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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCRIMINAL JURISDICTION
CRIMINAL CASE No. 8 OF 1997
CRIMINAL CASE No. 11 OF 1997PUBLIC PROSECUTOR
-v-
FRED MOSES
WILLIE HARRISON
TOARA KALIA
YAPASEI NARAI
SIBA YAMANGACoram: Acting Chief Justice Lunabek.
Counsel: Public Prosecutor, Mrs. Heather Lini Leo, for the Public Prosecutor.
Public Solicitor, Mr. Stephen Joel, for the Defendants.JUDGMENT
I. PRELIMINARY POINTS.
(a) Choice of Language.
This is the Judgment of the Court in this case. The proceedings took place in Bislama and the Judgment is written in English.
(b) Nature of Charges.
The Accused Fred Moses, Willie Harrison, Toara Kalia, Yapasei Narai and Siba Yamanga were committed to this Court, charged in the following way:
In Count 1: That on or about 12 October 1996 Fred Moses, Willie Harrison both of Tongoa Island, and Siba Yamanga of Futuna Island at Vila Seaside Police Barracks went to Lieutenant Alick Ishmael’s house and forced him into the truck and took him to the Officer’s Mess at the VMF Camp, without his consent, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
In Count 2: That on or about 12 October 1996, Fred Moses, Willie Harrison, Toara Kalia all three from Tongoa Island, and Yapasei Narai from Futuna Island, at Vila Seaside Police Barracks went to Lieutenant Bongruru’s house and forced him into the truck and took him to the Officer’s Mess at the VMF Camp, without his consent, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
In Count 3: that on or about 12 October 1996, Fred Moses, Willie Harrison both from Tongoa Island and Siba Yamanga of Futuna Island, at the Independence Park Area, went to Toara Fred Fakao’s house and forced him into the truck and took him to the Officer’s Mess at the VMF Camp, without his consent, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
In Count 4: That on or about 12 October 1996, Fred Moses, Willie Harrison both of Tongoa Island and Yapasei Narai of Futuna Island, at the Independence Park Area, went to Harry Siltei’s house and forced him into the truck and took him to the Officer’s Mess at the VMF Camp, without his consent, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
In Count 5: That on or about 12 October 1996, Fred Moses, Willie Harrison, Toara Kalia, Siba Yamanga and Yapsei Narai at the Vila Seaside Police Barracks and at the Independence Park Area, carry self loading rifle (S. L. R.), without lawful authorization contrary to Section 20 of the Fire Arms Act [CAP. 198].
(c) Pleas
Each and all Defendants pleaded "Not Guilty" to all the Counts. These pleas were noted and the trial proceeded on all the counts.
(d) Statement of the Presumption of Innocence
The Statement of the Presumption of Innocence under Section 81 of the Criminal Procedure Code Act [CAP. 136] was read out to each and all of the Defendants.
(e) Preliminary ruling of the Court
(i) On 11 June 1999, the Public Prosecutor applies for the Court to discharge the Accused Siba Yamanga from the offences as charged. The said Accused Siba is then discharged accordingly.
(ii) At the end of the Prosecution case, the Public Prosecutor applies to amend Section 20 of the Fire Arms Act [CAP. 198] and to be substituted to Section 29 of the same Act in relation to Count 5. The ground put forward by the Public Prosecutor is that it was a typing error.
I refuse to grant the amendment as requested by the Prosecution for the following reasons:
(i) Each and all Accused have taken their pleas in respect to Count 5 on the basis of Section 20 of the Fire Arms Act [CAP. 198];
(ii) It would be unfair to the Accused to so amend at the close of the Prosecution case, since if accepted it will amount to a substantive amendment and not just a typing error.
(iii) The amendment sought is not a typing error. In effect, it is a substantive amendment in respect to the offence as charged. Sections 20 and 29 of the Fire Arms Act deal with two (2) different types of offences. The Prosecution evidence given are not supportive of the offence as charged in Count 5 under Section 20 of the Fire Arms Act, it is quite the contrary.
Each and all Accused are therefore discharged of the offence of Unlawful Possession of Fire Arms as charged in Count 5 under Section 20 of the said Act.
The only remaining counts for the Defendants are four (4) counts of Kidnapping, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
II. STANDARD OF PROOF
In this criminal trial, I am both the Judge of law and Judge of fact. It is my duty to apply the law and sum up the evidence so that the Defendants should know what evidence has been considered by the Court in coming to the verdict eventually.
This is a criminal trial and it is for the Prosecution who brings the charges to prove each and every allegation of facts beyond reasonable doubt. That is the same as saying that the Prosecution must prove each of the Defendant’s guilt beyond reasonable doubt. If at the end of the day, I am left with a reasonable doubt as to each of the Defendant’s guilt, then each of them be entitled to the benefit of that doubt and be acquitted.
I bear in mind that the Defendants, Fred Moses, Willie Harrison, Toara Kalia and Yapasei Narai are charged jointly in this indictment with the offence of Kidnapping which they can help each other to commit. It is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offences charged or that he helps another Defendant to do such an act, and, that in doing the act or in helping the other Defendant to do it, he himself had the necessary intent.
I, therefore, have the duty to look at the evidence upon each of these charges quite separately in order to return quite separate verdicts on each of them as against each of the Defendants.
It may be that the Prosecution would have proved each of the Defendant’s guilt to the required standard upon one or more of the Counts, or upon none at all. It does not follow that if each of the Defendants is guilty on one count that he is guilty of all of them. Further, it does not follow that if each of them is innocent of one count that he is innocent of all counts.
In this indictment, as all the Defendants or some of them are jointly charged with offences alleged to have been committed by each on the same and not separate occasions, and all or some of them are together, it is not essential for the prosecution to establish that each was acting in concert with the other. It is open to me as the Judge of facts, to convict each of having committed independently the offences which are the subject matter of the joint charge. This means that where one of the Defendants who are jointly charged with an offence is acquitted, the other may be convicted of that offence as if they had been charged in a separate count with a separate offence.
The offence of Kidnapping can be committed in two ways: Section 105 (b) of the Penal Code Act [CAP. 135] says that the charge of Kidnapping can be made out "by fraudulent means induce … or by force compel …". The offence of Kidnapping under Section 105 (b) of the Penal Code has two (2) components. I will deal with the two aspects of the charge of Kidnapping as if they were Principal and Alternative aspects. Clearly as the Judge of facts, I must be satisfied that each ingredient of an offence be proved by the Prosecution. If the Prosecution fails to establish the principal component of the charge of Kidnapping, the Defendants will be acquitted on this principal component of the charge of Kidnapping, and if the Prosecution can prove the alternative component, the Defendants would be convicted on that alternative aspect of the charge of Kidnapping. But if there is any doubt then I would have no choice, but to acquit on the second aspect also.
Finally, the Defendants made no statement in this case. But each and all Defendants elect, however, to give evidence in this case. They did not need to do so. As in any criminal case, there is no evidential burden at all on the Defendants. They could have remained silent in the dock and simply allowed themselves to be tried on the evidence called by the Prosecution as Section 88 of the Criminal Procedure Code Act [CAP. 136], which was read to the Defendants makes it clear to this effect. In any event, the Defendants gave evidence. This means that having given evidence the Court must assess their evidence in the same way as any other evidence given in this case by other witnesses.
III. ESSENTIAL ELEMENTS OF OFFENCES
In this trial, the Defendants:
(1) Fred Moses and Willie Harrison, are charged with:
1 count for kidnapping Lieutenant Alick Ishmael, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
(2) Fred Moses, Willie Harrison, Toara Kalia and Yapasei Narai are charged with:
1 count for Kidnapping Lieutenant Bongruru, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
(3) Fred Moses, Willie Harrison are charged with:
1 count for Kidnapping Toara Fred Fakao, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
(4) Fred Moses, Willie Harrison and Yapasei Narai are charged with:
1 count for Kidnapping of Harry Siltei, contrary to Section 105 (b) of the Penal Code Act [CAP. 135].
The essential elements of the offences charged in Counts 1, 2, 3 and 4 for Kidnapping, the matters which the Prosecution must prove beyond reasonable doubt before the Defendants can be convicted on these charges, are:
1. The removal of the Complainants:
(a) Lieutenant Alick Ishmael as alleged in Count 1;
(b) Lieutenant Bongruru as alleged in Count 2;
(c) Toara Fred Fakao as alleged in Count 3;
(d) Harry Siltei as alleged in Count 4;
From one place to another place.
2. By fraudulent means induce (a) or compel by force (b);
3. Without the consent of the Complainants:
(a) Lieutenant Alick Ishmael
(b) Lieutenant Bongruru
(c) Toara Fred Fakao
(d) Harry Siltei.
4. Without legal excuse.
IV. FACTUAL ISSUES
The Prosecution says that on 12th October 1996 the Defendants took and used guns in committing the offence of Kidnapping, without lawful excuse. The offences of Kidnapping (x 4) were committed by the Defendants who are members of the same organisation under 1 head and which affected all of the officers.
