Silatolu v State [2008] FJSC 48; CAV0002.2006 (29 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0002 OF 2006
(Fiji Court of Criminal Appeal AAU0024 of 2003S)

BETWEEN:

TIMOCI SILATOLU
First Petitioner

JOSEFA NATA
Second Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Friday, 22nd February 2008, Suva

Counsel: AK Singh for the First Petitioner
V Vosarogo for the Second Petitioner
A Prasad for the Respondent

Date of Judgment: Friday, 29th February 2008, Suva

JUDGMENT OF THE COURT

1. Following a long trial before Wilson J and 5 assessors, the petitioners were convicted of treason for their roles in the events at Parliament House on 19 May 2000 and the following days. The trial commenced on 26 November 2002 and concluded, with unanimous opinions of guilt from the assessors and a verdict of guilty from the judge, on 20 March 2003. The petitioners were sentenced to life imprisonment with fixed minimum terms of 9 and 7 years respectively.
   
2. Their appeals to the Court of Appeal were heard in February 2006 by the President, Tompkins and Wood JJA. Their appeals against conviction were dismissed but their appeals against sentence were allowed to the extent of substituting recommended minimum terms for the fixed terms imposed by Wilson J.
   

Grounds for special leave

3. The petitioners applied for special leave to appeal to this Court raising many grounds. Section 122(1) of the Constitution provides that the Supreme Court has jurisdiction "subject to such requirements as the Parliament prescribes" to hear and determine appeals from final judgments of the Court of Appeal. Section 7(2) of the Supreme Court Act provides that this Court must not grant special leave to appeal in a criminal case unless-
   

"(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justice is involved; or

(c) substantial and grave injustice may otherwise occur."

4. Having read the written submissions of the first petitioner, and the reasons for judgment of the Court of Appeal, we reached the firm conclusion that a number of the grounds could not possibly warrant the grant of special leave. These were the challenges to the selection of the assessors and to the summing up as a whole, and the petitioners’ reliance on the Immunity Decree made by the Military Commander on 9 July 2000. This purported to grant immunity from criminal prosecution to the members of the Taukei civilian group led by George Speight who took part in the unlawful takeover of Parliament and the Government and to others who acted under the directions or orders of George Speight or any member of the Taukei Civilian Government.
   
5. We heard counsel for the first petitioner briefly in respect of each of these grounds in case he had an argument in support of any of them which was not covered by his written submissions. When it became clear that he had no new argument the Court refused special leave on those grounds and counsel were invited to proceed on the others.
   

Summing up as a whole

6. The challenge to the summing up as a whole as too long, too discursive, and potentially confusing to the assessors was specific to this summing up, and did not raise any question of law or substantial question of principle, let alone one of general importance. While parts of the summing up were far from ideal there is no reason for thinking that the matters complained of under this ground caused any injustice to the petitioners.
   

Selection of the assessors

7. The selection of the assessors was challenged on the ground that the panel was not racially balanced and that a number of potential assessors had been excused after being interviewed by the judge in private chambers in the absence of counsel. It was not suggested that the procedures in the Criminal Procedure Code for the selection of the assessors were not followed.
   
8. Mr Ridgway, counsel for the State, and Mr Vuataki, then counsel for Mr Silatolu were in court on 27 June 2002 when the judge interviewed the potential assessors who sought to be excused. Ms Narayan, counsel for Mr Nata, was not present although she was aware that the matter was before the Court. The counsel present did not raise any objection to the procedure adopted by the judge.
   
9. On 22 July 2002 when the matter was again before the Court for pre-trial directions Mr McCoy QC, then leading counsel for the State, raised with the judge a potential problem created by the procedure adopted for excusing potential assessors (Vol 2/12 and ff). The judge said that the conversations in private chambers had been recorded (2/16) and the transcripts were made available to counsel (2/18).
   
10. After the luncheon adjournment Mr McCoy said in the presence of Mr Silatolu who was then unrepresented, and counsel for Mr Nata, that having seen the transcripts the "issue ... had completely fallen away". Neither Mr Silatolu nor counsel for Mr Nata challenged this statement (2/42).
    
11. The trial began on 26 November when the assessors were called and sworn without any objection from counsel for the petitioners (3/485). The assessors represented three of the communities in Fiji and the racial balance was obvious to all in Court. If any possible objection survived the proceedings on 22 July it was waived on 26 November. There is no reason for doubting the correctness of the decision of the Court of Appeal on this ground.
    
