Chow v Regina [2018] SBCA 4; SICOA-CRAC 41 of 2017 (11 May 2018)

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.41 of 2017 (On Appeal from High Court Criminal Case No. 326 of 2015)
DATE OF HEARING:	30 April 2018
DATE OF JUDGMENT:	11 May 2018
THE COURT:	Goldsbrough P Hansen JA Young JA
PARTIES:	MARY CHOW AND REGINA
ADVOCATES: APPELLANT: RESPONDENT: 1ST 2ND	Mr. A. Kesaka Mr. R. B. Talasasa Ms M. Suifa’asia
KEY WORDS:
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	ALLOWED
PAGES	1- 7

JUDGMENT OF THE COURT

Introduction

1. In March 2015 Mrs Chow was acquitted of four charges of perjury in the Magistrates Court. The crown appealed against the acquittal. In the High Court the appeal was allowed the acquittals set aside and the case sent back to the Magistrate’s Court for retrial.
   
2. Mrs Chow now appeals against the High Court’s decision. Mrs Chow’s case is that the Judge in the High Court misconstrued the defence, reversed the onus of proof relating to such the defence, and misunderstood the relevant evidence.
   
3. This is an appeal governed by S22 of the Court of Appeal Act and so the appeal is limited to questions of law only.
   

Background Facts

4. Mrs Chow owns a property at Point Cruz. She leased the property to Mrs. Podarua. Mrs Podarua’s business was not successful and she fell into arrears with the rents. Mrs Chow and Mrs Podarua could not agree on the arrears of rent and so Mrs Chow sued Mrs Podorua in the High Court for the rental she claimed was owing. Mrs Chow’s claim was based on the proposition that there was an oral tenancy agreement. On three occasions, on 9 April, 14 May and 17 May 2010, Mrs Chow swore statements in support of her High Court claim that the lease was an oral lease agreement.
   
5. When the civil case came to trial on 27 July 2010 Mrs Chow gave evidence that there was no written tenancy agreement, but the agreement was an oral agreement. Mrs Chow’s evidence was accepted by the trial Judge.
   
6. It turned out those statements were not true. After the High Court civil case was completed Mrs Podarua found the written agreement. The agreement had been signed on 17 August 2007.
   

The Court Cases

7. In the Magistrates Court counsel for Mrs Chow raised the defence of mistake of fact (S10 Penal Code). The Magistrate in acquitting Mrs Chow said;
   

“The main issue in this case is whether the accused when giving oral evidence in court and the sworn statement she made in Civil Case No. 125 of 2010; she wilfully made those statements knowing them to be false or does not believe them to be true”.

8. The Magistrate then considered the defence of mistake of fact. He said there were two elements for the prosecution to disprove, first that Mrs Chow had made an honest mistake when she said there was no signed lease and second an objective assessment that the statement was reasonable. Mrs Chow’s evidence before the magistrates was that she had no recollection of signing the lease.
   
9. After analysing the evidence the Magistrate concluded that it was understandable in the circumstances that Mrs Chow had not accurately remembered signed the lease. He found she was “honest in what she told the court”.
   
10. The Magistrate then said;
    

“I had considered all evidence including the tendered documents and statements which form part of the evidence before the court and I am not satisfied that prosecution has proved beyond all reasonable doubt that the accused when sworn as a witness wilfully makes a statement she knows to be false or that she wilfully made 3 sworn statements she knew to be false in Civil No. 125 of 2010, neither did the prosecution as a matter of law negative the existence of an honest and reasonable belief raised by the defence accordingly. I find the accused not guilty of all four charges against her must acquit the accused of all 4 charges”.

11. In the High Court the Judge after setting out S10 of the Penal Code (mistake of fact) said;
    

“The test set out in section 10 stipulates both a subjective and objective element; subjective where it entails an honest but mistaken belief and objective in terms of a reasonable belief”.

