Bosamete v Regina [2013] SBCA 16; SICA CRAC 5 & 6 of 2013 (8 November 2013)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands ( Pallaras J)
COURT FILE NUMBER:	Criminal Appeal Case No.5 of 2013and 6 of 2013 (On Appeal from High Court Criminal Case No.97 of 2009)
DATE OF HEARING:	28 OCTOBER 2013
DATE OF JUDGMENT:	8 NOVEMBER 2013
THE COURT:	Justice Glen Williams JA, P(Ag) , Sir Gordon Ward JA , Sir John Hansen JA
PARTIES:	Jeffrey Phillip Bosamete and Regina -V - - V - Regina Jeffrey Philip Bosamete
Advocates: Appellants: Respondent:	W. Ghemu with H. Blundell for Bosamete J. Naigulevu with L. Fineanganofo for Crown
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1- 9

[1] The appellant in Case No 5/13 and respondent in 6/13 (Bosamete) was convicted of two counts of defilement contrary to section 142(1) of the Penal Code and sentenced to a total of seven years imprisonment. He appeals against conviction and sentence.

[2] Bosamete had been tried on an information which charged two counts of rape of the same 12 year old girl on separate days in June 2008. At the close of the prosecution case, the learned trial judge had found no case to answer on both and acquitted the appellant but found the evidence on each count was sufficient to support charges of defilement. He proceeded with the trial and convicted Bosamete on both charges of defilement.

[4] In case No 6/13, the Crown appeals on the sole ground that the learned judge failed to apply the correct test enunciated by the Court of Appeal in relation to the question whether there was a case to answer in the High Court and acquitted the respondent.

[5] The whole issue in both appeals is the correct test to be applied following a submission of no case to answer and, where the submission is accepted, the power of the court to continue with the trial of an alternative charge.

[6] The agreed facts of the case were that the complainant was born on 30 September 1995 and that the appellant had sexual intercourse with her in the night of 26 June 2008 and again on the 29 June 2008. There was therefore no challenge to the fact that she was 12 years 9 months old at the time and, on the charges of rape, the only issue was consent.

[7] It is not necessary to deal further with the facts of the offences as both appeals concern the procedure adopted by the learned trial judge when ruling on a submission of no case to answer at the close of the prosecution case.

[8] The prosecution closed its case on the second day of the trial and counsel for the defence, Mr Ghemu, advised the judge that the appellant would make an unsworn statement from the dock, clearly implying he had no intention of making a submission. However, the learned judge sought counsel’s agreement over the test to be applied on a submission of no case:

“[I]n respect of a no case to answer submission, do you agree that a no case to answer submission can be made either if there’s no evidence on an essential element of the offence or if the evidence that is presented is insufficient for a reasonable jury or a reasonable court to find beyond reasonable doubt the guilt of the accused?”

[9] Each counsel agreed that both limbs suggested by the judge were applicable. The following morning both counsel addressed the court on a submission of no case and the judge, in a written ruling, held that he would stop the case of rape and proceed with alternative charges of defilement, contrary to section 142(1).

“ In a trial by judge alone, the presiding judge is of course both the judge of the law and of the facts. At the close of the Crown’s case, the judge must be satisfied not only that there is evidence capable of proving the case against the accused beyond reasonable doubt, but also that if the evidence is accepted, that it is sufficiently reliable and of sufficient weight so as to form the basis of a sound and safe conviction. ...

[I]f at the end of the Crown's case a trial judge is of the view that the evidence of the Crown, although on a strict reading is capable of proving the elements of the offence - such as for example where a complainant says that she was forced to have sexual intercourse without her consent – where the judge assesses her evidence to be so lacking in reliability and weight that her evidence cannot be accepted as forming the basis of a sound and safe conviction, then the trial judge is entitled to rule that the accused has no case to answer and acquit him of the charges he faces.

That is the position that I find myself in with the prosecution evidence in this case. The complainant has said that she was raped by the accused. To that extent, her evidence is capable of proving the elements of the offence. However, her testimony was attended by illogicality and contradiction which caused me to have serious doubt as to her reliability and to look for corroboration of her evidence in the rest of the prosecution case. There was little corroboration to be found.”

[11] The judge then considered the evidence of the other prosecution witnesses and continued:

“When the Crown's case is analysed in this way, it can be seen that there is little support to be found in it for the complainant. I did not assess this young girl to be untruthful, after all she was just 12 years of age when these events occurred and several years have passed since then. However after considering the content of her evidence and the Crown case as a whole, I have more than a little doubt about her reliability and do not believe that a conviction based on her evidence would be safe.

