Public Prosecutor v Sokomanu [1989] VULawRp 4; [1980-1994] Van LR 420 (4 January 1989)

[1980-1994] Van LR 420

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Criminal Case No. 50 of 1988

PUBLIC PROSECUTOR

v

ATI GEORGE SOKOMANU
BARAK SOPE
MAXIME CARLOT
JOHN NAUPA
FRANK SPOONER
WILLIE JIMMY

Coram: Ward J

Mr Baxter-Wright, Public Prosecutor
M Boissery and M Tehio for accused

JUDGMENT

[CRIMINAL LAW - seditious conspiracy - incitement to mutiny]

The accused are charged as follows:

Count 1. Statement of Offence

Seditious Conspiracy - Contrary to sect. 64 Penal Code Act no. 7 of 1981.

Particulars of Offence

Ati George Sokomanu, Barak Sope, Maxime Carlot, John Naupa, Frank Spooner and Willie Jimmy sometime between 16th and 18th December 1988 in Vila, did enter into an agreement to carry into execution a seditious intention to over throw the lawful government of Father Walter Lini.

Count 2. Statement of Offence

Incitement to Mutiny - Contrary to sect. 60 Penal Code Act No. 7 of 1981.

Particulars of Offence

Ati George Sokomanu, John Kalotiti, Barak Sope, Maxime Carlot, John Naupa, Frank Spooner and Willie Jimmy did on 18th December 1988 in Vila for some traitorous or mutinous purpose, endeavour to seduce persons serving in the Police Force of Vanuatu and Vanuatu Mobile Force from their duty and allegiance to the Republic.

Count 3. Statement of Offence

Administering the taking of an unlawful oath - Contrary to section 5(1)(a) Public Order Act No.11 of 1974.

Particulars of Offence

Ati George Sokomanu did sometime on 18th December 1988 in Vila, administer an oath to Barak Sope, Maxime Carlot, John Naupa, Frank Spooner and Willie Jimmy purporting to bind the said Barak Sope, Maxime Carlot, John Naupa, Frank Spooner and Willie Jimmy to engage in a mutinous or seditious enterprise, or to obey the unlawful orders or commands of the said Ati George Sokomanu.

Count 4. Statement of Offence

Being present at the administering of an unlawful oath - Contrary to section 5(1)(a) Public Order 1974.

Particulars of Offence

Ati George Sokomanu sometime on 18 December 1988 at Vila was present at and consented to, the administering of an oath to Barak Sope, Maxime Carlot, John Naupa, Frank Spooner and Willie Jimmy purporting to bind the said Barak Sope, Maxime Carlot, John Naupa, Frank Spooner and Willie Jimmy to engage in any mutinous or seditious enterprise, or to obey the unlawful orders or commands of the said Ati George Sokomanu.

Count 5. Statement of Offence

Taking an Unlawful Oath - Contrary to section 5(1)(b) Public Order Act No. 11 of 1974.

Particulars of Offence

Barak Sope, Maxime Carlot, John Naupa, Frank Spooner and Willie Jimmy sometime on Sunday 18th December 1988 at Vila, you did make a written statement expressing a seditious intention, in that you did sign a written form of oath of allegiance purporting to bind you to an unlawful interim government.

They appeared before the Supreme Court on 20th February 1989 and pleaded Not Guilty to all charges. The trial took place before the Judge and two accessors.

This is an unusual case; not just because of the charges which only rarely come before the courts but also because of the status of the defendants and the significance of the events involved.

The first accused was, at the time of the offence, the President of Vanuatu, the second, third and sixth accused were, until a short time before, members of Parliament; the second accused with the government of which he has been a minister, whilst the third and sixth accused were the leader and deputy leader respectively of the Opposition party. To complete the picture, the fourth accused is a businessman who has been a member of Parliament, the fifth accused is a senior medical practitioner who has twice unsuccessfully stood for Parliament and the seventh accused was, at the time, the private secretary to the President.

It has been suggested by M. Boissery and M. Tehio that this is a political trial. I am not sure exactly what that means but if they are suggesting that, in some way, these men are being prosecuted for improper political reasons and the trial, as a result, is different from other trials in this court, then they are wrong. Of course, by the very nature of the charges, the background to the case as a whole and the people charged, there is a political content to the evidence. It was a political act by the accused but the result was, according to the prosecution case, the commission of a series of criminal offences. As a result, the accused face normal criminal charges that are being tried under the normal rules of criminal law and procedure.

There is very little dispute about the prosecution evidence which relates to a few days in December 1988 but it is necessary to go back a little further to set the scene.

Earlier in 1988 as a result of an attempt by the second accused and four other members of the governing Vanuatu Party to move a vote of no confidence in the Prime Minister, Fr. Lini, all five were deemed to have resigned from the party and, as the result of a provision of the Members of Parliament (Vacation of Seats) Act which has since been declared to be unconstitutional by the Court of Appeal, they lost their seats. On the day the Speaker was to announce this, they and the Opposition led by the third accused stayed away from Parliament. The result was that 18 members of the Opposition also lost their seats. The original five, despite succeeding in their appeal, subsequently lost their seats. Attempts were made to raise the reasons for this at the trial. They were not relevant but the whole incident is clearly one of a number of matters giving rise to a sense of grievance felt by some of the accused. I accept that is genuinely held and I have allowed for it when considering their evidence and, in particular, the manner in which it was given.

By-elections were held and were boycotted by most of the Opposition parties notably the Union of Moderate Parties (the party of the third and sixth accused) and the Melanesian Progressive Party (the party recently formed by the second accused). The result of the boycott was, not surprisingly, that the Government Party increased its representation in Parliament very substantially.

