Lawyer’s memo released

By Deidre Fanene ,

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JUSTICE AT LAST: Police Commissioner, Fuiavailili Egon Keil (left with supporters outside Court.

JUSTICE AT LAST: Police Commissioner, Fuiavailili Egon Keil (left with supporters outside Court. (Photo: Deidre Fanene)

On Monday, the Supreme Court dismissed all the charges against Police Commissioner, Fuiavailili Egon Keil.

It followed a recommendation by independent prosecutor, Nigel Hampton QC, who investigated the charges. The recommendation is contained in a memorandum signed by the lawyer released yesterday.

Mr. Hampton was recruited by Attorney General, Lemalu Hermann Retzlaff, to handle the case.

“None of the allegations have been properly investigated by objective and independent investigators,” Mr. Hampton’s memo noted.

“Interviews of potential witnesses, of an acceptably rigorous standard, were not conducted. There was no explanation was sought from the Defendant."

“No appropriate (and necessary) legal advice was sought before charges were laid and the Defendant arrested.”

The Police Commissioner was arrested and thrown into a Police cell last November.

It happened when he returned to work days after the Court had dismissed the first lot of charges laid against him by the National Prosecution Office (N.P.O.).

On Monday, Mr. Hampton QC successfully sought leave for the court to withdraw charges.

Outside the Court, Commissioner Fuiava was relieved man.

“I always knew that if you did the right thing for the right reasons you will be okay,” he said.

“As Commissioner I took an oath to uphold the law to protect our people, country, government and I take that seriously.”

Attorney General Lemalu told Radio New Zealand he's satisfied the decision was reached in an appropriate manner. 

He said Mr. Hampton was brought in to handle the case independently.

"He was sent the full file from the N.P.O, [National Prosecution Office] office, just to make sure that the Attorney-General's office was not privy to any evidence because we wanted the final decision to be fully independent," Lemalu said.

"Obviously he [Mr Hamption] is a man with extremely high experience, including being Chief Justice of Tonga, so his independent decision is one that I don't have any issues or queries with."

The following is a memorandum to the Court by Mr. Hampton which highlight the reasons for his submission. 

 

INTRODUCTION

1. The Applicant has been charged with the following offences:

i. One (x1) count of Inciting, counselling and procuring to commit murder pursuant to  section 105 of the Crimes Act 2013;

ii. One hundred (x100) counts of Armed with a Dangerous firearm pursuant to section 25 of the Police Offences Ordinance 1961;

iii. One hundred and forty eight (x148) counts of being in possession of an unlawful weapon pursuant to section 12 of the Arms Ordinance 1961;

iv. Eight counts (x8) of Unlawful Intimidation pursuant to section 46(b)(i) of the Crimes Act 2013;

v. Six (x6) counts of threatening words pursuant to section 49(g) of the Police Offences Ordinance 1961;

vi. Two (x2) counts of Insulting Words pursuant to section 4(g) of the Police Offences Ordinance 1961.

 

BACKGROUND

2. The matter before the court had been referred by the Acting Director of the National Prosecution Office to counsel for an independent review of the charges and the evidence. 

3. Following the matter being called this morning, this memorandum to the court outlines the prosecution’s position.

 

POSITION

4. Having reviewed all the charges and the evidence, and independently from the defence application, it has been concluded that all the charges before the court should not proceed to trial and that all counts should be withdrawn, by leave, for the following summarized reasons :

 

4.1.1 None of the allegations have been properly investigated by objective and independent investigators;

4.1.2 Interviews of potential witnesses, of an acceptably rigorous standard, were not conducted.

4.1.3 No explanation was sought from the Defendant.

4.1.4 No appropriate (and necessary) legal advice was sought before charges were laid and the Defendant arrested.

4.1.5  If any of the matters in paragraphs 4.1.1, 4.1.2 and 4.1.4 above had occurred, then these charges would not have resulted.

4.1.6 At no time (and in relation to all of the counts) based on the evidence gathered, was the two-part evidential sufficiency test met (i.e. was there prima facie evidence of an  offence?; if so, was there a reasonable prospect of the prosecution succeeding?).

4.1.7 Furthermore, given the background and the history leading up to the arrest of the Defendant and the laying of these charges, the timing of such arrest, the “relationships” of all the police officers involved (including the Defendant) and, in a general sense the absence of any civilian/public involvement and the apparent lack of any “criminality” in relation to the allegations, the public interest test was not met (and never was). Indeed, to proceed would be manifestly not in the public interest. Such matters as, inevitably, will be raised, are best explored in an inquisitorial Commission of Inquiry and not in the context of an adversarial criminal trial.

4.1.8 In the circumstances it was not, and is not, in the public interest to proceed.

4.1.9 The whole of the investigation, arrest and prosecution case was and is deeply and irremediably compromised.

 

Respectfully submitted,

(Kenneth Nigel Hampton)

COUNSEL FOR THE PROSECUTION

Dated at Apia this of 2017

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