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Regina v Yam [1991] SBHC 14; HC-CRC 020 of 1990 (13 February 1991)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 20 of 1990

REGINA

-v-

YAM

High Court of Solomon Islands
(Mr. M.W. Lodge; Commissioner)

Hearing: 7 February 1991
Judgment: 13 February 1991

F. Mwanesalua, DPP, for the Appellant
A. Nori for the Respondent

LODGE, COMMISSIONER: This is an appeal by the Director of Public Prosecutions against a decision of the Magistrates' Court (Central). The respondent was charged with two counts of forgery contrary to s.329(2)(a) of the Penal Code, one count of perjury contrary to s.96, forgery of a document with intent to deceive contrary to s.330(3)(g) and uttering contrary to s.336(1). At the close of the prosecution case the learned trial magistrate found that there was insufficient evidence to require the accused to make a defence and acquitted the accused on all counts.

The petition of appeal contains 5 grounds. Ground 5 is identical to ground 4 and is presumably a typing error. Grounds 1 - 4 reads as follows:

"1. That the learned Chief Magistrate erred in law in acquitting the Respondent of all 5 counts at the close of the prosecution case.

2. That the offences against the Respondent were not heard before an impartial court as the learned Chief Magistrate was well known to him and therefore there was a miscarriage of justice.
   
3. That there was miscarriage of justice because the learned Chief Magistrate did not release the record and give reasons for upholding the no case to answer submission made on behalf of the Respondent within 14 days of such ruling.
   
4. The ruling and/or the verdict on the no case to answer submission was in all the circumstances unreasonable and unsafe."
   

I shall have more to say about grounds 2 and 3 in a moment. First I will deal with grounds 1 and 4. Section 285(1) of the Criminal Procedure Code requires that the petition -

"shall contain in a concise form the grounds upon which it is alleged that the Magistrates Court from the decision of which the appeal is lodged has erred."

I am aware that in the past considerable latitude has been allowed to counsel in the drafting of grounds of appeal. It is commonplace for counsel to submit vague grounds such as "the magistrate erred in law" without further particularising the alleged error of law or misdirection. In my view such grounds do not comply with section 285(2).

In England the situation in practice is covered by a Guide issued by the Registrar of Criminal Appeals and set out at (1983) 77 Cr. App. R. p. 138. The relevant provisions are also set out in Archbold 43rd Ed. 7 - 81. In particular I would draw counsels' attention to the following provisions.

"2.2 Grounds must be settled with sufficient particularity to enable the Registrar and subsequently the Court to identify clearly the matters relied upon. When the Registrar receives notice and grounds it is initially his only information about the case. A document containing a mere formula such as "the conviction is unsafe and unsatisfactory" or "the sentence is in all the circumstances too severe" will be ineffective as grounds and time will continue to run against the defendant. Reasons must be given why the court is invited to come to such a conclusion.

2.4 Counsel should not settle or sign grounds unless they are reasonable, have some real prospect of success and are such that he is prepared to argue before the Court.

...............................

4.4 Perfected grounds should consist of a fresh document containing references by page number and letter to all relevant passages in the transcript. Authorities on which counsel relies should be cited, where possible, in the Criminal Appeal Reports. A document mentioned in the grounds should be identified clearly, by exhibit number or otherwise, and if each member of the Court will require a copy an indication to that effect should be given. Similarly if counsel requires an original exhibit he should say so well in advance of any determination or hearing."

I accept that these provisions do not have the force of law in this jurisdiction but I do feel that counsel should look to the guidelines as persuasive authority and as illustrative of the proper practice to be adopted. It may be that it is necessary to enforce similar guidelines here.

Even disregarding the guidelines, I do not feel that ground 1 complies with section 285(2). What ground 1 means, in plain English, is that it is an error of law to acquit an accused at the close of the prosecution case. Such a proposition is of course absurd and it is quite clear that the learned Director of Public Prosecutions never intended to argue it. However, if counsel, particularly experienced counsel, is incapable of expressing himself clearly I do not see why this court should allow him to argue grounds which are not specifically set out in the petition of appeal.

In my view I would be perfectly entitled to take a robust view and dismiss grounds 1 and 4 on the basis that they raise no substantial ground of appeal.

As there are no specific guidelines in this court, and as the point was not taken by counsel for the respondent, I will on this occasion go beyond the petition of appeal and consider the arguments that have been put forward in court by the learned Director of Public Prosecutions. I will certainly, however, draw the attention of the Honourable Chief Justice to my comments.

Before dealing with the actual grounds raised I can dispose briefly of grounds 2 and 3. Ground 3 is of no assistance to the appellant at all. The fact that written reasons were not released until after the time limit for appeal had expired may well be "good cause" for enlarging the time under section 284, but is certainly not a good ground for alleging a miscarriage of justice.

In fact the record shows that the learned magistrate delivered a short verbal ruling on 26th June, followed by a written ruling which is undated but which the court file shows was delivered to the parties on or about the 19th July. Such a procedure, though not to be encouraged, does not fall outside the provisions of section 150 of the Criminal Procedure Code (see Sau v. R. [1982] SILR 65).

