R v Faulkner (No 2) [1983] SBHC 18; [1983] SILR 282 (22 December 1983)

[1983] SILR 282

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 28 of 1983

R.

v

FAULKNER (NO. 2)

High Court of Solomon Islands
(Daly C.J.)
Criminal Appeal Case No. 28 of 1983

22nd December 1983

Procedure - criminal appeal - out of time - extension of time - principles applying to - section 284 Criminal Procedure Code.

Facts:

The Respondent was acquitted after trial by a magistrates’ court on 5th December, 1983. The time for appeal expired on 20th December, 1983. On 21st December 1983 the Attorney-General (as Director of Public Prosecution) applied for extension of the time to appeal against the acquittal.
At the trial the prosecution was represented by counsel.

Held:

Where a party was represented at the trial, it would be an unusual case where that party can urge substantial Grounds to explain a delay but does not rely upon s. 284(2)(b) Criminal Procedure Code (a “case in which a question of law of unusual difficulty is involved”). Regard will also be had to the principles enunciated in The Queen v. Brown (1963) S.A.S.R. 190 which require it to be shown “that justice has actually miscarried” before extension is granted.

In relation to an appeal against acquittal the court must scrutinize most carefully the grounds advanced. In this case no sufficient matters had been advanced to establish “good cause”. Application refused.

Other case considered:

The Secretary for Law v. Tisunkac Nawok Domstock (1974) PNGLR 246

For Applicant: F. Mwanesalua (who did not appear in the court below)
For Respondent: K. Brown

Daly CJ: This is an application inviting the Court to exercise its discretion to enlarge the time for appeal from a criminal case heard in the Magistrates’ Court. Section 284 of the Criminal Procedure Code provides as follows: -

“284(1) Subject to the provisions of any Rules of Court every appeal shall be in the form of a petition in writing signed by the appellant or his advocate and shall be presented to the Magistrates’ Court from the decision or which the appeal is lodged within fourteen days of the date of the decision appealed against:

Provided that the Magistrate’s Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.

(2) For the purposes of this section and without prejudice to its generality “good cause” shall be deemed to include,

(a) a case where the advocate engaged by the appellant was not present at the hearing before the Magistrates’ Court and for that reason requires further time for the preparation of the petition;

(b) any case in which a question of law of unusual difficulty is involved;

(c) a case in which the sanction of the DPP is required by virtue of section 282.”

Therefore this application relates to the power contained the proviso to subsection (1).

The agreed circumstances are these. Mr Frank Faulkner (“the Respondent”) appeared before a Magistrates’ Court charged with an offence against the Immigration Act, 1978. He pleaded not guilty and, after a trial on 5th December, 1983 the Respondent was acquitted. The Attorney-General, who, in the absence of a Director of Public Prosecutions, is also performing the function of that office pursuant to section 91(9) of the Constitution, seeks to appeal against that acquittal. At the trial, and when judgment was given, the prosecution was represented by a legal officer of the Attorney-General’s Chambers. As one would expect, the Senior Immigration Officer was also present. Neither of these officers apparently saw fit to inform the Attorney-General of the result or to seek his decision on an appeal. It was not until Monday 19th December 1983 that the Attorney-General became aware of the result from reading a newspaper (the newspaper was in fact on sale on Friday) and consideration was thereupon given to an appeal. Even then application for extension of time was not made until Wednesday 21st December 1983. The last day upon which an appeal could be lodged without extension of the fourteen days provided for in section 284(1) C.P.C. was Tuesday 20th December, 1983.

The principles applying to an application of this nature have been adumbrated in a number of cases in England, Australia and Papua New Guinea. A useful summary is set out in The Queen v. Brown (1963) S.A.S.R. 190 at pages 191 and 193: -

“When the time prescribed by the Act has expired the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal.” (At page 191).

“It seems to us that, if we have jurisdiction to sanction the institution of an appeal at this stage, then, in the exercise of our discretion, we ought not to do so unless we are satisfied that there is, at the least, grave reason to apprehend that justice has actually miscarried, that is to say, that the conviction was contrary to the truth and justice of the case.” (At p. 193).

These principles have been found applicable in Papua New Guinea in The Secretary for Law v. Tisunkac Nawok Domstock (1974) PNGLR 246. In all jurisdictions it is common ground that an application for extension of time for appeal can only succeed where substantial grounds are given for the delay.

I would also add that, where the appeal sought to be brought is an appeal by the prosecution against an acquittal, the court must scrutinize most carefully the grounds advanced for an extension of time. This arises from the general principle that no person should be put in jeopardy twice unless the law clearly so permits, or the interests of justice clearly so require.

I return to the facts of this case. No reliance is placed on any of the matters said to constitute “good cause” in section 284 (2) C.P.C. Nor is it submitted that there is “grave reason to apprehend that justice has actually miscarried.” What is advanced as “good cause” is, in effect, a break down in communication between the Attorney-General and his officers and the Immigration Department and the Attorney-Generals Chambers. Where a party is professionally represented before a court, counsel is in a position to assess immediately whether an appeal should or should not be brought and to advise his client, whether it be an individual or a government department, on the prospects of success. Even if a written opinion is requested the fourteen days provided for in section 284(1) C.P.C. should be sufficient and, in any event, in an appropriate case reliance can be placed upon section 284(2)(b) C.P.C. It will be an unusual case, then, where a professionally represented party can urge substantial grounds to explain a delay which requires an extension of time but does not rely upon s. 284(2) (b) C.P.C.

Accepting that the delay here is of a very short order, nevertheless I do not consider that the matters advanced are sufficient “good cause” to extend the time for appeal against a finding of acquittal. The application is refused.