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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.AAU0020 OF 2010
CRIMINAL APPEAL NO.AAU0033 OF 2010
CRIMINAL APPEAL NO.AAU0015 OF 2010
BETWEEN:
1. RATU INOKE TAKIVEIKATA
2. FEOKO GADEKIBUA
3. BARBADOS MILLS
4. SIVANIOLO NAULAGO
5. METUISELA MUA
6. EPARAMA WAQATAIREWA
7. KAMINIELI VOSAVERE
8. PAULIASI NAMULO
Appellants
AND:
THE STATE
Respondent
Date of Hearing: Thursday, 16 December 2010
Counsel: Mr F Vosarogo for the Appellants
Ms N Wickramasekera for the Respondent
Date of Ruling: Thursday, 20 January 2011
RULING UPON APPLICATIONS FOR BAIL PENDING APPEAL
1. I heard bail applications pending appeal on 16th December 2010 as a Single Justice of Appeal in respect of eight men convicted by Mr Justice Madigan after trial before him and five assessors. After conviction they were sentenced by Mr Justice Madigan on 5th March 2010.
2. The following are the sentences of the Court being served by the eight appellants. In each case the conviction was for conspiracy with others between 1st August 2007 and 3rd November 2007 to murder Commodore Voreqe Bainimarama. The sentences are:
1st Appellant Ratu Inoke Takiveikata 7 years imprisonment
2nd Appellant Feoko Gadekibua 5 years 6 months imprisonment
3rd Appellant Barbados Mills 6 years 6 months
4th Appellant Sivaniolo Naulago 7 years imprisonment
5th Appellant Metuisela Mua 3 years 6 months imprisonment
6th Appellant Eparama Waqatairewa 3 years imprisonment
7th Appellant Kaminieli Vosavere 4 years imprisonment
8th Appellant Pauliasi Namulo 3 years imprisonment
3. The background to the case lies in the fact that certain persons became politically and economically dispossessed by the 2006 army takeover from the SDL party. One Ballu Khan and his trading company lost their political influence, their business and their prospects and he and the 1st Appellant Ratu Inoke were business partners. Apart from the 5th Appellant Metuisela Mua, who was an older statesman with a cameo role in the conspiracy most of the others were employed or contracted to either Ballu Khan or his company Pacific Connect. The 2nd, 3rd, 6th, 7th and 8th Appellants had been members of RFMF Counter Revolutionary Warfare Unit and a number of this group had been convicted of mutiny in the year 2000. It was alleged that this group was the brawn rather than the brain in the conspiracy.
4. The 4th Appellant Sivaniolo Naulago is a clever and promising business and IT executive with Ballu Khan and Pacific Connect. He does not have a military background. But he was found to be the chief planner and the person who set out the political aims and objectives of the group. For these aims and objectives the first necessary step was the killing of Commodore Voreqe Bainimarama.
5. The 5th Appellant Metuisela Mua was only present at one meeting and was brought in because of his reputation as a senior figure who could encourage the intended perpetrators but who would not personally take part.
6. Leave to appeal was given in all cases by Acting President John Byrne on 23rd of April 2010. It appears that without reasons given in writing Acting President John Byrne gave all eight appellants leave to appeal out of time against conviction and sentence.
7. In deciding bail I do not have to and must not endeavour to decide the appeals. But in order to understand the grounds of appeal I have had to read the relevant papers including the record which contains the evidence.
8. I form the view that that I should consider the case against all the Appellants except the 5th Appellant separately because it encompasses a wide picture on which there is lot of evidence much of it disputed by the 1st, 2nd, 3rd and 4th Appellants who gave evidence before Mr Justice Madigan and the five assessors.
9. The evidence tells us that Corporal Kuli a serving soldier and part of a counter intelligence unit, came across the conspiracy when he met Ratu Inoke. He was invited to join the conspiracy and went along with the invitation in order to learn about it, to gather evidence and ultimately to foil it.
10. Corporal Kuli attended a number of meetings with the leaders of the conspiracy. But what was also required was planning and training exercises. In the course of these he met the 2nd, 3rd, 6th, 7th and 8th Appellants who were to supply the necessary violence when the plan was executed. Corporal Kuli was asked to bring supporters to be included in the force that would carry out the conspiracy to murder. Three serving soldier colleagues took up this role and took part in the planning and having exercises. Major Navua, Kuli's superior also met with the leaders and created the appearance of a unit of the serving military who wished to join the conspiracy. All of these serving soldiers gave evidence at the trial before Mr Justice Madigan.
11. My preliminary assessment of this evidence against the seven appellants is that it involves essentially questions of fact for the five assessors and the learned judge. There were multiple meetings, conversations and activities. In evidence or through Counsel all seven explained their version of all these events. Their account was in detail a denial of the implicating actions and words attributed to them by prosecution witness Corporal Kuli and his boys.
12. Before considering the strength of the grounds of appeal against the seven I must direct myself on the binding principles of law which surround and enable appeals against conviction and sentence in Fiji. These are also the principles of law that must govern any consideration of the 5th Appellant's case.
13. In contrast to the position when the accused persons are applying for bail pending trial, there is no presumption in favour of granting bail pending an appeal following upon conviction. Section 3(4) of the Bail Act 2002 states:
"(4) The presumption in favour of the granting of bail is displaced where:-
(a) ...
(b) the person has been convicted and has appealed against the conviction."
