Regina v Qazobatu [2017] SBMC 8; Criminal Case 844 of 2016 (8 May 2017)

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

Criminal Case No. 844 of 2016

REGINA

-V-

TOMMY QAZOBATU


Date of Hearing: May 3, 2017
Date of Decision: May 8, 2017

Ms. M. Suifa’asia for prosecution
Mr. R. Dive for defendant

DECISION ON APPLICATION FOR

DISMISSAL OF THE CHARGE

The application

1. In this application, Tommy Qazobatu, (“defendant”) seeks to dismiss the charge under section 192 (1) of the Criminal Procedure Code (CPC) on the grounds of delay by the prosecution to diligently and promptly expedite the case and other associated injustices that occurred to his case as a result. He complained that several occasions, this matter was mentioned without proceeding to pretrial conference (PTC) or even for trial. He blamed the conduct of the prosecutor in carriage who on record, Ms. Margaret Suifa’aisa, for causing the delay. The delay has caused him to incur financial loss when attending to his case and this has breached his right to have his matter heard or tried within a reasonable time. Therefore, as said by the defendant, this matter should be dismissed with costs.
   
2. The prosecution in response said the delay was not deliberate or intentional. The delay to proceed further with the case was due to an oversea training commitment and other court engagements the responsible prosecutor has attended to. Also, this case is still at its embryo stage and there is likelihood of laying additional charges against the defendant. Further, since this case involves theft of money over a period of time; the need to properly consider and settle on the charge before the PTC is essential. Combined with the seriousness of the allegation, the prosecution says that these are proper reasons warranting the court not to prematurely terminate the case but to remedy the situation by dismissing the application and list the matter for finalising of the charge(s) and eventually, for PTC.
   

Issues for determination

3. Since the application was made under section 192 (1) of the CPC , the overarching issues for me to answer in light of the requirements of that proviso are; first, whether the court can dismiss the charge for delay by the prosecution despite attendance of the prosecution during the period complained of. Second, whether the delay is unreasonable and will prevent the defendant to have a fair trial or hearing. Finally, what remedial steps the court may take to redress such situation.
   

The adjournments

4. The chronology of the adjournments and events unfolded when the case was mentioned at the Central Magistrate’s Court is as follows:
   

Number of mention	Date	Outcome of case	Prosecution	Defence
1	15/11/2016	First mention and defendant released on bail. Defendant unrepresented and matter adjourned to 29/11/2016.	PC. Teula	In person
2	29/11/2016	Defendant now represented by Ronald Dive. Disclosures sought. Police prosecutions decided to transfer the case to ODPP due to seriousness of the allegation.	PC. Maelanga	Mr. Ronald Dive
3	12/12/2016	ODPP now appeared. No appearance by the defendant or even his lawyer. Warrant of Arrest (WOA) issued. Matter adjourned to 17/01/2017 for review of the WOA.	Mr. Zoze	N/A[1]
4	17/01/2017	Defendant appeared with his lawyer. WOA withdrawn after court accepted defendant’s explanation. Court ordered service of disclosures to his lawyer. Case yet to be allocated to any prosecutor in the ODPP.	Mr. Zoze	Mr. Ronald Dive
5	31/1/2017	Defendant asked for 14 days adjournment to take instruction for arraignment.	Mrs. Ramosaea	Mr. Ronald Dive
6	14/02/2017	Defendant entered a not guilty plea to the charge. Prosecution advised that Ms. Suifa’asia is the prosecutor for this case and currently, she still involved in a High Court trial. Matter adjourned to 28/02/2017 for PTC.	Ms. Rizzu	Mr. Ronald Dive
7	28/02/2017	Prosecution asked for 28 days adjournment for PTC since Ms. Suifa’asia had left for overseas training. Court not impressed with the delay for PTC and granted only 14 days. Matter adjourned to 14/3/2017 for PTC. PTC directions issued.	Ms. Rizzu	Mr. Ronald Dive
8	14/3/2017	Matter should be for PTC but presiding Magistrate disqualified her from the case due to conflict of interest. Court adjourned the case to 28/3/2017 presumably for PTC.	Ms. Joel	N/A
9	28/3/2017	PTC documents not yet prepared due to prosecution intended to amend the charge. Defence also confirmed the prosecution’s intention and blamed the prosecutor in carriage for delaying the proposed amendment. Matter adjourned to 7/4/2017 for possible amendment to the charge.	Mr. Kekou	Mr. Ronald Dive
10	7/4/2017	The charge was yet to be amended since Ms. Suifa’asia who currently overseas preferred to personally perfect the charge. Prosecution asked to adjourn the matter pending her return for that course. Court again infuriated with the conduct of the prosecution as unnecessarily delayed the case. Matter adjourned to 21/4/2017 for oral PTC.	Ms. Ratu	N/A
11	21/4/2017	PTC did not proceed. Ms. Suifa’asia already returned but went to Auki for another High Court commitment. Prosecution indicated filing additional charges and hence, sought time to perform the outstanding task. Defence fed up with continuous delay and notified his intention to apply for dismissal of the charge in due course.	Ms. Tito	Mr. Ronald Dive
12	28/4/2017	Ms. Suifa’asia now personally appeared and apology rendered for the course of her non appearances. Matter adjourned to 3/5/2017 for hearing of the defence application to dismiss the charge.	Ms. Suifa’asia	Mr. Ronald Dive

Length of time matter proceeded at the Central Magistrate’s Court

5. There are total of 12 hearings this case has taken so far, starting from 15^th November 2016. The first two mentions were conducted by the Police Prosecutions Office whilst the ODPP appeared for the rest. Therefore, a period of almost 6 months the case has been proceeded at the Magistrates Court. For the ODPP, a period of almost 5 months after it was transferred from the Police Prosecution.
   
6. On 9^th February 2017, it was formally assigned to the concerned prosecutor. So in fact, the current prosecutor only had carriage of the file for a period of almost 3 months. About 2 months of that period she did not attend to this matter due to an oversea training and only a month, she started to work on the file amidst her other court commitments. During the course of perusing the file, she intended to file additional charges and will do so within a week pending the outcome of this application. Despite her nonattendances, her colleagues from the ODPP had attended to this matter on all occasions.
   
7. In summary, the explanations offered by the learned prosecutor are; the need to file additional charges given the nature of the case and her recent perusal of the file combined with her other court commitments have unfortunately dragged this case this far. These were not deliberate and intentional as claimed by the defence but circumstances that are inevitable.
   

Section 192 (1) of the Criminal Procedure Code

8. This is a case where the defence wanted to dismiss the charge under section 192 (1) of the CPC despite the attendances of the ODPP. The history of the case is clear that whilst the delay occasioned is unfortunate, the ODPP has attended to all mentions. There is no contrary argument to this and hence, I accept the court’s record as accurately reflecting the attendance of both parties.
   
9. On a plain reading of section 192 (1), three things must be satisfied by the applicant before the court may exercise its discretion to dismiss the charge. First, there must be a date set by the court for a hearing or for further hearing of a case. Second, the complainant fails to appear despite being advised or notified of the hearing date. Finally, the court may dismiss the charge if the interest of justice requires.
   
10. There is no issue that this case is yet to reach the PTC or even trial. Also, there is no issue that on those mentions, the prosecutors from the ODPP had consistently attended despite the nonattendance of the assigned prosecutor or even when the defendant or his lawyer did not turn up.
    
11. From what had transpired before me, it is implicit from the prosecution’s behavior that the ODPP has seriously considered the importance of this case not to leave it unattended and hence, ensured its prosecutors faithfully attended and advised the court about the reasons for the nonattendance of the prosecuting counsel to justify the adjournments.
    
12. Having identified and explained the requirements in order to survive an application under section 192 (1) of the CPC, the question now is; whether the court can dismiss the charge for delay allegedly caused by the prosecution despite the prosecution’s appearances during the period complained of.
    
13. In my view, I will answer this question in the negative. The requirement of section 192 (1) of the CPC is very clear. It requires nonattendance of the prosecution or the complainant as a precondition for dismissal of the charge. In other words, the prosecutor who is the representative of the complainant must physically absent in court after adjournment before the discretion to dismiss a charge arises. Hence, to ask the court to dismiss the charge pursuant to the provision^[2] despite the attendance of the ODPP officers who are the representatives of the complainant in my view is misconceived, without legal basis and tantamount to an abuse of the legal process. Examples of cases being dismissed for failure of the prosecution to appear can be seen in Regina v Pitisopa^[3], Regina v Maenu’u^[4] and Regina v Belo.^[5] These cases involved nonappearance of the prosecution despite clear notice to attend resulting in the court had to dismiss the charge. The facts and circumstance in the current case is different to those cases and therefore, care must be taken if reliance is to be placed on any of those authorities.
    
14. The court in our jurisdiction has recognised the nonattendance of the prosecution as a prescribed condition ought to be fulfilled before a charge can be dismissed under section 192 of the CPC. In Regina v Willie Fafoi,^[6] Palmer CJ, explained:
    

“Section 192 of the CPC also gives discretion to the court to dismiss a charge if the complainant fails to appear after an adjournment....the discretion arises when the prescribed condition is fulfilled, that of the non-attendance of the complainant or his advocate.”^[7]

15. The Magistrates Court is a creature of statutes. Its powers are derived and confined within the bounds of the Magistrates Court Act^[8] and the Criminal Procedure Code when dealing with criminal matters. It has no inherent powers like the High Court or other superior courts and hence, by implication, its powers cannot be exercised willy-nilly. Unless it is expressly prescribed by law, any exercise of its powers without legal basis will be erroneous.
    
16. Since the requirement of section 192^[9] is self-explanatory and unambiguous, it is my view that to make a finding that is inconsistent with its requirements will certainly unfounded in law and utterly, against the interest of justice.
    

Delay by the prosecution and prejudice to the defendant to try his matter within reasonable time

17. It is also submitted on behalf of the defendant that the delay caused by the prosecution had caused injustice to him to have his matter tried fairly within a reasonable time and further, had wasted much of the court’s time and resources. I am also urged to consider that he had incurred financial loss as a result of attending to his matter for the past occasions.
    
