Piaisi v Reginam [2015] SBCA 18; SICOA-CRAC 12 of 2015 (9 October 2015)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
COURT FILE NUMBER:	Criminal Appeal Case No. 12 of 2015 (On Appeal from High Court Criminal Case No. 379 of 2012)
DATE OF HEARING:	1 October 2015
DATE OF JUDGMENT:	09 October 2015
THE COURT:	Goldsbrough P Ward JA Lunabek JA
PARTIES:	TETKOU PIASI - V – REGINAM
ADVOCATES: Appellant: Respondent:	MR LAWRY WITH HIM B IFUTO'O MR KELESI
KEY WORDS:	TRIAL RECORD HONEST AND REASONABLE BELIEF UNDER SECTION 10 PENEAL CODE
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	ALLOWED
PAGES	1- 6

1. This appeal is against a conviction. The Appellant was convicted of rape following a trial which took place between 20 and 23 April 2015. Verdict was delivered on that last mentioned date in an oral decision of which there is no recording. A written judgment was published some weeks later. It is said that the later written decision contains much more information that the oral version delivered in Court. That much is not surprising, although the written judgment does not record its date of publication and, on its face, suggests 23 April 2015.
   
2. The appeal is brought on grounds which include both fact and law. Leave for that to be done and indeed leave to introduce a third ground of appeal was granted by a single judge prior to the hearing of this appeal even though in the first instance the appeal was filed without seeking leave, that is to say as if it were an appeal on a matter of law only under section 20 (a) of the Court of Appeal Act [Cap 6]. An appeal on any ground of appeal which involves a question of fact alone or a question of mixed law and fact requires leave under section 20 (b). It is regrettable that this provision is widely overlooked by counsel when preparing appeals. We suggest that more attention is given to it in future appeals.
   
3. In the first paragraph of his judgment the trial judge conveniently set out the circumstances of the alleged offence and of the trial. He said:- "This is a rape case. The complainant was a young woman. In July 2012 she lived at Gizo, Western Province. The Defendant was also at Gizo at that month and year. He met her and took her to a house. She alleged that he raped her in that house. She was examined by a doctor after the incident. He was charged with rape. He pleaded not guilty to the charge when he was arraigned. He elected to remain silent after the close of the case for the Crown. However, he called one witness to give evidence in support of his case".
   
4. The amended grounds of appeal are threefold:- the Court failed to make any findings as to whether the Accused believed the complainant consented to sexual intercourse, the Court failed to make any finding as to whether the belief of the Accused was reasonable, and the Court made findings that were other than in accordance with the recorded evidence and failed to record important evidence.
   
5. Grounds one and two relate to a provision found in section 10 of the Penal Code [Cap 26] which provides that a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. Thus, when raised in a trial, the prosecution must prove beyond reasonable doubt that the accused did not have such a belief or if he did that the belief was not reasonably held. Given that there is reference to the provision of section 10 within the written judgment it is safe, we conclude, to say that the defence provided by the section was raised within this trial.
   
6. The conclusion of the trial judge on the defence provided by section 10 can be found at paragraphs 8 and 9 of his judgment. It is clear that he considered the question raised and his conclusion as set out in those two paragraphs is that the defence did not apply in this instance. In setting out his conclusion the judge said:-
   

"The Court does not consider that the defence under section 10 applies in this case."

7. The learned judge then continued to set out the reasons why he arrived at that simple conclusion. Those reasons are dealt with later in this judgment. What the learned judge did not set out was whether his conclusion was such that he determined that the Appellant did not hold an honest belief that the girl consented or whether the Appellant held that honest belief unreasonably. His conclusion was nothing more than the defence does not apply. Given a generous interpretation it could be said that for the reasons he set out in the following text it is obvious that the trial judge concluded that there was neither honest nor reasonable belief in consent but such a finding is not set out in terms.
   
8. It is those reasons, set out in the judgment, given for arriving at the conclusion which themselves cause concern and also lead to the third and final ground of appeal. These proceedings appear not to have been recorded other than by the judge taking his own notes of the evidence. Those handwritten notes are required by section 186 of the Criminal Procedure Code [Cap 7] in the absence of any Practice Direction issued by the Chief Justice as to mechanical or electronic recording of the evidence. Section 186 does not require the trial judge to take notes of both questions asked and answers given verbatim but to take down the evidence or the substance thereof. Section 182, dealing with the recording of evidence by magistrates, more specifically provides that the evidence shall not normally be taken down in question and answer form but in the form of a narrative.
   
