Gouwadi v Reginam [1990] SBHC 92; [1990] SILR 118 (20 June 1990)

[1990] SILR 118

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 25 of 1989

GOUWADI

v

REGINAM

High Court of Solomon Islands
(Ward CJ)
Criminal Case No. 25 of 1989

Hearing: 19 June 1990
Judgment: 20 June 1990

Criminal law - appeal from Magistrate’s decision - burden of proof - assessment of witnesses and evidence - real likelihood of wrong conclusion.

Facts:

The Appellant was convicted by the learned Magistrate for assault causing actual bodily harm and ordered to pay a fine of $100. He appealed against that conviction on the grounds that the Magistrate viewed the evidence of the Defendant’s witnesses as less credible because they were Kwaio and because one of the witnesses was a heathen.

Held:

1. An appellate court would only interfere in a case that depended on the Magistrate’s assessment of witnesses and evidence where it was satisfied there was a real likelihood he reached the wrong conclusion. In this case, the comments he made about the Kwaio, in the context in which they were made, caused concern about the manner of analysis of the defence witness’ evidence.

2. There was a real likelihood in this case that the Magistrate allowed his opinion of the Kwaio to shift the burden of proof from the prosecution onto the defence.

3. (Obiter) That where an allegation was made that something was said which did not appear on the record, it should be referred to expressly in the notice of appeal.

Cases referred to:

None

Legislation referred to:

Constitution, section 10(1)

J. Hardiker for the Appellant
A. Rose for the Respondent

WARD CJ:

This Appellant was convicted by the learned Magistrate (Western) for assault causing actual bodily harm and ordered to pay a fine of $100.

He now appeals against that conviction on the following grounds:

1. That the learned Magistrate misdirected himself as to the evidence in that it was clear from his judgment that the credibility of the Defendant’s witnesses was affected, in the Magistrates view, by the fact that they were Kwaio and that in one case that the witness was a heathen.

2. That by virtue of the fact that the learned Magistrate attached less weight to the evidence of the Defendant’s witnesses simply because they originated from Kwaio the Defendant was deprived of a fair hearing by an impartial court as provided for by section 10(1) of the Constitution.

The prosecution case had been that the victim had previously attacked the accused. On the day of the assault, the accused came up behind him, grabbed him by the shirt and punched him on the nose causing it to bleed.

The accused gave evidence that one of his wantoks Alfred, was close behind him and it was Alfred who, in fact, punched the victim. Alfred, it was claimed, had left on a ship and the accused called another witness who supported his account.

Thus the issue was simply which of the witnesses the magistrate could believe. Mr Hardiker for the accused at the trial pointed out that the second witness on each side was related to the principal witness and so there was no truly independent evidence. The victim and his witness were brothers and the accused and his witnesses both come from Kwaio. It is this last fact that gives rise to the appeal.

In the judgment, the magistrate referred to the defence witness as "a heathen man from Kwaio who affirmed and gave evidence". He later explains that he does not believe that witness. On the face of that, it would seem the magistrate was doing little more than explaining why this witness affirmed rather than took the oath. However, the matter goes further because it is agreed that, early in the judgment, the magistrate used the following words, which do not appear in the record, "Me save long olketa long Kwaio too" (I know all about the people from Kwaio).

I pause there to make the comment that, where an allegation is made that something was said which does not appear on the record, it should be referred to expressly in the notice of appeal. This will enable the respondent to consider it and call evidence if necessary. In this case, the respondent takes no point because it is accepted by both parties that the words were used.

It is also agreed by counsel that it is a commonly held view amongst many Solomon Islanders that Kwaio men will deny such charges and lie, if necessary, to do so. The appellant suggests the comment shows the magistrate was prey to the same prejudice and had allowed it to influence his judgment. It is certainly difficult to explain those words in any other way and, whether they are written in the judgment or simply stated without being recorded, they are all part of the judgment.

Mr Hardiker goes further. He suggests that, when the judgment is considered against that remark, it appears the magistrate virtually shifted the burden to the defence.

When dealing with the evidence, the magistrate summarised the evidence of the prosecution witnesses in this way:

For prosecution evidence perhaps language used was rather not clear to the Defendant’s solicitor. But as a Melanesian Magistrate listening to what both witnesses had said there was no ambiguity neither the demeanour represent any falsification in their stories. I'm satisfied with their stories.

Then, having dealt with a witness who carried the case no further, he had this to say about the defence witness:

DW3 who claimed to have been there did not wholly witness the events that occurred thereafter. He claimed he was so near to accused but how on earth he did not hear what PW1 said but only hear what DW1 said. He did not see the incident that happened immediately when accused chased PW2 and jumped into the sea.

I have been to the place. It was clear all over. Had such event occurred he would have noticed what actually went on. I couldn’t believe he was there and did not see what happened. Therefore I draw an inference that he was also like DW2. His evidence was rather doubtful. I doubt whether he was present at the scene or not. I doubt that he is not telling the truth.

He then concludes:

All in all I find prosecution evidence weighs more and which I offer much credibility compared to defence evidence. Therefore I’m satisfied beyond reasonable doubt that prosecution case has been proved and I find accused guilty as charged.

Those conclusions demand some comment. In dealing with the prosecution witnesses, he simply justifies their demeanour but, when he deals with the second defence witness, he bases his disbelief on the fact he did not hear what the complainant said but did hear what the accused said. I find that difficult to understand because there is no record of the complainant saying anything in his evidence and he denies that the accused spoke. His witness, on the other hand, did refer to the accused speaking to the victim but does not refer to the complainant speaking at all. The accused said that he spoke to the victim and received the reply "No" and later spoke to the victim again. The defence witness does not refer to any conversation at all until at the end of his evidence he was asked by the magistrate, "Why can’t you hear what the first prosecution witness said" and replied, "He did not speak loud enough."

Similar is the reference to the accused chasing the victim and one of them jumping in the sea; the only reference in the record to anyone jumping in the sea is in a question by the prosecutor to this witness "Did someone jump into the sea" and the witness replying "No". Later the magistrate asked "Why did you not see that accused chased someone and jumped into the sea?" The witness replied "Because a lot of people were there about 60 people, and people were running all over the place".

I feel this was an unsatisfactory basis to assess the witness’ evidence. An appellate court will only interfere in a case that depends on the Magistrate’s assessment of witnesses and evidence where it is satisfied there is a real likelihood he reached the wrong conclusion. In this case, the comments he made about the Kwaio followed by the statement he believes the prosecution witnesses cause me concern about the manner he analysed the defence witness’s evidence followed by the conclusion that he found it doubtful.

I feel there is a real likelihood here that the magistrate did allow his opinion of the Kwaio to shift to some extent the burden of proof from the prosecution onto the defence.

The conviction for assault causing actual bodily harm is quashed.

However, the accused in his sworn evidence admitted grabbing the victim by the shirt and turning him around at which point Alfred punched him. He then said "I did not punch him. I admit I like to punch him" and later, "I intend to punch but because Alfred had punched him already, I did withdraw my intention to punch". He also admitted his attack was because the victim had punched him before.

That is a clear admission of assault. I have considered whether the accused can, therefore, be held responsible for the injuries caused by Alfred. I am not satisfied the evidence establishes that this accused knew of Alfred’s intention to the required standard.

Therefore, I quash the conviction of actual bodily harm and substitute one of common assault. I shall hear counsel on sentence.