closing final defence submission in qarase case_1
TRANSCRIPT
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IN THE HIGH COURT OF FIJIAT SUVACRIMINAL JURISDICTION
Criminal Case No. HAC 27 of 2007
BETWEEN: FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION Complaint
AND: LAISENIA QARASE Accused
________________________
CLOSING SUBMISSIONS FOR THE DEFENCE
Contents: Paragraph
A. INTRODUCTION THE CASE IN PERSPECTIVEThe case in perspective 1-3The abuse of office charges 4-24The administrative duties charges 25-31B. THE CHARGESFICAC must prove all the elements 32-33How the charges are made up 34The common factor in all the charges - employed in the public service 45-46Abuse of office applying for shares charges (1, 3 and 5) 47-68Abuse of office facilitation charges (2,4 and 6) 69-99Abuse of office special property charges 100-118C. CONCLUSION 119-131
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IN THE HIGH COURT OF FIJIAT SUVACRIMINAL JURISDICTION
Criminal Case No. HAC 27 of 2007
BETWEEN: FIJI INDEPENDENT COMMISSION AGAINST
CORRUPTION Complaint
AND: LAISENIA QARASE Accused
________________________
CLOSING SUBMISSIONS FOR THE DEFENCE
________________________
Ladies and gentleman assessors
A. INTRODUCTION THE CASE IN PERSPECTIVE
The case in perspective
1. This has been a long trial and I thank you for your patience with all of us,
particularly the defence team. Perhaps we were not quite as organised as the
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very slick and expensive FICAC legal machine on the other side. But we have
tried to keep this trial running efficiently, while defending the best interests of
our client, Mr Qarase.
2. Now that all the evidence is in, I think it is very important that we just
stand back and put everything in perspective. What has gone on here?
3. We all know why FICAC exists. It exists to clean up corruption. The
current government took power from Mr Qarases government because it said
there was too much corruption. But here, FICAC has not tried to clean up Mr
Qarases government. It has gone back 20 years - a generation. It has gone back
to a time when Mr Qarase was not even a politician. Why it has done this, only
FICAC knows. Not many court cases take place 20 years after things have
happened 20 years ago. We are certainly asking why this case is taking place.
The abuse of office charges
4. Mr Qarase faces six charges of abuse of office. Now, if we forget all the
technicalities for a moment, we know what that means. It means corruption. It
means that somebody has used his power his public office wrongly to get
something for himself.
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5. If you are interested, there are some well-known cases that lawyers tend
to quote in Fiji when they talk about abuse of office. I will give you three
examples of different cases where public officers abused their power to get
something for themselves. So, for example:
- There was Beniamo Naiveli 1. He was an Assistant Commissioner of
Police. Someone was squatting on his land. He wanted that person off his
land. You or I would need to hire a lawyer to get a court order. Instead,
Naiveli ordered junior police officers to remove that person.
- There was Suliano Sorovakatini 2. He was the civil servant who bought $1
million in overpriced agricultural goods with Government money. In
return, he got over $100,000 worth of bribes.
- There was Tomasi Kubunavanua 3. He was the officer in charge at
Lautoka Police Station. One of his junior officers had brought in a stolen
TV set as an exhibit in a crime. Kubunavanua took it home for his
personal use.
6. You may hear from FICAC about one of its recent cases, that of Mr
Mahendra Patel. Mr Patel was charged with abuse of office. It was alleged that,
as chairman of Post Fiji, he authorised the purchase of an outdoor clock from
Prouds, a company in which he had an interest. Of course, one of the things to
1
Naiveli v State [1995] CAV 001 of 1994, Supreme Court, 23 November 19952 State v Sorovakatini [2007] HAC 18 of 2005, High Court3 Kubunavanua v The State [1993] AAU 008 of 1992, Court of Appeal, 5 May 1993
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remember in that case is that the assessors found Mr Patel not guilty . The judge
overruled the assessors. In that case, the facts alleged were that Mr Patel had
abused his power as chairman of Post Fiji to force Post Fiji to buy a clock from
Mr Patels company.
7. Now if you look at all these cases, what you see is somebody getting a
benefit of some kind because he abused his power. Because of the abuse, there
was a gain of some kind not always money.
8. Now lets look at what happened here. Mr Qarase applied for some shares
on behalf of three companies. All the shares were properly applied for. All the
shares were paid for, in full.
9. Then at least, the prosecution says this Mr Qarase voted, with all his
fellow directors in FHL, for the shares to be issued to those three companies.
Nothing was hidden. The directors were given all the paperwork to show who
owned those three companies. Mr Qarase concealed nothing. Mr Qarase
covered up nothing.
10. As a result, we know, these three companies Cicia, Mavana and Q-Ten
- got shares in Fijian Holdings. And those shares paid dividends to the
shareholders. We know that Q-Ten was owned by Mr Qarases family. We
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office? No it is not. It is because they have invested their own money. These
are not gains from corruption. These are gains from investment.
13. So Mr Qarase invested in Fijian Holdings or helped others to. For this,
he is being prosecuted for abuse of office. This charge carries a maximum
sentence of three years jail.
