Tua v Regina; Bitiai v Regina [2005] SBHC 77; HCSI-CRAC 569 of 2004 (6 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Cases Numbers: 569-04 and 515-04

FRED TUA

-V-

REGINA

AND

BEN BITIAI

-V-

REGINA

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 1^st February 2005
Date of Judgement: 6^th July 2005

For Appellants: M. Anders Esq.
For Respondent: J. Cauchi Esq. (Director of Public Prosecutions)

Palmer CJ: These are two separate appeals but have been consolidated together as it is felt they pertain to very similar matters and that it would be more convenient if they be heard together.

Ben Bitiai v. Regina

The appellant was charged with two counts of assault, one count of demanding money with menaces, intimidation and criminal trespass. When matter came before the court on 1^st November 2004 the presiding Magistrate, held a pre-trial review/conference and imposed certain pre-trial directions to be complied with. These included that the defence were required to state what the nature of defence would be; and in the event their defence was a positive one, to give full particulars to the court and prosecution. When defence disclosed that their defence to the assault charge was that of self-defence and to that of intimidation, a claim of right, the presiding magistrate further directed that full particulars be provided including who threatened the defendant, how he was threatened and names of witnesses to be called. When defence declined to give particulars the presiding magistrate ruled that the defence will not be able to give evidence addressed to any issue that they had not given full particulars of to the court.

As to the issue of intimidation, where a claim of right in custom was relied on, the presiding magistrate asked for particulars to be given of the custom, whose custom was relied on and the circumstances relied on. The defence declined also to comply and appealed the orders of the court on the following grounds:

1. That the order of the learned Magistrate was unconstitutional in that it traverses the Constitutional right to presumption of innocence enshrined in part 10(2)(a) of the Constitution by placing a burden of proof upon the defendant.

2. That it breaches the common law principle of right to silence.

3. That the said orders over reaches the powers and procedures of the court in relation to defended matters which are clearly laid out in sections 198-199 of the Criminal Procedure Code. In invoking section 54 of the Magistrate’s Court Act, and relying on English Statute, the learned magistrate failed to recognise the court procedure laid out for defended trials in section 198 – 199 of the Criminal Procedure Code of the Solomon Islands.

4. That the learned Magistrate erred in interpreting section 10 of the Constitution, which refers to rights of the accused and the trial of the accused, and not to the rights of the state in its prosecutorial role.

5. That the order of the learned Magistrate is unreasonable, unlawful and in breach of the common law and the Constitution of Solomon Islands.

Although it would seem that the appeal pertained to all the directions of the learned Magistrate, the major bone of contention would appear to be in relation to the direction or ruling of the presiding Magistrate to prohibit the Appellant from raising anything in his defence that he had not disclosed as required.

Constitutional right to presumption of innocence section 10(2)(a) of the Constitution.

One of the grounds relied on in both appeals was that the orders of the Magistrates Courts below breached the rights of the Appellants in so far as it pertained to the presumption of innocence wherein they are not required to disclose anything.

The presumption of innocence is enshrined in section 10(2)(a) of the Constitution as follows:

“Every person who is charged with a criminal offence-

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;”

The presumption of innocence translates to the burden of proof which prosecution is required to discharge in a criminal trial, being proof beyond reasonable doubt. In Cross on Evidence 6^th Edition at 200, point 7085, the learned Author describes it as follows:

“When it is said that an accused person is presumed to be innocent, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt, and unless and until this is done, the accused is taken to be innocent, not merely not guilty. This is the fundamental rule of criminal procedure ....”

In Phipson on Evidence 14^th Edition, at 5-14, the learned Author states:

“At the present day, in the absence of evidence, innocence of crime is usually said to be presumed by law; at all events the burden of proof is always cast upon the party asserting criminality. Its commission, when the question arises in a criminal case, must, however be proved not by a mere preponderance of evidence, but beyond a reasonable doubt.”

In Constantine Line v. Imperial Smelting Corporation^[1] Lord Wright stated that:

“The ordinary rule is that a man is not held guilty of fault unless the fault is established and found by the court.”

