Regina v Kabolo [2016] SBHC 100; HCSI-CRC 284 of 2014 (20 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

Regina

v

Henley Kabolo, R.V. Kabolo and Tana Kabolo

Criminal Case No. 284 of 2014

Date of Hearing: 18^th May 2016
Date of Judgment: 20^th May 2016

Mr. Ifuto’o for the 1^st Applicant
Ms Karani S for 2^nd Applicant
Mr. Holara for 3^rd Applicant
Ms. Olutimayin for the Respondent

RULING ON APPLICATION FOR STAY CRIMINAL PROCEEDINGS

Kouhota, PJ:

Background

1. This is an application for a permanent stay of criminal proceeding in respect of the three applicants namely, Henley Kabolo, Reuben Vasoko Kabolo, and Tana Kabolo. They were each charged with one count of murder, contrary to section 200 of the Penal Code. The three applicants, one is the father of the deceased, one is the uncle of the deceased and the 3rd is a younger brother of the deceased. The charges came about following the death of the deceased, Hilton Kabolo at Kuzi village, Kolobangara, in the Western Province on 24^th November, 2014.
   
2. There is no record on the Court file to show when the three applicants were committed for trial by the High Court and whether the preliminary inquiries were conducted separately or not. However, I gathered from the submissions by Counsel that the first applicant, Mr Henley Kabolo, was committed for trial by the High Court after a short form preliminary inquiry by the Magistrate’s Court and remanded in custody. The 2^nd and 3^rd applicants were committed to the High Court after long form preliminary inquiry and released on bail. The dates of those committal proceedings are not known as there was no record of the preliminary inquiry proceedings on the Court file. I will return to this issue later on in my ruling: suffice to say at this stage that the manner in which the proceedings were conducted seems unsatisfactory.
   
3. The matter was set for trial on 9^th May, 2016. When the Court convened on that date, Counsel for the applicants informed the Court that they do not have copies of the depositions taken at the preliminary inquiry at the Magistrate’s Court. Section 223 of the CPC provides that a person who has been committed for trial before the High Court shall be entitled at any time before the trial to have without payment, a copy of the statements of witnesses read over in accordance with the provision of section 211 (c) of the CPC or in case of an inquiry held in accordance with the provisions of section 212 CPC, the depositions as the case may be. The Court committing an accused for trial by the High Court is required to inform the accused of this.
   
4. Counsel for the applicants submits that this would prejudice their clients if the trial continues. They submit that the depositions were crucial to the defence case and they need to have copies to enable them to cross examine witnesses. Following this, the Court adjourned to allow time to find the depositions but nothing was found either in the Office of the Registrar of the High Court, or in the Court file. Counsel Mr. Holara, also informed the Court that they had checked with the Central Magistrate’s Court but the Magistrate’s Court clerk could not find the depositions on the Magistrate’s Court file as well.
   
5. Counsel for the applicants therefore filed a joint application on behalf of the three defendants to have the criminal proceeding against them stayed because of the missing depositions, which they submit are crucial to the defence case. The Defence submits that without the depositions, the applicants would not receive a fair trial and the applicants would be prejudiced as they would be denied the opportunity to cross-examine the prosecution witnesses on the depositions and any inconsistencies in the evidence they give at the trial.
   

Grounds in support of Stay Application

6. Neither the applicants nor their Counsel filed any sworn statements to state how the missing depositions would result in an unfair trial for the applicants. All that the Counsel did was filed a joint written submission and then made oral submission in Court based on their written submission. The line of argument advanced by Counsel for the applicants was that, the loss of the depositions made in the long form preliminary inquiry at the Magistrate’s Court would deny the applicants the opportunity to cross-examine prosecution witnesses on any inconsistency regarding their evidence. This Counsel submits that the ‘loss of depositions at the Magistrate’s Court will put the defendants through a circumstance that they will be denied the opportunity to prepare and advance their cases, and the opportunity to cross- examine the two witnesses on any inconsistence that may arise at the trial proper, which will then deny the three defendants of a fair trial.
   
7. For reasons I will touch on later in my ruling, it is pertinent to state and examine the provisions of the Criminal Procedure Code (CPC) relating to preliminary inquiries and their purpose. The provisions relating to preliminary inquiry are set out in the Criminal Procedure Code, Part VII. The CPC provide for two forms of preliminary inquiry a Short Form PI and a Long Form PI (sections 211 and 212 of the CPC).
   
8. As this application is concerned with missing depositions of a long form preliminary inquiry, it is desirable that I set out briefly the process of a long form Preliminary (long form PI).
   
