Maisa v Crown [2022] SBHC 124; HCSI-CRC 63 of 2022 (27 October 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maisa v Crown
Citation:
Date of decision:	27 October 2022
Parties:	Godfrey Maisa v Crown
Date of hearing:
Court file number(s):	63 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. The appeal is upheld, 2. The Magistrate Court’ decision is set aside, 3. Matter is remit back the Magistrate Court for proper of compliance and process of section 144 of the CPC and or, 4. For the Appellant to take his plea or arraignment under section 195 (1) of the Criminal Procedure Code, No further order
Representation:	Houa D for the Applicants Rehomora M for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Criminal Procedure Code S 144 (2), , S 195 (1), S 144 (1), S 177
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 63 of 2022

GODFREY MAISA

V

CROWN

Date of Ruling: 27 October 2022

Houa D for the Applicants
Rehomora M for the Respondent

RULING

Maina, PJ:

This is an appeal from the decision of the Magistrate Court that the appellant is of unsoundness mind so that he is incapable of making the defence under section 144 (2) of the Criminal Procedure Code (CPC).

The Magistrate upon the submission to him a Psychiatrist report of the Defendant made the orders that the Appellant was of unsound mind and was incapable of making the defence.

The Appellant appealed against the ruling on the ground that:

1. The learned magistrate erred in law in the application of the relevant test for unsoundness of mind so that he is incapable of making his defence pursuant to section 144 (2) of the Criminal Procedure Code,
2. The finding that the accused is of unsoundness of mind so that he is incapable of making his plea is unsupported by the evidence.

And the Appellant seeks the order of the court to:

1. To set aside the decision of the Magistrate Court,
2. Remit the matter to the Magistrate Court so that the Appellant can be called upon to plead or arraign under section 195 (1) of the Criminal Procedure Code,
3. Any other Order that the Court thinks fit.

Brief Background

The Appellant is alleged to set a fire to a building owned by Victoria Puru at Waiharoru, West Bauro Makira Province on 17^th February 2021.

Appellant was transferred from Kira Kira, Makira Province to Honiara and on 28^th October 2021 the Appellant appeared in the court and the Presiding Magistrate ordered that the Crown provide disclosers and to follow up the mental health report.

On 4^th November 2021, the Appellant Counsel from the Public Solicitors received the disclosures for the case and includes the Forensic report dated 29^th October 2021.

On appearance in the court on 11^th November 2021, the Crown tendered the Forensic report and the matter adjourned for ruling under section 144 (1) of the CPC. Appellant filled the submission on the issue.

On 12^th November 2021, the Presiding Magistrate made a ruling that the Appellant is of unsoundness of mind and unfit to plead to the charge of arson and further directed that he dealt with under section 144 (5) of the CPC.

And thereafter this appeal was filed in this court.

The issue

Whether the Presiding Magistrate applied the relevant test for unsoundness of mind under section 144 (2) of the CPC and the orders he made in his ruling on the12^th November 2021.

The Law

Section 144 (1) and (2) of the CPC provide:

“144.- (1) When in the course of a trial or preliminary investigation the court has reason to believe that the accused is of unsound mind so that he is incapable of making his defence, it shall inquire into the fact of such unsoundness.
(2) If the court is of opinion that the accused is of unsound mind so that he is incapable of making his defence, it shall postpone further proceedings in the case”.
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(5) Upon consideration of the record, the Governor-General in his discretion may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with such order; and such warrant shall be sufficient authority for the detention of the accused until the Governor-General in his discretion makes a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in manner provided by sections 147 and 148’’.

The ruling did not disclose if the Appellant had appeared at the trail or preliminary before the court with any behaviour of any form of acts or unable to plead the charge. Thus that would make the Magistrate with the reason to believe that the Accused was of unsound mind that would not make or incapable of making his defence.

The ruling did not disclose any fact except in his terms when the Presiding Magistrate stated in paragraph 1 of his ruling:

“Having heard both Crown and Defence and having gone through the Psychiatrist report of the Defendant by Dr Paul Orotaloa, I am of the opinion that the Defendant suffered some form of mental health disorder and/or unsoundness of mind, thus incapable of making a defence”.

On that he then made the orders under section 144 (2) of the CPC.

The provision of section 144 (1) of the CPC require the Magistrate to have the reason to believe that the Accused is of unsound mind. It is upon that he must inquire into the fact of such unsoundness of the Accused.

The inquiring of the fact on unsoundness of the Accused may prompt the orders under subsection (2) of section 144 of the CPC.

It is at the inquiring of the fact when evidences any behaviours of any form or acts, unable to plead the charge and the Psychiatrist report that would be produced to the court. I noted the submissions of the Counsels when requested by the Presiding Magistrate; however, they are not evidences to the inquiry into the fact of the unsoundness mind.

The requirements to satisfy the ruling of the Presiding Magistrate were not presented even to see by appearing before him at the court to plead was not in his ruling or there seems to be no inquiry by him into the fact of the unsoundness mind of the Appellant.

An inquiry into fact of unsoundness is an obligatory requirement for the application of section 177 of the CPC. However, with the ruling of the Presiding Magistrate, he just took the Psychiatrist report, though there were submissions from the Counsels, and he made the orders. In all circumstances at the formal inquiry the Psychiatrist report may be produced as evidence.

I accept the appeal that learned Presiding Magistrate had erred in law in the application of the relevant test for unsoundness of mind of the Appellant to section 144 of the CPC.

Orders of the Court

1. The appeal is upheld,
2. The Magistrate Court’ decision is set aside,
3. Matter is remit back the Magistrate Court for proper of compliance and process of section 144 of the CPC and or,
4. For the Appellant to take his plea or arraignment under section 195 (1) of the Criminal Procedure Code,
5. No further order.

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge