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

CRIMNAL CASE No.20 OF 2007

PUBLIC PROSECUTOR

-v-

KELL WALKER

Coram: Chief Justice Vincent Lunabek

Counsel: Mr John Malcolm for the Applicant/Defendant
Mr Bernard Standish for the prosecution

Date of hearing: 5 July 2007
Date of ruling: 6 July 2007 

RULING ON APPLICATOIN TO BE RELEASED
FROM CUSTODY OR SUSPENSION OF SENTENCE
PENDING APPEAL

This is an application of the Defendant, Kell Walker dated 2 July 2007. Mr Walker applies for the Warrant of Commitment dated 14 June 2007, be suspended until the hearing and determination of his appeal against his conviction and sentence.

The application is made pursuant to Section 209 of the Criminal Procedure Code [CAP.136].

Section 209 provides:-

"209.(1)	After the entering of an appeal by a person entitled to appeal, the trial court which convicted or sentenced such person may order that he be released from custody on bail subject to such conditions as the court may consider fit. [Emphasis added]

(2)	An application for release from custody on bail under this section may be heard in chambers. In the Supreme Court such application shall be by motion served on the Public Prosecutor. In a Magistrate’s Court such application may be made without formal process to any magistrate.

(3)	If the appeal is ultimately dismissed and the original sentence confirmed or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released from custody on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced."

Section 209 is of general nature. There is no guide as to its meaning and extent.

Section 209 contemplates 2 separate scenarios for bail applications.

The first scenario is about bail pending sentence after the trial court convicted the Defendant;

The second is bail pending appeal while the Appellant/Applicant is in custody and gives notice of appeal and filed a memorandum of his appeal.

In the absence of any guide from the legislature, the following is the approach I am proposing to follow:

Bail Pending Sentence

Where the Defendant is found or pleads guilty, the Court must not grant bail unless it is satisfied on the balance of probabilities that it is in the interest of justice to do so.

The onus of showing cause why bail should be granted is on the Defendant.

The determination of the interest of justice will involve consideration of:-
•	Possibility of imprisonment;
•	Delay in sentencing;
•	Personal circumstances (including those of the immediate family);
•	Anything else relevant.

If the Defendant is unlikely to receive a sentence of imprisonment, this must count against remand in custody.

Where a custodial sentence is inevitable, bail pending sentencing will be rare.

Bail Pending Appeal

This is a parallel situation with bail pending sentence. 

The applicant for bail carries the onus for establishing that, on the balance of probabilities, it is in the "interest of justice" that bail be granted.

The consideration relevant to determining bail pending appeal include:-
•	Strength of appeal;
•	Length of sentence;
•	Delay;
•	Personal circumstances (including those of immediate family);
•	Anything else relevant.

These factors must be weighed against each other rather than considered in isolation.

The Applicant Walker’s situation is in the second scenario.

The Defendant, Kell Walker, was convicted for the offence of threatening to kill a person, contrary to Section 115 of the Penal Code Act [CAP.135] and was sentenced to 2 years imprisonment and ordered to serve 12 months with immediate effect while the other 12 months be suspended.

He served his imprisonment sentence since 14 June 2007.

The Applicant’s application is supported by the following:
•	A Notice of Appeal dated 21st June 2007 
•	A Memorandum of Appeal against the conviction and sentence dated 29th June 2007 
•	A sworn statement of the Applicant dated 21 June 2007 
•	A sworn statement of Andrew Tartar dated 25 June 2007
•	A sworn statement of Serah Toto dated 26 June 2007.

I now consider the factors referred to above to the applicant’s situation.

1.	Strength of appeal 

I make no comment on the substance of Notice and Memorandum of Appeal of the Applicant. It is part of his right before the Court of Appeal. I do not detract from my findings of facts, observation of the prosecution witnesses, the Defendant in the defence dock and in the witness box and their demeanour the seriousness of the charge in Vanuatu society and as reflected by the maximum penalty imposed by Parliament.

The statement of Andrew Tartar is irrelevant to the present application.

2.	Length of sentence

On the basis of persuasive authorities provided to the Court, the imprisonment sentence of 2 years is within the judicial discretion bearing in mind of the seriousness of the charge which is reflected in the heavy maximum penalty imposed by Parliament.

It is my view that the PP v. Manses case is wrong in sentencing principle.

3.	Delay

There must be 2 aspects for consideration for delay leading to injustice.

The first aspect is the time factor between the application and the hearing of the appeal against the conviction and sentence is considered.

The second aspect is also that it would be unfair on the Defendant to wait for his appeal for a considerable time.

A Court of Appeal Session is organised for 2 weeks from 6 August 2007 to 17 August 2007.

There is no injustice for the Applicant to remain in custody until the hearing of his appeal like any ordinary citizen.

4.	Personal circumstances (including those of the immediate family)

The application is supported by material as referred to earlier. However, Andrew Tartar sworn statement is not helpful as it does not relate to this application. 

As to the medical situation of the Applicant, I am informed by the prosecutor Mr Standish at the Bar Table [and I am of the view that I can do so bearing in mind that this type of application can be made before the Judge in Chambers], that after his enquiry to custodial officer who accompany Walker to Hospital, Walker made no claim of brain tumour or colon cancer.

A pharmacist who prescribed medication to Walker provided information on medication "xeluda" prescribed from January 2006 to March, 2006. It is said the treating doctor died.

However, Walker does not indicate how he was treated while he was in the sea; How he was treated while he was arrested and waiting for his trial and how he was treated while he is in the Correctional Services.

The state of medical evidence is very unsatisfactory.

5.	Anything else relevant

I am informed that Walker is not a flight risk person; he is a notorious person; his passport has been kept by the police; the Australian Federal Police are still investigating in respect to him. I take all that into consideration.

I now consider whether I should suspend the imprisonment sentence of the Applicant.

The Applicant does not have the right to bail, but bail may well be granted if the sentence is likely to have been served before the appeal is heard. This is the very purpose of Section 209 of the Criminal Procedure Code [CAP.135].

On the overall consideration, I decline to suspend the sentence of 12 months imposed on the Applicant who is now serving.

The application is refused. The Applicant is at liberty to re-apply on basis of new medical material.

DATED at Port-Vila this 6th day of July 2007

BY THE COURT

Vincent LUNABEK
Chief Justice