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Chapter 7: Fundamental Rights and Freedoms

Table Of Contents 

[7.0] Introduction 

This chapter examines the following 'Fundamental Rights And Freedoms' of all persons: 

·                'Fundamental Rights & Freedoms Of The Individual Generally';

·                'Protection Of Right To Life';

·                'Protection Of Right To Personal Liberty';

·                'Protection From Inhumane Treatment';

·                'Protection From Privacy Of Home & Other Property';

·                'Right To A Fair Hearing Within A Reasonable Time';

·                'Right To A Fair Trial By An Independent & Impartial Court';

·                'Right To Be Present In Court';

·                'Right To Be Heard In Open Court';

·                'Right To An Interpreter';

·                'Right To Assistance To Unable To Understand Proceedings';

·                'Right To Legal Representation';

·                'Right To Silence';

·                'Right To Testify'; and

·                'Right To A Copy Of The Judgment'.

As regards the following rights and freedoms: 

·                'Protection From Slavery & Forced Labour', see section 6 of the Constitution;

·                'Protection From Deprivation Of Property', see section 8 of the Constitution;

·                'Protection Of Freedom Of Conscience', see section 11 of the Constitution;

·                'Protection Of Freedom Of Expression', see section 12 of the Constitution;

·                'Protection Of Freedom Of Assembly & Association'; see section 13 of the Constitution;

·                'Protection Of Freedom Of Movement'; see section 14 of the Constitution; and

·                'Protection From Discrimination On Grounds Of Race, etc', see section 15 of the Constitution.

[7.1] Fundamental Rights & Freedoms Of The Individual Generally 

Section 3 of the Constitution states: 

'Whereas every person in Solomon Islands is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely: -- 

(a)                life, liberty, security of the person and the protection of the law; 

(b)               freedom of conscience of expression and of assembly and association; and 

(c)                protection for the privacy of his home and other property and from deprivation of property without compensation, 

the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.' 

[7.2] Protection Of Right To Life 

Section 4 of the Constitution states: 

'(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law in force in Solomon Islands of which he has been convicted. 

(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable – 

(a)                for the defence of any person from violence or for the defence of property; 

(b)               in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; 

(c)                for the purpose of suppressing a riot, insurrection or mutiny; or 

(d)               in order to prevent the commission by that person of a criminal offence, 

or if he dies as the result of a lawful act of war.' 

Refer also to: 

·                     the law relating to the 'Defence Of Person & Property' which is examined commencing on page 451; and 

·                     the law relating to 'Homicidal Offences' which is examined commencing on page 610. 

[7.3] Protection Of Rights To Personal Liberty 

Section 5 of the Constitution states: 

'(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say – 

(a)                in consequence of his unfitness to plead to a criminal charge; 

(b)               in execution of the sentence or order of a court, whether established for Solomon Islands or some other country, in respect of a criminal offence of which he has been convicted; 

(c)                in execution of the order of a court of record punishing him for contempt of that court inferior to it; 

(d)               in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law; 

(e)                for the purpose of bringing him before a court in execution of the order of a court; 

(f)                upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands; 

(g)               in the case of a person who has not attained the age of eighteen years, under the order of a court or with the consent of his parent or guardian, for the purpose of his education or welfare; 

(h)               for the purpose of preventing the spread of an infectious or contagious disease; 

(i)                 in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community; 

(j)                 for the purpose of preventing the unlawful entry of that person into Solomon Islands, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Solomon Islands or for the purpose of restricting that person while he is being conveyed through Solomon Islands in the course of his extradition or removal as a convicted person from one country to another; or 

(k)               to such extent as may be necessary in the execution of a lawful order of a court requiring that person to remain within a specified area within Solomon Islands or prohibiting him from being within such an area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during any visit that he is permitted to make to any part of Solomon Islands in which, in consequence of any such order, his presence would otherwise be unlawful. 

(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, and in a language that he understands, of the reasons for his arrest or detention.

(1)               Any person who is arrested or detained – 

(a) for the purpose of bringing him before a court in execution of the order of a court; or 

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands, 

and who is not released, shall be brought without undue delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either conditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.' 

Refer also to the law relating to: 

·                     the 'Power To Arrest' which is examined commencing on page 242; 

·                     'Bail' which is examined commencing on page 378; 

·                     'Abuse Of Process' which is examined commencing on page 138; and 

·                     'Preliminary Investigations / Inquiries' which is examined commencing on page 310. 

[7.4] Protection From Inhumane Treatment 

Section 7 of the Constitution states: 

'No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.' 

[7.5] Protection For Privacy Of Home & Other Property 

Section 9 of the Constitution states: 

'(1) Except with his consent, no person shall be subject to the search of his person or his property or the entry by others on his premises. 

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -- 

(a)                in the interests of defence, public safety, public order, the prevention and investigation of breaches of law, public morality, public health, town or country planning, the development and utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit; 

(b)               for the purpose of protecting the rights or freedoms of other persons; 

(c)                for the purpose of authorising an officer or agent of the Government, an authority of the government of Honiara city or of a provincial government or a body corporate established by law for a public purpose to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or duty or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government, that authority or that body corporate, as the case may be; 

(d)               for the purpose of authorising the entry upon any premises in pursuance of an order of a court for the purpose of enforcing the judgment or order of a court in any proceedings; or 

(e)                for the purpose of authorising the entry upon any premises for the purpose of preventing or detecting criminal offences, 

and except so far as that provision or, as the case may be, anything done under the authority thereof is shown not to be reasonably justifiable in a democratic society.' 

Refer also to the law relating to the 'Power To Enter & Search' commencing on page 256. 

[7.6] Right To A Fair Hearing Within A Reasonable Time 

[7.6.1] Constitution 

Section 10(1) of the Constitution states: 

'If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.' (emphasis added) 

[7.6.2] General Principles 

Both the prosecution and the defendant have the 'right to a fair hearing within a reasonable time'. 

