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

Civil Jurisdiction

WILLIAM HENCE, RONNIE CAWA AND HAROLD KEKE

v

REGINA

Date of hearing: 29th June 2012.

Date of Judgment: 9th August 2012.

Mr. Horala for Harold Keke,
Ms Spence for Ronnie Cawa, and
Mr. O'shea for William Hence.
Mr. Naigulevu for the Crown.

RULING

Introduction.

1.	This is an application by the applicants, William Hence, Ronnie Cawa and Harold Keke, by notice of motion filed on the 11th May 2012, seeking a declaration that the information filed against them on the 3rd April 2012 ("2012 information") is null and void.

2.	The original information ("2004 information") filed against the applicants in connection with the offences alleged therein was filed on 28th June 2004. The 2012 information was filed on 3rd April 2012. However, both counsels agree that the 2012 information is an amendment of the 2004 information. 

3.	What this means is that this application is a challenge to the validity of the 2004 information, for where an information is amended, the information is to be treated, for the purposes of all proceedings connected therewith, as having been filed in the amended form. The 2012 information is therefore the 2004 information in an amended form.

2004 information: 

4.	The 2004 information contained some 16 counts altogether of which 9 were against William Hence and 7 were against Ronnie Cawa and Harold Keke jointly.

5.	Out of the 9 charges against William Hence, 7 of them (that is counts 1, 2, 4, 5, 6, 7 and 8) were abduction charges under section 250 of the Penal Code while 2 of them (that is counts 3 and 9) were assault charges under section 245 of the Penal Code. The 7 charges against Ronnie Cawa and Harold Keke (contained in counts 10 to 16) were all wrongful concealment charges under section 252 of the Penal Code.

2012 amendment:

6.	However, the 2012 information has made a number of changes to counts 3, 5, 6, 7, 8, and 14 of the 2004 information. The rest of the counts in the 2004 information have not been altered and have been included verbatim in the 2012 information.

7.	In count 3 of the 2004 information (assault causing actual bodily harm to Andrew Holan), William Hence was the accused person. In the 2012 information, it was Ronnie Cawa who was charged with that offence. This means that in the 2012 information there are now only 8 charges against William Hence (that is, counts 1, 2, 4, 5, 6, 7, 8 and 9), 1 against Ronnie Cawa individually (that is, count 3) and 7 against Ronnie Cawa and Harold Keke jointly (that is counts 10, 11, 12, 13, 14, 15 and 16).

8.	As for counts 5, 6, 7 and 8 of the 2004 information, the offences were alleged to have been committed "at Kologaugau" while in the 2012 information, the offences are alleged to have been committed "at an unknown place between Hoba and Kologaugau".

9.	As for count 14, the 2004 information alleged that the offence was committed between 6th June and "24th" July 2003 while in the 2012 information, the offence was alleged to have been committed between 6th June and "5th" July 2003. All these charges are the subject of this application.

10.	The prosecution says that these amendments were based on instructions recently obtained from prosecution witnesses and not on the basis of the witness statements and depositions obtained during the PI stage.

11.	There is no suggestion that the Director of Public Prosecutions ("DPP") has no powers to amend the 2004 information. The responsibility for the correctness of an indictment lies squarely on the shoulders of the prosecutor and no prosecutor should open a criminal case without being satisfied that the indictment is correct. If the prosecutor thinks the indictment is incorrect, it is his responsibility to correct it by way of an application to have it amended.

12.	Filing an information and amending an information are two separate things. Section 233(1) of the Criminal Procedure Code ("CPC") is concerned with the filing of an information. It has nothing to do with the amendment of an information. It is only when filing an information that the requirements of section 233(1) need to be satisfied, not when amending the information.

13.	It would not be correct, in my view, to suggest that an amendment must be based on the contents of the witness statements and depositions received from the Magistrate Court. A prosecutor is entitled to apply to have the indictment amended at any time before trial, or even during trial, as long as such amendment does not cause any injustice to the accused person. The need for such an amendment may arise in various ways, for instance, the prosecutor has just received from prosecution witnesses fresh instructions which are different from those contained in the witness statements or depositions obtained during the PI stage and on the basis of which the original information was filed. Where such application is made, it would only be in very exceptional circumstances that the court would not allow such an amendment to be made.