As a result, I rule that on the two counts of rape, the accused has no case to answer and those charges are dismissed. The accused is acquitted on both counts of rape on the information. ... I do find as a matter of law that the accused does have a case to answer under section 142 of the Penal Code and I call upon him to answer the case against him.”

[12] The procedure in criminal trial is governed by the provisions of the Criminal Procedure Code. Section 3 provides that, subject to its express provision of any other law, "all offences shall be inquired into, tried and otherwise dealt with according to the provisions hereinafter contained."

[13] The procedure at the close of the prosecution case in a trial in the High Court is prescribed by section 269 (1):

"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 their the prosecution or the defence may desire to submit, record a finding of not guilty."

[14] It is clear that the wording of that section permits consideration of the submission of no case to answer to be allowed only if there is no evidence of any essential ingredient of the offence charged. The second limb suggested by the trial judge is not included. It is unfortunate counsel failed to point this out to the learned judge.

[15] For many years, as the result of the decision in R v Lutu [1986] SBHC 16, the courts in this jurisdiction have effectively followed the test in the English case of R v Galbraith so that the second limb in Lutu, “(2) Where the evidence is so little or so unconvincing that it is insufficient to convict even if uncontradicted by the defence, the accused should not be required to make a defence” has been applied in this jurisdiction.

[16] Lutu’s case overlooked the important distinction between the test in England where there is no statutory provision and that provided in this jurisdiction by the Criminal Procedure Code. Clearly, by section 3, the High Court is bound by the more restricted terms of section 269(1) of the Code.

[17] The limited power given to the High Court by section 269(1) was noted by this Court in the case of R v Tome [2004] SBCA 13 and further clarified in R v Somae [2005] SBCA 18. In the former, the Court pointed out that the test for the judge at the end of the trial included the evaluation of the strength of the evidence but differentiated that from the position on a submission of no case at the close of the prosecution. The Court concluded:

“The test called for by section 269(1) is whether or not there is ‘no evidence that the accused committed the offence’. That must mean that if there is some evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact.”

[18] The Court referred to the case of Doney v The Queen [1990] HCA 51 and the test formulated in that case by the High Court of Australia:

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision."

“ As is made clear by cases such as Doney, inconsistencies in evidence (whether within the testimony of a witness or as between witnesses) are not relevant at the no case stage. The court must take the prosecution evidence at its highest and that means accepting the evidence most favourable to the prosecution when determining whether an accused has a case to answer. The test is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty.”

[20] Nine months later, in R v Somae, the Court repeated that reference to Doney and added:

"It is important to note that the evidence that is to be considered for the purposes of a no case submission must be capable of proof beyond reasonable doubt of the accused’s guilt. It is not enough if it is merely capable of proving the possibility of guilt. It must be capable, if accepted, of proving guilt beyond a reasonable doubt. As the High Court of Australia said in Doney, ‘To put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’ ”

[21] It is unfortunate that counsel failed to correct the judge when he suggested both limbs as formulated in Lutu were applicable. The Court of Appeal decisions in Tome and Somae had been part of the law in Solomon Islands for some years and the judge was clearly aware of them because he suggested that Somae’s case supported his proposition that the second limb applied.

(We acknowledge that Mr Dhita for the Crown made one effort to correct the judge. When asked by the court:

“I’ve made the decision about the complainant ...so it can’t get any better for the Crown unless the accused suddenly decides to make admissions which contradict all instructions so far, and you can’t run a trial on the hope that if your case doesn’t quite match up to where it should then let’s get the accused in the witness box to see whether we can fill in the gaps, that not a fair trial. So if I form the view now, the complainant’s evidence although capable is not sufficient, why should I wait until the end of the trial to put that decision into effect by putting it, why should I?”

Counsel responded, “Because that is what the law requires, my Lord.” Unfortunately he subsequently concurred with the judge’s firmly stated and oft repeated view.)

[22] We find it hard to understand the court’s position that Somae supported his use of the second limb in Lutu. The Court in Somae clearly accepted the reasoning in Tome and concluded by stating in the plainest possible terms:

“Lutu was regarded as setting out the applicable test in Solomon Islands until Tome.”

[23] In the submissions before us it appeared some confusion remained in counsels’ minds as to the possibility that Somae did not follow Tome. We note that this Court in the later case explained:

“It is worth noting, however, that Tome was decided by this Court on 10 November 2004 whilst [Somae’s] trial occurred in February 2004. Brown J [the trial judge] did not have the benefit of Tome for the purposes of considering whether, in [Somae’s] case there was a case to answer. ...

[24] Before Tome was decided, it was accepted that the relevant test in Solomon Islands was that enunciated in the United Kingdom in R v Galbraith. Although Galbraith was not specifically referred to, Ward CJ applied the test in Lutu. ... Lutu was regarded as setting out the applicable test in Solomon Islands until Tome.”