The four factors in determining whether a defendant had been afforded a fair hearing 'within a reasonable time' are: 

[i] the length of the delay; 

[ii] the reason for the delay; 

[iii] the defendant's assertion of his/her right; and 

[iv] any prejudice to the defendant. 

In Director of Public Prosecutions v Rolland Kimisi (Unrep. Civil Case No. 67 of 1990) the Court of Appeal stated at pages 3 – 4: 

'The learned Chief Justice in his judgment first considered the requirement contained in S.10 for a hearing within a reasonable time. A similar provision to S.10 appears in a number of constitutions and the Chief Justice referred to Bell –v- DPP (1986) LRC (Constitutional) 392 in which the Privy Council considered such a provision in the Constitution of Jamaica. Lord Templeman, in giving the opinion of the Board, said some guidance was provided by the judgments of the Supreme Court of the United States in Barker –v- Wingo 407 US 514 (1952) and he referred to the judgment of Powell J where he pointed out that:- 

"………the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot say how long is too long in a system where justice is supposed to be swift but deliberate ….." 

"A speedy trial" is the formula contained in the sixth amendment to the Constitution of the United States. Mr. Justice Powell had then gone on to identify four factors which in his view the Court would assess in determining whether a particular defendant had been deprived of his right to a speedy trial. Those factors were the length of the delay, the reason for the delay, the defendant's assertion of his right and any prejudice to the defendant. Lord Templeman referred to the adoption of the four factors by McDonald J sitting in the Alberta Queens Bench Court in R –v- Cameron (1982) 6 WWR 270 and acknowledged the relevance and importance of the four factors and the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings.' (emphasis added) 

See also: R v Paul Maenu'u & Augustine Tuita (Unrep. Criminal Appeal Case No. 11 of 1998; Awich J; at page 3) & R v Robert Tumulima & Richard Meke (Unrep. Criminal Appeal Case No. 54 of 2000). 

If a defendant seeks a permanent stay on the grounds of 'inordinate' delay, he/she must be able to show that he/she will suffer serious prejudice to the extent that no fair trial can be held. In other words, the continuance of the proceedings amounts to an 'abuse of the process' of the court. The granting of a stay simply means that the prosecution is prevented from further proceeding with the charge. When a stay is granted a Court essentially rules that there has been an 'abuse of the process of the court' by the prosecution. 

The law relating to an 'Abuse Of Process' is also examined commencing on page 138. 

In R v Sawoniuk [2000] 2 CrAppR 220 [[2000] CrimLR 506] Lord Bingham CJ, delivering the judgment of the Court of Appeal, held at pages 230 – 231: 

'The judge directed himself in accordance with the principles laid down in Attorney – General's Reference (No. 1 of 1990) (1992) 95 CrAppR 296, [1992] QB 630 […]. From that decision he derived the following principles: 

"(1) that generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment and, where either demands a verdict, a judge has no jurisdiction to stand in the way of it and therefore the jurisdiction to stay proceedings is exceptional; 

(2) a stay should never be imposed where the delay has been caused by the complexity of the proceedings; 

(3) it would be rare for a stay to be imposed in the absence of fault on the part of the prosecutor or complainant; 

(4) delay contributed to by the actions of the defendant should not found the basis of a stay; 

(5) the defendant needs to show on a balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held. In other words, the continuance of the proceedings amounts to an abuse of the process of the court." 

The judge went on to cite the passage in the judgment of the Court (at pp. 303 and 644) in which it was made plain that the prejudice which a defendant would have to show to justify the grant of a stay is prejudice which could not be cured by an appropriate ruling in the course of a trial, or by a judicial exclusion of evidence, or by an appropriate direction to the jury. 

Attention was drawn to Tan v Cameron (1993) 96 CrAppR 172, [1992] 2 AC 205, at pp. 184 – 185 and 225, but the effect of that passage is in our judgment simply to emphasise the burden on a defendant seeking a stay to satisfy the court that if the trial goes ahead it will be unfair to the defendant. We were also referred to Central Criminal Court, ex p. Randle and Pottle (1991) 92 CrAppR 323, [1991] 1 WLR 1087, a decision given before Attorney – General's Reference (No. 1 of 1999). Reliance was placed on the passage in the judgment of the court at pp. 343 and 1111, where it was suggested that the strength of the prosecution case may be a relevant consideration. Even if that be so, it does not undermine the overriding principle, which is that the judge must be persuaded, before granting a stay, that continuance of the proceedings will cause serious prejudice to the defendant by denying him a fair trial. In our judgment the judge directed himself in strict accordance with the law.' (emphasis added) 

See also: R v Henworth [2001] 2 CrAppR 4; [2001] CrimLR 505; Charles & others v The State [2000] 1 WLR 384; R v Central Criminal Court, Ex parte Randle & Pottle [1992] 1 AllER 370; [1991] 1 WLR 1087; (1991) 92 Cr AppR 323; [1991] CrimLR 551; R v West London Magistrate, Ex parte Anderson (1985) 80 CrAppR 143; R v Wilkinson [1996] 1 CrAppR 8; Attorney – General of Hong Kong v Wai – bun [1993] 3 WLR 242; [1993] 2 AllER 510; (1994) 98 CrAppR 17; [1994] 1 AC 1; R v Derby Crown Court, Ex parte Brooks (1985) 80 CrAppR 164; [1985] CrimLR 754; R v Bow Street Stipendiary Magistrate, Ex parte Director of Public Prosecutions & R v Same, Ex parte Cherry (1990) 91 CrAppR 283; Jago v District Court of New South Wales (1989) 168 CLR 23 & Lillico v McKenna & others (1995) 77 ACrimR 396. 