14. In a few moments I am going to get a bit more technical and talk about
the evidence and the law. But let us all just keep this in mind. The law convicts
when a person has done something wrong. What has Mr Qarase done wrong
here, that he should be at risk of going to prison? We say, he did nothing wrong
and yet, we can be certain, FICAC will insist on Mr Qarase being imprisoned.
15. FICAC has tried to give you the impression that Mr Qarase was a greedy
man who hid the truth from others so that he could make a lot of money for
himself or his family. But is that true? He hid nothing. And how much money
did he make? We know he gets no money from Cicia. We know Mrs Qarases
shares made $800 last year. As for Q-Ten Limited, we also know it is an
agreed fact Q-Ten sold its Fijian Holdings shares in 1995 - only four years
after it bought them. If these were such a great prize, why did Q Ten not keep
them? We know now that Q-Ten gets maybe $4,800 a year in dividends from
Mavana Investments. All from money it has invested.
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20. This is an important matter for you. In one of his rulings in this case, the
judge has said that it is a matter of fact whether Mr Qarase was employed in the
public service. That means, it is a matter for you to decide. And I will come
back to that.
21. We say that of course Mr Qarase was not in the public service. This man
was the head of the Fiji Development Bank. He occasionally gave some advice
to the FAB and was paid a little bit of money, like a lawyer, or a consultant.
That is it. He wasnt employed by FAB. He was FABs adviser. Right now I am
Mr Qarases adviser. When this case is over I will go and advise somebody else.
I am not Mr Qarases employee. And Mr Qarase was not FABs employee.
22. So what we have got here is FICAC, trying to build up a huge case from
nothing, all because FICAC says Mr Qarase did not declare his interest at a
FHL board meeting.
23. If you think about it, here is the problem. In the public sector, you get a
salary and you do your job. You do nothing for profit. In the private sector you
invest for profit; as a director you work to make profit for your company. That
is what Mr Qarase did. This is not a crime. FICAC is trying to make it a crime.
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24. This is the reason everything is so confusing and these charges are so
mixed up. FICAC is trying to apply public sector rules to private business. But
public sector is public, with its own rules, like corruption rules for civil
servants. The public sector is where FICAC belongs. Private sector is private,
also with its own rules, like the Companies Act. That is where Fijian Holdings
is. Fijian Holdings is private. FICAC does not belong there.
The administrative duties charges
25. Let us not forget the last three charges. Again, before I get very
technical, we should just stand back and look at them in perspective. These
charges basically say that Mr Qarase was a public servant. FICAC says Mr
Qarase was responsible to look after special property of some kind and then
acted improperly on that special property. FICAC doesnt say what improper
thing Mr Qarase did. FICAC just seems to think that Mr Qarase had this special
responsibility, and by being a FHL director, he was acting improperly.
26. And on this we say, what is all this fuss about? Mr Qarase was a director
of a commercial company. He was like Mr Joe Mar. They were appointed for
their commercial knowledge. They were not chiefs. They were not provincial
leaders. Mr Qarase was a banker and Mr Mar ran an oil company.
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27. The people who started this company the government and the Fijian
Affairs Board wanted to get the Fijian people into business through this
company. And so the company had to be run on commercial lines. Otherwise
what would be the point of having it at all? As Mr Mar said, the company ran on
commercial principles, not vanua principles.
28. And in this company, Mr Qarase was a director. He was one member of a
board. He did what directors do. The board decides together - what the
company should invest in. It decides on the budget. It decides on the dividends.
That is what company directors do under company law. Mr Qarase did not owe
any duties to the vanua. He did not owe any duties to the Fijian people. He was
just a director of a company. Mr Mar was very clear in his evidence. As a
director he owed a duty to the shareholders. Nobody ever told him, as a director,
that he owed any duty to anybody other than those shareholders. Nor did he
think otherwise.
29. And while he was a director of that company, nobody has even suggested
Mr Qarase was a dishonest as a director. He did not do special favours for his
own company, or for Mavana or Cicia. He did not try to get extra benefits for
those companies. And yet somehow FICAC wants to prosecute him, just for
doing his job as a director of FHL. It just does not make sense.
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elements must be proved for the charges to succeed. If FICAC has not proven
all the elements, beyond reasonable doubt, the charges fail and Mr Qarase
cannot be convicted. In other words, if any element of the offence is
- missing or
- not made out
or you have reasonable doubt about it about any one of those elements - you
must find Mr Qarase not guilty.
How the charges are made up
34. I am sure you know this, but I will take you through it anyway. There are
three sets of three charges:
- First there are 3 application charges Charges 1,3 and 5 [review charges in
detail] . Those are the charges that Mr Qarase abused his office applying for
shares in Cicia, Mavana and Q Ten.
- Then there are the 3 facilitating charges Charges 2, 4 and 6 [review
charges in detail] . These are the charges that Mr Qarase abused his office by
facilitating approval of the issue of shares in Cicia, Mavana and Q Ten.
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- Then there are three special property charges Charges 7, 8 and 9 [review
charges in detail] . These are the charges that Mr Qarase discharged his duties
as a director in respect of the Mavana, Cicia and Q Ten shares.
