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

Criminal Case No.27 of 2006

PUBLIC PROSECUTOR

V

TREVA CYREAL

Coram: Justice C. N. Tuohy

Mr. Tevi for Public Prosecutor
Mr. Bartels for Defendant

Dates of Hearing: 11, 12, 13 & 14 October 2006
Date of Decision: 14 October 2006

ORAL JUDGMENT

1.	The defendant Mr. Treva Cyreal faces 2 charges. The first is a charge of criminal nuisance laid under s. 113 of the Penal Code and the second is threatening to kill charged under s.115 of the Penal Code. The charges arise out of two separate incidents at Paunagnisu in September 2003. The prosecution called 5 witnesses in support of the charges: Neil Marcel, Fred Kalo, Eric Fred, Bruno Partish and a police officer corporal, Morris Seule. 

2.	The defendant gave evidence himself and called two witnesses. Of the prosecution witnesses, the first two gave evidence solely in relation to count 1, the seashore incident. The second two gave evidence solely in respect to count 2, the plantation incident. The last prosecution witness interviewed the defendant and took a statement. He acknowledged that the only allegations put by him to the defendant related to the plantation incident, so his evidence is also relevant only to count 2.

3.	I turn to consider the evidence and whether each count and each element of each count has been proven beyond reasonable doubt, the onus being on the prosecution.

4.	Count 1, the prosecution case is that the first 2 witnesses were in the course of paddling a canoe across a restricted area on the sea in front of Nagar Resort owned by the defendant’s parents and that the defendant standing on the shore fired a rifle shot with the intention of frightening them. They did take fright and both jumped from the canoe and swam to shore. 

5.	The defendant’s case was that he never fired any rifle shot from the shore, that he was not even present at any such event and he gave evidence to that effect. He also called 2 witnesses who were working at the resort during that month in order to throw doubt on the claim that any such incident occurred at all. The prosecution case was based entirely on the evidence of Neil Marcel and Fred Kalo so their credibility and reliability is critical.

6.	Neil Marcel said that he and Fred Kalo were in the canoe crossing the sea in the area in front of Nagar Resort with the intention of travelling to a beach on the other side. He heard a rifle shot from Nagar Resort from a distance of about the Court room to the Reserve Bank Building. He said that he saw Treva holding a rifle. He said that he had known him since he was at school and he was sure it was Treva. He said he saw him before on the beach with a rifle and he said that he saw him this day before he heard the shot. He said that he was afraid that if they had stayed in the canoe, they would be a target to the shot of the rifle so he jumped out and he swam for the shore.

7.	He was then cross-examined and at the start of his cross-examination he was unwilling to admit that the statement that he made to the police was made in 2006 not 2003 and it was only when his age shown on the statement was pointed out to him that he acknowledged the statement was made this year. That confusion may have been the product of a misunderstanding with the questions but that is unlikely. He was adamant that all that they were doing was trying to cross from one shore to the other. When he was faced with the statement that said they were pulling fishing nets, he maintained that they were not fishing at all but he had no answer as to why there was a difference between what he said in his statement and what he said in Court. He also said in his statement that there were three of them on the canoe, he himself, Fred Kalo and Eric Fred but said that was not correct and that only him and Fred Kalo were on it. He could not explain as to why he had signed a statement that there were three of them on the canoe. He was vague as to the time or the weather and much else. The thing he was sure about was that Treva fired the rifle.

8.	Fred Kalo on the other hand was sure that there were three of them on the canoe. That was despite the fact that his brother Eric, the so called third man, was quite clear that he had no part at all on the canoe. Fred Kalo initially said that they were crossing the sea to go to another beach to collect some fish bait. He said he heard a rifle shot from Nagar Resort, jumped out of the canoe and swam to shore. He said that after the shot, he saw Treva standing by the bangalows holding a rifle. He says he jumped out because he thought Treva was shooting because he knew they were in a restricted area. 

9.	In cross-examination he was adamant that they were three and he clearly remembered that. When faced with the statement acknowledging that they were pulling fishing nets, he initially denied that they were taking fish but then admitted that there were nets in the canoe and then later he effectively admitted that they were actually taking fish and they were not entitled to but tried to justify that by saying that others were doing the same. He was adamant in saying that he saw Treva with the rifle after hearing a shot but he couldn’t said whether Treva had fired the shot. 

10.	When I consider the evidence of these two witnesses, I find that I am quite unable to rely on either of them. I have no doubt that Neil Marcel was deliberately lying when he denied that the occupants of the canoe were pulling fishing nets. I am sure of that because he acknowledged pulling fishing nets in his statement and did not explain the difference and also because Fred Kalo eventually admitted that that was what they were doing. I was also not impressed with the vagueness of Neil Marcel’s evidence in some respects. 

11.	Likewise I am satisfied that Fred Kalo initially tried to lie to the Court about the fishing net issue and that he was either lying or seriously mistaken about his brother being in the canoe. These were two witnesses whose evidence on the crucial factual issue, that is whether Treva fired a rifle shot from the shore that day, I am asked to accept as being reliable and credible. I am not prepared to do so.

12.	It is possible that there was an incident that day involving the defendant firing a rifle shot from the shore. I certainly do not rule it out given the evidence but the onus is on the prosecution to prove the case beyond reasonable doubt. The evidence of these two witnesses is unreliable and it does not satisfy me that the essential facts on which the prosecution bases its case on this charge have been proven.

13.	Is therefore not necessary for me to consider whether even if the facts alleged had been proven they would have supported the charge under s.114. That would have required first satisfying me that the firing of a rifle, perhaps in the air, was an unlawful act and the prosecutor did not provide the Court with legal argument as to why that would be an unlawful act; and secondly, it would have required the prosecution to satisfy me that in the circumstances a shot in the air might endanger life, health or safety of the public or any person. I therefore find the defendant not guilty on count 1.

14.	Count 2, this count is based on the evidence of the last three prosecution witnesses and the defendant himself gave evidence about it. The prosecution case is that Eric Fred and Bruno, who at the time was only 13 years of age, trespassed upon the plantation owned by the defendant’s parents; that Bruno climbed the coconut tree, took some coconuts from it and that the two of them then sat under the tree drinking the coconut juice when the defendant approached carrying a rifle, fired a shot over their heads and then said to them "Yu tufala i wantem kaikai bullet?". 

15.	The defendant in his evidence in substance acknowledged that that is what happened with the crucial difference that he denied saying the words I have mentioned and indeed denied that he said any thing at all. It is those words "Yu tufala i wantem kaikai bullet" on which the prosecution case on this count is founded.

16.	I turn first to deal with the evidence of Corporal Seule. He interviewed the defendant and took a statement from him on 12 November 2004 more than a year after the event. If he ever took any notes in a notebook and that was unclear, they were not brought by the officer to Court either because he did not have enough warning of the trial or because he had mislaid them in the time since. To make matters worse the prosecution were unable to produce the original signed statement and the photocopy was a photocopy of the front page only of the original even though there was a reverse page which contained at least the police officer’s signature. Nevertheless the defective copy was produced by consent. It did not assist the prosecution case.

17.	All that the defendant said in his statement was this: "Mi wantem mekem statement ia blong klarem nomo sei yes ol action ia i tru. Be mi no mekem blong minim blong suttum wan man or hem wetem masket". On the face of it that can be read as no more than an admission of shooting the rifle. It does not amount to an admission of saying the words relied on by the prosecution as the foundation of the charge. 

18.	In that respect therefore the prosecution is reliant on the evidence of Eric Fred and Bruno. They were adamant that the words I have mentioned were used and against their evidence there was a complete denial by the defendant of saying anything. Once more it is a matter of credibility. Having considered the evidence and watched the witnesses, I do believe the two prosecution witnesses on this point and my reasons will follow.

19.	Unlike the others they had no hesitation in admitting that they were trespassing and stealing fruit but what particularly influenced me was the description of the exact words that were used and the content of it. They were very vivid words, in English "do you two want to eat bullet". If the two witnesses were making this up, I do not think they would have made up a phrase like that. It has a ring of truth. It is entirely in context that the defendant, having fired a shot over their heads to frighten them and to warn them off, would follow up with a threat like that. 

20.	On the other hand the defendant’s evidence that he simply walked towards them, fired a shot over their heads but then said nothing at all and no one said anything at all is improbable. It does not ring true and I do not believe it. So I find those words were said. 

21.	I now consider whether the elements of the charge under s. 115 had been proved. S. 115 of the Penal Code says:

"No person shall knowing the contents thereof directly or indirectly cause any person to receive any oral or written threat to kill any person".

22.	I think that there is no doubt that if you make an oral statement to someone in their hearing and directly to them, you caused them to receive it directly and you know the content of what you are saying. So those elements are proven. It must also be proven that what was said amounted to a threat to kill the two witnesses. It was in the form of a question although I do not think that anyone expected an answer. I think the real meaning which the defendant intended to convey by using the phrase he did was "if you come on to this land and steal coconuts again, you will be shot". 

23.	It is well established that a conditional threat to kill, that is, if you do something I will kill you, is never the less a threat to kill. The words need to be in substance an expression of a threat to kill. Here I think that was what it was particularly when you look at the circumstances in which the statement was made, that is a shot had just been fired over the heads of these two young men. 

24.	For the same reason I think that the threat was intended by the defendant that it be taken seriously. So I find that charge proven and convict the defendant. 

25.	I want to say something about the delay in this matter coming before the Court. This delay was caused by the delay in the police investigation which is totally unacceptable. This complaint was made as long ago as 1 October 2003 and yet the defendant was not even interviewed until more than a year later. Then it was nearly another two years before anything was done to interview any other witnesses. They should have been interviewed before the defendant was, so that all the allegations could have been put to him. I want to make it clear that I am not criticising Corporal Seule, who was not the officer who had the charge of this case when the delay took place. In fact it was only him who got it to the stage where a charge could be laid. But the end result of the delay is that witnesses are giving evidence about events which happened more than three years ago now and that is unsatisfactory. Furthermore many of the reasons relating to the public interest for criminal prosecutions to be brought had gone, don’t exist any longer because so much time has passed. The whole point of the criminal justice system is to deal with situations when they arise justly, not to try and deal with them three years later. Apart from anything else many of the ordinary purposes of sentencing are no long applicable.

Dated AT PORT VILA on 14 October 2006

BY THE COURT

C. N. TUOHY
Judge