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Regina v Hence [2012] SBHC 54; HCSI-CRC 255 of 2004 (30 April 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

REGINA

-v-

WILLIAM HENCE, RONNIE CAWA AND HAROLD KEKE

Date of Hearing: 16th April 2012.
Date of Judgment: 30th April 2012.

Mr. Naigulevu and Mr. Kelesi for the Crown.
Ms Spence for Ronnie Cawa.
Mr. Oshea for William Hence.
Mr. Holara for Harold Keke.

JUDGMENT

Introduction.

1. This is an application for permanent stay of criminal proceedings relating to various offences alleged to have been committed by the applicants between 6th June and 5th July 2003. The application was filed on 5th April 2012. The applicants are Ronnie Cawa, William Hence and Harold Keke.

2. The offences relate to the alleged abduction of 2 Melanesian Brothers and 5 Novices at Weather Coast, Guadalcanal Province. The 2 brothers were Brothers Peter Kesimu and Alfred Tabo and the 5 Novices were Andrew Holan, Wilfred Koete, Gabriel Gwali, Benjamin Kunu, Robert Odakohi.

3. William Hence is charged with 7 counts of abduction of the 2 Brothers and the 5 Novices. He is also charged with 1 count of assault causing actual bodily harm on Brother Alfred Tabo.

4. Ronny Cawa and Harold Keke are jointly charged with wrongful concealment and keeping in confinement of the 2 Brothers and the 5 Novices. Cawa has also been charged with assault causing actual bodily harm to Novice Andrew Holan.

5. These offences were alleged to have been committed at Mbiti and Tamanu villages in the Weather Coast area of Guadalcanal Province.

Background.

6. The background to these charges as appear from the case file is that on 7th June 2003, Novices Wilfred Koete and Andrew Holan travelled from Guluvua village in Weather Coast to Hoba village also in the Weather Coast area to pass a message to their Companion Leader. The 2 Novices were expected to return to Guluvua later that same day. They did not return as expected. It is alleged that upon arrival at Guluvua, they were instructed by members of the GLF to go to Kologaugau village. However, at Kologaugau, the 2 Novices were held at gun point, tied up and questioned by Harold Keke's men. Keke then instructed his men to take the 2 Novices to Mbiti where they were subjected to further questioning by Keke and the other defendants. After that, the 2 Novices were taken to Pite where they were further questioned and bitten by members of the GLF and then taken back to Mbiti.

7. On the 8th June 2003, Brothers Peter Kesimu and Alfred Tabo and Novices Robert Odakohi, Benjamin Kunu and Gabriel Gwali set out to Hoba in search of these 2 Novices. On arrival at Hoba, Brothers Kesimu and Tabo and Novices Odakohi, Kunu and Gwali were told that the 2 Novices were captured by Keke's men. Brother Tabo then wrote a letter and delivered the letter to GLF through a boy who later returned that same day and conveyed to Brother Tabo that Keke and his men had instructed that they wait at Hoba until the following day (9th June 2003).

8. In the morning of that following day, a group of men came to Hoba and instructed Brother Tabo and his men to walk to Kologaugau. As Brother Tabo and his men were leaving Hoba, another group of men appeared from the bush and held them at gun point and tied them up. They were questioned and beaten before they were ordered to continue on to Kologaugau. At Kologaugau, they were further subjected to questioning and beating. They were then taken to the GLF camp at Mbiti where they were re-united with the 2 missing Novices, Koete and Holan. On 18th June 2003, they were moved to Tamanu village. On 4th July 2003, they were moved back to Mbiti to attend a negotiation for their release held by Y Sato, Kamilo Teke and others who were assigned to negotiate their release. They were released in trenches. The first group consisting of Holan, Odakohi, Kunu and Gwali were released that day (4th July 2003) while the rest consisting of Tabo, Kesimu and Kunu were released on 23rd July 2003, again, through negotiations by Y Sato, Kamilo Teke and their team.

9. The applicants were arrested and on 9th September 2003 they were interviewed by the police in connection with the abduction, custody and assault on the Brothers and Novices. The applicants were subsequently charged on 3rd February 2004.

Preliminary Inquiry and laying of Information.

10. It seems that a preliminary inquiry (PI) relating to these charges was held sometime in 2004. It is assumed that a PI must have been held between 3rd February and 28th June 2004 because the initial Information relating to these charges was filed on 28th June 2004. Unfortunately, there are no court transcripts to show what actually happened at the PI stage. The only evidence that a PI was held is in the form of a copy of a Court Folder containing statements from potential witnesses in these cases. This Folder was only located about a week or so before the hearing of this application on the 16th April 2012. Despite the absence of court transcript, it is accepted by the defence that the Folder contained the PI documents.

