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Fiji Independent Commission Against Corruption v Nemani Summing Up [2013] FJHC 467; HAC37A.2010 (17 September 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 37(A) of 2010

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

vs.

FOANA TUKANA NEMANI

Counsel : Mr. R. Aslam with Ms. Puleiwai for FICAC
Hearing : 9th, 10th, 11th, 12th, 13th September 2013

Closing Submission : 16th September 2013
Summing Up : 17th September 2013

SUMMING UP

1. ROLE OF THE JUDGE AND ASSESSORS.
   

Madam Assessor and Gentlemen Assessors:

(i) The learned Prosecutor, Mr. Aslam has concluded his duty in this trial by leading evidence for the prosecution and making his closing submissions. There will be no more evidence or closing submissions in this court as the accused was neither present nor represented by a counsel throughout this trial. It is now my duty to sum up the case to you.

(ii) You will be given the opportunity to retire for your deliberations after my summing up. Once, each of you, madam assessor and gentlemen assessors, reach to a conclusion on your final opinion, the court will re-convene and your individual opinion will be asked. You will not be asked to give reasons for your opinions at any time. The opinions of you three need not to be unanimous. Nevertheless, it would be desirable if you could agree on the final opinion. As the presiding judge of this case I am not bound by your opinions in delivering the final judgment of the court. Nevertheless, I assure you, that due weight and recognition will be given to your opinions when I deliver the final judgment.

(iii) In my Summing Up I will direct you on the relevant areas of law which apply to this particular instance. You must accept that legal position and act upon that. In another words, you must apply the law as I direct you to the facts of this case. Facts, as you heard and saw in this court room, are entirely within your domain. You are the masters of the facts or judges of the facts of this case. It is entirely up to you assessors to determine whether Ms. Foana Tukana Nemani, (herein after referred as the accused) being the Deputy General Manager (herein after referred as DGM) of the Fiji National Provident Fund (herein after referred as FNPF) committed the offences of "Extortion by a Public Officer" and "Abuse of Office" whilst she was holding the office of DGM of the FNPF.

(iv) In reaching to your final opinion, you have to rely on the evidence you saw and heard, from the witness box and the documentary evidence tendered in court, and nothing else. You should simply disregard what you saw or heard from the printed or electronic media regarding this case or any related incidents alleged to have taken place in FNPF, before or during the trial. At the same time, any views or opinions expressed by your friends, family members, relatives or anybody should face the same fate. It is you who have to draw your own conclusions based on the evidence in this case.

(v) The learned counsel for the prosecution, when making his closing submissions highlighted certain facts and tried to formulate his opinion according to the case theory of the prosecution. You need not to accept that version unless you agree with his contention. Same principle applies to me as well. If I express any opinion or appear to do so regarding any of the facts, do not follow it, simply because it came out of the Judge. It is solely your task to form your own opinions. In my summing up I might not touch all the areas or evidence which you think to be important. Please feel free to give due consideration to all the evidence you see fit, though I mention it or not.

(vi) You have to decide the credibility and truthfulness of each and every witness. In doing so, you can rely on not only what you heard, but what you saw as well. The way witnesses offered evidence from the witness box, how they face the questions from court, were they firm on their stand or evasive, can be helpful in determining their demeanor and in turn to judge their credibility as well. In furtherance to assessing the trustworthiness of the witnesses, in this instance, you have to pay a considerable attention to the set of documents tendered to the court by the prosecution. This is a case basically depended on such documents. Apart from assessing the truthfulness and the credibility of the witnesses, you are supposed to follow the same procedure in respect of the documents as well.

(vii) I would like to emphasis that you madam assessor and gentlemen assessors, you were chosen to be judges of the facts of this trial as you represent a cross section of the pulse of the society. Your common sense and the experience in day to day life must come into operation when you deliberate this case. That common sense and the life experience have to be utilized in deciding or assessing the truthfulness or honesty of witnesses and credibility of their evidence. In that task, you have the liberty to accept the whole version of a testimony of a witness or a portion of that testimony and reject the rest. You can refuse to accept even the whole testimony of a witness.

