IN THE HIGH COURT OF FIJI AT LABASA
In the matter of an appeal under section 246(1) of the Criminal Procedure Act 2009.
FARUN ALI
Appellant
CASE NO: HAA. 03 of 2019
[MC Labasa, Crim. Case No. 470 of 2016]	Vs.

STATE
Respondent

Counsel		:	Mr.  A. Kohli for the Appellant
				Ms. A. Vavadakua for the Respondent
Hearing on		: 	25 June 2019
Judgment on		:	12 July 2019

JUDGMENT

Introduction
1.	The appellant was charged before the Magistrate Court at Labasa for one count of receiving a bribe contrary to section 135(1) of the Crimes Decree (now Crimes Act). After trial, on 19/12/2018, the appellant was convicted by the Learned Magistrate as charged and on 09/04/19 was sentenced to an imprisonment term of 09 months.

2.	Being aggrieved, the appellant had taken steps to file a timely appeal against his conviction on the following grounds of appeal;
1.	THAT the Learned Trial magistrate erred in law and in fact in failing to take into account that the charge was defective in that the particulars of offence did not disclose any offence.
2.	THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding “that the fact that the accused had sustained a belief that if he received a benefit he could lose the files indicated to the Court that he had sustained a belief from the victim that he had authority to do so, which he did not have.”
3.	THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding “that the prosecution has proven the essential element that the accused presented himself thereby inducing the complainant that he was able to derive an advantage for the complainant if a benefit was given to him” in the absence of evidence to support the same.
4.	THAT the Learned Trial Magistrate erred in law and in fact in failing to evaluate evidence as enunciated in State v Kamal 2014 FJHC 8 HAC 221.2011.
5.	THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding that the inconsistencies in the evidence of the complainant were not fatal.
6.	THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding that there were inconsistencies in the evidence of the accused which were incredible and untruthful in the absence of evidence to support the same.
7.	THAT the Appellant reserves the right to file further grounds of appeal upon receipt of the court records.

3.	The charge the appellant was convicted of reads thus;
Statement of Offence
BRIBERY: Contrary to section 135 (1) (a) and (b) (ii) of the Crimes Decree 2009.
Particulars of Offence
FARUN ALI between the 20th February, 2015 and the 24th February 2015, at Labasa in the Northern Division being employed as a member of the Fiji Police Force, without lawful authority and without reasonable excuse, asked for a benefit of $500.00 from Prem Chand, with the intention of inducing in Prem Chamd the belief that by giving Farun Ali the said $500.00, Farun Ali would exercise his powers as a Police Officer in Farun Ali’s favour.

The factual matrix
4.	The prosecution’s case was that the appellant being a police officer solicited $500 from the complainant (PW1) on 20/02/15 saying that the appellant will ‘lose’ or do away with a file in relation to a pending case against the complainant. The prosecution had called two witnesses including the complainant. 

5.	According to PW1, on 20/02/15, the appellant called him on his mobile and informed him to meet the appellant near the Civic Centre. PW1 had not seen the appellant before. When PW1 went near the Civic Centre, he first met PW2 who was his cousin and was also a police officer. PW1 asked PW2 for the appellant and PW2 then pointed at the appellant who was coming towards them. Thereafter PW2 left. The appellant then came to PW1 and showed him a file. The appellant then told PW1 that the allegation against PW1 is that he had planted marijuana.  PW1 had been arrested and charged on that allegation prior to that. The appellant asked for $500 to do away with that report. PW1 told the appellant that he does not have money and thereafter they parted ways. PW1 saw the police badge in appellant’s front pocket. 

6.	According to PW2, he met PW1 on 20/02/15. PW1 was waiting for the appellant. He had worked with the appellant for 5 years. He saw the appellant coming with something which looked like a police file. He saw the appellant and PW1 talking but did not hear them as he left with the other police officer who was with him.

7.	According to the evidence given by the appellant, PW1 came to the police station on 20/02/15 to report in relation to bail, but without the bail conditions. He told PW1 to bring the bail conditions and he also took PW1’s phone number. He called PW1 later in the day because PW1 did not turn up. Thereafter he saw PW1 near the Civic Centre and he went to PW1. PW1 told him “what you do to me” when he asked PW1 about not bringing the ‘bail paper’. Then he escorted PW1 to the police station. The appellant had denied soliciting $500 from PW1.

8.	The second defence witness (DW2) was also a police officer who had said that the police docket in relation to the case against PW1 was with him at the material time and the appellant did not take the file from him. According to DW2, he had a separate locker to keep his files.

