State v Kaitani - summing up [2005] FJHC 495; HAC0044S.2004S (12 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Case HAC0044.2004S

THE STATE

V

SIMIONE KAITANI AND 3 OTHERS

Fiji High Court, Suva
12th August 2005
Gates J

SUMMING UP

Ms A. Prasad with Ms V. Lidise for the State
Mr I. Khan for Accused, 1, 2 and 3 [Kaitani, Tonitonivanua, Sausauwai]
Mr Rabo Matebalavu for Accused 4 [Lewaqai]

All 5 Assessors present

[1] Ladies and Gentlemen Assessors, it is now my duty to sum up the case to you. You may have heard before some of the directions that I am about to give you. But it is important that you bear them in mind when you come to consider your opinions in this case. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to give a decision on the facts applying those directions of law and to give me your opinions as to each of the Accused’s guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I shall not refer to all of the evidence, and as a result I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You must feel free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall weigh carefully and place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused which is enshrined in the Constitution. The State brings the charges against each of these Accused. Therefore on each of the charges it is for the State to prove its case against each Accused. Each element of the charges must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. The Accused do not have to prove anything. That is the basic rule. I shall come back to it to say how it will apply in this case.

[5] The prosecution must prove its case on each count beyond reasonable doubt. That means that before you express an opinion that the Accused are guilty of any of the charges you must be satisfied so that you are sure of the guilt of each beyond reasonable doubt. The test is not doubt, or slightest doubt. The test is reasonable doubt. If you consider any of them innocent of any of the charges you must give your opinion that he is not guilty on that charge. If you entertain a reasonable doubt of guilt, you must also give your opinion that that Accused is not guilty.

[6] The Accused are charged separately in the information with one count each of taking an engagement in the nature of an oath. As you deliberate on your opinions, consider each Accused and each charge separately. You are not obliged to find all of the Accused together not guilty or all guilty. You do not lop them all in together. So look at the evidence as it affects each of the Accused and each of the charges separately. Your opinions about the charges and the Accused could differ from one to the other, depending upon the view you took on each of the charges and the sufficiency or reliability of evidence available on each.

[7] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charges against each of the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[8] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[9] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the caution interview statements, the photographs, the plans, the oaths documents, and the immunity letter. In addition, you will consider the evidence that went in by consent of both parties, set out in two sets of agreed facts. Following correct procedure the State and the defence have agreed certain issues or facts. These are therefore not in dispute in this trial. All of this was done with the consent of defence counsel. Such agreements properly help to shorten the proceedings. Concentrate on the issues that are disputed.

[10] Neither speculation, personal knowledge, nor theories of one’s own constitute evidence. Media coverage, idle talk, or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers or seen or heard on radio and TV about this case. Focus solely on the evidence which you have seen, heard, or examined for yourself in this court. You all know there has been a good deal of media coverage both before and during these proceedings. Remember what I had advised you at the outset. Shut out from your minds all of that coverage and discussion. Bring an open mind to the evidence and to the arguments urged on you in counsel’s addresses. You are to approach your task with neutrality, without bias, and with true impartiality in accordance with your oath.

[11] This summing up is not evidence either, nor are counsel’s opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[12] You must decide this case upon the evidence presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which may not have.

[13] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence in support of that suggestion.

[14] The Accused elected to give unsworn statements from the dock. Such a statement is something which the law requires you to take into consideration together with the evidence. But it is not in itself evidence in the same sense as the statement of a witness given upon oath, for it has not been subject in any way to testing by cross-examination. You can attach to it such weight as you think fit, and you should take it into consideration in deciding whether the prosecution has made out its case on each of the charges beyond reasonable doubt.

[15] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together with all of the evidence in the case. You can accept part of a witness’s testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[16] If you have formed a moral opinion on the conduct alleged in this case, put that to one side also, and bear in mind a court of law is not a place for propaganda for or against political causes. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against each of the Accused has been proved before you, proved with evidence on the counts alleged in the information.

[17] As earlier mentioned, counsel for the State and counsel for the Accused have signed a document headed “Agreed Facts”. This procedure is provided for in our Criminal Procedure Code and it is a way in which issues or facts need not be proved unnecessarily before you. You will have copies of it. It deals with background facts setting the scene before the swearing-in ceremony. It informs you that Simione Kaitaini and Levani Tonitonivanua were both members of Parliament at the time. It also tells you that there is no dispute that documents in the Agreed Bundle of Documents contained the signatures of the Accused persons. These were the documents examined by Mr Boot the handwriting expert, when comparing them with the signatures on the disputed documents, the oath documents.

