Fiji Independent Commission Against Corruption v Qarase - Ruling 2 [2012] FJHC 1241; HAC027.2009 (19 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 027 of 2009

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: 17th July 2012

Date of Ruling: 19th July 2012

RULING ON NO CASE TO ANSWER

1. The accused is charged with 6 counts of "Abuse of Office" contrary to section 111 of the Penal Code Cap 17 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.
   
2. The Defence applies for a no case to answer after close of the case for the prosecution. The application is made in terms of section 231 (1) of the Criminal Procedure Decree 2009.
   
3. Section 231 (1) of the Criminal Procedure Decree 2009 provides:
   

"When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence."

Test for no case to answer.

4. Section 231 (1) of the Criminal Procedure Decree 2009 is identical to the now repealed Criminal Procedure Code section 293 (1)
   
5. The test to be applied to an application for no case to answer is that, there must be some relevant and admissible evidence, direct or circumstantial, touching on all elements of the offence. The credibility, reliability and weight of the evidence are matters for the assessors. (Sisa Kalisoqo v State Criminal Appeal No. 52 of 1984, State v. Mosese Tuisawau Criminal Appeal No. 14 of 1990).
   
6. In State v George Shiu Raj & Shashi Shalendra Pal, Criminal Appeal No. AAU0081 of 2005S, 1 July 2006, the Court of Appeal said;
   

"While there may be extreme cases where evidence could be so classed for example if it is arrant nonsense, or manifestly contrary to reason, and therefore warranting the application of section 293 (1), such a qualification cannot be used to extend the enquiry into an overall assessment of reliability or credibility."

7. The elements of the offence of "Abuse of Office" are as follows:
   
   • (i) Accused was employed in the public service;
     
   • (ii) He did an arbitrary act;
     
   • (iii) He acted in Abuse of Authority of his office;
     
   • (iv) The act was prejudicial to the rights of another.
     
8. I have carefully considered the evidence adduced by the prosecution and submissions made by counsel for the Defence and the Prosecution.
   
9. The first element "The accused was employed in public service" is also in dispute.
   
10. Section 4 of the Penal Code provides the definition of "person employed in public service",
    

"person employed in the public service" means any person holding any of the following offices or performing the duty hereof, whether as a deputy or otherwise, namely –

(i) ...

(ii) Any office to which a person is appointed or nominated under the provisions of any Act or by election; or

(iii) ...

11. It is an agreed fact that the accused was appointed as financial advisor to Fijian Affairs Board (FAB) on 8th March 1979 pursuant to the Fijian Affairs Act and the Fijian Affairs Regulations and was the financial advisor of the said board at all material times relevant to the charges of this case (Agreed fact No. 2)
    
12. On this agreed fact No. 2 itself, in terms of the wide definition provided in the Penal Code (Limb ii mentioned above) it is evident that the accused was a person employed in the public service at all material times to the charges in this case.
    
13. It is also agreed that the accused was appointed as a director Fijian Holdings Ltd (FHL) on 26/01/1989 and was a director of the said company at all material times relevant to the information of this case. (Agreed fact No. 6) PW1 and PW3 both testified that the accused was the financial advisor of the Great Council of Chiefs (GCC).
    
14. The contention of the defence that in terms of the information the accused has to be employed in all 3 institutions FHL, FAB and GCC to be a person employed in public service is untenable. However it is not for the judge to decide on the reliability of the evidence of PW1 and PW3 on the above at this stage. Therefore the prosecution has led evidence to show that the accused was employed in the public service.
    
15. The element that the accused was employed in the public service is common to all 9 counts of the information.
    
16. The 2nd and the 3rd elements of the offence of Abuse of office are that "He did an arbitrary act" and the "act was in abuse of authority of his office".
    
17. Arbitrary act is defined in various cases as an unreasonable act, a despotic act. "Arbitrary" as defined in Shorter Oxford English Dictionary is "Dependent upon will or pleasure, discretionary. The word "arbitrary" indicated nothing more than the exercise of one's own free will..." (Tomasi Kubunavanua v State Criminal Appeal No. 8 (B) of 1992. It is an act of his own choice.
    
18. In respect of counts No. 1, 3 and 5 it is agreed upon the agreed facts that the accused applied for shares of FHL on behalf of Q-Ten Investment Ltd (Q-Ten), Cicia Plantation Co-operative Society (CPCS), Mavana Investments Ltd (Mavana) respectively. (Agreed facts 22, 16, 19).
    