12. Immunity Decree
    
13. The Immunity Decree was made by the Military Commander but in the Republic of Fiji & Anor v Chandrika Prasad (ABU0078/2000S) the Court of Appeal held that the Constitution had not been abrogated by the events which followed the invasion of Parliament on 19 May 2000. Section 115(1) of the Constitution vests the prerogative of mercy, including the power to pardon, in the President, acting on the advice of the Commission on the Prerogative of Mercy (s 115(3)). The Commander had no power to make the Immunity Decree or pardon those involved in the Speight coup.
    

Special leave on these grounds refused

14. Although the procedure for selecting assessors for a criminal trial and the validity of the Immunity Decree raised questions of public importance, that is not enough. Special leave cannot be granted unless the decision of the Court of Appeal is also arguably wrong. This was the practice of the Privy Council: The Queen v Richards; Ex parte Fitzpatrick & Browne [1955] UKPCHCA 2; (1955) 92 CLR 171 (PC). We refused special leave because the decision of the Court of Appeal on these questions was clearly correct.
    
15. The remaining grounds on which special leave was sought were the challenge to the information on the ground that treason was not an offence known to the law of Fiji, the misdirection of the assessors on the corroboration of the evidence of the accomplice Mr Drole, and the alleged incompetence of the counsel who appeared for the first petitioner at the trial.
    

Treason in Fiji

16. The offence of treason was defined at the time by s 50 of the Penal Code in Pt II Div I of Ch VII under the heading "Treason and Other Offences Against the Sovereign’s Authority":
    

"50 Any person who compasses, imagines, invents, devises or intends any act, matter or theory, the compassing, imagining, inventing, devising or intending whereof is treason by the law of England for the time being in force, and expresses, utters or declares such compassing, imagining, inventing, devising or intending by publishing any printing or writing or by any overt acts or does any act which if done in England, would be deemed to be treason according to the law of England for the time being in force, is guilty of the offence termed treason and shall be sentenced to death."

17. The submission on behalf of the petitioners was that the offence of treason according to the law of England was focused on the protection of the Sovereign, his government and the Royal Family, and ceased to be applicable when Fiji became a republic after 1987.
    
18. The issue was raised before Wilson J on a motion to quash the information. On 26 March 2002 he held that treason was still an offence according to the law of Fiji and dismissed the motion. He summed up to the assessors in accordance with his ruling. The petitioners challenged both the ruling and the summing up on the law of treason but they were upheld by the Court of Appeal for the reasons given by the trial judge.
    
19. The definition of treason in the Act of 1351 was certainly focussed on the protection of the Sovereign and his immediate family but the Treason Act 1795 had a wider operation. It extended the crime to persons who:
    

"... levy War against his Majesty, his Heirs and Successors within this Realm, in order, ... to put any Force or Constraint upon, or to intimidate, or overawe both Houses, or either House of Parliament ..."

20. The seizure of Parliament by armed men and the detention of the Prime Minister, most of his Cabinet, and their supporters in the Parliament involved the levying of war within the meaning of the 1795 Act. The only question is whether those acts involved the levying of war against "His Majesty, his Heirs and Successors within this Realm" as they applied in Fiji.
    
21. These provisions continued to apply to Fiji after independence while it remained a Constitutional Monarchy. It is not at all clear that they would have continued to apply, without further legislation, once Fiji became a Republic. However it is not necessary to decide that question because there was further legislation.
    
22. The Interpretation (Amendment) Decree 1989 (the 1989 Decree) amended the Interpretation Act (Cap 7) by s 3(f) which provided:
    

"(f) where in any written law ... there is any reference to the Sovereign reigning at the time of the enactment or the making of the written law such reference shall be construed from ... as a reference to the ‘State’;"

23. "State" was defined in s 2(s) as meaning relevantly "the Republic of Fiji".
    
24. Earlier in 1987 the Fiji Existing Laws Decree (No 2 of 1987) came into force. Section 2(a) provided that with presently immaterial exceptions the existing laws in force immediately before 25 September 1987 "shall continue in force with such modifications, adaptations, qualifications and exceptions as may be necessary in view of the Fiji Constitution Revocation Decree 1987". An equivalent provision is found is s 29(1) of the Head of State and Executive Authority of Fiji Decree 1988.
    
25. Section 8(1) of the Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990 (the 1990 Decree) provided that existing laws shall have effect on and after the appointed day as if they had been made pursuant to the 1990 Constitution and "shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution", and an equivalent provision appeared in s 168 of that Constitution.
    
26. Finally the 1997 Constitution provided in s 195(2)(e) that despite the repeal of the 1990 Decree:
    

"(e) all written laws in force in the State [with presently irrelevant exceptions] continue in force as if enacted ... under ... this Constitution ..."

