State v Enuma [1997] PGNC 162; N1723 (15 December 1997)

Unreported National Court Decisions

N1723

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DFCR 1 OF 1997
THE STATE
V
MAJOR WALTER ENUMA
CAPT. BOLA RENAGI
CAPT. BELDEN NAMAH
LIEUT. MICHAEL DAVID
2ND LIEUT. LINUS OSOBA

Murray Barracks

Sevua J (sitting as Defence Force Judge)
28 August 1997
8 September 1997
12 September 1997
18-19 September 1997
24 September 1997
26 September 1997
29-30 September 1997
1-3 October 1997
6-7 October 1997
15-17 October 1997
21-22 October 1997
24 October 1997
28-29 October 1997
3-7 November 1997
2 December 1997
4 December 1997
9 December 1997
15 December 1997

CRIMINAL LAW – Mutiny – Elements of – Overthrow or Resist lawful authority in the Defence Force – Impede the performance of duty or service in the Defence Force.

COURT MARTIAL – Mutiny – Elements of – Armed troops holding Commander and senior officer under house arrest – Orders given to duty personnel in Force Operation Centre and Communications Centre not communicate – Unplugging of telephones from sockets.

MUTINY – Statutory defences of Self Defence, Provocation and Justification – Whether they apply – Whether actions of accuseds amount to mutiny – Defence Act Ch 74, ss 6, 10; Criminal Code ss 7, 15; Constitution ss 193, 201.

Held

1. ;ټ M60; Mutiny tiny is a collective offence which cannot be committed by one man.

2. &##160; T60; The actifns o athesedcuseds, except Major Walter Enuma, in placing the Commander, Brigadier Ge Leo and Lt. Col. Carl Carl Malpo under house arrest amount to mutiny under s.53(a) of the DefenDefence Act.

3. The actions o theseccu exs, except Major Walter Enuma, in issuing orders to authorised duty personnel not to communicate withne an temp unplg of honesded the performance of duty or service ance and amod amount tunt to muto mutiny uiny under nder s.53(c) of the Defence Act.

4. &#T60; cte as oonthe ccuseccuseds, except Major Walter Enuma, rendered them principal offenders therefore guilty of mutiny under s.7 of the Criminal Code and s.53(a) and (c) of the Defence Act.

5. ҈& M60; Major Wjor Walter Enuma, being a senior officer in rank than the other four accuseds, in failing to stop or prevent the operation from continuien heme awf the mutinous operation, is guilty of y of mutinmutiny in failing to use his endeavours tors to suppress or prevent mutiny from taking place under s.55(2)(a) of the Defence Act.

6. ҈ T60; The statutory cefenf s of self defence, provocation and justification do not apply in this case.

Cases Cited

R –v Grant, Davis, Riley Topl957] 906; [1957] 2 AII E R 694

R &i>R –#8211;v- A;v- Ashton (No. 3) [1991] 1 Qd R 443

The State –v- Albert Ugunnie & 2 Ors [1988-89] PNGLR 101

Counsel

Capt. M. Unagui for prosecution

Mr P. Parkop for accuseds

15 December 1997

SEVUA J: This is a mutiny trial involving five military officers from the Papua New Guinea Defence Force. They are all indicted with mutiny pursuant to s.55(1) of the Defence Act, Ch 74; and each has entered a plea of not guilty.

The allegations against these officers are these. On 28^th July, 1997; in the early hours of the morning, Major Walter Enuma, who had been under lawful custody at Boroko Police Station cells on a matter unrelated to this trial, was forcefully released by the other four officers with the assistance of an unknown number of troops from the Special Force Unit, all of whom were subject to the Code of Military Discipline. They mounted an illegal operation by taking control of the Force Operation Centre at Military HQ, Murray Barracks and the main gate located at Wards Road.

It is further alleged that they went to the residence of the Commander of the PNG Defence Force at the married officers quarters, Murray Barracks, and unlawfully detained the Commander and held him under house arrest.

The prosecution also alleged that officers at the Force Operation Centre were also detained and prevented from performing their normal authorised duties.

It was further alleged that, a senior officer of the Defence Force, Lt. Col. Carl Malpo, was also detained and placed under house arrest. It is alleged, the second accused, Captain Bola Renagi was the leader of this illegal operation and he had the full co-operation of the third, fourth and fifth accuseds.

The prosecution further alleged that between the hours of 0430 and 0445 hours on the morning of the 28^th July, 1997; the second, third, fourth and fifth accuseds, with an unknown number of troops went to Boroko Police Station where they forcefully and unlawfully removed the first accused, Major Walter Enuma from lawful custody. They then proceeded to Headquarters PNGDF, Murray Barracks, where the illegal operation continued until approximately 5.30 pm, when the Commander and Lt. Col. Malpo were released from house arrest.

The prosecution also alleged that, in mounting this illegal operation, the accuseds and other servicemen, except Major Enuma, were all dressed in full military uniforms and were armed with military weapons.

Finally, the prosecution alleged that in conducting themselves in the manner they did, the accuseds and their troops defied lawful authority and impeded the performance of service in the Defence Force.

Section 55(1) of the Defence Act provides that, “a person subject to the Code of Military Discipline who takes part in a mutiny is guilty of an offence. Penalty: Imprisonment for life or for a lesser term.”

Section 53 defines “mutiny” as follows:

“a combination of two or more persons subject to the Code of Military Discipline or the service law of an ally of Papua New Guinea or between persons of whom at least two are such persons:

(a) ټ&#to over overthrow hrow or resist lawful authority in the Defence Force or any force co-operating with the Defence Force, orny pa the Defence Force or any such force; or

(b) ; to d to disobeisobey any sany such authority in such circumstances as to make the disobedience subversive to discipline, or with the object of avoiding any service or duty against, or nnexith opons against,inst, an e an enemy;nemy; or

(c) ـ to impeee the perfoperformance of any duty or service in the Defence Force or any force co-operating with the Defence Force, or in any part of the Defence Force or any such force.”th July, 1997, which resulted in the placing of Commander Nuia and Lt. Col. Malpo under house arrest in their respective homes. I will only attempt to highlight the significant parts of the evidence and where they differ.

There is no dispute that all the accuseds were serving members of the PNG Defence Force until their suspension sometime during the trial. There is also no dispute that as serving members of the Defence Force, they were subject to the Code of Military Discipline. The evidence of Lt. Col. Phillip Playah and other officers confirm these facts. I therefore find as a fact that, on 28^th July, 1997; all the accuseds were serving members or officers of the Defence Force and were subject to the Code of Military Discipline.

Brigadier General Leo Nuia, the Commander of Papua New Guinea Defence Force, was appointed by the Governor General, acting with and in accordance with advice of the National Executive Council, on 3^rd July, 1997, which appointment was effective on and from 3^rd June, 1997. Exhibit “C”, which is a copy of National Gazette No. G53 confirms that appointment. The accuseds’ challenge to the legality and validity of this appointment was ruled irrelevant in my ruling following a no case to answer submission at the end of the prosecution’s case. As far as this Court is concerned, Brigadier General Leo Nuia was and is at all material times, the duly appointed Commander of Papua New Guinea Defence Force.

