Solodia v Regina [2007] SBHC 153; HCSI-CRC 147 of 2006 (26 November 2007)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 147 of 2006

PHILIP SOLODIA

–V-

REGINA

Date of Hearing: 15th November 2007
Date of Judgment: 26th November 2007

Mr Charles Ashley for the Appellant
Mr McConaghy for the Respondent

JUDGMENT

1 FAUKONA J: This is an Appeal from the Magistrates Court pursuant to Section 45 of the Magistrates Court Act, Cap.20.

2 The Appellant was charged for two offences of:

(1) Unlawful commercial gamming, contrary to Section 9 of the Gamming and Lotteries Act. Cap. 139.

(2) Simple larceny, contrary to Section 261(1) of the Penal Code.

3 The first offence was said to have occurred between October 2004 and February 2005, and the second offence was alleged to have occurred between January 2001 and December 2003.

4 On 31st March 2006, the Appellant was found guilty and convictions were entered by the Principal Magistrates Court, Central. On the same date the learned Magistrate imposed a sentence of 2½ years for count 1 and a fine of $1500.00 for Count 2. The Appellant apparently failed to pay the fine and was goaled for an additional three months.

5 On the 13th April 2006, a notice of appeal against conviction and sentence was filed with the High Court Registry pending the provision of the record of transcript of the trial by the Central Magistrates Court.

6 On 12th March 2007, the appeal was set for hearing. Instead of hearing of the appeal, and because the transcripts were not received, a bail application was made. On 15th March 2007, the Appellant was bailed after serving eleven and a half months in prison. From 15th March 2005, the case was adjourned to 16th April 2007 for appeal to be heard.

7 The case was then adjourned to 24th April 2007, but the counsel for the appellant did not appear. The case was then adjourned to 2 May 2007. On 2nd May 2007, the Court explained why the transcript were not ready. The fact that it was located but no one was able to read the handwriting of the presiding Magistrate. Attempt were made to locate him in Australia but to no avail.

8 The case was then adjourned to 1st August 2007 but the transcripts were still not prepared and not typed. The case was then adjourned to 12th September 2007, still transcripts not prepared and unreadable. The case was then adjourned to 15th October but nothing changed to the position of the transcripts. The case further adjourned to 17th October 2007 with the same position. On 17th October Counsel for the Appellant informed the Court that since transcripts were not prepared, typed and were unreadable, on the next adjournment date he would make submissions based on unavailability of Court record which prejudice the right of the accused for his case to be heard within reasonable time, but still maintain same grounds as in original notice.

9 From 17th October 2007 the case was adjourned to 17th of November when the Court finally heard submissions from Counsels in regards to the appeal.

The Appellant’s Case

10 Whilst maintaining the original grounds of appeal which apparently would not proceed, because of unlegibility of the Court transcripts, the Counsel for the Appellant, stated that for the Court to efficiently hear and assess the evidence the transcript of the Court below must be available before the Court. The appeal was against conviction and sentence. It is important reason for decision by the lower court must be available and matching up to the actual evidence adduce before it.

The Counsel refer to Mr Goldsbrough’s reason expounded in the case of Faramoa v R[1]. In that case the transcripts of the Magistrates Court were not found altogether. And the Court therefore acquit the accused, on the basis that the Court would not justifiably decide on the appeal against conviction and sentence in the absence of Court below transcripts. He suggested that to remit the case back to the Magistrates Court will not serve any purpose.

The State Case

11 The Counsel for the State argued that the Faramoa case is different from this one. In that case the entire court transcripts were not located and unavailable. In this case, judgment and sentence of the Court below is on file. The reason for decision was clearly laid out by the presiding Magistrate, let alone the sentences imposed. He therefore urged the Court to remit the case back to the Magistrate’s Court for rehearing. The term already been served by the Appellant in prison will serve as a significant consideration by the Magistrate’s Court.

The Issue

12 The issue before this Court is whether the Appellant have shown, in the appeal issues relating to either facts or law that will require a determination from the Court with the assistance of the Court transcript. That in the absence of such, or non-availability of, or non readable transcript the Court will improperly and not effectively consider the appeal.

13 The starting point is the case of Elliot[2] where Channel J stated on page 273 paragraph 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 reasons 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 a material."

14 In the Spillane Case[3], the Court stated on page 731, paragraph 2,

"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."

See also Anthony Choko, Patrick Mugiri, Sylvester Gina, Faletau Beti and Gumi Gadepeta –V- Regina[4] .

15 From those cases the Appellant must show that there are reasons to suspect that there is something wrong in connection with the hearing of the case which will assist formulate an argument that the conviction was unsafe or unsatisfactory. In this case, a transcript unreadable, a material requirement for the Court to properly determine the issue of facts upon which a conviction and sentence was based. In its absence has placed the Court in a critical position.

16 I find as a practice, an appeal against conviction raises a contentious issue of fact and with the transcript unreadable: a situation which cannot be cured, and will not be, the Court is unable to effectively hear and determine the issues.

17 Where an appeal is against conviction and sentence, the entire evidence tendered before the learned Magistrate is in issue. This goes a long way to include sentence. Sentence does not only comprises of the term the prisoner serves but whether the learned Magistrates had considered all submissions in regards to sentence. This Court is in a critical position to consider the appeal because of lack of legibility of the court transcripts.

18 In the Faramoa case, the Court transcript were not located at all. In this case the transcripts are there on file, but no one in this country is able to read the writings of the learned Magistrate. By the time the transcripts were located, the learned Magistrate had left to his home country in Australia, and could not be located to assist the registry, despite attempts to locate him.

19 The factual situation of this case may be slightly different from Faramoa’s case, but the fact is that on equal basis, non of the Magistrates’ records of transcripts will ever assist this Court determine the issues on the appeal. And I find there is no difference between them at all.

20 As the circumstances warrant in this case, the only justifiable thing to recourse to, is to allow the appeal. I find it is not the fault of the prosecution nor the appellant, but failure by the Court administration to act swiftly when the appeal was filed; and inform the presiding Magistrate to get his records in order before he left the country.

21 The option to refer the case back to the Magistrate’s Court serves no purpose. Justice, in my view cannot be pursued at the expense of the State and the prisoner. If I were to do likewise, the State and the Appellant will surely incur further expenses bringing in witnesses and accommodating them in Honiara for another retrial case.

22 The Appellant had served eleven months and a half in prison, before he was bailed. It is an apparent fact that the appeal will never be properly heard, even at a future date. In my humble view, eleven and a half months is sufficient imprisonment term. The Appellant has suffered some consequences already. He had lost his job as a Senior Officer of Police Force and had lost regular income which he normally receives. It would be difficult for him to find another job. Had the records available in time, his appeal would have been heard within reasonable time. The delay in finding the record and having it properly prepared had caused enormous expectation fade away. Then at last when it was found, no one could be able to read the records. That causes further frustration and burden hanging over his shoulders.

23 I consider the best option is to acquit the accused of the two charges. That should sound as a benefit going to the Appellant’s way. The Court lack swift action in getting the records prepared on time, in particular when the learned Magistrates was still in the Country. I also find the Appellant has shown, should transcripts are available, the evidence will be the main focus of argument.

I consider the Appellant should not doubly be benefited, one is fair, hence no order as to costs.

Accused therefore acquitted on both counts with no costs, and I so do order accordingly.

THE COURT

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^[1] [2005] SBHC 160
^[2] [1909] 2 CR Appeal R 171
^[3] [1872’06 Cr. App. R9
^[4] [2006]HC88-CRC No.37 of 2006