IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 003/2007

THE STATE

AND

MALAKAI TUILOA

SUMMING UP

[1]	Mesdames and Gentleman Assessors, it is now my duty to sum up, directing my remarks to you as the triers or arbiters of fact. It is your role to assess the facts as they have come before this Court in the evidence from the witnesses in their answers to questions and in their demeanour in the witnessbox and in answering questions, as well as in the documents before you as Exhibits, and in the Agreed Statement of Facts. It is my role to deal with matters of law. What the relevant law is, is a matter for me. Therefore, when I set out the matters of law, what I say is authoritative. It is for you as Assessors to accept and act upon what I say.

[2]	As to the facts, it is your opinion that is important. You are drawn from the community; you are the representatives of the society. It is your opinion that is important. If I say anything you might interpret as a view about the facts, you should ignore that unless it coincides with your own independent view. Your opinions are your own, and it is your opinions the Court wishes to hear, after I have concluded my summing up and you have retired, considered all the matters before the Court as to the evidence, and return to deliver your individual assessments of the facts – that is, whether on your assessments you consider the accused, Mr Malakai Tuiloa, guilty or not guilty. 

[3]	The charges upon which he appears are alternatives. 

FIRST COUNT

OFFICIAL CORRUPTION: Contrary to section 106(a) of the Penal Code, Cap 17

Particulars of offence

MALAKAI TUILOA, between 22 October 1998 and 31 October 1999, at Suva in the Central Division, being employed in the PUBLIC SERVICE as FISHERIES OFFICER and being charged with the performance of duties by virtue of such employment, corruptly received a $3,850.00 cheque from one DONALD ROSS BRODIE for himself on account of securing a tender in favour of SEAMECH LTD in the discharge of duties of his office.

IN THE ALTERNATIVE

EXTORTION BY PUBLIC OFFICER: Contrary to section 107 of the Penal Code, Cap 17
Particulars of offence

MALAKAI TUILOA, between 22 October 1998 and 31 October 1999 at Suva in the Central Division, being employed in the PUBLIC SERVICE as FISHERIES OFFICER and being charged with the performance of duties by virtue of such employment, accepted $3,850 cheque from one DONALD ROSS BRODIE as a reward beyond his proper pay and emoluments.

[4]	At this stage, I will draw to your attention a number of matters that go to the law and the facts, to assist you in your deliberations. I will go through each aspect carefully and if there is any matter which is not clear, please make a note of it and at the conclusion I will explain to you how you can go about raising with me any matter which you have not understood. 

[5]	The matters I will now address are:

1.	Dealing with the Facts
2.	Inferences
3.	Extraneous Facts
4.	Challenge to Evidence
5.	Immunity Granted to Witness
6.	Onus of Proof
7.	Standard of Proof
8.	Statement to Police
9.	The Charges
10.	The Evidence – 

(A) Prosecution Case
(B)	Defence Case

[6]	1.	Dealing with the Facts

In reaching your decisions on the facts, you must consider all the evidence for the State and all the evidence for the accused, Mr Tuiloa, and his witnesses. What Counsel for the State and Counsel for the Defence have said is not evidence. In making opening addresses at the beginning of the trial, and in asking questions, and in the final address/es, Counsel for the State and for the Defence have not by their own words provided you with evidence. They sought by their questions to elicit evidence from the various witnesses and in openings and final address/es they put their respective views of the evidence. In this regard, you must take into account the emphasis Counsel have given to the evidence that supports their case. This does not mean you have to follow what Counsel have said or the emphasis placed on the evidence. Rather, what you make of the witnesses and the evidence is entirely a matter for you. It is for you to decide what witnesses and what evidence you regard as being credible and reliable. You, and you alone, are the judges of fact.

[7]	I have referred to ‘credibility’ and ‘reliability’. You do not have to accept everything a witness has said. You may think part of what a witness has said is credible and reliable, but you may have doubts about other parts. Credibility is honesty, sincerity. Reliability can be different. A person may be entirely honest, but be mistaken. 

[8]	I can give you no formula as to how you go about assessing the evidence or taking into account what has been said by Mr Tuiloa, the accused, or witnesses in the witnessbox. What I can say, however, is that ultimately what is required is the application of robust common sense. You should sift out the evidence you believe you can rely upon. You may do this together, working collectively as a team. You may consult with one another. At the end of that task you ask yourselves, individually: ‘Am I satisfied, applying commonsense to everything I have heard, that the State has proven guilt on each element of the first charge beyond a reasonable doubt?’ If you are satisfied, then that is the end of the matter and you return to Court to say so. If you are not so satisfied, then you turn to the alternative charge and ask the same question, individually: ‘Am I satisfied, applying commonsense to everything I have heard, that the State has proven guilt on each element of the second or alternative charge beyond a reasonable doubt?’ 

[9]	Importantly, I said each element. It is not for the State to prove every fact of the story. What it is for the State to prove is the elements of the first charge and if unsuccessful at that, then to prove the elements of the second or alternative charge. I will return to this matter again.

[10]	2.	Inferences

A commonsense approach is needed in deciding what inferences or conclusions you can draw from the evidence you regard as reliable. In this trial, for example, Mr Brodie said that Mr Tuiloa telephoned him and asked him to bring his cheque book with him. Mr Tuiloa denied this. You need therefore to ask yourselves whether Mr Brodie’s evidence is truthful on that point, or whether you believe Mr Tuiloa. If you accept Mr Tuiloa’s evidence on that point, then you do not need to move to the next step which the State effectively asks you to do by its reliance upon Mr Brodie’s evidence. If you do accept Mr Brodie’s evidence, then the next question is what you can infer or conclude from this. The State asks you to infer or conclude that Mr Tuiloa asked Mr Brodie to bring his cheque book so that Mr Brodie could pay to Mr Tuiloa a sum of money to which Mr Tuiloa was not entitled, namely a corrupt payment or, in the alternative, a reward beyond his proper pay and emoluments.

[11]	Any conclusion or inference you draw in relation to this or any other aspect of the evidence must be logical and rational. It must never be speculation or a guess.

[12]	Further if, based on the same evidence, you think two conclusions are equally open, one favourable to the accused, Mr Tuiloa, and one not, then to choose between them would be to guess. In that case, you should not draw the conclusion that is unfavourable to Mr Tuiloa, the accused, because that would not be a safe conclusion to draw. If that should be the case, you will have to look to see what other evidence there is from which the State can prove its case: R. v. Puttick (1985) 1 CRNZ 644.

[13]	3.	Extraneous Facts

It is important to put to one side sympathy and prejudice. I emphasise that you must consider only the evidence you have heard or seen in the exhibits or demeanour of witnesses during this trial. If you have heard anything about this matter in the past, or if you have heard about something that sounds like it, you must put that out of your minds. Fundamental to our system of justice is the entitlement of an accused person to be tired solely on evidence given in this court in a formal way and tested, if necessary, by cross-examination.

[14]	In this regard I emphasise, too, that judges are expected to go about their business a calmly and objectively as they humanly can. You are the judges in this trial, the judges of fact. This is why it is important that you put to one side, too, any feelings of sympathy or anger or distaste about what you have heard or about the people involved. Prejudice has no place in our courts of law. 

[15]	Prejudice simply means what it says: pre-judgment. A good judge never prejudges. The community and society rely upon you as Assessors in this case to come to the evidence, to assess it, to consider it, and to come to conclusions on it without pre-judgment, and will open and fair minds.

[16]	4.	Challenge to Evidence

There is another important rule which should be applied to evidence given by witnesses. In this case, the State chose not to directly challenge any of the evidence given by Mr Tuiloa, the accused, or his witnesses, by cross-examining them. Neither Mr Tuiloa was cross-examined by the State, nor were the witnesses who were called by the defence Counsel to give evidence to the Court. When I asked on each occasion whether the State wished to cross-examine, Counsel for the State said he did not wish to do so. In so saying, he also said that this did not mean that the witness’ evidence was accepted by the State. That you must bear in mind. At the same time, what you must also bear in mind is that, in relation to Mr Tuiloa, the accused:

•	He gave evidence on oath;
•	He opened himself to cross-examination – that is, he was prepared to be cross-examined on all his evidence by Counsel for the State;
•	He did not have to provide this opportunity to the State;
•	He did not have to elect to undergo cross-examination;’
•	He was not cross-examined despite this opportunity having been given by him to the State;
•	He was therefore not given the opportunity by the State to respond to any challenge the State might put to him as to his evidence and the substance and particulars of his evidence;
•	There was no such challenge to his evidence, or any of it, by the State through cross-examination.

[17]	I therefore draw your attention to a principle which has been clearly stated in the law, and accepted by the courts of Fiji as a principle to be applied. That principle comes from a case decided by the English House of Lords, where one of the judges said:

… I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses: Browne v Dunn (1893) 6 R 67, per Lord Herschell, LC

[18]	Some commentators have criticised this rule, saying that it is enough to put a witness on notice that his evidence is not accepted. However, even if that were the law in Fiji you must address your minds to this:

•	Mr Tuiloa was examined in chief by his Counsel;
•	At the end of that examination in chief I invited Counsel for the State to cross-examine;
•	Counsel for the State declined to do so, saying however as I have said that this did not mean that Mr Tuiloa’s evidence was not challenged by the State, or was accepted by the State;
•	Clearly the State did not accept it because the whole tenor of the State’s case is that Mr Tuiloa is not telling the truth when he denies accepting a cheque from Mr Brodie in the amount stated by Mr Brodie and that that cheque is the one before you in the amount of $3850;
•	However, the State did not ask any questions of Mr Tuiloa so did not put directly to Mr Tuiloa each aspect of his evidence which the State challenged;
•	Mr Tuiloa was therefore given no opportunity to respond to the challenge by the State of any or each aspect of his evidence which the State challenged or sought to challenge;
•	His evidence in chief was finished.
•	As there was no cross-examination, there was no re-examination by his Counsel;
•	Mr Tuiloa was therefore left in a position where the State said it did not accept his evidence or it challenged it, but Mr Tuiloa had no opportunity to respond. Indeed, we do not know what questions would have been put to him by Counsel for the State had he been cross-examined. Therefore, we do not know what his answers would have been or would have been likely to have been. Nor have we had any opportunity to observe his demeanour under cross-examination.

