REGINA – V- NELSON MAETA, JOHN NELSON ROSS AND GORDON BILLY 			  MARK 

HIGH COURT OF SOLOMON ISLANDS 
(Mwanesalua, DCJ) 

Criminal Jurisdiction

Criminal Appeal Case No: 284 of 2015

Date of Judgment/Sentence:   8 August 2016	

Mr. George KS Gray for the Appellants	
Mr. Braddley Dalipanda for the Respondent

JUDGMENT

Mwanesalua, DCJ:   

1.	The Appellants were each charged with one count of false pretense under Section 308(a) of the Penal Code Cap. 26). Each accused pleaded not guilty to his charge.

2.	The particulars of their offence was that they at Panatina in Guadalcanal Province, on unknown dates between 1st July 2011 and 30th August 2011, by false pretense sold three fake gold bars from former Gold Ridge Mine with intent to defraud, did obtain from a person namely Hypolite Taremae a sum of $300,000.00.

3.	They applied to the Magistrate’s Court for a permanent stay of prosecution against each of them. On 7th April 2015, their respective counsels filled amended application for a permanent stay of criminal proceeding laid against each of the Appellants.

4.	The applications were premised on the following grounds:

(a)	The complainant Hypolite Taremae acted in breach of sections 58 and 	63 of the Mines and Minerals Act (cap. 42) hence, the alleged transactions giving rise to the charges against the Applicants were illegal and unlawful in the circumstances;

(b)	Because of the illegality of the alleged transactions as stated in 	paragraph(a) above, the complainant Hypolite Taremae came to court 	seeking justice with unclean hands, therefore, he has no right to be 	protected by law; and

(c)	That in the interest of “high public policy” the court has inherent 	jurisdiction to control and protect the integrity of its administration of 	criminal justice from abuse;

(d)	That the court to continue to prosecute the case against the applicants would bring into disrepute the integrity of the administration of the court process.

5.	The Application for a permanent stay of prosecution was made in reliance on the relevant provisions of the Mines and Minerals Act (cap. 42) and on relevant principles of Common Law and equity.

6.	On or about 23rd April 2015, defense counsels filed “submissions on the Application for permanent stay of criminal prosecution” in the Magistrate’s court, the Application was then fixed to be heard on 21st May 2015.

7.	On that said date of 21st May 2015, instead of hearing the submissions by the parties on the Application, the Learned Magistrate made a ruling on it.  In his ruling, the Learned Magistrate said that the application was premature and tantamount to an abuse of process. The court has limited jurisdiction to stay proceedings. Accordingly, the Learned Magistrate refused to stay the proceeding.

8.	The Appellants instructed their respective counsels to appeal the Learned Magistrate’s ruling to the High Court.  Their counsels did accordingly.

9.	The Appellant’s Petition of Appeal: 

1.	The Learned Magistrate erred when he refused to hear the Application and held that the Application was premature.

2.	The Learned Magistrate erred in law when he held that the Application was an abuse of process and ruled against it.

3.	The Learned Magistrate erred in law when he held that the Magistrate Court has limited jurisdiction to stay the proceedings and that the Application was ill-conceived.

10.	Nelson Maeta, Gordon Billy Mark and John Nelson Ross were charged respectfully on 31st October 2014, 8th November 2014 and 25th November 2014.  They all pleaded not guilty to the charges. On 2nd March 2015, they made joint application for permanent stay of criminal proceedings against them. On 21st May 2015, the Acting Deputy Chief Magistrate without hearing submissions from both the prosecution and the defense refused to grant a stay of proceedings against the defendants. 

11.	It was clear from the ruling of the Magistrate’s court, that the court envisaged a full trial to be before the Magistrate’s court.  Principal Magistrates court have jurisdiction to try cases under section 308(a) of the Penal Code which carries a sentence of five years impost (see the Magistrates’ courts (increase of jurisdiction) (1963) order – LN 181 1964.

12.	There is evidence that the three faked gold bars were tested for gold.  They were made up of lead, chlorine, Sulphur, calcium, silicon, antimony, potassium, asenium and copper but no gold in them.

13.	There is an issue which require determination in this case. It is whether a magistrate has power to grant a permanent stay in this case? The Magistrate court is created by a statute.  There is no power given to a magistrate in the magistrate court act to impose permanent stay in criminal cases.

14.	In my view such power is vested in the Director of Public Prosecution under Section 91 (4) © of the constitution.

15.	However, the learned magistrate did not consider the breach by the complainant Hypolite Taremae of section 58 of the minerals Act [cap. 42]

16.	Section 58 covers the obligations of licensed gold dealers and section 63 covers the penalty for illegal gold dealing. This penalty is a fine not exceeding twenty thousand dollars or imprisonment for a term of not exceeding five years or to both such fine and imprisonment.

17.	There is provision under the Magistrate’s Court Act [cap. 20] under which a Magistrate may use to reserve a question of law for the High Court to determination. That is section 43 of the Magistrate’s courts [cap. 20].

18.	It is the view of this court that the learned Magistrate may refer the issue on whether Magistrate court has jurisdiction to order a permanent stay to the High Court for determination under section 43 of cap. 20.

19.	There is no evidence that the complainant Hypolite Tarimae was licensed to conduct gold dealings. It seemed that the complainant and Appellants were all engaged in unlawful acts when they engaged in gold transaction. It would be unfair to use the evidence of the complainant against the Appellants in either criminal proceeding or civil proceedings. They were both in breach of the law.

20.	The proceedings in this case should not therefore continue. Order accordingly.

BY THE COURT

……………………………………….
Hon. Justice Francis Mwanesalua 
Deputy Chief Justice