The Suva Magistrates Court will deliver its ruling this afternoon after former Deputy Prime Minister Professor Biman Prasad’s counsel, Richard Naidu, asked whether FICAC has two more pieces of undisclosed evidence, whether they have been disclosed to the defence and, if not, the reason for this.
FICAC lawyer Joseph Work says the three questions raised by the defence have been answered through the evidence of Investigating Officer Asenaca Niumataiwalu.
Work says Niumataiwalu confirmed there were two investigation files concerning Professor Prasad, FEP 41/24 and FEP 89/25 where FEP 89/25 resulted in the current proceedings.
He says FEP 41/24 had been closed, while statements from National Federation Party officials Dalip Kumar and Kamal Iyer remained in that file.
Work says Niumataiwalu did not include the two statements in the investigation file for FEP 89/25 that was handed to FICAC's Legal Department because she did not consider them relevant to that investigation.
He says Niumataiwalu had stated that Tupou Draunidalo's statement was sufficient in relation to the relevant documents and the elements of the offences being investigated.
He says Niumataiwalu also confirmed that she was only aware of what she had provided to FICAC's Legal Department and not what was subsequently disclosed to the defence.
However, Naidu says two of the three questions remain unanswered.
He says the Investigating Officer confirmed that FICAC holds the statements but could not say whether they had been disclosed to the defence.
Naidu says Niumataiwalu made it clear that disclosure to the defence was not the responsibility of the investigation team.
He says if the investigating officer could not answer whether the statements had been disclosed to the defence, she also could not answer why they had not been disclosed.
Naidu says the defence is not concerned about how documents are disclosed internally within FICAC but whether relevant material was disclosed by FICAC to the defence.
Naidu says the answers to the three questions are necessary for the defence to advise Professor Prasad on what steps to take next.
He says the options could include seeking disclosure of the documents, waiving the right to them and continuing with the trial, or potentially seeking a permanent stay of proceedings from the High Court if the non-disclosure is considered sufficiently material.
Naidu further told the court that it now appeared other statements may also exist and questioned what other potentially relevant material could be contained in the closed FEP 41/24 file.
He says the issue is therefore no longer limited to the two statements because the defence does not know what other material may exist that could be relevant or assist Prasad's defence.
Naidu says the matter raises broader questions about FICAC's handling of potentially relevant evidence and its disclosure obligations.
He submitted that a prosecutor has a duty to the court which overrides the prosecutor's interest in the case and also has a fundamental duty to disclose relevant material, including material that may assist an accused person.
Naidu says somebody within FICAC has to take responsibility for the prosecution's disclosure obligations and, if those obligations have been breached, it could have consequences for the entire trial.
He further submitted that if potentially helpful information was withheld internally because an investigator considered it unreliable or irrelevant, this raised concerns about FICAC's approach to material that could assist an accused person.
Naidu says the defence has been fundamentally disadvantaged regardless of where within FICAC responsibility for any non-disclosure may lie.
He says disclosure at this stage may not necessarily resolve the issue because the trial has already progressed on the basis of the material previously disclosed.
Naidu says pre-trial conferences had already taken place and facts and documents had been agreed on the basis of the disclosure available to the defence at the time.
He says the defence may have approached those matters differently if all relevant material had been disclosed earlier and its trial strategy may also have been affected.
Naidu says until the defence knows what other material exists and the reasons for any non-disclosure, it cannot properly advise Professor Prasad on what steps he should take next.
He says if the court wants the unanswered questions resolved, FICAC should produce a person who can answer whether the documents were disclosed to the defence and, if they were not, explain why.
Naidu also requested a transcript of the earlier evidence so the defence could review it and advise Professor Prasad on the next steps.
Work objected to parts of Naidu's submissions, saying the defence was moving beyond the three questions that led to the inquiry and into issues that should be dealt with through the appropriate legal process.
He says if the defence wants to raise issues relating to a stay of proceedings or alleged misconduct, those matters should be dealt with in the appropriate forum.
Work says questions about why the investigating officer used material from another investigation can be put to her during the trial when she gives evidence about her investigation.
He maintains the three questions have been answered and says the trial needs to progress.
Work also told the court that FICAC would endeavour to provide the defence with the transcript and could provide the audio recording in the interim.
The court also heard that the statements of Kumar and Iyer formed part of FEP 41/24 and were not part of the investigation file for the current proceedings.
When the Magistrate Yogesh Prasad asked whether the defence wanted the statements disclosed, Naidu said they would receive them but added that the concern was what other material may exist.
Naidu accepted Work's offer to provide the audio recording of the proceedings from yesterday.
The Magistrate will deliver the ruling this afternoon.
