Public Prosecutor v Sope (No. 2) [1989] VULawRp 3; [1980-1994] Van LR 418 (4 January 1989)

[1980-1994] Van LR 418

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Criminal Case No. 9 of 1988 (No. 2)

PUBLIC PROSECUTOR

v

BARAK SOPE
MAXIME CARLOT
JOHN NAUPA
FRANK SPOONER
WILLIE JIMMY

[No. 2]

Coram: Chief Justice Cooke

Mr J Baxter-Wright, Public Prosecutor
Mr D Hudson and Ms S Bothmann Barlow for defendants

JUDGMENT

[CRIMINAL LAW - bail application]

On the 4th day of January l989, Mr Hudson, Solicitor assisted by Miss Bothmann, appealed to the Court against the decision of the Learned Senior Magistrate in refusing bail to the five accused persons.

Mr Hudson, in his submissions, referred me to Section 60 of the Criminal Procedure Code and urged me to interpret the word "may" in the section as "shall" thus making it mandatory for the Court to grant bail to the accused subject to conditions.

Mr Hudson referred me to the case of Julius v Bishop of Oxford (1874-80) LR 43 and King v Barlow (1879) 11 Ch 233. Both these cases are civil matters and bear no relevance whatsoever to the case before me. He concluded by submitting that the accused had a right to be released on bail subject to reasonable conditions.

Miss Bothmann who appeared with Mr Hudson said she appeared on behalf of Dr Spooner and also wished to make legal submissions on behalf of the other four accused. She endorsed the submissions of Mr Hudson that the word "may" in Section 60 of the Criminal Procedure Code should be read as "shall" and thus result in the release of the accused persons.

She contended that the principles set out in Section 60 of the Criminal Procedure Code follow the Bail Act in England and should be adopted. She enunciated the principles of the Bail Act which in general permitted bail to be granted to accused persons unless serious objections were raised and that the nature and seriousness of the offence was to be the criteria.

Miss Bothmann referred me to the case of R v Rose [1898] All ER 350. The latter case contained a joint Judgment which stated that bail is not to be held as punishment.

She then submitted that circumstances had changed since the application for bail on the 21st December 1988. Further that this was the last opportunity for the accused as they had no right to appeal from the decision of the Court. Miss Bothmann then stressed the conditions which could be imposed and to which the accused would comply. In particular she stressed the case of Dr Spooner and his excellent qualities.

I reject the submission of both Counsel that the word "may" should he interpreted to mean "shall". Such may happen in a civil case but certainly cannot be accepted in the case before me.

Both Counsel, in my opinion, quite correctly stressed what the Courts in England would do in normal criminal cases but here I am not dealing with a normal criminal case. I am dealing with an extremely serious case of persons who allegedly attempted to overthrow the legal Government of the country. The charges against them that they took an oath to engage in a mutinous or seditious enterprise and, secondly, did make a statement expressing a seditious intention. If I were dealing with a normal criminal case similar to those submitted to me by Counsel, I may well have considered that bail should be granted but this case is so grave and touches the very foundation of the lawful Government of the country that I must reiterate what I said in Criminal Case No. 10/88, Public Prosecutor v Ati George Sokomanu (unreported), that from the authorities examined by the Court, it is the seriousness of the act which is the relevant and important criteria for determination of the exercise of the discretion to grant bail.

Accordingly, as I hold the view that this case is one of the possible three really serious cases dealt with under the Penal Code, I dismiss the application for bail and remand the accused in jail until the 13th January 1989.

4 January 1989

FREDERICK G. COOKE
CHIEF JUSTICE