Regina v Bartlett [2006] SBHC 46; HCSI-CRC 433 of 2006 (15 November 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 433 of 2006

REGINA

-v-

ALEX BARTLETT, CHARLES DAUSABEA,
DAVID DAUSABEA AND NELSON NE’E

Date of Hearing: 6th November 2006

Date of Judgment: 15th November 2006

P. Little for the Director of Public Prosecutions
S. Lawrence for Charles Dausabea and Alex Bartlett
A. Nori for Nelson Ne’e
S. Balea for David Dausabea

JUDGMENT
Application pursuant to s. 67 of the Criminal Procedure Code

Brown, J: The Director of Public Prosecutions Mr. Ronald Bei Talasasa by notice of motion seeks this courts order that these particular accused persons be committed for trial directly to the High Court. This course departs from the usual practice where a Preliminary Inquiry is first held by a Magistrate to ensure there is evidence upon which the man may be put to his trial. Mr Little who appears for the Director, says that in particular circumstances envisaged and provided for in s. 67 of the Criminal Procedure Code, this course is open to the High Court. It is not clear whether any person has applied for orders under the section before but Counsel for all accused deny that such a course is open. Rather they say that the Criminal Procedure Code provides to the contrary, when sections 56, 211 and 212 (short and long from committals) are read, and the initial requirement for a Magistrates inquiry is made plain.

Section 56, while giving the High Court power to try any offence subject to its jurisdiction, by its proviso, expressly states- "that no criminal case shall be brought under the cognisance of the High Court unless the same shall have been previously investigated by a Magistrates Court and the accused person shall have been committed for trial before the High Court" (proviso to s. 56).

Mr. Little argues that s. 56 must be qualified by s. 67 for by a tenet of construction, the "particular qualifies the general". Here the general power in s.56, is qualified by s.67, Mr. Little says for that section is later in the scheme of the Code and specifically makes provision for a direct committal in circumstances enunciated. He also pleads in aid s. 9(3) of the Interpretation and General Provisions Act (Cap. 85); and says s. 67 should be given a liberal interpretation to afford it true intent, meaning and spirit for the legislative intention is clearly to change the old rules of the game. For by denying the usage to which Mr. Little wants s.67 put, this court would deny efficacy to the section. The phrase, "committed for trial" is used in s.67(1).

All defence counsel deny a reading of s. 67 would have that effect on s. 56; Mr. Nori says the Directors argument is misconceived for that s. 67 is principally concerned with the logistics of the trial, for that in any event an accused has a fundamental right to a committal reflected in Ss. 211, 212. Mr Lawrence argument was to the same purpose with particular emphasis on an accused’s right to the committal inquiry or "preliminary inquiry", an emphasis which he coloured by ranging further afield to utilise law in Papua New Guinea, law which reflects that important principle there stated; "no man should be brought to trial unless there have first been committal proceedings (Smedly v. The State (1980) PNGLR 379 Supreme Court per Kearney DCJ at 381). But whether that phraseology correctly reflects the statutory regime, in this country must remain for decision.

Mr. Balea adopted both other counsel’s argument in relation to the paramount effect that I should give to s. 56.

To better understand the issues, I set out s. 67(1) which the Director of Public Prosecution, says affords this court power to order that an accused person be committed for trial, without in effect, following the usual practice of a Magistrates’ hearing or "preliminary inquiry".

"S. 67(1) When it is made to appear to the High Court-

(a) that a fair and impartial inquiry or trial cannot be had in any Magistrate’s Court; or

(b) that some question of law of unusual difficulty is likely to arise; or

(c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same; or

(d) that an order under this section will tend to the general convenience of the parties or witnesses; or

(e) that such an order is expedient for the ends of justice or is required by any provision of this Code;

it may order-

(i) that any offence be inquired into or tried by any court not empowered under the preceding sections of this Part but in other respects competent to inquire into or try such offence; or

(ii) that any particular criminal case or class of cases be transferred from a Magistrate’s Court to any other Magistrate’s Court; or
(iii) that an accused person be committed for trial to itself".

