Pacha v Regina [2017] SBHC 105; HCSI-CRC 29 of 2015 (7 August 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 29 of 2015

David Day Pacha

V

REGINA

High court of Solomon Islands
Criminal Jurisdiction
(Palmer)

Criminal Case Number 29 of 2015

Hearing: 21^st October 2015
Judgment: 7^th August 2017

Mr. G. Suri for the Appellant.
F. Joel (Mrs) for the Respondent.

This is an application by the Crown for leave to appeal out of time against the learned Magistrate Seuika’s acquittal of Mr. David Day Pacha, in relation to charges of conversion contrary to s. 278(1) (c) (ii) and abuse of office contrary to s. 96 of the Penal Code while he was acting Minister for Mines, Energy and Rural Electrification.

The Crown relies on s. 285(2) of the Criminal Procedure Code (“the Act”) since the normal period of limitation in which to appeal from the magistrate’s decision given on the 7 November 2014, 14 days had long since expired when the motion for leave was only filed on the 9 February 2015. This court may enlarge the limitation period for leave when the court is satisfied circumstances justify the extension of time, circumstances going to reasons of “good cause” set out in s. 285(2). The Crown, when addressing the reasons for leave, relies on the fact that the case involved a question of law of unusual difficulty as well as the requirement of the sanction of the Director of Public Prosecutions [by virtue of s. 283 of the Act] before the appeal may be instituted.
Since no reasons were provided by the magistrate until 10 December 2014, [a month after the verdict of acquittal] I am satisfied the Director would have been prejudiced by the delay when the obligation resting on him was to be satisfied good reason arose from the written decision justifying appeal before he was able to sanction the appeal. That obligation rested on the Director and this court may not presume to review the Director’s decision to seek to appeal on behalf of the Crown beyond being satisfied the Director’s grounds of appeal address principles forming part of the underlying law applying to such appeals. For while the Crown has unnecessarily sought to rely for support on the reasoning in Levo v Regina^[1]that case relates to the appeal by a prisoner following conviction, not a Crown appeal and should be distinguished from a Crown appeal. In such a case [once apparent proper principles have been applied in the grounds of appeal relied upon] the Director of Public Prosecution discretionary right of appeal, as understood by the need for sanction [express authoritative permission] in s. 285(2) (c) of the Criminal Procedure Code, is absolute.^[1]

The Director’s grounds of appeal rely on errors of fact and law apparent the Director says, from a reading of the written reasons which followed the earlier acquittal. I am consequently satisfied proper principles are apparent which affords the Director his discretionary right of appeal.

The reason for delay is directly related to the need by the Director of Prosecutions, to be satisfied the Magistrate’s reasons afforded him basis, on principle to appeal. Only then may he, in good conscience, exercise his absolute discretionary power envisaged by the subsection (2) (c) to s. 285.

Good cause has been shown for the delay in appeal. The respondent, Mr. Pacha is a Member of Parliament. He had previously been acquitted by the Magistrates’ court of these charges, only to again have the charges dismissed by Magistrate Seuika.

Those charges are particularly serious as they affect the fundamental business of government and an appropriate direction is for the Director of Public Prosecutions to lay by ex officio indictment charges for hearing by this High Court.

Orders of the Court:

1. Allow application for enlargement of time.
   

The Court.

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^{[1][2010]SBHC 110
[1] See discussion Acting Public Prosecutor v Uname Aumane anors [1980] PNGLR 510}