Regina v Damusoe; Regina v Kotaru [2008] SBHC 84; HCSI-Criminal Review Case 1 of 2008 (30 June 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Review Case No. 1 of 2008
WMC-CRC No. 236 Consolidated with WMC-CRC No. 320 of 2007

REGINA

V

DAMUSOE

AND:

REGINA

V

BRIBANE KOTARU

Date of Hearing: 30th June 2008
Date of Review: 30th June 2008

Sgt. Tanito for the Prosecution in both cases
Both Accused appeared in Person

REVIEW JUDGMENT

FAUKONA, J.

1. Criminal Case File No. 236 of 2007 was merged with Criminal Case File No. 320 of 2007 for the sake of convenience. Though both Criminal Cases are distinctive in dates of occurrence, both accused were charged for the Criminal Offence of Assault Causing Bodily Harm contrary to section 245 of the Penal Code. The sentences passed by two different Magistrates were reconciliation under Section 35(1) of the Magistrate Court Act for both cases.

2. Section 35(1) MCA

In Criminal Cases a Magistrates Court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any offence of a personal or private nature not amounting to felony and not aggravating in degree, on terms of payments of compensation or other terms approved by such court, and may thereupon order the proceedings be stayed or terminated.

3. Under Section 35(1) there are three situations where Magistrates Count may promote reconciliation.

(1) In a common assault case.

(2) Offences of a personal or private nature not amounting to felony and not aggravating in degree.

(3) On terms of payment of compensation, or other terms approved by court.

4. The offence of Assault Causing Actual Bodily Harm is an offence of a personal or private nature and not amounting to felony. Section 245 Penal Code expressly stated that it is a misdemeanour offence and not felony. One may therefore ask, is the offence of ACBH not aggravating in degree. It is aggravating in degree. It is an assault that caused the victim to sustain injuries. To ascertain the extend of the injuries a Magistrate presiding must inquire, and where possible obtain a medical report of the injuries sustained by the victim. Only then the court may verify the extent of the injuries, and may verify the degree of aggravation of the offence. Not only that, other facts may also assist the court to determine the degree of aggravation. For instance whether the accused was drunk at that time; has he got any previous conviction. Whether the injury was caused by a weapon of any nature. The age of the victim, if he is a child then that is aggravation, or if the victim is a woman or girl that is aggravation. Whether the accused at the time of inflicting the injuries assisted by other men then it is aggravation.

5. Custom Compensation

In case one a compensation of $100.00 was paid, and a letter signed by the accused, complainant, chiefs representatives and Church elders to affirm that $100.00 was paid and reconciliation had been done by the parties. Under S. 35(1) MCA that payment of compensation is one of the grounds to be considered before the court may promote reconciliation.

6. Whilst custom compensation is a recognised and acceptable practice in Solomon Islands as affirmed by Schedule 3(3)(1) of the Constitution, the court must be cautious when exercising its discretion to promote and encourage reconciliation. Be well versed that the reconciliation is genuine and not someone trying to buy their way out of criminal justice. People with a lot of money will abuse the law by resorting to compensation each time they come face to face with the law. Not only that but they will endeavour to influence the victim to consent to their strategy. In doing so it floors the entire function of the criminal justice system (see Michael Buruka v. R (unreported Criminal Appeal Case No. 31 of 1991, R v. Asuana (1998) SILR204).

7. I feel it would be a good practice in particular where an offence not wholly qualified to be reconciled under S. 35(1) MCA, that the presiding Magistrate has to enquire and get the facts of the case first and then further inquire to get information as I have stated in paragraph 4 above, before considering whether to promote and encourage reconciliation, or to refuse it. In these cases, there were no facts attached or even medical reports. How would a court verify that there is no aggravation?

8. Since the cases had been heard and reconciliation promoted about a year ago, it would be of no beneficial to anyone now should I intervene. I confirm the reconciliation but it would be in the interest of justice that court should make full inquiry before promoting or encouraging reconciliation.

THE COURT