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 Fijileaks: We Have the Transcript and Audio Recording of the Events of 5 September 2024. We Will Release Both for the Public to Hear, Read and Decide for Themselves |  |
The COI drew adverse conclusions from the events at FICAC. Justice Dane Tuiqereqere quashed those findings. The Fiji Court of Appeal may now have to decide whether the High Court corrected an unlawful process or improperly reassessed evidence that belonged to the Commission. Why revisit four affidavits placed before a Commission of Inquiry whose report has now been declared unlawful, null and void?
Because the affidavits help readers understand three separate legal questions: (1) What evidence was available to the COI concerning Wylie Clarke’s and Laurel Vaurasi’s attendance at FICAC on 5 September 2024? (2) How did Justice Dane Tuiqereqere treat the COI’s use of that evidence? (3) What, if anything, can the affidavits contribute to an appeal before the Fiji Court of Appeal?
This is not an attempt to revive quashed findings through media commentary. Nor is it an allegation that any of the four deponents committed perjury.
It is an examination of conflicting sworn evidence and the different legal functions of a commission of inquiry, a judicial-review court and an appellate court.
The COI’s function was to investigate and draw findings.
The High Court’s function was to review the legality and fairness of that process.
The Court of Appeal’s function, if the relevant issues are properly appealed, will be to determine whether Justice Tuiqereqere made an appeal error in reviewing the Commission.
Those three institutions do not perform the same task.
The four affidavits
Four sworn accounts are relevant to the dispute over who represented Barbara Malimali and why the lawyers attended FICAC. They are the affidavits of Wylie Clarke; Barbara Malimali; Amani Bale; and Laurel Vaurasi. The affidavits do not present one unified account. They divide broadly into two competing explanations.
Clarke and Vaurasi maintain that Clarke and Vaurasi attended in an institutional capacity for the Fiji Law Society.
Malimali and Bale used language capable of supporting the proposition that Clarke, and possibly Vaurasi, acted personally for Malimali.
That division is not necessarily proof that anyone lied. Different witnesses may have understood the roles differently, or the lawyers’ capacity may have changed as the events unfolded.
But the conflict was real and required evaluation.
Clarke’s affidavit
Clarke expressly denied being Malimali’s legal counsel: “I have never acted for, taken instructions from or been engaged as legal counsel by Ms Malimali.” That was a categorical denial of a conventional solicitor-client relationship. Clarke also acknowledged that he had telephoned Malimali to congratulate her on her appointment as FICAC Commissioner.
There was nothing inherently improper about a Fiji Law Society president congratulating a senior practitioner appointed to an important public office.
But the call was evidentially relevant because it established direct contact between Clarke and Malimali before she sought his assistance following her arrest.
The question was not merely whether Clarke possessed a written retainer. It was whether, through words and conduct, he provided personal legal assistance to Malimali or acted solely as the institutional representative of the Society.
Malimali’s affidavit
Malimali stated: “I asked to make a call to my lawyer. I called Mr Wylie Clarke…”
She said Clarke had earlier called her from a Digicel number. After her arrest, she called that number, told him that she had been arrested by her own officers and asked him to contact the Chief Registrar. She believed she may also have asked him to contact the Commissioner of Police.
Malimali also asked Clarke to come to FICAC and assist her. Her affidavit therefore provided direct evidence that she personally sought Clarke’s assistance; she described him as “my lawyer”; she asked him to involve senior public officials; and his attendance followed her request. It remains possible that Malimali used “my lawyer” informally. She may have meant a lawyer she trusted rather than a solicitor already retained under a formal agreement.
But her description was relevant evidence. It could not be dismissed merely because Clarke denied being formally engaged.
Bale’s affidavit
Amani Bale stated: “Mr Clarke introduced himself together with Ms Laurel Vaurasi as lawyers for Ms Malimali.” If accurate, Bale was not simply expressing his own assumption. His affidavit concerned how Clarke allegedly presented himself and Vaurasi at FICAC.
That account conflicted directly with Clarke’s denial and Vaurasi’s institutional explanation. The relevant questions included:
- What words did Clarke actually use?
- Was the introduction captured on the recording?
- Did Bale accurately recall it?
