Kelly v Attorney-General [1996] SBHC 30; HC-CC 141 of 1996 (13 June 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 141 of 1996

align="center">ter">SETHUEL KELLY

-v-

ATTORNEY GENERAL

B: Sam Awim Awich, Judge

Hearing: 6 June 1996 - Judgment: 13 June 1996

Counsel: R. Talasasa for Prosecution; S. Kelly in Person

Sam Awich J:

Mr Sethuel Kelly hereinafter referred to as Applicant filed ex parte summons on 15.5.1996 to be heard on 6.6.1996. His ex parte application was stated to be made, "pursuant to Order 61 rule 2" for leave to apply for order of certiorari and order of prohibition. The Respondent was stated as Attorney General, Representing F. Mwanesalua, Director of Public Prosecution. The application for leave to apply for issue of the orders followed soon after the Director of Public Prosecution had filed criminal information, at the High Court, indicating the Applicant and one, Gordon Darcy jointly. The information preferred 8 counts in all.

If the application for leave were successful, the applicant would seek certiorari order and prohibition order for the purposes stated in the intended notice of motion filed the same day, in these words of his:

"1. An order for certiorari as follows:

The charges under section 94(1)(a) of the Constitution and section 8(1), S11(1) and SS5(1) (d) & (e) of the Leadership Code (Further Provisions) Act, signed by the Respondent on the 29th June 1995 be quashed.

2. An order for Prohibition as follows:

The Respondent be prohibited from further action or otherwise of the said charges ".

There is also on the file, a document headed, "ORIGINATING SUMMONS" filed on the same day as the notice of motion. In the said originating summons, paragraphs 1 and 2 in the notice of motion appear word for word. There is further, a statement said to be pursuant to Order 61 rule 2. In it the Applicant detailed the parties to the application, and stated the reliefs sought as being order of certiorari and order of prohibition, "as set out in the originating summons". The grounds upon which the reliefs were sought were stated in a summary that charges sought to be quashed disclosed an error of law on the face of the record. That was expanded by stating 6 points that the Applicant said were errors. A copy of the information by which the accused has been charged in the High Court was also attached to the application. The 6 points may be stated briefly, and using Applicants words thus:

That the Applicant was charged on the complaint of Detective Sergeant Manelusi on 29.6. 1995. Applicant was discharged by Principal Magistrate 10. 7.1995. The DPP may not file information in the High Court after the expiry of six months. That DPP Committed Applicant for trial on 9.2.1996, that was, " ultra vires " and "a breach of natural justice", The DPP did not consider section 217 of the Criminal Procedure Code.

A copy of the proceedings before the said Principal Magistrate was not filed together with the intended notice of motion.

From this summary of the application I have before me, it will have become clear to anybody with knowledge of the practice of law, that the Applicant does not understand the procedure by which he seeks to present to court, his challenge against being charged. A prudent layman would wonder why he simply does not exploit the fact that he is not a lawyer, and is not represented by one, so that he simply could put his complaint against the charge in plain and simple way. Certainly the court would be under no less duty to examine whatever he says in a layman's way, carefully and to see whether they constitute recognised objections to criminal charges in law. Given the maze of papers filed by the accused, a lot of time had to be spent in trying to know exactly what he wanted the court to consider at the out set. A long time had to be given to him to address the court in the hope that what he wanted considered would crystallise. Time had to be spent in examining unnecessary papers such as "originating summons", and in searching for necessary papers that were excluded such as the records of the order of the magistrate.

In simple straight forward words, what the Applicant wanted the court to consider may be stated this way:

1. The charges now presented to court against him were about event first investigated in 1990, a long time ago, is it right, in law, that after that long delay of 5 years or more he should be charged in court?
2. The charges were first presented before a magistrate on 10.7.1995. The magistrate declined to commit (send) the case to the High Court for trial, is it right that the prosecutor (DPP) should insist on bringing it to the High Court?
3. In any case, the prosecutor has again delayed by 7 months, since the decision of the magistrate was made, to challenge it in a higher court, is it right in law that he should be allowed to do so only on 9.2.1996, the date he filed the charges at the High Court?
4. Some of the charges do not clearly state what the offences are, so accused does not know exactly the offences he is charged with.