The common factor in all the charges - employed in the public service
35. In all of the charges FICAC says that Mr Qarase was a person employed
in the public service. FICAC says he was employed in the public service
because:
- he was a director of Fijian Holdings - and
- he was financial adviser to FAB - and
- he was an adviser to the Great Council of Chiefs.
36. Notice the words and. FICAC must prove that he was all three of
those things. I repeat all three of those things. FICAC wrote the charge. We
didnt. FICAC says Mr Qarase was a public servant because he was a FHL
director, and adviser to FAB and adviser to the Great Council of Chiefs.
FICAC must prove that he was all of these things.
Director of Fijian Holdings
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37. First of all, as a director of Fijian Holdings was Mr Qarase a public
servant? Of course he was not. He was not appointed under any Act or
regulations. He was appointed under the Articles of FHL. Remember what is in
clause 5 of FHLs Memorandum of Association:
The holders of the Class B Shares shall be entitled to appoint, through the Minister of Fijian Affairs, 6
(six) of the maximum 9 (nine) directors of the company and the holders of the class B shares shall be
entitled to appoint the remaining 3 (three) directors.
38. Mr Qarase was appointed by the holders of the B Class Shares through
the Minister of Fijian Affairs. So if the B Class Shares were sold to Manubhais
tomorrow, the Minister would make the appointment. But he would appoint the
directors on behalf of Manubhais. The power is in the shareholder, whoever the
shareholder is. The power of appointment is not the Ministers. He is merelythe agent of the B Class shareholders. If Mr Qarase was not appointed by the
Minister, he was not employed in the public service. And if you stand back and
think about it, it makes no sense. How can a director of a private company be in
the public service?
Adviser to FAB
39. Second, as financial adviser to FAB, was Mr Qarase a public servant?
The legal definition of a person employed in the public service means a person
permanently or temporarily employed not a consultant, not an adviser a
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person employed. Now under that definition you may be a Ministerial
appointee, or a Presidential appointee but first and foremost you must be an
employee. Then there are other specific roles that are added to that definition
so they too become persons employed in the public service . It is interesting that
one the specially added roles is employees of the FAB. Are FAB advisers added
to the definition? No.
40. Mr Qarase was an adviser. That is true. He was paid a fee. That is true.
But as I said before, Mr Qarase is paying me a fee as his adviser. But he does
not employ me. When these things happened, Mr Qarase was employed by Fiji
Development Bank. He was not employed by FAB. Ratu Meli Bainimarama
confirmed that in his evidence.
41. FICAC is trying to make technical and complicated arguments about how
Mr Qarase was employed in the public service. But common sense tells us that
he was not.
Adviser to Great Council of Chiefs
42. Third, as adviser to the Great Council of Chiefs. Well:
- we all agree that there was a position as FHL director
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- we all agree that there was a position of FAB adviser.
and while we say these may not be public service positions, at least we
agree that those positions exist .
43. But there is no proof of any position as adviser to the Great Council of
Chiefs. It does not exist under any law. It is not a gazetted position. That is
because the position does not exist. It does not exist in law and it does not exist
in fact. Full stop.
44. The prosecution will tell you that Mr Qarase made a presentation to the
Great Council of Chiefs. In their desperate logic this means he is the adviser
to the Great Council of Chiefs. Many people have made presentations to the
Great Council of Chiefs. Sir Ian Thomson presented to them. Mr Jai Ram Reddy
presented to them. Even the Queen addressed the Great Council of Chiefs, in
1982. That does not make them advisers to the Great Council of Chiefs. It
certainly does not make them employed in the public service. So if there is no
position of adviser to the Great Council of Chiefs, then, on FICACs own
charges, Mr Qarase cannot be employed in the public service and all the
charges must fail 6.
6 Refer paragraph 36. The definition is cumulative.
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45. So what we are saying to you is that this first, most critical element of all
the charges is not proven much less proven beyond reasonable doubt. We say
that many doubts have been raised about whether Mr. Qarase was a person
employed in the public service . And if that is so, then all the charges fail and
the whole case is over. I repeat, FICAC has not proven that Mr Qarase was a
person employed in the public service. And each of the nine charges every
single one says that he was. So if you have a reasonable doubt about this, you
must find Mr Qarase not guilty - on all counts. All of them must go.
46. That is what we say. Remember what I said earlier. FICAC is trying to
use public law to punish Mr Qarase for exercising private rights. This is just
wrong.
Abuse of office applying for shares charges (1, 3 and 5)
47. Charges 1, 3 and 5 all say that Mr Qarase abused his office by applying
for shares in FHL. To prove those charges FICAC must prove these five things:
- First, FICAC has to prove Mr Qarase was a person employed in the
public service.
- Second it has to prove that he did an arbitrary act that is, that he applied
for the shares and failed to disclose his interest
- Third it has to prove that he abused the authority of his office
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- Fourth it has to prove that he did it for gain
- Fifth it has to prove that others were prejudiced by his actions.
First element public service
48. First element public service. We will not go through that again 7. You
have heard why Mr Qarase is not a person employed in the public service.
Second element arbitrary act
49. Second element arbitrary act. The leading case law in Fiji tells us that
an arbitrary act is an unreasonable act, a despotic act, an autocratic act 8 in
other words, an act that is not reasonable or fair. It has to be something done
with evil intent. If I walk to the shop to buy bread that is not, under this law, an
arbitrary act.
