JAMES SOGOMO 

V

 REGINA

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, DCJ)
Criminal Jurisdiction

Criminal Case No. 245 of 2016

Date of Hearing	:	20 October 2016
Date of Judgment	:	24th February 2017

Mr. Lawry for the Appellant
Mr. Vaiyu for the Respondent 

JUDGMENT

Mwanesalua DCJ:

The Appellant James Sogomo was convicted of House Breaking under section 300 (a) of the Penal Code by the Magistrate Court at Gizo and was sentenced to fourteen months imprisonment on 3rd May 2016. He appeals to this court against his conviction on the following grounds:

1.	The Learned Magistrate erred in refusing to stay the proceedings in relation to the house breaking charge.

2.	The Learned Magistrate erred in law in allowing the prosecution to upgrade the charge of Criminal Trespass to House Breaking on the day of the trial.

3.	The Learned Magistrate failed to properly consider the application for stay of proceedings by the Applicant.

The Appellant was originally charged with criminal trespass at the Magistrate Court. The prosecution alleged that the Appellant committed the offence on 19th April 2015 at Molevanga Village at Choiseul Province. He was arrested and remanded in custody. On 19 November 2015, the Appellant was arraigned. He pleaded not guilty to the charge and the trial was set down for 17 February 2016.

But on 17th February 2016, the trial was vacated and the Appellant was granted bail. The case was further adjourned to 16th March 2016 to set a new date for trial. The case was finally set for trial on 11th April 2016.

The trial did not commence on 11th April 2016.  On 13 April 2016 a substituted charge of house breaking was laid against the Appellant and he pleaded not guilty of that charge. 

Counsel for Appellant made an application to stay the substituted charge. After hearing the application the Magistrate court refused to stay the prosecution of the new charge.

It appears to this court that the Applicant was not afford sufficient time to prepare his defence for the more serious of house breaking. That created unfairness to the Appellant.

In the view of this court the Appellant was not afforded sufficient time to prepare his defence as provided under section 10 (2) of the Constitution.

ORDER

The court therefore makes the following orders: 

(a)	That the conviction is set aside
(b)	That the sentence is quashed
(c)	And that James Sogomo be acquitted and released from prison.

Order Accordingly.

THE COURT

Hon. Justice Francis Mwanesalua
Deputy Chief Justice