Levo v Regina [2010] SBHC 110; HCSI-CRC 250 of 2010 (21 December 2010)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

SITTING AT Honiara

CHARLES LEVO

-V-

REGINA

Hearing: 17 December 2010
Ruling: 21 December 2010

M. Pitakaka for the Appellant
R. Barry and for the Crown/Appellant

Palmer CJ.

1. This is an appeal against the decision of the Magistrates' Court which refused to grant extension of time to file an appeal against the decision of Principal Magistrate Garo dated 28 May 2010. The Appellant had been convicted of five counts of conversion and sent to prison for a total period of 2 years with one year suspended for 12 months.
   
2. Section 285(1) of the Criminal Procedure Code ("CPC") provides that any appeal against a decision of the Magistrates' Court is to be filed in the Magistrates' Court within fourteen days of date of decision. On 10 June 2010 an application for extension of time was filed. This was heard on 17 June 2010 by Principal Magistrate Gauli and refused. Mr. Levo now appeals to this court against that decision asking this court to exercise its powers to enlarge time to file an appeal.
   
3. The main ground relied on is that the learned Magistrate failed to take into account the circumstances of the appellant by instructing a new lawyer who was not present at trial. Mr. Pitakaka argues the learned Magistrate failed to take adequate account of this fact and thereby erred in refusing to grant leave.
   
4. In his supporting affidavit, Mr. Levo states he was only able to instruct Mr. Pitakaka in the second week of the 14 days prescribed period and so did not give enough time to his lawyer prepare for the appeal.
   
5. I note no appeal proper as yet has been filed though a draft of the intended grounds of appeal has been provided.
   
6. The principles of law which apply to this type of application have been clearly set out in R. v. Faulkner (no. 2) [1983] per Daly CJ. He cites the judgement of the Court in The Queen v. Brown (1963) S.A.S.R. 190 at pages 191 and 193 in which it was said that it is for the Court to determine in all the circumstances whether it is in the interests of justice that an applicant should be allowed to commence an appeal or not.
   
7. At page 193 of the same case, the Court further pointed out that an appeal should not be sanctioned unless reasonable cause for concern is shown that justice has miscarried or that the conviction was contrary to the truth and justice of the case.
   
8. These principles of law have been well articulated as well in other jurisdictions, including in R. v. Tait[1], where the Court of Appeal in Queensland summarised them as follows:
   

"...the Court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. That may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all such cases the Court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the Court will often find it appropriate to make some provisional assessment of the strength of the applicant's appeal, and take that into account in deciding whether it is fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay." (emphasis added)

In A-G v. Adair[2], these were re-cast as follows:

"Two separate requirements must ordinarily be established for the favourable exercise of the Court's discretion; first that there is a reasonable explanation for the delay and secondly that there would be reasonable prospects of success if the application were granted:" (emphasis added)

9. There is actually a two tier process in the exercise of the court's discretion in such circumstances where the prescribed time limit has expired. While the circumstances involving the change of counsel would be "good cause" for granting the exercise of the court's discretion in favour of the appellant for an extension of time, that is not to say that the court cannot go on where feasible to do so, to make some provisional assessment of the strength of the applicant's appeal and to take that into account in deciding whether it is a fit and proper case for granting an extension.
   
10. Not every appeal will be viable. Section 288 of the Criminal Procedure Code for instance recognises this possibility and so gives power for summary dismissal on grounds of insufficiency of an appeal, by a Judge.
    
11. It was only proper and a valid exercise of the learned Magistrate's discretion, when he went on to consider the sufficiency of the grounds of appeal, to determine in the circumstances of an appeal and in the interests of justice, whether an extension of time should be granted.
12. I find nothing wrong, improper or inadequate in anyway, his assessment of the circumstances of the appellant's situation and the draft appeal grounds. I am satisfied he took careful account of the relevant factors to this application. He took into account the fact of change of counsel, considered the circumstances surrounding that carefully before proceeding on to consider whether there were prospects of success in the draft appeal grounds relied on. Having formed the opinion that there was insufficient grounds relied on he refused extension of time.
    
13. I find no reason to differ. Having perused the judgement and the draft appeal grounds, I can find nothing wrong in law, principle or fact regarding the exercise of the discretion by the learned presiding Magistrate on the question of whether there are reasonable prospects of success or that the prospective appeal is viable. I am satisfied the learned Magistrate exercised his discretion correctly and that this appeal should be dismissed.
    

ORDERS OF THE COURT:

1. Appeal dismissed.
   

The Court.

---

^[1] [1998] QCA 304 (6 October 1998)
^[2] [1997] QCA 185 (27 June 1997)