Choko v Regina [2007] SBHC 102; HCSI-CRC 37 of 2006 (31 July 2007)

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ANTHONY CHOKO, PATRICK MUGIRI, SYLVESTER GINA, FALETAU BETI AND GUMI GADEPETA

FAUKONA J: An Appeal from the Magistrates Court pursuant to Section 45 of the Magistrates Court Act, Cap.20.

2	All the Appellants were charged for a number of criminal offences arising out of an incident occurred on 29 October 2002. They are:
	Count 1:	Grievous Harm contrary to Section 66 of the Penal Code.
	Count 2:	Criminal Trespass contrary to Section 189(2) of the Penal Code.
	Count 3:	Malicious Damage contrary to Section 319 of the Penal Code.
	Count 4:	Unlawful Assembly contrary to Section 74 of the Penal Code.

3. On 27 January 2006, the Appellants were convicted by learned Magistrate sitting at Munda; each of the Appellants were sentenced to between 3½ and 4 years imprisonment. It is not clear, even to date, the term each should serve.

4. On 11 February 2006, a notice of appeal against conviction and sentence was filed with the High Court pending the provision by the Gizo Magistrates Court of the records of the trial.

In March 2007 Counsel for the Appellants enquired and the High Court Registry advised that there was no record of appeal having been filed. As a result, previous notice of appeal filed and stamped on 11 February 2006 was refiled again in the High Court Registry.

5. Whilst further enquiries were made with Gizo Magistrate’s Court and High Court Registry, this appeal was listed for hearing on 25 May 2006. Both Counsels appeared and the matter was adjourned by consent because the Court record from Gizo was not available.

6. On 29 May 2007, the Principal Magistrate, Gizo, sent the file to the High Court Registry with a letter advising that there was no record of any trial ever having taken place.

7. An Amended Notice of Appeal was filed with the High Court on 4 July 2006 amending the original Notice of Appeal and seeking leave to appeal the convictions and sentences on the grounds that the court record is not available.

Counsel for the Appellants advance six grounds of appeal and they are summed up under six headings. They are:

(2). The learned Magistrate failed to give adequate consideration to weaknesses in the prosecution case.

(3). The learned Magistrate failed to give reason for rejecting the defence evidence.

(4). The learned Magistrate is erroneous in exercising his discretion in accepting medical evidence from the bar table and refusing the defence to call the doctor and cross examine on it.

(5). The learned Magistrate made further errors of Law requiring Mr Mane to breach Solicitor client privilege and withdrew from Mr Gadepeta’s case.

(6). The learned Magistrate failed to give Mr Beti time to properly instruct Counsel.

9. Those grounds are elaborated fully in the written submissions made by the Counsel. In support of those grounds two affidavits deposed by two Counsels who represent the Appellant’s in lower court were attached.

10. Finally she submitted that in the absence of a court record, the Appellants are deprived of their rights to properly make their appeals despite having clear grounds.

In reply, Counsel for the Respondent submitted, by referring to the affidavits deposed by Ms Garo and Mr Mane for the Appellant’s case, and Mr Wheatley (prosecutor in the lower court) for the Respondent. Their recollection as to what transpired in the lower court is contradictory. Perhaps due to natural human failure of remembering what happen through passage of time; and suggested there should be a better way to avoid court confronting two extreme conflicts.

He further submitted that Counsels are court officers and are duty bound to relate to court their version truthfully, honestly and with sincerity. In the absence of court record, the best recourse the court to resort to is sincerity.

12. Counsel then advanced that faced with the issue, the Court has to set a stage of local jurisprudence in this matter. That in the face of adversities, how do the Court strike a balance so that the scale do not tilt unfairly to one party.

13. This case involves violence where a man living with his wife in the home was attacked by young energetic strong man. Where do we strike the balance of injustice. Which scale are we using; the scale of justice known to those outside of this country, for the Appellants, or the victim, or scale of justice established in this country for the good of the people who come to court for guidance and wisdom.

