Public Prosecutor v Rasu [2005] VUSC 84; CRC 044 2004 (23 June 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

IN THE MATTER OF: Criminal Case No. 44 of 2004:

PUBLIC PROSECUTOR

V.

PATRICIA RASU & OTHERS

IN THE MATTER OF: The Restitution Order dated 18th February 2005

BETWEEN:

CONSOLIDATED COMMODITIES PACIFIC LIMITED (CCPL)
Claimants

AND:

PATRICIA RASU & JOHN JACK
Defendants

Coram: Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mrs Marie Garae – Representative of the Claimants
Mr Willie J. Kapalu – Counsel for the Defendants

Date of Hearing: 23 June 2005

JUDGMENT

Background

By letter dated 22 April 2005 Mr Roper sought a conference date for Patricia and John Jack to be examined as to how they would comply with their obligations under the Restitution Orders dated 18^th February 2005. As a result the Court issued a summons allocating a conference date on 20^th May 2005. The matter was adjourned on this date to 10 June 2005. On this date John Jack had not been served with the Claimant’s submissions. The matter was adjourned to 16^th June. However the judge was unwell and the matter was adjourned further to today’s date.

Appearances

Today Mr Kapalu appears on behalf of the Defendants. It is unfortunate that the Claimants cannot afford Counsel at the hearing of the matter. This is matter that required appearances by legal Counsel.

Evidence

As the issue involves enforcement Mr Kapalu indicates that John Jack was available to give evidence in relation to his financial position. He takes the usual oath. His evidence shows as follows –

• He is the de facto husband of Patricia Rasu who is in jail.
• They have one child who is now in his care.
• He is self-employed in Information Technology and Customs Services and Secretarial Services in a joint-venture business. His partner resides overseas.
• The business is operating with difficulties and loss due to the outcome of the criminal prosecutions. They have moved premises. They have suffered telephone cuts and loss of employees. The business is just beginning to pick up but making very slow progress.
• He has documents relating to his personal budget. At 31 May 2005 he had only 407 vt in his ANZ Bank Account. In March and April 2005 he had a total budget of VT60,000. After deductions for rent, electricity, water, House girl’s salary, Ration, transport, tithe and airfares he was left with 1,666 vt in March, 2,666 vt in April, 3,666 vt in May and 4,666 vt in June. His expected net income forecast for July 2005 is VT10,000 and for August is VT11,000. He tenders relevant documentation as Exhibit P1.
• He proposes a repayment of only a minimum of VT10,000 per month beginning of July 2005. He indicates he may pay little more depending on his income. And he depends largely on his business. There is no other source of income.
  

Mrs Garae has no questions in cross-examination.

Submissions

Mr Kapalu submits that –

(1) There is no proper application before the Court for the Court to vary the orders of 18 February 2005.

(2) The amount proposed by CCPL is excessive and evidence produced shows that John Jack cannot afford that amount. That he can only meet a minimum of VT10,000 per month from end of July 2005 and on wards.

(3) The Order of the Court dated 18 February 2005 is clear that the sum of VT4,452,419 remains a debt and liability even after Patricia’s term of imprisonment has expired.

Mrs Garae makes no submissions.

Decisions of the Court

(1) The Court accepts the submissions that CCPL has not made proper application for a variation of the Orders of 18 February 2005. What they are seeking is enforcement. The proposals outlined in paragraph (7) of their submissions are rejected. It involves Pako Tamata. But he is not a party. He was not summoned or served by the Claimants.

(2) Even of there was a proper application, the Court accepts the evidence of John Jack as regards his financial status. He cannot afford the amounts proposed. And the Court can only accept his counter-offer of a minimum of VT10,000 per month commencing at the end of July 2005.

(3) The Orders of 18th February 2005 are final Orders and the best course of action was for the Public Prosecutor and/or CCPL to have appealed. There has been no appeal. The Orders stand as they are.

(4) The Court accepts that there has been an error in the period of imprisonment of Patricia Rasu. The total term in term of months was 49 months which equates with 4 years and 1 month, and not 3 years and 1 month as appears in the Order of 18^th February 2005, and in the Sentence at page 4, paragraph 3. The Court will issue an amendment accordingly.

ORDERS

The Court hereby Orders John Jack to pay to CCPL a minimum sum of VT10,000 per month commencing at the end of July 2005 in reduction of the outstanding sum of VT2,768,642. This payment will continue to be made at the end of each ensuing month until the total outstanding is paid in full.

DATED at Luganville this 23^rd day of June, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge