Part Two: Mahendra Chaudhry's confidential documents from DDP prosecutor on Justice Madigan's role in tax case and bid for recusal

WASU Pillay is yet to admit or deny being the informant in Chaudhry's affidavits to oust Justice Madigan from case

"I never said he gave me the USB in Labasa. What I said was he gave me the info in Labasa and the PB (Prosecution Brief) in Suva" Rajendra Chaudhry on former DDP prosecutor Wasu Pillay

Rajendra Chaudhry stands by his claims

THE RECUSAL BACKGROUND
 
MAHENDRA Pal Chaudhry was charged and presented in the Suva Magistrates Court on 23 July 2010 with offences alleged under the Proceeds of Crime Act, Income Tax Act and Exchange Control Act. The matter was transferred on the same day to the High Court by the presiding magistrate Pamila Ratnayake.

On 30 July 2010 Chaudhry appeared in the Fiji High Court before Justice Daniel Goundar. The Magistrates Court charges had been filed as Informations in the Hiigh Court the same day. In November 2010 Justice Goundar had dismissed Mahendra Pal Chaudhry's application to disqualify himself from presiding over the tax case. Chaudhry had filed an application against Goundar hearing the case on the grounds of apparent bias, and an interest in the outcome of the case.

Two years later, in July 2012, Goundar reduced the charges to Breaches of the Exchange Control Act against Chaudhry following a stay on proceedings application filed by his lawyers. However, the case was transferred for pre-trial conference before Justice Paul Madigan.

On 26 April 2013, partway through a hearing of Chaudhry's second application to quash or stay the indictment, his senior counsel Peter Williams QC, made an application for Madigian to recuse himself from proceedings on two premises. They were: (a) that Madigan had a "close association" with Counsel Ms E Yang for the State when they acted together in the investigation of the tax matters of former Chief Justice Daniel Fatiaki and (b) that Madigan was present at a workshop at the end of July 2010 at the Office of the DPP when this case was discussed and he (Madigan) made comments on it. Also present were Nazhat Shameem, Ana Tuiketei, Seini Puamau, Jasvil Singh, Wasu Pillay and the then acting DPP Aca Rayawa.

After taking time for consideration, Madigan delivered an oral, extempore ruling on the application in which he refused it. By a letter to the Court dated 10 July 2013 Williams required a copy of the oral ruling made by Madigan at the time. On 26 April 2013, in rejecting the application for recusal, Madigan provided a written ruling, stating as follows:

"I have absolutely no recollection of the "workshop" at the Office of the DPP in Gunu House in Suva. At the time I was sitting as the sole criminal Judge in Lautoka. I have no recollection of even attending a workshop in Gunu House although I do from time to time attend workshops for Legal Aid and for new practitioners at the offices of the Independent Legal Services Commission. There can be no perception of bias by that, if that is what is being alleged. I certainly have never discussed Mr Chaudhry's legal matters at any workshop. The application for recusal is refused."

On 29 July Chaudhry filed another affidavit on "the basis of matters personally known to me and on the basis of information received from others, which I believe to be accurate". He called for Madigan to recuse himself from the case. In the affidavit, he claimed: "Sometime early in April I received through a third party, a compact disc which contained a file document produced by the Office of the Director of Public Prosecutions called Prosecution Brief which was given to the third party by a former DPP Officer who was involved in the carriage of my matter at some stage. This document outlined the discussion that had taken place at the DPP's office, prior to my being charged, concerning the charges I subsequently faced."

He also stated: "I was informed and so believe that the charges I face/d were the subject of a DPP workshop, which was organized prior to my being charged, around 16-23 July 2010, by Ms Nazhat Shameem, a former judge was then reportedly a consultant to the office of the DPP."

Chaudhry claimed that Madigan attended the workshop and his tax case was exhaustively discussed and in the course of the discussions Madigan suggested that a schedule of bank accounts be included as an appendix to the Information.

These facts Chaudhry claimed had since been confirmed to him by a former senior member of the DPP's Office. He did not identify Wasu Pillay as the alleged informant.