14.	However, as I understand, the applicants are not protesting against the 2012 amendment. Their case is simply that the DPP has no power to lay these charges and that he has acted ultra vires his powers under section 233(1) of the CPC in filing the 2004 information. They assert that no PI was ever held in regards to the charges and, therefore, no authenticated copies of the statements and depositions were before the DPP upon which he could have formed the opinion that the case was one which should be tried upon information before the High Court as required by section 233(1).

Procedure for committal of accused persons for trial to the High Court: 

15.	To appreciate this application, it is necessary to briefly outline the procedure applicable to committal of accused persons for trial before the High Court. They are set out in Part VII of the CPC.

16.	It begins with section 210 of the CPC which gives Magistrates the power to commit accused persons for trial to the High Court.

17.	Under section 211, the power to commit a person for trial to the High Court arises where the offence is not triable by the Magistrate Court or where the Magistrate is of the opinion that the High Court ought to try the offence or where the prosecutor makes an application that the High Court tries the offence.

18.	However, before committing a person for trial to the High Court, the Magistrate is obliged to hold a preliminary inquiry ("PI") in regards to the charge or charges. Such inquiry can be by way of a short form PI under section 211 or by way of a long form PI under section 212.

Short form PI:

19.	In a short form PI, the Magistrate reads and explains the charge to the accused person, explains to him that he will have an opportunity later to make a statement if he so wishes and informs him of the purpose of the inquiry, that is, to determine whether there is a sufficient case to refer his trial to the High Court. Having read the charge, the Magistrate then asks the accused person if he wants to plead to the charge and to record such plea, if any. Here, the accused person is at liberty either to enter a plea or to reserve his plea for the trial at the High Court.

20.	The Magistrate then asks the prosecutor to tender all the statements of witnesses who would be called as witnesses at the High Court trial and all exhibits, if any, which is intended to be produced at the High Court trial and, if the accused is not represented by a solicitor, to read the said witness statements in court.

21.	If, after considering the statements as read by the prosecutor, including any exhibits tendered, the Magistrate is of the opinion that there is sufficient ground to refer the case for trial before the High Court, he shall ask the accused person whether he wishes to make a statement or not. If the accused person decides to make a statement, he should also be asked whether or not to make the statement on oath. Any statement made by the accused person on oath shall be recorded and signed by both the Magistrate and the accused person and shall form part of the evidence against, or in favour of, the accused person.

Long form PI:

22.	In a long form PI, the Magistrate follows the same procedure as in a short form PI but instead of asking the prosecutor to merely tender and read witness statements, the Magistrate will ask the witnesses to make statements on oath in court and in the presence of the accused person and his solicitor, if any, and to record the statements by the witnesses. These recorded witness statements are called depositions.

23.	At this stage, the accused person or his solicitor is entitled to cross examine such witnesses. Answers given to questions in cross examination will be taken down and will form part of the witnesses' depositions. Each witness deposition must be signed, or attested to, by both the witness and the Magistrate.

24.	The accused person is also entitled to give evidence, and to call witnesses to give evidence, on his behalf and the prosecutor is entitled to cross examine such witnesses.

25.	At the end of both the short form PI and the long form PI, the Magistrate is obliged to ask the accused person to make any statement or call evidence on his own behalf and the Magistrate is obliged to record any statement made by the accused person including any evidence called on his behalf.

26.	The accused person or his solicitor is also entitled at the end of both the short form PI and long form PI to address the court if he chooses to do so.

Referral to the High Court:

27.	Where, after considering the statements and depositions, the Magistrate is of the opinion that the facts alleged in the witness statements and depositions are sufficient to justify committing the accused person for trial to the High Court, he then commits the accused person for trial at the High Court, otherwise, he shall discharge the accused person.