[19]	In the light of this, I return to what was said in the case just referred to and reiterate what was said:

… it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue he is a witness unworthy of credit.

[20]	Here, Mr Tuiloa’s evidence was challenged in the sense that Counsel for the State said so – but not through questions to Mr Tuiloa put in cross-examination, nor so as to provide Mr Tuiloa with an opportunity to respond.

[21]	Further:

My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses: Browne v Dunn (1893) 6 R 67, per Lord Herschell, LC

[22]	You need to consider this in considering all the evidence before you.

[23]	Insofar as the evidence of witnesses called by defence Counsel, you need to consider this also – that after their examination in chief, Counsel for the State chose not to cross-examine them on their evidence, albeit saying this did not mean that their evidence was accepted or that it went unchallenged; that as no questions were asked of them in cross-examination, we do not know what their answers would have been nor what their demeanour would have been. In that light, it is important to remember what was said in the case I have referred to. You need to take this into account in considering the evidence of these witnesses.

[24]	5.	Immunity Granted to Witness

The principal witness for the State, Mr Donald Ross Brodie, gave evidence upon the basis of his being granted immunity by the State. That is, the State said that in exchange for giving evidence in this trial, the State would not prosecute Mr Brodie. He was never charged with any offence. However, to give or offer a corrupt payment is an offence, just as to ask for or receive a corrupt payment is an offence. His evidence is that he gave a cheque to Mr Tuiloa, and that that cheque was a payment made to Mr Tuiloa that Mr Tuiloa was not entitled to receive. Mr Brodie says that Mr Tuiloa asked him for a payment to be personally paid to him, Mr Tuiloa, to which he was not in law entitled.

[25]	The letter of immunity is on the letterhead of the Office of the Director of Public Prosecutions and states in full:

June 02, 2006

Mr Donald Ross Brodie
15 Johnston Street
SUVA

Dear Sir

Re: STATE v. MALAKAI TUILOA

On the basis of your statements to the Police dated 14th April, 2005 and 20th February, 2006 and in the interest of justice, the Director of Public Prosecutions is prepared to grant you immunity from prosecution I respect of the offence of Corrupt Practices contrary to sections 376(a) and 377 of the Penal Code, Cap 17 in which you corruptly awarded as commission the sum of $3,850.00 to MALAKAI TUILOA on the 21st day of October, 1999 at Suva in the Central Division, provided you give truthful evidence in accordance with the aforementioned statements.

[26]	The power to grant immunity is given by law to the Director of Public Prosecutions, and the letter is signed by the Director of Public Prosecutions.

[27]	In law, this means that if Mr Brodie’s evidence is true, then he is an accomplice in respect of the offences (in the alternative) with which Mr Tuiloa is charged. An accomplice is someone who is a party to an offence. 

[28]	For reasons I will explain, you must therefore approach Mr Brodie’s evidence with caution. I do not say this because I wish to convey to you any view of the credibility of Mr Brodie, but because in every case where a person is or is said to be an accomplice, the law requires that I give you these directions.

[29]	In law, the evidence of an accomplice is considered dangerous to rely upon, because accomplices may have an agenda or a reason to give evidence for the State, implicating the accused person or persons. In this case, as I have said, Mr Brodie has never been charged. The letter of immunity says that so long as he gives truthful evidence according to his two earlier statements, then he never will be charged.

[30]	The fact that he has been given immunity from prosecution means that Mr Brodie has nothing to gain from giving evidence which might exonerate him from blame. Nevertheless there is still a danger in accepting his evidence because he may have given a false account to the police in order to gain an advantage for himself and get immunity. The letter given to him means that if he does not give evidence in accordance with the statements he has given, he may be prosecuted himself.

[31]	The giving of immunity from prosecution to give evidence in exchange, is the basis of Mr Brodie’s giving evidence. On the ground that according to the letter from the Director of Public Prosecutions he is an accomplice and considering that he has been granted immunity from prosecution to give evidence on condition that he gives evidence along the lines of his previous two statements, I must warn you that it is dangerous to convict Mr Tuiloa, the accused, on Mr Brodie’s evidence alone and without corroboration from other sources.

[32]	Corroboration is some independent evidence, which implicates the accused in the commission of the offence. In considering Mr Brodie’s evidence, you must look for corroboration of his evidence because it is dangerous to convict without such independent evidence. In the course of this summing up I will direct you as to what evidence is capable of corroborating Mr Brodie’s evidence. It is a matter for you to decide whether you accept the evidence as being corroboration in fact, and whether you accept the evidence of Mr Brodie as being credible and reliable. 

[33]	However, at this stage I will give you an example of what would be independent evidence to corroborate Mr Brodie’s evidence as to the offence/s of which Mr Tuiloa is charged, and an example of what would not be corroborative evidence of the offence/s. This distinction is that the first example is of independent evidence that goes to a key element in the alleged offence, whilst the second example is independent evidence that does not go to any key element in the alleged offence but simply goes to conduct about which there is no dispute and which is lawful, unless independent evidence confirms an unlawful element in relation to it. 

[34]	Mr Brodie alleges that at Mr Tuiloa’s office at the Fisheries Department in Lami, he handed to Mr Tuiloa the cheque for the sum of $3580.00. That is the cheque which is alleged to be a corrupt payment or monies Mr Tuiloa was not entitled to receive. Independent corroborative evidence would be evidence from someone else that they saw Mr Brodie give Mr Tuiloa that cheque, or that they can identify that cheque as one they saw in Mr Tuiloa’s possession at that time.

[35]	Mr Brodie also says that Seamech received a cheque in the sum of some $81,000 from Mr Tuiloa in payment of 10 Puka Puka fishing units. Independent evidence that Mr Brodie had that cheque does not corroborate Mr Brodie’s evidence as to any key element in the alleged offence. The giving of that cheque to Mr Brodie is not the transaction that is alleged to be the unlawful transaction constituting a corrupt payment. Mr Tuiloa acknowledges that he gave Mr Brodie the $81,000 odd cheque. There is no dispute about that. It is the securing of the tender in favour of Seamech Ltd that is alleged to be an element of the offence charged, so that you need to look for some independent corroboration of that.

[36]	6.	Onus of Proof

Perhaps the most important aspect of all is this: that in every criminal trial the burden of proving the charge rests on the State. The State bears the onus of proof. That onus rests upon the State from the beginning of the trial until the end – it does not shift. There is no onus on an accused person to prove that he or she is innocent. Mr Tuiloa, as the accused in this trial, bears no onus of proof. He does not have to prove he is innocent of either charge. For him to be found guilty, the State must prove his guilt of the first or, if not that, then the second or alternative charge.

[37]	There is no requirement or expectation that an accused person should give evidence or make an unsworn statement or call other people as witnesses. In this case, Mr Tuiloa, the accused, has chosen to do so. He gave evidence on oath and was prepared to submit himself to cross-examination. The State chose not to cross-examine him. Counsel for the State said that this did not mean that the State agreed with what Mr Tuiloa said. However, that is not evidence. What Mr Tuiloa said in evidence in chief, in answer to questions by his Counsel, was not the subject of questions by the State. 

[38]	That Mr Tuiloa chose to give evidence on oath and was ready to submit to cross-examination does not change the fundamental proposition that the onus of proving the charge rests on the State. But giving or calling evidence an accused person does not assume some or any responsibility for proving their innocence, or that they are not guilty. The burden of proof remains with the State.

[39]	7.	Standard of Proof

The question then is what is the standard of proof. That is, when the onus rests on the State as it does here and generally in criminal trials, what is the standard the State must meet? The State must prove all the necessary ingredients of the charge or the alternative charge beyond reasonable doubt. Proof beyond reasonable doubt means what it says. You must be sure, you must be satisfied of guilt, before you can express an opinion about it. Only if you are sure, if you are satisfied beyond reasonable doublet of guilt, then it is your duty to say so. If you are not sure, not satisfied beyond a reasonable doubt, then you must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon your individual assessment of the evidence.

[40]	8.	Statement to Police 

The accused, Mr Tuiloa, made a statement to the Police. This is titled the ‘caution statement’ because it was made after the Place cautioned him about his rights. That statement is before you as evidence. What you make of the truthfulness, accuracy and weight of that statement is again entirely a matter for you. Just as you may accept all the evidence given by any particular witness in the trial, you may accept all the statement made by Mr Tuiloa, the accused, to the police. Or, in the same way as you may accept parts of what a witness said in evidence and not accept other parts, you may accept parts of what is said in the police statement ands not other parts.

[41]	A police statement is generally important in a criminal trial. The caution statement made by Mr Tuiloa is important in this trial. Please weigh it carefully, by looking at what the answers are to the questions put to Mr Tuiloa by police. Any questions of credibility and weight of the statement is again a matter for you.

[42]	9.	The Charge/s

I have already read the charge and the alternative charge to you. However, because these are the very crux of the trial and it is in relation to the charge and, if necessary, the alternative charge, that you must assess and weigh the evidence, I repeat each of them separately, and point the elements which the State must prove beyond a reasonable doubt.

FIRST COUNT

OFFICIAL CORRUPTION: Contrary to section 106(a) of the Penal Code, Cap 17
Particulars of offence

MALAKAI TUILOA, between 22 October 1998 and 31 October 1999, at Suva in the Central Division, being employed in the PUBLIC SERVICE as FISHERIES OFFICER and being charged with the performance of duties by virtue of such employment, corruptly received a $3,850.00 cheque from one DONALD ROSS BRODIE for himself on account of securing a tender in favour of SEAMECH LTD in the discharge of duties of his office.

[43]	The first charge requires proof beyond a reasonable doubt of official corruption on the part of Mr Tuiloa. The onus is on the State to prove, beyond a reasonable doubt, that Mr Tuiloa:

1.	between 22 October 1998 and 31 October 1999
2.	was employed in the public service
3.	was charged with the performance of any duty by virtue of such employment
4.	corruptly
5.	received
6.	any property or benefit of any kind – here, a $3,850.00 cheque from Mr DR Brodie
7.	for himself
8.	on account of anything already done – here securing a tender in favour of Seamech Ltd
9.	in the discharge of duties of his office

[44]	This charge requires the proof beyond a reasonable doubt of corruption.

