Bade v The Queen (Solomon Islands)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson,Lord Hodge,Lord Mance |
| Judgment Date | 08 June 2016 |
| Neutral Citation | [2016] UKPC 14 |
| Docket Number | Appeal No 0041 of 2016 |
| Date | 08 June 2016 |
| Court | Privy Council |
[2016] UKPC 14
From the Court of Appeal of the Solomon Islands
Privy Council
Lord Mance
Lord Wilson
Lord Hodge
Appeal No 0041 of 2016
Appellant
Douglas Hou
(Instructed by Public Solicitor, Government of Solomon Islands)
Respondent
Ronald Bei Talasasa
(Instructed by Director of Public Prosecutions)
(with whom Lord Wilson and Lord Hodge agree)
The applicant was on 27 May 2013 convicted of murder by the High Court of Solomon Islands and sentenced to a mandatory life sentence under section 2000 of the Penal Code (Solomon Islands) with a "recommendation" by judgment dated 5 July 2013 that he serve 15 years before being eligible for consideration for parole: [2013] SBHC 126. An appeal to the Court of Appeal against this sentence was dismissed on 9 May 2014: [2014] SBCA 13. Through his advocate, Mr Douglas K Hou, Public Solicitor (Public Defender) of Solomon Islands, he now applies to the Board for permission to appeal on the grounds that the imposition of the mandatory life sentence was unconstitutional and/or the making of a "recommendation", as opposed to a determination, of the punitive term to be served before the applicant became eligible to be considered for parole was likewise unconstitutional.
The first issue raised by this application is however one of jurisdiction. Does the Privy Council retain jurisdiction to grant special leave under the Judicial Committee Acts of 1833 and 1844 for an appeal in a criminal matter from the Court of Appeal of Solomon Islands. The Board is grateful for the comprehensive submissions received on this issue from the Public Solicitor (Public Defender) of Solomon Islands. The submissions rightly start from the premise that, since Her Majesty is The Queen of Solomon Islands, her jurisdiction in Council under the said Acts continues unless it has been removed expressly or by "necessary intendment" during the process involved in the independence of Solomon Islands on and after 7 July 1978.
Prior to independence, The Solomon Islands Courts Order 1975 (1975 No 1511) amended the Constitution of Solomon Islands to include a new Chapter IVA, which provided in section 65M for a High Court of Solomon Islands, for appeals to a Court of Appeal, defined as the Court of Appeal established for Fiji by the Constitution of Fiji, and for appeals to the Privy Council in certain cases as of right and in some other cases with the leave of the Court of Appeal.
Section 65M(3) further provided in familiar form that
"Nothing in this section shall affect any right of Her Majesty to grant special leave to appeal to Her Majesty in Council from the decision of any court in any civil or criminal matter."
It is well established that a provision in this form does not confer, but merely reflects the existence of, the Privy Council's jurisdiction under the 1833 and 1844 Acts to grant special leave.
Upon independence matters however changed. First, on 8 May 1978 the Solomon Islands legislature enacted a Court of Appeal Ordinance (later Act), though this was apparently only brought into effect on 1 December 1982. The Act provided for the establishment of a new Solomon Islands Court of Appeal. Section 11(1) provided that "an appeal shall lie" to this Court of Appeal in any civil cause or matter, other than those specified in subsection (2) where "no appeal shall lie".
Section 20 provided that a person convicted on a trial before the High Court "may appeal … to the Court of Appeal", while section 21 provided that the Director of Public Prosecutions ("DPP") "may appeal … to the Court of Appeal" where a person was tried before the High Court and acquitted on any ground of appeal which involves a question of law or where "in the opinion of the [DPP] the sentence imposed by the High Court is manifestly inadequate".
Then on 25 May 1978 the United Kingdom Parliament enacted the Solomon Islands Act 1978. Section 1(1) provided for the Islands' independence on and after 7 July 1978. By section 1(2) no United Kingdom Act of Parliament passed on or after Independence Day was to extend or be deemed to extend to Solomon Islands as part of its law. Section 1(3) provided in contrast that:
"Subsection (1) above shall not affect the operation in Solomon Islands of any enactment or any other instrument having the effect of law passed or made before Independence Day, or be taken to extend any such enactment or instrument to Solomon Islands as part of its law."
Section 8 provided:
"Her Majesty may by Order in Council make such provision as She thinks fit for and in connection with the disposal after Independence Day of any appeal to Herself in Council from a court having jurisdiction for the Solomon Islands protectorate, where leave to appeal has been granted before that day."
Further on 31 May 1978 Her Majesty by Order in Council made The Solomon Islands Independence Order 1978, to come into operation on 7 July 1978. By section 3(1) it revoked inter alia the Solomon Islands Courts Order 1975 and the Solomon Islands (Appeals to the Privy Council) Order 1975 ( SI 1975/1510), though by section 5(1) the revocation of such Orders was to be "without prejudice to the continued operation of any existing laws made, or having effect as if they had been made, under any of those Orders", and such existing laws were to have effect after 7 July 1978 as if they had been made in pursuance of a new Constitution, which was set out in its Schedule and which it provided by sections 2(1) and 4(1) was to come into effect on 7 July 1978.
The Board notes in passing that, contrary to the Public Solicitor's submissions on jurisdiction, the 1833 and 1844 Acts cannot be existing laws within section 5(1) of The Solomon Islands Independence Order 1978, since they were not made under, and did not have effect as if they had been made under, any of the Orders revoked by section 3(1) of that Order. The relevant provision in this area is section 76 of the new Constitution read with Schedule 3 to that Constitution, which the Board addresses below.
Section 12 of The Solomon Islands Independence Order 1978 provides:
"Legal proceedings
12(1) All proceedings commenced or pending immediately before the appointed day before the High Court or the Court of Appeal established by the existing Constitution may continue on and after that day before the High Court or the...
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