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Flynn v R [1999] SBCA 4; CA CRAC No 2 of 1998 (4 June 1999)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Criminal Appeal Case No. 2 of 1998

JOHN FLYNN
(Appellant)

v

REGINAM
(Respondent)

THE COURT: Kapi JA., Casey JA, Awich JA

ADVOCATES
Appellant: In Person
Respondent: DPP for the Crown

DATE OF HEARING: 31st May, 1999

DATE OF DELIVERY OF JUDGMENT: 4th June, 1999

KEY WORDS: Procuring miscarriage of three women.
Sentence 3 years concurrent.

JUDGMENT

THE COURT: The appellant was found guilty by the Chief Justice on three counts under s.150 of the Penal Code, Cap 5 (now s.157, Cap 26) of using an instrument to unlawfully procure a miscarriage in respect of three different women. He was sentenced on 4 November 1998 to concurrent terms of three years' imprisonment on each, and he appeals against his conviction and sentence. Unless leave has been granted in terms of s.20 (b) and (c) of the Court of Appeal Act, Cap 6, he can appeal only against his conviction, and then only on grounds involving a question of law alone. It was clear from his submissions that his appeal had been filed without legal assistance we thought it appropriate to ascertain the merits of his case in order to decide whether we should exercise our powers under ss.32 and 47 of the Court of Appeal Act to extend the time for applying for leave, and to treat his notice of appeal as such an application.

The three women gave evidence of having consulted the appellant, whom they believed was an abortionist, in order to terminate their pregnancies. Each said he required a fee of $600.00 and that they attended his rooms at different times where he inserted a tube into their vaginas through which a liquid was introduced from a container. In one case the pregnancy was terminated, but not in the other two. In his evidence the appellant denied conducting abortions and in particular using an instrument on the three women, and explained that the item produced in Court, which they said had been used on them, was in fact enema equipment which he had purchased and used to treat his constipation problems.

In his decision the learned Chief Justice said he found no reason to doubt what the main prosecution witnesses had told the Court and dismissed appellant's suggestion that they were agents of the Immigration Department seeking to entrap him. He found ample evidence of intent to procure a miscarriage. He correctly directed himself to the danger of convicting the accused in the absence of corroboration, and referred to some items of independent evidence connecting him with the offences. However, he made it clear that, even if he were wrong about corroboration, he found the three women's evidence true "beyond any doubt whatsoever," and had no reason to doubt it. In these circumstances he was entitled to convict the appellant, notwithstanding the absence of independent corroborative evidence.

In his submissions to us the appellant (who appeared in person) complained at some length about the way he was treated by police and immigration authorities before his trial, but we pointed out that those matters could have no bearing on his appeal. He criticised the absence of satisfactory evidence, submitting that the Chief Justice should not have accepted the testimony of the three women concerned (who had no special medical knowledge) without confirmation by expert evidence about the equipment alleged to have been used on them, and about the nature of the liquid involved.

The offence is described in the Penal Code in these terms:-

"any person who, with intent to procure the miscarriage of a woman, whether or not she is with child, unlawfully.........uses any..........means whatever, shall be guilty of a felony, and shall be liable to imprisonment for life."

It is clear from this definition that if the enema equipment and its contents were used by the appellant on these women with intent to procure their miscarriage, the offence was complete, whether or not those items were capable of achieving that purpose, or designed for some other use.

If the women were telling the truth, their testimony made it clear beyond doubt that the appellant used the equipment on them with the intention of procuring their miscarriage. There was no need for expert evidence in these circumstances. Assessment of their credibility was a matter for the trial judge who saw and heard them in the witness box, and we see nothing in the record of their evidence which raises any question about the truth or reliability of their evidence. We are satisfied the appellant was rightly convicted.

As to sentence, prison terms totalling three years cannot be regarded as inappropriate or excessive for this offending, which carries a maximum penalty of life imprisonment.

For these reasons leave to appeal against conviction and sentence must be refused, and the appeal is dismissed.

Kapi J.A.
Casey J.A.
Awich J.A.