R v Dalipanda [2023] SBHC 142; HCSI-CRC 164 of 2019 (11 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Dalipanda
Citation:
Date of decision:	11 September 2023
Parties:	Rex v Stephen Kido Dalipanda, Robert Manu, Randy Hatigeva, Dalcy Maena, Tigi Sikele
Date of hearing:
Court file number(s):	164 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. The information on false pretences and official corruptions filed against all the defendants is remitted back to the Magistrates’ Court. 2. The defendants’ charges to be heard or tried the Magistrates’ Court, 3. All the defendants are bail to appear at the Honiara Magistrates’ Court on 25th September 2023 at 9am, 4. Bail of $1,000. 00 on Own Recognisance for each defendant, 5. Further direction is that the Magistrates’ Court give priority in the listing of information of all the defendants for trials. 6. No further order
Representation:	Suifa’asia for the Crown Kwaiga L for the Manu R Public Solicitor’s Office for Dalipanda S K Taupongi for Hatigeva R Weago S for Maena D Seuika for Sikele T
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 308 (a), S 91, Magistrates’ Courts Act [cap 20] S 27 (1) Criminal Procedure Code {cap 7] S 208, S 283, S 208 (a)
Cases cited:	Selo v Regina [2017] SBCA 17

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 164 of 2019
213 of 2023
215 of 2023

REX

V

STEPHEN DALIPANDA KIDO, ROBERT MANU, RANDY HATIGEVA, DALCY MAENA, TIGI SIKELE

Date of Ruling: 11 September 2023

Suifa’asia for the Crown
Kwaiga L for the Manu R
Public Solicitor’s Office for Dalipanda S K
Taupongi for Hatigeva R
Weago S for Maena D
Seuika for Sikele T

RULING ON THE COMMITTAL HEARING

Maina PJ:

1. The Magistrates’ Court had committed all the defendants to stand trial in the High Court on the charges of false pretences contrary section 308 (a) of the Penal Code and Official Corruption contrary section 91 of the Penal Code.
2. The Defendants were charged as follows:
   • (i) Dalipanda S K - 15 counts of false pretences,
   • (ii) Manu R Manu R - 16 counts of false pretences and 12 counts of Official Corruption,
   • (iii) Hatigeva R -10 counts of false pretences,
   • (iv) Maena D - 18 counts of false pretences and;
   • (v) Sikele T - 18 counts of false pretences.

Backgrounds

3. Upon the filing of their charges at the Magistrate Court (Case No 932 of 2016 and 1019 of 2016), the presiding magistrate held the Preliminary Inquiry (PI) and at one short form committal hearing on 29^th March 2018 committed all the Defendants to stand trial before the High Court.
4. In the committal ruling, the magistrate stated:
   • “The five defendants ......... are co-accused to the so-called Health Scandal offending. The Prosecution preferred to commit this matter to the High Court for trial on the basis that the prosecution seek a greater or higher sentence (from what normally been imposed at the magistrates) to be imposed on the defendants in the event of a conviction for all the charges. I agree with the submission and relied on the recent Court of Appeal decision of Gabi Selo v Regina SICOA No. 9003 of 2017 to support the view that this needs committal hearing”.
5. The presiding magistrate stated that he was satisfied that there is a prima facie case to commit all the defendants for trail in the High Court.

The Issue

6. Whether the committal of all the defendants by the Magistrates’ Court for the trial in the High Court was right or according to the law.

