[1979] KILR 19

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No. 5 of 1979

BERATA TEBIKAU

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 30th January 1978

This appeal is reported only on the irregularities in the re-examination of witnesses, the non-recording of details contrary to sections 194 and 199 of the Criminal Procedure Code (Cap 7) and their cure under section 290 of Cap 7.

The appellant was convicted of unlawful wounding contrary to section 223 of the Penal Code (Cap 8) and his appeal was dismissed, but even though he had not appealed, the sentence was reduced, under the High Court's powers of revision, from 9 months' to 3 months imprisonment due to certain irregularities.

HELD: (1) That re-examination is only necessary when matters which arose in cross-examination need to be cleared up or explained and is not allowed for the purpose of assisting the prosecution to ask questions which were forgotten to be asked in examination-in-chief.

(2) That the Magistrates' Courts are Courts of Record, which means that the proceedings must be written down on the record and anything that does not appear on the Record is presumed not to have taken place unless it can be proved in some other way.

(3) That section 194 of the Criminal Procedure Code (Cap 7) should be complied with in future and the accused made aware of his rights under that section.

(4) That, even though the appellant had been found guilty he had not been convicted under section 199 of the Criminal Procedure Code (Cap 7) but that this irregularity would be cured under section 290 of Cap 7.

Authorities referred to:

Criminal Procedure Code (Cap 7) Sections 194, 199 and 290
Kautebiri Kobuti v R 1978 G.I.L.R. LL
R v Toatiri Riteti 1978 G.I.L.R. 103
High Court Circular No. 2 of 1978 pgh 3(n)
Magistrates' Courts Handbook page 93
Instructions to Court Clerks No 16.

O'BRIEN QUINN C.J.: This is an appeal against the judgment of the Magistrates' Court for the Tabiteuea South Magisterial District sitting at Teobokia on 14th December 1978 when the appellant was sentenced to 9 months' imprisonment after having been found guilty of the unlawful wounding of Aberaam Tekaiwa contrary to section 223 of the Penal Code (Cap 8).

2. The only ground of appeal is "I appealed against the conviction by the Court for I am not satisfied with their conviction."

3. From the evidence on the Record it would appear that the victim, Aberaam, and some friends were going to have a bath on the night of Friday 27th October 1978 when someone shone a torch on them, shouted at them and, when they ran away followed two of them and struck Aberaam on the back with a bush knife causing him a serious injury. The person who wounded Aberaam was recognised as being the accused, Berata.

4. That evidence as it stood appeared plausible except that there was no reason for the accused's unusual actions. However, in defence the accused gave evidence himself and called witnesses to show that he had been awakened from sleep on an earlier evening by boys shining a torch and that on the evening of 27th October 1978 there were two gangs of youths involved in fighting and shining torches on one another, one group being that of the accused and the other group that of which Aberaam was a member.

5. In their judgment the Magistrates said "Guilty. The Court has gone through the statement of the Accused and confirmed that it is appropriate that the Accused must be guilty."

6. In view of the fact that two totally different accounts were given in evidence it is difficult to follow the reasoning of the Magistrates. The only thing I can say is that there is no doubt that the wound was caused during the fight and that while two of the prosecution witnesses say it was caused by the appellant none of the appellant's witnesses supports the appellant that it was not he who struck the blow.

7. In these circumstances I do not consider it proper to interfere with the finding of fact by the Magistrates and I uphold their finding of the appellant guilty.

8. However, although there was no appeal against sentence, I will exercise my powers of revision thereon as I wish to draw attention to a number of irregularities in procedure which may have affected the sentence passed in this case.

9. The examination-in-chief of the prosecution witnesses was in order but, when the appellant either asked one or, at most, two questions, in cross-examination, the prosecution launched into a lengthy re-examination on matters that definitely did not arise out of the cross-examination and should have been asked in examination-in-chief. This procedure was wrong. Re-examination is only necessary when matters which arose in cross-examination need to be cleared up. I have mentioned this matter before in High Court Criminal Appeal No. 1 of 1978 Kautebiri Kobuti v Regina on 8th February 1978 and I said it again in High Court Criminal Revision Case No. 15 of 1978, R v Toatiri Riteti, on 30th October 1978, and I drew attention to the purposes and practice of Re-examination in High Court Circular No 2 of 1978 on 22nd June 1978 at paragraph 3(n) in both English and Gilbertese. Re-examination is required only if something that arose in the cross-examination needs to be cleared up and, if there has been no cross-examination, there cannot be any re-examination. Re-examination is not allowed for the purpose of assisting the Prosecution to ask questions which were forgotten to be asked in-examination-in-chief. Clerks of Court and Police prosecutors should read and study Chapter 9 of the Magistrates' Courts Handbook, particularly at page 93, where the matter is clearly dealt with and also read Instructions to Court Clerks No 16 of 30th October 1978 which clarifies the subject further.

10. At the end of the Prosecution case there is nothing on the Record to show that section 194 of Cap 7 was complied with but it would seem that, in some unrecorded way, the appellant did learn of his rights as he gave evidence on oath and called witnesses. It must be remembered that the Magistrates' Court is a Court of record, which means that its proceedings must be written down on the record and anything that does not appear on the record is presumed not to have taken place unless it can be proved in some other way. Section 194 of Cap 7 should be complied with in future and the accused made aware of his rights.

11. Further, although the appellant was found guilty, there is no record of his having been convicted as is required by section 199 of Cap 7. This is not, however, fatal to the case as no injustice was occasioned thereby and I apply the provision of section 290 of Cap 7.

12. On the whole, the only irregularity that may have occasioned injustice to the appellant, was the incorrect procedure on re-examination but, on the facts, as I said above, I did not interfere with the Magistrates' finding of guilty but I consider that the appellant was unfairly treated and that as inadmissible evidence given under re-examination may have prejudiced the minds of the Magistrates against appellant and I consider that the sentence should be reduced, particularly as the appellant is a first offender.

13. I, accordingly, reduce the sentence to one of 3 months' imprisonment to date from 14th December 1978.

14. The appeal conviction is dismissed but on revision the sentence is reduced to 3 months' imprisonment to run from 14th December 1978.