IN THE HIGH COURT OF FIJI AT SUVA CRIMINAL JURISDICTION

Criminal Case No. HAC 27 of 2007

BETWEEN:

FIJI

INDEPENDENT

COMMISSION

AGAINST Complaint

CORRUPTION

AND:

LAISENIA QARASE

Accused

________________________ CLOSING SUBMISSIONS FOR THE DEFENCE Contents:

A. INTRODUCTION THE CASE IN PERSPECTIVE The case in perspective The abuse of office charges The administrative duties charges B. THE CHARGES FICAC must prove all the elements How the charges are made up The common factor in all the charges - employed in the public service Abuse of office applying for shares charges (1, 3 and 5) Abuse of office facilitation charges (2,4 and 6) Abuse of office special property charges C. CONCLUSION Paragraph

1-3 4-24 25-31 32-33 34 45-46 47-68 69-99 100-118 119-131

IN THE HIGH COURT OF FIJI AT SUVA CRIMINAL JURISDICTION

Criminal Case No. HAC 27 of 2007

BETWEEN:

FIJI

INDEPENDENT

COMMISSION

AGAINST Complaint

CORRUPTION

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

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.

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 Naiveli1. 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 Sorovakatini2. 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 Kubunavanua3. 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 2

Naiveli v State [1995] CAV 001 of 1994, Supreme Court, 23 November 1995 State v Sorovakatini [2007] HAC 18 of 2005, High Court 3 Kubunavanua v The State [1993] AAU 008 of 1992, Court of Appeal, 5 May 1993

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

know that the other two companies were owned by the people of Cicia and Mavana. These are people Mr Qarase was helping. He was charging them nothing. He was paid nothing.

11.

We know of course that Q-Ten Limited and Mrs Qarase have shares in

Mavana Investments Limited. These are shares they have bought and paid for, like every other shareholder of Mavana. At 10% dividend per year, Mrs Qarase would get $800 from these shares and the Q-Ten shareholders would get $4,800 from these shares today. This is quite good money, but it is not huge riches. And you would expect it of any couple who have lived their lives and worked as Mr and Mrs Qarase have done, especially with Mr Qarases career. You would expect them to have savings or investments. And those savings or investments produce income every year. This is not millions of dollars. This is a modest return from investing. Many other families have invested in the same way over many years - maybe in Unit Trust of Fiji, or shares in ATH4, or even a term deposit at the bank.

12.

But how did these three companies Mavana, Cicia, Q Ten - get their

shares? Why do they get dividends? Did Mr Qarase give them out at a special price? No. Did he steal them? No. Is it because of corruption or abuse of

Amalgamated Telecommunications Holdings Limited.

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.

16.

So what are we left with? We are left with the allegation (that is all it is)

that Mr Qarase did not declare his interest in that Fijian Holdings Limited board meeting. That is all.

17.

Now, as I said in our opening speech, if you are a company director and

you do not declare your interest in a board meeting, you can be fined up to $1,000 under the Companies Act5. That is it. No prison, no other punishment. FICAC has not charged Mr Qarase under the Companies Act. Instead, FICAC has tried to build up this a huge case around this one allegation.

18.

FICAC says that Mr Qarase was an adviser to the Fijian Affairs Board,

and to the Great Council of Chiefs, and he had duties to the provincial councils, and the tikina councils, and all indigenous Fijians, and so on and so on. As we say in Fiji, what has this got to do with the price of fish?

19.

I will tell you why FICAC is saying all of this. Because to prosecute Mr

Qarase for abuse of office, FICAC has to prove that Mr Qarase was a person employed in the public service. It has to prove that he was like a civil servant who abused his office.

s.201

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.

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.

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.

30.

I want to pause here and review what we have said, because from here

we will get more technical. This whole case is down to this. Mr Qarase is on trial because while he was a FHL director he applied for some shares in FHL on behalf of others, and those persons received those shares. Then, he performed his duties as a director of FHL: just like other directors at FHL whose companies also had shares just like Mr Weleilakeba, whose company also had shares. He did not hide anything from anybody.

31.

For this, if Mr Qarase is convicted, he could go to jail. And that is why

we say it is not right to convict him.

B.

THE CHARGES

FICAC must prove all the elements

32.

Now we have to get more technical. We will now work through each of

the critical parts of the charges with you. Now it is up to you to decide if the evidence is good enough to convict.

33.

Now I will go through each part of the charges the lawyers call them

the elements - to see if the prosecution has proven all the elements. All the

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.

- 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

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 merely the 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

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

- 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 fail6.

Refer paragraph 36. The definition is cumulative.

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

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 again7. 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 act8 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 8

covered paras 35-46 State v Naiveli, High Court Criminal Case No 12/95, cited in State v Vakaloloma [1993] FJHC 93

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?

55.

But even then, why should Mr Qarase disclose anything to FAB anyway?

Think about it. I am Mr Qarases adviser. Q-Ten has shares in Mavana Investments. What if I too want to buy shares in Mavana Investments? I am under no duty to tell Mr Qarase. I have shares, he has shares. It has nothing to do with my relationship to him as his adviser. There is no law that says I must tell him anything. And Mr Qarase was under no legal duty to tell FAB anything.

