So Judge Priyantha Fernando agreed with the three assessors that the evidence presented by FICAC is beyond reasonable doubt.
There was pin drop silence in High Court number four today at Government Buildings as Justice Fernando read out his ruling. Defence Counsel applied for bail pending sentencing, which was granted on the condition that PM Qarase report daily to the Samabula Police Station.
PM Qarase continues to hold his head up high, and walk with a strong stride, because he knows that he did nothing wrong. All the information about Class A shares was in the public domain, from the GCC where the chiefs approved the extension of shares to Tikina, Village and family companies, to the FAB - it was the responsibility of the officials and the chiefs to encourage their people to take up shares. The FHL Directors tried in vain. The FDB loan facility for shares had been there since 1974 - but they were not soft loans, you had to provide security or equity.
Can we blame Mr. Qarase for helping the people of Cicia as his chief, the PM and Tui Nayau Ratu Sir Kamisese Mara instructed him to do (which he did for the last 40 years without gain), can we blame him for helping Mavana Village? And up to 30 other successful Fijians who had the equity to get an FDB loan also took up Class A shares through their family companies!! Including Tavola, Mataitoga, Bakani, etc etc. FHL did exactly what it was setup to do - increase Fijian involvement in business, and that success has flowed over to their relatives, villages, Tikina and Provinces!!
Sitiveni Weleilakeba, the star rat witness for FICAC also purchased Class A shares. Through him FICAC was able to certify their illegally obtained FHL documents - seized by the idiot RFMF in early 2008 during the illegal raid on FHL. No search warrant was produced (because there wasn't any) and no FHL witness was produced to bring the original documents and certify the copies before the court, unlike the FDB and Westpac documents which were certified in this manner.
This is a travesty of justice by the kangaroo court controlled by Aiyaz, the Shameems and Gates, the political chief justice who is acting President! Indeed a sad day for Fiji, but we continue to hold our heads up high, because the truth will prevail and this injustice will be corrected!
Mitigation takes place from 9.30am tomorrow morning at High Court Number Four. It is important that SDL and PM Qarase's supporters turn up in numbers - even if you cannot get in, your presence and support is important!!!
If anything the SDL should be gearing up and not gearing down; have a media strategy from sentencing onwards...hold your heads up high instead of packing up tents & slinking off home, you have nothing to be ashamed of!! It is a time to SHOW that SDL still commands the vote and support!!
Read the full judgment here.
26 July 2012
Wazzup Yash
So we read that the Constitution Commission begins its work next Friday 3rd August - that is one month AFTER the announced date (1st July) for public consultation.
But no explanation for why they're one month late. Just we're gonna have a meke and some serekali next Friday at the civic center, ONE WHOLE MONTH after we were supposed to start work.
Can we the people of Fiji be told please exactly how much you are being paid Mr. Yash-Man? And your fellow Commissioners, how much they be baggin please?
And who is working at the Commission - you said in June you wanted to appoint your own staff, but no advertisements for the jobs, you've gone ahead and appointed them? How many soldiers? All of them? Right, that really reassures me that you're independent!
And not a pipsqueak about the terms of reference for the Commission imposed by decree no 57 in section 7, with the additional immunity entrenchment as a guiding principle for the Commission and the 900,000 odd souls who call themselves Fiji Islanders.
Ya think that will stop discussion on the immunity and the role and size and future of the military Aiyaz? ummm think again. FAIL!
Let's face it - all of us in Fiji know that immunity will have to be granted, but the ninnies in charge, are so fearful of a DISCUSSION about the coup, immunity, the role of the idiot military, you have to continue stacking the deck and limiting the box in which the Constitution Commission operates.
We guess the 900,000 or so people of these islands will be ummm, THINKING OUTSIDE OF THE BOX as ole Voreqe like to preach to us from December 2006.....
But no explanation for why they're one month late. Just we're gonna have a meke and some serekali next Friday at the civic center, ONE WHOLE MONTH after we were supposed to start work.
Can we the people of Fiji be told please exactly how much you are being paid Mr. Yash-Man? And your fellow Commissioners, how much they be baggin please?
And who is working at the Commission - you said in June you wanted to appoint your own staff, but no advertisements for the jobs, you've gone ahead and appointed them? How many soldiers? All of them? Right, that really reassures me that you're independent!
And not a pipsqueak about the terms of reference for the Commission imposed by decree no 57 in section 7, with the additional immunity entrenchment as a guiding principle for the Commission and the 900,000 odd souls who call themselves Fiji Islanders.
Ya think that will stop discussion on the immunity and the role and size and future of the military Aiyaz? ummm think again. FAIL!
Let's face it - all of us in Fiji know that immunity will have to be granted, but the ninnies in charge, are so fearful of a DISCUSSION about the coup, immunity, the role of the idiot military, you have to continue stacking the deck and limiting the box in which the Constitution Commission operates.
We guess the 900,000 or so people of these islands will be ummm, THINKING OUTSIDE OF THE BOX as ole Voreqe like to preach to us from December 2006.....
25 July 2012
PM Qarase's lawyer makes valiant closing
Today PM Qarase's legal defence team made their closing submission at the Suva High Court.
There was pin drop silence in the court as Tupou Draunidalo, lead defence counsel outlined the lack of evidence presented by the highly paid FICAC persecuting lawyer, flash QC from Hong Kong, Michael Blanchflower.
Draunidalo told the assessors to consider carefully the evidence presented, that it must be beyond reasonable doubt, and satisfy all the elements of each charge, to that standard of proof, "beyond reasonable doubt".
The assessors were told that the very essence of the FICAC case is the allegation that PM Qarase did not declare his interest - but why isn't he being prosecuted for that? It becomes very clear that having failed to find any corruption from PM Qarase's government, FICAC has gone back twenty years to now lay these nine charges.
And reflecting on the case, if one really thinks about it, that is the problem: because in the public sector, civil servants get a salary and they do their job. Civil servants do not work for profit. Whereas in the private sector people invest for profit; and directors work to make profit for the company which is what Mr Qarase did. And this is not a crime. FICAC is trying to make it a crime. Draunidalo emphasised that this is what makes the whole case so confusing and the charges so mixed up: because FICAC is trying to apply public sector rules to private business. But public sector is public, with its own rules, like corruption rules for civil servants. The public sector is where FICAC belongs. The private sector is private, also with its own rules, like the Companies Act. That is where Fijian Holdings is. Fijian Holdings is private. FICAC does not belong there.
Draunidalo urged assessors to consider Mr. Joe Mar's evidence that the company was run on commercial lines, not on vanua principles. Running it on vanua principles would defeat the whole purpose of getting indigenous Fijians into commerce.
Draunidalo said that like Joe Mar, PM Qarase did his duties as a director of the company, with the other Directors - he did not decide alone to allot shares, he did not decide alone the dividends that were to be paid. And FICAC has not proven that he voted - minute taking by the Company Secretary Sitiveni Weleilakeba was so poor, that matters discussed in the 1-2 hour long meetings were not fully covered in the brief minutes following the style preferred by the Chairman Lyle Cupit.
As harsh as it sounds, the memorandum and articles did not bind the Directors to the Vanua, the Provinces or Tikina Councils - the whole point was to introduce indigenous Fijians to the realities of the commercial world, not more of the same failed indigenous commercial initiatives that until then had failed!
Draunidalo then went over all the elements of each of the nine charges, and reminded the assesors of the gaps in the evidence produced by FICAC before them in court - primarily FICAC's star witness, the company secretary, Sitiveni Weleilakeba, who himself faced FICAC charges which were withdrawn in August 2011.
Draunidalo reminded the assessors that the minutes produced in court were only 2 or 3 pages long, so Weleilakeba's statement that "if it wasn't in the minutes, then it didn't take place" is plainly wrong and not good enough. This is because Joe Mar testified and the minutes record, that the meetings went on for one, two, sometimes three hours, so plainly, not everything was recorded by Weleilakeba! And that this is how Cupit preferred the minutes.
Joe Mar recalled declaring his own interest in Nabuabua Holdings, yet it wasn't in the minutes - yet again Weleilakeba failed to record that declaration too!
