Romane v Regina [2005] SBHC 23; HCSI-CRC 144 of 2004(2) (11 November 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 144 of 2004(2).

STEPHEN ROMANE

v.

REGINA

(KABUI, J.).

Date of Hearing: 9th November 2005.
Date of Ruling: 11th November 2005.

H. Kausimae for the Crown.
L. Kershaw for the Accused.

RULING

Kabui, J. The Crown has closed it case in this trial. Counsel for the accused however has made a no case to answer submission under section 269 of the CPC and asks that this Court acquit the accused on that basis of no case to answer.

The basis of the submission is that the evidence of identification of the accused in the dock was unsafe and for that reason this Court should reject it and acquit the accused. The rest of the Crown evidence is not being attacked by Counsel. In other words, the reliability of dock identification of the accused by the complainant is the issue here and no other.

The test to be applied in a no case to answer submission.

The authority on this issue in this jurisdiction is R. v. Tome, Criminal Appeal No. 4 of 2004 as applied and restated in R. v. Manassah Saomae, Criminal Appeal No. 03 of 2004. The test is not that the Crown has proved its case beyond reasonable doubt but that the evidence adduced by the Crown at its best is capable of proving the case for the Crown beyond reasonable doubt that the accused is guilty.

The evidence adduced by the Crown.

The man by the name of Stephen used to drop off the complainant’s aunty at her house at Leggakiki in Honiara. The complainant knew that man by the name Stephen. According to the complainant, the man called Stephen came to her house to look for Gara, the complainant’s sister, in the evening of 18th April 2004. Gara had gone somewhere else and was not at home when Stephen called. Stephen then persuaded the complainant to go with him in his taxi to go to look for Gara. There were two other men in the taxi and the taxi driver. The complainant sat behind in the back-seat with Stephen. The taxi drove around town and then headed to a house in which Stephen lived.

On arrival at the house, Stephen and the complainant went out of the taxi and went inside the house and into Stephen’s room. Stephen then had sex with the complainant twice. They stayed in Stephen’s room until in the early hours of the morning when Stephen drove the complainant home and dropped her on the road near her house.

In the morning, her mother asked where she had been the night before. She told her mother she had been with Stephen and Stephen had spoiled her twice. In the morning, she and her mother went to where Stephen lived and then went to the Central Police Station. There is no dispute that Stephen worked and lived in the back of the Smart Variety Building in Honiara. She went with the Police there where photographs were taken.

In her evidence in chief, she was not asked about the identity of Stephen. After cross-examination and re-examination closed, I asked her whether she could recognize Stephen if he saw him again and she said no. I then asked her if she saw Stephen in Court and she pointed to the accused in the dock. Sergeant Taro who interviewed the accused in the Central Police Station on the same day the complainant reported the matter to the Police also identified the accused in the dock as being the Stephen who had been accused by the complainant. It is not disputed that there had been no identification parade before.

Conclusion.

The effect of Counsel for the accused’s submission is that I should assess the complainant’s evidence of dock identification and reject it because it is unsafe to rely on it to convict the accused. There is evidence that Stephen had sexual intercourse with the complainant in circumstances where the lack of consent is an issue. The complainant is mentally retarded and was sixteen years old when Stephen allegedly had sex with her.

As the law stands, it is not my function as a trial judge to assess the Crown evidence at the close of its case that the Crown had proved its case beyond reasonable doubt. Rather, my function is to see whether the Crown evidence at its best is capable of supporting the conclusion beyond reasonable doubt that the accused is guilty.

In this respect, I can do no better that to quote from the head-note in Doney v. The Queen cited above which states-

“If in a criminal trial there is evidence( even if tenous or inherently weak or vague) which can be taken into account by the jury and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury. The judge has no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory.”

Applied to the facts of this case, it becomes that whilst dock identification may be inherently unsafe, it is capable of supporting a verdict of guilty taken as part of all of the evidence for the Crown. The dock identification evidence does have a probative value subject to the warning of it being unsafe to rely on for a conviction. Credibility of witnesses and sufficiency of evidence are issues best left to the closing speeches by Counsel from both sides.

The application to acquit the accused on the basis of a no case to answer is dismissed. I order accordingly.

The accused does have a case to answer.

F.O. Kabui
Puisne Judge