Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Muaki v Director Public Prosecution [2022] SBHC 6; HCSI-CRC 563 of 2019 (8 March 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 563 of 2019

ANDREW MUAKI

V

DIRECTOR PUBLIC PROSECUTION

Date of Ruling: 8 March 2022.

Gray G for Defence
Kelesi A for Crown

RULING

Maina PJ:

A ruling on an application by the Director of Public Prosecution (DPP) to remove the DPP as a Respondent in the appeal by the Appellant against the decision of the Leadership Code Commission (LCC).

The Appellant appealed against the decision of the LCC on the charges of misconduct in office under section 24 of the Leadership Code (Further provisions) Act 1999.

The appellant was fined on 3 charges or information for a total sum of $10,000.00

Application by DPP

When the matter came to court on the 2^nd March 2020 the learnt DPP applied to the court to remove the office of the DPP as Respondent in the appeal.

This application involves a constitutional or legal issues and I directed that the counsels to make the submissions on this issue. It is so for the court to decide the issue before any further proceeding in the appeal.

When this matter was mentioned on 13^th October 2020, the court was informed that both counsels had submitted the written submissions on the matter and they will rely on them.

Counsel Kelesi A for DPP had filed his written submission on the 3^rd July 2020 and Gray G for Appellant had filed his written submission on 9^th September 2020 with the amended submission on 12^th October 2020.

Brief Background

The appellant Andrew Muaki was the former Special Secretary to the Prime Minister (“SSPM”).

The appellant was referred to the LCC for the misconduct in office and upon the investigation he was charged on three counts of sexually harassing of the female officers who were working in the Prime Minister’s Office.

On 18^th May 2016, the LCC heard the charges against the appellant and found him guilty on the charges or alleged acts of the misconduct in office. On the three charges of misconduct in office, the LCC fined the appellant a total sum of $10,000.00.

A judicial review case with the LCC’s decision was earlier filed in the High Court (LCC (HCSI-CC 469 of 2016)) but the presiding judge dismissed the review case at the conference stage of the case on 29^th March 2018.

The court saw that a remedy is provided by the statute, conveniently and available and at this stage the court cannot interfere as yet. And it is by way of an appeal under Section 24 (3) of the Leadership Code (Further Provision) Act 1999.

On the 7^th October 2019, the appeal naming the DPP as respondent for the LCC was filed in the High Court.

The Issue

Whether the DPP should be named a respondent of an appeal against the determination by the Leadership Code Commission in the exercising of its administrative powers under section 24 of the Leadership Code (Further Provision Act 1999.

The Leadership Code (Further Provision) Act 1999 repealed the Leadership Code (Further Provision) Act (Cap 86). And the appellant was charged for the misconduct of office under the (Further Provision) Act 1999.

Counsel Gray submits that, unlike the repealed Leadership Code (Further Provision) Act (Cap 86) under section 23 (2) which provide for Office of the Director of Prosecution may commence for misconduct in office, the Leadership Code (Further Provision) Act 1999 do not provide for such provision.

Counsel Gray described the (Further Provision) Act 1999 as the creator of this ambiguity or now raise in this application. He said it is so as (Further Provision) Act 1999 under section 24 (3) gives power for the High Court to hear and determine appeals against the decision of the LCC but the provision does not state in clear terms if the Solicitor General, Attorney General or DPP will represent the LCC.

Counsel Kelesi A for the DPP submitted that the naming of the DPP as Respondent for the LCC to this appeal prompted or apt when Keniapisia J dismissed the judicial review proceeding by the applicant under the Civil Procedure Rule 2007.

He stated that the matter may be appealed to the High Court pursuant to section 24 (3) of the Leadership Code (Further provisions) Act 1999.

The office of the Director of Public Prosecution is established by the Constitution and the powers are to institute and conduct, to terminate and take over criminal proceeding.

And section 91 (4) of the Constitution states that the Director of Public Prosecutions if he considers desirable to do so:

“section 91 (4)

• (a) to institute and undertake criminal proceedings,
• (b) to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; and
• (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken"

Further section 91 (8) of the Constitution also provide that the DPP shall be part of any appeal from any judgment in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of any such proceedings to any other court.

However, this provision under section 91 (8) the Constitution relate to criminal proceeding. For this proceeding though of criminal in nature it is an administrative proceeding under the Leadership Code (Further provisions) Act 1999.

The question of why the provision of section 23 (2) Leadership Code (Further Provision) Act (Cap 86) was repealed or the provision was omitted in (Further Provision) Act 1999 is clear but it is a matter of the Parliament. However, a prima facie fact is that LCC proceeding of the misconduct of the leaders is an administrative proceeding.

On the basis of being an administrative proceeding or more less discipline process, it may be the reason why the involvement of the DPP was left out or omitted in the Leadership Code (Further provisions) Act 1999.

With analogous or aspects of the LCC’s proceeding although is criminal in nature it is an administrative proceeding. The DPP office deals with criminal charges, appeals and matters as provided under the section 91 of the Constitution.

The LCC is an office established by statute and being a legal entity is entitled to be the Respondent to any case that challenge its decision.

It is therefore reasonable for the DPP not to be named as Respondent in this appeal by the appellant and the application is upheld.

Order of the Court

1. The application by DPP is upheld,
2. The Respondent on the appeal is accordingly amended and accordingly the Leadership Code Commission (LCC) is named as the Respondent in this appeal,
3. Appeal is to be served again to the Chairman of LCC or the office,
4. The issue of who should stand for LCC is a matter for the office and the Attorney General to sort.
5. Matter adjourned for mention on 28^th March 2022.
6. No further orders

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge