R v Dettke [2021] SBMC 1; Criminal Case 1092 of 2020 (9 February 2021)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 1092 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: HORST HEINZ BODO DETTKE

Ms Hellen Naqu for the Crown

Mr Gabriel Suri for the Defence

Date of submissions: 8^th of February 2021

Date of ruling: 9^th of February 2021

RULING ON APPLICATION TO WITHDRAW UNDER SECTION 190 (2) (B) (I) OF THE CRIMINAL PROCEDURE CODE

Back-ground

1. On the 8^th of February 2021, the Crown made verbal submissions before this court, for the purpose of withdrawing the charge against Mr Horst Heinz Bodo Dettke, pursuant to section 190 (2) (b) (i) of the Criminal Procedure Code. Mr Dettke was charged for one count of careless and inconsiderate driving, an offence that is in contrary to section 40 (1) of the Road Transport Act.
2. The matter first came to court on the 8^th of December 2020, where Mr Dettke opted to engage a lawyer to represent him in court. The court then imposed several bail conditions, in which Mr Dettke was to comply with whilst his case was on foot before the court.
3. On the 25^th of January 2021, the court was informed, that the Prosecutor in carriage of the matter, had forwarded a memo to the Director of Public Prosecution, following a proposal sent by Mr Gabriel Suri, whom Mr Dettke had engaged to represent him in court.
4. In light of the application for withdrawal, the Crown acknowledges that they do not have sufficient evidence to prove whether or not Mr Dettke was driving in a careless and inconsiderate manner.

Defence submission

5. In response to the Crown’s application, Mr Suri tendered a written submission to both this court and Counsel appearing for the Crown.
6. The submission covers five main grounds, which I will outline as follows:

Appreciation to DPP

7. In this regard, Mr Suri conveyed his client’s appreciation to the Director of Public Prosecution for withdrawing the charge of careless and inconsiderate driving which was laid against him on the 30^th of November 2020.
8. Despite the Crown’s position, Mr Suri raises the fact that his client had been dragged to court, and as a Member of Parliament, had been ridiculed by the media. Hence, the court should express its opinion on how the case was investigated and how it was prosecuted.
9. Furthermore, Mr Suri argued, that if everyone is entitled to the protection of the law, as guaranteed by section 3 of the Constitution, it would mean that persons who are wrongly charged and wrongly prosecuted must also be entitled to seek redress from the court.

Abuse of Process

10. Mr Suri further submits that the complaint against his client, Mr Dettke, was laid before the court by the police with the clear knowledge that his client was the victim, and despite there not being any shred of evidence to suspect that his client had caused the traffic accident, is a clear abuse of the criminal process.
11. It is also submitted that the charge served on his client was signed and issued by a Magistrate of the Central Magistrates Court, without any shred of evidence to suspect that it was his client who caused the traffic accident. Moreover, the question was posed on whether the Magistrate has considered the witness statement before signing the charge. Mr Suri then raised the seriousness involved since it reflects the level of administration of justice in this regard.
12. The bail conditions imposed by the court were also said to have been imposed on the basis of no evidence with respect to the charge at hand.

Police Prosecution Incompetence or ill motive

13. Mr Suri also questioned why the charge was laid against his client, when the police (Police investigators and Police Prosecutions) were aware that the evidence available only points to him as the victim^[1].
14. Mr Suri questions, if such action shows incompetence on the part of the Police Prosecution or an ill motive^[2]. It was also asked if the action taken by the police, was done to tarnish his client’s reputation, as a Member of Parliament^[3].

Acquittal or Discharge

15. Referral was done to section 190 (2) (b) (i) of the Criminal Procedure Code and the call for Mr Dettke to be acquitted from the charge at hand.

Compensation in frivolous and vexatious charge

16. It is believed that the charge laid against Mr Dettke in this regard, is frivolous and vexatious, hence he must be paid reasonable compensation, which is to be assessed and costs of the criminal proceeding, pursuant to section 155 of the Criminal Procedure Code.

Analysis

17. The arguments advanced on behalf of Mr Dettke, dwells significantly on why the charge was initiated by the Police, when they knew that Mr Dettke was the victim. While this seems to be the gist of the Defence submission, this court does not have any evidence presented before it, in this regard.
18. With respect to the charge being signed by a Magistrate, I will make reference to the wordings of section 76 of the Criminal Procedure Code and further highlight that a Magistrate is not obliged to assess the evidence of a particular case before making the decision to sign a formal charge.
19. Clearly, the act of assessing evidence by a Magistrate, can only be done after the charge is put to the Accused and evidence is led. I support my view with the comments of Lungole-Awich, J, in the case of Regina v Musuota [1997]^[4], where he states at page 9, and I quote;

The power of the court to control proceedings before it includes ensuring that accused understands the offence he is charged with before he is asked to plead and evidence is led^[5].

20. From these comments alone, it is clear that evidence is produced before the court, after an accused has taken his plea. To say that the a Magistrate must first of all assess the evidence regarding any given charge before signing a charge, would be in contrary to section 76 of the criminal Procedure code, specifically subsections (1), (2), (3) and (4). It is with the greatest respect that I must say, that the argument raised at paragraph 2.2 of Mr Suri’s submission, is misleading and without basis.
21. The stance now taken by all Magistrates, follows the ruling made in the case of Regina v Edmond Sikua, Regina v Rose Malve Kaius Ipuni, and Regina v Henry Murray and Rose Murray^[6]. The Chief Magistrate’s ruling in this regard, covered the effect of not having a Magistrate sign a formal charge, and most importantly distinguishes between the form used by the Police for the Notice of offence Charged (NOOC) and form 6 of the Magistrates Court Act, prescribed by Fredrick Gordon Roy Ward, (Chief Justice as he then was) when he formulated the Magistrates Court (Form) Rules 1992, which were gazetted by legal notice No. 21^[7].
22. Section 76 of the Criminal Procedure Code was referred to multiple times to clarify the need for a Magistrate to sign a formal charge. For purposes of this ruling, I see fit that the relevant wordings of this section be outlined as follows:

Complaint and charge

76. - (1) Proceedings may be instituted either by the making of a complaint or by the bringing before a Magistrate of person who has been arrested without warrant^[8].

(2) Any person who believes from a reasonable and probable cause that an offence has been committed by any person may make a complaint thereof to a Magistrate having jurisdiction to cause such person to be brought before him^[9].

(3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the Magistrate, and, in either case, shall be signed by the complainant and the Magistrate^[10]:

Provided that where proceedings are instituted by a police or other public officer acting in the course of his duty, a formal charge duly signed by such officer may be presented to the Magistrate and shall, for the purposes of this Code, be deemed to be a complaint^[11].

(4) The Magistrate, upon receiving any such complaint, shall; unless such complaint has been laid in the form of a formal charge under the preceding subsection, draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged^[12].

(5) When an accused person who has been arrested without a warrant is brought before a Magistrate, a formal charge, containing a statement of the offence with which the accused is charged, shall be signed and presented by the police officer preferring the charge^[13].

23. From the wordings of section 76 (3) and section 76 (4) of the Criminal Procedure Code, it is very important to note the mandatory obligation through the word “shall”, where a Magistrate must provide his or her signature on the formal charge.
24. From the combined criminal cases of Regina v Edmond Sikua, Regina v Rose Malve Kaius Ipuni, and Regina v Henry Murray and Rose Murray, on the issue of charges not being signed by a Magistrate, the court went on to explain the effect of section 76 (3) and Section 76 (4).
25. As highlighted in the case of McCluskey v Attorney General^[14] and later in paragraph 45 of the combined cases cited above, section 76 (4) of the Criminal Procedure Code provides for a much higher test, than what is found under section 76 (2) of the Criminal Procedure Code. The reason rests on the fact that upon receiving a complaint, a Magistrate must draw up and sign the charge, which would then signal the fact that the process of prosecution has begun^[15].
26. You would note that Form 6 of the Magistrates Court (Form) Rules 1992, only dispenses with the requirement to, “draw up or cause to be drawn up”, and not the part where it states, “and shall be signed and presented”^[16].
27. Clearly, this is a case in which the Director of Public Prosecutions, has made an assessment, following internal correspondences with Counsel for the Defence, on the sufficiency of the evidence available to her, and as a result, made the decision to have the case withdrawn under section 190 (2) (b) (i) of the Criminal Procedure Code.
28. Section 91 (4) of the Constitution of Solomon Islands outlines the powers that can be exercised by the Director of Public Prosecutions in any given case. These powers are as follows:

Section 91 (4) -The Director of Public Prosecutions shall have power in any case in which he considers it desirable to do so^[17] -

(a) to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person^[18];

(b) to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority^[19]; and

(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority^[20].

