Feratelia v Regina [2006] SBHC 137; HCSI-CRAC 268 of 2006 (6 September 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case 268-06

ROBERT WALE FERATELIA

V.

REGINA

Hearing: 4th August 2006
Judgement: 6th September 2006

S. Lawrence for the Appellant
P. Little for the Respondent/Crown.

Palmer CJ.:

The Appellant was charged with a number of offences; Inciting a Riot at Parliament House, Honiara on 18th April 2006, Inciting a Riot on the 19th April 2006 in Honiara and Managing an Unlawful Society and Unlawful Assembly. In the course of their investigations Police had identified a number of prosecution witnesses who had expressed fears of reprisal or harassment and have requested anonymity when giving evidence. At the preliminary inquiry in long form before the Magistrates Court, two witnesses were the subject of an order of the magistrate’s court in which their identity were suppressed and evidence given by audio-link from another room. The Appellant appeals against that order and raises a number of grounds in support of them. He argues that:

(1) The learned Magistrate erred in finding that he had power to permit witnesses to give evidence otherwise than from the witness box in the Court room;

(2) The learned Magistrate erred in ordering that the identity of the witnesses be suppressed;

(3) The learned Magistrate erred in refusing to refer the matter under section 18 of the Constitution once an issue was raised as to a breach of section 10 of the Constitution.

The third ground was abandoned at hearing of this appeal and therefore no longer relevant.

A number of issues arise for determination in this appeal:

(i) Does the Appellant have locus to file an appeal in this matter.

(ii) If so, does the Magistrates Court have jurisdiction to order suppression of identity of witnesses and evidence to be received other than from the Witness Box in the court room?

(iii) Whether the orders made by the presiding Magistrate offend against section 179 of the Criminal Procedure Code ("the CPC")?

(iv) Whether the direction of the presiding Magistrate offend against the provisions of section 212 of the CPC?

(v) Whether the orders of the presiding Magistrate offend against section 264 of the CPC?

(vi) Do the orders made by the presiding magistrate offend against section 10(2)(c) of the Constitution?

(vii) Do the orders made by the presiding magistrate offend against section 10(2)(e) of the Constitution?

1. Does the Appellant have locus to file an appeal in this matter?

The Prosecution argues that what the magistrate ordered was a discretionary ruling in a long-form preliminary inquiry. It is not an appeal from a summary hearing or a trial, where any decision may be binding on a defendant. The magistrate was performing an administrative function. Mr. Little for the Crown submits that the appeal does not relate to a judgment, sentence or order. It is a ruling on the method of giving evidence and not an appeal from an "order" of the court.

The Appellant on the other hand relies on section 283 of the Criminal Procedure Code ("CPC") which gives right of appeal to the High Court against any judgement, sentence or order of a Magistrate’s Court.

For the foregoing reasons I answer this question in the affirmative.

(i) The order of the learned Magistrate to commit the Appellant for trial at the High Court is an appealable order. It is an order which has binding effect on the Appellant. On the other hand, if the learned Magistrate had found that there was insufficient evidence to commit him to trial he could equally have made an order for his discharge which would have been binding on the Crown. The Crown on the same token would have been entitled to appeal the decision of the magistrate.

(ii) The ground relied on raises issues of law which are justiciable before this court. The question whether the learned Magistrate has jurisdiction to suppress identity of witnesses and direct that their evidence be given other than from the Witness Box in the Court Room raises jurisdictional issues in law and alleged breaches of statutory law and the Constitution, which are clearly appealable. If the court finds that the learned Magistrate had exceeded his powers and thereby made an order which he ought not to have made in the first place then that is clearly an appealable order or matter.

2. Whether the court has power to order that the identity of witnesses who have expressed a genuine fear for their safety and that of their families to be suppressed and not disclosed to the defendant and to be able to give their evidence other than from the witness box in the court?

Mr. Lawrence for the Appellant says that the Magistrates Court as a creature of statute has no inherent jurisdiction to make orders for the protection of witnesses. He says that the CPC was designed by Parliament to govern the conduct of matters before the criminal Courts of Solomon Islands. The CPC is silent as to extraordinary measures such as audio evidence or anonymous witnesses. In the circumstances he says these measures are not lawful.

Mr. Little for the Prosecution on the other hand submits that the courts do not lack power to protect witnesses and the presiding magistrate or judge is the master of his proceedings[1]. He argues that the common law which is part of the laws of Solomon Islands through Schedule 3 to the Constitution, provided it is not inconsistent with the Constitution or any Act of Parliament, contains ample authority to support such orders by the court. Numerous authorities have been referred to which will be dealt with in more detail later. He did point out though that the underlying feature in all those decisions was that the court retained jurisdiction to control its own proceedings and to make such orders as it deemed appropriate without detracting from the rights of the accused to a fair trial. Mr. Little also considered what the position was in other jurisdictions and has provided useful material for my consideration to that effect. I am grateful for that.

For the foregoing reasons I answer the question posed in the affirmative.

1. The overriding feature in this matter is the right to a fair trial as encapsulated in section 10(1) of the Constitution. It reads as follows:
   

"10.—(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

The common law right to a fair trial, memorably described by Lord Bingham of Cornhill CJ, as the "birthright" of every British citizen[2], however necessarily entails a balancing exercise in the reception of evidence at trial. For without evidence freely and voluntarily given in open court, no justice would be done, a fortiori, where there is evidence of intimidation and harassments of witnesses resulting in their unwillingness to attend court for fear of their safety and lives and that of their families. The due administration of Justice would be interfered with and not have been seen to be done. That right as enshrined in our Constitution operates in no different manner with the reception of witness evidence and rights of the accused to a fair trial. It necessarily follows that the courts in this country must have power to control their own proceedings to enable them to ensure that its processes are not only fair to the accused but also to the witnesses[3].

2. The High Court as a court of "unlimited original jurisdiction to hear and determine any civil or criminal proceeding[4]..." has inherent power as well at common law to control its own proceedings. This is consistent with what was said by Justice Mitting in R. v. Davis & ors (ibid) at page 13, quoting Lord Morris in Connelly v. DPP (1064) 2 AC 1254 at 1301:
   

"The Court undoubtedly possesses an inherent jurisdiction at common law to control its own proceedings, if necessary by adapting and developing its existing processes... "to defeat any attempted thwarting of its process".[5]

The issue in contention here pertains to the proceedings adopted by the Magistrates Court in which it ordered suppression of names and address of two witnesses and for the evidence to be obtained via audio link.

Whilst the Magistrates Court is a creature of Statute[6], in the exercise of its statutory functions, it must necessarily be able to control its own proceedings so as to ensure that its court processes are fair, independent and impartial and that there is no "attempted thwarting of its process". Part of that judicial process entails considering material before it that will enable it to determine what is fair and just in the conduct of each case. Where an application has been lodged by the Prosecution for witness identity to be suppressed and evidence to be obtained through means other than in the presence of the accused, the court is entitled to consider such matter and rule accordingly. I am satisfied that is what the learned Magistrate had done in this case.

As I understand the appeal to have been portrayed, it is not in issue that the affected witnesses in this appeal hold genuine fears for their safety and lives and that of their families. The presiding Magistrate was entitled to make that finding and to make orders to accommodate that fact.

3. Whether the orders made by the presiding Magistrate offend against section 179 of the Criminal Procedure Code ("the CPC")?

Section 179 provides as follows:

"179. Except as otherwise expressly provided, all evidence taken in any inquiry or trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if

any)."

The CPC does provide for situations where the personal attendance of the accused may be dispensed with[7] or where members of the public may be excluded[8]. Section 188 provides that by consent a person who had been charged for a minor offence the maximum sentence of which does not exceed a fine of $100.00, or imprisonment not exceeding six months, or both such imprisonment or fine and where proof of service has been done, the court may proceed to hear and determine the case in the absence of the accused. Section 86 deals with offences that are not felonies and offences punishable only by fine or imprisonment not exceeding three months or both such fine and imprisonment. In such instances, the court may dispense with the personal attendance of the accused, provided he consents to the trial taking place in his absence and enters a guilty plea in writing or appears by an advocate.