The first sitting of the new session of Parliament after these by-elections was on the 16th December and, in accordance with the usual procedure, the session was to be opened with a speech from the President after which he would leave the Chamber escorted by the Speaker. The House was then to rise for a short recess to enable the Members to take tea with the President. This all followed an apparently well established pattern. However the President's speech contained a long list of matters that were causing him concern about the state of the country and the way it was being governed and a number of suggested violations of the Constitution. It concluded with the statement that he was dissolving Parliament to prepare for a general election in February 1989. He asked everybody to remain peaceful and said there would be an interim government to look after matters of state.

When he finished, the President left a no doubt stunned Chamber, walked through the building and left without waiting to speak to the Members.

That speech was broadcast live on Radio Vanuatu as was the speech of the Prime Minister after the sitting resumed in which he said the Government did not accept this was a lawful dissolution. Parliament then continued to sit that day and the following day which was a Saturday.

It is of interest to note that the Court has been told that the Speaker, in the meantime, caused an ex parte application to be made to the Supreme Court under article 51 of the Constitution for a declaration as to the constitutionality of the President's actions. A ruling was given on Monday morning (after the events with which this case is concerned) in which it was declared the President had no right to dissolve Parliament as he had done unless he was acting on the advice of the Council of Ministers.

The prosecution case was that, shortly after Parliament resumed its sittings on Friday morning and while the Prime Minister was speaking, the secretary to the Clerk to Parliament, Marie Kalulu, received a telephone call from a man telling her to take a note to the Speaker to say he must stop the sitting because the President had dissolved Parliament and that the villagers were angry and would come. She had frequently heard him on the Radio and in Parliament and she recognised his voice when he telephoned.

Much later the same evening, the deputy Director of Radio Vanuatu, Jonas Cullwick, received a telephone call from the President asking for air time to broadcast to the nation. Cullwick said he must check with the Director. Shortly afterwards he was telephoned again by a man who introduced himself as Barak Sope and who made the same request adding that he was with the President and giving a number at which Cullwick could give his answer. Cullwick later telephoned, spoke to Sope and told him the President could not make a broadcast. Sope asked Cullwick still to let them go ahead. He refused and Sope said they would come down anyway asking Cullwick to tell the security guard to let the President's car in. Cullwick knows the President and Sope and recognised both their voices. He decided it would be expedient to close the station, by which I understand he means it stopped broadcasting, and, as he went to drive home, he saw the President's car stop at the gate. He could not see who was inside but after the occupant held a conversation with the member of the VMF at the gate, it was driven off.

Those telephone conversations form the only substantial dispute on the facts. Barak Sope denies making either call then or at any time. Sokomanu admits the call to Cullwick, accepts Cullwick's account of the contents and also agrees with the incident at the gate but is adamant that it all took place on the evening of Sunday 18th not Friday as Cullwick stated.

I have considered all the evidence relating to these calls and I am satisfied beyond any doubt that Kalulu and Cullwick are both truthful and accurate save for the date of the calls to Cullwick. He expressed some uncertainty about the date and I accept, therefore, Sokomanu's contention that they were on Sunday.

There was no evidence of activity on the party of any of the accused on the Saturday but, on Sunday, 18th, the President telephoned Pastor Maraki at about 9.45 am asking him to come to the President's office for a ceremony. When he arrived, he was met by the President who explained that he was swearing in his interim government. Besides the President and the Pastor, there were present at the ceremony, all the remaining accused, the President's bodyguard and an Australian television crew complete with cameras.

Apart from Kalotiti, who was there in his capacity as private secretary, the remaining accused have all testified to the fact that they were telephoned that same morning by the President and asked to attend. They all insist that was the first intimation they were to go to the President's office or that they were to serve in an interim government.

If that is the case, it must be said that the President had picked his men well because despite the short notice, each agreed, took and signed an oath of allegiance and the President signed an instrument of appointment. Had any declined, there may have been some confusion because the oaths and the instruments of appointment had already been typed with the names of the ministers.

All were on the headed note paper of the office of the President:

"Your Excellency,
I, ............................ do hereby swear,
That I will uphold the Constitution of the Republic of Vanuatu and the duties you have bestowed upon me and that I will carry out these duties without prejudice and with impartiality,
so help me God."

Each person filled in his name and then signed at the end over his typed name and the date.

The duties referred to were set out in the instrument of appointment. There were all similar in form and as an example, I quote that of Sope, Ex 9.

"Instrument of Appointment
I, Ati George Sokomanu, duly elected President of the Republic of Vanuatu, do hereby appoint Mr Barak Tame Sope as Prime Minister and Minister responsible for Foreign Affairs, Justice and Immigration on this 18th day of December, 1988."

It is then signed by Sokomanu over the typed legend "His Excellency Ati George Sokomanu, MBE President of the Republic of Vanuatu" and the stamp of the President.

The ceremony over, Sokomanu, Sope and Carlot held a short conference with the Australian journalists and they then, with the except of Naupa, went to the President's house for lunch. According to all the accused present, that meal was short and remarkable only that, despite the momentous events of the morning and the fact they had all heard by then that the Lini government was not accepting the validity of the dissolution of Parliament and was continuing to claim to be the legal government, the interim government was not discussed at all except to arrange a meeting the following morning at 10.00 am.

Equally remarkable was the fact that, despite the Lini government stance, it did not cross the mind of any of the accused to wonder how he was going to deal on Monday with the fact there would be other men claiming the same portfolios and offices. However, as it happened, all were arrested before they had to face the problem.

It also caused me some surprise to hear that, with the exception of Sokomanu, none of the interim government ever thought about the police or the VMF and whether there may be problems over their allegiance.

However, the President certainly had. On the Friday following the dissolution, he told Kalotiti to telephone the Commissioner of Police and ask him, the Deputy Commissioner and the Commanding Officer of the VMF to attend on the President in his office. That was confirmed in a letter, Ex. 22, written by Kalotiti but the request was apparently ignored by the officers.

On Sunday afternoon, the President tried again. This time he wrote a circular addressed to the members of the Police and VMF. It was checked for spelling mistakes by Kalotiti, typed and photocopied.