- Did “lawyers for Malimali” mean formally retained counsel?
- Was Clarke speaking for himself and Vaurasi?
- Did Vaurasi hear or adopt the alleged introduction?
- Was Bale describing legal representation or simply the practical alignment of those present?
Bale’s account supplied evidence supporting the proposition that Clarke and Vaurasi were acting for Malimali. It did not, standing alone, prove that proposition.
Vaurasi’s affidavit
Vaurasi gave a detailed account supporting the alternative institutional explanation. At paragraph 13, she stated that Clarke contacted her: “…to accompany him to the FICAC Suva Office that morning, for and on behalf of the Society.” At paragraph 15, she explained that she believed the Society became involved because Malimali’s arrest and the procedures surrounding it raised a rule-of-law issue. At paragraph 16, she said: “…it became apparent that Ms Barbara Malimali had her own defence counsel(s) in attendance.”
Vaurasi did not identify those defence lawyers in that paragraph. It would therefore be unsafe to attribute the role to particular individuals solely on the basis of her affidavit. At paragraph 17, Vaurasi described Clarke and herself as “representatives of the Society”.
She said the meeting involved Chief Registrar Tomasi Bainivalu, Clarke and herself as Society representatives, Acting Deputy Commissioner Francis Puleiwai and other FICAC officers.
At paragraph 18, she identified the legal issue discussed: whether Puleiwai, as Acting Deputy Commissioner, had authority to arrest the newly appointed Commissioner. At paragraph 19, Vaurasi confirmed that Malimali was not present at the meeting and was released after it ended.
Vaurasi’s evidence therefore materially supported Clarke’s explanation. It could not fairly be treated as a bare denial without supporting detail.
What the four affidavits actually established
When read together, the affidavits established several matters that were either common ground or supported by more than one account:
- Clarke had direct telephone contact with Malimali.
- He congratulated her on her appointment.
- Malimali contacted him after her arrest.
- She asked him to come to FICAC.
- Clarke contacted Vaurasi and asked her to accompany him.
- Clarke and Vaurasi attended the FICAC office.
- Malimali was not present during the lawyers’ meeting with the FICAC officers.
- The meeting examined the legality of her arrest.
- Malimali was released afterwards.
The unresolved dispute concerned the capacity and purpose of the participants:
- Did Clarke attend as Malimali’s lawyer?
- Did Clarke and Vaurasi attend solely for the Fiji Law Society?
- Did their institutional role overlap with personal assistance to Malimali?
- Who were the separate defence counsel mentioned by Vaurasi?
- Did Clarke introduce himself in the terms attributed to him by Bale?
- Was the purpose legitimate legal intervention or pressure upon investigators?
The affidavits alone could not answer all those questions. They had to be assessed alongside the contemporaneous audio recording, transcript and oral evidence.
The importance of the Saumi recording
FICAC invetigating officer Kuliniasi Saumi’s recording was crucial because it captured what participants said during the meeting rather than relying exclusively upon later recollections.
Clarke was reportedly recorded arguing that Malimali was now the substantive Commissioner and that FICAC officers were required to follow her direction “right or wrong”. He asked what they would do if she directed them to stop.
He also warned that continuing could produce a confrontation between FICAC and the courts and undermine public confidence in the justice system.
Bale was recorded seeking Malimali’s immediate release, warning investigators that their actions could damage their careers and asserting that the courts would not accept the contemplated charges.
Vaurasi reportedly questioned the legality of the arrest and warned the officers that FICAC risked operating outside the law.
The recording did not automatically prove criminal obstruction.
Lawyers are entitled to challenge arrests, question statutory authority, warn officials about legal consequences and seek the release of a detained person.
The legal character of the intervention depended upon context, intention and the meaning reasonably conveyed by the participants’ words.
But the recording allowed the COI to examine whether the institutional explanation advanced by Clarke and Vaurasi was consistent with what they actually said and did.
How the COI treated the evidence
The COI examined the 5 September meeting as part of the events surrounding Malimali’s appointment, arrest and attempted assumption of authority at FICAC.
