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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC0028 OF 2003S
STATE
v.
RATU JOPE SENILOLI
RATU RAKUITA VAKALALABURE
RATU VILIAME VOLAVOLA
ISIRELI LEWENIQILA
PECELI RINAKAMA
VILIAME SAVU
SUMMING UP
Madam Assessors, Gentlemen Assessors.
It is my duty to sum up this case to you. In doing so, I shall direct you on matters of law, which you must accept and act upon. In other words, you must apply the law that I direct you on in this case.
As far as the facts of this case are concerned, however, what you think really happened on the 20th of May 2000, which witnesses are reliable and so on, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to express any opinion on the facts of this case, then it is entirely a matter for you whether or not you accept what I say or form your own opinions. In other words, you are the masters of fact. You are the judges of fact.
Counsel for the prosecution and for the defence have made strong submissions to you as to how you should find the facts in this case, they have the right to make such comments but you are not bound in any way by what counsel on either side has told you about the facts of the case. If you think that the comments they have made appeal to your common sense and judgment, you may accept them. In particular counsel ask you to draw inferences from acts done or words spoken by one or other accused particularly on the videos seen. Whether you accept these inferences as a matter of common sense is a matter for you but you may decide to adopt your own views. Remember that counsel cannot give evidence. They can only make submissions to you about the evidence led. You may accept or reject them as you see fit.
You will not be asked to give reasons for your opinions and your opinions need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me but they will carry great weight with me when I deliver my judgment.
On the question of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the accused persons. This burden remains throughout this trial upon the prosecution and never shifts. There is no obligation upon the accused persons to prove their innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he or she is proved guilty.
The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused’s guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused.
Your decisions must be based exclusively upon the evidence which you have heard in this court and upon nothing else. Your duty is to apply the law to the facts adduced in evidence in the course of this trial. There has been a great deal of media attention to this case. Please disregard anything said in the media and concentrate only on the evidence.
There are 6 persons in the dock. I must direct you as a matter of law, that you must consider the evidence against each accused separately. Indeed I will be summing up to you on that basis. You must not assume that the guilt of one means the guilt of the others. There is a further matter that I must address you on. Each of the accused is a prominent member of society. The 1st accused is the Vice-President of Fiji, the 4th is a Cabinet Minister for instance. You must in your deliberations remember that the law is the same for everyone and that people charged with criminal offences must submit themselves to the same processes irrespective of social position and status.
Mr. Singh for the 2nd accused, in his closing address suggested that the 2nd accused was handicapped by lack of representation at the beginning of the trial. However you will no doubt recall that I took great pains to remind the 2nd accused of the areas of evidence that he should consider cross-examining on, and you must assume that he was not handicapped. In any event he is now represented by counsel.
The Law
Each accused is charged with the same offence. They are each alleged to have on the 20th of May 2000, not being compelled to do so, taken an engagement in the nature of an oath purporting to bind each accused to commit the offence of treason, an offence which was then punishable by death.
This offence has several elements:
I now deal with each element in turn. It is not in dispute in this case that each accused took part in what has been called a swearing-in ceremony on the 20th of May 2000. Thus, the identity of each accused is not an issue in this case.
However, it is the defence of the 2nd, 3rd, 4th, and 5th accused that they were compelled to take the oath they did on the 20th of May 2000.
In law, this element of the offence is what is called a negative averment. It is an exception to the general rule that the burden to prove the accused’s guilt is on the prosecution. In this case, it is for the accused to prove to you, on a balance of probabilities, that they were compelled to take part in the oath-taking ceremony. The question for you, is whether the defence have shown you that the accused were probably compelled, or that it was more likely than not that they were forced to take the oaths.
Duress
The defence of duress is that an accused says that he committed the offence because of fear produced by threats of death or grievous bodily harm so that his wish not to commit the offence is overborne. The threats of death or grievous harm must have been operative at the time of the commission of the offence. To give you an example, a person who assaults another on the orders of someone holding a gun to his or her head is not guilty of assault because the offence was committed under duress. The test for duress is partly subjective, and partly objective. This is because the law requires that accused persons should have the self-control, and strength of character expected of ordinary citizens in the accused’s situation. The test is therefore whether the accused was in fact compelled to offend and whether an ordinary person in his place would have done the same. Relevant in considering the defence, is the nature of the threats and whether they were made in fact, whether the accused was actually affected by those threats, whether a sober person of reasonable firmness of character sharing the accused’s characteristics and placed in the same situation would have succumbed to the threats, and whether the accused had any opportunity to escape, or failed to avail himself of an opportunity which was reasonably open to him, to render the threat ineffective. If you are of the view that the accused could have avoided the swearing-in ceremony for instance, could have left the Parliamentary complex given the circumstances of the events and the personal characteristics of the accused, then the defence is not available to him. Remember that it is for the defence to prove to you that it is more likely than not that the accused was taking part in the oath-taking under duress, and not of his own free will.
