Regina v Maga [2007] SBCA 6; CA-CRAC 32 of 2006 (16 October 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands (CRC 588/04)
COURT FILE NUMBER:	Criminal Appeal No. 32 of 2006
DATE OF HEARING:	29th September 2007
DATE OF JUDGMENT:	16th October 2007
THE COURT:	Lord Slynn of Hadley P, McPherson JA Ward JA.
PARTIES:	Regina (Appellant) -v- John Maga & Cecil Nokia (Respondents)
ADVOCATES: Appellant: Respondent:	C. McConaghy K. Averre & R. Cavanagh
KEY WORDS:
RESERVED/DISMISSED:	Dismissed.
Pages:	1-8

JUDGMENT OF THE COURT

The accused John Maga and Cecil Nokia, who are the two respondents to this appeal by the Director of Public Prosecutions, were indicted in the High Court on the offence of abducting Walter Tarai knowing it to be likely that he would be subjected to grievous harm. Under s.251 of the Penal Code the offence is made a felony punishable by imprisonment for 10 years.

Upon the charge coming to trial before the High Court, counsel for the defence asked that it be determined as a preliminary issue that the two accused were rendered immune from prosecution by force of the Amnesty Act 2000 and the Constitution (Amendment) Act 2001, which it is convenient to refer to together as "the Amnesty Act" unless otherwise indicated. After hearing submissions from counsel on either side, Naqiolevu J in a reserved decision ruled that the accused were entitled to the benefit of the immunity conferred by the Amnesty Act. Having satisfied himself that the two accused admitted the offence charged under s.251 of the Code, the learned Judge ordered them to be discharged from the proceedings.

It is against this decision and order that the Director now appeals on the ground that the orders for discharge were wrong in law and should be set aside, and that the accused should be remitted to the High Court for trial. In response, counsel for the accused challenge the competency of the Director’s appeal, and submit that it should be dismissed. Various other and more specific questions are raised in the Director’s submissions to the Court, but it is convenient to begin with the competency point as it promises to be decisive.

The Court of Appeal was established by s.85 (1) of the Constitution, which provides that it shall have –

"such jurisdiction and powers to hear and determine appeals in civil and criminal matters as may be conferred on it by the Constitution or by Parliament".

Jurisdiction in appeals is invested in the Court of Appeal by s.3 (2) of the Court of Appeal Act 1978. Consistently with 85 (1) of the Constitution, s.3 (2) of the Act confers on the Court power and jurisdiction to hear and determine all appeals which lie to the Court of Appeal by virtue of the Constitution or of the Act or of any other law for the time being in force.

The Court of Appeal Act distinguishes between Appeals in Civil Cases (Part III) and Appeals in Criminal Cases (Part IV). By s11 (1), which is in Part III, an appeal lies –

".......... In any cause or matter, not being a criminal proceeding, to the Court of Appeal –

(a) from any decision of the High Court sitting at first instance........".

By s.12 of the Court of Appeal Act, the Court of Appeal has, for all purposes of and incidental to the hearing and determination of an appeal under Part III, the jurisdiction of the High Court of Solomon Islands.

Appeals in Criminal Cases are dealt with in Part IV. There is a limited jurisdiction under s.21 in respect of appeals against a High Court decision on appeal from Magistrates, which are of no relevance here. Under s.20 appeals in criminal cases are predicated on there being "a person convicted on a trial held before the High Court". Such appeals are authorized (a) against conviction on a ground of law alone; (b) with leave of the Court of Appeal or certificate of the trial Judge, on any other ground; and (c) with leave of the Court of Appeal against sentence. In addition, s.21 in certain circumstances permits an appeal by the Director against an acquittal and also against a sentence passed on conviction.

None of these specifications is fulfilled in the present appeal. There has been no conviction or acquittal of the accused or either or them. It follows that an appeal is authorized in the case of either of these respondents only if it amounts to an appeal in a civil case under Part III of the Court of Appeal Act. And to satisfy the requirements of s.11 (1), it must be an appeal "in any cause or matter, not being a criminal proceeding.....".