[7.7] Right To A Fair Trial By An Independent & Impartial Court 

[7.7.1] Introduction 

Section 10(1) of the Constitution states: 

'If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.' (emphasis added) 

Section 9 of the Magistrates' Courts Act (Ch. 20) states: 

'Where a Magistrate is a party to any cause or matter, or is unable, from personal interest or any other sufficient reason, to adjudicate on any cause or matter, the Chief Justice shall direct some other Magistrate to act instead of such aforesaid Magistrate for the hearing and determination of such particular cause or matter, or shall direct that such cause or matter shall be heard and determined in a Magistrates' Court in any other district.' (emphasis added) 

Section 67(1) of the Criminal Procedure Code (Ch. 7) states (in part): 

'Whenever it is made to appear to the High Court – 

(a)                that a fair and impartial inquiry or trial cannot be held in any Magistrates' Court; [...] 

it may order – 

(i)                 that any offence be inquired into or tried by any court not empowered under the preceding sections of this Part [Part IV -- 'Provisions Relating To All Criminal Investigations & Proceedings'] but in other respects competent to inquire into or try such offence; or 

(ii)               that any particular criminal case or class of cases be transferred from a Magistrates' Court to any other Magistrates' Court; or 

(iii)             that an accused person be committed for trial to itself.' (emphasis added) 

[7.7.2] General Principles 

In Ngina v R [1987] SILR 35 Ward CJ held at page 39: 

'Of course, if a magistrate is aware of bias in his attitude to a particular defendant, he should always disqualify himself but I cannot accept that he must consider whether the sensitiveness of the accused man are such that he may possibly feel bias from some unspoken fear. […] 

Passing the main allegation of bias, Lord Denning's test of whether right minded people would think there was a real likelihood of bias has been more recently stated by Daly CJ in the unreported case of Kamai v Aldo, CLAC No. 17 of 1982 as "would a reasonable bystander conclude, having observed the proceedings, that justice has clearly been done." 

Magistrates in communities as small as those in this country are frequently faced with a man whom they have tried before. They may have tried him more than once, they may have disbelieved him on oath and they may well have sentenced him before with words that suggest a strong view of his previous misdeeds and his honesty. 

None of these matters of itself should be considered reason to disqualify the magistrate from trying the same man on another charge. Of course, if the magistrate did harbour malice or a grudge against the accused he should disqualify himself and this court will be sensitive where any impression of malice or bias has been displayed by a magistrate.' (emphasis added) 

In Talasasa v Paia & another [1980 – 81] SILR 93 Daly CJ commented at page 106: 

'[T]he locus classicus is Metropolitan Properties v Lennon & others (1968) 3 AllER 304 in which Lord Denning said at page 310: 

"The court looks at the impression which would be given to other people. Even if he was impartial as could be, nevertheless, if right – minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does not sit, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough."' 

In R v Liverpool City Justices, Ex parte Topping (1983) 76 CrAppR 170 [[1983] 1 WLR 119] Ackner LJ delivering the judgment of the Divisional Court held at pages 174 - 175: 

'More recently Lord Denning MR has preferred the test of the appearance of bias to that of actual bias. In METROPOLITAN PROPERTIES CO (FGC) LITD v. LANNON [1969] 1 QB 577, 599 he said: "… in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right – minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit …. There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other; the court will not inquire whether he did, in fact, favour one side unfairly. Suffice that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right – minded people go away thinking" 'The judge was biased'. 

In our view, therefore, the correct test to apply is whether there is the appearance of bias, rather than whether there is actual bias. 

[…] 

We conclude that the test to be applied [… is]: Would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the applicant was not possible?' (emphasis added) [word in brackets added] 

In Boateng v The State [1990] PNGLR 342 the Supreme Court adopted the test that was stated in R v Liverpool City Justices, Ex parte Topping (supra) and held: 

The test to be applied in determining whether an accused had been denied a fair trial was whether a reasonable and fair – minded person sitting in a court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the accused was not possible. 

At page 346 the Court stated: 

'Justice requires that there be complete absence of any interference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the outcome of the case. However impeccable a judgment or decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association had no effect on the outcome of the case.' 

In The State v Sari [1990] PNGLR 48 Jalina AJ, sitting alone, held: 

Where a judge is asked to disqualify himself/herself for bias, whether or not it has been shown that there is a real likelihood of bias or a reasonable suspicion of bias and provided the objection is not unprincipled, frivolous or futile, the judge ought to disqualify himself/herself. 

In PNG Pipes Pty Limited & Sankaran Venugopal & Mujo Sefa; Globes Pty Limited & Romy Macasaet (Unrep. SC 592; 23 May 1997; 26 October 1998 & 26 November 1998) the Supreme Court of Papua New Guinea stated at pages 6 – 8: 

'The Full Court [of the Australian Federal Court] in Trustees of Christian Brothers v Cardone (1995) 130 ALR 345] dismissing the appeal on the issue of disqualification for apprehended bias said: 

"The apprehension of bias must be reasonably and not fancifully entertained. The appellate court must be satisfied upon examination of the surrounding facts, that an objective observer would be left with an apprehension, not a conviction, that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion." 

Gallop J, in dissent outlined some useful principles from the Australian High Court and other cases to be applied in cases of imputed judicial bias. He said: 

"On the one hand there are the repeated assertions of the courts that: 

(a)                Judges by their training and experience are able to bring a detached mind to the task: R v Lockie; Ex parte Felman (1977) 18 ALR 93; 52 ALJR 155 at 160; 

(b)               Judges should not too readily accede to applications for disqualification whereby parties may effectively influence the choice of a judge in their cause: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; 66 ALR 239; 

(c)                Judges should resist being driven from their courts by the conduct or assertion of parties; 

(d)               Judges should be disqualified because of the vigour with which they conduct proceedings; 

(e)                Judges should perform the duties of their office, which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness, avoiding the relinquishment of such duties which will necessarily than fall to another judicial officer for whom the task may be no more congenial: Raybos Australia Pty Ltd v Tectran Corp. Pty Ltd (No. 9) (unreported). 