[45]	‘Corruptly’ is a simple English adverb. It does not mean ‘dishonestly’. It is a different word. What it does mean is purposefully dong an act which the law forbids. 

[46]	Therefore you must ask yourselves whether the State has proven beyond a reasonable doubt that Mr Tuiloa received a $3,850 cheque in accordance with the other details set out in the charge, and that that cheque was received corruptly: that is, Mr Tuiloa received the cheque purposefully doing an act which the law forbids.

[47]	You might consider it this way. If Joe Smith, a public servant, takes a reward for doing something which helps Tom Jones, he is doing it corruptly if he takes the reward because he has done something in the course of his job to help Tom Jones in the hope that Tom Jones will in fact pay him that reward. Motive does not matter. It may be that Joe Smith is anxious to have the reward for himself or he is anxious to help someone else who very much deserves help. This does not matter. When Joe Smith takes the reward, if he does it in return for having done something in connection with his public duties, then Joe Smith does it corruptly.

[48]	Bear in mind that one of the elements the State must prove beyond a reasonable doubt is that the benefit or ‘bribe’ is taken by someone employed in the Public Service. Section 3 of the Penal Code defines a public servant:

A person employed in the Public Service means any person holding any of the following offices or performing their duty thereof whether as a duty or otherwise namely … all persons in the employment of any government department.

[49]	The Fisheries Department is a government department. This is one of the matters to which you will address your minds and make a decision, for the purpose of coming to a conclusion as to whether the State has proven the charge beyond a reasonable doubt. There does not appear to be any dispute about the government status of the Fisheries Department, or about Mr Tuiloa’s status as a public servant in the Fisheries Department. Therefore, it is unlikely that you will need to spend much time deliberating upon that aspect.

[50]	Was Mr Tuiloa obliged to perform duties in accordance with his employment with the Department of Fisheries? You will need to address that element. 

[51]	Then you will need to address whether, in the performance of any such duties he received any property or benefit. There, the benefit alleged to have been received by Mr Tuiloa is the $3,850 cheque from Mr DR Brodie. The requirement therefore is that you must be satisfied that Mr Tuiloa received that benefit – the $3,850 cheque. 

[52]	However, it is not sufficient for Mr Tuiloa to have received such cheque, if you were to form an opinion that the evidence supports that element of the charge – that is, receipt of a benefit. There would have to be evidence that such cheque by Mr Tuiloa was received ‘corruptly’.

[53]	You also need to address whether the cheque, if received by Mr Tuiloa, was received by Mr Tuiloa for himself and that it was received by him on account of anything already done – namely, as alleged by the State, securing a tender in favour of Seamech Ltd. That is, there needs to be a link between securing a tender in favour of Seamech and the receipt of the cheque of $3,850 from Mr Brodie.

[54]	In other words, you need also to address whether this cheque, if you believe it was received by Mr Tuiloa and received by him corruptly for securing a tender in favour of Seamech Ltd, was so received in the discharge of duties of his office.

[55]	These elements must be proven beyond a reasonable doubt by the State. If you are satisfied beyond a reasonable doubt of these elements, then you will express the opinion that Mr Tuiloa is guilty on the First Count.

[56]	However, if your opinion is that the State has not proven each of these elements beyond a reasonable doubt, your opinion will be that Mr Tuiloa is not guilty on the First Count and then, and only then, do you move to the Second Count, which is expressed in the alternative.

[57]	I turn then to the alternative, Second Charge, to set out each of the elements the State must prove beyond a reasonable doubt. 

IN THE ALTERNATIVE

EXTORTION BY PUBLIC OFFICER: Contrary to section 107 of the Penal Code, Cap 17
Particulars of offence

MALAKAI TUILOA, between 22 October 1998 and 31 October 1999 at Suva in the Central Division, being employed in the PUBLIC SERVICE as FISHERIES OFFICER and being charged with the performance of duties by virtue of such employment, accepted $3,850 cheque from one DONALD ROSS BRODIE as a reward beyond his proper pay and emoluments.

[58]	What are the ingredients asserted in the alternative charge? These are that Mr Tuiloa, the accused:

1.	between 22 October 1998 and 31 October 1999
2.	was employed in the public service
3.	was charged with the performance of any duty by virtue of such employment
4.	accepted
5.	any reward beyond his proper pay and emoluments – here, 

i.	there is said to be a reward being a $3,850.00 cheque from Mr DR Brodie; and
ii.	that reward of the $3,850 cheque is said to be beyond Mr Tuiloa’s proper pay and emoluments

[59]	If you therefore come to consider this, the alternative and Second Count, you must look to the evidence to see whether the State has proven each element to your satisfaction beyond a reasonable doubt.

[60]	Ultimately both charges rest upon whether or not you believe Mr Brodie when he says he gave the cheque of $3850 to Mr Tuiloa and whether Mr Tuiloa in fact received that cheque. To find that is not enough, but it is an essential element that must be answered ‘yes’ – that is, proved beyond a reasonable doubt - before either charge can be valid as against Mr Tuiloa. If there is no corroborating evidence of this, then you must consider carefully whether any other evidence supports the first charge and, if it does not or if there is a reasonable doubt as to the other elements, then if any other evidence supports the second charge.

[61]	10.	The Evidence

I now have to summarise the facts for you. The State presented some seven witnesses. For the State, the principal witness was Mr Donald Ross Brodie of Seamech. Mr Grahame Southwick, of another fisheries company involved in tuna fishing gave evidence, as did Mrs Amelia Tugi, formerly with the Department of Fisheries and at the relevant time working under Mr Tuiloa. Ms Shreen Pal, formerly with Seamech, gave evidence from Sydney by video link. Ms Sharmaine Nagata from ANZ Bank, Mr Pramendra Kumaran Nair and Cpl Aminiasi Cula of the Fiji Police who had carriage of the investigation gave evidence.

[62]	For the defence, Mr Tuiloa gave evidence as did two further witnesses.

[63]	I emphasise again that it is for you, as Assessors, to make up your own minds as to the content and quality of the evidence presented by both the State and the Defence. My purpose in going over the evidence is not to impose any view upon it, or to elevate an opinion on my part. That would be to usurp your role as arbiters of fact. Nor will I canvass all the evidence. Otherwise, we would be here for a further four days which would neither be wise nor fruitful. I do want to refresh your memories about some of the evidence. There may be matters from the evidence that impressed you. By all means that that into account. This is simply my summary.

[64]	(A)	Prosecution Case: I turn first to the evidence for the Prosecution, looking at both the evidence in chief and cross-examination, and bearing in mind re-examination.

[65]	Mr Donald Ross Brodie: Mr Brodie’s evidence was that his company, Seamech, manufactures and exports tuna fishing equipment, tuna long lining equipment comprised by or in reel sets. He said that Seamech manufactured and supplied long-line equipment for the Department of Fisheries, basically for deep-sea snapper. He said Seamech had had dealings with Mr Tuiloa in relation to a Fisheries Department programme involving Indigenous fishermen which required the supply of Seamech equipment. 

[65]	He said that during 1998 and 1999 in his capacity as Seamech principal he had dealings with Mr Tuiloa in Mr Tuiloa’s capacity as an officer of the Department of Fisheries in relation to Puka Puka units. 

[66]	Mr Brodie said that Seamech had supplied equipment for previous programmes and this was an extension of the programme. He gave Mr Tuiloa a quote for equipment. That particular quotation was done in his (Mr Brodie’s) office, he said. He said that Fisheries ‘had a habit of delaying payments quite unnecessarily’, it was ‘a long winded process’ and ‘no one paid much attention to you after equipment had been supplied’. He and his son, he said, had a discussion about this and decided they would offer a discount because that meant that they would get a better price structure and payment upfront. He said he spoke about this in the office after he formulated the quote for Mr Tuiloa. He said that for an upfront payment, Seamech offered Mr Tuiloa a discount. He said he believed Seamech offered 5% for payment with the order. He said that quotation no. 4436 was written and signed by him, and dated 23 October 1998. He said he wrote that quotation for the Fisheries Department and he said it was written ‘for Malakai’. He was asked whether he could be sure about that and he said ‘it was ten years ago’. The price was written for one unit $7,392, Vat Exclusive. At that time the Vat component was 10%. He said there was a record on the document that if 5 units were ordered and paid for at the same time (on completion) then a discount of 5% would be given.

[67]	That quotation was marked with two parallel lines ‘Cancelled’. Mr Brodie said he did that. When asked where was the white copy when he did that, he said: ‘To be honest I cannot remember.’ As another example, invoice 4491 (relating to another customer or client) was marked ‘Cancelled’ but the white copy remained in the book. He said that the white copy for 4436 ‘could have been put in the trash can, I can’t remember’.

[68]	Quotation 4437 he said was made out to the Fisheries Department and Malakai Tuiloa’s name appeared on it. He said this was the same as the previous quotation but was priced for 5 units ‘conditional to all units being supplied as one order’. He said this quotation was written on the same date as 4436. He said the 5% discount was his idea. He said that he was prepared to do it – offer the 5% discount - but Mr Tuiloa told him not to write it on the invoice. He said he ‘couldn’t understand why they didn’t want the discount’.

[69]	This is a key matter in the trial, for the contention here is that Mr Tuiloa:

(a) did the negotiations and asked for the quotation from Seamech and directly from Mr Brodie;
(b) asked Mr Brodie to conceal the 5% discount;
(c) did so, so that he could claim the 5% discount for himself as a corrupt payment or a payment over and above that to which he was entitled in pay and emoluments.

[70]	The State suggests that the documents are corroborative of Mr Brodie’s evidence, because they are documents which speak for themselves. However, you need to bear in mind that they are documents created by Mr Brodie himself, and that the explanation comes from Mr Brodie himself. That is, the explanation as to (a) that there was a 5% discount offered in the first instance (which is in Mr Brodie’s writing so comes from Mr Brodie himself); and (b) that the second invoice was written to conceal the 5% discount (which is again in Mr Brodie’s writing so comes from Mr Brodie himself) is based in what Mr Brodie has written in the documents, that it was written at the time and in the circumstances he says, and what Mr Brodie tells you is the meaning of the writing in the documents. There is no material independent of Mr Brodie – Mr Brodie’s statements to you, whether in writing or orally – that supports Mr Brodie’s evidence here before you on this specific point.

