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R v Kauapa [2010] TVHC 4; Criminal Appeal Case 05 of 2009 (25 May 2010)

In The High Court of Tuvalu
At Funafuti.

Criminal Appellate Jurisdiction
HC. Crim. App case no. 5/09

Between:

R
Appellant

V

Sei Kauapa
Respondent

BEFORE THE CHIEF JUSTICE

F Niko for the appellant
I Isala for the respondent

Hearing: 21 and 24 May 2010
Judgment: 25 May 2010

Judgment

I have previously ruled in this case on the right of the parties in a criminal case to a copy of the decision before lodging an appeal. In that decision, delivered on 22 October, 2009, I ordered that a copy of the decision be supplied to both sides. I also gave the prosecution leave to appeal out of time should they wish to do so; the time allowed having passed whilst the first application was before the Court. This is the hearing of that appeal. It is against the order of the learned Senior Magistrate acquitting the respondent.

It is convenient to take the background to the appeal from that earlier judgment.

"The respondent was charged with an offence of attempted rape of an eight year old girl. He first appeared before the Senior Magistrate’s Court on 12 January, 2009, and was bailed to appear on 6 February, 2009. It appears that, at that first appearance, the learned Senior Magistrate ordered that the police should provide, at the next sitting, an explanation in writing of why the respondent had been held in custody following his arrest for longer than the permitted time. No explanation was provided on 6 February, 2009, nor any reasons why it was not. It has no bearing on this application except that it may provide some explanation for the events which took place.

On that date, the police officer who was appearing for the prosecution sought an adjournment because he was not the officer in charge of the case and the officer with carriage of it was, in the time worn and overworked phrase, "on his way". The Senior Magistrate thereupon denied the adjournment. Exactly what happened then is not clear. Counsel for the respondent, who was present in the lower court, says the accused was acquitted. The record, which I have been given, stated somewhat ambiguously, "...the court will acquit the charge and dismiss the accused on the failure of the police to obey the Court Order".

It appears from the record of the Senior Magistrate that the accused had not entered a plea to the charge by this time. The accused was bailed and the police were ordered to disclose all statements to defence counsel on or about Friday 30 January 2009. There is no record that the date of the next hearing was set at that time nor of any direction whether the next hearing was for mention or trial. In light of the fact that the plea was not known, it seems probable that it could not have been listed for a contested hearing.

The record of the hearing on 6 February 2009 states:

"Accused in court. Defence Counsel Kofe brought up two issues –

1. No letter from the police have been received explaining why the accused was locked up for more than 24 hours.
   

Order of disclosure to be received on the 30th January was not received.

Prosecutor Cpl Sikale advises the Court that –

Firstly, Cpl Agaifo deals with this charge at the time. He has not prepared any letter.

Secondly, no disclosure being made because the police casefile is still with the office of the Attorney General.

The Court is of the view that the two explanations by the prosecutor are not acceptable at this stage. The Court is mindful of what the accused did is not acceptable in this small community like Tuvalu but that does not allow the Court to be lenient on the attitude of the police. Therefore, the Court will acquit the charge and dismiss the accused on the failure of the police to obey the Court Order."

The present appeal is on the single ground that the Senior Magistrate erred in law in acquitting the charge of criminal sexual offence. I understand that the charge has been re-filed in the court and stands adjourned pending the result of this appeal.

Counsel for the appellant has made detailed submissions in which she points out that the instances where an acquittal may be ordered are limited to the circumstances permitted in sections 188, 195 and 201 of the Criminal Procedure Code. She also makes reference to sections 185 and 190 as giving the court power to dismiss the charge.

The principal thrust of her submission, and the grounds for the prosecution’s concern, is that dismissal of the charge does not prevent the prosecution from bringing the same charge again whereas an order of acquittal does and, should it be attempted, would be likely to give rise to a successful plea of autre fois acquit.

Whilst the effect of acquittal is clear, there is some confusion over the terms, dismiss and discharge and their consequences. English authority is of limited assistance because of statutory provisions which do not apply in Tuvalu.

Section 188 provides that, following withdrawal of a charge by the prosecutor, the court may, depending on the stage the trial has reached, make an order acquitting under section 188(2)(b) (i) or an order discharging the accused under section 188(2)(b) (ii). It is a matter clearly for the court’s discretion. Subsection (3) makes it clear that an order discharging the accused "shall not operate as a bar to subsequent proceedings ... on account of the same facts".

Dismissal is not so clear. Section 195 provides that, where there is no case to answer, "the court shall dismiss the case and shall forthwith acquit the accused". However, both sections 185 and 190 give the court the power to dismiss the charge without specifying the consequences in terms of the continuing viability of the charge. Counsel for the appellant suggests that a dismissal of the charge does not operate as a bar to subsequent proceedings on the same facts.

The question was considered in the Fiji case of Ministry of Labour et al v Merchant Bank of Fiji [2002] FJHC 107, 26 April 2002, in respect of sections in the Fiji Criminal Procedure Code which are essentially identical to our provisions:

"On a perusal of sections 198 [Tuvalu 185], 201[Tuvalu 188], 203 [Tuvalu 190] and 210 [Tuvalu 195] of the Criminal Procedure Code, it appears that the word ‘acquittal’ is used only in section 201 and section 210. Section 201 provides a power to acquit after the charge is withdrawn by the prosecution in the course of a hearing, either before or after the prosecution case is closed and the accused is called upon to make his defence. Section 210 applies at the end of the prosecution case. In principle although it is possible to acquit if no evidence has been led at all, the purpose of sections 201 and 210, is to provide for a power to acquit in the course of the trial, when evidence is being led.

