Bolatakeu v Reginam [1978] FJSC 149; Criminal Appeal 123 of 1977 (27 January 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 123 of 1977

BETWEEN:

JOSEVATA BOLATAKEU

AND:

REGINAM

JUDGMENT

The appellant, who is on bail, appeals against his conviction by Suva Magistrate Court on the 3rd October 1977 of conspiracy to pervert the course of justice, contrary to section 123(a) of the Penal Code; the material particulars of offence being that on the 16th June 1976 in his capacity as Assistant Principal of Lami High School he conspired together with Mosese Uluinavitilevu to pervert the course of justice by calling on two students of the school to write letters retracting statements earlier given to the police.

The essential ingredient of conspiracy is one common design. To quote Brett, J. in R. v. Aspinall [1876] UKLawRpKQB 104; (1876) 2 Q.B.D. 48 at 58: "...the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence that any one thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete; it was completed when they agreed."

Yet in many cases there are no means of proving directly that the parties did come together and actually agree in terms to have a common unlawful design and to pursue it by common means; and neither law nor common sense requires such proof (Reg. v. Murphy & Anor.[1837] EngR 1120; (1837) 173 E.R. 502 at 508). As Erle J. pointed out in Reg. v. Duffield & Ors. (1851) 5 Cox C.C. 404 at 434: "...it does not happen once in a thousand times, when the offence of conspiracy is tried, that anybody comes before the jury to say - "I was present at the time when these parties did conspire together, and when they agreed to carry out their unlawful purposes"." In the absence direct evidence, a conspiracy can be inferred from the conduct of the parties alleged to have conspired, from their subsequent overt acts, and from other relevant circumstantial evidence incompatible with their innocence and incapable of explanation upon any other reasonable hypothesis than that of their guilt (Wills On Circumstantial Evidence, 7th Edition, p.19). However a mere aggregation of separate facts, all of which are inconclusive in that they are as consistent with innocence as with guilt, have no probative force.

The relevant facts of the instant case as found by the trial Magistrate are as follows:

(a) On the 16th June 1976, the Principal of Lami High School Mosese Uluinavitilevu (hereinafter referred to as Mosese), was interdicted because of allegations of improper conduct on his part with two male pupils (the first and second prosecution witnesses).

(b) Shortly thereafter Mosese approached the appellant, the Vice Principal of Lami High School and from the time of the interdiction of Mosese effectively the Acting Principal, with a view to speaking to the two pupils.

(c) Later the same morning Mosese did speak to the two pupils in a room at the school and, in effect, asked each of them to write a letter retracting a statement he had made to the police in which he complained of the improper conduct of Mosese. The appellant was present but said nothing whatsoever to the pupils.

(d) Mosese first spoke to the second prosecution witness, and after he had left the room the first prosecution witness was called in.

(e) At some stage, a teacher at Lami High School who was also a special constable (the third prosecution witness), entered the room and told Mosese that the pupil in question was a witness and if they were trying to intimidate him it was an offence. (Although the trial Magistrate made no specific finding on the point, the intervention by the third prosecution witness appears to have occurred shortly before the second prosecution witness left the room and before the first prosecution witness was called in, although the second prosecution witness stated in evidence that nobody came into the room while Mosese was talking to him).

(f) On the following day the appellant was interviewed by an Assistant Superintendent of Police in connection with a police investigation into the complaints made against Mosese of his improper conduct with the two pupils, during the course of which the appellant did not tell the truth in that he claimed that on the previous day Mosese had not spoken to the two pupils in his presence but that he the appellant had asked them what their police statements contained.

(g) At his trial the appellant was not frank in that he denied that there was any suggestion by Mosese in his presence and hearing that the pupils write letters retracting their police statements, claimed not to have known at that time that the pupils had made police statements, and denied that the third prosecution witness, when he entered the room in which the pupils were being interviewed, had given any warning about interfering with witnesses.

It was necessary also for the trial Magistrate to give consideration to the appellant's uncontested evidence that it was the appellant who had reported the allegations against Mosese to the Permanent Secretary for Education in the first place, which led to the interdiction of Mosese on the 16th of June; and that the appellant in his capacity as Acting Principal of Lami High School had insisted on being present when Mosese spoke to the two pupils, apparently to protect them from any form of undue pressure.

The question for the trial Magistrate was whether an irresistible conclusion could be drawn from the facts which allowed of no other reasonable hypothesis than that when Mosese asked the students to write letters retracting their police statements he was acting in concert with the appellant in pursuance of a criminal purpose held in common between them, so that the acts of Mosese became the acts of both.

Although in his judgment the trial Magistrate initially directed himself correctly on the ingredients of conspiracy, a subsequent and quite substantial portion of his judgment was taken up with an irrelevant discussion as to whether or not the appellant was aiding and abetting Mosese. The trial Magistrate may have been led into this digression by prosecuting counsel's reference in his closing submissions to section 21 of the penal Code, which has no bearing on the matter.

Thereafter the trial Magistrate stated:

"It is particularly important to note that although P.W.3 told Mosese and [the appellant] not to interfere with witnesses the meeting continued and P.W.1 was later called in notwithstanding P.W.3's warning. At that stage, if not before, [he appellant] was well aware of what could, or would be the legal consequences of asking each boy to retract yet he did not intervene and cry halt. This failure to do so can indicate only either one of two things:

(a) He had previously agreed to what was being done or

(b) He, at a certain stage, decided to condone it and joined in so as to confirm a conspiracy towards that end."

However the trial Magistrate did not proceed to make a finding as to whether the appellant had previously agreed to what was being done, or whether at a later stage he joined in so as to confirm the conspiracy; and where there is no direct evidence of an agreement to do an unlawful act and it has to be deduced from subsequent overt acts of the accused, it is not enough for a certain set of circumstances merely to "indicate" or suggest a conspiracy.

At the conclusion of his judgment the trial Magistrate made only three specific findings:

(a) [The appellant] materially assisted Mosese in calling on two students to retract statements made to the police.

(b) [The appellant] told lies in relation to the conduct of Mosese in so calling on the students (i.e. the role played by Mosese) and

(c) [The appellant] was aware that the conducting of a meeting for the purpose of calling on the students to retract was unlawful.

It may be that the unfortunate introduction into the case of propositions pertinent to an offence of aiding and abetting gave rise to some confusion and led to the trial Magistrate's finding that the appellant "materially assisted" Mosese. Be that as it may, there was no evidence to justify such a finding.

As to the finding that the appellant was aware that conducting a meeting for the purpose of calling on the students to retract was unlawful, what the trial Magistrate had to decide was not whether the appellant was aware that it was unlawful, ignorance of the criminal law being no defence, but whether in attendant the meeting he was acting in concert with Mosese in pursuance of a common design to call on the students to retract their police statements.

In the particular circumstances of this case I am not satisfied that the trial Magistrate properly directed himself as to the inferences to be drawn from the proven facts and I do not consider that it would be safe for the conviction to stand. This is not intended as a criticism, for as Lord Hewart C.J. has pointed out, conspiracy is "a difficult branch of the law, difficult in itself, and sometimes even more difficult in its application to particular facts or allegations" (R. v. Meyrick & Ribuffi (1929) 21 Cr. App. R. 94 at 99).

The conviction is quashed and the sentence set aside.

(CLIFFORD H. GRANT)
CHIEF JUSTICE

Suva,
27th January 1978.