50. Well, Mr Qarase (on behalf of others) certainly applied for the shares.
Remember he applied for the shares. He filled out a form. He asked for
shares to be issued to three companies. That is all he did.
7 covered paras 35-468 State v Naiveli, High Court Criminal Case No 12/95, cited in State v Vakaloloma [1993] FJHC 93
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51. FICAC has never said it was unlawful or wrong to apply for shares. Mr
Weleilakeba made it very clear that these companies were allowed to apply. So
did Mr Mar. There was nothing arbitrary, unreasonable or autocratic about that.
So what is the case against Mr Qarase?
52. FICAC says he failed to disclose to FHL that he was applying for the
shares. But he signed the application form, so that cannot be right.
53. FICAC says that Mr Qarase failed to disclose to FAB that he was
applying for the shares. But FICAC never proved that. Ratu Meli Bainimarama
just said that he had no written record of disclosure. Honestly most of us have
seen the inside of Government offices. If a record of this was put on file, 20
years ago, how do you think Ratu Meli could find it?
54. Anyway, there are other ways that the FAB would know. Here is one
way. The Minister for Fijian Affairs the line Minister for the FAB, Col Vatilai
Navunisaravi he sat, with Mr Qarase, right there, on the Fijian Holdings
board. He was one of the directors who voted in favour of the applications for
Cicia, Mavana and Q Ten. He got all the information that the other directors got
about the applications. How can anyone say that the FAB did not know?
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Qarase did not have any authority at FAB. If he had no authority, how could he
abuse it?
(c) Did Mr Qarase abuse his authority as (so-called) adviser to the GCC ?
Well, that position did not even exist. You cannot abuse an office and authority
that does not exist.
57. Remember, again, the examples I talked about at the beginning:
- An Assistant Commissioner of police used his power over junior police
officers for his private purposes. That is abuse of office
- A senior civil servant used his authority over Government funds to make
payments to people who gave him bribes. That is abuse of office.
- An officer in charge took home a television set that was supposed to be
used as evidence, so he could watch TV on it. That is abuse of office.
58. But when you are just an adviser to the FAB (which we say is not a
public service position), how do you abuse your office, just by applying for
shares?
Fourth element gain
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59. Fourth element gain. Now, here we have to apply ourselves carefully.
Remember that this is a separate charge of applying for the shares. And there is
no gain from simply applying for shares. Anybody can apply for shares. FHL
might say no you get nothing. Even if FHL says yes, you still dont get the
shares. You only get them when you pay the money for them. So where was the
gain from applying for the shares?
60. And what was the gain? The companies did not have the shares yet. They
didnt own anything. What was their gain?
Fifth element - prejudice to others
61. Finally, prejudice to others. If you look at charges 1,3 and 5 they say that
Mr Qarases actions in applying for these shares was an act prejudicial to the
rights of Provincial and Tikina Councils, FAB and all other eligible indigenous
Fijian people.
62. It is claimed that, just because Mr Qarase filled out three forms applying
for shares, that this was an act prejudicial to all the indigenous Fijian people.
How could this be? FICAC has to explain this. Because we say that this charge
is just a political speech dressed up as a criminal charge. That is FICACs
problem. That is what FICAC must prove. It must prove that Mr Qarase, in
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applying for the shares just applying for them deprived the provincial
councils, and the tikina councils, and the FAB, and the indigenous Fijian
people of rights. FICAC has put up no evidence of this so-called prejudice,
except for two letters. I will come back to them.
63. You heard the evidence of Mr Mar FHL really struggled at the time in
question to sell these shares to anybody. Mr Weleilakeba also confirmed that.
FHL was desperate to find people to buy these shares. You heard Mr Mar. He
said that FHLs directors were frustrated and downhearted after their campaign
to sell shares failed. He said that Mr Cupit and Mr Weleilakeba approved the
purchase of shares by the directors and Mr. Mar believed t his would give
confidence to outsiders to buy them. It is only now, 20 years after these things
happened, that FICAC now says Mr Qarase deprived others deprived every
indigenous Fijian - of the chance to own shares.
64. You have got to remember that the FHL of 20 years ago is not FHL of
today. You also have to remember that the time in question is when FHL was a
private company- it was only later that the shares were listed on the Stock
Exchange and there was some demand for them.
65. So what did FICAC do to try to prove prejudice? It produced two letters
just letters - from two people who said they wanted to invest in FHL and were
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too late. There is no evidence they had the money to invest. There is no
evidence, even, that they qualified to invest. Remember, to be a member of
FHL, all your members had to be in the Vola ni Kawa Bula (VKB) . FICAC did
not bring the letter-writers to court to give evidence about any of these things.
So FICAC proved nothing. Mr Weleilakeba just waved a couple of letters
around.
66. So FICAC says that its two letters are the evidence the evidence that Mr
Qarase, by filling out some forms, deprived every indigenous Fijian of their
rights.
67. So you will understand why we say, for all the reasons we have talked
about, that charges 1, 3 and 5 are a total failure.