Draunidalo said the Defence accepts that no one has perfect memory, but that the minutes of FHL board meetings and Welailakeba's recall of the meetings, are plainly unreliable.
Draunidalo asked the assessors to weigh Mar's evidence against Weleilakeba's and to consider that Weleilakeba's charges were dropped earlier by FICAC.
Draunidalo asked the assessors to consider that PM Qarase is not charged with non-disclosure of his interest - the charges he faces are for dishonesty and corruption, and plainly, he did disclose, he did not hide anything from the Board, he signed the application for shares by the three companies, and yes, the Minister for Fijian Affairs at the time, Vatiliai Navunisaravi sat on the FHL Board with PM Qarase.
On the issue of gain, Draunidalo urged the assessors to remember that the 'gain' made by the owners of the three companies did not come from any abuse of office, but from investing or risking their own money - they paid the full price for the shares, and gained from that investment, not from a failure on Mr. Qarase's part to tell the FHL Board or FAB about his connection with the three companies.
And that is why, Draunidalo told the assessors, these charges are so complicated and confusing: because FICAC is trying to turn a crime meant for civil servants into a crime involving shares in a private company.
On the issue of prejudice, the only evidence presented by FICAC are two letters from individuals saying they would like to buy shares - there is no evidence that they were ready to buy shares, or made the application in the required form - FICAC did not produce the letter writers in court, so the letters which were waved around by Weleilakeba are unreliable as indicators of the prejudice that is required under the charges laid against PM Qarase.
Draunidalo questioned how the entire indigenous race was prejudiced by PM Qarase's actions in 1991 and 1992, and where is the proof from FICAC, that their interests were prejudiced.
Instead, the evidence from Joe Mar and Weleilakeba, is that no one wanted to buy FHL shares at the time - the Board struggled to raise interest, reaching out to Provincial Councils, Tikina Councils and receiving a poor response, and because it was a private company, FHL could not at the time, advertise the availability of shares.
It is only Tikinas and Villages who formed companies, and had some equity, who were able to apply for secured loans, to buy shares. And yes, it is easier to mobilise a Tikina, a Village, or a family to pool their resource, form a company, apply for a loan and apply for FHL shares, in the time window available, so that is what happened - a much harder prospect to try to mobilise a whole province - some had trouble even buying their allocated 50,000 A class shares in 1984 when the FAB formed FHL!
Draunidalo then went on to destroy the meagre evidence offered by FICAC on charges 7,8 and 9 on discharge of duty in property of a special character in which the public officer had an interest.
Draunidalo told the assessors that Qarase did not act alone in deciding on dividends for the alleged 'special property' (the FHL shares) rather the directors as a board decided on dividends. In any case, the shares cannot be special property because the FHL did not own its own shares, the shareholders owned those shares, and the Directors owed duties to the shareholders, not to 400,000 indigenous Fijians. It was the Minister for Fijian Affairs, Vatiliai Navunisaravi, who is the ultimate protector of indigenous Fijian interests, as defined in the Fijian Affairs Act - he sat on the Board yet now FICAC wants the world to put that responsibility on PM Qarase alone? FICAC would have assessors believe that one person was responsible for getting 400,000 indigenous Fijians into commerce?
Draunidalo told assessors that it is absurd for FICAC to want to jail PM Qarase because he had the responsibility of getting 400,000 indigenous Fijians into commerce.
In conclusion, Draunidalo emphasised that the burden of proof lay with FICAC, to prove all elements of each charge, beyond reasonable doubt - the defence does not have to prove anything, merely to tear down the meagre case presented by FICAC.
Draunidalo urged the assessors to consider four questions in their deliberations:
Draunidalo emphasised that it is commonsense to consider what corruption is - FICAC's website says its dishonest and happens in secret, and that is what the assessors must consider, apart from the clouding of issues by FICAC's emphasis on the memorandum and articles of association of FHL, the Fijian Affairs Act, the minutes, allotment of shares - where have they proven PM Qarase acted dishonestly?
Draunidalo told assessors that we all know what dishonesty is when we see it - it is not legal technicalities about who disclosed what to whom. Dishonesty is hiding facts from people, lying to them. And she asked – where is the dishonesty here? What has FICAC proven that PM Qarase concealed?
In closing her presentation to the assessors, Draunidalo asked the assessors to consider that PM Qarase's liberty is at stake because of FICAC's flimsy case - saying that everyone knows Mr Qarase because he is the last person that the people of Fiji elected as their Prime Minister, in 2001 and 2006 and that from our knowledge of him, he was at the time, a distant and remote figure for many people. Draunidalo said that the picture of PM Qarase that has emerged in the trial is not of a greedy man who is now very rich at the expense of other indigenous Fijians, but rather the clear picture has emerged of an honest and unassuming man. A man who has given years of service to the small island community he came from; who tried to bring indigenous Fijians into business in a small way, to make them shareholders, to help them to meet the soli and other obligations which, indigenous Fijians know, can be very burdensome.
Draunidalo said that the Mavana and Cicia companies employ professional accountants and they produce annual accounts for everyone to see, the companies are transparent and well-run. A good example of getting indigenous Fijians into business, showing that PM Qarase has not just talked about the aim of getting indigenous Fijians into commerce, he has actually done it - an example of exactly how it should be done.
Draunidalo urged the assessors to remember that PM Qarase did not charge for his advice and help. He and Mrs Qarase earn a modest investment income from their own prudent saving and investing. PM Qarase is not and was never, a man given to greed or dishonesty or abusing his power for gain from others.
Draunidalo reminded the assessors that in the courtroom, PM Qarase is an ordinary citizen, like the rest of us. And that for every one of us, if we were sitting in the dock like PM Qarase, facing a case that is so riddled with contradictions and doubts as this one, would want to be accorded the fairness and justice that is the equal right of every citizen of Fiji. For PM Qarase, that fairness and justice, right now, is in the assessors' hands. And that is why, Draunidalo said, that the assessors can only find Mr Qarase not guilty on all of these charges.
With the closing submissions from both sides made today, the Judge Priyantha Fernando adjourned the trial to Monday 30th July, for his summing up and instruction to assessors.
The assessors will then deliberate and give their verdict.
The Judge will notify FICAC and the Defence to appear in court for the verdict. The Judge may overrule the assessors, whatever verdict they decide.
If PM Qarase is convicted, the Defence team will then have opportunity to mitigate, present character witnesses, before the Judge pronouces the sentence or punishment. Once the Judge gives the sentence, PM Qarase will be jailed. The Defence team will have 28 days to file an appeal, if they wish.
Your correspondent was told last week that the RFMF have warned the Prison authorities to prepare for PM Qarase's conviction. To this we say, go ahead he will be the Mandela of the Pacific!! PM Qarase has already been chosen twice by the people of Fiji at the ballot box, jail him and he will win not only the votes, but the hearts of the people of Fiji!!
Note to supporters of freedom and democracy
If you are in Suva, come on down to the courtroom on Monday, because the Judge's summing up will be a good indication of his assessment of the case too.
Make the effort to come and listen on Monday 30th July, when the verdict is given by the assessors, and for each day that the case is called.
Your correspondent is heartened to see FICAC staff are now no longer taking up all the seats, and to see more of the people of Cicia, Mavana and Lau, and the SDL in the courtroom - more, more!!
FICAC's 'making something out of nothing', says lawyer
"Please remember FICAC is building a huge case and making something out of nothing," she told the assessors. "My client did not hide anything when he applied for the shares."
Ms Draunidalo reminded the assessors that there was no law to stop Mr Qarase from applying for the shares as stated by State witness, Sitiveni Weleilakeba.
Meanwhile, FICAC's senior counsel Michael Blanchflower told the assessors Mr Qarase was not an ordinary person sitting on the FHL board as he was a public servant appointed by the Minister of Fijian Affairs.
"As a public servant the accused should not have done what he did," Mr Blanchflower said. "The accused saw the opportunity and took advantage of it, favouring his friends and family which was unlawful."
