Former FICAC Commissioner Barbara Malimali was given no notice of the allegations she faced despite natural justice requiring the Commission of Inquiry to clearly inform her of the aspects of her conduct being investigated, the High Court has found.
Justice Dane Tuiqereqere made the finding in his judgment quashing the COI findings and declaring the report null and void.
The judge said Malimali was a central person in the inquiry and faced obvious risks to her reputation and career, making it critical that she was afforded a significant level of transparency and participation.
Justice Tuiqereqere said natural justice required Malimali to receive details of the aspects of her conduct that the COI was specifically investigating.
She was also entitled to disclosure of all relevant information collected by the Commission, with that material provided well before the hearings began so she had adequate time to consider it.
The judge said Malimali should also have been given full access to hear and cross-examine all witnesses, rather than only those the Commission allowed her to question.
“Ms Malimali received none of the above,” Justice Tuiqereqere said.
“She was provided no notice of the allegations she faced.”
Instead, the court found Malimali and her counsel were left to work out what areas the COI intended to investigate from a large volume of material supplied only days before the hearings began.
“It was left to her and her counsel to glean from the voluminous material supplied days before the hearings commenced, as to the areas the COI intended to investigate,” the judgment states.
Justice Tuiqereqere also found Malimali did not receive full disclosure of witness evidence and was denied full access to hear or cross-examine all witnesses.
The judgment says Malimali was excluded from hearing the evidence of at least 11 witnesses.
Justice Tuiqereqere said there was also no adequate explanation for why Malimali had restricted access to hearing and cross-examining certain witnesses or why some evidence was heard in closed sessions.
These issues formed part of the court’s consideration of whether the COI had complied with the requirements of procedural fairness and natural justice before making adverse findings against Malimali.
