Public Prosecutor v Walker [2007] VUSC 61; Criminal Case 20 of 2007 (12 June 2007)

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

CRIMINAL CASE No.20 OF 2007

PUBLIC PROSECUTOR

-v-

KELL WALKER

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Bernard Standish for the Public Prosecutor
Mr John Malcolm for the Defendant

Hearing: 5 June 2007
Verdict: 11 June 2007

JUDGMENT

Introduction

This is the judgment of the Defendant, Kell Walker, in this case. The Defendant, Kell Walker, is charged with the offence of threats to kill, contrary to Section 115 of the Penal Code Act [CAP.135].

It is the prosecution case that on or about 31 January 2007, the Defendant, Kell Walker, an Australian citizen who currently resides in Port-Vila, Vanuatu, directly threatened to kill a Mr Glenn Frazer at El Gecko Restaurant by saying they would cut his head off and he was paid to deliver fine power.

The Defendant denied the charge against him and pleaded not guilty to it. The trial proceeded on this basis.

Direction on law

Section 115 of the Penal Code Act is the offending section. It provides:

"115. No person shall, knowing the contents thereof, directly or indirectly, cause any person to receive any oral or written threats to kill any person.

..."

This is a criminal trial. As in every criminal trial, the law is that the prosecution has the duty to prove each and all essential elements of the offence beyond a reasonable doubt against the Defendant. The Defendant is not required to prove his innocence. If the Defendant has to give evidence or call other person to give evidence on his behalf, I must consider his evidence and the evidence of his witness on equal basis as any evidence of the prosecution.

In this case, the Defendant elects to give evidence on his own behalf. However, the onus or burden of proving guilt of the accused person beyond a reasonable doubt rests upon the prosecution and it never shifts. The prosecution must prove beyond reasonable doubt that the accused person is guilty of the offence which he is charged before he can be convicted. If I have a doubt and the doubt is a reasonable doubt as to whether the accused committed the offence of threat to kill as alleged, it is my duty to give the accused the benefit of the doubt and to find him not guilty on the charge.

Proof beyond a reasonable doubt has been achieved when I as a Judge of fact feel sure of the guilt of the accused. It is that degree of proof which convinces the mind and satisfies the conscience so that I as a conscientious Judge of fact feel bound or impelled to act upon it. Conversely, when the evidence I have heard leave me as a responsible Judge of fact with some lingering or nagging doubt with respect to the proof of some essential elements of the offence with which the accused is charged so that I am unable to say to myself that the prosecution has proven the guilt of the accused beyond a reasonable doubt as I have defined these words, then, it is my duty to acquit the accused. If I believe the accused and he did not commit the offence or what he did lacks some essential elements of the offence or if the evidence of the accused either standing alone or taking together with all of the other evidence leave me in a state of reasonable doubt I must acquit him. But if upon consideration of all of the evidence taken together at the end of trial, the arguments of counsel and the charge, I am satisfied beyond a reasonable doubt as I have defined these words above, it is my duty to convict the accused. I must say that it is rarely possible to prove anything with absolute certainty. So the proof or the burden of proof on the prosecution is only to prove guilt beyond a reasonable doubt. When I speak of reasonable doubt I use the words in their ordinary natural meaning, not as a legal term having some special connotation. A reasonable doubt is an honest and fair doubt based on reason and common sense. It is a real doubt, not an imaginary or fanciful doubt which might be conceived by an irresponsible judge of fact to avoid his or her plain duty. This is emphasized by Section 8 of the Penal Code Act [CAP.135] in these terms:-

"8.(1) No person shall be convicted of any criminal offence unless the prosecution shall prove his guilt according to the law beyond reasonable by means of evidence properly admitted; the determination of proof of guilt beyond reasonable doubt shall exclude consideration of any possibility which is merely fanciful or frivolous.

(2) In determining whether a person has committed a criminal offence, the Court shall consider the particular circumstances of the case and shall not be legally bound to infer that he intended or foresaw the natural or probable consequences of his action.

(3) If the prosecution has not proved the guilt of the accused, he shall be deemed to be innocent of the charge and shall be acquitted forthwith."

