The Grey Book

8/18/2019 The Grey Book

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INTRODUCTION TO CRIMINAL LAW

Table Of Contents

Page

[1.0] Introduction 2 [1.1] Constitution 4 [1.2] Statute Law 6 [1.3] Judicial Precedent & Common Law 7 [1.4] Customary Law 11


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[1.0] Introduction

Prior to independence on 7 th July 1978 the statute law that applied in Solomon Islands came fromthe United Kingdom. Upon independence the Constitution of Solomon Islands became effective

and the legality of statute law which applied in Solomon Islands prior to that date was not affectedprovided it was not inconsistent with the Constitution , see sections 4 and 5 of The SolomonIslands Independence Order 1978 and Shell Company (Pacific Islands) Limited v KoreanEnterprises Limited and the Premier of Guadalcanal (Representing the Guadalcanal ProvincialExecutive and Assembly) (Unrep. Civil Case No. 323 of 2000; Muria CJ; at page 38).

Section 75 of the Constitution provides that the Parliament of Solomon Islands may enact statutelaw that should apply in Solomon Islands. That section states:

‗(1) Parliament shall make provision for the application of laws, including customary laws.

(2) In making provision under this section, Parliament shall have particular regard to thecustoms, values and aspirations of the people of Solomon Islands.‘

At this time the Parliament of Solomon Islands has not enacted such law.

Section 76 of the Constitution states:

‗Until Parliament ma kes other provision under the preceding section, the provisions ofSchedule 3 to this Constitution shall have effect for the purpose of determining the operationin Solomon Islands –

(a) of certain Acts of the Parliament of the United Kingdom mentioned therein;

(b) of the principles and rules of the common law and equity;

(c) of customary law; and

(d) of the legal doctrine of judicial precedent.‘

Therefore, the sources of criminal law in Solomon Islands currently are as follows:

the Constitution ;

the Acts of the Parliament of Solomon Islands;

Acts of the Parliament of the United Kingdom of general application which were in forcein the United Kingdom on 1 st January 1961, as applied under Schedule 3(1) of theConstitution ;

The ‗Common Law ‘, as applied under Schedule 3(2) of the Constitution ; and

The ‗Customary Law ‘, as applied under Schedule 3(3) of the Constitution .

Considering that Solomon Islands was a British colony it inherited an adversarial legal system. Interms of the criminal law the prosecution and defence present their cases to a court for adetermination.


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In R v Kwatefena [1983] SILR 106 Daly CJ commented at page 107:

‗Courts in Solomon Islands should always bear in mind that we work in an adversary system.This requires that the parties should be permitted to develop the case as they wish with the

court intervening only when it is clear the case is taking a wrong turning or is becomingobscure. Sometimes when one side is professionally represented and the other is not, acourt may indicate issues or points which it considers important to assist the party at adisadvantage. However it is wrong for the court to give the impression that it is doing thework of one side .‘ (emphasis added)

In Director of Public Prosecutions v Haikiu [1984] SILR 155 the Court of Appeal held at pages159 – 160:

‗Mr Radclyffe‘s contention was simply the magistrate by his questions ―had given theimpression that he was assisting the prosecution‖. He relied on R v Kwatefena [1983] SILR106.

[…] In the course of his judgment Daly CJ said, ―it is wrong for the Court to give theimpression that it is doing the work of one side.‖ That is undoubtedly true if the questioningsuggests that the judge is satisfied that the accused is guilty; or that it shows , as LordDenning MR said in Jones v National Council Board [1957] 2 QB 55, that the judge has“dropped the mantle of the judge and assumed the role of an advocate .‖ Further, a judgemust not cross examine an accused when giving his evidence in chief at such length or withsuch severity that he is assisting the prosecution.

These references to instances of interference make it clear something far removed fromquestion to elucidate the facts must be revealed. […] Mr. Radclyffe submitte d that questionsput by a Magistrate should be ―neutral‖ with a view to ―clarifying rather than developingpoints‖. The word ―neutral‖ was used by Daly CJ in Kwatefena (supra) at p.107 in thiscontext, ―such questions should usually be couched in neutral term‖. If that means ―withouttaking sides‖, as previously explained, we agree, but it needs to be made clear that a judge isnot expected to refrain from putting a question because the answer may favour one side orthe other. Answers to questions so put cannot be relied on as showing that a judge ormagistrate was helping one side. ‘ (emphasis added)

In R v Niger Pitisopa (Unrep. Criminal Appeal Case No. 120 of 1999) Kabui J commented atpage 10:

‗I think the fact is that in our present criminal Justi ce system, the Court is not supposed toconduct a criminal trial on behalf [of] the Crown Prosecutor. Its duty is to be impartial, hearthe evidence on both sides, weigh the evidence and decide the case on its facts. It does notdescend into the arena of conflict between the Crown Prosecutor and Defence Counsel.‘[word in brackets added]

See also: Loumia v Director of Public Prosecutions [1985 – 86] SILR 158, per Kapi JA at page171.


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In Director of Public Prosecutions v Sanau & Tanabore v Director of Public Prosecutions [1987]SILR 1 the Court of Appeal held at page 3:

‗[I]t is clear that by virtue of s. 2 the Constitution is the supreme law of Solomon Islands and

all other laws must be read as subject to it.‘ In William Douglas McCluskey v The Attorney – General & others (Unrep. Civil Case No. 243 of1993) Palmer J made the following comments at page 4:

‗The Constitution is the supreme law of the country. It belongs to the people of SolomonIslands who have established a sovereign democratic state of Solomon Islands. Thatsovereign democratic state is to be ruled by the Constitution and all other laws of applicationin the country provided that other law is not inconsistent with the Constitution.

The Supreme law of this country by its set up is unique to Solomon Islands. Its applicationtherefore is restricted to the sovereign democratic state of Solomon Islands. All other laws inforce in Solomon Islands therefore must primarily be read as only applying to the sovereigndemocratic State of Solomon Islands, unless it expressly states otherwise or by necessaryimplication.‘ (emphasis added)

See also: Edward Huniehu v Attorney – General & Speaker of National Parliament (Unrep. Civil Appeal Case No. 5 of 1996; per Kapi P (Ag); at pages 2 – 3) & Beti, Bisili & Paia (AsRepresentatives of the Voramali Tribe) v Allardyce Lumber Co Ltd & Attorney – General & Bisili,Roni, Sakiri, Hiele, Sasae, Poza, Hite, Daga & Pato (Unrep. Civil Case No. 45 of 1992; Muria CJ;at page 7).

Section 3 of the Constitution provides:

‗Whereas every person in Solomon Islands is entitled to the fundamental rights and freedomsof 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 thepublic 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 propertywithout compensation,

the provisions of this Chapter [titled ‗ Protection of Fundamental Rights and Freedoms of theIndividual ‘] shall have effect for the purpose of affording protection to those rights andfreedoms 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.‘(emphasis added)

A number of the ‗ Fundamental Rights and Freedoms of the Individual ‘ which are protected underthe Constitution are examined in the Chapt er titled ‗Fundamental Rights & Freedoms ‘commencing on page 144 .


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[1.2] Statute Law

In Solomon Islands there are two types of Acts of Parliament which are applied by the Courts:

1. Acts of the Parl iament of Solom on Islands.

By virtue of section 59 of the Constitution , the Parliament of Solomon Islands has thepower to make laws for ‗the peace, order and good governance of Solomon Islands‘.

The Revision of Laws Act (Ch. 93) is ‗An Act to make provision for the preparationand publication of a Revised Edition of an Enactment‘. In 1996 the laws of SolomonIslands were revised and are current as at 1 March 1996. Information as regards‗Amendments‘ to the Acts of the Parliament of Solomon Islands can be obtained fromthe Office of the Attorney – General.

2 . Some Acts o f the Parl i ament o f the Uni ted Kingdom .

Schedule 3 to the Constitution states (in part):‗1. Subject to this Constitution and to any Act of Parliament, the Acts of the

Parliament of the United Kingdom of general application and in force, on 1 st January 1961 shall have effect as part of the law of Solomon Islands, with suchchanges to names, titles, offices, persons and institutions, and as to such otherformal and non – substantive matters, as may be necessary to facilitate theirapplication to the circumstances of Solomon Islands from time to time.‘(emphasis added)

In R v Ngena [1983] SILR 1 Daly CJ examined the application of the term ‗ Acts of generalapplication ‘ and held at page 6:

‗[H]aving regard to the s tatute under consideration as a whole, is it one that regulates conductor conditions which exist amongst humanity generally and in a way applicable to humanitygenerally or is it restricted to regulating conduct or conditions peculiar to persons, activities orinstitutions in the United Kingdom or in a way applicable only to persons activities orinstitutions in the United Kingdom? If the former the statute is of general application .‘(emphasis added)

In William Douglas McCluskey v The Attorney – General & others (Unrep. Civil Case No. 243 of1993) Palmer J stated at page 3:

‗[B]y Schedule 3 of the Constitution, the laws that are in force in the United Kingdom on 1 st January 1961 will have effect as part of the laws of Solomon Islands save where it isinconsistent with the Constitution or any Act of Parliament.‘

Those Acts as regards the ‗ criminal jurisdiction ‘ include :

[i] the Criminal Procedure Act 1898 (UK), sections 3, 4 & 5, see R v Henry Bata & Ken Arasi(Unrep. Criminal Appeal No. 1 of 1998; Co urt of Appeal; at page 3); ‗ Hostile Witnesses ‘;

[ii] the Bankers‟ Book Evidence Act 1879 (UK), see R v John Mark Tau & 16 others (Unrep.Criminal Case No. 58 of 1993; Palmer J; at page 3);


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[iii] the Criminal Procedure Act 1865 (UK), section 8, ‗ Comparison of a Disputed Writing ‘;

[iv] the Criminal Procedure Act 1865 (UK), section 6, ‗ Proof of Previous Convictions ‘; and

[v] the Evidence Act 1851 (UK), sections 1 & 14, ‗ Admissibility of Copies of Books &Documents of a Public Nature ‘.