The Defence said on 12th October 1996, the Defendants politely requested the Complainant officers to go to the Officer’s Mess at the VMF Camp waiting for the signing of the Agreement to settle the allowance grievances. The Defence said the requests to officers to go to the VMF Camp on 12th October 1996, are not surprise requests. The officers went to VMF Camp peacefully. It is said, whilst the methods used by the Defendants may be seen unusual to all, it reflects life, engagements and their para-military training and this is in line with their frustration toward the Government in the manner the Government was handling their grievances. The Defence said there is no harm intended and there is no unlawful conduct intended and carried out on 12th October 1996. An agreement was signed, the officers were released and the Stand Down Group (S. D. G.) ceased their activities at that time.
IV. SUMMARY OF EVIDENCE
The evidence in this case has been recorded in my notes and will be the primary record of what was said. What I now do is just give a summary of these parts of the evidence which are important to the decision.
V. SUMMARY OF THE PROSECUTION EVIDENCE
The Prosecution called 9 witnesses.
The first witness is Lieutenant Alick Ishmael. He come from Nguna Island. He is married and has 4 children. He worked over 20 years with the Police Force. 2 or 3 years ago he lived at the Vila Seaside Police Barracks and he still lives there. Currently he works at the Joint Commanding Quarter as Assistant Administrative Officer. 2 or 3 years ago, he works at the VMF Workshop and then VMF Inventory. He gave evidence that on 12th October 1996, at about 6 or 7 o’clock am, an arrest took place in his house. He said Fred Moses come to his house with a Self Loading Rifle (S. L. R.) and requested him to go into truck.
At that time, he was at home with his wife. His parents also were at home with them. He said Fred Moses stood in front of his door and asked him to go to truck. Fred Moses hold the gun and pointed inside the house. He said he had a bad feeling at that time. He thought they took him in order to kill him. He asked why he was requested to go to the truck. He said Fred Moses asked him strongly to go to the truck. Fred Moses was wearing camouflage uniform which is used for bush training exercise.
He testified they took Bongruru at the Seaside and other officers at the Independence Park Area. He recalled they were about 5 to 6 in the truck. He recognized Fred Moses and Willie Harrison. They were taken to Officer’s Mess. There he saw other officers were already in the Officer’s Mess: Patu Louis, Thierry Luan … other officers stay around and outside the Officer’s Mess in full operational dress.
Under cross-examination, he confirmed on 12th October 1996, he was at the workshop and then transferred in 1996 to the VMF Inventory Section. Fred Moses and Willie Harrison worked at that time, with him at the workshop. He is more senior than Fred Moses and Willie Harrison. When he worked with both accused persons, he is not worried about their character and they are not violent person.
He said before 12th October 1996, the situation is not good. There is no good relationship between them. He mentioned that he had no good thoughts when he saw Fred Moses at that time in his house.
He denied he was aware that a truck was sent to this house for emergency purpose. He testified that the situation of 12th October 1996, was unusual because he did not know they will take him at that time. He said they discussed to solve the issue arising in proper and lawful manner.
He said on the morning of 12th October 1996, he did not think of telling Fred Moses to put away the gun. The appearance is different and he had a different feeling.
He insisted also that he worked at the Inventory but he never took the gun at home. He testified he could not say whether Fred Moses gun was loaded or not unless he inspected the gun and the magazine. Usually, the magazine is in the pocket or inside the rifle. He testified he was panic on the appearance of Fred Moses so he did not look properly.
He denied that Fred Moses told him that the Deputy Prime Minister will sign an Agreement. He confirmed Fred Moses told him to go to the truck and then to the VMF Camp. He said he walked toward the truck and Fred Moses walked behind him with the gun. He also said Fred Moses told him that other officers were already taken to the VMF Camp.
He confirmed it was not normal to come to the house with the gun. The rule is to leave the gun inside the truck. He confirmed that if there is no instructions, it is not appropriate for Fred Moses to come with the gun at his house. It is not safe to take the gun. You carry gun during the bush training exercise but not when you go home.
He denied he heard news about the Government to get Foreign Force to come and help dealing with the situation of the Stand Down Group. But he said officers try to solve this difficult issue.
He denied he knew whether police stole the truck driven by Willie Harrison. He said officers and the VMF Commander tried to solve the issue of the payment of allowances by the Government and he denied that his is the reason for him to go with the Defendants to the VMF Camp.
He said he knew that Fred Moses is a member of the Stand Down Group (S. D. G.) and on 12th October 1996 he should have come to his house without the gun.
He said it was only when they arrived at the VMF Camp that he knew that the reason for them to go to VMF Camp was for allowances.
He was questioned about his statement to Police on 26th November 1996 about his case and in particular because he stated there that Fred Moses forced him to go to the truck. He replied that he stated to this effect because he asked Moses why he was going into the truck. Fred Moses did not give any reason but he told him just to go into the truck.
He said also that before he lodged a criminal complaint to Police in November 1996, he made a statement claiming for compensation of Vatu 6,000,000 on 26th October 1996.
He denied someone told him to lodged a criminal complaint to police to support his civil claim.
He also gave evidence that 12th October 1996, was a Saturday, he was out of duty. He said it was about 6 to 7 o’clock am, Mrs. Ishmael was preparing breakfast. When he got to the truck, Ben Bani was not yet there. Willie Harrison who was outside the truck, told him to go to the VMF Camp. After he got into the truck, he saw Fred Moses escorting Lieutenant Bongruru to the truck. Then, he said, he stayed in the truck with Willie Harrison and Bongruru whilst Fred Moses went and got Ben Bani. Then they moved to get Toara Fred Fakao.
He denied that both Willie Harrison and Toara Kalia went to their respective houses.
He confirmed that the appearance and the feeling behind the picking up of the officers are not normal. He said he did not got breakfast and he had breakfast at the Officer’s Mess.
Under re-examination, he said he made a statement to the police after the police arrested VMF Officers. He confirmed he did claim for compensation for what he described as the same experience he had faced during Santo rebellion.
He insisted that his feelings at that time is that he was frightened because the Defendants come and got him with guns.
The second witness is Mrs. Emma Alick. She is the Lieutenant Alick Ishmael’s wife. She confirmed she live with her husband and 4 children and they live at the Vila Seaside Barracks. She testified that she came to Court to tell the Court about the incident which has happened to her husband on 12th October 1996.
She said Fred Moses came to her house and arrested her husband. She said Fred Moses came to her house on Saturday morning and asked her husband to go to the VMF Camp. She said Fred Moses was wearing camouflage full uniform with a gun. She said she did not expect this. At about 6 to 7 am o’clock, she saw Fred Moses at the front door of her house. She said Moses pointed his gun to the door and moving the gun and asked her husband to go to the truck. She said she lost her thoughts. She did not know what is going to happen to him.
She said she did not know why they came to take him. This is the first time a member of the VMF came to her house with gun and took her husband. She said when Fred Moses moved his gun, he said they have already taken John Bill and Toasi. She said her husband went in front and Fred Moses walked behind him with the gun. She said her husband had just surrendered himself. She said they were married since 1982 and that since their marriage, it is not normal for her husband’s work mates to come and got him at the house with a gun.
When she was cross-examined, she confirmed that Fred Moses told her husband that they had taken already John bill and Toasi. She said she did not know who is Toasi but she remembered clearly and she could not forget it.
She confirmed Fred Moses moved his gun for her husband to go to the truck and she gave a piece of bread to her husband. She saw Willie Harrison who told her husband to go into the truck.
She denied she was aware that her husband asked for 6,000,000 Vatu for compensation. She said police officer James Aru took her statement.
She testified her husband handled a gun during the celebration of the Independence day on 30th July but not on different occasions.
She said as an ordinary citizen, she is afraid because she never saw a man coming to her house with a gun.
The third witness is Nambong Bongruru. 39 years, married and had 4 kids. He is a VMF Officer Commanding Transport Officer. He works with VMF for 21 years. He lived at Vila Seaside Police Barracks since February 1995.
He gave evidence that on 12th October 1996, at about 6.30 am he was still in bed, his children wake him up. He saw Fred Moses with a gun. Fred Moses told him to go to the truck and he asked to get a shirt. And he said he no longer questioned him, he had just done what Fred Moses told him to do.
He said Fred Moses did not point the gun to him. But he told him to go in front and Fred followed him behind with his weapon. He said his reaction was not to do anything. He mentioned that his mind had changed. He had no thoughts. He know what they wanted. He knew the Defendants very well.
He said he is in a senior ranking position than Fred Moses and Willie Harrison. He said, in his experience, there was never a situation where a low ranking officer come with gun at his house. The first that occurred was the incident of 12th October 1996. He said, when he walked to the truck, then he saw Narai Yapsei, Toara Kalia and Willie Harrison in the truck. Each of them had a gun but they did not come to his house.
From there, he said they moved to get Captain Toara Fred Fakao. He maintained, it is not normal for a superior ranking officer to be subjected to an order of a low ranking officer.
He testified that they went to the Officer’s Mess at the VMF Camp waiting for the officers to fly the President back for the signing of the agreement. At the VMF Camp, he saw VMF officers walking around with guns. He testified Fred Moses, Willie Harrison, Toara Kalia and Yapasei Narai were in the truck.
Under cross-examination, this witness said he could not spoil the boys but other officers said they lodged criminal complaints against them. He said they discussed before putting their complaints to police. This is the reason why he took time to put the report to police and he said if it is his own case, he would not put any complaint to police.
He further said he made a statement to police and nobody advised him to make his complaint.
