Public Prosecutor v Pollen [2001] VUSC 27; Criminal Case No of 2000 (28 March 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No. 2000

Supreme Court Case No.12 of 2000

PUBLIC PROSECUTOR

V.

CHARLES POLLEN

Date of Hearing: 28th March, 2001 at 10 a.m.

Coram: Before Mr Justice Oliver A. Saksak

Ms Cynthia Thomas – Clerk

Inspector Wilson D. Garae for Public Prosecutor

Mr Hillary Toa for the Defendant

JUDGEMENT

The defendant is charged with indecent assault contrary to section 98(2), unlawful sexual intercourse contrary to section 97(2) and attempted sexual intercourse with a girl under care and protection contrary to section 96(1) of the Penal Code Act [CAP.135] (the Act). He pleaded not-guilty to all the charges on 20^th October, 2000. He was released on bail on conditions. On every other dates which the matter has been called and adjourned the defendant has faithfully attended court. The matter has been called and adjourned about five (5) times. The defendant has been present on all those occasions.

This is a part-heard case. The trial started on 5^th December 2000 where the Nurse who examined and treated the victim was called by the Prosecution to give evidence. Mr Toa was not available on that date. Today the Prosecution calls the victim, Marie Grace to testify.

In her examination-in-chief she seems reluctant to answer questions which are very simple questions. She is a class-six leaver. The Court grants an adjournment for about half-an-hour in an attempt to have the witness co-operate. The Court resumes only to find that she still refuses to co-operate.

Inspector Garae applies to the Court to order that the public be excluded from the hearing. The basis of the application is that the victim is shy to talk given her age. I am referred to section 26 of the Criminal Procedure Code Act [CAP.136]. It reads:

“26(1) Subject to subsection (2) the place in which a court is held for the purpose of trying an offence shall be open and accessible to the public so far as the same can conveniently contain them.

(2) The judicial officer may for reasons of decency, security of the state or where otherwise authorised by law, order at any stage in the trial of any particular case that the public generally, or any particular person or class of persons, shall not have access to, or be or remain, shall not have access to, or be or remain in, the room or building used by the Court.”

In my opinion, this provision is not relevant and cannot be applied in the circumstances. The proper course of action for the prosecution is to close their case and inform the court that they do not wish to continue with the case, and to ask the court to enter a nolle prosequi under section 29 of the Code. They could have done so but they did not. They had no other alternative.

In the circumstances the Court applies the principles in Public Prosecutor –v- Veseni Solo Cr Case No. 23 of 1998 Unreported Judgement dated 6^th July 2000 at p.4.

Accordingly under section 29 of the Code nolle prosequi is entered. The defendant is discharged of all the charges laid against him.

DATED at Luganville this 28^th day of March, 2001.

BY THE COURT

OLIVER A. SAKSAK

Judge