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State v Kaitani - Ruling [2005] FJHC 564; HAC0044.2004S (9 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Case HAC0044.2004S

THE STATE

V

SIMIONE KAITANI AND 3 OTHERS

Fiji High Court, Suva
2nd, 9th August 2005
Gates J

RULING NO. 6

Submission of no case to answer; close of case for prosecution; if the court considers there is no evidence s.293(1) CPC; taking an engagement in the nature of an oath to commit a capital offence s.5(b) Public Order Act Cap 20 read with s.50 Penal Code; evidence of identification said to be lacking; secondary meaning of “no evidence”; whether evidence discredited or manifestly unreliable; whether reasonable tribunal could safely convict; objective test; consideration of whole of evidence; judicial discretion; three categories of evidence to be considered; handwriting, presence at or near scene, confessions.

Ms A. Prasad with Ms V. Lidise for the State
Mr I. Khan for Accused, 1, 2 and 3 [Kaitani, Tonitonivanua, Sausauwai]
Mr Rabo Matebalavu for Accused 4 [Lewaqai]

[1] At the close of the case for the prosecution, all 4 Accused through their respective counsel, submit that there is no case to answer. They are charged with one count each of taking an engagement in the nature of an oath to commit a capital offence, contrary to section 5(b) of the Public Order Act Cap 20 read with section 50 of the Penal Code Cap 17 [as it was at 20^th May 2000, the date of the offence].

[2] The elements of the offence that the State must prove are:

(i) That each of the Accused took an engagement in the nature of an oath; in short form, that each took the oath intending to do so.

(ii) That the oath was taken, purporting to bind the Accused.

(iii) That it was taken to commit an offence, (as at 20^th May 2000) then punishable by death, namely treason.

(iv) That each Accused had not been compelled to do so.

(v) And that the identity of the Accused is established beyond reasonable doubt as the person who took the oath and committed the crime.

[3] Though Mr Rabo reserves his position for Accused 4 on whether compulsion will form a defence, both he, and Mr Khan for Accused 1, 2 and 3, have focused on the evidence of identity of each Accused linked with the crime. They submit the evidence of identification is below the requisite standard and that the case should not be allowed to go to the assessors for their opinions.

[4] The governing section of the Criminal Procedure Code is section 293(1) which states:

“293. (1) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the barrister and solicitor for the prosecution or the defence may desire to submit, record a finding of not guilty. (Amended by 35 of 1961, s. 27.) (Emphasis added)

[5] What is the meaning of “no evidence”? In the Practice Note of the Queens Bench Division [1962] 1 All ER 448, Lord Parker CJ speaking for the judges of that Division and in explaining the secondary meaning of “no evidence” said:

“(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”

[6] That test found favour in Fiji’s courts: Moidean v R [1976] 22 Fiji LR 206. In Regina v Jai Chand [1972] 18 Fiji LR 101 at p.103D Grant CJ said:

“at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence.”

[7] But mere inconsistencies in the evidence do not mean that the judge must take the case away from the tribunal of fact. In Barker (1977) 65 Cr. App. R. 287 it was said (at p.288):

“and even if the judge has taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge’s job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury”

[8] In Galbraith (1981) 2 All ER 1060 at p.1062 Lord Lane CJ in laying down guidelines for the courts when confronted with evidence which was flawed said:

“(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence – (a) where the Judge comes to the conclusion that the Crown’s evidence taken at its highest is such that a jury properly directed could not convict on it, it is his duty, on a submission being made, to stop the case. (b) Where, however, the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury .............”

[9] In Sisa Kalisoqo v R (unreported) Fiji Court of Appeal Crim. App. No. 52 of 1984, 15^th November 1984, the court commented:

“In England, however, the matter is not governed by any statutory provision. In our view, the simple and narrow prescription of the section precludes the adoption in this country of paragraph 2(a). It is of application where “there is some evidence ......”. And where there is some evidence a Judge cannot say there is no evidence.”

[10] This view was subject to further refinement. In The State v Mosese Tuisawau (unreported) Fiji Court of Appeal Crim. App. No. 14 of 1990, 15^th February 1991, the court said (at p.6):

“We agree with Mr K. Bulewa that a totally strict interpretation of the expression “no evidence” would lead to an absurdity and that even where there is “some evidence” its nature has to be examined.”

[11] The court upheld the primary judge’s finding of no case to answer. It set out the test (at p.11) as:

“In order to come to the conclusion that there was “some evidence”direct or circumstantial and irrespective of its weight credibility or its tenuous nature, it must be shown that the evidence in question was relevant, admissible and in its totality inculpatory of the accused. This means that the evidence in its totality must at least touch on all the essential ingredients of the offence charged.”