68. Now remember, if you agree with me about even one of those elements:
- about public service
- about the arbitrary act
- about the abuse of office
- about the gain
- about the prejudice
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- if you agree with me about just one of those things; or even if you dont agree
with me, but have a reasonable doubt about any of these things then you agree
with me that the charge fails and Mr Qarase should not be convicted.
Abuse of office facilitating charges 2,4,6
69. Now, we come to the next set of charges, 2, 4 and 6. Let us look at these
charges. [ review charges in detail ]
70. So let us do the exercise again. What are the elements?
- First, FICAC has to prove Mr Qarase was a person employed in the
public service.
- Second it has to prove that he did an arbitrary act that is, that he
facilitated the approval for the issuance of the shares and failed to
disclose his interest
- Third it has to prove that he abused the authority of his office
- Fourth it has to prove that he did it for gain
- Fifth it has to prove that others were prejudiced by his actions.
First element employed in the public service
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71. First one employed in the public service. We have already made our
points on this 9. So if you dont believe Mr Qarase was a person employed in the
public service, the charge fails.
Second element arbitrary act
Voting
72. Second element the arbitrary act. Remember what we said before. The
arbitrary act has to have some element of wrongness in it 10. What is claimed
here? It is claimed that Mr Qarase facilitated approval of the issue of shares
and failed to disclose his interest.
73. Now this is quite important because FICAC has made a very big issue of
this. It goes on and on about how Mr Qarase voted for the issue of shares but
failed to disclose his interest at the board meeting.
74. First of all, FICAC has to prove that Mr Qarase facilitated approval.
What does that mean? I looked up the word facilitate in the Oxford Advanced
Learners Dictionary. It means to make an action or process possible or easier.
9 Paragraphs 35-4610 Paragraph 49
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75. To even move forward on this issue FICAC has to prove that Mr Qarase
voted. What is FICACs evidence? Mr Weleilakeba and the minutes he wrote.
Now, let us talk about this evidence for a moment.
76. Mr Weleilakeba cannot remember if Mr Qarase voted or not. That is not
surprising this is 20 years ago. All Mr Weleilakeba says is that the minutes
showed unanimous approval for the resolution.
77. You heard Mr Mars evidence. Votes were not actually taken one by one
at the board meetings. Everything was just aye, aye. Mr Weleilakeba would
not know if Mr Qarase voted or did not vote. He just wrote down unanimously
approved.
78. But even if Mr Qarase did vote, he was one of nine directors who voted.
With or without his vote, the decision would have been made. But, but, the
prosecution will tell you, maybe the directors would have voted differently if
Mr Qarase had declared his interest.
79. Why would they? They already knew about Mr Qarases interest. They
knew he had signed the application form. They knew about his family
shareholding in Q Ten. They knew about Mrs Qarases small shareholding in
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Mavana. They knew Mr Qarase had no shares in Cicia. This is because all the
directors got the summary at the board meeting. Just like Stiks Investments, Mr
Weleilakebas family company. Just like Nabuabua, Mr Mars family company.
Those applications were approved. What did the directors not know, and
what would they have done differently?
80. This is the silly thing about these charges. Nothing was hidden. All the
critical information was known. Mr Mar told you this. Even Mr Weleilakeba
admitted this.
Disclosing
81. So how does FICAC prove that Mr Qarase did not disclose his interest?
It produces the minutes of the meeting in 1992. The minutes say that this
decision was unanimously approved. And who took the minutes? Mr
Weleilakeba. Remember, this is the same Mr Weleilakeba who was also facing
the same FICAC charges as Mr Qarase but he is no longer facing FICAC
charges now. He has escaped going on trial.
82. Mr Weleilakeba cant remember whether Mr Qarase declared his interest.
He just says if it wasnt in the minutes, it didnt happen.
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86. Now, it is true that Mr Mar did not challenge those minutes. And there is
no evidence that Mr Qarase did. But Mr Qarase is not on trial for failing to
check the minutes. He is on trial for not disclosing. And the prosecutions
evidence on this is thin. It is based on the unreliable minutes of Mr Weleilakeba.
We know those minutes are unreliable because of what Mr Mar said.
87. Whose evidence do you prefer? Mr Weleilakebas or Mr Mars? This is
all I want to say about Mr Weleilakebas evidence. You must seriously consider
that he was previously charged by FICAC regarding similar matter s - and now
he is not. True, he said in his evidence that he did no deal with FICAC. And he
agreed on the stand that his lawyer made representations and he gave a plain
statement to FICAC before charges against him were dropped. And so, we
believe he would have a much better attitude towards FICAC after the charges
were dropped - wouldnt he?
88. Then there is Mr Mar. He has an impressive record in public and private
life. He is a successful company director living far from Fiji. Why would he not
tell the truth?
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89. Now, I have spent a lot of time on this business of disclosure. That is
because FICAC made a big deal of it. But even after all of that, none of this
matters. Why?
90. Mr Qarase is not charged for not declaring his interest at the board
meeting. If he was, he would be charged under the Companies Act 11 and he
would face a possible $1,000 fine. FICAC just says that Mr Qarase did not
disclose. Now, this is important. A breach of the Companies Act is a technical
breach. If you breach it, you get hit with a fine. You do not go to jail. But the
charges that Mr Qarase is facing are charges of dishonesty. They are charges
that he either lied, or he concealed, he covered up, his interests in Fijian
Holdings. And we know that this is not true.
