Regina v Maenu'u [1998] SBHC 80; HCSI-CRC 11 of 1998 (1 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 11 of 1998

REGINA

v

PAUL MAENU’U, AUGUSTINE TUITA

High Court of Solomon Islands
(LUNG OLE-A WICH, J)
Criminal Appeal Case No. 11 of 1998

Hearing: 23rd April 1998
Judgment: 1st May 1998

R. Talasasa for Crown, Appellant
R. Teutao for Respondents

JUDGMENT

(LUNGOLE-A WICH J)

The Appeal and Grounds

The Crown, represented by learned counsel Mr. R. Talasasa, for the DPP, has appealed against the order of His Worship, D. Tigulu, Deputy Chief Magistrate, made on 17.3.1998. The orders stated: “I therefore grant application for dismissal of charges for want of prosecution. The accused are acquitted.” The 17.3.1998 was a date to which trial was adjourned. The first date of trial was 16.2.1998. On that day the presiding magistrate was not available; he had to attend to his son who was ill in hospital and so the case was adjourned to 23.2.1998 for mention. On the mention date the case was “Adjourned” for trial on 17.3.1998 at 10 am.

On the 17.3.1998 the court sat at 10.22 am. The two respondents, then accused, and their counsel were in Court. Learned Director of Public Prosecution, Mr. F. Mwanesalua, was also in court, but not to present this case; he may have been at court for other cases. He, however, informed the Court that Mr. Talasasa, of his office, was the counsel to represent the Crown in the prosecution of this case and that the DPP had instructed Mr. Talasasa so, the previous week. The Magistrate then made it known in court that about 9.50 am, Mr. Talasasa telephoned (the Clerk of Court) to say that he, Mr. Talasasa, was on his way to court. The magistrate then proceeded to ask the clerk to call out for Mr. Talasasa. Upon the report of the clerk that there was, “still no sign of the Prosecutor”, the magistrate made the dismissal and acquittal orders stated above.

Mr. Talasasa’s grounds of appeal were; and I quote:

“1.That the Deputy Chief Magistrate having considered the fact that the Prosecutor taking carriage of the matter had passed the message to Deputy Chief Magistrate at 9:40 am on 17 March 1998 that he had additional charges to lay and would appear in Court late, should have had the courtesy to await the said Prosecutor’s arrival. The trial was fixed for 10 am and the Prosecutor reached Court house at about 10:30 am after leaving the office at 10:10 am having to negotiate the Traffic jam along Mendana Avenue.

2.That the Deputy Chief Magistrate erred in law when he ordered the accused acquittal pursuant to Sections 186(1) and 191(1) of the Criminal Procedure Code. The said provisions provide for dismissal of charges and not acquittals of accused persons. Hence, there is no bar to re-charging the respondents on a fresh complaint for the same set of facts.

That the Petitioner seeks the following Order:

(i) That the order by the Magistrate of the acquittal of the Respondents in the said matter for want of prosecution be set aside and be substituted with an order to remit the said for re-hearing at the Magistrate’s Court.”

This Court is asked to uphold the grounds, and set aside the Orders made by the magistrate, and to order “re-hearing”, which I take to mean retrial.

Submissions

In his submission in support of ground 1, Mr. Talasasa urged the court to consider that there had been several adjournments, most were because of non-availability of the presiding magistrate, and some were at the instance of the accused. His other submission which I found surprising was that this case, compared to others, progressed too fast from 3.11.1997 to 17.3.1998. Mr. Talasasa submitted that the progress up to conclusion was “less than 5 months”, it was too fast. I would have thought speedy trial was a central requirement of ensuring justice, the Constitution of Solomon Islands in section 5(2) bears that out. It will be beneficial to the process of criminal justice in Solomon Islands if delays now being encountered in the prosecution and hearings of appeals in criminal cases are not regarded as the normal course of criminal justice, speedy trial is disadvantageous to the Crown. I would have thought that these days there are delays because of various obstacles now encountered by prosecutors, some of the obstacles, not of their making, and that the position will progressively improve.

Mr. Talasasa’s apportionment of blame to the presiding magistrate and the defence is unwarranted. The case was called in court on 10 occasions, but on the first 6 occasions it was called simply for mention, not for trial. On one occasion, also a mention occasion, defence counsel was ill and asked for permission to go to hospital; on another he informed the court that he had a case before the High Court. Unlike Mr. Talasasa, defence counsel was in court on both occasions to ask for adjournment. On the three occasions on which the magistrate was not available, two were on mention dates, trial was not expected, a clerk was duly instructed by authority of section 55 of the Criminal Procedure Code (CPC), to adjourn the mentions. Mr. Talasasa assisted the court with that point of law when the court raised it, I am grateful for his useful assistance. On the first occasion for trial, the magistrate had urgent personal situation to attend to; his son was ill in hospital and required his attending. No blame can be apportioned to the magistrate at all. Moreover, in my view, if there was found to be failure on the part of the prosecutor to live up to expectation, it would be no justification at all for him to point to a fault on the part of the magistrate or accused and his counsel. His fault would not be explained away by the fault of someone else. In this case if I compare what the defence did with what Mr. Talasasa did, it would be seen that the defence acted far more responsibly. Counsel for defence attended court on 27.1.1998, even if only to inform court that he was to attend at hospital. On another occasion he attended the court to inform it of his commitment at the High Court, a commitment which must take precedence over commitment at magistrates’ court. The prosecutor simply telephoned 20 minutes (by his own words, at 9.40 am) before trial to say he was on his way, no reason was given for being late. On appeal it was stated that Mr. Talasasa was, apart from traffic jam on the road, delayed because he was preparing amended charge. From the record it is not clear whether that part of the message was conveyed to the magistrate. I need not consider those explanations. I may comment only that one would have expected Mr. Talasasa to attend court early anyway to apply for a short adjournment to enable him to complete the preparation of an intended amendment to the charge sheet. The explanation of traffic jam having prevented Mr. Talasasa arriving at court earlier than in 50 minutes (he travelled from 9.40 am to 10.30 am by his words) does not deserve detailed consideration; it is unacceptable. He ought to have taken traffic jam into account in his time for travelling to court if that was his reason for the delay. I do not think it was.

Inherent Power of Court

Before I consider S.186 of the Criminal Procedure Code, I shall mention that all courts have inherent jurisdiction to control proceedings before them, so as to maintain confidence in courts. In my view the trial magistrate had, on the facts of this case, the jurisdiction to act to show disapproval of the attitude adopted by the prosecutor that the prosecutor could simply telephone a few minutes before the court was to sit and thereafter attend court at the time of his choosing. Fortunately that attitude is not the general trend in the esteemed chambers of the DPP; for instance, the DPP himself, who was present within the Court premises, felt duty bound, even if he did not have carriage of the case, to attend court just to inform the court of whatever little he knew about the expected attendance of Mr. Talasasa to present the case. That sense of duty is commendable, if followed by others this type of appeal will be rare indeed, saving time for appeals on merits of cases. In my view, the magistrate properly exercised his discretion to discontinue the proceedings instead of wait for a prosecutor who unilaterally decided that he would attend court at the time of his choosing.

Power Under S: 186 of the Criminal Procedure Code (CPC)

Section 186 of the Criminal Procedure Code suppliments and puts the inherent power of the court in legislation. It reads:

(1) 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.

(2) The expression “advocate” in this section and in sections 188 and 190 shall in relation to a complainant include a public prosecutor.

On 17.3.1998 both, accused Paul Maenu’u, named as accused 1 in the record, and accused Augustine Tuita, named as accused 2, were in court. Their counsel was also present and ready to proceed. We have to note, however, that the positions of the two accused are different. Paul Maenu’u was arraigned on 11.11.1997 and pleaded not guilty to the three charges against him alone on that date. He was in court again alone on 17.11.1997 for mention. On 20.11.1998 the court was informed that the accused in court was a co-accused. I take it that the accused was Augustine Tuita, it is not clear from the record. If the accused was Tuita, then he certainly was not arraigned, on that first occasion he was brought to court, he was not asked to plead and did not plead. The case was simply mentioned, and adjourned to 25.11.1997 for further mention. On the adjourned date, 25.11.1997 (recorded as 1998), both accused were in Court. There is no record that Tuita was asked to plead or that he pleaded to the charges. On the 7 other occasions in court, including the 17.3.1998 when the magistrate made the order dismissing the charges and acquitting both accused, there have been no records that Tuita was asked to plead or that he pleaded to the charges. So the position of Tuita was that he was brought to court and treated as co-accused, but was never asked to plead until the magistrate ordered the charges dismissed and acquitted him. The position of Maenu’u was that by 17.3.1998, he had been arraigned, and pleaded not guilty to the three charges in the three counts. It was at the stage when Maenu’u, by his plea of not guilty, had put the prosecution to proof of all the material facts by evidence to be adduced.

Tuita was never arraigned. The technical meaning of arraignment being, 1. calling the prisoner produced, by the name in the charge, to confirm his identity, 2. reading and explaining the charge to him and asking him to plead, and 3. recording the plea of the accused. For some time the consequence of failing to have accused’s plea taken was that all the proceedings that followed from the point when arraignment would have taken place was regarded as mistrial and void. It was required that the plea was to come from the accused himself except in a few instances such as when accused was deaf and dumb, insane or refused to plead. That was the rule in Ellis v R (1973) 57 Cr App Rep 571. In the case, the clerk in court informed the accused that he was charged with the offence of burglary and theft, and explained the particulars including theft of £1,600. The clerk then said, “Ellis, how do you plead, guilty or not guilty?” Defence counsel intervened at that point saying, “May I assist here, he wishes to plead guilty to the theft of £380, but not as charged”. He also added that accused would plead guilty to burglary. The proceeding then continued and accused was convicted on a plea of guilty. The Court of Appeal quashed the conviction because the plea of guilty did not come from the accused himself so there was no plea. The law in Ellis v R has been modified. The correct position is now in Williams (Roy) v R [1977] 1 All ER 874. A plea of guilty must still come from the accused himself otherwise what follows is void. A plea of not guilty must also come from the accused, but when a trial has proceeded as if accused had pleaded not guilty, and he in fact had intended to plead not guilty, failure to take the plea will not vitiate the trial if the plea of not guilty was vicariously offered, tacitly conveyed or waived or a formal arraignment was implied. In William’s case, accused was called on and entered the dock. The clerk asked whether he was Roy Brian Williams. He acknowledged his identity. At that stage, Crown Counsel asked for adjournment because one of his witnesses was not present. Defence counsel consented. The clerk did not put the charge of dishonestly handling stolen goods to the accused, but the record read, “adjourned to a date to be fixed. Plea NG.” When trial resumed it was before a different judge and a different clerk was in court. The clerk assumed, from the record that accused had pleaded not guilty, although the clerk still called out accused’s name and had his identity confirmed. After empanelling the jury, he read out the charge and particulars of the charge, as if addressed to the jury. The trial then proceeded, in fact, without the plea of the accused having been taken. He was convicted. Accused appealed, contending that his trial was a mistrial and void. He relied on Ellis v R, of course. The appeal was dismissed because it was clear he intended to plead not guilty and he had waived plea taking, in the circumstances a plea of guilty could be implied. The trial was not a mistrial, the conviction was upheld.

In this case, there are no facts from which to imply that Tuita intended to plead not guilty. In fact there is no indication whatsoever that the charge was ever put to him. His “trial” was a complete mistrial. The order dismissing the charges against him was, however, correct because the wording of section 186 of the CPC requires only that an accused has been brought to court on a charge that the court is competent to try; it does not require that the trial commences before the court dismisses for want of attendance by the complainant or his advocate. The order of acquittal however, was incompetent; the trial magistrate had no power to acquit Tuita following from the dismissal of the charge. Acquittal can only follow from the fact that accused has been arraigned and has pleaded not guilty. In this case Tuita had not pleaded guilty. I quash the order acquitting Tuita, but confirm the order dismissing the charges. The prosecutor may recharge Tuita. In that event I must clarify that the power of the court to demand to hear the prosecution on the question of why he did not attend court is not taken away by this judgment. I add that the judgment does not affect the inherent jurisdiction of the trial court to watch out for prosecution which may be oppressive. I have not touched on the law of oppressive and prejudicial trials. The appeal of the Crown against the order of the magistrate dismissing the charges against Tuita is dismissed, the appeal against acquittal of Tuita is allowed.

The accused Maenu’u was arraigned on 11.11.1997 and pleaded not guilty. He attended court on 9 (nine) other occasions, the last and the third last being for trial. On the first occasion for trial, the magistrate was away to see his son in hospital, the second, occasion was when the prosecuting counsel did not attend. I have already said that the magistrate was right to discontinue the trial by dismissing the charges. Was he right to order acquittal of Maenu’u? It is my view that on the facts of this case he was right. Maenu’u had pleaded not guilty, was in court waiting for the prosecution to present proof of the charges. The prosecutor was not in attendance in circumstances which the magistrate decided was unsatisfactory. The consequence was that there was no one to offer evidence against Maenu’u. He was entitled to acquittal. I have considered the case of R v Elizah Muala HC Cr App 17 of 1994, cited by counsel, Mr. Teutao. In the case, Sir John Muria CJ decided appeal on the question of dismissal of charges by reason of section 186 of the CPC and the order discharging the accused that followed the dismissal of the charge. The Chief Justice decided that the magistrate was required mandatorily to dismiss the charge unless good reason was given in court, as the prosecutor was not in court, no reason, let alone good reason was given, so the magistrate was right to dismiss the charge as he was bound to. The case is the same as this one in as far as no good reason was given to court so that the court would not dismiss the charge. It is different from this because the order that followed dismissal of the case was order of discharge, not acquittal as in this case. The appeal of the Crown against Paul Maenu’u fails totally and is dismissed.

Delivered this 1st day of May 1998
At the High Court,
Honiara

Sam Lungole-Awich
Judge