Chaudhry added: "As I have recorded in paragraph 6 of this affidavit senior counsel raised this matter with the presiding judge at the hearing on 26 April 2013. His Lordship said words to the effect that he could not recollect having attended a workshop on this case, but he did admit that he had attended workshops conducted by the DPP's Office. Given the information that has been supplied to me and give Justice Madigan's lack of recollection (as opposed to denial that he attended the workshop) I am concerned about the implications of this term of the fairness of the trial, and at the very least the perceptions of fairness...I therefore ask that in the interests of fairness and a fair trial and the appearance of such that Justice Madigan recuse himself from these proceedings."

From left: Madigan, Grossman, Shameem and Rayawa

Puamau

On 20 August 2013 Seini Korosaya Puamau, a principal legal officer with the DPP's Office deposed an affidavit confirming that the "Prosecution Brief" was a copy of a print-out of a power-point presentation by her on 15 July 2010, in her capacity as one of two acting Principal Legal Officers of the Serious Fraud Unit of the DPP's Office, and "as such is privileged and should not be in the possession of the Applicant" [Mahendra Chaudhry].

She said she prepared the power-point presentation on 15 July 2010 in anticipation of a meeting between the then acting DPP Aca Rayawa and Clive Grossman QC, which had been scheduled for, and indeed had been held in Nadi on 19 July 2010. That according to the courtesy brief sent to her on 19 July the presenting team, the only person present during the meeting were Rayawa, then manager of the Serious Fraud Unit Tuiketei, then legal officer Wasu Pillay and Grossman.

Responding to paragraph 13 of Chaudhry's recusal affidavit, she confirmed that Madigan and other members of the Judiciary have been invited, from time to time, to attend some DPP workshops to present on advocacy and jurisprudence and/or to critique mock presentations for conduct and advocacy. "I indicate that in these instances the exercise briefs have always been drawn from completed cases", she stated.

On 22 April Chaudhry responded to Puamau's affidavit: "I wish to say that the information of Justice Paul Madigan's participation at a DPP workshop.meeting.briefing at which my case was discussed was provided by a DPP officer, who was one of the primary case handlers, and who worked with other DPP officers, in the ex parte application for others to access my tax records from FIRCA. My information is that the said DPP officer was involved in my case from its preparatory and investigative stage to my charge and indictment in the High Court. As such I have no reason to doubt his version of events."

Chaudhry added: "In reply to the disclosure in Paumau affidavit the fact that a meeting was held with Mr Clive Grossman and prosecutors in Nadi, on my charges, prior to my arraignment is itself serious as there is no evidence to suggest that Mr Grossman was retained by the Office of the Director of Public Prosecutions in any capacity at that stage."

He also argued that Paumau was incorrect in asserting that members of the judiciary had attended workshops by invitation of the DPP, to comment only on determined or completed cases. "I have information to the contrary that Ms Nazhat Shameem conducted a workshop, together with Justice Daniel Goundar, on the Peniasi Kunatuba case when the matter was still a live issue before the court."

Chaudhry also referred to Madigan's recusal ruling where he had stated that he had no recollection of even attending a workshop in Gunu House. "The above is contradicted in the Puamau affidavit in paragraph 17 wherein she says that Justice Madigan amongst others have been invited to attend DPP Workshops from time to time."

On 18 September Madigan dismissed Chaudhry's recusal bid, ruling as follows: "It is unfortunate that these hearsay allegations are not supported by evidence, for example by an affidavit of the "former senior member" of staff. The reason why, undoubtedly, is that the allegations are mendacious, perfidious and malicious and s/he would not want to perjure h/self. I have never discussed the applicant's charges with any member of the office of the DPP outside of the Courtroom, let alone made suggestions as to the composition of the Information, which would be unthinkable for a criminal Judge."

