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Public Prosecutor v Moti [1998] VUSC 54; CRC 012 1998 (11 September 1998)

IN THE SUPR SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

ALIGN="CENTER">CR No. 12 of 1998

PUBLIC PROSECUTOR

R

v

JULIAN MOTI

Public Prosecutor for the State
The Defendant.

DECISION

This is an application by the applicant/Defendant by way of certiorari power seeking to remove into the Supreme Court the decision of the Senior Magistrate's Court and quash such decision.

The applicant was committed to the Supreme Court by the Senior Magistrate’s Court on two counts;

Count 1: Under Section 97 (1) of the Penal Code that he Julian Moti of Port Vila on the 8^th May 1997 did have sexual intercourse with S, an infant, at that time he knew that she was only 13 years of age

Count 2: Under Section 91 of the Penal Code that he Julian Moti between the month of June 1997 forced irl S to have sex with her, her, by slapping her for every time she refuse to have sex with her.

Penalty under Section 97 (1) is 14 years imprisonment and under Section 91, life imprisonment.

If leave is granted to the Defendant he will be seeking leave to remove into the Supreme Court the decision of the Senior Magistrate’s Court and:

(a) quash that decision and

(b) secondly he may seek an order to command the Senior Magistrate Court Magistrate to decide on an application made by the applicant in the Preliminary Inquiry.

The decision of the Senior Magistrate’s Court which the applicant/defendant will be reviewing if leave is granted is the decision by the learned Magistrate in that he did not allow the defendant to discredit the evidence of the Prosecution before the learned Magistrate deciding that such material presented discloses a prima-facie case against the Defendant. If he is granted leave then he will discredit the prosecution evidence in the committal proceeding.

In the final analysis, the question that would be decided by the Supreme Court on review would be basically, whether the Magistrate was obliged to grant the accuse the right to discredit the material presented to him under Part VII of the Criminal Procedure Code and particularly Section 145 (2).

Jurisdiction and Procedure

This is a criminal case regarding offence triable in the Supreme Court under Section 91 & 97 of the Penal Code and the procedure in regulating such offence as set out in the Criminal Procedure Code and other law of criminal jurisdiction as stated in Section 2 (1) which states:

All the criminal offence under the Penal Code shall be tried and otherwise dealt with according to the same provision, subject, however, to any other law regulating the manner or place of inquiry into trying or otherwise dealing with such offence.

Section 2 (2) states that:

Notwithstanding any other provision of this code, a court may subject to any other law of criminal jurisdiction in respect of any matter or thing to which the procedure described is inapplicable or for which no procedure is described, exercise such jurisdiction according to substantial justice and the general principles of law.

In this matter the Criminal Procedure Code has prescribed the procedure in Part VII in the conduct of a Preliminary Inquiry and under Section 2 this will be the authorised procedure and therefore under Section 2 (2) there is no need for application of substantial justice in how to proceed with P.I.

The relief sought by the applicant are as follows:

1. That the learned Senior Magistrate in refusing to allow the applicant an opportunity to discredit the material presented by the Public Prosecutor the P. I. before deciding by the said material disclosed a Prima Facie case against applicant:

a) Acted contrary to the provisions of the procedural requirements of Section 145 (2) of the Criminal Procedure Code (Cap 136);

b) Acted in excess of the jurisdiction conferred upon him under Part VII of the Criminal Procedure Code;

c) Deprived the applicant of his statutory right and entitlement to discredit the said material;

d) Denied the applicant procedural fairness and/or acted contrary to the requirements of natural justice;

e) Deprived the applicant of his fundamental rights of the protection of the law and equal treatment under the law or administrative action guaranteed under Articles 5 (1) (d) and 5 (1) (k), respectively, of the Constitution;

2. That the Learned Senior Magistrate’s ruling that the provisions of Section 145 (2) of the Criminal Procedure Code did not entitle the applicant to discredit the material presented by the Public Prosecutor at the P.I. was:

a) wrong in law;

b) contrary to the requirements of Section 145 (2) of the Criminal Procedure Code;

c) Made in excess of his jurisdiction;

d) Contrary to the requirement of procedural fairness and/or natural justice;

e) Made in contravention of the fundamental rights of the applicant to the protection of the law and equal treatment under the law or administrative action guaranteed under Article 5 (1) (d) and 5 (1) (k), respectively, of the Constitution.

In essence, laws that are made by parliament are always correct and only become invalid if declared invalid or repealed or amended as Article 16 (1) of the Constitution states:

Parliament may make laws for the peace, order and good government of Vanuatu.

And to validated such laws Article 16 (2), (3), & (4) are to be satisfied. For these reasons, the Criminal Procedure Code is an act of Parliament of which Part VII of the Act gives the legal frame work for procedure in conducting a P.I. My function in this application is for me to satisfy whether there is an arguable/reviewable in P.I. proceeding under Section 145 of the Criminal Procedure Code for removing to the Supreme Court for the applicant to argue before a reviewing judge.

Both the applicant and the Respondent has advance in some ways in this application which I consider as sufficient material for the Court to decide upon such material. Further the applicant made references to Constitutional Provisions which I will address towards the end.

Primarily Section 143 allows that all offences triable in the Supreme Court are to be conducted by way of P.I. Section 145 (1) is quite mandatory by the use of the word "shall", states that:

The Senior Magistrate shall not be bound to hold any formal hearing but shall consider the matter without delay in whatever manner and at what ever time as he shall consider fit.

If this is so then such conduct of P.I. shall be informal hearing. If this is informal then the Senior Magistrate is not obliged to comply with Part IV of the Criminal Procedure Code in disposing of cases. And basically he has no say as to the guilt of an accused person. If this is so then his jurisdiction would be an executive one in which the finality of the guilt of an accuse will be decided by the Supreme Court in the usual cause of proceeding in law. In Ex parte Cousens; Re-Blacked [1946] NSWStRp 36; (1946) 47 SR (NSW) 145 which C. J. Jordan said at p. 146:

In relation to charges of offences which they (that is Magistrates) have no jurisdiction to try and dispose of their authority is not judicial; they do not determine whether the accused is guilty or not guilty. They consider the evidence adduced against him and if they think there is enough to justify putting him upon his trial they direct that he be held, or bailed, for trial by a Court which has jurisdiction to try him. This is essentially an executive that a judicial function and although magistrate having been exercising this authority for nearly four hundred years, no instance can be found of a Superior Court having interfered with a Magistrate by certiorari or prohibition in this exercise of his jurisdiction.

This is not an authority case pursuant to Article 95 of the Constitution nevertheless I do accept as best explains the role of a Senior Magistrate in conducting P. I. which is the same as committals proceeding and by my power under Section 29 of the Courts Act I do adopt this as a rule of law in this jurisdiction as to P.I. proceeding conducted by magistrates under Part VII of the Criminal Procedure Code.

Section 145 (2) of the Criminal Procedure Code that raise the issue states:

The Senior Magistrate shall decide whether the material presented to him discloses, if not, the same be discredited, a prima-facie case against the intending accuse requiring that he be committed to the Supreme Court for trial upon information.

In my view for the Magistrate to exercise this jurisdiction he is only to rely and consider the material presented to him by the prosecution in the P. I. proceeding. The provision gives him the authority to use the same material to either satisfy that such material discloses the offence or not. If not then he can exercise the power under Section 146 (2) of the Criminal Procedure Code in discharging the intended accused . But if he decides that the material discloses a prima-facie case against the intended accuse then he shall pronounce his finding. In having decided that there is a prima-facie case against the accused person then he shall exercise the right under Section 145 (3) to the accuse; section 145 (3) states:

The Senior Magistrate shall allow, but shall not require the accused to make any statement or representation.

Basically under Section 145 (3) the Magistrate will give the accuse an opportunity either to make a statement or not but does not require calling evidence neither it does not give any right for prosecution witness be cross-examined by the accused. It is in my view, that it is not proper to interpret the word "discredit" in Section 145 (2) as giving procedural rights for the accuse to conduct his case. If it was meant, as the way the applicant wanted to, then the law must expressively say so.

In PP -v- Michael Mereko Van LR, the Chief Justice said at p. 619 that:

The duty of the investigating Magistrate is to find out whether there is a prima-facie case or not; if there is one, then he must commit for trial. If not, they must discharge the Defendant. They should not in the course of Preliminary Inquiry investigation act as a tribunal of fact in determining the issue of guilt or innocence. That is the jurisdiction of the tribunal which eventually try the case.

The magistrate did exercise that right to the Defendant as recorded in the committal authority, of which the accused stated:

I have to say that materials can be discredited. For example, the information given to the Ombudsman said she left school earlier and her language was written in language could be discredited. The so called victim also said she had sex with Vincent. Medical report does not indicate factors in mind and frequency of sex in the statement does not comply with normal circumstance.

In the affidavit he also stated matter which all goes to discredit the material presented by the prosecution for P. I purpose. Again applying the rule in PP v Michael Mereko the P.I. Magistrate is not a tribunal of fact in deciding the guilt or innocence of the accuse. The Chief Justice further stated in the case PP v Hollingson Issachaar Van LR V.2 p 743 stated that:

It must all time be remembered that a committing magistrate is not trying a defendant. All that the law requires of him is to assess the evidence and to decide whether there is a prima-facie case upon which a defendant should be tried upon. He is not called upon to ask himself. If I were a tribunal of fact would I convict the defendant. Under the law all he needs to ask himself is: upon the evidence that I have heard has the prosecution has shown that there is a prima facie case for the defendant to answer. If so, the Defendant ought to be committed to stand his trial; if not, the learned magistrate shall refuse to commit.

These two local authority support the fact that in a P. I. the intended accused is not allowed to call evidence or neither allowed to cross-examined the prosecution witnesses. And pursuant to Section 145 (2) the P.I. Magistrate on the same material presented to him by the Prosecution will have to decide whether the material presented disclose a prima facie case against the intended accuse or the same be not discredited a prima facie case against the accuse.

In conclusion what took place in a P. I. proceeding was proper and in accordance with the law under Part VII, and any matter in discrediting material from the prosecution is not a matter for the P.I. Magistrate but to do that in the usual cause of proceeding before the jurisdictional court in determining the guilt of the defendant as that is the very jurisdiction of the judge of the Supreme Court. Therefore, I find no aspect of the P. I. proceeding that require review in the Supreme Court and I do not grant leave.

I mention earlier that I will address Constitutional matters latter on, however, in coming to this finding I find that there is no need to be addressed.

DATED AT PORT VILA This 11^th Day of September 1998.

R. MARUM M.B.E
JUDGE

Mr. Daniel WILLIE for Public Prosecutor
Mr. Julian Moti.