IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
Criminal Case No.30 of 2002
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PUBLIC PROSECUTOR
–v-
WILLIE KALORIS
MOISE KALORIS
Prosecution: M. Forsyth
Defence: I. Kalsakau
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RULI PRELIMINARY POINT
The two defendants appear
before the Supreme Court on the following charges:
1. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Mpise Kaloris – Int– Intentional Assault c/s 107 (b) Penal Code
2. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
Willie Ksloris – Demanding Money mena/s 13al Code
3. &nbbsp;& &nsp; &nsp; &nnbp;& &nnbsp;
Wian>Willie Kaloris – Using threag wors 121 Penal Code
4. &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;&
Wian>Willie Kaloris – Threats to Kill 15 Peode
5. &nnsp;&&nsp;;&nspp;&nssp;&nsp;   Willie Kalorialoris – Obstructing Police c/s 6 Distue of ublic Peat.
Defence counsel has taken a
number of preliminary points. They are:-
1. &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
Thedefendefendants arejointly charged with any offence and
therefore should be tried separately.
n lang="EN-GB" style="font-size: 12.0pt">2. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;&nssp;
Cpan>Counts 1, 3 and 5 are within the Magistrate’st jurtion d notefore the Supreme Court.
3. nbsp; p; &nbp; &nbssp; &nbssp;
In any evny event Counts 1, 2 and 3 allege different offences
feren fromts 4 and fore shoultriedratel
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<
pan lang="EN-GB" style="font-size: 12.0pt">4. ;&nspp;&nssp; p; &nbp; &nbp; Counts and 3 shou should remain in the Magistr Courn if
s tri the me CoThe same argument is applied toed to Coun Counts 4 ts
4
and and 5 res5 respectipectively.
The prtion allege an
election poster of the second defendant was put up on the notice boardboard
outside the complainant’s
restaurant. It was the restaurants notice board.
The complainant removed it. The prosecution say the defendants and others
went to the restaurant the next morning. The first defendant assaulted the
complainant and made him eat a poster (Count
1). Then the second defendant
was aggressive and threatening in the restaurant and told the complainant to
give him VT20,000
(Counts 2 and 3). The next day when the police came to
arrest the defendant he threatened to kill one of the police officers
(Count 4) and used the same threat from the day before (“When I am a
Minister … I will get youed”) towards these officers (Count 5).
That is the prosecution case o allegations. It is supported on the face of the witness ness statements.
Iider each of defence
counsel’s points in turn.
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Point 1
Section 73 (b) o(b) of the Criminal Procedure Code states:-
“The following persons may
be joined in 1 chargcharge or information and may be tried together –
…
(d) p;&nbbsp;&nsp; psp; persons accused of d of different offences committed in the course of the same transaction;”
That is osition here.
There is proximity of time and place. The complainant is the same. The The
offences charged are
similar. There is a sequence of events which flow one
from the other.
Point 2
It It is correct that Counts 2 and 4 cannot be tried by a Magistrate. There has
been a proper preliminary enquiry and
committal by the magistrate. The
defence do not challenge this.
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Counts 1, 3 and 5 can be tried
by a senior magistrate under Section 4 of the Courts Act. That does not mean
they have
to be tried there. It cannot be suggested the Supreme Court cannot
try a matter which a magistrate can.
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Section 143 of the Criminal
Procedure Code states thi>Every offence triable onle only in the Supreme
Court shall be the subject of a preliminary enquiry by a senior magistrate
in accordance with this part.”
Offences triable only in the
Supreurt need a preliminary enquiry. It would be absurd if offenoffences
carrying up to 5
years could not be tried in the Supreme Court if they were
founded on the same facts or were part of a series of offences of
a similar
character as one which could only be tried in the Supreme Court.
The Supreme Court does have
poo consider such joinder and, if severance should occur, rem, remit any
Magistrate’s Court
matters there. This is not the case here. Any Court may
order separate trials of charges if the circumstances set out in Section
73
(3) of the Criminal Procedure Code apply. I do not consider that applies in
this case.
Poi and 4
There are two distincttinct parts to this case. The allegations concerning the
restaurant and its proprietor, the complainant.
The second part takes places
next day, in a different place and involves police officers.
Section 72 (1) of the Criminal
Proc Code states:-
“More than 1 offence may be
put tor in the same charge or infr information if the offences charged are
founded on the same
facts or form, or are a part of a series of offences of
the same or similar character.”
<
Section 72 (3) of riminal
Procedure Code states:-
“Where, before trr at
any stage of a trial, the Court is of opinion thon that a person accused may be
embarrassed in his
defence by reason of being charged with more than 1
offence in the same charge or information, or that for any other reason
it
is desirable to direct that the person should be tried separately for any 1
or more offences put in a charge or information,
the court may order a
separate trial of any count or counts of such charge or information.”
I find all five offences are
part of a series of alleged offences of the same or a similar character.
They involve violence
or threats of violence to police officers who seek to
arrest the second defendant in respect of violent incidents at the
restaurant.
Further, the particular threat, “when I am Minister etc…” is allegedly made both toth to the restaurant
owner and to one of the police officers.
For these reasons I reject the
submissions of the defence.
Dated at Port Vila, this 7th
day of June 2002.
R. J. COVENTRY
Judge.
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