Regina v Fasi [2011] SBMC 6; Criminal Case 896 of 2010 (13 April 2011)

IN THE CENTRAL MAGISTRATES COURT

Criminal Case No. 896/2010

REGINA

V

JEREMY FASI

Date of Hearing: 5/4/11
Date of Sentence: 13/4/2011

Prosecution: Mr Iomea
Defence: Ms M. Bird

RULING

(1) The accused was charged with 2 counts:

Statement of offence

Count 1: Abusive of office Section 96 (1) of Penal Code.

Particulars of offence

On 23 July 2008 at Honiara in the Guadalcanal Province being employed in the Public Service in abuse of the authority of his office did an arbitrary act prejudicial to the rights of members of the Biche Tribe.

Statement of Offence

Ct2: Forgery Section 337 (3)(e) of the Penal Code.

Particulars of offence

On 23 July 2008 at Honiara in the Guadalcanal Province forged a document which a Magistrate was authorized by law to make namely a Statutory Declaration of the Marovo Council of Chiefs over Lupa original Customary Land Boundary with intent to defraud the Biche tribe.

(2) The accused pleaded guilty to count 1 on 28/1/11 and the count 2 was set down for trial on 9/2/11.

(3) On the 9/2/11 the prosecution sought leave to withdraw count 2 and the accused was acquitted pursuant to section 190 (2)(b)(i) of Criminal Procedure Code.

(4) I did not take the plea on count 1 and I sought clarifications as to whether the sanction of the DPP was required under section 96 (2) of the Penal Code.

(5) The prosecution did not have the sanction of Director of Public Prosecution on its
file and the matter was stood down and later the learned prosecution produced a letter dated 8/2/11 (I believe it should read 9/2/11). The letter was written by DPP and it reads as follows:

"8th February 2011

Chief Magistrate

Central Magistrate's Court

Honiara

Attn: Criminal Court Clerk

Dear Sir

Re: Sanction to prosecute Jeremy Fasi

I am asked by Principal Legal Officer and Prosecutor of this matter, Mr Ricky Iomea that the court has enquired whether the DPP had sanctioned the prosecution of Jeremy Fasi.

I confirm that the DPP on 15 March 2010 sanctioned the prosecution of Jeremy Fasi. This was by way of endorsing on the opinion submitted by a lawyer of my office seeking my approval. Following that the police were then instructed to charge Fasi accordingly.

S96 (2) of the Penal Code was complied with when I gave my approval.

Yours faithfully

Mr Ronald Bei Talasasa Jr

Director of Public Prosecutions"

(6) Ms Bird submitted that the letter was not sufficient and a proper sanction ought to
have been filed; and that the case cannot proceed in its present form and she sought further time to make submission.

(7) Both parties have since filed written submissions. The defence submission is that
Section 96(2) has not been complied with and therefore the defendant should be acquitted. Section 96 (2) read as follows:

"(2) a prosecution for any offences under this or either of the two last proceeding sanctions shall not be instituted except by or court the sanction of the Director of Public Prosecutions."

In support of that contention the defence annexed a copy of the sanction to prosecute which was filed in the case of R v/s Mark Kemakeza criminal case no. 1241/09. A copy of the sanction is annexed hereto. Mark Kemakeza was charged under Section 96 (1) of the Penal Code as is the accused in the present case.

(8) The prosecution submitted that a sanction is not required and even if it is required
the accused should be discharged and relied on the case of Raj v State FJ HC 97 HAA 140.2007. (18th April 2008). In this case the accused was discharged as it was held that the charge was a nullity.

(9) I hold that the sanction of the DPP was required before the charge could be laid against the accused.

What are the consequences of DPP's failure to file the sanction?

(10) In the case of Raj v/s State (supra) J Maitaitoga held that the charge was a nullity
and set aside the conviction and sentence and ordered that the case may be retried subject to the DPP filing the appropriate sanction. Whereas in the case of Regina v/s Maebinna (1999) SBHC 136; HC-CRC 160/1999 (6 September 1999) J. Kabui after holding that a sanction was required for the charges to be laid against the defendant set aside the conviction and sentence and acquitted the accused.

(11) The position of the High Courts in the cases cited above were different. In the Fiji
case the matter was an appeal and in the case R v/s Maebinna the matter was before the court on revisionary powers.

(12) I have already held that the sanction of the DPP was required to lay the charges and
in the absence thereof the charge is defective and the prosecution cannot proceed against the accused with the charge in present form.

(13) Mr Iomea submitted that I should discharge the accused under section 190
(2)(b)(ii) of the CPC. The powers under that section will only come into play when the prosecution seeks leave to withdraw the charge and that has not been done as yet.

(14) I will now be calling upon the prosecution to elect as to what it wishes to do.

Shafi Khan
Principal Magistrate