Third element abuse of office

56.

Third element abuse of office. Now let us stop and think about this.

What office, and what abuse?

(a)

Did Mr Qarase abuse his authority as FHL director? There was no rule

that a FHL director cannot apply for shares. In fact, the opposite was true. There is plenty of evidence that shows that directors and senior executives could apply for shares. FHL at the time was desperate for them to apply. Mr Mar and Mr Weleilakeba gave clear evidence on this.

(b)

Did Mr Qarase abuse his authority as FAB adviser? Well, we heard from

Ratu Meli Bainimarama and Ratu Timoci Vesikula that Mr Qarase was an adviser only. He did not have any power at FAB. He gave advice to FAB. FAB could take the advice or reject it. Mr Qarase could not give orders. So Mr

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

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

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 this 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

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

- 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

71.

First one employed in the public service. We have already made our

points on this9. 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 it10. 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.

10

Paragraphs 35-46 Paragraph 49

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

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.

83.

Well, that is not good enough - and it is obviously not true. You saw the

minutes they are mostly only two or three pages. If the only things that happened in the board meeting were in the minutes, the meeting would be over before they could bring in the tea and biscuits. Remember Mr Mars evidence meetings went for 1-2 hours or longer. Remember Mr Mars evidence lots of things happened in those meetings that Mr Weleilakeba did not record. Remember Mr Mars evidence Mr Lyle Cupit, the chairman, only wanted short minutes. Mr Weleilakeba agreed that Mr Cupit only wanted short minutes. That means he did not write everything down.

84.

So Mr Weleilakebas evidence is plainly wrong. Not everything that

happened was in the minutes. They were only short minutes. So what does that mean? That means that 20 years ago, things were said in that meeting that Mr Weleilakeba has not recorded. Mr Mar has already said he declared his interest for the Nabuabua shares and Mr Weleilakeba did not record it. How many other things did Mr Weleilakeba leave out?

85.

We are not asking Mr Weleilakeba to have a perfect memory. Nobody

has a perfect memory after 20 years. That is why we say that these charges are dangerous and FICAC should never have brought them. But what we are saying is, that it is possible that Mr Qarase declared his interest. Mr Weleilakeba would not know. He cant rely on his minutes because they are unreliable.

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 matters - 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?

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 Act11 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

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

(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

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 before12. 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 you13, 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 13

Paragraphs 61-68 Paragraph 65

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.

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 Caribbean14. 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

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

badly, or the economy goes down and your customers dont have money, you can go bankrupt. Investing is risky. So of course you want to manage the investment - because that is how you manage your risk. In this case, FICAC wants to turn this into a crime.

108.

So, once again, let us go through the elements of each of these three

offences. There are five: - 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.

109. Now, under these charges, you are not prevented from doing your ordinary duty. You must discharge a duty in some special way towards that particular property in which you have a private interest.

110. So in the way we all now know how to do this, let us go through the elements:

First element employed in the public service.

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

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.

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.

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.

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.

114. Mr Qarase did not do this. He had an interest in Mavana and Q Ten as shareholders. But he did not deal with them in any way which favoured them. He did his duty as a director. He met his responsibilities. He did not abuse his responsibilities in any way. He did not favour the property in which he had a private interest.

115. Mr Qarase was a director, so he decided what dividends Fijian Holdings paid to Class A shareholders. But those dividends were paid to all Class A shareholders. FICAC will tell you that in so many of those shares Mr Qarase had an interest. They will tell you that there were 800,000 shares in which Mr Qarase had an interest. But:

400,000 of those shares were Cicia shares. Mr Qarase made no money from Cicia and he asked for none.

200,000 of those shares were Mavana shares. Only Mrs Qarase had a small interest in Mavana back then.

200,000 shares were Q Ten shares. Those interests were held by Mr Qarases family. So what was his real personal interest? It was a fraction of those 800,000 shares.

116. And everybody forgets that when you invest in shares, you risk losing everything. Everybody forgets that 20 years ago, when Fijian Holdings was just

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

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

reasonable doubt. Our system of justice works on the basis that the accused person must be convicted only if that standard beyond reasonable doubt is met. There is a well-known phrase, better ten guilty men go free than one innocent man be convicted. That is how important is the standard beyond reasonable doubt. An innocent man must not be convicted.

123. There is another phrase, though, which I think is important, and which judges and lawyers use on appeals. It is called safe to convict. Some convictions are overturned on appeal. This is because appeal court judges think that the conviction is unsafe. And I think you should be asking yourselves:

- in view of all the doubts you must now have - in view of the fact that nobody has questioned Mr Qarases basic honesty they say only that he failed to speak up at a board meeting - in view of the fact that FICAC can only try to claim a breach some legal technicalities

whether it is really safe to convict Mr Qarase on these very strange charges that have been brought against him.

124. I will not lecture you on your duty as assessors as Judges of fact. I would just remind you about the need to bring to these proceedings an impartial,

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?

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

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 Counsel for Defence

Silika Waqabitu