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Public Prosecutor v Issachar [1994] VULawRp 6; [1980-1994] Van LR 742 (18 July 1994)

[1980-1994] Van LR 742

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Criminal Appeal No. 5 of 1994

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

HOLLINGSON ISSACHAAR
Respondent

Coram: C. Vaudin d'Imecourt C.J

JUDGMENT

[CRIMINAL LAW - Committal Proceedings - obligation to give reasons for refusing to commit]

In this matter the prosecution seek leave to Appeal out of time against the refusal by the learned magistrate, Mr Jimmy Garae, to give reasons when refusing to commit the Respondent for trial following a preliminary enquiry pursuant to Section 145 of the Criminal Procedure Code [CAP 136].

The Respondent although served fails to appear. Mr Baxter-Wright (the Public Prosecutor) submits that the Court should hear the Appeal in the absence of the Respondent upon the basis that whatever the outcome of the Appeal it will not affect the Respondent's position and he undertakes not to revive this prosecution as against the Respondent in any event. He submits that this Appeal is based on a point of law of general importance as to whether or not reasons should be given when a magistrate decides not to commit a person to stand his trial before the Supreme Court.

Upon Mr Baxter-Wright's undertaking, leave is hereby granted to appeal out of time.

There are two grounds of Appeal, namely that:

(i) The learned magistrate erred in law in failing to give reasons for his decision that there was no case to answer;
(ii) The learned magistrate misunderstood the case of Public Prosecutor v Michael Meraka [Appeal No. 7 of 1992]

Mr Baxter-Wright submits that it is wrong in law for the learned Magistrate to refuse to give reasons when refusing to commit a defendant for trial on the basis that it puts both the defendant and the prosecution in an impossible position in that they would not know whether the Magistrate had reached his decision on proper grounds. He submits that this is unfair to both parties.

Committal proceedings in Vanuatu are governed by section 143 to 146 of CAP 136, and more precisely for the purposes of this appeal by sections 145(2) and 146(1). Section 145(2) states:

"The senior magistrate shall decide whether the material presented to him discloses, if the same be not discredited, a prima facie case against the intended accused requiring that he be committed to the Supreme Court for trial upon information."

Section 146(1) states:

"The senior magistrate shall record his decision in writing and deliver copies to the prosecutor and the intended accused. The decision shall show clearly that the senior magistrate either authorises or does not authorise the laying of the proposed information against the intended accused. If the information is so authorised, a copy of the decision shall be sent by the senior magistrate to the nearest registry of the Supreme Court."

The law of Vanuatu therefore requires two things of a magistrate, (i) that he decides whether there be a prima facie or not to commit for trial, and (ii) that he should give his decision in writing showing clearly whether he authorises or does not authorise the laying of an information. He then has the obligation to serve that decision on the prosecution and the accused. What the statute does not require him to do is to give reasons for his decision.

He may well write his decision as follows "having considered the whole of the evidence in this case I have come to the conclusion that the prosecution has not disclosed a prima facie case to commit this defendant for trial. I therefore refuse the laying of the proposed information herein." That in my view would satisfy the strict wording of the law. Mr Baxter-Wright submits that this would be unfair both to the defendant and the prosecution because it would not disclose the working of the mind of the learned magistrate who could well be acting capriciously. As far as the defendant is concerned, he of course, suffers no prejudice at all since he is not going to be tried. As for the prosecution, Mr Baxter-Wright further submits that such a decision would deprive them of a right to appeal because they would not be in a position to know whether the learned magistrate had erred in law or not or whether or not he had properly considered all the facts before him. I find no force in that submission for two reasons. Firstly, if the learned magistrate refuses to commit in a case where clearly there is a prima facie case, the prosecution will know that straight away and could appeal on that ground; secondly a defendant is not acquitted when a magistrate fails to commit. The prosecution has a further opportunity to find more evidence upon which to bring him before the magistrate upon which he could then be committed to stand his trial. So no injustice will be caused. In the rare cases where the evidence is so discredited before the learned magistrate that he refuses to commit, he will say so, for that is common sense, and magistrates must always adopt the common sense approach in these circumstances. It must at all times be remembered that a committing magistrate is not trying a defendant. All that the law requires of him is to assess the evidence and to decide whether there is a prima facie case upon which a defendant should be tried or not. He is not called upon to ask himself "if I were the tribunal of fact would I convict this defendant or not". Under the law all he needs to ask himself is: "upon the evidence that I have heard has the prosecution shown that there is a prima facie case for the defendant to answer." If so the defendant ought to be committed to stand his trial; if not the learned magistrate should refuse to commit.

Although there is no obligation under the law placed upon a magistrate to state his reasons when committing or when refusing to commit a defendant to stand his trial, there is also nothing to prevent him from doing so and in some circumstances, common sense may dictate that in the interest of justice and in the public interest he should state his reasons for his decision.

On the second ground of this Appeal, namely that the learned magistrate erred in basing his decision not to state his reasons for refusing to commit upon the decision of this Court in Public Prosecutor v Michael Meraka [Appeal No. 7 of 1992], I need not spend much time. The decision in that case had nothing to do with whether or not a magistrate should give reasons when hearing a preliminary inquiry. But the prosecution cannot succeed on that ground alone.

For the reasons I have stated above, this Appeal is dismissed.

Delivered at Port Vila on 18th day of July 1994

CHARLES VAUDIN D'IMECOURT
CHIEF JUSTICE