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                                                          Electronically Filed
                                                          Supreme Court
                                                          SCPW-17-0000532
                                                          21-NOV-2017
                                                          08:24 AM


       IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---


                 SI UFAGA MOANA, Petitioner,

                                vs.

      THE HONORABLE FRANCES Q. F. WONG, Judge of the
            Family Court of the First Circuit,
           State of Hawaii, Respondent Judge,

                                and

               STATE OF HAWAII, Respondent.
        (SCPW-17-0000532; CASE NO. 1FFC-17-0000575)


               JAYVAN C. CURIOSO, Petitioner,

                                vs.

   THE HONORABLE HILARY BENSON GANGNES, Judge of the
District Court of the First Circuit, Honolulu Division,
          State of Hawaii, Respondent Judge,

                                and

               STATE OF HAWAII, Respondent.
        (SCPW-17-0000171; CASE NO. 1DCW-17-0000868)


                        SCPW-17-0000532
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                         ORIGINAL PROCEEDINGS

                           NOVEMBER 21, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          Petitioner Si Ufaga Moana (Moana) seeks a writ of

mandamus directing the Honorable Frances Q. F. Wong to order his

release forthwith from custody in accordance with the

requirement that a defendant be released upon motion if a

preliminary hearing has not commenced within two days of the

defendant’s initial appearance.          See Hawaii Rules of Penal

Procedure (HRPP) Rule 5(c)(3) (2014).          Petitioner Jayvan C.

Curioso (Curioso) also seeks a writ of mandamus directing the

Honorable Hilary Benson Gangnes to order his release forthwith

from custody in accordance with the two-day preliminary hearing

requirement.

          Because the State respectively charged Moana and

Curioso (petitioners) by information and grand jury indictment

during the pendency of these petitions, obviating the need for

preliminary hearings, we ultimately deny the petitions as moot.

We nonetheless consider the legal issues at the heart of these

cases based on an exception to the mootness doctrine because

they are capable of repetition but would otherwise evade review.


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           Under our rules of court, when a delay in the

commencement of a preliminary hearing is not caused by a

defendant’s condition, action, or request and occurs without the

defendant’s consent, the keeping of a defendant in custody is

permitted only when compelling circumstances justify an ongoing

deprivation of liberty.     HRPP Rule 5(c)(3).       We now provide

guidance as to when circumstances are compelling for purposes of

denying a defendant’s motion for release from custody when the

defendant is held for a period of more than two days after

initial appearance without commencement of a preliminary

hearing.

                   I. FACTS AND PROCEDURAL HISTORY

             A. Moana’s Arrest and Preliminary Hearing

           On June 20, 2017, police arrested Moana for assault in

the second degree in violation of Hawaii Revised Statutes (HRS)

§ 707-711 (2014 & Supp. 2016).       On June 22, 2017, Moana was

charged by complaint with abuse of family or household members,

which was statutorily enhanced to a class C felony due to the

alleged incident occurring in the presence of a minor household

member under the age of 14.      HRS § 709-906(1), (9) (Supp. 2016).

The same day, Moana made his initial appearance before the

Family Court of the First Circuit (family court); the family




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court confirmed bail at $30,000 and issued an order scheduling a

preliminary hearing for June 26, 2017.1

            On the day of the preliminary hearing, the State

requested a continuance, informing the family court that the

complaining witness had “absented herself” from the proceeding.

The prosecutor stated that the complainant had expressed a

reluctance to come to court when she was served on the preceding

Friday by the prosecuting attorney’s investigators but did not

indicate that she did not intend to appear.           The prosecutor

explained that he had since been contacted by the complainant’s

aunt, who informed him that she had taken food to the airport to

give to the complainant and her child.          Based on this

information, the prosecutor stated that he was not sure whether

the complaining witness was present on the island.            He requested

additional time to locate and secure the complainant’s

cooperation, explaining that his office might obtain a material

witness order if she was found on the mainland and refused to

return voluntarily.      The prosecutor advised the court that,

     1
            HRPP Rule 54(a) (1996) states that the HRPP “apply to all penal
proceedings in all courts of the State of Hawaii, except as provided in” HRPP
Rule 54(b). Moana’s case did not fall within any of the exceptions listed in
HRPP Rule 54(b).

            Because Moana’s initial appearance occurred on a Thursday, the
scheduled hearing would have occurred within the two-day time limit as
calculated under HRPP Rule 45(a) (2012), which excludes holidays and
weekends. All references to time limits or elapsed time are computed in
accordance with this rule.




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because Moana’s initial appearance was on June 22, 2017, “the 30

days for preliminary hearing would run on Saturday, July 22nd”

and requested that the hearing be rescheduled before that date.2

           Moana moved to dismiss the complaint or, in the

alternative, for the family court to set aside bail and release

him on his own recognizance to the supervision of his church

pastor or mother, who were present in the courtroom.            The

prosecutor opposed Moana’s motion, citing the nature of the

offense.   He explained that the complainant was thirty-three-

weeks pregnant at the time Moana allegedly bit and punched her,

causing injury to her ear and a possible concussion.            He further

stated that the argument leading to the incident arose because

the complaining witness asked for money to buy food for her and

Moana’s two-year-old child.       The prosecutor asserted that the

child was present during the events and Moana allegedly threw

Lego-style blocks at the child’s head, causing bruising.3             He

also pointed to Moana’s 2014 arrest for abuse of the same

complaining witness, contending that the alleged attack was an

     2
            HRPP Rule 5(c)(3) requires courts to schedule a preliminary
hearing within thirty days of a defendant’s initial appearance “if the
defendant is not in custody.” If a defendant has been “held in custody for a
period of more than 2 days after initial appearance without commencement of a
defendant’s preliminary hearing,” the rule mandates the defendant’s release
upon his or her own motion. This provision is subject to several narrow
exceptions, discussed infra.
      3
            The prosecutor explained that the State intended to pursue
misdemeanor child abuse charges against Moana in a separate proceeding.




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escalation of violence toward the individual and that Moana

might be a danger to her.       Lastly, the State argued that there

had been “some obstruction” from Moana’s family during the

investigation, making release into their custody inappropriate.

Taken together, the State concluded, these factors were

compelling reasons to continue the hearing and to keep Moana in

custody.

