Elima v Regina 2 [2005] SBCA 6; CA-CRAC 023 of 2004 (4 August 2005)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction: Appeal from Judgment of the High Court of Solomon Islands (Brown J)

Court File Number: Criminal Appeal No 23 of 2004 (On Appeal from High Court Criminal Case No. 339 of 2004)

Date of Hearing: Friday 22nd July 2005
Date of Judgment: Thursday 4th August 2005

The Court: Lord Slynn of Hadley P, Adams JA and Goldsbrough JA.

Parties: ELIMA -V- REGINA

JEFFREY HOU -V- REGINA

ANGITALO -V- REGINA

GEREA -V- REGINA
Advocates:
Appellant: Stephen Lawrence
Respondents: Peter Little and Ricky Iomea

JUDGMENT

On the appeal in Elima to this Court on sentence the Prosecution contended that no appeal lay to the Court of Appeal since “This is a severity appeal and if there is an error of law in the appeal process involving the sentence of appeal in the High Court it is not appealable and there is no jurisdiction to hear the appeal.” That submission was based on section 22 (1) of the Court of Appeal Act which reads:-

“(1) Any party to an appeal from a Magistrate’s Court to the High Court may appeal, under this part of this Act, against the decision of the High Court in such appellate jurisdiction to the Court of Appeal in any ground of appeal which involves a question of law only (not including severity of sentence).”

Two alternative interpretations suggested themselves. The first is (as the Prosecution contended) that no appeal on sentence is possible to the Court of Appeal from the High Court sitting on appeal from a Magistrate’s Court. The second is that severity of sentence in itself is not to be regarded as a question of law on which an appeal lies but that if it is contended that there has been an error of law which has resulted in over-severe sentence an appeal on the error of law lies and it is then open to the Court of Appeal to review the sentence.

A similar point on the meaning of this section arose in Jeffrey Hou –v- Regina; Angitalo –v- Regina and Gerea –v- Regina.

Because it was not suggested that there was any consistent line of authority on this point or any established practice we decided to hear fuller argument and we gave notice to counsel in these cases. We asked the Attorney General if he would invite counsel to address us as amicus curiae. We were very fortunate that the Solicitor General, Mr Nathan Moshinsky QC with Mr Francis Waleanesia, Chief Crown Counsel were able to come and we were very grateful for the help they could give us on very short notice. We were grateful too to counsel who returned for the adjourned hearing in these cases and for their submissions.

Since Mr Justice Kabui (who sat on the first hearing on the merits in Elima) was unable to be present due to other judicial duties before the end of the current sittings of the Court of Appeal, Mr Justice Goldsbrough who was a member of the Court in all the other cases sat on the hearing of the point. No objection was raised by counsel to this course.

Our initial view was that the words in section 22 (1) should not be read as excluding a right of appeal on a question of law (even if the effect was that the sentence imposed was too severe) unless it appeared that the Legislature had intended that there should only be one appeal (i.e. to the High Court) and not two appeals (i.e. to the High Court and then to the Court of Appeal).

Mr Moshinsky QC cited a number of authorities which were relevant on this question. We need only cite three of them. Thus in Regina –v- Cain (HL (E)) 1985 AC 46 Lord Scarman, with whom other members of the Judicial Committee agreed, stressed at p55 that -

“the Courts have been right to maintain in full the right of appeal against sentence and to construe statutory prohibitions of appeal as not applicable to sentences not authorized by law. The right of appeal against sentence is of fundamental importance to the subject: it is his protection against sentences not authorized by law as well as against the sentence which is too severe or is inappropriate. It is a reasonable inference not to be gainsaid save by specific statutory provision that where Parliament prohibits an appeal against sentence it is dealing with the discretionary power of the court to make the order and not addressing its prohibition to orders defective in law. In the absence of express indications to the contrary, it would be unthinkable that Parliament could intend to deprive the subject of his right to appeal against a sentence which the Court had no power to pass. Further, there are very good, though differing, reasons for excluding an appeal on the merits none of which apply to its exclusion of appeal for lack of power to make the order.”

In Minister for Immigration and Multicultural Affairs –v- Yusuf [2001] HCA 30 at para 82 the High Court of Australia said:-

“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig –v- South Australia [50], if an administrative tribunal (like the Tribunal) –

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive [51]. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterization of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law [52].”

In the Governor General –v- Solomon Sunaone Mamaloni ([1993] SBCA 1; Civil Appeal No.s 1 and 3 of 1993, judgment of 5th November 1993) this Court stressed that an ouster clause “excludes the jurisdiction of the Court to determine the correctness of the determination provided always that the tribunal (here the Governor General) has acted within jurisdiction”. It referred to the decision of the House of Lords in Anisminic Ltd –v- Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 than which “no better exposition of the limits of such a provision will be found” -

“But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.”

We think that a similar approach to that, in the administrative law cases should be adopted in question like those here.

In the present cases it would be strange if there were no right of appeal against an error of law leading to a particular sentence when section 22 (3) of the same Act recognizes that where the Court of Appeal dismisses an appeal against conviction it may if it thinks that “such sentence was an unlawful one or was passed in consequence of an error of law, in which case it may impose such sentence in substitution therefore as it thinks proper”.

Moreover the provision of section 22 (1) does not state clearly that no appeal shall lie against severity of sentence where a question of law is raised. This is to be contrasted with the Criminal Procedure Code (Cap. 7) which at section 283 provides:-

“(3) An appeal to the High Court may be one matter of fact as well as one matter of law.

(4) For the purposes of this part the extent of a sentence shall be deemed to be a matter of law.”

Further in section 284, where conviction follows a plea of guilty in the Magistrates Court there shall be no appeal “except as to the extent or legality of the sentence.

In our view it is open to the appellants to contend that there has been an error of law albeit this is one which leads to a submission that the sentence is too severe. It may be infrequent for the decision of the Magistrate to be accepted by the High Court and still be appealed further. In our view, however, the Court of appeal has power to review the decision of the High Court where it finds that the sentence is the result of an error of law only.

President, SI Court of Appeal
Judge of Appeal
Judge of Appeal