Our Constitution[9] also provides that apart from his consent, a trial may take place in his absence where he so conducts himself in such a manner as to render the conduct of the proceedings in his presence impracticable and has been ordered to be removed and for the trial to proceed in his absence.

The exceptional situation would be for a trial to proceed in situations where the accused may not even be present at his trial. In this instance, he has not been excluded but is still able to hear evidence by audio-link.

The situation which presented itself before the learned Magistrate at the Committal hearing therefore was not altogether unusual or unheard of. Whilst in other jurisdictions specific legislation have been enacted to address such problems, that does not detract from general principles which apply across the broad spectrum of judicial power of the court, to control its own proceedings. A magistrate or judge is master of his or her own court and in balancing the interests of the accused to a fair trial where circumstances warrant, a magistrate or judge is entitled to make such orders as are necessary for the protection of witnesses.

What is of paramount importance is that there is a fair trial; but the definition of what is fair[10] is multi-faceted. It is not merely fairness to the accused, but to the Crown and witnesses as well.

I find there is a common thread or theme running across the fabric of judicial reasoning and support for such actions/orders in other jurisdictions. For instance, the protection for vulnerable witnesses had been granted by the courts since Smellie v. R (1919) 14 Cr App R 128. In that case, the appellant had been convicted of assaulting, ill-treating and neglecting his eleven year old daughter and was ordered by the court to sit outside on the steps leading out of the dock, and out of the sight of his daughter while she gave evidence. The trial judge was of the view that the child would be terrified by the presence of her father. When the matter went on appeal, it was argued that at common law, an accused person had a right to be within the sight and hearing of all the witnesses throughout the trial. It was further argued that there was a likely prejudicial effect on the jury by the removal of the appellant from the court when the complainant gave evidence. Lord Coleridge J giving the judgment of the court said:

"If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him from securing the ends of justice by removing the former from the presence of the latter."

See also the case of R. v. DJX and ors (1990) 91 Cr App R 36 and R. v. Sparkes (Supreme Court of Tasmania unreported 1 October 1996), where the Lord Chief Justice at 41, reiterated that it was within the discretion of the trial judge to have screens erected so that the accused could not see the witness and vice versa, although the accused could hear everything that was said, stressing that what is of paramount importance is that it was a fair trial: fair to all, the defendants, the Crown and the witnesses.

Of pertinent relevance, is the case of R. v. Davis (supra) at 27, where the English Court of Appeal held that there is clear jurisdiction at common law to admit incriminating evidence given against the defendant by anonymous witnesses, and quoting Al Fawaz v. Governor of Brixton Prison 1 (2002) AC 556, in extradition proceedings, it reaffirmed the position that the decision of the examining magistrate to receive evidence of two anonymous witnesses in support of the allegation of terrorism had been upheld by the House of Lords.

In R. v. Ngo; Dinh; Dao (2001) NSWSC 339 (4 May 2001), the trial judge had ordered that the evidence of two witnesses who were fearful of retribution by the defendant Phuong Ngo, be given by audio-visual link. The learned judge rejected the submission by the defence that the accused should be entitled to see the person giving evidence against him, because to do otherwise would deny him the opportunity to properly contest that evidence. On appeal in R. v. Ngo (2003) NSWCCA 82 at [108] the Court of Criminal Appeal acknowledged that having the evidence of an accusing witness to be received by audio-visual link external to the courtroom was unfair to the accused because it deprived him of a face-to-face confrontation with the witness. It however went on to say that the court must consider the degree and effect of the unfairness. It then reiterated the fundamental principle of the right to a fair trial and pointed out that the test is whether the making of such a direction will cause the trial to be an unfair one to the accused. It stated that a direction should not be made if it would mean that an accused would not have a fair trial.

The Court continued at page 119, in relation to the "right" to see and know the identity of his accusers:

"The right is by no means an absolute one and it has been accepted for a considerable time that misconduct of an accused can lead to waiver of the right. Even in the U.S., where the right of confrontation is entrenched in the Sixth Amendment, the Supreme Court has held that the right to a face to face trial with witnesses is not absolute. In England and Wales the right to face to face confrontation is not an absolute one. The same appears to be the position in Canada and New Zealand."

