Regina v Tebaia [2016] SBHC 39; HCSI-CRC 169 of 2014 (21 March 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction
CRC No. 169 of 2014

Regina

v.

Mose Mote Tebaia

Date of hearing: 17^th March 2016
Date of Ruling: 21^th March 2016

Mr. Talasasa R - For the Crown
Mr. Gray G - For the Accused

RULING ON “NO CASE TO ANSWER”
Kouhota PJ:

Introduction

The accused, Moses Mote Tebaia, was charged with 3 offences;

1. Rape contrary to section 131 of the Penal Code,
   
2. Indecent Assault contrary to section 141 of the Penal Code and;
   
3. Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code,
   

Facts

On the 25^th December 2013, the complainant, Miss. Carol Eden was drinking with friends at the White River field. Sometimes after midnight they ran out of drinks so they walked to the White River second bus stop commonly known as 02 Bus stop to look for more drinks. In the vicinity of 02 bus stop, the compliant and her friends met the accused. The accused, Mote, is Carol Eden’s uncle. He is a younger brother of the complainant’s father. According to Carol Eden’s evidence when she saw the accused, she informed her friends that he is his uncle and went to him and greeted him saying “happy Christmas”. The accused instead hit her on right eye and asked what she was doing around there that time of the night.

The victim after been hit by the accused said she ran away to a different spot and thought then that the accused had left. However, after a while the accused returned. Her friends saw him and said to the complainant, he is back. Carol said when she turned back the accused was right behind her with a knife. She gave no description of the knife. She said to avoid getting her friends into trouble she went with the accused to his house. She said on the way she wanted to run or walked fast but the accused held her tight. When both the victim and the accused reached the accused’s house, he took her into his room.

Complainant went and sat on his bed. She told the accused she wanted to go to Aunt Asenta’s house but the accused refused her request and told her to stay with him. She said she wanted to get out of the room but the accused was so fierce. She looked down at the knife and was scared. She thought to herself the only way for her to escape was to give him what he wanted so they have sex.

At the close of the prosecution case, counsel for the accused made a submission of No Case to Answer in relation to Counts 1 and 2.

The Law on No Case to Answer

In a trial before the High Court, the starting point is section 269 of the Criminal Procedure Code (CPC). This section sets what should happen at the end of the prosecution case. It states that if at the end of the prosecution case the Court considers there is no evidence against the accused, the Court shall after hearing submissions from counsels, record a finding of not guilty.

The test to be applied had been discussed on a number of occasions both by this Court and the Court of Appeal and are referred to by both counsels in their respective submissions.

In Regina v Tome [2004] SBCA 13, the Court of Appeal stated, ‘the test called for by section 269 (1) of the CPC is whether or not there is “no evidence that the accused committed the offence”. This 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 facts.

In both R v Tome [2004] SBCA 13 and R v Somae {2005] 2 LRC 431, it was said if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberation and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.

In both these cases, the Court of Appeal accepted that any inconsistencies within the testimony of a witness or between witnesses is not a matter to be considered at the no case to answer stage and that 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 doubt that the accused is guilty.

Ruling

I had considered the prosecution evidence and applying the test stated in the case authorities in this jurisdiction on the issue of no case to answer, I reject the no case submission made on behalf of the accused. I consider there is evidence against the accused on Counts 1 and 2 and direct counsel to inform the accused of his rights and the options open to him under section 269 of the Criminal Procedure Code (CPC)

THE COURT

Emmanuel Kouhota
PUISNE JUDGE