Regina v Pitisopa [1999] SBHC 135; HC-CRAC 120 of 1999 (2 September 1999)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case. No. 120 of 1999

REGINA

-v-

NIGER PITISOPA

In the High Court of Solomon Islands
(FRANK KABUI, J)

Hearing: 26th August 1999
Judgment: 2nd September 1999

R. Talasasa for the Appellant
G. Suri for the Respondent

JUDGMENT

(Frank Kabui J): This is an appeal by the learned Director of Public Prosecutions against an Order for dismissal entered in favour of the Respondent by the Honiara Magistrate Court under section 191 (now section 192) of the Criminal Procedure Code Act (Cap. 7) on 9th November, 1998. The grounds of appeal are:-

(1) In dismissing the charges and thereby acquitting the respondent the presiding Magistrate failed to adequately consider the circumstances of the case and to weigh the balance of Justice as required by S. 186(1), Criminal Procedure Code. The presiding magistrate only considered the case in favour of the Respondent and that is not justice.

Furthermore, the Presiding Magistrate should have considered the sensitivity of the case and its seriousness and not order an automatic dismissal but to exercise his discretion judicially and adjourn the matter to the next day and call for the Prosecutor to show cause. The matter had been fixed for trial for the 9th and 10th day of November 1998, at 1:30 pm on each day. The Prosecution case was to be closed on the 9th day of November.

(2) The expression “Justice delayed is justice denied” was used loosely when making the order for dismissal in that the hearing of the case had proceeded on 5, 6 and 7 October 1998. On 7 November the hearing was fixed to continue on 26 October at 1:30 pm but had to be adjourned for mention on 2 November, as Counsel for Defence had stomach complaints in the morning of 26 October. On 2 November the next hearing dates of the 9th and 10th at 1:30 pm each day were fixed. Justice therefore could not be said to be denied as delay to proceed with the hearing was not inordinate or excessive at the time of the order.

The Charges against the Respondent in the Magistrate Court

The Respondent was charged with two counts of indecent assault, contrary to section 133(1) (now section 141) of the Penal Code Act (Cap. 26), alleged to have been committed against the Complainant in July and December, 1995 respectively in Honiara, Solomon Islands. The Respondent first appeared before the Honiara Magistrate Court on 30th April, 1998, 28 months after the alleged offence was committed by the Respondent.

Number of Adjournments

The Prosecutor in this case in the Magistrate Court was Mr. R. B. Talasasa. At the first hearing of the case in the Magistrate Court, the Respondent pleaded not guilty to all the counts preferred against him. The case was adjourned for mention on 20th May, 1998 at 9 am. Trial was then fixed for the 20th to 22nd May, 1998 at 10 am. On the 20th May, 1998, the case was adjourned again because Mr. R. B. Talasasa was involved in a murder trial in the High Court . The case was then adjourned for mention on 8th June, 1998 at 9 am at which time, a new date for the trial of the Respondent was to be fixed. On the 8th June, 1998, the case was further adjourned to 15th June, 1998 because the Magistrate was not available. However, Mr. R. B. Talasasa told the Court Clerk that he would not be available on the 15th June, 1998 but would agree to any date except 26th to 30th June and 10th to 20th July, 1998. The case was again adjourned on 15th June, 1998 for mention on 13th July, 1998 but trial was to commence on 5th August 1998. The next hearing date was 5th August, 1998. However, the case was again adjourned due to the Magistrate not being sure whether or not he had jurisdiction to hear the case. The case was then adjourned to 22nd to 23rd September, 1998 at 1:30 pm. On 22nd September, 1998, the case was adjourned again because Mr. Suri Counsel for the Respondent was tied up in the High Court. The next date of hearing was 24th September, 1998 for mention only. On that date, the trial date was fixed for 5th to 6th and 7th September, 1998 at 10 am. The trial proper commenced on 5th October, 1998. The hearing was adjourned to 6th October, 1998 at 10 am because Mr. R. B. had an upset stomach and had to go home. The hearing resumed on 6th October, 1998 and again adjourned to 7th October 1998. The hearing resumed on 7th October, 1998 but was adjourned again at 12 mid-day to 26th October, 1998 at 1:30 pm and 27th October 1998 at 10 am. On resuming on 26th October, 1998, the hearing was adjourned again to 2nd November 1998 for mention because Mr. Suri this time had a stomach upset. On resuming on 2nd November, 1998, the next date of hearing was fixed for 9th to 10th November, 1998 at 1:30 pm each day. The case was then adjourned. On resumption of hearing on 9th November, 1998, Mr. R. B. Talasasa was not present. Mr. Suri, Counsel for the Respondent then applied under section 191 (now 192) of the Criminal Procedure Code Act (Cap. 7) (the Act) for the case to be dismissed. At 1:48 pm the Magistrate adjourned the case to check with the Court Clerk to find out in case Mr. Talasasa had sent any message to the Court explaining his absence. The Magistrate resumed at 1:50 pm saying that no explanation had been received from Mr. R. B. Talasasa for his absence. Mr. Suri, Counsel for the Respondent then informed the Court that he had spoken to Mr. Talasasa during the brief Court adjournment and Mr. R. B. Talasasa told him that he was having his rest at home and would go to his Office at 3 pm. Mr. Suri then renewed his application under section 191 (now section 192) of the Criminal Procedure Code Act for a dismissal of the case. The Magistrate accepted Mr. Suri’s application and dismissed the case accordingly with costs.

