Karunaratne v State [2018] FJHC 786; HAA25.2018 (24 August 2018)

IN THE HIGH COURT OF FIJIAT SUVA

In the matter of an appeal under section 246(1) of the Criminal Procedure Act 2009.

JAGATH KARUNARATNE

MOSESE BULITAVU

Appellants

Vs.

STATE

Respondent

Counsel : Mr. F. Vosarogo for 1^st Appellant
Ms. B. Malimali for 2^nd Appellant

Mr. Y. Prasad for Respondent
Hearing on : 20 July 2018

Judgment on : 24 August 2018

CASE NO: HAA. 25 of 2018 & HAA 27 of 2018
[MC Suva, Crim. Case No. 1618 of 2011]

JUDGMENT

1. The appellants were jointly charged before the Magistrate Court with one count of sedition contrary to section 67(1) of the Crimes Act. The charge reads as follows;
   

Statement of Offence

SEDITION: contrary to section 67(1)(a)and section 66(1)(i) of the Crimes Act No. 44 of 2009.

Particulars of Offence

JAGATH KARUNARATNE and MOSESE BULITAVU together with others between the 1^st of August 2011 and the 27^th of August 2011 did an act namely the spray painting of words in different places between Nausori and Suva with the seditious intention of bringing into hatred or contempt or to excite disaffection against the Government as by law established.

2. After trial, the Learned Magistrate found each appellant guilty of the above charge and they were convicted on 26/03/18. Each appellant was then sentenced on 30/04/18 to terms of 2 years and 6 months imprisonment and the time each appellant had spent in remand had been deducted. The non-parole period for each appellant was fixed at 18 months.
   
3. Being aggrieved by their convictions and the sentences, both appellants have filed timely appeals. With the concurrence of parties the two appeals were consolidated.
   
4. The above named first appellant who stood before the Magistrate Court as the first accused had submitted the following grounds of appeal;
   1. That the learned trial magistrate erred in law and fact when she failed to properly evaluate the whole scheme of evidence according to the particularized preference of the charge and subsequently failing to consider the absence of evidence of the appellant involved in the actus reus of the offence, the failure of which led to a judgment that was unsafe and unsatisfactory and amounts to a miscarriage of justice.
   2. That the learned trial magistrate erred in law when he failed to properly address the evidence applicable to each element of each of the count distinctly and separately as required by law, in light of the prosecution case not being run on a joint enterprise, the failure of which resulted in a judgment which was perverse an amounts to a miscarriage of justice.
   3. That the learned trial magistrate erred in law when she failed to identify the evidence that satisfied the element of bringing into hatred or contempt or to excite disaffection against the Government as by law established, the failure of which resulted in a judgment passed in consequence of an error of law and is therefore perverse and unsafe.
   4. That the learned trial magistrate erred in law when found the appellant guilty as charged when in the same judgment, found that the seditious intent necessary to accompany the actus reus of the offence occurred after the time-frame identified in the charge as the particularized time of offending and such finding is perverse resulting in a judgment that is unsafe and unsound.
   5. That the learned trial magistrate erred in law when she failed to explain the finding of the appellant’s guilt in light of the appellant’s inability to understand the language and discussions of the purported accomplices and the accomplices denial in evidence of the appellant’s involvement and knowledge and such failure resulted in a miscarry and unsafe judgment.
   6. That the learned trial magistrate erred in fact and law in not properly addressing the evidence of the accomplices and the requirement of warning which is absent in the judgment and such absence resulted in an unsafe judgment.
   7. That the sentence passed against the appellant is disproportionate in all the circumstances of the case and failed to properly consider relevant issues and took into account irrelevant matters resulting in a sentence which is manifestly excessive.
      