The next element of the offence is that each accused took an engagement in the nature of an oath. This is a question of fact for you to decide on the facts of the case. However I must direct you as a matter of law, that it matters not whether the oaths taken were oaths in law or not. What you must ask yourself is whether the accused persons intentionally took an engagement in the form of what appeared to be an oath. If you are satisfied of this element, you need not ask if the oaths taken were lawful or satisfied the legal definition of an oath. However, you must ask yourselves whether the accused voluntarily and intentionally took an engagement in the nature of an oath. Thus if the accused never intended to take an engagement in the nature of an oath on the 19th of May, if they for instance thought the entire ceremony was a false ceremony, or a pantomime, then they never intended to take an engagement at all. Let me give you an example. When you came to this courtroom you each took an oath on the Holy Book. You each said as follows:
“I swear that I shall well and truly serve as an assessor to this Honourable Court, and will true opinion give without fear, favour or ill will, in accordance with the evidence and the law. So help me God.”
For all bystanders and observers in this courtroom it appeared that you were intentionally taking an oath to serve as assessors and to give your true opinion without fear or favour. However, if we attend a school concert and the Form 5 students enact a courtroom drama, and the actors read out this same oath, it is perfectly obvious that the students had no intention to take an oath, it was just a drama or a play.
So in order to decide whether or not there was an intention to take the oaths in this case, you need to look at the context of the oath-taking ceremony, and of course the statements of the accused persons to the police and in this court. I will return to this element later. However it was suggested by one counsel in his address to you that the prosecution had to prove that the accused intended to commit treason. That is not correct. Whether or not the accused intended to commit treason is irrelevant. It is not an element of the offence. Nor is it an element of the offence that the accused intended to be bound by their oaths.
The next element of the offence is that the oaths taken by the accused purported to bind them to commit treason. The word “purported” simply means “appeared”, or “claimed”, and it refers to the professed or apparent meaning of the oaths. So the question for you is whether on the ordinary meaning of the oaths to the accused appeared to be bound to commit the offence of treason. You are not asked to consider whether the accused did in fact commit treason. They might for instance have walked away after the swearing-in ceremony and thereafter had nothing to do with the events in Parliament or with the interim Speight Government. That does not matter. What is relevant is whether, at the time of the swearing-in ceremony, the accused persons appeared to a reasonable person, to be swearing to do things, which if done, would have been treason. So the question for you is, what apparently was the purpose of the oaths taken? What were the accused binding themselves to do? What matters, is what appears to the ordinary person to be the consequence of the ceremony. Does it appear that the accused were binding themselves to do something which in effect was treason?
What is treason? Treason is any act or acts done, for some public or general cause, to overthrow or remove the established Government, unlawfully and by force. Treason includes any act of forcible resistance to the authority of the government of the day in some public way. A takeover of Parliament, and the taking of the Government as hostages, in order to prevent the Government from lawfully exercising its powers, or of the Head of State from doing so, is treason. The forming of an illegal or rebel government to replace the lawful government is treason if accompanied by an intent to so replace the lawful government by illegal means.
If you are satisfied beyond reasonable doubt that the accused were apparently binding themselves, or promising to take positions in the unlawful Speight government, set up to replace the Chaudhary government, and the Head of State Ratu Mara, then you can accept that the oaths taken purported to bind the accused persons to commit treason.
In this case you do not need to ask yourselves whether these accused persons committed treason nor whether they were part of any armed takeover. Nor do you need to ask if they intended to commit treason. You need to ask yourselves whether the oaths they took appeared to a reasonable on-looker to bind them to acts which prevented the government from exercising its lawful powers, and which replaced the government of the day then in custody. You need to further ask yourselves whether the engagements they undertook or swore to take appeared to prevent or hinder the Head of State from assuming executive authority or from exercising his lawful powers.
This element is in dispute so, if you accept that each accused took the oaths in question, you need to ask, what did it appear they were bound to do? Did the Speight government appear to replace the lawful government then in custody? Did it appear to usurp the powers of the President who was still in Government House and in executive control of the country? If you think that it would appear to a reasonable person that the Speight government was intended to replace the lawful government and the President, then the oaths taken purported to bind the accused to committing acts of treason.
Those are the elements of the offence charged.
In most cases the motive of an accused person is not an element of the offence, although the motive of the accused can assist you in understanding the facts of the case. The prosecution does not have to prove motive. However in this case, all accused persons, except for the 6th, have raised either necessity or duress, so their motives for taking the oaths are relevant to the question of the guilt or otherwise of the accused. However, it is not for you to make moral judgments about whether the cause of George Speight’s coup was justified, or whether the accused were wise to take part in the Speight government. If you are satisfied beyond reasonable doubt that the accused took the oaths, freely and not under compulsion or necessity, and that the oaths appeared to bind them to commit treason, then it is your duty to express that opinion, without making any further judgment for instance on the rightness or wrongness of the coup. Everyone in Fiji has views on the 2000 coup. It would be remarkable if that were not so. However, you must put those views aside in this case, and must decide on the guilt or otherwise of the accused on the basis of the law and the evidence.
Necessity
I now turn to the law on necessity, which is the defence raised by Ratu Jope Seniloli. A person has a defence to a criminal charge if the commission of the offence was necessary and was reasonably believed by him to be necessary for the purpose of avoiding or preventing imminent death or serious injury to himself or to others, that breaking the law was the only realistic choice available to avoid that imminent peril, and that the crime committed was proportionate to the evil avoided.
In considering this defence, the questions for you are –
It is for the prosecution to prove to you, beyond reasonable doubt, that the 1st accused did not commit the offence because of necessity.
