Fiji Independent Commission Against Corruption v Qarase - Summing Up [2012] FJHC 1242; HAC027.2009 (30 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 027 of 2009

BETWEEN:

FIJI INDEPENDENT COMMISSION
AGAINST CORRUPTION
PROSECUTION

AND:

LAISENIA QARASE
ACCUSED PERSON

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

Date of Hearing: 5th, 6th, 9th, 10th, 11th, 12th, 13th, 17th, 19th,
20th, 23rd, 24th, 25th July 2012

Date of Summing Up: 30th July 2012

SUMMING UP

[1] Madam Assessor and Gentlemen Assessors,

It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

[2] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

[3] The Counsel for the Defence and Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and Prosecution Counsel. But it is a matter for you to decide which version of the facts to accept, or reject. However you may recall that the defence counsel when making her closing address mentioned about the consequences if convicted. Also she mentioned about the punishment the accused could have received under the companies act for non declaration of interest at a board meeting. You must ignore those matters and it should not be of your concern. It is your duty only to consider the evidence that has been presented in relation to the charges that have been leveled against the accused and apply the law as I explain to you.

[4] You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me, but I can tell you that they will carry great weight with me when I deliver my judgment.

[5] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.

[6] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.

[7] Your decisions must be solely and exclusively upon the evidence which you have heard in this court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this courtroom. You may have heard about this case through electronic media, may have seen articles in newspapers before and during the trial. You must disregard all what you heard outside this courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial.

[8] Your duty is to find the facts based on the evidence and apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

[9] You have the information before you.

[10] On Counts No. 1 to 6, the accused is charged with the offence of 'Abuse of Office'.

[11] Counts 1, 3 and 5 refers to application of shares by the accused on behalf of the three companies Q-Ten Investments Ltd,(Q-Ten), Cicia Plantation Co-operative Society Ltd. (CPCS), and Mavana Investments Ltd.(Mavana) respectively. Counts No. 2, 4 and 6 refers to facilitating of allotment of shares by accused to those companies.

[12] The offence of abuse of office is defined by the Penal Code. The definition of the section reads:

"Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanor.

If the act is done or directed to be done for purpose of gain, he is guilty of a felony,..."

[13] The offence of Abuse of Office has four elements that the prosecution must prove beyond reasonable doubt.

1. The accused was employed in the public service.
   
2. He did an arbitrary act.
   
3. He acted in abuse of the authority of his office; and
   
4. The act was prejudicial to the rights of another person in this case the Provincial and Tikina Councils, FAB and all other indigenous Fijian people.
   

[14] The 1st element of the offence that the accused was employed in public service is in dispute. All 9 counts allege that during the relevant period the accused was employed in public service as:

(a) Director of Fijian Holding Limited ("FHL");

(b) Financial Advisor of the Fijian Affairs Board ("FAB"); and

(c) Advisor to the Great Council of Chiefs ("GCC").

Section 4 of the Penal Code Cap 17 provides a wide definition to "person employed in the public service".

Any person holding any of the following offices or performing the duty hereof, whether as a deputy or otherwise, namely –

(i) any civil office including the office of President the power of appointing a person to which or of removing from which is vested in the State or in the President in a Minister or in any public Commission or Board; or

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

(iii) any civil office, the power of appointing to which or removing from which is vested in any person or persons holding an office of any kind included in either of paragraphs (i) or (ii); or

(iv) ...

[15] It is an agreed fact that upon the creation of 'B' Class 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. 9) Therefore it is an agreed fact that the appointment of the accused to the directorship of the FHL board was made by the Minister of Fijian Affairs. Further this appointment was made to represent the class B shares.

[16] It is evident that FAB held the class B shares. (Agreed documents P5 and P24) The Fijian Affairs Board is established in terms of the Fijian Affairs Act. FAB is a government entity.

[17] It is also an agreed fact that the accused was appointed as the Financial Advisor of the FAB on 8th March 1979 pursuant to the Fijian Affairs Act and the FAB regulations and that he was the Financial Advisor of the FAB at all material times relevant to the charges in this case. (Agreed fact No. 2)

[18] The great Council of Chiefs (GCC) is established in terms of the Fijian Affairs Act. Evidence is placed before you that the accused was the Financial Advisor to the GCC as well. PW 1 Meli Bainimarama said in evidence that the financial advisor to the FAB who is appointed by the Minister would provide financial advice to FAB and GCC on financial matters. PW3 Ratu Timoci Vesikula said that the accused was already the Financial Advisor to FAB and GCC when he became the Minister of Fijian Affairs in June 1992. P4 is a document agreed by both parties. It is a translation of P1 which is also an agreed document. It is a speech made by the accused as the Financial Adviser to GCC, to a gathering that included the President and the Prime Minister of Fiji during that time. (Agreed fact No. 13)

[19] P27 is a letter sent to the accused on 20.04 1999 by the Prime Minister and Minister for Fijian Affairs accepting the resignation as the Financial Advisor of FAB, which is an agreed document by the parties. If the accused resigns his office he was holding which he did by way of letter to the Prime Minister, it is perfectly plain that the relationship between the government and the accused was that of employer and employee. It was not an independent contract.

[20] When you apply the law as I explained to you to the evidence abovementioned placed before the court, you need to find whether the accused was employed in public service as defined in the Penal Code and mentioned in the charges in the information.

[21] The 2nd element is that the accused did an arbitrary act. Arbitrary act is an act which is dependent upon will or pleasure. Act based on mere opinion or preference. It's a discretionary act. Nothing more than the exercise of one's own free will. It is an act of his own choice, an act which is not guided by rules and regulations but by the whims of the accused.

[22] The 3rd element of the offence of Abuse of office is that the act must be in abuse of the authority of office. When someone abuses the authority of his office, he uses his position for some illegitimate agenda some reason which is not a proper reason and not according to the institutional procedure. He acts in bad faith, for an improper motive to harm someone or to give someone an advantage or favour. To decide what is an abuse of office you need to consider what motivated the accused to act the way he did. If he had some improper motive or acted in bad faith and used his position to achieve his motive, then this element is proven. In order to understand what the accused had in his mind, you need to look at all the evidence, in this case including the dates of applications for shares and sequence of events and draw your own conclusions and decide whether he acted in abuse of office or not.

