IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

EDDIE AITOREA

Date of hearing: 6 April 2011
Date of Judgment: 7 April 2011 

Mr. R. Iomea for appellant
Mr. E. Cade for respondent

DECISION

Apaniai, PJ:

1.	This is an appeal by the Crown under section 283 (1) of the Criminal Procedure Code (Cap. 7) ("CPC") against a decision of the Central Magistrate Court dated the 8th February 2011 dismissing a charge made against the Respondent, Eddie Aitorea, for want of prosecution.

2.	The Respondent was charged with one count of store breaking contrary to section 300 (a) of the Penal Code (cap. 26). It was alleged that sometime between 31st May and 1st June 2010 the Respondent broke and entered a shop known as KK Mart Shop owned by Lucy Li in Honiara and stole goods from that shop. He was charged on 16th July 2010.

3.	The case first came before the Magistrate Court on the 26th July 2010 but was adjourned because the Respondent had failed to appear. 

4.	On 19th November 2010, the Respondent appeared in court after being arrested on a further, and similar, charge of store breaking. In relation to that second charge, it was alleged that the Respondent, on the 18th October 2010, broke and entered a shop owned by Vivian Liu in Honiara and stole goods from that shop. He was charged on 5th November 2010 and appeared in court on that date. At that hearing, the court adjourned the case for further hearing on 29th November 2010 with directions that the Respondent finds a lawyer to represent him.

5.	On 28th November 2010, the case came up in court for mention. It appears that the case was adjourned again to the 17th December 2010. There is no indication as to why the matter was adjourned to the 17th December.

6.	On 17th December 2010, the matter came on again for hearing. At that hearing, the court ordered disclosure of documents on the public solicitor who was engaged by the Respondent. That same day, documents were disclosed on the public solicitor. The matter was further adjourned to 14th January 2011.

7.	On 14th January 2011, the matter came up for hearing at which a pre-trial conference was set for the 28th January 2011. At the pre-trial conference on 28th January 2011, trial dates were set down for the 8th, 9th and 10th February 2011.

8.	On the 8th February 2011, the matter was called for trial. However, the prosecution was not ready and, according to the Appellant, the prosecution asked for adjournment to the next day so that prosecution witnesses could be informed of the trial. The reason given for non-readiness was that the file was previously handled by a Mr. Williams but that on, or immediately before, the morning of the 8th February 2011, the file was handed to constable Charlton Metapo to prosecute. Constable Metapo was dealing with another case and was not ready to deal with the Respondent's case. According to constable Metopa, there were also conflicting docket notes on file - one saying that trial would be on 8th February 2011 and the other saying that the trial would be on the 8th March 2011.

9.	Constable Metopa came to the Magistrate Court in the morning of the 8th February 2011 unprepared for trial on that date because the prosecution witnesses were not informed of the trial listed for that morning. In his sworn statement in support of the appeal, he said that he asked that the case be adjourned to the next day to give time for the Crown to advise witnesses.

10.	The Magistrate refused to adjourn saying that the prosecution had had ten days to prepare. He dismissed case for want of prosecution.

11.	There are two grounds of appeal in this matter. These are, first, the magistrate was wrong in not granting an adjournment and, second, that the Magistrate was wrong in dismissing the charges for want of prosecution.

12.	Has the Magistrate erred in not granting an adjournment?

13.	Adjournment of hearings is a matter for the discretion of the court and it is for the person challenging the exercise of that discretion to show that it has been exercised wrongly. Discretion is wrongly exercised where the court had acted upon a wrong principle or has taken into account extraneous or irrelevant matters or has mistaken the facts or has failed to take into account matters which should have been taken into consideration. The list is not exhaustive. As stated by Palmer, CJ, in R v Kokili:

"A court is obliged to carefully balance the interests of justice, the seriousness of the case, the public interest at play in bringing accused persons to trial, the costs and time expended in investigations, the interest of the victim in seeing that the matter is brought to trial or heard in court, as well as balancing the interests of an accused, before making any decision."

14.	In other words, the court must do a balancing exercise by weighing the competing public interests in ensuring, on the one hand, that those who are guilty are appropriately punished and in ensuring, on the other hand, that accused persons are given speedy trials as guaranteed under the constitution and those not guilty are set free without further delay.

15.	In the present case, the court transcript shows that the Magistrate had refused to grant further adjournment for the reason that a trial date had been set and the prosecution had had sufficient time (ten days) to get themselves ready. They were not ready and so he dismissed the case. He said they failed to prosecute the case.

16.	Clearly, the Magistrate had not sufficiently weighed the competing public interests in this matter. He had not taken into account the seriousness of the offence with which the Respondent was charged. He had also misconstrued the law relating to adjournments and dismissal of cases as prescribed in sections 187, 189 and 191 of the CPC. Section 187 gives the Magistrate a discretion to dismiss a charge or adjourn a case if proper reasons exist for doing so. Section 191 gives the Magistrate a general discretion to adjourn a matter to another date and time provided that such adjournment must not be more than 30 days or, if the prisoner is committed to prison, for more than 15 days. Read together, sections 187 and 191 give the Magistrate discretion to adjourn a case for "proper reasons". He had also failed to consider that the Respondent would not be prejudiced even if the case proceeds to trial. His decision to dismiss the case seems to be based solely on the ground that a trial date had been fixed and the Appellant was not ready by that date. In other words, there were other relevant matters which he should have taken into account but which he had not taken into account.

17.	I am satisfied this is a case where the Magistrate should have exercised his discretion in favour of granting an adjournment. He had not done so and therefore had erred in law. I allow the appeal on the first ground of appeal.

18.	Has the Magistrate erred in dismissing the case?

19.	Apart from the general power of a magistrate to dismiss a charge which has not been proved to the required standard, the statutory powers of a magistrate to dismiss charges are provided for under sections 187 (1) and 192 (1) of the CPC. Section 187 (1) gives a magistrate a discretion to dismiss a charge where the complainant fails to appear on the date listed for the hearing of the case. That discretion will not be so exercised if "proper reason" exists. Similarly, section 192 gives the magistrate a discretion to dismiss a charge where a complainant fails to appear.

20.	However, under section 189 of the CPC, where both parties appear, unless he decides to adjourn it, the magistrate is obliged to proceed to hear the case. In the present case, both parties were present. The Magistrate refused to adjourn the case. Having refused to adjourn, he should have called on the prosecution to present its case. He did not. Instead he dismissed the case. In that regard, he has erred. I allow the appeal also on the second ground.

21.	I am therefore satisfied that the appeal should be allowed, the orders of the Magistrate to dismiss the charge is set aside and the matter is referred back to the Magistrate Court for a new trial date to be fixed for the hearing of the charge.

22. Orders of the court are:

[1] The appeal is allowed,

[2] The orders of the Magistrate Court dated 8th February 2011 dismissing the charge is quashed,

[3] The matter is remitted to the Magistrate Court (Honiara) for trial,

[4] Matter to be re-listed for mention and/or directions at 9.30am on Monday 18th April 2011.

THE COURT

Justice James Apaniai
Puisne Judge