PacLII Home | Databases | WorldLII | Search | Feedback | Help

Criminal Law in Solomon Islands

You are here:   PacLII >> Databases >> Criminal Law in Solomon Islands >> Chapter 1: Introduction


 

Chapter 1: Introduction to Criminal Law

 

FOREWORD

The Penal and Criminal Procedure Codes were among the existing laws that had effect as part of the laws of Solomon Islands on independence in 1978. These two legislation contain, in general, the criminal law of Solomon Islands. In addition, other statutes have also enacted provisions creating offences thereby adding to the body of criminal law in this country.

It is pleasing that this comprehensive book examines the criminal law as it applies in Solomon Islands. This is the first comprehensive work on the criminal law of this country. It represents a great deal of work by Mr Errol Gibson, the Prosecutors Adviser, Solomon Islands Law and Justice Sector Institutional Strengthening Programme which is a bilateral programme of the governments of Australia and Solomon Islands.

The development of case law in Solomon Islands is fundamentally important. There is no need to refer to authorities from foreign jurisdictions when a legal principle has been firmly established for Solomon Islands as pointed out in Jane Tozaka –v- Hata Enterprises cc 198/1996 (Judgment given on 3rd June 1997). In order to develop our own body of case law there is a need to research the law and then apply the law in the courts. Whilst I have no doubt that this book will assist in the education of police officers, including police prosecutors, it will be of great value also to legal practitioners who practise law in the criminal jurisdiction and the courts.

Sir John Muria
Chief Justice
High Court of Solomon Islands

 

INTRODUCTION TO CRIMINAL LAW

  

Table of Contents

[1.0]

Introduction

[1.1]

Constitution

[1.2]

Statute Law

[1.3]

Judicial Precedent & Common Law

[1.4]

Customary Law

[1.0]                 Introduction

Prior to independence on 7th July 1978 the statute law that applied in Solomon Islands came from the 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 affected provided it was not inconsistent with the Constitution, see sections 4 and 5 of The Solomon Islands Independence Order 1978 and Shell Company (Pacific Islands) Limited v Korean Enterprises Limited and the Premier of Guadalcanal (Representing the Guadalcanal Provincial Executive 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 statute law 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 the customs, 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 makes other provision under the preceding section, the provisions of Schedule 3 to this Constitution shall have effect for the purpose of determining the operation in 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:

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

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 becoming obscure. Sometimes when one side is professionally represented and the other is not, a court may indicate issues or points which it considers important to assist the party at a disadvantage. However it is wrong for the court to give the impression that it is doing the work of one side.' (emphasis added) 

In Director of Public Prosecutions v Haikiu [1984] SILR 155 the Court of Appeal held at pages 159 – 160: 

'Mr Radclyffe's contention was simply the magistrate by his questions "had given the impression that he was assisting the prosecution". He relied on R v Kwatefena [1983] SILR 106. 

[…] In the course of his judgment Daly CJ said, "it is wrong for the Court to give the impression that it is doing the work of one side." That is undoubtedly true if the questioning suggests that the judge is satisfied that the accused is guilty; or that it shows, as Lord Denning 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 judge must not cross examine an accused when giving his evidence in chief at such length or with such severity that he is assisting the prosecution. 

These references to instances of interference make it clear something far removed from question to elucidate the facts must be revealed. […] Mr. Radclyffe submitted that questions put by a Magistrate should be "neutral" with a view to "clarifying rather than developing points". The word "neutral" was used by Daly CJ in Kwatefena (supra) at p.107 in this context, "such questions should usually be couched in neutral term". If that means "without taking sides", as previously explained, we agree, but it needs to be made clear that a judge is not expected to refrain from putting a question because the answer may favour one side or the other. Answers to questions so put cannot be relied on as showing that a judge or magistrate was helping one side.' (emphasis added)

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

'I think the fact is that in our present criminal Justice system, the Court is not supposed to conduct a criminal trial on behalf [of] the Crown Prosecutor. Its duty is to be impartial, hear the evidence on both sides, weigh the evidence and decide the case on its facts. It does not descend 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 page 171.   

However, the prosecution always bears the onus of proving all charges 'beyond reasonable doubt'. The law relating to: 

[i]         the 'Proof Of Issues' is examined commencing on page 68; and 

[ii]        'court procedure' is primarily examined in the chapters titled: 

[a]        'Introduction To Court Procedure' which is examined commencing on page 322

[b]        'Examination Of Witnesses' which is examined commencing on page 338; and 

[c]        'Witnesses' which is examined commencing on page 274.