[23] The last element is that the act of the accused must have prejudiced the rights of another. In all six counts (Counts no. 1-6) of abuse of office the prosecution alleges that the rights of Provincial and Tikina Councils, FAB and all other eligible indigenous Fijian people were prejudiced. So the question for you is whether the accused's actions prejudiced the rights of the said Provincial and Tikina Councils, FAB and other eligible indigenous Fijian people as alleged.

[24] Prosecution also alleges that the accused failed to disclose his interest of the said companies for the purpose of gain. Gain need not only be financial or personal. It can also be gain for others, friends, relatives or even political.

[25] On counts No. 7 to 9 the accused is charged with the offence of 'Discharge of Duty With respect To Property in Which He Has a Private Interest'.

[26] The offence of 'Discharge of Duty With respect To Property in Which He Has a Private Interest' is defined by the Penal Code.

[27] This offence has four elements that the prosecution must prove beyond reasonable doubt.

1. The accused was employed in the public service,
   
2. By virtue of his employment he was charged with an administrative duty respecting property of a special character,
   
3. He had a private interest in respect of such property, and
   
4. He discharged any such duty in respect of that property.
   

[28] The first element, 'Employed in the public service', I explained to you before.

[29] The second element, the prosecution alleges that the accused by virtue of him being employed in public service was charged with the administrative duty respecting the business of the property being of a special character namely the shares of FHL being held for the benefit of indigenous Fijian people and to accelerate and broaden Fijian participation in commercial and industrial sectors.

[30] The third element, the prosecution alleges that the accused had a private interest in those shares when allotted, as he had private interest in those companies Q-Ten investments limited, Cicia Plantation Co-op Society Limited and Mavana Investment Limited to which the shares were allotted.

[31] The fourth element, the prosecution alleges that the accused discharged an administrative duty in respect of those shares when he took part in allotting those shares to the said companies which he had private interest, being a board member and taking part in the relevant board meetings of FHL.

[32] You are required to make separate assessment of the evidence as it relates to each of the elements of the charges against the accused and the prosecution has to prove each of the elements in each count beyond reasonable doubt.

[33] You have the written agreed facts before you. You also have the agreed bundle of documents. In this case the prosecution and the defence have agreed on so many facts. They are not in dispute. Therefore you may consider those as led in evidence without dispute or challenge in Court.

The Evidence

The Prosecution case.

[34] The 1st witness for the Prosecution was Mr. Meli Bainimarama. He had been the Permanent Secretary for Fijian Affairs from 1991 – 1993 and from 1999 to 2008. He said that the Fijian Affairs Board (FAB) is established by the Fijian Affairs Act. Great Council of Chiefs (GCC) is also established under the same Act. Under the Regulation of the Fijian Affairs Board Regulations Minister for Fijian Affairs is empowered to appoint legal and Financial Advisors to the FAB on the recommendation of the Board. Financial Advisor would provide advice to the FAB and the GCC on financial matters.

[35] Accused was appointed Financial Advisor to FAB in March 1979. The witness said that he worked closely with the accused as he was the Permanent Secretary for Ministry of Fijian Affairs.

[36] He said FHL was established to provide funds to Fijians and enable Fijians to enter the commercial sector economy and to allow Fijians to own shares and invest. Government granted $20 million loan to FAB which in turn was invested in FHL. FAB became a share holder of FHL.

[37] As holders of shares, on behalf of the FAB Accused was appointed a Director FHL by the Minister of Fijian Affairs. (Referred to Agreed Facts No. 6 and 9)

[38] The corresponding letters of FHL, Ministry of Fijian Affairs and GCC on the decision for sale of FHL shares to Tikinas and to Private Fijian individuals, from the agreed bundle of documents marked as Exhibits P4, P5, P6, P7, P8 and FHL Board minutes of 30/09/92. (P26) were produced through the witness. The witness said that there was demand for the FHL shares amongst Fijians.

[39] In cross examination the witness said that FHL was a private company when it was incorporated. Further he said that he thinks FHL was a private company when the government loaned $20 million to FHL. He said that he thinks class B shares were exclusively reserved for the Provincial Councils. For his recollection private or individual companies were not allowed to purchase class B shares. Class B shares were confined to FAB and Provincial Councils.

[40] He said Chairman of the FAB does not control how the financial advisor does the job and nor the Minister controls. Prime Minister does not control the work of financial advisor, he said. Financial Advisor was not paid a pension and his contract does not include other benefits like insurance and holidays.

[41] In re-examination he said that he cannot actually answer whether Provincial Council's were holders of class 'A' shares because of the passage of time. He said that he was not a director of FHL but he was there as a proxy for FAB. He said that Mr. Qarase was Financial Advisor by appointment and that there was no formal contract.

[42] Prosecution called the witness Sitiveni Titoko Weleilakeba to give evidence next. In November 1987 he had joined FHL as company Secretary. In February 1992 he was appointed CEO of FHL. November 1997 to June 2006 he was Managing Director of FHL and also of Merchant Finance and Investment company which is a wholly owned subsidiary of FHL. From July 2006 – June 2008 he was Group Managing Director of FHL.

[43] When he was the company secretary FHL the accused had been a director. Accused was born in Mavana village in the province of Lau. Accused's wife is Leba Qarase.

[44] Accused was appointed a Director FHL as a result of him being adviser for FAB he said. Accused represented the share holding of FAB class B shares. FHL was incorporated in November 1984 to accelerate indigenous Fijian participation in commerce and industry in Fiji.

[45] As a private company at the beginning number of share holders in FHL had been limited to 50. At the beginning the share holders had been 14 provincial councils, the FAB, NLTB and Koula Trust.

[46] He explained as to how the board minutes are recorded. Draft minutes of the previous board meeting will be confirmed at the next board meeting. He said that a board member has the opportunity to make amendments with the minutes if there were any omissions or corrections.

[47] He said that a director has a duty to declare his interest or involvement in a matter to be discussed and decided upon by the board. The declaration must be made by the person who has got the vested interest. If a director was connected to or involved with a company, or his immediate family had vested interest in the matter to be discussed, the director has to make a declaration, he said. He said that there is a difference between declaration as a share holder and non disclosure if you are a director.