[…] 

The test as formulated by the High Court in determining whether a judicial officer (a judge) is disqualified by reason of appearance of bias as distinct from proved actual bias is whether in all the circumstances a fair minded, lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question" in issue. Livesy v New South Wales Bar Association, supra, at CLR 293 – 4. 

In the Court of Appeal of the Supreme Court of the Northern Territory in Limbo v Little (1989) 65 NTR 19, Martin J said at 27: 

"Judges are capable of putting aside personal predilections arising from life's experiences. We all, I suspect, have views, opinions and attitudes moulded by a variety of factors. Rigorous training in the discipline of the law and in particular the requirement of objectivity, together with public insistence upon judicial integrity, mean that unless some material matter is raised by a litigant, or voluntarily disclosed by the judge, it is accepted that there can be no suggestion of reasonable apprehension of bias. Edmund Burke spoke of "the cold neutrality of an impartial judge". That is what is expected. If impartiality is lacking, or could be fairly thought to be lacking, it may well become evident sooner or later; but it is nor for the litigant to pry into the judge's background."' (emphasis added) [words in brackets added] 

See also: Solomon Islands Medical Association v The Ministry of Health & Medical Services (Unrep. Civil Case No. 30 of 1979; Cooke CJ; at pages 10 – 11); R v Edmond Andresen (Unrep. Criminal Case No. 37 of 1996; Lungole - Awich J; at page 1); Billy Gatu v R (Unrep. Criminal Case No. 93 of 1993; Palmer J; at pages 9 – 10); The Director of Public Prosecutions v John Jackson (Unrep. Criminal Appeal Case No. 5 of 1991; Court of Appeal; at page 3); R v Gough [1993] AC 646; [1993] 2 WLR 883; [1993] 2 AllER 724; (1993) 97 CrAppR 188; R v Weston – Super-Mare Justices, Ex parte Shaw (1987) 84 CrAppR 305; R v Mulvihill (1990) 90 CrAppR 372; R v Eccles Justice, Ex parte Fitzpatrick (1989) 89 CrAppR 324; The State v Joe Ivoro & Gemora Yavura [1980] PNGLR 1; Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329; Fidelis Angai v Buckley Yarume [1987] PNGLR 124; Eastman (1994) 76 ACrimR 9; Ellis & others (1993) 69 ACrimR 193; Winningham v R (1995) 69 ALJR 775; R v Judge Leckie, Ex parte Felman (1977) 52 ALJR 155 at page 158; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at pages 293 – 294; Grassby v R (1989) 168 CLR 1 at page 20; Laws v Australian Broadcasting Tribunal (1989) 85 ALR 659 & Vakauta v Kelly (1989) 167 CLR 568. 

[7.8] Right To Be Present In Court 

Section 10(2) of the Constitution states (in part): 

'Every person who is charged with a criminal offence --- 

(f)                shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge, 

and, except with his own consent, a trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.' (emphasis added) 

Section 179 of the Criminal Procedure Code (Ch. 7) states: 

'Except as otherwise expressly provided [see sections 86 ('Power to dispose with personal attendance of accused'), 188 ('Court may proceed with hearing in absence of accused in certain cases'), 189 ('Appearance of both parties') of the Criminal Procedure Code (Ch. 7) and section 10(2) of the Constitution], all evidence taken in any inquiry or trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his advocate (if any).' (emphasis added) [words in brackets added] 

See however section 192(1) of the Criminal Procedure Code (Ch. 7) which is inconsistent with section 10(2) of the Constitution. To the extent of the consistency it could be argued that section 192(1) of the Criminal Procedure Code (Ch. 7), see section 2 of the Constitution. 

In R v Tuto [1980 – 81] SILR 19 Daly CJ held at page 21: 

'[D]espite the absence of the accused, the same rules of evidence apply in all cases. Thus, unless it can be brought within one of the statutory exceptions, evidence must be given on oath. Indeed to some extent there is a greater burden on the magistrate proceeding in the absence of an accused to satisfy himself that all is in order. It is always for the prosecution to prove their case even if an accused declines to be present.' 

As regards the 'proof of previous convictions' when a defendant is not present, that Court further held that great caution needs to be applied and that there should be strict proof of the 'previous convictions' because there will not be a 'formal admission' in those circumstances. 

The 'judgment in every trial in any criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of such judgment shall be explained in open court', irrespective of the presence of the defendant, see section 10(9) of the Constitution and section 150 of the Criminal Procedure Code (Ch. 7). (emphasis added) 

Section 193 of the Criminal Procedure Code (Ch. 7) states: 

'If the court convicts the accused person in his absence, it may set aside such conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits.' 

See also: R v Howson (1982) 74 CrAppR 172; [1982] CrimLR 720 & R v Shaw [1980] 2 AllER 433; [1980] 1 WLR 1526; (1980) 70 CrAppR 313; [1980] CrimLR 443. 

Refer also to the law relating to: 

·                     the 'Constitution' which is examined commencing on page 4; 

·                     'Formal Admissions' which is examined commencing on page 325; 

·                     'Witnesses With Criminal Histories' which is examined commencing on page 305; and 

·                     the section titled 'Decision' commencing on page 330. 

[7.9] Right To Be Heard In Open Court 

[7.9.1] Constitution 

Section 10 of the Constitution states (in part): 

'(9) Except with the agreement of all the parties thereto, all proceedings of every court […], including the announcement of the decision of the court […], shall be held in public. 

