Regina v Sungaguika [2017] SBMC 10; Criminal Case 1028 of 2016 (23 May 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)
Criminal Case No. 1028 of 2016
REGINA
-V-
SAUL SUNGAGUIKA
Prosecution: No Appearance
Defence: Mr. N. Laurere
Hearing: May 22, 2017
Ruling: May 23, 2017
RULING ON APPLICATION FOR
COMPENSATION FOLLOWING DISMISSAL OF CHARGES
1. Following the dismissal of the charges under section 187 of the Criminal Procedure Code (CPC) for want of prosecution, counsel for the accused applied under section 155 of the CPC for an order for the prosecution to pay compensation to the accused for instituting the charges that Mr. Laurere described as ‘frivolous and vexatious.’
2. The defence urged the court to consider that the accused was discharged of the charges that are frivolous and vexatious and therefore, the prosecution should meet the cost of transporting the accused to his village in Rennel. Also, the prosecution should fund his daily allowance of $50.00 per day, commencing from the date of the order until he returns to his village. The need for food and the cost of living in town pending his return to his village warrant the court to grant such orders.
3. I think this application can be properly decided by examining the requirements of section 155 of the CPC otherwise, it will be improperly decided.
4. At the outset, it should be clearly understood that the charges faced by the accused were dismissed due to the nonappearance of the prosecution and not from an application under section 190 or 197 of the CPC. That is the principal reason for the dismissal of this case. Therefore, when this case is dismissed, it is done purely on the ground of want of prosecution and not on the merit of the charges or the allegations.
5. When I look at the charges, I think the consideration of whether or not they are frivolous and vexatious depends on the nature of the allegations and the evidence gathered to support such allegations. The court will normally form that view when a case is dismissed upon an application by the prosecution under section 190 of the CPC before trial or, after the close of prosecution case under 197 of the CPC. From these two avenues, the court will ascertain any flimsiness or flaw or inherent defect/weakness of the prosecution’s case to determine whether or not the charges or the nature of the allegations is such that there is no prospect of conviction even if the matter goes to trial. It is upon the dismissal of a case under either of the two avenues that a discretion to award compensation may arise.
6. Here, the accused was charged for disturbing the religious assembly that took place at Magae area and also for drunk and disorderly behavior at the same area where the religious activity occurred. Ordinarily, these are allegations expected under section 132 and 175 (e) of the Penal Code. Whether or not they are frivolous and vexatious can only be determined if the court has the benefit to hear the prosecution’s evidence whether during pretrial or at the no case to answer hearing.
7. This case had already bypassed the pretrial stage and if there is any decision to withdraw the case then that decision should have been already actioned. The prosecution however decided to proceed with the trial based on its own assessment of the evidence. From the brief pretrial hearing, I do not see any triviality of the allegations or even the charges. Also, I do not see any malicious intention or ill motive harbored by police when investigating this case.
8. The fact that I set this matter for trial shows that these charges contained genuine allegations lawfully instituted by police against the accused. They need to be tried in court to ensure the due process of prosecuting an offender takes place. They are not trivial or flimsy or manifestly groundless as argued by the defence. The prosecution’s evidence is yet to be produced in court when this matter was dismissed. Therefore, it cannot be said that the charges are frivolous and vexatious when the dismissal is one that based on want of prosecution pursuant to section 187 of the CPC.
9. Unfortunately, this application is quite misconceived and must be dismissed. Having reached this finding, it is needless for me to consider the financial hardships faced and will be faced by the accused pending his return. Even if they are to be considered, they will not make any difference to the findings I reached herein. There are many offenders who also in the same position as he is in past and therefore, his concern is of no exceptional circumstance that would warrant his case to be considered differently or exceptionally.
10. Therefore, it follows that this application by the accused is dismissed.
11. Parties to bear its own costs.

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THE COURT
Augustine Aulanga – Principal Magistrate