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Majoria v Regina [2012] SBHC 144; HCSI-CRC 491 of 2011 (9 October 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(CRC NO. 491 of 2011)

HAVEA MAJORIA

–V-

REGINA

Date of Hearing: 8 October 2012
Date of Judgment : 9 October 2012

W. Rano for the Appellant
M. Hartmann for the Respondent

JUDGMENT
Appeal Against Conviction

PALLARAS J:

[1] This appeal began as an appeal against conviction and sentence. During submissions, the appeal against sentence was abandoned.

[2] The issue in the appeal as conceded by Mr Rano for the Appellant, was whether or not the learned Magistrate erred in his assessment of the credibility of both the Crown and the Defence witnesses. It was conceded that if the Magistrate was entitled to make the assessments he made then there was sufficient evidence to support the conviction of the Appellant on each count.

[3] The issue then was quite specific and circumscribed. The Appellant complained that the learned Magistrate was wrong to believe the Crown witnesses and also wrong in failing to believe the Defence witnesses. This latter point extended at one stage to an assertion that the learned Magistrate had reversed the onus of proof.

[4] Both counsel helpfully tendered written submissions which I have read carefully. In addition I take into account the oral submissions of counsel for the Appellant. Apart from on one point, I did not call upon counsel for the Respondent.

[5] It was emphasised during the hearing of the appeal that the issue was one of the credibility of the witnesses rather than the sufficiency of the evidence provided by the witnesses. The learned Magistrate made unequivocal findings, as he was entitled to do, that the Appellant was a witness who often contradicted himself, was unreliable and untruthful. He was equally unimpressed by the evidence called by the Appellant in his defence.

[6] He assessed the Crown witnesses to be credible and largely reliable and so the issue for him became whether or not there was sufficient evidence upon the Crown case to prove the allegations beyond reasonable doubt. He found that there was and, as was conceded by the Appellant in this hearing, if he was correct in his assessment of the witnesses then there was sufficient evidence upon which to found a conviction beyond reasonable doubt.

[7] The task for the Appellant therefore was to show that in coming to these judgements on credibility, the learned Magistrate was wrong. As rightly conceded by the Appellant's counsel, this is a task made even the more onerous by the fact that the account of the principal witness against the Appellant at trial was, inexplicably, barely challenged by the defence in cross examination.

[8] It is well established that an appellate court will only interfere with the trial judge's assessment of the credibility and weight of the witnesses at trial if the assessments are clearly wrong and unsupportable by the evidence.[1]

[9] It has been well said[2] that the advantage enjoyed by a trial judge over an appellate court in matters of credit is "incalculable", having seen and heard the witnesses testify and having had the opportunity to assess and evaluate their demeanour when doing so.

[10] The Appellant has not referred to any authorities that would lead this court to the conclusion sought nor was any attempt made in oral submissions to confront or respond to the authorities referred to by the Crown.

[11] The Appellant has failed totally to demonstrate why it is that I should not defer to the conclusions reached by the trial judge or indeed to show why I should entertain any doubt that he is correct – far less than showing that I should be convinced that he was wrong.[3]

[12] Appeal courts are rightly loath to interfere with the judgments made on a daily basis by Magistrates in a far better position to assess and evaluate issues of credibility and weight than this Court unless compelling reasons are shown why they should. In equating adverse findings with an alleged failure by the Magistrate to properly evaluate the credibility and weight of the testimony given, the Appellant in this case has fallen very far short of that mark.

[13] The appeal against conviction is dismissed.

Appeal Against Sentence

[14] As indicated above, this appeal began as an appeal against conviction and sentence. During the course of submissions counsel for the Appellant abandoned the appeal against sentence.

[15] Section 293(2) of the Penal Code [Cap.7] provides that –

(2) At the hearing of an appeal the High Court may –

(a) if it thinks that a different sentence should have been passed, quash the sentence passed by the Magistrate's Court and pass such other sentence warranted in law (whether more or less severe)[4] in substitution therefor as it thinks ought to have been passed;

[16] In my view the sentences passed on the Appellant were certainly generous to him. The offences were most serious and had the capacity to have far reaching consequences. While the learned Magistrate made the sentences of 3 years and 4 years concurrent, a good argument can be made that they ought to have been made cumulative. Even so, when the totality principle is considered, it can also be argued that a head sentence of four years with concurrency is far too low for offences of this nature and seriousness.

[17] However in deciding against imposing a more severe sentence I am mindful that the prosecution were unable to quantify the damage caused by the Appellant's actions – either in monetary or other terms. In a clear omission, they surprisingly failed to lead any evidence of this at trial and were in no better position to inform this Court during the appeal.

[18] I note too that the Crown did not cross appeal on the sentence and no submissions were made before me as to the appropriateness of the sentences passed.

[19] Finally, as noted, the Appellant ultimately did abandon his appeal against sentence and while this factor itself is by no means determinative (given the provisions of s.293(2)(a) referred to), I judge with some lingering misgivings, not to interfere with the sentence imposed.

[20] The appeal against sentence is dismissed.

THE COURT

^[1] Keke v Regina [2006] SBCA 1; CA-CRAC 008, 009 and 11 of 2005
^[2] Gerea v DPP [1984] SBCA 2; [1984] SILR 161
^[3] See Powell and Wife v Streatham Manor Nursing Home [1935] A.C. 243, per Lord Wright at 265 and also
Toghovotu v Regina [2009] SBCA 7; CA-CRAC 11 of 2007
^[4] My emphasis