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State v Tamanikaibau [2003] FJHC 136; HAA0027J.2003S (19 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0027 OF 2003S

Between:

STATE
Appellant

And:

JOSAIA TAMANIKAIBAU;
RAVUAMA LALANABARAVI; and
KINIVUWAI DELAINAVAKAVU
Respondents

CRIMINAL APPEAL NO: HAA 028 OF 2003S

Between:

STATE
Appellant

And:

SAMUELA NACAGILEVU;
ALOSIO SOVAKALIA & ORS.
Respondents

Counsel: Mr. P. Bulamainaivalu for State
Respondents in Person

Hearing: 9th September 2003
Judgment: 19th September 2003

JUDGMENT

These are two separate appeals, but because the facts, evidence and grounds of appeal are identical, I have dealt with both in one judgment.

The charge on HAA0027 of 2003 is as follows:

Statement of Offence

UNLAWFUL ASSEMBLY: Contrary to sections 86 and 87 of the Penal Code, Cap. 17.

Particulars of Offence

JOSAIA TAMANIKAIBAU, RAVUAMA LALANABARAVI, KINIVUWAI DELAINAVAKAVU and others, between the 21st and 27th days of July, 2000, being assembled at Kalabu in the Central Division, to carry out a common purpose, namely, to cause further instability in the country should the appointment of the new Interim Government be not in their favour, conducted themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the aforesaid JOSAIA TAMANIKAIBAU, RAVUAMA LALANABARAVI, KINIVUWAI DELAINAVAKAVU and others will commit a breach of the peace.

The charge on HAA0028 of 2003 is as follows:

Statement of Offence

UNLAWFUL ASSEMBLY: Contrary to sections 86 and 87 of the Penal Code, Cap. 17.

Particulars of Offence

SAMUELA CAGILEVU, ALOSIO SOVAKALIA and others, between the 21st and 27th days of July, 2000, being assembled at Kalabu in the Central Division, to carry out a common purpose, namely, to cause further instability in the country should the appointment of the new Interim Government be not in their favor, conducted themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the aforesaid SAMUELA NACAGILEVU, ALOSIO SOVAKALIA and others will commit a breach of the peace.

All Respondents pleaded not guilty. In HAA0027, a trial was held from the 28th of April 2003 to the 23rd of May. In HAA0028, the trial commenced on the 14th of April and judgment was delivered on 19th of May 2003. In the former, the learned Magistrate found that there was no case for the accused to answer. In the latter, the learned Magistrate acquitted after the defence case was concluded. The other accused, who are on the charges but are not the subject of this appeal, pleaded guilty and were bound over in specified sums of money to be of good behaviour for 12 months.

The evidence was that in July 2000 the Operations Manager of Dee Cees Buses was instructed by the military to transport people from Parliament to various places. He sent 10 buses to Parliament and the people in them were dropped all over Viti Levu. Some were dropped off at Kalabu Village because they had asked to be dropped there.

The Respondents were not identified as being on the buses. Mohammed Subrati gave evidence that he ran a dairy ½ a mile away from the Kalabu Fijian School. He said that in July 2000, 3 people came to his shop and said that they were members of the “Speight group” and asked for goods. They said they had no money. After a while, a big crowd came into the compound and pulled down the grill in front of his shop. They took goods from his shop and left without paying. Some of them took a 6 litre container of kerosene, and poured the kerosene on the floor. They told him that they would burn the shop. The group of people then went back to the school. Again, it was not alleged that the Respondents were present when this occurred.

The Head teacher of the Kalabu Fijian School, Gauna Halofaki gave evidence that a telephone call had been received saying that a group from Parliament was coming to the School. The management approved the use of the school by the group and the teachers and children were sent home. One group came on 18th July 2000, and another on the 19th of July. They stayed there for a week and a half.

There was evidence from a shop owner Jagat Prasad whose shop is 2 miles away from the Kalabu School. He was told by the Army to close the shop, be alert and stay inside.

The evidence of Captain Jotame Misivono was that on the 27th of July 2000, he was on duty when he was instructed to arrest all civilians at the Kalabu Fijian School. He led a raid on the school on the 28th of July. They forced entry at the school gate, and used a hailer to tell the civilians to come out. When no one came out, they fired warning shots into the air and some came out. He said that there were many people there and 100 army personnel. They were loaded onto trucks and delivered to police custody. The witness said that he found some live rounds of ammunition at the school where the people were, but found no weapons.

