Regina v Romane [2005] SBHC 14; HCSI-CRC 144 of 2004 (12 October 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 144 of 2004

REGINA

-v-

STEPHEN ROMANE

Date of Hearing: 11^th October 2005
Date of Ruling: 12^th October 2005

H. Kausimae for the Crown
L. Kershaw for the Accused

RULING

Kabui, J.: The accused is Stephen Romane. He is on bail awaiting his trial in the High Court for rape and indecent assault. In the first place, he was charged with defilement of a girl under the age of thirteen years in the Magistrate Court which committed him to stand his trial for that offence in the High Court. Accordingly, the DPP filed the information to that effect on 21^st April 2004 and again on 17^th May 2005 against the accused for defilement under section 142(1) of the Penal Code, (the Code). The next day, 18^th May 2005, the DPP changed his mind and filed the overlaying information charging the accused with rape and indecent assault. The earlier information filed the previous day for defilement seemed to have been replaced with the information alleging rape and indecent assault by implication. Counsel for the accused disputes the correctness or the validity of the second information alleging rape and indecent assault. This is the issue that I have asked to determine.

The argument for the defence.

The case for the defence is that only defilement was the charge laid against the accused in the Magistrate Court for the purpose of the preliminary proceedings to find out whether there was any evidence against the accused to enable the Magistrate Court to decide whether the accused should be committed to stand his trial in the High Court for defilement. In this case that procedure has been completed in the Magistrate Court but only in respect of the offence of defilement and not rape. It is therefore wrong procedurally to do what the DPP has done in this case.

The argument for the Crown.

The argument by the Crown is that nothing was procedurally wrong with what the DPP has done in this case.

The law on this point.

Section 233 of the Criminal Procedure Code Act (Cap. 7), (the CPC) states-

"(1) If, after the receipt of the authenticated copy of the statements and depositions as aforesaid, the Director of Public Prosecutions is of the opinion that the case is one which should be tried upon information before the High Court, an information shall be drawn up in accordance with the provisions of this Code, and when signed by the Director of Public Prosecutions shall be filed in the registry of the High Court.

(2) In any such information the Director of Public Prosecutions may charge the accused person with any offence which, in his opinion, is disclosed by the statements and depositions either in addition to, or in substitution for, the offence upon which the accused person has been committed for trial".

The answer to the issue clearly lies in subsection 2 above. The DPP is entitled to do what he has done in this case.

Conclusion.

This point is raised by the defence as a preliminary issue. It is not calling for the quashing of the information filed for rape and indecent assault nor is it calling for the amendment of that information. It is a kind of an application to determine an issue in which both parties have an interest. It does not call for any order to be made. If an issue does not have any legal basis, it should not be raised because to do so can be a waste of time and resources. At the same time, it can be said also that the accused is entitled to raise any issue which may create an advantage for him or her in a criminal trial. Whichever is the case does not matter now because subsection 2 of section 233 of the CPC cited above does provide the complete answer.

I therefore rule that the DPP is entitled to file the information for rape and indecent assault which has now overlaid the initial information for defilement. I rule accordingly.

F.O. Kabui
Puisne Judge