IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 018 & 040 of 2007S

THE STATE

v.

PITA KONI ALIFERETI
PELI KETE DOVIYAROI

OFFICIAL CORRUPTION: CONTRARY TO SECTION 106
OF THE PENAL CODE CAP 17

Hearing: 15 July 10 September 2008

Summing Up:15 September 2008

Counsel: Ms. A. Driu and S. Puamau for the State
Mr. S. Leweniqila for Pita Alifereti
Mr. H. Rabuku for Peli Doviyaroi

SUMMING UP

1.	Ladies and Gentlemen Assessors

2.	We have reached the stage in the trial where it is necessary that I, sum up to you.

3.	During the course of summing up. I will give you certain directions on the law. You must accept those directions, regardless of what counsels may have submitted to you, in their closing statements in this trial.

4.	You must keep in mind the directions I give on the law, when you retire to consider your verdict. It will be necessary that I refer to certain aspects of the evidence and how they may relate to the essential elements of the offence of Official Corruption: contrary to section 106 of the Penal Code, Cap 17. You are to consider these along with all the other evidence you have heard in this trial.

5.	As Assessors, your primary task is to consider carefully all the evidence called and determine their truth or otherwise. On matters of fact, you are free to make up your own minds and reach your own conclusions.

6.	You are required to determine the truthfulness of the evidence adduced by the prosecutor and the defence. Having done that, be satisfied that each of the elements of the offence charged are proven or not, to the required standard of proof.

7.	You have heard closing submissions from all three counsels. Each have put to you their view of the evidence and how it should be assessed. In so doing, they were doing what they were duty bound to do. Their remarks were intended to assist you. 

8.	If you do not agree with what counsels have said, you are free to reach you own conclusion on the facts as you see it from the evidence in this trial.

9.	The same applies to me [the Judge], if I am expressing a view of the facts that is not the same as yours, you may reject it. If I omit or overlook to mention facts that you consider is important, you must take them into account. If I stress evidence which you think is unimportant, you must disregard the fact that I stressed it.

10.	In arriving at your conclusions, you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any advise or suggestions made to you by anyone, no matter how well meaning it may be.

11.	In assessing the evidence, you are at liberty to accept the whole of a witnesses evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

12.	In the course of any trial, there are bound to be some inconsistencies in the evidence of a witness or with that of another. You are to ask yourselves; did the inconsistency relate to peripheral matters or did the inconsistency go to the core of the witnesses evidence. Was it of sufficient significance to affect his or her credibility? You may also find that the evidence of a witness is so inconsistent that it has to be rejected in its entirety.

13.	At the end of the prosecution case, I advised defence counsel that there was a case to answer. I explained to them the options their clients had in law. Both, Pita Koni Alifereti [Accused 1] and Peli Kete Doviyaroi [Accused 2] gave sworn statements from the witness box and also called witnesses. These options were given to them because there is no obligation on the accused to give evidence. They are presumed innocent until proven to be guilty as charged following a trial. 

14.	As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community, which qualifies you to be judges of facts in this trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourself whether it accords with common sense or is it contrary to common sense and experience.

15.	At the conclusion of this summing up, I shall adjourn so that you may retire and deliberate on your verdicts. You are free at that time to discuss the case amongst yourselves but with no one else. However, you must form your own individual opinions. When you are ready, the court will reassemble. You will then be asked to state your individual opinions in Court. You will not be asked for the reasons for your opinion. Your opinions need not be unanimous, but it is desirable that they are.

Onus and standard of proof

16.	In this trial and as all criminal trials, the onus or the duty to prove the case against the accused rests entirely with the prosecution. It is the prosecution that prefers the charges in this case and it is to them that the law imposes the duty to prove the charges they have brought against each of the two accused in this trial.

17.	That duty never shifts from the prosecution – it always rests with them. In this context, we are all reminded that in Fiji, every person charge with an offence is presumed innocent until proven guilty according to law.

18.	The standard of proof required is that of beyond reasonable doubt. That means that before you can find the accused guilty as charged you must be satisfied so that you are sure of their guilt. If you have reasonable doubt about their guilt you must find them not guilty. You apply this consideration for each of the charge laid against each of the accused. 

The Charges

19.	In this trial Pita Koni Alifereti and Peli Kete Doviyaroi are charged as follows:

i)	 Pita Koni Alifereti with three counts of Official Corruption, contrary to Section 106(b) of the Penal Code cap 17;

ii)	Peli Kete Doviyaroi one count of Official Corruption, contrary to section 106(a) of the Penal Code Cap 17;

20.	You are required to make separate assessment of the evidence as it relates to each of the elements of the charges against each accused person and be satisfied beyond reasonable doubt on each of the element in each count.

The Elements of the Charges

21.	The first accused Pita Koni Alifereti is charge with corruptly giving money and other property to three people named in the particulars of the three charges he faced in this trial: Suliasi Sorovakatini, Peli Kete Dovoyaroi and Josefa Tapele. 

22.	The prosecution must prove beyond reasonable doubt, five essential elements of the offence of Official Corruption under section 106(b) of the Penal Code Cap 17:

Count 3, 5 & 7

1.	that Pita Koni Alifereti on the dates alleged;

2.	corruptly gave;

3.	Suliasi Sorovakatini/Peli Kete Doviyaroi/Josefa Tapele, a person employed in the Civil Service;

4.	Payments by way of cash and other property;

5.	On account of acts to be done or afterwards to be done by him in the discharge of his office in the civil service

23.	For count 5, the person employed in the Civil Service is Peli Kete Doviyaroi and for count 7; it is Josefa Tapele. Josefa Tapele was acquitted by this court of the charge laid against him. You must not allow that fact to influence how you consider the charge against Pita Koni Alifereti [Count 7 in the Information].

Count 4 

24.	The prosecution must prove beyond reasonable doubt each of the following elements of the offence of Official Corruption, contrary to section 106(b) of the Penal Code Cap 17

1.	That Peli Kete Doviyaroi on the dated alleged;

2.	A person employed in the civil service;

3.	Corruptly received

4.	Property by way of cash and other payments;

5.	On account of acts done and afterwards to be done by him in the discharge of the duties of his office

Nature of Evidence adduced

25.	The nature of the evidence adduced by the prosecution in this trial to prove the charges in the information against each of the accused persons have been of three kinds: the caution interview statements; witnesses sworn evidence in court and the voluminous documentary exhibits tendered during the trial. The prosecution called a total of 46 witnesses.

26.	For the accused Pita Koni Alifereti apart from himself, they called 2 other witnesses in his defence. For Peli Kete Doviyaroi it was the same. The defence also tendered documentary exhibits.

27.	I stress that in reaching your respective decisions on the evidence, you must consider all the evidence in the trial.

28.	I need to give you directions on each of these kinds of evidence adduced by the prosecution and what the law requires, that you keep in mind when considering them:

i)	Caution interview statements: 

These statements records answers given by the two accused persons Pita Koni Alifereti and Peli Kete Doviyaroi, to questions that were put to them during police investigation. Following a trial within trial, I ruled that they are admissible as evidence in the trial because of their relevance to the issues for determination in the trial. There are two specific directions I must give you directions regarding these statements: i) they are not prima facie evidence of the truth of the matters stated therein. It is for you as assessors to determine their truth and to accept them or not and ii) in answering questions put to them, there were several instances in which an accused person gave answers that implicated the other accused person. An example: in answer to Q148, Q154 and Q159 Pita Alifereti answered that Peli Kete Doviyaroi said to him that the money he was receiving from him on those occasion was for him [Doviyaroi] and Josefa Tapele. In those instances if you accept what Pita Koni Alifereti said as the truth, it is only evidence of the fact that he gave those monies to Doviyaroi. Those answers are inadmissible in law against Tapele.

You heard the evidence of the three interviewing officers, PW 23 ACP Nasir Ali, PW 35 Inspector Isireli Tagicaki and PW 36 Rev Kuruveivali [formerly a Detective Corporal], who gave detail evidence in court covering the circumstances in which the interview of the three accused persons was conducted. You must carefully consider the answers the accused persons gave to their interview questions and ask yourself if the answers are the truth or not and if you accept it as the truth of what each accused person said, you may take them into account when considering proof for each of the elements of the offence that must be proven beyond reasonable doubt by the State;

ii)	Witness Oral testimonies:

This category of evidence was given under oath by 46 prosecution witnesses and 2 defence witnesses each for Pita Koni Alifereti and Peli Kete Doviyaroi in addition to their own sworn evidence. In evaluating the evidence, you must carefully recall the demeanour of the witness and the consistency of the evidence given by each and how they stood up to cross examination.

iii) Prior Inconsistent Statements

In this case both accused gave sworn statements that contradicted material particulars directly relevant to the proof of certain elements of the offence charged, to which they earlier gave, to the police in their caution interview statements. Which version of the same facts is the truth? You must be satisfied which version is credible. The one closer in time to the events which are covered by the caution interview statements or the much later in time statements, which only came out in the context of the trial and for the first time. 

Your common sense will be the best way to try and resolve this obvious contradiction. You may ask: Why did Pita Alifereti wait until he has heard all the prosecution evidence against him before he claim that the payments he gave to the three civil servants were commissions and not payment for favours he received from them, as he said to the police in answer to his interview questions? It is for you to decide which version you believe.

iv The Documentary exhibits:

Both the prosecution and the defence adduced exhibits to prove their respective assertion of the facts. You should consider these in your assessment of the evidence. All these exhibits will be available to consult during your retirement to consider your verdicts.

v)	 Repina Wholesalers

You heard a lot of evidence during this trial about payments being made to Repina Wholesalers or invoices submitted by Repina Wholesalers, yet the person charged is Pita Koni Alifereti and not Repina Wholesalers. You heard the evidence of the Deputy Registrar of Companies Abhi Ram [PW3] who said Repina Wholesalers is a business name registered by Pita Koni Alifereti under the Business Name Act to operate a wholesaler business. Its registered officer was the residence of Pita Koni Alifererti at 3 Shrii Raman Place, Namadi Heights, Suva. Pita Koni Alifereti is the sole owner of the business. 

In law this means that Repina Wholesalers is the trading name under which Pita Koni Alifereti operates and they are one and the same.

29.	The two accused persons are not required to prove anything under our system of justice – they are innocent until proven guilty in a court of law. In this trial Pita Koni Alifereti and Peli Kete Doviyaroi chose to call witnesses. That is their right to exercise.

30.	I will now briefly discuss the elements of the offences charged in the Information against each of the accused. In so doing I will refer to evidence covering each of the elements of the offence. In this context, the fact that I refer to some of the evidence does not mean that you have to accept my view on it. You may have you own conclusions, given the totality of the evidence in this trial. You are at liberty to reach you own conclusion.

31.	I must direct you that in law, that just because someone corruptly received something, it does not necessarily follow that the person who gave that something gave it corruptly. The converse is also true i.e. a person may corruptly give cash and other payments to someone who receives it without corrupt motive or intention. 

Elements of the Offence of Official Corruption and the evidence

32.	Each of the elements, referred to above, of the offence charged against each of the accused must be proven on evidence, beyond reasonable doubt before you can find the accused guilty as charged.

Pita Koni Alifereti

33.	This accused is charged with three counts of official corruption: contrary to section 106(b) of the Penal Code. These are for

i)	Count 3:

a)	Pita Koni Alifereti between 1 May 2000 and 31 March 2001;

b)	Corruptly gave;

c)	Suliasi Sorovakatini a person employed in the Civil Service;

d)	Property by way of cash and other payment totalling $113,541.40;

e)	On account of acts done and to be done afterwards by him in the discharge of his duties as principal Accounts Officer of Ministry of Agriculture, Fisheries and Forests [MAFF].

ii)	Count 5: the elements are similar to count 3 above; except for c) substitute Peli Kete Doviyaroi; d) the amount is $8230.00 and e) duties as storeman;

iii)	Count 7: the elements similar to count 3, except for the following variations for c) Josefa Tapele; d) the amount is $253.32; d) duties as senior account officer

34.	In terms of the elements of the offence to be proven in each of the three counts of Official Corruption against Pita Koni Alifereti, I will first set out what may be taken by you as not in dispute which are essential elements of the offence charged;

Matters alleged in the charge, not disputed

35.	The following matters are not in dispute as regards the charges against Pita Koni Alifereti:

i)	That Suliasi Sorovakatini, Peli Kete Doviyaroi and Josefa Tapele were the Principal Accounts Officer, Storeman and Senior Accounts Officer in the MAFF during the period alleged in the charges and were civil servants employed in the Fiji Civil service;

ii)	That all the payments in cash and property that Pita Koni Allifereti given to the civil servants named in counts 3, 5, and 7, he admits he did give them;

36.	In the light of the above, you may take as proven that for each of Count 3, 5 and 7 in terms of the essential elements to be proven by the prosecution, element a, b, c, and d. The only elements that is for you consideration are as follows:

i)	Did Pita Koni Alifereti corruptly give those payments in cash and property;

ii)	What were the acts done and to be done afterwards by each of the three civil servants in their official capacities in consideration of the payments they each received from Pita Koni Alifereti?

