&nbB> span>
<
6. &nbssp; &&sp;& &nnsp;& &nnbsp Inan>In fact, it is my duty, to deny the prosecution application.an>
>
The prosecution then closed its case (having called a total of 28 witnesses) and the defence made a submission that there was no case
to answer.
From the court record, the prosecution does not appear to told the learned Chief Magistrate, why those two witnesses were important
for the prosecutiecution. The Chief Magistrate himself did not ask the prosecution, nor did he consider the seriousness of the case
before him. However the record does show some latitude to the prosecution in the previous appearances. A further adjournment was
allowed for disclosure on 28th August 2000, and on the 6th of March, when both prosecution and defence were not ready, the hearing
date was vacated on 6th March. Further, the two witnesses named by the prosecutor were not present in court on the 6th of March,
I assume because they were not summoned by the prosecution. Finally, when the trial eventually commenced on 22nd May 2001, the prosecutor
did not tell the Magistrate as he ought to have done, that two of his witnesses were out of the country and would not be available
until September. The result was that the court embarked upon a trial which the prosecution knew would be part-heard (if the adjournment
was granted).
The Chief Magistrate’s reference to seeking the permission of the cou travel, is erroneous. Where a witness has not been issued with
a subpoena, and has not beet been warned to attend court there is no legal obligation on him to come to court at all. There is no
obligation to seek the court’s permission to travel, and no restrictions can be imposed on witnesses, or anyone else, who are not
subjected to a specific court order.
Having said that however, the Chief Magistrate having heard 28 witnesses for the prosecution was faced the prospect of an adjournment
of 4 months, in the middle odle of a criminal trial involving 10 accused persons.
In Rajesh Chand & Shailesh Kumar -v- The State Criminal Appeal No. AAU0056 ofS the Court of Appeal considered a decision of the High Couh Court to set aside an acquittal in the
Tavua Magistrates Court, entered after a refusal by the Magistrate to grant the prosecution an adjournment. At page 4 of its judgment
the Court of Appeal said as follows:
“The principles upon which an appellate couruld act when reviewing a decision by a judge or magistrate to grant or refuse adjournment
aent are well settled. The judge or magistrate has a discretion as to the proper mode and time of trying an action. The exercise
of that discretion should be interfered with by an appellate court only in exceptional cases. If it appears that the result of the
order made in the court below is to defeat the rights of the parties altogether or to do an injustice to one or other of the parties,
the appellate court has a duty to review such an order. Where the refusal of an adjournment would seriously prejudice a party, the
application should be granted. If not granted, an appellate court will intervene if the discretion has not been exercised judicially
or where its exercise was based on a wrong principle or resulted in an injustice: Maxwell -v- Keuri (1928) 1KB 645; GSA Industries Pty Ltd. -v- NT Gas Ltd 24 NSWLR 7110.”
In this case, although the Chief Magistrate erred in finding that his permission was necessary before witnesses could travel abroad,
theecution did not explain whyn why the two witnesses were important to the prosecution, and in what way the State’s interests would
be prejudiced by their absence. At the hearing of the appeal, counsel for the Respondents submitted that those witnesses could not
have assisted the case at all because their evidence was based on hearsay intelligence reports of the activities in the Kalabu Fijian
School. State Counsel conceded this but said that they would have given further evidence, not disclosed to the defence, on the question
of the common purpose of the assembly. However, no further statements have been recorded from these witnesses, and to this day, no
one (other than the State) knows what the further evidence was going to be and why it was important to the State’s case. It is also
possible that the Defence would have objected to the evidence being led in any event, on the ground that non-disclosure prejudiced
the right of the defence to adequately prepare its case, and the Constitutional right to disclosure.
In these circumstances, I do not think that the learned Chief Magistrate erredefusing to adjourn the case. The charge had been laid
9 mon9 months previously, a hearing date had previously been vacated (partly because of the prosecution), the prosecution had never
told the court of these witnesses before the trial commenced, and a long adjournment in the middle of a criminal trial in which 28
witnesses have given evidence is never a desirable thing. Finally he was not told why the two witnesses were crucial to the prosecution
case, and how the State’s case was prejudiced by their absence.
For these reasons, this ground of appeal fails.
&nbs> Ground (b)
In this ground, the Appellant says that the learned Chief Magistrate should have drawn inferences that persons in the community were
afraid and that therefore the assembly was unlawful.
Section 86 of the Penal Code provides:
“When three or more persons assemble with intent to commit an offence, or, bassembled with intent to carry out some common purpose,
con, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled
will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons
to commit a breach of the peace, they are an unlawful assembly.
It is immaterial that the original assemblas lawful if, being assembled they conduct themselves with a common purpose in such a mannemanner
as aforesaid.”
Section 87 of the Penal Code provides:
“Any person who takes part in an unlawful assembly is guilty of a misdemeanour, and is liable to imprisonment for one year.”
The evidence led by the prosecution was that on the 18th of July 2000,Manager of Dee Cees Bus Company was requested by the military
to uplift people from Parliamrliament to take them to various places in 10 buses. The next day, the 19th of July, two Dee Cees drivers
picked up people from Parliament and dropped them all off at Kalabu Fijian School. One of the drivers, Bal Raj, described these people
as “rebels.” On that day a teacher at the school sent the children home because carrier loads of people came from Parliament to the
school.
Ratu Inoke Takiveikata gave evidence that he associated with George Speight’s groups and with the military and that Georeight’s group
was at the sche school to complete the Fijian ceremony called “qusi ni loaloa.” His evidence at page 16 of the record was as follows:
“I was aware there were people in Kalabu. I went to the owners of the land on which Kalabu Fijian School stands and sought their permission
for the Speight’s group to go to Kalabu Fijian School and they agreed. They went there to complete the “qusi ni loaloa”. This is
to thank Speight’s supporters for supporting him. This involves a Fijian feast. I used to visit them in the afternoon.”
Nilesh Chand and Daya Nand gave evidence that they were selling fish at the Laqere Fish Market on the 19th of 2000 in their separate
stae stalls, when people in the Dee Cees buses who came from Parliament took their fish without paying. Daya Nand said that the people
took his fish, and told him to keep quiet or he would die. Nilesh Chand said he was afraid. They could not identify the people who
stole their fish.
Mohammed Subrati a shopkeeper gave evidence that on the 19th of July he was selling his groceries when five Fijian youths came and
demanded tinned fish and tinned meat. He asked for money but they said that they were Speight’s supporters and that if he didn’t
give them the groceries, they would burn the shop. His evidence then was:
“I told them to take anything but not burn the shop. They took groceries. There were 60 to 70 people outside. They came from a nearby
Fijian school. I helped them also carry the goods to the school.”
He could not identify any of the people who came to his shop.
On the 27th of July 2000, there was a military operation to disperse the crowd gathered at the Kalabu Fijian School.
Several Army Officers gave evidence that they arrived at about 6 a.m., they asked the crowd to come out, they did not, aat they shot
in the air to r to make them come out. Warrant Officer Sairusi Davui said that all the Respondents were in the crowd and they were
handed over to the police. One of the military officers was shot that morning, and some of the rebels were injured. He said that
the people who gathered at Kalabu Fijian School came from the Parliament complex, and that there were CRW soldiers there, as well
as criminals. The soldiers were taken to the Army Camp, and the criminals and members of the public to the Police Mobile Unit.
Superintendent Aisea Vakamocea said that the Nasova Gym was prd for the people at Kalabu Fijian School and that 354 people were there
altogether. Captainptain Eroni Bale, one of the Army Officers in the operation, gave evidence that there were 300 people at the Kalabu
Fijian School and that he had found one gun, an Uzi submachine gun, at the school.
All the Respondents were interviewed under caution by the police. There were no objections to the admission of their statements. The
1st Respondent admitted going to the school to take food to those assembled there. He was asked what the purpose of the gathering
was and he said: “Because I am an indigenous Fijian and I’ll fight for my land.”
He admitted that in supporting the cause he was going against the Government of the day and said he wanted a Fijian government to
run so that their land would be safe.