14. Faced with a very awkward situation law is a guiding rod. Counsel referred to the relevant laws highlighted by Counsel for the Appellants in her submission. In the absence of record, the Court has the law and the affidavits outlining various recollections.

15. In a circumstance where record is not available law has always been in favour of the Appellant. The Counsel questioned should there be any way, to meet the end of justice to defy these laws.

16. Finally Counsel concluded that this Court set a stage how the law in this Country will apply when faced with such an issue.

17. The issue before this Court is not the determination the truthfulness of the affidavits filed by both parties, containing recollection of what actually transpired in the lower court. These affidavits are presumptions which

require substantial determination, and in doing so Court record must be available.

18. The issue here is whether the Appellants have shown in their appeal issues relating to either facts or law that will require a determination from the Court with the assistance of the Court record. That in the absence, or, non availability of such record the Court will improperly and not effectively consider the appeal.

19. The starting point is in the case of Elliot, which Channel J^[1] stated in page 172 para 2.

"The absence or insufficiency of a shorthand note is not of itself a ground upon which a prisoner can succeed upon appeal, nor the existence of a proper note condition precedent to a good trial. Where, however, there is reason to suspect that there is something wrong in connection with the hearing of a case, the absence or insufficiency of a paper shorthand note may be material."

20. These words were adapted in the case of Le Caer^[2] on page 730 – 731 para 5, it states:

"The Court would adopt those words as being entirely appropriate to the present facts and to the present case; in other words, the simple fact that there is no shorthand is not of itself a ground for saying that the conviction is unsafe or unsatisfactory. In order that the appellant may claim that conclusion, he must be able to show something to suggest that there was an irregularity at the trial or a misdirection in the summing-up. Unless there is something to suggest that an error of that kind took place, the absence of a shorthand note simplicited cannot cause the Court to say that the verdict of the jury was unsafe or unsatisfactory."

"In that case the Court was influenced by the strong recollection of Counsel in favour of the appellant, and recognizing that that provide something upon which a foundation for an argument that the verdict was unsafe or unsatisfactory."

22. What transpires from those cases is that the Appellants must show that there are reasons to suspect that there is something wrong in connection with the hearing of the case which will form the formulation for argument that the conviction was unsafe or unsatisfactory. In such circumstances, and in the absence of court record which is a material requirement for the Court to effectively determine those contentious issue, it placed the Court in a very critical position.

23. I find in this case there are contentious issues. This has been reflected in the submissions and the affidavits; however, because of lack of court record this court is unable to effectively hear and determine these issues.

24. There are three possible options left for this Court. One is to quash the conviction. Secondly, to refer the case back for retrial in the Magistrate’s Court and thirdly, to affirm the conviction.

25. I have been asked to apply the law in the absence of the record, and to do justice in the circumstances of this case. This has been the legal obligation of any judicial officer. In applying the law, consideration must be had in relation to the fact that the Appellants had already spent eighteen months in prison, in the absence of the Court record they were deprived of the opportunity of making their appeals on the appeal grounds contain in the notice, that the decision to convict was unsafe and contrary to evidence.

At the same time, I consider that this case involves violence and the community view for personal and general deterrence is relevant consideration.

26. On the third option, it would be most impracticable to affirm the conviction in the lower court. Because confirmation of a conviction can only be done after hearing of the submissions related to the contentious issues. In this case lack of court record those issues cannot be argued in court.

27. On the second option, Counsels have agreed that to defer the case back for retrial in the Magistrate’s Court will serve no purpose. See the case of Alfred Faramoa v R^[4].

In the case of Spillane (Supra) the Court quashed the conviction having applied the law in the situation.

28. This Court now left with the option that is to quash the conviction. No other options available to resort to; and in my view, in doing so, law has been fully applied.

The convictions entered by the Magistrate’s Court on 27 January 2006 is therefore quashed.

High Court of Solomon Islands

Choko v Regina [2007] SBHC 102; HCSI-CRC 37 of 2006 (31 July 2007)