IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT LUGANVILLE/SANTO
(Criminal Jurisdiction)
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Criminal Case No.61 of 1999
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PUBLIC PROSECUTOR
-VS-
RICHARD PAKETE
MAXIME REMY
FRED BONG
JULIAN REMY
MARK ENOCH
SANIC SILVIO
HENRY ENOCH
ENOCH ATISA
C Mr Justice Oliver A
Saksak
Ms Cynthia Thomas - Clerk
Ms Kayleen Tavoa for the Public
Prosecutor
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Mr Bill Bani Tangwata for
Maxime Remy
Mr Hillary Toa for the other 7
Defendants
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JUDGEMENan>
This case has been set for
trial for one week commencing today 24th February 2000.
Ms Tavoa for the Public
ecutor informs the Court at the outset that the file containing the
original handwritdwritten statements
has gone missing from their offices and this
fact came to her attention on Saturday 19th February 2000. She informs the
Court that there has been few suspects and that investigations are being
conducted into the matter. She indicated that the
prosecution would not
object to any applications for bail on conditions made on behalf of the
defendants. She indicated
that whilst on bail Prosecution would obtain fresh
statements and would then proceed with the case.
Mr Bill Bani Tangwata
sents one defendant Maxime Remy. He tells the Court that it is
unfortunate that a fila file would
go missing. He is concerned that his client
has been in custody for 6 months since August 1999 without trial and
therefore
would agree that they be granted bail.
Mr Hillary Toa on behalf of the
other 7 defendants says he takes the same approach as Mr Tangwata and asked
that the defendants
be bailed.
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In considering whether or not
to grant bail, I have to decide what is reaappening in reality when then the
Court is told
today that the file is missing. In my considered view where
the file containing evidence to be relied upon by the Prosecution
is
missing, in reality the Prosecution is sayifng that they are not offering
any evidence against the defendants. That
being so , the proper course to
take is not to proceed through an application for bail but to rely upon
Section 43 (1)
of the Penal Code Act (Cap.135) which reads:-
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(2) A discharge under this
on shall be considered to be an acquittal."
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By this provision the Court has
power and discretion to discharge efendants after it has hear heard the
circumstances
of the case.
I treat the matter by the
Prosecution as not offeany evidence today because of the missing file
and nond not as an entry
of nolle prosequi under section 29 of the Criminal
Procedure Code Act CAP 136 which reads:-
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"(1) In any criminal case and
at any stage thebefore verdict or judgment,ment, the Public Prosecutor may
enter a
nolle prosequi by informing the Court that he intends that the
proceedings shall not continue, and thereupon the accused shall
be at once
discharged in respect of the charge for which the nolle prosequi is entered,
and if he has been committed
to prison shall be released, such discharge of
an accused person shall operate as a bar to any subsequent proceedings
against him on account of the same facts and he shall be treated in all
respects as though he had been acquitted."
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This is different from the
situation withe prosequi in England. Referring to Halsbury's Laws of
England 3rd Edition,
Volume 10 page 399 at paragraph 721 where the effect of
nolle prosequi is stated to be different from the effect of offering
no
evidence in the following words:-
"Nolle prosequi is distinct
from, and has not the same effect as, offering no evidence and submitting to
acquittal.
The effect of a nolle prosequi is that all proceedings on the
indictment are stayed and the defendant, if he is in custody,
is discharged
but may be indicted afresh on the same charge."
In Vanuatu, accordo
section 29(1) of the Criminal Procedure Code Act, the effect of a nolle
proseprosequi is that a discharge operates as a bar to any subsequent proceedings
against
the defendants on account of the same facts. That being so, it is my
view that I should treat the matter as offering no evidence
on the part of
the Prosecution and discharging the defendants under section 43(1) and (2).
If there should be fresh evidence
taken from the complainants, it would be
the start of a new proceedings. The defendants, excluding Fred Bong have
been
in custody awaiting trail for 6 months today from August 1999. With he
File missing there is really no evidence from the prosecution
to proceed
with the trial and therefore it is appropriate that rather than have the
defendants released on bail on conditions
for which I find no legal basis to
do, I discharge all the eight (8) defendants from all charges laid against
each and
every one of them. I further order that defendants Richard Packete,
Maxime Remy, Julian Remy, Mark Enoch, Sanic Silvio, Henry
Enoch and Enoch
Atisa be released from custody forthwith.
DATED at Luganville this 24th
day of February, 2000.
BY THE COURT
OLIVER A SAKSAK
Judge
