Takiveikata v State [2008] FJHC 315; HAM039.2008 (12 November 2008)

Appearances:
STATE: Ms A Prasad, Ms N Tikoisuva
ACCUSED 1: Mr A Naco
ACCUSED 2: Mr D Sharma
ACCUSED 3, 4, 7, 8 & 9: Mr F Vosarogo [Legal Aid]
ACCUSED 5: Mr M Raza
ACCUSED 6: Mr T Fa
ACCUSED 10: Mr P Williams, QC; Mr G Leung & Ms K Philips

Date of Hearing: 15 &16 July, 15-19 September, 2008
Date of decision: Wednesday, 12th November 2008, Suva

CONTENTS
Introduction	4
Background	4
Grounds of the application: overview	5
Burden and standard of proof on application for a stay of proceedings	8
Evidence	8
Principles of Law	10
Basic starting point	10
Discretionary and exceptional remedy	20
Prejudice to a fair trial	21
The seriousness of the charges	23
Pre-trial publicity	24
Conduct which shocks the conscience	33
Introduction	33
Pre-trial harassment by the military	34
Entrapment	44
The military knew better (or knew more)	46
Assaults on and mistreatment of Mr Khan post interception	47
Unlawful detention	51
Denial of access to a lawyer	62
Denial of access to spouse or partner	68
Alleged mistreatment of the partner of Mr Khan	69
Improper or bad faith investigation by the military	73
Revelation of copies of an intimate recording in the possession of Mr Khan	81
Conclusions	84
Evidence inadmissible and prejudicial	89
Disclosure and destruction of evidence	89
Introduction	89
The obligation to disclose	90
Evaluation	107
Expense of a major trial	113
Conclusion and orders	113

Introduction

1 The applicants in this proceeding are facing charges before the High Court which allege that they were participants in three counts of conspiracy to murder.

2 To these charges each of the accused has, on arraignment, pleaded not guilty and, but for this application, would be required to face trial in the High Court in the ordinary way. However, each of the accused has applied to the High Court for a permanent stay of the trial of that information.

3 This is my judgement on the application for a permanent stay.

Background

4 In December 2006, members of the military forces of Fiji assumed components of the executive power of the government of Fiji. Some have referred to those events as a coup d'état. Whether that is a technically correct or politically apt expression is not critical to the issues which the Court has to consider in the instant case. The charges before the court concern events which are alleged to have occurred between September and November 2007. By that time, the commander of the military forces of Fiji, had assumed the office of acting Prime Minister. Also by that time, relevant to these proceedings, there was in place an acting Minister of Finance and an acting Attorney General.

5. The case for the prosecution is that a group of persons which included the accused entered into an agreement to murder the persons who were then, respectively, the acting Prime Minister, the acting Minister of Finance and the acting Attorney General. The prosecution alleges that a military officer, Corporal Kuli managed to infiltrate this group of persons by, amongst other things, pretending to support the course of conduct which was said to be under discussion and which culminated in the charges of conspiracy to murder. At a later stage in this conspiracy, the prosecution alleges that a further military officer, Major Narawa, also infiltrated the group. Again, the case for the prosecution is that Major Narawa did so by leading the alleged conspirators believe that he was on their side. Corporal Kuli and Major Narawa portrayed themselves as military officers (which they were), but ones who were disaffected with the military officers who were then in positions of power in the executive branch of the government of Fiji.

6. The principal source of evidence for the conspiracy comes from the proposed testimony of Cpl Kuli. On the basis of the statements he has supplied, his evidence is that he spoke to the accused and participated in the discussions during which the conspiracy was formulated and, to some extent, refined both as to scope and as to detail. It is no understatement to say that the case for the prosecution hinges on his testimony. In due course, it will be necessary to review components of his proposed testimony as revealed by the three witness statements that he has given. This is because part of the case for the accused in their applications for a stay of proceedings is based on the content of his proposed testimony.

Grounds of the application: overview

7 In very broad terms, the grounds upon which the permanent stay of proceedings is sought are, at least, as follows:

There is also an over-arching assertion that the conduct of the military, taken as a whole, is such that it would be improper to hold a trial.

8 Not every accused relies on each of the grounds outlined above. In due course, it will be necessary to refine the statement of the grounds of the application by reference to specific accused.

9 The factual case put by the accused is complex and is not easy to summarise in a paragraph. The essence of it that members of the military and, towards the end of the period under consideration, the police engaged in a concerted campaign to harm the interests of the accused. Prior to the arrest of the accused the case for the accused is that the military sought to harm the ability of certain of the accused in their employment and business interests. Some of the accused were former members of the Fiji military in an elite unit known as the Counter Revolutionary Warfare Unit (CRW) and having served jail terms for various offences of (or akin to) mutiny, tried to rehabilitate their lives. They secured work as security guards with the 10th accused. The 10th accused was a successful businessman who, so he contended, had fallen foul of the military and the military sought to damage him and his business and economic interests. The accused who were formerly members of the CRW unit were harassed by the military. The conduct includes acts which were unlawful and in some cases amounted to the deprivation of the liberty of some accused. Following their arrest, the military and police by a variety of acts including concerted assaults on the 10th accused and to a lesser extent other accused, the publication of comments adverse to the interest of amongst others, the 10th accused and the revelation of certain personal intimate material belonging to the 10th accused and the treatment of him and his spouse/partner amounted to, taken as a whole, a deliberate course of conduct which was so outrageous as to amount to conduct which should result in a stay of these proceedings. Further it is alleged that the investigation and observation of the accused while the conspiracy the subject of the charges was being formulated, was itself so flawed, improper and not undertaken in good faith so as to justify a stay of proceedings. Finally, the case for the accused is that a stay should be granted because of the deliberate destruction of certain evidence which, so the accused say, would assist them in defending themselves against the charges.

10 As I say, this is only a brief summary of the factual case for the accused. I will examine this in detail later in this judgment.

11 I should add one further point at this stage. The fact that some of the accused had been convicted for various offences of (or akin to) mutiny is not something I have held against those accused. It is common ground that these convictions partly informed the bias alleged against the military. The convictions have not in any way affected my assessment of the evidence and the case. These matters were responsibly exposed in the course of argument as necessary background for me to understand the competing contentions.

Burden and standard of proof on application for a stay of proceedings

12 Before a stay of proceedings could be considered, there must be a factual basis for that consideration. It is common ground that the accused bear the burden of proof of establishing the facts which might justify the intervention of this court by way of stay of proceedings. It is also common ground that the standard of proof which must be attained is proof to the civil standard. The facts must be established by evidence which is admissible under the law.

Evidence

13 The basis for the cases for the accused and the case for the State was contained, in the main, in affidavits. (There were some statements by counsel from the Bar Table which I accepted.) No oral evidence was called in support of this application. The Court been asked to resolve many of the factual disputes in this case.

14 I made it plain to the parties in the early part of the hearing of this application that I may have difficulty making findings of fact absent oral evidence being called. The reason for that is self-evident. At one stage there were at least intimations that witnesses would be called to give oral evidence. That never eventuated. I make it plain I do not hold the decision not to call oral evidence against any of the Applicants/Accused. That was their right and it was plainly and obviously a deliberate choice. Each of the Applicants/Accused were represented by highly competent counsel and I have no hesitation in proceeding on the assumption that counsel (and thus their respective clients) well appreciated the consequences of the choice to proceed as they did. That was plainly implicit in some of the submissions. The plain fact is that many of the allegations of fact cried out to be tested in cross-examination.

15 An example of this, but by no means the only instance, concerns the allegations of assault made by the 10th accused Mr Khan following his interception by the authorities. (I use "interception" and "authorities" as words intended to be neutral.) This so even in the case of witnesses who said they saw assaults on Mr Khan who were arguably "independent" witnesses. As will become apparent when I examine the evidence on this specific topic, the weight to be attached to these witnesses rather depends on the quality of their observations. How much could they really see? Over what duration?

16 The source of information in relation to the "independent" witnesses came from statements taken by the police. While these statements taken by the police were produced by the State under their disclosure obligations, I did not proceed upon the basis that they were, in effect, statements against the interest of the State. There is no implied assertion by a prosecuting authority that material it produces is true or reliable. Unless the authority expressly asserted truth or reliability, the material is information in the hands of the defence to make of it what they will via the time-honoured and time-tested modes of establishing reliability.

17 Lest anyone suggest it, this was not a case where it was incumbent upon the State to indicate which witnesses it wanted to cross-examine. For the avoidance of doubt, as this case played out, such a suggestion would have been nothing short of absurd. No one could have been in even the slightest doubt that factual issues were well and truly joined. In many respects the stance of the State was simply: prove the factual basis for your case.

