Fiji Independent Commission Against Corruption v Qarase [2012] FJHC 1222; HAM110.2012 (19 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Miscellaneous Case No.: HAM 110 of 2012

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

v

LAISENIA QARASE

Counsel: Mr. SC/Blanchflower M, Ms. Yang E.
and Ms. Sanmogam S for FICAC
Ms. Vaniqi S and Ms. Draunidalo T for the Accused

Date of Hearing: 16th July 2012

Date of Ruling: 19th July 2012

RULING ON STAY

1. The application before the Court is by the accused to stay the criminal proceedings against him.
   
2. The application was filed after the trial commenced and after the first witness of the prosecution had given evidence. FICAC vehemently opposes the application.
   
3. The accused is charged with 6 counts of "Abuse of Office" contrary to section 111 of the Penal Code Cap. 17 (now repealed) and with 3 counts of "Discharge of Duty with Respect to property in which he has a Private Interest" contrary to section 109 of the Penal Code Cap. 17.
   
4. The charges were laid against the accused initially on 25 February, 2008. Since then and now, there were various reasons why the matter was adjourned, the chronology of which has been aptly summarized by the prosecution in the affidavit of Umit Singh dated 10/07/2012 and not objected to by the accused, is as follows:-
   
   1. On 25th February 2008, FICAC laid charges against the Applicant and he was brought to the Magistrates Court on the same day. He appeared with counsel before the Resident Magistrate, Ms. Aruna Prasad. The case was adjourned for mention to 28th March 2008.
      
   2. Thereafter the Applicant was represented by counsel who appeared in the Magistrates Court on the following dates:
      
      1. 28th March 2008 – Case was adjourned to 23rd June 2008 for mention for final disclosures.
         
      2. 23rd June 2008 – Disclosure had been served. The second phase of disclosure had to be carried out. Case was adjourned to 27th August 2008 for mention. Bail extended.
         
      100. 27th August 2008 – FICAC informed the Magistrates Court that the case needed to be referred to the DPP's office for DPP's consent on the charges of abuse of office. Therefore, only after the DPP's consent was obtained, that the case could be fixed for trial. Case adjourned to 24th September 2008.
           
      4. 24th September 2008 – DPP informed the Magistrates Court that it was very likely that consent to the charges would be given, but they needed more time to discuss the case with FICAC lawyers. The DPP asked for one month. Defence objected. Case adjourned to 27th October 2008.
         
      5. 27th October 2008 – Applicant not present. Case adjourned to 8th December 2008.
         
      6. 8th December 2008 – FICAC applied for transfer to the High Court. Defence applied to adjourn the matter to 2009 as: (i) they were making arrangements with their overseas counsel to advise them; (ii) there was an appeal on the legality of the Government (Qarase v Bainimarama); and (iii) it was premature to have the case transferred to the High Court. Case adjourned to 27th January 2009.
         
      7. 27th January 2009 – Ruling on FICAC's application for transfer of case to the High Court would be made on 2nd February 2009.
         
      8. 2nd February 2009 – Magistrate was absent and hence case adjourned to 5th February 2009.
         
   3. I am informed and verily believe that, at all times, the Applicant or his counsel never informed the Magistrates Court that the Applicant would have any difficulty in defending his charges by reason of unavailable witnesses or documents. Further, I am informed and verily believe that the Applicant and his counsel never informed the Magistrates Court during any appearance that there were undue delays in his trial.
      
   4. On 5th February 2009, the matter was transferred to the High Court. Since then, the Applicant and/or his counsel, Mr. Qoroniasi Bale, made the following court appearances at the hearings on:
      
      • (a) 11th February 2009 – An application was made by the Applicant to vary bail condition since he wished to travel to Australia from 12th February 2009 to 6th March 2009. The Court allowed the Applicant to travel to Australia and ordered him to return to Fiji and appear in Court on 5th March 2009.
        
      • (b) 5th March 2009 – First call before Madam Justice Shameem. Case adjourned to 15th May 2009 to set trial date.
        
      • (c) 15th July 2009 – Mr. Bale made submissions to the Court that the Applicant wished to travel overseas to fundraise to pay his legal bills. Prosecution objected to the application. Case adjourned to 22nd July 2009.
        
      • (d) 22nd July 2009 – Ruling on the application by the Applicant to travel abroad. Application was refused. Case adjourned to 7th September 2009.
        
      • (e) 7th September 2009 – Motion by FICAC to consolidate the charges against Mr. Sitiveni Weleilakeba and the Applicant. Court ordered timetable for submissions on FICAC's Motion. Case adjourned to 27th November 2009 for hearing of Motion.
        
      • (f) 27th November 2009 – Leave granted by Court for FICAC to withdraw the existing information and file a fresh information adding an additional charge of conspiracy. Case adjourned to 19th January 2010 for mention.
        
      • (g) 19th January 2010 – Mr. Justice Goundar adjourned the substantive matter to 25th February 2010.
        
      • (h) 25th February 2010 – Mr. Weleilakeba's counsel sought an adjournment for the hearing of submissions on consolidation until May 2010 as his principal counsel could not attend Court due to other commitments. Case adjourned to 21st May 2010.
        
      • (i) 4th June 2010 – Matter called before Mr. Justice Fernando who adjourned the case to 25th June 2010 before Mr. Justice Goundar for mention.
        
      • (j) 16th August 2010 – Hearing of Motion for consolidation.
        
      • (k) 3rd September 2010 – Ruling on consolidation.
        
      • (l) 18th October 2010 – Consolidated charges filed and served.
        
      • (m) 3rd December 2010 – Case called to fix trial date. FICAC asked for early trial date. Judge informed parties that the only trial date available was 12th September 2011, for 4 weeks. All parties agreed on the trial date. Mr. Bale informed the Court that both the Applicant and Mr. Weleilakeba would be engaging overseas counsel. Judge told the parties that he would set the trial date now so that when the parties contact their counsel whom they intend to engage, they would know the trial date. Case adjourned to 28th March 2011 for Pre-trial Conference ("PTC").
        
      • (n) 28th March 2011 – FICAC informed the Court that proposed Agreed Facts were furnished to Mr. Bale. Case adjourned to 10th June 2011 for further PTC.
        
      • (o) 10th June 2011 – Matter called before Mr. Justice Fernando since Mr. Justice Goundar was not present.
        
      • (p) 24th June 2011 – Pre-trial Conference. FICAC informed the Court that its Senior Counsel was out of the country and requested a short adjournment. Mr. Bale submitted that he preferred that the pre trial issues be settled before trial as they had little time left. Case adjourned to 22nd July 2011 for PTC.
        
      • (q) 22nd July 2011 – FICAC applied to vacate the trial date fixed for 12th September 2011 as they wished to engage overseas counsel. No objection from the defence counsel. Trial re-fixed for 31st October 2011. Case adjourned to 26th August 2011.
        
      • (r) 26th August 2011 – Charges against Mr. Weleilakeba not proceeded with. FICAC informed the Court on draft amended charges against the Applicant and served the same to Mr. Bale. Case adjourned to 2nd September 2011.
        
      • (s) 2nd September 2011 – FICAC counsel made submissions on the draft amended charges. No objections from defence counsel for the draft amended information to be filed and served.
        
      • (t) 12th October 2011 – Mr. Bale informed the court that they were looking for overseas counsel and they would make an application to vacate the trial date of 31st October 2011 if the need arose. Mr. Bale also confirmed that the defence would be able to confirm the availability of overseas counsel by the end of the month. Case adjourned to 17th October 2011.
        
      • (u) 17th October 2011 – Mr. Bale made an application to vacate the trial date, and the trial date was re-fixed to 22nd November 2011. Case adjourned to 4th November 2011.
        
      • (v) 4th November 2011 – FICAC ready to take up trial on the rescheduled trial date of 22nd November 2011. Mr. Bale informed the Court that he had discussion with overseas counsel from NSW and they were not available for trial on 22nd November 2011. The Court informed the parties that the earliest trial date was in July 2012. Mr. Bale informed the Court that he preferred an early trial date in 2012, however if the Court did not have an early date then he would accept July 2012 for trial. Case adjourned to 3rd February for mention to confirm trial date for all counsel.
        
      • (w) 3rd February 2012 – Mr. Justice Goundar was not present therefore matter adjourned to 10th February 2012.
        
      • (x) 10th February 2012 – Mr. Bale confirmed to the Court that he had retained a counsel from Australia. When he was asked for their names, Mr. Bale informed the Court they have 2 counsels but he had yet to confirm who would appear for the trial. He said that now the trial date was finalized, he would be able to confirm who the counsels were. Case adjourned to 19th June 2012 for PTC.
        
