NIKO NAWAIKULA: He was like a crocodile resting in warm water. He did not recognize difference in the increasing temperature to control his bite and GREED. Another of Sitiveni Rabuka's 1987 Fake Messiah Nationalist

*Sadly, while the COUPIST, hiding behind IMMUNITY, has conned and moved on and now wants to become Prime Minister under his PAP, Nawaikula carried on with his nationalistic chest-beating, portraying himself as the torch-bearer of Rabuka's bogus indigenous rights while dipping into the Parliamentary Allowance as a Member of Parliament - a replay of the collapsed National Bank of Fiji
*As a legal adviser with the NLTB, he oversaw after the 1987 coups the eviction of hundreds of Indo-Fijian sugarcane farmers from their leased lands, many not receiving any compensation, including one, from court records, losing her house worth $40,000 after her husband had died, and the lease was not transferred to her
* Our Editor-in-Chief's aunt and her husband were evicted after nearly
57 years from their family farm in Rakiraki. They had to leave their life's possessions, including the house, animals, tractors and the sugar canes still standing, and were forced to emigrate to Australia, where the aunt's husband, a hardy sun-scotched farmer all his life, died of depression.
*The aunt is nearly turning 100 but still crying and cursing the evil
Rabuka-Nawaikula Axis, saying Australia is worse than 'prison'.
*We will not hear Rabuka's Ponga Professor buddy calling for compensation on behalf of those who were forcibly evicted or their ashes brought back to Fiji and buried in their Fijian Motherland.
* This week, we saw him screaming, 'Political Gimmick,1987 Coups.'
*If Nawaikula is JAILED, there will be no TEARS in hundreds of Indo-Fijian households, many now squatters in the Suva-Nasinu corridor
HE was given a free and fair trial, unlike hundreds of evicted farmers
KARMA IS REALLY A BITCH, DEAR OLD (ONCE) FRIEND!

Fiji Independent Commission Against Corruption (FICAC) v Nawaikula [2022] FJHC 192; HACD005.2022S (3 May 2022)

IN THE HIGH COURT OF FIJI
AT SUVA

ANTI-CORRUPTION DIVISION
CRIMINAL CASE NO. HACD 005 of 2022S

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
(FICAC))
vs

NIKOLAU NAWAIKULA

Counsel: Mr. Aslam R and Mr. Work J with - for Prosecution
Mr. Hickes D and Mr. Nand A
Mr. Valenitabua S. R and Rokodreu V - for Accused


Dates of Trial: 28th March – 19th April 2022
Date of Judgment: 03rd May 2022

JUDGEMENT

1. INTRODUCTION

1. The accused in this matter, NIKOLAU NAWAIKULA, was charged with one count of tendering FALSE INFORMATION TO A PUBLIC SERVANT and one count of OBTAINING FINANCIAL ADVANTAGE by the FIJI Independent Commission Against Corruption, as below:

FIRST COUNT

Statement of Offence (a)
False information to public servant: Contrary to Section 201(a) of the Crimes Act No. 44 of 2009.

Particulars of Offence (b)
Nikolau Nawaikula on or about 10th April 2019 at Suva in the Central Division gave Viniana Namosimalua the Acting Secretary General to the Parliament of Fiji a person employed in the Civil Service false information that his permanent place of residence is in Buca Village, Buca Bay which he knows to be false knowing it to be likely that he will thereby cause Viniana Namosimalua to approve allowance claims submitted by him which Viniana Namosimalua ought not to do if the true state of facts with respect to the permanent place of residence of Nikolau Nawaikula were known to her.

SECOND COUNT

Statement of Offence (a)
OBTAINING FINANCIAL ADVANTAGE: Contrary to Section 326(i) of the Crimes Act No. 44 of 2009.

Particulars of the Offence (b)
Nikolau Nawaikula between 1st August 2019 and 30th April, 2020 at Suva in the Central Division engaged in conduct namely submitted Allowance Claims to the office of the Acting Secretary General to the Parliament of Fiji and as a result of that conduct obtained a financial advantage amounting to $20,201.35 from the office of the Acting Secretary General to the Parliament of Fiji knowing or believing that he permanently resides at 15 kilometers Kings Road, Koronivia, Nausori which is a place less than 30 kilometers away from the place of Parliament or committee as per the Parliamentary Remunerations Act 2014 and therefore was not eligible to receive the said financial advantage.

1. When these charges were read over to the accused in open Court on 14/02/2022, the accused understood the charges and pleaded not guilty to the charges. The trial to this matter on the above counts commenced on 28/03/2022 and proceeded till 19/04/2022.
2. For the Prosecution case 19 witnesses gave evidence and marked 88 (PEX1 – PWEX88) documents, which included admitted documents by the Defense. At the end of the Prosecution case, since the Court was satisfied that a prima facie case has been established against the accused, acting under Section 231 of the Criminal Procedure Act of 2009, the Defense was called from the accused and the standard options available to the accused for his Defense were spelt out. For the Defense case, the accused gave evidence under oath and was cross-examined by the Prosecution. Further, 3 more witnesses were summoned to give evidence for the Defense case and 42 documents (DEX1 – DEX42) were marked. On both the Prosecution and the Defense making final submissions on 19/04/2022, this case was fixed for the judgement.

1. BACKGROUND

1. The accused in this matter, Mr. Nikolau Nawaikula, is an honourable member of the current Parliament of the Republic of Fiji representing the SODELPA Party. He has been actively involved in political activity in the Republic of Fiji since 2005.
2. To provide for remuneration and allowances for the Members of Parliament of Fiji, including His Excellency the President of the Republic of Fiji, the Legislature has passed and published in the Gazette of 03rd October 2014 the Parliamentary Remuneration Act of 2014 (The Act). The Schedule to this Act provides provisions in relation to the SALARY together with ALLOWANCES and BENEFITS available for the honourable members of Parliament at the time.
3. In this regard, under Part B of this Schedule to the Act , Allowances and Benefits available for the Members of Parliament are clearly highlighted as below:

“Members of Parliament (including Deputy Speaker, Government/Opposition Whip and Leader of the Government in Parliament and excluding the Prime Minister, Ministers, Speaker and the Leader of the Opposition)

1. Accommodation Allowance – For meeting of Parliament or Committee, if the member permanently resides at any place more than 30kilometres away from the place of the meeting of Parliament or Committee, then the member shall be entitled to an allowance of $350 per day plus $30 per meal.
2. Traveling Allowance – For meetings of Parliament Committee, if the member permanently resides at any place more than 30km from the place of the place of meeting of Parliament or committee, then the member shall be entitled to cost of travel by the most direct route and from the meeting. Allowance in respect to motor vehicles shall be payable at the following rates-
   • (a) Vehicles of up to and equal to 200cc – 50 cents per kilometer and;
   • (b) Vehicles of 200cc or over -60 cents per kilometer.”
3. To facilitate the execution of allowances and benefits available for the Parliament members under the Parliamentary Remuneration Act of 2014, subsequent to taking the oath of office and the oath of allegiance by the Parliamentarians to the New Parliament on 26/11/2018, the office of the Secretary General to the Parliament had conducted two induction programs for the Parliamentarians to detail Parliamentary procedures that should be followed in relation to swearing – in and the administrative procedure in day to day activities. At the second induction, Parliamentarians have been requested to provide a Declaration affirming their personal details that could assist the determination and calculation of their allowances and benefits by the Office of the Secretary General to the Parliament.
   1. In compliance with this request, Mr. Nikolau Nawaikula had provided his Member of Parliament Declaration Form (MPDF) dated 10/04/2019, certified by a Commissioner for Oaths, to the then Acting Secretary General to the Parliament. This Declaration is an admitted fact by both parties, which is marked by the Prosecution as PEX3. Consequent to the information provided in PEX3, the Office of the Secretary General to the Parliament had made reimbursement payments to Mr. Nikolau Nawaikula on accommodation and traveling claims submitted by him.
   2. The charges filed in this case by the FIJI Independent Commission Against Corruption against Mr. Nikolau Nawaikula revolves around the accommodation and traveling claims tendered to the Office of the Acting Secretary General to the Parliament by Mr. Nikolau Nawaikula, on the premise that his permanent place of residence was Buca Village, Buca Bay, Cakaudrove as per PEX3, and the resultant payments made to him by the Parliament.
   1. THE LAW

C (1) – BURDEN AND STANDARD OF PROOF

1. In proceeding with the trial in this matter, this Court was mindful that as recognised by Section 14 (2) (a) of the Constitution of Fiji, the accused should be presumed innocent until proven guilty according to law.
2. Further, in establishing the charges tendered in the Information for trial, the burden was on the Prosecution to prove them beyond reasonable doubt. Each contested element of each count required to be proved beyond reasonable doubt by the Prosecution and this burden never changed and never shifted to the Accused.

