Public Prosecutor v Benard [2006] VUSC 44; Criminal Case 012 of 2004 (14 March 2006)

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

Criminal Case No.12 of 2004

PUBLIC PROSECUTOR

-v-

GUY BENARD
JOHN SIMBOLO
JOHN LESS NAPUATI
STEVEN KALSAKAU
CHRISTOF EMELEE

Coram: Justice H. Bulu

Counsels: The Public Prosecutor and Mr. Lent Tevi for the State
Mr. Nigel Morrison for Messrs. Benard & Napuati
Mr. Robert Sugden for Messrs. Simbolo & Emelee
Mr. Jack Kilu for the Mr. Kalsakau

Date of Hearing: 1 September, 2005
Date of Decision: 14 March 2006.

DECISION ON "NO CASE TO ANSWER" SUBMISSION

INTRODUCTION

1. All the defendants were charged with having committed the offence of conspiracy to defeat the course of justice contrary to section 79 (a) of the Penal Code Act [CAP. 135].
   
2. Section 79 of the Penal Code Act states as follows:-
   

"No person shall

(a) Conspire with any other person to accuse any person falsely of any offence or to do anything to obstruct, prevent, pervert or defeat the course of justice.

(b) In order to obstruct the due course of justice, dissuade, hinder or prevent any person lawfully bound to appear and give evidence as a witness from so appearing or giving evidence, or endeavour to do so; or

(c) Obstruct or in any way interfere with or knowingly prevent the execution of any legal process civil or criminal.

Penalty: Imprisonment for 7 years."

3. The particulars of the offence are that "Between 1 November 2003 and 12 November 2003 the defendants between themselves conspired to pervert the course of justice."
   
4. The trial in this matter began on 1st September 2005 and lasted for approximately two and a half months. The Public Prosecutor called in a total of 29 witnesses.
   

NO CASE SUBMISSION

5. At the end of the Prosecutions case Mr. Sugden, Mr. Morrison and Mr. Kilu on behalf of their clients submitted that the defendants have no case to answer on the basis that, as a matter of law there is no evidence on which if believed the accused could be convicted.
   
6. It is argued on behalf of the defendants that there must be evidence to prove every element of the charge. If there is evidence which if reasonably believed would establish all elements of the charge except one, the verdict must be not guilty.
   
7. It is further argued on behalf of the defendants that there is no evidence of any scheme successful or unsuccessful on anyone’s part to wrongly influence the outcome of the prosecutions of the fishing vessels. Further, there is no evidence of any agreement between the defendants to try to implement a scheme of that kind.
   
8. In relation to Mr. Napuati, Mr. Morrison submitted that at no stage of the trial has the Public Prosecutor sought to lead any evidence in respect of Napuati and/or the Vanuatu Maritime Authority. There is simply no evidence at all in respect to Mr. Napuati.
   
9. In relation to Mr. Benard, there is no evidence indicative of a conspiracy involvement by the defendant. In fact there is a total paucity of any evidence in relation to this particular defendant whatsoever.
   
10. In relation to defendant Kalsakau, Mr. Kilu submitted that there is no evidence to show that the Defendants agreed for defendant Kalsakau to do anything.
    
11. At no time did the Public Prosecutor lead any evidence or even attempted to lead any evidence from the Prosecution witnesses, to try and prove that the defendants did conspire to pervert the course of justice.
    
12. There is just simply no evidence before the Court to show that the defendants did conspire between 1 and 12 November 2003 to pervert the course of justice.
    

RESPONSE TO NO CASE SUBMISSION

13. In response the Public Prosecutor submitted that there is a case to answer.
    
14. The Prosecutions submitted that there has been evidence on the apprehension of the two vessels, Yang Szu 666 on the 1st of November 2003 and Yang Szu 316 on the 4th of November 2003. The vessels were apprehended and then escorted to Mala Base for further investigations. It is clear that a judicial proceeding had commenced because an investigation was due to take place.
    
