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Ngatu v Director of Public Prosecutions [2010] SBHC 28; HCSI-CC 447 of 2009 (24 June 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

ELISAH NGATU
Claimant

AND:

DIRECTOR OF PUBLIC PROSECUTIONS
Defendant

Date of Hearing: 20 May 2010
Date of Decision: 24 June 2010

Mr. Rano for claimant
Mr. Woods and
Mr. Muria (Jnr) for defendant

DECISION ON APPLICATION FOR PERMANENT STAY OF CRIMINAL PROCEEDING

Cameron PJ:

1. The claimant faces a charge of forgery in the Magistrates Court. He applies for a permanent stay of that criminal proceeding. The ground advanced is that his right to "a fair hearing within a reasonable time" under section 10(1) of the Constitution 1978 has been infringed, and he seeks redress in the form of a permanent stay under section 18(1). The basis of this ground is an assertion of undue delay and prejudice arising as a result.

2. A brief history of this matter is that on 26 August 2007 the claimant was charged with an offence of ‘False Assumption of Authority’. This related to a customary land case heard by the Marovo Local Court in 1974, at a time when the claimant was a clerk of that Court. It is alleged that in 1998 the claimant created a decision of the Marovo Local Court in relation to that earlier hearing by forging it. It is further alleged that the party (Ezekiel Mateni) who was awarded customary ownership of the land pursuant to the forged decision then used it to his advantage in a timber rights claim in the High Court in 2003 (CC 155/2003). Then in another claim in the High Court initiated by E. Mateni against the same party in 2007 (CC 38/2007), the party against whom he had used the alleged forged decision in the earlier case (153/2003) pleaded that such decision was a forgery.

3. That other party reported the matter to the police in Honiara on 14 August 2007. The claimant was interviewed by police on 26 August 2007 and was arrested, charged, and then released on bail. He appeared in the Magistrates Court in Honiara on 24 September 2007. The Magistrate was advised that Mr. Rano of Pacific Lawyers was to act as counsel for the claimant, and bail was granted and the matter was adjourned to 8 October 2007 to enable the claimant to brief his counsel.

4. Following the 24 September 2007 Court appearance, the claimant did meet with Mr. Rano and another lawyer, both of Pacific Lawyers.

5. On the next Court appearance on 8 October 2007 the claimant attended Court and while Mr. Rano did not himself appear, a Mr. John Kovi appeared on his behalf. The case was further adjourned to 5 November 2007 to enable disclosure of documents held by the prosecution to take place and bail was continued. The claimant was excused from attending on 5 November 2007, apparently as he did not wish to remain in Honiara longer than he needed to, and wished to return to his village in the Western Province. He was about 65 years old at the time and is an asthmatic, and said that the polluted air of Honiara did not suit his condition.

6. The claimant’s evidence is that upon being excused attendance for the next anticipated Court hearing of 5 November 2007, he then left Honiara for his village and "promised my lawyers that I would attend court when I am requested to be present" (para 8, sworn statement 4 March 2010). He also says that he was "informed by Mr. Zama [a lawyer from Pacific Lawyers] that he would inform me of the next hearing after 5 November 2007." (para 9, sworn statement 4 March 2010).

7. In the event, when the matter was next called in the Magistrates Court on 5 November 2007, there was no appearance from the claimant (he having been excused from attending) or his lawyers. On 30 November 2007, the Magistrate issued a warrant for the claimant’s arrest.

8. For reasons unexplained, that warrant was not executed until 27 October 2009 (some 2 years later), when the claimant was arrested at his village in Western Province and brought to Honiara on that day. It also appears that he appeared in the Magistrates Court in Honiara on that same day, and was represented by Mr. Rano. He was released on bail, and the matter adjourned to 30 October 2009. On 30 October 2009 a new charge of forgery was substituted for the earlier charge of ‘False Assumption of Authority’.

9. On 17 November 2009 this application to the High Court was made, seeking a permanent stay of the criminal proceeding in the Magistrates Court. No application for a stay has been made in the Magistrates Court, and pending a decision from this Court apparently the criminal proceeding in the Magistrates Court is simply being periodically adjourned.

10. The essence of the claimant’s application is that against the background of the time elapsed from the date of the alleged forgery (1998) to the initiation of the criminal proceeding (2007), a 2 year delay in prosecuting the criminal proceeding (November 2007 to October 2009) has had the effect that he can no longer receive a fair trial. In this respect he points to the death of Ezekiel Mateni in October 2008 (he being the party in whose favour the alleged forged decision was made), and says that this has deprived him of a key witness.

The Law:

11. As the law, I refer to the Court of Appeal case of Robu v. R SBCA 14, which sets out the principles to be applied in these cases. At para 15 of the decision the Court stated:

"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 the 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".

The Court went on to cite with approval extracts from the House of Lord’s decision in Attorney General Reference No. 2 of 2001 [2003] UKHL 68 to like effect.

12. Mr. Rano for the claimant argued that Robu’s case could be distinguished from the present case because on its facts a trial had already taken place at which the appellants were convicted of murder. That trial was disjointed in the sense that the case commenced in 1999, but then was adjourned part heard. The case then continued in 2005 and was concluded in that year. The reason for the case not being continued in the years 2000 to 2004 was because of the breakdown of law and order in the country during that time. The appellants appealed their convictions, arguing that the trial judge ought to have stayed the trial when it returned to court in 2005, and that by not doing so the appellants did not get a fair trial.

13. Mr. Rano submits that Robu’s case is thus different to the present case, in that in the present case no trial has yet taken place. Mr. Rano also submits that the High Court case of Kimisi v. Director of Public Prosecutions [1990] SBHC 91 is on all fours with the current case, as that case dealt with the issue of a stay prior to trial. Mr. Rano submits that Kimisi’s case was approved by the Court of Appeal in Robu’s case, and therefore should be followed.

14. What Mr. Rano’s submissions overlook is that in Robu’s case, the Court of Appeal was considering the conduct of the trial in the High Court and in particular whether the trial judge ought to have of his own volition stayed the trial in the circumstances. In so doing, the Court of Appeal, drawing partly from Attorney General Reference No. 2’s case, set out the tests to be applied by a trial judge in considering such applications prior to or at trial. That decision is of course binding on this court, and it is therefore wrong to suggest that the tests it laid down do not apply.

15. While Kimisi’s case was cited with approval by the Court of Appeal, that was only in relation to the passage in Kimisi which outlines the factors to be taken into account in these applications, which include the length of the delay, the reason for the delay, the defendant’s assertion of his right [to a fair hearing within a reasonable time], and any prejudice to the defence (para 17 Court of Appeal decision).

16. To the extent that Kimisi’s case may be read as laying down any principles which are contrary to the principles enunciated in Robu’s case, then Kimisi’s case does not represent the law in Solomon Islands. For the reasons I have given, the principles in Robu’s case represent the law of this country.

Length of Delay

17. I consider now each of those four main factors. The first is the length of the delay. That is two years (November 2007 to October 2009). In itself that is not an abuse of process, and such delay must be considered along with the other factors.

Reason for Delay

18. Secondly, the reasons for the delay. It is quite clear that this case was de-railed by the non appearance of the lawyers for the claimant at the Court hearing on 5 November 2007. It is also accepted on behalf of the claimant that his lawyer did not contact the Court about the matter following the non- appearance on 5 November 2007. At the same time, it is also accepted that the claimant made no attempt at all to contact his lawyers or the court over the two year period November 2007 to October 2009. He simply did nothing to ascertain the reason for the delay, choosing instead to simply remain in his village (para 16 claimant’s sworn statement 4 March 2010).

19. I consider that a combination of the non-action by the claimant’s lawyers and the failure of the claimant to make subsequent enquiries were such as to derail the normal progress of this case. While the delay so caused was undoubtedly exacerbated by the failure to execute the arrest warrant, it nevertheless lay within the means of the accused at all times to reactivate the matter by making a simple enquiry as to the position. Instead, he made a conscious decision to do nothing, no doubt in the hope that the matter would ultimately simply go away. In these circumstances I do not consider that the claimant is entitled to complain about the delay which ensued – he chose to take the ‘do nothing’ approach, despite his previous knowledge of the matter being regularly called in the courts while he was in Honiara, and cannot now legitimately complain about the consequences which flow from that.

