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Chapter 6: General Duties of the Prosecution

Table Of Contents 

[6.0] Institution Of Proceedings 

[6.0.1] Introduction 

In Rubin v Director of Public Prosecutions (1989) 89 Cr AppR 44 Watkins LJ, with whom Potter J concurred, stated at pages 47 – 48: 

'It is, I […] believe, […] well established that, generally speaking, any member of the public may lay an information. There are statutory exceptions to that right and in some instances consent to prosecute has to be obtained from a specified authority. But in the vast majority of cases it is a member of the public who informs and with rare exceptions that member of the public is a constable. 

Obviously a constable is no ordinary member of the public. A member of a police force, though he be of the rank of sergeant or above, including chief constable [ie., Commissioner], is nevertheless a constable – see Halsbury's Laws of England (4th ed.), vol. 36, paragraph 201 where it is stated: 

"The common law constable. The history of the police is the history of the office of constable and, notwithstanding that present day police forces are the creation of statute and that the police have numerous statutory powers and duties, in essence a police force is neither more nor less than a number of individual constables, whose status derives from the common law, organised together in the interests of efficiency." 

[…] 

And at paragraph 32: 

"General functions of constables. The primary function of the constable remains, as in the seventeenth century, the preservation of the Queen's peace. From this general function stems a number of particular duties additional to those conferred by statute and including those mentioned hereafter. The first duty of a constable is always to prevent the commission of a crime. If a constable reasonably apprehends that the action of any person may result in a breach of the peace it is his duty to prevent that action. It is his general duty to protect life and property. The general function of controlling traffic on the roads is derived from this duty." 

Furthermore, it cannot I think be doubted that it is the duty of every chief constable of police (the chief constable) to enforce the law of the land. It is for him to decide, subject to certain exceptions, whether or not there should be a criminal prosecution following apprehension of a suspected offender in the circumstances of any particular case or in accordance with a policy adopted or devised or formulated by him. 

So the constable's duty is to strive to keep the peace, to enforce the law and to prosecute suspected offenders. It needs hardly to be said that the chief constable delegates much of his power to decide whether there shall be a prosecution to other constables in his force of lower rank. But the power so delegated remains his power. Hence, there can be no denying his right to lay an information no matter who is the actual informant from within his force; likewise the right of any of his officers to perform that act who have the requisite delegated power from him. Such a person may be of any rank from constable upwards.' [words in brackets added] 

In Johnson v Phillips [1975] 3 AllER 682 [[1976] 1 WLR 65; [1975] CrimLR 580] Wein J, delivering the judgment of the Court, stated at page 685: 

'The first function of a constable has for centuries been the preservation of the peace. His powers and obligations derive from the common law and from statute. It is his general duty to protect life and property: see Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270 where Viscount Finlay said, at page 285: "There is no doubt that it is the duty of the police to give adequate protection to all persons and their property". […] 

The powers and obligations of a constable under the common have never been exhaustively defined and no attempt to do so has ever been made: see, for example, R v Waterfield [1964] 1 QB 164 where Ainsworth J, who delivered the judgment of the court, said at page 170: "… it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed". Also there is the case of Rice v Connolly [1966] 2 QB 414, where Lord Parker CJ said at page 419: 

"It is also my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those […]."' (emphasis added) 

See also: Hickman v O'Dwyer [1979] CrimLR 309; King v Hedges [1974] CrimLR 424; Coffin & another v Smith & another (1980) 71 CrAppR 221 & R v Reid, Vickers & Forbutt (No. 2) (1981) 2 ACrimR 28.

Upon the determination of the identity of a person who has committed an offence, police officers must then decide whether to institute proceedings against such a person. 

A prosecution is commenced with the 'institution of proceedings' in accordance with section 70 of the Criminal Procedure Code (Ch. 7). 

See also: R v O'Connor [1913] 1 KB 557; (1913) 8 CrAppR 167; Thorpe v Priestnall [1897] 1 QB 159 & R v West [1898] 1 QB 174. 

If proceedings are instituted against a defendant without first deciding whether to prosecute, then any further proceedings against such a defendant may amount to an 'abuse of process', see R v Newcastle upon Tyne JJ, Ex parte Hindle [1984] 1 AllER 770 & R v Brentford J, Ex parte Wong (1981) 73 CrAppR 65. 

In Mills v Cooper [1967] 2 QB 459 Lord Parker CJ stated at page 467 and in Director of Public Prosecutions v Humphrys (1976) 63 CrAppR 95; [1977] 1 AC 1 [[1976] 2 WLR 857; [1976] 2 AllER 497] Lord Salmon stated at pages 122 and 46 respectively: 

'[A] judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of process of the court and is oppressive and vexatious that the judge has the power to intervene.' 

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

Section 76 of the Criminal Procedure Code (Ch. 7) states: 

'(1) Proceedings may be instituted either by the making of a complaint or by the bringing before a Magistrate of a person who has been arrested without warrant. 

(2) Any person who believes from a reasonable and probable cause that an offence has been committed by any person may make a complaint thereof to a Magistrate having jurisdiction to cause such person to be brought before him. 

(3) A complaint may be made orally or in writing, but, if made orally, shall be reduced to writing by the Magistrate, and, in either case, shall be signed by the complainant and the Magistrate: 

Provided that where proceedings are instituted by a police or other public officer acting in the course of his duty, a formal charge duly signed by such officer may be presented to the Magistrate and shall, for the purposes of this Code, be deemed to be a complaint. 

(4) The Magistrate, upon receiving any such complaint, shall, unless such complaint has been laid in the form of a formal charge under the preceding subsection, draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged. 

(5) When an accused person who has been arrested without warrant is brought before a Magistrate, a formal charge, containing a statement of offence with which the accused is charged, shall be signed and presented by the police officer preferring the charge.' (emphasis added) 

The term 'Complaint' is defined in section 2 of the Criminal Procedure Code (Ch. 7) as meaning 'an allegation that some person known or unknown has committed an offence'. 

The decision to institute proceedings should never be taken lightly. 

Section 155 of the Criminal Procedure Code (Ch. 7) states: 

'If on the dismissal of any case any court shall be of opinion that the charge was frivolous or vexatious, such court may order the complainant to pay to the accused person a reasonable sum as compensation for the trouble and expense to which such person may have been put by reason of such charge.' (emphasis added) 

The law relating to the 'Proof Of Issues' is examined commencing on page 68. 

[6.0.2] Decision To Institute Proceedings 

Section 5(1) of the Constitution states (in part): 

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

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

Section 10 of the Constitution states (in part): 

'(5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal. 

(6) No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.' 

The law relating to 'Double Jeopardy' is examined commencing on page 105. 

Section 23 of the Police Act (Ch. 110) states: 

'It shall be lawful for any police officer to make a complaint or charge any person before a Magistrate and to apply for a summonses, warrant, search warrant or such other legal process as may by law issue against any person.'

When considering prosecutions under the Traffic Act (Ch. 131), section 75 of that Act must be considered. That section states: 

'Where a person is prosecuted for an offence under any of the sections of this Act relating respectively to the maximum speed at which motor vehicles may be driven, to reckless or dangerous driving or to careless driving, he shall not be convicted unless – 

(a)                he was warned at the time the offence was committed that the question of prosecuting him for an offence under some or other of the sections aforesaid would be considered; or 

(b)               within fourteen days of the commission of the offence a summons for the offence was served on him; or 

(c)                within the said fourteen days a notice of the intended prosecution, specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was served on or sent by registered post to him or to the person registered as the owner of the vehicle at the time of the commission of the offence: 

Provided that – 

(i)                 failure to comply with this requirement shall not be a bar to the conviction of the accused in any case where the court is satisfied that – 

(a)                neither the name and address of the accused nor the name and address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time for a summons to be served or for a notice to be served or sent as aforesaid; or 

(b)               the accused by his own conduct contributed to the failure; 

(ii) the requirement of this section shall in every case be deemed to have been complied with unless and until the contrary is proved.' (emphasis added) 

Refer also to the chapter which examines 'Power Of Arrest' commencing on page 242. 

Prior to instituting proceedings, a police officer should be satisfied on reasonable suspicion that: 

[i] an offence has been committed; 

[ii] each and every element of intended charge/s can be proven, see for example John Solo v R (Unrep. Criminal Appeal Case No. 89 of 2000; Kabui J; at page 8). Refer also to the section titled 'Elementising Charges' on page 73;

[iii] the person against whom prosecution is proposed has committed the offence/s. 

