Public Prosecutor v Malsoklei [2002] VUCA 9; Criminal Appeal Case 02 of 2001 (26 April 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CRIMINAL APPEAL CASE No.02 OF 2001

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

BERNARD MALSOKLEI
MICHEL MALSOKLEI
TIMOTHY MALSOKLEI
NORBERT MALSOKLEI
RAYMOND W. PIERRE
TIMOTHY SOVRINMAL
SOTER MALSOKLEI
Respondents

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

Counsel: Ms Miranda Forsyth for the Appellant
Mr. Hillary Toa for the Respondents

Hearing date: 22 & 26 April 2002
Judgment date: 26 April 2002

JUDGMENT

There was listed for this week’s session of the Court of Appeal an appeal by the Public Prosecutor against the decision of the Supreme Court sitting in Luganville on 23 November 2001 discharging each of the seven respondents after they were all found guilty of a charge of witchcraft contrary to Section 151 of the Penal Code Act [CAP.135], and Soter Malsoklei was found guilty of intentional homicide contrary to Section 106(1) of the Penal Code Act, and the other six respondents were found guilty of complicity to commit intentional homicide contrary to Sections 30 and 106(1)(b) of the Penal Code Act and all seven of the respondents were found guilty of rape contrary to Section 90 of the Act.

The Judge said that he adopted that position on sentence having regard to the fact that the respondents had each been more than twelve months in jail and on most occasions during which they were on bail they had complied with its terms.

The appeal against sentence was advanced on the basis that the trial Judge had erred in failing to impose a reasonable sentence on the defendants or had imposed a sentence which was manifestly inadequate for the offences which had been committed.

At the call-over on Monday we were advised that there was to be an application for leave to appeal against conviction. If leave were granted the conviction appeals must be heard before any question about sentence is considered. In the circumstances we advised counsel that a leave application had to be heard this week and the necessary documentation was duly filed. We acknowledge the prompt and comprehensive assistance which we have received from both counsel.

The grounds of appeal now advanced on behalf of each of the respondents are as follows:

1. That the learned trial Judge erred in law and in fact in holding that Channel Soksok was involved when the Prosecution had failed to prove that such a practice does exist, and Channel Soksok is a confirmed and proven spiritualist or established clairvoyant or medium, who possessed such powers to operate in the spiritual realm as he claimed himself to have experienced this encounter with the appellants.

2. That the learned trial Judge erred in law in failing to take into account the evidence called by the defendants/appellants, and even if he did very inadequate consideration was given to the alibi evidence called by the appellants.

3. That the learned trial Judge erred in law in failing, and/or giving sufficient weight to the un-rebutted alibi evidence called by defendants/appellants.

4. That the learned trial Judge erred in law in failing, and/or neglecting to warn himself over the uncorroborated evidence of Channel Soksok as the basis for convicting the defendants/appellants.

5. That the learned trial Judge erred in law in applying the Principle of Judicial Notice where he said at paragraph 4 of page 12, that “In this case we see clear evidence of the ritual that becomes a covenant initiating a person into the covenant relationship with the mastermind”.

6. The trial Judge erred in law in considering circumstantial evidence of the Prosecution witnesses by placing very little weight at all on what was said by the defendants/appellants as a proper application of the law on all the facts and circumstances of the case would already cast more than sufficient doubt on the Judge’s mind therefore giving him reason to acquit the defendants/appellants at the earliest possible moment when he first had the opportunity to dismiss the charges and acquit the defendant/appellants accordingly.

7. The trial Judge erred in law in failing, and neglecting to warn himself of the fact that should he feel that he was being influenced by some other personal knowledge which he might have had, or already had of the nature of the case before him which would prevent him from applying his mind fairly to the evidence before him and that having found that such a bias does exist, and/or would possibly more than likely does exist, then he should consider disqualifying himself, and let another Judge hear the case.

8. The trial Judge erred in law in failing to take into account the totality of the evidence before him and having failed to fairly apply his mind to the facts before him, had made it impossible for him to apply an impartial mind to the facts and the law before he arrived at a sound decision.

