Ferris v Reginam [1989] SBHC 13; [1988-1989] SILR 128 (30 January 1989)

[1988-1989] SILR 128

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.1 of 1989

KENNETH CHARLES FERRIS

v

REGINAM

High Court of Solomon Islands
(Ward C.J.)
Criminal Appeal Case No.1 of 1989

Hearing: 25 January 1989
Judgment: 30 January 1989

Appeal against conviction - whether appellate court can review decisions based on findings of questions of fact or the credibility of witnesses made by a trial judge - section 157(1) of the Criminal Procedure Code, - requirement of a written judgment giving reasons for decision in the Magistrates’ Court

Facts:

The Appellant, upon a not guilty plea, was found guilty after a trial of the offence of driving whilst the influence of liquor. He appealed against that conviction on three grounds-

1. The learned Magistrate failed to take account of the photographic evidence indicating a second point of impact on the Appellant’s vehicle.

2. The learned Magistrate failed to take account the evidence of the Second Defence Witness.

3. The learned Magistrate failed to direct himself on and give proper regard to the criminal onus and standard of proof.

Held:

(1) Where an appeal deals with the Magistrate’s assessment of the evidence adduced at the trial the position is that an appellate court can review decisions based on findings of questions of fact or the credibility of witnesses made by a trial judge, but it should only reverse his decision if it is convinced that the trial judge was wrong. Gerea and Others v. DPP [1984] SILR 161 followed.

(2) When reviewing a case, the court will consider not only whether there is evidence capable of supporting the decision but also the manner in which the lower court evaluated the evidence. This can only be discovered from the record and the judgment.

(3) By section 157(1) of the Criminal Procedure Code, the judgment must contain the point or points for determination, the decision thereon and the reasons for the decision. An appeal court is not entitled, where the judgment gives no indication, to guess the reasons for the decision and so a failure to give them may result in the conviction being quashed.

(4) The judgment of the Magistrates Court was simply a bald statement of the conclusion with little or no reference to the evidence or the individual witnesses and hence it was difficult to see whether the Magistrate had considered the evidence properly.

Accordingly the appeal was allowed and the conviction quashed.

Cases referred to:

Gerea and Others v. DPP [1984] SILR 161

J. C. Corrin for the Appellant
F. Mwanesalua, DPP, for the Respondent

WARD CJ: The Appellant appeared before the Central Magistrates’ Court on 7 November 1988 and pleaded not guilty to an offence of driving whilst under the influence of liquor. He was convicted and he appeals against that conviction on three grounds-

“1. The learned Magistrate failed to take account of the photographic evidence herein indicating a second point of impact on the Appellant’s vehicle.

2. The learned Magistrate failed to take account of the evidence of the Second Defence Witness.

3. The learned Magistrate failed to direct himself on and give proper regard to the criminal onus and standard of proof.”

The charge arose from an accident on 10 September at about 10.00 p.m. The Appellant was driving a minibus and the front offside of his vehicle struck the offside of a vehicle driven by the first prosecution witness, following which the Appellant’s vehicle continued on, left the road on his right hand side and eventually ended with the front in the sea at a distance from the point of impact estimated to be 50 yards but demonstrated to be about 25 - 30 yards. The first prosecution witness had described the Appellant’s vehicle going from side to side and driving fast as it came towards him before the collision.

The Appellant’s case was that another vehicle had pulled out from his left and struck his vehicle on the front. In the process of trying to avoid it, he had swerved to the right and struck the vehicle of the first prosecution witness.

There was no evidence that, at the time of the incident or at the Police Station afterwards, he had ever mentioned the involvement of another vehicle. In support, at the lower court, he produced two photographs which showed his vehicle was damaged on both sides at the front - slightly on the near side and extensively on the offside and he also called his passenger who supported the account of the other car pulling out. Finally, a witness was called who described seeing the first prosecution witness at the Yacht Club earlier that evening drinking and then being unable to reverse his vehicle properly because of the drink taken. This was the witness referred to in ground two. The first prosecution witness denied having been at the Yacht Club or drinking at all that evening.

A police officer who was called to the scene stated that both the Appellant and the passenger told him it was the passenger who had been driving and not the Appellant. The Appellant agreed this was said by the passenger at the Police Station but claimed no responsibility. At the Magistrates’ Court it was never disputed that the Appellant was the driver.

