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Regina v Haitalemae [2001] SBHC 94; HC-CRC 210 of 2001 (22 November 2001)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 210 Of 2001

REGINA

-v-

MOSES HAITALEMAE
First Accused

AND

SIMON TOHUBU
Second Accused

AND

EDWIN WATEINAOMAE WAHU
Third Accused

AND

SANIEL AWA
Fourth Accused

Before: Kabui, J.

Date of Hearing: 13^th, 14^th, 15^th, 16^th, 17^th May and 18^th, 19^th, 20^th, 21^st, and 22^nd November 2002

Date of Ruling: 22^nd November 2001

DPP in person for the Crown
Mr I Kako for the 1^st and 4^th Accused
Mr P. Lavery for the 2^nd and 3^rd Accused

RULING

(Kabui, J):. This is a submission of no case to answer by Counsel for the 4^th accused, Mr. Kako. Section 197 of the Criminal Procedure Code Act (Cap. 7) was cited by Counsel as being the basis for that submission. I do not agree. Section 197 cited by Counsel applies to procedure in trials in the Magistrates' Courts. The correct section in the case of High Court trials is section 269 of the Criminal Procedure Code Act cited above. This section states -

..."269. (1) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.

(2) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is evidence that the accused person, or any one or more of several accused persons, committed the offence, shall inform each such accused person of his right to address the court, either personally or by his advocate (if any), to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses in his defence, and in all cases shall require him or his advocate (if any) to state whether it is intended to call any witnesses as to the fact other than the accused person himself. Upon being informed thereof, the judges shall record the same. If such accused person says that he does not mean to give evidence or make an unsworn statement, or to adduce evidence, then the advocate for the prosecution may sum up the case against such accused person. If such accused person says that he means to give evidence or make an unsworn statement, or to adduce evidence, the court shall call upon such accused person to enter upon his defence"...

The difference between section 197 and 269 cited above is one of jurisdiction anything else. Now turning to the evidence in this case. Counsel for the 4^th accused relied on the evidence of PW2 and PW3 as constituting the only piece of evidence against his client. Counsel said that whilst PW2 saw the 4^th accused kick the deceased at point C in the sketch map (Exhibit 2), PW3 did not see the same although PW3 was near enough the deceased to be able to see the same as PW2. Counsel pointed out that PW2 was blood-related to the deceased and that PW2 had said in evidence that he wanted to see those who murdered his cousin to be brought to justice, thus suggesting bias in PW2's evidence, apart from being contradictory to PW3's evidence. The DPP, on the other hand, said the opposite. He said that whilst the 4^th accused took part in the attack on the deceased at point C for the first time, PW2 saw him kick the deceased on the left side of him. He said PW2 also saw the 2^nd accused kick the deceased on the right side of him. He said PW2 saw both the 2nd and 4^th accused kicking the deceased simultaneously at point C. He said there was enough evidence against the 4^th accused to put him on his defence.