‗Courts are bound by the law as prescribed by Parliament and only Parliament can change suchlaw. That is not to say that Courts cannot recommend changes to the law‘, see Lifuasi vDanitofea (Unrep. Civil Case No. 160 of 1990; Ward CJ; at page 4).

Whilst a Court can recommend changes to statute law in Solomon Islands it can also rule thatspecific statute law is void if it is inconsistent with the Constitution . See for example the case of Rv Noel Bowie [1988 – 89] SILR 113 in which Ward CJ held that the word ‗male‘ in section 155 ofthe Penal Code (Ch. 26) should be severed in order to ensure that that section was notinconsistent with section 15 of the Constitution .

The law relating to the ‗ Statutory Interpretation ‘ is examined commencing on page 30 .

[1.3] Judicial Precedent & Common Law

Schedule 3 to the Constitution provides (in part):

‗4. (2) Subject to the preceding provisions of this Schedule or any provision in that regardmade by Parliament , the operation in Solomon Islands of the doctrine of judicial precedentshall be regulated by practice directions given by the Chief Justice. ‘ (emphasis added)

On 4 June 1981 ‗ Practice Direction No. 1/81 ‘ was issued by Daly CJ as follows:

‗Judicial Precedent in Solomon Islands shall opera te in the following manner:-

1. All courts other than the Court of Appeal shall regard decisions of the Court of Appeal asof binding authority.

2. The High Court shall regard earlier decisions of itself as persuasive authority.

3. A Magistrates‘ Court shall reg ard decisions of the High Court, whether on review ofproceedings or otherwise, as binding authority.

4. A Magistrates‘ Court shall regard decisions of another Magistrates‘ Court as persuasiveauthority.‘

A ‗ judicial precedent ‘ is simply a legal principle w hich has been decided by an appropriate courtthat is ‗binding ‘ on other courts in the same hierarchy.

In Practice Statement (Judicial Precedent) (1981) 73 CrAppR 266 Lord Gardiner LC stated (inpart):


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‗Their Lordships [of the House of Lords] regard the use of precedent as an indispensablefoundation upon which to decide what is the law and its application to individual cases. Itprovides at least some degree of certainty upon which individuals can rely in the conduct oftheir affairs, as well as a basis for orderly development of legal rules.‘ [words in brackets

added]By virtue of the application of the ‗ doctrine of stare decisis ‘ also known as the ‗ doctrine of

precedent ‘ to the courts in Solomon Islands exercising criminal jurisdiction, the Magistrates‘ Courtis bound by the decisions of the High Court and the Magistrates‘ Court and the High Court isbound by the decisions of the Court of Appeal. That doctrine operates to secure certainty in thelaw. Otherwise, the Magistrates‘ Court and the High Court could continually make decisions,irrespective of any legal precedent set.

In R v Sethuel Kelly & Gordon Darcy (Unrep. Criminal Case No. 2 of 1996) Lungole - Awich Jcommented at page 4:

‗There is a principle of law in Solomon Islands, that a point of law is decided in a case beforethe superior courts, binds the lower courts when the lower courts have to consider that pointof law in cases before them. That is the principle of stare decisis.‘

However, those courts are only bound to follow the ‗ ratio decidendi ‘ of the respective judgments.The ‗ratio decidendi ‘ is defined as ‗the reason for deciding, [a]ny indispensable factor in theprocess of reasoning leading to a judicial decision‘ ( Butterworths Concise Australian LegalDictionary , 2nd Edition, page 365). It may also be simply defined as ‗the rule of law on which thedecision is based‘.

When the reasons for a court‘s decision are contained in multiple judgments, it may be that noclear ‗ratio decidendi ‘ can b e discerned. In such a case, lower courts are only bound to apply theoutcome of the case when faced with a fact situation not reasonably distinguishable from thecase, see Re Tyler, Ex parte Foley (1994) 181 CLR 18; (1994) 121 ALR 153 and not thereasoning of any of the judges who constituted the majority, see Trade Practices Commission v

Abbco Ice Works Pty Ltd (1994) 52 FCR 96; (1994) 123 ALR 503.

During the course of a judgment a Court may make judicial comments which do not form part ofthe legal rea soning in the case. Such comments are referred to as ‗ obiter dictum ‘ and are not binding on other courts.

By virtue of Schedule 3 to the Constitution ‗no court of Solomon Islands shall be bound by anydecision of a foreign court given on or after 7 th Jul y 1978‘. However, such judgments may beconsidered in order to develop the common law in Solomon Islands.

In Price Waterhouse & others v Reef Pacific Trading Limited & another (Unrep. Civil Appeal No.5 of 1995) the Court of Appeal stated at page 10:

‗In view of Sch. 3.2 (4) of the Constitution of the Solomon Islands, the decision of the HighCourt of Australia is not binding. This Court being the highest court in the land is free todevelop the principles of c ommon law in the manner it deems just having regard to thecircumstances of Solomon Islands. In this regard the decisions of the High Court of Australiaor any other country after 7 July 1978 are not binding. They can only have persuasive value .‘(emphasis added)

When courts make judicial prec edents, ‗ common law ‘ also referred to as ‗ judge – made law ‘ or‗case law ‘ is developed. The ‗ common law ‘:


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outlines the view of the courts regarding the interpretation of the Constitution , see section84 of the Constitution in that regard, and statute law;

outlines the view of the courts regarding the interpretation of statute law; and

covers those matters which are not dealt with by statute law.

The law relating to ‗ Statutory Interpretation ‘ is examined commencing on page 30 .

The term ‗ Common Law ‘ is defined in section 16 of the Interpretation & General Provisions Act(Ch. 85) as meaning:

‗so much of the common law, including the doctrines of equity of England as has effect for thetime being in Solomon Islands‘.

‗Common law‘ therefore fills in the gaps left by the statute law. In R v Brown [1995] 1 CrAppR191 the Court of Appeal made the following observation at page 196:

‗That the courts do and must make law in the gaps left by Parliament is nowadays acceptedas an u ncontroversial reality.‘

The decision in R v Brown (supra ) was affirmed by the House of Lords in R v Brown (Winston) [1998] AC 367; [1997] 3 WLR 447; [1997] 3 AllER 769.

In R v Hunt (1987) 84 CrAppR 163; [1987] AC 352; [1987] 1 AllER 1; [1987] CrimLR 263 LordGriffiths, with whom Lord Keith of Kinkel & Lord Mackay of Clashfern concurred, stated at page173:

‗[T]he common law adapts itself and evolves to meet the changing patterns and needs ofsociety; it is not static.‘

Such law is either reported or unreported. If it is reported it is contained within a law report. Thelaw reports of Solomon Islands are only for the years 1980 to 1990 inclusive. Such reports arecited as ‗[name of case] [year/s] SILR [page]‘.

Some of the ‗law reports‘ from England, Australia, Papua New Guinea and New Zealand, referredto in this book are:

AC Appeal Cases ACrimR Australian Criminal Reports ALJR Australian Law Journal Reports AllER All England Reports ALR Australian Law ReportsCLR Commonwealth Law ReportsCrAppR Criminal Appeal ReportsCrimLR Criminal Law ReviewER England ReportsFCR Federal Court ReportsFLR Federal Law ReportsKB Kings BenchLT Law Times, New SeriesMVR Motor Vehicle ReportsNSWLR New South Wales Law Reports


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NTR Northern Territory ReportsNZLR New Zealand Law ReportsP&NGLR Papau & New Guinea Law ReportsPNGLR Papua New Guinea Law Reports

QB Queens BenchQBD Queens Bench DivisionQdR Queensland ReportsQL Queensland LawyerQLR Queensland Lawyer ReportsQWN Queensland Weekly NotesRTR Road Traffic ReportsSASR South Australian State ReportsSR(NSW) State Reports New South WalesStRQd State Reports QueenslandTasLR Tasmanian Law ReportsTasSR Tasmanian State ReportsVLR Victorian Law ReportsVR Victorian ReportsWAR Western Australian ReportsWN(NSW) Weekly Notes New South WalesWLR Weekly Law Reports

However, in The Prime Minister v The Attorney – General (Unrep. Civil Case No. 150 of 1998)Muria CJ commented at pages 8 – 9:

‗I must […] reiterate the point made by this court in Jane Tozaka –v- Hata EnterprisesCC198/96 (Judgment given on 3 June, 1997). This court stressed the need to build up ourown case law in this jurisdiction. So that where a legal principle had been firmly establishedin cases decided by our Courts, we must build upon them instead of continuing to rely onoutside authorities all the time. This Court said in that case:

―I note that both counsel in this case had appeared in some of those cases mentioned andyet either forgot or ignored to cite those authorities. We must develop and build up our caselaw in our jurisdiction instead of borrowing authorities from foreign jurisdictions all the time.

Once a legal principle had been firmly established in our jurisdiction it serves no point to keepreferring to the authorities from foreign jurisdictions. But in order to do this, we in the Courtsand counsel appearing before those courts must strive to build up our own body of case law .‖

We must all strive to achieve this.‘ (emphasis added)

Muria CJ also made the same comments in R v Nelson Keavisi, Julius Palmer, Patrick MareKilatu, Keto Hebala & Willie Zomoro (Unrep. Criminal Case No. 20 of 1995) at page 1.

Schedule 3 to the Constitution provides (in part):

‗2. (1) Subject to this paragraph, the principles and rules of the common law […] shall haveeffect as part of the law of Solomon Islands, save in so far as:

(a) they are inconsistent with this Constitution or any Act of Parliament;

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands fromtime to time; or


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(c) in their application to any particular matter, they are inconsistent with customary lawapplying in respect of that matter.

(2) The principles and rules of common law […] shall so have effect notwithstanding any

revision of them by any Act of the Parliament of the United Kingdom which does not haveeffect as part of the law of Solomon Islands.‘ (emphasis added)

The court system in Solomon Islands is examined commencing on page 14.

[1.4] Customary Law

Schedule 3 to the Constitution provides:

‗3. (1) Subjec t to this paragraph, customary law shall have effect as part of the law ofSolomon Islands.

(2) The preceding subparagraph shall not apply in respect of any customary law that is, andto the extent that it is, inconsistent with this Constitution or an Act of Parliament.

(3) An Act of Parliament may:-

(a) provide for the proof and pleading of c ustomary law for any purpose;

(b) regulate the manner in which or the purposes for which customary law may berecognized; and

(c) provide for the resolution of conflicts of customary law .‘ (emphasis added)

In Remesis Pusi v James Leni & others (Unrep. Civil Case No. 218 of 1995) Muria CJ stated atpage 8:

‗The Constitution itself recognizes customary law as part of the law of Solomon Islands andits authority therefore cannot be disregarded. It has evolved from time immortal and itswisdom has stood the test of time. It is fallacy to view a constitutional principle or a statutoryprinciple contained in customary law. It is the circumstances in which the principles areapplie d that vary and one cannot be readily substituted for the other.‘

In Sukutaona v Houanihou [1982] SILR 12 Daly CJ stated at page 13:

‗It is quite right to say that custom law is now part of the law of Solomon Islands and courtsshould strive to apply such law in cases where it is applicable. However it must be done on aproper basis of evidence adduced to show that custom and its applicability to thecircumstances. This evidence should be given by unbiased persons knowledgeable incustom law or extracte d from authentic works on custom.‘

However, in Loumia v Director of Public Prosecutions [1985 – 86] SILR 158 Connolly AJ, withwhom Wood CJ concurred, stated at pages 163 - 164:

‗Clearly custom which calls for action which is a criminal offence by the st atute law ofSolomon Islands is inconsistent with statute. Thus cl. 3(2) of Schedule 3 to the Constitutionhas the result that no such custom can have effect as part of the law of Solomon Islands.‘


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See also: Michael Buruka v R (Unrep. Criminal Appeal Case No. 31 of 1991; Muria J; at page 1)& Veronica Abe‟e Edwards v Carol Edwards (Unrep. Civil Case No. 312 of 1995; Palmer J).


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CRIMINAL JURISDICTION OF THE COURTS

Table Of Contents

Page

[2.0] Introduction 14 [2.1] Court Of Appeal 15 [2.2] High Court

[2.2.1] Original Jurisdiction 16[2.2.2] Appellate Jurisdiction 17[2.2.3] Revisional Jurisdiction 19

[2.3] M agistrates’ Court [2.3.1] Introduction 19[2.3.2] Principal Magistrates‘ Court 21[2.3.3] Magistrates‘ Courts Of The First & Second Class 21[2.3.4] Magistrates‘ Court (Increase In Criminal Jurisdiction)

Orders 22[2.3.5] Territorial Limits 26

[2.4] Local Court 28 [2.5] Juvenile Court 28


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[2.0] Introduction

The court hierarchy in Solomon Islands is as follows:

A court exercising:

‗original jurisdiction‟ is able to hear trials; and

‗appellate jurisdiction‟ is able to hear appeals.

In this chapter, the ‗ criminal jurisdiction ‘ of those courts will be examined.

By virtue of the applicatio n of the ‗doctrine of stare decisis ‘, also know as the ‗ doctrine of precedent ‘, to the courts in Solomon Islands exercising criminal jurisdiction, the Magistrates‘Court is bound by the decisions of the High Court and the Magistrates‘ Court and the High Co urtis bound by the decisions of the Court of Appeal. That doctrine operates to secure certainty inthe law. Otherwise, the Magistrates‘ Court and the High Court could continually make decisions,irrespective of any legal precedent set.

In R v Sethuel Kelly & Gordon Darcy (Unrep. Criminal Case No. 2 of 1996) Lungole - Awich Jstated at page 4:

‗There is a principle of law in Solomon Islands, that a point of law is decided in a case beforethe superior courts, binds the lower courts when the lower courts have to consider that pointof law in cases before them. That is the principle of stare decisis.‘

Refer also to the section which examines the law relating to ‗ Judicial Precedent & Common Law ‘commencing on page 7.

Court of Appeal[‗Appellate‘ Jurisdiction Only]

Magistrates’ Court [‗Appellate‘ & ‗Original‘ Jurisdiction]

High Court[‗Appellate‘, ‗Original‘ & ‗Revisional‘ Jurisdiction]

Local Court[‗Original‘ Jurisdiction Only]


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[2.1] Court Of Appeal

The ‗Court of Appeal ‘ was established by virtue of section 85 of the Constitution which states (inpart):

‗(1) There shall be a Court of Appeal for Solomon Islands which shall have such jurisdictionand powers to hear and determine appeals in […] criminal matters as may be conferredon it by this Constitution or by Parliament.

(2) The judges of the Court of Appeal shall be –

(a) a President and such number of other Justices of Appeal, if any, as may beprescribed by Parliament; and

(b) the Chief Justice and the puisne judges of the High Court, who shall be judges of theCourt ex officio .‘ (emphasis added)

See also: sections 86 to 89 of the Constitution .Sections 20 to 22 of the Court of Appeal Act (Ch. 6) outlines in what circumstances theprosecution or a person convicted may appeal a decision of the High Court.

Section 20 states:

‗ A person convicted on a trial held before the High Court of Solomon Islands may appealunder this Part of this Act [Part IV -- ‗ Appeals In Criminal Cases ‘] to the Court of Appeal –

(a) against his conviction on any ground of appeal which involves a question of law alone ;

(b) with the leave of the Court of Appeal or upon the certificate of the judge who tried himthat it is a fit case for appeal against his conviction on any ground of appeal whichinvolves a question of fact alone or a question of mixed law and fact or any other groundwhich appears to the Court to be a sufficient ground of appeal ; and

(c) with the leave of the Court of Appeal against the sentence passed on his convictionunless the sentence is one fixed by law .‘ (emphasis added) [words in brackets added]

An example of a sentence fixed by law is that which must be imposed for the offence of ‗Murder‘,see section 200 of the Penal Code (Ch. 26).

The law relating to:

‗Homicidal Offences ‘ is examined commencing on page 610 ; and

‗Sentencing ‘ is examined commencing on page 918 .

Section 21(1) states:

‗Subject to the provisions of this section, the Director of Public Prosecutions may appealunder this Part of this Act to the Court of Appeal where –


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(a) a person is tried before the High Court in the first instance and acquitted, (whether inrespect of the whole or part of the indictment) on any ground of appeal which involves aquestion of law only ; or

(b) in the opinion of the Director of Public Prosecutions the sentence imposed by the HighCourt is manifestly inadequate .‘ (emphasis added)

Section 22 states (in part):

‗(1) Any party to an appeal from a Magistrates‟ Court to the High Court may appeal, underthis Part of this Act, against the decision of the High Court in such appellate jurisdiction tothe Court of Appeal on any ground of appeal which involves a question of law only (notincluding severity of sentence) :

Provided that no appeal shall lie against the confirmation by the High Court of a verdict ofacquittal by a Magistrate‘s Court.

(2) For the purposes of this section, a decision of the High Court in the exercise of itsrevisional jurisdiction or on a case stated, under the provisions of the Criminal ProcedureCode, shall be deemed to be a decision of the High Court in such appellate jurisdiction asaforesaid.‘ (emphasis added)

[2.2] High Court

[2.2.1] Original Jurisdiction

The ‗High Court ‘ was established by virtue of section 77 of the Constitution which states (in part):

‗(1) There shall be a High Court for Solomon Islands which shall have unlimited original jurisdiction to hear and determine any […] criminal proceedings under any law and suchother jurisdiction and powers as may be conferred on it by this Constitution or byParliament.