C (2) – OBJECTIONS RAISED BY THE DEFENSE CLAIMING LACK OF DUE PROCESS

1. In the final submissions made by the Counsel for the Defense and during cross examination of some Prosecution witnesses, Defense claimed of a lacuna of due process being followed by the Fiji Independent Commission against Corruption (FICAC) in arresting and forwarding charges against the accused in this matter, resulting in several errors of law. This Court is mindful that if such errors of law have been committed by the Prosecution, the benefit of non-adherence to the due process by the Prosecution should be given to the accused to the extent recognized by law.
2. On this premise, before considering the substantial charges against the accused, Court wishes to consider the veracity of the claims made by the Defense and the impact that could have had on a fair trial against the accused in this matter.

C (2) (a) – Absence of a Complaint

1. It was brought to the attention of Court by the Defense Counsel that the complaint in this matter had been made by an anonymous person. Defense claims that the complainant in this matter was never identified or brought to Court during trial to give evidence, therefore the complainant remains unknown to this hour. Defense counsel contends that Section 56(1) (a) of the Criminal Procedure Act of 2009 requires a complaint to be made by a person designated as a complainant. Defense claims that due to the absence of a complaint in writing signed by the complainant in this matter, the institution of Criminal Proceedings was unlawful and invalid from the outset.
2. Further, according to the Defense, the Charge in this matter was signed by the prosecutor, making the prosecutor the complainant. Defense notes, as per Section 12B (5) of the FICAC Act of 2007, “it is lawful for any officer authorized in that behalf by the commissioner to make a complaint or charge against any person before a Magistrate”. In this regard, Defense contends that the word “officer” should not include a legal practitioner, as done in this matter. It is submitted by the Defense that Section 56 (7) of the Criminal Procedure Act does not contemplate the “prosecutor” preferring the charge. On this premise, Defense aver that the Prosecution has committed an error of law in this matter, which should be considered by Court.
3. In relation to the anonymity of the complainant, though there can be many practical reasons for a complainant to remain anonymous, there can’t be any anonymity in the evidence lead in Court to prove the case by the Prosecution beyond reasonable doubt. In this regard, though the complainant may not be brought to Court, all the pertinent evidence should be lead in Court in the presence of the accused by the Prosecution.
4. Further, the Prosecution brings to the attention of Court that under Section 115 (7) of the Constitution of Fiji, in exercising its powers and performing functions, the Commission against Corruption shall be guided by the standards established under the United Nations Convention against Corruption. For this end, Article 33 of the United Nations Convention Against Corruption 2003 reads as follows:

“Article 33- Protection of Reporting Persons - Each State Party shall consider incorporating into the domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.”

Therefore, this Court finds no harm caused to the fairness of the trial by such anonymity, since the Prosecution is bound to prove the charges beyond reasonable doubt with evidence lead in Court to convict the accused.

1. Further, the submission of the Defense in relation to the requirement of a complaint to be made by a person designated as a complainant under Section 56 (1) (a) of the Criminal Procedure Act of 2009 is vitiated by Section 56 (5), where a police officer or other officer acting under lawful duty can file charges in the Magistrate Court, as done in this matter.
2. In relation to the complaint of the Defense of the prosecutor being the complainant in this case, this Court recognizes that as per the definition of the word “Officer” under Section 2 together with Section 8 of the FICAC Act of 2007, this could be either a legal officer or a police officer. Therefore, there is no error in law in this regard.

C (2) (b) – Unlawful Arrest

1. Referring to evidence given in this Court by the two FICAC investigating officers, Mr. Kuliniasi Saumi and Ms. Milika Cakacaka, it was submitted by the Defense that knowing that the accused in this matter was investigated by FICAC for summary offenses, FICAC officers arrested the accused unlawfully without a warrant on 25/08/2019 in Buca village and on 29/09/2019 in Nandi. In this regard, the position of the Defense is that both under Section 10 (1) of the FICAC Act of 2007 and under Section 18 of the Criminal Procedure Act of 2009, FICAC or police officers could only arrest an accused without a warrant if the accused person is suspected for an indictable offence and not for a summary offence, as in this matter.
2. Therefore, it is averred by the Defense that the accused was arrested unlawfully in this matter creating an error of Law. As a consequence, it is the submission of the Defense that all the proceeding that stemmed after the alleged unlawful arrest were unlawful and void, necessitating this Court to acquit the accused of the charges filed in this case.
3. In addressing this concern, this Court wish to refer to the Powers of the Commissioner under the FICAC Act of 2007 stipulated in Section 13 of the Act. In this regard, Section 13 (1) (d) reads as follows:

“13 (1) For the purpose of the performance of his functions under this promulgation the Commissioner through the Deputy Commissioner and/or through his officers, may-

1. ............; b).............; c)............;

d) Without warrant, arrest or authorize any officer to arrest a person who is suspected to have committed an offense to which this promulgation applies; e) .............”

1. As per Section 2 (A) (h) of the FICAC Act of 2007, this Act applies to any offense under the Crimes Act 2009. Therefore, pursuant to the above provision in the FICAC Act of 2007, this Court holds that the contention of the Defense Counsel with regard to unlawful arrest is without merit.

C (2) (c) – Parliamentary Remuneration Act of 2014 (PRA) is non-justiciable

1. In consideration of the Parliamentary Remunerations Act of 2014 (PRA), Defense Counsel highlights this Court that it is established law that the internal processes of the Parliament are non-justiciable, unless a provision of the Constitution was contravened during the process of enactment.
2. It is submitted, since Parliamentary Remunerations Act of 2014 was passed and enacted as law by the Parliament of Fiji detailing internal processes of Parliament, it is non-justiciable. The Defense is of the view that it is now not the time nor the responsibility of the Court to read extra conditions in the PRA and adjudicate on them.
3. In addressing this submission, at the very onset, this Court concedes with the Defense Counsel of his stance in relation to the non-justiciability of internal processes of the Parliament. However, by this Information filed in this Court by the FICAC, this Court is not expected to scrutinize or question the internal processes of the Parliament.
4. As this Court sees, the expectation from this Court is to determine whether a crime has been committed under the Crimes Act of 2009 by a Parliamentarian by providing false information to the Parliamentary internal process and whether thereby the accused squandered ordinary taxpayers’ money of this country. In any event, if a Crime has been committed by a Parliamentarian or a farmer, as per the basic principles of Rule of Law, the same law should apply. There is no special law to determine the criminality of conduct of Parliamentarians in any jurisdiction.
5. To lend a force to the above determination, this Court refers to the full bench decision of the Supreme Court of England and Wales in the case of R v Chaytor and Others (Appellants)[1], where few Parliamentarians of Westminster were committed for trial at the Crown Court, in the first instance, on charges arising from alleged dishonest Parliamentary expenses and allowance claims. In that, on conviction they went in appeal claiming that the internal processes of Parliament are protected from general law by Parliamentary privileges. In this regard, in agreeing with the other Lords to dismiss the appeal against the conviction, Lord Roger of Earls Ferry stated as below:

“..........if a Member of Parliament dishonestly, with a view to gain for himself, submitted a claim form which to his knowledge was false in a material particular, the law of England would apply. The member would commit an offence under s 17(1) of the 1968 Theft Act, even if he completed the form to claim in the House of Commons and submitted it in person to the Fees Office”

C (3) - ELEMENTS OF THE OFFENSES CHARGED

1. In relation to the two counts against the accused in this trial, the elements of the offenses can be detailed as, below:

Count 1 – Tendering False Information to a Public Servant – Section 201(a) of the Crimes Act 2009
i) The Accused person (Mr. Nikolau Nawaikula) gave information;
ii) To a person employed in the Civil Service;
iii) That he knew or believed to be false;
iv) Knowing it to be likely that the Accused person will cause the person employed in the Civil Service to do anything which she ought not to do or omit if the true state of facts respecting which such information was given were known to her.

Count 2 – Obtaining Financial Advantage - Section 326(1) of the Crimes Act 2009

1. The Accused person (Mr. Nikolau Nawaikula)
2. Engages in conduct; and
   1. As a result of the conduct, obtains financial advantage for himself from another person; and
   2. Knows or believes that he was not eligible to receive that financial advantage

1. In order to establish the guilt of the accused for Count 1 & Count 2, the Prosecution must prove beyond reasonable doubt all the elements as elaborated above. However, by the agreed facts between the parties and by submissions made by counsel for both parties in Court, parties have agreed to some of the elements of these two counts. As a consequence, under Section 135 of the Criminal Procedure Act of 2009, such admitted elements need not be established by the Prosecution in this trial to prove the guilt of the accused.

C (4) – ELEMENTS OF THE COUNTS AGREED BY BOTH PARTIES

1. The following elements of the Counts in the Information are agree by the Prosecution and the Defense. Thus, Prosecution did not have to establish these elements.

Count 1
i) The Accused person gave information;
ii) To a person employed in the Civil Service.

Count 2

1. The Accused person
2. Engages in conduct; and
   1. As a result of the conduct, obtains financial advantage for himself from another person; and

C (5) - ELEMENTS OF THE COUNTS CONTESTED BY THE DEFENSE

1. Consequent to following the pre-trial procedures laid down in Section 289 of the Criminal Procedure Act of 2009, the Prosecution and the Defense have managed to narrow down the elements that need to be proved by the Prosecution beyond reasonable doubt to the elements below for the two counts in the information filed.

Count 1 – Tendering False Information to a Public Servant – Section 201(a) of the Crimes Act 2009
i) The accused knew or believed that the information he provided to the Acting Secretary General to the Parliament to be false;
ii) Knowing it to be likely that the accused person will cause the person employed in the Civil Service to do anything which she ought not to do or omit if the true state of facts respecting which such information is given were known to her.

Count 2 – Obtaining Financial Advantage - Section 326(1) of the Crimes Act 2009

1. The accused knew or believed that he was not eligible to receive that financial advantage consequent to the false information provided by him.

PAYMENTS MADE TO THE ACCUSED BY THE PARIAMENT, AS PER THE PARLIAMENTRY REMUNERATIONS ACT OF 2014

1. To confirm the payments made to the accused as per PEX39 to PEX51, which are agreed documents by the parties, the Prosecution lead the evidence of Mrs. Viniana Namosimalua, who was the Acting Secretary General of the Parliament of Fiji during the time in issue. Since the charges filed in Court stems from the information received from the accused and payments made to the accused by the office of this witness, this Court considers it pertinent to succinctly stipulate the evidence given by this witness in Court, where she stated as below:
   • “I was the Acting Secretary General to the Parliament of the Republic of Fiji during the time in issue.
   • I was appointed by the Constitutional Officers Commission (COC) as the S/G, as per Section 79 of the Con. I was the chief Admin officer of Parliament. I reported to the Speaker. For the purpose of the Constitution and the Crimes Act, I was a civil servant.
   • After the election of Parliament, just before the sittings in 2018, there were 2 induction for Parliamentarians. At the first induction, members were told of the swearing in procedure. Second induction was to introduce Parliamentarians’ to the admin processes like claims and allowances.
   • I presided at the swearing – in, where there was an oath of office and an oath of allegiance to the Constitution and the Law. Parliamentarians signed these oaths before me, and I counter signed.
   • PEX1 is the Oath for taking office and PEX2 is the Oath of allegiance signed by Honorable Niko Nawaikula on 26/11/2018.
   • During the inductions, I wrote to the honorable members and inform them of their entitlements.
   • PEX74B was the letter, dated 10/12/2018, addressed to Honorable Niko Nawaikula informing him of his entitlements as a Parliamentarian. This details all his allowances, including accommodation, travel, sitting allowances, superannuation and overseas travel in laymen’s terms. This letter translated the provisions of the Parliamentary Remunerations Act of 2014.
   • With regard to accommodation allowance, it is mentioned in (a) that those who reside at any place more than 30 kilometers away from the place of meeting of Parliament or Committee then they are entitled to an allowance of $350 per day plus $30 per meal.
   • With regard to travel allowance, it was mentioned in (c) that members who are residing any place more than 30 km away from the place of the meeting of Parliament will be entitled.
   • By way of my letter dated 10th December 2018, I advised Honourable Niko Nawaikula of all his entitlements, salary etc. This letter was hand delivered to Honorable Niko Nawaikula.
   • At the inductions, members of Parliament were requested to provide a declaration. The declaration was necessary because it had financial implications tied to it. Declaration requested for the permanent residence, since we would not be able to pay any allowances to members, if we didn’t have information of where they resided.
   • My view was that we needed to hold them to account because they had sworn on oath when they first joined Parliament. And also they were honorable members of Parliament and I needed to capture that in something that was legally binding, like a declaration.
   • PEX3 is the completed declaration provided by Honourable Niko Nawaikula to my office. The details in this form are as below:
     • - Name: Nawaikula Nikolau Tuiqamea
     • - Permanent address as at 10/04/2019: Buca Village in Buca Bay, Cakaudrove.
     • - Postal Address: P O Box 904 Savusavu.
     • - Telephone Number: 88450239
     • - Mobile Number: 8683844
     • - Business Address: First floor, Anderson Fong building, Main Street in Savusavu.
     • - Next of Kin: Miliakere Ratawake Nawaikula, wife of 15KM Kings Road, Koronivia, Nausori
     • - The Honourable Niko Nawaikula has signed this declaration on 10/04/2019.
   • Thereafter, I didn’t go further to clarify this, trusting that this is honest and sincere, since there was also a declaration provided with MPIF.
   • The payment of claims process begins with the claim forms that are filled in by the members of Parliament with the assistance of their admin officers and certified correct and sent to the Secretary General’s office. I have two officials who would check on my behalf and then it comes to me for signature.
   • Our finance would seek clarification if there were things that they felt is not in line with the laws and then they would make adjustments. Thereafter, payments will be made. I don’t recall Honorable Niko Nawaikula complaining about his claims to me directly or indirectly.
   • By PEX6A, I wrote to the Solicitor General on 24/02/2020 of the problems of claims. Staff informed me of the problems of claims. By looking at the claim forms they had felt that there were incorrect claims. By this letter, I informed the Solicitor General and sought advice that some Honourable members for the purposes of claiming allowances under the Act have made declarations that they permanently reside at their property more than 30km away from Parliament, even though they are known to be living more habitually at the property that is within the 30km.
   • By PEX5 the office of the Solicitor General states what is important is not where property is owned, but where the Parliamentarian permanently resides. That is where he lives the most part of the year. Subsequently, I made a complaint to FICAC.
   • At this time, I knew about 7 suspected Parliamentarians, but Honorable Niko Nawaikula was not subject to my complaint. I think somebody else has complained about Niko Nawaikula.
   • I was very disturbed by this development, since these were members of Parliament who had sworn on Oath and also filled in statutory declarations, which were legally binding. It became very clear to me that some things were not put to me honestly.”
2. As stated above , by the information in the Members of Parliament Declaration Form tendered to the office of the Acting Secretary General of Parliament by the accused (PEX3), which was also signed and witnessed by a Commissioner of Oaths, the accused informed the Parliament that his permanent place of residence was Buca Village, Buca Bay, Cakaudrove. This location of permanent residence of the accused made him eligible to claim accommodation and traveling allowances under the Parliamentary Remunerations Act of 2014, , since that locality was more than 30km away from the Parliament in Suva.
3. To confirm that the payments to the accused under agreed documents PEX39 to PEX51 were made consequent to the claims submitted on behalf of the accused, Prosecution lead the evidence of Peniasi Daveta, who had been the constituency officer at the opposition office in 2019 and 2020. According to him, when Parliamentarians of the opposition come for official duties to Parliament he helps them to complete the forms, GP8 and GP21, needed for them to claim for reimbursements from the office of the Acting Secretary General for the expenses incurred. He fills the forms, as per the information and supporting documents provided by the Parliamentarians, where these forms are also signed by the relevant Parliamentarians. After he fills the forms, these forms are also verified by the senior officer of the opposition office before submitting them to the Secretary General of Parliament.
4. He remembers filling claim forms for the accused, where the accused brought the required acquittals for him to fill the claim forms. He also has had access to the information in his declaration (PEX3), where he has considered the residence of the accused to be Buca village for his claims.
5. In addition to the above witness, Prosecution lead the evidence of Mr. Saruwesh Narayan, who was the Senior Finance Officer of the Parliament of Fiji during the time in issue, responsible for supervising the finance team and processing all allowance payments to Parliamentarians. According to him, this process starts from the Member of Parliament completing and submitting the required forms. Senior officer appointed by the Party has to certify the GP8 form before the claim is submitted to the Secretary General’s office. Then the Secretary General signs the claim form with acquittals and then given to the Finance Unit.
6. Once the claim is received by the Finance Unit, they verify the Parliamentary sitting dates and tickets of travel with GP21 form. If there are discrepancies in the GP8 and GP21 forms, Finance Unit amend the claims. Finally Finance Officer and the Senior Finance Officer sign the claims. Thereafter, the forms go to the vouchering clerk and then to the FMIS clerk to enter into the system. Lastly, it goes to the payment processing clerk and she will electronically transfer the money to the Parliamentarian.
7. According this witness, the Declarations of Parliamentarians with their details are given to the Secretary General in the first instance. PEX3 is the declaration of the accused that they relied on. In this, the accused has given his permanent residence as Buca village, Buca Bay. He confirmed his signature in PEX39 to PEX51 in relation to these claims going through him.