[48] If a director makes such declaration then the chairman asks him to leave the meeting room and would proceed to make a decision before he is recalled to continue with the meeting. That member would not be allowed to vote on the matter. If a declaration is made its recorded in the minutes. If a declaration is not made it is not recorded in the minutes. He said that in normal cases for FHL the decisions recorded in the minutes are normally unanimous. If a specific director asks the Chairman that the dissent be recorded, it would be recorded. However he had not come across a situation where a director requested the Chairman to have a dissent recorded in the minutes. If a director abstained from voting that would be recorded in the minutes.

[49] After the company was converted to a public in 1992 there had been two public share issues in 1993 and in 1995. On both occasions it was oversubscribed by 10 times, he said. Allotments were done in pro rata basis.

[50] When FHL was a private company number of shareholders were limited to 50. Authorized capital was 5 million. He explained the procedure as to how the shares were allotted on the discretion of the board when it was a private company.

[51] He said that by March 1991 the FHL company report 1990 has generated tremendous interest particularly at the Tikina level and also from the private Fijian individuals. Referring to P4 he said that the tremendous interest to purchase FHL shares came in two forms, phone calls and written interest continuously seeking concurrence of FHL to allow them to purchase shares of FHL. FHL received the required approval by letters P7 and P8 from the FAB and GCC for the widening of FHL shares to Tikina Councils, Wholly owned Fijian companies and Individual Fijians registered in VKB. The witness advised the board of that approval at the board meeting held on 12th November 1991 when Mr. Qarase was present.

[52] Witness gave evidence on the applications made by the accused for the allotment of shares of FHL and also on the board minutes in which the shares were allotted. Following were the evidence.

[53] On 20.11.1991 the accused on behalf of Cicia Plantations Ltd. (CPCS) applied for 180000 shares. Accused's address was given as C/- Fiji Development Bank, P. O. Box 104, Suva. (P11) The application was approved and shares were allotted to CPCS on 27.12.1991 at the board meeting where the accused was present as a director. (P12A) No record of any director declaring any interest in the subject matter. Board also resolved the payment of dividend for the year 1992.

[54] On 07.02.1992 the accused applied on behalf of Mavana Investments Ltd. (Mavana) for 200000 shares of FHL (P14). On 28.02.1992 the FHL board approved the allotment of the said shares to Mavana (P15). Accused was present at the meeting as a director. The board approved payment of interim dividend to be paid to 'A' class share holders as at 31.12 1991. At the same meeting Stiks investments Ltd (Stik) was allotted 150000 shares. At the said meeting the witness Sitiveni Weleilakeba as CEO has declared his direct financial interest in Stiks Investments and it is on record of the board minutes (P15).

[55] On 23.04 1992 the accused on behalf of CPCS applied for additional 220000 shares from FHL (P16). At the board meeting held on 29. 05 1992 the FHL board resolved to approve that the nominal capital under class "A" shares be increased from 5 million to 20 million. At the same meeting CPCS was allotted 220000 shares and the accused was present at the meeting (P22). The witness said that there was a strong demand for the shares and that was the purpose of increasing share capital to 20 million. At the same meeting Q-Ten investments Ltd (Q-Ten) was also allotted 200000 shares. Witness confirmed that there is no record of any declaration of interest by any board member of FHL and if any declaration was made he would have recorded it. This allotment of shares to Q-Ten and CPCS is agreed by the parties as per agreed fact No. 23.

[56] Giving evidence referring to P17, P18, P19, and P20 the correspondence between FHL and Nakiti Investments Ltd and Anare Matahau and Associates Ltd, the witness said that the company was almost reaching the maximum number of share holding of 50 and because of this they suspended the applications for shares of FHL until the time the company is converted to a public company. By 11th May 1992 the company had reached the maximum of 50 members.

[57] Referring to the FHL share register P24, he said that as at 30.06.1992 CPCS was the 2nd largest shareholder for 'A' class shares holding 400000 shares, the largest shareholder being NLTB holding 500000 shares. Third largest share holder had been Ratu Sir KKT Mara Edn Trust Fund holding 300000 shares and the fourth largest had been Mavana and Q-Ten and Taoi Investments holding 200000 shares each.

[58] At the 7th Annual General Meeting of FHL held on 30.09.1992 the accused had been present as a board member and also he had been the proxy representative of Mavana and Q-Ten who was appointed to vote (P26). Final dividend for the year ended 30th June 1992 was declared at the meeting. It was also resolved that a new substitution memorandum of articles of the company be adopted. Thereafter FHL was a public company and the authorized capital of 'A' class shares increased from 5million to 20 million, he said. He said that the company became a public company on 27th October 1992. There was a reasonably high demand for shares.

[59] Referring exhibits P59, P60 and P61 the witness gave evidence on the dividend payments to Mavana, CPCS and Q-Ten on 1st October 1992 and on 1st April 1993. It is an agreed fact (Agreed fact no. 36) that the accused attended and participated at board meetings of FHL at which board directors decided upon payments of dividends to classes A and B shares at all material times relevant to the charges of this case. Witness gave evidence on the dividends paid to Mavana, CPCS and Q-Ten (P54, P56, P57, P58, P48A, P48B, P49A, P49B, P50, P51A, P51B, P52 and P53).

[60] In cross examination answering the questions as to why he did not record the names of board members who voted or abstained, he said that that was the way the Chairman Mr. Cupit wanted the minutes to be recorded. Just the resolution and whether it was unanimously agreed. Draft minutes are provided first to the Chairman for correction before circulated to the board members in the next meeting. He said that if there is any board of directors who wishes to dissent he or she has the right to ask the chairman that his views be recorded as part of the minutes. He further said that if there are matters to be corrected in the minutes, the director who wishes to correct those minutes is given an opportunity in the following board meeting.

[61] He said that as the relevant share applications were signed by Mr. Qarase, other members would know Mr. Qarase's involvement in those companies. On analysis and tabulation of applications he said that they check the shareholding and check to make sure that they are Fijians registered in 'Vola Ni Kawa Bula'. The board is given a check list of those items before it is taken to the board for consideration. He said that the other directors received the analysis and tabulation showing Mr. Qarase's involvement as a director but not as a shareholder. The normal practice is when applications are made for share allotments, documents to the application, the memorandum and article are taken to the board for the board to consider and view in case they want to check the memorandum. These documents go with the board papers and circulated to the board members.

