Fakaia v Chief Magistrate [2021] SBHC 145; HCSI-CRC 491 of 2021 (7 October 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Fakaia v Chief Magistrate
Citation:
Date of decision:	7 October 2021
Parties:	Peter Fakaia v Chief Magistrate, Director of Public Prosecutions
Date of hearing:	7 October 2021
Court file number(s):	491 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry J
On appeal from:
Order:	1. The Application to stay the proceedings Regina v Peter Fakaia CRC No858 of 2019 in the Central Magistrates’ Court is dismissed. 2. The Applicant and the Applicant’s counsel are to pay the costs of the First Respondent on an indemnity basis pursuant to Rule 24.9 of the Solomon Islands Courts (Civil Procedure) Rules. The Applicant and the Applicant’s counsel are ordered to each pay one half of those costs. If the costs are not agreed they are to be assessed.
Representation:	No Appearance for the Applicant Mr S Banuve for the First Respondent No Appearance for the Second Respondent
Catchwords:
Words and phrases:
Legislation cited:	Criminal Procedure Code s 134, 153, Constitution s 18, Magistrate Court Act s 70, Evidence Act 2009 s 31, Solomon Islands Courts (Civil Procedure) Rules 2007 24.12 (b), 24.35, 9.75
Cases cited:	Filia v Regina [2005] SBHC 155, Connelly v DPP [1964] 2 All ER 401, Williams and others v Spautz [1992] HCA 34, The State v Waisale Rokotuiwai [1998] FJLawRp 18

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 491 of 2021

PETER FAKAIA
Applicant

V

CHIEF MAGISTRATE
First Respondent

DIRECTOR OF PUBIC PROSECUTION
Second respondent

Date of Hearing: 7 October 2021
Date of Decision: 7 October 2021

No Appearance for the Applicant
Mr S Banuve for the First Respondent
No Appearance for the Second Respondent

Lawry PJ

RULING

Introduction

1. The Applicant faced trial in the Magistrates’ Court commencing on 5 August 2021.
2. His counsel was Mr B Etomea. Mr Etomea did not attend Court on that day but sent another legal practitioner, Nasi Kwaimani from his law firm. Mr Kwaimani applied to adjourn the trial as Mr Etomea was in Malaita having travelled to see an ill relative. The presiding Magistrate did not grant the application but stood the case down for Mr Kwaimani to take instructions from Mr Etomea. Mr Kwaimani reported that he had been unable to contact Mr Etomea as the message received was that the phone was turned off.
3. Understandably the Magistrate required the trial to proceed in the absence of Mr Etomea, the Applicant being represented by a legal practitioner, Mr Kwaimani. The evidence in chief of the first witness, Willie Maela was led by a prosecutor from the Office of the Director of Public Prosecutions. At the end of the evidence in chief the Magistrate adjourned the trial awaiting the return of Mr Etomea. The Applicant complains that the witness was not sworn before giving evidence. The Court has been informed that the evidence given by Mr Maela on 5 August 2021 has since been put aside and arrangements made for his evidence to be taken afresh. It is understandable how a Magistrate dealing with a trial might overlook the procedure of having a witness sworn, given the break in proceedings to obtain instructions from Mr Etomea. What is not understandable is how both the prosecutor and counsel appearing could also overlook the matter and fail to call the attention of the Magistrate to the need to follow the requirements of section 134 of the Criminal Procedure Code.

The Application

4. The Applicant has applied to the High Court for a permanent stay of the proceedings in the Magistrates’ Court. There has been no indication given by the Applicant for the legal basis for making this application. If it is alleged that the Defendant’s right to a fair trial, guaranteed by section 10 of the Constitution, had been undermined to such an extent that there had been an abuse of process, then that should have been pleaded and the appropriate application brought under section 18 of the Constitution. That has not happened. In particular, there has been no basis put forward as to why the proceedings have named the First Respondent as a party to these proceedings.

