The Fiji Court of Appeal Judge Justice Suresh Chandra has ordered steps to proceed with the appeals matter against newspaper The Fiji Times, its former Publisher Hank Arts and their columnist Josaia Waqabaca.

The three together with Editor-in-Chief Fred Wesley were charged and subsequently acquitted of sedition by the High Court in May last year.

The Director of Public Prosecutions appealed the matter. The Office of the DPP was represented by Assistant DPP Lee Burney.

Waqabaca had represented himself, Arts was represented by Nicholas Barnes of Munro Leys and the Fiji Times Limited was represented by William Clarke from Howards Lawyers.

Arts was not present in court when the matter was called yesterday.

Waqabaca, Arts and Fiji Times Limited were charged with sedition in respect of a column written by Waqabaca which was published in the iTaukei vernacular newspaper Nai Lalakai on April 27, 2016.

Mr Burney told the court that upon filing the notice of appeal, the Registrar would have to provide the documents and recordings of the proceedings.

Justice Chandra said the procedure would follow when the ruling was delivered on the matter.

Mr Barnes and Mr Clarke together submitted that the appeal was on the question of law and not the facts.

Waqabaca also agreed with Mr Barnes and Mr Clarke and told the court that he stood on the same grounds as the other two respondents.

The matter was adjourned for mention on notice after Justice Chandra ordered that the steps be taken in practice as directed.
The grounds of appeal are:

The learned trial Judge misdirected the assessors as to the meaning of ‘seditious intention’ as defined in Section 66 (1) Crimes Act. In the summing up, the learned trial Judge directed that: “the publication is not seditious if it was done with the one or some of the following intentions.”

The learned trial Judge further misdirected the assessors in the summing up on the standard of proof required to be met by the defence in order to discharge the defence burden of proving one or more of the exceptions in Section 66 (1)(a) – (d) Crimes Act.

The learned trial Judge failed to adequately direct the assessors on the proper limits on the ‘freedom of expression’ defence advanced by the first respondent and adopted to some degree by all the respondents.

The learned trial Judge erred in law in allowing counsel for the fifth accused to lead impermissible opinion evidence on the merits of the prosecution case from Professor Geragthy which was highly prejudicial to the prosecution case.

The orders sought by the ODPP was that errors in the summing up were so fundamental to the manner in which the assessors were directed to consider the central issue whether the article in the April 27, 2016 edition of Nai Lalakai was a seditious publication as to vitiate the opinions of the assessors.

By the misdirections, the learned trial Judge disabled the assessors from giving him the assistance they should have given and thus in turn disabled himself from taking their opinions into account as he should have done.

The DPP therefore prayed for the Court of Appeal to set aside the acquittals.

Edited by Percy Kean

Feedback:  ashna.kumar@fijisun.com.fj