5. The second appellant assails his conviction and sentence on the following grounds;
   1. That the magistrate erred in law when she failed to apply the Waqabaca elements of the offence of sedition to this case (Page 18 of judgment).
   2. That the magistrate erred in law when she failed to identify the elements of the offence of Sedition as it applied in this case. For Mr. Karunaratne it appears that she used the 9 elements whereas for Mr. Bulitavu, she used 2 elements.
   3. That the magistrate erred in law when she failed to consider that the Government of Fiji as established by law in August 2011 was as per Executive Authority of Fiji Decree 2009 (Decree No.2).
   4. That the magistrate erred in law and fact when she failed to consider that the Government of Fiji as established by law in August 2011 as per Executive Authority of Fiji Decree 2009 (Decree No. 2) was that the President of Fiji was the Head of Government and the Head of State.
   5. That the magistrate erred in law when she failed to address the legal principle of Aiding and Abetting the Principal Offenders in the case before her, as that was the case put forward by the State in their Opening Statement.
   6. That the magistrate erred in law when she failed to address the Aiding and Abetting the Principal Offenders legal principle of Joint Enterprise in the case before her, as was then subsequently put forward by the State in their closing submission.
   7. That the magistrate erred in law when she failed to address the legal principles of Aiding and Abetting the Principal Offenders and Joint Enterprise and how they applied to the case before her.\
   8. That the learned trial magistrate erred in law and fact when she failed to properly evaluate the whole scheme of evidence according to the particularized preference of the charge and subsequently failing to consider the absence of evidence of the appellant involved in the actus reus of the offence, the failure of which led to a judgment that was unsafe and unsatisfactory and amounts to a miscarriage of justice.
   9. That the learned trial magistrate erred in law when she failed to properly address the evidence applicable to each element of each of the count distinctly and separately as required by law, the failure of which resulted in a judgment which was perverse and amounts to a miscarriage of justice.
   10. That the learned trial magistrate erred in law when she failed to identify the evidence that satisfied the element of bringing into hatred or contempt or to excite disaffection against the Government as by law established, the failure of which resulted in a judgment passed in consequence of an error of law and is therefore perverse and unsafe.
   11. That the learned trial magistrate erred in law and fact in failing to address the issue of corroboration of accomplice evidence as it pertained to this case.
   12. That the learned trial magistrate erred in fact and law in not properly addressing the evidence of the accomplices who were immunized and the requirement to point out which evidence was capable of corroborating the witness/accomplices.
   13. That the magistrate erred in law when she relied on the evidence of PW13, Taniela Ligairi, to convict the appellant when, his evidence did not corroborate any of the 3 main prosecution witnesses, who were also the principal offenders.
   14. That the learned magistrate erred in fact and in law in finding in her sentence that there was evidence of planning thus making it an aggravating factor.
   15. That the sentence passed against the appellant is disproportionate in all the circumstances of the case and failed to properly consider relevant issues and took into account irrelevant matters resulting in a sentence which is manifestly excessive.
   16. That the learned trial magistrate erred in law in ruling that there was a case to answer when on the elements submitted by the State, ‘did an act namely the spray painting of words’ was an element of the offence but there was no evidence of the actus reus by any of the prosecution witnesses.
   17. That the learned trial magistrate erred in law in not addressing the applicable legal principle to this case in light of the charge and that the State’s case began with the appellant being charged as a principal offender but the case was run on the basis of Aiding and Abetting
   18. That the learned trial magistrate erred in fact and law in not properly addressing the evidence of the accomplices and the requirement of warning which is absent in the judgment and such absence resulted in an unsafe judgment.
       
6. Upon perusing the grounds of appeal filed on behalf of both appellants, I note that the following grounds are identical;
   1. ground 1 of the first appellant and ground 8 of the second appellant;
   2. ground 2 of the first appellant and ground 9 of the second appellant;
   100. ground 3 of the first appellant and ground 10 of the second appellant; and
   4. ground 6 of the first appellant and ground 18 of the second appellant;
      
7. Further, grounds 1 to 5 of the first appellant and grounds 1 to 10, 16 and 17 of the second appellant raises issues as to whether the Learned Magistrate had erred in identifying the proper elements that needed to be established against the appellants and whether the Learned Magistrate erred in the manner in which she assessed the evidence adduced in the case to find each appellant guilty of the offence.
   
8. Ground 6 of the first appellant and grounds 11, 12, 13 and 18 of the second appellant raises the issue as to whether the Learned Magistrate erred in the manner in which she dealt with accomplice evidence.
   
9. Ground 7 of the first appellant and grounds 14 and 15 of the second appellant are grounds against the sentence.
   

Factual matrix

10. Altogether 14 witnesses have given evidence for the prosecution. Four witnesses who were identified to be accomplices who had been given immunity by the Director of Public Prosecutions and one other witness who had said he was a police officer working undercover had testified on how they were involved in spray painting phrases such as ‘AG OUT’, ‘PM OUT’. They have given accounts of seeing the appellants and talking to the appellants together with those who were involved in the maneuver. However, they have agreed that the two appellants did not spray paint or give them instructions.
    

Appeal against the conviction

The elements of the offence and attributing criminal liability to each appellant

[Grounds 1 – 5 of the first appellant; Grounds 1 to 10, 16 and 17 of the second appellant]

11. As I have mentioned above, in essence, on the above grounds the appellants assail the foundation based on which the Learned Magistrate found each appellant guilty of the offence.
    
12. In pursuing the aforementioned contention, the following issues have been raised inter alia;
    1. Failure to identify the proper elements required to be established by the prosecution in terms of the charge;
    2. The charge is defective as it is not alleged in the charge that the appellants were charged as aiders and abettors;
    100. Failed to consider the elements that are relevant to aiding and abetting in light of the fact that, in the closing submissions the prosecution had alleged that the appellants were accessories (aiders and abettors) though the appellants were charged as principle offenders; and
    4. Failure to apply the proper legal principles in attributing the criminal liability to each appellant.
       
13. I would consider it appropriate first to identify the elements the prosecution needs to establish in order to bring home a charge under section 67(1)(a) of the Crimes Act.
    
14. Section 67 of the Crimes Act provides thus;
    

67. —(1) A person commits an indictable offence (which is triable summarily) if the person —

(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do any act with a seditious intention;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or

(d) imports any seditious publication, unless he has no reason to believe that it is seditious.

