OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

UNLAWFUL REMANDING OF SUSPECTS IN TANNA PRISON BETWEEN THE YEARS 1999-2000

29 March 2006

29 March 2006

REPUBLIC OF VANUATU

0061/2006/03

REPUBLIC OF VANUATU

0061/2006/03

PUBLIC REPORT
ON THE
UNLAWFUL REMANDING OF SUSPECTS IN TANNA PRISON
BETWEEN THE YEARS 1999 - 2000

TABLE OF CONTENTS

1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

1. JURISDICTION

1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the Police Officer’s at Tanna Police Post. The Ombudsman can also look into defects in laws or administrative practices, including the unlawful remanding of suspects in Tanna Prison in the case of Paul Japhet and Jimmy Aisen.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this paper is to present the Ombudsman’s findings as required by the Constitution.

2.2 The scope of this investigation is to establish the facts about the unlawful remanding of suspects in prison and to determine as to whether it is lawful for the Police Officer’s to keep suspects in prison.

3. RELEVANT LAWS

3.1 Relevant parts of the following laws are reproduced in Appendix D.

THE CONSTITUTION

FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

5 (2) Protection of the law shall include the following:

(b) everyone is presumed innocent until a court establishes his guilt according to law.

CRIMINAL PROCEDURE CODE [CAP 136]

DISPOSAL OF PERSON ARRESTED BY POLICE OFFICER

s 15 A police officer making an arrest without a warrant shall without unnecessary delay and subject to the provisions herein contained as to release from custody, take or send the person arrested before a judicial officer or before an officer in charge of a police station.

DETENTION OF PERSON ARRESTED WITHOUT WARRANT

s 18 

(1) Subject to subsection (2) when any person has been taken into custody without a warrant for an offence other than intentional homicide or any offence against the external security of the Republic, the officer in charge of the police station to which such person shall be brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate court within 24 hours after he has been so taken into custody, inquire into the case. Unless the offence appears to the officer to be of a serious nature the officer shall release the person on his signing a written undertaking to appear before a court at a time and place to be named in the undertaking; but where any person is kept in custody he shall be brought before a court as soon as practicable.

PERSON ARRESTED WITHOUT WARRANT HOW TO BE DEALT WITH

s37

(1) Where a person who has been arrested without a warrant is brought before a court, the judicial officer before whom the person is brought shall draw up or cause to be drawn up and shall sign a charge containing a statement of the offence with which such person is charged, unless such a charge shall be signed and presented by a prosecutor.
(2) The court, if it has jurisdiction, may try the offence alleged to have been committed.
(3) If the accused person is brought before a Magistrate’s Court and such court has not jurisdiction to try him on the charge drawn up or presented under subsection (1), the court may release him on bail or remand him in custody for a period not exceeding 14 days pending the initiation of a preliminary enquiry under the provisions of Part VII.
(4) If at the end of such period of bail or custody, the prosecutor has not initiated a preliminary inquiry under the provisions of Part VII or taken steps to have the accused person appear or be brought before the Supreme Court, or taken any action to terminate the proceedings under the provisions of section 29 or otherwise, the Magistrate’s Court shall direct that the accused person appear or be brought before the Supreme Court and may release the accused person from custody on bail or remand him in custody to appear or be brought before the Supreme Court in order that the Supreme Court may direct whether he should be discharged.

FORCE STANDING ORDERS

When a Police Officer arrests any person without warrant, that officer shall without unnecessary delay, take or send that person:
(a) to Court, or;
(b) before the Officer-in-Charge of a police station

4.OUTLINE OF EVENTS

Jimmy Aisen and Japhet Paul were two suspects in Tanna placed in custody without a warrant of remand after they were arrested for cognizable offences.

Jimmy Aisen was arrested on 18 October 1999 and Paul Japhet on 26 October 1999.

The Police told them that they would be remanded in custody until such time when a warrant of remand is being issued. 

The Police officer’s promised that a Court hearing into their case would be held on 12 November 1999. However, the court hearing was postponed and deferred to the year 2000. The suspects remained in prison.

Mr Jimmy Aisen appeared before the Supreme Court on 21 July 2000 and was sentenced to imprisonment for a period of 12 months as from 13 July 2000. The suspects remained in prison.

The Tanna Police have not responded to clarify Mr Japhet Paul’s release despite numerous letters and reminders sent to them. Further the Police stated that they kept the two suspects in jail for their own safety.

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1 Before starting this enquiry, the Ombudsman notified the Officer in Charge of Tanna Police and other police officers and gave them the right to reply.

5.2 Also a working paper was provided prior to the preparation of this public report to give them another opportunity to respond. However only the Acting Police Commissioner responded.

6. FINDINGS

6.1 Finding 1: The Ombudsman finds that the Police Officers at Isangel Police Station failed to observe the Constitution when they kept Mr Paul Japhet and Mr Jimmy Aisen in custody from October 1999 to 13 July 2000 without proper custodial orders from the court.

6.1.1 Under Article 5 (2) of the Constitution anyone suspected of any crime is innocent until the court proves his guilt. In order for specified public agencies dealing with crimes observe this, established legal procedures are set up to deal with criminal suspects. The Police officers in Tanna failed to follow these procedures which may have led them to breach the Constitution.

6.2 Finding 2: The Ombudsman finds that the Police Officers had unlawfully kept Mr Aisen and Mr Paul in custody.

The Police Officers may have breached section 15 of the Criminal Procedure Code Act [CAP 136] that states all persons arrested by the Police without warrant shall without unnecessary delay be brought before a judicial officer or a Police Officer in charge of a Police Station. The Police Officers could not bring Messrs Paul Japhet and Jimmy Aisen to the judicial officer within 24 hours after their arrest. They were brought before the Police Officer in charge of Isangel Police Station but the Police Officers had failed to release them on a signed undertaking when the court could not sit to determine their case.

6.3 Finding 3: The Ombudsman finds that the Police Officers after arresting Mr Paul and Mr Aisen failed to follow legal procedures established by laws regarding arrests of suspects and how to deal with them.

The Police Officers may have breached s. 18 of the Criminal Procedure Code Act [CAP 136] which deals with detention of persons arrested without a warrant. All persons arrested for alleged commission of criminal offences [except for intentional homicide and offences against the external security of Vanuatu] are required to be brought to the Court within 24 hours of their arrest. If this is not possible then the Police after obtaining their statements, must release them on signing a written undertaking (Police bails) to appear on a specific given time and date named in the undertaking.

7. RECOMMENDATIONS

7.1 The Ombudsman makes the following recommendations based on the above findings to prevent such similar action by police to reoccur in the future. 

Recommendation 1: The Ombudsman recommends that the Police Officers should always maintain proper custodial procedures when dealing with suspects.

Paul Japhet and Jimmy Aisen were kept in custody for one (1) month.

Recommendation 2: The Ombudsman recommends that police officers serving at Tafea Police Station should at all times makes sure that proper custodial procedures are followed when dealing with suspects.

The Police failed to release Japhet Paul and Jimmy Aisen within 24 hours after their arrest or released them on a signed undertaking when the court could not sit to determine their case.

Recommendation 3: The Ombudsman recommends that the Police Officer in charged of Tafea Police Station reminds his subordinates of their duties in up holding law and order in the Country as per the Police Act [CAP 105] and to follow proper procedures established by law regarding arrests of suspects and how to deal with them.

Recommendation 4: The Ombudsman recommends that the Acting Commissioner through the Police College conduct training courses in legal procedures and principles in criminal justice system with all those Police officers who are directly responsible for arresting and investigating accused persons.

Dated 29 March 2006

Peter K TAURAKOTO
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Letter from Judah Silas (Sgt) Tafea Police Patrol
B Letter from Kency Avock (LT) Tafea Police Patrol
C Letter from Alick Ishmael – Assistant Superintendent of Prison Services
D Relevant laws

CONSTITUTION OF THE REPUBLIC OF VANUATU

FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL

5 (2) Protection of the law shall include the following:

(b) everyone is presumed innocent until a court establishes his guilt according to law.

CRIMINAL PROCEDURE CODE [CAP 136]

DISPOSAL OF PERSON ARRESTED BY POLICE OFFICER

s 15 A police officer making an arrest without a warrant shall without unnecessary delay and subject to the provisions herein contained as to release from custody, take or send the person arrested before a judicial officer or before an officer in charge of a police station.

DETENTION OF PERSON ARRESTED WITHOUT WARRANT

s 18 

(1) Subject to subsection (2) when any person has been taken into custody without a warrant for an offence other than intentional homicide or any offence against the external security of the Republic, the officer in charge of the police station to which such person shall be brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate court within 24 hours after he has been so taken into custody, inquire into the case. Unless the offence appears to the officer to be of a serious nature the officer shall release the person on his signing a written undertaking to appear before a court at a time and place to be named in the undertaking; but where any person is kept in custody he shall be brought before a court as soon as practicable.

PERSON ARRESTED WITHOUT WARRANT HOW TO BE DEALT WITH

s37

(5) Where a person who has been arrested without a warrant is brought before a court, the judicial officer before whom the person is brought shall draw up or cause to be drawn up and shall sign a charge containing a statement of the offence with which such person is charged, unless such a charge shall be signed and presented by a prosecutor.

(6) The court, if it has jurisdiction, may try the offence alleged to have been committed.

(7) If the accused person is brought before a Magistrate’s Court and such court has not jurisdiction to try him on the charge drawn up or presented under subsection (1), the court may release him on bail or remand him in custody for a period not exceeding 14 days pending the initiation of a preliminary enquiry under the provisions of Part VII.

(8) If at the end of such period of bail or custody, the prosecutor has not initiated a preliminary inquiry under the provisions of Part VII or taken steps to have the accused person appear or be brought before the Supreme Court, or taken any action to terminate the proceedings under the provisions of section 29 or otherwise, the Magistrate’s Court shall direct that the accused person appear or be brought before the Supreme Court and may release the accused person from custody on bail or remand him in custody to appear or be brought before the Supreme Court in order that the Supreme Court may direct whether he should be discharged.

FORCE STANDING ORDERS

When a Police Officer arrests any person without warrant, that officer shall without unnecessary delay, take or send that person:

(c) to Court, or;

(d) before the Officer-in-Charge of a police station