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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.: HAA0052 OF 2004
BETWEEN:
CHANDRA SHEKAR f/n Shiu Sundar
BIMAL SHANKAR f/n Hari Shankar
Applicant
AND:
STATE
Respondent
Counsel: Mr. M. Raza & Mr. S.D. Sahu Khan – for Applicant
Mr. B. Solanki – for State
Date of Hearing: 20th August, 2004
Date of Judgment: 3rd September, 2004
JUDGMENT
Background
The first appellant was the Director of the National Road Safety Council (NRSC). The second appellant was the Marketing Manager of Above Graphic Limited a company carrying out graphic works and printing.
NRSC used the Company for their design works and printing.
It was alleged by the Prosecution that the first appellant received and the second appellant gave what amounted to secret commissions. These payments being made to secure the Company NRSC’s ongoing graphic works and printing. The charges are set out in detail in pages 13 and 14 of the appeal book.
The appellants were both convicted of their respective charges and on the 31st of March 2004 sentenced to 6 months imprisonment. They have both appealed against conviction.
The State was dissatisfied with the 6 months term of imprisonment imposed and have appealed against the leniency of this sentence.
I propose to deal with the conviction appeal first.
The Conviction Appeal
Ground 1
“The learned trial Magistrate erred in law in convicting the appellants for the offences as charged when the charges as framed did not disclose any offence known to law and/or when the charges were defective in substance and in form”.
The first appellant submitted that counts 1 to 3 remain fatally defective. It is alleged that what is omitted from the particulars in counts 1 to 3 are:
Counts 1 to 3 are famed in exactly the same way but for the amount of money said to have been received. It was submitted that these missing elements were so essential that the conviction could not be sustained as it was founded upon a charge that disclosed no offence.
The same argument was raised in respect of omitted particulars from counts 4 to 6. It was submitted that the missing particulars were:
In support of their argument counsel cited amongst other cases a passage from Smith v Moody [1902] UKLawRpKQB 143; [1903] 1 KB 56 page 61 where Justice Wills said:
“When one comes to the description of the offence itself, then it is quite sufficient if it is described in the terms of the statute, however general they may be. At the same time the old rule must prevail, that whatever is necessary to show that the person convicted has done something which brought him within the words of the statute must be specified.”
It was strongly submitted that the absence of these elements meant that there was no offence known to law disclosed in them, particularly no offence under section 376(a). It was further submitted that while it may be tempting to draw an inference from the evidence of trial about the proper content of the charges nonetheless such evidence cannot remedy the omission from a charge of any essential ingredient (DPP v Etui [1975] 22 FLR 4 at page 7/e).
For the State it was conceded that the charges may well have been loosely framed. However, it was forcefully submitted that the proper section of the act had been quoted and the particulars of the offence contained sufficient material to put both of the appellants on proper notice about the nature of the charges they faced. Counsel sought to distinguish Tui (supra) on the basis that the learned Chief Justice was there dealing with a case in which there was a complete and serious defect in the statement of the offence not merely a lack of accuracy in the particulars.
Further, counsel relied heavily on the cure all provision contained in section 342 of the Criminal Procedure Code that:
“No finding, sentence or order passed by a magistrates’ court of competent jurisdiction shall be reserved or altered on appeal or revision on account of any objection to any information, complaints, summon or warrant for any alleged defect therein in the matter of substance or form or for any variance between such information, complaint, summons or warrant and the evidence adduced in support thereof, unless it be found that such objection was raised before the magistrates’ court whose decision is appealed from, nor unless it be found that notwithstanding it was shown to the magistrates’ court that by such variance the appellant had been deceived or mislead, such magistrates’ court refused to adjourn the hearing of the case to a future day: Provided that if the appellant was not at the hearing before the magistrates’ court represented by a [legal practitioner], the High Court may allow such objection to be raised.”
It was submitted that both appellants were represented and that legal counsel had raised no objection to the form of the counts during the course of proceedings and so accordingly there was no prejudice to the appellants as a result of the omission of any word or phrase within the particulars of the offence.