The Appellant’s Case

Mr. Talasasa’s main argument was that the hearing of the case was already half-way when it was dismissed by the Magistrate. He said he had already called 4 Prosecution witnesses and only had to call 3 more witnesses when the case was dismissed by the Magistrate. He said that taking into account all the circumstances of the case, the Magistrate in exercising his discretion should not have dismissed the case. He said the Magistrate failed to consider the circumstances of the case and to weigh the balance of justice as required under section 186 (now section 187) of the Act. He said the Magistrate should not have applied section 191 (now section 192) of the Act because the Complainant in this case was the Crown’s first witness who had already given her evidence in the trial unlike under section 186 (now section 187) above where the Magistrate could dismiss the charge against the accused if the Complainant or his advocate did not appear in Court. He said the word “and” in section 191 (now 192) of the Act was significant because it emphasised the requirement that the Complainant must appear or else the charge against the accused could be dismissed with costs. In other words, the word “advocate” does not appear in section 191 (now section 192) of the Act so that this section could be invoked if the Crown Prosecutor did not appear as was the case in this case. Shortly put, this section would not apply to situations where the Crown Prosecutor through the DPP was the prosecuting authority in place of a private prosecution.

The next point argued by Mr. Talasasa was that the remarks made by the Magistrate in the Court record that Mr. Talasasa did not seem to be serious about his case was wrong in that the Magistrate’s decision should have been confined to the facts of this case on that date of dismissal and not to be influenced by any previous observations in the same trial. In other words, the exercise of the Magistrate’s discretion must be done judicially. Mr. Talasasa referred the Court to R v Hudson Maenu’u & Others (Criminal Appeal Case No. 23/98) where Palmer, J. made accommodating remarks about applications for dismissal of charges under section 186 (now section 187) of the Criminal Procedure Code Act. The last point made by Mr. Talasasa was ground 2 of the appeal. That is that justice denied could only be justified by inordinate or excessive delay. In this case, he said, the delay was not inordinate or excessive because previous adjournments of the trial were not totally the fault of the Prosecutor. Mr. Talasasa again referred to the judgment by Palmer, J. in R v Hudson Maenu’u & Others referred to above as supporting his point.

The Respondent’s Case

In response to Mr. Talasasa’s submissions, Mr. Suri pointed out that the approach taken by the High Court in R v Elizah Muala (Criminal Appeal No. 17/94), R v Paul Maenu’u & Augustine Tuita (Criminal Appeal No. 11/98 and R v Hudson Maenu’u & Others Criminal Appeal No. 23/98 was not the same and therefore the need for an uniform approach was necessary.

However, he maintained that the wording of section 186 (now section 187) of the Act and section 191 (now section 192) of the Act was not the same. He pointed out that the words “unless for some reason” as used in section 186 (now section 187) above were not present in section 191 (now section 192). That is, the Magistrate could dismiss the charge under section 191 (now section 192) on the ground of no-appearance of the complainant or the public prosecutor and would not necessarily look for some other reason for adjournment of the trial. He also made the point that section 191 (now section 192) used the words “the hearing or further hearing” which would mean, he said, part hearing of a case. He therefore argued that the Magistrate’s discretion in section 191 (now section 192) was wider than the Magistrate’s discretion in section 186 (now section 187) of the Act. He said if it was otherwise Parliament would have said so as in section 186 (now section 187). Finally, Mr. Suri’s response to ground 2 of the Appeal was that justice could also be denied by inexcusable delay of the Prosecutor depending upon the circumstances of the case as in this case. In this case, he said, the Respondent was denied justice by the unexplained absence of Mr. Talasasa. In other words, the delay of the case was inexcusable on the part of Mr. Talasasa.

Explanation by the Prosecutor for failing to appear in Court on 9th November, 1998

It is not disputed that the trial had been in progress half-way when it was adjourned on 2nd November 1998. According to the Court record, no reason was given for this adjournment. The next dates for the continuation of the hearing were 9th to 10th November, 1998. It was stated in the Court record that the hearing on these dates were to commence at 1:30 pm each day. This adjournment was for 6 days. When the trial resumed at 1:30 pm on 9th November, 1998, Mr. Talasasa, the Crown Prosecutor was not present in Court to conduct his case. No reason was given for his absence. As already said, the Magistrate dismissed the case under section 191 (now section 192) of the Act.

In this Court and from the bar table, Mr. Talasasa told this Court the following. On the morning of 9th November, 1998, he had made firm arrangement with his next witness Chris Sogabule to be present at the Magistrate Court at 1:30 pm. Mr. Talasasa’s Secretary did this by telephoning Chris Sogabule on phone No. 20199 at 11:45 am. At 11:52 am Chris Sogabule called Mr. Talasasa on phone No. 23472 to confirm the hearing of the case in the afternoon. Mr. Talasasa then left for his house at Tandai, west of Honiara. Mr. Talasasa had lunch and then a short “nap”. When he woke up it was well past 1:30 pm. It was about 20 minutes to 2 O’clock in the afternoon. At 13:41 pm, he rang his wife on phone No. 21601 criticising her for not waking him up. After that he phoned the Magistrate Court on phone No. 21354 and spoke to Mr. Suri, Counsel for the Respondent. He spoke to Mr. Suri at about 13:45 pm. He told Mr. Suri that he had overslept. Mr. Suri’s response was that he could not help Mr. Talasasa and that the Magistrate Court was ruling on his application for the dismissal of the charge against his client, the Respondent. When he heard this from Mr. Suri, he felt sorry and shocked in his house. At 13:49 pm, he called the Magistrate Court Clerk again on phone No. 21354 to find out whether Chris Sogabule, his witness, was there at the Court. He spoke to Chris Sogabule and instructed him to follow the Court proceeding and let him know about the Court ruling. At 13:55 pm, he spoke to the Court Clerk again on phone No. 21354 and asked for Chris Sogabule again about the Court ruling. He now disputes the correctness of the Court record as regards what he had told Mr. Suri in his telephone conversation with him.

The Power of the Magistrate to dismiss a charge

Clearly, there is no doubt about the power of the Magistrate to dismiss a charge against the accused on the non-appearance of a Complainant. Section 191 (now section 192) states:-

“(1) If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit.