[18] What does the prosecution have to prove? First it must be proved that each of the Accused took an engagement in the nature of an oath. In short form, this means that each took their respective ministerial oaths of office intending to do so. The reasons for doing so are immaterial and irrelevant, and it matters not whether the oaths were in fact proper oaths in law.

[19] Second, it must be proved that the oath taken was one which purported to bind the Accused. The oath was taken to bind each of the Accused as a Minister in George Speight’s Taukei Civilian Government which was usurping power from the lawfully elected Government of the day. By its words and circumstances therefore, you would easily conclude the oath purported to bind each of the Accused to serve the unlawful Government.

[20] Third, it must be proved that the oath was taken to commit an offence which, as at 20^th May 2000, was punishable by death. That offence was treason. As a matter of law I must tell you that the mandatory or fixed penalty at that time for treason was indeed death. It is not necessary for the State to prove that the Accused intended to commit treason. Each Accused would still be guilty after taking the oath even if he intended not to take any steps to carry out the acts described in the oath. But it must be shown that the acts in the oath amount to treasonous acts.

[21] It is an agreed fact that George Speight and his group took over the Parliament of Fiji and incarcerated members of the legitimately elected Government. It is also an agreed fact that Ratu Sir Kamisese Mara was the legitimate President on 20^th May 2000 who exercised executive control. Therefore to swear an oath, not before Ratu Mara the lawfully appointed President, but before an interim President, binding each Accused to serve an illegal Government, after the lawful and democratically elected Government had been removed in an armed takeover, would mean the oath had been taken to commit treason.

[22] Treason has been said to be any act or acts done for some public or general cause to authorize or to remove the established Government, unlawfully and by force. Treason includes any act of forcible resistance to the authority of the Government of the day in some public way. Examples of such conduct would be the taking over of Parliament, the seizing of Cabinet Ministers as hostages, and the use of force to prevent the Government or Head of State from exercising lawful powers. All such acts amount to treason. Again if you reach a conclusion that these oaths were taken in the circumstances I have just related then you would have no difficulty in concluding that the oaths were taken to commit treason, an offence punishable then by death.

[23] Fourth, it must be proved that each Accused had not been compelled to take the oath. The overall burden of proof in the case lies with the State. If it had been suggested by any of the Accused that they had been subject to duress and to threats of death or grievous bodily harm so that they were forced to swear the oath, then such duress would be a matter for each Accused to prove on a balance of probabilities. This is not a defence raised by any of the Accused who each strongly maintain that they never took the oath. If you accept that they had taken the oaths in a ceremony before Ratu Jope, you would conclude from the surrounding circumstances that they had done so voluntarily and willingly, and thus that they had not been compelled to do so.

[24] Fifthly, it must be established that the persons who took the oaths alleged were indeed the Accused. In other words the identity of the Accused in each count who committed the crime must be proved to you beyond reasonable doubt.

[25] In many ways this is not a straightforward or a simple case. It requires on your part a good deal of concentration and effort in order to scrutinize the evidence and in order to arrive at a right opinion. I know you have paid close attention to the arguments and submissions of counsel on the reliability, quality and soundness of evidence as they see it.

[26] I turn now to the evidence. The State presented three types of evidence. There was the handwriting evidence, the evidence of the Accused being seen in the vicinity of the Prime Minister’s private office, and the evidence of their admissions to the police interviewers. Bear in mind also the statements of each of the 4 Accused made from the dock on the issues they addressed.

[27] You have been assisted on the authorship of signatures on the oath documents by a handwriting expert, Mr David Boot. Counsel on both sides have universally asked you to rely on his evidence. Though you have had the assistance of a handwriting expert, I must caution you against relying on your own eye or on making your own comparison of the disputed signatures with the accepted documents.

[28] According to Senator Mitieli Bulanauca he went into the PM’s private office and took the oath of ministerial office. This was on the afternoon of 20^th May 2000. He stood before Ratu Jope Seniloli and was sworn in holding the Holy Bible. Afterwards he signed the oath document. The title of the document was: “oath for the execution of office of the Minister for ...” and then the particular ministry was listed. Then he left the room, and was congratulated by those outside who shook hands with him.

