R v Kuper [2023] SBHC 148; HCSI-CRC 432 of 2023 (11 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kuper
Citation:
Date of decision:	11 December 2023
Parties:	Rex v Malcom Kuper
Date of hearing:
Court file number(s):	432 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. The request of the DPP to review ruling under section 47 of the Magistrate Courts Act is refused. 2. The trail of Mr. Malcom Kuper to continue or proceed in the Magistrate Court. 3. No further order.
Representation:	Waisanau P for the Crown Kwaiga L for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Magistrate Courts Act [cap 20] S 47 (1) (h) and (4), Criminal Procedure Code S 297 [cap 7]
Cases cited:	Magistrates Courts Act S 46, S 47

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 432 of 2023

REX

V

MALCOM KUPER

Date of Ruling: 11 December 2023

Waisanau P for the Crown
Kwaiga L for the Defence

RULING

Maina PJ:
Introduction

1. This matter came to the court by a letter of request to the Registrar of the High Court dated 25^th August 2023 for the review under section 47 (1) (h) and (4) of the Magistrate Courts Act(Cap 20) and section 297 of the Criminal Procedure Code (Cap 7).
2. It is the Chief Magistrate’s ruling and refusal of application by the Crown for their witnesses to give evidence by audio-visual link.

Brief Background

3. The accused is charged with unlawful wounding and the matter was listed for trail before the Magistrate Court. However, the Crown was not able to proceed with the trail as the witnesses had return to back their country Canada. The Crown raised the issues of funding and security to bring the witnesses back to Solomon Islands for this case. The reasons for the witness to give evidence by audio-visual link was not accepted and the Chief Magistrate refused the application.

The Letter

4. I think it is proper to raise a matter at this time that while it is said the request for review of the ruling came to the court by a letter dated 25^th August 2023. I noted during the submissions of the counsels there is no such letter referred to by the Crown in the court case file (probably misplaced by the Registry staff).
5. Crown was not able to provide a copy of that letter but Counsel Kwaiga for the defence provided a copy to the court. Counsel Kwaiga raised an issue in his submission that this letter should not be accepted as it should properly done.

The Issues

The issues are:

(i) Whether it is proper or procedural in law to seek the power to invoke or review of the judge under section 47 of the Magistrate Courts.
(ii) If it so whether Chief Magistrate erred to refused the application for the audio-visual link.

6. On the Issue one, it is clear that the request to invoke or review of the judge under the provision in the Magistrates Court Act of the ruling was made by a letter to the Registrar.
7. The Power of Judges to revise decisions of Magistrates under section 47 Magistrates Court Act upon receipt of the list of criminal cases referred to in the section 46 of the Act provided or subject to any enactment specifying any penalty, impose, reduce, enhance or alter the nature of any sentence^[1]. Thus, make such other order as justice may require and give all necessary and consequential directions^[2].
8. It can be asked if the matter was for the purpose of revision under sections 46 and 47 of the Magistrates Act. Certainly, it is not as the matter did not come from the Criminal list referred to under section 46 of the Magistrates Act.
9. The High Court have unlimited original jurisdiction to hear and determine any civil or criminal proceedings however when such is exercise the judge have to ensure the matter was brought to the court in the process provided in the law.
10. With this matter as mentioned earlier it is a request for the judge to review under section 47 (1) (h) and (4) of the Magistrates Courts Act, a process that do not the request of the DPP.
11. If the ruling by the magistrate on the application for audio-visual link was refused and concerns or what DPP claim in the interests of justice, then appropriate step for such an issue is to appeal against the ruling of the court.
12. With these I am decline to entertain this request of the DPP in pursuance of section 47 of the Magistrate Courts Act.
13. There was no appeal filed on the claim of interests of justice and lack of process in the filing of the case and so it is not appropriate to proceed and determine the Issue

Order of the Court

1. The request of the DPP to review ruling under section 47 of the Magistrate Courts Act is refused.
2. The trail of Mr. Malcom Kuper to continue or proceed in the Magistrate Court.
3. No further order.

THE COURT
Hon. Justice Leonard R. Maina
Puisne Judge

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^[1] Section 47 (1) (a) of the Magistrates Act
^[2] Section 47 (1) (h) of the Magistrates Act