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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT OF
THE REPUBLIC OF
VANUATU
(Criminal Jurisdiction)
CRIMINAL CASE No.20 OF 2007
PUBLIC PROSECUTOR
-v-
KELL WALKER
Coram: Chief Justice Vincent Lunabek
Counsel: Mr
Bernard Standish for the Public Prosecutor
Mr John Malcolm for the
Defendant
Hearing: 5 June 2007
Verdict: 11 June 2007
JUDGMENT
Introduction
This
is the judgment of the Defendant, Kell Walker, in this case. The Defendant, Kell
Walker, is charged with the offence of threats
to kill, contrary to Section 115
of the Penal Code Act [CAP.135].
It is the prosecution case that on or
about 31 January 2007, the Defendant, Kell Walker, an Australian citizen who
currently resides
in Port-Vila, Vanuatu, directly threatened to kill a Mr Glenn
Frazer at El Gecko Restaurant by saying they would cut his head off
and he was
paid to deliver fine power.
The Defendant denied the charge against him
and pleaded not guilty to it. The trial proceeded on this
basis.
Direction on
law
Section 115 of the Penal Code Act is the offending section. It
provides:
"115. No person shall, knowing the contents thereof, directly or indirectly, cause any person to receive any oral or written threats to kill any person.
..."
This is a criminal trial. As in every criminal
trial, the law is that the prosecution has the duty to prove each and all
essential
elements of the offence beyond a reasonable doubt against the
Defendant. The Defendant is not required to prove his innocence. If
the
Defendant has to give evidence or call other person to give evidence on his
behalf, I must consider his evidence and the evidence
of his witness on equal
basis as any evidence of the prosecution.
In this case, the Defendant
elects to give evidence on his own behalf. However, the onus or burden of
proving guilt of the accused
person beyond a reasonable doubt rests upon the
prosecution and it never shifts. The prosecution must prove beyond reasonable
doubt
that the accused person is guilty of the offence which he is charged
before he can be convicted. If I have a doubt and the doubt
is a reasonable
doubt as to whether the accused committed the offence of threat to kill as
alleged, it is my duty to give the accused
the benefit of the doubt and to find
him not guilty on the charge.
Proof beyond a reasonable doubt has been
achieved when I as a Judge of fact feel sure of the guilt of the accused. It is
that degree
of proof which convinces the mind and satisfies the conscience so
that I as a conscientious Judge of fact feel bound or impelled
to act upon it.
Conversely, when the evidence I have heard leave me as a responsible Judge of
fact with some lingering or nagging
doubt with respect to the proof of some
essential elements of the offence with which the accused is charged so that I am
unable to
say to myself that the prosecution has proven the guilt of the accused
beyond a reasonable doubt as I have defined these words, then,
it is my duty to
acquit the accused. If I believe the accused and he did not commit the offence
or what he did lacks some essential
elements of the offence or if the evidence
of the accused either standing alone or taking together with all of the other
evidence
leave me in a state of reasonable doubt I must acquit him. But if upon
consideration of all of the evidence taken together at the
end of trial, the
arguments of counsel and the charge, I am satisfied beyond a reasonable doubt as
I have defined these words above,
it is my duty to convict the accused. I must
say that it is rarely possible to prove anything with absolute certainty. So the
proof
or the burden of proof on the prosecution is only to prove guilt beyond a
reasonable doubt. When I speak of reasonable doubt I use
the words in their
ordinary natural meaning, not as a legal term having some special connotation. A
reasonable doubt is an honest
and fair doubt based on reason and common sense.
It is a real doubt, not an imaginary or fanciful doubt which might be conceived
by an irresponsible judge of fact to avoid his or her plain duty. This is
emphasized by Section 8 of the Penal Code Act [CAP.135] in these terms:-
"8.(1) No person shall be convicted of any criminal offence unless the prosecution shall prove his guilt according to the law beyond reasonable by means of evidence properly admitted; the determination of proof of guilt beyond reasonable doubt shall exclude consideration of any possibility which is merely fanciful or frivolous.
(2) In determining whether a person has committed a criminal offence, the Court shall consider the particular circumstances of the case and shall not be legally bound to infer that he intended or foresaw the natural or probable consequences of his action.
(3) If the prosecution has not proved the guilt of the accused, he shall be deemed to be innocent of the charge and shall be acquitted forthwith."