The Notice of Motion (in terms of s. 67(3) by an "interested party" the Director) stated grounds;

1. that it will tend to the general convenience of the parties and the witnesses;

2. that it is expedient for the ends of justice.

These grounds are what I refer to as the issues in contention once the preliminary issue, whether the section envisages a departure from the norm is resolved.

In his oral argument, Mr. Little also sought to include the ground in s.67(1)(a) ("fair and impartial inquiry cannot be had..."), which be rather left hanging, and which attracted no opposition, so far as I could see from defence counsel. Be that as it may, I propose to confine my consideration of the issues to those raised by the motion, for oral argument has not afforded counsel the time required for any considered response to this late ground.

The preliminary issue is whether, on a proper reading of those particular sections of the Act that I have recounted, s. 67 permits, in circumstances, trial in the High Court without the commonly accepted committal proceedings.

The flaw in the argument of the defendants is that while claiming the legislative regime recognises the "preliminary inquiry" process, s. 67 clearly envisages an exception which, as Mr. Little says, qualifies the general principle expressed in s. 56. Is it relevant to bring s. 264 of the Code into the equation for Mr. Lawrence argues that section does bear on the Directors powers to circumvent, as it were the usual practice, by seeking an order for direct committal; it makes plain impediments to be placed on the Director seeking to call witnesses on trial, witnesses not called at the preliminary enquiry. That argument really is one for the trial judge once "an information" is filed in the High Court and does not, in my view, go to the first issue. Similarly, Ss.211, 212 also deal with the process of the preliminary inquiry, not this suggested exception to that process. Again, it does not avail the defendants to argue, as Mr. Lawrence has done albeit persuasively, that abolition of ex-officio indictments in the Solomon Islands may be used to illustrate this paramount "committal right" when the Code, in s. 67 speaks of a power in the High Court to order that an accused person be committed directly for trial. That committal is not one for the discretion of the Director as if he were to present an ex officio indictment under the old regime. In the words of the section, "the court may order-(iii) that an accused person be committed for trial to itself" and this is a new regime. But is it Constitutional?

The Constitution – Part III – The Director of Public Prosecutions and the Public Solicitor

This part enables the Director to institute and undertake criminal proceedings before any court in respect of any offence alleged and as well to take over and continue any such criminal proceedings that have been instituted.

The High Court, established by Part II – The Judiciary has unlimited original jurisdiction to hear and determine any civil or criminal proceedings.

There is on its face, no Constitutional impediment affecting a Court power to consider orders under S. 67(1)(d&e)(iii) as proposed by the Directors’ motion. The statutory regime envisaged by this provision, s. 67(1) is not that regime concerned with committals under Ss. 211, 212 if the court in its discretion is satisfied an order in terms of s. 67(1) is appropriate. It follows that I do not accept Mr. Lawrence’s argument that s.76 really relates to the geographic convenience of having hearings arranged about the country or between grade magistrates in accordance with a supervisory role by the High Court over the administrative working of the Magistrates, an administrative role which leaves the Magistrates’ function in committals untouched.

The discretion embodied in the words, "it may order-" need be exercised on proper judicial principles. They are not administrative in the sense portrayed by Mr. Lawrence when addressing s. 67(1). Nor can the discretion be framed in terms of no discretion in circumstances of the earlier right in the Law Officer of the Crown to file an "ex officio indictment", when that right is no more in this country. Nor, on the authority of Smedley v The State in Papua New Guinea.

The motion points to the need of the court to be satisfied either an order for trial for criminal offences will "tend to the general convenience of the witnesses" or "be expedient for the ends of justice".

Smedley’s case is however, a good summation of the risk to the individual of the exercise by any authority, of the power which may tend to the erosion of the rights of the individual facing the trial process.