28.	In the event that the Magistrate discharges the accused person, the DPP is entitled to request copies of the Magistrate Court records of the PI proceedings and witness statements or depositions and if, on considering the case, he is of the view that the accused person ought not to have been discharged, he may apply to the High Court for direct committal of the accused person notwithstanding his discharge by the Magistrate Court.

29.	Where the accused person is committed for trial to the High Court, the accused person is entitled to a copy of the record of the PI proceedings including the witness statements and depositions, at any time before commencement of the trial at the High Court. In addition, copies of all PI records (that is, the charges against the accused person, all witness statements and depositions, any statement from the accused person and his witnesses as well as copies of all exhibits and any summons, recognizance and bail conditions) must be transmitted without delay to the Registrar of the High Court. On transmission of these documents to the High Court, an authenticated copy of the same documents must also be supplied the DPP.

Filing of information:

30.	It is after the receipt of the authenticated copies of the witness statements and depositions that the DPP may file an information if he is of the opinion that the case is one which should be tried upon information before the High Court. This is the requirement under section 233 of the CPC which provides as follows:

"233. (1) – If, after the receipt of the authenticated copy of the statements and depositions as aforesaid, the Director of Public Prosecutions is of the opinion that the case is one which should be tried upon information by the High Court, an information shall be drawn up in accordance with the provisions of this Code, and when signed by the Director of Public Prosecutions shall be filed in the registry of the High Court.

(2) - In any such information, the Director of Public Prosecutions may charge the accused person with any offence which, in his opinion, is disclosed by the statements and dispositions either in addition to, or in substitution for, the offence upon which the accused person has been committed for trial." 

31.	In my view, the requirements of section 233(1) are clear. First, the DPP can draw up, sign and file an information only if he is of the opinion that the case is one which should be tried upon information by the High Court. Second, the DPP would be in a position to form such opinion only if he has received authenticated copies of the statements and dispositions either from the Magistrate's Court which conducted the PI or from the High Court Registrar. Obviously, his opinion would be based on the contents of the statements and dispositions. This means that unless such statements or dispositions are received, there will be no basis upon which the DPP could have formed the necessary opinion and therefore any information filed in the absence of the receipt of such statements and dispositions would be ultra vires the powers of the DPP.

The applicants' case:

32.	It is common ground that the DPP has filed an information on the 28th June 2004 and that it is that information which has been amended by the 2012 information.

33.	However, the applicants' case is that no PI was ever held in the Magistrate Court in respect of these charges, therefore, there were no witness statement or deposition before the DPP upon which he could have formed the opinion that the case was one which should be tried upon information before the High Court. Counsel for the applicants submits that by filing the information without those documents, the DPP has acted beyond his powers and, therefore, the information is null and void.

DPP's case:

34.	The DPP's position, as I understand, is twofold. First, counsel for the DPP submits that there is a presumption in favour of the DPP that a PI was held and that the required authenticated documents were before the DPP when the information was filed in 2004. Counsel submits that if the applicants assert otherwise, the burden is on them to establish by evidence a prima facie case that no such PI was ever held and that no documents were before the DPP when the 2004 information was filed. Counsel submits that a prima facie case must be established by evidence and in this case the applicants have produced no evidence to this effect. Counsel further submits that the purported evidence referred to in the notice contained in the motion is not evidence as it has not been properly produced as evidence in court. Counsel, therefore, submits that the applicants have failed to discharge the burden of establishing a prima facie case and urges the court to dismiss the application.

35.	Second, counsel for the DPP submits that it has already been conceded by the applicants during the hearing of their application in April this year ("April application") for permanent stay of these same charges on the ground of delay that the folder which was before the court at that application contained the PI documents. They cannot now retract on that position.

The issues: 

36.	So, the issues here are whether a PI was ever held in respect of these charges and, if so, whether the authenticated documents were before the DPP when he filed the 2004 information? 

