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Public Prosecutor v Vohor [2004] VUSC 37; Criminal Case 033 of 2004 (17 September 2004)

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

Criminal Case No. 33 of 2004

PUBLIC PROSECUTOR

-v-

RIALUTH SERGE VOHOR

Coram: Mr. Justice H. Bulu

Mr. John William Timakata for the Public Prosecutor
Messrs. Willie Daniel, Ronald Warsal and Samson Endehipa for the Defendant

Hearing Date: 17 September 2004.
Judgment Date: 17 September 2004.

DECISION ON APPLICATION TO STAY PROCEEDINGS

INTRODUCTION

1. On 27 August 2004, Vincent Lunabek, Chief Justice of the Republic of Vanuatu ordered in Civil Case No. 154 of 2004 at paragraph 8 as follows:-
   

“The Clerk of the Parliament be directed to immediately after the issuance of these orders to summon Parliament to meet on the said Wednesday 1^st September 2004 at half past eight o’clock in the morning for Parliament to continue and complete its debate on the said Motion of no confidence in the Prime Minister.”

2. In compliance with the Order Parliament was summoned on Wednesday 1 September 2004 for purposes of debating the Motion of no confidence. The proceedings were nationally televised.
   
3. During the debate on the floor of Parliament on September 1, 2004 the Defendant, the Hon. Serge Vohor, Prosecution submitted, made comments in relation to the Court decision requiring the Parliament to sit and debate concerning the motion that the Chief Justice was:-
   
   • (a) acting for foreign interests in Vanuatu;
     
   • (b) had black skin but white heart;
     
   • (c) was the child of a white man “pikinini blong whiteman”.
     
4. On 11^th September, 2004 the Public Prosecutor applied for committal orders to commit the defendant to prison. The Public Prosecutor submitted that the statements made on 1^st September 2004 amounted to serious criminal contempt, in that the statements amounted to scandalizing of the Supreme Court in particular the Chief Justice and was calculated to impair the confidence of the people of the Republic of Vanuatu in the Court’s judgment and the authority and influence of the judicial determination.
   
5. The Public Prosecutor had charged the Defendant for contempt pursuant to section 32 of the Judicial Services and Courts Act No. 54 of 2000 and applied for Committal Orders pursuant to section 28 and 32 of the Judicial Services and Courts Act and section 82 (3) of the Penal Code [CAP. 135] and the inherent powers of the Supreme Court of the Republic of Vanuatu.
   
6. The Prosecution said it is a serious contempt which is prosecuted in order to maintain the integrity and confidence in the proper administration of the Judiciary’s function.
   

ISSUE

7. The issue to be determined is whether there has been any actionable contempt by the Defendant by his making criticisms of the Chief Justice at the extraordinary session of Parliament. There are two parts to the issue. They are:-
   
   • Were the statements made by Hon. Serge Vohor capable of being found to constitute a “contempt”; and
     
   • Does article 27 (1) of the Constitution protect Hon. Serge Vohor from prosecutions;
     
8. The Court first sat on Saturday 11^th September, 2004 in the afternoon to hear the application by the Public Prosecutor. It made orders to the following effect:-
   

“HAVING READ the applications by the Public Prosecutor, sworn statement of Mrs. Kayleen Tavoa and sworn statement of urgency by John W. Timakata, the Deputy Pubic Prosecutor; and

HAVING SEEN the video tape of the speech by the Honourable Rialuth Serge Vohor made on the floor of Parliament on 1^st of September 2004; and

HAVING HEARD John W. Timakata on behalf of the Public Prosecutor and Sampson Endehipa, the Attorney General on behalf of the defendant, the Court is satisfied that:-

(a) There is an urgency to deal with this matter;

(b) The statements made by Honourable Rialuth Serge Vohor, the Prime Minister of Vanuatu, during debate in Parliament on September 1, 2004 relating to the Court decision requiring Parliament to sit and debate the motion of no-confidence in the Prime Minister, constitutes the offence of contempt.

(c) Article 27 (1) of the Constitution does not protect the Honourable Rialuth Serge Vohor, the Prime Minister of the Republic of Vanuatu, from prosecution;

The Court makes the following orders:-

1. The Respondent, the Honourable Rialuth Serge Vohor, is to be arrested by members of the Police Force of the Republic of Vanuatu immediately upon his arrival at the Bauerfield International Airport from an International visit and is to be brought before the Supreme Court to show cause why he should not be committed for Contempt.
   
2. Costs of this application in favour of the Public Prosecutor.”
   
9. On Sunday 12^th September, 2004 the Court sat again in the afternoon to hear counsels on the application to vary the orders of 11^th September 2004. The variation order now reads:-
   

“HAVING READ the Applications by the Public Prosecutor, sworn statement of Mrs. Kayleen Tavoa and sworn statement of urgency by John W. Timakata, the Deputy Public Prosecutor; and

HAVING SEEN the video tape of the speech by the Honourable Rialuth Serge Vohor made on the floor of Parliament on 1^st of September 2004; and

HAVING HEARD John W. Timakata on behalf of the Public Prosecutor and Sampson Endehipa, the Attorney General on behalf of the defendant, the Court is satisfied that:-

(a) There is an urgency to deal with this matter;
(b) The statements made by Honourable Rialuth Serge Vohor, the Prime Minister of Vanuatu, during debate in Parliament on September 1, 2004 relating to the Court decision requiring Parliament to sit and debate the motion of no-confidence in the Prime Minister, constitutes the offence of contempt.
(c) Article 27 (1) of the Constitution does not protect the Honourable Rialuth Serge Vohor, the Prime Minister of the Republic of Vanuatu, from prosecution;

AND UPON FURTHER HEARING John W. Timakata on behalf of the Public Prosecutor and Mr. Daniel, Warsal and Sampson Endehipa, the Attorney General, on behalf of the defendant today the Court make the following further orders varying the Order of September 11, 2004 in the following terms:-

1. The Respondent, the Honourable Rialuth Serge Vohor, is summoned to appear before the Supreme Court on September 17, 2004 at 9 a.m. to show cause why he should not be committed for Contempt;
   
2. The Defendant, the Honourable Rialuth Serge Vohor has liberty to make any application before September 17, 2004;
   
3. Costs of this application in favour of the Public Prosecutor.”
   
10. To day the 17^th day of September 2004 the Court heard the application by the Defendant to stay the Orders as varied on 12^th September because he has appealed those orders.
    

DEFENDANT’S CASE

11. The defendant submitted the following grounds for his application.
    
    • (1) An appeal has been filed with the Court Registry challenging the decision of this Court dated 11^th and 12^th September 2004. The grounds are specified in the Memorandum of Appeal;
      
    • (2) Information was laid before the Magistrate’s court on 10^th October 2004 (this clearly is a typing error-must be 10^th September) charging the defendant with contempt of Court contrary to section 32 of the Judicial Services and Court Act No. 54 of 2000. The matter was still with the Magistrate’s Court and should be allowed to go through the preliminary enquiries.
      
    • (3) The defendant was not properly served with the relevant documents for the hearing on 11^th September 2004. 11^th September 2004 was a Saturday. Counsel for the defendant was served the documents in Court.
      
    • (4) The defendant, through his counsel, was not given the opportunity to study the documents and present his case. The defendant was overseas. There was no opportunity to obtain instructions and prepare the Defendant’s case.
      
    • (5) The defendant submitted that the case has been determined. Paragraphs (b) and (c) of the Orders dated the 12^th day of September 2004 contains findings by the Court firstly in relation to contempt and, secondly whether the Defendant is protected under article 27 (1) of the Constitution. The only avenue available to the defendant is to seek redress from the Court of Appeal.
      
    • (6) Section 2 (2) of the Criminal Procedure code Act [CAP. 136] provides:-
      

“Notwithstanding any other provisions of this Code, a Court may, subject to the provisions of any other law of criminal jurisdiction in respect of any matter or thing to which the procedure described by this Code is in applicable, or for which no procedure is so prescribed, exercise such jurisdiction according to substantial justice and the general principles of law.”

(7) This is authority for the Court to grant the application sought by the Defendant to ensure substantial justice is done to this case.

(8) If the criminal proceedings before this Court are not suspended, and the Court of Appeal finds in favour of the defendant, there will be miscarriage of justice.

PROSECUTIONS REPLY

12. Prosecutions in reply told the Court that before the Court could consider the application to stay proceedings in this Court it must firstly consider whether it has jurisdiction to stay a criminal proceeding which is not yet finally determined.
    
13. The Criminal Procedure Code does not provide for a stay or suspension of a criminal matter where the Court has not made a final determination. Criminal Procedure Code Act Part 11 provides for appeals. However there is nothing that empowers the Court to stay the proceedings while an appeal is being made to the Court of Appeal.
    
14. The grounds of defence that an appeal has been filed is not a ground to stay the proceedings.
    
15. On 11^th September 2004 all documents in relation to this matter were served on the legal counsel of the defendant.
    
16. At the hearing on the 11^th September 2004 the legal representative of the defendant did not object nor asked for an adjournment so that he could have time to consider the matter before responding.
    
17. On the 12^th September 2004 at the time when application was made to vary the orders of 11^th September again the opportunity was there. Yet the legal representative did not make use of that opportunity.
    
18. The Prosecution submitted that throughout the proceedings the procedure was fair and the Court today is providing yet another alternative to the defendant to show cause.
    
19. Prosecution maintained that there is no jurisdiction to stay the proceedings.
    
20. The defendant will still have a right of appeal at the end of the proceedings in the Supreme Court when it is finally.
    

DISCUSSIONS

21. On the 11^th of September 2004 when the application was made for committal orders to commit the defendant to prison for contempt the defendant was out of the country.
    
22. When the application was made on the 12^th of September 2004 to vary the orders made the previous day the defendant was still outside the country.
    
23. The documents relating to this matter was served on the legal representative of the defendant in Court on the 11^th September 2004.
    
24. The application by the Public Prosecutor was made on that day. That did not give sufficient time for the legal counsel to prepare submissions on behalf of the defendant.
    
25. Section 35 of the Judicial Services and Court Act No. 54 of 2000 provides that the proceedings for contempt of Court is to be proceeded by way of summary proceedings. Summary proceedings in my view does not mean that the proceedings are carried out in such a way that the right of the defendant in presenting his case is discarded. Adequately opportunity must be accorded.
    
26. Section 2 (2) of the Criminal Procedure Code Act provides that:-
    

“Notwithstanding any other provisions of this Code, a Court may, subject to the provisions of any other law of criminal jurisdiction in respect of any matter or thing to which the procedure described by this Code is in applicable, or for which no procedure is so prescribed, exercise such jurisdiction according to substantial justice and the general principles of law.”

27. The defendant arrived back in the country after the orders of 11^th and 12^th September 2004 had been made.
    

ORDERS

28. My view is this:
    
    • (1) This Court has jurisdiction to decide whether to stay the current proceedings to allow the appeal to be determined. That jurisdiction is found in Section 2 (2) of the Criminal Procedure Code Act.
      
    • (2) Adequate opportunity must be given to the defendant to present his defence.
      
    • (3) Substantial justice of the matter requires that the current proceedings in which the defendant is required to show cause why he should not be committed to prison for contempt be stayed until the appeal is determined.
      
    • (4) The application to stay the proceedings in Criminal Case No. 33 of 2004 is granted.
      

DATED at Port Vila, this 17^th day of September 2004.

H. BULU
Judge.