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State v Prasad [2011] FJHC 213; CRC024.2010 (12 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 024 OF 2010

STATE

vs

1. ANAND KUMAR PRASAD f/n Alfred Shiri Prasad
2. REENAL PRANEEL CHANDRA f/n Rajendra Chandra
3. REENAL RAJNEIL CHANDRA f/n Rajendra Chandra
4. DEO NARAYAN SINGH f/n Ram Brij Singh
5. SHIRLEY SANGEETA CHAND f/n Alfred S. Prasad
6. ATISHMA KIRTI SINGH f/n Niranjan Singh
   

Ms N. Tikoisuva and Mr. W. Pillay for the State
1st and 2nd Accused absent
Mr. H.A. Shah for the 3rd and 6th Accused
4th Accused in Person
Mr. I. Khan for the 5th Accused

Date of Hearing: 11 April 2011
Date of Ruling: 12 April 2011

RULING NO. 2
NO CASE TO ANSWER

[1] The fourth, fifth and sixth accused all make application to the Court to find that there be no case to answer for them, at the end of the prosecution evidence.

[2] Section 231(1) of the Criminal Procedure Decree 2009 reads –

"When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the Court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence."

[3] The test for a case to answer in the High Court was laid down by the Court of Appeal in Kalisoqo – Cr. App. 52 of 1984 where that Court said that if there is some direct or circumstantial evidence on the charged offence, then a judge cannot say that there is no evidence on a proper construction of section 293(1). This was later confirmed, again in the Court of Appeal in Mosese Tuisawau – Cr. App. 14 of 1990.

Fourth Accused

[4] The fourth accused is charged with all of his co-accused in a general conspiracy to defraud and faces eleven other charges of forgery, causing money to be paid on forged instrument and money laundering. He submits that he never had a meeting with the first accused, presumably saying that there is no evidence against him of conspiracy nor of agreement to be in joint enterprise on the substantive counts.

[5] In Kalisoqo the Court of Appeal advised Judges when dealing with rulings on trial within a trial and on case to answer applications "to express himself with an economy of words" and it is with that advice taken that this Court finds that there is an abundance of circumstantial evidence implicating the fourth accused in both the conspiracy and in the substantive charges, and consequently I find a case to answer against him and he is put to his defence.

Fifth Accused

[6] The fifth accused faces only the conspiracy charge and none other. Mr. Khan on her behalf submits that there is no evidence whatsoever of any agreement between the fifth accused and others; that there is no evidence of her meeting others and therefore the State has not proved beyond reasonable doubt that a conspiracy was in place.

[7] The fifth accused is the sister of the first accused who faces the majority of the charges. She worked in the ANZ Bank, which bank processed the cheques of the victim company. She made admissions in two interviews she conducted with her employers' investigators. Without authority she entered into suspicious banking transactions. The circumstantial evidence against the fifth accused is compelling. I find that she has a case to answer and is put to her defence.

Sixth Accused

[8] The sixth accused faces the conspiracy charge along with two substantive charges of money laundering. Mr. Shah submits that all of the evidence produced against her by the State relates to periods in 2008, when the period of the conspiracy is particularized to be between 1st April 2006 and 31st December 2007.

[9] The submission made by Mr. Shah is correct. There was a lot of activity which perhaps could be regarded as suspicious into the account of the sixth accused but that was all starting 2 January 2008, three days after the end of the conspiracy period.

[10] There is however, a transfer into the account of Shahill and Shohill; on the authority of a forged fax purportedly from Turtle Island on 28th December 2007. When the fax was received the money was sent immediately, again in suspicious circumstances, to the account of Shahill and Shohill, a company in the sole proprietorship of her husband, the 4th accused. There is evidence before the Court that although the account was not hers, the sixth accused was the person responsible for attending to the day to day operations of the company and this evidence does raise circumstantial evidence that she would have known of the provenance of such a large sum of money. She is educated to Form 6 level and could be presumed to be privy to her husband's financial affairs. It is not for me to act on a paucity of evidence but to find the existence of some evidence. With this circumstantial evidence available I therefore find that there is a case to answer on the conspiracy for the 6th accused.

[11] Mr. Shah submits that the monetary figures claimed in the money laundering charges are excessive, and unsupported by evidence. For this reason he submits that there should be no case to answer for the 6th accused on the two money laundering counts (Counts 28 and 29).

[12] A check of the 6th accused's bank account shows four deposits between 24th January 2008 and 11th February 2008, totaling $16,579.40. On the assumption that $579.40 was an amount legitimately derived from business proceeds, then the figure of $16,000 appears to be quite correct. Again another check of the bank account for the dates specified in Count 29, reveal a multitude of withdrawals (the largest being $10,000) totaling at least $17,000 so that figure again must be correct.

[13] I find a case to answer against the 6th accused on all charges she faces.

[14] For completeness, I find a case to answer against the 1st, 2nd and 3rd accused.

Paul K. Madigan
JUDGE

At Lautoka
12 April 2011