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State v Seniloli [2004] FJHC 46; HAC0028D.2003 (3 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0028 OF 2003S

STATE

v.

RATU JOPE SENILOLI
RATU RAKUITA VAKALALABURE
RATU VILIAME VOLAVOLA
ISIRELI LEWENIQILA
PECELI RINAKAMA
VILIAME SAVU

Mr. M. Tedeschi, Mr. G. Allan & Ms A. Prasad for State
Mr. M. Raza for 1st Accused
Mr. A.K. Singh for 2nd Accused
Mr. S. Naqase for 3rd & 6th Accused
Mr. D. Sharma for 4th Accused
Mr. A. Seru for 5th Accused

Hearing: 3rd August 2004
Ruling 3rd August 2004

RULING

This is an application by the defence under section 301(1) of the Criminal Procedure Code. It is an application for a motion in arrest of judgment on the ground that the charges laid under the information do not state any offence known in law. The crux of the submissions made by the defence are that the charge in the information in relation to each of the accused persons is duplicitous, firstly on the ground that the charge under subsection (b) of section 5 of the Public Order Act refers to the taking of an oath or engagement but does not specifically incorporate the wording and the description of the oath and engagement described under paragraph (a) of section 5 of the Public Order Act.

The second submission is because of the reference to purporting to bind that person to commit an offence punishable by death, in effect the accused persons are facing two charges in one, and that is in the context of this case the charge of taking the oath and the charge of treason. A reading of section 5(a) and (b) of the Public Order shows that they create different offences but paragraph (b) only says, “takes any such oath or engagement not being compelled to do so.” The description of the oath or engagement is laid out in full under paragraph (a). Paragraph (a) read: “Any person who administers, or is present at, or consents to the administration of any oath or engagement in the nature of an oath purporting to bind that person who takes it to commit murder or any offence punishable by death, shall be guilty of an offence and shall be liable upon conviction”, and so on.

The words “any such oath or engagement” in paragraph (b) can only refer to an oath or engagement which is made an offence under paragraph (a). The crux of the offence under paragraph (a) is that the oath or engagement in the nature of the oath should have purported to bind that person who takes it to commit an offence punishable by death or to commit murder. For the prosecution to have laid a charge under paragraph (b) and not to have referred to the description of the offence under paragraph (a) would have led to a charge that failed to give sufficient particulars to the accused persons and therefore that submission of the defence is unsuccessful. In order to lay a charge under paragraph (b) the prosecution must refer to the definition of the oath under paragraph (a).

The second submission is that two charges are laid in one, that is, that the taking of the oath and of treason. I have already in the ruling at no case to answer stage, defined the elements of the offence in this case. I have already very carefully explained to counsel that there is no need for the prosecution to prove treason, or even an intent to commit treason.

There are many offences in the Penal Code which are offences which say that a person for instance breaks and enters into a dwelling house with intent to commit a felony and such an offence does not create a duplicitous one. In this particular case the Prosecution only has to prove that the oath or engagement in the nature of the oath taken purports to bind that person to an offence punishable by death.

In this case I find that in fact the accused persons are not faced with two charges in one. They are not being charged with treason in any way. They are being charged with taking an oath which purports to bind them to commit treason which is another offence altogether.

For these reasons the application made by the defence this morning is refused. It is dismissed. We are now ready for closing submissions.

Nazhat Shameem
JUDGE

At Suva
3rd August 2004