In R v Yamse Masayuki, Ito Tutomu & Solgreen Enterprises Limited (Unrep. Criminal Case No. 27 of 1998) Muria CJ held at page 7: 

'[T]here is the basic principle in criminal law that criminal liability accrues as at the date of the commission of the relevant offence. Section 10(4) of the Constitution provides: 

"No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed."

That provision lays down firmly the principle of law which I have just mentioned, that is that criminal liability is to be determined by the law in force at the time when the acts constituting the offence were done.' (emphasis added) 

[1.1]                 Constitution

In R v John Musuota (Unrep. Criminal Case No. 41 of 1996) Lungole - Awich J commented at page 21:

'It is well known that the province of Constitutional Law is the rules, conventions, practices and customs that provide for organs of government, regulate their relationship to one another, and to the people. A written constitution is a document that states, in general terms, the system of government chosen by a people, what they perceive as their purpose as a state, what their philosophy about rights of persons are and their assumptions about fundamental values. It is usually a political, cultural and social statement as well as statement of laws. The laws of the constitution are meant to be the fundamental guiding laws of a country. They are therefore the important general laws upon which detailed specific laws on particular subjects are based.'

'The Constitution forms the schedule to the Solomon Islands Independence Order 1978 and become the supreme law of the Solomon Islands when, by section 4, that order came into operation on Independence day, 7th July 1978', see R v Noel Bowie [1988 – 89] SILR 113.

Section 2 of the Constitution states:

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

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 of 1993) Palmer J made the following comments at page 4: 

'The Constitution is the supreme law of the country. It belongs to the people of Solomon Islands who have established a sovereign democratic state of Solomon Islands. That sovereign democratic state is to be ruled by the Constitution and all other laws of application in 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 application therefore is restricted to the sovereign democratic state of Solomon Islands. All other laws in force in Solomon Islands therefore must primarily be read as only applying to the sovereign democratic State of Solomon Islands, unless it expressly states otherwise or by necessary implication.' (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 (As Representatives 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 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 [titled 'Protection of Fundamental Rights and Freedoms of the Individual'] 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.' (emphasis added) 

A number of the 'Fundamental Rights and Freedoms of the Individual' which are protected under the Constitution are examined in the Chapter titled 'Fundamental Rights & Freedoms' commencing on page 144

[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 Parliament of Solomon Islands. 

By virtue of section 59 of the Constitution, the Parliament of Solomon Islands has the power 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 preparation and publication of a Revised Edition of an Enactment'. In 1996 the laws of Solomon Islands 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 from the Office of the Attorney – General.

2.                  Some Acts of the Parliament of the United 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 1st January 1961 shall have effect as part of the law of Solomon Islands, with such changes to names, titles, offices, persons and institutions, and as to such other formal and non – substantive matters, as may be necessary to facilitate their application 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 general application' and held at page 6:

'[H]aving regard to the statute under consideration as a whole, is it one that regulates conduct or conditions which exist amongst humanity generally and in a way applicable to humanity generally or is it restricted to regulating conduct or conditions peculiar to persons, activities or institutions in the United Kingdom or in a way applicable only to persons activities or institutions 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 of 1993) Palmer J stated at page 3:

 '[B]y Schedule 3 of the Constitution, the laws that are in force in the United Kingdom on 1st January 1961 will have effect as part of the laws of Solomon Islands save where it is inconsistent 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; Court 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);  

[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 such law. That is not to say that Courts cannot recommend changes to the law', see Lifuasi v Danitofea (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 that specific statute law is void if it is inconsistent with the Constitution. See for example the case of R v Noel Bowie [1988 – 89] SILR 113 in which Ward CJ held that the word 'male' in section 155 of the Penal Code (Ch. 26) should be severed in order to ensure that that section was not inconsistent 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 regard made by Parliament, the operation in Solomon Islands of the doctrine of judicial precedent shall 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 operate in the following manner:- 

  1. All courts other than the Court of Appeal shall regard decisions of the Court of Appeal as of binding authority.
  1. The High Court shall regard earlier decisions of itself as persuasive authority.
  1. A Magistrates' Court shall regard decisions of the High Court, whether on review of proceedings or otherwise, as binding authority.
  1. A Magistrates' Court shall regard decisions of another Magistrates' Court as persuasive authority.'

A 'judicial precedent' is simply a legal principle which has been decided by an appropriate court that is 'binding' on other courts in the same hierarchy.

