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Judge Set To Rule On Times Trial Applications

Judge Set To Rule On Times Trial Applications
Fiji Times Publisher Hank Arts and Nai Lalakai column writer Josaia Waqabaca outside the High Court in Suva on May 7, 2018. Photo: Fonua Talei
May 08
11:36 2018

 

High Court judge Justice Thushara Rajasinghe will deliver his ruling this morning on the No Case To Answer applications submitted by defence lawyers in the Nai Lalakai alleged sedition case.

Parties were directed by the court on Thursday to file and serve their respective written and oral submissions and a hearing was conducted over two days on Friday May 4, 2018, wrapping up submissions yesterday morning.

The accused: Nai Lalakai column writer Josaia Waqabaca, Nai Lalakai Editor Anare Ravula, Fiji Times Editor-in-Chief Fred Wesley, its Publisher Hank Arts appeared in court represented by private lawyers.

As a company, Fiji Times Limited is also charged alongside the four accused men.

Assistant Director of Public Prosecutions Lee Burney

Mr Burney reiterated in the High Court yesterday that Ravula and Wesley assisted and encouraged Arts to publish the alleged seditious letter and they can be convicted as principal offenders.

Tesco Supermarkets Limited v Nattrass

Responding to submissions made on Friday by Fiji Times Limited lawyer Wylie Clarke, Mr Burney said there was no application of the Tesco case in the Fijian jurisdiction.

Mr Clarke relied on the Tesco case which was a leading decision of the House of Lords on the “directing mind” theory of corporate liability.

The supermarket was taken to court for alleged false advertising and its defence was that the company had taken all reasonable precautions and all due diligence and that the conduct of the store manager could not attach liability to the corporation.

The company was acquitted after it was found that the store manager was not the directing mind and will of the company and the company had done all it could to avoid committing an offence and the offence was the fault of another person (an employee).

Mr Burney submitted that the State’s approach regarding the newspaper company was one of implied authority.

Mr Burney said he was puzzled as to how the issue of authorisation arose from the defence that the company did not authorise Arts to do anything.

He said it was clearly outlined in Arts’ employment contract that he ran the company.

He stressed that the issue of authorisation never arose, unless the defence called the evidence of the company director Rajesh Patel to testify that he specifically gave a directive for the alleged seditious letter not to be published.

Aman Ravindra-Singh

In his response to Mr Burney’s submissions on Friday against the defence lawyers’ No Case To Answer applications, Mr Ravindra-Singh said it appeared that the State was trying to convince themselves that there was a case against the accused persons.

He said everyone who read the alleged seditious letter was a reasonable person who displayed no reaction to the letter.

Mr Ravindra-Singh said the reasonable person test was clear, adding that the people who read the letter were not extraordinary people.

He submitted that there was no test for promoting feelings of ill-will and hostility between different classes of the population of Fiji, namely between non-Muslims and Muslims.

He said ill-will was an emotion and hostility was action based and that the tranquility of the State could only be disturbed if there was a disturbance and in this case there was none.

Waqabaca’s lawyer said there was no evidence to prove the element of promoting feelings of ill-will and hostility between the different classes of the Fiji population.

He said the State had said more inciteful things in court about the different classes of people in Fiji compared with what was reflected in evidence.

He stated that the term “tendency”, which is mentioned in the charge, was not part of the elements of the offence of Sedition and the court should not entertain the same.

Mr Ravindra-Singh submitted that there was no evidence against religion presented before the court.

He said generally members of the public were vocal about issues; later posing the question if that made half of the Fiji population seditious.

“It is one thing to express an opinion and it is another thing to incite hate,” Mr Ravindra-Singh said.

Devanesh Sharma

In his submission, Mr Sharma invited the court to look at the sentences contained within the alleged seditious letter.

He said initially his client; Ravula, was charged because of one sentence in the letter.

However, the State was now relying on the whole article in their case.

“Where is the evidence that the letter has disturbed the tranquility of the State?” Mr Sharma asked.

He said the test of sedition was that the publication had promoted feelings of ill-will and hostility.

Mr Sharma submitted that it was incumbent on the State to prove that the charge did not fall within Section 66 (a) – (d) of the Crimes Act.

He said the State had not fulfilled that evidentiary burden.

Reading the charge against his client, Mr Sharma asked for the evidence showing that Ravula had a contractual duty to assist Arts and to ensure editorial standards were maintained, including a duty to prevent the publication of any seditious publication therein and his failure to prevent the publication of the said seditious publication aided and abetted Arts to publish the said seditious publication.

