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State v Singh [2012] FJMC 202; Criminal Case 1133.2005 (23 August 2012)

IN THE MAGISTRATE'S COURT OF NAVUA

CRIMINAL CASE: 1133/2005

STATE

VS

ANAND KUMAR SINGH

For Prosecution: - Sgt Lenaitasi
For Accused: - Mr. Diven Prasad

JUDGEMENT

[1] The accused is charged with Official Corruption contrary to Sec 106(b) of the Penal Code. The charge reads as follows

CHARGE:

Statement of Offence [a]

[2] OFFICIAL CORRUPTION – Contrary to Section 106(b) of the PENAL CODE

Particulars of Offence [b]

ANAND KUMAR SINGH f/n SHIU KUMAR SINGH, on the 11 day of June, 2005, at Navua in the Central Division, corruptly offered $20.00 to ACTING CORPRAL number 2015 RAKESH KUMAR, a person employed in the public service namely FIJI POLICE FORCE By not to book him for the Traffic Offence of OVERSPEEDING.

[3] Since the accused pleaded not guilty this was set down for trial. The trial started on 31/01/2006 and the prosecution called three witnesses and closed their case. When this case was called again on 09/03/2006 for the defence case the accused was absent and according to the court record after numerous adjournment the accused was present again only on 10/01/2011. The defence started their case before me on 08/06/2012 and finished it on 23/07/2012.

SUMMARY OF EVIDENCE

[4] At the trial, prosecution called the following witnesses.
PW 1-Cpl 2015 Rakesh; He said on 11/06/2005 he was on duty on Queens highway and doing speed checking. He saw a vehicle travelling around 94kmph and tried to stop that. The vehicle did not stop and they stopped him after giving a chase. The Pw1 showed the reading and was about to book him when the accused threw a $20.00 and asked not to book him. The PW1 refused and arrested the accused and took him to the Navua police station. According to the court record $20.00 note was tendered as EX-1.

[5] In his cross examination by the learned counsel for the defence the PW1 said the accused failed to stop and the ticket was not issued at the scene. The PW1 said the accused took the $20 and threw at him asking not to book.

[6] In his re-examination the PW1 said he did not know the accused.

[7] PW2- PC 1477 Virendra Singh; He said on 11/06/2005 he was on duty with the PW1 and the PW1 clocked a vehicle travelling around 94kmph. The Vehicle did not stop and they managed to stop him at Deuba. The PW1showed the radar reading to the accused and PW2 saw the accused take $20.00 and telling not to book him. Then they arrested the accused and took him to the police station.

[8] In his cross examination the PW2 said the accused was not asked to pay the fine.

[9] PW3- WPC 2746; Interviewing officer. She said the accused was brought to the police station for over speeding, failing to stop and official corruption. She conducted the interview and it was marked as EX-2. (Court record mentioned that the defence counsel had no objection marking that). Also the charge statement was marked as EX-3. Thereafter the prosecution closed their case.

[10] When this case came before me Learned counsel for the defence made an application for no case to answer and I found there is a case against the accused. The defence called two witnesses for their case.

[11] DW1- Anand Kumar; The accused in this case. He said he gave a statement to the police but he did not read the statement. He said the police stopped him for over speeding and told him the fine was $50.00. The accused wanted to pay so he paid $20.00. The police officer took the money and asked him to sit on his van. Then they asked him to come to Navua police station. The accused said he did not throw the money and he was trying to pay the fine. He was not booked before and at that time there were two officers. The accused gave the money thinking it was spot fine. The accused said the police charged him for both.

[12] The prosecution cross examined him lengthy about his claim. The accused said the officers told him that he will book him for two offences and he was not sure about the fine. He said he was about to take $50.00 as fine. The officer did not tell him about the place where he can pay the fine. The police did not ask him to pay but the accused wanted to pay. The accused admitted no one ask him to pay $20.00 and he was not sure why no receipt was issued.

[13] In his re- examination the accused said he took $20.00 from front pocket and took some more from his wallet.

[14] DW2-Rooban; He said the accused used to work for him and he was not dishonest.

[15] Since the defence was calling character evidence of the accused prosecution wanted to call new evidence to rebut that and they were given an adjournment to call new evidence under Sec 180 of the Criminal Procedure decree. That section reads as follows.

"If the accused person adduces evidence introducing new matters which the prosecutor could not have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut those matters."

[16] But later they informed that they were not calling any witnesses therefore both sides were directed to file closing submissions. Only the defence filed their submission. I have carefully gone through that too.

THE LAW

[17] The accused is charged with Official Corruption contrary to Sec 106(b) of the Penal Code. The section reads as follows.

Any person who-

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for any person employed in the public service, or to, upon, or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed,

is guilty of a felony and is liable to imprisonment for seven years.

[18] The elements of the offence of OFFICIAL CORRUPTION are

Any person

1. corruptly gives
   
2. confers or procures
   
3. or promises or offers to give or confer, or to procure or attempt to procure
   
4. upon, or for any person employed in the public service, or to, upon, or for any other person
   
5. any property or benefit of any kind on account of any such act or omission on the part of the person so employed,
   

[19] In Woolmington v DPP (1935) AC 462 it was held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[20] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an on that they are guilty. If you have any reasonable doubt as to whether the accused persons sons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonabubt about the the guilt of the accused."

ANALYSIS OF THE EVIDENCE

[21] The only dispute in this case is on what purpose the accused gave a $20.00 to the PW1. Was it n book him for over speedingeding as the prosecution claimed or as the defence suggested as payment of fine? I believe the answer can be found in the accused caution interview.

[22] According to the court record it was tendered as Ex-2 on 31/06/2006 and defence counsel did not object marking that. I will produce the relevant parts of the interview as follows.

Q19 Were you told that you will be booked for the offence under the traffic regulations you have committed?

Yes

Q20 What did you do then?

I took out my purse to take out my licence and pled with him not to book me. I then told him to just take some money for their lunch and he said for me to give him.

Q21 Did you give the money then?

I was taking out the money and was still holding it in my hand when the officer took it from me and at the same time he arrested me.

Q22 What was the reason of you giving the money for their lunch?

Because I was afraid of being booked by the police

Q28 Why did you give the money to police when you know the traffic offences fine has to be paid to LTA office?

Because I have heard from the people that LTA fine is very high and I know that I cannot afford to pay, that's why I gave the money so they don't book me.

Q29 How much did you gave A/Cpl 2015 Rakesh?

A- I gave $20.00

[23] This interview was tendered through the PW3, officer who conducted the interview. The defence counsel did not object tendering it. From the above questions I find that the accused had admitted that he gave $20 to the PW1 for the purpose of not to book him for over speeding.

[24] Now I will consider the defence evidence. The accused gave evidence on oath before me. At the beginning of his evidence he said he gave a statement to the police but he could not read the English properly and also he did not read that statement. But in his interview notes answering Q1 he said he preferred to interview in English language and asked the PW3 to read it back to him. When they had the chance the defence did not object tendering the interview. Now through his evidence he is trying to control the damage.

[25] The accused in his evidence said he paid $20 as fine. But he admitted in cross examination that the police did not ask him to pay it right there. Then why did the accused give the money to the police.

[26] Again in his evidence he said he thought the fine can be paid on the spot. But according to the interview the accused knew the fine can be paid only to the LTA.

Q27- Where do you have to pay the fine?

A- In LTA office.

[27] The learned defence counsel in his closing submissions pointed out some contradictions in the Prosecution's witnesses. In any case there is bound to be omissions and inconsistencies between the witnesses. No person can remember everything. But I will look in to those submissions too. The PW1 said the accused threw the money at him and PW2 said he gave the money. Even though there is a slight contradiction about that I do not think that would go to the root of this case. Both witnesses said that the accused gave $20.00 to the PW1.

[28] Second ground the defence pointed out was that while PW1 was booking the accused the PW2 was in the vehicle and he could not see what was happening. Therefore his evidence is not credible. I have gone through the case record but can't find any place in the prosecution's evidence that says the PW2 was in the vehicle at that time. It was mentioned only by the accused in his evidence in chief. Therefore I can't accept that ground.

[29] I am not going to consider the DW2's evidence because it is not relevant to this case. He was not present at that time and he evidence was only about character of the accused. It would have been useful in mitigation, not in this case.

[30] The defence also raised a point that the prosecution has failed to produce the speeding ticket in this case. The charge against the accused in this case is that the he offered bribe. Therefore there is no need to mark the ticket.

[31] Also the accused has admitted in his interview that he was speeding when the police stopped him. His defence throughout this case was that he paid $20 as a fine for speeding. Therefore I do not see any valid objection in that.

[32] Now I will consider the Prosecution's evidence. The main witness was the PW1. He said the accused offered him $20 as a bribe and he arrested him. His evidence was corroborated by the PW2 who was present at the scene. Even though they did not give evidence before me I do not have any reason to doubt their evidence.

[33] Based on the above mentioned reasons I find that the prosecution has proved beyond reasonable doubt that the accused offered $20 to the PW1 not to book him.

[34] Therefore I find the accused is guilty of Official Corruption contrary to Sec 106(b) of the Penal Code. I convict the accused accordingly.

28 days to appeal

23/08/2012

H.S.P.Somaratne
Resident Magistrate