Public Prosecutor v Bill [2000] VUSC 46; Criminal Case No 003 of 2000 (16 August 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.124 of 2000

SC File No.03 of 2000

PUBLIC PROSECUTOR

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JULES BILL

Coram: Mr Justice Oliver A ak

Ms Cynthia Thomas - Clerk

Inspector Wilson Garae for Public Prosecutor

Mr Hillary Toa for Defendant

JUDGEMENT

This case was called on for trial today. This morning Inspector Garae informedCourt that Ms Tavoa h had disqualified herself from prosecuting the case and that the Public Prosecutor herself had carriage of the matter. He informed the Court that the File could not be located in their Offices. The Public Prosecutor herself we are told is on Pentecost on some medical grounds. Inspector Garae then sought an adjournment to 2 O'clock in order to receive update instructions. Although the defence objected to the application for adjournment, I saw fit to allow such an adjournment but indicated that it would be the final adjournment.

At 2 O'clock pm today Inspector Garae informed the Court that after his efforts the File hale had been located at the Public Prosecutor's house. He told the Court that the File could not be transmitted on the midday flight today because the Police could not get to the Public Prosecutor's house because they did not know where the house is located. I find this hard to believe. I am told in any event that the File is expected to arrive on the last flight to Santo today. The Inspector therefore seeks further adjournment to tomorrow, Thursday 17^th August.

Mr Toa for the defendant objected to the application aged the Court to dismiss the case.

In considering the issue of whether or not to dismiss the case, I noted the histf the case. On 29^{th February, 2000, the matter was called on for plea. The defendant pleaded not guilty to all counts of rape. The matter was adjourned to 24th May, 2000. On this date Mr Toa was involved in another criminal trial and it was agreed between him and the Public Prosecutor that the matter be adjourned to 26th May. On 26th May the case was further adjourned by consent to 17th July because Mr Toa's term of circuit allowed under the Public Service Rules had expired and he had to return to Vila. On 17th July for some unknown reasons the trial could not proceed and the matter was further listed for 16th August.}

Article 5(2(a) of the Constitution states –

"Protection of the law shall include the fing –

(a) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& with a reasonable time, by an independent and impartial court and bend be affo afforded rded a lawyer if it is a serious offence", (emphasis, mine).

From February 2000 to August 2000 is slightly more than 5 months. The defendant is on conditional bail from 29^th February. Condition 1 requires that he reports to the Police every Friday at 8 O'clock until trail. He has been doing that for more than 5 months. There is no information to the contrary. On every occasion that the Court has called his case on, the defendant has been present.

I note from at least two previous judgements of this Court wcases have been dismissed fsed for similar reasons. These are Public Prosecutor -v- Antysus Sio Criminal Case No.59 of 1999 and Public Prosecutor -v- Basil Tagahi & Arther Ban Criminal Case No.57 of 1999. In the latter case, Article 5(2)(a) of the Constitution was the basis of the dismissal of the case. In the former no sufficient and exceptional reasons were given for the delays in holding trial. Those principles are upheld and applied in this case.

Iefore order that this case be dismissed accordingly.

DATED at Luganville, this 16^th day of Augu000.

ass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BY THE COURT

OLIVER A. SAKSAK

Judge