(viii) Coming back to the issue before hand, I must inform you that you must not be prejudiced or sympathetic towards anybody or any party involved in this case. You had the privilege of seeing the salary slips of the accused and have a rough idea as to how much she was getting her salary as monthly payments and through her contract of employment the other perks that she was enjoying. You are not supposed to be over emotional over the facts and figures of the documents put forward for your deliberation and think in a prejudicial manner to the accused. This back ground does not warrant for you to be sympathetic towards the 'innocent employees' and be harsh on the accused. Your final opinion should not be tainted with passion towards anybody. Anyway, remind yourselves the oath that you administered at the commencement of this process, "give your true opinion without fear, favour or ill will in accordance with the evidence and law".

2. THE BURDEN OF PROOF
   

(i) When approaching the matter in hand, you madam assessor and gentlemen assessors, I would like to draw your attention to certain basic rules which govern our criminal justice system. The accused is presumed to be innocent, though she is charged before this court with two counts, until she is found guilty by this court. Proving her guilt is the sole burden of the prosecution, as it was the prosecution, who accuses the accused of committing the offences of "Extortion By Public Officer" and "Abuse of Office". The duty of the prosecution to prove the case against the accused continues throughout the trial and it never shifts to the accused. The law does not impose any obligation or duty upon the accused to prove her innocence or otherwise.

(ii) When proving the case against the accused, the law expects the prosecution to prove it beyond reasonable doubt. That means the prosecution must prove the case for you to be 'sure' of the guilt of the accused and nothing else will discharge their burden. There is no specific formula where you can have a mathematical precision to be 'sure'. It is all about your day to day experiences and common sense come into play once again. The ultimatum is that you, madam assessor and gentlemen assessors, must be 'sure' of the guilt of the accused based on the presented evidence in court by the prosecution. If you have a 'reasonable doubt' over the guilt of the accused that benefit should immediately be awarded to the accused. Such a doubt, as stated, should definitely be a 'reasonable doubt'. A mere possible doubt or trivial and imaginary doubts will not create a reasonable doubt. It should be an actual or substantial doubt which shakes the foundation of the case of the prosecution. The doubts should stem out of the evidence what you saw and heard in court.

(iii) Before proceeding any further, I have to alert you on a very important fact. The accused was not present in court during the trial. She was not represented by a counsel either. Neither the court nor you had the opportunity to listen to her side of the story. As I elaborated in the previous paragraphs, the accused has no burden to prove anything, inclusive of her innocence. Therefore, had she been here physically present in court, she could still remain silent and demand the prosecution to prove her guilt. You cannot, at any time assume that the absence of an accused in a trial is an indicator of his or her guilt. The absence of an accused does not relieve the prosecution from proving its case against the accused beyond reasonable doubt. You are not supposed to speculate or assume as to the reasons for the absence of the accused and must not hold the absence of the accused against her. You have to deliberate this case very carefully according to the evidence you heard during the trial as if the accused is here before the court. You would have noticed that the court questioned almost all the witnesses called by the prosecution and asked you whether you need any clarification from any of them. That is simply to safe guard the rights of the accused to the maximum possible extent and give a clear picture for you assessors about the other side of the story. At the same time, it has to be appreciated that there is no evidence put forward by the accused before this court to undermine or contradict or explain the evidence of the prosecution led before you so far.

(iv) The same principles apply to the Caution Interview of the accused as well. It is at your liberty to go through it as it was tendered to court by the prosecution. The contents were not read in open court as the learned prosecutor informed court that he does not rely on the same. The accused, don't have any duty to answer all the questions put forward by the interviewing police officer. As if in the trial inside the court house, the accused can remain silent during the caution interview as well.

3. THE INFORMATION

(i) The accused is been charged by the Fiji Independent Commission Against Corruption on the following two counts.

First Count

Statement of Offence (a)

EXTORTION BY PUBLIC OFFICERS: Contrary to Section 107 of the Penal Code, Cap 17.

Particulars of Offence (b)

FOANA TUKANA NEMANI, during the period between 26th of July, 2005 to 26th January 2007, at Suva in the Central Division, whilst being employed in the public service namely as Deputy General Manager and Chief Operations Officer of the Fiji National Provident Fund, accepted a payment of $26, 487.12 from the said Fiji National Provident Fund, beyond her proper pay and emoluments.

Second Count

Statement of Offence (a)

ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap. 17.

Particulars of Offence (b)

FOANA TUKANA NEMANI, on the 5th day of September, 2006, at Suva in the Central Division, whilst being employed in the public service namely as Acting General Manager and Acting Chief Executive Officer of the Fiji National Provident Fund, and in abuse of the authority of that office, did an arbitrary act, namely authorized the payment of a responsibility allowance of $33,333 to Olota Tulumani Rokovunisei without the authority of the High Salaries Commission and the Fiji National Provident Fund Board, thereby causing prejudice to the rights of the said Fiji National Provident Fund.

4. ELEMENTS OF THE OFFENCE

(i) The 1st Count of "Extortion by Public Officers" under section 107 of the Penal Code contains the following elements.

• The accused,
• being in the Public Service,
• accepts or took a reward
• for the performance of her duty as a Public Officer and;
• which reward was beyond her proper pay and emoluments.
  

(ii) Following elements are contained in the count of "Abuse of Office" contrary to section 111 of the Penal Code.

• The accused,
• being in the Public Service,
• did an arbitrary act,
• in abuse of authority of his/her office and
• such act was prejudicial to the rights of Fiji National Provident Fund.
  

5. THE CASE OF THE PROSECUTION

(i) The 1st prosecution witness was Ms. Pretty Pritika, the Senior Auditor of Fiji National Provident Fund. She had joined the FNPF as a Graduate Trainee of its audit department and works there ever since. She had been a member of the Audit team who investigated against Ms. Foana Nemani, the then Deputy General Manager and the accused of this case. It was in year 2007.

(ii) Ms. Pritika had been assigned the task of investigating the payments received by the accused outside her salary. Prosecution Exhibit No. 1 (P1), a portion of the Internal Audit Report (dated 19th February 2007) prepared by the Investigation team and Exhibit No. 2 (P2), a portion of another Internal Audit Report (dated 22nd February 2007) were tendered to court for your perusal. According to Ms. Pritika, one of the investigated issues about the accused was the payments of "Responsibility Allowance". They had found that the accused had received a "Responsibility Allowance" while such permission was not granted by her 'contract' with the FNPF and the Human Resources Policy of the FNPF. She said the appointments of the Chief Executive Officer (CEO), General Manager (GM) and the Deputy General Manager (DGM) were been made by the Board of FNPF and their salaries and payments were guided by the respective contracts with the FNPF and its (FNPF) then Resources Policy. The conclusion of this witness was that even though the accused had received a 'Responsibility Allowance', neither the Board of FNPF nor the Higher Salaries Commission had approved that payment.

(iii) Prosecution Exhibit No. 3 (P3) the contract of the accused with FNPF signed on 29th June 2004 and Prosecution Exhibit No. 4 (P4), the contract of the then CEO, Mr. Olota Tulumani Rokovunisei dated 28th May 2004 were tendered to court by Ms. Pritika. She claimed that there is no provision in those contracts to claim "Responsibility Allowance" as those refer to all the relevant salaries and allowances to which they are entitle. The entire set of Board minutes from 5th April 2004 to 27th June 2006 were tendered to court as Prosecution Exhibit No. 5 (P5). Exhibit No. 5A, the minutes dated 26th January 2005 was submitted to court by this witness and said that there is no approval granted by the Board of FNPF for the "Responsibility Allowance" to be paid to the accused.

(iv) The Prosecution Exhibit No. 6 (P6) was a print of an e-mail dated 5th September 2006 addressed to the accused by the then CEO Mr. Olota requesting the "Responsibility Allowance". Ms. Pritika said acting in the capacity of the Acting CEO, the accused had approved the "Responsibility Allowance" of Mr. Olota without obtaining the Board approval. This "Responsibility Allowance" had been granted to Mr. Olota, then CEO, for overseeing the work of Chief Investment Officer in the Investment Division of the FNPF. Ms. Pritika, tendered the Board Minutes from 25th July 2006 to 27th February 2007 marked as Prosecution Exhibit No. 7 (P7) and highlighted the Minutes of 25th July 2006 as P-7a, in supporting her point.

(v) Ms. Pritika, being a member of the internal Audit team of the FNPF said that they were restricted from investigating the payments made to the Executive officers during the time the accused and then CEO were holding their respective high offices. She claimed that the CEO, the DGM and other Executive Officers were guided by their respective contracts and not by the FNPF Human Resources Manual, which was tendered to court marked as Prosecution Exhibit No. 8 (P8).

