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IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA 033 OF 2003
Between:
THE STATE
Appellant
And:
WILFRED LESLIE STEVENS; and
ILIKIMI NAITINI aka GEORGE SPEIGHT
Respondents
Counsel: Mr. P. Ridgeway for State
Mr. M. Raza for Respondents
Hearing: 29 th August 2003
Judgment: 5 th September 2003
J U D G M E N T
The Respondent was acquitted by the Suva Magistrates’
Court of the following charge:
Statement of Offence
MAKING A PAYMENT OUTSIDE FIJI TO OR FOR THE
CREDIT OF A PERSON RESIDENT OUTSIDE FIJI:
Contrary to Section 8 and Paragraph 1(1) Part
II, Fifth Schedule of the Exchange Control
Act, Cap 211.

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Particulars of Offence
WILFRED LESLIE STEVENS did between 7 th and 21 st
March 1995 being then a resident in Fiji make
a payment of $21,000 outside Fiji to or for
the credit of a person resident outside Fiji,
namely the Wattle Group of companies in
Australia, without obtaining the permission of
the Reserve Bank of Fiji.
At the trial in the Magistrates’ Court, there was an
additional count against Ilikimi Naitini, a.k.a. George
Speight which read as follows:
Statement of Offence
MAKING A PAYMENT OUTSIDE FIJI TO OR FOR THE
CREDIT OF A PERSON RESIDENT OUTSIDE FIJI:
Contrary to Section 8 and Paragraph 1(1) Part
II, Fifth Schedule of the Exchange Control
Act, Cap 211 and Section 21 of the Penal Code,
Cap 17.
Particulars of Offence
ILIKIMI NAITINI a.k.a. GEORGE SPEIGHT did
between 7 th and 21 st March 1995 in Fiji aid and
abet the commission by Wilfred Leslie Stephens
of the following offence, namely the making by
the said Wilfred Leslie Stephens, a resident
in Fiji, of a payment in an amount of $21,000
outside Fiji to or for the credit of a person
resident outside Fiji, namely the Wattle Group
of companies in Australia, by arranging for
remission of the said sum to the said group
without obtaining the permission of the
Reserve Bank of Fiji.
To this count, the 2 nd accused pleaded guilty on the
28 th of February 2002. The summary of facts read (to which
the 2 nd accused agreed) as follows:

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“In 1995 a financial organisation based in
Queensland, Australia called the Wattle Group
invited investments from the public not only
from Australia but also from outside
Australia. The Wattle Group was at all
material times resident in Australia but not
resident in Fiji, as was its parent company,
Qantun Investment Pty. Limited. In Fiji, the
Wattle Group was represented by the 2 nd
accused, operating under the business name
Speight and Associates. The 2 nd accused was at
that time resident in Australia. Speight and
Associates was at all material times not
resident in Fiji.
2. In March 1995 the second accused was
physically present in Fiji, while remaining a
resident of Australia.
3. Between 7 th and 21 st March 1995 the second
accused was introduced to the first accused,
who was a Fiji resident. The first accused,
having decided at the request of the second
accused to invest in the Wattle Group and the
scheme of investment having been explained to
him by the second accused, signed an agreement
for investment of moneys by him in the Wattle
Group and gave the second accused the sum of
twenty one thousand Fijian dollars (F$21,000)
for the purpose of making such investment.
4. The second accused, pursuant to his
agreement with the accused, and acting on his
behalf, invested the sum of F$21,000 on behalf
of the first defendant in the Wattle Group in
Australia.
5. No exchange control approval was sought or
given for the above transactions.”
In mitigation the 2 nd accused said that he was
assisting the 1 st accused, and that he did not know that
Reserve Bank approval was needed. He was discharged
without conviction.