I find that on a technical reading of the particulars of the offence each charge fails to clearly state that the sums obtained were for an “inducement” or “reward”. The drafter of the charges preferring to use the phrase “as a commission for awarding” the contract. In a technical sense receiving a commission for awarding a contract may have a completely different substantive meaning to receiving a sum of money as an “inducement” or as a “reward” for awarding a contract.
However, I find that this omission is not so grave as to bring the offences within the Tui (supra) category.
When read as a whole the counts clearly relate to allegations of secret commissions and corrupt practices under Section 376(a). It is clear from the particulars of the offences that in the case of the first appellant the allegation was a corrupt action in receiving sums of money for awarding contracts to above Graphic Limited. The first appellant was represented by able counsel. If there be any doubt the proviso contained in section 342 in my mind would meet any defect without causing any prejudice to the appellant.
For similar reasons I find that counts 4 to 6 involving the second appellant while poorly drafted and omitting the language of the statute in the particulars of the offence nonetheless cannot have created any prejudicial effect. Again the defects are not so serious that they fall into the Tui category (supra) and are cured by application of Section 342 of the Criminal Procedure Code.
Accordingly, the first ground of appeal for both appellants fails.
Ground 2
“The learned trial Magistrate did not adequately and/or properly direct himself and/or misdirected himself on the issue of the standard and onus of proof”.
Counsel forcefully submitted that the learned trial Magistrate failed to express in clear language his obligations regarding both the burden and onus of proof in a criminal trial. He said in particular that at various passages of his judgment the learned Magistrate demonstrated by what he said a lack of clarity on these issues.
Counsel submitted that his worship became confused between the traditional burden and onus of proof and the negative averment provided for in section 378 of the Penal Code. By this provision once the prosecution have proved the giving or receiving of monies then the onus falls on the accused to show that the giving or receiving was not corrupt. The Section is one of those rare exceptions where the onus falls on an accused to prove a probable honest explanation for his actions.
Counsel submitted that the lack of clarity in these passages of the judgment leads to the possible inference that the learned Magistrate had applied the wrong basic test. That aspect of the trial gained particular significance it was said because the appellants prime defence was a total denial of either receiving or giving the money. Counsel were concerned that the correct burden of proof had not been placed on the prosecution particularly by reference to this phrase:
“...........Accused 1 himself has not proved to me that he didn’t take the money and Accused 2 that he didn’t give the money”. (page 156)
That passage while creating this impression, was with respect, lifted by appellants counsel out of a lengthy judgment and decision. Isolated consideration of such extracts is often misleading. These individual passages need to be read in the full context of an entire judgment.
I am satisfied that the learned Magistrate was not confused and did indeed have the correct onus and burden in mind. I note in particular that he reminds himself of the most basic requirements at the beginning of his judgment (page 149):
“To begin with I must warn myself that this is a criminal case in which the Prosecution needs to prove all the elements of the offences with which the two accused have been charged................ If prosecution fails to prove one element both the accused are liable to be acquitted.”
And again later in his decision (page 156):
“Therefore in view of all above I am satisfied that prosecution had proved beyond reasonable doubt that Chandra Shekar has received payment as an agent from Bimal Shankar...... .. Accordingly, the burden as laid down in Section 378 of the Penal Code Cap. 17 shifts to the two accused persons to prove to the Court that taking and giving of money in the case was not corrupt.”
The phrase complained of by appellants counsel was itself submitted out of its proper context in full:
“I am satisfied beyond reasonable doubt that the first accused did receive the money from second accused on the basis of PW.1’s evidence supported by the documentary evidence exhibits 1 to 10 and that of prosecution witnesses 2, 3, 4, 5, 6 and 7 and Accused 1 himself has not proved to me that he didn’t take and money and Accused 2 that he didn’t give the money”.
Words and phrases in a judgment on evidence are the only indication of a judicial officer’s thought process. It is important that the words and phrases we use are accurate. However, individual words and collections of phrases need to be read in context.
Any suggestion that the learned Magistrate may have had the burden and onus of proof incorrectly in mind during the course of his judgment is completely rejected. Ground 2 fails.
