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State v Takiveikata [2004] FJHC 265; HAC005J.2004 (24 November 2004)

HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Case HAC0005.2004S

THE STATE

V

RATU INOKE TAKIVEIKATA

Fiji High Court, Suva
23, 24 November 2004
Gates J

JUDGMENT

Mr D. Howard SC, Mr B. Solanki, and Mr A. Singh for the State
Mr G. Wendler and Mr A. Seru for the Accused

[1] The assessors have delivered their opinions. Those opinions were:

On count 1 4 to 1 in favour of acquittal

count 2 3 to 2 in favour of acquittal

count 3 3 to 2 in favour of conviction

count 4 5-0 in favour of acquittal

count 5 5-0 in favour of acquittal.

[2] I adjourned overnight to consider my judgment together with those opinions whilst scrutinising the summing up, additional directions and the evidence in the case.

[3] I direct myself in terms of that summing up with its special directions on a variety of matters, and including the additional directions to the assessors on matters raised by counsel.

[4] So far as count 5 is concerned, the incitement charge relating to 17 September 2000, I concur with the unanimous opinions of the assessors in the opinion that the Accused is not guilty. Turagacati was the only witness who gave evidence of this meeting and of the incitement by the Accused of Capt. Stevens and Sgt Bonafasio. The Accused as I indicated in the summing up denied being at such a meeting in his police interview. Even more significantly the two persons alleged to have been incited did not give evidence of it either. It may well be that Turagacati was confused over the matter and that it may have formed part of events at some other meeting on another day. The prosecution have not proved this allegation beyond reasonable doubt, and I acquit the Accused on this count.

[5] The prosecution led evidence of the visit of the Naitasiri delegation to the military barracks. The delegation was headed by the Accused as paramount chief for Naitasiri. I have already set out the events that took place at the officers' mess that day, 6 July 2000 in my summing up.

[6] Capt. Gukimaleya said that the request of the spokesman Rinakama in the Accused’s presence was for the Commander to relinquish his appointment. I was impressed by this witness who gave clear evidence and I accept his evidence as truthful and accurate. The request for the Commander to step down was repeated in the kamunaga presentation which followed. When the Commander eventually arrived from the press conference and spoke to the Accused, the matter was raised again and the Commander told him he was not going to give up his appointment.

[7] This account was supported from the Naitasiri side by Ratu Vuki Qiolevu, the Accused’s cousin brother, a member of the delegation. I believe he told the truth on this issue also, which I have set out in greater detail in the summing up. Whatever the ups and downs of his family relationship with the Accused, this witness I believe told the truth, on the small compass of evidence on which he had to testify.

[8] In his statement from the dock the Accused said he was hearing from people who came to see him of the request of others for the Commander to step down. No doubt they came to him since he was seen as a powerful and influential figure currently then on the national stage. He had been the negotiator at the time of the hostage crisis, had been offered a ministerial appointment in the interim civilian government, and had been a co-signatory to the Muanikau Accord.

[9] The Accused said “As a Turaga, I don’t do things my own way. I do things that’s wanted by the public or members of the vanua.” He said he was accused of betrayal after the storming of Kalabu where it was alleged there had been rough treatment meted out to the people who had gone there from Parliament after the hostage crisis ended.

[10] It would appear the Accused decided then or soon after that having failed to persuade the Commander to resign, or the senior officers in the army to persuade the Commander to resign, to embark on a clandestine scheme to take over the camp. For this he needed to use the disaffected CRW soldiers.

[11] To make the initial contacts with these soldiers he was able to use the small-timers Turagacati and Kade. The visit of the Accused and his delegation to the camp clearly illustrated his then true disposition towards the Commander. The acceptance of that evidence means that the Accused was lying when he said he had never suggested the Commander was to be removed or arrested. I find that denial to have been a deliberate lie.

