The High Court in Suva has ruled that the Fiji Independent Commission Against Corruption does not require the prior consent of the Director of Public Prosecutions to institute a charge of conspiracy to defraud.
Justice Usaia Ratuvili delivered the ruling on August 25 in the case involving Pauliasi Tabualevu Bainivalu and Shiu Raman, who are facing several charges brought by FICAC.
The first count alleges that Bainivalu and Raman conspired between January 2014 and July 2019 to dishonestly obtain a gain of $370,061.39 from the Nasinu Town Council. They have pleaded not guilty.
Raman’s counsel raised a preliminary objection, arguing that the conspiracy charge was procedurally invalid because FICAC had not obtained the DPP’s consent.
The defence relied on section 49(9) of the Crimes Act 2009, which states that proceedings for an offence of conspiracy require the consent of the DPP. It argued the absence of consent amounted to a fundamental defect and sought to have the first count struck out or dismissed.
FICAC opposed the application, arguing that its own legislation specifically gives it authority to prosecute conspiracy to defraud and allows the FICAC Commissioner to institute proceedings without DPP consent.
Justice Ratuvili agreed.
“The FICAC Act 2007, is very clear that FICAC has the authority to prosecute Conspiracy to Defraud in the name of the FICAC Commissioner,” Justice Ratuvili said.
“The Commissioner also does not need to obtain the consent of the DPP to file any charges listed in section 2A of the FICAC Act 2007.”
The court ruled that the conspiracy charge was properly before it and refused the application to dismiss or sever the count.
Justice Ratuvili concluded that “FICAC has the jurisdiction to institute charges for the offence of Conspiracy to Defraud in the name of the FICAC Commissioner and does not require the prior consent of the Director of Public Prosecutions to file these charges.”
The court said the matter would now take its own course.