I have several other directions to make to you on the law. Firstly you have seen certain video footage of the 19th and 20th of May 2000, and have been given certain transcripts of what was said in two of those videos. I must direct you that the actual evidence is what you saw on the tapes, the transcripts are only given to you to allow you to follow what is said especially when the sound recording becomes indistinct. Further, you must not speculate about what was being said when parts of the tape were removed. What was removed is irrelevant to this inquiry. You must direct your minds only to what you saw and heard.
You have also heard the contents of interviews being read out by the police witnesses of the accused persons. I must direct you that an out-of-court statement by one accused implicating another, is only evidence against the maker of the statement. It is not evidence against the other accused. Out of court statements are only evidence against the maker.
You have heard some evidence of other people at the Parliamentary complex and of other people at the oath-taking ceremony. They are not before you and you must not speculate about why they are not here or why they were not prosecuted. That is irrelevant. You must only consider the evidence against these accused.
Lastly, you have heard some of the accused saying that they did not know that taking the oath in the ceremony was unlawful. In particular Mr. Savu said that he thought that Speight was in effective control and that the government was legal. I must direct you as a matter of law that ignorance of law is not a defence. If a person is caught over-speeding on the Nadi-Suva Highway, it is no defence for him to say that he did not know that it is against the law to over-speed. Similarly in this case it is no defence to say that the accused did not know it was unlawful to commit the offence, or that he did not know that the Speight government was illegal.
The evidence
There are a number of matters in this case which are not in dispute and I will remind you of those first. Much of the evidence of Mr. Mahendra Chaudhary, Mrs. Jokapeci Koroi, Mr. Leo Smith, Mr. Leone Tuisowaqa and Ratu Cokanauto is not in dispute. It is not disputed that on the 19th of May 2000, Parliament was in session. The lawful government of the day was the People’s Coalition, and the lawful Prime Minister was Mr. Chaudhary. While the Lower House was in session that morning, a group of armed men led by George Speight came into the House and took hostage the members of Parliament. On the 19th and 20th of May the government of the day was held hostage at the Parliamentary complex.
It is not in dispute that on the 19th and 20th of May 2000, His Excellency the President, the late Ratu Sir Kamisese Mara was at his post of Head of State and that he was taking steps to liaise with the military, the police, the judiciary and the civil service to contain the law and order situation.
It is not in dispute that some members of the Government and the Opposition were asked by George Speight to help him form a Taukei Civilian Government. Nor is it in dispute that some of these members of Parliament refused the offer, or accepted it, only to refuse it later. In particular you have heard the evidence of Mr. Leo Smith, Ratu Cokanauto and Mr. Tuisowaqa that they either did not accept the positions offered or refused them later and did not attend the swearing-in ceremony of the 20th of May.
All accused persons agree that on the 20th of May 2000, they attended a ceremony at the Parliamentary Complex at which each of them took what appeared to be an oath, to become the Interim President (in the 1st accused’s case) and Interim Ministers in this Taukei Civilian Government. The contents of the oaths taken are almost identical, and I will remind you of the contents again in the course of this summing up. The contents are not in dispute and of course you have seen the video recording of the ceremony itself.
It is not in dispute that each accused person took part in this ceremony, and took what appeared to be an oath, to be part of the Taukei Civilian Government set up by George Speight.
In the case of the 1st and 6th accused it is not in dispute that they took part in this ceremony voluntarily and willingly. In the case of all the other accused, they say that they were compelled or forced to take part in the ceremony. All accused persons further say that the oath-taking or swearing-in ceremony was not done as an act which purported to bind them to treason. In other words, they say that the ceremony itself did not purport to bind them to commit treason.
Because these are the issues which are really in dispute in this case, you must look very closely at the events surrounding the ceremony, in particular on the 19th and 20th of May. In particular you must consider the facts in the light of the legal definition of compulsion and necessity, which I have outlined to you, and of the legal definition of the offence of treason.
The 2nd accused Ratu Rakuita Vakalalabure, the 3rd accused Ratu Viliame Volavola, the 4th accused Mr. Isireli Leweniqila, and the 5th accused Mr. Peceli Rinakama were all members of Parliament at the time of the takeover of Parliament. They were all forced to vacate their seats at gunpoint and it is not suggested by the prosecution that any of them was part of the actual takeover. They were taken out of Parliament at gunpoint and at all the relevant times, there were armed men around the Parliamentary complex.
Mrs. Jokapeci Koroi in her evidence said that after the takeover, Ratu Rakuita Vakalalabure walked into the Government Office with others and said “Madam you are to vacate this office.” She asked why and he said, “We are taking over.” He also asked her how many direct telephone lines they had in the office.
The evidence of Ratu Cokanauto was that the indigenous Fijian members of Parliament were kept separate from the others, in the Parliamentary chambers. Some of them asked to speak to George Speight to question him about the hostage situation and the looting and rioting in Suva. They met with Speight on the 19th of May late in the afternoon. Mr. Rinakama, Ratu Viliame Volavola, Ratu Rakuita Vakalalabure, Ratu Cokanauto and Mr. Leo Smith attended this meeting. At this meeting Speight told the Parliamentarians that he did not know what to do next. However he introduced Timoci Silatolu as the new Prime Minister.
On the same night there was another meeting with Speight. There was a circular being circulated, which had names next to Cabinet posts. As Ratu Cokanauto left, Ratu Rakuita, the 2nd accused, said: “We’ll not give you Fijian Affairs, but Foreign Affairs.”