           The family court granted the State’s motion for a

continuance and denied Moana’s motion for dismissal of the

complaint.    Seemingly relying on the State’s assertion regarding

the thirty-day period in which a preliminary hearing must be

held, the court noted that the “hearing [had been] set very

expeditiously within the 30-day limit,” which left the court

free to continue it without legal obstacle.

           With respect to bail reduction, the family court noted

several factors guiding its discretion in setting or modifying

bail, including Moana’s criminal history, the nature of the

offense, and the vulnerable nature of the complainant and their

child.4 The prosecutor asked for clarification regarding whether


     4
            The family court also expressed general concern regarding
individuals who threaten or otherwise attempt to persuade a witness not to
testify, referencing an unrelated recent news story. Because the parties did
not allege such coercion and the record does not reveal any linkage of the
news story to the facts of the case, we do not address the court’s general
concern.




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these findings relating to bail also constituted compelling

reasons for the continuance and for keeping Moana in custody, to

which the court answered affirmatively.

             The family court confirmed bail at $30,000 and

scheduled the continued preliminary hearing for July 13, 2017,

which was 15 days after Moana’s initial appearance.              The court

informed the prosecutor that it had intentionally left time

before the presumed 30-day deadline for another continuance if

necessary, but it went on to warn that “the next time . . . if

the complaining witness fails to appear . . . [the State]

need[s] a lot more information than what somebody might have

said.”     Prior to the continued hearing date, Moana filed with

this court a petition for a writ of mandamus.

               B. Curioso’s Arrest and Preliminary Hearing

             Police arrested Curioso on March 10, 2017, for abuse

of family or household members, HRS § 709-906 (2014 & Supp.

2016).     On March 13, 2017, Curioso was charged by complaint in

the District Court of the First Circuit (district court) with

kidnapping, HRS § 707-720(1)(d) (2014), terroristic threatening

in the first degree, HRS § 707-716(1)(e) (2014), and abuse of

family or household members with a statutory enhancement to a

class C felony based on the charged conduct, HRS § 709-906(1),

(8).    Bail was set at $150,000 in the aggregate, and a

preliminary hearing was scheduled for March 15, 2017.
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              On the day of the preliminary hearing, the prosecutor

requested a continuance to March 21, 2017, to obtain a Tagalog

interpreter for the complainant, for whom English was a second

language.      Curioso objected and moved for release on his own

recognizance or, in the alternative, a reduction in bail.               The

court denied Curioso’s requests and granted the State’s motion

for a continuance.        The court explained that the State’s request

was “reasonable” given that an interpreter was “necessary for

the witness to give testimony” and the State was otherwise ready

with its witnesses.        The preliminary hearing was rescheduled by

the court to March 21, 2017, which was six days after Curioso’s

initial appearance.5        On March 16, 2017, Curioso filed a petition

for a writ of mandamus.

                 II. THE PETITIONS FOR WRITS OF MANDAMUS

              Moana and Curioso argue that the judges in their

individual cases violated HRPP Rule 5(c)(3) by denying their

respective motions for release on their own recognizance.               This

rule requires that a court release a defendant upon motion “if

the defendant is held in custody for a period of more than 2

days after initial appearance without commencement of a

defendant’s preliminary hearing.”           HRPP Rule 5(c)(3).      However,

      5
              The period also included a weekend, which is not figured into
this total.    See supra, note 2.




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the State may maintain custody of a defendant when the delay is

caused by the defendant or occurs with the defendant’s consent.

Id.   Release is also not required when the failure to commence a

timely preliminary hearing is attributable to a “compelling fact

or circumstance” that would preclude determination of probable

cause or commencement of the hearing or would render the

defendant’s “release to be against the interest of justice.”

Id.

            In his petition for a writ of mandamus, Moana argues

that a preliminary hearing did not commence within two days from

his initial appearance, obligating the family court to release

him upon his motion.       Moana states that the court appeared to

base its ruling denying his release on a finding of a compelling

fact or circumstance.       He disputes, however, that compelling

reasons existed to hold him in custody under any of HRPP Rule

5(c)(3)’s exceptions.       In its response, the State argues that

the court properly found compelling reasons to keep Moana in

custody, including Moana’s criminal history, the nature of the

alleged offense, and the vulnerable nature of the complainant

and their child.

            In his petition, Curioso similarly argues that a

preliminary hearing did not commence within two days of his

initial appearance and that none of HRPP Rule 5(c)(3)’s

exceptions justified his continued detention.            He asserts that
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the State’s failure to obtain an interpreter for the complainant

was neither a compelling circumstance precluding the

commencement of a preliminary hearing within two days of his

initial appearance nor one rendering his release against the

interest of justice.     He points out that the State had five days

to speak with the complainant following his arrest to determine

if an interpreter was needed for the preliminary hearing.

          The State responds that it diligently attempted to

find an interpreter as soon as the complainant requested one.

In a declaration attached to the State’s response, the

prosecutor who requested the continuance avers that her review

of case materials prior to the hearing did not reveal a need for

an interpreter and that she was not informed of the request

until the morning of the scheduled preliminary hearing.            She

further avers that the State’s victim witness advocate made

calls to ten different interpreters but was unable to arrange

one for the scheduled time.      The prosecutor also states that she

was unable to convince the complainant to proceed without an

interpreter.   The prosecutor does not aver that any of this

information was placed on the record on the date of the

scheduled hearing.

          The State asserts that the lack of an interpreter to

aid the complainant in her testimony constituted a compelling

circumstance that justified the district court’s decision to not
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release Curioso.     In support of its argument, the State points

to this court’s repeated pronouncements regarding the

fundamental importance of individuals involved in litigation

understanding the proceedings and being understood in turn.

                            III. DISCUSSION

                               A. Mootness

          As a threshold matter, we address whether the merits

of the petitions are properly considered by this court.            We have

long adhered to certain “prudential rules of judicial self-

governance ‘founded in concern about the proper--and properly

limited--role of the courts in a democratic society.’”            Kona Old

Hawaiian Trails Grp. v. Lyman, 69 Haw. 81, 87, 734 P.2d 161, 165

(1987) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)); Cty.

of Haw. v. Ala Loop Homeowners, 123 Hawaii 391, 405, 235 P.3d

1103, 1117 (2010).    Among these is the doctrine of mootness,

which typically limits our rulings to “live controvers[ies] of

the kind that must exist if courts are to avoid advisory

opinions on abstract propositions of law.”         Kona, 69 Haw. at 87,

734 P.2d at 165 (quoting Hall v. Beals, 396 U.S. 45, 48 (1969)).

Accordingly, we will generally refrain from deciding cases in

which we can no longer grant the relief a party seeks.            Ala Loop

Homeowners, 123 Hawaii at 405, 235 P.3d at 1117 (citing




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Kahoohanohano v. State, 114 Hawaii 302, 332, 162 P.3d 696, 726

(2007)).

