Walker v Public Prosecutor [2007] VUCA 12; Criminal Appeal Case 06 of 2007 (24 August 2007)

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

Criminal Appeal Case No.6 of 2007

BETWEEN:

KELL WALKER
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: The Honourable Justice Ronald Young
The Honourable Justice Edwin Goldsbrough
The Honourable Justice Oliver Saksak
The Honourable Justice Hamlison Bulu
The Honourable Justice Christopher Tuohy

Counsel: Mr. John Malcolm for the Appellant
Mr. Bernard Standish and Mr. Eric Molbaleh for the Respondent

Date of Hearing: 13th August, 2007.
Date of Judgment: 24th August, 2007

JUDGMENT

1. This is a criminal appeal and not a civil appeal as headed in the appellant’s documents.

2. It is an appeal against the conviction entered on 11th June 2007 and sentence imposed on the appellant by the learned Chief Justice on 14th June 2007.

3. The appellant was charged with the offence of threatening to kill contrary to section 115 of the Penal Code Act [CAP.135]. The section reads –

"THREATS TO KILL PERSON"

115. No person shall, knowing the contents thereof, directly or indirectly, cause any person to receive any oral or written threats to kill any person.

Penalty: Imprisonment for 15 years."

4. The appellant pleaded not guilty to the charge and the matter proceeded to full trial on 5th June 2007.

5. It was alleged by the prosecution that on or about 31st January 2007 the appellant directly threatened to kill a Mr. Glenn Frazer at the El Gecko Restaurant by saying that "...... they would cut off his ..... head."

6. On 11th June 2007, the learned Chief Justice returned a verdict of guilty after having satisfied himself that the prosecution had proven the appellant’s guilt beyond reasonable doubt. He deferred hearing sentencing submissions to 13th June.

7. On 14th June 2007 the learned Chief Justice sentenced the appellant to 2 years imprisonment but ordered that the appellant serve only the first 12 months. The other 12 months was suspended on good behaviour.

8. The appellant appealed against his conviction and sentence. The grounds of appeal are contained in the memorandum of appeal dated and filed on 25th June 2007 and which can be summarized as follows:-

A. In respect to his conviction, the appellant contended that the learned Chief Justice was wrong:-

(i) in failing to consider the lack of corroborative evidence;

(ii) to distinguish Aru v. Salmon (Case 13 of 1998)

(iii) in holding it acceptable to convict in circumstances where he "feels sure" of guilt.

(iv) in finding that the complainant got $2 million to act as a mediator when the evidence in cross-examination was that he acted as an introducer.

(v) in finding that the appellant had told Frazer to return the $ 2 million.

(vi) in concluding that the appellant was evasive and non-responsive.

(vii) in finding that Frazer took steps to protect his family and residence on no corroborative evidence.

(viii) in finding that it was an "accepted fact" that the appellant told Frazer he had brought in 5 power guns and if not for the trouble with Foster, Frazer would already be dead.

(ix) in holding there was overwhelming evidence of guilt when there was no corroboration.

(x) in not giving sufficient weight to the cross-examination of Frazer who told the Court:–

(a) He was a party to a sale of shares in a BIV shell company for $60 million.

(b) He had obtained $2 million to be the "introducer".

(c) He had taped one of the meetings and did not disclose it to the defence.

(d) He made notes of the meetings but provided only one page.

(e) He was evasive and could not even read his own notes.

(xi) The documents provided were not proof of anything and were not corroborative evidence.

(xii) The learned Chief Justice had failed to fully consider the evidence of Rob Lofting.

B. In respect to his sentence, the appellant contended that the Court had failed to consider –

(i) the appellant’s health and age

(ii) previous sentencing authorities involving weapons and threats and actual assaults as well as concurrent unlawful activity.

9. We deal first with the appeal against conviction. Mr. Malcolm submitted that where, as here, the evidence consists of one person’s word against another a Judge should not find the charge proven beyond reasonable doubt in the absence of corroborative evidence to support the prosecution case. We reject that submission.

10. The legal position at common law with regard to corroboration is that generally one witness is sufficient in all cases at trial. See DPP v. Hester (1972) 57 Cr. he then was. (page 14). App. R.212, H.L per Lord Diplock at p.24. see also Public Prosecutor v. Sano Alvea [1996] VUSC 18; (Cr. 10 of 1996) per Lunabek, J as he then was . (page 14).

11. In any event judges are required to heed the warning of the danger of convicting on uncorroborated evidence of witnesses who fall into one of the following categories:

(a) accomplices; or

(b) complainants n sexual offences; or

(c) the unsworn testimony of a child.

See Davies v. DPP [1954] A.C 378 Cr. App. R. 11 for accomplices and R v. Trigg (1963) 47 Cr. App. R. 94 for sexual offences, and also Public Prosecutor v. Sano Alvea (Supra) at page 13.

12. The present case clearly does not fall within any of the above categories. That being so, Aru v. Salmon (Cr Case 13 of 1998) is clearly distinguishable on its facts and the learned Chief Justice was correct in distinguishing it.

13. The legal position as regards corroboration in Vanuatu was discussed at length in Public Prosecutor v. Mareka [1992] VUSC.10 [1980-1994] V.L.R.613 by the then Chief Justice Charles Vaudin d’Imecourt. His Lordship made a thorough review of numerous English authorities, including those referred to in paragraphs 10 and 11 of this judgment.

14. The law as regards findings of fact made by a trial judge based on the credibility of a witness is as set out by the High Court of Australia in Devris v. Australian National Railways Commission [1992] HCA 41. The Court said:

"10. More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on credibility of a witness, is not to be set aside because an appellate Court thinks that the probabilities of the case are against even strongly against that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge had failed to use or had palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was "glaringly improbable." (our underlining).

