OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

ALLEGED DELAY AND INACTION IN INVESTIGATING MOTOR VEHICLE BY POLICE AND THE PUBLIC PROSECUTOR.

13 August 2004

9236/2004/07

REPUBLIC OF VANUATU

PUBLIC REPORT ON THE

ALLEGED DELAY AND INACTION IN INVESTIGATING MOTOR VEHICLE ACCIDENT INVOLVING DUDLEY ARU BY POLICE AND THE PUBLIC PROSECUTOR.

SUMMARY

Police delay in investigating any complaint that has been reported to the police is an on-going issue that have always been investigated and reported by this Office.

This report is issued publicly in order to highlight the lack of commitment on the part of police and more specifically the Traffic Department relating to a car accident that involved Mr Dudley Aru sometimes in 1997 under the influence of alcohol.

The Ombudsman has found that despite the Police presence on the scene, the police has only started to investigate this matter, as from 19 May 1999, two years later to recover the case. There was no clear information and explanation on such delay of investigation in this case.
The Ombudsman also found that the office of the Public Prosecutor has also contributed in delaying the process of the case before it went to court. The Police record indicated that the case has been completed on June 1999 and was sent to the Office of the Public Prosecutor. However, the case was completed and listed for hearing on November 2001, which means two years and five months. As a result of the delay of investigation on the part of both Police and the Office of the Public Prosecutor, the case was rejected on the grounds of unreasonable lapse of time.

Both the Office of the Public prosecutor and the Police Traffic Department being regarded as Law Enforcement Authorities were not able to explain the reason for the delay in handling this case properly for almost five years.

The Ombudsman recommends that the Office of the Police Commissioner should be responsible for the proper management and coordination of all traffic and other cases to avoid such unjustified delays in the future.

It is also recommended that Police officer, Edward Kalnura who was in charge of investigating the case should be reprimanded by the Police Commissioner for failure to carry out his lawful duty within a reasonable time.

The Ombudsman finally recommends that Public Prosecutor should have in place a proper administration and case management system to handle all cases that have been reported and all Police investigation files forwarded to his office. 

TABLE OF CONTENTS

SUMMARY
1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

1. JURISDICTION

1.1 The Constitution, the Ombudsman Act and the Leadership Code Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes, the Police, the Office of the Public Prosecutor, the Commissioner of Police and the Public Prosecutor.

The Ombudsman can also look into defects in laws or administrative practices, including the Police Act, and the administration of the Office of the Public Prosecution.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this investigation is also to determine whether the conduct of the former Commissioner of Police, Mr. Peter Bong ("Mr. Bong") and the Public Prosecutor, Mrs. Heather Lini Leo("Mrs. Leo") in handling the case was proper

2.2 The scope of this investigation is to establish the facts over the alleged unjustified delay to investigate a car accident involving Mr. Dudley Aru ("Mr. Aru") in 1997 and whether the Police Act which provides for the duty of the force was defective.

2.3 The scope of the paper is also to provide an overview of whether the administration practice of the Office of the Public Prosecutor for not presenting the case to the court was defective.

2.4 This Office collects information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS

The relevant laws, regulations and rules are mentioned in the Appendix A.

4. OUTLINE OF EVENTS

4.1 On 12 March 1999, the Ombudsman took the initiative under section 11 (2) (b) of the Ombudsman Act of 1998 to investigate the case on the alleged unjustified delay of investigating Mr. Aru’s car accident. The complaint alleges that sometime in 1997 Mr. Aru who was at that time working with Motis Pacific Lawyers, had a car accident while under the influence of alcohol. It is alleged that despite the police presence on the scene, there was no investigation made.

4.2 On 12 March 1999, Acting Public Prosecutor, Ms. Kayleen Tavoa confirmed that the Office of the Public Prosecutor had not yet received the file concerning the accident from the Police.

4.3 On 6 April 1999, the Ombudsman had reminded Mr. Pakoa Tarimas "(Mr. Tarimas"), Officer In-Charge of the Traffic Section to provide him with the status of the case. On the same date, the Ombudsman also requested the Commissioner of Police, Mr. Bong to confirm whether there was an action to investigate this case by Police.

