By Samisoni Pareti
A defective charge was the main reason Fiji’s main anti-corruption body lost its appeal against a lower court’s decision a fortnight ago to acquit Opposition party leader Sitiveni Rabuka, says Chief Justice of Fiji, Mr Justice Anthony Gates.
And although Chief Justice Gates was critical of the “quality” of the evidence of the Supervisor of Elections Mr Mohammed Saneem in the appeal hearing, he said the Fiji Independence Commission Against Corruption’s (FICAC) appeal had to fail and must be dismissed due to the “duplicity of the charges.” This duplicity was fatal to the prosecution’s case, the judge ruled.
Mr Rabuka was charged with providing false declaration of assets, income and liabilities contrary to section 24 (1A) and 24(5) of the Political Parties (Registration, Conduct, Funding and Disclosures) Act. Section 24(5) states that “any person who fails to comply with the requirements of subsections (1), (1A), (1B) or (2), or provides any information that is false, commits an offence and shall be liable upon conviction to a fine not exceeding $50,000 or to a term of imprisonment not exceeding 10 years or to both.”
“In the charge as drafted both limbs of section 24(5) are included,” wrote Chief Justice Gates. “It was no surprise therefore that leading defence counsel should protest about its duplicity. Two offences have been merged into one charge, and as can be seen with significantly two different elements of proof. One is strict and the other requires proof of knowledge of the falsity of the information.
“These are not alternative ways of committing the same offence, which would be permissible. These are discrete offences, one more serious than the other.
“It is an essential of criminal law and procedure for an accused person to be informed of the charge against him or her. There must be no confusion in the charge.”
On the evidence of the Supervisor of Elections Mr Mohammed Saneem, Judge Gates agreed with the lawyers of FICAC that the magistrate was wrong in ruling that Mr Saneem’s evidence was heresy and inadmissible.
Chief Justice Gates however declared that Mr Saneem’s failure as the official Registrar of Political Parties to provide “supporting evidence, documentary or otherwise,” made the “quality of evidence” low. “It is hardly surprising the magistrate reached his conclusion that SODELPA had not been proved beyond reasonable doubt to be a registered political party, nor Mr Rabuka an office holder required to make the financial declaration.” “The Registrar did not testify – i) as to the date when he determined that SODELPA was accepted for registration, ii) that SODELPA was still on the register on 29th December 2017 (the date in the charge alleging the non-compliance or the provision of information that was false), iii) and that SODELPA remained on the register at the time of his giving evidence (this last was not strictly relevant to the charge).”
FICAC in appealing the acquittal of Mr Rabuka by the Suva Magistrates Court on 26 October had filed a total of 15 grounds, of which Chief Justice Gates summarised to eight. He upheld two of these, the misapplication by the magistrate on Mr Rabuka of section 27(4) and that the ignorance of the law is no valid defence.
The court heard that Mr Rabuka had compiled and submitted his financial disclosures on his own and had not sought any outside help.
Chief Justice Gates did admonish FICAC investigators on the way they mishandled the video interview Mr Rabuka had voluntarily agreed to.
“The interview for FICAC left many answers unprobed or unclarified. Such interviews should always be conducted on the basis that reliance may have to made solely on that procedure.
“The Accused submitted himself voluntarily to being questioned on the reasons for his conduct. He need not have said anything. He did.
“But further clarifications would have been needed to establish proof beyond reasonable doubt of wrongdoing within the charge.”
Mr Justice Gates also defended the need to have a speedy appeal of the case in his 36-page judgement and ordered FICAC to pay F$4,000 in costs to Mr Rabuka.