PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Solomon Islands
You are here:  PacLII >> Databases >> High Court of Solomon Islands >> 2008 >> [2008] SBHC 44

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Kemakeza v Regina [2008] SBHC 44; HCSI-CRC 478 of 2007 (22 August 2008)

HIGH COURT OF SOLOMON ISLANDS


Criminal Case Number 478 of 2007


SIR ALLAN KEMAKEZA


V


REGINA


High Court of Solomon Islands
(Palmer CJ.)


Date of Hearing: 15th August 2008
Date of Judgment: 22nd August 2008


Pacific Lawyers (Billy Titiulu) for the appellant.
Rachel Olutimayin and Ricky Iomea for the respondent.


Palmer CJ.:


The appellant, Sir Allan Kemakeza ("the appellant") was convicted by the Magistrates Court on 2nd November 2007 on the following charges:


"Count 2: Demanding Money with menaces contrary to section 295 of the Penal Code (cap. 26).


Particulars of Offence: On May 24th 2002 did with menace demand of a person namely John Katahanas a thing capable of being stolen to wit a motor vehicle the property of Sol-Law Limited (known as Sol-Law Services).


  1. Count 3: Intimidation contrary to section 231(1) of the Penal Code (cap. 27).

Particulars of offence: On 24th May 2002 did intimidate a person namely Thomas Kama.


  1. Count 4: Larceny contrary to section 261 of the Penal Code (cap. 26).

Particulars of Offence: On 24th May 2002 did steal Toyota Motor Vehicles registration A9273 and A7058 the property of Sol-Law Limited (known as Sol-Law Services)."


He was sentenced on 6th December 2007 to a fine of $2,500.00 on each count and received a sentence of imprisonment of 5 months for each count. Three of the five months were suspended and so he was required to serve 2 months in prison.


He appeals against conviction on the following grounds.


GROUNDS OF APPEAL:


1. DEMANDING MONEY WITH MENACES


(1) That the learned Magistrate erred in law and in fact in convicting your Petitioner of the offence of DEMANDING MONEY WITH MENACES contrary to Section 295 of the Penal Code (Cap. 26) when:

2. INTIMIDATION


(2) The learned Magistrate erred in law in convicting your Petitioner of the offence of INTIMIDATION contrary to Section 231 (1) of the Penal Code (Cap. 26) when:


(a) there was no evidence before the learned Magistrate that:

(ii) there was a common intention by your Petitioner with other persons to intimidate THOMAS KAMA.


3. LARCENY


(3) The learned Magistrate erred in law in convicting your Petitioner of the offence of LARCENY contrary to Section 261(1) of the Penal Code (Cap.26) when:


(a) The Charge is defective in substance because:

4. (Count 2-DEMANDING MONEY WITH MENACES, Count 3-INTIMIDITATION, Count 4-LARCENY)


(4) In respect of Counts 2, 3 and 4, the learned Magistrate erred in law in convicting your Petitioner of all offences when:


(a) the learned Magistrate convicted the Appellant of all offences charged upon the evidence relevant to charges of counseling and procuring;


(b) the Charges did not contain Statement of Offences and Particulars of Offence so as to sufficiently inform the Appellant that the Appellant was being charge and tried on the basis that the Appellant counselled and or procured the offences.


(5) The learned Magistrate erred in law and in fact when he placed too much weight on the evidence of the prosecution witnesses when, having found that your Petitioner having given evidence in a calm and dignified manner, and having accepted your Petitioner’s demeanor, nevertheless wrongly rejected your Petitioner’s evidence on the assumptions that:


(a) the fact that your Petitioner ignored the letter from Bennedict Idu was evidence of guilt on the Petitioner’s part in procuring and counseling the Principal offenders;

(b) the principal offenders were not capable of acquiring knowledge of the Sol-Law and NBSI matters apart from receiving such knowledge from the principal offenders.

Ground 1. Demanding money with menaces.


Under this first ground five reasons were given why it was alleged the learned Magistrate erred in law and in fact in convicting the appellant of the offence of demanding money with menaces contrary to section 295 of the Penal Code.


Mr. Titiulu submits that the particulars of the offence on the charge sheet did not particularize the offence described in the statement of offence.


Secondly, he says the charge sheet is bad for duplicity because the statement of offence and the particulars disclosed two possible offences namely; the offence of demanding money with menaces, and the offence of demanding a motor vehicle with menaces.


Thirdly, he says the statement and the particulars do not contain sufficient particulars to sustain a charge of demanding money with menaces because (i) the value of the money was not particularized therefore there was no property or thing capable of being demanded; (ii) the particulars of the charge supporting the statement of offence did not contain the particulars of the description of the owner of the money allegedly demanded.


Fourthly, the statement of offence did not contain any details of the offence of demanding a motor vehicle with menaces so as to particularize and be consistent with the particulars stated in the charge sheet.


Finally, it is argued the charge is defective in substance and in form.


Mr. Titiulu, submits that whilst the statement of the offence referred to a demanding money with menaces, the particulars referred instead to the demanding with menaces of a motor vehicle from John Katahanas.


Mr. Titiulu relies on section 10(1) of the Constitution which provides that where a person is charged with a criminal offence, that he shall be afforded a fair hearing within a reasonable time. He cites the case of Paroke and Kuper v. R.[1] in which his Lordship Sir John Muria ACJ, had stated that the principle of fair hearing included the requirement that an accused person must know with certainty what was alleged against him. Mr. Titiulu submits that in this instance, due to the defect or the difference in the wording of the charge in count 2 with the particulars of the offence, that the appellant did not know for certain what was alleged against him. Learned Counsel pointed out that it is the responsibility of prosecutors to check the wording of charges carefully to ensure they comply with the relevant statute[2]. He also points out that it is the duty of the court to ensure that the charges have been filed according to the requirement of the law and that they are stated in a way that an accused understands the charge he is faced with. Learned Counsel however also concedes and rightly so, that where defence considers that the wording of a charge is defective, that they should state in sufficient detail the defect.


Learned Counsel also relied on the comments of Ward CJ in Stanley Bade v. R.[3] in which his Lordship pointed out that it is also a courts duty not to perpetuate an injustice that may have been brought to its attention on appeal. If the charge is bad, it should be corrected. His Lordship pointed out that it would be unfair on an accused if through the failure of his counsel, he was denied a fair trial.


Mr. Titiulu also cited section 117 of the Criminal Procedure Code which provides that offences are to be specified in the charge or information with necessary particulars which will provide reasonable information as to the nature of the offence charged.


In their response to ground 1(a), Ms. Olutimayin concedes that the statement of offence incorrectly described the offence in the charge sheet. However, she submits that no prejudice had occurred to the appellant as a result thereof. She submits it was a typographical error which had unfortunately not been picked up and the words "demanding money with menaces" should have read "demanding anything capable of being stolen". Learned Counsel relied on the comments of the learned Authors in Archbold Criminal Pleadings, Evidence and Practice[4] which stated that a conviction will not necessarily be rendered unsafe merely because of some drafting or clerical error, omission, discrepancy or departure from good or prescribed practice. Learned Counsel points out that the particulars of the offence were so explicit and clear that it made up for the error in the statement of the offence. The particulars disclosed the appellant demanded something capable of being stolen, a motor vehicle. It also gave sufficient information to him of the offence for which he was charged. Learned Counsel submits that the particulars of the offence were established through the evidence produced by the crown and supported a conviction for the offence of demanding something capable of being stolen, to wit two vehicles. Learned Counsel submits that there are three questions that must be asked in respect of this matter. Did the error affect the appellant’s understanding of what he is charged for? Did it affect the way his trial was conducted and did it affect the conclusion reached by the learned trial magistrate?


Ms. Olutimayin submits the error did not affect any of these matters because the particulars of the offence showed that the appellant demanded a motor vehicle. The evidence also adduced by prosecution showed that the offence was about the demanding of a motor vehicle and not money. She pointed out that defence did not submit a no case submission that the charge was defective or at any time take objection to the charge in the lower court. Learned Counsel then went on to cite the same case, Bade v. Reginam[5] relied on by defence counsel, to point out that although the learned Judge, Ward CJ had found that the charges were bad and ought to have been amended before plea was taken, he declined to have them quashed on the grounds that the court records showed that the prosecution had outlined facts for each offence that clearly demonstrated the offence of burglary and in each case the facts were admitted by counsel on behalf of the appellant in that case. Section 293 of the Criminal Procedure Code gives discretion to the court notwithstanding that the appeal may have been decided in favour of the appellant, to dismiss it if it considers no substantial miscarriage of justice has actually occurred.


Learned Counsel also cited the case of R. v. Power[6] in which the appellant in that case had argued that the indictment was defective and should be quashed because of a failure to comply with rule 5 of the Indictment rules 1971, and as a result the wrong offence had been alleged.


The court held:


"The offence was, however, accurately described in the particulars. At the trial an objection was taken to the statement of offence as it was worded, but the objection was over ruled. On appeal it was contended that the indictment disclosed no offence, and that the conviction should therefore be quashed. But seeing that the particulars accurately described the offence, it was clear that the accused were not prejudiced or embarrassed at all, and this court, holding no substantial miscarriage of justice had occurred, applied the proviso".


The court went on to say at page 7:


"Clearly there was in this case an unfortunate error which amounted to a material irregularity within section 2(1)(c) of the Criminal Appeal Act 1968. But to suggest that there has been the slightest miscarriage of justice as a result is quite absurd."


Ground 1(a) statement of offence not particularized.


A number of issues arise from appeal ground 1(a). The first issue is whether the Constitutional provisions of fair hearing in section 10(1) have been breached as alleged by the appellant in that the allegations were ambiguous. The second is whether the defect or irregularity in the wording of the charge sheet amounts to a material irregularity and therefore in breach of the requirements of sections 117 and 120 of the Criminal Procedure Code and caused an injustice to the appellant in that he has been denied a fair trial.


It has not been denied by the Crown in this case that the charge for demanding money with menaces was defective or irregular. The Crown’s case however, is that the allegations with which the appellant was required to meet were not ambiguous or uncertain.


I could not agree more with this submission. There has been no suggestion whatsoever before me that the appellant was confused, uncertain or unsure as to what was the charge he had to meet in his defence in this case. It has never been denied that the particulars of the charge did spell out in very clear and plain terms what offence the appellant was up against, what offence had been preferred and what prosecution was required to prove. The evidence adduced by prosecution and submissions made were entirely consistent with the particulars set out in the charge sheet; that of demanding a thing capable of being stolen, to wit a motor vehicle. He was convicted also of that offence and not on the erroneous and non-existent charge of demanding money with menaces.


There has been no suggestion whatsoever that the appellant had been misled to believe that throughout his trial he was being arraigned for anything other than a charge for demanding with menaces a thing capable of being stolen. Had he been confused, he would have raised it at the outset. Had he been confused, he would have challenged it at the close of prosecution’s case with a submission of no case to answer. He did not and there is only one conclusion to this, that at no time throughout his trial he was under any illusion as to the particular charge he was up against.


It was not the case that he had been charged under the wrong section, section 295 of the Penal Code. The error was in the wording or misdescription of the statement of the offence; instead of writing the words "demanding with menaces a thing capable of being stolen, to wit a motor vehicle...", the words "demanding money with menaces" were used instead. I am not satisfied therefore it has been shown that the error caused any ambiguity to the appellant and thereby a breach of the Constitutional provisions (section 10(1) ) on fair hearing.


Mr. Titiulu next submits that the appellant had been prejudiced by the fact that had the statement of offence and particulars of the charge supported each other the appellant may have pleaded guilty and received credit in mitigation. The submission sought to be put to this court is that the appellant did not know what he was being charged with at the outset and thereby was prejudiced.


The material before this court however could not be clearer. From the outset it was made very clear and plain to the court and the appellant, in submissions as well as the evidence adduced, that the charge preferred against him related to the raid committed on the Sol-Law Offices by Moses Su’u, Chris Mae, Benedict Indu and James Tatau. It is also a well known fact that that raid did not at any time involve the demand for any money but the demanding and taking of motor vehicles belonging to Sol-Law. It was also a non-issue at the trial in the court below of the fact of commission of those offences by Su’u, Mae, Indu and Tatau.


In the closing submissions of prosecution for instance, at page 1 paragraph 4, the charge was described as:


"Demanding with menaces things capable of being stolen."


The document then cites the correct section, being section 295 of the Penal Code.


At paragraph 10, the case of the prosecution was again stated in very clear and plain terms; that it was about the part played by the appellant in respect of the offences committed in relation to the Sol-Law matter.