On the 20th of May the same people except for Mr. Smith attended a third meeting with Speight. At this meeting a time was fixed for the swearing-in ceremony. Speight said that those who were to be appointed for the swearing-in were to leave Parliament under armed escort. The swearing-in was scheduled for 11am. Ratu Cokanauto, and the other Fijian Association members, including Ratu Volavola and Mr. Rinakama then met at their Parliamentary office. At that meeting Ratu Cokanauto told the others that they should take the opportunity to leave the Parliamentary Complex and they should not return because as he said: “This whole thing is illegal.” He said they should leave the complex, remain out and make contact outside.
Ratu Cokanauto and Mr. Tuisowaqa then left in their cars. They were allowed to leave because they said they needed to get ready for the swearing-in. They did not return. They did not see Ratu Viliame Volavola or Mr. Rinakama, leave the complex. Ratu Cokanauto said that the reason he would not take part in the interim Speight government was because it would have been “legitimising the wrong that had initially taken place.”
Mr. Leo Smith was an independent member of Parliament on the 19th of May 2000. He said that at the time of the takeover, George Speight said that his was a civilian takeover of Parliament and that he would call on members to serve the new regime. He called out the names of Ratu Timoci Silatolu who accepted, Ratu Cokanauto who needed time to consider, and Mr. Isireli Vuibau who refused. Mr. Smith said that at the first meeting he attended with Speight, Speight said that he had abrogated the Constitution, that he had appointed Timoci Silatolu as Prime Minister and the 2nd accused Ratu Vakalalabure as the Minister for Home Affairs. He said that at this meeting neither the 2nd accused, nor the 4th accused who was also present, was under custody or under guard. There were discussions about the appointment of the new regime and the passing of decrees. There were subsequent meetings but Mr. Smith refused to attend them because as he said – “I thought what was going on was not right and I just wanted to stay out of it.” He remained a hostage there for 56 days.
You may think, having heard this evidence, much of which was undisputed, that the formation of a government to replace the Chaudhary People’s Coalition Government was the intention of those who took over the government from the very first day, that is, the 19th of May. Indeed the evidence of Mr. Chaudhary was that he heard Speight say on the 19th of May that the purpose of the coup was to remove the elected government, replace it with an indigenous government and abrogate the Constitution. You may also think that the decisions made about that ceremony were made by those responsible for the coup, and that the formation of a new government was an act in furtherance of the takeover itself. This is of course a matter for you.
The private secretary to the late President, Mr. Joseph Browne gave evidence. He said that on the 19th and 20th of May 2000, the President was in executive control over the country, that he had been instructed to take to the Government Printer on the night of the 19th of May, a draft of the Public Emergency Regulations. He identified the copy Regulations Ex. 9. This document was tendered because it shows that the President was taking steps to control the situation. In that sense it has the same value as the video of the President’s speech which you saw. You need not be concerned with the contents of the Regulations. They are not relevant to the trial. The Regulations are only there to show that the President was taking steps to deal with the crisis.
Each accused person was interviewed by the police in relation to his role in the swearing-in ceremony. Each interview is evidence only against its maker. You may think that the statements of the accused under police caution, throw some light on their conduct on the 19th and 20th of May 2000. What weight you put on each is a matter for you. However it is not in dispute that the statements were given by each accused freely and voluntarily. Mr. Sharma, Mr. Singh and Mr. Seru however submit that the questions were unfair in that the accused had no opportunity to explain that they were under compulsion.
The 1st accused, Ratu Jope Seniloli said that in May 2000 he was the President of the SVT Party. He denied that there had been meetings convened to weaken the Labour Government and said that although Speight had rung him on the 18th of May declaring his intention to takeover the government he did not believe him because he did not think that Speight had military support. On the 20th of May he was contacted by Speight by telephone and asked to come to Parliament. A car was sent for him and he was brought to Parliament. In Parliament, Speight asked him if he would take the position as President, and he agreed because he said – “The anger of people that were there needed someone to lead them to control them so I volunteered.” He said he took the oath on the Bible and said that the others also took oath before him. He went back to Bau on the 21st of May 2000. In his second interview he said that because of the volatile situation that existed, he thought that someone with chiefly authority should control the situation.
The 2nd accused Ratu Rakuita Vakalalabure said that on the 19th of May 2000 he was an Opposition backbencher when Parliament was taken over by Speight. He said that he rang the Military Camp to find out what was happening but Colonel Seruvakula had no idea. The Opposition members of Parliament then met in the Opposition office. He said they were not free to move about. They later met with Speight and Speight told them he was concerned about issues relating to indigenous Fijians. He remained silent on other questions about other meetings, as of course was his right. All suspects have the right to remain silent when questioned by the police, and no adverse inference can be drawn from such silence.
He did agree that Speight then made appointments to a new government and issued some decrees. He said he swore an oath to take the post of Attorney-General and Minister of Justice, and said that he agreed to be sworn in because he believed that Speight “had effective control of the country.” He said he had no knowledge of the takeover and did not take anyone hostage. He said that he tried to resolve the situation through negotiation and dialogue.
