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Magistrates Court of Fiji |
IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA
Criminal Case No. 1932 of 2001
STATE
V
TEVITA VAKAYARUTABUA QAUQAU BUKARAU
METUISELA MUA
RUSIATE KOROVUSERE
VILIAME SAUSAUWAI
ERONI LEWAQAI
JOJI BAKOSO
Prosecution: Mr W Kurisaqila
Mr A R Singh
Defence: Mr Rabo Matabalavu
JUDGMENT
There are six accused in this case. They have been charged with the following offences:
COUNT 1:
Consorting with people carrying firearms: Contrary to section 10 (1) and 25 of the Emergency Decree No. 4 of 2000.
PARTICULARS OF OFFENCE
Tevita Vakayarutabua Qauqau Bukarau, Metuisela Mua, Rusiate Korovusere, Viliame Sausauwai and Joji Bakoso and each of them between the 19th May, 2000 and 15th July, 2000 at Suva in the Central division consorted with another person or found in company of persons carrying or possessing arms without lawful excuse in circumstances raising a reasonable presumption that such other or others intended to or were about to or had recently acted therewith in a manner prejudicial to public security.
COUNT 2:
Unlawful Assembly: Contrary to Section 86 and 87 of the Penal Code Cap 17.
PARTICULARS OF OFFENCE
Tevita Vakayarutabua Qauqau Bukarau, Metuisela Mua, Viliame Sausauwai, Eroni Lewaqai and Joji Bakoso and others between 19th day of May and 18th day of July 2000, being assembled at parliament Complex in Suva in the Central Division, with intent to carry out a common purpose, conducted themselves in a manner as to cause the persons in the neighbourhood reasonably to fear that the aforesaid Tevita Vakayarutabua Qauqau Bukarau, Metuisela Mua, Viliame Sausauwai, Eroni Lewaqai and Joji Bakoso and others will commit a breach of the peace.
COUNT 3:
Unlawful Assembly: Contrary to Section 86 and 87 of the Penal Code Cap 17.
PARTICULARS OF OFFENCE
Tevita Vakayarutabua Qauqau Bukarau, Metuisela Mua and others between 19th day of May and 27th day of July 2000, being assembled at Kalabo primary School in the Central Division, with intent to carry out a common purpose, conducted themselves in a manner as to cause the persons in the neighbourhood reasonably to fear that the aforesaid Tevita Vakayarutabua Qauqau Bukarau, Metuisela Mua, and others will commit a breach of the peace.
At the close of Prosecution case I found no prima facie evidence against accused (3) Rusiate Korovusere in count 1 and acquitted him of the charge. The five other accused were called to their defence in the 3 counts.
The prosecution called 17 witnesses whilst the accused elected to give un-sworn statements and called three witnesses who gave sworn evidence.
PROSECUTION CASE
On 19th May 2000 there was an armed take over of the Fiji Parliament. George Speight was their leader together with his group which included civilians and some soldiers. They fired shots and took the members of Parliament hostage. Some Government members were handcuffed and asked to kneel down on the floor. They were kept in parliamentary chambers. There was restriction of movement and armed guards were in and around the parliamentary precincts. Television and media coverage showed the extent of arms and people involved.
Regular meetings were held between Speight group and the army where defendants took part. Defendants were people in control with Speight. Public were invited to visit the complex to show support for the Speight and his rebel group.
There was deterioration of law and order. The whole neighbourhood was in a state of chaos due to large number of people in parliament who looted and made nuisance of themselves in and outside the precincts of the parliament. There was handing over of arms by Speight and his group to the army in parliament after reaching an accord between Fiji Military Forces and George Speight group.
After 56 days, the supporters left to go to the Kalabo Fijian School for a thanks giving ceremony, they called ‘Qusi ni loaloa’; conducted to thank the Speight supporters in parliament. They went in Dee Cees buses. They were in large numbers. On the way they stole and created fear and disturbance in the neighbourhood. The defendants were part of the George Speight group. The Military and police had to carry out mopping up operation in order to bring about control of the situations created both around parliament and the Kalabo School.
The incidents related to the overthrow of a democratically elected Government. The defendants were charged, as a consequence for consorting with people Carrying Firearms and Unlawful Assembly.
DEFENCE CASE
The defendants do not dispute the salient facts of this case. However, they deny any involvement or association with anyone carrying guns. They also deny having any association between themselves or taking part in any assembly. They each gave un-sworn statements which I have summarized hereafter under evidence. The learned defence counsel further submits as follows:
On Unlawful Assembly he submits:
Viz: A1 - Advisor
A2 - No role
A4 - Doctor
A5 - just there
A6 - No role.
He submits these tapes are unreliable as its authorship is in doubt.