15. Applying the common law as part of the law in Vanuatu the position may be summarized as follows:-

(a) There is no requirement of law that there must be corroborative evidence of a vital witness’s evidence before a judge can be satisfied beyond reasonable doubt an offence has been proven.

(b) For some particular circumstances (eg. child complainants, accomplices and sexual crimes) trial judges may need to warn themselves of the danger of convicting an accused person on the uncorroborated evidence of the complainant. However the judge may do so conscious of this warning.

(c ) Where the offence is one which requires the judge to consider the corroboration warning the judge must firstly decide if the evidence in law is capable of being corroborative evidence and it is then for the judge to decide its value in the particular case.

16. We therefore conclude in this case that no corroboration warning was required by law. We consider the appellant’s real point here was that the Chief Justice could not have been satisfied beyond reasonable doubt that the threatening words were spoken when only two persons were present and there was nothing to choose between their evidence. As to the latter point the Chief Justice identified why he accepted the evidence of Mr. Frazer and why he rejected the evidence of the Appellant. He therefore found there were reasons to choose between the two witness’s evidence. This was properly his function as the trial Judge and he properly carried out this task.

17. The appellant then complained about other factual findings by the learned Chief Justice which we deal with in the following manner:-

(a) That Frazer was paid $2 million to act as a mediator when the evidence in cross-examination was that he acted as an introducer.

Upon careful examination of the judge’s notes we find that the reverse is true. Frazer indeed introduced Clare to the Japanese investors but he was paid $2 million to act as a mediator. That was the evidence. In any event this evidence was not directly relevant to proof of the crime.

(b) That the appellant had told Frazer to return the money.

The learned Chief Justice heard that evidence and believed the evidence of Frazer as the truth. In the judgment at page 5 the learned Chief Justice said:

".......... He said the accused told him the Japanese lost confidence. They need their money back ....."

(c) That the appellant was evasive and non-responsive.

Mr. Malcolm took us to the judge’s notes to show that the appellant was consistent in answering the same question asked 10 times to which he replied that he was the beneficiary of the moneys paid to Clare and Frazer.

We do not agree with Mr. Malcolm. Upon careful examination of the notes we find that the appellant was asked 10 different questions but he gave the same answer to each of them and that was that "I am or was the beneficiary". The Chief Justice was entitled to view these answers as evasive and non-responsive.

(d) That Frazer took steps to protect his family and residence on no corroborative evidence.

We have discussed the legal position as regards corroboration earlier in this judgment.

(e) That it was an accepted fact that the appellant had told Frazer he had brought in 5 power guns and if not for the trouble with Forster, Frazer would already be dead.

We think the first line of the first paragraph of page 14 of the learned Chief Justice’s judgment indicates his understanding of the facts as accepted by the parties at the time. We accept it may not necessarily be true that the parties had agreed those facts.

Mention of 5 "power" guns may have been a misunderstanding of the word ‘fire’ power guns. Earlier in the judgment at page 7 and second paragraph the evidence is stated as follows:-

".......He confirmed Walker told him they took fire power guns in Vanuatu and .........."

Although the Chief Justice may have misunderstood whether there was such an acceptance we do not consider this misunderstanding would have had any effect on his conclusions.

(f) That insufficient weight was given to the evidence of Frazer in cross-examination.

Again we reiterate that the learned Chief Justice made a finding of credibility and preferred the evidence of Frazer. (see Davies v. Australian National Railways Commission)

18. For the foregoing reasons, we agree with the submission by the Public Prosecutor that the Appellant has not established any error that goes to his conviction. Accordingly this part of the appeal fails and is dismissed.

19. We now deal with the appeal against sentence. Two grounds were advanced:-

(a) That there had been a failure to consider the appellant’s health and age.

The Appellant received a sentence of 2 years imprisonment of which 1 year was suspended. The Chief Justice acknowledged the appellant’s age (60 years) and health in his sentencing remarks. There was therefore no failure to take these factors into account.

(b) That there had been a failure to take into account previous sentencing decisions in circumstances involving weapons and threats and actual assaults as well as concurrent unlawful activity. The two cases referred to were Public Prosecutor v. Bob Manses Cr. 39 of 2005 and Public Prosecutor v. Mahit Jackson Cr.69 of 2005. In the first case the accused was sentenced to 2 years imprisonment with 3 months deducted leaving the balance of 21 months but that sentence was suspended on a good behavior bond. In the second case the accused was sentenced to 30 months initially and reduced to 18 months allowing for his pleas in mitigation without suspension.

20. By comparison there is not much difference or disparity between the sentences in those two and this case. The fact that there were no weapons available on the person of the accused in this case does not matter.

21. The authority of an appellate court in an appeal such as this is well settled. In the case of Skinner v. The King (1913) 16 CLR 336 at 340 the High Court of Australia said:

"....... A Court of Criminal Appeal is not prone to interfere with the judge’s exercise of his discretion in apportioning the sentence and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate....." (emphasis added)

22. We therefore ask ourselves was the sentence of two years imprisonment with one year suspended manifestly excessive? In our opinion and in the circumstances of the case and of the appellant, we do not agree that the sentence imposed by the learned Chief Justice was manifestly excessive. This second part of the appeal must also fail and is dismissed.

23. The appeal is dismissed.

24. The sentence imposed by the sentencing judge is upheld accordingly.

DATED at Port Vila this 24th day of August, 2007.

BY THE COURT

Hon. Ronald Young, J
Hon. Hamlison Bulu, J
Hon. Edwin Goldsbrough, J
Hon. Christopher Tuohy, J
Hon. Oliver Saksak, J