[29] The State says that if the Accused’s signature was on the oaths document, this fact taken with the evidence of the close proximity of the Accused to the PM’s private office that afternoon and of their entering into that office, leads to an inevitable inference that they must have signed the oaths documents whilst inside that office. The second inference to be drawn is that if they signed the oaths document before Ratu Seniloli, then they must have sworn the oath before him at the same time.

[30] Mr Boot told us how he went about his work. He said expert opinions or conclusions were expressed on a sliding scale. At one end an opinion could be reached of a positive identification of authorship. At the other it could be said positively that the authors of two pieces of writing were not the same. If in the middle of the scale, then he would render an opinion as being inconclusive with reasons given.

[31] From the middle, back to the two ends of the scale, an opinion would be rendered either for or against the same hand having written the disputed writing. In the cases of Accused 1, 3 and 4, an identification of authorship, though possible, was subject to limitation as he called it, in that a definitive opinion was not possible. There was however evidence pointing towards the limited opinion reached.

[32] After his examination Mr Boot said he found a number of similarities in the writings of all 4 persons. He spoke of certain limitations also. In answer to questions put by Mr Khan in cross-examination, Mr Boot said he had reached positive identifications of three other signatures of persons not involved in this trial on similar documents. He said he had no doubt in his mind of the authorship of those questioned signatures. Whereas with Viliame Sausauwai, Eroni Lewaqai and Simione Kaitani he could not say beyond reasonable doubt that they were the authors of the signatures on the respective oaths documents. He referred again to the limitations, and said he was not certain to the same extent in any of their cases.

[33] In the case of Accused 2, Levani Tonitonivanua, he found dissimilarities of style. He said the signatures and accepted material were not comparable. He could not give an opinion as to the likelihood or not that Accused 2 had signed the oath document. His examination was inconclusive. Mr Boot cannot assist you in Accused 2’s case. In view of his observation on the difficulty of identification of the signature, you yourselves should not try to improve on Mr Boot’s opinion. On the issue as to whether Accused 2 took the oath, you must accept that the handwriting evidence is neutral and cannot assist in proving that issue for the State. But the absence of proof you could regard as assisting the case for Accused 2.

[34] The fact that the handwriting expert could not be sure beyond reasonable doubt on the authorship of the signatures being attributed to Accused 1, 3 and 4, means that that evidence alone could not prove that these Accused wrote those signatures. If the handwriting evidence had been the only evidence identifying the Accused in this matter your task would be simple. You would simply render opinions of not guilty. But your task is more difficult. You must first look at Mr Boot’s evidence in detail to weigh its strengths and weaknesses and then consider it along with the other evidence in the case. Taken all together, does it gain support from the other evidence so as to override the limitations that Mr Boot told you he had to place on his final opinion?

[35] In Simione Kaitani’s case, Mr Boot found similarity between the accepted writings and the questioned signature. He gave as his reasons, the smallness of the writing, the size relationships, pressure habits, style, and baseline. One of the reasons for limiting his opinion Mr Boot said was because the signature was small and not very complex in construction. He thought someone else could have copied it, but such an occurrence he considered “very unlikely but just possible.”

[36] In Viliame Sausauwai [Accused 3]’s case Mr Boot said there was again a strong similarity between the signatures and the names. The disputed signature was more complex in its construction. It had been written speedily and fluently. Mr Boot found no evidence of features commonly associated with copying or disguise. His reasons for indicating that the signature was to be attributed to Accused 3, were the individual construction habits, size, size relationships, and fluency. However he found a variation in the disputed signature in that there was a break after the “V”, not seen in the specimens. That appeared to be the only variation which caused Mr Boot to conclude that there were indications that the author of the specimen attributed to Viliame Sausauwai completed the signature on the oath in the same name.

[37] Mr Boot said that in Eroni Lewaqai’s case again there was a strong similarity between the signatures on the questioned document and the specimens. He indicated size relationships, baseline habits, and individual construction characteristics. The limitation he imposed on his opinion was because the signature was a very disconnected signature, made up of 5 or 6 strokes. Because of this, it would be a little easier to copy. However Mr Boot said he found no evidence of any features associated with copying or disguise, and no evidence to indicate any more than one person had been responsible. Another reason for his caution was that the signature had been written with a roll-ball or fibre tip pen which made it more difficult to determine the fluency. Mr Boot concluded by saying “So while I found no difference whatsoever between the signatures, I did limit my opinion based on those limiting factors and my conclusion was that there are indications to the author of the specimens attributed to Lewaqai, (that he) signed the oath in that same name.”