Section 10(2)(a) of the Constitution states: 

'Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.' (emphasis added); 

[iv] consent of the Director of Public Prosecutions to prosecute has been obtained, if required, see R v Bull (1994) 99 CrAppR 193. See for example, section 126 of the Criminal Procedure Code (Ch. 7), section 39(3) of the Dangerous Drugs Act (Ch. 98) [R v Robert Maebinua (Unrep. Criminal Review Case No. 160 of 1999; Kubui J; at page 7) & R v Fofei Fiuwane (Unrep. Criminal Review Case No. 355 of 1999; Kabui J; at page 1)] & section 126 of the Criminal Procedure Code (Ch. 7). 

 However, the consent need not be in writing, unless specified in a specific statute, see R v Jackson [1997] CrimLR 293 and see for example, section 44 of the Liquor Act (Ch. 144). Upon consent being given it can be assumed that all necessary and proper inquiries were made prior to giving that consent, see R v Cain & Schollick [1976] QB 496; (1975) 61 CrAppR 186 [[1975] 3 WLR 131; [1975] 2 AllER 900; [1976] CrimLR 464], per Lord Widgery CJ at pages 502 – 503 and 190 respectively. 

Section 44 of the Interpretation & General Provisions Act (Ch. 85) states: 

'Where the consent of an authority is necessary before any proceedings, whether civil or criminal, are commenced, a document giving the consent and purporting to be signed by the authority is evidence that the consent has been given, without proof that the signature to the document is that of the authority.' 

 See also: R v Angel [1968] 2 AllER 607; [1968] 1 WLR 669; (1968) 52 CrAppR 280; 

 and 

[v] there is no statutory limitation on such proceedings. The law relating to the 'Limitation of Time' is examined commencing on page 100. 

When the circumstances of a particular case indicate that two or more alternative charges are supportable, the offence carrying the greater penalty should be preferred, subject to any express directions of the Director of Public Prosecutions, see section 74 of the Criminal Procedure Code (Ch. 7). 

Care should be taken to select an offence that accurately reflects the nature and extent of the criminal behaviour under investigation, thereby providing the court with the option of imposing a penalty commensurate with the criminal conduct. 

In Michael Buruka v R (Unrep. Criminal Appeal Case No. 31 of 1991) Muria J commented at page 3: 

'The prosecution must never allow themselves to be too ready to make concessions for lesser charges simply because evidence, such as in this case, […], are not readily available. Such a practice is a breading ground for injustice.' 

Refer also to the section which examines the law relating to the 'Responsibility Of The Prosecution To Prefer All Charges' on page 77. 

When arresting officers are making a decision to institute proceedings they are to ensure that their decision is not influenced by matters such as: 

[i] the race, religion, gender, ethnicity or political affiliations of the offender, the complainant or any other person involved; 

[ii] any personal feelings or bias towards the offender or the victim; 

[iii] a possible political advantage or disadvantage to the Government or any interest group; or 

[iv] a fear of career or personal disadvantage or any career advantage on the part of the person making the prosecution decision. 

[6.1] Discretion To Prosecute 

[6.1.1] Introduction 

Section 10(4) of the Constitution states: 

'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.' (emphasis added) 

The exercise of the discretion to prosecute involves applying two distinct tests in relation to the matter under consideration. Those two tests are: 

[i] 'Sufficiency of Evidence Test'; and 

[ii] 'Public Interest Test'. 

Refer also to the law relating to 'Abuse Of Process' commencing on page 138. 

[6.1.2] Sufficiency Of Evidence Test 

The 'primary test' is that of 'Sufficiency of Evidence'. This test will be satisfied if there is a reasonable prospect of the defendant being found guilty. A prima facie case is essential but is not the only matter of consideration for instituting a prosecution. The decision to prosecute requires a careful and detailed evaluation of how strong the case will be when presented in court. 

In evaluating the sufficiency of evidence in respect of any matter, it is necessary to consider all aspects of the evidence to be presented, including: 

[i] admissibility of evidence. That legal issue is examined commencing on page 171; 

[ii] reliability of evidence, including identification; 

[iii] possible defences. The law relating to 'Criminal Responsibility' is examined commencing on page 428; 

[iv] the extent of any conflicts in evidence between witnesses; 

[v] competency of witnesses. That legal issue is examined commencing on page 281; 

[vi] if there is a lack of conflict between witnesses, does anything else effect the credibility of the witnesses; 

[vii] the availability of witnesses. The law relating to 'Securing The Attendance Of Witnesses' is examined commencing on page 276; and 

[viii] whether witnesses will be hostile, adverse, or uncooperative. That legal issue is examined commencing on page 288.

Section 23 of the Criminal Procedure Code (Ch. 7) states: 

'[A]n officer of or above the rank of sergeant may release a person arrested on suspicion on a charge of committing any offence, when, after due inquiry, insufficient evidence, is in his opinion, disclosed on which to proceed with the charge.' (emphasis added) 

If an officer authorized under section 23 of that Code is considering releasing a defendant, he/she is to: 

[a] consider the 'Sufficiency of Evidence' test. Under no circumstances are such officers to release a defendant based on a 'Public Interest' consideration as outlined in the 'Public Interest Test' commencing on this page; and 

[b] report as soon as it is reasonably possible the release to: 

[i] the Officer – in – Charge of their respective Prosecutions Office; and 

[ii] the nearest Magistrate, in compliance with section 24 of the Criminal Procedure Code (Ch. 7). 

See also: section 22 of the Criminal Procedure Code (Ch. 7). 

[6.1.3] Public Interest Test 

Once the 'Sufficiency of Evidence' test has been satisfied, the next test to be applied is that of the 'Public Interest'. 

This test simply involves determining whether, in light of the probable facts and the whole of the surrounding circumstances of the case, the 'public interest' will be served in pursuing a prosecution. It is not the rule that all offences brought to the attention of the Royal Solomon Islands Police Force must be prosecuted. 

The factors which can properly be taken into account in deciding whether the 'public interest' requires a prosecution will vary from case to case. While many public interest factors mitigate against a decision to proceed with a prosecution, there are public interest factors which operate in favour of proceeding with a prosecution, such as for example, the seriousness of the offence and the need for deterrence. In this regard, generally, the more serious the offence the more likely it will be that the matter of public interest will require a prosecution to be pursued. 

Factors which may alone or in conjunction arise for consideration in determining whether the public interest requires a prosecution include: 

[i] the seriousness or, conversely, the triviality of the alleged offence or that it is of a 'technical' nature only; 

[ii] any mitigating or aggravating circumstances; 

[iii] the youth, advanced age, intelligence, physical health, mental health or special infirmity of the alleged offender, a witness or a victim; 

[iv] the alleged offender's antecedents and background, including culture and ability to understand the language; 

[v] the degree of culpability of the alleged offender in connection with the offence; 

[vi] whether the prosecution would be perceived as counter – productive to the interests of justice; 

[vii] the availability and efficacy of any alternatives to prosecution such as 'Reconciliation'. The law relating to 'Reconciliation' is examined commencing on page 952; 

[viii] the prevalence of the alleged offence and the need for deterrence either personal or general; 

[ix] whether or not the alleged offence is of minimal public concern; 

[x] any entitlement of the victim or other person or body to criminal compensation, reparation or forfeiture, if prosecution action is taken; 

[xi] the attitude of the victim of the alleged offence to a prosecution with regard to the seriousness of the alleged offence and whether the complainant's change of attitude has been activated by fear or intimidation. The law relating to 'Hostile Witnesses' is examined commencing on page 288; 

[xii] the cost of the prosecution relative to the seriousness of the alleged offence; 

[xiii] whether the alleged offender is willing to co - operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so, particularly those dealing with indemnity from prosecution; 

[xiv] the necessity to maintain public confidence in such institutions as the Parliament and the courts; 

[xv] the outcome of any other prosecution from the same circumstances, including in a civil jurisdiction; 

[xvi] whether the prosecution for that class or type of offence has been discouraged by the courts in the course of judicial comment; 

[xvii] whether the prosecution will result in hardship to any witness, particularly children; 

[xviii] vexatious, oppressive or malicious complaints; and 

[xix] whether the prosecution would amount to an 'abuse of process'. The law relating to an 'Abuse Of Process' is examined commencing on page 138. 

[6.2] Authority To Prosecute 

The following provisions of the Criminal Procedure Code (Ch. 7) deal with the authority of a police officer to prosecute cases: 

Section 71 states (in part): 

'The Director of Public Prosecutions may appoint any […] police officer to be a public prosecutor either generally or for the purposes of a particular case.' (emphasis added) 

Section 73 states: 

'In any trial or inquiry before a Magistrates Court, if the proceedings have been instituted by a police officer, any police officer may appear and conduct the prosecution notwithstanding the fact that he is not the officer who made the complaint or charge.' 

