Regina v Kokili [2010] SBHC 90; HCSI-CRC 320 of 2009 (28 December 2010)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

SITTING AT Honiara

REGINA

V

REGINALD KOKILI

Hearing: 14 December 2010
Ruling: 28 December 2010

R. Barry and Fineanagonofo for the Crown/Appellant
M. Bird for the Respondent

Palmer CJ.

1. This is an appeal by the Crown against the orders of the Magistrates' Court dated 15 April 2009 in which the Magistrates' Court refused an application by the Police Prosecutor for adjournment and dismissed the charge against the defendant, Reginald Kokili.
   
2. The defendant had been charged for receiving stolen property, being 622 bags of copra. The case was listed for trial on four separate occasions; the first on 30 July 2007, the second on 7th January 2008, the third on 15 April 2008, and the fourth on 15 April 2009. At the first trial date one of the witnesses for Prosecution was not available as he had been expelled from the country and so the case had to be adjourned. At the second trial date it was vacated due to financial difficulties. On the third trial date the defendant failed to appear. On this occasion all the witnesses for Prosecution turned up for the trial and the prosecution was ready to proceed with the trial. On the fourth occasion, the boat on which witnesses for Prosecution were to be brought in failed to call in at Yandina to pick them up; the accused turned up on this occasion.
   
3. At the Magistrates' Court hearing, Ms. Bird, counsel for the Respondent applied to have the matter dismissed or stayed; she relied on sections 191 and 192 of the Criminal Procedure Code ("CPC"). The presiding Magistrate accepted her application and dismissed the charge. In his reasons, he made references to section 187 of the CPC and section 10(1) of the Constitution, that the matter had been to court on so many occasions and concluded that no proper reason had been advanced for the trial to be adjourned.
   
4. The Appeal Case. The Crown's appeal is based on the ground that the Magistrate erred in the exercise of his discretion in not granting an adjournment sought by the prosecution. Mr. Barry for the Crown argued that contrary to the Magistrate's finding, proper reasons had been advanced at the hearing. These included the non-availability of Crown witnesses at the hearing which was a matter beyond the control of the Prosecutor. Mr. Barry argued that the presiding Magistrate should also have taken into account the overall interests of justice in the matter; the charge being serious and that all previous delays had been for proper reasons not attributable in all to the prosecution and that some were caused by the defendant himself. The presiding Magistrate therefore ought to have granted an adjournment and erred in the exercise of his discretion.
   
5. Mr. Barry relied in his submissions on the principles laid down in House v. The King (1936) 55 CLR 499 by the High Court of Australia, as applicable. The general principle laid down is that an applicant who challenges the exercise of a discretion must establish that the trial Judge acted upon a wrong principle, or allowed extraneous or irrelevant matters to guide him, or mistook the facts, or failed to take into account some material consideration. Mr. Barry says that sections 187 and 191 of the CPC when read together, give the court power to adjourn matters 'in its discretion' and for a 'proper reason'. The presiding Magistrate however re-formulated the test too narrowly when he said that the test was "whether some proper reason had been advanced for the request".

He submits that a magistrate is obliged to take into account the overall interests of justice. He relied on the learned Author in Ross on Crime[1], which cited R v. Cox [1960] VicRp 102; [1960] VR 665 at 667 that:

"The judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a different matter."

Mr. Barry submits that the presiding Magistrate also failed to take into account the interests of justice when he refused adjournment.

6. The Law. Section 187 of the CPC gives the Magistrates' Court discretion to dismiss the charge or adjourn for a 'proper reason', where the complainant or his advocate does not appear at the hearing. Section 191 gives the court a general discretion to adjourn a matter to a specific date and place provided it shall not be for more than thirty days or fifteen days if he is remanded in custody. Section 192 gives the court power to dismiss the charge where the complainant does not attend at the hearing or further hearing of the case.
   

6.1 I concur with the submissions of Mr. Barry that when sections 187 and 191 are read together, those sections do confer a discretion on the court to adjourn for a 'proper reason' when the complainant or his advocate does not appear.

7. The issue. Did the presiding Magistrate err in the exercise of his discretion to refuse to grant an adjournment in the circumstances of this case?
   

Each application for adjournment is to be assessed on its own merits. Previous applications for adjournment should be considered only in so far as they are relevant to the application at hand.

8. Decision. The facts in this case showed that the prosecutor had provided the presiding Magistrate with the reason why he could not proceed that day. His witnesses had not arrived as expected on the boat which was supposed to pick them up at Yandina and this was a matter beyond the control of the prosecutor.
   
9. The presiding Magistrate was obliged to take into account the reason given for the application for adjournment. I am satisfied he failed to take adequate account of that reason which was a valid and proper reason for adjournment. By giving undue weight to the overall fact of delay and expense of the accused he erred and failed to give due weight to the overall interests of justice in the case and thereby denied prosecution the opportunity to present its case.
   
10. I am also satisfied this was not a case where the delay was so long as to be unconscionable, inordinate or inexcusable and to warrant the court intervening in that manner. Previous delays were explainable and adjournments had been granted on the merits of each occasion. There was an equally compelling reason given that was excusable in the circumstances why prosecution could not present its case that day.
    
11. A court is obliged to carefully balance the interests of justice, the seriousness of the case, the public interest at play in bringing accused persons to trial, the costs and time expended in investigations, the interest of victims in seeing that a matter is brought to trial or heard in court, as well as balancing the interests of an accused, before making any decision. I am satisfied the presiding Magistrate failed to take adequate account of the reason advanced for the adjournment and thereby erred in the exercise of his discretion.
    
12. I am also satisfied there is a substantive procedural error in the way the presiding Magistrate disposed of that case which also warrants the intervention of this court. While the Magistrate had discretion to consider whether to grant an adjournment or not, the facts of the case did not bring the matter within the provisions of section 187 or 192 of the CPC which would then have conferred power on the court to dismiss the charge. In the circumstances therefore where he had declined to grant an adjournment, he was obliged to require prosecution to present its case. For that reason also I am satisfied the appeal should be allowed.
    
13. I am satisfied the appeal should be allowed, the orders of the Magistrates' Court quashed and the matter remitted back to the court below for a new trial date to be fixed.
    

ORDERS OF THE COURT:

1. ALLOW APPEAL.
   
2. QUASH ORDERS OF THE MAGISTRATES' COURT DATED 15 APRIL 2009.
   
3. MATTER REMITTED TO THE MAGISTRATES' COURT TO BE RE-LISTED FOR TRIAL.
   
4. MATTER TO BE CALLED AT THE MAGISTRATES' COURT (HONIARA) FOR MENTION/DIRECTIONS ON MONDAY 17 JANUARY 2011 AT 9.30 AM.
   

THE COURT.

---

^[1] 4^th Edition, pp. 49 – 51