15. The appellants in this case are charged under section 67(1)(a) of the Crimes Act and therefore the elements of the offence can be identified as follows [See State v Riogi [2001] FJHC 61; Haa0060j.2001s (20 August 2001)];
    1. The accused;
    2. Did an act;
    100. The act was done with seditious intention
         
16. Section 66(1) provides five categories of intention [subsections 66(1)(i) to 66(1)(v)] that would amount to ‘seditious intention’. The section also outlines four intentions [subsections 66(1)(a) to 66(1)(d)] and provides that an act\speech\publication that intends one of those is not seditious. The said section reads thus;
    

66. — (1) A "seditious intention" is an intention —

(i) to bring into hatred or contempt or to excite disaffection against the Government of Fiji as by law established; or

(ii) to excite the inhabitants of Fiji to attempt to procure the alteration, otherwise than by lawful means, of any matter in Fiji as by law established; or

(iii) to bring into hatred or contempt or to excite disaffection against the administration of justice in Fiji; or

(iv) to raise discontent or disaffection amongst the inhabitants of Fiji; or

(v) to promote feelings of ill-will and hostility between different classes of the population of Fiji.

But an act, speech or publication is not seditious by reason only that it intends—

(a) to show that the Government of Fiji has been misled or mistaken in any of its measures; or

(b) to point out errors or defects in the government or Constitution of Fiji as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

(c) to persuade the inhabitants of Fiji to attempt to procure by lawful means the alteration of any matter in Fiji as by law established; or

(d) to point out, with a view to their removal, any matters which are producing or having a tendency to produce feelings of ill-will and enmity between different classes of the population of Fiji

17. Further, section 66(2) provides that;

In determining whether the intention with which any act was done, any words were spoken, or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.

18. It is pertinent to note that subsection 67(1)(a) refers to ‘any act’ whereas section 67(1)(b) refers to ‘seditious words’ and 67(1)(c) and 67(1)(d) refers to ‘seditious publications’. Further, in subsection 67(1)(a), the words ‘seditious intention’ are found whereas the said words are not repeated in the other subsections.
    
19. Blacks Laws Dictionary defines the word ‘sedition’ as follows;
    

Communication or agreement which has as its objective the stirring up of treason or certain lesser commotions, or the defamation of the government. Sedition is advocating, or with knowledge of its contents knowingly publishing, selling or distributing any document which advocates, or, with knowledge of its purpose, knowingly becoming a member of any organization which advocates the overthrow or reformation of the existing form of government of this state by violence or unlawful means. An insurrectionary movement tending towards treason, but wanting an overt act; attempts made by meetings or speeches, or by publications, to disturb the tranquillity of the state.

20. It is pertinent to note that the seditious offences legislated under section 67(1) of the Crimes Act in essence involve communicating ideas, ideas that tend to disturb the tranquility of the state, the government authority. Therefore, the particular act done to communicate such ideas would necessarily reflect the underlying intention, which is ‘seditious intention’.
    
21. Thus, an act done with seditious intention is a seditious act; words uttered with seditious intention are seditious words and a publication made with seditious intention is a seditious publication. Nevertheless, I would not identify the offence of sedition especially under subsections 67(1)(b), 67(1)(c) and 67(1)(d) as a strict liability offence for the reasons I will discuss later. Given this peculiarity in the offence of sedition, I would further reach the following conclusions.
22. First, the word ‘act’ in subsection 67(1)(a) should be understood as referring to a ‘seditious act’. To further explain the reason for this deduction, I would pose the following question; if a person who has one of the seditious intentions listed under section 66(1) of the Crimes Act, coughs with that intention, would that amount to sedition simply because coughing is an act? What would be the situation where a person walks or gets into a bus to go to a shop to buy bread while having a seditious intention? Would walking or getting into a bus amount to acts within the meaning of section 67(1)(a) and thereby constitute sedition? The answer to the above questions would certainly be in the negative.
    
23. Given the provisions under section 66(2) of the Crimes Act, it shall be deemed that a person intended the consequences which would naturally follow from his act at the time and under the circumstances in which the act was done. Therefore, for that person to be charged under section 67(1)(a) of the Crimes Act, the intention so deemed from the ‘act’ committed should be a ‘seditious intention’. But unless an act is a ‘seditious act’, it would not be possible for the intention so deemed to be a ‘seditious intention’. Hence my first conclusion: The ‘act’ that would constitute the actus reus under section 67(1)(a) should be construed as a ‘seditious act’.
    