(10) Nothing in the preceding subsection shall prevent the court or other adjudicating authority from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other authority-- 

(a) may by law be empowered so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of decency, public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or 

(b) may by law be empowered or required so to do in the interests of defence, public safety or public order.' (emphasis added) 

[7.9.2] Statutory Provisions 

Section 64 of the Criminal Procedure Code (Ch. 7) states: 

'The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open court to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of the inquiry into or trial of any particular case that the public generally or any particular person shall not have access to or be or remain in the room or building used by the court.' (emphasis added) 

Section 4(4) of the Juvenile Offenders Act (Ch. 14) states: 

'In a juvenile court no person other than the members and officers of the court and the parties to the case, their advocates or authorized representatives and other persons directly concerned in the case, shall, except by leave of the court, be allowed to attend: 

Provided that – 

(a)                bona fide representatives of any news agency or information service shall not be excluded, except by special order of the court; and 

(b)               no person shall publish the name, address, school, photograph, or anything likely to lead to the identification of the child or young person before the juvenile court, save with the permission of the court or in so far as required by the provisions of this Act, and any person who acts in contravention of this paragraph shall be guilty of an offence […].' (emphasis added) 

Section 20 of the Juvenile Offenders Act (Ch. 14) states: 

'In addition and without prejudice to any powers which a court may possess to hear proceedings in camera the court may, where a person who in the opinion of the court is a child or young person is called as a witness in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, direct all or any persons, not being members or officers of the court or parties to the case, their advocates or authorized representatives, or persons otherwise directly concerned in the case, be excluded from the court during the taking of the evidence of the child or young person:

Provided that nothing in this section shall authorize the exclusion of bona fide representatives of any new agency or information service.' (emphasis added) 

[7.9.3] General Principles 

In Re Crook [1992] 2 AllER 687 [(1991) 93 Cr AppR 17] Lord Lane CJ, delivering the judgment of the Court of Appeal, stated at pages 691 – 695: 

'In A-G v Leveller Magazine Ltd [1979] 1 All ER 745 at 749 – 750, [1979] AC 440 at 449 – 450 Lord Diplock stated: 

"As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417, [1911 – 13] All ER Rep. 1. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the Press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this. However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice. […]" 

In R v Ealing Justices, ex p Weafer (1981) 74 CrAppR 204 at 205 Donaldson LJ cited the statement of Viscount Reading CJ in R v Governor of Lewes Prison, ex p Doyle [1917] 2 KB 254 at 271: 

"… there is inherent jurisdiction in every Court … to exclude the public if it becomes necessary for the administration of justice …" 

Donaldson LJ added: 

"… it is a very exceptional step to take and it is one which should be avoided if there is any other way of serving the interests of justice." 

As to the role of journalists, Watkins LJ in R v Felixstowe Justices, ex p Leigh [1987] 1 All ER 551 at 558, [1987] QB 582 at 591 stated: 

"No one nowadays surely can doubt that his [the journalist's] presence in court for the purpose of reporting proceedings conducted therein is indispensable. Without him, how is the public to be informed of how justice is being administered in our court?" 

Watkins LJ referred to the vital importance of the work of the journalist in reporting on court proceedings and within the bounds of impartiality and fairness, commenting upon the decisions of judges and their behaviour in and conduct of proceedings […]. 

[…] From the cases it is clear that the public can be excluded only when and to the extent that is strictly necessary, and also that each application must be considered on its own merits. It is not sufficient that a public hearing will cause embarrassment for some or all of those concerned […]. 

[…] 

[W]hile giving full recognition to the importance of the role of the press, it would not be right as a general rule to distinguish between excluding the press and other members of the public. If exclusion of the public is necessary, applying the strict standard required to justify it, it would not usually be right to make an exception in favour of the press. 

There will often be other members of the public, such as the family of a defendant, victims of the alleged crime and others having a direct concern in the case with as much interest in the proceedings and as good a claim to be present as the press. It could cause a real sense of grievance if they were excluded while representatives of the press were allowed to be present.' (emphasis added) [words in brackets added] 

In The Attorney – General v The Solomon Islands Broadcasting Corporation [1980 – 81] SILR 1 Davis CJ stated at page 2: 

'It is well – established that it is a serious contempt to publish details of the previous criminal record of an accused person prior to his trial.' 

In R v Pitman [1991] 1 AllER 468 [[1991] RTR 70] Lord Lane CJ, delivering the judgment of the Court of Appeal, stated at pages 470 – 471: 

'[…] There is it seems a steady flow of appeals to this court arising from visits by counsel to the judge in his private room. No amount of criticism and no amount of warnings and no amount of exhortation seems to be able to prevent this happening. In this case it was an invitation from the judge which caused counsel to visit him in his room. 

The dangers of such visits scarcely need emphasising. They are set out in R v Harper – Taylor and Bakker (1988) 138 NJL 80 at 80 – 81, decided in this court on 19 February 1988, in which Mustill LJ delivered this passage which is worthy of note: 

"A first principle of criminal law is that justice is done in public, for all to see and hear. By this standard, a meeting in the judge's room is anomalous: the essence, and indeed the purpose, being that neither the defendant nor the jury nor the public are there to hear what is going on. Undeniably, there are circumstances where the public must be excluded. Equally, the jury cannot always be kept in court throughout. The withdrawal of the proceedings into private, without even the defendant being there, is another matter. It is true, as this court stated in R v Turner (Frank) [1970] 2 All ER 281 at 285, [1970] 2 QB 321 at 326, that there must be freedom of access between counsel and the judge when there are matters calling for communications or discussions of such a nature that counsel cannot in the interests of his client mention them in open court. Criminal trials are so various that a list of situations where an approach to the judge is permissible would only mislead; but it must be clear that communications should never take place unless there is no alternative. Apart from the question of principle, seeing the judge in private creates risks of more than one kind, as the present case has shown. The need to solve an immediate practical problem may combine with the more relaxed atmosphere of the private room to blur the formal outlines of the trial. Again, if the object of withdrawing the case from open court is to maintain a degree of confidence, as it plainly must be, there is room for misunderstanding about how far the confidence is to extend; and in particular, there is a risk that counsel and solicitors for the other parties may hear something said to the judge which they would rather not hear, putting them into a state of conflict between their duties to their clients, and their obligation to maintain the confidentiality of the private room. The absence of the defendant is also a potential source of trouble. He has to learn what the judge has said at second hand and may afterwards complain (rightly or not) that he was not given an accurate account.  

Equally, he cannot hear what his counsel has said to the judge, and hence cannot intervene to correct a mis-statement or an excess of authority: a factor which may not only be a source of unfairness to the defendant, but which may also deprive the prosecution of the opportunity to contend that admissions made in open court in the presence of the client and not repudiated by him be taken to have been made with his authority […].' (emphasis added) 

See also: Director of Public Prosecutions v Sanau & Hou Tanabose v Director of Public Prosecutions [1987] SILR 1 at page 3. 

[7.10] Right To An Interpreter 

[7.10.1] Introduction 

Section 10(2) of the Constitution states (in part): 

'Every person who is charged with a criminal offence --- 

[…] 

(b)               shall be informed as soon as reasonably practicable, in detail and in a language that he understands, of the nature of the offence charged; 

[…] 

shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge, 

[…]' (emphasis added) 

Section 183 of the Criminal Procedure Code (Ch. 7): 

'The language of the court in the case of both the High Court and the Magistrates' Courts shall be English.' (emphasis added) 

Section 59 of the Magistrates' Courts Act (Ch. 20) states: 

'(1) The language of the Magistrates' Courts shall be English. 

(2) In any proceedings in any Magistrates' Court in which the language spoken by any witness or party requires to be interpreted into English, the Magistrate having jurisdiction in the proceedings may appoint suitable persons as interpreters.' (emphasis added) 

Section 184 of the Criminal Procedure Code (Ch. 7): 

'(1) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands. 

(1)               When documents are put in for the purpose of formal proof it shall be in the discretion of the court to interpret as much thereof as appears necessary.' (emphasis added) 

[7.10.2] General Principles 

A proper plea is not rendered in court, unless a defendant: 

[i] fully understands the charge/s which he/she faces; 

[ii] fully understands the full implications of such charge/s; and 

[iii] is able to provide full instructions to his/her legal representative, if applicable. 

Unless such requirements have been met, any 'trial' is a 'nullity', see R v Iqbal Begum (1991) 93 CrAppR 96. 

Therefore, if a defendant does not understand the proceedings the services of an interpreter' must be provided, see R v Lee Kum [1914 – 15] AllER Rep 603; [1916] I KB 337; (1916) 11 CrAppR 293. 

Refer also to the chapter which examines the law relating to 'Sentencing' commencing on page 918. 

Interpreters need to be: 

[i] wholly impartial; 

[ii] suitably skilled in the interpretation of the language in question; and 

[iii] fluent in the language in question, see R v West London Youth Court, Ex parte N [2000] 1 WLR 2368 & R v Mitchell [1970] CrimLR 153. 

'Interpreters', however, are only to be considered as 'translating machines' and their translations must be accurate and the evidence of the defendant, like any other witness whose evidence requires the services of an interpreter, must be interpreted faithfully, see Gaio v R (1960) 104 CLR 419. 

The 'Interpreter's Oath' is as follows: 

'I swear by Almighty God that I will well and faithfully interpret and true explanation make all such matters and things as shall be required of me according to the best of my skill and understanding', see Archbold Criminal Pleadings, Evidence and Practice, 2002 ed., at page 325. 

[7.11] Right To Assistance To Understand Proceedings 

Section 149 of the Criminal Procedure Code (Ch. 7) states (in part): 

'(1) If the accused, though not insane, cannot be made to understand the proceedings – 

(a)                in cases tried by a Magistrate's Court, the court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution, and, if the defence has been called upon, of any evidence for the defence, the court is of the opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the Governor – General's pleasure; but every such case shall be subject to confirmation by the High Court; 

(b)               in cases which are subject of a preliminary investigation by a Magistrate's Court and of trial by the High Court –

(i) the Magistrate's Court shall hear the evidence for the prosecution, and if satisfied that a prima facie case has been proved shall commit the accused for trial by the High Court, and either admit him to bail or commit him to prison for safe keeping;' (emphasis added) 

[7.12] Right To Legal Representation 

[7.12.1] Constitution 

Section 10(2) of the Constitution states (in part): 

'Every person who is charged with a criminal offence – 

[…] 

(c)                shall be given adequate time and facilities for the preparation of his defence; 

(d)               shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice; 

(e)                shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.' (emphasis added) 

[7.12.2] General Principles 

In R v Lemsatef [1977] 1 WLR 812 Lawton LJ, delivering the judgment of the Court, stated at page 815: 

'It is one of the principles of practice that if a man in custody wants to consult a solicitor he can do so. He is entitled to do at an early stage of the investigation. The only qualification is that he cannot delay the investigation by asking to see a solicitor if the effect of so – asking would be – and I use the words of the rules – to cause "unreasonable delay or hindrance … to the process of investigation or the administration of justice.' 

Section 178 of the Criminal Procedure Code (Ch. 7) states: 

'Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this code in any such court, may be defended by an advocate.' 

A defendant is entitled to be represented by the lawyer of his/her choice, subject to that person's availability, the availability of witnesses and the interests of justice generally, see R v De Oliveira [1997] CrimLR 600.

See also: R v Harris [1985] CrimLR 244 & R v Kingston (1948) 32 CrAppR 183. 

