Court to deliver ruling on Bainimarama and Qiliho's no case to answer application in September

Suva Magistrate Seini Puamau will deliver her ruling in the no case to answer application by former Prime Minister Voreqe Bainimarama and suspended Police Commissioner Sitiveni Qiliho on September 5th.

Bainimarama and Qiliho's lawyer Devanesh Sharma filed additional submissions which Acting Director of Public Prosecutions Ratu David Toganivalu responded to yesterday.

In his submission, Sharma says whatever Qiliho said while he was being questioned and what Director of the Criminal Investigations Department, Serupepeli Neiko and USP investigating Officer Rashmi Dass said cannot be used as it is hearsay.

He says the only evidence is that one line statement from the minutes of a National Security Council meeting where Bainimarama had suggested to Tuks to stay away from that investigation.

Sharma says Bainimarama had only suggested and if he had attempted to stop the investigation, logically he would be concerned that the investigation was still ongoing.

He says Acting Police Commissioner Rusiate Tudravu during the meeting had said that the investigation was ongoing and the Office of the DPP had given directives but Bainimarama said nothing at all after that.

Sharma says if there was any objection by Bainimarama, he would have said something.

He further says there is insufficient evidence and the onus is on the State to prove the case beyond reasonable doubt and the court should not speculate on its own to make a judgement but the Magistrate was left to speculate after the statement by Bainimarama was made.

He also says the statement had said Tuks but the State does not prove who Tuks is.

Sharma also says that the charge against Bainimarama says that Bainimarama told Qiliho but Bainimarama was not telling but suggesting.

He asks where is the proof that it was told to Qiliho and says there is no evidence before the court that a conversation took place between Bainimarama and Qiliho.

The defence lawyer says the context of the conversation between Bainimarama and Qiliho cannot be made in court.

He asks what investigation was Bainimarama talking about and says ‘to stay away’ does not mean to stop the investigation.

Sharma says you cannot ask the court to infer from that.

He also says when Dass was cross examined, she said she disobeyed the order she got in a call from Qiliho on 15th July, 2020 as she had thought it was not right but when the Magistrate had said that this was insubordination, then Dass said it was a directive.

He also asks why did Dass not give evidence before being told to do so.

Sharma also says the USP investigation file was with Director Economic Crime Rajesh Kumar on 6th July, with Deputy Director Economic Crime from 10th July to 31st August and then goes back to Kumar who holds it until 16th October when it is returned to Dass so to say that the investigation had closed is wrong as even though Dass was not actively investigating, it was still open and was with the seniors.

He says Dass did not tell the court that the CID documents were not with her from 6th July.

Sharma says all throughout 2020 and 2021 nothing happens but suddenly, in 2022 Kumar and former CID Director Mesake Waqa decide to file away but neither of them asked Qiliho for clarification who is charged with a horrendous crime yet those who committed the arbitrary act do not face the prejudice.

While responding to Sharma’s submission, Acting DPP Ratu David Toganivalu says the important thing to note from Dass’ investigation diary is that on 15th July, 2020, calls were made to CID headquarters from the Office of the Prime Minister to stop the investigation.

At this point, Magistrate Puamau asked if this is not hearsay to which Toganivalu responded that it was a record directly after a conversation.

Magistrate Puamau says Dass heard it from Qiliho but they do not have her fact checking and she wrote down what she said but it does not make it true. She says she can draw inferences from evidence but cannot draw evidence from a statement.

The Magistrate further says she is convinced that the whole thing about Dass is that it was hearsay.

She then asks that was Neiko’s evidence also not hearsay to which Toganivalu says that it was but he is inviting her to see that Neiko said it was from the Prime Minister’s Office.

Magistrate Puamau says the rule is anything one accused says about another accused person outside court is hearsay and if Qiliho decides to come to court and cut Bainimarama’s throat then that is direct evidence.

Toganivalu then asked for Magistrate Puamau’s view that is it still hearsay if they are not accused of the same offence to which she responded that it is hearsay as they are on the same charge sheet.

Toganivalu also says if you look at the letter from the DPP to interview suspects then that did not happen and if you take that fact and consider that the complainants were written to and queries responded and the file moving for prosecution then there is nothing in the file that says that it happened.

Magistrate Puamau says if Dass did not have the file until 16th October then how can the court accept that the investigation stopped.

She says maybe she had not actioned on it but as far as the institution is concerned the file was active.

Toganivalu responded that no investigation happened until 6th January 2022 when the investigation stopped.

In his final response, Sharma says that they do not deny that the file closed on 6th January, 2022 but it was filed away by someone else.

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.