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Public Prosecutor v Emelee [2008] VUCA 18; Criminal Appeal Case 6 of 2008 (25 July 2008)
IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
CRIMINAL APPEAL CASE No.06 OF 2008
IN THE MATTER OF: AN APPEAL FROM THE SUPREME COURT OF THE REPUBLIC
BETWEEN:
PUBLIC PROSECUTOR
Appellant
AND:
CHRISTOPHER EMELEE
GUY BENARD
JOHN LESS NAPUATI
JOHN SIMBOLO
STEVEN KALSAKAU
Respondents
Coram: Chief Justice Vincent Lunabek
Justice John von Doussa
Justice Oliver Saksak
Justice Christopher Tuohy
Counsel: Mrs Kayleen Tavoa (Public Prosecutor)
Mr Robert Sugden for Christopher Emelee and John Simbolo
Mr Nigel Morrison for Guy Benard and Less John Napuati
Mr Jack Kilu for Steven Kalsakau
Date of hearing: 15 July 2008
Date of judgment: 25 July 2008
JUDGMENT
Introduction
- This is an appeal from a decision of Justice Bulu dated 14 March 2008 awarding costs under Section 101(1) of the Criminal Procedure Code Act [CAP.136] ("the Act") against the State in respect an unsuccessful criminal prosecution.
The Criminal Prosecution
- The respondents were charged with conspiring between 1 and 12 November 2003 to defeat the course of justice, an offence under Section
79(a) of the Penal Code Act [CAP.135]. Pursuant to Section 143 of the Act, it was the subject of a preliminary enquiry in the Magistrate’s Court. On
6 April 2004, after receiving extensive submissions from both the Public Prosecutor and counsel for the respondents, the Magistrate
gave a decision with written reasons that a prima facie case had been disclosed.
- The trial of the charge in the Supreme Court began on 1 September 2005 and lasted for approximately two and a half months. At the
end of the prosecution case, a submission of no case to answer was made on behalf of all the respondents. On 4 March 2006, Justice
Bulu gave a written judgment upholding the submissions and discharging all of them.
- In his decision, the judge reviewed the evidence called by the Prosecutor to establish the elements of the offence and the separate
bases on which the Prosecutor had attempted to establish those elements. He found that there was no evidence adduced to show either
that any of the respondents made an agreement with the others to carry out a scheme which had as its objective the defeat of the
course of justice; or that they had any intention to defeat the course of justice; or, indeed, that the course of justice was perverted
(which was a part of the prosecution case).
The Costs Decision
- The case that was put to the judge was that the prosecution of all the respondents was unjustified and/or oppressive in terms of Section
101(1). He recorded that he had had to reconstruct the background circumstances because of the destruction of the Court file in the
Courthouse fire in June 2007. We also suffer that handicap but it does not prevent us from coming to a decision on this appeal.
- After recording the rival submissions and the history leading up to the prosecution, the judge stated:
"21. I have considered the circumstances surrounding the commencement of the proceedings against the applicants (the present respondents)
and I am of the view that the decision to prosecute the applicants (is) justified.
22. In my view the real question, is whether it was justified to maintain the action to continue to prosecute the defendants when:-
(there followed a list of evidential deficiencies which arose during trial).
....
26. It is my view, that taking the evidence in its totality at that time, it would have been reasonable to reach a conclusion that
the prosecution case is no longer a strong case, but a weak case. Assessment of the case on a reasonable basis should point to the
case being stopped due to lack of evidence."
- That approach was repeated in paragraph 27 where the judge said:
"during the trial the Public Prosecutor has a duty in my view, to continually assess its case as evidence or lack of evidence unfolds
as the trial continues. In the proceedings before the Court in the conspiracy case, leading up to and including the "No case "hearing,
the Court’s finding as to evidence relevant for the prosecution’s case was very weak indeed".
- The formal orders made included a declaration that the respondents were entitled to their costs. The respondents were also ordered
to file submissions "as to the nature of costs" and the Prosecutor given an opportunity to respond.
