HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 202 of 2005

ALFRED SINGAKIKI

-v-

REGINA

Date of Hearing: 2 May 2005
Date of Judgment: 10 May 2005

P. Lawrence of Public Solicitor’s for the appellant
R. Talasasa of DPP for the respondent 

Appeal

Reasons for Decision

Brown PJ.: This appeal against conviction and sentence of one Alfred Singakiki relates to one count of resisting a police officer in the execution of his duty contrary to s.247 (b) of the Penal Code. He was convicted by the Central Magistrates Court on the 22nd March 2005 and sentenced to 4 months imprisonment.

The offence was committed when two arresting plain clothes police officers on the 1st February 2005, failed to affect an arrest and the appellant escaped.

The appeal grounds are:

1. The learned Magistrate erred in not giving reasons as to why he was able to reject the evidence of the Appellant beyond reasonable doubt;

2. The learned Magistrate did not properly consider the evidence of the Appellant and properly consider the prosecution evidence in light of it;

3. The learned Magistrate erred in not giving reasons as to why he was able to accept the evidence of the prosecution witnesses on the issue of whether the accused was told he was under arrest beyond reasonable doubt despite the inconsistencies and concessions that emerged in cross-examination and the evidence given by the accused;

4. The learned Magistrate did not properly consider the evidence that arose in the cross-examination of the prosecution witnesses;

5. The learned Magistrate did not give adequate reasons;

6. The learned Magistrate erred in holding that self induced intoxication could not be taken into account in considering whether the Appellant had intended to resist police in the execution of their duty;

7. The learned Magistrate erred in finding that the prosecution had proven beyond reasonable doubt that the arrest of the Appellant was lawful;

8. The conviction was against the weight of the evidence and the learned Magistrate erred in not holding that there was reasonable doubt as to the guilt of the Appellant;

I must say the grounds caused me some consternation when one realizes the relatively small ambit of the matters which go to make up the issues necessary to be decided on a charge of this nature. As well, the trial at the lower court involved a no case submission before the defence was called upon for its case, when the accused was called. The Magistrates’ written reasons on the findings and judgment with his written ruling on the no case submission must be read together.

For if the accused had been put to his defence in absence of any cogent evidence, on the issues at stake, then that would also amount to error on the magistrates ‘part. The appeal does not treat the ruling as erroneous, rather criticizing the Magistrate for failing to give the accused the benefit of a doubt that arose on the evidence. For the accused said the two police officers were not in uniform and he thought them "ordinary people" and consequently resisted their obvious intention to detain him.

The Magistrate said in his ruling on the "no case" (while pointing to the use of the phrase "sufficiently made out" in s. 197 of the Criminal Procedure Code) that (at 14),

"On the evidence of the two prosecution witnesses there is evidence the defendant struggled to avoid being arrested" and "In relation to the identity of the officers, there is evidence, especially PW2, that identified himself as a police officer, where he invited the defendant to the police station but he resisted."

The Magistrate was satisfied, then and eluded to the particular issues in dispute, whether they identified themselves as police officers, and the fact they were attempting to affect an arrest, in his ruling. There does not appear error, and then at that point in time in the trial for there was evidence sufficiently made in the Magistrates’ mind to seek to put the accused to his defence.

Was there objectively such evidence?

The Magistrate spoke, (23) recounting evidence of PW2 which was given at 6, 7 where Police Constable Walter Tilivulu said:

"We saw a taxi drive in and a boy ran in and saw Alfred come out and went inside dark glass taxi. We recognized him and walked across to at front seat where suspect sat down. I knocked for him to open the door but locked. Taxi driver lowered glass and said we are Police and to assist us, take wanted man to Central Police Station. While talking with the driver, the suspect opened the door to escape so I went to him and said to arrest him. He said that he did not want to go to Central Police Station. At same time he struggled and swung his hand. I grabbed one hand, the other Police officer the other hand. I grabbed the right hand. He hit me on the chest with right hand. I managed to grab both hands and struggled and bit my left hand. I swing him and fell down. I grabbed shirt but he removed shirt and ran away. Twice removed my hand. Injuries on left - blood and teeth marks".

Again, earlier in his judgment the Magistrate referred to the evidence of PW1. He also paraphrased that evidence PW1 was Senior Constable Rosslyn Aitorea. He recounted the events at the taxi. “He went to old Central Provincial area and approached Alfred Singakiki. We arrested him but he resisted. He bit our hands. …before I grappled I said, you are under arrest for wrecking @ New Generation store. He resisted when he heard about arrest. He was strong and big body, we could not hold him, tied and so escaped. About 10-15 minutes struggled.

On the record taken by the magistrate, PW2 said, "We recognized him and walked across to at front seat where suspect sat down. I knocked for him to open door, but locked. Taxi driver lowered glass and said, we are police, and to assist us, wanted in to Central Police Station. While talking with the driver, suspect opened door to escape so I went to him and said to arrest him. He said that he did not want to go to the Central Police Station. At the same time he swung his hand. I grabbed one hand and the other police officer the other hand…."