15. However on the 6th of November 2003 the Director of Fisheries Mr. Amos organized a meeting at Fisheries conference room with all stake holders which included three of the defendants, Mr. Simbolo, Mr. Benard and Mr. Emelee. The purpose of that meeting was to have the matter resolved out of Court.
    
16. On the 7th of November 2003 there was another meeting at the Fisheries Department concerning the two vessels with the same proposal that the vessels be released. However it was at this meeting that the Commander of Police Maritime Wing informed the meeting that they were going to lay charges against the captains of both vessels. Charges were laid following further investigations into the matter.
    
17. The Prosecution submitted that prior to the apprehension of the two vessels the Boarding Party of Police Maritime Wing boarded the vessels. It is clear from Inspector Philip Saul that he was given certain documents to check when he boarded the Fishing vessel. Having looked at those documents and relayed the information back to Tukoro he then apprehended the Fishing Vessels Yang Szu 666 and Yang Szu 316. Again in examination he (Philip Saul) stated that it was routine that whenever they boarded any vessel the document, catch log and position were what had to be checked. This led to the apprehension of the vessels and the escort of the vessels back to port.
    
18. The Prosecution submitted that from these two facts the Court can draw the only inference, what was in the documentation? And why was there any need for an apprehension? The only possible answer that is open to draw that inference is that the documentation of both vessels had a problem or were not correct.
    
19. The Prosecution submitted that the accuseds had attempted to pervert the course of justice in the meetings of 6th and 7th November. However they failed when Police Maritime Wing informed them their intention to investigate and prosecute the captains of the vessels they took the next step to further the perversion of the Court of Justice.
    
20. On the day the proceedings were to commence against the captains several documents were received from the defence counsel that led to the withdrawal of the first proceedings against the two captains.
    
21. The next step that the defendants took was to ensure that they had correct documents in place so that it would further their cause and ensure that no prosecutions was brought against the two captains. The witness Tari Tamata stated in his evidence that when they came up to Court on the 12th of November 2003 the Prosecution received two different documents and having received those documents charges against the accused (two captains) were dropped. Tim McIntosh also gave evidence that he had received an addenda document and he and the then Public Prosecutor had gone to the Office of the then Minister of Agriculture Steven Kalsakau to ask if it was "his signature on the document and he had agreed that it was his signature" prior to the withdrawal of the charges against the two captains.
    
22. In addition to this the Public Prosecutor submitted that there was evidence from Joe Seth who stated that "when the fishing vessels were arrested these people always met at Tuna Fishing". Ms. Emelee also gave evidence that "she was involved in the retyping of a document/licence the document was held by Guy Benard and typed that uncle Christopher told her to type as she was fast and that Joe Seth was called into the room when she printed the document and he and Simbolo took the document to the Minister. When they came back there was a Simbolo was amused as he told the other that the Minister had signed and she made copies for the defendants’ files."
    
23. The Prosecution further submitted that, there is evidence that the Licensing Officer, William Naviti, is the maker of all Licenses and when he is not in the country another Officer at Fisheries, John Mahit, makes the Licences. In this particular case Mr. Mahit made amendments to the licenses for Yang Szu 666 and Yang Szu 316 in Mr. Naviti’s absence.
    
24. Why were the charges dropped unless there was information in the documents that would not enable the Public Prosecutor to proceed with the charges. There is only one possible inference that can be drawn and that is that the documents contained information that was different to the information the Boarding Party of Tukoro had viewed prior to the apprehension of the vessels.
    
25. The Prosecution submitted that the defendants do have a case to answer. The defendant John Simbolo has been involved in the very beginning of the apprehension of the two vessels. The director of Fisheries has informed the Court that he had met with John Simbolo to discuss the sea mounts which the two apprehended vessels could fish in. However upon boarding the vessels by the Boarding Party of RVS Tukoro there were no documents that would lead the Boarding Party not to arrest. As we have heard in evidence they did board a boat prior to Yang Szu 666 but their documents were okay so they boarded the next vessel which was Yang Szu 666 and then apprehended the vessel.
    
