1985-1986 SILR 118

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 38 of 1985

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMEON (NO. 1)

High Court of Solomon Islands
(Wood C.J.)
Criminal Appeal Case No. 38 of 1985

22 November 1985 at Honiara
Judgment: 22 November 1985

Criminal Procedure - Criminal Procedure Code s.284 - leave to appeal out of time - miscarriage of justice.

Facts:

The respondent was convicted by the Principal Magistrate (Western) of causing grievous harm c/s 219 of the Penal Code and sentenced to five months imprisonment. Another charge alleging unlawful wounding was adjourned to be heard by a different Magistrate. The respondent was subsequently convicted of the wounding charge by the Principal Magistrate (Central) and sentenced to four months imprisonment to run consecutively to the earlier sentence. The petitioner appealed against the second sentence and sought leave to appeal out of time against the first sentence on the grounds that-

(1) the respondent had been in custody anyway awaiting trial of the second charge and so would not be prejudiced by an appeal against the first sentence as would be an accused against whom all proceedings have been concluded; and

(2) the petitioner wished to consider the total of sentences passed before appealing.

Held:

The petitioner did not show good cause as required by s.284(1) of the Criminal Procedure Code why the time for appeal should be enlarged. He should have lodged his appeal against sentence on the first conviction within fourteen days of the decision rather than speculating on the outcome of the other charge as the appeal of the first sentence could have been adjourned until the other charge had been disposed of. The appeal on the second conviction was lodged in time and would be heard and at that time the totality of the sentences would be considered, but the sentence on the first conviction could not be altered. (R. v. Faulkner (No.2) (1983) SILR 282 followed for the proposition that time for appeal may be enlarged only if justice has miscarried).

Accordingly, leave to appeal was refused.

Cases considered:

R. v. Faulkner (No.2) (1983) SILR 282
R v. Brown (1963) SASR 190

John Freeman for the Petitioner 
Kenneth Brown for the Respondent

Wood CJ: This is a petition for leave to appeal out of time under s.284(1) of the Criminal Procedure Code brought by the Director of Public Prosecutions. The respondent was convicted by the Principal Magistrate (Western) on the fourth count of a charge sheet which alleged that the respondent had caused grievous harm c/s 219 of the Penal Code. He was sentenced to 5 months imprisonment on August 28, 1985 and a charge on the fifth count alleging unlawful wounding c/s 222 of the Penal Code was adjourned to be heard by a different Magistrate. The respondent was subsequently convicted on the fifth count by the Principal Magistrate (Central) and sentenced to 4 months imprisonment on October 11, 1985 the said sentence to run consecutively to that imposed on August 28, 1985. On October 17, 1985 the petitioner appealed against the sentence imposed on count 5 and sought leave to appeal out of time on count 4.

The petitioner’s grounds for leave to appeal out of time were as follows- 

(1) the respondent has been in custody on count 4 ever since it was passed awaiting trial on count 5 and so is not in the same position as an accused against whom all proceedings have been concluded;

(2) the petitioner wished to consider the total of sentences passed on the respondent before appealing.

Mr Freeman quite rightly, in my view, conceded that with hindsight he should have lodged his appeal against sentence on count 4 within 14 days when the matter could have been adjourned until sentence was passed on count 5. He follows this by saying that the respondent would not now be prejudiced if I were to grant leave to appeal out of time and that the “sigh of relief” principle does not apply in this case. Mr Brown relies on the principles enunciated by Daly CJ in the case R. v. Faulkner (No.2) (1983) SILR 282 which dealt with the provisions of s.284 of the Criminal Procedure Code. That section provides as follows– 

“284(1) Subject to the provisions of any Rules of Court every appeal shall be in the form of a petition in writing signed by the appellant or his advocate and shall be presented to the Magistrate’s Court from the decision of which the appeal is lodged within fourteen days of the date of the decision appealed against:

Provided that the Magistrate’s Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.

(2) For the purposes of this section and without prejudice to its generality “good cause” shall be deemed to include– 

(a) a case where the advocate engaged by the appellant was not present at the hearing before the Magistrate’s Court and for that reason requires further time for preparation of the petition;

(b) any case in which a question of law of unusual difficulty is involved;

(c) a case in which the sanction of the DPP is required by virtue of section 282”.

This application is therefore before me under s.284(1) by which I may enlarge the prescribed period of limitation provided that the petitioner can show good cause why I should do so. The grounds of this petition do not fall within the provisions of s.284(2)but on the other hand those provisions are not exclusive but examples of what may be deemed to be “good cause”. However I would agree with Mr Brown that the petitioner has failed to show good cause in this case. There was no reason why he could not have lodged his appeal in time and any hearing of the appeal would have obviously been adjourned until the 5th count was finally disposed of. Instead he chose to speculate on the outcome of the 5th count before deciding to appeal on the 4th count as well.

In Faulkner’s case Daly C.J. cited the case of The Queen v. Brown (1963) SASR 190 at pages 191 and 193– 

“When the time prescribed by the Act has expired the party convicted has lost his right to appeal, and it is for the Court to say whether, taking all the circumstances into account, it is in the interests of justice that he should be permitted to institute and pursue his appeal.” (at page 191).

“It seems to us that, if we have jurisdiction to sanction the institution of an appeal at this stage, then, in the exercise of our discretion, we ought not to do so unless we are satisfied that there is, at the least, grave reason to apprehend that justice has actually miscarried, that is to say that the conviction was contrary to the truth and justice of the case.” (at page 193).

Brown’s case obviously dealt with a prisoner’s appeal against conviction whereas in Faulkner’s case it was the DPP’s appeal against an acquittal. The instant case is an appeal by the DPP against what is alleged to have been an inadequate sentence. The appeal against sentence on count 5 has been lodged in time and will be heard in due course. When that appeal is heard this Court will not be able to alter the sentence on count 4 but nonetheless will be entitled to look at the totality of sentences imposed on the respondent on the charge sheet. I cannot see therefore that in this case there is any reason to apprehend that justice has miscarried and would accordingly refuse this application.