           When a defendant is indicted or charged by criminal

information, a preliminary hearing need not--and, under our

rules, cannot--be conducted.       HRPP Rule (5)(c)(1) (2014).6        This

is because a complaint and preliminary hearing, indictment, and

criminal information are separate, parallel methods by which a

felony prosecution may be initiated.          See Haw. Const. art. I, §

10; HRPP Rule 7(a)–(b) (2012).        The “real purpose” of a

preliminary hearing is to confirm that probable cause exists to

hold a defendant in custody, “and no purpose remains for” the

hearing when probable cause is established through another

mechanism, including indictment.          Chung v. Ogata (Ogata I), 53

Haw. 364, 366, 493 P.2d 1342, 1343 (1972) (citing State v.

Tominaga, 45 Haw. 604, 372 P.2d 356 (1962)).           We have thus held

that both a defendant’s right to a preliminary hearing and a

trial court’s jurisdiction to conduct such a hearing are cut off

by an indictment, even when it is returned after the continuance

of the preliminary hearing.       Chung v. Ogata (Ogata II), 53 Haw.

395, 395, 495 P.2d 26, 26 (1972); Tominaga, 45 Haw. at 610, 372

     6
            HRPP Rule (5)(c)(1) states that “the court shall schedule a
preliminary hearing, provided that such hearing shall not be held if the
defendant is indicted or charged by information before the date set for such
hearing.” (Emphasis added.)




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P.2d at 360.7    The same would logically hold true for an

information, by which probable cause may also be established.

See HRS § 806-85 (2004).

            On July 7, 2017, this court issued an order directing

the State to respond to Moana’s petition for mandamus.             The

State filed a timely answer on July 10, 2017.           The following

day, prosecutors charged Moana by felony information, cutting

off his right to the continued preliminary hearing two days

before it was scheduled to take place.8         Similarly, this court on

March 17, 2017, ordered the State to respond to Curioso’s

petition.    The State filed a timely answer on March 20, 2017--

the day before Curioso’s continued preliminary hearing.             The

next day, the State obtained a grand jury indictment of Curioso,




     7
            Tominaga and the two Ogata cases were decided prior to 1977, when
preliminary hearings and indictments were governed by the District Court
Rules of Penal Procedure (DCRPP) and Hawaii Rules of Criminal Procedure
(HRCrP). The HRPP are substantially modeled after the DCRPP and HRCrP,
however, and the holdings of Tominaga and the two Ogata cases are not
undermined by the adoption of the HRPP. See infra (discussing the history
and adoption of HRPP Rule 5(c)(3)).
      8
            Unlike in Curioso’s case, in which the State filed a notice
informing this court of the defendant’s indictment, the State did not notify
this court that it had charged Moana by information. Only research of the
family court docket by this court revealed the supervening charge. Although
Hawaii Rules of Evidence (HRE) Rule 201 (1980) permits us to take judicial
notice of such records on our own accord, we remind litigants that their duty
of candor toward this tribunal includes a responsibility to disclose material
facts that may affect the outcome of a case, including those facts that would
render the case moot. See AIG Haw. Ins. Co. v. Bateman, 82 Hawaii 453, 460,
923 P.2d 395, 402 (1996).




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which effectively blocked his preliminary hearing from

proceeding hours before its scheduled commencement.

          The petitioners’ rights to preliminary hearings--and

release prior to those hearings--were extinguished when probable

cause to hold them in custody was determined through other

mechanisms.    Indeed, had the judges granted the petitioners’

motions for release, the information and indictment would have

formed independent legal bases for returning the petitioners to

the State’s custody.     We are therefore compelled to deny the

petitions as moot because we cannot provide the relief the

petitioners seek.

          This is not the end of our inquiry, however.            We have

recognized exceptions to the mootness doctrine when its

application would defeat its own purpose of preserving the

judiciary’s proper role in a democratic society.           See, e.g.,

State v. Tui, 138 Hawaii 462, 468, 382 P.3d 274, 280 (2016)

(applying “capable of repetition but evading review” exception

to mootness); Hamilton ex rel. Lethem v. Lethem, 119 Hawaii 1,

7, 193 P.3d 839, 845 (2008) (adopting collateral consequences

exception to mootness); Doe v. Doe, 116 Hawaii 323, 326, 172

P.3d 1067, 1070 (2007) (applying public interest exception to

mootness).    Notwithstanding our normal reluctance to rule

outside of the context of a live controversy, this court will


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resolve the merits of a claim for which it cannot grant relief

when the alleged injury is capable of repetition but by its

nature will evade appellate review.9         Tui, 138 Hawaii at 468,

382 P.3d at 280.     This often occurs when a class of injury is

brief enough that “the passage of time would prevent any single

plaintiff from remaining subject to the restriction complained

of for the period necessary to complete the lawsuit.”             Id.

(quoting Lethem, 119 Hawaii at 5, 193 P.3d at 843).

           These petitions fall within this exception to the

mootness doctrine.      The two cases demonstrate that the

continuance of a preliminary hearing beyond the two-day limit

that HRPP Rule 5(c)(3) sets for defendants in custody is an

event capable of repetition.        Yet the coinciding determination

by the district or family court of whether to release a

defendant will nearly always evade appellate review under

conventional notions of mootness.         As discussed, a determination

of probable cause renders the issue moot by eliminating an

appellate court’s ability to grant an effective remedy for the

alleged injury.     This determination would occur when a


     9
             Although the “capable of repetition, yet evading review”
exception has “merged at times” with the similar public interest exception to
the mootness doctrine, “they are, in fact, ‘separate and distinct.’” Doe,
116 Hawaii at 327 n.4, 172 P.3d at 1071 n.4 (quoting Kahoohanohano, 114
Hawaii at 333 n.23, 162 P.3d at 727 n.23).




