Regina v Aipia [2015] SBHC 20; HCSI-CRC 372 of 2014 (13 February 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 372 of 2014

REGINA

V

Reginald Aipia

HEARING: 13th February 2015
JUDGEMENT (REVIEW): 13th February 2015

For the Crown/Applicant: Mrs. Sirepu Ramosaea
For the Defendant/Respondent: Mr. Wilson Rano

Palmer CJ.

• On or about 3rd November 2014, the Director of Public Prosecutions filed an application inter alia for stay and review of the orders of the Magistrates' Court dated 31st October 2014, which orders read as follows:
  

"1. The charge against the Accused contrary to section 13A of the Fisheries (Amendment) Regulation (13A) 2009 is dismissed having being instituted beyond 6 months contrary to section 206 of the Criminal Procedure Code.

2. The charge is thereby discharged under section 190(2)(b)(i) of the Criminal Procedure Code.

3. The beche-de-mer products seized by the Fisheries Officers in conjunction with the Police and currently in the custody of the Police to be returned to the Accused forthwith without further delay."

• The ground relied on for stay and review was on the basis that the presiding Magistrate erred in law when he discharged the defendant pursuant to section 190(2)(b)(i) of the Criminal Procedure Code without any legal basis.
  
• The matter came before his Lordship Justice Pallaras on 6th November 2014. After hearing Mr Kelesi of Counsel for the Prosecution, and Mr. Rano of Counsel for the Defendant, his Lordship Pallaras J. ordered a stay on the orders of the Magistrate dated 31st October 2014 discharging the Respondent, including a stay on the orders directing the return of the products to the Respondent. The matter was then supposedly adjourned for review.
  
• On or about the 9th February 2015 the matter came to my attention and after having perused the file, directed that it be listed forthwith for review on the grounds that there were two conspicuous errors of law on the face of the record which warranted the immediate intervention of this court.
  
• The Respondent had been charged under section 13A of the Fisheries (Amendment) Regulation 2009, which provides as follows:
  

"13A. A person who catches and retains, sells, exposes for sale, exports or is in possession for export, any beche-de-mer commits an offence and is liable on conviction to a fine not exceeding $100,000.00 or to imprisonment for a term not exceeding 4 months, or both."

• When the matter came before the Magistrates' Court on the 31st October 2014 for a pre-trial conference, an application was made by Mr. Rano of Counsel for the Respondent, under section 206 of the Criminal Procedure Code for the charge to be dismissed on the grounds that it had been filed beyond the six months' time limit. That section provides:
  

"Except where a longer time is specifically allowed by law, no offence, the maximum punishment for which does not exceed imprisonment for six months or a fine of one hundred dollars or both such imprisonment and fine shall be triable by a Magistrates' Court, unless the charge or complaint relating to it is laid within six months from the time when the matter of such change or complaint arose."

• In her sworn statement filed 3rd November 2014, Mrs Sirepu Ramosaea, Crown Prosecutor in the Magistrates' Court stated that she raised objection to the application on the basis that the section could not apply, for the maximum fine of $100,000.00 provided under section 13A of the Fisheries (Amendment) Regulation 2009, exceeded the limit of one hundred dollars specified by section 206 of the Criminal Procedure Code.
  
• That was the first error of law on the face of the record committed by the presiding Magistrate. He should have dismissed the application for strike out by the Respondent.
  
• The second error of law committed by the presiding Magistrate was the application of section 190(2)(b)(i) to dismiss the charge. That provision is confined to withdrawals of complaint by a prosecutor with the consent of the Court before a final order is passed. Mrs. Ramosaea denies that any withdrawal was made by her at that time and so the application of that section by the presiding Magistrate was also clearly erroneous and without basis in law.
  
• When the matter came before me today, I gave opportunity to Counsels in particular, Mr. Rano, if he had any other submissions to make to show why the review should not be completed.
  
• I am satisfied having heard Counsels, Mrs. Sirepu Ramosaea of Counsel for the Applicant and Mr. Rano of Counsel for the Respondent, and having read the records of the court dated 6 November 2014, the orders of the Court below and the application for stay filed 3rd November 2014, that the orders of the Magistrates' Court dated 31st October 2014 should be brought up to this court and quashed therewith and the matter remitted back to the Magistrates' Court for hearing de novo by a different Magistrate.
  
• I reiterate my concerns that Magistrates must be vigilant and alert to avoid making erroneous orders which have no legal basis and causing unnecessary costs and delays to the State and parties.
  

ORDERS OF THE COURT:

• The orders of the Magistrates' Court dated 31st October 2014 are brought up to this Court and quashed herewith.
  
• The matter is remitted to the Magistrates' Court for hearing de novo by a different Magistrate forthwith.
  

The Court.