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Regina v Salopuka [2017] SBHC 108; HCSI-CRC 104 of 2013 (6 June 2017)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 104 of 2013

REGINA

-V-

Nicholas Salopuka and Luke Yen

(PALMER CJ.)

Hearing: 22-24 August, 29-30 August, 5^th October 2016.

Judgement: 6^th June 2017

For the Crown: Mrs. M. Suifa’asia and Ishmael Kekou
For Defence: M. Pitakaka and Ms. M. Tahu

Palmer CJ.

1. The two defendants have been charged each with separate counts of grievous harm contrary to section 224(1) (a) of the Penal Code as read with section 21(a) of the Penal Code. The brief particulars provide that on the 3^rd November 2012, with intent to do grievous harm, both defendants did punch and kick Jeffrey Mekab (“the victim”) on the face and body several times until he fell unconscious.
   

The Prosecution Case.

2. The prosecution case is based primarily on evidence of identification of the two defendants at the crime scene and being directly implicated as being involved in assaulting the victim that night. Prosecution alleges they were seen at the crime scene attacking the victim.
   

The Defence Case.

3. The defence submit that Crown had failed to establish to the requisite standard that both defendants were involved in attacking the victim by punching and kicking him on the face and body several times until he fell unconscious. They say there was a crowd that night and there were many who were involved in throwing stones, punching and kicking the victim, including hitting him with sticks which could equally have been responsible for the injuries received by him.
   

The issues in the case.

4. The primary issue is one of identification, whether both had been adequately identified in the attack against the victim, apart from the concession by the defendant, Luke Yen (“Luke”), in which he admitted punching the victim on the chest three times.
   

Facts not in dispute.

5. A total of five witnesses were called by prosecution to testify against the Defendants. It is not in dispute that on the night of the 3^rd November 2012 at about 2:00 – 2:30 am in the early hours of the morning, the victim decided to go to the house of someone he described as Doogle’s father, at Koltoha village at Kakabona, and follow up on what he described as compensation demands, that had been earlier requested on behalf of his friend’s family for some earlier incident that had occurred. It is not disputed that the victim was already heavily intoxicated at the said time as well as carrying a bottle of beer in his hand.
   
6. On arrival at the house, he spoke with a man later identified as Ruddal, who was Doogle’s father. He then started shouting and broke the bottle of beer he had in his hand on the ground. Ruddal’s wife then came out and raised the alarm with their neighbours who came out and started attacking the victim, throwing stones at him, throwing punches including the use of a stick and forcing him to withdraw and make a hasty retreat and escape. He ran through some swampy ground, onto and along the main road in a westerly direction and then down towards the beach at Kakabona and waded out into the sea in an attempt to escape his pursuers but obviously was unsuccessful for a hue and a cry had been raised and almost the whole villagers around the vicinity had come out to give chase.
   
7. It is not in dispute the two defendants had also joined the chase with the rest of the villagers down to the beach.
   
8. The defendant, Luke testified that when he arrived at the beach he noticed that the victim was being stoned by the crowd at the beach. He waded out into the sea and helped to pull the victim out of the water onto the beach when he noticed that the victim appeared weak and was struggling in the water. He told the court there were many people who crowded around him on the beach and were attacking him, including punching, kicking him and hitting with a stick.
   

The Medical Report.

9. Dr. Alex Munamua (“the Doctor”) who provided the medical report testified there were injuries to the victim’s face and head, including a broken tooth and some teeth that had been chipped off. He also described the face of the victim as heavily swollen with sore joints on the knees and tenderness on the back.
   
10. The victim was semi-conscious when he was brought in to the hospital.
    
11. It is also not in dispute that the victim had been attacked with a stick when he was outside of Ruddol’s house and had stones thrown at him, which would have been consistent with the injuries described on his face and head.
    
12. When he made a hasty retreat, it appears that he may have also fallen over and hurt himself in the process.
    
13. At the seaside stones were also thrown at him. On the beach he was set upon and attacked, including being hit with a stick, punched and kicked. In the ensuing melee he was also kicked in the face and lost a tooth. It appears also that some of his teeth had chipped off during the attack.
    

The issues in the case.

14. The issue for determination is whether the two defendants were involved and whether prosecution had proved beyond reasonable doubt that they were involved in attacking the victim and causing him grievous bodily harm. This primarily entails an assessment of the evidence on identification of the two defendants.
    

The evidence of prosecution.

15. The main evidence on identification came from Christopher Tevata (Tevata”). He testified he was sitting at a leaf hut outside Kauvare Club at Kakabona having some beers when the incident occurred late at night at about half past two in the morning. He told the court he saw and recognised one of the defendants when he chased after the victim along the road westwards and then down towards the beach.
    
16. When he went to investigate at the beach he saw and identified the two defendants. He told the court he recognised them as security men who worked at Kauvare night club. His identification of the two defendants in court in the dock has not been disputed.
    