Section 74 states: 

'Every police officer conducting a prosecution under the provisions of section 73, and every public prosecutor, shall be subject to the express directions of the Director of Public Prosecutions.' 

[6.3] General Prosecution Responsibilities 

Prosecutors as representatives of the Royal Solomon Islands Police Force are expected to act professionally and ethically at all times in the performance of their duties. 

Prosecutors are expected to: 

[i] abide by the law when prosecuting cases; 

[ii] obey the 'directions of a Magistrate in the exercise of his/her criminal jurisdiction' in compliance with section 58 of the Magistrates' Courts Act (Ch. 20). See also: section 21(3) of the Police Act (Ch. 110); 

[iii] be punctual at court. The law relating to 'Punctuality At Court' is examined commencing on page 126; 

[iv] be prepared, ie., understanding the evidence to be presented and the legal issues to be considered;

[v] show respect, and not just to the Court and witnesses, but also defendants; 

[vi] ensure that all appropriate action is being undertaken to secure the attendance of all known and reliable witnesses, irrespective of whether or not all such witnesses will be called by the prosecution.

 The law relating to: 

·                     'Securing The Attendance Of Witnesses' is examined commencing on page 276; and 

·                     the 'Discretion Of The Prosecution To Call Witnesses' is examined commencing on page 120; 

[vii] present their case fairly, impartially and professionally and therefore, in strict compliance with the law; 

[viii] assist the Court in arriving at the truth by producing all the relevant facts to the Court as 'Officers of the Court', see R v Kelly Dennie, Kenazo Maeka & Teddy Weba (Waiba) (Unrep. Criminal Appeal Case No. 12 of 1998; Kabui J; at page 5) & R v Guerin (1931) 23 CrAppR 39; 

[ix] not obtain a conviction by all means, but fairly and impartially endeavour to ensure that the Court has before it all the relevant facts in an intelligible form; 

[x] ensure that the Court is informed of all known relevant law whether the effect is favourable or unfavourable towards the prosecution case; 

[xi] be prepared to correct any error or misstatement by the defence; 

[xii] generally assist the Court to avoid any appealable error; and 

[xiii] 'assist [… the Court] in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defence case so far as it appears to require it' as stated by Kapi J in Acting Public Prosecutor v Uname Aumane & others [1980] PNGLR 510 at page 544. [words in brackets added] 

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

In R v Niger Pitisopa (Unrep. Criminal Appeal Case No. 120 of 1999) Kabui J commented at pages 8 – 9: 

'It is in the public interest that criminal charges against accused persons be dealt with by the Courts as soon as possible. It is the duty of the Crown to ensure that the process of criminal law justice is activated in a manner that is consistent with the provisions of section 10 of the Constitution. In the court room situation, it means the Crown Prosecutor [and all police prosecutors] must ensure that the accused is brought to the Court as soon as possible to plead to the charge laid against him. Once that process is set into motion, the Crown Prosecutor is completely in charge of the conduct and progress of the case until the trial is completed. It means the attendance of the Crown Prosecutor during the course of the trial is maintained at all times subject to adjournments. It means the Crown Prosecutor must ensure that the criminal trials under his charge are paramount in his mind. He attributes nothing to the Court or Counsel for the Defence for the progress or lack of progress of his case. He must not allow the Court to wait on him at all times. He must get to the Court house in good time before the Court sits. He must [not] stay up [late] at night or engage in any activity that is likely to interfere with Court appointed time. He must be self – disciplined and efficient in his work. The good Crown Prosecutor is a man of integrity and honour in the community. His words are laced with truth and sincerity. He sets an example to others. He never fails the Court unless he falls dead. That is the kind of standard I would expect from a good Crown Prosecutor in Solomon Islands.' (emphasis added) [words in brackets added] 

In R v Banks [1916] 2 KB 612; (1917) 12 CrAppR 74 Avory J, delivering the judgment of the Court of Criminal Appeal, commented at pages 623 and 76 respectively: 

'Counsel for the prosecution throughout a case ought not to struggle for the verdict against the prisoner, but they ought to bear themselves rather in the character of ministers of justice assisting in the administration of justice.' 

In R v Sugarman (1985) 25 CrAppR 109 Lord Hewart CJ, delivering the judgment of the Court, stated at pages 114 – 115:

'It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done. It would be deplorable if any counsel for the Crown should refuse to stand on the real strength of his case and think that he can strengthen and support it by things collateral in a manner contrary to the letter and spirit of English law. By doing so he can only weaken his case and may prevent a verdict which ought otherwise to be obtained.' 

Refer also to the Chapter which examines 'Fundamental Rights & Freedoms' commencing on page 144. 

[6.4] Discretion To Call Witnesses 

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. 

But, the Court may 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, see R v Dora Harris [1927] 2 KB 587; R v Cleghorn (1967) 51 CrAppR 291; [1967] 2 QB 584; [1967] 2 WLR 1421; [1967] 1 AllER 996 & R v Roberts (JM) (1985) 80 CrAppR 89. 

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. 

In R v Kwatefena [1983] SILR 106 Daly CJ held at pages 107 – 108 that the power of the Court to call a witness should be 'used sparingly and rarely exercised […] particularly when the witness gives the evidence in support of the prosecution case'. 

Furthermore, the discretion to recall a witness by a Court should only be exercised if no injustice will result, see R v McKenna (1956) 40 CrAppR 65 & R v Sullivan [1923] 1 KB 47; (1922) 16 CrAppR 121. 

The discretion to call a particular witness by the prosecution will invariably depend on a number of considerations, including whether: 

[i] the evidence of the witness is essential to the unfolding of the prosecution case; 

[ii] the evidence of the witness will be credible and truthful. The law relating to 'Hostile Witnesses' is examined commencing on page 288; 

[iii] in the interests of justice that evidence should be subject to cross – examination by the prosecution; or 

[iv] the evidence of the witness will be repetitious such as corroborating police officers in some instances. 

The prosecution however has no duty: 

[i] to call any particular witness; or 

[ii] to give reasons as to why a particular witness was not called, see Lanamua v R (Unrep. Criminal Case No. 27 of 1992; Palmer J), but should do so as a matter of course by asking the appropriate questions of the Arresting / Investigating Officer.

Prior to making a decision not to call a particular witness, prosecutors are to: 

[i] consult with the Arresting / Investigating Officer; and 

[ii] seek advice if there is still doubt as to whether to call the particular witness. However, the benefit of any such doubt should be given to the defendant.

The prosecution should advise the defence prior to court of the identity and whereabouts of any witness who can give 'material evidence' and who will not be called. Evidence is material if it is relevant to an issue in the case, see R v Reading JJ, Ex parte Bershire County Council [1996] 1 CrAppR 239. 

Furthermore, as regards those witnesses who are considered reliable by the prosecution, all reasonable steps should be taken by the prosecution in an attempt to secure their attendance, if the defence intends to call those witnesses. If such witnesses are still unavailable to give evidence at trial, the Court may either: 

[i] grant an adjournment so that a further attempt can be made to secure their attendance.  

The law relating to 'Securing The Attendance Of Witnesses' is examined commencing on page 276; 

[ii] issue a warrant for the arrest of those witnesses in appropriate circumstances; or 

[iii] direct that the trial proceed provided that no injustice would be done, see R v Ondhia [1998] 2 CrAppR 150; R v Gundem [1997] CrimLR 903 & R v Cavanagh [1972] 56 CrAppR 407. 

Refer also to the law in relation to the 'Disclosure Of Prosecution Evidence To Defence' which is examined commencing on page 134. 

In Lanemua v R (Unrep. Criminal Case No. 27 of 1992) Palmer J commented at pages 5 - 6: 

'The starting point must be to recognise that Prosecution has the discretion whether to call its witnesses or not. 

[…] 

In the case of Horace Henry Bryant v Reginam [1946] 31 CrAppR 146, it recognises that prosecution has a duty to make a person who can give material evidence available to defence to call as a witness if they decide not to call him. But that is as far as that duty goes. They are not under a duty to supply a copy of that witness statement. Defence can ascertain from that witness his/her evidence themselves. Prosecution is not under a duty to give a reason as to why they decided not to call their witness. There is a duty however, to make that witness available to the defence.' 

In R v Russell – Jones [1995] 1 CrAppR 538 [[1995] 3 AllER 239] the Court of Appeal held at pages 544 – 545:

'(1) […]; 

(2) The prosecution enjoy a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered. 

(3) The first principle which limits this discretion is that it must be exercised in the interests of justice, so as to promote a fair trial. […] 

See also per Fullagar J in Ziems v the Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 292: 

"The present case, however, seems to me to call for a reminder that the discretion should be exercised with due regard to traditional considerations of fairness." 