1. EVIDENCE LEAD IN THE TRIAL IN RELATION TO THE CONTESTED ELMENTS BY THE PROSECUTION AND THE DEFENSE

1. From the evidence lead in the trial by the Prosecution and the Defense, this Court needs to determine whether the Prosecution managed to prove each contested element of each count beyond reasonable doubt or whether the Defense created a reasonable doubt in relation to any of the contested elements in any of the counts, warranting the acquittal of the accused for that count. To achieve this objective, this Court intends to analyse the impact of the Prosecution and Defense evidence lead in this Court on the contested elements of each court.

COUNT 1

1. As identified above, there are two contested elements in relation to this Count that needs to be determined by the Court. Now this Court will venture to consider these two elements in relation to the evidence lead in Court.
   1. THE ACCUSED KNEW OR BELIEVED THAT THE INFORMATION HE PROVIDED TO THE ACTING SECRETARY GENERAL TO THE PARLIAMENT TO BE FALSE.
2. According to the Prosecution, the alleged false information of the permanent residence of the accused in PEX3, i.e. Buca Village, Buca Bay, Cakaudrove, required the Office of the Acting Secretary General to reimburse accommodation and travelling claims of the accused, as per the Schedule to the Parliamentary Remunerations Act of 2014.
   1. Therefore, before considering the evidence deduced by the Prosecution and the Defense to demonstrate the permanent place of residence of the accused during the time in issue, this Court needs to determine what is meant by the permanent residence of a person.

Permanent Residence

1. At the very onset, this Court recognises that the phrase “Permanent Residence” does not seem to have an all-encompassing definition in the legal literature and has been determined subjectively on the relevant circumstances. This Court perceives that in identifying a suitable definition for the phrase “Permanent Residence” for the contentious reimbursements made by the Parliament to the accused, it is useful to comprehend available determinations for the two words independently and apply the circumstances to determine the definition subjectively.
   1. For this end, the word “Permeant” is defined by the Oxford Dictionary as, “lasting or remaining unchanged indefinitely, or intended to be so; not temporary”. Though the Black’s Dictionary and other legal dictionaries had not provided a definition to the word “Permanent”, STROUD’S Dictionary of Words and Phrases has referred to an English case for the definition for this word. In this regard, in the case of Henriksen v Grafton Hotel[2] the Court of Appeal of England and Wales had made an observation of the word “Permanent’, where Lord Justice DU PARCQ has stated, as below:

“Permanent” is indeed a relative term, and is not synonymous with “everlasting.”

1. On these definitions, it can be safely concluded that in relation to the matter in issue, i.e. Residence, though there needs to be continuity, there is no requirement for that continuity to last for ever.
2. In relation to the word “Residence” a plethora of definitions can be found in legal literature. However, contingent on the matter at issue, it is important to select the definition subjectively on the applicable facts and circumstances. In the book, ‘The Conflict of Laws’ by Dicey & Morris[3], this word is defined as below;

“The word “residence” has different meanings in different branches of the law. It is clear that it must be distinguished from the mere presence, the state of being found in a country, but the nature of the distinction and the factors which should be taken into account will vary with the subject matter.”

1. In the early English case of Barlow v Smith[4], which brought in foundations for the word “Residence”, Lord Coleridge the Chief Justice of England and Wales, states;

“A man resides where he lives with his wife and family. That is the old and well-established idea of residence. Why should we depart from it?”

1. However, in more recent cases, Courts have included the circumstances applicable to the time, but maintained the basic idea of “Residence”. In the case of Brokelmann v Barr[5], Lord Ashworth of the Queen’s Bench Division of England and Wales making reference to an often-cited case in relation to ‘residence’, states as follows;

“The word 'residence' has come before the courts in a number of cases of which the most familiar are those relating to income tax and voting rights. In an often-cited passage taken from Levene v Inland Revenue [1928] UKHL 1; [1928] All ER Rep 746), Viscount Cave Lord Chancellor said:
'My Lords, the word “reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning “to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place.” No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word “reside“. In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure’”.

1. In fact, in the Indian case authority tendered by the Defense in their final submissions, the Indian Courts also have defined residence on the same lines. In this regard, in the Indian case of Smt. Jeewanti Pandey v Kishan Chandra Pandey[6], the Court has stated as below;

“... in its ordinary sense ‘residence’ is more or less of a permanent character. The word ‘resides’ means to take an abode for a considerable time, to dwell permanently or for a length of time; to have a settled abode for a time. It is a place where a person has a fixed home or abode. If there is a fixed home or such abode at one place, the person cannot be said to reside at any other place where he had gone on a casual or temporary visit. If a person lives with his wife and children in an established home, his legal and actual place of ‘residence’ is the same.”

1. In the final submissions, Defense submitted further authorities on “Domicile”, claiming that the “Domicile” of the accused in Fiji is Buca. Charles Wild in his Textbook ‘Conflict of Laws’[7], describes the concept of domicile as follows:

“‘domicile’ has a variable meaning in English law, but in general terms means ‘permanent home’; that the person is deemed to belong to the community where they have made their home (see Re Flynn [1968 1 All ER 49). A more precise definition is that domicile means ‘that legal relationship between a person ... and a territory subject to a distinct legal system which invokes [that] system as [his] personal law (per Sir Jocelyn Simon in Henderson v Henderson [1967] ...). It is simply that place considered by the law to be a person’s permanent home.”

1. In this regard, this Court sees a clear distinction between the words “Residence” and “Domicile”. Since in PEX3 the word used is “Residence”, this Court sees no need to consider the Domicile of the accused and this Court does not intend to determine the contours of the definition of the word “Domicile” further in this matter.
2. On this discussed case law and definitions available in legal literature, this Court comprehends that the idea of “Permanent Residence” can be prudently defined as, “a place where a person has his usual or settled abode continuously for a considerable period of time, where he is not less resident of the place due to his absence from time to time for the purposes of business or pleasure.” However, this proposed definition needs to be applied subjectively on the facts and circumstances of this case.

Prosecution Case to Establish this Element

1. It is the position of the Prosecution that during the material times to this Information, the accused had a property situated at 15 KM Kings Road, Koronivia as his permanent place of residence. Prosecution is of the view that this was the matrimonial home of the accused and his wife, which was readily available for the accused prior to, during and after the offending period. In addition, Prosecution claims that the accused had knowingly provided details of this property as his permanent address to several organisations to be included in official documents. Prosecution intended to establish this position through the evidence of the below witnesses.
2. The first witness for the Prosecution was Monita Devi Ram (PW1), the Executive Officer at the Office of the Registrar of Titles. Giving evidence in Court she mentioned that she provided agreed document PEX7 to FICAC from her office, which is a document about a Native Lease also known as i-Taukei Lease of Lot 2 on the SO plan 170 in the Tikina of Naitasiri in the Province of Naitasiri. She affirmed that the current owner of this land is Mr. Nikolau Nawaikula and Mrs. Miliakere Ratuwale Nawaikula. According to her, Lot 2 is 1654 square meters, the road next to it is Kings Road and it is located between Suva and Nausori. She further affirmed that the transfer of this property to Mr. Nikolau Nawaikula happened on 7/04/2003 and the second transfer of one undivided half share to Mrs. Miliakere Ratuwale was done on 14/12/2006. Thereafter no more transfers have happened and this property is now owned by Mr. Nikolau Nawaikula and Mrs. Miliakere Ratuwale Nawaikula under a 99 year lease, where it will expire in 2079.
3. The second witness was Sereana Tausabeto (PW2) from the i-Taukei Land Trust Board. She mentioned that PEX7, the lease for the native land, was issued on 01/11/1980 to Mohamad Hussain for a 99 year lease. She confirmed that the current tenant of the lease is Mr. Nikolau Nawaikula and Miliakere Ratuwale Nawaikula. The lease for the land is due to expire in November 2079.
4. Further, by the agreed document marked as PEX8, a report prepared by a Technician of the Fiji Roads Authority, Prosecution claimed that the Euclidean distance between the Parliament and the property owned by Mr. Nikolau Nawaikula and Mrs. Miliakere Nawaikula in 15 KM Kings Road, Koronivia was 15 kilometers. Therefore, if the accused mentioned to be residing there, he could not have claimed allowances under the Parliamentary Remunerations Act of 2014, since this property was less than 30 km to Parliament.
5. Still, further, to establish that the accused knowingly provided false information to the Acting Secretary General to the Parliament that his permanent residence was in Buca village, Prosecution lead the evidence of few representatives of government establishments to demonstrate that for all his other important day to day activities the accused provided his permanent residence as 15 KM Kings Road, Koronivia. On this premise, the Prosecution intended to demonstrate to Court that the accused knowingly provided false information to the Parliament of his residence.
6. Prosecution witness 3, Mesake Dawai, and Prosecution witness 4, Jasmine Kumar, gave evidence in Court from the Fijian Elections Office. According to PW3, the accused had submitted the agreed document, PEX9, to the Fijian Elections Office declaring that he owns only one “Home” and his residential address was 15 KM Kings Road, Koronivia. Accused had made this declaration in PEX9 on 19/10/2018, 6 months before he made the declaration to the Parliament, by PEX3, claiming that his permanent residence was in Buca villiage, Buca bay, Cakaudrove.
7. According to PW4, she had been responsible for the voter registration in the Fijian Elections Office. She concedes that she provided the agreed document PEX11 to FICAC during investigations. She claimed that PEX11 information is about Niko Nawaikula. According to her, the resident address given initially was Koronivia Nausori and his poling venue was Koronivia Service Station FEO shed. This poling venue has been selected by the voter because it was the nearest to his address. She informed that there had been a change of address and polling venue on 02/12/2021, where the address had been changed to Buca village, Natewa and the polling venue had been changed to Buca Community Hall. As for this, Prosecution submits that during the offending period, though the accused claims that his voter base was Cakaudrove, he was registered to vote in Suva and not in Buca village.
8. Prosecution lead the evidence of witness 5, Elenoa Waqatairewa, of the Legal Practitioners Unit (LPU) of the Office of the Chief Registrar next to demonstrate the accused mentioning 15 KM Kings Road, Koronivia as his residential address to obtain the annual Practicing Certificates from the LPU during 2017 to 2021, as below:
   • According to this witness she had been working in the Legal Practitioners Unit (LPU) of the Chief Registrar’s Office for over 10 years, and currently is the senior secretory.
   • She informed that LPU maintains Practicing Certificates of all Legal Practitioners of Fiji, where the Practicing Certificates are regulated under the Legal Practitioners Act of 2009. She confirmed that Leal Practitioners have to renew the Practicing Certificate annually. A lawyer in Fiji can’t practice without a current Practicing Certificate, where in renewing the Practicing Certificate there is a form to be submitted by the Practitioner. She stated that finally the Practicing Certificate is issued by the Chief Registrar under his signature.
   • She confirmed that she tendered copies of Practicing Certificates issued to the accused and the applications submitted by him for renewal to FICAC during investigations.
   • Identifying Prosecution document PEX56, she stated that it was the Practicing Certificate issued to Mr. Niko Tuiqamea Nawaikula for 03/2020 - 02/2021 and the residential address stated in this Practicing Certificate is 15 KM, Kings Road, Koronivia, Nausori.
   • As to Prosecution document PEX57, she confirmed that it is a copy of the application form submitted by the accused to obtain PEX56, where a statutory declaration dated 04/03/2020 and a photo were attached to this document. According to her, this was submitted by Mr. Niko Tuiqamea Nawaikula and his Statutory Declaration was attached to confirm that all the information provided was true. She further confirmed that it is a legal requirement under Section 42(5) of the Legal Practitioners Act of 2009 to provide a Statutory Declaration. She affirmed that the residential address provided in this application by the accused was 15 km Kings Road, Koronivia, Nausori. Next of kin is, Miliakere Nawaikula, the wife. Her address is also15 km Kings Road, Koronivia, Nausori. His usual place of business is Kadavu House, Victoria Parade, Suva. Further, the application mentions a branch in No. 32, Savusavu. The legal practitioner based in Savusavu is Pauliasi Nawaikula.
   • Regarding Prosecution document PEX58, she confirmed that it was the Practicing Certificate issued to Mr. Niko Tuiqamea Nawaikula of 15 KM Kings Road, Koronivia for 01/03/2019 – 29/02/2020. According to her, the application and details for this certificate were provided by the applicant. He has provided a Statutory Declaration with the application for this renewal to affirm the details.
   • Referring to Prosecution document PEX59, she confirmed this as the form and Statutory Declaration for the renewal under PEX58, dated 08/03/2019. The address of the accused is15 KM Kings Road, Koronivia, Nausori. Next of kin is, Maliakere Nawaikula, the wife. His usual place of business is Kadavu House, 414 Victoria Parade, Suva and no branches are mentioned in this form.
   • According to her, if a practitioner wishes to change his residence address, he/she will have to inform the Chief Registrar under Section 62(5) of the Legal Practitioners Act of 2009 and when Chief Registrar approves, they make the changes in the file.
   • She confirmed that from 2017 to 2021, the address used by Mr. Nikolau Tuigamea Nawaikula for the Practicing Certificate renewals was 15 km Kings Road, Koronivia, Nausori.
9. Next witness for the Prosecution was witness 6, Margret Grey-Ralege, from the Land Transport Authority (LTA). This witness gave evidence on two Prosecution documents, PEX64 and PEX65. PEX64 referred to the details of the accused in the LTA database and PEX65 was the license renewal application form submitted by the accused on 13/06/2019. According to this witness, in both these documents, accused had tendered his address as 15 KM Kings Road, Koronivia. By this evidence, Prosecution intended to assert that even after submitting his permanent address as Buca village to the Parliament in PEX3, the accused submitted his address as 15 KM Kings Road, Koronivia to the LTA, 2 months after the submission of PEX3 demonstrating that he knowingly provided false information to the Parliament.
10. Subsequently, Prosecution lead witness 7 Taraivini Savou, Senior Immigration Officer, from the Immigration Department of Fiji, who has been working in the department for 32 years. According to her, she is responsible for overall operation of the border control section in the Suva division that includes the Nausori Airport. She mentioned that every citizen coming to Fiji has to provide an Arrival Card, designed for all passengers arriving into the country to provide information. In this card, in 1.3 you have to mention your permanent address and in 1.8 you need to mention your address in Fiji. In the second page of this Arrival Card, there is a declaration that needs to be made by the passenger. The declaration states that the information given in the arrival card is true and correct in every respect.
11. She mentioned that she handed over to the investigation officers’ arrival cards given by Mr. Niko Nawaikula on 3 previous occasions. On the card of 05/07/2019, marked PEX67A, the permanent address mentioned by the accused is 15 km, Kings Road, Fiji and the address in Fiji is Buca Village. On the card of 15/05/2015, marked PEX67B, the permanent address is 15 km, Kings Road, Fiji and the address in Fiji is 15 km, Kings Road, as well. On the card of 15/03/2015, marked PEX67C, the permanent address is Koronivia Research Station and the address in Fiji is Koronivia.
12. As per the evidence of this witness, it was the contention of the Prosecution, even a month before the period of offending (05/07/2019), the accused had mentioned his permanent address as 15 KM Kings Road, Koronivia in a statutory declaration tendered to the immigration department. Therefore, it is evident that the accused was submitting false information to the Parliament by stating that his permanent residence is Buca village, Cakaudrove.
13. Further, to establish the movements of the accused during the time in issue, i.e. 01/08/2019 to 30/04/2020 (273) days, Prosecution relied on the agreed fact No. 6, where the accused had admitted that at all material time to this case, he had been in the possession of the phone bearing the Vodafone mobile number 8683844. This was also confirmed by the accused during his cross-examination. Also by the agreed document PEX31, Defense confirmed the localities by which the calls were made, this was especially corroborated by the travel acquittals submitted by the accused to the Parliament in PEX39 to PEX51 in relation to claims. In addition, it was the contention of the Prosecution that it is evident from the phone records the pre-planned movements of the accused to the Buca village just few days before a Parliamentary sitting to substantiate his claim of travelling from Buca village to Parliament.
14. In addition, through the evidence of the FICAC investigations officer Milika Cakacaka (PW19), Prosecution produced PEX80, consisting of a chart that detailed the movements and the whereabouts of the accused. In fact, this document was not contested by the Defense, but utilized to provide explanations for the movements of the accused during the period in issue. Evidence of the movements of the accused during the offending period, lead by the Prosecution, was not challenged by the Defense.
15. With the evidence lead through the phone records of the accused, Prosecution claimed that the predominant part of his life during the offending period of 273 days, amounting to 82% of the time was spent in Viti Levu in Koronivia. Prosecution further claims that, though the accused travelled to various locations in the country like Lautoka, Labasa, Nandi and even Buca, he spent only few days in those locations and always returned to Koronivia to his family home. It was further averred that late night calls and early morning calls made from Koronivia implied that he was making those calls from his family home in Koronivia, Suva.
16. In addition to leading evidence of these witnesses, representing government and other organization with whom the accused had interactions to demonstrate the actual residence of the accused was 15KM Kings Road, Koronivia, Suva, Prosecution lead the evidence of the village headman of the Buca village, Buca Bay, Cakaudrove (Turaga-ni-Koro) to establish that the accused did not reside in Buca village, though he used come there intermittently. For this end, Prosecution witness 12, Kitione Rawalai stated, as below:
    • That he is the Village Headman (Turaga-ni-Koro) of the Buca village, holding that position for 8 years and he is from Buca village.
    • As the village headman, he claimed to look after the whole village and to be the contacting point between the government and the village.
    • He confirmed that Buca village has about 640 people and he knows everyone personally. He affirms that his village is in Savusavu. He claimed that he knew details about people living full time in the village and that he maintains a book of the residents.
    • He informed Court that he knew the accused personally, since he is from his family and the accused is related to him, where the accused is his cousin brother. Regarding the accused, this witness affirmed that the birth place of the accused is Buca and the accused was raised in Buca and that himself and the accused went to secondary school together.
    • He claimed that from 2014, he knew people permanently living in Buca and though the accused was not living in Buca, he used to visits Buca. According to this witness, later he had come to the village as a politician to give them advice. When he comes to Buca he lives with his mother and father, and the father passed away recently and the mother is still living.
    • He declared that he doesn’t know the family of the accused much, since they don’t live in Buca and live in Koronivia, Suva
    • Referring to PEX4 (b), he confirms that it is the village stamp, which is his stamp. As to the letter given by him to the accused to tender with his Parliamentary Declaration, this witness says that he didn’t type that letter and he doesn’t know the details. When the accused brought this letter to him he signed thinking it was needed to say that the accused was a resident in Fiji and since he is in Buca once in a while. He claims that he read the letter in English and interpreted in Fijian, where the accused did not say why this document was needed.
17. In cross-examination, Defense challenged this witness in the lines of his knowledge about Nikolau Nawaikula’s Mataqali in the village. In this regard, this witness mentioned the Mataqali of the accused to be Naucuqumu, where the Mataqali of the accused has been registered in the VKB for i-Taukei citizens as Vilaca. However, this discrepancy was verified by the Prosecution during cross-examination of the accused, where the accused admitted that his Mataqali is called both Vilaca and Naucuqumu, since the Mataqali mentioned in the birth certificates of his three children is Naucuqumu.
18. As per the evidence given by this witness, this Court had no reason to doubt the veracity of the evidence given by him. Facing the cross-examination of the Defense, this witness promptly answered every question as a proud headman of an i-Taukei village radiantly representing his community. Further, the demeanor and deportment of this witness was very noteworthy.
19. Above mention witnesses were the main witnesses who gave evidence to establish the Prosecution case that the permanent residence of the accused was not Buca village and thereby to assert that the accused knew or believed that the information he provided to the Acting Secretary General to the Parliament was false.

Defense Case Challenging this Element

1. At the trial, for the Defense case, the accused gave evidence under oath and was cross-examined by the Prosecution. Further, 3 more witnesses were summoned to give evidence for the Defense case. The evidence deduced in Court was as below:
2. In giving evidence under oath, the accused stated, as below:
   • He stated that he was born in Buca village and had 8 siblings in his family. He was also brought up in the Buca village and went to the primary school there. According to him, his Yavusa is Kama, his Mataqali is Vilaca and his Tokatoka is Vilaca.
   • He avows that he went to Napuka Junior Secondary and then to Marist Brothers High School. Thereafter, he had gone to University of South Pacific and then to University of Tasmania to do law. According to him, he was admitted to the Bar of Tasmania in 1986 and he got admitted to the Supreme Court of Fiji in 1987. From 2002 he had started his own legal practice with the office in Suva.
   • He confirmed that DEX4 is the certificate for his registration of native land ownership, which was done on 13/09/2021 when he changed his name. He felt that he would have been registered in 1960 by his parents. By this registration he had become a permanent member of the Native Land around the village.
   • Referring DEX5, DEX6, DEX7 and DEX8, he averred the registration of himself in his Tokatoka, registration for customary title for the land ownership for his Mataqali, the map available for the land owned by his Mataqali and the general location of his home in the map.
   • According to him, he was first elected to Parliament in August 2005 through a by election. Then the general election had been in 2006 in which he was successful in getting a seat. He had been successful again in the election of 2014 and had served the full term till 2018. In the 2018 election also he had been elected, which is the current Parliament.
   • In the current Parliament he had been sworn in on 26/11/2018. He confirmed that PEX1 and PEX2 are the oaths he took before the Acting Secretary General and signed as a Member of Parliament.
   • He informs that though previously there were different constituencies, but after 2014 there was only one constituency. Thereafter, he has had his own area of voter base, and this had been the whole of Western Cakaudrove area, including the Buca village.
   • After the election in 2018, he affirms that he decided to move to Buca and be close to his voters. He has had plans to retire to his village and he and his wife had wanted to transfer the Suva house to their children.
   • He confirmed that after getting elected in 2018, he remembers giving a declaration to the Acting Secretary General of the Parliament, where he affirms that PEX3 is his declaration made on 10/04/2018. In this document, he confirmed that his permeant residence stated is Buca village. He had given several details in this declaration, where he mentioned his wife’s residence as 15 km Kings Road, since she stayed with the children at home. He affirmed that his wife didn’t accompany him to Buca regularly.
   • He claims that he was very adamant to go back to the village and confirms that PEX4 (A) is a letter he wrote to the Secretary General and PEX4 (D) is a letter to the Chief Registrar about his office in Savusavu, where PEX4 (C) is a letter from his landlord.
   • According to him, the Secretary General had not rejected his declaration and the Chief Registrar hadn’t rejected his idea of opening a new office in Savusavu. Thus, everything had been fine. He has made claims from Parliament, as he was entitled to by the Parliamentary Remunerations Act of 2014 and the Schedule.
   • In 02/03 /2019 he had announced to his voters that he is moving to Buca, as a result, he had been appointed to the committee of the village. He had never thought that moving to Buca was wrong. He has known that he had to do it, since he was claiming from the Parliament.
   • He further stated in his evidence that he carried his own receipt book to submit acquittals to the Parliament with his claims. When cross-examined by the Prosecution, he mentioned that he didn’t bother of the sequence of receipt numbers and he just severed a receipt and gave to the taxi driver to sign.
   • He averred in his evidence that he never had a rejection of claims after assessments and the Secretary General’s Office didn’t say what he was doing wrong and he never knew that he was in the wrong. If there was anything wrong, he expected them to be resolved internally without any complaints.
   • Referring to PEX67 A, B & C the Arrival Cards he submitted at the Airport, he stated that in the card dated 05/07/2019 (A), two addresses were required, he has written the permanent address as 15 KM Kings Road and it’s mistakenly done for convenience, since he knew that it was not his permanent address. He further claimed that addresses in PEX67 B) and PEX67 (C) he has written his permanent residence as 15 KM Kings Road by mistake.
   • On his phone call records in PEX80, he gave detailed evidence for the reasons for being in the localities mentioned in PEX80 from August 2019 to April 2020.
   • Further, by the photos marked by the Defense from DEX12 to DEX34 the accused highlighted his involvement in the Buca village and the projects he had done in the village during the time the Prosecution claims that he was not permanently resident in Buca village, Buca bay.
   • He claimed that in his life as a Parliamentarian he never intended to gain and he decided to move to Buca not to gain but 2019 was the right time to move to his village.
   • According to him, when he filled the declaration, he was not giving false information to Parliament and he had no belief that he was giving false information.
3. In cross-examination by the Prosecution, the accused confirmed that though all his siblings are entitled to inherit their family home in terms of succession, by custom his eldest brother will own the family house and his children should inherit thereafter. Therefore, in the future, he may not be able to live in the family house and that’s why he is building a house in the Buca village.
4. He also confirmed that he acquired a property in 15KM Kings Road in 2003 and in 2006 he transferred half of that property to his wife. Thereafter, in 2015 they have built a new house on the property for his family to live spending part of their family savings amounting to $80,000.
5. He further verified that he and his family came to live in 15 KM Kings Road in their own house in January 2016, where they lived till March 2019, where he considered to be his work residence and Buca was his permanent residence. He confirmed that his wife was living in 15KM Kings Road full-time and he went to work from there, where all the necessary amenities were available allowing his kids and family to live. He affirmed that when he came to Parliament and to work he came back to 15 KM Koronovia home.
6. However, by 01/03/2019 he wanted to shift to Buca and wanted to move his home structure gradually, since his permanent residence was always in Buca. Nevertheless, in relation to 15 KM Kings Road property nothing changed of the ownership though they decided to move to Buca. He affirmed that he wanted to transfer this property to his kids and instructed them to do the needful when ready.
7. Further in cross-examination, in relation to PEX65 - the application to the LTA to renew his driving license, he could remember signing this form and mentioning his address as 15 KM Kings Road on 13/06/2019. He claimed that he put Koronivia address for convenience to make it easier to contact him.
8. The accused also affirmed that as a lawyer in the Civil Practice for over 30 years, he relies on Affidavits and Statutory Declarations regularly and he is aware of the importance and the gravity of those documents. After the evidence of the accused, Defense summoned three more witnesses, a representative from the i-Taukei land and fisheries commission, wife of the accused and the son of the accused for the Defense case.
9. Defense witness Mr. Apimeleki Tola from the i-Taukei Land and Fisheries Commission confirmed that VKB is one of the documents of the i-Taukei commuity to register the owners of the land and different status of individuals in the community. He affirmed that people are registered in the VKB when an i -Taukei is born. With this registration your identity is registered and you become an owner of the land and a member of the community.
10. Testifying in Court, Mrs. Miliakere Nawaikula stated that she got married to the accused in 1985 and they have 5 children. They built a new house in 15 KM Kings Road and moved to that house in January 2016, where this house became their home. According to her, though they had plans to build a house in Buca and move after 2015 on retirement, it didn’t materialize yet. She affirmed that they didn’t move to Buca, since the accused was in Parliament and he wanted to move after Parliament finishes. She claims that the plan of the accused was to try to stay in Buca permanently. The accused came to Suva for Parliamentary sittings and for family functions and Court cases, and she stayed in Suva since her mother and her two grandchildren were there. Her two sons and the daughter in law are still with her in 15 KM Kings Road, Koronivia.
11. She further claimed that, since the accused was a village boy, he always wanted to move to Buca. She affirms that the accused took part in many projects for the betterment of the Buca village, where she accompanied him on some occasions.
12. The last witness for the Defense was the son of the accused, Amosi Nawaikula. This witness testified that at present he lives in their house in 15 KM Kings Road, Koronivia with his mom and dad. In 2009, his dad (accused) had asked him to do a law degree and take over his practice for him to move to Buca. According to him, accused moving to Buda had been a topic of discussion in his family and the accused had wanted him to do law, but though he has completed his law degree he has not yet been admitted as a lawyer.
13. He claimed that the accused wanted to transfer the Koronivia property to him, but he thought for all the siblings to benefit, they should create a trust and put the property in the trust, though this is not yet finalized.