18 Some of the issues of fact are broadly common ground or so obviously unchallenged that I could accept them without going further. Some factual matters I have resolved on what I consider to be a common sense or broad-brush approach. Some matters were assumed to be true for the purpose of the application. (The best example of this was the destruction by Cpl Kuli of certain notes. That was, in part, the very basis of part of the application for the stay.) In other areas, for reasons which will shortly appear, I have had to make findings where there was only affidavit evidence. I have evaluated this on the basis that merely because something was said in an affidavit that it was to be accepted unless directly contradicted by other evidence. Affidavits are not pleadings. Affidavits are evidence and my evaluation of what is said in affidavits was informed by the applicable standard of proof.

Principles of Law

Basic starting point

19 It is common ground that the High Court of Fiji, being a superior court of record, has an inherent jurisdiction to stay proceedings which are determined by the Court to be an abuse of the process of the court. Generally speaking, the circumstances in which this court might consider the imposition of a stay of proceedings are:

The authorities demonstrate that the categories of conduct or set of circumstances (or both) which might justify the imposition of a stay of proceedings are never closed. During the course of this application it was remarked that the facts and circumstances of this case are unique. Nevertheless, the law which governs a stay of proceedings in a criminal case as it applies in Fiji and taken together with the burden and standard of proof which applies is more than adequate to deal with the issues which arise. The explanation for this is that the by its very nature, a stay of proceedings only arises in exceptional or unusual if not unique circumstances and the law as it has developed in Fiji is thus designed to meet such circumstances.

20 It is also common ground that the source of the power of a court such as the High Court of Fiji to make such an order is found within the inherent power of that court to regulate its own process. That process is, of course, devoted to doing justice according to law. The doing of justice through the courts according to the law is one of the critical components of a society which has at its base the rule of law.

21 The concept of a stay of proceedings, by its very nature, might in some respects be seen as inconsistent with the very reason that courts such as the High Court of Fiji exist. Such courts exist to resolve disputes and do justice according to law where that dispute is between one member of the community and another member of the community or between the State and a member of the community. A stay stops that process.

22 In the present case, we are concerned with the jurisdiction of the court being engaged by an information laid before the court to do justice according to law between 10 members of the community and the State in relation to allegations that those 10 members of the community conspired to murder certain persons. The law is that unless there are exceptional circumstances in existence which would justify a stay of proceedings, the community is entitled to expect that the Court will try those accused in accordance with law until a verdict is rendered on that Information. In Connelly v DPP [1964] AC 1254, 1304, Lord Morris observed:

As later authorities show, it is not just the prosecutor and the accused who might be said to have an interest in the case. It is also the community.

23 It is generally recognized that Connelly v DPP (above) is the modern starting point for any analysis of the scope of the inherent power of a court superior jurisdiction such as the High Court of Fiji to stay proceedings as an abuse of the process of that court. The exceptional nature of a stay of proceedings is at least implicit in the observations of Lord Morris quoted above. Each of the speeches of members of the House of Lords in Connelly v DPP (above) made the same point about the exceptional nature of the jurisdiction to stay an otherwise regularly instituted and maintained criminal charge before a court. The exceptional nature of the jurisdiction has been recognised in countless of the decisions of courts of high authority of Fiji and of the balance of the common law world and it is not apposite to mention these in detail at the moment.

24 One of the fundamental consequences of the exercise of this jurisdiction by ordering a stay of otherwise regularly brought and maintained proceedings is that the case is never tried. The person who is said to be the victim never receives his or her day in court. Not a word of evidence is heard in what is almost always an open and public setting of a court in accordance with settled rules of procedure and evidence. The community has an obvious and basic interest in seeing such charges tried. In that regard, the community is deprived of seeing those who are otherwise regularly and properly charged, after a proper hearing, either convicted because the court is sure of their guilt or acquitted and discharged where the court is not sure of the guilt of that person.

25 In the instant case, there might be said to be broader considerations than the interests of those who are alleged by the charges to be the intended victims of the alleged conspiracy. If what is said in the depositions is true then, in at least one sense, the community also has an interest as victim. However these concerns are formulated, they are a critical component of the reasons why a stay of proceedings is an exceptional remedy. The remedy operates in complete contradiction to one of the basic imperatives of the criminal law: that regularly brought charges should be tried in accordance with the law.

26 Nevertheless, in a judicial system devoted to the resolution of disputes by doing justice according to law, that system may have to do justice by ordering a stay of proceedings.

27 In Connelly v DPP (above) at page 1296, Lord Reid held that there must "always be a residual discretion to prevent anything which savours of abuse of process." Lord Morris of Borth-y-Gest held: (page 1301)

28 Lord Hodson (page 1335) described the existence of a power as "undoubted". Lord Devlin would appear to have put the matter more broadly. He held that court had the power subject to statutory rules "to make and enforce the rules or practice in order to ensure that the court process is used fairly and conveniently by both sides". He made the point the rules of evidence and procedure are a reflection of an attempt to do what was fair and just between prosecutors and the accused. Similarly, Lord Pearce (page 1361) considered that every court of justice had an inherent power to protect itself from the abuse of its own procedure. He held that the pleas of autrefois convict and autrefois acquit did not exhaust that jurisdiction. (Page 1362)

29 The facts of Connelly v DPP are reasonably well known. There was no suggestion whatever that Mr Connelly had anything other than a fair trial when he was ordered to be tried on charges of robbery. It is to be recalled that Mr Connelly had allegedly killed someone during the course of that robbery. He had been previously tried for murder in respect of that killing. According to the practice which then operated in England and Wales, a charge of murder was not tried with other charges in respect of the conduct which accompanied the murder. Thus, in Mr Connelly's case he faced a charge of murder and the charge of robbery was not included on the indictment. However, the conviction for murder was quashed on appeal. The prosecution then sought to indict him on a charge of robbery which as a result of the practice that then applied in England had been deliberately left off the indictment. The House of Lords held that the indictment of Mr Connelly for robbery was not, in the circumstances, an abuse of process.

30 It is not necessary in these reasons to recite in full the historical development of the law which in certain circumstances permit criminal proceedings to be stayed as an abuse of process.

31 However, it is right to note certain major developments from 1994 onwards. From at least 1994, courts of high authority have held that a stay might be imposed in essentially two circumstances. The first is where it is demonstrated that the accused cannot have a fair trial. That line of thought falls for consideration in this case and I discuss the principles concerning this later in the judgment. The second group of circumstances is less easy to define - especially if the definition is restricted to one sentence. The second category is essentially concerned with conduct on the part of the executive which has an impact on the criminal proceedings and, which is so outrageous - whether that outrageousness is unlawful conduct or otherwise - that for the court to countenance such behaviour would bring the system of justice in to disrepute.

32 The first major development appears in R v Horseferry Road Magistrates, Ex parte Bennett [1994] 1 AC 42. There, Bennett was unlawfully brought to the United Kingdom as a result of collusion between the South African and British police to faces charges laid in Britain. The police, as a result of their collusion, side-stepped some of the basic protections that an accused has when he is brought from one country to face criminal charges in another country. The protections are included in the process known as extradition. Bennett did not go through that process. He was simply bundled onto an airplane in South Africa. On arrival in the UK, he was arrested and brought before magistrates to be committed for trial. The House of Lords held by a majority of four to one that in those circumstances an English court should refuse to try the defendant. Lord Griffiths held (at p61-62):

In this regard, see also: R v Mullen [2004] 2 Cr App R 290 where it was held that the British authorities, in securing Mullen's deportation from Zimbabwe, had been guilty of a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts, so that when, many years later, this came to light, his conviction fell to be quashed.

33 In Canada, the Supreme Court imposes a high test under this second heading. The Supreme Court held that a stay proceedings should be imposed:

See R v O'Connor [1995] 4 SCR 411, (1996) 130 DLR (4th) 235 at p 277.

34 One area in which the courts have been asked to consider allegedly shocking conduct in cases involving agents provocateur. In Nottingham City Council v Amin [2000] 1 Cr App R 426 Lord Bingham held that it was unobjectionable for a law enforcement officer to provide the opportunity to break the law, an opportunity which the defendant freely takes.

