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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 009/2008
THE STATE
Applicant
V
Respondents
Mr D. Toganivalu for the State
Mr A. Naco for 1st Accused
Mr. I.Khan for for 2nd, 3rd, 5th – 8th Accused
Mr. M. Raza for 4th Accused
SUMMING UP
Ladies and Gentlemen assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether each accused is guilty or not guilty of the charge.
2. Our functions in this trial have been quite different throughout this trial. The law has been, and remains, my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.
3. The facts of this case are your responsibility. All of the Counsel have made very strong speeches to you and you will wish to take into account the arguments advanced in those speeches you have heard but you are not bound to accept them. What counsel say in their closing addresses is not evidence. You may accept what they say or you may reject what they say: it is entirely a matter for you.
I must however make a couple of comments about those speeches. Both Mr Toganivalu and Mr Raza spoke to you of the penalty for this offence on conviction, Mr Raza in rather emotive terms. Neither Counsel had the right to do that: sentencing is no concern of yours, nor should it be a factor influencing your deliberations.
Mr Raza placed a great deal of stress on the fact that 2 witnesses were not called who he expected should have been and also that mobile phone records were not produced. Ladies and gentlemen, you are to judge this case on the evidence called before you and you are not to speculate on the evidence that may have been available, and what potential witnesses may have said. Having said that however, if is open to Mr Raza and you if you agree with him to find as he says that the "chain is not complete". The whole issue is that you must find the case proven or not proven on the evidence before you. Similarly Mr Raza was very critical of the State for not producing mobile phone records to show that Mills was calling Kuli. But you might think that the boot can be on the other foot. It was always open to the Defence to produce that evidence in the Defence case to show that Kuli was pestering Mills, as they so strongly contend.
4. If in the course of my review of the evidence I appear to express any views concerning facts, or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.
5. In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.
6. You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences that is to come to common sense conclusions based on the evidence which you accept, but as I said earlier, you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.
7. In assessing the evidence, you are at liberty to accept the whole of a witness evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable?
8. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.
9. I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. Now this is especially relevant in this trial because it concerns allegations of actions to be taken against the Prime Minister of this country. As such, political considerations come into play. No matter where you sit on the political fence and no matter what you think of the present government, you are not to let that influence your decision. You must put your political views to one side.
Onus and burden of proof
10. In this case, as in every case in Fiji, the prosecution must prove that each defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant’s guilt is on the prosecution.
11. How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".
12. Each of the eight accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the case of each accused separately and come to a separate considered decision about each. Because they are jointly charged does not mean that they must all be guilty or all not guilty. When you come back into Court, the clerks will ask you for your opinions on the count charged. You will each in turn give your separate opinions for each accused, starting with the first and ending with the eighth. There are 5 of you so I will be hearing 40 separate opinions. The Court is not bound by your opinions but will give them the greatest weight in coming to its judgment.
13. I will now turn to the law with regards to this trial. The information (which you have a copy of) charges that between the 1st day of August 2007 and the 3rd November 2007, each and every one of these accused conspired together and with others in Suva and elsewhere in Fiji to kill Commodore Voreqe Bainimarama.
14. Just as it is a criminal offence to murder anybody, obviously; so it is a criminal offence for two or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a conspiracy and that is the offence charged here.
15. Before you can find any of these accused guilty of this offence, you must be sure:
(i). there was in fact an agreement between two or more persons to commit murder; and
(ii). he accused person whose case you are considering was a party to that agreement, in the sense that:
16. You may think that it is only in a rare case that you would receive direct evidence of a criminal conspiracy (for example, an eyewitness or documentary evidence.) When people make arrangements to commit crimes you would expect them to do so in private. You would not expect them to agree to commit crime in front of others or to put their agreement in writing . But people may act together to bring about a particular result in such a way as to leave no doubt that they are carrying out an earlier agreement.
17. Accordingly, in deciding whether there was a criminal conspiracy, and if so whether the accused whose case you are considering was a party to it, look at all the evidence as to what occurred during the relevant period including the behaviour of each of the accused. If having done that you are sure that there was a conspiracy and he was a party to it, you must convict. If you are not sure, you must acquit.
18. When criminal conspiracies are formed it may well happen that one or more of the conspirators is more deeply involved in and has a greater knowledge of the overall plan than the others. Also, a person may agree to join in the conspiracy after it has been formed or he may drop out of it before the crime has been fully carried out. Providing you are sure in the case of each and every accused that he did at some stage agree with one of the others that the crime of murder shoud be committed and at that time intended that it should be carried out, it does not matter precisely where his involvement appears on the scale of seriousness or precisely when he became involved, he is guilty as charged.
19. So the crime is completely committed, if it is committed at all, the moment two or more persons have agreed that they will murder somebody, and fully intending to do that. They may later repent or stop, or they may have no opportunity to put the plan into play, or they may be prevented from carrying out the plan, or it may fail; nevertheless the crime is complete the moment that the plan was agreed upon. A conspirator may say he is not going to take part, but he would still be in the conspiracy if he has agreed with the others that the plan be carried out. And if anybody comes into the plan later then he is said to be conspiring as soon as he agrees to the same plan with the intention of carrying it out. Note that I said two or more persons. If you find for example that one of the accused was not in the conspiracy to murder, then that does not mean that the whole conspiracy charge fails. You will consider each accused in turn and if you consider that he conspired with at least one other then you will find him guilty as charged.
