In Court With Assumpta Buchanan - Solomon Star News

In Court With Assumpta Buchanan

08 November 2017

Court rejects application to dismiss charges

The Magistrates Court has dismissed the applications for the dismissal of charges against medical practitioner and entrepreneur Dr Reginald Aipia and his American business consultant Eric W. Hagberg.

Principal Magistrate Ricky Iomea in his ruling yesterday said the Magistrates Court has no power under the law in a criminal proceeding to discharge a person accused of committal criminal offence at the pre-trial stage.

“The first available time when the Court, upon application by the defence, to consider whether there is sufficient evidence in support of an allegation is at the conclusion of the prosecution case, during a No Case to Answer Application and at the conclusion of the trial,” Mr Iomea said.

“That is after evidence for the prosecution and the defence had been concluded.

“In essence, the Court would have to first, hear evidence from both parties to see whether a charge is supported with reliable and credible evidence or not.

“To consider the defence case based on the three letters tendered in support of the application for discharge without any evidence properly adduced by the Crown through trial will be an exercise in contravention of the relevant sections of the Criminal Procedure Code that governs criminal proceedings in the court,” Mr Iomea said.

Mr Iomea added that the Magistrates Court is a creature of Statute and is a court of law, therefore it will not presume or speculate on the existence of facts not properly placed before the court in accordance with the rules of evidence.

He said in light of the arguments of the defence raised in support of the application for dismissal of charge and the Crown’s oral response, the Court is of the view that the Crown should, if that has not yet been done, thoroughly consider their evidence to see whether the inference they had drawn as submitted by the prosecutor based on the number of farms, is highly likely the only reasonable inference available to be drawn at a trial Court if this matter comes up for trial – that the farming was meant for commercial aquaculture.

“If the prosecution is of the view that in light of the evidence and the anticipated defence there is/are other inference (s) available consistent with innocence and in favour of the defence that would affect the prospect of securing convictions in relation to the charge then they are at liberty to utilise section 190 (2) (b) (i) or section 190 (2) (b) (ii) of the Criminal Procedure Code (CPC), which is a tool for withdrawal of charges by the Prosecution.

Lawyers for Aipia and Hagberg last week had submitted the application to discharge charges of engaging in commercial aquaculture without a valid or proper license against them or for the variation of their bail conditions when their matter came for a pre-trial conference.

Both accused were charged for allegedly engaging in commercial aquaculture without a valid licence contrary to section (43) (1) (h) read with section 56 (1) and (4) of the Fisheries Management Act 2015 and section 30 (a-d) of the Fisheries (Beche-de-mer) (Amendment) Regulations 2014.

Mr Ricky said the application for the dismissal of charge was never brought under any relevant section of either the Criminal Procedure Code or any other Act.

Nuatali Tongarutu of ANT Legal Service represents Mr Hagberg while Aipia is being represented by Bitibule Kaehuna of Rano & Company.

Ms Tongarutu submitted that the witness statements taken by Police which prosecution intend to rely on as their evidence against the two accused if this matter goes to trial did not show that the accused engage in commercial aquaculture.

She submitted that both accused denied that the farming was intended for commercial aquaculture but is an experimental trial project for spawning.

She further submitted that the establishment of the project was authorised by the Director of Fisheries by his letter dated 1 June 2017 addressed to Mr Aipia.

The court also heard during her submission, that the Solomon Islands Government (SIG) supported the trial or pilot project and letters from the Chief Fisheries Officer Aquaculture dated 23 September 2014 and Supervising Minister for the Ministry of Fisheries dated 27 June 2014 were tendered by consent to the court.

Mr Kaehuna submitted that the letters were endorsed letters from authorised officers for Aipia to carry out the pilot project.

He submitted that the project was never intended to be commercial at this stage adding that the beche-de-mers cannot be sold or traded without proper licence being issued.

Public Prosecutor Andrew Kelesi in response submitted the evidence they have so far shows that the beche-de-mers were taken from the wild and placed in the farms for spawning and breeding.

He agreed that there is no independent view to support the allegation that the beche-de-mers were meant for trading or selling but argued that it was the number of farms that prompted them to think that the beche-de-mers are meant for commercial.

Having dismissed the applications made for the dismissal of the charges against the two accused, Mr Ricky adjourned the matter to November 9.

This is for the defence to make applications for the variation of bail for the two accused.

The defence counsels have also informed the court and prosecutions of their intentions to make representations to the prosecutions in the meantime.

Aipia and Hagberg are accused of constructing beche-de-mer farms in the month of July 2017 without having a valid license.

Dr Apia is the founder and president of the Ontong Java Development Company while Hagberg from the United States of America, works a consultant for the company.

Hagberg started working during the initial stages of the construction of the farms up till its completion.

He was allegedly responsible for the setting up of the farms, reproducing beche-de-mer and managing the farms.

