Director of Public Prosecutions v Haikiu [1984] SBCA 1; [1984] SILR 155 (3 October 1984)

[1984] SILR 155

SOLOMON ISLANDS COURT OF APPEAL

DPP

-v-

HAIKIU

Solomon Islands Court of Appeal
(Sir John White P, Connolly and Pratt JJA)
Criminal Appeal No. 2 of 1984

1^st October 1984 at Honiara
Judgment 3^rd October 1984

Criminal Law – burden and standard of proof – whether a “point for determination” within s. 151(1) Criminal Procedure Code – whether specific direction necessary where magistrate or judge sits alone – questions by magistrate or judge to accused or witness – when proper.

Facts:

On 26/3/84 the respondent was found guilty in the Magistrate's Court on a charge of causing grievous bodily harm c/s s.219 of the Penal Code. He was convicted and sentenced to 18 months imprisonment. He appealed to the High Court (Commissioner Bowran) who upheld his appeal on the grounds that the learned magistrate did not address himself adequately on the issue of burden and standard of proof and that the Magistrates cross-examination of the respondent gave the impression of assisting the prosecution. The Director of Public Prosecutions appealed.

Held:

1. the question of the burden and standard of proof were not “points for determination” within the ambit of s.151(1) of the Criminal Procedure Code and there is no rule of law or practice that a magistrate or judge sitting alone must specifically direct himself as to the onus and standard of proof although it is helpful and desirable that he does so.

2. in considering a judgment of a magistrate or judge sitting alone the whole of the background of the case and the whole of the reasons for judgment must be examined to ascertain whether the cardinal rules of law have been applied. On the facts of the present case when applying this test to the judgment of the learned magistrate it was clear that he had applied the correct rules.

3. there is no rule that prevents a magistrate or judge from questioning witnesses or the accused even at length provided the questions are asked to elucidate facts and the questions do not lead to the conclusion that a judge or magistrate has assumed the role of an advocate (dicta of Lord Denning in Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 applied).

Accordingly the appeal was allowed and the original conviction restored.

Cases referred to:

R v Oliva 46 Crim. App. Rep. 241
Nang Hong v Public Prosecutor [1964] 1 WLR 1279
R v Slinger 46 Crim. App. Rep. 244
R v Sparrow 46 Crim. App. Rep. 288
R v Dowell 960 Crim. App. Rep. 4
R v Perks [1973] Crim. App. Rep. 388
R v Kwatefena [1983] SILR 106
Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55

Francis Mwanesalua, Director of Public Prosecutions in person
Andrew Radclyffe, Public Solicitor’s Office for the respondent

White P. Connolly and Pratt JJA: On 26 March 1984 the respondent was found guilty in the Magistrate’s Court at Honiara on a charge of causing grievous bodily harm contrary to s.219 of the Penal Code. On conviction he was sentenced to 18 months imprisonment. The respondent appealed to the High Court against his conviction and sentence. The two relevant grounds on which the appeal was upheld were that the learned Magistrate failed to address himself sufficiently on the burden of proof and that by his lengthy cross examination of the accused he gave the impression of assisting the prosecution. In the High Court the learned Commissioner set aside the conviction holding that the Magistrate had failed to address his mind to the burden of proof, and that by cross examining the respondent at length he appeared to assist the prosecution. The Crown has appealed against the decision of the High Court on the following grounds:-

1. That there is no requirement for a magistrate sitting without a jury or assessors to state and record in his judgment a self direction on the burden and standard of proof.

2. That the learned Commissioner erred in holding that the intervention by the Magistrate gave the impression of assisting the prosecution.

In support of the first ground the Director of Public Prosecutions submitted that there is no absolute rule that a judge or magistrate, sitting without assessors or a jury, must record a self direction as to the burden and standard of proof. Mr Mwanesalua submitted that the Magistrate had reached a verdict after considering and weighing the evidence called for the prosecution and defence. It was submitted that he had reminded himself that he must be sure and that the proper inference to draw from his reasons for judgment was that he had applied the cardinal rules as to the onus and standard of proof in criminal cases. Mr Mwanesalua contended that it was not necessary in a judgment following a trial without a jury, as it was in a summing-up in criminal trials with a jury, to include a specific direction as to the onus and standard of proof.

Mr Radclyffe submitted, first, that a judge or magistrate sitting alone in a criminal trial had a duty under S.151 of the Criminal Procedure Code to state the onus and standard of proof. Section 151(1) provides as follows:-

“Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the court in English, and shall contain the point or points for determination, the decision thereon and the reasons for the decision.”

Mr Radclyffe submitted that the main point for determination was guilt or innocence. He instanced “points” in criminal cases which had been the subjects of decisions including issues arising in sexual cases, such as consent in rape cases, and corroboration where there were accomplices. It was submitted that the onus of proof was such a “point”.

Secondly, Mr Radclyffe submitted that if the Court held that the onus of proof was not “a point” within the meaning of S.151, it was not merely “desirable” or “useful” but “essential” that the onus and standard of proof should be stated in the judgment of a judge or magistrate sitting alone in a criminal trial. R v Oliva 46 Crim. App Rep 241 was relied on. That was a jury trial in which it was stated, “It is essential in every case that the jury should be told that the burden of proof is on the prosecution.” It was submitted that it was equally essential that the cardinal rule was in the mind of the judge or magistrate sitting alone, and that it should be seen to be so; that it should be “clearly revealed”. It was argued that the present case, which the Magistrate had described as “by no means an easy case,” was a clear example of a trial where it was essential that the direction be stated in the judgment.

Returning to S.151(1) of the Criminal Procedure Code, there is no doubt that consent in rape cases and questions involving corroboration are such “points” which must be stated. See for example Chiu Nang Hong v Public Prosecutor [1964] 1 WLR 1279. But Mr Radclyffe was unable to refer to any case in which it had been held that the onus of proof was a “point” within the meaning of S.151. The reason, we have no doubt, is that the fundamental rule as to the onus and standard of proof is not a “point of determination”.

We agree with Mr Radclyffe’s submission under the second limb of his argument that it is essential that the criminal onus and standard of proof are in the mind of a judge or magistrate in cases such as the present. We also agree that it may often be helpful and desirable to refer in specific terms to the onus and standard of proof but we are satisfied there is no rule of law or practice to do so.

In trial by jury in a criminal case the careful direction required as to the onus and standard of proof, which is normal, given in some detail, is the safeguard that the jury will determine whether guilt is proved according to the cardinal rules. The contrast in a trial before an experienced magistrate was illustrated by the words of the learned Commissioner in the present case that he was “sure” the Magistrate was well aware of the principles he had to apply, principles, we would add, which are being applied in our criminal courts every day without specific reference to them.

We have noted in the record of the case in the High Court that counsel for the Crown conceded that having regard to the cases cited in that Court it was essential that the Magistrate should direct himself properly on the burden and standard of proof and it was desirable that such directions “should be placed on the record”. Counsel for the Crown in the High Court seems then to have relied on the proviso. The Commissioner declined to apply it having been referred to Oliva (supra) where the required direction to a jury had not been given and the conviction was quashed. In this Court we were referred to cases, not cited in the High Court, Slinger 46 Cr App Rep 244 and Sparrow 46 Cr App Rep 288, which make it plain that the proviso may be applied when the burden of proof has not been referred to in the summing-up.

The importance of those cases in the present argument is that they also show that no particular form of words or “formula” is required in a summing-up; but that whatever words are used it must be brought home to the jury “that the burden of proof is on the prosecution to prove guilt and not on the prisoner to prove innocence, and, secondly, that the degree of proof is one which has been variously expressed as that the jury must be sure beyond reasonable doubt” – See the Lord Chief Justice, Lord Parker, in Slinger (supra) at p.245. These statements relate to trial by jury but they underline what must be in the minds of a judge or magistrate sitting alone in a criminal case when he reaches his conclusions on the evidence and gives his reasons as he is required to do. Accordingly it is what the judge or magistrate records in his reasons for judgment which must be considered when it is claimed that the cardinal rules were not applied. It is clear that when an appellate court considers the adequacy of a direction on the burden of proof the direction is examined against the whole of the summing-up. See Archbold 40 Ed [sic] para 598. Similarly, in considering a judgment of a magistrate sitting alone the court must examine the whole background of the case and the whole of the reasons for judgment.

