Regina v Vangala [2011] SBHC 42; HCSI-CRC 168 of 2011 (25 May 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

PETER VANGALA

Date of hearing: 24 May 2011
Date of Judgment: 25 May 2011

Mr. R. Barry and N. Kesaka. for appellant
Mr. E. Cade and H. Fugui. for respondent

DECISION

Apaniai, PJ:

1. This is an appeal by the Crown under section 283 (1) of the Criminal Procedure Code (Cap. 7) ("CPC") against a decision of the Central Magistrate Court dated the 1st April 2011 dismissing charges laid against the Respondent, Peter Vangala, for want of prosecution.
   
2. The appeal was listed for hearing at 1.30pm this afternoon. However, due to my commitment to a hearing of an appeal to the Court of Appeal at 1.30pm today, both counsel have agreed that I need not hear them orally and that I make decision on this appeal on the basis of the written submissions filed by counsel on behalf of the parties. I am grateful to counsel for their decision and for their submissions which I have taken into account in this decision. I might add that Mr. Cade for the Respondent had not seriously contested the appeal in any material way. I am grateful for the concessions which he had properly made in his submission in relation to the appeal points.
   
3. According to the appeal records, the Respondent was charged with one count of rape contrary to section 137 of the Penal Code (Cap. 26) and two counts of indecent assault contrary to section 141(1)(a) of the Penal Code.
   
4. For the rape charge, it was alleged that the Respondent raped Karen Taguava at Gatokae Island, Western Province, on unknown dates between January and February 2011.
   
5. For the indecent assault charges, it was alleged that the Respondent indecently assaulted the same lady, Karen Taguava, on two occasions again at Gatokae village, Western Province, on unknown dates between January and February 2011.
   
6. The appeal records show that the charges were laid against Respondent on the 4th March 2011 and that the case first came on before the Magistrate Court at 2pm on the 5thMarch 2011. At that hearing, an application for remand was made by the prosecution and granted by the Magistrate Court. The case was then adjourned to 9am on the 18th March 2011 for mention. PC Sura'au appeared for the prosecution while Mr. Fugui of the Public Solicitor's office appeared for the Respondent.
   
7. At 9am on 18thMarch 2011, the Respondent again appeared in court represented by Mr. Gray of the Public Solicitor's office (who stood in for Mr. Fugui) while PC Akwai appeared for the prosecution. The case was then adjourned to 9am on 1st April 2011 for further mention. The reasons for the adjournment were that, first, Mr. Gray had not received any instructions from Mr. Fugui who initially appeared for the Respondent and, second, the prosecution was yet to obtain further statements from other witnesses in relation to the charges.
   
8. At 9am on 1st April 2011, the case again came on before the Magistrate Court. It appears that when the case was called, only Mr. Fugui for Respondent was present while no one appeared for the prosecution. As a result, the court struck out the charges and discharged the Respondent forthwith. There is nothing on record to show that Mr. Fugui had applied for the matter to be dismissed neither is there anything on record to show that the question of adjournment had been considered in the light of the non-appearance of the prosecution officers.
   
9. The reasons for the non-appearance of the prosecution were explained by Mrs. Mary Alasia and Mrs. Natalie Kesaka in their affidavits sworn on the 4th April 2011 filed herein in support of the appeal. These can be summarised as follows:-
   

(a) Mrs Alasia received the case brief from the police on 21st March 2011. However, shortly afterwards, the police took back the brief saying that they were still in the process of investigating the case.

(b) The police returned the brief to Mrs. Alasia in the afternoon on 31st March 2011. Upon receipt of the brief, Mrs. Alasia should have opened a DPP file for the case and register the case in the DPP database. That was not done, presumably because the brief was received late in the afternoon.

(c) It was in the morning of the next day (1st April 2011) at about 9.45am that Mrs. Alasia, while creating the case file, came across a note in the brief from the police saying that the case was listed for mention at 9am that morning. Mrs. Alasia immediately took the file to Mrs. Kesaka informing her that the case was listed for mention that morning and requesting that Mrs. Kesaka attend to the case. Mrs. Kesaka then proceeded to the Magistrate Court immediately.