      • (y) 19th June 2012 – The Applicant applied to vacate the trial date fixed for 3rd July 2012. Case adjourned to 21st June 2012 for ruling.
        
      • (z) 21st June 2012 – Application for adjournment of trial refused.
        
      • (aa) 28th June 2012 – Final PTC. Mr. Bale informed the Court that the Applicant was seeking new counsel. Case adjourned to 2nd July 2012.
        
      • (bb) 2nd July 2012 – Applicant's new counsel applied for an adjournment of trial. Adjournment granted until 5th July 2012.
        

Grounds/Submissions in Support of Stay

5. The accused has raised the following grounds in support of his application, which I summarize and itemize consecutively to be:-
   

(a) The accused will not be able to properly defend the charges against him.

It is specifically submitted under this head that many potential witnesses of the accused are either too old or have died and that the accused has difficulty in obtaining exculpatory documents.

The accused says that the potential witnesses include the former Prime Minister and Members of Cabinet, Mr. Lyle Cupit who was also the former chairman of Fijian Holdings Limited ("FHL"), Mr. Josefata Kamikamica, Mr. Vatiliai Navunisaravi and other deceased members of the Board of Fijian Affairs Board ("FAB"), Fijian Holdings Limited ("FHL") and the Fiji Development Bank ("FDB"). It is contended that these witnesses evidence would have explained the accused person's role and involvement in the FHL board meetings.

On the unavailability of the documents the accused states that the documents include those that set out the allotment and issue of shares when Fijian Holdings Limited sought public capitalization. Those documents would be in custody of various government offices, statutory and private offices. It is alleged that those documents would have been destroyed and unavailability of it will prejudice the defence of the accused.

The accused states that his counsel has tried to obtain certain documents from the Companies Registry like compliance documents of FHL and that the documents could not be obtained. These documents, it is contended, are relevant to the defence, unavailability of which will embarrass the defence.

(b) That the accused was charged late.

The accused avers that the charges against him are 20 years old. There are both pre and post charge delays, all of which must be laid at the door of the prosecution because no genuine reason has been provided by the prosecution in regards the delay for which the accused must be exonerated from the existing prosecution.

(c) The above circumstances will make the prosecution an abuse of the Court process.

Grounds/Submissions in Reply

6. In response to the element of delay, FICAC states that in considering the aspect of trying the accused within a reasonable time, the relevant time period, is the post charge delay. A number of authorities were cited in support. Prosecution says that the delay is therefore only 4 ½ years and in that period the accused also asked for several adjournments and was not ready to proceed. All adjournments by the prosecution were justified. Be that as it may, the prosecution avers that the accused has not shown the prejudice he may suffer as a result of the 4 ½ years delay.
   
7. The prosecution further contends that Mr. Cupit passed away before the charges were laid. There is no evidence when the other two witnesses passed away and whatever may be the dates of the deaths, there is no evidence by the accused that the witnesses would have been available to testify or what they would have said would be material to the evidence. Furthermore, in cross examination of PW1 Mr. Bainimarama, the issues of missing witnesses or documents were not put to him.
   
8. The prosecution says that the accused has not produced any evidence of any fault, bad faith or manipulation on its part which has caused the delay. The question of delay, missing witnesses and documents are recent invention. At no time were these matters raised before.
   
9. The prosecutions says that what the accused has failed to show is the material prejudice and if there is any delay the public interest factor will override it. The public of Fiji has an interest in the serious offences with which the applicant is being charged and determined and the only appropriate remedy is to continue with the trial.
   
10. Under the head of abuse of process, FICAC submitted that even if the 20 year period is taken into account, the accused has failed to establish how a fair trial is not possible.
    
11. In addition to opposing the grounds FICAC raised two very strong grounds on why this application should be dismissed. The first being that of the application being made too late in the day and the second being the failure by the defence to disclose:-
    

(a) His defence.

FICAC says that in order for the Court to critically assess the aspect of prejudice and how the missing evidence will affect the defence, it needs to be told of the defence. Although the defence is not obliged to reveal its defence before the trial, the application for stay necessitates this disclosure, otherwise the court is left to speculate on the aspect of prejudice vis a vis the missing evidence.

(b) Evidence of missing witnesses

FICAC says that once again the Court is left to speculate what the missing witnesses would have said that would be material to the defence case and that unavailability of it is unfavourable to the accused. It is also submitted that there is no evidence that certain notes and documents made and kept by Mr. Cupit was available.

