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Regina v Asia [1993] SBHC 80; HCSI-CC 45 of 1992 (10 December 1993)

CRC - 45/92.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 45 of 1992

REGINA

-v-

PATRICK ASIA AND FREZER LAUSALO

High Court of Solomon Islands
(Palmer J.)

Criminal Case No. 45 of 1992

Hearing: 7 December 1993
Judgment: 10 December 1993

DPP for Prosecution
J. Remobatu for Asia
B. Titiulu for Lausalo

PALMER J: The two accused in this case have been charged with the offence of grievous harm contrary to section 219 of the Penal Code. The particulars read that on the 28th of March 1992 at Foxwood, Guada1canal Province, both accused unlawfully did grievous harm to John Lovana.

It is not disputed that on the evening of the 27th of March 1992, the two accused, with PW4, Fred Osili, were drinking at Tenavatu Club. It is not disputed too, that the victim, John Lovana was at the club that evening.

Sometime later that evening or in the very early hours of the 28 March 1992, the two accused with PW4 and another man described as Peter Malakai, left the Tenavatu Club. They went to PW4’s house and then left Peter Malakai there. The three of them decided to go to the Foxwood married quarters to play a game called, ‘in and out’, for money.

On their way, they walked past the security guard, Aziel Wewe. This witness said that the time was about twenty minutes past one. All persons each had a can of beer in their hands. Aziel Wewe also pointed out that he saw hanging around Patrick Asia’s neck, an axe. The three men continued past the main road. A diagram, exhibit 1, has been produced in court to show the various positions of certain places and the line of travel of the 3 men. Point ‘A’ is where he was met by the 3 men. Point ‘B’ is the mango tree under which he initially saw the three men drinking. Point C is the spot where the victim was found. Point D is the Foxwood married quarter, the destination of the three men.

It is not disputed that the three men did reach their destination. PW5, George Sale confirmed in his evidence under oath, that the three men joined the group sometime after they had started playing at about 10.30 pm. Going on Aziel Wewe’s time estimate, between 1.20 a.m and 2.00 am on the 28 March 1992. The first person to leave was Fred Osili, then Patrick Asia. Frazer Lausalo played until daylight.

It is not disputed that the victim was found lying unconscious on the main road between 3.00 to 4.00 a.m in the morning of the 28/3/92, by a market truck driver, Joseph Qotho, the second prosecution witness. It seems that the victim had been lying there for sometime.

There is no evidence to show when the victim left the Tenavatu Club. What seems to have happened is that the victim was attacked as he was returning to his home after the club had closed.

The key prosecution witness, Fred Osili, unfortunately turned hostile during his examination in chief under oath. The evidence of this witness from the time they left the Tenavatu club to the time they met up with the security guard, Aziel Wewe is not in dispute. The bit about what happened from the time they reached the main road and before reaching the Foxwood married Quarters as contained in his unsworn statement to the police, has been denied by this witness. He denied hearing anyone singing, and denied seeing anyone fighting. After he was declared hostile, he was asked by the learned Director of Public Prosecutions if he saw the victim John Lovana, coming along the main road towards them. He denied this too.

It seems to me that this witness has turned cold to cover, up something which he knew about. The value of his evidence unfortunately, it seems, has been rendered negligible, or to a certain extent unreliable, and it would not be safe for this court to place too much emphasis on what he has said. When asked which version is the truth, he said what is now saying in court.

The unsworn cautioned statement of the accused Frazer Lausalo, is not evidence against, the co-accused, Patrick Asia.

This leaves very little evidence of probative value against the defendant Patrick Asia. Apart from the unsworn statement of Fred·Osili that Police had, there is no other direct evidence to link him with the assault and, attack against the victim. It may be true that he had an axe hanging around his neck when seen by Aziel Wewe, and by the time he reached the Foxwood married Quarters, he did not have the axe with him. The question may be asked, what happened to that axe? The answer with respect, is that nobody knows what happened to it. To draw the inference that the accused, Patrick Asia used the axe to attack the victim with in my view is stretching things a bit too far. There is a strong suspicion that it was him who must have attacked the victim, and it is possible that that is so. But in the absence of cogent evidence I cannot be satisfied that even a prima facie case exists, which is sufficient to put him on his defence.

If the evidence called so far is the only evidence against the defendant, I am still not satisfied that that would be sufficient to even enter a conviction against this accused.

Accordingly, he must be acquitted, on the basis of a no case to answer.

The accused, Frazer Lausalo’s case however, is different. I have before me an admissible piece of document, an unsworn cautioned statement made to police about 8 to 9 days after the alleged attack on the victim. In such a time span, the events that occurred on the early hours of the 28/3/92 should still be fresh in the mind of this accused.

Usually, a voluntary statement is a true statement. So I ask myself at this point of time, if there is any reason why I should not believe or accept the contents of the cautioned statement as true!

When the accused made the statement, he was well aware that it could be used against him in court. It is very unusual for an accused to incriminate himself voluntarily, other than if he is simply confessing to the truth of what he did in that case. Despite the caution, he has gone ahead to incriminate himself.

I note the accused here has elected to remain silent. I accept this is his constitutional right but that has not helped him much here. There has also been no other evidence or submissions made, by his learned counsel, Mr. Titiulu, other than to say that the details of assault or the attack on the victim did not cause most of the serious injuries on the upper part of the victim’s body. The plea made by his counsel is more on the side of mitigating the part he played in the attack, and the appropriate place for this with respect is when sentence is being considered.

I am satisfied on the words from this accused’s own mouth, as contained in his cautioned statements, that he took part in the attack against the victim, which resulted in the grievous injuries caused upon him. I am satisfied beyond reasonable doubt that he was a participant in the combined attack and that he is as guilty as the principal offender, who inflicted the serious injuries with a blunt instrument on the upper part, of the victims body. He is convicted accordingly.

(A.R. Palmer)
JUDGE