[1984] SILR 28

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Cases Nos.5, 6 & 7

DPP -v- GLASS

DPP -v- KUPER

KUPER -v- DPP

High Court of Solomon Islands
(John Freeman, Commissioner)
Criminal Appeal Cases Nos. 5, 6 & 7 of 1986

10 May at Honiara
Judgment 11 May 1984

Trial before magistrate - when possible to bring to a conclusion before hearing all evidence - effect of S.10(1) of the Constitution - binding over (to keep peace etc.) under S.32(2) Penal Code - at what stage possible.

Facts:

(The following statement of facts is taken from the judgment of the Court). In two separate cases Vicky Glass was charged with assaulting Mary Kuper, causing her actual bodily harm, and with affray; Mrs Kuper was charged with affray, arising out of the same incident. Both pled not guilty. After hearing the evidence in chief of one witness against Mrs Glass, and then immediately after taking the plea of Mrs Kuper, the learned Magistrate addressed counsel for the prosecution and defence in each case. He described the incident as a “domestic” one, said he was considering binding over each defendant to keep the peace, and invited representations. Each defendant consented and was bound over in $50 for 6 months. That was the end of the trial in each case, as no other order was made by way of disposing of the charge.

The Director of Public Prosecutions appealed against the orders made in both Mrs Glass’s and Mrs Kuper’s case on the ground that the magistrate had failed to try the cases to their end as required by Part VI of the Criminal Procedure Code, Mrs Kuper appealed on the same ground, also claiming that she had not been given a fair hearing as required by S.10 (1) of the Constitution. All three appeals were consolidated and heard together.

Held:

1. S. 182 of the Criminal Procedure Code (“... the court shall proceed to hear the witnesses ...”) is mandatory, except where e.g. the charge is withdrawn or adjourned or the proceedings stayed or terminated by reconciliation (Obiter) magistrates have power to stop a case to prevent abuse of the process of the court, but this did not apply here. So the magistrate had no power to bring the trials to an end when he did.

2. Before an accused can be bound over to keep the peace under S. 32(2) of the Penal Code, the trial must either be concluded or stopped for one of the reasons set out in the Penal Code and shown above.

3. In this case, the accused were given a fair hearing under S. 10(1) of the Constitution in the sense that the magistrate invited them to make representations as to whether or not they should be bound over. However, as the trial had not been properly concluded or stopped, they had not been given a proper hearing on the charges against them. The makers of the Constitution could not have contemplated orders being made on the basis of proceedings which did not comply with it. It followed that the binding-over orders were against the Constitution as well as the Penal Code.

4. The binding-over orders might very well have been in accordance with the merits of the case, but there was no material before the Court on which it could be said so for sure. So the proviso to S. 292(1) of the Criminal Procedure Code could not be applied to uphold them. The orders were quashed, but in view of the practical difficulties of ordering the hearing of the cases to continue, proceedings in each of them were directed to be stayed.

Thomas Kama for the Director of Public Prosecutions
Marion Allardice for Mrs Glass
John Muria, acting Public Solicitor, for Mrs Kuper

John Freeman: These are three consolidated appeals from orders made by the Principal Magistrate for the Central District, sitting at Gizo on 14 February, 1984. (The Court went on to state the facts of the case).

The Director of Public Prosecutions appeals against the order in each case on two grounds. First he says that the procedure adopted by the learned magistrate failed to comply with the requirements of Part VI of the Criminal Procedure Code. Next he complains that the order made was too lenient a disposal of each case. The second ground has not been argued. So I need not go into the facts of the incident, since Mrs Kuper’s appeal against the order binding her over followed the Director’s first ground, though relying also on the Constitution.

The Director’s real complaint is not so much against the orders made, as against the learned magistrate’s failure to proceed with the trial. It would undoubtedly be held in England and Wales that this kind of complaint must be made by way of application for certiorari to quash the orders made and for mandamus to compel the magistrate to try the case to its end. I am reluctant to introduce such complications into the self-contained statutory framework of Solomon Islands criminal law. As it happens, the point was not taken by anyone, so I am not obliged to decide it and can deal with the appeals on their merits.