91. Mr Qarase did disclose. He did not hide anything. He was not dishonest.
Mr Mar has given evidence that every director got a written summary of the
shareholding of every company applying for Fijian Holdings Shares. They had
to get that summary because every shareholder of every applicant had to be in
the VKB. That was why Mr Weleilakeba did the work to prepare the summary
in every case.
11 S.201
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92. So every director knew exactly what Mr Qarases interests were in Q
Ten. Every director knew that he had no interests in Cicia Plantation. And if
Mrs Qarase had any shares in Mavana at the time, the directors would know.
93. Did Mr Qarase hide behind another person? No. Did he have a secret
connection with another company that he did not tell FHL about? No. Mr
Qarase hid nothing. There has never been evidence not even from the FICAC
star witness, Mr Weleilakeba that Mr Qarase hid anything.
Third element abuse of office
94. Now, the third element abuse of office. Remember the exercise we did
before:
(a) FHL director? How did Mr Qarase commit abuse of office as a FHL
director? If he failed to declare and remember, that is not proven - that is not
abuse of office. That is simply failing to declare. That is why you get a
maximum $1,000 fine, not three years in jail.
(b) FAB adviser ? Remember what we said. Mr Qarase had no power at
FAB. Therefore he had no authority. Therefore he had no authority to abuse
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(c) GCC adviser? no office therefore no authority therefore no
authority to abuse.
Fourth element gain
95. So we go on to the fourth element gain. Now, this is very important.
This is no longer just an application for shares they are being issued now. But
this is not gain . This is exchange. It is shares being issued at full price, in return
for money. The shareholders are paying for them. The shareholders used their
savings, pension fund or communal fundraising to meet the 20% equity required
by the FDB for a loan. Like any other borrower. No special treatment. There are
shares and those shares are producing dividends. But how did this gain arise?
Is this a gain from abuse of office? No it is not. It is a gain from investing. All
the shares issued were paid for in full. No favours were done. Everything was
above board. For FICAC to prove gain, FICAC must prove that the gain came
from the abuse.
96. For example, if you are a civil servant and you take a bribe for destroying
a file, then you have abused your office - and you have gained by the abuse. If
Mr Qarase was an employee of the FAB and had asked for a favour and been
given shares for a discount, that would be a gain by abuse. But if he simply
helped private investors, who paid the full amount for their shares, their gain
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does not come from abuse of office. It comes from investing their money. It
does not come from any failure to disclose to FHL or FAB or the GCC.
97. This is why these charges are so complicated and confusing. FICAC is
trying to turn a crime meant for civil servants into a crime involving shares in a
private company. It does not work.
Fifth element prejudice to others
98. Finally, prejudice. We discussed this before 12. Who was prejudiced? Was
it the entire indigenous Fijian race? What is the proof of this? We know from
the evidence Mr Mars evidence, Mr Weleilakebas evidence - that nobody
wanted FHL shares at this time. The proof of prejudice is only the two letters
Mr Weleilakeba waved around and for the reasons I have already given you 13,
those letters prove nothing. lDo we say something about how the representative
of every Fijian in the VKB, the Minister for Fijian Affairs sat on the FHL Board
and he was privy to all that Mr. Qarase was privy to at the Board and he had a
direct official line of communication to the GCC and the provincial councils.
And if he and the other Fijian leaders did not do their job to encourage
investment in FHL, it could not be laid at the feet of Mr. Qarase who was
12 Paragraphs 61-6813 Paragraph 65
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disciplined and visionary enough to encourage the shareholders of the three
companies to take a risk with their savings, pension fund, fundraised monies to
invest in FHL]
99. So for those reasons, we say that the facilitating charges are not made
out. Now, I repeat - if you agree with me or if you have a reasonable doubt
about even one of those elements:
- about public service
- about the arbitrary act
- about the abuse of office
- about the gain
- about the prejudice
- if you agree with me - or even if you dont but have a reasonable doubt about
just one of those things then you agree with me that the charge fails, and Mr
Qarase should not be convicted.
Charges 7,8,9 special property
100. Now we turn to the last three charges. Let us go through them [ charges
reviewed ]. These charges are actually quite difficult to understand. It took me a
long time just to work out exactly what FICAC was trying to say in them.
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101. One of the problems with these charges is that we dont really know what
FICAC has said that Mr Qarase has done wrong. The charges seem incomplete.
It is almost as if FICAC lost interest in the charges half-way through writing
them. Mr Qarase is charged with discharging his duties. Of course you are
not usually prosecuted for discharging your duty. So what does FICAC mean? It
is not for us to guess what FICAC means. It is for FICAC to tell us what it
means and for FICAC to prove what it means. FICAC has not done that. So
perhaps these charges fail even at first reading.
102. But even if FICAC can show us what it means, it must prove that Mr
Qarase discharged his duties in some criminal way.
103. There is no case law in Fiji on these charges. So to find the leading case
on it we had to go to the Caribbean 14. In the British Virgin Islands a man called
Wheatley was the Secretary of Finance. This is probably a position like the
Permanent Secretary of Finance in Fiji. He was a consultant to a company
called Accurate Construction. Accurate Construction paid him fees. Accurate
Construction tendered to the government to build a wall. He awarded the tender
to Accurate Construction. He had an interest in Accurate Construction because
it paid him fees. If Accurate prospered, so did Mr Wheatley.
