IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No.42 of 2005

PUBLIC PROSECUTOR

-v-

GABILOU WHITFORD

Coram: Justice H. Bulu

Counsels: Mr. Lent Tevi for the Public Prosecutor
Mr. Jack Kilu for the Defendant

Date of Hearing: 7 and 14 June 2006
Dated of Decision: 15 June 2006

DECISION ON APPLICATION FOR BAIL

1.	The defendant is charged with Premeditated Intentional Homicide contrary to Section 106 (b) of the Penal Code Act [CAP. 135]. The offence under that section attracts a maximum penalty of life imprisonment.

2.	The Defendant has been in custody since his arrest. On 7th and 14th June 2006 the Court heard Mr. Kilu on an application to grant the Defendant bail. The application is based on the following grounds:- 

(a)	That the Defendant is in poor health;

(b)	That his family needs his support at home;

(c)	That the Defendant under the Constitution has a right to come before the Court within a reasonable time;

(d)	That since he has been in custody he has a good record.

3.	The Defendant had attended the Port Vila Central Hospital and was examined by Cecil Ala. Mr. Ala’s brief medical report dated 24 March 2006 at the outset, states that the Defendant "is a known gastric ulcer patient". The report went on to state "On physical examination, there was no mass detected. He looks slightly pale. His appearance is generally normal and he does not specifically look sick. There was no fever, pulse rate is 72/min and normal, no respiratory distress and BP is 120/80 and normal. There is no presence of any physical or mental disability detected at this brief encounter."

4.	Due to that finding and the Defendant’s medical history and in consideration of his request for bail the medical report went on to conclude that he needs to go in for a further medical test to compete the medical examination to determine his medical condition (especially the colour of his blackish stool).

5.	On 7th June the Court ordered the Defendant to undergo further medical examination in line with earlier medical report to determine his health. This should be able to show whether the Defendant’s health is such that he should not be kept in custody due to that condition. Today that further medical report was received in Court and it concludes that the Defendant is "physically fit and may only need mild treatment (such as antacid) for his symptoms. His current symptoms are not life- threatening and that his current symptoms are not life threatening."

6.	Mr. Kilu in his conclusion maintained that the Defendant be released on bail as the reasons advanced are special reasons. These are:-

(a)	That the wife had undergone three medical operations in the past;

(b)	There are children to take care of;

(c)	The Defendant’s parents who are both over 60 years of age are staying at home at the Defendant’s home;

(d)	Good behaviour while in custody.

And it is necessary that the Defendant is given bail to return home and support the wife in maintaining the home and looking after the old people.

7.	The third ground of the Bail Application regarding the right of the Defendant under the Constitution to have a trial within a reasonable time was abandoned at the hearing by Mr. Kilu. 

8.	Mr. Tevi on behalf of the Prosecution opposed the application for bail firstly on the grounds of Section 60 of the Criminal Procedure Code Act [CAP. 136]. That the Defendant is charged with an offence which is a very serious offence attracting life imprisonment as a maximum term and should not be granted on bail. Secondly, that the Defendant’s step daughter who is a prosecution witness has been contacted by the mother with the purpose of having her change her evidence. Even though the contact has ceased the risk is higher if the Defendant is released on bail. 

9.	I have had the opportunity to consider the submissions made by Mr. Kilu on behalf of the Defendant and Mr. Tevi on behalf of the State. No case authorities on point was forthcoming to assist the Court in the determination as to whether someone charged with such offence can be granted bail and if so what factors must the Court taken into account in making determination.

10.	I have considered Section 60 of the Criminal Procedure Code Act and in my view that provision envisages two situations. The first is that anyone charged with an offence that attracts life imprisonment be not granted bail. The second situation is where someone in that situation can be granted bail if the Court considers it appropriate. Subsection 1 contains the rule. Subsection 3 contains the exception to the rules. The provision however is silent on a guideline for the Courts to use in the exception to the rule.

11.	For the exception in Subsection 3 to apply there must be special or good reasons on which the Court is satisfied to grant bail. In the application before the Court the Defendant through his counsel has provided four reasons as to why bail should be granted. In respect of each reason there is no evidence before the Court to show that what is submitted from the bar table in fact is the situation. There is no evidence supporting the second ground that the Defendant’s wife is suffering from poor health due to three operations she had undergone in the past and what those factors are. There is no evidence before the Court also to show the hardship or difficulties the wife is facing at home in the absence of the Defendant while he remains in custody. There is no evidence as to how many children there are altogether that she is looking after and also evidence in relation to the Defendant’s father and mother that they are actually staying with her and further that they are over the age of sixty. 

12.	When an application is made under Section 60 of the Criminal Procedure Code for someone who has been charged with an offence carrying a maximum term of life imprisonment, it is in my view essential that the applicant comes with good evidence to persuade the Court that his situation is special or such that the Court has to invoke Subsection 3. It is trite law that what is said from the bar table (said by lawyers) is not evidence to support a proposition or an application that is before the Court. It is the duty of the applicant to come to Court with all the relevant evidence to support his application or proposition. 

13.	The reasons advanced in this application may very well be that they fall within Subsection 3 of Section 60. But there is no evidence supporting or conforming the reasons for the application. It is a duty of counsels representing their clients to prepare properly the case of their clients before they come to Court. When that does not happen it begs the question, was there justice done in the case? 

14.	The third ground concerning the right of the Defendant under the Constitution for the hearing to take place within a reasonable time was abandoned during the hearing.

15.	The last ground concerning the good behaviour of the Defendant while he has been in custody awaiting trial is a plus for him. However, good behaviour in custody in my view is not a relevant consideration for an application for bail. Good behaviour while in custody is a mechanism created under the Prisons Administration Act for those who have been convicted of crimes by a Court to be able to be released earlier from custody due to the good behaviour while they were in. As such the purpose of good behaviour reports by those in charge of prisons has a different objective.

16.	The first ground concerning the medical condition of the Defendant is really a non-issue. The last medical report dated 13 June 2006 contains the following relevant paragraphs:-

"On examination, his vitals (BP, Pulse, Respiratory rate and temperature) are normal. His cardiovascular, respiratory, gastro intestinal and central nervous systems are all normal.

He had an endoscope this morning and according to the consultant surgeon’s finding he doesn’t a gastric or a duodenal ulcer.

He therefore is physically fit and may only need mild treatment (such as antacid) for his symptoms. His current symptoms are not life-threatening."

17.	For the reasons I have outlined above the application must therefore be refused. I am not satisfied that the reasons for the application can fall within Section 60 (3) of the Criminal Procedure Code Act.

DATED at Port Vila, this 15th day of June 2006.

H. BULU
Judge.