A HIGH Court judge has stayed the order of a magistrate dismissing the case of a man charged in relation to the controversial beche-de-mer saga.
Principal Magistrate Jim Seuika had dismissed the charge against Dr Reginald Aipia for having being instituted beyond six months after the alleged commissioning of the crime, contrary to section 206 of the Criminal Procedure Code (CPC).
Mr Seuika made orders that Aipia’s case be discharged under Section 190 (2) (b) (i) of the Criminal Procedure Code and that the confiscated beche-de-mers be returned to him.
Aipia was charged for illegally removing the confiscated products from the Ministry of Fisheries, when the beche-de-mer ban was in place.
Justice Stephen Pallaras issued the stay order after the Office of the Director of Public Prosecution lodged an application in the High Court.
Crown prosecutor Andrew Kelesi, in submissions to the High Court, said the learned magistrate erred in law when he ordered the discharge of the hearing pursuant to Section 190 (2) (b) (i) of the Criminal Procedure Code (CPC) without any legal basis.
But Aipia’s lawyer Wilson Rano argued that in the absence of an appeal of review, the Court on the circumstance cannot grant a stay.
Mr Rano said whilst the Court has inherent Jurisdiction to grant a stay, they cannot be based on the prosecution’s application.
He argued that the jurisdiction is usually granted in exceptional cases.
Mr Rano added that the Order of the Magistrate’s Court whatever the nature, is a final order.
But Justice Stephen Pallaras said he thinks the case is exceptional, and decided that he should intervene.
He said the magistrate’s order is not final, but is subjected to review and to appeal.
“We cannot argue about technicalities that you seek to raise which really have no impact upon what I have got before me,” he told the defence lawyer.
“What I have before me is evidence or is material rather that indicates that the Magistrate was wrong significantly in two separate respects, no one has had justice done, it’s part of my function to make sure that justice in these courts is served and in an application for it to be taken back to the Magistrate Court so that justice maybe better done.
“I see no problem in jurisdiction that I have in doing that,” the judge told Mr Rano.
Justice Pallaras said Mr Rano conceded that at no stage has the prosecutor ever withdrawn their case and so the application of Section 190 is not enlivened.
“The magistrate was therefore wrong in my judgment, in dismissing the case based on that section.
“Furthermore, the application of Section 206 of the CPC, is in my judgment, clearly inappropriate.
“That section creates a procedure which may be adopted for certain limited offences, that is offences limited both in terms of the length of time of imprisonment that may be imposed or in terms of the amount of the fine that may be imposed.”
Justice Pallaras added that the fine limited in Section 206 is $100.
“This matter relates to an offence under Section 13 (a) of the Fisheries Amendment Regulation 209, in which I understand the penalty is a maximum fine of $100,000.
“The Principal Magistrate has therefore made two errors both in his reference to Section 190 and his reference to 206.
“And so the application for a stay of the Magistrate’s Ruling of October 31, on the discharge of the Respondent, is granted.
“The application for a stay against the learned Magistrate’s ruling for the return of the products subject to the charge seized by the officers of the Fisheries Department in conjunction with the police is granted.
“The application that the stay order remain in place until the review of the Magistrate’s Court is heard, is also granted.”
By ASSUMPTA BUCHANAN