[12] It may well have been that both Turagacati and Kade felt they were basking in the Accused’s reflected glory at the time when they joined up with the Accused, going to prayer meetings and running errands for him. For at that time from July 2000 onwards, the Accused as defence counsel had suggested, had acquired a significant media profile.

[13] The defence also suggested Turagacati was a conman for describing himself as a minister. More accurately he was a trainee minister, but one who had been in the field for some years and who had come to Fulton College to do his Theology Course. I did not conclude from this description that he was a conman. He and Kade undoubtedly got carried away with their work in helping the Accused to change the Commander. The Accused had said the taking over of the camp and the changing of the Commander was not the end of the programme. Other changes needed to be done in the country as well.

[14] Turagacati was not an easy witness to evaluate. There were long pauses before he answered some questions. He said he had been educated up to Grade 4. He had a great deal to remember of events. Being 4 days in the witness box, not unnaturally, he seemed to grow tired. I believe firmly he was trying to tell the truth about events 4 years ago. The events of 2 November when the takeover failed, when he and Kade were on the run and when he was questioned at the camp, appeared to be very painful memories for him. I did not conclude he was trying to make any less of his folly before this court.

[15] I believe and accept his evidence that the Accused arranged funds for the rental car, following his request to the Accused in early August. The car was to be hired to the Accused’s knowledge to contact CRW soldiers. It was to make it easier for Turagacati to move about without too many questions being asked at military road blocks. I accept his evidence when he said that the Accused would make the arrangements for the rental car and that the Accused told Turagacati to come to the office and to pick up the money for it.

[16] I accept Turagacati’s evidence on this incident. No doubt the Accused thought the provision of the rental car would help to locate and involve CRW soldiers still on the run, who might be suitably disaffected material to tap into for help with the takeover and with the dislodgement of the Commander.

[17] According to Turagacati it was the Accused who asked for him to set up the meeting in Deuba with Cpl Peni. Peni had phoned the Accused whilst Turagacati was with him after a prayer session. Kade supplied transport for the Sunday meeting, 6 August. Turagacati explained in cross-examination why he deducted it was 6 August. He arranged the ‘A’ frame bure for the meeting. On the day regular contact was maintained by mobile phone. Turagacati gave a good deal of detail about this meeting and subsequent events.

[18] When the meeting eventually started, the Accused expressed disappointment at what had happened at the hands of the soldiers at Kalabu and Labasa, and the brutalising of the civilians. The Accused asked Peni if he could take over the army camp at Nabua. Peni said yes and added that he had already made an exercise. He suggested contacting other CRWs, and mentioned Bonafasio’s name.

[19] Kade gave a similar account of the meeting at Deuba and of its arrangements. I believe Kade’s evidence on this incident also. I do not believe there has been collusion between him and his close friend Turagacati. There were variations throughout their evidence and in details they were slightly different. His answers to Mr Wendler at times showed stubbornness and awkwardness. Both witnesses had been misguided to an extreme.

[20] Both knew the game was up when they were arrested. Both proposed to plead guilty when first at court. Both were shocked to see that the lawyer Mr Bulewa had been arranged for them by the Accused. They were advised to plead not guilty. From a letter which was put to them in cross-examination it appeared that advice seemed designed to protect the Accused and not themselves. They both said it was not written on their advice or instructions, nor had it been shown to them. I am convinced they were, and knew they were, as Turagacati said, “guilty in their hearts” and had no serious contest to the charges they faced before being granted immunity. I do not believe either of them had a script to follow. Each spoke from the heart in his evidence and I believe truthfully, if at times awkwardly. Kade seemed less able to recall detail than Turagacati. Their evidence largely dovetailed with each other. Neither witness was shaken in cross-examination about the Deuba incident.

[21] I find the Accused did incite Cpl Peni advisedly as in the charge. The charge has been proved beyond reasonable doubt and I convict him on count 1.

