ALL eyes were on the judiciary this week with the scheduled sentencing of former prime minister Voreqe Bainimarama and suspended police commissioner Sitiveni Qiliho.
On Thursday, March 28, Magistrate Seini Puamau delivered a 38-page sentence, in which Mr Qiliho was fined $1500 and Mr Bainimarama was handed a non-custodial sentence with absolute discharge.
The former PM was found guilty of one count of attempt to pervert the course of justice while Mr Qiliho was found guilty of one count of abuse of office by the High Court.
Here is a breakdown of the sentence
Revisiting the evidence
Magistrate Puamau revisited the evidence, primarily the transcript of a conversation between Mr Bainimarama, then acting Police Commissioner Rusiate Tudravu and Aiyaz Sayed-Khaiyum.
It should be noted that only a section of this transcript was released publicly during the trial.
In the transcript, Mr Tudravu broached the topic of the USP investigation, to which Mr Bainimarama responded that he had “suggested earlier to Tuks to stay away from that investigation.”
The third person listed on the transcript is former attorney-general Aiyaz Sayed-Khaiyum, who asked Mr Tudravu about the nature of the complaint. He also stated there was a BDO report, which showed this was not a matter with a criminal element to it.
Mr Tudravu informed those present that he was directed to interview (the complainant) by the Director of Public Prosecutions.
Magistrate Puamau stated that Mr Tudravu had testified under oath that he took Mr Bainimarama’s words to mean that Mr Bainimarama did not want him, Mr Tudravu, to pursue the USP thing.
He had also confirmed under cross-examination that he had not been present when Mr Bainimarama had his conversation with Mr Qiliho.
Tariffs – Attempt to pervert the course of Justice
This count carries the maximum imprisonment for five years
Magistrate Puamau cited State v Waqanivatu – Sentence (2018), where Justice Paul Madigan observed that: “There is very little precedent to guide a sentencing court for this offence, but the relatively low minimum would suggest a term in the range of 12 to 36 months.”
Ms Puamau referenced the actual sentences handed down in Fiji for this offence – provided by the State – whereby those found guilty of attempting to pervert the course of justice received between six to 18 months in prison.
She also noted there were no discernible aggravating factors.
As for the mitigating factors, Magistrate Puamau listed three character references from Ratu Epeli Nailatikau, Jioji Konrote and Viliame Naupoto.
Mr Bainimarama’s medical history
A comprehensive medical report compiled by Dr Joji Malani, dated March 14, 2024, was part of the sentence.
The court was told Mr Bainimarama has had a coronary artery bypass graft with two vessel bypasses, a “maze procedure” to the left atrium to correct atrial fibrillation, a pacemaker insertion, and obstructive sleep apnea requiring CPAP machine therapy daily.
Magistrate Puamau noted that while Mr Bainimarama had improved from his 2022 major cardiac surgery, with good exercise capacity, normal blood pressure and observing medical advice regarding diet, exercise and medications, his estimated cardiovascular risk put him at high risk of further coronary events.
Thus, there was a need to carefully evaluate any potential confinement, such as placement in a cell or jail setting, and consider the potential impact on his short-term and long-term health.
Magistrate Puamau also stated that she was satisfied, on the basis of medical evidence, that imprisonment would have a gravely adverse effect on Mr Bainimarama’s health.
She noted that imprisonment would cause an egregiously high degree of hardship in that it will likely result in an incredibly diminished quality of life and potential death as a result of his history of heart trouble, his acute sleep apnea and his reliance on nightly CPAP treatment.
Suspended COMPOL still has ‘much to offer’
Magistrate Puamau outlined that while the offence of abuse of office is an “objectively serious one”, there was no evidence that Mr Qiliho had directed SSP Neiko and ASP Reshmi Dass to close the investigation file for personal gain or for the benefit of someone else.
She said all the State had established was that he issued that directive because he was concerned about duplication of processes.
Magistrate Puamau also highlighted that the evidence revealed him to be a “well-respected and respectable leader”, one who had an open-door policy and one who respected his men and women, and in turn, enjoyed their respect.
She stated that Mr Qiliho had served this nation faithfully as both a member of the Republic of Fiji Military and then, toward the latter part of his career, as Commissioner of Police.
The sentence also noted that Mr Qiliho had served Fiji since he was 18 years old.
She added that it was clear Mr Qiliho wished to continue in service to this nation for as long as this nation required such service.
Magistrate Puamau also stated that Mr Qiliho had accomplished much in his time in office and with his qualifications and accomplishment, still had much to offer yet.
“I do not buy this idea that you are forever married to the institution you separated from,” she stated in the sentence.
“As a former prosecutor I feel a bond with former and present and future prosecutors, but it does not stop me from making the tough calls even if it goes against the express wishes of my former office, its director, or colleagues that I once worked with.
“This sentence is case in point. I did not find the second defendant to be the type of man to be swayed by past loyalties and friendships into doing the wrong thing.
“I have no doubt that a conviction will have incredibly negative effects on his economic and social wellbeing; and certainly, his or her future employment prospects in his key area of specialisation and expertise.”
Takeaways from the sentence
The question of whether the offender was morally blameless, and whether this was only a technical breach of the law, was raised.
Magistrate Puamau said “yes” to both questions.
She added that the fact that the Mr Bainimarama, in his capacity as Prime Minister, had mentioned an idea to the Commissioner of Police for him to consider staying away from investigations “into the USP thing” was “hardly a serious moral violation”.
In the discrete circumstances of this case, she said it was only a technical breach of the law.
She also said the attempting to pervert the course of justice was an objectively serious offence as it can and does “strike at the very heart of the administration of justice”.
She also said this case and the surrounding media attention that went with it would no doubt, encourage leaders to be careful about the things they suggest or say to other leaders or to subordinates.
2020:
February 14 – IP Dass received instructions from ASP Rajesh to carry out investigations into the alleged case of abuse of office.
February 15 – IP Dass read through documents in file.
May 6 – IP Dass completed the statement of Doras Trail and advised her to make arrangements for witness statements.
May 15 – Statements of Ato’ese Morgan Tuimaleali’ifano and Ilima Finiasi are handed in.
June 8 – IP Dass hands CID/HO PEP 12/7/19 over to SP Loraini Seru to be sent to ODPP.
June 9 – FBC News article “Police to Investigate breach of COVID – 19 restrictions at USP protests” written by Lena Reece published.
June 17 – D/CID Neiko forwards CID/HQ PEP 12/7/19 to ODPP for advice.
June 18 – Police docket CID/HQ PEP 12/7/19 was received by the Office of the Director of Public Prosecutions for advice.
June 23 – Police docket CID/HQ PEP 12/7/19 was returned by the ODPP to CID/HQ for further investigations.
June 27 – IP Dass received CID/HO PEP 12/7/19 from MMF to complete pending tasks as raised by Ms Prasad of ODPP.
June 28 – IP Dass rang Doras Trail to make arrangements for witness statements in respect of CID/HQ PEP 12/7/19: Recorded statement of Veronica Yuen accountant of USP recorded statement of Petra Sigavata head of Section and Secretary to Council of USP Requested Sgt 3201 Avinesh to record the statement of Salaseini Malo associate manager Regional Campuses of USP. At the office recorded the statement of Ravinesh Shankar management Talent Acquisition & Management of USP.
July – SSP Mesake Waqa returns from study leave but does not resume office as DCID.
July 1 – IP Dass recorded statement of Maciu Raikoti, assistant accountant of USP in respect of CID/HQ PEP 12/7/19.
July 3 – IP Dass recorded statement of Sweetika Raniini Kumar assistant manager OD/L, of USP in respect of CID/HQ PEP 12/7/19.
July 6 – IP Dass handed over CID/HQP E P 12/7/19 to A/ASP Rajesh (MMF) for onward submission after completion of the issues raised by ODPP.
July 10 – MMF Rajesh Kumar sends CID/HQ PEP 12/7/19 to D/DEC.
