Motions delay trial
28 June, 2022, 4:53 pm
The court has been postponing matters that involve peoples’ lives for these anti-corruption matters.
High Court judge Justice Dr Thushara Kumerage said this while Opposition member of Parliament Salote Radrodro’s lawyer Simione Valenitabua moved a motion in the Anti-Corruption Division of the High Court in Suva yesterday.
Justice Kumerage said the motion was the fourth such application filed to delay Ms Radrodro’s trial by the Fiji Independent Commission Against Corruption (FICAC) and matters involving peoples’ lives had been delayed because of the anti-corruption matters.
Mr Valenitabua moved a motion that Ms Radrodro’s charges and prosecution by FICAC for giving false information to a public servant and obtaining a financial advantage, contrary to Sections 201 (A) and 326 (1) of the Crimes Act 2009 be permanently stayed for abuse of process arising from the same conduct being statute barred under the Crime Act 2009.
Mr Valenitabua also moved that if the matter was not permanently stayed, the ACDHC did not have the jurisdiction to hear the matter because the offences were summary in nature and therefore should be tried in the Anti-Corruption Division of the Magistrates Court in its summary jurisdiction.
He said the defence was not challenging the earlier decision of Justice Kumerage but invoked the inherent jurisdiction of the High Court to permanently stay proceedings.
Mr Valenitabua said if there were two provisions in the same Act and one was statute or time barred, a charge could not be filed using the unbarred provision to get around the time provision and that two previous decisions in the Fijian courts had upheld this.
“The time limitation in Section 180 of the Crimes Act 2009, which is a specific charge on the conduct of making a false declaration, is covered under Section 187 which talks about the limitation period that you cannot prosecute a person or charge a person after 12 months from the date in which the offence arose,” he said.
“My client’s offence arose on June 13, 2019, so by June 13, 2020, that false declaration she could not be charged for because it was more than 12 months, under Section 187.”
Mr Valenitabua said the prosecution had the prerogative of what charge to lay, charging Ms Radrodro under Section 201 (A), which was a general provision because it talked about false information, not specific to false declaration, but the court had to look at the conduct.
“The conduct in this case is making a false declaration and that conduct has a specific charge within the Crimes Act under Section 180, which has a time limitation, you cannot bring charges outside of the 12 months.”
When asked by Justice Kumerage if the declaration carried information, Mr Valenitabua said it did, but the courts looked at the conduct, not the charges themselves.
The matter will be called today for hearing where submissions from the defence and FICAC will be made on the motion filed yesterday.