Further, in the closing submissions of defence, at page 1 paragraphs 4 and 5, there was no confusion about their understanding as to what the charges were about. They knew what the prosecution case was about:


"At about 11.00 am on the 24th May 2002 Chris Mae, Indu and James Tatau and ors attended Sol-law and made demands for the keys of the vehicles. This was refused. Around 4:30 pm later on a group returned and stole two Toyota Hilux belonging to Sol-law. Later on 2 cars went to Katahanas residence and took the boys to the third vehicle.


Essentially, it is the prosecution contention that the raid on Sol-law was the direct result of the counseling and procuring by the defendant Sir Allan Kemakeza for thee(sic) offences to be committed."


The court below was also under no misapprehension in its mind as to what charge the appellant was up against. This is confirmed by the fact that in its reasons for decision, the learned Magistrate described Count 2 as: "Demand thing capable of being stolen with menaces s. 295 Penal Code."


I do not see how the appellant can now say that he had been prejudiced and not given opportunity to enter a guilty plea at the outset or at any time throughout the trial.


I am not satisfied too it has been established in this appeal that the error was a material irregularity and therefore fatal to the validity and question of fairness of the trial of the appellant. The crucial question that must be asked is whether the error or defect amounted to an error of law such that the indictment must be quashed. In R. v. McVitie[7], the Court of Criminal Appeal drew a distinction between an indictment which was bad in law because it disclosed no offence and an indictment which was merely defective in that it described a known offence, with incomplete particulars.


I am not satisfied the error complained of amounted to an error of law and therefore bad in law and ought to be quashed. Rather, I find the information to be merely defective in that it only referred to the wrong thing in the statement of offence; otherwise the particulars of offence accurately described what the offence was about.


But even if there was a material irregularity, the question which this Court needed to consider is whether the appellant had been prejudiced or embarrassed by the indictment such that a miscarriage of justice had occurred. In the case of R. v. Power[8], despite finding that an unfortunate error which amounted to a material irregularity had occurred, the Court of Appeal declined to quash the indictment on the grounds that no miscarriage of justice had occurred. The Court there applied the proviso in section 2(1) of the Criminal Appeal Act 1968, which provided that the Court may notwithstanding that they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice had actually occurred.


We have a similar proviso in section 293(1) of the Criminal Procedure Code.


In Miller and Hanoman[9], which was quoted with approval in McVitie[10] and Power, the Court of Appeal applied the proviso in spite of the fact that the indictment disclosed no offence in the statement of offence, on the grounds that the particulars accurately described the offence and it was clear that the accused were not prejudiced or embarrassed at all. The Court was satisfied no miscarriage of justice had occurred in that case and declined to quash the indictment.


In the appellant’s case, I am not satisfied it had been demonstrated before me that he has been prejudiced or embarrassed in any way by the defect. While the statement of offence contained a material irregularity, to use the description in Power[11], the particulars accurately described the offence and it was clear to me that the appellant was not prejudiced or embarrassed at all. As amply demonstrated throughout the trial, there was no misunderstanding, confusion or uncertainty on the part of the defence or the court as to what the case was all about. And so, even though there was an irregularity or a defect in the information, I am not satisfied there has been the slightest miscarriage of justice in this case. This ground must be dismissed.


Ground 1(b) charges bad for duplicity.


The submission by appellant on this point is that the charge is bad for duplicity in that two possible offences have been disclosed; (i) the offence of demanding money with menaces, and (ii) the offence of demanding a motor vehicle with menaces. In his oral submissions Mr. Titiulu says that the offence of demanding money with menaces discloses an offence under section 294 of the Penal Code.


Ms. Olutimayin on the other hand submits that no duplicity of charges was disclosed in the charge sheet. She points out that section 294 referred to by Mr. Titiulu relates to offences created by the uttering of a letter or writing and is clearly different to the offence envisaged in this case. There is only one charge that of demanding with menaces under section 295. The only error is in the wording, instead of "a thing" the word "money" had been inserted.


I accept submissions of learned Counsel, Ms. Olutimayin on this point, that the charge did not disclose two possible offences. The distinction pointed out by Ms. Olutimayin regarding the application of section 294 of the Penal Code is correct. If money was the subject of the demanding with menaces, then section 295 remains the correct section to be charged under. The only difference is in the wording to be used. As correctly pointed out, the insertion of the word "money" was a misdescription and had been erroneously used instead of the word "a thing".


