Regina v Ofo [2008] SBHC 95; HCSI-CRC 382 of 2006 (18 June 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 382 of 2006

REGINA

V

CHRISTIAN OFO

Date of Hearing: 17 June 2008
Date of Judgment: 18 June 2008

Ronald B. Talasasa for the Crown
T. Wallwork and R. Tovosia for the Accused

DECISION ON APPLICATION FOR A PERMANENT
STAY OF PROCEEDINGS

Cameron P. J.

1. This is an application for permanent stay of this proceeding based on delay.

2. On 27 October 2003 the accused was charged with rape of a young girl, allegedly on 9 May 2003.

3. After various delays in the prosecution of this case through the Magistrates Court, the charge was withdrawn on 15 March 2004 and the accused was discharged. It is reasonably apparent that the reason the charge was withdrawn was because of a recognition that there had been a lack of progress in the prosecution of the case. I am told from the bar that at that point Mr. Ofo thought he had won the case. I accept this was his state of mind.

4. In January 2006, some 22 months later, Mr. Ofo was recharged with exactly the same charge, and summoned to appear in the Magistrates Court on 22 February 2006. On 10 April 2006 there was a short form preliminary inquiry at which the accused pleaded not guilty to the charge and was committed to trial in the High Court.

5. The matter was listed for trial in the High Court for 16 June 2008, at which time this application was made.

6. I return to the delay between the period from the withdrawal of the charge on 15 March 2004 and the re-charging of the accused in January 2006. Mr. Talasasa provided the Court with extracts from Police diary notes and various memoranda, file notes and letters from the office of the Director of Public Prosecutions to the Director of Police Prosecutions as to what was occurring behind the scenes during this period.

7. Significantly, as early as 30 April 2004, barely a month after the charge was withdrawn, the Director of Public Prosecutions wrote to the Director of Police Prosecutions informing him that there was prima facie evidence to support a charge of rape, and that Mr. Ofo should be located and re-summoned for that alleged offence. In other words, as at 30 April 2004 there was every intention by the office of the Director of Public Prosecutions to have Mr. Ofo re-charged.

8. While it was open for the Police to lay a fresh charge for the same offence, the difficulty is that this was hard on the heels of the Director of Public Prosecutions successfully applying to withdraw exactly the same charge because of an unsatisfactory lack of progress in its prosecution. This is, in my view, close to if not an actual abuse of the process of the Court.

9. In addition to that, and despite the efforts of the Director of Public Prosecutions to rekindle this charge in a timely way from mid 2004 onwards, it was not in fact until January 2006 (some 22 months after the charge was withdrawn) that Mr. Ofo was re-charged. There is no suggestion that Mr. Ofo was difficult to locate. Indeed, it seems the reason for the delay was inaction on the part of the office of the Director of Public Prosecutions, which despite receiving reminder letters from the Director of the Public Prosecutions about locating and re-summoning Mr. Ofo has no diary notes pertaining to Mr. Ofo between 3 May 2004 and 20 January 2006 (a 20 Month period).

10. Thus this Court is faced with a situation where a person has a charge withdrawn because of delay in its prosecution, believes himself to be free, and despite an intention by the Director of Public Prosecutions to have that person immediately re-charged he is not so re-charged until nearly two years later. I add, too, that there can be no suggestion of any significant new evidence coming to light after the charge was withdrawn. The essential facts were known to the Police at the time of first charging Mr. Ofo and medical evidence by way of corroboration obtained well prior to the withdrawal of the charge.

11. In addition to those delays the accused, through no fault of his own, has had to wait a further period of over two years since committal for his matter to come to trial.

12. The cumulative delays in this matter are oppressive when viewed in light of the reasons for those delays, the re-charging of the accused despite a withdrawal of the same charge for want of prosecution, and the failure to promptly re-charge the accused despite an intention to do so.

13. The prejudice to the accused arises fro and by virtue of these oppressive delays, and the fact that he has been on bail while the subject of that charge is no answer to that. For these reasons there has been a breach of the accused's constitutional right to be tried within a reasonable time, and it is of sufficient magnitude to warrant the exercise of my discretion to permanently stay this criminal proceeding.

14. I so order, and direct that the accused is now released from bail.

BY THE COURT

HON. JUSTICE IDR. CAMERON
PUISINE JUDGE