9. However recorded, it is important that the evidence given in the trial is recorded. For it is that evidence which must form the basis of findings of fact, findings that are necessary for the trial judge to formulate his or her conclusions.
   
10. In this instance there are references to findings that are not supported by any recorded evidence. Where, in paragraph 9, the trial judge sets out the reasons for rejecting the defence under section 10 of the Penal Code [Cap 26] he makes reference to, for example, the Appellant removing the shirt and skirt of the complainant. In the recorded evidence there is no reference to the complainant even wearing a skirt (as opposed to pants, shorts, trousers or whatever) let alone any reference to the Appellant removing that item of clothing. The next reference is to the complainant removing her own underpants "to ensure that he did not tear or break" them. Whilst in the recorded evidence there can be found the evidence "I took out my underpant" (page 21 appeal book, evidence in chief of the complainant) nowhere in the record of evidence is there any reference to why the complainant decided to remove her own underpants.
    
11. Further there is a recorded remark for the complainant in her evidence in chief which is simply "He said, he did not fuck your mother." In the record there is nothing surrounding that remark to give it any context. Yet in the judgment (paragraph 4) the same evidence becomes "She said that she was calling out for her mum while the defendant was having sexual intercourse with her."
    
12. Of further concern is that the only reference in any of the material within this appeal to the Appellant removing both the skirt and shirt of the complainant is to be found in the opening address of the prosecution. That opening address was provided to the trial judge in written form and that written document forms part of the appeal record. In the absence of any reference to the skirt and shirt in the record of evidence, it remains the only reference to both the skirt and shirt. The question arising is whether the judge has relied upon the opening address when in evidence such articles of clothing were not referred to.
    
13. Given that the written judgment did not come into existence for some weeks after the trial had ended and the oral judgment given did not, by all accounts, go into the level of detail to be found in the written version, what material was available to the learned trial judge at the time he wrote that judgment, on which to base his judgment? As part of the appeal record the notes of evidence taken down by the judge are available to this Court. Given that the judgment includes material not forming part of the notes of evidence, where does it come from?
    
14. It is not a requirement that the judge takes down every spoken word from every witness but is it a necessary requirement that the record of evidence is an accurate reflection of the effect of or substance of the evidence. A record which omits matters in evidence subsequently relied upon in the judgment cannot be said to be a proper record of the trial. Where, as in this case, matters are canvassed only in the submissions of counsel and not in the recorded evidence, findings can properly be called into question as not being founded upon evidence received during the trial but on extraneous material.
    
15. The position may have been different if the written judgment had been prepared and read out on the same date as the verdict was announced, as it may have been submitted that, even though the record of evidence may have been deficient, the trial judge could have been expected to have a proper recollection of the evidence. That is not the case here. The intervention of several weeks after trial will have made it all the more important for the trial judge to have a fair and accurate summary of the evidence presented at trial.
    
16. It is for those reasons that we find that the decision made by the trial judge on the defence under section 10 of the Penal Code cannot be relied upon. Clearly the question of consent was an issue during the trial and just as there must be evidence sufficient to prove beyond reasonable doubt that the complainant did not consent so there must be evidence from the prosecution sufficient to demonstrate to the same standard that the Appellant did not have an honest and reasonable belief that the complainant consented to the intercourse.
    
17. In our view it may have been sufficient for the learned trial judge simply to conclude as he did that the defence did not apply if, in arriving at that conclusion, the judge had set out the evidence and findings he made on that evidence in a way which supported his bare conclusion. But in this instance the reasons given for the conclusion itself do not reflect the evidence given during the trial. For that reason the conclusion cannot be supported and must be set aside.
    
18. Having set aside the conclusion that the defence available under section 10 of the Penal Code has not been considered properly, we turn to what order should be made on this appeal. The allegation arises from 2012, the first trial took place in April 2015 and now it is October 2015, some three years and three months after the event. A fresh trial, if ordered, would most likely not take place until 2016 at the earliest. We do not consider, in those circumstances, that an order for retrial is appropriate given the right to a fair trial within a reasonable time under the Constitution.
    
19. The appeal is allowed and the conviction is set aside. We make no order for a new trial.
    

.................................................................

Justice Goldsbrough

President of the Court of Appeal

....................................................................

Justice Ward, JA

Member of the Court Appeal

...............................................................

Justice Lunabek, JA

Member of the Court of Appeal