(2) If the accused person who has not appeared as aforesaid is charged with felony, or if the court, in its discretion, refrains from convicting the accused in his absence, the court shall issue a warrant for the apprehension of the accused person and cause him to be brought before the court.”

Clearly, the Magistrate does have a discretion to dismiss a charge against the accused under this section. The case for the Appellant however, is that this discretion should have been exercised in favour of Mr. Talasasa the Crown Prosecutor because of the sensitivity and seriousness of the case.

Consideration of arguments by Counsel on both sides

I think the effect of Mr. Talasasa’s first point of argument is that section 191 (now section 192) of the Act does not envisage the appearance of a Crown Prosecutor and therefore the non-appearance of a Crown Prosecutor at a hearing of a case following an adjournment does not justify an order for dismissal by the Magistrate unless the Complainant himself does not appear in which case the Magistrate may dismiss the charge against the accused. This is why according to Mr. Talasasa, the Magistrate should not have invoked section 191 (now section 192) of the Act and should have considered section 186 (now section 187) of the Act and granted a further adjournment than dismissing the case as the Magistrate did under section 191 (now section 192) of the Act. True, the word “advocate” in terms of section 186(2) (now section 187(2)) of the Act does not appear in the wording of section 191 (now section 192) of the Act but it does not prevent the Crown Prosecutor conducting a case under that section. I think the omission of the word “Prosecutor” in the section 191 (now section 192) unlike in section 186(2) (now section 187(2)) in relation to sections 188 and 190 (now sections 189 and 191) of the Act was a mistake in drafting because if the Crown Prosecutor is conducting the Crown case from the beginning then he must necessarily conclude it. There would obviously be adjournments in between the commencement of the case and its conclusion. The word “and” in section 191 (now section 191) above therefore has no significance at all where the Crown Prosecutor is in charge of the prosecution. Mr. Talasasa’s argument does however make sense if the case was a private prosecution conducted by the Complainant himself. But this was not the case here. There is however, another reason. Section 91 of the Constitution which establishes the office of the DPP gives the DPP the power to institute criminal proceedings against any person in Solomon Islands. Section 191 (now section 192) of the Act must therefore be read in the light of section 91 of the Constitution if there is a conflict. I am therefore of the view that where the Crown Prosecutor is absent in Court when the case is called up, the Magistrate may dismiss the charge against the accused under section 191 (now section 192) of the Act. I accept Mr. Suri’s point that section 191 (now section 192) of the Act is independent of section 186 (now section 187) of the Act. Mr. Talasasa’s second point of argument was that the Magistrate placed undue weight on past experiences of delay and his view that Mr. Talasasa did not appear to be serious about the case. I think the case R v Hudson Maenu’u & Others referred to above and relied on by Mr. Talasasa on this point can be distinguished on the facts. In that case, the application for dismissal was made under section 186 (now section 187) of the Act. The case was adjourned to 17th August 1998 for mention only to enable the Crown Prosecutor to advise the Court about the next step in the case. The Defence was trying, to throw the case out before proper charges were laid and before the opportunity arose to enable the accused persons to plead to the charges. It was too early to throw the case out. The case was adjourned to 1:30 pm and fortunately the Crown Prosecutor turned up and saved his case. The general remarks by Palmer, J. in His Lordship’s Judgment in that case were made in that context and were not meant to have a general application to all cases in the Magistrates’ Courts. In fact, if the Crown Prosecutor had not turned up at 1:30 pm without explanation, the Magistrate could have been in a different position had Defence Counsel pressed for the dismissal of the case. In fact, Mr. Talasasa’s last point of argument being Ground 2 of the Appeal was also gleaned from the judgment of Palmer, J. in the above case. Again, the remarks by Palmer, J. must be understood in the context of the facts of that case. Mr. Suri, however, argued that justice could be denied by an inexcusable delay thus qualifying the test stated by Palmer, J. in His Lordship’s judgment. In my view, the Magistrate was perfectly entitled to hold the view he expressed in the Court record when dismissing the case on 9th November, 1998. As I have said, there had been 12 adjournments over a period of 9 months in this case. I am surprised that this case had taken that long to reach the stage at which it was dismissed. It is in the public interest that criminal charges against accused persons be dealt with by the Courts as soon as possible. It is the duty of the Crown to ensure that the process of criminal law justice is activated in a manner that is consistent with the provisions of section 10 of the Constitution. In the Court room situation, it means the Crown Prosecutor must ensure that the accused is brought to the Court as soon as possible to plead to the charge laid against him. Once that process is set into motion, the Crown Prosecutor is completely incharge of the conduct and progress of the case until the trial is completed. It means the attendance of the Crown Prosecutor during the course of the trial is maintained at all times subject to adjournments. It means the Crown Prosecutor must ensure that the criminal trials under his charge are paramount in his mind. He attributes nothing to the Court or Counsel for the Defence for the progress or lack of progress of his case. He must not allow the Court to wait on him at all times. He must get to the Court house in good time before the Court sits. He must no stay up date at night or engage in any activity that is likely to interfere with Court appointed time. He must be self-disciplined and efficient in his work. The good Crown Prosecutor is a man of integrity and honour in the community. His words are laced with truth and sincerity. He sets an example to others. He never fails the Court unless he falls dead. That is the kind of standard I would expect from a good Crown Prosecutor in Solomon Islands. In this case, I cannot accept the explanation from Mr. Talasasa that he overslept as a good excuse for his absence in Court on 9th November, 1998. Mr. Talasasa is a senior lawyer in the DPP’s Office and I cannot accept a show of clumsiness in this case. I must again repeat the words of Muria, C.J. in R v Elizah Muala cited above and Awich, J. in R v Paul Maenu’u & Augustine Tuita also cited above that the Court cannot wait on the Crown Prosecutor to say what he wants to do with his case on being called up and the Prosecutor is nowhere to be seen in the Court room. In this case, the Magistrate kindly took time to find out from the Court Clerk in case Mr. Talasasa had sent a message to explain his absence. On resuming, the Magistrate was told by Mr. Suri that Mr. Talasasa was resting in his house and would return to his office at 3 pm. Clearly, on the basis of that information, the Magistrate was not in a position to ascertain the intention of Mr. Talasasa about the next step in the trial. It would clearly appear to the Magistrate that Mr. Talasasa was not serious about his case. In fact, it was an affront to the Magistrate that Mr. Talasasa failed to appear in Court without an explanation. On being pressed for a dismissal, the Magistrate granted it. In my view, the Magistrate was entitled to do what he did in the circumstances of this case. The fact that Mr. Talasasa had spoken to Mr. Suri by telephone before the Court dismissed the charge would not have made any difference. The Magistrate was totally in the dark as to what was to happen next and only Mr. Talasasa was in a position to decide the fate of his case. He was not in Court and so his case was dismissed. It as was simple as that. The fact that the Crown Prosecutor had already called 4 Crown witnesses by the time the case was dismissed was a matter that, Mr. Talasasa said, should have caused the Magistrate to adjourn the hearing to another date. I think the fact is that in our present criminal Justice system, the Court is not supposed to conduct a criminal trial on behalf the Crown Prosecutor. Its duty is to be impartial, hear the evidence on both sides, weigh the evidence and decide the case on its facts. It does not descend into the arena of conflict between the Crown Prosecutor and Defence Counsel. I do not think it is correct to blame the Magistrate for dismissing the charge against the Respondent in this case. The authority that decides whether or not to prosecute anyone for any criminal offence or to discontinue such prosecution or lose a case on grounds of technicalities or through a bungle by a prosecutor is the DPP. The cardinal rule is that the accused remains innocent until proved guilty (See s.10 of the Constitution). In this case, it was obvious that the Prosecution case was lost through the fault of Mr. Talasasa. I therefore dismiss this appeal.

F.O. Kabui
Judge