The 3rd accused Ratu Viliame Volavola said that he was a Lieutenant-Colonel in the Military Forces and was a member of the Fijian Association Party and an M.P. in the Chaudhary Government on 19th May 2000. He said that Ratu Cokanauto agreed to support the “cause” and that Speight announced at the first meeting that all the Fijian Association members were free to go home. He said that he agreed to be sworn in as Minister for Urban Development and that he went home at 4pm on the 20th of May. He returned on the 21st of May and stayed until the 26th of May when he went home. He returned on the 28th of May and finally left Parliament on the 1st of June 2000. He said he agreed to be sworn in because “the people of Fiji would accept the decision because I was a member of Parliament.” He said he knew that the takeover was unlawful and that he was sacrificing his own integrity.
The 4th accused is Mr. Isireli Leweniqila. He was also a member of Parliament on the 19th of May 2000 and said that immediately after the takeover George Speight summoned all Fijian opposition and the Generals and told them he wanted them to form a new government. He said he accepted the appointment of Minister for Tourism and Transport and agreed that he swore an oath to take this post. He said he knew that it was unlawful to support an illegal government.
The 5th accused Mr. Peceli Rinakama also said that he was a member of Parliament on 19th May 2000. He said that he and others met with George Speight at 5.30pm and that Speight told them he wanted to form a Taukei Civilian Government with himself as Prime Minister. He said the swearing-in would be done on the 20th of May. He agreed to be sworn in after consulting with the Qaranivalu and that during the ceremony, he was supported by the Qaranivalu and the Taukei Tamavua. He spent the night in the conference room with Ratu Jope Seniloli, and the Qaranivalu. On the 21st he and the Qaranivalu dropped Ratu Jope Seniloli to Bau. He said he was easily moving from place to place in his vehicle DM430 and was also acting as a peace negotiator. He returned to Parliament on the 21st for a church service and to attend another meeting with George Speight at 5pm.
The 6th accused, Mr. Viliame Savu was interviewed on the 29th of March 2001. He said he was not a member of Parliament in May 2000, and that he supported the overthrow of the Chaudhary government. He helped to organise a march in Suva on the 19th of May with other members of the Nationalist Party, and that he entered the Parliament complex on the 19th of May to support the coup. He said that he accepted appointment to the government formed by Speight and took oath before the 1st accused to take the position of Minister for Works. He said that he signed the oath because he thought that the Chaudhary Government had been overthrown. Thereafter he attended meetings with politicians about health and safety matters.
You may think that the contents of each interview are highly relevant to the matters in dispute in this trial, and in particular to the question of whether the 2nd, 3rd, 4th, and 5th accused were compelled to take an oath or engagement, and of whether they intentionally took the oaths.
I now turn to the video footage you have viewed. The contents of the videos are not in dispute and you may give the footage whatever weight you wish to. However you may think, and this is a matter for you that the footage is relevant not only to the manner of the ceremony of the 20th of May but also to the question of whether the accused persons were acting under compulsion or not.
The footage of the 2nd Press Conference of the 19th of May 2000 shows George Speight, Timoci Silatolu and Ratu Vakalalabure, the 2nd accused giving a press conference. At the conference Speight announced that he had assumed control over Fiji, that “we have appointed” Silatolu as Prime Minister, and the 2nd accused as the Minister for Home Affairs. He said “we have appointed Ratu Silatolu, to carry out the duties of Interim Prime Minister, and in due course, Ratu Silatolu will appoint his Interim Cabinet, with portfolios to be announced accordingly and we expect to make those announcements at 4pm this afternoon.”
The footage is also relevant to the question of the 2nd accused’s state of mind on the 20th of May. On the 19th of May he is shown to have made a speech in Fijian about the replacing of the government on the grounds of racial dissatisfaction. He is recorded as having said:
“I am indeed pleased with the change of Government this morning. As I have been appointed the new Minister for Home Affairs, it is now my role to ensure that there is stability in our nation and I would urge you all to co-operate with us in this regard.”
This second aspect is of course evidence only against the 2nd accused, and is relevant to his claim that he was compelled by Speight and others to take part in the illegal government.
The second footage (called Part A) and the third (Part B) shows the swearing-in, or the taking of oaths by the 1st accused Ratu Jope Seniloli, the 2nd accused, the 3rd accused, the 4th, the 5th and 6th accused. In relation to the 5th accused, you cannot hear all of the oath he took because the journalist’s voice over has been removed. However the original signed oaths have all been exhibited and the contents are not in dispute. The oaths read by each accused except the 1st accused were similar. They read:
“I, A.B., being appointed Minister for C.D. do swear that I will do the best of my judgement, at all times when so required, freely give my counsel and advice to the Interim President (or any other person for the time being lawfully performing the functions of that office) for the good management of the public affairs of the State, and I do further swear that I will not on any account, at any time whatsoever, disclose the counsel advice, opinion or vote of any particular Minister and that I will not, except with the authority of the Cabinet and to such extent as may be required for the good management of the affairs of the State, directly or indirectly reveal the business or proceedings of the Cabinet and that in all things I will be a true and faithful Minister for C.D. So help me God!”
In relation to the 1st accused Ratu Jope Seniloli, the oath reads:
“I, Jope Naucabalavu Seniloli, do swear that I will well and truly serve the Interim Government of Fiji in the Office of the Interim President of the Republic of Fiji. So help me God.”
