[1979] KILR 50

HIGH COURT OF THE GILBERT ISLANDS

Criminal Case No 19 of 1979

REGINA

v

TAWANG TENIKOMU
AND
FOURTEEN OTHERS

In re an application by TIAON SMITH

(O'BRIEN QUINN C.J.)

Betio: 19th and 20th April 1979

Criminal law - criminal procedure - absence of accused through illness - medical certificate - discretion of trial judge - accused represented by counsel - section 177 of Criminal Procedure Code (Cap 7) - trial proceeded in absence of accused but in presence of his counsel - ruling.

During the trial of fifteen accused in respect of arson at Ocean Island (Banaba) one of the accused became ill and a medical certificate was produced. As that accused wished to be present at the trial an application on his behalf was made for the trial not to continue in his absence. Section 177 of the Criminal Procedure Code (Cap 7) was invoked and the Crown objected to an adjournment of the trial until the accused recovered.

RULED: (1) That, having regard to the terms of section 177 of the Criminal Procedure Code (Cap 7), and in view of the fact that there were fifteen accused in the trial and that the accused in question was represented by counsel, it would not be in the interests of the administration of justice if the trial were to be adjourned until the accused in question recovered and was able to attend Court;

(2) That the application would be refused.

Authorities referred to:

Criminal Procedure Code (Cap 7) section 177
R v Lee Kun (1916) 11 Cr. App. Rep. 293 at 300
R v Barry (1897) 104 L.T. Journ 110
R v Orten alias Castro (1873) Queen's Bench M.S.
Archbold, 39th Edition, paragraph 329a
Halsbury's Laws of England, 4th Edition, paragraph 227, Vol. 11
R v Governor of Brixton Prison ex-parte Caborn-Waterfield (1960) 2 Q.B. 498 at 508 D.C.
R v Streek (1826) 2 C & P 413
Ex-parte O'Brien Dalton 28 L.R. Ir 36

M. Takabwebwe, Crown Counsel, for the Crown
K.C. Ramrakha, Barrister, for the Applicant

O'BRIEN QUINN C.J.:-

When the Court resumed at 2 pm on 19th April 1979 it was informed that one of the accused persons, Tiaon Smith, Accused No 13, was ill and could not attend. A Doctor's Certificate was sent to the Registrar which was handed to me. It was signed by Dr Eritane and it stated that the accused was "unable to attend court today due to illness". The reason given by the Doctor, "In Confidence", was stated on the form and showed that the accused was suffering the after effects of a serious illness which he had had previously.

2. The question arose as to whether or not the trial should continue in the absence of this accused.

3. I asked both Counsel if there were any objections to the trial proceeding in this accused's absence and my attention was drawn to section 177 of the Criminal Procedure Code (Cap 7).

4. In view of the seriousness of the matter and in view of the fact that Defence Counsel had had no occasion to consult with his client, the accused, I allowed an adjournment of 30 to 45 minutes for Defence Counsel to take instructions from his client.

5. When the Court again resumed at 2.55 pm Defence Counsel informed me that he had seen his client and that his client did not consider that he would be able to attend Court for about two weeks and did not wish the trial to proceed in his absence.

6. Defence Counsel left the matter to the Court and Crown Counsel had no objection to the trial's proceeding in the absence of Accused No 13.

7. I then decided that the trial would proceed in the absence of this accused and I now give my reasons.

8. The general rule as laid down in R v Lee Kun (1916) 11 Cr App Rep 293 at 300 by Lord Reading C.J. is that "There must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity.....of answering it. The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings." However, there are exceptions to this general rule, as, for example, where the accused creates a disturbance (R v Barry (1897) 104 L.T. Journ. 110). Further examples are set out at paragraph 329a of Archbold 39th Edition.

9. In one case, in particular, an accused became ill during his trial for perjury and he was allowed to absent himself from the court until his recovery and the trial proceeded in his absence (R v Orten alias Castro (1873) Queen's Bench M.S.).

10. It would appear from the various authorities cited in Archbold that the question of proceeding with the trial in the absence of an accused is generally a matter for the discretion of the trial judge. In Halsbury's Laws of England (4th Edition) at paragraph 227 it is stated, following R v Governor of Brixton Prison ex-parte Caborn-Waterfield (1960) 2 Q.B. 498 at 508 D.C. and R v Streek (1826) 2 C & P 413 that it is doubtful whether the trial may be continued when the defendant is absent through illness, at least without his personal consent: counsel's consent not being sufficient.

11. I have considered these authorities and have considered the terms of section 177 of Cap 7, and in view of the fact that there are fifteen accused in this case and that most of the eye-witness evidence has already been taken and in view of the fact that this 13th Accused is represented by Counsel, I consider that it would not be in the interests of the administration of justice if I were to adjourn this trial until the 13th accused recovers and is able to attend Court.

12. I consider that the 13th Accused will not be prejudiced by the trial's proceeding in his absence as he is ably represented by Counsel and as the Doctor's Certificate is for one day's absence only even though I am informed by Counsel that he will be absent for a fortnight. Section 177 of Cap 7 gives me the power and it is in line with the authorities.

13. Should it be necessary to find that the 13th Accused has a case to answer then the Court will, if necessary, adjourn to a more convenient place to take any evidence the 13th Accused may elect to give.

14. In the meantime the trial will proceed in his absence but in the presence of his Counsel and it will not affect the other 14 accused (see ex-parte O'Brien Dalton 28 L R Ir 36).