Mr Sharma argued that presumptions could not be made on the issue and that there needed to be evidence which pointed to Ravula’s contractual duty.

“Where does it say that he reports to Arts?” he asked.

He said there was no evidence saying that Ravula had a duty to ensure editorial standards were maintained.

Further, Mr Sharma submitted that the State had not called any expert witness to give evidence on the daily operations of a newspaper company and what the duties of the accused men were.

He said there was neither any evidence of editorial responsibility nor was there evidence that Ravula had seen the alleged seditious letter or had aided and abetted Arts to publish it, as per the charge.

Mr Sharma submitted that Section 67 (1) (a) of the Crimes Act made the commission of an “act” an offence. However, it did not include an “omission”.

He highlighted that the words “prevent” and “failure” included in the charge against Ravula referred to, “an omission to prevent the publication of the alleged seditious publication”.

Mr Sharma said based on the wordings of the charge there was no evidence to prove that Ravula aided and abetted Arts.

He said Section 67 did not capture the offence and that his client had been charged with an offence not known by law.

Marc Corlett QC

Mr Corlett reiterated in the High Court that an obligation under an employment contract was a private matter and not a duty by the law of Fiji.

Mr Corlett acknowledged that there was evidence that Arts was the General Manager and Publisher of the newspaper company.

However, the prosecution had to prove that Arts did an act that led to the publication of the letter.

He said throughout Mr Burney’s submission it was conceded that someone had done something.

He then added that it was improper for the State to drag Ravula, Wesley and Arts to court without knowing who had published the letter.

He said the State had effectively thrown it open to the defence to determine who of the three accused men had done the acts.

He added that it was captured in the State’s submissions that they were not aware as to who had received the letter, put it in the draft newspaper and authorised its publication.

Mr Corlett said by doing so the State had acknowledged that they had no idea how things worked in a newspaper company, who was responsible for collecting Letters to the Editor, who edited them and who printed them.

He submitted that all four accused men should be presumed innocent until proven guilty.

On the issue of editorial responsibility, Mr Corlett asked if Arts was being prosecuted because there was circumstantial evidence against him that he had done an act or was it because of his capacity as the general manager and publisher.

Mr Corlett said the case was not a prosecution under Section 194 of the Act, adding there was no common law principle.

When questioned by Justice Rajasinghe about Section 5 of the Act, Mr Corlett said the section allowed the interpretation of words, but not to draw a whole principle that had never been applied to sedition for application to Sedition.

Justice Rajasinghe questioned Mr Corlett what the common law principles were on the publication of sedition.

He responded saying the principles were that there needed to be an act and that the act had to be seditious.

In the context of sedition, Mr Corlett said one could not say that it was not important whether the accused persons did an act or not.

He said it was not whether he was the publisher of the newspaper rather it needed to be proven that an act was done that led to the publication.

He stressed that the key acts were, “Who received the letter? Who drafted it in the newspaper and who authorised its publication in the newspaper?”

He said the prosecution needed to produce more evidence that Arts had physical knowledge of the letter.

Wylie Clarke

Mr Clarke pointed out in court that Wesley and Arts’ position in relation to the act of printing the alleged seditious latter was different to the position taken by The Fiji Times.

He said with respect to the letter no evidence was adduced that proved The Fiji Times had the necessary seditious intention.

Referring to the utility of the Tesco case, Mr Clarke said it fleshes out what the court needed to look for in Section 52 and it dealt with the burden of proof.

He posed the question whether the act and intent should be attributed to the newspaper company.

He said the State had conceded that it did not know which of the three newspaper executives was guilty.

He said the State had submitted that The Fiji Times was presumed to have a seditious intention by virtue of Section 66 (2).

Mr Clarke said the State had thrown around a lot of hypotheticals without any attempt to fix the issue of intent.

He said the State was of the view that the company had baseline knowledge because of its general business of publishing articles and letters on a daily basis, adding that the case could not be built on that proposition.

Mr Clarke responded to the State’s submission that The Fiji Times had endorsed the letter because of the way it argued its defence and the suggestion of lawful blindness on their part.

Mr Clarke said this demonstrated by the lack of evidence provided by the State.

He said the court was led with the heavy task put on it by the State to try to analyse the letter and fit it into the offence.

He said there was no evidence adduced by the State to satisfy the question of intention.

Bail for all the accused has been extended.

Edited by Epineri Vula

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