[38] I turn now to the evidence relating to the presence of the Accused in and in the vicinity of the Prime Minister’s private office. The relevant witnesses you may think were Mitieli Bulanauca, Filipe Baba, Jonasa Vueti and Sainimili Cavuilati.

[39] It is important to bear in mind that the Accused are charged with taking an engagement in the nature of an oath to commit a capital offence. They are not charged with treason. Many things were going on around the time of 19^th and 20^th May 2000. Taking part in non-violent lawful marches, or being in Parliament at the time, or even being a spectator at a swearing-in ceremony are not offences as such. Mr Khan has rightly pointed out to you that mere presence at the scene of a crime is not in itself a crime. Active participation or encouragement and an intent to commit a criminal offence would be necessary. The Accused are not charged with encouraging or aiding and abetting a crime. They are charged with taking an engagement in the nature of an oath to commit a capital offence.

[40] With the exception of Sausauwai, none of the Accused were directly observed taking the oath before Ratu Seniloli. The evidence of the oath taking is all indirect. Kaitani, Tonitonivanua and Sausauwai were captured on the TV camera by Trevor Whippy at the morning swearing-in ceremony on 20^th May 2000. Their presence at that ceremony does not point incontrovertibly to their having sworn their own oaths later in the day in the afternoon ceremony, which is the charge against them. It must be remembered, the two ceremonies were held in different rooms, albeit in the same block in the Parliamentary complex.

[41] Accused 1 in his unsworn statement said when the coup occurred he was caught up in the events. He was an M.P. and a trainer in conflict management. In his professional capacity he considered he could not just leave the Parliamentary complex. He had a role to play. It had been suggested to Mr Whippy that Mr Kaitani was just a spectator. Accused 1 denied vehemently that he took the oath. But he did not go into the details and deal with whether he went into the PM’s private office in the afternoon, as the witness Senator Bulanauca had claimed.

[42] The evidence from some of the witnesses including Senator Bulanauca as to earlier meetings prior to the afternoon of 20^th May 2000 will not assist you much. There was no evidence that any of these Accused were offered or accepted ministerial office in the unlawful government at those meetings or that they contributed to the discussions which might have illustrated their intentions.

[43] Before the morning swearing-in, Senator Bulanauca was told he was going to be made Assistant Minister for Education. He was told this by Jo Nata. He said he saw all 4 Accused moving around the offices upstairs waiting for the swearing-in of cabinet members. Kaitani, Sausauwai and Tonitonivanua were present at the morning swearing-in in the conference room.

[44] He said an announcement was made that the others who were yet to be sworn in would be sworn later in the day. There was then a break in the proceedings. From the TV footage you could see that the people in the room appeared to comprise officials, ministers to be sworn, press and perhaps a few spectators.

[45] Mr Bulanauca said he had lunch with the same three Accused. Then they stayed around the offices until they were called in for the swearing-in. He himself was called in to the PM’s office by Jo Nata. He thought it was at about 1 pm. But before he went in, Simione Kaitani was called in. Mr Bulanauca said Kaitani was inside about 2-3 minutes or so. He had gone in with Jo Nata. After Kaitani came out, they met at the door and, said Mr Bulanauca, they shook hands.

[46] According to Mr Bulanauca, the only other persons inside the room were Ratu Seniloli and Jo Nata. The afternoon ceremony was being conducted apparently without press or spectators present in the room. Mr Bulanauca told us how the ceremony was conducted, how he read out the oath, holding the Holy Bible in his right hand. Then he signed the oath document. He shook hands with Ratu Seniloli, the Interim President, and then came out to the waiting area via the same door as he entered. On re-emerging he shook hands with everyone outside.

[47] He stayed around whilst others were called in to be sworn. He listed, along with some other names, Accused 2, 3 and 4 as being amongst those who went in. He shook hands with them all to congratulate them after they had been sworn in and for their portfolios. He left Parliament about 3.30 pm.

[48] None of the Accused in their unsworn statements made detailed challenge to what Senator Bulanauca had said. But all denied the charge and the taking of the oath. He was cross-examined by Mr Khan for Accused 1, 2 and 3. Mr Khan questioned him about a second statement made by this witness to the police. It was suggested in his first statement he had not mentioned anyone else involved in the taking up of ministerial office apart from himself. In his second statement he had not mentioned Accused 2 and 3. Mr Bulanauca said it was just a brief interview. He thought he was going to be tried he said. He was not given immunity from prosecution by the Director of Public Prosecutions till 25^th May 2005. He denied that he was told if he gave evidence against the four Accused he would not be charged.