24. Secondly, in my view, it is not an oversight on the part of the lawmakers not to include the words ‘with the seditious intention’ in sub paragraphs (b), (c) and (d) of section 67(1). For example, the offence under subsection 67(1)(b) involves uttering ‘seditious words’. Since section 66(2) provides for the intention to be deemed from the words uttered, if and when it is established that seditious words were uttered, it follows that seditious intention is also established. On the other hand, in deciding whether any words uttered by a person are ‘seditious words’, it should be borne in mind that it won’t be possible to find that words are seditious words unless the intention those words were uttered with could be identified as a seditious intention. Therefore, the absence of the words ‘with sedition intention’ under subsections 67(1)(b), 67(1)(c) and 67(1)(d) does not mean that ‘seditious intention’ need not be proved to bring home charges under those subsections. Nevertheless, ‘seditious intention’ cannot be regarded as an additional element to be proved in relation to those subsections for the aforementioned reasons.
    
25. On the question whether the offence of sedition in terms of subsections 67(1)(b), 67(1)(c) and 67(1)(d) of the Crimes Act is a strict liability offence, I would answer that question in the negative for three reasons. First, the Crimes Act does not identify the said offence as a strict liability offence in terms of section 24(1) of the Crimes Act. Secondly, an act would become an actus reus under section 67(1) only if a seditious intention as provided under subsections 66(1)(i) to 66(1)(v) could be deemed from that act. Thirdly, section 66(1) clearly provides that if the intention was one that would come under subsections 66(1)(a) to 66(1)(d), then the relevant act/speech/publication is not seditious, making it plain that intention of an accused is relevant in determining criminal liability.
    
26. Given the definition provided under section 66(1) of the Crimes Act alluded to above for the term ‘seditious intention’ and taking into account the provisions of section 66(2) of the Crimes Act, if I am to answer the question what should be attributed to the word ‘seditious’ in order to define the term ‘seditious act’, ‘seditious word’ or ‘seditious publication’; my conclusion would be that a seditious act/ a seditious word/ a seditious publication would be an act/word/publication;
    

(i) which brings into hatred or contempt or excites disaffection against the Government of Fiji as by law established; or

(ii) which excites the inhabitants of Fiji to attempt to procure the alteration, otherwise than by lawful means, of any matter in Fiji as by law established; or

(iii) which brings into hatred or contempt or excites disaffection against the administration of justice in Fiji; or

(iv) which raises discontent or disaffection amongst the inhabitants of Fiji; or

(v) which promotes feelings of ill-will and hostility between different classes of the population of Fiji.

27. In the light of the above discussion, though the elements of the offence under section 67(1)(b) on the face of it are, (1) the accused; (2) uttered seditious words, the said second element can in fact be expanded for the purpose of clarity and simplicity and the elements of the offence under section 67(1)(b) could be settled as follows;

(1) the accused;

(2) uttered words;

(3) with seditious intention.

28. A similar approach could be taken with regard to the offences under section 67(1)(c) and 67(1)(d).
    
29. In the circumstances, in order to prove the offence of sedition under section 67(1)(a) of the Crimes Act, the prosecution should prove beyond reasonable doubt that the accused did an act with the intention that would come within the purview of one of the subsections from 66(1)(i) to 66(1)(v) of the Crimes Act. It is understood that in order to prove beyond reasonable doubt that the intention was one of the five intentions so provided under the said subsections the prosecution should also establish beyond reasonable doubt that the intention of the accused did not come under the four limbs provided under subsections 66(1)(a) to 66(1)(d). In my judgment, the approach to be taken in dealing with the provisions of subsections 66(1)(a) to 66(1)(d) is the same approach relevant to the defence of alibi. That is, rebutting an alibi is nothing more than proving beyond reasonable doubt that it was the accused who committed the offence and no one else; the first element of any criminal offence which is based on the identity of the offender.
    
30. This brings myself to the final issue I would deal with in regard to the elements. That is, given that it is a defence to a charge under section 67(1) of the Crimes Act that the intention of the accused was one of those provided under subsections 66(1)(a) to 66(1)(d), the burden of proof an accused is required to discharge in proving that defence.
    
31. Usually, ‘to deem’ is to presume or to consider something in a particular way and it is not unusual at law to make provisions to arrive at certain presumptions with regard to criminal offences. However, it should be noted that the provisions under section 66(2) do not provide for a specific rebuttable presumption like the presumption relating to possession under section 32 of the Illicit Drugs Control Act 2004. For the reason that the provisions under section 66(2) of the Crimes Act do not expressly create a presumption to the effect that ‘a specific matter exists until the contrary is proved’, the said provisions do not fall within the purview of section 60(c) of the Crimes Act and therefore does not attract a legal burden on an accused.
    
32. In essence, what section 66(2) provides is for the intention to be deemed from the conduct. It should not be forgotten that depending on the conduct in question, the intention so deemed may not necessarily be a seditions intention provided in subsections 66(1)(i) to 66(1)(v) and it is possible that it could be any other intention that would not come within the purview of the said provisions, even one under subsections 66(1)(a) to 66(1)(d).
    
33. Given the above reasons, in my judgment, the defence that is identified in terms of subsections 66(1)(a) to 66(1)(d) would come within the purview of section 59 of the Crimes Act and would only invoke an evidential burden.
    
34. Section 59 of the Crimes Act provides thus;

59. — (1) Subject to section 60, a burden of proof that a law imposes on a defendant is an evidential burden only.

(2) A defendant who wishes to deny criminal responsibility by relying on a provision of this Decree (other than section 28) bears an evidential burden in relation to that matter.

(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.

(4) The exception, exemption excuse, qualification or justification need not accompany the description of the offence.

(5) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.

(6) The question whether an evidential burden has been discharged is one of law.

35. To rely on the provisions of subsections 66(1)(a) to 66(1)(d) in order to defend a charge under section 67(1) of the Crimes Act would be to ‘deny criminal responsibility by relying on the provisions of the Crimes Act’ as provided under section 59(2) above. It is noted that the provisions of the said subsections 66(1)(a) to 66(1)(d) would come under the purview of section 59(3) above as well.
    
36. Now, I would turn to examine how the Learned Magistrate dealt with the elements of the offence in the case at hand.
    
37. I note that the Learned Magistrate had cited two cases decided by this court namely State v Waqabi> [2017] FJH] FJHC 567; HAC011.2016 (27 July 2017) and State v Niudamu [2017] FJHC 145; HAM30.2017 (27 February 2017). I am mindful of the fact that the manner the elements of the offence of sedition had bpproached in the said two ctwo cases is different and also that the approach I have taken in this case is different from both cases.
    
38. However, it is pertinent to note that though the Learned Magistrate had decided to cite both decisions alluded to above, her judgment does not reflect that she had followed either of them.
    
39. The Learned Magistrate’s assessment of the evidence to find the first appellant guilty of the offence is noted in the impugned judgment as follows;

PW1 gave evidence that they (Eparama, Mosese and Eroni) travelled with Jagath to Nausori in his car. The purpose of the visit was to check out the sites for the spray and also to obtain a hire car. This evidence places the 1^st accused within the group of people who were eventually involved in the spray painting. PW1 once again travelled to 9 miles with the 1^st accused where they got into the hired car and went back to Suva. This hired car according to PW1 was used later that night to transport them to the places of spray paint. There was no dispute that PW1, PW2 and PW3 were involved in the act of spray painting and that they were instructed by Eparama.

The Court finds that the 1^st accused was involved in transporting Accused 1, PW1 and PW3 to Nausori in his car together with Eparama to enable the 2^nd Accused to hire a car.

In respect of Seditious intention PW 13 stated that he was approached together with his sister by 1^st accused after the police had spoken to them in September. He met the 1^st accused and Daniel Urai for lunch who discussed the offer of $1 million dollars for the re-arming of the Counter Revolutionary Unit for the purpose of protecting people in the event there was any intervention by RFMF for the intended marches. This shows that the 1^st accused was aware that any act against the government had the possibility of creating dissatisfaction against the government.

40. The assessment of the evidence to find the second appellant guilty of the offence is noted as follows;

According to PW 13 he saw the 2^nd accused hand (sic) a piece of A4 paper to Eparama, he did not know what was written on the paper. PW1 gave evidence that they were given a piece of A4 paper by Eparama which paper contained the words which were to be spray painted. Further PW 4 told the Court that he hired a car for the 2^nd accused who was his cousin. The 2^nd accused through his counsel suggested that the vehicle was to be used for a family function. PW 1 confirmed that they were handed the hired car and car keys at 9 miles and later used the vehicle for spray painting. The vehicle was returned the next day by PW 4.

In respect of seditious intention, this court finds that there was a government in place in August 2011. . . .

. . .

In his evidence the 2^nd Accused said that . . .

PW13 however stated that Accused 2 . . .

This evidence by PW 13 supports the fact that the accused 2 had intentions which were seditious in nature and had the possibility of creating dissatisfaction against the government.

41. With regard to both the appellants, it is clear that the Learned Magistrate had not made a finding as to what was the alleged act that was committed with the seditious intention. It is pertinent note that, the Learned Magistrate had not paid any attention to the specific words that were allegedly spray painted and had not made a determination on whether the actus reus under section 67(1) of the Crimes Act had been established beyond reasonable doubt given the evidence adduced.
    
42. Moreover, according to the charge and also the evidence led, the offence was allegedly committed jointly by more than one person and there was clear evidence that the two appellants did not spray paint the alleged words themselves. Given the above, it was necessary for the Learned Magistrate to consider;
    
    1. whether the alleged offence had been committed by more than one person with common intention and whether each appellant shared that intention and took some part in committing the offence; or,
       
    2. whether this was a case where the criminal responsibility is extended to each appellant under section 46 of the Crimes Act, in that, to consider whether each appellant with others formed a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose the offence under section 67(1) was committed and the said offence was of such a nature that its commission was a probable consequence of the prosecution of the said unlawful purpose.
       
43. Another issue raised by both counsel for the appellants premised on the purported shifting of the goalposts by the prosecution. It was submitted that until the closing submissions the indication by the prosecution was that the appellants were considered as principle offenders but during the closing submissions the prosecution alleged for the first time that appellants were aiders and abettors.
    
44. Section 45 of the Crimes Act reads thus;

Complicity and common purpose

45. — (1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

(2) for the person to be guilty —

(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence must have been committed by the other person.

(3) Subject to sub-section (6), for the person to be guilty, the person must have intended that —

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person —

(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.

(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.

(6) Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

(7) If the trier of fact is satisfied beyond reasonable doubt that a person either—

(a) is guilty of a particular offence otherwise than because of the operation of sub-section (1); or

(b) is guilty of that offence because of the operation of sub-section (1)

But is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.

45. It is to be noted that subsection (1) above provides that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence. In view of the provisions of subsection (7) above a judge or a magistrate can find an accused guilty of an offence even when that judge or magistrate is unable to determine whether the accused is guilty because of the operation of subsection (1) or otherwise.
    
46. Therefore, though the factors to be considered in dealing with an accused as a principle offender is slightly different from the factors to be considered where an accused is dealt with as an accessory; given the provisions of subsections 45(1) and 45(7) above, in my view, it is desirable but not mandatory for the prosecution to specifically mention in the charge that an accused is charged as an accessory or a principle and more importantly, the prosecution is not precluded from arguing that the accused should be found guilty as an aider or abettor for the reason that the charge does not indicate same.
    
47. For further insight on this issue I would quote the following from Archbold [2013 Edition, 17-67];
    

The law in relation to the mens rea of accessories has developed considerably in recent years. The development has occurred particularly in the context of offences against the person: see post, §§19-23 et seq. It is clear now that no additional mental element beyond what is required for a principal is necessary to make a person guilty as an accessory (DPP for Northern Ireland v. Lynch[1975] A.C. 653, HL), and that, in one respect, a lesser mental element may suffice for an accessory than for a principal.

In R. v. Powell (Anthony Glassford);R. v. English[1999] 1 A.C. 1, HL, it was held (following Chan Wing-Siu v. Queen[1984] UKPC 27; , The[1985] A.C. 168, PC), that a secondary party is guilty of murder if he participates in a joint venture realising (but without agreeing thereto) that in the course thereof the principal might use force with intent to kill or to cause grievous bodily harm, and the principal does so. The secondary party has lent himself to the enterprise and, by doing so, he has given assistance and encouragement to the principal in carrying out an enterprise which the secondary party realises may involve murder.

It is submitted that this should be the approach whenever it is alleged that the defendant is guilty as an aider and abettor (i.e. someone who assists the commission of the crime whether by the supply of the instrument by means of which the crime is facilitated or committed, by keeping watch at a distance from the actual commission of the crime, by active encouragement at the scene, or in any other way), whatever the crime alleged. To realise something might happen is to contemplate it as a real not a fanciful possibility: see R. v. Roberts, 96 Cr.App.R. 291, CA, post, §19-29. Thus, if A supplies B with a jemmy realising that B may use it for the purposes of burglary, and B so uses it, A will be guilty of burglary, even though he had no idea what premises B intended to burgle. If B also uses it to inflict lethal violence on the occupier of the premises and does so with an intent to kill, A will only be guilty of murder if he contemplated such use of the jemmy as a real possibility.

On the basis of this analysis, it can be seen that it is somewhat misleading to say that the mental element required of an aider and abettor may be a lesser one than that required of the principal. It is by definition a different one; the aider and abettor in murder is never going to have an intention to kill. He may, of course, hope or desire that the principal does kill but what needs to be proved is an intention to render assistance to another in the realisation that that other may kill and do so deliberately or intending to inflict serious injury.

It is not necessary that, at the time of any act of assistance, the principal should have formed a settled intention to commit the crime; all that was necessary was that at the time of the act of assistance, the defendant foresaw as a real possibility that the principal would commit the crime: R. v. Bryce (Craig Brian)[2004] [2005] EWCA Civ 292; 2 Cr.App.R. 35, CA. Where the act of assistance was done in advance of the crime, which was committed in the defendant's absence, it must be proved that the act in fact assisted the later commission of the crime, that it was done deliberately, that the defendant realised that it was capable of assisting the commission of the offence, and foresaw its commission as a real possibility, and that when doing the act he intended to assist the principal in what he was doing: ibid. As to the avoidance of liability where this much is proved, see post, §18-26.

48. It is further stated in Archbold [2013 Edition] at 18 – 32 thus;
    

It is usual to indict secondary parties, within the Accessories and Abettors Act 1861, s.8 (»»text) (ante, §18-2), as principals. No objection could be taken to an indictment in such form, but it is desirable that the particulars should bear some relation to the realities, making it clear, if it be the case, that the defendant is alleged to be an accessory: see Maxwell v. Director of Public Prosecutions for Northern Ireland, 68 Cr.App.R. 128 (per Viscount Dilhorne at p. 143; per Lord Hailsham at p. 147; per Lord Edmund Davies at p. 150); R. v. Gaughan, 155 J.P. 235, CA; and R. v. Taylor (Shaun Keith)[1998] Crim.L.R. 582, CA. But there is nothing to prevent the indictment alleging participation as a principal where the prosecution case is advanced on alternative bases of participation as a principal or as an accessory: Gaughan, ante.

