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R v Kekea [2023] SBHC 147; HCSI-CRC 545 of 2022 (8 December 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 545 of 2022

REX

V

JUDE KEKEA

Date of Ruling: 8 December 2023

Luza F for the Crown
Kama F B for the Defendant

RULING

Maina PJ:

1. The applicant Jude Kekea is seeking an order to stay of proceeding on the charge of arson against him on the ground the prosecution abuse of process of the court when they changed the complainant to a new complainant.
2. The applicant was charged for arson contrary to section 319 of the Penal Code and his case is pending before the Magistrate Court.

Brief Background

3. The applicant was initially charge for arson and the charge was filed at the Magistrate Court on 29^th December 2021.
4. Upon the charge, the defendant came to the court on 14^th March 2022 and the court on application by the Defence granted an adjournment to seek further instruction from his client.
5. On 14^th April 2022, Counsel Kama for the Defendant wrote a letter the DPP and attention to Ms Luza with proposal to withdraw the charge against his client.
6. Prosecution on 26th May 2022 then filed an amended charge and with arraignment on 5^th August 2022, Defendant pleaded not guilty to the charge of arson.
7. The trail was fixed for 24^th – 28^th October 2022 however at the interim mention of the case on 12^th October 2022; the defence informed the court that they were pursing to file an application related to the amended charge. With that the trail to commence on 24^th October 2022 did not proceed.
8. A notice and application to the stay of the proceeding on the ground of abuse of process against applicant was filed on 20^th April 2023.

The Issue

9. Whether the act or any process of the prosecution to amend the particulars in charge is an abuse of process.

Applicant’s Case

10. Mr Kama for the applicant in his submission filed in his submission and stated that the prosecution had abuse the process of being prejudicial to the defendant when they amend the initial complainant to a new complainant after the representation of defence to withdraw or in pursuing the defence without prejudiced proposal to withdraw the charge,
11. He stated any prosecution’s proposal to make an application in court using section 118 of the Evidence Act 2009 will undermine the defendant’s Constitutional rights provided in section 10 (1) of the Constitution.
12. The new complainant will not be available as witness in trial thus unfair and prejudicial to the defendant.
13. Applicant Counsel asked the court to read the sworn statement of Applicant Jude Kekea filed 20/4/23.

Applicant submission

14. The applicant seeks the original jurisdiction of the High Court to order the stay of proceeding on the ground of the abuse of process.
15. The sworn statement of Applicant is noted and it contained as stated by the maker with the advice from his Defence Counsel. It concern the ownership of the house, which the applicant claim to have been given to him by his grandfather Jude Kekea.
16. With these, Counsel Kama made a representation to the Prosecution to withdrawn the charge of arson against his client. The prosecution did not apply withdraw the charge instead amended the particulars in the charge deleting the name of Georgina Kekea (owner) and replaced or substituted with Jude Kekea (father of Georgina Kekea deceased and grandfather of the accused Jude Kekea).
17. Counsel Kama for the applicant referred section 118 of the Evidence Act 2009 and section 10 (1) of the Constitution.
18. Counsel Kama argued that to proceed with the charge with the charge of arson against his client with the amended particulars of the offence is therefore be an abuse of the process.

Crown’s Response

19. In response to the application, Counsel for the Prosecution Luza submitted that this application for permanent stay of the proceeding is on the ground of abuse of process. However, the applicant do not provided the sufficient ground to enable the court to grant the stay of the proceeding. Counsel Luza stated the grounds and referred the case of Robu v Regina^[1] when the court of Appeal stated:
    • 15. It is well established and not disputed a trial judge may order a stay of proceedings either before or during trial provided an accused can show on balance of probabilities the delay complained of has resulted or will result in his suffering serious prejudice to the extent that he has not or will not receive a fair trial. In other words the continuation of the proceedings amount to an abuse of the process of the Court.
20. With the amendment of the charge, Counsel Luza submitted that the correctness of the information is the responsibility of the counsel for the prosecution^[2] .
21. Counsel Luza submitted the application for permanent stay of the proceeding is misconceived and it has no legal basis and the court should refused application.

Analysis

22. Section 10 (1) of the Constitution state:
    • “If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.
23. This constitutional provision uphold the principle of the presumption of innocence until a court is satisfied beyond reasonable doubt of the guilt of the accused. In other words if a charge is not withdrawn of an accused then the principles of the presumption of innocence and the standard of proof is beyond reasonable doubt continues or exist until the accused is found guilty of the offence he is charged with.
24. With the charge against Jude Kekea (grandson) it is not withdrawn by the Prosecution therefore his innocence remain until proved guilty beyond reasonable doubt.
25. There are noteworthy grounds that court stayed on abuse of process as inordinate delay, improper purpose or a breach of promise not to prosecute, the prosecution has misused the process or deprive the accused of a protection under the law^[3].
26. With the defence in anticipation of the prosecution to invoke or bring evidences of hearsay to court, it can be done under section 118 of the Evidence Act 2009. However, the provisos in the section should afford the qualification or types of general admissibility of hearsay. This matter should be left and dealt with at the appropriate time of the trail proper.
27. The application is stay the charge of arson on the ground of amendment the particulars by deleting the name of Georgina Kekea and replaced or substituted with Jude Kekea would not an abuse of process. It is so as the correctness of the information is the responsibility of the counsel for the prosecution.
28. Again if any similar matter arises in the court proceeding there is a provision in section 201 (1) of Criminal Procedure of variance between charge and evidence and amendment of charge at any stage of a trial before the close of the case for the prosecution.
29. I am not satisfied and the application of an order to stay the charge of arson against the applicant on the ground of abuse of process therefore is refused.

Order of the Court

1. The order to stay the charge of arson is refused.
2. The trail of arson against the accused to proceed in the Magistrate Court.
3. No further orders.

THE COURT
Hon. Justice Leonard R. Maina
Puisne Judge

^[1] [2006] SBCA 14, CA-CRAC 024 of 2005 925 October 2006)
^[2] Regina v Tobimaoma [2015] SBHC 45; HC-CRC 116 of 2004 and Hence v Regina (2012) SBHC 81; HC-CRC 255 of 2004.
^[3] Filia v R Crim. Case No. 311 of 2003 and Attorney General's Reference No. 1 of 1990 [1992] QB 630