There was listed for
this week�s session of the Court of Appeal an appeal by the Public
Prosecutor against the decision
of the Supreme Court sitting in Luganville
on 23 November 2001 discharging each of the seven respondents after they
were
all found guilty of a charge of witchcraft contrary to Section 151 of
the Penal Code Act [CAP.135], and Soter Malsoklei was found guilty of
intentional homicide contrary to Section 106(1) of the Penal Code Act, and
the other six respondents were found guilty of complicity to commit
intentional homicide contrary to Sections
30 and 106(1)(b) of the Penal Code
Act and all seven of the respondents were found guilty of rape contrary to
Section 90 of the Act.
The Judge said that he adopted
that position on sentence having regard to the fact that the respondents had
each been
more than twelve months in jail and on most occasions during which
they were on bail they had complied with its terms.
The appeal against
sentence was advanced on the basis that the trial Judge had erred in failing
to impose a reasonable
sentence on the defendants or had imposed a sentence
which was manifestly inadequate for the offences which had been committed.
At the call-over on Monda
were advised that there was to be an application for leave to appeal against
co conviction.
If leave were granted the conviction appeals must be heard
before any question about sentence is considered. In the circumstances
we
advised counsel that a leave application had to be heard this week and the
necessary documentation was duly filed.
We acknowledge the prompt and
comprehensive assistance which we have received from both counsel.
The grounds of appeal now
adv on behalf of each of the respondents are as follows:
1.&t;"> &nnsp;&&nsp;;&nspp;&nssp;&nsp;
That the ld tred trial Judge erred in law and in fact in holding that
Channel Soksok was involved when the Prtion ailedrove
that
such a practice does exist, and Chan Channel Snel Soksok is a confirmed and proven
spiritualist or established
clairvoyant or medium, who possessed such powers
to operate in the spiritual realm as he claimed himself to have experienced
this encounter with the appellants.
2. & &nnsp;&&nbp;;&nbp; &nbp; &nnbp;&
That that the learned trial Judge erred in n faito tato
ccoun evidcallethe defendants/appellants, and and even even if heif he
did did
very very inad inadequate consideration was given to the alibi evidence called by the
appellants.
3. &nnsp;&&nsp;;&nspp;&nssp;&nsp;   That the lear learned trial Judge erred in law in failing, and/or giving
sufficient weight to the un-rebutted alibi evidence
called by
defendants/appellants.
clasoNormtyle="text-iext-indentndent: -36: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
4. &&nsp;;&nspp;&nssp; &nbp;
span>
5. p;&nssp; p; &nbp; &nbp; ;
p That the lear learned trial Judge erred in law in applying the Principle
of Judicial Notice where he saidaragr of p2, that �In
this
case we see evidof the ritual that that becombecomes a es a covencovenant iant initiating
a person into the covenant
relationship with the mastermind�.
6. &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &n Than>The tria trial Judge erred in law in coring mstanevidence
of the Prosecution witnesses by placing very little weig weight
atht at all all on what
was said by the defendants/appellants as a proper application of the law on
all the facts and
circumstances of the case would already cast more than
sufficient doubt on the Judge�s mind therefore giving him reason to
acquit
the defendants/appellants at the earliest possible moment when he first had
the opportunity to dismiss the charges
and acquit the defendant/appellants
accordingly.
7. &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; &nb Than>The tria trial Judge erred in law in failing, and neglecting to warn
mselfhe faat shhe feat hebeing influenced by some
other personal knowledge edge whichwhich he m he might ight have have had, had, or already had of the
nature of the case
before him which would prevent him from applying his mind
fairly to the evidence before him and that having found that such
a bias
does exist, and/or would possibly more than likely does exist, then he
should consider disqualifying himself,
and let another Judge hear the case.
8. ;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp; &nbp;
Tia trudge erre erred in law in failing to take into account the
totality of the evidence before him and having failed to faipply
to the facts before him, had made it impossible for him to applyapply an
an
impartial mind to the facts and the
law before he arrived at a sound
decision.
9. &nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;&
p;
That in the circumstances tnvictwere against the weight of
the evidence before the Court.
<
It o be
acknowledged thad that there are serious and substantial issues which are raised.
These seven young men were convicted
of some of the most serious charges in
the criminal calendar. Having carefully perused the judgment we are unable
to
conclude that these are issues which are without substance or are in any
way trivial.
The application for leave to
appeal out of time is advancethe following grounds:
1. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
Thatdefe ce coce counsel was not able to contact nor receive
instructions from the defendants/appellants as they have left Santo
for
Malekula after having been discharged by His Lordshsticeak on 23rdrd sup>
November, 2001.
2. & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
p;
Thet thendefence counsel has not received instructions form the
defendants/appellants whether or not they do want to appeal
ag the sentor conviction.
<
3. ;&nspp;&nssp; p; &nbp; &nbp; Even ifdthe defendafendants/appellants were cont to co eit or Sathereo guae that the defendants/appellantllants cous could
ld
a affordfford the the fare fare to come to meet appellant counsel on the dates and times
when defence counsel was
on tour in Santo, as their travelling to Santo on
the first occasion was paid by the police.
4. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;
s There were was never any contact from the defendantellanr any insions e appt�s counsel that the judgment should be
be
appeaappealed.
>
5. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;
s The impe implications that would follow the prosecution�s appeal are quite
serious to such an extent that desthe fhat tare now
no
instructions from efendants/appellants to actuaactually llly lodge odge an apan appeal,
they would be deprived of
that right to justice should no appeal now be
filed, especially where the appeal would be allowed for the prosecution upon
an unchallenged conviction.
6. &nnbsp; &nnbsp; &nbp; &nbp; &n p;
The nature ofre of the case, and the manner ich tcts ae law havn mised in case would in any event warranarrant that that an t an
appeaappeal
l
ag againstainst conviction should be lodged, for the two reasons that:-
(a) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>upon the prosecutiocution appeal being upheld, where the appell
victi unchged
twouldevere penalties taking into
accountcount the the naturnature of e of each each countcount against each and every
defendants/appellants;
(b) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>tpat the Court cann cannot possibly deal with the sentence first wit
iderie natf
the and the grounds upon which the conviction
is is base based.
/p>
7. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Tpe defendants/appe/appellants have a genuine case based upon genuine
grounds
to be granted leave to lodge thisal outime.n>
8. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
Justouldwrequirequire that before the actual sentence is looked at,
that firgivennaturthe oes ch thatCourt must
first
look at and cons consider ider the gthe groundrounds upon which the conviction was basedbased,
,
considering this is the
first of its kind in this jurisdiction.
Ths no dispute
between ween counsel as to the requirement for appeals and an application for
extension of time which are
comprehensively dealt with in Section 200 and
Section 201 of the Criminal Procedure Code Act [CAP.135].
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Ms Forsyth fo original
appellant vigorously opposed the application for leave to appeal out of timf time
pointing to the
importance of having finality and submi that the
p problems raised on behalf of these seven young men are not sufficiently
out
of the ordinary to justify a deviation from the applicable rules.
Further she argued that there
is not enough sube in the issues that are suggested as appeal grounds
to justify an
extension of time.
We are of the clear view that in this somewhat unusual case justice demands that no action is taken which
could iuld impede
the proper and just resolution of all outstanding matters.
It is difficult at first blush
to understand how people convicted of rape murder and wiaft could be
felt to t to deserve
a term of imprisonment of nothing more than twelve months.
On its face that is inconsistent with previous sentences and the
maximum
penalties available on all these charges.
There is in the evidence as recorded in the judgment of the trial Judge a number of extraordinary
evidential asal assertions.
There is also a total absence in the reasons for
judgment of any discussion about matters which objectively from the outside
would have been thought to have been of particular importance.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
These seven men are at risk
that on the hearing of the appeal against nce they could face lengthyngthy
terms of imprisonment.
We are persuaded that it is
essential that the delays in case are assessed against the reality of
their positiosition
on Malekula, the fact that they are so distant from legal
advice and the human and natural reaction at having been convicted
and
discharged to just put the whole matter behind them. That leads us to
conclude that although it is always regrettable
when the procedural rules
are not properly complied with, the interest of justice demand, in this
case, that we grant
leave to appeal against conviction.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Leave is accgly granted to
each of the seven respondents. Their appeal against conviction will bell be heard
before the
Court of Appeal convened in Luganville on Monday 21st
October 2002 at 9.00AM.
<
Full submissions in support of
theal must be filed one month prior to that hearing date, Sub, Submission in
opposition
14 days before the appeal date. To the extent that is necessary
to advance the appeal, arrangements will have to be made for
the record of
evidence at trial to be available for the Court.
DATED at PORT-VILA, this 26th
DAY of APRIL, 2002
BY THE COURT
ass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
V. LUNABEK CJ
J.B. ROBERTSON Jn>
J. von DOUSSA J
D. FATIAKI J
R.OVENTRY J
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