Kennedy v Regina [2007] SBHC 157; HCSI-CRC 449 of 2006 (4 December 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 449-06

DANNY KENNEDY

-v-.

REGINA

(Palmer CJ.)

Date Hearing: 27th July 2007
Date Judgement: 4th December 2007

E. Cade (Senior Defence Counsel – Public Solicitor’s Office) for the Appellant
R.B. Talasasa (Director of Public Prosecutions) for the Respondent.

Palmer CJ.:

1. This is an appeal from the order of the Magistrates Court convicting Danny Kennedy ("the Appellant") for the offence of casting away a vessel contrary to section 323 of the Penal Code Act on 14th August 2006. He was sentenced to 2 years imprisonment on 28th September 2006. He applied for bail pending appeal and was released on bail on 20th October 2006.
   
2. The offence is described as a felony with a maximum sentence of 14 years imprisonment.
   
3. Four grounds of appeal are relied on as follows:
   
   • (i) There are strong reasons to believe that the learned Principal Magistrate’s record of the oral evidence given before the court is incomplete.
     
   • (ii) The Petitioner/Appellant submits that it does not contain evidence which the Appellant maintains supports his submission that the decision to convict was unsafe and contrary to the evidence.
     
   • (iii) The Petitioner/Appellant has therefore been deprived of his opportunity of making his appeal because he has been deprived of an accurate record on which to base his appeal.
     
   • (iv) In such a case the Appeal should be allowed and the conviction quashed.
     
4. Under ground 1, the appellant submits that there are strong reasons to believe that the learned Principal Magistrate’s record of the oral evidence given before the court is incomplete. I have had opportunity to consider the type-written records of the presiding Magistrate and his judgement.
   
5. Section 69 of the Magistrates Court Act provides that:
   

"Subject to the provisions of any other Act, in every case heard before a Magistrate's Court, and at every stage thereof, the Magistrate hearing such case shall, save as hereinafter provided, take down in writing the oral evidence given before the Court or so much thereof as he deems material."

There is no requirement for a verbatim record of the evidence to be taken though it is desirable that all magistrates should ensure as much as possible to keep accurate records of what transpires in their court[1]. This is to avoid allegations of inaccuracy and thereby affecting validity of the decision of the presiding magistrate. In this case it has been alleged that because he did not keep accurate records, he failed to properly take into account those matters which were not recorded, therefore his decision is unsatisfactory and unsafe.

Where an allegation is made that something was said which does not appear on the record, it should be mentioned expressly in the notice of appeal[2].

In his submissions, Mr. Cade relied on the Amended Notice of Appeal filed with the High Court on 25th October 2006, submissions on behalf of the Appellant (undated) and affidavit of Shane Drumgold dated 13 June 2006 as containing details of the matters not recorded.

6. In the Amended Notice of Appeal filed 25th October 2006, at paragraph 1(a), the appellant submits that the court failed to give adequate consideration to discrepancies in the prosecution evidence which were not adequately recorded and then goes on to identify these in the affidavit of Shane Drumgold and submissions. These related to the evidence of four witnesses that had been called, Alan Rodo, Shamus Kennedy, Enete Paul and Osborne Pitinapi.
   
   • (i) The discrepancies raised related to identification of the place at which the boat was (i) tied, (ii) the manner it was untied, (iii) that it would have been impossible for Alan Rodo to have seen what the defendant did if the position of the rope was 4½ inches below the deck, (iv) that Enete Paul when shown a photo of the boat which floated away that night denied that it was the boat she saw, and (v) Osborne Pitanapi stated in cross-examination that he had not in fact seen the appellant untie the boat, rather assumed he had after the boat had floated away.
     
   • (ii) In the records of the presiding Magistrate however, he records that Alan Rodo says he saw the owner of the boat, Hans Mergozzi ("Hans") arriving in his boat and tying it at the side of the wharf. Later on he saw the appellant going towards the boat, sitting down on his toes and untying the rope of that boat.
     
   • (iii) The records of the Magistrate also recorded that Shamus Kennedy ("Shamus") also saw Hans arriving and tying the boat onto the wharf. He also confirmed seeing the appellant go over to the boat, bent down and untie the rope.
     
   • (iv) In the submissions of the defence before the learned Magistrate it was pointed out that Shamus saw Hans tie the boat to a cleat. Also it was pointed out that he says he saw the accused bend down and with his two hands untie the rope then stand and throw the rope back into the boat. It was suggested that this was dramatically different to the other versions.
     