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rescheduled preliminary hearing is conducted in full, leaving

only the brief duration of the continuance to obtain legal

redress.      But even when this court stands ready to expeditiously

resolve a challenge during this brief period, the State may

bypass the court’s review by filing an information or obtaining

a grand jury indictment.10          Because release decisions under HRPP

Rule 5(c)(3) would otherwise be effectively unreviewable, we

address the challenge the petitions raise in order to provide

guidance to the district and family courts--although we are not

able to grant the petitioners the release from custody they

seek.

           B. HRPP Rule 5(c)(3)’s Release Mandate and Its Exceptions

              Petitioners argue that HRPP Rule 5(c)(3) required the

judges in their cases to grant their motions for release from

custody.      We review a trial court’s interpretation of court

rules de novo.       See Enos v. Pac. Transfer & Warehouse, Inc., 80

Hawaii 345, 349, 910 P.2d 116, 120 (1996).

              HRPP Rule 5(c)(3) provides in full as follows:

              (3) TIME FOR PRELIMINARY HEARING; RELEASE UPON FAILURE OF TIMELY
              DISPOSITION. The court shall conduct the preliminary hearing


      10
            Hawaii Rules of Appellate Procedure (HRAP) Rule      21(c) (2006)
requires that respondents be given an opportunity to answer       prior to a court
granting a petition for a writ of mandamus. This procedure        provides
notification to the State of this court’s pending review of       an HRPP Rule
5(c)(3) determination and affords an opportunity to file an       information or
obtain an indictment before the court may rule.




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           within 30 days of initial appearance if the defendant is
           not in custody; however, if the defendant is held in
           custody for a period of more than 2 days after initial
           appearance without commencement of a defendant’s
           preliminary hearing, the court, on motion of the defendant,
           shall release the defendant to appear on the defendant’s
           own recognizance, unless failure of such determination or
           commencement is caused by the request, action or condition
           of the defendant, or occurred with the defendant’s consent,
           or is attributable to such compelling fact or circumstance
           which would preclude such determination or commencement
           within the prescribed period, or unless such compelling
           fact or circumstance would render such release to be
           against the interest of justice.

HRPP Rule 5(c)(3) (emphasis added).        Thus, if a preliminary

hearing has not commenced within two days of the initial

appearance of a defendant held in custody, the rule directs

courts to release the defendant upon his or her own motion.

This general requirement is subject to three exceptions,

however.   Release is not mandated when the failure to conduct a

preliminary hearing within the prescribed time frame resulted

from some action or condition of the defendant, upon the

defendant’s request, or with the defendant’s consent.            Release

is also not required when a “compelling fact or

circumstance . . . preclude[d]” the hearing from commencing or

probable cause from being determined.        Lastly, HRPP Rule 5(c)(3)

allows a court to deny a defendant’s motion for release when a

“compelling fact or circumstance” would make the release

“against the interest of justice.”

           The State does not argue that either judge relied on

HRPP Rule 5(c)(3)’s first exception when denying the petitioners


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their release.11    Rather, the State contends that the respective

courts found “compelling circumstances” that justified the

continued detention of the petitioners.          The State does not

specify which compelling circumstances exception of HRPP Rule

5(c)(3) applies, and it is not apparent from the context of the

courts’ rulings.     We therefore consider each of these exceptions

in turn.

                 1. HRPP Rule 5(c)(3)’s Second Exception

            HRPP Rule 5(c)(3)’s second exception permits the

continued detention of a defendant when “compelling” facts or

circumstances “preclude” the determination of probable cause or

the commencement of a preliminary hearing within the prescribed

two-day period.     The HRPP does not define “preclude” or

“compelling.”     See HRPP Rule 2.3 (2012).12       “It is well

established that the interpretation of rules promulgated by the

supreme court involves principles of statutory construction.”


      11
            We note that HRPP Rule 5(c)(3)’s first exception specifically
provides that the release rule does not apply when the failure of the
probable cause determination or commencement of the preliminary hearing is
caused by the action of the defendant. In other words, if the defendant’s
conduct, for example, has caused a witness to not appear, release from
custody is not required, and a compelling circumstance is irrelevant. In
this case, however, the State did not contend at the hearing or in response
to the petition that Moana engaged in any actions following the offense to
cause the witness not to appear.
      12
            The HRPP cross-reference Hawaii Electronic Filing and Service
Rules (HEFSR) Rule 1 (2015) for definitions, but neither “preclude” nor
“compelling” is defined in HEFSR Rule 1.




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State v. Bohannon, 102 Hawaii 228, 240, 74 P.3d 980, 992 (2003).

The history and structure of HRPP Rule 5(c)(3) may therefore

guide our understanding of these terms.         See Morgan v. Planning

Dept., Cty. of Kauai, 104 Hawaii 173, 185, 86 P.3d 982, 994

(2004).

                 a. The History of HRPP Rule 5(c)(3)

          Prior to 1977, two sets of rules governed Hawaii

courts in criminal cases: the Hawaii Rules of Criminal Procedure

(HRCrP) and the District Court Rules of Penal Procedure (DCRPP).

The HRCrP were promulgated in 1960 to “govern the procedure in

the courts of the State in all criminal proceedings.”            HRCrP

Rule 1 (1960).    Although HRCrP Rule 5(d)(1) (1960) provided a

preliminary hearing to a defendant charged with a felony by

complaint, the HRCrP neither specified a deadline by which such

a hearing was to be conducted nor entitled the defendant to

release when the hearing was not timely held.          Rather, the rules

required only that courts conduct the hearing “within a

reasonable time.”    HRCrP Rule 5(d)(2) (1960).        HRCrP Rule 5 did

not further specify the parameters of what constituted a

“reasonable time,” and the rule was likewise silent on the

remedy should the preliminary hearing not be held in a timely

manner.




