McCluskey v Attorney General [1994] SBHC 33; HC-CC 187 of 1994 (30 September 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 187 of 1994

WILLIAM DOUGLAS McCLUSKEY

-V-

THE ATTORNEY GENERAL and
WOLFGANG MEINERS

High Court of Solomon Islands

(Muria, CJ.)

Hearing: 23 & 24 August 1994
Judgement: 30 September 1994

J. Sullivan with T. Kama for the Applicants
C. Ashley First Respondent
KL Milte for the Second Respondent

MURIA, CJ: There are two applications before the court, both seeking exactly the same orders from the court. One was filed on behalf of the Applicant Richard Anthony Barber and the other was filed on behalf of William Douglas McCluskey. In both applications, the Attorney General is the First Respondent (Representing the Chief Magistrate) and Wolfgang Meiners is the Second Respondent.

As the issues involved are the same in both applications, I shall deal with both of them together, referring to the two applicants simply as "the applicants" where necessary.

The applicants have brought these applications seeking, firstly an order of certiorari to quash the charge of conspiracy to commit a felony brought against each of them under section 376 of the Penal Code, and secondly an order of certiorari to quash the warrant of arrest issued against each of them. In the alternative, the applicants have also sought orders to prohibit the second respondent from proceeding with the charge against each of the applicants and further that the first respondent and all Magistrates be prohibited from hearing or otherwise determining the said charges.

The charge against William Douglas McCluskey is as follows:

"Statement of Charge

Conspiracy to commit a felony contrary to s.376 of the Penal Code.

Particulars of Offence

William Douglas McCluskey, between 1st April 1991 and 27 June 1991 did conspire with Richard Anthony Barber, Mark McCluskey, Bruce Elliot, James Molineux Bayley and Grahame Dennis Miller to steal from Reef Pacific Trading Limited (a company incorporated in Solomon Islands) by a trick in that the Chief Justice of the High Court of Justice of the Solomon Islands was fraudulently induced to order that the aforesaid William Douglas McCluskey and Richard Anthony Barber be appointed as Receivers to Reef Pacific Trading Limited and did unlawfully and by intimidation and with intent to permanently deprive, take and carry away monies, books, records property and diverse other things of value from the custody of the aforesaid Reef Pacific Trading Limited"

The Warrant of arrest issued against Mr. McCluskey contains similar wording as that of the charge.

The charge against Richard Anthony Barber is as follows:

Statement of Offence.

Conspiracy to commit a felony contrary to s.376 of the Penal Code.

Particulars of Offence

Richard Anthony Barber, between 1st April 1991 and 27th June 1991 did conspire with William Douglas McCluskey, Mark McCluskey, Bruce Elliot, James Molineux Bayley and Graham Dennis Miller to steal from Reef Pacific Trading Limited (a company incorporated in Solomon Islands) by a trick in that the Chief Justice of the High Court of Justice of the Solomon Islands was fraudulently induced to order that the aforesaid Richard Anthony Barber and William Douglas McCluskey be appointed as Receivers to Reef Pacific Trading Limited and did unlawfully and by intimidation and with intent to permanently deprive, take and carry away monies, books, records, property and diverse other things of value from the custody of the aforesaid Reef Pacific Trading Limited."

The Warrant of arrest issued against Mr. Barber contains similar wording as that in the charge.

Both the charges and warrants were signed by the Chief Magistrate on 17 June 1994 pursuant to a private complaint lodged by Wolfgang Meiners (the second respondent). That complaint was in a form of affidavit sworn by the second respondent also on 17 June 1994. It is a 14 page complaint.

Before I proceed further into the matter, let me deal first with the point raised by the second respondent regarding the amendment to the charge against each of the applicants.

Mr. Milte submitted that the amendment was to have been made by the Magistrate but never came around to doing it. The amendment was to alter the date so that in the particulars of the offences there should read "1st January 1991 and 27th June 1991" instead of "1st April 1991 and 27th June 1991." It is not clear whether or not an application for the amendment had been made nor is it clear that the proposed amendment was in respect of the particulars of the offences in the charges only or also in respect of the particulars of the offences in the Warrants.

