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Maclaine v Regina [2014] SBCA 3; SICOA-CAC 10 of 2014 (9 May 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

[1] This is an appeal from a decision of the High Court made on 10 February 2014, on an application to remove a criminal case from the Honiara Magistrate's Court to another Magistrate's Court or to the High Court and permanently to stay the proceedings.

[2] It is necessary briefly to set out the background history. The appellant Quentin Hugh Maclaine is from Australia and came to Solomon Islands on a visitor's visa in September 2013. On 24 September 2013, he was charged with eight counts of indecent exposure to females and one count of importing prohibited or restricted goods namely indecent or obscene articles.

[3] The trial was held at the Honiara Magistrate's Court before Principal Magistrate, Rodgers Tovosia, from 4 to 16 December 2013. The verdict was then reserved to 7 January 2014. During that period the appellant's bail was varied to allow him to return to Australia for Christmas with a return date of 7 January. On the day of his return, he discovered the verdict was not ready for delivery and that the matter had been further adjourned to 27 January.

[4] It is alleged by the appellant that, on 9 January, he had received a telephone call from the magistrate offering to acquit him if he gave the magistrate $50,000. This was followed by further telephone calls over the next few days, apparently from the same person albeit using a different name, during which the appellant feigned an interest in the offer. Some of these were recorded without the caller's knowledge; including one received in the presence of an Australian consular officer.

The High Court Application

[5] On 16 January 2014, application was filed on behalf of the appellant in the High Court for various orders including a permanent stay of the criminal proceedings against the appellant. It was followed, on 23 January 2014, by an application to the magistrate for a stay of the Magistrate's Court proceedings pending the High Court application and for the Magistrate to recuse himself.

[6] The orders sought from the High Court were that the Magistrate's Court proceedings be transferred to the High Court and that the registrar, on receiving the papers, should deliver them into the custody of a High Court judge. It also sought a declaration that the institution of the summary proceedings had been in breach of section 126(1) of the Criminal Procedure Code and that there either be a permanent stay of those proceedings or an order dismissing the charges and entering verdicts of not guilty.

[7] The application was heard on 31 January 2014 and, on 10 February, the learned judge refused the orders sought but ordered that there be a fresh trial of the applicant in the Magistrate's Court by another Magistrate. He also gave consequential directions to ensure safety of the case papers and a prompt re-listing of the case for trial before another Magistrate. This appeal is from that decision of the High Court.

[8] The application to the High Court had been brought under section 38 of the Magistrates Courts Act of which the relevant passage provides:

"38. – (1) The High Court may at any time and at any stage thereof before judgment transfer any civil cause or matter before a Magistrate's Court to any other Magistrate's Court or to the High Court, and such cause may be transferred either entirely or in respect of any part thereof or procedure required to be taken therein".

The Right of Appeal

[9] The respondent challenges the right of the appellant to bring this matter to this Court on appeal. Mr Iomea submits that that this is a criminal matter which must be brought under Part IV of the Court of Appeal Act. He points out that section 20 of that Part limits the right of appeal to "a person convicted" which does not cover this appellant. He suggests that the hearing in the High Court was a criminal appeal from the Magistrate's Court and, by section 22, any appeal from the High Court in its appellate jurisdiction could only have proceeded on a pure question of law and an application to transfer the proceeding under section 38 was not a question of law.

[10] If counsel's submission is correct that the application to the High Court was a criminal matter, the High Court should not have entertained the application. However, whilst it is clear that it arose initially from a criminal proceeding, the nature of the application to the High Court under section 38 to remove it from the Magistrate's Court was purely procedural and was an original application to the High Court, not an appeal.

[11] Part III of the Court of Appeal Act deals with civil appeals. It includes section 11(1) which provides that;

"... an appeal shall lie under this Part of this Act in any cause or matter, not being a criminal proceeding, to the Court of Appeal - (a) from any decision of the High Court sitting in first instance, including any decision of a judge in chambers ..."

[12] We are satisfied that the appeal to this Court is properly brought including, as it does, the appeal from the refusal of the High Court to make a declaration about section 126(1) of the Criminal Procedure Code. That ground formed the principal submission to us by Ms Garo but, for reasons which will become apparent, we do not intend to give any ruling on the meaning or application of that section.

The Application for a Permanent Stay

[13] The main purpose of the High Court application was to have the criminal proceedings against the appellant permanently stayed. It was urged that the appellant's allegation against the Magistrate, if substantiated, is so serious that a fair trial could no longer be guaranteed before him. In addition, the evidence had already been heard including that of the appellant, he had effectively lost any benefit to be derived from the right to silence and the prosecution had gained knowledge of his defence which it would not normally have had. Ms Garo also explained that the appellant, in waiting for the trial, has incurred substantial expenditure and any further delay in trying the charges against him would unjustifiably and substantially increase costs.

[14] Whilst this Court appreciates the seriousness of the alleged conduct of the Magistrate and the possible denial of a fair trial as a consequence, the fact remains that the criminal charges against the appellant were also serious and can and should be tried as soon as possible.

[15] The evidence of the charges the appellant faces is totally independent of the conduct of the Magistrate. It appears that the investigation into the appellant's allegation against the magistrate has not and is not being pursued with any diligence and, therefore, remains unresolved. It would be unconscionable to suggest that the trial of the appellant should continue before the same Magistrate. The only just solution is to make an order which will ensure the appellant receives a fair trial by an impartial and independent tribunal as soon as is reasonably possible. The learned judge in the High Court clearly took that view when he ordered the case to be transferred to another Magistrate's Court for hearing by a different Magistrate. However, we appreciate the appellant's apprehension that such a trial may be tainted by possible bias arising from any possible collegiality between magistrates. We are also aware of the serious shortage of magistrates in Honiara and the consequential risk of considerable delay in listing the retrial.

[16] We dismiss the appeal against the judge's refusal of a permanent stay of the criminal case against the appellant and are satisfied that the proper and just order is to direct that the case be transferred to the High Court for trial de novo. As the matter is to be heard de novo, any possible challenge to the meaning and effect of section 126(1) of the Criminal Procedure Code should be raised as a preliminary objection for the trial judge to hear and determine.

[17] We therefore order:

1. Appeal dismissed.
   
2. The proceedings in the Magistrate's Court in the matter of R v Quentin Hugh Maclaine, Criminal case number 908 of 2013 shall be transferred forthwith to the High Court for hearing de novo in that Court
   
3. The Registrar of the High Court shall ensure that the evidence, exhibits and record of proceedings in the said Magistrate's Court case number 908 of 2013 are delivered into the custody of the High Court within five days of the date of this order and the trial of the said matter be given priority listing for hearing by a judge of the High Court as soon as reasonably practicable.
   
4. No order for costs.
   

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Justice Edwin Goldsbrough (P)
President

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Justice Glen Williams (JA)
Member

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Justice Sir Gordon Ward (JA)
Member