Presumption of due performance of statutory duties and burden of proof: 

37.	There is a general presumption in law that statutory duties are duly and properly performed and the courts will not lightly interfere with an act of executive authority unless it is shown by clear evidence that the authority has contravened the law. It is for those who assert that the authority has contravened the law to establish that proposition.

38.	In the present case, the DPP had filed an information on 28th June 2004. The presumption, therefore, must be that a PI was held prior to 28th June 2004 and that the filing of the 2004 information was based on an opinion formed by the DPP after the receipt of the authenticated copy of the statements and depositions as provided for under section 233(1) of the CPC.

39.	The burden is therefore on the applicants to establish by clear evidence that no PI was held in 2004 in relation to the charges in the information and that no witness statements or depositions were before the DPP in 2004 upon which he could have formed the necessary opinion to justify the filing of the 2004 information. Failure to discharge the burden will be fatal to the application.

40.	Where the evidence produced by the applicants shows, prima facie, that no PI was held, the burden then shifts to the DPP to show that a PI was held in 2004.

Evidence:

41.	Have the applicants produced any evidence to establish a prima facie case that no PI was held in 2004?

42.	In their motion filed on 11th May 2012, the applicants have included a notice stating that "the evidence forming the basis of the application are the Information filed on 3rd April 2012, the letter dated 5th April 2012 to the Director of Public prosecutions ("DPP") handed to the office of the DPP on that day and to the presiding judge of this Honorable court on the 8th April 2012 and the sworn statements by Henry Kausimae and Ricky Iomea filed on the 12th April 2012".

43.	The applicants have not filed any affidavit, nor have they given any testimony in court, in support of the application. They rely solely on the three documents referred to in the notice as their evidence in support of the application. 

Nature of application: 

44.	This is an application challenging the propriety of the exercise of the DPP's powers under section 233(1) of the CPC. Although the application did not say so, it is clearly an application for judicial review of the exercise of the DPP's powers.

45.	Applications for judicial review are governed by Chapter 15.3 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("2007 Rules"). The 2007 Rules require applications for judicial review to be commenced by a Category C claim.

46.	Under Rule 15.3.6(b), the claimant (or applicant) must file, along with the claim, a sworn statement verifying the facts on which the claim is founded. Rule 15.3.10 requires the claim and the sworn statement to be served on the defendant within 28 days of filing of the claim. Under Rule 15.3.12, the defendant is required to file a defence, along with a sworn statement verifying the grounds for their defence, within 14 days from the date of service of the claim on him.

47.	Compliance with the 2007 Rules is what I had in mind when I gave directions on the 8th May 2012 for the filing of a formal application and for the facts to be agreed, if possible, so that the pleadings could be shortened to facilitate a quick trial of the application in the light of its urgency. These directions have not been properly and fully complied with, hence, the difficulty we now have in regards to the evidence in this case. 

Analysis of the evidence:

48.	Having said that, I now return to the purported evidence as indicated in the notice contained in the motion. Three categories of evidence have been referred to in the notice. They are the information filed on 3rd April 2012, the letter dated 5th April 2012 to the Director of Public prosecutions ("DPP") handed to the office of the DPP on that day and to the presiding judge of this Honorable court on the 8th April 2012 and the sworn statements by Henry Kausimae and Ricky Iomea filed on the 12th April 2012.

49.	Unfortunately, the information filed on 3rd April 2012 contains no evidence useful to the applicants' case. It is evidence only of the 2012 information. It only proves that the 2004 information has been amended. It does not prove that no PI was held in 2004 nor does it prove that the necessary PI documents were not before the DPP in 2004.

50.	As for "the letter dated 5th April 2012 to the Director of Public Prosecutions handed to the office of the DPP on that day and to the presiding judge of this Honorable court on the 8th April 2012", I regret to say that the letter has not been properly tendered into evidence and therefore I cannot accept it as evidence in these proceedings. A document handed to a judge from the bar table is not evidence unless the person producing the document does so under oath or unless it is tendered by consent and, in this case, counsel for the DPP has, in his submission, objected to the tender of the letter. There are proper procedures to be followed when producing documents into court as evidence and those procedures must be followed. Failure to do so will give rise to the risk of the document being rejected as evidence. The letter cannot therefore form part of the evidence in this application.