But even if two offences were disclosed in the charge sheet, I am not satisfied it had been shown on this appeal that the appellant was ever misled, confused or under any illusion as to what he was up against at the trial. The particulars expressly stated the offence he was up against and therefore I am not satisfied any prejudice had been caused or any miscarriage of justice had occurred. This ground must be dismissed.


Ground 1(c) Value and ownership of money not particularized.


Under this ground the appellant submits that because the value and owner of that money was not particularized there was no thing or property capable of being demanded and therefore the charge is defective.


Ms. Olutimayin however reiterates that there could not have been any descriptions of the value and ownership of the money because that was never the charge that was envisaged; it was erroneously used. The correct charge was that which had been described in the particulars all along. She also referred to section 120(c)(ii) of the Criminal Procedure Code which makes provision for the wording of a charge or information where the property is jointly owned. This section provides inter alia that it shall be sufficient to describe the property by a collective name where ownership is vested in a number of persons, as in this case where the collective name of Sol-Law had been used.


I am satisfied this ground must also be dismissed as disclosing no error. I accept submissions of Ms. Olutimayin on this matter as providing the correct explanation in law to the issue raised in this appeal.


Ground 1(d) Particulars of offence not disclosed in the statement of offence.


I am not satisfied this ground raises any new issue other than that which had been canvassed in this judgement. The reasons given in ground 1(a), (b) and (c) are equally relevant to the issue raised in this ground and it is not necessary to repeat them here. This ground must also be dismissed.


Ground 1 (e) The charge is defective in substance and form.


The appellant relies on the same grounds raised earlier on about the defect as breaching the requirements of sections 117 and 120 of the Criminal Procedure Code and therefore defective in form and substance.


Ms. Olutimayin submits that the charge is neither defective in substance or form. While an error has been conceded, she submits the crucial question must be whether the defect has caused prejudice or embarrassment to the defence[12] and therefore amounted to a miscarriage of justice. Learned Counsel relied on the case of R. v. Ayres[13] in which the appellant had been charged with the common law conspiracy to defraud when he should have been charged with conspiracy to obtain by deception contrary to section 1 of the Criminal Law Act 1977. While it was conceded that he had not been accurately charged, the Court decided not to quash the conviction on the basis that the misdescription of the offence in the statement of offence did not in the slightest have any practical significance to the trial and concluded that there was no miscarriage of justice.


The issue which arises in under this ground is basically the same issue which has been canvassed thoroughly under ground 1(a) and it is not necessary to repeat what has been stated in that appeal point. Suffice to point out that the House of Lords in Ayres[14] approved the approach taken in McVitie[15] and Power[16] that where it is clear the defect has not caused prejudice or embarrassment to the appellant, the court has discretion to dismiss the appeal on the basis that no miscarriage of justice has occurred. I pointed out earlier on that this court has similar power in the proviso to section 293(1) of the Criminal Procedure Code, that it may ‘notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.’ This ground must also be dismissed on the same basis.


Ground 4. Failing to include counseling and procuring in the statement of offence and particulars.


There are two parts in this ground of appeal. The first part is that the learned Magistrate erred in law when he convicted the appellant of the actual commission of the offences he had been charged and convicted of when the evidence before the court was based entirely on that of a counselor and procurer. The second part is that the court erred in accepting the charge when the charges did not specify in the statement and particulars that he was being charged as a counselor and procurer.


Mr. Titiulu submits that if the prosecution had intended to charge the appellant as a counselor and procurer under section 21(d) of the Penal Code, then they should have included these in the wording of the charge. He says that by omitting to do so, had caused uncertainty and resulted in an unfair hearing.


Ms. Olutimayin denies that any error was committed in the omission of the use of the words "counsel and procure". She relies on the express wording of that provision which provides that a counselor and procurer may be charged with actually committing the offence and the fact that it was not expressly described in the charge sheet is not fatal to the validity of the charge which the appellant had to meet. Where there is evidence of counseling and procuring, the learned Magistrate is obliged to consider that evidence and decide whether to convict or not.


The two parts raised are directly linked to each other. The issue which arises in this appeal ground is whether the charge is bad in law because of the omission of the words "counsel and procure"? Is there a statutory requirement as asserted by learned Counsel for the appellant?


The answer to the question posed can be found in the express provisions of section 21. It in essence provides that any person who counsels or procures any other person to commit the offence may be charged with actually committing it. It then goes further to make specific reference to paragraph 21(d), and provides that he may be charge either with committing the offence or with counseling or procuring its commission.


