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Fiji Independent Commission Against Corruption [FICAC] v Mohammed - Judgment [2015] FJHC 457; HAC349.2013 (22 June 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 349 of 2013

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION [FICAC]

V

FEROZ JAN MOHAMMED
ILIESA TURAGACATI
NAVITALAI SEREIVALU TAMANITOAKULA
AISEA LIWAIONO

Counsel: Mr. I. Lloyd, QC, SC with Dr. T. Hickey
and Ms. L. Tabuakuro for the first accused.
Ms. N. Tikoisuva for the second accused.
Mr. F. Vosarogo for the third accused.
Ms. T. Leweni for the fourth accused.
Mr. R. Aslam with Ms.T.Waqabaca and
Ms. L. Mausio for FICAC.

Dates of hearing: 4,5,6,7,8,11,12,13,14,15, 18, 19, 20,
21, 27, 28, 29 May 2015
1, 2, 3, 4, 5, 8, 9, 10, 15, 16 &17 June2015

Date of Judgment: 22 June, 2015

JUDGMENT

1. Feroz Jan Mohammed, IliesaTuragacati, NavitalaiTamanitoakula and AiseaLiwaiono, you have been tried in this court on the charges set out in the appendix attached hereto.

2. The four assessors have returned with unanimous opinions of guilty on every charge.

3. I have directed myself on my own Summing Up and would make the following observations.

4. The case against the first and second accused for giving bribes and receiving bribes respectively was overwhelming. Both the accused conceded that the money was in fact given and received, a fact that thereby raises the presumption in s.151 of the Crimes Decree. It becomes incumbent on the defence to prove that there was a "reasonable excuse" for the transfer of funds (on the balance of probabilities) and it was then for the prosecution to disprove it.

5. Both the first and second accused tried to establish a defence of reasonable excuse by asserting that the monies were in fact payments due to the second accused for a fish business. The second accused gave detailed evidence about his fish business and called a witness who claimed to be the ultimate purchaser of his fish . The difficulty with this defence was that the two unsophisticated and uneducated villagers who were said to be the middle men in the business had never heard of the second accused and knew nothing about the sale and purchase of fish.

6. The reasonable excuse defence was further discredited when the second accused gave evidence on this issue, evidence that was implausible, contradictory and unconvincing. It was quite clear from his demeanour that the second accused did not believe his own evidence – he did not look up once and was clearly embarrassed to be giving such evidence

7. Nor did I believe the evidence of his witness, the businessman from Ba who said he was the person buying the fish from the two villagers. It was quite apparent that his evidence was "coached"; he could not wait to tell me about "royalty money" and "fish heads", when it was not natural for him to say those things and when they were much discussed issues in the trial. His close relationship to the first accused also calls his independence into question. I reject his evidence completely.

8 The "reasonable excuse " evidence of these fish dealings did not even satisfy the test of balance of probabilities. In my Summing Up I afforded the first and second accused a favourable direction on the "excuse" by not referring to the presumption and directing the assessors that the prosecution must satisfy them that the defence had not been established. In my view the defence could never be believed- the prosecution disproved it, and I have no hesitation in rejecting it.

9. Mr. Frank Tora, a FICAC financial investigator provided the Court with excellent oral and documentary evidence seeking to prove that the payments of "rewards" coincided with the issuance of unsubstantiated large sums to TFJan; the larger the cheques, the bigger the reward. I believed MrTora and found his flow charts to be immensely helpful in analyzing the complicated interaction between payments and rewards. In contrast I found that the evidence of the defence expert MrGoodyer to be perfunctory, superficial and entirely lacking in independence.

10. I have no hesitation whatsoever in finding that all the elements of both offences alleged in Counts One and Two have been proved beyond reasonable doubt. The defence evidence does nothing to deter me from that finding and as I consequence, I concur with the opinions of the assessors and I find the first accused guilty of Count One and the Second accused guilty of count two. I convict them both on each count accordingly.

11. The third count charges the first accused with obtaining a financial advantage of approximately $3.13m from the DNR. This was the issue that took much of the Court time with the prosecution producing evidence of 14 different payments to the first accused's company and copies of the documents that were sent to the DNR, purportedly to justify and validate each claim. In every one of these 14 claims there were forged documents, invoices that were generated within the first accused's office without justification, claims made on documents that had already been paid out on etc. Very learned counsel for the first accused spent days in trying to justify that the work claimed for had in fact been done and even had he succeeded in making that point, which I don't find that he did, it ignores the glaringly obvious truth that the invoices and statements of claim accompanying those day works claims were in fact bogus. The 14 exhibited claims and payments included 10 which, apart from paying the bogus amount claimed, paid in addition a large unexplained and unclaimed overpayment. The defence claimed these were payments for earlier work done and not claimed for, but there was no evidence of that before the Court. I find that these overpayments were advantages paid to the first accused's company in return for the rewards being paid to the second accused.