However, the differences between complaints against what the learned magistrate did, and did not do, continue to bedevil this case. It is best to put the main question first: had he power to stop these cases after hearing part or none of the prosecution’s evidence? S. 182 of the Criminal Procedure Code is clearly mandatory:-

“If the accused person does not admit the truth of the charge, the court shall proceed to hear the witnesses for the prosecution and other evidence (if any).” 

Of course, there are exceptions, under the legislation itself, such as where the charge is withdrawn or adjourned, or the proceedings stayed or terminated by reconciliation. But it is not suggested that any of those exceptions apply here.

Only counsel for Mrs Glass argued that a magistrate has the power to stop a case without hearing the evidence or any of these statutory exceptions applying. She suggests that this power exists to prevent abuse of the process of the court, but does not claim that there was any question of abuse in this case. I think magistrates probably do have a power to stop cases to prevent abuse of process, though this has recently been doubted in the very different conditions of England and Wales. But I need not decide that point, as it is quite clear that, if such a power exists, it can only be used for its proper purpose, which did not apply here. As neither this power nor any of the statutory exceptions applied, then in my judgment counsel for Mrs Kuper was right in claiming that the stopping of the trial in the circumstances of his client’s case denied her the right to a fair hearing given by S. 10(1) of the Constitution. Counsel for the Director did not argue otherwise.

It follows that the learned magistrate had no power to stop these cases when he did. Of course if he had suggested to counsel for the prosecution that he might like to withdraw the case, and counsel had agreed, no possible objection could have been made on appeal. But that is not what happened, largely because all concerned had been thinking only of the question of whether each accused should be bound over. The learned magistrate was only addressed on that point, not helped by any submissions on the requirements of the Criminal Procedure Code.

As the learned magistrate had no power to stop the cases, could he bind over the accused? Counsel for the Director says he could not, as he had not complied with the Criminal Procedure Code. Counsel for Mrs Kuper agrees and his argument on the Constitution also applies to this point.

However I reject it as far as the binding-over is concerned: the record shows that on this point he was given the chance to make such representations as he saw fit, and indeed took advantage of it. Only counsel for Mrs Glass supports the order made in her client’s case. She points to the power given by s. 32(2) of the Penal Code to bind over the defendant “whether or not the complaint be dismissed”. She says first that these words show it does not matter how the charge is disposed of, or even whether it is disposed of at all; next, that in this case the charge was in effect dismissed. She says this was done merely by the learned magistrate binding over the defendant, without any express words being used. I hold that the words of s. 32(2) necessarily imply that the trial must be brought to some kind of conclusion in accordance with the statutory procedure for the power of binding-over to be exercised. Either a decision must be reached on all the evidence required to be called, or the charge must be withdrawn (which would include reconciliation). Anything else would, as already shown, infringe s10 (1) of the Constitution. It can scarcely be suggested that the Penal Code confers a power to make an order as the result of proceedings which are against the Constitution. So the learned magistrate had no power to bind over either defendant when he did.

Counsel for Mrs Glass nevertheless asks me to dismiss the appeal against the order made in her client’s case under the proviso to s. 292(1) of the Criminal Procedure-Code on the ground that no substantial miscarriage of justice has occurred. The short answer to that request is that no-one can possibly know whether justice has been done, unless it is clear that the court below would have reached the same result if it had followed the law. Here the result reached by the learned magistrate may well have been an extremely sensible, practical and just one, but I am in no position to say so for sure. Only a small part of the evidence has been recorded, and though the defendants consented to be bound over, they might not have done so if the trials had been allowed to go on to a final decision.

So all three appeal must be allowed. Counsel for the Director invites me to send both cases back for re-hearing (technically “remit them with my opinion”) under s. 292(1) of the Criminal Procedure Code. Counsel for Mrs Kuper points out (and this is agreed) that though his client is still within the jurisdiction of the Court, Mrs Glass is not. He submits that it would be obviously unfair for Mrs Kuper to be tried again when Mrs Glass could not be. What is more, it might be difficult from a practical point of view, as each of them would undoubtedly be the main witness against the other. The force of these arguments is irresistible.

So I quash the orders made by the learned magistrate, but direct a stay or proceedings in each case, not to be lifted without the leave of this Court or the Court of Appeal.