If we look at the situation as it prevailed in England, we will also find that the position is similar. They have the Accessories and Abettors Act 1861, at section 8 which provides that an accessory[17] ‘shall be liable to be tried, indicted, and punished as a principal offender’. The learned Authors in Blackstone’s Criminal Practice[18] point out that the distinction between an accessory and a principal offender in many cases is of little importance.


"Indeed a person charged as a principal may be convicted even though the real case against him was that he was an accessory, ...."


They however went on to point out that it would be preferable that the particulars of the offence be drawn ‘in such a way as to disclose with greater clarity the real nature of the case that the accused has to answer’.[19] Conversely, an accused charged as an accessory can still be convicted by the court if it thinks that the real basis of liability is as a principal.


The express provisions of section 21 and authorities make clear that no error of law is committed in this case where the appellant had been charged as a principal in the lower court but convicted on the evidence as a counselor and procurer of the commission of those offences. I do not need to repeat what I have stated earlier on in this judgement, regarding the certainty and clarity of the position taken by prosecution from the beginning in respect of this case; that is to prove that he counseled and procured the commission of those offences. This ground must be dismissed.


Ground 2 Evidence of intimidation.


The appellant alleges under this ground that there is no evidence that the appellant possessed the necessary intention to intimidate Thomas Kama and formed no common intention with other persons to intimidate him either. This ground appears to have been raised on the basis that the appellant had been charged with the actual commission of those offences and not as counselor or procurer.


To that extent my decision on ground 4 of the appeal is relevant to the appeal point raised here, that the case by prosecution is that of counseling and procuring the commission of the offence of intimidation under section 21(d) of the Penal Code. When seen in that light, I do not see how this appeal point can be sustained as there is no dispute in the facts of this case at trial that the offences alleged in counts 2, 3 and 4 were committed by Su’u, Mae, Indu and Tatau. At page 3 of his decision the learned Magistrate stated he was satisfied beyond reasonable doubt that Su’u, Mae, Indu and Tatau jointly carried out the raid on the offices of Sol-Law on the morning of 24 May 2002 and in so doing the offences constituting counts 2 and 3 were committed. He then identified the crucial issue for determination in the matter before him as follows:


"What remains to be determined is whether the Crown has proved beyond reasonable doubt that the accused counseled or procured Indu, Mae, Tatau, and Su’u (who pleaded guilty to the Sol-Law raid although he was not present when the offences were committed) to commit the offences."


Ms. Olutimayin has highlighted in her written submissions from paragraphs 35-48 all the relevant evidence which supports the case for the prosecution that there was ample material before the court below to making a finding of guilty on the grounds of counseling and procuring. I cannot agree more with her submissions on this matter. I fail to see how this appeal point can be sustained and must be dismissed.


Ground 3 That charge of larceny is defective because it only dealt with the punishment section under section 261 and did not include the definition section 258(1) of the Penal Code.


The argument raised by the appellant in respect of this appeal point is similar to the arguments raised in ground 1 of the appeal. The thrust of the appellant’s submission is that the omission of the definition section (s. 258(1) ) amounted to an error of law which fatal to the validity of the charge and should be quashed.


The same arguments raised in ground 1 must also apply to this case.


The error committed in respect of the statement on the charge is the omission to include the definition section of the offence of larceny, being section 258(1) so as to be read with the punishment section, being s. 261 to give a complete picture of the section that the appellant has been charged with. Apart from the omission, the statement of the offence stated correctly the offence for which the appellant was being charged with; namely larceny of two motor vehicles.


So while there was a defect by way of an omission of the definition section, I do not see how it can be argued that the appellant was prejudiced or embarrassed by the omission. I wouldn’t go so far as to describe it as a material irregularity; may be an irregularity but it cannot be sufficient so as to make the charge bad in law.


The case of Regina v. Jacob Waipage[20] simply reinforces the point that the amendment was made when picked up by the court to make the charge complete and not so much because of defect. The point is that even if as in this case such an amendment was omitted, the basic question which need to be asked is has the defect caused embarrassment and prejudice to the appellant? The particulars of the offence removed any doubt or uncertainty as to what the appellant was being charged for. Further, I am not satisfied any miscarriage of justice had occurred in respect of this charge and accordingly this appeal point must also be dismissed.


Ground 5. Placing too much weight on the evidence of prosecution witnesses.


