IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CRIMINAL JURISDICTION
CRIMINAL CASE No. 17 OF 1997
PER">PUBLIC PROSECUTOR
-v-
SHIBA YAMANGA
LISHI DAVID
Coram: Acting Justice Lunabek J.
Counsel: Mrs. Heather Lini Lini LEO, Public Prosecutor, for the Prosecution.
Mr. Hilary TOA for the Defendants.
ORAL JUDGMENT
Siba Yamanga and David Lishi are both charged under s. 105 (b) of the Penal Code Act
[CAP. 135] and s. 29 (1) of the Firearms Act [CAP. 198]. The chargeege as follows:
That on 12th October 1996 at the VMF Camp, both Defendants kidnap Lieutenant
James Aru; and both carry firearms SLR in the public place
without lawful authorization.
In order to prove the charge of kidnapping as charged in Count 1, the prosecution must
prove the following elements:
1. The taking or carrying away of Lieutenant James Aru by both Siba Yamanga and David
Lishi from his house to the Officer’s
Mess;
2. By force or any fraudulent means;
3. Without the consent of James Aru; and
4. Without lawful excuse.
Equally, in order to prove the charge of carrying firearms in a public place, the
prosecution must prove the following elements:
1. both defendants carry firearms;
2. Without lawful authority or reasonable cause;
3. In a public place;
4. Firearms;
5. With ammunitions for use in the firearms.
The particulars alleged in the two (2) charges are that in respect to the offence of
kidnapping as charged in Count 1, sometimes
on 12th October 1996, both
defendants, members of the Vanuatu Mobile Force (VMF) took lieutenant James Aru from his
house to the
Officer’s Mess at the VMF Camp without his consent.
As to the charge of carrying firearms in a public place as charged in Count 2, it is
particularised that on 12th October 1996 at the VMF Camp, both Defendants carry
firearms self loading (SLR) in a public place without lawful authorisation
from the Police
Commissioner.
The thrust of the prosecution case is that on the 12th October 1996, the
Complainant James Aru was taken or carried away from his house to the Officer’s Mess
by the two
Defendants Shiba Yamanga and Lishi David. The two Defendants were the two
officers of the VMF whom, the two prosecution witnesses,
complainant James Aru and Mrs.
Annette Aru, claim, come to their house on that morning at 5.30 am to take his with arm to
the Officer’s Mess at the VMF Camp. The complainant and his wife had the opportunity
to identify both of them.
The Defence’s case on the contrary, is that the 2 Defendants, Shiba Yamanga and
David Lishi, … they were involved in
the kidnapping of the complainant James Aru,
although on 12th October they were at the VMF Camp and involved in the
operation of taking other to the Officer’s Mess at the VMF Camp.
This is a criminal trial and it is the duty of the prosecution to prove each elements
of the offences as charged.
As the Judge of law and the Judge of facts, I have had heard the evidence from both the
prosecution and the Defence, I apply
the law to the facts as found by the Court, to the
criminal standard of beyond reasonable doubt, in respect to each element
of both offences
as charged in Counts 1 and 2, I come to the following verdict:
I find the Defendants
- Shiba Yamanga and David Lishi not guilty of the offence of kidnapping Lieutenant James
, as charged in Count 1 under s. 105
(b) of the Penal Code Code Act [CAP. 135] and I
discharged both Defendants accordingly.
- Offence of carrying Firearms in a public place:
I find the two Defendants, Shiba Yamanga and David Lishi, not guilty of the offence of
carrying firearms in a public place
as charged in Count 2 under Section 29 (1) of the
Firearms Act [CAP. 198] and I discharged both Defendants accordingly.
Full written reasons with supporting authorities will be produced as soon as possible.
Dated at Port Vila, this 17th day of September, 1999.
BY THE COURT
Vincent LUNABEK J.
Acting Chief Justice.
