Regina v Volo [2000] SBHC 65; HCSI-CRC 40 of 2000 (14 February 2000)

CRC No 40, 2000, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Review Case No 40 of 2000

REGINA

-v-

GORDON VOLO

High Court of Solomon Islands
(PALMER J.)
Criminal Review Case Number 40 of 2000

Date of Review: 14 February 2000

PALMER J.: This case has been forwarded to this Court for review by Magistrate Ferah on grounds of erroneous application of section 192 of the Criminal Procedure Code (Cap. 72). She had dismissed case for non-appearance of the Police Prosecutor on 26th January 2000. Gordon Volo (“Accused”) had been charged for the offence of common assault contrary to section 244 of the Penal Code; that on the 6th of January 2000 he had unlawfully assaulted Joe Pua’ara. Accused had entered a guilty plea on 24th January 2000 and without proceeding to conviction and sentence straight-away, learned Magistrate decided to adjourn case to 26th January for decision. Perhaps her Worship wanted to think things over, after listening to the facts of the case and mitigation. On 26th January the police prosecutor did not appear. Her Worship then decided to apply section 192 of the Criminal Procedure Code and dismissed the charge against the Accused. She later realised this was erroneous in law and has sent the file for review to this Court. The police prosecutor had also decided to file appeal against her decision. That is now not necessary as the case is now under review.

Section 192(1) reads:

“If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit.”

The rationale behind section 192(1) is that when the police prosecutor fails to turn up after case had been adjourned, without explanation, the court may conclude that no evidence or further evidence is being proffered against an accused. The court is then in position to decide whether the charges against the accused can be dismissed or not. Where no evidence had been proffered to date, that is a simple exercise. Where some evidence had been heard, that would require a bit more thought. Where however a guilty plea had been entered, it would not be open to have the charge against an accused dismissed for mere non-appearance by the police prosecutor. A guilty plea signifies an acceptance of the charge as read to the court, as true and correct and entitles the court to proceed to hear the facts, antecedents and mitigation. The Court can then proceed to consider whether conviction should be entered and sentence. If police prosecutor fails to turn up for decision, a presiding magistrate has two options. She can either adjourn case further to allow the police prosecutor to turn up in court and explain why he did not turn up at the last hearing, or simply proceed on with the case before her to pass decision. She did neither. It is always discourteous of any police prosecutor not to turn up in court without explanation.

I am satisfied an error of law had been committed by the learned Magistrate in dismissing the charge in this case under section 192(1) and ought to be set aside. I do so and direct that this case be remitted back to her Worship for decision.

ORDERS OF THE COURT:

1. SET ASIDE ORDER OF 26TH JANUARY 2000.

2. REMIT CASE BACK TO MAGISTRATES’ COURT FOR DECISION.

THE COURT