The Case

7. The case came up to this High Court after a committal hearing at the Magistrates’ Court and from the records, all the defendants entered not guilty plea on the charges against them.
8. The matter had been mentioned several times before my colleague judges until it came to me. On the first mention of the case before me, I noted from the information or all charges filed in court the charges are within the jurisdiction of the Magistrates’ Court and asked the Counsels why I should not send back the information for the trail at the Magistrate Court. I directed all the counsels make the submissions on this preliminary issue.
9. I informed the counsels that I will properly check the documents in the case file and the other two case files (Case no. 213 and Case no. 215) now opened for Sikele and Manu respectively. It is to check the committal for trail in the High Court of the defendants while the offences are within the jurisdiction of the Magistrate Court.
10. On the next mention date, I noted that there was no submission from all parties filed or presented to the court on the preliminary issue. The Crown Counsel informed the court that the information or charges had been separated from the main case file (HC Criminal Case No. 164 of 2019) opened upon the committal documents from the Magistrate Court.
11. Crown Counsel told the court that the listing committee had listed the information for trails:
    • For Robert Manu on four counts of official corruption before DJC. His Lordship Faukona should commence the trail on 21^st August 2023. The matter was for mention before his Lordship on 18^th August 2023 however, the case was handed back to me.
    • For Tigi Sikele on two counts of false pretences and one count of attempt false presence before me commencing on 9^th October 2023.
12. On the separation of the trail, Counsel Seuika for Tigi Sikele told the court that he was not aware of this separation but he agrees and raise the long-time delay of the case.
13. I informed the counsels that I will not separate the Sikele’s information from others until I review the documents in the case files.
14. On reviewing the documents in the main case file, I noted a letter from the DPP’s office to the Registrar of the High Court requesting three separate trails in regards to separate information as follows:
    • A joint charge for four accused Dalipanda SK, Manu R, Maena D, Hatigeva R on two counts of false pretences, filed on October 27 2022.
    • A single information for Robert Manu on four counts of official corruption, filed on 27^th October 2022.
    • A single information for Tgi Sikele on two counts of false pretences filed on 9^th November 2022.
15. The DPP asked for the above information to be given separate case numbers and separate trials for each of them. It was upon the request by the DPP’s office, the separate case files were created for the information of defendants Tigi Sikele (Criminal Case No. 213 of 2023) and Manu Robert (Criminal Case No. 215 of 2023)
16. In an Internal Memorandum to me dated 16^th August 2023, the Deputy Registrar adviced that the defendants Manu Robert and Tigi Sikele information are now separated from Dalipanda S K, Hatigeva R and Maena D (Criminal Case No. 164 of 2019).
17. I noted the separation however since the charges for all defendants were committed in one committal order and since the matter is now before the court, a judge should decide any separation of the charges on application or as sought by Crown. It should be upon accessing the application. With the separations, nothing was made to any judge but only with the direction of the Deputy Registrar of High Court.
18. I read the committal ruling of the presiding magistrate at the committal hearing when he stated in the second sentence of his ruling:
    • “The prosecution preferred to commit this matter to the High Court for trial on the basis that the prosecution will seek a greater or high sentence (from normally been imposed by the Magistrates Court to be imposed on the defendants in the event of a conviction for all the charges. I agree with that submission and relied on the recent Court of Appeal decision of Gabi v Regina SICOA CRAC 9003 of 2017 to support the view that this matter needs committal hearing”.(My emphasis)
19. The reasons for the committal of all the defendants to the High Court is clear and stated in the presiding magistrate’s ruling as highlighted above.

Criminal jurisdiction

20. Section 27 (1) of the Magistrates’ Courts Act (Cap 20) gives power to a Principal Magistrate's Court the jurisdiction to try summarily any criminal offence for which the maximum punishment prescribed by law for such offence does not exceed fourteen years' imprisonment.
21. In all respect, the offence of false pretence and liable to imprisonment for five years and for official corruption liable to imprisonment for seven years and within the jurisdiction of the Magistrates’ Courts.
22. For any punishment, the maximum punishment a Principal Magistrate’s Courts may impose, shall not exceed a term of imprisonment for five years.
23. I note the Gabi Selo v Regina^[1] that was referred to by the presiding magistrate. The case touched on referral by his Lordship Kouhota J to the Magistrate Court, which the Court of Appeal did not discussed. However; in the case, the accused Selo was committed again for sentencing in the High Court after he pleaded guilty and convicted at the Magistrates’ Court.
24. The provision in section 208 of the Criminal Procedure Code (CPC) [Cap. 7] provides.
    • “208. - (1) Where any person, not being less than eighteen years of age tried by a Court for an offence which is punishable either by that court or by the High Court and such person is convicted by the Magistrate's Court of that offence, then, if on obtaining information as to the character and antecedents of such person the Magistrate’s Court is of the opinion that they are such that greater punishment should be inflicted in respect of the offence than such court has power to inflict, the Magistrate’s Court may, in lieu of dealing with such person in any manner in which it has power to deal with him, commit him in custody to the High Court for sentence in accordance with the following provisions of this section”. (My emphasis)
25. Briefly, this provision applies if the Magistrates’ Court convict a person for the offence of the accused or such person, if the Magistrate’s Courts is of the opinion that they are such that greater punishment should be imposed in respect of the offence than such the magistrate court has power to inflict.

