Regina v Kamisi [1994] SBHC 49; HCSI-CRC 74 of 1993 (24 February 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.74 of 1993

CASE ON REVIEW

REGINA

-v-

ROLLAND KIMATA KIMISI

High Court of Solomon Islands
(Palmer J)
Criminal case No.74 of 1993

Hearing by Gizo Magistrates’ Court: 16th June 1993
Date of Review: 24th February 1994

PALMER J: The defendant was charged under section 240 (b) of the Penal Code for assaulting a Police Officer (P.C. Ghoni) while acting in the due execution of his duty. The matter was heard in the Magistrates’ Court, at Gizo, on the 16th of June 1993. On that date an application for termination of the proceedings under section 38 of the Magistrates’ Court Act was made by the Prosecuting Officer, a police officer. The Defendant was present in Court represented by a Solicitor from the Public Solicitor's Office (Gizo). The victim of the assault was also present.

The learned Magistrate accepted the application under section 38 and terminated the proceedings, thinking that the charge was for common assault under section 237 of the Penal Code. It was only after the proceedings had been heard that he discovered that the offence was in respect of section 240 (b) of the Penal Code, which he described as a serous charge, and would not have accepted the application had he known the truth.

Section 240 (b) of the Penal Code is a slightly more serious offence if one considers the maximum sentence that can be imposed, of two years. However, it is still described as a misdemeanour and therefore could easily be brought within the provisions of section 38 of the Magistrates’ Court. The view of the learned Magistrate expressed in his letter of referral is a matter within the discretion of each Magistrate whether to accept a termination of the proceedings on the basis that the victim and the defendant had been reconciled to each other. Normally, I accept that such offence committed under section 240 (b) of the Penal Code should not be accepted for termination under section 38 of the Magistrates’ Court Act. The fact however, that a mistake has been committed, caused by the Prosecutor himself, who should know better as to when to apply for a termination under section 38 of the Magistrates’ Court Act, does not necessarily mean that this court should automatically review that case. I am satisfied this, court need not intervene to correct the mistake. No serious miscarriage of justice has occurred, and I am satisfied the mistake can best be left alone, but with a lesson learned for the future.

Also, I note that several attempts have been made to list this case for review but there have been difficulties in serving the Defendant. I do not consider it would serve any useful purpose in further adjourning this case. The orders of the learned Magistrate accordingly are sustained.

(A.R. Palmer)
JUDGE