Mr Mwanesalua, had he felt seriously prejudiced by the lack of the written ruling, has had since 19th July to file perfected grounds of appeal. He has not attempted to do so.

At the hearing of the appeal it became apparent in fact that Mr Mwanesalua's real argument on ground 3 was not that he had been prejudiced by the lack of a written ruling, but that the magistrate's conduct in not releasing the record until after the time limit for appeal had expired, was indicative of bias on the part of the magistrate.

Mr Mwanesalua said -

"When I finally got the record I noticed that Kigo's evidence was not correctly noted. I got the feeling that the record may have been altered."

This is tantamount to an allegation that the magistrate acted dishonestly. Ground 2 is an allegation of bias on the part of the magistrate. Both are allegations of the utmost gravity which should not be made lightly without evidence to support them. Leaving aside the fact that no objection was made to the learned magistrate before the trial commenced Mr Mwanesalua has made no attempt to produce one iota of evidence to support his allegations. I am entirely satisfied that the allegations are totally unjustified and entirely without foundation.

I would go so far as to say that for counsel to make such allegations when he is completely unable to substantiate them is scandalous and a serious breach of professional etiquette.

Both grounds 2 and 3 are dismissed.

The record of the proceedings in the magistrates' court is extremely brief and both counsel concede that it is not an accurate record. There is of course no requirement that a magistrate shall make a verbatim record of the evidence, though it is highly desirable that the record should be as full as possible. No point has been taken on this and I feel that the notes of evidence are sufficient to comply with s.181 of the Criminal Procedure Code.

If I understand his arguments correctly, Mr Mwanesalua is not now contesting the finding of no case to answer on counts 1, 2 and 3. The basis of the learned magistrate's finding on counts 1 and 2 was that the documents concerned were not proved to have been valuable securities, and the accused had therefore been charged under the wrong section. This finding was quite clearly correct.

On count 3 the learned magistrate found that there was no evidence of any false statement. The allegation contained in the charge is that the accused knowingly and falsely swore that Michael Kigo's employment was terminated for misfiling and mislaying documents. There was certainly evidence capable of proving that this was substantially what the accused had said on oath. The only evidence to show that the statement was false was that of Kigo himself who is recorded as saying "Austin Yam told me I had misfiled information. I resigned after that." There is obviously a difference between resignation and dismissal and I feel that the learned magistrate erred in finding that there was no prima facie evidence that a false statement had been made.

However, on a charge of perjury the prosecution are also required to prove that the accused made the false statement intentionally, knowing it to be false or not believing it to be true. No evidence was adduced upon which any reasonable court could properly find that these elements of the offence had been proved and it follows that the learned magistrate was right to dismiss the charge, albeit he did so for the wrong reasons.

In relation to counts 4 and 5 the situation is rather more complicated. The learned magistrate's ruling on these counts is very brief and is very difficult to understand. He seems to have dismissed the charges on the basis that the charges were not sufficiently particularised. In relation to count 4 he said;

"The charge does not particularise who they (sic) were to deceive."

This is clearly a misdirection. S.120(g) of the Criminal Procedure Code expressly provides that it shall not be necessary to state an intent to defraud or deceive any particular person unless that is an essential ingredient of the offence. An intent to defraud a particular person is not an essential ingredient of an offence under s.330(3)(g) and the learned magistrate was wrong to dismiss the charge for that reason.

There was clearly prima facie evidence to show that the accused forged the letter dated the 15th February 1988 and that he did so with intent to deceive. He should have been required to make a defence to count 4. Counsel for the respondent argues that s.330(3)(g) only covers forgery of documents which have already been used in evidence in court. He submits that had the learned magistrate considered this argument (which was raised in the lower court) he would have been bound to acquit the respondent in any event. I do not need to make a final ruling on this interpretation of the section but I am bound to say that I do not think that counsel's interpretation can be correct. The ordinary and natural meaning of the words in s.330(3)(g) clearly includes forging documents which are then used in court. The section is not referring solely to documents which are used in court and then forged.

As to count 5, all the learned magistrate had to say was this;

"In respect of uttering there is not sufficient evidence in respect of the false document nor particulars of the uttering."

Again, I do not understand the reference to particulars. The charge as drawn complies with the requirements of s.120 of the Criminal Procedure Code, and no objection to the form of the particulars of charge had been taken by the defence. There was prima facie evidence that the accused uttered a letter dated 11th February 1988 and that the letter was a forgery. The learned magistrate failed to consider the evidence and erred in dismissing the charge for lack of particulars.

The normal order in such a case as this would be to remit the matter to the trial magistrate with a direction to continue hearing the case. The difficulty is that the trial magistrate has left the country. In view of the brevity of the record and the fact that both counsel are unhappy about the accuracy of the record I feel it would be unfair to permit a different magistrate to continue the trial under s.184 of the Code.

In the circumstances I feel that the only safe order is to allow the appeal in relation to counts 4 and 5 and to direct a retrial de novo before a different magistrate.

The appeal is dismissed in relation to counts 1, 2 and 3.

Michael W. Lodge
COMMISSIONER OF THE HIGH COURT