State v Sucutuiqaqa [2001] FJLawRp 114; [2001] 2 FLR 421 (5 December 2001)

STATE v IOSEFO SUCUTUIQAQA, KITIONE CECENA, PAULA GONEKALOU, VILIAME SEVUTIA, BENEDITO TURAGA, JONE VULAVULA, LIVAI DELAI, SAMUELA VASUCVA, ISIRELI DAKUNIMATA & LENAITASI VUNIWAWA

High Court Criminal Appellate Jurisdiction
23 November, 5 December, 2001 HAA 0061/01

Criminal law – unlawful assembly – elements of offence - whether evidence available on each element of unlawful assembly – whether defect in charge where common purpose is different from that specified in the charge – court's duty to amend charge to meet circumstances of the case –whether court failed to properly distinguish the case of Rt Osea Gavidi and Others v R, and to apply Abdul Sattar and Ram Gopal v R – Penal Code ss86 and 87; Criminal Procedure Code s214

Criminal law - practice and procedure - unlawful assembly – no case to answer – whether magistrate's acquittal proper – 2 witnesses not available, being out of the country – matter part-heard – prosecution gave no reason for prejudice - Penal Code ss86 and 87; Criminal Procedure Code s210

Evidence – judicial notice – whether judicial notice may be taken of armed takeover of Parliament and hostage crisis – scope of judicial notice in those circcumstances

Prosecution led 28 of 30 witnesses at trial before seeking an adjournment as 2 witnesses were away overseas and would not be available for another 4 months. Defence counsel objected to the matter being part-heard. No reason was given of what evidence each would say and whether prosecution would be prejudiced by each's absence. The magistrate upheld a defence submission of no case to answer an acquitted the Respondent under section 210 of the Criminal Procedure Code. The State appealed on the grounds that the magistrate failed to exercise his discretion judicially in refusing the State's application for an adjournment; failed to consider the evidence pertaining to the breach of peace; failed to distinguish the case of Ratu Osea Gavidi and Others v R Crim. App. 11/82 and to apply Abdul Sattar and Ram Gopal v R [1959] 7 FLR 14; and failed to consider the prosecution evidence in its totality. At the hearing of the appeal, the State conceded that the absent witness may not have assisted the case at all because their evidence was based on hearsay intelligence reports, but the State said they could have given further evidence of common purpose of the assembly. The appellate Court found the absence of explanation to the Magistrates' Court unconvincing to the prosecution's submissions. The appellate Court discussed the sufficiency of evidence before the magistrate on the charge of unlawful assembly which could lead a reasonable tribunal to convict. Although the particulars of the charge as to common purpose was different from the case as put, the appellate Court found that the trial magistrate could have amended the charge, but failed to, but in any event the reason for the common purpose itself was not an essential ingredient and did not cause prejudice to the defence. It also discussed when a Court might take judicial notice of the armed takeover of Parliament and hostage crisis.

Held–(1) The magistrate erred in finding that the prosecution failed to link stealing of food to the Respondents, or to prove that the Respondents intended to resist the appointment of an interim government, and failed to offer any specific unlawful conduct that caused the neighbourhood to fear they would cause a breach of the peace. An unlawful assembly becomes unlawful (even if the purpose of the assembly was originally lawful) when the persons assembled (not necessarily the accused persons as long as they were part of the assembly) for a common purpose conduct themselves in a manner that people in the neighbourhood will reasonably anticipate a breach of the peace. It matters not that the Respondents themselves did not steal fish or groceries or shoot anyone with the submachine gun. What matters is there was evidence that they were part of the group from which other members behaved in this way, and that their conduct led people in the neighbourhood to fear breaches of the peace. The Chief Magistrate could have considered that the group came from Parliament and were linked to the Speight's armed takeover of Parliament. There was ample evidence on all elements of the offence which might lead a reasonable tribunal to convict each of the Respondents.

Abdul Sattar & Ram Gopal v Reg [1960-61] 7 FLR 14 appl; Rt Osea Gavidi & Ors v R SC Crm App 11/82L dist.

(2) It does not matter that the common purpose of the gathering at Kalabu Fijian School was the holding of Fijian ceremonies, or that the common purpose was different from what prosecution originally alleged, as long as there was a common purpose. What the common purpose was is not an essential ingredient of the offence. The Court had a duty to amend the charge under section 214 of the Criminal Procedure Code to meet the circumstances of the case, but did not. The reference in the charge to causing instability does not render the charge defective, and has not prejudiced the conduct of the defence.

