Regina v Toghovotu [2005] SBHC 86; HCSI-CRC 352 of 2004 (27 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 352 of 2004

REGINA

-v-

ANDREW TOGHOVOTU, JOHN GURUSU,
ADRIAN VOLIA, JOSEPH KULIA

Date of Hearing: 20^th July, 25^th July 2005
Date of Ruling: 27^th July 2005

Mr M McColm for the Prosecution
Ms K Anderson for Gurusu
Mr A Cook for Toghovotu
Ms E Garo for Volia
Mr S Lawrence for Kulia

(Chetwynd Com): In November 2004 His Lordship the Chief Justice held the “usual” call over or directions hearing in respect of this case. He set aside the period between 18^th July and 5^th August this year for the trial. He also listed the case for a further directions and mention hearing on 17^th June 2005. In the meantime, because of the shortage of Judges, he asked me to sit and try the case as a Commissioner of the High Court.

On the 17^th June I presided over the directions hearing fixed previously by His Lordship. At that hearing I specifically raised the question of my sitting as a commissioner. I said that if Counsel had any questions about or "problems" with my sitting to hear the case then they should be raised as soon as possible. On 15^th July a further directions hearing took place. Again I raised the question of my sitting as a commissioner. None of Counsel present at that hearing said that they had any difficulty with me sitting as a commissioner to hear the case. None objected to my hearing the case and no one asked for specific details of my appointment as commissioner. No one said that they had any concerns about my status.

The trial commenced on 20^th July. An amended Information was read, pleas taken, the Prosecution opened their case and evidence was called. Due to the sitting of the Court of Appeal during that week and the need for some Counsel in this case to appear before the Court of Appeal the matter was adjourned to 25^th July. On 25^th July several preliminary issues were raised about witnesses. They have no bearing on what happened next. Mr McColm then raised the possibility of a "question as to the status" of my commission. It was something he said that Mr Cook had put him on notice about. Mr McColm, very sensibly, said that although he did not know whether or not there was an issue he thought the possibility of an issue should be raised.

Mr Cook indicated that, "there may not be a problem at all" but he added that he would like to see the terms of the appointment which gave me jurisdiction to try the case. He went on to say that whilst he did not doubt that it existed he wanted it to be something he was confident about given this was a trial involving charges of murder. I said that I was not prepared to continue hearing the case and adjourned so that the matter could be placed before His Lordship the Chief Justice. It seems as if that decision was not clearly understood because Counsel asked if I would return to Court and hear further submissions. Counsel wanted me to continue sitting until the question had been dealt with to their satisfaction or alternatively suggested that I should adjourn for a couple of days so they could make the necessary searches to find the commission. I declined to accept those suggestions and said that the matter should be referred back to the Chief Justice.

On reflection that is the wrong way to resolve this issue. I have decided that I must stop the case now and ask the Chief Justice to assign another Judge to hear it afresh. I have reached that decision because of the danger of the appearance of bias on my part if I continue trying this case. That is a real possibility because of what has happened.

I do not question Counsels’ right to raise this issue especially as I raised it at earlier hearings before the trial itself started. What causes me real concern is the manner and timing in which it was brought up.

Mr Cook is asking me to prove that I have the right to sit and try this case. He says that he doesn’t doubt the existence of my Commission, and he says he doesn’t disbelieve me when I say I was appointed as Commissioner in 1991 without any restriction as to particular cases or indeed to time. Nonetheless he still wants me to produce the commission so that he can “be confident” of my authority to hear the case.

This theme is to some extent continued in a letter written (I am sure in an attempt to try and resolve the situation and be helpful) by the Public Solicitor suggesting that every one be provided with a copy of my commission, presumably by me, so that Counsel in the case can state their views.

Of course this may simply be because Mr Cook seemingly has had difficulty in finding any reference to my appointment. He says he has looked in the Government Gazettes where he "would expect such things to be recorded" and had not yet been able to find it. In an effort to be helpful I suggest he turns to page 62 of the 1992 Solomon Islands Gazette where he will find notice number 50.

This is not a situation that I have come across before. I know of no other Judge or Commissioner of the High Court who has been asked, in the middle of a case, to prove he has the right to sit and try a case. I would therefore have to be completely insensitive not to feel personally affronted by the manner this issue was raised and by the timing involved. I am also sure that the public perception will be that I have been singled out in some way. That being so I feel it would be impossible for me to carry on with this case. I have come to this conclusion very reluctantly. I realise that it will cause delay and inconvenience. I realise and regret this may entail the Defendants spending more time on remand. In reaching my decision whilst I have considered those very important matters the overriding consideration is the thought that justice must not only be seen to be done it should manifestly and undoubtedly be seen to be done. There would be a real possibility of the fair minded and interested spectator in the public gallery looking at all this and thinking that it would be impossible for me to be totally unbiased in my subsequent management of this case. I do not think I can put it any better than Lord Denning MR when he said, "Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking" "The judge was biased.."¹

This case will be referred to the Chief Justice’s directions and mention list so that a fresh trial can be fixed before another judge.

R D Chetwynd
Commissioner

END NOTES:

1. Metropolitan Properties Ltd v Lannon [1968] EWCA Civ 5; [1968] 3 All ER 304 at page 310