Its concern extended beyond whether Clarke possessed a formal retainer. It examined:
- how Clarke became involved;
- why Malimali contacted him;
- why he contacted Vaurasi;
- whom the lawyers represented;
- what they said to the investigators;
- whether Malimali’s appointment was invoked to stop the investigation;
- whether the officers were threatened or improperly pressured; and
- whether the participants acted independently or in concert.
The Commission appears to have attached considerable weight to Malimali’s description of Clarke as “my lawyer”; her request that he come to assist her; Bale’s account of Clarke’s alleged introduction; the participants’ statements captured in the recording; the demand for Malimali’s release; and the warnings concerning judicial and professional consequences.
It ultimately reached serious adverse conclusions about the collective intervention and considered Clarke’s conduct sufficiently concerning to warrant independent investigation for possible obstruction or perversion of the course of justice.
That was not a criminal conviction.
The COI had no power to determine criminal guilt or impose punishment. Any prosecution would have required an independent investigation, admissible evidence and a prosecutorial decision.
The Commission’s finding was nevertheless grave. It required a rational evidential foundation and strict observance of natural justice.
Did the COI properly address Clarke’s and Vaurasi’s affidavits? That is one of the central issues emerging from Justice Tuiqereqere’s judgment. Clarke expressly denied acting as Malimali’s counsel.
Vaurasi supplied a detailed institutional explanation: Clarke contacted her on behalf of the Fiji Law Society; she understood the arrest as a rule-of-law issue; separate defence counsel were present; and she and Clarke attended as representatives of the Society.
The COI was entitled to reject that explanation but it had to confront it. It had to explain why it preferred Malimali’s and Bale’s descriptions or why the recording demonstrated that the institutional explanation was incomplete or implausible.
A rational decision-maker may prefer one body of evidence over another. But it cannot simply recite incriminating material while failing to address material evidence pointing in the opposite direction.
The High Court’s criticism was not necessarily that the COI lacked any evidence concerning Clarke. It was that the Commission’s much more serious conclusions were not logically supported and that evidence favourable to Clarke and Vaurasi had not been properly considered.
That distinction matters.
What Justice Tuiqereqere decided
Justice Tuiqereqere was exercising judicial-review jurisdiction. He was not presiding over a criminal trial or rehearing the COI from the beginning. His judgment rested upon several separate grounds.
The Commission’s lawful period
Justice Tuiqereqere held that the Commission did not possess lawful authority to continue beyond 31 January 2025.
In his view, the purported extension was legally ineffective and a fresh commission was required. Work undertaken afterwards, including the final report, was therefore ultra vires.
This was a threshold legal conclusion. If correct, it invalidated the report irrespective of whether the factual evidence concerning Clarke was strong or weak.
Procedural fairness
The judge found that Clarke, Vaurasi and the other applicants were not given sufficiently precise notice of the adverse findings eventually made against them.
The question was not simply whether Clarke knew that his role at FICAC was under examination. His affidavit demonstrates that he knew his alleged status as Malimali’s lawyer was an issue.
Likewise, Vaurasi knew the purpose of her attendance was being examined because her affidavit responded directly to it.
The High Court’s concern was that they were not adequately warned that the COI might conclude they participated in a conspiracy; exercised undue influence; improperly pressured investigators; obstructed the course of justice; or engaged in conduct warranting criminal investigation.
Knowledge of the underlying event is not necessarily notice of the particular adverse conclusion contemplated. Justice Tuiqereqere held that fairness required the applicants to be given the substance of the proposed findings and a meaningful final opportunity to respond.
Treatment of the evidence
The High Court found no logical evidential basis for some of the COI’s conclusions concerning conspiracy or undue influence by Clarke and Vaurasi.
The judge considered that the Commission had ignored or inadequately treated their evidence, including the Fiji Law Society explanation; the asserted rule-of-law concern; the existence of a perceived conflict within FICAC; their challenge to Puleiwai’s authority; and the wider context of their attendance.
Vaurasi’s affidavit provides direct documentary support for the existence of that alternative explanation.
The High Court did not have to accept her account as proven fact. But it was entitled to ask whether the COI engaged with it rationally before drawing much more serious conclusions.
Terms of reference
Justice Tuiqereqere concluded that adverse findings concerning the 5 September meeting went beyond the Commission’s terms of reference.
