|Vengeful against Australian citizens: Khaiyum|
Marshall reveals that Khaiyum was behind the relentless drive by prosecutors to frame four men (one of whom was an Australian citizen) for the murder of 26 year old James Shankaran in Nausori in 2010.
The original decision was later overturned by Marshall, who caught the blunt end of Khaiyum's vindictive nature.
Marshall also reveals Khaiyum 'conspired' against a second Australian citizen, Simon Mccartney, who was later sentenced to 18 years for the death of his wife and a third person, Suva lawyer Rajendra Chaudhry.
Chaudhry was cited in a story broken by Coupfourpointfive involving the Indian national and drug smuggler, Muskan Balaggan.
In his revelations, Marshall confirms what we've known for some time: that Sri Lankan magistrates and judges are at the beck and call of the illegal attorney general.
These excertps from Marshall's petition to Voreqe Bainimarama calling for the dismissal of Khaiyum, were found at page 120 through to 131:
Particularly chilling is the following passage:-
“The Office of the Director of Public Prosecutions confirmed in a statement that Mr Macartney would be recharged once new evidence was ready.
“We will consider relaying the murder charge after the police have obtained the necessary evidence.”
It said in the statement. The DPP said, “While sensitive to the feelings of the victim’s family, it had been compelled to terminate proceedings."
"The decision was made on the grounds that there was insufficient evidence to lay the murder charge.”
No wonder the Magistrate, John Semisi said he was “baffled” that police had charged the suspect despite their investigations being incomplete. But he did not know that because Macartney was an Australian, the Attorney General was punishing him for the Australian State in removing the Attorney General’s status as an Australian resident.
250. As Document No. 79, I produce Miss Briana Vatucicila’s statement of 4th November 2007. It is strong circumstantial evidence and it has the ring of truth. This statement was taken before the issue of the nolle prosequi. The Attorney General with his lack of experience and skill in criminal law thought it was not enough to obtain a conviction. If he had read and understood all the evidence in the rest of the file and been more skilled, he would have left this evidence as it was. There was substantial circumstantial evidence; more than enough to obtain a conviction.
251. As Document No. 80, I produce Miss Briana Vatucicila’s statement of 10th November 2007 taken after the nolle prosequi had terminated the prosecution. The statement taker (Detective Sergeant Naidu) carried out his instructions from the Attorney General to the letter. Briana now said:-
“The Indian lady was lying on the road with both her legs up in the air shaking. I also saw the male person (her partner) crouching on top of her as if they were having sex but what surprised me was that the man was still wearing his blue jeans. I also recall that this man was wearing brown beach sandals….”
252. I produce as Document No. 81 the evidence in full of Miss Briana Vatucicila at the trial in 2008. There is no doubt that she delivered on her false evidence.
253. If you think that it is difficult for police in Fiji to persuade lay witnesses to bear false witness in Court, see the judgment in Senivalati Ramuwai and Rupeni Naisoro which is Document No. 52. See particularly paragraph 85 and see also paragraph 130.
254. There were five assessors at trial and they unanimously gave an opinion that Simon Macartney was “guilty”.
255. From his summing up and his judgment on sentence, it is clear that Justice Daniel Goundar did not rely on Miss Briana Vatucicila’s evidence in her statement of 10th November 2007. He relied on the strong circumstantial evidence. Evidence by Macartney that his wife had left him in Sigatoka leaving her luggage behind in the car, was particularly incredible.
256. Between 22nd October 2007 and the conviction of Simon Macartney on 4th November 2008, it was realised that the attempt to persuade Briana to give false evidence about blue jeans and sandals, was in terms of the successful framing of an accused, an exercise in incompetence. This was because at an early stage in the investigation police had seized a colour CCTV tape from “Chicken Express” in Nadi, clearly showing both Simon Macartney and his wife Ashika Lata at the time they were there on 22nd October 2007. They had printed out a number of colour photos of Simon Macartney. They showed him wearing brown cargo trousers with pockets and white canvas shoes. If shown at trial the conspiracy to give false evidence would have been exposed.
257. The conspirators were the Attorney General, Josaia Naigalevu, the DPP, Ms P Madanavosa, counsel for the DPP, and some of the investigators. On realising this, the conspirators decided to say that they had not copied or retained the CCTV tape from Chicken Express. The colour photographs were interfered with so that they were in black and white and the images were now unrecognizable in any detail. In the Appeal Court the judges said that the photos had been made “worthless”.