The issue for determination on this appeal point is whether the direction of the learned Magistrate traverses the presumption of innocence by shifting the burden of proof to the Appellant? In so far as the direction was issued for the purpose of assisting the court and the parties in the efficient conduct of the trial, I find nothing wrong or illegal about those directions. Any court is entitled to conduct a pre-trial conference for the purpose of maximising court time, resources and facilities and securing the efficient conduct of a trial. To that extent the actions of the court in asking defence to disclose the nature of defence in that pre-trial conference was not unlawful. Where the court over-stepped its mark was in imposing sanctions/penalties on the defence if they did not disclose their defence and other particulars at that particular point of time. The most that can be done is to request disclosures for purposes of assisting the efficient conduct of the trial but without prejudice to the right of the accused to remain silent or reserve his defence till close of prosecution case. If the accused chooses to remain silent and reserve his defence, and require prosecution to prove its case, then there is nothing further the court can do. No adverse inference can be drawn against the accused even if after close of prosecution case he then elects to give evidence and run a defence which had not been disclosed earlier on. It may draw some appropriate comment from the presiding Magistrate, but it cannot be used as the basis to prevent him from calling witnesses and running defence, which was the effect of the order of the presiding Magistrate in this case and possibly in the other case as well.

The presumption of innocence means that the accused does not have to prove anything. He can choose to say nothing at all. At the pre-trial conference he can simply say to prosecution prove your case! He can remain mute throughout trial and at the end of the day it is for prosecution to satisfy the court, beyond reasonable doubt, that it was the accused who committed the offence. If after hearing the evidence from prosecution and the court still is not satisfied so that it is sure it was the accused who committed the offence then it must acquit.

By requiring the Appellant to produce full and detailed particulars of his defence of self defence and by saying that if you do not comply with this direction, you will not be able to raise that in your defence, the court in effect is traversing that presumption of innocence and saying that the court will draw an adverse inference against you. In a way he is also saying to the Appellant that he is obliged to prove the defence that he has raised in the pre-trial conference; that is shifting the legal burden of proof to the Appellant when that was not required by law. The fact the Appellant had disclosed the nature of defence, i.e. self defence, which I consider to be sufficient in the circumstances, did not and cannot shift the burden of proof to the Appellant. Having raised self defence as his defence, this merely imposes an evidential burden on him to discharge; that there is sufficient evidence for the defence. Once sufficient evidence has been raised, prosecution still has the legal burden of negativing or disproving that defence^[2]. The legal burden of proof does not shift to the accused to prove self defence on the balance of probabilities. The accused merely has to raise reasonable doubt in the mind of the court regarding the application or relevance of that defence.

On the question whether requiring the Appellant to disclose particulars of what is “sufficient evidence” for purposes of the defence of self defence traverses the presumption of innocence, in my respectful view, this can be taken as far only as the accused voluntarily agrees to disclose. If he refuses he cannot be compelled to do so and no sanctions can be imposed by the court or any adverse inference drawn. An accused is entitled to refuse to disclose anything further from thereon.

The same applies to the direction regarding the charge of intimidation and the reliance on a claim of right in custom in which the learned Magistrate had directed that particulars be disclosed as to the nature and identity of that custom, which can be issued for purposes of the efficient conduct of the trial, but where there is default, cannot be used to refuse Appellant not to raise them in his defence later.

2. The common law principle of the right to silence.

The common law principle of the right to silence stems from the disputable presumption of innocence which can be rebutted by acts/evidence tending to show guilt^[3]. What this means is that an accused person can simply decline to say anything and that should not be held against him as connoting guilt. No adverse inference or assumption should be drawn on that basis. See also Cross on Evidence at 610 point 2315 referred to in the submissions of learned Counsel for the Appellant:

“The concern that then existed, and still exists, was and is to preserve the accused from prejudice in the form of any adverse supposition which may arise where that right is exercised.”

See also Petty and Maiden v. The Queen (1991) CLR 95 per Mason CJ, Deane, Toohey and McHugh JJ at page 2, referred to by learned Counsel for the Defendants, where it was pointed out as well that the right to silence should not be used to infer guilt as well as preclude the accused from adducing evidence relevant to a defence:

“That incident of the right to silence means that in a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial Judge or the Crown prosecutor, that an accused’s exercise of the right to silence may provide a basis for inferring a consciousness of guilt ... nor ... a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable.”

That right to silence however does not rule out appropriate comment in the discretion of the court in the light of evidence adduced by prosecution who bears the burden of proof throughout. That right to silence subsists throughout to trial of proceedings. In Petty and Maiden v. the Queen (ibid) at page 4 their Lordships pointed out that the right to silence extends to all court proceedings prior to the conduct of any trial.

