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

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.