LAW & ISSUES
On consorting: 10 and 25 of the emergency Decree 4 of 2000
10
(1) Any person who consorts with or is found in the company of another person who is carrying or who has in his possession any arm, ammunition or explosive, or any corrosive or inflammable substance, in contravention of section 9, in circumstances which raise reasonable presumption that he intends to do or is about to act with or has recently acted with such other person in a manner prejudicial to public security commits an offence.
(2) Any person who consorts with or is found in the company of a person who is carrying or has in his possession any arms, ammunition or explosives, or any corrosive or inflammable substances, in contravention of subsection (1) in circumstances which raise a reasonable presumption that he knew such other person had in his possession such arms, ammunition or explosives, or such corrosive or inflammable substances, commits an offence.
(3) Where in any prosecution for an offence against of this section, it is established to the satisfaction of the court that the accused person was consorting with or was in the company of any person carrying or having possession of any arm, ammunition or explosive, or any corrosive or inflammable substance, it shall be presumed until the contrary is proved that such last mentioned person was carrying or was in possession of such arm, ammunition or explosives, or such corrosive or inflammable substance, in contravention of section 9.
On possession of Arms – Section 9
9
1) Any person who, without lawful excuse, the onus of proving which shall be upon him, carries or has in his possession or under his control –
2) Notwithstanding subsection (1), the head of the Military Government may by order in the Gazette prohibit in the Fiji Islands, or in any area of the Fiji Islands specified in the order, arm, ammunition, or explosive, or any corrosive or inflammable substance, which any person is permitted or licensed to carry under any written law. Any person who contravenes any such order shall be guilty of an offence
3) This section does not apply to any police officer, prisons officer or to any member of the Armed Forces, in the execution of his duty.
The operation of section 10 is dependent on proof of Section 9.
Under Section 10 (3) if court is satisfied that accused were consorting with or is found in company of person carrying or has in his possession arms, it shall be presumed that it was so in contravention of section 9 (unless contrary is proved).
The onus is on the defendants to rebut the presumption under Section 10(3) or to show it wasn’t ‘without lawful excuse’ under Section 9, would be of a lower standard on balance of probability – Queen –v- Petrie (1961) WLR 358 Daniel William Brown (1971) Crim. App Rep. 478
UNLAWFUL ASSEMBLY
Section 86 and 87 of the penal code: states the offence.
The case of Abdul Sattar & Ram Gopal –v- Queen 80 of 1959 lays down the elements of this offence.
d) The common purpose need not be that for which the persons originally assembled.
e) The common purpose can be implied from the actions of the assembly.
f) Fear by persons in neighbourhood can be implied by the nature of the assembly, its’ conduct, numbers and such relevant matters.
g) S86 of PC refers to persons who are in the neighbourhood and not to neighbouring residents.
h) Its’ unnecessary to call direct evidence of facts of natural consequence of events so far as fear in or terror to public is concerned.
i) In some cases fear or terror might not be a natural consequence of events and direct evidence would be required.
Chandrika Prasad –v- The Republic of Fiji Civil Action 217/00: In this famous constitutional case the High Court took Judicial Notice that on May 19th 2000 there was an armed invasion of the Fiji Parliament which resulted in the members being taken hostage by George Speight and his men.'
The learned defence counsel has submitted the Exhibits – Tapes and C.D. should not have been admitted in evidence as its authenticity is un-established and master tapes were not produced in court. Therefore it should not be relied upon. There is also uncertainty as to the dates and times when the footage was taken.
The relevant evidence on this point is of PW8 Tale Mo – the Archivist librarian, PW9, PW17 Trevor Whippy and PW18 Mesake Waqa.
I have carefully considered the defence submissions but reject the same. I find the authenticity of the tapes and the chain from the time the footage was taken by PW17 till produced in court to be complete and reliable.
Trevor Whippy has identified two tapes which were his footage as author out of 4 tapes marked for identification. I have admitted in evidence the two tapes only (Exhibit 2 a & b). The librarian explained how copies were made and dubbed from master tapes and kept by her. These tapes had her handwriting which she identified without difficulty
PW18 only copied the tapes on the C.D. for easy reference in court. It was both relevant and admissible evidence and the author gave oral evidence in court as to the events and the recordings he took. I have also relied on the following authorities:
In the case of Queen –v- Maqsud Ali and Ashiq Hussain (1966) 1QB 688 ‘a tape recording of conversation in Punjabi language of the defendants was admissible. Ordinary rules of relevance and admissibility applies.
Kajala –v- Noble (1982) 75 CR App. R 149 states "copies of tapes, C.D’s films, cassette etc are admissible without original.
Taylor –v- Chief Constable of Cheshire (1986) 1 WLR 1479 " if original or copies are unavailable, a witness can give evidence of what he saw on recording".
Goodway (1993) 4 All ER 894: Lies by accused: if lie is deliberate and told to conceal guilt by accused, it could support the Prosecution case.
