CRC 1293 – 91.CMC.

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 1293 of 1991

REGINA

-v-

CALOS GALOFIA

High Court of Solomon Islands
(Muria J.)
Criminal Case No. 1293 of 1991

REVIEW JUDGEMENT

MURIA J: I refer to my Review Judgments in Criminal Case No. 1245/91 given on 10 January 1992 and Criminal Case No. 1167/91 given on 13 January 1992 in which I said that a count alleging that the accused "broke and entered....... with intent to steal and did steal therein....." is bad for duplicity. It is clear that the charge against the accused is bad for duplicity.

I draw the attention of all Magistrates to the provision of section 200(1) of the Criminal Procedure Code which says:

"200(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:

Provided that where a charge is altered as aforesaid, the court shall thereupon call upon the accused person to plead to the altered charge."

That provision clearly gives the Court the power to amend the charge which is defective in substance or in form.

The charge in this case is clearly defective and should have been amended before the accused pleaded to the charge or before the prosecution closed its case. In cases where a police officer is conducting the prosecution, very often defects in the charges are not picked up as they are not qualified lawyers. It is therefore incumbent on the Court to exercise its power under section 200(1) and amend the charges bearing in mind the proviso which requires the Court to call upon the accused to plead to the amended charge.

In this case, as the charge is bad for duplicity, I set aside the conviction on the original count but I the accused of the offence under section 293(a) of the Penal Code.

The sentence of 18 months imprisonment is undoubtedly a proper one in this case and I do not interfere with it.

(G.J.B. Muria)
JUDGE