Mr Blanchflower said he did not believe that Mr Qarase's private interest in these companies were seriously challenged in the case.
He told the assessors to study the evidence where it says the accused was employed in the public service all the time.
Mr Qarase is charged with six counts of abuse of office and three counts of discharge of duty with respect to property in which he has a private interest.
http://www.fijitimes.com/story.aspx?id=207533
There was pin drop silence in the court as Tupou Draunidalo, lead defence counsel outlined the lack of evidence presented by the highly paid FICAC persecuting lawyer, flash QC from Hong Kong, Michael Blanchflower.
Draunidalo told the assessors to consider carefully the evidence presented, that it must be beyond reasonable doubt, and satisfy all the elements of each charge, to that standard of proof, "beyond reasonable doubt".
The assessors were told that the very essence of the FICAC case is the allegation that PM Qarase did not declare his interest - but why isn't he being prosecuted for that? It becomes very clear that having failed to find any corruption from PM Qarase's government, FICAC has gone back twenty years to now lay these nine charges.
And reflecting on the case, if one really thinks about it, that is the problem: because in the public sector, civil servants get a salary and they do their job. Civil servants do not work for profit. Whereas in the private sector people invest for profit; and directors work to make profit for the company which is what Mr Qarase did. And this is not a crime. FICAC is trying to make it a crime. Draunidalo emphasised that this is what makes the whole case so confusing and the charges so mixed up: because FICAC is trying to apply public sector rules to private business. But public sector is public, with its own rules, like corruption rules for civil servants. The public sector is where FICAC belongs. The private sector is private, also with its own rules, like the Companies Act. That is where Fijian Holdings is. Fijian Holdings is private. FICAC does not belong there.
Draunidalo urged assessors to consider Mr. Joe Mar's evidence that the company was run on commercial lines, not on vanua principles. Running it on vanua principles would defeat the whole purpose of getting indigenous Fijians into commerce.
Draunidalo said that like Joe Mar, PM Qarase did his duties as a director of the company, with the other Directors - he did not decide alone to allot shares, he did not decide alone the dividends that were to be paid. And FICAC has not proven that he voted - minute taking by the Company Secretary Sitiveni Weleilakeba was so poor, that matters discussed in the 1-2 hour long meetings were not fully covered in the brief minutes following the style preferred by the Chairman Lyle Cupit.
As harsh as it sounds, the memorandum and articles did not bind the Directors to the Vanua, the Provinces or Tikina Councils - the whole point was to introduce indigenous Fijians to the realities of the commercial world, not more of the same failed indigenous commercial initiatives that until then had failed!
Draunidalo then went over all the elements of each of the nine charges, and reminded the assesors of the gaps in the evidence produced by FICAC before them in court - primarily FICAC's star witness, the company secretary, Sitiveni Weleilakeba, who himself faced FICAC charges which were withdrawn in August 2011.
Draunidalo reminded the assessors that the minutes produced in court were only 2 or 3 pages long, so Weleilakeba's statement that "if it wasn't in the minutes, then it didn't take place" is plainly wrong and not good enough. This is because Joe Mar testified and the minutes record, that the meetings went on for one, two, sometimes three hours, so plainly, not everything was recorded by Weleilakeba! And that this is how Cupit preferred the minutes.
Joe Mar recalled declaring his own interest in Nabuabua Holdings, yet it wasn't in the minutes - yet again Weleilakeba failed to record that declaration too!
Draunidalo said the Defence accepts that no one has perfect memory, but that the minutes of FHL board meetings and Welailakeba's recall of the meetings, are plainly unreliable.
Draunidalo asked the assessors to weigh Mar's evidence against Weleilakeba's and to consider that Weleilakeba's charges were dropped earlier by FICAC.
Draunidalo asked the assessors to consider that PM Qarase is not charged with non-disclosure of his interest - the charges he faces are for dishonesty and corruption, and plainly, he did disclose, he did not hide anything from the Board, he signed the application for shares by the three companies, and yes, the Minister for Fijian Affairs at the time, Vatiliai Navunisaravi sat on the FHL Board with PM Qarase.
On the issue of gain, Draunidalo urged the assessors to remember that the 'gain' made by the owners of the three companies did not come from any abuse of office, but from investing or risking their own money - they paid the full price for the shares, and gained from that investment, not from a failure on Mr. Qarase's part to tell the FHL Board or FAB about his connection with the three companies.
And that is why, Draunidalo told the assessors, these charges are so complicated and confusing: because FICAC is trying to turn a crime meant for civil servants into a crime involving shares in a private company.
On the issue of prejudice, the only evidence presented by FICAC are two letters from individuals saying they would like to buy shares - there is no evidence that they were ready to buy shares, or made the application in the required form - FICAC did not produce the letter writers in court, so the letters which were waved around by Weleilakeba are unreliable as indicators of the prejudice that is required under the charges laid against PM Qarase.
Draunidalo questioned how the entire indigenous race was prejudiced by PM Qarase's actions in 1991 and 1992, and where is the proof from FICAC, that their interests were prejudiced.
Instead, the evidence from Joe Mar and Weleilakeba, is that no one wanted to buy FHL shares at the time - the Board struggled to raise interest, reaching out to Provincial Councils, Tikina Councils and receiving a poor response, and because it was a private company, FHL could not at the time, advertise the availability of shares.
It is only Tikinas and Villages who formed companies, and had some equity, who were able to apply for secured loans, to buy shares. And yes, it is easier to mobilise a Tikina, a Village, or a family to pool their resource, form a company, apply for a loan and apply for FHL shares, in the time window available, so that is what happened - a much harder prospect to try to mobilise a whole province - some had trouble even buying their allocated 50,000 A class shares in 1984 when the FAB formed FHL!
Draunidalo then went on to destroy the meagre evidence offered by FICAC on charges 7,8 and 9 on discharge of duty in property of a special character in which the public officer had an interest.
Draunidalo told the assessors that Qarase did not act alone in deciding on dividends for the alleged 'special property' (the FHL shares) rather the directors as a board decided on dividends. In any case, the shares cannot be special property because the FHL did not own its own shares, the shareholders owned those shares, and the Directors owed duties to the shareholders, not to 400,000 indigenous Fijians. It was the Minister for Fijian Affairs, Vatiliai Navunisaravi, who is the ultimate protector of indigenous Fijian interests, as defined in the Fijian Affairs Act - he sat on the Board yet now FICAC wants the world to put that responsibility on PM Qarase alone? FICAC would have assessors believe that one person was responsible for getting 400,000 indigenous Fijians into commerce?
Draunidalo told assessors that it is absurd for FICAC to want to jail PM Qarase because he had the responsibility of getting 400,000 indigenous Fijians into commerce.
In conclusion, Draunidalo emphasised that the burden of proof lay with FICAC, to prove all elements of each charge, beyond reasonable doubt - the defence does not have to prove anything, merely to tear down the meagre case presented by FICAC.
Draunidalo urged the assessors to consider four questions in their deliberations:
- at the time, was PM Qarase a civil
servant, or even like a civil servant?
- did PM Qarase hide anything
from anybody?
- was PM Qarase dishonest in his
dealings in any way?
- did PM Qarase or others make
any dishonest gain from what he did?
- and most importantly did PM Qarase abuse his office?
Draunidalo emphasised that it is commonsense to consider what corruption is - FICAC's website says its dishonest and happens in secret, and that is what the assessors must consider, apart from the clouding of issues by FICAC's emphasis on the memorandum and articles of association of FHL, the Fijian Affairs Act, the minutes, allotment of shares - where have they proven PM Qarase acted dishonestly?
Draunidalo told assessors that we all know what dishonesty is when we see it - it is not legal technicalities about who disclosed what to whom. Dishonesty is hiding facts from people, lying to them. And she asked – where is the dishonesty here? What has FICAC proven that PM Qarase concealed?