37.	As Assessors, the first question you are to ask is: Did Pita Koni Alifereti corruptly gave those payments? It that regard it is important that I give directions on the meaning of the word ‘corruptly’ in the context of the charge in the Information in this case.

38.	‘Corruptly’ does not mean dishonesty. It means purposefully doing an act which the law forbids as tending to corrupt. In other words the person who gives corruptly must be aware that the transaction is a corrupt one.

39.	In the context of section 106(b) of the Penal Code Cap 17, ‘corruptly’ must mean giving payments in cash and property purposefully, knowing that in doing so the recipient of that giving will do something now or in the future or both in his official capacity that is unlawful and or illegal in favour of the giver. The giving of the payments must be linked in time and or circumstances with the consideration, that is, act to be done now and afterward, in this case, by either Suliasi Sorovakatini, Peli Kete Doviyaroi or Josefa Tapele, acting in their official capacities. 

Were the payments corruptly given?

40.	With the direction above in mind, I will now refer to certain evidence that is relevant in your consideration of the issue of whether Pita Koni Alifereti corruptly gave all those payments which he admitted he gave to the three civil servants.

41.	In the case of Suliasi Sorovakatini, the payments in cash and the purchase of motor vehicles for him, is alleged to amount to $113,541.00 in total. These payments were made by Pita Alifereti to him. These payments and property paid to Suliasi Sorovakatini are summarised in the evidence of PW 34 Clive Hudson [the Senior Fraud Investigator from NZ], especially Exhibit P175, which summarises each of the payments that was made by this accused person. They are also set out in the answers to the Questions put to Pita Alifereti during his interview. The dates of the payments, the cheque numbers for each of the payments are summarised in the scheduled provided by Clive Hudson at exhibit 175(B) and which were extensively referred to by PW23 ACP Nasir Ali in his evidence in chief.

42.	In the case of Peli Kete Doviyaroi [relevant for Count 5], the detail of the payments made to him by Pita Alifereti is summarised by Clive Hudson in exhibit 176. Pita Alifereti in his sworn statements did not dispute that made those payments. The making of the payments are not per se unlawful or illegal. 

43.	These payments made by Pita Alifereti to Suliasi Sorovakatini, Peli Kete Doviyaroi and Josefa Tapele: did he corruptly gave them, that is, was motivated by an unlawful purpose, 

44.	I refer you to the evidence that would show light on the motivation behind these payments. I refer you to the answers given by Pita Alifereti to the following questions in his police interview statements [Exhibit P 84]: 

Q 59: Do you know or had seen Sakiusa taking money from any other supplier?

Answer: I know of Peter Chang he was always complaining that Sakiusa and other staff of MPI are always asking him for money and dalo and I said to him why you want to give and he said ‘You know same as you, don’t give no business’ 

[Page 9 Caution Interview of Pita Koni Alifereti]

Q149: The payments made to Suli, apart from the lunches, where were they made?

Answer: Mostly during our lunch together. I would give my company cheque to him for the amount he request and then he will give the cheque for my company and MH. If you see the payment vouchers, I hardly sign them because they bring the cheques to me. Some times I feel irritated because this people pester me to give money for favour of giving our cheques because the orders are no problem because they give us open LPO’s. If I refuse to give favours, I might be victimised no more open orders and delay in giving payments. Though I am familiar with the Financial Regulation as I had worked for Agriculture before, but the trend has changed to open LPO now.

Q212: Earlier on you had also mentioned that you had given $10,000.00 to Sakiusa Bole for the purchase of his twin Cab and that Sakiusa Bole had paid back $2000. Can you tell us how this payment was made.

Answer: It is the same thing as I had mentioned earlier on in the case of Suliasi that I pay less from the amount I suppose to give him per order.

Q213: In other words, he did not pay in that $2000 by cash?

Answer: No he did not pay me cash, they know that every order they give us they come back and ask for money.

Q 214: Do you mean to say that it was the same arrangement with other officials, Peniasi Kunatuba, Tapele, Epeli Kete as you mentioned?