20. As I stated earlier, it is most unlikely that you are going to find a piece of paper drawing up an agreement to murder the Prime Minister, and so the Prosecution is relying on circumstantial evidence to prove guilt. That simply means that they are relying upon evidence of various circumstances relating to the crime and the accused persons which they say when taken together will lead to the sure conclusion that it was these accused who made the agreement.
21. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Whether you can rely on circumstantial evidence involves you in making inferences. An inference is a conclusion drawn from facts that you accept as reliably established; it is not a guess. In this case, the ultimate question is whether you are satisfied so that you are sure that from the meetings held between various accused persons and the things said at those meetings, that these accused had come to an agreement to carry out the assassinations referred to in the Counts.
22. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them, and neither the prosecution, the defence, nor you should do that.
Discussion of the evidence
I now turn to look at the evidence in this case. I will cover the evidence of the first prosecution witness in some detail because his evidence is the thrust of the prosecution case.
23. The first witness you heard from was Corporal Kuli. As Mr. Toganivalu told you in his opening address he was the main witness for the prosecution because he was the one who stumbled on to the conspiracy and who attended meetings of what he says were the conspirators. He told you he works with Military Intelligence and said his job was to infiltrate and gather information and submit reports to his superior Sergeant Waqa.
24. He told you that one morning in September 2007 he went to see the first accused Ratu Inoke Takiveikata initially saying he went because the country was unsettled and he was a chief with a lot of supporters. He also mentioned a newspaper statement that the Ratu had had published in the daily papers: a statement entitled "National Reconciliation". Corporal Kuli told us how he asked the Ratu about the statement and what he thought of the government. He says that the Ratu told him that morning that the government had to be removed, the Commander killed, and the Military Council removed. Corporal Kuli then expressed to the Ratu a willingness to take part to which the Ratu invited him to a meeting at 6.30 that evening. Corporal Kuli said he told him he wanted to take part because he wanted to know what the plans were.
25. He then told us of going back to the first accused house at 6.30pm that evening and being taken in a vehicle to a house in Muanikau where he was told it was Ballu Khan’s house. When he got there he said he saw Mills the third accused, Waqatairewa the sixth accused and Namulo the eighth accused. He sa t down with the first accused and Ballu Khan and they talked about their plan and his plan and it was suggested that it was better if he (Kuli) joined their group.
26. He described a third meeting a couple of days later and again at the Toorak home of the first accused. He said that he was called for a meeting by Mills and that when he got to the meeting, present there were Ballu Khan, the first accused, the fourth accused whom he calls Siva and Mills. He said they discussed the plan to kill the Commander and to "take" the Military Council because they were running the country. Kuli was then told that another meeting would be held in Sabeto, Nadi and that he was to bring his "boys". He told us he had no "boys" but told them he had 8 just to show that he was really supporting the group. He said that at the end of the meeting it was said that the timing of this "takeover" was to be 3am on a Sunday morning.
27. The next day Mills called him when he (Kuli) was in town and Mills asked him to meet at Mills sister’s house in Nailuva. He was picked up in a vehicle driven by the second accused. He met Mills as arranged but the witness could remember nothing of the conversation apart from encouraging each other in "their plan".
28. Two days later Mills called him to arrange the meeting in Sabeto to which he was to bring his "boys". He met Mills that evening when Mills gave him $170 to hire the van. He then arranged for three members of the Territorial Forces to assist him. They were Toa, Lasagavibau, and Kaidreli (who were PW10, PW6 and PW9 respectively). He told them about what information he had to date and they agreed to help him. He told them that there was a plan to kill the Commander and he could not gather all the information alone and also that he needed to show the first accused that he (Kuli) had supporters. Sabeto had been chosen as a venue because the Sanyo Cup match between Naitasiri and Nadi was being held at Nadi and so a lot of people would be there, giving them "cover". He said that this was the first accused’s idea. After getting the $170 from Mills, Kuli called a van driver that he knew and arranged to be taken to Nadi the next morning.
29. On a Saturday morning they met at RB Centre Point and set off for Nadi. On the way Mills called him and PW1 told him that they were on their way. In the van were Luke Toa (PW10), Kaidreli (PW9), Lasagavibau (PW6) and himself and the driver. Mills called again when they got to Nadi and told them to go to Sabeto. They arrived at Sabeto and waited at the junction. Then the 4th accused called, telling them to get out of the vehicle and walk to his farm. They arrived at the house and before sitting down they were subjected to a body search by Mills and the second accused. They greeted each other and then the 4th accused (Siva) brought his laptop. He used the laptop to outline the plan, that is to neutralize the army and turn the country into a Police state. The fourth accused continued by saying that if there was any trouble they would call in the Australian or New Zealand army. After the meeting they had lunch and then went to watch the game at Prince Charles Park, with tickets paid for by Ballu Khan.
30. He went on to describe a further meeting at the Fiji Teachers Association (FTA) Hall. He told us they met there at 8pm on the invitation by phone of the 4th accused. At that meeting the 4th accused (Siva) explained the type of weapons that were going to be used. Kuli then said he gave the meeting some ideas about weapons. Mills was also at that meeting. After the meeting Siva gave him $200 for transportation.
31. The next day Mills called him (Kuli) and arranged to meet him at the foreshore by the Civic Centre. When he got there, he saw Mills and Vosavere. Mills said that Vosavere will also take part. Vosavere (the 7th accused) then told Kuli that he had the mentality of an officer and can lay out plans. It was confirmed at this meeting that Kuli and his "boys" would undergo training at Waidina.
32. The week after that Kuli went to a meeting at the Naitasiri Provincial Building (NPB) at 8pm one evening. He said Mills lived there and when he got there he was taken to the top of the building and told that he and his boys could do training there, at the top. He was told that training would be done there first before going up to Waidina.
33. The next day they went to Waidina to see the training site. They went in a vehicle driven by Siva (the 4th accused), with Mills and another man. When they got there, Siva dropped them off to look for a site that was far from the village so nobody could hear the sound of gunfire. He said they were there for about 4 hours because it was far into the forest. They found a place and it was "right with Mills". They then returned to the village to be picked up by Siva again.
34. Two days later his group (Kuli’s group) went to Ballu Khan’s house to hear Mua (the 5th accused) to speak to them on some parts on how to overtake the Government. When he got there, Kuli saw Mua (5th accused) Ballu Khan, Namulo (the 8th accused), Mills (the 3rd accused) and Ballu Khan’s gardener. Colonel Mua spoke to them and extorted them all to carry out the task from the first to last until a new government was in place. After talking to them Mua then said he would not take part.
35. After one day he was called again and told that there was to be a meeting at NPB. Mills called him. He said it was to have a "dry run" at Wailase which he understood to be the first accused’s property. No weapons were to be used but they were to make a complex (that is the 3FIR complex) by using tarpaulin. Siva drove them to Wailase with Mills, and 3 of the Kuli’s "boys". On arrival there they unloaded tarpaulin, rope and chainsaw (the rope and chainsaw being just a cover so people would think they were workmen for the first accused). They cut the tarpaulin into three, then cut some branches as pegs for the tarpaulin so that they could design a 3FIR complex. Mills was dictating how they were to train to take over the complex using branches as make believe guns, and running around for about 2 hours. Mills told them that when the 3FIR complex was taken, the Army would be weakened.
36. After training they went to Ballu Khan’s house where he was preparing a BBQ. On arrival there Kuli said they were very tired and only stayed for about 30 minutes. He saw Mills there.
37. PW1 then went on to tell us how he would brief his superior, Major Narawa after every meeting. He told the Major how it had been arranged that they (including the Major would go to the Sofitel Hotel in Denarau to discuss the plan with the first accused and Ballu Khan. He and the Major went to Nadi in October 2007 because, Kuli said, they wanted to confirm that Major Narawa was taking part. Siva (the 4th accused) gave him (Kuli) $300 for transport to Nadi however, he (Kuli), Major Narawa and Sgt. Waqa (another superior officer and his "handler") went in a vehicle belonging to the Intelligence Unit. When they arrived they went to the Tanoa Hotel while the 1st accused, the second, third and fourth accused with Ballu Khan went to the Sofitel.
38. When Kuli’s group arrived at the Sofitel, he says Feoko, Mills and Siva were in one room. Ballu Khan had another room and a third room was used for a meeting between Major Narawa and the first accused. When they arrived at the Sofitel, Kuli went to the room with the three accused, Feoko, Mills and Siva while Major Narawa went to the first accused to talk to him. He was with the first accused for about 30 minutes. After the meeting they all went back to the Tanoa Hotel.
39. Kuli told us that Ballu Khan was upset that he too had not spoken to Major Narawa. So Kuli then facilitated a meeting between the two of them at Nabukavesi. Kuli never saw any of the accused after that.
40. In cross examination Mr Raza suggested to Mr Kuli that his visit to the first accused was in bad faith and that he was using the Reconciliation Statement as an excuse. The witness denied that, but it is a matter for you. The defence maintained that Corporal Kuli’s main aim was to locate missing weapons and not to gather information on any plans that might exist, and for him to say that he was, means that he was "drifting from his main purpose" as Mr Raza put it. Mr Raza went further than that by suggesting to Kuli that without weapons the plan was doomed to fail and Kuli did nothing to locate the weapons.
41. You heard a lot of questions of Kuli about weapons, missing weapons, whether there was any attempts made to locate them: evidence as to who suggested what weapons were to be used, Siva or Kuli etc. I ask you to bear in mind what I told you earlier about the law, it is irrelevant to a charge of conspiracy that the plan cannot be carried out – it is the agreement that is the nub. If there are no weapons at the end of the day – then the plan will fail; but that does not defeat the conspiracy.
42. Mr Raza also put it to Kuli that it was he (Kuli) who was pestering Mills and Siva to meet up; Kuli denied that but again that is a matter for you to decide, ladies and gentlemen.
43. The defence maintain that there was no training done at Wailase – that Kuli was making that up and road works were being done there – that is why Mills and Siva were up there.
44. You will recall that Mr Naco, counsel for the first accused suggested to Kuli that there was no initial meeting with the first accused as stated. That he just ran into him in front of his house and that it was he Kuli who then suggested a plan for destabilising the government to which the first accused said he did not want any part of it. This was denied by Kuli, but it is another fact for you to decide where the truth lies. Mr. Naco suggested to Kuli that the Military were known in 2007 to be unhappy with the first accused and that as a result Kuli as a military officer was going to great ends to try and implicate the first accused in Kuli’s own assassination plan. Kuli denied that.