14 Wheatley v Commissioner of Police of the British Virgin Islands [2006] UKPC 24
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104. The reason he was convicted was because, for Mr Wheatley, the ability to
award Government building contracts was property of a special character. He
was the Secretary of Finance. He held a position of trust. He was like a trustee
for the taxpayers of the Virgin Islands. And he breached that trust because,
while doing that job, he discharged his duties in respect of property that is, the
building contract - in which he had an interest. He discharged his duties by
awarding that contract to Accurate Construction, which paid him fees.
105. Now, what is FICAC saying here? It is saying that Mr Qarase was a
director of FHL. It says that he had administrative responsibilities towards the
shares or property of FHL. It says that this was special property. It says that
the shares or property of FHL was special property because Mr Qarase was
responsible to all indigenous Fijian people for getting them into business.
106. And then, FICAC says, Mr Qarase breached that responsibility because
he discharged his duties as an FHL director.
107. Once again, this is what happens when FICAC tries to mix up public
sector standards and private business. In the private sector, if you are a
shareholder in a company, of course you want to be a director. You want to
manage the company so you can manage your investment. Dont forget that
when you invest you do not always get a profit. Sometimes, if you manage
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111. First of all, the first element is that Mr Qarase was employed in the public
service. We all know about that because we have been through this before15
. But
I will remind you he was not employed by anyone except Fiji Development
Bank. As a director of FHL he was appointed by the Minister of Fijian Affairs.
But the Minister acted under the Articles of FHL, not under any law . He did
not act under any law or regulation. It was a private appointment. It was not a
public or civil service appointment. So he was not employed in the public
service.
102. The second element is that by virtue of that employment he was
charged with special duties regarding FHLs property. Now of course if he was
not employed in the public service this element cant work. Was he a director
of FHL because he was financial adviser to the FAB? No. Was there any
connection between his FAB position and his FHL directorship? No. Was he a
director because he was adviser to the GCC? Well that position did not even
exist, so obviously no.
Third element property of a special character
15 Paragraphs 35-46
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103. The third element is that FHLs property was property of a special
character. This is where FICAC has really gone to town.
Shares are not FHL property
104. FICAC says that the FHL directors were charged with responsibility for
looking after FHL shares. That is obviously wrong. FHL does not own its own
shares. The shareholders own the shares. FHL cant be responsible for what the
shareholders do with the shares. That is obvious. This is just bad law and bad
commercial thinking. It just proves to us that FICAC does not really know what
it is doing.
Other FHL property
105. Then FICAC says that FHL directors were charged with looking after
FHLs property. That is true. But then FICAC says that FHLs property was
special. Look at the charges. FICAC says that FHLs property was held for the
benefit of indigenous Fijian people and to accelerate and broaden Fijian
participation in commercial and industrial sectors. If this sounds like a speech,
it is - we dont write these charges FICAC writes them. And that is what they
have to prove.
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106. Now with respect to FICAC, that is just nonsense. It is certainly true that
this was the political aspiration behind FHL. You heard Ratu Meli Bainimarama
and Ratu Timoci Vesikula talk about this. This was the Governments big
political idea. But it was not a duty of the FHL directors that they must hold the
property of FHL in trust for the Fijian people. That is what lawyers would call a
fiduciary duty. It was not anywhere in the Articles of FHL that they must do
this.
107. You heard Mr Mar. They were just directors of a company. They were
just doing what directors of any other company would do. Directors look after
the property of the company for the shareholders , not the entire indigenous
Fijian race.
108. Remember what Mr Mar said. FHL was not run on vanua principles. It
was run like any other business. That was the whole point of FHL. It had to be
run like a business. Have you ever heard of a business where the directors are
told your role is to get 400,000 people into commerce?.
109. The aspirations and hopes of a few politicians have no place in a criminal
court. Mr Qarase is at risk of going to jail because, FICAC says, he was
responsible for getting 400,000 indigenous Fijians into business. And this is just
absurd.
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Fourth element acquired some private interest in FHL property
110. The fourth element is the allegation that Mr Qarase acquired some
private interest in this so-called property of a special character. Of course, if it
is not property of a special character it does not matter if Mr Qarase got a
private interest or not. We say that FHL property it is not property of a special
character, so the private interest rule does not apply. But even if it was, what
was his private interest? Well, Mr Qarase advised Cicia (but was not paid). Mrs
Qarase had a few shares in Mavana (back then). His family owned all the shares
in Q Ten. This was the extent of Mr Qarases private interest.
Discharge of duty in connection with that private interest (in the property of a
special character)
111. If the property is not of a special character as we have talked about, the
fifth element does not matter. It fails. But let us go along anyway. The fifth
element may be important. Did Mr Qarase, exercising that duty as a director,
do anything which advanced his private interest in that property ? Now, what
is his private interest in FHLs property? It is, of course, the Q Ten Shares, and
perhaps the Mavana shares and perhaps the Cicia shares. That is his private
interest.
