Public Prosecutor v Withford [2006] VUCA 14; Criminal Appeal Case 07 of 2006 (2 October 2006)

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

Criminal Appeal Case No. 07 of 2006.

BETWEEN:	PUBLIC PROSECUTOR
	Appellant
AND:	DONALD WITHFORD
	Respondent

Coram: Hon. Justice J. Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel W. Fatiaki
Hon. Justice Hamlison Bulu
Hon. Justice Christopher. N. Tuohy

Counsel: Mr. Lent Tevi for Appellant
Mr. Daniel Yawha for Respondent

Date of Hearing: 02 October 2006
Date of Decision: 02 October 2006

ORAL JUDGMENT

This is an appeal against an order made by Saksak J in the Supreme Court on 2 August 2006 discharging the respondent on a criminal charge.

The approach on the application to strike out criminal proceedings because the State is for some reason not in the position to proceed was extensively considered by this Court in Public Prosecutor v Pierre 2002 VUCA 30; CA06-02 (24 October 2002).

The appropriate principles were restated and applied by the Court in Public Prosecutor v Emelee 2005 VUCA 11 Criminal Appeal Case 02 of 2005 (6 June 2005). They are common place in various countries, for example in Fiji DPP v Kalou [1996] FJHC 130.

On the basis of those authorities there can be no question but that this appeal must be allowed and the respondent required to face trial.

There is no dispute about the chronology of what occurred:

• 14 December 2005 the house of George Korka which was lived in by this caretaker was destroyed by fire;
  
• 12 January 2006 Christopher Godfrey was charged with arson;
  
• 19 January 2006 Donald Withford was charged with inciting and soliciting arson.
  
• 1 February 2006 a preliminary inquiry conducted in the Magistrates Court. A prima facie case was found and Mr. Godfrey and Mr. Withford were committed to trial in the Supreme Court;
  
• 8 February 2006 both appeared before Saksak J in the plea day list. Mr. Godfrey pleaded guilty and Mr. Withford not guilty. The case was adjourned for trial until 15 March 2006.
  
• 15 March 2006 counsel who had been acting for both men advised the Court that there was a conflict of interest and that new counsel would be required for Mr. Withford.
  
• 9 May 2006 (the date set for Mr. Withford’s trial), new counsel was not present and the trial was adjourned to 29 June 2006.
  
• 29 June 2006 Mr. Withford had still not secured alternative representation and although the State was ready to proceed the Court adjourned the matter until 2 August 2006. The judge noted the file "this be the final adjournment".
  
• 2 August 2006 Sergeant August Peter applied for an adjournment of the trial on the basis that:
  
  • (a) the Public Prosecutor or a legal officer was not available due to serious cases in Vila;
    
  • (b) the witnesses for the prosecutor had not been directly served
    

In what was an extraordinary bold step in light of the history of this matter when Mr. Yawha opposed the application on the basis that the order of 29 June 2006 stated that "this be the final adjournment".

He encouraged the Court to give those words a literal meaning and interpretation. In light of the previous adjournment which had been at the request of and for the benefit of his client, that appears somewhat unusual.

The Court decided that the order of 29 June 2006 should be given its strict literal interpretation and so the application for adjournment was refused. The State was not able to proceed and the order for dismissal was made.

The State always has an obligation to ensure that it is in a position to proceed in accordance with the timetable set by the Court. If there is an occasion where an adjournment is required then application should be made in advance and the Court’s reaction ascertained. Leaving things to the last moment as occurred here is quite unsatisfactory.

This sort of problem will happen from time to time as the earlier cases mentioned demonstrate.

When it does the Court must make a rational evaluation of the total circumstances. Mr. Withford is a man charged with a serious offence. A Magistrate has found there was a prima facie case. It may be as Mr. Yawha has suggested that at his trial he may not be convicted. But as he accepts it is not a statutory requirement for corroborative evidence to be available. The absence of it may lead to the Court being left with a reasonable doubt but that is not relevant to whether he goes on trial.

When the Court faces an adjournment application it has a discretion but it is one which must be exercised in a judicial manner. Simply making a knee-jerk reaction to some words made in a different context on a previous occasion is not delivering justice.

It is undoubtedly in the community interest, the interests of the man whose home was destroyed and the wider interest of justice that Mr. Withford should face trial in respect of the prima facie case which has been found against him. There was no prejudice or detriment to him. A short adjournment would not have placed him in any unreasonable disadvantage. He was on bail. Although that is a restraint and should not be treated other than as an imposition it is just one factor.

All the relevant factors had to be weighed and a proper assessment of the competing interests evaluated. When that occurs there cannot be any doubt that the adjournment should have been granted and the matter given a new fixture date.

As a result of this attitude taken by Mr. Withford and his advisors he has been left with this matter hanging over his head for the two months from the 2 August until today and for however long it takes to find a new hearing date. He is the author of that disadvantage and cannot be heard to complain about it.

The appeal is allowed. The orders made are quashed. The trial of Mr. Withford is to advance at the earliest possible date in the Supreme Court. The case is to be listed for mention on Monday the 9 October 2006 in the Court at Luganville at 8.30am. That is not a trial date but for setting the trial date for this case. Mr. Withford is ordered to appear at that time and bail pending trial can be considered.

Dated at PORT VILA on 02 October 2006

BY THE COURT

Hon. J. Bruce Robertson J.
Hon. John. W. Von Doussa J.	Hon. Daniel Fatiaki J.
Hon. Hamlison Bulu J.	Hon. Christopher N. Tuohy J.