At approximately 0430 hours on 28^thJuly,1997, Brigadier General Leo Nuia was asleep in his house at Murray Barracks when he heard a knock on his front door. He got up, walked to the door and looked outside through the window and saw a soldier in military uniform with hood over his head and had webbings. The soldier said there were problems at the gate and the Commander should come out, however the Commander refused and told the soldier to go and tell his officer to come and see him . The Commander saw and heard other soldiers milling around under the house, at the backyard and on the street..

The soldiers had camouflaged paints on their faces, hoods and sweat rags over their faces and were armed with a RPG 7 (Rocket Propel Grenade) launcher and assault rifles. The Commander estimated the number of soldiers at a platoon strength (30-35 men) then later on during the day, reduced to 8-10 men. One of the soldiers then called out the Commander’s name and said something to the effect that he (Commander) was under house arrest. The Commander was ordered not to answer any telephone call when his telephone rang. His telephone line was severed and his personal vehicle tyres were deflated. He was kept under house arrest until about 5.30 pm when Chief of Staff, Col. Eric Ani, Col. Tuat, Col. Aikung, followed by Major Enuma, Capt. Renagi, Capt. Namah and Lt. Col. Malpo attended at his house and Col. Ani advised him that the Prime Minister had ordered the troops to release him.

The evidence of the Commander is supported by the evidence of Lt. Col. Davey Ugul, Acting Chief of Operations, who, was on his way out to drop off his wife at work at approximately 0445 hours, came upon the troops around the Commander’s residence. Lt. Col. Ugul came across the armoured vehicle (SSV) parked on the side of the road with a machine gun mounted on its roof and pointed at the Commander’s residence. He parked near the armoured vehicle and two soldiers came. Lt. Col. Ugul asked what the armoured vehicle was doing there and one of the soldiers replied, “we are conducting an operation to look after the boss” (meaning the Commander). When Lt. Col. Ugul asked who authorised the operation, the soldier did not reply.

Lt. Col. Ugul was still stationary opposite the Commander’s residence when Capt. Renagi and Capt. Namah arrived in a white land cruiser, which came and parked right next to the armoured vehicle. They approached Lt. Col. Ugul who asked who had authorised the operation. Capt. Renagi said he had authorised the operation. Capt. Namah then told Lt. Col. Ugul to return to his house as the Commander was under house arrest and that they were in control. Capt. Namah denied this in his evidence which I will refer to later. Capt. Namah also told Lt. Col. Ugul that there would be meeting at 0700 hours at the Force Conference Room (FCR) for officers from the rank of Major and above.

Following some arguments and disagreements between Lt. Col. Ugul and Capt. Namah opposite the Commander’s residence, Lt. Col. Ugul was permitted to go to the Wards Road gate and he was eventually allowed by Capt. Namah to drive out to drop his wife, however, he was told he must return. At the gate, Lt. Col. Ugul observed that there were armed soldiers, dressed in DPU (Distorted Pattern Uniform) jungle green uniform manning the Wards Road gate.

After his return home, Lt. Col. Ugul telephoned the Force Operation Center (FOC) and Major John Sehi who was on duty picked up the telephone. Lt. Col. Ugul tried to explain what he had seen, however Major Sehi said his hands were tied too, meaning, there were people in the Force Operation Centre.

At the same time that the Commander was being held under house arrest, Lt. Col. Carl Malpo was also held under house arrest in his own house at approximately 0530 hours on the same day.

Lt. Col. Malpo is the Director of Transport & Movement. On 11^th July, 1997, he was appointed Staff Officer 1 of Special Operation Group (SOG), a body formed by the Commander through a Command Directive whose purpose included keeping surveillance and conducting other operation that the normal military system was unable to at that time, for example, bringing in servicemen on AWOL (absent without leave) and others resisting lawful orders.

At approximately 0530 hours, Lt. Col. Malpo was awoken by his daughter after hearing noises and seeing soldiers outside their residence. He peeped through the window and saw troops in battle order, armed with automatic rifles. He saw two under the house, but at one stage, he saw about twelve. He then walked to the lounge and heard a knock on his front door. He opened the door and to his surprise, saw 2^nd Lt. Linus Osoba at the door with a pistol held at his abdomen and pointing at Lt. Col. Malpo. Behind the accused, 2^nd Lt. Osoba was a soldier, who identified himself only as Jeffrey, carrying a rifle.

2^nd Lt. Osoba then told Lt. Col. Malpo, “we have orders to place you under house arrest.” Lt. Col. Malpo then asked, if that meant he were to remain in the house throughout the day, to which 2^nd Lt. Osoba answered in the affirmative. Lt. Col. Malpo then asked if his children could attend school and 2^nd Lt. Osoba said, yes. Lt. Col. Malpo then invited the two armed soldiers into his lounge. Inside the house, they asked Lt. Col. Malpo if he had any weapons or communication equipments like radios or telephone, but he said no. They then proceeded to search the house but turned back from the shower room.

2^nd Lt. Osoba told Lt. Col. Malpo that the reason for his house arrest was “to keep you away because they were going to negotiate for pardon for those who took part in the Sandline crisis.” 2^nd Lt. Osoba also said, “we are keeping you away because you are influential.” In the course of the operation that day, Lt. Col. Malpo saw Lt. Michael David on the street outside his house just looking around. At other times, Lt. Col. Malpo saw other military vehicles including the armoured vehicle (SSV) with its machine gun mounted on the roof, outside his residence.

At approximately 1730 hours that day, Major Enuma, Capt. Renagi and Capt. Namah went to Lt. Col. Malpo’s house where Major Enuma said, “I’m sorry that things have come this far .......... The Prime Minister ..........has directed the release of yourself and the Commander.” Lt. Col. Malpo was then instructed by Major Enuma to go to the Commander’s house where the Prime Minister’s decision would be read by Acting Chief of Staff, Col. Ani.

Lt. Col. Malpo, followed by Major Enuma, Capt. Renagi and Capt. Namah then proceeded to the Commander’s residence where Col. Ani, Col. Tuat and Lt. Col. Ugul were. Col. Ani then read the Prime Minister’s direction then Major Enuma and the other accuseds left for Taurama Barracks.

Major John Sehi, a Communications Officer attached to the Operations Branch of the Directorate of Communications, HQ PNGDF, Murray Barracks was the Duty Staff Officer in the early hours of 28^th July, 1997. He was rostered for duty from 8 pm Sunday, 27^th July to 8 am Monday, 28^th July, therefore he was authorised to coordinate all Defence Force Communication links to ensure the Defence Force is ready at all times.

