Assistant Director of Public Prosecutions Lee Burney submitted in the High Court yesterday that the stance adopted by the defence that The Fiji Times executives did not have any contractual duties was a “strange vision”.

Mr Burney likened the position to the abandoned ship the Mary Celeste, an American merchant two-masted sailing vessel which was discovered adrift and deserted in the Atlantic Ocean on December 5, 1872.

Mr Burney termed it the “Sloppy Shoulder Defence” that while the accused persons admitted that the letter was published they, however, contended that they had no contractual duty.

He asked: “if the Editor-in-Chief has no duty to ensure editorial standards than who has? If the publisher does not publish then who does?”

He said the contractual duty was in the job titles of the accused persons.

Responding to the submission by the second accused’s lawyer, Devanesh Sharma, Mr Burney said just because a statement was factually correct did not mean that it is not seditious.

He said that was not the test of sedition.

He said the prosecution did not have to prove that the accused men had actual knowledge.

“Ignorance of the law cannot be defence of criminal law,” Mr Burney said.

He said it was a ludicrous position if an accused claimed that they had no knowledge, thus putting them in the clear.

Mr Burney also stated that the defence did not state that the letter was a verbatim reproduction because it did not read like a letter to the Attorney-General.

He said the disturbance to the tranquility of the State was alluded to by the Permanent Secretary of the Ministry of iTaukei Affairs Naipote Katonitabua and one could get a sense that the letter created a concern during his visits to iTaukei communities.

He said under Section 45 the Court could convict Nai Lalakai editor Anare Ravula and The Fiji Times Editor-in-Chief Wesley as principal offenders.

The section states that, “a person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty”.

Mr Burney said Mr Corlett’s submission was based on a couple of false premises.

He said The Fiji Times publisher Hank Arts was charged with publishing the letter and as per his contract he was the person responsible.

Mr Burney said Arts was the, “puppet master” and he was given that responsibility by the company’s Board of Directors and it was prima facie evidence that he was the publisher.

He said whether Ravula, Wesley or Arts were asleep at the wheel or not the “poisonous narrative” found its way to iTaukei communities.

Mr Burney submitted that there was a strong circumstantial case against the accused men.

He posed the question as to why the letter was circulated in Fiji if it did not have anything to do with Muslims in Fiji, adding that the defence was trying to pass off the letter as some sort of comment on world affairs.

Mr Burney said the readership was predominantly iTaukei Christians, adding that the target audience was important to note when taking into consideration the issue of “tendency”.

He said what column writer Josaia Waqabaca did was draw a parallel between what Muslims did in Bangladesh and a scaremongering prediction for Fiji.

“It’s not even coded and there is nothing subtle about that,” Mr Burney said.

He said it was open to the fact finders that the act done by Waqabaca objectively had the tendency to  promote feelings of ill-will and hostility between different classes of the population of Fiji, namely between non-Muslims and Muslims, thereby disturbing the tranquility of the State.

He said any reasonable person reading the letter could not fail to recognise this.

Mr Burney further mentioned that it was irrelevant that Arts did not speak the iTaukei language in the context that he worked alongside people who did.

“The more you get paid the more responsibility you have,” he said.

Letter writer, Josaia Waqabaca outside High Court on May 4, 2018. Photo: Ronald Kumar.

Josaia Waqabaca – No Case To Answer

Counsel for first accused Nai Lalakai column writer Waqabaca submitted in the High Court yesterday that the simple act of submitting an article for publication did not render the article or Waqabaca’s action as a seditious act.

Lawyer Aman Ravindra-Singh made oral submissions for a No Case To Answer, seeking his client’s acquittal by Justice Thushara Rajasinghe.

Mr Ravindra-Singh submitted that the article was sent to the Attorney-General of Fiji as a letter of protest and was addressing grievances suffered by the indigenous people of Fiji.

He said the person to whom the letter was addressed did not lodge a complaint.

He said the letter could not be accepted as a legitimate form of communication expressing concerns regarding indigenous land and other issues and on the other hand be treated as a seditious act with a seditious intention when it was published in the iTaukei newspaper.

