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Massing v Public Prosecutor [2008] VUCA 17; Criminal Appeal Case 3 of 2008 (25 July 2008)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appellate Jurisdiction)

CRIMINAL APPEAL CASE No.03 OF 2008

BETWEEN:

WELL MASSING
JOSEPH MASSING
API MASSING
GIDEON MASSING
DANIEL MASSING
MAHIT MASSING
ANDY MASSING
GEORGE MASSING
Appellants

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Justice John von Doussa
Justice Oliver Saksak
Justice Christopher Tuohy
Justice Mark O’Regan

Counsel: Mr Hillary Toa for the Appellants
Mr Bernard Standish for the Public Prosecutor

Date of hearing: 14 July 2008
Date of judgment: 25 July 2008

MEMORANDUM

The Notice of Appeal filed on behalf of the appellants dated 26 March 2008, the Amended Further Notice of Appeal dated 21 April 2008, and the Notice for Leave to Appeal Out of Time dated 26 March 2008 were again listed for consideration by the Court of Appeal during the July 2008 sittings.

The matters first came before the Court of Appeal on 24 April 2008, and are discussed in a Judgment of the Court of Appeal dated 30 April 2008. A copy of that judgment is attached to this Memorandum.

As the Court of Appeal pointed out in its judgment, the Notice of Appeal was filed more than 2 years and 2 months out of time. Moreover, the Amended Notice of Appeal only challenges the length of the sentence of imprisonment imposed on each of the appellants, yet the grounds of appeal seek to raise issues which challenge their guilt.

On 24 April 2008, the Court of Appeal adjourned the applications then before it to the July 2008 sittings for the purpose of allowing the appellants time to take action, if so advised, to seek to withdraw their pleas of guilty, and to set aside their convictions for premeditated intentional homicide contrary to Section 106(1)(b) of the Penal Code Act [CAP.135]. The Court of Appeal noted the problems which the appellants would face in any attempt to withdraw their pleas of guilty after so long a delay, but nonetheless allowed time for the appellants to seek to do so.

When the matter was called on before the Court of Appeal on 14 July 2008, their lawyer on record of the Court file, Mr Hillary Toa, advised that he was no longer acting for the appellants. He informed the Court the appellants were instructing another lawyer, Mr Ronald Kay Warsal. Mr Toa invited the Court of Appeal to further adjourn the appellants’ applications.

It seems that nothing has been done since April 2008 by the appellants to seek leave to withdraw their pleas of guilty and to challenge their convictions. Certainly no papers have been filed with the Court.

Counsel for the Public Prosecutor informed us that the Public Prosecutor continues to be concerned about the delay, and is anxious to have the matter concluded by the Court of Appeal. However counsel left it to the Court to decide whether a further adjournment should be granted. As the appellants were not before the Court, and as Mr Toa was no longer acting, the Court reluctantly agreed to a further adjournment of the applications to the next sittings of the Court of Appeal, presently listed to commence on 24 November 2008.

Whilst the Court has again allowed the applications to be adjourned, we wish to make it clear that unless the appellants take all necessary steps before the next sittings to withdraw their pleas of guilty and challenged their convictions, and further, have whatever applications they file ready to be heard by the Court of Appeal on the first day of the next session, the Court will proceed to hear and determine the applications already on the Court of Appeal file.

The appellants must understand that there is no likelihood that any further adjournment of those applications will be granted.

So that the appellants are under no misunderstanding about the situation, we direct that a copy of this Memorandum, with the judgment of the Court of Appeal dated 30 April 2008 attached, be served on each of the appellants, and a further copy be forwarded to Mr Ronald Kay Warsal. On 15 July 2008, Mr Warsal filed a Notice at Court that he had begun to act for the appellants in this proceeding. Hopefully he will be still acting for them when the matter is re-listed at the November sittings. However the appellants must understand that if for any reason Mr Warsal is no longer acting for them at that time, no further adjournment will be granted on the ground that they are seeking to change their lawyer. If they are unrepresented at the time of the next sittings, they will have to present their applications as best they can without a lawyer as the Court will proceed to hear them.

DATED at Port-Vila this 25th day of July 2008

BY THE COURT

Hon. John von DOUSSA J
Hon. Oliver SAKSAK J
Hon. Christopher Tuohy J
Hon. Mark O’Regan J