The duo were arrested and charged after a joint task force comprising of police and fisheries officers went to Ontong Java on 10 September 2017 and discovered farms of beche-de-mer.

Man who burns family home jailed

THE COURT has sent a man who burnt down his matrimonial home last year at a village in Gela, Central Province to two and a half years behind bars.

This was after Cecil Domo pleaded guilty to one count of arson.

Principal Magistrate Ricky Iomea in his sentencing remarks said Domo’s selfish and unlawful behaviour in setting the house on fire no doubt has deprived his wife (Complainant) of enjoying the shelter provided by the family home.

“The act also had deprived the complainant of some of her properties which include a solar panel, two cooking pots and a mattress,” Mr Iomea said.

Mr Iomea said Domo clearly had no regard or respect for properties of his wife and had deliberately decided to hurt the feelings of his wife because he was angry at her for being late to return home after a Christmas function.

He said Domo allowed the anger to control and take him beyond self-control.

“The reasons given by the accused for committing the offence cannot excuse or justify the accused’s unlawful act.

“The plea cannot be seen as an early plea as it was entered at the eleventh hour, the day supposed to be for the commencement of trial.”

Mr Iomea however said it still demonstrates remorse by the accused for his unlawful behaviour.

Having imposed the sentence term of two and a half years imprisonment, Mr Ricky also ordered that the sentence be backdated to when Domo was first remanded in custody at Rove Correctional Centre.

Domo set fire to his family home at around 9am of 3 November 2016 at Hagalu village, Big Gela.

The house was built and owned by both Domo and his wife.

The court heard Domo was drunk at the time of the offence and threatened anyone who attempts to put out the fire.

Domo first pleaded guilty to the arson charge in March this year and the matter was adjourned for sentencing submissions and mitigation.

When the matter returned to the court again, the issue of the ownership of the house was raised which resulted in this matter being further adjourned for prosecution to follow up on that issue.

Prosecution decided to maintain the charges despite confirming house was jointly owned by the accused and his wife.

Domo then entered a not guilty plea and the matter after going through a pre-trial conference set down for trial for 2nd to 3rd of October.

Domo then decided to change his plea again to that of guilty when the matter came to court for the commencement of the trial.

Public Solicitor’s Lazarus Waroka represented Domo while Public Prosecutor Rajah Patrick Abe represented the Crown.


Oto’s case back in court today

The matter of the government officer accused of obtaining more than $800,000 of public funds through dishonest tender will return to the court again today.

This is for a possible pre-trial conference on the case of Stephen Jude Oto.

Prosecution has been given time from the last adjournment to redo the charges and file the new charges to the court.

The redoing of the charges relates to the same issue also raised in relation to matter of the two former permanent secretaries’ matters of Henry Murray and Edmond Sikua, regarding the charges not being signed by a magistrate and of the form  “Notice of Offence Charged” form (NOOC) used by the Police to prefer the charges against the defendants are different from the “Charge (Compliant by a Public Officer)” Form 6 - Magistrates Court Act, as prescribed by the Chief Magistrate who formulated the Magistrates Courts (Forms) Rules 1992, in the exercise of the powers conferred on him under section 79 of the Magistrates Courts Act.

In her ruling to these issues recently, Ms Garo said despite these procedural irregularities, these irregularities can be rectified.

Oto is facing 11 counts of official corruption.

He was the first public officer to have been arrested by Taskforce Janus, a partnership between the Ministry of Police and Ministry of Finance, set up specifically to target fraud within the public service.

At the time of his arrest, Oto was the Financial Controller within the Ministry of Police and Correctional Services as well as a member of the ministry’s tender board.

Oto was charged after the Ministry of Finance and Treasury lodged a complaint with the police.

The prosecution alleged that on 26 March 2015, Oto was appointed as a member of the Ministry of Police National Security and Correctional Services Ministerial Tender Board.

A requirement of this appointment was that he familiarised himself with the processes set out in the Solomon Islands Financial Instructions.

It was alleged that between 1 December 2015 and 18 August 2016, Jahman Enterprise, a company Oto allegedly set up and owned, answered calls for tenders and had been awarded business contracts for service to the Ministry of Police, National Security and Correctional Services on 11 different occasions.

A number of these transactions have required Certificate of Registration of Business name from the Company Haus to be submitted together with the tender.

Police alleged Oto, on a number of occasions, supplied a falsified Certificate of Registration of Business name, removing his own name from this certificate and replacing it with the name Edward Laufooa, to conceal his identity.

His business Jahman Enterprise was alleged to have subsequently invoiced the Ministry of Police, National Security and Correctional Services, which had made payments totalling up to $817, 256.50 to Jahman Enterprises for these services.

Police further alleged that those payments were also alleged to have been made into an account which Oto is the sole signatory.

On a number of occasions, Oto had certified requisitions as the Accountable Officer and on occasions, had allegedly certified that goods and services had been received.