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The trial in respect of the 1 st accused proceeded on
the 30 th of April 2003. The former 2 nd accused gave evidence
that on the 7 th of March 1995 he had signed an agreement
with the 1 st accused, which he tendered. That agreement was
that Geoffrey Robert Dexter, trading as “The Wattle Group”
undertook to invest sums of money for the 1 st accused and to
return to him between 5% to 7.5% of the principal amount
every month. The 2 nd accused said that he invested $21,000
of the 1 st accused’s money in the Wattle Group and confirmed
the investment by letter of 21.5.95. That letter was also
tendered. That letter reads:
“Dear Mr. Stephens,
Attached is the latest summary for your
investment funds which were placed with the
Wattle Group via George Speight & Assoc. as your
Funds Manager. As you know your funds were
taken personally by myself out of the country in
the form of $21,000 Fijian dollars and converted
into Australian currency at an exchange rate of
F$1.00 = AUS$0.94 giving a total of $19,530
Australian dollars. This amount was placed as
your investment on 21 March 1995 and has since
earned a total of $1,950 in interest. Refer to
the attached summary for the figures.”
A further letter was tendered, dated 12 th July 1995,
which read inter alia:
“Dear Wilfred,
Attached is the latest summary for your
investment funds which were placed with the
Wattle Group via George Speight & Associates as
your Funds Manager ……………
Yours sincerely,
George Speight.”

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In examination-in-chief the 2 nd accused said that he
had received the funds and invested it to the Wattle Group.
However in cross-examination he said:
“A.
The $21,000 given to me by the accused
remained in Fiji. While an equivalent
amount from my account in Australia was
paid to Wattle Group on the accused’s
behalf ….
A. The above is the truth.
A. The money paid to me by the accused did
not leave Fiji. I paid from my funds
in Australia on an equivalent sum to
Wattle Group on Accused’s behalf.”
PW2, Rigamoto Motufaga a Reserve Bank Officer gave
evidence that a $21,000 overseas transfer needed Reserve
Bank approval and that in this case no such approval had
been sought. In cross-examination he said – “Payment of
$5000 that does not leave Fiji is not payment out of Fiji.”
The Respondent’s caution interview was then tendered.
In that interview the Respondent admitted giving the 2 nd
accused $21,000 to invest with the Wattle Group. The
following questions and answers are relevant:
“Q18: At which place did you give him this
money?
A: At his room at the Travelodge.
Q19: In which currency did you give him the
money?
A: Fijian currency.

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Q20: Where did you get this $21,000 from?
A: The money came from my son’s savings
account NBF, CML Insurance early
withdrawal, some of my savings too.
(with all documents given to CID/SUVA).
Q21: Did you have the information that he
will take this money to Australia for
investment?
A: Yes. As he informed me that he was
going to take it to Australia. I asked
how. He told me that it was none of my
business. I pointed out to him that I
could apply to have it taken to
Australia as I have nothing to hide as
it was not black money. He again
stress to me it was none of my
business.
Q22: Did you know that permission of Reserve
Bank is required before any money is
taken out of Fiji?
A: Yes, that’s why I keep on asking him
question of how he is taking the money
after I have given him the money.
Q23: Was permission taken from Reserve Bank
before this $21,000.00 was taken out of
Fiji? If not why?
A: I don’t know as the money was in his
hands then and the contract sign.”
Later in his interview the Respondent said that the
money was later refunded to him because he was not
satisfied with his investment. The interview was not
disputed and there was no cross-examination about it.
The defence made a submission of no case to answer,
saying that the $21,000 had never left Fiji. The
prosecution replied that the value or equivalent had been

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paid on the Respondent’s behalf in Australia and that this
was sufficient to prove payment out of Fiji.
The Court ruled that the prosecution had to show
payment out of Fiji and that PW1 had said on oath that he
had not paid the $21,000 to the Wattle Group but had spent
it on his own personal use. The learned Magistrate then
ruled:
“In my view, this $21,000 given by the accused
to PW1 was not paid outside of Fiji, by PW1,
as mandated by section 8 of the Exchange
Control Act Chapter 211. In my view, the
section has not been violated by the above
transaction. Even PW2, the Manager of the
Exchange and Control Unit of Reserve Bank
stated in court today, that the above
transaction is not “payment outside of Fiji”
as required by section 8 above-mentioned.”
The learned Magistrate then found that an essential
ingredient of the charge was missing and acquitted the
Respondent.
The appeal
The ground of appeal is as follows:
“That the learned Magistrate erred in holding
that an arrangement whereby a resident
acquires an off-shore credit in exchange for
providing an on-shore credit to a non-resident
does not contravene Section 8 of the Exchange
Control Act.”

