Justice Leka Nablu today granted leave to an application that was moved by Director of the National Fraud and Anti-Corruption Directorate, Matthew Damaru, on May 18, asking the court to review that decision of Magistrate John Kaumi.
Magistrate Kaumi dismissed the case and the information that was laid against Sir Bernard.
The Committal Court’s view was that it does not have jurisdiction to prosecute or commence a criminal proceeding against Sir Bernard, who occupies a judicial office because certain laws were not complied with.
Sir Bernard was charged with one count of judicial corruption, contrary to section 119(2)(a) of the Criminal Code Act. Under section 119(5), prosecution of an offence against a person who holds a judicial office “cannot begun except on the direction of the Public Prosecutor”.
Damaru and Inspector Joel Simatab, as police investigating officers, were aggrieved by the committal court’s decision and filed this judicial review proceeding in the National Court.
Justice Nablu was satisfied they had an arguable case because it was of public interest, raising serious issues.
Amongst issues raised was when prosecution commenced in a case, at what time the Public Prosecutor’s directions under section 119 are required and if the magistrate has the discretion to consider other applications during the committal process.
All these issues raised will be looked at by the court in the proper review trial.
Justice Nablu, in granting leave, was also satisfied Damaru and Simatab had sufficient interest as investigating officers and had exhausted all available remedies before coming to court.
She was however, concerned over the state’s lack of interest in the proceeding in the leave stage because no representative from the Solicitor General’s office assisted the court with submissions.
“It’s quite concerning that the Solicitor General does not see this as a case of public importance or interest where the state, as a named defendant, should be present in these proceedings.
“As a senior state lawyer and one of the senior court officials, the Solicitor General not only represents the interest of the state, he or she has an ethical duty to the court.
“To fail to attend at the leave application and assist the court is unacceptable and disrespectful to the court,” Justice Nablu said.
Substantively, the senior police officers are asking the court to quash the decision of the Committal Court dated 7 June 2016, and compel the district court to rehear the committal proceeding before a different magistrate.
The matter returns to court on June 13 for directions.