26. Secondly, the meetings that was organized by Fisheries Department the defendants John Simbolo, Guy Benard and Christopher Emelee were involved in on the 6th and 7th November 2003. At that meeting it was clear that the Director of Fisheries attempted to take the blame for his staffs failure to correct the mistake? The Prosecution submitted was this a genuine mistake or made up after the apprehension to suit the defendants. At the meeting the director went further by saying that settling out of Court would not be too costly, avoid prosecution cost, fines to be paid and government revenue whose interest was he protecting, the Prosecution submitted.
    
27. Thirdly, having charged the captains of both vessels several documents were received outside the Court House and at the Office of the Prosecution. Charges were then withdrawn against the two captains.
    
28. Fourthly, charges of conspiracy were laid against the five defendants. Why would the prosecution charge them unless there was information from the Police or the documents received and witnesses that they had to committed conspiracy or that these actions had a tendency or a possibility to commit the offence of perverting the course of Justice.
    
29. Finally, during the arrest of the vessels, Joe Seth has told the Court that almost everyday they would meet at the Tuna Fishing, this led later to Ms. Emelee telling the Court that she had retyped a document/licence and when she printed the document Joe Seth was called in to take it to the Minister with Simbolo to have the document signed. The document was signed and returned copied to all the parties. This document as stated in the evidence of McIntosh that was Addendum was taken to Steven Kalsakau when he confirmed his signature.
    
30. Therefore the Prosecution submitted that there is a case against the defendants to answer.
    

DISCUSSION

31. At the end of the Prosecutions case, the defendants submitted that there is "no case" to answer. They submitted that there is no evidence on which the defendants "could be convicted".
    
32. The submission is made pursuant to section 164 of the Criminal Procedure Code. It states:-
    

"(1) If, when the case of the Prosecution has been concluded, the judge rules, as a matter of law that there is no evidence on which the accused person could be convicted, he shall thereupon pronounce a verdict of not guilty.

(2) In any other case, the Court shall call upon the accused person for his defence and shall comply with the requirements of section 88."

33. The judge in this jurisdiction is both the judge of law and the judge of facts. When a no case submission is made at the end of a Prosecutions case pursuant to section 164 of the Criminal Procedure Code Act [CAP. 136], it is made to the judge as the judge of law. In the present application or submission of no case to answer I remind myself that in determining the application I sit as the judge of law and not the judge of fact.
    
34. I have had to go back carefully over the submissions made by the Defendants and the responses by the Public Prosecutor, and the evidence before the Court to ascertain what is the evidence before the Court on the elements of the charge laid against the Defendants.
    
35. The case of PP v. Samson Kilman & Others No. 5 of 1997 is of assistance as it lays down a guideline for the court when faced with a no case submission. In that case the learned Chief Justice adopted the pronouncement by Lord Cane CJ in Reg. v. Gailbraith (CA) (1981) 1 WLR 1039. The relevant passage reads as follows:-
    

"(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty the judge should stop the case.

(2) The difficulty arises where there is some evidence but it is of tenuous character, for example, because of weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge concludes that the Prosecution case taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being made to stop the case.

(b) Where however the Prosecution is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the providence of the jury and where no one possible view of the facts there is evidence on which the jury could properly come to a conclusion that the defendant is guilty then the judge should allow the matter to be tried. (Pe. Lord Land CJ at p. 127)."

36. I adopt this as a guideline judgment in this case. What is the standard of proof on a no case to answer submission. A case on point is that of Auckland city Council v. Jenkins where Speight J said:-
    

"A tribunal deciding whether or not there is a case to ‘answer’ must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is ‘prima facie’ – a well understood phrase."

