IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Criminal Appeal Case No. 06 of 2002

PUBLIC PROSECUTOR

-v-

ERIC PIERRE

Coram: Hon. Chief Justice Vincent Lunabek
Hon . Justice Bruce Robertson
Hon. Justice John von Doussa
Hon. Justice Daniel Fatiaki
Hon. Justice Roger Coventry

Counsel: Public Prosecutor for the Appellant
Mr Hillary Toa for the Respondent

JUDGMENT

On 24th June 2002 the plane from Port Vila to Norsup was late. It was carrying the Public Prosecutor. Defence Counsel, from the Public Solicitors Office, was on the same plane. The trial of the respondent/defendant Eric Pierre for intentional homicide was due to start at 8.30am that day. It had been put back to 1.30pm. Then the defendant and some of the witnesses were present. The lawyers were not. In the circumstances the judge considered the case should be dismissed. In his Ruling of that date he stated “I dismiss the charge against the accused and acquit him”.

In the Ruling the learned Judge noted the trial date had been fixed on 18th February 2002. He pointed out that the case was over a year old and referred to Article 5 (2) (a) of the Constitution which requires a fair hearing within a reasonable time. He referred to the fact that criminal proceedings are under the control of the Public Prosecutor and it is the prosecution that bears the burden of proof. He stated that “travelling on Court Circuits to outer islands is expensive and where clear fixtures have been made and clear notices thereof have been made, the Court must proceed…the prosecutor and defence Counsel ought to be at the appointed place of sitting a day before sitting”.

Having determined to dismiss on the basis of the non appearance of prosecuting counsel, the judge unnecessary then went on to consider the witness statements tendered at the Preliminary Inquiry. He concluded, “One of the elements the prosecution had to prove was intention or state of mind. From the witness statements available, the prosecution could not have proved that element to the required standard … any reasonable tribunal would arrive at the conclusion that there were doubts as to the guilt of the defendant’.

The Public Prosecutor appeals against both the ‘dismissal’ and ‘acquittal’. This Court has an affidavit of the Public Prosecutor that we have allowed to be read. It states she could not travel the day before due to family matters. The plane on the 22nd June was scheduled to leave Port Vila at midday. She had given instructions to a Police Prosecutor to request an adjournment from 8.30am to 2.00pm. The plane did not in fact depart until 2.00pm, due to mechanical problems. Attempts were made to inform the Court of this. The Public Prosecutor arrived at the Lakatoro Court at 3.10pm to learn the case had been dismissed. A request to have a hearing before the judge was rejected.

The Grounds of appeal are that:

1.	the Court erred in standard practice in dismissing the matter,
2.	the Court failed to consider the reasons for the non-appearance of the Public Prosecutor
3.	(need not be considered)
4.	the Court failed to inquire into the reasons for the delay.

In argument it was also submitted that the Judge had no legal authority to dismiss the case after going into the merits, on the basis of the witness statements.

This whole chain of events would not have occurred had Counsel ensured they were present near the Court the day before the hearing. That is an elementary piece of organization and is necessary for the proper progress of cases. Neither prosecution nor defence counsel did that. Family matters cannot be a reason for failing to attend Court on time unless they are urgent and serious in which case alternative arrangements must be made and the Court informed.

This appeal is brought under section 200 (4) Criminal Procedure Code – “The Public Prosecutor may appeal to the Court of Appeal on a point of law against any judgment of the Supreme Court exercising original jurisdiction”.

There is nothing on the file to suggest the information had been read to the defendant in the Supreme Court, nor a plea taken. That is the first step in the trial under section 160 Criminal Procedure Code.

The Supreme Court has power upon the application of the prosecutor or defendant, if the Court considers there is sufficient cause to postpone the trial, section 150 Criminal Procedure Code.

The Public Prosecutor in her affidavit states she instructed the police prosecutor at the Court to ask for an adjournment until 2pm. Defence counsel tells us from the bar that as he had an urgent matter in Luganville he also had requested that the matter be delayed until the afternoon.

