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Public Prosecutor v Malsokley [2007] VUSC 98; Criminal Case ... of 2007 (29 June 2007)

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

Criminal Case No. ... of 2005

PUBLIC PROSECUTOR

-v-

NORBERT MALSOKLEY
TIMOTHY MALSOKLEY
MICHEL MALSOKLEY

Editor's note: case number is unavailable.

Coram: Justice H. Bulu

Counsels: Mr. Allan F. Obed and Mr. Leon Malantugun for the State
Mr. Jacob Kausiama for the Defendants

Date of Hearing: 13 – 14 December 2006 and 27 -29 June 2007
Date of Decision: 29 June 2007

DECISION

1. On Tuesday 9th August 2005 a death was discovered at Amelsanaliu, Wallarano, North East Malekula. The deceased was a young man by the name of Floriano.
   
2. Following the death, the Defendants were charged with intentional homicide contrary to section 106 (b) of the Penal Code Act [CAP. 135]. That section reads:-
   

“Intentional homicide

106 (1) No person shall by any unlawful act or omission intentionally cause the death of another person.

Penalty: (a) If the homicide is not premeditated, imprisonment for 20 years.

(b) If the homicide is premeditated, imprisonment for life.

(2) For the purpose of subsection (1), premeditation consists of a decision made before the act to make a homicidal attack on a particular person or on any person who may be found or encountered.”

3. The particulars of the offence are that “Norbert Malsokley, Timothy Malsokley mo Michel Malsokley yufala blong Rano village, Malekula Island samtaem long namba 9 August 2005 long Rano village nomo yufala ibin minim blong kilim ided man ia late Floriano Malere.”
   
4. The Accuseds pleaded not guilty to the charge.
   
5. I remind myself that this is a criminal trial and I sit as both a judge of law and facts. I remind myself further that the standard of proof required in this criminal trial is prove beyond reasonable doubt for all elements that are present in the alleged offence. I further remind myself that the only matters that I will consider for the purpose of reaching a decision are evidence only that have been admitted for the purpose of the proceedings.
   
6. The elements that the Prosecutor must prove and prove beyond reasonable doubt for the offence of premeditated homicide are:-
   
   • (a) there is a death;
   • (b) unlawful act by a person causing death;
   • (c) unlawful act was planned;
   • (d) intention (mens rea);
     
7. The Prosecutor called a total of 5 witnesses to prove its case. These were Erickson Malere, Rudolph Malere, Jean Marc, Grendly Kander and Toas Therry.
   
8. The States case evolves around admissions made by the Accuseds themselves to the Police. That such admission made was accurate, truthful and made freely. That there was no force, intimidation or pressure on the Defendants to admit that they caused the death of Floriano Malere. In making such admissions freely the Prosecutions have satisfied all the elements contained in the charge of premeditated homicide under section 106 of the Penal Code Act [CAP. 135].
   
9. The Defendants called 3 witnesses. They are the Accuseds themselves. They denied making such admissions but insisted that the Police, especially Corporal Therry Toas forced them to make such admissions. He told them what to say and forced them to do so.
   
10. At the end of the trial today the Defence counsel made oral submissions first. In essence the Defence counsel, submitted the only element under section 106 proved was that there was a death. All the other elements are not proved.
    
11. He went on to say the State run its case entirely on one statement by witness Corporal Therry Toas which stated that the Defendants admitted causing the death of Floriano Malere. But all the Defendants testified under oath that they did not make the admission voluntarily, and that they did not cause the death of the deceased.
    
12. In conclusion, the Defence counsel stated that because the evidence contradicts each other the Court will decide the matter.
    
13. In response to the Defence counsel’s submissions, the Prosecutor made his oral submissions. These were to the effect that:-
    
    • (a) Witness Corporal Therry Toas is not the only key witness for Prosecution. There were others in the interview room who witnessed what took place when Norbert made the admission. Officer Grendly corroborated the evidence by witness Therry.
      
    • (b) Police can arrest a person on suspicion that an offence has been committed.
      
    • (c) Witness Therry had received a phone call from the nurse practitioner. He went there. The nurse practitioner said the person at hospital died under suspicious circumstances. He also met and talked to the deceased’s family members at the hospital.
      
    • (d) Date is a big issue. Looking at different dates given will determine witnesses credibility. Norbert made his statement on 10 August 2005. Michel and Timothy made their statements on 11 August 2005.
      
    • (e) The Accused admitted murdering Floriano freely. That satisfies all the elements under section 106 of the Penal Code Act [CAP. 135]. They admitted to all the elements in that section.
      
    • (f) Public Prosecutor’s witnesses are credible witnesses.
      
    • (g) Defendant’s witnesses are not credible witnesses.
      
14. At the end of the Prosecution submissions, the defence counsel:-
    
    • (a) Responded that the Police arrested Norbert on suspicions of the chiefs of Walla, not on the basis of Police own suspicion.
      
    • (b) Informed the Court that the issue for the Court to determine is whether the admission made by the Defendants were made voluntarily and that they were not forced by the Police to make the admissions.
      
15. Throughout this trial, I have heard witnesses giving evidence for both Prosecution and the Defendants. I have heard counsels make submissions on behalf of their clients. And I have observed those that have stood in the witness box to testify.
    
16. On the evidence before this Court in this trial, I agree with the defence counsel that the issue for determination is whether the admission by the Defendants to the police was done voluntarily. If I reach a conclusion that it was done by force, or intimidation or pressure then the case falls through. That’s the law. However, if I reach a conclusion that the admission was made voluntarily, then the elements in the offence are satisfied.
    
17. However, before I do that, it is right that the Court firstly deal with the issue whether Police arrested Norbert on suspicions by chiefs and not by Police themselves. What is the evidence before this Court.
    
18. On cross-examination witness Grendly Kender when asked, “yufala iarrestem Norbert forom wanem”. He replied that “ol chief long Rano mo Wala oli holem hem. Oli ringim mifala se oli holem one suspect. Mifala igo tekem hem down.” To another question on cross-examination that “So based long toktok long ol chief yufala itekem hem”. His reply was “Yes, ol chief now oli kasem information. Mifala igo karem icome long station mifala itoktok wetem hem, i admittim se itrue”.
    
19. Witness Therry Toas (Toas) in examination in chief in response to a question said “Mifala istap long station after working hours chiefs long Walla oli ring icome se oli holem one suspect. Mifala igo long village ol chiefs oli handem ova suspect. Mifala ikarem icome”.
    
20. On cross-examination witness Toas in answer to the question “why oli go blong arrestem Norbert”, he replied “Mifala irisivim one telephone call long council blong ol chiefs se oli holem one suspect blong incident blong 9 August. Mifala igo toktok wetem ol mo oli handem ova long mifala”.
    
21. And further to another question on cross-examination that because they were informed by chiefs that he was a suspect, so they took him in. He replied that “Duty blong me olsem police officer, long any case, we ikat suspect me mas tekem icome. Tekem icome blong interview hem se istret suspect or not”.
    
22. To another question on cross-examination he agreed that “before ikat suspect imas kat complaint fastaem”. He gave evidence that family Malere did lodge a complaint. Witness Toas also gave evidence that he talked to the doctor at the hospital who informed him of his findings that “ifindem some something istrange long deceased, death blong hem”.
    
23. On re-examination he gave evidence that he met with family Malere on 9 August at the hospital and invited them to the station to come in to make an official complaint.
    
24. In totality the evidence show that they received a call, went to see the nurse practitioner who gave them his opinion about the cause of death. Talked to Malere family. Then another phone call came in that there was a suspect. They then went to the village pursuant to the second phone call and brought Norbert in.
    
25. What the police did is, in my view, in line with police duties under the Police Act. The complaint does not have to be in writing before they can bring a suspect in for further questioning. A person has died under suspicious circumstances. When they received the call Police Therry wanted to test his suspicion, not the chiefs.
    
26. On the evidence before the Court and further to the powers given to the Police under the Police Act, I am not satisfied that the police acted in bringing in the defendant Norbert simply on the suspicion of the chiefs of Wallarano.
    

Did the Defendants freely admit that they killed deceased Floriano?

27. What is the evidence before this Court, or more correctly whose version of the events is believable.
    
28. The key witnesses for the Prosecution on this issue are Therry Toas, a police officer, Grendly Kander another police officer and chief Jean Marc.
    
29. Witness Therry gave evidence in examination in chief that they brought in Norbert on 10 August 2005 and interviewd him. He gave evidence that “suspect iadmittim offence olsem istap long statement blong hem. Hemi respond long freewill blong hem. Mifala ino threatenem hem. Me ridim rights blong hem. Evry storian blong hem me writtem down. Me ridim back long hem, iagree isignem”.
    
30. Witness Therry continued in his evidence that on 11 August 2005 they found Timothy and Michel outside their office. They came in to surrender. He continued that “long interview blong tufala tufala italem se wanem we nara one italem istret be bai oli just talem long Court forom wanem oli comitim offence ia. No mifala ino appliem eni pressure, tufala storian gud nomo”.
    
31. On cross-examination, he maintained his evidence that he did not force Norbert to make the admission. He gave evidence that “ino true. Statement blong Norbert me writtem wanem stret we hemi talem. Time mitufala ifinish me ridim long hem. Mi askem sapos hemi agree wetem, hemi agree mo isignem. Hemi storian long free will blong hem. Mi no bin forcem hem.”
    
32. He also gave evidence that Timothy and Michel also admitted that “tufala italem se first suspect storian itrue from me bin ridim statement blong first one long tufala.”
    
33. He maintained his story through out. Did not waver under cross-examination. He responded well to the questions and in my view was frank and honest with his answers. I believe his story.
    
34. The next witness for Prosecution Grendly Kandar. On evidence in chief he said “mifala ino threatenem hem (Timothy). Mifala itoktok good wetem hem. Mifala even sharem kakae wetem hem. Mifala ino forcem hem. I answer long free will blong hem. Hemi ansa se olgeta oli kilim late Floriano”.
    
35. In relation to Michel, he said “Mi recall hemi talem se wanem we papa mo Norbert italem hemia now. Mi no save talem eni mo samting. Oli respond long free will”.
    
36. Under cross-examination, he maintained his story. He seemed to be honest about his answers. Answered the questions frankly. I believe his story.
    
37. His evidence corroborates that of witness Therry.
    
38. Third witness for Public Prosecutor is chief Jean Marc. He gave evidence in chief that he asked Norbert “slow long hem. Afta hemi se no ino mifala ... me askem bagegen me askem gogo hemi talem se yes mifala ikilim ... hem, Michel mo Timothy”. He went on to say he asked him 3 times only “mo askem good”.
    
39. In evidence in chief he stated that, “firstly se oli wokbaot igo, me follem olketa me stap askem long hem se yufala now ikillim Floriano”.
    
40. Then later on still in examination in chief he said “he and chiefs Noe, chief Kalwater, chief Regau and chief Goslene Bangus olketa now oli questionem hem”.
    
41. He maintained his story in cross-examination that he did not force Norbert. He asked him slowly. He said he does not know how many times he questioned Norbert “be mi questionem 3 times”.
    
42. Further gave evidence “me holem hem blong icome kolosap me”.
    
43. On the totality of his evidence I am not satisfied that force or pressure was not used. Questions were raised in the presence of others. The same question was put to him many times by this witness. There was a time when he was brought before the council of chiefs and the council questioned him.
    

Defence witnesses

44. Norbert Malsokley gave evidence in chief that certain persons in the village forced him to say he and the other accuseds killed the deceased. He said he did not know, but they forced him.
    
45. At the Police station he gave evidence that Police Toas forced him to make the admission. Forced him to sign the statement.
    
46. On cross-examination he maintained his story that the Police forced him. He strongly argued that the Police forced him.
    
47. However, while in examination in chief when asked if he made a statement to Police his first answer was “no”. The question was repeated he said “nogat”. On insistence by Defence counsel for the third time he said “yes me mekem one statement”. The answer was given after a long pause. On another question in chief “nite we oli karem you ikam long station, long same nite ia nomo you mekem statement blong yu?”. His reply was “nokat long morning”. This is contrary to statement he made which is dated 10 August 2005.
    
48. On being questioned that he was misleading the Court about his statement and asked “why you stap kiaman long Court” he replied “from toktok we istap ino toktok blong me. Hemi toktok blong olketa we oli arrestem me”.
    
49. Counsel then said “yu stap kiaman long Court”. He did not give any answer.
    
50. Further on when again asked by counsel “hemi statement blong you we you kivim long Police?”. He answered “yes”. He admitted it. But in examination in chief he denied it.
    
51. He took long pauses before answering some questions put to him. I observed him to be nervous and not comfortable in the box. I find that he is not a credible witness.
    
52. Timothy Malsokley gave evidence in chief that on 9 August 2005 he was in the village due to the death of a family member. He saw a person running towards him with a bush knive, he ran away. He came by foot all the way to the Police station at Lakatoro. He said: Ibroke daylight stret long airport. He continued that Police Toas forced him to make the admission that they killed Floriano.
    
53. On cross-examination he gave evidence that in the investigation room, Toas, David, Bong mo Justino istap. Other evidence before this court are that those in the interview room that time are Toas, Grendly Kandar and Justino. No Bong.
    
54. To another question by counsel “bifo yutufala itoktok long Police yutufala iadmittim finish se yufala ikillim Floriano”. The witness took a long time to answer. Instead he asked the question to be repeated then he answered “no gat”.
    
55. Counsel put this question to witness “oli no forcem you, oli no toktok strong long you, you yet you putum wanem istap inside long pepa. True or ino true?” He answered “hemi true” after long pause.
    
56. Counsel asked him this question “sapos you ron we you save se one samting ihappen?” He answered “ino true” after a long pause and on being pushed and encouraged by counsel.
    
57. On the totality of his evidence I am not satisfied that he is a credible witness.
    
58. Michel Malsokley’s evidence in chief also denied that he made the admission freely to the Police. He gave evidence that he was forced to do so. That Police Toas did not want to listen to him to say why he went to the station. Toas forced him to admit to the killing.
    
59. On cross-examination he was asked “you gave evidence se long 10 August 2005 you stap long Wallarano long ansa long question blong counsel blong you. Now yu se yu stap long Lakatoro?” He gave no answer.
    
60. Another question “Norbert’s evidence ise icome long 10. Yu se yutufala icome long namba 10 mo yu se oli holem Norbert first, yutufala after. Why you talem different toktok long Norbert. Why you kiaman long Court?” He gave no answers. He looked side ways.
    
61. He gave evidence that they came together with Timothy to Police station. Timothy said “ibroke day light stret long airport”. He said “ibroke day light long Betel” That is a different place and not near the airport. He gave evidence, that officer Toas did not show Norbert’s statement to him. Witness Toas said he did in his evidence.
    
62. On another question under cross-examination “Two police oli se oli no forcem you. Yu plan nomo yu talem. You kiaman se oli forcem yu”. He gave no answer to this.
    
63. On the totality of the evidence I find his version of events impossible to believe.
    
64. On the totality of the evidence before this Court, I prefer the story by the Prosecution witnesses to those of the Defendants. I am satisfied that the Defendants freely made admissions to the Police about the death of Floriano. That they intentionally murdered him. By such admission, the elements required to be proved under section 106 are satisfied.
    
65. I am satisfied that Prosecutions proved its case beyond reasonable doubt.
    
66. Norbert Malsokley I find you guilty of intentionally causing the death of Floriano on 9 August 2005 contrary to section 106 (b) of the Penal Code Act [CAP. 135].
    
67. Timothy Malsokley, I find you guilty of intentionally causing the death of Floriano on 9th August 2005 contrary to section 106 (b) of the Penal Code Act [CAP. 135].
    
68. Michel Malsokley, I find you guilty of intentionally causing the death of Floriano on 9th August 2005 contrary to section 106 (b) of the Penal Code Act [CAP. 135].
    
69. Sentencing will be in Port Vila on 16 July 2007 at 9.00 a.m.
    

DATED at Lakatoro, this 29th day of June, 2007.

H. BULU
Judge.