AN application filed by assistant DPP Laisani Tabuakuro for a commission to hear evidence from Fiji Airways CEO Andre Viljoen was declined by the Nadi Magistrate’s Court yesterday.
The case involves former attorney-general Aiyaz Sayed-Khaiyum, former Fiji Airways executive Shaenaz Voss, airline general manager Sharun Ali and Fiji Airlines T/A Fiji Link.
The accused face 66 charges related to the unlawful carriage of a firearm on an aircraft. In his ruling, Magistrate Semi Babitu said the main issue of contention was whether the parties’ consent was necessary to move for the commission.
The court was told the counsels for the first and second accused consented to the application while the counsels of the third and fourth accused objected.
Mr Babitu said the discretion was upon the court to ensure that in order for it to grant such an application, it must be exercised fairly and justly in the interests of the administration of justice.
“When a judge or magistrate is satisfied with the two factors noted above, he or she may, with the consent of the parties, issue a commission to any magistrate within their locality to take the evidence of the witness,” Mr Babitu said.
“The process of the commission is similar as if the trial was proceeding in a court. Further, the parties to the commission may forward written questions which the judge or magistrate may keep relevant to the issue and the magistrate conducting the commission shall forward the written questions to the witnesses.”
Mr Babitu said the prosecution stated Mr Viljoen was one of the most important witnesses and that he was about to finish off his contract with Fiji Airways by the end of September, therefore, it was crucial that his evidence be taken.
“If the application is granted, it will cause a miscarriage of justice. The risk associated with witnesses is everywhere. There is no consent from the parties.”
Mr Babitu said proceedings with the commission would not allow for a fair trial.
“This court has the discretion on whether or not to issue a commission based on the consent of all parties involved,” he said.
Mr Babitu said this meant that if one or two of the accused persons objected to the commission, the court could not proceed further.
The matter has been adjourned to September 26 for pre-trial conference hearing.