(2) The judges of the High Court shall be the Chief Justice and such number of puisne judges, if any, as may be prescribed by Parliament:

Provided that the office of a judge shall not be abolished while any person is holding thatoffice unless he consents to its abolition.‘ (emphasis added)

Section 4 of the Criminal Procedure Code (Ch. 7) states (in part):

‗Subject to the other provisions of this Code –

(a) any offence may be tried by the High Court.‘ (emphasis added)

Section 56 of the Criminal Procedure Code (Ch. 7) states:

‗The High Court may inquire into and try any offence subject to its jurisdiction at any placewhere it has power to hold sittings:


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Provided that no criminal case shall be brought under the cognizance of the High Courtunless the same shall have been previously investigated by a Magistrates‟ Court and theaccused person shall have been committed for trial before the High Court. ‘ (emphasisadded)

Therefore, a ‗ Preliminary Investigation / Inquiry ‘ must be held in respect of any offence which is tobe tried before the High Court. The law relating to ‗ Preliminary Investigations / Inquiries ‘ isexamined commencing on page 310 .


‗The High Court […] has authority to cause to be brought before it any person who –

(a) is within Solomon Islands and is charged with an offence committed within, or which maybe inquired into or tried within, the local limits of its jurisdiction; or

(b) is within the local limits of its jurisdiction and is charged with an offence committed within

Solomon Islands, or which according to law may be dealt with as if it had beencommitted within Solomon Islands,

and to deal with the accused person according to its jurisdiction.‘


‗The High Court may pass any sentence authorized by law.‘

The law relating to ‗ Sentencing ‘ is examined commencing on page 918 .

See also: sections 78 to 83 of the Constitution , sections 56, 57 & 67 of the Criminal ProcedureCode (Ch. 7) and sections 34, 46, 47 & 48 of the Magistrates‟ Courts Act (Ch. 20).

[2.2.2] Appellate Jurisdiction

Section 45 of the Magistrates‟ Courts Act (Ch. 20) states:

‗ Appeals in criminal cases shall lie to the High Court from any Magistrates‘ Court inaccordance with any other Act for the time being in force relating to criminal procedure and ofany Rules of Court made under the provisions of section 90 of the Constitution.‘ (emphasisadded)


‗(1) Save as hereinafter provided, any person who is dissatisfied with any judgment, sentenceor order of a Magistrates‟ Court in any criminal cause or matter to which he is a party mayappeal to the High Court against such judgment, sentence or order:

Provided that no appeal shall lie against an order of acquittal except by, or with thesanction in writing of, the Director of Public Prosecutions .

(2) When a person convicted on trial by a Magistrates‘ Court is not represented by anadvocate he shall be informed by the Magistrate of his right of appeal at the time whensentence is passed.


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(3) An appeal to the High Court may be a matter of fact as well as a matter of law.

(4) For the purposes of this Part [Part IX -- ‗ Appeals From Magistrates‟ Courts and CasesStated ‘] the extent of a sentence shall be deemed to be a matter of law.

(5) The Director of Public Prosecutions shall be deemed to be a party to any criminal causeor matter in which the proceedings were instituted and carried on by a public prosecutor.‘(emphasis added) [words in brackets added]



‗(1) No appeal shall be allowed in the case of an accused person who has pleaded guilty andhas been convicted of such plea by a Magistrates‘ Court, except as to the extent orlegality of the sentence .

(2) Save with the leave of the High Court, no appeal shall be allowed in a case in which aMagistrates‘ Court has passed a sentence of a fine not exceeding ten dollars only,notwithstanding that a sentence of imprisonment has been passed by such court indefault of the payment of such fine, if no substantive sentence of imprisonment has alsobeen passed.

(3) No conviction or sentence, which would not otherwise be liable to appeal, shall beappealable merely on the ground that the person convicted is ordered to find security tokeep the peace.‘ (emphasis added)


‗(1) After the hearing and determination by any Magistrates‘ Court of any summons, chargeor complaint, either party to the proceedings before the said Magistrates‘ Court may, ifdissatisfied with the said determination as being erroneous in point of law, or as being inexcess of jurisdiction, apply in writing within one month from the date of the saiddetermination, including the day of such date, to the said Magistrates‘ Court to state andsign a special case setting forth the facts and the grounds of such determination for theopinion thereon of the High Court.

(2) Upon receiving any such application the Magistrate shall forthwith draw up the specialcase and transmit the same to the Registrar of the High Court together with a certifiedcopy of the conviction, order or judgment appealed from all documents alluded to in thespecial case and the p rovisions of section 289 shall thereupon apply.‘ (emphasis added)

See also: sections 185 & 285 to 309 & 311 of the Criminal Procedure Code (Ch. 7) & sections46, 47 & 48 of the Magistrates‟ Courts Act (Ch. 20).


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[2.2.3] Revisional Jurisdiction

Section 84(1) of the Constitution states (in part):

‗The High Court shall have jurisdiction to supervise any […] criminal proceedings before anysubordinate court and may make such orders, issue such writs and give such directions as itmay consider appropriate for the purpose of ensuring that justice is duly administered by anysuch court [‗ Revisional Jurisdiction ‘].‘ (emphasis added) [words in brackets added]


‗When a case is revised by the High Court in exercise of the revisional powers conferred bythe Magistrates‘ Courts Act, it shall certify its decision or order to the court by which thesentence or order so revised was recorded or passed, and the court to which the decision ororder is so certified shall thereupon make such orders as are comformable to the decision socertified, and shall take such steps as may be necessary to enforce such decision or order.‘(emphasis added)

See also: sections 46 to 48 of the Magistrates‟ Courts Act (Ch. 20).

[2.3] Magistrates’ Court

[2.3.1] Introduction

The ‗Magistrates‟ Court ‘ was established by virtue of section 3 of the Magistrates‟ Courts Act (Ch.20) which states:

‗(1) There shall be and are hereby constituted throughout Solomon Islands courts ofsummary jurisdiction, to be known respectively as Principal Magistrates‟ Court and

Magistrates‟ Courts of the First Class and of the Second Class subordinate to the HighCourt.

(2) There shall be in each district such Magistrates‘ Courts as the Chief Justice may direct.

(3) Any power, authority, function or discretion vested in a Magistrates‘ Court by this or anyother Act or law shall be possessed as may be exercised by a Magistrate havingadequate jurisdiction.

(4) Every Magistrates‘ Court shall be a Court of Record.‘ (emphasis added)

There are therefore three classes of Magistrates‘ Court:

Principal Magistrates‘ Court;

Magistrates‘ Court of the First Class; and

Magistrates‘ Court of the Second Class.


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The Chief Justice has directed that there shall be a Magistrates‘ Court in each of the followingDistricts –

Central District;

Malaita District; Western District; Eastern District; and Eastern Outer Islands District‘, se e Directions By The Chief Justice ‘ issued on 5 th May

1962.

Section 18 of the Magistrates‟ Courts Act (Ch. 20) states (in part):

‗Subject to any other provision of this Act and to the provisions of any other law for the timebeing in force in Solomon Isla nds every Magistrates‘ Court shall have and exercise

jurisdiction in […] criminal matters as in this Act provided.‘ (emphasis added)


‗Subject to the provisions of any other law for the time bein g in force, the jurisdiction vested inMagistrates‘ Courts shall be exercised (so far as regards practice and procedure) in themanner provided by this Act or by any other Act for the time being in force relating to criminal[…] procedure, or by Rules of C ourt, and in default thereof, in substantial conformity with thelaw and practice for the time being observed in England in county courts, police courts andcourts of summary jurisdiction .‘ (emphasis added)


‗(1) Any offence under any law for the time being in force in Solomon Islands shall, when anycourt is mentioned in that behalf in such law, be tried by such court.

For the purposes of this a provision in any law for an offence to be tried summarily shall beconstrued as a reference to the trial of such offence by a Magistrates‘ Court.

(2) When no court is mentioned in the manner referred to in subsection (1) in respect of anyoffence, such offence may be tried in accordance with this Code.‘

See however sections 185 & 209 of the Criminal Procedure Code (Ch. 7).

A Magistrates‘ Court may ‗revise any of the proceedings of a local court, whether civil or criminal‘,see section 27 of the Local Courts Act (Ch. 19).

Furthermore, ‗any person aggrieve d by any order or decision of a local court may within thirtydays from the date of such order or decision appeal therefrom to the Magistrates‘ Court having

jurisdiction in the area‘, see section 28 of the Local Courts Act (Ch. 19) (emphasis added)

See also: sections 49 & 50 of the Magistrates‟ Courts Act (Ch. 20).



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[2.3.2] Principal Magistrates’ Court

Section 27(1) of the Magistrates‟ Court Act (Ch. 20) states:

‗Subject to the provisions of any other law for the time being in force, a Principal Magistrates‘Court shall have jurisdiction to try summarily any criminal offence –

(a) for which the maximum punishment prescribed by law for such offence does not exceed -

(i) fourteen years imprisonment; or

(ii) a fine; or

(iii) both such imprisonment and such fine; or

(b) in respect of which jurisdiction is by any law expressly conferred upon a PrincipalMagistrates‘ Court or it is expressly provided that such offenc e may be tried summarily:

Provided that the maximum punishment which a Principal Magistrates‘ Court may imposeshall not exceed –

(i) a term of imprisonment for five years; or

(ii) a fine of one thousand dollars; or

(iii) both such imprisonment and suc h fine.‘

See however the proviso as provided for in subsection (3) of that section.

The Magistrates‟ Court (Increase In Criminal Jurisdiction) Orders issued for the years 1963, 1971,1974, 1975, 1977 & 1991 specify a number of offences which may be dealt with summarily.Those offences are specified commencing on page 22 .

See also: sections 4, 7 & 8 of the Criminal Procedure Code (Ch. 7).