17. He is the only one who gave direct evidence implicating both defendants in the attack on the victim both in the water and on the beach, which if accepted by the court are clear evidence of acts intended to cause grievous harm to the victim. Those acts included seeking to drown the victim multiple times whilst in the water, punching him in the face and body and kicking. He also identified Nicholas Salopuka (“Nicholas”) as the one who kicked the victim in the face with his boots and which prosecution alleges resulted in the victim losing a tooth.
    
18. The victim confirmed in his evidence that someone had kicked him in the mouth resulting in the loss of a tooth. He also had some of his teeth chipped off as a result of the attack.
    
19. The victim however, was unable to identify his attackers that night as he was drunk and had been beaten severely and therefore was semi-conscious. At one point of time he was unconscious. As well, it is not in dispute that it was still dark (night time) at that time, and so he was unable to identify his attackers. He could only give general descriptions of who attacked him and how it occurred.
    

The defence evidence.

20. The defence called a number of witnesses in support of their case. The first defendant Luke Yen (“Luke”) gave sworn evidence in court. He told the court that after being woken up by the shouting and noise, he followed the crowd down to the seaside. He said there were many people there already at the beach when he arrived. He saw the victim with some boys already out at sea. He says that he also saw people throwing stones at him in the sea and forcing him to return to shore.
    
21. He says he noticed that the victim already had injuries on his face and was bleeding when he was pulled up out of the water onto the beach.
    
22. He told the court that as soon as the victim was pulled ashore the crowd were waiting for him and continued to attack him, punching and kicking him until the old man Robinson Salopuka (“Robinson”), his uncle, stepped in with his help to prevent any further beating.
    
23. He told the court after his uncle Robinson identified the victim as a relative, they both prevented the crowd from attacking him further. With the assistance of two other sisters, Densia and Maria and his uncle, they carried him to another spot, washed him with water, attended to his injuries on his face and head before assisting him further to the road to get a taxi to transport him to the National Referral Hospital.
    
24. In cross examination he admitted punching the victim three times but denied pushing the head of the victim under water several times and or punching him in the face. He told the court he waded out into the water to help pull the victim out as he had noticed that he was becoming weak and needed help.
    
25. He denied seeing the prosecution witness, Tevata at that time or helping them.
    
26. Another defence witness, Rosalie Pese (“Pese”) was selling her market at the roadside (main road), that night when she heard shouting coming from Rudol’s house. She told the court she had a lamp in her market hut and saw the victim running towards her direction, falling down beside her hut, before getting up and running along the road (westwards) towards an “alite tree”. She told the court the man appeared drunk from the way or manner he was running; that is, swaying from side to side and not running normally in a straight line. She saw him falling down again at the bottom of an “alite tree” before getting up again and running down towards the seaside and disappearing from her view.
    
27. The evidence of the old man Robinson is pertinent for he implicates the prosecution witness Tevata, as one of the persons who also attacked the victim.
28. He told the court he was woken up by the sound of her daughter shouting for help. By the time he got up, the crowd had chased the victim to the seaside. He followed them to the beach and saw the crowd gathering around the victim on the beach. They were attacking him, kicking, punching and even throwing stones at him.
    
29. He told the court that he saw the witness, Tevata kicking and punching the victim. He said he was able to see this because he had his torch turned onto the victim and could see everything clearly when Tevata kicked and punched him. He noticed too that Tevata’s knuckles were covered with blood. He stated he intervened to stop further attacks on the victim when he found out that he was a relative from Temotu.
    
30. Another witness who saw the attack on the victim by Tevata was Maria Tuza (“Maria”). She also told the court that when she got to the beach and made her way through the crowd, she also saw Tevata punching the victim and saw him pulling out the victim’s shoe from his feet.
    
31. These witnesses, Robinson, Maria, Luke Yen (“Luke”) and Densia Salopuka (“Densia”) told the court that afterwards they assisted to carry the victim to a safe place where they washed his body, especially his head, applied some “custom medicine” (leaves from a plant) before getting a taxi for him and sending him off to the Hospital.
    

Findings of the Court.

32. For the following reasons I find that Crown had failed to prove beyond reasonable doubt that Luke Yen and Nicholas Salopuka were the two who caused the grievous harm on the victim.
    
33. First, the only witness relied on by the Crown, Tevata, has been adequately discredited by the defence witnesses and during cross examination, which exposed some glaring discrepancies. For instance, in his evidence in chief and during cross examination, he insisted he was able to see the raucous on the road when the victim was chased towards the seaside. He told the court that there was sufficient lighting on the roadside that enabled him to see and recognise one of the defendants (Luke) as he chased after the victim and followed the crowd to the beach. He was heavily cross examined on this particular issue whether there was sufficient lighting and he insisted that there was sufficient lighting around at that time to enable him to see what was going on along the road.
    
34. During the locus in quo however, it was obvious, that it would have been impossible to see anyone or have a clear view of the road, from where he was supposed to be sitting (at the leaf hut) and drinking his beer, let alone see anyone running along the road. It would have been impossible to see even the crowd running along the road because he would not have been able to see that far.
    