(vi) The Senior Auditor of FNPF at present concluded by saying that, performing these types of transactions without the approval of the FNPF Board, being the two top most executives of FNPF, with lack of transparency, do have an impact on FNPF as executives are supposed to act as trustees of the funds of the members. Finally she said that the accused being the DGM and then CEO had not carried out their fiduciary duty to the best of their ability and this lack of duty of care amounts to 'abuse of office'.

(vii) In answering the questions from court, Ms. Pritika said that there were no guidelines laid down during that period regarding the "Responsibility Allowance". The issues in these two specific transactions as she viewed are, that those were not approved by the FNPF Board, lack of transparency and CEO and DGM had approved their respective payments by themselves violating their own contractual terms.

(viii) The second (2nd) witness of the prosecution was Mr. Himmat Lodhia. He had been a Director/Board member of FNPF from 2004 – 2006 under the Chairmanship of Mr. Anare Jale. He had been appointed to this directorship by the Minister of Finance as the representative of the employers. He described the duty of the Board as to look after the funds of its members, both employers and employees. Mr. Lodhia said that the Board of Directors had the power to decide and plan policies and it was on the top of all the employees. CEO and the DGM, Mr. Olota and the accused were next in line as the executive appointees from the Board of Directors on 'contracts'.

(ix) Prosecution Exhibit No. 3 (P3), the contract of the accused and Prosecution Exhibit No. 4 (P4), the contract of then CEO Mr. Olota were identified by Mr. Lodhia, as a Board member during that time (29th June and 28th May 2004). He claimed that it is the Board which has to decide the remunerations of any particular officer appointed by the Board. Once the Board deliberates the salary, other benefits and perks, that contract had been referred to the Higher Salaries Commission for their approval. According to Mr. Lodhia, once the approval is given by the Higher Salaries Commission, the Board can order the payments to an executive. In another words, what he said was, if the Higher Salaries Commission refused to endorse the 'draft contract' containing the remunerations of an executive, even the Board cannot pay the proposed salary to their employee. He confirmed that one executive cannot approve a remuneration of another executive without the approval of the Board. He went on to say both the CEO and accused are not entitled for any "Responsibility Allowance" as it does not state in their contracts.

(x) Mr. Lodhia confirmed that he participated to the Board Meeting held on 2nd December 2005, after referring to Board Minutes marked as P5 and the CEO and the DGM were also there on behalf of the management. The Board Minutes on 2nd December 2005 was tendered to court marked as P5-B. Referring to page 11 of the same, the witness said that on that day, though the CEO advised the Board that he will oversee the Investment Division until a new appointment is made, he did not mention any thing about any allowance to him for doing so. Thus, he said, the Board has not approved any allowance to be paid to the CEO. Mr. Lodhia reiterated that the accused cannot approve any allowance to be paid to the CEO or vise versa, without the approval of the Board of Directors of the FNPF and the Higher Salaries Commission.

(xi) Referring to Register of Board Papers of the FNPF since January 2004 to end of December 2006, which was tendered to court marked as Prosecution Exhibit No. 9 (P9), Mr. Lodhia confirmed that there is no Board Paper to say anything about the "Responsibility Allowance" and therefore, he concluded, that the Board did not make any decision to pay "Responsibility Allowance" either to then CEO or the accused.

(xii) Mr. Lodhia did not agree with the court's suggestion that the CEO can pay the disputed "Responsibility Allowance" with the allocated money to him for the institute's operational costs. He stressed the Board approval and the Higher Salaries Commission's endorsements are needed for the CEO to pay something goes beyond the contracted remunerations.

(xiii) The third (3rd) witness was Ms. Amalaini Kuruvakadua, the Director of Development Services at the Ministry of I-Taukei Affairs. She was the Manager (from 2008-2010) and Senior Economic Planning Officer (from 2005-2008) of the Higher Salaries Commission. It was said that in 2011, the Higher Salaries Commission was abolished. The said Commission, according to the witness, had the powers to determine the salaries of the senior executive officers in the government, commercial companies of the government, statutory authorities, local governments and the other senior executive positions specified by any other written law.

