Regina v Shanel [2016] SBHC 41; HCSI-CRC 29 of 2016 (31 March 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

Regina

v.

Peter Shanel

Date of Hearing: 29th March 2016
Date of Judgment: 31 March 2016

Mr. Waleila for the Applicant
Mr. Dalipanada for the Respondent

RULING ON APPLICATION FOR STAY

Kouhota, PJ:

Background

The applicant, Honourable Peter Shanel MP, was charged with the offence of Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code. The charge against him was laid by a Police Officer Sergeant J. Leguhavi on 18^th March, 2015. The charge was served on the applicant using the standard Form P.F.1 (111) which bears the heading “Notice of Offence Charged”.

His first appearance at the Honiara Magistrates Court was on the 13^th April 2015, presumably there would have been subsequent appearances.

On the 19^th January 2016, Counsel Mr. Waleilia on behalf of the applicant made an application to the Magistrates Court to have the charge against the applicant dismissed on the grounds that his client was irregularly or improperly prosecuted under criminal proceedings which appears to have been brought to the Magistrates Court by the procedure found in section 78 of the Criminal Procedure Code. The Learned Principal Magistrate in her ruling on 20^th January 2016 dismissed the application and order that the trial continue.

The trial therefore continued and was completed and final submissions by counsels have been made. The presiding magistrate however, with agreement of both counsels has adjourned the matter generally pending an appeal file by the applicant with the High Court against the learned magistrate ruling to dismiss his application to have the charge against him dismissed.
That appeal is yet to be heard and determined by the High Court. The accused however, took an extraordinary step and now apply to this court to have the proceedings in the Magistrate Court stayed pending the outcome of the appeal he has filed with this court.

In support of this application, counsel for the applicant submits that his client was charged using a wrong form hence his client was irregularly or improperly prosecuted under criminal proceeding which appears to have been brought to the Magistrate Court by procedure found under section 78 of the Criminal Procedure Code. The form complaint of was marked annexure ‘’A” to the Sworn Statement of Mr. Waleilia filed in support this application. I had the opportunity to view and examine the form. The form is a P.F. 1, which is the form the police normally used to lay formal charges against persons suspected of committing a criminal offence. The PF1(111) is combination of two forms, Form 6 and Form 2, both of which are prescribed forms under the Magistrate’s Court (Form Rules) Legal Notice Number 21/1992, dated 4th February, 1992.

The form PF 1 has two parts, the first part contains Form 6, the charge pursuant to section 76 of the Criminal Procedure Code and the second part of the form contains Form 2, a recognisance with/without sureties pursuant to section 107 of the Criminal Procedure Code

The court has decided to hear the application after hearing submission by counsels on preliminary issues, one of which is that the general adjournment made by the Magistrate’s court contravenes section 191 of the Criminal Procedure Court. Counsel for the applicant, however, at the hearing of this application choose not to pursue the issue and made no further submission on the purported contravention. That issue therefore has to await another day.

In support of the application, counsel for applicant file a sworn statement outlying the reasons in support this application. The sworn statement contained the same or similar grounds submitted in support of the application in the Magistrates Court. It appears that the same grounds were also submitted as grounds of appeal and in support of this application. The Court is yet to hear argument on the merit of these grounds. It is expected this will be done when the pending appeal is heard.

The Court, however, has heard submissions on the issue of the charge being brought under a wrong form. It was also submitted as one of the grounds in support of this application hence the court is obliged to consider the issue and make rulings on it.

At this stage, based on the submissions and documents tendered as evidence before the Court, my view is that the complaint was laid by a police officer under section 76 of the Criminal Procedure Code and the applicant was compelled to appear in the Magistrates Court under section 107 of the Criminal Procedure Code hence for the complainant to alleged that he was compelled under section 76 Criminal Procedure Code( CPC) is a misconception as section 76 of the Criminal Procedure Code deals mainly with instituting criminal proceedings in the Magistrates Court rather than compelling the accused to appear in court.

Section 107 of the Criminal Procedure Code states “before any person is released on bail, the court or a police officer, as the case may be, shall take the recognisance of such person and his surety or sureties, where such is or are required, condition for the appearance at the time and place mentioned in the recognisance and such persona shall continue to attend until otherwise directed by the court or police officer as the case may be”.

In this case the documents before the court show the applicant was compelled to appear at the Honiara Magistrate court at 09.00 hrs on 13^th April 2015 on a recognisance of $500 he signed as principal under section 107 of the Criminal Procedure Code. All other subsequent appearances by the applicant at the Magistrates Court I assumed would have been made in compliance with orders of the magistrate court under section 191 of the Criminal Procedure Code rather than in compliance with the original bail granted by the police under section 107 of the Criminal Procedure Code or under any irregularities or misleading provisions as alleged by the applicant.