12. I again agree with the assessors' opinion of guilty on count 3 and I therefore find the first accused guilty of that count and convict him accordingly.

13. The fourth count charges the second accused with dishonestly causing a loss to DNR by facilitating those 14 payments to the first accused which amounted to approximately $3.12m. The same evidence adduced by the prosecution with respect to the first accused in the third count is equally applicable to this count. The spirited defence on behalf of the second accused sought to stress that there was no evidence before the Court that the second accused's acts in preparing the documents and sending them with a minute to the accounts clerical division for processing was dishonest in terms of the Ghoshdefinition of dishonesty. However the circumstantial evidence adduced would negate this submission. Six of the claims were sent directly to the second accused without the necessary "on site" verification being done by the DNR delegates in Lautoka, and all of the available Interim Payment Certificates were signed by him,as was an accompanying Memo to the clerical staff stating in each instance that he had checked and confirmed that the payments were in order to be paid as authorized by the Engineer. The problem was that the signatures of the engineer in the West (Mr Naidu) and the Director of Roads had been forged and quite obviously the second accused must have been either complicit in those forgeries or if not at least aware that they were forgeries. He added large overpayments to the claims without any explanation . He ignored the stated concerns of the clerical staff about the validity of some of the payments. I have no hesitation in agreeing with the assessors that the second accused is guilty of this charge and I convict him accordingly.

14. The fifth count charges the third accused (Tamanitoakula) with causing a loss of $2.4m to the DNR. He was a senior accountant in the Department whose function was to analyse, check and approve all payment from the Department to the contractors. He approved 10 of the 14 fraudulent claims despite their deficiencies of double claim, fraudulent signatures of compliance and forged or invalid supporting documents. He continued to approve payments even after being alerted to the suspiciousness of the TFJan claims by his accounts staff. In one instance a clerk even raised the suggestion that a claim had been paid before. His counsel submits that there is no evidence of subjective dishonesty on his part, but his actions and inaction in making proper enquiry raised more than sufficient circumstantial evidence of his dishonesty and knowledge. I find that the prosecution have proved his guilt beyond reasonable doubt and there is no evidence before the Court that would deter me from that finding. I agree with the assessors and find him guilty and convict him of the fifth count.

15. The fourth accused (AiseaLiwaiono)faces two counts of causing a risk of loss to the DNR. He was a department engineer stationed in Lautoka and his function was to be "on-site" to physically check that all claims made by TFJan for deliveries and road works had in fact been effected. The prosecution evidence shows that he was called into the office of the first accused on a holiday and asked to sign documents placed before him to say that he had checked and seen that the work had been done. He was interviewed under caution by a FICAC officer and the admissibility of the record of that interview was not challenged, although some of the questions and answers were disputed. The court has seen two segments of the interview, and has no difficulty in finding that the admissions he made therein were not only true and freely given, but the demeanour of the accused was that of a man cornered and struggling to think of excuses for his signing.

16. I find that the prosecution evidence both direct and circumstantial proves beyond reasonable doubt that the fourth accused was acting knowingly and dishonestly in turning a blind eye to the signing of the documents and he must have been aware of the risk that the DNR would be defrauded by $95,773.52 in Count 6 and $315, 417.60 in Count 7. I find him guilty of both counts and I convict him of both accordingly.

17. The eighth and final count charges the first accused with perverting the course of justice. The evidence of MrAzeem Ali, an accomplice, was convincing and unshaken. I believe him when he says that the first accused forced him to make a false declaration about the reasons that TMOs were sending money to Suva. In addition to that, nobody could disbelieve the two ingenuous villagers who had never heard of TMOs nor of the second accused. At the time these TMOs were being sent, suspicions arose in the Post Office about their validity and the creation of the Statutory Declaration was an attempt by the First Accused, not to have it for his office records, but to have it as an explanation to anybody who might be investigating these payments to the second accused. An attempt to so use it did arise when the First Accused gave it to the FICAC officer interviewing him.

18. I have no doubt whatsoever that the first accused was attempting to derail the investigation into allegations of bribery against him by having this false testimony created and attempting to make use of it at his interview.

19. I agree with the assessors and find the first accused guilty of the 8th Count and convict him accordingly.

20. For the avoidance of any doubt, it is the Judgment of this Court that all four accused are found guilty of all the charges they face and they are convicted accordingly.

P.K. Madigan
Judge

At Suva
22 June, 2015