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State v Siciniu [2004] FJHC 70; HAA0049J.2003S (12 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA0049 OF 2003S

Between:

STATE
Appellant

And:

1. NAVITALAI SICINIU
2. EPELI NIUMARAWA
3. ISIRELI WAINIQEQE
Respondents

Hearing: 5th March 2004
Judgment: 12th March 2004

Counsel: Mr. P. Bulamainaivalu for State
Respondents All In Person

JUDGMENT

The three Respondents were charged as follows:

Statement of Offence

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

Particulars of Offence

JOSAIA TAMANI, JOSEFA RATUBA, JOAPE NAIMILA, ATUNAISA TUKANA, NAVITALAI SICINIU, EPELI NIUMARAWA, ISIRELI WAINIQEQE, NEORI TUINANUNU, RUPENI RAVATUDEI, SESONI BAI and others between the 21st day of July and the 27th day 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 TAMANI, JOSEFA RATUBA, JOAPE NAIMILA, ATUNAISA TUKANA, NAVITALAI SICINIU, EPELI NIUMARAWA, ISIRELI WAINIQEQE, NEORI TUINANUNU, RUPENI RAVATUDEI, SESONI BAI and others will commit a breach of the peace.

The Respondents pleaded not guilty and the trial commenced on the 26th of May 2003. After hearing the prosecution case the learned Magistrate ruled on the 2nd of September 2003, that there was no case to answer. He acquitted the Respondent. The State now appeals against the acquittals and asks this court to substitute a finding that there was a case to answer and remit the case to the magistrate to hear the defence case.

The evidence led by the prosecution in this case was identical to the evidence led in State v Iosefo Sucutuiqaqa & 9 others Crim. App. No. HAA0061 of 2001, State v Josaia Tamanikaibau & 2 others Crim. App. No. HAA0027 of 2003S and State v Samuela Nacagilevu & Anr Crim. App. No. HAA0028 of 2003S. As State counsel correctly pointed out my findings in those cases apply here.

There is no dispute that each of the 3 Respondents were at the Kalabu Fijian School with a large group of people who had gathered there after leaving Parliament on the 21st of July 2000. The 1st Respondent, in his interview to the police said that he had gone there to safeguard indigenous Fijian interests. The 2nd Respondent said he went there to await the announcement of the interim government and that George Speight, Ilisoni Ligairi and Ratu Inoke Takiveikata were the leaders of the gathering. The 3rd Respondent said that he had gone there to attend the “qusi-ni-loaloa”.

There was evidence that 600 people arrived at the school from Parliament and that a shop owner, Mohammed Subrati was harassed by some members of the group. They took by force, waka, bread, tinned fish, $600 cash and they poured 600 liters of kerosene on the ground. The group threatened to burn the shop. There was also evidence that the army had to storm the Kalabu Fijian School to break up the gathering, that there were 3 men guarding the gates who refused to open them for the army, that members of the group were suspected of committing robbers in the area, that escaped criminals were in the group and that 2000 people were eventually arrested there with the use of tear gas.

The hands of some of the people arrested were tied and they were taken to the Police Academy where they were fed and interviewed.

The learned Magistrate held that there was no evidence that these three Respondents did anything illegal and no evidence that any members of the public had any reason to fear for their safety. He said there was no case to answer.

The Director of Public Prosecutions appeals against this finding. The grounds of appeal are:

(a) That the learned Magistrate erred in law and in fact by misdirecting himself as to the law of unlawful assembly enunciated in the cases 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 2001/S; State v. Josaia Tamanikaibau & 2 Ors Cr.App.No. HAA0027 of 2003S and State v. Samuela Nacagilevu & Anor Cr.App.No. HAA0028 of 2003S.

(b) That the learned Magistrate erred in law and in fact by failing to consider evidence pertaining to the breach of the peace and upon such evidence he is entitled by law to imply that fear by persons in the neighbourhood was caused from actions of the assembly in provoking other persons to commit a breach of the peace: Abdul Sattar & Ram Gopal v. R [1959]7 FLR 14.

(c) That the learned Magistrate erred in law and in fact by failing to take judicial notice of the 19th May 2000 coup-de-tat by George Speight and his cohorts.

(d) That the learned Magistrate erred in law and in fact in acquitting the respondent under section 210 of the Criminal Procedure Code (cap.21) without considering the prosecution evidence in its totality.

It seems clear that the learned Magistrate misunderstood the law on unlawful assembly. In State v Iosefo Sucutuiqaqa & Others (supra), I summarised the law thus:

“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. In the case of Abdul Sattar & Ram Gopal –v- Reg 7 FLR 14, Lowe CJ said that an unlawful assembly charge has the following elements:

1. That three or more persons assembled;

2. That they assembled to carry out a common purpose;

3. That the persons assembled conducted themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that they would commit a breach of the peace; or, that persons in the neighbourhood are caused reasonably to fear that the persons assembled will, by such assembly, needlessly and without reasonable occasion, provoke other persons to commit a breach of the peace.”

There can be no doubt at all that the Respondents were part of a group which came from Parliament. The purpose for assembling may have originally been lawful. However it is a notorious fact that on the 19th of May 2000 there was an armed takeover of Parliament by George Speight and his group. George Speight is currently serving a term of imprisonment for the offence of treason.

This is a matter, which a court is now entitled to take judicial notice of. When large groups of people coming from a place where there was an armed takeover of Parliament and the hostage-taking of members of Parliament, enter a shop and terrorise a member of the community, then there is undoubtedly an unlawful assembly. The prosecution has established a prima facie case of unlawful assembly. The Respondents, who have admitted being part of that group, must be put to their defence on the charge of unlawful assembly.

For the same reasons I have given in 3 previous judgments, there was a case to answer for the Respondents and they must be put to their defence.

The State’s appeal succeeds. The case is remitted to the learned Magistrate to proceed with the defence case.

Nazhat Shameem
JUDGE

At Suva
12th March 2004