[71]	Because the question of a 5% discount and the evidence of Mr Brodie that Mr Tuiloa asked him to conceal this – that is, not to write it on the invoice, it may seem important to you to look at other invoices relating to the Fisheries Department and whether they indicate a 5% discount. It may also seem important to you to look at whether if they do not indicate a 5% discount, this is a factor attached to invoices specified to Mr Tuiloa.

[72]	There is another invoice in the book, no. 4484 dated 30 September 1999 which is for the Fisheries Department, not marked to Mr Tuiloa, and which has no reference to any discount as being payable on upfront payment. Neither Counsel as I recall went to that invoice, however, the whole book of invoices is admitted into evidence so you may wish to take that into account. Counsel for the Defence raised the lack of any reference to discount on invoice no. 4402 of 20 May 1998, where the price quoted is $7392, with no reference to discount. Similarly for invoice no. 4408 of 18 June 1998 where the price quoted is $7,295 and again no discount is referred to. This follows also with invoice 4410 of 1 July 1998, referred attention Kitione S. with a fax number, quoted at $8720, no discount referred to, and invoice no. 4411 of 2 July 1998 where the price quoted is $8395.00 and no discount. Again, this evidence is a matter for you. 

[73]	Returning to Mr Brodie’s oral evidence, he said there was no order placed at this time – that is, in October 1998. He said it was placed later on. ‘It was months and months later’ he said, and was placed, he said, by ‘Malakai’. In relation to that, said Mr Brodie: ‘I believe he called me a few days prior to final discussions taking place and upped the number from 5 to 10’ then, said Mr Brodie, ‘a few days later he asked’ Mr Brodie to ‘come and see him’. Mr Brodie said that when the order went from 5 to 10 that put a different twist on it because suppliers in the US would not handle tiny orders but when it went to a bracket of 10 or more they would supply. 

[74]	Mr Brodie was taken to invoice 4454 dated 24 February 1999 and said that related to ‘identical equipment’ as the previous order, for 10 units. He said that he wrote ‘5’ for the number because he was copying the earlier order and changed it to ‘10’ because the number had been ‘upped’ from 5 to 10. He said at that time he was still willing to give 5% discount for payment on completion but ‘Malakai asked us not to show it’. The instruction was, he said, and these are his words, ‘back in – on the 10th month of the year previous and we removed the discount’. He said there was ‘some loose discussion about whether it could be paid to Fisheries for a payment for the social club or something like that but it was very loose and I didn’t believe it was a serious comment’. He said that at the time he ‘didn’t’ but he sees it now as ‘a serious attempt to obtain money’. 

[75]	He said he thought government policy needed a new quotation. 

[76]	He was then taken to quotation 4489 dated 7 October 1999 with ‘Malakia Tuiloa’ written on it and relating to 10 sets, the same price as the previous quotation. He wrote on it that it was a duplicate of the February invoice because, he said, Malakai told him that one had been lost. He was still willing to give the discount but didn’t put it on because ‘that had been dealt with some months earlier. He didn’t want it on the document’.

[77]	Invoice 5587 was a copy and initialed by Antoinette Foster of Seamech. This was said to relate to quotations 4437 and 4454., and was dated 26 February 1999 Mr Brodie says that the writing of ‘+ 4454’ is his writing and different from the other writing. He did not refer specifically to why this invoice was raised but said it was general practice if a quotation was accepted to raise an invoice.

[78]	In relation to quotation 4489, he said: ‘To the best of my recollection we were told that the programme had been provided with funds to carry out the project and that our proposal to supply the equipment had been accepted.’

[79]	He said: ‘Some time has gone by but I believe we were told the original documents had gone missing and we supplied new quotations but referred to the original documents. They needed new quotations to apply for the LPO – Local Purchase Order.’

[80]	He said: ‘In this case we were being paid upfront and we would have raised an invoice that related to that same LPO and provided that one copy goes back to the Government Department concerned with the invoice.’ 

[81]	Mr Brodie said: ‘I was called by Malakai who told me to come out to the Fisheries Department in Lami.’ Mr Brodie then described where the Fisheries Department was in Lami, and that Mr Tuiloa told him by telephone after lunch that he should come. He said ‘he asked me to bring my cheque book’. Mr Brodie said that Mr Tuiloa ‘told me he had the cheque and the LPO had been raised’. Mr Brodie said it was ‘not at all’ usual to take the cheque book. It was an unusual request he said. He did not discuss it with Mr Tuiloa on the phone. 

[82]	He said: ‘Later in the afternoon I went out and waited for some time before I could see him.’ He then described the office accommodation at Lami Fisheries Department and the location of Mr Tuiloa’s office. He was asked whether there were other staff working there. He said there were other staff there but whether they were working would be a question mark. He said he waited in the corridor. He said he saw Mr Tuiloa in his office alone ‘just the two of us’ and described the office. He said they sat on either side of the coffee table. The door was closed. There were external windows and one window in the door, he said. He said: ‘Malakai said that the project was going to proceed. It had been accepted he had the cheque for the project and it was sitting on the coffee table. He then asked me if I’d if I was going to pay the 5% and there was some discussion about that and I said I wasn’t going to pay five per cent and it went backwards and forwards and I said I’d pay half of that. We rounded it off at $3850.’ He did not believe the discussion about 5% was for the Fisheries Department. 

[83]	He said: ‘Malakai was adamant that he wanted money. It was obvious that it wasn’t a clear cut discount for fisheries. There was talk about the social fund or this sort of thing but it was never made clear and the condition of getting the cheque was to pay him.’ Mr Brodie went on to say: ‘I believe that it was said that it was a condition of supply that he got something back for the writing the cheque and the money up front.’ He then said: ‘We’d settled on a figure of $3850 and I had the cheque. I started to write cheque but he was upset not pay in cash. I said no. He couldn’t be precise about the words as it was 10 years ago, but Mr Brodie said that Mr Tuiloa virtually said he would begrudgingly accept a cheque and said it should be a cash cheque and would Mr Brodie cash it. Mr Brodie said that he said no, then: ‘I think he was not overjoyed at that.’

[84]	I pause here to say that you may question why Mr Tuiloa would say; ‘Bring your cheque book’, then not want to be paid by a cheque. That is, you may think it odd that Mr Brodie said Mr Tuiloa had specifically told him to bring his cheque book, then Mr Brodie said that Mr Tuiloa did not want to be paid with a cheque but in cash. On the other hand, you may not think it odd at all and may not question it. That is entirely a matter for you. It is a matter for you to form your own opinion, taking into account Mr Brodie’s evidence on that point and as a whole, and Mr Tuiloa’s evidence, and any other evidence which you consider can assist you on that point.

[85]	There was also a dispute about whether Mr Tuiloa had asked Mr Brodie to come to the Fisheries Department office, or whether Mr Tuiloa had gone to Mr Brodie’s office with the $81,000 odd cheque. In cross examination you may have noted that at one point Mr Brodie said: ‘He came to me with the full cheque then asked for money.’ This appears to contradict Mr Brodie’s evidence. However at this stage of the cross-examination Mr Brodie then repeated his earlier statement as to Mr Tuiloa’s asking him to bring the cheque book. Mr Brodie again said he was ‘surprised that he wanted the cheque book’; that this was ‘unusual’. 

[86]	When asked about his statement that Mr Tuiloa was not happy to accept a cheque, Mr Brodie said that Mr Tuiloa wanted him [Mr Brodie] to cash a cheque. He said Mr Tuiloa asked for money but that what he (Mr Brodie) had said is correct: that is, that he was asked to bring his cheque book and wrote a cheque, and that Mr Tuiloa had said was not happy but took the cheque. 

[87]	There were some other matters in Mr Brodie’s evidence that may appear to be contradictions. For example, at one stage in cross-examination Mr Nagin asked Mr Brodie about quotation 4436 and its being marked to the attention of Malakai, and whether that meant that it was faxed to Mr Tuiloa rather than Mr Tuiloa having been the one who asked for the quotation. Mr Brodie said that he did not agree as to its being faxed, and said that often he put on the name of who it is asking for quotations. 

[88]	However, later on another aspect in cross-examination he said that Seamech had been sending faxes to the Department of Fisheries on which or to which no one ever came back: ‘We’ve been sending faxes,’ he said. ‘No one ever came back not Malakai.’ He also said: ‘We were faxing to Malakai.’ This appears to be confirmed by reference to the invoice book where, for example, invoice 4408 of 18 June 1998 (Exhibit P1) has the words ‘Malakai Fax No. 361 184. The fax number is written in pencil on the pink copy which appears to indicate that the fax number was obtained at a time different from the writing of the carbon copy. If Mr Tuiloa did the negotiation with Mr Brodie, then why would Mr Brodie fax it to Mr Tuiloa’s attention? Why not give it to him on the spot? If Mr Tuiloa was there negotiating with Mr Brodie, or did it by telephone (although there is no evidence that there was telephone negotiation so it may be assumed that the contention is that the negotiation took place in person), why is the fax number written on after, in what appears to be pencil? Mr Tuiloa might be taken to know his own fax number so why would he not give it on the spot? Again, it is a matter for you whether you consider that these questions have any relevance or do not. The facts are for you to decide independently.

[89]	A contradiction may or may not also have arisen in relation to the publication Daily Post. When initially asked about the article and his responding letter published in the Daily Post, Mr Brodie said: ‘A friend of mine called me so I bought it.’ He then said: ‘One of my boys had a paper in the workshop and brought it up to me.’ He then stated: ‘Correct’ to he ‘didn’t buy the Post’ and continued saying that he read it ‘only after brought to my attention by staff’. 

[90]	It was also raised with Mr Brodie that although he now referred to 5% as the discount figure and the figure Mr Tuiloa asked to be concealed in the Seamech invoice, this was not consistent with his second police statement. In the first of his statements to the police, Mr Brodie said that the discount offered by him to the Department of Fisheries was 5% if five sets of equipment were to be ordered and paid for in one order, then when the order was raised to 10 units Mr Tuiloa said that the 5% was to be paid to him. However, in the statement of 20 February 2006, Mr Brodie said that a discount of 10% was offered by Seamech if the complete order was to be supplied as one order, and the figure of 10% is referred to twice in that statement, with Mr Tuiloa being said to have asked for a full 10% of $7372, a precise sum. Mr Brodie said that this was a ‘mistake’. 

[91]	Through his evidence, Mr Brodie on a number of occasions remarked that as what was now in question before the court was said to have occurred 10 years ago, he had to speak from his recollection. He said this in relation to the negotiations he described as occurring in Mr Tuiloa’s office at the Department of Fisheries. In that regard, at one stage he said that he started off with a figure of about $2500. From what he did say, however, it appeared that he was clear that there was discussion round the 5% sum and a conclusion reached as to ‘rounding off’ the figure at $3850. 

[92]	When it came to the searches he carried out to find the cheque, Mr Brodie says he gave to Mr Tuiloa, in answer to a question from Counsel for the State that he had looked through the records for a cheque in about the amount of three and a half thousand dollars he said yes. His evidence then was that when he was conducting this search through Seamech records to find the cheque, he wasn’t sure whether it was cheque no. 2870 or 2873. That is, whether it was the cheque in the amount of $3850 (Bank of Hawaii cheque 2870) or the cheque in the amount of $3863.78 (Bank of Hawaii cheque 2873). Again, you may think it strange that he recalls a discussion with Mr Tuiloa about the payment to Mr Tuiloa which concluded with a ‘rounding off’ a figure to be paid to Mr Tuiloa, yet by searching out both $3000 odd cheques says that this could have applied to a figure of $3850 or $3863.78.

[93]	Whether these matters or any of them are in fact contradictory is a matter for you. It is for you to make up your mind whether there were contradictions in Mr Brodie’s evidence and then whether that has any impact in relation to Mr Brodie’s evidence as a whole. That is, a person can contradict him or herself in evidence, but it does not mean that they are not telling the truth on other matters or that there evidence is not to be believed. You must simply look carefully at what you think is a contradiction in evidence, if you do, and whether that has any impact on the evidence as a whole or upon your assessment of the credibility of the witness. 

[94]	Another matter was put strongly by Defence Counsel as going to Mr Brodie’s credibility, and I deal with that now. Both Counsel for the State and Defence Counsel raised with Mr Brodie the fact that albeit the matter relating to the $3850 cheque was dated as October 1999, he did not go to the police with the allegation that Mr Tuiloa had asked for a payment and received the cheque until some considerable time later. 

[95]	He said he spoke to people in the fishing industry because at the time there was a lot of discussion about ‘what was going on’ in the industry. However, he did not speak to anyone in authority in the Department of Fisheries. He did not speak to the police. He said he didn’t want to put himself in the hot seat. It occurred to him that he might get in to trouble over it. 

[96]	Counsel for the Defence raised with Mr Brodie his writing a letter to the Daily Post where he said there were ‘upfront payments’ which he effectively said were legitimate. In that letter, he made no reference to any payment to Mr Tuiloa, contrary to what he some time later said to police and now says here. Counsel for the Defence says, therefore, that this brings his credibility into question: on the one hand, Mr Brodie says there is no action on Mr Tuiloa’s part of taking money illicitly or illegally or corruptly – he says this, says Defence Counsel, by his silence; by saying nothing. Later, however, Mr Brodie comes forward with an allegation that Mr Tuiloa asked for money and in fact was paid $3850 in a cash cheque. The question that is then put is whether Mr Brodie can be believed, in light of what are effectively inconsistent statements – whether it be by his silence and writing a letter in which the inference can be drawn that he says there is no criminality or offending conduct so far as he is aware in upfront payments or the process described in the Daily Post article to which he responds, or at least in that circumstance and generally he does not say anything about a bribe or corrupt payment or request for a corrupt payment – he doesn’t report to police or any government authority or authority in the Department of Fisheries. Then on the other hand, years later, he makes a statement to police of a criminalizing nature vis-à-vis Mr Tuiloa.

[97]	Again, whether or not you believe this brings Mr Brodie’s credibility into question is a matter for you. You must consider this along with all the evidence, both Mr Brodie’s evidence and all the other evidence from witnesses and the documents.

[98]	Mr Grahame Bruce Southwick: Mr Southwick said he is Chief Executive Officer of Fiji Fish Company, Lami, pioneers in the tuna fishing industry in Fiji and probably one of the last surviving. He said he had known Mr Tuiloa and Mr Brodie probably for the same length of time. He acknowledged that he and Mr Tuiloa had appeared in a television programme ‘Close Up’ in relation to the fishing industry. He said that around about that time he spoke with Mr Brodie about this particular matter – that is, the matter before this court in this trial. 

[99]	He said it was ‘well known’ he (Mr Southwick) was ‘spearheading Fisheries corruption as affecting our industry’. He ‘had a call initially from David Lucas and the information made available involved Mr Malakai Tuiloa and Seamech’. He said he spoke to Mr Brodie and said how could he assist. He contacted the police head of the corruption investigation and said a person with information who was particularly involved was seeking protection. He sent the police details by fax.

[100]	He said he was a member of Mr Qarase’s Think Tank up to the time it was disbanded. He said that there were arguments on the programme ‘Close Up’ in relation to various Fisheries matters. One was the number of fishing licences because approval for 220 licences had been issued and 110 were in operation. Another was his occupation of government property.

[101]	He said Mr Brodie said he would make documents available to him, whatever the police needed, but he wanted to talk to someone in the police so that he would not be in trouble.

[102]	In re-examination Mr Southwick was asked whether he ‘had an axe to grind’ in ‘telling a false story to get this man [Mr Tuiloa] in trouble’. This was put in relation to the ‘Close Up’ programme and a contention that he was occupying government property free of charge and this had been the subject of investigation by Mr Tuiloa. 

[103]	Mr Southwick said he didn’t have any axe to grind. He said he was taking steps in relation to the fishing industry. He said it was ‘nothing personal’. 

[104]	Mrs Amelia Tugi: Mrs Tugi said she is a fulltime student at university. Previously she worked in the Ministry of Fisheries and Forests at Lami. She was a Senior Clerical Officer when she transferred to Fisheries. She worked with Mr Tuiloa at the relevant time. He was her superior. 

[105]	She said she recalled the order for 10 Puka Puka hydraulic drop-lines from Seamech. ‘Requesting for purchasing’, she said, ‘comes to our table for processing when approved’. When it is above the amount for the approval of the Permanent Secretary, namely $10,000, then it must go to the Major Tendering Board. All such requests are submitted to them, they approve, then this is returned to her section. She said she does the submission to the Major Tendering Board. She said she wrote the request for approval of 10 sets of hydraulic reels. There was a request, plus the quotation from Seamech as they were the only company making the equipment, plus more pages, including a memo from Mr Tuiloa. The amount she said was $81,312. She could still recall the figures as she deals in figures all the time. 

[106]	She said it ‘usually takes about 1 month or 3 to 4 weeks for the Tender Board, and it depends on scheduling a meeting. As soon as approval is received, then her section processes. She said that the procedure is to process payment, issue the LPO and invoice Seamech. She said that the LPO of 12 October 1999 (P4 LPO 579832 of 12 October 1999) was created on the basis of approval of the Major Tender Board, by accounts (one of her assistants) relating to the supply of 10 hydraulic reels, with Seamech invoice 721.

[107]	She said that the payment voucher for this transaction was certified on 18 October 1999. The LPO issued on 12 October 1999, and the cheque issued on 20 October 1999. She said she told Mr Tuiloa that approval from the Major Tender Board had arrived. He said that the money was urgently needed for reels for the project. ‘We were doing our part,’ she said: ‘I called headquarters. The cheque was ready. I went to uplift the cheque. Mr Tuiloa requested the uplift.’ She entered the cash register and took it to Mr Tuiloa to sign. The cheque record book is used where a cheque is uplifted from headquarters and distributed. Otherwise, cheques must be distributed from headquarters. The entry was for 21 October 1999 signed by Mr Tuiloa. She said that a cheque could be given to a senior officer if urgent, otherwise would go through the mail.

[108]	Mrs Tuge said that it was Mr Tuiloa’s job to push the local fisherman programme. As to the tender process, she said that the approval of the Major Tender Board is required for a job over $10,000 and that the Major Tender Board can reject: ‘Yes, they do’. She agreed that the final decision is of the Major Tender Board. She said that the recommendation came from Mr Tuiloa and his group and all she could remember was that they were putting up Seamech as hydraulics and that she could recall something like that – their being local. 

[109]	Mrs Sharmain Nagate: Mrs Nagate was a Bank Officer with ANZ Bank, and had been with ANZ for 10 years. She did not work with Bank Hawaii so was not able to give any evidence about practices or processes at that Bank. She was able to give evidence about her knowledge of bank practices in the context of her job with ANZ Bank. ANZ Bank took over Bank Hawaii business when Bank Hawaii closed in Fiji. The State put forward Mrs Nagate as a witness who from her knowledge at ANZ Bank was able to give evidence as to the markings on the cheque in question, namely that for $3850. She said that the normal practice is that the customer should sign when receiving a cheque and if a cheque is cashed then the teller will validate it on the printer. Looking at the $3850 cheque she said it ‘looked like it had been cashed as it was denominated at the back 50/3850’. It was stamped 22 October 1999, 2:51:51. She said that would mean that it was presented at the Bank at that time. 

[110]	She was asked by Defence Counsel about endorsement of the cheque – that is, it is not signed on the bank by the person presenting it. She was also asked about the amount of the cheque. She said that she ‘presumed the teller would think it a big amount’. She said the teller would be careful in cashing it. Where the payee is ‘cash’ she said that the teller would confirm the signature, amount and date are all correct and then pay the customer. She said that at ANZ in some cases where there are big amounts then a signature will be needed on the back of the cheque. Asked whether $3850 was a big amount, she said ‘it would be for the teller’. She was asked whether the practice is for all cheques to be signed on the back and she said: ‘I think so, yes.’ 

