Police v Kaveao [2005] CKHC 7; HC JP App 3.2005 (24 November 2005)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

JP APPEAL NOS: 3/05, 4/05

IN THE MATTER of Section 76
Of the Judicature Act 198-81

BETWEEN

THE POLICE
Appellant

AND

KAVEAO MATHEW KAVEAO
of Matavera
Respondent

AND

COLE JACKSON HUNT
Respondent

Mr. Elikana and Sergeant Howard for Appellant (Police)

JUDGMENT OF WILLIAMS CJ

[1] These are two appeals by the Police in JP Appeal 3/05 and JP Appeal 4/05 which both involve decisions of Justices to dismiss charges on the ground of abuse of process. The abuse was the failure of the Police to provide a fair hearing and the particular complaint is that there has been no adequate disclosure to the Defence of all information which might be relevant to guilt or innocence.

[2] The appropriate course in each case is to adjourn the appeals sine die, ie. indefinitely to await a decision of the Court of Appeal in R v Arioka, leave is reserved to either party to apply if necessary, after the decision in Arioka for directions as to what should be done with these cases as a result of the Court of Appeal decision.

[3] It appears that the Justices are following to the letter the judgment of Justice Nicholson in the High Court in Police v Arioka in the sense that where they see inadequate disclosure and resultant abuse of process, following Nicholson J, they are dismissing the charges.

[4] While it is true that the Justices are ordinarily bound to follow judgments of the High Court, the position is different when the very issue is under appeal to the Court of Appeal and, even more so, where the Court of Appeal has heard arguments and reserved decision. In those cases, it is the view of this Court that the proper course is not to dismiss the charges but to either adjourn the proceedings or stay the proceedings to await the outcome of the Court of Appeal decision.

[5] There are a number of reasons for this. If the case is dismissed the successful Defendant may come to think that the matter is over for ever whereas if it so happens that the appeal succeeds the Court of Appeal would have power to reverse the discharge in which case the Defendant would be liable to re-arrest and the Prosecution would continue. Therefore dismissing the charges may give the Defendant a false sense of security.

[6] Accordingly, I direct that a copy of this decision on these adjournments should be conveyed to the Chairman of the Justices, to provide guidance to the Justices during the period which will now run until the Court of Appeal delivers its decision in the Arioka case.

[7] There is no need for the Justices to take any further steps in these two cases but they should bear in mind the remarks that I have made in relation to existing or future cases where the same kind of submission is made to them on the basis of the ruling of Justice Nicholson in R v Arioka.

David Williams
CHIEF JUSTICE

24 November 2005