27. Section 195(3) provides that the written laws referred to in s 195(2)(e) "are to be construed ... with such modifications and qualifications as are necessary to bring them into conformity with the Constitution".
    
28. The definition of Sovereign in the 1989 Decree requires the Treason Act 1795 to be read, in its application to Fiji, so that levying war against the State within Fiji to put any Force or Constraint upon its Parliament is treason.
    
29. The word "Sovereign" in the heading to Ch VII of the Penal Code forms part of the statute for all purposes (Interpretation Act s 13). The 1989 Decree defined the "Sovereign" but not the expressions "the King", or "his Majesty" which appear in 1795 Act. However s 2(2) of the Interpretation Act provides:
    

"(2) Where any word or expression is defined in any written law, such definition shall extend, mutatis mutandis, to the grammatical variations and cognate expressions of such word or expression."

30. This provision authorises the interpretation of the expressions "the King" and "his Majesty" in the 1795 Act in accordance with the new definition of "Sovereign" in the 1989 Decree. This is an additional reason for concluding that it was treason within the meaning of s 50 of the Penal Code for persons "to levy war" against the State within Fiji to put any Force or Constraint on its Parliament.
    
31. The judge’s ruling on the motion to quash the information and his summing up to the assessors on the law of treason were therefore correct. Special leave should be granted on this ground but in that respect the appeals should be dismissed.
    

Corroboration of accomplice

32. Mr Drole was an important witness in the State’s case because he directly implicated both accused in the planning for the attack on Parliament. He also directly implicated Mr Silatolu in the delivery of the weapons used by the gunmen who invaded the Parliament some hours later, and in a phone call shown to have been made to George Speight a few minutes before the invasion took place.
    
33. Mr Drole himself was involved in the coup. He had been charged with treason but pleaded guilty to detaining the Prime Minister, members of his Cabinet, and other members of Parliament in the Parliamentary complex (5/1251) and had been sentenced to a term of imprisonment. Although he had not pleaded guilty to treason he was implicated in the offences with which the petitioners had been charged, and was relevantly an accomplice. His evidence had to be treated accordingly.
    
34. The judge, as required by law: Davies v DPP [1954] AC 378, 399 warned the assessors that it was dangerous to convict on the evidence of an accomplice unless it was corroborated (confirmed or supported) in a material particular by evidence from another source (8/2780).
    
35. The judge then correctly directed the assessors that corroboration is evidence from an independent source "which implicates the accused in the crime charged by tending to show that he participated in it" (8/2780). He then told them that two or more accomplices may corroborate one another. This was a misdirection because, as a general rule, persons who are implicated in the actual crime charged, as principals or accessories before or after the fact, are accomplices who cannot corroborate each other: Davies v DPP [1954] AC at 400; R v Hester [1973] AC 296, 325-6; R v Kilbourne [1973] AC 729, 747-8. That misdirection was prejudicial to the accused.
    
36. The judge then directed the assessors that the witnesses Viliame Savu and Salese Tuifagalele were accomplices of Mr Drole. This was another misdirection but one that was prejudicial to the State. Counsel for Mr Silatolu called Mr Savu (6/1811) and counsel for Mr Nata called Mr Tuifagalele (7/2227). Although Mr Savu was implicated in the overt acts of treason as an accessory before the fact, and Mr Tuifagalele was implicated in them as a principal, they were not accomplices whose evidence called for a special direction because they were called by the defence: Davies v DPP [1954] AC at 399.
    
37. Their evidence therefore was potentially capable of corroborating the evidence of Mr Drole and the judge’s errors in directing the assessors that one accomplice could corroborate another and that these two witnesses were accomplices who could corroborate Mr Drole became immaterial.
    
38. However there were further errors. The judge directed the assessors that evidence in the cross-examination of Mr Savu was capable in law of corroborating the evidence of Mr Drole (8/2780). It will be necessary to consider this question further. The evidence of Mr Savu in chief exculpated both accused but in cross-examination he admitted prior inconsistent statements to the police and at his trial, which implicated both accused.
    
39. The judge gave a general direction on the treatment of prior inconsistent statements (8/2705-6). He first said that if the two statements are inconsistent "that may help you, but it need not necessarily do so, to decide which of the two statements is true and correct" (8/2705). This was a misdirection because it invited the assessors to act on an out of court statement that had not been adopted by the witness in his sworn evidence. The judge then gave a correct direction (8/2706). He said:
    

"... a case must be decided by the evidence given on oath in Court. What a witness has said out of Court is not evidence in the case unless he ... has adopted it ... as his ...own evidence. If a witness affirms in the witness box something that he ... said outside the Courtroom on an earlier occasion, it thereby becomes evidence in the case.

... But, if it is established that a witness has said something outside this Courtroom which is inconsistent with his ... evidence in this Courtroom ... then, and only then, may you take the inconsistency into consideration when deciding whether to accept that witness’ evidence in Court.

... The important point to remember is that the out-of-Court statement is not evidence of the facts stated in it unless the witness affirms it in the witness box."

40. He returned to this topic later in his summing up (8/2781) when he said that evidence given by Mr Savu in cross examination was capable of corroborating the evidence of Mr Drole. The judge referred to Mr Savu’s inconsistent statements and continued:
    

"... you might remember that, yesterday I explained to you how inconsistent statements operate, and, if a person has made inconsistent statements, you can reach the conclusion that he couldn’t be relied on about anything, that may be your view with reference to ... Savu.

But, alternatively, you can, in relation to a witness who has given inconsistent statements, conclude that he was telling the truth the first time he made a statement ... it has been the prosecution’s contention, based upon the evidence ... given by Mr Savu, that the truth of the matter may be found in the earlier statements that he made when the facts were much fresher in his mind. Now, if that is the view you take ... then his evidence ... would operate to corroborate, support and confirm what Mr Drole said about the two accused ‘being present’."

41. This was a misdirection because, contrary to the direction he had given the day before, it invited the assessors to accept and act on the prior inconsistent statements made by the witness out of Court which he had not adopted in his sworn evidence in the trial.
    
42. Some of the evidence given by Mr Savu in cross examination might have been understood by the assessors as adopting what he said in his prior inconsistent statement to the police. He admitted that he earlier said that at a meeting at 2 pm on 18 May at which the Speight brothers and both accused were present, George Speight said that they planned to conduct a coup. He then gave this evidence (6/1824/5):
    

"Do you remember that? --- Yes.

And that is correct? --- Yes.

Yes. This is the meeting at 2 pm? --- Yes.

The one attended by Mr Silatolu and Mr Nata, among others? --- Well, before the ---

No, just "yes" or "no"? --- Yes.

Question 20:

The final briefing of Jim Speight and George Speight, as you have said, will take place at the SVT office 19 May at 6 pm. Who was present at this briefing?

And your answer was:

All of us who were present at 2 pm.

Do you remember that? --- Yes, the answer is correct.

Sorry? --- The answer is correct. That’s what I said.

The answer is correct? --- Yes.

So, those people who were present at the earlier meeting were also present at the later meeting? --- Yes, that’s the answer I gave.

Yes. Very well. At question 21:

What was George Speight and Jim Speight’s final briefing?

And your answer was this:

They told us that "everything is set". The coup "will surely take place".

Do you recall that? --- Yes.

And that’s correct? --- That’s correct."

43. This evidence was ambiguous because it was not clear whether the witness was acknowledging that his prior inconsistent statement was the truth, or was only acknowledging that he had said it. The assessors may have been entitled to treat the following evidence as an acknowledgement of the truth of his prior inconsistent statement:
    

"The answer is correct ... the answer is correct. That’s what I said. Q

The answer is correct? Yes"

44. In view of this ambiguity, which counsel for the State did not clear up, the judge could not, without more, tell the assessors that they could treat those out of court statements as evidence in the trial against the accused.
    
45. He should have taken the assessors to the relevant evidence, and directed them to consider whether the witness was acknowledging the truth of his out of court statements. For this purpose they could consider the demeanour of the witness when he was giving that evidence but they could not treat those statements as evidence in the trial unless they were satisfied that the witness intended to affirm their truth. They also had to give the accused the benefit of any doubt on that matter. Unless they were satisfied about that, the out of court statements would not be evidence against the accused in the trial and could not corroborate the evidence of Mr Drole.
    
46. Without this qualification the direction that the out of court statements by Mr Savu could corroborate Mr Drole was a serious misdirection prejudicial to the accused. Counsel for the accused did not seek any redirection on this matter. If an appropriate objection had been taken the judge would almost certainly have corrected his summing up because he had given a correct direction on this matter the day before.
    
47. The judge then directed the assessors that it was open to them to find that parts of the evidence of Mr Tuifagalele in cross examination corroborated the evidence of Mr Drole and he referred to the former’s evidence about the handing over of weapons near the CRW office at or after midnight on 18 May, and his evidence about a meeting at the STV office at 10 pm that evening (8/2781).
    
48. The judge was mistaken about the 10 pm meeting because, according to Mr Tuifagalele, neither of the accused were present. Mr Ridgway, counsel for the State, drew the judge’s attention to this error (8/2813-4). The judge then told the assessors that he had been mistaken about that, and that evidence could not corroborate Mr Drole (8/2819). He reaffirmed his direction that Mr Tuifagalele’s evidence about the handing over of the weapons could corroborate Mr Drole.
    
49. This was an error because Mr Tuifagalele had never said that Mr Silatolu was then present. Mr Tuifagalele’s evidence about the handing over of the weapons showed that Mr Drole was telling the truth about that, but this was not enough. R v Baskerville [1916] 2 KB 658 establishes that the corroboration of the evidence of an accomplice which the law requires must be independent evidence which, in some material particular, tends to show that the accused committed the crime charged. It is not enough that the independent evidence shows that the accomplice has told the truth in matters unconnected with the guilt of the accused. The judge’s direction to the contrary was a serious error, prejudicial to Mr Silatolu.
    
50. Thus there were a number of serious errors in the summing up relating to the evidence which was capable of corroborating the evidence of Mr Drole. No objection was taken at the trial to the relevant parts of the summing up and counsel for the petitioners did not rely on these errors in the Court of Appeal, or in the written or oral submissions in chief to this Court.
    
51. However the trial judge’s directions to the assessors regarding the evidence that might amount to corroboration were unduly favourable to the petitioners. It was at one time thought that corroboration had to be a separate item of evidence implicating the accused in relation to the evidence which required corroboration; see R v Baskerville. In other words there had to be a link between what was corroborative, and the actual evidence given by the witness which required corroboration.
    
52. Evidence that shows, or might be thought to show, that a witness is generally speaking the truth may not corroborate that witness as a matter of law because, for example, it may only prove that the crime was committed without implicating the accused in that crime.
    
53. Later cases have established that circumstantial evidence which implicates the accused in the particular offence can constitute corroboration. That is so irrespective of whether that evidence provides direct support for the witness whose evidence requires corroboration.
    
54. For example, lies told by an accused can constitute corroboration: Eade v The King [1924] ArgusLawRp 24; (1924) 34 CLR 154, 158. In Credland v Knowler (1951) 35 Cr App R 49, 55 Lord Goddard CJ said, on behalf of a Divisional Court, that a lie would amount to corroboration if it led to an inference in support of the evidence of the witness, or if it gave a different complexion to a proved opportunity than it would otherwise have had.
    
55. In the same way, similar fact evidence, where admissible, is capable of amounting to corroboration: DPP v Boardman [1975] AC 421. So too is flight where it evidences consciousness of guilt. Such evidence does not bear directly upon what an accomplice may say, but it can amount to independent evidence which implicates the accused in the commission of the offence.
    

Were the convictions safe and satisfactory?

56. Although the points were not raised below this Court can still intervene if it is satisfied, in terms of s 7(2) (c) of the Supreme Court Act that substantial and grave injustice may otherwise occur: Solinakoroi v The State (CAV0005/2005S). The Court must also consider the proviso in s 23 of the Court of Appeal Act that that Court may dismiss a criminal appeal although an error of law has been established "if they consider that no substantial miscarriage of justice has occurred".
    
57. The Court can apply the proviso although there were errors in the summing up relating to the evidence of an accomplice and its corroboration: Davies v DPP [1954] AC at 398, 399; R v Jenkins (1980) 72 Cr App R 354. The question is whether there is enough other convincing evidence to make the convictions safe and satisfactory.
    
58. The test under s 7(2) (c) of the Supreme Court Act which a petitioner must satisfy is more demanding than that in the proviso.
    
59. The Court of Appeal applied the proviso but only in the context of the supposed error of the trial judge in directing the assessors that the evidence of Mr Tuifagalele, although an accomplice, was capable of corroborating the evidence of Mr Drole. This was an error but not because Mr Tuifagalele was an accomplice. The other errors in the summing up on corroboration were not considered.
    
60. The Court of Appeal applied the proviso because they held (par [60]) that "the other evidence suggested by the judge to be capable of corroborating Mr Drole provided stronger corroboration than did the evidence of Mr Tuifagalele and no substantial miscarriage of justice arose".
    
61. The judge had referred to the circumstantial evidence of alleged calls between George Speight and the two accused by landline and mobile phone on 19 May, and some of the documents seized at Mr Nata’s office under a search warrant. Most of those documents were only evidence against Mr Nata, but the phone calls were evidence against both accused.
    