One thing that is clear, is that in the Magistrates Court file, there was a signed copy of the affidavit of complaint, two signed copies of the charges against the applicants and two signed copies of the warrants of arrest against the applicants all dated 17 June 1994. There is also a typed-draft order containing the proposed amendment but which had not been signed nor dated.

Is the unsigned and undated draft order part of the record of Magistrates Court in this case? The record in this case must consist of the documents which initiate the proceedings to be brought before the Magistrates Court. Those documents are the complainant's affidavit, the charges and warrants issued and signed by the Magistrate. The proposed amendment as drafted, undated and unsigned cannot in my view form part of the record and I reject the submission to have it included as part of the record. No justification for the existence of proposed the draft order can be seen from the record and it cannot be readily assumed that the magistrate had granted the amendment as drafted. I further reject the suggestion that even if the Magistrate did not sign the draft amendment then, he could still sign it at a later stage and that it would then form part of the record. To do as suggested would be to allow a document which was not originally part of the record to be added to the records. What constitutes the record for the purpose of proceedings such the present one, had long been decided by the courts. See R -v- Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338 where Lord Denning said at pp. 351 - 352:

"It will have been seen that throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What then is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings."

Having considered the various authorities on the question, he went to conclude:

"Following these cases, I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them."

Again in Baldwin Francis, Ltd -v- Patents Appeal Tribunal [1959] 2 All E.R. 433, Lord Denning also said that there:

"should be included in the record, not only the formal order, but all those documents which Appear therefrom to be the basis of the decision."

The learned Chief Magistrate in the present case had decided to lay the charges and issued the warrants against the applicants on 17 June 1994 based on the complaint on oath by the second respondent also on 17 June 1994. To accept the unsigned and undated proposed amendment as drafted would also mean allowing amendment to be made to the record clearly that cannot be allowed to be done as the order of certiorari sought is a review process of an error of law on the record unlike that of an appeal.

The record in the present case must therefore comprise of the affidavit of complaint on Oath sworn by the second respondent, the two charges of conspiracy to commit felony and the two warrants of arrest against the applicants.

I shall now turn to consider the substance of the case now before the court. The issue here is fairly clear. It is whether on the record there is basis for the decision taken by the learned Chief Magistrate to issued the charges of conspiracy to commit a felony and to issue warrants of arrest against the applicants. For if there is no basis for the decision on the record then there will be an error of law.

The provision of the law under which the second respondent brought his complaint to the learned Chief Magistrate is section 76 of the CPC. For the present purpose subsections (2), (3) and (4) are relevant and I set them out hereunder:

"(2) Any person who believes from a reasonable and probable cause that an offence has been committed by any person may make a complaint thereof to a Magistrate having jurisdiction to cause such person to be brought before him.

(3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the Magistrate, and, in either case, shall be signed by the complainant and the Magistrate:

Provided that where proceedings are instituted by a police or other public officer acting in the course of his duty, a formal charge duly signed by such officer may be presented to the Magistrate and shall, for the purposes of this Code, be deemed to be a complaint.

(4) The Magistrate, upon receiving any such complaint, shall; unless such complaint has been laid in the form of a formal charge under the preceding subsection, draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged."

Section 77 of the Criminal Procedure Code then authorises the Magistrate to issue Summons or Warrant to compel the attendance of the accused person before the Magistrate Court.

It will be observed that subsection (2) of section 76 authorises any person who believes from a "reasonable and probable cause" that an offence has been committed to make a complaint to the Magistrate. But what is a "reasonable and probable cause" must be viewed objectively from the circumstances as existed and known by the complaint at the time of making the complaint. As such if his complaint fails to show reasonable cause on the information existed at the time of making the complaint, resulting in the charge instituted in respect thereof also being unsuccessful, he cannot then relied on other facts which he did not know at the time but which later came to his knowledge to justify the bringing of the charge.

On the question of justifying the existence of a reasonable and probable cause, the Court made it clear in Commonwealth Life Assurance Society Ltd -v- Smith [1938] HCA 2; (1938) 59 CLR 527, at 542, that:

"In proving the existence of reasonable and probable cause, the defendant is confined to information of which he was aware at the time of the prosecution. He cannot justify a prosecution that failed by showing that facts of which he did not know made it reasonable."

In Hicks -v- Faulkner (1881)8 QBD 167, the Court there was dealing with a case of malicious prosecution and in the course of which the court dealt with the question of what is "reasonable and probable cause." At pages 171 and 172 the Court had this to say:

"To succeed in an action for malicious prosecution the plaintiff must allege and establish two things - absence of reasonable and probable cause and malice .... Now I should define reasonable and probable cause to be, an honest believe in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, ........................................................... in the guilt of the accused."

That case had been applied by Palmer, J. in the case of Wilson Wong -v- Chin Foot Hap & AG (1994) CC 134/91 (HC) where His Lordship found that the statement to the police made by the first defendant was by itself insufficient to show that there was reasonable and probable cause to justify prosecuting the plaintiff. The test applied by His Lordship was that of "an ordinarily prudent and cautious man."

In the present case, there are two aspects to be considered and they both must be tested on two different standards. At least, this is what I feel section 76 (2) and (4) of the CPC envisage.

The test of "an ordinarily prudent and cautious man" as stated in Hicks -v- Faulker is an objective one and it is the test more relevantly to be considered when ascertaining whether the complainant believes there is reasonable and probable cause that an offence has been committed as stated in subsection(2) of section 76. The belief held by the complainant in this case must be an honest belief on reasonable grounds of the true existence of the facts of the complaint which, if true in fact, would lead an ordinarily prudent and cautious man in the position of the complainant (the second respondent) to conclude that the persons charged (applicants) were probably guilty of the offences which he is alleging against them. When that is established, then the complainant can really be said to have the belief from reasonable and probable cause that an offence has been committed.

It will also be noted that the belief from a reasonable and probable cause must relate directly to the offence charged against the applicants.

When one turns to subsection (4) of section 76 one sees an obvious need for a test to be applied slightly higher than that required under subsection (2). This has to be so since upon receiving the complaint, the Magistrate then must draw up or cause to be drawn up and must sign the formal charge containing the statement of the offence with which the accused is charged. When that is done, the process of prosecution starts.

The Magistrate upon whom the law imposes the duty and the obligation to draw up and sign a formal charge must be appropriately satisfied to the required standard before doing so. That standard requires the Magistrate to be satisfied that there is reasonable and probable cause for preferring the charge which requires the Magistrate to be satisfied, having looked at the information containing the nature of the complaint, that there is admissible, substantial and reliable evidence in the information that a criminal offence known to the law has been committed by the accused. This is no longer a question of belief but that there must indeed be reasonable and probable cause for preferring the charge. It is a question of opinion which must be formed in the mind of the Magistrate who must then applied his mind judiciously to the facts before him before discharging the judicial duty cast upon him under subsection (4).

Having said all those, I now turn to the record in this case. Firstly I deal with the affidavit of complaint on oath sworn on 17 June 1994.

On perusal of the affidavit lodged by the second respondent, it is an obvious complaint against all those who had in one way or the other, done something which had greatly affected the interest of Reef Pacific Trading Limited. The second respondent narrated the history of what had occurred to the company between 1989 and the present time.

The affidavit has not been numbered but it can be conveniently dealt with on a page to page basis. The pages themselves have not been numbered either. However for convenience I numbered the pages 1 - 15.

