R v Farsy [2004] SBCA 9; CA-CRAC 013 of 2004 (10 November 2004)

SOLOMON ISLANDS COURT OF APPEAL

FILE NO/S: Appeal No 13 of 2004

PARTIES:

R

V

FARSY, Didier Marie Edmond
(appellant)

CITATION: R v Farsy

DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: High Court at Honiara

DELIVERED ON: 10 November 2004
DELIVERED AT: Honiara
HEARING DATE: 3 November 2004

JUDGES: Lord Slynn President, Goldsbrough and Williams JJA

JUDGMENT OF THE COURT

ORDER: Appeal dismissed

COUNSEL: K Averre for the appellant
R Barry, with H Kausimae, for the respondent

[1] THE COURT: The appellant was convicted after a trial before a Magistrate of:

(1) indecent practices with N.
(2) indecent practices with N.
(3) buggery with S.
(4) indecent practices with S.
Evidence was taken on 22 and 23 October 2003 from the complainant S, some of the investigating police officers, and some other witnesses. The trial was then adjourned to 6 November when evidence was taken from further witnesses including the complainant N. Two prosecution witnesses were heard after lunch on that day and then the appellant announced his election not to call evidence. The Magistrate then heard addresses from both counsel and, without retiring from the bench, proceeded to deliver his reasons for convicting the appellant. Sentence were imposed the following day.

[2] The appellant appealed to the Chief Justice who heard submissions on 17 March 2004 and dismissed the appeal on 24 June 2004. An appeal has now been lodged with this Court.
[3] The argument in this Court centered on the fact that the Magistrate read his reasons from a document which contained some typewritten material obviously prepared prior to hearing evidence on 6 November and handwritten material incorporated into the document in the course of the hearing on the 6th. In those circumstances it was submitted on behalf of the appellant that the Magistrate had pre-judged his case and that the conduct in question established that the Magistrate was biased against the appellant.
[4] Given the gap of some 14 days between the first two days of hearing and the final day it was not unrealistic for the Magistrate to record preliminary views on the evidence heard on those first two days. But the typescript which is in the material available to this Court demonstrates that the Magistrate went further than that in preparing the document. The following extracts from the document demonstrate that the Magistrate expressed himself in a way which indicated he had already made up his mind:

“I find the defendant guilty of buggery as charged on the clearest and most persuasive evidence.

...

On count 4 I also find him guilty ... I have no doubt at all that this happened to a confused and frightened victim who was persuaded to go to the room to have his leg sores treated.”

[5] The Chief Justice said in his reasons: “Again there is nothing unusual or unlawful about Magistrates or Judges reading from a pre-typed sheet and adding to, amending, deleting etc any thing from that pre-typed sheet as trial progresses and reading from it at the conclusion of trial. Some Judges and Magistrates actually do that as the trial progresses, typing up or writing parts of the Judgment as they consider appropriate.” That statement is unobjectionable, but care must always be taken to ensure that the matter is not prejudged.
[6] Although the evidence given after lunch on 6 November was that of police officers who had investigated the allegations it was not direct evidence of the incidents themselves. But here it seems to the court that a reasonable member of the public might entertain a reasonable apprehension that the Magistrate did not bring an unprejudiced mind to the issues raised by counsel’s addresses on the afternoon or the final day of trial. But that is not the end of the matter; the appellant must still establish that recording convictions in the light of all the evidence constituted a substantial miscarriage of justice. That is a matter to which the court shall return later.
[7] Another argument advanced in this Court by counsel for the appellant was based on the following passage in the Magistrate’s reasons for convicting:

“As for count 1 the evidence on its own of Loyad Wanefelea which despite me warning the defence that if they did not put to this witness all matters in his evidence that they disputed I would be left with the only conclusion that was possible namely that the defence were not in dispute with the unchallenged evidence and that I may accordingly take it as fact. The defence other than saying he may be lying on everything did not challenge any of his detailed evidence. As for the general allegation that all his evidence was a lie the defence were told by me this was too general to answer and specific allegations had to be put. The contradiction in evidence does not alter the power of this evidence on the essential facts he gave it really is in periphery or omission not contradiction of his main points that were not challenged in detail by the defence.”

Apart from the last sentence all of that appeared in the prepared typescript.
[8] The submission was made that the Magistrate misapplied the rule in Browne v Dunn (1869) 6 R 67, and in consequence drew inferences unfavourable to the appellant from the manner in which cross-examination was conducted.
[9] The rule in Browne v Dunn is primarily intended to ensure that, if a party is to give evidence which contradicts evidence given by a witness, such contradictory evidence is put to the witness during cross-examination. That was not the situation here because the appellant did not give evidence.
[10] In a case such as this the tribunal of fact is entitled to have regard to the way in which the defence is conducted when considering issues of credibility. Here, notwithstanding evidence from the witnesses tending to support the evidence of the complainants, the cross-examination of the complainants appeared to be in general terms. Merely putting to a complainant that all relevant evidence was a lie in those circumstances does not seriously challenge the prosecution case. In the court’s view that is all the Magistrate was really saying in the passage quoted above.
[11] It remains to consider whether, given the fact the prepared reasons may have indicated the Magistrate had prejudged the appellant, there was a substantial miscarriage of justice.
[12] The learned Chief Justice in rejecting the appeal at first instance extensively reviewed the evidence and came to the conclusion “there was sufficient evidence to support the decision of the learned Magistrate” and that the “conviction is not unsafe.” The court does not find it necessary to repeat here details of the case against the appellant. We have read the record of proceedings before the Magistrate and there was ample evidence to support the convictions. There was independent evidence supporting much of the evidence of the complainants. Admissions by the appellant to investigating police, and in particular the finding of a photograph of one of the complainants in the nude in his possession, also tended to support the prosecution case.
[13] It is true as submitted by counsel for the appellant that this Court does not have the advantage of a full transcript of the evidence, but the recorded notes of the proceedings before the Magistrate are sufficient to enable this Court to reach the conclusion that the convictions were not unsafe, and there has been no substantial miscarriage of justice.
[14] The appeal should be dismissed.