The circular is the basis of the second count. It is on the headed notepaper of the Office of the President and I reproduce it in full.

"Presidential Circular
18/12/88
To: All members of the Police Force,
All member of the Vanuatu Mobile Force.
I write to you in my capacity as President of the Republic of Vanuatu and Head of State and as upholder of the Constitution and symbol for unity of our nation.
On Friday, 16th December, 1988, in accordance with article 26(3) of the Constitution I dissolved Parliament. On Sunday 18th December, 1988, I formed the Interim Government whose paramount objective is to take the country to a general election. Mr Barak Sope is the leader of the Interim Government with Mr Maxime Carlot, Mr John Naupa, Mr Willie Jimmy, and Doctor Frank Spooner.
If the former Parliament Members wish to challenge my decision, they can only do so through the Supreme Court in accordance with Article 51 of the Constitution. Now they are no longer members of Parliament nor remain in Government.
Your continued support and allegiance to the dissolved Lini administration is illegal and may result in your dismissal.
You have 24 hours in which to make your decision and if I do not receive any answer by then, I will be seeking military help from outside to dismantle and disarm the Police force and the Vanuatu Mobile Force.
If you decide to co-operate you will remain in your present capacity, otherwise another police and paramilitary force will be formed that will be fully armed if necessary.
With all sincerity, I ask you for your consideration and co-operation.
Thank you.
His Excellency Ati George Sokomanu,
President of the Republic of Vanuatu."

That afternoon Kalotiti went to the Police Station and distributed copies to the officers on duty. He told them to read it and telephone State House if they had any questions. He then went to the VMF camp and attempted to distribute further copies. He was unsuccessful and, after a short chase and struggle, he was arrested. That day and the following days, the remaining accused were also arrested.

All the accused, except Sope, made statements to, or were interviewed by, the police under caution and I need refer to them no more than to say they reflect the evidence given by each accused to the Court and I note that in each accused's favour.

Finally the prosecution evidence described a search of Sokomanu's house and office which revealed a number of documents including the oaths, instruments of appointment, letters to Radio Vanuatu and the Commissioner of Police and the circular to the police and VMF. A search of Sope's office revealed an assortment of documents relating to arms and arms deals. It seemed initially that these had considerably wider significance than the way the prosecution placed their case by the end and I shall return to them briefly later when dealing with the case against Sope.

It is convenient before I pass to the defence cases to deal shortly with the charges.

The prosecution case on count 1 is that the agreement to form an interim government to replace the Lini Government was clearly an agreement to carry into execution a seditious intention. Seditious intention is defined in section 63(1) and the attempt to overthrow the lawful government of Fr. Lini falls into paragraphs (a) (b) and possibly (e) and (f).

There is a qualified defence in section 63(2) which has not been advanced by the defence but, in view of the motives suggested by Sokomanu in his evidence, I should state that I have considered it and am satisfied the prosecution has disproved any such defence in the case of each of the defendants.

The offences under counts 3, 4 and 5 require a mutinous or seditious enterprise. It seems that a seditious enterprise must mean any of the intentions listed in section 63(1) and I have so taken it.

'Mutinous' is not defined in the Penal Code or the Public Order Act. I have been guided by the definition and explanation of mutiny given by Lord Goddard J in R. v. Grant and Others [1957] 2 All ER 694 @ 696. Mutiny is "collective insubordination, collective defiance or disregard for authority, or refusal to obey authority" and, quoting with approval the Manual of Military Law, "Mutiny implies collective insubordination, or a combination of two or more persons to resist or incite others to resist military authority" and he later further explains that insubordination means a refusal to subordinate oneself to authority.

It seems to me that the prosecution are basing their case on an oath to engage in a seditious enterprise or to obey the unlawful commands of Ati George Sokomanu and no question of a mutinous enterprise applies in counts 3, 4 and 5.

Count 6, under section 65, requires of a written station as defined in 65(2) and I am satisfied that the signing of the oath was a sufficient statement for this purpose. The prosecution case is that the wording of the oath read with the duties in the instrument of appointment shows a clear seditious intention as it bound the taker to the interim government.

The case on count 2 rests on the circular letter, Ex. 23, against all the accused, and also the letter Ex. 22, against Sokomanu and Kalotiti. I have already given the meaning I attach to mutinous. Traitorous I take on its meaning in ordinary English as meaning betrayal of a duty and allegiance.

The accused have all admitted the acts necessary to make out the offence on each count and the defence have based the cases of each on the question of their intention.

Thus, on count one, there is no dispute that the first six accused agreed to form an interim government to replace that of Fr. Lini. That agreement was certainly made and started to be carried into effect on Sunday 18th by all those accused. The Court may find proof that the conspiracy in the case of some accused was entered earlier by inference drawn from the conduct of the parties. Where that applies to a particular accused, I shall refer to it when dealing with his case.

On counts 3 and 4, Sokomanu has agreed he decided the form of the oaths and arranged for them to be typed and set up the ceremony at which they were sworn, and, on count 5, the second to sixth accused all admit taking the oath. On count 6, the same accused admit to signing the oath and the form of the oath is admitted also.

On count 2, Sokomanu admits he drafted the contents of the circular and instructed Kalotiti to distribute it and Kalotiti admits doing so knowing of the contents. Sokomanu also admits giving the instruction to Kalotiti that resulted in the telephone call and letter, Ex. 22, and Kalotiti admits writing it. There is no dispute about those facts by the remaining accused.

Thus the question for the Court will be to consider the mens rea of the accused in each case and I will deal with that after I have outlined Sokomanu's case.

Before the pleas were taken, M Louzier raised three matters which he said were preliminary points. I have ruled on two but left the third because I felt it was not properly raised then. In that the defence urge the President did have the power under the Constitution to dissolve Parliament, dismiss the Lini Government and appoint an interim administration. Clearly, if they are correct, it provides a defence to all the charges.