Discussion
Ground 0ne
9.	The first ground of appeal relates to a defect in the charge. However, during the hearing the counsel for the appellant quite correctly conceded that no prejudice was caused to the appellant due to the said defect.

10.	The defect referred to in this ground is that the accused’s name is printed at the end of the particulars of offence where PW1’s name is supposed to be printed.

11.	In terms of section 279 of the Criminal Procedure Act the High Court cannot entertain a ground of appeal in relation to a defect in a charge of substance or form or for any variance between the charge and the evidence where the appellant was represented by a lawyer before the magistrate court unless that objection was raised before the Learned Magistrate and the Learned Magistrate had refused adjourn the hearing on that account. (See Prasad v State [2018] FJHC 617; HAA15.2018 (20 July 2018))

12.	Section 279 of the Criminal Procedure Act reads thus;
No appeal on point of form or matter of variance
	(1) Subject to sub-section (2), no finding, sentence or order passed by a Magistrates Court of competent jurisdiction shall be reserved or altered on appeal or revision on account of any objection to any information, complaint, summons or warrant for any alleged defect of substance or form or for any variance between such information, complaint, summons or warrant and the evidence, unless it is found that — 
(a) such objection was raised before the Magistrates Court whose decision is appealed from; and 
(b) the Magistrates Court refused to adjourn the hearing of the case to a future day notwithstanding that it was shown to the Magistrates Court that by such variance the appellant had been deceived or misled. 

(2) If the appellant was not represented by a lawyer at the hearing before the Magistrates Court, the High Court may allow any such objection to be raised.

13.	Therefore, ground one should fail.

Ground Two
14.	The second ground of appeal relates to the fault element of the offence the appellant was charged with. Therefore, I would consider it appropriate to examine the elements of the said offence.

15.	The appellant was charged under section 135 of the Crimes Act. The said section 135 reads thus;

Receiving a bribe
135 (1)	A public official commits an indictable offence (which is triable summarily) if —
(a) the public official without lawful authority or reasonable excuse 
(i) 	asks for a benefit for himself, herself or another person; or
(ii)	receives or obtains a benefit for himself, herself or another person; or
(iii) 	agrees to receive or obtain a benefit for himself, herself or another person; 
and

(b) the public official does so with the intention —
(i) 	that the exercise of the official’s duties as a public official will be influenced; or
(ii) 	of inducing, fostering or sustaining a belief that the exercise of the official’s duties as a public official will be influenced.

16.	Given the particulars of offence and the circumstances in this case, the elements the prosecution should prove in the instant case can be identified as follows;
a)	the accused;
b)	being a public official;
c)	without lawful authority or reasonable excuse;
d)	asked for a benefit for himself; and
e)	the accused did so with the intention of inducing, fostering or sustaining a belief that the exercise of the official’s duties as a public official will be influenced.

17.	The Learned Magistrate has correctly outlined the elements that need to be proven in the instant case at paragraph 4.1 of the impugned judgment (page 195).

18.	The third element above (‘without lawful authority or reasonable excuse‘) is a negative averment. Section 124 of the Criminal Procedure Act states thus;

Division 4 — Negative Averments
124.	(1) 	Any exception, exemption, proviso, excuse or qualification —
(a) whether it does or does not appear in the same section as the description of the offence in the Act or Decree or Promulgation creating the offence; and
(b) whether or not it is specified or negatived in the charge or complaint 
is to be proved by the accused person on a balance of probabilities.

(2) 	No proof in relation to any relevant exception, exemption, proviso, excuse or qualification applying under any Act or Decree or Promulgation to any offence shall be required from the prosecution.

19.	Therefore, the prosecution is not required to prove the said third element alluded to above and the burden of proving that he/she acted with lawful authority or there was a reasonable excuse is on the accused who is charged with the offence of receiving a bribe. If an accused is able to establish him/ her having a lawful authority or a reasonable excuse to ask/ receive or agree to receive the benefit in question as the case may be, such proof would in fact negate the mental element, thus absolving the accused of the offence under section 135 of the Crimes Act.

20.	Under the second ground the counsel for the appellant argues that the Learned Magistrate misread the aforementioned fifth element by concluding that the relevant belief should be sustained by the accused whereas it should be the victim who should sustain that belief.

21.	According to the appellant this error is evinced in paragraph 7.13 of the impugned judgment. At paragraph 7.13, the Learned Magistrate had stated thus;
“The court finds therefore that the fact that the accuse[d] sustained a belief that if he received a benefit he could ‘lose’ the files indicates to this court that he had sustained a belief from the victim that he had the authority to do so, which he did not have.”

