Pitabelama v Attorney General [2010] SBHC 77; HCSI-CC 160 of 2010 (3 November 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

JOHN SMITH PITABELAMA
Applicant

AND:

ATTORNEY GENERAL
Respondent

Date of Hearing: 29 September 2010
Date of Decision: 3 November 2010

Mr. M. Pitakaka for claimant
Ms L. Folaumoetui for respondent

DECISION ON APPLICATION FOR PERMANENT STAY OF CRIMINAL PROCEEDING

Cameron PJ:

1 The applicant, who is now a legal practitioner in private practice in Gizo, seeks a permanent stay of a criminal proceeding brought against him. The charge which he faces is one of larceny and embezzlement by a servant contrary to section 273(b)(ii) of the Penal Code. The applicant was the Police Commander of Choiseul Province at the time of the alleged offending, and held the rank of Superintendent. The charge was laid on 27 November 2009. It relates to a sum of $15,250.00 belonging to the Solomon Islands Government which the applicant is said to have taken possession of on about 9 August 2000 and used for his own purposes. The police summary of facts states that the money was originally paid by police to a supplier for the purchase of an outboard motor, which outboard motor had been requisitioned for police by the applicant. On the applicant's instructions, that purchase was cancelled before the outboard motor was supplied. The purchase moneys on the applicant's instructions were then returned by the supplier, but no replacement outboard motor was ever purchased, and the funds of which the applicant took control were never refunded to the police.

2 It is clear from a sworn statement by police officer Robert Soaki that a complaint against the applicant was made by Superintendent Joseph Leo in 2000 or early 2001, and a case File CRB01/2001 created on 12 February 2001. Immediately thereafter, Inspector Fred Saeni conducted investigations and pursued various avenues of inquiry, and then a year later, on 15 February 2002, forwarded the file to the Director of the National CID, the late Jackson Ofu. On 11 August 2004 the late Jackson Ofu forwarded the file to officer Johnson Siapu of Crime and Intelligence, who on 31 October 2005 forwarded it to the Officer in Charge of the Corruption Squad, Les Simao, for continued investigation. On the same day the file was assigned to PPF adviser Ricky Bradley, a team leader. The file was then sent to the deponent Robert Soaki on 31 January 2006, who from that point on conducted a comprehensive investigation collecting evidence and obtaining statements. The applicant was first interviewed by police on 24 June 2008, and a second interview by police took place on 10 November 2008. Then followed the laying of the charge on 27 November 2009.

3 The applicant contends that the delay in charging him now means that he is unable to obtain "a fair hearing within a reasonable time" within the meaning of section 10(1) of the Constitution. To this end, on 12 April 2010 the matter was referred to this Court by the Magistrate's Court pursuant to section 18(3) of the Constitution. The applicant's counsel, Mr. Pitakaka, advised the Court that the delay relied on in support of the application for a stay of the criminal proceeding was that which arose from the date of the alleged offending in 2000 to the date when the charge was laid on 27 November 2009. The Court was advised that the delay since then is not relied on, given that the causes of that have been the applicant applying to have the venue for the criminal charge moved from Honiara to Gizo and the decision to apply for a stay of the criminal proceeding.

4 The applicant relies on the Court of Appeal decision of Kimisi v. Director of Public Prosecutions [1990] SBCA 6 in support of the submission that delay prior to charging is directly relevant to an application under section 18 of the Constitution based on delay.

5 The difficulty the applicant faces with this submission is that section 10(1) of the Constitution is expressly directed to the right to a fair hearing within a reasonable time once a charge has been brought. This is clear from the opening words of the subsection, which are as follows:

"If any person is charged with a criminal offence, then, ... that person shall be afforded a fair hearing within

a reasonable time ...".

6 Of course, there will be those rare cases where the delay in bringing a charge has resulted in circumstances where a fair hearing is no longer possible, so that its continued prosecution would be oppressive. In that situation a permanent stay would be appropriate. However, it would be a truly exceptional case that falls within the category described. I also comment that section 10 of the Constitution was not intended to operate so as to impose a limitation on the time for bringing charges. I do not consider Kimisi's case to be an authority to the contrary.

