Lawyers Give Closing Submissions

It is often said that the fish rots from its head, Lee Burney told the High Court in Suva yesterday. The Assistant Director of Public Prosecu­tions was giving his closing
16 May 2018 12:13
Lawyers Give Closing Submissions
Lawyer Nicholas Barnes (from left) , Fiji Times Publisher Hank Arts with Lawyer Marc Corlette outside High Court on May 15, 2018. Photo: Ronald Kumar.

It is often said that the fish rots from its head, Lee Burney told the High Court in Suva yesterday.

The Assistant Director of Public Prosecu­tions was giving his closing submission in the Fiji Times alleged sedition case.

Mr Burney referred to what he said was “a limp” in the defence argued by Fiji Times lawyer Wylie Clarke.

He told the three assessors that Mr Clarke had stated that the company was not respon­sible for what its employees did.

“I say Hank Arts was clearly authorised to do whatever he wanted amongst his long list of duties and responsibilities. He had the to­tal run of the place,” Mr Burney said.

He urged the assessors to accept that Fiji Times Editor-in-Chief Fred Wesley and Pub­lisher Arts were clearly authorised to pub­lish the letter because the defence did not call the evidence of any of the Fiji Times Di­rectors to testify otherwise, adding that the company was clearly liable.

Mr Burney said Mr Clarke was of the posi­tion that there was a “very healthy culture” in Fiji Times and an excellent system.

“Never mind the system, if the boss does not know right from wrong than everything stinks,” he told the Court.

He posed the question as to how the letter got out if Fiji Times staff were all well trained and the culture and system were great.

Mr Burney said Mr Clarke was stating the obvious when he said it was not against the law to speak out about the Government.

Further he mentioned that for a minute he thought Mr Clarke was standing for Parlia­ment when he said the case was about “si­lencing government critics”.

He said sedition was not used as a form of punishment rather it was used to protect the tranquillity of the country. He said the Pros­ecution was not in the business of punishing people, however, they were there to protect society.

Mr Burney said it did not add up that Mr Clarke had suggested that the letter was not seditious because it was humorous, whereas on the other hand the Acting Editor of the Nai Lalakai Unaisi Ratubalavu had testified that there was something wrong with the let­ter.

In his address Mr Burney said the opinion of Fiji Times witness Paul Geraghty was un­important and it did not interest him at all.

While referring to the defence argued by Arts lawyer Marc Corlett QC, Mr Burney was quoted saying, “Like a Swiss cheese that case is full of holes.”

He said Mr Corlett wanted the assessors to accept that Arts did not know anything.

Mr Burney said the only person who would know what Arts knew was Arts himself, who had elected not to give sworn testimony.

He suggested that Arts had hitched all his horses to one carriage after hearing Wesley’s evidence and chose to rely on the same witnesses.

Mr Burney said Arts had every reason to know what was being published because of the legal risks involved.

He added that it was not a careful (edito­rial) approach for Arts not to ask any ques­tions and not to have a look at the system (Pongrass).

Mr Burney said it was a “cut-throat de­fence” to point fingers at Nai Lalakai Edi­tor Anare Ravula that it was all his fault at the same time advance claims by the defence that they were not trying to blame him.

Mr Burney said it sounded to him that the defence was blaming Ravula when they authorised a search on his computer and tendered documents from their Pongrass Australian counterparts showing the his­tory of the April 27, 2016 edition of the Nai Lalakai Letters to the Editor Page history.

“Don’t you think it is ironic that although Ravula said nothing against his bosses, they have not said anything favourable about him,” Mr Burney asked the asses­sors.

“They have thrown him under the bus!”

He said the embarrassing part was that the defence was running an “I know noth­ing” defence.

Mr Burney said Wesley was evasive and not honest in his evidence because he did not want to reveal how close he was to the Nai Lalakai.

He told the assessors that Wesley was not being candid with them because it was later revealed that the staff were briefing him about the contents of the Nai Lalakai and that he had access to the system, thus he had plenty of time to check its contents because it was a weekly publication.

He said crucially Wesley would have had a keen interest to know what was being pub­lished because he was a man of vast experi­ence in the newspaper business and he knew the legal risks involved.

Mr Burney mentioned that Wesley was try­ing to protect his boss (Arts) when he testi­fied that the boss relied on him.

He added that if Wesley erred on the side of caution as testified in court than he would have known about the letter.

He said Wesley and Arts were handsomely paid to prevent the publication of the letter and it was repugnant that they had shoved all the blame to Ravula.

Mr Burney told the assessors that although they might feel sorry for Ravula, he had to ac­cept his share of the blame.

“The prosecution is saying that it is not all on him. He is not solely responsible,” Mr Burney said.