[12] Shippey [1988] Crim. LR 767 was a rape trial in which the prosecution case rested entirely upon the evidence of the complainant and there was effectively little or no corroboration. The submission of no case to answer had classified the evidence as being so inherently weak and inconsistent that no jury properly directed could properly convict. The trial judge said that when assessing the prosecution case at its highest it was not a correct approach to pick out the plums and to leave the duff behind. Turner J considered it necessary to make an assessment of the evidence as a whole.

[13] Applying the Galbraith test, the court found it impossible to ignore the inconsistencies and concluded a jury properly directed could not properly convict.

[14] In Lesley [2006] EWCA Crim 2000; [1996] 1 Cr. App. R. 39 at p.44 the trial judge considered he was dealing with a borderline case. He accepted the observation of Professor J.C. Smith in his commentary on Shippey that the judge should only accede to the submission “if he thinks that no reasonable jury could find that the prosecution witnesses are telling the truth. If that is truly the case, then there is no point in leaving the case to them.” There must be the capacity in the evidence for the tribunal to find proof beyond reasonable doubt, but the judge does not have to find that standard reached before he can allow the case to go to the assessors: Munsami Chetty v R Fiji Court of Appeal Cr. App. No. 45 of 1974 p.804.

[15] The Court of Appeal in Lesley agreed with the trial judge and added:

“The issue was one for the discretion of the trial judge. He directed himself correctly as to the principles in accordance with which his discretion should be exercised and then exercised it with all the advantages (which we lack) of having seen and heard the witnesses when they gave their evidence. We do not consider that this proper exercise of his discretion can be faulted.”

[16] Whilst accepting the Sisa Kalisoqo interpretation, I find the English cases do have bearing on the meaning of “no evidence”. Trial Judges in Fiji have tended to follow the wider Mosese Tuisawau definition.

[17] The evidence against each Accused falls into three categories. There is the handwriting expert’s evidence, the evidence of their presence in or near the room at Parliament where the swearings in are alleged to have taken place, and lastly the admissions made during their interviews. It goes without saying the quantity and quality of evidence against each varies markedly.

The handwriting evidence

[18] Mr Boot, a handwriting expert from New Zealand, gave evidence of his examination, findings and conclusions of the disputed documents compared with accepted examples of each Accused’s writing.

[19] The signatures in the disputed documents contained a number of similarities with writing seen in the accepted examples. The disputed signatures were contained in a space just above the printed names of the Accused and the name of the ministerial office to which each had been appointed and sworn in. In Accused 1’s case, the signature was said to have been put on the oath for due execution document above where the name of another person had been typed. Simione Kaitani’s name had been written in by hand in the recital part of the oath.

[20] The handwriting evidence if accepted would tend to support an inference that the Accused, if they had indeed signed the oath document, had also taken the oath for ministerial office in the unlawful government.

[21] Mr Boot spoke of his methodology and went on to say how expert opinions or conclusions were expressed on a sliding scale. At one end an opinion could be reached of a positive identification, at the other an opinion that the writing was positively not the same. If in the middle, then an opinion would be rendered as being inconclusive with reasons given. From the middle, back to the two ends of the scale, an opinion would be rendered either for or against the same hand having written the disputed writing. In this case, an identification of authorship though possible was subject to limitation, in that a definitive opinion was not possible. There was however evidence pointing towards the limited opinion reached.

[22] After his examination Mr Boot said he found a number of similarities in the writings of all 4 persons. He spoke of certain limitations also. In answer to questions put by Mr Khan in cross-examination, Mr Boot said he had reached positive identifications of three other signatures of persons not involved in this trial on similar documents. He said he had no doubt in his mind of the authorship of those questioned signatures. Whereas with Viliame Sausauwai, Eroni Lewaqai and Simione Kaitani he could not say beyond reasonable doubt that they were the authors of the signatures on the respective oaths documents. He referred again to the limitations, and said he was not certain to the same extent in any of their cases.

[23] In examination-in-chief, Mr Boot pointed out the basis for his indication of similarities between the disputed signatures with the accepted material. In the cases of Accused 3 and 4 he spoke of strong similarities.

[24] In the case of Accused 2 Levani Tonitonivanua he found dissimilarities of style. He said the signatures and accepted material were not comparable. He could not give any opinion as to the likelihood or not that Accused 2 had signed the oath document. His examination was inconclusive.