37. Bearing in mind section 164 of the Criminal Procedure Code Act the test is not proof beyond reasonable doubt but rather as a matter of law whether the accused could be convicted on the evidence presented thus far. I am satisfied that the test is whether a finding of guilt could be made by a reasonable judicial officer sitting alone on the evidence thus far presented. I adopt the test as stated by Speight J. in Auckland City Council v. Jenkins.
    
38. The submission of no case to answer requires the Court to refer to the evidence adduced by the Prosecution, more particularly, the evidence relating to the elements of the crime the Defendants have been charged with.
    

THE CHARGE

39. The Defendants were charged with conspiracy to defeat the course of justice contrary to section 79 (a). The relevant part of the section reads "no person shall conspire with any other person ... to defeat the course of justice."
    
40. The Particulars of the offence are that "between 1 November 2003 and 12 November 2003 the Defendants conspired to pervert the course of justice."
    

First Element – Agreement between the Defendant to do an act, which if done, would constitute an offence.

41. There is no evidence before the Court that the Defendants did have an agreement. No evidence adduced by the Prosecutions show:-
    
    • (a) that the defendants were ever at one time been together and reached and agreement;
      
    • (b) that, whether the defendants were ever together at any one time, but did have an agreement;
      
    • (c) that such agreement had as its purpose, the defeat of the prosecution of the captains of the two locally based foreign fishing vessels, namely Yang Szu 666 and Yang Szu 316;
      

Second Element – Defeat the course of justice

42. When the two fishing vessels Yang Szu 666 and Yang Szu 316 were apprehended on 1st and 4th November 2003 and escorted to Mala Base for further investigations a judicial proceeding had commenced at that point in time. On 7th November 2003 a decision was taken by the Office of the Public Prosecutor to prosecute the captains of the fishing vessels under the Fisheries Act. It is clear that the course of justice refers to the prosecutions of the captains under the Fisheries Act.
    

First attempt to defeat the course of justice

43. On 6th and 7th November 2003, the Director of Fisheries organized a meeting at the Department of Fisheries with all the stake holders which included defendant Simbolo, Benard and Emelee. At the meeting the Prosecutor submitted:-
    
    • (a) the Commander Maritime stated "we were asked to settle the matter out of Court";
      
    • (b) Lt. Col Bong stated "oli askem blong oli stretem ia outside long Court";
      
    • (c) Michel Kalorai also stated "mifala i wantem stretem outside so bai oli compensatem Shefa";
      
    • (d) That Director of Fisheries and William said words to almost the same effect but added some reasons that they would settle the matter out of Court.
      
44. The Prosecution submitted that this was the first attempt to defeat the course of justice.
    

What is the evidence?

Witness Tari Tamata

45. Witness Tari Tamata, Commander of Police Maritime Wing at meeting of 6 November 2003 said:-
    
    • (a) "Mi bin touchem importance blong foreign fishing licence. That of Yang Szu 666 date of licence 7 November 2003 to 6th November 2004. Mi bin talem se mifala ibin apprehendem Yang Szu 666 on 1 November 2003. Findings blong mifala se ibin mekem fishing (outside long licence period) istart fishing long 1 November 2003.
      
    • (b) Director of Fisheries apologized that it must have been an error and should be 23 October 2003.
      
    • (c) Amos ibin talem se ikud mifala isortem out long Court blong usim fine we oli pem blong pem fuel blong Tukoro, smol iko long Shefa we oli fish long wota blong hem, tu bambai i avoidem legal costs mo ol nara samting. Hemi askem long mifala long Maritime Wing blong tingting long hem blong mekem decision. Meeting i finish mo blong mifala i meet again on Friday."
      

Witness William Naviti

46. Witness Naviti gave evidence that "Emelee, Simbolo and Benard were at the meeting. Director of Fisheries hemi consult wetem everybody long matter we istap. Ino bin wan good samting icome out long miting. Olgeta long Police Maritime Wing mo Prosecutions nao oli tekem up case."
    

Witness Joshua Bong

47. Witness Joshua Bong gave this evidence:-
    

"Representative blong Shefa Province Michel Kalourai itoktok italem se two vessels ia ifish long waters blong Province. Afta iaskem sapos settlement isave tekem ples mo money igo long Shefa Province. Tufala wetem legal officer blong Province iaskem adjournment to next day. Ol party oli return wetem reports blong ol blong luk olsem wanem blong settlement."

Witness Moses Amos

48. Witness Moses Amos gave evidence that:-
    
    • (I) Invited all these people, as I had invited them earlier in relation to other vessels.
      
    • Practice for FFV when fishing in Shefa waters, for Shefa to expect some compensation, even though it wasn’t law.
      
    • Been mistakes in the past where there’s been technical errors, vessels escorted in, corrections are made and vessels released.
      
    • On 6th November 2003, the practice and attitude was that if a foreign fishing vessel has not been fishing within permitted period, because of technical error on the part of Fisheries, there would certainly be no suggestion for prosecution.
      
    • When called meeting, I believed that the vessels had been fishing in the wrong place.
      
    • In apprehension of vessels, bonds imposed and vessels released. Practice has been that after Fisheries completed investigations then the evidence is presented to Public Prosecutor. Public Prosecutor would meet with Defence counsels and go through evidence to agree on a bond. Then case would be heard and bond would be placed with the Court. A hearing date would be set for the vessel to come back for hearing.
      
    • Long miting long 6 November 2003 mifala ibin discussem two options:-
      
      • (1) prosecute case;
      • (2) based on Fisheries Act, bond to be paid.
        
    • Why mifala ino follem second option, after miting, Police Maritime Wing without consulting us, decided to put case to Court.
      
    • Purpose blong come up wetem amicable solution from long view blong mifala i one technical error."
      
49. The evidence of the Director of Fisheries can be summarized as follows:-
    
    • (a) When he called the meeting it was on the assumption that the vessels had been fishing in the wrong place. It had been reported to him that Yang Szu 666 had been seen close to Hat Island.
      
    • (b) When the issue of the period of fishing in the licence arose, he stated that it was a technical error. The dates on the licences were dates previously advised by the applicant. However, the vessels arrived earlier and the Fisheries officers involved in the licensing section of the Department had both gone overseas. The licences were executed without realizing that the dates had not been corrected.
      
    • (c) At the meeting two options were considered. One was for the Prosecutions’ of the vessels. Secondly for bond to be paid into Court under the Fisheries Act. When the meeting ended on 6 November 2003, it was for the parties to consider the options and report back to the meeting on 7 November 2003.
      
    • (d) The Director had suggested settlement out of court as a proposal as in his view, the error was a technical one on the part of the Department and not the vessels concerned.
      
50. There is nothing in what transpired in that meeting on 6th November 2003 that could constitute an attempt to pervert the course of justice.
    
51. The Public Prosecutor has not told the Court, through evidence, the method or means by which the defendants utilized or attempted to utilize to defeat the course of justice, which at that point in time, was the ongoing investigations.
    
52. The evidence before the Court on how the Department of Fisheries and Police Maritime Wing had handled cases of apprehension, arrest and prosecutions of foreign fishing vessels are as follows:-
    
    • (a) On apprehension, a vessel is brought ashore for further investigation;
      
    • (b) Ashore the Fisheries and Police Maritime Wing cooperate to complete investigations;
      
    • (c) On completion of investigation the report is given to the Public Prosecutor for a decision whether to prosecute;
      
    • (d) Usually a bond under the Fisheries Act is paid and a vessel is allowed to leave and continue fishing. It then returns on a date fixed for hearing.
      
    • (e) In cases of errors caused administratively by the Department of Fisheries, these are sorted out and the vessel is released without prosecutions. Three of such cases have occurred.
      
