Dettke v R [2021] SBHC 171; HCSI-CRC 79 of 2021 (7 December 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Dettke v R
Citation:
Date of decision:	7 December 2021
Parties:	Bodo Horst Heinz Dettke v Regina
Date of hearing:	1 November 2021
Court file number(s):	79 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:	Magistrate Courts
Order:	1. Appeal allowed in part 2. The complaint is not frivolous and vexatious 3. Consequently the appellant is not entitled to compensation 4. The appellant is entitled to his costs both in the lower court and this court. 5. Right of appeal
Representation:	Mr. Gabriel Suri for the Appellant Mrs. Elma Rizu Hilly for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Road Transport Act S 40 (1) Criminal Procedure Code S 190 (2) (b) (i), S 155, S 76, 76 (4)
Cases cited:	McClusky v Attorney General 189 /94, Ridgeway v The Queen, R v Alfred Kejoa Pohe CRC 309 of 2008,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 79 of 2021

BODO HORST HEINZ DETTKE

V

REGINA

Date of Hearing: 1 November 2021
Date of Decision: 7 December 2021

Mr. Gabriel Suri for the Appellant
Mrs. Elma Rizu Hilly for the Respondent

RULING ON APPEAL

Bird PJ:

1. In the court at first instance, the appellant was charged with the offence of careless and inconsiderate driving contrary to section 40 (1) of the Road Transport Act. On the 8^th February 2021, the Crown withdrew the charge against the appellant and he was thereby acquitted pursuant to section 190 (2) (b) (i) of the Criminal Procedure Code. Consequently, an application pursuant to section 155 of the Criminal Procedure Code was then made by the appellant for reasonable compensation and cost. On the 9^th February 2021, the learned Magistrate rejected that application and it is against that ruling, that this current appeal is premised.
2. Section 155 of the CPC states:
   • “If on the dismissal of any case any court shall be of opinion that the charge was frivolous or vexatious, such court may order the complainant to pay to the accused person a reasonable sum as compensation for the trouble and expense to which such person may have been put by reason of such charge in addition to the costs”.
3. The wording of s.155 of the CPC is very clear. The requirements that must be considered are the following:
   • (a) On the dismissal of any case,
   • (b) Any court shall be of the opinion,
   • (c) The charge was frivolous and vexatious
   • (d) That court may order the complainant to pay reasonable sum as compensation,
   • (e) For the trouble and expense
   • (f) In addition to costs.
4. It is therefore important to note that there must be a connection between the court’s opinion that the case was frivolous and vexatious before compensation will flow. Any court under which an application pursuant to s.155 of the CPC is made should and must consider and rule whether or not a dismissed case is frivolous or vexatious. It is only then, can any reasonable compensation be ordered against a complainant. The prerequisite then should be a finding by the court if the dismissed case is in fact frivolous or vexatious.
5. After having said the above, I will now turn my mind on the appeal grounds raised by the appellant. There are five grounds of appeal raised and they are as follows:
   • (g) The learned Magistrate erred in law by failing to adjudge that the charge preferred against the defendant under section 40 (1) of the Road Transport Act was frivolous and vexatious for the purpose of determining reasonable compensation and costs under section 155 of CPC.
   • (h) The learned Magistrate erred in law by not considering properly the appellant’s argument on abuse of process for purposes of making a determination on frivolous and vexatious charge pursuant to section 155 of CPC but was distracted by her own deviation into application of the principal of abuse of process in stay proceeding and so the learned Magistrate’s reasoning was a non sequitur.
   • (i) The learned Magistrate erred in law by not applying correctly the principle enunciated in McClusky v Attorney General, HCSI-CC187/94 for purposes of determining the gist of the appellant’s argument that the Magistrate had a high judicial duty to assess, pursuant to section 76 of CPC, the reasonable and probable cause from which the complainant to believe that the appellant had committed an offence which warranted signing and issuance of a charge by the Magistrate.
   • (j) The learned Magistrate fail to exercise her judicial duty by declining jurisdiction to determine and assess reasonable compensation sought pursuant to section 155 of CPC.
   • (k) The learned Magistrate erred in law by failing to award costs to the appellant.
6. The first ground of appeal by the appellant attacks the purpose of s.155 of the CPC. The crux of the argument by the appellant on ground 1 is a complaint about the legal obligation of the court to determine whether or not the charge laid against the appellant was frivolous and vexatious. I have taken time to peruse the ruling of the learned Magistrate in the lower court, but fail to see any determination to that effect. This court is therefore required through this appeal to make a determination and rule on whether or not the charge against the appellant in the lower court was frivolous and vexatious. What does frivolous and vexatious mean?
7. When one looks at frivolous and vexatious, it means that the complaint is obviously untenable. That also means that the said complaint cannot possibly succeed, is manifestly groundless and is so manifestly faulty that it does not admit of argument. A frivolous complaint is also based on bad faith and is intended to harass, delay or embarrass the opposing side. It lacks any arguable basis either in law or in fact. A vexatious complaint humiliates, is offensive or abusive for the person on the receiving end. The complaint would also injure the person’s personal self-esteem and caused him/her anguish. It exceeds what a reasonable person considers appropriate within the context of his work.