258. Even then the investigators faced a difficulty. At the first interview after arrest, Simon Macartney’s counsel, Simione Valenitabua, had been present. He had seen the untampered photographs. Although he did not refer to any kind of footwear being worn by Simon Macartney in the CCTV picture, he had seen that Macartney had been wearing cargo pants with pockets. The unusual steps of Defence Counsel in the course of conducting a trial, giving sworn evidence, evidence as Defence Witness 7 and then resuming his role as Defence Counsel were taken. I produce the evidence at trial of DW7 Simione Valenitabua on 24th October 2008 as Document No. 82.
259. Simon Macartney appealed and his appeal was heard by Acting President, John Byrne (presiding), Paul Madigan J A and Priyantha Fernando J A on 5th and 6th May 2010. The usual procedure is that when the appeal has been heard, the presiding judge will say, “Judgment on Notice” and the members of the Court will retire having taken the matter “under advisement”. On this occasion Mr G Reynolds QC from Australia was appearing for Simon Macartney. As I have observed, Mr Reynolds QC’s practise is, where he thinks the Court are for an acquittal, he will press for an immediate verdict. He did so on 6th May 2010. The Court retired and wrote on the same day a summary judgment. They ordered an acquittal of Simon Macartney and ordered his passport to be restored immediately. A second judgment of the Court was delivered on 24th May 2010 giving full reasons for acquitting Simon Macartney. The destruction of material evidence which might has acquitted Simon Macartney, is the reason for the acquittal. I produce as Document No. 83 the Court of Appeal judgments of 6th May 2010 and 24th May 2010 as if they were one exhibit. In my opinion, in view of the seriousness of the charge, the Court of Appeal should have ordered a retrial subject to conditions over evidence. Simon Macartney’s passport should not have been returned.
260. The Attorney General was so upset that on 10th May 2010 Ms Madanovosa filed a motion to the Court of Appeal for an order to prevent Simon Macartney from leaving Fiji until the time for the State appealing to the Supreme Court expired. Earlier on the 7th May 2010 an appeal by the State was filed in the Supreme Court by the new Acting Director of Public Prosecutions Mr Aca Rayawa. Neither the appeal nor the motion was ever heard. The reason is that Simon Macartney cannot be served in or extradited from Australia. The irony of it is that the Attorney General’s persuading of Briana to give false evidence has resulted in Simon Macartney, who would and should have been found “guilty”, being finally acquitted.
261. The Attorney General dismissed Josaia Naigalevu as DPP and appointed Aca Rayawa in his place. Josaia Naigalevu had “crossed” the now Attorney General in preferring Daniel Goundar for promotion in the office of the DPP some years before. Now he was blamed for the material mistakes in the “false evidence” conspiracy that lead to Macartney’s acquittal. So there were two strong reasons for his dismissal. Now Josaia Naigalevu is “in exile” in a government appointment in the Solomon Islands. The fate of Mr Naigalevu for failure was intended also to be a warning to Aca Rayawa. Failure to do what is requested results in dismissal; failure to achieve what the Attorney General has requested also results in dismissal.
262. The Court of Appeal’s acquittal of Macartney also resulted in final notice for Acting Vice President John Byrne in a decision taken on or about 6th May 2010. The return of Macartney’s passport on that day would have been regarded as unforgivable. On or about the same day the Attorney General unblocked his veto on my appointment which was made on 4th June 2010. The Attorney General did not want me to be appointed. But he had to have someone appointed in John Byrne’s place so I was appointed after a six month delay.
263. After the escape of Australian national Macartney, the Attorney General did not have long to wait before another ordinary person with Australian residency rights, Zafir Tarik Ali was highlighted to the Attorney General as someone who could be punished as a proxy for the Australian State who had removed the Attorney General’s Australian residency status. In January 2010 James Nair chose to jump instead of being questioned. He died. The police charged manslaughter. Although there was no case for manslaughter, Aca Rayawa took a conservative view, that there being no system of coroner’s inquests in Fiji, the non-natural death should proceed to trial on manslaughter. Then in June 2010 the Australian Government having seen the evidence, made representations on behalf of Zafir Tarik Ali whose wife and family in Australia were in despair not least because they lost their income when he could not, being in Fiji, attend to his employment in Australia.
