IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	
Appeal from Judgment of The High Court of Solomon Islands (Mwanesalua DCJ)	

Court File Number:	
Criminal Appeal Case No. 21 of 2016 
(On Appeal from High Court Criminal Case No.  284 of 2015)       

Date of Hearing:
	
5 October 2017	

Date of Judgment:
	     
13 October 2017	

The Court:	
Goldsbrough P 
Ward JA
Hansen JA

Parties:	
REGINA  - V – NELSON MAETA & ORS
	
ADVOCATES:

APPELLANT:

RESPONDENT:	

Mr. G. Gray

Mr. R. B. Talasasa	

KEY WORDS:	   

ExTempore/reserved:

ALLOWED/DISMISSED

PAGES	
1- 5

JUDGMENT OF THE COURT

1.	This appeal arises from a decision delivered on 8 August 2016 in the High Court, which decision was delivered following the hearing of an appeal from a refusal in the Magistrates’ Court to grant a permanent stay of criminal proceedings.
 
2.	In the High Court an order was made that the criminal proceedings in the Magistrates’ Court should come to an end prior to trial, and the matter has proceeded no further other than this appeal brought under the provisions of section 22 of the Court of Appeal Act [Cap 6] by the Crown.

3.	Such an appeal to this Court is restricted, regardless of which party brings the appeal, to matters of law alone. The grounds of appeal in this matter suggest matters of law and there is no submission to the contrary from the Respondent.

4.	The question raised on the appeal to the High Court was whether a magistrates’ court in its criminal jurisdiction has the power to order a permanent stay of prosecution. On this appeal it is said that this question was not answered in the High Court, and, if it were, that the extent of that power has not been clearly set out. Further it is said that the grounds put forward to support any stay, if the power exists to order the same, do not in law amount to valid reasons.

5.	The charge in the criminal proceedings is that of obtaining property by false pretence. The allegation is that the Respondent purported to sell three gold bars as genuine and valued at $300,000. The gold bars in question were fake.

6.	The reason submitted, both in the magistrates’ court and the High Court, for a stay of proceedings was unfairness based on the proposition that the alleged victim, not being a licensed dealer in gold, was acting illegally given the restrictions on gold dealing to be found in Part VII of the Mines and Minerals Act [Cap 42]. The submission suggests that the alleged victim was not the holder of a licence under the Act to deal in gold, that the transaction itself was therefore an illegal transaction, and that consequently it would be unfair to act on the evidence of such a person.

7.	This argument, based on submission and made prior to the reception of evidence within the trial, met with no favour in the magistrates’ court. The application for a permanent stay was ruled as premature and ‘tantamount to an abuse of process’. There is a suggestion that the magistrate did not hear submissions on the application in open court on the scheduled hearing date but ruled based on the submissions which had been filed about one month in advance of that scheduled date. Clearly the magistrate had read the submissions for otherwise he would not be aware of the need to make a ruling, which he did, on the application.
 
8.	In the High Court it is less clear as to what took place, save that again no evidence was before the court. Counsel for the Appellant has filed a sworn statement setting out that which took place when the judgment was delivered orally on 8 August 2016 which evidence is not challenged in this Court. He further asserts that he was not provided with the written judgment at any time prior to seeing a judgment published on the Pacific Legal Institute website some time after the hearing. That published judgment, he asserts and, again, this is not challenged on appeal, gives a very different decision to that delivered in court. In the oral version the Respondents were acquitted of the criminal charges because the Crown had not proved beyond reasonable doubt that the offences has been committed by the accused. The published judgment indicates that, starting at paragraph 19: -

There is no evidence that the complainant (name given) was licensed to conduct gold dealing. It seemed that the complainant and appellants were all engaged in unlawful acts when they engaged in gold transaction (sic). It would be unfair to use the evidence of the complainant against the Appellants in either criminal proceedings or civil proceedings. They were both in breach of the law.
The proceedings in this case should not therefore continue. Order accordingly.

9.	For the purposes of this appeal we regard the published judgment as indicating an order that the criminal proceedings in the magistrates’ court are permanently stayed. No formal order to that effect has been drawn up or taken out and therefore no further step has taken place in the original trial court, but it has been assumed by the parties that this is the order made on appeal and forms the basis of the appeal to this Court. We do not consider it necessary to determine which, if any, of the two various judgments take precedence as each judgment, in its own way, terminates the criminal proceedings. The first cannot be correct, as no trial had taken place. The second raises the questions which counsel submit should be answered on this appeal.

10.	If we accept, and the evidence on this point remains unchallenged, that the High Court found the prosecution to have failed to prove beyond reasonable doubt the charges against the Respondents, then an incorrect test was applied to determine the matter before the High Court which was whether a permanent stay could be ordered by a magistrates’ court in criminal proceedings and whether, if that power exists, a stay was indicated on the facts as presented.

11.	If we find that the later, published, judgment better reflects the decision of the High Court then on appeal it is necessary to consider whether that decision was based on proper consideration.
 
12.	Either way it is apparent from the record that within the criminal trial no evidence had been called. Thus, no finding that the prosecution had failed to prove beyond a reasonable doubt could be made nor could any finding as to the status of the complainant as regards the Mines and Minerals Act nor the alleged transaction. 

13.	The Mines and Minerals Act provides in section 63 that: -

Any person who purchases, sells, exports or otherwise deals in gold contrary to the provisions of this Part shall be guilty of an offence and liable, on conviction to a fine not exceeding twenty thousand dollars or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

14.	Before any conclusion is reached suggesting that an offence has been committed it is necessary to establish whether anything has taken place which is caught be the section (that is to say sale, export or otherwise dealing in gold) and whether that act is contrary to the provision of Part VII of the Act. It is then, perhaps, understandable that in the magistrates’ court the presiding officer determined that the application before him for a stay based on these grounds was premature. No findings were available on evidence to support the same. That position is equally applicable in the High Court. For this reason alone, this appeal must be allowed.

15.	Assuming for a moment that facts establishing a crime under section 63 had been established against the complainant, the question arises as to what effect, if any, this should have on the criminal proceedings against the Respondents. In submissions for the Respondents it has been consistently the position that as the complainant is guilty of an offence thus evidence from the complainant may not be used in criminal proceedings for the offences involving an alleged sale of gold. To support that submission reference is made to the equitable notion of clean hands.

16.	An equitable principle such as that relied upon in submissions for the Respondents has no place in criminal law. It may be the case that there are now defences within the criminal law which have some basis in a similar principle. Such a reference appears in Roni v Ross Mining (SI) Ltd where Palmer J (as he then was) discussed the defence of illegality. That is quite different, however, from the present position where the Respondents seek to import the principle without attempting to support it as an established defence in criminal law. Taken to its logical conclusion, acceptance of this argument would suggest that any person guilty of a criminal offence would not be entitled to rely upon the law providing for a fair trial in criminal proceedings for they do not approach the court with clean hands.

17.	That notion is clearly unsupportable. For this reason, if nothing else, we would allow this appeal.

18.	A final argument on this appeal is that there should be a determination of the question as to whether the magistrates’ court has power in any event to order a stay of proceedings in its criminal jurisdiction. The position of the Respondent is that this power exists. The Appellant submits that no such power exists. In submissions reference is made to the magistrates’ court being a creation of statute alone and being confined to those powers prescribed in written laws given various powers. It is further submitted by the Appellant that the magistrates’ court lacks any inherent jurisdiction.

19.	Given that we have found that this is not a case where any findings could have been made to allow any decision to have been made nor, even if findings were properly made, was a case where a stay of criminal proceedings were indicated, we do not believe that we are entitled, on this appeal, to conclusively determine the existence of the power or otherwise. We note that there is a power to refer questions of law to the High Court, as referred to by the High Court in its judgment and we would recommend that course when next an application for a stay is made in the magistrates’ court.

20.	We further note that the magistrates’ court has an obligation to conduct criminal trials in accordance with the Constitution, being a fair trial within a reasonable time before an independent and impartial tribunal and that it therefore must have been endowed with the powers to achieve that objective. We therefore do not rule out the existence of the power of stay but the circumstances in which such a power falls to be exercised are not matters to be found within this appeal and therefore we cannot assist the parties to this appeal with any definitive statement of principle. 

The appeal is allowed. The decision of the High Court imposing a stay of proceedings is quashed and the matter remitted to the Magistrates’ Court for the trial to continue

………………………………………………
Goldsbrough P

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Ward JA

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Hansen JA