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State v Cinabilakeba [2015] FJMC 9; Criminal Case 1271.2011 (26 January 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 1271/2011

STATE

V

TIMOCI CINABILAKEBA

Counsel: Ms. Korodrau for the State
Ms.Malimali for the Accused

JUDGMENT

[1] The accused has been charged with following offence in this Court .

RECEIVING A BRIBE: contrary to Section 135(1)(a)(ii) and (b)(i) of the Crimes Decree 2009.

Particulars of Offence

TIMOCI CINAVILAKEBA on the 30th day of June 2011, in Suva, in the Central Division, while being a public official, received the sum of $450.00 from YOGESH LAL, without lawful authority, as a benefit for himself, with the intention that the exercise of his duties as a public official would be influenced.

[2] As the accused pleaded not guilty for this offence the hearing was conducted on 22nd July, 04th August 2014 and 08th January 2015. For the prosecution's case 06 witnesses (05 police officers and a civil witness) were called and for the defence the accused and another witness gave evidence.

[3] At the end of the hearing the learned counsel for the accused made an oral submission and the State opted to file closing submission which they filed today .

SUMMARY OF EVIDENCE

THE PROSECUTION'S CASE

[4] PW1 was ASP Joseph Low who is in police for 32 years and at that time was Officer-in-Charge of the community police. He was in his office on that day and around 3pm a person came and complained that a police officer demanded money from him and this was to be given near Village 6 on that day. PW1 deployed police officers around that place and around 6pm the complainant came there. He noticed the accused also and they started moving from that place side by side and PW1 with his officers started following them. PW1 also noticed the complainant giving something to the accused and then the accused started moving from that place and then later started running. Even though PW1 started chasing him he missed the accused and then the police regrouped. A police officer told him Jim was the accused, even though PW1 has not seen him before. The witness lodged a report to the Central Police Station. PW1 further said if the accused been offered bribe he could have reported the matter to Market police post which was not more than 01 minute to the crime scene. PW1 also identified the accused in the Court.

[5] In cross- examination PW1 said he was 10-15 meters away and saw the transaction taking place. As the accused started running he could not be arrested and PW1 was also not aware DC Mosile was there. In re- examination PW1 said it would have been common sense for the accused to report the matter to market police post which was near instead of reporting to a police station 3km away.

[6] PW2 was Cpl 2789 Lepani who conducted the caution interview of the accused at Central Police Station on 01st July 2011 and this was marked as PE-01. In cross- examination PW2 said that the accused denied the incident and said one Yogesh tried to bribe him on that day.

[7] PW3 was Sgt 2789 Sunil Kumar who was the crime Sargent of Raiwaqa police station on 30th June 2011. The accused came to him and told a person tried to bribe him. PW3 asked the accused why he failed to arrest that person. Accused came fast to police station and he was not normal at that time. PW3 further explained that if someone tried to bribe a police officer that person need to be arrested at the spot. In cross- examination PW3 said he was at the car park when the accused came to him and DC Mosille was leave on that day. The accused paid the taxi fee and DC Mosille gave him the money next day. PW3 told them to make statements and he was also the IO about the alleged bribe. He did not question Yogesh about the bribe. In re- examination PW3 said the investigation was conducted at Totoga police station about this incident and therefore was not aware if Yogesh was questioned by them.

[8] PW4 was Yogesh Lal who had an internet café and on 30th June 2011 the accused approached him. PW4 asked what he was after and told that there were 04 police officers and the accused wanted $450.00 for them and told to meet him near the Village 06 that day. His wife arranged the money and told him to report the matter to police. PW4 informed Inspector Jokatama about that was told to go ahead with that. PW4 waited for the accused near village 06 and he came and asked if everything was ok and then took the money. ASP Low arranged the police officers to watch the incident. PW4 earlier told the accused to come home but the accused told it was not safe. PW4 also gave $450.00 in $50 notes and the serial numbers were noted by the police.

[9] In cross-examination the witness said he did not report as he was not right state of mind and the accused was demanding and he was taken for questioning by the police on 29th and released on 30th. The accused came to see him around morning about phone records and later came alone in the evening and told the witness that he got evidence to charge him. The witness agreed to identify the Solomon boys but he did not agree to show them in the evening near village 06. The accused asked for compensation and said there were 04 police officers and asked for $400.00. Later this was increased to $450.00 . Inspector Jokatana asked him to give this money to the accused so the police can catch him red handed. PW4 was at Kids Park and the accused came from bridge and asked to come and in the middle of the bridge took the money. There was no discussion about the boys and only thing the accused was asking was if everything was ok and the money was with the witness. Also during the cross- examination both parties agreed sum of $450.00 was given to the accused and this was noted as an agreed fact. In re- examination the witness said he gave the money as the accused was demanding and as the witness was scared and the money was in the envelope. Earlier the witness agreed to identify the boys but he was not supposed to bring them to the accused.

