R v Tuto [1980] SBHC 8; [1980-1981] SILR 19 (16 June 1980)

[1980-1981] SILR 19

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Review Case No. 704 of 1980

R.

-v-

TUTO

High Court of Solomon Islands
(Daly C J)
Criminal Review Case No. 704/80

16th June 1980

Criminal Law - Review Judgment - drunk and disorderly - consent to hear case in absence - previous convictions - general principles of sentencing an accused person in his absence section 86 of the Criminal Procedure Code

Facts:

The accused was charged in the Magistrates’ Court for being drunk and disorderly contrary to section 167(d) of the Penal Code. The accused pleaded not guilty to the charge when the case was first heard on January 25 1980. The second hearing was on February 1 1980 and there was a further adjournment for May 5 1980. However on May 5 1980 the accused did not turn up and so an application was made under s. 187 of the Criminal Procedure Code as read with section 86 of the said code for the hearing to proceed in the absence of the accused. A written consent from the accused that the case could be heard in his absence was produced. The Magistrate after proceeding with the hearing, found the accused guilty of the charge. The prosecutor then read out the accused’s antecedents and produced the accused’s previous convictions. The Magistrate imposed a severe fine of $40.00 or imprisonment for two months in default as a deterrent to such behaviour in future.

Held:

1. That despite the accused’s absence strict evidential rules must be followed, that is evidence must be given on oath and that to some extent there is a greater burden on the Magistrate proceeding in the absence of an accused to satisfy himself that all is in order.

2. That production of previous convictions must be approached with great caution if the accused is not in court to accept them.

3. That the maximum fine provided for under section 167 of the Penal Code is $20.00.

4. That where the hearing takes place in the absence of the accused person, the general principle is that he should not be sentenced to imprisonment even as an alternative to a fine without having an opportunity to appear in person before the court.

5. That where the Magistrate imposes a fine on an accused person whose personal attendance has been dispensed with and the accused has not paid within the time prescribed for such payment, the Magistrate should then issue a summons calling upon the accused to show cause why he should not be committed to prison and if he fails to answer, the Magistrate may then issue a warrant and commit him to prison.

6. That the accused’s conviction and sentence are therefore quashed.

Reported by: James Apauiai

Daly C J: On Review:

This accused Cecil Tuto appeared before the Central Magistrates’ Court sitting at Tulagi on the 25th January 1980 when he pleaded Not Guilty to one offence of being drunk and disorderly contrary to section 167(d) of the Penal Code the date of the alleged offence being 23rd December 1979. On that occasion the prosecutor applied for an adjournment and this was granted. As far as appears from the record the accused was not bailed over this adjournment.

On the 1st February 1980 the accused again appeared before the court and evidence of two prosecution witnesses was taken. The evidence amounted, if believed, to as clear a case of drunk and disorderly as could be imagined. However the case was further adjourned, again, as far as appears, without the accused being bailed.

The case was mentioned again on the 5th May 1980, the lapse of time between the two hearing dates being explained by a note in the record, all the details of which I need not consider but one of which was the departure of the accused for his home in the Reef Islands without informing the police. Thus the accused was not present on the 5th May 1980. A note was made in the court record that ‘The Court proceeds under section 187 of the CPC as read with section 86 of the CPC’. A consent of the accused to the hearing of the case in his absence dated 12th April 1980 was exhibited to the record. Although the appropriate section was section 191 of the CPC (which deals with the non-appearance of parties after an adjournment) the Magistrate was entitled, having seen a consent thereto, to proceed in the absence of the accused.

However what then happened was that the prosecutor produced and read statements of evidence which were “accepted as evidence by court”. The prosecution was closed. The Court then found the accused Guilty of the offence charged.

During the course of giving the antecedents of the accused the prosecutor on oath produced and read a record of the previous convictions of the accused. The court’s judgment was as follows: -

“The court viewed all except one previous conviction as identical. Since the accused is not present a severe fine will be imposed as a deterrent to such behaviour in future.”

The accused was sentenced to be fined $40.00 “to be paid by June 30th 1980 or in default 2 months’ imprisonment”.

A number of matters arise out of the final hearing and I deal with them in some detail so that magistrates can be aware of the pitfalls which can occur in hearings held in the absence of the accused.

The first is that, despite the absence of the accused, the same rules of evidence apply in all cases. Thus, unless it can be brought within one of the statutory exceptions, evidence must be given on oath. Indeed to some extent there is a greater burden on the magistrate proceeding in the absence of an accused to satisfy himself that all is in order. It is always for the prosecution to prove their case even if an accused declines to be present.

The second is that production of previous convictions must be approached with great caution, if the accused is not in court to accept them. Section 86 (4) provides: -

“(4) If, in any case in which under this section the attendance of an accused person is dispensed with, previous convictions are alleged against such person and are not admitted in writing or through such person’s advocate, the Magistrate may adjourn the proceedings and direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner herein after provided.”

Although this subsection only relates in terms to a case where the attendance of the accused is dispensed with under section 86, the safe course is to apply it to all cases where the accused is not present. Thus it will be noted that there must be a formal admission of previous convictions before they can be taken into consideration. In this case no such admission was before the court. Even were one to take the view that section 86 (4) did not apply in this case, then it would be necessary to have strict proof of the previous conviction in accordance with either subsection (1) or subsection (2) of section 125.

The fourth is the question of imposing imprisonment in default. Again the terms of section 86 are clear and set out specific procedure for enforcement of a fine imposed on an accused whose personal attendance has been dispensed with under section 86. Subsection 3 provides as follows: -

“(3) If a Magistrate imposes a fine on an accused person whose personal attendance has been dispensed with under this section, and such fine is not paid within the time prescribed for such payment, the Magistrate may forthwith issue a summons calling upon such accused person to show cause why he should not be committed to prison for such term as the Magistrate may then prescribe. If such accused person does not attend upon the return of such summons the Magistrate may forthwith issue a warrant and commit such person to prison for such term as the Magistrate may then fix.

Here again there is no express extension to hearings held in the absence of the accused under other sections but the general principle that a man should not be imprisoned without an opportunity to appear in person before a court requires the extension of the procedure set out in section 86 (3). Thus in imposing the fine the magistrate in this case should merely have stated the date by which the fine should paid.

In all the circumstances it is clear that the proceedings held in the absence of the accused contained irregularities which must cause me to set aside the conviction of the accused. I have considered whether this is a proper case for remission to the Magistrate’s Court for rehearing but in view of the nature of the charge, the length of time since the offence was alleged to be committed and the number of hearings in relation to it which have already taken place, I have decided not to so remit the case.

The finding of guilt and sentencing in this case are therefore quashed. The monies paid by way of fine, if any, should be returned to the accused and the entry on his record relating to this matter expunged.