    • (f) In this particular case, the Director of Fisheries has maintained throughout cross examination and on re-examination that the period of fishing authorized in the licence of the two fishing vessels concerned contained technical errors. That the Department had overlooked the fact and not amended the authorized fishing period due to the early arrivals of the vessels before the Minister signed the licences.
      
53. Defendants Emelee, Simbolo and Benard attended those meetings. However, the Court is not told how their presence or what each one or any of them may have said or action any of them may have taken at, or prior to the meeting amounted to an attempt to defeat the course of justice. Defendant Emelee had said that the Police Maritime Wing had acted unprofessionally when they arrested the vessels. Defendant Benard had said something along similar lines. Defendant Simbolo was angry with the Police Maritime Wing advisor and swore at him. None of that takes the matter anywhere close to saying that those were attempts at defeating the course of justice, in my view.
    
54. In a situation like that which occurred with Yang Szu 666 and Yang Szu 316, it is normal for those involved to talk to see whether the matter can be resolved without prosecution. Naturally, the defendants who were at the meetings would put their case to the meeting. That in itself does not amount to an attempt to defeat the course of justice. To say that that amounts to such an attempt places the onus on the Prosecution to show the Court evidence accordingly. In my view there is nothing to show that such an attempt was made, or an inference could be made to that effect.
    

Second attempt taken to defeat the course of justice

55. The next step that the Prosecutions submitted the defendants took was to "ensure that they had correct documents in place so that it would further their cause and ensure that no prosecutions was brought against the two captains."
    

What is the evidence?

Witness Tari Tamata

56. Witness Tari Tamata on examination in chief gave evidence that:-
    

"Q. Date of Hearing?

Ans: 12 November 2003 at 9.00 a.m.

Q: What did you do on 12 November 2003

Ans: I came to Court.

Q: What did you do at the Court House?

Ans: Wait for Judge. Public Prosecutor asked me to approach and he showed me a document."

57. Under cross-examination Mr. Tamata said that the Regulations that prescribed the 12 miles limit came into operations on or about 13 December 2003. When the two vessels were arrested it was assumed that the Regulations were already in force. Mr. Tamata said that the charges were dismissed as the actions were unlawful because the Regulations had not been gazetted and operating on the date of arrests. This is the evidence of the Commanding Officer of the Police Maritime Wing.
    

Witness Timothy McIntosh

58. Witness Timothy McIntosh gave evidence that he became involved when he spoke to Sugden concerning the Addendum to the Licence "sometime in early November (second week)". He had received a number of documents including the Addendum to the licence and the covering letter. Further that when he and the then Public Prosecutor took the Addendum licence to the Minister for the Minister to confirm whether it was his signature on the document, the Minister agreed that it was his. On returning to the Office discussions ensued and as a result the prosecution was discontinued.
    

Witness Ericka Emelee

59. Miss Emelee in her evidence said she was asked by her uncle, Christophe Emelee to retype a document. Guy Benard, John Simbolo, Samson Kilman, Christophe Emelee, Mrs. Emelee and John Less Napuati (arrived 30 minutes late) were present when she retyped the document. She continued that "mi printim one copy. After mi singaotem Joe Kaso mo Joe drove John Simbolo out. About 20 minutes after tufala icome back. John Simbolo icome inside long Office mo hemi lukluk ol nara one mo sekem hed blong hem (nodding her head) mo ise oli signem."
    
60. The Addenda to the licence is not in evidence. The documents received by the Prosecutions from Mr. Sugden are not in evidence. There is no evidence before the Court on what the charges against the captains were and why those charges were dropped.
    
61. In summary evidence by witness Tari Tamata showed that he was shown some documents outside the Court House while waiting for the hearing to commence. The Public Prosecutor has told the Court that her Office had received some documents one of which was an Addenda to the Licence. This was confirmed by evidence from witness Tim McIntosh. Tari Tamata on cross-examination has testified that the reason for the Public Prosecutor withdrawing the charges against the captains of the vessels was because the Regulations creating the 12 miles zone was not in operation at that time.
    