The dictum of Lord Thankerton in the Palestine case "the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive" does not mean that the Court will only interfere if the prosecutor has acted out of malice; it means that the prosecutor must call his mind to his overall duty of fairness, as a minister of justice. Were he not to do so, he would have been moved by a consideration not relevant to his proper task – in that sense, an oblique motive. 

Clearly, however, to say merely that the prosecutor must act fairly gives little guidance as to how the discretion should be exercised in practice; and there are further limiting principles: 

(4) The next principle is that the prosecution normally ought to call or offer to call the witness who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness's evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say "incredible", then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called. 

[…] 

(5) It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case. A prosecutor may reasonably take the view that what a particular witness has to say is at best marginal. 

(6) The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others. 

(7) A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown's own case. No sensible rule of justice could require such a stance to be taken. 

Plainly, what we have said should not be regarded as a lexicon or rule book to cover all cases in which a prosecutor is called upon to exercise this discretion. There may be special situations to which we have not adverted; and in every case, it is important to emphasise, the judgment to be made is primarily that of the prosecutor, and, in general, the court will only interfere with it if he has gone wrong in principle.' (emphasis added) 

In Whitehorn v R (1983) 9 ACrimR 107; [(1983) 57 ALJR 809] Deane J stated at pages 110 – 111: 

'Prosecuting counsel in a criminal trial represents the State. The accused, the Court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. […] 

[..] 

The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations.' (emphasis added) 

At page 199, Dawson J stated: 

'Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eyewitnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eyewitness, who evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. 

It will be seen from the above citations that the responsibility of prosecuting counsel at the trial would by no means be discharged by calling the minimum number of witnesses required to establish the charge. He would be expected to call all the material witnesses unless there were good reasons of the kind discussed in the cases for not calling any of them.' (emphasis added) 

See also: R v Haringey Justices, Ex parte Director of Public Prosecutions [1996] 1 AllER 828; [1996] 2 CrAppR 119; R v Apostilidies (1984) 53 ALR 445; Richardson v R (1974) 131 CLR 116 & Harry, Ex parte Eastway (1986) 20 ACrimR 63. 

In R v Cavanagh & Shaw (1972) 56 CrAppR 407 Lane J, delivering the judgment of the Court, held at page 411: 

'The prosecution must take all reasonable steps to secure the attendance of any of their witnesses who are not the subject of a conditional witness order or whom the defence might reasonably expect to be present. […] 

If, however, it proves impossible, despite such steps, to have the witnesses present, the court may in its discretion permit the trial to proceed provided that no injustice will be done thereby. What considerations will affect the exercise of the court's discretion will vary infinitely from case to case. Would the defence wish to call the witness if the prosecution did not? What are the chances of securing the witness's attendance within a reasonable time? Are the prosecution prepared to proceed in his absence? If so, to what extent would the evidence of the absent witness have been likely to assist the defendant? If the absent witness can be procured, will other witnesses by then have become unavailable? There will be many other matters which may have to be considered.' 

In Steven Lolo v Michael Hambindua [1985] PNGLR 286 Pratt J, sitting alone, held: 

Although there is no rule of practice which requires a prosecutor or a court to assist a defendant to present his/her case, there is however a duty on the prosecutor to bring out all the facts whether they be in favour of or against the prosecution case and especially where: 

(a)                the defendant is unrepresented; 

(b)               the legislation casts a specific onus on the defendant; and 

(c)                the defendant gives evidence on oath. 

The law relating to: 

·                     'Negative Averments' is examined commencing on page 83; and 

·                     'Witnesses Generally' is examined commencing on page 274. 

The law relating to 'The Duty Of The Prosecution To Call Witnesses At Preliminary Investigations / Inquiries' is examined commencing on page 310. 

[6.5] Order To Call Witnesses 

Prior to determining the 'order' in which to call witnesses, there should be consultation between the assigned prosecutor and the Arresting / Investigating Officer.

Essentially witnesses should be presented in a logical sequence. This can be achieved by calling the Arresting / Investigating Officer first in order to: 

[i] outline any admission made or defence raised by the defendant; and 

[ii] produce exhibits relevant to the charge/s, 

followed by the other witnesses in chronological order. 

It must never be forgotten that the Court generally will have no idea about the prosecution case. 

In Saffron v R (1988) 17 NSWLR 396 the Court held at page 457: 

'There is no rule of law, absent some relevant statutory provision, that requires a judge (even if he has the power) to reject evidence tendered by the Crown because of the order in which the witnesses are called.' 

There is no such statutory provision applicable to Solomon Islands. 

The law relating to: 

·                     the 'Prosecution's Discretion To Call Witnesses' is examined commencing on page 120; and 

·                     'Exhibits' is examined commencing on page 237. 

[6.6] Punctuality At Court 

[6.6.1] Section 187 -- Criminal Procedure Code 

Section 187 of the Criminal Procedure Code (Ch. 7) states: 

'(1) If, in any case which a Magistrate's Court has jurisdiction to hear and determine, the accused person appears in obedience of the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his advocate, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit. 

(2) The expression "advocate" in this section […] shall in relation to a complainant include a public prosecutor.' (emphasis added) 

In Hudson Maenu & others v R (Unrep. Criminal Appeal Case No. 23 of 1998) Palmer J stated at pages 2 – 5: 

'Of-course if a prosecutor or complainant does not turn up, no reason can be given or submitted to the court. I do not think the accused person or his advocate would seek to provide any reason either. Yet, the legislation includes the phrase, "unless for some reason it shall think it proper to adjourn". Either that phrase is superfluous and unnecessary or it had been included for a purpose. In my respectful view, if the phrase is read with some care, it will be seen that the answer or explanation is contained within the phrase itself. It is for the court to determine whether there is some reason it considers proper to have the case adjourned: "unless for some reason it (the court) shall think it proper to adjourn the hearing of the case …". Whether any reasons are given or not (of course if the prosecutor or complainant has not turned up, then no reasons can be given) make no difference to the power of the court to decide whether for some reason it considers it proper to adjourn the case. It does not matter that the prosecutor or complainant is not present to make submissions and the accused person or his advocate refuses to give any reasons. If the court for some reason shall think it proper to adjourn the hearing of the case then it may do so upon such terms as it thinks fit. The meaning of this phrase is crystal clear and should not unnecessarily restricted. 

[…] 

I might add that the mere fact a prosecutor does not turn up in court does not necessarily imply that a Magistrate must dismiss the charge before him when an application is made or in the exercise of his own discretion. A Magistrate must appreciate that his discretion is to be exercised judicially. Under section 186(1) [now section 187] he is required to look at the circumstances of the case and to weigh the balance of justice before dismissing a charge. At the back of his mind he must bear in mind the possibility that a prosecutor may be deliberately turning up late or not turning up, so that the case is dismissed under the said section. In such situations, the answer lies not in activating section 186(1) but in disciplinary actions against the particular prosecutor. This can be done in a number of ways. Either a warning is issued or the prosecutor charged for contempt of court, or a complaint is lodged with his head of section. For police prosecutors it can be with the Commissioner of Police, and Crown Counsels with the Director of Public Prosecution. If nothing is done then perhaps the matter can be taken further with other authorities; the Honourable Chief Justice for instance. 

Also I must add a caution here that acquittals under this section must be exercised with great care. There must be a very good reason or reasons for acquittals and the Magistrate must state his reasons on record when acquitting the accused person rather than the more usual order of discharge. In other words, acquittals must be made only in exceptional cases. 

In the facts of this case, even if the learned Magistrate were to give his ruling on the application that morning, the proper order in any event in my respectful view would have been a straight refusal. The facts evident in that case do not warrant a dismissal for non – appearance. The case had been adjourned for mention only. The court could easily have adjourned the case further to a later date and require [… prosecutor] to turn up and explain his non – appearance. The Appellants would not have been prejudiced in any way. They had been on bail with conditions. If the bail terms were unsatisfactory then they could easily have instructed Counsel to apply for a variation. The case cannot be classes as coming within the expression "Justice delayed is justice denied". That phrase with respect must be qualified. Justice is denied only when delay is inordinate or excessive. Sometimes delay is inevitable, or justifiable. We live in a time zone where delay is part and parcel of our daily experience. Even when I am speaking right now, time passes and delay is already experienced. By far, it cannot be ever seriously contended that inordinate delay or excessive delay had been experienced in this case. It wasn't the case where Mr Tulasasa had consistently been late or had not been turning up for this case. The case was only in its initial stages. There had only been two previous appearances by police prosecutors and this was to be the first time for an Officer from the DPP's Office to turn up. There had been no previous absences by the police prosecutors or [… complainants] of lateness or slackness. Mistakes and oversights are bound to happen. I ask should such a mere oversight justify the dismissal and acquittal of the accused persons. In my respectful view a resounding no. Anything to the contrary would have worked injustice than anything else. 