[25] As a result, although accepting that the proper test was as stated in Tome, the Appeal Court considered the correctness of the judge's ruling in terms of the test which applied at the time of the trial in the High Court.

[26] In the present case, it is clear that the trial judge wrongly directed himself on the appropriate test to determine a submission of no case to answer and erred by applying the second limb in Lutu. From his judgment it is clear that he accepted there was some evidence which taken at his highest (the test he should have applied), could sustain a verdict of guilty of rape.
[27] The appeal by the Crown is allowed. We will return to the effect of this decision after we have determined Bosamete’s appeal concerning the learned trial judge’s subsequent actions.

[28] All four grounds of appeal by Bosamete relate to the way the trial judge dealt with the case following his finding of no case to answer on rape and his acquittal of the defendant on those charges. It is convenient to deal with them together.

[29] As can be seen, section 269 (1) provides that, where the court considers there is no evidence that the accused committed the offence and after hearing counsel, the court must “record of a finding of not guilty”. The transcript records that, having considered the complainant’s evidence, the judge ruled:

"... after considering the content of her evidence and the Crown case as a whole I have more than a little doubt about her reliability and do not believe that a conviction based on her evidence would be safe. As a result I rule on the two counts of rape the accused has no case to answer and those charges are dismissed."

[31] The judge then passed on to consider the provisions of section 166 of the Criminal Procedure Code:

"When a person is charged with rape and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 141(1), 142, 143, 145 and 163 of the Penal Code, he may be convicted of that offence although he was not charged with it.”

[32] He concluded, "I do find as a matter of law that the accused does have a case to answer under section 142 of the Penal Code and I call upon him to answer the case against him.”

[33] Counsel for the appellant submits that the finding of no case to answer followed by dismissal of the charges and acquittal of the charges on the information was the end of the matter. The judge’s decision he suggests effectively extinguished the information before the court and there was no power pursuant to section 166 to convict the appellant of defilement. In his written submissions he suggests:

"... upon finding that the appellant had no case to answer on the charges on information, the only orders available to him were to enter verdicts of acquittal and discharge the accused. A finding that there is no case to answer is a conclusive finding and no further continuance of the trial is possible. In essence, either there is a case to answer or there is not. It was not possible, in law, for His Lordship to find no case to answer in relation to all the charges on information, to dismiss the charges and acquit the appellant but then to find there was a case to answer on alternative charges, which were not laid on information. The two decisions are internally inconsistent."

[34] In the trial, no objection was raised to the course pursued by the judge and counsel immediately advised the court that the accused would be giving a statement from the dock. The appellant then made a very short address in which he denied using force or threats and said that the young girl was his girlfriend and had agreed. He did not know her age. Counsel then closed the defence case.

[35] Whilst the wording of section 166 gives the judge the power to convict of the alternative offence only once he is of the opinion that the accused is guilty of that offence, it significantly gives no indication of the stage this must occur. In the present case, the judge properly accepted that, once he found the accused not guilty of rape, he should be acquitted of that offence. He was correct to continue with the case on the alternative of defilement before deciding whether the appellant was guilty of that offence. Once he did so find, section 166 gave him the power to convict.

[36] The effect of section 166 is to make all the offences in the sections listed possible (implied) alternative charges to rape – similar, for example, to manslaughter when it is not charged as an alternative count in a trial for murder. In the majority of cases the decision that the defendant is not guilty of rape and the consideration that he is guilty of one of the alternative charges occurs at the end of the trial.

[37] In the present case it is clear that the judge had formed the opinion that the appellant was not guilty of rape and simply found there was a case to answer on defilement based, no doubt, on the defence admission of the fact of sexual intercourse. Treating the case as one with alternative charges under section 142(1), he allowed the case to continue on that offence. It was only after he had given the appellant the opportunity to give evidence or make a statement that the judge formed the opinion he was guilty of the alternative offences and convicted him. It is clear section 166 does not require the accused to have been charged with the offence.

[38] Defence counsel suggests that the acquittal at the close of the Crown case automatically terminated the trial and prevented the alternative charge being pursued but can offer no authority to support his contention. In many cases where the indictment includes alternative charges and there is a successful submission of no case with respect to the more serious charge, the judge will acquit the accused of that charge and order the case to proceed on the lesser charge. We do not read section 166 as requiring a different procedure save for the removal of the need to have the accused charged with the alternative offence beforehand.

[39] There is no other challenge to the conviction of defilement and the appeal by Bosamete against conviction is dismissed.

