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R v Bou [2021] SBHC 86; HCSI-CRC 554 of 2020 (31 March 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 554 of 2021

REGINA

V

MILTON KELLY BOU

Date of Hearing: 31 March 2021
Date of Judgment: 31 March 2021

Mr. S Tovosia for the Crown
Mr. B Harunari for the Defendant

Lawry: PJ

JUDGMENT OF THE COURT

Introduction

1. This is an appeal against conviction and sentence brought by Milton Kelly Bou.
2. The Appellant pleaded guilty to one count of offensive behavior at the Police premises in Yandina and one count of disobeying lawful orders. In respect of those charges he was sentenced to one month’s imprisonment and two months’ imprisonment respectively, those sentences to be served concurrently with the sentence imposed for a third charge for which he was convicted after trial.
3. The Appellant proceeded to trial after pleading not guilty to one count of assaulting a Police Officer, namely, Sergeant Joseph Devu. He was convicted in the Magistrate’s Court at Yandina and sentenced to 2 years’ imprisonment. He appeals against his conviction and also appeals against the imposition of a good behavior bond in addition to sentence of two years’ imprisonment sentence.
4. The grounds of his appeal are set out in the Petition to Appeal as follows:
   1. “That the conviction on count 2 is unsafe and cannot be supported having regard to the evidence. The Magistrate failed to properly consider and apply the onus and criminal standard of proof.
   2. That Counts 1 and 2 are bad for duplicity.
   3. That the Magistrate erred in law in permitting prosecution to address the court in closing submissions when the defendant elected to remain silent or decide not to give evidence.
   4. That the sentence of 2 years’ imprisonment as imposed by the Magistrate and the subsequent order to be of good behavior after his release from custody in his own recognizance the sum of $100.00 are manifestly excessive.
   5. That the Magistrate erred in law to order the Appellant to be of good behavior for 1 year in his own recognizance a sum of $100.00, which amounted to double jeopardy.”

Background

5. When this appeal came before the Court on 10 March 2021, the Court asked counsel for confirmation that at the trial, the defence had not called evidence and for confirmation that the prosecutor had given a closing address. The Court drew the attention of counsel to section 200 of the Criminal Procedure Code and the Court of Appeal decision of R v Abia [2019] SBCA 4. The Court advised counsel that as the Appellant was serving his sentence of imprisonment, the appeal would need to be heard without delay. The appeal was listed to be mentioned on 24 March 2021 for the Crown to confirm what had happened at the Magistrates Court and to consider its position in relation to section 200 of the Criminal Procedure Code.
6. Before 24 March the Court received the documents from the Magistrates’ Court. Those documents confirmed that at the trial the defence did not give or call evidence. The prosecution was then permitted to give a closing address. On 24 March 2021, the Court confirmed that position with counsel. As the Easter vacation was scheduled to commence on 2 April 2021 the appeal was listed to be heard on 30 March 2021. With the agreement of both counsel for Appellant and counsel for the Respondent the Court directed that the submissions to be filed by both counsel deal solely with the issue raised in ground 3 and as a consequence the issue in ground 5, those submissions to be filed by both the Appellant and the Respondent by the close of business on Monday 29 March 2021.
7. It is recorded that counsel for the Respondent advised the Court that he expected to be engaged in a trial on 30 March 2021. Because the Appellant was in custody and because of the Easter vacation, and because of the apparent breach of section 200 of the Criminal Procedure Code, the Court directed that the appeal would be heard on 30 March 2021 and that if it was necessary for another prosecutor to appear to argue the issue, then those arrangements should be made. Counsel was advised that if they wished to simply make oral submissions rather than provide written submissions the Court would accept that. Counsel were directed to contact the Judge’s Associate if there were to be any problems. Counsel were also directed that in the event that counsel was not in a position to argue the appeal then they should be prepared to make submissions on the grant of bail pending the appeal.
8. The Appellant filed detailed written submissions with authorities and the Court’s stamp shows them to have been filed at 14:52 on 29 March 2021. No submissions were filed on behalf of the Respondent. When the appeal was called on 30 March 2021 at 1.30pm the Court was advised that the prosecutor in carriage was engaged in another Court and that the prosecutor appearing was not in a position to argue the appeal. She confirmed that the prosecutor in carriage had not completed submissions.
9. The Court was left in the position that the fixture had to be vacated. The appeal was rescheduled to be heard after the criminal list concluded on Wednesday 31 March 2021 at 1.30pm. Counsel was advised that the Court expected to hear argument on the appeal. Further, counsel was advised that if the appeal could not be completed counsel should be in a position to agree on terms for bail pending the appeal.
10. The Court records that the assumption on the part of the Respondent that there was no need to comply with Court directions and then have another prosecutor appear to say that the respondent was not in a position to proceed is unacceptable. The Appellant was in custody and was entitled to expect that his appeal would be heard.
11. On 31 March the prosecutor in carriage of the appeal for the Respondent appeared. He apologised for not being present the previous day and explained that he had understood that the appeal would be argued on 31 March 2021. He then advised that he had not completed the submissions on behalf of the Respondent. He sought an adjournment to a further date. The Court then asked for the agreed draft conditions for bail pending the appeal. The prosecutor then advised the Court that the Respondent opposed bail pending the appeal. As a result, the Court stood the appeal down to the end of the list for the appeal to be heard, then next opportunity for the hearing of the appeal being after 16 April 2021.
12. The Court then heard the appeal after the remaining cases had been deal with.
13. The position taken by the Respondent in relation to bail is incomprehensible in light of the concessions subsequently made on behalf of the Respondent in relation to the appeal.