[111]	In re-examination she said that when a customer brings a cheque in it doesn’t matter about the amount. ‘We do all necessary checks.’

[112]	You may consider Mrs Nagate’s evidence important because it relates to the cheque which is said to be the ‘bribe’ or ‘corrupt payment’ or ‘overpayment’ of Mr Tuiloa, the accused. It is for the State to prove that Mr Tuiloa received this cheque and received the benefit of the cheque: that is, their case is that Mr Tuiloa received the cheque from Mr Brodie at Mr Tuiloa’s office in Lami and that he cashed the cheque. They have not suggested anyone else cashed the cheque for Mr Tuiloa. They therefore have to show that he is the one who cashed and received the benefit of the cheque. Mr Brodie said Mr Tuiloa received the cheque. However, you need to ask whether there is any independent evidence of this. If Mr Tuiloa’s signature appeared on the back, that would be such evidence. If teller 3 from the Bank of Hawaii had come to give evidence and said s/he identified Mr Tuiloa as the cashee or payee on that day, with that cheque, then that would be such evidence. If there was evidence from an employee at Seamech (not being Mr Brodie) that they received a telephone call from the Bank of Hawaii saying that Mr Tuiloa had presented with it at the Bank and checking that the cash cheque of $3850 should be paid to Mr Tuiloa, that would be such evidence. However, there is no such evidence.

[113]	What you have before you is a cheque that has been presented according to the markings on it, and which has been paid out again according to the markings as interpreted by Mrs Nagate. We have the time it was presented. We have another cheque, the cash wages cheque, cheque 2873 for $3863.78. That was presented on the same day, 22 October 1999. Both cheques are in court because Mr Brodie says he wasn’t sure which one was the cheque he says he gave to Mr Tuiloa. There is no question now but that that cheque was presented in the ordinary course of Seamech’s business with the Bank of Hawaii. It has no signature on the back. It is of a sum which Ms Nagate’s evidence would indicate is a large one for a teller. Do we infer therefore that no cheques at the Bank of Hawaii were endorsed? Or that an employee of Seamech bringing cheques would not be asked to endorse because they were recognised? There was no evidence to this effect but can an inference fairly be drawn? This is a matter for you.

[114]	Cheque 2873 for $3863.78 was presented at a different time, to a different teller, teller 4 (on the front of the cheque), from cheque 2870 ($3850). You will be able to see the stamp on the back of the cheque which indicates the time as in the morning. Is the lack of a signature on the back evidence that the same person banked both cheques? Or is the fact that they were banked at different times, with different tellers, evidence that two different people presented those cheques? 

[115]	Going beyond that, is it then possible to say Mr Tuiloa banked the second cheque? In that, we are entering the realm of speculation. What is needed is proof beyond reasonable doubt, and speculation does not assist you in this. 

[116]	There is other evidence before you as to the cheques. Exhibit P10 is a Bank of Hawaii Statement of Account relating to Seamech transactions. It indicates that a number of cheques were presented for Seamech on the day the $3850 cheque was presented, namely 22 October 1999. 

[117]	That list shows:

•	on 22 October 1999, three cheques noted as miscellaneous debit were presented – cheque 2874 in the amount of $26,078.50, cheque 2873 in the amount of $3,863.78 and cheque 2870 in the amount of $3850;

•	after cheque 2870 there were two further cheques presented on that day, namely cheque no. 2869 in the amount of $1,606.05 and cheque 2866 in the amount of $88.00.

There was one deposit on that day, of $84,9656.37, which according to the deposit slip (Exhibit P8B) includes the $81,312 payment from the Department of Fisheries (a Westpac cheque). 

[117]	Can you conclude on this that someone from Seamech attended at the Bank of Hawaii on 22 October presenting cheques 2874 and 2873, and depositing the sum of $84,966.37 and someone else presented cheque 2870? What about the other two cheques, numbers 2869 and 2866? We cannot say, because we do not have those cheques before us. We do not even have the other cheque/misc debit cheque before us to see what time it was presented and to which teller it was presented. We do not know by whom or at what time the other cheques – 2869 and 2866 – were presented or to whom they were made out or if they too were made to cash. We might speculate again that they were not cash cheques for they are not noted in the list as cheque/misc debit. But we do not know as there was no evidence about them. We might speculate that the marking cheque/misc debit indicates that those three cheques were presented for Seamech, and by Seamech. 

[118]	Again we are in the realm of speculation and again I emphasise that it is not speculation that is wanted, but evidence and proof beyond a reasonable doubt. Mr Chand, who was referred to in evidence as doing the banking, and Ms Pal said the accountant did the banking, was not called as a witness so we have no evidence from him as to which cheques he presented, if any. From the documentary evidence, you may conclude we simply do not know. If we do not know what cheques Seamech presented, can we say that Mr Tuiloa presented one of the cheques? 

[119]	This is a key issue in the State’s case. Have they proved it beyond a reasonable doubt? Or is there a reasonable doubt? That is a matter for you, with the application of common sense.

[120]	Cpl Cula: Police Officer Cula said he did the investigation in relation to the matter before you. He said that he commenced with the Task Force Unit in 2005 and the investigation was underway. He said he took the 2005 and 2006 statements from Mr Brodie. He said he executed the search warrants. He made enquires in relation to the tellers who received the cheques at the Bank of Hawaii but he said because it was a long time ago, the tellers could not be traced. 

[121]	He said Mr Tuiloa, the accused, came voluntarily to the office and was given all his rights, advised of all his rights and was asked questions and some records were put to him. Cpl Cula said it was he who recorded the caution interview statement with Mr Tuiloa and it was recorded in writing. He said that he wrote down what Mr Tuiloa said, and what he informed him about. He said the interview took place over several days and that Mr Tuiloa was given drinks of water and toilet breaks and there was time for him to be having lunch. He said that the typed version is a reproduction of the handwritten pages with some deletions for legal reasons. 

[122]	At that stage of the trial, you will recall that we adjourned to another courtroom to hear evidence from Ms Pal by video link. I will continue with Cpl Cula’s evidence, however, and go to Ms Pal’s later.

[123]	Cpl Cula was taken through the caution interview and you have that before you so I will not go through it. 

[124]	He was asked large number of questions as to how he conducted the investigation. He said ‘No’ to a large number of these questions, as to whether he had spoken to various persons Mr Tuiloa referred to in the caution interview and the letter he gave to Cpl Cula during the interview. As an example, Cpl Cula said he did not speak with Antoinette Foster at Seamech. Mr Tuiloa you will recall said that he saw Antoinette Foster at Seamech’s office when he said he went there to deliver the cheque to Mr Brodie. Cpl Cula said at first that he ‘did not know the name’ when Antoinette Foster’s name was put to him. He said he took no statement from her. He then said that Mr Tuiloa ‘did mention that’ but: ‘No I did not’ in response to whether he had spoken to her. 

[125]	You may consider that it would be important for a police officer conducting an investigation as to whether Mr Tuiloa had taken a cheque from Mr Brodie at Mr Tuiloa’s office in Lami to interview an independent witness as to whether on that day Mr Tuiloa in fact presented himself at the Seamech office. Ms Foster has not been called to give evidence before you. You may think Mr Tuiloa should have called her. However, you must also remember that Mr Tuiloa has no obligation to prove anything. He has no obligation to call anyone or to investigate anything. It is for the police to investigate, and it is for the State to prove its case beyond a reasonable doubt. 

[126]	In cross-examination, Cpl Cula was asked about a large number of boxes which were said to have been taken from the Fisheries Department. Cpl Cula said that no boxes were removed from Fisheries. Then he said that the large number of documents referred to were ‘for a different investigation altogether and a difference case, not for this one’. He said: ‘I uplifted these documents individually’, referring to the documents before the Court being those the State puts forward as documents supporting the case in respect of Mr Tuiloa. He repeated: ‘I picked out these documents individually.’

[127]	Again, you may consider that an investigation into whether Mr Tuiloa took a corrupt payment from Mr Brodie could have been assisted by more than going directly to documents specifically targeted. You may conclude that the investigation was restricted to documents referred to by Mr Brodie. We have already seen that the only cheques before you are the Westpac $81,000 odd Fisheries cheque and the two cheques Mr Brodie thought could be the one he said he gave to Mr Tuiloa. No other cheques are in evidence to see whether they were presented to Teller 3 or Teller 4, by whom they were presented or at what time. You may think this could have helped in determining who presented the $3850 cheque. Cpl Cula does not appear to have considered any investigation necessary beyond that which he did.

[128]	Cpl Cula said he commenced his investigation in 2005. He said in response to a number of questions that he did not speak to various named persons in the Fisheries Department. He said that it was ‘hard to find statements to enhance the investigation’. You may consider that if an investigating officer has not spoken to persons put forward as possibly having useful information, that officer will not know whether the information could be useful to the investigation or not. On the other hand, you may think it important.

[129]	As to Mr Brodie’s position, he said: 'Since Mr Brodie was a complainant I don’t see why I should conduct a caution interview when he was making a complaint’ that Seamech had paid money to Mr Tuiloa. In relation to a question that Mr Brodie only wanted to proceed if he was not implicated in any way, Cpl Cula responded: ‘Com again. I don’t known where you are coming from in your questions. Come again.’

[130]	He agreed he was aware that the matter was first referred to the police by Mr Grahame Southwick. He said he was not aware that documents were provided to the police only if Mr Brodie was not implicated in any way. 

[131]	You may consider that if a person comes forward with a story that another person has committed an offence, then that person’s evidence should be investigated thoroughly. That is a matter for you.

[132]	Ms Shereen Elizabeth Pal: Ms Pal is an Insurance Officer working in Sydney, where she went in 2003. From January 1999 to November 2003 she said she worked at Seamech Ltd as Office Manager and PA to the Managing Director, Mr Ross Brodie. She said that in October 1999 she was occupying that position. 

[133]	Asked about the $81,000 odd transaction with the Department of Fisheries, she said ‘yes,’ she 'was aware’ of it. She said whilst she was there (at Seamech) she saw the giving of the quote for a quantity of reels and the cost and timeframe in which ‘we’ll be ready’. She said she saw the cheque from Fisheries. It is ‘so long now,’ she said, however she said: ‘I remember very well seeing the cheque after we [released] the reels’. 

