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Aukona v Solomon Island Electricity Authority [2013] SBHC 109; Criminal Case 274 of 2013 (15 August 2013)

IN THE HIGH COURT OF
SOLOMON ISLANDS

Criminal Appeal No. 2079 of 2012

LEONARD AUKONA

V –

SOLOMON ISLAND ELECTRICITY AUTHORITY

(PALLARAS QC)

Date of Hearing: 6th August, 2013
Date of Written Judgement: 15th August, 2008

Coram: Pallaras J
Counsel: Ms L. Ramo for Appellant
Mr B. Upwe for Respondent

1. On 20th June 2013, the Appellant was convicted in the Central Magistrate's Court of two counts relating to the illegal connection of electricity contrary to Section 42(2)(e) of the Electricity Act (Cap.128). In respect of the conviction on each count he was fined $400.
   
2. The Appellant has raised four grounds of appeal against his conviction. They were –
   

(i) That the learned Magistrate erred in law and in fact in convicting the Appellant of the offences charged without any evidence to support the charges.

(ii) That the learned Magistrate erred in law and in fact in convicting the Appellant without properly directing himself to the requisite standard of proof.

(iii) That the learned Magistrate erred in law and in fact in convicting the Appellant based upon circumstantial evidence without properly directing himself and or applying the 'only reasonable inference' test. And

(iv) That the learned Magistrate erred in law and in fact by failing or omitting to apply the law correctly.

3. The grounds might have been more carefully worded as, for example, each ground alleged, inter alia, mistakes of fact. When asked to identify what these mistakes of fact were, counsel was completely unable to do so. It was apparent that the grounds had been drafted using a formulaic approach rather than being expressed in a manner reflecting a proper analysis of the evidence in the case and the reasons for judgment. I permitted an application to amend each of the four grounds of appeal by deleting the words "and in fact" so that the complaint became an allegation of mistakes in law.
   
4. A further example of the careless approach to the preparation of the grounds of appeal is apparent from the fact that Ground 1 clearly contradicts Ground 3. Ground 1 alleges that the conviction was in error because it was arrived at "without any evidence" (my emphasis), while Ground 3 alleges that the conviction was in error because it was based on circumstantial evidence and that the circumstantial evidence allowed for reasonable conclusions other than the conclusion of guilt. It was conceded by counsel for the Appellant that Ground 1 contradicted Ground 3 and further that it could not be maintained.
   
5. In relation to Ground 4, when asked to identify the law and the error committed by the learned Magistrate in applying it, counsel for the Appellant was unable to do so. As the ground was not argued further, it was dismissed.
   
6. After hearing submissions, grounds 1 and 4 were dismissed and the appeal was allowed on grounds 2 and 3.
   
7. In relation to Ground 2, counsel for the Respondent conceded that the learned Magistrate at no time directed himself as to the relevant standard of proof. While it is inconceivable that the experienced learned Magistrate applied anything other than the right legal test, the standard of proof is such a fundamental aspect of a criminal trial that the trier of fact must be seen to have addressed his mind to it for the conviction to be safe. In this case, the learned Magistrate did not and this renders the conviction unsafe and makes out this ground of appeal. The appeal is allowed on this ground.
   
8. In relation to Ground 3, again counsel for the Respondent concedes that there is nothing in the judgment of the learned Magistrate to indicate that in drawing inferences against the accused based upon a reliance on circumstantial evidence produced by the prosecution, that he was of the view that the inference of guilt was the only reasonable inference open to him on the evidence. It may well be that a reasonable inference was open upon the evidence that it was indeed the Appellant who tampered with the electrical wiring and that this was the basis for the learned Magistrate's decision to convict the accused.
   
9. However, this is not the correct test. In a case of circumstantial evidence, the Court must be satisfied beyond reasonable doubt, and must indicate, that in drawing the inference leading to the finding of the guilt of the accused, that it was the only reasonable inference open on the evidence. In my view, the concession by the Respondent was properly made and substantiates the allegation made in Ground 3. The appeal is allowed on this ground.
   
10. The appeal is therefore allowed on Grounds 2 and 3 and the matter is remitted back to the Magistrate's Court to try the matter according to law in relation to my findings on Grounds 2 and 3.
    
11. I would also add this. It is pointless bringing an appeal in this Court without providing the material necessary to allow a proper assessment of the strength of the cases and the arguments being presented in the appeal. In this case, neither party have seen fit to inform the Court effectively and all that I have been provided with is essentially the judgment of the Court below. That is insufficient and both parties ought to have known that this Court would not be in a position to make an assessment of the various competing strengths of the case without better preparation by counsel and by the provision of fuller information by the parties. I also would add that had I been provided with sufficient material upon which to make findings as to the relative strengths of the cases I would certainly have been prepared to consider the appropriateness of the penalty imposed which strikes me as being extremely lenient.
    

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THE COURT