State v Takiveikata - Ruling [2011] FJHC 129; HAC005.2004 (28 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC005 of 2004

STATE

V

RATU INOKE TAKIVEIKATA

Hearing: 25 February 2011
Ruling: 28 February 2011

Counsel: Mr. P. Bulamainaivalu and Mr. P. Katia for State
Mr. V. Vosarogo for Accused

RULING

[1] The defence applies for a no case to answer.

[2] A no case to answer application is governed by section 231. Section 231 states:

(1) When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence. (underlining mine)

[3] The phrase "no evidence" has been interpreted to mean that there is no evidence on an essential element of the charged offence (Sisa Kalisoqo v State Criminal Appeal No. 52 of 1984). If there is some evidence on the essential elements of the charged offence, the application for a no case to answer cannot succeed. The credibility, reliability and weight are matters for the assessors and not for the trial judge to consider at a no case to answer stage.

[4] The charge reads:

Statement of Offence

INCITING TO MUTINY: Contrary to section 55(b) of the Penal Code, Cap 17.

Particulars of Offence

RATU INOKE TAKIVEIKATA, between the 16th day of August 2000 and 24th day of September 2000 at Suva advisedly attempted to incite Captain Shane Stevens and Sergeant Manoa Bonafasio knowing that they were serving in the Fiji Military Forces, to commit the mutinous act of joining in combination with other members of the Fiji Military Forces to execute a takeover of the Queen Elizabeth Barracks in Suva.

[5] Mr. Vosarogo's submissions were brief. Counsel submits that there is no evidence that Stevens and Bonafasio were incited as alleged in the charge. Stevens did not come up to proof and he only implicates Turagacati. Bonafasio's evidence is that he received orders from Stevens when an attempt was made to takeover the military barracks on 2 November 2000. Therefore, counsel submits that there is no evidence that Stevens and Bonafasio were incited by the Accused to commit the mutinous act of taking over the military barracks.

[6] Mr. Bulamainaivalu submits that the fact Stevens had not come to proof is not fatal to the prosecution's case. The State relies on the evidence of Turagacati to prove the charge. Turagacati is an accomplice to the charge and his credibility is a matter for the assessors to assess after appropriate accomplice directions are given to them.

[7] It is not in dispute that Stevens and Bonafasio were military officers at the time of the alleged offence. Nor is it in dispute that these two officers were involved in an attempted mutiny at the militray barracks on 2 November 2000. The real issue is whether there is some evidence that the Accused urged, or encouraged, or advised, or proposed removal of the Commander by taking over of the military barracks and that the Accused did so with the intention that the proposed mutinous act be committed. Thus the words spoken by the Accused in meetings in which Stevens and Bonafasio were present are relevant. The prosecution does not have to prove the exact words of conversation. The meaning and effect of the conversations is important.

[8] Without going in detail the evidence led by the prosecution in support of the charge, I am satisfied that there is some evidence of spoken words by the Accused in meetings attended by Stevens and Bonafasio to prove that the Accused knowingly urged, or encouraged, or advised, or proposed Stevens and Bonafasio to takeover the military barracks in order to remove the Commander.

[9] I find the accused has a case to answer and he is therefore put to his defence.

Daniel Goundar
JUDGE

At Suva
28 February 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Mamlakah Lawyers for Accused