Response from the First Respondent

5. The Application was called for mention in this Court on 10 September 2021. Mr Etomea appeared and was asked for the basis on which the application was being brought. It was adjourned to 1.30pm on 24 September 2021. On that date Ms Fakari appeared for the First Respondent and Ms Waletofea for the Second Respondent. The Court was advised that Mr Etomea was in Auki. The case was then adjourned to 1 October 2021 at 1.30pm. On 30 September 2021 the First Respondent filed an Application to strike out the Applicant’s application for a stay. On 1 October 2021 the Solicitor General Mr Banuve appeared for the First Respondent and Mrs Hilly for the Second Respondent. The hearing of both applications was set down for Thursday 7 October 2021. On 6 October 2021 at 1.26pm the First Respondent filed submissions in support of the application to strike out. Also on 6 October 2021 at 3.00pm the Applicant filed a notice of Withdrawal of the Application to Stay the trial proceeding in the Magistrates’ Court. Mr Etomea sent a covering letter to the Court advising he would not be appearing on 7 October 2021 as he has a matter in the Magistrates’ Court. The High court contacted all counsel advising that this Court directed that the Applications be called as scheduled on 7 October 2021 so all counsel could be heard. There was again no appearance by any counsel for the Applicant. Mr Banuve appeared for the First Respondent. There was no appearance for the Second Respondent. He applied to have the application for a stay with costs on an indemnity basis.
6. Mr Banuve submits that the Chief Magistrate should never have been joined as a party to these proceedings. He accepts that the High Court does have an inherent jurisdiction to prevent an abuse of process. He relied on Filia v Regina [2005] SBHC 155 where Justice Kabui (as he then was) applied the principles set out in the House of Lords decision in Connelly v DPP [1964] 2 All ER 401 and confirmed the High Court had an inherent jurisdiction to prevent the abuse of its process. He recorded the following passage from Lord Morris’s speech in Connelly:
   • "...There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and defeat any attempted thwarting of its process..."

In Filia (a criminal case) the application for a stay was refused.

7. Mr Banuve referred to the Australia High Court decision of Williams and others v Spautz [1992] HCA 34. Williams considered the policy reasons to be considered when dealing with an application for a stay. The High Court of Australia said at paragraph [18] “It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it.”
8. At paragraph [19] the Court said:

“There is a risk that the exercise of the jurisdiction to grant a stay may encourage some defendants to seek a stay on flimsy grounds for tactical reasons. But that risk and the other policy considerations already mentioned are not so substantial as to outweigh countervailing policy considerations and deter the courts from exercising the jurisdiction in appropriate circumstances.”

9. Mr Banuve submits that the filing of the application for a stay against the First Respondent is for flimsy (at best) and mistaken reasons, or misguided tactical reasons. He says that this is the very risk that was highlighted by the High Court of Australia in Williams.
10. Mr Banuve correctly submits that the Chief Magistrate should never have been included as a Respondent in these proceedings. If there was a basis for the proceedings he submits that the parties should have been the same as in the Magistrates’ Court that being Fakaia and Regina. The Magistrate is a third party adjudicator.
11. Further he submits that the office of Chief Magistrate is created under section 7(2) of the Magistrates’ Court (Amendment) Act 2002. She exercises the powers of a Principal Magistrate and has some additional responsibilities. All Magistrates are appointed individually by the Judicial and Legal Services Commission pursuant to section 118 of the Constitution. Presumably she was named as a party as she is a Principal Magistrate. She was not the Magistrate who was to hear the case. She did not refuse the adjournment and she did not proceed to hear any evidence. More importantly the section 70 of the Magistrates’ Court Act provides:
    • “70. No Magistrate, justice of the peace or other person acting judicially, shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction provided that he, at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person bound to execute the lawful warrants or orders of any such Magistrate, justice of the peace or other person acting judicially, shall be liable to be sued in any civil court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issuing the same.”
12. The Chief Magistrate appears to be named in these proceedings as if they were civil proceedings. Section 70 prohibits that. She cannot be named in the criminal proceedings as the proceedings are between the Defendant and the State represented by the Office of the Public Prosecutor.