Pratt J in Smedleys case explores the historical "privileges" and "prerogatives" of the Crown Law Officer. At p 14 of that judgment of the PNG Supreme Court (Court of Appeal) he says-

"That the presentation of an "ex officio" indictment is an exercise in great power to my view is without question. That it has always been regarded as such, is amply demonstrated by even a short survey of the historical development of criminal procedure under the common law. The task of discovery in this somewhat esoteric area is made much easier these days by reference to that admirable work of Prof. J.LI.J. Edwards, The Law Officers of the Crown. In Ch. 13, the learned author deals, inter alia, with one of the "ancient privileges" and "prerogatives" of the Attorney-General in the form of "ex officio informations". He points out that:

"The established privilege of the Attorney-General, inherent in his office, to file Information at will in the Queen’s Bench Division of the High Court has a long and chequered history, the origins of this now much denuded right being traceable as far back as the reign of Edward I."

"Professor Edwards then goes on to point out that up to the writing of his book in 1964, the power to issue ex officio informations on the part of the Attorney-General had been used only once in this century. This is perhaps really not surprising when one recalls that such procedure was "confined, as trials on ex officio informations presumably are, to the restricted circumstances outline in Blackstone’s Commentaries, namely to such enormous misdemeanours as peculiarly tend to disturb or endanger the Queen’s Government". He concludes in the hope that the procedure of ex officio indictments will be relegated to "the expanding depository of archaic privileges once belonging to the Crown". The two main features which I extract from the material contained in this chapter are firstly the extremely sparse use of the "ex officio information" in the United Kingdom, and secondly and perhaps most importantly, that en ex officio indictment is a Crown privilege or prerogative which was always vested in the Attorney-General and was used very sparingly indeed. The exercise of such power did not have any statutory basis and consequently its use or abuse was not controlled in any way by an Act of Parliament. The circumstances there fore under the common law where the ex officio information developed, were quite different from the circumstances existing in Papua New Guinea before 1974 and certainly so after Independence in 1975."

As I say, the power of the Director to present an"information" stems from both the Constitution read with the Criminal Procedure Code. It is not, in my view helpful to address the procedure for committal envisaged by Ss. 211, 212 as circumvented by recourse to s. 67(1) of the Code for those sections have no relevance when looking to the Directors power to file "information" in the High Court. Before the High Court considers embarking upon a hearing or trial of the "information" it must be satisfied about compliance with the provisions of the Code leading to trial. Section 67 is such a provision leading to trial.

Implicit in the power given the court by s. 67(1) to order trial is the obligation "to ensure that no man be held for trial unless there was evidence of guilt". (See Chambers Weisbrot & Andrew, Criminal Law and Practice of Papua New Guinea 2nd edit, Law Book Company Limited 1985 at 571)- For that was the obligation resting on the grand jury (laymen) in England even after the passage of the Summary Jurisdiction Act 1848 (English) (allowing for pre-trial examination by Justices of the Peace). So while the rules may have changed by virtue of s.67, the principle implicit in the courts discretion, to ensure that no man be held for trial unless there was evidence of guilt, remains. This means the High Court is bound to see the case pertaining to the charge or charges against an accused alleged to have committed an offence and be satisfied there is evidence which, if accepted, would call for his trial. This approach should not be seen as analogous to that canvassed by the Court of Criminal Appeal in R v. Galbraith (1981) 1 WLR 1039, 2 All ER 1060. By such inquiry, this court takes unto itself the obligation previously seen to rest on the grand jury, so that the right of an accused, that no man suffer trial unless there was evidence of guilt, is maintained. It was the fact that such right was, by common law, subject to the vagaries, as it were, of the Crown Law Officer (when he chose to file an ex officio indictment) that caused such debate, about his privilege. The court in these circumstances, must be seen to be exercising a judicial function, not an executive function which gave rise to the criticism of previous Crown Law officers. The question whether s. 67(1) affords a separate route to trial must be answered in the affirmative.

