Regina v Habatia [2017] SBMC 30; Criminal Case 536 of 2017 (25 July 2017)

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

Criminal Case No. 536 of 2017

REGINA
-v-
CHARLES SOLOMON HABATIA

Date of Hearing: July 11, 2017
Date of Decision: July 25, 2017

Ms. F. Fakari’i for the prosecution
Mr. C. Ruele for the defence

RULING ON APPLICATION TO DISMISS THE CHARGE

1. In this application, counsel for the accused applies to dismiss the charge for failure of police to formally arrest the accused as required under section 10(1) and 18(a)(b)(c) of the Criminal Procedure Code (“CPC”). On three occasions, the accused was invited by the Professional Standards & Internal Investigations (PSII) for interrogation and the eventual laying of the charge. However, he was not informed or warned that he was under arrest for a criminal offence. This according to the accused is improper and contravened section 10(1) and 18(a)(b)(c) of the CPC as read together with section 5 and 10(2)(b) of the Constitution. Therefore, according to his view, the charge should be dismissed for this statutory noncompliance.
   
2. A sworn statement of the accused was tendered in support of the application. That sworn statement confirms his assertion that police failed to formally arrest him on those three occasions when he was invited by PSII for questioning in relation to the allegation contained in the charge. What occurred was, after the interviews, police just asked him to attend to PSII office and charged him without advising him that he was now being arrested for a criminal offence.
   
3. The prosecution offered no evidence and conceded to the argument that there was not any point in time he was arrested by police. However, the prosecution argued that the Magistrates Court does not have any statutory power to dismiss the case under this circumstance, but only in certain situations where the law prescribes. Those situations are; for nonattendance of the complainant or the prosecutor during the hearing of a case as required under section 187(1) or 192(1) of the CPC or, when there is no case for the accused to answer during trial under section 197 of the CPC. As part of its counter argument, the prosecution submitted that the charge was instituted as a ‘complaint’ made by police against the accused under section 76 of the CPC and therefore, regardless of whether or not the accused was arrested, the requirement to bring a criminal case against the accused in court has already been fulfilled.
   
4. The materials before me disclosed the following undisputed facts:
   
   • (a) The charge of conversion contrary to section 278(1)(c)(i) of the Penal Code faced by the accused is not a cognizable offence but only a misdemeanour;
     
   • (b) That the period he believed to have committed the offence was several months ago before the date he was charged;
     
   • (c) That on two occasions – 27/03/2017 and 06/04/2017, he was requested by the PSII to participate in an interview;
     
   • (d) That on the third occasion – 2^nd May 2017, he was charged by police;
     
   • (e) That on those occasions, he was very cooperative when he was under police investigations and at no time, he showed any sign of resistance when he attended to the police officers; and
     
   • (f) That during those occasions, the police officers at PSII did not inform or warn him that he was under arrest for the allegation brought against him except that he was asked to sign the charge laid against him by police under section 76 of the CPC.
     
5. The question of whether or not to arrest a person without a warrant before laying of charge is a matter ought to be decided in light of the facts of a case and one that has to be complied with section 18 of the CPC. Where a decision to arrest a suspect under section 18 of the CPC is made, then the manner or mode of arrest required under section 10 (1) of the CPC comes into play. Both sections have to be read and considered together when effecting an arrest. Otherwise, an arrest without a warrant will be invalid.
   
6. It is well settled in common law as expounded in the case of Alderson v Booth^[1] that it is no longer a requirement that police officers must actually touch or seize a suspect during an arrest before the suspect can be said to be lawfully under ‘arrest’ but mere utterance of words to inform him/her of the arrest is sufficient. That position was adopted and mirrored in section 10 (1) of the CPC that provides a police officer or other person making the arrest can carry out arrest on a suspect through other forms and not necessarily by touching or confining of the suspect. The use of the word “unless there be a submission to the custody by word or action”^[2] indicates other form of arrest that police may use which could be considered a lawful arrest other than by touching or confining of the suspect.
   
