Maenu v Regina [1998] SBHC 122; HCSI-CRAC 23 of 1998 (28 September 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 23 of 1998

HUDSON MAENU & OTRS

-v-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

Criminal Appeal Case No. 23 of 1998

Hearing: 25th Septmeber, 1998
Judgment: 28th September, 1998

R. Teutao for the Appellants
R. B. Talasasa for the Crown

PALMER J.: This is an appeal against the order of the learned Magistrate in refusing to dismiss the charges against the Appellants for want of prosecution and acquitting them.

The brief facts:

The Appellants were first brought before the Magistrate’s Court by a police prosecutor for remand on 16th July, 1998. They were represented at the outset by legal Counsel, Mr. Teutao. The application for remand was opposed but unsuccessful. The learned Magistrate remanded the Appellants for 14 days.

On 29th July 1998, the Appellants were released on bail on conditions. One of those required them to report at the Central Police Station on three specified days each week (Mondays, Wednesdays and Saturdays).

The case was then adjourned to 17th August 1998 at 0900 hrs for mention. The purpose, as recorded in the transcripts, was to enable prosecution advise the court whether investigation had been completed and if so for the Appellants to be arraigned. If not, bail would be extended to a further date. Up to that date, the applications were handled by a police prosecutor.

On 17th August 1998 at 0900 hrs, the Appellants turned up in court for mention with their lawyer. No one for prosecution appeared. Mr. Teutao for the Appellants volunteered to the court that Crown Prosecutor, R. Talasasa was in charge of the case but that he was no where in sight around the court premises.

Mr. Teutao then sprung a surprise application on the learned Magistrate for dismissal of the charges against the Appellants under section 186(1) of the Criminal Procedure Code (CPC). He also relied on the inherent jurisdiction of the Court and on the recent High Court judgment in Regina v Paul Maenu and Another, Cr. App. Case No. 11 of 1998, judgment delivered on 1st May, 1998.

The court not surprisingly and quite correctly, pointed out to learned Counsel that the Appellants had not yet been arraigned and that the case had merely been adjourned for mention so that prosecution could inform the court whether the case was now ready to be dealt with.

Counsel for the Appellants however insisted that the charges be put to the Appellants. By that I presume the holding charges which the Appellants had been charged with on arrest.

The learned Magistrate obliged and had the charges read out in court and explained to the Appellants. Each pleaded not guilty to the charges as expected.

Learned Counsel then renewed his application for the charges to be “withdrawn”. I think what was meant was for the charges to be dismissed for non-appearance of the Prosecutor.

The learned Magistrate perhaps caught unexpectedly by the application wisely adjourned the matter to 1.30 pm to consider the case authority relied on, and I presume section 186(1) of the CPC.

By 1.30 pm, however, word must have been passed to legal Counsel, Mr. R. Talasasa that a case claimed to be in his carriage had been brought up for mention in the morning but that he had not attended court. When court sat at 1.30 pm, Mr. R. Talasasa for the Crown was present. Learned Counsel for the Appellants and the Appellants were also present.

Mr. Talasasa informed the court about the state of the prosecution case, that investigation had not yet been completed due to the inability of the victim to communicate as yet. No statement therefore had been taken from him. He was still in hospital. This simply meant that files from the Police had not been formally handed over to him so that he could take charge of the prosecution case, and confirm the holding charges or amend so that the Appellants could be formally arraigned.

Mr. Talasasa also explained to the court his non attendance that morning.

Learned Counsel for the Appellants however persisted on his application that the charges be dismissed for the non-appearance of the Prosecutor that morning although no orders were made by the learned Magistrate and despite the fact that Mr. Talasasa was now in court. The learned Magistrate refused the application and directed that the matter be brought up for mention again on another date.

Counsel for the Appellants disagreed and appealed. The ground of appeal reads:

“That the learned Principal Magistrate erred in law in refusing to acquit all the Appellants for want of prosecution under s. 186(1) of the Criminal Procedure Code and/or under the inherent jurisdiction of the Magistrate Court in that he misunderstood what the law is in relation to s. 186(1} of the Criminal Procedure Code and in relation to the inherent jurisdiction of the Magistrate Court and further that the said order or decision of the Principal Magistrate is per incuriam in that he refused to have consideration to R v Paul Maenu and Augustine Tuita Criminal Appeal Case No. 11 of 1998 referred to by Mr. Teutao, Advocate for the Appellants herein during the application on behalf of the Appellants for acquittal for want of prosecution before the said Principal Magistrate on 17th August, 1998.”

THE LAW:

The law in regards to the powers of the Magistrate Court where a prosecutor does not appear is contained in section 186(1) of the CPC. The position regarding inherent powers of the court and the ratio in Regina v Paul Maenu’s Case (ibid) are subsumed in section 186(1) of the CPC. The only applicable law in the circumstances of this case therefore is section 186(1) of the CPC. A correct interpretation and application of that provision therefore is crucial in this case.

Section 186(1) reads:

“If, in any case which a Magistrate’s Court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his advocate) the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit.”

THE APPELLANTS CASE:

Mr. Teutao submits that where the Prosecutor having had notice of the time and place appointed fails to appear, the court is obliged to dismiss the charge unless some reason is given whereby the court may think it proper to adjourn the hearing to another date. He takes the matter further by submitting that where the prosecutor fails to appear as in this case, no reason can be given to the court for its consideration and so the discretion can never be exercised in favour of prosecution. In such circumstances, the court is obliged to dismiss the charge because no reason can ever be given where the prosecutor never turned up in the first place.

With respect however, I must disagree. Such interpretation is not only unnecessarily restrictive but deprives the said legislation of any logical meaning. Of-course if a prosecutor or complainant does not turn up, no reason can be given or submitted to the court. I do not think the accused person or his advocate would seek to provide any reason either. Yet, the legislation includes the phrase, “unless for some reason it shall think it proper to adjourn”. Either that phrase is superfluous and unnecessary or it had been included for a purpose. In my respectful view, if the phrase is read with some care, it will be seen that the answer or explanation is contained within the phrase itself. It is for the court to determine whether there is some reason it considers proper to have the case adjourned: “unless for some reason it (the court) shall think it proper to adjourn the hearing of the case ....” Whether any reasons are given or not (of course if the prosecutor or complainant has not turned up, then no reasons can be given) makes no difference to the power of the court to decide whether for some reason it considers it proper to adjourn the case. It does not matter that the prosecutor or complainant is not present to make any submissions and the accused person or his advocate refuses to give any reasons. If the court for some reason shall think it proper to adjourn the hearing of the case then it may do so upon such terms as it thinks fit. The meaning of this phrase is crystal clear and should not be unnecessarily restricted.

APPLICATION:

Section 186(1) unfortunately for the Appellants do not and cannot be applied in the circumstances of this case. The prosecutor did not turn up in the morning, but he did turn up in the afternoon. Whilst it is appreciated that the application for dismissal was made in the morning, the learned Magistrate did not make any orders that morning. Instead he adjourned the case to 1.30 pm to enable him consider one of the case authorities cited by learned Counsel for the Appellants. Whether he did consider that case or not makes little difference to the fact that he did not make any orders or ruling on the application that morning. By then however, learned Counsel Mr. Talasasa was present. The situation provided for in section 186(1) no longer applied. Mr. Talasasa was able to provide an explanation for his non-attendance that morning, and to inform the court fully of the progress of the case. By so doing, he had fully discharged his duty to the court and fully dealt with the case. With one stone he had killed two birds at once. Nothing more was needed to be done except for the court to fix a new date for mention when the parties can appear in court again. Hopefully police investigations would have been completed by then and the parties arraigned.

It is significant that a crucial witness’s statement (that of the victim) had not yet even been obtained by the police. One would have thought that the defence would also be equally interested to have that statement made available so that at least they would be in a position to know exactly what will be alleged by prosecution against them.

The application before the learned Magistrate with respect therefore was unwarranted and misconceived.

I do note that whilst the reasons given may have not been correct, the order of the learned Magistrate however is not wrong in law and should not be interfered with.

The facts and ratio in Regina v Paul Meanu (ibid) do not apply to the facts of this case.

The appeal is dismissed.

I might add that the mere fact a prosecutor does not turn up in court does not necessarily imply that a Magistrate must dismiss the charge before him when an application is made or in the exercise of his own discretion. A Magistrate must appreciate that his discretion is to be exercised judicially. Under section 186(1) he is required to look at the circumstances of the case and to weigh the balance of justice before dismissing a charge. At the back of his mind he must bear in mind the possibility that a prosecutor may be deliberately turning up late or not turning up, so that the case is dismissed under the said section. In such situations, the answer lies not in activating section 186(1) but in disciplinary actions against the particular prosecutor. This can be done in a number of ways. Either a warning is issued or the prosecutor charged for contempt of court, or a complaint is lodged with his head of section. For police prosecutors it can be with the Commissioner of Police, and Crown Counsels with the Director of Public Prosecution. If nothing is done then perhaps the matter can be taken further with other authorities; the Honourable Chief Justice for instance.

Also I must add a caution here that acquittals under this section must be exercised with great care. There must be a very good reason or reasons for acquittals and the Magistrate must state his reasons on record when acquitting the accused person rather than the more usual order of a discharge. In other words, acquittals must be made only in exceptional cases.

In the facts of this case, even if the learned Magistrate were to give his ruling on the application that morning, the proper order in any event in my respectful view would have been a straight refusal. The facts evident in that case do not warrant a dismissal for non-appearance. The case had been adjourned for mention only. The court could easily have adjourned the case further to a later date and require prosecution to turn up and explain his non-appearance. The Appellants would not have been prejudiced in any way. They had been on bail with conditions. If the bail terms were unsatisfactory then they could easily have instructed Counsel to apply for a variation. The case cannot be classed as coming within the expression “Justice delayed is justice denied”. That phrase with respect must be qualified. Justice is denied only when delay is inordinate or excessive. Sometimes delay is inevitable, or justifiable. We live in a time zone where delay is part and parcel of our daily experience. Even when I am speaking right now, time passes and delay is already experienced. By far, it cannot be ever seriously contended that inordinate delay or excessive delay had been experienced in this case. It wasn’t the case where Mr. Talasasa had consistently been late or had not been turning up for this case. The case was only in its initial stages. There had only been two previous appearances by police prosecutors and this was to be the first time for an Officer from the DPP’s Office to turn up. There had been no previous absences by the police prosecutors or complaints of lateness or slackness. Mistakes and oversights are bound to happen. I ask should such a mere oversight justify the dismissal and acquittal of the accused persons. In my respectful view a resounding no. Anything to the contrary would have worked injustice than anything else.

Further, the facts of the case are very serious. A persons life had been severely threatened so much so that even at that particular time, the victim was not yet able to give his crucial statement to the police. Also this was a case which involved a group of persons as an aggravating feature. Further, it should be noted that when the matter was attended to by police, there was evidence that much security had to be provided for the victim’s safety even at the hospital. When these factors are taken into account, a dismissal and acquittal with respect cannot be the proper orders for non-appearance by the prosecutor.

Finally, courts must be wary of not sacrificing the substance and merits of a case for mere procedural blunders and oversights.

ORDER OF THE COURT:

APPEAL DISMISSED.

ALBERT R. PALMER
THE COURT.