HIGH COURT OF SOLOMON ISLANDS.

Criminal Case No. 311 of 2003.

DAVID FILIA

-v-

REGINA

(KABUI, J.).

Date of Hearing: 5th May 2005.
Date of Ruling: 9th May 2005.

P. Little for the Crown.
M. Anders for the Applicant.

RULING

Kabui, J.	This is an application filed by Mr. Filia (the Applicant) on 29th April 2005 for a permanent stay of the criminal proceedings against him for the murder of Martin Papaina in Auki on 15th February 2003, in the Malaita Province, contrary to section 200 of the Penal Code Act (Cap. 26) ( the Code). He was committed by the Magistrate Court in Honiara on 20th November 2003 to stand his trial in the High Court for murder. He appeared before me on 11th October 2004 to be tried for the murder he allegedly committed as set out in the information filed by the DPP on 26th November 2003. The Crown Prosecutor, Mr. Barry, then told me that discussion had taken place between Mr. Averre of the Public Solicitor’s Office and Mr. Ryan of the DPP’s Office to the effect that the murder charge would be reduced to a manslaughter charge to which the Applicant would plead guilty. By that time, Mr. Ryan had left the DPP’s Office and returned to Melbourne, in Australia. Mr. Barry said he would ask for an adjournment to discuss the matter further in the DPP’s Office and to file a charge for manslaughter if necessary. I then adjourned the case for a date to be fixed. After that, nothing more happened. The case came up again before me on 18th November 2004. The Crown Prosecutor then was Mr. Cooper of the DPP’s Office. Mr. Averre was still then of the view that a charge for manslaughter was still forthcoming from the DPP’s Office. Mr. Cooper did not reject the view held by Mr. Averre. I again adjourned the case for a date to be fixed. Again, nothing more happened. The case again came before me on 30th March 2005. The Crown Prosecutor was Mr. Bannister of the DPP’s Office. Mr. Bannister said a manslaughter charge was envisaged but the DPP in person was out of the country. I adjourned the case yet again for a date to be fixed. Again, nothing more happened. The case then came up before me on 15th April 2005. This time, Mr. Little was the Crown Prosecutor. He said that he had carriage of the case just minutes before he came to Court. Mr. Anders who appeared for the Applicant told me that the Applicant would plead guilty on agreed facts on the next hearing date. When the case came up on 25th April 2005, Mr. Little told me that he was ready to proceed with the trial for murder. Mr. Anders was taken by surprise. He then indicated his wish to apply for a stay of the proceedings on the ground of abuse of process. He filed a Notice of Motion on 29th April 2005, applying for a permanent stay of the proceedings against the Applicant on the charge of murder against him on the ground that the Crown Prosecutors had made an undertaking to reduce the charge of murder to manslaughter and was in breach of that undertaking by subsequently maintaining the charge of murder and wishing to proceed with that charge against the Applicant. These are basically the facts giving rise to this application.

The law.

(i)	The court’s inherent jurisdiction to prevent the abuse of its process.

At page 409 in Connelly v. DPP [1964] 2 All E. R. 401, Lord Morris said-

"…There can be no doubt that a court which is endowed with a particular jurisdiction has 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 defeat any attempted thwarting of its process…".

So a court may intervene if its process is being abused by one of the parties before it. It can do this in civil as well as in criminal proceedings to protect one of the parties. 

(ii)	The jurisdiction to grant a stay in criminal prosecution.

According to the majority judgment in Williams and Others v. Spautz (1991-1992) 174 CLR 509, at 518-519, this jurisdiction to stay criminal proceedings has a dual purpose. First, is to prevent an abuse of process. Second, is to prevent a criminal prosecution which will produce an unfair trial though the latter is also part of the abuse of process in the wider sense such as for an improper purpose. The majority judgment goes on to say that,

"…If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no available means, such as directions to be given by the trial judge, of bringing about a fair trial. If, however a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself.

It is of fundamental importance that, unless the interest of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it…There is the risk that the exercise of the jurisdiction to grant a stay may encourage some defendants to seek a stay on flimsy grounds for tactical reasons. But that risk and the other policy considerations already mentioned are not so substantial as to outweigh countervailing policy considerations and deter the courts from exercising the jurisdiction in appropriate circumstance…".

The prevailing view therefore is that whether the ground for stay is the likelihood of an unfair trial ensuing or that the prosecution is underpinned by improper purpose, the court must be satisfied that the indices of a fair trial are lacking, and taking into account the policy considerations, the court may grant a stay of the prosecution proceedings.

In emphasizing the need for court to protect itself against the abuse of its process, the majority judgment at page 520, said-

"…there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings…The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by the State and the citizen alike. The second is that, unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice…".

The court therefore has a balancing exercise to observe and then implement in the circumstances of the case before it. To do this, the court would exercise its discretion on the evidence before it and reach a certain conclusion.