PW2's evidence

There is no dispute that PW2 is also from Parasi being the same village of the deceased. He regarded the deceased as his cousin. PW2's attention had been attracted by shouting from the direction of the Fishery Office. He said that he heard there was a fight. So he went towards the base of the wharf. He said he saw the 1^st accused, the 2^nd accused and the 3^rd accused at point B in Exhibit 2. The 1^st accused was holding a knife in a stabbing position. He said he saw the 2^nd and 3^rd accused fighting with the deceased. He said he knew all the accused well. He said he was concentrating his attention on the 1^st accused because he was in possession of a knife. He said he saw the 2^nd and 3^rd accused continuing to fight with the deceased. He said the fighting was moving in the direction of point F in Exhibit 2. He said he then followed those who were fighting. He said he caught up with them at point C. He said he saw the 3^rd accused fell to the ground to the left side and the deceased did likewise to the right side. He said he did not know what made them fall to the ground. He said he was not far from them. He said it was already daylight and there was white sand there also. He said he saw the 2^nd and 4^th accused kick the deceased. He identified both accused in the dock in Court. He said the 2^nd and 4^th accused were brothers. He heard the 2^nd accused said, "em now one falla boy long Parasi, where ologeta any any kaeni." He said the 2^nd accused spoke as they were kicking the deceased on the ground. He said the deceased was on his knees and hands when he was on the ground. He said the 2^nd and 4^th accused kicked the deceased on his ribs and belly with their feet. He said the 2^nd accused kicked the deceased on the right side and the 4^th accused on the left side. He said he saw the kicks but not the sound of the kicks. He said he saw kicks but would not say how many kicks. He said he saw no one else apart from the 2^nd, the 3^rd accused and the deceased. He said he reached the deceased and held him with his hands, saying to the deceased, "Enough now, Rocky, stop fight," or words to that effect. He said he saw the 2^nd and 4^th accused came out. He said he noticed that the deceased was weak, speechless and unsteady. He said he was of the opinion that if he let go of his hands; the deceased would fall back to the ground. So he held the deceased in his hands. He said just then he felt a bang on his back. He said he let go of the deceased and turned around. He saw a piece of timber lying on the ground. He said he saw the deceased on his right when he turned back. He said at that point in time, he saw no one else. He saw the deceased moving backwards from him. Then he saw the 3^rd accused punched the deceased on the face and mouth causing the deceased to fall down backwards on the concrete floor of the Copra Shed at point D in Exhibit 2. He said the 3^rd accused passed him on his right when he punched the deceased. He said the deceased never got up again. He said he saw blood on the deceased's mouth and the back of the head. He said the 4^th accused then called his brothers to leave the scene. He said he and some boys took the deceased and washed his face with water and then took him to the Clinic. He said he walked back to the Petrol Shed and told the 4^th accused and his brothers that they had killed the deceased for something that he did not do. He said the 4^th accused's reply was that they were sorry and that they were wrong.

On being cross-examined by Mr Kako, PW2 maintained that he saw the 2^nd and 4^th accused kicked the deceased. He again repeated that the 2^nd accused kicked the right side of the deceased whilst the 4^th accused did the same on the left side. PW2 never changed his evidence under cross-examination by Counsel, Mr. Kako. PW2 also never budge under cross-examination by Mr. Lavery. He was adamant that he was telling the truth. He admitted that he was the one who gave information to Sergeant Faufaka upon which the details of Exhibit 2 were based.

The Evidence of PW3

PW3, like PW2, was at the wharf when he heard people shouting. He went to see what was happening. He reached the people fighting. He saw the 1^st, 2^nd and 3^rd accused. The 1^st accused was holding a knife and acting aggressively. The 1^st accused was persuaded to put away his knife. He said he saw the deceased moving towards point F being the Petrol Shed. He said he saw the 2^nd accused kick the deceased with his right leg but the deceased did not fall. He said the kick landed on the left side of the deceased's hip. He said he pulled the 2^nd accused. He said the deceased kept on moving towards point C in Exhibit 2. He said the 3^rd accused followed the deceased and kicked the deceased's buttock with his right leg. He said the 3^rd accused was wearing black safety boots. He said the deceased fell at point C. He said the 2^nd and 3^rd accused kicked the deceased. He said the accused kicked the deceased on the ribs. He said the 3^rd accused did so on the deceased's right side. He said he knew both the 2^nd and 3^rd accused. He said he pulled the 2^nd accused by his shirt and also pushed the 3^rd accused. He said the deceased stood up and walked towards the Copra Shed. He said the 3^rd accused kicked the deceased again with his right leg but he did not fall. On being cross-examined by Mr. Kako, PW3 said he met the 1^st, 2^nd and 3^rd accused at point B in Exhibit 2. He said, he saw no one else besides the 2^nd, the 3^rd fighting the deceased. He said he never saw the 4^th accused at the fight. He said the deceased fell down at point C and later at point D in Exhibit 2. He said he saw the 4^th accused and the 1^st accused standing and talking. He said the 4^th accused was telling the 1^st accused to go away. On being cross-examined by Mr. Lavery, PW3 confirmed that daylight was breaking. He said there was grass and gravel at point C in Exhibit 2. He said he told the Court what he saw. He said he saw the 2^nd accused kick the deceased between points B and C in Exhibit 2. At that time the 2^nd accused was alone with the deceased. He said the deceased did not fall that time. He said the 2^nd accused did not wear boots. He said he saw the deceased stood up at point C in Exhibit 2.

The Law

The law was explained in R. v. Gallbraith [1981] 2 A.E.L.R. 1060 by Lord Lane, CJ at page 1062 in the following paragraph -

"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown's evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown's evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

This will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge".

