HIGH COURT OF SOLOMON ISLANDS
Criminal Case
No. 2 of 1996
REGINA
-v-
1. SETHUEL K/font>
2. GORDON DARCY
="3">Before: Awich, Puisne Judge
Hearing: 6 June 1996 - Ruling: 13 1996
Counsel: In Person for Accused 1; A.
A.
Nori for Accused 2
JUDGEMENT
(RULING)
Sam Awich (Judge):
When this case was called in court for
trial, I was obliged to inquire as to the authority by
which the information
preferring 8 charges against the
accused Mr. Sethuel Kelly, No 1 and Mr. Gordon Darcy, No
2, were filed at the
High court. There were no records of
preliminary inquiry and committal to the High Court for
trial. There was no
record or statement by the DPP that
he was filing the information under section 217 of the
Criminal Procedure Code after a magistrate had discharged
the accused in preliminary inquiry. I was also concerned
about what appeared
to be repetition of counts. There
were up to 8 of them, but some charging on the same
transaction, the facts being
the same facts in those
counts. Further what appeared to be undue delay in
charging the accused concerned me. The
charges alleged
that the events of the charges occurred in 1990. Accused
were charged in the High Court only on
9.2.1996. I also
had to inquire of the second accused as to whether he was
desirous of having his trial separated
from that of the
first accused in view of the fact that the first accused
had filed ex parte application seeking
leave to apply for
orders of certiorari and prohibition against the Attorney
General, representing the director
of Public
Prosecutions.
It is the duty of the court, before
putting charges to accused, to ensure that the charges
have been filed in court
according to the requirement of
the law. It is also its duty to ensure that the charges
are clearly stated in a
way that accused do understand
the charges they face. If amendments are required to
correct ambiguity, duplicity
or other defects, the court
is authorised to do so by section 250 of the Criminal
Procedure Code.
Accused, of course, would be afforded
opportunity to object to any formal defect apparent from
the charges, before
they plead.
As the result of my preliminary
questioning, I was handed, from the bar, a record of
proceedings before the Chief
Magistrate, at Honiara on
10.7.1995. It was a record of proceedings of 9 criminal
cases together, two of them being
cases No CRC 680/95
R v Gordon Darcy, and No CRC 682/95 R v Sethuel
Kelly. The cases were all called together in the
magistrate's court for mention. Counsel for one of the
accused raised
the point that under section 23(1) of the
Leadership Code (Further Provisions) Act, 1979 charges
under the Leadership
Code Act should be commenced at the
High Court; accordingly magistrate's court was not
empowered to conduct preliminary
inquiry in those cases.
He also challenged charges laid under section 94 of the
Constitution as disclosing no offence.
All the other
counsel adopted those submissions on behalf of their
clients. Another counsel raised the question
of delay as
breach of section 10 of the Constitution.
The learned Chief Magistrate accepted
the first submission and declined to conduct preliminary
inquiry, stating
that he did not have jurisdiction to do
so in charges under the Leadership Code Act. He did not
deal with the second
and third submissions, presumably
because they involved interpretation of the constitution.
It would appear that the learned DPP
accepted the ruling of the Chief Magistrate and simply
filed directly, at the
High Court, information against
Mr. Kelly and Mr. Darcy, Charging them jointly in the one
information. He would
like the High Court to take it that
he was, thereby "Commencing" proceedings for
misconduct in office
under the Leadership Code Act,
directly at the High Court.
Section 23 (1) provides:
" Proceedings for misconduct
in office shall be commenced in the High Court of
Solomon Islands"
The Chief Magistrate was right to give
the literal meaning of the word, "commence" as
"begin".
So the proceedings are to begin at the
High Court. The word proceedings was not given specific
meaning under the
Act, so it must be taken to have its
ordinary literal meaning of, legal actions in court. The
word may be used
to refer to all conducts of cases from
start, including preliminary proceedings to close by
acquittal or by conviction
and sentence. It may, on the
other hand, be used to refer only to part of the steps.
A fundamental principle in the English
Common Law System on which the system in Solomon Islands
is based, is that
in trial on a charge of felony,
generally the more serious offences, the accused must be
made to know the serious
charge against him and the facts
upon which the charge is based, well before his trial.
That affords him ample
time to prepare his case to oppose
the serious charge. That advance knowledge is conveyed to
him in proceedings
known as preliminary inquiry.
It might take the form of calling evidence in magistrates
court and having accused cross examine witnesses
or
simply reading the charges and depositions and giving
copies to accused. The magistrate is required to protect
the accused by discharging him if the magistrate does not
find sufficient evidence upon which to commit accused
to
the High Court on the serious charge for trial there.
