Baega v Regina [2001] SBHC 105; HC-CRAC 028 of 2001 (3 April 2001)

HIGH COURT OF SOLOMON ISLANDS

CRIMINAL APPEAL CASE NUMBER 28 OF 2001

PATRICK BAEGA

-V-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 30TH MARCH 2001, 2ND APRIL 2001
JUDGMENT: 3RD APRIL 2001

Ms M Samuels for the Appellant
J Faga for the DPP

PALMER J.: The Appellant was convicted in the Magistrates’ Court on a charge of possession of firearm without a firearm licence contrary to section 5(2)(a) of the Firearms and Ammunition Act (Cap. 80). He was arrested by Police on 28th February 2001, during a Police vehicle traffic check. A home made rifle had been found in the vehicle. He was charged and brought before the Magistrates’ Court on the same day. He pleaded guilty to the charge, and was sentenced to 6 months in prison. Prisoner now appeals against conviction and sentence.

Section 284 of the Criminal Procedure Code (Cap. 7) sets a limit to the type of appeals that should be brought before this Court to avoid petty and unnecessary cases. Counsels should take cognisance of this provision and avoid bringing appeals, which have little or no hope of success to this Court. That would be tantamount to an abuse of the Court’s process. Counsel’s must be reminded that they have a duty to the Court and to their clients to ensure that the law and its effects are fully explained to their clients so that they understand what their rights are under the law. Not every ground or grievance can activate this Court’s jurisdiction; only that, prescribed and provided for by the law. Section 284(1) provides:

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted of such plea by a Magistrate’s Court, except as to the extent or legality of the sentence.”

Right from the outset therefore, appeal grounds 1 to 4 should have been struck out as contrary to section 284(1), leaving only ground (5) as the valid ground for consideration by this Court. Grounds 1 to 4 read:

“1. The Appellant, having appeared in person, was not advised of his right to seek legal representation before the hearing of his case.

2. The Appellant, having been arrested, charged, prosecuted and sentenced on the same date, was not informed in the language that he understands the nature of the offence that he was charged for.
   
3. The Appellant, having arrested, charged prosecuted and sentenced on the same date, was not given adequate time and facilities for the preparation of his defence.
   
4. The Appellant, was entitled to enter a no guilty plea but was prevented from so doing due to the ambiguity of questions put to him by the learned Magistrate.”
   

Grounds 1 to 4 seek to overturn the guilty plea and conviction entered by the Magistrate’s Court below. However, unless any jurisdictional error of law can be shown to this Court, such that it can be said, that in reality no guilty plea had been entered, those grounds should be set aside. I have considered those grounds, submissions of learned Counsel for the Appellant, and transcripts of evidence of the court below, but none show any jurisdictional error of law having been committed that would oblige this Court to entertain those grounds. They are dismissed.

