R v Murray [2019] SBHC 13; HCSI-CRC 150 of 2018 (25 February 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Murray
Citation:
Date of decision:	25 February 2019
Parties:	Regina v Henry Murray
Date of hearing:	24 January 2019
Court file number(s):	Criminal Case 150 of 2018
Jurisdiction:	Criminal
Place of delivery:	High Court of Solomon Islands, Honiara
Judge(s):	Maina PJ
On appeal from:	Magistrates Court
Order:	Order by the Court of 16th May to suspended or stay pending the determination of applicant’s appeal to the High Court is withdrawn, Case is remitted back to the magistrate court for sentence of the accused under s203 of the CPC, Counsel for crown and accused to submit the submission on sentence to the magistrate for the sentence of the accused on 11 counts, Accused is bail to appeal before the magistrate court on 11th March 2019,09.00hrs, Bail imposed for the accused is extended, Appeal by accused on conviction is stayed or pending the lower courts’ full compliance of s203 of CPC for the accused Henry Murray Accordingly, the application for bail variation is refused.
Representation:	Ms. S. Ramosae for the Prosecution Mr. L. Kwaiga for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code 91 (1) Criminal Procedure Code s 290(i)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 150 of 2018

REGINA

V

HENRY MURRAY

Date of Hearing: 24 January 2019
Date of Judgment: 25 February 2019

Ms. S. Ramosae for the Prosecution
Mr. L. Kwaiga for the Defendant

RULING ON A PRELIMINARY MATTER

Maina PJ: The Magistrate Court convicted Mr Henry Murray on eleven (11) counts of Official Corruption under section 91 (1) of the Penal Code. When or at the process for the counsels to make submissions on the sentence, the defence informed the magistrate that accused has filed an appeal against the convictions on all counts. Counsel for the defence applied to adjourn the case but the magistrate presiding in the case refused to granted any adjournment. Defence then sought the suspension of sentencing of the accused, pending the hearing of the appeal.

With the accused’s case, he was convicted and yet to be sentenced for the offences he had been convicted on. The direction by the court to suspend the sentencing of the accused purportedly under section 290 (i) of the Criminal Procedure Code (CPC), a matter that raises a preliminary issue in law.

When this matter was obvious, I had directed the counsels to make submissions on this preliminary matter before any further proceeding in the appeal, otherwise such is an abuse of the court process.

Issues

1. Whether this court or the court which convicted Henry Murray has jurisdiction to suspend the sentencing after the conviction, pending his appeal on the convictions?
2. Whether the court has jurisdiction to or may suspend the sentencing of a convicted accused who had not been sentenced by the court?
3. Whether a bail be granted to the accused?

The Law

Part VI of the CPC provide for the procedure in trials before Magistrates’ Court and among others section 203 of the CPC. A provision which require the court to pass sentence once a conviction is entered.

With the decision of the court, section 203 of the CPC states that:

“203. The court having heard both the prosecutor and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him accordingly to law or shall acquit him or may, pursuant to the provisions of section 35 of the Penal Code, without proceeding to conviction, if it is of opinion that it is not expedient to inflict any punishment notwithstanding that it thinks the charge against the accused is proved, make an order dismissing the charge either absolutely or conditionally”.

And Part IX of the CPC deals with the appeals from the Magistrates’ Court and cases stated and also among others, section 290 provide for situation to apply for bail and the system for execution of the sentence if bail not granted pending appeal.

Section 290 of the CPC states:

“290 (1) Where a convicted person presents or declares his intention of presenting a petition of appeal, the High Court or the court which convicted such person may, if the circumstances of the case it thinks fit, order that he be released on bail, with or without sureties, or if such person is not released on bail shall, at the request of such person, order that the execution of the sentence or order against which the appeal is pending be suspended pending the determination of the appeal. If such order be made before the petition of appeal is presented and no petition is presented within the time allowed the order for bail or suspension shall forthwith be cancelled.
(2) Where the appellant is released on bail or the sentence is suspended, the time during which he is at large after being so released or during which the sentence has been suspended shall be excluded in computing the term of any sentence to which he is for the time being subject.
(3) An appellant whose sentence is suspended but who is no admitted to bail shall during the period of such suspension be treated in like manner as a prisoner awaiting trial”.

