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Public Prosecutor v Fiakaifonu [2021] VUSC 79; Criminal Appeal Case 3383 of 2020 (8 April 2021)

PUBLIC PROSECUTOR

V

NAZARIO MARTIN PASCAL FIAKAIFONU

Respondent
Date of Hearing: 25^th March 2021
Date of Judgment: 8^th April 2021
Before: Justice Oliver Saksak
In Attendance: Mr Kevin Nathan for the appellant
Ms Viska Muluane for the respondent

JUDGMENT

Introduction

1. This is an appeal against the decision of the Magistrates Court dismissing Criminal Case 20/1825 in its entirety on 9^th November 2020.

Background History and Facts

2. The respondent was charged with 8 counts altogether.
   
3. The charges in counts 1, 2, 3, 4, 5 and 6 related to the respondent’s failures to pay his employee’s monthly contributions due for the months of February through June 2020 respectively. These charges were laid under sections 26 (1) and 50 (1) (c) of the Vanuatu National Provident Fund Act [ CAP.189] ( the Act).
   
4. The charges in Counts 7 and 8 related to the respondent’s failure to register his employees under sections 23 and 50 (1)(b) of the Act.
   
5. Prior to the charges being laid the respondent-
   
   • (i) On 18^th July 2019 registered his Company Fonu Enterprises with the Vanuatu Financial Services Commission (the VFSC).
     
   • (ii) On 25^th May 20 registered his company with Customs Department for a business licence.
     
   • (iii) On 28^th May 2020, sought the assistance of Sakary Nunbel a VNPF Officer, to apply and register his employees with the VNPF.
     
   • (iv) On 6^th June 2020, was cautioned by Laurent Nimisa, a VNPF Inspector.
     
   • (v) On 14^th July 2020 the VNPF filed the 8 charges against the respondent in the Magistrates Court in Criminal Case No.20/1825 for the offences committed between February and June 2020, representing an amount of VT 34,480.
     
   • (vi) On 22^nd July 2020, the respondent was summoned to appear for plea in the Magistrates Court.
     
   • (vii) He appeared in Court with only the summons but no charges, and no Preliminary Bundle of documents were served on the respondent.
     
   • (viii) The matter was adjourned on 22^nd July 2020 for the Prosecution to serve the respondent with the charges and the PI Bundle of documents.
     
   • (ix) He was summoned again on 6^th August 2020 to appear in Court on 9^th October 2020.
     
   • (x) On 18^th August 2020 the VNPF sent employees registration numbers to the respondent.
     
   • (xi) On 28^th August 2020 the respondent paid all the unpaid contributions to VNPF.
     
   • (xii) On 9^th September 2020 he paid the surcharges and penalties in the sum of VT 10,582.
     
   • (xiii) On 23^rd September 2020 respondent’s counsel wrote to VNPF requesting that all charges be withdrawn.
     
   • (xiv) On 9^th October 220 respondent’s counsel advised the Court all outstanding contributions had been paid and explained to the Court the non-payments were due to the late provisions of the employees registration numbers by the VNPF. As a result counsel for the VNPF requested for time to verify the information and sought a return date. The Court adjourned the matter and directed that Counsel for the VNPF file a memorandum to update the Court on the status of payments.
     
   • (xv) Counsel for the VNPF failed to comply with the Court’s direction.
     
   • (xvi) On 12^th October 2020a notice of plea was issued returnable for plea on 9^th November 2020.
     
   • (xvii) On 9^th November 2020 the respondent and his counsel appeared. Mr Nathan of Counsel for VNPF did not attend in time and without explanation. Following an oral application made by counsel for the respondent, the Magistrate dismissed all the charges against the respondent.

Grounds of Appeal

6. The appellant advanced 4 grounds of appeal that-

(a) In dismissing the charges there was no fair trial.
(b) Section 131 of the Criminal Procedure Code Act [ CAP 136] did not give power to the Magistrate to dismiss the case.
(c) The Magistrate acted on incorrect factual basis, and
(d) The Magistrate failed to consider the public interest of the case and to warn the Prosecution before dismissing the charges, amounting to displaying a lack of procedural fairness.

