The defendant is charged with
indecent assault contrary to section 98(2), uul 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 20th
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 December 2000 where the Nurse who examined
and 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 eation-in-chief she
seems reluctant to answer questions which are very simple questionstions. 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 cluded from the hearing. Thg. 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:
p class="MsoBoMsoBodyText" align="left" style="text-align: left; text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom:
1">
(2) &nnbsp; &nnbsp; &nbp; &nbp;
Tdi jul officefficer may for reasons of decency, securityhe
tate ere oise aised w, ort any stage in the trial
of anof
any pary particulticular caar case thse that 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 prov
is not relevant and cannot be applied in the circumstances. The proper
course urse 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 6th July 2000 at p.4.
Accordingly under section 29 of
the Code nolle pro is entered. The defendant is discharged of all the
c charges laid
against him.
DATED at Luganville this 28th>
day of March, 2001.
BY THE COURT
OLIVER A. SAKSAK
Judge