In closing her presentation to the assessors, Draunidalo asked the assessors to consider that PM Qarase's liberty is at stake because of FICAC's flimsy case - saying that everyone knows Mr Qarase because he is the last person that the people of Fiji elected as their Prime Minister, in 2001 and 2006 and that from our knowledge of him, he was at the time, a distant and remote figure for many people. Draunidalo said that the picture of PM Qarase that has emerged in the trial is not of a greedy man who is now very rich at the expense of other indigenous Fijians, but rather the clear picture has emerged of an honest and unassuming man. A man who has given years of service to the small island community he came from; who tried to bring indigenous Fijians into business in a small way, to make them shareholders, to help them to meet the soli and other obligations which, indigenous Fijians know, can be very burdensome.
Draunidalo said that the Mavana and Cicia companies employ professional accountants and they produce annual accounts for everyone to see, the companies are transparent and well-run. A good example of getting indigenous Fijians into business, showing that PM Qarase has not just talked about the aim of getting indigenous Fijians into commerce, he has actually done it - an example of exactly how it should be done.
Draunidalo urged the assessors to remember that PM Qarase did not charge for his advice and help. He and Mrs Qarase earn a modest investment income from their own prudent saving and investing. PM Qarase is not and was never, a man given to greed or dishonesty or abusing his power for gain from others.
Draunidalo reminded the assessors that in the courtroom, PM Qarase is an ordinary citizen, like the rest of us. And that for every one of us, if we were sitting in the dock like PM Qarase, facing a case that is so riddled with contradictions and doubts as this one, would want to be accorded the fairness and justice that is the equal right of every citizen of Fiji. For PM Qarase, that fairness and justice, right now, is in the assessors' hands. And that is why, Draunidalo said, that the assessors can only find Mr Qarase not guilty on all of these charges.
What next?
With the closing submissions from both sides made today, the Judge Priyantha Fernando adjourned the trial to Monday 30th July, for his summing up and instruction to assessors.
The assessors will then deliberate and give their verdict.
The Judge will notify FICAC and the Defence to appear in court for the verdict. The Judge may overrule the assessors, whatever verdict they decide.
If PM Qarase is convicted, the Defence team will then have opportunity to mitigate, present character witnesses, before the Judge pronouces the sentence or punishment. Once the Judge gives the sentence, PM Qarase will be jailed. The Defence team will have 28 days to file an appeal, if they wish.
Your correspondent was told last week that the RFMF have warned the Prison authorities to prepare for PM Qarase's conviction. To this we say, go ahead he will be the Mandela of the Pacific!! PM Qarase has already been chosen twice by the people of Fiji at the ballot box, jail him and he will win not only the votes, but the hearts of the people of Fiji!!
Note to supporters of freedom and democracy
If you are in Suva, come on down to the courtroom on Monday, because the Judge's summing up will be a good indication of his assessment of the case too.
Make the effort to come and listen on Monday 30th July, when the verdict is given by the assessors, and for each day that the case is called.
Your correspondent is heartened to see FICAC staff are now no longer taking up all the seats, and to see more of the people of Cicia, Mavana and Lau, and the SDL in the courtroom - more, more!!
Nanise Loanakadavu
Thursday, July 26, 2012
Thursday, July 26, 2012
THE Fiji Independent Commission Against Corruption (FICAC) has
not fully proven former prime minister, Laisenia Qarase committed an
offence.
While addressing the three assessors during her closing arguments, defence
lawyer Tupou Draunidalo informed the court her client, Mr Qarase, should not be
convicted as he was not a public servant during the time in question. She said
FICAC was trying to apply public sector rules in the private sector as Fijian
Holdings Limited was a private company at the time."Please remember FICAC is building a huge case and making something out of nothing," she told the assessors. "My client did not hide anything when he applied for the shares."
Ms Draunidalo reminded the assessors that there was no law to stop Mr Qarase from applying for the shares as stated by State witness, Sitiveni Weleilakeba.
Meanwhile, FICAC's senior counsel Michael Blanchflower told the assessors Mr Qarase was not an ordinary person sitting on the FHL board as he was a public servant appointed by the Minister of Fijian Affairs.
"As a public servant the accused should not have done what he did," Mr Blanchflower said. "The accused saw the opportunity and took advantage of it, favouring his friends and family which was unlawful."
Mr Blanchflower said he did not believe that Mr Qarase's private interest in these companies were seriously challenged in the case.
He told the assessors to study the evidence where it says the accused was employed in the public service all the time.
Mr Qarase is charged with six counts of abuse of office and three counts of discharge of duty with respect to property in which he has a private interest.
http://www.fijitimes.com/story.aspx?id=207533
Lawyers address the assessors
July 26, 2012
By JYOTI
PRATIBHA
The defence
and prosecution lawyers in the Fiji Independent Commission Against Corruption
(FICAC) against former Prime Minister, Laisenia Qarase, made closing submissions
to the assessors at the High Court in Suva yesterday.
Defence lawyer, Tupou Draunidalo, addressed the assessors first and summarised what defence felt was evidence that the assessors needed to look at.
This was followed by FICAC senior lawyer, Michael Blanchflower.
The issue of whether or not Qarase was a public servant at the time of the alleged offences was again raised in court by the two lawyers.
Ms Draunidalo told the assessors that Qarase was not on the Fijian Holdings Limited (FHL) board in his capacity as a public servant as he was appointed by the shareholders through the Fijian Affairs Minister.
Mr Blanchflower in his submission told the assessors that Qarase’s “appointment” by a Minister to a board made him a public servant and the laws and rules applicable to a public servant applied to him as well.
Judge Justice Priyantha Fernando will be summing up all evidence and relevant laws for the assessors on Monday.
Defence lawyer, Tupou Draunidalo, addressed the assessors first and summarised what defence felt was evidence that the assessors needed to look at.
This was followed by FICAC senior lawyer, Michael Blanchflower.
The issue of whether or not Qarase was a public servant at the time of the alleged offences was again raised in court by the two lawyers.
Ms Draunidalo told the assessors that Qarase was not on the Fijian Holdings Limited (FHL) board in his capacity as a public servant as he was appointed by the shareholders through the Fijian Affairs Minister.
Mr Blanchflower in his submission told the assessors that Qarase’s “appointment” by a Minister to a board made him a public servant and the laws and rules applicable to a public servant applied to him as well.
Judge Justice Priyantha Fernando will be summing up all evidence and relevant laws for the assessors on Monday.
The charges:
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 (MIL) and Cicia Plantation Co-op Society Limited, when he was one of nine board directors of the FHL.
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 (MIL) and Cicia Plantation Co-op Society Limited, when he was one of nine board directors of the FHL.
Ms
Draunidalo’s submission:
Ms Draunidalo began her address to the assessors by informing them that the charges against her client were based on events that happened more than 20 years ago.
She said that while FICAC existed to clean up corruption, the charges in relation to the trial were from the time when Qarase was not a politician.
She questioned why these charges were made.
The charges of abuse of office were explained to the assessors by Ms Draunidalo who said that abuse of office happens when somebody uses their power wrongly to personally benefit.
She gave examples of three earlier cases where public officers had been prosecuted for abuse of office including a former assistant commissioner of police, a former permanent secretary and a senior police officer at the Lautoka Police Station.
Ms Draunidalo said the application by Qarase for shares of FHL on behalf of the three companies were properly applied for and paid off in full.
She reiterated that nothing was hidden by Qarase and that the other directors of the board were given all documents signed by Qarase.
Ms Draunidalo said that nothing was concealed and that the documents which were given to the directors when the shares were allocated included details of the directors and shareholders of the companies.
The assessors were told that Qarase and his wife, Leba Qarase, who was also a shareholder of MIL earned very meager returns from their shares held in the company.
Ms Draunidalo said the couple did what any couple would do, that is to invest their savings.
She added that the two had taken risks by investing in the companies and that the returns were not “millions of dollars”.
She said the three companies were not given any preferential treatment nor was it because of corruption that they were allocated their shares.
Ms Draunidalo said law convicts those who had done wrong and questioned what had her client, Qarase, done wrong.
FICAC, she said, would try to state that Qarase is a “greedy man” and hid his interest to earn money.
She insisted that he got nothing from Cicia Plantation Co-op Society, $800 annually from MIL and Q-Ten Investments Limited received about $4800 from its investment in MIL.
