Bainimarama and Qiliho’s lawyer files no case to answer application

Former Prime Minister Voreqe Bainimarama and suspended Police Commissioner Sitiveni Qiliho's lawyer has filed a no case to answer application in the Suva Magistrates Court.

While making the submission, defence lawyer, Devanesh Sharma says there was no attempt to pin down if there was a conversation between Bainimarama and Qiliho where Bainimarama had suggested to Tuks to stay away from the investigation.

He asks if this is enough to satisfy that it was an attempt to pervert the course of justice.

Sharma says it is the duty of the prosecution to establish when the offence took place as Bainimarama and Qiliho’s liberty is at stake and they face 5 years jail terms.

He says it is not fatal to the case but is necessary.

Sharma says Acting Police Commissioner, Rusiate Tudravu made the assumption that according to him it was ordered.

Magistrate Seini Puamau says she is thinking to ignore what Tudravu assumed because he is not in the charge sheet.

Sharma further says while there is an admission but beyond that the only evidence is Qiliho’s statement.

Magistrate Puamau says apart from that one line where Bainimarama is quoted as saying ‘I suggested to Tuks to stay away from the investigation’, there is no evidence and she agrees with Sharma.

Sharma says the only evidence against Bainimarama is his own statement but it is merely a suggestion and asks if that is good enough to attempt to pervert the course of justice.

He says there is no evidence to show what context it was made in, who it was made to, where it was made and there is no knowledge of the context in which the conversation took place.

The defence lawyer says Bainimarama suggested and never told anyone to stay away from the investigation and where he says Tuks to stay away from the matter or let the police stay away.

He says the court cannot convict based on a one line statement.

Sharma further says Qiliho called the then Director CID Serupepeli Neiko and the investigating officer for the USP matter Reshmi Dass and this evidence is not disputed but they are saying he told them to stop the investigation but Qiliho said he had said to stop the investigation to give an update and there is no evidence whatsoever that Qiliho called to stop the investigation.

He says if we accept there was a directive to stop but Dass carried on with the investigation.

The defence lawyer says Tudravu, former Director of Intelligence, Biu Matavou, former CID Director Mesake Waqa and Director Economic Crime Rajesh Kumar should be charged because they have direct influence to close the file.

While responding to the submission, Acting DPP Ratu David Toganivalu says the statement was an admission of conduct and that is corroborated by Tudravu and the court would have to look at what was meant when the words were suggested.

The Magistrate then responded that there is no context and she does not know what was said before, after and where it was said. Toganivalu says the law allows her to infer.

Magistrate Puamau told the Acting DPP that they could have done some investigation of who, when, where, why, how and what context that statement was made in and that is what the court requires.

She says she is struggling to find the link between what was said and the whole chain of events.

Magistrate Puamau says if Toganivalu had said Tudravu was charged for perverting the course of justice, she would have understood but she does not have the same kind of context and it is not her job to create stories and inferences.

Toganivalu also says that Dass and Neiko received calls from Qiliho to stop the investigation.

Magistrate Puamau has given Toganivalu time until Friday to file a written response.

He will make an oral submission on Monday where Sharma will be given time to respond following which Magistrate Puamau will make a decision.

Bainimarama is charged with a count of attempt to pervert the course of justice while Qiliho is charged with a count of abuse of office.

It is alleged that Bainimarama sometime in July 2020 as the Prime Minister directed the Police Commissioner to stop the investigation into a police complaint, in the abuse of the authority of his office, which was an arbitrary act prejudicial to the rights of the University of the South Pacific which is the complainant.

It is alleged that Qiliho on the 15th of July, 2020 as the Police Commissioner directed the Director of the Criminal Investigations Department, Serupepeli Neiko and Inspector Reshmi Dass to stop investigations into the police complaint by the USP, in the abuse of the authority of his office, which was arbitrary act of prejudicial to the rights to USP.

Bainimarama and Qiliho are represented by R Patel Lawyers Devanesh Sharma and Gul Fatima while Acting Director of Public Prosecutions, Ratu David Toganivalu and Nimisha Shankar are representing the State.