Now, the Chaudhrys' claim that the former senior DPP officer is allegedly Wasu Pillay, of Gordon & Company, Lautoka. And they have provided a letter (published previously below) to Fijileaks Insight Team that Mahendra Chaudhry wrote to Pillay on 27 June 1013: "I have been informed by my son Rajendra Chaudhry and Mr. David Toganivalu, former Deputy DPP, that you had confided to them that Judge Madigan participated actively in the workshop and even suggested that certain schedules be added to the charges as presented in the Magistrates Court...I have been informed that you attended a workshop convened by the DPP’s Office to discuss my case following the laying of charges against me in the Suva Magistrates Court on 23 July 2010.  The case was subsequently transferred to the Suva High Court..All I seek of you in the name of justice and fair play is an affidavit or a letter confirming Judge Madigan’s participation in the workshop.  Just how important is this factual bit of evidence to my case may be well appreciated by you as a member of the Bar."

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The Chaudhrys' catalogue of allegations against Pillay, Madigan, Shameem et al as claimed to Fijileaks Insight Team by Rajendra Chaudhry

• Madigan knows he was there. Wasu would never lie about it. He had no reason to tell me when he did - he was at the time with the DPP and based in Labasa
• How did I get the Prosecution Brief? Wasu confirmed in Nov 2011 in Labasa at the home of Uday Pratap - clerk to Amrit Sen
  
• He dropped off the Prosecution Brief to my office in Suva in or around April 2012. He had it saved in a USB and copied it to my laptop.
• Madigan came specifically for this briefing on 22 July 2010
• He is definitely lying. This infor on Madigan was given to me by Wasu Pillay who was handling the file in the early days. He also gave us the Prosecution Brief, where the DPP reported each step of the investigation to Khaiyum.
• The most important point is that in April ruling Madigan said he could not recollect attending the DPP workshop as in Sept he seems to have perfect memory even though Puamau contradicts him.
• Puamau had no conduct of the matter so why would she prepare the prosecution brief?

• Yes a special session was held from what Wasu told me. Puamau is being over compensatory in her response and this is strange.
• Puamau prepared it. Naz and Madigan attended and it's the same brief used in the MPC case.
• Yes and Madigan was in Lautoka High Court then. He went to Nadi to attend and that is why he in the April ruling referred to Gunu House when no one made reference to it.
• Madigan was at the meeting of 19 July.
• She (Naz) facilitated the workshop and also instructed Puamau to prepare the brief.
• It was the day before MPC was charged and Madigan was in Suva.
• Yes, Grossman also there on 19 July.
• Why was Madigan there. To brief Grossman. Madigan is good mates with Grossman.
• 19th with Madigan and 22 with DPP officers in Suva where Shameem conducted workshop. 
• New practice. Trying to curry favour with Taliban so to get government briefs. When he gave the info and the brief he was not happy with outside interference in DPP
  

ET TU BRUTE? Despite repeated requests Wasu Pillay has chosen not to deny or rebut any of the allegations sent to him by Fijileaks.

CAGED for Ten Years Without Parole: Justice Madigan jails former senior FIRCA employee convicted of money laundering $350,000 to 12 years imprisonment
 
A 41-year-old former employee of Fiji Revenue and Customs Authority convicted of money laundering involving $350,000 has been sentenced to 12 years imprisonment. During the trial, the court heard that between 1st March 2008 and 30th September 2010, Robin Surya Shyam obtained $350,000 as a result of false income tax refunds.
It was also revealed that Shyam asked friends for their bank account details so that refunds could be paid into these accounts and then withdrawn in cash and given to him.
The court heard that Shyam told his accomplices that he was owed money but did not want his wife to know about it.
Shyam’s lawyer, Filimoni Vosarogo during mitigation informed the court that his client, who is married with two children, is remorseful.
However, High Court Judge Justice Paul Madigan said that Shyam has displayed a lack of remorse throughout the proceeding and is in a state of denial as he blames one of the accomplices for coming up with the idea to generate the funds.
Justice Madigan also said that there is no trace of any of the $350,000 generated by this scheme which could be returned to the Government revenue.
Shyam is eligible for parole after serving 10 years behind the bar. Source: Fijivillage News