The “conflicting” role of the Attorney General’s Office was questioned in the Supreme Court yesterday during the hearing of a million-tala lawsuit brought by Suitupe Misa against the suspended Police Commissioner, Fuiavailiili Egon Keil.
The matter was raised by lawyer, Seuamuli Sarona Ponifasio, who is representing Mr. Misa. The other respondents are the Ministry of Police and the Minister of Police, Sala Fata Pinati.
Justice Vui Clarence Nelson is presiding with lawyers Sefo Junior Ainu’u and Tafaiilagi Peniamina representing the Office of the Attorney General.
In Court, Seuamuli said a statement of defense from the Police Commissioner should be filed.
“It’s just that we want a response that either denies or admit (to the claim we are making) and we will put it on hold while the criminal (proceedings continue),” said Seuamuli.
The developments Seuamuli was referring to is the suspension of the Acting Director of N.P.O., Muriel Lui and Cabinet decision of “assumption of prosecutorial duties by the Office of the Attorney General”.
Justice Vui said the Attorney General is a man of many talents “perhaps he can prosecute and defend at the same time”.
Outside Court, Mr. Ainu’u declined to comment. He asked that questions be sent on email.
An email sent to the A.G.’s Office and Attorney General Lemalu was not responded to by press time.
Back in Court, Mr. Ainu’u said it is difficult to file a statement of defense without being able to interview the Police Commissioner.
“We would have provided affidavit but for the fact we were conflicted in the sense that we could not ask N.P.O. as it seemed to be interfering with their investigation,” said Mr. Ainu’u.
“Because we were interviewing the same witnesses at the time and we could not intervene with their investigation and we could not approach Mr. Keil due to the fact he had a different lawyer (in criminal case) and the only person that can file affidavit is Mr. Keil.”
Mr. Ainu’u argued that the difficulty of filing a statement of claim without interviewing the Police Commissioner is one of the issues of raised by plaintiff and “only he can tell us how he came with the decision to carry out the arrest.”
Justice Vui said “presumably Mr. Keil does not want to talk to you”.
The Judge then suggested if Mr. Ainu’u could file a statement of defense and once its considered, he would then issue a stay order.
“If counsels are agreeable to that - that would be my inclination to how we can progress this matter.”
Earlier on, Justice Vui had asked Mr. Ainu’u whether he agrees that the criminal proceedings will affect the civil proceedings directly or indirectly.
“If civil proceedings is ordered to proceed whether it’s civil or criminal he still has to disclose the nature of his defense – he is not trial by ambushed,” he said.
“Even criminal proceedings he will have to at some stage disclose the nature of his defense.”
But Mr. Ainu’u pointed out its his submission that the reservation of the defendant’s rights while there is a parallel proceeding in criminal Court.
But Justice Vui reminded Mr. Ainu’u that the Commissioner’s right is not a right of non-disclosure because he has to disclose his side of the story at some stage whether there is a criminal proceeding.
Mr. Ainu’u responded that at this point when there is already a criminal proceedings if “we were to disclose his version to reply to statement of claim we will be ineffectively answer it on his behalf because he has pleaded not guilty.
“What we are saying it will be disclosed but not at this moment…we will be relying on the same witnesses called in criminal."
“We don’t know what they will say in criminal case and it may affect our respond as they might say this now and during case they might change their respond.”
Mr. Ainu’u said they will be in better position after the criminal case and from then on can determine how to respond otherwise they would have to keep changing their response.
At this point, Justice Vui said he is trying to find a common sense solution to progress the matter.
“From the little I know what’s been happening there seems to be politics and personalities being brought into play and we all know that is not how we operate in the Court of law,” he said.
“I’m trying to see how we can accommodate a programme and at the same time protect everybody’s rights. We can waste our time discussing it but trying to find a common sense solution that is why asking all of this perhaps not relevant to this proceeding.”
The matter was adjourned to Friday 21 October for the Attorney General’s office to file a draft statement of defense.
Away from the million-tala lawsuit brought by Suitupe Misa, Fuiavailili has pleaded not guilty to charges including unlawful detaining of a person, disorderly conduct in a public place, perjury and making a false statement in relation to the wrongful arrest of Suitupe Misa. The charges were brought against him by the National Prosecution Office, now taken over the by the Office of Attorney General since two of its most senior lawyers have been suspended.