The duty of a legal representative to his/her client, ie., the defendant, was restated by the Chairman of the Bar Council at (1976) 62 CrAppR 193 as follows: 

'It is the duty of counsel when defending an accused on a criminal charge to present to the court, fearlessly and without regard to his personal interests, the defence of that accused. It is not his function to determine the truth or falsity of that defence, nor should he permit his personal opinion of that defence to influence his conduct of it. No counsel may refuse to defend because of his opinion of the character of the accused nor of the crime charged. That is a cardinal rule of the Bar […] Counsel also has a duty to the court and to the public. This duty includes the clear presentation of the issues and the avoidance of waste of time, repetition and prolixity. In the conduct of every case counsel must be mindful of this public responsibility.' 

Furthermore, it is the duty of defence counsel 'to adduce any evidence which is relevant to his own case and assists his client, whether or not it prejudices anyone else', see R v Miller & others (1952) 36 CrAppR 169 [[1952] 2 AllER 667] at page 171. 

[7.12.3] Legal Professional Privilege 

In Bullivant v Attorney – General (Vict.) [1901] AC 196 Earl of Halsbury LC referred to the concept of 'legal professional privilege' when his Lordship stated at pages 200 – 201:

'[F]or the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production.' (emphasis added) 

In R v Derby Magistrates' Court, Ex parte B & Same v Same, Ex parte Same [1996] 1 CrAppR 385 Lord Taylor, with whom the other Lordships of the House of Lords concurred, commented at page 401:

'The principle […] is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back hold the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.' 

In AM & S Europe Ltd v Commissioner of the European Communities [1983] QB 878 Advocate General Warner stated at page 913: 

'Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.' 

However, as held by the High Court of Australia in Grant v Downes (1976) 135 CLR 674: 

Legal professional privilege is confined to documents which are brought into existence for the sole purpose of their being submitted to legal advisers for advice or use in legal proceedings. A document which would in any event have been brought into existence for another purpose is not privileged from production after discovery on that ground. 

Therefore, in determining whether 'legal professional privilege' exists the purpose for which the document was brought into existence and not the purpose for which it was given to the lawyer is the fundamental consideration. Mere delivery of the documents to a lawyer is not sufficient to confer immunity where the documents are not of a privileged nature. 

However, 'legal professional privilege' does not apply to communication as regards the commission of possible future offences, see R v Central Criminal Court, Ex parte Francis & Francis (a Firm) [1988] 3 WLR 989; [1989] AC 346; (1989) 88 CrAppR 213; [1989] CrimLR 444 & R v Smith (1915) 11 CrAppR 229 at page 238. 

As regards waiving the privilege, refer to: Burnall v British Transport Commission [1956] 1 QB 187 & Carter v The Managing Partner, Northmore, Hale, Davy & Leake & others [1995] 183 CLR 121. 

See also: R v Smith (1915) 11 CrAppR 229 at page 238; R v King (1983) 77 CrAppR 1; [1983] 1 AllER 929; [1983] 1 WLR 411; [1983] CrimLR 326; R v Ataou (1988) 87 CrAppR 210; R v Justice of the Peace for Peterborough, Ex parte Hicks & others [1978] 1 AllER 225; Baker v Campbell (1983) 153 CLR 52; Trade Practices Commission v Sterling (1978) 36 FLR 244; R v Braham & Mason [1976] VR 547; Aydin v Australian Iron & Steal Pty Ltd [1984] 3 NSWLR 684; Packer v Deputy Commissioner of Taxation (Qld) (1984) 55 ALR 242 & Nickmar Pty Ltd v Preservative Standia Insurance Ltd [1985] 3 NSWLR 44. 

As regards the execution of a 'Search Warrant' on the business premises of a lawyer refer to page 267. 

[7.13] Right To Silence 

In R v Sang (1979) 69 CrAppR 282; [1980] AC 402 [[1979] 3 WLR 263; [1979] 2 AllER 1222; [1979] CrimLR 282] Lord Scarman stated at pages 308 & 455 respectively: 

'[The "right to silence" means] '"No man is to be compelled to incriminate himself; nemo tenetur se ipsum prodere."' [words in brackets added] 

See also: R v Brophy (1981) 73 CrAppR 287, per Lord Fraser at page 291. 

In Kim Kae Jun & the Crew of the Vessel No. 1 New Star v The Director of Public Prosecutions & the Commissioner of Police (Unrep. Civil Case No. 423 of 1999) Palmer J stated at page 4: 

'The right to remain silent is a constitutional right to which everyone in this country is entitled, citizens or non – citizens alike. Section 3 of the Constitution guarantees the protection of the right to life, liberty, security of the person and the protection of the law. Although not specifically mentioned, that provision, in its broad application, must accord a right to silence to an accused, detained person or a suspected person who is under investigation. Once such person exercised his or her constitutional right to remain silent he or she cannot be compelled to give his statement to anyone unless otherwise ordered by the Court. Thus to obtain a statement from an accused person or from the others (such as the crew members in this case) who may be "suspected persons" for the purpose of interrogation in respect of the indicted person, after exercising their right to silence would be a breach of the Constitution. The relief granted by the Court for any breach of the Constitution is available against both the State and individual in this country.' (emphasis added) 

In David Kio v R (Unrep. Criminal Appeal Case No. 11 of 1977) Davis CJ stated at page 4: 

'Every case must be tried only on the evidence in that case, and in every case the accused person must be treated as innocent until the contrary is proved on the evidence. It is quite wrong for a Magistrate to base his finding of the accused's guilt on his own previous knowledge of the accused. The burden of proving the accused's guilt is always on the prosecution whose duty it is to satisfy the court of the accused's guilt. It is not for the accused to prove his innocence and in every case, no matter what his record, the accused must be considered by the court as innocent until he has been proved guilty.' (emphasis added) 

In Robinson v R [No. 2] (1991) 65 ALJR 644 the High Court of Australia held at page 646: 

'If [the presumption of innocence] is have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person.' (emphasis added) [words in brackets added] 

The law relating to a 'Right To Silence' is also examined commencing on page 71. 