(xiv) Higher Salaries Commission Act and Higher Salaries Commission's Operating Guidelines and Procedure were tendered to court marked as Prosecution Exhibit No. 10 (P10) and No. 11 (P11) by Ms. Amalaini. She confirmed the procedure described by prosecution witnesses Ms. Pritika and Mr. Lodhia. According to the witness, when employers of the senior executives make proposals to the Commission for remunerations before the contract is finalized, the Commission's decision will be in co-operated in the final contract. The final contact have to be sent to the Commission to see whether their decision is been complied with.

(xv) Referring to schedule 1 of the Higher Salaries Commission's Act (P10), Ms. Amalaini said that CEO and the DGM of the FNPF (among other several officers) were been recognized as executive officers and therefore the final authority for their remunerations rests with the Higher Salaries Commission. While citing the Higher Salaries Commission's Act, she told court that once the Higher Salaries Commission approves the remuneration of an executive, nobody can alter it. She read the interpretation of the term 'salary' in the said Act and told that, it means 'the base salary inclusive of all the allowances and benefits payable to the executive officer during his term under the contract'. Further elaborating the term, she said, that 'all the allowances are also considered as benefits' and 'what is approved by the Higher Salaries Commission as remunerations can be considered as salary'. [sec 11 (3)]

(xvi) Ms. Amalaini perused P3, the contract of the accused with the FNPF and said that it was approved by the Higher Salaries Commission for its remunerations and she cannot accept or receive any "Responsibility Allowance" as she is not allowed to do so according to the approved contract. Whilst citing P4, the contract of then CEO of FNPF, Mr. Olota, the witness said that he is also not entitle to any "Responsibility Allowance" according to the approved contract. She further said that no submission was made by the FNPF to make "Responsibility Allowance" to its CEO or DGM during her tenure in the office of Higher Salaries Commission and the CEO of FNPF cannot grant the "Responsibility Allowance" to the DGM or vise versa, without the approval of the Higher Salaries Commission. Her conclusion was that it is the Higher Salaries Commission, which has to be decided whom to be paid the "Responsibility Allowance", and if so, how much it should be and the nature of such payment.

(xvii) In answering to questions put by court, Ms. Amalaini said that since the 'salary' of the accused covers everything she earns from the FNPF, she should not have accepted any allowance to oversee things 'down the line'.

(xviii) Mr. Aisake Taito, who is holding the office of the CEO of the FNPF at present, offered evidence for the prosecution next. He said, that being the CEO, he gets authority from the Chairman of the Board and he cannot delegate that authority. Describing the FNPF hierarchy, Mr. Taito said that CEO is in level 6 and the DGM is in level 5. Tendering the minutes of the Board Meeting dated 7th December 2007 as Prosecution Exhibit No. 12 (P12) to court, he said, a policy was designed and approved by the Board in respect of "Responsibility Allowance" after these incidents and that applies only to level 4 (Managers) and level 3 (Principles and team leaders) but not to level 5 and 6. He confirmed that all entitlements of the executives are stated in their respective contracts and he is not aware of any instance where the Board granted any approval to level 5, 6 executives to claim this "Responsibility Allowance". He went on to say that the authority to change any entitlement stated in the contract of any executive is with the Board and the CEO cannot change the terms and conditions. He further stated that without the approval of the Board, CEO cannot make any payment to any executive. Mr. Taito stressed that DGM cannot approve any payment to CEO because such powers delegated to the CEO by the Board cannot be re-delegated to anybody.

(xix) Responding to the questions of court, Mr. Taito said that he can oversee any vacant position in his institute, but when it comes to monitory remunerations for such work he has to go back to the proper authority, the Board.

(xx) Ms. Epenisa Mutukula, a former Principal Investment Officer of FNPF testified next. She said that the pay rolls of the executive officers were handled by the Investment division. She confirmed that she checked the calculations of a payment of "Responsibility Allowance" to then DGM, Ms. Foana Nemani (the accused) and approved the payments once the approval was given by the Chief Operating Officer. She tendered the said calculation sheet to court marked as Prosecution Exhibit No. 13 (P13). That contained the calculation of the arrears payment of "Responsibility Allowance" from 15th February 2005 to 22nd July 2005. In furtherance to that she tendered a letter written by CEO to DGM as Prosecution Exhibit No. 14 (P14) and the letter CEO approved the "Responsibility Allowance" of $20, 000 per annum to the accused as Prosecution Exhibit No. 15 (P15). Ms. Epenisa said she proceeded to make the payments of $5,991.18 as the arrears "Responsibility Allowance" to the accused because the CEO had approved it. It was shown to court by the witness, the signature of the accused in the Payment Voucher placed when accepting the cheque. The Payment Voucher and the cheque were tendered to court marked as Prosecution Exhibit No. 16 and 17 (P16 and (P17).

