Fasi v Regina [2012] SBCA 10; CA-CRAC 38 of 2011 (23 March 2012)

IN THE SOLOMON ISLANDS COURT OF APPEAL
NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Palmer CJ.)
COURT FILE NUMBER:	Criminal or Appeal Case No. 38 of 2011 (On Appeal from High Court Criminal Case No. 175 of 2011)
DATE OF HEARING:	14 March 2012
DATE OF JUDGMENT:	23 March 2012
THE COURT:	Sir Robin Auld, President
	Sir Gordon Ward, JA
	Justice Glen Williams, JA
PARTIES:	FASI - Appellant
	-V-
	REGINA - Respondent
ADVOCATES:
Appellant:	MAELYN BIRD
Respondent:	RICKY IOMEA & RACHEL OLUTIMAYIN
KEY WORDS:	Criminal Law, Sanction of DPP required, evidence of Sanction, s.96 Penal Code
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED:	DISMISSED
PAGES:	5

JUDGMENT OF THE COURT

1. Relevantly for present purposes, the appellant was charged on summons dated 19 May 2010 with an offence against section 96(1) of the Penal code, namely that on 23 July 2008 at Honiara in the Guadalcanal Province being employed in public service in abuse of the authority of his office did an arbitrary act prejudicial to the rights of members of the Biche Tribe. In the Magistrate’s Court on 28 January 2011, he entered a plea of guilty to that charge.

Section 96(2) of the Penal Code provides:-

“A prosecution for any offence under this or either of the two last preceding sections shall not be instituted except by or with the sanction of the Director of Public Prosecutions.”

2. The Magistrate Court file reveals that, on the occasion of each appearance, counsel from the Office of the Director of Public Prosecutions (DPP) appeared for the complainant.

3. At the adjourned hearing in the Magistrates Court on 9 February 2011, the Magistrate queried whether the sanction of the Director had been obtained as the file was silent on the matter. A short adjournment was granted after which counsel produced a letter signed by the Director stating so far as is relevant:

“I confirm that the DPP on 15 March 2010 sanctioned the prosecution of Jeremy Fasi. This was by way of endorsing on the opinion submitted by a lawyer of my office seeking my approval. Following that the police were then instructed to charge Fasi accordingly. Section 96(2) of the Penal Code was complied with when I gave my approval.”

4. The Magistrate accepted the submission of counsel for the defendant that the letter was not sufficient. He ultimately held on 13 April 2011 that the charge was defective, refused to give leave to the prosecution to withdraw the charge, and acquitted the appellant. In so ruling, he held that the sanction was not “in the proper form.” He appears to have considered that a document evidencing the sanction should have been filed.

5. The prosecution appealed to the High Court against that decision of the Magistrate. The matter was heard by the Chief Justice and for reasons given on 14 October 2011, he allowed the appeal, quashed the orders of the Magistrates Court dated 13 April 2011, and made consequential orders.

6. He noted that “where a matter is instituted by the Director, it must be a given that it has his tacit approval for he would not have instituted proceedings without considering the matter in some detail before doing so.” Later in his reasons, the Chief Justice said the Director “instituted the proceeding himself.”

7. During the hearing before the Chief Justice, counsel produced the front page of the memorandum referred to in the letter provided to the Magistrate on 9 February 2011, and it bore the endorsement: “Noted with thanks, opinions endorsed. RBT. DPP. 25/3/2010.”

8. The Chief Justice held:

(i) The letter provided to the Magistrate on 9 February 2011 was consistent with the wording of s.96 (2) and no further sanction was required;

(ii) There is no requirement that the sanction of the Director be in writing;

(iii) There was no doubt that in this case the Director had applied his mind to the facts and given his sanction;

(iv) The letter presented to the Magistrate on 9 February was more than sufficient to prove the sanctioning.

9. In so concluding, the Chief Justice approved and applied the reasoning in Regina –v- Cain [1976]1Q B496 especially at 502.

10. The principal grounds of appeal to this Court were that the Chief Justice erred in holding that the sanction of the DPP need not be in writing and further that the finding by Chief Justice that the DPP had sanctioned the prosecution was against the weight of evidence. In oral submissions by Counsel for the appellant it became clear the latter ground of appeal involved the proposition that the sanction had to be offence specific.

11. The opinion on which the DPP wrote his endorsement on 15 March 2010 was available in the Magistrates Court on 9 February 2011 in the sense that it was in the possession of counsel for the prosecution but it was not seen by the Magistrate or Defence Counsel. As noted above, only the first page bearing the endorsement was received by the Chief Justice on the appeal to him. That page referred to the alleged forgery of a statutory declaration but did not refer to a charge of abuse of office contrary to s.96(1) of the Penal Code. It was because of that that counsel for the appellant submitted in this Court that there was no, or insufficient, evidence of a sanction to a charge of abuse of office. In accordance with that submission, the content of the letter provided to the Magistrate on 9 February 2011 was non-specific and did not evidence a sanction as required.

12. It must be said that this prosecution was not instituted by the Director as stated by the Chief Justice in his reasons. The proceedings were instituted by a police officer laying a complaint under s.76 of the Criminal Procedure Code and a magistrate then issuing a summons to the appellant under s.79. Thereafter appearances before the Court were by counsel from the Office of the DPP but that does not mean the prosecution was instituted by the DPP.

13. However, the fact that counsel from the DPP office appeared is some evidence indicating the prosecution was sanctioned by the DPP.

14. The letter produced to the Court of 9 February 2011 was also some evidence indicating the prosecution was sanctioned by the DPP.

15. It was the Magistrate himself who raised the issue of the sanction after the appellant had pleaded guilty. In all the circumstances, given the indications that the prosecution had in fact been sanctioned, the Magistrate should either have given counsel more opportunity of proving the sanctioning of the prosecution (for example, by calling the DPP) or allowing the prosecution to withdraw the complaint (as was requested) so the prosecution could have been started afresh. The Magistrate erred in acquitting the appellant as he did.

16. In this Court, the issue ultimately became was the sanction evidenced by the endorsement of 15 March 2010 specific to an offence of abuse of office. The respondent submitted the Court should receive the whole opinion in order to see for itself whether the sanction applied to an offence of abuse of office.

17. In accordance with the ruling made by this Court, the document was received (Exhibit 1). It clearly showed that the Director’s sanction was requested with respect to a charge of abuse of office pursuant to s.96(1) of the Penal Code. The endorsement of the Director was clearly a sufficient specific sanction for purposes of s.96(2). That was then readily conceded by counsel for the appellant.

18. The sanction need not be in writing but it should be specific to the offence in question. It is sufficient if the Director applies his mind to the specific charge and approves of the prosecution proceeding.

19. But, as is evident from this case, if there is no clear evidence of the sanction, the proceedings can become unnecessarily protracted and costs wasted. For that reason it would be a prudent practice for the Director to sign some document stating he sanctioned prosecution of a specific charge. That document need not necessarily be filed, but it should be readily available for production at the first hearing if required.

20. The appeal to this Court should be dismissed. Orders 1 and 2 of the Chief Justice of 14 October 2011 should stand. Orders 3 and 4 of the Chief Justice order should be set aside and in lieu thereof the following orders should be made:

3. Direct that the matter be remitted to the Magistrate’s Court for sentencing of the Appellant.

4. Direct that the appellant appear in the Magistrate’s Court on a date to be fixed by that Court on giving 14 days’ notice to the appellant.

Sir Robin Auld
President

Sir Gordon Ward, JA
Member

Justice Glen Williams, JA
Member