Regina v Kama [1996] SBHC 17; HC-CRC 007 of 1995 (29 March 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 7 of 1995

REGINA

-v-

BRIAN KAont>

&

Before: Muria, CJ

Hearing: 25 March 1996 - Judgement: 29 March 1996

Counsel: DPP for Crown; B. Titiulu for Accused

MURIA, CJ:

The accused has been charged wne count of criminal tresparespass, c/s.182(2) and of one count of threatening violence, contrary to section 83 (a) of the Penal Code. The accused had pleaded not guilty to both counts.

The facts of this case are in short compass and are largely not in dispute. At the early hour between 02.00 am and 04.00 am on 18 December 1994, after attending a party at one George Hiele's residence, the accused, together with his brothers, Breen Kama and Zebulon Kama left the party and went to Christopher Nagu's house which was located just above the Kola ridge cemetery ground. From there, the accused and his two brothers drove in their bus eastward.

On their way, the bus ran out of fuel and stopped near the bus stop opposite the green-terrace houses at East Kolaridge. They pushed the bus to the side of the road and left it there with Zebulon Kama inside sleeping as he was drunk. The accused and Breen went to a house belonging to Leonard Maina. They knocked and called out but nobody responded. Breen left while the accused remained behind.

Leonard Maina was not at home at the time but his wife and children were. They heard the knocking and banging of the doors and calling out together with some swearing- words. They were frightened and ran out of the house through the back door. They contacted the police from a neighbour's house. The police came and found the accused sleeping inside the house and took him away.

When Leonard Maina returned to the house at about 04.00 am he discovered his wife and children had left the house. Upon inquiry, he found out that his family was at a neighbour's house.

As I mentioned, the accused did not deny going to Leonard Maina's house that night nor did his brother Breen who accompanied him to the house. His defence, however, is that he was mistaken. He mistook Maina's house to be that of Wilson Gasimata as he was drunk that night. Thus in respect of the count on criminal trespass Counsel for the accused relied on the defence of mistake of fact as provided under section 10 of the Penal Code which is as follows:

"10. A person who does nor omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of thins had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

As to the count of threatening violence, the accused simply denied any such occurrence. He said he simply knocked on the door without kicking the door and without shouting and using any swearing-word. He said that when nobody answered his knocking, he sat down on the verandah and fell asleep, as he was very drunk.

This case really turns on whose evidence the court accepts. On that, I shall now turn to the evidence adduced by the witnesses in the court.

Mr. Maina's evidence is that he at no time did he ever invite the accused to the house. The accused, in his evidence, did not deny the fact that he was not invited to Maina's house. His case is that he went to the house under mistaken belief that it was Gasimata's house.

To support his case of mistaken belief that it was Gasimata's house, the accused said he was so drunk that night and could only recall that a month earlier he passed-by that place and met Gasimata who pointed out to the accused the general direction as to where his (Gasimata's) house was. Believing that the house where he and his brother Breen were going to that night was Gasimata's house, they proceeded to the house. For both the accused and his brother it was the first time that they ever tried to go to Gasimata's house.

There were lights outside the doors and when the accused got to the house he first knocked at the front door while his brother went and knocked at the back door. There was evidence from the accused that when he knocked, he called out the name "Gasi" but there was no response.

The accused had been charged under subsection (2) of section 182 of the Penal Code which provides as follows:

"(2) Any person who enters by night any dwelling house or any verandah or passage attached thereto, or any yard, garden or other land adjacent to or within the curtilage of such dwelling-house, without lawful excuse, is guilty of misdemeanour, and shall be liable to imprisonment for one year."

As has been seen, the entering of Mr Maina's house that night is not denied. The accused is simply saying that he was mistaken relying on the defence under section 10 of the Penal Code. That he says was his lawful excuse.

The only evidence of the existence of mistake came from the accused himself. His brother Breen only followed him. Although disputed by the prosecution, there was only the evidence from the accused of the earlier meeting on the road near that place between the accused and his uncle, Gasimata. Coupled with that is the undisputed evidence that the accused was drunk that night when he said he went to Maina's house by mistake. There is also no evidence from the prosecution of any ulterior reason suggesting why the accused had to go to Maina's house that night.

On the other hand there is also the evidence from the accused and his brother of their vehicle having problem with its fuel and that they intended to go to Gasimata's house to find assistance. They called out Gasimata's name when they got to the house. Again there is no evidence adduced by the prosecution to counter the accused's evidence on this aspect of his case. The court is left with that evidence only. Even if I might find the accused's action to be unattractive, I cannot just simply ignore his evidence unless I have proper basis for doing so and that must be on the evidence before the court.

The defence having been raised and on the evidence there is basis for raising it, the burden is on the prosecution to exclude it and this they must do so beyond a reasonable doubt. In this case, having anxiously considered the evidence I feel it would not be safe to say that they (prosecution) have done so. In my view the defence under section 10 is made out.

As to the count of threatening violence, the evidence adduced by the prosecution to support this charge comes from Mrs Maina, Titus Maina and James Laore. In her evidence Mrs Maina stated that she heard the knocking's on the door followed by loud banging and kicking of the door. There was also some shouting out of foul language at the same time. The shaking and kicking of the door came about because nobody answered the accused. Mrs Maina and her children were terrified and they had to flee from their house that night.

Mrs Maina's evidence was confirmed by her son Titus Maina who, though frightened, was able to see and hear what had happened. He was awoken by his mother and he heard the kicking and banging of the door. He saw the accused who was not wearing any shirt kicking the door with his boot and swearing.

James Laore's evidence was that he was asleep and he was awaken when he heard noise of a frightened person. He went down the stairs of his house and found Mrs Maina and her children who were all looked frightened and terrified. Mrs Maina told Laore that they were frightened because someone had come to their house, kicking the door and swearing.

The offence of threatening violence is set out in section 83 of Penal Code in the following terms:

"83. Any person who -

(a) with intent to intimidate or annoy any person, threatens to break or injure a dwelling house, or

(b) with intent to alarm any person in a dwelling-house, discharges loaded firearms or commits any other breach of the peace,

shall be guilty of a misdemeanour, and shall be liable to imprisonment for one year.

If the offence is committed in the night the offender shall be liable to imprisonment for two years."

The accused has been charged under paragraph (a) of the section and there is under that provision an intent to be proved by the prosecution, that is, the intent on the part of the accused to intimidate or annoy Mr. Maina and his family. Counsel for the accused argued that as far as Mr. Maina's is concerned, there would be no threat on him as he was not present in the house that night when the accused came. But I think it matters not whether Mr. Maina was present or not since the prosecution only needs to prove that the accused intended to cause intimidation or annoyance to Mr Maina and his family and that he did so by threatening to break or injure their dwelling house.

I have already found that the prosecution could not make me sure that the accused was not mistakenly believing that the house he went to that night was that of Wilson Gasimata. If the whole aim of the accused that night was to go Gasimata's house and to wake him up for help and in the course of doing so bang and kick the door violently in order to wake him (Gasimata) up, I do not see my way into saying that he intended to cause intimidation or annoyance to Maina and his family through his kicking and banging the door to their house. Though the threat (if there was any) was felt by Mrs Maina and children., it was done still under the mistaken belief that he was in Gasimata's house. It was rather unfortunate that the wrong people came to bear the consequences of the accused's mischievous actions.

As to the evidence on the charge as it stood at the moment against the accused, I am left with a considerable doubt as to the guilt of the accused on this count and I must also acquit him on this charge.

ct:

Acquitted on both counts.

GJB Muria
CHIEFCHIEF JUSTICE