(xxi) According to Ms. Epenisa, after the arrears of "Responsibility Allowance" was paid to the accused, she had got paid this "Responsibility Allowance" in every fortnight along with her salary. Identifying a set of Salary slips of the accused the witness tendered those as Prosecution Exhibit No. 18 (P18). The salary slips showed the first fortnight payment of the "Responsibility Allowance" to the accused had started on 4th August 2005. The amount was $769.23.

(xxii) Ms. Epenisa further said that she processed the "Responsibility Allowance" for the CEO, with the approval of the accused who acted as the acting CEO at that time. She identified P6 and said that was the document the DGM/accused placed her approval for a "Responsibility Allowance" of $50,000 per annum to the CEO. The calculation sheet of CEO's "Responsibility Allowance" was tendered to court marked as Prosecution Exhibit No. 19 (P19). According to P19, the net amount received by the CEO, Mr. Olota was $22,773.18. Ms. Epenisa had approved the payment voucher and the same was tendered to court as Prosecution Exhibit No. 20 (P20). The cheque dated, 6th September 2006 corresponding P20, the Payment Voucher amounting to #22,773.18 was tendered to court as Prosecution Exhibit No. 21, (P21).

(xxiii) When court questioned the witness as to the 'difference' in the 'pay slip' marked as P18 before and after 4th August 2005 in respect of the 'allowances", she could not properly clarify that and said that she has to go through the documents to give a specific answer.

(xxiv) Mr. Mervyn Low testified next. He testified that he was an Assistant General Manager in FNPF when he retired in 2006. He confirmed that his post came under the ambit of Higher Salaries Commission. He recalled that in 2005, that there was a re-shuffle in responsibilities among executives according to the directives of CEO. Mr. Low said with the new directives, some of his work was taken away from him and instead additional work were given. According to him, even though the increase of work was substantial, neither he was given nor did he request any "Responsibility Allowance".

(xxv) In responding to questions of court, Mr. Low said that during his tenure in FNPF he has never come across of the term "Responsibility Allowance", though they were paid "Acting Allowances" on certain instances.

(xxvi) John Konrote, a former Assistant General Manager of FNPF told court that he is one of the signatories in the FNPF during the period in issue. He identified his signature in the documents tendered to court as P16 (Payment Voucher) and P17 (Cheque) and confirmed that an amount of $5991.18 had been paid to the accused or she had received the said amount.

(xxvii) Mr. Isireli Tagicaki, the Chief Investigator of FICAC was the last witness of the prosecution. He said that, this particular investigation was referred to FICAC by the FNPF. He along with the investigating team had lifted certain documents from the FNPF, recorded statements from witnesses and searched the FNPF premises in the course of the investigation. At the close of the investigation, the finding was on the basis of "Responsibility Allowance". FICAC investigating team had separately done the calculations and verified the amounts which were given to them by FNPF officers. The "Summary of Responsibility Allowance paid to Foana Nemani" was tendered to court marked as Prosecution Exhibit No. 22 (P22). Mr. Tagicaki demonstrated in court the breakdown of the salary of the accused for the relevant duration and said the net payment she received was a total of $26,487.12 for the whole period. The fortnight payment of $769.23 had been receiving since 5th August 2005 to 25th January 2007. Apart from that an arrears of $5,991.18 had also been received by the accused, as described by the witness. Further to this demonstration, the witness confirmed that he recorded the caution interview of the accused after giving her all the legal rights. The caution interviewed statement was tendered to court marked as Prosecution Exhibit No. 23 (P23).

(xxviii) When the court confronted the witness as to why the payments to the CEO and the DGM of FNPF, as prosecution claims, did continue for a considerable period of time, if such payments were illegal, he said that he did not look into that aspect during his investigation. Further, he re-iterated that the accused was in public service as she was appointed by the Board. Referring to question numbers 55 – 61 of the Caution Interview, the Investigating Officer said that the act of the accused was not a mistake but deliberate.