CONTRADICTION IN EVIDENCE:
All evidence has been weighed and evaluated by court at the end of trial and all witnesses have been considered in analysis to see if contradictions were major going to the main issues or minor in order to conclude whether to accept or reject their evidence – Salik Ram –v- R Cr Appeal, 7 of 1969 F.C.A.
The defence have suggested the evidence of PW11 Sefanaia Bilivalu and PW17 Trevor Whippy should not be accepted as reliable or they both remained in parliament throughout the period. Also by cross-examination of these witness the defence appeared to impliedly raise as follows:-
Accomplice evidence – since both were present in parliamentary complex and PW11 was acting to convey messages to Speight group and helped in conveying the executive committee decisions, was therefore an accomplice who participated in the crime. I have considered the evidence and where appropriate warned myself against acting on uncorroborated evidence.
Makanjoula (1995) 1WLR 1348.
Impugned Witness
Since the witnesses were subjected to control and in a state of shock by the actions of Speight group; they had some grudge and so their evidence would be impugned and against the accused.
I have also warned myself on such evidence and considered the implications raised by defence in cross-examination in deciding whether to accept or reject the evidence as suspect.
I have found both PW11 and PW17 to be reliable witnesses who related to court what they recalled during their presence at the events. Their evidence was well supported by other witnesses and the footage in parliament taken by PW17 Trevor Whippy.
IDENTIFICATION
In cross-examination the learned defence counsel questioned the credibility of prosecution’s identification. All witnesses have identified and named different accused persons’ being present in parliament and some at Kalabo Fijian School in evidence. Some witnesses were related to accused as seen in evidence. The defendants did not deny their presence at the events. I accept that the accused have been properly identified by all prosecution witnesses and accept their evidence as reliable and credible.
THE EVIDENCE
The prosecution called Leo Smith, a member of parliament. He described how George Speight and armed men stormed parliament and kept them hostage. He saw guards carry weapons such as rifles and machine guns. He also noticed about 100 civilians being trained in parliament compound in Karate and drills after 2 weeks in captivity.
He saw accused 1 (Tevita Bukarau) and Accused 2 (Metuisela Mua) attend meetings where George Speight, Sam Speight, Leweniqila and Vunibobo were present. He was detained in parliament for 56 days from May till July.
(PW2) William Aull an Engineer and member of Parliament. He confirmed how George Speight and his gunmen entered and took over parliament on 19th May 2000. He saw accused 1, 2, 5 and 6 hanging around parliament for the 56 days he was a hostage.
(PW3) Sainimili Cabilati, a police woman with 13 years service gave evidence. She saw guards with guns at the gates and fence. They were in civilian clothes. She went to the operation centre of parliament and saw Speight and men operating from there. She saw accused 5 Lewaqai - said her cousin sister is married to him. She had seen accused (2) Mua in a meeting. She saw him together with George Speight’s father and brother. She also saw A1 and A6 together with Mua in the parliamentary complex.
She also saw A6 Bakoso in mid corridors of parliament. She saw A1, A2 A5, & A6 in parliament.
She noticed a series of meetings with Speight and group. She noticed A1 & A2 come out of meetings held by Speight and groups. She also saw A5 – Eroni Lewaqai on Saturday when he came to be sworn in as ‘Assistant Minister for Rural and Urban Developments’. She had a chat to A5 and he informed her he was there to be sworn in.
She also noticed media was present and took pictures. (PW4) Alipate Lee owns a construction supplies business. He was called by A2 Mua and given a job to construct temporary shelters at parliament house. He was given $2000 deposit by A2 which he collected at the parliament gate. Mua gave him money and instructions about the erection of shed. His contract was for $4,000. he saw people around parliament with guns and dressed in civilian clothes. Corporal (PW5) Sitireki Nasilivata, a 22 years army officer checkpoint as section commander at Suva Grammer School. On Saturday 27th May about 5.30 am. He saw a crowd of about 400 marching from parliament towards the checkpoint. They tried to pull the army rifles. Tikotani from the crowd was known to this witness as a fellow villager. He instructed to stop shooting but he fired (M16) shots towards his right side.
He recalls the crowd yelling and swearing abuses. These men were shot in shoulder, ankle and a British journalist was injured as a consequence.
A police officer (PW6) Corp. Manik Chand 22 years service recalls being on duty during 2000 takeover of parliament. He was on duty at Ratu Sukuna Road and Dancun Road junction. Saw a crowd of 150 marching. They carried things similar to rifles. The crowd was unruly and went towards Domain Road.
He heard gunshots from the direction where the crowd had gone. He later saw 2 people jump off the tray of a twin cab with rifles. They shot at police vehicles. They took shelter in a near by pastor’s house in fear and remained there for about 45 minutes for personal safety.