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           In November 1971, this court adopted and promulgated

the DCRPP, which “govern[ed] the procedure in the district

courts of the State in all penal proceedings.”13           DCRPP Rule 2

(1972).   DCRPP Rule 25(b) (1972) functioned much the same as the

version of HRPP Rule 5(c)(3) now in effect.           Under DCRPP Rule

25(b), a defendant charged with a felony in district court who

was held in custody was entitled to a preliminary hearing within

forty-eight hours.      If more than forty-eight hours passed

without either a “disposition of the charge” or “commencement of

a hearing,” the district judge was required to release the

defendant unless the defendant’s release was prohibited by law

or the delay was due to the defendant’s “request, action or

condition” or “occurred with [the defendant’s] consent.”             DCRPP

Rule 25(b)(1), (2).      Release of the defendant was also not

required if the court “was satisfied that the State ha[d] shown

good cause why an order of release should not be issued.”              Id.

(emphasis added).     Additionally, the rule specified that “[s]uch

good cause must consist of some compelling fact or circumstance

which would preclude disposition of the charge within the

     13
            The DCRPP superseded the HRCrP in district courts, in which the
new rules applied when their application was not limited or modified by other
laws. DCRPP Rule 2 (1972). The HRCrP were left intact in all other courts.
See Ogata I, 53 Haw. at 368, 493 P.2d at 1345 (“Those rules apply only to
proceedings in the district courts and before district judges. No provision
thereunder applies to proceedings in the circuit courts . . . . [T]he
circuit courts are governed by [the] H.R.Cr.P.”).




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prescribed period or would render such release to be against the

interest of justice.”     Id. (emphasis added).

          Thus, under DCRPP Rule 25(b), a defendant in custody

who was charged with a felony and did not receive a timely

preliminary hearing was entitled to release unless, inter alia,

the State could demonstrate the existence of “good cause,”

defined by the rule as a “compelling fact or circumstance” that

either (1) precluded the hearing from being held within the

forty-eight-hour window, or (2) rendered the defendant’s release

against the interest of justice.         Id.

          In 1977, the Hawaii Rules of Penal Procedure (HRPP)

were adopted to replace the HRCrP and the DCRPP and to provide a

comprehensive, unified set of rules governing criminal procedure

in Hawaii.   See Comm. for Penal Rules Revision of the Judicial

Council of Haw., Proposed Hawaii Rules of Penal Procedure at i-

ii (June 1975) (stating that the HRPP were “intended to govern

penal procedure in all of the courts” and “will supersede both

the [HRCrP] and the [DCRPP]”).        In crafting the HRPP, the

drafters sought to “retain the present rules [of the HRCrP]

wherever justified.”     Id. at ii.      The Penal Rules Revision

Committee (the Committee) declined to retain the substance of

HRCrP Rule 5 regarding preliminary hearings, however, in favor

of a rule modeled after the more-protective DCRPP Rule 25.


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Under a proposed draft of the HRPP transmitted to the Judiciary,

courts were required to conduct a preliminary hearing for a

defendant in custody on felony charges, and, “if the defendant

[was] held in custody for a period of more than 4 days after

first appearance without either a determination of probable

cause or commencement of a hearing thereon,” the defendant was

entitled to release.     Id. at 10—11.     The proposed rule retained

two of DCRPP Rule 25’s exceptions, permitting courts to deny

release if the failure to timely conduct or commence a

preliminary hearing (1) was caused by “the request, action or

condition of the defendant or occurred with his consent” or (2)

was attributable to “some compelling fact or circumstance which

would preclude [the probable cause] determination or

commencement within the prescribed period.”          Id. at 11.

           HRPP Rule 5 as adopted and promulgated by this court

did not incorporate the Committee’s proposed departures from

DCRPP Rule 25, including the extended four-day time limit for

holding a preliminary hearing when a defendant is held in

custody.   See HRPP Rule 5(c)(2) (1977).        The court instead

retained the forty-eight-hour time limit and the exception

permitting the continued confinement of a defendant when

compelling circumstances rendered release against the interest

of justice.   See id.    The rule has remained substantially the

same in the years since.
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          The history demonstrates this jurisdiction’s strong

commitment to protecting defendants held in custody by providing

a prompt preliminary hearing.       The Committee first rejected the

more flexible “reasonable time” standard contained in the HRCrP

when the DCRPP were promulgated, instead establishing a firm

deadline subject to few exceptions.         Thus, an approach based on

“reasonableness” that would have weighed the State’s

administrative or prosecutorial needs against the hardship of

the defendant was rejected, and instead the Committee

recommended a proposed rule under which the rights of the

defendant were highly protected.         This intention was reaffirmed

when the Committee modeled Rule 5 in the proposed draft of the

HRPP after the more protective DCRPP rule, notwithstanding its

otherwise stated intention to “retain [the HRCrP] wherever

justified.”    Proposed Hawaii Rules of Penal Procedure at ii.

The commitment was again confirmed when this court adopted and

promulgated the HRPP, strengthening Rule 5’s protections for in-

custody defendants beyond those contained in the proposed draft

of the Rule by reducing the prescribed time frame for

commencement of the preliminary hearing from four days to forty-

eight hours.

          The implication from the history of HRPP Rule 5 is

clear: there is a strong presumption that a defendant should be

released upon motion if a preliminary hearing has not commenced
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within two days, and holding a defendant for a longer period

without a preliminary hearing is permissible only in very

limited situations.     Indeed, implicit in this court’s adoption

of a two-day time limit over the proposed four-day limit was a

statement that a delay of even two additional days was

presumptively not permissible.       This presumption is also evident

in the framework of the rule itself.

               b. The Structure of HRPP Rule 5(c)(3)

          Our strong commitment to protecting defendants from

prolonged confinement without a preliminary hearing is reflected

in HRPP Rule 5(c)(3)’s structure.        Unlike the Federal Rules of

Criminal Procedure and the rules of many other jurisdictions,

the two-day time limit contained in HRPP Rule 5(c)(3) is not

framed as a but-for requirement in order to proceed with the

preliminary hearing.     Compare HRPP Rule 5(c)(3) with Fed. R.

Crim. P. 5.1(c) (2009) (“The magistrate judge must hold the

preliminary hearing . . .”); Del. Super. Ct. Crim. R. 5(d)

(2016) (“Such examination shall be held . . .”); and Alaska R.