18. Whilst the delay is unfortunate and unacceptable, I do not think the delay of about 5 months is unreasonable or even unconscionable. In fact, the delay of about 5 months when under the carriage of ODPP or even 6 months since the inception of the proceeding per se it is not extreme as it would have been 5 or 10 years ago to render the hearing prejudicial or unfair to the defendant. Taking into account the current number of cases (inclusive of civil and domestic matters) and the limited number of court rooms at the Central Magistrate’s Court, I do not think his matter will be tried and finalised within few months after the instituting of the charge. Unless he pleads guilty, the criminal process of managing cases to trial must take its normal course.
    
19. Therefore, the right to have the defendant’s matter tried within a reasonable time must be interpreted and understood according to the circumstance of our country and one that cannot be compared to other advanced jurisdictions with less crime rate.
    
20. The prosecution is as much entitled to a fair hearing as is the defendant. The discretion to dismiss a criminal charge on the basis of infringing the right of the defendant for a fair trial on an application like this must be decided on a ‘balancing exercise.’ This view is well settled and recognised in and outside our jurisdiction.
    
21. In R v Morin,^[10] the Supreme Court of Canada stated:
    

“The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.”

22. Also in the case of Martin v Tuaranga District Court,^[11] the court when outlining the relevant factors to take into account in deciding whether or not to dismiss the charge in light of the right of the defendant to a fair trial echoed:
    

“The right to have a criminal case determined in a reasonable time must be determined by reference to the right of the individual to a fair trial process leading to a just result. In considering any such application the court will consider whether the delay is such as it is likely to prevent a fair trial. That will depend on various factors such as the length of delay, the reasons for the delay, the nature of the charge and the evidence to be called by either to a fair trial process leading to a just result.”^[12]

23. In our jurisdiction, the court in Regina v Kokili,^[13] also made similar observations consistent with the approach taken in Morin and Tuaranga District Court. In that case, Palmer CJ, emphasised the need for the court to take into account other important factors and not to focus only on the interest of the defendant when deciding whether or not to dismiss the charge. At (para 11), his Lordship reiterated:
    

“A court is obliged to carefully balance the interests of justice, the seriousness of the case, the public interest at play in bringing accused persons to trial, the costs and time expended in investigations, the interest of victims in seeing that a matter is brought to trial or heard in court, as well as balancing the interests of an accused, before making any decision.”^[14]

24. From these authorities, it is clear that the defendant’s right to have his matter tried fairly within a reasonable time or any prejudice or unfairness that he/she suffered, is not the only decisive factor in considering whether or not to dismiss the charge. There are other equally and important factors that the court ought to consider as well. One of them is the interest of the public represented by the prosecution that also has an important right in seeing that justice is done both to defendant and to the public.
    
25. Therefore, in the present case, to dismiss the charge against the defendant that involves a theft of almost $1 million (SI) for delay less than 6 months at the Magistrates Court is a serious matter. It is an extreme form of judicial disposition of a case. It clashes with the interests of the state representing the general body of citizens in bringing the case to justice. The more serious the charge the greater the interests of the community in ensuring the case goes to trial. This is particularly relevant and more compelling when the current charge is a felony and involves theft of significant amount of money.
    
26. Based on these reasons narrated herein, again, I am not persuaded to dismiss the charge on the alleged ground of unreasonable delay or even on any associated injustices or prejudice that the defendant has suffered as a result.
    
27. Instead, it is my view, that this situation can easily be remedied by expediting the matter to ensure the prosecution’s action in prosecuting the case is compatible with the need to ensure the case is heard quickly as the circumstance permits.
    

ORDERS OF THE COURT

28. It follows that upon hearing from counsel for the prosecution and the defendant, it is adjudged and ordered that the application to dismiss the charge against the defendant, Tommy Qazobatu, is hereby dismissed.
    
29. Order for quick listing of this matter for pre-trial hearing on a date suitable with both parties. To ensure compliance, directions will be issued for filing of the pre-trial documents.
    
30. It is incumbent on the prosecution to file and serve any proposed additional charge(s) inclusive of any disclosure in support to the defence within reasonable time before the pre-trial hearing date.
    
31. No order for costs.
    
32. 14 days right of appeal.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] No attendance
^[2] 192 of the CPC
^[3] [1999] SBHC 135. A case dismissed for nonattendance of the prosecutor for a matter proceeded as part heard trial previously vacated for several occasions
^[4] [1998] SBHC 80; HCSI-CRC 11 of 1998
^[5] [1999] SBHC 106; HC-CRAC 126 of 1999
^[6] HCSI-CRC No. 120 of 2010
^[7] Page 3, paragraph 2 of the original decision
^[8] As amended of 2014
^[9] CPC
^[10] [1992] 1 SCR 771; (1992) 71 CCC (3d) 1
^[11] [1995] 2 NZLR 419
^[12] Referred to in Seru v State [2003] FJCA 26; AAU0041.99S & AAU0042.99S (30 May 2003).
^[13] HCSI-CRC-No. 320 of 2009
^[14] I bid. Also see R v Hellen Kasi HCSI-CRC No. 141 of 2009 for similar remarks