[22] Count 2 concerned the meeting at Capt. Stevens brother’s house in Ragg Avenue. There were variations in the accounts of the main witnesses. These did not impinge on the remembrance of the main matters discussed. The Accused, according to Sgt Bonafasio, expressed disappointment with the Commander over the Kalabu incident. The Accused said he wanted the Commander arrested. Capt. Stevens agreed to do this. In turn in his evidence Capt. Stevens recollected that the Accused said he wanted the Commander replaced. The Accused asked that the camp in Nabua be taken over. There then followed discussion on some of the logistics involved and of certain requirements Capt. Stevens wanted from the Accused. This concerned weapons and the part that the vanua could play.

[23] Both Bonafasio and Stevens were deeply implicated in this criminal activity. They have paid dearly for their involvement. It seems clear from their demeanour and conduct in the witness box that they realized what grave and life spoiling decisions they had made when getting tied up in the takeover. I saw no sign of collusion. Both showed a good deal of naivety about that involvement. They did not say who the backers of the mutiny were. I did not consider they were concealing knowledge. Rightly they were not asked for their surmises. They only dealt with the Accused. In common parlance, Stevens’ life has been ruined. Both have little to look forward to. Their careers in the elite unit of the army have ended in ignominious dismissal.

[24] I find that they have told the truth as best they could recollect, without “agendas”, concerning this meeting at Ragg Avenue.

[25] According to Turagacati’s account it was Capt. Stevens idea to meet at Ragg Avenue rather than Nausori on Thursday 17 August. He got a lift with a friend called Nacanieli. He no longer had the rental car and so Nacanieli drove him and Alava, who was collected on the way, to Ragg Avenue. They waited for the Accused in Salesi Street. They drove ahead to the Stevens house. His account of what was said by the Accused was very similar to the accounts of Bonafasio and Stevens. The Accused said he wanted something done to the army. He was not happy with what was going on and he requested Stevens and the two CRW soldiers to do something to take over the camp and change the Commander. He also discussed Stevens requirements for civilian support and the Accused promised him as much as he wanted.

[26] I believe these three key witnesses in their account of this meeting. The Accused, by his words, incited the three soldiers named in the charge. I am satisfied beyond reasonable doubt that the prosecution has proved count 2 [inciting mutiny].

[27] Count 3 alleged the incitement of Capt. Stevens and Sgt Bonafasio at the Naitasiri Provincial office in Nausori. The State says this was the second meeting where there was discussion of the detailed requirements for the takeover, that is excluding the meeting with Cpl Peni at Deuba.

[28] The Accused admitted in his statement in court, being at the Sunday meeting. However he said he advised Stevens to tackle the Commander himself on what the army had done. As far as he was concerned, he the Accused had done his duty.

[29] Bonafasio said the Accused spoke of the need for the Commander to be arrested quickly. Discussions took place of the support required. Stevens and Turagacati confirmed the details of what the Accused had urged at this meeting.

[30] I am satisfied beyond a reasonable doubt that the Accused did incite the named soldiers at this meeting also, and I concur with the majority opinion tendered by the assessors on this count [count 3].

[31] As for count 4, I have already referred to the variations in accounts as to the exact quantity of mobile phone equipment, its specifications and to whom it was delivered. These were not central to the issue. It is accepted by the Accused that the equipment was given. Its purpose was disputed. Both Kade and Turagacati deal in their evidence with discussions with the Accused on what was needed, why and how it was to be arranged, and that purpose was to assist the coordination of the takeover.

[32] Stevens had asked for assistance with mobile phones at the 2nd meeting at the Accused’s office. Good communication was essential for the takeover. Bonafasio also said the Accused asked him if he had a vodaphone and if not he would provide one.

[33] Firmly I believe Stevens, Bonafasio, Kade and Turagacati on this issue. I am satisfied beyond a reasonable doubt that the Accused is guilty of aiding soldiers in an act of mutiny [count 4], and I convict him on that count.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Windeyer Chambers, Sydney, Australia and A. Seru Esq., Suva