14. Around the common law world it has been universally held that bail pending appeal should be granted only when the chances of success are exceptionally high. That view is reinforced by the Bail Act 2002 section 17(3) which says:
"(3) When a court is considering the granting of bail to a person who has appealed against conviction or sentence the court must take into account –
(a) the likelihood of success in the appeal;
(b) the likely time before the appeal hearing;
(c) the proportion of the original sentence which will have been served by the applicant when the appeal is heard."
Sentences of between three years and seven years are not the kind of sentence which will attract the principle of S17(3)(c). That applies to short sentences and in context a sentence of 3 years is not a short sentence.
15. Section 17 as well as section 3 lays down that while the policy of bail pending trial is in favour of granting bail, when it comes to bail pending appeal the policy of the law is quite different. Then in almost all cases, the person convicted after trial must remain serving the sentence until if he succeeds and his appeal is allowed without order of retrial, he emerges from custody as an acquitted person. Even then if finality has not been reached the, State may apply that he be remanded on bail or on custody pending an appeal by the State to a higher Court.
16. With regard to authority in Fiji adopting the policy I have stated, Miss Wickramasekera on behalf of the State cites Ratu Jope Seniloli and Ors v. The State Criminal Appeal No.41 of 2004. Amina Koya v. The State Criminal Appeal No.AAU 0011/96, and Dauna v. The State [2010] FJCA 43, AAU 0090 (20 August 2010).
17. It is worth quoting also a summary of Scutt JA in Matai v. The State [2008] FJCA 89 AAU 0038.2008 (22 December 2008) which sets out authority in mainstream common law jurisdictions. The summary is taken from the judgment of the Court in Chamberlain v. R No.1 (1983) HCA 13: (1983) 153 CLR 514:
"In Chamberlain v. R (No.1) [1983] HCA 13; (1983) [1983] HCA 13; 153 CLR 514 (2 May 1983) sets out the principles as applied in various common law jurisdictions, including Australia and the United Kingdom:
... power to exercised in 'special' circumstances: R v. Salon (1952) ALR (CN7), at 1054: Reg v. Southgate (1960) 78 WN (NSW) 44 (NSW Supreme Court)."
18. I now consider the grounds of appeal of the seven appellants (all except Mua).
19. Mr Vosarogo on behalf of the 7th Appellant has relied on written submissions. These are well argued. The grounds which have the
necessary high chances of success are those, says Mr Vosarogo, on behalf of the seven, that relate to Mr Justice Madigan's summing
up to the assessors. It is said that the direction on the burden and standard of proof are inadequate
or lacking. I can see nothing that can be reasonably disagreed with or argued about concerning the burden of proof. Concerning the
standard of proof the learned Judge said:
"How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of 'Guilty'. If you are not sure, your verdict must be 'Not Guilty'."
20. Bearing in mind what was said in such cases as R v. Hepworth and Fearnley (1955) 2 QB 600 to the effect that a number of forms of words will pass the test, I do not think that there is a moderate chance of success on this ground.
21. I have read the summing up of the evidence which runs for about one hundred or so paragraphs. There is lot of evidence. It is recounted fairly. In a case such as this with so much evidence it cannot be a deficiency to remind the jury of the evidence given by the witnesses whether for defence or prosecution. If it is argued that the judge in a criminal trial cannot make comments upon questions and arguments of Counsel, that would not seem to be the common law. What the common law focuses upon is that the Judge must make it clear that the facts are for the assessors and that if he makes a comment with which an assessor does not agree that assessor must reject the comment and rely upon his own assessment of the evidence.
22. While there may be arguable matters in the summing up of Mr Justice Madigan, my opinion of the chances of success is that they are not anywhere near the high chances of success so that this is an exceptional case in which I should grant bail to "the seven".
23. I now turn to the case of the 5th Appellant Metuisela Mua. His case is different because Kuli supported by his "boys" say that after a number of planning and training sessions there was a summons to Ballu Khan's house where they heard a talk of encouragement from a senior person holding the same general views as Ratu Inoke, the SDL and Ballu Khan. The person giving this talk was Metuisela Mua. There is no suggestion that Mua's role went beyond that of encouragement without participation.
24. In an eloquent address Mr Iqbal Khan for Mua submitted that Mua claimed to have not been at the meeting. Mua's evidence was that he had been at a funeral at the time this alleged meeting at Ballu Khan's house had taken place. The prosecution had been asked in cross examination if they had checked Mua's alibi. They said they had not made enquiries about the truth of this claim of Mua. Mr Mua did not call "alibi" witnesses.
25. While I think this ground of appeal is arguable I regret that in my opinion, after close examination of the relevant facts and the law, I do not think that its chances of success are high. The argument has a less than even chance of succeeding. The difficulty for Mr Mua is that the incident of the exhortatory address at Ballu Khan's house is not the actus reus of conspiracy for murder. It is a question of fact for the five assessors and ultimately for the learned judge on the relevant evidence. The opinion of the assessors and the finding of the learned judge was that they found it proved beyond reasonable doubt.
26. The problem for all the submissions of all the appellants is that this trial was essentially about facts from which inferences of a conspiracy to murder might be drawn. There is little law involved except for consideration of the summing up. In respect of that there is nothing more than arguments that leave less than even chances of success.
27. Having examined the facts and applied the law, I regret that I must refuse the applications for bail made by all eight appellants.
William R. Marshall
Resident Justice of Appeal
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