IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	
Appeal from Judgment of The High Court of Solomon Islands (Kouhota J)	

Court File Number:	
Criminal Appeal Case No.32 of 2017 
(On Appeal from High Court Criminal Case No. CC 225 of 2015)       

Date of Hearing:
	
1 May 2018	

Date of Judgment:
	     
11 May 2018	

The Court:	
Goldsbrough P 
Hansen JA
Young JA

Parties:	
REGINA

-V-

DOMINIC OLI	
ADVOCATES:

APPELLANT:

RESPONDENT:

S. Ramosaea

N. Galo 	

KEY WORDS:	   

ExTempore/reserved:
	
RESERVED	

ALLOWED/DISMISSED
	
ALLOWED	

PAGES	
1- 9

On 8 September 2017, following trial, Kouhota PJ found the respondent not guilty of manslaughter contrary to s 119 of the Penal Code, and not guilty of a charge of rash or negligent act pursuant to s 237 of the Penal Code.
Background facts
1.	The Crown alleges that the respondent unlawfully caused the death of a young woman called Laura Walefia by hitting her with the 40 horsepower Yamaha engine of the boat he drove that day.  The Crown case was that there were children playing in the water and in a dug-out canoe an area in front of the Lilisina Village near Auki.  It is alleged the respondent drove his boat at high speed to the Auki wharf where he dropped off some passengers who wished to take the MV Lafusi to Honiara. It was then said he left the wharf, again at high speed heading directly for the canoe and the children ultimately allowing the boat to strike the deceased causing the fatal injuries.
2.	It was agreed the three elements of the charge of manslaughter were the identification of the offender, who by an unlawful act or omission, causes the death of another person.  The trial was limited to the second element, with the Crown alleging the respondent was negligent and reckless in the manner in which he drove the boat, thereby committing the unlawful act.
3.	In closing, the Crown submitted that if the Judge did not agree that the manner in which the defendant drove the boat amounted to culpable homicide and that what he did was unlawful, he ought to consider a lesser offence of rash and negligent act contrary to s 237(b) of the Penal Code as such charge was proven by the evidence.
The Judge’s decision 
4.	Despite a number of Crown witnesses describing the outboard as travelling fast and at full throttle, the Judge found the Crown case full of inconsistencies, rendering it unsafe to rely on.  He found he was left with reasonable doubt whether the accused caused the death of the victim by an unlawful act. He stated that he thought the same elements had to be proved under s237 as well and acquitted the respondent of both charges. 
5.	In relation to the alternate charge put forward in closing submissions by the Crown, the Judge said:
It is unfair to the accused that the prosecution after closing their case further seeks to have him convicted of an offence for which he was not charged.  The proper approach is for the prosecution to properly consider the evidence available and decide on the appropriate charge or information to be laid against the accused.  Is a matter [sic] that the prosecution should have considered before opening their case to afford the accused the opportunity to prepare his defence.  To wait until the closing submission then seek to have the accused convicted of an offence for which he was never charge [sic] is unfair to the accused and borders on an abuse of the Court’s process.
Of course the Criminal Procedure code makes provisions for situations where an accused could be convicted of an offence that he was not charged with, but this an alternative [sic] that the Court should never be taking if the prosecution properly considered their evidence before laying charges or filing information against accused persons.
In the present case the prosecution submits that the accused should be convicted for Reckless and Negligence and Negligence act under section 237 of the Penal Code. That is easier said than done because in order to convict the accused as urged by the prosecution.   The evidence of the prosecution adduced must still have to prove the elements of recklessness and negligence and the test is, I think, is the same as stated in Andrews v Director of Public Prosecutions referred to above.
                 