[10] PW5 was PC Solomone who is in police force for 09 years and was instructed to note the serial numbers of the note. He was also posted close to Village 6 by ASP Low and saw the accused coming. He knew the accused as they trained together as recruits when they joined the police. He told Inspector Jokatana about that.

[11] PW6 was Inspector Jokatana and he received a call from a former unit mate from FBC who told about Yogesh. Later Yogesh told him about a police officer from, Raiwaqa police station demanding money and he was going to give the money. The witness advised that it was an offence and as Yogesh was insisting informed his superior ASP Low about that. Yogesh came with his wife to the police station and ASP Low devised a plan to catch the accused. The police stationed around village 06 and saw the accused coming to bridge and waving to Yogesh to come there. They were walking side by side and in the middle of the bridge Yogesh gave the envelope. The accused walked briskly away from the place. The witness also said that the Central police station was closer to the scene. In cross- examination the witness said he and ASP Low told Yogesh it was an offence but Yogesh told them that he has to give the money to get off from the accused. The State closed the case after that and the accused was given his right pursuant to section 179 of the Criminal Procedure Decree.

THE DEFENCE CASE

[12] The accused said in June 2011 he was in Raiwaqa police station in CID unit and managed to catch a suspect named John Trail who was involved in Theft of Laptops. They made a deal with him not to charge him in return for his help to arrest others and based on his information arrested one Yoges. First he denied but after knowing about John Trail he also agreed to assist with the investigation. He helped to bring Solomon Boys and was instructed by Sgt.Sunil to release from custody. Next day he went with DC Mosile and some other police officers to meet Yogesh and got some phone numbers but they were not working. Later Yogesh told the accused that he would bring the boys and also told not to let his wife know about that. Yogesh told him that he would bring the boys near Village 6 around 6pm and the accused told DC Mosille about that. He with DC Mosille went near Village 6 and saw Yogesh alone. He met Yogesh near Asha Street and asked about the boys. Yogesh showed an envelope and asked the accused to drop the charges as his wife did not know about that. Yogesh also told that there was some money for him and other police officers. They keep walking and in the bridge and there as Yogesh was still insisting the accused took the money. He was new to these things and he wanted to inform his superiors about that. While coming back in a taxi he talked with DC Mosille and saw the money. After reaching the police station he told Sgt.Sunil about that and told to make a statement. Later police came and took him to Central police station where he saw ASP Low, his batch mate (DC Solomone) and Yogesh already there. The police asked about the envelope and he told that it was given to Sgt.Sunil. Later he was sent home and police charged him for this offence. On that day when he was with Yogesh he did not see any other police officers chasing him or standing near to village 06. He waved to DC Mosille that he was going with Yogesh . The accused also did not ask for a bribe nor did promise Yogesh he would stop investigation. In cross- examination he said he knew Yogesh was selling stolen laptops and through Yogesh he wanted to get more information about others. Yogesh offered to show boys at Village 6 but instead gave an envelope and asked to drop the charges. The accused did not arrest Yogesh and knew the envelope contained money. The accused knew the money was given to drop the charges and from $450.00 he took $3.50 pay the taxi fare. In re- examination again the accused said when he took the envelope he knew it contained money.

[13] DW2 was DC Mosille said he was called by the accused to arrest Solomon boys and also interviewed Yogesh. He went with the accused to arrest the boys and the accused went to talk with Yogesh. DW2 did not see any boys and instead Yogesh gave an envelope. In the taxi he saw it contained money and did not see ASP Low following them. In cross- examination the witness said he is in police for 10 years and if someone offered him bribe he would arrest that person on the spot. The defence closed their case after that and opted to make oral submission which was granted.

[14] In her oral submission the learned counsel for the accused said even though her client took the money he had no intention and therefore there is no Mens Rea on his part. Therefore the State has failed to prove this case beyond reasonable doubt.

THE LAW

[15] In Woolmington v DPP [1935] AC 462 it was held that

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482).

[16] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING , EVIDENCE AND PRACTICE 2010 page 542).

[17] In STATE v DELANA [2014] FJHC 336in his summing up his Lordship Justice Madigan defined burden placed on the prosecution in the following manner:-

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

[18] The accused is charged with one count of Receiving a Bribe contrary to section 135(1) (a) of the Crimes Decree No 44 of 2009.

