Daly CJ:his case two
accused appeared before a magistrate sitting in AlE">Auki
charged with larceny in a dwelling house contrary to section 262(a) of the
Penal Code. One accused pleaded guilty; the other, Geoffrey KWATEFENA
(�the accused�) pleaded not guilty. At his trial on the 14th
March 1983 the accused was represented by a counsel from the Public
Solicitor�s office, the prosecution by a
police inspector. The accused was found guilty of the offence.
On the face of the record of the trial there are a
number of omissions which, if they reflected what took place, would
indicate that the correct procedure was not followed. No doubt some
omissions are merely omissions to record what in
fact took place. For
example there is no indication that prosecution witnesses were sworn but I
imagine they were.
However it is not for this court on review to fill in
the gaps of records by assumption and I have reached the conclusion
that
this record and the course taken in the trial are such that I cannot
permit the conviction of the accused to
stand.
The prosecution called two
witnesses who, I assume, gave evidence on oath. They were cross
examined. There is no record of any re-examination or an opportunity
for
it to take place being offered. The record then merely states, following
the close of the prosecution case, �K
sworn�. This refers somewhat
elliptically to the accused. There is no record that section 197 of the
Criminal Procedure
Code (�CPC) was complied with or that the accused
exercised a choice. Even if an accused is represented, a court should
satisfy itself he is aware of his choices and has made one. Section 197 is
mandatory.
The evidence of the accused in chivers
approximately one page of the record. It is then followed by one page of
questioning by the court and then one page of cross-examination by the
prosecutor (with an intervention by the court).
Again there is no
indication of re-examination. Courts in Solomon Islands should always bear
in mind that we work
in an adversary system. This requires that the
parties should be permitted to develop the case as they wish with the
court intervening only when it is clear the case is taking a wrong turning
or is becoming obscure . Sometimes when one
side is professionally represented and the other is not, a court may
indicate issues or points
which it considered important to assist the
party at a disadvantage. However it is wrong for the court to give the
impression that it is doing the work of one side. In this case by the
learned magistrate asking so many question before
the prosecutor had
cross-examined at all, that impression may well have arisen. If a court
wishes to address a series
of questions to a witness such questions should
usually be couched in neutral terms and asked after the re-examination.
Earlier questions to clear up ambiguities are of course acceptable. Both
parties should be given an opportunity to
ask questions on anything
arising from this questioning by the court.
After the accused had finished his evidence, a witness
was called by the court to give evidence of the use of certain words
in
language. Again there is no indication that the witness was sworn. The
evidence given by the witness was adverse
to the case of the accused and
was relied upon in the judgment in that way. There is clear power in
section 133 CPC
for a court to call a witness. However, such power to call
a witness after the close of the case for each party should be
�used
sparingly and rarely exercised� (see the cases summarized in
Archbold Criminal Pleading and Practice 4th
Edition Para 592) particularly where the witness given the evidence in
support of the prosecution case. The proviso
to section 133 CPC gives the
parties a right to cross-examine the witness. It is clearly of paramount
importance
that such a right be accorded to a party against whom adverse
evidence is given. There is no indication that counsel for
the accused was
invited to cross examine or to apply for an adjournment to prepare such
cross examination.
Finally there are no closing speeches recorded and no
record that the advocate for the accused was invited to address the
court
in accordance with section 199 CPC.
The cumulative effect of these matters is that I
consider that a conviction recorded as a result of this trial is unsafe
and unsatisfactory. I must therefore in exercise of my powers under
section 50 of the Magistrate�s Courts Act
quash the conviction of Geoffrey Kwatefena of
the offence contrary to section 262(a) of the Penal Code and order that it
is expunged from his record.
----------------------------------------------------
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1983/3.html