The 2nd Respondent admitted that he was at the school and he had also been at Parliament. He said he followed the group to the Kalabu
Fijian School.hool. He said the purpose of the gathering was to show support for George Speight.
The 3rd Respondent admitted he was at the school with about 400 people. He said he only went to drink grog and that he was not part
of the group at Parliament.
The 4th Respondent’s interview was not tendered. He said nothing when he was char/span>
The 5th Respondent admitted he was at Kalabu Fijian School and that he had followed his group. He said the leaders were Ligairi and
Gend George Speight and that he had also been in Parliament.
The 6th Respondent admitted that he had been at the school and said he went to visit his brs who were there. He said he saw no criminal
activities thes there.
The 7th Respondent admitted being at the school saying that he had gone there on the 25th of July to support those who were there.
He said the real purpose of going there was that he supported “the fight for the indigenous people to be recognised.” He said that
they had moved from Parliament to the Kalabu Fijian School “to do the “qusi ni loaloa” on Friday 28/7/00 and then to disperse on
Saturday 29/7/00.” He said he had not been in Parliament.
The 8th Respondent admitted he had been at the school and said he went to visit the boys from the village. He said the purpose of
the gathering was to do the “qusi ni loaloa.”
The 9th Respondent admitted he was at the school and said the purpose of the gathering was to conduct the Fijian ceremony. He said
that he did the cohe cooking.
The 10th Respondent said that he had gone to the school to visit his relatives and drink grog and that hegone there on 26th July 200y
2000. He said the leader of the group was George Speight and that the purpose of the gathering was “to await the ceremony of qusi
ni loaloa” after the staging of the coup. He said he had also visited the group at Parliament.
When he was charged he said he had been arrested at Kalabu “because of the unlawfuembly.”
The evidence before the Chief Magistrate was that the group at Kalame from Parliament, and that others joined them at the school.
The evidence was that some mome members of the group had intimidated some people in the neighbourhood into supplying food for the
group. The evidence was that all the Respondents knew that the group at Kalabu had come from Parliament. Some Respondents said that
they were there to support the “cause”, others to take part in the “qusi ni loaloa” to thank those who had effected the coup. It
was not suggested by the prosecution that the Respondents had done anything unlawful, other than to take part in an assembly which
was unlawful. It was not suggested that they stole fish or groceries or shot anyone. A significant piece of evidence was that a submachine
gun was found by the soldiers who raided the school.
The Chief Magistrate said that there was no case fe Respondents to answer because the prosecution failed to link the food stealing
to the Rese Respondents, and failed to prove that the Respondents intended to resist the appointment of an Interim Government. He
declined to take judicial notice of the activities in Parliament and said at p.38:
“The prosecution also failed to offer any specific unlawful conduct, done by each of the accused individually, or as a group, that
caused the neighbourhood to fear, that they will commit a breach of the peace.”
For the reasons I now give, I am satisfied that the Chief Magistrate erred in making this finding.
An unlawful assembly becomes unlawful (even if the purpose of the assembly was originally lawful) when the persons assemblot necessarily
the accused used persons as long as they were part of the assembly) conduct themselves in a manner that people in the neighbourhood
will reasonably anticipate a breach of the peace. In the case of Abdul Sattar & Ram Gopal -v- Reg [1960-1961] 7 FLR 14, Lowe CJ said that an unlawful assembly charge has the following elements:
1. &nnbsp; & nnbs;& Than>That thrt three or more persons assembled;
2. ;&nspp;&nssp;&nbs; &nbp;
3. &nbbsp;&&nsp;;&nsp; Tsp; That the persons asedmbled conducted themselves in such a manner as to cause persons in the neighbourhood
reasonably to fear that they would commit a breach of the peace; or, that persons in the neighbourhood arsed reasonably to fear that
that the persons assembled will, by such assembly, needlessly and without reasonable occasion, provoke other persons to commit a
breach of the peace.
Abdul Sattar was a case of riot, but in order to prove a riot, the prosecution has first to prove an unlawful assembly. It was also held in that
case, that:
“...under the law as at present in force in Fiji, if evidence shows that events took place which, of their very nature, must have
put people in fr terror it is not only supy superfluous but also unnecessary to call direct evidence of the fact of a natural consequence
of those events so far as fear in or terror of the public is concerned.”