51.	That leaves us with the sworn statements by Henry Kausimae and Ricky Iomea filed on the 12th April 2012. As for the sworn statement by Mathew Kausimae filed on the 12th April 2012, I find nothing in it which is of any assistance to the applicants' case. In fact, paragraph 13 of that affidavit is detrimental to the applicants' case. In that paragraph, Mr. Kausimae deposed to the fact that the High Court Registry had informed the DPP's office that they had found the file relating to the committal of Ronnie Cawa and that the committal had occurred in 2004. Subsequently, a folder titled "Abduction of seven Melanesian Brothers" was produced to the court by the High Court registry during the April application. At the hearing of that application, it was accepted by all parties that the folder contained the PI documents relating to the charges. In that folder are statements from potential witnesses relating to the charges which are the subject of the present application. I shall refer to this folder again shortly.

52.	In the case of Mr. Ricky Iomea's affidavit, Mr. Iomea was appointed to the DPP's office in 2005. Anything he says about what happened in 2004 in the DPP's office would be hearsay. In any event, I see nothing in Mr. Iomea's affidavit which is of any assistance to the applicants' case.

53.	The applicants have therefore not discharged the burden of showing a prima facie case in support of this application. This is sufficient to dismiss the application.

54.	However, there is a further reason why this application should be refused and that relates to the fact that, in my ruling delivered on 30th April 2012 in regards to the April application, I have already made certain findings and conclusions in regards to the very issue now raised by this application, that is, whether a PI was held in 2004 in relation to these charges.

55.	These findings and conclusions were based on admissions and concessions made by the applicants at the hearing of that application. At paragraph 10 of that ruling, I said:

"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." (my emphasis).

56.	Again, at paragraphs 11 and 12 of that ruling, I said:

57.	"11. This application was initially in two parts. The first part sought permanent stay of the criminal proceedings on the ground of loss 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." (my emphasis).

58.	The Court Folder referred to in that ruling is the folder produced to the court in April 2012 titled "Abduction of seven Melanesian Brothers" which I have already referred to above. As highlighted in the paragraphs quoted above, the conclusion reached in that ruling in regards to the folder was that it contained the PI documents relating to the charges. That conclusion has not been challenged by the applicants. In fact, they have accepted at that application that the folder contained the PI documents, hence, their decision to vacate the application for permanent stay of the criminal proceedings on the ground of lost PI documents.

59.	Despite accepting that position, the applicants now argue that that is not their position and that the court had been misled in its conclusion that the defence had accepted that a PI was held in or about 2004.

60.	Unfortunately, I cannot accept that argument. If counsel is of the view that the ruling in the April application was erroneous in regards to its findings and conclusions, an appeal should have been filed against that ruling in order to rectify any such errors. Until that is done, the findings and conclusions in that ruling must stand.

61.	There is also one final reason why this application should be refused and that is the delay in bringing this application earlier. This is an application for a declaration that the 2004 information is null and void. Applications for declarations, as in all claims for judicial review, are discretionary and delay has always been an important factor in determining the fate of such applications. This application was filed on the 11th May 2012. The original information, which is the subject of the challenge, was filed on the 28th June 2004. That was almost 8 years ago. I am sure the applicants must have had legal representation in relation to these cases since 2004. The applicants could have brought this application in 2004, or 2005 at the latest, when the lawyers, from both the DPP's office and the Public Solicitor's office, who had carriage of these cases were still available in these offices. They have since left and the cases are now been handled by lawyers who came in much later and who may not have any idea as to what happened in relation to those cases in 2004. No reason has been advanced as to why this application was never brought in 2004 or 2005. I would refuse this application also on the ground of delay.

Order:

62.	In the event, this application should be dismissed and accordingly I so order.

63.	It is important that the substantive trial proceeds as soon as possible.

THE COURT.