Analysis

26. With the information against the defendants, they were charged on false pretences, which carries a maximum penalty of five years imprisonment and Official Corruption, which carries a maximum penalty of seven years imprisonment.
27. The law is quite clear with any committal or referral of criminal matters to the High Court and they must be on basis or requirements:
    • Cases, which the Magistrates’ Courts do not have jurisdiction to hear the offences and committal under Part VII – Provision relating to the committal of accused for trail in the High Court.
    • Appeal to High Court against such judgment, sentence or order under section 283 of the CPC.
    • Under section 208 of the CPC, it is only referral for sentence and the defendants must be adults, and such person is or has been convicted by the Magistrates’ Courts of that offence.
28. The offences of false pretences and Official Corruption are under the jurisdiction of Principal Magistrates’ Courts and be heard by them. As noted above these are the only method or committal and referral of criminal cases to the High Court.
29. From the documents before this court, the information or charges for all the defendants have substantive connection or relate to the so-called health scandal (as described by the presiding magistrate) and involves a lot of money.
30. I would think it was on the basis that prompt the Crown to seek one-committal orders or PI for the defendants to stand trial in the High Court.
31. When the matter was committed this court, the separation of hearing with the false pretence and official corruption charges for the defendants came up.
32. While the separation of the hearing may be granted by a judge if the circumstance warranted it or by the discretion of the presiding judge, an important factors are:
    • the requirement under Part VII of the CPC - the Magistrates’ Courts do not have jurisdiction,
    • Appeal under section 283 of the CPC,
    • Referral for sentence under section 208 of the CPC,
33. With information of false pretence contrary section 208 (a) of the Penal Code and Official Corruption contrary section 91 of the Penal Code, these offences are all within the jurisdiction of principal magistrate.
34. The important considerations are that accused have been convicted by the Magistrate's Court of the offence, upon obtaining information on the character and antecedents of such persons; and the Magistrate’s Court thinks such accused deserves higher sentence he would not have power to impose.
35. For this referral, these are absence and therefore cannot be referred under section 208 of the CPC. It would be different or so if the defendants were also charged with other offences that were beyond the jurisdiction of the Magistrates’ Court.
36. I noted the comments by the counsels that the fact these matters had gone through PI and committal process with the concern of the delay of the defendant’s cases, these matters should now be dealt with in this court.
37. There has been problem with the handling of the information of the defendants at the lower court and with the Prosecution. It may be so with the consideration by them on the amount involved in this so-called health scandal. However, these defendants were charged with the offences triable at the lower court. The magistrate if the defendants were found guilty and convicted could or eligible to impose the maximum penalties for the offences.
38. Even with this court, the judge would impose the same maximum penalties which Magistrate Court has power to impose for each charges.
39. It is my view that committal orders by the principal magistrate of all the defendants to stand trial for the offences of false pretence, official corruption was errors in law, and the information filed against all the defendants is therefore remitted back to the Magistrates’ Court.

ORDERS OF THE COURT

1. The information on false pretences and official corruptions filed against all the defendants is remitted back to the Magistrates’ Court.
2. The defendants’ charges to be heard or tried the Magistrates’ Court,
3. All the defendants are bail to appear at the Honiara Magistrates’ Court on 25^th September 2023 at 9am,
4. Bail of $1,000. 00 on Own Recognisance for each defendant,
5. Further direction is that the Magistrates’ Court give priority in the listing of information of all the defendants for trials.
6. No further order

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge

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^[1] SICOA No. 9003 of 2017