The ruling on the legal challenge regarding the Health Tender trial will be delivered this Friday.
Defence lawyer for former Health Minister Dr Neil Sharma, Wylie Clarke says there is no applicable common law in Fiji to allow hearsay evidence to be admitted.
Clarke is challenging the tender procurement reports and minutes in the trial of Voreqe Bainimarama, Aiyaz Sayed-Khaiyum and Dr Sharma.
He says the reports submitted as evidence are summaries of source documents.
The defence lawyer argues that they are secondary documents, not primary documents, and that hearsay documents are not accepted in court proceedings.
He says that in a properly conducted trial, admissible evidence is crucial, and unfortunately, there is none in this case.
Clarke further says these documents cannot be used by the State.
Assistant Director of Public Prosecutions Laisani Tabuakuro responded that the court must dismiss the motion and allow the State to call its witnesses.
Tabuakuro says the Tender Evaluation Committee minutes have been admitted by the committee members.
She says the witnesses to be called have personal knowledge of the documents, and therefore the hearsay rule does not apply.
The Assistant DPP says the motion is baseless and without merit.
She says the matter should proceed to trial and the State should be allowed to prove its case.
She adds the tender involved $800,000 of taxpayers’ money, and the defence is jumping the gun without hearing from the witnesses.
These include FICAC officers, Tender Evaluation Committee members and other witnesses.
Tabuakuro says that before the Committee could act, Dr Neil Sharma interfered and used his position as Health Minister.
She says the documents were lawfully seized.
She adds that a sitting Minister has no authority to be involved in the process, however, Dr Sharma allegedly was.
Clarke responded that the State wants to rely on these documents to prove criminality.
He questioned why the tenderers themselves have not been called to give direct evidence.
Doctor Sharma is charged with two counts of abuse of office and two counts of breach of trust by a person employed in the public service.
It is alleged that Doctor Sharma between July 26th 2011 to September 13th 2011, abused his position as the Minister of Health by intentionally failing to comply with statutory requirements for tenders stipulated under Procurement Regulation 2010 for the Ministry of Health Tender CTN 66/2011 and actively engaged in acts to undermine CTN 66/2011 in favour of bidder, Hospital Engineering & Consultancy Ltd also known as Hospineer.
It is also alleged that Doctor Sharma between October 18th 2011 to October 20th 2011, abused his position as the Minister of Health by intentionally failing to comply with statutory requirements for tenders stipulated under Procurement Regulation 2010 for the Ministry of Health Tender CTN 153/2011 and actively engaged in acts to undermine CTN 153/2011 in favour of bidder, Hospital Engineering & Consultancy Ltd also known as Hospineer.
Dr Sharma also allegedly between July 26th 2011 to September 13th 2011, in the discharge of his duty committed a breach of trust by intentionally manipulating the tender process for the Ministry of Health Tender CTN 66/2011 in favour of Hospital Engineering & Consultancy Ltd also known as Hospineer, and between October 18th 2011 to October 20th 2011, in the discharge of his duty committed a breach of trust by intentionally manipulating the tender process for Ministry of Health Tender CTN 153/2011 in favour of Hospital Engineering & Consultancy Ltd also known as Hospineer.
Former Prime Minister Bainimarama is charged with one count of abuse of office.
It is alleged that Bainimarama on September 13th 2011, being employed in the public service as the Minister of Finance of the Republic of Fiji, recklessly abused his position as the Minister of Finance by granting waiver of tender process without lawful justification for Ministry of Health Tender CTN 66/2011 in violation of the Procurement Regulation 2010.
Aiyaz Sayed-Khaiyum is charged with one count of abuse of office and one count of obstructing the course of justice.
It is alleged that Sayed-Khaiyum on October 20th 2011, recklessly abused his position as the Acting Minister of Finance by granting waiver of tender process without lawful justification for Ministry of Health Tender CTN 153/2011 in violation of the Procurement Regulation 2010.
It is also alleged that Sayed-Khaiyum between June 1st 2012 to March 31st 2019, being employed as the Attorney General, intentionally obstructed FICAC's investigation against Dr Neil Sharma in the Ministry of Health Tender CTN 66/2011 by directing all investigations to be shelved until further notice which resulted in the cessation of FICAC investigation and no criminal charges being filed against Dr Sharma for the past 10 years.
Sayed-Khaiyum allegedly knew that there was compelling evidence in the FICAC investigation which would have resulted in criminal charges being filed against Dr Sharma, by issuing such a directive as the Attorney General, and he had allegedly obstructed the course of justice.
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