Disposal of the Applications

13. As the Applicant is withdrawing his application and the Second Respondent is seeking to have the application for a stay struck out, it is not necessary to go into the applications in detail. It is however appropriate to record that the application for a stay was totally misconceived.
14. At the Magistrates’ Court counsel when a trial date has been set, counsel cannot assume that the trial can be vacated. If he has a personal matter that prevents him from attending Court, he must ensure that another counsel is in a position to conduct the trial if the application to vacate the trial is refused. The magistrate did not require counsel attending to conduct the cross examination. There was therefore no unfairness to the Applicant with the matter proceeding.

Unsworn evidence

15. Evidence before the Magistrates’ Court will usually be sworn or affirmed. Section 134 of the Criminal Procedure Code provides:
    • “134. Every witness in any criminal cause or matter shall be examined upon oath or affirmation, and the court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation:” Provided that the court may at any time, if it thinks it just and expedient (for reasons to be recorded in the proceedings), take without oath the evidence of any person declaring at the taking of any oath whatever is according to his religious relief unlawful, or who by reason of immature age or want of religious belief ought not, in the opinion of the court, to be admitted to give evidence on oath; the fact of the evidence having been so taken being also recorded in the proceedings.
16. There is also provision under section 31 of the Evidence Act 2009 for the Court to hear unsworn evidence. Section 31 provides:
    • “31.(1)Unsworn evidence is admissible for all purposes
    • (2) The probative value of the evidence is noreased only because &#se –
    • (a) the evidence sworn
    • (bi> (b) a p) a person charged with an offence may be convicted on the evidence; i>
    • (c) the person giving the evidence is liao be convicted of perf perjury to the same extent as if the person had given the evidence on oat221;
17. Should the dant nvicted then the issue of hearing unsworn evidence may be something that could pold potentitentially be raised on appeal. It is now a non-issue as the evidence has been put to one side and the Court is to hear the evidence afresh.
18. It follows that the Application to Stay the Proceedings was itself an abuse of process, particularly so far as naming the Chief Magistrate as a Respondent. As a result, the Chambers of the Attorney General has been required to attend Court, file an application and submissions. Her counsel asks that the proceedings be struck out with costs.
19. The Criminal Procedure Code makes provision in section 153 for costs to be ordered in certain circumstances. The section provides:
    • “153- (1) It shall be lawful for a Judge or a Magistrate to order any person convicted before him of an offence to pay to a public or private prosecutor, as the case may be, such reasonable costs as to such Judge or Magistrate may seem fit, in addition to any other penalty imposed:
    • Provided that such costs shall not exceed one hundred dollars in the case of the High Court or fifty, dollars in the case of a Magistrate's Court.
    • (2) It shall be lawful for a Judge or a Magistrate who acquits or discharges a person accused of an offence, if the prosecution for such offence was originally instituted on a summons or warrant issued on the application of a private prosecutor, to order such private prosecutor to pay to the accused such reasonable costs as to such Judge or Magistrate may seem fit:
    • Provided that such costs shall not exceed one hundred dollars in the case of an acquittal or discharge by the High Court or fifty dollars in the case of an acquittal or discharge by a Magistrate's Court:
    • Provided further that no such order shall be made if the Judge or Magistrate considers that the private prosecutor had reasonable grounds for making his complaint.
    • (3) In this section "private prosecutor" means any prosecutor other than a public prosecutor.”
20. The Code makes no provision for costs to be ordered for interlocutory circumstances. In any event the proceedings brought, although they did not set out any basis for bringing the proceedings must be treated as civil proceedings as there could be no basis for bring the Application against the Chief Magistrate in criminal proceedings as she was neither the prosecuting authority nor a person charged. Even if that were not so, the provisions in Solomon Islands are similar to those in Fiji. There is helpful Fijian authority in The State v Waisale Rokotuiwai [1998] FJLawRp 18. The Code in Fiji was silent on the same issue and the Court held that the common law could be relied on for the award of costs. The common law can be relied on in Solomon Islands in accordance with schedule 3 of the Constitution. In Rototuiwai the Crown had failed to notify defence counsel about the prosecution’s intention regarding filing an amended information. The Court held that such conduct was such that costs should be awarded at an interlocutory stage as counsel had engaged in work and travelled from Australia unnecessarily.
21. The Court considers that for the Applicant to have brought this Application and naming the Chief magistrate as a party is much more serious and deserving of a costs order that the situation in Rototuiwai. It follows that this Court has power to award costs for the First Respondent whether the Application for a Stay is regarded as a criminal proceeding or a civil proceeding. It is appropriate that costs are awarded in this case as regardless of the wishes of a client, counsel has an obligation to the Court and fellow counsel to refrain from bringing flimsy applications without any prospect of success.
22. The Court cannot know whether the Application was at the urging of the Applicant or not. The Court must assume that the Application was filed in accordance with instructions. So far as the events in the Magistrates’ Court are concerned counsel must never assume that an adjournment will be granted as it inconveniences not just the Court and other Court users, it inconveniences the prosecution witnesses who have taken time out of their lives in answer to the witness summons. If counsel is unable to appear at a trial and is unable to make an application to the Court the obligation is to make sure other counsel are adequately briefed to conduct the trial. What is more concerning is that counsel having filed the Application for a stay did not appear in Court or have someone instructed to appear in the High Court on 3 occasions.
23. The Court records that on the first appearance of this matter the Court told counsel that the Court would require Counsel to provide a clear basis for the application. The only further document filed was the Notice of Withdrawal filed the day before the hearing of this matter after the Second respondent had filed the Application to Strike Out the application and there was no appearance for or on behalf of the Applicant on the three occasions that counsel for the First Respondent appeared.
24. In considering costs this is clearly a case where the Applicant has brought proceedings in circumstances that amounted to a misuse of the litigation process. Rule 24.12(b) of the Solomon Islands Courts (Civil Procedure) Rules [“the Rules”] was designed to meet a circumstance such as this. In addition, as this application had no prospect of success and was totally lacking in merit and any reasonably competent legal practitioner would have advised the party not to bring the proceeding. There has been nothing put before the Court by counsel, as could have been done, to show that the Applicant gave written instructions to bring the application in the face of counsel providing written advice to not bring the proceedings. There have been four appearances in the matter and as a result ample opportunity to do so, if that was the case. In terms of Rule 24.35 the Court considers that the costs that are ordered should be met equally by the Applicant and his counsel on a 50 – 50 shared costs basis.

Conclusion

25. Whether the Application to Strike Out or the Notice of Withdrawal is followed the effect is the same. The Court finds that the application for a stay was an abuse of the process of the Court. Pursuant to Rule 9.75 the application to stay the Proceedings is dismissed and costs are awarded to be paid to the First Respondent by the Applicant and his counsel on an indemnity basis as provided in Rule 24.9 of the Rules. If the costs are not agreed, then they are to be assessed.
26. Had the Second Respondent appeared and presented submissions, the Court would have ordered the Applicant to pay the costs of the Second Defendant. In the circumstances there is no order for costs in favour of the Second Respondent.

Orders

1. The Application to stay the proceedings Regina v Peter Fakaia CRC No858 of 2019 in the Central Magistrates’ Court is dismissed.
2. The Applicant and the Applicant’s counsel are to pay the costs of the First Respondent on an indemnity basis pursuant to Rule 24.9 of the Solomon Islands Courts (Civil Procedure) Rules. The Applicant and the Applicant’s counsel are ordered to each pay one half of those costs. If the costs are not agreed they are to be assessed.

By the Court
Justice Lawry PJ