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Hussain v State [2021] FJCA 254; AAU0009.2020 (29 December 2021)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0009 of 2020

[High Court at Suva Criminal Case No. HAC 317 of 2015]

BETWEEN:
NOUSHEEN MEZBEEN HUSSAIN

Appellant

AND:
STATE

Respondent

Coram: Prematilaka, ARJA

Counsel: Mr. M. Yunus for the Appellant

: Mr. R. Kumar for the Respondent

Date of Hearing: 23 December 2021

Date of Ruling: 29 December 2021

RULING

[1] The appellant had been charged in the High Court at Suva on one count of theft contrary to section 291 of the Crimes Act No. 44 of 2009, one count of obtaining property by deception contrary to section 317 of the Crimes Act No. 44 of 2009 and one count of money laundering contrary to section 69(2)(a) and (3)(b) of the Proceeds of Crime Act, 1997 committed in 2012 at Suva in the Central Division. The charges were as follows:

‘First Count

Statement of Offence

THEFT: Contrary to section 291 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NOUSHEEN MEZBEEN HUSSAIN also known as Nousheen Mezbeen Ali, between the 1^st day of January, 2012 and the 31^st day of May, 2012, at Suva, in the Central Division dishonestly appropriated $15,362.78 belonging to Art and Soul Limited with the intention of permanently depriving the said Art and Soul Limited of the said amount.

Second Count

Statement of Offence

OBTAINING PROPERTY BY DECEPTION: Contrary to section 317 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NOUSHEEN MEZBEEN HUSSAIN also known as Nousheen Mezbeen Ali, between the 8^th day of February, 2012 and the 2^nd day of March, 2012, at Suva, in the Central Division dishonestly obtained $1,772.10 from Fiji Revenue and Customs Authority with the intention of permanently depriving Fiji Revenue and Customs Authority of the said amount.

Third Count

Statement of Offence

MONEY LAUNDERING: Contrary to section 69(2)(a) and (3)(b) of the Proceeds of Crime Act 1997.

Particulars of Offence

NOUSHEEN MEZBEEN HUSSAIN also known as Nousheen Mezbeen Ali, between the 1^st day of January, 2012 and the 31^st day of May, 2012, at Suva, in the Central Division used a total of $17,134.88, that are the proceeds of crime, knowing or ought reasonably to have known that the $17,134.88 is derived or realized directly or indirectly from some form of unlawful activity.’

[2] After the summing-up, the assessors had expressed a unanimous opinion of guilty against the appellant on all counts. The learned High Court judge in the judgment had agreed with the assessors and convicted the appellant accordingly. She was sentenced on 31 January 2020 to 18 months of imprisonment on the first count, 02 years of imprisonment on the second count and 03 years of imprisonment on the third count; all sentences to run concurrently. The trial judge refrained from imposing a non-parole period. In addition, the appellant was also ordered to pay a fine of $1000 with a default term of imprisonment of 03 months.

[3] The appellant’s solicitors had filed a timely notice of appeal (19 February 2020) against conviction and sentence. However, the appellant had subsequently filed applications in Form 3 to abandon the sentence appeal and the application for bail pending appeal. The appellant’s written submissions had been filed on 15 May 2020 and the state had tendered its written submissions on 19 November 2020.

[4] The grounds of appeal urged on behalf of the appellant are as follows:

Grounds of Appeal

Ground 1

THAT the Learned Trial Judge erred in law and in fact when he did not consider or direct the assessors to consider that the third count of money laundering was arising out of and related to same facts as in count one (theft) and count two (obtaining property by deception, therefore the rules of double jeopardy or autrefois acquit and autrefois convict restricted a prosecution on third count (money laundering).

Ground 2

THAT the Learned Trial Judge erred in law and in fact when he directed the assessors as follows; ‘...You must take into account the manner in which the witness gives evidence. Was he/she evasive? How did he/she stand up to cross examination?...’, these questions tend to limit the assessors scope to evaluate objectively thus causing substantial prejudice to the appellant.

Ground 3

THAT the Learned Trial Judge erred in law and in fact when he failed to direct the assessor how to approach and what weights to be attached to the exculpatory evidence contained in the caution interview of the appellant, thus infringing the appellant right to a fair trial.

Ground 4

THAT the Learned Trial Judge erred in law and in fact when he failed to direct the assessors and himself to consider that Emma could also be responsible for all the tainted transactions, since there was evidence to suggest that Emma was also part of accounts and admin department.

Ground 5

THAT the Learned Trial Judge erred in law and in fact to adequately place the defence case to the assessors, when he failed to direct or guide the assessors to consider that the:

(i) Complainant used access the company account to check the balance, from which only reasonable inference can be drawn is that he was aware of all the transactions as claimed by the appellant;
(ii) Complainant only reported against the appellant to the police after the appellant had complaint against him for sexual harassment, from which only reasonable inference can be drawn is that he was trying to save himself from prosecution;
(iii) Complainant lied to Courts that Lakalaka is a permanent employee in order to help her, from which an inference can be drawn that he could go to any extend to assist Lakalaka;
(iv) Complainant did not dispute that he had intimate relationship with Lakalaka and Christina; from which only inference can be drawn is that he was using the appellant to hide is intimate relationship from his wife as claimed by the appellant;
(v) Deposit of $2,000.00 made to the appellant account is Nausori, implies that the complainant brought the $2000.00 and handed over to the appellant in Nausori since at that time the appellant was on leave and there is no other evidence advanced by prosecution to show that the appellant may got the money from any other source;
(vi) Complainant was unable to explain the fluctuating wages paid to the appellant, from which only inference can be drawn is that the complainant was aware of all the transaction since he was approving these payment to be made to the appellants account in order for the appellant to give the monies to Lakalaka and Christina;
(vii) PE7 was a crossed cheque thus it cannot be cashed by a third party without the approval of the complainant (account holder), since the cheque was deposited into the appellant account, only inference can be drawn is that the complainant had approved the payment of the cheque into the appellants account, thus causing a substantial injustice to occur to the appellant;
(viii) The Bank Statement of the appellant which shows that she was receiving approximately $25,000.00 as wages or salary, which supported her six month claim she made for tax return from Fiji Revenue and Customs Authority;

• (ix) The facebook message (DE9) which supported the evidence of the appellant and discredited the evidence of PW2 Felicia Verma, as PW2 gave two version of evidence in regards to (D9) in Court. PW2 contended that she does not understand ‘Hindi ‘language, but when shown (D9) she started to explain;
• (x) Christina’s account bank was closed in year 2010 and that the appellant’s contention that PW1 was using the appellant to give money to Christina may be true since there was evidence of PW having extra marital affairs with Christina and that Christina gave birth to his youngest daughter in February 2011.
  

Ground 6

THAT the Learned Trial Judge erred in law and in fact when he failed to direct the assessors and himself to consider the evidence of the defence witness, causing a substantial prejudice to occur to the appellant.

Ground 7

THAT the Learned Trial Judge during the trial commented that ‘this was a boring trial’ which clearly indicates that the Learned Trial Judge lacked interest and enthusiasm in the trial as such he should have recused himself but failed to do so, therefore infringing the appellants right to fair trial.

Ground 8

THAT the Learned Trial Judge erred in law and in fact when he held that the appellant was giving calculated answers despite the fact that the appellant evidence in Court and the Record of Interview conducted during the cause of investigations were very similar in content.

Ground 9

THAT the Learned Trial Judge erred in law and in fact when he did not allow the appellant to clearly elaborate and explain her answers in detail thus infringing her right to fair trial.

Ground 10

THAT the Learned Trial Judge erred in law and in fact when he failed to summon the witness Felicia Verma (PW2) to show her passports details to Judge, Assessors, Prosecution and the Defence when she was allowed to refer to the same and claimed that she was not in Fiji on 10^th February 2012, the non-disclosure of the evidence referred by PW2 has fringed the appellant right to fair trial.

Ground 11

THAT the weight of evidence does not support a conviction for counts one (Theft), count two (Obtaining Property by Deception) and third count of Money Laundering therefore the guilty verdict is unsatisfactory.

[5] The learned High Court judge has summarized the facts of the case as follows in the sentencing order:

3. Brief facts of the case are that: the complainant ran an advertising and marketing business called ‘Art and Soul Ltd’. The offender joined ‘Art and Soul Ltd’ in 2008 as an accounts person and remained there until she was terminated in 2012. The offender gradually built confidence with the complainant as a trusted accounts officer and handled and managed the whole of company’s accounts. The internet banking platform was operated and managed by the offender. She had access to the online banking platform for the company and was given the password to access the bank account to settle the bills, pay the salaries of the staff and make other payments.
   
4. In 2012, the company was struggling to manage the finances, so PW 3 was hired to assist with the running of the business. PW 3 noted suspicious double payments and brought them to complainant’s attention. Upon an inquiry, the bank confirmed that the narratives for the suspicious transfers were false and that the money was going into offender’s bank account. The complainant found suspicious transfers done by the offender to be unauthorised. Upon this discovery, the offender admitted stealing money from Art & Soul Limited. She apologised to the complainant and restituted $ 10,000/- whereupon her service was terminated.
   
