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Chapter 12: Preliminary Investigation and Inquiries

 Table Of Contents  

[12.0] Introduction 

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 place where it has power to hold sittings: 

Provided that no criminal case shall be brought under the cognizance of the High Court unless the same shall have been previously investigated by a Magistrate's Court and the accused person shall have been committed for trial before the High Court.' (emphasis added)

'Any Magistrate may commit any person for trial to the High Court', see section 210 of the Criminal Procedure Code (Ch. 7). (emphasis added) 

See also: section 67(1) of the Criminal Procedure Code (Ch. 7). 

In R v Sethuel Kelly & Gordon Darcy (Unrep. Criminal Case No. 2 of 1996) Lungole - Awich J stated at pages 3 – 4: 

'A fundamental principle in the English Common Law system on which the system in Solomon Islands is based, is that in trial on a charge of felony, generally the more serious offences, the accused must be made to know the serious charge against him and the facts upon which the charge is based, well before his trial. That affords him ample time to prepare his case to oppose the serious charge. That advance knowledge is conveyed to him in proceedings known as preliminary inquiry. It might take the form of calling witnesses [long form] or simply reading the charges and depositions [short form] and giving copies to accused. The magistrate is required to protect the accused by discharging him if the magistrate does not find sufficient evidence upon which to commit accused to the High Court on the serious charge for trial there. That of course is subject to application of the DPP under section 217 of the CPC. That process protects accused from baseless serious charges.' (emphasis added) [words in brackets added] 

The 'purpose' of a 'Preliminary Investigation / Inquiry' is to determine whether there is a sufficient case or evidence or grounds to put the defendant on his/her trial by the High Court, see sections 211, 212 & 215 of the Criminal Procedure Code (Ch. 7). However, see also section 149 of that Act. In that regard a 'prima facie' case should be made out against the defendant, see Epping & Harlow Justices, Ex parte Massaro [1973] QB 433; (1973) 57 CrAppR 499; [1973] 2 WLR 158; [1973] 1 AllER 1011; [1973] CrimLR 109. 

A 'Preliminary Investigation / Inquiry' for two or more defendants may be held, provided the charge/s against those defendants can be properly joined at a trial, see R v Camberwell Green JJ, Ex parte Christie [1978] 2 WLR 794; [1978] 2 QB 602; [1978] 2 AllER 377.

[12.1] Discretion To Call Witnesses 

Considering the 'purpose' of a 'Preliminary Investigation / Inquiry', the prosecution need not call all the witnesses who might be called on a trial, see Epping & Harlow Justices, Ex parte Massaro [1973] QB 433; (1973) 57 CrAppR 499 [[1973] 2 WLR 158; [1973] 1 AllER 1011; [1973] CrimLR 109] at pages 435 and 501 respectively; R v Nugent [1977] 3 AllER 662 & R v Grays JJ, Ex parte Tetley (1980) 70 CrAppR 11. 

In R v Brown (Winston) [1997] 3 AllER 769; [1998] 1 CrAppR 66 [[1998] AC 367; [1997] 3 WLR 447 Lord Hope of Craighead, with whom their Lordships concurred, commented at page 778 and 76 respectively: 

'To repeat the words of Lord Diplock in Dallison v. Caffrey [1965] 1 QB 348 at 375, the duty of the prosecutor is to prosecute, not to defend. The important developments in the prosecutor's duty of disclosure since he wrote these words have not altered the essential point that there is a difference between the functions of the prosecutor and those of the defence. The prosecutor's duty is to prosecute the case fairly and openly in the public interest. It is not part of his duty to conduct the case for the defence.' (emphasis added)

When deciding whether to call a particular witness the paramount consideration is that the prosecution is expected to present its case with fairness to the defendant. The prosecutor, however, determines which witness/es he/she intends to call, and not the Court or the defence. However, in respect of 'Preliminary Investigations / Inquiries', the Director of Public Prosecutions determines which witnesses are to be called. 

