Regina v Apia [2017] SBMC 3; Criminal Case 808 of 2014 (21 February 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: February 17, 2017
Date of Decision: February 21, 2017

Ms. Joel for prosecution
Mr. Rano for defendant

DECISION ON APPLICATION FOR PERMANENT

STAY OF CRIMINAL PROCEEDING

Background of the case

1. The defendant in the amended charge is indicted for one 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. The alleged offending took place between 1^st of August to 6^th of October 2013 in Lord Howe, Malaita Outer Islands, where he was suspected of catching and storing certain amount of beche-de-mer products or, he aided and abetted the catching and storing of the beche-de-mers during a period prohibited for catching, storing or selling of beche-de-mers as declared by the Solomon Islands Government.
   
2. The amended charge was laid after the matter was remitted from the High Court for retrial following a successful appeal by the prosecution against a Magistrate’s decision in dismissing the matter at an earlier hearing. From then on, a total of six occasions this case was listed for trial but vacated due to transport or shipping difficulty to bring the prosecution’s witnesses from the Malaita Outer Islands to Honiara. The last occasion was 14^th of February 2017 when the trial should start but again vacated by the prosecution due to financial constraints encountered by the Royal Solomon Islands Police and the Office of the Director of Public Prosecutions for service of the summons and transporting of the witnesses to Honiara. Seeing that the trial could not proceed for the sixth time, the defendant applies for permanent stay of the criminal proceeding on the basis of undue delay and prejudice that occurred as a result.
   

Chronology of the case

3. At the outset, I consider it is pertinent at this stage to outline the chronology of the events unfolded when this case was relisted in the Magistrate’s Court for mentions and also, when previous trial dates were vacated. The reason for that, is to understand the delay it has taken so far, whose fault the delay should be attributed to and whether or not, the delay is undue or unreasonable.
   

