Public Prosecutor v Jimmy [2002] VUSC 59; SC 029-01 (27 February 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.29 of 2001

PUBLIC PROSECUTOR

V.

MELEP JIMMY
BATICK TEWEL
RULING ON NO-CASE SUBMISSION

The prosecutions called three witnesses in respect of the charge against the two defendants. After informing the Court that no further witnesses would be called, the Public Prosecutor closed the case for the prosecutions.

Mr Toa then applied under section 135 of the Criminal Procedure Code Act [CAP.136] (the Act) to have the Court dismiss the case because a prima facie case was not made out against the defendants.

The three witnesses called were:-

1. Alick Wakon

This is the complainant of the case. On 15^th March 2001 at about 8 o’clock in the morning he went to smoke his copra. He was alone. After he had lit the fire he felt so weak that he lied down facing upwards. He felt some overpowering force come over him. A little later he felt someone grab him and someone else was stroking some vines over his body. There was a struggle and he got free and ran back to the village. He was met by some persons along the way. On reaching the village he went to wash in the sea. He returned to the house and told his mother that he felt he was dying. Then a man was called for who knew about custom or herbal medicines. He had the victim brought to his house and he administered the first herbal medicine. The following day being Friday 16^th March, 2001 the second herbal medicine was applied over his body. He drank the other half. On return to the house about 15 minutes later his mind became clear and he gave descriptions of two persons alleged to have been responsible for what happened to him. The descriptions fitted the complexion of the two accused.

2. Bill Joseph

A young man of 21 years. He applied the herbal medicines on Alick Wakon firstly on Thursday. Then the second on Friday 16^th March, 2001 when he had to wash the victim with the herbal medicine some 30 metres away from his house. He told of the purpose of the leaf medicine which was to clear his mind off. That after the second application on returning to the house some 5 minutes later, Alick Wakon began to tell on the persons who had attempted to take his life. He inherited this herbal medicine from his grandfather who died some 2 years ago. This was the first time he had administered his verbal medicine.

3. Jerry Wakon

He is Alick Wakon’s brother. He accompanied Alick Wakon to Bill Joseph’s house where the herbal medicines were administered on Alick. On return to the house Alick Wakon came back to his normal mind and he gave description of two persons who fitted the complexions of the two defendants.

In deciding the issue of whether or not there was a prime facie case made out against the defendants from the above evidence I must look at the meaning of the term ‘prima facie case.’

The test of what a prima facie case means ought to be this:

“Can a reasonable tribunal convict on the evidence so far before it?”

This was the test applied in the Fijian case of DPP v. Thirpathi Gounder and Another (1971) 17 FLR 118.

I apply this test here because the provision of the Fijian Criminal Procedure Code, section 201 is identical to the provision of section 135 of the Vanuatu Act. According to this test it appears that even if there was some evidence against the defendants, but not so much as a reasonable tribunal could safely convict, under this test the defendants ought to be discharged.

Applying this test I find there to be no prima facie case against the two defendants herein. Therefore I dismiss the charge as against both of them. I further order that all Orders in relation to bail be vacated forthwith.

DATED at Luganville this 27th day of February, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge