CRC, 14, 95.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.14 of 1995

REGINA

-v-

PHILIP TAHEA & TWO OTHERS

High Court of Solomon Islands
(Palmer J)
Criminal Case No. 14 of 1995

Hearing: 17 April 1996
Ruling: 18 April 1996

Director of Public Prosecutor for Prosecution
M. B. Samuels for Philip Tahea
T. Kama for Amos Teikagei
P. Lavery for Damaris Teikagei

PALMERJ: There are three accused in this case, two have been charged with one of the most serious offences under the Penal Code, that of murder, whilst the third one has been charged with the offence of grievous harm contrary to section 219 of the Penal Code. The offences all related to the same incident which occurred on 10th February, 1995 at Tinggoa Settlement, Russell Islands. Two of the accused have made a submission of no case to answer. These are Amos Teikagei, who has been charged with murder, and Damaris Teikagei who has been charged with grievous harm. Both accuseds are husband and wife.

The Law.

The starting point must be section 196 of the Criminal Procedure Code which deals directly with the question of a submission of no case to answer.

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall acquit the accused.”

The key word to take note of is the word “sufficiently”. There must be a case sufficiently made out at the close of the prosecution case to require the accused to make a defence. What does this mean in practice? This is where the case law built up in English Courts and the various texts referred to by Defence Counsels, relevant. The learned author in Archbold Criminal Pleading Evidence and Practice, 39th edition, at paragraph 575 refers to the submission of no case to answer as a submission of insufficient evidence. When that is compared to our section 196 Criminal Procedure Code, that says exactly the same thing. The learned Author in Archbold (supra) also points out that in addition to the submission of insufficient evidence, a further submission is often made that “... the evidence is so tenuous that it would be unsafe to leave the case to the jury.” The case relied on was Regina -v- Falconer-Atlee (1974) 58 Cr. App. R. 348, CA.

At paragraph 575a, the learned Author in Archbold also refers to a Practice Note issued by the Divisional Court [1962] 1 All E.R. 448:

“...without attempting to lay down any principle of law, ...as a matter of practice justices should be guided by the following considerations: A submission of no case may properly be upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it. The decision to uphold or reject the submission should not depend upon whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit, but upon whether the evidence is such that a reasonable tribunal might convict.”

Reference was also made to the text, Criminal Law and Practice of Papua New Guinea, Second Edition, by Defence Counsel, T. Kama, at pages 620 and 621.

At page 620, paragraph (5), the following comment was quoted:

“It is of fundamental importance to a fair trial in our system that the judge as tribunal of fact never be required to weigh up the evidence more than once, and then only when all of the evidence is in. It follows that any weighing of the evidence by the judge or magistrate, required by a “no case to answer” submission at the close of the State case, should be kept to the absolute minimum. (St.-v-Lasebose Kuriday (1981) N. No. 300.)”

Also at page 621, the following passages were quoted:

“In a no case to answer submission, the test is not whether an accused ought to be committed but whether on the evidence as it stands, he could lawfully be convicted. Where the prosecution fails to establish one of the elements of the crime, an accused cannot be convicted. Where, however, all the elements requiring proof have been covered by the evidence but such evidence is so unsatisfactory that the tribunal must feel considerable hesitation as to whether all or any of the essential material can be believed, an application may be made to stop the proceedings. In such circumstances, that is where there is insufficiency of evidence, an accused may as a matter of law, be called upon to proceed with his defence, but there is discretion in the judge not to call on him at all. St.-v-Lupam Lau and 3 Ors of Surinki (1981) No. 309 (M), following St.-v-Paul Kundi Rape (1976) P.N.G.L.R. 96.”

Where there is no case to answer, an accused may not, as a matter of law, be called upon to answer it. Where there is a case of insufficiency of evidence, an accused may as a matter of law be called upon to answer it, but there is a discretion in the judge either not to call on him at all, i.e. take the case away from the jury, or, at least to leave it to the jury to say whether or not they wish to hear more. St.-v-Paul Kundi Rape.”

Finally, a recent High Court decision in this jurisdiction, R -v- Lutu 1985/1986 SILR 249, referred to by the learned Director of Public Prosecutions, in which inter alia the learned Judge, Ward C.J., stated:

I feel that the words in section 196 that where “it appears to the court that a case is not made out sufficiently to require (the accused) to make a defence” suggest that, where the tribunal is judge of fact as well as law, it is entitled to consider the sufficiency of the evidence at the close of the prosecution case.

Clearly this is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidence are credible and accurate and which are not. These are all matters for the conclusion of the evidence as a whole and, where there is evidence that could result in a conviction by the court, then the accused must be put to his defence.

From the way learned counsels have presented their submissions on the law regarding a submission of no case to answer, it would seem that there was a conflict, or may be more accurately, uncertainty as to what exactly is the position in Solomon Islands from the various authorities referred to in other jurisdictions.

I do not think there is necessarily a conflict; may be uncertainty, yes. As pointed out earlier, the crucial requirement is that the court should be satisfied at the close of prosecution’s evidence that there is a case sufficiently made out to require the accused person to make a defence.

The English Authorities cited in Archbold (ibid) accurately set out the circumstances in which a court may be guided in such situations, that is:

(a) when there has been no evidence to prove an essential element in the alleged offence.

In such situations the evidence would have been insufficient to put the accused to his defence.

(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it.

In this case, there is evidence before the court or the judge, to consider, but that after cross-examination it had been so discredited to the point where it can be said that no reasonable tribunal could safely rely on it. In other words it had also become manifestly unreliable.

I think it is this latter part which has caused creates the confusion, in that it may not have been clear how it should be assessed in practice. This is where the comments of Ward C.J. in R -v- Lutu (ibid) at page 251, relevant as a guideline.

“Clearly this is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidence are credible and accurate and which are not. These are all matters for the conclusion of the evidence as a whole and, where there is evidence that could result in a conviction by the court, then the accused must be put to his defence.”

Does this mean that the court should not evaluate the evidence? The answer is no, but as stated by the learned authors in Criminal Law and Practice of PNG at page 620, and referred to by Mr. Kama, “...any weighing of the evidence by the judge or magistrate, required by a “no case to answer” submission at the close of the state case, should be kept to the absolute minimum.”(Emphasis added).

Also, at page 619 of the same text, the learned authors made similar pertinent comments.

“Second, where there is more than an iota of evidence with respect to each element of the offence, the court still has discretion whether or not to entertain the “no case” submission. However, a submission on this basis should be entertained only when the judge really has no weighing up to do. That is, it must be a very clear case…”

An important point to note here as well is that, a submission of “no case to answer” is a question of law. In other words, if at the close of prosecution evidence, that was the only evidence before the court and nothing more, (and one could imagine the situation where the defence decides not to call evidence), could a reasonable tribunal enter a conviction? If not then the court should not require the accused to make a defence. This was more or less what was said by Ward C.J. in Lutu’s case (supra), at page 251, paragraph (3):

“Where, however, there is some evidence but it is so little or unconvincing (and I would add “has been so discredited in cross-examination”) that it is insufficient even if uncontradicted by the defence to make a conviction possible, the court should not require the accused to make a defence.”(Words in brackets added).

The Accused Damaris Teikagei – the evidence adduced by Prosecution

Briefly the evidence as adduced by prosecution against Damaris is based on what is alleged to be a direct eye witness account by the victim, Concey (Constance Tehavinu). Short of attempting to make any conclusive assessment of that witness’s evidence, she stated that both Philip Tahea and Damaris Teikagei pushed her backwards and caused her to fall down, but she made the clear distinction in her evidence in chief that it was Damaris who had cut her head with a knife.

In cross-examination a number of inconsistencies were raised between the statement of this witness as made to Police and what she told the court. It was submitted that the answers of this witness were evasive and unsatisfactory and that she was not telling the truth thereby. It was submitted that she had ulterior motives against Damaris and that her evidence was mere inventions. However, short of making any conclusive assessment on the state of the evidence, I am not satisfied that it can be said at this stage conclusively and confidently that this witnesses evidence had been so discredited in evidence.

The submissions raised on the inconsistencies, contradictions and evasiveness, of Prosecution witnesses coupled with the admission made in the caution statement of co-accused, Philip Tahea that it was him who had cut Concey, these are all matters of weight and credibility which the court should properly assess at the conclusion of the evidence as a whole. If the court at the end of the day should accept the evidence of the victim as truthful and correct, after assessing the relative weight to be attached to all the inconsistencies and contradictions raised in cross-examination, then there would have been sufficient evidence on which a reasonable tribunal could have entered a conviction.

The submission of a no case to answer against her therefore must be dismissed.

AMOS TEIKAGEI

The evidence as adduced by prosecution against this accused is again based on the crucial evidence of Concey Tehavinu. I point out at the outset that she gave her evidence as a direct eye witness of what transpired. She places this accused directly on the scene and that this accused took part in attacking the deceased, first with what she described as a carving knife and then later with a bush knife when the deceased was lying on the ground and for cutting the deceased’s right hand off.

This accused however has been charged with murder and one of the crucial submissions made by Mr Kama is that the element of “malice aforethought” had not been established. He argues that even if there had been a stab wound (which was denied) and that the deceased had been cut (while lying down (which is also denied), and with his right hand cut off, also denied) the medical evidence showed that the deceased most likely died from the severe slash wound below the skull base which had completely transected the spinal cord and the right carotid artery.

The evidence as adduced clearly did not show that this accused caused this slash wound.

The other wounds were described as potentially fatal, but the learned Doctor who carried out the post mortem, Dr. Carl Susuiarara, explained that how fatal they were was dependent on a number of factors, including what treatment was applied immediately and how soon the victim would have been taken to a clinic or hospital for medical treatment.

Malice aforethought is defined in section 195 of the Penal Code as follows:

“195. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused and it may exist where that act is unpremeditated-

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”

The relevant provision is paragraph (a). The crucial element to be established against this accused is that he had an intention to cause grievous bodily harm to the deceased and that as a result of that act or acts the deceased died.

I have considered the state of the evidence as adduced by prosecution, but have not been satisfied that sufficient evidence had been adduced to prove this vital element, such that a reasonable tribunal could have entered a conviction on a charge of murder. There is no evidence or insufficient evidence to establish the elements of specific intent and causation. Accordingly, I order that he be acquitted of the charge of murder.

However, there is sufficient evidence to require him to make a defence on a lesser charge, and accordingly, I will direct that he be charged with the lesser offence of grievous harm contrary to section 219 of the Penal Code.

The same comments made earlier on regarding the various inconsistencies and contradictions referred to by learned Counsel are matters appropriate for assessment and evaluation at the close of the evidence as a whole.

One particular matter relating to the alleged stab wound caused by Amos on the back neck of the deceased, was highlighted by Defence Counsels in their submissions to the Court that the evidence of Concey on that matter had been conclusively proven wrong or incorrect and therefore had utterly discredited her as a reliable witness. The medical evidence did not identify any stab wounds. However, the learned doctor did point out that it was possible that the slash wound may have obliterated any signs of such stab wounds if it had been directed on the same spot.

Such a suggestion has been described as outlandishly possible, however that does not rule out the real possibility on the other hand that it did occur according to the evidence on oath of Concey. That is a matter which the court can assess at the close of the evidence as a whole.

ORDER OF THE COURT

1. The submission of no case to answer in respect of Damaris Teikagei is dismissed.

2. (i) The submission of no case to answer in respect of Amos Teikagei on the murder charge is upheld and he is accordingly acquitted.

(ii) Directed that accused be charged with offence of Grievous Harm contrary to section 219 of the Penal Code - and required to make a defence on the evidence before this court.

A. R. PALMER
JUDGE