HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

SITTING AT Honiara

REGINA

V

WILLIE FAFOI

Hearing: 14 December 2010
Ruling: 30 December 2010 

For the Appellant: Mr. Robert Barry
For the Respondent: Mr. Sevuloni Valenitabua

Palmer CJ.

This is an appeal against a decision of Principal Magistrate Wilson ("PM Wilson") dated 15 February 2010 in which he ordered that the case against the Respondent be dismissed for want of prosecution.

Background facts. The Respondent had been charged for false pretence, that on 17 March 2007 he obtained $200.00 from Gabriel Lagunaruri with intent to defraud falsely pretending that it was going to be used to refuel the fire truck. He was charged on 29 August 2008 and made his first appearance at the Magistrates' Court in Auki on 11 September 2008. There were a total of twelve court hearings at the Magistrates' Court in Auki; the last one was on 15 February 2010. The matter came before PM Wilson at that hearing, who dismissed the case for want of prosecution. He held that the prosecution had not advanced the matter for nearly 18 months and that the delay amounted to an abuse of process.

There had only been one previous attempt it seems made to have the matter listed for trial on 1st October 2009. Principal Magistrate Gauli fixed a trial date for 16 November 2009. The matter however did not proceed on that day for several reasons. First, the presiding Magistrate (Magistrate A.M. David) did not have jurisdiction; he only had jurisdiction of a Class One Magistrate. Secondly, the accused appeared unrepresented and so was not ready to proceed. Thirdly, the Director of Public Prosecutions who had carriage of the case did not appear as he had not been informed of the trial date. Consequently a further adjournment was made. 

When the matter came before the court on 18 November 2009, the accused appeared without representation and asked for an adjournment on the ground that his Counsel was sick. The matter was then adjourned to 10 December 2009. At that hearing, the accused also appeared without representation and so the matter was further adjourned for mention to 7 January 2010 with the view to setting a trial date. Why the matter was not listed for trial on that day is unclear. Instead the matter was again adjourned for the same reasons, that the prosecutor had not received any files from the Professionals Standard Unit in Honiara and accused without his counsel. The presiding Magistrate should have fixed the matter for trial instead of another adjournment for mention. On the 5th February 2010, still no trial date was fixed and the matter adjourned to 15 February 2010 for mention. By then it was obvious that the court was making little progress with the case and ought to have fixed a hearing date. This was not done until 15 February 2010, but then an application to strike out was made by Counsel for the accused.

Appeal Grounds. Two appeal grounds have been advanced in this appeal: 

(i)	That the learned Magistrate erred in dismissing the charge for 'want of prosecution' as the matter was called for the purpose of mention only to fix a trial date; and

(ii)	The learned Magistrate failed to properly consider the whole circumstances of the matter, including the history of the matter and relied on inaccurate submissions made on behalf of the respondent.

The two issues raised in this appeal are: (i) whether the presiding Magistrate had power to dismiss a case for want of prosecution; and (ii) whether the presiding Magistrate erred in the exercise of his discretion to dismiss the case.

Powers of the Magistrates' Court. The Magistrates' Court is a creature of statute. It derives its powers from the Magistrates' Courts Act (cap. 20) and the Criminal Procedure Code (cap. 7). It has no inherent jurisdiction like the High Court. 

In Ross on Crime, referred to by Mr. Barry, the learned Author cites the case of Grassby v. The Queen in which Dawson J noted that there may be implied powers which the court may draw upon in the discharge of its judicial functions quite similar to those exercised by a superior court but more limited in extent. I quote:

"A magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ....Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but that they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is ...fundamental."

Mr. Barry correctly pointed out in his submissions that the closest thing to the power to dismiss for want of prosecution is contained in the procedure set out in section 187 of the Criminal Procedure Code ("CPC"). That section gives discretion to the Magistrates' Court to dismiss a charge, if the complainant does not appear unless he finds a proper reason for not doing so. 

Section 192 of the CPC also gives discretion to the court to dismiss a charge if the complainant fails to appear after an adjournment. In both instances, the discretion arises when the prescribed condition is fulfilled, that of the non-attendance of the complainant or his advocate. The court in both instances may decline to dismiss the charge for a proper reason. Apart from those defined powers set out in sections 187 and 192, the Magistrates' Court does not have jurisdiction to dismiss 'for want of prosecution'. 

Application to this case. When the matter was adjourned to the 15th February 2010 it was specifically for mention with the view to setting a trial date. Part of the orders of the Court stated that the defendant may apply to have the matter struck out at that time for want of prosecution. That part of the order assumed erroneously, that the Magistrates' Court had jurisdiction to dismiss an application for want of prosecution at the adjournment date. By stating that an application for dismissal for want of prosecution may be made, the presiding Magistrate exceeded his jurisdiction. 

A Magistrates' Court is at liberty to determine what should be done at each hearing. Its' primary role at each adjournment hearing is to take into account all relevant factors, carefully balance the interests of justice in the matter and make appropriate orders for the advancement of the matter before it. This may require that it consider the history of the case, the interests of the prosecution and the accused and the applicable law. By granting an adjournment it was giving opportunity to the parties to advance the case further based on its own merits and circumstances. 

I am satisfied in the circumstances of this case the presiding Magistrate exceeded his powers on 15th February 2010 when he considered an application for dismissal for want of prosecution when he should have considered setting a trial date for that was the purpose for the adjournment. He had no jurisdiction to entertain an application for dismissal at that point of time and erred when he did so. 

