Gitoa v Regina [2011] SBHC 111; HCSI-CRAC 46 of 2011 (8 August 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 46 of 2011

SIMON GITOA

-V-

REGINA

HEARING: 25 July 2011
JUDGMENT: 8 August 2011

M. Manaka for the Appellant
T. Walenenea for the Crown

Palmer CJ.

This is an appeal against the order of the Magistrates' Court dated 22nd November 2010, in a long form of preliminary inquiry ("LFPI") conducted pursuant to section 212 of the Criminal Procedure Code ("CPC"). Three days, 16 – 18 November 2010, were set aside for this. It had been agreed between Counsels that seven witnesses would be called. Defence had indicated that they wanted to cross examine those witnesses. Prosecuting Counsel however had put defence Counsel on notice on 15 November that they may apply for committal after only a couple of witnesses had been called if they formed the view that sufficient evidence had been adduced for the purpose. This they did after the third witness had been called. Defence objected arguing that they had a right to cross examine the remaining four witnesses. The presiding Magistrate however ruled in favour of the application of prosecution and committed the case to the High Court.

The defence appealed against that decision arguing that the accused had a right to cross examine the remaining witnesses at a LFPI. They cited no case authority, relying solely on the wording of the relevant sections[1] to draw a conclusion that having agreed with prosecution to have only seven witnesses examined that prosecution was obliged to call those four remaining witnesses as well. It seems that the defence was arguing that there was a duty to hold a LFPI pursuant to the relevant provisions. This meant there was a duty to call all the seven witnesses that had been agreed upon before a decision can be taken for committal or not. The question this raises therefore is whether prosecution was legally obliged to call those witnesses.

The flaw in the argument of defence is in overlooking the purpose of committal proceedings and failing to read sections 211 and 212 of the CPC in the light of that purpose. There is no separate right of cross examination other than when it arises after examination in chief by prosecution. The primary purpose of a committal hearing is to determine if the facts alleged therein would, if proved in evidence constitute sufficient grounds for committal for trial. It is to determine whether there is sufficient evidence to put him on trial in the High Court. In some instances the test of sufficiency has been described as establishing a prima facie case and not whether on the materials presented an accused should be convicted, but whether he could be convicted[2]. See also Blackstone's Criminal Practice 1992, at page 1085, para. D6.19, in which the learned Author points out that the purpose of committal proceedings is merely to establish whether or not there is enough evidence against the accused for him properly to be tried on indictment. The learned Author points out that the burden resting on prosecution is not a heavy one and therefore they may well be able to raise a case for trial without having to call all the evidence at their disposal. He pointed out that if prosecution decide not to call a witness to testify at committal proceedings, the defence cannot force them to do so. He cited in support the case authority of Epping and Harlow Justices, ex parte Massaro[3]. In that case, the defendant wished to cross examine the victim, a young girl, of an alleged sexual assault. The prosecution however declined to do so, and called instead other supporting evidence, which was sufficient to have the defendant committed for trial.

The defence had argued that they ought to have been given the opportunity to cross examine the principal witness in that case and that it cannot be said that the defendant has a case to answer if the principal witness was not examined.

In his judgement, Lord Widgery CJ said:

"For my part I think that it is clear that the function of committal proceedings is to ensure that no one shall stand his trial unless a prima facie case has been made out. The prosecution have the duty of making out a prima facie case, and if they wish for reasons such as the present not to call one particular witness, even though a very important witness, at the committal proceedings, that in my judgement is a matter within their discretion, and their failure to do so cannot on any basis be said to be a breach of the rule of natural justice."

This view was also upheld in Grays Justices, ex parte Tetley[4], where the court also held that the defence cannot insist that the prosecution call before the examining justices every witness on whose evidence they intend to rely on at trial.

The onus of establishing sufficiency of evidence or sufficient grounds lies with prosecution. While they had initially agreed to call seven prosecution witnesses to be examined, they reserved the right and did make this clear, to make a submission of sufficiency of evidence at such a time as they considered the requirement had been reached. This they did after three witnesses had been called.

The accepted test now recognised in England, is where the examining justices would commit if there was evidence on which a reasonable jury could properly convict[5]. The standard of proof prosecution are required to satisfy at committal proceedings is very low, lower than that resting on a plaintiff in civil proceedings and commonly referred to as a 'prima facie case' or a 'case to answer'.

In a case from the Northern Territory, in Australia, R. v. Ngalkin[6], prosecution had called only one eye-witness at committal. They had proposed to call another four at the trial proper. The defence objected and asked for a stay until further committal. They had argued that they suffered serious detriment by not having the other four witnesses being cross examined. The Court ruled in their favour noting that there was material before the magistrate which raised a question of self-defence and if the magistrate had heard all the evidence and particularly that of the four additional eye witnesses and if the accused had had an opportunity of cross-examining them, that there was a distinct possibility that he might not have committed the accused for trial.

At the hearing of this appeal I asked if there was any material which had been placed before the Magistrates' Court which raised an issue which was relevant for the four remaining witnesses to be called and which would prejudice the defence case in the committal stage. None was raised although counsel for prosecution had observed in her written submissions, that the issue of intoxication may be raised as being relevant to the offence of murder for which the accused had been charged with.

I have had the opportunity to peruse the evidence but I am not satisfied sufficient material had been raised, that had the remaining witnesses been called, would raise a distinct possibility that the learned magistrate might not have committed the accused for trial. The issue of intoxication in the circumstances of this case, if raised at all, is a matter which ought rightly to be determined at the trial court and not in the committal proceedings.

I am satisfied therefore no error of law had been committed by the learned Magistrate when she committed the case for trial at the High Court at that point of time.

There is one final matter which I wish to point out. This relates to the course of action to be taken to challenge the decision of a Magistrate in a committal proceeding and is a jurisdictional question. While the procedure followed in committal proceedings is judicial in nature and the presiding magistrate required to act judicially, the function of a court in deciding whether a person charged should or should not be committed for trial is non-judicial[7]. The proper course of action to take to challenge the decision of an examining magistrate is by judicial review rather than appeal.

For that reason as well, this appeal should also be dismissed. Rather than have this matter sent back I have decided to exercise my discretion as a reviewing court and dismiss the application. I find no error of law or fact in the decision to commit this matter to the High Court for trial, which would warrant the intervention of this court.

Orders of the Court.

1. Dismiss appeal.
2. Uphold decision of the Magistrates' Court dated 22nd November to commit case to the High Court for trial.
   

The Court.

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^[1] Sections 211 and 212 of the CPC.
^[2] Moti v. Public Prosecutor [1999] VUCA 5, Criminal Appeal Case 01 of 1999 (23 April 1999)
^[3] [1973] QB 433.
^[4] (1979) 70 Cr App R 11.
^[5] See Blackstone’s Criminal Practice 1992, page 1086 para. D6.21
^[6] (1984) 71 FLR; 12 A Crim R 29 (NT)
^[7] R. v. Murphy [1985] HCA 50; (1985) 158 CLR 596; 61 ALR 139; 16 A Crim R 203; Huddart Parker & Co Pty Ltd v. Moorehead 8 CLR p. 357. See also Cragg v. Lewes District Council [1986] Crim LR 800, referred to in Blackstone’s Criminal Practice 1992 at p. 1099, para. D6.30