Regina v Telili [2011] SBHC 67; HCSI-CRC 12 of 2011 (27 July 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 12 of 2011

REGINA

V

SIMON TELILI

HEARING: 20 July 2011
SENTENCE: 27 July 2011

R. Barry and R. Iomea for the Crown (Appellant)
E. Cade and G. Gray for the Respondent

Palmer CJ.

There are primarily two issues for determination before this court. The first relates to the question when proceedings are instituted by or with the consent of the DPP, under section 39(3) of the Dangerous Drugs Act ("the Act")? The second relates to the question whether there is a separate requirement to issue a certificate under section 39(6) stating when sufficient knowledge to justify a prosecution came to the knowledge of the Director of Public Prosecutions ("the DPP")?

The Respondent was charged by Police on 6th April 2010 contrary to section 8(a) of the Act for growing Indian hemp. He was released on bail to appear at the Magistrates' Court on 26 April 2010.

On 20 April 2010, the DPP signed a "Sanction to Prosecute" in respect of the Respondent.

The formal charge drawn up by police was entered in the record of the Central Magistrates' Court on 22nd April 2010 for first appearance on 26 April 2010. There is no dispute that when the matter was entered in the records of the Magistrates' Court on 22nd April for appearance on 26 April 2010, consent to institute proceedings by the DPP had already been issued.

Requirement to issue a certificate under section 39(6) of the Dangerous Drugs Act.

The learned Magistrate in the court below relying on the statement of the High Court in Tango v. Regina[1] ("Tango's case") had ruled that a certificate ought to have been issued under section 39(6) of the Act. In Tango's case, his Lordship Kabui J. as he then was, had observed that a separate certificate ought to have been issued under section 39(6) of the Act in the light of the factual situation before him, even though a sanction to prosecute had been issued. The sanction to prosecute was issued on 14 January 2004 and the charge laid by police against Tango on 8th April 2004. If that date of 14 January 2004 is also taken as the date when the DPP received evidence justifying in his opinion to institute proceedings then three months would have lapsed on 20th April 2004. This would have meant that the prosecution was done within time. The concern expressed by the learned judge was the possibility that the evidence justifying in his opinion to institute proceedings may have been received at a time earlier than 8th January 2004. If for instance, it had been received and the decision made on the 4th January 2004 for instance, then the prosecution which was initiated on 8th April 2004 would have been time barred. He had noted that the only way this could have been clarified was if a certificate had been issued by the DPP.

The factual circumstances in this case however are distinguishable for everything occurred within a very short span of time within the three months time limit. There was no confusion or uncertainty in this case for it was a matter of fact that proceedings were instituted within the three months time limit. It was not necessary therefore for a certificate to be issued under section 39(6) of the Act in the facts of this appeal.

Subsection 39(6) provides for two time limits within which proceedings may be brought. The first time limit is where it is specified under any other law. There is none in this case. Mention has been made of section 206 of the Criminal Procedure Code ("CPC") but this does not apply for it provides for a maximum penalty which does not exceed imprisonment for six months or a fine of one hundred dollars, or both, which is less than the maximum penalty on a summary conviction[2] of a fine of five hundred dollars, or six months imprisonment, or both. The only time limit applicable in this case therefore is the time of three months set out in that subsection.

I am satisfied the presiding Magistrate erred in requiring a certificate to be issued under section 39(6) of the Act.

Was the failure to obtain the sanction of the DPP before the Police laid charges against the accused unlawful?

The issue in relation to the requirement to obtain a sanction from the DPP arises from section 39(3) of the Act. That section provides:

"No person shall be proceeded against under paragraph (a) of subsection (1) unless the proceedings are instituted by, or with the consent of, the Director of Public Prosecutions;....".

The presiding Magistrate took the view that police couldn't charge the accused without a sanction from the DPP and therefore the charge laid on the accused on 6th April 2010 was without authority and therefore invalid. Subsequently the whole proceedings were invalid as well even though an authority to commence proceedings had subsequently been issued.

I am satisfied the presiding Magistrate erred in concluding that the laying of charge by the police without the sanction of the DPP was without authority, invalid and that rendered the whole proceedings null and void thereafter.

When the matter was entered into the court records on 22nd April 2010 for appearance on 26 April 2010, it cannot be denied that the proceedings were not being instituted without the consent of the DPP. But even if the contrary view is taken, that there may have been a defect (which is denied), that was cured by the time the matter came to court. By 22nd April 2010, when the matter was entered in the records of the Magistrates' Court and listed for appearance on 26 April, consent had already been obtained. The Magistrates' Court had jurisdiction to hear the case.

