Regina v Salovi [2016] SBHC 223; HCSI-CRC 414 of 2009 (16 December 2016)

REGINA

-V-

James Salovi

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 414 of 2009

Hearing: 14 December 2016.

Ruling: 16 December 2016

For the Crown: Mr Ronald B. Talasasa (Jnr) (Director of Public Prosecutions with Mr. J. Anisi.
For Defence: Mrs. Serah Karani with Mr. D. Kwalai

Palmer CJ.

1. At the close of prosecution case, learned counsel, Mrs. Serah Karani made an application for a submission of no case to answer on behalf of the defendant. She submits that there is no evidence or insufficient evidence to put the defendant on his defence under section 269(1) of the Criminal Procedure Code.
   

Submission of no case to answer.

2. Section 269(1) of the Criminal Procedure Code, deals with the question of a submission of no case to answer and states as follows:
   

“When the evidence of the witnesses for the prosecution has been concluded, ..., the court if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.”

3. This power of the High Court to consider a submission of no case to answer had been canvassed in some detail by the Court of Appeal in a number of cases, notably, Bosamate v. Reginam^[1], R. v. Tome^[2] and R. v. Somae^[3]. In R. v. Tome, the Court of Appeal said:
   

“The test called for by section 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.” (Emphasis added)

It went on to say in referring to the test^[4], in more detail as follows:

“The test then 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.” (Emphasis added).

In R. v. Somae^[5], the test was refined as:

“But, in order to establish a case to answer, there must be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt.” (Emphasis added).

And in Bosamate v. Reginam^[6], this was described as: “a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will sustain a verdict of not guilty.”

The case against the defendant.

4. The primary issue in this case is that of identification of the defendant at the crime scene. A number of witnesses, have given direct oral evidence, tested in cross examination, that the defendant was present at the crime scene, which if accepted by the court as credible and reliable evidence at the close of trial would be capable of establishing the guilt of the defendant as one of the persons who was directly responsible for the murder of the deceased persons stated in the charges, Meda Eva, Don Lee, Stanison Chaivaka and Inasio Vavo. Those witnesses include, Saul Tova, Pelekea Oli and Annette Eka.
   
5. Those witnesses gave credible evidence of having seen the defendant at the crime scene where the shooting took place and in possession of a gun.
   
6. I am satisfied having considered their evidence that there is sufficient and credible evidence adduced by those witnesses that directly implicate the defendant as one of the persons who was directly involved in the shooting incident at Dereni near Gorou.
   
7. In addition if the evidence of Mary Eka is also taken into account as contained in her statement, she also directly identifies the defendant as one of the shooters at that time.
   
8. As to the submission by learned Counsel for the defendant that their evidence is weak and insufficient to put the defendant to his defence, that will have to wait until close of the trial. This is not the time to assess issues of credibility or reliability, or the weight to be attached to such evidence unless it has been shown in the submission of counsel for the defence that the evidence is so defective as to be incapable of sustaining a verdict of guilty.
   
9. I am satisfied and I so find that there is sufficient evidence before this court to require the defendant to be put to his defence. The submission of no case to answer is dismissed.
   

The Court.

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^[1] [2013] SBCA 16
^[2] [2004] SBCA 13
^[3] [2005] SBCA 18
^[4] [2004] SBCA 13 (ibid).
^[5] [2005] SBCA 18
^[6] [2013] SBCA 16, p. 6, para. [20]