264. At paragraphs 247 and 248 I have set out what the Attorney General did in Macartney with the motive of taking revenge on the State of Australia for revoking his residency status. Given the irrationality and the out of control intended behavior, I said that if he had come to you for approval for what he was intending to do, you would have dismissed him. In the case of Zafir Tarik Ali and three others it is much worse. For one thing the Attorney General would be proposing to charge four accused with murder when there was “no case” on the lesser charge of manslaughter. Even the DPP after advice was satisfied that it could be no more than manslaughter. In Macartney there was a strong case for murder which the Attorney General wished to falsely “improve” with new evidence. In Zafir Tarik Ali his proposal was to frame for murder where there was no evidence at all. Secondly, the proposal was not only to frame one out of four who had Australian residency, it was to frame also three innocent Fijian citizens for a murder which did not happen. If the Attorney General had been asked about that he would have said:-
“The need is for revenge on Australia because of my loss of residential status. I would prefer it if only Zafir Tarik Ali had been charged with manslaughter. These three Fijians must also be convicted of murder if I am to ensure the conviction of Zafir Tarik Ali who has the Australian residency status. Sometimes to achieve the result there is “collateral damage”. Think of these three and their convictions for murder as necessary “collateral damage”. “
265. Your reaction would be the same as that set out at paragraph 248 but more so.
266. The reaction of Aca Rayawa and Ms Cokanasiga would be the same as yours. As career prosecutors they are not “political”. While they might turn a blind eye to investigators “improving” the evidence when everyone was sure of guilt, they would not set about framing innocent persons of murder where there was no evidence. They would not regard personal or political reasons as sufficient to prosecute any person against whom there was no evidence of murder.
267. But both Aca Rayawa and Ms Cokanasiga knew about the Attorney General’s actions in Macartney. They also knew that Josaia Naigalevu had paid the price for the incompetent execution of false evidence which had lead to the acquittal of a guilty man. They knew that only a few weeks before, the Attorney General was enraged at the return of Macartney’s Australian passport. They knew that both cases were “run of the mill” homicides, which would never cross the desk or come to the attention of the Attorney General, if Macartney had not been an Australian citizen or if Zafir Tarik Ali had not been recently exposed as an Australian resident. They had no choice but to agree because they knew that if they refused they would be dismissed. They knew also that if they failed to achieve the objective of the Attorney General they would be dismissed. By the time the appeal was heard they were both dismissed on account of their failure to deliver what the Attorney General required. By the time of my ruling on 9th September 2010 describing their appeals as having chances of success “better than even” the Attorney General knew he would fail. Shortly thereafter they were both out of office.
268. The third conspiracy, based on false evidence for reasons of revenge, was the framing of me as a dishonest and corrupt judge who must be punished. That took place about 13 days after my lead judgment was delivered in Zafir Tarik Ali and others. The conspiracy involved the Attorney General acting personally. I was to be punished for acquitting in the Court of Appeal, a man, Zafir Tarik Ali, whose appeal I was supposed to dismiss because he had Australian resident status.
269. This third event is as irrational as the conspiracies in Macartney and in Zafir Tarik Ali.
270. The fourth irrational event involves the Attorney General acting to achieve the conviction for rape of one of his oldest enemies, one Rajendra Chaudhary. Last year there was a report that an alleged drug smuggler Ms Muskan Balaggan had been raped by her lawyer, Rajendra Chaudhary. When an appeal against refusal of bail for Ms Balaggan came before the Court of Appeal on 15th September 2011 her allegations on the file were that the Attorney General had intervened and wished to assist her in convicting Rajendra Chaudhary. The Court ignored this. But an Attorney General who does such things corruptly because he requires revenge and enjoys exercising personal power, is wholly unfit to hold office. I produce the judgment of the Court of Appeal in Muskan Balaggan dated 15th September 2011 as Document No. 84. Having discussed irrational use of power by the Attorney General there is a possibility that such conduct is related to a major decision in April 2009 to ensure that all judges would give judgments in favour of what the Attorney General wanted. I now discuss the Attorney General’s decision to make all the judges subservient to his will.
271. I submit that the evidence and documents support the following propositions:-
(1) That in 2007 and 2008 the Attorney General felt constrained to follow the policies of the Prime Minister and Madam Justice Nazhat Shameem. In particular the Charter of Rights, the establishment of FICAC and the Independent Legal Services Commission. Also the legislation to ensure that all were Fijians and that after five years residents could acquire citizenship. (All of this aimed at an inclusive society in Fiji.)
(2) The Attorney General abused power irrationally in the Macartney case in 2007. With the launch of proceedings in Vergnet SA in 2008 he was expecting the judges to forfeit integrity and independence. With the appointment of Sosefo Inoke he set up an arrangement for corrupt pro-Executive judgments to order.
(3) Before the Australian imposed judgment in Qarase of 9th April 2009, the had not been an Australian citizen or if Zafir Tarik Ali had not been recently exposed as an Australian resident. They had no choice but to agree because they knew that if they refused they would be dismissed. They knew also that if they failed to achieve the objective of the Attorney General they would be dismissed. By the time the appeal was heard they were both dismissed on account of their failure to deliver what the Attorney General required. By the time of my ruling on 9th September 2010 describing their appeals as having chances of success “better than even” the Attorney General knew he would fail. Shortly thereafter they were both out of office.
(4) The Attorney General used the crisis of 9th April 2009 to gain the increase in personal political power that he wished for. By persuading you and the Military Council to abrogate the Constitution and dismiss all the High Court and Appeal judges, his intention was to subsume the judiciary within the Executive and under himself. He intended a judiciary corruptly favouring the Executive view in every case. He intended to completely undermine the judiciary; as an institution vital to the creation of an inclusive government in Fiji, the judiciary would be comprehensively and completely undermined.
(5) The Attorney General agreed with Anthony Gates C J to recruit exclusively from Sri Lanka where the judiciary has a history of supporting the Executive. Anthony Gates C J had strong connections there. Anthony Gates C J was told that Sri Lanka judges would maintain judicial independence when sitting in Fiji. This was untrue. The Attorney General’s intent was that Sri Lankan judges would understand what was required by him and would deliver it.
(6) Anthony Gates C J understood that local judges of the same mind as Justices Shameem, Byrne and himself would retain judicial independence and complete integrity. Such judges would be persons minded to support the need for the present government and its inclusive policies. The Attorney General did not intend this to happen. He foresaw that in a short time any judge who preserved their independence and integrity would be either terminated in office or intimidated into conforming.
(7) Anthony Gates C J before agreeing to accept re-appointment held out does such things corruptly because he requires revenge and enjoys exercising personal power, is wholly unfit to hold office. I produce the judgment of the Court of Appeal in Muskan Balaggan dated 15th September 2011 as Document No. 84. Having discussed irrational use of power by the Attorney General there is a possibility that such conduct is related to a major decision in April 2009 to ensure that all judges would give judgments in favour of what the Attorney General wanted. I now discuss the Attorney General’s decision to make all the judges subservient to his will.
A dependent judiciary dominated by the Executive in all its decisions. The events following 9th April 2009
(8) By July 2010 Justice Priyantha Fernando demonstrates that Sri Lankan judges will perform as expected by the Attorney General. He convicts in Zafir Tarik Ali and others and four innocent persons are convicted of murder. The creation of false evidence by the DPP as required by the Attorney General was critical to this result. The second factor was the trial judge’s convicting as required by the Attorney General.
(9) On about 6th May 2010 the Attorney General stops blocking my appointment as Resident Justice of Appeal. His only reasoning is that it was more important that Acting President Byrne be terminated after the judgment in Macartney, than that the blocking of my appointment be continued.
(10) On 15th March 2011 the Attorney General frames a false and defamatory allegation which if it succeeds will end my career as RJA. On 12th September 2011 the Attorney General’s facts in a sworn affidavit are found to be false evidence by three judges. I am vindicated. The Sun newspaper reports nothing. The Times in a report of 13th September 2011 (produced as Document No. 85) does not state that Kolinio Waqa’s evidence was found to be false.
(11) In early April 2012 I am not renewed. Very shortly after, Justice Temo is intimidated by my non-renewal. He prefers keeping his office to continuing with judicial independence and integrity. By this time Acting President Calanchini and Anthony Gates C J have become agents of the Attorney General in the Judiciary.
Attorney General was looking for an opportunity to increase exponentially his personal political power. He also wished to supplant and outgrow the influence of Madam Justice Nazhat Shameem and of Anthony Gates C. J.Useful links to background Marshall's revelations
Four men framed for murder by prosecutor and pathologist are acquitted by Appeals Court
Simon McCartney jailed for murder
Fiji's illegal attorney general implicated in plot to charge former PM's son with rape
More knots to unpick in Balaggan case
Editor's Note: The full copy of Marshall's petition with the correct order of pages can be found at http://fijigirl.wordpress.com/2012/09/19/the-marshall-petition-with-correct-page-order/