Orders sought in the application.

11. This application was initially in two parts. The first part sought permanent stay of the criminal proceedings on the ground of lost of the PI documents. The second part sought permanent stay on the ground of delay.

12. When the application came on for hearing on the 16th April 2012, the defence withdrew the first part of the application (lost committal papers) for the reason that the committal papers have been located and therefore that ground no longer holds. The defence indicated that they would only be pursuing the second part the application based on delay.

13. Hence, in a nutshell, this application is for a permanent stay of these proceedings on the ground of delay.

The law on delay.

14. The legal principles governing permanent stay of criminal proceedings have more or less been settled both locally and in other common law jurisdictions. It is an exceptional remedy which can only be granted on exceptional grounds or under exceptional circumstances^[1]. As stated by Mason, CJ, in Jago v The District Court of New South Wales & Others^[2] ("Jago"), to justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing the trial judge can do in the conduct of the trial can relief against its unfair consequences.

15. The learned Chief Justice has referred to a number of matters which the court should take into account when deciding the question of stay on the ground of delay. These are, first, whether the conduct of the applicant has contributed to the delay; second, whether the applicant has pressed for expedition in a manner consistent with the anxiety and concern he is said to be suffering; third, whether the court resources are available for an expedited trial; and, fourth, whether the displacement of other trials is warranted.

16. The most notable ground upon which stay is often granted is abuse of process, a term which incorporates a number of situations including inordinate delay, improper purpose or a breach of promise not to prosecute^[3]. It also incorporates instances where the prosecution has manipulated or has misused the process of the court so as to deprive the accused of a protection under the law or to take unfair advantage of a technicality^[4]. In Fasi v Regina^[5], Kabui J, had this to say:

"... abuse of process can be raised on a number of grounds, namely, the prosecution is being mounted for an improper purpose, there is inordinate delay, or breach of promise or undertaking not to prosecute which has caused prejudice to the applicant or the conduct of the trial is such that there cannot be a fair trial of the applicant thus denying justice, etc."

17. That the court has inherent jurisdiction to stay proceedings where abuse of process occurs cannot be disputed^[6]. In Connelly v Director of Public Prosecutions^[7] ("Connelly"), Lord Morris said:

"There can be no doubt that a court which is endowed with a particular jurisdiction has [common law] powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process."

18. But in exercising that jurisdiction, the court must ensure that it is not seen as taking on the role of the Crown. The court's role is to try the case. The decision whether to bring a case or, having brought the case, whether to continue with it or to terminate it, is the role of the Crown. The court cannot interfere with that role unless the bringing, or the continuation, of the case amounts to abuse of process.

19. This principle has been described by Brooke LJ, in R (on the application of Ebrahim) v Feltham Magistrates Court & Another & Mouat v Director of Public prosecutions^[8] ("Feltham") as follows:

"The Crown is usually responsible for bringing prosecutions and, prima facie, it is the duty of a court to try persons who are charged before it with offences which it has power to try. None the less the courts retain an inherent jurisdiction to restrain what they perceive to be an abuse of their process. This power is of great constitutional importance and should be preserved. It is the policy of the courts, however, to ensure that criminal proceedings are not subject to unnecessary delays through collateral challenges, and in most cases any alleged unfairness can be cured in the trial process itself. We must therefore stress from the outset that this residual (and discretionary) power of any court to stay criminal proceedings as an abuse of its process is one which ought only to be employed in exceptional circumstances, whatever the reasons for invoking it."

20. Similarly, in Director of Public Prosecutions v Humphrys^[9] ("Humphrys") Lord Salmon said:

"A judge has not and should not appear to have any responsibility for the institution of prosecutions, nor has he any powers to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of process of the court and is oppressive and vexatious that the judge has the power to intervene."

21. The reason for this is obvious. The court must not been seen as condoning criminal conduct and malpractices by law enforcement agencies. To do so, would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the courts were to always stay proceedings, it would be seen as failing to protect the public from serious crime^[10].

22. In the present case, it is alleged that the PI was held, and the charges were laid, in 2004 yet no trial has been conducted until now. This, it is claimed, is abuse of process because there has been inordinate delay in prosecuting the charges. This delay, says counsel for the applicants, warrants a permanent stay of the criminal proceedings against the accuseds.