Ground 3

14. As set out above, the third ground of appeal is set out as follows:
    • “That the Magistrate erred in law in permitting prosecution to address the court in closing submissions when the defendant elected to remain silent or decide not to give evidence.”
15. In the notes of evidence the trial Magistrate recorded on 24 September 2020 at 1.30 “D/C Max – For Mr Milton, we will not call any evidence, no application on No case to answer, we close our case
    • D/C Mr Harunari – for my clients, we also close our case”.
16. It is noted that before the lunch break Mr Harunari had indicated that his clients would not give evidence and would not call any witnesses. The Court then adjourned the case until 9.30 am for closing addresses. The Magistrate recorded: “I will not make orders for written submissions given we are on circuit but I will expect counsels and prosecution to support arguments with the law and case authorities”.
17. For the Appellant, counsel appearing was not counsel at trial and relied on the submissions filed in support of the appeal. For the Respondent, counsel accepted that the defence had not given and had not called evidence and that the prosecutor had been called on to provide a closing address and did so. For the Respondent counsel submitted that as a result the trial had not followed the procedure set out in section 200 of the Criminal Procedure Code. The Respondent then submitted that the trial had therefore miscarried.
18. Section 200 of the Criminal Procedure Code deals with the procedure concerning addresses in trials in the Magistrates’ Court and provides:
    • “200. - (1) Subject to the provisions of subsection (2) the prosecutor shall be entitled to address the court at the commencement of his case, and the accused person or his advocate shall be entitled to address the court at the commencement and in conclusion of his case.
    • (2) If the accused person, or any of one of several accused persons, adduces any evidence, the prosecutor shall, subject to the provisions of section 143, be entitled to address the court at the close of the evidence for the defence and before closing speech (if any) by or on behalf of the accused person or any one of several accused persons.”
19. Section 200 (2) clearly does not apply as there was no evidence called by or on behalf of the defence. Subsection (1) permits the prosecution to address the Court at the commencement of the prosecution case. The Accused person is entitled to address the Court at the commencement and at the conclusion of his case. There is no power for the prosecutor to address the Court after the defence has closed its case unless one or more of the defendants has adduced evidence. For completeness, section 143 has no application in the present case as no evidence was called by the defence.
20. As the Appellant submits, the requirement of the rule has its foundations in the Constitutional right to a fair hearing. Section 200 is not subject to the Court’s discretion. By permitting the prosecutor to address the Court after the evidence when the defence has not adduced evidence has resulted in a trial that is not according to law.
21. The rules have a difference procedure for trials in the High Court. The process in the High Court is governed by section 274 of the Criminal Procedure Code. In the High Court the Crown has the right to give a closing address before the defence closing address. The Court of Appeal emphasised the importance of following the prescribed rules in R v Abia [2019] SBCA 4. In Abia the Court received written submissions from the prosecutor after the Court had received the defence closing address. At paragraph [7] the Court of Appeal said:
    • “The prescribed order is that the Crown shall make its closing address and then the defence will make its closing address. After that the Crown has no right to address the court other than to raise anything that amounts to a mistake in the defence submission, e.g. as to what appears in a transcript, or on a question of law still in issue.”
22. The Court went on to say at paragraph [9].
    • “In normal circumstances where addresses are oral, the Crown would make their address first and then the defence would make a final address. Where submissions are to be made in writing, even if those submissions are served on the opposing side, the Crown does not then gain any opportunity to comment by way of response to that closing address other than set out below, i.e. correct factual mistakes. To allow such a response is to defeat the rule contained in section 274, which will result in a trial not according to law.”
23. The same principal applies in the present case. The prosecution had the opportunity to make an opening address. There was no evidence adduced for the defence. To permit the prosecution to address the Court at the close of the evidence is to defeat the rule contained in section 200 of the Criminal Procedure Code resulting in a trial not according to law. For that reason, the conviction must be quashed.
24. After hearing submissions, the Court is satisfied that the Appellant had been in the custody of the Police or Corrections from 11 May 2020 until 31 March 2021, that is more than 10 and a half months. That imprisonment necessarily has been away from his home province. The sentence of 2 years’ imprisonment would have him released after serving one year and four months’ imprisonment. That is a little over 5 months away. It may be possible that a re-trial could take place within that time but in the event of a conviction it is likely he would be released immediately. I note the prosecution attitude to bail in this matter. Therefore the Court directs that there be no re-trial.
25. The Court’s decision on Ground 3 mean that Grounds 1 and 2 do not need to be considered.

