Moti's decision reversed

Susan Merrell




Last month the Court of Appeal in Brisbane set aside a previous ruling of the Supreme Court whereby Fiji-born Julian Moti, former attorney-general of the Solomon Islands, had been granted a permanent stay of prosecution.
Moti is now scheduled to go to trial and defend himself against the charge of having sex with a girl under the age of 16 years in Vanuatu in 1997.
All three Court of Appeal justices were unanimous on the finding that the stay should be set aside and the matter proceed to trial.
Justice Cate Holmes in her summing up identified two crucial errors she considered were made in the original judgment. Firstly, that the payments made to witnesses that Justice Debra Mullins had deduce “brought the administration of justice into disrepute” when she granted Moti’s stay application were not meant to procure evidence, and secondly, that while the payments were outside the guidelines, they were not illegal. However, the fact remains that it was not the alleged victim who initiated the complaint against Moti in this instance, but Australian High Commissioner in Honiara, Patrick Cole. Damning evidence was produced in court that attested to his reasons—they were political. 
Furthermore, the alleged victim was not contacted or a complaint taken from her until over a year after the commencement of the investigation. It’s way beyond the pale of believability to expect that the deal for the payments would not have been struck up simultaneously on procuring her cooperation.
As to the second point that the payments were ‘outside’ the guidelines but not ‘illegal’, surely this is playing with semantics; a ploy to which the learned judge resorted to on a number of occasions.
She talks of the payments being “…outside but not in breach of existing guidelines”. On another occasion she states: “…although her Honour [Justice Debra Mullins] made the observation that the fact that the expenditure was certified by an Australian Federal Police officer did not mean it was proper, she [Mullins] did not make any finding that it was improper.” In both cases, surely, the one implies the other.
Peter Pena, Moti’s lawyer in Papua New Guinea, expressed outrage at the ruling. Pena, who was present in court for the appeal stated: “This is an extraordinary judgment. It’s the first of its kind in the Commonwealth. The net result is that a Court of Appeal in Australia has legitimised the bribing of witnesses by the Australian Federal Police.
“This is especially disturbing as the ruling was made in the law courts of a country that prides itself on its transparency of governance and the integrity of its judiciary,” he added.
Furthermore, Pena described the decision as ‘a magnificent example of buck passing’. He said the judiciary had laid the problem squarely at the feet of the executive although there were clearly precedents where the courts had intervened when there had been wrongful conduct on the part of the authorities.
“Moti shouldn’t be disadvantaged because of the executive’s failure to provide adequate guidelines and the authority’s eagerness to take advantage of that situation.”
Indeed Justice Holmes in her summation leaves no doubt as to her opinion of the dubious nature of the witness payments.
She concedes: “The payments in this case might have been ill-advised for a number of reasons. [for example] They were liable to have an adverse impact on the credibility of the witnesses who received them; cross-examination was likely to be directed to establishing that their enthusiasm for maintaining their accounts was the result of the favourable treatment they had received.”
But she went on to add: “As to whether the payments were efficient and effective…whether they amounted to an intelligent use of resources…seems a question entirely within the province of the executive.”
She had passed the buck. It means neither the Australian judiciary nor the Australian executive are willing to take responsibility for the morally bereft practice of the bribing of witnesses and stop it.
The charges Moti will now face were laid under Australia’s sex-tourism act that was invoked despite the fact that Moti had faced the Vanuatu courts previously on the same allegations and had been found to have no case to answer.
The Australian charges were laid almost a full decade after the alleged commission of the crime.
But it was the fact that the Australian Federal Police had paid substantial amounts of money—up to A$150,000—to the alleged victim and her family that concerned Justice Mullins enough to grant Moti a permanent stay of proceedings.
While the learned judge shied away from calling the payments ‘bribes’, it was the clear implication—as the payments to the witnesses in Vanuatu amounted to many times the average wage. However, she did call these payments an “affront to the public conscience.”
Yet what Justice Mullins failed to do by dismissing Moti’s other grounds was to address the reasons why the Australian Federal Police were prepared to go to such lengths to secure the testimony. In particular, the charge of the prosecution being politically-motivated by the Australian authority’s desire to remove Moti from political influence in the Solomon Islands.
And although Moti’s legal team did reintroduce these grounds in a ‘Notice of Contention’ in the Appeals Court, the court was not prepared to find against the original rulings of Justice Mullins.
As to what Moti will do next: he has indicated  he will definitely seek special leave to appeal to the High Court for the final and conclusive resolution of the matter.