These are important issues for the court to consider and the Applicant does not need to cloak them in legal jargons that he does not know how to use. The danger about doing so is that the court may then require that the technicality attempted be done properly according to the rules. I have to say at this moment, before I avert to considering the technicalities raised by the applicant, that the questions he has raised and now simplified above, are questions that must be resolved before the charges are read to the two accused. If they are resolved in favour of the accused's objections then the charges in the information will never be put to them at all to answer to. I have decided in this criminal case, at this stage of considering preliminary question as to whether the information is properly before the High Court, that it is not properly before the court. Further I have decided that the case be presented before magistrate's court to be proceeded with in preliminary inquiry as directed under sections 210 and relevant sections that follow, of the Criminal Procedure Code. The result of that, I cannot speculate about. If the magistrate does not find enough evidence to commit and the DPP does not act under section 217, that will be the end of the case. Should the magistrate find enough evidence and commit or should he decline to do so, but the DPP should act under section 217, then the case will come back to the High Court for trial on information properly filed. It will then be at that time that two of the four questions, Nos 1 and 4, will be put as objections to the information, and the DPP will have to satisfy the court that they are not valid objections otherwise the information will be quashed and accused discharged. Affidavit might have to be filed as to the facts and causes of the delay since 1990.

I shall not say much about the technical way in which the application has been presented. In law it is clearly wrong to apply for order of certiorari and of prohibition in the facts of this case. The two orders are used only when situations have arisen for the High Court, the superior court in Solomon Islands, to control the actions of subordinate courts or of tribunals or of someone acting judicially. That situation usually arises when there are facts presented which form the evidence upon which the decision for a proposition or opposition affecting right is made. There is usually a lis - see R v Electricity Commissioners Ex Parte London Electricity Joint Committee Co Ltd (1924) 1 KB 171 CA. For exposition of the various circumstances in which the High Court would exercise that controlling or supervising power, see R v Northumberland Compensation Appeal Tribunal Ex Parte Shaw (1952) 1KB 338 CA. It was stated there that certiorari would issue to the inferior court or tribunal to remove the record to the superior court if it appeared that the inferior court or tribunal had exceeded its jurisdiction or power and if on the face of the record there is a patent error of law , not just a wrong decision arrived at. The High Court would then proceed to deal with the matter removed and make its own order. Order of certiorari may also issue to remove improper indictments in inferior court and quash at the High Court. In this application the complaint is not against a court or a tribunal that has or is about to exceed its jurisdiction nor is it about proceedings there in which obvious error in law on the record is apparent. Further more there is no indictment, that is, charge before another court to be removed to the High Court. The DPP has filed information (charges) in the High Court itself. It should be met with objection, if any, before the High Court itself when the Applicant is arraigned and charges are about to be read for him to plead to.

Order of prohibition would normally be made to stop a subordinate court or tribunal that is about to exceed its jurisdiction or is about to act in disregard to the law or about to apply wrong principle. It also applies when the tribunal has departed from the rules of natural justice such as refusing to hear all sides or acting in a matter in which the magistrate or persons on the tribunal have personal interest. Those situations have not been said to arise here.

The facts stated in the affidavit in support of the application for leave under 061 r 2 to apply for orders of certiorari and of prohibition, do not show that conditions for applying the orders have occurred or about to occur, leave is refused. No order as to costs.

It is worth noting that our Rules at 061 r 3 provides that where opportunity for appeal exists the court may adjourn application for leave to apply for order of certiorari, until after the appeal has been dealt with or after time for appealing has elapsed. Moreover, the orders under 061 are discretionary. It appears that one is expected, though not required, before applying for order of certiorari, to exhaust the reliefs provided for by statutes such as appeal and review. In applying for order of mandamus it is a requirement. In the case of R v Public Service Commission Ex Parte Tiare (1984) SIR 80, the court went as far as stating that in principle, the applicant was bound to pursue his appeal before applying for order of certiorari, but for the fact that the appeal would have to be heard by the same body that had dismissed him from employment. I think that practice of first attempting the remedies provided by statute should be encouraged. After all, the orders of mandamus, of certiorari and of prohibition are remnants of the prerogative writs of the Sovereign in England, now even reduced in that country to orders under statute, the Administration of Justice (Miscellaneous Provisions) Act 1938. The application is dismissed. No order for costs.

Sam Awich
Judge