Chapman v Reginam [1998] SBHC 45; HC-CRAC 017 of 1997 (28 September 1998)

HIGH COUH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 17 of 1997

CAMERON CRON CHAPMAN

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High Court of Solomon Islands
Before: Lungole-gole-Awich, J
Criminal Appeal Case No. 17 of 1997

ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Hearing: 8^th September, 1r> Judgment: 28th September, 1998

lass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Counsel: M Samuel for Appellant,
J. Eager for Respondepondent (Crown)

JUDGMENT

(LUNGOLE-AWICH J): The Record: It is necessary for me to point out at the beginning of this judgement that the charge-sheet on which the appellant/accused was arraigned and tried is not on the case file. The charges of 2 counts against the appellant were not set out anywhere in the record. I have relied on the information in the judgement of His Worship the Magistrate, that the appellant was charged in 2 counts with the offences of possession of firearm without licence and with assault, presumably common assault, respectively. On the count of unlawful possession of firearm, it was recorded that the appellant pleaded guilty and was fined $200.00 or in default, 100 days in prison. There is no appeal against the conviction and sentence. On the second count of assault, the appellant was convicted following trial and sentenced to 3 months imprisonment. It is a matter of requirement that the charge-sheet setting out charges against an accused is included in the record. Appeal record is incomplete in my view, if an important information such as the charge on which the appellant has been convicted is omitted from it. It was not only the duty of the Clerk of Court, but also of solicitors for the appellant and for the respondent to ensure that the charge-sheet was included. Indeed it is the duty of an appellant to ensure that the complete record for appeal is available to appellate court. Important issues could arise in regard to the charge, during hearing of the appeal; for instance, the appellate court may consider that the charge is defective or that the sentence imposed is not lawful or appropriate for the particulars set out in the charge.

Grounds of Appeal

1. That the trial magistrate was wrong in his assessment of the evidence, he believed the prosecutions case and rejected appellant's case. It was stressed that the magistrate did not take into account what was described as poor demeanour of the complainant.

2. That subsequently the appellant found out that the testimonies of prosecution witnesses were the result of collusion because of duress and inducement.

New Evidence

I granted leave to the appellant to present further evidenceppeal under s.293 of the Criminal Procedure Code. I i> I was satisfied with appellant's explanation that he learnt of duress and inducement offered to witnesses only after his trial and conviction. I was also of the view that the sort of evidence he would adduce would be material and believable, of course, subject to testing in court.

Demeanour and Assessment ofs

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It is usually said demeanour is a matter for tfor the trial court and it is also said that assessment of fact is best left to the trial court - see Richard Gerea and Others v R Cr App. No. 1 of 1994 and Caldeira v Gray [1936] 1 All ER 540. That does not mean that when the conclusion of facts reached by the trial court is so unsatisfactory, appellate court should not intervene. It means that the appellant, if he is to succeed in challenging the assessment of facts made by the trial court, must show that the evidence agitates against the assessment of facts. In my view appellant can do that in at least 2 situations. 1. He may show that the testimonies and other evidence for the prosecution are so riddled with contradictions or have contradictions on important material aspects that it is unsafe for the court to accept them. 2. He may show that the trial court did not take into account important material evidence whether in the prosecution's or the defence's case, that could have caused the trial court to arrive at different assessment of fact.

The judgment of His Worship the Magistrate wry detailed about the facts. On page 5 he pointed out most of the contrcontradictions in the testimonies of prosecution witnesses. It seems to me that contradiction in 3 and 4 between the story of the complainant, Patrick Sale PW1, that he and Ringo Tadauru PW2, removed the gun completely from the defendant, and the story of Ringo that they did not remove gun completely, is contradiction on a crucial fact. There is no good reason to prefer to resolve the contradiction in favour of the prosecution's case. The magistrate did not state why he resolved it in favour of the prosecution's case. When that is taken together with the story of Emily Ferania PW3, that she did not see a struggle, but later heard the complainant shout, "thank you for pointing gun at me", and with the fact that she answered contradicting in cross-examination that she had forgotten to talk about the struggle, the prosecution's case about the struggle becomes very weak, too weak for the test of, beyond reasonable doubt required in criminal case - see Peter Ipao v. R Cr. App. [1982] and the English cases; Woolmington v DPP 25 Cr App 72. and Johnson v. R (1961) 46 Cr. App. R. 55.

Was DefCase Taken into Account?

Apart from the contradictions, the magistroncluded that the appellant asked Mr. and Mrs. Malefo to hide the gun because of the knowledge of guilt that appellant had pointed the gun threateningly at Patrick and not for the fear that Patrick might lay hand on the gun. I wonder whether the magistrate took into account the story of the appellant that he had taken the gun in a bag to go off with, but trick tried to remove it from the appellant so the appellant returned the gun into the house. That could be consistent with the action of the appellant to keep the gun away from Patrick. Further I wonder whether the magistrate considered the admitted guilt that appellant did not have licence for the gun and the probability that appellant might have feared that the police might go to investigate any report made following the incident of that early morning and might inquire about licence if the police sees the gun.

Improbabilities

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Another important consideration is that improbability looms large in the prosecution's case. Is it normal for someone threatened to be shot with a gun to give back the gun during the same incident to the assailant after the gun had been forcibly removed, or even for the person to linger around knowing that the assailant still has got the gun?

Appeal Allowed

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In my view, even without the additional evidence adducedduced, the evidence before the trial magistrate could not pass the test of beyond reasonable doubt. On the record alone I allow the appeal, quash the conviction of common assault and set aside the sentence imposed.

Additional Ece

The additional evi adduced comprised the test testimonies of Rings Tadauru PW2, and Family Ferania PW3. They retracted their earlier testimonies on the material fact that the appellant pointed a gun at Patrick Sale. They said their boss, one Daisol, offered them money to tell the story to the police. That, in my view, completely destroyed the prosecution's case. The appeal would be allowed even on that basis.

class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> There has no appeal on the count about unlawful possession of firearm. This judgment does does not affect conviction and sentence on that count.

Delivered this Monday 28^th day of Sept, 1998

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Sam Lungole-Awich
JUDGE