Court ruled to stay criminal charges against Malietau, ordered prosecution pay $1K


The Attorney General’s office has been ordered to pay $1,000 to the former Electoral Commissioner Malietau Malietoa.

The order was made by Supreme Court Justice Lesātele Rapi Vaai in his recent ruling in a criminal case involving Malietau. 

Malietau was charged in 2019 for obtaining by deception over an incident that allegedly occurred in 2014 at the time he was Electoral Commissioner. 

According to Justice Vaai in his ruling issued last month; in August 2014, the Electoral Commissioner received an email inviting two participants from his office to attend a workshop at Palau in October 2014. All expenses including economy travel, accommodation and allowance were to be met by the workshop sponsors. 

Target participants for the workshop were Electoral Commissioners, IT Managers, support staff, and electoral operations staff.

The PDF invitation letter together with the attached travel itinerary was forwarded by the applicant to the principal IT officer of OEC to convert into WORD form.

With the invitation letter and travel itinerary in WORD form, Malietau was able to make alterations to both documents before he prepared the submission to Cabinet to approve his participation, his travel upgrades to business class as well as his daily subsistence allowance (DSA).

In a separate subsequent Cabinet directive dated 8th October 2014, Cabinet approved the Malietau’s annual leave from the 12th to 17th October to enable him to attend a royal wedding in Tonga.

The Palau workshop was changed from the 6th October to the 20th October.

Immediately after the applicant’s departure in October the principal IT officer triggered investigations into the applicant’s alleged tampering with the invitation letter and travel itinerary.

He was obviously hurt that he was not included in the trip to Palau.

The Public Service Commission was alerted resulting in the appointment of the investigator in December 2014, to investigate the contents of the Cabinet submission.

Justice Vaai says common sense dictates that in or about February 2019 there was a reason or reasons for the report not only to re-appear but also to be treated with urgency by the Attorney General.

Malietau has provided the reason.

“He filed a lengthy affidavit with annexures to support his contentions. The prosecution has remained silent. Its silence tips the balance.

“The applicant’s argument of abuse is reinforced by the twelve information filed by the police.

“Obviously, the police investigating officer obediently followed the written instructions of the Attorney General by bringing in the applicant to the police station, going through the motion of caution, made aware of the twelve charges and having him remanded before the deputy registrar. Witnesses interviewed by, and gave written statements to the Public Service Commission investigator, were also talked to and their written statements were copied and pasted.

“When the twelve pieces of information were sworn before the deputy registrar, the police investigating officer knew very well that the charges he laid were not the product of a police investigation, yet he willingly took oath “that he had reasonable cause to suspect and do suspect…”

“In addition to the two allegations of altering the invitation letter and travel itinerary, as well as using the altered documents for personal and financial gains, eight other pieces of information were added.

“Two pieces of information allege he made up the invitation letter and the itinerary and the other two allege he used those two false documents for financial and personal gain. Another piece of information alleges deception by using the same travel itinerary to obtain AUD$3,500.

“This allegation was not revealed or the subject of the Public Service Commission investigation. If the Attorney General simply reviewed the PSC investigating report, and the police did not investigate, there is simply no evidential basis for this allegation.”

Justice Vaai said this is a “glaring example of abuse” is provided by informations 1000/19 and 1002/19.

“Information 1000/19 alleges knowingly uses the amended travel itinerary whilst information 1002/19 alleges using the altered travel itinerary.

“Two other informations alluded to in [51] are of the same vein. Information 1003 alleges using the travel itinerary to obtain AUD$3,500 and information 1004 alleges using the same travel itinerary to obtain AUD$794, NZ$994, and US$693.

“The time wasting exercise was obviously not for a legitimate or proper purpose. Police should prosecute, not persecute those whom it accuses of crime.

“Criminal charges were initiated at the time the applicant, together with other individuals and organisations featured prominently against the proposed Government multi-million dollar project. Their protests had gained speed and popularity.”

Justice Vaai further noted the inherent power of the Court to stay or dismiss a prosecution for abuse of process was observed recently by Perese CJ in Sione & Paulo v Police.

“The rationale for the exercise of the Court’s power to protect its own process was explained by Richardson J in the New Zealand Court of Appeal in Moevao v Department of Labour:

It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression.

The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration.

But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.

“The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse.

It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law.” 

Justice Vaai says the question is not whether the prosecution should have been brought but whether the Court should permit its processes to be employed in a manner which gives rise to unfairness.

“Obviously the purpose of criminal proceedings, generally, is to hear and determine whether the conduct of the accused constitutes an offence and therefore deserve of punishment. It is not abuse of process if the criminal process is used only for that purpose. Abuse of process occurs when the process of the Court is manipulated for a purpose which in the eye of the law, it is not intended to serve.

This is best explained by Richardson J in Moevao v Department of Labour:

“It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted.

There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by the State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case.

It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice.

It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.”

Furthermore, Justice Vaai pointed out that “the initiation of the criminal charges against the applicant was for an ulterior motive, and if allowed to continue would lead to the misuse of the Court process.

“It will be inconsistent with the recognised purpose of the administration of criminal justice and will prejudice the integrity of the judicial system. It constitutes an abuse of process.

“The twelve informations filed against the applicant are stayed. Prosecution to pay the applicant costs of $1,000.”