There is, then evidence of those matters.

Nature of appeal.

This jurisdiction does permit of an appeal on a matter of fact as well in a matter of law but the hearing is not de nouveau (de novo), (Criminal Procedure Code ss. 283(3), 293, 294) although the High Court may if it thinks additional evidence is necessary either take such evidence itself or direct it to be taken by the Magistrates Court.

It must be remembered, (for the Magistrate is subject to the same requirement as this Court) on burden of proof that the prosecution must satisfy the evidential burden throughout, and the burden is beyond reasonable doubt.

Mr. Lawrence, in his argument, criticized the convicting Magistrate for shifting the evidentiary burden to the accused for that the Magistrate in the face of reasonable explanation for his behaviour on the two issues of importance, failed to fairly weight the evidence of the accused and made findings of fact impliedly based on the failure of the accused to prove his case.

Mr. Lawrence said the Magistrate misdirected himself for in his reasons he stated:

"… what was being disputed is that the defendant said he did not know that they were police officers" a statement which may suggest the Magistrate considered the obligation rested with the accused when in law, the obligation remained with the prosecution to satisfy the court, beyond doubt, that the fact was made known and further why since raised on the evidence by the accused that his explanation (that he was not told) was not accepted.

There was no issue with the reasonable grounds held by the respective police officers as to the lawfulness of the arrest, for the officers held a belief about the accused participation in a break-in of the New Generation store."

These two issues in dispute were:

1. the appellant had an honest belief they were not police officers

2. the accused was never told that he was under arrest

For his actions in resisting and escaping from the two officers, if either of the two issues were doubtful, would be excusable by law; self defence or an honest and reasonable mistake of fact.

Before the "no case" submission, in cross examination Mr. Lawrence asked whether both were in plain clothes and that was conceded by PW1. He also asked at 5:

Q. You didn’t say why arrested

A. Frustrated for struggling so not forget to put in statement

At 6:

Q. Suggest that you never told Alfred (he) was under arrest

A. No I told him under arrest

In cross examination of PW2 Mr. Lawrence asked at 8:

"Q. said under arrest?

A. Yes

Q. When

A. He came out of car

Q. What words?

A. Arrest - go to Central Police Station

Q. Drunk?

A. Yes

Q. Sure you heard those words?

A. Yes

Q. You never told him under arrest?

A. I told him that"

The cross examination of PW2 left the matter of the "police officers" (stated earlier when the window was down) uncontested and the cross examining counsel was stuck with the constables confirmation that he had arrested him (by words and actions in twice taking his wrist).

There is then, evidence of those pertinent issues, evidence on which the Magistrate was entitled to act, at the time of the "no case" submission.

Mr. Lawrence called his client the accused.

Then followed this truncated record of the accused’s statement in chief given the Magistrate.

No uniform - plain clothes. Yes 2 witnesses last week. They did not give chance. Both sat on me. I was injured. I can’t breathe properly and struggled to make way out. When I freed I went around house again. I thought ordinary people so come back to fight them. I thought not Police officer even when they are Police officers. I didn’t recognize these two people. I did not meet them before. If I know Police officers I will not do anything.

The accused clearly raises the issue of the identity of the two constables as Police officers. He says he did not hear the assertion he was under arrest.

In cross examination, the accused was asked at 17:

Q. You recognize police officers?

A. Yes, if in uniform

Q. You know who came to side of taxi?

A. Yes

Q. Why close door?

A. I felt I have enemy

Q. Police officer say under arrest?

A. I was drunk so I did not know

Q. I put that you knew two Police officers?

A. No

Q. Because you recognized Police officers you didn’t open the door?

A. No

Q. When opened the door Police officer said under arrest?

A. No I didn’t hear

Mr. Lawrence says, on the face of the Magistrates record of judgment that he failed to make specific findings of fact on these issues. As a correlative the Magistrate failed to make a finding about what was said by the police at the crucial time. In the absence of such a finding the Magistrate appears to have proceeded on a presumption of regularity over the arrest when that presumption was not open to him in the light of the accused’s evidence. In that respect, the Magistrate has misdirected himself.

Mr. Talasasa appeared for the Crown. He said the presiding officer had to decide who to believe. He directed me to the elements of the offence to be proved and at 22 of the record, the Magistrate’s reasoning process. Mr. Talasasa took me through the evidence (which to a large extent is reproduced above) especially at 17 where the accused admitted he was drunk, he did not hear so the natural assumption was that the accused did not know he was under arrest.

So it was not open, Mr. Talasasa says, to go to the Magistrates’ Court asserting what the police officers did or did not say. The evidence of the fact they were police officers and the fact of the arrest was at 2, 7, 8 & 9 of the record.

I must say the presiding Magistrate does have the responsibility in deciding who to believe. This appeal court should be very chary and reluctant in reaching a different view of the facts recounted for the Magistrate in the first instance may assess the veracity of the witness and what weight, intuitively, that may be given their stories. In this case, there is a clear thread running through the Magistrates reasons that he disbelieved the accused.

