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Public Prosecutor v Solo [2000] VUSC 33; Criminal Case No 023 of 1998 (6 July 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> Criminal Case No.23 of 1998

SC File No. 10 of 1998

PUBLIC PROSECUTOR

-V-

VESENI SOLO

Coram:ustice Oliver A. Saksak

Ms Cynthia Thomas - Clerk

Inspector Wilson Dudley Garae for the Public Prosecutor

Mr Hillary Toa for the Defendant

JUDGEMENT

The Defendant was charged on 12^{up> March 1998 initially with eight counts as followsllows:-}

Count 1 - ;&nbssp; &bsp; Sexual iotercourse wrse with a girl under care and control contrary to section 96(1) of the Penal Code Act.

class="MsoNoMsoNormal" style="text-indent: -72.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom: 1"> Count 2- & p;&bssp;&bbsp; Sep; Sep; Sexual intercourse with a girl under care and control contrary to section 96(1) of the Act.n>

Count 3-  p;&nbbsp;&nsp; &nsp; Raperary eto section tion 91 of the Act.

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Count sp; nbsp; &nbbp;&nRap; contrary to section 91 of the Act.

Count 5- &&nsp;;&nspp;&nssp Incest contrary to s to section 95(a) of the Act.

Count 6- ;&nbssp; &nsp;&nbbsp;&bsp; Incest on contrary to s to section 95(a) of the Act.

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Count 7- &  &nbbp;&nUnl; Unlawful wful sexual intercourse contrary to section 97(2) of the Act.

Count 8-  p;&nbbsp;&nsp; &nsp; Unla sexutl intercourrcourse contrary to section 97(2) of the Act.

During his arraignment be the Acting Chief Justice, the Honourable Mr Justice Vincent Lunabek on 18^{th August 1998 the Public Prosecutor withdrew Counts 5 and 6 respectively. The Defendant pleaded not-guilty to all the remaining six charges.}

On 4 November 1988, Mr Bill Bani Tangwata who then prosecuted the case on behalf oalf of the Public Prosecutor sought leave of the Court to amend Count 7 and to withdraw counts 2, 4 and 8 respectively. Leave was granted and the three counts were withdrawn and Count 7 was amended. The Defendant was re-arraigned on the three remaining Counts to which he maintained his not-guilty pleas. The trial commenced on 4^th November 1998 when Mr Tangwata called evidence from the complainant, Vetono Ben. The trial resumed on 29^th March 1999 this time with Mr Willie Daniel prosecuting on behalf of the Public Prosecutor in place of Mr Tangwata who had then left the office of the Public Prosecutions. He called evidence from the second prosecution witness being Enthy Jaujau. His third witness that day was Ateliu Sile. On 30^th March 1999 Mr Daniel called evidence from Dr. Timothy Vocor, his fourth witness and later from the investigating officer Samson Sam. When Mr Daniel sought leave to admit the written statement of the Defendant into evidence, Counsel for the Defendant objected to its admission. He alleged that the admission by the Defendant was made involuntarily and called for a voire dire.

The burden of proof shifted to the Defendant who then became the conant. Among other things, tgs, the Defendant gave evidence concerning his arrest, his detention at the Police Station and the way in which his statement was taken by the Police Officer.

In rebuttal Mr Daniel called evidence from Ati Utih extended to 8^th and 9^th AprilApril 1999. Further evidence was called and received from William Thomas and Ariel Maranda, two of the uniformed Police Officers who arrested the Defendant. On 9^th April the Prosecution led evidence in rebuttal from Vetono Ben the Complainant which extended to Monday 12^th April and Tuesday 13^th April. Also on 13^th April the Prosecution led evidence from Samson Sam, the Police Investigating Officer. This continued on 14^th April 1999. Counsel for the Defendant then indicated that he intended to call three further witnesses. Mr Daniel objected strenuously as the complainant had closed this case. The court did not allow further evidence to be called by Mr Toa.

Both Counsel then made final submissions after which I ed and ruled that the admission of the Defendant made made in his statement to the police officer was involuntary and was therefore not admissible as evidence. The reasons are contained in my written judgement dated 14^th April 1999.

On 15^th April 1999 the Court resumed the normal trial. Mr Daniel informed the Court at the outset that the Prosecution had closed its case. Mr Toa did not apply for a no-case submission but advised that he intended to call three other witnesses for the Defence. And he led evidence from Judy Malowua which extended to 19^th and 20^th April 1999. On 20^th April 1999 Mr Toa led evidence also from Joel Tavue the third witness for the Defence. His examination-in-chief was incomplete when the court adjourned at 4.30pm that day. No dates were fixed then. However on or about 6^th April, 2000 the Court Registry issued Notices of Hearing appointing 3^rd July 2000 as the next date of hearing. On 3^rd July 2000 Mr Toa was not able to attend court due to a full flight and the matter was simply stood over to 4^th July 2000.

