Director of Public Prosecutions v Dao Dao [1989] SBHC 11; [1988-1989] SILR 142 (22 November 1989)

[1988-1989] SILR 142

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 19 of 1989

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAO and DAO

High Court of Solomon Islands
(Ward C.J.)
Criminal Appeal Case No. 19 of 1989

Hearing: 20 November 1989
Judgment: 22 November 1989

Appeal against acquittal - discretion of Magistrate to allow withdrawal under section 189 of the Criminal Procedure Code.

Facts:

The Respondents appeared before a Principal Magistrate charged with improperly revealing the contents of an examination contrary to section 28(c) of the Education Act. They pleaded not guilty and the case was set down for trial on 6 October 1989. At the hearing the prosecution applied for an adjournment on the grounds that two key witnesses were not present and further to investigate five other witnesses “to fill in the gaps”. Although defence counsel did not oppose the application the Magistrate refused the application and acquitted the Respondents. The reasons for the refusal were that the circumstances did not justify the long delay and the lengthy adjournment sought by prosecution. The Crown appealed against the acquittal of the two Respondents on the grounds that:

1. The learned Magistrate erred in the application of his discretion under section 189(2)(b) of the Criminal Procedure Code when he acquitted the Respondents under section 189(2)(b)(i) of the said code.

2. The learned Magistrate had erred in acquitting the Respondents for the reasons of the delay in the case coming to court.

Held:

(1) The principle is clear that an appeal court will only interfere with the exercise of the discretion to grant or refuse an adjournment where a clear injustice has occurred

(2) The learned Magistrate erred in law in considering the matter under s.189 (2) of the Criminal Procedure Code. He should have refused the application to withdraw, which was based on improper grounds, and required the prosecution to proceed. Whether the prosecution proceeded on the available evidence or offered no evidence would be a matter for them.

(3) Even if the prosecution were to proceed with the case there was not sufficient evidence to prove the case and applying the proviso to section 292(1) of the Criminal Procedure Code the appeal was dismissed.

Obiter: In general terms the delay in bringing the case to Court is a matter to be considered in mitigation of sentence but there may be cases where the delay may cause such prejudice to the accused in the presentation of his case or in the marshalling of his evidence that an acquittal could be appropriate.

Cases referred to:

R. v. Clement Tom [1988-1989] SILR 118

A. Rose for the Appellant
P. Tegavota for the Respondents

WARD CJ: The two Appellants appeared before the Central Magistrates’ Court on 21 August 1989 charged with improperly revealing the contents of an examination contrary to section 28(c) of the Education Act. They both pleaded not guilty and the case was adjourned to 6 October for trial.

At that hearing the prosecution applied for an adjournment on the ground that two key witnesses were not present. One, the Principal Education Officer (Examinations), was in England having a baby and the other, the Government Printer, was on leave and unlikely ever to return. The prosecutor also pointed out that he needed to investigate a further five other witnesses “to fill in the gaps”.

The request was to adjourn the hearing until the following March and, although defence counsel pointed out the fact that this would effectively prevent the student returning to school that year, he did not oppose the application.

However, the Magistrate understandably was unhappy and commented on the fact that the offence had been reported on 19 December 1988. He considered all the matters and stated:

“Nothing in the circumstances put forward seems to me to justify either the delay which has already taken place in this case or the further lengthy delay the prosecution now seeks. In particular, I think it is intolerable that a person of 17 should have had this charge hanging over her for almost a year and on the date of trial be asked to wait another half-year.

Even although the motion is not formally opposed I am not prepared to grant it. Adjournment refused.”

The prosecutor is recorded then as saying -

“As motion refused - cannot proceed to investigate further rumours we have heard to connect the defendants to the offence - case relies on circumstantial evidence which does not tie together sufficiently - as our investigation not yet complete. If I called the witnesses available I couldn't prove case - on basis no adjournment will be granted I cannot proceed.

Alternative is to seek withdrawal but not acquittal.

I ask to withdraw under section 189(2) (b) Criminal Procedure Code and that the defendants be discharged so that I can bring case back once essential evidence available. That is in the interests of justice.”

Defence counsel had nothing to add and so the Magistrate ruled -

“For exactly same reasons as for refusing adjournment I do not think it appropriate to leave case hanging over heads of accused. I allow withdrawal and acquit both accused under section 189(2)(b)(i).”

The prosecutor appeals against that decision on two grounds:

1. That the learned Magistrate had erred in the application of his discretion under Section 189(2)(b) Criminal Procedure Code when he acquitted the Respondents under Section 189(2)(b)(i) of the said Code.

2. That the learned Magistrate had erred in acquitting the Respondents for reasons of the delay in the case coming to court.

The question raised by the first ground of appeal relates to the application of section 189 of the Criminal Procedure Code.

Mr Rose refers to the case of R. v. Clement Tom [1988-1989] SILR 118 in which I set out the grounds on which a Magistrate would be expected to order an acquittal under subsection (2)(b)(i) when there has been a withdrawal of the charge under section 189. He suggests the learned Magistrate was wrong to acquit here because those grounds do not apply in this case.

The problem in this case, however, relates not to subsection (2) of section 189 but to the application of subsection (1).

I said in Tom’s case-

“Whenever a prosecutor seeks to withdraw a charge under section 189 he requires the consent of the court. Normally that will be given but only after enquiry by the Court as to the reasons for the withdrawal. If there is any doubt about the propriety of the application, the court should refuse and require the prosecution to proceed.”

In this case, the court had refused an application for an adjournment. That refusal is not the subject of this appeal and I would only say that the principle is clear that an appeal court will only interfere with the exercise of the discretion to grant or refuse an adjournment where a clear injustice has occurred. The learned Magistrate had good reasons in this case for refusing the adjournment.

The complaint of the prosecution in ground one relates to the order of acquittal following the Magistrate’s consent to withdraw the charge. The reason for that withdrawal was, as the prosecutor told the lower court, so that he would be free to bring the case back once essential evidence became available. That was the same reason that he had raised in seeking an adjournment. He was attempting to use withdrawal under section 189 to achieve the very adjournment the Magistrate had refused and for the same reasons.

I feel that was a clear case of seeking to withdraw for improper reasons and the learned Magistrate should have refused his consent to the withdrawal. Instead, what he did was to step, as it were, straight into subsection (2) and decide whether the order should be under (2)(b)(i) or (2)(b)(ii). There is nothing to suggest he considered the matter properly under subsection (1) in allowing the withdrawal. On the contrary, having said that he felt it was wrong to leave the case hanging over the defendants heads “for exactly the same reason as for refusing the adjournment”, he should clearly not have passed to subsection (2) at all.

Having refused his consent, the prosecution would have had to proceed. Whether they offered no evidence or tried to succeed on the evidence they had would have been a matter for them. Counsel for the Appellants has made it clear that they could not have succeeded and so an acquittal would have been inevitable.

Thus the first ground of appeal is made out. The learned Magistrate did err in the application of his discretion under section 189(2) because he had not given proper consideration first to the application under 189(1).

However, I am satisfied the prosecution did not have sufficient evidence to prove the case and so I apply the proviso to section 292(1) and dismiss the appeal.

It is not necessary to consider the second ground of appeal. Both Counsel agreed that the delay in bringing the case to court is a matter to be considered in mitigation of sentence but is not a reason for acquittal. In general terms I accept that but, whilst it does not apply in this case, I feel cases may arise when the delay has caused such prejudice to the accused in the presentation of his case or in the marshalling of his evidence that an acquittal could be appropriate.