THE court has dismissed an application the lawyer of a man facing a murder charge raise objecting the court’s line of question during a committal hearing.
Principal Magistrate Edwin Saramo said he agreed entirely with the prosecution’s submission that the application has no legal basis and therefore dismissed it and put the accused to his right to appeal.
Sarah Karani, who represents one of the two men accused of the murder of a man at the Lungga early this year, objected to the court’s line of questioning during cross-examination.
The girlfriend of the deceased gave her evidence and was cross-examined by the defence when the court puts some questions to her.
Three of those questions were repeated ones except for the fourth which asked her whether she recognised the voice of the man who attacked her boyfriend on the night of 21, March.
This witness has already told the court she during examination in chief that she did not recognise the voice of the attacker.
But when she was asked again by the court during the cross-examination, she said she recognised the voice to be that of Banabus Mwema.
Ms Karani however objected to this line of questioning from the court.
She said the question was improper as the witness has already stated in examination in chief that she did not recognise the voice of the attacker.
She then sought an adjournment to make this application to have this certain question excluded from the evidence.
The application was then made on which she based her objection on the grounds of excessive questioning by the court, denial of a fair proceeding for the accused, miscarriage of justice and disqualifying bias.
Prosecution however, opposed the application, contending that it has no legal basis and therefore should be dismissed.
Mr Saramo said the first three grounds raise the same issue because denial of fair process and miscarriage of justice are the same thing and they can result from excessive questioning by the court.
“That is to say that if the court asks so many questions, it can be perceived as taking over the role of counsels, with the result that there may be a miscarriage of justice or a denial of fair process to the accused.”
He there refer to the case of Natei v Regina, on which he said makes it absolutely clear that there must be excessive questioning by the court before it can create a real apprehension in the mind of the accused and disinterest observers that the trial was unfair.
“And yet the Court of Appeal had decided that the judge’s conduct did not amount to excessive questioning,” Mr Saramo said.
“By contrast, in this case the court has put (as far as I can estimate) less than 20 questions to the witness.
“Most of the court’s intervention during examination in chief and cross-examination were simply to confirm or clarify issue that arose during questioning.
“On most occasions this was done with assistance of counsels.”
Mr Saramo added:
“Another notable feature on the case of Natei v Regina is that the Court went on to acknowledge that a judge has a right to put questions to a witness to get to the truth.
“This is clearly a statutory right because s45 of the Evidence Act 2009, states that in any proceedings the court may, in the interests of justice, ask a witness any question.
“Ms Karani concedes that right but argues that it is restricted to non-leading questions.”
However, Mr Saramo said Ms Karani could not produce any authority to support her submission and so he found himself unable to agree with her.
He further added that on its literal interpretation, s45 of the Evidence Act allows the court to put any questions to a witness and does not admit of the restrictive interpretation learned counsel sought to impose on what is otherwise a clear legislative enactment.
“I’m satisfied in this case that the questioning by the court is, on the standard laid down in Natei vs Regina, not excessive.
“Because it is not excessive, it cannot be said to have resulted in a miscarriage of justice or a denial of fair process or shows bias that is strong enough to disqualify the presiding magistrate.”
Ms Karani however indicated she will appeal the ruling.
The matter will return to court again on November 10, to wait for Public Solicitor’s Lawyer Stanley Aupai to return from a court circuit to the province.
Mwema and Mark Nalua were accused of the murder of the deceased at Lungga, on the night of 21, March.
On 10am the next day, the body of the deceased was found floating in the creek near the sisi dance by some people.
Public Prosecutor Nelson Dhita is prosecuting.
By ASSUMPTA BUCHANAN