The Court may however either: 

[i] make adverse findings that a particular witness should have been called by the prosecution, see R v Apostilidies (1984) 53 ALR 445; and / or 

[ii] call the witness itself.

Section 133 of the Criminal Procedure Code (Ch. 7) states: 

'Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summonsed as a witness, or recall and re – examine any person already examined, and the court shall summon and examine or recall and re – examine any such person if his evidence appears to it essential to the just decision of the case: 

Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross – examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable such cross – examination to be adequately prepared, if, in its opinion, either party may be prejudiced by the calling of any such person as a witness.' (emphasis added) 

If a Court considers that in the interests of justice it is necessary to call a particular witness, it may do so without the consent of either the prosecution or defence, see R v Wallwork (1958) 42 CrAppR 153.

[12.2] Conduct Of Proceedings 

[12.2.1] Introduction 

Section 211 of the Criminal Procedure Code (Ch. 7) provides that as regards any offence: 

[i] not triable by a Magistrates' Court. Refer also to the chapter which examines the law relating to the 'Criminal Jurisdiction of the Courts' commencing on page 14; 

[ii] as to which the Magistrate is of the opinion that it ought to be tried by the High Court; and 

[iii] where an application has been made by a 'public prosecutor' that it ought to be tried by the High Court, 

the Magistrate shall either: 

[A] commit the person so charged directly for trial to the High Court in accordance with the provisions of that section [short form] provided: 

[1] he/she considers it appropriate so to do having regard to the circumstances of the case; and 

[2] no application has been made to the contrary by the defendant or his/her advocate or by a public prosecutor; or 

[B] hold a 'Preliminary Investigation / Inquiry' in accordance with section 212 of the Criminal Procedure Code (Ch. 7) [Long Form] as outlined commencing on page 314.

The term 'Public Prosecutor' is defined in section 2 of the Criminal Procedure Code (Ch. 7) as meaning: 

'any person appointed as such under section 71 [of the Criminal Procedure Code (Ch. 7)] and includes the Director of Public Prosecutions, and any other legal officer, police officer or other person acting under the direction of the Director of Public Prosecutions.' [words in brackets added]

[12.2.2] Short Form 

By virtue of sections 211, 215 and 216 of the Criminal Procedure Code (Ch. 7), a Magistrate conducting a 'Preliminary Investigation / Inquiry' [Short Form] shall: 

[i] read over and explain to the defendant the charge in respect of which the 'Preliminary Investigation / Inquiry' is being held; 

[ii] explain to the defendant that he/she will have an opportunity later on in the 'Preliminary Investigation / Inquiry' of making a statement if he/she so desires; 

[iii] explain to the defendant the purpose of the 'Preliminary Investigation / Inquiry'; 

[iv] require the defendant to plead to the charge against him/her and record his/her plea thereto, if any. In that regard, 'Practice Direction No. 1 of 1991' issued by the Chief Justice which is outlined on page 318 should be complied with; 

[v] irrespective of the plea entered or whether a plea is entered, require the prosecution to tender to the court the statements of any witness whom it is relying on to prove the charge/s and any exhibits; 

[vi] read or cause to be read, every such statement to the defendant if he/she is unrepresented, but otherwise unless requested to do so by the defendant's lawyer; 

[vii] ask the defendant whether he/she desires to call witnesses on his/her own behalf; 

[viii] take the evidence of any witnesses called by the defendant in the same manner a 'Preliminary Investigation / Inquiry' [Long Form] and such witnesses, other than those giving solely 'Character Evidence', shall be bound by recognisance to appear and give evidence at the trial of the defendant. 

 The law relating to 'Character Evidence' is examined commencing on page 207; 

[ix] adjourn the 'Preliminary Investigation / Inquiry' if the defendant states that he/she has witnesses to call but that they are not present in court, provided he/she is satisfied that: 

[a] the absence of such witnesses is not due to any fault or neglect of the defendant; and 

[b] there is likelihood that such witnesses could, if present, give 'material evidence' on behalf of the defendant. Evidence is 'material' if it is relevant to an issue in the case, see R v Reading JJ, Ex parte Berkshire County Council [1996] 1 CrAppR 239; 

[x] issue process or takes other steps to compel the attendance of such witnesses and give evidence; 

[xi] give an opportunity to the defendant or his/her advocate to address the court; 

[xii] give the prosecution the right of reply. 

 When addressing a Magistrate, a prosecutor is expected to: 

[a] remind the Magistrate that the 'purpose' of a 'Preliminary Investigation / Inquiry' is to determine whether there is sufficient evidence to put the defendant on his/her trial by the High Court; 

[b] systematically and thoroughly outline the evidence which addresses each and every element of the charge/s; 

[c] systematically and thoroughly submit the applicable statute and common law; and 

[d] systematically and thoroughly explain how that law applies to the evidence; 

[xiii] make an order regarding the retention of exhibits; 

[xiv] commit the defendant for trial to the High Court if he/she is satisfied that there is sufficient grounds to do so after having considered the evidence; 

[xv] require the defendant to plead to the charge/s and record his/her plea. In that regard, 'Practice Direction No. 1 of 1991' issued by the Chief Justice which is outlined on page 318 should be complied with; 

[xvi] ask the defendant whether he/she: 

[a] intends to call witnesses at the trial, other than those called in the course of the 'Preliminary Investigation / Inquiry'; and 

[b] desires to give their names and addresses so that they may be summonsed; and 

[xvii] upon committing the defendant for trial to the High Court, either: 

 [a] admit him/her to bail; or 

 [b] send him/her to prison for safe-keeping.

Refer also to section 8 of the Juvenile Offenders Act (Ch. 14). 

The law relating to: 

·                     'Character Evidence' is examined commencing on page 207; 

·                     the 'Power Of A Court To Call Witnesses' is examined commencing on page 121; 

·                     'Exhibit Orders' is examined commencing on page 320; and 

·                     'Bail' is examined commencing on page 378.

See also: sections 207 ['Power to stop summary trial and hold preliminary inquiry in lieu']; 208 ['Committal by Magistrate to High Court for sentence']; 220 ['Summary adjudication'] & 232 ['Return of depositions with a view to summary trial'] of the Criminal Procedure Code (Ch. 7).

[12.2.3] Long Form 

By virtue of sections 212, 215, 216 and 219 of the Criminal Procedure Code (Ch. 7), a Magistrate conducting an 'Preliminary Investigation / Inquiry' [Long Form] shall: 

[i] at the commencement of the 'Preliminary Investigation / Inquiry' read over and explain to the defendant the charge in respect of which the investigation / inquiry is being held; 

[ii] explain to the defendant that he/she will have an opportunity later on in the 'Preliminary Investigation / Inquiry' to make a statement, if he/she so desires; 

[iii] explain to the defendant the purpose of the 'Preliminary Investigation / Inquiry'; 

[iv] in his/her presence, take down in writing, or cause to be taken down, the statements on oath of those who know the facts and circumstances of the case, referred to as depositions, including any exhibits.

 The law relating to 'Examination – in – Chief' is examined commencing on page 338; 

[v] give an opportunity to the defendant to cross – examine each witness called by the prosecution. 

The law relating to 'Cross – Examination' is examined commencing on page 346; 

[vi] record all answers given in such cross – examination; 

[vii] as the statement of each witness taken down is completed, ensure that it is read over to the him/her in the presence of the defendant, and shall if necessary, correct such statements; 

[viii] if a witness denies the correctness of any part of the statement when the same is read over to him/her, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he/she thinks necessary; 

[ix] if the statement is taken down in a language different from that in which it has been given, and the witness does not understand the language in which it is taken down, the statement shall be interpreted to him/her in a language which he/she understands. 

