R v Kwatefena [1983] SBHC 3; [1983] SILR 106 (28 April 1983)

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(1983) SILR 106

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Criminal Case No.239 of 1983

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KWATEFENA

High Court of Solomon Islands
(Daly CJ)
Criminal Review Case No. 29 of 198f 1983

28^th April 1983

Procedure criminal case – magistrate intervening – witness called by court – cross examination of – omissions from record – as 197, 133, 199 Criminal Procedure Code.

Facts: The Accused was represented by a solicitor at his trial; the prosecution by a police inspector. The record of the trial omitted certain matters such as prosecution witnesses being sworn or the Accused being given a choice in compliance with section 197 Criminal Procedure Code. The magistrate asked a number of questions of the Accused before he was cross-examined. A witness adverse to the Accused was called by the court. There was no record of cross examination of the witness on behalf of the accused.

Held:

1. A magistrate d avoid giving the impression he is doing the work of one side. By the magistratetrate asking so many questions, this impression may have arisen.

2. The power of the court to call a witness should be used sparingly and rarely exercised, particularly when the witness is likely to give evidence in support of the prosecution case. The parties must be given an opportunity to cross-examine.

3. In view of these matters and the omissions from the record, the conviction must be considered unsafe and unsatisfactory and quashed.

Daly CJ:his case two accused appeared before a magistrate sitting in AlE">Auki charged with larceny in a dwelling house contrary to section 262(a) of the Penal Code. One accused pleaded guilty; the other, Geoffrey KWATEFENA (“the accused”) pleaded not guilty. At his trial on the 14^th March 1983 the accused was represented by a counsel from the Public Solicitor’s office, the prosecution by a police inspector. The accused was found guilty of the offence.

On the face of the record of the trial there are a number of omissions which, if they reflected what took place, would indicate that the correct procedure was not followed. No doubt some omissions are merely omissions to record what in fact took place. For example there is no indication that prosecution witnesses were sworn but I imagine they were. However it is not for this court on review to fill in the gaps of records by assumption and I have reached the conclusion that this record and the course taken in the trial are such that I cannot permit the conviction of the accused to stand.

The prosecution called two witnesses who, I assume, gave evidence on oath. They were cross examined. There is no record of any re-examination or an opportunity for it to take place being offered. The record then merely states, following the close of the prosecution case, “K sworn”. This refers somewhat elliptically to the accused. There is no record that section 197 of the Criminal Procedure Code (“CPC) was complied with or that the accused exercised a choice. Even if an accused is represented, a court should satisfy itself he is aware of his choices and has made one. Section 197 is mandatory.

The evidence of the accused in chivers approximately one page of the record. It is then followed by one page of questioning by the court and then one page of cross-examination by the prosecutor (with an intervention by the court). Again there is no indication of re-examination. Courts in Solomon Islands should always bear in mind that we work in an adversary system. This requires that the parties should be permitted to develop the case as they wish with the court intervening only when it is clear the case is taking a wrong turning or is becoming obscure . Sometimes when one side is professionally represented and the other is not, a court may indicate issues or points which it considered important to assist the party at a disadvantage. However it is wrong for the court to give the impression that it is doing the work of one side. In this case by the learned magistrate asking so many question before the prosecutor had cross-examined at all, that impression may well have arisen. If a court wishes to address a series of questions to a witness such questions should usually be couched in neutral terms and asked after the re-examination. Earlier questions to clear up ambiguities are of course acceptable. Both parties should be given an opportunity to ask questions on anything arising from this questioning by the court.

After the accused had finished his evidence, a witness was called by the court to give evidence of the use of certain words in language. Again there is no indication that the witness was sworn. The evidence given by the witness was adverse to the case of the accused and was relied upon in the judgment in that way. There is clear power in section 133 CPC for a court to call a witness. However, such power to call a witness after the close of the case for each party should be “used sparingly and rarely exercised” (see the cases summarized in Archbold Criminal Pleading and Practice 4^th Edition Para 592) particularly where the witness given the evidence in support of the prosecution case. The proviso to section 133 CPC gives the parties a right to cross-examine the witness. It is clearly of paramount importance that such a right be accorded to a party against whom adverse evidence is given. There is no indication that counsel for the accused was invited to cross examine or to apply for an adjournment to prepare such cross examination.

Finally there are no closing speeches recorded and no record that the advocate for the accused was invited to address the court in accordance with section 199 CPC.

The cumulative effect of these matters is that I consider that a conviction recorded as a result of this trial is unsafe and unsatisfactory. I must therefore in exercise of my powers under section 50 of the Magistrate’s Courts Act quash the conviction of Geoffrey Kwatefena of the offence contrary to section 262(a) of the Penal Code and order that it is expunged from his record.

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