(3) The magistrate did not err in refusing an application for adjournment where two absent prosecution witnesses' statements were not disclosed prior to trial, or at all, and this would have breached the Respondent's constitutional right to disclosure and to adequately prepare its case, and where the prosecution never told the Court before the trial commenced the witnesses would be out of the country, and that a long adjournment in the middle of criminal trial would be necessary, or why the absent witness' evidence was crucial to the prosecution case, or how the State's case was prejudiced by their absence.

(4) The Chief Magistrate erred when he found that a witness required his permission to travel overseas. Here a witness has not been issued with a subpoena, and has not been warned to attend court there is no legal obligation on him to come to court at all. There is no obligation to seek the court's permission to travel, and no restrictions can be imposed on witnesses, or anyone else, who are not subjected to a specific court order.

(5) The fact of a takeover of Parliament, the hostage crisis leading to an emergency law and order situation in Fiji are now clearly notorious facts on which Courts have taken judicial notice of on since those events, thus the magistrate could have taken judicial notice, but not of the details of the takeover or the persons involved.

Chandrika Prasad v Republic of Fiji & Attorney General (No. 4) [2000] 2 FLR 89; [2001] NZAR 21; 1 LRC 665 foll; Rt Osea Gavidi & Ors v R SC Crm App 11/82L dist.

The finding of no case to answer is quashed, and substituted with a finding there is a case to answer. Matter remitted to Magistrates' Court to put accused to their defence.

Other cases referred to in Judgment
Caird & Others v R (1970) 54 Cr.App.R. 499
DPP v Neumi Kalou & Anor [1996] 42 FLR 126
DPP v Vikash Sharma and Ors [1994] 40 FLR 234
GSA Industries Pty Ltd v NT Gas Ltd 24 NSWLR 7110
Ingram v Percival (1969) 1 QB 548
Maxwell v Keun (1928) 1 KB 645
Moidean v R [1976] 22 FLR 206
Paul v DPP 90 Cr.App.R 173
Rajesh Chand & Shailesh Kumar v State (2001) AAU0056/9S 22 November 2001
Robert Tweedle Macahill v R [1980] AAU 43/80 30 September 1980
State v Kanito Matanigasau HAM 010/01

Pita Bulamainaivalu for the Appellant
Iniasi Vodo Tuberi for the Respondents

5 December, 2001 JUDGMENT

Shameem, J
On 25th of May 2001, the learned Chief Magistrate acquitted the Respondents after upholding a submission for the Defence that there was no case for them to answer, on the following charge:

Statement of Offence

UNLAWFUL ASSEMBLY: Contrary to Sections 86 and 87 of the Penal Code, Cap. 17.

Particulars of Offence

IOSEFO SUCUTUIQAQA, KITIONE CECENA, PAULA GONEKALOU, VILIAME SEVUTIA, BENEDITO TURAGA, JONE VULAVULA, LIVAI DELAI, SAMUELA VASUCA, SIRELI DAKUNIMATA, LENAITASI VUNIWAWA and others between the 21st day of July and the 27th day of July 2000, being assembled at Kalabu in the Central Division, to carry out a common purpose, namely, to cause further instability in the country should the appointment of the new Interim Government be not in their favour, conducted themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the aforesaid IOSEFO SUCUTUIQAQA, KITIONE CECENA, PAULA GONEKALOU, VILIAME SEVUTIA, BENEDITO TURAGA, JONE VULAVULA, LIVAI DELAI, SAMUELA VASUCA, SIRELI DAKUNIMATA, LENAITASI VUNIWAWA and others will commit a breach of the peace.

The State appeals against the acquittals. The grounds of appeal are as follows:

(a) that the learned Magistrate erred in law and in fact when he failed to exercise his discretion judicially in refusing the State's application for an adjournment on the following grounds:

(i) to allow two State witnesses who were crucial witnesses who were away for one week military assignment overseas to provide their testimony; and

(ii) that this case is of a serious nature involving a serious charge: State v Kanito Matanigasau Crim. App. No. HAM 010/01.

See Robert Tweedle Macahill v R Crim. App. No. 43/80 (CA), DPP v Vikash Sharma and Others Crim. App. No. HAA 0011/94, DPP v Neumi Kalou Crim. App. No. HAA 0016 of 1996.

(b) that the learned Magistrate erred in law and in fact by failing to consider the evidence pertaining to the breach of the peace and upon such evidence he is entitled by law to imply that fear by persons in the neighbourhood was caused from actions of the assembly in provoking other persons to commit a breach of the peace: Abdul Sattar and Ram Gopal v R [1959] 7 FLR 14;

(c) that the learned Magistrate erred in law and in fact by failing to distinguish the case of Ratu Osea Gavidi and Others v R Crim. App. No. 11 of 82 and apply Abdul Sattar and Ram Gopal v R [1959] 7 FLR 14 to this case;

(d) that the learned Magistrate erred in law and in fact in acquitting the Defendants under section 210 of the Criminal Procedure Code (cap 21) failing to consider the prosecution evidence in its totality.

Ground (a)
The Appellant submits that the Chief Magistrate should have allowed the State's application for adjournment because the case was one of a serious nature.

The charge was filed on the 31st of July 2000, and the case called in court on the same day. All accused pleaded not guilty and the matter was adjourned to 28.8.2000 for mention "for disclosure". On the 28th of August the matter was adjourned again for disclosure and on 29th September 2000, it was adjourned to 20th November 2000 to set a hearing date.

On 20th November for some reason not apparent from the record, another mention date was set. On the 16th of January 2001, the case was adjourned for the first hearing date, to the 6th of March 2001. On the 6th of March, the prosecution said first that they were ready to proceed. Defence Counsel said they were not ready because they had only received disclosure on the Sunday before (on 4th March) and they needed more time to prepare the defence. The prosecutor then said that he was only given the file the Friday before by the DPP's Office, and that he was not responsible for the preparation of the case. It appears that this was a joint application for adjournment. There were 30 witnesses present, all of whom were warned by the court to return for trial on 22nd May 2001.

The trial proceeded on 22nd May 2001, and continued on the 23rd and 24th of May. On the 24th of May after calling the prosecution witnesses present, the prosecution asked to adjourn the case to September. The record reads as follows:

"PROSECUTION: Apply to adjourn the case to September to await the arrival of Jone Baledrokadroka and Alfred Tuatoka on the ground that they are material witnesses.

COURT: Why were they not in court when they were duly summoned?

PROSECUTION: I don't have any answer.

TUBERI: Object to any adjournment. The above witnesses are the complainant in this matter. They should be in court. They did not seek permission to go out of the country.

PROSECUTION: Ask for more time.

COURT: 1. These days the Suva Magistrates Court are so busy with the normal yearly criminal cases.

i. The May 19th crisis has resulted in extra criminal cases being assigned to the Suva Magistrates Court, to dispose of according to law.

ii. The prosecution as officers of the Court, had a duty to the Court, to seek its permission, for the travelling overseas of its witnesses, so that case schedules could be re-set.

iii. However, for whatever reasons, the prosecution by conduct, have seen it fit, not to seek this court's permission for the above witnesses to travel overseas.

iv. The Court cannot waste its time and limited resource, to those, who do not prepare their case.

v. In fact, it is my duty, to deny the prosecution application."

The prosecution then closed its case (having called a total of 28 witnesses) and the defence made a submission that there was no case to answer.

From the court record, the prosecution does not appear to have told the learned Chief Magistrate, why those two witnesses were important for the prosecution. The Chief Magistrate himself did not ask the prosecution, nor did he consider the seriousness of the case before him. However the record does show some latitude to the prosecution in the previous appearances. A further adjournment was allowed for disclosure on 28th August 2000, and on the 6th of March, when both prosecution and defence were not ready, the hearing date was vacated on 6th March. Further, the two witnesses named by the prosecutor were not present in court on the 6th of March, I assume because they were not summoned by the prosecution. Finally, when the trial eventually commenced on 22nd May 2001, the prosecutor did not tell the Magistrate as he ought to have done, that two of his witnesses were out of the country and would not be available until September. The result was that the court embarked upon a trial which the prosecution knew would be part-heard (if the adjournment was granted).

The Chief Magistrate's reference to seeking the permission of the court to travel, is erroneous. Where a witness has not been issued with a subpoena, and has not been warned to attend court there is no legal obligation on him to come to court at all. There is no obligation to seek the court's permission to travel, and no restrictions can be imposed on witnesses, or anyone else, who are not subjected to a specific court order.

Having said that however, the Chief Magistrate having heard 28 witnesses for the prosecution was faced with the prospect of an adjournment of 4 months, in the middle of a criminal trial involving 10 accused persons.

In Rajesh Chand & Shailesh Kumar v The State Criminal Appeal No. AAU0056 of 1999S the Court of Appeal considered a decision of the High Court to set aside an acquittal in the Tavua Magistrates' Court, entered after a refusal by the Magistrate to grant the prosecution an adjournment. At page 4 of its judgment the Court of Appeal said as follows:

"The principles upon which an appellate court should act when reviewing a decision by a judge or magistrate to grant or refuse adjournment are well settled. The judge or magistrate has a discretion as to the proper mode and time of trying an action. The exercise of that discretion should be interfered with by an appellate court only in exceptional cases. If it appears that the result of the order made in the court below is to defeat the rights of the parties altogether or to do an injustice to one or other of the parties, the appellate court has a duty to review such an order. Where the refusal of an adjournment would seriously prejudice a party, the application should be granted. If not granted, an appellate court will intervene if the discretion has not been exercised judicially or where its exercise was based on a wrong principle or resulted in an injustice: Maxwell v Keun (1928) 1 KB 645; GSA Industries Pty Ltd. v NT Gas Ltd 24 NSWLR 7110."

In this case, although the Chief Magistrate erred in finding that his permission was necessary before witnesses could travel abroad, the prosecution did not explain why the two witnesses were important to the prosecution, and in what way the State's interests would be prejudiced by their absence. At the hearing of the appeal, counsel for the Respondents submitted that those witnesses could not have assisted the case at all because their evidence was based on hearsay intelligence reports of the activities in the Kalabu Fijian School. State Counsel conceded this but said that they would have given further evidence, not disclosed to the defence, on the question of the common purpose of the assembly. However, no further statements have been recorded from these witnesses, and to this day, no one (other than the State) knows what the further evidence was going to be and why it was important to the State's case. It is also possible that the Defence would have objected to the evidence being led in any event, on the ground that non-disclosure prejudiced the right of the defence to adequately prepare its case, and the Constitutional right to disclosure.

In these circumstances, I do not think that the learned Chief Magistrate erred in refusing to adjourn the case. The charge had been laid 9 months previously, a hearing date had previously been vacated (partly because of the prosecution), the prosecution had never told the court of these witnesses before the trial commenced, and a long adjournment in the middle of a criminal trial in which 28 witnesses have given evidence is never a desirable thing. Finally he was not told why the two witnesses were crucial to the prosecution case, and how the State's case was prejudiced by their absence.

For these reasons, this ground of appeal fails.

Ground (b)
In this ground, the Appellant says that the learned Chief Magistrate should have drawn inferences that persons in the community were afraid and that therefore the assembly was unlawful.

Section 86 of the Penal Code provides:

"When three or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, they are an unlawful assembly.

It is immaterial that the original assembling was lawful if, being assembled they conduct themselves with a common purpose in such a manner as aforesaid."

Section 87 of the Penal Code provides:

"Any person who takes part in an unlawful assembly is guilty of a misdemeanour, and is liable to imprisonment for one year."

The evidence led by the prosecution was that on the 18th of July 2000, the Manager of Dee Cees Bus Company was requested by the military to uplift people from Parliament to take them to various places in 10 buses. The next day, the 19th of July, two Dee Cees drivers picked up people from Parliament and dropped them all off at Kalabu Fijian School. One of the drivers, Bal Raj, described these people as "rebels." On that day a teacher at the school sent the children home because carrier loads of people came from Parliament to the school.

Ratu Inoke Takiveikata gave evidence that he associated with George Speight's groups and with the military and that George Speight's group was at the school to complete the Fijian ceremony called "qusi ni loaloa." His evidence at page 16 of the record was as follows:

"I was aware there were people in Kalabu. I went to the owners of the land on which Kalabu Fijian School stands and sought their permission for the Speight's group to go to Kalabu Fijian School and they agreed. They went there to complete the "qusi ni loaloa". This is to thank Speight's supporters for supporting him. This involves a Fijian feast. I used to visit them in the afternoon."

Nilesh Chand and Daya Nand gave evidence that they were selling fish at the Laqere Fish Market on the 19th of July 2000 in their separate stalls, when people in the Dee Cees buses who came from Parliament took their fish without paying. Daya Nand said that the people took his fish, and told him to keep quiet or he would die. Nilesh Chand said he was afraid. They could not identify the people who stole their fish.

Mohammed Subrati a shopkeeper gave evidence that on the 19th of July he was selling his groceries when five Fijian youths came and demanded tinned fish and tinned meat. He asked for money but they said that they were Speight's supporters and that if he didn't give them the groceries, they would burn the shop. His evidence then was:

"I told them to take anything but not burn the shop. They took groceries. There were 60 to 70 people outside. They came from a nearby Fijian school. I helped them also carry the goods to the school."

He could not identify any of the people who came to his shop.

On the 27th of July 2000, there was a military operation to disperse the crowd gathered at the Kalabu Fijian School.

Several Army Officers gave evidence that they arrived at about 6 a.m., they asked the crowd to come out, they did not, and that they shot in the air to make them come out. Warrant Officer Sairusi Davui said that all the Respondents were in the crowd and they were handed over to the police. One of the military officers was shot that morning, and some of the rebels were injured. He said that the people who gathered at Kalabu Fijian School came from the Parliament complex, and that there were CRW soldiers there, as well as criminals. The soldiers were taken to the Army Camp, and the criminals and members of the public to the Police Mobile Unit.

Superintendent Aisea Vakamocea said that the Nasova Gym was prepared for the people at Kalabu Fijian School and that 354 people were there altogether. Captain Eroni Bale, one of the Army Officers in the operation, gave evidence that there were 300 people at the Kalabu Fijian School and that he had found one gun, an Uzi submachine gun, at the school.

All the Respondents were interviewed under caution by the police. There were no objections to the admission of their statements. The 1st Respondent admitted going to the school to take food to those assembled there. He was asked what the purpose of the gathering was and he said: "Because I am an indigenous Fijian and I'll fight for my land."

He admitted that in supporting the cause he was going against the Government of the day and said he wanted a Fijian government to run so that their land would be safe.

The 2nd Respondent admitted that he was at the school and that he had also been at Parliament. He said he followed the group to the Kalabu Fijian School. He said the purpose of the gathering was to show support for George Speight.

The 3rd Respondent admitted he was at the school with about 400 people. He said he only went to drink grog and that he was not part of the group at Parliament.

The 4th Respondent's interview was not tendered. He said nothing when he was charged.

The 5th Respondent admitted he was at Kalabu Fijian School and that he had just followed his group. He said the leaders were Ligairi and George Speight and that he had also been in Parliament.

The 6th Respondent admitted that he had been at the school and said he went to visit his brothers who were there. He said he saw no criminal activities there.

The 7th Respondent admitted being at the school saying that he had gone there on the 25th of July to support those who were there. He said the real purpose of going there was that he supported "the fight for the indigenous people to be recognised." He said that they had moved from Parliament to the Kalabu Fijian School "to do the "qusi ni loaloa" on Friday 28/7/00 and then to disperse on Saturday 29/7/00." He said he had not been in Parliament.

The 8th Respondent admitted he had been at the school and said he went to visit the boys from the village. He said the purpose of the gathering was to do the "qusi ni loaloa."

The 9th Respondent admitted he was at the school and said that the purpose of the gathering was to conduct the Fijian ceremony. He said that he did the cooking.

The 10th Respondent said that he had gone to the school to visit his relatives and drink grog and that he had gone there on 26th July 2000. He said the leader of the group was George Speight and that the purpose of the gathering was "to await the ceremony of qusi ni loaloa" after the staging of the coup. He said he had also visited the group at Parliament.

When he was charged he said he had been arrested at Kalabu "because of the unlawful assembly."

The evidence before the Chief Magistrate was that the group at Kalabu came from Parliament, and that others joined them at the school. The evidence was that some members of the group had intimidated some people in the neighbourhood into supplying food for the group. The evidence was that all the Respondents knew that the group at Kalabu had come from Parliament. Some Respondents said that they were there to support the "cause", others to take part in the "qusi ni loaloa" to thank those who had effected the coup. It was not suggested by the prosecution that the Respondents had done anything unlawful, other than to take part in an assembly which was unlawful. It was not suggested that they stole fish or groceries or shot anyone. A significant piece of evidence was that a submachine gun was found by the soldiers who raided the school.

The Chief Magistrate said that there was no case for the Respondents to answer because the prosecution failed to link the food stealing to the Respondents, and failed to prove that the Respondents intended to resist the appointment of an Interim Government. He declined to take judicial notice of the activities in Parliament and said at p.38:

"The prosecution also failed to offer any specific unlawful conduct, done by each of the accused individually, or as a group, that caused the neighbourhood to fear, that they will commit a breach of the peace."

For the reasons I now give, I am satisfied that the Chief Magistrate erred in making this finding.

An unlawful assembly becomes unlawful (even if the purpose of the assembly was originally lawful) when the persons assembled (not necessarily the accused persons as long as they were part of the assembly) conduct themselves in a manner that people in the neighbourhood will reasonably anticipate a breach of the peace. In the case of Abdul Sattar & Ram Gopal v Reg [1960-61] 7 FLR 14, Lowe CJ said that an unlawful assembly charge has the following elements:

(a) That three or more persons assembled;

(b) That they assembled to carry out a common purpose;

(c) That the persons assembled conducted themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that they would commit a breach of the peace; or, that persons in the neighbourhood are caused reasonably to fear that the persons assembled will, by such assembly, needlessly and without reasonable occasion, provoke other persons to commit a breach of the peace.

Abdul Sattar was a case of riot, but in order to prove a riot, the prosecution has first to prove an unlawful assembly. It was also held in that case, that:

"...under the law as at present in force in Fiji, if evidence shows that events took place which, of their very nature, must have put people in fear or terror it is not only superfluous but also unnecessary to call direct evidence of the fact of a natural consequence of those events so far as fear in or terror of the public is concerned."

In Ratu Osea Gavidi & Others Lautoka Supreme Court Crim. App. No. 11 of 1982, Williams J, in considering whether an assembly of landowners at the Fiji Pine Commission was unlawful, declined to take judicial notice of the fact that the landowners had unlawfully blocked roads to forests and had tried to intimidate the government by violence. At page 4 of his judgment, his Lordship said:

"The wording of section 86 clearly demonstrates that instances of unlawful behaviour or unruly behaviour threatening the peace should be alleged and proved so as to show in the words of the section that members of the assembly did "conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear...."

Although the Chief Magistrate relied heavily on this decision, I do not think that it helped the defence. The prosecution did lead evidence of unlawful activities of some members of the group. Firstly there was evidence that some members of the group stole fish from two separate fish sellers at the Laqere Bridge. Secondly there was evidence that 80 to 90 members of the group (a large number by any standards) stood outside a grocer's shop while four of the group threatened the grocer and forced him to deliver groceries free of charge to the school. Thirdly there was the evidence that the group at the Kalabu Fijian School was armed with a submachine gun. Even if the evidence that the group came from Parliament, and were led by Ligairi and Speight, was ignored, there was ample evidence that some members of the assembly were in fact acting unlawfully and in a way which actually caused people to be afraid for their safety. It is logical, given the very public position of the Laqere Bridge and the large numbers of people gathered at the school and on the buses on the way to the school, that persons in the neighbourhood would be reasonably in fear that breaches of the peace would occur.

It does not matter that the common purpose was the holding of Fijian ceremonies. It does not matter that the Respondents themselves did not steal fish or groceries or shoot anyone with the submachine gun. What matters is that there was evidence that they were part of the group from which other members behaved in this way, and that their conduct led people in the neighbourhood to fear breaches of the peace.

In the well-known case of Caird & Others v R (1970) 54 Cr. App. R. 499, a case of a riotous assembly at the Gordon House Hotel in Cambridge, it was held that where persons in a crowd, however peaceful their original intention, start to act in a way that causes reasonable citizens to fear a breach of the peace, the assembly becomes unlawful. Any person who actively promotes or encourages an unlawful assembly is guilty of an offence, and any person who participates in it. As Sachs LJ said at p.505:

"It is the law - and, indeed, in common sense it should be the case - that any person who actively encourages or promotes an unlawful assembly or riot, whether by words, by signs or by actions, or who participates in it, is guilty of an offence which derives its great gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose."

As to the evidence that the group came from Parliament, and that they were at the school to support George Speight and indigenous rights, a judge or magistrate is entitled to use general information and general knowledge of the common affairs of life which men of ordinary intelligence possess, but they may not act on their personal or private knowledge (Ingram v Percival (1969) 1QB 548). The sort of information which they have accepted without hearing evidence of it, was that certain parts of the town are frequented by prostitutes (Paul v DPP 90 Cr. App. R 173) and that an area is heavily populated. The High Court, in Chandrika Prasad v The Republic of Fiji Civil Act. No. 217/2000, took judicial notice of the fact that on the 19th of May there was an armed invasion of the Parliament which resulted in the then Prime Minister, members of the Cabinet and other members of Parliament being taken hostage. There was evidence led as to this takeover, led by "George Speight and his supporters" in the Court of Appeal (Civil Appeal No. ABU0078 of 2000S) and the fact of the takeover and the hostage situation in Parliament has now been the subject of judicial acceptance in several cases in the High Court. Although I doubt that details of the takeover, or the personnel involved could be the subject of judicial notice, the facts of the takeover and of the hostage crisis leading to an emergency law and order situation in Fiji are now clearly notorious facts on which the courts have relied in the last year. In that sense, I do not think that Ratu Osea Gavidi & Others assists. There can be no comparison between the armed takeover of Parliament in 2000, and the landowners dispute with the Fiji Pine Commission in 1981.

For these reasons the Chief Magistrate could also, in considering whether members of the group had conducted themselves so as to cause fear of breaches of the peace, have considered that the Kalabu Group came from the Speight group in Parliament and were linked to the armed takeover of Parliament. There could be no better evidence of the third ingredient of Unlawful Assembly.

I find therefore that the Chief Magistrate erred in failing to consider the evidence of "reasonable fear of breach of the peace." This ground is upheld.

Ground (c)
I have dealt with the relevance of Ratu Osea Gavidi (supra) and Abdul Sattar & Ram Gopal (supra) under Ground (b). I uphold this ground.

Ground (d)
Was there therefore a case to answer? The learned Chief Magistrate correctly directed himself on the test at the end of the prosecution case, referring to Moidean v R [1976] 22 FLR 206. The test is whether on the evidence led, a reasonable tribunal could convict. In considering this question, the court must consider whether the evidence was so unreliable that no reasonable court could convict upon it.

However having correctly referred to the test at the end of the prosecution case, the Chief Magistrate then erred in applying it to the facts of the case, and the law on Unlawful Assembly.

There was no dispute that the Respondents were part of a group of three or more persons. The evidence of Ratu Inoke Takiveikata was that they were all for a common purpose, to thank Speight's supporters for supporting him. This is supported by the admissions of some of the Respondents. Most of the Respondents admitted that they took part in the assembly, knowing that the group was linked to Speight and the takeover at Parliament.

Of course the common purpose alleged by the prosecution was different. They alleged that the purpose of the gathering was to create instability should the membership of the Interim Government not be satisfactory from the point of view of those assembled. No such evidence was forthcoming in the course of the prosecution case.

However the prosecution did show that there was a common purpose and exactly what that purpose was, is not necessary for proof of the offence as long as there was a common purpose. The failure to prove the common purpose alleged, should have led to amendment of the charge under section 214 of the Criminal Procedure Code. That section provides:

"(1) Where, at any stage of the trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case."

The section states that it is the court's duty to order amendment to meet the circumstances of the case, and that duty arises whether or not an application for amendment is made by either prosecution or defence. In this case, no such amendment was ordered when it became apparent that the common purpose was in fact to conduct Fijian ceremonies in relation to the takeover of Parliament. Now that the prosecution case is closed, no such amendment can be made.

However, for the purpose of the offence, what the common purpose was, is not an essential element of the offence. It is enough that there was a common purpose. From the evidence of the Qaranivalu, it is clear that there was a common purpose. Thus the reference to causing instability in the charge is really superfluous to the charge. It does not render the charge defective, and has not led to prejudice in the conduct of the defence.

As to the third ingredient, that some members of the group behaved in a way that caused the people in the neighbourhood to fear breaches of the peace, as I have already said, there was ample evidence of that. Further the link with the group in Parliament and the evidence of the large numbers of people gathered would cause any court to draw inferences of fear of breaches of the peace. There was evidence that each Respondent participated in this large group of Speight-linked people. For the 4th Respondent who made no admissions, an inference that he knowingly participated in the assembly, can be drawn from the circumstances of the case, including the evidence that the group came from Parliament and had assembled in large numbers.

There was ample evidence on all elements of the offence which might lead a reasonable tribunal to convict each of the Respondents. In upholding the defence submission that there was no case for the Respondents to answer, the Chief Magistrate was in error.

This ground is also upheld.

Conclusion
Grounds (b), (c) and (d) of the Petition of Appeal are successful. The finding of no case to answer is quashed and substituted with a finding that there is a case to answer. This matter is remitted to the Chief Magistrate to continue with the trial and to put the Respondents to their Defence.

Appeal allowed.

Marie Chan