Kimata v Regina [2017] SBHC 120; HCSI-CRC 362 of 2016 (7 August 2017)

ALPHA KIMATA AND ISAIAH IVISI AND BERESFORD KALE

-V-

REGINA

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 362 of 2016

Hearing: 28^th April 2017
Judgement: 7^th August 2017

Christopher Hapa for the Appellant
Mr. Andrew Ega Kelesi for the Crown

Palmer CJ.

1. This is an appeal against the orders of the Magistrates’ Court refusing the application of the Appellants to strike out charges or, permanently stay criminal proceedings against them.
   
2. The Appellants, were charged with the following election offences under the Parliamentary Electoral Provisions Act [cap. 87] (hereinafter referred to as “the Act”):
   
   • (a) Alpha Kimata:
     
     • (i) 4 counts of bribery contrary to section 71(1)(a) of the Parliamentary Electoral Provisions Act [cap. 76];
     • (ii) 1 count of treating contrary to section 72(1)(a) of the Act;
       
   • (b) Isaiah Ivisi (son of Alpha Kimata):
     
     • (i) 1 count of bribery contrary to section 71(1)(a) of the Act;
     • (ii) 1 count of treating contrary to section 72(1)(a) of the Act; and
       
   • (c) Beresford Kale:
     
     • (i) 4 counts of bribery contrary to section 71(1)(a) of the Act.
       
3. The application in the Court below was essentially to stay proceedings primarily on the grounds that the Court lacked jurisdiction to deal with the matter, secondly that election offences are to be dealt with as an election petition, and thirdly, that by allowing the criminal proceedings to continue raises the risk of double jeopardy.
   
4. The appellants argue that the learned Magistrate erred in law when he ruled against them on those points of law.
   
1. Issue of lack of jurisdiction.
   
5. The primary argument on this point is founded on the premise that the offences of bribery and treating, being election offences, which arise in the course of an election, their primary purpose being to define what is permissible within the law during elections, any allegations of any breach does not require the higher criminal standard of proof beyond reasonable doubt, rather the lower standard but above the civil standard of proof on the balance of probabilities; their effect if established can nullify the election of a sitting member or winning candidate. It follows those offences better known as “election offences” set out in Part IV of the National Parliament (Electoral Provisions) Act [cap. 87], (“the Act”) will only arise during election periods.
   
6. The appellants submit on the premise that:
   
   • (i) All questions which may arise from any election ought to be determined by the High Court on a Petition being filed;
   • (ii) The offences arise in the context of a civil suit before the High Court when dealing with Election Petitions; and
   • (iii) In election offences the standard of proof is not the criminal standard of proof, rather a half-way house between the criminal and civil standard of proof.
     
7. Accordingly, they submit the Court below lacks jurisdiction to deal with those offences.
   
8. I will deal with this first appeal point and address the three grounds raised together for they all relate to the same issue.
   
9. I couldn’t agree more with learned Counsel, Mr. Hapa on this point, in that apart from seeking to challenge the validity of an election of a winning candidate on the basis of any corrupt or illegal practice having been committed^[1], there would not have been any cause or reason to have allegations raised in terms of election offences. The creation of election offences arises primarily to delineate where the boundaries and limits occur in terms of what is a corrupt or illegal practice arising during election period and helps to ensure that elections are conducted in a corrupt free environment. The court has regard to s.66-(1) of the National Parliament (Electoral Provisions) Act (Cap 87) which provides;-
   

“No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected or his agent.”

10. Section 70 provides the penalty provision and particularises the offences which make up “a corrupt practice” used in the sense of the phrase in s. 66(1) before the Act goes on to deal with persons to be deemed guilty of bribery, treating and undue influence. By section 82, questions arising from an election as to the right of any person to remain an elected member shall be determined by the High Court whose decision on the question is final and “shall not be questioned in any other proceedings”, a provision which precludes appeal and in most circumstances, judicial review. For this provision in the legislation is an “ouster” clause.^[2] The point made by Mr. Hapa for the elected member is that offences created by the Act, particularly those with which the court is asked to deal with here, are offences peculiar to the Act and are wholly questions to be determined by the High Court falling as they do within the construct of s. 66. I am satisfied the jurisdictional objection has been made out. Offences relating to elections are encapsulated by the Act while offences relating to public offices or officers fall to be dealt with under the Penal Code.^[3]

11. Secondly, for the reason that the standard of proof in elections offences is lower than the criminal standard, it follows allegations of any corrupt or illegal practice, in this instance bribery and treating, ought to have been dealt with by way of a petition filed in court than a separate criminal charge under these provisions. This should be distinguished from a separate charge brought under the Penal Code in relation to offences of corruption and abuse of office as set out in Part X of the Penal Code, which are preserved under section 81 of the Act.
    
12. Where the court finds an act of corruption or illegal practice having been established, it follows not only is it obliged to declare the election invalid but to proceed on to consider any appropriate sentence in the circumstances of each case.
    
13. Common sense requires, apart from the way the law has been enacted, to confine allegations of corrupt or illegal practices (election offences) within the context of a petition filed by an interested person^[4].
    
14. The simple answer therefore in terms of whether the lower court had jurisdiction will have to be answered in the negative. It lacks jurisdiction to deal with this type of offence.^[5] The High Court is imbued with jurisdiction to the exclusion of any other court or proceeding.
    
2. Filed Petition of Raphael Vina
   
15. This ground is raised to provide further justification to the arguments raised in ground 1 and to reiterate that having filed a petition pursuant to section 83(1) of the Act, being the only proper process permitted whereby election offences may be raised and agitated in court, the Crown is barred from proceeding separately with separate criminal charges under the same provisions.
    
16. This court taking cognisance of the contents of the petition filed 4^th November 2013, and the similarity in the grounds raised to the criminal charges sought to be pursued by the Crown against the appellants, determines it would not have been proper, fair and just and an abuse of the process to allow the criminal charges to be continued.
    
3. Double Jeopardy.
   
17. The defence of double jeopardy arises in the context of the same matter being duplicated or re-raised in another proceeding resulting in the appellant being prejudiced as a result of being tried twice with the risk of being punished twice.
    
18. In Pearce v. The Queen^[6], McHugh, Hayne, and Callinan JJ said (at 614; 686; 374):
    

“The phrase “double jeopardy” is not always used with a singly meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter”. Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.”

In Island Maritime Ltd v. Filipowski^[7], Gummow and Hayne JJ said (at 343; 12 [41]):

“ ‘Double jeopardy’ is an expression that is not always used with a single meaning. It is an expression used in relation to several different stages of process of criminal justice: prosecution, conviction and punishment. It describes values which underpin a number of aspects of the criminal law, rather than a rule that can be stated as the premise for deductive reasoning ... It is these values that underpin the rule that evidence is inadmissible where, if accepted, it would overturn or tend to overturn an acquittal. It is these values that inform the rules governing successive prosecutions – rules which find their origins in the pleas in bar of autrefois convict and autrefois acquit but now have wider application than those pleas in bar.”

19. In the case of R. v. Carroll^[8], Mr. Carroll had been convicted in the Supreme Court but acquitted on appeal by the Qld Court of Criminal Appeal. He was then charged 14 years later with perjury on basically the same information and material. The matter went on appeal right to the High Court. The appeal was dismissed on the grounds that the decision of the court was incontrovertibly correct and that it was improper to allow the later charge to be raised for it detracted from the decision that had been finalised and concluded and would not permit same issues to be re-agitated under the pretext of another charge.
    
20. No person should be tried twice except by due process of law and risk being punished twice. In the event where a matter has been amply dealt with by the court, the court is barred from re-opening or re-trying the same matter under the pretext of a separate criminal proceedings when in reality the matter is exactly identical to the other matter. The defence of double jeopardy would apply in such situation to prevent the appellant from being punished twice and unfairly prejudiced in his rights to defend himself.
    
21. I note that the civil proceedings were struck out by the Registrar of High Court pursuant to Rule 9.72 (d) of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Rules) on 21^st January 2015. On or about 23^rd May 2016, some one year and four months (1 year 4 months) later, the appellant were formally charged under same provisions on separate criminal charges. Such charges may only be pleaded by way of election petition which has been struck out. To presume to file charges of this nature in the Magistrates’ Court misapprehends the law. I have treated the question of “double jeopardy” with care for while it cannot arise on these facts going as it does to an election issue, the earlier petition, struck out in accordance with powers accorded the Registrar, while no determination on the merits of the petition, effectively precludes fresh proceedings and thus affords the respondent and those others sought to be charged with “corrupt practice” under the Act, the claim to “double jeopardy” for they cannot now face another petition, proceedings having effectively been stayed against them by way of the strike out.^[9] It is only proper and just in the circumstances to direct that the matter be stayed permanently as well under this ground for failing to diligently prosecute its case.
    

Orders of the Court:

1. Allow application for permanent stay of the proceedings herewith.
2. Direct that the criminal proceedings in this matter be permanently stayed herewith.
   

The Court.

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^[1] See section 66(1) of the National Parliament (Electoral Provisions) Act [cap. 87].
^[2] Veno v Jino (2006) SBCA 22; CA-CAC 002 of 2004 (12 April 2006) at 7 of judgment
^[3] Section 81 of the Act
^[4] See section 83(1)
^[5] Section 82
^[6] [1998] HCA 57; (1998) 194 CLR 610; 156 ALR 684; 103 A Crim R 372 McHugh, Hayne and Callinan JJ (at 614, 686, 374).
^[7] (2006) 226 CLR 328; 228 ALR 1
^[8] (2002) 213 CLR 635; 194 ALR 1; 136 A Crim R 167
^[9] Presentation of Petition within one month; s. 83 of the Act