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Public Prosecutor v Vakalalabure [1998] VUSC 7; Criminal Case No 059 of 1997 (21 April 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA

CRIMINAL JURISDICTION

CRIMINAL CASE No .59 OF 1997

PUBLIC PROSECUTOR

-v-

(1) TEVITA VAKALALABURE
(2) EMOSI KOROI
(3) SAMUELA RICA

Coram: Mrice Vice Vincent Lunabek, Acting Chief Justice

Counsel: Mr Willie Daniel for the Public Prosecutor
Mrs Susan Bothmann Barlow for the Defendp>

RULING

T

The question for the determination by this Court at this point of the trial/proceedings, is whether a ruling as to the admissibility of evidence be decided before submission of No case to answer by the Defence Counsel be made on behalf of the 3 Defendants.

The reason for this question to be raised at this stage of the trial is as follows :

During the course of the Prosecution case, the Defence Counsel by exercising her duty on behalf of her clients/the 3 abovenamed Defendants raised objections concerning some pieces of evidence from the Prosecutions witnesses on the basis that they are hearsay and as such are not admissible evidence.

The first objection was raised when the Prosecution witness - Junior Magoon gave evidence about a conversation he had with the Defendant Tevita which incriminates the 3 Defendants.

Written submissions from both Counsels were made and produced to the Court. I have had the opportunity of reading both submissions and I came to the view that before any ruling can be made on the point of objection- since in this jurisdiction, there is no system of trial within Jury but the Judge is both the Judge of law and the Judge of fact- the appropriate course for me as the Judge of law is to conduct a trial within a trial (i.e. a voir dire) to determine the issue of admissibility of that piece of evidence which is a question of law indeed.

After brief discussions with both Counsels, I must indicate that I am greatly assisted by the Defence Counsel submission to the effect that she will exercise her duty on behalf of her clients to raise objections on the pieces of evidence upon which she considered they are not admissible and that I, as the Judge of law will make a ruling on those objections of admissibility at the end of the case. I further indicated that the objections when raised will be noted. 3 or 4 objections were raised by the Defence Counsel on the basis that the pieces of evidence of some of the Prosecution witnesses constitute hearsay evidence and as such are inadmissible. [see evidence of Junior Magoon - Losana - Mary Magoon].

At the end of the Prosecution case, the Defence Counsel sought to make submission of No case to answer in respect of each of the 3 Defendants.

Before she proceeds, I then raise and seek assistance from both Counsels as to the appropriate approach to be taken since the question of the admissibility of some pieces of evidence tendered by the Prosecution are still pending for determination.

Both Counsels made oral submissions as to the appropriate Course to be taken.

The Defence Counsel submitted, inter alia, and in substance that the Court will allow her to make submissions of No Case to answer in respect of the 3rd defendant, Samuela Rica on the basis that, the potential in admissible hearsay in relation to that Defendant, [Samuela Rica] is so scant - so little of it - that it is unlikely to affect the Court decision. Further that, the Court can make any ruling as to a No case submission in respect to the 3rd Defendant, Samuela Rica, without any evidence being excluded.

It is also submitted for the Defendants that if the Court allows the Defence Counsel to proceed that way and allow the Prosecution to make submissions in reply and if the Court rules against the Defence, then the Defence Counsel will not take the Court’s time to make "No Case" submission on behalf of the 2 other Defendants. The Defence will proceed to adduce evidence on behalf of the 3 Defendants.

The Prosecution submitted that the admissibility issue be determined first before any case of No case to answer be proceeded with by the Defence.

Having heard both Counsels and having further considered both oral submissions in detail, I am of the view that on balance in the interest of criminal justice system in this jurisdiction, and in fairness to the Defendants and in particular the 3rd Defendant, the question of admissibility of the Prosecution evidence which were still pending for determination be ruled upon first by the Court before the Defence Counsel can make any submission of "No Case" to answer in respect of each of the 3 Defendants.

On the basis of these considerations, I make the following Orders and Directions :-

1. THAT the Defence Counsel will specify pieces of evidence upon which she raised objections on their admissibility. Objections were raised by the Defence Counsel about the admissibility of some pieces of evidence given by the following Prosecution witnesses :

- Junior Magoon

- Losana

- Marry Magoon.

2. THAT the submissions shall not go beyond the question of admissibility of evidence which is a question of law. Both Counsels should state the purpose for which the piece of evidence in question is given - whether it is intended to prove the truth of the content of the statement or whether it is offered as a fact or it is part of a fact in issue.

3. The Defence has from today Wednesday 21st April until Monday 4th May 1998 to prepare their submissions and thereafter send a copy to the Prosecution for reply by 4 May 1998.

4. The submissions will be put before the Court on Thursday 7 May 1998 and that a ruling will be made on 11 May 1998 at 9.00am o’clock.

DATED AT PORT-VILA, this 21st DAY of APRIL 1998

BY THE COURT

VINCENT LUNABEK, J.
Acting Chief Justice