[134]	She said: ‘Okay, I remember we had a call from Fisheries that the cheque was ready and to come to collect it. After a while Mr Brodie went. He asked me to give him the cheque. He then went and when he came back I saw a cheque was missing.’

[135]	She said that this was ‘after lunch some time’ but should 'couldn’t say the exact time’. She said Mr Brodie was gone for 45 minutes to an hour or it ‘could be longer’. It was a 15 minutes drive from Seamech office to Fisheries, she said. 

[136]	She said Mr Brodie ‘did show me the cheque for $80,000 odd. It was something which I took off him and locked in the till. When he came back he gave me the cheque book and the cheque.’ Asked whether Mr Brodie discussed anything at that time, she said ‘Yes, he did’. She said the discussion was ‘related to the payment received’. She said ‘Well he wasn’t’ too pleased when he got back so that was when I asked him what happened. 

[137]	Asked ‘Did he tell you,’ She replied ‘yes he did’. Asked whether she saw anything on the cheque butt, she said ‘yes I did’. She said Mr Brodie had written something on it but the cheque book had gone missing ‘We couldn’t find it’. 

[138]	A matter that is relevant here is that Mr Brodie gave no evidence as to what he wrote if anything on the cheque butt. Therefore, there is no evidence before you as to what, if anything he wrote. Ms Pal did not write on the cheque butt. The cheque book was missing and was not in evidence before you. Therefore, we have no evidence of what if anything was written on the cheque butt to coincide with the amount of $3850. again, we are in the realm of speculation. Again, what we need is evidence and proof beyond a reasonable doubt.

[139]	In cross-examination she was asked how she could remember from 1999 what happened then. She said that this was on issue always on her mind because of the missing cheque book. You may think this is significant – that is, that it was the missing cheque book which Ms Pal’ says meant she remembered. She did not say that it was because of any discussion with Mr Brodie, or because of a cheque missing or because of Fisheries or because of Mr Tuiloa. You will need to consider this in the context of the whole of her evidence. 

[140]	Ms Pal said that Seamech had police all the time to the office because there were break-ins and robberies. She could not say when the cheque book ‘went missing’ She could not physically say when it went missing. She referred to 2000 and 2001. Whether any other cheque book was missing, she said: ‘Not as far as I know.’ 

[141]	She said there was an employee at Seamech named Antoinette Foster, who sat nearby as it was a very small office. You will recall that Antoinette Foster is the employee Mr Tuiloa identified as being at the Seamech office when he says he went there on 21 October 1999 with the $81,000odd cheque, and he had thought she was a boy.

[142]	Ms Pal was asked whether she remembered Mr Tuiloa on 21 October 1999 coming to the office. She said: ‘Yes, I remember, yes. I remember the gentleman yes. I cannot specifically say 21st but I remember him coming to the office.’

[143]	She then said to another question: ‘As far as I can remember Mr Brodie went and picked it up [the cheque]. He received a phone call to come to Fisheries.’ She said she did not go with him.

[144]	She said she could not remember how many cheques were cashed on 21/22 October 1999. ‘How do I remember that. No way. I don’t remember.’

[145]	As to who ‘used to cash cheques’, she said: ‘We very seldom got cash cheques and always the accountant put them into the account.’ Asked who did the banking she said the accountant did. She did not. 

[146]	She said Seamech had an account with the Bank of Hawaii and had no other account at that time. She repeated that ‘as far as I can remember Mr Brodie went and collected the cheque. Yes.’ In answer to a question whether Mr Tuiloa came to Seamech bringing cheques, She said: ‘Yes I do remember him coming a couple of times.’ 

That was the end of the prosecution case. 

[147]	(A)	Defence Case: You then heard me give the accused, Mr Tuiloa, several options. He could have given sworn evidence, or unsworn statements, or he could have remained silent. This is because the onus is on the State to prove his guilt at all times. Accused persons do not have to prove anything. As earlier noted, Mr Tuiloa elected to give his evidence on oath and submit himself to cross-examination. 

[148]	Mr Malakai Tuiloa: Mr Tuiloa said he was a Fisheries Officer at the time relevant to the matters before the court. He said that the whole objective of the Fisheries programme in which he was involved was to ‘jumpstart the industry focused on export and trying to bring money into the country’. He said the aim of the programme was to establish markets to assist local fisherman. It involved training in Savu Savu. A Transpacific company was set up in the western region. Snapper was to be caught through deepsea fishing and catching only through a landline is hard work. Therefore the fishermen needed hydraulic drill system. Tenders were called through the Tender Board and there was one local tender and 3 overseas. He said his senior officer, George Madden, was involved. 

[149]	He said: ‘We went to see Mr Ross Brodie at Seamech’. ‘We’ referred to a Mr Tuivie and himself. He said Mr Tuivie is now with a non government organisation, PCDF. 

[150]	He said he had no contact with Mr Brodie in 1998. As to invoice 4436, he said he did not see it in 1998. He said that he did not ask Mr Brodie to cancel it. He said: ‘We actually started in 1999 when the budget was approved. He said he did not request that invoice 4437 be made out so as not to show 5% discount. 

[151]	He said he was involved in the submission to the major tender board. Invoice 4454 went with papers to the major tender board. He said he believed that the original of invoice 4454 and his submission and the approval of the Permanent Secretary went to the Tender Board.

[152]	As to invoice 4489 he said ‘I believe that 4489 was a quotation that went together with a submission to Amelia [Tuge] but that submission went missing’. 

[153]	He sent it was necessary to make a request and prepare documents for the Major Tender Board and they will approve or otherwise will not approve. He said all major purchases – that is, of $10,000 go to the Major Tenders Board.

[154]	He said the Major Tender Board approved the proposal in April and it too accounts six months to prepare the LPO.

[155]	He said he was working to performance indicators and also that there as a need to spend the budget within a particular time. He said ‘I had to spend the budget and 6 months is just not on’.

[156]	As to Key Performance Indicators, he said we are measured on that. As to the budget, if the budget is not spent then next year the moneys will not be allocated to that budget.

[157]	He said the project was ‘very very delayed’. They fishermen had been trained and promised and discussions were held because they were also concerned. 

[158]	When he was told the cheque for $81,000 was ready he said that he made sure the cheque was delivered and a receipt received. He said that around that time there was also an allegation that he had used that money. There were all sorts of allegations.

[159]	Mrs Tuge herself told him the cheque was ready. He asked her to bring the cheque and he signed in the book and brought the cheque to Mr Brodie. He said that this was the usual procedure – of signing in the book. There had been other times as well where he picked up a cheque and other staff picked up cheques. 

[160]	This happened at times when it is necessary to speed up the whole process.

[161]	He then went through the issue of whether he had gone to Seamech office or Mr Brodie had come to him at the Lami office. 

[162]	Mr Tuiloa’s evidence was that he had taken the cheque of $81,000 or so to Mr Brodie. His evidence was that Mr Brodie had not come to his office to collect the $81,000 cheque. His evidence was also that he had not taken any cheque of $3,850 from Mr Brodie whether at his office in Lami or anywhere else. 

[163]	He said in answer to the question did he take the money:

I have been denying that for the last 8 years.

[164]	He said he denied absolutely the story that had been given to the Court by Mr Brodie as to the circumstances surrounding the tender of the Puka puka hydraulic droplines. He said he denied absolutely Mr Brodie’s contention that there was an issue of 5% discount offered by Mr Brodie and that he had asked for the 5% discount to be concealed. He denied absolutely that he had taken the $3850.00 cheque. He denied absolutely that he had been involved with the corrupt conduct as alleged.

[165]	Mr Tuiloa’s evidence was relatively short. He gave evidence about the fishing program, he gave evidence about the project, he gave evidence about his going in February 1999 to Seamech office in relation to the fishing project because that was when they received the approval for funding. He said that at that time, he went to the Seamech office with Mr Tunai. 

[166]	Mr Tuiloa was not cross-examined, as I mentioned earlier, with Counsel for the State saying this did not mean that the State agreed with his evidence. 

[167]	We then went to further witnesses. In my original remarks, I said there were two witnesses in addition to Mr Tuiloa. But there were three, including a witness I did not refer to, Mr Simione Tuivela who gave evidence before the Court as well as Mr A. Tunai and Mr Aminio Raimuria.

[168]	Mr Simione Tuivela: Mr Simione Tuivela gave evidence that he was a civil servant. He said that he is currently employed with the Ministry of Fisheries and Forests. 

[169]	Mr Tuivela said he began working in the Department on 26 February 1976. He was in the Department for a number of years and came into the Ministry in 1995, when he was Chief Economist in the Department of Fisheries. He said he had been working there for about 32 years.

[170] 	Mr Tuivela said he is a graduate of the University of the South Pacific with a Bachelor of Science, and a Master of Science from a University in the United Kingdom.

[171]	He said he was aware of the program which was called ‘the Snapper Project’, apparently from 1999. He said he was aware of it and that the project was overseen by Mr Tuiloa. 

[172]	He said he saw the article in the Daily Post which said there were problems within the Department of Fisheries, ‘along the lines of "Shady Deals"’. He said the article was of great concern to him when he read it on Saturday 25 March 2000. He believed he received a few phone calls about it.

[173]	Mr Tuivela said he cannot remember being asked to do an investigation of the matter. In fact, what he did, he said, was on his own initiative in his own Department, to conduct an investigation in relation to that article. 

[174]	He had also, he said, had drawn to his attention the letter to the editor from Mr Brodie that was published in the Daily Post of 27 March 2008. 

[175]	Mr Tuivela said further that he was aware of the Public Service conducting an investigation, headed by Rupeni Nxxx, who was the head of Finance. He said that no report was sent to him in relation to that investigation.

[176]	He also was not cross-examined on the evidence he had given, but Counsel for the State said that this did not mean the State agreed with what Mr Tuivela had said.

[177]	Illiavi Tunai: Mr Illiavi Tunai then gave evidence. He said that in 1999 he was working with Mr Tuiloa as an Assistant Leader. He said that he was aware of the hydraulic drills tender and quotation. He said he went with Mr Tuiloa to the Seamech office in early 1999 in relation to that project. He said he went with Mr Tuiloa on that occasion to Mr Brodie’s office in the government vehicle which I understand was the government vehicle attached to the Fisheries Department.

