Regina v Tobani [1991] SBHC 7; HC-CRC 039 of 1990 (29 January 1991)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 39 of 1990

REGINA

-v-

TOBANI

High Court of Solomon Islands
(Ward C.J.)

Hearing: 29 January 1991
Judgment: 29 January 1991

F. Mwanesalua, DPP, for the Appellant
A. Radclyffe for the Respondent

WARD CJ: At the Central Magistrates' Court the respondent pleaded not guilty to a charge of causing death by reckless driving. The prosecution called two witnesses who described how a young boy, Simon Peter, was struck by a motorcycle, dragged along the road and killed. The driver ran away.

At that stage in the trial, there had been no evidence whatsoever to identify the driver of the motorcycle but, notwithstanding, the learned Director of Public Prosecutions closed his case. On a submission of no case to answer, the learned magistrate acquitted the accused.

The Director now appeals against the acquittal on the following grounds.

1. That the learned Chief Magistrate failed to take Judicial notice of the Ordinary process of charge and bail to raise a prima facie case that the person surrendering to bail was the same person who had been charged and bailed.
   
2. In view of appeal ground No. 1 hereof, the learned Chief Magistrate erred in finding that the prosecution failed to identify the Respondent as the person who drove Motor Cycle Reg No. G. 1930 when SIMON PETER met his death.
   

It is clear from the record the same point was raised before the magistrate and rejected.

The Director of Public Prosecutions relies on the case of Allen & Others v. Ireland (1984) 79 CAR 206; a case in which the Divisional Court held that magistrates were entitled to use their knowledge of arrest and charge procedures in their district to establish a prima facie case. In that case, the evidence was that a group of people were jointly involved in a breach of section 5 of the English Public Order Act and all members of the group had been arrested. The Divisional Court found that the fact they had answered to their bail was sufficient to show, prima facie, they were the people arrested and were therefore present at the offence. That case is clearly distinguishable and I do not need to comment further on it.

In this case a totally different point arises. There was no evidence whatsoever that the accused was at the scene or anything that associated him in any way with the offence yet the learned Director of Public Prosecutions suggests the fact he attended the court is sufficient to establish a prima facie case he was present at the scene.

It is hard to conceive a more extraordinary argument and only a moments thought should show it is totally insupportable. If it were correct it would mean that, whenever the police allege a man has committed an offence and charge him, the very fact he fulfils his obligation to attend court is an admission of part of the case against him. Even if the magistrate was able to take judicial notice of the police process of arrest, charge and bail, and I am far from convinced that such a situation could be relied on in Solomon Islands, the circumstances of this case could never approach Allen's case.

It has been well said that the law is to protect the innocent. It is for that reason the burden is on the prosecution to prove its case. No court can accept any procedure that allows the mere fact the police have charged a man with an offence to prove anything more than just that.

Of course the protection of the innocent also extends to the victims of crime. In this case, the premature closing of the prosecution case has meant that there has been a failure to protect the interests of an innocent victim. However regrettable that is, it is not open to this Court now to correct it. It is the responsibility of the prosecution to present the case on behalf of the public properly. In this case they failed and the appeal is dismissed.

(F.G.R. Ward)
CHIEF JUSTICE