Ground 3
“The learned trial Magistrate erred in law and in fact in failing to take into account the statement of the second appellant not made on oath and/or adversely commenting on the second appellant not giving evidence on oath.”
It was submitted by learned counsel for the appellant that this ground was primarily based on a comment by the learned trial Magistrate found at page 158:
“In my view this particular Accused 2 (second appellant) had a lot of explaining to do. However, he opted to remain silent. A question asked here is was this a Defence ploy so as not to open up the Pandora’s box.”
In reliance on classic jury trial statements protecting the right to silence and preventing adverse comment about the exercise of that right counsel submitted that the learned Magistrate’s judgment demonstrated a prejudice against the second appellant because of his failure to give evidence. Counsel went on further to point out that in actual fact the second accused had not remained mute. He had given an unsworn statement.
The State replied that in fact the learned Magistrate did take into account the unsworn evidence of the second appellant. This is reflected at page 156 of the trial record. Counsel submitted there was no demonstrable prejudice against accused 2.
In Mano Datt Sharma v R, [1969] 15 FLR 136 Thompson J was discussing the need for transparency and accuracy of process in judgments. At page 139 on an unrelated topic his honour said:
“In so far as the judgment indicates the learned Magistrate’s process of thought in considering the evidence adduced there was nothing to show that he took the defence case and the evidence in support of it into consideration at all........(and later) ............in this case there may well have been good reasons for rejecting the evidence of the accused and of the witnesses called on his behalf. But there is nothing in the judgment to indicate that that evidence was taken into account at all.............it is not simply a matter of implicitly rejecting evidence of an apparently far fetched story told by the accused (or his witnesses).........”.
In a similar case our now Chief Justice commenting on the “bolstering” of a case against one accused from evidence only admissible against another had this to say on the issue of transparency in Avinesh Krishna and Tukoli Visawaqa [1999] 45 FLR 180:
“In the present case it was all the more incumbent on the trial Magistrate to not only clearly identify and deal with the evidence against each accused separately given his assessment of the complainant’s credibility and its apparent indivisibility, but also, because the nature of the defences differed in material respects. It was more than just a bare denial of opportunity.”
It is always difficult when sitting as both a trier of fact and law to separate out those two judicial processes and be careful to transparently and clearly state the principles and propositions upon which one is basing a judgment. The offending passage has two major defects. First it indicates that the learned Magistrate had overlooked the second appellant’s unsworn statement from the dock. Second, it is overt criticism against him for remaining silent. The irresistible inference must be that this influenced the ultimate judgment. That is not acceptable.
In their amplified response to this ground the State submitted that the decision to give unsworn evidence and not to address the presumption but to merely deny the payment was a considered one. Accordingly it was submitted the learned Magistrate had every right to note the deliberate nature of those choices particularly where the burden of explaining “the giving” and “the receiving” lay on these appellants.
The difficulty with that reasoning is that the learned Magistrate didn’t go on to qualify his statement in that way. The learned Magistrate did not, as the State properly concedes, go on to consider the unsworn evidence of the second appellant and its possible impact on the trial. This aspect of the matter will receive further consideration later in this judgment. For present purposes I uphold this ground and find for the second appellant.
Ground 4
“The learned trial Magistrate erred in law in totally omitting to direct his mind to the fact that this was a joint trial and therefore the need to consider evidence against each appellant on each count separately”.
Counsel submitted that it was a primary and fundamental duty of each trial magistrate to correctly direct their minds to the evidence that may be admissible against one accused but which may not be admissible against a co-accused. In reliance on Krishna (supra) counsel submitted that the learned Magistrate failed to clearly identify and deal with the evidence against each of the accused separately. It was submitted that this failure must lead to the inevitable conclusion that the learned Magistrate may well have bolstered the case against one accused by relying on evidence only admissible against the other.
In that regard counsel highlighted:
It was submitted that there was more than a likelihood that the Magistrate had used otherwise inadmissible evidence of a co-accused to bolster the case against his accomplice.
The State’s answer was to simply note the difference between an “assessor” and “summary” trial and submit it was not incumbent on the learned Magistrate in his judgment to be as forceful or transparent as one might be when dealing with a jury or assessors. It was submitted there was no obvious miscarriage of justice. I disagree.
I prefer the reasoning earlier sighted from learned Chief Justice Fatiaki and Justice Thompson (supra). The requirements of a multi accused trial are the same whether the trial is proceeding before a jury/assessors or a judge alone.
The words and phrases used by a learned Magistrate are all that remains on appeal to indicate the judicial thought process in considering the evidence adduced. In this case care was required to indicate that otherwise inadmissible evidence against an accused was not used to bolster the case against him.
In each of the examples given by the appellants the learned Magistrate has taken into account inadmissible evidence against a co-accused or at least that is an available inference from the words used in the judgment. I also uphold this ground of appeal.
Ground 5
“The learned trial Magistrate did not adequately and/or properly and/or misdirected himself on the issue of corroboration”.
Counsel submitted that while the learned Magistrate (pages 11 and 12) reminded himself in his judgment about the need to treat PW.1 as an accomplice he nonetheless did not practically apply the rule and clearly demonstrate that he respected the dangers inherent in reliance on the evidence of an accomplice.
The ground was somewhat refined during argument and came down to this. It was submitted that the learned Magistrate had failed to use admissible and independent evidence as corroborative of the accomplice’s statement.
Counsel referred to the following examples:
“......there is no documentary evidence acknowledgement or signed “as received” by Shekar.
State’s counsel did not come to grips with this particular argument and failed to appreciate that it had been refined to a point of submission that the learned Magistrate had taken into account otherwise inadmissible evidence as independent and corroborative of an accomplice statement. That can’t be so.
The particular requirements of a multi accused trial appear to have been overlooked by the learned Magistrate. No reference was made of the need to consider the “corroboration” question separately in the case of each accused. That is not satisfactory and I uphold ground 5 of the appeal.
Ground 6
“The learned trial Magistrate did not adequately and/ properly and/or failed to consider the defence case”.
It was submitted by appellants counsel that the learned trial Magistrate totally ignored or omitted to consider the defence case. It was said the only reference he made to the defence case was found on page 154 of the record where he said:
“All I have to say in nut-shell is that the Defence case is largely based on the pretext that the allegations made against Chandar Shekar and Bimal Shankar is to sabotage Chandar Shekar from taking the post of Chief Executive Officer of the Land Transport Authority”.
It was submitted that while that was one of the motives for these allegations it was not the defence case. The defence was rather that the first appellant never obtained and the second appellant never gave any “secret commission” as alleged in each and every one of the six counts. The onus was therefore on the Prosecution to prove the allegations set out in the 6 counts beyond reasonable doubt.
The first appellant gave evidence on oath denying the allegations. He also gave explanations of his contact with the second appellant. Counsel also referred to the prosecution evidence of Zarin Ali who testified that the money was for promotions rather than commission. It was further submitted that there was no clear consideration of the evidence of systems within NRSC regarding the awarding of company contracts. The prosecution witness Rajesh Narayan detailed this process for the Court. He also noted that the first appellant had approved his co-operation with the police in the conduct of their investigation.
It was then suggested that there was no reconciliation of the positive evidence of PW.1 that he had never asked the second appellant why he made payments to the first. Defence counsel further criticized the learned Magistrate for failing to properly address the records of interview.
Finally appellants counsel pointed out that the learned Magistrate totally accepted PW.1 as a reliable truthful and credible witness (page 156 (a)(b)) without reconciling the defence evidence of two witnesses attacking PW.1’s integrity. Consideration of their evidence it was said could have caste some doubt on the credibility of PW.1.
The learned trial Magistrate was of course free to reject the defence case on the basis of a strong and overwhelming body of evidence presented by the State. I accept that the learned Magistrate is not required to write all of the relevant evidence in his judgment nonetheless there is a need to demonstrate that he took the defence case and the evidence in support of it into consideration. I repeat the words of Justice Thompson it is not simply a matter of implicitly rejecting evidence of an apparently far fetched story drummed up by an accused or his witnesses. It is rather a matter of demonstrating a transparent thought process of considering and sifting the evidence that was adduced. While the learned Magistrate may have rejected the defence case there was nothing to show that he considered it and the evidence in support of it.
Accordingly I uphold ground no. 6.
Ground 7
“That the learned trial Magistrate erred in law and in fact in failing to consider the character of the appellant in determining the defence case”.
Evidence that an accused has a good character goes particularly to credit but also to the unlikelihood that the accused would have committed the offence (R v Bilas [1966] 1 ALL ER 552). Evidence of good character may be given on the part of the accused by his calling witnesses to give evidence there on, by giving evidence himself or by eliciting it in cross-examination of state witnesses. The character proved:
(a) must be of the specific kind impeached; for example honesty where dishonesty is charged
(b) must be general in character and not particular instances for example general character for honesty but not specific instances of such honesty
(c) must relate to a period proximate to the date of the charge
(d) may even be proved by negative as well as affirmative evidence for example by a witness saying that he has never heard anything against an accused.
At appeal I did not require State’s counsel to address me further on this issue.
Appellants counsel submitted that the learned trial Magistrate totally ignored and/or failed to take into account or consider the evidence of character. I find he was entitled to do so. The so called character evidence came in by way of cross-examination of the Chairman of the NRSC confirming a memorandum published in the press disassociating his organization against any allegations made against the first appellant and acknowledging the accused’s dedicated and diligent service attributing to him the success in the transformation of the business.
I find that evidence barely qualified as character evidence for the first appellant in his criminal trial and would have had negligible value. I find against the first appellant in respect of ground 7.
Ground 8
“That the learned trial Magistrate erred in law and in fact in considering other alleged offences in determining the guilt or otherwise of the appellants”.
This was essentially a submission that the learned Magistrate had used similar fact evidence of unrelated transactions to bolster the prosecution case. In support of that proposition counsel referred me to page 145 of the record. However, when reading page 145 I note the learned Magistrate is merely summarizing the evidence of PW.1. He certainly does not make any finding that he specifically accepts this specific passage of evidence. Indeed from the summary of the evidence it appears this was an unsupported statement which should have been given little weight in the process of the determination of guilt. I do not accept the argument that the learned Magistrate relied on these previous dealings between NRSC and the company “Above Designs” as evidence to support his findings in the instant case and so reject ground of appeal No. 8.
Ground 9
“That the verdict is unsafe, dangerous, unsatisfactory and cannot be supported having regards to the evidence as a whole”.
This submission was made to answer the anticipated application for the use of the proviso.
In the course of the appeal counsel for the State conceded that the learned Magistrate had made errors in particular:
However, State’s counsel submitted that there was a wealth of other evidence that tended to incriminate the first and second appellants and accordingly there was no substantial miscarriage of justice. It was said in particular PW.1 gave sufficiently strong evidence in combination with the documentary exhibits to convict both of the appellants. I disagree.
While PW.1 may have given strong evidence. His credibility was not properly assessed in the light of the attacks mounted upon him by 2 defence witnesses. This evidence was not considered by the learned Magistrate. The use of the documentary evidence was not discreetly considered by the learned Magistrate and there was no clear identification of a thought process rejecting otherwise inadmissible evidence. There was a failure to transparently consider the defence case and the individual cases against each of the appellants. For these reasons as I have earlier said the verdict was unsafe and unsatisfactory. The proviso cannot apply in these circumstances. Ground 9 is therefore upheld.
Conclusion
Appellants counsel argued that for 3 reasons I should not order a re-trial in this matter. They said:
I find none of those reasons motivate me to avoid ordering a retrial.
The appeal is granted. I direct that there be a re-trial. The file is accordingly returned to the Magistrates Court for consideration before an alternate judicial officer. The appellants are to remain on existing bail and appear before the Magistrates Court for a call over of their case on Monday the 20th of September, 2004.
Gerard Winter
JUDGE
At Suva
3rd September, 2004
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