Crim. P. 5(e)(4) (2017) (same).       That is, HRPP Rule 5(c)(3)

provides only for the release of the defendant upon the

defendant’s motion if a hearing is not conducted within the

prescribed time period; it does not provide for the dismissal of

charges without prejudice, as many courts have held to be the

case under the “mandatory” language of other jurisdictions.                See
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State v. Hutcheson, 352 S.E.2d 143, 148 (W. Va. 1986) (citing

United States v. Rogers, 455 F.2d 407, 412 (5th Cir. 1972);

United States v. Milano, 443 F.2d 1022, 1024, 1025 (10th Cir.

1971); United States v. Assenza, 337 F. Supp. 1057, 1061 (M.D.

Fla. 1972)).   Instead, the charges against the released

defendant remain pending when the defendant is released, and the

thirty-day time limit for out-of-custody defendants, which is

couched in mandatory terms, becomes applicable.          In other words,

HRPP Rule 5(c)(3) allows the State up to thirty days from a

defendant’s initial appearance to remedy any complication that

made conducting a preliminary hearing within the two-day time

limit inconvenient or otherwise problematic.          However, the rule

requires that the defendant be released from custody upon motion

until such a hearing takes place unless the State demonstrates

that one of the rule’s narrow exceptions is applicable.

       c. The Language and Operation of HRPP Rule 5(c)(3)

           With these principles in mind, we turn now to the

language of HRPP Rule 5(c)(3)’s second exception.           The rule does

not require the release of a defendant from custody upon motion

if the nonoccurrence of a preliminary hearing “is attributable

to such compelling fact or circumstance which would preclude

such determination or commencement within the prescribed

period.”   HRPP Rule 5(c)(3).     This phrasing suggests two

separate requirements: a “compelling fact or circumstance” must
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exist, and that fact or circumstance must “preclude such

determination [of probable cause] or the commencement [of a

preliminary hearing]” within two days of the defendant’s initial

appearance.

           We interpret the meaning of “compelling” in light of

our historical commitment to providing a defendant held in

custody with a preliminary hearing within two days of initial

appearance such that release is strongly presumed to be

appropriate if a preliminary hearing does not commence within

this period.   Both our history and the structure of HRPP Rule

5(c)(3) indicate that only in narrow circumstances will the

presumption be displaced, allowing the defendant to be held

longer than two days without commencement of the preliminary

hearing.   Thus, a compelling fact or circumstance is an

occurrence or situation that is of such gravity as to overcome

the strong presumption that the release rule applies.

           The absence of a witness from a hearing does not in

itself present a circumstance of sufficient gravity to displace

the strong presumption that the release rule applies.            Indeed,

were the voluntary nonattendance of a witness considered

compelling for purposes of HRPP Rule 5(c)(3), a witness could

extend a defendant’s captivity at will simply by electing not to

attend the preliminary hearing.       Such a result would be plainly

contrary to the strong presumption of release embodied in the
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rule.     Rather, when the State has used due diligence to obtain

the witness’s presence, the court must consider the reasons for

the witness’s absence, if known.14        Because the release rule is

designed to have broad application, a situation must present

serious considerations in order to be compelling.            Further, a

circumstance caused by the State’s failure to exercise due

diligence will rarely overcome the strong presumption that the

release rule applies because the rule exists to protect

defendants against unnecessary delays.

            This interpretation is consistent with our application

of the compelling circumstance phrase in other contexts.             In

Gannett Pacific Corp. v. Richardson, for example, we considered

when preliminary hearings--like the ones here at issue--could be

closed to the public.      59 Haw. 224, 233, 580 P.2d 49, 56—57

(1978).    We determined that a departure from “this

jurisdiction’s policy of openness in judicial proceedings” was

justified only when the court concludes that the public’s

exposure to potentially inadmissible evidence was substantially

likely to interfere with the defendant’s right to a fair trial

by an impartial jury.      Id.   We would later describe this

decision as holding “that except under certain rare and
     14
            When the reasons for a witness’s absence cannot be ascertained,
evidence of whether the witness intended to cooperate may be relevant to the
court’s analysis.




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compelling circumstances, courtroom proceedings shall be open to

the public.”   Oahu Publ’ns Inc. v. Ahn, 133 Hawaii 482, 495, 331

P.3d 460, 473 (2014) (other emphasis omitted) (quoting Honolulu

Advertiser, Inc. v. Takao, 59 Haw. 237, 238, 580 P.2d 58, 60

(1978)).   Just as in the present cases, we identified a strong

policy commitment “firmly embedded in our system of

jurisprudence.”    Gannett, 59 Haw. at 228, 580 P.2d at 54.           As

here, we permitted this commitment to be overcome only by a

showing of circumstances that raised a countervailing concern of

great enough weight to overcome the strong presumption that the

standard rule applies.     See also Amemiya v. Sapienza, 63 Haw.

424, 428, 629 P.2d 1126, 1129 (1981) (holding that,

notwithstanding legislative delegation of prosecutorial

discretion to city and county public prosecutor, state attorney

general may “supersede” public prosecutor “in certain compelling

circumstances,” including “dereliction of duty” and when

conflict of interest exists).

           Even when a compelling fact or circumstance is found

to be present, however, it must actually result in preclusion of

“determination [of probable cause] or commencement [of a

preliminary hearing] within the prescribed period” for HRPP Rule

5(c)(3)’s second exception to apply.        “Preclude” is generally

defined as “to prevent or make impossible; to rule out


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beforehand by necessary consequence.”         Preclude, Black’s Law

Dictionary (10th ed. 2014).       Preclusion will therefore occur

either when a circumstance prevents the determination of

probable cause at a preliminary hearing or when a circumstance

prevents the commencement of the hearing within the two-day time

frame.    The former situation will arise, for example, when there

is an unavailability of evidence that is crucial to the probable

cause determination.      The latter situation occurs, for example,

when court personnel required to conduct a hearing, such as

defense counsel, are unable to be present.15

           An implicit corollary to the rule’s provisions is that

any continuance granted under HRPP Rule 5(c)(3)’s second

exception must be no longer than needed to resolve the

compelling fact or circumstance that precluded the determination

of probable cause or the commencement of a hearing within the

two-day time limit.      The court must be informed how the State

intends to expeditiously address the circumstance precluding the

determination of probable cause or commencement of the hearing,

and any continuance must be circumscribed to the period

     15
            HRPP Rule 5(c)(3) additionally requires that there be a causal
link between the compelling fact or circumstance and the nonoccurrence of the
hearing. The “failure of such determination or commencement” must be
“attributable to such compelling fact or circumstance.” HRPP Rule 5(c)(3)
(emphasis added). Even when a hearing is precluded and a compelling fact or
circumstance is present, HRPP Rule 5(c)(3)’s second exception will not apply
when the preclusion resulted from a separate, noncompelling event.




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necessary to resolve that circumstance.          The rule’s language,

structure, and history demonstrate a policy determination that

an in-custody defendant should be afforded a preliminary hearing

within the prescribed time frame of the rule.           Any deviation

from this time frame should be measured relative to the two-day

limit--not the thirty-day limit applicable to out-of-custody

defendants.    Thus, the length of a requested continuance must be

consistent with the rule’s objective of a prompt probable cause

determination.

            In summary, two days is the presumptive limit of

acceptable delay, and holding a defendant without a preliminary

hearing for a longer period is authorized under HRPP Rule

5(c)(3)’s second exception only when compelling circumstances

prevent a timely determination of probable cause or commencement

of the hearing.16     The period of any requested continuance must

be consistent with the prompt-determination purpose of the rule

and correlated in duration to the specific circumstance that

caused the preliminary hearing to not commence within the two-

day time frame.17


     16
            We note that this corollary also applies to HRPP Rule 5(c)(3)’s
other exceptions to the standard release rule. Under the rule’s first
exception, for example, a hearing continued because of a defendant’s
condition should occur as soon as the condition is alleviated.
     17
            Both petitioners acknowledge a dearth of caselaw regarding when a
preliminary hearing “commences” for purposes of HRPP Rule 5(c)(3). They

                                                             (continued . . .)

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             d. Application to Moana and Curioso’s Cases

            The cases at hand provide illustrative examples of the

operation of HRPP Rule 5(c)(3)’s second exception.            In Moana’s

case, the State argues that the complainant’s nonappearance

despite being properly served was a compelling fact or

circumstance.18     Turning initially to the preclusion requirement

of the second exception, the complaining witness’s absence at

the preliminary hearing likely precluded a determination of

probable cause, insofar as the witness’s testimony would provide

crucial evidence on this issue.        However, the State’s plan for

(. . . continued)

argue that the structure of the rule, which permits a delay in commencement
without the release of the defendant if the delay occurs by the defendant’s
request or with the defendant’s consent, necessarily contemplates an
opportunity for the defendant to move for continuance or consent to the
State’s motion prior to commencement of the hearing. Commencement must
therefore occur later, when witnesses are sworn or evidence is presented,
they conclude. The State does not dispute this point.

            We note that HRPP Rule 5(c)(3)’s text indicates that the two-day
time limit for in-custody defendants is satisfied if a preliminary hearing
commences within the time frame, and that conclusion of the hearing within
the two-day period is not required. In other words, a hearing commenced
within the two-day period may extend beyond that time frame without
necessitating the release of the defendant upon motion. However, any
continuance granted after the commencement of the hearing must satisfy one of
HRPP Rule 5(c)(3)’s exceptions or be based on the court’s inability to
complete the hearing on the scheduled day due to time restraints. Any
continuance would presumably be to the next court day.
      18
            The State also proffers Moana’s criminal history, the nature of
the offense with which Moana was charged, and the vulnerable nature of the
complainant as compelling circumstances on which the court relied. Because
these circumstances do not prevent the determination of probable cause or the
commencement of preliminary hearing within the two-day time frame, they
clearly do not qualify under HRPP Rule 5(c)(3)’s second exception. We
consider them further with respect to HRPP Rule 5(c)(3)’s third exception,
discussed infra.




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securing the attendance of the complaining witness was of an

indefinite nature and duration.       To hold a defendant during a

continuance pursuant to HRPP Rule 5(c)(3)’s second exception,

the State must set forth the specific steps that it intends to

take to expeditiously resolve the compelling circumstance, and

the requested continuance must be limited to that time period.

Here, the State made only vague statements indicating that it

would attempt to locate and serve the witness again, possibly

attempting to obtain a material witness order if necessary.

Indeed, the State acknowledged that the complainant may no

longer have been in Hawaii and offered no information suggesting

it had any knowledge of the witness’s current location.            The

strong presumption of release does not permit the State to hold

a defendant for a period of time that does not preserve the

defendant’s right to a prompt probable cause determination.

          Because the continuance was clearly not limited to the

time necessary to expeditiously resolve the circumstance

precluding the hearing, we do not address whether the

complaining witness’s absence constituted a compelling

circumstance in light of the witness’s possible departure from

the jurisdiction and previously expressed reluctance to testify.

However, we note that when a compelling circumstance is not

present or it cannot be ascertained whether a witness’s


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attendance can be promptly obtained, the court following the

release of the defendant from custody may continue the

preliminary hearing to any point within the thirty-day time

limit for an out-of-custody defendant.

           In Curioso’s case, the complainant was present and

ready to testify at the scheduled preliminary hearing but was

impeded from doing so by the lack of an interpreter.            The State

avers that it could not have discovered the need for an

interpreter earlier through ordinary diligence and that it made

diligent efforts to obtain an interpreter as soon as the

complainant requested one.19       As we have said, “inherent in [the]

nature of justice is the notion that those involved in

litigation should understand and be understood.”            In re Doe, 99

Hawaii 522, 533, 57 P.3d 447, 458 (2002) (quoting Figueroa v.

Doherty, 303 Ill. App. 3d 46, 50, 707 N.E.2d 654, 658 (1999)).


      19
            Although we assume in this case that the State exercised due
diligence in attempting to secure an interpreter, we note that there is no
indication in the record that the State contacted the court for assistance.
The court is equipped with many resources in this area, including the ability
to appoint an interpreter of its own selection at a hearing or trial. See
HRPP Rule 28(b) (2012). Further, the Hawaii State Judiciary has committed to
“reasonably provid[ing], free of charge, and in a timely manner, competent
court interpreters for parties, witnesses and individuals with a substantial
interest in a case.” Judiciary’s Language Access Policy, Hawaii Judiciary
Policy #12 (2014); see also Hawaii State Judiciary, Language Access Plan for
Persons with Limited English Proficiency, FY 2015-2016, at 9 (“Non-Judiciary
staff, including a public defender, prosecuting attorney, private attorney,
or community advocate, may also inform the court of a client’s need for an
interpreter in a particular case.”)
http://www.courts.state.hi.us/docs/services/LEP.pdf.




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Given the fundamental importance of an interpreter in courtroom

proceedings, the inability to obtain one presented a

circumstance of such gravity as to overcome the strong

presumption that inheres in the release rule.

           The facts of the situation were thus compelling under

the first prong of HRPP Rule 5(c)(3)’s second exception.             The

interpreter was also essential court personnel necessary to

commence the preliminary hearing.         With both requirements of

HRPP Rule 5(c)(3)’s second exception met, the district court

would have been justified in relying upon it to deny Curioso’s

motion for release.

           However, the facts concerning the complaining

witness’s late request for an interpreter, lack of prior

indication that an interpreter was needed, and the State’s

efforts to locate an interpreter were not shown to be part of

the record of the hearing in this case.20         The district court

also continued the hearing without any inquiry into when an

interpreter could be obtained, and instead of continuing the

hearing to the next day, which was a Friday, the hearing was

rescheduled for the following Tuesday--after the weekend.              As

discussed, when a defendant is kept in custody beyond the two-

      20
            The information was contained in an affidavit submitted with the
State’s response to Moana’s petition for a writ of mandamus.




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day time limit pursuant to HRPP Rule 5(c)(3)’s second exception,

any postponement of the preliminary hearing is to be limited to

the time necessary to address the circumstance precluding the

hearing--here, the minimum time needed to secure an interpreter.

                2. HRPP Rule 5(c)(3)’s Third Exception

           Because the State does not specify which of HRPP Rule

5(c)(3)’s exceptions the family court relied upon to deny

Moana’s motion for release and keep him in custody until a

continued hearing date two weeks hence, we also address the

proffered facts in relation to the rule’s third exception, which

allows a court to deny a motion for release if a “compelling

fact or circumstance would render such release to be against the

interest of justice.”

           Like HRPP Rule 5(c)(3)’s second exception, the rule’s

third exception requires that a court find that a “compelling

fact or circumstance” exists in order to keep a defendant in

custody.   As we have concluded above, a fact or circumstance is

compelling when it is of such gravity as to overcome the strong

presumption that the standard release rule should apply to the

situation.

           The record does not indicate that any such compelling

facts or circumstances were implicated in Moana’s case.            In

addition to the nonappearance of the complainant, discussed

above, the State argues that the family court relied upon three
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compelling circumstances when it required Moana to remain in

custody while the complainant’s whereabouts were being

determined: the nature of Moana’s alleged offense, the

vulnerable nature of the complainant and their child, and

Moana’s criminal history, which the State argues collectively

indicated a potential danger to the absent complainant.

However, simply referencing the nature of an alleged offense

does not present a fact that justifies departing from the

standard rule because HRPP Rule 5(c)(3) was formulated and

adopted to apply to all criminal offenses.         The rule does not

provide for different periods of custody based on the type of

offense.   That is, the third exception applies to compelling

circumstances and not offenses categorized as compelling.

           Additionally, the record does not demonstrate any

specific factual allegation that Moana posed a risk to the

absent complainant that was of a sufficient gravity to overcome

the strong presumption that the standard release rule should

apply to the situation.     Indeed, the State’s argument that Moana

posed a potential risk to the complainant was undermined by the

basis of its request for the continuance and the family court’s

apparent reasoning for granting it.        The complainant’s

whereabouts were unknown to the State, and the requested

additional time by the prosecutor was to locate and obtain the

complainant’s cooperation.      The prosecutor further explained
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that his office might obtain a material witness order if the

complainant was found on the mainland and refused to return

voluntarily.    The court itself referred to the insubstantiality

of the prosecutor’s request in its ruling, warning the

prosecutor that “the next time . . . if the complaining witness

fails to appear . . . [the State] need[s] a lot more information

than what somebody might have said.”21         The lack of a showing of

compelling circumstances for the continuance request is clearly

evident.

           Even had the asserted facts constituted compelling

circumstances, the State did not present the court with proposed

measures to expeditiously address the concerns raised.             The

strong presumption of release requires that a defendant in

custody be afforded a hearing as promptly as feasible, and a

continuance should in no event be longer than necessary to

resolve the compelling circumstance that justified holding a

defendant beyond the two-day time limit.          Just as under HRPP

Rule 5(c)(3)’s second exception, the rule’s third exception does

not authorize holding a defendant without a probable cause

determination for a period beyond what is required by the

     21
            The family court’s comments regarding “what somebody might have
said” referred to the prosecutor’s statement to the court in his continuance
request that he had been contacted by the complainant’s aunt, who informed
him that she had taken food to the airport to give to the complainant and her
child.




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compelling circumstance, and any continuance granted must comply

with the prompt hearing mandate embodied in the rule.

           It is also noted that HRPP Rule 5(c)(3)’s third

exception contains a second prong that requires a court to

determine that the defendant’s release would be “against the

interests of justice.”     Because the record does not support a

finding that compelling circumstances existed to overcome the

strong presumption that release was required, we do not address

the possible situations in which the interests of justice

provision may apply.

                             IV. CONCLUSION

           Because the petitions are moot, we cannot provide the

relief the petitioners seek and therefore deny their petitions.

We nonetheless consider the legal questions they present, which

are capable of repetition but would otherwise evade review, in

order to provide guidance to the district and family courts.               We

hold that HRPP Rule 5(c)(3) provides a strong presumption that

the release upon motion of a defendant held in custody is

required when a preliminary hearing has not commenced within two

days of initial appearance.      When a delay is not caused by a

defendant and occurs without the defendant’s consent, courts may

deny a defendant’s motion for release only in a circumstance

that is of such gravity as to overcome the strong presumption of

release.   If such a compelling circumstance is found, the
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continuance of the preliminary hearing must be consistent with

the prompt-determination objective of the rule and must be no

longer than needed to resolve the circumstance making the delay

necessary.


Jon N. Ikenaga                           /s/ Mark E. Recktenwald
for petitioners
                                         /s/ Paula A. Nakayama
Rafael K. Renteria
for respondent in                        /s/ Sabrina S. McKenna
SCPW-17-0000532
                                         /s/ Richard W. Pollack
Leigh M. Okimoto
for respondent in                        /s/ Michael D. Wilson
SCPW-17-0000171




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