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Vanuatu Sessional Legislation |
Commencement: 4th August, 2003
REPUBLIC OF VANUATU
PUBLIC PROSECUTORS ACT
NO 7 OF 2003
Arrangement of Sections
PART 1 – PRELIMINARY
1 Purposes
2 Interpretation
PART 2 – OFFICE OF THE PUBLIC PROSECUTOR
3 Office of the Public Prosecutor
4 Budget for the Office
PART 3 – PUBLIC PROSECUTOR
DIVISION 1 – APPOINTMENT AND QUALIFICATIONS
5 Appointment of Public Prosecutor
6 Qualifications for appointment
DIVISION 2 – FUNCTIONS AND POWERS
11 Directions and Guidelines
12 Public Prosecutor may request assistance of Commissioner of Police
13 Public Prosecutor may make request to other prosecutors
14 Delegation by Public Prosecutor
DIVISION 3 – TERMS AND CONDITIONS OF APPOINTMENT
15 Salary, allowances and other benefits
16 Resignation
17 Public Prosecutor not to undertake other work
18 Termination of appointment
19 Acting appointments
PART 4 – DEPUTY PUBLIC PROSECUTOR, ASSISTANT PUBLIC PROSECUTORS AND STATE PROSECUTORS
21 Assistant Public Prosecutors
22 State Prosecutors
23 Functions of Prosecutors
24 Independence of Prosecutors
25 Right to practise law
PART 5 – OTHER STAFF
26 Support staff
27 Contractors and secondments
PART 6 – MISCELLANEOUS
30 Annual report
31 Regulations
32 Transitional provision for police officers
33 Transitional provision for certain State Prosecutors
34 Transitional provision for other staff
35 Transitional provision for Public Prosecutor
36 Commencement
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REPUBLIC OF VANUATU
Assent: 21st July, 2003
Commencement: 4th August, 2003
PUBLIC PROSECUTORS ACT
NO 7 OF 2003
An Act to establish the Office of the Public Prosecutor and for related purposes
Be it enacted by the President and Parliament as follows-
PART 1 - PRELIMINARY
The purposes of this Act are:
(a) to establish the Office of the Public Prosecutor; and
(b) to provide for a Deputy Public Prosecutor, Assistant Public Prosecutors and State Prosecutors; and
(c) to set out the functions and powers of the Public Prosecutor, the Deputy Public Prosecutor, Assistant Public Prosecutors and State Prosecutors.
In this Act, unless the contrary intention appears:
Assistant Public Prosecutor means an Assistant Public Prosecutor appointed under section 21.
Deputy Public Prosecutor means the Deputy Public Prosecutor appointed under section 20.
Minister means the Minister responsible for justice.
Office means the Office of the Public Prosecutor established under section 3.
prescribed means prescribed by the regulations made under this Act.
Public Prosecutor means the Public Prosecutor appointed under Article 55 of the Constitution.
State Prosecutor means a State Prosecutor appointed under section 22.
PART 2 – OFFICE OF THE PUBLIC PROSECUTOR
(1) There is established the Office of the Public Prosecutor.
(2) The functions of the Office are to prepare and conduct effectively, economically and efficiently on behalf of the Public Prosecutor any prosecution, other legal proceeding or matter in which the Public Prosecutor is involved.
(3) The Public Prosecutor is to control the Office with the assistance of the Deputy Public Prosecutor.
The Government must ensure that there is a sufficient budget allocated to the Office to enable it to properly perform its functions and to enable the Public Prosecutor to properly administer the Office.
PART 3 – PUBLIC PROSECUTOR
DIVISION 1 – APPOINTMENT AND QUALIFICATIONS
(1) The Public Prosecutor is to be appointed in accordance with Article 55 of the Constitution.
(2) The Public Prosecutor is to be appointed for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment and may be reappointed.
(1) A person is not to be appointed as the Public Prosecutor unless he or she:
(a) is admitted to practise as a legal practitioner in Vanuatu and has been so admitted for at least 7 years; or
(b) has been admitted to practise as a legal practitioner in Vanuatu or any other country or countries for a period of, or periods in total of, at least 7 years.
(2) The Public Prosecutor is a leader within the meaning of the Leadership Code Act No 2 of 1998 and that Act applies to the Public Prosecutor.
DIVISION 2 – FUNCTIONS AND POWERS
(1) The Public Prosecutor must perform his or her functions and exercise his or her powers under this Act or any other law independently.
(2) The Public Prosecutor is not subject to the direction or control of any other person or body in the performance of his or her functions or the exercise of his or her powers under this Act or any other law.
(1) The functions of the Public Prosecutor are:
(a) to institute, prepare and conduct preliminary enquiries; and
(b) to institute, prepare and conduct on behalf of the State, prosecutions for offences in any court; and
(c) to institute, prepare and conduct, on behalf of the State appeals in any court in respect of prosecutions; and
(d) to conduct, on behalf of the State as respondent, any appeal in any court in respect of prosecutions; and
(e) if requested by the Attorney-General to do so, to institute, prepare and conduct on behalf of the State, or be a party to, proceedings under legislation dealing with proceeds of crime, mutual assistance or extradition; and
(f) to discontinue prosecutions regardless of who instituted them; and
(g) if requested to do so, to give advice to members of the Vanuatu Police Force and any other investigators in relation to investigations, proposed prosecutions or prosecutions; and
(h) to provide assistance in obtaining search warrants; and
(i) to prosecute breaches of the Leadership Code Act No. 2 of 1998; and
(j) such other functions that are conferred on the Public Prosecutor by this Act or any other law.
(2) In the performance of his or her functions, the Public Prosecutor must have regard to:
(a) considerations of justice and fairness; and
(b) the need to conduct prosecutions in an effective, economic and efficient manner; and
(c) the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime.
(1) The Public Prosecutor may institute a prosecution of a person for an offence without a preliminary enquiry for the offence if the person consents to the prosecution.
(2) If a person has been committed for trial in respect of an offence or offences, the Public Prosecutor may institute a prosecution of the person for an offence for which a preliminary enquiry was held, but for which the person was not committed for trial.
(3) If a person has been committed for trial in respect of an offence or offences, the Public Prosecutor may institute a prosecution of the person for any other offence founded on facts or evidence disclosed in the course of the preliminary enquiry, without:
(a) a preliminary enquiry being held for that other offence; and
(b) the person being committed for trial for that other offence.
(4) Subsections (2) and (3) apply whether or not the Public Prosecutor institutes a prosecution for the offence, or for all or any of the offences, for which the person was committed for trial.
(5) If the Public Prosecutor considers it appropriate to do so in any other case, the Public Prosecutor may institute a prosecution of a person for an offence in respect of which:
(a) there has been no preliminary enquiry; or
(b) the person has not been committed for trail.
(6) Subsections (1) to (5) apply only in relation to offences triable in the Supreme Court and despite any provision of Part 7 of the Criminal Procedure Code [CAP 136] to the contrary.
(7) The Public Prosecutor may grant indemnity from prosecution for any offence to a person on account of:
(a) an undertaking given by that person to give evidence in a specified proceeding; or
(b) an understanding or expectation that that person will give such evidence.
(8) After a verdict has been given in a prosecution, the Public Prosecutor may request a magistrate or judge to reserve any question of law arising from the prosecution for the determination of the Supreme Court or the Court of Appeal, as the case requires.
(1) If a prosecution in respect of an offence has been instituted by a person other than the Public Prosecutor, the Public Prosecutor may take over and assume the conduct of the prosecution.
(2) In exercising the powers under subsection (1), the Public Prosecutor must act impartially having regard to the evidence available and, if the Public Prosecutor thinks it necessary, the Public Prosecutor may request the Commissioner of Police to conduct an investigation into the offence before deciding whether or not to take over the prosecution.
(3) The Public Prosecutor may take over a prosecution whether or not the person otherwise responsible for the prosecution consents.
(4) If the Public Prosecutor takes over a prosecution, the Public Prosecutor may decline to proceed further in the prosecution.
(5) If the Public Prosecutor decides to take over a prosecution, the Public Prosecutor must, as soon as practicable by notice in writing, inform the person otherwise responsible for the prosecution and:
(a) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution is to be heard; or
(b) if the prosecution is being heard by a judge or magistrate - inform the judge or magistrate in such manner as the Public Prosecutor thinks fit;
that the Public Prosecutor has taken over the prosecution.
(6) Failure by the Public Prosecutor to notify or inform under subsection (5) does not affect any of the Public Prosecutor’s functions or powers in relation to the prosecution.
(1) The Public Prosecutor may, by instrument in writing, issue directions, or guidelines, with respect to the prosecution of offences to all or any of the following:
(a) the Deputy Public Prosecutor;
(b) Assistant Public Prosecutors and State Prosecutors and any other person acting on behalf of the Public Prosecutor;
(c) any person who conducts investigations in relation to offences.
(2) A guideline or direction is not to prevent or hinder the discharge of any function or the exercise of any power by the Public Prosecutor, the Deputy Prosecutor, an Assistant Public Prosecutor or a State Prosecutor.
(3) To avoid doubt, directions are binding and guidelines are advisory.
(4) The Public Prosecutor must cause a copy of any guideline or direction to be published in the Gazette as soon as possible after it is made.
If the Public Prosecutor:
(a) is considering instituting, taking over or conducting, or has instituted or taken over, or is conducting, a prosecution for an offence; and
(b) is of the opinion that a matter connected with, or arising out of, the offence requires further investigation;
the Public Prosecutor may in writing request the Commissioner of Police for the assistance of members of the Vanuatu Police Force in the investigation of that matter.
(1) The Public Prosecutor may request the Deputy Public Prosecutor, an Assistant Public Prosecutor or a State Prosecutor to perform certain functions or exercise certain powers of the Public Prosecutor under this Act or any other law if the Public Prosecutor considers it desirable in the interests of justice that he or she should not perform those functions or exercise those powers.
(2) The Public Prosecutor may make a request because of the existence or possible existence of a conflict of interest or for any other reason.
(3) If the Deputy Public Prosecutor, Assistant Public Prosecutor or State Prosecutor agrees to a request, he or she is to perform the functions or exercise the powers to which the request relates.
(4) The performance of a function or the exercise of a power by the Deputy Public Prosecutor, an Assistant Public Prosecutor or a State Prosecutor under this section has the same effect for all purposes as it would have if it had been performed or exercised by the Public Prosecutor.
(1) The Public Prosecutor may, by instrument in writing, delegate to a member of the staff of the Office all or any of his or her functions or powers under this Act either generally or as otherwise provided by the instrument of delegation.
(2) A function or power so delegated, when exercised by the delegate, is taken, for the purposes of this Act, to have been exercised by the Public Prosecutor.
(3) A delegation of a power or function under this section does not prevent the exercise of the power of function by the Public Prosecutor.
DIVISION 3 – TERMS AND CONDITIONS OF APPOINTMENT
The Public Prosecutor is entitled to such salary, allowances and other benefits as are prescribed under this Act or the Official Salaries Act [CAP 168], whichever applies, and as may otherwise be agreed to in writing by the Public Prosecutor and the Minister on behalf of the Government.
The Public Prosecutor may resign his or her office by delivering to the President a signed letter of resignation.
The Public Prosecutor must not:
(a) engage in practice as a legal practitioner outside the duties of his or her office; or
(b) engage in paid employment outside the duties of his or her office unless the Minister gives his or her written consent to that employment.
The President must, in accordance with the advice of the Judicial Service Commission, remove the Public Prosecutor from office if he or she:
(a) becomes bankrupt; or
(b) is unable, because of mental or physical incapacity, to perform the duties of the office; or
(c) is absent from duty for 14 consecutive days in any period of 12 months without the approval of the Minister, but not including any absence occasioned by illness or other unavoidable cause; or
(d) engages in practice as a legal practitioner outside the duties of his or her office; or
(e) without the consent of the Minister, engages in paid employment outside the duties of his or her office; or
(f) is convicted of an offence for a breach of the Leadership Code Act No. 2 of 1998.
(1) The Deputy Public Prosecutor is to act in the office of the Public Prosecutor:
(a) during a vacancy in that office; and
(b) during all periods when the Public Prosecutor is absent from duty or from Vanuatu, or is for any reason unable to perform the functions of the office.
(2) If the Deputy Public Prosecutor is unable to act under subsection (1), section 26 of the Interpretation Act [CAP 132] applies to allow the appointment of an acting Public Prosecutor.
(3) While a person is acting in the office of Public Prosecutor, he or she has and may exercise all the powers, and must perform all the functions, of the Public Prosecutor.
(4) If a person, while acting in the office of the Public Prosecutor, does an act in the exercise or performance of a power or function of the Public Prosecutor, the act is, for the purposes of this Act, to be taken to have been done by the Public Prosecutor.
PART 4 – DEPUTY PUBLIC PROSECUTOR, ASSISTANT PUBLIC PROSECUTORS AND STATE PROSECUTORS
20 Deputy Public Prosecutor
(1) The Public Prosecutor is to appoint a person as the Deputy Public Prosecutor by instrument in writing.
(2) The appointment must be made on merit following a fair and transparent selection process.
(3) A person is not to be appointed as the Deputy Public Prosecutor unless:
(a) the person:
(i) is admitted to practise as a legal practitioner in Vanuatu and has been so admitted for a period of at least 5 years; or
(ii) has been admitted to practise as a legal practitioner in Vanuatu or any other country or countries, for a period of, or periods in total of, at least 5 years; and
(b) the person’s appointment has been approved by a committee consisting of a private legal practitioner appointed by the Public Prosecutor, and a representative from each of the State Law Office, the Public Solicitors Office and the Public Prosecutors Office nominated by the head of each Office.
(4) The Deputy Public Prosecutor holds office for the period specified in the instrument of appointment which must not exceed 3 years.
(5) The Deputy Public Prosecutor is to enter into a contract of employment with the Public Prosecutor and holds office on such terms and conditions as are specified in the contract.
(6) Despite subsection (2), a person who satisfies the criteria in subparagraph (3)(a)(i) or (ii) may be appointed as the Deputy Public Prosecutor for a period or periods in total that do not exceed 6 months without a selection process.
(7) Paragraph (3)(b) does not apply to an appointment made under subsection (6).
(1) The Public Prosecutor is to appoint Assistant Public Prosecutors by instrument in writing.
(2) An appointment must be made on merit following a fair and transparent selection process.
(3) A person is not to be appointed as an Assistant Public Prosecutor unless:
(a) the person has a law degree from a recognized tertiary institution or similar qualification; and
(b) the person’s appointment has been approved by a committee consisting of a private legal practitioner appointed by the Public Prosecutor, and a representative from each of the State Law Office, the Public Solicitors Office and the Public Prosecutors Office nominated by the head of each Office.
(4) An Assistant Public Prosecutor is to enter into a contract of employment with the Public Prosecutor and holds office on such terms and conditions as are specified in the contract.
(5) Despite subsection (2), a person who satisfies the criteria in paragraph (3)(a) may be appointed as an Assistant Public Prosecutor for a period or periods in total that do not exceed 6 months without a selection process.
(6) Paragraph (3)(b) does not apply to an appointment made under subsection (5).
(1) The Public Prosecutor may, by instrument in writing, appoint:
(a) a member of the Vanuatu Police Force; or
(b) a person employed in the Public Service; or
(c) a legal practitioner;
to be a State Prosecutor for the purpose of any prosecution or class of prosecution.
(2) A person is not to be appointed as a State Prosecutor unless:
(a) the person has sufficient experience and ability to undertake the duties of a State Prosecutor; and
(b) the person is of good character.
(1) The functions of the Deputy Public Prosecutor, Assistant Public Prosecutors and State Prosecutors are:
(a) to conduct, and appear in, prosecutions on behalf of the Public Prosecutor; and
(b) any other functions that are given to the Deputy Public Prosecutor, Assistant Public Prosecutors or State Prosecutors by or under this Act or any other law, or by the Public Prosecutor.
(2) In the performance of their functions, the Deputy Public Prosecutor, Assistant Public Prosecutors and State Prosecutors must have regard to the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime.
(1) The Deputy Public Prosecutor, Assistant Public Prosecutors and State Prosecutors must perform their functions independently and are not subject to the direction or control of any other person or body in the performance of their functions.
(2) However, the Deputy Public Prosecutor, Assistant Public Prosecutors and State Prosecutors must perform their functions in accordance with the directions of the Public Prosecutor who is responsible for the due exercise of their functions.
(3) The Public Prosecutor has control of the day to day management of the Assistant Public Prosecutors and the State Prosecutors so as to ensure that they function as a group in an effective and efficient manner.
(4) The Deputy Public Prosecutor is to assist the Public Prosecutor under subsection (3).
25 Right to practise law
(1) The Public Prosecutor, the Deputy Public Prosecutor, an Assistant Public Prosecutor or a State Prosecutor when carrying out work of a legal professional nature in that capacity for the Office:
(a) is entitled to practise as a barrister and solicitor in any court in Vanuatu; and
(b) is entitled to all the rights and privileges of a barrister and solicitor in that court;
whether or not he or she is so entitled apart from this subsection.
(2) If:
- (a) the Public Prosecutor, the Deputy Public Prosecutor, an Assistant Public Prosecutor or a State Prosecutor does or omits to do any act; and
- (b) he or she does or omits to do that act in the course of carrying out work of a legal professional nature in that capacity for the Office;
he or she is subject to the duties and obligations to which he or she would be subject if that act had been done or omitted to be done in the course of practice by him or her as a barrister and solicitor.
PART 5 – OTHER STAFF
(1) The Public Prosecutor is to employ such support staff as may be necessary for the efficient carrying out of the functions of the Office.
(2) Subject to subsection (3), a person is to be employed on merit following a fair and transparent selection process.
(3) A person may be employed for a period or periods in total that do not exceed 6 months without a selection process.
(4) A person employed under subsection (1) or (3) is to enter into a contract of employment with the Public Prosecutor and is to be employed on such terms and conditions as are specified in the contract.
(1) The Public Prosecutor may engage, under agreements in writing, persons having suitable qualifications and experience to provide services to the Public Prosecutor.
(2) The Public Prosecutor is to determine the terms and conditions of engagement of a person under subsection (1).
(3) The Public Prosecutor may be assisted by officers and employees of ministries, departments, agencies or authorities of the Government whose services are made available to the Public Prosecutor.
(4) The services of a person are to be made available to the Public Prosecutor under subsection (3) only if the Public Service Commission, the Police Service Commission, the Teaching Service Commission or the Judicial Service Commission, as the case requires, has given its prior approval for the person’s services to be made available to the Public Prosecutor.
PART 6 – MISCELLANEOUS
(1) The Public Prosecutor is to prepare a written manual for the Office to provide for all or any of the following:
(a) appointment and employment of legal and other staff, including different gradings and levels of legal and other staff;
(b) procedure for such appointment and employment, including probationary periods;
(c) salaries, allowances and other payments;
(d) mileage allowance and use of vehicles;
(e) subsistence, posting and travelling allowances;
(f) travel allowances beyond Vanuatu;
(g) housing benefits;
(h) general conduct;
(i) discipline;
(j) leave entitlements;
(k) medical entitlements;
(l) training and courses;
(m) cessation of service;
(n) superannuation;
(o) such other matters as the Public Prosecutor considers relevant to the Office.
(2) The Public Prosecutor may issue written instructions relating to any matter in the manual.
(3) The manual and any instructions:
(a) must not be inconsistent with any provision of this Act or any regulations made under this Act; and
(b) subject to a contrary intention in the manual or an instruction, are binding on all staff of the Office.
(4) In preparing the manual and in issuing any instructions, the Public Prosecutor may have regard to relevant rules, practices and procedures of Public Service Commission that apply in relation to the Public Service.
(1) The Public Prosecutor is, after consultation with the Law Society and the Law Council, to issue a Code of Practice and Ethics for prosecutors.
(2) The Code of Practice and Ethics is to be published in the Gazette.
(1) The Public Prosecutor must, within 3 months after the end of each year, prepare and give to the Minister a report with respect to the operations of the Office during that year.
(2) The Minister must cause a copy of the report to be laid before the Parliament as soon as possible after the report is received by him or her.
(3) The Public Prosecutor must cause copies of the annual report to be distributed to the public within 3 months after the report is tabled in Parliament.
The Minister may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(1) This section applies to a person if the person, immediately before the commencement of this Act, was a State Prosecutor appointed under section 32 of the Criminal Procedure Code [CAP 136] and a member of the Vanuatu Police Force.
(2) On and after the commencement of this Act, the person is taken to be appointed as a State Prosecutor under section 22.
(1) Subject to subsection (2), this section applies to a person if the person, immediately before the commencement of this Act, was a State Prosecutor appointed under section 31 or 32 of the Criminal Procedure Code [CAP 136].
(2) This section does not apply to a State Prosecutor if he or she:
(a) was a member of the Vanuatu Police Force; or
(b) was not funded from the budget of the Public Prosecutor.
(3) On and after the commencement of this Act:
(a) the person is taken to be appointed as an Assistant Public Prosecutor under section 21; and
(b) the person is to continue to be employed:
(i) on the same terms and conditions; and
(ii) with the same accrued or accruing entitlements; and
(c) the person’s service with the Public Prosecutor before the commencement of this Act counts as if it were service with the Office.
(4) Despite any other Act, no redundancy or severance payment is to be made to the person because of the operation of this section or the establishment of the Office.
(1) This section applies to a person who was employed by the Public Prosecutor, whether or not the person was appointed by the Public Service Commission or any other body, immediately before the commencement of this Act, other than a person who was a State Prosecutor appointed under section 31 or 32 of the Criminal Procedure Code [CAP 136].
(2) The person is, on and after the commencement of this Act, to continue to be employed:
(a) on the same terms and conditions; and
(b) with the same accrued or accruing entitlements.
(3) The person’s service with the Public Prosecutor before the commencement of this Act counts as if it were service with the Office.
(4) Despite any other Act, no redundancy or severance payment is to be made to the person because of the operation of this section or the establishment of the Office.
The instrument of appointment for the Public Prosecutor and the Public Prosecutor’s contract of employment that were in force immediately before the commencement of this Act continue in force on and after that commencement in accordance with their terms.
This Act commences on the day on which it is published in the Gazette.
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