9. By virtue of Sections 212, 215, 216 and 219 of the CPC, a Magistrate conducting a long form PI shall;
   
   • (i) the commencement read over and explain to the defendant the charge in respect of which the inquiry is being held;
     
   • (ii) explain to the accused that he shall have an opportunity later on in the preliminary inquiry to make a statement if he so desires;
     
   • (iii) explain to the accused the purpose of the preliminary inquiry;
     
   • (iv) in his presence, take down in writing, or cause to be taken down, the statements on oath of those who know the facts and circumstances of the case, referred to as depositions, including any exhibits
     
   • (v) give an opportunity to the accused( legal representative) to cross examine each witness called by the prosecution;
     
   • (vi) record all answers given in such cross examinations;
     
   • (vii) as the statement of each witness is completed, ensure that it is read over to him in the presence of the accused, and shall if necessary, correct such statement;
     
   • (viii) if a witness denies the correctness of any part of the statement when the same is read over to him, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary;
     
   • (ix) if the statement is taken down in a language different from that it was taken down, the statement shall be interpreted to him in a language which he understand;
     
   • (x) ensure that each witness signs or attests by his mark their depositions;
     
   • (xi) sign such depositions;
     
   • (xii) if he considers that such statement discloses or on the evidence as it stands there are sufficient grounds for committing the accused for trial;
     
     • (a) Satisfy himself that the accused understands the charges;
       

(b) Ask the accused whether he wish to make a statement in his defence;

(xiii) Give the prosecution the right to reply;

(xiv) make an order regarding the retention of exhibits;

19. Formally commit the defendant to the High Court if he is satisfied that there are sufficient grounds to do so, having considered the evidence;

(xx) Require the accused to plea to the charge/s;

(xxi) Ask the accused whether he:

(a) intends to call witnesses at the trial, other than those called in the course of the preliminary inquiry; and

(b) desire to give their names and addresses so they may be summoned and

(xxii) Upon committing the accused for trial to the High Court, either

(a) admit him to bail; or

(b) send him to prison for safe keeping.

10. The purpose of a preliminary inquiry is to determine whether there is a sufficient case or evidence or grounds to put the accused person on his trial by the High Court. As such, any statements, depositions or evidence received at the preliminary inquiry are for the purposes of the Magistrate to determine if there is a sufficient case, grounds or evidence to commit the accused person for trial by the High Court hence in my view, they do not automatically form part of the evidence before the High Court on which the guilt or innocence of the accused will be determine. The preliminary inquiry affords an accused person ample time to prepare his case to oppose a serious charge. Thus in fairness to the accused person and for the High Court to invoke its powers to try the offence, a proper committal has to be made and this means the Magistrate must fully comply with the procedures set out in Part VII of the Criminal Procedure Code and keep records to show that the provisions have been complied with.
    
11. In R V Sethual Kelly & Gordon Darcy ( unrep. Criminal Case No. 2 of 1996, Awich J at page 3-4 stated:
    

“...A fundamental principle in the English Common Law system on which the system in Solomon Islands is based, is that in trial on charge of felony, generally the more serious the offences, the accused must be made to know the serious charge against him and the facts upon which the charge is based, well before his trial. That affords him ample time to prepare his case to oppose the serious charge. That advance knowledge is conveyed to him in proceedings known as preliminary inquiry. It might take the long form of calling witnesses [long form] or simply reading the charges and depositions [short form] and given copies to the accused. The magistrate is required to protect the accused by discharging him if the magistrate does not find sufficient evidence upon which to commit the accused to the High Court on the serious charge for trial there. That of course is subject to the application of the DPP under section 217 of the CPC. That process protects accused from baseless serious charges.”

Law on Stay of Proceedings.

12. The High Court was established under Section 77 of the Constitution, its powers are also derived under the same section. Section 77 of the Constitutions states “...There shall be a High Court of Solomon Islands which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceeding under any law and such other jurisdiction and powers which may be conferred on it by this constitution or by parliament. By virtue of this section, the High Court also has inherent jurisdiction therefore it has the jurisdiction to deal with this type of application by virtue of its inherent jurisdiction.”
    
13. In Filia v Regina [2005] SBHC 155, it was stated that the Court has an inherent jurisdiction to prevent an abuse of process.
    
14. The present application is for a permanent stay of criminal proceedings, the principle to be considered in whether to grant a stay have been covered in the Counsel’s submissions and the various case authorities referred to by Counsel but none stood on all four as the facts of this case are different and involved more than just a loss of depositions but also a breach of the provisions of the CPC.
    
15. In William and others v. Spauttz [1992] HCA 34; (1991-1992) 174 CLR 509, AT 518-519 ...the majority judgment held...... “this jurisdiction to stay criminal proceedings has dual purpose. First, is to prevent an abuse of process. Second, is to prevent a criminal prosecution which will produce an unfair trial though the latter is also part of the abuse of process in the wider sense such as for improper purpose. The judgment went on to say that “if a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensure unless the prosecution is stayed.”
    
16. In my view this means that applicant has to show that the continuation of the proceeding would be so unfairly oppressive that it would constitute an abuse of process or to show actual prejudice if the trial ensured.
    
17. In the present case, the questions the Court need to ask itself is whether the lost depositions would result in the accused not been afforded a fair trial. The second is, whether there is no way that Court would remedy the situation in ensuring that the accused received a fair trial? The fact that the deposition are missing is not disputed. The evidence of the Central Magistrate’s Court clerk (criminal), Cecil Pohe, confirmed that he had searched for the depositions but he could not find them. However, there is no evidence that they have been destroyed. Nevertheless, they are currently not available to the defendants. I will return to the two questions I posed above but would pose another question; are the two missing depositions the only means that the defendants would rely on to properly or adequately make their defence and ensure they receive a fair trial? My answer to this would be in the negative. The documents before the Court shows that at least two of the Defence Counsel were involved in this case from the beginning and were present with their clients at the preliminary inquiry in which the now missing deposition were made. As such, if they are not negligence, it would be surprising if they do not have their own notes of the proceedings and of the evidence given at the long PI which they can use to cross-examine the two witnesses or the other prosecution witnesses. In view of this, the two missing depositions in my view would not prejudice the defendant’s case to amount to an extraordinary or exceptional circumstance, which would warrant this Court exercise its discretion to stay the criminal proceeding against the accused/applicants.
    
18. In Jago -V- The District Court of New South Wales (168) CLR 3, it was held that a permanent stay is a remedy of the last resort only used in most exceptional circumstances, where any trial would involve such oppressive unfairness incapable of been overcome that it would be an abuse of process.
    
19. There is another issue on which Counsel have not addressed the Court but it become apparent in the course of this proceeding and could be inferred from the evidence of Mr. Cecil Pohe; that is, there was a breach of the section 215 of the CPC which states ‘that an accused person shall be entitle to a copy of the deposition, evidence and exhibits tendered in the course of a preliminary inquiry’. Not only that but there is a likelihood other provisions of Part VII of the CPC may have not been complied with as well. I draw this conclusion based on the fact that there is no record of the proceeding in the Court file to show that the Magistrate had complied with the provisions of the CPC. Even the Court does not have any record of the deposition or the proceeding of the long form preliminary inquiry on the Court file. While the issue of breach of the provisions of the CPC was not raised by Counsel, this is a statutory breach and must be addressed by this Court under its supervisory powers and that I will do shortly. The lost deposition in my view would make it difficult for the defendants properly prepare their defence even if it does not go as far as making it an extraordinary or exceptional circumstance to warrant a stay of the proceedings.
    
20. Section 10 of the Constitution regarding a fair hearing is more about a person charged with a criminal offence been afforded a fair hearing within a reasonable time by an independent and impartial tribunal, established by law. In my view, it does not cover the situation as in the present case it was not shown that the missing depositions would cause an unreasonable delay to the hearing of the charge against the applicants. No such evidence is before the Court.
    
21. Jago v District Court NSW (1989) HCA 46, (1989) 168 CLR 23, Mason CJ said;

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such nature that nothing that trial judge can do in the conduct of the trial can relieve against its unfair consequences.

22. The present case, the only reason why the accused submits that they may not be given a fair trial is because of the missing depositions which they submit would render the trial unfair because it deny the applicants the opportunity to cross-examine the prosecution witnesses on any inconsistencies of the evidence they may give at the trial. There is no submission by Counsel for the applicants that to allow the trial to continue would be an abused of process.
    
23. The notion of a fair trial is not only in regards to fairness to the accused person but also to the victim as well as the public at large. Fairness entails a trial that ensures that accused is convicted, if guilty and acquitted, if innocent. That is what is justice is about.
    
24. Having considered the reasons for this application and all the circumstances of this case, I feel that the loss of deposition is a matter that can be remedied by the Court. Hence on this basis, the application for a permanent stay is refused and dismissed. However, in view of the apparent non-compliance with the provisions of Chapter VII of the Criminal Procedure Code and in the interest of justice and in the exercise of this Court’s supervisory powers over the subordinate Courts, I make the following directions orders;
    
    • (1) that the Honiara Magistrate Court made available copies of the depositions, exhibits and another documents tendered at the long preliminary inquiry available to the three applicants or their Counsel, within 21 days.
      
    • (2) that the same documents be transmitted to the Registrar of the High Court within 21 days.
      
    • (3) This matter is adjourned for Mention on 20^th June, 2016 at 9.30 am and for further direction, if necessary.
      
    • (4) Bail condition for Defendants 2 & 3 extended until that date; Remand Warrant for Defendant 1 extended until 9 June, 2016.
      

The Court

Emmanuel Kouhota
Puisne Judge.