Regina v Gada [2005] SBHC 35; HCSI-CRC 005 of 2005 (11 February 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 005 of 2005

REGINA

v.

BADDLEY GADA

High Court of Solomon Islands
(Palmer CJ.)

Criminal Case Number 005-05

Date of Hearing: 11th February 2005
Date of Judgment: 11th February 2005

R.B. Talasasa for the Crown/Appellant
M. Anders for the Respondent.

Palmer CJ: Reasons published 9th May 2005. This was an appeal by the Crown against the ruling of the lower court in acquitting the Respondent (“the Defendant”) on the grounds that:

“...the learned Magistrate erred in law when he dismissed the case and ordered the acquittal of the accused in the said matter in that Section 44 of the Firearms and Ammunittion Act does not fall within the Statutory Limitation provided for under Section 206 of the Criminal Procedure Code, in that, the penalty of a fine prescribed by Section 44 of the Firearms and Ammunition Act is two hundred dollars whereas the penalty of a fine prescribed under s. 206 of the Criminal Procedure Code is one hundred dollars.”

The Defendant had been charged with the offence of discharging a firearm in a public place contrary to section 44 of the Firearms and Ammunition Act (cap. 80), which carries maximum sentence of $200.00 fine and or imprisonment of six months.

The order of the Court below read as follows:

“Pros apply S190 2B1 Order Acquit”

The ground of appeal alleged an error of law on the face of the records in the exercise of the presiding Magistrates discretion. It argued that the presiding Magistrate had no discretion to exercise in the circumstances of this case where the maximum sentence which can be imposed for the offences for which he had been charged with exceeded six months or one hundred dollars^[1]. In this instance it is not in dispute that the maximum sentence which could be imposed exceeded a fine of $100.00. Section 206 therefore of the Criminal Procedure Code (“CPC”) did not apply.

At the hearing of the appeal, learned Counsel for the Respondent did not oppose the appeal, though learned Counsel did seek to argue on grounds of delay and prejudice that this court should exercise its discretion and decline to interfere with the order of the court below. Learned Counsel raised a number of grounds including numerous adjournments, time lapse of about 4-5 years, that the prescribed penalty was small and that the Defendant should expect some sort of finality to his case in support of his application to have the appeal dismissed in any event.

Learned Counsel Mr. Talasasa for the Appellant vehemently defended the issue of delay pointing out that the offender was a senior officer in the Royal Solomon Islands Police Force who should know better, that he was armed with an SR 88 rifle and therefore the offence cannot be lightly treated. He pointed out that it was even difficult to have the matter investigated as officers from the Criminal Investigation Division feared reprisals if they investigated the matter. Learned Counsel reminded the court that the offence occurred at a time when law and order was at its lowest and therefore the delay in prosecution and having the matter eventually brought to court was justifiable. This was not the only case which experienced delays in investigation and prosecution.

After hearing learned Counsels on whether the order of acquittal should be allowed to remain in spite of the concession of an error of law, I rejected submissions of learned Counsel for the Defendant and held that the matter should be remitted back to the lower court to be re-heard before a differently constituted Magistrate. I was not satisfied the rights of the Defendant were prejudiced in anyway by the delay in the case. I held there were justifiable grounds for the delay.

After I retired to have the orders and reasons written up, I realised that the issue whether the charge was statute barred under section 206 of the CPC had actually been ruled upon by a previous Magistrate! I then asked the Registrar of High Court to write to Counsels to inform them of my observations. Some correspondences were exchanged but no clear consensus arrived at regarding the court records it seems.

I then instructed the Registrar of High Court to have the matter re-listed before me for further mention as I wanted to raise the issues with learned Counsels directly. In the hearing of 9th May 2005, I was however informed by both Counsels that the orders made by this court on 11th February were correct. I was informed that the matter had since proceeded on at the Magistrates Court with the Defendant being re-charged it seems with a different charge. Mr. Anders had then sought to intervene by raising an application for permanent stay. The matter was then adjourned further to seek clarification from this court on the issue of delay. Mr Talasasa was of the view (quite correctly) that the matter had already been raised before this court and ruled upon. During the hearing however, I was under the misconception that the issue of delay did not form part of the appeal and therefore played no part in it, which was far from correct as it had been raised directly before me and actually ruled upon. So I confused things further when I said that the issue of delay had not been addressed by the court. I now realise when writing up reasons and checking through court records, that the issue of delay had actually been determined and that I ruled against the application of the Defendant on that point. The lower court quite correctly would have been entitled to be informed of the decision of this court on that issue as it would have affected any further applications before it.

I had not published reasons earlier because of my subsequent findings from the file regarding the validity of the appeal from the outset. In view of the confusion and uncertainty that has existed over this matter I have decided in any event to put down the facts of the case as can be gleaned from the records. There have been suggestions that the records of the presiding magistrate were not accurate. Unfortunately, it would not be proper to accept such submission from the Bar Table without affidavit evidence showing otherwise.

According to the Magistrates’ Court records, the issue regarding application of section 206 of the CPC was actually raised before the Magistrates Court on 1st March 2004 by Counsel Daniel Evans, for the Defendant. No one appeared for the Prosecution to prosecute the matter. The learned Magistrate adjourned and gave ruling in which he rejected that application. His Worship noted in his ruling that: “the Def (sic) was bailed to attend this morning but there was no one to attend for the prosecution. It was called for this afternoon and again nobody attended. There is no explanation why no one from the prosecution attended.”

After dismissing the application, his Worship adjourned the matter to 15th March 2004 at 9.00 am for plea.

The issue therefore whether section 206 of the Criminal Procedure Code (“CPC”) applied to this case was no longer a live issue. It had already been determined by Principal Magistrate Upwe. This court therefore stands functus officio in respect of that matter. It has no jurisdiction to deal with it.

When the matter came before Principal Magistrate Makin on 15th March 2004, again no one from Prosecution appeared. According to the records of the Court it read as follows:

“Adj to 1.30 for report as to why delay I have read letter from Mag to Police unless I have response by 1.30 I will dismiss case.”

It appears the matter was adjourned to 1.30 pm but again no one for the Prosecution appeared.

The notes of the learned Magistrate read as follows:

“Pros SIAWAAE

Passed to DPP on 14th Feb

This matter is handled by Mr. Ballea.

Ct The court wrote to the prosecution on the 2nd March warning of this hearing after the prosecution failed to attend. I am told no papers have been given to the Defence and the persons dealing with this case at the DPP’s office is too busy to attend court today. I have adjourned for 1 hour to enable that person to come to Ct now if he is not here by 3 °/c (sic) I will entertain an application to dismiss the case for want of prosecution or abuse of process.”

The court records continue on the next page as follows:

“DPP

This file was handed to DPP 2404 it is wrong date wording why but didn’t enquire only found today I had the file I was surprised I had file on my behalf.

Pros apply S190 2 B 1

Order Acquit.”

According to the court records, Mr. Balea who was supposed to have carriage of the matter, never turned up despite being informed; no reason as well was given for his failure to attend. There appeared to be someone called SIAWAAE standing in for Prosecution though at that time.

The ground under which the Defendant was acquitted would appear to be either for want of prosecution and or abuse of process. Until that order is dislodged, it remains operative.

This appeal therefore has been misconceived and the court misled into issuing ineffective orders which ought not to be allowed to stand in the circumstances. The orders issued on 11th February 2005 therefore ought to be vacated and replaced with appropriate orders for dismissal of the appeal.

The Court.

ENDNOTE:

1. See section 206 of the Criminal Procedure Code