[25] In summary, the handwriting expert provided no evidence for the prosecution that Accused 2 had signed the oath document. The assessors could not form their own contrary opinion safely on such an issue. There remains handwriting evidence against Accused 1, 3 and 4. This evidence though insufficient if it were the only evidence available against those Accused, is nonetheless capable of forming part of the jigsaw of proof with the other evidence, if ultimately accepted by the assessors.

Proximity to the swearing-in

[26] The second category of evidence is that of sightings of the Accused near the place where the swearing-in took place. No witness, with one exception, has testified that any of the Accused were seen to take the oath. There is no independent direct evidence of the commission of the offences. The State submits that the circumstances are such that it is proper to draw an inference of each Accused having taken the oath either from their presence close to the scene of the swearing-in, or from their going in and emerging out of, the room where the swearings-in were taking place.

[27] The fourth witness for the State, Senator Mitieli Bulanauca, said he went to Parliament on 20^th May 2000, the day of the offences. He saw all 4 Accused in the vicinity of the upstairs offices. In the morning a swearing-in took place upstairs in the Prime Minister’s conference room. He remembered Accused 1, 2, and 3 being present. The ceremony was interrupted and it was announced that those remaining to be sworn in would be sworn in later in the day. He had lunch there with the same Accused. On the resumption, he himself went into the Prime Minister’s office to be sworn in. He was sworn in. He shook hands with everyone outside when he came out. He noticed that Accused 2, 3, and 4 were there outside.

[28] Bulanauca said after lunch it was Kaitani first who was called into the PM’s office by Jo Nata. He was in the office 2-3 minutes. On coming out of the office Accused 1 shook hands with Bulanauca, who was on his way in. Bulanauca said he was going in to sign and swear an oath. He described what happened when he went in. He had to read the oath whilst holding the Holy Bible in his right hand. After reading the oath he signed it. He read it to Ratu Seniloli. He was also inside about 2 minutes. He said only Ratu Seniloli and Jo Nata were inside.

[29] Accused 2 and 3 were later called into the same office. They also shook hands with everyone on re-emerging. Bulanauca said he shook hands with them to congratulate them on their portfolios in Cabinet. He also said Accused 4 was there. He did not say explicitly that Accused 4 had gone into the PM’s office as the others had done.

[30] Prosecution witness 6 was Filipe Baba, a taxi driver. He drove to Parliament on 20^th May 2000 and went to the Nationalist Party Office in the complex. He says he went up to the second floor to witness a swearing-in ceremony. He said it was happening in the Prime Minister’s office. Ratu Jope Seniloli and Jo Nata he said were calling out names. He did not remember or know all of the names at first. He remembered Accused 1, 3 and 4 being in the room, that is the room where the swearing-in took place. This was in conflict with Senator Bulanauca’s evidence which suggested the afternoon ceremony was carried out without spectators and in the PM’s private office.

[31] He saw some people being sworn in, and the way in which the ceremony was being conducted. He said he heard Accused 3’s name being called. Accused 3 went up to Ratu Jope and the witness described the ceremony with Accused 3 holding the bible. He said he was in the same room as Sausauwai and Nata. A lot of people were in the room and he stayed 10-15 minutes. He shook hands with those who had been sworn in. He said he could see inside the room where it was happening from where he was standing. Since he says there were so many people in the room, was he referring to the morning ceremony where there appeared to be more people, spectators, and the Press present. If that were so, how reliable were his observations of Accused 3’s swearing-in? Evaluation is not the role of the court at this stage. However no evidence will be found if the evidence is hopelessly in conflict.

[32] There were some inconsistencies of time and place in this witness’s evidence which were elicited in cross-examination. Perhaps the most favourable view of his evidence for the State is that he puts all 4 Accused near the scene of the swearing in and gives positive participatory evidence in relation to Accused 3. On its own, it provides evidence to go forward against Accused 3 but no evidence against Accused 1, 2, and 4.

[33] The 7^th witness for the State was Jonasa Vueti. He said he went with Filipe Baba on 20^th May 2000 to the second floor in the block near to the Parliament. He was in Parliament then to help with the cooking. Later in his evidence he said he sat on the ground outside and did not go up to where the swearing-in took place. He saw all 4 Accused at that building. Filipe Baba had stayed with him all the time, and did not go upstairs, he said.

[34] If this witness is truthful his evidence seriously conflicts with that of Filipe Baba. It suggests Baba could not have seen what he said he saw upstairs. His own evidence is of the presence of the Accused walking around the same building between 10-11 am where the swearing-in ceremony took place. That is not proximate enough to be probative. It is of little assistance to the State.