The judge appears to have distinguished between examining the process by which Malimali was appointed and making findings against lawyers who intervened after the appointment had already been made.
That conclusion is potentially contestable because Malimali’s appointment was central to the confrontation. Her new authority was invoked as a reason why FICAC officers could no longer proceed against her.
Whether the meeting fell within the COI’s mandate depends upon the proper interpretation of the terms of reference.
Apparent bias
The judge also found apparent bias, partly by reference to Justice David Ashton-Lewis’s public language about uncovering “crocodiles in the pond”.
The legal test was whether a fair-minded and informed observer might reasonably apprehend that the Commissioner would not approach the inquiry impartially.
The issue was not whether Ashton-Lewis personally believed himself fair. It was whether his conduct and statements created the objective appearance of prejudgment.
The remedy
Justice Tuiqereqere quashed the COI report and its adverse findings. That removed their legal effect. But it did not amount to a judicial determination that Clarke was definitely not Malimali’s lawyer; Vaurasi’s account was conclusively correct; Malimali and Bale gave false evidence; the recording was unreliable; none of the disputed statements was made; or the conduct at FICAC was beyond criticism.
The High Court decided that the findings were unlawfully and unfairly reached. It did not determine every underlying fact.
Did the High Court reassess the merits?
This may become one of the most important appellate questions.
A judicial-review court may examine whether a decision was irrational or lacked an evidential foundation. It does not ordinarily decide the entire factual dispute again or substitute its preferred interpretation merely because another conclusion was possible.
The COI had before it material capable of raising serious questions: Malimali’s “my lawyer” description; her request for Clarke’s assistance; Bale’s account of Clarke’s introduction; the recording of the meeting; the demand for Malimali’s release; and statements concerning the consequences of continuing the investigation.
The High Court was entitled to find that this evidence did not logically support the COI’s ultimate conclusions.
But if the judge effectively preferred Clarke’s and Vaurasi’s account over the competing evidence and substituted that preference for the Commission’s assessment, the Court of Appeal may find that he crossed the boundary between judicial review and a merits appeal.
The appellate question will be: Did the COI have some probative evidence upon which a rational fact-finder could reach its conclusion, or was the conclusion so unsupported, exaggerated or one-sided that judicial intervention was justified?
Why the four affidavits may matter in the Court of Appeal
The affidavits are not a free-standing ground of appeal. The Court of Appeal will not simply read them and announce which witness it believes.
Their relevance lies in several possible appellate arguments. Whether material evidence was overlooked
An appellant could argue that Justice Tuiqereqere failed to recognise the cumulative evidential foundation available to the COI.
Malimali’s and Bale’s affidavits, combined with the recording, may be used to challenge the High Court’s conclusion that the COI lacked a logical basis for examining Clarke’s conduct.
Conversely, Clarke and Vaurasi could rely upon their affidavits to defend the judgment by showing that the Commission failed to address important evidence supporting an innocent institutional explanation.
The affidavits therefore cut both ways.
Whether there was actual notice
Clarke’s affidavit expressly denied being Malimali’s lawyer. Vaurasi’s affidavit directly addressed why she attended and whom she represented.
Those responses show that both knew their capacity was under investigation.
An appellant may argue that this constituted actual notice of the substance of the issue.
But actual notice of one factual question is not necessarily notice of a contemplated finding of conspiracy or criminal obstruction.
The Court of Appeal would need to examine the entire process:
- Were the competing affidavits disclosed?
- Was the recording supplied or played?
- Were the disputed statements put to the witnesses?
- Were they told what adverse inferences might be drawn?
- Were they warned of the possible findings?
- Were they given a final opportunity to respond?
Whether the COI remained within its mandate
The affidavits demonstrate the connection between Malimali’s appointment and the events at FICAC.
The intervention arose because she had been appointed Commissioner and was arrested when attempting to take up the office. The dispute concerned whether the Acting Deputy Commissioner could arrest the substantive Commissioner.
That connection may support an appellate argument that the meeting fell within the terms of reference.
The opposing argument is that the Commission was established to investigate the appointment process, not every later controversy involving Malimali.
Whether procedural unfairness caused material prejudice
Even where a procedural defect is identified, an appellate court may examine whether it was material to the result.
