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R v Shanel [2019] SBCA 1; SICOA-CRAC 29 of 2018 (12 April 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. The appellant was arrested without warrant on 9 October 2014 and subsequently charged with assault occasioning bodily harm, contrary to s 245 of the Penal Code [cap. 26]. He appeared before the Honiara Magistrates’ Court on 13 April 2015 and on subsequent mention dates. On 19 January 2016 his counsel made an unsuccessful application to have the charge dismissed as an abuse of court process.
2. The matter came before the Court of Appeal on appeal from a decision of the High Court dismissing an appeal against a Principal Magistrate’s dismissal of that application.

Factual matrix

3. On or about 18 March 2015 the appellant was served with a document headed “Notice of Offence Charge”. It was a combination of forms prescribed under the Magistrates’ Courts (Form Rules) LN 21/1992 - form 6 being the charge pursuant to s 76 of the Criminal Procedure Code [cap. 7] (“the CPC”) and forms 2 and 3 being a recognisance without/with sureties pursuant to s 107 of the CPC.
4. The top half of the document did not follow precisely the wording and layout of the prescribed form 6, but no point has been taken about that. Suffice it to say that it is common ground that it was effective as the formal charge signed by Sergeant J Leguhavi.
5. The bottom half of the document was completed as a recognisance without sureties (that is, form 2). It contained details of a recognisance taken out by the appellant in the sum of SBD $500.00, conditioned on his attending the Honiara Magistrates’ Court on 13 April 2015 at 0900 hours.
6. The appellant attended court on that day and on subsequent mention dates. He pleaded not guilty on 14 May 2015.

Decisions of the Magistrates’ Court and the High Court

7. On 19 January 2016, the day before the trial was to commence, counsel for the appellant made an application to the Magistrates’ Court to have the charge dismissed as an abuse of process. His contention was that, pursuant to s 77 of the CPC, he should also have been served with a summons to compel his attendance at court. Principal Magistrate Taeburi dismissed the application on 20 January 2016 and directed that the trial proceed. The Magistrate reasoned that there was no need for a summons in circumstances where he had been released on police bail to attend court on 13 April 2015 at 0900 hours. She said that had he failed to attend when required, a summons could have been issued to compel his attendance.
8. Ten days later, the appellant appealed to the High Court against the Principal Magistrate’s decision. The appeal was heard by the Chief Justice. His Lordship summarized the appellant’s contention before the High Court in this way. The issue of the Notice of Offence Charge should necessarily have been accompanied by a summons or a warrant. The following steps should have been taken sequentially. (1) The police should have presented the formal charge before a Magistrate. (2) The Magistrate should have signed the charge. (3) The Magistrate should have issued a summons or warrant. (4) The summons or warrant should have been served on the appellant, requiring him to attend court. Failure to comply with that mandatory process resulted in his attendance at court on 13 April 2015 being unlawful and in violation of his constitutional rights to liberty and protection of the law.
9. On 1 August 2018 the Chief Justice dismissed that appeal and remitted the matter to the Magistrates’ Court.
10. By about March 2016 the trial was completed in the Magistrates’ Court but for the delivery of judgment. It was formally adjourned pending the outcome of the appeal to the High Court. When this appeal to the Court of Appeal was commenced, the Magistrate’s decision was again deferred pending the outcome of the appeal.

The issue before the Court of Appeal

11. In this court the appellant did not challenge the validity of the procedure by which he was brought before the Magistrates’ Court on 13 April 2015.
12. In written submissions his counsel said
    • The Appellant does not take issue with anyone about the use of Police powers to compel attendance of a person at the commencement of Magistrate Court proceedings. However, we respectfully dispute the notion that Police Prosecutors can use the law to continue to compel the court attendance of an accused person after that person has been charged and the Court proceeding progress as a judicial process.
13. In oral submissions counsel for the appellant submitted that once his client had been brought before the Magistrates’ Court and the judicial process had been set in motion, the conditions of his bail could not be relied on to compel his subsequent attendance at court. He submitted that, on the proper construction of ss 76 and 77 of the CPC, his client’s subsequent attendance at court could be compelled only by the Magistrate issuing a summons. Further, he submitted that the Magistrate’s failure to do so constituted a breach of his fundamental rights and freedoms under ss 3 and 5 of the Constitution.
14. Thus, the appellant’s contention before this court was that his attendances at court after 13 April 2015 could not be compelled by the police bail that had been granted on 18 March 2015.

Discussion

15. The right to personal liberty is one of the fundamental rights and freedoms protected by s 3 of the Constitution. Section 5(1)(f) of the Constitution provides
    • 5.(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say
      • (f) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands.
16. The CPC contains laws authorising the deprivation of liberty of a person reasonably suspected of committing an offence under the Penal Code.
17. The appellant was arrested by police without warrant and brought before Sergeant J Leguhavi, who charged him and released him on police bail. It was common ground that he was charged under s 76 of the CPC. He was released on police bail on condition that he appear at the Honiara Magistrates’ Court on 13 April 2015. In granting bail, police acted in accordance with ss 23, 106 and 107 of the CPC.
18. Section 76 of the CPC provides;
    • 76. (1) Proceedings may be instituted either by the making of a complaint or by the bringing before a Magistrate of a person who has been arrested without warrant.
    • (2) Any person who believes from a reasonable and probable cause that an offence has been committed may make a complaint thereof to a Magistrate having jurisdiction to cause such person to be brought before him.
    • (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:
    • 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.
    • (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
    • (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.
19. In this case, there was a formal charge signed by Sergeant Leguhavi. It was presented to the Magistrate and deemed to be a complaint within the meaning of the proviso to s 76(3) of the CPC. Court proceedings were initiated by the presentation of that complaint before the Magistrate. The appellant surrendered to the jurisdiction of the court and was then obliged to comply with any decision or orders of the court.
20. Exercising powers granted by s 191 of the CPC, the Magistrate adjourned the matter to a later date for mention. There appear to have been one or more subsequent adjournments before the application to have the proceeding dismissed in January 2016. The appellant was not committed to prison during adjournments. There is no material before the Court of Appeal showing whether he was allowed to be at large or released on bail.
21. The appellant’s attendances at court after 13 April 2015 were not, and could not be, compelled by the police bail which had been issued when he was charged. That bail had been issued in the exercise of an executive power that was exhausted upon the initiation of the judicial process. From that point it was the court itself that had power to grant bail on condition that he appear at the time and place to which the matter was adjourned. Magistrates frequently adopt the bail conditions previously imposed by the police and grant bail on the same conditions; on other occasions they impose new conditions. Be that as it may, release on bail would necessarily be pursuant to a fresh grant of bail by the court.
22. Section 77 of the CPC provides;
    • 77. (1) Upon receiving a complaint and having signed the charge in accordance with the provisions of section 76, the Magistrate may in his discretion issue either a summons or a warrant to compel the attendance of the accused person before a Magistrate’s Court having jurisdiction to inquire into or try the offence alleged to have been committed:
    • Provided that a warrant shall not be issued in the first instance unless the complaint has been made upon oath either by the complainant or by a witness or witnesses.
    • (2) The validity of any proceedings taken in pursuance of a complaint or charge shall not be affected either by any defect in the complaint or charge or by the fact that a summons or warrant was issued without complaint or charge.
    • (3) Any summons or warrant may be issued on a Sunday.
23. By s 77(1) the Magistrate who receives a complaint and signs a charge pursuant to s 76 has a discretion whether to issue process to compel the attendance of the accused person. If he decides to issue process, he may issue either a summons or a warrant.
24. Where the accused person is already before the court, as the appellant was, it is unnecessary for the Magistrate to issue process to compel his future attendance, because he is already obliged to comply with directions or orders for further attendance (including bail granted by the court) on the date to which the proceedings are adjourned. This court does not accept counsel for the appellant’s submission that a summons or warrant under s 77(1) of the CPC was necessary to compel the appellant’s further attendances at court.
25. Counsel for the appellant referred to s 78(2) of the CPC as illustrating that the issue of a summons is a necessary part of the court process. In circumstances specified in that section, a notice issued by police can be regarded as a summons issued under the provisions of the CPC. However, that section does not apply to offences under the Penal Code; it applies only to offences under the Traffic Act [cap. 131] and similar legislation. It is irrelevant in the present case where the appellant’s initial attendance before the court was compelled by the condition of his police bail, and his subsequent attendances were compelled by orders of the court in adjourning the matter.
26. We conclude that there was no want of due process in the way the appellant was required to attend the Magistrates’ Court after the complaint was presented to the Magistrate on 13 April 2015. He was not deprived of his liberty contrary to ss 3 and 5 of the Constitution.
27. The appeal is dismissed.

Goldsbrough
Ward JA
Wilson JA