[49] Mr Bulanauca said he gave a further statement in 2004 because the Director of Public Prosecutions needed more details. He said he thought it concerned whether he would be tried or not. Mr Khan also questioned him about the letter of immunity. You should read the letter when you retire. Besides requiring Mr Bulanauca to co-operate and to give evidence for the State in this trial, the Director granted immunity “if your evidence there, is the truth, the whole truth, and nothing but the truth.” Immunity is only granted if the evidence given is the truth. Immunity is not granted simply in exchange for evidence adverse to the Accused. Such an immunity if it were granted would not serve the interests of justice.

[50] In approaching Mr Bulanauca’s evidence you need to decide first whether you believe he has come to court to tell you the truth about this matter. If you consider he has not done that, you should disregard his evidence.

[51] You should approach his evidence with caution on the basis that he could have had an interest of his own to serve. Look at his evidence with care. See if there is any confirmation of what he has said in other evidence which implicates the Accused in the commission of these offences. There is no evidence of such direct implication. There is confirmatory evidence from the TV footage of what he said about the morning ceremony and the presence of Accused 1, 2 and 3. There is confirmatory evidence from Accused 1 that he shook hands with Mr Bulanauca in the afternoon near the PM’s office. But Accused 1 said it was just a Love of God gesture, not a mark of congratulations. He says Accused 1, 2 and 3 went into the PM’s office that afternoon. This was not specifically denied in the unsworn statements.

[52] When considering Mr Bulanauca’s role in the proceedings you can consider his evidence as to why he resigned on the following Monday. His evidence is not of seeing the Accused take the oaths but only of their going into the same room. He sets the circumstances which were similar to his own. Was there any attempt by Mr Bulanauca to reduce his own culpability in the matter? Has he embroidered everything here to please the prosecution? Or has he simply told a small part of the story that he knew?

[53] Filipe Baba was a taxi driver who said he visited the Nationalist Party office in the Parliamentary complex on 20^th May 2000. He met Jonasa Vueti who worked at that office. There were serious conflicts in their evidence. First you should consider as I have already mentioned whether these two witnesses were attempting to tell you the truth. If not, you should disregard their evidence.

[54] However the events they were describing occurred over 5 years ago and many things were going on such that the order in which things happened may have been muddled in their minds. Having said that, if an honest witness is trying to recall events yet is too muddled, you cannot rely on such evidence and must reject it as being inaccurate.

[55] He says he went up to the second floor to witness a swearing-in ceremony. He said it was happening in the Prime Minister’s office. Ratu Jope Seniloli and Jo Nata he said were calling out names. He did not remember or know all of the names at first. He remembered Accused 1, 3 and 4 being in the room, that is the room where the swearing-in took place. This was in conflict with Senator Bulanauca’s evidence which made clear the afternoon ceremony was carried out in the PM’s private office without spectators.

[56] He saw some people being sworn in, and the way in which the ceremony was being conducted. He said he heard Accused 3’s name being called. Accused 3 went up to Ratu Jope and the witness described the ceremony with Accused 3 holding the bible. He said he was in the same room as Sausauwai and Nata. A lot of people were in the room and he stayed 10-15 minutes. He shook hands with those who had been sworn in. He said he could see inside the room where it was happening from where he was standing. Since he says there were so many people in the room, was he referring to the morning ceremony where there appeared to be more people, spectators, and the Press present. If that were so, how reliable were his observations of Accused 3’s swearing-in?

[57] At the end of the day he can be relied on to place all of the Accused near the scene of the swearing in. But beyond that it would not, you may think, be safe to rely on his evidence.

[58] Jonasa Vueti was at Parliament he said to help with the cooking. He said he went with Filipe Baba on 20^th May 2000 to the second floor in the block near to the Parliament. He was in Parliament then to help with the cooking. Later in his evidence he said he sat on the ground outside and did not go up to where the swearing-in took place. He saw all 4 Accused at that building. Filipe Baba had stayed with him all the time, and did not go upstairs, he said.

[59] If this witness is truthful his evidence seriously conflicts with that of Filipe Baba. It suggests Baba could not have seen what he said he saw upstairs. His own evidence is of the presence of the Accused walking around the same building between 10-11 am where the swearing-in ceremony took place. That is not proximate enough to be probative. It is of little assistance to the State. This witness was of little value you may think.