Grounds of Appeal
- The Memorandum of Appeal sets out the following grounds:-
(i) the learned trial judge erred in concluding that the appellant was not justified in maintaining the prosecution against the respondents
(paragraph 22) after earlier concluding that the appellant was justified in commencing a prosecution against the respondent (paragraph
21).
(ii) the learned trial judge erred in concluding that a prosecution can become unjustified within the meaning of section 101(1) of
the Code due to rulings as to the admissibility of evidence proposed to be lead at trial (paragraph 22)
(iii) the learned trial judge erred in failing to identify with adequate precision that moment when the prosecution became unjustified
(paragraph 26).
(iv) the learned trial judge erred to the extent that he granted the respondents their costs incurred prior to the moment when the
prosecution became unjustified.
- It is convenient to deal at this point with the challenge to jurisdiction made by Mr Kilu. He argued that there was no right for the
Prosecutor to appeal against a decision under s.101(1). He pointed out that s.102 of the Act gives a power to appeal an order under
s.98 or s.99 awarding costs against an accused or a private prosecutor but there was no specific power in the Act for the Public
Prosecutor to appeal against an order under s.101(1). That submission is undoubtedly correct.
- The Prosecutor submitted that a specific power to appeal an order under s.101(1) is unnecessary because such an appeal is authorised
by s.200(4) of the Act which provides:-
"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."
- Mr Kilu’s answer to that is that, generally, there is no right to appeal against the exercise of a discretionary power unless
the Court appealed from was manifestly wrong. He relied upon s.26(2) of the Courts Act [CAP.122] to that effect. However the whole
of the Courts Act was repealed by s.72(1) of the Judicial Services and Courts Act [CAP.270] and the latter does not contain an analogous provision.
- The issue is simply whether the Prosecutor’s appeal raises a point of law. We think that it does. The point raised is whether
a prosecution can become unjustified or oppressive for the purpose of s.101(1) during the course of trial; or to put it another way,
at what point must a prosecution be assessed as unjustified or oppressive for the purposes of s.101(1). We think that this point
of law is fairly identified in the grounds of appeal set out in the Memorandum of Appeal.
Submissions on appeal
- The Prosecutor supported the judge’s finding that at its commencement (i.e. at the start of the trial) the prosecution was justified
but submitted that he was wrong in finding that it became unjustified once adverse admissibility rulings had been made. It was submitted
that this could lead to prosecutions being too readily abandoned for fear of a costs award which would lead to any right of appeal
becoming nugatory.
- It was further submitted that the judge was in error in failing to identify any point when the prosecution became unjustified and,
on the Prosecutor’s reading of the decision, granting costs prior to the moment when the prosecution became unjustified.
- Mr Morrison submitted that correctly read, Justice Bulu’s decision meant that the judge considered the prosecution unjustified
at the beginning of the trial. He also argued by reference to the evidence available that the quality of the evidence at the time
of laying the charge and at the commencement of the trial was such that the prosecution could never have succeeded. His view of the
judge’s decision was that it awarded the respondents the costs of the whole of the trial which, he argued, supported his view
that the Judge considered the prosecution unjustified at its commencement.
- Mr Sugden relied upon the submissions filed by him in the Supreme Court which although substantial did not directly address the point
of law before us. He also supported the submissions of Mr Kilu relating to jurisdiction.
- In addition to the jurisdiction point, Mr Kilu asserted by reference to the evidence against his client, Mr Kalsakau, that there was
no evidence against him right from the beginning i.e. from the time the charge was laid. On the basis that the Judge decided otherwise,
he sought to cross-appeal against his decision.
Discussion
- Section 101(1) of the Act provides as follows:-
"101. State not to pay costs
(1) Except where the Court is of opinion that a prosecution is unjustified or oppressive, the State shall not be ordered to pay costs
in case of dismissal of any charge;..."
- Two observations may be made. First, the legislature intended that in normal circumstances, no costs will be payable to a defendant
when a charge against him is dismissed. It is only in the exceptional circumstance that an unsuccessful prosecution is unjustified
or oppressive that costs may be ordered.
