Acting Chief Justice Salesi Temo will be considering contempt of court proceedings against Magistrate Seini Puamau for not following the orders of the High Court in the USP case of former Prime Minister, Voreqe Bainimarama and suspended Police Commissioner, Sitiveni Qiliho.
He will consider the contempt matter at the end of the appeal filed by the Office of the Director of Public Prosecutions against the sentencing.
Acting Chief Justice Temo says the High Court has found Bainimarama and Qiliho guilty as charged and convicted them accordingly.
He says the Magistrate was supposed to follow that order and at the end of the appeal proceedings, the High Court will be considering whether to proceed with contempt of court proceedings against Magistrate Puamau for refusing to follow the High Court order.
Acting Chief Justice Temo says in the 15 years he has served in the Magistrate Courts in Fiji, no Magistrate has pronounced publicly or in their judgement when ordered by the High Court to reverse their decisions and they have followed the High Court decision whether they like it or not.
He says Magistrate Puamau will be accorded a right to counsel.
He says there is a system in Fiji where the Magistrates Court listens to the High Court whether or not they like the reasoning and after that, parties have the right to go to the Court of Appeal and to the Supreme Court from there.
Justice Temo says this is the system that has been tested.
He says there are various options open to him including activating High Court contempt proceedings and referring the matter to the police for refusing to follow lawful order of the High Court persuant to Section 202 of the Crimes Act.
He says when the Magistrate is ordered by the High Court to do certain matters, they have to follow.
Justice Temo says the evidence is his judgement and her sentencing remarks.
He says another option available to the High Court is to recommend to the President for the tribunal to remove her from the bench on the grounds of alleged misbehaviour.
Justice Temo says another option is for her to resign as a Magistrate because her behaviour has shown the ability to act as a Magistrate is called to question.
Acting Assistant DPP Laisani Tabuakoro says it is encouraging to see that the wheels of justice continue to turn and the Court has seen the red flags in the conduct of that particular Magistrate.
Bainimarama and Qiliho's lawyer Gul Fatima says she has no statements to make with respect to the sentencing delivered by the Magistrates Court.
Acting Chief Justice Temo says as far as he is concerned, Bainimarama and Qiliho have been found guilty as charged and looking at the Magistrate's sentencing, which is a matter considered on appeal, she has gone way off line.
Tabuakoro also moved that Bainimarama and Qiliho be remanded as they have been convicted by the High Court however, Acting Chief Justice Temo says the two have been attending court on time and there is no reason to remand them.
The appeal hearing will take place on May 2nd.
Bainimarama was granted absolute discharge in the case by Magistrate Seini Puamau while Qiliho has been fined $1,500 and this has to be paid within 30 days and failure to do that will result in 30 days imprisonment.
Magistrate Puamau had announced that both their convictions would not be registered.
Acting Director of Public Prosecutions, John Rabuku says the sentence delivered by Magistrate Puamau is unsatisfactory, is wrong both in fact and in law and does not reflect the considerations and tariff of cases or matters of similar nature.
He has filed four grounds of appeal.
These are that the sentence imposed by the Magistrate against Bainimarama and Qiliho are manifestly lenient and in breach of sentencing principles, case laws and the tariff set in other similar matters and offences.
They say Magistrate Puamau erred in law and in fact when she made a finding that there were no aggravating factors against both of them.
The Acting DPP says the Magistrate erred in law and in fact in considering irrelevant factors in sentencing and that Magistrate Puamau erred in law and in fact when she made a finding that there was no victim and that the offending was a technical breach by Bainimarama and Qiliho.
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