He said each of the accused persons in the case were responsible for the dissemination of the letter starting from the most junior employee (Ravula) to the most senior (Arts).

He told the assessors not to underestimate the influence of the Nai Lalakai.

He said a newspaper spreads ideas and opin­ions and once a seed of prejudice is planted in the minds of people it outlives the news­paper.

“Newspapers are kept. They do not self-de­struct. It is a permanent record,” he said.

Mr Burney said the letter as a whole amounted to an unacceptable generalisation about the nature of Muslims and it was ob­vious that its purpose was to make people feel ill will and hostility towards Muslims, including Fijian Muslims.

He asked if that was not the purpose of the letter then why was it mentioned in an iTaukei newspaper.

Mr Burney stated that Nai Lalakai column writer Josaia Waqabaca had said in his cau­tion interview that he was exercising his freedom of expression and speech when he wrote the letter.

Mr Burney said that freedom was subject to limitations and one thing that Waqabaca could not do was to use hate speech and to speak in such a way that would create hatred among members of the community.

He said the case was important because it would define what was permissible to say in a national newspaper.

He told the assessors that any society that was afraid to call out and condemn ethno-re­ligious nationalism was on a very rocky road because it was toxic influence.

They were invited to decide whether the message in the letter was legitimate in mod­ern day Fiji or whether it created feelings of ill will and hostility between different classes

of the population of Fiji, namely between Non-Muslim and Muslims.

He said Wesley, Arts and The Fiji Times were not standing up for free speech rather they were breaking the law because they provided the platform for the letter to be pub­lished and without the Nai Lalakai Waqabaca would just be a “sad old man sitting at home typing poison­ous letters.”

He said it was pertinent to protect the right to practise religion and in this case it was Muslims who were singled out and attacked.

He posed the question as to who was going to stand up when other faiths were singled out and at­tacked as the next article came out.

Mr Burney said the case was about nipping feelings of ill will and hos­tility in the bud before it bloomed and violence happened.

Closing Address by Aman Ravindra-Singh

While addressing the assessors, Mr Singh said the letter written by his client, Waqabaca, was genuine and was about him expressing his concerns about the issues faced by the iTaukei people.

He said Waqabaca was a regular contributor to the Nai Lalakai after September 2014 and there was noth­ing wrong with his letter nor was there anything illegal written in it.

Mr Singh said the original recipi­ent of the letter, which was the At­torney General, did not lodge a complaint about the letter nor did he give evidence about it or tender a statement.


He said the letter was written by a citizen and it was legitimate and the complainant; the Permanent Secretary of iTaukei Affairs Nai­pote Katonitabua, decided to lodge a complaint two months after pub­lication.

He added that Mr Katonitabua was a confused witness.

Mr Singh said no complaint was lodged by any member of the com­munity, any religious group or any person from the Muslim faith in­cluding other faiths.

He said the Prosecution failed to satisfy the test that the evidence from their witnesses should be be­yond a reasonable doubt.

He said if the letter was seditious than his client would be charged with a second count for giving the letter to the AG.

Mr Singh told the assessors that there was not a single shred of evi­dence adduced to prove that Waqa­baca had a seditious intention.

He said all Waqabaca did was point out what happened in Bangla­desh and there was no links to Fiji to people practising the Muslim faith in Fiji.

He told the assessors to go with the evidence and not to make assump­tions or infer things that were not there.

Closing Address by Devanesh Sharma

In his address Ravula’s lawyer said the letter was not seditious and Arts did not publish it as alleged.

Mr Sharma said the letter was capable of having other interpre­tations and some of the issues dis­cussed in it was the national debt, elections and a stable government for Fiji.

He said the words in the letter that Muslims were not the owners of Fiji were a fact and that the iTaukei were indigenous to Fiji.

Mr Sharma said any reasonable person would know that the refer­ence made to Bangladesh in the let­ter was not a reference to Fiji.

He said the suggestion by Waqa­baca for a national reconciliation and for the adoption of the 10 com­mandments as a guide was an advo­cacy for peaceful resolution.

He told the assessors that the let­ter contained Waqabaca’s personal views and commentary and it was published in the letters to the edi­tor section which was reserved for readers to air their views on vari­ous matters.

Mr Sharma said there was no evi­dence that Ravula was present on the day the alleged seditious letter was published.

He said there was zero impact of the letter to Nai Lalakai readers because nobody bothered to com­plain about it to the Media Industry Development Authority and MIDA did not take up any issues with the letter.

Further, he stated that there was no effect that the letter gave rise to incidents of hostility in the coun­try and that it disturbed the tran­quillity of Fiji.

