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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
Criminal Case No. 12 of 2004
PUBLIC PROSECUTOR
-v-
GUY BENARD
JOHN SIMBOLO
JOHN LESS NAPUATI
STEVEN KALSAKAU
CHRISTOPHE EMELEE
Coram: Mr. Justice H. BULU
Counsels: Mr. Lent Tevi for Public Prosecutor
Mr. Sugden for Christophe Emelee and John Simbolo
Mr. Nigel Morrison for Napuati and Benard
Mr. Steven Kalsakau in person - no appearance
DECISION ON APPLICATION UNDER ARTICLE 5 (2) OF THE CONSTITUTION
This is the decision in the application by Christophe Emelee and John Simbolo heard on 9th May 2005. The application was filed on 3rd November 2004.
The applicants apply for an order that the proceedings against them be struck out for want of prosecution. Mr. Morrison who appears for the Meserrs Napuati and Benard supports the application on behalf of his clients.
The defendant, Mr. Steven Kalsakau, was not in Court. Prosecution admitted that Mr. Kalsakau had not been served personally with the summons for hearing on 9th May 2005. It is believed that Mr. Kalsakau is currently outside the country.
It is not contested that if the application is granted, it will apply to all the defendants as they are all charged of conspiracy to defeat justice contrary to section 79 of the Penal Code Act [CAP. 135] and the charges arise out of the same incident.
The grounds advanced for the application is as follows:-
“(i) Pursuant to Article 5 (2) of the Constitution of Vanuatu the Defendants are entitled to a fair hearing within a reasonable time and they cannot now have a hearing within a reasonable time in that:-
(a) The events alleged to give rise to this charge are alleged to have occurred at the end of October and beginning of November, 2003(18 months) ago.
(b) The Public Prosecutor produced witness statements in early December 2003 but the Preliminary Inquiry was not held until late February.
(c) The result of the Preliminary Inquiry was handed down on 6 April, 2004 committing the Defendants for trial.
(d) The Defendants have at all times been ready to proceed with the hearing but it has still not occurred.
(e) A motion for Judicial Review of the decision of the Preliminary Inquiry was brought by two other Defendants but this should not have prevented the case against the Applicants being proceeded with in accordance with their Constitutional rights.
(f) The Defendants Constitutional right to a hearing within a reasonable time embodies their right to live their lives free from the fear and anxiety of having pending criminal charges hanging over their heads and free from the harm to their reputations that an unresolved criminal charge causes.
(g) The said Constitutional right also protects the Defendants from the prejudice to their defence that is inevitably caused by delay as memories become dimmer and witnesses become unavailable.”
ISSUE
The crucial issue for determination in this application is whether the delay in having a trial up to this point in time since the laying of charges on 15 November 2003, and on 3rd and 5th December 2003, some 17 to 18 months ago, amount to a violation of the defendants fundamental rights under article 5 (2) of the Constitution that requires “a fair hearing, within a reasonable time.”
I set out below the chronology of events leading up to this application.
On 15 November 2003 Christophe Emelee was charged with the offence of uttering forged documents contrary to section 141 of the Penal Code Act [CAP. 135].
On 3 December 2003 Mr. Emelee was further charged with the Offence of conspiracy to defeat justice contrary to section 79 of Penal Code Act [CAP. 135].
On 5 December 2003 Guy Benard, John Simbolo, John Less Napuati and Steven Kalsakau were charged with the offence of conspiracy to defeat justice contrary to section 79 of the Penal Code Act [CAP. 135].
Preliminary Enquiry was conducted in the Magistrate’s Court from 11 December 2003 to 6th April, 2004. The Magistrate Court found that a prima facie case is disclosed and committed the defendants to the Supreme Court for hearing on 4 May 2004.
On 3rd May 2004 the Claim for Judicial Review was registered with the Court as Civil Case No.91 of 2004. Mr. Napuati and Mr. Benard sought an order of the Court to quash the decision of the Magistrate Court dated 6th April 2004 committing the Claimants to stand trial in the Supreme Court.
On 4th May 2004 the criminal matter was adjourned to 12 July 2004.
On 12 July 2004 the matter was further adjourned to 26 July 2004.
On 12 May 2004 Amended Claim for Judicial Review in Civil Case No. 91 of 2004 was filed with the Court.