[62] The application and share allotment to Q-Ten was made when FHL was a private company. It was the same for Mavana and Cicia as well. In a private company allotment of shares is at the discretion of the board.

[63] Giving evidence about the $20 million loan from the government he said that the loan was provided to FAB as an interest free loan for 20 years. Directors of B class shares are to be nominated by the minister with the consultation with the minister of Finance and the Prime Minister. The fund allowed the FAB to acquire 20 million B class shares in FHL, so FHL is not a party to the loan.

[64] Directors' fees were paid to the directors FHL, but before the conversion he said that he could not recall. For any directors' fees withholding tax were deducted.

[65] Articles of association of FHL at that time did not disallow employees and directors purchasing shares from the company. He said that the only other director who applied and got allotted shareholding in the company was Mr. Joe Mar.

[66] In 1988 FAB has increased its share holding in FHL. That time the board included Minister for Finance Mr. Kamikamica, Minister for Fijian affairs Mr. Navunisaravi, Minister for Commerce and Industry Mr. Vunibobo and Governor of the Reserve Bank Of Fiji Mr. Ratu Jone Kubuabola. They were well qualified and very experienced, he said. Mr. Qarase was one of the board members. Board decisions are mostly unanimous, he said. As a director Mr. Qarase has a right to dissent any decision made by the board if he so wishes to do so.

[67] Answering further to the questions by the defence counsel he said that if the minutes did not record a verbal declaration made by a director, the director who made the declaration can correct those minutes at the following meeting. He said further that if the declaration is made it should be in the minutes and if it was not made it is not recorded in the minutes.

[68] He said that he cannot recall Mr. Lyle Cupit tell Mr. Qarase not to speak and vote at discussions which involved Q-Ten Investments, Cicia Plantations Ltd or Mavana investments Ltd. At the time of making the applications for shares Mr. Qarase was not a shareholder of Cicia Plantations, or Q-Ten, or of Mavana, he said.

[69] The witness had shares at Stiks Investment and at APTA Pacific Ltd. He said that he made the declaration when he applied on behalf of Stiks Investment for FHL shares.

[70] Referring to the dividend payments to Cicia, Q-Ten and Mavana he said that Mr. Qarase did not have shares in those companies.

[71] He said referring to the AGM minutes dated 03.11.1993, (P64), that the allotment of the shares to date was ratified which included shares allotted to Cicia, Q-Ten, Mavana and Stiks investments.

[72] Annual reports of the FHL for the financial years ending 1993 and 1996 were produced in evidence marked as D1 and D2 respectively. Certain paragraphs from the chairman's report were read before you. He said that he did not have any power to object to the chairman's report. Madam and gentlemen assessors, the contents of the chairman's report had been made by the chairman Mr. Cupit who is now dead. The contents of the report, therefore becomes hearsay evidence as the author is not available before the court to give evidence. In the circumstances you may accept that the chairman made such a report, but it cannot be considered to establish the truthfulness of the contents of the report as the maker of the report is not before court as a witness.

[73] Witness said that the dividends checks are signed only after the board approval. In P63 when the board unanimously declared an interim dividend on 'A' class shareholders as at 31st December 1993 at the board meeting held on 10.03.1994 the accused had been absent. He said that the articles at that time did not say that executives or directors cannot buy shares. Further he said that there was nothing in the articles to restrict a director or executive from participating in the board meetings that allotted shares to a company in which that director had private interest.

[74] He said that the opportunities at FHL were well known to the Fijian community. Opportunities for the soft loan available by FDB also were well known to the Fijian community at that time, he said.

[75] He said that non Fijian Mr. Cupit was appointed Chairman of the very Fijian company because FHL sponsors wanted his extensive business skills and experience. The witness testified about Mr. Cupit's knowledge and experience. He said that other board members would listen to him as a senior member. He said that he agrees with the statement Mr. Cupit made in the annual reports.

[76] In re-examination he said that he did not come across a situation where a director in any discussion requested the chairman to have his dissent recorded in the minutes.

[77] He said that none of the letters in relation to applications, for instance Q-Ten or Mavana had any record or did not reveal any share holding of families.

[78] He said that the board had the discretion not to allot shares, if they believed it was contrary to the interest of the company.

[79] A typical of a summary that the board secretary prepares for the board in relation to applicants for allotment of shares was produced in court marked P66. The witness said that the summary in page 155 of P 66 is similar to the summaries he prepared in 1991 and in 1992 for the applicants for allotment of shares. On the columns "name of the applicant', 'requirement status', 'class', 'amount', 'total', he said it was similar in 1991 and 1992. On the column 'cumulative total', he said it was not similar in 1991 as this was a public issue the number of applications they expect more. He said the difference in this summary is this was a public issue and in 1991 and 1992 there were only few. But information will be essentially the same, he said. The witness said that normally articles and memorandum for those companies are quite bulky and they would also be available for inspection by board members if they so wish. He explained the summary to you.

[80] Referring to documents P9, P11 and the agreed fact 15 the witness said that the application for shares by Cicia (P11) came within about the same month as the approvals of GCC and FAB. Application of Mavana came about 3 months later.

[81] He said that the purpose of FHL was to be for the benefit of all Fijians regardless of class.

[82] He again said that he declared his interests in Stiks Investment and it is recorded. (P15). That was before the board decision to allot shares to Stiks. He had not taken part in the discussion.

[83] Referring to agreed fact No. 28, he said that since 1974 Leba Qarase was a shareholder of Mavana and was a shareholder of Mavana at all times material to this case. Accused acquired shares of Mavana on or about 11th August 1992. Witness said that the accused was financial advisor to Cicia and was a director of Q-Ten.

[84] Answering further questions by the defence counsel on P66, the witness said that in both cases public and private companies the summary would include the memorandum and articles of association. From memorandum and articles, the information on shareholders and on directors can be extracted, he said.