[2.3.3] Magistrates’ Courts Of The First & Second Class

Section 27(2) of the Magistrates‟ Courts Act (Ch. 20) states:

‗Subject to the provisions of any other law for the time being in force, a Magistrates‟ Court ofthe First Class or the Second Class shall have jurisdiction to try summarily any criminaloffence –

(a) for which the maximum punishment prescribed by law for such offence does not exceed -

(i) imprisonment for a term of one year; or

(ii) a fine of two hundred dollars; or

(iii) both such imprisonment and such fine.‘


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(b) in respect of which jurisdiction is by any law exp ressly conferred upon a Magistrates‘Court of the First Class or of the Second Class or it is expressly provided that such offencemay be tried summarily; or

(c) for which any penalty is expressly provided in respect of a conviction by a Magistrates‘Cour t of the First Class or of the Second Class.‘ (emphasis added)

See however the proviso as provided for in subsection (3) of that section.

Refer also to: The Magistrates‟ Court (Increase In Criminal Jurisdiction) Orders for the years1963, 1971, 1974, 1975, 1990, 1991 & 1993.

See also: sections 4, 7 & 8 of the Criminal Procedure Code (Ch. 7).

[2.3.4] Magistrates’ Court (Increase In Criminal Jurisdiction) Orders

Magistrates‟ Court (Increase In Criminal Jurisdiction) (1963) Order Subject to the provisions of section 27(3) of the Magistrates‟ Courts Act (Ch. 20), all Magistrates‘Courts within Solomon Islands shall have jurisdiction to try any of the following offences:

Section Statute Offence55 Penal Code Aiding Soldiers Or Policeman In Acts Of Mutiny75 Penal Code Riot83 Penal Code Going Armed In Public85 Penal Code Forcible Entry86 Penal Code Forcible Detainer88 Penal Code Challenge To Fight A Duel89 Penal Code Threatening Violence

95 Penal Code False Claims By Officials106 Penal Code False Statutory Declarations & Other FalseStatements Without Oath

114 Penal Code Deceiving Witness115 Penal Code Destroying Evidence116 Penal Code Conspiracy To Defeat Justice & Interference With

Witnesses117 Penal Code Compounding Felonies118 Penal Code Compounding Penal Actions119 Penal Code Advertisements For Stolen Property123 Penal Code Injury, Damage Or Threat132 Penal Code Disturbing Religious Assemblies140 Penal Code Abduction Of Girl Under Eighteen Years Of Age With

Intent To Have Sexual Intercourse141 Penal Code Indecent Assault On Females142(2) Penal Code Defilement Of Girls Under Thirteen Years Of Age

144 Penal Code Procuration145 Penal Code Procuring Defilement Of Women By Threats Or

Fraud Or Administering Drugs153 Penal Code Living On Earnings Of Prostitution Or Aiding

Prostitution


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Magistrates‟ Court (Increase In Criminal Jurisdiction) (1963) Order

154 Penal Code Suspicious Premises185 Penal Code Negligent Act Likely To Spread Infection Of Disease

Dangerous To Life186 Penal Code Fouling Air188 Penal Code Endangering Property With Fire etc233 Penal Code Cruelty To Children237 Penal Code Reckless & Negligent Acts Endangering Safety Of

Persons240 Penal Code Travelling By Aircraft, Vehicle Or Vessel245 Penal Code Assaults Causing Actual Bodily Harm247 Penal Code Assaults Punishable With Two Years Imprisonment254 Penal Code Abduction Of Girls Under 15 Years256 Penal Code Unlawful Compulsory Labour261 Penal Code General Punishment For Theft264 Penal Code Larceny Of Electricity265 Penal Code Larceny Of Minerals

272(b) Penal Code Larceny By Tenant Or Lodger274 Penal Code Larceny Of Cattle275 Penal Code Larceny Of Dog279 Penal Code Larceny Of Trees280 Penal Code Larceny Of Fences281 Penal Code Larceny Of Fruit & Vegetables282 Penal Code Damaging Fixtures, Trees, etc With Intent To Steal287 Penal Code Miners Removing Minerals289 Penal Code Killing Animals With Intent To Steal302 Penal Code Being Found By Night Armed Or In Possession Of

Housebreaking Implements308 Penal Code False Pretences310 Penal Code Pretending To Tell Fortunes311 Penal Code Obtaining Registration, etc, by False Pretences312 Penal Code False Declaration For Passport313 Penal Code Receiving314 Penal Code Receiving Goods Stolen Outside Solomon Islands

315(2) Penal Code Power Of Minister To Notify Applied Marks For PublicStores

325 Penal Code Injuring Animals326(1) Penal Code Malicious Injuries In General & In Special Cases

329 Penal Code Removing Boundary Marks With Intent To Defraud330 Penal Code Wilful Damage, etc, To Survey & Boundary Marks355 Penal Code Uttering & Possession With Intent To Utter372 Penal Code Lending, etc, Testimonial For Impersonation374 Penal Code Corrupt Practices379 Penal Code Attempts To Commit Offences5(2) Firearms & Ammunition

ActPurchasing, etc., Firearms Or Ammunition WithoutFirearm License


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Magistrates‟ Court (Increase In Crimi nal Jurisdiction) (1971) Order

Subject to the provisions of section 27(3) of the Magistrates‟ Courts Act (Ch. 20), all Magistrates‘Courts within Solomon Islands shall have jurisdiction to try any of the following offences:

Section Statute Offence273 Penal Code Larceny & Embezzlement By Clerks & Servants

[In Respect Of Which The Value Of Any PropertyDoes Not Exceed An Aggravate Of $200]

278 Penal Code Conversion[In Respect Of Which The Value Of Any PropertyDoes Not Exceed An Aggravate Of $200]

Mag istrates‟ Court (Increase In Criminal Jurisdiction) (1974) Order

Subject to the provisions of section 27(3) of the Magistrates‟ Courts Act (Ch. 20), all Magistrates‘Courts within Solomon Islands shall have jurisdiction to try the following offence:

Section Statute Offence143(1)a) Penal Code Defilement Of A Girl Between 13 & 15 Years


Subject to the provisions of section 27(3) of the Magistrates‟ Courts Act (Ch. 20), all Magistrates‘Courts within Solomon Islands shall have jurisdiction to try the following offence:

Section Statute Offence271 Penal Code Larceny From Ship, Dock, etc

[In Respect Of Which The Value Of Any Goods OrOther Things Stolen Does Not Exceed An Aggravate

Of $200]Magistrates‟ Court (Increase In Criminal Jurisdiction) (1977) Order

Subject to the provisions of section 27(3) of the Magistrates‟ Courts Act (Ch. 20), all PrincipalMagistrates‟ Courts within Solomon Islands shall have jurisdiction to try any of the followingoffences:

Section Statute Offence224 Penal Code Acts Intended To Cause Grievous Harm Or Prevent

Arrest293 Penal Code Robbery299 Penal Code Burglary

319 Penal Code ArsonMagistrates‟ Court (Increase In Criminal Jurisdiction) (1990) Orde r

Subject to the provisions of subsections (2) and (3) of section 27 of the Magistrates‟ Courts Act(Ch. 20), all Magistrates‟ Courts of the First Class within Solomon Islands shall have jurisdictionto try any of the following offences:


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Section Statute Offence84 Penal Code Possession Of Weapon

269 Penal Code Larceny In Dwelling – house[Where The Value Of The Property Stolen Does Not

Exceed $1000]270 Penal Code Larceny From Person

[Where The Value Of The Property Stolen Does NotExceed $1000]

271 Penal Code Larceny From Ship, Dock, etc[Where The Value Of The Property Stolen Does NotExceed $1000]

380 Penal Code Attempt To Commit Such Offences[Where The Value Of The Property Stolen Does NotExceed $1000]

278 Penal Code Conversion[Where The Value Of The Property Converted DoesNot Exceed $1000]

38 Traffic Act Causing Death By Reckless Or Dangerous Driving39 Traffic Act Reckless Or Dangerous Driving43 Traffic Act Driving Or In Charge Unfit To Drive

Liquor Act All Offences40 Solomon Islands National

Provident Fund ActGeneral Offences

9(2) Firearms & Ammunitions Act

Marking Of Firearms

22 Firearms & Ammunitions Act

Concealing Unlawfully Imported Firearms Or Ammunition


Certain Weapons Prohibited Without Authority OfMinister

30(3) Firearms & Ammunitions

Act

Search For Firearm Or Ammunition Under Warrant


Subject to the provisions of subsections (1) and (3) of section 27 of the Magistrates‟ Courts Act(Ch. 20), all Principal Magistrates‟ Courts within Solomon Islands shall have jurisdiction to try thefollowing offence:

Section Statute Offence4 Firearms & Ammunitions

ActRestriction On The Manufacture Of Firearms Or

Ammunition


Subject to the provisions of subsections (2) and (3) of section 27 of the Magistrates‟ Courts Act(Ch. 20), all Magistrates‟ Courts of the First Class within Solomon Islands shall have jurisdictionto try any of the following offences:


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Section Statute Offence6(8) Firearms & Ammunitions

ActGrant, etc., Of Firearm Licenses

12 Firearms & Ammunitions

Act

Obstructing Inspection Of Stock – in - Trade


Dealer To Maintain Approved Firearms Store


Shortening & Converting Firearms & ImitationFirearms


Unlawful Importation Or Exportation


Minister May Prohibit Importation Or Exportation


Prohibition Of Arms In Certain Areas


Taking In Pawn Firearms Or Ammunition

40 Firearms & Ammunitions Act Loss Of Firearm To Be Reported


Carrying Firearm While Drunk Or Disorderly


Threatening Violence With Firearm


Appeals

Magistrates‟ Court (Increase In Criminal Juris diction) (1993) Order

Subject to the provisions of subsections (2) and (3) of section 27 of the Magistrates‟ Courts Act(Ch. 20), all Magistrates‟ Courts of the First Class within Solomon Islands shall have jurisdiction

to try any of the following offences:

Section Statute Offence83 Penal Code Going Armed In Public

247 Penal Code Assaults Punishable With 2 Years Imprisonment295 Penal Code Demanding Money With Menaces Things Capable Of

Being Stolen325 Penal Code Injuring Animals

326(1) Penal Code Malicious Injuries In General & In Special Cases43(1)(b) Traffic Act Unfit To Drive43(2)(b) Traffic Act Unfit To Drive

[2.3.5] Territorial Limits


‗(1) A Principal Magistrates‘ Court shall exercise jurisdiction throughout Solomon Islands.