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The petition asks that the finding of no case to
answer should be set aside and the case remitted to the
Magistrates’ Court for continuation of trial.
The sole ground of appeal is therefore whether the
transaction described by the first accused was a payment
out of Fiji. Section 8 of the Exchange Control Act
provides:
“Except with the permission of the Minister,
no person resident in Fiji shall, subject to
the provisions of this section make any
payment outside Fiji to or for the credit of
any person resident outside Fiji.”
The facts are not materially in dispute, although it
is apparent that PW1 (the 2 nd accused) introduced the story
of keeping the original $21,000 in Fiji and simply making a
transfer from his account in Australia to the Wattle Group,
for the first time in cross-examination. He made no
mention of it in the two letters he wrote the Respondent,
nor did he tell the court this version of the “transfer” on
his own plea of guilty, nor did he mention it in
examination-in-chief. So surprising is this version of the
facts, that the learned Magistrate might with good cause,
have decided not to accept it, preferring instead the more
consistent account in the letters and examination-in-chief.
There was certainly sufficient evidence as to the
Respondent’s own intention to transfer the money abroad in
his caution interview. Although section 8 of the Exchange
Control Act creates an offence of strict liability, the
caution interview’s contents are helpful to establish that
the Respondent firstly, wanted to transfer the money abroad

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and secondly, knew he was required to obtain Reserve Bank
approval for such transfer.
However, the learned Magistrate did not refer to the
compelling evidence of the interview, or to the letters
tendered by PW1 (the 2 nd accused). Instead he appears to
have accepted the evidence of PW1 in cross-examination and
found (in error) that this was not a transfer abroad
according to the evidence of PW2. He erred in three ways,
in this regard.
Firstly, this was a submission of no case to answer.
It is now trite law that the court must ask itself (in the
magistrates’ court) whether on the uncontradicted evidence
of the prosecution a reasonable tribunal might convict.
This was not the appropriate time to accept one version of
the facts over another. There were two versions of the
facts before the court, and it should have asked itself
whether a conviction was possible on either version.
Clearly the version available on the documents tendered
showed that the funds were taken out of the country by PW1.
Taken with PW1’s plea of guilty to the section 8 offence,
there was a clear prima facie case that the Respondent who
was resident in Fiji and made a payment outside Fiji to the
Wattle Group of Companies through the agency of the 2 nd
accused. That was the first error.
The second error was that he found that a payment can
only be made if the same money handed to an agent in Fiji,
finds its way to the person resident abroad. As State
counsel submitted, such a finding would render section 8 of
the Exchange Control Act meaningless because financial

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business is never done in that way. If a person in Fiji,
pays a bank in Fiji a sum in excess of $5000, and asks for
the money to be credited to the account of a person in
Australia, the bank will tell him or her that the
transaction will be done by telegraphic transfer and that
Reserve Bank approval is required. The scope of the
section is not limited to those persons who physically
smuggle money out of the country by stuffing bank notes
into their suitcases. It applies to all persons and
agencies who are able to transfer funds by electronic
device. In the case of the latter, the money physically
does not leave the country, the same or equivalent amount
is simply transferred from the agency abroad to the
recipient abroad. This is precisely what PW1 said he did
(in cross-examination). Even on this version of the facts,
a prima facie case was made out.
Lastly, the learned Magistrate appears to have erred
in finding support for PW1’s later version of the facts in
the evidence of PW2. In cross-examination (although
counsel for the Respondent told me from the bar table that
he did not ask the question, the learned magistrate had
asked it), PW2 said:
“Payment of $5000 that does not leave Fiji is
not payment out of Fiji.”
I do not read this statement as a declaration that the
$21,000 in this case did not leave Fiji. It appears (and
it is not clear) that the witness was asked whether, if
money in excess of $5000 did not leave Fiji, it was a
payment out of Fiji for the purposes of section 8 of the

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Exchange Control Act. His answer was, quite rightly, that
if payment is not made out of Fiji, the money has not left
the country. That statement has limited relevance to this
case. On PW1’s cross-examination version, he effected the
transfer of the equivalent amount to the Wattle Group in
Australia. The facts were that the payment was made out of
Fiji in a way which is no different from the way in which
payments are made out of Fiji by banks daily. Indeed, PW2
appears to have explained the telegraphic transfer
procedure in re-examination.
Clearly the finding that there was no prima facie case
cannot stand. It is quashed, as is the acquittal.
Result
The order for acquittal is set aside and substituted
with a finding that there was a case for the Respondent to
answer. The case is remitted to the same Magistrate to
continue with the hearing.
…………………………………………………………
Nazhat Shameem
JUDGE
At Suva
5 th September 2003