A Queensland exporter accused of systematically bribing Nauruan politicians for favourable mining deals on the Pacific island has applied to have a charge of foreign bribery permanently stayed, arguing “a fair trial is impossible” and accusing Australian authorities of mishandling the investigation and losing key evidence.
Court documents obtained by the Guardian reveal that lawyers for Getax Australia Pty Ltd have applied for a permanent stay. If successful, it would effectively permanently halt the company’s prosecution.
Getax Australia, a shipping and export company run by brothers Amit and Ashok Gupta and previously their now-deceased father, Govind Sahai, is accused of systematically bribing key politicians on Nauru in return for favourable deals on phosphate mining contracts.
The Getax case is one of the largest and most controversial foreign bribery cases involving Australian businesses and Nauru, a tiny Pacific state inextricably linked to Australia through a colonial history, Australia’s “enduring” offshore processing regime on the island and a continuing dependence on Australian aid.
A series of police investigations over more than a decade resulted in an indictment being laid against Getax. Presented to a court in January this year, it alleges one count of conspiracy to bribe a foreign public official.
The indictment alleges that between May 2007 and December 2012, Govind Sahai, Ashok, and Amit Gupta conspired with each other – “and unknown others” – to bribe Nauruan politicians and office bearers “with the intention of influencing foreign public officials in the Republic of Nauru in the exercise of their officials duties”.
The alleged offence occurred in Bundall, the site of Getax’s Australian headquarters on the Gold Coast, and is being heard in the Queensland district court. No criminal charges have been filed against any individuals; the foreign bribery charge has been laid against the company.
Lawyers acting for Getax argue the trial should be permanently stayed – essentially abandoning the prosecution – and that “the continuation of this criminal proceeding would amount to an abuse of the court’s processes”.
“A fair trial is impossible because evidence has been lost and essential witnesses have died causing irredeemable prejudice to the defendant [Getax],” an affidavit filed to the district court states.
“The loss of evidence and the unavailability of witnesses have happened because of unjustified and inexplicable delays in investigating and prosecuting the case by commonwealth agencies including the Australian federal police.”
The affidavit argues the commonwealth director of public prosecutions had been responsible for repeated delays in the case, missed deadlines imposed by the court and had failed to disclose documents it was legally required to.
“These developments, individually and cumulatively, give rise to a serious concern about the CDPP’s conduct of the prosecution of our client. The conduct magnifies prejudice already suffered by our client.”
Lawyers for Getax have sought comprehensive records and correspondence between the AFP and numerous government departments, including the Department of the Attorney General and the Department of Home Affairs.
“The CDPP’s failure to provide the requested documents in a timely manner … is seriously troubling. The lack of disclosure has prejudiced, and continues to prejudice, our client’s ability to … defend the proceeding.”
The court documents reference a “phosphate mining case” identified by the OECD in 2012, in which an Australian company allegedly bribed parliamentarians in a foreign country to obtain a phosphate mining permit.
Nauru, one of the smallest independent states in the world, is just 21 sq km, about the size of a city airport. Almost 80% of the nation’s landmass has been rendered unliveable through the strip mining of phosphate, largely by Australian, New Zealand and British companies. Secondary phosphate mining continues on the island, albeit a shadow of the former industry.
In the years immediately after independence in 1968, Nauru had the second-highest per-capita GDP in the world on the back of its massive mid-century phosphate royalties, behind only oil-rich Saudi Arabia. But its wealth was squandered by a series of incompetent governments who found extravagant and spectacular ways to lose money (including, notoriously, funding a disastrous West End musical based on the life of Leonardo da Vinci). Nauru’s central bank collapsed, the country’s real estate overseas was repossessed and its planes seized off foreign airport runways.
The Getax case is set for a pre-trial hearing in Brisbane’s district court on Monday.