62. I remind myself that in a no case submission, section 164 of the Criminal Procedure Code Act [CAP. 136] provides for the Judge to pronounce a verdict of not guilty "if ... there is no evidence on which the accused person could be convicted.".
    
63. The origins of a no case submission can be traced to jury trials. We do not have jury trials in this jurisdiction. A case on point is that of the Auckland City Council v. Jenkins (1981) 2 NZLR 363 which dealt with a no case to answer in a traffic prosecution. In that case, Speight J stated at p. 365:-
    

"A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is "prima facie – a well understood phase"".

64. I agree fully with that pronouncement and I adopt it as the test in this case.
    
65. Further I follow the guidelines as Lord Cance CJ made in Reg. v. Gailbraight (CA) (1981) 1 W.L.R. 1039 in this case. On such basis and after having taken into account the defence submissions of a no case to answer and the prosecutions response, I make the following ruling.
    
66. There is no evidence whatsoever adduced by the Prosecution to show:-
    
    • (a) that each defendant made an agreement with the others to carry out a scheme which had as it main objective of defeating the course of justice – either the investigations of alleged illegal fishing or the prosecutions of the two captains of the foreign fishing vessels locally based in Vanuatu and chartered by the Sound Fishing Company.
      
    • (b) That the defendants had an intention to defeat the course of justice or an intention to do something, which if achieved, would defeat the course of justice.
      
    • (c) That an attempt to pervert the course of justice was unsuccessful. The evidence shows that the fishing vessels were issued licences under the Fisheries Act shortly before they were apprehended. However, the licences are not in evidence.
      
    • (d) That the course of justice was actually perverted. There is no evidence from which it could be inferred that the Prosecution of the captains of the two vessels had an outcome that was incorrect in any way. The evidence shows that the charges were dropped on 12 November 2003. It does not say what the charges are and why those charges were withdrawn. The Addendum to the licence is not in evidence. Evidence shows that when the captains were charged the Regulations establishing the 12 mile zones were not in force and that this was the reason for dropping the charges. The Public Prosecutor at that time did not give evidence showing the reasons for the charges being dropped. The only evidence is that of Tari Tamata that the charges were dropped as the relevant Regulations were not in force.
      
67. There is evidence of searches being made in the Office of the Minister of Fisheries, Department of Fisheries, Tuna Fishing Company, residence of Guy Benard and computers, disks, documents being taken away. However, no evidence at all is adduced as to what was found in the computers, disks, and documents.
    
68. The evidence of Joe Seth is such that a reasonable jury properly directed or a reasonable judicial officer could not believe it.
    
69. The evidence by Miss Ericka Emelee does not:-
    
    • (a) give a time, when she typed the document;
      
    • (b) not say what kind of document or document relating to what subject matter;
      
    • (c) say who the document was taken to.
      
70. I have reached a conclusion that the Prosecutions evidence, at its highest, falls short of establishing a case to answer. I am specially of the view that a finding of guilt could not be made by "a reasonable jury or a reasonable judicial officer sitting alone" on the evidence thus far presented. It is my duty on application, to stop the case. I therefore rule as a matter of law that there is no evidence on which the five defendants could be convicted. I accordingly, enter a verdict of not guilty to each and everyone of the following defendants to the charge of conspiracy, Christophe Emelee, John Simbolo, Guy Benard, Stephen Kalsakau and John Less Napuati.
    
71. The Orders of the Court are as follows:-
    
    • (a) The defendants are hereby discharged.
      
    • (b) The bond of VT4 Million paid by Christophe Emelee into Court is to be released to Mr. Emelee as soon as practicable.
      

DATED at Port Vila, this 14th day of March 2006.

H. BULU
Judge.