Answer: Yes that is true, that is the arrangement with everybody as I have to win back from Suncourt, to get business for MH and my company, as this had carried from the Commodity Development framework (CDF) 

[Pages 33 and 34 Caution Interview of Pita Koni Alifereti] 

45.	In answer to Q274, Pita Alifereti answered that ‘the only thing he is guilty of is giving money to official of agriculture when they ask for it’ There is an admission here that what he was doing was wrong. Carefully evaluate these answers as evidence, bearing in mind that whatever conclusion you reach must take into account the totality of the evidence in the trial.

46.	From the above, you may find that Pita Koni Alifereti deliberately gave those payments in cash and kind to buy favours. He admits that he made the payments to regain orders that Suncourt was getting and he objective was get those orders to be given to MH and his company Repina Wholesalers. 

47.	In this context you may also consider the methodology adopted referred to answer to Q149 quoted above, involving the exchange of envelopes with cash cheques in them for open LPO’s from Suliasi Sorovakatini. The motive in these giving of payments and other property to the three civil servants is stated by Pita Koni Alifereti himself in his answer to Q80 of his police interview, that for the payments he gave he was given favours by the civil servants.

48.	Pita Koni Alifereti in his defence regarding these payments submitted to you that all those payments were commission payments. They were made in a business environment in 2000 and 2001, where such payments, he claims is, standard business practice out there in the real world. He further provided his Income Tax Return [Amended Assessment] for 2000 and 2001 [Exhibit D 10] to prove that his claim for commissions were approved by FIRCA.

49.	It was further submitted that Pita Koni Alifereti kept detail records of his payments to Suliasi Sororvakatini, Peli Kete Doviyaroi and Josefa Tapele, Peniasi Kunatuba, Samisoni Ulitu and Kenneth Cokanasiga, because it was his intention to claim it against his taxable income for years 2000 and 2001. In court under oath, Pita Alifereti claim these payments were commission. 

50.	In the specific case of the Pajero, Pita Koni Alifereti bought for Suliasi Sorovakatini, his evidence is that is was a loan to be repaid. Exhibit D 11 was tendered on behalf of Pita Koni Alifereti to show four deposits amounting to $54,890.00 being made into the ANZ bank account of another company owned by Pita Koni Alifereti between 30 September 2005 and 31 May 2006. This payments were claimed by Pita Alifereti to be repayments by Suliasi Sorovakatini of the loan he gave for the purchase of the Pajero. In this regards, you must consider the clear and unchallenged evidence of PW34 Clive Hudson how a scheme of double payment was developed to pay for the Pajero that Suliasi Sorovakatini receiving from Pita Alifereti: Exhibits P 175(D) & P 175 are relevant.

51.	You must carefully consider this claim, in the absence of any admissible evidence from the defence that those payments were in fact made by Suliasi Sorovakatini. The second aspect of the payments, I need to draw to your attention to is the date in which it is made and the fact that it is made to Focus Investments Ltd and not Repina Wholesalers.

52.	You must consider these evidence and be satisfied so that you are sure that when Pita Koni Alifereti gave those payments he did it to gain favour from Suliasi Sororvakayini and Peli Kete Doviyaroi. 

53.	The last element of the offence for count 3 in the Information is: the consideration for acts done and to be done afterwards by Suliasi Sorovakatini in his capacity as the Principal Accounts Officer in MAFF. 

54.	I refer you to the evidence of PW 13 Apikali Talemaicakaudrove, she was the Bills Clerk at MAFF HQ in 2000 and 2001. In that capacity worked directly under the supervision and direction of Suliasi Sorovakatini. During her time in the witness box, she was shown a total of 51 LPO and supporting documents, the bulk 41she signed on the instruction of his immediate boss. The other 10 were signed by one Merewai Bole. In her testimony she agree that what she was asked to do by Suliasi Sorovakatini, namely, sign the LPO’s to facilitate the payments to Repina Wholesalers was wrong and contrary to Financial Regulations.

55.	Her evidence was that she signed only to facilitate payments of invoices sent in from Repina Wholesalers. She testified that she did not actually receive the goods at Raiwaqa MAFF HQ, nor did she check whether they were in good condition. She only signed to facilitate payments as directed by Suliasi Sororvakatini the Principal Accounts Officer in the ministry. You may also consider that the 41 open LPO’s she facilitated for payments to Repina Wholesalers were either dated the same date in the invoice or closely to the dates of the same.

56.	You may consider the giving of open LPO’s in this context, which were issued either directly by Suliasi Sororvakatini or under his supervision as the principal account officer of MAFF at the time in question. When Suliasi Sorovakatini gave these directions to PW13 and also prepared the open LPO’s he knew or ought to have known that they were acts that were contrary to Fiji Government Financial Regulations and there were misappropriations of funds to pay for the LPO’s and the supporting invoices. 

57.	The relevant evidence in this regard are those of Iliesa Lutu [PW 1 ] a member of the Special Audit Team that investigated the allegations concerning financial mismanagement in the Ministry of Agriculture, Fisheries and Forests in 2001. The Special Audit Team Report was tabled by this witness as Exhibit P1. In PW1’s answers to question put to him by the prosecutor on the nature of the findings in the report, this was his response:

‘Q: Now sir, as part of that report can you tell the court what your findings were?

Answer: In general the findings of the report found that there were was a lot of misappropriation firstly and secondly like this systems and processes or the procedures or the internal control system that had been set up by government had totally been broken down. It was not followed at any one time by officers of the Agriculture..’

The report first proves that there was a lot of one misappropriation, secondly the internal control system and processes had not been followed and the whole accounting system or the whole accounting policies of the government was just broken down. To us it was so intentional the way it was done.’

58.	It should be pointed out that the above was not challenged by the defence.

59.	As to the exact nature of the misappropriations referred to in Exhbit 1, the evidence covering that aspect was provided by PW Vasuben Banwari [Former Chief Accountant] whose evidence was that both Suliasi Sororvakatini and Josefa Tapele in their respective capacities as Principal Accounts Officer and senior accounts officer respectively would be familiar with the requirements of the Finance Act and Finance regulations. In terms of the nature of the misappropriation, this witness gave detail evidence of the fact that allocation meant for roads, jetties and airstrips were vired without authority to cover the payments of fertiliser and other farming chemicals purchased from Repina Wholesalers pursuant to Special Assistance Scheme for Fijians and Rotumans, which were not approved by government. There were no budgetary allocation for these payments approved in the Budget Allocation for the Ministry of Agriculture in their 2000 and 2001 Annual Appropriations. All the payments were therefore unlawful.

60.	For the acts done and to be done done by Peli Kete Doviyaroi, the following are relevant. PW 8 Vilive Kenatale from the Government Supplies Office, who stated the proper procedure to be followed by all government storeman in facilitating purchases for their respective departments and ministry. When he was shown the documents relating to 12 purchases and the quotations arranged by Peli Kete Doviyaroi as storeman for MAFF [Central/Eastern] Office Nausori, he confirmed that in all those purchases that Peli Kete Doviyaroi initiated involving Repina Whoslesalers, proper procedure, as required under Government Stores Regulations, were not followed. There were no GP 87C Forms filled for each purchases and submitted to the Government Supplies Department. This is a requirement before a government storeman can go out and source quotations from outside suppliers of goods required. This the prosecution allege were done to ensure and facilitate the orders given to Repina Wholesalers.

61.	As regards, Josefa Tapele for count 7, the state case is that for acts done and afterwards to be done by him as senior accounts officer, may summarised as follows: authorising LPO’s in excess of his authorised limit of $1000 for the payments to Repina Wholesalers; in certifying payments for the 12 payments vouchers that eminated from the Nasuori Office, as senior accounts officer, he certified funds were available for payment, when there were no approved financial provisions in the budget and he used financial appropriations allocated for other item of expenditure in the ministry budget. In this regard the evidence of and PW 6 Mrs Sereama Bainimarama and PW 22 Mrs Vasuben Banwari are directly relevant.

62.	On whether the acts done by the three civil servants Suliasi Sorovakatini, Peli Kete Doviyaroi and Josefa Tapele as briefly discussed in the evidence referred in this summing and others you have heard in the course of this trial, were done on account of the payments in cash and property, they each received from Pita Koni Alifereti. There is no direct evidence that show that that was indeed the case. 

63.	That is not the end of the matter. You must look at the time and circumstances of each of the payments that were made to each of these civil servants. In each of them there is close proximity in time between the acts done by the civil servants and the payments they each received. The circumstances of the payments being made at lunches and cash cheques in envelopes, the double payments in one instance to facilitate the purchase of a Mitshubishi Pajero for Suliasi Sorovakatini. 

64.	You must draw reasonable inferences based on these, given the circumstances and the time in which acts were done and the payments received. If you come to the irresistible conclusion, that the linkages in time and circumstance is such that you are satisfied that those transaction are corrupt, you must find Pita Koni Alifereti guilty as charged.

