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Fiji Independent Commission Against Corruption v Vuetaki [2010] FJMC 142; Criminal Case 1862 of 2008 (23 November 2010)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No: 1862 of 2008 and 1217 of 2010

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

AND

SIALENI VUETAKI
1st RESPONDENT

AND

ALIPATE NAIOROSUI
2nd RESPONDENT

For FICAC: Mr. Vincent Perera
For 1St Respondent: Mr. Sharma P.
For 2nd Respondent: Mr. Vakaloloma

RULING

1. In Criminal Case No: 1862 of 2008, the first respondent was charged for one count of Abuse of Office and the case partially heard before former Magistrate Rokotinaviti. After the changes to Fiji Judicial system, on the application of the prosecution on 03rd July 2009, former Chief Magistrate had ruled trial de novo and case was set for fresh hearing on 23rd September 2009.
   
2. After few adjournments, on 17th March 2010, this case again set for hearing for three consecutive dates, namely 27th, 28th and 29th September 2010.
   
3. On 02nd August 2010, counsel for the prosecution had made an application in Criminal Case No: 1217 of 2010 where the second respondent is the accused, to transfer that case to Court No: 2 as the prosecution is moving to consolidate the case with Criminal Case No: 1862 of 2008.
   
4. On the directions of Chief Magistrate CF 1217 of 2010 was transferred to Court No: 2 to be called together with CF. 1862 of 2008.
   
5. Prosecution applied for joint trial by consolidating the charges against the first and the second respondents. Counsel for the first respondent did not object for the consolidation. Counsel for the second respondent filed his objections and the prosecution filed their response.
   
6. First and second respondents are charged with one count each.
   
7. Count against the 1st Respondent in CF 1862 of 2008
   

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

Particulars of Offence

SIALENI VUETAKI between the 7th day of December 2006 and the 13th day of December 2006, at Suva in the Central Division being a person employed in the public service namely as Chairman of the Fiji Ports Corporation Limited, in the course of or in relation to his public office and in abuse of that office, did an arbitrary act in that he approved the payment of $177,000.00 to Herbert Hazelman the Chief Executive Officer of Fiji Ports Corporation Limited, without the authority of the Fiji Ports Corporation Limited Board and or the Higher Salaries Commission, in prejudice to the rights of the said Fiji Ports Corporation Limited.

8. Count against the second respondent in CF 1217 of 2010
   

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

Particulars of Offence

ALIPATE NAIOROSUI between the 7th day of December 2006 and the 13th day of December 2006, at Suva in the Central Division being a person employed in the public service namely as Deputy Chairman of the Fiji Ports Corporation Limited, in the course of or in relation to his public office and in abuse of that office, did or directed to be done an arbitrary act namely approved and effected a payment of $177,000.00 as an ex-gratia payment in lieu of early retirement to Herbert Hazelman who was employed as the Chief Executive Officer of Fiji Ports Corporation Limited, without the authority of the Fiji Ports Corporation Limited Board and/or the Higher Salaries Commission, which is an act prejudicial to the rights of the said Fiji Ports Corporation Limited.

Grounds for Consolidation

9. According to the prosecution both respondents are charged with the offence of “Abuse of Office” in respect of the same incident and both respondents are charged for committing the same offence in the course of the same transaction. Further, same set of witnesses will testify for the prosecution.
   

Objections for Consolidation

10. According to the counsel for the second respondent, the second respondent had given evidence against the first respondent in CF 1862 of 2008 and thereby the second respondent had been a part of the prosecution case as a crown witness.
    
11. Further, counsel mentioned that the second respondent so far had not received a copy of the trial record of 1862 of 2008 and he could not recall most of what transpired during the trial.
    
12. Another ground is that since the second respondent was a crown witness to CF 1862 of 2008, the same evidence and caution interview recorded in 2008 will be used against the second respondent and therefore second respondent would be severely embarrassed if he was to be tried together with the first respondent.
    
13. Counsel further state that in order to prove the innocence of the second respondent, counsel will have to examine the first respondent at the second respondent’s trial to verify that the first and second respondents did not conspire. In the event in a joint trial if the co-accused choose not to give evidence the second respondent’s counsel will not be able to examine him and this will be highly prejudicial to the second respondent.
    

Law

14. Legal principles applicable to consolidation of charges had been very recently discussed by Goundar J in FICAC v. Laisenia Qarase and Sitiveni Weleilakeba [HAM068 of 2009] on 03rd September 2010.
    
