HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 253 of 2001

REGINA

–V-

SOLO SADE

HIGH COURT OF SOLOMON ISLANDS
(PALMER ACJ)

Review Judgment: 19th September 2001

PALMER ACJ: The file on Criminal Case Number 162/2001/CMC, Regina v. Solo Sade was called for review pursuant to section 47(1) of the Magistrates’ Courts Act [Cap. 20]. The Defendant in that case had been charged with the offence of unlawful wounding contrary to section 229 of the Penal Code [Cap. 26]. He was arraigned on 11th May 2001 and entered a not guilty plea. A trial date was then fixed for 8th June 2001. Defendant was bailed on own recognition for $800-00, but failed to appear. A warrant of arrest was issued and case adjourned for mention for 2nd July 2001. On said date the Police Prosecutor Sgt Ora applied to have the charge withdrawn under section 190(2)(b)(ii) of the Criminal Procedure Code [Cap. 7] (“CPC”). Two reasons were given for the application; (i) lack of transport; (ii) un-cooperativeness of the Defendant and evasive. The presiding Magistrate accepted the application and discharged the Defendant. 

Section 190 of the CPC deals with withdrawals of complaints. Subsection 190(1) provides:

“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.”

Subsection 190(2)(b)(ii) provides:

“On any withdrawal as aforesaid – 

(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 – 

(ii) an order discharging the accused.”

There have been a number of cases in this jurisdiction dealing with withdrawals under section 190. Two of them are reported in the law reports, Director of Public Prosecutions v. Clement Tom (1988/89) SILR 118 (“Tom’s Case”), and Director of Public Prosecutions v. Dao and Dao (1988/89) SILR 142 (“Dao’s Case”). In Tom’s Case, the accused had been charged with using abusive words in public and pleaded guilty. During the outline of the facts the Magistrate intervened to ask if the place where the offence was alleged to have occurred was a public place. On being told it was not, the Magistrate asked the police prosecutor whether he wanted to withdraw the charge. The prosecutor consented but asked that the accused be discharged under what was then section 189(2)(b)(ii) of the CPC. Instead the Magistrate acquitted the accused under section 189(2)(b)(i). The Director of Public Prosecutions (“DPP”) appealed. In his judgment, page 119, Ward CJ states:

“Whenever a prosecutor seeks to withdraw a charge under section 189 he requires the consent of the court. Normally that will be given but only after enquiry by the court as to the reasons for the withdrawal. If there is any doubt about the propriety of the application, the court should refuse and require the prosecution to proceed. If necessary, the court can require evidence of the reasons.

Where the magistrate is satisfied there should be withdrawal and it is before the accused has been called upon to make his defence, he must decide the appropriate order under subsection 2(b). Where there is no evidence or the wrong charge has been laid or the wrong person charged, the order should be one of acquittal. In all other cases, the appropriate order is one of discharge under 2(b)(ii).”

In Dao’s Case, the Respondents had been charged with improperly revealing the contents of an examination contrary to section 28(c) of the Education Act. They pleaded not guilty and the case was listed for trial for 6 October 1989. At the hearing the prosecutor applied for an adjournment on the grounds that two key prosecution witnesses were not available and that he needed further to investigate five other witnesses “to fill in the gaps”. The Magistrate refused the application. The Prosecutor then applied to have the charge withdrawn under section 189(2)(b)(ii) to enable him bring the case back to court when the required evidence became available. The Magistrate granted this but acquitted the Respondents instead under section 189(2)(b)(i). The DPP appealed. 

In his judgment Ward CJ held that the withdrawal being sought was for improper reasons and ought to have been refused by the Magistrate.

In this case, the accused had absconded bail and was under a warrant of arrest. The proper thing to do would have been to apply to have the warrant withdrawn first. That had not been done. It was improper therefore for the prosecutor to apply to have the complaint withdrawn when a warrant was still outstanding against the accused. Instead of one matter outstanding against the accused, there were now two matters outstanding. The Magistrate ought to have addressed the outstanding warrant of arrest before proceeding on to withdrawal of the complaint. In the circumstances, I find that the withdrawal had been made for improper reasons. 

In any event, I find the reasons (lack of transport and un-cooperativeness of the accused) given to be inadequate to justify an application for withdrawal. If there are no police vehicles, there are taxis available and if taxis are too expensive there are public buses to use. If all else fails walk. If an accused is un-cooperative then there are avenues available to police officers to deal with such persons. I don’t really see how such excuse can be accepted when the accused is under a warrant of arrest anyway. If an accused is evasive, then it is part of police work to locate and arrest him. Having said that, I accept police work is not easy and that there are real practical difficulties that the police force face. There are manpower shortages as well as shortages in equipment and facilities compounded by financial constraints or more accurately the lack of it. It is not easy but one has to do the best he can in the circumstances. The police now have vehicles anyway and so the reasons given are no longer valid. 

The order of consent of the Magistrate granting withdrawal is hereby set aside and the case to be restored to the court’s list for mention and processed in the normal way.

The Court.