[x] ensure that each witness signs or attests by his/her mark their deposition; 

[xi] sign such depositions; 

[xii] if he/she considers that such statements disclose or on the evidence as it stands there are sufficient grounds for committing the defendant for trial: 

 [a] satisfy himself/herself that the defendant understands the charge; 

[b] ask the defendant whether he/she wishes to make a statement in his/her defence; 

 [c] ask whether he/she wishes to make such a statement on oath; 

[d] explain to the defendant that he/she is not bound to make a statement and that his/her statement, he/she choses to make one, will be part of the evidence at the trial; 

[e] cause everything which the defendant says, either by way of statement or evidence to be recorded in full and shown or read over to the defendant; 

[f] give the defendant an opportunity to explain or add to anything contained in the record thereof; 

[g] when the defendant is comfortable as to what he/she declares as the truth, certify that such statement or evidence was taken in his/her presence and hearing and contains accurately the whole statement mad, or evidence given, as the case may be, by the defendant; 

[h] give an opportunity for the defendant to sign or attest by his/her mark such record; 

[i] if the defendant so refuses, add a note of the defendant's refusal and the record may then be used as if the defendant had signed or attested it; 

[xiii] ask the defendant whether he/she desires to call witnesses on his/her own behalf; 

[xiv] take the evidence of any witnesses called by the defendant in like manner as in the case of the witnesses for the prosecution and such witnesses, other than those giving solely character evidence, shall be bound by recognisance to appear and give evidence at the trial of the defendant; 

[xv] adjourn the 'Preliminary Investigation / Inquiry' if the defendant states that he/she has witnesses to call but that they are not present in court, provided he/she is satisfied that: 

[a] the absence of such witnesses is not due to any fault or neglect of the defendant; and

[b] there is likelihood that such witnesses could, if present, give 'material evidence' on behalf of the defendant. Evidence is 'material' if it is relevant to an issue in the case, see R v Reading JJ, Ex parte Berkshire County Council [1996] 1 CrAppR 239;

[xvi] issue process or takes other steps to compel the attendance of such witnesses and give evidence; 

[xvii] give an opportunity to the defendant or his/her advocate to address the court; 

[xviii] give the prosecution the right of reply. 

 When addressing a Magistrate, a prosecutor is expected to: 

[a] remind the Magistrate that the 'purpose' of a 'Preliminary Investigation / Inquiry' is to determine whether there is sufficient evidence to put the defendant on his/her trial by the High Court; 

[b] systematically and thoroughly outline the evidence which addresses each and every element of the charge/s; 

[c] systematically and thoroughly submit the applicable statute and common law; and

 [d] systematically and thoroughly explain how that law applies to the evidence; 

[xix] make an order regarding the retention of exhibits; 

[xx] formally commit the defendant to the High Court if he/she is satisfied that there is sufficient grounds to do so after having considered the evidence; 

[xxi] require the defendant to plead to the charge/s and record his/her plea. In that regard, 'Practice Direction No. 1 of 1991' issued by the Chief Justice which is outlined on page 318 should be complied with; 

[xxii] ask the defendant whether he/she: 

[a] intends to call witnesses at the trial, other than those called in the course of the 'Preliminary Investigation / Inquiry'; and 

[b] desires to give their names and addresses so that they may be summonsed; and 

[xxiii] upon committing the defendant for trial to the High Court, either: 

 [a] admit him/her to bail; or 

 [b] send him/her to prison for safe-keeping.

Refer also to section 8 of the Juvenile Offenders Act (Ch. 14). 

See also: section 221 ['Complainants and witnesses to be bound over or summonsed before the High Court']; 222 ['Refusal to be bound over']; 223 ['Accused persons entitled to copy of statements of witnesses or depositions']; 224 ['Summonsing and conditionally binding over of witnesses'] & 225 ['Taking the depositions of persons dangerously ill'] of the Criminal Procedure Code (Ch. 7). 

The law relating to: 

·                     'Character Evidence' is examined commencing on page 207; 

·                     the 'Power Of A Court To Call Witnesses' is examined commencing on page 121; 

·                     'Exhibits' is examined commencing on page 320; and 

·                     'Bail' is examined commencing on page 378.

[12.3] Discretion To Exclude Evidence 

At common law, a Magistrate has no discretion in a 'Preliminary Investigation / Inquiry' to refuse to admit evidence on the grounds that its prejudicial effect outweighs its probative value, see R v King's Lynn Magistrates' Court, ex parte Holland [1993] 2 AllER 377 [(1993) 96 CrAppR 74; [1993] WLR 324; [1993] CrimLR 880] at page 380; R v Horsham Justices, Ex parte Bukhari (1981) 74 CrAppR 291; [1982] CrimLR 178; Norfolk Quarter Sessions, Ex parte Brunson [1953] 1 QB 503; [1953] 2 WLR 294; [1953] 1 QB 503; [1953] 1 AllER 346; Ipswich Justices, Ex parte Edwards (1979) 143 JP 699; R v Highbury Magistrates' Court, Ex parte Boyce (1984) 79 CrAppR 132 & R v Conway (1990) 91 CrAppR 143. 

Furthermore, the trial judge should decide whether legally admissible evidence should be excluded, though obviously a Magistrate cannot act on inadmissible evidence, see R v King's Lynn Magistrates' Court, Ex parte Holland [1993] 2 AllER 377 at page 380 & R v Phillip & R v Quayle [1938] 3 AllER 674; [1939] 1 KB 63; (1938) 36 CrAppR 200. 

Refer also to: Shaw & others v Coco (1991) 54 ACrimR 128 at page 140 & Seymour v Attorney – General (1984) 53 ALR 513 at page 540.

The law relating to the 'Admissibility Of Evidence Generally' is examined commencing on page 171.

[12.4] Amendments

Section 213 of the Criminal Procedure Code (Ch. 7) states: 

'No objection to a charge, summons or warrant for defect in substance or in form, or for variance between it and the evidence of the prosecution, shall be allowed; but if any variance appears to the court to be such that the accused person has been thereby deceived or misled, the court may, on the application of the accused person, adjourn the inquiry and allow any witness to be recalled, and such questions to be put to him as by reason of the terms of the charge may have been omitted.' 

The law relating to 'Amendments Generally' is examined commencing on page 88. 

[12.5] Pleas 

Chief Justice Ward issued the following 'Practice Direction' in relation to 'Pleas at Preliminary Investigations / Inquiries': 

PRACTICE DIRECTION NO. 1 OF 1991 

'When criminal cases are being committed for trial in the High Court, the practice has grown up for defence counsel to "reserve the plea to the High Court". This is unsatisfactory. Such cases have to be treated as contested with the result that all witnesses must be warned to attend the High Court. 

In the majority of cases defence counsel should, by the time of the committal proceedings, have taken sufficient instructions to be in a position to advise on the plea. It is only in exceptional cases this will not be possible and the plea reserved. Where that does occur, it is counsel duty to prepare the case for court without delay and, in so doing, ascertain the plea. 

In future in all committal proceedings, when the examining magistrate is told the plea is reserved, he shall advise that defence counsel must within 28 days inform the High Court of the plea to entered at the trial. If he has been unable to obtain sufficient instructions to know the plea, he must within the same 28 day period give the High Court details in writing of all steps taken to obtain instructions and the reason for his inability to ascertain the plea. This is, of course, subject to the rules of privilege between his client and himself.' 

[12.6] Discharge Of Defendant 

Section 217 of the Criminal Procedure Code (Ch. 7) provides that if after: 

[i] consideration of the evidence for the prosecution; or 

[ii] hearing any evidence for the defence, 

the Magistrate considers that the case against the defendant is not sufficient to put him/her on trial, he/she shall forthwith order the defendant to be discharged. However, such discharge shall not be a bar to any subsequent charge in respect of the same facts, provided that nothing in section 217, shall 

'prevent the court from proceeding, either forthwith, or after such adjournment of the inquiry as may seem expedient in the interests of justice, to investigate any other charge upon which the accused person may have been summonsed or otherwise brought before it, or any offence which, in the course of the charge so dismissed as aforesaid, it may appear that the accused person has committed.' 

The defence should be given an opportunity to address the Court if it is considering proceeding under this section, see R v Gloucester Magistrates' Court, Ex parte Chung (1989) 153 JP 75. 

Section 217 of the Criminal Procedure Code (Ch. 7) is consistent with section 10(5) of the Constitution because during the course of a 'Preliminary Investigation / Inquiry', a defendant is not in peril of conviction for the offence. 

A defendant may be charged with an offence which has previously been dismissed or withdrawn, subject to the discretionary power of the Court to prevent such proceedings if it vexatious or an abuse of process of the court, see R v Manchester City Stipendiary Magistrate, Ex parte Snelson [1977] 1 WLR 911; (1978) 66 CrAppR 44; [1977] CrimLR 423; R v Canterbury & St. Augustine's Justices, Ex parte Klisiak & R v Ramsgate Justices, Ex parte Warren & others [1981] 3 WLR 60; [1982] QB 398; (1981) 72 CrAppR 250 & R v Horsham Justices, Ex parte Reeves (1982) 75 CrAppR 236; [1981] CrimLR 566. 

Refer also to the law relating to: 

·                     'Double Jeopardy' which is examined commencing on page 105; and 

·                     'Abuse of Process' which is examined commencing on page 138. 

See also: section 218 ['Power to appeal to High Court for committal in certain cases where defendants are discharged'] of the Criminal Procedure Code (Ch. 7). 

[12.7] Adjournments 

Section 214 of the Criminal Procedure Code (Ch. 7) states: 

'If, from the absence of witnesses or any other reasonable cause to be recorded in the proceedings, the court considers it necessary or advisable to adjourn the inquiry, the court may from time to time by warrant remand the accused for a reasonable time, not exceeding fifteen clear days at any one time, to some prison or other place of security. Or, if the remand is for not more that three days, the court may be word of mouth order the officer or person in whose custody the accused person is, or any other fit officer or person, to continue to keep the accused in his custody, and to bring him up at the time appointed for the commencement or continuance of the inquiry. 

During a remand the court may at any time order the accused to be brought before it. 

The court may on a remand admit the accused to bail.' 

The law relating to 'Adjournments Generally' is examined commencing on page 392. 

[12.8] Defendants Of Unsound Mind 

Section 144(1) of the Criminal Procedure Code (Ch. 7) states: 

'When in the course of a […] preliminary investigation the court has reason to believe that the accused is of unsound mind so that he is incapable of making his defence, it shall inquire into the fact of such unsoundness.' (emphasis added) 

See also: sections 144 to 149 of that Code. 

[12.9] Exhibits 

In R v Lambeth Metropolitan Stipendiary Magistrate and another, Ex parte Mc Comb (1983) 76 CrAppR 246 [[1983] 2 WLR 259; [1983] QB 551; [1983] CrimLR 266] the Master of Rolls, delivering the judgment of the Court, held at page 250: 

'[O]nce an article has become an exhibit, the court has a responsibility in relation to it. That responsibility is to preserve and retain it, or to arrange for its preservation and retention, for the purposes of justice. The purposes of justice are to ensure that the accused is convicted if guilty and is acquitted if innocent. I would accept that this is the position and would further accept that the usual course is for the court to entrust the exhibits to the police or to the Director subject to the same responsibility. That responsibility was defined by Griffiths LJ in the instant [Lushington, Ex parte Otto (1894) 1 QB 420], (2) to co-operate with the defence in order to allow them reasonable access to the exhibits for the purpose of inspection and examination, and (3) to produce the exhibits at the trial. 

May LJ commented at page 254: 

'Clearly once the magistrate has committed for trial he is functus and therefore has no further power in relation to the exhibits.' 

[12.10] Hostile Witness 

In R v Mann (1972) 56 CrAppR 750; [1972] CrimLR 704 the Court of Appeal held: 

Where a witness displays evidence of hostility during a 'Preliminary Investigation / Inquiry', there is no rule which requires the prosecution then and there to treat the witness as 'hostile'. 

The law relating to 'Hostile Witnesses' is examined commencing on page 288.