22.	In view of what is stated in the aforementioned paragraph it is clear that the Learned Magistrate has in fact misconstrued the element in question. What is required to be proved in relation to the relevant element is that the accused had the intention to induce/foster/sustain a belief in the complainant (in the context of this case) that the exercise of the accused’s official duties as a public official will be influenced. Nevertheless, this element being the fault or the mental element applicable to the accused does not require it to be proved that the victim in fact sustained such belief. Evidence of the victim sustaining such belief, if available, would be relevant and admissible in relation to the aforementioned fault element.

23.	Therefore, the second ground of appeal has merit.

Ground Three
24.	On the third ground of appeal, the appellant asserts that the Learned Magistrate erred by concluding “that the prosecution has proven the essential element that the accused presented himself thereby inducing the complainant that he was able to derive an advantage for the complainant if a benefit was given to him” in the absence of evidence to support that conclusion. The appellant relies on paragraph 7.10 of the impugned judgment in relation to the third ground.

25.	At paragraph 7.10, the Learned Magistrate had stated thus;
“The court when weighing out the evidence, finds that the crucial element that prosecution [has] proven that the Accuse[d] presented himself thereby sustaining a belief that he was able to derive [an] advantage for the complainant if a benefit was given to him.”

26.	There is a marked difference between what the appellant has claimed in the third ground of appeal as the conclusion reached by the Learned Magistrate in terms of paragraph 7.10 and what is in fact stated at paragraph 7.10. On the other hand, the position taken by the appellant in this ground appears to be that the Learned Magistrate did construe the fault element properly but there was no evidence to establish that element. This contradicts the position asserted by the appellant in the second ground of appeal.

27.	I hold that the third ground of appeal is misconceived.

Ground Four
28.	On the fourth ground of appeal the appellant claims that the Learned Magistrate erred by failing to evaluate the evidence ‘as enunciated’ in the case of State v Kamal [2014] FJHC 8; HAC220.2011 (24 January 2014).
29.	The aforementioned citation relates to the summing up delivered in the relevant case by the High Court. In the instant case however, the Learned Magistrate in her judgment has in fact referred to the aforementioned case and to the tests that were outlined in the said summing up on assessing evidence suggesting that the Learned Magistrate was mindful of the relevant tests when the evidence was evaluated.

30.	In Kamal (supra) the Learned Judge directed the assessors as follows;
34.	In assessing evidence of witnesses you need to consider a series of tests. They are for examples:
Test of means of opportunity: That is whether the witness had opportunity to see, hear or feel what he/she is talking of in his/her evidence. Or whether the witness is talking of something out of pace mechanically created just out of a case against the other party.

Probability and Improbability: That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his/her evidence is improbable given the circumstances of the case.

Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay.

Spontaneity: This is another important factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that he/she is talking of, whether he/she has shown spontaneous response as a sensible human being and acted accordingly as demanded by the occasion.
Consistency: That is whether a witness telling a story on the same lines without variations and contradictions. You must see whether a witness is shown to have given a different version elsewhere. If so, what the witness has told Court contradicts with his/her earlier version.

31.	In the case of Ajendra Kumar Singh vs. R (1980) 26 FLR 1 the Court of Appeal said at page 9, thus;
"...It is also set out in [Director of Public Prosecutions- v- Ping Lin [1975] 3 All ER 175] as has frequently been said that an appellate Court should not disturb a judge's findings unless it is satisfied that a completely wrong assessment of the evidence has been made, or the correct principles have not been applied".

32.	Assessment of evidence which includes the decision to believe or not to believe witnesses is the most difficult but the primary task a judge or a magistrate is required to perform in deciding the guilt or otherwise of an accused in a criminal trial. Thus, it is important for the judgment to reflect how the evidence was assessed. Evidence is assessed primarily by either applying the rules applicable to evidence or applying the inner convictions or common sense of the trial judge or magistrate to the evidence presented in court.

33.	The tests outlined in Kamal (supra) simply provide guidance for a trier of facts to apply the inner convictions to the evidence. As the Learned Judge in the said case has informed the assessors, the list of tests outlined above are only examples how evidence could be assessed. All the tests outlined in that summing up may not be relevant in every case and therefore, it is not necessary for a trier of fact to touch on all those tests in every case. For example if the relevant complaint is made soon after the incident in question there is no necessity for the trier of fact to discuss belatedness. In the instant case, PW1’s evidence was that the appellant solicited a bribe from him when they met each other one on one. Accordingly, PW1’s evidence was based on what he perceived from his own senses while being right in front of the appellant. Therefore, there is no question of his ability or the opportunity to perceive what he had stated in his evidence and it is not required for the magistrate to include any discussion regarding the test on the means of opportunity or refer to that test in this case.

34.	In my view, in an appeal against conviction by the Magistrate Court if an appellant wishes to challenge the assessment of the evidence by the magistrate, it is necessary to establish before the appellate court that the assessment by the Learned Magistrate is completely wrong or that the Learned Magistrate either failed to apply or misapplied a legal principle relating to evidence.

35.	In the written submissions filed on behalf of the appellant in relation to the fourth ground of appeal, submissions have been made on all the aforementioned tests under separate subheadings and on two additional points. I also note that in the closing submissions filed on behalf of the appellant before the Learned Magistrate, the appellant had not touched on three of those tests. They are; means of opportunity, belatedness and spontaneity.

36.	What is apparent from the submissions on the fourth ground of appeal is that this ground has been raised simply to have the evidence reassessed by this court based on the same arguments formulated by the appellant before the Learned Magistrate and on five points not so canvassed. Nevertheless, this ground does not raise a valid objection in relation to the assessment of the evidence by the Learned Magistrate.

37.	The argument reflected in the fourth ground of appeal, that is, the failure of a magistrate to follow directions made in a summing up to the assessors in a High Court case would amount to an error of law (or fact) is grossly misconceived.

38.	Fourth ground should fail.

Ground Five
39.	In the fifth ground of appeal, the appellant asserts that the Learned Magistrate erred by reaching the conclusion that the inconsistencies in the complainants evidence were not fatal.

40.	The inconsistencies the appellant relies on to establish the claim under this ground relates to the time PW1 met the appellant, the time and the place he received the call from the appellant before the alleged act of the appellant soliciting the bribe and the number of calls he received from the appellant after that meeting.

41.	It is evident from paragraph 7.7 of the impugned judgment that the Learned Magistrate has correctly identified the relevant inconsistencies and paragraph 7.8 indicates that the Learned Magistrate has identified reasonable explanations for the said inconsistencies before arriving at the conclusion that they are not fatal to the prosecution case. In paragraph 7.8 the Learned Magistrate had stated thus;

“When weighing out these evidences, given the span in time from when the incident happened, there is a high likelihood of the complainant not being able to recall specific dates nor the sequence of events. The court finds that these inconsistencies are not fatal to his evidences and are admissible as the complainant had explained and clarified his whereabouts on 20 February 2015 as well as why the phone call records were inconsistent. The court finds these explanation probable and will finds that the evidences were not fatal to the evidence of prosecution. (sic)”

42.	It is manifestly clear from the above paragraph that it was open to the Learned Magistrate to arrive at the conclusion that the inconsistencies surfaced in the evidence presented were not fatal to the prosecution case. Moreover, it is pertinent to note that the fact that the appellant called PW1 on the day in question and the fact that they met each other that day are not disputed in this case and the appellant has admitted these facts in his evidence. The aforementioned inconsistencies the appellant has highlighted in relation to this ground of appeal should be deemed irrelevant and immaterial in light of these admissions alone.

43.	Therefore, fifth ground should fail.
Ground Six
44.	In the sixth ground of appeal the appellant asserts that the Learned Magistrate inadvertently held that there were inconsistencies in the evidence given by the appellant when in fact there were no inconsistencies in his evidence.

45.	The Learned Magistrate has assessed the evidence given by the accused in paragraph 7.11 of the impugned judgment where it is stated thus;
“Accuse denies that he had uttered the statements that he would ‘remove the files if he was paid $500’. The court when analyzing the evidence of Accuse finds there are inconsistencies and also considers them incredible or untruthful. He admitted calling the victim and then admitted ‘by chance’ he met up with complainant. The court finds that this evidence is not truthful and no weight is given to its credibility. [sic]”

46.	I do note that, in the said paragraph, the Learned Magistrate has overlooked to outline the inconsistencies she was relying on. However, in my reading, it was the evidence given by the appellant that the Learned Magistrate finds incredible and untruthful but not the purported inconsistencies.

47.	The Learned Magistrate specifically stated that she did not believe the appellant’s evidence where the appellant had said that he met the complainant ‘by chance’.

48.	When assessing the evidence given by an accused which in all probabilities would be inconsistent with the evidence given by the complainant and other prosecution witnesses and if the trier of fact had found that evidence presented by the prosecution to be credible and reliable (i.e., the accused’s evidence is inconsistent with evidence the trier of fact believes to be true), the trier of fact is entitled to disbelieve the accused based on the fact that the said trier of fact believes the prosecution evidence to be true, even though there are no inconsistencies per se in the evidence given by the accused.