The prosecution states that the counsel for accused had stated that they have two witnesses who were going to testify on what occurred at the Board meetings so that in itself is sufficient to negate the argument on missing witnesses and documents.

(c) Failure to indicate whether the accused has made attempts to obtain evidence from other witnesses

FICAC submits that the meeting minutes of FHL indicate that a host of people were present. There is no evidence that the applicant has made attempts to locate those other witnesses to assist in his defence.

(d) Specifics of the documents missing or unavailable from the passage of time and how it is material to the defence

FICAC submits there are host of documents that have been disclosed to defence but they have chosen not to inspect. The accused has also not identified the exact documents missing due to the delay.

12. Finally, FICAC submits that there is no basis on which a stay is justified.
    

The Law

1. In R v Derby Crown Court, exp Brooks [1984] 80 Cr. App. R. 164, Sir Roger Ormrod said:

"The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of processes if either: (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the prosecution of or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused or to genuine difficulty in effecting service".

2. The inherent power to stay criminal proceedings to prevent abuse of process has long been recognized in common Law. But it should only be employed in exceptional circumstances (State v Waisale Rokotuiwai HAC 009 of 1995).

3. In case of Director of Public Prosecutions v Jackaran Tokai and others (Trinidad and Tobago) [1996] (12th June 1996) Privy Council Appeal No.53 of 1995 (Judgment delivered on 12th June, 1996).

Their Lordships said:

"However, we remind ourselves of the principles outlined earlier in this judgment and the observation of Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions [1964] A.C.1254, 1304, that:

'generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it'.

Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J. in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 C.L.R. 23.

In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a Permanent Stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict."

The Analysis

13. I will first deal with the aspect of delay in making this application. The charges were laid in 2008. Since then and until the trial started, there was no indication of a stay application being made. At all times the accused either indicated that he wants a counsel 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.
    
14. The application for stay is a recent invention and the premise on which it is made recently also indicate, which as discussed herein, are baseless.
    
15. As the many case authorities suggest, I will briefly look at the pre and post charge delay. There is indeed considerable pre charge delay. However, there is no evidence of malice or intent to persecute on the part of the prosecution in bringing the charges late but on the contrary the accused has to show the element of prejudice. He says that his witnesses and documents which are material to his defence are missing. I will discuss this later.
    
16. Post charge delay cannot be related to manipulation or misconduct of prosecution. Adjournments in this case were truly and well justified for one reason or the other and the accused also delayed in finding a counsel for himself which caused delay of almost one year.
    
17. On the aspect of missing witnesses, the court will have to assess the evidence that has survived the passage of time and that which has been lost. The FHL's Secretary has given evidence on what occurred at board meetings and submitted the minutes of the meetings of the Board. I cannot say what the missing witnesses would have said apart from what is contained in the minutes and whether that would have assisted the defence case. The missing witnesses Mr. Cupit, J. N. Kamikamica and Lt Col Navunisaravi had been present at the board meeting of FHL held on 27th December 1991 when the board allotted DPCS 180000' A' class shares.(P. Exhibit 12A). However Mr. Kamikamica and Lt Col Navunisaravi were both absent from the board meetings held on 28th February 1992 and on 29th May 1992 when the board allotted Mavana Investments Ltd. 200000 shares(P. Exhibit 15) and when the board allotted Q-10 Investments Ltd. 200000 shares and Cicia Plantation Co-op Society Ltd 220000 shares (P. Exhibit 22) respectively. Therefore these two witnesses could not have spoken as to what happened at the board meetings which they were absent, other than what was recorded in the board minutes which are produced in evidence.
    
18. If the accused so wishes, he can give evidence on whether he declared his interest and which witnesses were present and now are not available who could have assisted his case. It is then for assessors to decide the question of fact.
    
19. The fact that a witness is dead or missing cannot lead to stay of all prosecutions and if such was the case, so many cases in this country could not be successfully tried.
    
20. On the aspect of missing documentary evidence being notes by Mr. Cupit, there is no evidence so far of such notes having existed. Further there was never any request by the defence from the prosecution to disclose those documents. Other documents on allotment of shares should exist in the Companies Registry as deposed by Mr. Abhi Ram, being the acting registrar of the Companies Office, which evidence is uncontested.
    
21. In the circumstances I find that the applicant has failed to show the court that he could not be tried fairly.
    
22. Hence the application for permanent stay of proceedings is refused.
    

P Fernando
Judge