5. At the trial, the offender admitted receiving a sum of $15,362.78 into her bank account from Art & Soul Ltd. but denied stealing. The Prosecution proved that the offender had dishonestly appropriated a sum of $15,362.78 belonging to the complainant with the intention of permanently depriving the complainant of the said money.
   
6. The offender also forged the signature of the complainant and provided incorrect and misleading information to FRCA in order to obtain a sum of $1772.10 as a tax refund.
   
   7. The offender received a total sum of $17,134.88 from Art & Soul and FRCA into her bank account. Prosecution proved that the money was generated from two serious predicate offences, namely, Theft and Obtaining Property by Deception thus the money formed proceeds of crime. The offender was fully aware that the money was derived from her illegal activity. She used the financial system to transfer the illicit money from one account to another and for that purpose she used various misleading narration to disguise the true origin of illicit money. As soon as the offender received money into her (salaries) bank account she either withdrew or transferred part of that money to a ‘hidden’ savings account to disguise the true origin of the proceeds of crime. Making withdrawals and transfers from a bank account which is tainted with illegality, the offender was using the illicit money in such a manner so as to disguise the true source of income and to make the money look legitimate and clean.’
      

[6] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.

[7] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal timely preferred against sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follows:

(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

01^st ground of appeal

[8] The appellant based on the observations of the learned High Court judge in Prasad v State [2020] FJHC 52; HAA 19 of 2019 (07 February 2020) seems to complain that the money laundering charge was based on the same evidence for theft and obtaining property by deception and therefore once she was convicted for the 01^st and 02^nd charges she should not have been convicted for the 03^rd charge.

[9] I have no doubt, upon a reading of the summing-up and the judgment, that there has been sufficient evidence to establish all the elements in all three charges. The question posed by the appellant is whether she could have been lawfully convicted on the third charge (not an alternative charge) after she was convicted of the 01^st and 02^nd charges and sentenced separately. She had received the highest sentence of 03 years for the 03^rd charge of money laundering.

[10] Whether there is a legal bar for the appellant to have been convicted of all three counts appears to be a question of law only and if so, no leave is required for this ground of appeal to be taken up before the full court. Given, the judicial remarks in Prasad v State (supra), I think that it is advisable to have clarity on this issue for future litigation and guidance.

[11] However, I see no merit in the appellant’s argument based on autrefois convict or double jeopardy. I also note that the fault element in the third count is not the same as the first two counts.

[12] I have also considered the question of the duplicity of charges in the information in that the physical element in all three counts seems to be similar, if not more or less the same.

[13] It appears that the appellant’s counsel had not raised any objection to three charges being laid against the appellant in the same information at any stage of the trial proceedings.

[14] Section 59 of the Criminal Procedure Act provides for offences to be included in the same charge or information if they are founded on the same facts or form or they are part of a series of offences of the same or similar nature. However, if the trial judge is of the opinion that an accused 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 for any other reason it is desirable to try the accused separately, the judge has the discretion to order separate trials in respect of such offences. The appellant has not cited any statutory provision or judicial authoritative pronouncement to the contrary.

[15] It is therefore clear that the respondent was within the legal framework to prefer the three counts against the appellant in the same information. At the same time, not only did the appellant not complain of any prejudice by having to face all counts at the same trial but also did the trial judge not see any need to order separate trials on the charges.

[16] In my view, the appellant had demonstrated no difficulty in facing all counts at the same trial and taking up her common defence in respect of them.

02^nd ground of appeal

[17] The appellant’s complaint here is that at paragraph 10 of the summing-up the trial judge had taken away the assessors’ ability to evaluate the evidence objectively and usurped their function in terms of assessing the credibility.

[18] There is little merit in this submission. The trial judge had only assisted the assessors in pointing out some common-sense denominations to look for in deciding the credibility of witnesses.

03^rd ground of appeal

[19] The appellant submits that the trial judge at paragraph 13 of the summing-up had not directed the assessors as to what weight they should attach to exculpatory statements in her cautioned interview.

[20] The defence had not challenged the relevant portions of the cautioned interview read in court including the appellant’s exculpatory explanations. However, when one looks at paragraphs 11, 13 and 120-125 of the summing-up it becomes clear that the appellant’s complaint cannot hold much water.

04^th ground of appeal

[21] The appellant asserts that the trial judge failed to direct the assessors and himself that the appellant’s assistant Emma could have been responsible for the tainted transactions.

[22] It does not appear that this kind of proposition had been advanced during the trial even by the trial counsel. Nor such redirections were sought at the end of the summing-up.

[23] In any event, the evidence had directly implicated the appellant in so far as all three charges were concerned and there is nothing to suggest that the uncharged person was responsible for the tainted transactions.