As I have mentioned, this has already been ruled on by this Court in its civil jurisdiction. Whether that binds me sitting in the criminal jurisdiction is a moot point. However, I have heard submissions on the matter and considered the point afresh. It is quite clear that the powers of the President to dissolve Parliament are contained in article 26 of the Constitution. He has no other and, to carry out that power under sub article (3), he must act on the advice of the Council of Ministers. Without that he cannot do it. In this case where it is agreed he had been given no such advice, he was acting unconstitutionally and the dissolution was, therefore, unlawful and void.

Even when he dissolves Parliament lawfully, there is no power to appoint an interim government as he has done here. It is clear from articles 43 and 42 that the power to govern during the period from the dissolution to the election of a new Prime Minister and Ministers holding office at the dissolution. His actions offend the provisions of the Constitution in other ways also which I shall refer to when dealing with Mr Sokomanu's case.

M Louzier, and also Sokomanu, claimed that the President had some unspecified and undefined, inherent discretion to act as he did. Mr Louzier urged this point more than once during the trial persuasively and at considerable length undaunted to the end by the lack of authority in his favour and blithely ignoring the provisions to the contrary. I have no doubt at all that the President had no such power but the question for the court in this trial will be whether the accused realised that or whether they may have believed the contrary.

I pass, therefore to Sokomanu's case.

He gave evidence on oath and was a fluent and confident witness. He started with a lengthy account of the matters that were causing his concern in the months up to December. They were the matters of which he spoke in his speech on 16th December. I do not need, despite valiant attempts by M Tehio to persuade me to the contrary, to consider the merits of those concerns. I take it, in Sokomanu's favour at this stage, that he was genuinely and deeply concerned at the state of the country as he went to open the Parliamentary session. He complained about lack of information being passed to him by the Prime Minister in breach of his duty under article 37(2) of the Constitution and that isolation no doubt contributed to the feelings he harboured.

He then outlined the events that were demonstrated in the Prosecution case. He explained that, at the time of the speech dissolving Parliament, he had decided who was to be in the interim government but told no one until the Sunday morning. He was asked why he had not and said he, as President, had decided and there was no reason why he should tell anyone.

He agreed he had twice before, in 1983 and 1987, dissolved Parliament. Both times were under art. 26(3) but he insisted he had never received any advice from the Council of Ministers. He maintained this stance for some time even after he had been shown the reference to it in his proclamations but eventually agreed it had been given then. He also agreed that there was no special interim government sworn in on these two previous occasions.

As far as the Police were concerned, he told the court he was not worried by the failure of the Commissioner, Deputy Commissioner and Commanding Officer of the VMF to come and see him in answer to his request and insisted it did not cause him to question their integrity or honesty although he did realise it may mean they were still supporting the Lini Government. It was because of their failure to come and speak to him that he wrote the circular letter after lunch on Sunday. The purpose, he insisted, was simply to test their loyalty; to let them declare for him if they wished and he had no intention of bringing in any overseas force if they chose not to do so. That, he said, was a bluff.

Despite the fact that the felt the need by lunch time on Sunday to take the step of writing the circular, he saw no reason to tell his new Prime Minister, Sope or his Minister of Home Affairs, Carlot, and felt it could wait until the meeting on Monday.

Later that Sunday he telephoned Radio Vanuatu and then drove to Broadkas Haus as Cullwick described. Sope was not there but came to his house shortly after his return and was arrested a little later.

His defence is simply stated. He believed he had acted lawfully and within his powers and so there was no lawful government. He had assumed full executive power and so he had no seditious intent in count one, he was not endeavouring to seduce the disciplined forces from their allegiance for any mutinous or traitorous purpose or at all and the oaths were neither mutinous nor seditious nor were his commands unlawful because he was, at that stage, the lawful power.

The same defence is raised by all the accused (with an additional factor in the case of Kalotiti) and I must now deal with the question of intent.

I have ruled that Sokomanu was not acting lawfully and so the prosecution simply argue that, as this defence is based on a mistake of law, it cannot afford a defence to any of the accused. I feel that is a misstatement of the position here. In order to explain it, I shall refer only to count one but the same principle applies to all the charges. Count one charges a conspiracy to execute a seditious intention namely to oust the lawful government of Fr. Lini.

The definition of conspiracy in our law is found in section 29 of the Penal Code and is a slightly narrower definition than Willes' J classic statement of the common law but the principles are the same and apply here.

It is an agreement by 2 or more people to do an act the doing of which would constitute a criminal offence. It is sufficient simply to prove that. The prosecution must prove the accused intended to carry out that act; it is not necessary to go on to prove he knew it was criminal. Neither, therefore, can the accused seek to exonerate himself by saying he did not realise the agreed act offended the criminal law. That, in relation to conspiracy, is what is meat by the statement in English law, enacted in our section 11(1), that ignorance of the law shall be no defence to a criminal charge.

In this case, the accused are charged with conspiracy to execute a seditious intention. The court must be satisfied the conspirators knowingly agreed to carry out any of the matters listed in section 63(1). If that is proved, the offence is complete. Clearly an attempt unlawfully to oust the legitimate government embraces more than one of those definitions of seditious intention. If the defence claimed it did not realise such an unlawful act was criminal, that would give them no defence because of section 11(1). But that is not the defence case. What they claim is that, because of their belief in the lawfulness of the President's actions, they were labouring under a mistake of fact, namely, that there was no lawful government at that time; all executive power having been assumed by the President.

Section 12 allows mistake of fact as a defence, if it consists of a genuine belief in any fact or circumstance which, had it existed, would have rendered the conduct of the accused innocent. If the circumstances had been that there was no lawful government, they could not have the necessary seditious intentions in section 63. Thus, a genuine belief in that circumstance equally prevents the necessary mens rea.

