Tobo v Commissioner of Police [1993] SBCA 6; CA-CRAC 1 of 1993 (14 September 1993)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Appeal No. 1 of 1993

BETWEEN:

RACHEL TOBO
Appellant

AND:

COMMISSIONER OF POLICE
Respondent

Connolly P.
Williams J .A.
Palmer J.

Delivered the 14th day of September 1993 by Palmer J.

JUDGMENT - WILLIAMS J .A.

The appellant was charged in the Magistrates Court for the Western Province of Solomon Islands with the offence that on 16th May 1992 she “took part in a fight in a public place”. That is the offence provided for in section 81 of the Penal Code, which is in the following terms:-

“Any person who takes part in a fight in a public place shall be guilty of a misdemeanour, and shall be liable to imprisonment for one year.”

That offence seems to be commonly referred to as “affray”, undoubtedly because that word is used in the marginal note to section 81. However section 6(3) of the Interpretation and General Provisions act 1978 provides that a marginal note does not form part of the Act, and in consequence that use of the term affray cannot affect the definition of the offence.

Because of that it is clear that the offence with which the court is here concerned is created and defined by section 81, and the elements of it are thereby established. It is an offence which is clearly distinguishable from common law affray because the element of “terror” is omitted (cf Archbold, 39th Edition, paras 3591-4) and the common law authorities are of little or no relevance.

The record in the Magistrates Court discloses that the Magistrate explained the offence to the appellant and that she understood it. Undoubtedly he did that in order to comply with section 10(2)(b) of the Constitution. But the record does not disclose what was said to be the meaning of “took part in a fight”.

When asked to speak in mitigation the appellant, who was unrepresented, is recorded as saying:-

“I did not intend for fight. I went there to ask for my clothes from one of my niece. Dl then saw me and attacked me.”

D1 was the other party to the fight and co-accused with the appellant.

It should also be noted that the appellant was further charged with criminal trespass, entering into the compound of the dwelling of another with intent to annoy the occupant, an offence against section 182(1) of the Penal Code.

When the mitigation statement recorded above was made the Magistrate interpreted it as not admitting a charge of criminal trespass and in consequence he directed that a plea of not guilty be entered to that charge. In so acting he must have considered that in the circumstances there was arguably substance in the statement made by the appellant.

It follows that he should have considered the offence of affray in the light of the appellant’s statements that she had no intention to get involved in a fight and was attacked by the other defendant.

The question is whether such considerations are relevant on such a charge and whether they may afford a defence. On appeal Muria A.C.J. considered that intention to fight was irrelevant. He said:-

“The offence of affray is committed when a person takes part in a fight in a public place, whether he intends to fight or not is irrelevant. Here, the appellant agreed she took part in a fight in a public place. Whether or not she intended to fight is not to the point. She took part and the offence, thus, had been committed.”

It is true that intention is not an element of the offence in question and in that sense the learned Acting Chief Justice was correct in saying that whether the person intend to fight or not is irrelevant. But, in my view, the analysis, made by the learned Acting Chief Justice overlooks the effect of section 17 of the Penal Code. So far as is relevant that provides that criminal responsibility for the use of force in the defence of person shall be determined according to the principles of English common law. Under the common law it is lawful to use such force as is reasonably necessary in order to defend one’s person against attack. Acting in a way which is lawful as constituting reasonable self - defence of one’s person could not at the same time constitute the offence of taking part in a fight in a public place. As is amply demonstrated by the argument of counsel for the appellant set out at 979 in Taylor v. Director of Public Prosecutions (1973) A.C. 964 the word “fight” is ambiguous. Essentially the judgments of the members of the House of Lords in that case make it clear that when the word “fight” is used in a criminal statute it must refer to an unlawful fight. It is the unlawful participation in a fight which is the basis of offences such as that established by section 81. It is interesting to note that Lord Reid in Taylor at 989 observed: “A man is entitled to fight strenously in self - defence if he is in serious danger.” Also of some significance is the reasoning of Lord Morris of Borth- Y -Gest at 990: “But how can one man alone fight? The answer is that of course one man who is fighting must be fighting or attacking some other person, but it does not follow that such other person becomes engaged in reciprocal fighting; he may not resist at all or, if he does resist and fights back, he may only be reasonably and necessarily defending himself.” That decision confirmed that at common law self-defence is a good defence to a charge of affray.

The appellant here would only be guilty of the offence if she actively took part in the fight in a public place in such circumstances that her conduct was unlawful. If her participation in the incident was no more than striking blows in an endeavour to defend herself against attack, and such·conduct was reasonable in the circumstances, then it could not be said that she had taken part in a fight so as to establish the elements of the offence with which she was charged.

The real question therefore becomes whether the statement she made to the court made her plea of guilty equivocal so that Magistrate should have entered a plea of not guilty and proceeded to hear and determine the matter. The effect of what the appellant said is that she was attacked by the co-accused, that she did not intend to get involved in the fight, but only did so because she was so attacked. That in my view, prima facie, suggests that the appellant only acted as she did in order to defend herself. Whether that was in fact so, and whether or not her response was reasonable in the circumstances, were questions which could only be determined on a trial. The Magistrate considered that the mitigation statement had such substance as to warrant his entering a plea of not guilty to the trespass charge, and in those circumstances it is difficult to see why it was not equally of such substance as to call for the entering of a not guilty plea to the affray charge.

Finally, the distinction between the offence created by section 81, commonly referred to as affray, and the offence of affray at common law and in most other countries whose criminal law is derived from the common law is significant. In every other place the offence of affray is defined so as to make the element of terror or alarm to the public of critical importance. As Archbold notes, in the paragraphs referred to above, at common law this element of the offence must not be weakened. Before the common law offence is established the violence must be such as to be calculated to terrify a person of reasonably firm character. The element of terror was retained by Stephen in his Code and it has been incorporated into the offence of affray under the Queensland Criminal Code [section 72] and the New South Wales crimes Act (1900) [s.93(C)]. As presently worded s.81 catches even the most minor of fights in a public place, many instances of which would not call for a conviction of common law affray. If section 81 is to be reserved for more serious instances or criminal behaviour, consideration could well be given to amending the section to bring it in line with the offence of affray as it exists in other jurisdictions whose criminal law is derived from the English common law. This would involve the introduction of new petty offences of disorderly behaviour in public places.

For the reasons given the appeal should be allowed, the conviction set aside, a plea of not guilty to the charge entered, and the Magistrates Court should proceed to hear and try the matter according to law.

BY THE COURT
(P .D. Connolly P)