Corporal (PW7) Seini Vola a 15 years police officer gave evidence. There was increase in crime in and around the Veiuto, Maunikau and Nasese areas. Suspects were from parliamentary complex. Break ins were too frequent. In cross examination he said he couldn’t produce records of reports but he advised people to take best option for their safety at the time.
PW8 was the Fiji TV. news archivist Tale Mo. She got the tapes which covered the May 2000 events in parliament. She dubbed 21 master tapes from the camera footage and placed them in the library. She gave these later to police. She identified the tapes as it had her handwritten labels on them.
(PW 9) Masimeke a retired Journalist gave evidence of his interview of Accused 1 T. Bukarau in parliament. The interview was in Fijian language which he translated and transcribed into English language. He gave a copy of translation of his interview to police. It was signed by him and tendered as Exhibit 1. However, in court he was unsure if Accused one was the person he had interviewed as he looked smaller in 2000.
Savenaca Tale (PW10) said he saw men with guns he described as M16 in parliament. He saw A2 Mua coming out of opposition office and going into the Government offices. He said his access was restricted. He was not permitted to go from Bure to Government office or chambers. He noticed the hostages (Indians) were kept in conference room on ground floor of Government offices and Fijian members were kept in parliamentary chambers.
Sefenaia Vilibalu (PW11) a retired station control supervisor with FEA gave evidence. He visited parliament. He told security he was not happy with the existing Government of the day and was allowed inside.
He saw Speight, Cuvulodo, Tevita Bukarau (A1) having meeting with Army officers. He also saw A5. He saw dispensing panadols to men in parliament. He said he acted as liaison between the Speight committees meetings conveying messages to the people gathered. His contact in committee was A1 – Tevita Bukarau. The accused were executive committee of George Speight.
He saw armed guards around and was not free to move around. He identified accused 1, 2, 5 and part of the committee having meetings with George Speight. After parliament he went to Kalabo Fijian School. There was a celebration ceremony called "qusi ni loaloa". It was victory celebration to thank the supporters of George Speight and his Indigenous cause.
He saw A5 – Eroni Lewaqai for 2 days and also A2 – Mua at Kalabo School gate. In cross-examination he was called by the learned defence counsel as follows:
Q: You were becoming to be a prominent person which was to forward the indigenous course, you wanted a ministerial position in the Speight Government?
A: No.
Q: You lied about being in parliament till July?
A: Prosecution didn’t ask me if I returned home or not. My visit was from 25/5 to July. I was visiting as Indigenous Fijian. I was supporter of the Indigenous cause.
He said the CRW soldiers stormed parliament to bring control.
PW12 was Nilesh Chand 24 years, who was a fish vendor at Laqere market where the Dee Cees buses stopped before going to Kalabo Road. On 19/7/00 people came out of the bus and took away his fish bundles. When he asked for money they said "do you want to die." They also stole from other stalls. He was frightened and went towards the back of stall for safety.
Viliame Momo a school teacher at Kalabo Fijian School was PW13. He taught class 8. Two boys came out to the office on 18/7/00. They occupied the classrooms. On 19/7/00 Dee Cees buses came up from Kalabo Road to the school. The passengers got off and billeted at the school. They were from parliament and occupied all 16 rooms at the school.
The 14th prosecution witness was Tomasi Qilia a baker. He went to the parliament on 23/5/00 on invitation of his cousin, Baledrokadroka. He saw many people including A1, A2, and A4 whom he knew from before. Guards at parliament were armed. He saw George Speight and Jim Speight. He couldn’t identify any accused with Speight specifically but he saw the accused met with Speight during meetings. He saw them met 3 times in the 3 days he was in parliament. He saw George Speight’s guards carried guns. He said accused 4 Dr. Sausauwai attended to the sick and attended all meetings.
Serema, a house wife of Kalabo gave evidence as PW15. Her house was directly opposite the school. She saw people come to school before soldiers did. She lived with her 2 sons without her husband. She felt very unsafe in the house being alone. She was scared of the happenings at the school.
(PW16) Abdul Aiyub of Pilling Road (which is in Kalabo School vicinity) said he was frightened of people gathering at Kalabo Fijian School. He was frightened and stayed in doors most of the time at the beginning of the event.
Trevor Whippy a cameraman employed by the Fiji Television (PW17) during the 2000 coup. He explained how he uses his camera which records the images on tape. This tape is handed to the producer. The reporters use it for new purposes. The tapes are than, handed to the library. In this case PW8 who is the librarian at News Archives. He identified the tapes MFI: 1 & 2 as his footage. (Exhibit 2 a & b). He also described the scene at parliament during 19th May 2000. He saw guards with weapons. He saw shot fired and guard stopping Paul Manueli from leaving the premises. He went into conference with Speight. He was afraid to be there until provided security by Speight as a cameraman. His office was destroyed after the initial coverage was played.
He saw A2 and 5 sitting behind Speight during press conference. He saw Accused 1 walk beside Speight whilst he met his supporters. He was scared and feared his safety on first d ay till he got security from Speight. He was at the premises from 19/5/00 till July 2000 on most of the days.