Although the mistake of fact was based on a misunderstanding or ignorance of the effect of another part of the law entirely, namely the Constitution, it does not prevent it amounting to a defence of mistake of fact in relation to the offences with which they are charged thus negativing their guilty intent.

The maxim 'ignorantia juris non excusat' cannot be stretched, with great respect to Mr Baxter-Wright, to mean that, because a mistake of fact has its roots in ignorance of a law entirely separate from the criminal law, it will act as a bar to a lawful defence on a criminal charge.

The question for the court in relation to the defendants, therefore, is whether, on the evidence, it feels the defendants or any of them may have held such a genuine belief. To decide that, it must consider all the circumstances relevant to the case of each accused.

The same question applies to all the charges and if the answer is that an accused's belief may have been genuine, he must be acquitted on all charges. If, on the other hand, the court is satisfied beyond a reasonable doubt that he had no such genuine belief, he is guilty on counts 1, 3, 4, 5 and 6 as appropriate and, in the case of Sokomanu on count 2 also. Count 2 in relation to the remaining accused depends additionally on other matters I shall deal with when discussing their cases.

What, then, are the circumstances the Court should consider in deciding whether Sokomanu held such a genuine belief?

He told the court in some detail his educational and work background. I summarise it with the words he accepted from the Public Prosecutor that he had effectively spent the whole of his adult life in administration and politics. He had been abroad many times, sometimes to study and sometimes on official duties.

He, Sope and Lini were all involved in the move for independence from the early days and he was closely involved in the drafting of the Constitution. In fact he suggested he could be described as a joint author.

Could the court possibly, against that background, consider he would be unaware of the provisions? The whole basis of the Constitution is a parliamentary democracy. Article 4(1) states that national sovereignty belongs to the Ni-Vanuatu people which they exercise through their elected representatives and the provisions of the succeeding chapters establish a democratic Parliament from which the government must be drawn. It is clear the authors of the Constitution intended the Head of State to be a symbolic post with few direct powers. What powers he does have largely depend on advice from, or consultation with, other bodies. It may be that his power to refer bills and regulations to the Supreme Court could justify Mr Sokomanu's claim that the President is the guardian of the Constitution but his position is largely symbolic.

Could he have failed to appreciate this? He had held this high post under the Constitution for nearly 10 years. For a very short time previously, he had been an elected member of Parliament and, before that, a member of the Government of National Unity. He had twice before dissolved Parliament and proclaimed a general election. He certainly was familiar with the provisions of the Constitution. During his evidence and his speech to Parliament, he showed familiarity with the provisions relating to the Leadership Code and the Ombudsman, articles 26 and 37(2), the Land provisions and Fundamental Rights. He was correct in his timing of the general election.

Yet he now tells the court that he genuinely believed he had the power to override the provisions of the Constitution, sweep aside the elected government and unilaterally appoint another composed exclusively of people who were not even members of Parliament. His additional claim that he did it to try and unite a divided country is incredible.

Mr Sokomanu insisted to the court that he had the power to act as he did. Despite the firmness of his repeated assertion of this fact, he was never able to point to any authority except article 26(3) where both he and M Louzier insisted the use of the word "may" meant he could dissolve Parliament without the advice of the Council. Even if he did believe the word could be stretched into such a distorted meaning (and I do not accept for one moment he did) he has been unable, despite repeated questions, to point to any word of the Constitution whereby, after the dissolution, he could usurp the elected government and replace it with one appointed by himself made up of people from outside Parliament. This offends against so many of the provisions of the Constitution (e.g. articles 4(11), 37(1), 39, 40(1), (2) and (3), 42, 43 and 64) that I am perfectly satisfied he knew full well he was acting unlawfully.

Thus his defence of a genuine belief that the government had been dissolved fails. He has admitted everything else. On count one I am satisfied beyond any doubt whatsoever, that he agreed with some or all of Sope, Carlot, Naupa, Spooner and Jimmy to execute an act with a seditious intention namely to overthrow the lawful government of Fr. Lini which embraces definitions in sections 63(1)(a), (b), (e) and (f). He is guilty on count one.

Count three follows. The oath was clearly unlawful binding, as it did, the takers to allegiance to an unlawful government. Sokomanu drafted the oath, arranged the swearing ceremony and drafted and signed the instrument of appointment which, read with the oath, makes clear the duties of which the oath refers. I am satisfied beyond any doubt he is guilty of administering that oath. I do not need therefore to consider count 4.

In count 2, he wrote and arranged to distribute a circular that was plainly intended to seduce the members of the forces from their duty and allegiance to the Republic as represented by the elected government of the people. The lack of response by the commanders of the forces to the earlier summons to see him made it abundantly clear, if anything beyond Exhibit 23 itself is needed, that, had the members of these forces followed the course advocated in the circular, it would be insubordination and that is a mutinous purpose. He is guilty on count 2.

I pass now to Mr Sope. He told the court of the events at the time. He insisted he had no contact with Sokomanu until he received a telephone call some time after 10.30 on Sunday morning. He was at the village on 16th at the time of the telephone call to Marie Kalulu and had nothing to do with it. Although he agreed he had been in town before Parliament sat that day, he knew nothing of the plan to dissolve Parliament and only heard it from villagers and on the midday news.

On the Sunday he was simply told to go in a suit to the President's office and, when he arrived, the others were there. The President explained to them all at that time what he intended and Sope fell in with it.

