Sumsum v Regina [2017] SBHC 100; HCSI-CRC 246 of 2015 (10 August 2017)

IN THE HIGH COURT OF THE SOLOMON ISLAND

Criminal Case Number 246 of 2015

SUMSUM

V

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)
Criminal Case Number 246 of 2015

Hearing: 19^th February 2016
Judgment: 10^th August 2017

Ms. L. Ramo for the Appellant.
B. Dalipanda for the Respondent.

Palmer CJ:

This application is for a permanent stay of the prosecution of one Dephney Sumsum relying on the ground of “improper purpose”. The “improper purpose” may be gleaned from the affidavit of the applicant, Dephney Sumsum whose statement of the 29 October 2015 recounts that the original complainant, Betty Tamou is the wife of Jimmy Niute’e, a man with whom the deponent, Dephney Sumsum had had an extra-marital affair. She goes on to say that Bartphil Tamou whose name appears on the amended charge sheet is the brother of Betty Tamou.

The inference which the applicant seeks this court to draw is that Betty Tamou and Bartphil Tamou have conspired together to complain to the police over the alleged malicious damage caused by Dephney Sumsum to a motor vehicle. For the applicant, Dephney Sumsum was by notice of offence charged on the 29 April 2015 with malicious damage to a Mitsubishi car belonging to Betty Tamou yet on the 6 July 2015 she was, by amended notice, charged with malicious damage to a motor vehicle no. AB8778 the property of Bartphill Tamou. The implied reason behind the conspiracy may be seen to be the wish by these two complainants to the police, Betty Tamou and Bartphil Tamou to “get back at” or seek retribution for the act of the applicant in having had an illicit relationship with one Jimmy Niute’e, the husband of Betty Tamou.

It must be remembered the assertion of the illicit relationship, while contained in the sworn statement which was intended for these court proceedings cannot in the circumstances be presumed to go to the truth or otherwise of the facts of any relationship and the assertion is not a matter in issue in the Magistrates’ Court proceedings. It is solely pleaded by the applicant as showing grounds for her application for a permanent stay of proceedings, grounds, or reasons why this court should be satisfied no fair trial may be had in the Magistrates’ Court when all the circumstances are considered. Were the Magistrate proceedings to be allowed to continue the use of the Magistrates’ Court may be seen to amount to an abuse of process. They are criminal proceedings, unfairly used by these individuals, Betty Tamou and Bartphil Tamou by way of complaint for their own purpose, to penalize Dephney Sumsum.

In support of the application for stay, photographs of the vehicle show two numberplates at different dates, it is alleged for the earlier photo has a plate, B4444 [not in the particulars of the original charge], while the later photo shows AB8778, [a particular in the 2^nd charge with the change of owner’s name].

While the 2^nd charge has not proceeded to trial and no evidence has been adduced in support of the 2^nd charge, it must be accepted that both complainants have reason to name Dephney Sumsum as the perpetrator of the acts of damage. Notice of an eyewitness’ statement has been given to the accused. The statement is that of a 12 year old student, a statement had been recorded in English by a police officer. The statement includes the following:-

“I well remember being on.. this date 28 April 2015 a woman who was later known as Dephney Sumsum ..... [who] went straight to my aunty’s grey Mitsubishi reg. no. AB8778, grabbed a piece of timber nearby and...”

Were the Magistrate to accept the supposed earlier photo showing the car with plate B4444 the Magistrate may be left with a doubt about the boys recollection, especially when the boy has recounted the assertion that the woman “was later known as Dephney Sumsum”, an admission perhaps that he did not know the identity of the woman, rather it was something he had been told. This material of course is for the Magistrate to consider on trial but the boy says the car was his aunty’s, presumably Betty Tamou. Yet the 2^nd charge asserts the vehicle is that of Bartphil Tamou. If the boy’s evidence was the basis of the Crown’s case, on its face it can be seen to be somewhat unreliable as to identity of the owner of the vehicle, the person seen to damage the vehicle and the actual plate on the car at the time of the incident. Because of the family relationship, were the Magistrate obliged to listen to the accused’s defence of retribution being the underlying cause for the complaint, and in the absence of clear, independent evidence of this woman’s involvement in damaging the vehicle, the factors to be proven on trial going to the elements of the offence may well become secondary to a family argument about fidelity.

There is an alternate process available to the owner or owners of this vehicle. They may bring civil proceedings for the tort of malicious damage and recover damages if the case is proven. The vehicle may have been unregistered at the time of the incident, lying beside the road and of little intrinsic value. Whether the fresh numberplate reflects the fact of re-registration is not known. The fact remains however, the applicant has shown reason to doubt the assertion of ownership in the 1^st charge, supported as the doubt is, by the 2^nd charge’s particulars asserting different ownership and plate.

The assertion of the applicant, Dephney Sumsum presumes the two complainants to the police acted in concert by damaging the vehicle themselves, and laid complaint with the police as retribution for the injury to the feelings of Betty Tamou, although the assertion is also supportive of an implication that Dephney Sumsum damaged the vehicle as retribution for some act or other by Jimmy Niute’e. The alternative implication has not been raised in argument but common sense suggests the possibility on the alleged facts.

Both counsel have made written submissions, addressing the established law on the fairness aspect necessarily going to this court’s finding on the issue of abuse of process. A number of authorities, many of which are referred to by the Director of Public Prosecutions (“the DPP”) are also used in support by Ms. Ramo for the applicant.

The Solomon Islands Court of Appeal in Robu v Regina^[1] dealt with the issue in relation to undue delay which falls to be considered, also as abuse of process and as to whether the accused may be tried fairly. If not he should not be tried at all. At page 15, in the Appeal Court’s reasons, the Court refers to and appears to adopt the reasoning in Attorney General Reference No. 2 of 2001 [2003] UKHL 68:-

“13. It is accepted as axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that if he cannot be tried fairly for that offence he should not be tried for it at all. R v Horseferry Road Magistrates Court, Ex Parte Bennett {1994} 1 AC 42.68. In such a case the court must stay the proceedings. But this will not be the appropriate course if the apprehended unfairness can be cured by the exercise of the trial judge’s discretion within the trial process. Attorney Generals Reference [no. 1 of 1990]{ 1992} 1 QB 630.”

Of course I am not sitting as the trial court but on the material to which I have alluded, I am not satisfied the apprehended unfairness can be cured by the exercise of a Magistrate’s discretion within the trial process, for he is required to address the amended charge and the evidence on which he may come to rely need not necessarily address the earlier unanswered questions as to why the vehicle plates have changed and the alleged owner of the vehicle had also changed between the time of the incident and the later photograph. This court with its inherent jurisdiction to oversee the process of the Magistrates’ Court, is satisfied process in this case by such changes to the charge sheets illustrate flaws so fundamental as to raise a reasonable doubt in my mind that the accused person will not be tried fairly in this instance.^[2]

It must be remembered this court may only look at the facts that lay behind the charge for the purpose limited to the question whether a fair trial in the circumstances presented to this court may be given the accused in the Magistrates’ Court. This court is not concerned with the guilt or innocence of the accused for this court is not the trial court. The point made by the applicant has merit for when the charges are so fundamentally different, it may appear to a member of the public, justice may not be served where the police can lay such amended charge, reliant on wholly different particulars of fact, without recourse, by an accused person who must suffer the trial process. In the circumstances shown here, recourse may well be available before trial.

This High Court has the inherent power to review such police and prosecution process to avoid any suggestion of disrepute in the administration of justice, and where this court is not satisfied by the exercise of care in the trial, the lower court will or cannot, afford a fair trial on the particular charge, this court may stay any such proceedings. I am not, by speaking of the police actions in context, criticising the police, rather pointing out the care which needs to be exercised in the first instance to ensure prosecution of any offence is free of process defects. I am satisfied the apprehended unfairness in this case, if permitted would amount to abuse of process. It is necessary to go beyond simple review after the event in the Magistrates’ Court and I adopt the phraseology of Gaudron J where she spoke of [this] court’s powers:-

“to control its own process and proceedings [is] such that its exercise is not restricted to defined and closed categories but may be exercised as and when the administration of justice demands”.^[3]

This is such a case where a stay is warranted. Those aggrieved owners, or either one who lays claim to the vehicle, is not precluded from instituting civil proceedings, albeit with risk of a counterclaim for damages for malicious prosecution, so avenues of redress for recompense are not closed if they are successful in proving this applicant caused the damage and not someone else, for the vehicle appeared abandoned beside the road.

Orders of the Court:

1. Grant application for permanent stay.
   
2. Direct that the proceedings be permanently stayed herewith.
   

The Court.

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^[1] (2006) SBCA 14; CA-CRAC 24 of 2005
^[2] Connelly v DPP [1964] 2 All E.R. 401
^[3] Jago v District Court (NSW) [1989] 168 CLR at p 74