45. Mr Khan also suggested to Kuli that he (Kuli) had first suggested the scheme to assassinate the Commander to the first accused and that the first accused told him to stop right there and discuss it no further. Again this was denied by Kuli, who said that the first accused told him to return that evening when they would talk somewhere else.
46. Well ladies and gentlemen, that was the first accused and I make no apologies for dealing with him in great detail because it is accepted both by the State and Defence that he was the main witness. You will of course not judge this case on the basis of his evidence alone but you will consider all of the evidence that has been called. I will remind you of the rest of the prosecution’s case but not in detail.
47. The second witness was Major Narawa. He was the Chief Intelligence Officer for the RFMF. He was PW 1’s superior and told us that in September PW1 came to him and told him that he had information of a plot to assassinate the Prime Minister. He then received reports of the development of this plot and he was briefed after every meeting and the Major said that he reduced all that intelligence into a power point presentation (which is our Exhibit 6)
48. The Major told us of his meeting at Denarau, The Sofitel, with the first accused. At this meeting the first accused told the Major of the plan for an interim administration, and in the words of the Major "get the Prime Minister out which meant basically to kill him". He had organized churches within the vicinity of the RFMF camp at Nabua to support the takeover – that is Methodist Churches. He said arms would be purchased from New Zealand. He had support from New Zealand, Australia, the US and the United Kingdom through their embassies in Suva, and that Australia was going to put up $1 billion to kick start the economy.
49. The Major went on to make promises to the first accused in order to show a pretence of his (the Major’s) support. He was also told at this meeting that Mua, the fifth accused was in on the plan and had briefed his men on that plan. After the meeting he spent the night at the Nadi Military camp and the next morning briefed the Prime Minister on his meeting with the first accused.
50. We heard evidence of the Major subsequently meeting up with Ballu khan on a deserted road somewhere, the meeting being at Ballu Khan’s request because he was miffed at not being included at the Sofitel. I withheld details of that meeting from you because Ballu Khan is not here to challenge anything Major Narawa might say about that conversation.
51. Major Narawa produced his power point slides (22 in all) which he says he compiled from the reports of Corporal KUli. He said he passed on the information to the commissioner and the Prime Minister.
52. The defence would suggest that Major Narawa is not an independent witness and furthermore that his power point slides are not reliable because Corporal KUli himself is not reliable.
53. Both M. Raza and Mr. Khan suggested to the Major that the assassination plan was his; and that the first accused when confronted with this plan wanted nothing to do with it. The Major denied this of course and it is therefore a matter for you to decide.
54. You then heard evidence from staff of the Sofitel Hotel – a receptionist who said that Ballu Khan came and took 3 rooms for which he paid cash for all. On the 25th October 2007 and evidence from the concierge supervisor who said that in the evening of 25 October 2007 Khan arrived with bodyguards and were joined by two men who had been waiting. Then another Fijian man came and asked for him.
55. You heard the evidence of Mr Haizal Shah who told us about driving a group of 5 Fijian men to Nadi one Saturday in October 2007. He picked them up at RB Centrepoint at 7am took them to Prince Charles Park and on to Sabeto where he dropped them off and saw them "going somewhere". He says that they were in Sabeto from 12 noon to 3pm. He then took them back to Prince Charles Park for the game and after that, back to Suva. You will remember that when cross-examined, there was confusion over the number of men he took; whether it was 4 or 5 men.
56. You heard from PW5 a Mr Koroi who is President of the Fiji Teachers Association (F.T.A.) He knows the 4th accused and the 4th accused called him to ask if he could use the FTA Hall for a meeting that evening. Because he was told it was a small group he allowed them to use the Members Lounge.
57. PW7 was Mr Nand Lal whose van got stuck in the mud on the road near Wailase junction in late October 2007. A green vehicle came with 6 people inside. They stopped and helped him to extract his van from the mud using a rope taken from the back of their vehicle. They were all Fijian males. They asked him where the Qaranivalu’s place was. Well it is up to you to make of what you want with that evidence.
58. I now turn to the evidence of the 4 soldiers PW6, PW8, PW9 and PW10. They were all "recruited" by Corporal Kuli and were frequently referred to as his "boys". They all (apart from PW8) told of a briefing by Kuli prior to going to Nadi one Saturday morning in October 2007, leaving from RB Centrepoint. PW6 and PW10 said they left at 7am, PW9 said 6.30am. They went first to Prince Charles Park where a big rugby match was to be played but they then went on, as arranged, to Sabeto to a place which they understood to be the farm and home of PW4. Siva did a briefing, they said, using a whiteboard and laptop telling them that the army was going to be neutralized, then disbanded. The Commodore was to be killed and PW10 added that they were told that Indians (presumably Indo-Fijians) were to be "removed" and the President changed. PW9 said the meeting took about 1 hour and PW10 said 10 minutes. They had lunch there and then rushed back to the ground to watch the match before returning to Suva.
59. Counsel for the 4th accused put to PW6 that Siva was giving a talk on the division of wealth in Fiji and how to uplift the wealth of the indigenous Fijian people which PW6 denied. Counsel for the first accused put to PW6 that the main aim to meet with this group was to trace missing weapons but they never asked about weapons in the meeting and Mr Khan, counsel for the remaining accused suggested they went there just to trap the group and that he was making up the story.
