Kuper v Regina [2017] SBCA 18; SICOA-CRAC 5 of 2017 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Mwanesalua DCJ)
COURT FILE NUMBER:	Criminal Appeal Case No. 5 of 2017 (On Appeal from High Court Criminal Case No. 74 of 2016)
DATE OF HEARING:	2 October 2017
DATE OF JUDGMENT:	13 October 2017
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	LAZARUS KUPER - V - REGINA
ADVOCATES: APPELLANT: RESPONDENT:	Mrs S. Karani Mrs M. Suifa’asia
KEY WORDS:	Conviction – Correction of error by Judge
EXTEMPORE/RESERVED:
ALLOWED/DISMISSED	ALLOWED
PAGES	1- 3

JUDGMENT OF THE COURT

1. This is an appeal against conviction on two counts of defilement. At the hearing, we advised the appellant that the convictions are quashed and stated we would give our reasons in writing. We now do so.
   
2. On 25 October 2016, the appellant was tried in the High Court at Kirakira on two counts of Rape and three counts of Indecent Assault. All counts except the third allegation of Indecent Assault involved the same complainant.
   
3. At the close of the case for the prosecution the appellant was acquitted on the charge involving the second girl. The appellant then elected to remain silent and called no evidence.
   
4. Judgment was dated 6 December 2016 but was not delivered or communicated to counsel until 17 February 2017. In it, the learned judge acquitted the appellant of rape and the remaining counts of indecent assault but convicted the appellant under section 166 of the Criminal Procedure Code of defilement contrary to section 143(1)(a) of the Penal Code.
   
5. On 17 February 2017 the court also delivered a judgment on sentence, dated 8 February 2017, written without counsel being present. The latter judgment, after rehearsing the convictions, continued:
   

“...no sentence will be imposed on him as the victim was above the age of fifteen years when the offences were committed”.

The court is unable to reverse the convictions due to the principle of functus officio. It would seem to this court that remedies may lie in the Court of Appeal.”

6. The judge then signed a certificate, also dated 8 February 2017 but clearly drafted later, that it was a fit case for appeal on the following grounds:
   

“The appellant was acquitted on the two counts of rape but I convicted him on the two counts of defilement in the mistaken belief that the complainant was under the age of 15 years at the time of the alleged offending. On reviewing my trial notes to prepare a sentencing decision I found I was in error in my belief about the age of the complainant who was in fact over the age of fifteen years at the time of the alleged offending. As I had signed the Judgment on 6 December 2016 I declined to revisit it but imposed no sentence. I invited counsel to correct my error in the Court of Appeal when my judgment was delivered on 17 February 2017.”

7. This was an unfortunate mistake especially as the age of the girl was accurately included in the list of agreed facts placed before the court by counsel at the outset of the trial. It needed to be corrected as soon as it was discovered but the judgment was not written until some six weeks after the conclusion of the trial and then not delivered for a further two and a half months. During that time the appellant was waiting to know his position. This Court has been given no explanation for the retention of the judgment after it was signed. Had it been delivered timeously, counsel would undoubtedly have noticed the error and been able to take steps to correct it.
   
8. Any court contemplating a possible conviction under sections 159 to 174 of the Criminal Procedure Code of any offence with which the defendant has not been charged should advise counsel of the possibility and provide an opportunity to address the court.
   
9. Having discovered his error, the judge was correct not to try and alter it but should, as soon as possible, have advised counsel. Why the further delay occurred is unexplained and regrettable.
   
10. Having signed the judgment, the judge was functus. The court may always correct an error in any judgment or order if the order does not accurately reflect the court’s intention at the time the order was made. This was not such a case. The conviction was an accurate reflection of the judge’s intention at the time he made it and the judge, having subsequently discovered his mistake, was correct to advise counsel that their remedy lay in the Court of Appeal.
    
11. No judge is immune from error but, if he realizes he has made one, his immediate priority must be to inform counsel and parties in the case and advise an immediate appeal. It is this need for immediacy which should be the primary aim and we fail to understand why, once the error in the present case was apparent, the judge delayed even further.
    
12. The conviction of the appellant on both counts of defilement are clearly wrong. The appeal is allowed and the convictions quashed.
    

......................................................
Goldsbrough P

......................................................
Ward JA

......................................................
Hansen JA