23. However, it is my view that delay per se is not a ground to stay proceedings. To justify a stay, the applicants must show on the balance of probabilities that the delay complained of has resulted, or will result, in them suffering serious prejudice to the extent that they will not receive a fair trial^[11]. Evidence must be produced to show how the applicants have been, or will be, seriously prejudiced by the continuation of the proceedings.

The delay.

24. The initial information filed against the applicants in this case was filed on 28th June 2004 and, as earlier stated, although there is no transcript to show that a preliminary inquiry was conducted, it seems that both parties have accepted that a preliminary inquiry was conducted between 3rd February and 28th June 2004. Since then, nothing has been done until about 16th April 2012 when the case was listed for trial. From 28th June 2004 to 16th April 2012 is approximately 7 years and 9 months which, no doubt, is quite a substantial length of time.

Reasons for the delay.

25. It is not disputed that the reason for the delay was the loss or misplacement of the PI documents. There is also no dispute that the loss or misplacement of the PI documents was due to no fault on the part of either the prosecution or the defence. The fault lies squarely on the shoulders of the Magistrates Court and the High Court registries.

26. Affidavits have been sworn by Ricky Iomea and David Kausimae on behalf of the Crown stating various other reasons for the delay. The substance of these affidavits is that these are tension-related charges and that there have also been many other tension-related offences which involved these same three accuseds. Some of these other offences include the murder of Father Augustine Geve in respect of which Keke and Cawa were convicted and sentenced to life imprisonment; the murder of the ten Kwaio men in respect of which Keke was acquitted but Cawa convicted and sentenced to life imprisonment; the murder of McSweeny in respect of which Keke and Cawa are still awaiting judgment; the murder of 6 Melanesian Brothers in respect of which Cawa was convicted and sentenced to another term of life imprisonment; and the murder of Brother Nathaniel Sado in respect of which Cawa was convicted and sentenced to a further life imprisonment.

27. Apart from these cases, there were many other tension-related cases not involving these accused which the DPP's office had also been dealing with during the post tension period even up to the present. It is said that these were complicated cases and that the DPP's office was not sufficiently resourced to properly manage them. It is claimed that this has contributed to the delay in prosecuting these charges which are the subject of this application. What the Crown is saying is that DPP's office did not have the necessary resources to expedite the trial of these charges.

28. Affidavits have also been filed by Ronald Dive and Ronny Cawa in support of the present application. In his affidavit, Mr. Dive merely outlined his attempts to obtain PI documents from the Central Magistrates Court and the High Court in relation to these charges during the month of March 2012 but without success. Mr. Cawa, on the other hand, had simply stated in his affidavit that he had no knowledge of any committal proceedings being held at the Magistrates Court or at the High Court in relation to the charges.

29. Unfortunately, the affidavits by Mr. Dive and Mr. Cawa have fallen short of disclosing what prejudices the accuseds had suffered, or would suffer, as a result of the delay in prosecuting these charges. As I have said earlier, delay per se is not sufficient to stay proceedings. The applicants must show on the balance of probabilities that the delay complained of has resulted, or will result, in the applicants suffering serious prejudice to the extent that their trial will not be fair if it is to be proceeded with.

30. Furthermore, there is also no evidence to show that the applicants have pressed for expedition of their trial during the 7 years and 9 months delay. It was only at the mention of the case on the 4th April 2012 that the defence gave the indication that they will seek a permanent stay of the criminal charges.

31. Having considered the material before the court and upon hearing counsel for both the Crown and the applicants, I am not satisfied that the applicants have suffered, or will suffer, serious prejudice as a result of the delay in prosecuting this case.

Order.

32. I therefore refuse the application for permanent stay of these criminal proceedings against the applicants.

33. Order accordingly.

THE COURT

^[1] Connelly v DPP [1964] AC 1254; Takiveikata v State [2005] FJHC 315.
^[2] (1989) 168 CLR 23.
^[3] Fasi v R [2005] SBHC 76.
^[4] Attorney General's Reference No. 1 of 1990 (1992) QB 630.
^[5] [2005] SBHC 76.
^[6] Filia v R Crim. Case No. 311 of 2003.
^[7] [1964] 2 All ER 401 at 409.
^[8] [2001] EWHC Admin 130; [2001] 1 All ER 831 at 834.
^[9] Ibid
^[10] R v Latif & Shahzad (1996) 2 CrAppR 92.
^[11] Attorney General Referance No. 2 of 2001 [2003] UKHL 68.