Prior to 0400 hours on 28^th July, 1997, Major Sehi heard movements of vehicles travelling at high speed between HQ PNGDF and the officers married quarters past the chapel. He became suspicious because the curfew had not yet been lifted, so he telephoned the Area Duty Officer for Murray Barracks Area however, there was no response. He consequently detached his Duty Staff Sergeant, Sgt. Magando to go and investigate. Sgt. Magando never reported back, however, he telephoned Major Sehi at approximately 0430 hours from the other ranks mess and advised that the Special Force Unit (SFU) had taken over the responsibilities of the Area Duty Officer and were also guarding the entrance to HQ PNGDF at the Wards Road gate. Major Sehi then telephoned Cpl. Eddie Fae, who was on shift duty at the Communications Centre, to assist him. Whilst Major Sehi and Cpl. Fae were on duty at the Force Operation Centre, they heard a loud bang or knock on the door at approximately 0415 hours. After a second loud knock, Major Sehi opened the door and to his surprise, saw Lt. Michael David with two sergeants from SFU. Lt. David informed Major Sehi that he (Sehi) was being relieved from his duties. Lt. David who had a pistol but did not display it, told Major Sehi, “the Commander of the PNG Defence Force, Brigadier General Leo Nuia and certain army officers have been placed under house arrest we are taking over command of PNGDF a new Commander will be appointed the next working day and will be sworn in.”

Major Sehi was then instructed by Lt. David not to make any telephone calls or use the radio to contact any organisation of the Defence Force. Lt. David then interfered with the communication equipment by unplugging telephones except extension 246. Whilst Major Sehi was being “held under house arrest”, three telephone calls came through, however, he informed those who called that he had been placed under office arrest and instructed not to make any call or speak to a caller.

It is Major Sehi's undisputed evidence that on the morning of 28^th July, he had a very big responsibility, but could not disseminate the information due to the interference. Major Sehi said the very important task that morning was to inform the Forward Tactical Commander in Buka of a Battalion changeover between 1RPIR and 2RPIR. The 2^nd Battalion was to relieve the1^st Battalion. The insertion and extraction of the battalion were to be done by Defence Force CASA aircraft at that time. However, due to the crippling of the Force Operation Centre, the exchange did not take place on 28^th July, 1997. The orders were released on 27^th July, 1997, but due to communication problems between Bougainville and Murray Barracks, Major Sehi was going to coordinate the insertion and extraction of the battalions on the 28^th July. The information had been passed on, however, it needed confirmation because the CASA aircraft had overnighted in Wewak. The confirmation and coordination was not done due to the interference by Lt. David.

At approximately 0530 hours, Major Sehi was dismissed by Lt. David so he (Sehi) left the FOC and returned to Goldie Barracks where he resided. On his way out from the Officers Annex he saw Capt. Renagi, Capt. Namah and SFU troops at the gate. He also saw Major Enuma sitting in a parked white utility, registration ZDU 159 approximately 15-20 metres from the Wards Road gate, towards HQ PNGDF. The time was proceeding to 0600 hours and it was already daylight, so he recognised Major Enuma in tracksuit sitting in front of the white utility. At Goldie, he briefed the Commander, Lt. Col. Job Kasa on what was going on at HQ PNGDF.

The sighting of Major Enuma at Murray Barracks in the early hours of 28^th July, is supported by the evidence of Sgt. James Meakoro, the Duty Sergeant of Murray Barracks Area Duty Office.

Sgt. Meakoro was in the duty room with five of his guards whilst two guards were posted at the guardhouse at the Wards Road gate. At approximately 0430 hours, a white utility arrived and parked directly near the footpath leading to the Duty Office. Capt. Namah alighted and walked towards the office whilst Capt. Renagi and Major Enuma sat inside the vehicle. Sgt. Meakoro met Capt. Namah on the footpath. Capt. Namah then asked the sergeant if he was the duty officer, and Sgt. Meakoro said, “I am the duty sergeant”. Capt. Namah then “issued an order that all duty personnel were under house arrest, there were to be no telephone calls to any person responsible for the Murray Barracks Area”. Sgt. Meakoro then recalled all his men and they all withdrew to the duty room until 0800 hours when they dismounted duty.

When Capt. Namah issued the order, he unplugged the telephone from its socket and took it away until about 0500 hours when he returned the telephone. There were about a company size of armed troops at the Wards Road gate and they were in DPUs and armed with pistols, SLRs and the new M26 rifles. When Sgt. Meakoro and his guards dismounted duty at 0800 hours, Lt. David gave the approval at the Wards Road gate.

Cpl. Eddy Fae’s evidence relating to the entry of Lt. David into the FOC supports the evidence of Major Sehi. However, Cpl. Fae said, one of the soldiers who accompanied Lt. David into the FOC was Pte. Palaso Lee, who he knew personally. Cpl. Fae also said, Lt. David entered the Communication Centre after he (Fae) had returned there and ordered him and five other duty personnel not to make any telephone or radio calls so they complied. However, Lt. David was not the appropriate officer to give such an order.

The evidence of the three policemen, Const. Danny Kaikar, Const. Noel Akom and Const. Ginger Punai can be briefly summarised at once. They were on duty at Boroko Police Station when the accused, Major Walter Enuma was forcefully released by armed troops.

Without detailing their evidence, they said basically the same thing although the evidence of time differed. Basically, between 0430 and 0500 hours, two uniformed soldiers went to the cells under the pretext of giving Major Enuma some change of clothes and in the process, pulled Major Enuma out from the cell and ran out with him after a brief scuffle with the three policemen. The two soldiers were aided by armed troops who were waiting at the front carpark of Boroko Police Station. The timing conflict with the time Defence Force personnel have stated in their respective evidence, however, I accept that there were inaccurate recollection of time.

Col. Jack Tuat and Col. Eric Ani are the two most senior officers who also gave evidence in this trial. Their evidence, very substantive and significant in nature, relate to the meeting convened at approximately 0700 hours on 28^th July, 1997. Their evidence also touch on other issues that I consider very relevant in this trial . Most of the evidence of these two senior officers have not been challenged or disputed by the defence.

Col. Ani, then Acting Chief of Staff, was in his residence on the morning of 28^th July, 1997, when briefed by Col. Tuat, Lt. Col. Ignatius Lai and Lt. Col. Blaise Afara that the Commander and Lt. Col. Malpo were being held under house arrest. No reason was given to Col. Ani by these officers, however, they advised that there was a meeting called for all senior officers at HQ in the Force Conference Room that morning. As Col. Ani was not yet ready for work, he asked the three officers to go ahead and he would follow later. When he finally arrived at FCR, he saw most senior officers present with three of the accuseds, Major Enuma, Capt. Renagi and Capt. Namah. He also noted the presence of lawyer, Mr Peter Donigi. As the meeting was already in progress, Col Ani allowed Col. Tuat to chair the meeting in his presence.

