Regina v Apia [2016] SBMC 30; Criminal Case 808 of 2014 (14 September 2016)

IN THE CENTRAL MAGISTRATES COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 808 of 2014

Regina

v

Reginald Apia

Prosecution: Mr. M. Hauirae of ODPP
Defence: Mr. W. Rano of Rano and Company
Hearing: September 13, 2016
Ruling: September 14, 2016

Ruling on application to strike out charge alleged to be defective

1. This is a matter to decide on the verbal application by counsel for the defendant asking the Court to strike out the amended charge dated 27/05/2015 on the basis that it was defective in form and substance.
   
2. The applicant’s argument is in relation to the inclusion of section 21 (c) of the Penal Code which implicated the defendant had aided and abetted others in the commission of the offence. Hence, given that the witnesses who will testify against him are potential offenders, this has the potential to incriminate them and therefore, the Crown will not have any evidence to rely on and eventually support its case at the end of the day. Also, the other potential suspects need to be charged first before the defendant could be properly seen in law to be aiding and abetting other co-defendants. This is unfair to them as submitted by the defence.
   
3. I have considered the merit of the application and unfortunately, I am not incline to accept that submission for the following reasons:
   

3.1 First, the fact that he was charged as a principal offender or alternatively, as an abettor or aider of the other suspects whilst those suspects are not identified or charged does not make the charge to become defective. The Crown is entitled to place before the Court all direct and surrounding evidence implicating the defendant on how he alleged to have committed the offence or assisted the others in the commission of the offence. These evidences are relevant in order for the Court to properly understand his involvement either directly or indirectly in a more extended way. In principle, that is the underlying reason for the need to have section 21 in our Penal Code. Therefore, it matters not that the other suspects have to be charged first in order for the defendant to be charged under section 21 because this will create an artificial trial or allowing the Court to hear trial in an evidentiary vacuum. The practical effect if the Court accedes to that notion is that, it will prevent the Court from properly and fully understanding the defendant’s participation in the commission of the offence. Further, it will unnecessarily halt trials pending the charging of the other suspects which in most cases will not possible if for some reasons the suspects are not found. (See case of R v Olifei HC-CRC 344/2009 and R v Oeta and Maelalia [2004] SBHC 123).

3.2 Second, the issue that it will be unfair to the defendant or his suspects is also misconceived. It is my view that the defendant has been provided with full disclosures and at the very least; he expects the nature of the charge pursuant to section 21(c) of the Penal Code. Therefore, in this instance, he is not ambushed as a result of charging him as an aider or abettor. In relation to whether it is unfair to the other suspects, I take cognizance that they are not charged or even represented by any lawyer so that in law, they could be unfair during the trial. Hence, it is irrelevant to say that they will be prejudiced or they will be unfair for the purpose of this proceeding.

3.3 Finally, the contents or wordings of the charge itself need to be ascertained whether or not it is defective. I have carefully looked at the wordings of the charge and it is my view that it contains all the necessary elements needed for the charge under section 13A of the Fisheries (Amendment) Regulation as read together with section 59 of the Fisheries Act 1998. It clearly identifies and explicitly states the following:

(a) identify of the defendant,

(b) place of the offending,

(c) date of the offending, and

(d) the manner in which he and the others alleged to have committed the alleged offence.

Accordingly, it complies with section 117 and 120 of the Criminal Procedure Code for rules of framing of a charge. I am not satisfied that even if there is any error or defect on the charge it will amount to an error of law or a miscarriage of justice such that the amended charge against the defendant has to be quashed (See Kemakeza v R [2008] SBHC 44 HCSI-CRC 478 of 2007).

4. Based on those reasons narrated above, the application by the defence to quash or strike out the amended charge against the defendant, Reginald Apia is dismissed forthwith.
   
5. Defendant has the right to appeal this ruling to the High Court within 14 days as of today.
   

...........................................................
THE COURT

Augustine Aulanga – Principal Magistrate