He identified the pictures on CD as taken by him on tape.
The final witness was Mesake Waqa (PW18) of Police task force who recorded the footage of Trevor Whippy from the tape into a CD for easy reference for the trial. The tapes were seized from Fiji TV. Archives by a member of his team.
THE DEFENCE EVIDENCE.
All accused gave un-sworn statements.
(A1) TEVITA BUKARAU said he was there in an advisory capacity to resolve the crisis. The conferences resulted in the Manukau Accord ‘where weapons were returned to Army and parliament was cleared. He didn’t meet any of the accused except A2 and 3 whom he knew from before. He doesn’t know any co accused. He didn’t know of any arms found in parliament. He said his role as a practitioner was an intermediary with FMF and others to conclude an agreement.
(A2) Metuisela Mua said he didn’t take part in the May 19th takeover. He was not in parliament for the whole duration. He said his role was to restore law and order in parliament.
He said on 14/600 an assassination attempt was made on George Speight’s life. Speight asked him to brief him on progress of negotiations. He said he assisted in building shed for chiefs and also assisted in release of women hostages. He knew Accused 1 and 3 when in the army but did not meet any others.
(A4) Viliame Sausau
He attended the march which ended up in parliament. He doesn’t know anyone who was involved in takeover. He didn’t know about the dispensary but only helped daily. He said there were thousands of people in parliament daily. He doesn’t know any co-accused.
(A5) Eroni Lewaqai
He came to Suva on 19/5/00 from Sabeto for the march. He went to parliament upon learning of the takeover.
He never met any co-accused or talked to them. He doesn’t know about arms or people carrying arms in parliament. He didn’t associate with them.
A6 – Joji Bakoso on 19/5/00 he was driving to Suva from Nausori. He drove beside parliament. In June his province asked him to visit parliament. He went for half hour only. He never assembled or knew of arms. He was surprised when arrested at Kalabo. He didn’t see or meet any other accused.
Defence also called witnesses:
Arun Gautam an accounts clerk of Q B Bale & Associates for 10 years. Accused 1 works there as a Solicitor. He said on 19/5/00 around 9.30 – 10.30 am accused was with him discussing about debtors in the office.
A 1 asked them to go home as there was tension in town. Bukarau was in office about 11 am when the witness left to go home.
The second witness was Kelera, a clerk typist of Q B Bale, Solicitors. She left office on 19/5/00 about 11 am. Accused one she saw was still in office from 8.30 am till 11 am that day.
The 3rd defence witness was Semi Voliti employed by Q B Bale solicitors since 1987. He said A1 was in office on day of march. He heard Bukarau (A1) tell other staff to go home. Some friends of Bukarau came to the office. This witness and A1 left office about 6 pm. He said he stayed back to drink grog from 11am till 6 pm. He said Major Lomaloma of FMF was there but was told by A1 to go back to the camp and he left.
FACTS
The Fiji parliament whilst in session on 19th May 2000 was stormed into by leader George Speight and his armed gunmen. George Speight removed the speaker. Gun shots were fired. The speaker vacated his chair. Some Government and members of parliament were handcuffed and asked to kneel on floor of parliament. They were taken hostage and remained in parliamentary complex for 56 days. Fijian and Indian members were separated and kept in separate chambers. Their movement was restricted and guarded.
Armed guards were placed in and outside the precincts of parliament. The entry and exist was controlled by George Speight and his men who included civilians and some soldiers.
Press and media gave full coverage of the events. George Speight and his security chief Ligairi gave press security passes to enter and leave the gates. Speight called press conferences and repeated the objectives of the coup de – tat as assertion of Indigenous Fijian Supremacy (PW11 & 17) and Exhibits.)
Large number of supporters of Speight were invited to parliament. Many stayed in. Temporary sheds were erected to cater for the crowd. Regular meetings were held between Speight and his groups. Accused persons were seen in parliament and attending meetings of the Executive Committee of Speight (except for A6). The TV. coverage also showed accused around George Speight and his security chief. In a meeting on 20/5/00 George Speight abrogated the constitution. New Ministers were being sworn in.
The law and order situation deteriorated. There was widespread and unruly rampage around the parliamentary neighbourhood with suspects coming from the parliamentary complex. Marching in large crowd and some shooting incidents aroused a chaotic state of affairs in the area. The army was trying to bring situation under control by negotiations with Speight and group. The CRW soldiers conducted mopping operations. Finally, there was agreement to return arms and release hostages. The parliament was cleared in July 2000. The arms were displayed and returned to Army during a ceremony in parliament.
Around 19/7/00 groups of supporters of Speight left parliament to go to Kalabo Fijian School. It was for conducting a ceremony called ‘Qusi ni loaloa’ which was thanksgiving for the supporters of the Indigenous cause.