Ms Draunidalo said the maximum penalty for a company director who did not properly disclose his interest was $1000 and not the charges that her client faced.
Ms Draunidalo began her address to the assessors by informing them that the charges against her client were based on events that happened more than 20 years ago.
She said that while FICAC existed to clean up corruption, the charges in relation to the trial were from the time when Qarase was not a politician.
She questioned why these charges were made.
The charges of abuse of office were explained to the assessors by Ms Draunidalo who said that abuse of office happens when somebody uses their power wrongly to personally benefit.
She gave examples of three earlier cases where public officers had been prosecuted for abuse of office including a former assistant commissioner of police, a former permanent secretary and a senior police officer at the Lautoka Police Station.
Ms Draunidalo said the application by Qarase for shares of FHL on behalf of the three companies were properly applied for and paid off in full.
She reiterated that nothing was hidden by Qarase and that the other directors of the board were given all documents signed by Qarase.
Ms Draunidalo said that nothing was concealed and that the documents which were given to the directors when the shares were allocated included details of the directors and shareholders of the companies.
The assessors were told that Qarase and his wife, Leba Qarase, who was also a shareholder of MIL earned very meager returns from their shares held in the company.
Ms Draunidalo said the couple did what any couple would do, that is to invest their savings.
She added that the two had taken risks by investing in the companies and that the returns were not “millions of dollars”.
She said the three companies were not given any preferential treatment nor was it because of corruption that they were allocated their shares.
Ms Draunidalo said law convicts those who had done wrong and questioned what had her client, Qarase, done wrong.
FICAC, she said, would try to state that Qarase is a “greedy man” and hid his interest to earn money.
She insisted that he got nothing from Cicia Plantation Co-op Society, $800 annually from MIL and Q-Ten Investments Limited received about $4800 from its investment in MIL.
Ms Draunidalo said the maximum penalty for a company director who did not properly disclose his interest was $1000 and not the charges that her client faced.
Elements:
Ms Draunidalo said FICAC had to prove the elements of the crime – which included whether Qarase was a public servant; did an arbitrary act; abused authority of his office for gain while others were prejudiced.
She said Qarase was not employed by the board, rather, he was an advisor or consultant to the FAB which does not make him a public servant.
She said public servants were paid salaries, something her client was not receiving, adding that he was already employed by the Fiji Development Bank. She added that the private sector had its own rules and that FICAC was mixing the public sector’s rules with the private sector.
Regarding whether Qarase was an advisor to the Great Council of Chiefs (GCC), Ms Draunidalo said Qarase made presentations to the GCC and so had many other people, such as Queen Elizabeth II and this did not make her an advisor to the GCC.
For abuse of office, Ms Draunidalo said there were no rules that disallowed a director from applying for and buying shares of FHL.
She stressed that there was no evidence for gain, therefore, that element was also not proven by prosecution.
Ms Draunidalo questioned how others were prejudiced when shares were bought by those three companies when no body seemed interested in buying shares.
She further stated that FHL was an ordinary company and had no special characters as alleged by prosecution.
Ms Draunidalo said FICAC had to prove the elements of the crime – which included whether Qarase was a public servant; did an arbitrary act; abused authority of his office for gain while others were prejudiced.
She said Qarase was not employed by the board, rather, he was an advisor or consultant to the FAB which does not make him a public servant.
She said public servants were paid salaries, something her client was not receiving, adding that he was already employed by the Fiji Development Bank. She added that the private sector had its own rules and that FICAC was mixing the public sector’s rules with the private sector.
Regarding whether Qarase was an advisor to the Great Council of Chiefs (GCC), Ms Draunidalo said Qarase made presentations to the GCC and so had many other people, such as Queen Elizabeth II and this did not make her an advisor to the GCC.
For abuse of office, Ms Draunidalo said there were no rules that disallowed a director from applying for and buying shares of FHL.
She stressed that there was no evidence for gain, therefore, that element was also not proven by prosecution.
Ms Draunidalo questioned how others were prejudiced when shares were bought by those three companies when no body seemed interested in buying shares.
She further stated that FHL was an ordinary company and had no special characters as alleged by prosecution.
Evidence:
Ms Draunidalo questioned the assessors whose evidence would they prefer – former FHL chairman, Josaia (Joe) Mar, or company secretary Sitiveni Weleilekeba, who was previously charged by FICAC together with Qarase but on separate charges.
She said FHL being a private company was governed by such laws and not those which were applicable to the public service.
Ms Draunidalo said Qarase was an honest and unassuming man who gave years of service to small islands for nothing in return.
Ms Draunidalo questioned the assessors whose evidence would they prefer – former FHL chairman, Josaia (Joe) Mar, or company secretary Sitiveni Weleilekeba, who was previously charged by FICAC together with Qarase but on separate charges.
She said FHL being a private company was governed by such laws and not those which were applicable to the public service.
Ms Draunidalo said Qarase was an honest and unassuming man who gave years of service to small islands for nothing in return.
Mr
Blanchflower’s submission:
Mr Blanchflower also addressed the assessors on the elements of the offence.
However, he stressed that the elements noted by Ms Draunidalo were not the elements of the crimes that Qarase was charged with.
He urged the assessors to read through the agreed facts – which had been agreed by both parties, adding that part of the evidence was already agreed to by defence.
Mr Blanchflower said this was a case of strict rules that govern the lawful conduct of persons employed in the public service.
He said that FHL was not any ordinary company.
Referring to evidence already presented in court by the prosecution witnesses, he said that Qarase was entrusted with special duties by the public.
Mr Blanchflower said these special duties were not entrusted to other directors- Mr Mar and Mr Weleilakeba since they were not appointed to the board by the Fijian Affairs Minister.
He said Qarase was on the board to serve all Fijians and not only his family and friends.
Mr Blanchflower presented a chronology of events, which he said helped the prosecution in their case.
He said in November 1991, the FAB approves FHL to sell shares to public – wholly owned companies, tikinas and provincial councils.
In December 1991, Mr Blanchflower said Qarase transferred the shares he held in Q-Ten to his son and resigned from the directorship in January 1992.
Between March and May that year, Q-Ten Investments Limited applied for FHL shares.
Mr Blanchflower said Qarase transferred the shares and resigned as director so when asked he could state that he is neither the shareholder nor a director of the company.
He said Qarase had strong kinship ties with MIL adding that by 1999, Q-Ten was the second largest shareholder of MIL.
While Mr Blanchflower agreed that the minutes of the meeting did not record everything, everything important was noted which included declaration, had it been made.
He said Qarase knew when the shares would be opened up for public and this knowledge was transferred to the Cicia shareholders, when Qarase advised them to sell off their properties to raise money to invest in FHL.
Mr Blanchflower added that many of the defence witness had given evidence in favour of the prosecution.
The hearing resumes on Monday.
Mr Blanchflower also addressed the assessors on the elements of the offence.
However, he stressed that the elements noted by Ms Draunidalo were not the elements of the crimes that Qarase was charged with.
He urged the assessors to read through the agreed facts – which had been agreed by both parties, adding that part of the evidence was already agreed to by defence.
Mr Blanchflower said this was a case of strict rules that govern the lawful conduct of persons employed in the public service.
He said that FHL was not any ordinary company.
Referring to evidence already presented in court by the prosecution witnesses, he said that Qarase was entrusted with special duties by the public.
Mr Blanchflower said these special duties were not entrusted to other directors- Mr Mar and Mr Weleilakeba since they were not appointed to the board by the Fijian Affairs Minister.
He said Qarase was on the board to serve all Fijians and not only his family and friends.
Mr Blanchflower presented a chronology of events, which he said helped the prosecution in their case.
He said in November 1991, the FAB approves FHL to sell shares to public – wholly owned companies, tikinas and provincial councils.
In December 1991, Mr Blanchflower said Qarase transferred the shares he held in Q-Ten to his son and resigned from the directorship in January 1992.
Between March and May that year, Q-Ten Investments Limited applied for FHL shares.
Mr Blanchflower said Qarase transferred the shares and resigned as director so when asked he could state that he is neither the shareholder nor a director of the company.
He said Qarase had strong kinship ties with MIL adding that by 1999, Q-Ten was the second largest shareholder of MIL.
While Mr Blanchflower agreed that the minutes of the meeting did not record everything, everything important was noted which included declaration, had it been made.
He said Qarase knew when the shares would be opened up for public and this knowledge was transferred to the Cicia shareholders, when Qarase advised them to sell off their properties to raise money to invest in FHL.
Mr Blanchflower added that many of the defence witness had given evidence in favour of the prosecution.
The hearing resumes on Monday.
24 July 2012
Joe Mar puts the events of 1992 at FHL in context
The final witness for PM Qarase took the witness stand today from the UK. Joe Mar, a Director of Fijian Holdings Limited (FHL) in 1992, gave evidence via skype to the Suva High Court in a gruelling 3 hour session today - with London 11 hours behind Suva, it was 10pm when he started his evidence.
Mr. Mar an accomplished, no nonsense professional engineer and business executive gave an honest accounting of the situation that faced FHL in 1992 when it opened up shareholding to Tikina Councils, Village and family companies and individuals.
Mr. Mar, a former GM of Shell Fiji, CEO of Telecom Fiji and former Chairman FHL (2006-8), with over 30 years of experience on boards in Fiji and Australia told the court that the board had difficulties selling this new idea of investing in shares.
He said indigenous Fijians were nervous about taking that risk, for a return that was not guaranteed. He said FHL was not the successful company that it is today, and that shareholding was a foreign idea to indigenous Fijians.
Mr. Mar explained that the chairman, Lyle Cupit drove the board, in fact Mar felt that Cupit sometimes pushed his own ideas through, spending alot of time and effort on FHL with his own business career winding down. He said Cupit preferred shorter minutes, and that the 2-3 hours they met, was often not fully reflected in the brief minutes.
Mr. Mar said when the Board had difficulties encouraging Tikina Councils and Provincial Councils to take up Class A shares, he asked whether Directors could purchase shares - this is common in many companies where shareholders expect Directors to take the risk that they are also asking other people to take. He said that Cupit and Weleilakeba pointed out that the Memorandum and Articles did not forbid Directors from investing, so his family company, Nabuabua Holdings obtained a secured loan from FDB, and purchased shares.
Mr. Mar distinctly recalled declaring his interest in Nabuaua Holdings, but is disappointed to see that the secretary Sitiveni Weleilakeba did not record this in the minutes.
He did not remember PM Qarase making the declaration, but that everyone knows he is from Mavana, and that his interest would be apparent to the Board members from the summary prepared by the Secretary Weleilakeba, and in any case, the minutes left something to be desired, not being totally complete.
More below from Fijilive:
Mr. Mar an accomplished, no nonsense professional engineer and business executive gave an honest accounting of the situation that faced FHL in 1992 when it opened up shareholding to Tikina Councils, Village and family companies and individuals.
Mr. Mar, a former GM of Shell Fiji, CEO of Telecom Fiji and former Chairman FHL (2006-8), with over 30 years of experience on boards in Fiji and Australia told the court that the board had difficulties selling this new idea of investing in shares.
He said indigenous Fijians were nervous about taking that risk, for a return that was not guaranteed. He said FHL was not the successful company that it is today, and that shareholding was a foreign idea to indigenous Fijians.
Mr. Mar explained that the chairman, Lyle Cupit drove the board, in fact Mar felt that Cupit sometimes pushed his own ideas through, spending alot of time and effort on FHL with his own business career winding down. He said Cupit preferred shorter minutes, and that the 2-3 hours they met, was often not fully reflected in the brief minutes.
Mr. Mar said when the Board had difficulties encouraging Tikina Councils and Provincial Councils to take up Class A shares, he asked whether Directors could purchase shares - this is common in many companies where shareholders expect Directors to take the risk that they are also asking other people to take. He said that Cupit and Weleilakeba pointed out that the Memorandum and Articles did not forbid Directors from investing, so his family company, Nabuabua Holdings obtained a secured loan from FDB, and purchased shares.
Mr. Mar distinctly recalled declaring his interest in Nabuaua Holdings, but is disappointed to see that the secretary Sitiveni Weleilakeba did not record this in the minutes.
He did not remember PM Qarase making the declaration, but that everyone knows he is from Mavana, and that his interest would be apparent to the Board members from the summary prepared by the Secretary Weleilakeba, and in any case, the minutes left something to be desired, not being totally complete.
More below from Fijilive:
Qarase
vocally declared interest: trial told
July 24 2012
03:26 PM
Former
director of Fijian Holdings Limited (FHL) Laisenia Qarase’s declaration of
interest towards Cicia Plantation Co-op Society Limited, Mavana Investments
Limited and Q-Ten Investments Limited was not recorded in the minutes of an FHL
meeting the High Court in Suva heard this morning.
But this does
not mean that he did not vocally declare his interest
This was
revealed by Defence sixth witness via skype Josaia Mar who was also a former
director at FHL.
Mar told the
court during his examination that former FHL chair Lyle Cupit likes to keep
short minutes and most of the things discussed during the one to two hours
meeting were not recorded.
Mar told the
court only important information like resolutions and board decisions were
usually recorded in the minutes and if Qarase’s interest towards the three
companies were not recorded it does not mean that he did not declare them.
Draunidalo
then asked Mar if he was aware that Qarase was the financial advisor to the
Fijians Affairs Board (FAB) and presented on FHL issues towards the Great
Council of Chiefs (GCC).
Mar then told
the court that he was not aware that Qarase was a financial advisor to FAB but
Qarase was often involved in dealing with government and institutions like the
GCC.
Draunidalo
then asked Mar if Qarase was the main driver or architect in trying to find
shareholders to invest in shares in FHL.
Mar then said
that the main driver was Cupit and other vocal director like himself in the
board but Qarase was usually quiet and they usually consult him on matters of
banking because of his great experience.
Draunidalo
asked the court if FHL directors were encouraged to invest in FHL shares.
Mar told the
court he was the one who asked during their meeting if directors could invest
because mainly in businesses directors have to show confidence in their company
first before asking people to invest.
Mar then told
the court that he invested in FHL shares and followed the normal application
process and vocally declared his interest towards his family owned company
Nabuabua Holdings Limited.
The court
then heard that Mar raised $20,000 and applied for an $80,000 loan with the
Fiji Development Bank (FDB) in order to purchase the 100,000 shares he applied
for.
Draunidalo
then asked if he recalled an application made by Qarase on behalf of the three
companies and if the normal application procedure was followed.
Mar told the
court he recalled an application made by Qarase on behalf of the three
companies and all normal application procedures were followed before approval
from the board.
The court
also heard that it was common knowledge and well-known that Qarase had interest
in the three companies.
In
cross-examining Mar FICAC lawyer Michael Blanchflower asked him if it was the
duties of directors to declare their interests in shares.
Mar replied
yes.
Blanchflower
then asked Mar if he was concerned that his declaration was not recorded in the
minutes of the meeting.
Mar said that
he was concerned that his interest were not recorded in the minutes but it is
of nature that people would know of his interest as the documents set out to
the board would list the names of shareholders and the directors of the
company.
Mar was then
asked if he knew of Qarase’s interest towards the three companies he applied
shares for.
Mar told the
court he was not aware of Qarase’s interest but he knew that Qarase is from Mavana
village and looking at the board papers it would tell you what his position was
with the three companies.
Blanchflower
then asked Mar if he could recall if former FHL chief executive Sitiveni
Weleilakeba had declared his interest in buying shares.
Mar then told
the court that he could not recall but by looking at documents presented before
him he could see that a declaration was made by Weleilakeba.
Blanchflower
then asked Mar to explain more about this.
Mar then told
the court that a chief executive is more involved with negotiations with other
companies, he is the executive of the company and therefore it is important
that he declare his interest.
Blanchflower
then asked if Qarase and Cupit had an opportunity to correct the minutes of the
meeting.
Mar replied
yes.
Qarase is
charged with six counts of abuse of office and three counts of discharge of
duty with respect to a property in which he has a private interest.
It is alleged
Qarase between 1992 to 2000 while employed as a director of Fijian Holdings
Limited, Financial Advisor of the Fijian Affairs Board and advisor to the Great
Council of Chiefs, in abuse of the authority of his office, did arbitrary acts.
He is alleged
to have applied in the name of Cicia Plantation Co-op Society Limited, Mavana
Investments Limited and a family owned company named Q-Ten Investments Limited
for the issuance and allotment of Class A shares in Fijian Holdings Limited.
Defence has
closed its case today and is expected to make their closing submissions
tomorrow.
http://www.fijilive.com/news_new/index.php/news/show_news/46028
17 July 2012
FICAC have not proven their case against PM Qarase
This
morning Tuesday 17th July at the Suva High Court, Justice Priyantha Fernando
heard the submissions from the Defence Counsel for PM Qarase, Tupou Draunidalo.
FICAC Prosecutor, Michael Blanchflower QC made submissions in reply. Both
lawyers have filed written submissions on the No Case to Answer.
The case so far -
summary
The
nine charges relate to the issuing of shares to three companies while Qarase
was a Director of Fijian Holdings Limited:
-
QTen Investments (owned by Leba Qarase and 5
children);
The
trial started 5th July 2012 before Judge Fernando and three Assessors. FICAC
presented 7 witnesses from 5/7/12 to 13/7/12.
On
Monday 16th July, the Defence presented arguments for a Permanent Stay on
Proceedings given that it is now 20 years since the events in question took
place. FICAC counsel presented arguments against that submission and the Judge
will issue his ruling on the application on notice.
Application for no
case to answer
Draunidalo
in her submission to the court asserted that all charges filed by FICAC against
PM Qarase must fail because
No case to answer
- the legal test
-
Has the prosecution made out a prima facie
case against the accused?
The elements of each
charge
On
the 3 discharge of duty charges, FICAC failed to provide evidence that:
Does being Financial
Advisor to the FAB make PM Qarase a "person employed in the public
service"?
Meli
Bainimarama, the current Ambassador to Malaysia and former PS Fijian Affairs
told the court that there is no position of Advisor to the Bose Levu Vakaturaga.
On this ground alone, the prosecution fails.
For
the other two positions listed by FICAC in the charges, that make Qarase a
public officer, that is the positions of:
- - FHL
Director (appointed by the Minister for Fijian Affairs as Class B Director -
20million FAB shares
- - Financial
Advisor to FAB (appointed by the Minister under Fijian Affairs Act &
Regulations.
Draunidalo
asserted that because FHL was a separate entity, his appointed as Director did
not make him a public officer. Neither does Financial Advisor make him a public
officer because the Minister and PS did not control him, did not pay him a
salary, pension or FNPF and that at best, Qarase was a contractor to the FAB,
not an employee.
Did Qarase perform an
arbitrary act in abuse of authority?
Draunidalo
submitted that the charges against PM Qarase are confused because FICAC is
trying to match public law accountability principles with the management of
private interests in a private company.
This
is demonstrated in the fact that PM Qarase never hid what he did - the
applications for shares by QTen, Cicia, Mavana Investments were all done under
his own hand and signature - those letters were given to the FHL Board by the
Company Secretary, along with the Memorandum and Articles of Association of
each applicant Company. And any gains took place through a private
company, whose aim IS private gain.
While
Qarase was advisor to FAB, there is no evidence that he had any control over
anything at FAB (Meli Bainimarama's evidence that he only advised, did not vote
at FAB meetings, was not under the Minister or PS control). So it cannot be
said that as FAB Advisor he made the application for shares.
As
an FHL Director, there was no evidence presented by FICAC that Qarase spoke in
favor of the applications, or directed an FHL staff to do something in favor of
the applications or spoke in favor or alloted the shares to them - as one of 9
directors, his vote did not make a difference.
In
fact the facilitation of approval of the share allotments, was the carrying out
of his duty as FHL Director. Draunidalo asserted that in doing this, he was
guided by the FHL Memo and Articles and Companies Law and regulations, this was
certainly not an arbitrary act in abuse of his authority.
Draunidalo
said that FICAC made much of Mr Weleilakeba’s evidence that Qarase did not
declare his interest before voting in favour of the allocation of shares to the
Three Shareholders. But Qarase is not charged with failing to
declare his interest in a company matter. If so, he would have been charged
under s.201 of the Companies Act. He is instead charged with engaging in or
directing an act in abuse of his office.
Draunidalo
said that FICAC alleged that it is also an element of each of the six charges
that Qarase’s actions in applying for and/or “facilitating approval” of the
shares was “in priority” to other eligible Provincial and Tikina Councils,
FAB and indigenous Fijian people. No evidence has been led that Provincial
and Tikina Councils or the FAB were denied priority for shares taken by any of
Q-Ten, CPCS or Mavana.
Done for gain?
Prejudicial to the
rights of another?
Draunidalo
told the court that generally the shareholders and officers of a private
company may allocate shares to whoever they like, in the quantities they like
(as Weleilakeba testified). And that a private company unlike a public
company is not bound to allocate shares to all comers. That is an
important difference between a public and private company.
Draunidalo
said that in any case, a private company is prohibited by law from offering
shares publicly, with a limit of fifty subscribers. This was remedied when the
company went public and was then listed on the stock exchange, making the
shares available to all registered in the VKB.
Draunidalo
asked the court to consider that no evidence had been presented to prove all
the essential elements of the first 6 abuse of office charges, and so the FICAC
case must fail.
The last 3 charges -
discharge of duty
Draunidalo
said that FICAC made much noise about the dividends, but that is neither here
nor there - they were paid to every Class A shareholder. They do not go to
prove the elements of the discharge of duty offence.
The elements of the discharge
of duty offence
1.
Employment in the public service
Element A - public
officer
Element B - charged
with administrative duties
Element C - property
of a special character
There
was no evidence led by FICAC that Qarase was under any explicit instruction to
administer the FHL duties in that way. In fact, to do otherwise would have been
in breach of his FHL Directors fiduciary duty!
Element D - acquiring
a direct or indirect interest in that special property
Element E -
discharging duty in relation to that special property
The
elements of the offence not made out in the prosecution evidence are:
Draunidalo
submitted that all charges must fail because the essential elements of each
charge have not been proven by FICAC.
Where to from here?
The
Judge set aside today Tuesday 17th July for the argument on the application for
no case to answer, and instructed assessors to be back in court on Wednesday
18th July for the trial to resume.
This
morning Tuesday 17th July at the Suva High Court, Justice Priyantha Fernando
heard the submissions from the Defence Counsel for PM Qarase, Tupou Draunidalo.
FICAC Prosecutor, Michael Blanchflower QC made submissions in reply. Both
lawyers have filed written submissions on the No Case to Answer.
The case so far -
summary
PM
Qarase faces 9 charges, six are for abuse of office (section 111 Penal Code)
and three are for discharge of duty (s109 Penal Code).
The
nine charges relate to the issuing of shares to three companies while Qarase
was a Director of Fijian Holdings Limited:
-
QTen Investments (owned by Leba Qarase and 5
children);
-
Cicia Plantation Co-Op Ltd (owned by the 15
Mataqali on Cicia Island) and
-
Mavana Investments (owned by the Mavana
Village Trust and villagers).
The
trial started 5th July 2012 before Judge Fernando and three Assessors. FICAC
presented 7 witnesses from 5/7/12 to 13/7/12.
On
Monday 16th July, the Defence presented arguments for a Permanent Stay on
Proceedings given that it is now 20 years since the events in question took
place. FICAC counsel presented arguments against that submission and the Judge
will issue his ruling on the application on notice.
Application for no
case to answer
Draunidalo
informed the court that on all nine charges, the Prosecution have not proven
a prima facie case (Latin for "at first look," or "on
its face," where in a criminal trial, the prosecution has the burden of
presenting prima facie evidence of each element of the crime charged against
the accused or defendant)
Draunidalo
in her submission to the court asserted that all charges filed by FICAC against
PM Qarase must fail because
-
the essential elements for the abuse of
office charges have not been made out
-
the essential element of the discharge of
duty charges have not been proven
No case to answer
- the legal test
Ratu
Walesi did some reading and found that the legal tests for 'no case to answer'
is laid out in various judgments in the Fiji courts. There are three questions
that the court may ask itself when the Defence lawyer makes this application:
-
Has the prosecution made out a prima facie
case against the accused?
