HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 333 of 2006

REGINA

-v-

MOSES SU’U

(J Lewis, Commissioner)

Hearing: 10 July 2007
Ruling: 13 July 2007

Mr. Craig McConaghy and Mr. Nicholas H. Mirou for DPP
Mr. Robert Cavanagh for Moses Su’u
Mr. Patrick Southey for John Toli
Ms. Gabby Brown for John Fo’ogau
Ms. Amelia Fa’asau for Henry Dodo
Mr. Darcy O’shea for Jimmy Siraoa
Mr. Doko Kari for Enoch Fisu

RULING

THE APPLICATION

JLewis, Commissioner: The Accused Su’u applies for an Order granting a permanent stay of proceedings in this matter. The accused alleges that there is an abuse of the process of the Court by the Director in pursuing the prosecution of the accused Su’u for the alleged murder of Francis Sale on 23 September 2000.

Counsel for Siraoa joins the Application. The DPP opposes it.

A SHORT HISTORY OF THE HIGH COURT PROCEEDINGS

In November 2006 the Information (filed 27 October 2006) was listed before a Judge of this Court (the ‘first Judge’). It contained one count alleging murder of Francis Sale charged against each man and 4 other counts charging each accused with the attempted murders of other men.

A plea was taken to the general issue from each accused on the charges. Each accused pleaded in Bar, an immunity from prosecution. The pleas were based on the provisions of the Amnesty Act 2000 Judgment was delivered by the first Judge on 1 March 2007.

The first Judge heard evidence and found certain facts. His Lordship held that the Accused were not immune from prosecution for the murder of Francis Sale. He further held that they were immune from prosecution for the attempted murders of the other named men. He directed that they enter a plea to count 1 in the Information.

It is sufficient to say that on 3 July 2007, the first Judge, of his own motion withdrew from hearing the matter.

The orders of the first Judge are in fact presently subject to neither Appeal nor Review. In making Orders or Directions the learned first Judge said (para. 24.) of his Judgment:

"24. The result is that, the accuseds are not immuned from criminal prosecution under the Penal Code for the alleged murder of Francis Sale at Kaimamosa village on 23rd September 2000. They will plead to the information on murder at the relevant date. However, they are immuned from prosecution on the attempted murder charges also laid against them."

THE APPLICATION BY THE ACCUSED SU’U

Su’u claims a Permanent Stay of Proceedings based on an abuse of process Mr. Cavagnah of Counsel submitted:

"a second trial judge is bound by the ruling of the first trial judge as to the factual findings made in respect of amnesty, and is therefore precluded from reconsidering the question. This conclusion flows from the decision of the High Court in Rogers v The Queen (1994) 181 C.L.R. 251.".. "It is submitted in this case that the factual findings by (the Judge) are a judicial determination and binding."… On 3 July His Lordship withdrew from further hearing the case. His withdrawal came after an ultimate issue had been determined."

ULTIMATE ISSUE

A judge may in rare circumstances be substituted during the course of trial R v El Ghaidouni [2006] 5 Archbold News, 3 CA. The present however is not such a case. This Court has been presented with an Information and asked to hear the issues raised a new. The Application seeks an Order of Stay on the basis that is set out above.

I do not accept that this court is bound by the findings of the first Judge. I am not prepared to accept that an ultimate issue was determined by a finding of fact material to a construction of the Amnesty Legislation before the first Judge in this case. Nor do I consider that this Court is bound by the findings. I say that for the following reasons.

The circumstances before the Court presently are distinguishable from those which existed in Rogers. In that case, the matter proceeded to conclusion – verdicts based upon the judgment made by the first Judge concerning the exclusion of confessional material on the basis that it was not obtained voluntarily. The prosecution in this matter ended when the first Judge ‘withdrew’.

In the present case the learned trial Judge withdrew on the basis that he believed himself to be conflicted. Counsel did not protest. The Judge made no final judgment – only interlocutory judgment or rulings at the time of his withdrawal, or to use the technical expression, recuse, there was no final determination judgment ruling or order in existence, save and except the finality expressed in his ruling that the charges of attempted murder were caught by the provisions of the Amnesty Act.

The finding that the accused are immune from prosecution on the attempted murder charges is in my respectful opinion a final judgment, however in rejecting the plea in Bar for immunity to murder the charge of murdering Francis Sale remains on foot and without a verdict cannot be said to be a final order and is not a ‘final Order of the Court.’

That having been said I rule that the bringing of the Information on that count does not amount to an abuse of process.

There remains the question of whether the issues raised are estopped. That question must be determined by whether the jurisdiction in which the matter is presently being argued is the civil or the criminal jurisdiction.

THE DOCTRINE OF ISSUE ESTOPPEL

It is settled law generally that the doctrine of issue estoppel does not operate in criminal proceedings in common law jurisdictions. Blair v Curran 1939 62 CLR 464 per Dixon J at 531. R v Storey (1978) 140 CLR 364 371 – 374 per Barwick CJ and Rogers v The Queen (1994) 181 CLR 251 per Mason CJ at 254 – 255. By parity of reasoning with those authorities, there is no basis for introducing issue estoppel and at its complexities into the criminal law of the Solomon Islands thereby serving only to make the criminal law of the Solomon Islands ‘more convoluted’ and see Rogers v The Queen (above) per Mason CJ at 255.

THE PRINCIPLE OF STARE DECISIS

The binding determination rule was referred by the Court in Rogers v The Queen (above) where Mason CJ said

"Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that judicial determination is biding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice, by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the (appellant)."

The key word on the dictum of Chief Justice Mason is the use of the phrase ‘finally decided’ The ruling on the issue of whether amnesty was available as a plea in Bar to these proceedings brought on Information dated 27 October 2006 was not a final determination of the ultimate issue. The ruling of the first Judge was an interlocutory order as a consequence of a plea in Bar in proceedings which were ultimately incomplete and remain so to this day, quite factually distinct from the facts and ruling in Rogers (above).

ABUSE OF PROCESS

"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court which exist to administer justice with fairness and impartiality may be converted to instruments of injustice or unfairness." "Walton v Gardiner (1993)177 CLR 378 at 392 – 393 per Mason CJ, Deane and Dawson JJ."

Circumstances amounting to an abuse of process will vary widely. That this court has jurisdiction to deal with an Application for a permanent stay is not in dispute I have ruled that the matter falls squarely within the criminal jurisdiction of this Court and that the doctrine of issue estoppel does not therefore arise. I have ruled that the findings and Order of the first Judge dissolved at the time of his recuse. I am not persuaded that there is any abuse of process in this matter.

CONCLUSION

A fresh information should be filed excluding the charges of attempted murder and a date for trial fixed immediately.

CONSEQUENT ORDERS

IT IS ORDERED THAT:

1. The application for a permanent stay be refused.
2. The matter be adjourned for mention on Monday 30 July 2007.
3. The prisoners be remanded in custody to 0900 on 30 July 2007.

J W LEWIS
Commissioner of the High Court