State seeks mistrial in Health Tender trial

The health tender trial involving former Health Minister Neil Sharma, former Prime Minister Voreqe Bainimarama and former Attorney-General Aiyaz Sayed-Khaiyum has been halted after the State applied for a mistrial.

Assistant Director of Public Prosecutions Laisani Tabuakuro made an oral application today under Sections 289 and 290 of the Criminal Procedure Act.

The application followed a series of objections raised by Sharma’s lawyer, Wylie Clarke, over the State’s attempt to admit evidence through its second witness, former Fiji Independent Commission Against Corruption (FICAC) investigator Alivereti Wakanivesi.

Clarke raised another objection on Wednesday afternoon after Tabuakuro attempted to tender electronic evidence which he argued had not been lawfully obtained by FICAC in 2011.

The evidence included email correspondence between Sharma and Hospineer director Vashu Devan.

Proceedings became tense when Tabuakuro told the court she was frustrated that Clarke’s objections were being allowed, claiming they amounted to special treatment.

She argued the repeated objections were disrupting the State’s case and were prejudicial to the prosecution.

Tabuakuro said such objections should have been raised during the preliminary stages of the proceedings and that Clarke should have filed a formal motion.

She said all documents had been disclosed to defence lawyers two years before the trial and it was inappropriate to raise such issues during the hearing.

Clarke opposed the mistrial application, describing it as unnecessary, inappropriate and unwarranted.

He said the State had been meticulous about its evidence from the beginning but had failed to explain why there was no search warrant.

“Where is it?” Clarke asked Tabuakuro.

Clarke argued that a fair trial required proper testing of evidence and that the State could not tender documents through a witness who was not the author.

During submissions, Tabuakuro attempted to interrupt Clarke before the court told her to “sit down and behave in the courtroom”.

Clarke maintained that Wakanivesi was a secondary source who had only received the documents and was therefore not the appropriate witness to tender them.

“This is gross overreaction to these emails illegally obtained,” he said.

Lawyer Devanesh Sharma, representing Bainimarama and Sayed-Khaiyum, supported Clarke’s position and described the mistrial application as misconceived.

“Any accused person under the Constitution has the right to have unlawfully obtained evidence removed,” Sharma said.

He said the court had not given Clarke special treatment and had dealt with the matter lawfully and fairly.

The State will file a formal application today, after which the defence will respond by next Monday.

The court will hear the application next Tuesday.