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Reuben v Public Prosecutor [2003] VUSC 4; Criminal Appeal Case 037 of 2002 (14 January 2003)

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

Criminal Appeal Case No. 37 of 2002

PIERRE REUBEN & Others

Vs.

PUBLIC PROSECUTOR

Coram: Justice Roger J. COVENTRY

Counsels: Mr. Hillary Toa for the Appellant
Mr. ............... for the Public Prosecutor

JUDGMENT ON APPEAL

On 29th September 2001 the seven appellants were sentenced to prison by the Magistrate’s Court for terms ranging from 4 years 10 months to 6 years 2 months.

There are two groups of offences from two different dates.

1. The Store Offences CR 72/00 – (79/01) – Unlawful entry and theft. This involved the allegation that few defendants had entered a store and stolen from it.

2. The Rose Nandi Offences 78/01 – Criminal trespass, demanding money with menaces, assault, threats etc. This involved the allegation that all seven defendants boarded a boat to claim unpaid wages. They were a........., threats made and assaults took place.

The senior magistrate imposed sentences of 4 years for demanding money. This is clearly beyond his powers. He made all prison terms consecutive, which is wrong in principle for offence arising out of one incident. It might have been good in principle to make any concurrent sentences for each group of offences concurrent to each other.

The appellants also say the convictions should be quashed. They argue as follows:-

1. The Store Offences

These came before the Magistrate’s Court on 29th September 2000. Two defendants were present, two were absent. The record reads “ Charges explained – Plea not guilty ......generally. Cases withdrawn and close. Charges struck off against all defendants. Order accordingly”

When the Rose Nandi Offences came up the Store offences were put to the hour again. They pleaded not guilty. The senior magistrate found “the Court, having taken the plea from the accused each and severally is in its bundle opinion in a position to convict each of the accused as named. There seems to me that there is really no defence raised by any of the accuseds for their behaviour”. He then sentenced them to terms of imprisonment.

2. The Rose Nandi Offences.

The defendant pleaded not guilty to these. A trial was heard and they were convicted. They were then sentenced to the consecutive terms set out totalling the terms mentioned above.

The appellants argue that the Store Offences could not and should not have been brought again. Further there was a perception of bias for both acts of offences in that the Magistrate knew the complainant well, had been to his house and had helped with his son’s bride price. The appellants were ready to give evidence to this effect.

I will allow the appeal.

1. The Store Offences. Although the record is not entirely clear it would appear not guilty pleas were entered, charges were withdrawn and the matter was regarded as ended, “ charges struck off”. It is vital in criminal matters to ensure the record is marked as to whether a not guilty verdict is entered allowing no re-bringing of charges, or they withdrawn in circumstances when they can be brought again.

Further the defendants’ pleaded not guilty on the second hearing. There does not appear to have been a trial and judgment. The magistrate appears to have heard what each defendant had to say, decided it did not amount to a defence and entered guilty pleads. That is unacceptable. It is not clear why the defendants were giving an explanation. If was given which amounted to a full acceptance of the charge then this should have been noted together with what the magistrate said and his reasons.

The Store charges are quashed for each of these reasons. There can be no retrial in view of the first ground.

The Rose Nandi Offences

The respondent opposed this appeal. The Court raised the question about defects in the judgment eg. The failure to state the standard of proof, the failure to consider each defendant and each count separately, there were questions of identification which were dealt with in one sentence in appropriate remarks for a judgment were made (eg. Not ever one of the defendants has shewn any form of remorse).

The respondent agreed that such defects would be fatal to the convictions without reed to consider the points raised by the appellants.

The question therefore arises as to whether the Rose Nandi Offences should be returned for retrial.

The defendants have in fact spent five months in custody. A full reconciliation ceremony has taken place. They are of the same family as the complainants. Each defendant agrees to be bound over to keep the peace.

Accordingly I order as follows:-

1. Appeal allowed. All convictions quashed and sentences set aside.

2. Each appellant is Bond Over in the sum of Vt10,000 for 12 months to keep the peace and be of good behaviour.

3. No Order for costs.

Note. The sentences were manifestly beyond the powers of the magistrate to impose, see section 4 (10 (a) and 4 (4) Courts Act.

(Cap 122) which place a maximum of two years for a single offence and four years for two or more offences when sentencing consecutively.

Dated 14th January 2003

R.J. COVENTRY

Judge