DPP v Alu [2015] SBHC 56; HCSI-CRC 86 of 2015 (22 June 2015)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 86 OF 2015

DPP

V

RICHARD ALU AND HAMILTON TOREMANA

Date of Judgment: 22 June 2015

Director for Public Prosecution for the Crown
Nigel Galo for Respondents

JUDGMENT

MWANESALUA J:

1. The Respondents, Richard Alu and Hamilton Toremana, were charged with simple Larceny under section 261 of the Penal Code. It was alleged that between 30 January 2015 and 31 January 2015, they stole 1 x 200 litres petrol drum, the property of the Solomon Islands Government.

2. The case came before the Magistrate Court at Auki on 25 February 2015, only for Mention and not for Trial. The Respondents have yet to enter their pleas to the charges. The Crown made an application to discharge the Respondents under section 190 (2) (ii) of the Criminal Procedure Code (CPC) on the basis that there was insufficient evidence against the Respondents.

3. On 26 February, 2015, the presiding Magistrate delivered a written ruling on the application with the following orders:

"(1) that the application by the Crown to withdraw the simple larceny charges against the Defendants, Hamilton Toremana and Richard Alu, is hereby refused.

(2) that the matter is adjourned to 2nd of March, 2015 for the Defendants to make their plea and set a trial date when the Crown Counsel will also be available".

4. Counsel for the Respondents opposed the application. They contend that the Magistrate had no power to have the charge withdrawn. This appeal should therefore be dismissed. They cited three cases in support.

5. The first case is Director of Public Prosecution –v- Clement Tom[1] where Ward CJ then stated:

"whenever a prosecutor seeks to withdraw a charge under s. 189[2], he requires the consent of the court. Normally that will be given but only after enquiry by the court as to the reasons for the withdrawal. If there is any doubt as to the propriety of the application, the court should refuse and require the prosecution to proceed. If necessary, the court can require evidence of the reason".

6. The second case is DPP –v- Dao Dao[3] the reason for withdrawal put forward by the Prosecution was "the Prosecution would be free to bring back the case once essential evidence became available". His lordship Ward, CJ, as he was then said:

"This was a clear case of seeking to withdraw for improper reasons and the Magistrate should have refused his consent to withdraw." (Respondent's emphasis).

7. The third case is Regina –v- Solo Sade[4]. His Lordship Palmer ACJ as he was then said:

"In any event, I find the reasons (lack of transport and in-cooperativeness of the accused) given to be inadequate to justify an application for withdrawal".

8. (1) This Court appreciates the position of crown in the case. It seems that the police docket in the case has never been forwarded to the office of the Director of Public Prosecution to decide on whether to prosecute.

(2) The decision whether or not to prosecute is the most important step in the prosecution process. In every case, great care is to be taken in the interest of the victim, the accused and the community at large, to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the Criminal Justice System.

(3) There is discretion in initiating prosecutions. The initial consideration in the exercise of this discretion is whether the available evidence establishes a prima facie case; that is to say, on the basis that the available evidence is accepted without reservation by the Court, it could be satisfied of the accused's guilty beyond reasonable doubt.

(4) In a situation where a prosecution has already commenced but on objective assessment there is not, nor there will be a prima facie case, the Prosecution would not proceed. In that case, the charge will be withdrawn under the relevant provision of the CPC.

(5) The second major consideration is whether in the light of the provable facts and the whole of the surrounding circumstances, the public interest required the prosecution to be pursued. In deciding whether the public interest requires a prosecution, a wide variety of factors can be taken into account. Dominant in this context is that ordinarily the public interest will not require a prosecution unless it is more likely than not that it will result in a conviction.

(6) Other factors which may arise for consideration in determining whether the public interest requires a prosecution include the seriousness or triviality of the offence; the youth, age, physical health, mental health, or special infirmity of the accused; any mitigating or aggravating circumstances; the staleness of the offence; the prevalence of the offence and the need for deterrence; whether the consequences of any resulting conviction would be unduly harsh and oppressive; whether the offence is of public concern; the availability and efficacy of any alternatives for prosecution.

(7) A decision whether or not to prosecute is never influenced by, inter alia, personal feelings concerning the accused or the victim; advantage or disadvantage to the Government; or the possible effect of the decision on the person or professional circumstances of the person responsible for making the decision to prosecute.

9. The Respondents in this case are yet to take their pleas when the Prosecution sought to withdraw the charge. And the case has not yet reached the stage where the Respondents would be called upon to make their defence to the charges against them.

10. With respect, in the view of this Court, this is a case where Leave should have been granted by the Magistrate for the withdrawal of the charges under s. 190 (2) (ii) of the CPC. The orders of the Magistrate Court are therefore hereby quashed. Order accordingly.

THE COURT

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^[1] (1988) SBHC; [1988 – 1989) SILR 118
^[2] Now s. 190 of the CPC
^[3] [2010] SBHC 142; HC-CRAC 162 of 2001
^[4] Paragraph 7 of the Ruling