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By JYOTI PRATIBHA
The High Court in Suva yesterday ruled that prosecution had sufficient evidence to continue their case against former Prime Minister, Laisenia Qarase.
The case continues today with defence starting its evidence against the case brought by the Fiji Independent Commission Against Corruption (FICAC).
Judge Justice Priyantha Fernando also struck out an application for permanent stay made by defence lawyer, Tupou Draunidalo.
Qarase denies six counts of abuse of office and three counts of discharge of duty with respect to property in which he has a private interest.
It has been alleged that Qarase did not declare his vested interests in Q-Ten, Mavana Investments Limited and Cicia Plantation Co-op Society Limited, when he was one of nine board directors of the Fijian Holdings Limited (FHL).
Reasons for “case to answer”:
Defence had applied for no case to answer after prosecution closed its case last week.
Justice Fernando said the test to be applied to an application for no case to answer is that, there must be some relevant and admissible evidence – direct or circumstantial regarding all elements of the offence.
For the six counts of abuse of office, Justice Fernando said the elements of the offence are to note whether: Qarase was employed in the public service; did an arbitrary act; acted in abuse of authority of his office; and if the act was prejudicial to the rights of another.
He said that it was an agreed fact that Qarase was appointed as financial advisor to the Fijian Affairs Board (FAB) on March 8, 1979, and was the advisor to the board at “all material times”.
Justice Fernando stated that according to the wide definition of the term “public service”, Qarase was a person employed in the public service.
The argument from defence had been that Qarase had to be employed in all three institutions – the Great Council of Chiefs (GCC), the FAB and FHL to be a “person employed in public service”.
Justice Fernando said this was not tenable.
However, Justice Fernando noted that it was not for the judge to decide on the reliability of evidence given by FICAC witnesses – Ratu Meli Bainimarama and Sitiveni Weleilakeba at this stage.
He said that the element that Qarase was employed in the public service was common to all nine counts that he faces.
Justice Fernando noted that it has already been agreed by the defence and prosecution that Qarase had applied for shares of FHL on behalf of Q-Ten Investment Limited, Cicia Plantation Co-op Society and Mavana Investments Limited.
He said it was also an agreed fact that the FHL board of approved the allotment of shares to the three companies, adding that when the said allotment of shares were approved, Qarase was present at the relevant board meetings and that it is not recorded that he abstained from voting during the discussion.
Evidence so far:
Justice Fernando stated that Ratu Timoci Vesikula, in his capacity as the then Minister for Fijian Affairs, had given evidence that he did not find any records of a declaration by Qarase of his interest in the three companies.
He also noted the evidence presented so far by Mr Weleilakeba, who was the then secretary of FHL that no record meant that no disclosure of interest was made.
“There is also evidence led by the prosecution of the interests the accused had on those three companies.
“Therefore, I find that there is some evidence led by the prosecution touching the elements of an arbitrary act and that the act was in abuse of his authority of his office,” Justice Fernando said.
He said it was an agreed fact that when Class B shares were created, following the $20 million loan to FHL, Qarase was appointed as a director of the board of FHL.
Justice Fernando said therefore, the prosecution has led some evidence that Qarase was charged with administration duties, which is one of the elements for the count of “discharge of duty with respect to property in which he has a private interest”.
He said Qarase’s application and acquisition of shares on FHL for the three companies led to prosecution’s evidence of his direct or indirect private interests in the companies.
Application for permanent stay:
Defence had also filed for a permanent stay on proceedings, which was also struck out by Justice Fernando.
Ms Draunidalo had informed the court that the charges against Qarase were 20 years old and that many of the defence witnesses were either dead or too ill to give witness.
She had also submitted in court that several documents, using which they would have been able to present a strong defence was missing and no longer available.
This was vehemently disputed by FICAC senior lawyer, Michael Blanchflower.
Justice Fernando said at no time had Qarase indicated that a stay application would be made.
“At all times the accused either indicated that he wants a lawyer of his choice to adequately present his defence or that he has found a new defence theory. All of a sudden, he now makes an application for stay on the basis that the delay will embarrass or prejudice his defence,” Justice Fernando said.
He said the application for stay was a recent invention and the premise it was made on was baseless.
Defence case from today:
Defence will start its case today. Ms Draunidalo told the court that because of the nature of the case, many people were unwilling to give evidence. She said they will be conducting a videolink examination of a witness based in England.
She informed the court that Qarase will not take the stand and that they will be presenting six witnesses.
Two defence witnesses are expected to take stand today.
Reasons for delay:
February 25, 2008: FICAC charged Qarase and he was brought before the Magistrates Court the same day.
March 28, 2008: Case adjourned for final disclosures
June 23, 2008: Disclosure served. Bail extended
August 27, 2008: FICAC informed the court that the case needed to be referred to the DPP’s Office for consent on the charges of abuse of office.
September 24, 2008: DPP’s Office asks for a month to discuss the case further with FICAC lawyers
October 27, 2008: Applicant not present.
December 8, 2008: FICAC applies for case to transfer to the High Court.
January 27, 2009: Adjourned for ruling on FICAC’s application for transfer
February 2, 2009: Magistrate absent
February 5, 2009: Case transferred to the High Court
February 11, 2009: Bail variation application made
March 5, 2009: First call before Justice Nazhat Shameem.
July 11, 2009: Mr Qoriniasi Bale made application that Qarase wanted to travel overseas to raise money for his legal fees
July 22, 2009: Application to travel refused
September 7, 2009: Motion by FICAC to consolidate charges of Qarase and Weleilakeba
November 27, 2009: Fresh information filed by FICAC
January 19, 2009: Justice Daniel Goundar adjourned the substantive matter
February 25, 2010: Weleilakeba’s lawyer sought adjournment to hear submission on consolidation of charges
June 4, 2010: Case called before Justice Fernando
August 16, 2010: hearing of motion for consolidation
September 3, 2010: ruling on consolidation
October 18, 2010: consolidated charges filed and served
December 3, 2010: case called to fix trial date.
March 28, 2011: FICAC told the court that proposed agreed facts were furnished by Mr Bale
June 10, 2011: Case called before Justice Fernando, as Justice Goundar was absent
June 24, 2011: Pre-trial conference
July 22, 2011: FICAC applied to vacate the trial date
August 26, 2011: Charges against Weleilakeba not proceeded
September 2, 2011: FICAC made submissions on draft amended charges
October 12, 2011: Mr Bale informed that they were looking for overseas lawyer
October 17, 2011: Mr Bale made application to vacate the trial date.
November 4, 2011: FICAC ready to take up trial, but Mr Bale told the court that an overseas lawyer not available.
February 3, 2012: Case called before Justice Fernando in Justice Goundar’s absence
February 10, 2012: Mr Bale confirmed lawyer in Australia retained
June 19, 2012: Applicant applied to vacate trial date fixed for July 3.
June 21, 2012: Application for adjournment of trial date refused
June 28, 2012: Final pre-trial conference
July 2, 2012: New lawyer, Ms Draunidalo applied for an adjournment of trial. Adjournment granted until July 5.