Regina v Bao [2007] SBHC 133; HCSI-CRC 181 of 2006 (24 October 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 181 of 2006

REGINA

-v-

BILLY BAO, RAMOSAEA AU AND SIRA

(Commissioner J Lewis)

Date of Hearing: 15 October until 23 October 2007
Date of Ruling: 24 October 2007

Henry Kausimae for the Crown
George Squier for the Accused Billy Bao and Paul Au
Ms. Faasau for the Accused Sira

RULING

Commissioner Lewis:

1 The accused stand jointly charged on Information dated the 6th March 2006 with the murder of James Kuki and the Accused Au has been charged in a second count in the Information with the offence of hindering the burial of a dead body. Section 134 of the Penal Code.

2 The Crown case was comprised of some 11 witnesses in person and the contents of 5 statements of witnesses tendered by consent and is closed. Each of the accused has submitted that the prosecution has not led evidence which is sufficient for any Court properly directed as to the law to find the accused guilty of the offence or offences charged.

3 I have concluded from the most comprehensive and helpful submissions of counsel that the submission made by counsel for the accused are valid. I shall shortly discharge the three men, first, however, I need to set out the reasons for dismissing the charges.

4 When the evidence intended to be led by the accused at trial in this jurisdiction has been presented and the prosecution has formally announced that the case against the accused is closed, any accused may submit that the evidence discloses no case against the accused. That right arises from the Criminal Procedure Act (Cap 6.) section 269.

5 A ruling as to whether there is a case to answer is not a final verdict but for the moment will bring proceedings to an end.

6 Much has been said about the test at law for whether a case has been made out. In Regina v Tome (unreported) Criminal Appeal case no 4 of 2004 (Court of Appeal) page 3, their Lordships there set out the test called for by section 269. "the test is whether or not there is "no evidence that the accused committed the offence. That must mean that if there is some evidence that the accused committed the offence, the case must proceed to final determination by the tribunal of fact." Their Lordships went on to add that internal and external inconsistencies in the evidence of witnesses when compared with the evidence of another or other witnesses are not relevant - the Court must take the evidence at its highest. When considering whether the prosecution has established a case to answer.

7 I take the evidence adduced here at its highest. I conclude that the evidence is insufficient to entitle a court which is properly directed are as to the law of the Solomon Islands to conclude that the accused are collectively or is individually guilty of the offences charged.

8 What began by way of a very strong opening address on the 15 10 07 by the Prosecutor as to what the prosecutor would prove has by today amounted to evidence which goes nowhere near proper proof of a case against of the accused men of either charge in the Information.

9 Next there is no satisfactory evidence that any one of the three men were present and active in the events leading to the death of Mr. Kuki or in any way caused or contributed to the death of Mr. Kuki. There is an absence of any satisfactory evidence of the proper identification of any one of them given by any witness on the Crown side who claimed to be in a position to identify any of the accused.

10 In the prosecution case taken at its highest, there is no evidence of identity of the accused men Au and Billy Bao. In an attempted identification of the accused men as being present at the scene of the appalling and cowardly acts of violence inflicted on the deceased, the ‘identification’ may be simply categorized as ‘dock identification’. Dock identification is sometimes disallowed. I allowed it to be admitted but it is weightless and worthless as evidence.

11 The proper forensic method to prove the identity of a person is through techniques such as identification parades and or photoboard evidence not by an unqualified assertion from a witness in a court room where the prisoners are compelled to be, seven years after the event. The witnesses here were not so much as asked by the prosecutor how they knew or recognised the accused, so that their claims of identification might be established.

12 Next, the prosecutor did not allege in his opening address allege that there was a joint criminal enterprise, that is, the three accused entered into an arrangement or understanding amounting to an agreement that the deceased man, one James Kuki was to be killed or maimed by the three acting in the furtherance of any agreement to do so. And see R v Tangye (1997) 92 A Crim R 545 per Hunt CJ at 556-557.

13 The fact of the accused being charged jointly on Information attracts the operation of sections 21 and 22 of the Penal Code (hereinafter the Code) and there is a need to consider just what the Crown case is, however in the opening address by the prosecutor it was not spelled out just what agreement was supposed to have been made between the three accused, or whether indeed, there was one. It should have been opened upon. It would have made the case much clearer, but, more importantly it would have been the basis for proving joint complicity if that is what the Crown case alleges.

14 Finally, and in stark contrast to the assertions in the opening address of the prosecutor, not one witness called by the prosecution gave evidence of the acts or the actors in the events immediately leading to the death of the late Mr. Kuki so as to fix responsibility for the acts to the accused men individually or collectively.

15 I conclude that there has been no evidence led by the Crown taken at its highest, from which a properly directed tribunal of fact may enter a conviction against any or each of the accused.

16 There is a secondary consideration advanced by counsel on which I make comment, that the Court might direct itself concerning what is commonly referred to as a "Prasad invitation". The Court is invited to enter a verdict of not guilty after close of the Crown case by reason of the fact that the evidence led by the prosecution, while disclosing a case to answer is so unsafe and so unsatisfactory that a verdict of not guilty may be entered at any time after the closing of the Prosecution case Prasad v The Queen (1979) 23 SASR 161. The application is not relevant since I am satisfied that there is no case to answer on either count 1 or 2. However, I would add that the technique is one which is properly available to a court in appropriate cases in this jurisdiction, immediately following a finding of ‘Case to answer’.

17 I formally find that there is no case to answer against any of the accused.

18 IT IS ORDERED THAT:

the accused be discharged.

THE COURT