(2) Subject to any express provisions of this or any other Act, every Magistrates‘ Court shallexercise jurisdiction within the limits of the district within which it is situated:


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Provided that when there is more than one Magistrates‘ Court in the same district, theChief Justice may direct the distribution of business between such Courts.

(3) The jurisdiction of each Magistrates‘ Court shall extend over any territorial wa ters

adjacent to the district in which it is situated as well as over inland waters whether withinor adjacent to such district.‘

See also: sections 46 & 50 of the Magistrates‟ Courts Act (Ch. 20) and The Magistrates‟ Courts(Districts) Order issued on 5 th May 1962.


‗[E]very Magistrates‘ Court has authority to cause to be brought before it any person who –

(a) is within Solomon Islands and is charged with an offence committed within, or which maybe inquired into or tried within, the local limits of its jurisdiction; or

(b) is within the local limits of its jurisdiction and is charged with an offence committed withinSolomon Islands, or which according to law may be dealt with as if it had been committedwithin Solomon Islands,

and to deal with the accused person according to its jurisdiction.‘


‗Where a person accused of having committed an offence within Solomon Islands hasremoved from the district within which the offence was committed and is found within anotherdistrict, the court within whose jurisdiction he is found may cause him to be brought before it and shall, unless authorized to proceed in the case, send him in custody to the court withinwhose jurisdiction the offence is alleged to have been committed , or require him to givesecurity for his surrender to that court there to answer the charge and to be dealt withaccording to law.‘ (emphasis added)

See however section 67(1) of the Criminal Procedure Code (Ch. 7) which states (in part):

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

[…]

(d) that an order under this section will tend to the general convenience of the parties orwitnesses ; or

(e) that such an order is expedient for the ends of justice or is required by any provision ofthis Code;

it may order –

(i) that any offence be inquired into or tried by any court not empowered under theproceeding sections of the Part [Part IV -- ‗Provisions Relating To All CriminalInvestigations And Proceedings ‘] but in other respects competent to inquire into or trysuch offence; or

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


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(iii) that an accused person be committed for trial to itself.‘ (emphasis added) [words inbrackets added]

See also sections 55, 59, 60, 61, 62, 63, 65 & 66 of the Criminal Procedure Code (Ch. 7) &

sections 9 & 28 of the Magistrates‟ Co urts Act (Ch. 20) & section 6 of the Penal Code (Ch. 26).See however sections 137 to 140 & 310 of the Criminal Procedure Code (Ch. 7).

[2.4] Local Court

Section 2(1) of the Local Courts Act (Ch. 19) enables the establishment of ‗ Local Courts ‘. Thatsection states:

‗By warrant under his hand the Chief Justice may establish in Solomon Islands such localcourts as he shall think fit which shall exercise over Islanders within such limits as may bedefined by such warrant the jurisdiction therein defined and such jurisdiction as may be

conferred by any Act on local courts generally.‘ (emphasis added) Section 7 of the Local Courts Act (Ch. 19) states:

‗The criminal jurisdiction of a local court shall extend, subject to the provisions of this Act, tothe hearing, trial and determination of all criminal charges and matters in which any Islander is accused of having wholly or in part within the jurisdiction of the court, committed or beenaccessory to the committing of an offence against an Islander.‘ (emp hasis added)

Section 17(1) of the Interpretation & General Provisions Act (Ch. 85) states:

‗In every Act, except where it is otherwise expressly provided or by necessary implicationotherwise required, ―Islander‖ means –

(a) any person both of whose parents are or were members of a group, tribe or lineindigenous to Solomon Islands; or

(b) any other person at least one of whose parents or ancestors was a member of a race,group, tribe or line indigenous to any island of Melanesia, Micronesia or Polynesia andwho is living in Solomon Islands in the customary mode of life of any such race, group,tribe or line.‘ (emphasis added)

The ‗criminal jurisdiction ‘ of each Local Court is specified in the Warrant which is issued undersection 2 of the Local Courts Act (Ch. 19) and the Local Courts (Criminal Jurisdiction) Order issued pursuant to section 17 of that Act.

Section 28 of the Local Courts Act (Ch. 19) provides that appeals in respect of criminal mattersare to be heard in the Magistrates‘ Court.

[2.5] Juvenile Court

As regards ‗ Juveniles ‘ reference should be made to the Juvenile Offenders Act (Ch. 14) andsection 29 of the Magistrates‟ Courts Act (Ch. 20).


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STATUTORY INTERPRETATION

Table Of Contents

Page

[3.0] Introduction 30 [3.1] Constitution 30 [3.2] Long & Short Titles 31 [3.3] Legislative Intent 32 [3.4] Penal Statutes

[3.4.1] Principle Of Interpretation 39[3.4.2] Mens Rea - Intention 40[3.4.3] Penal Code Specifically 41

[3.5] Extraterritorial Effect 42 [3.6] International Obligations 43 [3.7] Use Of Bills / Hansard / Explanatory Notes / Earlier Enactments 43 [3.8] Meaning Of Words & Phrases

[3.8.1] Introduction 46[3.8.2] Read In Context 47[3.8.3] Defining Words & Phrases 49[3.8.4] Current Meaning & Present Context 52[3.8.5] Consistent Meaning 53[3.8.6] Shall & Must 54[3.8.7] May & May Not 54[3.8.8] And & Or 54[3.8.9] Deemed Meanings

[A] Introduction 56[B] Means & Includes 56[C] Class Rule 57[D] Words Of Inclusion & Exclusion 57

[3.8.10] Notwithstanding 58[3.9] Punctuation 58 [3.10] Schedules & Tables 58 [3.11] Gender & Number 59 [3.12] Marginal Notes & Headings 59 [3.13] Repeal Of Statutes

[3.13.1] Introduction 59[3.13.2] Expressly 60[3.13.3] Impliedly 60

[3.14] Acts In Pari Materia 62 [3.15] Subsidiary Legislation 63 [3.16] Retrospectivity 63


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[3.0] Introduction

Whilst courts interpret statutes, ie., Acts and subsidiary legislation, prosecutors and defencecounsel are expected to provide researched sound submissions in that regard. The content of

this book is written subject to the principles of ‗ statutory interpretation ‘ and will therefore assist inproviding such submissions.

Due to its importance, greater emphasis needs to be placed on learning the principles of‗statutory interpretation ‘ so as to achieve a better understanding of the meaning of statutes.When interpreting statutes consideration must be given to:

the Constitution ;

the Interpretation & General Provisions Act (Ch. 85);

any definitions and rules of interpretation in specific Acts under consideration. Section 15of the Interpretation & General Provisions Act (Ch. 85) states:

‗Definitions and rules of interpretation in an Act apply to the provisions co ntainingthem as well as to the other provisions of the Act‘; and

common law rules or maxims or cannons of ‗ statutory interpretation or construction ‘,although not all such rules or maxims or cannons will be examined.

[3.1] Constitution

In Ronald Ziru (on behalf of SIMA Medical Centre) v Attorney – General (Unrep. Civil Case No.21 of 1993) Muria CJ stated at page 8:

‗Unlike in England, we have a written Constitution here which is the Supreme law. All otherlaws must conform to it. The starting point must, inevitably, be the Constitution in anyconstruction of legal provisions .‘ (emphasis added)

Section 2 of the Constitution states:

‗This Constitution is the supreme law of Solomon Islands and if any other law is inconsistentwith this Constitution, that other law shall, to the extent of the inconsistency , be void.‘(emphasis added)

In Walter Folotalu v Attorney – General (Unrep. Civil Case (Constitutional) No. 234 of 2001)Palmer ACJ held that section 2 of the National Parliament Electoral Provisions (Amendment) Act 2001 was inconsistent with section 13 of the Constitution and by virtue of section 2 of theConstitution is void.

In R v Noel Bowie [1988 – 89] SILR 113 Ward CJ held that the word ‗male‘ should be severedfrom section 155 of the Penal Code (Ch. 26) in order to ensure that it was not inconsistent withsection 15 of the Constitution .


