Justice Dane Tuiqereqere has found that former FICAC commissioner Barbara Malimali appeared to have received less favourable treatment than other key participants during the Commission of Inquiry into her appointment, creating a “genuine perception of unfairness and bias”.
In his judgment, Justice Tuiqereqere examined Ms Malimali’s treatment during the COI hearings, noting her claim that she had been treated as though she was on trial.
“Ms Malimali was obviously the central focus of the inquiry and there would have been legitimate reason for the Commissioner to be particularly interested in her conduct,” Justice Tuiqereqere said.
“However, Ms Malimali was treated as if she was the subject of disciplinary proceedings.”
The judge noted that on December 13, 2024, the COI wrote to the Chief Justice seeking Ms Malimali’s suspension as FICAC commissioner until the inquiry had concluded.
Justice Tuiqereqere also found that during the hearings, some participants appeared to receive more favourable treatment from Commissioner Justice David Ashton-Lewis.
“During the COI hearings it appears that the Commissioner provided more favourable treatment to other witnesses, such as social media activist Ms Alex Forwood and former FICAC acting commissioner Ms Frances Puleiwai, than Ms Malimali,” he said.
He said Ms Forwood, Ms Puleiwai and their overseas lawyer appeared to have greater access to hearings and witnesses than Ms Malimali and her lawyers.
Justice Tuiqereqere said this was particularly concerning because Ms Malimali was central to the inquiry and later faced the harshest criticism in the COI report.
“That Ms Forwood and Ms Puleiwai and their counsel had more access than Ms Malimali is, therefore, difficult to understand,” he said.
“This uneven treatment creates a genuine perception of unfairness and bias.”
The judge gave the Prime Minister’s evidence as one example, noting that Ms Forwood was among those permitted to cross-examine the Prime Minister on January 6, 2025, while Ms Malimali was not.