“Evidence of a failure on the committal hearing to, ask a question, make a submission or avert to a claimed defence is not, of itself, so admissible. The right to remain silent applies to the conduct of a committal proceedings and silence maintained provides no basis for any inference against an accused.”

That right to remain silent seems to have been preserved right throughout to close of prosecution case. The accused is not obliged to disclose what his defence if any will be until after prosecution closes its case and the fact he does not disclose defence earlier cannot be used to prevent him from adducing evidence in his defence. The difficulty an accused may face though in taking such stand would be that it can make cross examination of prosecution witnesses difficult for his lawyer, unless he discloses to his lawyer what his defence or case will be so that cross examination can be conducted according to his version or assertion of facts. It is also pertinent to appreciate that even if disclosure is not made at an earlier stage, quite often it is possible to discern the defence of the accused during cross examination from the line of questioning being undertaken by his lawyer.

Sections 198 – 199 of the Criminal Procedure Code

The common law principle of the right to silence is reflected and preserved by statute in section 198 of the Criminal Procedure Code which provides inter alia, that at close of prosecution case, the accused can elect to remain silent, give evidence under oath or make an unsworn statement to court and or adduce evidence. That means the accused’s right to remain silent remains right through to close of prosecution case and is not obliged to disclose what his defence if any will be. And even at that point of time, he can still elect to say nothing. What this also means is that in not disclosing defence earlier, that cannot be used to prevent him from adducing evidence in his defence later because to do so may be inconsistent with section 198(2) of the Criminal Procedure Code, which provides that if the absence of a defence witness is not due to the fault or neglect of the accused and that such witness will probably give material evidence then the court may adjourn trial and issue process to compel attendance of such witness. Further, section 199 of the Criminal Procedure Code envisages the situation where new matter is introduced by the defence and where prosecution may be allowed to adduce evidence in rebuttal. Indirectly this section raises the possibility and recognises the fact that the accused may raise something new or a defence which had not been disclosed earlier and giving opportunity to the prosecution to adduce evidence in rebuttal. These provisions do not support the approach taken and directions issued by the learned Magistrate in the court below. The latter part of section 54 of the Magistrates’ Courts Act referring to the application of the law and practice for the time being observed in England in county courts, police courts and courts of summary jurisdiction may be invoked only where the law is silent; that is not the case here.

Section 10 of the Constitution

Section 10(2)(c) – (f) of the Constitution protects inter alia, the rights of the accused to be given adequate time and facilities for the preparation of his defence. He is entitled to be given the same assistance for the attendance and examination of his witnesses in court and interpretation if required. Paragraph 10(11)(a) of the Constitution on the other hand does provide that where the law imposes upon the accused in a criminal offence, the burden of proving particular facts, that will not be considered to be inconsistent with or in contravention of the presumption of innocence set out in subsection (2)(a). This provision is relevant where the law is clear but cannot be relied on to justify or support the directions or approach taken by the learned Magistrate in terms of the application of section 54 of the Magistrates’ Courts Act where the law as it applies to the practice and procedure of defence case is fairly clear. In this particular instance, where the directions of the learned Magistrate included a clause to the effect that the Appellant will not be able to rely on such matters not disclosed at the pre-trial conference, was clearly in breach of the current practice and procedure of criminal law in the country, paragraph 10(11)(a) cannot be relied on to justify such orders.

Conclusion

I am satisfied in the circumstances, the order of the learned Magistrate in so far as it purports to prohibit or restrict the rights of the Appellant in relying on any material he had not disclosed in his defence at the pre-trial conference was unlawful, in breach of common law principles and the Constitution of the Solomon Islands and must be quashed.

This case has not yet come to trial as such and therefore is to be relisted for hearing before another Magistrate.

Fred Tua v. Regina

The facts in Fred Tua’s case (“Tua’s Case”) are slightly different. The appellant had been originally charged with an offence of robbery contrary to section 76 of the Criminal Procedure Code (“CPC”). This was later dismissed and replaced with a charge of intimidation contrary to section 123(1) of the CPC. He entered a plea of not guilty and matter proceeded to trial on 8^th July 2004. At close of prosecution case, a submission of no case to answer was made. This was overruled and the defendant required to be put to his defence. On 3^rd November 2004 evidence was heard on a “voir dire” enquiry into the admissibility of certain documents which defence sought to tender as part of their case.

The defence case was that those documents relate to two agreements which were relevant to proving that there was in place an arrangement for the transfer of ownership of the vehicle to the appellant and relevant to the issue of ownership of the vehicle. The complainant on the other hand denied the existence of those two agreements. He maintained there was only one agreement. The learned magistrate held in his ruling that the documents were irrelevant and therefore inadmissible.