According to Col. Ani, the main item being discussed was the question of amnesty or pardon for the military personnel involved in the Sandline saga. Mr Donigi who had been invited by Major Enuma, Capt. Renagi and Capt. Namah, was asked to explain the meaning of those terms to those present. It appeared that the question of amnesty should be raised with the Prime Minister and that, Col. Ani was to brief the Prime Minister.

However, it was demanded that Mr Donigi accompany Col. Ani to brief the Prime Minister. There could not be any justification for Mr Donigi to be involved in all these, when he knew that the Commander was being held under house arrest. One would be forgiven for thinking he did not know, but that was not the case here.

On the mid afternoon of 28^th July, 1997. Col. Ani briefed Prime Minister Skate at Morauta Haus at the NEC Conference Room. During that briefing, it appeared that the Prime Minister had already been briefed since he had a notepad with some written notes. As he was being briefed by Col. Ani, the Prime Minister was noting some of the points that Col. Ani was raising. The briefing was short.

Thereafter, Mr Donigi attempted to negotiate amnesty for the servicemen who participated in the Sandline crisis. The Attorney General who was then present, said this was not possible then Mr Donigi countered that opposition by proposing a contract or agreement, which would result in what he was trying to achieve. Again the Attorney General advised this would not be possible. The Prime Minister then gave a direction in the form of a press release to be read to the officers at the FCR later that afternoon by the caretaker Minister for Defence at that time. The Press Statement is marked Exhibit “G” and amongst other issues, the Prime Minister, Mr Bill Skate, directed the release of the Commander and Lt. Col. Malpo. Reference to Mr Donigi will become significant later. Eventually, the Commander, Brigadier General Leo Nuia and Lt. Col. Malpo were released at approximately 1730 hours as adverted to earlier on.

I think the purpose of the meeting convened by the accuseds on 28^th July at FCR will become clearer in the evidence of Col. Jack Tuat.

Col. Jack Tuat was the Acting Commander following the revocation of appointment of Col. Alfred Aikung. As a senior officer and one who tried to control the situation after 17^th March 1997; his evidence is quite significant. Without canvassing how he became aware of the operation of 28^th July, he himself observed the Wards Road gate was being manned by troops. He also observed that there were armed troops around Lt. Col. Malpo’s house that morning.

Following Col. Tuat’s briefing of Col. Ani, Col. Tuat went to the FCR since he was already aware of the meeting. He called the officers into the FCR and he noted the presence of Mr Donigi, Major Enuma, Capt. Renagi and Capt. Namah. Whilst there were general discussions with Mr Donigi and the three accuseds. Col. Ani arrived at about 0845 or 0900 hours and requested Col. Tuat to chair the meeting.

Col. Tuat asked for an explanation of what had happened. Capt. Renagi addressed the officers of what had happened in the early hours of that morning. He informed the meeting that there were three objectives of the operation codenamed, “Operation Stretim Ples”, which he himself was personally in command and which he himself initiated. The three objectives were; firstly, the immediate release of Major Enuma from police custody. Secondly, the house arrest of the Commander and certain officers. Thirdly, to petition the government or the Prime Minister to address the officers on the question of amnesty. As Col. Tuat stated, objectives one and two had already been achieved.

There was no formal authority, order or directive issued for the execution of the operation. It was Capt. Renagi’s own initiative and he personally took charge of it. He also informed the meeting that one of the main purpose of the operation was the alleged harassment by SOG members directed by the Commander, and headed by Lt. Col. Malpo. Capt. Renagi indicated then that whatever the legal repercussions, he would be prepared to face the consequences because he directed the operation.

Col. Tuat then allowed Mr Donigi to speak. Mr Donigi referred to the events of March in relation to Sandline and said that what the troops had done was they had dug their own grave and his purpose was to ensure that he pull the troops out of that grave. He also referred to the incident of 28^th July and said, it did not help the situation at all, but widened the grave and made his job to get them out of that grave much more difficult.

From his evidence, it became glaringly clear that Mr Donigi’s presence and participation at the Military HQ that morning was not to assist in restoring normalcy, but to push for amnesty for Major Enuma and those involved in the events of March, 1997 re the Sandline issue. That is quite consistent with the evidence of Col. Ani and I refer to a question and answer in examination in chief to demonstrate this point.

“Q. &##160; In your presepresence in ehe meeting, was there any discussion of the house arrest of the Commander and Col. Malpo?

A. It was like they were forgotten, as they were unde under house arrest and the discussion were on the “well being” if I could call it that, of those involved in the Sandline crisis.”

Other issues were discussed but in the light of what has been alluded to in the evidence of Col. Tuat, these other issues become secondary to the objectives of Operation Stretim Ples that Capt. Renagi had planned and executed with active support and co-operation from the other accuseds.

In essence that is the substance of the prosecution’s case.

The accuseds commenced their case by tendering a Admission of Facts which was marked Exhibit “E”. In that document, except for the accused Major Walter Enuma, the four other accuseds admitted that Operation Stretim Ples was carried out on 28^th July, 1997 and it involved troops from Special Force Unit (SFU) and Murray Barracks Area. Its purpose was to neutralise the Special Operation Group (SOG) and the operation was executed on the orders of Acting OC of SFU, Capt. Bola Renagi.

The defence case can be summarised as follows Capt. Bola Renagi, then Acting OC of SFU, initiated and planned the operation codenamed, “Operation Stretim Ples”, which was basically to neutralise SOG. He did the planning, gave the orders and executed the plan following a meeting with the Prime Minister, Mr Bill Skate, as the purported Commander in Chief of Special Force Unit. I will return to this chair of command later.

However, in essence, the operation was conducted because of various allegations of harassment by SOG members against SFU members.

Capt. Belden Namah was a former member of SFU. On 2^nd July, 1997; he had been detached to HQ PNGDF and was therefore responsible to CO HQ or SO1 CO-ord., Lt. Col. Ignatius Lai. However, he actively purported and supported Capt. Renagi and Operation Stretim Ples. He was the one who ordered the Duty Sergeant, Sgt. Meakoro, not to make any telephone calls and he infact pulled out the telephone from the socket. He denied though that the phone was unplugged for half an hour, and he denied or deny the Duty Sergeant to dismount duty that morning. Again, he showed the same views as Capt. Renagi, in so far as the allegations against SOG were concerned. Capt. Namah was not prepared to seek a restraining order from the Court to stop the so-called harassment, yet he was prepared to carry out an illegal operation.

Lt. Michael David is a Communications Officer with SFU. He admitted on oath that he entered the Force Operation Centre and the Communication Centre and gave orders to duty personnel, not to use the telephone. However, he said he specifically ordered no communication to SOG members or SO1 SOG. He denied unplugging the telephones as described by Major Sehi. Instead, he said he saw the telephone cables tangled up so he unplugged the telephones to untangle them then reconnected them. He also denied his presence at Lt. Col. Malpo’s residence. Once again, he supported the allegations of harassment by SOG members.

