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Massing v Public Prosecutor [2008] VUCA 10; Criminal Appeal Case No 03 of 2008 (30 April 2008)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appellate Jurisdiction)

Criminal Appeal Case No. 03 of 2008

BETWEEN:

WELL MASSING
JOSEPH MASSING
API MASSING
DANIEL MASSING
MAHIT MASSING
ANDY MASSING
GEORGE MASSING
Appellants

AND:

THE PUBLIC PROSECUTOR
Respondent

Coram: Hon. Justice Bruce Robertson
Hon. Justice Oliver Saksak
Hon. Justice Hamlison Bulu
Hon. Justice Christopher Tuohy
Hon. Justice John Mansfield

Counsels: Mr. Hillary Toa for the Appellants
Mr. Bernard Standish for the Respondent

Date of Hearing: 24 April 2008
Date of Decision: 30 April 2008

JUDGMENT

The Appellants filed a notice that they intended to appeal against the sentences of imprisonment imposed on them by the learned Chief Justice (the sentencing Judge) on 19th December 2005 which were as follows:-

1. Well Massing – 18 years imprisonment;
   
2. Joseph Massing – 10 years imprisonment;
   
3. Api Massing – 18 years imprisonment;
   
4. Gideon Massing – 18 years imprisonment;
   
5. Daniel Massing – 14 years imprisonment;
   
6. Mahit Massing – 18 years imprisonment;
   
7. Andy Massing – 14 years imprisonment;
   
8. George Massing – 18 years imprisonment.
   

The Appellants were charged with premeditated intentional homicide contrary to section 106 (1) (b) of the Penal Code Act [CAP. 135]. This offence carries a maximum penalty of life imprisonment.

On their arraignment all the Appellants who were represented by counsel pleaded guilty to the charge. They were sentenced upon the basis of the sentencing submission tendered by the Prosecutor. The factual basis was agreed upon.

At the end of the sentencing remarks, the sentencing judge advised the Appellants about their right of appeal within 14 days in accordance with section 94 of the Criminal Procedure Code Act [CAP. 136].

The Appellants did not appeal within the 14 days period allowed. However on 26th March 2008 a Notice of Appeal was filed by Mr. Toa on behalf of the Appellants.

As the appeal was some 2 years and 2 months out of time the Appellants also, filed Applications seeking leave to file their appeals out of time. They asserted five grounds in support:-

1. They had delayed their appeal for fear of reaction by the relatives of the deceased against them.
   
2. They were held in maximum security at the time and were therefore hamstrung by that in not prosecuting their appeals.
   
3. They had received legal advice not to appeal.
   
4. As a result of that advice, the Appellants further asserted they had not been given the opportunity to appeal.
   
5. The police had advised them not to appeal as they would be free anyway when the prison house would be demolished and there would be nowhere for them to be kept.
   

In relation to the substantive appeal the Appellants asserted 12 grounds in their Notice of Appeal. But the major thrust of those grounds 1 – 10 is summarized in ground 1 which states:-

"The learned judge erred in fact and in law in that he failed, refused, neglected to take into account the fact that the Appellants all had not planned this attack and that they only retaliated in self defence."

Ground 11 asserted that the Appellants were wrongly convicted by the sentencing judge. Shortly before the hearing before us, each of the Appellants filed a sworn statement in which they effectively challenged their criminal culpability and liability in respect of the charges.

After substantial dialogue in Court it became apparent that each of these men contended that they had been in error when they entered pleas of guilty to the charges, that their confessional statements to the Police were untrue and should not have been admitted in evidence, and that because of either self defence or non-involvement they were entirely innocent.

The Public Prosecutor not surprisingly was outraged at the possibility of this matter arising at the last moment. We were nonetheless satisfied that we could not ignore what we were being told. The proceedings before the Court do not deal with these issues. The question of the appropriateness of the sentences is dependant upon the convictions being properly entered.

With great reluctance therefore we have no option but to adjourn this application to appeal against sentence.

If the Appellants intend to challenge their convictions (notwithstanding the extra-ordinary difficulties which they will face) they must be given an opportunity to do so.

This current appeal relating only to sentence should be listed again at the next session to see what progress have been made with regard to other issues.

The course of action we have taken, should not be interpreted in any way as suggesting that we are of the view that there is any hope of success in respect of the matter.

There were generalized comments being made on their behalf which we have no way of assessing. We do note that there are problems whenever people who have been represented by counsel and have made admissions, want to withdraw pleas of guilty. It becomes even more difficult after sentence and after a delay of more than two years.

It will be a matter for the Appellants and their advisers to determine whether there is any efficacy in pursuing such a course of action. Until that issue had been determined the question of the appropriateness of the sentences simply does not arise and cannot be adjudicated upon.

DATED at Port Vila, this 30th day of April, 2008.

BY THE COURT

Hon. Bruce Robertson J.
Hon. Oliver A. Saksak J.
Hon. Hamlison Bulu J.
Hon. Christopher Tuohy J.
Hon. John Mansfield J.