On 26 July 2004 criminal matter was adjourned pending the decision in the Civil Case No. 91 of 2004.
On 15 September 2004 conference in the civil matter held. Parties were not ready and matter was stood over to 13 December 2004.
On 18th October 2004, Mr. Morrison wrote to the Court advising the Court that due to the delay in finalizing the civil matter all parties to the proceedings have agreed to have the Civil Case 91 of 2004 be discontinued and struck out with no order as to costs.
On 4th November 2004 the Court issued Orders in the terms as agreed to by the parties that the Civil Case No. 91 of 2004 is discontinued and struck out with no order as to costs. The Court further issued directions for the trial in Criminal Case No. 12 of 2004 to commence on 21 February 2005. That the Application by Mr. Emelee and Mr. Simbolo be heard on that day also. That the pre-trial conference in Criminal Case No. 12 of 2004 be heard at 9.00 a.m. on 13th December 2004.
On 13 December 2004, no one appeared for the Public Prosecutor. Trial was again set for 21 February 2005.
The Court did not sit on 21 February but sat on 22 February. There was some confusion as to whether the trial was still on or whether the sitting that day was to set a new trial date. The confusion arose due to the fact that 21 February was subsequently declared a public holiday by the Head of State.
The defendants also wanted time to consider further witness statements that have been produced by the Public Prosecutor and served on the defendants a few days prior to 22nd of February. The Court issued further directions for the trial to commence on 9th May and to run for three weeks.
On 9th May 2005 Prosecutions advised the Court that it further wants time to prepare for the trial. This is due to re-organizations in recent weeks in the Office of the Public Prosecutor. Mr. Tevi who is the only officer left in that Office had suddenly found himself in a position where there is no one else to run the case, but him.
It is now over 17 months ago since the defendants were charged. For Mr. Emelee, it is now over 18 months since the first charge of Uttering forged documents was laid. The trial is yet to start.
APPLICANT’S CASE
The applicants, through their counsel, have urged this Court that the delay has now reached a point in time where their rights under article 5 (2) of the Constitution have been infringed. That is the right to a fair hearing within a reasonable time. Further that their right to a fair hearing cannot be guaranteed as memories fade with time and witnesses become unavailable.
Mr. Sugden on behalf of the applicants submitted that a delay of 12 months is not a reasonable period. In a case in New South Wales where a decision was not issued after the completion of a trial for over 12 moths, it was held that the delay of 12 months was not a reasonable period. Mr. Sugden however, could not name the case he was citing. I treat this simply as a submission that a delay of 12 months is not a reasonable time.
The Court was further referred to the case of Swanson v. Public Prosecutor, Criminal Appeal Case No. 6 of 1997, [1998] VUCA 9. In that case the verdict was not given for over 8 months after the hearing. A motion to quash the indictment was filed under article 5 (2) of the Constitution on the allegation of a failure to afford the appellant a trial within a reasonable time. At page 14 of the judgment their Lordships, in their discussions on the need for speedy justice said:-
“...BUT given the need to supply reasons, the verdict must still be delivered within a reasonable time after the conclusion of the hearing. Any accused is entitled to speedy justice and should not have to wait any longer than is absolutely necessary to learn of his/her fate.”
The Court went on to say that a delay of 2 months in the circumstances of that case between conclusion of hearing and verdict was the most that could have been reasonably justified. It went on say that:-
“one must refrain form laying down a tariff, but a delay of 8 months was plainly excessive by any standard.”
The case of Republic v Teoiaki, [1993] KIHC 1 of Kiribati was also cited as authority that the delay prejudices the defendant’s case as they are entitled to a fair trial. Mr. Sugden further submitted that the delay in itself is prejudicial to the case of the defendants as memories become dimmer and witnesses become unavailable. And that it is not necessary to establish actual prejudice. Prejudice is presumed to exist. The case of Seru v State (2003) FJCA 26 was cited as authority. The relevant parts of those judgments are set out below:-
In Republic v Teoiaki the High Court of Kiribati at page 2 said:-
“Although it was not in the public interest that persons charged with criminal offences went free without trial, an accused person was presumed innocent and was entitled to a fair trial. If an accused was unable to receive a fair trial through no fault of his own then he was entitled to an acquittal. In this case it could be presumed that the appellants would be prejudiced by the delay in establishing their defences as the allegations in the charges concerned events going back a number of years which would have the result that the applicants or any rate any witness, would be unable to recollect with accuracy what had really happened. Accordingly, the Court would find that the applicants were unable to obtain a fair trial within a reasonable time and would therefore order that the charges against them discharged.”
In Seru v State the Court of Appeal said:-
“We take the view however, that the delays are of an order where the presence of prejudice may be inferred. In any event we agree with Casey J (Martin at 430) that if prejudice or its absence is regarded as the dominating factor, the purpose behind S29 (3) of ensuring the speedy disposal of charges is deflected. Likewise Bell v Director of Public Prosecutions [1989] AC 937 a Privy Council decision under the Jamaican Constitution recognized the accused’s right may be infringed notwithstanding he is unable to point to any specific prejudice.”
Section 29 (3) of the Fiji Constitution is similar to our article 5 (2) of the Constitution. It states that every person charged with an offence has the right to have the case determined within a reasonable time.
PROSECUTION’S CASE
Mr. Tevi on behalf of the Public Prosecutor accepted that the matter has taken a long period of time. However, due to changes that have occurred recently in the Office of the Public Prosecutor, he is applying for an adjournment to enable him to prepare for the trial.
Mr. Tevi further acknowledged the position the defendants are facing. However, he submits that the defendants do not suffer any prejudices despite their circumstances. They are all employed and continue to be employed. The case of Teoiaki is different. The applicant in that matter suffered prejudice. He could not find employment due to his situation. That is not the situation in the present case.
There must be a balance between the criminal administration system and the rights of accused under Article 5 (2) of the Constitution. If the Court strikes this matter out it would affect public view on the Office of the Public Prosecutor and confidence in the criminal justice system.
Mr. Tevi went on to submit that “reasonable time” should be given some meaning by this Court. The meaning will differ on a case by case basis, due to the circumstances of each case and the local conditions of the Offices responsible for the administration of the criminal justice system. That this again goes back to the issue of an effective administration system.
Mr. Tevi referred the Court to Swanson v Public Prosecutor where the Court of Appeal held that the delay of 8 months before a verdict was given was excessive. However, Mr. Tevi referred the Court to the case of Seru v State [2003] FJCA CR, page 4 last paragraph, where the Court of Appeal of Fiji pointed out that the “interest which the constitutional rights are designed to protect as comprising both individual and societal rights. The former were the right to security of the person, the right to liberty, and the right to a fair trial. As to the latter, prompt trials enhanced the confidence of the public in the judicial system. Further, there was a societal interest in bringing to trial those accused of offending against the law.”
Mr. Tevi concluded that to give meaning to “reasonable period” the Court must weigh the individual right as against the society’s to have the defendants tried to reach a decision whether to grant the application of the defendants.
THE LAW
The Constitution - article 5 (1) and (2):
“Fundamental Rights and Freedoms of the individual
5 (1) The Republic of Vanuatu recognizes, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedom of the individual without discrimination on the grounds of race, place of origin, religious on traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health.
(a).....................................
(b)....................................
(c)....................................
(d) protection of the law;
(e)....................................
(f)....................................
(2) Protection of the law shall include the following:-
- (a) everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;
- (b) everyone is presumed innocent until a court establishes his guilty according to law;”
Penal Code Act [CAP. 135] sections 79 and 141
“CONSPIRACY TO DEFEAT JUSTICE
No person shall-
(a) conspire with any other person to accuse any person falsely of any offence or to do anything to obstruct, prevent, pervert, or to defeat the cause of justice;
(b) in order to obstruct the due course of justice, dissuade, hinder or prevent any person lawfully bound to appear and give evidence as a witness from so appearing or giving evidence, or endeavour to do so; or
(c) obstruct or in any way interfere with or knowing prevent the execution of any legal process civil or criminal.
Penalty: Imprisonment for 7 years.
UTTERING FORGED DOCUMENTS
DISCUSSIONS
Road to trial since charges were laid
Christophe Emelee was charged with uttering forged documents contrary to s.141 of the Penal Code Act [CAP. 135] on 15 November 2003. He was further charged with conspiracy to defeat justice contrary to section 79 of the Penal Code Act [CAP. 135] on 3 December 2003. Defendants Guy Bernard, John Simbolo, John Less Napuati and Steven Kalsakau were charged with the offence of conspiracy to defeat justice contrary to section 79 of the Penal Code Act [CAP. 135] on 5 December 2003. For Mr. Emelee, in relation to the first charge, it is now approximately eighteen months since that charge was laid. In relation to all the defendants it is approximately seventeen months since the charges were laid.
The Preliminary Enquiry took over 4 months to complete (from 11 December 2003 to 6th April 2004, about 4 months).
Proceedings in Civil Case No. 91 of 2004 commenced on 3rd May 2004. Defendants Napuati and Bernard sought orders of the Court to quash the decision of the Court below that committed them to stand trial in the Supreme Court. On 4th of November 2004 Civil Case No. 91 of 2004 was discontinued and struck out by consent of all parties. The reason for that was the concern at the delay in having the civil matter disposed of and the criminal matter get to trial. It was a clear statement of intent by all parties that the delays could be prejudicial to the case, particularly to the defendants in the criminal matter. And that it is in the best interest of every one that the trial take place urgently. It took some 7 months approximately to dispose of the Civil Case No. 91 of 2004.
As at 13 December 2004, (the trial preparation conference) all parties were ready for trial. No one submitted or advised the Court then that they were not ready for trial. The trial was set down to commence on 21 February 2005 and to run for a period of 3 weeks. Due to some confusion as to whether a new date was to be set for trial as that date was subsequently declared a Public Holiday and more so because the Public Prosecutor had introduced further witness statements so close to that date that the defendants have not had the time to consider and prepare any responses to them that the trial was moved to 9 May 2005.
On 9th May 2005 the Court sat. However Mr. Tevi, on behalf of the Office of the Public Prosecutor, applied to have the trial adjourned to another date as he was not ready to prosecute the case.
INSTITUTIONAL RESOURCES
As early as January 2004, the Office of the Public Prosecutor recognized that it would need outside assistance to prosecute the conspiracy case. In a letter dated 19 January 2004 the Public Prosecutor made it clear that the Office would require outside assistance because “we became directly involved during the course of monitoring the prosecution against the two masters of the Taiwanese fishing boats without a licence.”
In early April of this year, there was still a Public Prosecutor in the Office of the Public Prosecutor. The date and time set for trial in this matter was made on 13 December 2004. The recognition that outside assistance will be needed was made in January 2004. Why none was made is a matter for the Office of the Public Prosecutor.
On 22 February 2004 when the new trial date was set for 9th May 2005, the Public Prosecutor was in Court and agreed this date with the other parties. The Public Prosecutor and the defendants were ready for trial on 9th May.
On 9th of May Mr. Tevi informed the Court basically that he picked up the file last Wednesday and tried to make some sense of it as he is the only Officer left in the Office of the Public Prosecutor. This is a sad day indeed. It is clear that no proper arrangements were put in place prior to the departure of the most senior officer of the Office of the Public Prosecutor to ensure that the trial in this matter commenced on 09th May 2005 as agreed by all the parties in court on 22 February 2005. The duty is on all institutions responsible for the administration of criminal justice to ensure that those charged with a criminal offence have a speedy justice.
NATURE OF THE CASE
I turn now to the nature of the case. All the defendants were charged with the one and same offence, which is, conspiracy to defeat justice. Besides Mr. Emelee who was also charged with uttering false documents arising out of the same incident.
Briefly, in early November 2003, the masters of two foreign fishing vessels purportedly charted by John Simbolo operating under the business name “Sound Fishing” were charged with having conducted fishing operations without a fishing licence. Simbolo’s office was within the offices of the Tuna Fishing Company, a company run by Chrispher Emelee. The two vessels had fishing licences but those licences had not commenced operation at the time they were caught fishing in Vanuatu waters. It is alleged that the vessels had not been registered with the Vanuatu Maritime Authority. Christopher Emelee was at that time the Chairman of the VMA Board. John Less Napuati, Acting Commissioner of the VMA, had refused to supply police with requested information and would only do so on being summoned. Three days after the masters were charged two documents appeared. One was the second licence granting the vessels permission to conduct “test fishing” during the period when they were caught. The second was a backdated letter from the Acting Commissioner of VMA granting the vessels temporary registration. In two separate meetings held previously concerning the activities of the vessels at which Mr. Emelee, Simbolo, and Napuati were present nothing was ever said about the existence of those documents.
It cannot be said, in my view, that this is an unduly complex case. The delay can be summarized as due to two principal factors: first the lapse of some four months since laying of charges and committal to the Supreme Court by the Magistrate Court. Secondly, lapse of some further seven months as a consequence of Civil Case No. 91 of 2004.
No submissions were made or authorities on the issue whether any period should be waived in the calculation of the period of delay in having a trial. As such I make no comments.
No submissions were made as to the length of proceedings usually in cases of this nature. No data was introduced into the Court to indicate current trends, if any. As such I cannot make any comparative assessment as to whether this has taken longer than usual.
PREJUDICE
Prejudices in the delay are presumptive. One need not show actual prejudices to be entitled to the relief under Article 5 (2) (a) of the Constitution, in my view. I agree with the view expressed by the Fiji Court of Appeal in Seru v State where their Lordships said:-
“we take the view however, that the delays are of an order where the presence of prejudice may be inferred. In any event we agree with Casey J (Martin at 430) that if prejudice or its absence is regarded as the dominating factor, the purpose behind s 29 (3) of ensuring the speedy disposal of charges is deflected.”
This, in my view, equally applies to article 5 (2) of the Vanuatu Constitution. That provision was designed to ensure the speedy trial of those who are charged with an offence. To hold otherwise would have the effect echoed by the Fiji Court of Appeal. The delay by some 17 to 18 months without disposing of the charges, in my view, is not a reasonable time. I take into account the fact that activities from which were laid occurred in late October early November of 2003.
At what point does the delay become unreasonable
The approach to a determination whether the rights of the defendants under Article 5 (2) (a) of the Constitution have been infringed must be by a judicial determination as opposed to an application of a mathematical or administrative formula. I agree with the dicta in R. v Morin [1992] 1 SCR 771 where Sopika J. said: -
“The general approach to determination as to whether the rights have been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section designed to protect against factors which either inevitably lead to delay or are otherwise cause of the delay.”
[Article 5 (2) of the Constitution does not itself provide any guideline as to the meaning of “reasonable time”. As such the Court needs to look to other aids to assist it to reach an opinion as to what is a “reasonable time” and especially in the circumstances of this case whether the delay of some 17 to 18 months is excessive and therefore not a reasonable time.]
The question in this case is, at what point does the delay becomes unreasonable. In the case of Peter Swanson, the Court of Appeal held that a delay of eight months in handing down the courts verdict after completion of the trial was excessive when considering a motion to have the matter struck out under Article 5 (2) (a). This is a matter that is yet to reach trial. The defendants have had the charges hanging over their heads for some 17 to 18 months now. It is now approximately 18 months and the likelihood of witnesses remembering events that occurred at that time with accuracy grows dimmer by the day. As such the applicants cannot obtain a fair trial within a reasonable time in my view.
The Office of the Public Prosecutor in its prosecutorial function (and other offices responsible for the administration of the criminal justice) represents the public interest in ensuring that those who are charged with having committed criminal offences do get tried before a court of law to determine their guilt according to law. That public interest is balanced with the fundamental right of the accused person under article 5 (2) of the Constitution to have a fair trial within a reasonable time. Article 5 (2) is designed to ensure speedy trials of those charged with criminal offences. The public interest, I repeat, is that those charged with criminal offences must be tried. Set against this is their fundamental right to a fair hearing within a reasonable time. That right includes the presumption of innocence until proved guilty before a Court of law in accordance with the Constitution.
The application by the Prosecution on 09th May 2005 for further adjournment to get ready for trial, in my view, has reached that point where the delay is breaching the rights of the defendants under Article 5 (2) of the Constitution. Why should the defendants continue to suffer the stigma of criminal charges hanging over their heads daily when the cause of the delay lies elsewhere and not with them. The applicants have been ready for trial for sometime now.
CONCLUSION
In all the circumstances of this case, I have no doubt that the delay in getting this matter to trial by some 17 to 18 months is not a reasonable time. The Application is granted. All the defendants are discharged of the charges laid against them.
DATED at Port Vila, this ... day of May 2005.
H. BULU
Judge.
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