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112. When Mr Qarase was exercising his duties as a director of FHL, did he
given any special treatment to those shareholders the Cicia shares, the Mavana
shares, the Q Ten shares? So we ask ourselves:
- Did Mr Qarase say Fijian Holdings will pay the airfares for the
Mavana shareholders to come to Suva for the company meeting? No.
- Did he say The Mavana and Q Ten shares should get a special
payment? He did not.
113. All shareholders were treated equally, regardless of Mr Qarases private
interests. In other words, Mr Qarase just did his duty as a director of FHL -
without favour and without regard to his private interest.
114. Now, let us go back to that Secretary of Finance we were talking about,
Mr Wheatley. He was the Secretary of Finance. So he would deal with all kinds
of property. He would deal with contracts for roads, the payroll, overseas travel,
whatever. He had an interest in a building contract. And he dealt with that
building contract in a way which favoured that interest.
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starting out, it could have ended up as just another failed Fijian business. There
are plenty of those around. This is my point. The rewards that were earned
the dividends that were earned were not earned by corruption. They were
earned by investing and taking a risk. That is the same way a German investor
businessman invests, or a Japanese investor or an American investor. It is no
different for an indigenous Fijian investor?
117. So let us go back through the elements of these three charges:
- First, you must be employed in the public service
- Second, by virtue of that employment you must be charged with special duties
regarding property
- Third, that property must of a special character
- Fourth, you must have acquired a private interest in that property
- Fifth, you must discharge your duty in respect of that private interest.
118. And I repeat, as I have done before if any one of those elements fails, if
you have reasonable doubts about any of them - the charge fails and Mr Qarase
should not be convicted.
C. CONCLUSION
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119. I realise that I have spoken to you now for quite a long time. It is almost
over! But I have a few remaining things to say.
Burden of proof
120. FICAC has set up this case. It is FICAC that has to prove it. Our job is
only to tear it down. We do not have to prove anything. Mr Qarase does not
have to prove his innocence. FICAC must prove his guilt. And to do that,
FICAC must prove every element of every charge.
121. So when you are listening to the prosecution closing address, just keep it
in your mind, keep asking yourself the questions:
- was this man a civil servant, or even like a civil servant?
- did he hide anything from anybody?
- was he dishonest in his dealings in any way?
- did he or others make any dishonest gain from what he did?
and most of all, did he abuse his office?
122. I am sure you know all about the phrase beyond reasonable doubt. The
prosecution has to prove that Mr Qarase was guilty in these charges, beyond
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objective and critical mind. Just because FICAC is a government organisation
with big legal powers, a lot of money and a lot of staff does not make it right.
You must look critically at FICACs thinking and its motives.
125. And finally I would say this. In between all the arguments between the
lawyers there is one big difference between the FICAC case and Mr Qarases
case. And it is this:
- FICACs case is about board minutes, and articles, and share issues and what
the Fijian Affairs Act says. And for this it is willing to put Mr Qarase at risk of
prison.
- our case is simply to say to FICAC where, in all your long technical
arguments, do you say Mr Qarase was dishonest?
126. In the end, whatever you call them, these are charges of corruption.
Corruption means dishonesty and concealment. FICACs own website says this:
Corruption takes place in secret, aided and abetted by people who collude to
gain through dishonest practices. We all know dishonesty when we see it.
Dishonesty is not legal technicalities about who disclosed what to whom.
Dishonesty is hiding facts from people, lying to them. And I ask you where is
the dishonesty here? What has Mr Qarase concealed?
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127. FICAC wishes to put a man in prison because of what some company
articles say. And that is unjust. And FICACs whole case is built upon and
tainted by this injustice.
128. We all know Mr Qarase. He is the last person that the people of Fiji
elected as their Prime Minister. Then, perhaps, he was a distant and remote
figure for many of us. What is the picture of him that has emerged in this trial?
Is it of a greedy man who is now very rich at the expense of other indigenous
Fijians?
129. We say a clear picture has emerged of an honest and unassuming man.
This man has given years of service to the small island community he came
from. He has tried to bring indigenous Fijians into business in a small way, to
make them shareholders, to help them to meet the soli and other obligations
which, we Fijians know, can be so burdensome. The Mavana and Cicia
companies employ professional accountants; so they produce annual accounts
for everyone to see; they are transparent and well-run. In short, when we talk
about getting indigenous Fijians into business, Mr Qarase has not just talked
about it. He has done it. This is exactly how it should be done.
130. Mr Qarase has charged these people nothing for his advice and help. He
and Mrs Qarase earn a modest investment income from their own prudent
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saving and investing. This is not and was never a man given to greed or
dishonesty or abusing his power for gain from others.
131. In this court, Mr Qarase is an ordinary citizen, like the rest of us. And
each one of us, if we were sitting in that dock like Mr Qarase, facing a case that
is so riddled with contradictions and doubts as this one, would want to be
accorded the fairness and justice that is the equal right of every citizen. For Mr
Qarase, that fairness and justice, right now, is in your hands. And ladies and
gentleman, that is why, with great respect to you, we say that you can only find
Mr Qarase not guilty on all of these charges.
Tupou Draunidalo Silika Waqabitu
Counsel for Defence