   • (v) The records of the Magistrate also records that Enete Paul saw the appellant untie the rope of the canoe. In the submissions of the defence before the learned Magistrate it was put that because she had said that the boat was tied some 4½ inches below the surface of the wharf that it would have been physically impossible for her to have seen what she claims to have seen.
     
   • (vi) As to Osborne Pitanapi’s evidence, the learned Magistrate also confirmed seeing the appellant untie the rope of the canoe.
     
   • (vii) In his judgment, the learned Magistrate made specific findings to the credibility of the prosecution witnesses. He carefully considered what they said and then concluded as follows:
     

"PW2, PW3, PW4 and PW5 are each eye witness and gave their evidence confirming what they saw. There is no suspicion in my mind that they were adding to what they actually saw. They were there for the reason that their hand (sic) floated out earlier from the jetty and were there to ensure the safety of their boat. I saw each of them in the witness-box giving his evidence and they gave straight answers to the questions asked of them by Counsel and the Court. They gave their evidence to the point of being almost impartial."

(viii) The presiding Magistrate not only accepted Osborne Pitanapi’s evidence as credible but as an independent witness. He accepted his evidence that he saw the defendant knelt down and untie the rope and that he confirmed that the boat floated away as a result of what the appellant had done.

(ix) The judgment of the presiding Magistrate as to his findings was very clear. He held that their evidence was clear and straightforward. He accepted that the four witnesses were all eye witnesses to the incident that night. There was no doubt in his mind about their identification of the defendant as the person who untied the rope to the boat. Whilst there may be discrepancies in their description of the details as to how and where the boat was tied or how it was untied and whether they had clear view of his hands when he untied the boat, there was no doubt in the mind of the learned Magistrate that there was no one else who could be responsible for the incident. There was nothing to suggest that the person they saw was anyone else other than the defendant or that they were mistaken as to his identity. The learned Magistrate accepted their evidence as to the lighting that night, that it was sufficient enough for them to identify the person who untied the boat. They were not too far away and they remained unshaken as to their identification of the defendant for they all recognised him; he was not a stranger to them. He was well known to them from previous occasions. This court will not interfere with such clear findings of a magistrate on issues of identification and credibility provided there is material to support such finding.

(x) So whilst there may have been omissions in the records of the presiding Magistrate as raised in this appeal, I am not satisfied there is reason or cause for concern that there is something wrong in connection with the hearing of the case or that the omission is material and goes to the heart of the trial or there is a real likelihood that the learned Magistrate had made a wrong decision – see comments of Justice Channell in Elliott (1909) 2 Cr App R 171 at 172:

"The absence or insufficiency of a shorthand note is not of itself a ground upon which a prisoner can appeal, nor the existence of a proper note a precondition 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 proper shorthand note may be material."

I am satisfied there was ample material before the learned presiding Magistrate to make such finding he did in this case. He heard the evidence, saw the witnesses and whilst there may have been some omissions in his records, I am not satisfied he failed to give adequate consideration to the discrepancies raised in this appeal. I am satisfied he carefully considered the evidence of all the witnesses, including defence witnesses, observed their demeanour before reaching his verdict. I find nothing in his judgement which suggests that there was something wrong in connection with the hearing of the case or that the omissions were material and goes to the heart of the trial or there is a real likelihood that the learned Magistrate had made a wrong decision. To the contrary I am satisfied he was entitled to make such finding as he did on the evidence before him.

7. Ground 1 of the Appeal must be dismissed.
   
8. For the same reasons given above ground 2 of the Appeal must also be dismissed. I am also not satisfied that the appellant has been deprived of his opportunity of making his appeal and for the same reasons ground 3 must be dismissed. His appeal has been fully raised and articulated before this court and considered. I am simply not satisfied the absence of an accurate record has prejudiced his case for appeal.
   
9. Ground 4 is not so much a ground of appeal as a request for the appeal to be allowed and the conviction quashed. It should be dismissed in any event.
   
10. The appeal against conviction is dismissed.
    
11. I will hear submissions (if any) regarding sentence.
    

The Court.

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^[1] Regina v. Yam [1991] SBHC 14; HC-CRC 020 of 1990 (13 February 1991).
^[2] Gouwadi v. Reginam [1990] SBHC 92; [1990] SILR 118 (20 June 1990).