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R v Sasapio [2018] SBCA 21; SICOA-CRAC 31 of 2017 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal against conviction and sentence brought by the Appellant William Sasapio and an appeal sought by the Crown against an order for acquittal in the same proceedings.
2. William Sasapio was tried for an offence of rape contrary to the then section 137 of the Penal Code Act [Cap 26] It is worthy of note that since 2016 through an amendment to the Penal Code brought about by the Penal Code (Amendment) (Sexual Offences) Act 2016 sections 136 to 150 have been repealed and replaced.
3. Following trial, in a verdict delivered orally on 8 September 2017, he was convicted of an offence of unlawful sexual intercourse with a girl under age. There were two such offences available at the time of this trial, dependent upon the age of the victim; under section 142 where the victim was under 13 years of age or 143 where the victim was between 13 and fifteen years of age. Given that no record was taken at delivery of the oral judgment it is not apparent form the record which of the two offences were found to be proved against the accused.
4. The accused was sentenced on 29 September 2017 to two year’s imprisonment. In sentencing remarks published on that date it is recorded that the offence was under section 142, an offence which carried life imprisonment as a maximum penalty. There is nothing in the published sentencing remarks about the age of the victim.
5. Following the sentencing process a written judgment on the trial was published, showing a conviction for the offence of rape.
6. Again, under provisions now replaced, there existed provision to deliver an alternative verdict when rape was charged and tried. The alternative verdicts were contained in section 166 of the Criminal Procedure Code [Cap 7]. A person charged with rape may be convicted of an offence under sections 141(1), 142, 143, 145 and 163 of the Penal Code (12 of 1963, Sched Cap 26) when a person is charged with rape and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 141(1), 142, 143, 145 and 163 of the Penal Code, he may be convicted of that offence although he was not charged with it.
7. It appears that the trial judge may have found as a fact that lack of consent had not been proved beyond reasonable doubt. Offences under sections 142 and 143 do not require lack of consent to be proved as an element of the offence. This may explain his decision to convict of unlawful sexual intercourse. A necessary element, though, is proof of age and there is no record of any finding of age within the published judgments.
8. Given the acquittal on the charge of rape, necessary to allow the conviction of the lesser offence, the Crown sought to appeal under section 21 (1) (a) of the Court of Appeal Act [Cap 6]. Leave to bring that appeal was required because it was not brought within time. Leave was granted to bring the appeal late, such leave conditional on filing and service of the notice of appeal within 14 days of being told of the grant of leave. The appeal then was still not filed within time, but two months later, and without seeking permission to file out of time. Even on the hearing of this appeal the Crown did not seek leave from the Court to file that appeal late but sought instead to provide reasons why it was filed out of time. In those circumstances it seems clear that the appeal has never been properly commenced.
9. Failing to file an appeal within time exposes the party to the additional burden of having to show reasonable prospects of success and additionally with the burden of complying with any conditions that may be imposed on any leave granted. In this instance the Crown was required to file and serve a notice of appeal within 14 days of being told that leave had been granted. This condition was imposed as the application for leave itself was expressed to have attached a draft notice of appeal but no such draft was in fact attached to the application.
10. As the Crown appeal against conviction was never properly filed after leave was granted we take the view that it is not necessary to consider the appeal. Leave which was granted lapsed when no notice was filed within time. It may have been possible to ask for permission to file late a second time but this was never done. The notice which was eventually filed out of time was not capable of being an effective notice nor was any step taken to ask for it to be regarded as such.
11. William Sasapio’s appeal against conviction was lodged within time and so no question of leave arose. He had an appeal as of right as to matters of law and could have sought leave to appeal on fact with leave. Although his appeal raised questions of law and did not require leave, in error his appeal was entitled application for leave to appeal. Given that it set out no reasons why leave might be necessary, it was deemed by the Registrar as the Notice of Appeal. Even if the notice was in error in seeking leave, it was not an error on the part of Mr. Sasapio but of his then counsel. Leave to appeal against sentence was sought and was granted.
12. The grounds of appeal against conviction as set out in the notice of appeal were themselves general. This was indicated in the notice itself as the written judgment had not then been made available to the parties. The appeal was filed without waiting for that written judgment, indicating that additional grounds may be added following receipt by the parties of that written judgment. We agree that such a course is both prudent and practical and commend it.
13. The appeal against conviction requires very little consideration by this court. Although in his oral decision the trial judge indicated a conviction for unlawful sexual intercourse, in his written judgment he convicted the accused of rape, even though in his sentencing remarks he referred to a conviction for unlawful sexual intercourse. The sentence of two years imprisonment is most likely to be indicative of a conviction for the lesser offence under section 143 rather than the more serious section 142, but that is mere conjecture. Whilst in submissions the parties to this appeal indicate that at the time of the offending the child was just over thirteen years of age, such a finding was not expressed in the judgment nor in the reasons for sentence and so it is difficult to conclude that any finding on age necessary to establish either offence was actually made. The only evidence on the point was the child saying that she was born in 2003, no date of birth. The offending was alleged to have taken place on 27 February 2016. For part of 2016 the victim would be less than thirteen and for another part she would be older than thirteen depending upon when her birthday fell.
14. In the course of his written trial judgment there is reference to corroboration being required in sexual offences and where the victim is a minor. From the judgment it is clear that the trial judge had doubts about a conviction through the lack of corroboration. Yet the rule requiring corroboration was abrogated by virtue of the Evidence Act 2009 and replaced with other provisions – see sections 7, 18 & 19 of Evidence Act 2009. This fact was quite properly drawn to the attention of the trial judge in submission.
15. The trial judge was entitled to explain the conflict between his oral and written decision on conviction and his sentencing remarks in a report to this Court. Equally we could exercise our power to require such a report given these circumstances. The trial judge chose not to file any report and we choose not to require one. We do not require any report as we doubt whether anything that the judge might have to say will alter the course of this appeal.
16. In summary, whilst a conviction under section 142 or 143 was available to the trial judge by virtue of the provisions of section 166 of Cap 7 on a rape trial, it was only available when the essential elements of either offence were proved. The trial judge made no finding on the age of the victim, she may have been under or over thirteen years of age. The trial judge appears to have found that sexual intercourse took place but expressed concerns that the evidence was not corroborated. In those circumstances it is difficult to see how he could find positively that the act of sexual intercourse took place when he could not positively find that the victim gave or withheld consent. Finally there is no record of what the judge actually convicted the offender of. In sentencing remarks there is reference to section 142 and a maximum penalty of life imprisonment. Submissions from counsel do not assist. The Crown referred to an offence under section 142, the defence an offence under section 143. Throughout the Crown had referred to the victim as being a girl of thirteen years of age.
17. To conclude that the conviction is unsafe and unsatisfactory would amount to an understatement.
18. In determining how to dispose of this appeal we were conscious of the option to send the matter back to be tried again. The first trial miscarried through no fault of the parties. We took into account the seriousness of the allegation, its age and the age of the victim. We also took into account the evidence that came from the witnesses called for the crown and concluded that the evidence as put before the trial judge was lacking as regards consent, however poorly it was considered by the trial judge. To allow the Crown to remedy those defects in the evidence presented at a second trial, we felt, would not then result in a fair trial of this matter from the point of view of the accused. We therefore concluded that we could not remit the matter for a second trial.
19. The appeal against conviction is allowed. The conviction is quashed, the subsequent sentence imposed is also quashed and we order that the accused William Sasapio be released from custody forthwith.

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Goldsbrough P
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Ward JA
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Lunabek JA