Regina v Maclaine [2014] SBHC 8; HCSI-CRC 08 of 2014 (10 February 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(MWANESALUA J)

CRC No. 08 of 2014

REGINA

V

QUINTIN HUGH MACLAINE

Date of Hearing: 31 January 2014
Date of Ruling: 10 February 2014

Mr Joel and Mr Iomea for the Crown
Ms Garo for the Applicant

RULING

MWANESALUA J: This is an application by Mr Quentin Hugh Maclaine ("the applicant") filed on 16 January 2014 for the following orders:

(1) An order that the matter of Regina –v- Quentin Hugh Maclaine Criminal Case No. 908 of 2013 currently awaiting judgment before Deputy Chief Magistrate Rodgers Tovosia be transferred in its entirety forthwith before the High Court.

(2) A further order directing the Registrar of the High Court to forthwith, upon being served with a copy of the signed, sealed and perfected orders of proceedings and exhibits, in respect of the matter of Regina – Quentin Hugh Maclaine Criminal Case No. 908 of 2013 and have the same delivered to the custody of the presiding Judge of the High Court of Solomon Islands.

(3) Consequential to the orders sought in paragraphs (1) and (2) hereof, a declaration that the proceedings in the matter of Regina –v- Quentin Hugh Maclaine Criminal Case No. 908 of 2013, were instituted in breach of the provisions of Section 126 of the Criminal Procedure Code (Cap.7).

(4) Consequential to the orders sought in paragraph (1) and (2) hereof, a permanent stay of proceedings be granted in the matter of Regina –v- Quentin Hugh Maclaine – Criminal Case No. 908 of 2013, on the basis of an abuse of process, prejudicing the defendant's right to a fair trial within a reasonable time by an impartial and independent Court.

(5) Consequential to the orders sought in paragraphs (1) and (2) hereof, and in the alternative, to the orders sought in paragraph (3) and (4) hereof, order dismissing the charges against the defendant and verdicts if not guilty, be entered in respect of each charge against the applicant.

(6) Costs of this application be in the cause.

(7) Any other orders that the Court deems fit to make in the circumstances of this Case.

2. Relevant Facts. The applicant is a citizen of Australia. He entered the country on or about 12 September 2013 on a visitor's permit. On or about 20 September 2013, he was charged with eight counts of insulting the modesty of women and one count of importation of prohibited or restricted goods. The trial started on 2 December 2013 and completed on 20 December 2013. The presiding Magistrate was the Deputy Chief Magistrate, Mr Rogers Tovosia, ("Mr Tovosia"). On or about 23 December 2013, the applicant's bail condition was varied to allow him to the travel back to Australia to spend Christmas with his family. He left for Australia on 24 December and returned to Honiara on 7 January 2014 in the afternoon. At about 9.00 am on 9 January 2014, the applicant received a phone call from Mr Tovosia proposing that the applicant gave him $50,000.00 for a decision of acquittal on his case. Mr Tovosia said that he needs the money to buy a car. On 15 January 2014, at 1.45pm, there were three phone calls from Mr Tovosia on phone [phone] but the applicant chose not to answer. At 5.04 the same day, Mr Tovosia phoned the applicant again asking for when he would get his money as payment for acquittal. The phone call was recorded and although flawed, the applicant recognised the voice to be that of Mr Tovosia.

3. Applicant's Submissions. There are two main submissions made on behalf of the applicant. The first is that, the Director of the Public Prosecutions had not given leave and no certificate had been signed by him to institute Criminal Case No. 908 of 2013 against the applicant, which is a breach of Section 126 (1) of the Criminal Procedure Code (Cap. 7) ("CPC"). The second is that the applicant has not been afforded a fair hearing within a reasonable time by an independent and impartial court established by Law as provided in Section 10 (1) of the Constitution.

4. Respondent's Submissions. The Respondent contends that Section 126 of the Criminal Procedure Codes does not apply to the charges in Criminal Case No. 908 of 2013 before the Magistrates' Court. The section is intended to cover foreigners who committed offences on high seas either in boats or fishing vessels and so on. The applicant has had a fair trial, that there is no basis to stay Criminal Case No. 908 of 2013. That the abuse of process as alleged against Mr Tovosia are yet to be established. The case should be transferred to another Magistrate or High Court for retrial or adoption of the evidence and give judgment.

5. Law. This is an application for orders to be made under Section 38 of the Magistrates' Court Act [Cap. 20] and Section 313 of the (CPC). Pursuant to Section 38 (1) of the Magistrates' Court Act, the High Court may, at any time and at any stage before judgment, transfer any matter before a Magistrate's Court to any other Magistrate's Court or to the High Court. Section 313 of the CPC empowers the High Court in exercising its criminal jurisdiction to issue any writ or order which may be issued by the High Court of Justice in England. Section 126 of the CPC covers trials of non-citizens who commit offences (acts, neglects or defaults) committed within Solomon Islands waters.

6. Decision. The offences tried in Case No. 908 of 2013 were committed in a Motel on dry land. There is no evidence to show that they were committed within Solomon Islands waters as stated in Section 126 of the CPC. As the offences which the Applicant had been charged were committed on land, there was no need for the Director of Prosecution to give his consent before the applicant is charged. The applicant was charged in September 2013. The trial started and closed for judgment in December 2013. The Court is of the opinion that there is no inordinate delay in Case No. 908 of 2013.

7. The Court will accordingly make the following orders pursuant to Section 38(2) of the Magistrates' Court Act:

1. Refuse all the orders sought in the application.
   
2. That there be a fresh trial of the Applicant in the Magistrate Court by another Magistrate's Court.
   
3. That the entirety of Case No. 908 of 2013 be delivered to the custody of the Registrar of the High Court within 4 days of the Ruling.
   
4. That this Court through the office of the Registrar of the High Court transfer case file on Case No. 908 of 2013 to another Magistrate to hear the Case de novo not later than 21 days from the date of this Ruling.

Order accordingly.

THE COURT