Regina v Nivah [2017] SBHC 101; HCSI-CRC 261 of 2015 (7 November 2017)

IN THE HIGH COURT OF SOLOMON ISLNADS

Criminal case Number 261 of 2015

ALONI NIVAH

‘V’

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)
Criminal Case Number 261 of 2015

Hearing: 16^th May 2017

Judgement: 7^th November 2017

For the Appellant: Mr. Wilson Rano.

For the Crown/Respondent: Mr. Bradley Dalipanda.

Palmer CJ.

1. The appeal by the petitioner, Aloni Niva alleges that the learned Magistrate erred in law by refusing the petitioners plea for a stay of proceedings, or dismissal by his decision given at the Central Magistrates’ Court on 12 May 2015. The grounds for such stay were abuse of process by the police in that the complainant, Constable Michael Kemidaka was using such process to achieve a collateral purpose. The Magistrate dismissed the application, it is claimed without hearing the particulars to be argued by the accused in support of the grounds of abuse of process. It would seem the collateral purpose criticised by the accused was concerned with civil proceedings involving the accused who it may be presumed, would be in some way be prejudiced by the institution of such criminal charges as they may affect the civil outcome.
   
2. The complainant, a duly authorised police officer, had laid some 13 charges ranging from forgery, uttering false document, fabricating evidence, use of fabricated evidence, false pretence and making false statement on oath. It may be presumed that these charges underlie the supposed claim of abuse of process.

3. The Magistrate refused to entertain the stay on the apparent basis that it was premature, an abuse of process in itself for the prosecution had had no opportunity to disclose the material on which they would rely and in any event, the Magistrate held he had no jurisdiction to stay proceedings except in the limited circumstances provided for in s. 35 of the Magistrates’ Court Act. That section has no application here. His refusal to entertain a stay is the basis for this appeal.
   
4. The petitioner says the application for stay should proceed to be heard by the Magistrate. The Crown has argued that even if the Magistrate has jurisdiction to order a permanent stay, [which is disputed] the Crown submits “the courts are firm that their purpose is not to punish the prosecution nor discipline the Crown...”^[1] and further, in the light of the “merit” of the intended stay application, the High Court should exercise its supervisory role, not to grant permanent stay in this case for particular reasons. Consequently Mr. Bradley Dalipanda submits, the application must fail for the Magistrate does not have “defined” powers under statute to permanently stay criminal proceedings. In any event, this court should dismiss the appeal and remit the proceedings to the Magistrate to hear the charges and suggests this court should make further order as it sees fit.
   
5. The preliminary issue then is whether a Magistrate has jurisdiction to entertain an application for such a stay before the accused is called upon to plead to the charges.
   
6. In his argument, Mr. Wilson Rano did not directly address the preliminary issue, rather he presumed inherent power in the Magistrate to govern its own procedures so as to prevent its processes from being abused.^[2] {Edebone v Allen}
   
7. It is immediately apparent the authorities are concerned with the effect of statutory enactments covering magisterial powers in Victoria and it would be little benefit to seek to elicit the similarities and differences of that legislation with Solomon Islands legislation on the topic. What can be gleaned however, is that Victorian Court had been found to have power to deal with its own procedures to avoid process abuse, a power succinctly addressed by the Crown for it is in that foreign courts legislative enactment.
   
8. Mr. Rano also relied on the House of Lords decision in R v Horseferry Road Magistrates Court ex parte Bennett^[3] to show two principles where a Magistrate may exercise power to stay proceedings without evidence on trial. The Crown, however, argued the House of Lords ruled:- “ that the jurisdiction exercised by Magistrates to protect the court’s process from abuse is confined strictly to matters directly affecting the fairness of the particular accused with whom they were dealing [such as delay or unfair manipulation of court procedures] . It does not extend to a wider supervisory jurisdiction to uphold the rule of law. The rationale is that, supervision of the use of executive power is a responsibility that is vested in the High Court. Where such an issue arises, the magistrates should adjourn the matter so that an application can be made to the High Court which is the proper forum for deciding such matters (per Lord Griffiths at 64).”
   
9. This speech is helpful in this case, for the executive powers to prosecute rests with the Director of Public Prosecutions and is beyond any administrative powers to be implied in the magistrate to manage his own court process, for the Chief Justice has supervisory jurisdiction over the Magistrates’ Court to ensure that “wider supervisory jurisdiction to uphold the rule of law”.
   
10. Mr. Dalipanda did address Mr. Rano’s reliance on Edebone v Allen, pointing out the power implied by that court ruling arose directly from s. 86 of the Magistrates Court Act 1989 and not from any common law power to be found in the Magistrate.
    
11. Our Magistrate Courts are creatures of statute. By s 27 of the Magistrates’ Courts Act (cap 20), the court is imbued with jurisdiction to try summarily, certain criminal offences where particular punishments apply. By s. 30, the magistrate is given general powers concerned, as touched on in the reasons of Lord Griffiths, above, but such general powers may not be read to include power or jurisdiction to entertain argument going beyond “...such judicial and administrative powers in relation to the administration of justice as shall from time to time be prescribed by this or any other Act, or by Rules of Court, or subject thereto, by any special order of the Chief Justice.” [s. 30]. It is difficult to see how a convoluted argument over a stay application before pleading, concerned with the use of criminal proceedings “to achieve a collateral purpose” may fall to be considered within the general powers of section 30. In such a case as this the jurisdiction of Judges of this Court by s. 34 is concurrent with that of Magistrates.
    
12. By Constitutional authority, the High Court “shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law”^[4] so that when coupled with the petitioners “assertion by its very nature [which] usurps the {Constitutional} power of the Director of Public Prosecutions” ^[5] the Director of Public Prosecutions interests are concerned by such assertion, for a Constitutional question arises and this High Court has exclusive authority to entertain the matter. By Constitution, Section 91, the Director of Public Prosecutions is given authority to institute and undertake criminal proceedings against any person and by subsection (7):- “In the exercise of the powers conferred on him by this section the Director shall not be subject to the direction or control of any other person or authority.” Where the collateral purpose alleged goes to the effect these criminal charges would have on civil proceedings, a stay would be tantamount to refusing power in the Director to prosecute while civil proceedings are pending.
    
13. In such circumstances where as the Crown argues, the Director of Public Prosecution’s power derived from the Constitution may be seen to have been impugned by criticism by proceeding with these charges at this time, it is appropriate that the High Court take further carriage of the hearing of all charges and any application to stay on the grounds pleaded amounting “to abuse of process”.
    
14. Whilst the Crown may argue the proceedings should be remitted to the Magistrate for hearing in the normal course after the petition is refused, the order of this court shall be to have the proceedings brought before this court for hearing of all charges when the argument as to whether an abuse of process arises in the circumstances may be heard.
    

Orders of the Court:

(i) Allow petition and quash orders of the Magistrates’ Court dated 12 May 2015 dismissing the application of the Petitioner to order a stay or dismissal.

(ii) Direct that the petition for permanent stay or dismissal be heard by this Court.

(iii) Direct that the parties draw up consent orders for continuation of this matter herewith.

(iv) Adjourn matter for mention for Friday 10^th November at 10:30 am.

Sir Albert R. Palmer CBE.

The Court.

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^[1] Jago v District Court of New South Wales (1988) 12 NSWLR 558, 564-5, per Kirby P.
^[2] Edebone v Allen (1991) Vic Rp 100; (1991) 2 VR 659 [11 February 1991]
^[3] (1994) 1 AC 42
^[4] Constitution, s. 77.-(1)
^[5] Crown submissions, at 9