In an extremely short judgment, the learned Magistrate dealt with the dispute about the accident in the following way:

“I accept the prosecution’s account of accident and reject defence version, in which various causes were advanced at various times. I find suspicious in the extreme that the accused claimed not to have been the driver and his passenger said he (the passenger) had been driving. I do not believe there ever was a third vehicle. I find the accused’s account quite incredible.”

The first ground of appeal complains that no reference was made to the two photographs or the Magistrate’s reasons for rejecting that evidence and the second to the failure to refer at all to the Second Defence Witness’ suggestion that the first prosecution witness had been drinking; a matter that would be expected to bear heavily on the court’s assessment of his accuracy and credibility. I deal with these grounds together as both refer to the Magistrate’s assessment of the evidence adduced at the trial.

The position of an appellate court in such cases has been explained in numerous authorities many of which were considered in the case of Gerea and Others v. DPP [1984] SILR 161 and is summarised accurately in the headnote to that report:

“Whilst an appellate court can review decisions based on findings of questions of fact or the credibility of witnesses made by a trial judge, it should only reverse his decision if it is convinced that the trial judge was wrong.”

This is good sense as well as good law. The judge who sees and hears the witnesses is in a far better position to assess them. However that does not absolve the appeal court from its duty to review the decision and reverse it if wrong. When reviewing it, the court will consider not only whether there is evidence capable of supporting the decision but also the manner in which the lower court evaluated it. This, in our procedure, can only be discovered from the record and the judgment.

In the present case, the record of the evidence and the arguments of counsel is clear and detailed but this is in stark contrast to the judgment. The passage I have already quoted is the total reference in the judgment to the evidence of the way the accident occurred and the basis on which the Magistrate assessed the witnesses. It forms approximately half of the total judgment. It is a vital factor because the manner of driving by the Appellant must have been one of the matters demonstrating his fitness to drive although, such are the inadequacies of the judgment, it is entirely a matter of conjecture.

This was a strongly disputed case. Except for the suggestion put to the first prosecution witness that the earlier swerving may have been the result of potholes in the road, the record does not support the Magistrate’s suggestion that the defence advanced various causes at various times.

The Magistrate may well have based his conclusions about the way the accident occurred on a sensible assessment of the evidence of which there was plenty. I would expect him to have taken into account such matters as the failure of the Appellant at the scene or the police station to mention the presence of another vehicle and the fact no other vehicle stopped, the lack of evidence to show the condition of the Appellant’s vehicle before the accident, the manner of driving as he approached and the speed and lack of control that must have been involved to cause the Appellant’s vehicle still to leave the road on the offside or, on the Appellant’s account, to be travelling on two wheels and the indication from this of the speed of the Appellant’s reaction. All these matters could have justified his decision but it is not for the appellate court to speculate how the decision was reached. By section 157(1) of the Criminal Procedure Code, the judgment must contain the point or points for determination, the decision thereon and the reasons for the decision. This Court is not entitled, where the judgment gives no indication, to guess the reasons for the decision and so a failure to give them may result in the conviction being quashed.

Counsel for the Appellant has correctly conceded that the Magistrate’s duty does not extend to setting out the basis of every decision on the evidence. I have stated in earlier cases that such an obligation would be unrealistic set against the practicalities of running a busy court but, in this particular case, the judgment is simply a bald statement of the conclusion with little or no reference to the evidence or the individual witnesses.

In “open and shut” cases, especially those in which it is clear to the Magistrate that the defendant is giving a totally unbelievable account as was the case here, it is tempting simply to state that fact and convict but such a temptation must be avoided. Should there be an appeal, questioning the Magistrate’s reasoning, the appellate court will be bound to allow it. It is apparent that the Magistrate took such a clear decision about the Appellant’s evidence but I am unable to say whether in doing so, he considered the evidence properly and so I must allow the appeal and quash the conviction.

On the Appellant’s own account, there is evidence of dangerous driving and I have considered whether I should substitute a conviction for such an offence. Despite concern that the result of this appeal may be to allow an example of very bad driving to go unpunished, I feel I cannot take that step.

The culpability of the Appellant on a charge of dangerous driving may also have depended to some extent on the way the first prosecution witness was driving. That in its turn would depend on the Magistrate’s assessment of his evidence and the evidence of the defence and it is on those matters I have already found there is insufficient material on which to base an evaluation.

Equally, it could be argued by the Appellant that, had he been facing a charge of dangerous driving, he would have raised new factors relevant to the charge which had not been relevant to the charge of driving whilst unfit.

In those circumstances I do not substitute a conviction for an alternative offence.