05^th and 06^th grounds of appeal

[24] The gist of all complaints, twelve in number under the 05^th ground and under the 06^th ground, is that the trial judge had not adequately and properly analysed the defence case. All of them are concerned with trial issues. From the submissions, it is clear that what the appellant expects here is for the trial judge to have directed the assessors on the same lines suggested by her appellate counsel.

[25] This is a misconceived argument. As long as the summing-up is objective, well-rounded and fair to both the prosecution and defence, that is what this summing-up is, then no legitimate criticism could be made of it. The trial judge had adequately addressed the assessors on the defence case in paragraphs 83-119 and 120-139. No redirections had been sought with regard to any perceived inadequacy in the summing-up by the trial counsel.

07^th and 09^th grounds of appeal

[26] Both grounds involve personal criticisms of the learned trial judge in that it is alleged that he lacked interest and enthusiasm during the trial and restrained the appellant from elaborating her answers.

[27] However, the elaborate summing-up and equally well-considered judgment suggest otherwise. At no stage, had an application for recusal been made or a mistrial called for by the defence.

[28] The allegations are unsubstantiated. They not only amount to insult and disrespect to the particular judge but also scandalise the system of justice as a whole. They undermine public confidence in the administration of justice. Shall allegations are not to be made lightly.

[29] An appellate counsel engaged in putting down grounds of appeal of this kind without unshakable evidence risks facing or exposes himself or herself to a possible charge/s of contempt of court or of unsatisfactory professional conduct and/or professional misconduct and/or conduct capable of constituting unsatisfactory professional conduct or professional misconduct under Legal Practitioners Act, 2009.

08^th ground of appeal

[30] This complaint is based on paragraph 21 of the judgment in comparison with paragraph 124 of the summing-up.

[31] In paragraph 124 the trial judge had placed the appellant’s explanation as she offered it before the assessors without any comments and in paragraph 21 the judge had expressed his own observations regarding her evidence in general which he is entitled to do. 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 and it is the judge who ultimately decides whether the accused is guilty or not [vide Rokonabete v State [2006] FJCA 85; AAU0048.2005S (22 March 2006), Noa Maya v. The State [2015] FJSC 30; CAV 009 of 2015 (23 October 2015] and Rokopeta v State [2016] FJSC 33; CAV0009, 0016, 0018, 0019.2016 (26 August 2016)].

10^th ground of appeal

[32] The issue raised by the appellant here is a pure trial issue that should have been canvassed during the trial.

[33] If so required, the defence could have challenged Felicia Verma on her passport details or even made an application to the trial judge to require her to place them before court. At no stage had the defence asked for such material as disclosures from the prosecution either.

11^th ground of appeal

[34] This is an omnibus ground of appeal on the premise that the verdict is unsupported having regard to the evidence.

[35] The test for the Court of Appeal in considering the question of whether the verdict is unreasonable or cannot be supported having regard to the evidence is whether upon the whole of the evidence it was open to the assessors and the trial judge to be satisfied with guilt beyond a reasonable doubt, which is to say whether they must as distinct from might, have entertained a reasonable doubt about the appellant's guilt. "Must have had a doubt" is another way of saying that it was "not reasonably open" to them to be satisfied beyond reasonable doubt of the commission of the offence [see Kumar v State AAU 102 of 2015 (29 April 2021), Naduva v State AAU 0125 of 2015 (27 May 2021), Koli v State [2021] FJCA 97; AAU116.2015 (27 May 2021), Balak v State [2021]; AAU 132.2015 (03 June 2021), Pell v The Queen [2020] HCA 12], Libke v R [2007] HCA 30; (2007) 230 CLR 559, M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493)].

[36] As far as this court can see at this stage from the summing-up and the judgment it was open to the assessors and the trial judge to be satisfied with the appellant’s guilt beyond a reasonable doubt; I cannot say that they must as distinct from might, have entertained a reasonable doubt about the appellant's guilt or that it was "not reasonably open" to them to be satisfied beyond reasonable doubt of the commission of the offence.

[37] I would like to add that many of the above matters several grounds of appeal should have been raised by way of redirections as held in Tuwai v State [2016] FJSC35 (26 August 2016) and Alfaaz v State [2018] FJCA19; AAU0030 of 2014 (08 March 2018) and Alfaaz v State [2018] FJSC 17; CAV 0009 of 2018 (30 August 2018) and the deliberate failure to do so would disentitle the appellant even to raise them in appeal with any credibility.

[38] Therefore, I do not see any reasonable prospect of success in appeal on any of the grounds of appeal against conviction.

Orders

1. Appeal against conviction can proceed to the full court on the question of law discussed under the 01^st ground of appeal in terms of section 21(1)(a) of the Court of Appeal Act.
   
2. Leave to appeal against conviction is refused on other grounds of appeal.
   

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL