Regina v Belo [1999] SBHC 106; HC-CRAC 126 of 1999 (22 October 1999)

HIGH COURT OF SOLOMON ISLANDS<

Criminal Appeal Case Number 126 of 1999

BETWEEN

lass="Mso="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> REGINA

AND

ROBERT BELO & OTHERS

High Court of Solomon Islands
Before: Palmer J.
Criminal Appeal Case NumbeNumber 126 Of 1999

Hearing: 7 October 1999
Judgment: 22 October 1999

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R. lasasa For The Appellant
F. Waleanisia For The Respondents.

PALMER J.: This is another of those cose cases on appeal from the Magistrates’ Court which has been dismissed under section 192(1) of the Criminal Procedure Code for non-attendance by the Public Prosecutor after adjournment during trial.

The facts can be summarised as follows. The Respondents, Robert Belo, Dominic Kwaikwasi and Tom Anilafa Sipolo, made their first appearance before the Magistrates Court on or about 9^th April 1997 when application for their remand was made. This was granted and the Respondents remanded for 7 days. The very next day however, (10^th April 1997), a surprising separate application for bail was made, this time before a different magistrate, who knowingly or unknowingly, granted bail. This irregularity has been referred to by the learned judge Chief Magistrate on 15^th April 1997 when the matter next came before the court. I endorse those comments. The correct approach would have been for Defence Counsel for Robert Belo to have filed an appeal with the High Court against the decision of 9^th April 1999. This requires vigilance on the part of Magistrates to ensure their courts are not subject to abuse by Counsels who may knowingly or unknowingly, act in an improper manner. The Magistrate presiding on 10^th April 1997 should never have entertained Defence Counsel’s application for bail. Instead he should have required him to file appeal or to wait until the next adjournment date before dealing with that application.

Bail was granted for Robert Belo on 10^th April 1997 and bail for the other two accused on 15th April 1997. Further adjournments were made for 28 April 1997, 19 May 1997, 23 June 1997, 9 July 1997, 28 July 1997 and 25 August 1997. On 25th August 1997, the defendants were arraigned. They had been charged with the offence of attempt to commit arson contrary to section 313(a) of the Penal Code. Each entered pleas of not guilty. Prosecuting Counsel Mr Talasasa, (who was in charge of the case and made first appearance that time) then advised presiding Magistrate in the usual manner as to the number of witnesses he would call and his time estimate of length of trial. Learned Counsel also advised presiding Magistrate of his unavailability for trial during last week of October 1997. Defence Counsel also indicated when he would not be available for trial. Case was then listed for trial from 4th to 10th November 1997. Thereafter case was adjourned to 24 September 1997 for mention. On said date, Police Prosecutor, Sgt Masiah appeared. Case was further adjourned to 22nd October 1997. Mr Talasasa appeared. On said date, parties were advised by Court Clerk that the Magistrate who had Carriage of case was not available and would not be present in the country to hold trial on dates fixed. The case was adjourned to 13 November 1997 but called instead on 14 November 1997. Mr Talasasa did not attend, reason given was that he was sick. Counsel for the defendants also did not attend, reason given was that he was on leave at said time. Case was further adjourned to 9 December 1997, for mention. On said date new trial date was fixed for 26th February 1998 at 10.00 a.m.; some two and a half months in advance. Only one day was set aside by presiding Magistrate for trial forgetting he had been previously told it would be longer than that. That time estimate therefore was an under-estimate.

On 9 January 1998, case was called for mention. A police prosecutor, Chief Inspector Sikwa’ae appeared on behalf of Prosecution. The trial was confirmed for hearing on 26 February 1998 at 10.00 a.m. On said date, when case was called, all three accused and their legal Counsel were present, but not Legal Counsel Mr Talasasa for Prosecution. Presiding Magistrate stood case down to enable Prosecution clarify what position was regarding unavailability of Prosecutor who had carriage of the case. Unfortunately nobody could assist or knew what to do in such circumstances. When court re-convened, Counsel for defendants made application for the charges against the defendants to be dismissed for want of prosecution under section 187(l) of the CPC (Revised edition). Presiding magistrate granted application but under section 192(l) as appropriate provision to be applied.

Appellant now comes to Court se to have the order of the Magistrate’s Court set aside as e as erroneous in law or fact and to have the matter remitted to a differently constituted Magistrate’s Court.

Two grounds were relied on:

“(1) &nbspany che e Lea Learned Chief Magistrate shoulshould have weighed the seriousness of the offence as against the unexplained absence of the Prosecution and exercised the discretion to adjourn the matter further still, perhaps for the last time. This is so in ensuring that Justice is not only for the benefit of the accused but for all.