[7.14] Right To Testify 

[7.14.1] General Principles 

Section 10(7) of the Constitution states: 

'No person who is tried for a criminal offence shall be compelled to give evidence at the trial.' (emphasis added) 

Section 198(1) of the Criminal Procedure Code (Ch. 7) states: 

'At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross – examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any),' (emphasis added) 

The law relating to a 'Submission Of No Case To Answer' is examined commencing on page 372. 

Section 141 of the Criminal Procedure Code (Ch. 7) states (in part): 

'Every person charged with an offence […] shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: 

Provided – 

(a)                a person so charged shall not be called as a witness in pursuance of this section except upon his own application; 

(b)               the failure of any person charged with an offence, […], to give evidence shall not be made the subject of any comment by the prosecution; 

(c)                […] 

(d)               […] 

(e)                a person charged and being a witness in pursuance of this section may be asked any question in cross – examination notwithstanding that it would tend to incriminate him as to the offence charged; 

(f) […] 

(g) every person called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses have given their evidence; and 

(h) nothing in this section shall affect the provisions of section 215 ['Provisions as to taking statement or evidence of accused person in a preliminary investigation'] or any right of the person charged to make a statement without being sworn. [see section 198(1) of the Criminal Procedure Code (Ch. 7)]' (emphasis added) [words in brackets added] 

Section 142 of the Criminal Procedure Code (Ch. 7) states: 

'Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.' (emphasis added) 

In R v Martinez – Tobon [1994] 2 AllER 90; (1994) 98 CrAppR 375 Lord Taylor of Gosforth CJ, delivering the judgment of the Court of Appeal, held at pages 98 and 382 – 383 respectively: 

'[W]e consider for the present that the following principles apply where a defendant does not testify. 

(1) The judge should give the jury a direction along the lines of the Judicial Studies Board specimen direction based on Bathurst. [(1968) 52 CrAppR 251; [1968] 2 QB 99; [1968] 1 AllER 1175; [1968] 2 WLR 1092] 

["The defendant does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the defendant to undermine, contradict, or explain the evidence put before you by the prosecution."] 

(2) The essentials of that direction are that the defendant is under no obligation to testify and the jury should not assume he is guilty because he has not given evidence. 

(3) Provided those essentials are complied with, the judge may think it appropriate to make a stronger comment where the defence case involves alleged facts which (a) are at variance with prosecution evidence or additional to it and exculpatory, and (b) must, if true, be within the knowledge of the defendant. 

[…].' (emphasis added) 

Whilst a prosecutor is not permitted to make any comment regarding the failure of a defendant to give evidence, in compliance with section 141(b) of the Criminal Procedure Code (Ch. 7), the Court may take into account the principles enunciated in R v Martinez – Tobon (supra). 

See also: R v Anderson (M.) [1988] QB 678; [1988] 2 AllER 549; (1988) 87 CrAppR 349; Maxwell v Director of Public Prosecutions (1934) 24 CrAppR 152; [1935] AC 309; Jones v Director of Public Prosecutions [1962] 1 AllER 569; (1962) 46 CrAppR 129; [1962] 2 WLR 575; [1962] AC 635; Weissensteiner v R (1993) 178 CLR 217; (1993) 68 ALJR 23 & Kanaveilomani (1994) 72 ACrimR 492. 

[7.14.2] Unsworn Statements 

Prosecutors must be mindful of the law if a defendant fails to give sworn evidence. An unsworn statement is a statement made by a defendant in court, but whilst not in the witness box: The State v Nagiri Topoma [1980] PNGLR 18, (Kapi J; sitting alone). 

Considering that the making of an 'unsworn statement' is not the 'giving of evidence' and therefore, a prosecutor is not permitted to make any comment regarding the failure of the defendant to 'give evidence', in compliance with section 141(b) of the Criminal Procedure Code (Ch. 7). 

In R v Ulel [1973] PNGLR 254 Clarkson J, sitting alone, held: 

(1) That when an accused makes an unsworn statement, it should be taken as prima facie a possible version of facts, and should be considered with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by the evidence; and 

(2) A defence may be raised when a defendant makes an unsworn statement. 

In Paulus Pawa v The State [1981] PNGLR 498 the Supreme Court held at page 504: 

'1. The failure of an accused person to testify is not an admission of guilt and no inference of guilt may be drawn from such failure to testify; 

2. Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters; 

3. Failure to testify only becomes a relevant consideration when the Crown has established a prima facie case; 

4. The weight to be attached to failure to testify depends on the circumstances of the case.  

Significant circumstances include: 

(a) whether the truth is not easily ascertainable by the Crown but probably well known to the accused; 

(b) whether the evidence implicating the accused is direct or circumstantial; 

(c) whether the accused is legally represented; 

(d) whether the accused has before trial given an explanation which the Crown has adduced in evidence.' 

See also: The State v Michael Rave, James Maien & Philip Baule [1993] PNGLR 85 at page 86. 

[7.15] Right To A Copy Of A Judgment 

Section 10(3) of the Constitution states: 

'When a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.' 

Whilst a defendant is entitled to a copy of the judgment upon application by virtue of section 153 of the Criminal Procedure Code (Ch. 7), 

'[n]o person shall be entitled, as of right, at any time or for any purpose, to inspection of the record of evidence given in any case before any Magistrate's Court, or to a copy of the notes of such Court, save as may be expressly provided by any Rules of Court, or, in the absence of such Rules, unless the leave of a Magistrate to make such inspection or receive such copy, has been first had and obtained', see section 68 of the Magistrates' Courts Act (Ch. 20). 

Refer also to the law relating to 'Judgments' which is examined commencing on page 332.