If Clarke and Vaurasi knew the case, received the relevant evidence and answered the allegations fully, an appellant may argue that no material prejudice arose.
If they were never warned that their conduct might be characterised as conspiratorial or criminal, the High Court’s fairness ruling is more likely to survive.
Whether the entire report had to be quashed
The Court of Appeal may also consider whether Justice Tuiqereqere’s remedy was too broad.
Even if the findings concerning Clarke and Vaurasi were procedurally defective, it does not automatically follow that every part of the report had to be erased.
Possible questions include:
- Could the Clarke and Vaurasi findings have been severed?
- Could lawfully gathered evidence have been preserved?
- Could the disputed findings have been remitted for reconsideration?
- Did apparent bias infect the entire inquiry?
- Was all decisive work completed only after the Commission’s lawful period expired?
The extension issue remains decisive. The four affidavits cannot cure an absence of legal authority.
If the Court of Appeal agrees that the Commission expired on 31 January 2025, the final report may remain invalid regardless of whether Justice Tuiqereqere was wrong about the evidential basis concerning Clarke.
The affidavit dispute may still matter because it could correct the public interpretation of the judgment; affect findings about rationality and procedural fairness; influence the appropriate remedy; preserve underlying evidence for lawful independent investigation; or determine whether parts of the High Court’s reasoning should stand.
But any effective appeal seeking to restore the report must confront the extension ruling directly. Will the Court of Appeal necessarily decide the Clarke issue? Not necessarily.
Prime Minister Sitiveni Rabuka has indicated an intention to appeal matters affecting him. If the notice of appeal is confined to findings concerning the Prime Minister, the Court of Appeal may not revisit the separate conclusions concerning Clarke and Vaurasi.
For the four affidavits to become central to the appeal, a party with standing must properly challenge the High Court’s conclusions about the evidential foundation; natural justice; the scope of the terms of reference; and the remedy affecting those particular findings. The Court of Appeal determines grounds properly brought before it. It does not automatically reopen every part of a large judgment.
Why should readers care? Readers should care because three different propositions are being publicly confused.
The first is that the COI made adverse findings against Clarke and others.
The second is that the High Court quashed those findings.
The third, and incorrect, proposition is that the High Court thereby decided every contested fact in favour of the applicants.
It did not.
The COI’s conclusions presently have no legal force. That must be respected.
But the four affidavits remain part of the documentary history. They reveal a genuine conflict about legal representation, institutional intervention and the purpose of the meeting.
The Court of Appeal may eventually decide whether Justice Tuiqereqere correctly reviewed the COI’s treatment of that evidence. It will not necessarily decide which affidavit was true.
The affidavits are evidence, not verdicts. The four affidavits should neither be ignored nor treated as automatic proof of wrongdoing.
Malimali and Bale supplied evidence capable of supporting an inference that Clarke was acting personally for Malimali.
Clarke and Vaurasi supplied sworn evidence that they attended for the Fiji Law Society to address what they regarded as a rule-of-law problem.
The recording provided an objective means of testing those explanations against what was actually said.
The COI drew serious adverse conclusions from the cumulative evidence.
Justice Tuiqereqere held that those conclusions were produced by a Commission operating beyond its lawful authority, through an unfair and apparently biased process, and without a sufficient logical foundation.
The Court of Appeal’s potential role is not to repeat the COI or conduct a fresh trial. It is to decide whether Justice Tuiqereqere applied the correct legal standards when reviewing the Commission.
The central questions are therefore no longer simply, “Who was Malimali’s lawyer?” or “Which affidavit should be believed?”
(1) Did the COI fairly and rationally assess all four affidavits? Did it explain why it preferred one account over another?
(2) Were Clarke and Vaurasi given proper notice of the grave conclusions contemplated?
(3) Did the High Court correct genuine legal errors or improperly substitute its own view of the evidence?
(4) Did the 5 September meeting fall within the COI’s mandate?
(5) And, above all, did the Commission possess lawful authority when it made its final findings?
The COI findings have been quashed. The competing affidavits remain. Their proper legal treatment, not their mere existence, is what may now matter in the Fiji Court of Appeal.