[60] Sainimili Cavuilati was called next. She was a police officer who had been in Special Branch in May 2000. She had entered Parliament on the 19^th May 2000. It was not quite clear what her role was, but she said she entered Parliament in relation to her duties. She did photocopying she said for Jo Nata, and faxed copies to her own police office. She agreed that she had to hide her identity but yet she said Ratu Rakuita Vakalalabure knew who she was. Ratu Rakuita was the Attorney-General in the illegal Government.

[61] She told of how the swearing-in ceremony in the morning was interrupted and a break was taken. She left the complex for lunch. Upon her return she went upstairs and there were people sitting outside the PM’s office in the lounge area. As she entered she met Accused 4. He had come out of one of the offices and told her that he had just been sworn in as Assistant Minister for Urban Development.

[62] She said he was looking for a place to stay because he had just been sworn in. She did not say anything to him. She then walked out of the office. It was suggested to her in cross-examination that she did not see Accused 4 or hear him say he had just been sworn in. She maintained her stance on both points. This was evidence of an unequivocal admission by Accused 4. However you will need to evaluate it.

[63] Ms Cavuilati did not appear to be comfortable giving her evidence. She gave no evidence against Accused 1, 2 and 3. It may be the second ceremony was all over when she got back to the upstairs office after lunch. It was put to her in strong terms she had not met Eroni Lewaqai that day. She maintained she had. Why did Accused 4 speak to her? Why should he tell her about his swearing-in? What was this about wanting a place to stay? Why did she say she did not say anything to him in reply? You will have to evaluate her evidence along with the unsworn statement of Accused 4 denying that he ever said such a thing to her and denying that he spoke to her.

[64] If you accept Ms Cavuilati’s evidence that would be direct evidence of Accused 4’s taking of the oath. All of the other evidence of the presence of the Accused in or near the PM’s private office is what we call circumstantial evidence. Circumstantial evidence consists of a series of circumstances which point to the inference or conclusion of guilt. If I arrive home to find my cat with cream on its whiskers sitting next to an overturned cream jug on the kitchen table it could be said the circumstances lead me reasonably to conclude that the cat overturned the jug and drank the cream. If there were two cats on the table and neither cat had cream on its whiskers then either cat could fairly claim that the circumstances did not point inescapably, necessarily, and reasonably to the guilt of either in the matter of the upturned jug and the missing cream. If there was an innocent explanation for the set of circumstances, then the inference of guilt reasonably cannot be drawn. The evidence must be consistent with the Accused’s guilt and inconsistent with every other rational conclusion.

[65] If you accept the evidence of Senator Bulanauca that these 4 Accused went inside the PM’s private office separately in the afternoon of 20^th May 2000, and you accept that individual swearings-in were being conducted for the remaining ministers not sworn in at the morning session, you could infer that the circumstances lead you to conclude that these Accused went into the room to be sworn in, and were also sworn in, in the same manner as Senator Bulanauca had been sworn. You must first be certain that they did enter the PM’s private office.

[66] As I have said, none of the Accused specifically dealt in their unsworn statements with whether, if not sworn, they still went into the PM’s office. There is only Senator Bulanauca’s evidence on the issue. If you reject his evidence, this part of the case is to be disregarded and you should go on to assess the handwriting and confessional evidence. If you accept Mr Bulanauca’s account of their separate entries into that room, you will have to consider what they did there, before Ratu Seniloli and Jo Nata, if it were not to take part in their own swearing-in ceremony.

[67] Without dealing with the visit to the PM’s private office Accused 1 did deal with the suggestion that on coming out from it he had been congratulated by everyone. He said he was merely extending a Love of God gesture. Accused 1 accepted that he had shaken hands with everyone but said it was done for another reason. This account seemed to accept Senator Bulanauca’s evidence but provide another explanation for it. Ms Prasad for the State questioned why would it be necessary to shake hands with Mr Kaitani and the other Accused when you had been with them all morning.

[68] More than one Accused has suggested that the prosecution should have called Ratu Seniloli and Mr Jo Nata to give evidence. These two persons were not called and we have no formal explanation. The reasons you may think would not be hard to work out. There is no property in a witness and either side could have called these witnesses. We do not know what their evidence would have been and you should not speculate. You have to decide the case on the evidence presented to you and confine yourselves to that, as well as considering the unsworn statements from the dock.