35 In R v Looseley, Attorney-General's Reference (No 3 of 2000) [2001] 1 WLR 2060, the House of Lords dealt with two cases in which, in broad terms, undercover officers obtained drugs from defendants. In each case it was submitted that for the case to proceed would amount to an abuse of process. The question, answered in the affirmative, was whether the English law concerning entrapment was compatible with the European Convention on Human Rights and the guarantee of the right to a fair trial. Lord Nicholls of Birkenhead observed:

36 The real difficulty, consistent with the imperative that a stay of proceedings is an exceptional remedy of last resort was to define what unacceptable entrapment was and what conduct on the part of law enforcement officials was acceptable. Lord Nichols noted:
As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly. Police conduct which brings about, to use the catch-phrase, state-created crime is unacceptable and improper. To prosecute in such circumstances would be an affront to the public conscience, to borrow the language of Lord Steyn in R v Latif [1996] 1 WLR 104, 112.

Later in his speech, Lord Nicholls added:

37 Lord Hoffmann identified the underlying rationale for a stay of proceedings cases and put it at para 40 as follows:

Lord Hoffman made it clear that there is a distinction between active and passive conduct on the part of an informer but that does not always provide the answer. He said:

The observations of Lord Hoffman were recently followed in R v Winter [2007] EWCA Crim 3493.

38 Lord Hutton approved the four factors set out in the dissenting judgment of McHugh J Ridgeway v R (1995) 184 CLR 19, 92 as follows:

39 Perhaps most recently, in Panday v Senior Superintendent Wellington Virgil [2008] UKPC 24, the Privy Council held that the key issue was the restraint of the improper exercise of executive power. The issue in that case was whether the decision by the executive to conduct a re-trial ordered by an appellate court abused the process of the courts. (It is critical to note that while an appellate court might order a re-trial in criminal proceedings, it is open to the prosecution - which is part of the executive arm of government - to proceeding with the re-trial.) The advice of the Privy Council reviewed the authorities and concluded:

40 In considering the issue of entrapment, it was made plain in R v Jones (Ian) [2007] EWCA Crim 1118 that the precise nature and scope of the offence charged is of considerable importance in determining whether a stay of proceedings is justified. In that case, the essence of what was alleged was that the accused was inciting under-age girls to perform indecent acts upon him. Thus when an under-cover police officer pretended to be such a girl, what was critical was the act of incitement and not the officer's response.

Discretionary and exceptional remedy

41. The authorities recognise that the power to impose a stay is discretionary, and that a stay "should only be employed in exceptional circumstances". See: R v Humphrys [1977] 1 AC 1; Barton v R (1980) 147 CLR 75; Moevao v Department of Labour [1980] 1 NZLR 464; R v Derby Crown Court, ex parte Brooks (1985) 80 Cr App R 164; Attorney-General’s Reference (No 1) of 1990) [1992] QB 630; Jago v District Court (NSW) (1989) 168 CLR 23; Tan Soon Gin v Judge Cameron & Anor [1992] 2 AC 205. The power has always been considered a residual one: Connelly v DPP; R v Humphrys [1977] 1 AC 1. That carries with it the obvious implication that only when all else fails or no other remedy is realistically available may the court even consider imposing a stay.

42. The exceptional nature of the remedy was recognised in State v Rokotuiwai [1998] FJHC 196; State v Naitini (aka George Speight) [2001] FJHC 1; State v Buksh & Others [2005] FJHC 432; Sahim v State [2007] FJHC 119; State v Pal [2008] FJCA 13.

43 Before the courts may consider imposing a stay, the law requires that Courts consider other remedies: R v Heston-Francois (1984) Cr App R 209; Attorney-General’s Reference (No 1) of 1990) [1992] QB 630; R v O’Connor [1995] 4 SCR 411, (1996) 130 DLR (4th) 235; R v Taillefer & R v Duguay [2003] 3 SCR 307.

44 The foregoing is not to prohibit the courts from doing justice. Lord Edmund Davis said in R v Humphrys [1977] 1 AC 1, 55E that:

Prejudice to a fair trial

45 Where the fairness of a trial is in jeopardy, there are circumstances in which a stay of proceedings might be granted to protect this right. The right to a fair trial is fundamental. Section 29(1) of the Constitution requires that every person charged with an offence has the right to a fair trial before a court of law.

46 In Attorney-General's Reference No 1 of 1990 [1992] QB 630, Lord Lane CJ held that the power of any court to stay criminal proceedings as an abuse of its process is residual and discretionary. At page 643G Lord Lane said that no stay should be imposed:

47 In Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72, 85, Lord Bingham observed that it is "axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all". Lord Bingham has speaking in the context of Article 6 of the European Convention. That requires that the trial process, viewed as a whole, must be fair.

48 However, the right to a fair trial, as section 29 of the Constitution makes plain, does not exist in a vacuum. Section 29 speaks of the right being enjoyed in a "court of law." That says something about not only the nature of the court but also recognises that such a court will have procedures and remedies for the exercise and safeguarding of that right. A stay of proceedings is one such remedy. It is not, as Attorney-General's Reference No 1 of 1990 clearly recognises, the only remedy or method of securing the right to a fair trial. The conduct of the trial, the application of the rules of evidence and procedure also have a vital role to play in this regard.

49 Another feature of the right to a fair trial not existing in a vacuum was explained by Lord Steyn in Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91, 118. There, he held that:

This, in my judgment, provides a vital understanding of why a stay of proceedings is a residuary, discretionary and exceptional remedy. Thus the injunction in the authorities cited above is look for other means of ensuring a fair trial before taking the step of, in effect, terminating the trial.

50 These are only general remarks about the right to a fair trial. In the course of this judgment I have to return to the content of this right in the context of allegations of deliberate destruction of evidence and the conduct of the investigation generally. There is the further over-arching ground that the conduct of the military, taken as a whole is such that no fair trial can be had.

The seriousness of the charges

51 The charges are very serious. The maximum penalty provided on conviction is life imprisonment. If it was found to be proved after a trial, an agreement to murder any human being would be bad enough. It is at least arguable that an agreement to murder three of the principal officials of the interim government of Fiji given, if proved on the evidence, that the object was to destabilise the country would be all the more serious. However, it is not necessary to speculate about that that: on any view these are serious charges.

52 The fact that the charges are serious ones is a relevant consideration in determining whether or not to stay a prosecution. However, it is possible to overstate the impact of the seriousness of the charges as a relevant consideration. The point was made by Lord Hoffmann in Attorney General's Reference No 3 of 2000, R v Looseley [2001] 1 WLR 2060, [2001] UKHL 53.

53 In another context, I have tried to make the point that one of the rationales behind the exceptional nature of this remedy is the public interest in having the charges and the evidence aired in open court. While I do not think it right to overstate this, I proceed on the basis that this is at least as important as ordinary cases and may to a degree be more important in this case. I have tried to keep this issue in its proper place. The seriousness of the charge is relevant in determining whether or not to grant a stay. The degree of relevance critically depends on the extent to which there has been misconduct on the part of the executive which has an impact on the charges brought before the court. On the other hand, I take the view that whether or not the charge can be viewed as a serious one is not critically relevant when determining whether or not to grant a stay where the basis for that stay is that no fair trial of the charges can be held.

Pre-trial publicity

54 Mr Khan asserts that pre-trial publicity in relation to him has been such as to require a stay of proceedings. The contention is upon two bases:

55 Kalpana Arjun is the news archivist at the Fiji television station and has provided an affidavit sworn on 2 July 2008. The affidavit produces selected transcripts and video footage published by the Fiji television station. While I do not think that any issue could be taken as to the accuracy of the copying of the material from Fiji television, nothing can be said from this material about the sources of information of the journalists, whether those sources were accurate and who prepared or presented these reports. I know nothing of whether these reports were fair or balanced. I have proceeded upon the basis that this is what was seen and heard on Fiji television in the news programmes for the relevant date mentioned in the transcripts. Nevertheless, it requires little imagination to accept that these matters were reported as fact and may have been accepted by some of the viewers of these reports as fact.

56 In relation to the broadcast material, it became obvious during the hearing of the application for the stay that the transcripts didn’t always match very well with the words spoken. I have largely ignored the transcripts.

57 The first part of the material describes part of the build-up of events prior to the assumption of executive power by Commodore Bainimarama in late 2006 and the formation of the interim administration.

58 The material then moves to a report on December 11, 2006 that a property said to belong to Mr Khan was raided by soldiers on that day. The following day, Fiji television news reported that Mr Khan had gone into hiding but was requesting a meeting with the military commander. The report asserts that Mr Khan owns Pacific Connex. In this report it is said that Pacific Connex is in some form of partnership with the NLTB's then commercial arm known as Vanua Development. The report also describes that the military demanded that the NLTB sells its commercial arm. The report to which reference has already been made appears to be the first suggestion on Fiji television that there was any connection between allegations of corrupt practices and Mr Khan.

59 The television footage also covers comments on the position of Mr Khan as events develop after the arrest of Mr Khan and the other accused. There are comments from law enforcement officials including the Commissioner of Police.

60 There are comments from Mr Khan's lawyers as Mr Khan's hospitalization continues.

61 The presentation of the video news footage concluded with extensive coverage of what was the first appearance of Mr Khan before a Magistrate following his being charged with the offence which he now faces.

62 The newspaper coverage essentially covers the same ground. I read this coverage with the same qualifications as were mentioned in relation to the television footage. While many of the matters mentioned therein appear to be essentially uncontroversial, the coverage is not evidence of the facts asserted or even that the persons who are said to have made the comments actually made them.

63 Some of the material asserts that the military have a degree of animosity towards the accused. The basis for that might be said to vary according the position of the individual. There are descriptions of raids on premises either owned or connected with Mr Khan.

64 The Fiji Sun on 25 October 2006, displays the headline "Army warns millionaire" with the sub-headline "if there's any trouble, we'll come for you first". The lead paragraph of the article says that the army has warned a millionaire businessman over his involvement with Counter Revolutionary Warfare unit soldiers. (Although there is no direct evidence of this fact, a working assumption of my evaluation of the evidence in this case is that the CRW unit was a highly trained and elite band of soldiers. It is common ground that some of the members of that unit mutinied in 2000. They were tried and convicted on that basis and served substantial periods in custody.) The article quotes Colonel Driti who is reported as saying:

65 Plainly, on the assumption that on this article accurately reports the matters I have just mentioned, some degree of animosity can be demonstrated from this article. The article also has to be seen in the context of the culmination of an exchange of correspondence between a person who is apparently an employee of Mr Khan and the military. I will deal with this in another context.

66 On 9 December 2006, shortly after the takeover of the government by the military, the Fiji Times reported a raid on the business premises of Mr Khan - Pacific Connex. The lawfulness of this raid is a matter which will be considered elsewhere. Also of significance in this context is that the author of the report asserts that the military was acting on information that several former CRW Unit soldiers were employed as guards at the office. Implicit in this particular part of the report is that this was the cause of the raid.

67 Another significant source of information about the raid comes from the affidavit of Mr Khan. Whatever else might be said, Mr Khan's affidavit was plainly hearsay as to this topic - he was outside Fiji at the time.

68 There is also a report that attributes to Commodore Bainimarama words to the effect the Mr Khan was faking his injuries post-arrest. This is said by Mr Khan to be untrue. I will have something to say about the issue of injuries to Mr Khan in another context. This was said to be deliberately calculated to undermine the position of Mr Khan. There is no evidence that the Commodore said these words. There is no evidence of his intent if he did say them. This component of the accusation of malice directed to Mr Khan on the part of the military fails for those reasons. I will shortly consider this report on the basis of whether or not the report is accurate there are those who might be assessors who may have seen it and consider it to be true.

69 A report attributed to the Commissioner of Police has him saying that guns and ammunition were found in Mr Khan's custody (custody in the broad sense) after his arrest. It appears to be uncontroversial that no guns were found when most of the accused were intercepted. I decline to assume that the Commissioner was accurately reported and therefore as a component of the accused's case alleging directed malice by the military, this aspect fails. I consider the prejudice to the possible panel of assessors separately.

70 The final piece of reportage upon which reliance is placed as a directed malice issue is substantially more recent. This concerned the interception of an escapee. It was reported that the police said that he was suspected to be involved in the conduct the subject of these charges. That is said to be untrue. It may well is untrue. The police directly challenge the assertion attributed to them. However what is compelling is how utterly innocuous it is. It does not begin to support a case of directed malice. It could have no conceivable adverse effect on the fair-mindedness of possible assessors.

71 The principles which guide the approach of the courts to a claim that proceedings should be stayed on the basis of prejudicial publicity are well-established. The accused must show on the balance of probabilities that there was a serious risk that a future jury may be so tainted by prejudice as a result of grossly adverse and unfair publicity that a fair trial is probably not possible: Irvin v Dowd (1961) 366 US 717, 722; R v Kray [1970] 1 QB 125, (1969) 53 Cr App R 412; Murphy v Florida (1975) 421 US 794, 800; Murphy v R (1989) 167 CLR 95; R v Glennon (1992) 173 CLR 592; HKSAR v Yip Kai-foon [1999] 1 HKLRD 277. There must be more than the prospect that potential jurors know something of the case the subject of the charges. It is unnecessary and unrealistic to require total ignorance by jurors of the facts or circumstances of the case for such would be to require an impossible standard: Irvin v Dowd (1961) 366 US 717, 722; R v Yuill (1993) 69 A Crim R 450; R v Glennon (1992) 173 CLR 592, 603, 60 A Crim R 18, 25; R v Simpson (1999) 106 A Crim R 590; HKSAR v Lee Ming-tee & Another [2001] 1 HKLRD 599, 4 HKCFAR 133; R v Dudko (2002) 132 A Crim R 371. In R v Simpson (1999) 106 A Crim R 590, 595 Doyle CJ urged courts to take a realistic approach to this issue and observed:

Criminal justice is always administered in the public gaze. There is considerable public interest in the administration of criminal justice. Judges are mindful of the fact that the print medium, radio and television regularly feature items relating to particular cases, to the administration of criminal justice generally, and to crime in the community. All sorts of information and attitudes are communicated in this manner. It is pointless and impossible to attempt to isolate a jury from this material. Indeed, it would seem counterproductive to do so, because the jury is drawn from the community and should represent the community. Jurors come to their task with information and attitudes about crime and criminal justice that are influenced by the sources to which I have referred, and the administration of criminal justice must accommodate that fact. It is at that point that the assessment by the trial judge of the impact on a jury of the relevant prejudicial material becomes critical, as does the trial judge’s assessment of his or her ability to deal with the situation by directions to the jury, and the trial judge’s assessment of the ability of the jury to put the prejudicial material out of their minds. There is nothing new in this, but I make these points because it is important that the courts take a realistic approach to claims that a fair trial has become impossible because of prejudicial publicity, but at the same time not lose sight of the importance of securing a fair trial to the extent that a court can.

72 However, as was observed in HKSAR v Yip Kai-foon, it would be wrong to require the accused to establish actual bias on the part of a future jury or panel of assessors. It is sufficient if the individual juror or assessor can lay aside his impression or opinion and render a verdict based on the evidence presented in court: Spies v Illinois 123 US 131; Holt v United States 218 US 245; Reynolds v United States 98 US 145; R v Hubbert (1975) 29 CCC (2d) 279, 291; Murphy v R (1989) 167 CLR 94, 98; R v Von Einem (No 1) (1991) 52 A Crim R 373, 386; Boodram v A-G of Trinidad & Tobago [1996] 2 WLR 402, 2 LRC 196.

72 In that regard, the court proceeds from an assumption that jurors can and will obey directions from the trial judge in this respect: R v Kray [1970] 1 QB 125, (1969) 53 Cr App R 412, 414; Hinch v A-G (Victoria) (1987) 164 CLR 15; R v Glennon (1992) 173 CLR 592, 603, 60 A Crim R 18, 25; R v Yuill (1993) 69 A Crim R 450, 453; R v West [1996] 2 Cr App R 374, 386; R v Simpson (1999) 106 A Crim R 590, 595; R v Richards & Bijkerk (1999) 107 A Crim R 318; Gilbert v R (2000) 201 CLR 414, 109 A Crim R 580; R v Sheikh (2004) 144 A Crim R 124. In this regard, in Hinch v A-G (Victoria) at page 74, Toohey J expressed the view that in the past courts have given too little weight to the capacity of jurors to assess critically what they see and hear and their ability to render a decision on the evidence before them. The same point was made in HKSAR v Lee Ming-tee & Another [2001] 1 HKLRD 599, 4 HKCFAR 133. In this regard, Ribiero PJ endorsed what was said in Montgomery v HM Lord Advocate (unreported, 19 October 2000) as follows:

In R v Murdoch & Others (1987) 37 A Crim R 118, 124 that faith in jurors was expressed by Street CJ as follows:

73 By contrast, in R v Taylor & Taylor (1994) 98 Cr App R 361, the English Court of Appeal decided to set aside a conviction and refused to order a re-trial in a case because the publicity during the trial had been ‘unremitting, extensive, sensational, inaccurate’. The Court of Appeal indicated that it was satisfied that the publicity caused a ‘real risk of prejudice’ against the accused.

74 In my view, the fact that any trial of the accused in the instant case will be before assessors does not alter the position at all. What is quoted in the context of jurors applies with equal force to assessors.

75 The material which, if true, or if the assessors thought it was true, might support the conclusion that there is a degree of animosity on the part of the military toward the accused or that the military individually or collectively hold a low opinion of Mr Khan and certain others of the accused has little, if any, potential to prejudice a fair trial. Even if it did, there is nothing in the material that I have seen and read which could not be cured by direction to the assessors. Indeed, most of it is so long ago that I would not consider that a direction other than the standard "forget about what you have heard outside the court" direction might revive what little prejudice there is.

76 Assuming they were accurately reported, some of the comments attributed to the Commissioner of Police and others connected with the detection or interception of the accused are what might be called ham fisted. Bearing in mind the standard of proof, as I have already indicated, I am not satisfied that they were made, let alone made in attempt to prejudice the accused. Even if they were deliberately made for this purpose, they were, in my judgment, singularly mild comments which could not have achieved their purpose even had any trial of this matter been held shortly after they were made. Even if these comments were deliberate they do not even begin to approach the level of misconduct which would justify a stay on what I will call the second limb of the principles discussed above. The same can be said of the accusation that Mr Khan was faking his injuries. I have no doubt that such miniscule prejudice as may conceivably arise by reason of this report could be cured by direction.

77 Even if there was the slightest force in the contentions of the accused in this regard, it is right to mark that, with one exception, the relevant publicity was many months ago and any sting that there might have been in it will have dissipated by now. That exception does not come into play for the reasons I have already adverted to.

78 In my judgment, none of the material, whether taken individually or cumulatively could justify a stay either on the basis that a fair trial is put in jeopardy or because the conduct amounted to directed malice on the part of the authorities which was such as to require a stay.

Conduct which shocks the conscience

Introduction

79 The accused contend that there are a number of strands to this. They are:

It was contended that these individual items were, taken together, clear evidence of a determined campaign of malice against many of the accused. Counsel for Mr Khan went as far as to say that the military was bent on ruining his client and at one stage in his submissions, in connection with the alleged assaults on his client shortly after arrest, submitted that the military were out to kill or at least seriously injure his client. It is said that this directed malice by the military was such that nothing produced in court by the military could be trusted and that the giving of evidence by the proposed witnesses from the military was the culmination of that campaign. While it does not seem to be said that the Director of Public Prosecutions or his prosecutors are party to the conduct, what it amounts to, so say counsel for Mr Khan and the CRW accused, there is a determined conspiracy to pervert the course of public justice by the military to be executed through the proposed military witnesses.

80 I have already dealt with the publicity aspect. I will not repeat my views on the impact (or, more accurately, the almost total lack of impact) of that.

Pre-trial harassment by the military

81 The essence of the case for the accused in this regard is that members of the former CRW unit were taken to military installations either against their will or alternatively having accepted invitations to go to such an installation, and were detained there against their will. During the course of the conduct in connection with this, these persons were harassed and threatened. On any view, if the assertions of fact are true they make out crimes of assault, kidnapping or various forms of unlawful detention. The case for the State in regard to this is that this is simply untrue. That there was contact between the military and the former members of the CRW unit is not denied. It is not denied that this contact was deliberate and to make sure the former members of the CRW unit knew that they were being watched the military.

82 Mr Khan suggests that this prejudicial conduct has a long history and points in his affidavit to an incident where Mr Khan employed a driver who was formerly in the military, which event was followed by the demotion of a relative of the driver. It is said that this was directed against Mr Khan. In a world where all things are possible, that has to be possible. However, in this case the court can only deal with facts which are established to the civil standard. The assertion in this regard made by Mr Khan is not established to that standard. I do not question is that Mr Khan believes this assertion. Quite simply, that the underlying factual foundation for it is not established to the required standard of proof.

83 Further, it is the case for Mr Khan that the military "raided" the private and business premises of Mr Khan. The allegation is that, in effect, the military shut down Mr Khan's business. In relation to the allegation in relation to the raid on Pacific Connex premises in December 2006, I have already made a series of observations about this raid in the context of the coverage of it in the media. Lieutenant Savenaca Siwatibau Rabuka in an affidavit sworn on 11 July 2008, seems to confirm the raid. No mention of a warrant is included. He says: "We proceeded to Clarke Street and we were instructed to take all the computers to be checked by our IT Personnel and to be returned later." No justification appears to be offered for the seizure of the computers. It is not plain whether the "IT Personnel" did examine them at what if anything was found. There is evidence that the computers were returned. I have broadly made the point that if one simply looks at the media reports themselves (recalling all the qualifications necessary when evaluating these) the primary target seems to have been not so much Mr Khan but the members of the CRW unit employed by Mr Khan. If Lieutenant Rabuka's affidavit is true this seems to contrast with the theory in the media that the prime focus of the raid was related to the CRW personnel. That this raid was directed at diminishing the standing of Mr Khan in the eyes of the Fijian community or damaging Mr Khan's business interests is not established to the relevant standard required by the law. It seems to me that while Mr Khan genuinely believes that this was the intention of the military, the sincerity of his beliefs cannot be used as a substitute for evidence.

84 The raid may well be unlawful. No warrant was produced although there are circumstances in which a search might be made without a warrant - however, none of the facts necessary to ground this were established. Privacy might have been invaded but whether it was corporate or personal was never examined in argument before me. This was said by counsel for the accused to be simply another example of unconstitutional conduct. I am content to proceed on the basis that it was despite the paucity of focussed evidence on the topic. I can say one thing with certainty. This raid, whatever, the possible level of outrageousness or illegality, does not of itself justify a stay of the present charges.

85 It is undoubtedly true that the members of the CRW unit who were tried and convicted of offences in connection with mutiny had, by the time of the events the subject of this application for stay of proceedings expiated their penal liability to the community for that mutiny. However, the idea that simply because these people had "done their time" meant that they were entitled to implicit trust - or something like it - is naive. Both before and after the events of early December 2006, it would appear that at least some elements of the military viewed this group with continuing anxiety and suspicion. Some flavour of this comes from the affidavit of Colonel Jone Kalouniwai, sworn on 11 July 2008. While his suggestion that each CRW man was worth 4 ordinary soldiers is something I take with a grain of salt, the concerns are clearly set out in his affidavit. So too do we get the same flavour in Colonel Driti's affidavit sworn on 10 July 2008. It is hardly surprising to think that such military officers might view the employment of a significant group of former members of the CRW unit in one team as security personnel as reinforcing or justifying that concern or suspicion. It must not be forgotten that mutiny, either as a civilian or military crime is not just a crime. It is behaviour which is the utter opposite of how a soldier or other member of the disciplined services is expected to behave.

86 Further, at least from the perspective of the military who viewed former members of the CRW unit with anxiety or suspicion, it is hardly surprising that they could regard the employer of those persons with equal if not greater anxiety or suspicion. It would largely depend on how and in what circumstances the members of the unit were employed. Here, they appear to have been employed for what were characterised as security purposes. They do not appear to have been employed by a security company and that security company retained to provide security. It is not very clear on the evidence who, in law, their employer was. It is not clear upon what basis they were paid, their hours of duty, and their precise responsibilities.

87 The giving of assistance to released and unemployed prisoners by way of employment is, on its face, a laudable endeavour. The desire to so assist is expressed by Mr Khan in his affidavit. However, I have some difficulty with accepting the assertion of Mr Khan that he merely employed these people because they deserved a chance and that they were employed solely or principally out of some generous notion of rehabilitation. Mr Khan's employee who wrote to the military setting out the position of Mr Khan really adds nothing to this. In order to employ the members of the CRW unit, Mr Khan actually dispensed with a security company which had previously been retained. Whether the people in that company lost their jobs is something I cannot make findings about. Their jobs may well have been at risk.

88 Further, on a view most favourable to the accused, the affidavit material suggest that Mr Khan did not know about the identity of the CRW people until after they had been retained. I confess to a high degree of scepticism about Mr Khan (affidavit paragraph 26) "subsequently" discovering their history. Nevertheless it must have been blindingly obvious to him that if he persisted in retaining their services that this would be viewed with disfavour if not outright hostility by the military. It is undoubtedly true that it is not for the military to regulate who ordinary members of the Fijian community employ. So much is obvious. However, a businessman with the skills and intelligence of Mr Khan must have realised that the continuing retention of the CRW people as his "security" was like a red rag to a bull.

89 The affidavit of Mr Khan details bases for believing that the military were less than happy with Mr Khan's business activities as early as 2004 and an example is detailed in paragraph 30. I regard that as an unacceptable combination of hearsay and speculation. There is no admissible evidence to support it. I place no weight on that incident.