In contrast, sections 198 and 203 clearly apply before witnesses have been called. Unlike sections 201 and 210, the word ‘acquit’ is not used in either section. This makes sense. An acquittal before any evidence has been led, and on the first call or hearing date, would carry dire consequences for the prosecution. This is because an acquittal, if it is not declared to be a nullity on appeal, is a bar to subsequent prosecution on the same facts.

For these reasons, I am in complete agreement with Pain J’s finding in State v Semisi Wainiqolo and Anor [1998] FJHC 29, 5 March 1998, that a dismissal of a charge under section 198 of the Code cannot lead to an acquittal. It is therefore open to the prosecution to lay a fresh charge."

In the present case, the learned Senior Magistrate did not state under which provision he was acting. In the face of a blatant disregard of the court’s orders by the prosecution, he understandably wished to record his displeasure. In effect the application by the police amounted to a failure to appear and brought it within section 185. Had he addressed his mind to that section he would have seen that his power was to allow the adjournment or dismiss the charge and did not include the power to acquit.

In the case of R v Kelemene Tauetia [2005] TVHC 10, 20 May 2005, I dealt with an appeal on a similar point. The difference was that, in that case, the case had been fixed for trial on Vaitupu and the date for that trial set. On the hearing date, the accused and his lawyer were present and ready to proceed but the prosecution applied for an adjournment on the grounds that they were not ready because they had not served any witness summons, two witnesses were not available and the prosecutor told the court he needed time to seek advice from the Attorney General.

In such as case, the court has a discretion whether to allow the adjournment or to refuse it and require the prosecution to proceed. If the prosecution then offers no evidence the court will acquit the accused. In Tauetia’s case, I explained:

"Any court must exercise its discretion on proper principles considering the justice of the situation whilst bearing in mind that justice applies to the prosecution as much as it does to the defence.

The general rule is that an appellate court will not interfere with the exercise of discretion by a lower court unless it has not been exercised judicially or was based on a wrong principle or that it resulted in injustice.

If a decision appears likely to result in injustice to one side, it maybe reviewed but this refers to an injustice in the particular circumstances of the case the court is considering. Just because the decision may result in one side losing is not unjust if the exercise of the discretion which caused that result was made on proper principles in the relevant circumstances.

In the present case the Senior Magistrate gave a written ruling in which he set out the reason for his decision. The matters on which he based his decision were properly considered and showed a failure of the prosecution to carry out its duty in relation to the case before him. The facts he sets out are not challenged by counsel for the appellant. They reveal serious failure by the prosecution to ensure the case was ready for trial."

Although, in the present case, the apparent total disregard of the orders of the court was a serious matter and was further aggravated by the lack of any attempt to provide an explanation, the extent of the failure was very much less serious than in Tauetia’s case. The court should have weighed the true effect on the proceedings and then decided whether or not to grant the adjournment. Had it then been decided to refuse the application, the only course open was to dismiss the charge.

In any such case, the court must exercise its discretion on sound principles which must be stated in the record. In the case of Public Prosecutor v Pierre [2002] VUCA 30, 24 October 2002, the Vanuatu Court of Appeal pointed out:

"When a prosecutor is not present the Judge has a discretion whether to adjourn or not. It is a discretion which must be exercised judicially after considering the reasons, if any, for the absence of the prosecutor, the number of any previous adjournments, the convenience of witnesses and how many times they have attended Court, the date of alleged commission of the offence, the nature and seriousness of the charge and any other relevant circumstances. The more serious the charge, the more carefully must that discretion be exercised and the more reluctant will the Judge be to refuse an adjournment.

If no plea has been entered and adjournment is refused then the charge must be dismissed. That is not an acquittal. The charge may be brought again, although the greatest care would be required of the prosecutor in deciding to do that.

If a plea has been entered before the Judge and he refuses to adjourn then the trial continues."

In the latter case, the prosecution may not have any evidence with the result that the provisions of section 195 may come into effect and the judge may acquit the accused.

In the present case, the learned Senior Magistrate did not exercise his discretion on a proper basis in refusing the adjournment. Counsel for the respondent concedes that, even if he had exercised his discretion properly and still refused the adjournment, the only remedy was to dismiss the charge. The order he made acquitting the accused was not open to him.

This was a very serious charge. The Senior Magistrate acknowledged that. Had the police also taken their responsibility to the court and the public sufficiently seriously, this incident would not have occurred. Such lack of respect for the court process is a serious matter. The annoyance of the court is understandable but the course followed in this case was wrong.

In any such case in future, the court should write immediately to the Commissioner of Police pointing out the fault. I can only assume that such a course will always result in an immediate response to the court, an internal investigation and, where fault is revealed, disciplinary action.

The appeal is allowed. The acquittal ordered was in excess of the court’s jurisdiction and is void. The case should proceed on the adjourned re-filed charge with as much expedition as possible in view of the time this appeal process has taken.

Dated: 25th day of May 2010

Hon. Gordon Ward
CHIEF JUSTICE