Director of Public Prosecutions v Sanau & Hou [1986] SBCA 4; [1987] SILR 1 (17 January 1986)

[1987] SILR 1

IN THE SOLOMON ISLANDS OF COURT OF APPEAL

Criminal Appeal Case No.3 of 1985
Criminal Appeal Case No.7 of 1985

DIRECTOR OF PUBLIC PROSECUTIONS

v

SANAU AND HOU

TANABOSE

v

DIRECTOR OF PUBLIC PROSECUTIONS

Solomon Islands Court of Appeal
(Sir John White P, Mari Kapi and Connolly JJA)

Criminal Appeal Case No.3 of 1985 Criminal Appeal Case No.7 of 1985

Hearing: 14th January, 1986
Judgment: 17th January, 1986

Appeal - revision - whether competent to exercise powers of revision under s. 50 of the Magistrates Court Act, an appeal having been filed.

Appeal - Constitution - whether power of summary dismissal of appeal under s. 287 (2) of the Criminal Procedure Code consistent with requirement for proceedings to be in public under s.10 (a) of the Constitution.

Facts:

Sanau and Hou appealed against their convictions in the Magistrates’ Court for drinking in a public place. Thereafter, the Chief Justice set aside the convictions by a revision order. Tanabose was convicted in the Magistrates’ Court of receiving and appealed to the High Court against sentence. The Chief Justice summarily dismissed the appeal.

Held:

1. Once an appeal has been filed, the proviso to section 50 of the Magistrates’ Court Act precludes revision under that section.

2. The overriding effect of the requirement that all court proceedings be held in public except with the agreement of parties, under section 10(9) of the Constitution, is such that the power of summary dismissal of appeals under section 287(2) of the Criminal Procedure Code is void.

Both appeals allowed.

Counsel: Case (1) Mr John Freeman (Acting DPP) for Appellant
Mr Andrew Radclyffe for Respondents

Case (2) Mr Andrew Radclyffe for Appellant
Mr John Freeman (Acting DPP) for Respondent

This is the judgment of the Court.

These appeals were heard together.

In the first case the respondents pleaded guilty and were convicted on charges of drinking in a public place. After they had been dealt with the learned Magistrate came to the conclusion that the conviction should not have been entered because it appeared that the Auki wharf where the alleged offence took place was not within "the town area". The attention of the Respondents having been drawn to the Magistrate’s conclusion, and to the right to appeal, notice of appeal was given under s.283 of the Criminal Code challenging the legality on the convictions. Understandably, on the information then before him, the learned Chief Justice came to the same conclusion as the Magistrate and to rectify the matter he purported to set aside the convictions by "a revision order" made under s.50(1) (c) of the Magistrates Courts Act Cap. 3.

In the second case the Appellant had been convicted in the Magistrate’s Court of receiving and had appealed against sentence. The learned Chief Justice, having perused the petition on appeal, and the file, dismissed the appeal summarily pursuant to s.287 (2) of the Criminal Procedure Code.

In both appeals in this Court it was argued that in the High Court the learned Chief Justice had erred in not hearing the appeals in public as required by s.10(9) of the Constitution.

Section 10(9) of the Constitution provides as follows:-

"Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public."

Section 2 of the Constitution provides that the Constitution "is the Supreme Law of Solomon Islands" and that if any other law is inconsistent with it "that other law shall, to the extent of the inconsistency, be void".

After the appeals were set down for hearing memoranda were filed indicating that there was no dispute that both s.50(1) of the Magistrates Court Act Cap.3 and s.287(2) of the Criminal Procedure Code must be read as subject to s.10(9) of the Constitution. The careful arguments of Counsel before us were to the same effect.

In the first case, an appeal having been filed, we have come to the conclusion that the proviso to s.50 of the Magistrates Courts Act precluded consideration of the matter under that section. On that ground we find that the revision order made in the High Court was invalid. For that reason the appeal must be allowed and pursuant to s. 21 (3) of the Court of Appeal Ordinance No. 10 of 1978 there will be an order remitting the case together with this judgment to the High Court for hearing and determination.

In considering Tanabose v. DPP it is clear that by virtue of s.2 the Constitution is the supreme law of Solomon Islands and all other laws must be read as subject to it.

In accordance with s. 10 (9) "except with the agreement of all parties thereto... all proceedings of every court...including the announcement of the decision of the Court shall be held in public." In the instant case there having been no agreement of all parties thereto, and no hearing in public, the dismissal of the appeal summarily under s.287 (2) was invalid. Having regard to the effect of the overriding provisions of s.10 (9) we agree with Mr Radclyffe’s submission that s.287 (2) must be regarded as void.

The appeal is accordingly allowed and pursuant to s.21 (3) of the Court of Appeal Act No. 10 of 1978 there will be an order remitting the case, together with this judgment, to the High Court for hearing and determination.