But even if he had jurisdiction to consider an application for dismissal at that point of time I am also satisfied he erred by considering irrelevant factors and thereby denied the prosecution the opportunity to pursue the case. Disclosures had already been made by prosecution to the defence from the outset, as early as 16 July 2009. The accused was represented at that hearing by a solicitor from the Public Solicitor's Office. It was also made known to the Court that the Office of the Director of Public Prosecution had carriage of the case and the police prosecutor appearing was doing so in her capacity as agent.

It was evident that on all occasions when the matter came before the court, prosecution was always represented and that the matter was adjourned for proper reason. When there was a delay of ten months it was because the court was not sitting (from September 2008 to July 2009). On other occasions when there was delay these were caused by the defendant either not turning up or being unrepresented. On other occasions, it was on the ground that prosecution did not have the file, yet there was a failure to appreciate that the matter was to be dealt with by the Office of the Director of Public Prosecutions and not the police prosecutor. For one reason or another, the court continued to adjourn the matter for mention when it ought to have set the matter down for trial and confine parties to a hearing date. The delay therefore can partly be attributed to the failure of the court to act promptly, take charge and control of the proceedings, manage it from the outset and fix the matter for trial as soon as possible when ready; and for most part of the time it was. By failing to do so, it perpetrated the belief erroneously, that prosecution was delaying the hearing of the case deliberately or through neglect. 

In his submissions in this appeal, Counsel Valenitabua for the Respondent argued that the presiding Magistrate had jurisdiction to entertain an application at that point of time for dismissal on the grounds of abuse of process as well. He relied on the statements of Lord Morris of Borth-v-Gest and Lord Devlin in Connelly v. Director of Public Prosecutions which described superior courts powers to:

(i)	suppress any abuse of its process and to defeat any attempt thwarting of its process;

(ii)	prevent abuses of its process and to control its own procedure, in a criminal court, in order to safeguard an accused person from oppression or prejudice; and 

(iii)	make and enforce rules of practice in order to ensure that the court's process is used fairly and conveniently by both sides. 

He submitted that those powers apply equally to the Magistrates' Court by virtue of Schedule 3 of the Constitution. 

In so far as those powers are necessary for the discharge of its functions as a court of limited jurisdiction and in the conduct of a matter before it to ensure that an accused person is secured from oppression or prejudice, those powers as described in Grassby v. The Queen (ibid), can be implied. 

The flaw in the argument in the circumstances of this case is in presuming that there had been an abuse of process and a failure on the part of prosecution to expeditiously prosecute the matter. The long delay in the prosecution of the case cannot be attributable alone to prosecution's failure. In his reasons, the presiding Magistrate said that nothing had been done by prosecution to advance the matter in nearly 18 months. That is not entirely correct, for he had overlooked the salient features and reasons advanced on each occasion for adjournment and erred in making a sweeping conclusion that prosecution had failed to advance the case and that it amounted to an abuse of process.

The second argument relied on by Counsel Valenitabua is that the presiding Magistrate had jurisdiction to dismiss the case on the ground of delay. Counsel relied on the statements of the learned Author in Blackstone's Criminal Practice (1992) in which it was held that a magistrate may stop a prosecution on the grounds of an abuse of process in the following circumstances:

(i)	Where there is clear evidence that the prosecution have manipulated or misused the process of the court so as to deprive the accused of the protection provided by the law or take unfair advantage of a technicality (deliberate delay); or 

(ii)	On a balance of probability, the accused has been or would be prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which was unjustifiable (inadvertent delay causing prejudice).

The flaw in relying on this authority is that the circumstances in which that power arose came from the provisions of section 127 of the Magistrates' Courts Act 1980 (UK) which required that an information was to be laid within six months from the date of commission of the offence whereas the circumstances in this case are different. There is no evidence to suggest that the prosecution were manipulating or misusing the process of the court to deprive the accused of the protection of the law or to take unfair advantage of any technicality or that the accused would be prejudiced in the preparation or conduct of his case. That case is distinguishable on its facts.

I have already touched on the duty of a Magistrate to ensure that each application for adjournment is properly considered and to determine the progress of the case. That an application for adjournment is made on the ground that no file had been received from the Office of the Director of Public Prosecutions does not mean that the court is obliged then to grant the adjournment sought. The presiding Magistrate had duty to decide in the circumstances whether to grant a further adjournment, whether it be a last adjournment for mention, or to proceed to have the case listed for hearing. If the matter is ready for listing for trial, which it was, then instead of adjourning the matter for mention he could have listed it for trial. 

I am not satisfied the submission of delay was such that it was unconscionable, inordinate or inexcusable to warrant the intervention of the court. I am satisfied the presiding Magistrate erred in the exercise of his discretion and thereby denied prosecution the opportunity to present its case. The appeal should be allowed and the matter remitted to the Magistrates' Court for re-listing for trial.

Orders of the Court:

1.	Allow appeal.

2.	Quash orders of the Magistrates' Court dated 15 February 2010.

3.	Remit matter to the Magistrates' Court at Auki to be re-listed for trial.

4.	Direct that the matter be called for mention/directions on Monday 17 January 2011 at 9.30 am at the Magistrates' Court, Auki.

The Court.