Dagi v R [2021] SBCA 13; SICOA-CRAC 9 of 2020 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Dagi v R
Citation:
Decision date:	1 February 2021
Nature of Jurisdiction	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
Court File Number(s):	09 of 2020
Parties:	John Patterson Dagi v Regina
Hearing date(s):	Paper Hearing October 2020 sitting
Place of delivery:
Judge(s):	Goldsbrough P Lunabek JA Gavara-Nanu JA
Representation:	Kausimae H for Appellant Suifa’asia for Respondent
Catchwords:	Obligation to consider evidence, make finding and set them out in a judgment
Words and phrases:
Legislation cited:
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	Allowed
Pages:	1-4

JUDGMENT OF THE COURT

1. John Paterson Dagi, hereinafter referred to as the appellant, seeks to appeal the conviction recorded against him for the offence of rape following a trial in the High Court which took place in October 2019. Judgment following that trial was delivered on 23 March 2020.
2. The allegations arose from 22 February 2017 when it was alleged that the appellant carried his wife, with whom he did not have good relations following a family dispute, back to their home and had sexual intercourse with her without her consent.
3. Together with an agreed statement of facts, the trial court heard from the complainant and received medical and police evidence. The couple were estranged but the wife agreed to return following pleas from her husband. She did not go to live at the former matrimonial home but her parents. It was from there that she refused to return home, but her husband’s will prevailed by him carrying her from her parents. He did not have to carry his wife all of the way there as at some point she asked to be put down and reluctantly agreed to follow him.
4. A little later their son arrived, having followed his mother and father from his grandparents' house. He was despatched back to his grandparents with instructions to bring his younger brother to the former matrimonial home. It was during his absence that the appellant asked his wife to have sex with him. Although the gist of her answer was negative, there is an issue as to whether she simply failed to respond to the request. It was put to her in cross-examination that she simply did not respond, and her answer suggested that she did remain silent, although through fear rather than reluctance to say no.
5. It is this evidence which the trial judge was obliged to consider and for the trial judge to make findings as to what did take place. Regrettably, no such consideration was undertaken and no findings made. The judgment simply recites that there was evidence of a rape.
6. The Office of the Director of Public Prosecutions, representing the respondent to this appeal, concedes that the trial miscarried when the trial judge failed to discharge his duty to consider and accept or reject the evidence presented to him and to subsequently make findings on that evidence.
7. Submissions from both the appellant and respondent stress the obligation to give reasons for a decision in a contested trial and complain that this was not done. We could not agree more, but would take the matter one step further and suggest that it was not simply a question of failing to give reasons for the decision. The evidence appears never to have been considered by the trial judge. He heard it, as one can tell from the transcript, but did nothing with it.
8. Such dereliction of duty is, fortunately, rare. Given the time, effort and resources expended to bring any matter to trial. It is shocking to observe that the presiding officer makes no effort to discharge the duty to consider the evidence, make findings on it and set out the reasons for those findings and the ultimate decision.
9. This appeal against conviction, as conceded by the Crown, must be successful. The conviction cannot stand and will be quashed within this appeal. The outstanding question, except what should happen to a judicial officer displaying this level of disinterest in duty, is whether the matter should be remitted to the High Court for a retrial.
10. The interests of justice dictate whether a matter is remitted. On the one hand are the interests of the victim, her family and neighbours and society, in general, having alleged offenders brought before a competent court. On the other hand, are the rights of the alleged perpetrator in receiving a fair trial within a reasonable time. Finally, there are the practical implications of a retrial. In this instance, the appellant has already served an effective sentence of imprisonment of more than four and one half years. Although released on 11 August 2020 on bail pending appeal, he was taken into custody for this and remained in custody from his arrest in 2017.
11. Part of the sentence imposed following trial was for an unrelated assault on the same victim as this rape allegation. For assault, the appellant was sentenced to one-year imprisonment. For the rape, the appellant was sentenced to two years concurrent. No allowance was given or even mentioned concerning the pre-sentence period of custody.
12. In the event, this appeal is allowed. The conviction is set aside. We do not order that the matter is sent back to the High Court for trial a second time. The appellant has already spent more than forty-one months in custody which represents an effective sentence of fifty four months and we consider that a retrial would be an academic exercise whilst only adding to the distress and discomfort already felt by the victim. The appellant is released from any obligations under the terms of his bail pending appeal.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member