49.	In the instant case, the appellant’s version has been that he obtained the complainant’s mobile number when the complainant came to sign at the police station in relation to the complainant’s bail conditions, appellant sent the complainant back saying that the complainant should bring his ‘bail papers’, he made two phone calls to the complainant to remind the complainant to bring the ‘bail papers’ and then he saw the complainant at the car park and approached the complainant to ask the complainant again, regarding ‘bail papers’.

50.	According to the appellant, he had joined the police force in 2005. There is no reason for the appellant not to know that signing at the relevant police station as per bail conditions is a matter for the person who is on bail and it is not part of the duty of a police officer to keep on reminding persons on bail to adhere to such reporting conditions. Therefore, the appellant’s version is highly improbable and unreliable. The Learned Magistrate before turning to examine the appellant’s evidence has reached the conclusion at paragraph 7.9 of her judgment that the evidence presented by the prosecution is reliable. All in all, it is evident that the Learned Magistrate’s conclusion that the accused’s evidence is incredible and untruthful is not perverse and it was open for her to reach that conclusion.

51.	Accordingly, I find that the sixth ground of appeal is devoid of merit.

Whether substantial miscarriage has actually occurred
52.	Given the foregoing discussion in relation to grounds four and five, it is clear that the appellant has failed to demonstrate that the Learned Magistrate’s decision to accept the evidence of the complainant as credible and reliable is flawed and there is no reason for this court to disturb the said finding.

53.	Upon perusing the impugned judgment and the evidence as recorded in the relevant court record, there is credible and reliable evidence that the appellant approached the complainant on 20/02/15 at the Civic Centre car park with a file in his hand and asked the complainant to pay him $500 to do away with the file in relation to a pending case against the complainant. The appellant also told the complainant that the allegation against the complainant in the case was in relation to planting marijuana. The complainant had seen the appellant having a police badge in the front pocket. Therefore, it is clear that at the time the appellant asked for $500, the appellant knew about the complainant’s pending case and the complainant knew that the appellant is a police officer.

54.	Given the above evidence, it is established that the appellant being a public official asked for a benefit from the complainant on 20/02/15. Further, given the circumstances under which the two of them met and what the complainant was told by the appellant, it was clear that the appellant had the intention of inducing the complainant to believe that if the complainant pays $500 to the appellant, the exercise of the appellant’s duties as a public official will be influenced so that the appellant will displace or destroy the police file relevant to the complainant’s pending case.

55.	In my view, it is immaterial whether or not the appellant had with him at that time, the police docket relevant to the complainant’s pending case. The fact that the appellant had a police file in his hand when he met the complainant outside the police station itself is capable of making the complainant believe that the appellant had access to files pertaining to pending cases and the appellant is in a position to displace those files.

56.	Therefore, the evidence led before the Learned Magistrate in the instant case establishes the offence the appellant is charged with beyond reasonable doubt.

57.	In the circumstances, I find that no substantial miscarriage has actually occurred in this case due to the fact that the Learned Magistrate appear to have misread the fault element of the offence as I have elaborated in the discussion pertaining to the second ground of appeal.

58.	I would therefore dismiss this appeal against conviction in terms of section 256(2)(f) of the Criminal Procedure Act and would affirm the conviction.

59.	There is no appeal against the sentence. However, I consider it appropriate to briefly express my view regarding the sentence of 09 months imprisonment imposed in this case.

60.	The offence of receiving a bribe under section 135 of the Crimes Act carries a maximum penalty of 10 years imprisonment. Given the nature of the offending in this case where a police officer who is tasked to uphold the rule of law had asked for a bribe to interfere with a case pending before court, in my view, the 09 month imprisonment term imposed by the Learned Magistrate is manifestly lenient.

61.	The appellant was sentenced on 09/04/19 by the Learned Magistrate and then was granted bail pending appeal on 26/04/19. He had served a period of 17 days. The appellant should serve the remaining period of his sentence of 09 months imprisonment.

Orders of the Court;
i.)	Appeal is dismissed;
ii.)	The conviction entered in Labasa Magistrate Court Criminal Case No. 470 of 2016 is affirmed; 
iii.)	The appellant should serve the remaining period of his sentence imposed on 09/04/19 in the aforementioned case and accordingly, should be taken into custody forthwith and conveyed to the relevant prison.

					Vinsent S. Perera
					JUDGE

Solicitors;
Kohli & Singh, Barristers and Solicitors, Labasa for the Appellant
Office of the Director of Public Prosecutions for the State