2^nd Lt. Linus Osoba is a Platoon Commander of SFU. He was given his mission statement at 12 midnight on 27^th July, 1997 by Capt. Renagi. His primary task was to neutralise Lt. Col. Malpo SOG Commander by removing communication equipments or firearms. His secondary task was to neutralise other SOG members including Capt. Paul Kaliop. At about 0500 hours on 28^th July, 1997, he went to Lt. Co. Malpo’s residence and placed him under house arrest. He denied the use of pistol as described by Lt. Col. Malpo. When 2^nd Lt. Osoba went out of the house, he ensured that there were troops guarding Lt. Col. Malpo.

Major Walter Enuma was forcefully and unlawfully released from Boroko Police Station cells in the early morning of 28^th July, 1997; by soldiers he said he did not recognise. He was taken straight to the Wards Road gate at Murray Barracks when he saw soldiers he identified as from Goldie and Murray Barracks Area. The vehicle which took him there went and parked between the Fire Station and the gate. He was told to wait for Capt. Renagi. As he was driven out from Boroko Police Station, he was told by armed troops that he was being taken to Murray Barracks where an operation was going on and he would be briefed. He was eventually briefed by Capt. Renagi, at or between 5-5.30 am and he said, this was about the same time Major Sehi walked past them near the gate.

Major Enuma’s first reaction was that he was shocked although he knew the tension was high and he attributed this to the activities of SOG. He remained within the barracks area until the meeting later that morning. It is his evidence that, “the meeting should be held as early as possible with the mind to solve this problem.....because armed soldiers were still there and it was easy to escalate into an armed confrontation.” He saw his role was to “de-escalate” the problem by whatever means and mode. When asked if he try to stop the operation from going ahead, he replied, “the operation was already completed as far as the objective was concerned and from briefing I had, the men_ wanted a guarantee from the government that they will not be arrested or charged for their participation in Operation Rausim Kwik.”

Following the briefing of Prime Minister by Col. Ani and the Prime Minister’s response, Capt. Renagi and Capt. Namah passed on the response to their soldiers. Major Enuma was picked up by these two accuseds, and they proceeded to Lt. Col. Malpo’s residence from the FOC. After Major Enuma had saluted Lt. Col. Malpo at the door, Major Enuma sat down at Lt. Col. Malpo’s invitation and Major Enuma said, “Sir, I’m sorry that we have allowed this situation to come this far.” Lt. Col. Malpo was informed of the Prime Minister’s directive and released and later went to the Commander’s residence.

It is important to note Major Enuma’s evidence in respect of the cessation of the operation. He said, “the operation immediately ceased as soon as orders were given, the men pulled out when I was waiting at FOC. By the time we came to the Commander’s residence, troops were on their way out from the Commander’s residence or the residential area.” Again Major Enuma referred to the allegation of harassment by SOG members against SFU members and those who participated in Operation Rausim Kwik.

The defence case, as can be seen from the accuseds’ evidence, was conducted on the basis that the accuseds, apart from Major Enuma, were provoked by what was alleged as “illegal activities” of SOG members so they acted in self defence so that what they did was justified in law. In other words, they relied on the statutory defences of provocation, self defence and justification. At this juncture, I should say that these defences are available in the Criminal Code, but are not available under the Defence Act.

Basically, the accuseds have submitted that, the events of 28^th July, 1997 did not amount to mutiny. The operation was carried out by a lawful unit of the PNG Defence Force, the orders given were lawful and the operation itself was lawful, therefore the accuseds should not be convicted of mutiny.

I consider that these submissions are misconceived. In my view, it would be wrong and erroneous for this Court to find that the events of 28^th July, 1997 did not amount to mutiny. The evidence is very clear. Brigadier General Leo Nuia and Lt. Col. Malpo were illegally detained and held under house arrest by the accuseds and other armed troops. There is no doubt at all about the presence of armed troops around the residences of both the Commander and Lt. Col. Malpo. There is no doubt that the armoured vehicle with its machine gun mounted on its roof was used on 28^th July. It was parked opposite the Commander’s residence with its gun pointed at his residence and further, Col. Tuat saw it in the vicinity of Lt. Col. Malpo’s residence at one stage, with a soldier ‘s head protruding above the roof where the machine gun was mounted. It is quite absurd and erroneous, in my view, to say that the scenario on 28^th July, 1997 was not illegal.

How can a sane and right minded person say that the detention of the Commander and Lt. Col. Malpo under heavily armed troops was not criminal? Especially when the troops were armed with rifles, a RPG 7 and the use of the SSV or armoured vehicle. It is my view that Operation Stretim Ples, carried out on 28^th July, 1997 was illegal, it was a criminal act and the actions of those involved including the accuseds amounted to mutiny.

As the offence of mutiny is peculiar to the military, it is not common thus there are not many case law on it. However, it is my view that mutiny is adequately discussed in two cases that have been referred to and which I will also be referring to.

At this juncture, let me say that during the operation which started at approximately 0430 hours on the morning of 28^th July, 1997 and ceased at approximately 1750 hours the same day, neither the Commander, nor Lt. Col. Malpo or any of the very senior officers issued any orders for the operation to cease. No order for the troops to pull out were issued by anyone. I consider that under the circumstances it was very risky and dangerous for anyone to give any such order let alone even attempting to. The situation was not conducive to such orders to be issued.

The elements of the offence of mutiny under s.53 of the Defence Act are as follows; firstly, there must be two or more persons involved acting in concert or together. Secondly, there must be open resistance to or disobedience of lawful or constituted authority. Thirdly, it has to be such a substantial degree of open resistance or disobedience as to justify the description of what happened as being an uprising causing subversion of discipline. And finally, the actions of the two or more persons must impede the performance of any duty or service.

Having considered all the evidence before me including submissions, I find that, in respect of the first element of mutiny, there is undisputed evidence that all the five accuseds on 28^th July, 1997; were subject to the Code of Military Discipline and in the events that occurred on that day, they, except Major Enuma were acting in a combination of two or more persons subject to that Code.

I am satisfied beyond reasonable doubt that all the four accuseds were acting in concert or together in executing Operation Stretim Ples.

The definition of mutiny in our Act is basically the same as the British Army Act of 1955.Mutiny is a collective offence.

In the case of R –v- Grant, Davis, Riley & Topley [1957[ 1 WLR 906; [1957] 2 All E R 694; the English Courts-Martial Appeal Court held:

“Mutiny is a collective offence which cannot be committed by one man. The true ingredients of the Army Act 1881 were collective insubordination, collective defiance or disregard of authority or refusal to obey authority.”

There is support in the Australian case of R –v- Ashton No 3 [1991] 1Qd R 443 where the Court of Criminal Appeal held:

“That the offence of mutiny involved a collective challenge to authority.”

