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Fiji Independent Commission Against Corruption v Devo [2010] FJHC 112; HAC177.2007 (9 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 177 of 2007

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

INOKE DEVO

Date of Hearing: 3rd March – 6th April 2010
Date of Judgment: 9th April 2010

Counsel: Mr. S. Dissanayake & Ms E. Leweni for FICAC
Mr. R. Chaudhary for Accused

JUDGMENT

[1] The assessors have expressed mixed opinions. The majority opinions on counts 1, 2 and 8 and the unanimous opinions on counts 4, 5 and 6 are that the accused is not guilty.

[2] The majority and unanimous not guilty opinions relate to the official corruption charges.

[3] To prove the offence of official corruption the prosecution must lead evidence that the accused being a person employed in the public service received or asked for any benefit for himself or for others on account for something already done or to be done afterwards in the discharge of his official duties.

[4] Proof of receipt of some benefits alone is not enough to sustain an official corruption charge. There has to be a nexus between the receipt of benefit and what was done by the accused in the discharge of his official duties as a public servant.

[5] If the nexus is proven beyond a reasonable doubt the accused is guilty of official corruption. But if no such nexus exists or if there is a reasonable doubt about it then the accused cannot be found guilty of official corruption.

[6] The prosecution relied on the evidence of Nitesh Chand Maharaj to prove counts 1 and 2. The evidence on count 1 is that the accused did not seek any benefit on account of renewing the liquor licence of Toberua Island Resort. The evidence is that another member of the Liquor Tribunal asked for fish when the Tribunal visited the Resort to inspect its facilities before the licence was renewed. The accused was seen receiving fish when it was distributed among all the Tribunal members by the person who made the arrangement for the fish.

[7] The evidence on count 2 is that the accused asked for fish and alcohol in January 2007 from Nitesh Maharaj while the liquor licence of Toberua Island Resort was renewed in April 2007. Nitesh Maharaj said there was no issue regarding the renewal of the Resort’s liquor licence when he supplied fish and alcohol to the accused. He said he felt obliged to comply with the request of the accused because the accused held a position of authority.

[8] In these circumstances, it is open to the assessors to be left with a reasonable doubt whether the accused received or asked for a benefit from Nitesh Maharaj on account of renewing the liquor licence of Toberua Island Resort which is an essential element of the offence of official corruption.

[9] The prosecution conceded that no evidence was led on count 4. The assessors have properly rendered not guilty opinions on this count.

[10] Counts 5 and 6 relate to the evidence of Malakai Ravai of Foster’s Group Limited. On three occasions in 2006 Foster’s Group Limited applied for Occasional Liquor Licences and were issued by the accused. In the same year, Alumita Raceva from the Commissioner Central’s Office called Malakai Ravai on behalf of the accused and asked for liquor. Malakai Ravai supplied the liquor on two occasions. Neither Alumita Raceva nor Malakai Ravai in their evidence suggested that the liquor were requested or supplied on account of the accused issuing Occasional Liquor Licences. In these circumstances, it is open to the assessors to entertain a reasonable doubt about the guilt of the accused on counts 5 and 6.

[11] Count 8 relates to Sachin Ram an employee at the Commissioner Central’s Office. The charge is that the accused abused the authority of his office by forcing Sachin Ram to collect waste food from various restaurants during official working hours and that he would sack Sachin Ram if he refused to follow his directive. Sachin Ram gave evidence of collecting waste food on the directive of the accused during official working hours but he did not give evidence of any threat by the accused. The only evidence of threat to Sachin Ram is in the caution interview of the accused but the accused qualified his answer by saying he was only joking about sacking Sachin Ram if he did not follow his directive. In these circumstances, the majority not guilty opinions are available on the evidence.

[12] The assessors have expressed unanimous opinions that the accused is guilty on counts 3, 7 and 9. These counts relate to charges of abuse of office arising from the authorisation of government vehicles and deployment of staff during working hours by the accused to collect liquor for unofficial functions. The evidence on these charges is overwhelming. The guilty opinions are available on the evidence.

[13] I direct myself in accordance with my summing up. On counts 1, 2, 4, 5, 6, and 8, I am not satisfied of the guilt of the accused beyond a reasonable doubt. I accept the assessors’ majority opinions on counts 1, 2 and 8 and the unanimous opinions on counts 4, 5 and 6 and find the accused not guilty and acquit him accordingly.

[14] On counts 3, 7 and 9, I am satisfied of the guilt of the accused beyond a reasonable doubt. On these counts, I accept the assessors’ unanimous opinions and find the accused guilty. I convict the accused on counts 3, 7 and 9.

[15] The verdicts are as follows:

Count 1: Official Corruption - Not Guilty - Acquitted.

Count 2: Official Corruption - Not Guilty - Acquitted.

Count 3: Abuse of Office – Guilty - Convicted.

Count 4: Official Corruption - Not Guilty - Acquitted.

Count 5: Official Corruption – Not Guilty – Acquitted.

Count 6: Official Corruption – Not Guilty – Acquitted.

Count 7: Abuse of Office – Guilty – Convicted.

Count 8: Abuse of Office – Not Guilty – Acquitted.

Count 9: Abuse of Office – Guilty – Convicted.

So Ordered.

Daniel Goundar
JUDGE

At Suva
9th April 2010

Solicitors:
Office of the Fiji Independent Commission Against Corruption for Prosecution
Messrs. Gordon & Chaudhary Lawyers for Accused