The evidence as which the Director seeks to rely was material contained in the two affidavits filed in support of the motion.

These were affidavits of two investigating police officers. The charged which underlies this application for a change of venue to the High Court is set out in one of the officer’s affidavit. I reproduce the material part;

"2. Alex Bartlett, Charles Dausabea, David Dausabea and Nelson Ne’e are all charged that "on a date between 12 April 2006 and 24 April 2006 did conspire with others to commit a felony namely riot". A long form preliminary enquiry for that charge is listed for hearing on 6 November 2006.

This charge was laid on or about 28 August 2006 as a result information received. Statements were taken on or about 2 July, 6 July and 23 August 2006 from Willie or Will Titia. Annexed hereto and marked with the letter "A" "B" and "C" respectively are copies of those statements. This was the first admissible information received that revealed forward planning of the events of 18 April 2006 at Parliament and in China Town.

The delay in laying this charge was for operational reasons.

At the time of laying this charge, the other charges arising from 18 April 2006 were already being processed through the Magistrates Court. The charges had initially been laid on or around late April 2006. The charges relevant to this application are set out in the following paragraphs.

The conspiracy alleges as overt acts the alleged actions of the defendants leading up to and including the events of 18th April 2006 including the substantive charges laid against the defendants referred to in this affidavit".

The officer deposed to the fact that "Alex Bartlett in addition has been charged with 2 counts" alleging arson and inciting persons to destroy buildings.

The witnesses’ statements relating to these charges (which are listed for a long forms (s. 212) inquiry on the 20 November 2006, have been included in the material before the court.

Nelson Ne’e after a long form preliminary inquiry was committed for trial on 2 charges, "unlawfully inciting persons to destroy buildings" and "intimidation".

Charles Dausabea was also committed for trial on 3 charges; "did with intent to intimidate, break a dwelling house"; "did incite persons to destroy buildings"; and did intimidate a person, namely Frank Hou".

It is, then these charges which have been listed for a preliminary inquiry that I need be concerned with when looking to see whether there is evidence, if accepted which provide evidence of each element of the charge.

I should say that I have read all the material contained in those two affidavits and I am satisfied of the existence of such evidence going to the conspiracy charge, as well as those further 2 counts recited above.

I need not concern myself with review of the charges already processed through the Magistrates Court where committal proceedings are complete.

An information, dated 2 November 2006 as a consequence of these committals, by the Director lodged with the court charges both Charles Dausabea and Nelson Ne’e with 4 counts or offences contrary to the Penal Code, all relating to the riots in April this year.

The evidence going to the conspiracy charge is primarily that set out in the affidavit of the first police officer and can be found in the statements of Will. Titia.

I now pass to what I see to be a most important issues going to the exercise of discretion, the issues in contention; whether there are matters which will tend to the general convenience of the parties or witnesses or are expedient for the ends of justice.

Mr. Lawrence, Mr. Nori and Mr Balea in effect argue that the accused will be particularly prejudiced by the absence of the procedural enquiry required by Ss. 211, 212 and that prejudice should be seen to outweigh any inconvenience or concerns of parties or witnesses. The argument is that s. 56 should be given full force and effect by way of investigation in the Magistrates Court. Mr Lawrence goes on to argue that s. 264 of the Code, (preventing the Crown from calling witnesses on trial, witnesses who have not been before the preliminary inquiry) indicates the paramount importance the preliminary inquiry has in the scheme of the Code, a scheme directed, Mr. Nori claims to the "fundamental privilege of the accused", to challenge the principal Crown witnesses,. In this case, Mr. Titia. Mr. Lawrence speaks of the purpose of the preliminary inquiry as affording the accused the opportunity to know his case; to cross examine and test the crown witnesses; to a discharge where the Magistrate finds insufficient evidence to put him to his trial and again, to argue bail once the evidence is aired.

