Levo v Queen [2011] SBCA 5; Criminal Appeal 01 of 2011 (9 May 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands
(Palmer, CJ.)

COURT FILE NUMBER: Criminal l Appeal Case No.1 of 2011 (On Appeal from High Court
CRIMINAL CASE NUMBER 250 OF 2010

DATE OF HEARING: 2 May 2011
DATE OF JUDGMENT: 9 May 2011

THE COURT: Sir Robin Auld P
McPherson, CBE, JA.
Williams, JA.

PARTIES:

LEVO
Appellant

V

THE QUEEN
Respondent

ADVOCATES:
Appellant: Michael Pitakaka for the Appellant

Respondent: Jim Seuika and Andie Driu for the Respondent

KEY WORDS: Insert Key Words - separate them by using a comma

EX TEMPORE/RESERVED: RESERVED
ALLOWED/DISMISSED: DISMISSED
PAGES: 1 – 4

JUDGMENT OF THE COURT
LEVO –v- THE QUEEN

This is an appeal against a decision of Principal Magistrate Garo dated 20 May 2010. The appellant was convicted of five counts of conversion contrary to the Penal Code. He was sentenced to imprisonment for two years, of which half was suspended for two years. He first applied to the Principal Magistrate to extend the time for appealing, but his application was refused, and was dismissed on 21 December 2010.

The ground of appeal primarily relied on by the appellant is founded on s.285 of the Criminal Procedure Code. Section 285(1) opens with a statement that, “subject to any Rules of Court every appeal is to be in the form of a petition in writing to be presented to the Magistrate Court from which the appeal is lodged.” It is to be lodged within 14 days of the decision appealed against: see s.285 (1). The section then goes on to add a proviso:- “Provided that the Magistrate Court or the High Court may at any time for good cause enlarge the period of limitation prescribed by this section”.

Sub-section (2) of s.285 then defines the expression “good cause” as being deemed to include: -

(a) a case where the advocate engaged by the appellant was not present at the hearing before the Magistrate’s Court and for that reason requires further time for preparation of the petition;

(b) any case in which a question of law of unusual difficulty is involved;

(c) a case in which the sanction of the Director of Public Prosecutions is required by virtue of section 283.

The learned Chief Justice who heard the appellant’s application rejected this attempt to invoke s.285. At the hearing of the appeal, Mr Pitakaka of counsel for the appellant submitted that s.285(1) was directly applicable to his case. He said he was not, within the meaning of s.285(2) present at the hearing before the Magistrate. Someone else then represented the appellant, and Mr Pitakaka was not engaged until the last day available for lodging the appeal.

It was at that stage too late for him prepare for the hearing. The evidence has not been addressed to us in admissible form, as a sworn statement or affidavit, but it does appear that Mr Pitakaka received his instructions very late. His contention is that the requirement of s.285(1) were therefore satisfied. The appellant was therefore, within s.285(1), “not present at the hearing” before the Magistrate’s Court: and for that that reason required further time for preparation of the petition or appeal. He contended that once that conclusion was reached, this Court had no option but to enlarge the limit of time imposed by the section.

We are, however, unable to accept the submission. Section 285(1) opens by conferring a discretion on the Court. It says the Magistrate’s Court or the High Court “may” “for good cause” enlarge the time prescribed by the section. Equally, of course, it may not do so. It is only when one comes to formulate and apply the meaning “good cause” that the section 285(2) (a) becomes applicable. And of course, s.285(2)(a) is not exhaustive. There may be other reasons why good cause is shown, as indeed is demonstrated in s.285(2) (b) and (c). But this does nothing to displace the primary discretion conferred by the word “may” at the beginning of section 285(1). Therefore the Court may refuse to enlarge the prescribed time, and may do so for any reason going beyond those specified on (a), (b), or (c) of s.285(2) .

That the court has an affirmative discretion to exercise even where s.285(2)(a) (“good cause”) is shown is evident from the consideration that otherwise an extension would be mandatory even if it could be seen that the appeal was bound to fail. Moreover, it would be obligatory for the Court to grant an extension of time for appealing even where s.285(2)(a) was engaged only because the appellant had altered his original choice of advocate or representative. In those instances (voluntary changes of advocate) s.285(2)(a) would be applicable literally; but no one could think that simply by choosing a new advocate in place of the one who had appeared at the trial, the appellant would automatically qualify for an extension of time. This would be to ignore the discretion conferred and exercisable by the word “may” in s.285(1) and there is a long line of authority both in Solomon Islands and elsewhere (see for example, R –v- Tait [1977] 2Qd R 625) that establishes that an applicant for extension of time is bound to show that his appeal would have some prospect of success if it were permitted to go forward out of time. Here we are told nothing about the appellant’s proposed case or appeal other than the bare matter of the charges and the sentence imposed below.

It follows that in our opinion, the appeal against the rejection of the application to extend time for appealing must be dismissed. The decision of the Principal Magistrate must be affirmed.

Order accordingly.

Sir Robin Auld
President

McPherson, CBE, JA
Member

Williams JA
Member