Fasi v Regina [2005] SBHC 76; HCSI-CRC 489 of 2005 (24 June 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 489 of 2004

JEREMY FASI

-v-

REGINA

Date of Hearing: 22nd June 2005.
Date of Ruling: 24th June 2005.

P. Little and R. Iomea for the Crown.
M. Swift for the Applicant.

RULING

Kabui, J.: By a Notice of Motion filed on 3rd May 2005, the Applicant asked the Court to grant a permanent stay of the criminal charges laid against him under section 96 of the Penal Code Act (Cap. 26), (the Code). There are thirteen charges of the same nature laid against him under section 96 of the Code. The Applicant is currently waiting to be tried in the High Court, having been committed by the Magistrate Court to stand his trial in that regard. The DPP has not yet filed any information against him in the High Court and so has not been arraigned in the High Court. The Applicant is currently on bail with conditions.

The brief background.

Following arrest and being charged with abuse of office under section 96 cited above, Solicitor for the Applicant had made approaches to the DPP, pointing out that no offence had been committed as well as other factors. The DPP in a letter dated 11th April 2005, responded, saying that he had spoken to the Police about the case and requested them to interview the Applicant and any evidence elicited in that interview would be used against the principal accused, referring to Rojumana and Maetia. The DPP also promised in that letter that he would file a nolle prosequi and a letter of comfort once that interview had been done. After that interview had taken place, the DPP by a letter dated 27th April 2005, informed the Solicitor for the Applicant that no evidence of any use had been obtained in the interview and so no nolle prosequi was to be filed as previously indicated. The DPP indicated in that letter that the proper course was for the Applicant to plead guilty and the Crown would ask for leniency for the Applicant. The Applicant has not made any concessions as to his guilt.

The issue.

The issue here is abuse of process but a broader one at that because abuse of process can be raised on a number of grounds, namely, the prosecution is being mounted for an improper purpose, there is inordinate delay or breach of promise or undertaking not to prosecute which has caused prejudice to the applicant or the conduct of the trial is such that there cannot be a fair trial of the applicant thus denying justice etc. In other words, there are categories of abuse of process cases and the category in issue in any particular case to be determined depends upon which category the applicant falls into for the purpose of his or her action. The issue in this case for that matter was the assurance or promise given by the DPP in his letter of 11th April 2005 cited above to file a nolle prosequi and his subsequent retraction of that assurance or promise in his subsequent letter of 27th April 2005. This is the issue being a breach of that assurance or promise by the DPP to the detriment of the Applicant being the category of abuse of process in this case. The detriment being that having to face the charges laid against him again which should have been forgiven as assured or promised by the DPP as mentioned above and depriving him of the opportunity to undertake his study overseas.

The law.

The law on abuse of process in this jurisdiction has been stated in the case of David v. Filia, Criminal Case No. 311 of 2003. I do not need to revisit it. Granting a permanent stay or not however remains a matter for the discretion of the courts. Which way the court exercises its discretion would largely depend upon the facts of each case. In this respect, Lord Steyn, in R. v. Latif and Shahzad, (1996) 2 Cr. App. 92, at page 6, said-

"...The law is settled. Weighing countervailing considerations of policy and justice, it is the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed..."

The reason for the court’s inherent jurisdiction to act to prevent abuse of process.

The cases have shown that the reason for permanent stay as a remedy that emanates from abuse of process is that the court’s process should not be misused by the Crown or anyone else to harass or mistreat individuals in the community. The courts are obliged to protect themselves as institutions of fairness in terms of the proper administration of justice from abuse of process which may result in the courts being ridiculed as instruments of injustice, oppression and harassment if abuse of process is not jealously guarded against by the courts. Put it in another way, the image of the court system must be safe-guarded against abuse of process. At the same time, the courts must not be seen as stooges of criminals who want to get off the hook by using the court process to achieve their own ends. So there must be a balance between these competing interests, being the public interest verses the need to see justice being done. Expressed in another way, Lord Steyn cited above, again, at page 6 said-

"...If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the courts were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime. The weakness of both extreme positions leaves only one principled solution. The court has discretion: it has to perform a balancing exercise...".

I now turn to the facts of this case.

The alleged breach of assurance or promise in this case.

The Solicitor for the Applicant wrote to the DPP on 2nd March, 2005 about the case against the Applicant in which he indicated that the Applicant could not be prosecuted for abuse of office as he committed no offence under section 96 of the Code as alleged by the DPP in terms of the evidence against him. The DPP responded in the following terms-

"...I have already spoken to the Police about this matter. I would like them to conduct an interview with Mr. Fasi which will be used in evidence against the principal accused.

I will file the Nolle and provide the letter of comfort once that is done...".

The interview having taken place, the DPP wrote in these terms to the Solicitor for the Applicant-

"... I have had the opportunity of speaking with Glenn Warnes. The officer has conducted another interview and Mr. Fasi has not said anything over and above what is already contained in his existing record of interview.

On that basis I do not think that a nolle and immunity is a proper course.

However another course of action is to indicate Mr. Fasi’s willingness to assist the prosecution in its case against Rojumana and Maetia. We would agree to actively seek by submission that Mr. Fasi be treated leniently on the understanding he gives evidence in the other matter.

That would entail a plea of guilty being entered and the presentation by you of mitigation."

It is obvious from the exchange of correspondence between the Solicitor for the Applicant and the DPP that the DPP’s response on 11th April 2005 was a reaction to the Solicitor for the Applicant’s invitation to the DPP to state his position regarding the matters raised in the Solicitor for the Applicant’s letter dated 2nd March, 2005. The Solicitor for the Applicant had clearly put the DPP in a negotiating position by that invitation. As was expected by the Solicitor for the Applicant, the DPP took up that invitation and responded to it, by stating his position. The DPP’s willingness to file a nolle prosequi was conditional upon the outcome of the interview to be conducted with the Applicant with the view that any evidence disclosed in that interview was to be used against Rojumana and Maetia. What sort of evidence the DPP was looking for in that interview is not clear but I suppose any evidence that would support the charges against Rojumana and Maetia would have been relevant evidence. The DPP had told the Solicitor for the Applicant that the second interview with the Applicant added nothing to what he had already told the Police in his first interview conducted on 1st July 2004. The tenor of the DPP’s letter dated 27th April 2005 was that his condition of his willingness to file a nolle prosequi had not been fulfilled and so the nolle prosequi had not been earned by the Applicant. The DPP had told the Solicitor for the Applicant in that same letter that message and the retraction of his willingness to file a nolle prosequi accordingly. It was a curious situation where the DPP had been asked to drop the charges against the Applicant on a technical ground. Naturally, the DPP would not have agreed automatically but would have left the matter to the High Court to decide on the evidence before it. However, the DPP was prepared or willing to file a nolle prosequi if the Applicant was able to produce evidence that could be used against Rojumana and Maetia. Having discovered that nothing of that sort was possible with the Applicant, after the second interview, he decided to withdraw his willingness to file the nolle prosequi. The willingness to file a nolle prosequi was clearly a conditional one. This is of course different from the facts in R. v. Croydon Justices, ex parte Dean (1994) 98 Cr. App. R. 76 where after an interview with Dean, the applicant was told that he was a prosecution witness and was under Police protection. He then co-operated with the Police in their investigation and assisted them for a period of about five weeks. Later, after a conference between the Police and the Crown Prosecution Service, it was decided that the applicant should be prosecuted. His prosecution was therefore quashed It is interesting to note that there had been no evidence to show that he had received any express promise, undertaking or offer of immunity. He was however, a teenager at the relevant time. In R v. Philip Henry Vivian Townsend, Simon Robert Dearsley and Gordon Maxwell Bretscher (1997) 2 Cr. App. R. 540, Mr. Bretscher had been treated similarly by the Police in that after a conference between police officers, counsel and others, it was decided that Mr. Bretscher was to become a Crown witness and he knew about his status in that regard. It was later decided that he should be prosecuted. Although a naked promise or undertaking would have been regarded as insignificant, Mr. Bretscher suffered prejudice as result of his declared status as a Crown witness and so there was abuse of process. His conviction was quashed. These cases are distinguishable on their facts from this case. Unlike them, there is no evidence in this case to show that the DPP on his own study of the facts of the Applicant’s case decided on his own motion to inform the Applicant or his Solicitor that he was to drop the case against him for lack of evidence or that no offence had been committed by him under section 96 of the Code. The events in this case had in fact been initiated by the Solicitor for the Applicant to set the actions that followed in motion. It is rather unusual, as in this case, for the defence to ask the prosecution to drop a charge because it is the wrong charge. The usual course of action is to make an application to quash the indictment. No such indictment has yet been filed by the DPP in this case since the Applicant was committed on 29th October 2004 to stand his trial in the High Court. There is clearly a delay of nine months. This is of course a legitimate concern for the Applicant whose study overseas is being unduly hampered by this rather unfortunate delay. In any case, the Applicant has failed to make out his case successfully. Although the courts do have the discretion to stay prosecutions on the ground of abuse of process, I do not think any conditional promise or undertaking or offer of immunity can be guaranteed and binding where the condition precedent has not been fulfilled and such promise, undertaking or offer of immunity is retracted as a result of the breach, like in this case. The Application is dismissed.

F.O. KABUI
PUISNE JUDGE