The position in Australia appears to have been established by R v. Ngo (supra) at [123] where the court reiterated the position that what was paramount was what was fair in the circumstances as between the appellant and the witnesses. The Court of Criminal Appeal held that the making of the direction was in the best interests of the administration of justice. They accepted that the presiding judge had carried out a discretionary balancing exercise, unfairness to the appellant on one hand and the fears of the witness and the probability that they would not give their evidence if such direction had not been made on the other hand and found no error in that.

In the United States in Maryland v. Craig [1990] USSC 130; 497 US 836 (1990), the United States Supreme Court held that evidence received by way of a one-way closed circuit television was not contrary to the Sixth Amendment to the Constitution. The Court held there was no absolute right to a face-to-face trial with witnesses.

In New Zealand, in R v. Accused (supra), McMullin J held that the use of a screen at the trial did not prejudice the accused, who had a fair trial. He pointed out that the right to be present at his trial, did not necessarily entail a right to confrontation. As long as the accused had the right to remain in court throughout his trial and in a position where he could hear the proceedings, understand them and communicate with his counsel, there was no breach of that provision.

Such a position is similar to our section 179 of the CPC which speaks of evidence being taken in his presence or where his personal attendance has been dispensed with in the presence of his advocate. I am not satisfied this section will be breached by audio-link, the use of screens or video link, as the evidence will be heard by the accused, although not seen and therefore in his presence. His counsel will be able to cross-examine the witnesses.

Applying the same test to this appeal, whether the making of such a direction (that evidence be received other than in the witness box by audio link from another room and the identity of the witnesses to be suppressed) will cause the trial to be an unfair one to the accused, I am not satisfied that that has been shown and amounted to any unfairness to the accused. It is important to appreciate that the purpose of a preliminary inquiry is to determine whether there is a sufficient case[11] to put the accused on his trial at the High Court. The fact therefore that the witness is not within the sight of the presiding magistrate was not prejudicial to the exercise of his judicial discretion to determine whether there is a sufficient case or not. Issues of credibility, demeanour and appearance are matters for assessment at the trial proper after the matter had been committed to the High Court.

4. Whether the direction of the presiding Magistrate offend against the provisions of section 212 of the CPC?

Subsection 212(2) of the CPC provides that:

"The accused person may put questions to each witness produced against him, and the answer of the witness thereto shall form part of such witness's deposition."

Mr. Lawrence for the Appellant says that this section entitles him to put questions to the witnesses which may relate to their identity.

That however is not correct. There is no absolute right to ask any question which he thinks is necessary to witnesses and to require an answer. The court retains the power to decide whether any question is relevant, appropriate, misleading, contrary to hearsay rules or objectionable. Where an order has been made for suppression of identity, that is valid reason for prohibiting questions which go to revealing the identity of such witness and would not offend the provisions of section 212 of the CPC.

The suppression of identity of witnesses has also been the subject of numerous case authorities in other jurisdictions. Mr. Little for the Crown has conveniently referred to a number of case authorities in his written submissions, which succinctly deal with such subject. In South Australia, it is classified as Public Interest Immunity. The full Court of the Supreme Court in Gee v. Magistrates Court of South Australia & Anor, [2004] SASC upheld the decision of the magistrate to withhold the name of a witness in a case which involved the right of an accused to know the name of witnesses to be presented by the prosecution. At page 60, the court pointed out that there was no common law principle in which a person charged with a criminal offence had the right to know his or her accuser. It pointed out that there is a balancing exercise to be performed where the public interest of the safety of witnesses is being advanced as opposed to the right of the defendant to know the true identity of a witness. The court held that the fact of non-disclosure of the name of a witness whose credibility may be in issue at trial is no bar to the effective conduct of a preliminary examination.

The very same conclusion can be made in the context of this case. There is nothing on the appeal to suggest that the conduct of the preliminary inquiry in this case had been prejudicial to the rights of the appellant to a fair trial.