60. To PW9, counsel suggested that his evidence was so much at variance from his police statement that he had obviously discussed his evidence with others outside the court room. A lot was made of discussion between the witnesses and how they had been seen talking in Albert Park. PW9 admitted that he had been taking to others while waiting to give evidence, but they were only talking about Army matters and not the evidence to be given in the trial. It is for you to make of those claims as you will.
Mr Khan suggested to PW9 that it was Kuli who first suggested killing the Commodore, at Sabeto and not Mills and that Kuli had said "the military has changed its purpose". This was denied.
61. PW8, PW9 and PW10 told us of the meeting at the FTA Hall, where they saw Mills, Siva and Feoko (A3, A4 and A2). Siva led the meeting once more referring to taking over the army and how their group would bring the weapons. The current government had to be weakened because it was headed by Indo-Fijians; the army dissolved, and the money used to establish the army to be put to better use. PW10 said there was a discussion about the types of weapons that were to be used and Kuli’s group were asked to make suggestion about weapons.
62. Mr Raza for the 4th accused, put to PW8 that the briefing was on the economical improvement of the Indo-Fijian people, a claim not put to PW9 or PW10. Mr Naco put to PW8 that he was not at the FTA at all, and did not cross-examine PW9 on the FTA meeting. Nor did Mr Khan refer specifically to the FTA meeting. Mr Raza suggested to PW10 that their aim was to locate weapons, but they did not act on that. Instead they just led the group on.
63. PW6 spoke of the first meeting at the Naitasiri Provincial Council Building (NPC) at Nausori – held on the rooftop. PW8, PW9 and PW10 were there too and gave evidence of this meeting. They said Mills and Siva were there. PW6 said the meeting was to discuss exercises in the jungle, while PW8, PW9 and PW10 said they were given plans to take-over the 3FIR and they were told that Ballu Khan would provide the weapons. PW8, PW9 and PW10 went to a second meeting at NPC which was attended by Mills, Feoko and Siva. PW9 said that Mills confirmed the plan to kill the Commodore and take-over the army while PW8 and PW10 said that the meeting was to discuss future training
64. Mr Raza put to PW8 and pW9 that there were no briefings at all at the NPC; that Mills lives there and they merely went to visit him.
65. PW8, PW9 and PW10 told of going to Wailase for training. PW8 and PW9 mentioned pulling the stuck vehicle out of the mud before arriving at the site. They unloaded equipment (tarpaulin, caneknife, etc) and a box of food (an eski). They cut the tarpaulin into three and cut branches to make pegs to create 3 make believe buildings that they were to practice storming. Mills was directing the training. PW9 was told to go to the roadside to keep watch and the others practiced storming their buildings with branches as guns. They did this until it was dark and then they ate some food and packed up and Siva came to pick them up. They all then went to Ballu Khan’s house where he was preparing a BBQ.
66. All three defence counsel made fun of the three soldiers (PW8, PW9 and PW10) by pointing out that such an exercise using sticks and improper clothing was futile; that it would be impossible for four of them to take over the 3FIR, left alone any other sections of the Army when they would be far out numbered by many other soldiers on duty. They suggested that it would be doomed to failure.
67. Ladies and gentlemen: two matters arise out of this part of the defence case. First, you will recall that as a matter of law the impossibility of putting the plan into action is irrelevant. It is the agreement evidenced by actions, words and circumstances that is the crime here and what comes after the agreement, whether it is lack of weapons, inability to complete the task does not matter. The crime charged is a conspiracy to murder the Commodore, not to bring the 3FIR to its knees.
68. However, it is I believe the case for the defence, and it was certainly a point raised by Mr Raza, that the utter futility of the exercises and the suggested plan of action suggests that the accused were not serious about the plan to topple the army institutions, and thereby perhaps by association that they had no intention of killing Commodore Bainimarama.
69. It is another matter for you to decide on. If you think that they had all agreed to kill the Commander and that their briefings and actions all suggested that they were intending to bring that murder about, then you will find the accused guilty. If you do not think so, or you are not sure, then you will find each accused not guilty.
70. Mr Raza and Mr Khan put to the witnesses that there was no training at Wailase at all a proposition which you might think contradicts their claim that the training with sticks was childish and futile.
71. Mr. Naco suggests that there is a creek and a cliff at the site identified by the witnesses and they therefore cannot possibly have walked in-land to get to the training ground they described.
72. The next part of the prosecution case was where individual police officers gave evidence as to the taking of one caution interview with each of the 8 accused. Defence counsel suggested to the officer who interviewed the first accused that the questions were being faxed and phoned through during the interview. The officer agreed, but said that in the highly unusual circumstances that practice was acceptable.
73. All officers gave evidence that the basis of their interview was given to them by Nasir Ali by briefing and a paper with "bullet-point" allegations. Injuries were noticed on accused 2, accused 3 and accused 4. All officers were cross examined on irregularities of procedure in the taking of the interviews.
74. Ladies and gentlemen, those interviews were all produced as exhibits. Although those statements were not made on oath or subject to cross-examination, the account and explanation that the accused gave in those interviews are to be treated as normal evidence just like all the other evidence. What weight you give to it is a matter for you. You can accept some of it, all or it or none of it, and you can view it as favourable to the accused or unfavourable: it all depends on how you assess it.