Claimant’s Assertion of His Right

20. The claimant deposes "had the Prosecution swiftly dealt with the matter, the claimant would have asserted his right to a speedy trial".

21. As stated, the claimant chose the ‘do nothing’ option and must now accept the consequences of that.

Prejudice to the Claimant

22. The claimant asserts that he is prejudiced by the death in October 2008 of a ‘key witness’, Ezekiel Mateni. He deposes that ‘He is the person allegedly bribing me to forge the decision of the local court’ and ‘Had the prosecution diligently follow up with the prosecution of the case my trial would have been concluded before Mr Mateni died.’ (para 17 claimant’s sworn statement 4 March 2010)

23. Mr. Mateni was of course the party in whose favour the allegedly forged decision was made. There is no evidence as to how Mr. Mateni’s evidence may have helped in the defence of the criminal proceeding, in that even had the claimant been bribed to forge the decision that would afford no defence to the charge. I add that the claimant’s evidence makes it clear that Mr. Mateni was accessible both to him and his solicitors up to the time of his death, and there would have been ample opportunity to take a statement from him provided he was willing. The evidence is silent as to whether any such statement was taken.

24. As stated in Robu’s case, the test is whether ‘serious prejudice’ has been suffered to the extent that a fair trial cannot now be held. The claimant has failed to demonstrate that the absence of evidence from Mr. Mateni may seriously prejudice a fair trial.

25. As part of this consideration, I return to the fact earlier stated that the claimant has not made any application for a stay to the trial judge in the Magistrates Court. He has by-passed that Court and come directly to the High Court seeking relief. However, it is well established that such applications ought to be made to the trial judge, for the reason that the trial judge is in the best position to ascertain the effect of any alleged prejudice and how that may be ameliorated in terms of rulings as to the admissibility of evidence, directions and the like. In a passage from Attorney General Reference No. 2 case, quoted with approval in Robu’s case (para 15), the House of Lords in discussing whether a stay of proceedings would be appropriate, said:

"But this will not be the appropriate course if the apprehended unfairness can be cured by the exercise of the trial judge’s discretion within the trial process."

And in Attorney General’s Reference No. 1 of 1990 [1992] QB 630, the Court of Appeal stated, p.642:

"We would like to add to that statement of principle by stressing a point which is sometimes overlooked, namely that the trial process itself is equipped to deal with the bulk of complaints which have in recent Divisional Court cases founded applications for a stay."

26. For these reasons I consider this application ought to have been made to the trial judge in the Magistrate’s Court. Notwithstanding this, I have chosen to deal with it on its merits and on the limited evidence which has been provided to this Court.

Other Factors:

27. Another reason advanced by the claimant in support of the application is the fact that the prosecution has substituted a serious charge after the two year delay. The claimant asserts this is unfair in that he may have acted differently if he had previously known that he faced the more serious charge. However, the factual basis for the substituted charge is exactly the same as for the earlier charge, so there is no prejudice to the claimant arising from that. I therefore reject the contention that there has been a breach of section 10(2)(b) of the Constitution. I add that in this case I accept that the relevant delay ought to run from the time of the earlier charge and not the substituted one.

28. A further matter raised is the delay which occurred prior to the claimant being charged. While this is not directly relevant, it can be a factor in assessing the reasonableness or otherwise of delay after a charge is laid. In this case, though, the primary issue is relatively straight forward – either the evidence establishes that the claimant forged the document or it does not. That question is not likely to depend on the recollections of individuals, but even if it did, it is more likely to disadvantage the prosecution case than the defence case. As to the claimant’s access to documents, he deposed in a sworn statement dated 4 July 2003 (in CC155/2003) that in respect of the document the subject of the charge "I kept a copy of this judgment and most other judgments delivered by the Marovo Local Court in my file." Thus it would appear he is in possession of the primary documentation.

29. Further, there is no evidence to suggest that there was an undue delay between the discovery by the complainant party of the alleged forgery and the reporting of it to police, and the subsequent follow up by police.

Conclusion

30. For these reasons I dismiss the application for a permanent stay of the criminal proceeding.

31. As the delay has undoubtedly been exacerbated by the failure to execute the arrest warrant for a lengthy period, I direct that each party is to bear their own costs.

BY THE COURT

Justice IDR Cameron
Puisne Judge