He confirmed he could not say what was happened this morning when Fred come to his house before he got up from his bed. What he put in his statement about the knocking on the door, was what his children told him about.
When he was asked as to whether he was advised, he said somebody forced them. He did not think about anything. There are discussions to put claim. He was told after since he was not with them when they discussed about it.
This witness said the Accused Willie Harrison and Fred Moses are his best friends. Fred Moses come straight to this house. He said he trusted him so he follow them. He mentioned also that he had 2 minutes to put his shirt and there is no argument.
Further he denied that Fred told him that the President will come and they sign the agreement. He confirmed, that Fred Moses told him to go to the truck and VMF Camp. When he went to the truck, Lieutenant Alick Ishmael was already in the truck.
He gave evidence that when Toara Fred Fakao come into the truck, he was in the truck. He denied that Willie Harrison got to his place and had tea. He said the accused held on their guns and he and others bent their head.
He further denied he saw Alick Ishmael eating a piece of bread and he himself did not get any breakfast yet.
They then moved to Harry Siltei’s house. He said Harry Siltei’s wife called on Harry. Willie Harrison told her that Harry will come to the truck and they will go to the VMF Camp.
At the VMF Camp, they had tea and something for lunch. After everything was over, at about 5 to 5.30 pm, officers were released and driven back to their homes. He finally said, that the Accused claimed for the payment of allowances on behalf of the officers of the force but did not follow procedure.
Under re-examination, he said he was requested to put a written statement but when he lodged his complaint to police, no one was forcing him to write his statement.
When he was asked why as a superior ranking officer he did not need to order the accused, he said the accused came to the house under their own order. They decide. He had no thoughts to that effect.
He said this action was done on behalf of the members of Force but it was not a normal action.
Mrs. Violet Nambong was the next prosecution witness. She has 32 years, married with Bongruru with 4 kids.
She testified that on 12th October 1996, Fred Moses come to her house and arrested her husband. It was about 6.30 to 7.00 am o’clock. She and the children got up and prepared breakfast.
She testified someone knocked strongly on the door. Her son opened the door. She saw Fred Moses. The children were frightened. Fred Moses stood at the front door. She knew him. He worked with her husband. She said "good morning" to Fred but he responded strongly by saying "go singaotem man blong yu.".
She waked up her husband who asked Moses to wear a shirt. Moses stood there with a gun. Then Fred Moses pointed the gun to her husband back and they went toward the road.
She and the kids were frightened because it was the first time. She never saw a man coming to her house with a gun.
She said she heard a big knocking on the door like kicking on the door. She thought it was a drunken member of her family.
She confirmed her husband go in front and Fred Moses followed him with a gun pointed at his back. She identified Fred Moses in Court.
When She was cross-examined, she disagreed that Fred Moses knocked slowly on the door. She confirmed Fred knocked strongly and kicked the door.
But she conceded that she could not see him kicking on the door from where she was inside the house. She heard a noise and thought Fred Moses kicked the door.
She confirmed that when his son opened the door she saw Fred Moses who told her to call on her husband to go to the truck. She maintained her husband was walking in front and Fred Moses pointed the gun on his back.
She said she saw Fred pointed the gun on the back of her husband. She said she saw from her house, Fred pointed the gun to her husband back and walked toward the road.
She said she made a statement to police on 26th November 1996 to the effect that she saw Fred Moses pointed the gun to her husband.
She insisted that the Defendants used the gun only at their place of work. She was frightened when Fred Moses come to her house with the gun. She thought they are going to shut someone.
She confirmed the gun is used for the work. She was afraid of the gun and when they arrested her husband with the gun he must go. She further explained that it was an arrest when a man come with a gun in your house, he come to do something. She saw same type of arrest during the Santo Rebellion. She said she saw men with gun in the Santo Rebellion doing same thing.
Under re-examination, she confirmed, she sat on the side of her front door and saw Fred Moses pointed the gun in the back of her husband.
She said she observed her husband when he first met Fred Moses, he just stayed quiet. He did not say anything.
She finally testified that usually, when he went to work, he talked to them. During that time, he did not talk.
The next witness is Toara Fred Fakao, 47 years. Married and has 4 kids. He was a former Police Officer. He stopped work with the police force on 3rd December 1998. He joined the police force in 1976. He was a Captain with the VMF. Now he set his own business. He operates a public transport which was involved in an accident.
He gave evidence that on 12th October 1996, at about 6 to 7 am o’clock, he received a message about the death of one of his relatives. He went outside and saw a hilux truck of the VMF Camp stopping next to his house. It was frightening because the people who come from the truck jumped. He said, he felt bad, something must have happened.
He said Fred Moses came and told him "come go long truck, yumi go antap". He said he was afraid and he managed to ask: "please, leavim mi dress up".
He said he saw one Siba outside his house with a gun. Toara Kalia was inside the truck and carried a gun.
He saw Bani, Bongruru, Alick Ishmael so he remained calm. Then they came to take Harry Siltei and they went to Officer’s Mess at the VMF Camp and joined with other arrested officers.
He testified that on their way, Willie Harrison told other Defendants to put their guns down. He said Willie Harrison, Moses Fred, Toara Kalia and Yapsei Narai held their guns at a position to fire.
He said he was afraid. If the gun fired he would be killed. He mentioned Fred Moses, Willie Harrison, Toara Kalia, Ishmael Alick, Bongruru, Siltei, Ben Bani, Narai and himself were in the truck. At the Officer’s Mess they drank tea and were released and went home at 5 pm o’clock.
Under cross-examination, he confirmed that on 12th October 1996 the Defendants used self-loading rifle except Willie Harrison who carried a short gun, a machine gun, not a self-loading rifle.
He could not say whether the gun were loaded with bullets but he said he feared that the gun got fired. He was afraid. He could not see whether there are magazines or not. He said also that the Defendants came with force so he knew they meant it.
He gave evidence also that on the working day, the century officer came to gate by attention.
He insisted that he was frightened because the weapon was pointed to him. He testified he knew the 3 accused are from Tongoa. Harrison called him uncle. He repeated that when he saw the weapons, he was afraid, he losed memory. There was no assurance that he would be safe. He said when the accused came with the gun, he feared they hurt him. They told him to go to the truck. He said he saw the gun and moved. The weapon is pointed to him so he moved.
The Defendants dressed up with camouflaged uniform. Other officers are civilians. He said he must follow what he was told to do.
He confirmed that on the same date, his uncle was dead. He did not mentioned to the Defendant. He said he had no chance to talk.
He said he saw Fred Moses and he clarified that he saw also Yapasei Narai around his house and he made a confusion in his statement when he mentioned about Siba.
He said he did not know whether Willie Harrison went to his house and drank tea. He mentioned that Willie Harrison’s house is closed to his house. He live on the same building with Willie Harrison. Toara Kalia also live almost the same distance with him. He further said he did not know whether Toara went to his house.
He said he put a claim for damages. Louis Patu and John bill are responsible to put the claim for damages.
The Police CID told him to go to the police and to make his statement. He said if the police would not come, he had the idea to lodge the criminal complaint. He confirmed, he put his civil claim first.
Under re-examination, he said when the Defendants come to his house they did not shoulder their gun. The situation was a frightening one. He said he got an instruction to follow.
Again he identified Yapasei Narai as the person he saw around his house with a gun. He confirmed that on 12th October 1996, he followed them because he was frightened. There was an instruction given so he followed it. He lost control.
The next witness is Mrs. Monica Fakao, 39 years. Fred Fakao’s wife.
She gave evidence about the arrest of her husband on 12th October 1996 by the Defendants.
She said she saw Fred Moses with a gun. She was afraid and she went back inside her house. She said also she saw outside a VMF officer from Futuna Island. She said good morning to him he did not reply. She was frightened. She said good morning to Fred Moses, but he said: "talem long man blong yu hemi harry up."
She said Fred Moses and the officer from Futuna as she identified in Court as Yapasei Narai were wearing uniform and carried weapons.
She was cross-examined. She confirmed she made a mistake by calling the officer of Futuna as Siba but she identified Yapasei Narai as the boy from Futuna who came to her house on 12th October 1996.
She confirmed she made a statement to police. It was the first time for her to witness this incident.
She confirmed she said good morning to Fred Moses but he replied: "yu talem long man blong yu hemi harry up".
She said she saw Willie Harrison and Toara Kalia through the window and both were on the truck and they carried weapons.
She confirmed under her re-examination that she saw an officer around her house and she identified the one who put a jacket in Court (Vanuatu color) and who is Yapasei Narai.
The next witness is Harry Siltei. Married, and has 4 kids. He now works at the State Office. He gave evidence that on 12th October 1996, some members of VMF took him from his house at the Independence Park to the Officer’s Mess at the VMF Camp.
On that date, his wife called her at about 7.15 am o’clock. Willie Harrison and Fred Moses requested him to go with them at the VMF Camp.
He said there is no threat on their part but he said he had bad feelings when he saw Yapasei Narai coming with a weapon. He got his shirt. His children were crying and he went with the Defendants.
He said he did not know why they put them into the Officer’s Mess. He said he saw lots of VMF officers around the Officer’s Mess with uniforms and guns. He said they were inside the Officer’s Mess until Noel Tamata came and asked them whether they were with him or not. He said he was put into the Officer’s Mess from 7.15 am to 1 pm in the afternoon.
