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Regina v Mede [2010] SBCA 4; CA-CRAC 20 of 2009 (26 March 2010)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

The respondent was convicted in the Central Magistrates Court of indecent assault and trespass and sentenced to 2 years imprisonment from 23 February 2009. He appealed by way of petition pursuant to S. 285 of the Criminal Procedure Code to the High Court against conviction on the ground that "the learned Magistrate acted in such a manner as to cause a reasonable apprehension of bias" and sought an order that "the conviction be considered unsafe and unsatisfactory and therefore quashed".

The learned High Court judge stated the case of the appellant before him as being:

"... the procedures adopted by the learned magistrate was a fundamental breach of common law adversarial requirements in criminal cases that they allow a reasonable observer to perceive bias on the part of the magistrate or that adversarial rules were so breached that this fact is sufficient to provide the basis for quashing the conviction."

On the other hand counsel for the respondent before the High Court concentrated on bias and submitted that bias as legally defined was not established. It was pointed out that the magistrate had not been asked to disqualify himself on the ground of bias. Counsel submitted there was a distinction in law between bias and conduct of the court contrary to the adversarial procedure which may render a conviction unsafe and unsatisfactory. Finally he submitted that nothing in the procedure adopted by the magistrate deprived the accused of a fair trial.

The learned High Court judge in his reasons set out the procedure adopted by the magistrate which was the subject of challenge. Details of that procedure will be set out herein later. He set out the opposing arguments and considered at some length the test for bias. He then noted the magistrate had "clearly adopted the inquisitional procedure in his approach and totally ignored the adversarial system which has been part of the common law". He referred to a number of authorities where a conviction had been held to be unsafe and unsatisfactory because the judge had adopted the role of an advocate.

The conclusions of the High Court judge are expressed in the following passages:

"It is clear the circumstances of the case and the combination of the procedure adopted by the learned magistrate will no doubt leave in the mind of the fair minded person sitting in the body of the court that there is a real possibility or real danger that the court is biased. ..... The court is of the view that the principle of common law of the adversarial system cannot be simply changed and allow anything to happen......

... The court has an important role to play in ensuring the system of justice is protected and preserved at all times guaranteeing public confidence in our system of justice is not eroded in any way. The court in the circumstances considers that the cumulative effect of the procedure adopted by the Lower Court is such that the conviction recorded as a result of this trial is unsafe and unsatisfactory."

From that decision the Director of Public Prosecutions has appealed to this court pursuant to section 22 (1) of the Court of Appeal Act which provides for an appeal on a point of law only. The grounds of appeal are:

1. The learned judge erred in finding that the alleged actions of the learned magistrate gave rise to a reasonable apprehension of bias.

2. The learned judge erred in finding that the alleged actions of the learned magistrate amounted to the imposition of an "inquisitional system".

3. The learned judge erred in finding that the alleged actions of the learned magistrate were unfair.

4. The learned judge erred in ordering the quashing of the conviction and the immediate release of the respondent.

5. The learned judge erred in not ordering that the matter be remitted back to the Magistrates Court for retrial.

The complainant was an 8 year old girl. The allegation was that the respondent, a man aged 43 who was known to the complainant, told her to lift up her skirt and then touched her private parts. She was not wearing underwear and there was no suggestion of penetration.

The only witnesses for the prosecution called on this trial were the complainant and her mother. The respondent gave evidence denying the conduct in question.

In the course of his reasons the Magistrate said:

"Given the age of the complainant it was agreed that all questions to her would be asked either by or through the court."

The court file contains the magistrate’s notes of the evidence, but there is nothing therein indicating acceptance by the respondent’s legal advisers of that course. Nor does it appear that there was any formal submission made to the Magistrate that such a course would deprive the respondent of a fair trial. The notes of evidence do not indicate who asked questions of the complainant either in chief or cross-examination.

Ms. Constance Hemmer was legal counsel for the respondent at trial and she was assisted by Ms. Kylie Anderson, another Legal Adviser in the Public Solicitor’s office. Both made affidavits which were before the High Court. A number of complaints were made about the way in which the Magistrate conducted the trial but it is only necessary to refer in detail to the way in which the complainant was examined and cross-examined.

At the commencement of the trial the police prosecutor handed a written copy of his opening to the Magistrate. The complainant’s mother was the first witness called.

According to Ms. Anderson the complainant’s evidence was taken as follows:

"The learned Magistrate conducted the entire evidence in chief of the complainant. At no time did the prosecutor ask the complainant any questions. At the conclusion of the evidence in chief the Magistrate said to the prosecutor words to the effect "We don’t need any more questions officer unless there is anything specific". The prosecutor indicated that he did not have any more questions and the evidence in chief was then completed.

When the complainant was cross-examined the learned Magistrate decided that all questions would go "through him". The learned Magistrate would not entertain any objection to this approach. As a result the questions asked by Ms. Hemmer in cross-examination were frequently rephrased and thereby changing the effect of the question."

According to Ms. Hemmer:

"When the complainant was called, all examination in chief questions was put to the complainant by the learned Magistrate using the prosecutor’s opening address.

That at end of the examination in chief questions, the learned Magistrate said to the prosecutor "I don’t need any more questions officer, unless there is anything specific." The prosecutor did not have anything to add.

During cross-examination of the complainant, all questions put to the complainant were rephrased by the learned Magistrate, thereby demeaning the effect of the questions.

That a reasonable person would conclude that the prosecution case was conducted entirely by the learned magistrate."

There was also an affidavit from the police prosecutor, Michael Manetavua. He deposed that during a conference with all counsel before the hearing commenced the Magistrate stated that questioning of the complainant "will be conducted quite differently as victim was only eight or nine years and that all questions will be put to the presiding Magistrate and then to the complainant." He claimed there was some exaggeration in the affidavits of Anderson and Hemmer but none was particularized. He did not directly challenge the passages quoted above.

Both Hemmer and Anderson alleged that the majority of the cross-examination of the respondent was conducted by the Magistrate. Again that contention is not challenged by the police prosecutor in his affidavit.

Given what was said by the Magistrate in his reasons and the contents of the various affidavits it is clear that the only questions directed to the complainant, evidence in chief and cross-examination, were by the Magistrate who was the person charged with determining whether the respondent was guilty or not guilty. It was for that reason that it was held in the High Court that the respondent was deprived of a fair trial and the conviction was unsafe and unsatisfactory.

The Magistrate said the procedure followed was by agreement and that is disputed by the legal representatives at trial for the respondent. That factual dispute need not be resolved because it would have been a grave dereliction of the duty they owed their client for the lawyers to have agreed to such a course. Even if they had, the respondent would have been entitled to contend he was deprived of a fair trial.

Though it was not referred to either in the High Court or during the hearing in this court it is salutary to note the fundamental rights of an accused person conferred by the Constitution of the Solomon Islands. Section 10 thereof provides that "any person... charged with a criminal offence....shall be afforded a fair hearing within a reasonable time by an independent and impartial court...". The section goes to specifically provide:

"Every person who is charged with a criminal offence - ...

(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice;

(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court....."

That enshrines in this jurisdiction the common law adversarial system. Where a citizen of the Solomon Islands is deprived of the right to cross-examine a critical prosecution witness by counsel of his choice the trial must be regarded as unfair and any resulting conviction unsafe and unsatisfactory.

What transpired in this case was so serious a departure from a traditional trial at common law and in breach of the respondent’s Constitutional rights that the conviction cannot be allowed to stand. On the appeal to the High Court the stated ground of appeal was bias and it may well be that, if necessary, it would be open to hold that the conduct here demonstrated bias. But it is preferable to determine the matter on the ground of unfairness in that the accused person was deprived of the opportunity of putting forward his defence through the lawyers of his choice. Given the way in which the matter was argued in the High Court that was the proper way of determining the appeal.

Much was made in support of the procedure followed by submitting that it had not been proved that the Magistrate altered the thrust or intent of the questions in putting counsel’s cross-examination to the complainant. But that is irrelevant. The fault lies in the fact that all questions in cross-examination were put to the complainant by the Magistrate and it is irrelevant whether that was done accurately or not.

It is not a case, for example, of a judge intervening because the cross-examination of a child witness was over-bearing or because the young witness was having difficulty in understanding questions put by a lawyer.

The above approach is in accordance with the reasoning in many authorities. Reference need only be made to:

Jones v National Coal Board [1957] EWCA Civ 3; (1957) 2 Q.B. 55 at 63 – 4;

R v Mawson [1967] VicRp 23; (1967) V. R. 205 at 207 – 8;

Ratten [1974] HCA 35; (1974) 131 C.L.R 510 at 517;

Butler (1953) 70 W.N. (NSW) 222 at 224;

R v Esposito (1998) 105 A. Crim. R. 27 at 56-7;

R v Thompson (2002) NSW CCA 149

In this jurisdiction Daly C.J. quashed a conviction as being unsafe and unsatisfactory where there had been undue intervention in the trial by the magistrate: R v Kwatepena (1983) SBHC 3. In the course of his judgment he said:

"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 questions before the prosecutor had cross- examined at all, that impression may well have arisen."

In all the circumstances this court is not persuaded there was any error of law in the determination by the High Court that the conviction should be set aside as being unsafe and unsatisfactory.

The High Court judge however not only quashed the conviction but he ordered the immediate release of the respondent. No retrial was ordered. The appellant in this court seeks an order, if the original conviction remains quashed, that there be a retrial.

No submissions were made to the High Court judge on the question of a re-trial. It was obvious to the judge that the present respondent was still in custody when the matter was before him. The judgment quashing the conviction was handed down on 13 November 2009 meaning the respondent had spent nearly 8 months in custody. Undoubtedly that was considered to be a relevant matter by the High Court judge in exercising his discretion pursuant to S. 293 of the Criminal Procedure Code.

This court is not persuaded there was any error of law in the High Court judge exercising his discretion in the way in which he did.

The appeal should be dismissed.

Sir Robin Auld P
President of the Court of Appeal

McPherson JA
Member of the Court of Appeal

Williams JA
Member of the Court of Appeal