Public Prosecutor v Charley [1970] VUNHJC 6; Criminal (A) 11 of 1970 (28 October 1970)

JOINT COURT OF THE NEW HEBRIDES

JUDGMENT No. (A) 11/70
of 28th October, 1970.

CONDOMINIUM

v

FRED CHARLEY of EMAU

JUDGMENT

When the Court, composed of the British and French Judges and assisted by an Assessor, sat to commence this case the acting Public Prosecutor, Mr. CAROLAN, B.L., raised a point of law which went to the jurisdiction of the Court as composed. It was a novel point which, if established, would hold that in criminal proceedings the Joint Court assisted by one Assessor is not properly composed, lacks jurisdiction, and has been incompetent in criminal trials for the past thirty years. In support, Mr. CAROLAN referred to the Anglo-French Protocol of 1914 and the Exchange of Notes of 1939 between the two Powers. Having dealt with the Treaty between the two Powers resulting in the signing of the Protocol, he referred to Article 10 of the Protocol by virtue of which the Joint Court was established, and to Article 11. The relevant portions of these Articles read

ARTICLE 10
COMPOSITION OF THE JOINT COURT
1. A Joint Court shall be established consisting of three Judges, of whom one shall be President ........
ARTICLE 11
ASSESSORS
1. In the trial of criminal cases, the Joint Court shall be assisted by four Assessors, taken from the leading non-native inhabitants of the Group.
2. These Assessors shall be chosen by lot from two separate lists drawn up jointly by the High Commissioners or Resident Commissioners at the beginning of each year, and containing respectively the names of the leading dependents of either Power. If one of the leading inhabitants thus chosen is absent from Efate when the case is ready for trial, he shall be replaced by a leading dependent of the same Power who is in Efate and has been chosen by lot from one of the two lists drawn up.
3. The Assessors shall have a vote in deciding the question of the guilt of the accused, but a consultative voice only in deciding the sentence.
4. The public Prosecutor and each accused person may challenge peremptorily two of the Assessors."

He then passed to the Exchange of Notes of 1939 and quoted the first and second numbered paragraphs of it:-

(1) Notwithstanding the provisions of the Protocol of the 6th August, 1914, during the absence from the New Hebrides of the President of the mixed Tribunal, the British Judge and the French Judge sitting together shall exercise the jurisdictional powers conferred on that Tribunal by Article 12 of the Protocol.
(2)(i) They shall be assisted in hearings other than those relating to proceedings concerning immovable property by an Assessor entitled to speak and vote..."

It was the submission of Mr. CAROLAN that the effect of this Exchange of Notes on the Protocol was to require the Court, composed of the British and French Judges, to be assisted by the four Assessors provided for by Article 11 of the Protocol and an additional Assessor as provided for by this Exchange of Notes.