75. We then heard the evidence of the ACP Nasir Ali. He said he learned of a plot on the 3rd November 2007. He told of a meeting with the Commissioner of Police, Director of Special Branch at the CP’s office when he was advised that Military intelligence had learned that there was a plot to overthrow the interim government, remove the President from office and the assassination of interim government officials. He spoke of meetings at the camp at Nabua and it was decided that Police were to take the lead role in the arrests with the assistance of the military. He met Major Narawa and saw his power point presentation. Nasir Ali was appointed as the Directing Officer. He learned of the arrest of suspects at Delainavesi Police Post at 1530 hours on 3 November 2007. He arranged for suspects to be spread out amongst all Southern Division Police Stations and he briefed his investigating officers at the Raiwaqa Police station. He had made a copy of the power point presentation which he handed to officers for their interviews. He learned that "Biko", that is our PW1 Kuli, had also been arrested in Nausori and he directed that he be released.
76. In cross-examination Nasir Ali said that as head of the Fiji Independent Commission Against Corruption (FICAC) in early 2007, he was aware of complaints of corruption involving Pacific Connex (Ballu Khan’s company). He also said that he did not try to verify the information contained in Major Narawa’s Report because his first duty as a Senior Police officer was to prevent the Commission of a crime. He was also cross-examined on the reasons for not putting Kuli’s name in his statement.
77. The last witness for the prosecution, Inspector Jitoko, gave evidence of seizures from Ballu Khan’s house being a blue tarpaulin cut into three pieces and 4 knives. He said that no weapons or arms were found apart from the knives.
78. The final part of the prosecution case came with the production of the evidence in relation to the Court Martial proceedings regarding mutiny at the camp in November 2000. You have seen copies of that evidence. At the time you were given it, I stressed to you, and I stress again now, that it is evidence that relates only to the second, third, sixth and eighth accused. It has nothing to do with the other accused persons. The prosecution have led this evidence of mutinous conduct in 2000 because they say that it shows that it is therefore more likely that the 4 accused (that is 2nd, 3rd, 6th and 8th ) have acted as has been alleged on this occasion. If you accept that the conduct in 2000 to which they pleaded guilty is so similar to the conduct presently charged, then that is evidence you can take into account in deciding if those four accused are conspirators on this occasion.
79. If you reject the idea that the mutiny is a similar situation to the current one, then you should put the mutiny evidence to one side, and concentrate on the other evidence. You should not conclude that these 4 are guilty or untruthful merely because they have these previous convictions. You must take into account what the 2nd and 3rd accused say: that is that because of that horrible experience in their lives they would never even consider behaving in this manner again.
DEFENCE CASE
80. We then come to the Defence case. As you know the first 5 accused gave evidence and the 6th, 7th and 8th accused elected to remain silent. That is their right; they do not have to give evidence. They are entitled to sit in the dock and require the prosecution to prove its case. You must not assume that they are guilty because they did not give evidence. The fact they did not give evidence proves nothing, one way or the other. It does nothing to establish their guilt.
81. Please remember too, ladies and gentlemen, that the first five accused in giving evidence, does not lift the burden from the prosecution to prove their case. No matter what these 5 accused say that burden remains on the prosecution until the end of the trial to prove to you, so that you are sure that these eight accused are guilty of conspiracy.
[First Accused]
82. The first accused in his sworn evidence told you of his status and career and said that he became a co-director with Ballu Khan of Pacific Connex. Pacific Connex he said was a company working in partnership with the Native Land Trust Board (NLTB) (through its commercial arm VDCL). The company looked at setting up I.T. operations for NLTB by use of the MYSAP system. In 2007, he says, the Military interfered a lot in the operation of Pacific Connex – he says because the company was set up in the days of the SDL government and that government licensed the company. In September 2007 the company came up with a proposal to try and diffuse the situation and that is when he had published his "National Reconciliation" statement in the print media.
83. He went on to say that Kuli, (PW1) visited him one evening after dinner, said he was from the military intelligence and that they (a group within the intelligence) had a plan to kill the Commander. He had come to the 1st accused because he (the first accused) had a lot of support from the people and from overseas diplomats. The first accused said that he told Kuli he wanted nothing to do with it and also not to ever come back and visit him. Transport then came to collect the first accused to go to Ballu Khan’s house and on request he took Kuli with him.
84. He says that it was not a meeting at Khan’s house that night – it was just a usual briefing with Khan and his boys. They had a farm project at Wailase. There were renovations to Khan’s house to discuss. Ballu Khan asked to be introduced to Kuli and the 1st accused said "I told Ballu Khan everything that Kuli told me and I told him not to accept anything Kuli told me". He told Kuli never to come back and he says he had no more meetings with him after that.
85. On the 22nd September he went to Nadi to watch the Nadi/Naitasiri match. He went with Ballu Khan. When he got there he went straight to Namaka to wish the teams well – he went nowhere else that day apart from Nadi/Namaka. He never went to Sabeto, although he knows that the 4th accused had a farm there, that he had been to once.
86. He had never been to a meeting at the Fijian Teachers Association (F.T.A.) Hall.
87. His family company owns the Naitasiri Provincial Council office building in Nausori. He had let the 3rd accused live in an apartment in that building. The family company also owns a 1000 acre farm in Wailase, and he knows of no meetings on the farm between Mills, the CRW boys or Kuli and he was never approached for approval to have any such meetings there.
88. He was about to develop the farm property at Wailase. Ballu Khan had already bought a D6 bulldozer to make roads. Someone was looking after the farm, living in a 4 bedroom house there. By reference to photographs he described the layout of the farm and its improvements.
