Public Prosecutor v Ahelmhalahlah [2013] VUSC 49; Criminal Case 4 of 2013 (25 March 2013)

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

Criminal Case No. 4 / 2013

PUBLIC PROSECUTOR

V

WALTERSAI AHELMHALAHLAH

Trial: 25 March 2013(at Lakatoro)
Before: Justice Robert Spear
Appearances: Gregory Takau for the Public Prosecutor
Eric Molbaleh and Roger Tevi for the Defence

JUDGMENT

1. The defendant faced two charges:
   
   1. Trespass with a Firearm – s. 30 Firearm's Act [Cap. 198].
      
   2. Malicious Damage to Property – s. 133 Penal Code Act [CAP.135]
      
2. The defendant had pleaded not guilty to those charges when first arraigned on 18 March 2013 and the case was put off for trial today 25 March 2013.
   
3. After the initial two witnesses gave their evidence, it quickly became clear that count 1 had no prospect of succeeding. Furthermore, the real issue around count 2 was whether it was possible that the defendant had an honest belief that he was entitled to cut down the partially built shed.
   
4. The defendant is the chief of this particular village on Malekula.
   
5. Almost exactly 2 years ago, the complainant Robin Samuel with assistance from other family members started to build a shed in the village that was intended to be used as a fuel station by the complainant. It would appear that because of financial difficulties, the structure was never completed.
   
6. On 23 December 2012, the defendant took a chainsaw and made a number of significant cuts into the structure effectively disabling it. This action had followed an earlier directive given by the defendant to the complainant (through a relative) that the structure had to be removed which advice was been complied with.
   
7. The complainant, in his evidence, is adamant that the structure had been erected on his land and indeed land that had been occupied by his family for generations. It appeared, however, that there had not been a lawful declaration of custom ownership by either a Land Tribunal or an Island Court and that custom ownership of the land has yet to be finalised.
   
8. At the commencement of the trial, an agreed statement of facts was presented under section 84 of the Criminal Procedure Code. Of importance is that the defendant admitted that on 23 December 2012 he "chopped down an incomplete house with a chainsaw" and that "at the time of the incident (he) had in his possession a rifle .22."
   
9. The difficulty with count 1 relates to the concept of trespass within a village and particularly in respect of the chief of that village. The particular area where the partially built shedis situated would have been freely accessible by all members of the village. In legal terms, they would have enjoyed a license to be able to enter onto that land and that license would continue until it was revoked. While there is some authority that a license does not permit entry on to a land if the purpose for entry is illegal, Mr Takau agreed that it would be difficult to advance that particular principle in this case.
   
10. In relation to count 2, the charge of Malicious Damage, the issue quickly became identified as whether a chief of a village had the right to order the removal of a building that could not be considered as having been "owned" by him. The first two witnesses were adamant that they did not consider that in custom their chief had that right. Over the lunch break, the defendant reflected on the evidence and the issue which had become the focal point of the case and conceded that he did not have that right.
    
11. When the Court convened after lunch, the defendant asked to be re-arraigned on count 2 and he pleaded guilty to the charge. He also made a public apology in Court to those assembled and he indicated that he was prepared to pay compensation and undertake a custom reconciliation ceremony.
    
12. Having heard from counsel on the question of disposition in respect of count 2, I indicated that I considered that the consequences of a conviction would outweigh the criminality of the action particularly bearing in mind the relationship between the parties in this small community, the public apology, the offer to pay compensation and a preparedness to undergo a custom reconciliation ceremony.
    
13. Accordingly, in respect of count 2, the defendant is discharged without conviction but on the condition that he pays compensation to the complainant of Vt 5,000 and that he undergoes a custom reconciliation ceremony all within 21 days.
    
14. In respect of count 1, Mr Takau conceded that this charge had no prospect of success and he offered no further evidence on that charge beyond that taken from the complainant, the other Mr Samuel and by the admitted facts. A verdict of Not Guilty is accordingly recorded and the defendant is discharged on that count.
    

BY THE COURT