Whilst the principles are clear as expounded by Lord Lane, their application will largely depend upon the facts of each case. There are of course borderline cases as indicated by Lord Lane, which requires the exercise of the Court's discretion. Of course, in this jurisdiction, I am both the Judge of facts as well as of law. (See R. v. Lutu 1985/86 S.I.L.R. 249). At page 251, Ward, C.J. said, -

"Where, however, there is some evidence but it is so little or unconvincing 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".

I have read Muria, C.J.'s Judgment in R. v. Maenadi, Watson, Smith Pitapio, Youngston Watson, and Saro Norman, Criminal Case No. 16 of 1997 but I think the Judge's remarks were about section 197 of the Criminal Procedure Code, the equivalent of section 196 in the old Criminal Procedure Code applied by Ward, CJ in R. Lutu cited above. I do not think it is relevant to this case in view of my saying that section 269 is the correct section to apply in criminal trials conducted by the High Court. I have also read the ruling by Palmer, J. in R. v. Philip Tahea and Others, Criminal Case No. 14 of 1995. At page 6 of the ruling was the application of the principles to the facts of that case. His Lordship there, said, -

"In cross-examination a number of inconsistencies were raised between the statement of this witness as made to the Police and 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 has 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 asses 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".

Assessment of the evidence

As a general remark, the evidence of PW2 and PW3 shows that the fight between the deceased and all the accused was a fast moving one. It started at point A through to B and then to C and D. It was sort of dark but not very dark that one could hardly see anything. There were people around who had been attracted by the fight. PW2 and PW3 were both eyewitnesses to some parts of the fight. They both followed the fight to point C. They both agreed that at point C, daylight was breaking and one could see generally. PW2 said there was sand there whilst PW3 said there was gravel. I think whether it was sand or gravel, it must have been white in colour providing a white background against the breaking of the day.

PW2 was related to the deceased and knew the other accused as well. He was obviously concerned with the safety of the deceased and the conduct of the 1^st, 2^nd and 3^rd accused as they were the attackers as from point B onwards. He followed them to point C. There he saw the 2^nd and 4^th accused kicked the deceased whilst on the ground. He saw no one else. He said he was about a fathom away from them. He was going towards them when he saw this and eventually reached the deceased and held him and spoke to him. This was after the deceased had been kicked by the 2^nd and 4^th accused. He saw the 2^nd and 4^th accused came out from where they had been kicking the deceased. The 3^rd accused must have been nearby for he passed PW2 and punched the deceased on his face causing the deceased to fall backwards on the concrete floor and never to get up again. The 4^th accused later admitted to PW2 that they wrong in killing the deceased. It would appear that PW3 arrived at point C when the 2^nd and 3^rd accused were kicking the deceased. He was about 8 feet away. He saw the deceased fell at point C but he did not see PW2 nor the 4th accused. PW2 said he did not see PW3 either at point C. PW3 must have got there a little late after PW2. PW3 saw the deceased fell at point C but not the 3^rd accused when he fell also at point C as seen by PW2. He did not see PW2 because PW2 must have moved away already from where he had been holding the deceased. Whilst PW3 said he had tried to pull the 2^nd accused and pushed the 3^rd accused away from the deceased, PW2 did see this. It must be remembered that point C is an area and not a specific spot. PW2 and PW3 both must have seen different parts of the fight at different moments from different positions at point C and are not necessarily telling lies to the Court. PW2's evidence is detailed in nature. I do not think PW2 was mistaken as to the identity of the 2^nd and 3^rd accused for he went to them afterwards and told them that they had killed the deceased for the wrong reason to which the 4^th accused said they were sorry and were wrong. I do not think that I can accede to the submission of no case to answer at this stage of the trial in favour of the 4^th accused. I am unable to say, to use the words of Ward, C.J. in R. v. Lutu cited above, ... "there is some evidence but it is so little or unconvincing that it is insufficient even if uncontradicted by the defence to make a conviction possible"... The evidence against the 4^th accused cannot be said to be little or unconvincing so as to be insufficient even if unchallenged to make a conviction possible. The 4^th accused will be put to his defence. I accordingly reject the submission of no case to answer.

F. O. Kabui
Judge