On 4^th July, 2000 at 10ock in the morning when the case was called, Inspector Wils Wilson Garae advised the Court that he was acting on behalf of the Public Prosecutor. He further advise that he being the third prosecutor in the case had no instructions and no File containing the necessary documents. He advised further that he was not aware of the hearing being listed for 4^th July, 2000. He sought an adjournment to 2 O'clock in the afternoon in order to attempt to locate the Prosecution File. There being no objection by Mr Toa, the adjournment was granted.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The Court resumed at 2 O'clock on the aoon of 4^th July, 2000. Inspector Garae in addresddressing the Court advised that he had located their File after a careful search. As the third person prosecuting the case, and in view of the judgment of the Court in Criminal Case No.101 of 2000 Public Prosecutor -v- Timothy Ulas dated 28^th May, 2000 considered in connection with the judgement of the Court concerning the voire dire in the present case dated 14^th April 1999, he sought leave to address the Court. Such leave was granted.

Inspector Garae referred to Timothy Ulas' case where the court rul a result of a voire dire tire that only parts of his admission statements were admitted into evidence and yet at the end of the full trial the remaining evidence were held to be insufficient to enter a conviction. As such therefore the defendant was acquitted.

He then referred to the Court's ruling on Veseni Solo's case where the Court concluded that his confession statement was obtained against his will rendering the whole of the statement inadmissible. He then submitted that to continue with the trial without the admission of the Defendant would not be a useful exercise.

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I under the Inspector to be saying in effect that the Prosecution had relied mainly on the athe admission of the Defendant in order to prove his guilt. Without that submission, the evidence from the other witnesses for the Prosecution could not stand as they were mainly hearsay evidence.

p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Mr Toa submitted only briefly that it was for the Court to give directin the light of Inspector tor Garae's submissions whether to proceed further and complete the evidence for the defence, or make a finding at this stage.

I felt obliged to make a brief assessment of the overall evidence adduced by the pution in the light of of the Inspector's submissions. And by doing so which did not take long to do, I came to the same conclusion as the Inspector. It is indeed a credit to Inspector Garae whom the Court understands is not a trained or qualified lawyer, just a Police State Prosecutor who only took carriage of the case on the morning of 4^th July, 2000 to immediately form an assessment of the strength of the prosecution case in the light of the judgements which he usefully referred the court to. For such a person to make the submissions that he did which seems out of line as far as criminal procedure is concerned is sheer boldness.

In making known the view of the Court as regards the sth of the evidence for the prosecution, Inspector Gar Garae then inform the Court that the proceedings would not continue and asked the Court to enter a nolle prosequi under section 29(1) of the Criminal Procedure Code Act [CAP.136]. The Court did and therefore discharged the Defendant of all charges laid against him.

As regards procedure, it would been proper for the Defence Counsel after the Prosecution hion had closed its case and after the judgement of the Court on the voire dire delivered on 14^th April 1999 to make a no-case submission but he did not. In any event in all criminal proceedings it is the prosecutions that are in control. Section 29(1) of the CPC Act states:-

p class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "In any criminal case and at any stage thereof before verdict or j>or judgement, the Public Prosecutor may enter a nolle prosequi by informing the Court that he intends that the proceedings shall not continue, and there upon the accused shall at once be discharged in respect of the charge for which the nolle prosequi is entered,…."

(emphasis, mine)

The discretion to discontinue a at any stage of the criminal proceedings rests with the Prhe Prosecutor but this can be exercised only before a verdict or judgement of the Court. A 'verdict or judgement' means an opinion as to guilt and not to evidence. And this provision in my opinion is wide enough to cover the present situation. And this discretion may be exercised as and when the prosecutor has formed an opinion as to the strength of his witnesses' evidence in the light of his given circumstances. A prosecutor should at all times be mindful of the legal and evidential burden that rest upon him by virtue of sections 8 and 9 of the Penal Code Act. Where circumstances during the course of a criminal proceedings reduce the strength of the prosecution evidence substantially to the extent that the prosecutor is unable to discharge the burden of proof to the required standard, then the proper course for him to take is to proceed under section 29 of the CPC Act.

That is ly what happened here and I am of the view that the Inspector was entitled to exercisercise a discretion under section 29 of the CPC Act, and that he had exercised that discretion rightly and appropriately.

PUBLISHED at Luganville thsup>th day of July, 2000.

lass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BY THE COURT

OLIVER A. SAKSAK

Judge