The footage shows the swearing of the oaths, the attitude of each accused and towards the end the people present in the room. The footage is relevant to the question of whether the oaths taken intentionally, whether they purported or appeared to bind each accused to commit treason, and whether, in relation to all except the 1st and 6th accused, there was force, duress or compulsion on each to take the oaths.
Lastly, you saw the footage of a press release of Ratu Sir Kamisese Mara’s speech to the nation of the 20th of May 2000. The exact time of the address is not clear although Mr. Browne said that it was sometime in the afternoon of the 20th of May. In that address the late President spoke to the people of Fiji as the Head of State, saying that as the executive head of State he had declared a State of Emergency and that the police, army, public service and judiciary were all supporting him. The content of this address is not in dispute. Nor is it in dispute that Ratu Mara was in fact the Head of State on the 19th and 20th of May and that in fact, the formation of another government by George Speight was not part of Ratu Mara’s attempts to restore law and order.
As a matter of law (and it is not in dispute) the Speight coup was unlawful, and the Taukei Civilian Government was illegal because the President remained in office and was exercising authority.
The defence cases
At the end of the prosecution case, you heard me explain several options to the accused persons. They could have remained silent, or given sworn evidence or given unsworn evidence. In fact they had the right not to say anything at all, because the burden of proving guilt is on the prosecution. They chose to make unsworn statements, and you must carefully consider what each said remembering of course that they were not asked any questions about their statements.
The 1st accused Ratu Jope Seniloli said that he did not believe George Speight when he said he would takeover Parliament. He said he was concerned about the civil disorder in Suva and agreed to become involved to avoid bloodshed and tension, as a Chief. He said he never intended to commit treason and that he did not take his own oath seriously as his intention was to reinstate the elected government. He said his belief that the government would be reinstated was a mistaken one because he was not respected and obeyed.
The 2nd accused Ratu Rakuita Vakalalabure said that he was frightened by George Speight and his men. He said that they were heavily armed, and as a soldier he realised that they were dangerous. Some shots were fired and pistols pointed at Parliamentarians. He said that on 20th May, he was taken to a meeting and told of his portfolio. He felt he could not disagree because of the hostages and the armed men. He felt the entire swearing-in was organised by Speight and Josefa Nata for the media. He said he initially refused to take part but Speight patted him on the shoulder and urged him to proceed. He agreed because it was only a show and because he felt compelled. He said no one could have gone to a government department to start running the affairs. He then left Parliament and said that later the Muanikau Accord was signed between the Commander of the Military Forces and Speight. He said he had nothing to do with the coup and that Mrs. Koroi’s evidence was exaggerated.
The 3rd accused, in his unsworn statement said he had been a soldier since 1967 and became a Lieutenant-Colonel in 1987. He has served in missions abroad and was demobilised in March 2001. He agreed to his police statement tendered by SP Waisea Tabakau and said he had not supported the coup. He said he was a hostage and that he felt the situation in Parliament was very tense. He said that Ratu Cokanauto told Speight at the first meeting with him, that he supported the cause. The 3rd accused then said he had no alternative but to support Ratu Cokanauto’s statement. He was concerned about his family members and was not allowed to leave Parliament on the 19th of May. On the 20th of May he said that he was “instructed strongly” by Silatolu to prepare for the swearing-in and he had not been consulted. He said Ratu Cokanauto and Mr. Leone Tuisowaqa left without offering their colleagues a lift. He said he had no intention of becoming a Minister in the Speight government and only agreed to calm down the crowd. Also he felt the oath was meaningless as no ministerial responsibilities could be carried out. He said the ceremony was a sham ceremony and that armed guards were visible and threatening. He stayed on in Parliament to help to calm the situation, and left on the 29th of May.
The 4th accused, Mr. Leweniqila said in his unsworn statement, that when George Speight took over Parliament, he was afraid of the men with guns. He said that Dr. Kuruisiqila, Mr. Chaudhary and Dr. Baba resisted and were manhandled. The 4th accused said he was taken under guard to attend one meeting with Speight. He said Speight was nervous, disorganised and suspicious. He said if they disagreed with anything the hostages would be shot. Some of the armed men told him that if he acted like a traitor he would be shot too. He believed them. He could not sleep all night, and on the morning of the 20th of May, he was taken under armed escort to see Speight. There, he was told by Speight to take part in a swearing-in ceremony to appease the crowds and to generate publicity. They told him that there would be no real appointments unless the Council of Chiefs was first consulted. A list was produced and he said his name was down for Minister for Civil Aviation and Tourism which appeared to be a joke. He said Ratu Cokanauto told Speight he would be back and he left the complex. He said the ceremony was in total disarray and only intended for the camera. He was not appointed by anyone and he cannot recall the words of the oath. He didn’t think it was a genuine oath and was afraid of the gunmen. He left Parliament but returned after the ransacking of Fiji TV, to try to negotiate a peaceful settlement, and to help the hostage, whom he said would have been killed if he had not been in Parliament. He said that his actions should be judged in the context of the events of the 19th and 20th of May.
The 5th accused, Mr. Peceli Rinakama said in his unsworn statement that he was scared by the conduct of George Speight and his group on the 19th of May. He said that he and Ratu Cokanauto and other Fijian Association members went to see Speight and that Speight declared his intention of forming a Taukei Civilian Government, and that they the Parliamentarians should be ready to be sworn in the next day. He said that the armed men were whispering about assaulting Mr. Chaudhary and told the 5th accused, Mr. Rinakama that they would be used as human shields. At a subsequent meeting he was told that he would be made Minister for Youth and Sports. He was told to go home, shower and change his clothes, then return to swear the oaths. He said he did not leave because he had no transport.
He said that the swearing-in ceremony was a joke, casually arranged and that when he took the oath, he was not even sure he took it on the Bible. He said the oath ceremony was a publicity stunt, and that he never intended to take the oath.
The 6th accused in his unsworn statement said he believed in indigenous rights but within the law. His party helped to organise a march in Suva on the 19th of May 2000, and entered Parliament on the 20th of May because he heard an interim government was being formed. He said he was curious. When he arrived he found that he was to be Minister for Works and Energy but he did not know who appointed him. He thought that the Chaudhary Government had been overthrown and that Speight was in effective control. He did not think he was binding himself to commit treason and said he was scared and uncomfortable during the ceremony. He said he did not support the coup.
That was the defence case. It was suggested by one defence counsel that the prosecution could have called rebuttal evidence to rebut the defence case but they did not do so. This is not a correct statement of law and procedure. The prosecution has very limited rights to call evidence after the defence case and those rights did not arise in this case.
I will now summarise the case in respect of each accused. In their addresses, counsel have all made full and detailed submissions to you about the alleged role of each accused. I will not repeat everything that was said. That is not the role of a summing up. I will summarise each accused’s case briefly but you must also give careful consideration to all that has been said to you in the closing addresses of counsel for the prosecution and for each accused.
1st Accused
The 1st accused says that firstly he did not take the oath seriously and secondly that he took it because he thought it was necessary to save lives and prevent bloodshed. He also disputes that the appearance of the oath was to bind him to commit acts of treason. The defence case is that as a chief he considered it necessary to step into the breach to prevent bloodshed, and that he has been consistent in saying this especially in his police statements.
As I have told you, you must ask yourselves the following questions in relation to Ratu Jope Seniloli:
The prosecution must satisfy you beyond reasonable doubt that the 1st accused did not act under necessity. The prosecution says in relation to the 1st accused, that he cannot rely on the defence, that he had other choices available to help the country, such as helping Ratu Mara to preserve law and order, or persuading Speight to release the hostages. The prosecution says that the 1st accused acted out of self-interest and not to save people from bloodshed and that the defence is shown beyond reasonable doubt to have no validity.
Remember that it is not in dispute that Fiji still had a President on the 20th of May, Ratu Mara, who was not a hostage and who was exercising executive control over the country. By taking the oath, was the 1st accused appearing to promise to perform the functions of the President, and if he had gone on to perform those functions, would he have been committing treason? If you are satisfied of this beyond reasonable doubt and that the accused was not acting under necessity, then you must find the 1st accused guilty as charged. If you have any reasonable doubt about his guilt then you should find him not guilty. The question for you is whether the oath he took appeared or purported to bind him to unlawfully replace the lawful President of the day and that he took it not as a result of any necessity, but of his own choice and will.
The 2nd Accused
The 2nd accused does not deny taking the engagement in the nature of the oath, but he says firstly, that the oath was not a serious one and therefore he had no intention of taking the post of Attorney-General in the Speight Government, and secondly that he was compelled to take the oath.
How serious the oath-taking ceremony was is a matter of fact for you. You have seen the video footage of the ceremony, and have read the written oaths. You will also have noted that in his caution statement the 2nd accused said nothing about the ceremony being a pantomime or a show for the cameras. Nor did he say he was forced or compelled to take the oath. You have heard his unsworn statement. It is for you to decide whether the 2nd accused took the engagement of Attorney-General in the nature of an oath, or whether he was only pretending to do so for the cameras. You may also consider the 2nd accused’s speech on the 19th of May, when he sat beside Speight and said that he was pleased with the change in government and asked everyone to co-operate with him as Minister for Home Affairs to bring stability in the nation. Mr. Singh suggested to you that he must have made this speech under compulsion by George Speight, but of course the 2nd accused did not mention this in his sworn statement. He also raises the defence of compulsion.
The questions for you are:
In considering these questions you are entitled to take into account the arms in Parliament, the demeanour of the 2nd accused as you saw it on video, the contents of his caution interview, and his unsworn statement in Court. You may also take into account the evidence of several Parliamentarians such as Mr. Leo Smith, Mr. Tuisowaqa and Ratu Cokanauto who managed to avoid taking part in the ceremony either by outright refusal or by deception. Could the 2nd accused have done the same? Could he have left the Complex pretending that he would return? If you consider that he had an opportunity or opportunities to remove himself from Parliament thus avoiding the swearing-in, then the defence of duress is not available to him. It is for the 2nd accused to prove to you that it is more likely than not that he was compelled to take the oath.
In relation to the words “purporting to bind him to commit treason” I must direct you again that the formation of an illegal government to replace a lawfully elected one, held by force in custody is treason. So that if the oath the 2nd accused swore appears or purports to bind him to act as Attorney-General to illegally replace the lawful Attorney-General in the government held by arms in custody, then the oath would appear to bind the accused to commit treason, whether or not he intended to commit treason. These are matters for you.
The 3rd Accused
The 3rd accused Ratu Volavola raises similar issues to the 2nd accused. Again you must ask yourselves about whether he intentionally took the engagement, and whether he did so of his own free will. The question is whether he intended to take the oath, and whether the oath appeared on the face of it, to bind him to replace the lawful Minister who was held by arms in custody.
As for his defence that he was compelled, you must ask yourselves whether he had been threatened by death, serious injury, whether he was compelled by those threats to comply with the demands of those making the threats, and whether a reasonable person in his position would have so succumbed. Consider the video footage, the oath itself, the caution interview, the unsworn statement, the circumstances in Parliament, and any opportunities he had to remove himself from the threat. You may think, that the evidence of Ratu Cokanauto that Speight gave the 3rd accused permission to leave the complex to prepare for the swearing-in, would have provided him with such opportunity to leave. Defence counsel submitted that there was no transport for him to leave. These are matters for you to consider.
The 4th Accused
The 4th accused’s position is also similar. He too raises compulsion and lack of intention to take an oath. He also says that the ceremony was a sham, that there was no proper appointment, that only one oath was taken and not two, that the ceremony was disorganised and in disarray. You must ask yourselves whether the ceremony you saw on video suggests that the ceremony was just a pantomime for the media or whether, as the prosecution says, it was a serious oath-taking ceremony. You must ask yourselves whether the oath he took appeared to bind him to replace a lawfully appointed and elected Minister who had been unlawfully detained, and whether therefore he appeared to be promising to commit treason. As I said earlier, it does not matter whether the oath was in fact binding in law, nor does it matter that the 4th accused never intended to commit treason. The question is what the oath appeared to reasonable people, to be binding the accused to do.
As for compulsion, you must ask the same questions I have already outlined. Was he made the subject of threats of death, or serious injury? Did he succumb to those threats? Could he have escaped? What would a reasonable person in his position have done? And has he proven to you, that he was probably or more likely than not, compelled to take the oath?
The 5th Accused
The 5th accused Mr. Peceli Rinakama’s position is that the entire ceremony was a sham, and that he had no intention to take a real oath. He also says that the oath he took did not purport to bind him to acts of treason, and that in any event he acted under compulsion throughout the oath-taking ceremony.
You must ask yourselves if you are satisfied beyond reasonable doubt that this was a serious oath-taking ceremony, and that the oath he took purported to bind him to commit treason. As with the other accused, whether he intended to take the oath, and whether it purported or appeared to bind him to replace the removed and hostage Chaudhary Government, is a matter for you after you have considered the 5th accused’s caution statements, the video footage, the oath itself, the evidence of the prosecution witnesses and the unsworn statement of Mr. Rinakama in court.
In relation to duress or compulsion, you must consider whether the accused has shown you that it is more probable than not that he took the oath under compulsion or by force. You may wish to consider the 5th accused’s statement to the police and his unsworn evidence as well as all the evidence in this case. Remember to ask yourselves, was there a threat of death or serious injury made to him or others throughout the whole period of the oath-taking? Was the 5th accused compelled as a result of those threats, to take the oath? Would a reasonable person in his shoes have succumbed to these threats? Could he have removed himself from the complex thus avoiding committing the offence? These are the questions you need to ask yourselves in relation to the 5th accused.
The 6th Accused
Mr. Savu voluntarily came to Parliament, he said out of curiosity. He was not a Parliamentarian and not a hostage. He said he did not take the oath with any intention to commit treason. He thought Speight was in effective control. He does not suggest that he was compelled to take the oath and in his unsworn statement said he agreed to take the position of Minister for Works and Energy because he thought that the Chaudhary Government was overthrown and that Speight was in control of the country.
However, as I have said, his motive is irrelevant to the ingredients of the offence and ignorance of the law is no defence to the charge. Are you satisfied beyond reasonable doubt that Mr. Savu intended to take the engagement in the nature of the oath as Minister for Works and Energy? Are you satisfied beyond reasonable doubt that the oath he took appeared to bind him to replace a lawfully elected Minister then held in custody? You may think, that on his unsworn evidence and his caution statement, he appears to agree that he took the oath intentionally and that the oath purported to bind him to act as Minister for Works and Energy in the Speight government. However, you must take into account all the evidence in this case, the video footage, the accused’s statements in court and to the police and of course the words of the oath itself to decide if the oath he took purported to bind him to commit treason.
Conclusion
I have tried to summarise the case in respect of each accused. You must consider whether each accused person, separately is guilty or not guilty of the offences charged. If you have any reasonable doubt about the guilt of each, you must give your opinions that he is not guilty. However if you are satisfied beyond reasonable doubt that the 2nd, 3rd, 4th and 5th accused intentionally took an engagement in the nature of an oath, and that the oath appeared to you to bind each to commit treason, that is to unlawfully replace the President or the elected government then in custody, and that they were probably not under compulsion during the ceremony, then you must find each guilty as charged. In respect of the 1st accused, you must ask yourselves, if you are satisfied beyond reasonable doubt that he intentionally took an engagement in the nature of an oath, purporting to bind him to replace the President of the country and that he did not act under necessity. In respect of the 6th accused you must ask yourselves if you are satisfied beyond reasonable doubt that he intentionally took an oath purporting to bind him to an act of treason, that is to unlawfully replace an elected government Minister then held in custody.
Your possible opinions on each count are Guilty or Not Guilty.
Nazhat Shameem
JUDGE
At Suva
5th August 2004
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