That of course is subject to application of the DPP under
section 217 of the CPC. That process protects accused
from baseless serious charges. The question that I posed
to consider is; are the words of the provision in section
23 of the Leadership Code Act sufficiently clear to
remove the process of preliminary inquiry, by which
accused is afforded the important advantage of
advance knowledge of the charges and evidence against
him, an important process in fair trial? there
are no
case decisions on the matter so far. In my search for
answer I came across the case of R v Geoffrey Siapu,
Criminal Case No. 34 of 1992 in which the accused was
charged with the offence of misconduct in office under
the Leadership Code Act. The record shows that he was
dully committed by the process of preliminary inquiry in
magistrate's court. The question of commencing
proceedings at the High Court in terms of section 23 of
Leadership Code Act was not raised and was not
considered. The High Court, however, proceeded on the
basis that
the charge was properly before it, by way of
preliminary proceeding.
Accused was convicted. He did not
appeal on the point of preliminary inquiry or at all. I
suppose if he were to
do so, his appeal might have been
met with the answer that the preliminary inquiry actually
afforded him a far
more fair trial than if preliminary
inquiry had not been conducted.
The case of Siapu was not brought to
the attention of the Chief Magistrate although there were
5 counsel in the case, neither was
it brought to my
attention. Had it been brought to the attention of the
Chief Magistrate, he would have definitely
given the
question much more serious thought. There is a principle
of law in Solomon Islands, that a point of law
decided in
a case before the superior courts, binds the lower courts
when the lower courts have to consider that
point of law
in cases before them. That is the principle of stare
decisis. In Siapu's case, the point of law as to whether
preliminary inquiry is not required by reason of
section 23 of the Leadership Code Act was not raised at
the Magistrates Court or at High Court, and
was not
specifically considered.
Nevertheless, one would expect that a
magistrate would take note of the fact that the High
Court accepted the preliminary
inquiry conducted, in the
light of the course of action adopted by the High Court
in that case.
I would like to observe that the
principle in the Leadership Code Act is certainly a good
and noble one, but is
a recent one in the Common Law
System that Solomon Islands has adopted. I wonder whether
the provisions of the
Act might have not been adopted
from elsewhere without attending to the auxiliary
questions of procedure.
In the end, it is my decision that for
the court to accept that preliminary inquiry is not
required, at Magistrate's
Court, for charges under the
Leadership Code Act, the wordings of section 23 must make
it abundantly clear, by
specifically excluding
preliminary inquiry. That is because of the fundamental
protection it affords accused. It
is too important a
question to be done away with by uncertain provision of
statute. The time may come when preliminary
inquiry will
be viewed as adding to delay in the trial of serious
cases triable at the High Court. Clear and certain
provisions will be necessary to drop it from procedure.
If I am wrong I do not see any prejudice accused would
have suffered by having been afforded the
opportunity to attack the charges against them that
early, in preliminary inquiry before
facing a trial at
the High Court, should that turn out to be the case. I
rule that magistrate's court has jurisdiction
to conduct
preliminary inquiry in charges under the Leadership Code
Act.
The DPP may, should he still wish,
present the case for preliminary inquiry in magistrate's
court. Any magistrate
may conduct the preliminary
inquiry. Moreover, this ruling does not take away any
power provided for under section
217 of the Criminal
Procedure Code or indeed under any other section.
Further, should it still be the wish of
the DPP to proceed with this case, he is advised to
consider what appears
to be undue repetition or
multiplying of counts, based on the same facts although
referring to different statutes
and sections in the laws.
Further he might have to consider why counts 1 and 2 are
not just one count since the
accused have been jointly
presented to court. The two counts charge the one accused
alone in the first count and
the other, alone in the
second count, but both counts charge identical facts. Too
many charges based on the same
set of facts sometimes
give the impression of harassment. In some jurisdictions
there is such a thing as unlawful
splitting of charges.
That is not the law in Solomon Islands. Moreover, the DPP
may wish to consider whether in
the event of convictions
on various counts arising from the same set of facts, it
will be proper for the court
to impose cumulative
penalties. That might lead him to reconsidering the merit
of preferring many charges on the
same facts.
Finally, should the case be committed
to the High Court for trial, the DPP will have to address
the court on the
question of whether there has or has not
been breach of section 10 of the Constitution by reason
of apparent delay
to charge the two accused on
investigation which commenced in 1990. That question has
been raised.
="3">Dated this 19th day of June 1996 at
Honiara
SAM AWICH
JUDGE
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