The submissions
6.	The Crown submitted that the assertions in the paragraphs above are contrary to the provisions of s 159 of the Criminal Procedure Code.  The Crown further submitted that the Judge appeared not to be sure what the test was on the alternative charge.  His failure to state the correct test is said to be an error of law that compromised the case and its final conclusion. The Crown further submits that all the elements required by s237 were established by the evidence and the judge should have convicted on that lesser charge. 
7.	The respondent acknowledged the prosecution in closing asked the Court to consider the charge under s 237 as an alternative to the charge of manslaughter.  But they submitted that was irrelevant, as the Court in considering the evidence was left with a reasonable doubt on an essential element of s 237.  On that basis, they say the appeal should be dismissed.
Decision
s159 Criminal Procedure Code
8.	Section 159 of the Criminal Procedure Code provides:
(1)  When an person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.  [our emphasis]
9.	It can be seen from the passages cited above from the Judge’s decision that he has either not turned his mind to s 159, or misunderstood it.  In the circumstances of this case, the Crown’s closing submissions requesting the Judge consider a lesser offense under s 237, if he found the accused not guilty of manslaughter, was perfectly proper.  Indeed, we see it as incumbent on the Crown to have made such a submission.
10.	s159 (2) gives a discretion to a trial judge to convict on a lesser offence where the facts proved satisfy the elements of such lesser charge.  If a judge is satisfied that an accused should be acquitted of the offence charged, but the elements of a lesser charge are proved beyond a reasonable doubt, it will only be in some exceptional circumstances that a conviction should not be entered on the lesser charge.
The lesser offence 
11.	In relation to the s237 offence, we accept that there seems to be some confusion in the Judge’s mind as to the test to be applied to it.  In the final paragraph of the passage cited above he obviously considered that the prosecution had to prove recklessness and negligence to prove the elements of s237. For reasons that follow that is incorrect. However, we have sympathy for the judge who may have been misled by the closing submission of the prosecution at para 35 where it is stated “The elements the Crown is required to prove on a charge of reckless and negligent acts…”. Immediately following the Crown accurately set out the necessary element as “rash or negligent’ but the passage just cited is entirely misleading and incorrect.
S22 (3) Criminal Procedure Code
12.	The Crown sought on this appeal that we convict the respondent on the lesser charge and sentence him. We turn first to the power of this Court to so convict and then the elements of the charge and the evidence relating to the charge.
13.	S22(3) of the Court of Appeal Act reads : 
              (3) On any appeal brought under the provisions of this section, the Court of Appeal may, if it thinks that the decision of the Magistrate's Court or of the High Court should be set aside or varied on the ground of a wrong decision on any question of law, make any order which the Magistrate's Court or the High Court could have made, or may remit the case, together with its judgment or order thereon, to the Magistrate's Court or to the High Court for determination, whether or not by way of trial de novo or re - hearing, with such directions as the Court of Appeal may think necessary: 
It can be seen that this provision empowers this Court to make any order the High Court could have made. We are satisfied that we have the jurisdiction to enter a conviction as sought by the Crown.
14. However, it is incumbent on the Crown to go further than cite 22(3) in the Notice of Appeal and submissions. They have an obligation to clearly enunciate the orders sought on appeal so that a respondent, and the Court, is left in no doubt.
S214 Penal Code
15.	 Before turning to s237 it is necessary to consider the provision S214 of the Penal Code which states: 
                214. It is the duty of every person who has in his charge or under his control anything,     whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he shall be deemed to have caused any consequences which adversely affect the life or health of any person by reason of any omission to perform that duty.
16.	 Clearly the respondent was in charge of the boat, an object that in the absence of care could endanger the life, safety or health of another. The duty under the section applies to him. 
S237 Penal Code
17.	 We turn now to s237 which, where relevant, states:
      237. Any person who, in a manner as rash or negligent as to endanger human life or to be likely to cause harm    to any other person -
(b) navigates, or takes part in the navigation or working of, any vessel;

 is guilty of a misdemeanour. 

18.	 The Crown’s submission to the Judge referring to “reckless and negligent” was clearly wrong. The “manner” must be either “rash” or ‘negligent”, one or the other, but not both. In this case the Crown rely on “negligent”. This is well understood concept in law that it is unnecessary to address further. Essentially the Crown submission is that the respondent breached s214. We turn to the evidence of negligence.

19.	 The Judge in acquitting the respondent referred to the inconsistencies in the Crown evidence and this led to the acquittals. However, there is little in the way of findings in relation to the analysis of this evidence. Most of the inconsistencies referred to go to matters such as whether it was high or low tide; the exact route of the boat; the position of the canoe; and the position of the children in the water. However, other than mentioning the inconsistencies the judge does not appear to have analysed the inconsistencies and there relevance to the Crown’s case in any detail.  There were no specific findings as to the speed of the boat nor the respondent’s state of sobriety. 
20.	 Traumatic events, such as these, frequently happen very quickly. In such circumstances there will almost certainly be differing memories of the precise events. And while such inconsistencies are often a relevant consideration it is also often the case that this is  the result of an honest witness doing their best to recall awful events. Inconsistency alone does not automatically lead to the rejection of evidence.
21.	 We turn to evidence that was not the subject of specific findings by the judge. Clearly, the respondent’s boat hit the young girl. The starting point is the evidence of the accused himself. The events occurred in the afternoon. The accused admitted drinking 4 bottles of beer in the morning. He acknowledged in cross examination that he should be careful around children when driving his boat. (This is an acceptance of a duty of care).  He acknowledged that he saw children swimming at Lilisiana. Importantly, he said “didn’t see many children swimming at the wharf”. It is implicit in this evidence that there must have been some children swimming at the wharf.
22.	 No fewer than six Crown witnesses spoke of the boat travelling at speed. They were not successfully challenged in cross examination on the matter of speed. A number of these witnesses spoke of it being a 40hp motor and it was roaring. The accused and a fellow traveller spoke of travelling at a safe speed. But Billy Iro another passenger spoke of the boat going at a high speed and then slowing to a half speed. But in cross-examination he said “You have to be careful in an area when children are swimming. Half speed a little bit high; 40HP engine a high power, high speed is still high”
23.	 We are satisfied that the evidence establishes beyond reasonable doubt that when driving his boat at the time of the incident the respondent was travelling at an unsafe speed. Given his acknowledgment of the need for care when children were swimming in both areas we are also satisfied in the circumstances he failed to keep a proper lookout.
24.	 As well as the respondent’s own admission of drinking beer in the morning there is the evidence of Sgt Ramosaea and PC 1406 Donna. At the time of the incident Sgt Ramosaea had been in the Police for 18 years. He spoke to the respondent and one of his passengers. He stated: “When I was talking to the two men, they strongly smell of liquor and eyes were red. From my experience as a police officer, I know that they are drunk.” In cross examination “Now working in traffic. I had come across people who are under the influence of alcohol. Yes they were under alcohol as they were not walking steadily or normally” He agreed that he didn’t test them by walking a straight line but said this was because too many people were around.
25.	 PC Donna gave some similar evidence but we set it aside as it is not clear that the person she was talking about was the respondent. Other witnesses spoke in general terms of the people in the boat being drunk as they were laughing and shouting as drunk people would. That evidence takes the matter of intoxication no further. Sgt Ramosaea was a very experienced police officer. We accept that because of circumstances he was unable to undertake any sobriety test. But we are satisfied on the basis of his evidence that the respondent was under the influence of alcohol at the relevant time.
26.	 We are satisfied that the evidence establishes beyond a reasonable doubt that the respondent was aware that he had a duty to be careful in areas where children were swimming; that he was aware children were swimming at Lilisiana and near the wharf; that despite this he failed to keep a proper lookout for these children; that he was travelling at a speed that was excessive in the circumstances; and he was under the influence of alcohol. He clearly had a duty and was negligent in his exercise of that duty. Accordingly, the respondent is convicted of offence against s237 of the Penal Code.
27.	 The negligence here was very high and in the normal course of events would warrant a sentence near the maximum two years for this misdemeanour.  However, noting this is a Crown appeal we impose a sentence of 1 year’s imprisonment. The respondent spent in excess of 14 months in custody before he was bailed. There is no reason why he is not entitled to a credit for this time in custody. Accordingly, his sentence has been served.

………………………………
Goldsbrough P                                                                       

………………………………
Hansen JA

………………………………..
Young JA