At 1.30pm the case was called. No further messages had been received. Neither Public Prosecutor nor Public Solicitor were before the Court. When a prosecutor is not present the Judge has a discretion whether to adjourn or not. It is a discretion which must be exercised judicially after considering the reasons, if any, for the absence of the prosecutor, the number of any previous adjournments, the convenience of witnesses and how many times they have attended Court, the date of alleged commission of the offence, the nature and seriousness of the charge and any other relevant circumstances. The more serious the charge, the more carefully must that discretion be exercised and the more reluctant will the Judge be to refuse an adjournment.

If no plea has been entered and an adjournment is refused then the charge must be dismissed. That is not an acquittal. The charge may be brought again, although the greatest care would be required of the prosecutor in deciding to do that.

If a plea has been entered before the Judge and he refuses to adjourn then the trial continues. As there will then be “no evidence on which the accused person could be convicted”, a verdict of not guilty would be entered under section 164 (1) Criminal Procedure Code.

In the present case no plea had been entered. In refusing to adjourn, it was only open to the Judge to dismiss the charge. He could not acquit the defendant before the trial had commenced.

Although the frustration of the judge at the circumstances is understandable, we find he did not exercise his discretion correctly. The charge before him was one of the most serious, murder. This was the first time the matter had been listed for plea and trial. It must have been clear from the messages received and the fact that neither prosecutor nor defence counsel were present that there were transport difficulties.

The case was listed for Monday 24 June, and the rest of the week until Friday had been set aside for the trial.

The Judge, having dismissed the charge nevertheless went on to consider the evidence in the witness statements. He found that “… had the matter been given a chance to proceed to trial, any reasonable tribunal would arrive at the conclusion that there were doubts as to the guilt of the defendant. In such a case as this, an adjournment would be unnecessary …” He then went on to acquit the defendant.

Before a defendant may be tried before the Supreme Court a preliminary enquiry must be held under section 143 Criminal Procedure Code by a Senior Magistrate. Under Section 145 (2) “The Senior Magistrate shall decide whether the material presented to him discloses, if the same be not discredited, a prima facie case …” “The Senior Magistrate shall allow, but shall not require, the accused to make any statement or representation”, section 145 (3). If the Senior Magistrate finds there is a prima facie case he authorises the laying of the information and the case is sent to the Supreme Court. If he does not so find the accused is discharged. Such a discharge is not an acquittal.

It is open to a judge trying a case in the Supreme Court to consider if there is sufficient evidence on the face of the witness statements to support a prima facie case. However, this is a power which should not be exercised without the assistance of counsel. A Senior Magistrate will have already determined the question in authorising the information. Additionally care must be taken to distinguish what are “jury points” or questions as to the weight or reliability of the evidence. They are issues for trial. The exercise of this extraordinary residual jurisdiction could arise in the total absence of any evidential material on an essential element of the alleged crime but the circumstances will necessarily be truly exceptional.

In the case the prosecutor had no opportunity to be heard. For that reason alone the ‘acquittal’ based on the trial judge’s consideration of the witness statements cannot stand and furthermore the power could not be exercised in this case as the trial had not commenced by the taking of the defendant’s plea. Further, an accused’s ‘state of mind’ is normally established by irresistible inference from the total circumstances and requires the witnesses to be both seen and heard.

Accordingly we are satisfied that both the “dismissal” of the charge against the defendant and his “acquittal” cannot stand. The orders made in the Supreme Court are quashed and the matter is returned to the Supreme Court for hearing on Tuesday 14th January 2003 at 8.30am at Lakatoro, Malekula.

DATED at LUGANVILLE, this 24th DAY of OCTOBER, 2002.

BY THE COURT

V. LUNABEK CJ. J.
B. ROBERTSON J.
J. von DOUSSA J.
D. FATIAKI J.
R. COVENTRY J.