12. The Judge noted that the Magistrates’ finding of fact that, given the lapse of time between signing the lease (in 2007) and the sworn statements and evidence (in 2010), memories were bound to fade. The Judge said it was not for the High Court to substitute its view of the evidence. However, the Judge went on to say;
    

[32] “ I have had the opportunity to consider the undisputed evidence adduced in court in this matter, which included the following pertinent matters. That on the 4^th August 2007, there was an unsigned written agreement, yet on the next day, 5^th August 2007, the same agreement was executed between the parties, in the presence of two independent witnesses; the terms being exactly the same as the draft agreement of 4^th August 2007”.

[33] While the existence of the unsigned agreement was not denied it seemed unusual, odd that the existence of a signed agreement which ought to have had more significance, relevance and impact, completely ignored, or forgotten by the respondent, but not the appellant. It is ironic the respondent could accept there was a draft unsigned agreement which she could recall well, but could not and denied the existence of any signed agreement, when that fact alone should have been sufficient on its own for her to remember because of the importance and significance of such a document, a fortiori, when it was executed on the very next day. Those were matters which the learned Magistrate did not consider in his assessment of the evidence, concluding that with the lapse of time the respondent was entitled to hold the view albeit mistakenly, there was no signed agreement, with little or no thought given as to whether the existence of a draft unsigned agreement in the circumstances could have also jogged her memory, or reminded her of the existence of a signed agreement that had been entered into on the next day.

13. The Judge also considered the learned Magistrate failed to correctly apply the test where the defence of mistake of fact was raised. He said the burden was on the prosecution to prove beyond reasonable doubt that the belief was not merely honest but also not reasonably held.
    

The Judge said;

To conclude that the belief was honest and reasonable in the absence of a signed written agreement, without further verification, insufficient on its own and would be unreasonable in the circumstances of the case.

14. As we understand this point the Judge concluded that the Magistrate had not adequately considered reasonableness in relation to mistake of fact. He therefore allowed the appeal on this basis and sent the case back for a retrial in the Magistrates Court.
    

Discussion

15. After discussion with the court counsel for Mrs Chow and the Crown accepted that S10, mistake of fact, had no application to be facts of this case. We agree. Our conclusion that mistake of fact does not apply in this case does not as counsel for Mrs Chow seemed to think narrow the defences available to Mrs Chow. On the contrary the inapplicability of mistake of fact means that an objective assessment of the reasonableness of Mrs Chow’s honesty is no longer relevant.
    
16. Section 102 (1) of the Penal Code states:
    

Any person lawfully sworn as a witness or as an interpreter in a judicial proceeding who wilfully makes a statement material in that proceeding which he knows to be false or does not believe to be true shall be guilty of the misdemeanour termed perjury, and shall be liable to imprisonment for seven years.

17. Pursuant to S.102, in this case, the prosecution had only to prove that Mrs Chow deliberately lied when she said she had not signed the lease. Mrs Chow accepted all of the other elements of perjury had been established.

Nothing further needed to proved by the crown. No element of objective reasonableness as required in mistake of fact had to be assessed and proved.

18. The decision of the Judge in the High Court was focused on the applicability of mistake of fact and the correctness the Magistrates’ analysis of such a defence. This was an error given mistake of act had no application to this case. The Judge allowed the appeal and referred the case back for trial based on this error. As we have noted both the Magistrate and High Court were somewhat led astray by counsel for Mrs Chow (not current counsel in this appeal) who raised this defence.
    
19. We therefore allow the appeal against the decision of the High Court.
    
20. We are satisfied the acquittal of Mrs Chow by the Magistrate should be reinstated. As we have noted the only trial issue was whether the prosecution could prove a deliberate lie by Mrs Chow about the lease. The Magistrate found, for reasons given, Mrs Chow was an honest witness. And so when she said she had honestly believed she had not signed the lease the Magistrate found this was the truth. This was a finding open to him. And as the Magistrate correctly identified this meant the prosecution had not proved an essential element of perjury. We consider therefore the acquittal by the Magistrate was correct. In those circumstances we see no reason to return the case to the Magistrates Court for another trial.
    

Result

21. The appeal is allowed. The orders of the High Court are set aside.

The orders of the Magistrate of 13 March 2015 of acquittal on all four charges of perjury are reinstated.

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Goldsbrough P

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Hansen JA

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Young JA