Summary of Evidence

The records of the evidence are contained in the notes of evidence and in the court file (which are not destroyed by the fire on 7 June 2007). What I propose to do is a summary of evidence. The trial is a short one and is on a very narrow issue whish is:

Did the Defendant, Kell Walker, threatened Glenn Fraser on 31 January 2007 at El Gecko Restaurant by saying they are going to cut his head off?

The background leading to the alleged incident and subsequent events are relevant. The following facts are agreed between the prosecution and the defence:

(1) A meeting took place at El Gecko Restaurant Café between the complainant Glenn Frazer and the accused Kell Walker. There were other people there but they were not privy to the conversation between the complainant and the accused.

(2) On 1 or 2 February 2007, a second meeting between the complainant Frazer and the accused Walker took place at Number 1 Café on proximity of others who are not privy to the conversation.

(3) The statement of Robert Lofting dated 24 May 2007 and that of Allen Musica dated 14 February 2007 can be admitted by consent without cross-examination on the basis that they are evidence of the meetings but not corroboration of what was said.

The evidence of the prosecution is given by the complainant Glenn Frazer and Allen Bani, a police Inspector of Transnational Crime. Frazer gave evidence to the effect that a Mrs Naylor called him to attend a meeting at El Gecko on 31 January 2007 at 10.30AM. When he arrived, Naylor and Tartar were there. Naylor introduced herself. Then the accused, Kell Walker arrived with a person he now knows as Robert Lofting.

Naylor and Tartar walked away. Walker and his companion sat with him. Mr Lofting sat at the end of the table. The accused started the conversation by talking about the type of cigars the complainant smokes.

The accused then asked the complainant whether he knew anything about his boat Retriever 1. He said he told the accused that Retriever 1 was ran by Michael Hatcher. The boat came from Adelaide to Fiji and then Vanuatu. Michael Hatcher is a salvage business person. He is based in Singapore and Australia. The Japanese own the boat. He said the accused asked him who are the Japanese. He said initially the accused was friendly and then he changed the tone when he raised the topic about the Japanese. This witness said he felt very frightening. He said the accused said the Japanese were very unhappy about what happened. The Japanese want their money back. He said he disclosed the facts about M. Clare. He said the accused told him that something went wrong with the money paid by the Japanese in a company (ISSI). The accused told him Clare had 40 million dollars. He said he told the accused that this was a bullshit. Michael Hatcher was a liar. This witness said to his knowledge, he introduced Clare to the Japanese investors. He said the conversation was also on matters before the Court in Queensland, Australia. The accused told him they should take care of Michael Hatcher because Hatcher has also interest in the company. He said the accused told him that he brought fire guns in Vanuatu and if he had not the trouble with Peter Foster he (the witness) would be dead already. The witness said he did not know who Peter Foster was. He knew Foster through media. The accused had been in Vanuatu for 12 months. He said the accused would take picture of him and he was going to be an example for Clare. He said, the accused told him the Japanese lost confidence. They need their money back. He said he was scared. That was the first time he met the accused.

He said the accused said that the Court case in Singapore involved Clare and Clare had no contest. Clare must negotiate the return of money. The witness said he knew about the Court case in Singapore. It was about a boat arrested in Singapore. He said the accused said he (witness) would have to act or they would fly someone here. He said as the accused was leaving, he asked him if he was going to die and he said the accused told him: "they were going to cut your fucking head off". He said he was terrified. The accused told Lofting to pay the bill for the coffee.

Further before the accused left, the witness said they are tapping his telephones and he said he had proof of what he said. The accused left towards Number 1 Café. The witness said he went to his car and was scared so he went towards the accused and asked him about the proof of what the accused told him. He said the Accused told him that he will come back to him on that.

Further, on the same day, he got a telephone call from Walker to meet him. The accused told him he has nothing to worry about and 6 months before anything to happen. The accused asked to meet him at the boat at 6.00 o’clock. He said he did not meet the accused at 6.00 o’clock. He said he phoned Clare and they both agreed it was not a good idea. The accused met with the witness at Number 1 Café. Walker met him there and he was carrying a yellow plastic bag. The accused came with Lofting. Lofting sat at a table away. He said the Defendant dropped the documents contained in the yellow plastic bag to his legs. The documents contained a picture of himself (witness), the telephone records of the witness and Clare, some pages taken out of the telephone Directory Book in New Zealand of Clare. Telephone bills of Mrs Clare in Singapore, his (this witness) telephone bills in Singapore Hotel, a map of Napier where Clare house is; where his parents live; a picture of Clare’s lawyer; paper on the court case between the Japanese, Michael Hatcher and Clare.

He discussed the situation with Clare who left Vanuatu. The witness said he set up security guard around his house for a short period of time as he has no fund to maintain and arrange the security around his residence and family He filed a written complaint to the police the next day the threats occurred.

Mr Frazer was cross-examined. He confirmed he had a meeting with the accused at El Gecko Restaurant on 31 January 2007. He confirmed he had a phone call from Ms Naylor about the meeting with the accused at the request of the accused. He said he discussed the phone call with Mr Clare. Clare and he discussed and agreed he might go and see the accused. He said he had a share of 2 million dollars. Lawrence Philips got 17 millions; Michael Hatcher 5 million dollars. The witness clarified that the court case in Singapore has nothing to do with the case in Australian Courts. The case in Singapore is about the loss of a boat. He said he was asked to mediate and he got 2 million dollars 2 years before he come to Vanuatu. He got 2 millions by buying shares into Michael Hatcher’s company.

It was put to him that there was no threat to him by the accused Kell Walker on 31 January 2007 as he alleged. He said if Mr Walker will say that in his evidence, he will be lying to the Court. The witness confirmed that he was shock. He was not calm. He was fear for his life. He was afraid. He had Robert Lofting sitting in the back as a body guard. He said Kell Walker spoke in strong words but did not raise his voice. He confirmed that Walker told him they will cut his (#) head off. He said the accused was leaning to his face when he said "they were going to cut your fucking head off". He confirmed Walker talked about transferred of shares in Australia. He confirmed Walker told him they took fire power guns in Vanuatu and someone is going to be flying-in in 6 months time. He confirmed he discussed the threat by the accused with Mr Clare. He confirmed he and Clare went to the police the next day and lodged the complaint against the accused.

He said he then took recording of what was said in the second meeting. He said he took notes of meeting in the second meeting. He was fear of his life. He said the notes are with the prosecution. He confirmed a page of notes shown to him to be notes he took of the meeting but he confirmed and mentioned that the threats occurred at El Gecko Restaurant. There was no threat in the second meeting at Number 1 Café. He said the Courts said there was no problem with the sale of shares and the Courts in New Zealand said that there was no case.

Police Inspector Allen Bani gave evidence that he is the Officer in charge of Transnational Crime. He investigated in this case. He was involved when he was approached to talk to Frazer and Clare. He had received a phone call from MP Moana Carcasses about 5.15PM saying he will see two (2) expatriates from New Zealand and Australia.

He had a meeting with Frazer and Clare. He then said he sent someone to take their statements. He said Frazer gave him a bundle of documents. The documents were sent to Australia for finger print test. The documents contained the finger prints of the accused, Kell Walker.

He confirmed Frazer gave him a digital audio of the conversation taken at the second meeting at Number 1 Café. The conversation in the tape was between Frazer and Walker. The discussions were about some money and something. The quality was not so good. He sent it to Australia. The conversation was put into a CD and was in the file he provided. He said in the tape, there was no threat coming out in the CD. He confirmed Frazer spoke to him about threats.

Police officer Bani was cross-examined. He confirmed some of the documents tested have the finger prints of the accused Kell Walker. There was no threats of the second meeting but from the start of conversation, Glenn Frazer was shaky. He confirmed Frazer gave him notes of meeting, the yellow plastic bag and the notes of conversation taken.

The Defendant gave evidence. He accepted he had 2 meetings with Mr Frazer. He said he is a salvage master and he is the master of the vessel Retriever 1. He arrived at Port-Vila on 8 January 2007 on board the vessel Retriever 1 and the vessel was under his command. He met Frazer at El Gecko on 31 January 2007 at his request. He did not meet Frazer before to that meeting. The meeting started with some talk over cigars they smoke. He said prior to the meeting, he was informed by Ms Naylor that she was contacted by Frazer that there were numerous discussions about Retriever 1 and why Retriever 1 was in Port-Vila. He said he was informed that Frazer stated that they were involved in salvage operation he was previously involved in. He said he asked Frazer about the ship in Melbourne and his interest about the ship. He said Frazer discussed with him that the Japanese were funding the ship that Michael Hatcher was involved in the salvage project. He said he did so as a fishing exercise to find out what Frazer knew about ships on the Japanese and everyone else.