In pages 1 - 6, in essence, the second respondent described how his company started and dealt with the various business arrangements with the various people including, George Moore, David Glasgow, James Molineux Bayley, Rosa and Graham Price. The fishing and processing project discussed with Bayley and the others did not get far and so in August 1990, the second respondent entered into another discussion with Graham Price with a view to entering into a seafood supply business. An agreement was reached, the draft of which was signed on 24 January 1991 by the parties to the agreement. The second respondent is still denying the validity of that agreement although the Court had already dealt with the validity of that agreement and the bank guarantee on previous occasions.

At page 6 - 7 of the affidavit the second respondent alleged that Bayley falsely stated that the assets and undertaking of Akeela Pty Ltd were substantially at risk and that Bayley asked for Official Receiver and Special Manager to be appointed, and then proceeded to nominate one of the applicants, Richard Anthony Barber. At page 8, the second respondent went on to state that on 25 March 1991 an ex parte application was made to the Court to have Mr. Barber appointed Official Receiver and Special Manager. An affidavit in support of that application sworn by William Douglas McCluskey was filed in Court on 23 March 1991.

The High Court granted the application and appointed Mr. Barber as Official Receiver and Special Manager.

Pages 9 and 10 of the affidavit really complained of the actions taken by William Douglas McCluskey, Bruce Elliot, Mark McCluskey, James Molineax Bayley and police officers pursuant to the order of the Court. In page 11, the second respondent raised an allegation that from the records created by Graham Miller the second respondent believed the receivership to be fraudulently inspired.

There is also quoted by the second respondent in page 11 of his affidavit the purported comments by Ward CJ at a hearing on 7 May 1991. I express grave doubt as to the correctness of that quotation. I have perused the record of the proceedings of 7 May 1991 and contains no such wording. Clearly quotation is in a form designed to suit the second respondent's allegations against the applicants.

The Receivers were discharged by order of the Court on 17 June 1991 which order was to take effect on 27 June 1991. At page 12 and 13 the second respondent complained of an Indemnity which he said he signed under pressure. He further disputes the validity of that indemnity.

Page 14 again repeated the second respondent's complaint about the validity of the Deed of Agreement and the Bank guarantee referred to in CC 246 of 1991.

In a nutshell, the second respondent has throughout his entire affidavit complained of his company being allegedly defrauded by the various people he mentioned in his affidavit. No doubt he knows that the court had already dealt with these issues in the cases which he cited in his affidavit. He also no doubt knows the decisions of the Court were against him on those issues. He is nevertheless continuing to raise them.

However in terms of section 76(2) of the CPC, the second respondent may well believe that the matters raised in his affidavit show reasonable and probable cause that the applicants had conspired to steal from his company by fraudulent means. I think it is rather unfortunate in this case that although the learned Chief Magistrate received the affidavit of Complaint, the second respondent had never informed the learned Chief Magistrate of the High Court's findings on the various allegations of fraud he is now bringing before the Magistrates Court. As I have said, the second respondent knows but the learned Chief Magistrate does not know of the Court's findings on some of the issues now being raised again.

The question of whether there is any error of law on the face of the record really turns on the second respondent's affidavit of complaint.

The charge against each of the applicants is conspiracy to steal from Reef Pacific Trading Limited by trick. The trick is said to be fraudulently inducing the then Chief Justice to make the order appointing the applicants as Receivers of Reef Pacific Trading Ltd.

The question therefore must be: On the facts as presented to him, could the learned Chief Magistrate acting judicially and properly considering the law have come to the decision that the charge of conspiracy to commit a felony should be preferred against the applicants in this case? If there are no grounds for preferring the charges on the record or the facts clearly do not support the preferring of the charge then there is no reasonable and probable cause for preferring the charge. That will be an error of law.

Throughout the second respondent's affidavit are various allegations of illegal conduct on the part of the various people named. But here we have a charge of conspiring to steal between 1 April 1991 and 27 June 1991. The Official Receiver and Special Manager had already been appointed by order of the Court on 25 March 1991. That is clear on the record. Pursuant to that order, the OR & SM had taken charge of the Reef Pacific Trading Limited and had powers rights and obligations to operate all businesses of the company. The mind of the company from the 25 March 1991 to 27 June 1991 was the Receiver.

Again, there must be some facts showing the existence of a conspiracy between the named persons in the charge. This necessarily required some evidence showing that there is an agreement between those named to carry out an unlawful purpose or to carry out a lawful purpose by unlawful means: R -v- Kamara [1974] A.C. 104, 119. I have gone through the affidavit filed by the second respondent and simply I cannot find one evidence of such an agreement. Perhaps what the second respondent is asking the learned Magistrate here is to imply from the various alleged illegal activities that there was an agreement to carry out an unlawful conduct by those named and to prefer the charges on that basis.

Even if the fact of the agreement can be inferred from the facts as disclosed in the complaint, there is still to be considered some evidence in the complaint showing that the acts of the alleged conspirators when considered together point to a common design. The common design in the present case must be the common design to steal from Reef Pacific Trading Limited by trick as alleged in the charge.

Are the facts as given by the second respondent such that the learned Chief Magistrate acting judicially and properly considering the relevant law could have come to the decision to prefer the charges against the applicants? With respect, I feel the answer to that question must be in the negative.

Mr. Milte argued that unless there are very exceptional circumstances, this court does not have the power to hear the present applications. I must disagree with Counsel. These applications are brought not to invoke the appellate power of the Court but its supervisory power within its inherent jurisdiction. As Lord Denning stated on the jurisdiction of the Court of Kings Bench in the Northumberland case, at page 127:

"The court of KB has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity. This extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the tribunal which, on the face of it, offends against the law."

In Solomon Islands the supervisory jurisdiction of this Court is provided for under section 84(1) constitution which says:

"84. (1) The High Court shall have jurisdiction to supervise any criminal or civil proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court."

The purpose of the court's supervisory role is that of "ensuring that justice is duly administered" by the inferior Court.

Mr. Ashley has contended that the learned Magistrate was entitled to rely on complaint on oath by the second respondent. Counsel further contended that the learned Magistrate was not duty bound to require further beyond the complaint as lodge.

Again I must disagree with Counsel. The decision to prefer a charge against a person is vital in the process of criminal prosecution. It is the beginning of the prosecution and as such one has to look at the information containing the nature of the complaint. It demands looking below the surface of the information using one's own experience and to be satisfied that there is admissible, substantial and reliable evidence that a criminal offence has been committed by the accused. To simply act upon oath alone of the Complaint would be to hold that learned Magistrate may discharge the judicial duty cast upon him by acting parrot - like upon the bald assertion of the information of the second respondent: See The Queen -v- Tillet, Ex parte Newton [1969] 14 FLR 101, 106 citing Bowden -v- Box [1916] 6 L.R. (NZ) 443 and Mitchell -v- New Plymouth Club (Incorporated) [1958] NZ LR 1070.

The materials disclosed in the Complaint on oath made by the second respondent, in my judgment, clearly do not support the charge of conspiracy to commit a felony as preferred against the applicants in this case. That is an error of law on the face of the record and consequently the charge against both applicant must be quashed.

As to the Warrant of Arrest, Mr. Milte argued that it is not amenable to certiorari. I do not need to go into the argument for and against this issue as I am of the firm view that a Warrant of Arrest is amenable to certiorari. It is a judicial order against which certiorari will lie. It must disclose jurisdiction on its face. See Gosset -v- Howard [1845] EngR 233; (1845) 10 QB 411 and The Queen -v- Tillet & Ors, Ex parte Newton & Ors (supra).

In the present case, there is clearly no grounds for the issue of the Warrants of Arrest against the applicants. For the same reasons as to quashing the charges, the Warrants of Arrest must also be quashed.

I order the charges and Warrants of Arrest against both applicants be removed into this Court and quashed.

Costs to the applicants to be on solicitor/client basis with certification for overseas counsel to be taxed.

G.J.B Muria
CHIEF JUSTICE