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Public Prosecutor v Daniel [2003] VUSC 15; Criminal Case No 049 of 2002 (9 April 2003)

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

CRIMINAL CASE No. 49 of 2002

PUBLIC PROSECUTOR

-v-

GILLES DANIEL

Coram: Chief Justice Vincent Lunabek

Counsels: Mrs. Heather Lini Leo, the Public Prosecutor
Mr. Robert Sugden for the Defendant

JUDGMENT

This is the judgment in this case. The defendant Gilles Daniel, is charged and pleaded not guilty to the following offences:

In Count 1: Failure to comply with a term or condition under Permit, contrary to Section 22(1)(k) of the Immigration Act [CAP. 66].

The particulars are that Gilles Daniel is a French citizen residing in Vanuatu, on 30 July 2000, he breached a term of his permit when he failed to renew his residency permit.

In Count 2: Illegal resident contrary to Sections 16 and 22(1)(i) of the Immigration Act [CAP. 66].

It particularised that Gilles Daniel, on the expiry of his residency permit and on his failure to renew that permit, he has unlawfully resided in Vanuatu since 30 July 2000.

In Count 3: Attempting to invest in Vanuatu without approval certificate, contrary to Section 5(1) of the Foreign Investment Act No. 15 of 1998 (as amended) and Section 28 of the Penal Code Act [CAP. 135].

The particulars are that Gilles Daniel is a French citizen residing in Vanuatu, sometimes between October 11, 2001 and August 29, 2002 he attempted to invest in Vanuatu without an approval certificate issued by the Vanuatu Investment Authority.

In Count 4: Purporting to invest without first obtaining a certificate of approval contrary to Section 5(1) of the Foreign Investment Act No. 15 of 1998 (as amended).

The prosecution case is that the defendant, Gilles Daniel, is a French citizen. He had arrived and lived in Vanuatu since 1995. The prosecution says that since 30 July 2000, the defendant has been unlawfully, or has breached a term of the residency permit. It is, then, alleged by the prosecution that because the defendant failed to renew his residency permit on 30 July 2000, the defendant was unlawfully residing in Vanuatu.

Further it is said by the prosecution that while the defendant is in Vanuatu, he has been conducting some investment which the certificate of approval from the relevant authorities has not been obtained/approved by the Vanuatu Investment Board Authority (V.I.B.A). The defendant is alleged to invest in Vanuatu without the approval certificate.

The prosecution has called 5 witnesses.

At the end of the prosecution case, the defence counsel made an application of a no case submission. After brief adjournment and consideration, the Court ruled that there is a prima facie case made out against the defendant on each of the 4 counts. The defendant, Gilles Daniel, was required to call for his defence.

The defendant is informed about his rights under Section 88 of the Criminal Procedure Code which is read out to him.

The defence case is that the alleged breach of a term or a condition of his residency permit by the defendant was never a condition of the permit under the alleged offending section in Count 1. As to the defence of Count 2, the defendant concedes that he did not renew his permit. The defendant’s position is that he wishes to leave Vanuatu. The defendant says, he came to Vanuatu to make a living for his family. He has some problems in Vanuatu and to clear them, he had renew his residency permit. In the year 2000, his wife was ill and went to Paris for treatment. The defendant wanted to take his family to be with his wife and support her. It is said, further, that because his passport was withheld by Orders of the Court in 1996 and also because it is not voluntary, the defendant ceased to renew his residency permit.

It I also said that when the defendant renewed his residency permit, he still wishes to sort out the financial problems he has in Vanuatu but the illness of his wife takes precedence over his wish to stay.

The defendant gave evidence on his own behalf.

This is a criminal trial. The law is for the prosecution to prove each and all essential elements of the offences charged against the defendant in the required criminal standard of proof which is beyond reasonable doubt. The defendant exercises his right to give evidence. I must assess his evidence on the same way as any witnesses of the prosecution. If at the end of the case, I am left with a doubt and the doubt is a reasonable doubt, I must apply the doubt to the benefit of the defendant.

During the final submissions, the Public Prosecution informed the Court that upon assessing the prosecution’s evidence in the case, the prosecution fails to prove on the required criminal standard of proof, the offences as charged in Count 3 and 4:

- Attempting to Invest in Vanuatu without approval certificate, contrary to section 5(1) of the Foreign Investment Act No. 15 of 1998 (as amended) and section 28 of the Penal Code Act [CAP. 135]; and

- Purporting to invest without first obtaining a certificate of approval, contrary to section 5(1) of the Foreign Investment Act No. 15 of 1998 (as amended).

The offences as charged in Counts 3 and 4 are therefore dismissed against the defendant, Gilles Daniel.

The only outstanding offence against the defendant for consideration and verdict are the two (2) offences as charged in counts 1 and 2, respectively:

- Fail to comply with a term or condition under the residency permit, contrary to section 22(1)(k) of the Immigration Act [CAP. 66]; and

- Illegal resident, contrary to section 16 and section 22(1)(i) of the Immigration Act [CAP. 61].

For the defendant to be found guilty, the prosecution must prove each and all essential elements of the offices as set out below:

In Count 1:

1. THAT the defendant is a non-citizen of Vanuatu.
2. The defendant enters and resides in Vanuatu and a residency permit has been granted to him.
3. TGAT term and conditions of the residency permit that it will be expired on a specific date unless it is renewed before that date (of expiry).
4. That the defendant fails to renew his residency permit before the expiry date.

In Count 2:

1. The defendant is a non-citizen of Vanuatu.
2. A residency permit has been granted to the defendant.
3. The residency permit of the defendant has been expired.
4. The residency permit of the defendant has not been renewed.
5. The defendant is present in Vanuatu.
6. The defendant is not entitled to remain in Vanuatu under this Act.

Two (2) prosecution witnesses gave evidence in respect to Counts 1 and 2: The Principal Immigration Officer, Leslie Garae and Mrs. Eliane Tasavi.

In respect to Count 1:

I am satisfied beyond reasonable doubt that the prosecution has proved each and all essential elements of the offence as charged in Count 1.

In respect to Count 2:

The prosecution fails to prove that the presence of the defendant in Vanuatu is unlawful.

Verdicts

Count 1: The defendant Gilles Daniel is convicted and found guilty on the offence of Failure to Comply with a Term or Condition of the Residency Permit, contrary to Section 22(1)(k) of the Immigration Act [CAP. 66].

Count 2: Not guilty.
Count 3: Not guilty.
Count 4: Not guilty

DATED at PORT-VILA, this 9th DAY of APRIL 2003

BY THE COURT

Vincent LUNABEK

Chief Justice