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Public Prosecutor v Kalosil [2015] VUSC 121; Criminal Case 73 of 2015 (2 September 2015)

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

Criminal Case N0. 73 of 2015

PUBLIC PROSECUTOR

V

MOANA CARCASSES KALOSIL
SILAS ROUARD YATAN
PAUL BARTHELEMY TELUKLUK
TONY NARI
SERGE VOHOR
JOHN AMOS
ARNOLD PRASAD
STEVEN KALSAKAU
TONY WRIGHT
SEBASTIEN HARRY
THOMAS LAKEN
MARCELLINO PIPITE
JONAS JAMES
JEAN YVES CHABOT
WILLY JIMMY TAPANGARARUA
ROBERT BOHN
THOMAS BAYER

Coram: Justice Mary Sey
Counsel: Mr. John Timakata for the Public Prosecutor

Mr. John Malcolm for:

Moana Carcasses Kalosil

Silas Rouard Yatan

Arnold Prasad

Jean Yves Chabot

Robert Bohn

Mr. Robin Tom Kapapa for:

Paul Barthelemy Telukluk

Steven Kalsakau

Marcellino Pipite

Willy Jimmy Tapangararua

Mr. Justin Ngwele for:

Tony Nari

John Amos

Sebastien Harry

Thomas Laken

Mr. Colin Leo for:

Serge Vohor

Anthony Wright

Jonas James

Mr. Nigel Morrison for:

Thomas Bayer

Date of Decision: 2 September 2015

RULING

1 This ruling relates to an application to have the plea and the trial dates vacated pending determination of Criminal Appeal Case No. 03/2015 filed on 1st September 2015 against my decision dated 27th August 2015.

1. The rights of appeal from the Supreme Court to the Court of Appeal are clearly spelt out in the Constitution of the Republic of Vanuatu as well as the Criminal Procedure Code (CPC) [CAP 136]. Section 50 of the Constitution states that "Parliament shall provide for appeals from the original jurisdiction of the Supreme Court and may provide for appeals from such appellate jurisdiction as it may have to a Court of Appeal which shall be constituted by two or more judges of the Supreme Court sitting together."
   
2. PART 11 of the CPC provides for Appeals from Magistrates' Court and Supreme Court in the following terms:
   

"APPEALS TO SUPREME COURT AND COURT OF APPEAL

200. (1) Any person convicted on a trial held by the Magistrates' Court may appeal to the Supreme Court:

Provided that –

(a) where such pehas pleaded guilty he may appeal only on the point of the lthe legality of the sentence

(b) there shall be no appeal against a sentence of fine not exceeding VT2,000 (notwithstanding a term of imprisonment in default of the payment of fine) where no substantive sentence of imprisonment has also been passed.

(2) Any person convicted on a trial held by the Supreme Court may appeal to the Court of Appeal:

Provided that where such person has pleaded guilty there shall be no appeal except–

(a) where the sentence exceeds imprisonment for six months; or

(b) on the point of the legality of the sentence only.

3. It appears to me that the operative words in Section 200 (1) of the CPC are "Any person convicted." Clearly, these provisions do not confer a right of appeal to the Court of Appeal in respect of interlocutory orders during a trial in criminal matters.
   

5 In my opinion, the intention of the Legislature is inexorably clear. The word "convicted" presupposes there would have been a judgment or final decision of a Judge but not a discretionary order or ruling given in an interlocutory matter such as the findings being complained about in my decision dated 27th August 2015.

6 This Court deems the said decision to be an interlocutory order from which no immediate appeal can be taken. An interlocutory appeal in criminal cases such as the appeal at issue has no basis in law.

7 Besides, as an interlocutory order, leave is required to file such an appeal and no such leave has been sought by the accused persons who seek to appeal.

8 It is conceivable that to allow the accused persons to launch an appeal against every interlocutory order which they perceive to be wrong would thereby render this trial prolonged on frivolous points by appealing on every point of objection. Undoubtedly, this would unduly undermine procedures, effective trials and would open gates to abuse of the process of court and due administration of justice.

9 The practice to be followed in case accused persons are dissatisfied with the trial Court's ruling in a criminal case is to appeal at the conclusion of the full trial and include in the grounds of appeal any complaints about wrong findings by the Court. Section 94 of the CPC clearly states that a convicted person is to be informed of his right of appeal as follows:

"94. At the ti any conviction byon by a court the presiding judicial officer shall, where a right of appeal exists, inform the convicted person of his right of appeal and theod of time within which he must lodge notice of appeal, and, and the judicial officer shall thereupon record that he has complied with the provisions of this section, sign such note and date it."

10 In the event the accused persons are convicted they can lodge any appeal they seek to lodge in the Court Appeal after this criminal trial is concluded. All their rights of appeal will be preserved until then and the appellants may exercise any of their rights enshrined in Section 200 of the CPC. Suffice to say this election would not be necessary should there be an acquittal of the accused persons at the conclusion of the trial.

11 I trust that defence counsel will acquaint themselves with relevant provisions relating to Appeals to the Court of Appeal as enacted by Parliament and refrain from causing unnecessary delays of this criminal trial by indulging in strings of appeals which have no legal foundation.

12 It needs to be mentioned that we must not lose sight of the fact that Parliament itself legislated the laws which are now been examined and considered in this criminal trial. The Courts did not enact the laws. All that the Courts are striving to do is to implement and enforce what Parliament has legislated.

13 Needless to say, stating the law is one thing; its application to the facts of a particular case is another thing.