7 In considering applications for a permanent stay of criminal proceedings, the law of Solomon Islands is represented by the more recent Court of Appeal authority of Robu and Others v. Regina CA-CRAC 24 of 2005, 25 October 2006. In that case the Court stated, para. 15:

"It is well established and not disputed a trial judge may order a stay of proceedings either before or during trial provided an accused can show on balance of probabilities the delay complained of has resulted or will result in his suffering serious prejudice to the extent that he has not or will not receive a fair trial. In other words, the continuation of the proceedings amount to an abuse of process of the Court".

8 The Court also cautioned that factors to be taken into account in determining whether a defendant is given a fair hearing within a reasonable time include the length of the delay, the reason for the delay, the defendant's assertion of his right and any prejudice to the defence.

9 Here the time elapsed between the alleged offending and the laying of the charge is some 9 years. While that is a considerable time, it does not of itself justify a stay, that is it does not follow from that delay that a fair hearing cannot now take place within a reasonable time from the charge being laid. As to the reasons for the delay, these are broadly explained in the sworn statement of Robert Soaki. He refers to the fact that the case did not have a particularly high priority because of more pressing post tension investigations, limited investigative resources, logistical difficulties with a spread of witnesses through various provinces, slow responses from Government departments, and the involvement of numerous case officers. While these explanations are not entirely satisfactorily, the evidence at the very least shows there was a continued interest by police in following the matter up over the years, although at a very slow pace. I accept, too, that some cases have had to be given priority over others, especially in the period following the end of the tensions.

10 As to the applicant's assertion of his right, I accept he did this in a timely way following the laying of the charge.

11 As to whether serious prejudice has been caused by the delay, this is the issue which is the essence of the application. As stated, the applicant was the Police Commander of Choiseul Province at the time, and says that had he been formally advised earlier than 24 June 2008 (the date of his first interview) then he would have been in a better position to access relevant documentation and prepare his defence. In this respect he points to the fact that he resigned from the Police Force in June 2001 and took up the position of Ombudsman of Solomon Islands, that the alleged offending was not raised with him at that time, and that he has now lost the opportunity to access relevant documents from police files.

12 He also states that since 2000 his most important witness, the former Commissioner of Police, the late Morton Siriheti, has passed away, as has the applicant's wife, who was also a potential witness. He also says many of his witnesses are from Bougainville and are no longer in contact with him, and that it would be a difficult and expensive task to locate them now. He also refers to the fading of memories of witnesses over time.

13 However, what the applicant has not done in his sworn statements is provide any details at all about the nature of his defence, how it is said that witnesses who have died would have assisted that defence, how it is said that other witnesses with whom he no longer has contact would assist his defence, what documents he would need for his defence, what documents he has sought from police since the laying of the charge, and why he says it would be extremely difficult to have access to official files. In other words, his sworn statements are entirely general about the nature of the prejudice, and in my view fall well short of demonstrating actual serious prejudice.

14 Another point of interest is that the applicant states in one of his sworn statements as follows:

"I was not given any formal notice by the then Commissioner of Police. The only time I was officially notified of the alleged offence was on the 24th June 2008..." (para 12, sworn statement 23 September 2010).

15 What the applicant is careful not to disclose in his sworn statement is whether at some earlier time he unofficially became aware that a complaint had been laid against him. It is almost inconceivable that in a small country such as this, and given the high position the applicant held in the police and continued to hold as Ombudsman for 5 years thereafter, and given that a police file had been opened against him on 12 February 2001, that he would not have had some knowledge that he was being investigated in respect of this matter. The significance of this is that he would have been able to marshal his defence at a much earlier period had he chosen to do so. However, I make it clear that irrespective of whether or not he had that earlier knowledge, there is no serious prejudice established in this case.

For the reasons given, I decline to enter a permanent stay of the criminal proceeding, and direct that it now proceed.

BY THE COURT
Justice IDR Cameron
Puisne Judge