Analysis and Determination of Court

1. In relation to this element, what the Court has to determine is whether the accused knew or believed that the information he provided to the Acting Secretary General to the Parliament to be false. In this regard, the information in issue is the place of “Permanent Residence” of the accused submitted by PEX3, where he mentioned his permanent residence was at Buca village, Buca Bay, Cakaudrove.
2. In determining the falsity of the submitted place of residence by the accused to the Parliament, at the very outset, this Court intends to ascertain the locality where the accused had his usual and settled abode continuously between 01/08/2019 to 30/04/2020.
3. By PEX31 and PEX80, Prosecution demonstrated before this Court that during the alleged offending period the accused had been in 15 KM Kings Road, Koronivia 82% of the time and had been in Buca village, Cakaudrove only 18% of the time by the phone records. Further, referring to the several calls made during early morning hours and late night hours from the phone of the accused, which is an agreed fact, Prosecution was successful in demonstrating that these calls had been made from no public place, but from the residence of the accused in Koronivia without any challenge from the Defense.
4. However, the implied physical presence alone would not establish permanent residency of the accused to assert the falsity of the information provided to the Parliament, it needs to be corroborated that 15 KM Kings Road, Koronivia was the usual and settled abode of the accused continuously for a considerable period of time, together with his physical presence during the period in issue.
5. In this regard, on one hand, through the evidence of the accused and his wife it was affirmed to Court that they built a house in 15 KM Kings Road, Koronivia on the land they owned in 2015 by spending part of their savings amounting to $80,000, especially for Miliakere Nawaikula (wife) and the children of the accused to reside with all the necessary amenities. Further, the accused confirmed that when in Suva, he went to the Parliament and attended to his legal practice from his house in Koronivia. Still further, Mrs. Miliakere Nawaikula in her evidence categorically mentioned that 15 KM Kings Road, Koronivia was the home for her, the accused and the children. In cross examination, she confidently mentioned that where ever the accused go for work, he returns to Koronivia, since that is where she and the children lived and that is the matrimonial home of the accused.
6. On the other hand, in relation to residency of the accused in Buca village, though the accused had decided to build a house in Buca in 2015, still that house is under construction and not in a livable condition. According to the evidence of the son of the accused, Amosi Nawaikua, his father had been contemplating in moving to Buca since 2009. In addition, accused affirmed that when he goes to Buca he stays in the family house with his mother and his niece, which is now owned by his eldest brother. He also confirmed that since his brother’s children will own this property in the future, he might not be able to stay in this property for too long.
7. Though the accused confirmed of his involvement in the village committee and participating in village projects, the evidence of the headman of the village (Turaga-ni-Coro), clearly debunked the claim of the accused of his permanent residency in Buca village. Turaga-ni Coro reiterated that he is aware of all the residents of his village and the accused is not a permanent resident, though he comes for village committee meetings and special projects every now and then.
8. It was the contention of the Defense, since the Buca village, Buca Bay was the land of the Mr. Niko Nawaikula’s father and forefathers, Buda village is his permanent residence. However, this Court is of the view that there could have been some relevance to the land of the father and forefathers if we were considering the “Permanent Domicile” of the Parliamentarians in this matter. But Parliament in its wisdom, has referred to “Permanent Residence” in the MPIF and not “Permanent Domicile”, otherwise even a Parliamentarian having fathers and forefathers land in New Zealand would have been able to claim travelling to New Zealand under the Parliamentary Remuneration Act of 2014, because New Zealand was his domicile.
9. Further, though the accused reiterated in his evidence that one of the main reasons why he wanted to move to Buca village was to be closer to his voter base, according to PW4 from the Fiji Election Office, the address given by the accused to the Election Office had been Koronivia Nausori and his poling venue close to home had been Koronivia Service Station FEO shed. This address had been changed only on 02/12/2021 to Buca village, Natewa and the polling venue to Buca Community Hall. Surprisingly, though the accused represented Buca village from 2006, he had only changed his voting address to Buca village, 2 years after his arrest by FICAC on this allegation and when a case on providing false information to Parliament claiming Buca village as his residence was pending.
   1. In addition, though the Defense claimed that the accused wrote to the Secretary General of Parliament of his intention to move to Buca village, and informed his caucus of his intended movement to Buca village and had communications with the Chief Registrar about him opening an office in Svusavu, these events had no consonance of residing in Buca village and what was needed to satisfy the declaration he made by PEX3 was not the mere intention, but the actual permanent residency in the Buca village to make any claims under the Parliamentary Remuneration Act of 2014.
   2. In the light of the above evidence, it is perceptible that 15 KM Kings Road, Koronivia was the usual and settled abode of the accused continuously for 3 1/2 years to the start of offending period and during the offending period, as alleged by the Prosecution, making that his “Permanent Residence”. In this regard, his wife and family lived in 15 KM Kings Road, Koronivia and he went to work from there and continued his usual family life from there, requiring him to remain in this locality for 82% of the time period in question. Therefore, during the offending period, this Court can affirms that the Permanent Residency of the accused was not Buca village, but 15 KM Kings Road, Koronivia.
      1. In determining whether the accused knew or believed that the information he provided of his “Permanent Residence” to the Acting Secretary General to the Parliament to be false, it will be appropriate for this Court to consider a subjective analysis of the evidence available in Court of the conduct of the accused during the period in issue. In analyzing the evidence subjectively, the Court needs to be mindful that by the time of initial sitting of the Parliament in 2018, the accused was a legal practitioner with over 30 years of experience, He has also had an illustrious political career for close to 15 years, where he had been the Deputy Speaker and the Shadow Attorney General in the Parliament of Fiji. Therefore, the accused had been a professional and political luminary in Fiji. Further, giving evidence in Court, the accused affirmed of his knowledge and understanding about the gravity and the importance of Statutory Declarations as a civil law legal practitioner.
      2. In this matter, Prosecution lead evidence of several witnesses holding pivotal positions in our community and established that the accused had tendered his address as 15 KM Kings Road, Koronivia to their organizations even after tendering his address as Buca village, Buca Bay, Cakaudrove to the Parliament. In this regard, as confirmed by PW5, accused had informed the Legal Practitioner’s Unit (LPU) on 03/2020 that his permanent residence was 15 KM Kings Road, Koronivia in order to obtain his Practicing Certificate for 03/2020 to 04/2023. Further, according to PW5, in obtaining Practicing Certificates for the years 2017 – 2021, accused had maintained his address as 15 KM, Kings Road, Koronivia. As a Senior Lawyer in Fiji, the accused should have known the negative impacts of submitting false information to the body that regulates and holds disciplinary proceeding against lawyers, which could also result in the cancelation of his Practicing Certificate. To this end, it is common sense that the accused wouldn’t have given the LPU 15 KM Kings Road, Koronivia as his permanent address, if he knew or believed that his permanent address was Buca village, Buca Bay, Cakaudrove and not Koronivia.
10. According to PW6 from the Land Transport Authority, PEX65 was the license renewal application form submitted by the accused on 13/06/2019, which was 2 months after submitting PEX3 to the Parliament by the accused. In this application, the accused had mentioned his residential address as 15 KM Kings Road, Koronivia. Therefore, the evidence of this witness also demonstrated that the accused knew that his residential address during this period was not Buca village, but 15 KM Kings Road, Koronivia.
11. PW7 from the Immigration Department of Fiji confirmed of the accused mentioning 15KM Kings Road, Koronivia as his permanent address on the Arrival Card, dated 05/07/2019, marked PEX67A. This witness clarified that this form was a Statutory Declaration that was expected to be tendered by arrivals to inform Fijian authorities’ of their personal details, including the permanent address. Therefore, by PEX67A, the accused had confirmed his permanent address to be 15 KM, Kings Road, Koronivia to the Immigration Office 3 months after informing the Parliament by PEX3 that his permanent residence was in Buca village, Buca Bay, Cakaudrove.
12. The Court observed that when the accused was questioned by the Prosecution of him stating 15KM Kings Road, Koronivia as his residence in the above instances and on several other instances as lead in evidence, the accused callously mentioned those to be “mistakes” and mentioning that for convenience in some instances. In fact, during cross examination of the accused by the Prosecution, the accused had mentioned in over 25 occasions he had stated 15 KM Kings Road, Koronivia by mistake, including mentioning this address to the Immigration Department and the Land Transport Authority for his license. In this regard, Court noticed that the accused claimed it to be a “mistake” in the void of diminishing ability for him to give any other reason or provide an explanation. In this light, this Curt is doubtful of the tenacity and veracity of the evidence of the accused, in view of his unsatisfactory demeanor and deportment in Court.
13. In this background, in considering the veracity of the claims of the accused, Court was compelled to the thinking that if the former Deputy Speaker of the Parliament and the Shadow Attorney General with over 35 years of experience in the legal practice could make so many mistakes in tendering personal information to government authorities in the country, what could the Judiciary and the Bar expect from a layman in our community when providing information to the authorities.
14. From the above analysis of the evidence lead before this Court, this Court is content that the accused knowingly provided false information to the office of the Secretary General to the Parliament about his “Permanent Residence” as Buca village, Buca Bay Cakaudrove when it was 15 KM Kings Road, Koronivia. Therefore, this Court is satisfied that this element has been proved beyond reasonable doubt by the Prosecution.
    1. The second contested element in this Count that needs to be proved by the Prosecution is THE ACCUSED KNOWING IT TO BE LIKELY THAT HE WILL CAUSE THE PERSON EMPLOYED IN THE CIVIL SERVICE TO DO ANYTHING WHICH SHE OUGHT NOT TO DO OR OMIT IF THE TRUE STATE OF FACTS RESPECTING WHICH SUCH INFORMATION IS GIVEN WERE KNOWN TO HER.
15. In analyzing the evidence to consider the establishment beyond reasonable doubt of this element, this Court perceives that this element is very much interwoven with the first element. In this matter, the accused had admitted receiving the contentious payments from Parliament by PEX39 to PEX51, which the Prosecution alleges to be made by Parliament due to false information submitted by PEX3.
16. From the evidence lead, Prosecution established that the accused had claimed his permanent residence to be 15 KM Kings Road, Koronivia to several organizations, except to the Parliament. Further, even after informing the Parliament that his permanent residence was Buca village, Buca Bay, Cakaudrove, he has continued to claim that his permanent residence was 15KM, Kings Road, Koronivia to others on official business. In this regard, there wasn’t an iota of evidence to show that the accused had mentioned Buca Village, Buca Bay, Cakaudrove as his permanent residence to any other organization, except Parliament, until investigations commenced against the accused in this matter. In addition, during cross-examination of the accused by the Prosecution, the accused admitted that he maintained his own receipt book to submit acquittals for his travel claims to Parliament, when needed.
17. On the evidence analyzed above, this Court can confidently reach the conclusion that the accused knew that he was likely to cause the Acting Secretary General to the Parliament to authorize the reimbursement of claims he submitted on the premise he was residing in Buca village. In this process, for not to cause any suspicion in the Parliamentary administration, the accused never complained when the amounts he claimed were adjusted by the accounts division and, as stated above, he maintained his own receipt book to tender acquittals for shortcomings. As confirmed in the evidence of the Acting Secretary General, the accused was not initially suspected by her office for misusing the Parliamentary administration process to claim allowances and benefits. The Court can now perceive through evidence that the accused was not even initially suspected by Parliament, due to his pre-determined and well planned actions.
18. In scrutinizing the interlacing connection between the contested elements in this Count, this Court intends to take guidance from a Supreme Court decision of Fiji in relation to an offence under Section 135 (a) of the then Penal Code of Fiji, which is a mirror reflection of Section 201(a) of the Crimes Act 2009. In the case of Lane v Reginam[8], where it was alleged that the accused tendered false information to a police officer regarding a motor traffic accident, His Lordship Moti Tikaram JA stated as follows:

“The essence of the last ingredient is an intention on the part of the maker to mislead or knowledge on his part that his false statement was likely to mislead the public servant into doing or omitting to do something. Insofar as the present charge is concerned the Prosecution had by inference satisfied the court that the accused knew the likely misleading consequences of his act. Whether the public servant was in fact mislead or not is immaterial.”

1. In this case also, this Court is satisfied that the Prosecution has by inference proved beyond reasonable doubt that the accused knew that he will cause the Acting Secretary General to reimburse his claims, which she wouldn’t have done, if she knew that his permanent place of residence was not Buca village, Buca Bay, Cakaudrove.
2. In this light, this Court is content that the Prosecution has proved all the required elements in Count 1 beyond reasonable doubt. On this premise, this Court finds the accused guilty of Count 1 as charged.

Count 2

1. In relation to this Count, the Prosecution has already established some of the elements in the process of proving the elements in the 1st Count beyond reasonable doubt, such as the fact of the accused providing false information in relation to his permanent residence to the Parliament.
2. Further, some of the elements have been agreed between the parties, such as the accused receiving payments from the Parliament for the claims PEX39 to PEX51.
3. Therefore, the only contested element in this count that needs to be determined by Court is:

WHETHER THE ACCUSED KNEW OR BELIEVED THAT HE WAS NOT ELIGIBLE TO RECEIVE THAT FINANCIAL ADVANTAGE CONSEQUENT TO THE FALSE INFORMATION PROVIDED BY HIM.

1. With respect to this element also, Court needs to consider the facts available subjectively. In this regard, the alleged financial reimbursements had been provided by Parliament to the accused as per the Parliamentary Remunerations Act of 2014. By the time period in issue, the accused had been a seasoned politician, holding the post of deputy speaker of the Parliament at one time and a senior legal practitioner in Fiji with over 30 years’ experience.
2. In view of this, this Court cannot consider the accused to be an amateur in relation to Parliamentary procedures and applicable laws in determining allowances and benefits for Parliamentarians. Therefore, it is reasonable for the Court to presume that the accused was knowledgeable in this regard.
3. Further in giving evidence, Mrs. Viniana Namosimalua, the then Acting Secretary General to the Parliament of Fiji confirmed that just before the sittings in 2018, there were 2 inductions for Parliamentarians, where at the second induction administrative procedures for claims and allowances were explained. Consequent to this induction, her office had handed over the letter marked PEX74(b) to the accused, where it clearly detailed that a Parliamentarian would be only eligible for accommodation and traveling allowances if the Parliamentarian permanently resided 30 km away from the place of meeting of the Parliament.
   1. Since the accused had all this information before submitting the declaration (PEX3) to the Parliament and since it is now established in this trial that the accused was permanently resident in 15KM Kings Road, Koronivia, during the time period in issue, this Court can sanguinely reach the conclusion that the accused knew that he was not eligible to receive the subject financial advantage consequent to the false information provided by him to Parliament.
   2. On this premise, this Court confirms that the Prosecution has proved the required elements in the second Count beyond reasonable doubt and this Court hold the accused guilty of the second Count as charged.

Verdict of the Court

1. On the evidence lead in this trial, this Court finds the accused guilty for Count 1 and Count 2, as charged, and convict the accused on both Counts.
2. You have 30 days to appeal to the Court of Appeal of Fiji.
3. On a separate note, this Court wishes to thank the Counsel appeared for both parties in this matter, i.e. Mr. Valenitabua and Mr. Rokodreu for the Defense and Mr. Aslam and the FICAC Team for the Prosecution. Your professional approach to this trial was thoroughly appreciated by this Court.

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Hon. Justice Dr. Thushara Kumarage
At Suva
03rd of May 2022