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Public Prosecutor v Chevalier [2005] VUSC 70; Criminal Case No 041 of 2004 (15 March 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Appellate Jurisdiction)

Criminal Case No. 41 of 2004

PUBLIC PROSECUTOR

-v-

YVES CHEVALIER

Mr. John William Timakata for the Prosecution
Mr. Nigel Morrison for the Defendant

DECISION

The Defendant was charged with one count of “communicating false information relevant to grant or holding of aviation documents contrary to section 59 (1) of the Civil Aviation Act No. 16 of 1999.” It was alleged that the Defendant provided information to the Director of Civil Aviation that was false, and he knew that the information was false.

Section 59 (1) (a) of that Act provides that “a person commits an offence if the person by any means provides to the Director information relevant to the Director’s exercise of powers under this Act knowing the information to be false.”

The substantial factor in determining whether a person is guilty of an offence under that provision is the element of knowing the information to be false. The Magistrate’s Court in its decision dated 28th day of September 2004 found that there was no evidence at all to prove the element of knowledge on the part of the Defendant, and accordingly found the Defendant not guilty and discharged him.

The Public Prosecutor on 29th day of October 2004 filed a Notice of Appeal against the decision of the Magistrate’s Court.

On the 1st of February 2005 First Conference was held to advance the appeal. Mr. Morrison appearing for the Defendant at the conference informed the Court that he has only received the Notice of Conference but no Notice of Appeal. Directions were issued, amongst others, that the Prosecution were to file and serve the Notice of Appeal on the defence lawyer that day by 4 p.m.

• In a letter dated 3rd of March 2005 the Public Prosecutor advised the Court that he wants an urgent conference because he wants the current date set for the appeal hearing to be changed. The reasons advanced for that is that the area to be appealed is a technical area (civil aviation) thereby requiring specific technical knowledge in that field. This afternoon the Deputy Public Prosecutor reiterated that reason and informed the Court that Prosecutions have instructed a legal counsel from New Zealand who specializes in aviation legal services.
  

Mr. Morrison on behalf of his client opposed the application and applies to the Court for the Court to dismiss the appeal.

He submits that on 15th of December 2004 he wrote to the Public Prosecutor drawing to the attention of Public Prosecutor as the solicitor on record acting in the matter that he has not been served with any document concerning the appeal. Since then he has not received any response to that letter nor the Notice of Appeal and any other documents concerning the appeal.

He raises the question as to whether the appeal has been made within time.

He submits that the Directions of 1st February 2005 for the Prosecution to file and serve Notice of Appeal on the defence lawyer has not happened. It is now over one and a half month, sufficient time, but the Prosecution have done nothing.

He submits that the Appeal does not raise issues of technical nature that requires an outside counsel to assist the Public Prosecutor on. He goes on to refer the Court to section 207 (2) of the Criminal Procedure Code [CAP. 136] and says that this situation requiring the powers under section 207 (2) to be exercised is not at this point in time. He goes on to say that this stage does not require the involvement of any expertise, that will arise later. The Magistrate’s Court discharged the Defendant because there was no evidence at all produced by the Public Prosecutor to show whether the Defendant had knowingly provided that information to the Director. Mr. Morrison continues to submit that Prosecution has been entirely dilatory. Only a few days before trial Prosecution makes an application that the matter be adjourned because they want to get an outside assistance. The Prosecution has done nothing to advance this matter. He is yet to receive the Notice of Appeal plus other documents relating to the appeal.

The Judgment in the Magistrate’s Court was issued on the 28th day of September 2004.

The Notice of Appeal was filed on the 29th day of October 2004. The first conference regarding the appeal was on the 1st of February 2005 whereby directions were made for the Prosecution to file and serve Notice of Appeal on the Defendant by 4 p.m. on that day. That has not happened.

The Prosecutions has not sought leave to appeal out of time. In any criminal matter the aggrieved party has 14 days to lodge an appeal because he is not satisfied with the decision. In this matter the appeal was filed approximately 15 days after the expiry date of the appeal period.

My view is that:-

1. This appeal has been brought about in disregard for the rules and fairness to the Defendant;
   
2. The Defendant was never served with a Notice of Appeal. Yet today Prosecution is asking the Court to consider granting it permission to obtain overseas counsel who is an expertise in civil aviation to assist in the prosecution’s appeal. The poor Defendant still does not know what is happening;
   
3. The appeal has not been made in time. Further no leave to appeal out of time has been granted. The appeal in this matter is therefore dismissed.
   

DATED at Port Vila, this 15th day of March 2005.

H. BULU
Judge.