The supporters left parliament in Deecees buses. On their way at Laqere market they stole fish from a market vendor. There was fear and in security in the Kalabo School neighborhood. (PW 14, 15). There were 16 classrooms at school and all were occupied except for the office. (PW12 school teacher).
ANALYSIS AND FINDINGS
Did the accused consort with or is found in the company of another person who is carrying or has in his possession any arms or ammunitions?
The parliament was taken over unlawfully. George Speight was the leader with his gunmen. The entry and exit to parliament was restricted. A huge number of guns and ammunition were found in parliament which was returned by George Speight group to the Army.
Accused 1, 2, 4 and 5 attended meetings with Speight. Accused 6 was seen in corridors of parliament. At press conference A1, 2 and 5 were seen sitting behind Speight. A1 was seen talking to the George Speight’s Chief security advisor (Liqairi) in parliament.
The 5th accused was (Eroni Lewaqai) identified as nominee to be sworn in as Assistant Minister for urban and Rural Development. Each accused had different roles to play during the 56 days in parliament. I find they knew of the illegal takeover of parliament of George Speight’s and his men’s activities and had full knowledge of the guns and hostage situation during the duration of May 19th to July 2000.
The word "Consort" is described in the Oxford English Dictionary as "spend time with together, "associate with;" "be in harmony with - - -"
All accused were seen in parliament for the 56 days (PW2).
Accused 2 contracted to build shed at parliament for Speight and supporters. Although he said it was built for the chiefs, I do not accept his evidence as credible.
Accused 1 was walking along Speight as he shook hands with his supporters. (A1 says he was only present in his capacity as advisor since he is professionally a lawyer. He is shown on (Exhibit 2) behind Speight and also described by PW17, the cameraman. To a reasonable bystander, he would look more as a guide or a "lady/man in waiting" for Speight while he shook hands of support rather than a legal advisor. I find his explanation difficult to believe.
A1 also called witnesses from his law office who gave evidence on oath. They were his long standing staff. The accounts clerk and typist were in office till 11 am when they were asked by Accused 1 to leave as there was "tension in town."
The 3rd witness was Semi Voliti, who had worked in office since 1987. He stayed in office after everyone left at 11am. He said Bukarau (A1) was also there from 11 am till 6 pm when they both left. I give more weight and accept the evidence of prosecution witness 1, 2, 3 who were independent witnesses rather than the employees and friends of the 1st accused. He was in meetings and an executive member of committee releasing decisions taken in the Executive meetings to the supporters.
Accused 2 denied being in parliament for the whole duration. He said he was in parliament to resolve crises. He said he arranged for people to move out of parliament. Accused 4 denied any knowledge of the dispensary. He said he didn’t know any co-accused. Accused 5 – denied any knowledge of arms or people carrying arms in parliament. He admitted entering parliament after hearing of the takeover. He negotiated with army and passed briefs to Speight on Speight’s request after an alleged attempt on Speight’s life. He was also to be sworn in as one of Speight’s Ministers. In view of other evidence adduced, I find the accused persons explanations incredible and give little weight to it.
The sixth accused said only drove beside parliament on 19/5/00. In early June he said he only visited for half an hour. He never knew of any arms and was surprised to be arrested at Kalabo. His explanations appear superficial and cursorily was in parliament but arrested to his surprise at Kalabo. I find him to be telling lies in order to conceal the truth. If he was only in parliament for half an hour, it would have been difficult for witnesses (PW2, 3) to name him amongst such large gatherings over 56 days. Also to be arrested at kalabo indicates his association with the group.
I am satisfied that each of the accused consorted i.e. "spent time, associated" and were in harmony with the crowd and with George Speight. They were also in company of persons who were carrying or had possessions of arms and ammunitions unlawfully. They each had chores to carry out during the 56 days and attended the Speight Committee meetings as executives. Although some may have had a greater role to play such as accused 1, 2, 4 & 5 than accused 6. Nevertheless they were in company of Speight and his men.
Was it without lawful excuse?
Section 10(3) is a presumption once the court is satisfied that the accused persons consorted or were in company of person carrying arms; that they were doing so in contravention of Section 9 (unless contrary is proved).
Section 9 also puts the onus on the person carrying or in control to show it was not "without lawful excuse."
In Daniel David Brown Case (1971) Criminal Appeal report 478 there was a similar provision in prevention of Crimes Act 1963 which says "Any person who without lawful authority or reasonable excuse, the proof whereof shall be on him, has with him in any public place, any offensive weapon shall be guilty of an offence." The court said "once it’s proved to be an offensive weapon, the onus shifts to the person carrying to show he had lawful excuse. It is clear law that the accused has to satisfy only on balance of probability and not beyond reasonable doubt."
The defence submits that FMF either authorized or condoned the presence of arms and ammunitions. Since it was returned to FMF by the rebels it had given them "a lawful excuse" to be in "possession or _ _ under control."
