Chow v Reginam [2016] SBCA 7; SICOA-CRAC 25 of 2015 (22 April 2016)

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 Appeal Case No. 25 of 2015 (On Appeal from High Court Criminal Case No. 326 of 2015)
DATE OF HEARING:	12 April 2016
DATE OF JUDGMENT:	22 April 2016
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	Mary Chow - v - Regina
ADVOCATES: Appellant: Respondent:	Ms. Maelyn Bird Mr. Ronald Bei Talasasa (Jnr) & Ms. Suifa’asia
KEY WORDS:	Appeals from Magistrate’s Court. Jurisdiction for CA to entertain interlocutory appeals. Interpretation of S 283 (1) Criminal Procedure Code.
EX TEMPORE/RESERVED:	JUDGMENT RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1-6

JUDGMENT OF THE COURT

1. This is an appeal,pursuant to leave granted by Mwanesalua Deputy Chief Justice on the 16^th of March 2016, from the extempore Judgment of the Honourable Chief Justice, given on the 26^th of October 2015.
   

Background

2. On the 18^th of March 2014, the Appellant was convicted on four Counts of perjury relating to sworn statements and evidence she gave in civil proceedings in High Court case 125/2010.She appealed,was successful, and a new trial was ordered.
   
3. On the 13^th of March 2015, following retrial, she was acquitted by the Chief Magistrate E Kouhota.
   
4. On the 24^th of April the DPP personally signed an appeal against acquittal pursuant to s 283 (1) of the Criminal Procedure Code. The High Court date stamp for this document is the 24^th of April 2015, outside the 14 day period allowed for appeals from the Magistrate Court. On the 30^th of April, a Notice of Application for enlargement of time was filed signed by Ms Suifa’asia for the Director of Public Prosecutions.
   
5. The matter came before the Chief Justice on the 26^th of October 2015 when he enlarged time and stated that the Appeal lodged by the DPP was sanctioned by virtue of s 283 (1) of the Criminal Procedure Code.
   
6. This Appeal is not against the enlargement of time but only against the finding that the DPP had sanctioned the appeal against acquittal.
   

Jurisdiction

7. Neither the Appellant nor the Respondent’s submissions addressed the question of this Court’s jurisdiction to entertain this appeal. We raised this matter at the beginning of the hearing and it was clear theissue hadnot been considered by either counsel. We adjourned briefly to give them time to consider this.
   
8. Ms Bird submitted that s 22 of the Court of Appeal Act. Cap 6 provided a jurisdictional basis for this appeal. She said this was because the section sanctioned an appeal on a point of law from an Appellate decision of the High Court on an appeal from the Magistrate’s Court.
   
9. Mr Talasasa argued the sanction did not create jurisdiction for the appeal to be entertained. He submitted that s 22 only came into effect when the substantive appeal against the Magistrate’s Court decision was handed down by the High Court. He submitted if the section was interpreted as Ms Bird maintained, it may lead to countless interlocutory criminal appeals in Magistrate’s Court appeals to the High Court.
   

Decision on Jurisdiction

10. Appeals in criminal cases are governed by Part IV of the Court of Appeal Act. s 20 of the Act gives an automatic right of Appeal to a person convicted after trial on a point of law. An appeal against a question of mixed fact and law or against sentence requires the leave of the High Court.
    
11. Section 21 grants right of appeal to the DPP against acquittal on any ground which involves a question of law only or against sentence where such sentence is considered to be manifestly inadequate.
    
12. Section 22 (1) reads :

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

Provided that no appeal shall lie against the confirmation by the High Court of a verdict of acquittal by a Magistrate’s Court.”

Section 22is relevant for present purposes.

13. It can be seen that the Part IV gives automatic rights of appeal on questions of law to persons convicted following trial in the High Court or with leave on matters of mixed facts and law or sentence from High Court decisions, verdicts or sentences. The provisions go on to provide only a limited right of appeal against appellate High Court decisions relating to appeals from the Magistrate’s Court.
    
14. We do not read s 22 as broadly as Ms Bird’s submission. While this section could be more elegantly drafted, we are satisfied it limits appeals from the Magistrate’s Court to questions of law (excluding severity of sentence) where there is a final decision on any such appeal delivered by the High Court. In this case there were two preliminary (interlocutory) matters before the Honourable Chief Justice. The first was the enlargement of time which Ms Bird acknowledges was a question of fact. The second was the preliminary point relating to s 283 (1) of the Criminal Procedure Code. Neither of these substantively dispose of the appeal and the merits of the matter are yet to be determined.
    
15. We think it inconceivable the intention of the s 22 is to grant appeal rights to persons appearing in the Magistrate’s Court as accused that do not attach to persons being tried in the High Court. We are satisfied that s 22 grants a right of appeal on questions of law from a final decision of the High Court in its appellate jurisdiction. This accords with the overall scheme of Part IV.
    
16. Accordingly, we would consider we have no jurisdiction to entertain this appeal against what is essentially an interlocutory application.
    

Section 283 (1) Criminal Procedure Code.

17. This Section reads :

“'(1) Save as hereinafter provided, any person who is dissatisfied with any judgment, sentence or order of a Magistrates' Court in any criminal cause or matter to which he is a party may appeal to the High Court against such judgment, sentence or order:

Providedthat no appeal shall lie against an order of acquittal except by, orwith the sanction in writing of the Director of Public Prosecutions.

18. It is Ms Bird’s submission that there must be a separate written sanction in writing from DPP in addition to the petition for appeal pursuant to s 285. She cited an earlier example of a written sanction signed by a former DPP.
    
19. We consider that Ms Bird’s submission misinterprets s 283. In doing so it simply ignores the punctuation in the proviso.
    
20. The effect of the proviso is that no appeal shall lie against an order of acquittal in the Magistrate’s Court except by;

(i) the Director of Public Prosecutions

(ii) or, with the Sanction in writing of the Director of Public Prosecutions.

21. The words between the commas do not apply to appeals against acquittal by the DPP. They are clearly intended to apply to those situations where there has been a private prosecution bought and there is an attempted appeal against an acquittal. We are satisfied that is the clear meaning of the proviso.
    
22. While it appears in the past a certain form of written sanction was used (page 21 of the Appeal Book), we do not consider such form is necessary or required. Indeed it illustrates the error of Ms Bird’s interpretation of the sanction provisions, because one may ask rhetorically why does the DPP have to sanction himself?
    
23. In any event, sanction in its normal meaning means a confirmation, a ratification or authority. We are quite satisfied that by the DPP signing the petition dated 24^th April (and filed on the same day) there is a written sanction if, contrary to our decision,one was required.
    
24. For completeness under s 91(5) of the Constitution dealing with the DPP it states;

‘The powers of the DPP under the preceding subsection maybe exercised by him in person or through the other person act in accordance with general or specific instructions.’

25. There is nothing to suggest that the document seeking enlargement of time dated the 30^th of April was signed by Ms Suifa’asia other than in accordance with the DPP’s instructions.
    
26. We are satisfied thereis no jurisdiction for us to consider this matter and dismiss it accordingly (noting that the granting of leave cannot convey jurisdiction where it does not exist). Even if we had jurisdiction the appeal would have then dismissed for the reasons just given.
    

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Goldsbrough P

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Ward, JA

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Hansen JA