Regina v Kwan [2011] SBHC 20; HCSI-CRC 324 of 2008 (14 April 2011)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 324 of 2008

Regina

-v-

Dr. Willy Kwan

HEARING: 17 December 2010
JUDGEMENT: 14 April 2011

Ronald Bei Talasasa (Jnr) for the Crown
Rodgers Tovosia for the Appellant

Palmer CJ.

This is an appeal by the Crown against the order of the Magistrates'' Court to acquit the Respondent on a charge of common assault.

There was only one ground of appeal which averred that the presiding Magistrate erred in law and in fact when he acquitted the respondent by disregarding the evidence that pointed to the proof of the charge against the respondent. The thrust of prosecution''s appeal is that the presiding Magistrate misdirected himself when assessing the weight of the evidence by failing to take into account relevant matters which pointed to the guilt of the respondent.

The case for the prosecution was that the Respondent had approached the victim at the Wings Supermarket and hit her at the back of her head with his left hand. Although the victim did not see her assailant when she turned around she saw the Respondent right behind her. An argument ensued thereafter between the two of them. The prosecution say this assault was witnessed by one of the security officers at the Supermarket.

The Respondent on the other denied hitting the victim at all. There was no other witness to support his version. All other defence witnesses called were investigating officers and their evidence is of minimal value in this. That case accordingly turned on the evidence of two witnesses against one and which version the presiding Magistrate accepted.

In his assessment of the evidence a lot of reliance was placed by the presiding Magistrate on what he considered to be inconsistencies in the evidence and the demeanour of the witnesses. His crucial findings are contained in his conclusions. He found that he could not be satisfied to the requisite standard that he could rely on the account given by the prosecution witnesses that the victim was hit on the head by the Respondent. He reached this conclusion based on his assessment on the inconsistencies in the evidence of the prosecution witnesses and their demeanour in court.

On the question of inconsistency, in his assessment of the evidence of the victim, he found two inconsistencies. The first one was whether she cried at the Wings Supermarket during the incident or not. She had denied crying in her evidence but the witness PW3 had told the court that he observed her crying. The second inconsistency noted related to the actual words used in the swearing. He noted that in her statement she did not say what words were used but in court she was able to articulate this. In both instances the presiding Magistrate found that the explanations provided by the victim were unsatisfactory and formed the view that these reduced her credibility as a witness.

As to the question of inconsistency in relation to the second prosecution witness identified as PW2, the presiding Magistrate found more inconsistencies; four stood out which he also found affected his credibility as a witness.

The first one related to the question which hand was used in the assault. In his statement taken on the day of the incident he had said that the respondent used his right hand. In a later statement and in court he said he used his left hand. The presiding Magistrate was not impressed with his explanation of this inconsistency and coupled with his observation of his demeanour in court he formed the view that this did not assist his credibility as a witness.

The second inconsistency related to his statement to police that when he returned to the Supermarket after getting rid of some rubbish, he saw the victim standing alone in front of the fridge. In his evidence in court however he said that he saw the victim and her husband in the Supermarket. The presiding Magistrate formed the view that this inconsistency too did not assist the prosecution case.

The third inconsistency noted was in the manner the assault was effected. This witness described it as more of a straight forward punch while the victim described it as more of a downward motion. The presiding Magistrate also noted that there was a difference in the way the victim was observed to have reacted to that punch. The victim said she turned her head towards the left while PW2 said she turned the other way. The presiding Magistrate again noted that this inconsistency did not help the prosecution case.

The fourth inconsistency noted was in relation to the location of the incident whether it occurred at the centre freezer or the back freezer. There were two freezers it seems in the Supermarket, one located at the centre and one at the back. Both the victim and PW3 said the incident happened at the back freezer while PW2 said it occurred at the centre freezer. Again it would seem that the presiding Magistrate formed the view that the discrepancies were not insignificant.

In his assessment of those inconsistencies, he concluded that in their totality, they reduced the credibility that can be placed on the version of prosecution. In contrast he found the evidence of the defendant to be composed, clear, consistent and credible. He formed the view that he seemed to be more credible when contrasted with the prosecution witnesses.

This court will only interfere if it is clear an error of law or fact is obvious on the record and such that it would not be proper to allow that to remain on the record.

The crucial question in this appeal is whether an error had been committed by the presiding Magistrate in his assessment of the evidence and whether it was significant and resulted in him reaching the wrong verdict in the case. If the decision reached was one which was open to him based on his assessment of the evidence, this court will not interfere. It is immaterial that on the same evidence a different Magistrate could have entered a different verdict for that would not have made his assessment of the evidence erroneous.

I am not satisfied he failed to take into account relevant matters of evidence in the case. Ultimately it boiled down to the question of credibility and reliability. These are not irrelevant matters as may have been suggested. These are part of the matters which a Magistrate would have been obliged to consider and be in the best position to assess as opposed to this court in its appellate jurisdiction. This court will be reluctant to interfere with the findings of the Magistrate Court unless it is convinced it is wrong. While to some extent the submission of the learned Director may be correct, that it appeared on the record that much emphasis may have been placed on minor inconsistencies and discrepancies in the evidence of prosecution witnesses, their mannerisms and behaviour in the witness box, the presiding Magistrate had found that taken in their totality they raised a reasonable doubt in his mind, that it would not be safe to rely on the veracity of their evidence that an assault had occurred. In so doing he had balanced this with the evidence of the defendant that he was carrying his child on his right hand, that his left hand was equally occupied with something he was also holding onto and his outright denial of the assault.

Although the judgement was overly lengthy, verbose and repetitive, I am not satisfied any error of law or fact had been committed. But even if an error may have occurred, I am not satisfied it was a significant error that would have resulted in a mistrial having occurred. In the circumstances, I am satisfied the appeal must be dismissed.

The Court.