[85] The next witness for the prosecution was Ratu Timoci Vesikula. From June 1992 to October 1993 he had been the Minister for Fijian Affairs and Regional Development. He also held the post of Deputy Prime Minister. He was also a member of GCC. He explained to you about the GCC, its role, and its purpose. The GCC is established under the Fijian Affairs Act. He also gave evidence as to how FHL was established.

[86] He said that when he became the Minister of Fijian affairs Mr. Qarase was already the financial advisor to FAB and the GCC. Mr. Qarase was on the board of directors FHL.

[87] The witness said that the day he took the office of Minister for Fijian Affairs, when he walked into his office for the first time, he had noticed one folder on the table. There had been about 30 individual files for individual companies that were allotted shares by FHL to be shareholders for 'A' class shares. When he added the amount in each file he had arrived at a figure close to $ 4 million. He said that he got scared because he found himself in a position where the Fijian own families were then owning about 80% of the class A shares and the provincial councils, NLTB, FAB and the Koula own only 20% shares, the figure exactly he can't recall.

[88] He said that he did not find anything in his file in the Ministry of Fijian Affairs, any record of a declaration by Mr. Qarase of an interest in Q-Ten, Mavana or CPCS. In the course of his time as the Minister he did not find any record of a declaration by Mr. Qarase of an interest in Q-Ten, Mavana or CPCS, in the files of the GCC.

[89] In cross examination on letter P4 he said that he could recall seeing the letter. On letters P6, P7, and P8, he said that he could not recall seeing the letters. On the minutes (P9) he said that he may have seen but cannot recall. His predecessor Lt. Col. Navunisaravi had been present at the meeting as Minister Fijian Affairs.

[90] He said that Mr. Qarase had a fiduciary duty to protect the interests of Fijian Affairs, GCC and other Fijian institutions under them. Minister is the ultimate protector, he said. Mr. Qarase had a greater responsibility as Financial Advisor to the board and the GCC.

[91] The next witness was Isireli Mokunitulevu. He was born in Tarukua village, island of Cicia in Lau Province. Presently he is the assistant principal of the Gospel High School in Suva.

[92] Presently he is the Chairman of the board of directors of CPCS. He was appointed Chairman in 2003. Prior to him Chairman was his father.

[93] In 1980's and 1990's Laisenia Qarase had been one of the advisors. He is an advisor until today. Mr. Qarase advises on the running of the CPCS and the investments to take. He said Mr. Qarase advised Cicia firstly in the running of Copra Plantations and then moving on in to the buying of shares. Cicia had properties in Namadi Heights and at Reki Street, Suva and Mr. Qarase had advised on buying of those properties. Those properties were later sold to buy shares of FHL on the advice of Mr. Qarase.

[94] Mr. Qarase has advised Cicia Plantations that they could obtain a loan from FDB to buy the shares. Mr. Qarase is from same province of Lau where island of Cicia is. Mr. Qarase is from Mavana village. Signatories to the bank account of Cicia Plantations are Mr. Qarase and the witness, he said.

[95] Cicia Plantations receives dividends from FHL shares until the present day. Cicia Plantations received $80,000 as dividends from FHL annually he said. He said Mr. Qarase as Financial Advisor and bank signatory of Cicia Plantations has not been paid for his services. He said Mr. Qarase received support from Cicia village in the election when he was a candidate. He said Mr. Qarase was given $2000 as financial support.

[96] In cross examination he said Mr. Qarase was not paid to manage the properties of Cicia Plantations. He was never paid as Trustee or Financial Advisor for last 40 years. He said that he thinks that if Ratu Mara as the head of Lau Province were to appoint a person from the province of Lau, it is impossible or culturally difficult to resist the appointment. He said Mr. Qarase carried out his duties as Financial Advisor based on the appointment by Ratu Mara. He said removing Mr. Qarase from being Financial Advisor of Cicia has never been an issue.

[97] The next witness was Adriu Ledua Ratumaiyale. He is from Naceva in Cicia in the province of Lau. People of Lau are close as a family, he said. They help each other and have traditions in respect of marriage.

[98] Mavana village is also in Lau Province and on a different island than Cicia. About the marriages between people of Mavana and Cicia he said he knew only 2 women from Cicia got married in Mavana. He said inter-relationship will only be restricted to those families got married. He knows about Cicia Plantations Co-operative Society Ltd. He was the Secretary of the Society appointed in January 1982 and held the position for 13 years. He said that Mr. Qarase attended the AGM of the society and he was told that Mr. Qarase was the advisor to the Co-operative Society. He said most of the years Mr. Qarase did not attend the meetings.

[99] Manager Mr. Eroni Vukicea had informed the members about the intention of the society to buy shares of FHL. Mr. Qarase had not been present at the meeting. He remembered Mr. Qarase informing members seeking leave to withdraw from his position as he will be standing in the elections. People of Cicia supported him, he said. He said Mr. Qarase had improved a lot of these people of Cicia from very little they had to what they have now. He said Cicia Plantations received dividends from the shares in FHL. The money is distributed to the shareholders in 5 villages.

[100] In cross examination, he said that, tokatoka's, mataqali's, yavusa's in Cicia are different to that of Mavana. Mavana is in a different island from Cicia. There are one or two islands between Cicia and Vanuabalavu where Mavana is. AGM's of Cicia Co-op was always held in the island and it is some distance to travel from Suva.

[101] The next witness was Epeli Ulunawainovo Racule. He is the Senior Operational Risk and Compliance Officer of the Westpac Banking Corporation.

[102] He identified the documents which were handed over to FICAC when FICAC officers executed a search warrant. From the original bank records located copies were made and handed over to FICAC. He identified the document P31 which included the specimen signatures of the Trustees of Cicia Plantations Co-operative Society Ltd. Mr. Laisenia Qarase is designated as a trustee and his specimen signature appears in P31. (Referred to Agreed fact No.26) He also identified documents P32 and P33.

[103] In cross examination he said that out of the forms, he cannot make out that Mr. Qarase had been removed from the signatories of Cicia Plantations Ltd.

[104] The next witness was Abhi Ram, Acting Registrar of Companies. He said that the company registry keeps documents that are required to be filed under the companies Act by companies in Fiji. He identified the documents obtained by the FICAC from the custody of the companies' registry. Exhibit 38 refers to Q-Ten investments Ltd. Return of allotments for the period December 12th 1990. Share allottees were Laisenia Qarase, Leba Qarase, Josefa Daucakacaka Qarase, Laisenia Bale Qarase Jnr, Malcom Qarase, Seini Laveti Qarase and Ilaisa Vulaono of the same address. (Referred to Agreed facts 29, 30 and 31)

[105] He identified and produced P39 on particulars of Directors and Secretaries and any changes there in. Exhibit 40 was identified and marked as P40 which is the annual return of Q-Ten Investment Ltd up to 18/05/92. Laisenia Qarase has transferred his 22541 shares to Josefa Daucakacaka Qarase on 15.12 91.

[106] P41 which contained particulars of Directors and Secretaries of Q-Ten was also identified. Laisenia Qarase had resigned from Q-Ten on 17.01.1992. (Agreed fact 32). Annual return of Q-Ten made up to 30/09/95 was also produced and marked as P45.

[107] In cross examination, witness said that Q-Ten investments have complied with the requirements of the companies' office to his knowledge of the files kept.

[108] Last witness for the Prosecution was Salimoni D. T. Karusi. He is the Senior Legal Officer for Fiji Development Bank.

[109] FDB was established under the Fiji Development Bank Act Cap 214. Fijian Government is the only shareholder of the bank. Bank comes under the umbrella of the Minister of Finance. Board of Directors is appointed by the Minister.

[110] Referring to P28 the board minutes dated 30/01/92 he said that on Paper 41 relating to Bakani Investments, Paper 42 relating to Mavana Investments, and Paper 40 relating to Stiks Investments. Chairman and Managing Director declared their interests as Directors of FHL. Chairman was Mr. Cupit and Managing Director was Mr. Laisenia Qarase.

[111] He gave evidence on the loans approved by the FDB to Q-Ten and CPCS

[112] He gave evidence on the bank documents on details of the loans granted to Q-Ten Investments (P43). The board paper prepared for the loan application by Q-Ten was produced as P44.One of the securities given for the loan was joint and several guarantee by Mr. and Mrs. Laisenia Qarase for total liability.

[113] In cross examination he said on the said loan applications, the board paper sets out all the names of directors and shareholders. He said to his knowledge, bank guidelines, laws or regulation does not prohibit Directors or Executives applying for loans from FDB.

[114] Referring to Exhibit P44 board paper on application for loan by Q-Ten, he said that the disclosure contained in that format would satisfy the requirement of section 201 of the companies Act.

[115] In re-examination he said that he is not aware of the exact terms of section 201 of the companies Act and that he cannot say with certainty that P44 constitutes compliance of section 201 of companies Act.

That was the evidence for the prosecution.

[116] Madam Assessor and gentlemen assessors,

At the end of the prosecution case, you heard me explain several options to the accused. He has these options because he does not have to prove anything. The accused opted to remain silent. That is his right to do so. You must not draw any adverse inferences from his choice to remain silent. He called witnesses to give evidence on his behalf. You must give careful consideration to their evidence as well.

Defence case

[117] 1st witness for Defence was Usaia Ratumaiwai Ravono. He is the Operational Officer Audit at Westpac Bank.

[118] Referring to the document in page 5 of P33 he said looking at the document it does not say that anything fraudulent occurred. From account of Cicia Plantations there had been a withdrawal of money to pay dividends to shareholders of Cicia.

[119] Next witness was Bai Tikoikoro. He is a shareholder of Cicia Plantations Ltd. He receives dividends in the village and Chairman Isireli Mokunitulevu brings cash to Cicia. Mr. Qarase is the Financial Advisor of Cicia and he is not a director, he said. Mr. Qarase did not receive any payment for his services as Financial Advisor.

[120] In cross examination he said the people of Cicia like Mr. Qarase for the services given by him. He receives $400 cash per year as dividends. He had retired from his job as a watchman of PWD in 2002 and could not remember how much he earned from that annually.

[121] Defence called the witness Navitalai Cakacaka to give evidence next. He is the General Manager Business Risk Services in Fiji Development Bank. (FDB)

[122] He gave evidence on the soft loan scheme for Fijians (VKB) commenced in 1975. The difference in this loan scheme to other schemes is the interest subsidy that was offered. Scheme financed purchase of shares of FHL as well. He said that it was in 1991, 1992 when it started to finance loans for shares in FHL. Lots of people were interested in buying shares in FHL.

[123] He said that he believe that these services were advertised in the radio. He said that when FHL became public the real rush was great.

[124] He said if they want to finance a project outside the normal policy that they would refer it to the board. If the staff of the bank is involved regardless of the amount of the loan it goes to the board he said.

[125] In cross examination he said Mr. Qarase was the Managing Director of the bank during that period 1991, 1992 and for some time before that. Minister of Finance appoints the board of Directors pursuant to the FDB Act. He said he believes that the greatest demand for shares of FHL when FHL became public because when it was a private company there was a limit on the number of shareholders and the number of shares allotted.

[126] He said if a director of the bank had a financial or personal interest in a matter considered by the board, then that interest should be disclosed. That's the bank policy and it would avoid conflict of interest, then the director who has interest will not take part in discussion or vote on the matter.

[127] Referring to P44 the board paper for application for loan by Q-Ten he said if Mrs. Qarase did not have any funds Mr. Qarase would have to pay 100% of the loan.

[128] In re-examination he said on P44 that the application sets out all of the subscribers and directors of the company and not concealed. As applied to any staff member this application of Q-Ten would go before the board.

[129] Next witness for the Defence was Naulumatua Josateki Koroi. He is a shareholder in Mavana Investments Ltd. He remembered some time in 1991 people of Mavana had a meeting about investments buying FHL shares. Mr. Qarase had been present at the meeting.

[130] He said that Mr. Qarase foresaw the difficulty in the people to raise funds to projects in the village and had given very good reasons to encourage investment in FHL. He said people of Mavana relied on government assistance. He receives annually $400 from his shares. He explained his relationship to Mr. Qarase on his maternal side and paternal side.

[131] In cross examination he said that he did not keep notes of the said meeting held in 1991. Mavana villagers raised 20% of the money required for shares and the balance was from a loan from FDB.

[132] Difficulties Mavana villagers faced in fundraising are faced with other villagers as well, he said.