Under cross-examination, he said Moses and Harrison told him: "uncle mbae yumi go antap fastaem." He denied he knew at that time that it was about the issue of allowances.
He also said Narai come with the gun and told him to go into the truck so he just went into the truck.
He said Fred Moses and Willie Harrison were related to his wife. He mentioned that if there is no weapon, he could ask them whether they need help. He said he could not make excuses, there was weapon. He insisted that there were family ties but there was a request for him to go. He was afraid.
He confirmed also he submitted to Commander Patu Louis a compensation claim of VT4,000,000 for damages. He said officers met together and discussed about what happened to them. He specified he made his civil claim first to the Commander before they held a meeting.
He denied they held a meeting to put a criminal complaint to police. He said also that the delay to put the report to police is because there is an agreement to suspend the Defendants. On the second time, when police arrested the Defendants, the witness said they decided to lodge criminal complaint and he stated the date of his statement to be 25th November 1996.
He gave evidence also that when he was working with the VMF, he was affected to the workshop section and at that time he worked with Fred Moses and Willie Harrison.
He denied he was crossed against the Defendants and he asked "wanem iwrong" and they replied: "no come long truck".
He said he mentioned David Lishi in his statement but he was wrong. It was Yapasei Narai.
Under re-examination, he said he started to be frightened at his house when Yapasei Narai come with the gun.
Mrs. Evelyne Siltei was the second last witness for the Prosecution. She is married to Harry Siltei. She is 34 years and had 4 kids.
She testified that on 12th October 1996, she saw a truck stopped. She saw her tow uncles, Fred Moses and Willie Harrison. Both say good morning and she replied "good morning". They asked for her husband. She said she saw a man with the gun. Her children were frightened.
She confirmed she saw Fred Moses and Willie Harrison who come and asked for her husband and she called on him. Then she saw and she identified in Court Yapasei Narai as the one who come with a weapon.
She testified she saw Toara Fred Fakao, Alick Ishmael, Nambong Bongruru, Ben Bani inside the truck.
Under cross-examination, she was afraid when the man she identified in Court as Narai come with the gun. It is the first time, it happened in her house. She was worried about her children.
She testified Narai stood up on the steps which are underneath the veranda.
The last prosecution witness was James Aru (jn). Married and had 2 kids. He works at Criminal Investigation Department. He said he lived in the same area with Alick Ishmael. He said on 12th October 1996, he saw a truck stopped at the main door. He saw Fred Moses armed and run toward Alick Ishmael’s house. He saw Alick Ishmael walking in front and Fred Moses walking behind him with the gun.
He confirmed while cross-examined that this is an arrest. When a man took a man with gun, it is an arrest. He said that was what Fred Moses did to Alick Ishmael.
That is the end of the Prosecution case.
Section 88 of the Criminal Procedure Code Act [CAP. 136] was read and explained to the Defendants.
VI. SUMMARY OF THE DEFENCE EVIDENCE
The Defence called five witnesses to give evidence: Willie Harrison, Fred Moses, Toara Kalia, Yapasei Narai and Ben Bani.
The first witness of the Defence is Willie Harrison Kaloran. He is a Corporal within the VMF, and acting Sergeant until suspended at the end of November 1996. He was responsible for Northern District until January 1996 when he was transferred to Vila. He worked in the workshop as supervisor in automatic engineering.
He knew about the officers who are the complainants in this case. They are superior officers. They received any order from the Commander and passed the order down to the Corporal for execution of the said orders.
He said Bongruru was an AC officer. He made report to the Accused in the workshop and they carried out the orders. Alick Ishmael was also a superior in 1992 in the workshop. Harry Siltei also worked with the accused in the past in the workshop. Toara Fred Fakao is the witness’s uncle. They resided together and go fellowship together.
This witness said the issue of allowances was a matter of concern for all sections and subsections of the VMF. He said he trained his boys for 2 weeks before 12th October 1996 and they did not work. They executed only urgent and serious orders. During the 2 weeks, they were negotiations to settle the payment of allowances.
He said, requests to settle the allowances were put to immediate superiors. No satisfactory answers were given. They do not know how to deal with the issues of allowances.
During the 2 weeks Stand Down period, the witness drove the 2 spokesman: Samson Kilman and Amstrong Ngwele. He said apart from driving, he did play a role in the negotiations with the Minister of Home Affairs, Robert Karie. They negotiated and reached the agreement that the Government will pay the allowances.
He further said they wanted to celebrate and make the day a big day.
He said also that on the morning of their negotiations with the Minister of Internal Affairs, the then Robert Karie, they informed their superior officers about their negotiations with the Minister responsible for Internal Affairs and also for the Police. He said their superiors were not happy about their conduct without informing them. He knew Louis Patu was hurt as he said. He said they were jealous of what they did because they failed to do what junior officers did.
On 11th October 1996, the Prime Minister left the country on the day of the signing of agreement. He said it was not an appropriate behavior. They have no way to solve their problem. So he said they got the President and used him to talk to the Deputy Prime Minister on Malekula and brought him to Vila for him to sign the agreement on behalf of the Prime Minister.
As to the allegations of the offence of kidnapping which took place on 12th October 1996, this witness explained as follows. On 11th October 1996, in the night, they had a kava night. He drove a truck Nissan Reg. No. 4127. He used this truck to drive the 2 spokesman of the S. D. G. He said police officers stole the said truck from his house. He did mention to Toara Kalia and Saurei and they went to VMF Camp and informed other about it.
He mentioned about the move of the Police Officers wearing masks ad they were dressed up in a way that they will arrest the Defendants. He said they watched the move of the police.
In the early morning of 12th October 1996, they had an idea. They went and got the President. On Friday 11th October 1996, there was no signing agreement but on Saturday 12th October 1996, the Deputy Prime Minister will be back from Malekula and will sign the agreement and this represented a big honour for them.
He said that they carried guns because of a declaration of the then Minister of Justice, Late Father Walter Lini that a Foreign Force will come and arrest the S. D. G. They thought it was proper for them to get armed. And it was the reason to go and get the senior officers with weapons.
This witness gave evidence that he knew Alick Ishmael, Bongruru, Toara Fred Fakao and Harry Siltei. They were very closed. He said he drove the truck at that time of the incident. He thought it was normal practice of the VMF that if there is something, junior officers go and get senior officers from their houses.
He mentioned he went to his house and had tea. Toara Kalia also went to his house. He denied they kidnapped the Complainants. He further explained that the weapon is his tool. He said he was trained to treat the gun as if it was his wife and sleep with the gun. He said, it is not necessary that the Order comes from the Commissioner. If his weapon needs to be cleaned, he asked for his gun and cleaned it up.
He said on that day, it was a big honour for them to go and get the senior officers with the guns. They had a big respect for those officers.
When he was asked as to whether there is need for them to carry weapons on 12th October 1996, he explained that they need to carry weapons because of the safety of the gun itself. Further he said there is an armoury where weapons are kept and there is no need to take the weapons at home.
He further explained that sometime when the armoury officer is not there, an officer could take his weapon at home (he cited an example of Santo).
In respect to the alleged kidnapping of Alick Ishmael, he said after Fred Moses went and got Alick Ishmael, they talked, laughed and Alick’s wife brought him loaf of bread. He said there was nothing wrong that he had noticed at that time.
Bongruru smiled when he came to the truck. Alick dressed in a civilian way. He sat behind him and Moses who were in uniform and sat in front. He said Fred Moses joked to him when he saw Alick Ishmael having a piece of bread and the time was 8 to 8.30 am.
He denied he forced them and said he knew there was an agreement to sign. There is no other reason to force them. He mentioned also that Alick and Bongruru, did not ask why they would go to the VMF Camp. They did not asked why the Defendants carried guns.
He gave evidence that after they took Alick, Bongruru, Bani at the Vila Police Seaside, they went to Independence Park to get Captain Toara Fred Fakao. He confirmed he drove the truck, Fred Moses sat beside him. The truck was a double cabin. He said he lived in a block of the building where Captain Toara lives. Toara Kalia’s house is situated 20 meters from the road. He said he did not see how Fred Moses went and took Toara Fred to the truck, he was drinking tea in his house.
Then they moved to Harry Siltei’s house. Harry’s wife was outside. She is this witness’s cousin sister. Fred Moses was behind him. Both went and talked to her. She then called upon her husband.
He saw Yapasei Narai got out of the truck. Toara Kalia stayed in the truck. Harry Siltei got into the truck and they drove to VMF Camp. He said he did not see whether Harry Siltei was frightened. He said Harry’s wife, Evelyne, told lies to this Court whilst she gave her evidence.
He said in his opinion, the reason to lodge a claim to the Court is to claim for compensation. The officers were bribed to arrest them.
He mentioned also that Harry Siltei, Alick, Bongruru, Ben Bani were dropped to Officer’s Mess. Siba Yamanga was on duty and he opened the gate.
He confirmed VMF armed officers were surrounding the VMF Camp and the Officer’s Mess.
Finally, he maintained that what they did is normal practice. He repeated their senior officers did not have any feeling that they became responsible officers. They did not care to junior officers. He said, today he has good relationship with Harry Siltei, Toara Fred Fakao, they did drink kava together.
He was then cross-examined. He confirmed he worked for 18 years with the VMF. Trained in PNG. He was in charge of the Northern District until January 1996.
He said he heard about the issue of allowances started with the rifle company then spread out to all sections and subsections.
He confirmed that if all sections of VMF are involved, they will use the claim of Command to solve the issue of allowances. He trusted his superior officers. They did not give a positive answer to these issues.
He confirmed, all the sections decide to take actions under the "Stand Down Group". He explained they were uniform, go to the place of work but did not execute orders – except emergency orders.
He denied that there is decision between officers. He confirmed, the then Minister of Internal Affairs, Robert Karie, assured them that the Government will pay their allowances.
He admitted there is a council of Ministers. The Prime Minister was Serge Vohor who was out of the country and the Deputy Prime Minister, the then Sope, was on Malekula.
He accepted that the delay to sign the agreement is caused by the fact that the Prime Minister was out of the country and the Deputy Prime Minister was on Malekula.
He denied that on 11th October 1996, the S. D. G. was not happy because there was no signing agreement at that day. He also denied there was a plan since Friday 11th October 1996.
He accepted he came at the VMF Camp because he heard the siren. Then he explained, when the police stole the truck, they put the siren on and the boys came to VMF Camp.
The vehicle is a police/VMF truck. He said also that around that time, there was already tensions between the police and the VMF officers.
The said truck was used by the CID officers who got involved in an accident and it was put for repair into the VMF workshop.
He confirmed the police took the car from his house because, it is easy for them to do. He denied that the stealing of the truck made the members of S. D. G. angry. He specified that the siren was to inform everybody about what was going on.
He gave evidence also that boys live everywhere and at the noise of the siren, boys come to the VMF Camp to receive next instructions.
He then denied that there were instructions to take Ron Sumsum and the President.
During that time, he said they received instructions from their spokesmen and the decision of the S. D. G. were taken by all members of the group.
He confirmed they took the President to Lakatoro to talk to the Deputy Prime Minister for their allowances and they took a Vanair pilot.
He confirmed also they have access to arms but it is on voluntary basis.
He testified he got instructions to go to Seaside and Independence Park.
He denied they were armed when they went to the Seaside and Independence Park on 12th October 1996.
He denied he went to Alick Ishmael’s house nor Bongruru’s. At the Independence Park, he said he went to his house and had tea.
He confirmed he had a gun which is not in his house but in the office. He got out from VMF Camp with a gun. He repeated the weapon is for his safety and the safety of the weapon itself.
He confirmed there are talks about Foreign Force to arrest them.
He denied that he pointed the gun to a person. He said he never pointed the weapon to anyone on the position to fire.
He said when he had his gun, he kept for a short period of time in his house and then gave it back to the armoury officer.
He gave evidence he saw Fred Moses walking behind Alick Ishmael with his weapon. He confirmed that they took Ishmael Alick, Bongruru, Ben Bani, Toara Fred Fakao and Harry Siltei to the VMF Camp.
He confirmed also that the VMF boys were armed and surrounded the VMF Camp.
He testified that at that time, the Deputy Prime Minister signed on behalf of the Government and Samson Kilman and A. Mwele signed on their behalf.
He admitted the head of the Police Force is the Commissioner of Police but he said he did not know if the Commissioner was there at the time of signing of the agreement.
He conceded that the officers who were taken from the Seaside Police Station and Independence Part were dressed in civilian whereas the members of S. D. G. were in VMF uniforms. And he insisted that the signing is an official matter.
He denied that during official ceremonies, senior ranking Police/VMF Officials were wearing uniforms. He said the 2 spokesmen of the S. D. G. were approved by the VMF Commander. He denied that at the time of the signing agreement, they had forgotten the senior officers.
On 12th October 1996, he knew that Noel Tamata will address the officers and that a Council of Ministers was held. He confirmed also that the members of S. D. G. guarded the Prime Minister’s Office with weapons while there was a Council of Ministers meeting. He recognized that it was not a normal situation.
He said he was not aware about operation Thunderbolt. He denied they had weapons but there was no operation.
He said he is a member of S. D. G. He confirmed that on 11th October 1996, the VMF officers were suspicious to the police officers. They were worried that the police will arrest them and they were also worried about Foreign Force to attack them.
He confirmed that as a soldier, it is normal for him to look at these suspicious.
He denied that if on 12th October 1996, he simply requested the officers without gun, they would not come.
He said when the Government failed to sign the agreement on Friday 11th October 1996, they could not wait until Monday to sign the agreement.
He confirmed that every actions on the Friday night, until the signing of agreement are over, was something he wanted to achieve very quickly.
He confirmed Luc Siba was the Commissioner of Police but not Noel Tamata. And Noel Tamata is not a member of S. D. G. (Stand Down Group). The members of S. D. G. used him to convey their message to the officers at the Officer’s Mess. He denied that Tamata is one of the officers who is not taken to the VMF Camp but he said Tamata on 11th October 1996, had taken over the role as an officer of S. D. G.
He confirmed that they discussed about all the provisions of the agreement. When he was asked as to whether one of the clauses is that no person will be brought to Court, he said he could not recall about the content of the agreement.
He further confirmed that when they carried weapons, one of the reasons is to go out for range training/exercise. The second reason is for the parade and the last reason is for some operations they planned out.
He admitted there was no need for them to carry the weapons to the Seaside Police Station and the Independence Park Area on 12th October 1996.
He confirmed there is an armoury for the Police and VMF. He said at the VMF Camp, officers do not carry guns every day.
He confirmed he took the officers from the Seaside and Independence Park with guns.
Under re-examination, he repeated police stole the truck he was driving at that time. On 12th October 1996, he said they were told to get some officers to the VMF Camp. He was on his way to his house. He said Toara Kalia also wanted to go to his house. He demonstrated different positions to hold the weapons at rest positions. Fred Moses pointed the weapon at the side when he took Bongruru.
He denied they had any intention to use the weapon.
He confirmed the decisions of the Stand Down Group (SDG) were made together as a group and all agreed.
He said the reasons why they decided to take weapons are that there were rumours that a Foreign Force will come, the truck driven by him was stolen and the police were wearing masks. It was unusual.
He further said that the need to take arms and get officers at the Seaside and Independence Park was that there was a Foreign force to come and arrested them.
He finally said that Noel Tamata just joined the S. D. G. on the night of 11th October 1996. They trust him. He cared for them.
The next witness for the Defence is Fred Moses. He is 42 years married with 4 kids and he joined the force in 1980. A corporal, he worked in the workshop.
He gave evidence that on 12th October 1996, at 6.15 am. He went to the Airport to send a parcel to Aneityum for his 2 children. At the airport, he was told that the VMF officers took his uncle, the President of the Republic to Malekula.
He went home and then went to the VMF Camp at 7.45 am.
At the VMF Camp, Willie Harrison told him to go to the truck.
Harrison told him that they will go to the Seaside and Independence Park to take some officers to the VMF Camp.
One officer told him to take weapons. He told Willie Harrison that they did not talked about this. He said Harrison told him to tell the officers to go to the VMF Camp waiting for the signing of agreement.
He said he took Alick Ishmael and Bongruru because he knew them very well.
He said he went to Alick Ishmael’s house and asked him to go to the VMF Camp waiting for the signing of agreement with the Deputy Prime Minister.
He said when Alick Ishmael come to the truck, he did not get inside the truck. He talked to Harrison.
Then he said he went to get Bongruru. He told him to go to the VMF Camp waiting for the signing of agreement. He then went to get Ben Bani.
He confirmed he carried a weapon. He denied he raised his voice. He said he mentioned about the signing agreement. Officers had some understanding so they went into the truck.
He knew Alick Ishmael and Bongruru. He worked with both of them. He denied he kicked Bongruru’s door. He said he trusted Bongruru and he trusted him also. So he knocked slowly on the door.
He denied he moved his gun to frighten him.
He said he just carry out orders given to him by Willie Harrison. He said they give him a weapon but if there was no weapon he would go and told them to come.
He said he carried the weapon for the safety reason.
He denied what other prosecution witnesses said. He said he knew how to hold a weapon in a safety position.
He testified also that they then went and got Captain Toara Fred. There Harrison went to his house. Yapasei Narai went inside the truck. Finally they went to get Harry Siltei.
He denied he raised his voice when he talked to Mrs. Fakao.
Toara Fred Fakao said nothing to him. He told him to go to VMF Camp.
He said he did not see Yapasei Narai turning around Fakao’s house. He said Yapasei was in the truck. He said when he took Toara Fred to the truck, Willie Harrison come back from his house.
Harrison, Toara Kalia, Yapasei Narai, Alick Ishmael, Bongruru, Ben Bani, Toara Fred Fakao and himself were in the truck.
He said Alick Ishmael was sitting in the double cabin of the truck with Harrison and himself.
At Harry Siltei’s house, he leaved his weapon in the truck and went with Harrison to get Harry Siltei. Harrison talked to Harry’s wife. He told Harry to go to VMF Camp. Harry told him to get a shirt and they got to the truck.
He did not see Yapasei at Harry’s house. They dropped officers at the workshop and they were told to go to the Officer’s Mess.
He denied he forced the officers to come with him. He denied he tricked them or induced them to come to the truck. He denied he had any conduct which made them frightened.
Under cross-examination, he said the S. D. G. was formed before 12th October 1996 and its purpose was to protest by wearing uniform to go to work but not executing orders.
He said everything should be concluded by 11th October 1996. He confirmed he was not at the VMF Camp on 11th October 1996. He confirmed he did not know that the President was taken to Malekula. He said he did not know what happened on 11th October 1996 until the 12th October 1996 in the morning when Willie Harrison told him.
He confirmed he got to Alick Ishmael’s house with a weapon. He said when Alick went to the truck, he followed him behind but he did not point his weapon to his back.
He repeated he took the weapon with him because of the safety of the gun. He was asked why he did not leave the weapon in the truck with Harrison, he replied that it depends on him whether he would leave it into the truck or not.
He further said, Harrison and Alick were not in the truck but they were standing. He denied he kicked Bongruru’s door. Bongruru walked in front and he followed him with his gun. He said Bongruru was not frightened.
He gave evidence that he got instructions to make sure that everyone of the officers got to the truck. He said Harrison and himself were sitting in front and Alick did not talk to them.
He further said that he took his weapon to Toara Fred’s house. He held his gun in a rest position. He was then asked "when you went to get Toara Fred, you did not know what other officers who were in truck were doing?"
He replied, Yapasei Narai was in the truck, if he went out and the officers decided to ran away how they would catch them again.
He confirmed he and Willie Harrison went to get Harry Siltei. They did not carry weapons. He confirmed that the following persons are inside the truck: Toara Kalia, Yapasei Narai, Bongruru, Ben Bani, Alick Ishmael, Toara Fred Fakao, Harry Siltei, Willie Harrison and himself.
At the VMF Camp, officers were told to go to the Officer’s Mess.
He said also he did not know which one of the officers is authorized to use the gun that was given to him. He testified that on 12th October 1996, he carried a weapon and after taking officers from Seaside and Independence Park, he put back the gun before the signing of agreement.
Under re-examination, he confirmed the members of S. D. G. stayed together. He thought Harrison must have taken orders to take officers somewhere so that he could give these orders to them to carry out. He said he did not ask from whom Harrison got the orders but he said normally when orders were given from superior ranking officers, Corporal and private officers could not refuse to execute these orders.
But he conceded that he as Corporal, could not take orders from another Corporal.
The next witness was Yapasei Narai, from Futuna island-23 years old, single. He joined police in 1994 and transferred to VMF on same year. He lived at the VMF Camp and he is a member of Stand Down Group (S. D. G.) in 1996.
This witness gave evidence to the effect that on 12 October 1996, he was woken up by the blow of the siren at 5 am o’clock in the morning.
He, like others, was dressed with uniforms and got instructions that a Foreign Force will come so as a group, they decided to take weapons.
On the same day at about 8 to 8.30 am, he got into the truck driven by Willie Harrison. He testified that he was in the truck with Willie Harrison, Fred Moses and Toara Kalia. They went to Seaside Police Station. There, Fred Moses took Alick Ishmael and Bongruru to the truck. Fred Moses took Ben Bani to the truck with the assistance of Toara Kalia and this witness. They got the guns.
He gave evidence that when they brought Ben Bani to the truck, Alick Ishmael, Bongruru and Willie Harrison were in the truck. He denied the officers were forced nor they refused to go to the truck.
At Fred Fakau’s house, he said he jumped off the truck and walked around Toara Fred Fakau’s house with his weapon. He saw Fred Moses talking to Toara Fred Fakau. Toara Kalia and Willie Harrison went to their house. Ben Bani, Alick Ishmael and Bongruru were in the truck. He said he did not see Mrs Toara Fakau, he moved around with his gun to strengthen his body. He said Fred Moses did not see him walking around with his gun.
He gave evidence the officers told stories to each other in the truck and he just walked with his gun. He said he could not leave it with the officers in the truck. It is his safety. If he left his gun in the truck, he would have problems.
He denied they pointed the weapon to the officers. He also denied they used the weapons in a threatening manner.
He sat behind the truck when Willie Harrison drove toward Harry Siltei’s house. He said in the truck, there were Toara Kalia, Ben Bani, Bongruru, Toara Fred Fakao and himself sitting at the back of the truck. And Fred Moses, Willie Harrison sat in front in the first cabine and Alick Ishmael sat in the second cabine as the truck was a double cabine truck.
At Harry Siltei’s house, Mrs Siltei was wipping outside. Fred Moses asked for Mr. Harry Siltei. He said he came out of the truck and stood beside the truck whilst Harry got changed and went into the truck.
He denied he went to Harry Siltei’s veranda. He denied he used the weapon in a threatening manner.
At the VMF Camp, Siba Yamanga opened the VMF gate. He did not know the officers were brought to Officer’s Mess. He denied he forced nor induced Bongruru, Siltei to go to the VMF Camp.
This witness said before 12 October 1996, he did not know Bongruru, Alick Ishmael and Captain Toara Fred Fakau. He knew Harry Siltei only.
Under cross-examination, he confirmed he was a member of S. D. G. The purpose of the S. D. G. is for allowances settlement. In the VMF, there were senior and junior officers. The spokesman of the members of S. D. G. were Samson Kilman and Armstrong Ngwele, who talked on behalf of the group and conveyed messages. The decision was made in groups during the meeting of the members.
He denied he was aware about the decision to go to Seaside Police Station. He just followed others with his weapon.
He testified that he was not sure about the exact time the VMF siren blew. He had no watch at that time.
He confirmed he got his weapon on the early morning of 12 October 1996. He did follow Toara Kalia to Ben Bani’s house because he know Bani’s house.
They wait for Ben Bani to drink tea but Fred Moses come and called Ben Bani to the truck.
This witness denied that if Ben Bani decided to get alternative transport, they will still wait for him.
This witness confirmed the numbers of persons in the truck as testified by other witnesses and he sat behind the truck with his weapon.
He confirmed he walked around Fakau’s house. He also said, anytime he walked around, he held his guns. He admitted he did not leave his guns in the truck with senior officers so he took it with him when he got out of the truck to strengthen his back.
He further accepted that when he walked around, having his back turn to the truck, he could not see what happened in the truck.
He confirmed he jumped out of the truck because the back of the truck is too small and, to allow Harry Siltei to go into the vehicle. He denied he stood up because he was afraid. He said all other officers were armed. He denied he knew what happened on 12 October 1996. He said only Willie Harrison knew.
He again said he did not know about group decision. He had just got into the vehicle. He said he got his weapon for his safety. He accepted that during the night of 11 October 1996 until o’clock he was at the camp.
Under re-examination, he confirmed, he took his weapon because of the Foreign Force and he said also that he took his gun to Seaside for the same reason.
The Defence next witness is Toara Kalia. 40 years he is from Tongoa Island. He is married and has 4 children.
He gave evidence to the effect that he was already in bed at about 8 to 9 p.m. o’clock Willie Harrison came and told him that the truck he drove was stolen by Police officers.
They dressed with uniform and went to the VMF Camp. About 1, 2 or 3 o’clock am in the morning, the VMF siren blew, VMF officers arrived. At about 5 am o’clock, they had a meeting. He was told a Foreign Force will come. Further, he was also told that the Prime Minister was out of the country and did not sign the agreement. He said the group decided to get weapons, to go and get the President of the Republic to Malekula so that he could talk to the Deputy Prime Minister who was in Malekula to return to Vila to sign the agreement that the Prime Minister went overseas without signing it.
He then said, he need to go to his house and went with Harrison and Fred Moses to Seaside Police. He said he did not know that they are going to take these officers and he went into the truck with his gun.
He gave evidence that Fred Moses told him and Yapasei to get officer Ben Bani. He and Yapasei went to Bani’s house. He knocked on his door and said good morning to him and asked him to go with them at the VMF Camp to witness the signing agreement.
Bani replied he did not have tea yet. Then Fred Moses came and told Ben Bani that all his friends were waiting in the truck. So he came and they went to the truck whilst Alick and Bongruru were already in the vehicle.
They moved from there and went to get Toara Fred Fakao. He said he saw Fred Moses went and got Fred Toara Fakao. He went to his house. Willie Harrison also went to his house. He said when he come back to the vehicle, Fred Toara Fakao was already in the truck.
From there, they moved to Harry Siltei’s house. Harrison and Fred went to see Harry’s wife. Harrison spoke to Mrs Harry in her mother tongue language. Harry come to the truck and they went to the VMF Camp.
He said further that he did not force Ben Bani to come neither did he had instructions to force Alick and Bongruru. They were taken to witness the signing of agreement.
He said he saw Yapasei Narai jumped out of the vehicle at the Siltei’s house and stood between the mango tree and the truck but Yapasei, did not go to Harry’s house.
When he got Ben Bani to the truck he had his gun with him. He also had his gun when he went to his own house.
Under cross-examination, he confirmed that Harrison told him about the truck that has been stolen by Police officers and both changed in uniform and went to VMF Camp. The siren blew because of the truck which was stolen and they had a meeting in which they talked about the truck and the signing agreement.
He said they decided to involve the President of the Republic without his knowledge and they took their weapons to get the President so that he could talk to the Deputy Prime Minister.
He confirmed Fred Moses sat with Harrison who drove the vehicle. Alick Ishmael was in the next seat in the double cabin. Bongruru, Toara Fred Fakao, Ben Bani Yapasei Narai and himself stayed behind the vehicle.
