IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.200 of 1994

REVIEW CASE

R

-v-

PAUL TAKOPI

High Court of Solomon Islands
(Palmer J.)
Criminal Case No.200/94/EMC

Date of Review: 18th November 1994

PALMER J: The accused, Paul Takopi had been arraigned before the Eastern Magistrate's Court on the 30th of August, 1994, on a charge of common assault, contrary to section 237 of the Penal Code. The particulars of the offence read: “That Paul Takopi unlawfully assaulted Henry Teti on the 23rd April 1994.”

The accused pleaded not guilty and the facts were read out as follows: “On 23/4/94 at Neo, victim HT had his tea at his house. Whilst having tea the accused appeared and grabbed the victim’s neck. Told victim if I want to kill you - will kill you.’ The victim did not say anything. Just reported accused assaulted him without any reasons.”

The record of proceedings then showed the comments of the accused in which he stated that he did not agree with the facts and gave his version of what actually took place.

The records then showed the Court dismissing the charge on the basis that the facts did not properly constitute an offence.

It is not clear what is meant by this, whether the facts as read by the prosecutor did not constitute an offence or whether the learned Magistrate formed the above opinion only after hearing the accused’s version of events.

What is important to note is that the opinion of a magistrate as to whether the facts as read by the prosecutor constitute an offence or not should be formed when the facts have been read out by the prosecutor. The crown’s case against the accused is as summarised in the facts read out by the prosecutor. If, after hearing the facts a magistrate is not satisfied that an offence has been made out as contained in the charge, then he should raise the matter with the prosecutor straight-away.

The reason why an accused is asked if he agrees with the facts is two-fold. First, it is to enable the court to ascertain if the accused does in fact understand the charge made against him. Secondly, it is to assist the court in the case where the accused is unrepresented by a lawyer, to ascertain whether there may be a possible defence, and thereby to change the plea from a guilty plea to a not guilty plea. Most of the accused who come before the courts are unrepresented and un-schooled in the law, and therefore may not be aware of their legal rights, and whether there exist a defence to the charge made against them. By giving them an opportunity to indicate to the court whether they agree with the facts or not, the court may be assisted by what they may say in response. For instance, if the accused says that he does not agree with the facts, then he should specifically be asked to point out what part of the facts were not agreed to.

In this particular case there is a denial by the accused that he assaulted the victim. His version was quite different to the facts as read by the prosecutor. His version was that he acted as a peace-maker between the victim and other people around that time whom the victim was wanting to fight. He stated that he ‘only tried to help and advise the victim’. Once it is clear that there is conflict in what the facts say and what the accused says, and that there is a possible defence in what the accused says, then the magistrate should change the plea to a not guilty plea and adjourn the case for a trial to be held. At other times, there may not be a defence but simply a difference in the facts which would be material for sentencing purposes; that is, if the version given by the accused is to be accepted by the court then it would be material in mitigation in favour of the accused. In such instances, the plea of guilty should be maintained, but a trial be held on the facts or matters in dispute. The sentence can then be passed after the issues of fact that are in dispute have been ruled upon by the court.

In this case, the facts as read by the prosecutor clearly amounted to an offence. The comments of the accused however, in response to the question whether he agreed with the facts showed a possible defence to the charge. A plea of not guilty therefore should have been entered and the case adjourned for trial. The orders of the learned magistrate accordingly are set a side; the guilty plea of the accused is changed to a not guilty plea, and the matter to be listed for trial by the Eastern Magistrate Court.

ALBERT R. PALMER
JUDGE