Home | Databases | WorldLII | Search | Feedback Vanuatu Law Reports

Naling v Public Prosecutor [1983] VULawRp 1; [1980-1994] Van LR 61 (24 March 1983)

[1980-1994] Van LR 61

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appeal Case No. 5 of 1982

BETWEEN:

NALING
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Mr Justice L Cazendres
Mr Justice J Jones

Mr P Coombe, Counsel for Appellant
Miss D Toulet, Interpreter
Miss J R Walsh, Chief Register

JUDGMENT

[CRIMINAL LAW - CONSTITUTIONAL LAW - STATUTES - Interpretation of 5(2)(a) of Constitution; - interpretation of "serious offence"]

Yamtou Naling was convicted in the Supreme Court of the offence of 'receiving stolen property knowing it to have been obtained dishonestly', an offence punishable with ten years imprisonment under section 131 of the Penal Code.

He pleaded guilty, and was sentenced to four months imprisonment. He has appealed against both conviction and sentence.

We are surprised to find that under the new legislation consequent upon Independence, there is no prohibition against appealing against conviction after a plea of guilty. The relevant section is section 200(2) of the Criminal Procedure Code. This provides merely:

'A person convicted on a trial held by the Supreme Court may appeal to the Court of Appeal.'

We cannot read into the use of the term 'trial' any extension of that term to mean 'trial in which evidence is heard.' A criminal trial begins with the reading of the charge to the accused, and ends with the sentence or acquittal, irrespective of what proceedings in accordance with the Code take place in between.

Coombe's first ground is based on Article 5(2)(a) of the Constitution.

This Article reads:

'...everyone charged with an offence shall have a fair hearing within a reasonable time by an independent and impartial court, and (shall) be afforded a lawyer if it is a serious offence'

We have underlined that part of the section upon which Mr Coombe appeals.

Although neither Counsel has adverted to our jurisdiction to hear a constitutional point, we have considered this point, and, we think we should clarify our position in view of Articles 6(1) and 51 of the Constitution. These Articles read:

Article 6(1)

'Anyone who thinks that any of the rights guaranteed to him by the Constitution has been, is being, or is likely to be infringed, may, independent of any other possible legal remedy, apply to the Supreme Court to enforce that right.'

Article 51(1)

'Anyone who thinks that a provision of the Constitution has been infringed in relation to him may, without prejudice to any other legal remedy open to him, apply to the Supreme Court for redress.'

There are two other subsections to Article 51. Subsection (2) deals with the powers of the Supreme Court when hearing such applications, and is therefore not relevant to the present point. Subsection (3) provides that when a question of 'fundamental law' concerning the interpretation of the Constitution arises in a 'subordinate court', the matter must be referred to the Supreme Court for decision. Now the Supreme Court, sitting on such matters consists of the Chief Justice and two other Judges (Article 48 of the Constitution), or Article 70 which provides for application to the Supreme Court from regulations made by the Council of Ministers. In view of this discrepancy in seniority and possible discrepancy in numbers, it might be thought that the Appeal Court is a subordinate court to the Supreme Court when so constituted.

However, if this were so we are convinced that there would be some statement to this effect in one of the relevant enactments.

There is no such statement.

It is true that section 219 of the Criminal Procedure Code provides that in applications under Articles 16(4), 37(3) and 51(3) the decision of the Supreme Court shall be final. (Articles 16(4) and 37(3) provide for applications by the President in respect of Bills and Regulations).

However, we note that it does not so provide in respect of Article 6(1), or Article 51(1), or Article 70 which provides for applications to the Supreme Court from Regulations made by the Council of Ministers. We do not think such a provision can be implied. On the contrary; if the legislature had intended such a provision to apply to Articles 6(1), 51(1) and 70, it could and we think would have included those Articles in this subsection. It would have needed to single out only the three other relevant Articles for special mention. The subsection would have read merely that in all applications, the Supreme Court's decision is final. That it does not do so, points to a clear intention that in respect of the two Articles not mentioned in the subsection the normal channels of Appeal shall remain open, and that there is a right of appeal from the Supreme Court to this Court from decisions of the Supreme Court on applications brought by virtue of these two Articles under the provisions contained in Article 48 Regulations 41(l) of the Joint Regulations for appeals to this Court from decisions of the Supreme Court in the exercise of its original, Jurisdiction. This Court cannot therefore be a 'subordinate court' to the Supreme Court so constituted.

Both Articles 6(1) and 51(1) contain statements that such applications are not a bar to any other legal remedy. Article 6(1) states that such application may be made "independently of any other possible legal remedy". Article 51(i) states that they are "without prejudice to any other legal remedy".

In both Articles (as contrasted with Article 51(3)) the word 'may' and not 'shall' is used, that is to say that the person aggrieved is permitted to make such application to the Supreme Court, but is not debarred thereby from exercising his other options. One of such other options is, we are sure, an appeal to this court. We will now proceed to hear the matter.

Mr Coombe submits that the Appellant is entitled to the benefit of that part of Article 5(2) (a) which we underlined above, that is to say that he was entitled to be afforded a lawyer, since the offence with which he was charged was a serious one. He further submits that the Appellant was not afforded a lawyer, and was thereby deprived of a fundamental human right guaranteed by the Constitution, and in such case is entitled to have his conviction quashed.

This submission raises four points:-

(1) at what stage of a trial must it be applied,
(2) what is meant by an afford,
(3) what is meant by offence,
(4) what is meant by serious.

(1) As Mr Coombe has submitted, advice on pleas is one of the crucial pieces of advice a lawyer can give his client. Furthermore the Article reads 'everyone charged' not 'everyone who has pleaded to a charge'.

The wording is unambiguous. It makes it clear that the time an accused is to be told of and afforded this fundamental right is either before the charge is read to him or immediately afterwards, before plea is taken.

(2) We would have no problem in interpreting the word 'afford' were it not that the French text uses the word 'droit' which means a right or entitlement. There is no provision in our laws which makes either the English or the French text prevalent. Section 16A of the Interpretation Act provides that in the case of a contradiction between the two texts the 'original' if it can be determined, shall prevail. Unfortunately neither of these texts can be determined or is declared to be the original. Each therefore has equal weight, and we have to consider both.

At first it appeared to us that the French text demanded somewhat less of the court than the English. The French text reads, where relevant to this point, as follows:-

"Toute personne accusé d'un delit..... a droit a l'assistance d'un avocat en cas d'accusation grave."

If one considers the first term in isolation one may infer that it merely entitles person to be defended by a lawyer, and this would be in accord with the normal declaration of human rights in democratic countries.

But if it is read together with the phrase 'en cas d'accusation grave' (in the case of a serious offence) the interpretation becomes narrower. It is then not possible to say that it is merely permissive for that, in the case of persons charged with less serious offences would by necessary implication exclude such person from the right to a lawyer. But this would be contrary to the concept of human rights in democratic countries. We cannot think that such deprivation was in the intention of the legislature. We must, therefore give this provision a stricter interpretation. It must, we conclude be read to provide something more than a mere permission to legal representation. The only thing more than mere permission which occurs to us is a provision that such an accused person must be legally represented. And if he must, then it is clearly the duty of the court to provide him with legal representation.

This interpretation of the French provisions accords with the English text. The word afford may be variously interpreted as meaning 'give', 'make available', 'provide', 'supply' and so forth.

We therefore conclude that Article 5(2)(a) does entitle such an accused person to have legal representation provided for him. This duty, of course, falls upon the court.

(3) The meaning of the word 'offence' seems plain enough. The usual meaning can be inferred from such phrases as 'an offence punishable with (so many) years imprisonment' and 'found guilty of the offence charged'. However, it has been suggested to us that in the context of Article 5(2)(a) it has a wider connotation. It has been suggested that it means not merely the offence as defined in the enactment which makes it a punishable illegality, but should be read as including all the circumstances and degree of culpability of the act or acts of which a person stands accused.

The French text employs terms which have a strict legal meaning. However they cannot be given a strict meaning in this context, because there is a contradiction between the use of the words 'accuse' and 'delit' and 'accusation'. 'Delit' means strictly a petty offence, while the term 'accusation' means strictly 'an indictable offence'. We can therefore deduct little from the use of these terms in the constitution except to infer that they are intended to express generally an infraction of the penal laws.

Similar considerations apply to the English text. Since the circumstances and degree of culpability attaching to the acts done cannot be precisely ascertained until all the evidence has been heard, it seems to us that to extend the meaning of the term 'offence' beyond its normal legal meaning would in any case be impracticable.

We have considered whether it might not be extended to include the particulars of the charge, but we can see little advantage in doing so, and no good reason in legal interpretation for so extending it. If the legislature had meant 'charge' it surely would have said so.

We conclude, therefore that both texts are in accord in giving the terms used the meaning: an act or acts which in the circumstances prescribed by any penal enactment are liable to punishment at law.

(4) When is an offence a serious one? We have already gone a long way to answering this question. However, it has again been suggested to us that this will depend on all the circumstances of its commission. This view is given support by the case of John Kalmet v Public Prosecutor. [Appeal Case (Supreme Court) No 1 of 1982], in which the learned Chief Justice said, "To me the word serious is a question of fact having regard to the whole matter in each case."

With the greatest respect we find this hard to understand, for the reason we have already mentioned, namely that 'the whole matter' cannot be ascertained until long after the decision as to whether the offence charged is serious has to be made. It is true that from the position of the accused, the seriousness of his offence will be measured by the sentence which the court will impose if he is found guilty, and it is true that the sentence which the court will impose if it finds the accused guilty, will depend on all the circumstances, but the practical difficulty of applying such a criterion suggests to us that this cannot be what the legislature intended. We think that some guidance to the intention of the legislature is given by the clear statement in the Legal Aid legislation, that it is to apply to impecunious persons charged with offences punishable with imprisonment for six months or more. This criterion is the first that springs to mind when viewing penal legislation in isolation, namely that the opinion of the legislature as to the seriousness of an offence is shown by the maximum sentence it provides for the crime prescribed. We conclude that this is the criterion to be applied to Article 5(2)(a).

Given this criterion, the crucial question then is, when does an offence cease to be petty or ordinary and become serious. We think that helpful as it might be, we are not called upon to decide this point except as it relates to the present case, which in our view is not a borderline case. Both Counsel have suggested to us that a serious offence might be one carrying any term of imprisonment. We are not inclined to agree with this. The provisions for legal aid strongly suggest that the legislature does not hold that view either (and there is no other provision at present for any other legal aid to accused persons.) However, we are of opinion that by any standards the offence of 'receiving' carrying as it does a maximum sentence of ten years imprisonment, must be considered a serious offence.

Applying the interpretation we have given to Article 5(2)(a) we find that the Appellant was a person accused of an offence, that of 'receiving', which is serious, because it carries a heavy maximum penalty in the penal Act, and that in that case he was entitled to be afforded, that is to say provided with a legal representative at his trial before his plea was taken.

Mr Coombe has submitted that if we decide, as we have, that the Appellant was denied a fundamental human right at trial, then the verdict should be quashed, and the Appellant acquitted. We agree that the verdict must be quashed, but we have considered ordering a retrial. However we will not so order in the present case because we understand that there are circumstances which would make a retrial in the present case impossible to effect.

We quash both the conviction and the sentence, and substitute a verdict of acquittal.

Appeal allowed.

Note

After delivering this Judgment we were advised by Mr. Cote, the Public Prosecutor, that the legal aid legislation to which we referred has just been repealed. This does not affect the use of which we put that legislation which does not depend upon its details or present validity, but only upon the fact that in passing that legislation originally the criterion applied by the legislature was the maximum penalty prescribed by penal laws. Nor did we consider the choice of six months imprisonment as the lower level of the application of the legal aid provisions as a guide to the interpretation of the term "serious offence" but only as we have said above that the prescribed maximum sentence was used as a criterion.

Dated at Vila this 24th day of March, 1983.

MR JUSTICE L. CAZENDRES,
COURT OF APPEAL JUDGE

MR JUSTICE J. JONES.
COURT OF APPEAL JUDGE