[133] Referring to P69, the annual return of the company Mavana Investments up to 31/12/99 he said he was holding 3500 shares. Fourth largest shareholder is Leba Qarase. Mr. Qarase is a Director according to P69 and also the Secretary.

[134] Referring to P70 he said the Q-Ten Investment was a shareholder of Mavana holding 42000 shares and Q-Ten is owned by Qarase family. Although earlier he said that no companies owned shares in Mavana, he said, that he was not aware that Q-Ten was a limited liability company. Q-Ten was the 2nd largest shareholder of Mavana according to P70.

[135] Referring to P71 he gave evidence on the shareholders of Mavana.

[136] In re-examination he said that nobody forced him to give evidence and he said the truth as he knows. No special treatment was given to Mavana to get the loan from FDB. Debt to the bank had to be paid. Traditional leaders encourage their own people to make investments. There was no limitation to any villager from owning shares. If you had the money you could buy shares. He said that his shares were acquired in 1994. Meeting to encourage villagers was in 1991.

[137] Next witness was Josua Toa. He has bought shares of Mavana from his provident fund. He said Directors of Mavana were not paid for their services.

[138] In cross examination he said, he bought the shares in 1991 and Mr. Naulumatua Koroi also bought in 1991.

[139] He knows Mr. Qarase and that he is the Financial Advisor to Mavana. He recommended to villagers to buy shares in Mavana. Mr. Qarase had told him that Mavana would be investing in FHL and it would be a good investment.

[140] In re-examination he said part of the returns on the shares from FHL goes to development projects in the village.

[141] The last witness for the defence was Josaia Bainivanua Mar. He gave evidence on his qualifications and experience in various positions he held in Australia and Fiji.

[142] He had been a director FHL. He was appointed a Director FHL in 1989. Chairman had been Mr. Cupit. He said Mr. Cupit was a very well experienced businessman and a no nonsense type of a person, a strong leader. He had few clashes with Mr. Cupit as he did not allow too much participation from other directors.

[143] He said in board meetings they discuss matters regarding the board papers. Vote is normally in verbal and Chairman would say. 'those in favour say aye' and there will be a chores of ayes. Most of the times its unanimous and he tries to get consensus, he said.

[144] Mr. Cupit liked short minutes, board resolutions and decisions taken. It did not concern him because some minutes were very long and some are very short and precise. He said if they don't disagree those things are not normally minuted. Board meetings sometimes lasted an hour sometimes 2 hours.

[145] His responsibility would be to the shareholders, he said. He never tried to presume that he was there to try and be the custodian of Fijian business.

[146] Fijian Affairs Board was the major shareholder of FHL. In 1991 FHL was still a private company when he was a director. The company ran like any other private company, he said. The company would have Memorandum and Articles of Association. His duty was fundamental to shareholders. He had no special duty towards Provincial and Tikina councils or FAB or Fijians. Company was not running on traditional vanua principles.

[147] Referring to Memorandum and Articles of Association of FHL he said it does not require a director to carry fiduciary duty to indigenous Fijian people. He said he cannot recall whether Mr. Qarase was Financial Advisor to FAB during any board meeting.

[148] He said the capital of FHL was increased to get more Fijian Institutions to take up class 'A' shares. He said when the efforts were not successful the board decided to open it to Fijian companies. It was published in newspapers, media so on. He has suggested whether board members can invest. If directors buy shares others will invest.

[149] Referring to P15 board minutes he said that he would have declared his interest in his company Nabuabua. He admitted the board minute does not show that he declared his interest. He said that at the meeting he would have voted for others and not for Nabuabua.

[150] He said that he could not recall Mr. Qarase making a formal declaration of his involvement with the company Cicia but that does not say he did not. He said Mr. Qarase's involvement with Cicia is reasonably known that he helped his community as advisor or whatever.

[151] Referring to P12A he said it is not on record that Mr. Qarase declared his interest in Cicia. However that does not mean he did not.

[152] On P22, on Mavana Investments Ltd, he said the same process would have taken.

[153] On Mr. Qarase's association with Mavana he said that Mr. Qarase comes from the village Mavana and its common knowledge that he would be advising them on investments.

[154] Referring to P22 he said the same thing on Mr. Qarase's disclosure of interest in Q-Ten not being recorded in the minutes. He could not recall whether Mr. Qarase declared his interest.

[155] He said he has no doubt about Mr. Qarase's integrity then and now. He said he gives his evidence on his own free will.

[156] In cross examination he said directors of a private company have the power or duty in allocate shares and dividends. As a director it is important to be aware of the powers and duties.

[157] On P67 Memorandum and Articles of Association of FHL, members of the company are limited to 50. In terms of clause 77 Minister of Fijian Affairs has the power to appoint 6-9 directors. FAB was a single shareholder of Class B shares.

[158] In terms of Article 85 it is an important matter and it relates to disclosure of interest. He was aware of this article. He said that it is a general clause in most memorandums of association. Article 85A says that it is a duty of a director to declare the nature of his interest directly or indirectly in the matter at the meeting of the directors. Article 85 also says that it is the duty of the Secretary to record in the minutes of the meeting any declaration made or notices given by a director. Clause 85 has to be strictly followed he said.

[159] He also agreed that draft minutes are circulated to board members in advance of the next board meeting. It would give individual members to review them and if they saw omission or mistake to correct them at the next board meeting. Minutes are confirmed at the next board meeting. He said FHL paid attractive dividends in 1991 and 1992, 20% on Class A shares.

[160] He said that he recall the meeting that discussed the opening up of FHL but not the date. The overall tone was to try and open up the share holding to more people to get the take up of the 5 million shares. He said the exact words he could not remember but the gist of the discussion was that if they were to ensure that those shares be taken up that more participation of Fijians in commercial sector must be increased.

[161] Company secretary will be preparing a summary of applications. He confirmed that no record of declaration by Mr. Qarase in the board minutes P12A. He also agreed that there was an opportunity to correct any omission of a declaration. He agreed the same with application by Mavana as well. (P15)

[162] There was no record of declaration of interest by the witness for his company Nabuabua, he agreed. He said that it is a concern to him now in the context of the present situation. He said almost every member knew who were the shareholders and the directors by virtue of the fact that this is a small country. He said that it's a concern because he realizes a declaration of interest is an important matter that should have been recorded.