I am satisfied beyond reasonable doubt that under the command of Capt Renagi who was ably supported by Capt Namah, Lt David and 2^nd Lt Osoba, Operation Stretim Ples, which was clearly illegal and unathorised by HQ PNGDF was executed. And I am satisfied beyond reasonable doubt that the events of the 28^th July, 1997; which have been described in the evidence in this trial did take place as described by the prosecution witnesses. The Commander, Brig.Gen. Leo Nuia was illegally detained under house arrest by armed troops. The armoured vehicle (SSV) was parked on the street opposite his residence with a mounted machine gun on its roof pointing to his house. Troops were armed with rifles and a RPG 7. One of the soldiers outside the Commander’s residence called out to the Commander that he was under house arrest. The Commander was released at approximately 5:30 pm that day.

Similarly, I am satisfied beyond reasonable doubt that at the same time that the Commander was being illegally detained under house arrest, Lt Col Carl Malpo was was also detained illegally under house arrest in his own house by 2^nd Lt Osoba and other armed troops on the orders of Capt Renagi. I am satisfied that 2^nd Lt Osoba pointed a pistol at Lt Col Malpo as Lt Col Malpo came to answer a knock on his door at about 0530 hours . There were vehicles going back and forth to his residence as part of this operation and that Lt David visited Lt Col Malpo's residence at one stage during the day. Lt Col Malpo was released at approximately 5:30 pm the same day by SFU officers and Major Enuma.

I am also satisfied beyond reasonable doubt that Lt Michael David went to the Force Operation Centre and the Communications Centre and ordered Major John Sehi and other duty personnel in both centres not to use any communication equipments. Lt David unplugged four telephones in the FOC and his orders to these duty personnel impeded the performance of duty or service in the Defence Force. He was armed with a pistol although he did not draw the pistol or use it to threaten any of these duty personnel. He was accompanied by two soldiers, one of whom was Pte Palaso Lee, a member of SFU.

I am further satisfied beyond reasonable doubt that Capt Namah went to the Murray Barracks Area Duty Office near the Wards Road gate and ordered the duty sergeant, Sgt James Meakoro not to communicate with any one. Capt Namah pulled out the telephone from its socket and took it away before returning it half an hour later.

His action also impeded the performance of duty or service in the Defence Force.

At the same time that armed troops were keeping the Commander,Brig Gen. Leo Nuia and Lt Col Malpo under house arrest, the Wards Road gate was also being manned by armed SFU troops.

I find that the act of holding the Commander, Brig Gen Leo Nuia and Lt Col Carl Malpo under house arrest amounted to mutiny pursuant to s.53 (a) of the Defence Act.

The Commander was duly appointed pursuant to s.193 (3) of the Constitution and s.6 (2) of the Defence Act. His appointment therefore was both constitutional and lawful. I find that on 28^th July, 1997, he was lawfully the Commander of the Defence Force and had the command and control of the Defence Force by law and still has now. There can be no question about his authority because his constitutional authority stems from s.201 (5) of the Constitution and his legal authority stems from s.10 of the Defence Act.

By virtue of his powers and functions, he had authority to issue orders, directives or raising instructions in respect of any matter pertaining to the Defence Force. By virtue of such powers and functions and as ultimate authority having command and control of the Defence Force, he established Special Operation Group and appointed Lt Col Carl Malpo as SO 1 or its commander, by a Command Directive on 11^th July, 1997, which document was not tendered into evidence because the Court was of the opinion that it touches on the security of the nation, but that both counsel have had the benefit of perusing it.

For these reasons I consider that at the material time. Both the Commander and Lt Col Malpo were both in lawful authority and the acts of holding them under house arrest in their respective homes were contrary to that lawful authority. I consider that s.53 (a) of the Defence Act has two parts to it. Two or more persons subject to the Code of Military Discipline must either overthrow lawful authority or resist lawful authority. Because of the view I have formed, I consider that the actions of the four accuseds were contrary to s.53 (a) and (c).

His Honour Bredmeyer, J in The State –v- Albert Ugunnie, Martin Taumu & Mathew Davai Moroua [1988-89] PNGLR 101, held inter alia that, for the purpose of s.53 (a) and (b), the “authority” to be resisted or disobeyed must be an authority or order actually communicated to the accused person”. With the greatest respect to His Honour, I do not agree with that statement, not in this case anyway. In my opinion, His Honour’s view may be correct in the circumstances of that case, however, I cannot reach the same view in the present case. As I have adverted to, the Commander’s authority is both constitutional and legal.

He has command and control of the Defence Force and he represents that authority in the Force. It is my view that the actions of the four accuseds and their men on 28^th July, 1997; was to overthrow that lawful authority. As I have already alluded to, under the circumstances, it was practically impossible for the Commander and Lt Col Malpo to issue any orders to the troops to withdraw from their illegal operation. To use that decision as the basis to find that the actions of the accuseds and their men did not amount to mutiny, is, in my view, quite illogical, absurd, irresponsible and a badly misconcieved principle.

All that I have alluded to relate to the four accuseds, Capt Renagi, Capt Namah, Lt David and 2^nd Lt Osoba. I will now discuss the involvement or otherwise of Major Walter Enuma.

From all the evidence before me, I am satisfied beyond reasonable doubt that Major Enuma was held in lawful custody at Boroko Police Station cells . On the early morning of 28^th July, 1997; armed SFU troops illegally forced his release from the cells. Following this illegal release, he was informed by the troops that he was being taken to Murray Barracks where there was an operation going on and he would be briefed there. He was briefed by Capt Renagi about 15 or 20 metres inside the Wards Road gate between 0500-0530 hours. His initial reaction was that he was shocked. He said the operation has already commenced prior to his arrival and briefing at the Wards Road gate at Murray Barracks. However, by his own evidence and from other evidence, the operation did not terminate until 5:30 pm that day. He said he did not take part in the operation, nevertheless, he did not ask or order Capt Renagi to call off the operation. Major Enuma was the most senior commissioned officer to Capt Renagi and Capt Namah. He did virtually nothing to stop the operation and in my view, he could have and he should have. He seemed to have the respect of some members of the Defence Force and I believe, with his leadership and prominence in the Operation Rausim Kwik in March this year, he could have impacted on the troops involved in this operation. One might say he was not an officer of the SFU, but it was not a coincidence that SFU troops forcefully and illegally released him from lawful custody at Boroko Police Station that same morning.

There is conflict in respect of the time regarding his release from Boroko Police Station and his presence at Murray Barracks. However, I consider that the evidence of time cannot be accurate. The significant point is that he was released and taken directly to Murray Barracks where Operation Stretim Ples was in progress. I would like to think that he knew about this operation and that he was taken there as a party to the planning and execution of it. However, from the evidence, I will give him the benefit of the doubt that he did not plan it and he arrived there after the operation had commenced.