Sgt. Sairusi Davui was part of the army operation. He said that there were more than 300 people at the school. Lt. Seremaia Waqanisau, who was also part of the operations said that there were 350 people at Kalabu. When the trucks arrived at the Police Mobile Force, SP Ratu Vio Kinivuai saw that there were 470 men and women brought in the trucks. They were transferred to the Police Academy in 6 buses. Eventually they were caution interviewed and charged.

On Appeal No: HAA0028 of 2003, both Respondents were interviewed under caution. The 1st Respondent Samuela Nacagilevu said he had been arrested at the Kalabu Fijian School by soldiers. He said that he had gone there to visit the group of 600 people and that the leaders of the group were Speight and Ligairi. He was asked: “What was the purpose of your gathering at Kalabu Fijian School?” The answer was: “To await the announcement of the new Ministers.”

The interview then reads:

“Q19: Can the announcement of the new ministers be heard at home or was Kalabu Fijian School the only place you can hear the naming of the new Ministers?

A: It can be heard at home and Kalabu too.

Q20: Why did you choose Kalabu and not at home?

A: We just want to show our support.

Q21: Was any meeting called during the gathering?

A: No.

Q22: Were you also at the parliamentary complex?

A: I went there on Tuesday, the day of the burial at the complex and then I followed them to Kalabu.

Q23: Who directed the group to go to Kalabu Fijian School?

A: The Qaranivalu, Ratu Inoke Takiveikata.

Q24: Did you know anything about the burning of cars at the parliamentary complex?

A: No.

Q25: What was your role in the group?

A: I was one of the supporters.”

The 2nd Respondent’s interview was quite different. He said that he had gone to the Kalabu Fijian School to have the ceremony of qusi ni loaloa after they all left the Parliamentary Complex. He said the leader of the group was Ligairi.

In HAA0027, the 1st Respondent said that he had gone to the Kalabu Fijian School to visit and that he had taken bread. He said he saw Ligairi there and that he had not been part of the group in Parliament.

The 2nd Respondent Ravuama Lalanabaravi said that he had gone to the Kalabu Fijian School to get his axe and drink grog. He said he slept at the school that night and that he did not see any firearms or escaped prisoners there. The 3rd Respondent Kinivuwai Delainavakavu said that he had gone to Kalabu Fijian School after he left Parliament and that he was the one leading the group “because we are the leaders in the village.” He said that the purpose of the visit was for a traditional ceremony and that he was helping to cook. He said that he was part of the group supporting George Speight in Parliament and that he had stayed at Parliament for almost one month.

That was the evidence in respect of both cases. In HAA0027 of 2003 the learned Magistrate ruled on a submission of no case to answer. He correctly directed himself as to the test at that stage, referring to the dictum of Parker C.J. in the Practice Note of the Queen’s Bench Division (1962) ALL ER 448. He found that there was evidence to prove that there were three or more persons assembled at Kalabu Fijian School but that there was no evidence that they had assembled to carry out a common purpose that is to cause instability in the country, or that the persons in the group “conducted themselves noisily by yelling and shouting or by giving bad and fierce looks to the neighbours to cause people in the neighbourhood fear or to make them commit a breach of the peace.” He found that there was insufficient evidence to put the Respondents to their defence and acquitted them.

In HAA0028 of 2003 however, despite hearing similar evidence, the learned Magistrate found that there was a prima facie case. The two Respondents elected to remain silent and the learned Magistrate proceeded to judgment. He found (at page 34 of the record):

“There is evidence that there was a group of men and women that had assembled at Kalabu Fijian School ...... Apart from the crowd assembling at the school, there is no evidence at all of any meeting, any yelling and shouting, or throwing of stones or any other actions to cause terror in the neighbourhood.”