65.	If you are not satisfied beyond reasonable doubt that the payments were made corruptly, you must find Pita Koni Alifereti not guilty as charged.

Peli Kete Doviyaroi

66.	This accused is charged under section 106(a) of the Penal Code Cap 17. The elements of the offence that the prosecution must prove beyond reasonable doubt are

i)	Peli Kete Doviyaroi on dates alleged;

ii)	A person employed in the civil service;

iii)	Corruptly received

iv)	Property by way of cash and property totalling $8230.00;

v)	On account of acts done and afterwards to be done by him in the discharge of his duties as Storeman, at MAFF Nausori Office

67.	This accused in his sworn evidence in court does not deny receiving payments in cash and property given to him by Pita Koni Alifereti. He does not dispute that he was a person in the civil service at the relevant times. Their position as submitted by his counsel Mr Rabuku are:

‘The first two elements of the offence are not in dispute. Half of the third element namely ‘received’ is not disputed while ‘corruptly’ is disputed. Element four, property by was of cash and other payments are not disputed. However out of the total sum of $8,230.00, my client was not cautioned by the police with all the cheques that arrived at that figure. This was admitted by the interviewing officer rev Solomone Kuruveivali. The last element has not been proven by the prosecution.’

68.	The evidence which you must consider are the sworn statement in court by Pita Koni Alifereti that all the payments he made to officials of the Ministry of Agriculture, including Peli Kete Doviyaroi were commissions. This is in direct contradiction to the evidence given by Peli Kete Doviyaroi that the payments he admits he received from Pita Alifereti, including the Seiko Watch from Prouds were sponsorship for the Fiji Volleyball Team and for office functions at Nausori.

69.	In evaluating this claim by Doviyaroi, if you believe him, ask yourself, why did he not inform the police that the monies and the Seiko Watch he received were for the purpose he now claims, sponsorship for the Fiji Volleyball Team, for which he was the Manager. You may ask, why did the President of the Fiji Volleyball Federation knew nothing about the specifics of the sponsorship arranged by Doviyaroi. These are matters touching on credibility, which is for you to evaluate and decide whether to believe him or not. 

70.	As a matter of law, the evidence given under oath in court, by an accused person against a co-accused is admissible against that co-accused. You are may consider Pita Alifereti’s evidence in weighing whether to believe or not believe the evidence of Peli Kete Doviyaroi when he said that all the payments he received were for sponsorship for the Fiji Volleyball team he was managing at that time. According to Pita Koni Alifereti he gave those same payments as commission.

71.	In addition to the evidence referred to in paragraph 60 above, which is relevant to the last element of the offence the prosecution must prove beyond reasonable doubt, the following is evidence that is relevant and which you may consider. In cross-examination by State Prosecutor, Pita Alifereti was asked:

Q: Sir at page 42 Q256 – now you maintained that this correct reflection of your caution interview: Did you give any favours to anyone from the Agriculture department in respect of this payment and this payment was in relation to a quotation addressed to Peli Kete. Is it true you addressed the quotation to Peli Kete? Your answer was Yes, because he rings us first looking for quotation and its either we fax it to him or he comes to collect it personally as he is the purchasing officer. Do you maintain this answer?

Answer: Yes.

72.	If you accept the above answer it is evidence of act done by Peli Kete Doviyaroi for payments received from Pita Koni Alifereti.

73.	As assessors, it is for you to consider carefully these evidence and to draw inferences that are reasonable, that when these acts were done by Peli Kete Doviyaroi, and because of their close proximity to the date and the circumstances in which the payment were received by him from Pita Alifereti, the irresistible conclusion must be that those transaction were corrupt ones.

74.	If after having considered all the evidence and you are satisfied as to be sure of the guilty of Peli Kete Doviyaroi, you must find him guilty as charged. If you are not satisfied, so as to be sure, than you must find him not guilty as charged.

75.	I believe that I have now given you the directions you need to reach you verdicts.

76.	Your verdicts shall be: 

For Pita Koni Alifereti

Count 3: Guilty or Not Guilty
Count 5: Guilty or Not Guilty
Count 7: Guilty or Not Guilty

For Peli Kete Doviyaroi:

Count 4: Guilty or Not Guilty.

77.	You may now retire to consider your verdicts. When you have reached your verdicts, inform the Court Clerk and we will reconvene to receive them.

78.	Court is Adjourned,

Isikeli Mataitoga
JUDGE

At Suva
15 September 2008.