He confirmed his evidence that at about 5 am o’clock, they held a meeting in which they talked about Foreign Force, and because of it, they needed to get weapons.
The officers who have been taken, did not take part in the meeting of 5 am o’clock.
He further agreed that there was no need to take weapons, there was no Foreign Force on 12 October 1996. And the officers who have been taken with guns are not foreign force.
He testified that from Seaside, Independence Park to VMF Camp, there was no discussions with themselves and officers taken.
Under re-examination, he reconfirmed, officers taken were not foreign force. He said he did not know what happened in Fred Toara Fakao’s house, Alick’s house and Bongruru’s house. He denied that Harrison and Fred did force Harry Siltei.
He reconfirmed the siren blew between 1, 2 or 3 am o’clock in the morning and they had a meeting at 5 to 5.30 am o’clock.
He gave evidence that during the meeting they talked about the vehicle which was stolen, the signing agreement with the Government and the Foreign Force and they decide also to go and get the officers. But because of the Foreign Force, they decided to get weapons.
The Defence last witness is Ben Bani of 39 years. A Lieutenant in the civilian response force. He is now transferred to Rifle Company in the VMF. Joined force in 1980. Married and has 1 child. He come from Pentecost island.
He gave evidence confirming that on early morning of 12 October 1996, Toara Kalia and Yapasei Narai knocked on his door. He asked them: "Olsem wanem?"
They replied: "You come yumi go long Camp fastaem." The two officers were in camouflaged uniform and had weapons. Both officers, he said were not angry. They held their weapons correctly and the point of the guns were not pointed to him. He said both were smiling.
He went into the vehicle and he saw Alick and Bongruru was just taken in.
He said Alick Ishmael, Bongruru, Toara Kalia, Yapasei Narai and Fred Moses were in the truck and they went to take Toara Fred Fakao.
He gave evidence that to his recollection, Alick Ishmael was a little afraid, Bongruru was not frightened. He said they were not talking to each other. The situation is quiet.
At Toara Fakao’s house, this witness said the Accused Fred Moses asked Fakao to come in the vehicle. Fred Moses did not forced him nor Yapasei. Fred Fakao took his short and come in the vehicle.
Further at Harry Siltei’s house, this witness said Fred Moses and Harrison talked to Harry. He did not hear what they said, he was in the truck. Harrison talked to Mrs. Harry Siltei in their mother tongue explaining that they took him up to the VMF Camp.
The truck stopped in front of the Officer’s Mess. He saw some officers were inside the Officer’s Mess already. He mentioned Louis Patu. They were told they stayed there.
In the Officer’s Mess, the atmosphere was calm. Then he said he started to sing a song in Fijian language. They drank tea. The Police Commissioner Luc Siba was brought in and he was drunk. They were told, Noel Tamata will deliver a speech.
He gave evidence that officers in the Officer’s Mess appointed John Bill and Louis Patu to respond to Noel Tamata’s speech.
This witness said he took part in a meeting held by officers in order to solve the issues raised and he said also that when the Accused come to take him, he knew about the reason behind their move.
He said also that a meeting took place between officers to arrange for the lodging of civil claim. He refused to put civil claim and that is also the reason for him not to put any criminal charge against the Defendants.
He gave evidence further that in his opinion, the action of the Defendants did not amount to an arrest. The Defendants did not force him. They did not touch him. He said this is not a kidnapping. The Defendants asked him if he could go to the VMF Camp. He said, in his opinion, the Defendants did not force Toara Fred Fakao and Harry Siltei. Neither did they touch them. They asked both of them to go to the VMF Camp.
This witness said he was trained with Corporal Fred Moses and Corporal Toara Kalia and he knew and worked with Private Yapasei Narai.
Under cross-examination, he confirmed his evidence given under his examination in chief. Further he said when the Defendants took him from his house to the truck, they had not talked to each other. He confirmed that even in the vehicle, they did not talk to each other. Alick Ishmael was afraid. Bongruru was alright. He conceded also that this is his own assessment.
He confirmed Fred Moses went to take Fred Fakao and officers stayed in the truck. He also said that Alick Ishmael was behind the truck in the cut. They sat in quietly in the truck. He did not remember Kalia Toara jumped out of the truck and talked to his friend but he remembered Kalia sat down in the truck.
Further, at Harry Siltei’s house, everyone including Yapasei Narai and Kalia Toara sat in the vehicle waiting for Harrison, Fred Moses and Harry Siltei.
He confirmed that in the truck there were Bongruru, Ishmael, Fakao, Siltei, Toara Willie Harrison, Fred Moses, Yapasei and Toara Kalia and himself.
He confirmed they stopped in front of the Officer’s Mess. But he could not remember exactly.
He confirmed inside the Officer’s Mess, some officer were already there. He mentioned about John Bill, Louis Patu. They were very quiet in the Officer’s Mess.
He denied he come in and out on several occasions. He denied they drunk alcohol but they drunk tea.
He mentioned that after Noel Tamata’s speech, he knew that they have taken the President of the Republic to Malekula to talk to the Deputy Prime Minister at Lakatoro.
He confirmed, he is a different person than Bongruru and Alick and he has a different view. He said that it was his personal opinion not to lodge any civil claim.
He conceded also that it is his personal opinion that the Defendants did not force officers into the truck and he did not know about these officers views.
He gave evidence finally that after the signing of agreement, he returned home at about 1.30 p.m.
VII. FINDINGS BY THE COURT OF THE FACTS NOT IN DISPUTE AND FINDINGS ON DISPUTED FACTS
A. FINDINGS BY THE COURT OF THE FACTS NOT IN DISPUTE
On 12th October 1996, Defendants Fred Moses, Willie Harrison, Toara Kalia and Yapasei Narai got weapons and took a truck driven by the Defendant Willie Harrison to Seaside Police station and Independence Park.
At the Seaside Police station, Defendant Fred Moses went to Lieutenant Alick Ishmael’s house and took him to the truck.
Alick Ishmael walked in front and he walked behind him with his gun.
Defendant Fred Moses went to Lieutenant Bongruru’s House and took him to the truck. Bongruru walked in front and he walked behind him with his gun.
Defendants Toara Kalia, Yapasei Narai and Fred Moses went to Ben Bani’s house and got him to the truck with weapons.
At the Independence Park area, Fred Moses went to Captain Toara Fred Fakao’s house and took him to the truck. Toara Fakao walked in front and Fred Moses was behind him with a weapon.
Again at the Independence Park area, Willie Harrison and Fred Moses went to Harry Siltei’s house and asked him to come to the truck. They did not bring their weapons to Harry’s house. It is not disputed that the Defendants took 5 officers from Seaside and Independence Part to the VMF Officer’s Mess at the VMF Camp.
At the VMF Camp, the officers were put into the officer’s Mess. Noel Tamata talked to the officers. The President of the Republic was taken to Malekula to convince the Deputy Prime Minister to sign an agreement with the members of Stand Down Group on 12th October 1996.
Negotiations were reached between the Stand Down Group spokesmen and the then Minister of Internal Affairs, Robert Karie, for the allowances to be paid by the Government. It was decided that the agreement will be signed on 11th October 1996. On the same date, the then Prime Minister left the country. No agreement was signed by the Government and the members of the S. D. G.
The members of the S. D. G. representing junior officers were not happy about the way the senior ranking officers of the Force handled the issue of allowances of the members of the Police/VMF Force.
They were not happy that the Prime Minister left the country and no agreement was signed as negotiated between the Minister of Internal Affairs and Minister responsible for Police and spokesman of the S. D. G.
It is not disputed that the VMF officers can carry gun during (1) parade, operation or during the range/training-exercise in the bush.
It is also not disputed that there was a Council of Minister on 12th October 1996 and the VMF officers guarded the meeting with weapons.
The Complainants lodged also civil complaint claiming for compensation.
There were also tensions between police and the VMF officers.
B. FINDING ON DISPUTED FACTS
The evidence of the Accused Toara Kalia show that the siren blows from about 2 or 3 o’clock in the early morning of Saturday 12th October 1996. This was intended to inform the VMF officers members of the S. D. G. that the truck driven by the Defendant Willie Harrison was stolen. The VMF officers dressed up with uniform and come to the VMDF Camp. A meeting was held at about 5 am o’clock on Saturday 12th October 1996. At that meeting it was decided that because the Prime Minister left the jurisdiction on the date where the agreement for the payment of the allowances was to be signed, the VMF officers will be armed.
I reject the Defendants evidence that the reason to take the officers at the Seaside Police station and the Independence Part area was for the Foreign Force to come and attack them. It can be inferred from the instances that the real purpose was to act very quickly by showing to the senior officers as testified by Defendant Willie Harrison that VMF members of Stand Down Group succeed to negotiate for the payment of the allowances on behalf of the police and VMF Force, whereas their senior ranking officers failed to do so. That is why they had not trust in them except Tamata who was cared for them.
I find that the Defendants intended to get the officers at the Seaside and Independence Park with weapons to demonstrate their frustration and as the Defendant explained in his evidence, it was an honour for them to do so.
I find also that there is no operation for the VMF to carry their weapons.
