IN THE HIGH COURT OF FIJI
AT LABASA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL CASE NO. HAA13 OF 2017
(Magistrates’ Court Case No. 381 of 2011)

BETWEEN:		THE STATE
APPELLANT
AND:			SANTA PRASAD
RESPONDENT

Counsel:	Mr L Fotofili for the Appellant
		Mr A Kohli for the Respondent

Date of Hearing:	16 January 2018
Date of Judgment:	02 March 2018

JUDGMENT

[1]	This is a timely appeal against an acquittal by the State. 

[2]	The respondent was charged with two offences based on the same facts. It was alleged 	that the respondent forged the signature of his sister in a motor vehicle transfer 	document and then used that document at the Land Transport Authority to get a 	tractor transferred under his name. The respondent was charged with forgery and 	uttering a forged document. He pleaded not guilty to the charges. After a defended 	hearing, the respondent was acquitted of the charges by the Magistrates’ Court. 

[3]	The sole ground of appeal against the acquittal is:

		In acquitting the Respondent, the learned Magistrate erred when he 		failed or did not adequately consider whether the evidence of Sarojni 		Wati or PW2 was sufficient on its own to prove the prosecution’s case 		on both counts beyond a reasonable doubt.

[4]	At the trial, the prosecution led evidence from three witnesses. The key witness was 	the complainant, Sarojini Wati. Ms Wati is the sister of the respondent. She claimed 	that the respondent had fraudulently transferred a tractor that was held under a trust of 	their deceased father’s estate. She was a joint trustee of that estate with her brother, 	the respondent. 

[5]	In 2008, there was an application made at the Land Transport Authority (LTA) to 	transfer the ownership of the tractor to the respondent. After the transfer document 	was filed at the LTA office, the respondent became the sole owner of the tractor. The 	transfer document contained the name and signature of Ms Wati giving consent to 	transfer the ownership of the tractor solely to the respondent. Ms Wati’s evidence was 	that she did not sign the transfer document and that her signature was forged. She did 	not know who had forged her signature. The transfer document was led in evidence 	by the police officer who seized the document from the LTA office in Labasa.  

[6]	According to the transfer document, Ms Wati’s consent and signature was witnessed 	by a Commissioner for Oaths, Saleshni Lata Chand. Ms Chand was not called to give 	evidence. The prosecution led evidence that Ms Chand could not be served with a 	subpoena because she was overseas. 

[7]	At the trial, the respondent gave evidence. He denied forging the transfer document. 	He said Ms Wati signed the transfer document before a Commissioner for Oaths. 

[8]	In his judgment, the learned trial magistrate after identifying the essential elements of 	the charged offences, made the following findings:

		58.	In  dealing  with  the offences the court shall first consider whether 			prosecution   has   proven   beyond  reasonable  doubt  that  forgery   			has occurred.  If  the  court  finds  that  there  has  been  forgery  then 			automatically the second count is also met in light of the fact that the 			Defendant  does  not  dispute  that  he  uttered  the  Land Transport 			Authority Application for Transfer of Ownership of Motor Vehicle 			Form at the Land Transport Authority.  Should the court find to the 			contrary then the converse would apply.
	
		59.	This   court  is  satisfied   that   the  Identity1  of   the  accused  and  			the Document (LTA Transfer Form Application) used2 has not been 			disputed  and  those 3 elements has been proven beyond reasonable 			doubt.

		60.	The court however finds in terms of the second4 and third element5 of 			the  offence  for  count 1,  Prosecution  has  not   proven   the  same 			beyond reasonable doubt.
	
		61.	It is the court’s view that is was absolutely crucial to the Prosecution 			case to have called the Commissioner for Oaths as a witness however 			due to the administrative issues which this court shall not delve into 			Prosecution was not able to call the Commissioner for Oaths as a 				witness.	

		62	As an independent witness the evidence of the Commissioner for Oaths 			would have clarified the second and third element of count 1 for the 			court in light of the fact that the complainant and the Defendant (who 			had nothing to prove) were at opposite poles in terms of their version 			of events.

		63.	The Commissioner for Oaths would have settled the issue on whether 			Sarojni Wati signed or whether someone else did. The court can only 			speculate what  the evidence  might or could have been but the law 			requires a higher standard of proof from prosecution as a opposed to 			calculated guesses.

		64.	Prosecution has not been able to meet that standard of proof and as 			such as a result count 1 has not been proven beyond reasonable doubt 			which also means that count 2 is also not proved beyond reasonable 			doubt as a result.

[9]	Counsel for the State submits that the learned magistrate made an error when he 	concluded that the respondent’s guilt could not be established without corroboration 	of Ms Wati’s evidence. This submission is misconceived. The learned magistrate gave 	no impression that he required corroboration of Ms Wati’s evidence. The learned 	magistrate concluded that the respondent was not guilty of the charges because he 	entertained a reasonable doubt as to the guilt after he heard the respondent’s 	evidence. The respondent’s evidence was that Ms Wati had signed the transfer 	document before a Commissioner for Oaths.  The Commissioner for Oaths would 	have cleared the doubt that arose from the respondent’s evidence. Since the 	Commissioner for Oaths was not called to give evidence, the learned magistrate was 	left with a reasonable doubt as to the guilt of the respondent. The learned trial 	magistrate acquitted the respondent of the charges and there is no error shown for this 	Court to disturb that finding of the trial court. 

[10]	For these reasons, the acquittal is affirmed and the State’s appeal is dismissed. 

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the Appellant
Kohli & Singh for the Respondent