[163] He agreed that CEO has made his declaration of interest at the same meeting on Stiks Investment. (P15). He said he agrees that Article 85 refers to Directors. He said honestly he cannot think why he did not raise as to why his declaration was not recorded.

[164] He gave evidence on P22 where no declaration is recorded of Mr. Qarase's interest in Q-Ten. He also said that he was Chairman Fiji Electricity Authority, Chairman Fijian Investment Corporation, Chairman Fiji Audio Visual Commission, member Fijian Trust Fund Ltd, when Mr. Qarase was the Prime Minister.

[165] In re-examination he said that the Minister mentioned in clause 77 of the Articles are the Ministers generally and not only for Provincial and Tikina councils. They are overall for the country. He said although he was terminated by the government from all other boards when Mr. Qarase was not the Prime Minister, he remained a Director FHL.

That was the evidence for defence.

[166] Madam Assessor and Gentlemen assessors,

You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

Analysis.

Counts No. 1 to 6.

[167] 'Employed in the Public Service' is a common element to all 9 counts of the information. I have directed you on this element already.

[168] The prosecution says that the accused in abuse of authority of his office did an arbitrary act, in that he applied for the shares of FHL to be allotted to the three companies which he had interest without disclosing such interest. Counts No. 1, 3 and 5 relates to the said allegation. In regard to counts No. 2,4 and 6, the prosecution says that the accused in abuse of authority of his office did an arbitrary act, in that he facilitated the approval of shares to the companies he had interest and whilst doing that he failed to disclose his interest.

[169] The defence says that the accused was not in abuse of authority of his office and that no arbitrary act was done. Further defence says that the accused declared his interest, but it is not recorded in the minutes. Defence further says that the accused did not conceal anything and that all necessary information was available to the directors at the meeting.

[170] Prosecution has called evidence to show the interest the accused had and the connections the accused had with the three companies Q-Ten, CPCS, and Mavana. PW2 in his evidence said that if a declaration is not made at the board meeting it is not recorded in the minutes. At the next board meeting, before the minutes of the previous meeting are confirmed, again the member has the opportunity to get it corrected if the declaration he made is not recorded. It is evident that no such declaration of interest by the accused is recorded in the minutes.

[171] Defence witness Mr. Josaia Mar said that he cannot recall whether the accused declared his interest. However he said that it does not mean that he did not declare. Memorandum and Articles of Association of FHL was produced in court. Article 85 refers to disclosure of interest by directors. It is also the duty of the secretary to record such disclosure in the minutes. Although PW2 was not a director at that time as CEO he had disclosed and recorded his interest in Stiks investments Ltd. Therefore considering all the evidence placed, you decide whether the accused had disclosed his interest in the companies according to the law of the company.

[172] You may also consider the dates and the sequence of events when deciding whether the accused acted in bad faith and whether his motive was improper. It is evident that the secretary to the FHL board PW2 advised the board of the approval from FAB and GCC for the widening of FHL shares to Tikina Councils, wholly owned Fijian companies and individual Fijians registered in VKB on 12th November 1991 when accused was present. You may consider the sequence of events thereafter including the dates on which the accused made the applications and the dates on which approval was granted for allotment of shares to the three companies in issue.

[173] You decide whether he abused his authority of his office and whether he did an arbitrary act as I explained to you.

[174] Section 111 of the Penal Code also provides that where the arbitrary act is done or directed to be done for the purpose of gain, he is guilty of a felony. So you are required to consider whether the accused acted for gain. As I explained there are different types of gain, financial or political gain and gain can be obtained for others as well as personally. The defence says that the accused did not gain. Prosecution called witnesses to show his interest in the three companies which the shares were allotted. Considering all the evidence, you decide whether the accused acted for the purpose of gain.

[175] You have to consider the evidence on each count separately. Your opinion on each count of Abuse of Office counts No. 1- 6 must be either guilty or not guilty. On the counts 1- 6 if your opinions are guilty, you will each be asked also if in your opinions he abused his office for gain. Your answers will be either yes or no.

Counts No. 7- 9.

[176] The first element of the offence 'Employed in the Public Service', I gave you the directions before.

[177] Prosecution says that the accused was charged with an administrative duty respecting property of a special character. The defence says that the accused was a director of FHL and was not performing any administrative duties.

[178] The accused was appointed as a director FHL to represent the class B shares. (Agreed fact No 9) He was not appointed as an ordinary director, the prosecution says. FHL was incorporated to be the investment vehicle of the indigenous people in Fiji, and to accelerate and broaden their participation in commerce and industries. (Agreed fact No.4) Prosecution says that the letter P4 and its paper confirm the special character of the FHL property and business.

[179] Did the accused acquire any private interest? Evidence was placed before the court the interest the accused had in the three companies CPCS, Q-Ten and Mavana. The three companies acquired shares of FHL, which is not disputed.

[180] Did he discharge any such duty in respect of that property? It is also an agreed fact that the accused attended and participated at the board meetings of FHL at which the board of directors decided upon payments of dividends to class A and B shares at all material times relevant to the charges of this case. (Agreed fact 36)

[181] May I also direct you that it is not an element of the offence of 'Discharge of Duty with respect to property in which he has a private interest' that the accused should have acted dishonestly, fraudulently, or maliciously. It will be enough that he acted knowingly. Also he need not be shown to have profited directly or indirectly. It is also not an element of the offence that his act caused prejudice to the others.

[182] On the evidence placed before you and on applying the law as I explained to you, you decide whether the prosecution has proved all the elements of the charges beyond reasonable doubt. Your opinions on each count No. 7-9 must be either guilty or not guilty.

[183] You must use your commonsense when deciding on the facts.

[184] Prosecution has to prove all the elements in each offence beyond reasonable doubt to find the accused guilty. If you find that the prosecution has proved all the elements of the offences as I mentioned before beyond reasonable doubt, you may find the accused guilty. If you have any reasonable doubt on any of the elements you must find him not guilty. You must consider evidence on each count separately.

[185] Madam Assessor and Gentlemen Assessors,

This concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

Priyantha Fernando
Judge

30.07.2012