[19] Section 135 of the Crimes Decree states that :

"(1) A public official commits an indictable offence (which is triable summarily) if —

(a) the public official without lawful authority or reasonable excuse —

(ii) receives or obtains a benefit for himself, herself or another person

(b) the public official does so with the intention —

(i) that the exercise of the official's duties as a public official will be influenced

[20] Therefore the prosecution has to prove beyond reasonable doubt the following elements;

1. The accused being a public official
2. Without lawful authority or reasonable excuse

100. Receives or obtains a benefit for himself, herself or another person

4. With the intention his duties as a public official will be influenced
   

ANALYSIS

[21] In this case there is no dispute that that the accused is a public official. Also during the hearing it was agreed by both parties that the accused received this bribe. The defence taken by the accused in the hearing was that he had no intention to take this amount. As put in a simplified manner by the defence counsel in her brief closing submission, the accused was stupid in taking this money but had no intention to commit this offence.

[22] The crux of the accused case was that he was involved in an investigation to arrest some Solomon boys and the complainant (Yogesh) agreed to show them near Village 06 that evening. Based on that information he with DC Mosille went to the place and found only the complainant present. He walked with the complainant along the bridge where the complainant offered him the envelope containing money and asked him to accept it and drop the criminal investigations. First the accused refused but later he accepted. His motive was to report this to his superiors and after traveling to Raiwaqa police he made a complaint to Sgt.Sunil about this incident and also handed the money. He also denied seeing other police officers at the Village 06.

[23] But I find this version is not credible based on number of reasons. When Yogesh offered him the money the accused did not arrest him which any reasonable police officer would have done in such a situation. This was highlighted by police witnesses called by the state as well as the DC Mosille(the defence witness) who agreed that if someone offered him a bribe he would be arrested at the spot. The explanation given by the accused for this glaring omission was that he was new to this and was excited. But this is hard to accept considering that the accused was a senior police officer like DC Solomone who was his batch mate with 06 years' experience. Also even after accepting this amount which he knew was offered as a bribe the accused went straight to Raiwaqa police station to report. Strange thing is that there was Market police post 3-4 meters away as well as the Central police station which was also a walking distance. Why he failed to report this to the nearest police post or station which could have led to make a quick investigation as well as to arrest Yogesh who supposedly offered bribe to a police officer who was on duty? Also after accepting this amount ($450.00) he used some amount for that to pay for his taxi fare to Raiwaqa police station. Can this be expected from even a junior police officer? Would not he be aware that he should have handed over full amount to police and using part of that bribe as a taxi fare could have affected further investigations? All these grounds have raised serious doubt about the credibility of the accused.

[24] Now I would also briefly consider the prosecution version. Even though 06 witnesses were called I find that main witnesses were Yogesh, ASP Low and Inspector Jokatana. Yogesh in his evidence said he was arrested by police officers from Raiwaqa for receiving stolen properties and after that the accused who was part of that team demanded money from him to drop the charges. He was afraid to report this to police but his wife reported the matter to Inspector Jokatana . In his evidence Inspector Jokatana confirmed this by saying one of his workmate from FBC reported about this incident to him. Later getting instruction from ASP Low Yogesh went near village 06 and after meeting the accused gave the envelope in the bridge.

[25] As mentioned earlier Inspector Jokatana said in his evidence that after receiving the information he informed his superior (ASP Low) and they devised a plan to arrest the accused when he accept the bribe. After this transaction took place the police moved to arrest the accused but he got away and was later arrested at Raiwaqa police station. This was corroborated by ASP Low also in his evidence. Even though all these witnesses were cross- examined vigorously by the learned counsel for the accused the defence failed to raise a single doubt about their evidence. Also there were no serious contradictions in their evidence and also their demeanors were acceptable to me compared to the accused.

[26] Another reason led me to accept the evidence of ASP Low and Inspector Jokatans was that being police officers they would not have any motive to lie to this Court and put a fellow brother police officer (accused) in to trouble. Therefore through their evidence I find that the accused after seeing these officers about to arrest him fled from the scene. This would explain the reason why he failed to report this alleged bribing to Market police post or Central police Station which were close by and instead went all the way to Raiwaqa police station. From these I also infer that after seeing that he was noticed by the police officers for accepting the bribe the accused with DC Mosille went to Sgt.Sunil and reported the incident as a precaution and to shift the blame to the complainant.

[27] After considering all these I find that the accused had the intention to accept this bribe and this was done without any lawful authority and with the intention to influence his duties. Therefore I decide that the State has proved all the elements in this case beyond reasonable doubt.

[28] I find the accused guilty for this charge and convict him accordingly.

[29] 28 days to appeal

26th January 2015

H.S.P.Somaratne
Resident Magistrate