(d) On arrival at the Magistrate Court, Mrs. Kesaka was told by a prison officer present at the court house at that time that the Respondent's case had just been struck out and the Respondent was accordingly discharged.

(e) Later that morning, Mrs. Kesaka saw the Chief Magistrate about the case and the matter was listed for 1.30pm that day before the magistrate who dismissed the case earlier that morning. However, at 1.30pm hearing, the magistrate refused to review his decision saying that he had made a decision and that the only way to remedy his decision was by way of appeal to the High Court. This appeal was filed as a result of that decision.

10. Two grounds have been advanced in this appeal. The first is that the magistrate erred in dismissing the charge without proper reasons pursuant to section 187 of the CPC. The second is that the magistrate erred in not granting an adjournment pursuant to section 191 of the CPC.
    
11. In my view, this appeal can be disposed of by answering the simple question whether the magistrate had committed an error in not adjourning the case. If the magistrate had committed an error then it must necessarily follow that the dismissal of the charge was also erroneous. By the same token, if he was right then it must necessarily follow that the dismissal was proper.
    
12. To answer the question whether the magistrate had committed an error in not adjourning the case, the starting point is section 187 of the CPC. In simple terms, that section says that where the accused appears but the complainant does not appear either in person or by advocate, the court is entitled to dismiss the case unless proper reasons exist justifying an adjournment. In my view, the word "unless" in that section indicates that before the magistrate dismisses a case, he must consider the question of adjournment.
    

13. The process of determining whether or not to adjourn a case involves consideration of certain factors. His Lordship,Chief Justice Palmer, in R v Kokili[1], has clearly stated what those factors are when he said:

"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 the victim in seeing that the matter is brought to trial or heard in court, as well as balancing the interests of an accused, before making any decision."

14. In the present case, the court transcript shows that the magistrate had dismissed the case simply because the prosecution did not appear. There is nothing in the records to show that he had considered the question whether or not to adjourn the case. Serious criminal offences such as rape and indecent assault, or any other serious offences for that matter, should not be easily dismissed on the basis of the non-appearance of one of the parties to the case. The issue of adjournment must always be considered properly before any decision is made to dismiss a case.

15. In situations where a case has been listed for mention on a particular motion day along with other cases and one of the parties to the case does not appear when the case is called, it would be proper that the case be stood over and to allow other cases to proceed before calling on the case again. The reason is that there might be a valid reason why the parties, or one of the parties, did not turn up, or turned up late, when the case was called. It would not be proper for such case to be dismissed simply because the parties, or one of the parties, did not appear when the case was called. Fairness demands that proper investigation be carried out into the reasons for the non-appearance of the party concerned before any consideration is made in regards to the question of dismissing the case and in my judgment it is only in exceptional circumstances that a case should be dismissed for non-appearance of a party to the case.

16. In the present case, I am satisfied this is a case where the Magistrate should have exercised his discretion in favour of granting an adjournment. The charges are of a very serious nature. The offences are alleged to have been committed at the beginning of this year. The non-appearance by the prosecution that morning was not deliberate. The rights of the Respondent were not adversely affected by the non-appearance.

17. For those reasons, I allow the appeal and make the following consequential orders and directions to ensure that the case progresses without further delay:

(1) The orders of the Magistrate Court dated 1st April 2011 dismissing the charges against the Respondent are quashed and the charges re-instated.

(2) The matter be remitted to the Magistrate Court (Honiara) for Preliminary Inquiries to be conducted.

(3) Matter to be listed for mention and/or directions at the Central Magistrates Court at 9.00am on Thursday 26th May 2011.

(4) The Respondent shall be brought back into custody and shall be at liberty to apply for bail at any time thereafter.

THE COURT

Justice JamesApaniai
Puisne Judge

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^[1] CRC 320 of 2009; See also R v Aitorea CRC No. 64 of 2011.