HIGH COURT OF SOLOMON ISLANDS.

Criminal Case No. 144 of 2004.

REGINA

–v-

STEPHEN ROMANE

(KABUI, J).

Date of Hearing: 19th October 2005.
Date of Ruling: 20th October 2005.

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

RULING

Kabui, J.	The complainant has been examined in chief, cross-examined and re-examined. Counsel for the defence has objected to my asking the complainant questions which may result in the identification of the accused as being the man who raped her and indecently assaulted her as alleged in the information. Any answer given in response to the question may well be in the negative because it is not certain that the complainant will positively identify the accused in the dock as the man who raped and indecently assaulted her. The defence has argued that it is not right for the trial judge to ask questions of a witness in the way I have done.

The questioning that led to the objection.

The complainant had said in evidence that Stephen who raped and indecently assaulted her used to come to her house at Leggakiki to pick and drop her aunty. I began asking her how often Stephen would come to her house. She said he would come often and would drop her aunty at her house. I then asked because of that she knew Stephen and would recognize him and she said yes. I then asked whether that Stephen who used to come to her house can be seen in the body of the Court and the defence objected to that question being asked.

The role of a trial judge in asking questions.

Counsel argues that the Court should not be seen as descending into the arena and playing the role of counsel. There is no doubt that the trial judge may ask questions and can call witnesses. However, how far can the trial judge’s discretion be exercised in these respects is always the troubling question. 

The position in sophisticated jurisdictions.

In England, Jones v. National Coal Board, [1957] 2 WLR 760 is still the law. That is, the judge should avoid dropping the mantle of a judge and descending into the arena and assume the role of an advocate. I do not dispute that principle of conducting a criminal trial by a judge sitting alone or with a jury.

In the Australian jurisdictions, the position appears to be the same. In England and Australia, criminal trials are conducted by the trial judge before juries unlike here.

In Regina v. Thompson cited by both Counsel, one of the grounds of appeal was that the trial judge had asked 358 questions, 261 of which went beyond clarification and other matters. The NSW Court of Criminal Appeal in a judgment delivered on 16th May 2002 said that in clarifying the evidence, the judge might have unconsciously and inevitably assisted either the prosecution or the defence. The Court said that it was not the law that a judge must allow the evidence to be left in a state of incomprehensibility. It pointed out that society had now moved away from the “game” or “sporting” theory of justice. In other words, justice in terms of eliciting the truth may call for the judge to ask questions for the purpose of clarification of issues. It also acknowledged that questions aimed at clarifying issues might over-step that limit but that did not make the asking of them to be unfair. It further said that whether unfairness had occurred was a matter of balance, degree and judgment.

The position in Papua New Guinea in Melanesia.

In Papua New Guinea, like here, trial judges are tribunals of facts as well as of law. 

In Birch v. The State [1979] PNGLR 75 was a case where the trial judge had asked 186 questions to the prosecutor’s 123. One of the grounds of appeal was the undue participation by the trial judge. The appeal was dismissed. Having confirmed the general rule as stated by Lord Denning in Jones v. National Coal Board cited above, the Supreme Court stated that the circumstances prevailing in Papua New Guinea called for a flexible application of the rule. Prentice, C.J. acknowledged that in Papua New Guinea where the circumstance were different from more sophisticated societies, the judge might be forced to hold the balance between the interest of the State in enforcing the criminal law and the interest of the accused in defending himself. In doing so the judge could be justified in asking questions of prolonged and detailed nature than in the case in sophisticated societies. At pages 80-81 of his Honour’s judgment, His Honour said-

“Each of the judges of the National Court becomes aware of the difficulty from time to time of getting young Papua New Guinean girls to come out with their version of complaints-particularly those of a sexual nature. Each of the judges may be faced from time to time with having the assistance of somewhat inexperienced prosecutors and inexpert evidence-gatherers. In the circumstances of the country it may become necessary in my opinion, for a judge to hold the balance between the interest of the State in enforcing the law and that of the accused in defending himself against a charge, by intervention of a rather more detailed and prolonged nature than would be called for or proper in other more sophisticated settings. Another vital difference between the Papua New Guinea experience and that of other jurisdictions is that here there is at present no jury which can be misled in a variety of ways by judicial intervention.

My mind has wavered a little on this point, particularly on the number of questions asked. But I feel that his Honour the trial judge was in a better position in this case to asses in his discretion, what procedurally was called for than Iam now on reading the obviously abbreviated notes of evidence. I do not find myself in the result, convinced that a miscarriage of justice in the sense envisaged by this ground of appeal, has been shown.” 

With this, Raine, DCJ and Kearney, J. agreed.

Application in Solomon Islands of the position in the position in Papua New Guinea.

I adopt the reasoning of that Court and apply it in this case. It goes without saying that it is relevant to the circumstances in Solomon Islands where the legal profession only began in 1987. Holding the balance between the interest of the State in enforcing the law and the interest of the accused in defending himself or herself is fundamental to society in Solomon Islands. Playing the “game” or “sport” theory of justice, to use the words of the New South Wales Court of Criminal Appeal, is dangerous in Solomon Islands in the interest of justice because of the inherent weakness in the standard of advocacy in terms of experience of young advocates. It makes no sense and is a mockery of justice for the trial judge to sit like an idol and avoids asking relevant questions to clear areas of doubt in his or her mind in the interest of the State where counsel out of inexperience may have committed omission of relevant issues or matters or put them ambiguously to the Court.

Conclusion.

In this case, the complainant had given evidence of familiarity with the accused before any dock identification. There was no identification parade perhaps because the accused was not a complete stranger to the complainant. My questioning was aimed at confirming that the same Stephen who raped and indecently assaulted her and the one she knew previously was in the body of the court or not. The answer could well be in the negative in which case that answer helps the defence. If the answer is in the affirmative, it helps the case for the prosecution but dock identification is not always safe to accept because it is all too easy to say the man in the dock is the culprit. So it is not true that by my asking questions tending to identify the accused in the dock, unfairness has been created against the accused.

I am therefore entitled to ask the questions that may lead to the identification of the accused in the dock. I rule accordingly.

F.O. Kabui
Puisne Judge