Regina v Fasi [2012] SBMC 6; Criminal Case 896 of 2010 (13 August 2012)

IN THE CENTRAL MAGISTRATES COURT
SOLOMON ISLANDS

Criminal Jurisdiction
Criminal Case No. 896/2010

REGINA

V

JEREMY FASI

Mr R. Iomea for Prosecution
Ms M. Bird for Defence

Date of final submissions: 6 August 2012
Date of Ruling: 13 August 2012

RULING

(1) The defendant is charged with 2 counts which reads as follows:

Count 1 : Statement of Offence

Abuse 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.

Count 2: Statement of offence

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 authorised 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) On 28/1/11, the defendant appeared before Mr S. Metanomski and pleaded guilty to Count 1 and Count 2 was set down for trial on 9/2/11 when the prosecution withdrew count 2 and the defendant was acquitted pursuant to the provisions of Section 190(2)(b)(i) of the Criminal Procedure Code and I sought clarifications as to whether the sanction of the Director of Public Prosecution was filed in relation to count 1 as required by Section 96(2) of the Penal Code.

(3) On 13/4/2011 I ruled that the DPP failed to sanction the charge and prosecution withdrew the charge under section 190(2) (b) (ii) of the Criminal Procedure Code and I in exercise of my discretion acquitted the defendant under the provisions of section 190(2) (b)(i)as the matter was set down for trial.

(4) The prosecution appealed against my ruling to the High Court and on 14/10/2011 the High Court made the following orders:

• (1) Allow appeal;
• (2) Quash orders of the Magistrates' Court dated 13/4/2011;
• (3) Direct that the matter be remitted to the Magistrates Court to be re-heard afresh;
• (4) Direct that the respondent to appear in the Magistrates' Court on Monday 24th October 2011.
  

(5) The defendant appealed against the decision of the High Court to the Court of Appeal and the Court of Appeal dismissed the appeal and set aside orders (3) and (4) mentioned to in paragraph 4 above and in lieu thereof made the following orders:

(3) Direct that the matter be remitted to the Magistrates' Court for sentencing of the Appellant.

(4) Direct that the appellant appear in the Magistrates Court on a date to be fixed.

(6) On the 24/4/12 the defendant appeared in court with his counsel Ms M. Bird when the facts were read out and he admitted the facts as set out in the summary of facts and I entered a conviction and adjourned the matter to 30/4/12 for sentencing submissions.

(7) On 30th April 2012 the prosecution filed its written sentencing submissions and the defence filed written submissions in mitigation. The prosecution attached many case authorities including the case of R v Jeremy Fasi High Court Case No. 489/2004. The defendant in that case is the same person as the defendant in this case.

(8) Ms Bird was not aware of the case of R- v-Jeremy Fasi 489/2004 and I find that to be very surprising. Upon reading this case in court she drew my attention to paragraphs 14 and 15 of her submissions in mitigations and made an oral application for the plea to be vacated whilst in her written submissions in mitigation she had asked for a lenient sentence. Paragraphs 14 and 15 of the submissions read as follows:

Para 14

"The effect of the Declaration that was signed by the defendant was there was a Chiefs Determination that gave ownership rights over Lupa customary land to the Lupa tribe. It is submitted on behalf of the Defendant that the said determination is a Chiefs Determination which is subject to the jurisdiction of the Local Court

Para 15

"The said Chiefs determination is not a final determination in that it is not a law court determination which is binding between the parties. In effect the determination is an unaccepted settlement and in any event, it is reviewed by the Local Court by virtue of Section 12 of the Local Courts Act. In that regard it does not have a permanent prejudicial effect against Biche tribe."

(9) Mr Iomea was not in court and his colleague Mr Augustine Aulunga could not respond to Ms Bird's application for the plea to be vacated and I adjourned the case to 30th May 2012 when unfortunately both counsels were not present. Mr Iomea was in the High Court whilst Ms Bird was sick and I adjourned the matter to 20th June 2012 and I ordered both parties to file written submissions.