Despite that however, I consider that, as a senior officer to Capt Renagi, his failure to ask Capt. Renagi to stop the operation and his failure to use his own initiative to stop the operation was fatal to his case which I will allude to later.

As far as all the accuseds are concerned, they have challenged the existence and operation of SOG. They have all alleged that SOG members were targeting and harassing members of the SFU and those soldiers who participated in the Operation Rausim Kwik in March this year. In fact it is their claim and defence that Operation Stretim Ples was executed because of the “illegal” activities of SOG members. All I can say is that what the accuseds have said against SOG are purely allegations. It is quite interesting to note that whilst all these were happening, they sat back and did nothing, to restrain by lawful means, what they said was happening to them. It is quite fascinating that if they claimed breach of their constitutional rights, they never enforced their right in a court of law.

I consider that their evidence run contrary to logic and the evidence of acting Chief of Staff, Col Eric Ani, is quite significant in this respect and his evidence has really not been refuted. As Chief of Staff, he had spoken to Major Enuma, Capt Renagi and Capt Namah himself and sometimes jointly, basically counselling them to cease what they were doing. He said these three accuseds’ actions were “irresponsible”. Irresponsible in that they did not have due regard for the uncertainty, the fear preventing people, general public and certainly the HQ from doing what they want to do. They made it difficult for the normal administration and management of the Force to take place.

The normal administration and management of the Force was not attended to by the Commander and his officers because they were preoccupied with the absence of command and control because of the activities of the three accuseds. The efforts of the Commander and his officers had to be diverted toward solving those problems.

The Commander’s evidence and the evidence of Col Tuat regarding “undercurrents” and that some soldiers were doing their own thing are consistent with Col Ani’s evidence. The Commander’s evidence regarding “mob-rule” is also consistent with Col Ani’s evidence. I do not think the accuseds can fairly claim the “holier than thou” principle and shift the blame on SOG members. SOG was a lawful body established by the Commander to counteract some of the accuseds’ activities, although Col Ani did not fully detail these. I do not think he needs to anyway, simply because the trial is not about SOG, and those SOG members alleged to have carried out “illegal activities” are not on trial. Whilst the accuseds are entitled to raise whatever defence they wish to raise, it is my view that some of the evidence the defence sought to establish are quite irrelevant. Any or all the allegations that have been made against some members of the Force who were allegedly members of SOG are therefore irrelevant.

Neither SOG and its members nor their activities are on trial here.

The accuseds have raised self defence, provocation and justification in this trial. These are statutory defences under the Criminal Code. In my view, they apply in appropriate cases because s.15 of the Criminal Code does not exempt members of the Defence Force. However in the present case, I consider that these defences do not apply and the accuseds cannot claim immunity from prosecution or are not excused from criminal culpability. The first two defence apply where assault is an element. However, if the accuseds assert that they were assaulted in May or June, they did nothing soon after the assaults or harassment were committed. They waited until 28^th July, 1997 and executed an illegal operation. How can they be justified in law ? In my view there can be no justification at all. If I accept that they had exhausted all avenues through the normal military chain of command, they had failed to invoke the inherent powers of both the National and Supreme Courts.

That right was available to all of them but they chose to ignore and waive it so they cannot claim that their illegal operation was justified in law. That claim is not only outrageous, but totally misconcieved.

Those defence have not been established on the balance of probabilities, and even if they were, the circumstances of this case are such that if those defence were upheld, it would be a mockery of justice. I hold that all the defence raised by the accuseds do not apply in this case. I find therefore that the accuseds did not act in self defence, there was no legal provocation and their actions were not justified in law.

There are two matters that I wish to briefly refer to before I summarise my findings of fact.

The involvement of lawyer Peter Donigi was not for the purpose of assisting the situation as it occurred that day. Of course his presence there was not at the request of the Defence Force, but at the convenience of the accuseds. If they had wanted legal assistance, why didn’t they invite the Attorney General? It was obvious that the accuseds were demanding amnesty from prosecution and the purpose of Mr Donigi attending at Military HQ that morning was to broker amnesty for the accuseds and all those soldiers who participated in Operation Rausim Kwik. He knew that the Commander was illegally held under house arrest, yet he went there to push for amnesty. Even at the Prime Minister’s briefing, he continued to force the issue of amnesty. Where was his sense of professionalism as a member of the legal fraternity ? His insistence on a contract to absolve the accuseds and others, despite opposing views by the Attorney General, must be condemned by this Court. There can be no doubt in any one’s mind that one of the principal agenda for the meeting on 28^th July called by the accuseds, was to force the issue of amnesty and it was no coincidence that he spoke on that subject and also on pardon. The accuseds’ assertion that Col Tuat, as Acting Commander had granted amnesty to those concerned, was not confirmed in his testimony. The idea of amnesty for the soldiers was an issue that day that was not called for discussion by either Col Ani or Col Tuat. It was an agenda brought up by the accuseds and Mr Donigi.

There is undisputed evidence that the present Prime Minister, Mr Bill Skate was briefed two days prior to the illegal operation, so he must have known what would happen on 28^th July. There is this perception, which, to my mind is a misconception, that the Prime Minister is the Commander in Chief of SFU. However, there is no constitutional or legal basis for this notion. Despite the fact that the SFU was created by a NEC decision, the status of the Prime Minister as Commander in Chief, must be questioned. SFU is a stragetic unit of the Papua New Guinea Defence Force. It is not a separate force by itself, independent of command and control from the Defence Force. The office of the Commander of the Defence Force is a creature of the Constitution and the law, ie the Defence Act. S.201 (1) of the Constitution specifically prohibits the existence of a Commander in Chief of the Defence Force, be it honorary or otherwise. How then is the Prime Minister of the country the Commander in Chief of the Special Force Unit, a unit of the Defence Force,subject to the command and control of the Commander of the Defence Force through the Chief of Operations ?

The evidence of Capt Renagi and Capt Namah that they had seen Prime Minister Skate as the Commander in Chief of the Special Force Unit on 26^th July is quite improper. Their evidence imply that the Prime Minister knew about this illegal operation. but did nothing to prevent it until it had been executed. If this is correct, the Prime Minister should also be charged with mutiny.

Given the involvement of the Special Force Unit in this illegal operation and also in the Sandline saga, is it worthwhile and wise to continue to have the SFU as part of the Defence Force ? It is my view that SFU ought to be disbanded immediately because it cannot be trusted. Besides, the Defence Force has two Recon Platoons within both battalions; the 1 RPIR based at Taurama and the 2 RPIR based at Moem. It is therefore not required and if we have not yet learnt any lesson from these two operations, it is high time we did. If there is an appropriate time to call on the government to disband the Special Force Unit, this is it.

From all the evidence before me, I make the following findings of fact:

1. Os 28tp> suly, u997 b997 between 0430 and 1730 hours, Operation Stretim Ples was executed at HQ Papua New Guinea Defence Force.

