IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
Criminal Jurisdiction
CRIMINAL CASE No. 18 OF 1997
PUBLIC PRIC PROSECUTOR
-v-
Michel Kalter
Marcel Tokone
Siba Yamanga
James Tari Nako
Coram: Acting Chief Justice Vincunabek J
Counsel: Public Prosecutor, Mrs. Heather Leo for
the Prosecution
Public Solicitor, Mr. Stephen Joel for the Defendants
Date of Hearing: 21, 22 & 23 June, 2000
Date of Judgment: 17 July, 2000
JUDGMENT
The defendants, Michel Kalter, Marcel Tokone,
Siba Yamanga, James Tari Nako, were charged under section 105(b) of the
Penal Code Act (CAP 135).
It was alleged against each and all of the
defendants that:
- On 12 October 1996, at the VMF Camp, Port-Vila, Efate, all four (4)
defendants did kidnap the complainant, Arnold Vira in
that they took the
complainant from his house at the VMF Camp, to the officer’s mess,
also at the VMF Camp, without
his consent.
Each and all defendants pleaded not guilty to
the offence as charged.
All defendants were notified about their rights
under section 81 of the Criminal Procedure Code Act (CAP 136). The trial
proceeded. At the end of the prosecution case, a submission of No Case to
answer was made by the
Public Solicitor. The Court found that there is no
case to answer by the defendants: Siba Yamanga and James Tari Nako and
discharge both defendants of the offence as charged accordingly.
However, Defendants Michel Kalter and Marcel
Tokone have a case to answer and they are both required to call for their
defence
and were notified by the Court about their right under section 88 of
the Criminal Procedure Code Act (CAP 136).
This is a criminal trial. It is the duty of
the Prosecution to prove each and all essential element of the offence as
charged beyond reasonable doubt.
The expression “beyond reasonable doubt”
does not mean proof “beyond absolute doubt” nor proof “beyond the
shadow of any
doubt”.
What is
required from the prosecution is to establish material facts constituting an
essential element of the offence. That
similar sort of approach is adopted
in respect of each and all essential elements of the offence as charged.
Then once, the material facts of an essential
element of the offence were established, the Judge must be satisfied that
that essential element is proved by the prosecution beyond reasonable doubt.
That process/approach is considered and followed
in respect of each and all
essential elements of the offence as charged by assessing all material
evidence together at
the end of the whole case.
For the defendants Michel Kalter and Marcel
Tokone to be found guilty of the offence of kidnapping, the complainant,
Arnold
Vira, the prosecution must prove the following essential elements of
that offence, beyond a reasonable doubt:
1. That the defendants Michel Kalter and Marcel Tokone
did take/carry away the complainant, Arnold Vira, from one place to another
on 12 October 1996.
2. That the defendants Michel Kalter and Marcel Tokone
did take/carry away the complainant, by force or any fraudulent means.
3.
That the defendants Michel Kalter and Marcel Tokone did take/carry away the
complainant, without his consent.
4. That the defendants
Michel Kalter and Marcel Tokone did take/carry away the complainant, without
lawful excuse.
I have had opportunity to listen and observe the
demeanour of all witnesses in this criminal trial and consider their
respective
evidence.
The factual disputes between the prosecution and
the defence focus mainly on elements 2, 3 and 4 of the offence of
kidnapping.
I will now consider each element of the offence
of kidnapping in turn.
- First element of the offence of kidnapping: taking/carrying away of
the complainant from one place to another on 12 October
1996.
The defence filed a statement of admitted/denied
facts on 21 June 2000. The defence admitted that the defendants Michel
Kalter and Marcel Tokone went to Arnold Vira’s residence at about 6.00am
on the morning of 12 October 1996, knocked. The complainant
came out and was
told he was required at the officer’s mess. He then accompanied both of
them to the officer’s mess. The
2 defendants were armed.
This was confirmed by the evidence of both
defendants Michel Kalter and Marcel Tokone. The prosecution evidence is that
the complainant was not aware of him being required at the officer’s mess.
The evidence establishes that the complainant
Arnold Vira was taken from his house at about 6.00am o’clock on 12 October
1996 to the officer’s mess at the VMF Camp.
This first element of the offence of kidnapping
has been proved on beyond reasonable doubt.
·
/ sppan sang="ang="EN-GB" style="font-size:12.0pt;mso-bidi-font-size:
10.0pt;mso-ansi-language:EN-GB">The seconment e off both defes,
MiKalter and Marcel Tokone, took the complaomplainantinant by f by force
orce
or fror fraudulent means.
The prosecution evidence is that the complainant
is not aware that he is going to be taken by the 2 defendants to the
officer’s
mess on 12 October 1996.
As a Major working very closely to the VMF
Commander at that time, there was no order issued by the VMF Commander for
the
VMF Members to take arms on 12 October 1996. Both defendants took the
complainant with guns.
The complainant/witness expressed his feelings
and explained that because there was no order issued by the VMF Commander to
take arms, then, when he saw the 2 defendants with arms, he was frightened.
He said there was fear deepening in him. He
further gave evidence that the 2
defendants pointed their guns to his door where he stood. It is also
admitted by the defendant
Marcel Tokone that he was at the entrance of the
complainant’s yard on the position of covering up which is a trained
position
within the army. The complainant said he saw their appearances,
they wore hats, uniforms and they carried S.L.R. guns. He was
asked to go to
the officer’s mess. He asked them what they are doing? Tokone insisted he
was required to go to the officer’s
mess.
The defence evidence acknowledged that there is
no need to guard the complainant with guns to the officer’s mess. But they
are ordered to take the complainant with guns. The complainant walked in the
middle and the two (2) defendants walked each
on his side.
There is evidence that the complainant was
afraid because he saw the 2 defendants with S.L.R. guns. As he said the VMF
Commander
did not give any order for the VMF Officers to carry arms on 12
October 1996.
He then followed the 2 defendants as he was
requested to do so.
I am satisfied that the guns were used to
frighten, threaten and intimidate the complainant Arnold Vira which amounted
to
a situation in which the complainant was forced to go with the two
defendants from his house to the officer’s mess.
There is no evidence from the prosecution in
respect of the alternative element of the second element of the offence of
kidnapping: that of fraudulent means. This is not necessary.
I am satisfied that the element of force has
been proved on the criminal standard required.
- As to the third element of the offence: That of taking the
complainant to the officer’s mess, without his consent.
The prosecution evidence is that he was taken
from 6.00am o’clock to 3.00pm in the afternoon. He was taken by 2 armed
defendants.
He was not aware. He never expected to be taken in the early
morning of that day as he said he did not even wash his face.
The complainant should have stayed with his wife
and children at home. As he said in his evidence, he did not want his wife
and children to see that he was taken by the 2 defendants with guns. He did
not want his family to be affected.
In any event, proof of the third element
depended on the proof of the second element of the offence of kidnapping.
Since the second element of the offence was
proved, and the complainant witness denied that he consented to go with the
2 defendants, I am satisfied that the complainant was taken against his
will/consent, and, thus, the third element of the offence
of kidnapping is
proved beyond reasonable doubt.
- As to the fourth element of the offence: that of taking/carrying
away of the complainant, Arnold Vira, from his house to
the officer’s
mess without lawful excuse.
There is evidence from the prosecution that the
VMF Commander tried his best to solve the issues of allowances claimed by
the VMF Members of Stand Down Group. On one of these meetings held by the
VMF Commander with the VMF Members of S.D.G., they
walked away from the
meeting. It is not disputed that the VMF chain of Command did no longer
operate although there is
no change in respect of the official status of the
VMF Commanding Officers.
The prosecution evidence is that the VMF
Commander did not issue an order for the VMF Officers to carry arms on 12
October
1996.
It is admitted by the defence that Sergeant
Astrophile Mwgele gave order for the 2 defendants to take Major Arnold Vira
to the Officer’s Mess for the signing of agreement. It is not disputed,
both defendants knew that Astrophile Mwgele was a Sergeant.
An army rank
which is lower than the rank of the VMF Commander. Further, complainant
Arnold Vira was a Major, a rank which
is much higher than a Sergeant .
The critical point for the defence evidence is
that as privates, both defendants must carry out orders given to them by any
Superior ranking officer. If that is a rational explanation of the way the 2
defendants understand the carrying out of their
duties by executing orders
given to them by any of their superior officer, they could be believed. But
the evidence show
that the VMF members who are members of Stand Down Group
wore uniforms to the workplace but refuse to carry out orders given
by the
VMF Commanding Officers. Further, as the defence witness Michel Kalter said,
Astrophile Mwgele was a member of the
VMF S.D.G. and at that time, he was
carrying out orders to take arms and took Major Arnold Vira to the
officer’s Mess because
it was an order issued by a member of S.D.G. and he
was ready for that only. He said he will follow any order but depending
on
the situations.
Witness Michel Kalter was asked:
Q.
So yu follem any order nomo?
A.
Yes but hemi depend long situation…
Q.
Long time ia, blong carry out order blong normal duties we I kam from
Commanding Officer, yufala ino mekem i true?
A.
Mi no save ansa.
Q.
Yufala I werem unifom, go long wok but yufala I no wok. Hemi ol nomol wok we
VMF Commanding Officer oli givim?
A.
Yes.
Q.
To refuse is to go against the orders given by the VMF Commanding Officers?
A.
Mi no gat stret ansa long question ia.
The defence witness Michel Kalter hesitates to
answer simple questions. He deliberately escapes answering the critical
question
put to him. He is not a creditworthy witness.
Witness Tokone gave contradicted testimony. An
example is that when he and Michel Kalter took the complainant in the
officer's
mess, he said:
“Full up officers finis oli stap long officer’s
mess. First officer we mi look inside hemi Superintendent Pakoa Samuel.”
This is not true and he could not be believed on
this point because it was admitted by the defence in the statement of facts
of 21 June 2000 that Arnold Vira was the first officer to arrive at the
officer’s mess. This is also confirmed by the evidence
of the complainant
himself in that: he was the first officer to be taken into the officer’s
mess.
The defence evidence is that first Astrophile
Mwgele gave order for the 2 defendants to take arms and, then, to get Major
Arnold Vira to the Officer’s Mess. The defendants accepted that there was
no Foreign Force in Vanuatu at that time. The evidence
further show that the
defendants returned the guns after the signing of the agreement on 12
October 1996. The only rational
explanation is that the defendants took
Major Arnold Vira from his home to the officer’s mess with guns for the
signing
of agreement but not to protect themselves against a Foreign Force
which is a lie. The defence justification that the 2 defendants
got armed
because of the Foreign Force cannot be accepted and as such, is rejected.
Further, as it transpires from the evidence of
the defence, there is no rational explanation of their understanding of the
execution of their duties to carry out orders from one of the VMF Superior
Officers. In effect, the evidence shows that the
defendants have the ability
to select the sort of orders to execute and from which VMF officers. That
was what they did
by executing only orders given to them by Sergeant
Astrophile Nwgele as a member of the VMF Stand Down Group.
Further, by deliberately avoiding to answer
critical questions put by the prosecution, and by making blatant
contradictory
testimonies, constitute an indication that the defendants knew
that a lower ranking officer cannot give them order to take away
a higher
and superior ranking officer from one place to another place. The defendants
knew that Astrophile Nwgele as a
Sergeant cannot order them to take Major
Arnold Vira from his home to the officer’s mess. This constitutes a proper
basis
to infer that the defendants have the ability to appreciate whether it
was proper for them to carry out orders they received
from Astrophile Nwgele
on 12 October 1996.
As the defence evidence shows they carried out
that order because it was given by a MVF Officer who is a member of Stand
Down Group although they knew that Astrophile Nwgele, a Sergeant, cannot
order them to take Major Arnold Vira from his house
to the officer’s mess
for the purpose of signing the agreement with the Government. There is no
good excuse for so acting.
I am satisfied that there is no lawful excuse
for the two (2) Defendants to take the complainant from his house to the
officer’s
mess on 12 October, 1996 with guns. That element is proved on
beyond reasonable doubt.
VERDICT
I find the defendants: Michel Kalter and Marcel
Tokone guilty of the offence of kidnapping Major Arnold Vira, as charged
under s.105(b) of the Penal Code Act CAP 135 and I convict each and both of
them accordingly.
DATED
AT PORT-VILA, this 17th DAY of JULY, 2000
BY THE COURT
Vincent
LUNABEK J
Acting Chief Justice
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