19. In respects of counts No. 2, 4 and 6 it is agreed upon the agreed facts that the Board of Directors of FHL approved the allotment of shares to Q-Ten, CPCS and Mavana respectively. (Agreed facts No. 23, 18, 20)
    
20. In respect of counts No. 2 and 4 when the said allotment of shares were approved, accused had been present at the relevant board meetings and it is not on record in the minutes of the meetings that he dissented or abstained from the vote of approval. The relevant board minutes of the meetings were produced in evidence without objection.
    
21. As submitted by the prosecution it is evident that a total number of 4, 647,934 Class A shares have been allotted as at 30/06/1992 and out of which a total of 800000 shares had been allotted to Q-Ten, CPCS and Mavana. (Tab 24, Exhibit 24 of the agreed bundle of documents)
    
22. Further it was evident that by mid May 1992 the FHL was almost reaching the maximum number of share holders and that FHL had suspended any applications with regard to acquisition of shares of FHL. This evidence was given by PW2 Mr. Sitiveni Weleilakeba, referring to the letters P17 and P18.
    
23. On "Abuse of Office" the Fiji Court of Appeal in case of Mahendra Motibhai Patel v FICAC Criminal Appeal No. AAU0039 of 2011 at para 16 said;
    

"...We are, in my view concerned however with "other instances of abuse of office". Just as their Lordship's in Beniamino Naiveli laid down guidance based on R v. Dytham [1979] 3 All ER and R v. Llewellyn Jones [1967] 51 Cr. App. R. 4 this court can derive assistance and guidance from later cases which are concerned with giving government contracts to friends and relations, corporate or individual and which comment authoritatively on this well-known strand of "abuse of office". This strand is often referred to as "misconduct by partiality."

24. In this case it is evident that the accused made the application himself for the allotment of FHL shares to the companies Q-Ten, CPCS and Mavana while being a director of the FHL board. It is also evident that there is nothing in the minutes of the board meetings to the effect that he declared his interest in the said companies. Further the company Secretary PW2 in his evidence said that if the interest was declared it would have reflected in the minutes. PW3 in his evidence said, as Minister of Fijian Affairs that he did not find any record of a declaration by Mr. Qarase of an interest in Q-Ten, CPCS or Mavana.
    
25. There is also evidence led by the prosecution of the interests the accused had on those 3 companies.
    
26. Therefore I find that there is some evidence led by the prosecution touching the elements of an arbitrary act and that the act was in abuse of his authority of his office.
    
27. The last element in the offence of "Abuse of Office" is that "the act was prejudicial to the rights of another".
    
28. Defence Counsel submitted that there was no evidence led on this element.
    
29. PW2 in his evidence said that the purpose of increasing the shares of FHL from 5 million to 20 million was that they almost reached 5 million which was the authorized capital. He said that at that time there was a strong demand for FHL Class A shares, and that they did not have enough shares for all the people who wanted to have them.
    
30. It is for the assessors to determine by necessary inferences from the facts led in evidence and not for the judge at this stage.
    
31. On the above premise I find that accused has a case to answer on charges in counts No. 1 – 6.
    
32. The offence of "Discharge of duty with respect of property in which he has a private interest". Counts No. 7, 8, 9.
    
33. The elements of the offence are:
    
    1. The accused was employed in the public service.
       
    2. By virtue of his employment he was charged with administration duties respecting property of a special character.
       
    3. He acquired or was holding, directly or indirectly, a private interest in such property.
       
    4. He knowingly discharged his administration duties with respect to such property.
       

The evidence on the 1st element I have already dealt with.

34. As regards the 2nd element, defence counsel submitted that as a Director FHL the accused would carry out in that capacity, the ordinary duties of a Director of FHL and that the evidence did not establish that, in his role as FAB Financial Advisor accused was carrying out any administrative duties with respect to FHL's business or shares.
    
35. It is an agreed fact that upon the creation of Class B shares, the authority of the accused's directorship in FHL was provided through the appointment of the Minister of Fijian Affairs to represent Class B shares pursuant to FHL's Articles of Association. (Agreed fact No. 8) The purpose of the establishment of FHL was evident. (Agreed fact No. 4)
    
36. Therefore the prosecution has led some evidence to touch the 2nd element that the accused was charged with administration duties respecting property of a special character.
    
37. The 3rd element was discussed before.
    
38. The accused applied and acquired shares of FHL for Q-Ten, CPCS and Mavana. There is evidence led of his direct or indirect private interest in these 3 institutions.
    
39. 4th element is that he discharged his duties with respect to such property. It is evident that the accused attended and participated in the board meetings of FHL as a director where interim and final dividends were decided. (Agreed fact No. 36)
    
40. On the above, I find that there is some evidence led by the prosecution touching all the elements of offences in counts 7, 8 and 9.
    
41. Hence the accused has a case to answer on all the 9 counts in the information.
    

P Fernando
Judge