89. The men from 3 FIR used to visit Ballu Khan’s house 2-3 times a week. They would tell the CRW boys not to do anything or they (the 3FIR) would arrest them. There were a lot of rumours circulating about an assassination plot. A direct approach was made to him (1st accused) on the 8th September 2007. Colonel Roko sent 2 men to tell him that there were rumours he was involved in a plot to assassinate the Commander. The accused told these men that he was related to Colonel Roko and he was most willing to meet him and discuss it. A meeting was arranged but that was aborted because the first accused said the Cabinet and the Military Council got to hear of it. He was called to camp that afternoon where he saw members of cabinet and the Military Council. He denied the rumours to the meeting. He answered questions and then he returned home. 28 people were at the meeting altogether.
90. He spoke of further meetings with Colonel Leweni and Colonel Roko and it was suggested that he (the 1st accused) find a way to move Fiji forward and was invited to contact the Minister for Fijian Affairs and the Minister for Foreign Affairs.
91. He said he did meet Major Narawa at the Sofitel but it had not been arranged and he was totally surprised when he showed up at his hotel room. Major Narawa told the first accused that they had weapons and explosives and asked for his support. He asked the 1st accused to approach Australia and New Zealand and ask them to provide weapons.
92. The first accused said to Major Narawa that he did not support him but wanted to concentrate on his business, family and regional obligations, and asked him to leave.
93. He told of his arrest and going to Central Police Station to see Ballu Khan. He told of making his statement under caution.
94. In cross-examination he denied that Kuli came twice to his home on a day in September. He denied that he first put forward the plan to assassinate the Commodore. He said he had to take Kuli to Ballu Khan’s house because Kuli was insisting and asked three times. He denied that there was a further meeting at his house between Mills, Siva and Kuli. He said he could not tell the Military that Kuli was pushing his plan because he felt that they were all working together.
[Second Accused]
95. The second accused gave sworn evidence. He told us of his part in the mutiny in 2000. He had no choice but to obey instructions of a senior officer to secure the main gate. He also said that he told the tribunal at the Court – Martial that he would never ever repeat what he did in November 2000 because of the way he had been assaulted and imprisoned for 5 years.
96. He later went to work for Ballu Khan as a body guard/driver. He also helped with renovations and carpentry. He had been taken to camp a few times and questioned about rumours and having been seen near the Commodore’s residence. He repeated his plea that he would never be involved with anything like that again.
97. The second accused too said that the assassination plan was brought to his group by Kuli and his group never talked between themselves about assassination.
98. He told of his arrest and serious assaults.
99. In cross-examination he said that he only saw Kuli come once to Ballu Khan’s house, but on other occasions saw him just standing at the gate. When asked why he not ask Kuli in or ask him why he was there, he said that Mills (the 3rd accused) was the "most Senior Master" and only he could approach him.
100. He remembers being at Sabeto, but it was not a meeting. He, Kuli, Siva (4th accused), Mills and some others were there. He confirmed that he searched Kuli and his group before they entered. They did not discuss the plan to kill, but it was Kuli’s idea to do a hit and run.
101. He was at the FTA Hall. It was not a meeting but Kuli’s group brought over whatever they wanted to discuss. "They gave their plan, we questioned them and they left", he said. At that discussion, Mills asked them what weapons they wanted to use to kill the Commander.
[Third Accused]
102. The third accused gave sworn evidence. He used to work for Ballu Khan from late 2005 until November 2007. He is presently unemployed. With Ballu Khan he was Chief of Security of both the company (Pacific Connex) and for the family. He was also involved in renovations at the residence. Before that he had been in the Military for 14 years until being involved in the mutiny in November 2000.
103. He told us of the mutiny. He was told to go and secure the officers’ Mess by a Sergeant who said it was on the orders of Captain Shane Steven. He went to do this with the 6th accused as his "cover" but the 6th accused got shot.
104. He saw the Commander and his body guards about 15 metres away from him. They were leaving the Mess and retreating down a slope. He just stood there with his gun in his hand, watching. He made his way back to the main gate. When he saw the loyal soldiers regrouping he ran away and surrendered in a village in Lami. He was taken to Nabua Police station but was taken from there by military personnel who assaulted him viciously. Although he had the opportunity to kill the Commander he said he could not.
105. At the Court-Martial proceedings he told the Tribunal that he was remorseful and would never do anything like that again, after all he had been through.
106. He recalled his arrest on 3 November 2007 on returning from a social function in Nadi. He was again savagely assaulted.
107. He told us that Kuli was constantly pestering him, haranguing him and pushing his execution plan. Kuli told him that time was running out.
108. He denied meeting with Kuli at the Naitasiri Provincial Council Building. It was where he lived and Kuli would come there to see him, usually for 5 minutes at a time and then leave.
109. He had never trained with Kuli and said in respect of the allegations of conspiracy that having gone through all the hardships of 2000, with a result that he is still in pain that he could never commit to doing anything like that again. The whole assassination idea was Kuli’s and he told his co-accused not to join in with him just for their own safety, and he himself had no intention to join him.
110. In cross-examination, the third accused confirmed that he was leading the assault at the Officers’ Mess. He recalled the meeting at the F.T.A. Hall where he (3rd accused) asked Kuli and his team what weapons they were going to use and then suddenly Kuli gave a list of weapons. He denied that the gathering at F.T.A. was a meeting he said it was just a confused exchange of ideas,; the only reason he was there was just to see what Kuli’s plan was and he had no intention of joining it.