- Secondly, the subsection assumes that an award of costs can only be made on or after the dismissal of a charge when the prosecution
necessarily has ended. The use of the present tense in the section does not therefore sit comfortably. The subsection needs to be
read as though the past tense had been used: the prosecution was unjustified or oppressive.
- It is also to be noted that it is "the prosecution" which must be unjustified or oppressive not for example "the conduct of the prosecution" or "the continuation of the prosecution". The simple phrase the "prosecution (was) unjustified or oppressive" suggests that the subsection is directed towards an assessment at a specific defined point in the criminal process.
- It is necessary to consider s 101(1) in the context of the criminal process as a whole. It applies to all charges whether tried in
the Magistrate’s Court or the Supreme Court. There is no dispute that under s 101(1) the State can be liable in cases where
the Public Prosecutor is found to have brought a prosecution which was unjustified or oppressive at the outset. The Public Prosecutor’s
power to initiate a prosecution by laying a charge in the Magistrate’s Court or an information in the Supreme Court is not
subject to any challenge or control by the Court. Thus the ability to award costs against the State if the exercise of that power
is unjustified or oppressive is justifiable as both a constraint on that power and a protection for an accused if it is misused.
- However once a charge is laid the prosecution is under the ultimate control of the Court. Although it is only at the end of the prosecution
case that both the Magistrate’s Court and the Supreme Court have the duty to dismiss the charge if no prima facie case is made
out (see ss.135 and 164 of the Act), both Courts have a general and inherent power to protect their processes from abuse. This power
includes a power to safeguard a person from oppression or prejudice: Connelly v. DPP [1964] AC 1254.
- This power was discussed in more detail in DPP v. Humphreys [1977] A.C.1 where Lord Salmon said (at p.46C-F):
"I respectfully agree with [Lord Dilhorne] that a judge has not and should not appear to have any responsibility for the institution
of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of
policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive
and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of
the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed
and be put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective
substitute for the exercise by the court of the power to which I have referred".
- This power to stay for abuse of process is available to the Court throughout the trial process and may be exercised by the Court on
its own motion or on the application of an accused. No application was made by the respondents in this case for the judge to exercise
the power. Whether such an application would have been successful at any point during this trial in respect of any particular defendant
is not clear to us. The benefit of hindsight is not available to a judge faced with such an application. In a trial of this nature,
it will only rarely be clear that a prosecution case has become hopeless to the degree that it has become oppressive until its end.
- It is true that the Prosecutor has a power under s.29 of the Act at any stage before verdict to enter a nolle prosequi. Normally such
a power should be exercised once a Prosecutor has come to the conclusion that the case against an accused has become hopeless. But
it would be wrong for the exercise of that power to be constrained by the prospect of an adverse award of costs in the event that
the power is not exercised or is exercised too late. The protection for an accused is his right to apply to the Court for stay of
a prosecution which has become oppressive and vexatious to the degree that it amounts to an abuse of process.
- We have come to the conclusion that on a proper interpretation of s.101(1), the question for the Court is whether the prosecution
was unjustified or oppressive at the time it was initiated. A prosecution for an offence tried in the Supreme Court is initiated
when the Public Prosecutor files the information in the Registry of the Supreme Court: see ss.146(3) and 147 of the Act. A prosecution
for an offence tried in the Magistrate’s Court is initiated when the charge is laid.
- On our reading of the judge’s decision, there is no doubt that he considered that when it was initiated this prosecution was
not unjustified or oppressive. Some of the respondents dispute that. It was, however, an assessment which the judge was uniquely
placed to make, having presided over this lengthy trial from beginning to end. In any event no point of law arises in respect of
that part of his decision and we have no jurisdiction to disturb it.
Conclusion
- The result is that the appeal must be allowed because the judge in the Court below awarded costs on a basis that was not open to him
under s.101(1). It follows that Mr Kalsakau’s cross-appeal must fail. The declaration that the respondents are entitled to
costs against the State is quashed. There will no award of costs on this appeal.
DATED at Port-Vila this 25th day of July 2008
BY THE COURT
Hon.Vincent LUNABEK CJ
Hon. John von DOUSSA J
Hon. OLIVER SAKSAK J
Hon. Christopher Tuohy J
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