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SUVA, Fiji (Fiji Times, Aug. 17) – The Appeals Court yesterday ordered a re-trial for 25 Counter Revolutionary Warfare soldiers because the army commander had picked those who had presided over the court martial.

This, according to the court, was wrong.

President of the Court of Appeals Justice Gordon Ward delivered the judgment yesterday saying the re-trial now had to be carried out by a different military court martial.

The CRW soldiers who appealed against their sentences were alleged to have taken part in the mutiny at the Queen Elizabeth Barracks in November 2000.

The Appeals court did not dispute the commander's right to convene a court martial but it agreed he had erred when he picked the officers and the judge advocate to preside over the court martial.

The army commander derives his right to convene a court martial from the delegated powers of the Governor General - a law that has not been amended since Fiji became a republic.

"It follows that although the Commander did not have jurisdiction to appoint the members of the court martial, he purported to do so,'' the judges said.

"This means the court martial process was fundamentally flawed." The appeals court also noted that the judge advocate Justice Sarvadanand Sadal's summing up before the previous court martial, which had convicted and sentenced the CRW soldiers, gave misdirection.

This was noted in Justice Sadal's inability to separate the charges each defendant was supposed to be charged with, the evidence admitted against them and the defence they put up.

The court dismissed the CRW soldiers' appeal grounds that the previous military court martial did not have a jurisdiction, their cases were not heard within a reasonable time and there was a delay in the proceeding.

On the argument they were denied a fair trial, the appeals court did not want to comment but instead hit out at lawyers for not taking note of this during the actual trial. "Had the counsel prepared the case more thoroughly they would have come to light before the trial started and could have been addressed then," the judges said.

Defence lawyers Vodo Tuberi and Sevuloni Valenitabua both said they would apply for bail for their clients.

On the re-trial, Mr Tuberi said: "It's going to be another long process and I do feel for the families of these men but it's something that cannot be avoided."

One of the defendants, Ropate Cakau, will have his bail hearing on Thursday after his lawyer Barbara Malimali, of the Legal Aid, submitted relevant documents yesterday.

Ms Malimali said the military would take time to convene another court martial and it was only proper that the CRW soldiers be released on bail.

Military lawyer Major Kitione Tuinaosara reminded Justice Ward that the proper court to hear the bail application was a court martial.

Justice Ward initially said he could not preside over the bail hearing because it is not his jurisdiction but that of the military.

He then set a Thursday date for Cakau's bail hearing, saying that he would be guided by appropriate legislation that the proper body to hear the application is not a subordinate court.

Outside court, Major Tuinaosara said the military would try and convene a court martial as soon as possible.

"We will have to work overtime on this and hopefully we will have the court martial convened by the end of this month," Major Tuinaosara said.

Wednesday, August 17, 2005

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