The only valid ground for consideration before this Court therefore is the question of whether the sentence was excessive in the circumstances. Mrs Samuels has sought to introduce new matter before this Court, which she argues may have had some bearing on the extent of the sentence imposed. This consists of an affidavit filed 2nd April 2001, by Joseph Baetolingia, Director of the Royal Solomon Islands Police Field Force, and a statement from the Bar Table. At paragraph 5 of his affidavit, Joseph Baetolingia deposed that there had been some sort of understanding with the Supreme Commander of MEF that the persons named in a list (“Annexure JB1” annexed to the affidavit of Joseph Baetolingia) be the last persons to surrender arms. Unfortunately, that is the most that can be gleaned from that affidavit; an understanding, nothing more. No dates are given as to when arms held by such persons were to be surrendered and no confirmation from the International Peace Monitoring Team (“IPMT”) that this was a variation or an arrangement brought to their attention as well to be monitored. There is nothing to show that other responsible authorities, the Commissioner of Police, the Director of Public Prosecutions, and the Attorney-General were made aware of this. Also what effect would such understanding have on the former Commanders of IFM or GRA. To the contrary, and I take judicial notice of this fact, the Townsville Peace Agreement had set a certain date agreed to by both factions, for the surrender of arms. No exceptions as far as I am aware of were made. With respect, I fail to see how this understanding would excuse this Appellant or even assist him in this case. But also I find this understanding to be misconceived, and contrary to the terms of the Townsville Peace Agreement. Issues of law and order, including the safety of these former Commanders and their families, and everyone in Honiara Town and Solomon Islands, is a matter for the Police and Police alone to discharge. The events of the past two years have more than highlighted the crucial role the Police Force in our Country plays, the importance of providing all the necessary support that the Police Force need, in the due discharge of their duties, and the importance in ensuring that Police work in enforcing and maintaining law and order in the country, is not politicized or interfered with. We have more than capable officers in the Police Force under the more than capable leadership of the Commissioner of Police. What they need is our support and cooperation. We must not forget, and they too must not forget, that they are disciplined officers, officers under oath, sworn to uphold the rule of law in this Country fairly, objectively, without fear, favour or ill will to any one. They have been specially trained to carry out their duties. Remove the Police Force, and what do you have? As this country comes out of its wilderness experience and seeks to actively bring law and order back into focus, sanity to the normal and daily existence of people in Honiara Town and Guadalcanal Province, the Police Force must be re-vamped, re-dedicated, re-disciplined and new and fresh commitments made. The concerns of safety of the citizens of this country, whoever they may be, must be addressed by the Police, for they have the clear mandate under the laws of this Country to provide it. And if they are not able to provide it, then assistance must be given.

As to the question of workability of the weapon, that is a moot point. It wasn’t the case where this information was not available to the prisoner at time of appearance, before the court below. There also has been no confirmation from Police that the weapon was unworkable. Counsel ought to have known, that if new matters by way of evidence, sought to be relied on, are to be introduced before this Court, this should have been done by way of an affidavit, with sufficient time given to State Counsel, to make such response as is relevant in the circumstances. Making such statements from the Bar Table is not sufficient.

But if the weapon is not workable, it should have been disposed of, instead of being catered around in a vehicle. Respectfully, I do not find this adds anything further to the sentence already imposed. Past sentences passed by the courts show that this sentence is not excessive by any means; more it would be on the lenient side.

Having said that, I sympathise to some extent with the Prisoner in this case, in that he may have felt aggrieved by the fact that it would appear he had been singled out in respect to this offence. It is not a hidden fact, that blatant and more serious breaches of this offence had been committed, and that there would appear to be still a lot of illegal weapons still at large. But despite my sympathies, the courts in the country are obliged to deal with whatever cases are brought before it, according to law. The courts do not activate their jurisdiction on their own account, lest they be guilty of being not only judge but also prosecutor of the case. They deal with such cases as are brought before them by the Police. It is for the Police to arrest, charge and prosecute such persons as are found to be in breach of these kinds of offences. If they bring them in the dozens, the courts will be obliged to deal with them in the dozens. I acknowledge the Police do not have an easy task, complicated by so many factors that we have come through, but if every body co-operates the work of restoration of law and order can be done.

I am satisfied the learned Magistrate took into account all relevant material and that there is nothing before me to satisfy me that the sentence should be interfered with.

I note from the summary of facts before the Magistrates’ Court that the Prisoner appeared to be driving a stolen vehicle as well. State Counsel may wish to consider, whether an offence had been committed in respect of those facts and whether appropriate charges (if not yet brought) should be brought. Ground (5) of the Appeal also dismissed.

One final matter, the record of proceedings, do not show that any conviction was entered. I am not satisfied however, this was deliberate or that in the circumstances, would warrant the intervention of this Court. It was a mere oversight, which can simply be corrected by amending the appropriate records. I am satisfied the sentence was appropriate in the circumstances and consistent with a conviction having been entered after a guilty plea.

ORDERS OF THE COURT:

1. Direct that the records of proceedings be endorsed with a conviction.
2. Dismiss appeal.
3. Confirm conviction and sentence of 6 months imprisonment.
   

THE COURT.