But the Magistrate needs to say what he believes and why. He has to some extent for at the time of his ruling on the "no case", he clearly accepted the prosecution evidence (set out above) on these two issues.

Here in his later judgment he has reiterated authorities which espouse the accepted law in particular circumstances but he has not directly found facts which bring this case within the circumstances of the authorities. He has not, as Mr. Lawrence says, found the case proven by making express finding of fact with reference to the evidence of the witnesses.

By his specific reference to the particular witnesses in his reasons on the "no case" submission (for the statements were directly on the issues) I accept the magistrate must be seen to have accepted this short statement as facts; in his judgment, the material part of the prosecution evidence and the accused’s story (including where he spoke of his drunkenness), the Magistrate may be seen to have accepted that part of the prosecution evidence recounted and discounted the defence argument in court, (that the accused was not told these things) relying on the accused’s own assertion he was drunk and impliedly may not have remembered. He may not have been aware, for he was drunk, but it was open to the Magistrate to find, as he obviously did that the accused was told that these two were police officers and that the accused was under arrest.

So while the Magistrate may not have expressly made findings of fact and recorded them in his reasons, the manner of his record does sufficiently show what evidence he accepted as fact. Of course, Mr. Lawrence rightly says that "failure to give reasons" is an error of law. While the manner in which he has couched his reasons may suggest the Magistrate has dealt with the accused’s story as one shifting the evidentiary burden of proof to the accused, his reference in his reasons on the "no case" must be read with his judgment, and does furnish me with the assurance the Magistrate had identified facts sufficient to satisfy him beyond doubt.

There may be criticism of the Magistrate’s semantic expression. Exercising my powers to be found in s.293 of the Criminal Procedure Code notwithstanding, on a strict view of the Magistrate’s couched reasons, while they may not accord with a nicety of expression, he cannot be said to have erred in his findings on the evidence. This simple case reflected in the magistrates’ reasons and judgment, in my view adequate reasons for this court to see the material facts on which the magistrate sought to rely. The failure to re-write the evidence into his reasons does not detract from the value of his judgment when his reference to particular parts of the witnesses’ evidence enables me to understand his reasoning. His direct reference to the accused’s sobriety can be understood to relate to the magistrates view of the recollection of the accused about the issues in question.

Appeal Grounds:

1. Not made out for the Magistrate stated the appellant in cross examination conceded he was drunk and may not have heard the statements of the police about that or the arrest.

2. Not made out for there was evidence of both material issues in the prosecution case.

3. Not made out for the magistrate related his reasons to the issue pleaded by the accused, his drunkenness and consequently the possibility he was unaware of the police warnings.

4. Not made out for the magistrate’s reasons addressed the issues on the small compass of evidence elicited from the 2 police witnesses and their cross examination.

5. That ground has merit in so far as the Magistrate’s reasons did suggest on one reading, a misstatement of the evidentiary burden on the prosecution but in the light of absence contradictory defence following the accused’s concession he was drunk, a concession relied upon by the Magistrate, no miscarriage of justice has occurred.

6. Not made out, for the issue was the belief in the accused’s recollection in the face of his drunkenness.

7. Not made out for on the evidence the Magistrate was entitled to make a finding that the arrest of the appellant was lawful.

8. Not made out for the preponderance of evidence lead to the Magistrates ultimate conclusion as to guilt.

I dismiss the appeal for I am satisfied no substantial miscarriage of justice, has occurred. The evidence of the two police officers does illustrate facts which if believed, would satisfy the elements of the offence. Further the evidence given by the accused, thinking them (the police constables)"ordinary people", when read with his admission under cross examination (about the words spoken of his arrest) that "I was drunk, so I did not know" does not, in my view discredit the prosecution evidence to the effect they made known that they were Police officers and that they were arresting the accused.

That prosecution evidence was obviously believed by the Magistrate, and since it had not been discredited, I am satisfied the verdict may stand.

The appeal against conviction is dismissed.

Appeal against sentence

The practice has been to make allowance for periods spend in custody leading up to conviction and sentence.

There is discretion in a sentencing court, a discretion recognized by s.282 of the Criminal Code;

"s.282 - The court may before passing sentence, receive such evidence as it thinks fit, in order to inform itself as to the proper sentence to be passed".

A considerable body of law has arisen in regard to matters proper to be taken into consideration over sentence. Normally the time spent in custody awaiting trial, (since incarceration) would be taken into account on sentence. Where, however, the accused while in remand has behaved badly, that fact may for instance be a matter disenabling the exercise of discretion in the prisoner’s favour. There may be other reasons for refusing discretion.

In this case however, I take into account the period of one month 20 days in custody on remand and order that it be included as part of the 4 months awarded.

Appeal on sentence dismissed.

Sentence of 4 months to take account and include period of one month 20 days in custody awaiting trial.

THE COURT