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Public Prosecutor v Carlo - judgment [2005] VUSC 90; CRC 025 2005 (12 July 2005)

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

CRIMINAL CASE No. 25 of 2005

PUBLIC PROSECUTOR

-v-

EVELYN CARLO

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Hillary Toa, the Public Prosecutor (Acting) for the Prosecution
Mr. Silas Hakwa and Ms Marie Hakwa of Silas Hakwa & Associates for the Defendant

JUDGMENT

This is the trial of the Defendant, Evelyn Carlo. She was charged with the two (2) following counts: Criminal Nuisance, contrary to Section 114 of the Penal Code Act [CAP. 135] (in count 1) and Failure to comply with the requirement of Firearms Licence, contrary to Section 3(a) of the Firearms Act [CAP. 198] (in count 2).

The Defendant pleaded guilty to count 2 and she pleaded not guilty to the offence as charged in count 1. The trial proceeds on that basis and the sentence in count 2 is adjourned pending the trial of the offence charged in count 1.

Section 114 of the Penal Code provides:

“No person shall do an unlawful act or omit to fulfil any legal duty; such act or omission being one which he knows may endanger the live, safety and health of the public or an individual.”

The following are the essential elements of the offence of Criminal Nuisance under Section 114 of the Penal Code Act:

1. That the accused has committed an unlawful act; and

2. That the accused knowingly committed an unlawful act; and

3. That the unlawful act endangered the life and/or safety or health of the complainant.
   

The law is that for the prosecution to succeed in a prosecution of an offence under this section, the onus and burden of proof rests on the prosecution and it never shifts. This means that the prosecution must produce evidence to establish to the satisfaction of this Court on the standard of beyond reasonable doubt from each and all essential elements of the offence as I set out above. Nothing less will do. If at the end of the day, I am left a doubt and the doubt is not a fanciful but a reasonable one, I must interpret it in favour of the Defendant and acquit her as charged in count 1.

In the present case, the prosecution case is based on circumstantial evidence. The best approach is to assess all evidence together at the end of the trial. If I am sure of the guilt of the Defendant, I must convict her. If I have left with some doubt and the doubt is a reasonable doubt, I must acquit the Defendant.

The prosecution charged the Defendant, Evelyn Carlo on two (2) separate counts and under two (2) separate legislations. They are two separate offences and they have to be proved distinctly and separately from one another. The prosecution intended to rely on the guilty plea of the Defendant to prove the offence in count 1, is inadequate and a misapprehension of the prosecutorial role and duties. Put it simply, the duty of the prosecutor is to prove each and all essential elements of an offence on the criminal standard of Proof beyond a reasonable doubt.

The prosecution called 3 witnesses: Ms Elsie Tony, Eddie Kalo and Police Officer Wilton Tor.

The defence exercises her right under Section 88 of the Criminal Procedure Code [CAP. 136] and elects to remain silent.

The prosecution summary of the evidence is set as follow:

Elsie Tony is the first Prosecution witness. She gave evidence to the following effect. She says she and one Eddie Kalo attended at the premises of the accused to conduct a surveillance to prove that her boyfriend was seeing the accused. Sometime during the early hours of the morning on November 2003 they saw her boyfriend, one John Alick came out from the home of the accused. Eddie Kalo followed John Alick to where the Market House is and had a conversation with him while she waited near the home of the accused. Eddie Kalo returned to where she was and told her that it was indeed John Alick and Eddie Kalo had also spoken to him. She then asked Eddie Kalot to knock on the accused’s door. The accused heard them knocking and asked who it was. There was a conversation which was corroborated by Eddie Kalo’s evidence. Eddie Kalo identified himself as the complainant’s brother and proceeded to ask whether it was true that John Alick had just come out of the accused’s home. The accused denied this. Eddie Kalo then told the accused that he had just seen John Alick coming out of her home and had in fact spoken to him. The accused switched on the light but both Elsie Tony and Eddie Kalo could not tell what she was doing because the curtains were drawn. Then the accused told them both to leave and that they should both return instead in the daytime. All this took place from say 12 midnight to just after 03.00 in early hours of 11 November 2003. After this they left the accused’s home and they retuned to the resident of Police officer Morris Kalmatak at Independence Park as this was where Elsi Tony got Eddie Kalo to accompany her on her surveillance. She says that when she saw daylight approaching she decided to return to the home of the accused by herself. In cross examination she admits that on the way she picked up yet another piece of wood. During cross examination Elsie Tony says the reason why she returned early and by herself is because she was furious that the accused had denied seeing John Alick. Asked why she picked up another piece of wood she says she was furious and that in such a situation one had to prepare to fight. She says when she arrived she could see that the screen door was open. Under cross examination she admits that she called out to the accused to come outside. She says that when she entered she observed that the accused was sitting on her sofa with her left leg raised up and the other on the floor. She says the accused was holding a gun in her left hand and that she had a knife on her lap. She says she was surprised and shocked to see this. She says by this time she was about three meters away from where the accused was sitting. She says she then proceeded and with the wood she was holding she hit the accused very hard on her head several times whereupon the accused fell backwards. She says the accused then tried to pickup the gun and point it at her. She says they both struggled and wrestled with the gun for about 3-4 minutes and during such struggle the gun went off. In cross examination she confirms that she did not know how the gun went off or who had fired the gun or in what direction the gun was fired. She also says in cross examination that the reason why she had to hit the accused on the head several time was to render her unconscious and to prevent her from using the gun. She says during the struggle, she managed to wrestle the barrel of the gun from the accused and thereafter hit the accused with the handle of the gun. The accused fell down to the sink. She says she then thoroughly beat the accused. The accused tried to protect herself pulling Elsie Tony’s hair and as a result Elsie Tony bit the hand of the accused. At this point in time the accused called out her neighbour name “Makrau”. Makrau’s husband Harrison Luen attended at the scene to separate the accused and Elsie Tony. Elsie Tony says she confiscated the gun to remove it from the scene. Harrison Luen told Elsie Tony not to do so as the gun belonged to the accused father.

Eddie Kalo is the second Prosecution Witness. He gave evidence confirming the first part of the evidence of Elsie Tony. He accompanied Elsie Tony on his surveillance from about 12 midnight to 03:00am in the early hours of the next day. He further testified that Elsie Tony was holding a piece of wood and used it to knock on the accused’s door. He confirms that the accused switched on the light but he could not tell what she was doing because the curtains were down. He said Elsie Tony was shouting verbal abuse and swearing at the accused through the window. The accused told them to leave and return in the daytime. He and Elsie Tony went to Police Officer Morris Kalmatak’s residence at Independence Park to sleep. He did not accompany Elise Tony in the daytime to the accused’s home.

The Third and last Prosecution witness is the Police Officer: Wilton Tor. He is not the primary investigating police officer in this matter. He said he had not undertaken any crime scene investigations. He took over from Police Officer Kalman Andrew. He provided evidence of firearm (.22) Bruno Riffle. An empty cartridge said to be the one used by the Defendant on November 2003. He gave evidence about the possible use or how a riffle of this kind can be used as he is an expert in that field within the Vanuatu Mobile Force (VMF).

Discussion on Evidence: Findings of facts and credibility

The evidence of the policeman will not help much. The prosecution make reference of a knife. There is no evidence of such a knife produced in Court. No evidence of the where the bullet went. Elsie Tony said the bullet went to the ceiling. There is no other evidence to show where on the ceiling or any photograph showing a mark of the bullet on the ceiling of the accused room.

Further, witness Elsie Tony did not mention about some parts of her conduct while she was with Eddie Kalo at the accused Home. Some part of her evidence may be believed as facts. Moreover they are not sufficient to prove on the criminal standard of proof of beyond a reasonable doubt that all the elements of the offence of criminal nuisance. There are factual evidence to establish the first element of the offence, however there is no evidence to establish the second element of the offence. There is insufficient evidence to support the guilt of the Defendant on the standard of beyond a reasonable doubt.

The Defendant Evelyne Kalo is acquitted and is discharged of the offence of criminal nuisance as charged against her in count 1.

Verdict: Not guilty.

DATED AT PORT-VILA this 12^th DAY of JULY 2005

BY THE COURT

Vincent LUNABEK
Chief Justice