Dalu v Reginam [1993] SBHC 54; HCSI-CRC 43 of 1992 (24 February 1993)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.43 of 1992

SAMUEL DALU

-v-

REGINAM

High Court of Solomon Islands
(Palmer J.)
Criminal Case No. 43 of 1992

Hearing: 23rd February 1993
Judgment: 24th February 1993

A. Radclyffe for Appellant
Director of Public Prosecution for the Respondent

PALMER J: The Appellant, Samuel Samo Dalu was charged with the Offence of going armed in public contrary to section 78 of the Penal Code together with 3 other co-accused. They were convicted after pleading not guilty and a trial had been held and sentenced to 6 months imprisonment each.

This Appellant now appeals against conviction on the following grounds:

(i) The conviction reached by the court was against the weight of evidence produced in court by the defence which clearly create a doubt in the prosecution evidence.

(ii) That the Magistrate failed to exercise his discretion to disqualify himself from hearing your petitioner’s case since he had two previous cases concerning the same parties as the case where your petitioner is now convicted.

(iii) The Magistrate failed to give the benefit of the doubt in the prosecution evidence to your petitioner even though he had expressed doubt about the cause of the prosecution evidence.

It is trite law that matters on weight of evidence are matters for the Magistrate (as judge of both law and fact) to decide upon. Questions on the weight of evidence are not determined by arbitrary rules, but by common sense, logic and experience. (See Phipson on Evidence 10th Edition, paragraph 2011).

In the same paragraph the statement of Birch J. in the case of R v Madhub Chunder (1874) 21 W.R.Cr 13 at p.19 were quoted by the learned author as follows:

“For weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and in each common sense and shrewdness must be brought to bear upon the facts elicited.”

I have had the opportunity to go through the record of proceedings of the Magistrates’ Court and the judgment of the learned magistrate.

As the learned Director of Public Prosecutions has pointed out, there was ample evidence before the learned Magistrate within which to enter a verdict of guilty if the evidence of the prosecution witnesses was accepted and believed.

Equally, on the other hand the evidence of the appellant and the co-accuseds if accepted and believed by the learned magistrate could have resulted in their acquittal.

The learned magistrate however, in his assessment of the evidence, accepted and believed the evidence of the prosecution witnesses. He rejected the evidence of the appellant and the three other co - accuseds.

One of the main reasons for rejection of the appellants and the three co-accused’s evidence was based on his personal observation of the witnesses as they appeared before him. In page 12 of the record of proceedings, second paragraph, the judgment of the learned magistrate reads:

“I need not repeat the whole of the evidence but to say that I am satisfied having seen Da’amae Toto, Stephenson Toto and David Toto giving evidence in court challenged in cross-examination that they were telling me the truth.”

The first important point to note is that the prosecution evidence before the learned magistrate was not weak or non-existent. It was strong solid evidence, from eye witnesse’s accounts.

The magistrate then explains why he accepted and believed the prosecution witness’s evidence. His belief in the truthfulness of the prosecution’s witnesses emanated from his observations of the witnesses. This was a proper conclusion.

In Phipson on Evidence, (ibid) paragraph 2012, the learned author makes the following pertinent comments:

“The principal purpose of the observation of witnesses is to ascertain or test their truthfulness, but it would be a dangerous thing to fill in gaps in the proof merely from observation. If the evidence is weak or non-existent then what is lacking in the evidence cannot be supplied by observation of the witnesses.”

The learned magistrate then proceeded to explain why he rejected the evidence of the defence witnesses. He stated and it is best I quote the relevant part of his judgment:

“I cannot believe the evidence in defence that the prosecution witnesses were also armed at that time. The reason for this is that, the defendants never suggested to the witnesses in cross examination that they also armed with a bush knife each and that Da’amae armed with an alafolo. Susuau said that Da’amae hit him with his alafolo in his evidence in defence, but he never thought of questioning Da’amae or suggesting that to him.”

I accept what Mr. Radclyffe has stated that the appellant was not represented and therefore not in a position to be aware of the techniques involved in cross-examination. But having regard to all of the evidence as stated in the record of proceedings it seems to me that the learned magistrates reasoning was but part and parcel of the process of observation that he made over the witnesses as they gave evidence.

The learned magistrate had already indicated that from his personal observations the prosecution witnesses were truthful. The defence witnesses on the other hand therefore by inference were non-truthful.

And it is from this inference that his statements must be considered.

What the learned magistrate seems to be saying is that if the appellant and the co-accused were speaking the truth and the prosecutions witnesses telling a lie, then surely, from a plain common sense view point, the defendants would have responded in cross-examination by pointing out to the prosecution witnesses, that they were (i) armed with knives and an alafolo and (ii) that they were the aggressor.

This does not require one to have a knowledge of cross-examination techniques! The fact that no challenge was made even when given the chance further widened the credibility gap it seems in the learned magistrate’s mind.

But it needs to be pointed out that this was not the reason for the conviction. It was part and parcel of the observation process, the reasoning and deductive process wherein the conviction was eventually entered. That process has not been shown to be improper, unsound or unsafe. There is evidence within which the learned magistrate could make his findings and conclusions.

The reference of the learned magistrate to the immateriality of the defendant’s witnesses in paragraph 4 of page 12 of the record of- proceedings needs to be put in its context to be understood also. And this is again the observation and deductive process in his judgment.

He heard the evidence. He saw the witnesses giving evidence. He is entitled to form an opinion from his observations as to who is speaking the truth or is being truthful. He is entitled to attach what weight he considers should be attached to the evidence before him.

I take the point raised about the lack of knowledge of cross-examination techniques of the appellant and that he was unrepresented at the lower court hearing. But when considering the whole context of the hearing and the judgment of the learned .magistrate I am not satisfied that the reason given by the magistrate was improper, unfounded, or unsound. It may be unfair to expect the appellant to have specialised knowledge of cross-examination techniques, but as I have already pointed out, there is a lot of common sense knowledge and understanding that is being applied and expected from an honest, reasonable and truthful person. It may be that the appellant was too scared to ask or was simply plain ignorant. But even if that was so, the learned magistrate did make it clear that he believed the prosecutions witnesses.

I am not satisfied that there is anything improper or unsound about that. He was entitled to form that view after hearing, seeing and assessing the witnesses and their evidence. There was ample evidence for a conviction. I am not satisfied that the conviction was entered against the weight of evidence produced in court by the defence. Ground (1) therefore is dismissed.

Ground (2) & (3) are also dismissed in view of the concessions made and the lack of substantive submissions in support.

(A.R.Palmer)
JUDGE