Public Prosecutor v Noal [2008] VUSC 42; Criminal Case 17 of 2008 (18 June 2008)

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

CRIMINAL CASE No.17 OF 2008

PUBLIC PROSECUTOR

- v -

YOMANING JACKSON NOAL
PASCAL JOSEPH
NOEL NIKIAU

Mr Alain F. Obed for the Public Prosecutor
Mr Jacob Kausiama for the Defendants

MINUTES OF HEARING AND ORDER FOR WITHDRAWAL OF CHARGE

Defendants Yomaning Jackson Noal and Pascal Joseph are charged with the offence of arson, contrary to section 134 (1) of the Penal Code Act [CAP. 135]. The Defendant Pascal Joseph is charged with the offence of Aiding Arson, contrary to section 30 and 134 (1) of the Penal Code Act. The three (3) defendants pleaded not guilty to the offence they are each charged with. The trial proceeds for 1 day today 18 June 2008 on that basis. The prosecution called three (3) witnesses. Before the Prosecution end their case, the Court at the request of the Prosecution counsel, adjourned the trial for 5 – 10 minutes.

After the short adjournment, the prosecuting counsel applies to have the charges laid against each and all the three defendants withdrawn under section 129 of the Criminal Procedure Code Act [CAP. 136].

The Court queries whether a further adjournment of the trial is appropriate to allow the prosecution to summons further potential witnesses. One of the prosecution witnesses (police investigating officer, Harris Yoan testified that there were people who actually saw what happened but are not willing to give their names during the investigation of the alleged arson at Namburu area on the 3rd March 2007.

The prosecution counsel further informs the Court that the said persons who refused to give their names, do not provide any statement to the police.

Assessing such a situation, it is not appropriate to direct a further adjournment for the purpose of summoning other potential witnesses as there are none.

On that basis, the Court grants the application of the Prosecution to withdraw the charges of Arson and Aiding Arson, contrary to section 134 (1) and 30 and 134 (1) of the Penal Code Act (Cap. 135) against Yomaning Jackson Noal, Noel Nikau and Pascal Joseph, respectively.

The Defence counsel shall advise the defendants about the consequences of a withdrawal of the charges against them with a possibility of being re-charged on same offence after re-investigation by the police on same complaint if that is what the prosecution wishes to do.

The following orders are made:

ORDERS

(1) The offence of Arson, contrary to section 134(1) of the Penal Code Act, against defendants Yomaning Jackson Noal and Noel Nikau is withdrawn as per Prosecution Application of today 18/06/08 under section 129 of the Criminal Procedure Code Act (Cap.136).

(2) The offence of Aiding Arson, contrary to sections 30 and 134(1) of the Penal Code Act, against Pascal Joseph, is withdrawn as per Prosecution application of today 18/06/08 under section 129 of the Criminal Procedure Code (Cap.136).

DATED at Port-Vila this 18th day of June 2008

BY THE COURT

Vincent LUNABEK
Chief Justice