Koroka v Public Prosecutor [2007] VUCA 3; Criminal Appeal Case 02 of 2007 (4 April 2007)

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

Civil Appeal Case No.02 of 2007

IN THE MATTER OF:

An Appeal from the Supreme Court of the Republic of Vanuatu

BETWEEN:

NADEGE KOROKA
Appellant

AND:

THE PUBLIC PROSECUTOR
Respondent

Coram: Justice Bruce Robertson
Justice Hamilison Bulu
Justice Christopher Tuohy
Justice John Mansfield

Counsel: Mr Felix Laumae for the Appellant
Ms Kayleen Tavoa for the Respondent

Date of Hearing: 2 April 2007
Date of Orders: 4 April 2007

JUDGMENT

Introduction

Following a trial which extended over nearly two weeks, on 8 December 2006 the Chief Justice found the Appellant guilty of Intentional Homicide contrary to Section 106(1)(a) of the Penal Code Act [CAP.135]. On the 9 December 2006 she was sentenced to an effective term of 10 years imprisonment.

Ms Koroka appealed against conviction on the basis that:

First, the judge wrongly rejected a submission of no case to answer.

Secondly and more generally the conviction was unsafe in that it depended upon circumstantial evidence which was not corroborated and that the prosecution failed to put before the Court independent or objective evidence to support the inferences which it was inviting the Court to draw.

Further it was submitted that the learned Judge has eroded the statutory right to silence by the attitude he adopted to the absence of evidence from the Appellant.

The appeal against sentence was advanced on the basis that the sentence of 10 years was manifestly excessive having regard to the age and circumstances of the Appellant.

Leave to appeal out of time

The appeals should have been filed by 22nd and 23rd December 2006 (Section 201(1) of the Criminal Procedure Code [CAP.136]. They were not filed until 19 February 2007. There is a power under section 201(6) to extend time. The respondent does not oppose and in all the circumstances we are satisfied that leave should be granted and the appeals were heard on their merits.

The nature of the case

The Chief Justice properly identified that there were three essential elements in the offence of intentional homicide:

(a) an intentional act;

(b) which was unlawful; and

(c) the unlawful act caused the death in question

It is common ground that the deceased died as a result of an unlawful act intentionally inflicted upon her. The sole question at trial which whether it was the Appellant who did it.

The prosecution introduced evidence from 15 witnesses all of whom except the father of the deceased gave oral evidence and were subject to cross-examination. There was no evidence called by the defence, an issue to which we will return.

No case to answer

On the no case to answer submission the Chief Justice had regard to decisions of this Court in PP v. Samson Kilman & Ors, Criminal Case No.17 of 1997; and PP v. Siba Yamanga and Lichie David, Criminal case No.7 of 1999. His Lordship said that in essence the test to be applied was:

"On the strength of the evidence so far laid before the Court, whether a reasonable Court could convict the accused person, as a matter of law on the strength of such evidence."

The Judge identified the evidence which was available which put the Appellant in the area of the crime scene within the hour before death occurred.

He had regard to the fact that there was evidence that a woman was assaulting another woman, between a bedroom and a living room in the house of Esmie Roy.

He considered the evidence that the Appellant was at the Sokale Nakamal about the relevant time and her unusual behaviour while there.

He noted the evidence of blood spots near where she had been standing and a blood smear in the toilet room of the nakamal. He recognized the limitations of this evidence as there was no proof that it was the Appellant’s blood (or even that it was human blood) but when this was considered alongside the recounting of events by other people in the area and as the descriptions of the assailant were inconsistent with the other people who were in the vicinity at the time and he concluded there was a case to answer.

We agree that such a conclusion was available. There was evidence to support each of the essential ingredients and at this juncture the weight is not assessed.

There is a legal issue as to whether after trial there is a proper appeal point as to whether the decision of the Judge on a no case to answer submission was correct. It need not to be addressed in the context of this case as we are satisfied that there was a foundation for the Judge’s decision and there was no further evidence called in the case.

The fundamental framework

In any criminal case the crux is whether the prosecution has proved beyond reasonable doubt the essential elements of the offence. Where there is available evidence which would exonerate or limit responsibility of an accused person that means the Court must consider whether the denial or explanation might reasonably be true. If it could be, then the charge has not been proved beyond reasonable doubt.

The fact that the proof is by the way of circumstantial rather that direct evidence is a difference without a distinction. There are times when the combined effect of relevant circumstantial matters will be overwhelming and compelling even in the absence of a witness who can provide an eye witness account. Such a person might be mistaken or have faulty recollection. The Court takes the totality of the available evidence bearing in mind always the onus of proof and the standard of proof.

What had to be proved

In this case there was only one issue namely identity. An intentional homicide was accepted as having occurred. The entire trial issue (and now the appeal point) is whether it has been proved beyond reasonable doubt that it was this Appellant who committed the offence.

The Court had the benefit of extensive and comprehensive submissions from both counsel. There was no question about the applicable legal principles. Each counsel accepted the Chief Justice had correctly identified the law. Mr Laumae argued only that in its application there was error.

He submitted that the appeal must be allowed because there was not sufficient evidence to make the inferences which were necessary to establish guilt in the absence of scientific evidence, Further he claimed there were serious inconsistencies between times given by various witnesses which created doubt about what happened and as importantly when it happened.

The trial process

It was only in the course of the appeal hearing that the Court came to see what in fact was the core of the case, which was quite different from what counsel had been arguing.

It is accepted that about 7.00pm on the night of the death (which the medical evidence suggested occurred between 7.00 and 7.30) the appellant was at the Sokale Nakamal in the vicinity of Esmie’s house where the death occurred. The crucial issue was whether the attack on Cathia had already occurred at the time that the appellant went to that nakamal.

It was apparent from the Chief Justice’s judgment that the defence had initially said they were going to call four witnesses. After a short period counsel advised the Court they would only call one. Eventually they called none.

Whether the Chief Justice knew why those decisions where being made or what reasons were involved we can not know. However before us counsel from the bar table agreed that what occurred was that when Mr Laumae indicated that he was had going to call what were effectively three witnesses as to alibi (these were the mother of the appellant and two aunts) Ms Tavoa made clear to Mr Laumae that she vigorously objected to them giving evidence because they had been in court throughout the trial. This was an available position for a prosecutor to take but it was not a reason for the defence counsel to alter the position of his client. Each lawyer has an interest to advance and protect. Unless counsel know that they want to do is wrong or unachievable they must stead firstly stick to their positions.

Comment that the prosecutors’ concern was understandable.

We are told that the atmosphere in the court was by this stage of the trial not good. Eventually Mr Laumae in face of the objection by the prosecution, indicated he would not call these witnesses.

This raises a most serious question about counsel’s conduct of the defence of this appellant.

The court heard much evidence about what happened on the Sunday afternoon but most of it appears to be entirely irrelevant to the simple issues around which the case must turn.

What is vital is the available evidence as to where Nadege Koroka was between 6pm and 8pm on the night. We immediately acknowledge that there are inconsistencies in the times given by witnesses. When you are dealing with people not wearing watches and without any independent objective measures about which time can be determined, that is not surprising.

Neither Counsel can remember whether the order made at the beginning of the trial for the exclusion of witnesses applied only to prosecution witnesses, but whatever the situation it was a fundamental error for defence counsel to give in to the prosecution objection when he wanted to call witnesses to give evidence which was about this crucial point.

If there was objection by the prosecution to this evidence being called the Chief Justice should have been advised and his ruling requested. Without that occurring we must conclude that a serious breach of process occurred and an unsafe or unsatisfactory decision emerged.

In any circumstantial case the trier of fact has to determine what irritable inferences flow from the totality of the available evidence. It is now common ground that there was evidence which the appellant wanted before the Court which her counsel did not take every possible steps to get before the Court.

They fact that Counsel also gave away calling the photographer seems to have been something of a side issue which was of no serious consequence. But the other 3 witnesses were of the prime importance. Their testimony went to the central point in the case.

The law in this country as in many others preserves the right to silence. Whether it should be exercised calls for a careful assessment of the evidence which exists and which needs to be countered. If an accused is not going to give evidence, raising mattes through other witnesses may be necessary or appropriate.

This did not happen and there was no basis to challenge the inferences the prosecutor advanced. Giving away the calling of the 3 defence witnesses was a radical and potentially far reaching error.

We are confirmed in this view as to the consequences of not calling this evidence when the totality of the circumstances are considered. Three days after the death of Cathia a man was charged with non-intentional killing. After he had been held by the Police for over six weeks he was released and the prosecution thereafter contended that the appellant was the killer.

Although motive is never an essential element in the proof of a crime, the absence of any rational explanation in the evidence as to why this seventeen year old girl would kill a fourteen year old girl with whom she had no particular connection is a troubling feature.

Where the appellant was early on the evening of the killing was of the utmost importance. Both counsel accept that she wanted evidence from 3 others admitted at trial about where she was at the relevant time.

No blame can attach to the judge for this problem which is now exposed because he was simply advised that the witnesses were not going to be called.

Every criminal trial must have integrity in its process. This was a trial of a young woman on one of the most serious offences known. We are forced to the conclusion that something went seriously wrong in process and the conviction is
as result unsafe and unsatisfactory. The appeal must be allowed and there will be an order for a re trial.

Counsel who represents Ms Koroka must have sufficient experience and background to be able to undertake such an important and responsible task including providing proper advice as to what defence evidence needs to be available and how that will be provided.

Conclusion

As there will be a further trial it is not appropriate for us to comment further on the particular evidence. The applicable law is agreed by all to be as stated by the Chief Justice and it will apply to whatever evidence is called in the further trial.

There could be an issue about the evidence of interview. The Chief Justice excluded all of this and set out some guidelines to cover the position so that one person is not both a witness of fact and the reporter of a police interview.

The position in this case may need reassessment as it appears that the defence proposes to give evidence about the appellants’ whereabouts at critical times. If evidence from the appellant or other witnesses is inconsistent with what the appellant said to the police at interview, this may be a reason for the admissibility of that material being reassessed.

Result

The appeal is allowed, the conviction is quashed and a new trial is ordered. We make no comment on the sentence which is automatically vacated.

DATED at LUGANVILLE this 4th day of April 2007.

BY THE COURT

J. Bruce ROBERTSON J
Hamilison BULU J
Christopher TUOHY J
John MANSFIELD J