There is another reason why the submission that a consent must be obtained prior to the police laying a charge must also fail. The laying of a charge by the police and releasing on bail with a condition, which takes the form of a summons to appear before the court, is part and parcel of police powers of apprehension and detention for the purpose of instituting or commencing criminal proceedings against an accused, as expressly provided for under section 9 of the Act[3]. It cannot be said therefore that police action in laying a charge and releasing an accused on bail to appear in court on 26 April 2010 as being unlawful. Section 39(3) needs to be read in conjunction with police powers of apprehension and detention and bringing before the court. In addition, both section 9 and 39(3) of the Act should be read together with section 76 of the Criminal Procedure Code ("CPC"), as submitted by learned counsel, Mr. Barry for the Crown. That section complements both section 9 and 39(3) of the Act and describes the process of instituting a proceeding before the court. This can be done by the making of a complaint or by having an accused brought before a Magistrate who has been arrested without a warrant [3].

Subsection 76(3) further provides how a complaint can be made. It can be done orally or in writing and if orally, to be reduced to writing and signed by the complainant and the Magistrate.

It also provides in the case of a formal charge, drawn up by the police, to be deemed a complaint when it is presented to the Magistrate[4]. So for purposes of instituting a proceeding, the complaint is made when the formal charge is presented to the Magistrate, not before. Until that is done, while proceedings may have been instituted by the police in exercise of their duties, a complaint is made only on presentation of a formal charge to a magistrate.

The determinative point is when the matter is laid before the court. Up to that point of time, police actions are covered in the powers of apprehension and detention expressly provided for in section 9 of the Act and sections 18 and 23 of the CPC. The learned Magistrate erred therefore in saying that police action before the sanction was obtained was unlawful.

In a somewhat related case, Price v. Humphries[5], the justices of the Magistrates' Court declined to hear the case after prosecution had closed its case and defence had objected that they had failed to prove the requisite consent, which was required under the National Insurance Act 1946. Proceedings before the Magistrates' Court could not be brought except with the consent of, inter alia the Minister. In that case proceedings were "instituted" under section 53(1) of the National Insurance Act 1946 by the issue of a summons by the clerk to the justices, or the justice himself. The High Court allowed the appeal pointing out that the Magistrates' Court should have heard evidence of proof that the summons had been issued with the consent of the Minister. The High Court pointed out that there was a presumption in favour of a consent having been made when the summons was issued and that when the objection was made, the Magistrates' Court ought to have investigated that objection to determine if that was the case or not.

While the facts in this appeal are different, the issue is the same, whether at the time the matter came before the Magistrates' Court on 26 April 2010 a sanction had been issued. To that issue the answer in the facts of this appeal is clear; the sanction of the DPP had already been provided and so when the Magistrates' Court took carriage of the matter from 22nd April thereafter, there can be no doubt about the jurisdiction of the Magistrates' Court to deal with the case.

For the reasons enumerated in this judgement, the appeal must be allowed, the orders of the Court below quashed and the matter remitted to the Magistrates' Court to be heard afresh either before the same Magistrate or different Magistrate.

Orders of the Court:

1. Allow Appeal.
   
2. Quash orders of the Magistrates' Court dated 22nd November 2010.
   
3. Direct that the matter be heard afresh by the Magistrates' Court.
   
4. Direct that the Respondent to appear in the Magistrates' Court on Monday 8th August 2011 at 9.00 a.m.
   
5. Impose a bail of $500 in his own recognisance to appear at the said court and on the said date and time.
   

The Court.

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^[1] [2004] SBHC 39; HC-CRAC 174 of 2007 at page 2
^[2] Section 39(2)(b) of the Dangerous Drugs Act
See section 9: “(1) Any police officer may, upon a warrant, enter any place in which there is a reasonable ground for suspicion that raw opium, Indian hemp or coca leaf is kept or may be found so as to constitute an offence against this Act and may seize any raw opium, Indian hemp or coca leaf found there, together with baskets, jars or packages holding the same, and apprehend and detain any person suspected of owning the same.
(2) Any police officer may without warrant apprehend and detain any person carrying or conveying any raw opium, Indian hemp or coca leaf.
(3) Any person apprehended under the provisions of the foregoing subsections shall be taken as soon as may be possible before the court to be dealt with according to law.”

^[3] Subsection 76(1) of the CPC
^[4] See proviso to subsection 76(3) of the CPC: “...Provided that where proceedings are instituted by a police or other public officer acting in the course of his duty, a formal charge duly signed by such officer may be presented to the Magistrate and shall, for the purposes of this Code, be deemed to be a complaint.”
^[5] [1958] 2 Q.B. 353