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[3.2] Long & Short Titles

Section 18 of the Interpretation & General Provisions Act (Ch. 85) states:

‗(1) An Act may be cited –

(a) by its short title;

(b) by reference to the year in which it was enacted and its number among the Acts of thatyear; or

(c) by the Chapter number given to it in any revised edition of the Laws of Solomon Islands.

(2) A reference to an Act in accordance with subsection (1) shall be made according to theshort title, number or Chapter number used in copies of the Act printed by the GovernmentPrinter.‘

Therefore, as regards the Interpretation & General Provisions Act (Ch. 85): a ‗short title ‘ is ‗Interpretation & General Provisions Act (Ch. 85)‘; and

the ‗long title ‘ is ‗An Act to make provision for the interpretation of laws; to make certaingeneral provisions with regard to laws; and to provide for matters connected therewithand incidental thereto‘ which appears immediately above section 1 of that Act.

Section 9(3) of the Interpretation & General Provisions Act (Ch. 85) states:

‗Each Act shall be deemed to be remedial and shall receive such fair and liberal constructionand interpretation as will best ensure the attainment of the object of the Act according to itstrue intent, meaning and spirit.‘ (emphasis added)

The ‗short‟ and ‗long ‘ titles of a statute can be used to interpret and understand its objectives.

In The State v Danny Sunu, Namarai Walter, Iku Gagoro & Philip Haro [1983] PNGLR 396Bredmeyer J, sitting alone, stated at page 402:

‗To interpret a statute I am entitled to refer to its objectives and I may look at the short andlong title to assist in that task. ―… it is the plainest of all guides to the general objectives of astatute,‖ Black – Clawson International Ltd v Papierwerke Waldof – Aschaffenburg A. G.[1975] AC 591 at 647 per Lord Simon.‘

In Birch v Allen (1942) 65 CLR 621 Latham CJ, as a member of the High Court of Australia,stated at page 625:

‗It may be proper to look at the [long] title for the purpose of determining the scope of an Act;it may be referred to, not to contradict any clear and unambiguous language, but if there isany uncertainty it may be referred to fo r the purpose of resolving the uncertainty.‘ [word inbrackets added]

See also: Saze v Eicholz [1919] 2 KB 171 & Re Boaler [1915] 1 KB 21.


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[3.3] Legislative Intent

A summary of the principles examined in this section is as follows:

The purpose of legislation is to rectify an identified mischief [ie., a problem or issueneeding or requiring to be addressed] by providing a statutory remedy [ie., solution];

Legislation must be interpreted according to the ‗ perceived intention ‘ of the Parliament;

The intention of the Parliament is revealed in the words used in the statute;

A statute must be read as a whole;

Common law rules or maxims or cannons of statutory interpretation or construction may be used to interpret a statute;

Plain words must be interpreted according to their natural and ordinary meaning (ie., by

applying the „literal‟ rule );

Generally , the literal meaning of a statutory provision will give effect to the purpose of thelegislation; and

If the literal meaning does not coincide with the perceived purpose of the legislation thena court is entitled to give effect to that purpose by including or excluding words for thepurpose of interpreting the legislation (ie., by applying the „purposive‟ rule ).

Section 9 of the Interpretation & General Provisions Act (Ch. 85) states:

‗(1) An Act speaks from time to time.

(2) Each Act is intended to be read as a whole.(3) Each Act shall be deemed to be remedial and shall receive such fair and liberal

construction and interpretation as will best ensure the attainment of the object of the Actaccording to its true intent, meaning and spirit. ‘ (emphasis added)

In SCR No. 1 of 1981 [1981] PNGLR 151 the Supreme Court stated at page 155:

‗[T]here is a principle of statutory con struction that it is the duty of the court to make suchconstruction of a statute as shall suppress the mischief and advance the remedy.‘ (emphasisadded)

In Associated Newspapers Group Ltd v Fleming (Inspector of Taxes) [1973] AC 628 Lord Simonof Glaisdale stated at page 646:

‗It is very much part of the duty of the courts, in their task of statutory interpretation, toascertain as best they can what was the mischief as conceived by Parliament for which astatutory remedy was being provided ; nor is it necessary nowadays for courts to affectignorance of what is notorious.‘ (emphasis added)

The intention of the Parliament is revealed in the words used in the statute.


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In Pepper (Inspector of Taxes) v Hart [1993] AC 593 [[1992] 3 WLR 1032; [1993] 1 AllER 42] LordBrowne – Wilkinson commented at page 634:

‗Statute law consists of the words that Parliament has enacted. It is for the courts to construe

those words and it is the court‘s duty in so doing to give effect to the int ention of Parliament inusing those words. It is an inescapable fact that, despite all the care taken in passinglegislation, some statutory provisions when applied to the circumstances under considerationin any specific case are found to be ambiguous. One of the reasons for such ambiguity isthat the members of the legislature in enacting the statutory provision may have been toldwhat result those words are intended to achieve. Faced with a given set of words which arecapable of conveying that meaning it is not surprising if the words are accepted as havingthat meaning. Parliament never intends to enact an ambiguity. Contrast with that theposition of the courts. The courts are faced simply with a set of words which are in factcapable of bearing two meanings. The courts are ignorant of the underlying Parliamentarypurpose. Unless something in other parts of the legislation discloses such purpose, thecourts are forced to adopt one of the two possible meanings using highly technical rules ofcons truction.‘

In Chan Ho Cheon v Rok & SI Total Event Limited (Unrep. Civil Case No. 2 of 1998) Muria CJstated at page 4:

‗The starting point in this process must be words used in the provision themselves. Theintention of Parliament is expressed in those words which must be given their natural andordinary meaning in the context they are used unless it can be shown that the words as useddo not have a natural and ordinary meaning or that words are ambiguous. In those situationsthe Court can resort to on e of the ―rules of construction‖ which the courts have developed togive meaning to words used by the draftsman and which have failed to adequately conveythe natural and ordinary meaning of the words consistent with the context in which they areused. See In Re Application by the Minister for Western Provincial Affairs [1983] SILR 141.‘(emphasis added)

In Mahabir v Chan Wing Motors Limited [1982] SILR 19 Daly CJ stated at page 21:

‗[T]he statute must be read as a whole and effect be given to the intention of the legislatureas discernable from that reading. Where the legislature has chosen to use words in thestatute which have a natural and clear meaning then effect must be given to that meaning.

As Lord Justice Scott said in Croxford v Universal Insurance Co. (1936) 2 KB 233 at page281:

―Where the words of an Act of Parliament are clear, there is no reason for applying any of theprinciples of interpretation which are merely presumptions in cases of ambiguity in thestatute.‖‘ (emphasis added)

In David Maesua v Charles Dausabea & James Delemani, Mathias Pepena v David Sitai, Ronnie

To„ofilu v Moon Pin Kwan, Brian Saoba v David Vatamana Vouzer, William Gigini v James TraselSaliga, Sam Semual Iduri v Stephen Tonafalea & Returning Officer, Francis Ordani v MesachMaebiru Maetoloa & Joe Timothy Ariaria v Alfred Araha Hairui (Unrep. Civil Case Nos. 255, 268,260, 261, 263, 265, 266 & 276 of 1997) Muria CJ stated at page 6:

‗If the section of an Act is clear and unambiguous a Court should not read wo rds into them totone down Parliament‘s intention as clearly demonstrated by those words. The Court may beseen as legislating for itself if it introduces any such qualification in such circumstances.‘


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In Eric Fiebig (as Administrator of the Estate of Norleen Liebig deceased) v Solomon AirlinesLimited (Unrep. Civil Case No. 374 of 1995) Palmer J stated at page 5:

‗[T]he court must give effect to the plain and clear meaning of the words in the proviso to

section 3(2), as intended by Parliament. Those words do not need any elaborateinterpretation.‘ (emphasis added)

In Re Application by the Minister for Western Provincial Affairs [1983] SILR 141 Daly CJ stated atpages 143 - 148:

‗The simple question is, has this court power to remedy that defect on interpretation of thewords used? The answer to such suggestion is contained in the words of Lord Simonds inMagor & St. Mellons R.D.C. v. Newport Corporation (1951) 2 All E.R. 839 at p. 841 where hesaid concerning a proposal that the court should close a gap in an Act:

―It appears to me to be a naked usurpation of the legislative function under the thin disguiseof interpretation. And it is the less justifiable when it is guesswork with what material thelegislature would, if it had discovered the gap, have filled it. If the gap is discovered, theremedy lies in an amending Act.‖

In view of what I say later in this judgment, I should observe that this passage is in the courseof criticism of a rather wider view of the functions of the court on interpretation of statutestaken by Denning LJ (as he then was). I accept that there may in certain circumstances bepractical difficulties in implementing the terms of section 22(2) of the Act. However, in my

judgment, this is not a case in which it has been established that there are inconsistenciesand absurdities which flow from giving a literal meaning to the subsection in question.Impracticabilities there maybe but, as Lord Simonds says, ―the remedy lies in an amending

Act‖.

The second group of submissions is that a “purposive” approach rather than a literal oneshould be adopted to the interpretation of section 22(2). In other words I am asked to seekout the purpose of Parliament and apply what I think that purpose may be and thereafter togive the words of the subsection a different meaning from their literal meaning. But wheredoes one start on this search other than with the words themselves?

[…]

[…] The “purposive approach” does not mean the words are rejected; it mea ns that read intheir context they must be given a certain meaning because the draftsmen has omittedsomething […].