49. Therefore, I do not find any merit in the arguments advanced on behalf of the appellants that are suggestive of the charge being defective for the reason that the appellants’ participation was not specifically alleged as accessories. However, especially for the reason that the prosecution had taken up the position during the closing address that the appellants were aiders and abettors, it was required of the Learned Magistrate to give her mind to whether the appellants are to be dealt with as principles or accessories because the two situations involve two different considerations as discussed above. The absence of any reference on that matter in the impugned judgment suggests that the Learned Magistrate had failed in that regard. The errors made by the Learned Magistrate in the case at hand is further compounded given this failure.
    
50. It is manifestly clear from the impugned judgment that the Learned Magistrate had either breached or not followed several fundamental legal principles. Given the above discussion on the errors made by the Learned Magistrate, any further examination on the manner in which the Learned Magistrate dealt with the elements of the offence is not necessary because the errors discussed thus far are more than sufficient to come to the conclusion that the Learned Magistrate’s finding of guilty of each appellant of the relevant charge in this case cannot be validated.
    

Accomplice evidence

[Ground 6 of the first appellant; Grounds 11, 12, 13, 18 of the second appellant]

51. As mentioned before, PW1, PW2, PW3 and PW 13 in the instant case were accomplices. The appellants allege that PW4 is also an accomplice though the said witness had said in his evidence that he was a police officer who was engaged in a covert operation.
    
52. I note that the Learned Magistrate in her judgment had cited the case of Mudliar v State [2007] FJCA 16; AAU0032.2006 (23 March 2007) and had reproduced few paragraphs from the said judgment in Mudliar (supra). However, the Learned Magistrate does not indicate in the impugned judgment as to how she applied the principles discussed in Mudliar (supra) when she dealt with accomplice evidence.
53. In the case of Colati v State [2017] FJSC 4; CAV0026.2016 (20 April 2017) the Supreme Court held (per His Lordship Justice Aluwihare) at paragraph 43;
    

Pivotal no doubt, to decide the issue raised with regard to the evidence of witness Simoni is whether the said witness could be considered as an accomplice. In the case of Davies v Director of Public Prosecutions 1954A.C 378 the House of Lords distinguished between accomplices in the actual crime, that is, a person who is particeps criminis in respect of the actual crime charged either as a principle or as an accessory before or after the fact, and accomplices in the general criminal transaction, that is, a person who is not particeps criminis in respect of the actual crime charged but who was criminally implicated in the transaction which gave rise to the actual crime charged. According to the House of Lords, it is only in the former class of accomplices is there an imperative duty to warn the jury of the danger of convicting without corroboration.

54. I am unable to find any discussion in the impugned judgment on the issue of the credibility or reliability of the witnesses, let alone the evidence of accomplices. In the circumstances, I find no difficulty in concluding that there is merit in the issues raised on behalf of the appellants in relation to the manner the Learned Magistrate had dealt with accomplice evidence.
    
55. However, I wish to highlight that the previous common law requirement that made it necessary to warn against convicting an accused on uncorroborated evidence not only of an accomplice, but also of a complainant of sexual assault and child witnesses had been abolished by Criminal Justice and Public Order Act 1994. It is stated in Archbold [2013 Edition] at 4 – 404c, 404d thus;
    

The law relating to corroboration became increasingly technical. The detailed rules related, inter alia, to the meaning of "corroboration", to who was an accomplice, to what evidence was capable of constituting corroboration, to the respective functions of judge and jury and to the nature of the direction to be given by the judge to the jury. The rules came to be criticised on a number of grounds. First, they were inflexible with an absolute obligation to give the warning if the witness came within one of the three categories; in particular cases, the warning would, on any sensible appraisal, be inappropriate. Secondly, the rules were so complex that it was widely believed that a typical corroboration direction bordered on the unintelligible to the ordinary person (per Lord Diplock inDPP v. Walker,ante, atp. 328). Thirdly, the rules produced anomalies. An accomplice of a defendant who was tried with him and who gave evidence against him was not subject to the rule (although he was subject to a requirement to give a warning short of the full corroboration direction, post, §4-404n). Fourthly, there was a significant change of perception as to the reliability of evidence given by children. Fifthly, the corroboration direction in sexual cases was seen as being particularly offensive to women.

In consequence of these criticisms, legislation has abolished any requirement for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a child, or of an accomplice of the accused or of the complainant in a sexual offence. These changes were effected in two stages; the change in relation to children was effected by the CJA 1988, s.34 (»»text) (post, §8-50), and the change in relation to the other two categories was brought about by the CJPOA 1994, s.32 (»»text) (post, §4-404j).

56. In Fiji, section 129 of the Criminal Procedure Act 2009 had specifically provided that corroboration of the evidence of a complainant in a case of a sexual nature is not necessary and it is not required to give a warning to the assessors relating to absence of such corroboration. Further, the Supreme Court in Kumar v State [2016] FJSC 44; CAV0024.2016, (per His Lordship Justice Keith) declared that the requirement in section 10(1) of the Juveniles Act for the unsworn evidence of a child to be corroborated is inconsistent with the Constitution and is therefore invalid. However, Keith J in Kumar (supra) further held that;
    

“. . . there may be some cases in which the trial judge thinks that a warning of this kind is desirable. That may have something to do with the nature of the child’s evidence, or the way it was given, or it may have something to do with the assessors themselves. The trial judge is in the best position to assess that. So although there should no longer be any requirement on trial judges to give a warning of this kind, they may do so if they think that it is appropriate in a particular case.”

57. Therefore, it may be appropriate in a suitable case to deliberate on whether the courts in Fiji should continue to retain the requirement to warn against uncorroborated evidence of an accomplice as it is, or should modify the said rule as Keith J did in relation to unsworn evidence of a child in Kumar (supra). At the end, irrespective of the fact whether a witness is an ‘ordinary witness’ (who would not on the face of it fall under any particular category), a child, complainant of a sexual assault, an accomplice, etc. the question to be posed in respect of the evidence of any witness is the same: that is, whether the evidence is credible and reliable.
    

Conclusion on the Appeals against Convictions

58. It is manifestly clear form the errors in the impugned judgment identified above that a substantial miscarriage of justice had occurred in relation to the convictions entered. Therefore the appeals against the convictions should be allowed and the conviction of each appellant should be set aside.
    

The appeals against Sentences

59. Based on the outcome of the appeals against convictions the sentence imposed on each appellant should also be set aside. Hence, the consideration of the appeals against sentences would amount to a mere academic exercise and I would therefore refrain myself from considering the appeals against the sentences.
    

Whether a re-trial should be ordered

60. Now the question is whether to order a retrial.
    
61. In the case of Vakacereivalu v State [2015] FJCA 25; AAU116.2011 (27 February 2015) the Court of Appeal (per Goundar J) had stated thus;

[16] In the case of Au Pui-Kuen v. Attorney General of Hong Kong ([1980] AC 351 at 356) his Lordship Lord Diplock in delivering their opinion of the Privy Council has stated:

"The power to order a new trial must always be exercised judicially. Any criminal trial is to some degree an ordeal for the accused; it goes without saying that no judge exercising the discretion judicially would require a person who had undergone this ordeal once to endure it for the second time unless the interests of justice required it."

And later at p. 357:

"The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They include the interests of the public ... that those persons who are guilty of serious crime should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing up to the jury."

[17] In view of the above finding the exercise of discretion to order a retrial requires the consider of seof several factors, some of which may favour a retrial and against it.

[18] Mainly it included therests of the public that people who are accused of serious crimes be brought to justice avce avoiding it purely on a technical error judge. Another factor to b to be considered is the strength of the evidence available against an accused. The length of time that has elapsed from the time of the offence and the new trial if one is ordered is also a factor to be taken into consideration in certain cases. Yet another, factor which ought to be considered is the prejudice that would be caused to an accused due to the non-availability of the evidence which was available at the first trial.

. . .

[25] It is also pertinent to know that the Court of Appeal in Azamatula v. The State FJCA 84; AAU0060.2006S (14 November 2008) which followed the principles in Au Pui Kuen (supra) allowed an appeal against an order of the High Court where a retrial was ordered after 10 oars of the date of offence. Further, the Court of Appeal in Azamatula (supra) had taken into account the weaknesses in the prosecution case and the long delay in allowing the appeal. [Emphasis added]

62. I am mindful of the fact that the offence in this case was allegedly committed in August 2011. However, sedition is a serious offence. The convictions in the instant case are to be set aside due the errors made by the Learned Magistrate. Taking into account the evidence adduced before the Magistrate Court but of course without going into the issue of credibility and reliability of the evidence, I do not find that the case for the prosecution in the instant case is weak in the sense to convince myself against ordering a retrial.
    
63. I am of the view that the interest of justice is best served by ordering a retrial in this case. I would therefore order a retrial.

Orders;

1. Appeals against the conviction of each appellant are allowed;
2. The judgment of the Magistrate Court Suva, Criminal Case No. 1618 of 2011 dated 26/03/18 where the appellants were convicted and the resultant sentences imposed on the appellants are set aside;

100. A retrial is ordered;

4. The case to be listed for mention before the Chief Magistrate on 24/09/18 at 9.30 a.m. for the Chief Magistrate to assign a different magistrate to hear this case; and
5. The appellants are released on the same bail conditions imposed in Magistrate Court Suva, Criminal Case No. 1618 of 2011 and are warned to appear in the said case accordingly.
   

Vinsent S. Perera
JUDGE

Solicitors

Mamlakah Lawyers, Suva for the 1^st Appellant.

Pacific Chambers, Suva for the 2^nd Appellant.

Office of the Director of Public Prosecutions for the Respondent.