Regina v Baeoro [2010] SBHC 32; HCSI-CRC 308 of 2008 (16 July 2010)

HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

(Mwanesalua, J)

Criminal Case No. 308 of 2008

REGINA

V

CHRIS BAEORO AND MICHAEL WANMAN

Date of Hearing: 24, 25, 28, 29 and 30 June, and 1, 2, 5, 6 and 8 July 2010
Date of Ruling: 16 July 2010

Ricky Iomea for the Crown
Robert Cavenagh and Wayan Ghemu for Chris Baeoro
Makerata Waqavonovono and Behan Ifuto’o for Michael Wanman

RULING ON NO CASE TO ANSWER SUBMISSION

Mwanesalua, J: Chris Baeoro and Michael Wanman are jointly charged with the murder of Frank Parahu ("the deceased") on 16 December 2007, in Honiara, under section 200 of the Penal Code. At the close of the evidence for the Prosecution, Ms. Waqavonovono made a submission of no case to answer for Wanman on the following grounds: (1) There was no evidence to prove beyond reasonable doubt that Wanman murdered the deceased; (2) The prosecution evidence is not capable of proving beyond reasonable doubt that Wanman is guilty; and (3) The purported evidence of any involvement of Wanman in the death of the deceased is so lacking in weight and reliability that a conviction would be unsafe. Wanman should therefore be acquitted of murder at this stage.

Prosecution Evidence

There were twin towers (flats) near the sea opposite Town Ground in Honiara on the date of the offence. The first was situated close to the Main Road while the second one was located some distance away to the sea. They were both demolished before the trial in this case commenced.

Michael Maeile arrived at the first flat sometime between 3 am and 4 am on 16 December 2007. He went to the first floor to visit his boy friends but they were all asleep. He however saw two girls there still awake. He and the girls came out of the flat as the girls wanted to smoke. The deceased arrived by taxi when they were standing at a market stall where they were going to buy tobacco and paper. The deceased came out of the taxi and told Maeile that he came from Aloha Night Club, and that he was hungry. The deceased walked to another market stall and bought fish with cassava. He ate the fish but it was too salty. He gave the food to Maeile who ate some of it and gave the rest to the girls. The deceased said he wanted to drink water and walked to the seaside in the direction of the second flat where he was living at the time.

There was a group of boys sitting down at a concrete slab close to first flat when the deceased left. They wanted to argue with Maeile so he and the girls went back into the flat. Maeile heard one of the boys asking for a person named "Eric". Maeile heard one of the boys responded by shouting out saying, "Iu go, there is no Eric here". Maeile also heard Baeoro’s voice while he and the girls were walking up the stairs to the top floor of the flat. Maeile knew Baeoro for sometime before that night.

In his evidence Eric Fugui says that he knows the deceased. They lived in the second flat close to the first flat in 2007. He is related to Baeoro and they come from Forau village. In the early morning of 16 December 2007, the deceased woke him up from his sleep. The deceased told Fugui that boys from his area demanded compensation from him. They both left to the front of the first flat to see the boys. There were about six of them including Baeoro. Baeoro argued with the deceased and punched him. The fight moved towards the garage within the vicinity of the first flat. Baeoro and the boys then chased the deceased towards the main road. Fugui did not know the boys except Baeoro.

Steward Auriu’s evidence is that he went to the moonlight night club some distance away from the flats after midnight on 15 December 2007. The club closed at 2 am and he left the club at 2.45am. He went to one of the market stalls near the cement slab infront of the first flat and bought paper and tobacco from a woman. He saw boys sitting in front of that stall. That area was lit up by candles and hurricane lamps from the stalls, and a spot light from the entrance to the first flat. While he was sitting down smoking, he saw the deceased arrived. The deceased asked the boys what they wanted from him. Auriu saw one of the boys punched the deceased on his right cheek, while another boy punched his neck. He was sitting about two metres away when he saw the deceased being punched. He saw the fight moved towards the garage. He then saw the boys chased the deceased to the main road. One of the boys, who had assaulted the deceased shouted out. The boy said his name was "Chris".

Rose Waitahi’s evidence is that she used to live in the first flat before 15 December 2007. She used to see Wanman come to the flat to visit his one-talks. She also knew the deceased who lived at the second flat. On the night of 15 December 2007, she left the first flat at about 11pm to the Moonlight Night Club to dance. On her way to the club, she saw Wanman, Baeoro and other boys drinking Kwaso infront of the first flat. She came back to the flat to buy saratonga beer when the Moonlight club closed. She saw a group of boys surrounded the deceased. She saw some of them kicking and punching the deceased. She stood at a distance of about 7 metres away when the fight. She saw Wanman hit the deceased’s head with an unidentified object. She also saw Baeoro punched the deceased on the face. The boys then chased the deceased towards the main road. She saw the deceased’s body at the hospital during day time on 16 December 2007. A week later, she and another girl went with Wanman to the Botanical Garden for a swim. She saw a screw driver with him. When they returned to the first flat afterwards, Wanman told her that the Screw driver with him was the one he used to kill the deceased.

Francis Noliasi’s evidence is that he was at the garage area when the boys fought the deceased infront of the first flat. Out of those boys he was only able to recognize Baeoro and Wanman. The fight then moved close to his stall where the deceased fell to the ground. The deceased stood up and the boys chased him towards the main road. He walked behind the boys and saw Baeoro stabbed the deceased with a knife. He was about 10 metres away when he saw the stabbing. He saw the stabbing from the light of two vehicles which passed each other on the main road. Baeoro and the other boys then left the deceased and returned to the market stalls.

Maeile heard shouting outside the flat where the boys were sitting when he was in the flat. He heard many voices saying "kill that man, Killem". He looked down and saw the boys running to the main road. Maeile could recognize Baeoro running ahead of the boys who were chasing the deceased. Not long afterwards, the boys returned to the vicinity of the first flat but not the deceased. Maeile and Gabby went out to check the deceased. They found him lying near the main road. They poured water over him and saw blood running out from his forehead and nose. The deceased was taken to the Hospital but died.

The Law

Counsel for Wanman made a no case to answer submission under section 269 (1) of the CPC and asks this court to acquit Wanman on the basis of no case to answer. The grounds in support of that submission are set out in paragraph I of this ruling. In R v Tome, Criminal Appeal No. 4 of 2004, the court stated, "The test called for by S 269 (1) 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".

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

The authority on this issue in this jurisdiction is R v. Tome, criminal appeal case no. 4 of 2004 as applied and restated in R. v Saomae, criminal case no. 3 of 2004, where the court said – "As is made clear by cases such as Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, inconsistencies in evidence (whether within the testimony of a witness or between witnesses) are not relevant at the no case stage. The court must taken the prosecution evidence at its highest and that means accepting the evidence most favourable to the prosecution when determining whether the accused has a case to answer. The test is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty".

Conclusion

The most favourable evidence from the prosecution against Wanman at this stage of the proceedings is that Waitahi saw Wanman hit the deceased’s head with an unidentified object when the fight began at the front of the first flat. Noliasi also saw Wanman fought the deceased. He was also involved in chasing the deceased to the place he was stabbed by Baeoro. The medical report on the deceased shows that the deceased had an open wound, 15 x 11mm on his forehead. Waitahi and Wanman went for a swim at the Botanical garden a week after the deceased’s death. He had a screw driver. On their return to the first flat, Wanman admitted that he killed the deceased with that screw driver.

Wanman has a case to answer in view of this evidence. I order accordingly.

THE COURT