8. In order for me to determine the issue, I must now set out the factual circumstances of the complaint. It was a fact that the appellant was involved in a road traffic accident on the morning of the morning of the 8^th August 2020 at about 06.00 hours. The appellant was charged with the offence of careless and inconsiderate driving under s. 40 91) of the Road Transport Act on the 3^rd December 2020. The matter was first mentioned at the Central Magistrates Court on the 8^th December 2020. The matter was called again on the 14^th December 2020 for a bail variation and it was adjourned to the 25^th January 2020 for further mention.
9. On the 16^th December 2020, the file was allocated to a prosecutor at the office of the DPP. On the 17^th December 2020, disclosures were served on the defence including a copy of the Form 6 Charge. Also on the same date, a proposal from the appellant’s lawyer was received by the prosecutor seeking a withdrawal of the charge against the appellant. Consequently, an assessment of the evidence was diligently carried out by the learned prosecutor and a legal opinion on the sufficiency of the evidence against the appellant was rendered to the Director of Public Prosecution. That legal opinion was to the effect that there was insufficient evidence to secure a conviction on the charge against the appellant and that the matter was to be withdrawn under s. 190 (2) (b) (i) of the Criminal Procedure Code. That legal opinion was endorsed by the Director and that had led to the matter being withdrawn in court on the 9^th February 2021.
10. It must be made clear that not all cases that are withdrawn under s.190 of the CPC are necessarily frivolous and vexatious. The court is entitled to take into account the facts and circumstances of the case commencing from the time of the alleged incident to the time of the withdrawal of the complaint. From the Form 6 Charge, the particulars of the offence charged were that ‘the appellant had drove a motor vehicle to wit a black Toyota land cruiser registration number MB- 0608 ........ on a road .......... without reasonable consideration for other road users, did drove off and veered off the road and hitting and breaking through the stripe barricade and finally landed in front of Central Plaza facing westerly direction on the easterly lane........’ Those stated particulars contained what had transpired on the morning of the 8^th August 2020. It was a fact that the appellant was the driver of vehicle registration number MB- 0608 that had veered off the road and hitting and breaking through the stripe barricade and landed in front of Central Plaza facing westerly direction on the easterly lane. In that regard, the appellant is connected to the actual complaint. Upon those facts alone, it can be established that a reasonable complaint had to be laid.
11. From those facts as well will the assessment of evidence be done by the prosecution. In their assessment of the evidence and if the prosecution is of the view that the available evidence will not support a conviction, it is then that they are at liberty to make an application under s.190 of the CPC to withdraw the complaint.
12. In this particular case, the police docket had just been received by the office of the DPP on or about the 8^th December 2020. Upon further consultation with the case officer in the matter, a legal opinion as to sufficiency of evidence was rendered by the prosecutor in carriage to the Director on the 1^st February 2021. That legal opinion was endorsed by the DPP and on the 4^th mention of the matter on the 8^th February 2021, it was withdrawn under s. 190 (2) (b) (i) of the CPC whereby the appellant was acquitted thereof.
13. The above factual situation is not in issue in this appeal. When one takes into account the meaning and definition of frivolous and vexatious as stated in paragraph 7 above to the factual situation in this case, one would ask that upon the facts as presented, was the complaint against the appellant obviously untenable?. There was an accident on the 8^th August 2020. The appellant was the driver of the vehicle that not only caused damage to the stripe barricade on the road but also on his own vehicle. It is upon the evidence that would be produced to court in a trial, that it is incumbent on the court to determine whether the prosecution had proved their case against the appellant to the required standard. In this case, the matter did not reach that stage of the proceeding because upon their own assessment of the evidence, the charge cannot be sustained. An application pursuant to s. 190 (2) (b) (i) of the CPC was made in court on the 8^th February 2021. On the 9^th February 2021, the complainant was withdrawn and the appellant was acquitted accordingly.
14. It is my view that upon the facts as presented in this case, a reasonable and probable cause of the offence under s. 40 (1) is established. I do not think that the complaint was manifestly groundless and manifestly faulty. I also do not think that the complaint was done in bad faith. There is no evidence before the court below and this court that the complaint was instigated by bad faith. I can also say that it was not intended to harass or embarrass the appellant. I am satisfied that due process was complied with in this case. I can therefore hold that the complaint in the Form 6 Charge in the court below was not frivolous and vexatious. I therefore dismiss ground 1 of the appeal.