Further, the facts of the case are very serious. […] 

Finally, courts must be wary of not sacrificing the substance and merits of a case for mere procedural blunders and oversights.' (emphasis added) [words in brackets added] 

Howewer, in R v Elizah D Muala (Unrep. Criminal Appeal Case No. 17 of 1994) Muria CJ stated at pages 3 – 4: 

'[The Court referred to section 186 of the Criminal Procedure Code (Ch. 7), now section 187.] 

It will be observed that subsection (1) contains a language of a mandatory nature. The reason for such language to be used is not difficult to see since an accused person does not come to court on his own initiative or at the court's instigation. He is brought before the Court as a result of a complaint made against him. In consequences of that complaint, the accused is summonsed to appear in Court and if he appears in Court at the time, place and date fixed for the hearing and determination of that complaint and the complainant does not appear, then it is only a matter of good sense and justice that the complaint be thrown out and the accused be given his liberty and allowed to go free. 

[…] 

The words "unless for some reason" in section 186 must be given their natural meaning and as such they simply mean unless there is some reason. Under that section therefore, the Court should dismiss a charge brought against an accused if the complainant does not appear unless there are some reason why the Court thinks it fit not to do so and instead to adjourn the matter. 

The words mentioned also bear an additional connotation. They connote the notion that the Court must be told of the "reason" so as to be able to decide whether to adjourn the matter or not when the charge is called on and the accused appears but not the prosecution. If the "reason" is not before the Court, there is nothing before the Court to see it fit to adjourn the case and the only course open to the Court to take is to dismiss the charge. 

Mr. Faga's argument that the Court should adjourn the case in order to give the prosecution the chance to explain what it decided to do with the case cannot be accepted. The Court cannot wait for the prosecution while it goes about hunting for 'some reason' to ask for an adjournment of a charge. Section 186 CPC requires the prosecution to furnish the Court with "some reason" as to why the case should be adjourned when it is called on and the accused appears in obedience to that charge. That reason must be placed before the Court at the hearing or furnished with the Court before the hearing for its consideration at the time of hearing. It is after considering the reason furnished for the adjournment that the Court then proceeds to adjourn the case.' (emphasis added) [words in brackets added] 

The law relating to: 

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

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

·                     'Adjournments Generally' is examined commencing on page 392.

[6.6.2] Section 192(1) -- Criminal Procedure Code 

Section 192(1) of the Criminal Procedure Code (Ch. 7) states: 

'If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit.' (emphasis added) 

In R v Gordon Volo (Unrep. Criminal Review Case No. 40 of 2000) Palmer J stated at pages 1 – 2: 

'The rationale behind section 192(1) is that when the police prosecutor fails to turn up after case had been adjourned, without explanation, the court may conclude that no evidence or further evidence is being proffered against an accused. The court is then in position to decide whether the charges against the accused can be dismissed or not. Where no evidence had been proffered to date, that is a simple exercise. Where some evidence had been heard, that would require a bit more thought. 

Where however a guilty plea had been entered, it would not be open to have the charge against an accused dismissed for mere non-appearance by the police prosecutor. A guilty plea signifies an acceptance of the charge as read to the court, as true and correct and entitles the court to proceed to hear the facts, antecedents and mitigation. The Court can then proceed to consider whether conviction should be entered and sentence. 

If police prosecutor fails to turn up for decision, a presiding magistrate has two options. She can either adjourn case further to allow the police prosecutor to turn up in court and explain why he did not turn up at the last hearing, or simply proceed on with the case before her to pass decision. She did neither. It is always discourteous of any police prosecutor not to turn up in court without explanation.' (emphasis added) 

In R v Robert Belo & others (Unrep. Criminal Appeal Case No. 126 of 1999) Palmer J stated at pages 3 – 4: 

'The power of the court to dismiss the charge [under section 192 of the Criminal Procedure Code (Ch. 7)] is activated when no appearance is entered by the Public Prosecutor and the decision whether to dismiss the charge or not in the circumstances, can only be exercised by the presiding Magistrate in his deliberate judgment. The mere fact a prosecutor does not appear in court, does not necessarily mean the power must be exercised in favour of the accused. The court has a clear discretion to exercise, "… the court may dismiss the charge…." It should consider inter alia, the circumstances of the case carefully, the history of events, whether there has been delay, the seriousness of the charge(s) and the balance of justice, before deciding where its discretion would fall. The court must bear in mind the consequences of its order, which indirectly, might be contributing to the delay of justice and thereby denying justice, in cases where it is open to Prosecution to have the accused re-charged for the same offence. It is vital therefore for the court to exercise its discretion with care and not to rush to uphold an application to have the charge dismissed for want of prosecution straight – away.' (emphasis added) [words in brackets added] 

See also: R v Paul Maenu'u & Augustine Tuita (Unrep. Criminal Appeal Case No. 11 of 1998; Lungole - Awich J) & R v Christopher Tagaraniana (Unrep. Civil Case No. 342 of 1993; Muria CJ; at page 4). 

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

[6.7] Protection Of Identity Of Informers 

[6.7.1] Who Is An Informer? 

There is a rule of law that the identity of 'police informers' may not be disclosed in most legal proceedings. An 'informer' is a person who is not a member of the RSIP who informs police officers of facts relating to the proposed commission of offences and the criminals involved or of the identity of persons involved in the commission of criminal offences already committed', see Re Gibson (1991) 57 ACrimR 322, per Ambrose J at page 331. 

'Individuals give information they know but it will be hearsay and inadmissible in a court. It may well lead to the obtaining of other evidence which can be used. Some will be able to give information which will be admissible evidence but choose not to, and merely give sufficient information that leads the police to make other inquiries which does produce admissible evidence. Information in either of these categories may be given willingly and openly. Some will be given anonymously. Some will give it on condition that they are not identified. Many, as in this case, will give information where nothing is explicitly stated about any condition of or desire for confidentiality of the identity of the informer', see Mason (2000) 12 ACrimR 266, per Belby J, with whom the other judges concurred, commented at page 271. 

The law relating to 'Search Warrants' is examined commencing on page 259. 

[6.7.2] Use Of Informers 

An informer should never be asked to encourage a defendant to commit an offence which would not have otherwise been committed, see R v Birtles (1969) 53 CrAppR 469. 

[6.7.3] Identity Of Informers 

In D v National Society for the Prevention of Cruelty in Children [1978] AC 171 [[1977] 1 AllER 589; [1977] 2 WLR 201] Lord Diplock stated at page 218: 

'The rationale of the rule as it applies to police informers is plain, if their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. 

By the uniform practice of the judges which by the time of Marks v Beyfus (1890) 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non – disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.' (emphasis added) 

See also: R v Agar [1990] 2 AllER 442; (1990) 90 CrAppR 319; [1990] CrimLR 183 & R v Johnson (1989) 88 CrAppR 131; [1988] 1 WLR 1377; [1988] 1 AllER 121; [1989] CrimLR 831. 

[6.7.4] Onus On Defence 

The 'general rule' is that a witness may not be asked and will irrespective not be allowed to disclose the identity of an 'informer' or the channels through which information has been obtained, unless the Court considers that such disclosure is necessary to show the innocence of the defendant, see R v Hennessey (1979) 68 CrAppR 419; Marks v Befus (1890) 25 QBD 494; R v National Society for the Prevention of Cruelty in Children [1977] 1 AllER 589 [[1978] AC 171; [1977] 2 WLR 201], per Lord Diplock at page 595 and Lord Simon at page 607; Rogers v Secretary of State for Home Affairs [1973] AC 388; Signorotto v Nicholson [1982] VR 413; Johnson & another v Nicholson & another [1985] ACLD 742; R v Slater (1939) 34 TasLR 16; O'Garey v King [1972] TasSR 136; Weston v Smith [1936] TasSR 27 at page 39 & Chambers v Parisotto, Ex parte Parisotto [1957] StRQd 405 at page 409. 

In Mason (2000) 12 ACrimR 266 Belby J, with whom the other judges concurred, stated at page 275: 

'[In Sankey v Whitlam (1978) 142 CLR 1 Gibbs ACJ states at page 42:] 

"But, while the court will no doubt allow the identity of an informer to be disclosed only after the most anxious consideration, the expressions I have cited, and other similar words, were in my view not intended to convey that disclosure is warranted only where it is clear that the result must be to demonstrate that the accused is not guilty. So in Cerrah (unreported, Court of Criminal Appeal, NSW, No. 46 of 1988, 6 October 1988) Vincent J, speaking in effect of the court, said: 

'It is, in my view, clear that before what appears to be a legitimate claim against the disclosure of the name of a police informer is rejected, the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him. A speculative possibility of the kind for which the present applicant contends would certainly not suffice.'" 

[…] I would respectively suggest that the words 'is at the very least capable of being, if not likely to be, of some real assistance to him' should be understood 'as requiring it to be demonstrated that there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the case against him.' (emphasis added) [words in brackets added] 

In R v Turner [1995] 2 CrAppR 94 the Taylor CJ, delivering the judgment of the Court of Appeal, stated at page 98: 

'We wish to alert judges to the need to scrutinize applications for disclosure of details about informants with very great care. They will need to astute to see that assertions of a need to know such details, because they are essential in running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary.' (emphasis added) 

Therefore, no police officer is to disclose the identity of an 'informer', unless ordered by a court. Such orders should only be made if it is demonstrated that there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the charge/s against him/her. 

[6.7.5] Waive Privilege By Informers 

Considering that a 'informer's privilege' is conceived in the 'public interest' to enable the police to investigate offences, an 'informer' can not waive it if public policy demands secrecy. It is not a choice for any witness to make, but rather the Court, see Marks v Befus (1890) 25 QBD 494 at page 500; Rogers v Secretary of State for the Home Department [1972] AC 388 & R v Lewes Justice, Ex parte Home Secretary [1973] AC 388 at page 407. 

[6.7.6] Documentary Records Disclosing Identity Of Informers 

When a police officer is preparing any document associated with an investigation, he/she should not include any information that may later be used in court, see Mather v Morgan [1971] TasSR 192 at pages 207 – 208. 

[6.8] Public Interest Immunity 

[6.8.1] Introduction 

A recipient of a 'Summons to Witness' may object to the production of material which may, at the discretion of the Court, be classed as having 'public interest immunity', see R v W (G.) & W (E.) [1992] 1 CrAppR 166; R v K (Trevor Douglas) (1993) 97 CrAppR 342; R v Clowes [1992] 3 AllER 440; (1992) 95 CrAppR 440 & R v Cheltenham JJ, Ex parte Secretary of State for Trade [1977] 1 AllER 460; [1977] 1 WLR 95. 

A Court has the power to decide whether the public interest in non – disclosure was outweighed by the public interest in ensuring that justice was not frustrated. A Court should inspect the material in order to determine whether to order its disclosure, see R v K (Trevor Douglas) (supra); Conway v Rimmer [1968] AC 910; Sankey v Whitlam (1978) 142 CLR 1; Liddle v Owen (1978) 21 ALR 286; R v Salter (1939) 34 TasLR 16 & Seeney v Seeney & Laycock [1945] QWN 21.

In determining whether material is subject to 'public interest immunity', a Court must balance the public interest in the material not being disclosed against the interest of the defendant in the particular case in it being disclosed. If the material is capable of: 

[i] assisting the defence in proving the defendant's innocence; or 

[ii] avoiding a miscarriage of justice, 

then the material should be disclosed, see R v Keane [1994] 1 WLR 746; (1994) 99 CrAppR 1 & R v Agar [1990] 2 AllER 442; (1990) 90 CrAppR 318; [1990] CrimLR 183. 

A defendant should be supplied with a copy of police reports relating to him/her such as an entry in a station diary, if applied for and subject to a determination of 'public interest immunity', see R v Brown (1910) 4 CrAppR 104 at 107. 

[6.8.2] Categories 

Examples of material which has been held to be covered by 'public interest immunity' have included 'information' relating to: 

[i] Prevention, Detection & Investigation Of Crime; 

[ii] State Interests, such as National Security; 

[iii] Children; and 

[iv] Judicial Process. 

However, that list is certainly not exhaustive, see R v Grimes [1994] CrimLR 213; Blake & Austin v Director of Public Prosecutions (1993) 97 CrAppR 131; [1993] CrimLR 283; R v Rankine [1986] QB 861; (1986) 83 CrAppR 18; Johnson (Kenneth) [1988] 1 WLR 1377; [1988] 1 AllER 121; (1989) 88 CrAppR 131; [1989] CrimLR 831; R v Clarke (1930) 22 CrAppR 58 & R v Hallett & others [1986] CrimLR 462 & R v National Society for the Prevention of Cruelty in Children [1977] 1 AllER 589; [1978] AC 171; [1977] 2 WLR 201. 

[6.8.3] Prevention, Detection & Investigation Of Crime 

The identity of a person who permits his/her premises to be used for surveillance should be protected by 'public interest immunity'. Therefore, the location of such 'observation posts' should also not be disclosed, see R v Rankine [1986] QB 861; (1986) 83 CrAppR 18. 

Information relating to specific police techniques may be the subject of 'public interest immunity', see R v Brown & Daley (1988) 87 CrAppR 52. 

The law relating to the 'Disclosure Of The Identity Of Informers' is examined commencing on page 130. 

[6.8.4] Ministerial Objection 

A Court is not bound by a 'ministerial objection' to production and may overrule that objection, see Lopez v Attorney – General [1983] SILR 232; Conway v Rimmer [1968] AC 910; Corbett v Social Security Commission [1962] NZLR 878; Tipene v Apperley [1978] 1 NZLR 761; Robinson v State of South Australia (No. 2) [1931] AC 704 & Konia v Morley & another & Cullen v Attorney – General (NZ) [1976] 1 NZLR 455. 

[6.9] Disclosure Of Prosecution Evidence To Defence 

[6.9.1] Introduction 

Considering that there is no statutory requirement for the prosecution to disclose its evidence to the defence the common law duty of disclosure must be considered. 

The principle of fairness lies at the heart of all the rules of the common law concerning the disclosure of material by the prosecution whilst taking into account the public interest in the detection and punishment of offenders. 

A 'Summons to Witness' should not be used in an attempt to compel production of evidence of the prosecution for the purpose of disclosure, see R v H (L.) (1997) 1 CrAppR 176. 

[6.9.2] Summary Trials 

[A] RSIP Policy 

As regards 'summary trials', the policy of the RSIP regarding the 'disclosure of prosecution evidence' is as follows: 

[i] The prosecution is obliged to disclose to the defence material in its possession which may: 

[a] undermine the prosecution case, such as any evidence from an expert witness which may be in favour of the defence, see R v Ward [1993] 1 WLR 619; [1993] 2 AllER 577; (1993) 96 CrAppR 1; [1993] CrimLR 312 & R v Casey (1947) 32 CrAppR 91; and 

[b] cast doubt on the credibility of witnesses who may potentially be called by the prosecution, although there is no duty upon the prosecution to call such witnesses. That duty is examined commencing on page 120. 

In such cases the prosecution is to provide a copy of the statement/s of the witness/es to the defence and that duty is not limited to furnishing only the name and address of such witness/es; 

[ii] The prosecution is obliged to disclose to the defence material in its possession which provides a 'description of a defendant', if 'identification' will be an issue at trial. The law relating to such disclosure is examined on page 198; 

[iii] The prosecution is obliged to disclose to the defence the caution statement / record of interview of the defendant. The law relating to 'Confessional Evidence' is examined commencing on page 211; and 

[iv] The prosecution is not obliged to disclose to the defence issues which may impact on the credibility of potential defence witnesses. 

[B] General Principles 

In Lanemua v R (Unrep. Criminal Case No. 27 of 1992) Palmer J commented at pages 5 - 6: 

'The starting point must be to recognise that Prosecution has the discretion whether to call its witnesses or not. 

[…] 

In the case of Horace Henry Bryant v Reginam [1946] 31 CrAppR 146, it recognises that prosecution has a duty to make a person who can give material evidence available to defence to call as a witness if they decide not to call him. But that is as far as that duty goes. They are not under a duty to supply a copy of that witness statement. Defence can ascertain from that witness his/her evidence themselves. Prosecution is not under a duty to give a reason as to why they decided not to call their witness. There is a duty however, to make that witness available to the defence.' (emphasis added) 

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, stated at pages 773 – 779 and 70 – 77 respectively: 

'The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case which is to be made against him. Fairness also requires that the rules of natural justice must be observed. In this context, as Lord Taylor of Gosforth CJ observed in Keane (1994) 99 CrAppR 1, 3, [1994] 1 WLR 746, 750G, the great principle is that of open justice. […] 

[…] 

[…] But the common law rules are concerned essentially with the disclosure of material which has been gathered by the police and the prosecution in the course of the investigation process for use in the case to be made for the Crown. In the course of that process issues of fact will have been identified which may assist or undermine the Crown case. The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. The investigation process will also require an inquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility of those witnesses whom it chooses to lead must be disclosed. The question whether one or more of the Crown witnesses is credible or reliable is frequently one of the most important "issues" in the case […]. 

But what of material relating only to the credibility of the defence witnesses? […] 

Two questions must therefore be addressed: (1) Is it reasonable to distinguish material which may assist the defence case from material which relates only to the credibility of the defence witnesses?; and (2) Is it consistent with the general principle of fairness to say that the Crown is not under a legal duty to disclose material which is relevant only to a defence witness's credibility? It should be understood that, in posing these questions, I am concerned not with the defendant but only with the defence witnesses. 

[…] The fact that a witness has previous convictions especially for crimes which imply dishonesty or disrespect for the law, may be of great significance in regard to issues of credibility. But it has nothing to do with the question whether the offence with which the defendant is charged was committed or whether it was the defendant who committed the offence. If the witness is not called on to give evidence, evidence of his previous convictions will be irrelevant and inadmissible. It will have no bearing whatever on the facts of the case. Other facts or circumstances may be used which are entirely irrelevant to the issues of fact as to the defendant's guilt or innocence, such as things done or said by the witness which may be said of material regarding the capacity of the witness to observe or recall the events spoken to in his evidence. Here again if the witness is not called to give evidence this material will be irrelevant. 

There are, of course, cases where the question of credibility is so ultimately bound up with the facts that the two cannot reasonably by separated. A good example of this is where an account is given by the witness of his recollection of events which contains within it contradictions or inconsistencies which cast doubt on his reliability. Another is where his account is contradicted by other witnesses, so that the issues of credibility and reliability have to be decided by assessing the weight of the evidence. So it is not possible to say that material relating to the credibility of defence witnesses will always be distinguishable from the issues of fact relating to the defendant's guilt or innocence. But it is enough for an affirmative answer to the first question to say that much of the material which is regularly used in practice to test a witness's credibility is entirely irrelevant to the question whether the defendant is guilty or innocent of the offence with which he is charged. In the case of the defence witnesses in particular, the issues of fact raised by the defence case do not exhaust the material which may be used by the prosecutor to test their credibility. 

As to the second question, the principle of fairness lies at the heart of all the rules of the common law about the disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in the detection and punishment of crime. A defendant is entitled to a fair trial, but fairness does not require that his witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of the defence witnesses. The legal representation to which he is entitled, usually with the benefit of legal aid, has the responsibility of performing these functions on his behalf. 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. 

The common law rules which I have described are designed to ensure the disclosure of material in the hands of the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and assessment of possible defence witnesses. And material which may assist the defence case can be distinguished from material which may undermine it or may expose its weaknesses. The adversarial system under which trials in this country are conducted applies to the examination of witnesses in support of the defence case in the same way as it does to the examination of witnesses for the Crown. No witness enters the witness box with a certificate which guarantees his credibility. Every witness can expect to be cross – examined upon the veracity and reliability of his evidence. Cross – examination which is directed only to credibility may lose must of its force if the line is disclosed in advance. This weakens the opportunity for the assessment of credibility by the jury or, in a summary case, by the justices. To insist on such disclosure would, sooner or later, undermine the process of trial itself. It would protect from challenge those who were disposed to give false evidence in support of a defence which had been fabricated. That would be to tip the scales too far. Justice would not have been done. 

[…] If fairness demands disclosure, then a way of ensuring that disclosure will be made must be found. But it is a fact that in many cases, other than those to which the special rules apply relating to alibi, the defence does not disclose the identity of its witnesses until a late stage. It would place a substantial burden on the Crown for it to be expected to retain, and be ready to disclose at short notice, material which might possibly relate to the credibility only of those whom the defence might possibly wish to call as its witnesses. It would also be unreasonable to expect the prosecutor to reveal information relating to the credibility of defence witnesses previously unknown to the Crown whose credibility did not require to be investigated until their identity was made known to the prosecutor. Yet, if there is a legal duty which required the disclosure of information relating to the credibility of the defence witnesses, there would be no answer to such demand. 

[…] 

Fairness, so far as the preparation of the defence case and the selection of the defence witnesses are concerned, is preserved by the existing rules of disclosure and by ensuring that the defendant has adequate time and facilities for the preparation of his defence. […] The investigation for which the defence are responsible extends to all matters which may affect the credibility of the defence witnesses. The preparation of the defence case is not complete until this has been done. Once it has been completed, the defence can be assumed to be in possession of all that is needed to decide which witnesses to lead and which to reject on grounds of credibility. It is unnecessary to extend the duty of disclosure by the prosecutor any further to ensure that the defendant has a fair trial.' (emphasis added) 

In R v Mills & Poole [1998] 1 CrAppR 43 [[1998] AC 382; [1997] 3 WLR 458; [1997] 3 AllER 298] the House of Lords examined the prosecution duty of disclosure of the statements of prosecution witnesses who are regarded as unreliable and whom the prosecution do not intend to call. 

Lord Hope of Craighead, with whom the other Lordships concurred, stated at pages 53 – 65: 

'The point of law of general public importance certified by the Court of Appeal was as follows: 

"Where prosecuting counsel has reasonably decided that the maker of the statement is not a witness of truth and will seek to depart from or contrive an explanation for that statement if the witness is called, is the prosecution's duty limited to furnishing the name and address of the witness only, or must counsel provide copies of the statement to the defence?" 

[…] I am of the opinion that in the circumstances specified in the certified question the answer to it should be that it is the duty of prosecuting counsel to provide a copy of the statement of the witness to the defence and that the duty is not limited to furnishing only the name and address of the witness.' 

See also: R v Derby Magistrates' Court, Ex parte B; Same v Same, Ex parte Same [1996] 1 CrAppR 385. 

Refer also to the law relating to 'Hostile Witnesses' commencing on page 288. 

[6.9.3] Preliminary Investigations / Inquiries 

In determining what evidence should be disclosed prior to a 'Preliminary Investigation / Inquiry', a prosecutor must always consider his/her duty as an 'officer of the court' to be fair to the defendant, see R v Mills & Poole (supra); R v Ward (supra); R v Brown (Winston) (supra); Dallison v Caffery [1965] 1 QB 348; [1964] 3 WLR 385; [1964] 2 AllER 610 & R v Banks [1916] 2 KB 621; (1917) 12 CrAppR 74. 

The Director of Public Prosecutions is responsible for the disclosure of evidence in respect of 'preliminary investigations / inquiries'. 

The law relating to 'Preliminary Investigations / Inquiries' is examined commencing on page 310. 

[6.10] Disclosure Of Convictions Of Prosecution Witnesses 

In R v Collister & Warhurst (1955) 39 CrAppR 100 the Court of Criminal Appeal held: 

It is the duty of the prosecution to inform the defence of any known convictions, ie., bad character, of the witnesses to be called by the prosecution, but there is no duty to examine the criminal records in order to determine whether any witnesses to be called has a criminal history. 

In R v Carey & Williams (1968) 52 CrAppR 305 the Court of Appeal held: 

Where the bad character of a witness called by the prosecution has been made known to the defence, but the defence has elected not to cross – examine the witnesses on that character; 

[i] the prosecution is under no duty to disclose the criminal convictions to the Court; and further 

[ii] the Court is under no duty to question the witness as regards his/her character. 

See also: R v Matthews (1970) 65 CrAppR 292; R v Paraskeva (1983) 76 CrAppR 162 at page 164 & R v Thompson [1971] 2 NSWLR 213. 

The law relating to: 

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

·                     'Cross – examining Defendants As To Credit' commencing on page 352. 

[6.11] Abuse Of Process 

[6.11.1] Defined 

An 'abuse of process' is 'something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding', see Hui Chin – Ming v R [1991] 3 WLR 495; [1992] 1 AC 34; [1991] 3 AllER 897; (1992) 94 CrAppR 236; [1992] CrimLR 446. 

In The State v Peter Painke [1976] PNGLR 210 O'Leary AJ, sitting alone, stated at page 213: 

'[An a]buse of process of the court is an expression used to describe any use of the process or procedures of the court for an improper purpose or in an improper way. It encompasses a wide range of situations. […] The steps which the court may and will take to prevent an abuse of its process must vary from one situation to another. The most usual ones are those staying or dismissing proceedings […].' [word in brackets added] 

In Jago v District Court (NSW) (1989) 168 CLR 23 Brennan J, as a member of the High Court of Australia, commented at page 47: 

'An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve. […] Although it is not possible to state exhaustively all the categories of abuse of process it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or exoneration of the accused from liability to punishment for the conduct alleged against him.' (emphasis added) 

[6.11.2] General Principles 

In Connelly v Director of Public Prosecutions [1964] 2 AllER 401 [[1964] AC 1254; [1964] WLR 1145; (1964) 48 CrAppR 183] Lord Morris stated at page 409: 

'There can be no doubt that a court which is endowed with a particular jurisdiction has [common law] powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.' (emphasis added) [words in brackets added] 

In Mills v Cooper [1967] 2 QB 459 Lord Parker CJ stated at page 467 and in Director of Public Prosecutions v Humphrys (1976) 63 CrAppR 95; [1977] 1 AC 1 [[1976] 2 WLR 857; [1976] 2 AllER 497] Lord Salmon stated at pages 122 and 46 respectively: 

'[A] judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of process of the court and is oppressive and vexatious that the judge has the power to intervene.' 

A defendant who seeks a permanent stay must be able to show on the 'balance of probabilities', see Attorney – General's Reference (No. 1 of 1990) [1992] 3 AllER 169; [1992] QB 630; [1992] 3 WLR 9; (1992) 95 CrAppR 296; [1992] CrimLR 37, that he/she will suffer serious prejudice to the extent that no fair trial can be held. In other words, the continuance of the proceedings amounts to an 'abuse of the process' of the court. In discharging that onus evidence may be called, see R v Clerkenwell Magistrates' Court, Ex parte Bell [1991] CrimLR 468. The judgment of the Court should include a brief summary of the law and the factors taken into consideration as whether an 'abuse of process' had occurred, see R v Manchester Crown Court, Ex parte Cunningham [1992] COD 23. 

The granting of a stay simply means that the prosecution is prevented from further proceeding with the charge, protecting the defendant from being prosecuted in circumstances in which it would be unjust to do so, see Attorney – General of Trinadad & Tobago v Phillip [1994] 3 WLR 1134; [1995] 1 AllER 93; [1995] 1 AC 396. When a stay is granted a Court essentially rules that there has been an 'abuse of the process' of the court by the prosecution. 

In R (on the application of Ebrahim) v Feltham Magistrates' Court & another & Mouat v Director of Public Prosecutions [2001] 1 AllER 831 Brooke LJ, delivering the judgment of the Divisional Court, commented at page 834:

'We think it may be helpful to restate the principles underlying this jurisdiction. The Crown is usually responsible for bringing prosecutions and, prima facie, it is the duty of a court to try persons who are charged before it with offences which it has power to try. None the less the courts retain an inherent jurisdiction to restrain what they perceive to be an abuse of their process. This power is 'of great constitutional importance and should be … preserved' (per Lord Salmon in DPP v Humphrys [1976] 2 AllER 497 at 527 – 528, [1977] AC 1 at 46). It is the policy of the courts, however, to ensure that criminal proceedings are not subject to unnecessary delays through collateral challenges, and in most cases any alleged unfairness can be cured in the trial process itself. We must therefore stress from the outset that this residual (and discretionary) power of any court to stay criminal proceedings as an abuse of its process is one which ought only to be employed in exceptional circumstances, whatever the reasons submitted for invoking it. […] 

The two categories of cases in which the power to stay proceedings for abuse of process may be invoked in this area of the court's jurisdiction are; (i) cases where the court concludes that the defendant cannot receive a fair trial, and (ii) cases where it concludes that it would be unfair for the defendant to be tried. [… I]n some cases these categories may overlap. […]' (emphasis added) 

See also: R v Yamse Masayuki, Ito Tutomu, Solgreen Enterprises Ltd (Unrep. Criminal Case No. 27 of 1998; Muria CJ at page 10); R v John Musuota (Unrep. Criminal Case No. 41 of 1996; Lungole - Awich J); R v Sawoniuk [2000] 2 CrAppR 221; [2000] CrimLR 506; R v Piggott & Litwin [1999] 2 CrApprR 320; R v Liverpool Magistrates' Court, Ex parte Slade [1998] 1 CrAppR 147; [1988] 1 WLR 531; R v Bloomfield [1997] 1 CrAppR 135; R v Latif & Shahzad [1996] 1 WLR 104; [1996] 2 CrAppR 92; R v Telford JJ, Ex parte Badham [1991] 2 AllER 854; [1991] 2 WLR 866; [1991] 2 QB 78; (1991) 93 CrAppR 171; [1991] CrimLR 526; R v Horsham JJ, Ex parte Reeves (1982) 75 CrAppR 236; [1981] CrimLR 566; R v Oxford City JJ, Ex parte Smith (1982) 75 CrAppR 200; R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Director of Public Prosecutions (1992) 95 CrAppR 9; [1992] CrimLR 790; R v Horseferry Road Magistrates' Court, Ex parte Bennett [1993] 3 WLR 90; [1993] 3 AllER 138; (1994) 98 CrAppR 114; [1994] 1 AC 42; LPB (1990) 91 CrAppR 359; Director of Public Prosecutions v Humphrys (1976) 63 CrAppR 95; [1976] 2 WLR 857; [1977] AC 1; [1976] 2 AllER 497; R v Brentford Justices, Ex parte Wong (1981) 73 CrAppR 67; Holmden v Bitar (1987) 47 SASR 509 at 517; 27 ACrimR 255; Vuckov & Romeo (1986) 40 SASR 498; (1986) 22 ACrimR 10; Smith, Ferguson, Coburn & others (1994) 73 ACrimR 384; Grassby v R (1989) 87 ALR 618; R v Abia Tumbule & others [1974] PNGLR 250; The State v Peter Painke (No. 2) [1977] PNGLR 141 & The State v Aigal & another [1990] PNGLR 318. 

[6.11.3] Presentment Of A Nolle Prosequi 

The authority of the Director of Public Prosecutions to enter a 'nolle prosequi' is provided for by section 63 of the Criminal Procedure Code (Ch. 7). 

In Tatau v Director of Public Prosecutions (Unrep. Criminal Appeal Case No. 289 of 1992) Palmer J held at page 15: 

'The reason given by the learned prosecutor was that he felt that the learned Magistrate had not given due consideration to his applications for adjournment to call his last witness. The proper action to be taken is to inform the Court immediately that he disagreed with the decision of the Court and that he would file an appeal against the ruling of the Magistrate. This would have the effect to suspending proceedings whilst he challenges the ruling of the Magistrates' Court. There would have been no prejudice and no oppression, no abuse of process and no unfairness involved. 

The nolle had the effect of circumventing the ruling of the Magistrate without having to challenge it on appeal. 

It was in my view done for an improper purpose, after a valid exercise of a discretionary power of the Magistrate in the interests of justice to have the case proceeded with. The proper course of action when the adjournment was denied at that particular point of time was to lodge an appeal against the ruling of the Magistrate. 

Accordingly I find that the presentment of the nolle prosequi was also an abuse of process.' 

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

[7.9.4] Unavailability Of Evidence 

In R (on the application of Ebrahim) v Feltham Magistrates' Court & another & Mouat v Director of Public Prosecutions [2001] 1 AllER 831 [[2001] 1 WLR 1293] Brooke LJ, delivering the judgment of the Divisional Court, stated at page 836: 

'It must be remembered that it is a commonplace in criminal trials for a defendant to rely on "holes" in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence. 

In relation to this type of case Lord Lane CJ said in A-G's Reference (No. 1 of 1990) that no stay should be imposed – 

"unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held, in other words that the continuance of the prosecutions amounts to a misuse of the process of the court. […]".' 

The law relating to 'Missing Exhibits' is examined on page 238. 

[6.11.5] Discretion To Prosecute 

In R v Croydon Justices, Ex parte Dean [1993] 3 AllER 129 [1993] QB 769; [1993] 3 WLR 198; (1994) 98 CrAppR 76; [1993] CrimLR 759] Staughton LJ, with whom Buckley J concurred, held at page 137: 

'In my judgment the prosecution of a person who had received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process.' 

In determining whether to grant a stay based on a representation by a police officer or the Director of Public Prosecutions that a defendant or potential defendant would not be prosecuted, a Court should consider: 

[i] the length in time between the date of such representation and subsequent court proceedings, see R v Townsend and others [1997] 2 CrAppR 540 & Attorney – General of Trinidad & Tobago v Phillip [1994] 3 WLR 1134; [1995] 1 AC 396; [1995] 1 AllER 93;

[ii] what prejudice, if any, would result to the defendant if the proceedings were pursued, see R v Horseferry Road Magistrates' Court, Ex parte Director of Public Prosecutions [1999] COD 441; and 

[iii] any special circumstances such as the defendant's youthfulness and assistance provided to the police subsequent to the subject representation, see R v Croydon Justices, Ex parte Dean (supra). 

The law relating to the 'Discretion To Prosecute Generally' is examined commencing on page 112.