Mr Sharma told the assessors that Ravula could only be convicted if Arts was found guilty because Ra­vula was charged with aiding and abetting Arts.

He said some parts of the letter echoed robust opinions by Waqa­baca, however, that did not make the letter seditious.

Mr Sharma also mentioned that Ravula’s employment contract did not say he had a contractual duty to Arts because he does not report to Arts.

Closing Address by Mr Corlett

“To make a man liable to impris­onment for an offence which he does not know he is committing and which he is unable to prevent is repugnant to the ordinary man’s concept of justice and brings the law into contempt.”

Mr Corlett uttered the quote when addressing the assessors yesterday.

He said it was repugnant to justice that the prosecution was urging the assessors to reach an opinion of guilty for his clients; Wesley and Arts, even though they did not see the letter, did not have knowledge about it or authorise it to be pub­lished.

Mr Corlett said his clients did not do any act to cause the letter to be published. He said they could not become criminals because of their job titles rather if they knew about the letter before it was published.

Mr Corlett put to the assessors the following three questions, “Does Arts review the letters and decide which ones get printed?”

“If he does not then who does?” and lastly, “If the Editor; Ravula, is the one who decides which letters get printed then does he show the letters to the Editor In Chief; Wes­ley, before it is published?”

He said the whole case was prem­ised on the idea that the Editor does the draft newspaper before it is re­viewed by the Editor In Chief and finally approved by the Publisher.

Mr Corlett said that assumption was wrong and the Police did not understand how things work.

Answering the questions, he put forward to the assessors, Mr Corlett said the answer to whether Arts re­viewed the letter was an unequivo­cal no.

He said as the general manager Arts had a lot of departments to look after adding that he did not read the iTaukei language which was the same for Wesley who only spoke the language.

For the second question Mr Cor­lett said Ravula reviews the letters and decides which ones get printed.

For the third question he said Wes­ley does not see the letters unless Ravula raises concerns to him.

Mr Corlett said the text file docu­ment tendered as evidence was a fingerprint which revealed who had worked on the letter and who did not.

He said the document was created by a Viliame Odro and at 12:30pm on April 25, 2016, Ravula put the let­ter into the Pongrass System.

He said the text file states that the Wesley and Arts did not work on the letter and as per the evidence of the Information Technology guy, a version of the letter was found on Ravula’s computer and not Wes­ley’s or Arts’.

Mr Corlett said evidence also re­vealed that Ravula had typeset the letter onto the page and there was no involvement from Wesley or Arts who did not have access to the system.

He said it was common ground and it was indisputable that Wesley never saw the letter.

Mr Corlett stated that Wesley was a conservative who regularly sent things to their legal team.

He suggested to the assessors why there was no feedback from Nai La­lakai readers about the letters.

He said the letter was written by an unemployed taxi driver and Fiji was a tolerant society.

Closing Address by Mr Clarke

Mr Clarke invited the assessors to look at the letter as a whole adding that it was not seditious.

He said the Prosecution wanted the assessors to ignore the more natural meanings of the words in the letter.

He said the case was not about a threat to religious harmony be­tween Muslims and Non-Muslims rather it was about a man who was troubled by what the Government was doing.

Mr Clarke said the PS did not raise his grievances with MIDA (Media Industry Development Authority).

He said the PS had stated that before reporting the matter to the Police he had emailed the Editor of the Fiji Times but it would not be surprising to note that the email was never found.

He said the only reason the com­plaint was made was so that the ministry was heard and that they were given coverage by Nai La­lakai.

Mr Clarke said it was not against the law to criticise Government or politicians and it was what consti­tuted a democracy and kept politi­cians in check.

He said it was fatal to the Prosecu­tion’s case that it was not seditious to point out matters of concern that may lead to feelings of ill will so that it could be resolved.

He said the letter did not intend to promote feelings of ill will and hos­tility rather it was far from it and instead it was a plea for reconcilia­tion for the sake of the future gen­erations of Fiji.

While addressing the issue of mind and will of the company Mr Clarke said only the mind and will of the Board of Directors and Wes­ley and Arts were important.

He said the company maintained that Wesley and Arts did not au­thorise the publication of the letter.

He added there was no evidence that the Board was aware of the letter and like Wesley and Arts the company could not be found guilty for something it did not know about.

Defence Lawyers in Fiji Times case Wylie Clarke followed by Devanesh Sharma outside High Court on May 15, 2018. Photo: Ronald Kumar.

Defence Lawyers in Fiji Times case Wylie Clarke followed by Devanesh Sharma outside High Court on May 15, 2018. Photo: Ronald Kumar.

Trial judge Justice Thushara Ra­jasinghe will sum up the case be­fore the assessors on Friday morn­ing.

Edited by Naisa Koroi


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