CRIMINAL CASE No. 59 OF 1997
PER">PUBLIC PROSECUTOR
-v-
(1) TEVITA VAKALALABURE
(2) EMOSI KOROI
(3) SAMUELA RICA
Coram: Justice Vincent Lunabek, Acting Chief Justice
Counsel: Mr Willie Daniel for the Public Prosecutor
Mrs Susan Bothmann Barlow for the 3 Defendants
RER">RULING ON "NO CASE" SUBMISSION
IN RESPECT TO 3rd DEFENDANT:
SAMUELA RICA
This is a submission of "No Case" to answer in respect to the third
Defendant, Samuela Rica. In this jurisdiction,
there is no system of "Trial by
Jury". The Judge is both the Judge of law and the Judge of fact.
In that respect, where a submission of no case is made either on the ground that the
evidence for the Prosecution is insufficient
to justify a conviction or on the ground that
it is so tenuous that it would be unsafe to leave the case to the Jury, that is,
in this
jurisdiction the Judge of fact, the submission is made to the Judge as the Judge of law.
Section 164 of the Criminal Procedure Code Act CAP 136 provides:
"(1) If, when the case for the prosecution has been concluded, the Judge rules, as
a matter of law that there is no
evidence on which the accused person could be convicted,
he shall there upon pronounce a verdict of not guilty.
(2) In any other case, the Court shall call upon the accused person for his
defence..."
In the case of Public Prosecutor v. Samson Kilman and others, Criminal Case No.
5 of 1997, this Court did follow and adopt the guidelines as to how the Judge should
approach a submission
of "No Case" which were set out by the Judgment of the
Court of Appeal (English) in Reg. v. Galbraight (CA) (1981), 1 W.L.R. 1039.
Lord Cane C.J. who gave the judgment read the following:
"How then should the Judge approach a submission of "No Case?"
(1) If there is no evidence that the crime alleged has been committed by the Defendant,
there is no difficulty. The Judge
will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous
character, for example because of inherent
weakness or vagueness or because it is
inconsistent with other evidence.
(a) Where the Judge comes to the conclusion that the Prosecution evidence, taken at its
highest, is such that a jury properly
directed could not properly convict upon it, it is
his duty, upon a submission being made, to stop the case.
(b) Where however the Prosecution evidence is such that its strength or weakness
depends on the view to be taken of a witness’
reliability, or other matters which are
generally speaking within the province of the jury and where on one possible view
of the
facts, there is evidence upon which a jury could properly come to the conclusion that the
Defendant
is guilty, then the Judge should allow the matter to be tried by the Jury. It
follows that... the second of the two schools
of thought is to be preferred..." (at
p.1402).
In this case, I bear in mind of the language of section 164(1) of the Criminal
Procedure Code CAP 136 and the fact that I sit both as the Judge of law and the Judge of
fact. Upon hearing and reading the Defence’s
submission of "No Case" in
respect of the Defendant Samuela Rica, and the Prosecution response, I spent some time
in
considering the respective detailed arguments on each and everyone of the 3 charges
concerning the Defendant Samuela
Rica, for my own direction, I come to the conclusion that
there is evidence against the Defendant Samuela Rica. The strength
or weakness of the
Prosecution evidence depends on the view to be taken of the Prosecution’s
witnesses’ reliability,
namely Junior Mgoon, Isaac Driver, Losana, Mary Mgoon and
Laitia. There are also other matters which are generally speaking
within the province of
the Judge of fact. I, therefore, hold the view that Defendant Samuela Rica has a case to
answer.
The Defence submission of "No Case" to answer in respect to Defendant
Samuela Rica be dismissed and I so rule.
DATED AT PORT-VILA, this 13th DAY of MAY 1998
BY THE COURT
VINCENT LUNABEK, J.
Acting Chief Justice