(2) &nbbsp; The learned Chief M trgistrate’sate’s comments when ordering the dismissal of the charges, “........ there must be finality to a case, Justice delayed is Justice denied,” is ill-conceived and an over-reaction of the circumstances in that as Police investigations completed in May 1997 the matter was set for mention on 23 June 1997. The next date for trial was set for the 4th - 10th November 1997 on which date the Chief Magistrate was out of the country and so the trial did not proceed. The matter was further adjourned on that basis.”

Ground (1) refers to the failure e presiding Magistrate to take into account the seriousnesssness of the offence as against the non-attendance of the Prosecutor and thereby committed an error of law in the exercise of his discretion. Had he taken that factor into account he would have ruled in favour of an adjournment rather than a dismissal.

With respect however, I am not sied the omission alleged even if true, was one that went tont to jurisdiction. I agree the seriousness of the offence was a relevant factor to be considered by the learned Magistrate and to be weighed against the non-attendance of the Prosecutor. Any omissions to take that factor into account or attach Sufficient Weight would be erroneous. But I am not satisfied that error would be one that goes to jurisdiction. It would only have amounted to an error within jurisdiction and not warrant intervention by this court. The fact the presiding Magistrate took that factor into account and attached sufficient weight to it, does not guarantee that an adjournment would be granted. Even if the presiding Magistrate took it into account, he could still dismiss the charges for non-attendance by the Prosecutor. It was within his discretion to dismiss the charges as it is to grant an adjournment in such circumstances. I find with respect no error of law committed by the presiding Magistrate in the situation. The Appellant may feel the presiding Magistrate should have exercised his discretion in favour of an adjournment, rather than a dismissal. Another Magistrate may have given the Prosecutor a final chance and that would have been equally valid. In this instance, the learned Magistrate had exercised his discretion in favour of a dismissal. Even if he had omitted to take that factor into account in the exercise of his discretion, that was still a valid exercise of his discretion. I am not satisfied an error of law had been committed that would warrant this Court’s intervention. Ground 1 is dismissed.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The second ground relied on pertains toy; that delay in the circumstances was not inordinate or or excessive in that this was only the second attempt at setting a trial date and therefore the expression “Justice delayed is Justice denied” was “ill-conceived and an over-reaction in the circumstances”.

lass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Unfortunately whilst that might be a relevant factor to take into accou the circumstances, its s omission, if any, is not fatal to the order issued by the learned Magistrate. I accept the learned Magistrate could as easily have decided to adjourn the matter taking into account the fact the case was a felony and that delay was not excessive or inordinate, unfortunately, those are matters within his sole discretion to be considered in the circumstances where no appearance has been entered by the Prosecution. The power of the court to dismiss the charge is activated when no appearance is entered by the Public Prosecutor and the decision whether to dismiss the charge or not in the circumstances, can only be exercised by the presiding Magistrate in his deliberate Judgement. The mere fact a Prosecutor does not appear in court, does not necessarily mean the power must be exercised in favour of the accused. The court has a clear discretion to exercise; “.... the court may dismiss the charge .....” It should consider inter alia the circumstances of the case carefully, the history of events, whether there has been delay, the seriousness of the charge(s) and the balance of justice, before deciding where its discretion would fall. The court must bear in mind the consequences of its order, which indirectly, might be contributing to the delay of justice and thereby denying justice, in cases where it is open to Prosecution to have the accused re-charged for the same offence. It is vital therefore for the court to exercise its discretion with care and not to rush to uphold an application to have the charge dismissed for want of prosecution straight-away.

The same reasoning referred to ound (1) above equally applies to the second ground; that ihat its omission does not amount to an error that goes to jurisdiction; only within jurisdiction. Even if the presiding Magistrate took delay into account, he is not obliged to grant an adjournment. It is a matter within his discretion to exercise. He can equally decide to exclude that factor in the exercise of his discretion. In the facts of this case, it has never been suggested that he did not take this factor into account. To the contrary. He took that factor into account before exercising his discretion. What weight he attaches is a matter for him and him alone to exercise. He may have wrongly attached weight or wrongly excluded that factor, but that does not make the exercise of his discretion any less valid. Ground (2) should also be dismissed.

In Regina v. Elizah D. Muala CRAC No. 17 of 1994, judgement delivered 6 June 1994 (“Muala’s Case”) the accused had been charged with the offence of larceny by servant. The case was listed for arraignment on 28 February 1994 at 8.00 a.m. The accused appeared with his Counsel, when case was called at about 9.30 a.m. no one appeared for prosecution. The presiding Magistrate dismissed the charge under section 187(2) of the CPC (1996 Revised Edition) and discharged the accused. The accused could be re-charged in that case.

In , CRAC No. 11 of 1998, judgement deliverlivered 1st May 1998, the presiding Magistrate ordered dismissal of the charges against the two defendants (Paul Maenu’u and Augustine Tuita) and acquitted them of the offences charged, for non appearance of the Public Prosecutor. His Lordship Awich J. held, the order of dismissal against Augustine Tuita to be good but not the order of acquittal. The reason being, Tuita had not yet been arraigned. The only order open to the Magistrate was a discharge; that is, the effect of dismissal for want of prosecution in those circumstances did not bar subsequent proceedings on the same charge. The order of dismissal in Tuita’s case was similar to Muala’s case (ibid).

Paul Maenu’us case however was different. He had been proparraigned and was availablelable for trial on 17th March 1998. The non-appearance of the Prosecutor on said trial date meant no evidence was to be adduced against the accused and he was entitled to an acquittal. His Lordship found no error of law that would warrant his intervention. The order of acquittal was proper therefore in the circumstances.

In Hudson Maenu & Others -v- Regina CRAC No. 23 of 1998, judgment delivered 28th September 1998, the presiding Magistrate declined to dismiss the charges against the defendants under section 187(l) of the CPC for non-appearance of the Prosecutor. The case had been adjourned to 17 August 1998 for mention so that court could be advised if arraignment could be taken. The defendants had been released on bail in the meantime. The Prosecutor had not appeared when case was called that morning. Counsel for the Defendants accordingly applied to have charges dismissed. Counsel went so far as to insist that charges be put to the defendants when these had not yet been finalised as was clear on the court records. The case was not yet ready for trial. The court nevertheless obliged, when it was clear it was inappropriate in the circumstances. Court adjourned to 1.30 p.m. to enable presiding Magistrate consider a case authority [sic] relied on before passing its ruling. By then the Public Prosecutor made appearance. Court properly refused application the exercise of its discretion. Note it would have been open to the court to have the charges against the defendants dismissed for want of prosecution when it gave its ruling at 1.30 p.m. in the afternoon irrespective of appearance of the Prosecutor. The court however declined to exercise its discretion in favour of the defendants and properly so. But even if dismissal had been made, that would not have been a bar to subsequent proceedings against the defendants for the same offence.

The case of Regina v. Niger Pitisopa CRAC No. 120 of 1999 judgement delivered 2nd September 1999 is a somewhat interesting case. The charges were dismissed by the presiding Magistrate under section 192(1) of the CPC for non-appearance of the Public Prosecutor. The facts in that case however were different from other cases. It was a part heard case. Of crucial significance, was the fact that a key prosecution witness, the victim herself, had given evidence plus three other witnesses (see page 3 of judgment). When court convened on 9th November 1998, after adjournment from 2nd November 1998, the Public Prosecutor was not present. Defence Counsel made application to have charge dismissed for want of prosecution under section 192(l) of the CPC (1996 Revised Edition). In its haste to dismiss charge for non-appearance of the Public Prosecutor, the presiding Magistrate overlooked a crucial factor. Evidence had already been tendered and therefore the court was obliged to rule on that evidence whether it was sufficient to put the Defendant to his defence or not. This was not the same situation as Paul Maenu'u's Case (ibid). Evidence had actually been adduced and received in support of the charge and was lawfully before the presiding Magistrate for his consideration. If the court found there was sufficient evidence it would have been obliged to put the defendant to his defence irrespective of the fact the Prosecutor was not present. If the court found there was insufficient evidence to require the defendant to make a defence, the charge should be dismissed and the defendant acquitted It was akin to the situation where prosecution had closed its case at that point of time. The only difference is that whilst Prosecution had not closed its case and had other witnesses to be called, at least four witnesses had been called. It wasn't the case where there was no evidence in support of the charge before the presiding Magistrate.

The presiding Magist nevertheless dismissed charge for want of prosecution and was upheld on appeal.peal. The question whether subsequent proceedings could be taken against the defendant for the same offence in those peculiar circumstances will have to wait until another day (if it ever arises).

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> In this case, the defendants had been arraigned on 25th August 1997 ntered pleas of not guilty.ilty. They came ready for trial on 26th February 1998. The Public Prosecutor did not appear to proffer evidence against the defendants. They were thus entitled to have their charges dismissed for want of prosecution. Their situation is identical in my respectful view to Paul Maenu'u's Case. Whether subsequent proceedings could be taken against the defendant on the same offences would have to wait for another day if and when the occasion arises, but it would seem to have little chance of succeeding in the circumstances of this case.

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OF THE COURT:

1. DISMISS APPEAL.

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THE COURT

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