Summary
of Evidence
The records of the evidence are contained in the notes
of evidence and in the court file (which are not destroyed by the fire on 7
June
2007). What I propose to do is a summary of evidence. The trial is a short one
and is on a very narrow issue whish is:
Did the Defendant, Kell Walker,
threatened Glenn Fraser on 31 January 2007 at El Gecko Restaurant by saying they
are going to cut
his head off?
The background leading to the alleged
incident and subsequent events are relevant. The following facts are agreed
between the prosecution
and the defence:
(1) A meeting took place at El Gecko Restaurant Café between the complainant Glenn Frazer and the accused Kell Walker. There were other people there but they were not privy to the conversation between the complainant and the accused.
(2) On 1 or 2 February 2007, a second meeting between the complainant Frazer and the accused Walker took place at Number 1 Café on proximity of others who are not privy to the conversation.
(3) The statement of Robert Lofting dated 24 May 2007 and that of Allen Musica dated 14 February 2007 can be admitted by consent without cross-examination on the basis that they are evidence of the meetings but not corroboration of what was said.
The evidence of the prosecution is
given by the complainant Glenn Frazer and Allen Bani, a police Inspector of
Transnational Crime.
Frazer gave evidence to the effect that a Mrs Naylor called
him to attend a meeting at El Gecko on 31 January 2007 at 10.30AM. When
he
arrived, Naylor and Tartar were there. Naylor introduced herself. Then the
accused, Kell Walker arrived with a person he now knows
as Robert
Lofting.
Naylor and Tartar walked away. Walker and his companion sat with
him. Mr Lofting sat at the end of the table. The accused started
the
conversation by talking about the type of cigars the complainant
smokes.
The accused then asked the complainant whether he knew anything
about his boat Retriever 1. He said he told the accused that Retriever
1 was ran
by Michael Hatcher. The boat came from Adelaide to Fiji and then Vanuatu.
Michael Hatcher is a salvage business person.
He is based in Singapore and
Australia. The Japanese own the boat. He said the accused asked him who are the
Japanese. He said initially
the accused was friendly and then he changed the
tone when he raised the topic about the Japanese. This witness said he felt very
frightening. He said the accused said the Japanese were very unhappy about what
happened. The Japanese want their money back. He
said he disclosed the facts
about M. Clare. He said the accused told him that something went wrong with the
money paid by the Japanese
in a company (ISSI). The accused told him Clare had
40 million dollars. He said he told the accused that this was a bullshit.
Michael
Hatcher was a liar. This witness said to his knowledge, he introduced
Clare to the Japanese investors. He said the conversation was
also on matters
before the Court in Queensland, Australia. The accused told him they should take
care of Michael Hatcher because
Hatcher has also interest in the company. He
said the accused told him that he brought fire guns in Vanuatu and if he had not
the
trouble with Peter Foster he (the witness) would be dead already. The
witness said he did not know who Peter Foster was. He knew
Foster through media.
The accused had been in Vanuatu for 12 months. He said the accused would take
picture of him and he was going
to be an example for Clare. He said, the accused
told him the Japanese lost confidence. They need their money back. He said he
was
scared. That was the first time he met the accused.
He said the
accused said that the Court case in Singapore involved Clare and Clare had no
contest. Clare must negotiate the return
of money. The witness said he knew
about the Court case in Singapore. It was about a boat arrested in Singapore. He
said the accused
said he (witness) would have to act or they would fly someone
here. He said as the accused was leaving, he asked him if he was going
to die
and he said the accused told him: "they were going to cut your fucking head
off". He said he was terrified. The accused told
Lofting to pay the bill for the
coffee.
Further before the accused left, the witness said they are
tapping his telephones and he said he had proof of what he said. The accused
left towards Number 1 Café. The witness said he went to his car and was
scared so he went towards the accused and asked him
about the proof of what the
accused told him. He said the Accused told him that he will come back to him on
that.
Further, on the same day, he got a telephone call from Walker to
meet him. The accused told him he has nothing to worry about and
6 months before
anything to happen. The accused asked to meet him at the boat at 6.00
o’clock. He said he did not meet the
accused at 6.00 o’clock. He
said he phoned Clare and they both agreed it was not a good idea. The accused
met with the witness
at Number 1 Café. Walker met him there and he was
carrying a yellow plastic bag. The accused came with Lofting. Lofting sat
at a
table away. He said the Defendant dropped the documents contained in the yellow
plastic bag to his legs. The documents contained
a picture of himself (witness),
the telephone records of the witness and Clare, some pages taken out of the
telephone Directory Book
in New Zealand of Clare. Telephone bills of Mrs Clare
in Singapore, his (this witness) telephone bills in Singapore Hotel, a map
of
Napier where Clare house is; where his parents live; a picture of Clare’s
lawyer; paper on the court case between the Japanese,
Michael Hatcher and
Clare.
