The Suva High Court will make a ruling on former Deputy Prime Minister Manoa Kamikamica’s application for a stay in proceedings brought against him by FICAC on the 24th of April.
The King’s Counsel for Kamikamica and former Deputy Prime Minister Professor Biman Prasad says Acting FICAC Commissioner Lavi Rokoika has a conflict of interest as she represented a 'Mr Ravu' in the Commission of Inquiry hearing and had contradicted Kamikamica.
During the hearing, King’s Counsel Martin Daubney says the offence and charge arise out of the evidence Kamikamica gave in the Commission of Inquiry into Barbara Malimali's appointment as FICAC Commissioner.
He says the charge arises out of the conclusion reached in the COI concerning a conflict between Kamikamica's evidence and the information provided by former Minister for Fisheries, Kalaveti Ravu.
Daubney, while quoting Kamikamica's affidavit, says Rokoika is predisposed against Kamikamica and is unlikely to approach any investigation concerning him with impartiality as her position as Ravu's lawyer appears to have involved that he acted unlawfully in relation to Ravu and FICAC.
He also says that Rokoika did not file an affidavit denying allegations of conflict of interest or an explanation surrounding the conflict.
The King's Counsel says the inference to be drawn from the absence of an affidavit is that the evidence would not have contradicted what Kamikamica said or at the very least, would not have helped FICAC's position.
Daubney stresses that the conflict of interest creates a substantial and unacceptable risk that she cannot approach any investigation or prosecution involving Kamikamica with impartiality, given her prior role as a legal representative to a key witness.
He says the gist of their argument against the conflict of interest argument is that there is no worry about conflict of the prosecutor but the important thing is that the Magistrate is independent.
The King's Counsel says the requirement of the Magistrate to be independent does not somehow magically absolve the prosecutor from being required to be impartial.
He also says FICAC's submissions ignore and have complete disregard to the duty that rests on the prosecutor, which is to be an administrator of justice.
Daubney says it is not the prosecutor's role to secure a conviction, it is to ensure that justice is done and that relies on the qualities of fairness, candor, and independence.
He adds the conflict is so fundamental to the institution of prosecution that to allow it to continue would simply be a mockery of the criminal justice system in this country.
Daubney also says there is a complete absence of evidence of criminal or any wrongdoing whatsoever on Kamikamica’s part.
He says the absence is so profound that the prospect of a fair trial has been irreparably compromised.
While responding to Kamikamica's submission, FICAC lawyer Josann Pene says that Daubney has not identified any potential information obtained by Rokoika when she represented Ravu in the COI.
She says they have also not demonstrated how such information could be relevant to the proceedings.
Pene also says that the conflict of interest argument remains speculative and that it is insufficient to point to a prior professional relationship and assert, without evidence, that it is compromising the proceedings.
She also asked Justice Siainiu Fa’alogo Bull to note that Rokoika is not an arbiter of guilt as the determination of fault and law rests with the court.
The FICAC counsel also says that there is no evidence of personal interest, improper conduct or any risk to the trial’s fairness.
In his right of reply, Daubney stressed that there is uncontested evidence that the signature on the charge sheets belong to Rokoika.
He says any argument on conflict of interest would be speculative, as Rokoika has chosen not to provide any affidavit.
The King’s Counsel says that FICAC had argued that is no prejudice against them.
He remarked that, apart from the minor detail of a person who was Fiji’s Deputy Prime Minister being subjected to criminal charges and facing the prospect of defending himself in the criminal courts because Rokoika was the lawyer for his opponent in the COI, there is no prejudice.
Meanwhile, Rokoika had made an objection this morning that eventually led Justice Siainiu Fa’alogo Bull to note that the issue was unnecessarily prolonged.
As Daubney had started to make his submission, Rokoika had objected, stating that Daubney had not included the point regarding conflict of interest in the list of grounds for the stay application.
Rokoika had argued that procedures must be followed, however, Daubney had said that FICAC had responded to their submission on the point of conflict of interest.
Justice Bull ruled in Rokoika's favour, however, Daubney brought a motion to make amendments to their submission by adding another paragraph regarding the conflict of interest.
Rokoika objected to this, stating that it is prejudicial against them and there is no reason why this has come so late.
When questioned multiple times by Justice Bull on how it would prejudice them, Rokoika conceded, saying she would be clutching at straws.
Kamikamica is charged with one count of perjury and one count of providing false information to a public servant.
Professor Prasad faces two counts of failure to comply with statutory disclosure requirements and one count of providing false information in a statutory declaration, allegedly omitting his directorship.
While the charges arise from separate cases, the court is heard their applications together, as both challenge the validity of Rokoika’s appointment.
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