It is clear the applicant entered into a recognisance of $500 under the provisions of section 107 of the CPC to appear at the Honiara Magistrate Courts at 09.00 hrs on 13^th April, 2015. I see nothing irregular, misleading or unfair in this.

Grounds in support of Stay application

The applicant is seeking orders to stay the Magistrate Court proceeding in Criminal case no. 334 of 2015 whilst the parties in the said appeal await a ruling on the appeal against the decision of the Principal Magistrate. Five grounds were submitted as grounds for the application;

1. That the learned Principal Magistrate erred in law when she allowed the Court proceeding in Criminal case 334 of 2015 to progress pursuant to section 76 of the Criminal Procedure Code notwithstanding the apparent failure by the court to issue a summons or warrant pursuant to section 77(1) of the Criminal Procedure Code;
   
2. That the learned principal Magistrate erred in law when she ruled that section 77(3) authorises a police officer to compel the attendance of the accused person by filling a complainant in the Magistrates Court;
   
3. The learned Principal Magistrate erred in law by refusing to make a ruling on the argument that section 78 of the Criminal Procedure Code applies to the situation in a Magistrates Court proceeding where a police officer had summoned the attendance of the applicant in the Magistrate Court;
   
4. That the learned Principal Magistrate erred in law when she ruled that section 77 of the Criminal Procedure Code gives a Magistrate the discretion not to issue summons or warrant to compel the attendance of an accused in a criminal proceeding in the Magistrate Court;
   
5. That the learned Principal Magistrate erred in law and fact when she refused to grant the applicant’s application to dismiss the criminal proceeding for abuse of court process and irregular proceedings.
   

Orders Sought.

The applicant sought two orders;

1. That a stay order be granted against the learned principal Magistrates ruling on of 20^th January on the continuation of the trial’ and
   
2. That a stay order be granted pursuant to this application remain in place until the appeal petition is heard and decided.
   

Law on Stay of Criminal proceedings.

Both counsel has referred the court to a number of authorities on the issue of stay of Criminal Proceedings I had considered this authorities and will refer to some of them in this ruling.

In Filia v Regina, it was stated that the courts has inherent jurisdiction to prevent abuse of process. This application is for a temporary stay however, my view is that the principle to be considered and applied in whether to grant a stay whether temporary or permanent is the same.

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.”

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 fairness incapable of been overcome that it would be an abuse of process. In Littler [[2000] NSW CCA 173 120A – Criminal R 512 at p. 513, Hodgson JA expressed the opinion that the applicant for such an” extra ordinary remedy” bears a heavy onus.
In my view this means that applicant has to show that the continuation of the proceeding in the Magistrates Court would be so unfairly oppressive that it wold constitute an abuse of process or to show actual prejudice if the trial ensured.

In the present case, in deciding whether to grant the orders sought, the question is whether the criminal proceedings in the Magistrates Court which is the subject of this application was an abuse of process or that the applicant was able to show or prove on the balance of probability that he would actually be prejudice if the proceedings continues.

I had consider the grounds for this application and the sworn statement in support of the application and found no evidence of abuse of process, or that the applicant would actually be prejudice if this application is not granted.

As regard to first orders sought, this is a matter which is already a subject of appeal pending before this court. My view is, an appeal is the proper course of action rather than this application. The order sought is impractical, a ruling has been made and the trial procced to completion, there is nothing left to stay.

With regard to the second order sought the court was informed by both counsels that the trial was completed and final submission made and that the learned principal magistrate has with consent of both counsels adjourn the matter generally pending the determination of the applicant’s appeal against her ruling on an application to have the charge against him dismissed for irregular proceeding or abuse of process.

In view of this there is no more trial or proceedings before the Magistrates Court in which the issue of unfairness would arise or in which the applicant would actually be prejudice, it follows therefore that there is also no proceedings to stay.

That general adjournment made by the learned principal magistrate with agreement of both counsel resolves the issues and orders sought by this application and as I had said in my preliminary ruling no magistrate would be silly if I may use that word for want of a better word, to continue to hear a matter when he or she is aware that an appeal on the same matter is pending before the High Court.

For these reasons, the application is dismissed and orders sought are refused.

Parties to bear their own cost.

The Court

..................................
Emmanuel Kouhota
Puisne Judge.