IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC044 OF 2004S

THE STATE

V

SIMIONE KAITANI and 3 Others

Gates J

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]

4th, 5th July 2005

RULING NO. 4

Admissibility of set of photographs of alleged scene of crime, and of its environs; whether relevant; admissibility of two video tapes; whether earlier participation in street march sufficiently proximate and relevant to offences to be proved; whether presence at scene of earlier swearing in ceremony which was adjourned to later in same day sufficiently proximate and relevant; whether showing of others in picture now convicted prejudicial to fair trial of these Accused persons.

[1] 	The defence object to the admission of 4 sets of photographs depicting the scene of the alleged swearing in. They also object to the admission of two video tapes. Both comprise extracts from lengthier footage. One shows two of the Accused Eroni Lewaqai and Viliame Sausauwai taking a prominent part at the front of a street march which had occurred a day or two prior to the alleged taking of the oath allegations.

[2] 	The other shows three of the Accused, Kaitani, Tonitonivanua, and Sausauwai, present at the interruption of the first swearing-in ceremony which was held in the morning. An announcement was made putting off the balance of the swearing in till later in the day.

[3] 	Mr Rabo said his client maintained he was elsewhere and said the photographs were prejudicial to his case therefore. Mr Khan adopted Mr Rabo’s objection on this issue. He added that such photographs of the scene of the offence, which may have been taken months later, had no relevance. One could not know if the building were the same.

[4] 	Ms Prasad for the prosecution answered by saying that scenes of crime photographs are usually taken after a crime, not before. No inaccuracy had been pointed out or any subsequent change to the buildings. If they had, then questions in cross-examination could be put dealing with this aspect.

[5] 	In a reconstruction witnesses apparently had pointed out to the investigators where certain things had taken place and I understood Ms Prasad to say, whilst using these sets of photographs. Neither side considered it crucial that I inspect the photographs for the purposes of this application.

[6] 	Ms Prasad said the photographs showed the scene, the room where the acts the subject of these charges took place. They also showed the surrounding area, Government offices and other rooms, at the Parliamentary complex.

[7] 	The fact that an Accused denies being at the scene of a crime does not render inadmissible a photograph of the alleged scene. The photograph is a piece of evidence which merely illustrates a place where witnesses may testify that something had happened. As with all evidence, it is subject to challenge and possible rejection. But it is not inadmissible simply because it is disputed. The evidence of the photographs is relevant and may be led, and the exhibits tendered.

[8] 	Video tape one shows Lewaqai and Sausauwai taking a prominent part in the march. The prosecution say that it shows that those Accused chose to be in the march and that it is part of the events leading up to the swearing in.

[9] 	Mr Rabo answers by saying thousands took part in the march and that the evidential link is too remote. Mr Khan added that that march anyway was a legal march, and participation had no relevance to the offences.

[10] 	The video of the march is not a piece of evidence that is necessary to explain the swearing in with which these Accused are charged. Merely by playing a prominent part in such an event does not inevitably mean that there was a likelihood of the participant having agreed to be sworn in as a minister in an alternative regime. It is too remote. Depending on what evidence is adduced by the defence by way of explanation of the swearing-in, if accepted, active presence in the march might have some relevance, and therefore might be a matter for coverage in cross-examination. At this stage, I am not prepared to allow evidence from the video tape of that march.

[11] 	Tape 2 deals with the breaking off of the first swearing in proceedings at which three of the Accused were present. It is not a tape of the event with which they are charged. Ms Prasad for the State says it shows in effect that the first swearing in and the second were really one and the same. There was merely a break because of some printing problems which were announced by Mr Nata. This tape extract lasts about one minute. It could afford evidence of presence at the first part, at the interruption, and would afford evidence for the assessors as to whether the Accused were present willingly and whether they attended the second half of proceedings in the afternoon also willingly. It would assist on the issue of duress.

[12] 	Again Mr Rabo says the evidence of tape 2 is too remote for the offence charged. Mr Khan considered a wrong inference would be drawn that if some were sworn in in the morning then these Accused must have been sworn in in the afternoon.

[13] 	With respect, that inference is not to be drawn with regard to these Accused. It might be inferred they knew what proceedings were being conducted, knew of the break in those proceedings, and of the fact that the swearing in was to be resumed later on in the day. If, as I assume, there will be evidence of their presence at the second half, this evidence might assist the assessors relevantly on the defence of duress. The assessors will be directed not to infer guilt to these Accused simply by the presence of others in the tape already convicted.

[14] 	It is for the prosecution to prove its case overall, and to disprove obvious defences. I will admit tape 2.

A.H.C.T. GATES
JUDGE

Solicitors for the State	: Office of the Director of Public Prosecutions, Suva.
Solicitors for Accused 1, 2 and 3 [Kaitani, Tonitonivanua, Sausauwai]: Messrs Iqbal Khan & Associates, Lautoka.
Solicitors for Accused 4 [Lewaqai]: Messrs Esesimarm & Co., Nadi.