Regina v Samani [2011] SBHC 143; HCSI-CC 104 of 2011 (22 November 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

FLICKSON SAMANI

Date of Hearing: 21st November 2011
Date of Judgment: 22nd November 2011

Mr. Naigulevu for the Crown.
Mrs. Wagavonovono and Mr. Gray for the accused.

RULING

Apaniai, PJ:

1. Flickson Samani ("Samani") was a first class magistrate posted at the Central Magistrate Court in Honiara. He is charged with 1 count of larceny as an employee contrary to section 273(b)(i) of the Penal Code and 1 count of abuse of office contrary to section 96 of the Penal Code.
   
2. For the larceny charge, the prosecution says that Samani stole the sum of $2,790.00, money which he had collected by way of court fines between November 2007 and April 2010 while he was on court circuit.
   
3. For the charge of abuse of office, the prosecution says that Samani abused his office by retaining the said $2,790.00 which he should have retired to the Solomon Island Government ("SIG") upon his return to Honiara after the court circuits.
   
4. Unfortunately, the trial into the above charges was commenced on 18th November 2011 without the accused being arraigned. It was assumed by all parties concerned that arraignment had been made. The trial therefore proceeded on the assumption that the accused had been arraigned and had pleaded not guilty to both charges.
   
5. The trial had reached the stage where two witnesses have already given evidence in chief and were subjected to cross examination and re-examination at the end of their evidence. These two witnesses have already been released. Furthermore, a number of statements by other witnesses relevant to the case have also been tendered into evidence by consent.
   
6. It was not until the next hearing on Monday 21st November 2011 that it was realized the accused had not yet been arraigned. This irregularity was raised by counsel for the prosecution at the commencement of hearing on Monday 21st November 2011. An adjournment was then granted to enable counsel argue the matter. Both counsel had researched the legal position and both counsel agree that the case should proceed despite the irregularity. Both counsel also agree that the accused may be arraigned and that the evidence already given and produced in court may be adopted. I am grateful to counsel for their submissions and assistance in relation to this important legal issue.
   
7. It is a fundamental rule of law[1] that an accused person charged with a criminal offence be informed in a language that he understands of the nature of the offence charged. The procedure prescribed for informing an accused at trial of the nature of the offence is that provided for under section 250 of the Criminal Procedure Code. That provision requires an officer of the court to read over, and explain if need be, to the accused the charge or charges against him as contained in the information. The accused is then required to plead to the charge or the charges. This process is called "arraignment". It involves the following step[2]:-
   

[a] calling the name written in the charge document so as to identify the accused;

[b] reading and explaining the charge or charges to the accused;

[c] asking the accused to plead to the charge or charges; and,

[c] recording the plea of the accused to the charge or to each of the charges.

8. Where the accused, having understood the charge or charges, pleads not guilty, it is deemed that the accused had put himself upon the country for trial[3].
   
9. Arraignment is therefore an important process in a criminal trial. It was said in Ellis v R[4] ("Ellis")[5] that without it, all proceedings that followed from the point when arraignment would have been taken was regarded as a mistrial and void. This also appears to be the position taken in R v Maenu'u[6].
   
10. In Ellis, a clerk informed the accused in court that he was charged with the offence of burglary and theft. The clerk also explained to the accused that the particulars included theft of one thousand six hundred pounds. The clerk then asked the accused "Ellis, how do you plead, guilty or not guilty?" to which Ellis's lawyer intervened and said that "(the accused) wishes to plead guilty to the theft of three hundred and eighty pounds but not as charged". The lawyer also added that Ellis would plead guilty to the burglary charge. Thereupon, the case continued and the accused was convicted on a plea of guilty and sentenced to 18 months imprisonment. On appeal against conviction and sentence, the Court of Appeal allowed the appeal and quashed the conviction and sentence on the basis that the plea did not come from the accused personally. The court held that the accused must plead personally to the arraignment and not through his counsel or any other person on his behalf. The court further held that if the accused had himself not pleaded to the indictment, everything that followed must be regarded as a mistrial.
    
11. The principle in Ellis was, however, distinguished in Williams (Roy) v R ("Williams")[7]. In Williams, the accused appeared to answer a charge of handling stolen goods. The clerk then asked the accused in court whether he was Roy Brian Williams, to which the accused replied that he was. At that stage, counsel for the Crown asked for an adjournment on the ground that one of the crown witnesses whom the defence wanted to cross examine was sick. The adjournment was granted and the court clerk entered into the court record "adjourned to a date to be fixed. Plea N.G." In fact no arraignment had yet been made at that stage and the clerk should not have recorded a not guilty plea.
    
12. When the case next came on for hearing, a different judge was assigned to hear the case. The clerk assigned to the case was also new and the lawyers for both the prosecution and the defence were also new. The new clerk had assumed, on the basis of what was written in the court record, that the accused had already been arraigned and therefore, without asking the accused to plead, proceeded to empanel the jury. The trial proceeded and the accused was found guilty of the offence. The accused appealed to the Court of Appeal alleging that the trial was a nullity on the basis that no arraignment was done.
    
13. The Court of Appeal, however, rejected the appeal and held that:-
    

[a] where a defendant intended to plead not guilty, he could either expressly or impliedly waive arraignment and proceed to trial;

[b] although it was unfortunate that the defendant had not been asked to plead, it was implicit in the proceedings that the defendant had waived his right to plead not guilty personally; and,

[c] accordingly, the defective arraignment had not invalidated the trial.

14. In my judgment, the decision in Williams should be applied in this case. This case is one where it is not disputed that the accused was not arraigned. However, there is no doubt whatsoever that the accused had intended to plead not guilty to the 2 charges against him and the trial had proceeded on the (erroneous) assumption that he had so pleaded not guilty.
    
15. It follows therefore that although the accused was not arraigned, it was implicit in the proceedings that he had waived his right to plead not guilty personally. Accordingly, the failure to arraign the accused does not invalidate the trial and therefore the trial will continue as if the accused had been arraigned and had pleaded not guilty to both counts.
    

THE COURT

James Apaniai
Puisne Judge

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^[1] See s. 10 (2), Constitution.
^[2] R v Maenu’u CRAC No. 11 of 1998 (Unreported).
^[3] Section 254, CPC.
^[4] (1973) 57 CrApp Rep. 571
^[5] (1973) 57 CrApp Rep. 571
^[6] R v Maenu’u (above).
^[7] [1977] 2 WLR 400.