4.4 On 8 April 1999, in response to the Ombudsman request, Mr. Bong had instructed the Ombudsman to refer this matter to the Acting Commissioner of Police, Mr. Holi Simon who was in-charge of queries regarding Traffic Operation. In addition to his letter of 8 April, 2002, Mr. Bong also confirmed on 9 April 2002, that the case has been recorded in the Occurrence N0 602 of 1997 and that Mr. Tarimas was asked to inform the Commissioner of the progress of the file. It was also mentioned that Police Officer, Edward Kalnaru was tasked to this car accident. See appendix B.

4.5 On 21 April 1999, Mr. Tarimas informed the Ombudsman that Mr. Aru’s accident case file had been recovered and that the Police had now decided to investigate the case. He mentioned in his letter (see Appendix C) that the case was recorded at the general duties in the Occurrence book N0 602/97 and later registered in traffic Occurrence Book as 75/99. He assured the Ombudsman to provide him with all necessary documents once the Police investigation docket was completed.

4.6 On 4 May 1999, the Ombudsman requested Mr. Tarimas to provide an explanation on the delay of Police for not investigating this matter for almost two years.

4.7 In response to that particular information, Mr. Tarimas said that the Traffic Office was only notified to inquire on this matter by 17 May 1999. However he could not do much on this matter because he was involved in an operation of the Vanair Crash and the disappearance lost of MV Latua. He could not provide the Ombudsman with specific reason on the delay of investigation by police over this matter. See appendix D.

4.8 On 1 July 1999, the Ombudsman received confirmation from Mr. Bong that the case has been completed and sent to the Office of the Public Prosecutor.

4.9 On 12 July 1999, when the Ombudsman contacted the Office of the Public Prosecutor to confirm Mr Peter Bong’s letter of 1st July. Prosecutor Kiel Loughman ("Mr. Loughman") advised that the case reached the Office of the Public Prosecutor on 19th June 1999 and will be assessed before listed for hearing by 19th August 1999. See Appendix E.

4.10 On 2 September 1999, the Ombudsman sent another letter to Mrs. Leo, to confirm whether the case was already heard in Court. We received information that the case has been postponed until 16 November 1999.

4.11 On 6 October 1999, Mr. Loughman advised the Ombudsman that the Office of the Public Prosecutor could not furnish the Ombudsman with a copy of the file until the Prosecution is completed. In any event he could not find from the file any material showing that there is a delay in investigation of the accident. 

4.12 On 26 October 1999, Mrs. Leo also confirmed that she could not pass the file to the Ombudsman as a matter of policy and law until the case is being heard in court. See Appendix F.

4.13 On 1 February 2000, we requested Mrs. Leo to provide the Ombudsman with a copy of the court judgement of the case which apparently was heard in Court on 16 of November 1999. In response to our inquiries Mrs. Leo confirmed to the Ombudsman that the case was not listed for trial. She added that because of the two weeks Criminal Justice Administration Workshop, most of participants include Lawyers, Magistrates and Prosecutors and all cases of November 1999 were postponed until further notice.

4.14 On 19 May 2000, the Ombudsman also requested the Office of the Public Prosecutor to up date the Office with the result of that case. No response was received from the Office of the Public Prosecutor until we got confirmation from the Chief Registrar, Mrs. Rita Naviti ("Mrs. Naviti") that this case is among 700 backlog of cases that are listed for conference on 14 November 2000 at 8.30am.

4.15 On 8 February 2001, the Ombudsman requested Mrs. Naviti whether the case has been heard in November 2000, we were told that the above case has been struck out for want of Prosecution. See copy of the Court judgement in appendix G.

4.16 On 22 April 2001 in a telephone conversation between Mrs. Leo and one of the investigators from the Ombudsman Office, Mrs. Leo said that the case has been rejected by the Court due to lack of evidence provided from the Police investigation. She added that, Mr. Less Napuati ("Mr. Napuati") who was at that time one of the Prosecutors was tasked for this case. However, the case may have been left out for prosecution while he was attending a 9 months overseas course of Masters Degree in Malta. He reassumed his duties by June 2001.

4.17 On 13 August 2001, the Ombudsman sent a letter to Mr. Napuati to confirm why the case was not brought to the court on 14 November 2000. 

In response to the Ombudsman’s letter Mr. Napuati said that before leaving for Malta, he had made prior arrangement to have the case heard in Court on 14 of November 2000. However, he will apply to court for further hearing of 5 November 2001. See Appendix H and I.

4.18 On 21 November 2001, we received a letter from Myranda Forsyth from the Office of the Public Prosecutor that the case could not be re-listed and was refused by the court on the grounds of unreasonable lapse of time. Therefore, the case is now closed. See appendix J.

5. RESPONSES BY THOSE WITH FINDINGS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also, a working paper was provided prior to preparation of this public report to give the individuals mentioned in this report another opportunity to respond.

5.2 Responses were only received from the following:

-	Mr Less John Napuati who agrees that the Office of the Public Prosecutor does not have a proper administration system of filling file which also resulted of mishandling and loss of file.

-	Mr Arnolds Kiel Loughman who was also in-charge of dealing with this case explained that he had previously mentioned that the file he had received from the police does not contain any material from the police to show that there was a delay in investigating this case on the part of police. 

-	The Prime Minister who is also Minister responsible for Police, acknowledge the recommendation which require a good step to put in place by police in order to avoid similar incident in the future See Appendix K.

6. FINDINGS

6.1 Finding 1: THE ACTION OF POLICE IN TRAFFIC SECTION WITH RESPECT TO THIS ACCIDENT WAS DELAYED FOR UNJUSTIFIED REASONS AND CONTRARY TO PROVISIONS SET IN THE POLICE ACT AND POLICE STANDING ORDERS. 

The Ombudsman has found that this case was reported to the Police in the General Duty Section in 1997. However, the Police started to investigate the accident as from 1999. The Occurrence Book of the traffic Operation indicates that the matter was recorded only in the docket of the Police Traffic section on 16 May 1999.

The Ombudsman found that the inaction of Police not to investigate this car accident is contrary to section 4 (Cap 105) of the Police Act, section 23 of the Criminal Procedure Code Act (Cap 136) and the order N0 1 of the Police Standing Order N0. P.1 that provides guidelines of complaints received by Police to attend to complaint quickly and promptly.

6.2 Finding 2: FORMER COMMISSIONER OF POLICE, MR PETER BONG AND THE DEPUTY COMMISSIONER, MR HOLI SIMON FAILED TO ENSURE THAT THE SENIOR OFFICERS APPOINTED UNDER SECTION 7 OF THE POLICE ACT PERFORM THEIR DUTIES EFFECTIVELY.

The Ombudsman found that the Commissioner of Police, Mr. Bong and his deputy, Mr. Simon failed to ensure that the Senior Officers appointed in the Traffic section performed their duties effectively.

Inspector Eric Pakoa Tarimas was at that time in-Charge of the Traffic Unit, however, he could not justify the reason as to why the case was not processed for investigation. The Commissioner of Police and his deputy may not have a check or follow-up system to monitor the various cases handled by the Police Department. As a result of this poor case management system, this case was not investigated for almost two years without any justified reason.

6.3 Finding 3: FAILURE TO PERFORM THE DUTIES AND RESPONSIBILITY AS POLICE OFFICERS UNDER THE LAWS AND VANUATU POLICE FORCE STANDING ORDER.

The Ombudsman also found that Mr. Pakoa Tarimas who was Officer in-charge of the Traffic Section at the time of the accident should be held responsible of the delay of investigating Mr. Aru’s car accident for almost two years. Mr. Tarimas knew he had a lawful duty to carry out investigation of any matter that is reported to him. However, he failed to carry out his duties responsibly.

Police Officer, Edward Kalura from the Traffic Section was tasked for this case. The Ombudsman finds that Mr. Kalura also failed to carry out his lawful duties as a Police Officer.

6.4 Finding 4: POOR CASE MANAGEMENT BY THE PUBLIC PROSECUTOR’S OFFICE WHICH LED TO DELAY OF CASE.

The Ombudsman also found that the case was sent to the Prosecution on 19 June 1999. However, despite numerous correspondence between the Ombudsman’s Office and the Office of the Public Prosecutor, it was found that there was no clear information from the Public Prosecutor as to whether the case would be listed in court or not. 

This case was neglected and no follow-up system was in place resulting in the case being struck out for want of prosecution on 21 November 2000.

6.5 Finding 5: MALADMINISTRATION BY POLICE AND THE OFFICE OF THE PUBLIC PROSECUTOR.

The Ombudsman found that both Police and the Office of the Public Prosecutor should be held responsible for the poor administration and case management in dealing with this case responsibly.

7. RECOMMENDATIONS

7.1 Based on the above findings the ombudsman recommends that:

Recommendation No. 1: The Office of the Police Commissioner should be responsible for the proper management and coordination of all traffic and other cases to avoid such unjustified delays in the future.

Recommendation No. 2: Police officer, Edward Kalnura who was in charge of investigating the case should be reprimanded by the Police Commissioner for failure to carry out his lawful duty with a reasonable time.

Recommendation No. 3: Public Prosecutor should have in place a proper administration and case management system to handle all cases that have been reported and all Police investigation files forwarded to the Office of the Public Prosecutor.

Dated the 13th day of August 2004.

Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Relevant Laws, Regulations and Rules.

B Copy of letter from Mr. Peter Bong dated 9 April 1999

C Copy of letter from Mr. Tarimas 

D Copy of letter from Mr. Tarimas dated 27 May 1999.

E Copy of letter form Mr. Kiel Loughman dated 19th July and October 1999

F Copy of Letter from Mrs. Heather Lini Leo

G Copy of the Court Judgement 

H Copy of Letter from Mr. Less Napuati dated 20 August 2001

I Copy of letter from Mr Less Napuati

J Copy of letter from Mrs Myrandah Frosyth from the Office of the Public Prosecutor 

K Response letter from Mr Less Napuati 

L Response letter from Kiel Loughman 

M Copy of letter from the Prime Minister, Honorable Edward Nipake Natapei 

Appendix A

Relevant Laws, Rules and Regulations

CONSTITUTION OF THE REPUBLIC OF VANUATU 

CONDUCT OF LEADERS

66.(1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b) demean his office or position;

(c) allow his integrity to be called into question; or

(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1).

DEFINITION OF A LEADER

67. For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.

POLICE TO PREVENT BREACHES OF THE PEACE OR COGNISABLE OFFENCES

23 Every police officer may intervene for the purpose of preventing, and shall to the best of his ability prevent, a breach of the peace or the commission of any cognizable offence.

Police Act Cap 105:

Section 4 (1) It shall be an essential duty of the Force to maintain an unceasing vigilance for the prevention and suppression of crime.

Section (2) The Force shall be employed throughout Vanuatu and its territorial waters for-
(a) the preservation of peace and the maintenance of order.
(c) the enforcement of laws
(d) the prevention and detection of offence and the production of offenders before the courts; and
(e) such duties as may be expressly provided by law.

Section 7 Officer-In-Charge of Police.

(1) The Command and control of any particular unit of the Force in any place shall be vested in such member as may be appointed by the Commissioner to be in charge thereof. Any member so appointed shall be an officer in charge of Police for the purpose of this Act.

(1) an officer in charge of police shall be subordinate to and carry out the orders of the Commissioner in all maters connected with:

(a) the discharge of the general function of the Force as provided by section 4.

Section 35 (1). Every member shall exercise such powers and perform such duties as are by law conferred or imposed upon him, and shall obey all lawful directions in respect of the execution of his office which he may from time to time receive from his superiors in the Force.

(2) Every member shall be considered to be on duty at all times and may at any time be detailed for duty in any part of Vanuatu.

(3) It shall be the duty of every member to promptly obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, the prevent the commission of offences and public nuisances, to detect and bring offenders to justice and to apprehend all persons that is legally authorised to apprehend and for whose apprehension sufficient grounds exists .

Order 1 of the Standing Orders N0.P.1 on offences and complaint reported-Action by Police provides:

5 All offences and complaints are promptly attended to at the time they received; and.

6 That proper supervision is given to ensure the subsequent investigation is thoroughly and speedily completed. 

Disciplinary offence under section 36 (1) of the Public Service Act N0 11 of 1998.

An employee commits a disciplinary offense who: 

-(c ) is negligent, careless, indolent, inefficient, or incompetent in the discharge of his or her duties

LEADERS

5. In addition to the leaders referred to in Article 67 of the Constitution, the following are declared to be leaders:

(k) the Commissioner and Deputy Commissioner of Police;

2 the Public Prosecutor;

PART 2 – DUTIES OF LEADERS

DUTIES OF LEADERS

13. (1) A leader must:

(a) comply with and observe the law;

(c) comply with and observe the duties obligations and responsibilities established by this Code or any other enactment that affects the leader; and