I pause there to make the comment, which applies to the other accused as well, that it was a strange situation. The President must not only have prepared the oaths and instruments of appointment in advance of any agreement by the people named in them but he also asked Pastor Maraki to come before he knew if any of them would be there. Equally the television team must have been asked to come to a ceremony which, at that time, could have amounted to nothing. As I have said that applies to all the accused but with greater force, it seems to me, in relation to Sope. He was to be Prime Minister; the principal participant as it were. If he had declined, the whole occasion would have gone flat and yet, by the time he was asked to attend, most of the other were at or travelling to the office. Even when he was asked to come he was not told he was required until minutes before the ceremony was due to start. Despite such an unexpected course of events, he was able, minutes later, to answer questions of the Australian journalists in his new capacity of Prime Minister. Sope told the court he could not remember what questions he was asked. Whether that is correct or not, it must have been a very creditworthy performance to have answered questions from foreign journalists as leader of a government when less, probably, than 30 minutes before he had no idea he was even to be involved. I have to say that the situation does not have the ring of truth to it. It is relevant also to note in this context, that the last answer in Naupa's interview with the police includes the statement "I heard Barak Sope told Maxime Carlot that they had 22 countries informed about the Interim Government." Having been adopted by Naupa in court and not challenged on behalf of Sope, it is admissible in his case. As Naupa was only present for the swearing-in ceremony, it must have been made at that time.

Sope says there was some talk at lunch about the situation but no discussion of any importance and he had to leave quickly because his daughter was back from abroad. Any father appreciates the excitement of such a homecoming but it was sufficient in Sope's case to put any thought of the possible problems and challenges of his new position out of his mind totally.

Later in the evening he heard that Kalotiti and (wrongly) Sokomanu had been arrested. He went to the President's house followed by police and was arrested. He made no telephone calls to Radio Vanuatu nor was he present when they were made and the thought that it might be useful to tell the country over the radio about his and his ministers' appointments never crossed his mind.

He also told us of his background. I need not repeat it all. Suffice to say that he had been involved in administration at a very high level for many years including special missions abroad for the Government and negotiating such things as the mutual defence agreement with Australia. He was secretary-general of the Vanuaaku Party from 1974 to 1988. He was a member of Parliament from 1983 to 1988. He has been Government Whip and Chairman of the Privileges Committee and, for a few months, a Minister. He also served as a member or chairman on the board of various commercial ventures.

At independence he had the responsibility for forming the VMF. He was also on the Constitutional Committee and last year, as he reminded the Court, he had taken part in a case that involved a detailed examination of a number of constitutional provisions. In that case, he was, of course, represented by a vary able lawyer but it was a potent reminder of the importance of the Constitution in all political matters.

Against that background, he tells the court that, when he heard the news on Friday and when he took the oath on Sunday, he never doubted the President's power to act as he did.

I simply cannot accept that. His knowledge of the Constitution was extensive. He, like the President, knew the whole basis of the Parliamentary process in the country. I am satisfied beyond any doubt at all that he knew perfectly well the whole plan was unconstitutional and the President was acting outside his powers. He knew, as a result, that the Lini Government was the only legal government and he was willingly part of a scheme to unseat it. I also add as it is relevant although not necessary in order to decide his guilt, that he was involved with the President in this matter at least on Friday 16th, and that his account of knowing nothing about it until Sunday is untrue. It is clear on the authorities that the agreement or the extent of the agreement in conspiracy is frequently only ascertainable by inference. The evidence as a whole drives me to that inference.

Apart from the intent, he has admitted all the ingredients of counts 1, 5 and 6 and he is convicted on each.

Count two needs different consideration. The prosecution base their case against this accused, Carlot, Naupa, Spooner and Jimmy on section 33 of the Penal Code.

"Any accomplice or co-offender in the commission or attempted commission of an offence shall be equally responsible for any other offence committed or attempted as a foreseeable consequence of the complicity or agreement."

There is no evidence that Sope saw the circular letter before it was sent out to the police and VMF. In order to convict, the court must be satisfied to the required standard that it was such a foreseeable and apparent consequence of the seditious conspiracy that he must or should have realised it would follow.

In Sope's case, his background of dealings with resistance groups in other countries and the arranging of arms deals for them, his part in the Jimmy Stevens affair and the organising of the VMF at independence together with my decision that he was involved in this with Sokomanu at least by 16th December, drives me to the conclusion without any reasonable doubt that he not only should have foreseen this as a consequence but he was aware that it was an essential step. I also bear in mind that, despite his attempt to dissuade them, he had to obey the police order to leave the vicinity of the Parliament on 16th - a very recent example of the need to have the support of the police.

I am sure a man of his experience and background would not have contemplated taking the post of Prime Minister in an illegal government (as I have found he knew it was) without intending to take steps to obtain the support of the police and VMF.

He is convicted on count 2.

Before I leave Mr Sope, I feel I should refer to the evidence of arms deals. As I have said, it appeared to be a matter of some significance when first raised by the prosecution. However, Mr Sope not only pointed to the age of all the documents (including the undated letter of intent the post box number of which showed it to be contemporary with the dated documents) but also insisted those had all been part of his official work on a Government Security Committee. Little more has been said by the prosecution and, in the end, it is suggested the only value is in relation to count 2 in so far as it shows Sope knew how and where to obtain arms. I attach no weight to that evidence and cannot see how it helps the prosecution case. If the police and VMF had transferred their allegiance to the interim government, they would presumably have brought their weapons. If they had not come across, there would not have been sufficient time even to make enquiries of these sources let alone to purchase weapons for some other force. The only significance I could attach to the "arms evidence" was that Mr Sope gave an explanation that the prosecution no longer appear to dispute and that is a matter to Mr Sope's credit when I considered his case.

Carlot is one step away from many of my comments in relation to Sope.

His case, also, was that he was only contacted on Sunday at about 10.30 am. He arrived to find everything ready and that he was deputy Prime Minister and Minister of Home Affairs, Land, Energy, Agriculture, Forests and Fisheries.

He told the court he did not know his actual role until some of the others had taken the oath and he was told the portfolios that were to go to him. Despite the startling position he found himself in, he also was able to answer questions by the television journalists a few minutes later but, like Sope, has a complete lack of recall about any of the topics discussed.

