HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 17 of 1994

REGINA

-v-

ELIZAH D. MUALA

High Court of Solomon Islands
(Muria CJ.)

Hearing: 31 May 1994
Judgment: 6 June 1994

J. Faga for Appellant
F. Waleilia for Respondent

MURIA CJ: This is an appeal by the Director of Public Prosecutions against the Magistrate Court's decision dismissing the charge and discharging the respondent. The ground of appeal is that the learned Magistrate erred in law and in fact to dismiss the charge and discharge the respondent for want of prosecution in that the learned Magistrate did not take into account the reasons which should have caused him to adjourn the case or at least potspone it until later on.

The accused had been charged with the offence of larceny by servant. It was alleged that as a servant of Solomon Islands Consumer Co-operative Society Ltd he stole the sum of $8,204.53 belonging to his employer. The date was fixed for the case to come before the Magistrate Court at 8.00 am on 28 February 1994.

On 28 February 1994, the respondent appeared in Court but not the appellant. The learned Magistrate having heard the application by Counsel for the respondent dismissed the charge and discharged the respondent under section 186 Criminal Procedure Code.

In his affidavit filed on 11 March 1994 in support of the appeal, Inspector Kari deposed that he was in Court when the learned Magistrate called the case and that having been asked by the learned Magistrate if he had carriage of the case, he said that he did not and that it was the DPP who had charge of the case. Inspector Kari further stated that the DPP was at the High Court.

Mr. Faga who was Counsel for the appellant both in the Magistrate Court and in this appeal has now told this Court that he was counsel for the prosecution in this case in the Magistrate Court and that he was in the Magistrate Court on 28 February 1994 although he was busy doing some photocopying of the facts in the case when it was called by the learned Magistrate in Court. Mr. Faga further told this Court that when he went into the Court, he was notified by Inspector Kari that the case had been dismissed by the Magistrate for non-attendance by the prosecution.

In support of the grounds of appeal, Mr. Faga submitted that the learned Magistrate, having been told in Court by Inspector Kari that the DPP had carriage of the case, ought to have considered it proper to adjourn the case or at least put it off until counsel for the prosecution appeared. It is further urged by Counsel that unless the prosecution appeared, the leanred Magistrate would not know what the prosecution intended to do with the case and so, it is said, the learned Magistrate should have adjourned or postponed the case until the prosecutor appeared to tell the Court what he wanted to do with the case. Also Counsel argued that the charge was serious and so, that should have caused the learned Magistrate also to consider it proper to adjourn the case or postpone it until the prosecutor appeared.

Mr. Waleilia who was also acting for respondent in the Court below, not surprisingly, opposed the appeal. He contented that the learned Magistrate was right to dismiss the charge in the exercise of his powers under section 186 of the Criminal Procedure Code.

In respect of the events that occurred on the morning of 28 February 1994 at the Magistrate Court, Mr. Waleilia swore and filed an affidavit. He deposed that he was acting for the respondent and attended the Magistrate Court that morning at about 7.50 am with his client and at 8.30 am he and his client entered the Court Room No. 1 where their case was fixed to be heard.

Mr. Waleilia further deposed that at 9.10 am or thereabout the learned Magistrate was already in Court dealing with other cases and when he finished dealing with those matters, his client's case was called. By then it was after 9.30 am. When the case was called there was no appearance for the prosecution. It was then that Mr. Waleilia applied to have the case dismissed and the learned Magistrate granted the application.

The power to dismiss a charge when the prosecution fails to appear at the hearing of the charge is provided for under s. 186(1) of the CPC. That section provides:

"(1) If, in any case which a Magistrate's Court has jurisidiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summjons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his advocate, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit"

(2) The expression 'advocate' in this section and in sections 188 and 190 shall in relation to a complaint include a public prosecutor."

It will be observed that subsection (1) contains a language of a mandatory nature. The reason for such language to be used is not difficult to see since an accused person does not come to court on his own initiative or at the court's instigation. He is brought before the Court as a result of a complaint made against him. In consequence of that complaint, the accused is summoned to appear in Court and if he appears in Court at the time, place and date fixed for the hearing and determination of that complaint and the complainant does not appear, then it is only a matter of good sense and justice that the complaint be thrown out and the accused be given his liberty and allowed to go free.

Mr. Faga relied on the second half of the subsection to argue that the words "unless for some reason it shall think it proper to adjourn the hearing" ought to have been taken by the learned Magistrate as giving him the power to exercise his discretion not to dismiss the charge in the interest of justice bearing in mind the seriouness of the charge and that it was the first time the case came before the Court. However the question of the seriousness of the charge and number of occasions the charge was brought before the Court cannot be seriously argued that the learned Magistrate did not have them in contemplation at the time he decided to dismiss the charge. Those matters were certainly before the learned Magistrate.

The words "unless for some reason" in section 186 must be given their natural meaning and as such they simply mean unless there is some reason. Under that section therefore, the Court should dismiss a charge brought against an accused if the complainant does not appear unless there are some reason why the Court thinks it fit not to do so and instead to adjourn the matter.

The words mentioned also bear an additional connotation. They connote the notion that the Court must be told of the "reason" so as to be able to decide whether to adjourn the matter or not when the charge is called on and the accused appears but not the prosecution. If the "reason" is not before the Court, there is nothing before the Court to see it fit to adjourn the case and the only course open to the Court to take is to dismiss the charge.

Mr. Faga's argument that the Court should adjourn the case in order to give the prosecution the chance to explain what it decided to do with the case cannot be accepted. The Court cannot wait for the prosecution while it goes about hunting for 'some reason' to ask for an adjournment of a charge. Section 186 CPC requires the prosecution to furnish the Court with "some reason" as to why the case should be adjourned when it is called on and the accused appears in obedience to that charge. That reason must be placed before the Court at the hearing or furnished with the Court before the hearing for its consideration at the time of hearing. It is after considering the reason furnished for the adjournment that the Court then proceeds to adjourn the case. It cannot be the other way around as Mr. Faga suggested.

Further, the appellant must demonstrate that the learned Magistrate exercised his power under section186 Criminal Proceudre Code errorneously. With respect, there is nothing on the record nor in the submission by Counsel for the appellant which show any defect in the exercise by the learned Magistrate of his power under section 186 in this case to warrant interference by this Court.

For all those reasons the appeal is dismissed.

(G.J.B. Muria)
CHIEF JUSTICE