Manai v R [2019] SBCA 8; SICOA-CRAC 4 of 2019 (18 October 2019)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Manai v R
Citation:
Decision date:	18 October 2019
Nature of Jurisdiction	Appeal from the High Court of Solomon Islands (Mwanesalua J)
Court File Number(s):	CRAC 4 of 2019
Parties:	Manai v Reginam
Hearing date(s):	8 October 2019
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Mr. B Alasia for the Appellant Mr. A Kelesi for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Panel Code Act, s137, Criminal Procedure Code, s117, Penal Code (Amendment) Act (Sexual Offences) Act 2016, Constitution Act ,s 10 (2) (a)
Cases cited:	R v McVitie [1960] 2 QB 483 Tii v R [2017] SBCA Kemakeza v R [2008] SBHC 44 R v Iroi Bade v R [1988] SBHC 10 Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] 25 CrAppR 72
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-14

JUDGMENT OF THE COURT

Introduction

1. This is an appeal dated 14^th June 2019 filed against conviction on one count of rape contrary to section 137 of the Penal code Act.
2. The appellant was sentenced to 5 years imprisonment.
3. The appeal is only made against the conviction.
4. The conviction is challenged on the basis that the information was defective; the verdict is unreasonable as it cannot be supported having regards to the evidence; and the learned Judge failed to properly consider and apply the onus and criminal standard of proof.

Factual backgrounds

5. The Appellant, Ben Manai, was charged and tried with rape under section 137 of the Penal Code.
6. The complainant is a married woman. She was nine months pregnant when the appellant committed rape on her on 22^nd March 2015.
7. On the night of 21^st march 2015, she went to the market at Lunga and spent the night there with her aunty. In the early morning of 22^nd March 2015, she left Lunga and followed the sand beach to return to the EMCO area near Markwarth area where she was living with her brother.
8. As she was walking along the beach, she saw the appellant coming behind her. She left the beach and walked inland along a foot path to her brother’s house where she was residing. She wore a lavalava that day.
9. When the appellant reached her, she told him to walk ahead of her as she was walking slowly. The appellant walked in front of her but suddenly moved back and pulled her into the bush. He told her to bend down. She told him that she would not bend as she was pregnant. The appellant forced her to bend down.
10. She said she felt the appellant’s penis penetrated her vagina about one to two centimetres. She demonstrated that depth with her finger in her evidence. After he did that to her he withdrew his penis and escaped from the scene of the crime.

Judgment appealed from

11. In his judgment dated 8^th February 2019, the learned Judge concluded:
    • “At the close of the prosecution case, the appellant elected to remain silent. There is therefore no evidence from the defence to rebut the evidence of the victim.
    • The court therefore finds the accused (appellant) guilty of rape as charged in the indictment. Orders accordingly.”[Our Emphasis].
12. The appellant now appeals against conviction. He contends that the conviction should be set aside on the basis of errors of law and fact. He seeks orders to quash his conviction and make substitution of acquittal.

Appeal grounds and submissions

13. The appellant advances this appeal on three (3) grounds. The first ground is that the information is defective and bad in law. The second ground is that the conviction is unreasonable having regard to the evidence. The prosecution has failed to prove the guilt of the appellant on the criminal standard of proof of beyond reasonable doubt. The third ground is that the learned Judge fail to properly assess and apply the onus and the criminal standard of prove.

Ground 1 of appeal

14. We begin with the first ground of appeal. The appellant was charged and convicted under section 137 of the Penal Code and not under section 136 of the Penal Code. The defect or error is contended to amount to an error of law and so bad in law.
15. It was submitted for the appellant that the learned judge erred in law when he convicted the appellant under section 137 of the Penal Code. Section 137 is the penalty provision for rape which is provided for under section 136 of the Penal Code. It is submitted that the error is fatal and bad in law such that the conviction is void.
16. The appellant refers and relies on a number of English case authorities including R v McVitie [1960] 2 QB 483 where the English Court of Criminal Appeal drew a distinction between a “ bad” indictment disclosing no offence known to the law and an indictment which was simply “defective” or “imperfect”.
17. The Respondent on behalf of the Crown noted that there was no issue raised with regards to section 137 being used in the information. Counsel for the appellant in his closing submissions in the Court below referred to section 136 of the Penal Code and not section 137, and this is because section 136 of the Penal Code provides for the offence section. Under the offence section, it has the statement of offence and the particulars of the offence section.
18. The Respondent says also that as far as the information is concerned, the only error is the use of section 137 (number) under the statement of offence instead of section 136. All other vital or fundamental details of section 136 of the Penal Code are present. The statement of the offence says rape and the particulars of the offence outlines the names of the appellant, his address, place of offence, date of offence and the victim that the appellant alleged to have committed the offence against. He further explains that the starting point to look at is section 117 of the Criminal Procedure Code (Chap.7) and then section 120 of the Criminal Procedure Code.
19. The Crown Counsel relies on the case of Kemakeza v Regina [2008] SBHC 44, where His Lordship Chief Justice Palmer dealt with this similar issue in that case and also made reference to the case of Bade v Regina [1988] SBHC 10.

Considerations on ground 1

20. We set out sections 136 and 137 of the Penal Code which are of contention in the first ground of the appeal. They provide respectively as follow:
    • “Definition of rape
    • 136. Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.
    • Punishment of rape
    • 137. Any person who commits the offence of rape shall be liable to imprisonment for life.”
21. We begin with two interrelated observations in the considerations of the first ground of appeal. The first is that the learned Judge in his judgment under appeal used the word “indictment” instead of the word “charge” or “information” as set out specifically in the respective provisions of the Penal Code, the Criminal Procedure Code and as used and referred to in the Constitution (section 10) of this country. We think it is wrong as there is no such a word “indictment” anywhere in the Constitution, the Penal Code or the Criminal Procedure Code of the Solomon Islands.
22. The second, is that the current charge or information on the offence of rape under sections 136 and 137 of the Penal Code was laid against the appellant (as the alleged offence occurred on 22^nd March 2015) before both sections 136 and 137 of the Penal Code were repealed by the Penal Code (Amendment) Act (Sexual Offences) Act 2016 (Act No, 3 of 2016). Section 5 of the Penal Code (as amended) 2016 provides that sections 136 to 150 of the principal Act are repealed and replaced with new definitions of sexual offence sections and offences sections. The Commencement Notice appoints 1 June 2016 as the date the Act commences.
23. We accept the prosecution submission that the starting point for consideration when there is a defect in the charge or information is to look at the provisions of sections 117 and 120 of the Criminal Procedure Code. Section 117 states:
    • “Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”. Section 120 states:
    • “The following provisions shall be apply to all charge and information and, notwithstanding any rule of law or practice, a charge or information shall, subject to the provisions of this Code, not be open to objection in respect of its form or contents if it framed in accordance with the provisions of the Code.
    • (a) (i) a count of charge or information shall commence with a statement of the offence charged, called the statement of offence;
    • (ii) the statement of offence shall described the offence shortly in ordinary language avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;
    • (iii) after the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:
    • Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, noting in this paragraph shall require any more particulars to be given than those required;...”
24. The charge or information which is the subject of this appeal has the following details:
    • Statement of offence
    • Rape, contrary to section 137 of the Penal Code.
    • Particulars of offence
    • That Ben Manai of Sari, Marau Sound, Guadalcanal Province at Omex area, Lunga in the Guadalcanal Province on the 22^nd March 2015 did Commit Rape of Nancy Lima.
25. We agree with the submissions of the Respondent on behalf of the Crown that the only error in this case is the use of section 137 (number) under the statement of offence instead of 136. The defect or irregularity seems to be of a clerical nature or omission but it does not amount to a material irregularity. It did not affect the appellant’s understanding of what he is charged for, the conduct of the trial and the conclusion reached by the learned trial judge. In Kemakeza v Regina, Chief Justice Palmer, among other matters, dealt with a similar issue of a defective charge whether it rendered the charge bad, the Chief Justice said:
    • “So while there was a defect by way of an omission of the definition section, I do not see how it can be argued that the appellant was prejudiced or embarrassed by the omission. I wouldn’t go so far as to describe it as material irregularity; may be an irregularity but it cannot be sufficient so as to make the charge bad in law.”
26. We consider that this is not a case where the statement of the offence provides a different description to what the particulars of the offence stipulate. The offence that the statement of the offence referred to is Rape, except for the penalty section. There is no ambiguity to the appellant and there is no error of law as a result of such a defect in the information.
27. We are satisfied that the first ground of appeal cannot succeed. We therefore reject it.

Grounds 2 and 3 of appeal

28. We now consider the second and third grounds of appeal in that the verdict is unsafe and cannot be supported having regard to the evidence. The prosecution did not prove the guilt of the appellant to the required criminal standard of proof. The learned Judge failed to properly consider and apply the onus and criminal standard of proof.
29. The appellant submitted that the conviction is unsafe and cannot be supported having regard to the evidence. The appellant also submitted that the learned trial Judge erred in failing to properly consider the whole of the prosecution’s case which includes the inconsistencies of the witnesses, the physical evidence and the medical report of the complainant.
30. The appellant’s Counsel referred to specific aspects of evidence of the complainant which were contradicted by the evidence of the two other prosecution witnesses (Fred Nengipla and Lini Isa).
31. The Respondent’s Counsel conceded on behalf of the Crown that the learned trial judge did not articulate or spell out how he arrived at his final decision. The learned Judge stated the brief facts of the case without analysing the evidence of the witnesses during the trial before he reached his decision.
32. The Respondent’s Counsel noted that the records of the transcripts of the proceedings at the lower court are available and the Court is invited to consider the evidence adduced during the trial and can also make determination of grounds of appeal based on what is recorded.

Considerations on grounds 2 and 3

33. We note the availability of the records of the transcripts of the proceedings at the High Court.
34. We also note the prosecution’s concession of the lack of assessment of the learned trial Judge of the evidence leading to his decision.
35. We further note of the prosecution’s invitation to the Court to consider evidence on the records.
36. We consider the learned trial Judge failed to properly and adequately assess the credibility of the evidence of the prosecution witnesses before he made his findings and decisions. We are not prepared to consider the evidence from the records of the transcripts of the proceedings in the circumstances of this case.
37. We further consider that, in the judgment under appeal, the learned trial judge failed to properly consider and apply the onus and the criminal standard of proof. This is reflected at paragraphs 7 and 8 of his judgment when he stated:
    • “At the close of the prosecution case the accused elected to remain silent.
    • There is therefore no evidence from the defence to rebut the evidence of the victim.
    • The court therefore finds the accused guilty of rape as charged in the indictment.”(Emphasis added).
38. We consider, amongst others, only two case authorities to illustrate the point. In Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] 25 CrAppR 72; [1935] AC 492 Viscount Sankey LC Stated at pages 95 and 481-482 respectively:
    • “Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilty subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable double, created by the evidence given be either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilty of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”.

In R v Wilson Iroi (Unrep. Criminal Case No.17 of 1991) Muria J stated at page 3:

• “I remind myself that the burden is on the prosecution throughout to satisfy the Court beyond reasonable double of the guilty of the accused. If there is double, slight though it might be, the accused must be given the benefit of that double. The overriding guiding principle in all criminal trials must be that a person charged with a criminal offence must be presumed to be innocent until proved guilty or has pleaded guilty. That principle is enshrined in section 10(2) (a) of the Constitution [...]”.
• Section 10(2) (a) of the Constitution states:
• Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty (emphasis added)
• The only onus which the Appellant bears is in respect to the defence of ‘insanity’ as outlined in the Penal Code (Ch.26) and the Criminal Procedure Code (Ch.7) which is to the ‘standard of proof of on the ‘balance of probabilities; and ‘negative averments’ as referred to in section 202 of the Criminal Procedure Code (Ch.7) to the ‘standard of proof of on the balance of probabilities.”

39. We therefore allow the appeal on grounds 2 and 3 and we set aside or quash the conviction of the appellant.
40. We need then to consider whether the appellant is to be retried in the High Court. We note that the appellant was sentenced for 5 years imprisonment on 15^th March 2019 as the result of his conviction in the trial.
41. We note also that the appellant did not challenge his sentence on this appeal. Without commenting on the adequacy of the sentence of 5 years as an appropriate end sentence for the offence of rape in the circumstances, it is appropriate that we consider the appellant’s situations since his arrest and remand in custody to the date of his sentence and his appeal in order to find out whether he has pre-sentence custody and whether it was continuous or released on bail for some period.
42. If the appellant had pre-sentence custody period, the learned trial Judge would have given him an appropriate allowance in his favour to take account of that in his sentencing remarks. Whether the learned trial Judge had that in his mind when considering the starting point sentence before he arrived at an end sentence of 5 years is difficult to say and to see from the judgment as there is no exposition of the reasons of the sentence in the judgment under appeal.
43. In Tii v Regina [2017] SBCA 6, this Court set out the following guidance on the question of pre-sentence custody when facing similar concerns in that case:
    • “...if an offender has been in pre-sentence custody, the sentencing judge should consider making an appropriate allowance for that.
    • ...In the normal course, pre-sentence custody should be taken into account in an offender’s favour. If a sentencing judge decides not to do so, he should say so expressly and explain why he is not doing so.
    • ...There is no prescribed way for making allowance for pre-sentence custody. It is important that a sentencing judge take account of all the likely consequences of the way in which he does so. It is reasonable to expect the prosecutor and defence counsel to make any relevant submissions.
    • ... where the offender was in pre-sentence custody solely on account of the offence for which he was being sentenced and where the period of pre-sentence custody was continuous (that is, unbroken by periods out of prison on bail), this should be done simply and effectively by ordering that the sentence be deemed to have commenced on the date he was taken into custody. See Penal Code s. 24(5). It would be necessary to make such an order as part of the sentence to ensure that the date he was first taken into custody was used as the starting point in calculating one-third of the sentence for remission purposes.
    • ...A sentencing judge should expose his reasoning, by indicating what matters he has taken into account at each step along the way to arriving at the sentence. Before imposing the sentence, he should review the allowances he has made along the way to ensure that the sentence he has provisionally decided upon is just and appropriate in the circumstances of the case.
44. The appellant was arrested and remanded in custody on 22^nd March 2015. On 15^th March 2019, he was sentenced for 5 years imprisonment. This means that he has served 6 years effective sentence in custody. His pre-sentence custody was continuous from 22 March 2015 to the date of his sentence on 15^th March 2019. This is more than his actual sentence of 5 years imprisonment. The time he had already spent in custody from 22 March 2015 to 15^th March 2019 was not deducted or taken into account when he was sentenced on 15^th March 2019 which must be added to the effective time he had already spent in custody which is far more than his actual sentence of 5 years.
45. In these circumstances, we consider that it is not appropriate to order a re-trial of the appellant.

Orders

46. We make the following orders:
    1. Appeal allowed;
    2. Conviction quashed or set aside; and
    3. Order that there is no re-trial of appellant.

Dated at Honiara, this 18^th October 2019
By the Court
Goldsbrough P
Lunabek JA
Gavara-Nanu JA