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Obed v Public Prosecutor [2002] VUCA 37; CA 10-02 (1 November 2002)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA

APPELLATE JURISDICTION

Criminal Appeal Case No. 10 of 2002

JOHN DOUGLAS OBED

-v-

PUBLIC PROSECUTOR

Coram: Justice Bruce ROBERTSON
Justice John von DOUSSA
Justice Daniel FATIAKI
Justice Oliver A. SAKSAK

Counsels: Mr. Hillary Toa for the Appellant
Mr. Eric Sciba for the Public Prosecutor

Hearing Date: 25th October 2002
Judgment Date: 1st November 2002

JUDGMENT

This appeal against conviction only raises for consideration the proper exercise by a court of its power to amend a charge under Section 139 of the Criminal Procedure Code (Cap 136) (as amended by Act No. 13 of 1984). (‘the CPC’)

By an information dated 6^th May 2002 the appellant was originally charged with 2 counts as follows:-

Count 1

STATEMENT BLONG WRONG

SEXUAL INTERCOURSE WITH GIRL UNDER CARE or PROTECTION Agensem section 96 (a) of Penal Code Act CAP 135.

PARTICULARS BLONG WRONG

JOHN DOUGLAS OBED yu blong Tongoa. Samtaem long yia 1994 kassem yia 1995 insaed long ship MV Belama II taem ship istap long Vila, yu bin stap havem sexual intercourse wetem girl blong yu we hemi step daughter blong yu.

Count 2

STATEMENT BLONG WRONG

SEXUAL INTERCOURSE WITH GIRL UDNER CARE or PROTECTION Agensen section 96 (a) of Penal Code Act CAP 135.

PARTICULARS BLONG RONG

JOHN DOUGLAS OBED samtaem long yia 1995 kassem August 2001 long haus blong yufala long Tongoa, yu bin stap havem sexual intercourse wetem girl blong yu we hemi step daughter blong yu.

By a letter dated 10^th June 2002 the Office of the Public Prosecutor advised the Supreme Court that the evidence disclosed in the depositions was unclear as to times, months and dates and that the 1994 occasion was charged in Court 1 because the place (inside the MV Belama) and time of offence was disclosed in the complainants’ statements. Finally the August 2001 incident at Tongoa was charged in Court 2 because the month was provided.

By a further letter dated 7^th August 2002 the Office of the Public Prosecutor advised the Court that “Count 1 will be dealt with under section 15 paragraph (b) of the Penal Code (cap 135)” and it was intended “to make a formal withdrawal of Count 1 on the date set for trial and proceed only with count 2”.

Section 15 (b) of the Penal Code (Cap 135) prohibits the commencement of a criminal prosecution for an offence punishable by imprisonment of less than 10 years after the expiry of 5 years from the date of commission of such an offence. This means, in the present context, that the prosecution of the appellant for an offence that is alleged to have occurred prior to August 1997 would be time barred and could not be commenced against the appellant.

Be that as it may, the prosecutor’s written indication was verbally confirmed by the Public Prosecutor in open Court on 12^th August 2002 immediately before the commencement of the prosecution case. The trial against the appellant accordingly proceeded on Count 2 only.

We digress at this stage to note that the offence with which the appellant was charged namely, Section 96 (1) (a) of the Penal Code (Cap 135) itself contains an age restriction or limitation after which sexual intercourse with the complainant ceases to be an offence. The age limitation is that the complainant or victim must be ‘under the age of 20 years’ at the time of the commission of the offence.

In the present case it is common ground that the complainant was born on 15^th November 1980 and would have attained the age of 20 years on the 15^th of November 2000. Accordingly any sexual intercourse that occurred between her and the appellant after 15^th November 2000 would not be an offence contrary to section 96 (1) (a) of the Penal Code.

From the foregoing and without considering the substance of the prosecution’s evidence, Count 2 as charged in the information must be considered to be, at the very least, defective in form in so far as it refers in the particulars of the offence, to a date, namely ‘August 2001’, where the complainant would not have been ‘under the age of 20 years’.

Returning to the trial chronology. The trial lasted two days and the prosecutor called the complainant, her grand mother (Edmi Sami) and an aunt (Nancy Ishmael).

At the conclusion of the oral evidence the trial transcript reveals that the appellants’ statement under caution (S.U.C) was read and admitted as part of the prosecution’s case, then, the following relevant exchange occurred between the trial judge and counsels:

Court: Charge date is right?

Pros: (much consideration) No

Court: Gives out redraft copy charge

Pros: I ask to make amendment like that

Toa: We submit is late in making.

Evidence called......??

Should have been addressed out beginning or in the middle. Defendant may be prejudiced by such ...?

(15 minute break)

Toa: Defendant further denies the allegation and wishes to further cross examine Mrs. Sam and the complainants.

Pros. (Csiba) ask to talk to witness before they go in box.

Court: Will allow recall cross examination on extra ?

Not anything extra (?)”

The complainant and her grandmother were then recalled and further cross-examined and re-examined as to the appellants whereabouts during various times between 1996 and Dec 2001. Thereafter the trial record indicates that the prosecution closed its case and defence counsel made a submission to the trial judge maintaining the appellant’s ‘not guilty’ plea and complaining about the lateness of the amendment and adverting to the possible prejudice to the appellant arising therefrom.

In the light of the appellant’s complete denial of any sexual activity with the complainant, we are satisfied that no possible prejudice could be caused to the appellant by the amendment of the charge. Indeed the amendment of the charge was not only a necessity having regard to the age limitation in Section 96 (1), but was plainly intended to delimit more precisely the period of offending which appellant was required to answer. Additionally the recall of the principal prosecution witnesses for further cross-examination would have avoided any prejudice that might have arisen from the lateness of the amendment. There is no merit in this ground of complaint.

On 14^th of August 2002 the appellant was convicted by the trial judge for an offence of having sexual intercourse with his step-daughter who had lived with him intermittently from 1994 to 2001. During this time the prosecution alleged that sexual intercourse occurred between the appellant and his step-daughter on numerous occasions and at various locations over a period of 3 years between 31^st August, 1997 and 14^th November 2000. The appellant for his part pleaded ‘not guilty’ and adduced no evidence in his defence. He denied however having sexual intercourse with his step-daughter in his statement under caution to the police which was read and admitted as a prosecution exhibit.

In his judgment the trial judge accepted the complainants’ evidence which he said was corroborated in a material way by the evidence of an aunt and her grand-mother who lived with and witnessed, first hand, the nature of the relationship that existed between the complainant and the appellant. In particular the trial judge found that “(the appellant) had sexual intercourse with (the complainant) regularly as and when opportunity arose between 1994 and 2001. For the purposes of the charge I need only look for 31^st August 1997 to 14^th November 2001”. No specific incident was identified in the judgment however as having occurred in the period charged (as amended) nor does the evidence clearly establish the places where sexual intercourse is alleged to have occurred between the dates charged.

The appellant advanced several grounds of appeal which alleged various errors on the part of the trial judge in allowing the amendment of the charge after the prosecution had already closed its case.

Section 139 (1) of the CPC (Cap 136) gives the court power where it appears to it that the charge is defective, either in substance or in form to make such order for the alteration of the charge by way of amendment of the charge, as the court thinks necessary to meet the circumstances of the case and Subsection (2) expressly requires that such amendment to be ‘made before a trial or at any stage of the trial before the close of the case for the prosecution’.

The question whether or not the amendment of the charge in this present case occurred before or after the close of the case for the prosecution is a factual one that may be readily answered from an examination of the original court transcript in the absence of a contrary affidavit.

In this regard the typed transcript of the original handwritten court record earlier set out indicates that a copy of the amended charge was produced by the trial judge. It reads:

STATEMENT BLONG WRONG

Sexual Intercourse with Girl under Care or Protection C/s 96 (1) (a) Penal Code [Cap 135]

PARTICULARS BLONG WRONG

John Douglas Obed yu blong Tongoa mo yu stap live long Saratokora area long Port Vila, samtaem between 31^st August 1997 and 14^th November 2000 yu bin stap have sexual intercourse wetem girl ia long taem ia yu bin save gut se girl ia hemi step-daughter blong yu.

This amended charge was ‘further denied’ by the appellant and defence counsel’s request to recall 2 prosecution witnesses was granted. After the recalled witnesses were further cross-examined and re-examined the following relevant entry occurs in the court record:

“Csiba: That is prosecution case”.

It was at this stage in our view and not after the examination of the prosecution’s oral witnesses as suggested by appellants’ counsel, that the prosecution can be said to have closed its case. We are satisfied from the foregoing extracts of the trial record that the amendment of the charge occurred before the prosecution closed its case in strict compliance with the requirements of Section 139 (2) of the CPC and was entirely proper.

Furthermore Section 139 (3) clearly states that ‘variance between the charge and the evidence adduced in support of it with respect to the day upon which the alleged offence was committed is not material and the charge need not be amended’. The effect of this provision in our view is to render any discrepancy between the evidence led in support of the charge and the alleged date of the offence charged, a non-material particular that need not be amended.

The appeal fails in its entirety and is accordingly dismissed.

Dated at Port Vila, this 1st day of November 2002

Bruce ROBERTSON J.
John von DOUSSA J.
Daniel FATIAKI J.
Oliver A. SAKSAK J.