The law is not in dispute.

A number of authorities were cited by counsel on both sides, none of which could be said to be on all fours with the facts of this case. The exposition of the law on this issue in those cases cited above was straight forward and not in dispute. However, the interesting aspect though is the question as to what categories of circumstances of abuse of process should qualify for the attention and consideration of the courts? In Jago v. The District Court of New South Wales and Others (1989) 168 CLR 23 and Walton v. Gardiner (1992-19993) 177 CLR 379, the High Court of Australia said that the circumstances where the issue may be raised are never closed. The English courts do not disagree. 

Abuse of the court process.

This application alleges that the remarks made in open Court by the Crown Prosecutors to reduce a murder charge to a charge of manslaughter and then retracting that position a little more than six months later is an act constituting an abuse of the court process. Is that a situation where it can be said that the Court should exercise its discretion and grant a permanent stay of the criminal proceedings against the Applicant for murder? I do not think the Applicant is being prosecuted for an improper purpose because the Magistrate Court had already committed the Applicant to stand his trial for murder. There must have already been prima facie evidence against him at the committal stage. Improper purpose as a motive for his prosecution therefore does not arise in this case. That leaves the about-turn position by the Crown, the alleged breach of an undertaking, as the only issue for consideration by this Court. As stated, the trial of the Applicant was set down for 11th October 2004 and to last for one week. Before the Applicant was arraigned, Mr. Barry, the Crown Prosecutor told me that there had been discussion between Mr. Averre of the Public Solicitor’s Office and Mr. Ryan of the DPP’s Office to the effect that Mr. Ryan was of the view that the murder charge should be reduced to a charge of manslaughter. Mr. Barry sought an adjournment for that purpose to enable him to seek clarification for the purpose of reducing the murder charge to one of manslaughter. Mr. Ryan who had spoken to Mr. Averre had by then left the country. There was no DPP as the former DPP had been appointed a High Court judge. Paragraph 4 of Mr. Chauchi’s affidavit produced in Court confirms these facts. Even if Mr. Ryan had not left the country, there would not have been a DPP to consult about his views that he had expressed to Mr. Averre. Also, there would have been no guarantee that any new DPP would have agreed with his view. The fact that Messrs Cooper, Bannister and Little had appeared at plea/sentence hearings later in addition to Mr. Barry’s first appearance did not change the position that Mr. Ryan’s view was his personal one which had not been discussed with the DPP until 20th April 2005 when the new DPP expressed his view whereby he disagreed with Mr. Ryan’s view originally communicated to Mr. Averre. This was the basis for Mr. Little’s position to press on with the murder charge at the hearing on 25th April 2005. It was unfortunate that Mr. Ryan saw it fit to express his view to Mr. Averre either before or after the information had already been filed and then left the country. He was clearly challenging the position taken by the former DPP who had decided to charge the Applicant for murder. He had thrown the spanner in the works and it apparently caused the confusion and thus a delay. Mr. Ryan and Mr. Averre were counsel at the committal hearing. Probably Mr. Ryan had put his view to the former DPP who might have disagreed and decided to file a charge for murder against the Applicant. If that be the case, it would be wrong for Mr. Ryan to communicate his position to Mr. Barry and undermine the then DPP’s decision. Section 159(2) of the Criminal Procedure Code Act (Cap.7) (the CPC) would have cured Mr. Ryan’s concern at the time. If Mr. Ryan had not left, he would most likely to have been the Crown Prosecutor prosecuting this case. The impression I had was that no particular officer in the DPP’s Office had carriage of the case from the beginning after Mr. Ryan left until Mr. Little took it over and brought it to the attention of the DPP before the 25th April 2005 hearing. As far as the Crown is concerned, the murder charge still stands and the indication to substitute murder with manslaughter was an indication that came from Mr. Ryan who was not the DPP at any time. The decision of the former DPP to charge the Applicant with murder was reaffirmed by the new DPP on 20th April 2005. Mr. Ryan’s personal view did not represent the DPP’s view. Clearly, it was Mr. Ryan’s view that was being put to me all along by the successive Crown Prosecutors. Of course, the Applicant would not have known about this fact in the DPP’s Office nor had his Solicitor known about it either. The expectation of the defence was that the next hearing date was for the purpose of the Applicant pleading guilty to manslaughter and then sentencing to take place. But instead of that happening, the case was adjourned each time it was listed for hearing and then eventually that expectation was replaced with the decision to proceed with the murder trial as before. The prevailing state of affairs in the DPP’s Office had created a limbo situation for the Applicant and his Solicitor. That is a fact the DPP would find it difficult to deny in this case. However, it cannot be said that the Crown had breached an undertaking to reduce murder to manslaughter for there was no undertaking by the Crown. Mr. Ryan’s personal view in defiance of the DPP’s decision was not the Crown’s official position. This was the position by obvious implication. Counsel for the Applicant, Mr. Anders, did however emphasize that the integrity of the criminal justice system was being called into question in this case and an affront to the public conscience. That argument is the counter-balance weight on the scale to the argument that it is also in the public interest that criminals are prosecuted for offences committed against the Crown. In this case, the Applicant is being charged for murder and there is prima facie evidence against him at the committal stage. Is it in the public interest to grant a permanent stay of the criminal proceedings against him and simply put aside the murder charge on the ground that the Crown acted rather clumsily in their handling of this case. In my view, Mr. Ryan is not the Crown. The DPP is the Crown. Part of the blame must also lie with Mr. Averre, who had negotiated with Mr. Ryan a guilty plea for manslaughter which was inconsistent with the information for murder filed by the then DPP on 26th November 2003. It was a plea bargain that misfired. It misfired because the then DPP was left out of the bargain. The best bargain for the defence would have been a charge for manslaughter in the first place. If that was not possible, the matter should be left there and the defence would press for a case of manslaughter at the end of the trial under section 159(2) of the CPC. The Applicant is not being denied a fair trial in this case. The Applicant will receive a fair trial on the next hearing date. It is not disputed that there had been a delay of a little over six months. The reason for the delay was clearly the delay in taking the matter to the new DDP at the earliest opportunity for his view. There is nothing to suggest that the delay was a tactic by the Crown to cause injustice to the Applicant in any significant way. It is also not disputed that the Applicant has been in custody since his arrest in 2003. Even if the Applicant had been indicted for manslaughter in the first place or the Court convicted him of manslaughter after his trial, his time in custody would be taken into account when sentenced and thus compensated accordingly. He would suffer no prejudice in that regard. This application must fail on another ground. The bargaining process often embarked upon in criminal proceedings cannot be a matter that involves the notion of abuse of process. Rather, it is a process of give and take often discussed outside of the trial proper and announced in open court by the Crown Prosecutor as being his or her position in the matter. By practice, the trial judge would have a say in that process in open court. 

Pleading guilty to a lesser offence.

Pleading guilty to a lesser offence is a half-way house between pleading guilty and pleading not guilty.

In R. v. Soanes [1948] 1 All E. R. 289, Lord Goddard, C.J. at page 290 said-

"…While it is impossible to lay down a hard and fast rule in any class of case as to when a plea for a lesser offence should be accepted by counsel for the Crown-and it must always be in the discretion of the judge whether he will accept it-in the opinion of the court, where nothing appears on the depositions which can be said to reduce the crime from a more serious offence charged to some lesser offence for which, under statute, a verdict may be returned, the duty of counsel for the Crown would be to present the offence charged in the indictment, leaving it a matter for the jury, if they see fit in the exercise in their prerogative, to find a lesser verdict…".

This statement of practice was later applied in R. v. Cole [1965] 2 All E.R. 29 by Lord Parker, CJ. Clearly, as a matter of practice, the judge decides whether to accept the guilty plea to a lesser offence or to refuse it and order the trial to proceed and leave the matter to the jury to decide upon the evidence adduced by the Crown. Whreas Lord Lawton in R. v. Coward (1980) 70 Cr. App. R. 70, said that counsel for the Crown bore the responsibility of deciding what to be done, though in practice, counsel should explain to the judge what is being done. If, however, the judge did not agree with what is being done, counsel may have to retract his original position. The Court in R.v. Broad (1979) 68 Cr. App. R. 28 however said that the judge should not be a rubber stamp to approve whatever counsel thought desirable. The judge obviously is in control in that process. In Solomon Islands, the judge sits in a trial both as a judge of the law as well as of facts. Section 159(2) of the CPC states-

"…When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it…"

This subsection does not vest the discretion spoken of in the cases cited above in the trial judge. The trial judge simply proceeds with the trial and if at the end of the case, the evidence does not sustain the charge borne out in the indictment but proves a lesser offence under the same category of offences, the trial judge may convict the accused of that lesser offence although the accused had not been charged with that lesser offence in the first place. So the issue is really a storm in a tea cup in this case. Really, there is no room for a fuss at all in this case in view of section 159(2) of the CPC. I do understand that it is in the public interest not to spend time and money on a trial where the accused is prepared to plead guilty to the charge against him. This is not the case that the Applicant wishes to plead guilty to murder. He wants the murder charge to be withdrawn and replaced with a manslaughter charge to which he will plead guilty. In view of section 159(2) of the CPC, it would be impossible, in my view, to withdraw the murder charge and replace it with manslaughter. It is not that technically simple. Even in the absence of section 159(2) of the CPC, the trial judge may still order that the trial for murder proceeds, overruling any position to the contrary taken by the Crown. As the matter stands, the trial is to proceed under section 159(2) of the CPC and a manslaughter verdict can be considered in the judgment of this Court. The application is therefore dismissed. There will be no costs. I order accordingly.

F.O. Kabui
Puisne Judge