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Fiji Independent Commission Against Corruption v Tuisolia [2010] FJHC 485; HAC127.2008 (1 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 127 OF 2008


FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION


V


SAKIUSA TUISOLIA


Counsels : Mr. M. Tennakoon with Ms. H. Matakitoga & Ms. T. Waqabaca for
FICAC
Mr. D. Sharma & Mr. P. Sharma for the Accused


Hearing : 4th, 5th, 6th, 7th, 8th, 11th, 12th, 13th, 14th, 15th, 18th, 19th, 20th, 21st, 22nd,
25th, 26th, 27th, 28th, 29th October 2010 and 1st November 2010


Summing Up : 1st November 2010


SUMMING UP


  1. Madam and Gentlemen Assessors. We have come to the final stage of this trial. You were listening to all witnesses and both Counsels. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
  2. Both Counsel for FICAC and Defence Counsel made their submissions. That is their duty. The prosecutor to submit how he proved the case and the Defence Counsel to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused is guilty or not guilty to the offence he is charged.
  3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.
  4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
  5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty, if you are satisfied of that you are sure that he committed the offence alleged.
  6. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of my duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
  7. The accused Sakiusa Tuisolia is charged with 6 counts. As per the information. The 1st, 2nd and 3rd counts are under Section 279 (1) (b) of the Penal Code for Fraudulent Conversion.
  8. Very briefly to say that the accused Sakiusa Tuisolia wrongly converted property of Airport Fiji Limited to his personal benefit.
  9. It will be helpful if we consider the relevant section of the Penal Code. It states as follows:

"Any person who-


(b) being a director, member or officer of any company or other body incorporated by or under the provisions of any Act, fraudulently takes or applies for his won use or benefit, or for any use or purposes other than the use or purposes of such company or other body, any of the property of such company or other body."
  1. Now we will consider what are the ingredients of this section in other words what are the elements that prosecution should prove in this case.
  2. It is agreed between parties that:
  3. Disputed issues among parties can be listed as follows:
  4. What do you mean by Fraudulent?

Fraudulent means a person is said to do a thing fraudulently if he does that thing with intent to defraud.


  1. Considering the available evidence, you have to decide whether the accused had fraudulent intention. If your answer is affirmative you have to consider the next element. Whether he used it for his personal benefit or used for any purpose other then the purpose set out by the company.
  2. The accused is charged with another 3 counts of keeping fraudulent accounts. Punishable under Section 306 (1) (b) of the Penal Code. Section 306 (1) (b) of the Penal Code states as follows:

"Any person who-


(b) being a director, manager or public officer of any body corporate or public company, as such receives, or possesses himself of, any of the property of such body corporate or public company, otherwise than in payment of a just debt or demand, and, with intent to defraud, omits to make, or to cause or direct to be made, a full and true entry thereof in the books and accounts of such body corporate or public company".