6. ANALYSIS

(i) The first legal issue which has to be clarified is whether the accused was in the 'public service' during the charged period or not. This issue applies to both the chargers. According to the Fiji National Provident Fund Act, the Board has the power to engage and appoint a staff consisting of a General Manager who shall be the Chief Executive Officer of the Board and such other officers or servants according to the opinion of the Board to carry out the provisions of the Act. Every member of the FNPF Board and every person appointed by the Board shall be deemed to be a person employed in the Public Service. As a matter of law, I am directing you that the DGM of FNPF was in the 'Public Service' as identified and defined in the Penal Code. If you are going to accept P3, the contract entered into between the Board of FNPF and the accused, the accused's appointment was made by the Board. In that event, Foana Nemani, the accused was the Deputy General Manager of FNPF in terms of P3, the contract, during the relevant period to these charges.

(ii) The next legal issue is to clarify the role of the Higher Salaries Commission. The Higher Salaries Commission Act was in operation since December 1983 to 2011. One of the functions of the Commission was to consider and determine the salary of the CEO and other officers of every corporations and bodies identified by the Act. It further says that when the salary payable to any person is fixed under this Act, that amount cannot be exceeded. The Act identified all the benefits, facilities or advantages, whether money or otherwise received by any person as part of his or her terms and conditions of employment as 'the salary'. As a matter of law, I am directing you that the Higher Salaries Commission Act specifically identifies the salaries of the CEO and the DGM of FNPF are to be determined by the Higher Salaries Commission. Ms. Foana Nemani, the accused, can be considered as the DGM of FNPF during the charged period, if you are ready to accept P3, the contract of the accused and the FNPF.

(iii) As far as the 1st charge of "Extortion by a Public Officer" is concerned, the prosecution claims that there is no provision in the employment contract of the accused regarding the "Responsibility Allowance" and therefore she is not entitle for such an allowance. The learned prosecutor called number of witnesses and produced several documents to show that the accused had accepted or received a sum of $26,487.12 as the "Responsibility Allowance" from 15th February 2005 to 25th January 2007. It was further said that no approval was given by the Board or the Higher Salaries Commission for such a payment. Citing the letter of then CEO, Mr. Olota (P15) prosecution argued that the accused though given additional duties as the contract allows to do so, she was performing in the capacity of the DGM. You have to satisfy yourselves that the accused had received the charged money of $26,487.12. If you are sure of that, then it is your duty madam assessor and gentlemen assessors, to decide whether the acceptance of that Responsibility Allowance was beyond her proper pay and emoluments. As I said earlier, you have to use your common sense and practical life experiences to assess whether you are in agreement with the prosecution and if so, whether you are 'sure' of the guilt of the accused for the 1st charge.

(iv) The same principle applies to the 2nd count of 'Abuse of Office' as well. This charge is based on the footing that the accused had approved the "Responsibility Allowance" of then CEO, Mr. Olota, as the Acting CEO when she did not have such an authority to do so. Before proceeding further, you have to be mindful of the fact as to what an 'arbitrary act' is. An 'arbitrary act' is an act nothing more than the exercise of one's will or pleasure or opinion or preference without being guided by the rules and regulations laid out in a given scenario. Such an 'arbitrary act' must be in abuse of the authority of its author's office. It can be said that one abuses the authority of his or her office if he or she uses his position for some illegitimate agenda and acts in contravention to the institutional procedures. The person doing so acts in a bad faith for an improper motive to harm someone or to give someone an advantage or favour. To have an overall view of what 'abuse of office' is, you must consider the motivation factors existed, if there was any. According to the prosecution, the accused in this instance, had approved the "Responsibility Allowance" of then CEO, in the capacity of the Acting CEO, simply because the CEO had approved her "Responsibility Allowance" prior to this. If you accept this version of the prosecution and conclude that the accused had an improper motive or acted in bad faith and used her position of office to favour the CEO for him to have a financial advantage, this element of the offence can be said to have proven. It is left open to you, madam assessor and gentlemen assessors to decide, whether the accused had acted in abuse of office by approving the "Responsibility Allowance" of the CEO of FNPF, being a subordinate of him.