In the present case, in the course of his judgment the Magistrate said, “If I am sure Haikiu struck the blow that cut Donga’s ear, then he is guilty ... If it may have been Tena who struck the blow, Haikiu is not guilty ... This is not an easy case, I wish I had a jury or at least assessors to help me. But it is my duty to make up my mind if I can do so without suffering from any real doubt ... So I am quite sure both Donga and Auga are right when they say Haikiu cut Donga’s ear”. In our opinion these passages, and the judgment read as a whole, leave no doubt that the Magistrate had in his mind, and applied, the burden and standard of proof required by the criminal law in determining the present case.

We now turn to the second ground of appeal; that the learned Commissioner erred in holding that the intervention by the Magistrate at the trial gave the impression of assisting the prosecution.

Mr Mwanesalua submitted that the questions put by the learned Magistrate did not amount to improper interference in the trial. He submitted that a judge or magistrate has the right to put questions to witnesses at any time in the hearing in order to assist in deciding the case provided that the recognized rules are observed. He relied on two cases which were not cited in the High Court, R v Dowell [1960] Cr App Rep 4 and R v Perks [1973] Cr App Rep. 388, as illustrations of the rules governing questions from a judge or magistrate. It was submitted that such questions must not have the result of preventing a defendant or his counsel from presenting his case property. Such questions must not be asked in a manner which suggest that the judge or magistrate is assuming the role of advocate by going beyond questioning to elucidate facts to assist in deciding the case.

Mr Radclyffe accepted that the Magistrate was entitled to ask questions and that the questions had been asked at appropriate times without interrupting the course of the trial. It was not suggested that the questioning was hostile. Mr Radclyffe’s contention was simply that the magistrate by his questions “had given the impression that he was assisting the prosecution”. He relied on R v Kwatefena [1983] SILR 106.

In that case Daly CJ came to the conclusion, because of the cumulative effect of a number of omissions revealed by the record and other matters, which included the manner in which questions had been put to the accused, that the trial was unsatisfactory. As a result the conviction was set aside. In the course of his judgment Daly CJ said, “it is wrong for the Court to give the impression that it is doing the work of one side.” That is undoubtedly true if the questioning suggests that the judge is satisfied that the accused is guilty; or that it shows, as Lord Denning MR said in Jones v National Council Board [1957] EWCA Civ 3; [1957] 2 QB 55, that the judge has ‘dropped the mantle of the judge and assumed the role of an advocate.” Further, a judge must not cross examine an accused when giving his evidence in chief at such length or with such severity that he is assisting the prosecution.

These references to instances of interference make it clear something far removed from questions to elucidate the facts must be revealed. In the present case, having heard counsel and considered the questions put by the Magistrate, we are unable to agree that they were questions which could properly be regarded as “giving the impression of assisting the prosecution.” Mr Radclyffe submitted that questions put should be “neutral” with a view to “clarifying rather than developing points.” The word “neutral” was used by Daly CJ in Kwatefena (supra) at p.107 in this context, “such questions should usually be couched in neutral terms”. If that means “without taking sides”, as previously explained, we agree, but it needs to be made clear that a judge is not expected to refrain from putting a question because the answer may favour one side or the other. Answers to questions so put cannot be relied on as showing that a judge or magistrate was helping one side.

Having considered the submissions of counsel as to the questions put by the learned Magistrate we are satisfied that they should be regarded as properly put to assist in elucidating the facts.

For the reasons given above the appeal is allowed with the result that the conviction entered in the Magistrate’s Court is restored. Mr Radclyffe has informed the Court that he has no application to make regarding sentence.