The High Court on Friday dismissed and discharged a man accused of raping a girl age between 13-15 after his case was delayed for over 11 years.
Chief Justice Sir Albert Palmer in his judgement described the case as excessive and inordinate delay in the prosecution of this matter.
He said the defence counsel is correct in his submissions that the charge is stale and should have not been filed.
“The matter should have been returned to the Magistrate’s Court once the decision to file a lesser charge had been preferred,” Sir Albert said.
“However, by the time the decision had been made, time had also run out.”
The accused’s lawyer Frank Brenan Kama of Public Solicitor’s Office made the application to have the defilement of a girl between 13 and 15 against his client to be dismissed as defective and for the amended information of rape to be stayed permanently.
Sir Albert in his judgement said the Director of Public Prosecutions (DPP)’s decision to enter a nolle prosequi (to no longer prosecute) for the defilement charge and file an amended information of rape in lieu, thereof, this case can be distinguished on the grounds that the original charge filed is void ab initio.
“It is void from the beginning for it was filed some 11 years later.”
He said on whether the amended information should be accepted, he noted that, first there has been excessive and inordinate delay in having the amended information of rape filed.
“It is unfair and unjust to have defective information be allowed to hang over the head of this accused for the past one year and seven months before a decision is made to have him tried in the High Court for rape.
“The delay is simply unacceptable.
He added that the rape charge initially raised in the Magistrate’s Court was not continued in the High Court after committal.
Sir Albert stated in his judgement that had the decision to charge him for defilement been made timely, he could have been dealt with promptly in the court below instead of having to wait so long to have this matter sorted out, 11 years later.
“The delay in having the correct information filed is unsatisfactory.
“I am satisfied the delay in progressing this case is unfair and unjust and it would not be right to allow the amended information to be re-instated after the decision had been made not to have him charged with rape on committal from the start.
“It is not only prejudicial to his defence but also amounts to an abuse of process,” Sir Albert said.
He then dismissed the charge of defilement and ordered that the amended charge of rape be stayed permanently.
The accused was ordered to be released from remand at the rising of the Court last Friday.
The accused was arrested and charged by the Police on or about 4 March 2010 for rape which he allegedly committed on 14 February 2010.
He was brought before the Magistrate’s Court on 19 March 2018 (8 years later) and entered a not guilty plea.
His matter was then committed to the High Court on that same day.
The court had heard that on his committal to the High Court, the DPP decided to file information of defilement instead of rape.
Sir Albert said the offence of defilement is a misdemeanor and so the matter should have been remitted back to the Magistrate’s court for determination immediately but that was not done.
He said this was not picked up by counsel and so the matter continued to be called for mention and directions in the High Court for the accused to be arraigned.
Sir Albert said this could not be done as the accused needed to be summon to appear and subsequently, he was arrested for failing to respond to his summons and was remanded in custody.
The court had heard that on 4 November this year, Mr Kama raised for the first time his objections to the charge of defilement.
He then filed his application and submissions were then made which resulted in this judgement.
By ASSUMPTA BUCHANAN
Solomon Star, Honiara