In Ratu Osea Gavidi & Others Lautoka Supreme Court Crim. App. No. 11 of 1982, Williams J, in considerhether an assembly of landolandowners at the Fiji Pine Commission
was unlawful, declined to take judicial notice of the fact that the landowners had unlawfully blocked roads to forests and had tried
to intimidate the government by violence. At page 4 of his judgment, his Lordship said:
“The wording of section 86 clearly demonstrates that instances ofwful behaviour or unruly behaviour threatening the peace should be
alleged and proved so asso as to show in the words of the section that members of the assembly did “conduct themselves in such a
manner as to cause persons in the neighbourhood reasonably to fear..........”
Although the Chief Magistrate relied heavily on this decision, not think that it helped the defence. The prosecution did lead evidence
of unlawful activictivities of some members of the group. Firstly there was evidence that some members of the group stole fish from
two separate fish sellers at the Laqere Bridge. Secondly there was evidence that 80 to 90 members of the group (a large number by
any standards) stood outside a grocer’s shop while four of the group threatened the grocer and forced him to deliver groceries free
of charge to the school. Thirdly there was the evidence that the group at the Kalabu Fijian School was armed with a submachine gun.
Even if the evidence that the group came from Parliament, and were led by Ligairi and Speight, was ignored, there was ample evidence
that some members of the assembly were in fact acting unlawfully and in a way which actually caused people to be afraid for their
safety. It is logical, given the very public position of the Laqere Bridge and the large numbers of people gathered at the school
and on the buses on the way to the school, that persons in the neighbourhood would be reasonably in fear that breaches of the peace
would occur.
It does not matter that the common purpose was the holding of Fijian cerem. It does not matter that the Respondents themselves did
noid not steal fish or groceries or shoot anyone with the submachine gun. What matters is that there was evidence that they were
part of the group from which other members behaved in this way, and that their conduct led people in the neighbourhood to fear breaches
of the peace.
In the well-known case of Caird & Others -v- R (1970) 54 Cr. App. R. 499, a case of a riotous assembly at the n House Hotel in Cambridge,idge, it was held that where persons in a crowd, however peaceful
their original intention, start to act in a way that causes reasonable citizens to fear a breach of the peace, the assembly becomes
unlawful. Any person who actively promotes or encourages an unlawful assembly is guilty of an offence, and any person who participates
in it. As Sachs LJ said at p.505:
“It islaw - and, indeed, in common sense it should be the case - that any person who actively ency encourages or promotes an unlawful
assembly or riot, whether by words, by signs or by actions, or who participates in it, is guilty of an offence which derives its
great gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose.”
As to the evidence that the group came from Parliament, and that they wt the school to support George Speight and indigenous rights,
a judge or magistrate is enti entitled to use general information and general knowledge of the common affairs of life which men of
ordinary intelligence possess, but they may not act on their personal or private knowledge (Ingram -v- Percival (1969) 1QB 548). The sort of information which they have accepted without hearing evidence of it, was that certain parts of the town
are frequented by prostitutes (Paul -v- DPP 90 Cr. App. R 173) and that an area is heavily populated. The High Court, in Chandrika Prasad -v- The Republic of Fiji Civil Act. No. 217/2000, took judicial notice of the fact that on the 19th of May there was an armed invasion of the Parliament which
resulted in the then Prime Minister, members of the Cabinet and other members of Parliament being taken hostage. There was evidence
led as to this takeover, led by “George Speight and his supporters” in the Court of Appeal (Civil Appeal No. ABU0078 OF 2000S) and
the fact of the takeover and the hostage situation in Parliament has now been the subject of judicial acceptance in several cases
in the High Court. Although I doubt that details of the takeover, or the personnel involved could be the subject of judicial notice,
the facts of the takeover and of the hostage crisis leading to an emergency law and order situation in Fiji are now clearly notorious
facts on which the courts have relied in the last year. In that sense, I do not think that Ratu Osea Gavidi & Others assists. There can be no comparison between the armed takeover of Parliament in 2000, and the landowners dispute with the Fiji Pine
Commission in 1981.
For these reasons the Chief Magistrate could also, in considerinther members of the group had conducted themselves so as to cause
fear of breaches of the pthe peace, have considered that the Kalabu Group came from the Speight group in Parliament and were linked
to the armed takeover of Parliament. There could be no better evidence of the third ingredient of Unlawful Assembly.
I find therefore that the Chief Magistrate erred in failing to consider the evidence of “reasonable fear of breach of the peace.s
ground is upheld.
Ground (c)
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I have dealt with the relevance of Ratu Oavidi (supra) and Abdul Sattar & Ram Gopal (supra) under Ground (und (b). I uphold this ground.
Ground (d)
Was there therefore a case to answer? The learned Chief Magistrate correctly ded himself on the test at the end of the prosecution
case, ase, referring to Moidean -v- R [1976] 22 FLR 206. The test is whether on the evidence led, a reasonable tribunal could convict. In considering this question, the court must consider
whether the evidence was so unreliable that no reasonable court could convict upon it.
However having correctly referred to the test at the end of the prosecution case, the Chief Magistraen erred in applying it to the
facts of the case, and the lthe law on Unlawful Assembly.
There was no dispute that the Respondents were part of a group of three or more persons. The evidence of Ratu Inoke Takata was that
they were all all for a common purpose, to thank Speight’s supporters for supporting him. This is supported by the admissions of
some of the Respondents. Most of the Respondents admitted that they took part in the assembly, knowing that the group was linked
to Speight and the takeover at Parliament.
Of course the common purpose alleged by the prosecution was different. They alleged that the purpose of the gathering was to create
instability should the membership of the Interim Government not be satisfactory from the point of view of those assembled. No such
evidence was forthcoming in the course of the prosecution case.
However the prosecution did show that there was a common purpose and exactly what that purpose was, is not necessary for proof of
the offence as long as there was a common purpose. The failure to prove the common purpose alleged, should have led to amendment
of the charge under section 214 of the Criminal Procedure Code. That section provides:
“(1) Where, at any stage of the trial before the close of the case for the prosecution, it appears to the that the charge is defectifective,
either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment or by
the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case.”
The section states that it is the court’s duty to order amendment to meet the circumstances of the case, and that duty arises whether
or not an application for amendment is made by either prosecution or defence. In this case, no such amendment was ordered when it
became apparent that the common purpose was in fact to conduct Fijian ceremonies in relation to the takeover of Parliament. Now that
the prosecution case is closed, no such amendment can be made.
However, for the purpose of the offence, what the common purpose was, is not an essential element of the offence. It is enough that
there was a common purpose. From the evidence of the Qaranivalu, it is clear that there was a common purpose. Thus the reference
to causing instability in the charge is really superfluous to the charge. It does not render the charge defective, and has not led
to prejudice in the conduct of the defence.
As to the third ingredient, that some membershe group behaved in a way that caused the people in the neighbourhood to fear breaches
of t of the peace, as I have already said, there was ample evidence of that. Further the link with the group in Parliament and the
evidence of the large numbers of people gathered would cause any court to draw inferences of fear of breaches of the peace. There
was evidence that each Respondent participated in this large group of Speight-linked people. For the 4th Respondent who made no admissions,
an inference that he knowingly participated in the assembly, can be drawn from the circumstances of the case, including the evidence
that the group came from Parliament and had assembled in large numbers.
There was ample evidence on all elements of the offence which might lead a reasonable tribunal to convict each of the Respondents.
In upholding the defence submission that there was no case for the Respondents to answer, the Chief Magistrate was in error.
This ground is also upheld.
p class=MsoNormalormalormal style="margin-top: 1; margin-bottom: 1"> Conclusion
Grounds (b), (c) and (d) of the Petition of Appeal are successful finding of no case to answer is quashed and substituted with a finding
that there is a casa case to answer. This matter is remitted to the Chief Magistrate to continue with the trial and to put the Respondents
to their Defence.
Nazhat Shameem
JUDGE
At Suva
5th December 2001 Haa0061j.01s
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