He discussed the situation with Clare who left Vanuatu. The
witness said he set up security guard around his house for a short period
of
time as he has no fund to maintain and arrange the security around his residence
and family He filed a written complaint to the
police the next day the threats
occurred.
Mr Frazer was cross-examined. He confirmed he had a meeting
with the accused at El Gecko Restaurant on 31 January 2007. He confirmed
he had
a phone call from Ms Naylor about the meeting with the accused at the request of
the accused. He said he discussed the phone
call with Mr Clare. Clare and he
discussed and agreed he might go and see the accused. He said he had a share of
2 million dollars.
Lawrence Philips got 17 millions; Michael Hatcher 5 million
dollars. The witness clarified that the court case in Singapore has nothing
to
do with the case in Australian Courts. The case in Singapore is about the loss
of a boat. He said he was asked to mediate and
he got 2 million dollars 2 years
before he come to Vanuatu. He got 2 millions by buying shares into Michael
Hatcher’s company.
It was put to him that there was no threat to
him by the accused Kell Walker on 31 January 2007 as he alleged. He said if Mr
Walker
will say that in his evidence, he will be lying to the Court. The witness
confirmed that he was shock. He was not calm. He was fear
for his life. He was
afraid. He had Robert Lofting sitting in the back as a body guard. He said Kell
Walker spoke in strong words
but did not raise his voice. He confirmed that
Walker told him they will cut his (#) head off. He said the accused was leaning
to
his face when he said "they were going to cut your fucking head off". He
confirmed Walker talked about transferred of shares in Australia.
He confirmed
Walker told him they took fire power guns in Vanuatu and someone is going to be
flying-in in 6 months time. He confirmed
he discussed the threat by the accused
with Mr Clare. He confirmed he and Clare went to the police the next day and
lodged the complaint
against the accused.
He said he then took recording
of what was said in the second meeting. He said he took notes of meeting in the
second meeting. He
was fear of his life. He said the notes are with the
prosecution. He confirmed a page of notes shown to him to be notes he took of
the meeting but he confirmed and mentioned that the threats occurred at El Gecko
Restaurant. There was no threat in the second meeting
at Number 1 Café.
He said the Courts said there was no problem with the sale of shares and the
Courts in New Zealand said
that there was no case.
Police Inspector Allen
Bani gave evidence that he is the Officer in charge of Transnational Crime. He
investigated in this case. He
was involved when he was approached to talk to
Frazer and Clare. He had received a phone call from MP Moana Carcasses about
5.15PM
saying he will see two (2) expatriates from New Zealand and
Australia.
He had a meeting with Frazer and Clare. He then said he sent
someone to take their statements. He said Frazer gave him a bundle of
documents.
The documents were sent to Australia for finger print test. The documents
contained the finger prints of the accused,
Kell Walker.
He confirmed
Frazer gave him a digital audio of the conversation taken at the second meeting
at Number 1 Café. The conversation
in the tape was between Frazer and
Walker. The discussions were about some money and something. The quality was not
so good. He sent
it to Australia. The conversation was put into a CD and was in
the file he provided. He said in the tape, there was no threat coming
out in the
CD. He confirmed Frazer spoke to him about threats.
Police officer Bani
was cross-examined. He confirmed some of the documents tested have the finger
prints of the accused Kell Walker.
There was no threats of the second meeting
but from the start of conversation, Glenn Frazer was shaky. He confirmed Frazer
gave him
notes of meeting, the yellow plastic bag and the notes of conversation
taken.
The Defendant gave evidence. He accepted he had 2 meetings with Mr
Frazer. He said he is a salvage master and he is the master of
the vessel
Retriever 1. He arrived at Port-Vila on 8 January 2007 on board the vessel
Retriever 1 and the vessel was under his command.
He met Frazer at El Gecko on
31 January 2007 at his request. He did not meet Frazer before to that meeting.
The meeting started with
some talk over cigars they smoke. He said prior to the
meeting, he was informed by Ms Naylor that she was contacted by Frazer that
there were numerous discussions about Retriever 1 and why Retriever 1 was in
Port-Vila. He said he was informed that Frazer stated
that they were involved in
salvage operation he was previously involved in. He said he asked Frazer about
the ship in Melbourne and
his interest about the ship. He said Frazer discussed
with him that the Japanese were funding the ship that Michael Hatcher was
involved
in the salvage project. He said he did so as a fishing exercise to find
out what Frazer knew about ships on the Japanese and everyone
else.
He
said he went on to discuss the case that was before the High Court in Singapore
in admiralty jurisdiction on information supplied
by Glenn Frazer.
He
said he went on to discuss the issues in respect of the ship and he said he
stated to Frazer that they wished to negotiate a settlement
in respect to the
ship. He said the ship was sold by the Sheriff in Singapore. The amount was in
excess of 60,000,000 US$. He said
he went on to discuss the matter in great
detail. He said he suggested to Frazer that the matter should be settled out of
Court.
The money paid for the ship to Frazer was 2,000,000$ and 40,000,000$ to
Clare. These matters in Singapore should be negotiated and
settled out of Court
as the money was obtained by Frazer and Clare from the Japanese by shares in
Fruitless Company. He said he sought
to settle the claim in Court in Singapore
by consent and without admission to liability. He said he told Frazer that he
should make
some restitution from the money of 2,000,000$. He said it was a
fraud activity and the Japanese wanted their money back.
He said he did
not threaten Frazer. He denied making threat to Frazer to cut his head off. He
said Frazer did not take any notes during
the meetings. He said he arranged for
another meeting with Frazer while Mr Lofting was present. He made two phone
calls to Frazer
asking Frazer to discuss further and another meeting asking what
the decision was. Frazer did not tell him what his decision was.
The
accused Kell Walker was cross-examined. He said the meeting at El Gecko was
arranged at his request. He had meeting with Frazer
because Frazer discussed on
numerous occasions about Retriever 1. He admitted he was in Vanuatu 12 months
before. He said he was
asked to make investigation about Clare and Frazer. He
said he is not a private investigation but the money taken from the Japanese
were involved in salvage activity in Indonesia. He said Clare and Frazer took
the money for their own benefit. The money did not
belong to them but to them
(accused, Hatcher and the Japanese).
He said Frazer owed him money. He
gave evidence that he was involved in salvage operation. He was an interested
party in the case
before the Court in Singapore. He purchase Retriever 1 and
carried 9 months work on the boat. They were seeking to recover the funds
Frazer
took from the Japanese and others. He admitted he has no share in the company
Frazer took the money.
He denied he needed to have money on behalf of the
Michael Hatcher. He said the case in Singapore was about the arrest of a boat in
Singapour. He said neither Frazer nor Clare were parties to the case.
He
recognized the bundle of documents tendered to him. He admitted he handled the
documents to Frazer at Number 1 Café on 2
February 2007. He denied Frazer
and Clare were parties to the action in Singapore. He said Clare was the
Director of the Company
Ultramarine Holdings Limited.
He denied he come
to Vanuatu to see Frazer. He said the only reason that Frazer come into picture
was because Ms Naylor told him about
Frazer so he saw him in the meeting. He
denied that he had threatened Frazer and Clare.
He admitted he is not a
party to the action before the Courts in Singapore. He said Hatcher is a party.
Hatcher is employing him and
he purchased the Retriever 1. He has a contract of
employment by Hatcher. He denied he come to Vanuatu to put his headings on Clare
and Frazer. He said proceedings in Singapore are continuing. The Japanese paid
in excess of 60 million dollars. Clare received 40
million dollars. Frazer 2
million dollars and others in New Zealand and Australia received 7-8 million
dollars and are subject to
further charges by the police.
He denied
Hatcher’s company had a shortfall in fund. They seek to recover the
money.
He admitted that on the previous 12 months he came to Vanuatu to
conduct an investigation on Frazer and Clare. He said he was looking
at what
properties and assets Frazer and Clare have bought. He admitted he took
photographs, phone bills and addresses of Clare and
Frazer as part of due
diligence operation which he carried out.
He admitted he knew that Clare
and Frazer were legally represented in Singapore case. He said he is a
beneficiary of the money taken
by Frazer and Clare. He came to Vanuatu to settle
the dispute.
He denied he was instructed. He admitted during the meeting
Lofting was there. He is a member of his crew. He said there was no shouting,
no
voice raising at the first meeting. He did not threaten somebody in a public
place. There were Federal Police there. He said Lofting
was privy to the
conversation but did not participate in the meeting.
He denied he told
Lofting to have a look out during his meeting with Mr Frazer at El Gecko and
Number 1 Café. He denied he
gave the documents to Frazer in order to
intimidate him. He finally admitted that he is not a party to the case at
Singapore. He
denied the money affected him personally. He said he told Frazer
that the Japanese are losing face.
He denied he told Frazer that he
brought five points guns. He denied he told Frazer to be an example for Clare.
He said Frazer was
nervous about the meeting before the meeting started. He
denied he told Frazer that they will cut his head off.
He admitted Frazer
came to him after he walked to Number 1 Café. He admitted Frazer asked
him for proof o what he (the witness)
said in the meeting at El Gecko. He
conceded that this led to organize the second meeting and he brought the
documents. He conceded
he called him by phone. He suggested to him to come on
the slip but he met Frazer at Number 1 Café. He said he left the yellow
plastic bag to Frazer.
Discussions:
Findings and Credibility
The evidence establishes the
following:-
Mr Glenn Frazer was invited to a meeting at El Gecko by Ms
Naylor. Naylor did arrange the meeting at El Gecko on 31 January 2007 at
the
request of the accused. The accused did attend the meeting at El Gecko on 31
January 2007 in the morning.
At El Gecko, I find that the conversation
took place between the accused, Kell Walker and Frazer. Mr Robert Lofting was
sitting at
the side of the table and did not take part in the conversation. I
find that Lofting was there at the instruction of the accused
to be on the look
out for and report to the accused any persons he may observe who might be taking
particular interest in the meeting
as shown in the sworn statement of Lofting
which was put into evidence by consent of the prosecution and the
defence.
On the basis of the evidence that I have heard and upon
consideration, assessment and the demeanor of the witnesses, I find that Frazer
is a reliable witness. I accept the evidence of the prosecution witness Glenn
Frazer, that the accused Kell Walker, did threaten
Frazer at El Gecko in their
meeting of 31 January 2007 and I reject the version of the facts given by the
Defendant, Kell Walker.
I find Kell Walker is evasive and non-responsible in his
answers to the questions. The accused took a lengthy time to admit that
he is
not a party to the action in the Courts in Singapore despite the fact that on
the face of the documents he gave Frazer on the
second meeting at Number 1
Café, he is not a party to the court case in Singapour and on inference
the accused must have known
this as a matter of fact.
The accused has a
contract of employment with Michael Hatcher. I find that the accused came to
Vanuatu to see Frazer and Clare. This
is supported by the fact that the accused
Walker did come to Vanuatu during the 12 previous months where Frazer and Clare
were both
living in Vanuatu with their families. During those 12 months, the
accused Walker took photographs of Frazer and Clare, their families,
their
addresses and the telephone numbers and telephone bills accounts including their
residence as part of a due diligence or surveillance.
I find it difficult
to accept that conducting surveillance on people, their phone calls; finding out
where people’s family live
in a Foreign country is party of a salvage
master’s activity.
The accused accepted that if one of the parties
is successful in the case before the courts in Singapore he would get some
money.
It is a fact that if a threat is made, the impact on the person by
his voice is important and will be taken seriously. I accept Frazer’s
evidence that he was frightened despite the fact that the accused did not raise
his voice during the threat and subsequently, took
steps to protect his
residence and family.
It is an accepted fact that, Kell Walker told
Frazer at El Gecko that he did bring in Vanuatu five power guns and that if it
had not
the trouble of Peter Foster, he would already be dead. It is also a fact
that Frazer took steps to get what Walker knew. On the second
meeting at Number
1 Café, Frazer took notes. He reported the matter to the police on the
same day.
I find there are overwhelming evidence against the accused,
Kell Walker.
I am satisfied on beyond reasonable doubt that the accused,
Kell Walker threatened to kill Glenn Frazer on 31 January 2007 at El Gecko
by
saying that they were going to cut his # head
off.
Verdict
I find the
Defendant guilty on the charge of threats to kill a person, contrary to Section
115 of the Penal Code Act [CAP.135] on the criminal standard of beyond
reasonable doubt. The cases of Dudley Aru (complainant) v. Arripaea Mare Salmon
(Defendant), Criminal Case No.13 of 1998, which was referred to the Court by the
Defence, must be distinguished on facts.
The submissions on sentence are
scheduled for hearing on Wednesday 13 June 2007 at
3.00PM.
DATED at Port-Vila this 12th
day of June 2007
BY THE COURT
Vincent
LUNABEK
Chief Justice
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