7. The facts of this case is straight forward and is different from a case where the accused was apprehended by police without a warrant for a felony or due to the accused has committed an offence in the presence of the police officers or due to resistance or obstruction of the police officers during the course of performing their duties in order he can be arrested without a warrant. Rather, it is a case where a compliant was made under section 76 of the CPC by police or PSII against the accused who is also a police officer following an internal investigation. Hence, section 18 of the CPC is irrelevant. In other words, the facts of this case it is one that precludes the police to carry out any arrest on the accused without a warrant since any arrest carried out on him when the requirements of section 18 of the CPC are not met will make the arrest invalid. In my view, to avoid any arrest that will contravene section 18 of the CPC, the proper course is to institute a complaint under section 76 of the CPC for his appearance in court. It is on that basis if he fails to appear on a specified date in court then a warrant of arrest can be sought for his arrest. That is exactly what appears to be the case here.
   
8. The arrangement to interview him on those two occasions and the laying of the charge are the statutory duties expected of police in the performance of their work as required under section 49 (3) (d) of the Police Act 2013.
   
9. Section 49 (3) (d) of the Police Act 2013 states:
   

“(3) A police officer has a duty to –

(a) .........

(b).........

(c) .........

(d) detect offenders and bring them to justice; and

(e).....”

10. In this case, the detecting and filing a complaint against the accused is one of the duties of police officers. Therefore, it cannot be said that a failure to arrest him before the laying of the charge will render the charge/case null and void. If that is the mandatory criteria in all criminal proceedings that the accused has to be arrested before the laying of the charge then it is expected that either the CPC or the Police Act 2013 will expressly say so especially for misdemeanour cases where police decides to charge a suspect following an investigation like the present case. The absence of it must mean those two options in bringing a suspect to court. One is through making an arrest before charging of a suspect and the other is through the direct filing of a complaint under section 76 of the CPC.
    
11. It is my view that a simple conveying or requesting of the accused by PSII and the laying of the charge in those circumstances without any formal arrest cannot invalidate a proceeding. The utterance of the words to the effect that a suspect is under arrest before the laying of charge in cases like the present case is only a safeguard to avoid any uncertainty or ambiguity that may arise when dealing with suspects who are new to the criminal process. However, as a matter of fairness to the suspect that police must inform him or her of the nature of the charge as soon as practicable.
    
12. The accused is a police officer by a rank of police superintendent and according to his sworn statement, he has been interrogated by PSII on two occasions before he was charged. Hence, he as a senior police officer, having interrogated by police is a serious matter and therefore, the laying of the charge on him is reasonably expected and should not come as a surprise. He cannot be said to be confused or unaware of the allegation levelled against him. The fact that he signed the charge when it was presented to him at the PSII office shows he now acknowledges and aware of the content of the allegation contained in the charge. Further, it also shows that he is now indicted with a criminal offence described in the charge since after all, the content of the charge presented to him is self-explanatory.
    
13. The only default I noted on the part of the police investigators is the failure to inform him of his right to know the nature of allegation made against him after he was charged.
    
14. However, any breach of his constitutional right should not be a bar to any prosecution. The law on was expressed in R v Tana^[3] where (then Kabui J) stated:
    

“Section 5 of the Constitution protects personal freedom of the individual from unlawful arrest and detention by the Police on behalf of the State. The Police as the law enforcement agency of the State must also follow the law in respecting the freedom of the individual and that is why the Police are expected to do the right thing. They must follow the correct procedure in effecting arrest and placing an arrested person in custody. However, the freedom of the individual from arrest and detention by the Police as a fundamental right is no bar to the prosecution of any person who has committed a crime.”^[4]

15. The law is clear that a breach of one’s constitutional right during the course of police investigation should not halt a criminal proceeding but can be remedied or vindicated by resorting to the appropriate court^[5] using the proper course of action for damages.
    
16. Having settled on this view, I therefore reject this application to dismiss this matter as sought for by the accused. Even if I find otherwise, I am not aware whether I have the legal basis to dismiss the charge in such application like this. Unfortunately, the Magistrates Courts Act, the Penal Code and the CPC are silent on this. Hence, to avoid making any erroneous decision, it is proper at this stage to remain within the bounds of law.
    
17. It follows that this application to dismiss the charge for noncompliance with section 10 and 18 of the CPC is therefore dismissed.
    
18. 14 days right of appeal applies.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] (1969) 53 CrApp 301
^[2] Section 10(1) of the CPC
^[3] [2003] SBHC 48; HC-CRC 175 of 2002
^[4] At page 3
^[5] The High Court of Solomon Islands as the court of first instance for constitutional questions