9. That in the circumstances the convictions were against the weight of the evidence before the Court.

It has to be acknowledged that there are serious and substantial issues which are raised. These seven young men were convicted of some of the most serious charges in the criminal calendar. Having carefully perused the judgment we are unable to conclude that these are issues which are without substance or are in any way trivial.

The application for leave to appeal out of time is advanced on the following grounds:

1. That the defence counsel was not able to contact nor receive instructions from the defendants/appellants as they have left Santo for Malekula after having been discharged by His Lordship Justice Saksak on 23^rd November, 2001.

2. That the defence counsel has not received instructions form the defendants/appellants whether or not they do want to appeal against the sentence or conviction.

3. Even if the defendants/appellants were contacted to come to either Vila or Santo, there is no guarantee that the defendants/appellants could afford the fare to come to meet appellant counsel on the dates and times when defence counsel was on tour in Santo, as their travelling to Santo on the first occasion was paid by the police.

4. There was never any contact from the defendants/appellants nor any instructions to the appellant’s counsel that the judgment should be appealed.

5. The implications that would follow the prosecution’s appeal are quite serious to such an extent that despite the fact that there are now no instructions from the defendants/appellants to actually lodge an appeal, they would be deprived of that right to justice should no appeal now be filed, especially where the appeal would be allowed for the prosecution upon an unchallenged conviction.

6. The nature of the case, and the manner in which the facts and the law have been misapplied in this case would in any event warrant that an appeal against conviction should be lodged, for the two reasons that:-

(a) upon the prosecution appeal being upheld, where the appellants’ conviction is unchallenged there would be severe penalties taking into account the nature of each count against each and every defendants/appellants;

(b) that the Court cannot possibly deal with the sentence first without considering the nature of the case and the grounds upon which the conviction is based.

7. The defendants/appellants have a genuine case based upon genuine grounds to be granted leave to lodge this appeal out of time.

8. Justice would require that before the actual sentence is looked at, that firstly given the nature of the offences charged that the Court must first look at and consider the grounds upon which the conviction was based, considering this is the first of its kind in this jurisdiction.

There is no dispute between counsel as to the requirement for appeals and an application for extension of time which are comprehensively dealt with in Section 200 and Section 201 of the Criminal Procedure Code Act [CAP.135].

Ms Forsyth for the original appellant vigorously opposed the application for leave to appeal out of time pointing to the importance of having finality and submitting that the problems raised on behalf of these seven young men are not sufficiently out of the ordinary to justify a deviation from the applicable rules.

Further she argued that there is not enough substance in the issues that are suggested as appeal grounds to justify an extension of time.

We are of the clear view that in this somewhat unusual case justice demands that no action is taken which could impede the proper and just resolution of all outstanding matters.

It is difficult at first blush to understand how people convicted of rape murder and witchcraft could be felt to deserve a term of imprisonment of nothing more than twelve months. On its face that is inconsistent with previous sentences and the maximum penalties available on all these charges.

There is in the evidence as recorded in the judgment of the trial Judge a number of extraordinary evidential assertions. There is also a total absence in the reasons for judgment of any discussion about matters which objectively from the outside would have been thought to have been of particular importance.

These seven men are at risk that on the hearing of the appeal against sentence they could face lengthy terms of imprisonment.

We are persuaded that it is essential that the delays in this case are assessed against the reality of their position on Malekula, the fact that they are so distant from legal advice and the human and natural reaction at having been convicted and discharged to just put the whole matter behind them. That leads us to conclude that although it is always regrettable when the procedural rules are not properly complied with, the interest of justice demand, in this case, that we grant leave to appeal against conviction.

Leave is accordingly granted to each of the seven respondents. Their appeal against conviction will be heard before the Court of Appeal convened in Luganville on Monday 21^st October 2002 at 9.00AM.

Full submissions in support of the appeal must be filed one month prior to that hearing date, Submission in opposition 14 days before the appeal date. To the extent that is necessary to advance the appeal, arrangements will have to be made for the record of evidence at trial to be available for the Court.

DATED at PORT-VILA, this 26^th DAY of APRIL, 2002

BY THE COURT

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