15. Ground 2 and 3 of the appellant’s appeal can be dealt with together. It is argued by the appellant that the application for an abuse of process is not limited to stay of proceedings. It also includes proceedings that are frivolous and vexatious or oppressive. That argument is supported by Guadron J in the case of Ridgeway v The Queen. It was stated in that case that abuse of process cannot be restricted to defined and closed categories. This means that it is trite law that an argument of abuse of process is not limited to stay proceedings only.
16. Section 76 of the CPC was discussed in the case of McClusky v Attorney General –HCSI-CC187/94. There are two aspects that had to be considered by the court under S.76 of the Code. First is whether the complainant believes there is reasonable and probable cause that an offence had been committed. The belief held by the complainant must be an honest belief on reasonable grounds of the true existence of the facts of the complaint which, if true in fact, would lead an ordinary prudent and cautious man in the position of the complainant to conclude that the person charged was probably guilty of the offence. The second aspect is that upon receiving the complaint, the Magistrate must draw up or caused to be drawn up and must sign the formal charge containing the statement of offence with which the accused is charged. When that is done, the process of prosecution starts.
17. In this case, the appellant was involved in a traffic accident. The statement of the offence as particularised in the Form 6 Charge are that the appellant had hit and broke the stripe barricade on the road and landed on the easterly lane facing westward. The Form 6 Charge was drawn up by the police and brought to the Magistrate Court for perusal and endorsement. In the case of McClusky cited above, the court was of the view that in order for the Magistrate to discharge his/her official duty cast upon him/her, he/she must look below the surface of the information. He/she must be satisfied that there is admissible, substantiated and reliable evidence that a criminal offence has been committed by the accused.
18. The above statement in my view would mean that upon presentation of the Form 6 Charge at the Magistrate Court, the complainant must also have the available evidence in respect of the charge. That would assist the Magistrate to consider whether the charge was supported with evidence and endorse it under s.76 (4) of the Code.
19. In this case, disclosure of statements was made on the 17^th December 2020. That would necessarily mean that when the Form 6 Charge was brought to court for endorsement on the 3^rd December 2020, there was no evidence before the learned Magistrate to satisfy himself of the requirement of s.76 (4) of the Code.
20. Notwithstanding I wish to state that the charge against the appellant in this case is careless and inconsiderate driving. In the case of McClusky, the charge was one of conspiracy to commit felony in which case, evidence must be produced. That decision can be distinguished from the current case. At the time when the case was withdrawn by the DPP, the disclosure was not part of the court record. It would therefore be prudent that if an application under s.155 is made, there should be some directions made by the learned Magistrate in order to fully argue that issue. That was not done by the court below.
21. Taking into account the above discussion on appeal ground 2 and 3, I can say that the learned Magistrate had erred in her ruling that the issue of abuse of process is restricted to stay proceedings. On that note, the learned Magistrate had also erred in refusing to address the issue on the basis that she lacks jurisdiction to entertain that application. In any case, s.155 gives discretion to any court to hear and determine an application under that section.
22. Also in light of the above discussion and especially in relation to my view on the frivolous and vexatious argument, appeal ground 4 is a non-issue. On the outset, I wish to state that in cases where the court holds that a complaint is frivolous and vexatious, any court has the discretion to deal with applications under s.155 of the CPC, even the Magistrate Court. Proper directions should be made by that court for the filing of sworn statements and any other relevant documents in order to assist them in the proper discharge of their judicial duties.
23. The final ground of appeal is in relation to costs to the appellant. The general rule as to costs is that costs goes to the successful defendant. In this case, the defendant was acquitted following withdrawal of the complaint against him. Having considered the case authorities cited by both counsel for the appellant and the respondent, I can hold that the learned Magistrate had erred in failing to award cost for the appellant. Appeal ground 5 is allowed and the appellant is entitled to his costs. See the case of R v Alfred Kejoa Pohe Criminal Case No. 309 of 2008. Costs are to be taxed if not agreed.
24. For future cases involving applications under s.155 of the CPC, it would be prudent for the courts to enquire into the application and make necessary directions on how they wish to deal with the application. Each part must be entitled to file sworn statements in support of their respective positions and on the quantum of either compensation or costs. Only then will the court be assisted in dealing with the issues before it.

Court orders

1. Appeal allowed in part
2. The complaint is not frivolous and vexatious
3. Consequently the appellant is not entitled to compensation
4. The appellant is entitled to his costs both in the lower court and this court.
5. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge