmed about his possibility to claim a gold medal. Yet he went on and inquired the same from Mr. Gaya Prasad. Prosecution argues that by the said act it is apparent that the accused possessed a dishonest intention of obtaining a gold medal.
    
34. In the present case it is clearly understood that, awarding of a gold medal in the Fiji National University is a progression of events. The students are not allowed to access the database which has all their educational details and grades obtained at the examinations. It is the respective colleges which will submit the student's Grade Point Averages (GPA) who have achieved the highest grades at the examinations to the gold medal committee. Thereafter the committee will convey their findings to the academic office in order to organise the presentation of the day of graduation ceremony.
    
35. View of this court is that dishonest is something that is in the mind of an accused person. It can be considered as a 'special mental state'. Then the issue will be if the accused acted in an honest mind there cannot be deemed dishonest merely because the ordinary people would have regarded it as dishonest to embark on that course of conduct.
    
36. The accused Mr. Rao was made to understand by the support staff the process that have to be followed to obtain a gold medal. The decision making was solely entrusted with the administration of the university and he did not even have the access to his own database profile in the system. It is clear that Dr. Reddy who was the Dean of his college was not the one who actually delivered the result of his GPA calculation. It was by Ms. Ratchel Archana. Thereafter he was directed to Mr. Gaya Parsad who was the Assistant Academic Registrar by Ms. Ashwini Prasad. Mr Gaya Parsad added something more to the conversation he had with Ashwini, he said that he was told by Ashwini that the accused came to meet the Vice Chancellor.
    
37. It is significant to note the conduct of the accused person. He did not made any attempt to pursuit his goal by using any unlawful means. He was told by Mr. Parsad on three prior occasions that there is no nomination received for him. But there is no evidence to say that Mr. Parsad's decision was based on the GPA calculation of the accused. There can be two different conclusions for 'no nomination received'. Either it can be the final outcome after the calculation of his GPA or to inform that he is awaiting his nomination form from his college.
    
38. The repeated inquires of the accused directs the court to conclude what Mr. Gaya Parsad was meant that he is awaiting the nomination of the accused from his college. This position is further strengthened by the answer of Mr. Prasad which he stated during the examination in chief. "..I said as an administrative arrangement we could put him through the graduation then we can sought-out the problem later". In fact Mr. Gaya Parsad is the one who called the accused to the rehearsal venue on the last occasion. If not this incident wouldn't have ever happened.
    
39. It is evident that Mr. Gaya Prasad's decision to allow the accused person to claim the gold medal was erroneous. This was incurred by his own action which was taken without having any consultations of the college Dean or glancing through his GPA. My view is that the accused knew that Mr. Prasad is at the liberty of perusing necessary documentation before arriving at any conclusion. What Mr. Rao did was to pursuit every available opportunity to lawfully obtain his medal. This attitude is not a strange one to expect from a young enthusiastic student who is at the edge of claiming a gold medal which can support his future prospects in many ways. In light of this position the court will not proceed to evaluate evidence given by the accused.
    
40. For the given reasons, view of this court is that it is doubtful to conclude whether the mind of the accused person acted dishonestly. Thus the accused is benefitted from the doubt.
    
41. Accordingly Joseph Benjamin Rao is acquitted from further proceedings.
    
42. Twenty eight [28] days to appeal.
    

Pronounced in open court,

Yohan Liyanage
Resident Magistrate

14th February 2013