Date	Outcome
13/4/2015	Case first relisted after it was remitted from the High Court. Defendant not aware of the mention date and matter adjourned for 30 days for filing of the amended charge and for summoning of the defendant.
13/5/2015	Matter mentioned and adjourned to the next day for prosecution to advise court about the status of summoning the defendant.
14/5/2015	Prosecution sought 15 days adjournment for service of summon on the defendant. Court granted 28 days adjournment for that purpose.
10/6/2015	Defendant now turned up in court and entered not guilty plea to the amended charge.[1]
24/6/2015	Matter should proceed for pre-trial hearing but further adjourned to 14 days since defence counsel on compassionate leave.
9/7/2015 and 14/7/2015	Matter on both occasions continued to adjourn for preparation of pre-trial papers.
28/7/2015 and 4/8/2015	Matter mentioned for setting of trial date but were adjourned due to the absence of then presiding Magistrate, Emmanuel Kouhota.
8/9/2015	First trial dates were set for 2//11/ - 13/11/2015. It appears that there were 3 interim mentions before 2/11/2015. For reasons unexplained, the dates were not recorded.
2/11/2015	Trial did not proceed because prosecution unable to bring its witnesses to Honiara due to shipping difficulty to Malaita Outer Islands. Trial vacated and matter adjourned for setting of new trial dates. First occasion trial vacated.
17/11/2015	Matter for mention only since the presiding Magistrate was not available.
1/12/2015	New trial dates were not fixed since defendant was not present in court. Warrant of arrest was issued and reviewable on 1/2/2016.
1/2/2016, 15/2/2016 and 29/2/2016	Matter mention for review of the warrant of arrest. Warrant of arrest still pending execution. On 29/2/2016, court adjourn the review of the warrant of arrest sine dire pending arrest of the defendant.
4/3/2016	Defendant finally turned up in court and was released on strict bail upon agreement by the prosecution.
18/3/2016	Case mention for pre-trial hearing but was vacated due to nonappearance of the defence counsel.
1/4/2016	Matter mentioned in the absence of the defendant who accompanied government delegation to visit wreckage in Lord Howe. New trial date was not set because of that reason.
22/4/2016	Matter mentioned but no appearance from the trial prosecutor and defence counsel. Matter formally reallocated to me to preside over the trial.
25/4/2016	Second trial dates were set to commence on 5/09/2016-16//09/2016 taking into account the commitments of both counsels and also, the court.
23/5/, 20/6, 18/7, and 15/8/2016	Case proceeded for interim mentions only pending trial.
31/08/2016	Matter mentioned inadvertently. Prosecution informed the court about the late travel of the ship to Lord Howe on the previous day (30/08/2016). A copy of the letter from the prosecution indicated its difficulty in bringing the witnesses was placed in the court’s file. Prosecution indicated that the status of the availability of the witnesses would be conveyed to court on the trial date.
5/9/2016	Trial did not proceed due to transport difficulty to bring the prosecution’s witnesses over to Honiara. Second occasion trial vacated. Court further deferred trial to 12/9/2016 due to prosecution had informed court on previous occasion that a ship that would bring the witnesses to Honiara had already travelled to Lord Howe on 30/08/2016.
12/9/2016	Trial again did not proceed. Prosecution asked for a day adjournment to conference its 3 witnesses who were brought over to Honiara. Prosecution was asked to update the court about the status of the confiscated beche-de-mer consignment. Third occasion trial vacated.
13/9/2016	Trial again did not commence and matter proceeded with preliminary argument advanced by the defence on alleged defectiveness of the charge and also, preference for an uninterrupted trial. Matter adjourned for a day for ruling. Fourth occasion trial vacated.
14/09/2016	Case proceeded with ruling. Application dismissed and matter should continue with trial. Prosecution indicated its intention of charging other defendants and therefore, sought an adjournment to get directive and approval from the Director of Public Prosecutions who was out of country. Fifth occasion trial vacated.
21/9/2016	New trial dates were again set to commence on 14/2/2017 - 24/2/2017. This will be the sixth time the case was listed for trial.
19/10, 16/11,14/12/2016, 11/1/2017 and 8/2/2017	Matter proceeded with interim mentions only pending trial.
14/2/2017	Matter did not proceed for trial due to transport/shipping difficulty to bring the witnesses from Lord Howe to Honiara. Also, the trial prosecutor was in Auki. A letter written by the prosecution dated 23/1/2017 was noted in the court’s file. That letter explained the difficulty to bring the witnesses from Malaita Outer Islands for trial due to financial constraints faced by the Royal Solomon Islands Police and the Office of the Director of Public Prosecutions since the beginning of this year (2017). Defence indicated making a stay of criminal proceeding submission for this case. Matter adjourned to 16/02/2017 for submissions on whether or not I should continue to vacate the trial date and set new dates or permanently stay the matter. Sixth occasion trial vacated.
16/2/2017	Case proceeded with the hearing of verbal submissions from both the prosecution and defence on stay application.

4. A look at the history of the case shows a period of 22 months this case was heard at the Central Magistrate’s Court after it was remitted from the High Court for retrial. Since then, no trial is yet to be conducted. That is, from 13^th of April 2015 – 16^th of February 2017. By calculation, there were total of 41 appearances (inclusive of 3 undated interim mentions) and 6 occasions the trial was vacated, mostly by the prosecution to bring its witnesses from the Malaita Outer Islands to Honiara.
   

Defence submission

5. The defence verbally submitted that the charge should be permanently stayed due to undue delay and prejudice that the defendant had suffered. This is because the prosecution did not diligently undertake to bring its witnesses to Honiara for the trial. A period of more than 4 months (that is since 21/9/2016) was given but unutilised in terms of its financial and logistical preparations to ensure its witnesses are brought over to Honiara in time. The difficulty of shipping services to Malaita Outer Islands and its schedule inconsistencies were well aware of by the prosecution since this is not the first encounter of the prosecution of such difficulty. The trial was vacated on several occasions on more or less the same reasons and according to the defence view, the prosecution should prepare logistical and financial arrangements for the trial well in advance. The defendant has been waiting anxiously for the trial and since then, he was unable to carry out his professional job as a result of this case. I was urged to consider in a rather comparative way that police was very quick to send its officials through the use of Patrol Boat^[2] to arrest the defendant when he was suspected of committing this offence at the first place but, did the opposite when it comes to trial.
   
