CRC, 45, 2000.HC

IN THE HIGH COURT OF SOLOMON ISLANDS 

Criminal Case No.45 of 2000

REGINA

V

ALWYN SALAU & SILAS ATU

High Court of Solomon Islands
(Lungole-Awich, J)

Criminal Case No: 45 of 2000

Hearing: 29 September 2000
Judgment: 5 October 2000

J Faga for the Crown
P Watts for the 1st Accused
M Samuel for the 2nd Accused

JUDGMENT

(LUNGOLE-A WICH, J): Learned Counsel Mr J Faga, representing the learned Director of Public Prosecutions, Mr F Mwanesalua, has applied for consent of the Court to have withdrawn the 4 charges of obtaining money by false pretence, charges preferred under s.308 (a) of the Penal Code, Chapter 26 in the Statute Laws of Solomon Islands. Mr Faga has told the Court that his application is made under s.190 (2) (b) (i) of the Criminal Procedure Code, Chapter 7 of the Statute Laws. When I asked him why he would not act under s.68 and file a nolle prosequi under the hand of the DPP, his reply was that his instruction was to have the charges against the accused withdrawn completely without the consequence of possibly recharging the accused in future, it was desired to have the accused acquitted. Mr Faga has informed the Court that he was acting under instruction from the DPP who personally had carriage of the case, but was on unpaid leave following military-like events in Honiara. Both accused were committed as long ago as 2.2.2000 to the High Court for trial. Normally charges of obtaining by false pretence are brought at Magistrates’ courts. This case was committed to the High Court because it was one of a series alleged to be part of a systematic scam involving millions of government money. The DPP may have considered it to be a complex case. 

If the DPP instructed that the application be made under s.190 (2) (b) (i) of the Criminal Procedure Code, then he was mistaken. S.190 is in Part VI of the Criminal Procedure Code, headed: Procedure in Trial before Magistrates’ Courts. The section states: 

“190. (1) The prosecutor may with the consent of the court at any time before a final order is passed in any case under this Part withdraw the complaint.

(2) On any withdrawal as aforesaid-

(a) where the withdrawal is made after the accused person is called upon to make his defence, the court shall acquit the accused;

(b) where the withdrawal is made before the accused person is called upon to make his defence, the court shall subject to the provisions of section 197 in its discretion make one or other of the following orders -

(i) an order acquitting the accused;

(ii) an order discharging the accused.

(3) An order discharging the accused under paragraph (b) (ii) of subsection (2) shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts.”

This Court is not a magistrates’ court and no amount of over-stretching the meaning of s.190 can change that. Mr Faga cited HC CRC No. 13 of 1998, R-v-Gedley Joel, as precedent in this jurisdiction; he did not hand in a copy of the judgment. I looked up the case file. It is correct that in the case at the High Court, the prosecution said that he made the application to withdraw the case, “under s.190 of the Criminal Procedure Code.” The charge in the case was one of rape, an offence in ss.136 and 137 of the Penal Code. The reason given was that the complainant, an expatriate, had left the country and did not leave an address of contact; the police in Australia had failed to trace her. The Learned Chief Justice then made the order: “Case withdrawn. Accused acquitted.” I would have thought the reason for the application was a perfect reason for the DPP to enter a nolle prosequi instead of applying for withdrawal. The question may be asked, suppose the complainant turns up?

I was minded to be persuaded by the case precedent, R -v- Gedley Joel, but in the end I decided to depart from it because it was not possible to identify a ratio decidendi in the brief note made by the learned Chief Justice. Moreover, in the case, unlike in the present one at this stage, a plea had been taken and the accused had pleaded not guilty. But like in the present case, the prosecuting counsel informed the Court that it was clear that the prosecution would not be able to locate the key witness.

In my view the Legislature deliberately excluded application at the High Court for consent of the Court to have charges withdrawn in terms stated in s.190 of the Criminal Procedure Code. Instead the Legislature provided a nolle prosequi under s.68 which enables the DPP to discontinue a case at the High Court as well as at any subordinate court, but with the liberty to recharge the accused. S.68 is in Part IV of the Act, headed: Provisions Relating to All Criminal Investigations and Proceedings. The section states:

“68. (1) In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Director of Public Prosecutions may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Crown intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognisances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.

(2) If the accused shall not be before the court when such nolle prosequi is entered, the registrar or clerk of such court shall forthwith cause notice in writing of the entry of such nolle prosequi to be given to the officer in charge of the prison in which such accused may be detained, and also, if the accused person has·been committed for trial, to the Magistrate by whom he was so committed, and such Magistrate shall forthwith cause a similar notice in writing to be given to any witness bound over to prosecute and give evidence and to their sureties (if any) and also the accused and his sureties in case he shall have been admitted to bail.”

There may be good reason why the Legislature chose a nolle prosequi instead of withdrawal, after all, for a criminal charge to be tried at the High Court, it would normally have been assessed by a magistrates’ court and found to have good enough evidence. A magistrate assesses the evidence at the preliminary stage of committal for trial. If he is not satisfied he does not commit the accused to the High Court for trial- see s.219 of the Criminal Procedure Code.

I inquired from all the 3 counsel in Court whether in their experience it is frequent that accused have been recharged after the DPP had entered a nolle prosequi. Learned counsel Ms Samuel, who has extensive experience in court case work, informed the Court that she had not known it to happen in this jurisdiction. That is also my experience of over 6 years in this jurisdiction and from other jurisdictions. It would be rare indeed although possible since it is authorised in s.68.

Given the difficulty posed by s.190, I asked Mr Faga whether he had considered having the accused arraigned and pleas taken from them after which Mr Faga would offer evidence or offer, “no evidence.” He said that he had not considered that. My ruling is precisely that: I direct that the accused go to the dock, they will be asked to plead to the charges against them. It will be up to the learned prosecuting counsel to offer evidence or to, “offer no evidence” or words to that effect. Should the prosecution offer no evidence, the Court will be compelled to acquit the accused of the charges and discharge them; it will not be possible to recharge the accused on the same facts.

After reading the above ruling in Court and when I was ready to have the charges read and put to the accused, I noticed that there was no information on the case file. There was simply notes of the 4 charges even though stated correctly in the form of Statement of Offence and Particulars of Offence. The notes were merely part of the record of the proceeding before the Magistrates’ Court at committal to the High Court stage. I adjourned the case to enable the prosecution to file proper information following committal of the accused, as required by s.233 of the Criminal Procedure Code. An accused, though committed to the High Court for trial, is not charged at the High Court as yet until information or indictment signed by the DPP has been filed at the High Court in compliance with s.233 of the Criminal Procedure Code.

When the Court resumed sitting in the afternoon the prosecution had filed the necessary information charging the two accused jointly in 2 counts instead of 4 as was the case in the Magistrates Court. The charges were of obtaining money by false pretence under s.308 (a) of the Penal Code. As far as this Court, the High Court, is concerned, that is the first time the accused have been charged as required by s.233 following their committal by the magistrates’ court. The two counts appeared regular in the statements of offence and in the particulars of offence. I put the charges to each of the accused who individually pleaded not guilty to each of the counts. I called upon the prosecution to lead evidence to prove the charges. Mr Faga stated that he would not lead evidence because it was not possible to trace witnesses in the political circumstances prevailing. Witnesses had left Honiara, and the Prosecution Section of the Police was no longer in existence; it was that Section of the Police that the DPP relied on to trace witnesses. Another reason that Mr Faga gave was that the DPP who had conduct of the case was on unpaid leave and was unlikely to resume duty in the near future; Mr Faga had instruction not to proceed with the case in view of the impossibility in tracing witnesses. Ms Samuel for the second accused and Mr Watts for the first accused welcomed the instruction to Mr Faga.

Given what Mr Faga said, the only course open to the Court was to acquit the accused on both counts of obtaining money by false pretence under s.308 (a) of the Penal Code. I accordingly acquit the accused on both counts and discharge them. They will not be charged with the same particulars of offence stated in the formation, the subject of this case.

Dated this Thursday the 5th day of October 2000
At the High Court 
Honiara

Sam Lungole-Awich
Judge