He said he never doubted the President had power to dissolve Parliament. He argued that the word "may" in section 26(3) means he could dissolve Parliament without the advice of the Council of Ministers. Although he knew the constitutional provisions about the appointment of the Prime Minister and Ministers and that there was nothing to cover the appointment of an interim government from outside Parliament, he still believed the President had power to do this.

Once again his background and experience is inconsistent with such a view. He also was educated here and abroad. Having taught and achieved the position of Headmaster, he went into administration in 1966.

He was chairman of the first representative assembly in 1978 and the Minister of Home Affairs in the Government of National Unity. He has been a Member of Parliament for many years and was Speaker from 1980 to 1983.

He was secretary-general of his party, the UMP, and became leader in early 1988.

He also was involved in the drafting of this Constitution as a member of the Constitutional Committee. He told how there had been a dispute at the time between the Vanuaaku Party and some others as to whether there should be a separate President and Prime Minister or one overall office. Few things would ensure more careful consideration of the powers of each. He agreed they decided on separate offices of Prime Minister and President. Could he possibly, in those circumstances, have failed to realise the importance of the decision to give the power to Parliament? The powers of the President were extremely limited and he knew that.

Mr Carlot showed himself in the witness box to be intelligent and knowledgeable about the Constitution and the principles behind it. He was pressed in cross examination to agree, and often did agree, that the Constitution did not give the President the power he claimed and had to fall back on reference to some unspecified general power.

In his case, also, I have no doubt at all he knew this was an unlawful act and that the Lini government was to be overthrown by it. I do not know when he was first involved in this plot but I am satisfied beyond reasonable doubt on the evidence as a whole he was involved before 10.30 on Sunday morning. The rest has been admitted. He is convicted on counts 1, 5 and 6.

In relation to count 2 I am satisfied beyond any doubt he realised the importance of police support. As I have said I am satisfied he joined this conspiracy before 10.30 am on Sunday, he knew this plan was to overthrow the government and, only the day before, he had to address a meeting at Erakor to explain why a demonstration had been called off the previous day. Others who were to attend that meeting were prevented by police road blocks; a matter he must have known by Sunday. I have no doubt that a man of his background and experience had the problem of the police and the need to obtain their support, well in mind. He is convicted on count 2.

I pass next to Jimmy because many of the points I have mentioned in relation to Sope and Carlot apply to him also.

He was first called by the President at 10.00 am on Sunday and was told on the phone that he was to be Minister of Finance and Tourism. He agreed and went to the ceremony. After lunch he went home. He had first heard of the dissolution and the refusal by the Government to accept it on the lunch time news on Friday.

He was trained in bookkeeping and accountancy and after a few months in government service, obtained work in the private sector. In 1976 he started as an inspector in the Co-op Association and three years later went into business on his own account.

His political career started when he unsuccessfully contested a by-election in 1982. He was successful in 1983 and held the seat in the 1987 election. Whilst a member, he has represented the Vanuatu Parliament overseas more than once and he agreed he knew the procedure for dissolution and the interim government but claimed no particular knowledge of the constitutional position.

It is clear he is not in the same category as the previous three accused. However, I am satisfied that his experience in Parliament must have told him much about the provisions of the Constitution. He told the court he was familiar with the normal procedure for election of the Prime Minister and the position of an interim government but he acted in good faith believing the President had the right.

Having been expelled from Parliament in 1988 for an action with which he told us he was not in agreement, he was only too well aware of the need to consider and be careful over any steps to do with the provisions of the Constitution.

In his case I am satisfied beyond reasonable doubt that he knew this was not a proper course of action. By section 6(2) of the Penal Code, recklessness in doing a criminal act is equivalent to intention.

I am satisfied beyond any doubt that he knew enough to be put and was put very much on his guard and he deliberately avoided asking about the position. He did that because he knew the answer was likely to be that it was unlawful. That is sufficient intention. Like the others he has admitted the rest and is convicted on counts 1, 5 and 6.

As to count 2, he had, the previous day, been asked to the meeting at Erakor but was prevented from attending by a police road block. However, I am not satisfied to the required standard that the prosecution has proved his involvement in the conspiracy before the Sunday morning. He also gave an impression of being less likely to think the matter through to the extent the others did. As such I cannot say I am satisfied he must have realised the need to take steps to incite mutiny in the police.

He is acquitted on count 2.

The case of Naupa is different. He also has a political background. He was educated here and abroad in administration and then joined the British National Service until 1977 when Fr. Lini asked him to resign and work for the Vanuaaku Party to help formulate their policy. He was a member of the Government of National Unity and a Member of Parliament from 1979 to 1983. For part of the time he was Minister of Transport, Communications and Civil Aviation but resigned over policy differences with the Government. He, too, was a member of the Constitutional Committee. He finished with active politics when he failed to be elected in the 1987 general election and has since devoted his time to his business activities.

He told how he was first contacted at about 9.30 am on Sunday and told to go to the President's office. Unlike the other accused, he says he was immediately concerned about the legality of it all and, as soon as they were in the President's office, asked about it and the reason for the haste that necessitated holding the ceremony on a Sunday. I felt that was an honest approach. He also pointed out to the President that he was now a businessman and he was not sure he could give the interim government the necessary time.

The President reassured him. He explained it was only for 2 months and that it was to be a type of government of national unity. He said that 5 members of the Vanuaaku Party would be joining it. When Naupa pointed out that he and Spooner were not even members of the Parliament, he was told they were needed to balance, as it were, the opposing parties. The reason the Vanuaaku Party members were not there was, he was told, because of the need for haste caused by the President's wish to have it recorded on television by the Australian team who were returning to Australia that evening.

As a result, Naupa decided it must be all right. In particular, he felt the fact the Lini government were to be represented gave support to that and he believed the President must be acting lawfully.

He was honest enough to say that, after the oaths were taken, he was surprised to hear that the posts of Prime Minister and Deputy Prime Minister had gone to expelled members. He felt he had agreed to serve only if the Supreme Court ruled it was legal. However, any step he may have taken after the court ruling was scotched by his arrest on Sunday evening.