90 Mr Khan detailed how he was invited/summoned to see Colonel Driti. There is no evidence of any compulsion. If there was compulsion it was nothing other than moral compulsion. There is a conflict over what was said at the meeting. In affidavit against affidavit, I cannot resolve this save to say that any words by the Colonel may well reflect the true position. The Colonel is silent as to the accuracy of the item in the Fiji Sun exhibited in BK1. It may be that the precise words do not matter greatly. It seems that Mr Khan could not have been left in any doubt what the military's position was. It has to be remembered that at about the time of this meeting, tensions were escalating in Fiji as between the then government and the military. While it is clear that Colonel Driti was making it plain that Mr Khan and his CRW employees were viewed unfavourably, and it was far from a friendly or social chat I am not prepared to infer malice of the kind contended for by the accused.

91 The next issue is the proposed abolition by the interim government of Vanua Development Co. This is said to be a direct attack on Mr Khan's company. There is no evidence before me as to the reasons for this proposal. They could have been good or bad reasons. There is insufficient material for me to view this as another malicious attack on Mr Khan and his company.

92 I should note at this stage that I was told My Mr Leung, junior counsel for Mr Khan, that Mr Khan was a director and the CEO of Pacific Connex. He told me from the Bar Table that this company is a private company. However, Mr. Leung said that Mr Khan was not a shareholder of the company. Of course I accept what Mr Leung says. It places in clear relief the overall assertions of Mr Khan in his affidavit about interfering with "his" business. That does not diminish his substantial connection with Pacific Connex by reason of being CEO and director.

93 I have already referred to the raid on Pacific Connex. As events unfolded this was next in time.

94 Mr Khan (affidavit paragraph 39) says that the military were ever present when he went on holiday over the Christmas break for 2006/2007. He says that his boats were tampered with. How, why and who did that is not part of the evidence. I cannot infer that this was a malicious attack by the military on Mr Khan and the other accused who were former members of the CRW unit.

95 It is argued that the intelligence about Mr Khan and some of the other accused coming to Suva on 3 November 2007 was deliberately false or trumped up. In support of that argument is the contention that there were women and children in the convoy. It was argued that there must have been surveillance along the way and it would have been plain from the number of women and children - who were unmistakably such - that this was no assault on the interim government and that no one could have possibly thought so.

96 The first difficulty I have in accepting this as a ground for imposing a permanent stay is connected with the burden and standard of proof. The evidence I have heard from the accused in this regard does not begin to satisfy me to the relevant standard of proof. Second, I do not accept that in any event there is sufficient nexus between the alleged misconduct and the charges facing the accused. The imposition of a stay of proceedings upon the basis of a series of wrongs which occurred in these circumstances do not have sufficient connection to the proceedings which are said to be an abuse of process.

97 It might be argued that this evidence demonstrated the utter hostility and bias towards the accused held by the military and that given the principal witnesses for the State are military officers when they would be prepared to stop at nothing to secure convictions of their enemies. That, it seems to me, is eminently a matter for determination at trial. If a witness is biased by reason of personal bias or what I might call for shorthand for present purposes institutional bias, then that is a matter that can be the subject of cross-examination and, it must be remembered, is one of the recognized exceptions to the collateral evidence rule which ordinarily prohibits answers given in cross-examination going to credit being contradicted by other evidence. I have no doubt that the tribunal of fact in any trial of these accused would be well able to determine where the truth lies in such a case.

98 The accused who have the common history of being members of the CRW unit say they were taken to military camps from time to time and questioned and detained. Further Mr Khan prays this in aid as evidence of the harassment of him by the military detaining his staff. This is said by Mr Khan to provide further evidence of the malice directed at him by the military. This is said by the other accused of directed malice against them.

99 I reject the contentions in this regard with respect to Mr Khan. There is simply no evidence that satisfies me this conduct was directed at him. It would not, in any event, have provided a basis for a stay of proceedings.

100 As to the other accused - those with the CRW connection - the principal difficulty that they face is an evidential difficulty. With one exception (or, possibly, two), there is no evidence other than the assertions in their affidavits to support their contentions. The assertions are generalised.

101 One of the complaints in this regard is non-disclosure. It is said that the military have not disclosed detention records. However, this argument is essentially circular and depends on the Court accepting as true the affidavits to which I have referred. On one of the dates notified to the authorities, there is one record that has been turned up by the State which suggests detention. On the evidence, this seems to provide a basis for inferring that had the other dates suggested in affidavits been dates on which detention occurred, there would be a record. It strikes me as significant that one record has been disclosed. The military could have easily folded its arms and disclosed nothing. The accused have not established that there has been non-disclosure in respect of military records. That does not end the discussion. It may be they got they dates on which they were detained wrong. It may be the detention was not recorded.

102 I conclude there were times when some or all of the accused with the CRW connection were at military barracks from time to time. With one clear exception, whether that was detention which was unlawful is not something I am prepared to find. I have little doubt that these accused were either summoned or brought to military barracks from time to time. In the circumstances there is likely to have been a campaign on the part of the military to get into the faces of these accused. In the developing and unfolding events of 2006 and 2007 that is, frankly, hardly surprising. Whether it amounted to harassment is not something I am in a position to determine. Whether it was unlawful - with one exception - I cannot determine in their favour because I am not satisfied that it is more probable than not that it was. Subject to one event, these accused have not made out a case of unlawful detention.

103 There is one record from the military of an event of detention. It says that those concerned were detained. Despite the ingenious arguments of the State, "detained" on the record could only have one meaning. I think the accused named in that record were probably unlawfully detained. No justification was offered for the detention. Such a detention is unacceptable. It violates constitutional rights. What I am not prepared to conclude is that it justifies a stay of proceedings. It is open to those involved to seek redress. Civil remedies are open to them. The detention, while not technical or trivial, was hardly prolonged.

104 Lieutenant Colonel Tevita Uluilakeba Mara of the Republic of Fiji Military Forces in an affidavit dated 11 July 2008, deposes to an incident on 6 December 2006 in which Mr Gadekiuba and Mr Namulo were "picked up" and brought to the Queen Elizabeth Barracks. They were spoken to. Lieutenant Colonel Mara said were asked about their involvement concerning the information of the assassination plot, which they both denied. Lieutenant Colonel Mara deposed that he said, "I hope you are not involved in the assassination plan". It is the use of "picked up" that interests me in this context. That could have been an unlawful arrest or detention. It might not have been. There is no evidence as to duration.

105 Further, in Colonel Jone Kalouniwai's affidavit, he speaks of ordering the release of certain unnamed CRW soldiers on an unspecified day from military barracks. Release may be seen to connect with the notion of detention. This is so vague that I cannot take much account of it except to say that someone might have been unlawfully detains for some unspecified duration.

106 What remains to be considered is whether these contacts (I am trying to use a neutral term) between the CRW accused and the military demonstrate malice of the kind on the part of the military of such a degree that a stay of proceedings is justified.

Entrapment

107 It is said that Cpl Kuli acted as an agent provocateur in his dealings with the accused at various meetings. Further, Major Narawa is said to have exacerbated this by giving to Cpl Kuli a list of items that Cpl Kuli might suggest as modes of carrying out the plot. (The list has now been destroyed.) On the list were assassination by sniper rifle, poisoning and crashing into the car carrying Commodore Bainimarama. It is argued that each of these items, when viewed either individually or collectively amount to conduct so grave as to come within the conduct which would be susceptible to a stay under the principles enunciated in Loosely (above).

108 The first issue that must be dealt with is the factual underpinning of this part of the argument. The main complaint concerns something said to be said by Cpl Kuli (see his first statement). In a discussion with the 1st accused, Ratu Inoke Takiveikata, Cpl Kuli deposed that he said words to the effect that the interim government and the Commodore Bainimarama would have to be removed. The statement was in English.

109 The immediate problem with this is that the statement does not support the conclusion that Cpl Kuli was advocating removal by unlawful means let alone though homicide. Nowhere in the rest of his statement does he incite or cajole the others to conspire to murder. In the statement, he plainly goes along with what was suggested. That was part of his "cover" or "role" of pretending to be a sympathetic and disaffected military officer. In my view, this does not amount to state-created crime.

110 The second problem is that it appears that the position of the accused is that they were not at any stage part of the conspiracy. On what may be a worst case scenario they wanted to wait and see what Cpl Kuli and his team were up to. In short, on this argument the State created no crime.

111 Further, it was argued that placing the "insider" into this group of people shows the determination of the "military" to injure the interests of some or all of the accused. In a world where all things are possible: this is possible. There is no evidence for this. There is certainly nothing which makes it more probable than not.

112 I have also to consider Major Narawa's list to which reference has been already made. It seems to me that this was simply a piece of script writing by the Major to assist Cpl Kuli. The sense I get is that this was on the basis that the conspiracy to murder had already been formed and this was simply a discussion of the means that could be employed. Counsel for Mr Khan was driven to argue that this was reprehensible and dangerous conduct on the part of the Major.

113 As I have already indicated, the primary position of the accused was that they were in no way part of this conspiracy. If so, the list would have been meaningless if the effect of it had been communicated to them. If there was already a conspiracy to murder between the accused, then given the contents of the list and perhaps the background and experience of at least the CRW component of the conspirators, it would be absurd to suggest that these modes of carrying out the conspiracy would not have been within the contemplation of the accused. On no account could this item of evidence be considered to be an attempt to incite the accused to commit crime. This component of the case fails.

The military knew better (or knew more)

114 As I have already noted in a different context, it is contended that the police and the military must have known that the convoy in which most of the accused were travelling on 3 November 2007 was not one bent on assassination and a possible coup d'état. It is contended by the accused that given the number of women and children and the festivities of the previous night and the "fact" that the members of the convoy must have been under surveillance that the forceful interception by the police and military at the police post is yet further evidence of bad faith on the part of the military. It was contended that the police or military surveillance must have known that no weapons were loaded into the vehicles in the convoy. It is further contended that the fact that no arms were found puts the seal on the validity of this contention.

115 On the assumption that Major Narawa is to be accepted, it is fairly clear that the authorities believed that the conspiracy existed and that the execution of the conspiracy was imminent by 3 November when these accused were intercepted. On that hypothesis, there must have been a growing anxiety on the part of at least the military about what may happen and when. It appears that no weapons were found in the convoy. Were the military wrong? It is possible. It is possible this was not the time for the execution of the conspiracy. It is possible that the arms were not actually coming in this convoy but it was intended to collect them elsewhere. It is possible the military got the date wrong and they intervened too quickly. It is also possible there never was a plot. The State argued that - possibly invoking images of Saddam Hussein - that the women and children might have been a human shield or, on a less sinister view, possibly simply a distraction. There are a multitude of other possibilities.

116 Each of these possibilities invokes a degree of speculation. The case for the accused requires the Court to speculate as to the nature and scope of surveillance and, to the extent there was surveillance, the effectiveness of such surveillance. In the absence of evidence I am not prepared to conclude that such was the state of knowledge that the military knew what was going on and, more importantly what was NOT going on ie this was an innocent convoy to Suva. Still less am I prepared to speculate that this indicates bad faith on the part of the authorities. This argument fails.

Assaults on and mistreatment of Mr Khan post interception

117 The next item for consideration is the alleged assault on Mr Khan at the time he was intercepted on the way to Suva at Delainavesi Police Post.

118 It is not necessary to recite in detail the competing allegations. It is sufficient to say that Mr Khan says that from the time he and the convoy in which he was travelling was intercepted, he was severely beaten. At one stage, counsel for Mr Khan described the assault on his client as a murderous attack or attempted murder. Making full allowance for some elements of rhetoric in those submissions, if the version deposed to by Mr Khan is to be accepted, this is not far wide of the mark.

119 The position of Mr Khan was supported by a variety of other affidavits from, amongst others, his partner and others in the convoy.

120 The position of the State is that while force was applied to Mr Khan, affidavits tendered on behalf of the prosecution described Mr Khan as resisting arrest. On that basis, of course, reasonable force may be used to effect an arrest. I must say that the affidavits tendered by the State are not the most explicit. See, for example, the affidavit of Warrant Officer Tevita Teu Korovou, sworn on 11 July 2008 where he said:

This does not describe much in the way of resistance. He does say Mr Gadekiuba punched an officer, but not much more than that. There are other affidavits which speak of "not seeing" violence.

121 Police statements were shown to me from persons who were said to be independent. There were two of these. Both of the statements describe assaults on a person who must in the circumstances, have been Mr Khan. It is not insignificant that one describes, by many orders of magnitude, a far more intense assault than the other one. It was not suggested by the State that the statements were not genuine. What was suggested is the accuracy and reliability of what they said they saw was not something which could be assessed on paper.

122 There are, of course, medical reports in relation to Mr Khan. These describe his condition at various times after interception. It is not without relevance to note that Mr Khan was in hospital for a considerable period. While I claim no medical expertise, it is very clear to me that if the version propounded by Mr Khan was true to the full extent of what appears in his affidavit then either the doctors who prepared these reports were singularly poor observers of the condition of Mr Khan or alternatively there is, to put it at its lowest, some element of exaggeration in the account given by Mr Khan and, to a lesser extent, those who were also in his convoy. Further, that same point can be made by reference to the description of one of the possibly independent witnesses.

123 It is also to be noted that one of the newspaper reports exhibited to the affidavit of Mr Khan attributes to his then lawyer a remark, apparently made shortly after visiting his client in hospital, which might be said to be inconsistent with the level of assault claimed by Mr Khan. I cannot place any weight on this because there is no evidence that the lawyer was accurately reported (assuming he made a statement that all).

124 Further, I suspect that the lawyer in question has no greater medical qualifications than I do and what he observed is probably not of utterly compelling weight. Nothing in what I have just said in any way impugned is the honesty of that lawyer. Of course, that lawyer was Mr Fa who by the time of these proceedings was appearing for the 6th accused, Metuisela Mua. I permitted Mr Fa to make a statement from the bar table in relation to issues concerning his ability to have a confidential professional conversation at the hospital with Mr Khan who then his client. Nothing was said by Mr Fa about the condition of Mr Khan during that statement and he was not asked. He did not give an affidavit as to his observations as to the condition of Mr Khan.

125 What really happened? If Mr Khan was assaulted to the extent he described that would be nothing short of outrageous. As I say, counsel for Mr Khan elevated the assault to the level of murderous. If ever there was an element of this case which cried out for oral evidence and for witnesses to be examined, cross-examined and re-examined this had to be that element. I am not prepared to simply say, as was (at least) hinted in counsel's submissions on behalf of Mr Khan, that, in effect, the affidavits from his side and the affidavits from the other side cancel each other out and the independent observers win. (For the avoidance of doubt, the submission on behalf of Mr Khan was put in a far more elegant and cogent fashion than this.)

126 Even if the affidavits from both sides might be said to have cancelled each other out there were a multitude of questions about not just what was seen but the ability of the giver of the statement to see what they said that they saw. I am not questioning the veracity of the statement giver. That may have arisen for consideration had there been oral evidence. What I was more concerned about was the accuracy and reliability of some aspects of what they said they saw compared, for example, to what one sees in the medical reports as to Mr Khan's injuries.

127 In the end, after very careful thought in relation to this matter, I strongly suspect that Mr Khan was assaulted by some of the police or military or both at the point of interception and following that point. I strongly suspect that the assault exceeded the degree of force which would have been appropriate to bring Mr Khan under control. Such a degree of force would, of course, have been unjustified. On the state of evidence as it was left with me, beyond that, I do not think that that I could go any further. Accordingly, applying the standard of proof appropriate in an application for a stay of proceedings, the case for Mr Khan is not established.

128 Accordingly, I cannot and do not take this aspect of the case into account in determining whether the conduct of the authorities justified a stay of proceedings either by itself or in combination with other factors to which I have or will shortly refer. I must add: no one could walk away from this specific element of the case and say that their position was vindicated. All walk away from the case knowing that all I can say is that this element was not proved to the required standard on the evidence the parties chose to place before me.

129 Further, Mr Khan complains that the police stood by and did nothing to intervene in the assault contrary to their duties at common law and pursuant to statute to prevent crime. The position of the police would appear to be that any assaults that took place were in the course of trying to bring Mr Khan under control. The validity of this complaint on behalf of Mr Khan stands or falls with the other matters concerning the arrest. Connected with this complaint is the complaint that the police failed to investigate the assaults said to be perpetrated on Mr Khan at the police post. The lawyers for Mr Khan wrote on 7 February 2008 demanding an investigation and indicated that Mr Khan was willing to assist in the investigation. I infer that Mr Khan and his lawyers were not overwhelmed with a response. Nevertheless, the State did disclose to statements in connection with these events to which earlier reference has been made. These complaints do not take the matter very much further in determining how to resolve the issue of whether or not to impose a stay of proceedings.