29. The position taken by the Director of Public Prosecutions, is not objected by the Defence, as seen under paragraph 4 of their submission. This no doubt would result in orders being made by this court, for the Accused, Mr Dettke, to be acquitted from the charge against him.
30. I also understand that arguments have been raised regarding abuse of process and compensation. With regards to abuse of process, I am of the opinion that in the Magistrates Court, the same principle taken to stay criminal proceedings for abuse of process would also apply, as was in the unreported case between Regina v Mergozzi^[21].
31. At page 15, her worship Principal Magistrate Garo, as she was then, referred to the case of R v Horseferry Road Magistrates Court exp. Bennett [1994] 1A.C, where she states and I quote:

The House of Lords confirmed that justices have the power to stay criminal proceedings for abuse of process, but held that such power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of the court procedures. The wider supervisory responsibility for upholding the rule of law is vested in the High Court; where, therefore; a question arises as to the deliberate abuse of extradition procedures; justices should exercise their discretion to grant an adjournment to facilitate an application to the High Court (Applied in R v Bow Street Magistrates Court, ex p. Finch and Bossino [1999] 10 Arch bold News 1, DC)^[22].

32. An obvious interpretation of the view shared above, is the very fact that the Magistrates Court does not have the power to stay proceedings based on abuse of process^[23]. Coming back to the circumstances at hand, it will be right to say that this court does not have the jurisdiction to preside over cases relating to abuse of process.
33. The grounds regarding abuse of process in this regard, is best left to be determined by the High Court on the basis of malicious prosecution against the officer who laid the charge and Director of Public Prosecution, with reference to the case of Wong v Chin Foot Hap^[24].
34. With respect to compensation, this court also does not have the jurisdiction to grant such an order, unlike the High Court. While I accept that orders for cost can be made by this court, I note that the matter had been listed only for a total of four times, excluding today’s date, which is purposely for a ruling that could have already been handed down yesterday.
35. Obviously, I am denied the right of making a proper assessment before reaching an appropriate cost in this regard, given that there is nothing before me to assist in making an assessment.
36. In the near future, I would appreciate if submissions are being backed with substantial evidence and case authorities, I say this on the basis that while I acknowledge the effort put in place by Mr Suri to raise the very arguments made, I am of the view, and with the greatest respect, that his arguments have been made out of vacuum.
37. Hence, it is with these findings, that I make the following orders:

ORDERS

(i) The application for withdrawal pursuant to section 190 (2) (b) (i) of the Criminal Procedure Code is granted forthwith, the Accused, Mr Horst Heinz Bodo Dettke is hereby acquitted from the charge of careless and inconsiderate driving, contrary to section 40 (1) of the Road Transport Act;
(ii) The ground for abuse of process is dismissed;
(iii) The ground for compensation and costs, is dismissed;
(iv) Right of appeal applies within 14 days from today to any party that is aggrieved with this ruling.

Dated this 9^th day of February 2021.

____________

THE COURT

Ms Emily Z Vagibule-Magistrate

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^[1] Paragraph 3, defence’s submission, tendered on 8^th February 2021
^[2] Above n, 1.
^[3] Above n, 1.
^[4] [1997] SBHC 9: HC-CRC 041 of 1996 (14 March 1997).
^[5] Above n 4.
^[6] Regina v Edmond Sikua, Criminal Case No: 1031 of 2016; Regina v Rose Malve Kaius Ipuni, Criminal Case No: 802 of 2017; Regina v Henry Murray and Rose Murray, Criminal Case No: 865 of 2017. (25 October 2017).
^[7] Above n 6.
^[8] Section 76 (1) of the criminal Procedure Code.
^[9] Section 76 (2) of the Criminal Procedure Code.
^[10] Section 76 (3) of the Criminal Procedure Code.
^[11] Above n, 10.
^[12] Section 76 (4) of the Criminal Procedure Code.
^[13] Section 76 (5) of the Criminal Procedure Code.
^[14] [1993] SBHC 88; HCSI-CC 243 of 1993 (27 August 1993)
^[15] Above n, 14.
^[16] Above n, 6.
^[17] Section 91 (4) of the Constitution of Solomon Islands
^[18] Section 91 (4) (a) of the Constitution of Solomon Islands
^[19] Section 91 (4) (b) of the Constitution of Solomon Islands
^[20] Section 91 (4) (c) of the Constitution of Solomon Islands
^[21] Regina v Hanz Mergozzi, Criminal Case No: 31 of 2010, In the Western Magistrates Court, Ruling on application for a permanent stay of the proceedings against the applicant.
^[22] R v Horseferry Road Magistrates Court exp. Bennett [1994] 1A.C
^[23] Above n, 21.
^[24] Wong v Chin Foot hap [1994] SBHC 72; HCSI-CC 134 of 1991 (14 January 1994).