All these are valid points and must be weighed in the exercise of my discretion. I do not accept Mr. Nori’s categorisation of "a fundamental privilege of the accused" as tied wholly to a preliminary hearing so as to challenge the Crown witnesses, before the Magistrate, for the fundamental privilege is that touched on above, the right in the accused to known the case he must face. Addressing Mr. Nori’s concern about the "privilege" of the accused to an inquiry I find the accused’s privilege if it be so called is that underlying protection to be afforded by this court, in the proper exercise of its discretion under s. 67 and should not be confused with a claim to a preliminary inquiry. For that claim is anachronistic in its apparent reliance on the outdated law surrounding ex officio indictments by a law officer. Having accepted another procedure vide s. 67 to bring an accused person to his trial, these issues are but matters to be weighed with those of "general convenience" or "ends of justice" spoken of in the section. For these proceedings as Mr. Little says, do not involve exercise of power by the Director (which disposes of the defence reliance on Smedley’s case), but rather presupposes the proper consideration of the prosecution material made known to the accused in this court, before proceeding to consider the two issues posed by s. 67(1) and which the Director says should ground the exercise of the court’s discretion.

Mr. Lawrence says that Ss. 56, 211, 212 and 264 protect an accused’s right to a fair trial. On a proper reading of s. 67, the accused’s right to a fair trial remains unaffected; rather the court must also consider in this case, the apparent risk of threats to witnesses and the real risk of suborning witnesses for they are the substance of the prosecution reasoning to justify its motion on these two issues of contention before me. For when I read the affidavit of the two police officers and that of the material witness to the conspiracy charge, Will. Tatai they not only suggest, as Mr. Lawrence argues, a witness who may be one induced to commit perjury, but one who is at risk of being suborned. That, in the circumstances of this case, is a most material consideration on those issues of both "general convenience" and "ends of justice". I must also have regard to the fact that the Magistrate has found there is also evidence sufficient to put both Charles Dausabea and Nelson Ne’e on their trial on two counts of intimidation contrary to S.231 (1) of the Penal Code.
These are very serious charges. The welfare of the State was undermined by the manner and effect of the riots which damaged so much of Honiara and left so many people bereft. It continues to materially affect the persons who suffered and those incidentally affected, a loss likely to impinge on all.

I am reminded of the phraseology quoted from Blackstones Commentaries earlier, namely that the procedure (ex officio indictments) was restricted to "such enormous misdemeanours as peculiarly tend to disturb or endanger the Queens Government".

That phraseology may usefully be applied to the matters for my consideration on the question of discretion when looking at whether or not to make an order for committal which is expedient for the ends of justice

Clearly to expect particular witnesses to again to face a further inquiry in the Magistrates Court carries with it the risk of threats and intimidation already demonstrated in the earlier inquiry recounted by the police officers. Alleviation of that risk out-weights any suggested diminution of rights to be afforded accused persons, suggestions about diminution which I do not accept for the reasons given. Whether the course available, to put persons to their trial vide s. 67(1) is available or not, must always be this courts decision and thus, it can be seen, not the prerogative of a law officer or prosecutor. Such a decision will take into account the principles I have set out. Mr. Little argued that the court should recognize that the frame work in terms of s. 67 is not a "paper committal" in terms of s. 211. But his reference to the discrete charges which affect particular accused and which give rise to the existing committals are charges he says which are overt acts in the conspiracy. So the court has before it material which the Magistrate was satisfied, was sufficient to put both Charles Dausabea and Nelson Ne’e on their trial for "inciting riot to destroy buildings contrary s. 80 (as read with s. 381) of the Penal Code; Intimidation (by Charles Dausabea) of one Frank Hou contrary s. 231(1) of the Code; and a further count of Intimidation against Nelson Ne’e of one Anna Ropoi hura Nuaiasi".

The other long form committals (s. 212 of the CP Code) against Alex Bartlett listed for the 20 November 2006 (details of which are set out else where in my reasons) also relates to "overt acts" Mr. Little says, which comprise the discrete offences of the felony of conspiracy to do wrong.

The addition of Mr. David Dausabea in the conspiracy charge leaves him at this juncture, it would seem, without other charges alleging separate offences. The evidence of the conspiracy per se rests on that of Willie or Will. Titia whose statements of the 2 July, 6 July and 23 August 2006 are before this court. Will Titia’s statements relate to a meeting of persons including these 4 named accused on the 13 April 2006 at the Airport Hotel about lunchtime.

I do not propose to recite all the particular material which goes to the crux of the Directors charge of conspiracy, for while it is evidence which if believed would be sufficient to put these persons on their trial, it is sufficient to say it recites threats against particular individuals in the previous government of Sir Allan Kemakeza if that government were re- elected; threats of a particular course of action by Charles Dausabea and associated threats to destroy Chinese business by burning and looting. Those others including these 3 accused are alleged to have agreed with and supported Charles Dausabea.

I will use the phraseology of Will Titia for it illustrates the underlying reason why the rule of law is at risk. The alleged conspiracy in the circumstances here demonstrates a real risk to the democratic process and encourages the rise of the oligarchy.

"For when people like Charles Dausabea, Nelson Ne’e and Alex Bartlett tells us to do such, we must do it. They are big men and get a lot of respect from the people. During the meeting nobody would go against them when those three men spoke. They are the bosses. Nobody at the meeting would dare say anything against what they wanted to do. I believe they were very serious. I know that they are dangerous people if you go against them".

When I read Officer Pruuland’s affidavit which details threats to witness, bribe and attempted bribe, it is plain that what Will Titia is concerned about, may well be attributed to the cultural mores of the people, if not these particular individuals. It is no less important, however, to take notice of the cultural imperatives (to stand with "big men") even were the imperatives to be misunderstood, and misapplied by the rioters perhaps, if it appears, as here, that some story about the community may be one which gave rise to criminal acts in the burning of Chinatown for instance. This cultural imperative is recognized and discussed by Geert Hofstede (Culture’s consequences: International Differences in Work-Related Values, abridged edit – Beverly Hills: Sage, 1984) and described in Wood, Wallace, Zeffane, Schermerhorn, Hunt and Osborn, Organizational Behaviour – An Asia-Pacific Perspective (John Wiley & Sons/Jacaranda Wiley Ltd 1998). One of five dimensions of national culture includes; 1. Power Distance, or the degree to which people in a country accept a hierarchical or unequal distribution of power in organizations. This statement of Will Titia quoted reflects a high power distance culture, in keeping with Middle Eastern and South American cultures, referred to in the text, above. To overlook this facet of the problem is to risk perpetrating a worse injustice, for there is evidence, in the stories of threats bribery and attempt, of risk of corrupting the committal process itself. In these circumstances s. 67(1) affords an avenue for reducing the risk to a fair trial, by obviating to an extent, the risk to witnesses, without taking away from defence, its right to know the case that it faces.

Mr. Little’s argument, then that witnesses in these trials should not be subject to the risk of threat through various other committal proceedings has weight in this case, for the cultural imperative already is reflected in threat, bribe and attempt to witness.

The flaw in Mr. Lawrence argument about s. 67, is that while the section is concerned with movement in cases about the Magistrates court, both geographically and from grade magistrate to other, s. 67(1)(iii) is clearly concerned with a change of venue to the High Court. The section then, envisages those three changes of venue to place, magistrate and High Court, and I am satisfied the section must be given its wide application and not be read down as Mr. Lawrence would have it, to a geographical construct.

It is not correct to say, either that Ss. 211, 212 and 264 when read with s. 56 are the protections which afford the accused a fair trial. The HC, not the Magistrates Court is the court with the duty to ensure a fair trial. To suggest otherwise is to confuse the committal process with the duty on the High Court and is a mistake.

In this case, I am satisfied the ends of justice will be served if the order is made.

THE COURT