Attorney General v Mega Enterprises Ltd [2014] SBCA 19; SICOA-CAC 25 of 2014 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Faukona J)
COURT FILE NUMBERS:	Civil Appeal Case No. 25 of 2014 (On Appeal from High Court Civil Case No. 158 of 2011)
DATE OF HEARING:	13 OCTOBER 2014
DATE OF JUDGMENT:	17 OCTOBER 2014
THE COURT:	GOLDSBROUGH P, HANSEN JA, WILSON JA
PARTIES:	Attorney General Appellant -V – MEGA ENTERPRISES LIMITED 1st Respondent MAXIMUS INTERNATIONAL LIMITED 2nd Respondent JUBILANT DEVELOPMENTS LIMITED 3rd Respondent RITE TRADE PACIFIC LIMITED 4th Respondent YII GING HII AS HONORARY CONSULA FOR THE STATE OF MALAYSIA 5th Respondent
Advocates: Appellant: Respondent:	Solicitor General S. Banuve, Attorney General J. Sullivan QC and E. Soma, Sol - Law
Key words	5.8 Mutual Assistance in Criminal Matters Act. Constitution. Search warrants. Compliance with order. Guillotine orders
EX TEMPORE/RESERVED
ALLOWED/DISMISSED
PAGES	- 6

JUDGMENT OF THE COURT

1. The Appeal is dismissed.
2. There will be costs to the respondents on an indemnity basis, to be assessed. Certificate for Queen's Counsel.
   

[1] At the conclusion of the hearing, we dismissed this appeal and said we would deliver reasons. These are our reasons.

The appeal

[2] The appeal was against a decision of Faukona J delivered on 7 August 2014, entering judgment against the appellant. Leave to appeal was granted on 25 August 2014.

Background

[3] Civil Case 158 of 2011 arose from a request for assistance by the Attorney-General for Australia to the Solomon Islands Attorney General pursuant to s 8 of the Mutual Assistance in Criminal Matters Act 2002. It has a tortuous history of repeated delay that requires us to set out the chronology.

Chronology

11.11.2010	Request received from Attorney-General for Australia pursuant to the Act.
26.11.2010	Attorney-General approved the request for criminal assistance to be carried out in the Solomon Islands without condition. The RSIP were responsible for actioning the approved request.
21.01.2011	Information and application for search warrants filed and granted by Goldsbrough J
20.02.2011	Search warrants expire
19.04.2011	Renewed search warrants issued by Faukona J
28.04.2011	Search warrants served and partially executed. On that day, Chetwynd J refused an application for a stay.
03.05.2011	Application for leave to appeal against the decision of Chetwynd J, which annexed a draft Notice of Appeal.
11.11.2010	Request received from Attorney-General for Australia pursuant to the Act.
26.11.2010	Attorney-General approved the request for criminal assistance to be carried out in the Solomon Islands without condition. The RSIP were responsible for actioning the approved request.
21.01.2011	Information and application for search warrants filed and granted by Goldsbrough J.
20.02.2011	Search warrants expire.
19.04.2011	Renewed search warrants issued by Faukona J.
28.04.2011	Search warrants served and partially executed. On that day, Chetwynd J refused an application for a stay.
03.05.2011	Application for leave to appeal against the decision of Chetwynd J, which annexed a draft Notice of Appeal.
02.05.2011	Claim filed in the High Court civil case 158 of 2011 seeking the quashing of the search warrants and consequential orders.
24.05.2011	The appeal was allowed and the following orders made: Further execution of the search warrants stayed pending judgment in Civil Case 158 of 2011 and any appeal therefrom. The Commissioner of Police deliver all things seized in the course of execution of search warrants into the custody of Registrar of the High Court. Anything copied or stored in any electronic medium to be delivered or destroyed or decertified on oath. Certify that no item had been sent to Australia. Where matters seized had been stored or copied on to electronic data storage, to either deliver each to the Registrar of the High Court or irrevocably delete or destroy such copies. If nothing seized had been so copied, certify on oath to the High Court to that effect. Serve a copy of the sworn certificate upon the appellant's solicitors. Certify on oath that no document or thing had been delivered or sent to the Australian Federal Police Agent Smith, or to any other officer or agent of the Australian Federal Police or other Australian authority pursuant to Australia's request. Serve a copy of that sworn certificate upon the appellant's solicitors. Anything required to be done by the Commissioner of Police may be done by a police officer of the rank of Assistant Commissioner or above.
27.05.2011	Material seized in the course of execution was placed in the custody of the Registrar. The other parts of the Order were not complied with.
07.08.2014	On the respondents' application, a guillotine order was made by Mwanesalua J. That order required: i. The defendant making full disclosure on oath in accordance with rr 11.2 to 11.7. ii. Complying with those parts of the Court of Appeal order that had not been complied with. iii. Filing and service of a sworn disclosure statement no later than 13 December 2012. iv. In default of compliance with the above orders, judgment to be entered for the claimants and all search warrants whatsoever subsisting in these proceedings against any or all of the claimants shall be deemed to have been quashed.
07.08.2014	Judgment of Faukona J against the Crown
26.08.2014	Leave granted for the appeal by the High Court

[4] It was conceded by the Solicitor-General that even at the hearing of the appeal, not all orders made by the Court of Appeal and Mwanesalua J had been complied with.

[5] The proceedings commenced by the respondents raised a matter which we accept is of great importance in the Solomon Islands. That is whether the relevant provisions of the Mutual Assistance in Criminal Matters Act contravenes ss 3 and 9 of the Constitution and are therefore ultra vires the national parliament and are void, invalid and of no effect.

[6] A number of issues were canvassed in the submissions of the Solicitor-General, who responsibly accepted that the delay in this case is very considerable. He also accepted that this created real difficulties for him in arguing this appeal. We stress that the delays are not on the part of the Solicitor-General personally, but rather personnel within his office.

[7] We think it unnecessary to canvass all of his submissions, but note that first he submitted that the respondents had delayed progress of the Civil Claim 158 of 2011; secondly, the order was not a true guillotine order; and thirdly, the Crown had not been given the requisite notice of the hearing before Faukona J.

[8] Search warrants allow authorities to take steps that would otherwise be a breach of significant individual rights. For that reason litigation relating to search warrants is of the utmost seriousness and any court orders need to be strictly complied with. It is against that background our reasons are framed.

[9] We think it was legitimate for the respondents not to advance their proceedings in circumstances where there was repeated failure by the appellant to comply with the orders of the Court of Appeal and Mwanesalua J.

[10] Whether or not the order of Mwanesalua J was a guillotine order, is irrelevant. The matter was listed before Faukona J, who heard submissions and made orders.

[11] Nor does the complaint about failure of notice assist the appellant. It is clear from an email produced to us that it was the appellant who applied to have Civil Claim 158 of 2011 listed. The response of the respondents was to file an affidavit pointing out the delay and seeking that judgment be entered. At the hearing there was no application for extension of time to comply, although the appellant did request an adjournment. Given the delay and the repeated failure to comply with court orders, it is not surprising such request was refused by Faukona J.

[12] While it ps important that any conflict between the Mutual Assistance in Criminal Matters Act and the Constitution be resolved, that needs to be balanced against the int of the respondents. The delay in this case has been unconsnconscionable and borders upon contumelious. No satisfactory reasons have been advanced for it. There has been prolonged and persistent failure to comply with court orders. The delay and failures are fatal to this appeal.

[13] We also stress that the entry of judgment by Faukona J in no way prevents the important constitutional issue being argued when the issue arises again. His judgment must be limited to the search warrants in question only.

[14] In this case the delay, including failure to have complied with the orders even by the hearing of this appeal, is such that the Judge was right to enter judgment on the terms he did. It must be stressed that both the Court of Appeal, and in particular Mwanesalua J, gaveappellant sufficientcient time to comply with those orders. The appellant was clearly put on notice by Mwanesalua J of the consequences of not complying with his orders, yet no application for extension of time was made and the failure to comply continued.

[15] For the sake of completeness, we note that the appellant has still not complied with the requirement of the Court of Appeal that any affidavits filed on behalf of the Royal Solomon Islands Police Force had to be sworn by an officer of the rank of Assistant Commissioner or above. All we have before us is an affidavit of an inspector, and an unsworn affidavit of a sergeant. There is no explanation for this failure.

[16] The appellant is required to comply with the outstanding items remaining in terms of Faukona J's order.

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Goldsbrough P
President of the Court of Appeal

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Hansen JA
Member of the Court of Appeal

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Wilson JA
Member of the Court of Appeal