He said he went on to discuss the case that was before the High Court in Singapore in admiralty jurisdiction on information supplied by Glenn Frazer.

He said he went on to discuss the issues in respect of the ship and he said he stated to Frazer that they wished to negotiate a settlement in respect to the ship. He said the ship was sold by the Sheriff in Singapore. The amount was in excess of 60,000,000 US$. He said he went on to discuss the matter in great detail. He said he suggested to Frazer that the matter should be settled out of Court. The money paid for the ship to Frazer was 2,000,000$ and 40,000,000$ to Clare. These matters in Singapore should be negotiated and settled out of Court as the money was obtained by Frazer and Clare from the Japanese by shares in Fruitless Company. He said he sought to settle the claim in Court in Singapore by consent and without admission to liability. He said he told Frazer that he should make some restitution from the money of 2,000,000$. He said it was a fraud activity and the Japanese wanted their money back.

He said he did not threaten Frazer. He denied making threat to Frazer to cut his head off. He said Frazer did not take any notes during the meetings. He said he arranged for another meeting with Frazer while Mr Lofting was present. He made two phone calls to Frazer asking Frazer to discuss further and another meeting asking what the decision was. Frazer did not tell him what his decision was.

The accused Kell Walker was cross-examined. He said the meeting at El Gecko was arranged at his request. He had meeting with Frazer because Frazer discussed on numerous occasions about Retriever 1. He admitted he was in Vanuatu 12 months before. He said he was asked to make investigation about Clare and Frazer. He said he is not a private investigation but the money taken from the Japanese were involved in salvage activity in Indonesia. He said Clare and Frazer took the money for their own benefit. The money did not belong to them but to them (accused, Hatcher and the Japanese).

He said Frazer owed him money. He gave evidence that he was involved in salvage operation. He was an interested party in the case before the Court in Singapore. He purchase Retriever 1 and carried 9 months work on the boat. They were seeking to recover the funds Frazer took from the Japanese and others. He admitted he has no share in the company Frazer took the money.

He denied he needed to have money on behalf of the Michael Hatcher. He said the case in Singapore was about the arrest of a boat in Singapour. He said neither Frazer nor Clare were parties to the case.

He recognized the bundle of documents tendered to him. He admitted he handled the documents to Frazer at Number 1 Café on 2 February 2007. He denied Frazer and Clare were parties to the action in Singapore. He said Clare was the Director of the Company Ultramarine Holdings Limited.

He denied he come to Vanuatu to see Frazer. He said the only reason that Frazer come into picture was because Ms Naylor told him about Frazer so he saw him in the meeting. He denied that he had threatened Frazer and Clare.

He admitted he is not a party to the action before the Courts in Singapore. He said Hatcher is a party. Hatcher is employing him and he purchased the Retriever 1. He has a contract of employment by Hatcher. He denied he come to Vanuatu to put his headings on Clare and Frazer. He said proceedings in Singapore are continuing. The Japanese paid in excess of 60 million dollars. Clare received 40 million dollars. Frazer 2 million dollars and others in New Zealand and Australia received 7-8 million dollars and are subject to further charges by the police.

He denied Hatcher’s company had a shortfall in fund. They seek to recover the money.

He admitted that on the previous 12 months he came to Vanuatu to conduct an investigation on Frazer and Clare. He said he was looking at what properties and assets Frazer and Clare have bought. He admitted he took photographs, phone bills and addresses of Clare and Frazer as part of due diligence operation which he carried out.

He admitted he knew that Clare and Frazer were legally represented in Singapore case. He said he is a beneficiary of the money taken by Frazer and Clare. He came to Vanuatu to settle the dispute.

He denied he was instructed. He admitted during the meeting Lofting was there. He is a member of his crew. He said there was no shouting, no voice raising at the first meeting. He did not threaten somebody in a public place. There were Federal Police there. He said Lofting was privy to the conversation but did not participate in the meeting.