George Speight group and his guards were armed inside parliament. They had just committed an illegal act of usurping the powers of a democratically elected Government. The arms belonged to the army and was returned to them by the Speight group. They were used and carried in places where it was not supposed to be.
These arms were not in the hands of those who were exempted class of people under Section 9 of the Decree. George Speight group and his guards were not police or prison officers or member of the armed force in execution of his duties. I also take judicial notice of the fact Speight and a group did not have arms and ammunition in parliament lawfully during the takeover.
The return of arms to FMF does not imply army’s authorization or condonation for its removal from FMF arsenals. Even if there were soldiers with Speight group, I do not find on evidence that they were in execution of their lawful duties. I find that they were in contravention of Section 9. They had the guns without lawful excuse. The defendants have not discharged the onus placed upon them on a lower standard nor had the presumption been rebutted.
Was it in circumstances which raise reasonable presumption that:
Accused intends to do or is about to act with, or has recently acted with such other person in a manner prejudicial to public security?
There is evidence of armed takeover on 19/5/00 which was an act prejudicial to the public security. The accused did mix with and attended meetings with Speight. There was civilians conducting drills and training in parliamentary complex (PW 1&2).
All accused were present in restricted areas in parliament. They were in the operations areas and in close proximity to Speight and his men. (PW1, 2, 3, 4, 11). A1 acted as a liaison between Speight’s Committee and the supporters gathered in parliament disseminating the decisions of the meetings (PW11). The shooting incidents and the hostage situation, increasing crime and hive of activity around parliament. A5’s presence to swear in as a minister in Speight’s Government. The footage taken by PW 17 Trevor Whippy.
A2’s negotiation and payment for shed builders at parliament. A4’s attendance of meetings and as Doctor attending to the sick; the operations of army and inadequate crowd control on public roads. General deteriorating law and order situation at the time, movement of crowd from parliament to Kalabo and the ensuing activities after takeover show circumstances which raise reasonable presumption that the accused persons intends to or is about to act with or has recently acted with George Speight and group in a manner prejudicial to public security.
I am aware that circumstantial evidence has to be closely examined before drawing inferences of accused’s guilt. Presumption is said to arise where from proof of some fact the existence of another fact may naturally be inferred without further proof. (Archibald 1141 p 775 40th Edt.).
However, this section states "raises a reasonable presumption _ _ _"
Each accused has given an explanation of his presence in parliament.
Accused 1 - Advisory capacity to resolve crises. He secured release of hostages and was intermediary between Speight and FMF.
Accused 2 - In parliament to resolve crisis. Negotiated with army. Attempt was made on life of Speight and he asked A2 to be his brief on progress.
Accused 4 - Didn’t know any thing. Only helped daily.
Accused 5 - doesn’t know of arms or people who carried them. Only entered parliament was a doctor.
Accused 6 - On May 19/5/00 came on a casual drive beside parliament. Didn’t assemble or knew of arms. Another day came to visit for half an hour.
These accused involvement and responsibilities undertaken and presence with Speight and group would raise a reasonable presumption about them and their actions.
From whole of the evidence adduced and exhibits tendered in court I am satisfied that there is circumstances which raise reasonable presumption about the accused as required. Their explanations in the unsworn statements have been considered but given little weight and rejected. They each would have noticed the guards and guns and would have had knowledge of the circumstances in existence at the time in Fiji. I also noted each of the accused persons demeanor during the trial. Whilst giving their un-sworn statements in court, none of the accused looked straight or had eye contact with the court which gave me the impression that they were not coming out with the whole truth.
I am satisfied that each element of the charge has been proven by Prosecution beyond reasonable doubt. I find that the accused 1, 2, 4, 5 and 6 are guilty of count one of the charge.
COUNT 2
Accused 1, 2, 4, 5 and 6 are charged with Unlawful Assembly.
Were there three or more persons?
There were three or more persons is not disputed; all accused were seen in parliament during the 56 days after the takeover. (PW1, 2, 3, 10, 16). They were part of a whole crowd of people who were in parliament at the time.
Did they assemble to carry out a common purpose?
These accused were all seen in meetings except for the 6th accused who was seen in parliament. The parliament was taken over by Speight and his armed gunmen for the objective to assert... Fijian Indigenous supremacy. PW11 said "supporters of the Indigenous cause" since they were not happy with the elected Government.
Also in Exhibit 2 – George Speight states his objective of the coup in press conference recorded by PW17 Trevor Whippy.
