DPP lawyer Nancy Tikoisuva has told the High Court that the Magistrate in former Prime Minister Voreqe Bainimarama and suspended Police Commissioner Brigadier General Sitiveni Qiliho’s abuse of office trial had made her own assumptions and inferences without further questioning the witnesses.
Bainimarama was charged with one count of attempt to pervert the course of justice while Qiliho was charged with one count of abuse of office.
They were found not guilty and acquitted accordingly by Magistrate Seini Puamau last year.
In the appeal hearing in the Suva High Court before Acting Chief Justice Salesi Temo, Tikoisuva says the Magistrate breached the Brown and Dunn rule that ensures a fair trial.
She says the Magistrate formed an opinion in relation to former Deputy Police Commissioner Rusiate Tudravu's evidence without giving the witness the opportunity to correct or make a comment.
Tikoisuva says Magistrate Puamau had said that Tudravu came to court with an axe to grind but there was nothing done to prove his intention.
She says the failure to put motive was never put to Tudravu and the Magistrate exacerbated the matter by using the evidence.
The lawyer says the substance to believing the prosecution witness was predominantly on matters that was not raised to the prosecution. Tikoisuva also says none of the police officers were questioned that there was another police investigation on COVID-19 and not about Winston Thompson.
She says in relation to comments by Bainimarama and Qiliho, the defence of COVID-19 and a separate USP case was a fabrication and a recent investigation.
The lawyer says none of the reasons of acquittal were put to witnesses and for her to take it upon herself to make assumptions without any basis, was an error.
She says it was not put to Director CID Serupepeli Neiko and Inspector Reshmi Dass that there was another investigation into USP.
When questioned by Acting Chief Justice Temo that it was the counsel's decision on how they fight the battle and it is their right to apply to the Magistrate to recall the witnesses but nothing of that sort was done, Tikoisuva says it was the Magistrate herself who should have stayed away from analysing the witnesses but because she jumped in and took swipes at the motives of the prosecution witnesses, she took it upon herself to discredit the prosecution witnesses without any evidence and should have recalled witnesses and put matters to them.
She says the Magistrate basically made her own speculations and conjured up evidence on her own and this included her analysis that there were three separate USP investigations when clearly there was only one.
She says the Magistrate fell into her own trap when she said in her judgement that assumptions can make donkeys out of people.
Tikoisuva says clearly, they are in this situation and appealing because of her own assumptions about key witnesses without any particular evidence.
The hearing continues and Bainimarama and Qiliho's lawyer, Devanesh Sharma is expected to respond this afternoon.
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