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Prosecution ‘Has Elements To Prove’

Prosecution ‘Has Elements To Prove’
Mosese Bulitavu outside Suva Court. Photo: Simione Haravanua
July 21
12:19 2018

The High Court has been told that the prosecution needs to prove that Suva lawyer Mosese Bulitavu committed actus reus or the action or conduct which is a constituent element of a crime.

The submission by defence lawyer Filimoni Vosarogo was in respect of charges of sedition against Bulitavu, for which the former parliamentarian was sentenced to two years, five months and 13 days behind bars on April 30 this year.

Mr Vosarogo submitted yesterday that if the allegations against his client Jagath Karunaratne were accepted than it must be proved that his co-accused Bulitavu committed the actus reus of the case.

Mr Vosarogo made submissions before Justice Vinsent Perera during the appeal hearing for the two men.

Bulitavu and Karunaratne are appealing against their sentences and conviction.

They were convicted in April this year for spray painting signboards between Nausori and Suva with the seditious intention of bringing hatred against the Government in 2011.

Karunaratne was sentenced to two years five months and 16 days imprisonment.

In his submissions Mr Vosarogo said at no point in time in the evidence of the four prosecution witnesses had they mentioned that Karunaratne assisted or aided and abetted them.

He cited the recent Fiji Times sedition case and said that there was a dilemma of how the charges should have been framed.

He said having incomplete charges prevented accused persons from properly comprehending what they had to answer to.

Mr Vosarogo said the State was charging his client as a principal offender and not an aider and abetter.

He submitted that the absence of more particulars in the charge was not consistent with Section 14 (2) (b) and (c) of the 2013 Fijian Constitution.

Karunaratne, through his lawyer, is challenging the charge of sedition on the ground that there are no elements of what the charge is supposed to constitute under the law.

Mr Vosarogo submitted that his client was not directly involved in the physical element of the offence and had no part in the discussions between the three prosecution witnesses in identifying the places they were going to spray paint.

He said at no point was there any suggestion that Karunaratne had any knowledge and participated or understood what was going on because the men were speaking in the iTaukei language.

“It is clear from the evidence of the prosecution witnesses that he had no knowledge of the iTaukei language and had no knowledge of what was discussed in the vehicle during their trip from Nausori to Suva,” Mr Vosarogo told the court.

Bulitavu’s lawyer, Barbara Malimali, said the learned Magistrate failed to follow the principles already set by the High Court and that the errors committed were fatal.

She said they were not disputing that when the alleged acts took place there was no constitution in place.

However, they were disputing its application.

State lawyer Yogesh Prasad said the prosecution had strong circumstantial evidence from their witnesses.

He said no substantial miscarriage of justice had occurred and that the sentences against the two convicted men were just in all circumstances.

Justice Perera will deliver his ruling on the appeal on August 24, 2018.

Both men are currently serving their prison sentences.

Edited by Epineri Vula

Feedback:  fonua.talei@fijisun.com.fj

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