  1. The ingredient of the offence can be itemized as follows:
  2. It is agreed between parties that the accused was the Chief Executive Officer and possessed a company property namely credit card. First two ingredients are proved and there are no issues in that.
  3. Now you have to consider whether the prosecution proved other 4 ingredients among others. The evidence before the court is that the entries are made at the General Ledgers (GL) and some information are extracted in the form of Cost Centre Report (CCR).
  4. It is submitted to the Court that the credit card expenses were bundled and entered under the sundry costs/supplies, office supplies of the Headquarters.
  5. On a mere perusal of a credit card statement you will find that there are several expenditure such as Hotel accommodation, on overseas & local, travel local and overseas, entertainment, board expenses, corporate social etc. If we peruse the Cost Centre Report we find there are separate columns or field to enter these expenses. Do you think that these entries are made at a wrong place?
  6. Next ingredient is whether the accused made or direct to make this entry. The prosecution claims that he is the person in charge of entire operation of the company therefore he is responsible for the entries also. Further, all CCR were sent to him including the headquarters CCR. Especially being the manager of headquarters cost centre, he knows where it is parked and he should have been more cautious when those expenditure are incurred by him.
  7. Further the accused submits that the CCR is prepared for the purpose of checking the budget and finance operation and there is no significance in these reports. Prosecution submits that when you consider that purpose alone the relevant CCR at P49 and P50 shows that there is a variance of the budgetary provisions.
  8. Considering the entries in the CCR and the General Ledger do you think it is made at the wrong folio? You have to consider the facts of the case and decide.
  9. The defence submits that practice was there when the accused took over and handed it over. Therefore he is not responsible for it. Further they submit that there may be an irregularity but not an offence. But the prosecutor submits since the accused was in charge of all operations including the finance he has done this to cover up his malpractice or to conceal his unauthorized expenditures. You have to consider who is correct in this issue. Further the accused claims that he reformed the company and made the company to grow up to the level, had not considered this improper, if so, when considering all factors you have to decide whether this is a mere financial irregularities or purposely done to cover up something. If it is irregular he commits no offence if it is to cover up something that you have to decide.
  10. The next most important element is intention. The word intention is also known as mens rea, it means a person does certain thing knowingly what he is doing. For an example, if you stab a person on his chest and neck several times, and he dies, we can presume that your intention was to kill that person. If you stab, a person on his thigh and he dies your intention may not be for killing but for causing injury.
  11. The next important element is defraud. In the Oxford Advanced Learner's Dictionary of current English (New 7th Edition, 2005) "defraud" is taken to mean "to get money illegally from a person or organization by tricking them"; "fraudulent" is taken to mean "intended to cheat somebody, usually in order to make money illegally"; and "execute", in law, is taken to mean "to make a document legally valid", or "to perform a duty", or "to do a piece of work".
  12. If I further explain the word "intent to defraud" means that you must act dishonestly to prejudice another person's right knowing you have no right to do so. There is no need to prove an intent to cause economic or financial loss. However, when a person does prejudice another's right, it can also include prejudicing economic rights.
  13. Considering the evidence before you, you have to decide whether the accused had an intention to defraud. The prosecutor says that he did all entries to cover up his shady transactions. Therefore he had the intention to defraud. If not he should have directed the employees working under him to make entries in the correct folios to make it transparent. When these expenditures reflected under sundry expenditure a person who doesn't have the know-how of these accounting procedure, will simply can be misled. The million dollar question before us is, why it is parked at sundry, office supplies when there is a specific provision available.
  14. You have to decide whether these entries were done to cover up the extravagances expenditure of the CEO and management as claimed by the prosecution or just a procedural error claimed by the defence. Since it is factual matter I will leave it to you, without any of my comments and opinions.
  15. You heard both Counsels were narrating the facts with their own emphasis and interpretations. You are not bound to consider any of the comments on facts of case including mine. But if it is of certain guidance you may accept and consider.
  16. Prosecution called 5 witnesses to prove their case even though they have listed 26 names in the list of witnesses. They confirmed to 5 witnesses only. It is the prerogative of the prosecution, they can decide whom to call and not to call.
  17. The Accused is not bound to say anything but the accused opted to give evidence on his behalf and not called any other witnesses. Once again I have to remind you that the accused is not bound to make any reply to the prosecution because the burden of proof is will always be with the prosecution.
  18. You heard the evidence of Ms. Sanjana Mishra, who is the financial accountant of Airport Fiji Limited during the period in question. I must caution you all when considering her evidence because she was arrested by the FICAC and she was given immunity. The defence submits that she is giving evidence on agenda. You with experience in the society and in the field of accountancy have to analyse her evidence. Is she telling the truth or giving evidence in favour of the prosecution. It is a factual matter for you to decide.
  19. Ms. Sanjana Mishra was giving evidence for several days. She even subjected to cross examination. Briefly she says the credit card was given to the accused and he categorize and authorize the payment when it comes to her after formalities she does the payment and documentation.
  20. She identifies the original documents and the photocopies of the documents.
  21. Ms. Mishra submitted to Court that the accused initially identified the expenditures and sent the credit card statement to her through the manager finance or some times directly. It is submitted that, she is the person who handled the major part of credit card payments and documentation.
  22. Subsequently due to irregular payment the bank was given a standing order for direct debit. You have to ask a question whether this is appropriate in a Government institution where every cent is accounted and to go through the finance regulation procedures. Accused claims there is no specific policy for the credit card but there is a procedure adopted. Accused being an experienced government servant for more than 14 years as he claimed, handling in this way is acceptable or not you have to decide.
  23. Prosecution submits that in numerous transactions the credit card statement was just sent for filing and those expenditures were not explained. The defence claims that the details are in the credit card statement itself so there is no need to explain the expenditure.
  24. Now we peruse a credit card statement for an example P25 XX transaction dated 04.10.2005 at Tanoa Plaza Hotel Suva the credit card amount $272.00 statement is available with comments which says "Accommodation for briefing of Cabinet Sub Committee". The relevant memo is available at P27 LXXIX which says "Attached is the receipt for our accommodation and meals on 3/10 at the Tanoa Plaza in Suva. While on business for the Master Planning and briefing of Cabinet sub committee on Airport (?)". The bill from the hotel also available in this transaction which is at P27 LXXXIII. As per Hotel the expenditure stands as follows:
TXN
DATE
ITEM
CHARGE
CREDIT
COMMENT
1.
03/10/05
Accommodation
143.00

