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R v Agovaka [2020] SBHC 96; HCSI-CRC 35 of 2020 (7 September 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 35 of 2020

REGINA

V

PETER CHANEL AGOVAKA

Date of Sentence: 35 of 2020

Counsels
Francie Waleilia for the Appellant
Suifa’asia for the Crown/Respondent

RULING

Maina PJ:
Introduction

The Applicant PETER SHANEL AGOVAKA applies for the dismissal of a Criminal Appeal filed by Director of Public Prosecution (DPP) on 30^th May 2019 on the grounds that:

1. The materials/evidences contained in the Court Book are insufficient or not capable for the court to decide or use for the determination of the appeal.
2. The appeal was filed out of time.

The Applicant also claim costs for this case.

Brief Background

Peter Shanel AGOVAKA was charged for assault causing actual bodily harm under 245 of the Penal Code for unlawfully assaulted Sam Kasile thereby occasioning the said person actual bodily harm. He pleaded not guilty on the charge and a trial was conducted for the accused.

On 14^th May 2019 the presiding Magistrate found no evidences against Mr AGOVAKA on the charge of assault causing actual bodily and acquitted him on the charge. The magistrate found evidences against the accused on common assault and accordingly convicted him on the lesser offence of common assault contrary to section 244 of the Penal Code.

On 30^th May 2019, the DPP filed an appeal against the Magistrate Court’s decision or acquittal of Mr AGOVAKA on one count of assault causing actual bodily harm and the conviction on common assault offending.

The DPP’s appeal against the order of the acquittal is as follows:

1. That the learned trail magistrate erred in law and facts in acquitting the Respondent/Accused on the charge of assault causing actual bodily harm despite the uncontroverted medical evidence of the ENT specialist Obiga Newton;
2. That the learned trial magistrate erred in law and facts in acquitting the Respondent/Accused on the charge of assault causing actual bodily harm against the weight of prosecution evidence.

Earlier or at three mention occasions of the case in the High Court, Counsel for the Respondent raised issues on the readiness of the Appeal Book.

On the 4^th February 2020, an Appeal Book was certified by the Register of the High Court and a copy was served on Respondent through his lawyer in the High Court pigeon hole.

On the 27^th March 2020 after Appeal Book was certified, Crown Counsel Zore appeared and informed the court that the case had not yet been allocated to any prosecutor and the case was adjourned for mention.

On 8^th June 2020, Crown Counsel Ratu appeared and told the court the case had been allocated to Crown Counsel Suifa’asia and she asked to adjourn this matter to another date to enable her to sort out some mistakes in the Court Book. Again it was adjourned to 7^th August 2020.

On 4^th August 2020 the Respondent filed an application for the dismissal of Criminal Appeal by the DPP on the ground of insufficient materials in the transcript evidences or appeal book from the magistrate court and appeal was filed out of time.

This case came back to court on 7^th August 2020 and Crown Counsel Lelapitu appeared with the instruction from Counsel Suifa’asia. She informed the court that a letter from the Respondent was received and it had been forwarded to the DPP for consideration but she had not received any response.

Appellant’s counsel in response told the court that his application to struck out appeal should be listed for hearing as there were two opportunities given to Crown to withdraw the appeal upon their representing them but they did not respond to them. And it was upon that the appellant filed an application to struck out the appeal and he will also seek an order for costs. And a hearing of the application to struck out the appeal was fixed for 13^th August 2010.

Issues

1. Whether the appeal was filed by the DPP out of time?
2. Whether the materials/evidences in the Appeal Book are insufficient for consideration by the judge in the appeal?

Issue 1.

On the filling of the appeal out of time, the DPP’s discretionary right to appeal in criminal cases is absolute as provided in the provision in section 283 of the Criminal Procedure Code (CPC) by, or with the sanction in writing of which or as he had done for this appeal, unlike a convicted person’s right which is restricted by the provision or section 285 of the CPC.

Therefore, this ground is dismissed

Issue 2

Counsel for the Applicant had submitted that the court has power at this preliminary stage to dismiss this case under section 288 of the CPC which or if a judge considers unsuitable for hearing either because of its competence or for any reason that the court thinks just.

Counsel submitted the notion is that only competent appeals are supposed to go up to the court for a hearing. Such is so to remove unnecessary appeals that might have been filed for emotional reasons or other trivial reasons.

For the purpose of section 288, counsel submitted that this court review the prospect of success and then make a decision as to whether it is desirable that the appeal should be heard at all.

Counsel referred to the two grounds of the appeal filed by the DPP, the first relate to the evidence adduced at the trial by Nurse Obiga Newton who was a witness and generally preyed the weight of the prosecution evidences in any event proof beyond reasonable doubt the Respondent’s guilty on the charge of assault causing actual bodily harm. Applicant/Respondent found not guilty of assault causing actual bodily harm but convicted on common assault because of the inadequacy of the medical reports.

Counsel submitted that at this stage of evidences in the appeal book or just for this court to conduct a proper re-appraisal of the evidences without the two medical reports and the proper transcript of the evidences at the magistrate court trial would not change the decision of the court.

Counsel for the applicant further submitted that transcript of the trial evidence is inaccurate and misleading with the magistrate used of alphabetical letters “U” and “V” in handwritten evidence. And for the purpose of the appeal this appellant court is bound to re-appraise the magistrate evidence. Reference was made to the second page 27 page 28 and page 47.

Counsel submitted that in the circumstances of the appeal transcript of evidence of the magistrate court it is inadequate and or too reliable to raise reasonable doubt about the accuracy of the conviction in the court below.

With these concern or matters, a representation was made to the DDP but there was no response and so this application was filed to the court.

Crown Response to the Application

The Crown responded to the application by the appellant and submitted that it is quite right that that appeal book is in-complete or inadequate of the record of the evidence adduced at the trial and the Crown will also rely on the appeal books.

Crown Counsel continues and submitted that the entire evidence of the prosecution’s case in the appeal book does not in its state warrant a hearing of the appeal and further stated that the transcripts of the court below are inaccurate and misleading.

The Court

A judge can under section 288 of the CPC preliminary examine the appeal cases coming before him if they are competent appeals to go up to the court for a hearing.

In brief, when the High Court receives an appeal and the record of proceedings, a judge shall pursue and where an appeal is brought on the grounds that the decision is unreasonable, it can be summarily dismissed by an order of the judge or that he has perused and or as with this case now after hearing the ground of complaint by way of application to struck out the appeal.

With this application of the Respondent it is sought that the appeal by the DPP be struck out because of the insufficient materials in the appeal book to assist the judge to determine this appeal.

I also noted the submission by the counsel for the Respondent when he stated that to enable the judge to review the prospect of success in the appeal and or whether it is desirable the appeal should be heard at all. Frankly, with that these must be drawn from the case materials such as appeal grounds, judgment or the evidences to be drawn in record of proceeding from appeal book.

For the appeal book it is insufficient materials as the appeal Ground 1 relate to two medical evidences or reports of the Nurse Obiga Newton and referred to as Exhibits 2 and 3 but they are not contained in the appeal book. And so too the likely difficulty with the alphabetical letters “U” and “V” in handwritten evidence.

The issue of insufficient and inaccuracy of the appeal book or materials is acknowledged by the Crown counsel when she stated that the entire evidence of the prosecution’s case in the appeal book does not in its state warrant a hearing of the appeal.

I am satisfied that the appeal books or materials filed to this court as lower court materials are not adequately sufficient for the consideration or determine the appeal filed by the DPP.

Therefore, the appeal is struck out.

Orders of the Court

1. The appeal filed by DPP on 30^th May 2019 is struck out; and
2. No cost is awarded.

THE COURT
Justice Leonard R Maina
Puisne Judge