He said that Mohammed Subrati had not said that any of the Respondents were in the group which stole in his shop and no evidence that other persons had been provoked to commit a breach of the peace. He said that there was no corroboration of the evidence that the persons assembled committed the offences alleged, referring to Abdul Sattar, Ram Gopal –v- R (1959) FLR. He further said that the Respondents had been treated in a cruel and degrading manner by the army and that the prosecution had not exercised its powers fairly when it decided to charge only the men in the group. He acquitted the Respondents.

The appeal

The grounds of appeal, filed by the DPP are as follows:

(a) The learned Magistrate erred in law and in fact by misdirecting himself as to the law of unlawful assembly as stipulated in the case of Abdul Sattar & Ram Gopal v R (1959) 7 FLR 14. Refer also to State v Iosefo Sucutuiqaqa & 9 Ors Cr. App. No. HAA0061 of 2001S.

(b) That the learned Magistrate erred in law and in fact by failing to consider the evidence pertaining to the breach of peace and upon which evidence he was entitled by law to imply that fear could occur in the minds of persons living in the neighbourhood as the result of the actions of others to commit a breach of the peace: State v Iosefo Sucutuiqaqa & 9 Ors. Cr. App. No. HAA0061 of 2001S; Abdul Sattar & Ram Gopal v R (1959) 7 FLR 14.

(c) That the learned Magistrate erred in fact in acquitting the defendants under section 215 of the Criminal Procedure Code, Cap 21, by failing to consider the prosecution evidence in its totality.

In HAA0027, the DPP asks for the case to be remitted to the Magistrates’ Court for continuation. In HAA0028, he asks for the acquittal to be quashed and substituted with a conviction.

It is unfortunate that the learned Magistrate did not refer to the decision of this Court in State –v- Iosefo Sucutuiqaqa & Others Crim. App. HAA0061 of 2001S which was an appeal with very similar facts. In that case I reviewed the law on unlawful assembly and said (at page 14):

“An unlawful assembly becomes unlawful (even if the purpose of the assembly was originally lawful) when the persons assembled (not necessarily the accused persons as long as they were part of the assembly) conduct themselves in a manner that people in the neighbourhood will reasonably anticipate a breach of the peace.”

I also referred to Abdul Sattar and Ram Gopal –v- Reg 7 FLR 14, which was a case of riot but which required proof of an unlawful assembly and quoted the following passage from the judgment of Lowe CJ:

“...... under the law as at present in force in Fiji, if evidence shows that events took place which, of their very nature, must have put people in fear of terror it is not only superfluous but also unnecessary to call direct evidence of the fact of a natural consequence of those events so far as fear or terror of the public is concerned.”

In my judgment, after reviewing the evidence I said:

“It does not matter that the common purpose was the holding of Fijian ceremonies. It does not matter that the Respondents themselves did not steal fish or groceries or shoot anyone with the submachine gun. What matters is that there was evidence that they were part of a group from which other members behaved in this way, and that their conduct led people in the neighbourhood to fear breaches of the peace.”

As Sachs LJ said in Caird & Others –v- R (1970) 54 Cr. App. R. 499, 505:

“It is the law – and, indeed, in common sense, it should be the case – that any person who actively encourages or promotes an unlawful assembly or riot, whether by words, by signs or by action, or who participates in it, is guilty of an offence which derives its great gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose.”

In this case, the evidence was of large groups of people coming from the Speight group in Parliament, to assemble at the Kalabu School. There was evidence of the conduct of some members of the group (not the Respondents) creating fear at a neighbouring shop and causing another shop-owner to close up and remain indoors. There are admissions from each Respondent that he was part of this group.

There was more than sufficient evidence to find a prima facie case, and in the face of the Respondents’ silence in HAA0028, more than sufficient evidence to convict them.

I asked State counsel if he had drawn the learned Magistrate’s decision to my judgment in Iosefo Sucutuiqaqa and he confirmed that he had but that the learned Magistrate ignored it.

If this is so, his decision to disregard a judgment of the High Court, which deals with a situation identical to the case before him, is inexplicable.

For the purposes of this appeal, the acquittals in both cases are set aside. In HAA0027, the case is remitted to the learned Magistrate to proceed with the defence case on the basis that there is a case to answer. In HAA0028, the acquittals are quashed and substituted with convictions for both Respondents. The case is remitted to the same Magistrate for sentencing.

Nazhat Shameem
JUDGE

At Suva
19th September 2003