The accused as part of the executive committee met regularly in parliamentary offices. All accused were in close proximity to the George Speight and groups during the time. To gain entry and being present in parliament also indicated they were accepted as supporters of Speight and his course. (PW 1, 2, 3, 4, 10, 13.) Defence says each accused played a different role suggest "uncommon purpose". They may have different roles and responsibility but the ultimate purpose remained as common between all persons in parliament. (see Exhibit and PW11)
Did the persons assembled conduct themselves in a manner as to cause persons in the neighborhood reasonably to fear that they would commit a breach of the peace; or _ _? Huge crowd assembled in parliament where accused persons were also seen over the 56 days. Huge crowd and the hive of activity around the neighborhood in particular: (1) Shooting incidents which caused injury to journalist and soldiers at check points (PW5 – Nasilivata).
(2) Unruly crowd in large numbers from parliament at different times who confronted police and soldiers snatching rifles and their tents. (PW 4, 5, 6, 17).
(3) Increasing break-ins (with suspects from (parliament) in the area around parliament; forcing removal of residents from around the Veiuto Maunidau and Nasese areas. (PW6) Families lived in fear of locked houses (PW5).
The behaviour and conduct of the crowd which had assembled would have caused anyone in the neighbourhood to fear a breach of peace.
The defence submits the accused themselves were not all together in unlawful assembly at the complex during the time. The learned defence counsel says since they have been charged jointly as a group, proof of assembly is essential.
However the defence in his submission have agreed that analysis of Chief Justice Lowe, in the Appeal case of Abdul Sattar & Ram Gopal –v- Queen 80 of 1959 FLT 14 correctly lays down the elements of unlawful assembly. It also held;
"The common purpose need not be that for which the persons originally assembled. The common purpose can be implied from the actions of the assembly."
The accused persons have been identified by various witnesses at different times with the Speight group. People were frequenting parliament as supporters. The accused were having meetings and in harmony with the assembly inside parliament.
Even if they themselves did not commit the actions or conducted themselves unitedly with the actual events which caused persons in the neighbourhood reasonably to fear that they would commit a breach of peace; I find they were part of group that assembled with intent to carry out a common purpose and the conduct of the assembly was such that caused persons in the neighbourhood reasonably to fear breach of the peace.
The prosecution here has shown actual breaches visa viz ‘reasonable fear of breach’ as required by the sections. Judicial Notice is also taken of the events of May 19th coup and the hostage situation in parliament at the material time resulting in an emergency law and order crisis in Fiji.
High Court action of Chandrika Prasad –v- Republic of Fiji CA 217/00 and Appeal No. AB..... 78 of 2000S
I am satisfied the prosecution has proved each element of the second count and the accused are found guilty as charged.
COUNT 3
This count relates to unlawful assembly against accused one and two.
Were there 3 or more persons?
Only 2 persons are stated in the charge. Defence says it’s fatal. Evidence shows there was a hugh crowd. These came in buses from parliament and occupied 16 classrooms at the Kalabo Fijian School.
PW11 identified 3 accused (A1, 2, 5) at the school. Obviously the assembly consisted of 3 or more persons. However, A5 is not charged. A6 in his un-sworn statement also said he was surprised when arrested at Kalabo but he is not charged. I find there were 3 or more persons assembled at kalabo and the two charged were there as the charge says "and others" which is more then 3 or more persons.
COMMON PURPOSE.
There is evidence that the assembly at the school was for a victory celebration. It was called ‘qusi ni loaloa’ i.e. thanksgiving for the supporters of George Speight and his Indigenous cause. (PW11). (Sefenaia Bilivalu).
This constitutes a common purpose.
The conduct to cause persons in the neighbourhood reasonably to fear a breach of peace.
The prosecution led evidence of several Dee Cees buses coming to Kalabo School from Parliament at Laqere Bridge, fish was stolen from stalls by the members of this group. Fish vendor (PW 11) was intimidated and when he asked for money he was told "do you want to die". He moved away in fear.
PW12 Kalabo school teacher Viliame Momo "on 19/5/00 saw Dee Cees bus full come and billeted at school occupying 16 classrooms. They came from Parliament."
(PW 15) a shopkeeper at Pilling road near school was frightened of the group at school and stayed indoor inside his house most of the time.
PW 14 Saweri kadavu who lives opposite the Kalabo Fijian School saw people coming to school before soldiers came.
She felt insecure with her two children in absence of her husband’s presence in her house in view of the extensive activities at the school.
These people who gathered at the school were from the parliament. They were a large crowd and was public knowledge at the time in Fiji that t here was unlawful activities at the parliament. The conduct of the members, large numbers of people and the hive of activity at the school would cause persons in the Kalabo neighbourhood reasonably to fear that they would commit a breach of peace. Such fear at that time would be reasonable. There was a cause for alarm amongst people in the Kalabo neighbourhood. More so, when there was public knowledge at the time that the George Speight people from parliament had left Veiuto and come to Kalabo School.
I find the prosecution has proved all elements of the charge and the accused are found guilty as charged.
Dated this 27th day of April 2005.
Ajmal G. Khan
RESIDENT MAGISTRATE
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