Regina v Apia [2017] SBMC 15; CMC-CRC 808 of 2014 (1 May 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 808 of 2014

REGINA

-V-

REGINALD APIA

Date of Hearing: May 1, 2017
Date of Decision: May 1, 2017

Mr. Abe for prosecution
Mr. Kaihuna for defence

DECISION ON APPLICATION FOR WITHDRAWAL UNDER

SECTION 190 (2)(b)(ii) OF THE CRIMINAL PROCEDURE CODE

The Application

1. This is a brief ruling following the verbal applications submitted by the prosecution and defence.
   
2. This matter was listed today for trial, being the seventh occasion the trial should proceed. Prosecution however applied to withdraw the case against the defendant, Reginald Apia, under section 190(2)(b)(ii) of the Criminal Procedure Code (“CPC”). The prosecution says that some of the prosecution witnesses were implicated to have participated in the harvesting of the beche-de-mer during the prohibited period and therefore, the charge against the defendant should be withdrawn with the view of reinstating it in future if there is enough evidence for further prosecution of this case.
   
3. Mr. Kaihuna on behalf of the defendant initially agreed to the application but then later retracted and opposed it. He raised the issue of excessive delay this case has taken so far and thus, by withdrawing it with the view of recharging the defendant in future will inevitably cause further delay. Besides, there is also likelihood that the witnesses will not come forward to give evidence for the prosecution in the event the trial proceeds. Therefore, he submitted that the appropriate course is not to discharge Apia but to acquit him forthwith.

Decision

4. I have considered the application by the prosecution under section 190(2)(b)(ii) of the CPC and accordingly, that section requires the consent of the court as a prescribed condition either for discharge or acquittal of a case. I have listened to the merit of the prosecution’s application regarding the reasons for the discharge and not acquittal and unfortunately, I disagree with the prosecution. Instead, I have decided to exercise my powers to withdraw entirely the current charge instituted against the defendant under section 190(2)(b)(i) of the CPC.
   
5. The reasons for this are straightforward.
   
6. Firstly; to discharge the defendant so that prosecution will recharge him again in future given the delay of almost 3 years this matter has taken so far is inexcusable, unsatisfactory and clearly inordinate. The prosecution has been given too much time and resources to investigate this case for nearly 3 years and did absolutely nothing to improve its case. If there has been a prospect to further investigate this case then, the prosecution should have done it already. Unfortunately, this does not occur in this case.
   
7. Finally; another obvious reason for granting the order for acquittal is the unreasonable delay and the prejudicial effect that the matter will have on Apia if he is to be recharged again in future. Since the inception of this matter in 2014, he has been attending to his previous vacated trial dates and this is the seventh occasion the trial did not proceed. He has been waiting anxiously to know the outcome of his matter only to be continuously vacated by the prosecution. To allow the police to recharge him again in future given the lapse of delay this case has taken so far will further delay or derailed the case. This will offend his right to have his matter tried within a reasonable time as provided in the Constitution of Solomon Islands. Despite the charge faced by Apia is serious and the public interest for the prosecution of the case is high, that consideration must be balanced or weighed against the need to deal expeditiously with the case. In fact, it is also in the interest of the public that the defendant must have his matter tried expeditiously and not to continuously vacate it as what occurred in this case.
   

Orders of the Court

8. Therefore, an order to acquit Apia and not to discharge him is the reasonable and appropriate finding the court finds for this case. I order that Mr. Reginald Apia is acquitted forthwith of the present and single count of catches and retains beche-de-mer, contrary to regulation 13A of the Fisheries (Amendment) Regulations 2009 and section 59 of the Fisheries Act 1998 as read together with section 21 of the Penal Code.
   
9. Having reached this finding, a certificate for his acquittal will be produced and furnished forthwith.
   
10. Order accordingly.
    

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THE COURT

Augustine Aulanga – Principal Magistrate