Submissions By Appellant

7. Mr Nathan submitted as follows-
   

(a) In relation to Ground 1-that it was unfair for the case to be dismissed at the management stage, after only 2 conferences. There was a delay of almost 3 months from 14^th July 2020 to 9^th November 2020 and that the delay was not an unreasonable delay. Counsel relied on Regina v Derby Magistrates Court [1995] UKHL 18; [1996] A.C 487.

(b) In relation to Ground 2, Counsel submitted that the Magistrate was in error when he dismissed the case under section 131 of the Criminal Procedure Code Act [ CAP 136] when the case had not yet gone to the trial stage. Counsel relied on PP v Ramuno Phelix & Mickey Phelix Crac 20/494.

(c) In relation to Ground 3, Counsel submitted it was done on wrong factual basis in that paragraph 3 of the Magistrate’s Order of dismissal states “that all payments has (sic) been done prior to the lodging of the official complainant.” Counsel argued this was an error as the payments were made after the charges had been laid.

(d) In relation to Ground 4, Counsel submitted there was a wider public interest in the matter warranting that the case be allowed to progress to plea and/or trial. Counsel argued that for the Magistrate to dismiss the case only 4 months after charges had been laid, and during the management stages, was an error.

8. Mr Nathan submitted the decision of the Magistrates Court should be overturned and the matter be reinstated and remitted to that Court for hearing.

Submissions By Respondent

9. Ms Muluane argued and submitted that the Magistrates Court had dismissed the case for reasons that-
   • (a) Counsel for the appellant had failed to attend conferences to progress the matter,
   • (b) The respondent had made payments of all outstanding contributions including surcharges, and that
   • (c) Counsel had failed to comply with the Court’s direction to file a memorandum updating the Court as to the status of the case.
     
10. In particular Ms Muluane argued and submitted as follows-
    

(a) In relation to Ground 1 that the offences charged were trivial as they involved only an amount of VT 34,980. Counsel in essence submitted Prosecution was not serious when counsel failed to attend hearings and provided no reasons for doing so.

(b) In relation to Ground 2, Ms Muluane submitted sections 127 and 131 of the Criminal Procedure Code Act provided clear powers to the Magistrate to dismiss a case even at the Management level. It was submitted the term “trials” used in Part 6 of the Act is capable of a wider interpretation to include hearings at the management level.

(c) In relation to Ground 3, Ms Muluane submitted the reason for non-payment of contributions in time was due to the late provision of Employee Numbers by VNPF. It was argued in doing so VNPF had contributed to the failure and as such they had come to Court with unclean hands. Counsel agreed the word ‘prior’ used by the Magistrate in paragraph 3 of the Orders under appeal may have been a typographical error.

(d) Finally in relation to Ground 4, Counsel submitted that upon the respondent paying the outstanding contributions and surcharges breach was no longer in issue. And in view of the fact VNPF and its counsel failed to comply with the Court’s order to file an update memorandum, that failure indicated VNPF had not taken any further and serious interest in pursuing the case to its end.

11. As such, it was submitted by the respondent’s counsel that the only course open for the Magistrate in the circumstances in which matters evolved was to dismiss the case and the charges, and in doing so, there was no error on the part of the Magistrates Court, and that the appeal should be dismissed.
    
12. The respondent sought a permanent stay of the proceeding.

Relevant Legal Provisions

13. Part 6 of the Criminal Procedure Code Act provides for “PROEDURE IN TRIALS BEFORE THE MAGISTRATES COURT”.

Section 127 of the Act provides:

“NON-APPEARANCE OF COMPLAINANT AT HEARING

127. If, in any inse in which a court has jurisdiction to hear and determine, the accused person appears in answer to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either release the accused from custody or remand him to prison, or take such undertaking for his appearance as the court shall think fit.” (Underlining for emphasis)

14. Section 130 of the Act provides:

“ADJOURNMENT

130. (1) Before or during ring the hearing of any case it shall be lawful for the court in its discretion to adjourn the hearing to tain time and place to be then appointed and stated in the presence and hearing of the part party or parties or their respective advocates then present, and in the meantime the court may allow the accused person to go at large or may commit him to prison, or may release him upon bail conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned.”