-
Has the prosecution presented evidence to
prove all the essential elements in the alleged offences?
-
Has the evidence adduced by the prosecution
been so discredited as a result of cross-examination or is so manifestly
unreliable that no reasonable tribunal could safely convict on it?
The elements of each
charge
Draunidalo
outlined the submission from the defence, that on the six abuse of office
charges, FICAC have failed to prove:
-
that Qarase was 'employed in the public
service'
-
that Qarase committed an arbitrary act in
abuse of his authority
-
that the arbitrary act in abuse of authority
was prejudicial to the interests of others
-
and that the arbitrary act in abuse of
authority led to a private gain for Qarase
On
the 3 discharge of duty charges, FICAC failed to provide evidence that:
-
-Qarase was 'employed in the public service'
-
there is property of a special character
-
Qarase committed any wrong in discharging a
duty in respect of property of a special character that he had an interest in.
Does being Financial
Advisor to the FAB make PM Qarase a "person employed in the public
service"?
Meli
Bainimarama, the current Ambassador to Malaysia and former PS Fijian Affairs
told the court that there is no position of Advisor to the Bose Levu Vakaturaga.
On this ground alone, the prosecution fails.
For
the other two positions listed by FICAC in the charges, that make Qarase a
public officer, that is the positions of:
- - FHL Director (appointed by the Minister for Fijian Affairs as Class B Director - 20million FAB shares
- - Financial Advisor to FAB (appointed by the Minister under Fijian Affairs Act & Regulations.
Draunidalo
asserted that because FHL was a separate entity, his appointed as Director did
not make him a public officer. Neither does Financial Advisor make him a public
officer because the Minister and PS did not control him, did not pay him a
salary, pension or FNPF and that at best, Qarase was a contractor to the FAB,
not an employee.
Did Qarase perform an
arbitrary act in abuse of authority?
On
the second element for the abuse of office charge, Draunidalo told the court
that this is not a case of official corruption, but that instead, this case is
about the pursuit of commercial aspirations through companies with their own
statutory regulations.
Draunidalo
submitted that the charges against PM Qarase are confused because FICAC is
trying to match public law accountability principles with the management of
private interests in a private company.
This
is demonstrated in the fact that PM Qarase never hid what he did - the
applications for shares by QTen, Cicia, Mavana Investments were all done under
his own hand and signature - those letters were given to the FHL Board by the
Company Secretary, along with the Memorandum and Articles of Association of
each applicant Company. And any gains took place through a private
company, whose aim IS private gain.
While
Qarase was advisor to FAB, there is no evidence that he had any control over
anything at FAB (Meli Bainimarama's evidence that he only advised, did not vote
at FAB meetings, was not under the Minister or PS control). So it cannot be
said that as FAB Advisor he made the application for shares.
As
an FHL Director, there was no evidence presented by FICAC that Qarase spoke in
favor of the applications, or directed an FHL staff to do something in favor of
the applications or spoke in favor or alloted the shares to them - as one of 9
directors, his vote did not make a difference.
In
fact the facilitation of approval of the share allotments, was the carrying out
of his duty as FHL Director. Draunidalo asserted that in doing this, he was
guided by the FHL Memo and Articles and Companies Law and regulations, this was
certainly not an arbitrary act in abuse of his authority.
Draunidalo
said that FICAC made much of Mr Weleilakeba’s evidence that Qarase did not
declare his interest before voting in favour of the allocation of shares to the
Three Shareholders. But Qarase is not charged with failing to
declare his interest in a company matter. If so, he would have been charged
under s.201 of the Companies Act. He is instead charged with engaging in or
directing an act in abuse of his office.
Draunidalo
said that FICAC alleged that it is also an element of each of the six charges
that Qarase’s actions in applying for and/or “facilitating approval” of the
shares was “in priority” to other eligible Provincial and Tikina Councils,
FAB and indigenous Fijian people. No evidence has been led that Provincial
and Tikina Councils or the FAB were denied priority for shares taken by any of
Q-Ten, CPCS or Mavana.
Done for gain?
Draunidalo
told the court that FICAC led no evidence that Qarase had any private interests
in QTen, Mavana and Cicia. For Cicia he was an unpaid advisor for over forty
years (except for a $2000 donation in the 2006 elections).
Prejudicial to the
rights of another?
Draunidalo
asserted that FICAC's evidence has not established that any person was
prejudiced by Qarase's application for shares for the 3 companies and by the
allotment of shares to the 3 companies.
Draunidalo
told the court that generally the shareholders and officers of a private
company may allocate shares to whoever they like, in the quantities they like
(as Weleilakeba testified). And that a private company unlike a public
company is not bound to allocate shares to all comers. That is an
important difference between a public and private company.
Draunidalo
said that in any case, a private company is prohibited by law from offering
shares publicly, with a limit of fifty subscribers. This was remedied when the
company went public and was then listed on the stock exchange, making the
shares available to all registered in the VKB.
Draunidalo
asked the court to consider that no evidence had been presented to prove all
the essential elements of the first 6 abuse of office charges, and so the FICAC
case must fail.
The last 3 charges -
discharge of duty
The
last 3 charges relate to PM Qarase's actions as an FHL Director, allegedly
approving dividends for the 3 companies.
Draunidalo
said that FICAC made much noise about the dividends, but that is neither here
nor there - they were paid to every Class A shareholder. They do not go to
prove the elements of the discharge of duty offence.
The elements of the discharge
of duty offence
The
five elements that FICAC must prove for the discharge of duty offence to be
made out are:
1.
Employment in the public service
2.
Charged with an administrative duty
3.
For property of a special character
4.
Accused acquires an interest in the property
5.
Accused discharges duty in that property
Element A - public
officer
Draunidalo
referred the court to the argument that Qarase was NOT a public officer, not
advisor to the GCC, not paid a salary, pension or FNPF and not under the
control of the Minister.
Element B - charged
with administrative duties
Draunidalo
told the court that Qarase as financial advisor to the FAB, was not charged
with any administrative duties in relation to FHL shares or the FHL business -
and FICAC led no evidence to prove this.
Element C - property
of a special character
Draunidalo
told the court that as FHL Director, his only duty was to administer his duties
as Director. While FAB and GCC might have intended that the compan increase
Fijian participation in business, this is not in the FHL memo and articles of
association.
There
was no evidence led by FICAC that Qarase was under any explicit instruction to
administer the FHL duties in that way. In fact, to do otherwise would have been
in breach of his FHL Directors fiduciary duty!
Element D - acquiring
a direct or indirect interest in that special property
Draunidalo
asserted that FICAC had submitted no cogent evidence that Qarase had an
interest in the 3 companies.
Element E -
discharging duty in relation to that special property
Draunidalo
told the court that many directors of private companies own shares in companies
and exercise duties as directors of those companies. That is the norm. PM
Qarase did nothing wrong by acting as a director of FHL simply because his
private interests may have attached to some of its shares. It has not been suggested
that he did anything wrong in doing so.
The
elements of the offence not made out in the prosecution evidence are:
-
that PM Qarase was employed in the public
service at the time
-
that PM Qarase was charged by virtue of
his employment at the time (if he was a public officer) with any judicial
or administrative duties
-
that FHL’s property was property of
a special character
-
that PM Qarase carried out duties with
respect to the property…or business of FHL in which he had a private interest.
Draunidalo
submitted that all charges must fail because the essential elements of each
charge have not been proven by FICAC.
Where to from here?
After
the Defence submission, FICAC counsel have opportunity to make their argument
to the court, and then the defence have a right of reply.
The
Judge set aside today Tuesday 17th July for the argument on the application for
no case to answer, and instructed assessors to be back in court on Wednesday
18th July for the trial to resume.
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