6. The essence of the defendant’s submission is that, against this background of the times elapsed from 21^st of September 2016 to 14^th of February 2017 (being the sixth time the trial was listed and vacated), a period of more than 4 months of non-action by the prosecution to seriously and diligently prepare the financial and logistical arrangements for the witnesses to attend the trial is inexcusable and inordinate. The financial constraints relied on by the police and prosecution are mere excuses and should be disregarded. Therefore, as says, by the defence, the criminal proceeding against the defendant should be permanently stayed or alternatively, prosecution should withdraw the charge under section 190 (2) (b) of the Criminal Procedure Code.
   

Prosecution submission

7. The prosecution on the other hand asked the court not to stay the case but to further list it for trial in May 2017. That is within 3 months from now. Ms. Joel emphatically urged the court to consider the primary reason for not able to avail the witnesses for trial was due to financial difficulty faced by both government offices early this year – that is, the Royal Solomon Islands Police and the Office of the Director of Public Prosecutions. A sworn statement of Edward Vilaka dated 16^th February 2017 was produced to verify the prosecution’s assertion of the difficulty encountered. I will refer and discuss relevant parts of that sworn statement later in the course of this ruling.
   

Whether or not Magistrate Court can stay criminal proceeding

8. I think it’s important to resolve this issue at the outset since it will be a waste of court’s time and resources to hear this application which otherwise, should be reserved to the appropriate court. Not only that, but, the obvious consequence that it will amount to an abuse of the court process if this court adjudicates over such application.
   
9. The Criminal Procedure Code and other legislations^[3] governing instituting of criminal proceedings are silent on whether or not the Magistrates Court has jurisdiction to hear applications for permanent stay of criminal proceeding. Therefore, the court has to look at case laws to resolve this dilemma.
   
10. It is conventional and a normal practice in criminal cases that applications for stay of criminal proceeding are normally heard in the High Court. The reason for this may be due to the inherent and unlimited jurisdiction of the High Court to deal with such matters and also, for its supervisory role for prevention of an abuse of the legal process or any prejudice that may arise if a trial continues at the Magistrates Court. This view was adopted in a High Court case of R v Peter Shanel,^[4]where Kouhota J, when dealing with an application for stay of criminal proceeding stated:
    

“In my view this means that applicant has to show that the continuation of the proceeding in the Magistrates Court would be so unfairly oppressive that it would constitute an abuse of process or to show actual prejudice if the trial ensured.”^[5]

11. Despite that applications for stay of proceedings at the High Court seems to be the modus operandi, in another High Court case of Elisah Ngatu v Director of Public Prosecutions,^[6] the court expressly stated that an application for permanent stay of criminal proceedings ought to be heard before a trial judge or magistrate because of the benefit a judge or magistrate has in assessing any alleged prejudice and how that may be perfected in terms of the admissibility of evidence, directions and the management of the case. The reference to “trial judge or trial magistrate” means the judge or magistrate who conducts the criminal trial in the court of first instance. In the case of Ngatu, the applicant lodged an application in the High Court for permanent stay of a forgery charge faced by the defendant at the Central Magistrate’s Court on the grounds of undue delay and prejudice that the defendant allegedly suffered as a result. The applicant decided to bring the matter to the High Court despite it was still pending determination at the Magistrates Court. When recommending the application ought to be heard before the trial magistrate, Cameron J, (as he was then) at paragraph 25 stated:
    

“25 As part of this consideration, I return to the fact earlier stated that the claimant has not made any application for a stay to the trial judge in the Magistrates Court. He has by-passed that Court and come directly to the High Court seeking relief. However, it is well established that such applications ought to be made to the trial judge, for the reason that the trial judge is in the best position to ascertain the effect of any alleged prejudice and how that may be ameliorated in terms of rulings as to the admissibility of evidence, directions and the like. In a passage from Attorney General Reference No. 2 case, quoted with approval in Robu’s case (para 15), the House of Lords in discussing whether a stay proceedings would be appropriate said:

“But this will not be the appropriate course if the apprehended unfairness can be cured by exercise of the trial judge’s discretion within the trial process.”^[7]

And in Attorney General’s Reference No. 1 of 1990 [1992] QB 630, the Court of Appeal stated, p.642:

“We would like to add to that statement of principle by stressing a point which is sometimes overlooked, namely that the trial process itself is equipped to deal with the bulks of complaints which have in recent Divisional Court cases founded applications for stay.”