See also the comments of Besanko J at 116 in which he referred to Sankey v. Whitkan [1978] HCA 43; (1978) 142 CLR 1 as the leading authority in Australia on Public Interest Immunity. The clear public interest in terms of the administration of justice is in ensuring that witnesses are protected and not deterred from giving evidence by threats or intimidation.

Such position has also been recognised in the United Kingdom in exceptional circumstances, where the judge may permit a witness to conceal his identity entirely from the accused and the question whether such circumstances exist is a matter in the discretion of the judge to determine: R v. Taylor (G.) The Times, August 17, 1994, CA and R v. Davis (supra) at [25-27].

I am not satisfied therefore that section 212 imposes any requirement on the disclosure of the identity of witnesses and that any orders made otherwise in the interests of justice would amount to a breach of that section.

5. Whether the orders of the presiding Magistrate offend against section 264 of the CPC?

The Appellant says that section 264 is consistent with clear legislative intention that the identity of witnesses must be disclosed to the defence before any additional witnesses will be allowed to be called.

That however does not take away the underlying discretion of the court where it is satisfied that an additional witness is fearful of his safety and has requested anonymity to consider whether their identity should be withheld from the defence provided notice is given of this fact. The same principles of fairness to the accused, the crown and the witnesses, also apply in that context.

6. Do the orders made by the presiding magistrate offend against section 10(2(c) of the Constitution?

Section 10(2)(c) of the Constitution provides:

"10. (2) Every person who is charged with a criminal offence—

(a) ...

(b) ...

(c) shall be given adequate time and facilities for the preparation of his defence;"

I am not satisfied this provision expressly prohibits the making of such orders by a magistrate. This relates to being given adequate time and facilities for preparation of his defence. There is no suggestion that the Appellant in this case has not been given adequate time and facilities for the preparation of his defence in this instance, where he has been notified of such application for anonymity. I find no breach of this provision.

7. Do the orders offend against paragraph 10(2)(e) of the Constitution?

Paragraph 10(2)(e) provides:

"10. (2) Every person who is charged with a criminal offence—

...

(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; "

This provision allows for the examination by the defendant in person (if not legally represented) or by his legal representative if represented and for the attendance of witnesses on his behalf. There is no requirement of a defendant to see his accuser "face-to-face". The Appellant is represented in this case. I find no breach of that section.

The order of this court would be to dismiss the appeal. Having said that, it is important to point out that at trial, an audio-link would not suffice. Where a judge is judge both of fact and law, he must have access to the witnesses and be able to assess their demeanour, appearance etc. for purposes of assessing credibility and reliability of such witnesses. The same requirement would also apply to the Prosecutor and where the defendant is represented, by defence counsel.

ORDER OF THE COURT:

Dismiss Appeal.

The Court.

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^[1] R. v. Brown (Milton) (1998) 2 Cr App R 364
^[2] Quoted in R. v. Davis & ors [2006] WL 1333347; [2006] EWCA Crim 1155, by Mr. Justice Mitting, President of the Queens Bench Division at 10-13
^[3] see also R. v. Brown (Milton) (1998) 2 Cr App R 364 which provides that courts have power to protect witnesses and the presiding magistrate or judge is the master of proceedings in his or her court.
^[4] section 77(1) of the Constitution
^[5] see also Taylor v. Attorney General (1975) 2 NZLR 675, R. v. Murphy (1990) NZLR 306 and R. v. Accused (1992) 1 NZLR 257.
^[6] See Part II of the Magistrates’ Courts Act [cap. 20]
^[7] sections 86 and 188 of the CPC.
^[8] section 64 CPC.
^[9] section 10(2)(f)
^[10] In R v. X,Y and Z (1990) 91 CAR 36, where screens for vulnerable children were allowed and the Court of Appeal held that: “the system operates fairly; fairly not only to the defendant, but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies ... we do not need authority to confirm us in the view that what the judge did here in his discretion was a perfectly proper, and indeed a laudable attempt to see that this was a fair trial to all, the defendants, the Crown, and indeed the witnesses ....”
^[11] Section 212(1) of the CPC.