The summary of the grounds against the convictions of
each and all Defendants/Appellants is set out below.
First, the Appellants say that during the evidence in
chief of the Prosecution witnesses, there were lots of people sitting
outside at the veranda of the courtroom. The Prosecution witnesses sat in
the witness box and faced the entrance door
to the courtroom. The Appellants
alleged/contended that what the Prosecution witnesses say, is what people
who sat outside
at the veranda told them to say in the witness box.
The Appellants further say that, the spokesperson on
b of the Appellants (Mr. Albert Kalo Manaroto) made objectioections and
attempted to draw the attention of the trial Magistrate on 3 occasions about
the way evidence came before the Court.
The first ground of the appeal is rejected for the
folg reasons. This allegation/contention is too general. No reNo reference
is made to a particular Prosecution witness who gave evidence in the way
prescribed. The prosecution called 11 witnesses.
The allegation is that the
trail Magistrate did not make any direction although the Appellant’s
spokesperson draw his
attention on about 3 occasions. I find it difficult to
believe this. The prosecuting counsel who was in the Court throughout
is in
a better position to inform and assist the Court. The Defendants/Appellants’
lawyer was not involved in the trial
before the Magistrate’s Court. The
Appellants, after they were informed of their rights to get legal assistance
from
the Public Solicitor’s Office, decided to defend themselves without the
help/assistance of a lawyer.
The prosecuting counsel, Ms Myranda Forsyth refuted the
Appts’ contention. She says, the trial Judge was in the courtrourtroom.
His
Worship sat in the middle of the courtroom, a better position to see and
supervise the trial. She says no such incidents
occurred. Further the
prosecution witnesses sat in the witness box which is on the other side of
the courtroom and the
entrance door is on the other side of the courtroom.
If someone from the outside, sitting in the veranda of the courtroom,
whisper the answers of the questions to the Prosecution witnesses, the trial
Magistrate would see it, because the person
would not whisper but talked
loudly. The Appellants’ contention is not tenable.
Second, the Appellants contended that they are not given
a fair hearing during thrse of their cross-examinatmination of the
Prosecution witnesses. This was particularised by the fact that when the
Appellants’ spokesperson asked questions during
the cross-examination, the
Prosecution witnesses answered by asking questions to the spokesperson of
the Appellants for
example: “… you akem you wan…”. The Appellants say they
asked the trial Magistrate to direct the Prosecution witness to answer
the
question when asked. They say the Magistrate failed to so direct. Further
they say, the Learned Magistrate say words
to this effect: “you save toktok
be mbae mi no save write… Yufala i wastem taem blong Court.”
And they say the trial Magistrate stopped the Appellants’
spokesperson, Mr. Albert Kalo Man from further questioning ting the
Prosecution witnesses and making submissions.
This allegation is very serious if found to bunded.
However, I do not see that it is so in the cire circumstances of this case
and
reject it for the following reasons. Again the response from the prosecuting
counsel is very helpful. During the
cross-examination stage of the
Prosecution witnesses, the spokesperson of the Appellants insisted and spent
a great deal
of his time on asking questions such as this: “who ia i gat
raet blong callem himself Chief blong Emae?”
The prosecuting counsel informed this Court that the
efendants/Appellants were charged on one count of Intentionntional Assault,
contrary to Section 107(b) of the Penal Code Act. She says she made a
submission to the trial Magistrate that that question was not relevant to
the case of intentional
assault. The trial Magistrate agreed with her
submission. The Magistrate, then, directed the spokesperson of the Appellant
not to make statement or ask question on that issue. However, the
Appellants, via their spokesperson, revisited the issue
which is the subject
of the ruling of the trial Magistrate (irrelevance of the issue).
It was in that context tha Magistrate told the
Defendants/Appellants and their spokesperson that if they go baco back on the
issue that he ruled to be irrelevant, he would not take a note of what they
say because that issue is not an issue before
the trial Court.
The cuting counsel, says also that the appellants
and their spokesperson had difficulty ilty in formulating questions in
cross-examination. In effect, they proceeded by making submissions to the
prosecution witness and asked witness to answer.
The end result is that it
is difficult for the witness to understand and answer such submissions.
Further the Appellants andr spokesperson pick up a
minor difference in the statement of the Prosecution witnesstnesses and spent
great deal of the time questioning the Prosecution witnesses on them. The
witnesses answered the question when first
asked, then, same questions were
put and asked again. At the end, the witnesses were tired to answer the same
questions
again already answered. It is in this context that the Appellants
say that the trial Magistrate fails to direct the Prosecution
witnesses to
answer by “yes” or “no”.
There is nothing wrong in the way the learned Magistrate
conducted the trial. The trial toout 13 hours. It appears thrs that
the
trial Magistrate is lenient towards the Defendants/Appellants as lay
persons/Defendants. The trial Magistrate allow
all Defendants to ask
questions to the prosecution witnesses and not just one Defendant. Finally,
the evidence and the
court file record show that there is no inconsistency
as stated by the defence counsel about 1 or 2 Defendants who do not read.
The statement was taken by a police officer who confirmed this under oath.
Thihe Appellant contended finally that the learned
Magistrate misdirected himself when hhen he refused the Defendants/Appellants
to
tender a sketch plan to show the location of the houses and where the
Prosecution witnesses say there were when they
saw the Defendants assaulting
the victim Chief Taripoa.
What the learned Magistrate did, was that upon an
objectrom the Prosecution counsel for the sketch map to be tenderendered on
the grounds: (a) that she did not see the sketch plan and (b) it was not
relevant, the trial Magistrate refused the sketch
map to be tendered but His
Worship did allow the Defendants and their spokesperson to give evidence on
its content.
The learned Magistrate is perfectly right to make the
ruling as he did. It is within his discretion. Further, the, there is no
prejudice to the Defendants/Appellants. They have the opportunity to talk
about the content of the said sketch map in their
evidence. This ground of
the appeal is therefore dismissed.
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As to sentencing, the Appellants say the part of the
appeal which imposed 2 weeks imprisonment is excessive. They accepted the
10
weeks imprisonment sentence suspended for 2 years. But they do not accept
the 2 week imprisonment. Some of the Defendants/Appellants
work. One of the
Defendants is taking courses at USP.
The allegations that the trial Mrate failed to take
the individual situation of each of the offenders cannot stand. Tnd. The
judgment
under appeal shows the contrary. The learned Magistrate analysed the
mitigating factors in favour of each of
the Defendants/Appellants. He then
turned to the aggravating factors. He said, the Defendants acted in concert.
They
had a common intention and acted as a group. He said that in his view,
the Defendants/Appellants aided and encouraged each
other to carry out an
unlawful act. They assaulted an old man older than most of them. He was
punched and kicked and
suffered injuries and had to be airlifted from Emae
Island to Port-Vila Central Hospital for treatment. The Defendants pleaded
not guilty and the Magistrate observed each of the Defendants in Court. He
was not impressed by their demeanours. None
of the Defendants displayed any
act of remorse to the victim.
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The trial Magistrate did exercise his discretion to
consider other sentencptions (p.5 of the judgmentgment). He pointed out
that
this does not mean that he failed to consider other options as pleaded by
each of the Defendants/Appellants.