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

'Their Lordships [of the House of Lords] regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their 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' Court is bound by the decisions of the High Court and the Magistrates' Court and the High Court is bound by the decisions of the Court of Appeal. That doctrine operates to secure certainty in the 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 J commented at page 4: 

'There is a principle of law in Solomon Islands, that a point of law is decided in a case before the superior courts, binds the lower courts when the lower courts have to consider that point of 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 the process of reasoning leading to a judicial decision' (Butterworths Concise Australian Legal Dictionary, 2nd Edition, page 365). It may also be simply defined as 'the rule of law on which the decision is based'. 

When the reasons for a court's decision are contained in multiple judgments, it may be that no clear 'ratio decidendi' can be discerned. In such a case, lower courts are only bound to apply the outcome of the case when faced with a fact situation not reasonably distinguishable from the case, see Re Tyler, Ex parte Foley (1994) 181 CLR 18; (1994) 121 ALR 153 and not the reasoning 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 of the legal reasoning 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 any decision of a foreign court given on or after 7th July 1978'. However, such judgments may be considered 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 High Court of Australia is not binding. This Court being the highest court in the land is free to develop the principles of common law in the manner it deems just having regard to the circumstances of Solomon Islands. In this regard the decisions of the High Court of Australia or any other country after 7 July 1978 are not binding. They can only have persuasive value.' (emphasis added) 

When courts make judicial precedents, 'common law' also referred to as 'judge – made law' or 'case law' is developed. The 'common 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 the time being in Solomon Islands'. 

'Common law' therefore fills in the gaps left by the statute law. In R v Brown [1995] 1 CrAppR 191 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 accepted as an uncontroversial 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 Lord Griffiths, with whom Lord Keith of Kinkel & Lord Mackay of Clashfern concurred, stated at page 173: 

'[T]he common law adapts itself and evolves to meet the changing patterns and needs of society; it is not static.' 

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

Some of the 'law reports' from England, Australia, Papua New Guinea and New Zealand, referred to in this book are: 

AC

Appeal Cases

ACrimR

Australian Criminal Reports

ALJR

Australian Law Journal Reports

AllER

All England Reports

ALR

Australian Law Reports

CLR

Commonwealth Law Reports

CrAppR

Criminal Appeal Reports

CrimLR

Criminal Law Review

ER

England Reports

FCR

Federal Court Reports

FLR

Federal Law Reports

KB

Kings Bench

LT

Law Times, New Series

MVR

Motor Vehicle Reports

NSWLR

New South Wales Law Reports

NTR

Northern Territory Reports

NZLR

New Zealand Law Reports

P&NGLR

Papau & New Guinea Law Reports

PNGLR

Papua New Guinea Law Reports

QB

Queens Bench

QBD

Queens Bench Division

QdR

Queensland Reports

QL

Queensland Lawyer

QLR

Queensland Lawyer Reports

QWN

Queensland Weekly Notes

RTR

Road Traffic Reports

SASR

South Australian State Reports

SR(NSW)

State Reports New South Wales

StRQd

State Reports Queensland

TasLR

Tasmanian Law Reports

TasSR

Tasmanian State Reports

VLR

Victorian Law Reports

VR

Victorian Reports

WAR

Western Australian Reports

WN(NSW)

Weekly Notes New South Wales

WLR

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 Enterprises CC198/96 (Judgment given on 3 June, 1997). This court stressed the need to build up our own case law in this jurisdiction. So that where a legal principle had been firmly established in cases decided by our Courts, we must build upon them instead of continuing to rely on outside 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 and yet either forgot or ignored to cite those authorities. We must develop and build up our case law 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 keep referring to the authorities from foreign jurisdictions. But in order to do this, we in the Courts and 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 Mare Kilatu, 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 have effect 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 from time to time; or

 (c)    in their application to any particular matter, they are inconsistent with customary law applying 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 have effect 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) Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands. 

(2)    The preceding subparagraph shall not apply in respect of any customary law that is, and to 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 customary law for any purpose; 

(b)               regulate the manner in which or the purposes for which customary law may be recognized; 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 at page 8:

'The Constitution itself recognizes customary law as part of the law of Solomon Islands and its authority therefore cannot be disregarded. It has evolved from time immortal and its wisdom has stood the test of time. It is fallacy to view a constitutional principle or a statutory principle contained in customary law. It is the circumstances in which the principles are applied 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 courts should strive to apply such law in cases where it is applicable. However it must be done on a proper basis of evidence adduced to show that custom and its applicability to the circumstances. This evidence should be given by unbiased persons knowledgeable in custom law or extracted from authentic works on custom.'

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

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

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). 


PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback| Report an error
URL: http://www.paclii.org/sb/criminal-law/ch1-introduction.htm