R v Salauneune [1940] FJLawRp 3; [1875-1946] 3 FLR 269 (13 March 1940)

[1875-1946] 3 FLR 269

SUPREME COURT OF FIJI

Criminal Jurisdiction

R

v

SALAUNEUNE

Corrie, C.J.

March 13, 1940

District Commissioners Ordinance, 1876-s.26^[1] - language of the Court-evidence at preliminary inquiry not interpreted aloud-objection to validity of proceedings.

A District Commissioner conducting preliminary enquiry without the assistance of an interpreter recorded the evidence of Fijian speaking witnesses in English and "read back" to the witness the District Commissioner's translation of the record in Fijian. No English translation was made aloud in open Court.

HELD –

On objection prior to trial, that the procedure was not in conformity with s.26 of the District Commisioner's Ordinance, 1876 but was not void.

[EDITORIAL NOTE.-As to the language of the Court at preliminary enquiries vide Criminal Procedure Code (Cap. 4) s. 189, 190. Revised edition Vol. 1 p.117.]

PRELIMINARY OBJECTION TO THE JURISDICTION OF THE SUPREME COURT on charges of carnal knowledge and attempted carnal knowledge. The facts appear from the judgment.

The Attorney-General, E. E. Jenkins, for the crown.

R. Townsend, for the accused.

CORRIE, C.J.-Objection has been taken by the defence to the jurisdiction of this Court on the ground that the proceedings at the preliminary inquiry held by the District Commissioner under the Indictable Offences Ordinance 1876, upon which the order of committal of the accused for trial is based, were void, in that they did not conform to the requirements of s. 26 of the District Commissioners Ordinance 1876. That section and the three immediately following sections reads as follows:-

"26. All judicial proceedings before district commissioners or process whatsoever issued by such district commissioners except as hereinafter provided shall be in the English language.

27. If a witness does not understand the English language the district commissioner shall interpret or cause to be interpreted to him his evidence as taken down in the language in which it was given or in a language which the witness understands.

28. If the evidence is given in a language not understood by the accused person it shall be interpreted to him in open court in a language understood by him.

29. All warrants summonses subpoenas recognizances notices orders certificates attachments precepts and other process whatsoever may when issued to or against natives be in Fijian."

The proceedings at the preliminary inquiry therefore should have been in English; that is to say, should have been intelligible to any person present who understood only the English language.
The procedure actually adopted was that each witness gave his evidence in Fijian, and no English translation of the evidence was given in open court, but the District Commissioner recorded the evidence in English and interpreted to the witness in Fijian the evidence as taken down.

This procedure, while satisfying ss. 27 and 28, was not in conformity with s. 26, but it does not follow that the proceedings were void, that is to say, that they were not proceedings upon which the order of committal could be founded.

The sworn depositions of the witnesses were necessarily made in Fijian as they knew no other language; and though the depositions were not translated into English orally, they were properly recorded in English by the District Commissioner. The giving of those depositions in Fijian and the making of that English record were necessary steps in the proceedings, even if the provisions of s. 26 had been fully observed; it is upon those depositions and that record that the order of committal rests and it cannot be maintained that there were no proceedings to support the order.

The objection therefore fails.

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^[1] Repealed. Vide Criminal Procedure Code, Cap. 4. Ss. 189, 190.