(10) The prosecution filed its written submission on 29th June 2012 and the defence on the 11th July 2012 and I adjourned this matter to 6th of August 2012 to seek further clarifications from Mr Iomea as Ms Bird in her written submissions said that the defence was not provided with any witness statement to suggest that the rights of members of Biche tribe was prejudiced.

(11) On 6th August 2012 Mr Iomea made the following additional submissions;

(a) That the court has to consider whether the defendant signing the statutory declaration which purported to correct the decision of the chief was prejudicial to the rights of the Biche tribe as the defendant does not dispute that he witnessed the statutory declaration.

(b) That the crown does not have to provide any witness statements from Biche tribe that their rights were prejudiced. He reiterated that the defendant's act of witnessing the statutory declaration is prejudicial to the rights of the members of Biche tribe.

(12) Ms Bird in response submitted that even if the act of witnessing the statutory declaration was prejudicial to the Biche tribe the prejudice was not of a permanent nature in light of provisions of section 12 of the Local Court Act wherein it is stated that the chiefs decision was not final and any aggrieved party can have it reviewed and Mr Iomea submitted that section 12 has no relevance and he further submitted that even if there is no evidence of prejudice the court can draw necessary inferences.

(13) Section 12 of the Local Court act reads as follows:

12. (1) Notwithstanding anything contained in this Act or in any other law, no local court shall have jurisdiction to hear and determine any customary land dispute unless it is satisfied that-

(a) The parties to the dispute had referred the dispute to the chiefs;

(b) All traditional means of solving the dispute have been exhausted; and

(c) No decision wholly acceptable to both parties has been made by the chiefs in connection with the dispute.

(2) it shall be sufficient evidence that the requirements of paragraphs (a) and (c) of subsection (1) have been fulfilled if the party referring the dispute to the local court produces to the local court a certificate, as prescribed in Form 1 of the Schedule, containing the required particulars and signed by two or more of the chiefs to whom the dispute had been referred.

(3) In addition to producing a certificate pursuant to subsection (2), the party referring the dispute to the local court shall lodge with the local court a written statement setting out-

(14) Under section 12 of the Local Court Act the local court's jurisdiction would only come into play when all the requirements of section 12(1) are met and of course the parties in this case had referred their dispute to the chiefs and to satisfy paragraphs (a) & (c) of subsection 1 the party referring the dispute to the Local court is required to produce a certificate signed by two or more chiefs.

(15) I think it is important that I should also discuss the contents of section 14 of the Local Court Act which reads as follows:

''14 (1) Where in any dispute referred to the chiefs, a decision wholly acceptable to both parties has been made by the chiefs, the chiefs or any of the parties to the dispute may, within three months from the date of the decision, cause a copy of the decision to be recorded by the local court.

(2) A copy of the decision referred to in subsection (1) shall be in such form as prescribed in Form II of the Schedule and shall contain the particulars prescribed in that form and signed by the parties and two or more of the chiefs who took part in making the decision.

(c) Any decision recorded by the local court pursuant to subsection (1) shall be deemed to be a decision of the local court for the purpose of any law.''

(16) If a decision is wholly acceptable then only it is deemed to be a decision of the local court for the purpose of any law otherwise it is not so there is some merit in the defence submission that the defendant's act of witnessing the statutory declaration had the potential to cause some prejudice to Biche tribe but whether it was sufficient to cause actual prejudice to the rights of members of Biche tribe.

(17) In the case of R v Marawa SBHC 51 Case No. 476/2004 J. Kabui said as follows:

"The result was that the defence of possible provocation and specifically self-defence surfaced only at the mitigation stage. At that stage, the learned Magistrate should have vacated the guilty plea and entered a plea of not guilty and continued with the trial. That was not done. At least, the defence of self-defence was recorded by the learned Magistrate at the mitigating stage before passing sentence. The question of the case being functus officio does not arise in this case."

(18) In the circumstances I set aside the plea and conviction that was entered earlier and I order that this matter shall proceed to trial.

Shafi Khan

Principal Magistrate