12. His Lordship, Cameron J, then at (para 26) affirmatively concluded:
    

“For these reasons, I consider this application ought to have been made to the trial judge in the Magistrate’s Court.”

13. The principles laid down in Ngatu’s case clearly uncovered the reason why applications for stay of proceedings ought to be heard before a trial judge or magistrate and not to an appellate judge. It also accords or consistent with the common law principles that apply and adopted into our legal system under Schedule 3 of the National Constitution of Solomon Islands. Given the decision of Ngatu was not appealed or overturned in the Court of Appeal and more importantly, reflected the position taken by common law, in my view, the principles enunciated in that case represents the law of this country.
    
14. Relying on this authority, I reject the submission by the prosecution that only the High Court has the jurisdiction to deal with applications for stay of criminal proceedings but, in so far as the precedent set out in Ngatu stands, I am bound to follow and therefore, I am satisfied that this court can also hear this application.
    

The Law on application for permanent stay of criminal proceeding

15. I refer to the Court of Appeal case of Robu v R^[8] which sets out the principles to be applied in application for permanent stay of criminal proceeding. At paragraph 15 of the decision, the Court stated:
    

“It is well settled and not disputed a trial judge may order a stay of proceedings either before or during trial provided an accused can show on the balance of probabilities the delay complained of has resulted or will result in his suffering serious prejudices to the extent that he has not or will not receive a fair trial. In other words, the continuation of the proceedings amount to an abuse of the process of the Court.”

16. The law governing permanent stay of criminal proceedings have more or less been settled both locally and in other common law jurisdictions. It is a remedy that can only be used in exceptional case which can only be granted on exceptional grounds or under exceptional circumstances.^[9]
    
17. In this application, the defendant sought an order to permanently stay the criminal proceeding on the ground of undue or inordinate delay particularly the delay occasioned due to the continuous vacation of the trial dates. Therefore, it is pertinent to examine the law on the issue of delay in an application for stay of proceeding to ascertain whether or not there is merit in the present application.
    

Law on delay

18. Perhaps the most overly recited authority on this issue is the Australian case of Jago v The District Court of New South Wales & Others^[10] cited with approval in R v Hence and Ors.^[11] In Jago’s case, Mason CJ, stated that to justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing the trial judge can do in the conduct of the trial can relief against its unfair consequences. In that case, the learned CJ has referred to a number of matters which the court should take into account when deciding the question of stay on the ground of delay. These are, first, whether the conduct of the applicant has contributed to the delay; second, whether the applicant has pressed for expedition in a manner consistent with the anxiety and concern he is said to be suffering; third, whether the court resources are available for an expedited trial; and, fourth, whether the displacement of other trials is warranted.
    

Length of delay

19. Overall, a total of 22 months this case has been heard without a trial after it was remitted from the High Court. Almost 5 months of that period the case failed to progress due to the defendant’s failure to appear from periods 13/4/2015 – 14/5/2015, 1/12/2015 – 29/3/2016 and 1/4/2016. That delay was derailed by the conduct of the defendant. So in fact, 17 months was the actual length of time the case proceeded normally in court and in most instances, in the presence of the defendant.
    
20. The length of the interval between the first and second trial is about 10 months. About 3 months of this period, the matter could not progress due to the absences of the defendant whilst he was under a warrant of arrest and for accompanying the government delegation to visit the wreckage in the Malaita Outer Islands. From the second (5/9/2016) to the fifth trial (14/09/2016), a delay period of only 9 days. So to expect all witnesses from the remote areas of Lord Howe to miraculously attend within this short span of time in Honiara for the trial would be unrealistic and clearly impossible.
    
21. Since the listing date to the vacation of the recent trial (21/9/2016 – 14/2/2017), a period of less than 5 months is undoubtedly the length of time the defendant had complained of as unduly wasted by the prosecution to mobilise its witnesses for trial. When carefully considered, this length of time in itself alone cannot be said to amount to an abuse of court process. In fact, it was dominated by interim mentions pending the trial where on 4 occasions (19/10/2016, 16/11/2016, 14/12/2016 and 11/01/2017), the defendant was given the benefit of not attending court in light of the Christmas festive season and the court’s vacation period. Therefore, even if there is some delay, that must be considered and weighed along with other factors.
    

Reason for the delay

22. There is no dispute that the trial was vacated for the sixth time. There is also no dispute that about 5 months had been given to the prosecution to prepare its financial and logistical arrangements to bring the witnesses from Malaita Outer Islands but was unsuccessful. That is since 21^st of September 2016.
    
23. The sworn statement of the police officer, Edward Vilaka, revealed the principal reason for not bringing the witnesses over to Honiara for the recent trial date was largely due to financial constraints faced by police and the Office of the Director of Public Prosecutions. He explained that in January this year (2017), his office was tasked to serve the summons on the witnesses in Ontong Java and bring them to trial but they were not able to do so due to lack of funds. Even an arrangement made earlier with Pelau Police Officers to travel by boat so that they would assemble the witnesses at a pick-up location or port of call where they could board a ship to Honiara was cancelled, emanated from the same problem, that is, the lack of funds. All efforts to bring the witnesses in time have been unduly shattered by the financial predicament which is something utterly beyond the control of police and the prosecution.
    
24. I think this is not an excuse as described by learned counsel for the defendant. It is a state of financial ailment that normally experienced by most government ministries in the beginning of a financial year. Since the Royal Solomon Islands Police and the office of the Director of Public Prosecutions are government offices, they are of course not immune to it. The internal affairs and how the respective offices have prioritised and managed its finances or any maladministration are matters that this court will not interfere with. The court’s primary duty is to try cases that come within the doors of its jurisdiction and to restrain what it perceived to be an abuse of its process.
    
25. Therefore, to suggest that police and the prosecution have failed to allocate any fund since late last year is an educated assumption. However, proper consideration of the history and circumstance of this case may help to mitigate the repetition of future delays if forward planning is deemed necessary.
    
26. The delay of 5 months or even 22 months per se, in the present case, in my view, is not undue or unreasonable to warrant a permanent stay of this proceeding. It is a normal delay in the course of trying to mobilise witnesses who are living in the remote areas of the Malaita Outer Islands. In fact, it is not an extreme delay as it would have been so 10 years ago to render the trial prejudicial to the defendant. Instead, it is my view that the situation encountered can be easily alleviated or remedied by further listing a new trial date on another convenient dates.
    
27. In these circumstances, I do not consider the defendant will suffer serious prejudice to the extent that his trial will not be fair if it is to be proceeded with, given the lapse of time that occasioned.
    
28. I have considered the materials submitted for this application and unfortunately, nothing has been shown that would justify me to grant the application.
    

ORDERS OF THE COURT

29. It follows that upon hearing from both counsels for the prosecution and the defendant, it is adjudged and ordered that the application for permanent stay of the criminal proceeding against the defendant, Reginald Apia, is hereby dismissed.
    
30. Order for relisting of the trial to any nearest date convenient to all parties. It is incumbent on the prosecution to make early necessary arrangements for attendance of the witnesses for the trial in order to avoid repetition of the financial and logistical predicaments previously encountered by the prosecution.
    
31. To avoid any more further delays, the trial will still proceed even if the prosecution witnesses are not available.
    
32. Order accordingly.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] Sworn and filed on 10^th June 2015
^[2] RSIPV Lata
^[3] For example, the Penal Code, The Evidence Act 2009, Magistrates’ Court Act 2014 (as amended)
^[4] HC-SI CRC 29 of 2016
^[5] At page 4 of the decision
^[6] HCSI-CC No. 447 of 2009
^[7] At paragraph 13 of the decision of Attorney General Reference No. 2 of 2001 [2003] UKHL 68
^[8] SBCA 14
^[9] Connelly v DPP [1964] AC 1254
^[10](1989) 168 CLR 23
^[11] [2012] SBHC 54; HCSI-CRC No. 255 of 2004