He denied he told Lofting to have a look out during his meeting with Mr Frazer at El Gecko and Number 1 Café. He denied he gave the documents to Frazer in order to intimidate him. He finally admitted that he is not a party to the case at Singapore. He denied the money affected him personally. He said he told Frazer that the Japanese are losing face.

He denied he told Frazer that he brought five points guns. He denied he told Frazer to be an example for Clare. He said Frazer was nervous about the meeting before the meeting started. He denied he told Frazer that they will cut his head off.

He admitted Frazer came to him after he walked to Number 1 Café. He admitted Frazer asked him for proof o what he (the witness) said in the meeting at El Gecko. He conceded that this led to organize the second meeting and he brought the documents. He conceded he called him by phone. He suggested to him to come on the slip but he met Frazer at Number 1 Café. He said he left the yellow plastic bag to Frazer.

Discussions: Findings and Credibility

The evidence establishes the following:-

Mr Glenn Frazer was invited to a meeting at El Gecko by Ms Naylor. Naylor did arrange the meeting at El Gecko on 31 January 2007 at the request of the accused. The accused did attend the meeting at El Gecko on 31 January 2007 in the morning.

At El Gecko, I find that the conversation took place between the accused, Kell Walker and Frazer. Mr Robert Lofting was sitting at the side of the table and did not take part in the conversation. I find that Lofting was there at the instruction of the accused to be on the look out for and report to the accused any persons he may observe who might be taking particular interest in the meeting as shown in the sworn statement of Lofting which was put into evidence by consent of the prosecution and the defence.

On the basis of the evidence that I have heard and upon consideration, assessment and the demeanor of the witnesses, I find that Frazer is a reliable witness. I accept the evidence of the prosecution witness Glenn Frazer, that the accused Kell Walker, did threaten Frazer at El Gecko in their meeting of 31 January 2007 and I reject the version of the facts given by the Defendant, Kell Walker. I find Kell Walker is evasive and non-responsible in his answers to the questions. The accused took a lengthy time to admit that he is not a party to the action in the Courts in Singapore despite the fact that on the face of the documents he gave Frazer on the second meeting at Number 1 Café, he is not a party to the court case in Singapour and on inference the accused must have known this as a matter of fact.

The accused has a contract of employment with Michael Hatcher. I find that the accused came to Vanuatu to see Frazer and Clare. This is supported by the fact that the accused Walker did come to Vanuatu during the 12 previous months where Frazer and Clare were both living in Vanuatu with their families. During those 12 months, the accused Walker took photographs of Frazer and Clare, their families, their addresses and the telephone numbers and telephone bills accounts including their residence as part of a due diligence or surveillance.

I find it difficult to accept that conducting surveillance on people, their phone calls; finding out where people’s family live in a Foreign country is party of a salvage master’s activity.

The accused accepted that if one of the parties is successful in the case before the courts in Singapore he would get some money.

It is a fact that if a threat is made, the impact on the person by his voice is important and will be taken seriously. I accept Frazer’s evidence that he was frightened despite the fact that the accused did not raise his voice during the threat and subsequently, took steps to protect his residence and family.

It is an accepted fact that, Kell Walker told Frazer at El Gecko that he did bring in Vanuatu five power guns and that if it had not the trouble of Peter Foster, he would already be dead. It is also a fact that Frazer took steps to get what Walker knew. On the second meeting at Number 1 Café, Frazer took notes. He reported the matter to the police on the same day.

I find there are overwhelming evidence against the accused, Kell Walker.

I am satisfied on beyond reasonable doubt that the accused, Kell Walker threatened to kill Glenn Frazer on 31 January 2007 at El Gecko by saying that they were going to cut his # head off.

Verdict

I find the Defendant guilty on the charge of threats to kill a person, contrary to Section 115 of the Penal Code Act [CAP.135] on the criminal standard of beyond reasonable doubt. The cases of Dudley Aru (complainant) v. Arripaea Mare Salmon (Defendant), Criminal Case No.13 of 1998, which was referred to the Court by the Defence, must be distinguished on facts.

The submissions on sentence are scheduled for hearing on Wednesday 13 June 2007 at 3.00PM.

DATED at Port-Vila this 12th day of June 2007

BY THE COURT

Vincent LUNABEK
Chief Justice