Regina v Buga [2012] SBHC 109; HCSI-CRC 99 of 2009 (19 September 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

REGINA

-v-

PETER BUGA

Date of Hearing: 27th, 28th and 30th August 2012.
Date of Judgment: 19th September 2012.

Mr. Kelesi for the Crown.
Mr. Aupai for the accused.

RULING ON NO CASE SUBMISSION

Introduction:

1. The accused, Peter Buga, is charged with one count of rape contrary to section 136 of the Penal Code. It is alleged that the accused raped Ms. Prista Toligizo, at Point Cruz wharf between 4am and 5am on Friday 7th October 2008. The accused has pleaded not guilty to the charge.
   
2. The Crown has called 5 witnesses. They were the complainant herself, Ms. Prista Toligizo (PW1), a security officer employed by SI Copra Exporters, Alfred Alufurai (PW2), a police woman, Goreti Teku (PW3), another police woman, Ruth Saefafia (PW4) and Dr. Jack Maesukunar (PW5).
   
3. At the close of the prosecution case, counsel for the accused submitted, pursuant to section 269(1) of the Criminal Procedure Code ("CPC"), that the accused had no case to answer. The submission was based solely on the ground that none of the witnesses has identified the accused, or has made any reference to the accused, in court as the person who had committed the offence.
   

The law on no case submissions:

4. The leading authority in this jurisdiction on no case submissions is R v Tome ("Tome")[1]. In that case, the Court of Appeal said[2] that the test called for by s 269(1) is whether or not there is 'no evidence that the accused committed the offence' and that if there is some evidence (even if tenuous or inherently weak or vague) that the accused committed the offence then the case must proceed to final determination by the tribunal of fact.
   
5. The evidence that must be established at the close of the Crown case is evidence that is capable of proving beyond reasonable doubt that the accused committed the offence, not evidence that proves beyond reasonable doubt that the accused is guilty.
   
6. In determining whether or not there is such evidence, inconsistencies in evidence (whether in the testimony of a witness or as between witnesses) are not relevant and that the court must take the prosecution case at its highest when determining whether or not the accused has a case to answer. Taking the prosecution case at its highest means accepting the evidence most favourable to the prosecution.
   

The evidence:

7. In the present case, I am satisfied that the evidence produced by the Crown, taken at its highest, is capable of proving beyond reasonable doubt that the accused is guilty of raping the victim in the early hours of the morning of Friday the 7th October 2008.
   
8. There is evidence by the victim, Ms. Prista Toligizo (PW1), that she was drunk and fell asleep near a SIEA pillar box within the compound of the SI Copra Exporters' shed in the morning of Friday 7th October 2008; that she woke up when she felt someone shaking her body; that she felt someone having sex with her; that she felt a man's penis inside her vagina; that she struggled and cried; that the police arrived and then took her to Central Police Station and then later to Rove where she gave her statement to the police. The victim's evidence is capable of proving that sexual intercourse occurred and that the accused was indifferent and reckless as to whether the victim had consented to have sexual intercourse with her.
   
9. There is also evidence by Mr. Leonard Alufurai (PW2) capable of corroborating the victim's evidence. Alufurai's evidence shows that he was on duty at the SI Copra Exporters' shed at Point Cruz during the night of the 6th October up to the early hours of the morning on Friday 7th October 2008 and that around 4am that Friday morning, he saw a man touching the victim's breast and private part and lying down beside the victim and making sexual motions at the side of the victim. He said that the victim was dead drunk and possibly did not know what was happening to her. He said he saw the man unzipping his trousers and having sex with the victim.
   
10. There is also evidence by Ms. Goreti Teku (PW3), a police officer involved in the arrest of the accused that Friday morning, to the effect that she came with other police officers to the copra shed at Point Cruz wharf where the alleged crime took place; that they arrived at the crime scene less than half an hour after receiving Alufurai's phone call; that they saw the victim lying down close to an SIEA pillar box; that she walked to the victim and saw a man standing close to the SIEA pillar box; that she saw the man buttoning up his trousers; that she saw the victim's trousers was down just under her buttocks; and, that they took the victim and the man to Central Police Station.
    
11. There is also evidence by Ms. Ruth Saefafia (PW4), another police officer involved in the arrest of the accused, that she saw the accused there at the crime scene; that Sgt Tautai got hold of the accused and put him in a police vehicle and drove to Central Police station; and that Sgt Tautai formally arrested the accused at the Central Police station.
    
12. The evidence of these four witnesses, if believed, is capable of proving beyond reasonable doubt that the accused had raped the victim in the morning of Friday 7th October 2008.
    

Accused's case:

13. The accused's main contention in support of his no case submission is that none of the Crown witnesses had identified the accused in court as the person who had committed the offence. Counsel therefore submits that there is no case for the accused to answer.
    

Evidence of arrest, charge and appearance in court:

14. Unfortunately, I do not agree with that contention. First, there is evidence by Ms. Saefafia that the accused was present at the scene that morning and was placed inside the police vehicle by Sgt Tautai also that morning and taken to the Central Police Station where he was later formally arrested and charged by Sgt Tautai. The accused did not challenge the fact that he was the same person who was placed in the police vehicle that morning and taken to the Central Police station and later arrested by Sgt Tautai. He has responded to the charge against him and has pleaded not guilty to the charge. I am entitled to take judicial notice of those facts. There is therefore a prima facie case that the accused was the same person who was arrested and charged that morning of Friday the 7th October 2008.
    
15. In so deciding, I am supported by the decision in Allan & Others v Ireland[3]. In that case, the defendants were 11 members of a group of some 250 football supporters who emerged out of a train station and who proceeded down the main road chanting, shouting and disturbing the traffic. The group was surrounded and arrested by the police and taken to the police station where they were charged with threatening behavior and then bailed. It was decided to try them in groups of ten. The defendants, who were in the first group, were the first to be tried. At trial, they were not identified individually. At the end of the prosecution case, it was submitted on behalf of the defendants that there was no case to answer. The magistrate rejected the submission and held that there was a case to answer. The defendants appealed against the magistrate's decision on the ground that there was no evidence identifying any of them as participants in the threatening behavior. The Court rejected the appeal holding that there was a prima facie case of identification against the defendants in that they were arrested, charged and bailed together as a group; they appeared together as a group before the magistrate; and that they pleaded to the charges in their names concerning the events in the road in question.
    
16. The principle laid down by that case is that a court can take judicial notice of the ordinary process of arrest, charge and bail so as to raise a prima facie case that a person surrendering to bail and answering to the name laid in the charge is the same person as the person who has been arrested, charged and bailed.
    

Finding:

17. I therefore find that the accused has a case to answer.
    

THE COURT

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^[1] [2004] SBCA 13.
^[2] Ibid, at p. 13.
^[3] [1984] 79 CrAppR 206.