C4J wants review of laws governing prosecution
Updated: Oct 13, 2020
Campaign for Justice has previously recommended for the Office of the Public Prosecutor and other relevant government authorities to provide some leeway in the role that the office of the Public Prosecutor plays, so that anyone that is aggrieved may also have the opportunity of engaging any private prosecutor, instead of being confined to just one option, as is currently the situation where victims of crime have no other legal recourse but through the public prosecutions department.
As it stands, the option (to have a private legal representation) is made only available to offenders (defendants); but not the other party.
We seriously question the wisdom behind this absurdity. What sort of justice is that if those who commit crimes are permitted to seek a top notched barrister to defend their rights and yet the same opportunity cannot be accorded to victims of crime?
The letter below sums up the level of frustration we have had trying the get some sort of comfort and recompense for the level of ineptitude and injustice that is currently in-built through current legislations governing the work of the public prosecutor.
OPEN LETTER TO THE PUBLIC PROSECUTOR
It was brought to our attention recently - by an advertisement in the Daily Post ....that you were looking to fill a new position ...for someone to look after victims and their rights. Having experienced first-hand the impunity with which you deny victim's concerns, we are surely no more reassured than ever that you are in fact just further stonewalling us all by assuring victims remain under your sole authority to deliver them justice.
There is, first of all, a built-in assault upon equal rights under the law ...in the Constitutional authority [and franchise in it] you - the PP - now enjoy - and which authority you abuse willy-nilly. I shall explain: Whereas you retain Prosecutorial dominion over that process, the Defendant is free to choose whatever Defense Attorney he/she wishes. So, according to you, Mr PP, we victims must accept whatever advocate for the Law or Justice you designate...!
Our meagre pleas for proper prosecution have failed more than seven times to convince you that we have been painfully compromised by your recalcitrant decision in every instance. To none of these visits or letters of supplication have you ever replied.... That, sir, is 'IMPUNITY' - a total disregard for the Natural Justice we are all entitled to ...and deserve....!
In our particular case, we appealed the most immediate of our complaints to the Law Council - but that was a year ago; the Council has not been sitting during all this time. So, even there, we have had no avenue to appeal... We long for the opportunity to vent our frustrations, but there is no court of decency to hear our complaints ...thus we are sorely tried
The issue of equal justice under the law ....is one we have pursued ....and enquiries are being directed to this Prosecutorial issue - in fact a Policy Paper is, we understand, being prepared to escalate this concern to the highest levels of Government. So it may be that one way or other, redress may in due course result.... Meanwhile we are constrained to voice our continuing dismay and note that the PP will no doubt do all he can to protect this 'immoral' franchise he now enjoys ....but he cannot fight a tide of truth that mounts against him.
The above sums up the level of frustration we have had dealing with delays, excuses, defenses and justifications for not advancing cases to their final conclusions.
Campaign for Justice believes that for justice to prevail and a solution is found, it is only proper that something is done about current legislations, particularly those of the Public Prosecutor’s Act, CAP 293 and Article 55 of the Constitution. These provide for the establishment of the office of the Public Prosecutor. Bringing about legislative reforms in this regard would greatly lighten the workload of this Constitutional office, which is meant to play a key role in the delivery of justice.
We believe that by taking some of these loads off, we are certain it would bring about a speedier resolution of criminal complaints and discharging of criminal cases before the courts. There is absolutely no about that. At the moment, there is no way for 11 prosecutors to be assigned a workload of 3000 criminal complaints at any one time. Imagine one single prosecutor being assigned 270 cases at a time. Impossible and ludicrous!
In our experience and since our establishment in 2018, Campaign for Justice has raised the issue of delays after delays in the prosecution of cases we have been pursuing. They only go to prove the merit of our arguments for this proposal.
We are hopeful the Ministry of Justice will come good on their promise to see to it that legislative amendments are made.
It is even disheartening when victims of crime know that the quality within the office of the public prosecutor is not there. Worse, there is no assurance currently that they will get the justice they deserve.
Mind you we can only highlight the cases we have been dealing with in collaboration with the Vanuatu Police. Most of these cases have sat with the office of the Public Prosecutor since 2018-2019 – all pending ‘prosecution’.
On several occasions, our officers have met and discussed these outstanding cases with the Public Prosecutor and their junior prosecutors in the Santo office. Despite those efforts, nothing much has shifted an iota.
It seems no one can be held accountable anymore within that office. It is Ok for them to shun cases aside. It does not matter whether victims of crime suffer emotionally or psychologically.
We have made this call before and we urge our followers to edify themselves with our arguments here. We will not shy away from this issue until something is done about this gross injustice being overlooked by the powers that be.
The sad trend is that such attitudes of indifference are leading to impunity, because people know they will get away with it.
ROLE OF THE PUBLIC PROSECUTOR
Article 55 of the Constitution of the Republic of Vanuatu provides for the office of the Public Prosecutor. The article provides that the office holder shall be completely independent from the rest of the government. The Constitution stipulates that; “the function of the Public Prosecution shall be vested in the Public Prosecutor, who shall be appointed by the President of the Republic on the advice of the Judicial Service Commission. He shall not be subject to the direction or control of any other person or body in the exercise of his function.
The purpose of such “independence”, as stated by the office of the Public Prosecutor is to ensure that the Public Prosecutor can ensure that the rule of law is applied fairly and equally.
FOUR CASE STUDIES
To illustrate our frustrations we list the four cases we have been pursuing for two years with the Office of the Public Prosecutor without any light at the end of the tunnel;
(i) Criminal Case N0. 18/2506 – Public Prosecutor VS Nigel John Giltrap
The Case involves a serious assault on 2 elderly couples, Steven Quinto 85 years old and Ruth Quinto 77 years old by a New Zealand Investor Nigel John Giltrap. They were seriously assaulted on the 20th of March 2018 in a Chinese Restaurant in Luganville Santo. The Police Completed the case immediately after the assault incident and the case was submitted to the office of the Public Prosecutor in Santo for prosecution. It took the Prosecution office over a year to eventually prosecute the case, luckily by an intervention from the Chief Justice.
It started off as a serious assault case causing permanent injuries to a lesser degree assault under section 107 (b) of the Penal Code Act. The Accused got 14 months jail sentence but an appeal he won due to the ineffectiveness of the prosecutor, had his imprisonment term dramatically reduced to a mere 2 months. Despite the overwhelming evidence presented in the case, the prosecutor handling the case did not effectively prosecute the case.
The Victims have foreseen these weaknesses and the great Impunity prevailing in the Prosecution Office and also the inexperienced particular prosecutor assigned for the task and they have asked the Public Prosecutor to appoint a Private Prosecutor of their choice, but the Public Prosecutor refused to grant them that right of choice. The result, to the victims, was a tragedy. One of the victims, the old lady has become physically incapacitate and both are suffering from the trauma the unprovoked serious assault had left in their lives.
(ii) Police CR. 18/062/263 – This Criminal case was completed in 2018 and submitted to the office of the Public Prosecutor in Santo for prosecution. The case involves an assault on Harold James Neele by a New Zealand Investor Nigel John Giltrap. The case remains unprosecuted to this day. Unreasonable excuses were given by the Public Prosecutor to justify the Impunity prevailing in the important office he was charged with executing its role.
(iii) Police CR. 61688 – The Criminal case was completed in 2018 and submitted to the office of the Public Prosecutor for Prosecution. The case involved an assault on a Chinese Businessman in Luganville Santo by a New Zealand Investor Nigel John Giltrap. Because of the unnecessary delay by the public prosecutor to prosecute the case, the victim had withdrawn his complaints against this brutal criminal who is going around bushing up people without good reasons or with no reasons at all.
(iv) Police CR. 18/51072 – The case has taken over 2 years to be prosecuted. It remains unprosecuted without any reasonable justification. The case involves the Air-Vanuatu Staff members in Santo who were threatened by a New Zealand Investor Nigel John Giltrap who also case damage to office equipment just because he was not happy.
THE CAPACITY OF THE PROSECUTION OFFICE
C4J understands that the office of the Public Prosecutor is currently under-staffed. Due to the ever increasing level of crime, cases do accumulate over time and the burden of each prosecutor taking up over 270 cases at any one time is not healthy.
Considering that the burden of prove rests solely on the prosecutor to prove a case beyond reasonable doubt, it would take considerable amount of time for a prosecutor to prepare his/her brief of evidence before prosecuting a case. This is not happening in the Prosecutor’s office as the prosecutors are understandably overworked, which therefore means only a limited amount of time is allocated to each case.
C4J urges and calls upon appropriate authorities to engage in an open dialogue so that our proposals could be discussed further to assist policy makers come up with the best solutions to addressing the injustice being inflicted either wittingly or unwittingly.