Unlawful detention

130 Mr Khan complains that he was unlawfully detained by the authorities after interception at the police post. He was taken to a police station and following that to two hospitals: Colonial War Memorial Hospital and Suva Private Hospital. In essence, the situation may be summarised: thus:

Arrest	3/11/07
Detention Central Police Station, Suva	3/11/07
Admitted: Colonial War Memorial Hospital	3/11/07
Discharged: Colonial War Memorial Hospital	14/11/07
CID Headquarters (detention at Central Police Station)	14/11/07 - 16/11/07
Admitted : Suva Private Hospital	16/11/07 - 8/1/08
Appearance before Magistrate	8/1/08

Mr Khan spent something like 60 days in those three places. When Mr Khan was taken from CID Headquarters to Suva Private Hospital he was escorted by the police. (affidavit paragraph 92) In Suva Private Hospital the evidence is that there was a police guard outside his room at all times. (affidavit: paragraphs 94, 98, 99 &103) They stopped people entering. They controlled Mr Khan's exit. Mr Khan said (affidavit paragraph 95 & 98) said he was told by the police that he was under their detention. Mr Khan says that he was unlawfully detained.

131 Supt Tevita Lesu (affidavit dated 24 January 2008 in the 2nd Habeas Corpus proceedings) says that following arrest, the condition of Mr Khan required that he go to Colonial War Memorial Hospital. Supt Lesu says that at this time he was under the control of the Medical Superintendant at that hospital and that in such circumstances he was "released from police custody". (affidavit, paragraph 9). While at the Colonial War Memorial Hospital Supt Lesu said:

Supt Lesu said that when Mr Khan was discharged from Colonial War Memorial Hospital, he was arrested. (affidavit paragraph 12)

132 On 16 November 2007, Mr Khan was taken to Suva Private Hospital. Supt Lesu says that Mr Khan was:

While Mr Khan was at the Suva Private Hospital, Supt Lesu described the situation as follows:

Supt Lesu categorically denied that Mr Khan was under arrest at the Suva Private Hospital. He pointed to the fact that while Mr Khan was at that Hospital the police provided security, monitoring and were waiting for the discharge of Mr Khan. Superintendent Lesu pointed to the fact that while at the hospital, Mr Khan was able to have visitors, see his lawyers and indeed was visited by a foreign journalist who interviewed him at the hospital.

133 The affidavit of Supt Lesu was filed in the second habeas corpus proceedings and at the time of the filing of his affidavit (5 January 2008) Mr Khan had not been brought before a magistrate.

134 On the evidence I am satisfied that he was under arrest from some time shortly after he arrived at the police post. His personal liberty was restricted by the police or the military. Using well-known touchstones in this regard, he could not go where he wanted to go.

135 In my opinion, the police were perfectly entitled to arrest him. A police officer may arrest, without a warrant (no warrant was ever produced), any person whom he suspects upon reasonable grounds of having committed a cognizable offence: section 21 Criminal Procedure Code. Conspiracy to murder is such an offence. The officers had more than sufficient grounds to hold a suspicion that Mr Khan was guilty of such offence. (If the military effected the arrest they are, in law, private persons and covered by section 24 of the Criminal Procedure Code. That provides that private person may arrest if he reasonably suspects the arrestee of having committed a felony provided a felony has been committed.) Section 25 of the Code which places arrest issues back in the hands of a police officer. Once he is arrested by the police officer under section 25, detention becomes, in effect the same as if first arrested by a police officer.

136 The right of personal liberty is protected by the Constitution. The Constitution provides:

Section 23 of the Criminal Procedure Code places practical qualifications on this right and requires that a person who is arrested to be taken before a Magistrate without unnecessary delay.

137 The 1st to 9th accused appeared in the Magistrates Court on 8 November 2007. It took until 8 January 2008 to bring Mr Khan before a Magistrate.

138 Mr Khan deposes that he protested to the police that he was unlawfully detained (affidavit paragraphs 95, 98) Mr Khan commenced a second application for habeas corpus proceedings on 27 December 2007, 12 days before he was finally brought before a Magistrate. I have already referred in detail to the affidavit sworn by Supt Lesu in opposition to their application.

139 The State argues that there is significance in the fact that the proceedings instigated were withdrawn. The unstated submission is that was based on a realisation that the detention was lawful. Counsel for Mr Khan replies by contending that these proceedings were withdrawn because following Mr Khan's appearance before a Magistrate he was no longer in unlawful custody and, as habeas corpus is concerned with the present unlawfulness of custody, the proceedings could no longer succeed. I could not infer from the withdrawal of such proceedings that the custody was lawful.

140 A further submission by the State in support of the contention that the detention was not unlawful is that the guard at Mr Khan's door was for his own protection. The first legitimate question might be "protection from whom?" In the affidavit of Serupepeli Neoko, an Inspector of Police, sworn on 10 July 2008, we see the police saying (affidavit paragraph 12) that Mr Khan was interviewed for 49 hours and 54 minutes. This occurred at CID headquarters. Nowhere is it suggested that because of the interviews it was not practicable to take Mr Khan before a Magistrate. It may be the police had other priorities. They wanted interviews. That is not the test.

141 Further Inspector Neoko says (affidavit paragraph 11) that from 16 November 2007, two officers were posted at the hospital "so that they could provide support to Ballu Khan as he could not walk properly." Acting Senior Superintendant Waisea Tabakau (affidavit dated 11 July 2008) says that the police guards were present for Mr Khans "own safety as well as for the safety of the public". No factual basis is made for either assertion. As to Mr Khan's safety no evidence has been presented that he was in danger. Equally, while the police might have believed that Mr Khan was a danger to the public, that is not a proper basis for detention when account is taken of the requirement to bring a suspect before a Magistrate within a reasonable time. That there may be circumstances in which a court might refuse bail on the basis that a person may commit other offences whilst on bail, it is simply not open for the police to determine this. While I am prepared to accept that Mr Khan may have had difficulty in walking, I do not for one moment accept that the officers were there to help Mr Khan. Mr Khan does not seem to have wanted their help. He instituted habeas corpus proceedings on 27 December 2007. That is unequivocal confirmation that Mr Khan was not consenting to being where he was - at least under police guard.

142 The issue of the true nature of the detention can be confirmed by uncontested facts.

143 The first is that it is uncontested that Mr Khan's spouse or partner was not allowed by the military to see him for a number of days. No medical reason has been given for such exclusion. No other reason has been given. There does not seem to be any basis for fearing that she was someone from whom Mr Khan needed protection. Indeed, Supt Lesu makes much of the fact that by the time Mr Khan was placed in Suva Private Hospital he was entitled to receive visitors and to see his lawyer in private. The implicit contrast with the position while Mr Khan was in Colonial War Memorial Hospital is blindingly obvious. Subject to some possible limitations, Mr Khan was always entitled to see his partner. It is very difficult to see how Supt Lesu can make a virtue out of according somebody a right which is guaranteed by the Constitution. Further, there is evidence of control and restraint from the fact that while Mr Khan's lawyer was allowed to visit, it was only for very circumscribed periods and with an officer in the room during the visit. The restrictions were not for medical grounds. No other ground has been suggested. It is to be noted that the situation in relation to lawyers continued until 16 November 2007 when Mr Khan saw counsel in private. In paragraph 103, he deposes that the police then accorded him privacy rights and the right to see his lawyer in private.

144 The essence of the case for the prosecution seems to be that Mr Khan was arrested, taken to Colonial War Memorial Hospital when not under arrest, taken to CID Headquarters and arrested and then he ceased to be arrested when he went to Suva Private Hospital. All along, there were guards outside his door. I reject without any hesitation whatever the notion that this was for his own protection. In any event, whether as a matter of strict technicality Mr Khan was "under arrest" does not address the true issue. The obligation following his arrest on 3 November 2007 was to take him before a magistrate without unnecessary delay.

145 There is no suggestion that Mr Khan consented to or requested such exclusions or controls over access. I conclude that Mr Khan was being detained and was not free to come and go as he wished. I conclude that no lawful justification for his detention has been made out. It has not been suggested that the fact that Mr Khan was for at least some part of his stay in hospital receiving medical treatment and would in all probability wished to remain in hospital somehow provides a justification.

146 Section 23 of the Criminal Procedure Code requires an arrested person to be taken before a Magistrate "without unnecessary delay". This appears to invoke the common law. The position at common law also required a person who was arrested to be taken before a court without unnecessary delay: Wright v Court (1825) 107 ER 1182; John Lewis & Co v Tims [1952] AC 676. That permitted a constable to do what was reasonable in the circumstances: Dallison v Caffrey [1965] 1 QB 348, [1964] 2 All ER 610; R v Ku Fat-sui [1989] 2 HKC 526, 529. Delay beyond what is reasonable leaves the person who detained the suspect open to an action in trespass and the detention at this stage would, at common law, be unlawful. Section 23 of the Criminal Procedure Code permits two forms of delay. The first might be described as institutional: delays associated with finding a sitti