Public Prosecutor v Vakalalabure [1998] VUSC 22; Criminal Case No 059 of 1997 (23 June 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA

CRIMINAL JURISDICTION

CRIMINAL CASE No. 59 OF 1997

PUBLIC PROSECUTOR

-v-

(1) TEVITA VAKALALABURE
(2) EMOSI KOROI
(3) SAMUELA RICA

Coram: ActinefChief Justice Vincent Lunabek J.

Counsel: Mr Willie Daniel for the Public Prosecutor
Mrs Susan Bothmann Barlow for the Defendant

RULING

On 22nd June June 1998, whilst cross-examining the Defendant Tevita Vakalalabure, Mr Daniel Willie, on behalf of the Public Prosecutor, applied orally, seeking leave of the Court to re-call a prosecution witness, namely, Jean Paul Ture to rebut a piece of evidence given by the Defendant/witness Tevita Vakalalabure.

The Prosecution submitted, s/he was never informed of any possibility of any alibi whatsoever. The Prosecution was put in the dark.

The Prosecution’s position, it is said is, to prove that the Proud incident had happened and the Prosecution have people who allegedly identified the 3 defendants. That is basically what the Prosecution case is all about.

The Prosecution says, for the Defence to call evidence to say the defendants were at different places at different times and the Defence’s case as it stands now shows that the time factor is important to prove this case.

The relevance of the time factor, here, is that, under cross-examination, the defence is calling one of the Defendants, Tevita, to give evidence about other times than those the Prosecution relies upon to prove its case. The Prosecution says it was put in a difficult position since it has no opportunity to see how this case will go.

The Defence submits that this is an extraordinary submission for the Prosecution. The Prosecution is putting his case and cannot re-open its case. There is no question of alibi here. The Defence is using its rightful opportunity and plead not guilty to the charges. The defendants maintain their innocence. And if the principle of rebuttal is associated with alibis, the trial will never end. The Defence questions the relevancy of the evidence in rebuttal and says that nothing here requires rebuttal.

The real issue for me, here, is to what extent I, as the Judge, can exercise my discretion to allow evidence in rebuttal.

Section 137 of the Criminal Procedure Code Act CAP 136 provides:

"If the accused person adduces evidence in his defence introducing new matter which could not by the exercise of reasonable diligence have bee foreseen, the Prosecutor or Court, as the case may be, may adduce evidence in reply to rebut such matter."

In this case, having heard Mr Daniel Willie for the Public Prosecutor and Mrs Susan Bothmann Barlow for the Defendants, I am of the view that since the time factor is now becoming an important element in the Prosecution case and that the Prosecution was put in the dark in the sense that the Prosecution does not know of the defence in advance, and the time factor constitutes new matter which could not have been foreseen by the Prosecution, I will therefore, exercise my discretion in favour of the Prosecution to call evidence to rebut it and the defendant can then be re-called, if that is desired, to deal with the rebutting evidence. The evidence I, here, was not in any sense probative of the guilt of the defendants.

The following authorities are in support of this ruling:

It is to be noted that the principle of law can be defined this was:

"If the Prosecution could reasonably have foreseen that a particular piece of evidence was necessary to prove their case, they should have put it before the Court as part of their case. They should not wait until the Defendant has given evidence to produce that evidence. Such, however, will turn upon what is reasonable." [see R. v. Milleken - R. v. Doran 56 Cr. App. R. 429].

In R. v. Frost [1839] EngR 1190; (1839) 9 Car & P. 129, Tridal CJ said:

"... If any matter arises ex improviso, which the crown could not foresee, supposing it to be entirely new matter, which they may be able to answer only by contradictory evidence, they may give evidence in reply. (p.159).

Further the C.A. (England) in the case of R. v. Milleken upheld the ruling that:

"Where the evidence sought to be introduced in rebuttal is itself evidence probative of the guilt of the defendant and where it is reasonably foreseeable by the Prosecution that some gap in the proof of guilt needs to be filled by evidence called by the Prosecution, then, generally speaking, the Court is likely to rule against the closing of any such gap by rebuttal evidence... the evidence here was not in any sense probative of the guilt of the defendant since it really consisted of no more than denials of the accusations of conspiracy and concoction of the charge made by the defendant in his evidence". (at p.33).

The final authority in support of this ruling is the case of R. v. Levy and Tait, 50 Cr. App. R. 198. In that case, the Court said:

"It is quite clear and long established that the Judge has a discretion with regard to the admission of evidence in rebuttal; the field in which that discretion can be exercised is limited by the principle that evidence which is clearly relevant - to the issues and within the possession of the crown should be adduced by the Prosecution as part of their case and such evidence cannot properly be admitted after evidence for the defence.

It was held that evidence which had been in the possession of the prosecution throughout was marginally relevant and therefore "there was room for the exercise by the Judge of his discretion whether he should allow" the Crown to call it in rebuttal "in the interest of getting the facts before the jury so that they may ascertain the truth of the matter".

And, in this jurisdiction, the jury is the judge as the judge of fact.

DATED AT PORT-VILA, this 23rd DAY of JUNE, 1998

BY THE COURT

Vincent LUNABEK, J.
Acting Chief Justice