111. He remembers no meetings at the Naitisiri Provincial Council building, and did not report Kuli’s plan because in 2006 Ballu Khan had written to the Police about tactics of Military against Pacific Connex but there had been no response. So he knew it was pointless to complain.
112. He recalls asking the first accused to use his land. Siva (4th accused) dropped him at Wailase and then four of them came in a van. He had gone to Wailase to cut trees for when the D6 bulldozer came. Kuli arrived talking of his execution plan. He did not know if the tarpaulin was cut into three and he would not train them in any event as they were unskilled. They later all went to Ballu Khan’s house.
[Fourth Accused]
113. The fourth accused in giving sworn evidence told us at great length about his education and employment history. He is obviously a highly educated man and a proven specialist in computer software applications. After a successful period abroad he returned to Fiji for family reasons in May 2003. He eventually met Ballu Khan with the result that he became employed at Pacific Connex as a General Manager/Marketing. He liaised with big companies trying to push MYSAP software on behalf of Pacific Connex.
114. He told of Pacific Connex falling out of favour with the government in late 2006, he says because of things that occurred in the SDL government days. The offices were raided and computers stolen. The fourth accused believed that Ballu Khan was suspected of corruption after the December 2006 "takeover".
115. The fourth accused remembers his arrest on the 3rd November and told us in infinite detail about his assault and movements after arrest.
116. In his caution interview given that day and the day following, he had said that there had been no meeting at Sabeto, but explained in his evidence in Court that he had really said no comment and it had been mis-recorded. He further said that they were going to the rugby in Nadi, and as Kuli had been pestering Mills to see him, Mills asked the 4th accused if he could make his farm house available, which he did. He denied giving a lecture at the farm.
117. He was at the F.T.A Hall, but only to drop Mills off to see Kuli and he had never been at any meeting at the Naitisiri Provincial Council building.
118. He went to Wailase to drop Mills off to clear trees.
119. IN cross examination he said he had seen Kuli at the first accused’s house, and then offered gratuitously "when I saw him he did not look like someone I could trust".
120. He also admitted in cross-examination that he was in the F.T.A meeting because he said it was a "discussion" where Kuli "vocalized" weapons. He did not recall meeting with Mills at the Naitasiri Provincial Council building but he was "vaguely told he lived in Nausori". He also admitted picking up Mills and Kuli from Wailase – then going to Ballu Khan’s for BBQ.
121. Before leaving the fourth accused, I must remind you that he told us of the time he lived in Auckland, he was involved with street kids in Papakura which is an area South of Auckland. He would take them from the street and introduce them to the outdoors and give them self confidence. If you believe this evidence these good deeds need to be taken to consideration: it is evidence of good character and it is entirely up to you what weight you might want to give it: the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit this crime now.
[Fifth Accused]
122. The fifth accused gave sworn evidence. He told us that he is in his 60s and has a long career record both in the Civil Service and the Military. In particular he said that in 1989, he was sworn in as Director of Fiji Intelligence Services by Ratu Kamisese Mara. You will remember he gave us his view of the role of intelligence services and the methodology they should use when receiving raw data. He concluded that in his expert opinion raw data should be verified by independent sources and if not that data could not be classified as intelligence. He had looked at Major Narawas power point presentation and at his written analysis of 14 meetings alleged to have been conducted between Kuli and the accused. He was of the opinion that those documents could never be classified as intelligence because they were lacking in essential requirements such as serial numbers, the grading of sources, continuity etc. He went further by saying that the statements of Kuli, Major Narawa and Sgt. Waqa were full of inconsistencies and inaccuracies. He concluded that all the documents were "useless".
123. He had met the Commander before and had talked to him, including at church. He had nothing against the Commander and anyway his wife is related to the Commander’s nephews and nieces and he himself had an obscure relationship tie to the Commander’s brother. He had never gone to meetings and he had no reason to be involved as alleged.
124. He denied in cross-examination that he had ever briefed Ballu Khan, Mills, Namulo and Kuli at a meeting in Muanikau and he did not recall PW1 saying in his evidence that he (Mua) did speak to the group, telling them the task had to be finished to the end, not like 2000.
125. The facts are entirely a matter for you ladies and gentlemen but when Mr Mua is talking about evidence from independent sources, you may wonder how independent his evidence as a so called expert is when he is one of the accused in this trial. Moreover in this trial you are not being asked to assess the veracity and validity of documents generated by various witnesses, but you are being asked to come to your opinions after hearing the evidence given if this court room by witnesses in the witness box. You may agree with Mr Mua and find the documents deficient but it is entirely up to you what weight you place on those exhibits.
126. As you are aware that was the end of the defence case. The 6th, 7th, and 8th accused elected to remain silent and I have already addressed you on the effect of that. You are to read nothing into it.
127. Of course the main thrust of the defence case is that the whole idea of assassination of the Prime Minister came from Kuli and the Military intelligence: that he pestered and harassed Mills, pushing this plan: that none of the accused here present wanted anything to do with the plan and none of them met to discuss furtherance of the plan.
128. Ladies and gentlemen, you may now retire. When you have all decided on your opinion, you will notify my clerks and I will reconvene the Court.
129. Any redirection, Counsel?
P.K. Madigan
Judge
At Suva
3 March 2010
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