62. The judge said (8/2782) that the evidence of the phone calls between George Speight and the two accused, if accepted "may also, as circumstantial evidence, corroborate what Mr Drole was saying about those three men being seen together on 18 May, and also on the 19th". The judge also referred to Ex 19, part of the file alleged to have been found in Mr Nata’s office. Some of the documents showed Mr Silatolu as the Interim Prime Minister in the new Government. Mr Drole gave evidence that Mr Nata typed this list at a meeting at which he, George Speight, Mr Silatolu, and others had been present in the early hours of 19 May (5/1271, 1273-6).
    
63. The documentary evidence, comprising 93 prosecution exhibits and the defence exhibits, included video tapes of various press conferences, interviews, and swearing-in ceremonies, and transcripts thereof, this material was not reproduced for the Court of Appeal or included in the Record for this Court.
    
64. There were 19 exhibits recording relevant phone calls on 18 and 19 May, and for various periods before and after those dates, on the mobile phones and landlines of the accused, on George Speight’s mobile phone, and on the landline to his father’s house at Lami where he was living. There were also a number of charts and summaries which purported to show the relevant information in a readily understandable form. These comprised a further 7 exhibits (Supp Record of High Court 3-8).
    
65. There was no evidence of the contents of these calls and very little direct evidence of the persons who made them. The April charts (Ex P76) showed 51 calls between numbers registered for the two accused (5/1362). A chart for May up to the 19th (Ex P77) showed the calls between those numbers in that period (5/1365). There were no calls after 11.42 on the 19 May. A separate chart (Ex P78) showed the calls between those numbers and between any of them and numbers available to George Speight on 19 May up to 11 am (5/1366-72).
    
66. The first call on 19 May was at 1.43 between the Lami phone available to George Speight and Mr Silatolu’s mobile. Then there were calls on the phones of the accused, or between one of those phones and the phones available to George Speight at 1.44, 1.50, 2.00, 2.58, 3.15, 3.54, 4.00, 4.50, 7.55, 8.19, 9.03, 9.16, 9.43, 9.58, 10.00, 10.02, 10.05, 10.10 and 10.39 (5/1367-70, 1375).
    
67. Mr Drole said that his task on the morning of 19 May was to inspect the Parliamentary complex to ascertain whether any armed troops or police were present, and to advise George Speight. He said he did this and rang George Speight on his mobile phone shortly before 10.00 (5/1278). He then went to the public gallery in Parliament.
    
68. Parliament commenced with prayers and the armed invasion occurred about 10.45 (Mr Silatolu 5/1557). Mr Drole said that after Parliament began to sit he saw Mr Silatolu, who was a member, leave his seat, walk out to the verandah and make a call on his mobile phone (5/1278). A few minutes later armed men led by George Speight entered the Parliament (5/1279).
    
69. In the early hours of that morning at Suva Point he heard George Speight tell Mr Silatolu "you’re the one who will make the final call from Parliament, straight after the prayer".
    
70. The exhibits showed a call made from Mr Silatolu’s mobile phone to George Speight’s mobile phone shortly before the invasion (8/2737).
    
71. Mr Drole was not cross-examined by counsel for Mr Silatolu to suggest that he had borrowed Mr Silatolu’s mobile phone and made a call to George Speight after Parliament had commenced. However in his evidence in chief on 29 January 2003 Mr Silatolu was asked whether anyone else had made a call from his mobile phone after he arrived at Parliament on 19 May. He said yes, a call was made by Mr Drole (5/1583). Mr Ridgway then sought to raise a matter in the absence of the assessors.
    
72. He complained of the breach of the rule in Browne v Dunn (1894) 6 R 67 (HL) by counsel for Mr Silatolu (5/1587) because Mr Drole had not been cross-examined about his alleged use of Mr Silatolu’s mobile phone. On 20 January early in Mr Drole’s cross-examination he had said (5/1299):
    

"If there are any matters to be put to this witness which are a challenge to his credibility, or any issue of fact, they should be put. The rule in Browne and Dunn [sic] ...."

73. Earlier still, Mr Ridgway had asked Mr Drole about a conversation with Mr Silatolu in Nukalau Prison on 18 July 2002 (5/1282). The judge intervened and legal argument followed in the absence of the assessors. Counsel for the State indicated that he expected the witness to say that on the occasion in question Mr Silatolu asked him more than once to lie about the mobile phone he had used to make a phone call from Parliament on the morning of 19 May and the witness had refused. Defence counsel objected to the line of questioning and in the end counsel for the State did not press the questions.
    
74. Objection having been taken to evidence from Mr Silatolu about the loan of his mobile phone to Mr Drole, legal argument about the rule in Browne v Dunn followed in the absence of the assessors. The judge noted (5/1589) that no application had been made by the defence for Mr Drole to be recalled for further cross-examination. He said that in the absence of such an application he would disallow the proposed line of questioning for breach of the rule in Browne v Dunn. Counsel for Mr Silatolu did not ask for Mr Drole to be recalled and the judge then rejected that line of questioning.
    