The Prosecution case is that the complainant is the owner of a toyota corolla vehicle registration number A6561 and the Appellant employed as a taxi driver. They say an agreement existed, which provided for the transfer of ownership of the car to the Appellant once certain earnings were achieved. They say that between 1^st February and 30^th April 2000, the Appellant in a drunken state threatened the complainant with a bush knife. The threat was made as the Appellant was angry over the state of arrangements between them. The complainant claims to have been in the company of his nephew, Lonsdale Usumae at the time of the incident.

The defence case on the other hand is that no such threat was made and that there were actually two agreements in existence, both completed by the Appellant which entitled him to ownership of the vehicle. It would seem that the Appellant takes the view that at the time of the incident the vehicle belonged to him. That the complainant engaged in sharp practice and the accusation was made to secure retention of the vehicle to which the Appellant was and is legally entitled.

The documents which the Appellant sought to rely on were those which he says relate directly to and confirm the existence of those two agreements. He had a witness, Bobby Waleferatelia who had receipt or custody of some documents. It is not clear if those documents were the actual two agreements or other documents (record book containing daily transactions and receipts of expenses etc.) pertaining to those two agreements but the Appellant says that those documents contain records of the income generated as well. In his evidence the complainant says that there was only one agreement and denies the existence of two agreements.

This application in essence is an appeal against that decision of the presiding Magistrate to refuse admission of those documents.

Similar grounds of appeal as relied on in Bitiai v. Regina have been relied on in this case. It is not necessary therefore to rehearse those grounds and the law in relation to them.

Application

In Fred Tua’s case, the order of the learned Magistrate in refusing to allow the defendant to adduce such evidence as is material to the determination of the case before him is a denial of his basic right to adduce evidence in his defence. In so far any suggestions may have been raised that there had been a lack of disclosure in relation to those documents earlier on in the trial may have been concerned, that cannot be used as a ground for denying him the right to raise them in his defence as there is no such requirement in law. The presumption of innocence and right to silence, the provisions of Sections 198 – 199 of the Criminal Procedure Code and section 10 of the Constitution apply to his case and uphold his rights to adduce evidence in his defence.

The guiding factor whether to allow defence to adduce evidence, documentary evidence, in this case, ultimately depend on questions of materiality or relevance to the issue or charge before the court. According to the evidence before this court, it would seem that those documents were relevant for purposes of determining whether two agreements were in existence and to determine the rights of ownership over the vehicle in dispute. Whilst their relevance may be limited in so far as the charge is concerned, questions of ownership over the vehicle at that appropriate time or point must surely have some bearing on the conduct or behaviour of the parties, if not in mitigation and in the least as to the state of mind of the Appellant at that time. For instance, if he believed, even if wrongly, that the vehicle belonged to him that at least is a factor which the court may be required to bear in mind in mitigation as a minimum.

I have had opportunity to peruse the records of evidence in the court below and observe that the issue of the existence of two agreements had actually been raised in cross examination of prosecution witnesses when it was put to PW1 that there were two agreements.

The relevance, applicability, effect and ramifications of that evidence if accepted by the court, is a matter for the learned Magistrate to determine at the end of the day. By excluding the evidence which this Appellant sought to adduce in his defence, the learned Magistrate acted prematurely and deprived the Appellant from adducing such evidence as was material in his defence. I am satisfied an error had been committed which would warrant intervention by this court and a direction to the effect that the ruling be quashed.

I direct that the matter be remitted to the same Magistrate for continuation of this case in the court below.

ORDERS OF THE COURT:

A. Ben Bitiai v. Regina:

1. Uphold appeal.

2. Quash order of the Magistrates Court dated 1^st November 2004.

3. Remit matter to the Magistrates Court at Honiara to be listed for trial before another Magistrate.

A. Fred Tua v. Regina:

1. Uphold appeal.

2. Quash order of the Magistrates Court dated 5^th November 2004.

3. Remit matter to the Magistrates Court at Honiara to be re-listed for continuation of trial before the same Magistrate.

THE COURT

ENDNOTES:

[1]. [1942] A.C. 154, 192; see also Emanuel v. Emanuel [1946] P. 115
[2]. See Lobell [1957] 1 QB 547.
[3]. Archbold Criminal Pleading Evidence and Practice 36^th Edition para. 1154