Regina v Salopuka [2016] SBHC 225; HCSI-CRC 104 of 2013 (12 October 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 104 of 2013

REGINA
-V-
Nicholas Salopuka and Luke Yen

(PALMER CJ.)

Hearing: 22-24 August, 29-30 August, 5^th October 2016.

Ruling: 12 October 2016

For the Crown: Mrs. M. Suifa’asia and Ishmael Kekou
For Defence: M. Pitakaka and Ms. M. Tahu

Palmer CJ.

1. At the close of prosecution case, learned Counsel, Mr. Pitakaka for the two defendants, Nicholas Salopuka and Luke Yen made a submission of no case to answer in respect of the charge of grievous harm against both defendants.

2. While on this note, it appears that there were four (4) Information that had been filed in respect of this case. The first was filed on 29 April 2013, the second on the 2^nd May 2013, the third on the 6^th May 2013 and the last one filed on 9^th May 2014. If I am to use the latest as the relevant information then the particulars to that describe the offence as consisting of being punched and kicked on the face and body several times. For future purposes, to avoid confusion, once an amended information has been filed, the superseded information must be withdrawn or cancelled to avoid confusion.

Submission of no case to answer.

3. The law on a submission of no case to answer in this jurisdiction is now fairly well settled as set out in section 269(1) of the Criminal Procedure Code:

“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.” (emphasis added)

4. In a number of cases, Bosamate v. Reginam^[1], R. v. Tome^[2] and R. v. Somae^[3] the Court of Appeal sought to clarify in more detail the powers of the High Court under the above provisions.

5. In R. v. Tome^[4], the Court of Appeal stated:

“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 Tome^[5] 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^[6], the test was expressed 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)

In Bosamate v. Reginam^[7], it 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 evidence adduced by Prosecution.

6. I have had the opportunity to consider the evidence adduced by prosecution in relation to the submission of no case to answer made by the defence. As noted by both counsels in this case, the primary evidence of identification came from the fourth prosecution witness, Christopher Tevaka (“PW4”).

7. His evidence is crucial to the prosecution case for he was the only one who was able to place the two defendants directly at the scene of the crime and also provided clear descriptive account of their actions that night in relation to the charge of grievous harm.

8. In addition, the statement obtained by Police from Luke Yen dated 7 November 2012 also contains evidence which placed this defendant at the scene of the crime at the beach where the alleged assault occurred. He stated that he went into the sea to pull the victim onto the beach and as well punching him, according to his statement, three times.

9. In his evidence PW4 told the court that he recognised the defendant Luke Yen when he chased after the victim to the sea side and saw him holding onto his neck and holding the head of the victim under water on several occasions.

10. He also told the court that he saw the other defendant, Nicholas punching the victim many times as well both in the water and on the beach. Later when he was trying to assist the victim he saw the same defendant returning and kicking the victim in the mouth.

11. I have had the opportunity to carefully consider the evidence adduced by prosecution on this charge and I am satisfied there is sufficient evidence before me to put both defendants to their defence. Accordingly the submission of no case to answer is hereby dismissed.

ORDERS OF THE COURT:

(i) Dismiss submission of no case to answer in relation to both defendants on the charge of grievous harm and direct that they be put to their defence in respect of that charge.

The Court.

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^[1] [2013] SBCA 16
^[2] [2004] SBCA 13
^[3] [2005] SBCA 18
^[4] [2004] SBCA 13
^[5] (ibid)
^[6] [2005] SBCA 18
^[7] [2013] SBCA 16, p. 6, para. [20]