Ground 5

26. Ground 5 of the Petition to Appeal is as follows:
    • “That the Magistrate erred in law to order the Appellant to be of good behaviour for 1 year in his own recognizance a sum of $100.00, which amounted to double jeopardy.
27. Section 32 (1) of the Penal Code sets out the relevant provision for the imposition of a “good behaviour bond”. The section provides:
    • “32.- (1) A person convicted of an offence may, instead of or in addition to any punishment to which he is liable, be ordered to enter into his own recognisance, with or without sureties, in such amount as the court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the court, not exceeding two years, and may be ordered to be imprisoned until such recognisance, with sureties if so directed, is entered into; but so that the imprisonment for not entering into the recognisance shall not extend for a term longer than six months: Provided that no order shall be made under this section where the person convicted has been sentenced to a term of imprisonment of more than six months.”
28. The Appellant argues that to be bound over in addition to receiving a sentence of imprisonment is double jeopardy. That submission is contrary to the terms of section 32 (1) which uses the term “instead of or in addition to any punishment to which he is liable”. The purpose of the provision is to provide an incentive to modify behaviour and not double punishment. But for the conviction on Count 2 the Magistrate was entitled to impose such a sentence.
29. What the Magistrate appears to have overlooked is that the proviso to the section prohibits the imposition of such an order where the person has been sentenced to a term of imprisonment of more than six months. The Appellant was sentenced to a term of imprisonment of two years. The Magistrate therefore had no power to impose the “good behaviour bond” on him pursuant to section 32 (1) of the Penal Code. Ordinarily that part of the sentence would need to be quashed.
30. However the effect of this decision is to quash the conviction on Count 2. It was the sentence on that count that carried the sentence of 2 years’ imprisonment. On the other charges faced by the Appellant, the Magistrates’ Court had sentenced him to a total of two months’ imprisonment. Such a sentence would permit an order under section 32(1) of the Penal Code.
31. The Appellant admitted his conduct that gave rise to those convictions. The Magistrate clearly had in mind an incentive for the Appellant to change his behaviour following his release from custody. Although the order could not be lawfully imposed when he was sentenced to two years’ imprisonment, it would be totally appropriate following a sentence of two months’ imprisonment.
32. It follows that this Court will not interfere with the section 32 order.

The orders of the Court are therefore:

1. The conviction on Count 2 alleging an assault on Sergeant Devu is quashed.
2. The charge will not be remitted to the Magistrates Court for re-trial.
3. The order pursuant to section 32(1) of the Penal Code is confirmed.
4. The Appellant is to be released at the rising of the Court once he has entered into his own recognisance, in the sum of $100.00, on the condition that he shall keep the peace and be of good behaviour for a period of 12 months from the date of his release.

By the Court
Justice Lawry PJ