[69] The next tranche of evidence you must consider is the police interviews of each Accused. The State says each Accused with the exception of Kaitani made full and frank admissions of taking the oath before Ratu Seniloli. Kaitani denied taking the oath but appeared to accept the signature on the oaths document as being his.

[70] As for the contents of the interviews and the record of what had been said, Kaitani had no dispute. Tonitonivanua agreed he had said what was recorded but said it was not the truth. Sausauwai said he felt under pressure, but did not claim the record was incorrect, merely that what he said was not the truth. Lewaqai has not disputed the account of what he said, but says he was denied his right to consult a lawyer and therefore his interview was unfair.

[71] I will now go through them one by one. DC Jemesa interviewed Mr Kaitani at Lautoka Police Station on 29^th April 2001. He portrayed a fluid if not chaotic situation at the Parliament around 20^th May 2000. First he was to be Minister of Youth, then Health, and then Primary Industries and Marine Resources. He said he appointed himself Minister for Information as a way of doing damage control because of what he thought was inappropriate presentation by the then Minister.

[72] He said there was a shortage of forms for the oath so some of them waiting to be sworn in, missed out. He said they were given forms later to sign. He insisted that when the person who was to have been appointed Minister for Primary Industries failed to appear that portfolio was dumped on him. He never took the oath of allegiance he said.

[73] He was shown the oath document with his name handwritten over the name of the absent person with a signature where the newly sworn minister was to sign, and he said it looked like his signature but he did not remember signing.

[74] In the second interview of 24^th June 2003, the one where he was allowed to go away and get another solicitor, he said he did not remember being a part of George Speight’s proposed Government. He also denied being given any ministerial post.

[75] When it was put to him that he had been sworn in as Minister for Primary Industries and Marine Resources, he said he was not sworn in holding the bible or before Ratu Seniloli. He told Nata he would not accept the piece of paper with his name written in pen near the crossed name. He said he could not remember if he had signed it. He seemed to remember a little more when the interviewing officer showed him the oaths document.

[76] He seemed reluctant to deal with his role in the matter. The defence have suggested to you that he was harassed and pestered into saying things he did not mean to say. He admitted being inside a room where the second ceremony was taking place. This confirms what Senator Bulanauca said in regard to Kaitani. He was asked why he signed. He did not maintain he had not signed. He answered that he had been given the impression it was legal because the Army was behind what was going on. He thought it was legal.

[77] Was he tricked and trapped into these answers? Or did he gradually admit his involvement after being shown the oaths document? The defence say he admitted it, but that he was mistaken since the signature was not indeed his. He pointed to Mr Boot’s evidence where he had said that he could not be certain beyond reasonable doubt. I have already dealt with the significance of Mr Boot’s identification. On its own it is insufficient proof. But an admission of signing by an Accused could complete that identification linking the signature with himself as author. Mr Kaitani’s statement in court from the dock was that he did not sign and he did not take the oath.

[78] If as Kaitani says he assumed the position of Minister of Information for the Speight Civilian Government, was his role a minor one on the sidelines? If he went into the PM’s office during the ceremony did he sign the oath document and insist on not taking the oath? How would Ratu Seniloli and Jo Nata have reacted to that? Would that have been likely? You must read through Accused 1’s interview statements carefully and decide first if he was truly admitting to signing the oath document. If you do so conclude, and you accept the consistency between what Senator Bulanauca said and what Mr Kaitani said about him going into the PM’s office, you can then decide whether or not the only reasonable inference to be drawn is that he was sworn in.

[79] Tonitonivanua Accused 2 said from the dock he was denying everything, and he did not sign the oath of allegiance. He said he and his family had been harassed by the army and the police. He gave few details but he said it happened between April-May 2001. He was first interviewed at Nabua on 17^th April 2001 when he came to the station on his own. He was not arrested.

[80] Because he and his family had been searched and put out of his house in the cold, he said 3 times, he told the police to write what they wanted to write. He said he went along with whatever they asked him. “I admitted to everything that was alleged” he said. He said he was an MP that was why he was in Parliament. He did not go there to support what was happening.

[81] Remember in Accused 2’s case I had told you that the handwriting evidence of Mr Boot could not support the State’s case. He was seen prominently in the TV footage at the morning swearing-in ceremony, and Senator Bulanauca said he was one of those who went inside the PM’s office where the afternoon ceremony was being conducted.

[82] Read the interviews of Accused 2 carefully to see if there is support for his contention. Mr Khan has said this is a case where though admissions were made, they were not truthful. It is for the prosecution to prove beyond reasonable doubt that the answers were truthful.

[83] Look at the answers to see if they seem fabricated. Was the information being put into his mouth or was it being supplied by Accused 2? The allegation of fabrication was not put to the interviewing officer. There did not appear to be any pressure on him since he was allowed to break off the first interview and take his wife to hospital. The interview resumed 2 days later. He could have brought a lawyer along if he had wanted to. There were full and frank admissions of taking the oath in the first interview.

[84] In the second interview on 2^nd July 2003 Accused 2 admitted it was his signature on the oaths document. If you accept he meant to say that, and that it was the truth, though the handwriting expert could not reach a worthwhile opinion on authorship of the same signature for the reasons he gave, you can conclude that Accused 2 had indeed signed the oaths document.

[85] Accused 2 said he knew he had been appointed Assistant Minister for Forestry because he read it in the paper. He read it at home on the Sunday. It is not clear what he meant here. Accused 2 may have read of events the day before in the Sunday papers. He tells you that this shows he was not sworn in on the Saturday, and this was his explanation. Ms Prasad suggests to you that there was some confusion in his mind. It is for you to decide whether the prosecution have proved beyond reasonable doubt that Accused 2 was indeed sworn in on the afternoon of 20^th May 2000.

[86] Accused 3 Sausauwai in his dock statement denied taking the oath or signing the oath document. He said he agreed to everything the police officer asked. But it was not true he said. He was under extreme pressure. In his first interview on 2^nd August 2000 he said he had been an MP once for a month. He made detailed and frank admissions of being sworn in as Assistant Minister of Health on 20^th May 2000.

[87] He was quite precise about the circumstances of his swearing in. In his second interview on 9^th June 2003 he said it took place in the PM’s office at about 1.30 pm, and he took the “oath before the President Ratu Jope Seniloli.” He accepted it was his signature on the oath document. Again if you accept his answers as being truthful, they support the handwriting expert’s opinion. These admissions support Senator Bulanauca’s evidence also that he saw Accused 3 go into the PM’s office.

[88] Accused 4 Eroni Lewaqai in his dock statement denied taking the oath and signing the oath. He went to Sabeto Police Station on 16^th June 2003. He maintained that the interviewing officer Cpl Mesake had left him and gone into the police station to make a call. He returned saying Mr Rabo could not be contacted in his office. Accused 4 said that he asked the officer therefore if he could have the interview in Suva. He said the officer brushed him off with an excuse, and said that the interview was nothing serious.

[89] You should read the interview record carefully in this regard. Cpl Mesake said, had Accused 4 asked to defer the interview to obtain his solicitor he would have allowed the deferment to Suva. But Accused 4 did not ask for that. Cpl Mesake said the phone was in the police bure where they were, and he made the calls in Accused 4’s presence. It was suggested the phone was in the main station. If the purpose of the phone call was to allow the Accused to consult his solicitor the Accused would have to be next to the phone at the time. Was it likely that the officer went into the station on his own to call Mr Rabo? Would they not have been together to achieve the purpose of the call?

[90] If you do not believe Cpl Mesake on this issue and you believe a trick was played on Accused 4, you should disregard the evidence of this interview and take no account of it. If you believe that an attempt was made to contact Mr Rabo as requested, but that it failed, and that then Accused 4 decided to go on without him, you can go on to consider the truthfulness of Accused 4’s answers. His answers were short, simple and frank. He admitted taking the oath and signing the oath document. If so, those admissions support Mr Boot’s evidence also, and may lend some support to Ms Cavuilati’s evidence of his admissions to her.

[91] You may consider when deciding who to believe in this case, who might have forged those signatures and why. Why would someone wish to forge signatures on these oaths documents? The documents were found when a search warrant was executed on the law office of Ratu Rakuita Vakalalabure, the Speight Government Attorney-General. He had kept them in his office.

[92] At a time of great flux in the nation’s affairs who would conceive and execute such an accomplished forgery? It was clear from Mr Boot’s evidence that there was little evidence of copying or disguise in the signatures, and he considered copying would be extremely difficult. There are a great number of matters for you to ponder over.

Please now retire to consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for Accused 1, 2 and : Messrs Iqbal Khan & Associates, Lautoka.
3 [Kaitani, Tonitonivanua, Sausauwai]

Solicitors for Accused 4 [Lewaqai]: Messrs Esesimarm & Co., Nadi.