2.
03/10/05
Telephone
4.50
Ext 1104 Internet
3.
03/10/05
Sundry Income
1.00
Internet pages
4.
03/10/05
Zest Beverage
39.50
#1 Dkt#6180 Tuisolia Mr. Sakiusa
5.
03/10/05
Zest Lunch
49.50
#1 Dkt#6180 Tuisolia Mr. Sakiusa
6.
03/10/05
Zest Beverage
9.50
#1 Dkt#6286 Tuisolia Mr. Sakiusa
7.
03/10/05
Zest Dinner
25.00
#1 Dkt#6286 Tuisolia Mr. Sakiusa
8.
04/10/05
Visa Card
272.00
PAID





TOTAL: $0.00

If we see the credit card statement it gives only the following information date 04 October 05. Place: Tanoa Plaza Hotel Suva amount $272.00.


  1. Now you can ask a question whether submitting a credit card statement above is sufficient for the account purpose. If you carefully observe the above hotel bill there are two expenditure on beverages for $39.50 and $9.50 is it permitted by the government or company regulations. There is a policy and procedures for meals and accommodation expenditures.
  2. P25 XX is not a questioned transaction therefore I took that as an example to discuss the above issue.
  3. The prosecution submits that the expenditures which are not supported by memos, bills and receipts are done with fraudulent intention. The defence submits that the bills and receipts are submitted and there is no criminal intention therefore there is no fraudulent intention hence these charges fails on its merit.
  4. Considering the available material the Airport Fiji Limited didn't have proper policy regarding the credit card expenditure that makes the person in authority to be more responsible and transparent. The more the power you acquire the more you have to be transparent. I presume this comes from Gospel.
  5. The accused claims as per the contract he is empowered to certain level of expenditure that is true but the question is can he act arbitrarily. For an example please see P25 IX (a) transaction dated 02/04/2005 (it is entered on the May/June Bank Statement) at Vinod Patel for $98.85. The explanation given by the accused in Court is that he bought a vacuum cleaner for his official car. The question is can the accused do the purchase as he stated. Isn't there a procedure for purchasing. It is acceptable by all parties that the Airport Fiji Limited is a fully owned government commercial company. Can this type of purchase justified as Accused claims. It is a question of fact you all to decide.
  6. There are some other issues to be considered even though it was not raised for a ruling. I consider it is worth to mentioning to you. Some of the original documents were missing at FICAC. The explanation given by the FICAC officials are that these documents were kept in the open area, and this case is one of earlier cases where the FICAC was commenced its work so they didn't have a proper register. It is not an acceptable thing but considering the explanation you may excuse.
  7. Considering the photocopies it was submitted to Court that the FICAC, even before obtaining the originals had obtained copies via facsimile (fax). Those copies are available and produced in Court.
  8. When the FICAC obtained the originals from Ms. Sanjana Mishra of Airport Fiji Limited she was permitted to take photocopies of the original. She gave evidence in Court and submitted that she personally took photocopies of the original and identified those copies in the open Court.
  9. Even though the originals were missing there are two sets of independent copies are available to Court for consideration. There are no contradiction marked between any of these copies.
  10. You should be mindful that the position of the accused, he claims that he submitted all memos, bills and receipts with the credit card statement.
  11. Prosecution witnesses Sanjana Mishra and Rohit Prasad were given immunity by the Prosecution in other words they were also treated as suspects in this case. Are they giving evidence on agenda? If so they would have got caught in the cross examination. Is there any situation, where these two witnesses contradict themselves or with each other. You have to decide. If they have contradicted they are not reliable witnesses or they are not telling the truth and favouring, if not, the observation can be different.
  12. Consider all evidence before you and come your own conclusion. If you are satisfied beyond reasonable doubt of the accused's guilt and you are sure of it. You must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused's guilt, and you are not sure of it. You must find the accused not guilty as charged.
  13. There are 6 counts in the information sheet. You have to consider the charge and evidence to each and every count and take your own decision.
  14. As I explained to you in my opening address and at the beginning of the summing up you have taken your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.
  15. Now let me ask both Counsels whether they have anything to be addressed to you.

Prosecutor Mr. M. Tennakoon Do you want anything to be addressed to Assessors?
Mr. Tennakoon: No I am Happy
Defence Counsel: Mr. D.Sharma Do you want anything to be addressed to Assessors?
Mr. Sharma: No I am satisfied.


  1. Since no request from the Counsels, You may retire to deliberate. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S Thurairaja
Judge


At Suva


Solicitors
Office of the Fiji Independent Commission against Corruption for State
R Patel & Company for Accused

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