July 14 – Commissioner Qiliho receives a phone call from a member of the public who said he worked for USP complaining of police harassment. Commissioner Qiliho gives the person director Ethical Standard’s number and re-directs him to that section of the Force.
July 15 – Commissioner Qiliho receives a forwarded complaint from either the Prime Minister or the Prime Minister’s office to the effect that a member of the public working at USP feared he was being subjected to police harassment because of heavy police surveillance. Commissioner Qiliho then called D/CID Seru Neiko to see if he knew anything about this case. D/CID Seru Neiko called CP Qiliho back in the presence of then IP Reshmi Dass. IP Dass also received a call later that day in respect of CID/HQ PEP 12/7/19 from Doras Traill who asked if the police were doing surveillance on Ravinesh Shankar’s house as he had raised this with VCP & HE that three vehicles from CID are doing surveillance on his house. Informed her that they were not doing surveillance on his house.
July 30 – Commissioner Qiliho leaves for study leave abroad.
August – Deputy Commissioner Tudravu takes up Acting Commissioner appointment.
August 18 – Ilima Finiasi wrote to acting Commissioner of Police.
August 25 – ACP Matavou responded to Ilima Finiasi indicating that the DPP had advised on further investigations which were being worked on. Copy sent to D/DEC for CID/HQ PEP 12/7/19.
August 31 – D/DEC returns CID/HQ PEP 12/7/19 to MMF. There is nothing in the Investigating Officer’s Investigation Diary notes or in her testimony to indicate that she received the file from him after that.
September 17 – A/COMPOL Tudravu calls ACP Biu Matavou to brief him on CID/HQ PEP 12/7/19. ACP Biu Matavou asked DCID Seru Neiko to bring him file. He briefs A/COMPOL Tudravu. A/COMPOL Tudravu attends National Security Meeting at PM’s boardroom. A/COMPOL Tudravu calls ACP Matavou after the National Security Council meeting and directs ACP Matavou to stop the investigations.
October 15 – D/DEC returns CID/HO PEP12/7/19 to MMF.
October 16 – IP Dass received the file from admin to complete the issues raised by SP Loraini Seru (DDEC)
October 17 – IP Dass rang Doras Trail to make arrangement for witnesses statements in respect of CID/HQ PEP 12/7/19.
October 19 – IP Dass recorded Statement of VCP Professor Davindra Pal Singh Ahluwalia in respect of CID/HO PEP 12/7/19
October 20 – IP Dass recorded statement of Kolinio Boila, executive director finance of USP in respect of CID/HO PEP 12/7/19. The Fiji Police Force executed search warrant for payments done for the purchase of ticket for former VCP Rajesh Chandra, uplifted documents and recorded statement of Vinod Mistri, director of Lodhias Travel Services. Requested Osea Tunidau to record statement of Anita Datt cashier at USP. Recorded statement of Fay Yee chartered accountant and lay member of council at USP in respect of CID/HQ PEP 12/7/19.
October 21 – IP Dass recorded Statement of Krishna Sami Raghuwaiya senior lecturer and secretary general at USP in respect of CID/HQ PEP 12/7/19.
2021
August – Commissioner Qiliho returned
2022
January 4 – IP Dass handed over the file to A/SP Rajesh Kumar (A/DDEC) on his verbal instructions.
January 4 – A/SP Rajesh Kumar A/DDEC forwards CID/HO PEP 12/07/19 to D/CID Mesake Waqa for filing away as directed by CIIP during the presentation of serious cases at CID/HQ and submitted due to verbal instructions by COMPOL not to carry out any further investigations.
January 6 – DCID Mesake Waqa directed that DDEC file away and update record for CID/HQ PEP 12/07/19
January 8 – A/DDEC sends case to MMF to say that it has been filed. ASP Rajesh Kumar said in open Court that he called for CID/HQ PEP 12/07/19 on the directions of CIIP Biu Matavou. He believed that it had something to do with the conversation the second Defendant had had with SSP Neiko and ASP Dass. He did not go back to CP Qiliho to check.