The only proper approach to any problem of construction is first to read the words used intheir context. If the words have a natural and ordinary meaning then the words should begiven that meaning. If that is to be called a “literal approach” I do not consider it to be

outdated; the functions of a court in any case of interpretation is to decide the meaning ofwords. The intent and purpose of the legislature is expressed in words. What other“approach” can there be but “literal”? There may be scope where the words are ambiguousor where the natural and ordinary meaning reveals that something has been omitted (paceLord Diplock) for a co urt to apply one or other of what have been called “rules ofconstruction”. But the starting point is always the words themselves and these ―rules ofconstruction‖ are merely common sense and judicial experience (if there is any distinction)applied to the task of giving a meaning to words where the draftsman has, in the view of acourt, failed adequately to convey a natural and ordinary meaning that is consistent with thecontext in which the words are used.‘ (emphasis added)


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In Anna Wemay & others v Kepas Tumdual [1978] PNGLR Wilson J, sitting alone, stated at page176:

‗The fundamental rule for the interpretation of a statute applies in this case, viz., that the

statute should be construed [ie., interpreted] according to the intention expressed in the Actitself.

If the words of the statute are themselves precise and unambiguous, then no more isnecessary than to expound those words in their ordinary and natural sense. The wordsthemselves are generally the best declaration of the intention of the legislature.‘ (emphasisadded) [word in brackets added]

If in applying the literal rule of statutory interpretation the mischief is not properly addressed, thecourt may apply the purposive rule of statutory interpretation which is used to promote thegeneral legislative purpose underlying the statute or section because the intention of theParliament is ambiguous or unclear. Therefore, the ‗ purposive rule ‘ is used to interpret the ‗true‘purpose of the statute or section.

In John Bare Maetia v R (Unrep. Criminal Appeal Case No. 2 of 1994) Los JA of the Court of Appeal, sitting alone, stated at pages 2 – 3:

‗It is desirable in my view to take a purposive approach to the interpretation of the Act here.[… T]his court must give a fair and liberal meaning of the word […] to attain the object of the

Act. Such an interpretation is not unknown in Solomon Islands, see R –v- Kauwai (1980/81)SILR 108. for example.‘

In Club Freeway v Honiara Liquor Licensing Board (Unrep. Civil Case No. 28 of 1998) Kabui Jafter referring to section 9(3) of the Interpretation & General Provisions Act (Ch. 85) stated atpage 6:

‗[T]he Act should be interpreted in such a way that the object of the Act is attained. This iswhat is called the ―purpose approach‖ in the interpretation of statutes.‘

In Honorable Christopher Columbus Abe v Minister of Finance & Attorney – General (Unrep. CivilCase No. 197 of 1994) Muria CJ stated at pages 9 – 10:

‗The Court must […] construe the words used so as to ascert ain what Parliament hadintended. But if in so doing the result is an absurdity, as in this case, then the Court is

justified in going outside the words used by the statute in order to ascertain the intention ofParliament particularly here where it is plainly obvious that a drafting omission had beenmade. On this approach of statutory interpretation Lord Scarman had this to say in Stock – v-Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 238; [1978] 1 All E R 948 at 955:

―If the words used by Parliament are plain, there is no room for the ‗anomalies‘ test, unless

the consequences are so absurd that, without going outside the statute, one can see thatParliament must have made a drafting mistake. If words ‗have been inadvertently used, ‗it islegitimate for the court to substitute what is apt to avoid the intention of the legislature beingdefeated…. This is an acceptable exception to the general rule that plain language excludesa consideration of anomalies, ie mischievous or absurd consequences … but mere ‗manifestabsurdity‘ is not enough: it must be an error (of commission of omission) which in its contextdefeats the intention of the Act.‖


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Lord Denning robustly put it this way in Camden London Borough Council – v- Post Office[1977] 1 WLR 892 at 897 when construing the words used in paragraph 8(1) of the Scheduleto the General Rate Act, 1967:

―But that gives rise to such an absurd result that there must be some mistake in the drafting.Such mistakes do occur from time to time; and when they occur the courts must do what theycan to put things right. I think the courts should correct these words ….‖‘ (emphasis added)

In Solomon Breweries Limited v Controller of Customs & Excise (Unrep. Civil Case No. 218 of1996) Muria CJ stated at page 14:

‗As such the Court is entitled to prefer the interpretation which grants injustice and avoidsanomaly and absurdity since the legislature never intended injustice or absurdity when itmade the law in the first place. See Magin –v- Commissioner of Inland Revenue [1971]NZLR 591; Johnson –v- Moreton [1978] 3 WLR 538; Applin –v- Race Relations Board [1974]2 WLR 541. I need only refer to what Lord Salmon stated in Johnson –v- Moreton where hesaid:

―If the words of the statute are capa ble, without being distorted, of more than one meaning,the Court should refer the meaning which leads to a sensible and just result complying withthe statutory objective and reject the meaning which leads to absurdity or injustice and isrepugnant to the statutory objective.‖‘

In SCR No. 6 of 1984: Re Provocation [1985] PNGLR 31 the Supreme Court applied the‗ purposive ‘ rule of statutory interpretation. At pages 38 – 39 Amet J stated:

‗I consider the expression of Lord Denning referred to and quoted by Wilson J [in PLAR No. 1of 1980 [1980] PNGLR 326] applicable and I adopt them also. [… In Northman v BarnetLondon Borough Council [1978] 1 WLR 220] Lord Denning stated at page 228:

―[…] The literal method is now completely out of date. It has been re placed by the approachwhich Lord Diplock described as the ‗purposive approach‘. … In all cases now ininterpretation of statutes we adopt such a construction as will ‗promote the general legislativepurpose‘ underlying the provision. It is no longer ne cessary for the judges to wring theirhands and say: ‗There is nothing we can do about it.‘ Whenever the strict interpretation of astatute gives rise to an absurd and unjust situation [by applying the „literal‟ rule], the judgescan and should use their good sense to remedy it – by reading words in, if necessary – so asto do what Parliament would have done, had they had the situation in mind. ‖‘ (emphasisadded) [words in brackets added]

In SCR No. 1 of 1985; Inakambi Singorom v Klaut [1985] PNGLR 328 Kidu CJ, as a member ofthe Supreme Court, stated at page 241:

‗Rules or maxims of interpretation of statutes are only guides and must not be thought of as

substantive law. They are not inflexible rules to be applied without question. […]

Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sightof and that is that a clear parliamentary intention in legislation cannot be ignored or overruledby the courts.‘ (emphasis added)


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In John Bare Maetia v R (Unrep. Criminal Case No. 2 of 1994) Los JA, sitting as the Court of Appeal, stated at page 2:

‗The counsel for appellant has also relied on a tool of statutory interpretation expressio unius

exclusio alterius to submit that because the definition of goods specifically enumeratescertain things and not birds, the Act specifically excludes any prohibition of exporting birds. Ithink with respect the maxim is helpful but it may inhibit expansion of thoughts and mayobscure the purpose and a l egislative scheme.‘

In R v Perfill, McDougall & John Bare Maetia (Unrep. Criminal Case No. 32 of 1992) Muria CJstated at pages 2 – 3:

‗The maxim ―expressio unius exclusio alterius ‖ is no more than an aid to construction andmust be watched since its application to the two contrasting statutes here concerned maywell lead to a misconception of the rule. The rule is, however, a valuable tool but one whichmust be watched. As Wills J., stated in Colquhoun -v- Brooks (1887) 19 QBD 400, at 406:

―I may observe that the method of construction summarized in the maxim ‗expressio uniusexclusio alterius‘ is one that certainly to be watched. Perhaps few so – called rules ofinterpretation have been more frequently misapplied and stretched beyond their due limits.The failure to make the ―expressio‖ complete very often arises from accidents, very oftenfrom the act that it never struck the draftsman that the thing supposed to be excluded neededspecific mention of any kind; and the application of this and every other technical rule ofconstruction varies so much under differing circumstances, and is open to so manyqualification and exceptions, that is rarely that such rules help one to arrive at what is meant.‖

On appeal to the Court of Appeal Lopes, LJ, (1888) 21 QBD 52 at p. 65) said:

―The maxim ‗expressio unius exclusio alterius ‘ has been pressed upon us. I agree with whatis said in the Court below by Wills J., about the maxim. It is often a valuable servant, but adangerous master to follow in the construction of statutes or documents. The exclusio isoften the result of inadvertence or accident and the maxim ought not to be applied, when itsapplication, having regard to the subject – matter to which it is to be applied, leads toinconsistency or injusti ce.‖‘

In Cooper Brookes (Woollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR297 Gibbs ACJ of the High Court of Australia stated at page 304:

‗There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and thecannons of construction are not so rigid as to prevent a realistic solution in such a case.‘

In JH Rayner (Mincing Lae) Limited v The Chief Collector of Taxes [1993] PNGLR 416 SheehanJ, sitting alone, stated at page 422:

‗When questions arise as to the interpretation of an act, the sole issue for the Court is toascertain the true construction of a statute. There are, of course, various rules ofconstruction, but these are not rules of law. They are aids only.

[…]


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All statutes must be construed to give effect to the intention of the legislature. As thatintention is to be gathered from the language employed […], courts will always look forexpress and clear language in statutes which confer or take away legal rights, impose taxesor charges, or alter clearly established principles of law or, indeed, legislate with regards to

the jurisdiction of courts.The Australian High