75. In the result there was no effective challenge by cross-examination or otherwise to Mr Drole’s evidence that he saw Mr Silatolu make a call from Parliament on a mobile phone shortly before the invasion of Parliament. The judge’s ruling was not challenged in the Court of Appeal or in this Court.
    
76. In our judgment the evidence about the phone calls on Mr Silatolu’s mobile phone on 19 May before 11 am and in particular the phone call to the mobile phone used by George Speight a few minutes before the invasion of Parliament was powerful corroboration of a material part of Mr Drole’s evidence which implicated Mr Silatolu. Indeed it was compelling. Mr Drole in prison on Nukalau could not have known that the records for Mr Silatolu’s and Mr Speight’s mobile phones would record a call from the former to the latter shortly before the invasion of Parliament.
    
77. There was some direct evidence that other calls were made by Mr Silatolu and George Speight that were recorded on 19 May. Mr Silatolu called his boss at Telecom Fiji at 9 am on 19 May and his voice was recognised (4/1078), a Mr Maharaj received a call from George Speight at 2.30 am on the 19th on his mobile, and recognised his voice (4/1079), and Mr Drole rang George Speight on his mobile at 10 am that day. However the circumstantial evidence supports a compelling inference that the accused and George Speight did make those calls. As Dixon J said in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 376:
    

"The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude as unreasonable any other explanation or hypothesis than the truth of the fact to be proved."

78. This circumstantial evidence also corroborated Mr Drole’s evidence that Mr Nata was involved in the conspiracy.
    
79. The judge directed the assessors that documents seized from Mr Nata’s office under a search warrant on 28 July 2000 provided circumstantial evidence capable of corroborating Mr Drole’s evidence against Nata. The list of documents seized prepared by Constable Kumar became Ex P54, and the documents extracted by Det Sgt White from the 9 files in that list became Ex P56. The Sergeant said that the files were scattered on the desk in the office.
    
80. After that exhibit was tendered the judge summarised the contents for the benefit of the assessors (4/1134-6). They included lists of office holders in the so called Interim Civilian Government of George Speight at various dates in June and July 2000, a number of Press Releases by George Speight dated on and after 9 June, blank forms of Oaths of Office as Interim President, Minister or Judge, a copy of the Fiji Gazette for Friday 19 May, a letter from George Speight to Mr Silatolu addressed as Interim Prime Minister and one to Mr Nata addressed as Secretary to the Cabinet.
    
81. Mr Nata’s name appeared on some of the lists of members of the Interim Civilian Government and in some of the minutes of meetings (8/2725-8). His mobile phone number also appeared on many of the copies of Press Releases by George Speight which were found in the files (5/2729-31).
    
82. Mr Nata attempted to distance himself from these documents, denied any knowledge of their contents, denied that he had agreed to be part of George Speight’s government, and could not explain why his mobile phone number was on a large number of the Press Releases. The assessors were not bound to accept this evidence, and if they rejected it they could find that this substantial collection of documents, taken together, powerfully corroborated Mr Drole’s evidence that Mr Nata was involved in the planning for the coup.
    
83. The evidence of the phone calls and the documents found in Mr Nata’s office was objective evidence which reasonable assessors would have found was highly persuasive, if not compelling. If they accepted it, they were entitled to accept Mr Drole’s evidence implicating Mr Nata despite the judge’s warning.
    

Other independent or objective evidence

84. In addition there was substantial objective evidence that the accused were committed to the coup and fully involved. This evidence also corroborated the evidence of Mr Drole. The judge did not direct the assessors to this effect and this error was very favourable to the accused.
    
85. There was a video of George Speight’s second press conference on 19 May at which Mr Silatolu spoke as Interim Prime Minister, his long letter to Ratu Tevita Momoedonu of 20 May written as Interim Prime Minister, the video of his interview by Jeffrey Smith, the editor of Fiji TV on 24 or 25 May, and the unchallenged evidence of Senator Emberson-Bain of a conversation with Mr Silatolu at Parliament House at 11.30 pm on 19 May (8/2741-8).
    
86. The evidence of this nature against Mr Nata included electronic records of his telephone interview by Mr Broadbridge on 24 May, the video of another telephone interview on 26 May, and the video of the meeting between George Speight, Mr Nata and others with Mr McKinnon from the Commonwealth Secretariat on a date which was not identified (8/2752-61).
    
87. Then there was the evidence, largely unchallenged, of a number of independent witnesses (8/2741-65, 2776-9). Mr Leo Smith, an Independent Member of Parliament, said that after the takeover of Parliament there were meetings he and others observed between George Speight, Mr Silatolu, Mr Nata and others which concluded with an instruction from George Speight to Mr Nata to draw up some decrees for the Interim Government. Mr Dakunivecena, who worked for the Fijian Association Party at Parliament House, said that Mr Nata arrived at Parliament about 15 minutes after the takeover.
    
88. There was also the unchallenged evidence of Sainimili Cavuilati, a policewoman in Special Branch. She entered Parliament in plain clothes on 19 May. About 8 pm Mr Nata asked her to photocopy some documents. She did this but also faxed copies to her office. They were decrees and minutes of a meeting. She gave Mr Nata the photocopies in the presence of George Speight, Mr Silatolu, and others.
    
89. She remained in Parliament House until 4.30 am the next morning and saw a meeting at which George Speight, Mr Silatolu, Mr Nata and others were present (4/1044). She returned later and witnessed the swearing-in of ministers and saw Mr Silatolu and Mr Nata in the Parliament (4/1048).
    
90. Luisa Mafi volunteered to go to Parliament House on Sunday 21 May to help type documents. She there met Mr Nata who asked her to type "a proposal for the Government line-up". She did this and gave it to him and was then asked to retype it (4/1067-8). The Rev Maikeli Vosaki gave evidence that Mr Nata was part of the Speight delegation that negotiated the Muanikau Accord which led to the release of the remaining hostages (4/1089) and he spoke at the meetings (4/1092). Captain Saladuadua gave evidence that George Speight and some of his associates including Mr Nata were captured near Nausori on 26 July after they had left the Parliament following the release of the hostages (4/1086).
    
91. Corporal Waqa gave evidence that he executed a search warrant at the business premises of Vodo and Vakalalabure, lawyers, on 4 October 2000 and seized a file in a carry bag that was on Mr Vakalalabure’s desk. This contained Original Decree No 1 signed by George Speight which purported to revoke the 1997 Constitution, Original Decree No 2 of 19 May signed by Mr Silatolu as Interim Prime Minister, other original decrees signed by George Speight, the Fiji Judicature Decree of 19 May signed by Mr Silatolu as Prime Minister and another decree of 19 May signed by him as Prime Minister. The file also included a copy of the Fiji Government Gazette bearing Mr Silatolu’s signature as Interim Prime Minister, and original forms of oath for due execution of the offices of Interim Prime Minister and Deputy Prime Minister which Mr Silatolu had signed. It also included faxed copies of decrees with the image of the Fiji Gazette, one of which was signed by Mr Silatolu as Interim Prime Minister. All these documents were admitted without objection (4/1153-62).
    
92. The State’s case, as a whole, was powerful, if not overwhelming, and the assessors must have rejected the exculpatory evidence of the accused. In our judgment there was more than enough convincing evidence to make the convictions safe and satisfactory. Special leave should be granted on this ground but the appeals should be dismissed.
    

The alleged incompetence of counsel

93. Counsel for the first petitioner submitted that there had been a miscarriage of justice in Mr Silatolu’s case because the accused had been represented at the trial by incompetent counsel. This could be a ground for this Court’s intervention under s 7(2) (c) of the Supreme Court Act where "substantial and grave injustice may otherwise occur". The focus must be on this question and not on the professional competence of defence counsel as such.
    
94. The only matter which calls for consideration under this head is the failure of counsel to cross-examine Mr Drole about his alleged conversation with Mr Silatolu at Parliament on the morning of the coup when he allegedly borrowed the latter’s mobile phone to make a call.
    
95. There was no evidence either at the trial, or in the Court of Appeal, of the reasons for counsel’s original failure to cross-examine Mr Drole on that topic. In our judgment that does not matter because the judge invited counsel to apply for Mr Drole to be recalled for that purpose (par [73]). When counsel elected not to make such an application further evidence on that topic from Mr Silatolu was rejected.
    
96. The significance of what was happening could not have been lost either on Mr Silatolu or his counsel. A tactical election was made. The recall of Mr Drole for further cross-examination was not without its risks, just as there were risks in the course that was followed.
    
97. In general a tactical election which turns out badly for the accused cannot, in itself, occasion a miscarriage of justice. It may only have contributed to the conviction of the guilty. Special leave on this ground should be refused.
    

Orders

1. Special leave granted limited to the two grounds referred to.
   
2. Appeals dismissed.
   

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
AK Singh Law, Nausori for the First Petitioner
Legal Aid Commission, Suva for the Second Petitioner
Office of the Director of Public Prosecutions, Suva for the Respondent