2. ;ټ C60; Capt Bopt Bola Renagi, acting Officer Commanding the Special Force Unit based at Goldie River, planned and executed that operation.

3. &##160;; C60; Capt Rept Renagi was supported by Capt BeNamah, Lt Michael David, 2nd Lt Linus Osoba, and other members of SFU.

4. &##160;; o60anf manf thencehence Fore Force, Bce, Brig Gen Leo Nuia was illegally detainetained in his house under house arrest between the time aforementioned.5.&##160;; Lt Col Carl Malpo, lpo, head head of Spof Special Operation Group was also illegally detained in his house under house arrest between the times aforementioned.

6. ـ Tme Coerander was held undd under house arrest by armed troops who had camouflaged paints on their faces and also sweat rags and hoods over their heads. They were armed with rifles, a7 andarmouehicle with with a maca machine hine gun mounted to its roof, was parked on the street opposite his house with the machine gun pointing to the Commander’s house.

7. & Lt. Col. Malp was held unld under house arrest by 2^nd Lt Osoba who was armed with a pistol and pointed it at Lt. Col. Malpo as he answered the knock by 2^nd Lt Osohere otherps around the houe house asse as well well.

8. &##160; Whilst the Commandemander and Lt Col Malpo were being held under house arrest, armed SFU troops manned the Wards Road gate.

9. ҈ L60; Lt Michael Dav dred Orce Oion Centre atre and ornd ordereddered Major John Sehi not to use any communication equipment to communicate with anyone . Lt David also en the nicatCentre and ordered Cpl Eddy Fae and five othe others ners not toot to communicate with anyone. At the FOC, Lt David pulled four telephones from their sockets, but sometime later, replugged them. Lt David relieved Major Sehi from his lawful duty and his orders impeded the performance of duty or service.His order to Cpl Fae and five others also impeded the performance of duty or service.

10. Calden Namah entered the Mthe Murray Barracks Area Duty Office and ordered the duty sergeant, Sgt James Meakoro not to communicate with anyone and relieved the sergeant and his men from lawful duty.Capt Namah unplugged the telephone from its socket and took it away then returned it after half an hour. His order impeded the performance of duty or service.

11. & Major Walter lter Enuma, who had been detained in police custody, was illegally forced out of the cells at Boroko P Station and taken to Murray Barracks where he was briefed by Capt Renagi,.sometime betweentween 0500-0530 hours Major Enuma then became aware of the operation, but did nothing as a senior officer to prevent it from continuing.

12. Capt Renagi, Napt amahMajd Major Enuma called a meeting at the FCR where all senior officers were forced to attend that meeting. The thccused no rity l to call a meeting of senior officers of the rank of Major ajor and abnd above. ove. The aThe accuseds were responsible for bringing Mr Peter Donigi to that meeting purposely to broker amnesty for and on behalf of those who participated in the Operation Rausim Kwik At that time, Mr Donigi was aware that the Commander was being held under house arrest.

13. he briefing of rhe Prime Mime Minister by the Chief of Staff, Col Ani, Mr Donigi was present and continued to push for amnesty fe sol, desoppos by Attorney General who was also present. Mr Donigi then attn attempteempted to d to hoodwhoodwinked the Attorney General into an agreement to achieve his objective.

14. &#The PMine ter,ster, Mr BiMr Bill Skate directed that the Commander and Lt Col Malpo be released and they were consequently released at about 5:30 pm.

15. ҈ e ng ofcg ofcers e rs e mornimorning ofng of 28th July; Capt Renagi outlined the objectives of the operation which is covered in Col Tuat&#s evi.

16. Enuma numa did ndid not anot actively participate in the operation by any overt act or verbal encouragement,but his presence may have boosted the troops morale. In any event, he did nothing as a senior officer to prevent the operation from continuing.

From these findings of fact, Capt Renagi who planned the operation himself, was supported by Capt Namah, Lt David and 2^nd Lt Osoba in the execution of the operation and the latter three accuseds received their tasks from Capt Renagi. They all acted in concert, if not, together. Pursuant to s.53 of the Defence Act and s.7 of the Criminal Code, they are all principal offenders.

I find that their actions on the 28^th July, 1997, individually and collectively, amounted to mutiny in pursuance of s.53 (a) and (c) of the Defence Act, and pursuant to s.55 (1) of the Act, I find each of them guilty of mutiny.

In respect of Major Enuma, I have given him the benefit of the doubt in so far as his participation or involvement is concerned. I have found that he did not planned or take part in the planning of Operation Stretim Ples. I have also found that despite his presence at Murray Barracks on that day, he did not verbally or physically take part in the operation or encourage it.

I consider that mere presence alone is not sufficient to find him guilty under s.55 (1) and that is the reason I have given him the benefit of the doubt.

Nevertheless, I consider that as a senior officer, he failed to use his utmost endeavours to suppress or prevent the mutiny that was being carried out by the other four accuseds and other armed troops. I am satisfied that at the Wards Road gate at Murray Barracks, he was briefed about the operation and, as an experienced senior officer, he should have ordered a stop to the operation, thus preventing it from continuing. Taking into account that the operation commenced at 0430 hours, and he was briefed approximately,half to an hour later, he made no endeavour at all to stop the operation.

I am satisfied of these facts and I find the accused, Major Enuma, guilty of mutiny as well. However, he is guilty pursuant to s.55 (2) (a) of the Defence Act, in that, he failed to use his utmost endeavours to suppress or prevent a mutiny, when he had knowledge that a mutiny was taking place.

I have arrived at these findings after considering all the evidence before me and observing the demeanor of all the witnesses. I make one important observation in this trial and that is, all the accuseds were very unimpressive in the witness box. They displayed an arrogant attitude when giving evidence on oath. They refused to answer pertinent questions and were directed by the Court to answer them. I find them very evasive, except for 2^nd Lt Osoba, who I thought regretted what he had done. Whilst, I acknowledge that all the accused persons are trained military officers and therefore must accept orders, I consider that in this instance, they knew or ought to have known that what they were embarking on was mutiny. In my view, it was quite difficult to accept their veracity.

Whilst I accept their evidence on their training, experiences, capability, and the fact that they are good military officers, I cannot say the same for their demeanor in respect of very vital evidence relevant to the issues before me, ie, issues relevant to the charge of mutiny.

In the final analysis, I have reached the conclusions I have in my capacity as both the judge and jury in respect of questions of law and fact pertaining to the charge of mutiny.

I therefore find the accuseds, Capt Renagi, Capt Namah, Lt David and 2^nd Lt Osoba guilty of mutiny pursuant to s.55 (1) of the Defence Act. In respect of Major Enuma, I find him guilty of mutiny, but under s.55 (2) (a) of the Defence Act.

Lawyer for Prosecution: Capt. M. Unagui

Lawyer for Accuseds: Parkop Harricknen & Associates