15. In the above-mentioned ruling Goundar J held as follows.
    

”Joinder of two or more accused in one information is governed by sec. 60 of the Criminal Procedure Decree which came in to effect on 1 February 2010. Section 60 states:

60. The following persons may be joined in one charge or information and may be tried together —

(a) persons accused of the same offence committed in the course of the same transaction;

(b) persons accused of an offence and persons accused of –

(i) aiding or abetting the commission of the offence; or

(ii) attempting to commit the offence;

(c) persons accused of different offences provided that all offences are founded on the same facts, or form or are part of a series of offences of the same or a similar character; and

(d) persons accused of different offences committed in the course of the same transaction.

The predecessor of section 60 was section 121 of the Criminal Procedure Code. There has not been a change in law on joint trial. Section 60 mirrors the old law.

The common law also recognizes the principles of joint trial. A summary of the common law principles of joint trial is found in Lake [1977] 64 Cr. App. R. 172, 175:

”It has been accepted for a very long time in English practice that there are powerful public reasons why joint offences should be tried jointly. The importance is not mere one of saving time and money. It is also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise. Accordingly it is accepted practice, from which we certainly should not depart in this court today, that a joint offence can be properly be tried jointly, even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that. Of course the practice requires that the trial judge in such a case should warn the jury that the evidence is not admissible,... However the question of severance is primarily one for the trial judge. The discretion was properly exercised in the present instance, and notwithstanding the fact that there must have been some risk of prejudice the decision of the judge, we think, was right. Of course if a case is strong enough, if the prejudice is dangerous enough, if the circumstances are particular enough, all rules of this kind must go in the interest of justice, but this is not the sort of case in which the ordinary rule of practice in our judgment will operate unduly to the detriment of the accused and therefore it is a case in which we should apply the ordinary rule.”

In State v. Prasad & Ors HAM127 of 2008, Shameem J formulated two-limb test for a joint trial. The test is:

Whether there is sufficient evidence and factual nexus in relation to each accused; and

Whether there is prejudice to the accused by a joint trial.”

Evidential and Factual Nexus

16. Both respondents are charged with an offence of “Abuse of Office”. According to the particulars of the offence, the alleged offence had committed in the same incident in the course of the same transaction. Further the same set of witnesses will testify in the case.
    
17. Therefore, I am satisfied about the evidential and factual nexus in the charges against the respondents.
    

Prejudice

18. Will the second respondent be prejudiced by a joint trial?
    
19. One of the main arguments forwarded by the second respondent is that the second respondent once called to the witness stand by the prosecution as a crown witness to give evidence against the first respondent. Non availability of the court record where the second respondent had been a crown witness is considered prejudicial by the counsel.
    
20. As I have mentioned elsewhere in my ruling the trial where the second respondent gave evidence had now been declared trial de novo. Therefore, it is clear that anything said in that previous trial could not be used against any of the respondents. Based on that ground I dismiss the argument.
    
21. Second respondent in his written objection advanced further argument on the basis that both respondents would be jointly charged for conspiring to commit the crime. However, as indicated by the prosecutor, both respondents are separately charged and charges against the second accused not on conspiracy. Therefore I decide that this argument is without merit.
    

Embarrassment

22. In Rashika Devi Singh v. State [2009] FJHC 131; HAM016.2009 (29th June 2009), Goundar J dealing with the issue of embarrassment held as follows:
    

[6] I note that both accused persons are charged jointly with the same offence in count one only. In counts two, three, four and eight the first accused is charged with different offences but based on the same cheque that formed the basis of allegation in count one. The joinder of the two accused persons in one information is permitted as far as counts one, two, three, four and eight are concerned. However, the same could not be said about counts five, six and seven. In these counts, only the first accused is charged with different offences and they are not based on the same transactions or facts as per count one in which the second accused is charged. In this regard, the joinder of the two accused persons is not permitted by s.121 of the Criminal Procedure Code. Thus, the second accused is likely to be embarrassed in her defence to be jointly tried with the first accused when there is no nexus between her charge and counts five, six and seven.

23. In the present incident as mentioned by the counsel for FICAC, what is in existence is not merely a nexus between the two charges but the offences against both accused are the same. Hence, I decide that join trial would not cause any embarrassment to the second respondent.
    
24. Application for consolidation of charges is allowed.
    

On this Tuesday the 23rd day of November 2010

Kaweendra Nanayakkara
Resident Magistrate