Pitabelama v Attorney General [2011] SBCA 4; Civil Appeal 17 of 2010 (9 May 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Cameron J)

COURT FILE NUMBER: Civil Appeal Case No.17 of 2010 (On Appeal from High Court Civil Case No.160 of 2010)

DATE OF HEARING: 3rd May 2011
DATE OF JUDGMENT: 9th May 2011
THE COURT:
AULD P
McPHERSON, CBE, JA.
WILLIAMS JA

PARTIES:

JOHN SMITH PITABELAMA
Appellant

V

ATTORNEY GENERAL
Respondent

ADVOCATES:
Appellant: MR MICHAEL PITAKAKA

Respondent: MS LINDA FOLAUMOETUI
MS R. MAEFITI

KEY WORDS: CLAIM IN CIVIL PROCEEDINGS FOR STAY OF CRIMINAL PROCEEDINGS, WANT OF EVIDENCE OF SERIOUS PREJUDICE FROM DELAY

EX-TEMPORE/RESERVED: RESERVED

ALLOWED/DISMISSED: DISMISSED
PAGES: 1 - 5

JUDGMENT OF THE COURT

1. This is an appeal of Mr John Smith Pitabelama against the refusal of Cameron J on 3 November 2010, in the exercise of his civil jurisdiction, to grant a permanent stay of a criminal prosecution against him in the Magistratres’ Court on the ground that the refusal was against the weight of the evidence.
   
2. The criminal prosecution is for larceny and embezzlement as a servant, contrary to section 273(b)(ii) of the Penal Code, allegedly committed over ten years ago on 9th August 2000. The police first interviewed him about it in November 2008, and charged him with it a year later, on 27th November 2009. The prosecution blame the delay on the low priority given to investigating the matter as a result of other more pressing demands on the police as a result of the tensions and their aftermath, limited resources and logistical difficulties in contacting and interviewing witnesses spread over various provinces – difficulties that the Judge acknowledged, albeit not finding them “entirely satisfactory”.
   
3. Mr Pitabelama’s case is that the ten years delay before charging him would cause him cause him such serious prejudice at trial that he could not receive a fair hearing, contrary to his entitlement to such “within a reasonable time ...”. He framed his case under section 10(1) of the Constitution, but, as the Judge pointed out, that provision is concerned with delay after charge, which he does not allege. The claim for delay before charge, upon which upon does rely, would more appropriately fall under section 18 of the Constitution; see e.g. Kimsi v DPP [1990] BCA 6.
   
4. The Attorney General’s case throughout has been that, notwithstanding the lengthy delay before charge, it is for Mr Pitabelama to show in what respect and to what degree he may be prejudiced by such delay in his defence when the matter comes to trial, as it now will within a short time after charge. He points to the fact that that Mr Pitabelama did not before the Judge or on this appeal give any indication of the nature of his defence or of the issues that he proposed to raise relevant to which witnesses or documents might no longer be available or in respect of which certain important recollections might have faded.
   
5. The Judge, in a concise and well-reasoned judgment, acknowledged that there could be cases where delay before and/or after charge could result in a denial of a fair hearing to the accused so as justify the grant in civil proceedings of a permanent stay of a criminal prosecution. However, he added that such cases would be exceptional, for the protection given by section 10 of the Constituion was not intended to operate as a statutory time limit on the bringing of prosecutions.
   
6. As the Judge observed, the true test, regardless of the length of time between alleged commission of an offence and the institution of criminal proceedings for it, is whether the accused can show on a balance of probabilities that the delay complained of has caused or will cause him to suffer such serious prejudice as to deprive him of a fair trial. See Robu & Ors v Regina CA- CRAC 24 of 2005. This was the issue on which Ms Folaumoetui focused on her submissions to the Judge and again to this Court, and which the Judge found critical.
   
7. The thrust of Mr Pitbelama’s sworn statements setting out his case on this issue was that the long delay had deprived him of the opportunity to retrieve relevant documentation and the support of important witnesses for his defence. Some had died and some were a long way away and he had lost contact with them. And he spoke of memories fading with the long passage of time. However, as we have indicated, he was silent as to the issues raised by such defence as he intended to advance to which any such evidence as he had in mind might be relevant. The Judge underlined this fundamental gap in his case, in the following words in paragraph 13 of his judgment:

“... what the applicant has not done in his sworn statements is [to] provide any details at all about the nature of his defence, how it is said tha witnesses who have died would have assisted that defence, how it is said that other witnesses with whom he no longer has contact would assist his defence, what documents he would need for his defence, what documents he has sought ... since the laying of the charge, and why he says it would be extremely difficult to have access to official files. In other words, hsi sworn statements are entirely general about nature of the prejudice, and in my view fall well short of demonstrating actual serious prejudice.”

8. Given that clear pointer to the essential weakness in the presentation of his case to the Judge, Mr Pitabelama might have been expected to make some effort to indicate to explain more fully to this Court in what respects want of evidence resulting from the delay would prejudice him in the issues he intends to raise by way defence. Notwithstanding a number of invitations from the Court to him through his counsel in the course of argument to make good this critical deficiency in his case before the Judge, he did not do so.
   
9. In the circumstances, this Court, like Cameron J, has no option but to reject Mr Pitabelama’s claim for a permanent stay of the prosecution he faces on account of alleged serious prejudice to a fair trial resulting from delay. He has not, in these civil proceedings, identified, still less made out on a balance of probabilities, the serious prejudice that he alleges. However, it is still open to him to seek to make his case on delay in the criminal proceedings with a view to obtaining a stay of the prosecution in that jurisdiction.
   
10. Accordingly, we dismiss Mr Pitabelama’s appeal, and confirm the Judge’s dismissal of his claim for a permanent stay of the prosecution that he faces in the Magistrates’ Court for larceny and embezzlement as a servant.
    

Sir Robin Auld
President

McPherson, CBE, JA
Member

Williams JA
Member