(v) It is not enough for the prosecution to prove that the act of the accused was arbitrary and it was an abuse of authority of her office. They must prove beyond reasonable doubt that such act was prejudicial to the rights of another person, here in this instance, prosecution argues that, the rights of the FNPF were prejudiced by the acts of the accused. They claim the accused being the 2nd most superior person in the hierarchy had acted in violation of her fiduciary duty as a trustee of the funds of the members. It is you who should decide whether the alleged act of the accused, as prosecution charged, would affect the FNPF in a prejudicial manner. The prejudice caused can be either specific or general in nature. If you madam assessor and gentlemen assessors are satisfied for you to be sure that these elements of the 2nd count are proved by the prosecution, the accused can be found guilty to the 2nd charge as well.

(vi) For the 1st count of 'Extortion by a Public Officer' and 2nd count of 'Abuse of Office' you have to come to a finding whether or not the accused should have followed the procedure elaborated by the prosecution, namely, obtaining the prior approval of the Board and the Higher Salaries Commission before doing anything with "Responsibility Allowance". If you are fully satisfied that the accused must have obtained their prior approvals, then you must consider whether the accused though honest and reasonable, acted in a mistaken belief that she had the authority to approve the CEO's "Responsibility Allowance" and claim her own "Responsibility Allowance". Mistake of fact exonerates criminal responsibility if it can be shown to you that the 'belief' to perform such act was honest and reasonable. It is the duty of the prosecution to prove beyond reasonable doubt that the act was not a result of mistake of fact, but deliberate. In coming to a conclusion, you have to appreciate the conduct of a reasonable and a prudent man or a woman who holds the office of DGM in a responsible place like FNPF, which handles monetary transactions of the funds of its members.

(vii) The prosecution has to prove each charge beyond reasonable doubt. That means elements of both charges must be proved beyond reasonable doubt. You madam assessor and gentlemen assessors, have to consider the evidence though led as a whole, separately for each count/charge and assess separately. I remind you once again that the absence of the accused should not be an disadvantages factor for her when you are deliberating this case. At the same time, the accused must get advantage of the facts which are favourable to her, irrespective of her absence. If there is any reasonable doubt derived out of the evidence led before this court, the benefit of such a reasonable doubt must give to the accused without any hesitation.

(viii) Finally, I have to tell you that this case proceeds only against Ms. Foana Tukana Nemani. In the course of the trial the name of Mr. Olota Rokovunisei, was emerged as the then CEO of the FNPF. Evidence was produced to show that certain acts were done by him in his official capacity. It is not open for you madam assessor and gentlemen assessors to drag Mr. Olota's actions into this case. That is a separate case. This case against Ms. Nemani has to be dealt with separately in the view of evidence produced in this trial. Therefore, do not be prejudiced over any body's actions. The case was brought to court against Ms. Nemani and the prosecution has to prove the case beyond reasonable doubt to your fullest satisfaction that Ms. Nemani, the accused committed the two offences charged.

7. SUMMARY

(i) I remind you once again that the accused need not to prove anything to show her innocence. The prosecution must prove the charge beyond reasonable doubt or to your fullest satisfaction over the guilt of the accused. If you have any reasonable doubt on the case of prosecution, you have to find the accused 'NOT GUILTY' to both charges.

(ii) Finally, I recall the instruction I gave you in my opening address. I hope you approached this case with an open mind. The accused is presumed to be innocent until proven guilty by a court of law. Thus, if you are satisfied beyond reasonable doubt or for sure that the prosecution has proved its case, you must find the accused guilty to both charges. If you are not sure of the guilt of the accused after having analyzed the evidence of the prosecution, you must find her 'NOT GUILTY' to both charges. If you think the accused is guilty for one count and not guilty to the other count, you are still free to do so. Charges are totally independent from each other.

(iii) Your possible opinions in this instance are 'GUILTY or 'NOT GUILTY' to the charge of "Extortion by Public Officer" and "Abuse of Office".

(iv) You may now retire to deliberate your opinions. When you are ready with the opinions, I will reconvene the court and ask your individual opinion. You are at liberty to peruse any of the documents tendered to court as prosecution exhibits when deliberating the issues.

(v) Any re-directions or additions to what I said in my summing up Mr. Aslam?

Janaka Bandara
Judge
17.09.2013

At Suva
Office of the Fiji Independent Commission Against Corruption for State