35. Secondly, it is pertinent to note, that he was clearly under the influence of alcohol that night, which would have affected his mental faculties to some extent. In contrast all defence witnesses who came to give evidence of their observations were sober and not in any way affected by any drink or drugs. Their observations that night therefore would have been less likely to be compromised than that of the Crown witness Tevata. This in my view needs to be borne in mind when assessing the credibility and reliability of Tevata’s account as contrasted with that of the defence witnesses.
    
36. Thirdly, it is pertinent to keep in mind that the incident occurred at night, in the early hours of the morning and would still have been dark. Visibility therefore would have been in issue. In contrast, defence witnesses pointed out in evidence that even though it was dark they were still able to see what was happening through the use of torches that some of them were using that night. The witness Tevata on the other hand relied on natural lighting around to support his observations. I prefer the account of the defence witnesses as being more credible and reliable and in terms of accuracy.
    
37. The defence witness, Robinson was one of those who testified that he had a torch which he used that night and was able to see and recognise Tevata. His evidence has been supported by the evidence of the witness Maria, who also confirmed witnessing the attack by that witness on the victim. Both their evidence had not been contradicted to any significant extent.
    
38. While bearing in mind, their evidence may be biased, or tainted, in favour of the defendants by virtue of their blood relationship and ties, I am unable to completely discount their evidence by virtue of their integrity as honest and frank witnesses. When pitched against the evidence of that key Crown witness, I am unable to be completely satisfied that Crown had discharged the onus of proof beyond reasonable doubt against those two defendants.
    
39. Accordingly, it is my considered view that the doubt raised, is sufficient to find on reasonable grounds that Crown had not discharged the onus on its part and that the benefit of the doubt raised should go in their favour.
    
40. This raises the issue of the admission on the part of the defendant Luke in which he conceded punching the victim in the chest area. This technically would amount to a misdemeanour, the offence of common assault and raises the question whether the court should consider a conviction for that lesser offence.
    
41. Learned counsel for the Crown, Ms. Suifa’asia submits that the medical report did not support any evidence of any bruising or injury that would be consistent with any punch on the chest and therefore the defendant could not be telling the truth. However, it is equally possible that the punches may not have been strong enough, or of sufficient force to cause any significant bruising on the chest of the victim and which would account for the lack of any injuries or bruising on the chest.
    
42. It is important to note as well that while an admission may have been made in this instance, it does not necessarily follow that he was the one who may have inflicted the serious injuries in the face and head of the victim. All it proves is an admission of a minor common assault for that is all the admission can amount to.
    
43. It is my considered view that prosecution had not established beyond reasonable doubt that the punches on the chest of the victim were of sufficient force to cause any significant injury or harm on the victim and so while technically an offence had been committed, when this is considered in the light of the grievous injuries incurred by the victim, the fact that he had already been subjected to being stoned, punched, kicked and hit with a stick apart from any injuries which he may have sustained as a result of running and falling down on numerous occasions, it is my considered view that no conviction be entered in this instance.
    
44. I am fortified in this by the fact that the uncontroverted evidence adduced is that this defendant was also one of those who had assisted the others to carry the victim to the roadside and assist in putting him in the boot of the taxi to be transported to the National Referral Hospital. As well, it is pertinent to note the victim must partly shoulder some responsibility for his most inappropriate behaviour and conduct that night. This is definitely not the way to approach anyone for compensation, when under the influence of alcohol and at such a time at night when everyone is already asleep.
    

The evidence against Nicholas Salopuka.

45. The only direct evidence against him also came from the same witness, Tevata. He told the court he saw him also bashing and punching the victim in the water with Luke and also on the beach. He also told the court that after he had tried to assist the victim on the beach, he saw the same defendant returning and kicking the victim three times while he was still on the ground. Prosecution alleges that it was as a result of one of those kicks which resulted in the loss of a tooth and other teeth being chipped off as well.
    
46. The defence case however denies all these, stating that there were so many others who were involved in hitting, punching and assaulting the victim and it was difficult to identify anyone. They also pointed out that it was still quite dark at that time and would have been quite difficult as well to identify anyone.
    
47. All defence witnesses denied seeing the second defendant, Nicholas Salopuka (“Nicholas”) at the scene of the crime. Nearly all of them were right in the middle and thick of things and all denied he was there.
    
48. When their evidence which I find had not been sufficiently discredited is contrasted with the only evidence of the Crown and weighed against the possibilities of being mistaken or confused, for it was still dark and visibility would still have been a real issue at that time, coupled with the fact, the witness Tevata was inebriated, and therefore more likely than not to have been affected somewhat in terms of his capacity to maintain focus and objectivity in his observations, and thirdly his credibility had been compromised, any doubt raised thereby must go in favour of the defence. The ultimate effect of all these is that the Crown had failed to discharge its onus of proof beyond reasonable doubt and therefore a finding of not guilty is the only appropriate order to be made in the circumstances of this case.
    

Orders of the Court:

(i) Enter a finding of not guilty in favour of both defendants.
(ii) Direct an order of acquittal in their favour herewith.

The Court.