The evidence of Toara show that they decided at the meeting to get weapons and got the officers at the Seaside and Independence Park. I reject part of the evidence that they got armed because of their fear of the Foreign Force. There is no evidence that on 12th October 1996, a Foreign Force come in Vanuatu. Further I find that before the signing of the agreement, the officers who were taken by the Defendants were put into the Officer’s Mess at the VMF Camp with other senior officers.
The evidence is also that Willie Harrison got instructions and gave it to the other Defendants to carry out. I find that one of the instructions was to take the officers at the Seaside Police station and Independence Park with weapons.
Therefore in respect to specific allegations of kidnapping:
* Kidnapping of Alick Ishmael
I find that Fred Moses pointed his gun to Alick Ishmael back and got him to the truck. I accept also Ishmael’s evidence that he did not talk but stayed quiet. He was frightened. This is confirmed by the Defence witness Ben Bani. I reject the Accused Fred Moses evidence on this point. Fred Moses told Alick to go to the truck, he did not mentioned about the signing of agreement.
* Kidnapping of Bongruru.
I accept the evidence of Bongruru that he saw Fred Moses with a gun in his house. Fred told him to go to the truck and he asked to get a shirt and did not questioned him but he just followed what Fred Moses told him to do. Fred Moses did not point weapon to him but he told him to go in front and Fred followed him behind with his weapon. His reaction was, not to do anything. His mind had changed. He had no thoughts. He know what the Defendants wanted.
It is not normal that a low ranking officer come with weapon at his house. This is the first time.
I also accept part of his evidence that he could not spoil the boys but other officers told him to lodge criminal complaints to police. He explained this is the reason why it took time to get to police. He said if this was his own case, he would not put any complaint to police.
He knew Fred Moses and Harrison very well. They are his best friends. He said he trusted Fred Moses that is why he followed him.
I also accept his evidence that Willie Harrison did not go to his place and had tea when Toara Fred Fakao came into the truck. The Defendants were in the truck carrying their weapons and officers bent their heads. I also accept his evidence that Alick Ishmael did not eat a piece of bread.
* Kidnapping of Toara Fred Fakao
I accept Fakao’s evidence that on 12th October 1996, when he saw a VMF Hilux truck, it was frightening. He felt bad. Something must have happened. Fred Moses told him to go to the truck and go to the VMF Camp. He was afraid if the gun fired, he would have been killed. Willie Harrison, Fred Moses, Toara Kalia and Yapasei Narai held their weapons at a position to fire.
He could not say whether the guns were loaded but he feared the guns got fired. His evidence is that the Defendants come with force so he knew they meant it. Although he knew 3 of the Defendants who took him with the weapons, he feared they hurt him. They told him to go to the truck. He saw the gun and he moved. The weapon was pointed at him so he moved.
* Kidnapping of Harry Siltei
His evidence is that Fred Moses requested him to go to the VMF Camp. He said there is no threat on their part but he said he had a bad feeling when he saw Yapasei Narai with a weapon. He got his shirt and went to the truck. Fred Moses and Willie Harrison were related to his wife. Narai came with the gun and told him to go into the truck so he just went to the truck. If there is no weapon he could ask whether they need any help. But he could not do any excuses, there was weapon. He said there was family lines but there was a request for him to go. He was afraid. Defendants Harrison and Moses confirmed Harry’s evidence that no threats or force was used.
Narai’s evidence is that he did not go to Harry’s house. He come out of the truck and stood beside the truck whilst Harry got changed and went in the truck. He denied he went to Harry’s veranda. He denied he used the weapon in a threatening manner.
Ben Bani’s evidence is that Moses and Harrison talked to Harry. Harrison talked to Mrs. Siltei explaining that they will take Harry Siltei to the VMF Camp. Further, he said everyone including Yapasei Narai sat in the vehicle waiting for Harrison, Fred Moses and Harry Siltei. This evidence is consistent with part of the evidence of the Defendant Narai denying he went to Harry Siltei’s house. I reject part of the evidence of Harry Siltei that Narai come to his house with his weapon and told him to go to the truck. I find that Harry was afraid when he saw Narai with a gun near the truck with others.
THE LAW AND ITS APPLICATION TO THE FACTS
A) Kidnapping of Alick Ishmael
1) Remove from one place to another.
There is ample evidence to this effect.
He was taken from his house to the Officer’s Mess at the VMF Camp. Alick Ishmael was carried away from a place he would rather have been if he was able to exercise his free will (at home with his wife and children) (see R. v. Willard (1978) 3 All ER at 163).
This element is proved beyond reasonable doubt.
2) By fraudulent means … or by force.
Evidence is that he was frightened. He saw the gun pointed to him and he moved.
Fear of weapon pointed to him made him moved. This is a case of the threat of force.
The following cases are in support of this view:
Public Prosecutor v. Walter Kota & Ors (1989-1994) 2 Van. L.R. at 664. This case is the authority for the proposition that: "the use of word ‘force’ in section 105(b) refers not only to physical force, but coercion and the threats of force."
PP v. Samson Kilman & Ors, Criminal Case No.6 of 1997. Judgment of Supreme Court (unreported);
Samson Kilman & Ors v. PP; Criminal Appeal Case No. of 1997. (Appeal Court Judgment (unreported)).
3) Without consent.
The evidence is that he did not consent. The gun was pointed to him so he moved.
He was afraid the gun might got fired and killed him. He did not consent. Element proved beyond reasonable doubt.
4) Non existence of lawful excuse.
There is no evidence as to the existence of a lawful excuse to take him. The fact that the foreign force will come does not amount to a lawful excuse to take him to the Officer’s Mess. Neither does the fact that Defendants took him to witness the signing of the agreement is a lawful excuse. This element is prove on the standard required.
The offence of Kidnapping as charged in Count 1 is proved.
B) Kidnapping of Bongruru.
1) Remove from one place to another.
There is evidence beyond reasonable doubt that he was removed from his house to the VMF Officer’s Mess, at the VMF Camp on 12th October 1996.
2) By force or fraudulent means.
There is evidence that Fred Moses took him with his gun but without threat, nor pointed the gun to him. But at the same time there is also evidence on the part of the Complainant himself, Bongruru, that the Defendants Fred Moses and Willie Harrison are his two best friends and he decided to go with Fred Moses although armed because he trusted him. There is a conflicting evidence here.
This constitutes a doubt which must be applied in favour of the Defendants.
The offence of kidnapping as charged in Count 2 is not proved.
C. Kidnapping of Toara Fred Fakao
1) Removal from one place to another.
There is evidence beyond reasonable doubt that this element is satisfied. He was removed from his house to another place. Toara F. Fakao was carried away from a place he would rather have been if he was able to exercise his free will (North Efate to attend the burial of his uncle) [re R. v. Willard, (1978) 3 All ER at 163].
2) By force or fraudulent means.
There is evidence that the Complainant feared the use of the weapon. It is proved beyond reasonable doubt as testified by himself and the Defence witness, Ben Bani. See cases in support: PP v. Walter Kota & Ors – Samson Kilman & Ors v. PP (AC), Appeal Case No. of 1997.
3) Without consent.
The evidence is that he was afraid. The gun was pointed to him so he moved. He submitted himself. There is no consent on his part.
This element is proved on the standard required.
4) There is no lawful excuse.
There is no evidence about the existence of a lawful excuse to take him. The evidence about foreign force is not an excuse to take him. The signing agreement is not either a lawful excuse to take him with arm. This element is proved on the standard required.
D. Kidnapping of Harry Siltei
1) Removal from one place to another place.
There is evidence that he was taken from his house at the Independence Park to the Officers’ Mess at the VMF Camp.
This element is proved beyond reasonable doubt.
2) By force or fraudulent means.
There is no evidence of threat used by Fred Moses and Willie Harrison. An inconsistency transpires from this witness (Harry) evidence bringing in a doubt which is to be interpreted in favour of the Defendants.
This offence of kidnapping as charged in Count 4 is not proved.
VERDICT
1. In respect to the offence of Kidnapping Lieutenant Alick Ishmael, in Count 1:
I find Fred Moses guilty of kidnapping as charged in Count 1, contrary to Section 105 (b) of the Penal Code Act [CAP. 135] and convict him on the said charge accordingly.
I find Willie Harrison not guilty as charged in Count 1 and he is discharged accordingly.
2. In respect to the offence of kidnapping Lieutenant Bongruru as charged in Count 2:
I find the following Defendants:
Fred Moses, Willie Harrison, Toara Kalia and Yapasei Narai not guilty as charged in Count 2 contrary to Section 105 (b) of the Penal Code Act [CAP. 135] and I discharged each of them accordingly.
3. In respect to the offence of kidnapping Captain Toara Fred Fakao, as charged in Count 3:
I find the Defendant Fred Moses guilty of the offence as charged in Count 3 contrary to Section 105 (b) of the Penal Code Act [CAP. 135] and I convict him on the said charge accordingly.
I enter a verdict of not guilty to the Defendant Willie Harrison and he is discharged accordingly.
4. In respect to the offence of kidnapping officer Harry Siltei, as charged in Count 4:
I enter the following verdict to each of the Defendants:
- Fred Moses, not guilty.
- Willie Harrison, not guilty.
- Yapasei Narai, not guilty.
and they are each discharged accordingly.
Full written reasons will be typed and provided to you very shortly.
Dated at Port Vila, this 08th day of September 1999.
Vincent LUNABEK
Acting Chief Justice.
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