[40] We have found that this acquittal of rape arose from the trial judge’s use of the wrong test. However, the facts of this case also support a charge of defilement which carries the same penalty. We have decided against ordering a retrial because such an order would further delay a trial already very badly delayed and possibly require the victim to give evidence again.

[41] The appellant was sentenced to a total of seven years imprisonment. We have granted leave. He appeals on two grounds:

[42] We deal with the second ground first. It is clear that the appellant, through his counsel, offered to plead guilty to two counts of defilement instead of rape before the trial. This was communicated to the DPP and rejected. It was repeated during the trial. Again the DPP was consulted and again the offer was rejected. Despite the suggestion in the second ground, the judge did take note of this fact:

"He has made a very early offer to plead guilty to offences of defilement while maintaining his innocence of rape. At the conclusion of the Crown's case before me, I'm told that he again offered to plead guilty to defilement which offer was refused by the Director of Public Prosecutions.

The accused is to be given some credit to his admission to the offences of defilement although quantifying the benefit is problematic. There's been little if any utilitarian benefit derived as the complainant and other witnesses still needed to attend court to testify. However, it is put on his behalf and I accept that he was the least initially co-operative with the police in their investigations and has maintained throughout his willingness to plead guilty to the alternate charges.”

[43] The judge then passed on to consider whether the offer to plead guilty indicates remorse by the appellant. He refers to the appellant’s unsworn statement and concludes that he had serious doubts whether “the accused accepts that he has done anything wrong at all”.

[44] We consider that, in this aspect of the sentence, the learned judge has not fully recognised the value in terms of mitigation of the offered to plead guilty to defilement. In all sexual offences particularly where the complainant is a young child, the greatest benefit of a plea of guilty is that the victim will be spared the ordeal of having to give evidence and relive the incident in the witness box. The judge’s suggestion that there had been little if any utilitarian benefit derived because the complainant still had to give evidence, with respect, misses the point. Had the appellant’s plea been accepted, the complainant would not have had to attend court. The need for her to give evidence was the result of the prosecution declining to accept his offer.

[45] The judge noted, as matters of aggravation of sentence, the complainant's evidence that a knife was used to threaten his victim, the difference in ages between that of the complainant (suggested to be between 18 and 20 years old at the time of the offences) and his niece and the breach of the trust the appellant enjoyed because of his blood relationship to the victim. He also gave credit for the appellant’s previous good character and his offer to plead guilty to defilement and his initial co-operation with the police in their investigations. He also accepted that there had been payment of traditional compensation to the complainant's family.

[46] He noted the maximum sentence was life imprisonment and explained that the appropriate sentence to reflect the seriousness of the offence was one of five years on each count of defilement. He did not feel they could properly be made concurrent with each other because the second offence was committed after a long enough interval to allow him to reflect on his actions and come to his senses. Instead he decided to abuse the young girl again. Those aspects suggested the sentences should properly be consecutive. He continued:

"That results in a total sentence of 10 years imprisonment. I have regard to the principle of totality and consider that it is appropriate to apply it to better reflect a just sentence. In so doing I reduce the total sentence to one of eight years by ordering that the first two years of the sentence for count 2 be served concurrently with the sentence being served on count 1. Having regard to the matters put on behalf of the accused and in particular, his willingness to plead guilty to the offences of defilement, I further reduce the total sentence by one year.”

[47] In mitigation counsel had referred to a number of previous sentences and the judge commented;

“ In some of the authorities presented to me for consideration, sentences passed were measured in months and included sentences of suspended sentences. These authorities may have represented appropriate sentences based on all the evidential material before the court at the time and for the time when sentence was passed. However, I am not persuaded that for a crime which is regarded so seriously as the defilement of a young child as to have provision for a sentence of life imprisonment, that a suspended sentence or a sentence measured in months could ever be appropriate, except for the most rare of cases. ... This is nor a rare case. ... This is an offence for which deterrence both general and personal must be uppermost in the sentencing process. A suspended sentence or a sentence measured in months in my view fails both of those objectives in large measure.”

[48] This Court has also considered the earlier sentences cited from this jurisdiction and share the learned judge's view of their leniency and inappropriateness. In this session of the Court, we have heard an appeal against sentence in another defilement case and have stated our views of the levels of sentencing. The case is Pana v R, Criminal case no 13 of 2013 and our conclusions on the appropriate level of sentencing in such cases apply equally to this case.

[49] For the same reasons as we have stated there, we do not consider the total effective sentence of 7 years for this offence is excessive and the appeal against sentence is dismissed.

Court of Appeal of Solomon Islands

Bosamete v Regina [2013] SBCA 16; SICA CRAC 5 & 6 of 2013 (8 November 2013)