[35] Trevor Whippy was the Fiji TV cameraman. He took pictures of the swearing-in ceremony in the morning. Extract footage was exhibited. There was no TV coverage of the afternoon swearing-in, the one which led to the present charges. Mr Whippy recognized two persons, one of whom he said was Accused 1. Similarly his evidence is not sufficiently proximate to the crime alleged and would not exclude other hypotheses.

[36] Sainimili Cavuilati was called next. She was a police officer who had been in Special Branch in May 2000. She had entered Parliament on the 19^th May 2000. It was not quite clear what her role was, but she said she entered Parliament in relation to her duties. She did photocopying she said for Jo Nata, and faxed copies to her own police office. She agreed that she had to hide her identity but yet she said Ratu Rakuita Vakalalabure knew who she was. Ratu Rakuita was the Attorney-General in the illegal Government.

[37] She told of how the swearing-in ceremony in the morning was interrupted and a break was taken. She left the complex for lunch. Upon her return she went upstairs and there were people sitting outside the PM’s office in the lounge area. As she entered she met Accused 4. He had just come out of the office and told her that he had just been sworn in as Assistant Minister for Urban Development.

[38] She said he was looking for a place to stay because he had just been sworn in. She did not say anything to him. She then walked out of the office. It was suggested to her in cross-examination that she did not see Accused 4 or hear him say he had just been sworn in. She maintained her stance on both points. This was evidence of an unequivocal admission by Accused 4. It is evidence which could be considered by the assessors and it is for them to evaluate its worth.

Evidence of admissions

[39] In consideration of the individual cases of all 4 Accused I refer to my Ruling No. 5 which dealt with issues of voluntariness. The circumstances in which Accused 1’s statement was taken on 29.4.01 were fair and his rights were accorded to him. He admitted being appointed Minister of Youth, later of Health. He denied taking the oath of allegiance. He admitted the signature on the form looked like his. He did not remember signing. He explained why he did not take the oath.

[40] In the second interview on 24.6.03 Accused 1 tried to contact a certain solicitor. The interview was suspended in order to allow him to have another solicitor present. The interview recommenced the next day with the second solicitor present. The circumstances were fair. He spoke freely. He need not have. He had had sufficient opportunity to consult a solicitor.

[41] At first he said he was not given any ministerial post. He said he was still in Parliament when called to be prepared for the swearing-in. He said he was not sworn in holding the bible or before Ratu Jope Seniloli. He said he had told Nata he would not accept the document with somebody else’s name on it. He did not remember whether he had signed that piece of paper. He was shown the paper and said he then recalled the incident. He said he did not recall signing, but it looked like his signature.

[42] Later he said “that must be my signature and I must have signed it, I based on the advice Nata gave me.” There was some equivocality in these answers.

[43] Accused 2 was interviewed first on 17.4.01. The interview was interrupted at one point to allow Accused 2 to take his wife to hospital. He returned two days later for continuation. In this interview he admitted he was sworn in as one of George Speight’s ministers. He was sworn in as Assistant Minister of Forestry. He admitted he signed the oath of allegiance document. He was not sure what day that was done. He agreed to be sworn in he said because he thought it was lawful.

[44] Accused 2 was interviewed again on 2.7.03. He admitted being appointed Assistant Minister for Forestry. He said he had stood in front of Ratu Jope Seniloli and taken the oath. He acknowledged the signature on the oath document. There were some inconsistencies in his answers which could be attributed differently either by the State or the defence.

[45] Accused 3 was also interviewed twice, that is on 2.8.00 and on 9.6.03. In the first interview, he was offered an opportunity to consult a solicitor of his choice or a solicitor from Legal Aid. Accused 3 said arrangements had already been made and he would meet the solicitor at court. The interview proceeded. He admitted he was sworn in as Assistant Minister for Health on 20^th May 2000.

[46] In the second interview, Accused 3 said he was sworn in at the later ceremony that day, at the PM’s office at around 1.30 pm. He took the oath before Ratu Jope Seniloli. He agreed it was his signature on the oath document. He said only at the interview did he realise it had been illegal. Again, there was clear evidence of admissions of direct involvement in the taking of the oath which the assessors could consider.

[47] Accused 4 was interviewed on 16.6.03 at the Sabeto Police Station. There is a dispute as to whether D/Spl Mesake really did try to contact Accused 4’s solicitor. There is a second challenge to the effect that if Cpl Mesake had tried to contact the solicitor by telephone, on getting no answer, he failed to facilitate pro-actively another solicitor or failed to postpone the interview to allow Accused 4 to have the interview in Suva where he might have been able to contact his solicitor of choice.

[48] Cpl Mesake had testified that he said to Accused 4, “We have phoned Rabo and no-one responded. Do you wish to say anything else?” Accused 4 apparently said: “Never mind, I will just answer the question.” Cpl Mesake explained that Accused 4 had not asked him to defer the interview, but that if he had he would have deferred the interview.

[49] If that were the position with this investigation, it might have been better to have said so to Accused 4 so that he could have made an informed decision either to ask for postponement or to waive his right to consult his lawyer: R v Taylor [1993] 1 NZLR 647. But what is good practice is not necessarily a legal requirement flowing from the right. There would be resource considerations if the right were to be interpreted expansively. Up to now Fiji’s jurisprudence has not been prepared to extend the right that far.

[50] Cpl Mesake then said: “Can you sign as you have been advised about your right to consult a solicitor? Accused 4 answered “Yes” and signed. This question made it clear that the Accused had a right to consult a solicitor, not necessarily limited to one particular solicitor. The right to apply for legal aid assistance was not put to the Accused. I have said earlier, the rights recognized and enshrined in the Constitution are best put in closely similar wording to the actual wording used in the Constitution. Second, it is better to divide up the rights accorded in section 27(1)(c) and put them to a suspect as two questions, so that the right to apply for legal aid is covered separately.

[51] I do not find that the resultant answers are rendered involuntary or inadmissible by the failure of the interviewer to be more pro-active. The right to consult a solicitor was accorded and attempts were made, if accepted by the assessors, to contact Accused 4’s solicitor of choice. There is material here upon which the assessors could arrive at a decision that the admissions were made voluntarily and that they were not undermined by the procedure followed.

[52] Accused 4 was very frank in his admissions. He related how he came to be asked to be Assistant Minister for Urban Development. He said he took the oath with the bible before Ratu Jope Seniloli. He acknowledged his signature on the oath document. He gave his reasons for doing so. He did not know he said, that what he had done was wrong. If accepted, this is direct evidence of his commission of the offence.

[53] At this stage the evidence, to suggest that any of the Accused had been compelled to take the oath is scanty. It may be an issue for the assessors to consider.

Conclusion

[54] The evidence against Accused 1 is of being seen going in and re-emerging out of the PM’s private office in the afternoon during the second swearing-in ceremony. He appeared to be congratulated by others who shook his hands. The handwriting evidence could support the hypothesis, that he signed the oath of office document because he had been sworn in. He made some admissions in his interviews, albeit of some equivocality. Whilst all three pieces of evidence would be inadequate on their own, they could be treated, if accepted, as providing both a circumstantial case and a case made up of strands in a cable against Accused 1 for the assessors to consider and on which to reach their opinions.

[55] The evidence pointing to Accused 2’s authorship of the signature on the oaths document is insufficient. It cannot be put into the equation. Accused 2 was prominently present at the first swearing-in ceremony. Senator Bulanauca says Accused 2 came out of the PM’s office in the afternoon. This was the office where the second ceremony was taking place. Accused 2 was congratulated when he came out. Senator Bulanauca gave evidence as to what happened when he himself went into that room ahead of Accused 1 and 2 and was sworn in. Accused 2 made admissions in relation to this offence in both interviews which could be considered by the assessors.

[56] Accused 3 faces the handwriting evidence pointing to similarities between his accepted writings and the signature on the oath document. Senator Bulanauca saw Accused 3 was present at the morning ceremony. He saw him go into the PM’s office in the afternoon, and come out, whereupon everyone shook hands with him to congratulate him. Filipe Baba, the taxi driver, said he heard Accused 3’s name being called and saw him being sworn in. Accused 3 made comprehensive admissions in his interviews.

[57] Similar standard handwriting evidence was available against Accused 4, pointing to similarities. In the afternoon Accused 4 was seen near the PM’s office by Senator Bulanauca. There was no evidence of Accused 4 entering the PM’s office or of being congratulated upon reappearing. But Sainimili Cavuilati gave evidence of an admission to her by Accused 4 of his having been sworn in as Assistant Minister for Urban Development. This was said to her after he had just come out of the same office. He made frank and full admissions in his interview.

[58] There is therefore evidence available against all 4 Accused upon which the assessors might convict. It is therefore necessary to call upon each Accused to make his defence.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for Accused 1, 2 and : Messrs Iqbal Khan & Associates, Lautoka.
3 [Kaitani, Tonitonivanua, Sausauwai]

Solicitors for Accused 4 [Lewaqai] : Messrs Esesimarm & Co., Nadi.