Mr Ravindra-Singh said it was contradictory and there was no evidence to support element three of the offence which is, “did a seditious act, submitted an article written by him under the heading “Sa Notisitaki ko Vunilawa” (translated as “Notice to the Attorney-General”) for publication in the Nai Lalakai newspaper.”

Further, he submitted that there was no evidence to support element four of the offence that Waqabaca had a seditious intention to promote feelings of ill-will and hostility between different classes of the population of Fiji and that was between non-Muslims and Muslims.

Highlighting the evidence of the first prosecution witness, Mr Katonitabua, Mr Ravindra-Singh said the witness gave no evidence to support elements three and four.

He said Mr Katonitabua’s evidence was hearsay evidence, which he picked from his department.

Waqabaca’s lawyer said it was opinion evidence for which Mr Katonitabua was neither qualified nor classed as a person who had any idea about what sedition was about or that he had in-depth knowledge about what constitutes sedition.

“This witness further confirmed that there was nothing hateful in the article against Muslims in Fiji,” Mr Ravindra-Singh said.

“This witness further confirmed that the reference to Muslims was regarding Muslims in Bangladesh and that he did not have any idea about what occurred in Bangladesh.”

Mr Ravindra-Singh also mentioned the evidence of investigation officer Inspector Esili Nadolo.

He said Inspector Nadolo did not give any evidence to support elements three and four of sedition.

He said the only thing that Inspector Nadolo confirmed was that he interviewed Waqabaca and that the column writer was co-operative.

“This witness further confirmed that there was nothing hateful in the article against Muslims in Fiji,” he said.

“This witness confirmed that the article referred to Muslim actions in Bangladesh and not in Fiji.”

He said Inspector Nadolo confirmed that there were no complaints of ill-will and hostility between different classes of the population in Fiji namely between non-Muslims and Muslims.

“The prosecution surely needed better evidence to charge the first accused with a serious charge such as the current charge of sedition,” Mr Ravindra-Singh.

He said the letter did not specifically attack Muslims in Fiji or was directed to them. Mr Ravindra-Singh said the letter should not be taken out of context unless there was a law that said that people could not express themselves.

He said the evidence called by the prosecution was ill conceived and opinion based and did not touch on the elements of the offence.

He said there was also no evidence that the letter was neither against the Government nor was there any plan to derail the government of the day.

Nai Lalakai Editor, Anare Ravula outside High Court on May 4, 2018. Photo: Ronald Kumar.

Anare Ravula – No Case To Answer

Lawyer Devanesh Sharma, who is representing the Editor of the Nai Lalakai, submitted yesterday that the evidence against his client did not measure up to the standards set by the court.

He said the terms ill-will and hostility were not defined under the Crimes Act.

He said the letter did not say anything against Muslims and did not instigate the Government to take any action against Muslims.

Mr Sharma said on its own, ill-will could not fulfil the elements of the offence of aiding and abetting sedition.

He said the statement in the letter that Muslims were not the owners of Fiji was factually correct.

Mr Sharma submitted that the statement that Muslims had invaded Bangladesh was a clear reference to what happened in Bangladesh, which was a historical fact.

He said the only evidence submitted by the State was that the letter contained Waqabaca’s opinions.

He said any reasonable person reading the letter would know that it was addressed to the Attorney-General and it was not an open letter to the people of Fiji.

He said the reference to Bangladesh in another part of the letter was a comparison and Waqabaca was not antagonising Muslims in Fiji.

Mr Sharma said the article spoke for itself as a piece of evidence and that the words did not need any analysis.

He said the intention of the letter was clear in that it advocated national reconciliation.

He posed the question of how a letter which sought national reconciliation could disturb the tranquility of the State.

He said the test for seditious publication had not been proven by evidence.

On the issue of contractual duty, Mr Sharma submitted that no where did it say that Ravula reported to Arts.

He said Ravula could not be charged with aiding and abetting Arts because he had no reporting requirements to Arts, who is alleged to have committed the seditious offence.

Fred Wesley and Hank Arts – No Case To Answer

Marc Corlett QC stated yesterday in his submissions for No Case to Answer that a person who has done no act could not have done so with a guilty mind.

He said to punish someone who has done no act was, “repugnant to the ordinary man’s concept of justice and brings the law into contempt”.

He said there was no relevant and admissible evidence against his clients Wesley and Arts.

The Fiji Times Editor-in-Chief Fred Wesley outside the High Court on May 4, 2018.
Photo: Ronald Kumar.

Contractual duty

Addressing the issue of contractual duty, Mr Corlett said there was no such contractual duty on the part of his clients.

He said the law in Fiji was abundantly clear in that a mere omission to perform a contractual duty was not a culpable omission.

He said only exceptional circumstances could warrant a conviction for a culpable omission.

Fred Wesley “culpable omission”

Mr Corlett submitted that a breach of a contractual duty did not make something a culpable omission.

He said the Crimes Act was clear about offences involving culpable omissions, adding that there was no general duty to prevent commission of crime and that common law duties were not part of the Crimes Act.

Mr Corlett stated that Section 67 did not explicitly make an omission culpable.

He said the State needs to prove that Wesley’s conduct aided and abetted the commission of the offence.

He said there was no evidence that Wesley did any act and there was no evidence that there was any act of aiding and abetting Arts.

He submitted that pursuant to Section 67 in order to rely on Section 45 one needed to look at the offence provision and see whether it makes an omission a culpable omission.

Hank Arts

Mr Corlett said the evidence adduced by the prosecution was relevant only to Arts’ status as publisher and was not relevant in regards to the elements of the offence.

He said there was no evidence that Arts received the alleged seditious letter from Waqabaca nor was there evidence that he authorised its publication.

He said his client was not being prosecuted because he did an act rather he was being prosecuted because of his status as publisher.

Mr Corlett mentioned that the criminal law in Fiji was codified.

Referring to the Crimes Act, Mr Corlett said common law offences do not apply and the principles to be applied were codified in the Crimes Act.

However, he said, common law could be used for interpretation purposes.

He said if the Prosecution was right that Arts could be guilty then it would be contrary to Sections 24 and 25 of the Crimes Act.

He added that there were no equivalent provisions in Section 67.

Justice Thushara Rajasinghe questioned Mr Corlett on Section 23 Subsection 2 which states that, “if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element”.

Mr Corlett responded saying the section applied to sections where recklessness was sufficient and that the Section made no reference to Section 67.

He submitted that one who held the status of publisher under the Media Decree could be liable when certain offences were committed.

However, he said the case was dealing with the Crimes Act adding that the specified acts in Section 67 was set out in the transitive verb and there was nothing that suggests that one could be held liable by virtue of being a publisher.

He said the Prosecution needed to prove that Arts did an act and that he knew about the letter and that it was going to be published and dispatched.

Fiji Times Limited – No Case To Answer

Fiji Times Limited lawyer Wylie Clarke submitted that the prosecution had moved to a general indictment and in doing so they were now focusing on the language used in the letter regarding Muslims.

He said the prosecution was of the logic that the comments regarding Muslims were evidence of sedition.

He then mentioned that if that were the case than news reports on CNN, BBC and Aljazeera about atrocities committed by the Taliban and other groups were capable of sedition.

Mr Clarke submitted that a serious problem with the prosecution’s case was the inference that the iTaukei audience was incapable of understanding the letter.

He said the case inferred naivety and ignorance, which was insulting, patronising and was a very paternalistic position to argue.

Mr Clarke said there was no evidence by the prosecution that the The Fiji Times Limited Board of Directors or high managerial agent had authorised the commission of the offence of sedition.

He said the directing mind and will was the test for corporate liability.

He said there was no dispute that The Fiji Times printed the letter.

However, there was no evidence that Arts carried out its production.

Mr Clarke said the prosecution never called evidence which touched on the question posed that there was implicit authorisation or permission to commit the offence.

He said apart from contractual duty there was no evidence to satisfy the requirements of Section 53.

He said this was sufficient for the newspaper company to submit that there was no case to answer against them.

On Monday morning, Justice Rajasinghe will hear responses from defence lawyers in relation to the State’s submissions on their No Case To Answer applications.

Bail for all accused men is extended.

Edited by Epineri Vula

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