The question whether an appeal is in a cause or matter that is a criminal proceeding was considered by the House of Lords in Amand –v- Home Secretary [1943] AC 147, in which Lord Simon L C said (at 156-157) that it was the nature and character of the proceeding (in that case an application for habeas corpus in extradition proceedings) that provided the test. If, said his Lordship –

"the matter is one the direct outcome of which may be the trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal".

The test laid down by his Lordship has been applied on many subsequent occasions. See, for example, Tan –v- Cameron [1992] 2 AC 205, in the Privy Council; and R –v- Governor of Brixton Prison, ex p Levin [1997] AC 741, at 746 – 747. Applying the same test here, there can be no doubt that the proceedings against the two accused were and are criminal in nature. They were prosecuted for having committed a criminal offence under s.251 of the Penal Code. So much is clear from the indictment on which the accused were brought to trial before Naqiolevu J in the High Court. Section 11 (1) of the Court of Appeal Act uses the expression "in any cause or matter, not being a criminal proceeding". As Lord Mustill said of similar language in Tan –v- Cameron [1992] 2 AC 205, 221, it directs attention "not to the proceedings which led to the order from which the appeal is brought, but to the nature of the cause or matter ‘in’ which the appeal is brought".

The present appeal therefore falls within those words in s.11 (1) of the Court of Appeal Act that expressly exclude an appeal in a matter that is a criminal proceeding. It follows that this is an appeal to this Court that is not permitted and that accordingly it must be dismissed.

Various other questions were raised in the Director’s submissions. In view of the conclusion reached about the incompetency of the appeal, it is neither desirable nor appropriate that we should decide them on this occasion. There is, however, one issue that was argued before us and should be briefly referred to. It was suggested on behalf of the Director that the course taken by the learned Judge in the High Court in discharging the accused was not permissible. Despite the decision in Fiji of Wilson J State –v- Ratu Silatolu [2002] on language similar to that of the Amnesty Act here, it was submitted by the Crown on this appeal that the procedure by application under s.255 of the Criminal Procedure Code of Solomon Islands was not available to the accused. Section 255 uses the word "pardon" and not "amnesty" or "immunity". It was further submitted that Parliament had failed to prescribe any procedure for obtaining the benefit of such immunity under the Amnesty Act, and that that was fatal to the claim for immunity even if the accused were entitled to the benefit of it.

This would produce an astonishing result and one that is based on a misunderstanding of the jurisdiction and powers of the High Court. In constituting the High Court for Solomon Islands, s.77 (1) of the Constitution invests it with "unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law ....". The argument advanced by the Director that a superior court of unlimited jurisdiction, like the Solomon Islands High Court, cannot grant relief under an Act of Parliament conferring a benefit, unless a specific form of procedure or relief is marked out for it, is plainly misconceived. A similar submission was rejected by the Privy Council in Board –v- Board [1919] AC 956, where the legislation creating the Supreme Court of Alberta had omitted to invest it with jurisdiction in divorce even though the right to divorce had been separately introduced into the substantive law of Alberta.

In giving the advice of the Privy Council, Viscount Haldane said (at 562) that:

"If the right exists, the presumption is that there is a Court, which can enforce it; for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Courts of Justice. In order to oust jurisdiction, it is necessary in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court."

Here there is nothing to exclude the jurisdiction of the High Court over or in respect of the Act or Acts granting the immunity conferred by the legislation. It would have been open to the High Court to make a declaration, or else to grant a permanent stay of the criminal proceedings against the respondents. Instead Naqiolevu J ordered the accused to be discharged from the proceedings. His Lordship was correct in doing so.

The Director’s appeal must be dismissed.

Lord Slynn of Hadley
President of the Court of Appeal

McPherson JA
Member of the Court Appeal

Ward JA
Member of the Court of Appeal