I am not entirely satisfied he was as easily reassured as he tells the court. However, his short written statement made the very next day mentioned the five ministers from the Lini government, that he had been reassured that it didn't matter that he and Spooner had not been elected in the last election and ended with the words "I will assist in the interim government only when the Supreme Court declares it legal". I appreciate the last sentence could have sprung from hindsight following his arrest but the other matters lend substantial support to the account he gave in Court.

I also bear in mind the fact that his evidence on this was not disputed on behalf of Mr Sokomanu. It cannot have taken counsel by surprise because his statement made to the police the next day does, within the limitations of its brevity, refer to these matters.

In the circumstances, I feel he may have had a genuine belief in the legality of the President's actions and thus did not have the necessary intent. He is acquitted on counts 1, 5 and 6 and, as count 2 steps from 2 count 1, on that count also.

Spooner was the other person who was no longer in active politics. He had trained in medicine and worked here and abroad in that field. Starting in the British National Service in 1964, he distinguished himself to the extent that, by 1979, he was Chief Condominium Medical Officer and, in 1980, was the first Ni-Vanuatu Director of Health Services. In 1983 he resigned to set up private practice in Vila which he has done since.

His involvement in politics has not been great and he has never been a member of Parliament although he contested the 1983 and 1987 elections.

He told the Court he was telephoned on Sunday at about 9.30 am just after he had seen a patient. The President said he wanted him to help with the interim government. Spooner hesitated because of his work and, although he did not mention it to the President, has rather bad financial state and the effect on that of two months absence from his practice. Whilst he claimed no special knowledge of the Constitution he agreed he knew the Prime Minister was elected by Parliament and that the government was always entirely composed of MPs. However, he was told by the President it was all right and he accepted that.

His claim that he was only told for the first time on Sunday morning is supported by the fact he turned up at the President's office in casual clothing but, on seeing how formally dressed were the others, went home to change. I accept the telephone call was the first he knew of this plan and so his evaluation of the situation was made entirely after that.

He regarded the President as a High Chief and so his inclination was to accept that such a person would not ask him to do anything wrong. He would not have done anything asked if he had known it was illegal but simply took the view that the fact it was asked by a chief suggested it was all right and that calmed any doubts he may have entertained.

It is, of course, only too easy in such a case as this to take that line. I felt he was a little too willing to claim total lack of awareness but, on balance, I felt he was a truthful witness. I felt he, also, may have held a genuine belief in the President's right and I cannot be sure he was simply turning a blind eye to the possibility.

The prosecution in his case have not proved the necessary intent. He is acquitted on counts 1, 5 and 6 and, therefore, also on count 2.

The last accused in Kalotiti, who faces only count 2. He is in a very different position from all the other accused. He was never a politician and there is no evidence of his having been involved in any political activity. At the time of the offence, he was private secretary to the President; a post he had held for 5 years.

He was trained as a teacher including two courses in England and, from 1964 to 1979, he worked in the British National Service. After independence he continued in the public service as a second secretary in the Ministry of Public Administration until he became private secretary to the President.

On the Sunday afternoon, he first corrected and later photocopied and distributed the circular letter, Ex. 23, to the police and VMF. He agreed he knew the contents but regarded it as a normal part of his duties. He had been told before to distribute circulars and felt this one was no different.

He has the same defence of mistake of fact as the other accused. Thus, if the court thinks he may genuinely have believed the President was acting within his lawful constitutional powers, he would have none of the necessary intention for an offence of incitement to mutiny. He has the additional defence provided by section 22 of the Penal Code:

"No criminal responsibility shall attach to an act performed on the orders of a superior to whom obedience is lawfully due, unless such order was manifestly unlawful or the accused knew that the superior had no authority to issue such order."

Clearly he was performing an act on the orders of a superior to whom obedience was lawfully due and so that prosecution must prove that he either realised the act was manifestly unlawful or that his superior had no authority to give such an order. It is obvious that, as President Sokomanu had authority to order Kalotiti to distribute the document so the sole question is whether the order was manifestly unlawful.

That unlawfulness, the prosecution suggest, was manifest in the contents of the document itself. Kalotiti must have realised it was an incitement to mutiny and therefore the order to distribute it required him to perform a manifestly unlawful act.

It is perfectly apparent that Mr Kalotiti is an intelligent man. In the witness box, he was quick with his replies and more than once derived obvious pleasure from "scoring off" the prosecutor. It is equally clear that at the time of these events, he was taking sufficient interest in the developing situation to write the type of letter he wrote to the Commissioner of Police, Ex. 22.

There can be no doubt that he realised the significance of the last part of Ex. 23. His explanation to the Court was that he simply felt the President wanted to test out their allegiance despite the clear threat at the end.

I accept that he, more than any of the accused, would believe the President was acting within his powers when he dissolved Parliament and formed the interim government but the circular takes it a step further. The threat in the last lines must have struck him as a strange approach for a man whom he believed was lawfully taking over the conduct of the government. He had just witnessed the swearing-in of an interim government which would have included a minister with responsibility for the forces. That would mean the President no longer needed to take the sort of action he did. I am sure that such points occurred to Kalotiti. As I have said, I formed the impression of an alert and intelligent man.

Having considered all those matters, I must be satisfied so I am sure that he realised enough about the situation to know the letter was inciting them to transfer their allegiance and duty for a mutinous or traitorous purpose. I cannot accept the prosecution have proved that in this case. He may well have wondered about the purpose of the letter. He had some knowledge of the situation from his telephone conversation and letter to the Commissioner and I am sure he realised the letter was prompted by the failure of the officers to see the President but that falls short of knowing that the President's circular was an incitement to mutiny. He is acquitted on count 2.

WARD J

[Editorial Note: This matter went on appeal and is reported as Sokomanu and Ors. v. Public Prosecutor; CA 2/89.]