[178]	Mr Tunai said that the purpose was to consult with Mr Brodie other with Mr Tuiloa himself in relation to those hydraulic reels. 

[179]	He was shown Exhibit 4454, the quotation of 24 February 1999 and he said that he had seen a copy of it before. He said he had seen the copy of quotation 4489 of 7 October 1999 also. 

[180]	He was when asked where Mr Tuiloa had come to him with a cheque and showed it to him. He said that Mr Tuiloa did. He said: ‘I was in my room and he showed me the cheque. He was excited about the cheque for the payment of the hydraulic reels, of $81,000. 

[181]	Mr Tunai said he observed Mr Tuiloa from his room – that is, from Mr Tunai’s room to the next office. He did not go with him to that office, but he said that soon after seeking Mr Tuiloa going to the office next door to him, he saw that Mr Tuiloa left the office, being the office building, and went to the vehicle outside. He said he saw Mr Aminio Raimuria was accompanying Mr Tuiloa.

[182]	Mr Tuvai that Mr Tuiloa went alone with the driver in the vehicle and Aminio came back. It was the government, red twin can. It was driven by someone because, he said, ‘we had a driver’. When asked whether he knew when or if Mr Tuiloa came back to the office at Lami, he said he could not say as to the time because he (Mr Tuwai] must have gone out of the office.

[183]	Asked if he saw Mr Brodie in the office at Lami that day, Mr Tuiwai said: ‘No, I did not see him in the office.’ 

[184]	He said: ‘I would have been able to see him if he comes into the office.’

[185]	Mr Tunai was not cross-examined. However, Mr Elliot said that this did not mean that the State accepted Mr Tunai’s evidence. 

[186]	Aminio Raimuria: Mr Aminio Raimuria then gave evidence. He said he had been with Fisheries for almost 28 years, and he now is Acting Fisheries Officer. In 1999, he said, he was project officer on a small case development project in the Department of Fisheries under the supervision of Mr Malakai Tuiloa.

[187]	He said that in October 1999 he was still with this project in the Department. He said he could recall Mr Tuiloa was excited because of the release of the cheque for the project. He was shown Exhibit P5, the cheque for $81,000 or so. When he saw it, he said: ‘I just had a glance at it before he left.’

[188]	Mr Raimuira said: ‘The only thing I know is that he, Mr Tuiloa, came with that $81,000 cheque. I don’t know who issued it,’ he said. He repeated that Mr Tuiloa was very excited. 

[189]	Mr Raimuira was asked how he could tell Mr Tuiloa was very excited. ‘I could see his facial expression,’ he said. He said then that Mr Tuiloa excused himself and he, Mr Raimuira accompanied him right into the entrance where the vehicle was parked. He said Mr Tuiloa went into that vehicle. He said: ‘The driver of our section, Mr Rahim, I could still remember, and I could still recall there was red car GP5550. 

[190]	He was asked if he saw Mr Brodie on that day. He said: ‘No, he did not see Mr Brodie.’ He said that if Mr Brodie had been in the office, he (Mr Raimuira) would have seen him because ‘my office’, he said, ‘is right close to Mr Tuiloa’s office’.

[191]	Mr Raimuria was not cross-examined either. Mr Elliot said this did not mean that the State agreed with his evidence. 

[192]	That was the close of the defence case.

[193]	Conclusion

In conclusion, I need to say this. I have concluded my remarks about the evidence and about the law. And you will shortly be taken and kept in the Assessors Room to consider your opinion. As I have told you, you may consult with one another if that is what you would like to do about that opinion. Any consultation must be free and open. Each of you individual must come to your own decision. Your opinions do not have to be unanimous. But it would be desirable if you could agree on them. You will not be asked for reasons why you formed your opinion.

[194]	You may freely discuss the case amongst yourselves. However, you cannot and should not talk to anyone else about it. We may ask only that you report your progress from time to time. If anyone asks, just tell them that I have told you not to talk about it to anyone other than yourselves. Now is the time for you to question yourselves and make your decision.

[195]	You must be able to consider the evidence and come to your opinions without discomfort. There will therefore be opportunities for breaks if you wish to take ‘time out’ from your discussion or consideration of the issues. During any breaks, please be careful not to let anyone overhear your discussion. It is probably better for you to restrict tour talks to the Assessors Room and if or when you should come out, think about other matters to talk about. Reserve discussions on the matters in this trial to the Assessors Room. 

[196]	If you have any question about the trial or you are unsure on any matter of law or evidence, please ask. Just write it down and ask my Clerk to pass it up to me. I’ll consider it, discuss it with Counsel and if necessary bring you back into open Court and do my best to provide you with an answer.

[197]	When you have finished your task and reached your own opinion, please let my Clerk know. Don’t tell the Clerk your decision. We’ll hear about that in open Court.

[198]	When we have all gathered together in Court my Clerk will ask each of you individually for your opinion. You will each be asked first about the First Count, which is titled ‘Official Corruption’: contrary to section 106(a) of the Penal Code, Cap 17

[199]	Your opinions can be either 

(a)	Guilty or Not Guilty of Official Corruption.

[200]	Your opinion will then be recorded.

[201]	If the opinion of you all is ‘Guilty’ then we will not proceed to the alternative Count. However, if the opinion of all of you or any one of you is ‘Not Guilty’ on the First Count, we will proceed to the Second Count, which is titled ‘Extortion by Public Officer’: Contrary to section 107 of the Penal Code, Cap 17

[202]	On that Count, each or any one of you who has said ‘Not Guilty’ on the First Count will be asked your opinion about the Second Count. Your opinions can be either:

(2)	Guilty or Not Guilty of Extortion by Public Officer.

[203]	Your opinion will then be recorded.

[204]	It then comes to me, for me to give my decision which will be given and written down.

[205]	I am not bound by your opinion. However, you are society’s representatives at this trial and in this case. What you tell me will carry great weight with the Court when I come to deliver my judgment.

[206]	So on your oaths you have a duty to perform as judges of fact.

[207]	You may now retire to consider all the matters in the evidence and as I have explained to you here. Thank you for your attention. Madam Clerk, please make arrangements for the Assessors to withdraw and consider their opinion.

Justice Jocelynne A. Scutt
High Court
Suva
24 June 2008

REDIRECTION

At request of Prosecution, in relation to the statement that it was necessary for the State to prove Mr Tuiloa ‘cashed the cheque’. 

I believe this arose from the paragraph extracted below, which came from my recounting the evidence from Mrs Nagate, the ANZ Bank teller. 

[112]	You may consider Mrs Nagate’s evidence important because it relates to the cheque which is said to be the ‘bribe’ or ‘corrupt payment’ or ‘overpayment’ of Mr Tuiloa, the accused. It is for the State to prove that Mr Tuiloa received this cheque and received the benefit of the cheque: that is, their case is that Mr Tuiloa received the cheque from Mr Brodie at Mr Tuiloa’s office in Lami and that he cashed the cheque. They have not suggested anyone else cashed the cheque for Mr Tuiloa. They therefore have to show that he is the one who cashed and received the benefit of the cheque. Mr Brodie said Mr Tuiloa received the cheque. However, you need to ask whether there is any independent evidence of this. If Mr Tuiloa’s signature appeared on the back, that would be such evidence. If teller 3 from the Bank of Hawaii had come to give evidence and said s/he identified Mr Tuiloa as the cashee or payee on that day, with that cheque, then that would be such evidence. If there was evidence from an employee at Seamech (not being Mr Brodie) that they received a telephone call from the Bank of Hawaii saying that Mr Tuiloa had presented with it at the Bank and checking that the cash cheque of $3850 should be paid to Mr Tuiloa, that would be such evidence. However, there is no such evidence.

I called the Assessors back in order to deal with the point raised by Mr Elliott for the State, and said as follows:

[1]	Thanks for coming back. I am sorry to get you back but I thought it was better to get you back before you really got started. I’ve just been asked to clarify one point. And it’s - I don’t - I promise I won’t repeat myself ad nauseum but I would just like to go back to the points on each count that must be proven beyond a reasonable doubt and if I said anything else must be proven beyond a reasonable doubt then disregard that. I want you to focus on the matters that need to be proven beyond a reasonable doubt. 

[2]	All the other evidence of course is background evidence going to that. But the actual features are in relation to the first count as to official corruption what the State must prove beyond a reasonable doubt is:

1.	Between 22 October 1998 and 31 October 1999

•	Mr Tuiloa was employed in the public service
•	He was charged with the performance of any duty by virtue of such employment
•	He corruptly
•	Received – and I emphasise received
•	Any property or benefit of any kind – here, a $3,850.00 cheque from Mr DR Brodie
•	For himself
•	On account of anything already done – here securing a tender in favour of Seamech Ltd
•	In the discharge of duties of his office

So it’s those issues the State must prove beyond a reasonable doubt. The actual receipt of the cheque.

[3]	In relation to the second count - 

If you do not believe that’s proven beyond a reasonable doubt - each of those elements is proven beyond a reasonable doubt, then your must – the State must prove:

2.	That Mr Tuiloa the accused
Between 22 October 1998 and 31 October 1999

•	was employed in the public service
•	was charged with the performance of any duty by virtue of such employment
•	that he accepted

Any reward beyond his proper pay and emoluments – and here,
There is said to be a reward being a $3,850.00 cheque from Mr DR Brodie; and
That reward – the cheque of $3,850.00 is said to be beyond Mr Tuiloa’s proper pay and emoluments.

[4]	So I just wanted to clarify that to make sure that there was no misapprehension as to what the elements are of each offence and the first offence, if those elements are not proven beyond a reasonable doubt, then you turn to the second and ask are those elements that I read out proven beyond a reasonable doubt. 

[5]	The receipt of the cheque and the acceptance of the cheque is one of those elements that must be proven beyond a reasonable doubt. 

Thank you. You may be excused. Thank you.

END OF SUMMING UP AND RECALL

Justice Jocelynne A. Scutt
24 June 2008
[Inclusion of Recall Completed 11 August 2008 (extracted from transcript). Summing Up Completed for Delivery at Trial]