Olomani v Reginam [1992] SBHC 73; HCSI-CRC 31 of 1992 (4 December 1992)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 31 of 1992

KAMADA OLOMANI

V

REGINAM

High Court of Solomon Islands
(Palmer J.)

Criminal Case No. 31 of 1992

Hearing: 26 October 1992 at Auki
Judgment: 04 December 1992

J. Remobatu for Appellant
R B Talasasa for the Respondent

PALMER J: The Appellant, Kamada Olomani, appeals against conviction on charges of common assault, going armed in public and criminal trespass.

He pleaded not guilty to the charges, a trial was held and he was convicted on all 3 charges, and duly sentenced. The defendant was sentenced as follows:

1) Common assault contrary to section 237 Penal Code - FF $100.00

2) Going armed in public contrary to section 78 Penal Code - 6 months - 3 suspended for 1 year

3) Criminal trespass c/s 182 Penal Code - FF $100.00. In Default for fines at 4 months imprisonment.

The grounds of appeal are:

(i)The Magistrate erred in excluding witnesses for your petitioner’s without first ruling and/or warning your petitioner to have witnesses out of court out of the hearing of the other Prosecution witnesses.

(ii) The Magistrate erred in excluding witnesses for your petitioner even if your petitioner’s witnesses were within hearing distance from the court proceedings.

As a result of the Magistrate’s ruling that your petitioner’s witnesses be excluded from giving evidence for your petitioner, evidence to show doubt on the evidences produced by prosecution witnesses were not available for the court to assess. There was a third ground of appeal but this was not pursued at the hearing.

The question that should be asked when considering ground (1) of the appeal is whether there is a duty in law on the presiding Magistrate to warn the witnesses of the defendant to stay out of hearing of the court proceedings, when the prosecution witnesses were giving evidence.

There doesn’t seem to be any rule of law that imposes such a duty on a Magistrate. Sometimes a request is made in court and the presiding magistrate then would make an announcement in court asking all witnesses to remain out of hearing.

As a matter of practice, witnesses usually stay out of hearing. But there may be some who are not aware of such a practice and do not comply, through ignorance.

I would agree with learned counsel for the Director of Public Prosecutions that this would be an appropriate time to set some guidelines.

The English courts position on the question of whether witnesses should remain out of court out of earshot whilst other witnesses are giving their testimony is fairly clear. It is a recognised practice that witnesses remain out of court until called so that each witness may be examined out of hearing of the other witnesses. (Archbold Criminal Pleading, Evidence & Practice, 43rd Edition, paragraph 4-251). This practice is based on natural justice; that an independent witness giving independent evidence is more likely to be speaking the truth than one who has heard the testimony of others and thereby having the opportunity to colour his evidence. In Moore·-v- Registrar of Lambeto County Court (1969) I.W.L.R. 141 AT PAGE 142., Edmund-Davies L.J. had this to say:

“No rule of law requires that in a trial the witnesses to be called by one side must all remain out of court until their turn to give testimony arises. This is purely a matter within the discretion of the court”. (underlinings mine).

Edmund-Davis L.J. then states his personal preference at the same page paragraph ‘F’ as governing the approach in criminal cases, of having witnesses remain out of hearing. But he also stated and I quote:

“ .... I know other judges who take exactly the opposite view. They prefer the witnesses to remain in court so that they may observe their reaction when they hear the evidence of other witnesses.”

The courts in Solomon Islands in my view should follow Edmund-Davies’s L.J. preference. As a matter of practice, witnesses should remain out of hearing of the court proceedings whilst other witnesses are giving evidence. In a trial where the defendant is unrepresented then the presiding Magistrate as a matter of practice should enquire of the defendant if he/she has any witnesses to call and if so to require those witnesses to remain out of hearing of the court proceedings.

In the provincial magistrate’s courts, to require a witness to remain outside may not be sufficient as the court buildings often are open buildings and a person outside quite often can still hear everything that is been said by a witness in the court building.

The failure of a court to give such a warning should not be a bar to allowing a witness who may have been present in court to give evidence. I will deal with this in more detail when I consider the second ground of appeal.

The omission in this particular case therefore is of little significance. If there is any relevance, it would have to be in conjunction with the second ground of appeal.

I now turn to consider whether the presiding magistrate has a right, if not a discretion to exclude witnesses who were present in court (within hearing distance) when the other witnesses were giving evidence.

Again it would be appropriate to consider the English Courts approach on this.

In Moores case, Edmund- Davies L.J. said at the same page 142, paragraph E:

“Indeed, if the court rules that witnesses should be out of court and a witness nevertheless remains inside, while the trial judge may well express his grave displeasure over such disobedience, he has no right to refuse to hear the evidence of such a witness.” (underlinings mine).

Also in Archbold Criminal Pleading Evidence & Practice at top of page 455, the learned author had this to say:

“Certainly where the judge has made no ruling and a party wishes to call a witness who has remained in court the’ judge has no discretion to refuse to allow such a witness to be called.” (underlinings mine).

The case of R v Briggs (1930) 22 Cr.App.R.68 and R Thormpson [1967] Crim.L.R.62 were cited in support by the learned author in Archbold.

The English Courts position is unequivocal. There is no right neither a discretion to exclude such a witness. The position in Solomon Islands in my view should not be any different. I would agree with Edmund-Davies’s L.J. statement at page 142 of Moores case, paragraph ‘G’, where he says:

“It cannot rightly be said that, if witnesses are allowed to remain in court, justice cannot be done ......”

This statement recognises the fact that in the courts pursuit of justice it also pursues the truth, and the intrinsic nature of truth is that it cannot be changed, covered up or removed. It remains forever. The fact that witnesses remain in court or out of court cannot alter the truth.

The requirement that witnesses should remain out of court is a rule of convenience that courts have evolved over centuries of experience wherein it has been ascertained that courts are more likely to be assisted in their weighing functions of the truths of a witnesses testimony if such testimonies were given independently without prior knowledge of what the other witnesses said in court.

I do not see any satisfactory reason why the position in Solomon Islands should be treated differently.

If an objection is raised, and it is found to be true, the court should make a note of it, but should still call the witness to give evidence. There is no discretion involved here. (i.e. discretion to exclude the witness.)

The weighing operation comes after, when the court would then decide on what weight to attach to the evidence of such a witness. The court is obliged to hear the evidence of such a witness and to exercise its weighing and assessing powers accordingly. By excluding such witnesses, it deprives itself of the fundamental duty to hear and consider all relevant and material evidence before making a final decision.

I am satisfied the appellant was denied the right to call such witnesses (totaling 3) to testify on his behalf and accordingly he was not accorded a fair hearing.

The proper order in such a case is to have the conviction quashed and order a re-trial. The appellant however has served the prison sentence imposed on him. A re-trial therefore will more likely be an academic exercise with unnecessary expenses involved than in the interests of justice.

Accordingly, the orders shall be as follows:

(i) convictions quashed and file to be marked “Not to be proceeded with”.

(ii) Any fines paid to be refunded.

(A. R .PALMER)
JUDGE