The Accused’s case

The counsel for accused argued that an order to stay the sentencing was made under section 290 of CPC and the magistrate court has stayed the sentencing of the accused by order of the High Court of 16^th May 2018, pending the outcome of the appeal to the High Court against the convictions.

Issue 1

This is the question of law i.e. section 290 (1) of the CPC and relate to the power of the court if it has power to withhold or suspend the sentencing of the accused until or pending his appeal on the conviction.

On the appointed day for submissions on sentence in the magistrate court, defence counsels applied for adjournment but the magistrate refused or did not grant any adjournment. She further made a ruling and dismissed any invocation of section 290 of the CPC for the accused as he was not yet sentence for the offences he had been convicted on.

Upon the refusal the Defence Counsel further applied to the High Court under section 290 of the CPC for suspension of sentencing, pending appeal against the conviction. It is said that the Crown did not object the appeal by the accused against his convictions. There is no record of hearing for the application in the record except a signed order dated 16^th May 2018 which stated that:

“The sentencing of the applicant by the Chief Magistrate in Court .........is suspended or stayed pending the determination of the applicant’s appeal to the High Court which was filed on...............
The applicant Mr Henry Murray is released on bail pending the determination of his appeal filed on .........by the court”.

The provision under section 290 (i) of the CPC provide or pull in two situations. The first situation is when a convicted accused presents or declares his intention of presenting a petition of appeal, the court may grant a bail. And the second situation, if the convicted accused is not released on bail, then the court may order that the execution of the sentence or order against which the appeal is pending be suspended pending the determination of the appeal.

The court has no jurisdiction to suspend the sentencing the accused for the offence he was convicted on. Section 290 (i) of the CPC is to grant bail when a convicted accused presents or declares his intention to appeal or the execution of any sentence or order on appeal be suspended pending the determination of the appeal, if there is any.

Issue 2

Again this is a question of law that relate to a convicted accused who has not yet been sentenced by the court and or the court may suspend the sentencing of the accused, pending his appeal on the conviction.

Section 203 of the CPC state the court “shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him” This provision is mandatory and the court must or to pass sentence once a conviction is entered. In this case there are yet sentences to be imposed by the court which convicted the accused. It is mandatory and the magistrate must sentence the accused on the II charges which he was convicted on before the provision of section 290 (i) CPC be invoked or the suspension for the execution of the sentences and, if there is any.

This provision do not apply to any ruling in the course or trial of a case which the court may suspend the hearing pending any appeal to the High Court on matters and usually on point of law. Section 290 (i) of CPC is only operative or effective and may be invoked, when the decision of conviction and sentence under section 203 of the CPC is delivered on the accused by the court.

There is no provision for a suspension of sentencing or suspend of sentencing for an accused under section 290 (i) of the CPC as pursued by the counsel for the appellant and such is rather an abuse of court process.

Issue 3

The accused was and is currently on bail and so the bail sought under section 290 (1) CPC do not apply for him.

Taking into account the rulings on the stated issues the court has no power or jurisdiction to suspend the sentencing the accused for the offence he was convicted on. Section 290 (1) of the CPC is to grant bail when a convicted accused presents or declares his intention to appeal or the execution of any sentence. For this case against the accused he has not yet sentence for the charges he was convicted on, and there is no sentence for this court or magistrate court to suspend its executions.

ORDER

4. The order by the court of 16^th May 2018 to suspend or stay pending the determination of the applicant’s appeal to the High Court is withdrawn,
5. The case is remitted back to the magistrate court for the sentence of the accused under section 203 of the CPC,
6. Counsel for the Crown and accused to submit the submissions on sentence to the magistrate for the sentence of the accused on II counts,
7. Accused is bail to appeal before the magistrate court on 11^th March 2019, 09.00hrs,
8. The bail imposed for the accused is extended,
9. The appeal by the accused on the convictions is stayed or pending the lower courts’ full compliance of section 203 of the CPC for the accused Mr. Henry Murray.

Further, I noted in the file an application by the accused for variation of bail conditions, however the accused has been convicted on serious offences under the Penal Code. On that such application should not be entertained. Accordingly, the application for bail variation is refused.

THE COURT
.................................
Justice Leonard R Maina
Puisne Judge