Public Prosecutor v Kalosil [2015] VUSC 111; Criminal Case 73 of 2015 (27 August 2015)

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MOANA CARCASSES KALOSIL
SILAS ROUARD YATAN
PAUL BARTHELEMY TELUKLUK
TONY NARI
SERGE VOHOR
JOHN AMOS
ARNOLD PRASAD
STEVEN KALSAKAU
TONY WRIGHT
SEBASTIEN HARRY
THOMAS LAKEN
MARCELLINO PIPITE
JONAS JAMES
JEAN YVES CHABOT
WILLY JIMMY TAPANGARARUA
ROBERT BOHN
THOMAS BAYER

1. The pivotal issue for consideration before this Court is whether the Public Prosecutor can institute a prosecution of persons pursuant to Section 9(2) & (5) of the Public Prosecutor Act [CAP 293] for offences under the Leadership Code Act [CAP 240] for which a preliminary inquiry was held, but for which the persons were not committed for trial.

2. The Public Prosecutor submits that Section 9 subsections (2) & (5) of the Public Prosecutor Act gives the Public Prosecutor power to institute proceedings in the Supreme Court where the Magistrate’s Court has held a Preliminary Inquiry hearing for an offence or offences but for which the accused persons were not committed to the Supreme Court for trial. Section 9 (5) is in the following terms:

3. Mr. Timakata submits further that section 39 of the Leadership Code Act provides that proceedings against a leader for a breach of this Code, or against another person under section 30, are to be conducted in the same way as any other criminal proceeding.

4. The thrust of the submissions filed by defence counsel is that the public prosecutor cannot invoke section 9 (2) & (5) of the Public Prosecutor Act as a basis for preferring the same charges again given the fact that the Magistrate had conducted a preliminary inquiry upon the evidential material before committing the accused persons to the Supreme Court for trial.

5. The defence further submits that the Public Prosecutor has no right to continue the charges against the accused persons under the Leadership Code in the circumstances here and that if convicted on the Penal Code charges, it is open for a Leadership Code breach subsequently.

6. It is further submitted by defence counsel that it would be a shame to embark on a 2-3 week trial involving 16 Defendants, about 8 lawyers and 48 witnesses, if this is a flawed prosecution, not authorized or instructed by law by the Public Prosecutor, and that it would be a serious waste of resources if a Judicial Review of that decision is required.

7. Furthermore, the defence submits that under the interpretation of the Public Prosecutor Act, the Public Prosecutor means someone appointed under Article 55 of the Constitution and, since there is a new Public Prosecutor in Vanuatu, Mr. Timakata no longer has any standing to prosecute this case.

8. In relation to the Ombudsman’s Report, the defence submits that the Special Preliminary Report prepared by the Ombudsman was not an “Ombudsman Report” as required by the Ombudsman Act given the fact that there was no “due enquiry” carried out by the Ombudsman.

10. A relevant portion of the Chief Magistrate’s decision dated 7thAugust 2015 reads as follows: “this Court Rules that the charges laid against the accused persons under the Leadership Code Act will not be considered in this matter. The prosecution is, however, at liberty to recharge the Accused persons under the Leadership Code Act but must first ensure that the requirements and the processes outlined in sections 34 to 38 of the LC Act are followed.” (See page 3 at paragraph 2 of the Decision on Preliminary Inquiry Submissions.)

11. My understanding is that during the Preliminary Inquiry, the accused persons were committed for trial on charges relating to the Penal Code Act [CAP 135] and then the Court observed that the prosecution was “at liberty to recharge the accused persons under the Leadership Code Act.....” It appears to me that this is what the Public Prosecutor seeks to do now by re-submitting the charges and instituting prosecution under the Leadership Code Act.

The defence has, however, submitted that the Prosecutor has no right by his act to overrule a Magistrate and in particular in a double jeopardy situation. To my mind, this submission is misconceived and I hereby reject it.

The defence submits that if the accused persons are convicted on the Penal Code charges, it is open for a Leadership Code breach subsequently.

12. I agree that the first step to be taken by the public prosecutor in any prosecution for a Section 27 Leadership Code Ac nce is by proving &#ng ‘the essential elements’ which are:

As Justice Treston noted in his judgment in Sope v Republic of Vanuatu [2004] VUSC 64; Civil Case 049 of 2004 delivered in Port-Vila on 26 July 2004, “as a matter of pure logic in these circumstances the Penae Act prosecution mion must predate and precede the Leadership Code Act prosecution”.

“1. A leader who is convicted by a court of an offence under the Penal Cod0;Act [CAP 135] an5] and as listed in subsection (2) is:

(a) in breach of this Code; and
(b) liable to be dealt with in accordance with sections 41 and 42 in addition to any other punishment that may be imposed under any other Act.

2. The offences are:

(a) intentional homicide;
(b) intentional assault causing death or damage of a permanent nature.
(c) rape or attempted rape;
(d) abduction;
(e) incest;
(f) sexual intercourse with a girl under care or protection;
(g) indecent assault;
(h) a serious intentional assault;
(i) perjury;
(j) making a false statement;
(k) fabricating or destroying evidence;
(l) conspiracy to defeat justice;
(m) corruption and bribery of officials;
(n) theft or misappropriation or false pretences;
(o) fraud or fraudulently obtaining credit;
(p) receiving property dishonestly obtained;
(q) demanding with menaces;
(r) robbery;
(s) extortion;
(t) forgery or uttering forged documents;
(u) unlawful discrimination;
(v) unlawfully entering;
(w) any of the offences under Part XV&#f the Representatintation of the People Act [CAP. 146];
(x) attempting to commit any of these offences.

3. This section does not limit the power of a court to deal with a person under any other Act."

"19. Breach of Leadership Code<

A person who does not comply with Part 2, 3 or 4 is guilty of a breach of this Code and is liable to punishment in accordance with Part 6.

21. Acceptance of loans

A leader must not accept a loan (other than on commercial terms from a recognised lending institution and only if the leader satisfies the lending institution's usual business criteria or in accordance with the customary practice of a particular place for or during a traditional ceremony), advantage or other benefit, whether financial or otherwise, from a person.

23. Bribery

A leader must not:

(a) corruptly ask for or receive; or

(b) agree to ask for or obtain; or

(c) corruptly offer,

any money, property, or other benefit or advantage of any kind, for:

(d) himself or herself, or

(e) another person or body,

in exchange for his or her acts or omissions as a leader being influenced in any way, either directly or indirectly."

The defence submits that since there is a new Public Prosecutor in Vanuatu, Mr. Timakata no longer has any standing to prosecute this case.

18. The defence concedes that section 9(2) of the Public Prosecutor Act confers on the Public Prosecutor the power to commit for trial in respect of an offence for which a preliminary enquiry was held but the person was not committed for trial.

19. However, it is their further submission that, at the time when Mr. John William Timakata re-submitted the charges on the 18th of August 2015, he was not the Public Prosecutor as appointed under Article 55 of the Constitution and therefore he was not capable of instituting a prosecution of the accused persons under the Leadership Code Act as he did not have the power to do so. The defence further submits that only the Public Prosecutor as appointed under Article 55 of the Constitution has such power and discretion to prosecute.

20. This Court takes judicial notice that on 4 August 2003, the Public Prosecutor Act [CAP 293] commenced operation in Vanuatu. This legislation sets out, inter alia, the roles and responsibilities of the Public Prosecutor. The purpose of the Act is to set out the manner of appointment of the Public Prosecutor and other prosecutors and the roles and responsibilities of prosecutors.

21. The new Public Prosecutor, Mr. Josiah Naigulevu, whose term officially started on 1st August, 2015 appointed senior prosecutor, Mr. Karae Tristan, to act on his behalf until he settled into his office on the 16th of August 2015. Thereafter, in exercise of the powers conferred on Mr. Karae Tristan by Section 22 (1)(c) of the Public Prosecutor Act [CAP 293], he appointed Mr. Timakata John William M on the 3rd day of August, 2015 to be a State Prosecutor for this specific Criminal Case of Public Prosecutor v Moana C. Kalosil & Ors and the Order commenced on that specific day.

22. Moreover, in his sworn statement filed on 21st day of August, 2015, in support of his submissions as to institution of proceedings under the leadership Code Act, Mr. Timakata deposed to the fact that he was appointed on 7th April 2015 by the President of the Republic of Vanuatu on the advice of the Judicial Service Commission as the Acting Public Prosector of the Republic of Vanuatu.

23. Accordingly, I am satisfied that when Mr. John William Timakata re-submitted the charges on the 18th day of August 2015, he had and still has standing to prosecute this Criminal Case of Public Prosecutor v Moana C. Kalosil & Ors.

24. In relation to the Procedures under the Leadership Code Act relating to the institution of the current proceedings against the accused persons, prosecuting counsel submits that they were complied with. Furthermore, that the Ombudsman, following a complaint filed, had investigated and provided a copy of the Special Preliminary Report dated May 13, 2015 on the alleged bribery of 18 Members of Parliament by the President of Green Confederation Party and Leader of the Opposition Moana C. Kalosil. It is further submitted that this report was received and considered by the Public Prosecutor in accordance with the Leadership Code Act.

25. For their part, having conceded that a Special Preliminary Report was prepared by the Ombudsman and sent to the Public Prosecutor, the defence nonetheless argues that there is no evidence to suggest that a copy was sent to the Commissioner of Police within 14 days after the Ombudsman had forwarded his findings to the Prime Minister. It is further submitted by the defence that the Ombudsman in compiling the Special Preliminary Report did not conduct his own investigation as required by Section 34 (1) of the Leadership Code Act but merely used documents that were obtained by the Vanuatu Police Force.

26. What does compliance with the procedures entail? The answer is to be found in PART 5 of the Leadership Code Act which provides as follows:

PART 5 – INVESTIGATION AND PROSECUTION OF LEADERS

34. Role of Ombudsman

(1) The Ombudsman must investigate and report on the conduct of a leader (other than the President):

(a) if the Ombudsman receives a complaint from a person that a leader has breached this Code. or

(b) if the Ombudsman has formed the view on reasonable grounds that a leader may have breached this Code.

(2) The Ombudsman must have (sic) a copy of the report to the Public Prosecutor and where, in the opinion of the Ombudsman, the complaint involves criminal misconduct, to the Commissioner of Police within 14 days after forwarding his or her findings to the Prime Minister under Article 63 (2) of the Constitution.

(3) Where an Act provides for the functions, duties, and powers of the Ombudsman, the provisions of that Act will apply when the Ombudsman is carrying out an investigation under this Act.

(4) Notwithstanding subsection (3), for the purpose of fulfilling any function or duty lawfully conferred or imposed on the Ombudsman under this Act, the Ombudsman:

(a) shall have full access at all convenient times to Government contracts, documents, books, accounts and any other material that relates to and is relevant to the investigation; and

(b) may, by notice in writing signed by the Ombudsman require any person having possession or control of any Government contract, documents, books, accounts or any other material that relates to and is relevant to the investigation to deliver such document or documents to the Ombudsman at such time and place as is specified in the notice; and

(c) may cause extracts to be taken from any Government contract, documents, books, accounts or any other material that relates to and is relevant to the inquiry without paying any fee therefore.

(5) Where a person falls to comply with a notice or any other requirement under subsection (4) the Ombudsman may apply to the Supreme Court for an order requiring that person to do so.

(6) Where the complaint is against the Ombudsman the investigation will be carried out by the Attorney General in accordance with the procedure set out in this part as if the Attorney General were vested with all the functions, duties, discretions and powers of the Ombudsman.

35. Public Prosecutor to consider Ombudsman's Report

(1) The Public Prosecutor must:

(a) consider the report; and

(b) if, within 14 days of receiving the report, is of the opinion that further investigation is required, refer the report to the Commissioner of Police for that purpose; (underlining mine) and

(c) after receiving the results of the investigation, decide whether there are sufficient grounds to prosecute the leader or any other person.

27. It is noteworthy that even though the requirements under section 35 above are conjunctive, the Public Prosecutor need only comply with (a) which is that he must consider the report. It then seems that he can exercise his discretion as to whether to refer the report to the Commissioner of Police for further investigation. This could be done if, within 14 days of receiving the report, he is of the opinion that further investigation is required.

28. Thereafter, the Public Prosecutor is to decide on prosecution pursuant to section 37 which states:

(1) The Public Prosecutor must decide, within 3 months of receiving the report, whether there are sufficient grounds or evidence to support a prosecution under this Code or under any other Act.

(2) The Public Prosecutor may decide not to prosecute only on the basis that there are insufficient grounds or evidence to support a prosecution, or that the complaint is vexatious, frivolous or trivial.

(3) If the Public Prosecutor decides not to prosecute a person, he or she must:

(a) notify the Prime Minister of the decision within 7 days of making the decision, giving reasons for the decision; and

(b) publish a notice in the Gazette within 14 days of the decision, stating that he or she has decided not to prosecute, and setting out the reasons for the decision.

38. Proceedings against leader

(1) If the Public Prosecutor decides that there are sufficient grounds to support a prosecution, he or she must begin proceedings within one month of deciding to prosecute a leader.

(2) If the Public Prosecutor is not able to begin proceedings against the leader, or has not been able to decide whether to prosecute or not, within 3 months because the matter is complex, the Public Prosecutor must:

(a) notify the Prime Minister of this, and tell the Prime Minister that he or she needs an extension of another 3 months to complete consideration of the matter, and

(b) publish a notice in the Gazette to this effect.

(3) The Public Prosecutor must decide the matter and either begin the proceedings, or publish the notice, before the end of that second period of 3 months.

39. Conduct of proceedings

(1) Proceedings against a leader for a breach of this Code, or against another person under section 30, are to be conducted in the same way as any other criminal proceeding.

Having read and considered all the submissions filed, I am satisfied that the answer to the issue posed at the commencement of this Ruling is in the affirmative. It is beyond dispute that the Public Prosecutor can institute a prosecution of persons pursuant to Section 9(2) & (5) of the Public Prosecutor Act [CAP 293] for offences under the Leadership Code Act [CAP 240] for which a preliminary inquiry was held, but for which the persons were not committed for trial.

Mr. John Malcolm for:	Moana Carcasses Kalosil Silas Rouard Yatan Arnold Prasad Jean Yves Chabot Robert Bohn
Mr. Robin Tom Kapapa for:	Paul Barthelemy Telukluk Steven Kalsakau Marcellino Pipite Willy Jimmy Tapangararua
Mr. Justin Ngwele for:	Tony Nari John Amos Sebastien Harry Thomas Laken
Mr. Colin Leo for:	Serge Vohor Anthony Wright Jonas James
Mr. Nigel Morrison for:	Thomas Bayer

Supreme Court of Vanuatu

Public Prosecutor v Kalosil [2015] VUSC 111; Criminal Case 73 of 2015 (27 August 2015)