Under this ground the appellant submits that by placing too much weight on the evidence of the prosecution witnesses he wrongly rejected the appellant’s evidence on the assumption that (a) the fact he ignored the letter of Benedict Idu was evidence of a guilty mind and (b) the principal offenders were not capable of acquiring the knowledge regarding Sol-Law and NBSI matters apart from receiving such knowledge from the principal offenders.


The issue of weight is a matter in the discretion of the trial judge or magistrate. Unless it can be shown that he has exercised that discretion wrongly by taking into account extraneous or irrelevant matters, ignoring relevant matters or some material consideration, or mistakes the fact[21], this court will not interfere.


The fact the appellant gave his evidence in a calm and dignified manner does not necessarily mean that his evidence is to be believed. Issues of belief and credibility are matters for the trial magistrate to determine. Unless it can be shown that there is no basis or material for such finding, the court will not interfere. In his assessment of the appellant’s evidence it is important to bear in mind that the learned Magistrate not only had opportunity to consider his evidence and demeanour in court but also to hear the evidence and demeanour of all other witnesses that appeared, including defence witnesses and prosecution witnesses that had turned hostile in court. He was then able to consider their evidence carefully before making his findings. In so doing he arrived at the conclusion that in his view the evidence of the appellant was inconsistent with the surrounding evidence. I find nothing wrong about such conclusion. There is material before him on which he was entitled to make such finding.


The learned Magistrate then went on to assess the evidence about the knowledge that the principal offenders had acquired about the Sol-Law and NBSI connection and accepted that this indeed came from the appellant. Again there is material on which he was entitled to draw such inference from. This included the several meetings which took place between him and the principal offenders over which the Sol-Law issue was alleged to have been raised and discussed on those numerous occasions.


On the issue of the letter received from Benedict Idu again the views of the learned Magistrate were conclusions made as a result of the evidence and his assessment of the response of the appellant to such a letter in the normal course of events. He formed the view that the response of the appellant was extraordinary. He then concluded that the actions of the appellant in filing the letter away without doing anything about it more consistent with guilt than innocence. He also formed the view that the appellant’s testimony lacked credibility. Was his finding without foundation or baseless? In my view there is material before him to make such a finding. The letter for instance according to the evidence had been written well before the Regional Assistance Mission to Solomon Islands ("RAMSI") arrived in the country. There can be no suggestion therefore that the letter was written to get him into trouble simply because of the arrival of RAMSI in the country.


It is important to bear in mind that this evidence was not the only the evidence or material before the learned Magistrate. There were other clear and direct evidence he also had opportunity to consider and to contrast these including the evidence of those who had turned hostile and assess their credibility. His assessment of the evidence has not been shown to contain any errors of law and accordingly must be dismissed.


The appeal accordingly must be dismissed and the conviction by the court below upheld.


Orders of the Court:


  1. Dismiss appeal.
  2. Uphold orders of conviction entered by the Magistrates Court.

The Court.

[1] Criminal Case No. 21 of 1992 (unreported) at page 2.
[2] R. v. Austin Yam Criminal Appeal Case No. 33 of 1994 (unreported) at page 20.
[3] HCSI-CRAC 37 of 1988 (1988) SILR Vol. 7 at pages 123 and 124
[4] 2006, pp 7-78
[5] [1988] SBHC 10; [1988/1989] SILR 121 (21 December 1988)
[6] (1978) 66 Cr. App. R. 159 CA,
[7] (1966) 44 Cr. App. R. 201
[8] (1978) 66 Cr. App. R 159, CA
[9] [1959] Crim.L.R. 50; The Times, November 11, 1958.
[10] (1960) 44 Cr. App. R. 201; [1960] 2 Q.B. 483;
[11] (ibid)
[12] Blackstones Criminal Practice, 2005, pp D10.40
[13] [1984] AC 447
[14] (ibid)
[15] (ibid)
[16] (ibid)
[17] An accessory is one who aids, abets, counsels or procures the commission of an offence; see Blackstone’s Criminal Practice 1992, p. 63
[18] (ibid)
[19] per Lord Hailsham of St. Marylebone in Director of Public Prosecutions for Northern Ireland v. Maxwell [1978] 1 WLR 1350 at p. 1357D.
[20] HCSI-CRC 45 of 1996
[21] House v. The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ (at 505).

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2008/44.html