R v Tagatubue [2019] SBHC 2; HCSI-CRC 230 of 2010 (11 January 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Tagatubue v R
Citation:
Date of decision:	11 January 2019
Parties:	Timothy Tagatubue v Regina
Date of hearing:	10 January 2019
Court file number(s):	Criminal Case 230 of 2010
Jurisdiction:	Criminal
Place of delivery:	High Court of Solomon Islands
Judge(s):	Palmer; CBE
On appeal from:
Order:	Allow the submission of no case to answer Direct that the defendant be acquitted forthwith and released at the rising of the court
Representation:
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, Criminal Procedure Code
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 230 of 2010

REGINA

v

TIMOTHY TAGATUBUE
Accused

Date of Hearing: 10 January 2019
Date of Ruling: 11 January 2019

Mr R.B Talasasa (Jnr.) Ms. E Rizzu and Mr. P.R Abe (assisting) for the Crown
Mr. M Holara and Mr. R.D Pulekera (assisting) for the Defence

Palmer CJ.

1. The defendant, Timothy Tagatubue had been charged with the murder of a child, Gregory Pego (“deceased”), at Datonabari, Katova area, Guadalcanal Province on the 12^th October 2009, contrary to section 200 of the Penal Code.
2. At close of prosecution case, Mr. Holara for the defendant submits a no case to answer in respect of the murder charge. He submits there is no evidence to put the defendant to his defence under section 269(1) of the Criminal Procedure Code (“CPC”). The test under section 269(1) of the CPC is that there must be sufficient evidence to put the defendant to his defence and so even if there is evidence but it is insufficient or so thin as to support a conclusion beyond reasonable doubt, the defendant must be acquitted. Taken at its minimum, it must pass that test of establishing every element of the offence beyond a reasonable doubt^[1]. In other words, there must be cogent evidence at close of prosecution case that is, capable of sustaining or supporting, a finding of guilty beyond reasonable doubt.

Is there sufficient evidence of the offence of murder against the defendant?

3. I have had the opportunity to consider the evidence that has been adduced at close of prosecution’s case and submissions of learned Counsels for the defence and prosecution, and come to the following conclusion.
4. I am not satisfied the evidence adduced sufficient to put the defendant to his defence. On the contrary, I find the evidence to be so thin as to satisfy that minimum requirement of any conclusion beyond reasonable doubt, that the defendant killed the deceased with malice aforethought.
5. The crucial prosecution witness relied on, Nelly Kichoho (PW1), to the alleged murder, and mother of the child, was the only eye witness who allegedly saw the defendant at the scene of the crime, holding a stick, standing beside the child and running away shortly afterwards.
6. The deceased, was a child of about 3 years old, who had been left unattended to, standing at a level place, some distance away, (estimated by the mother to be some 6 meters away), while she was working, planting shallots some distance from the child. The father, Isaac Pego, (PW2) estimated the distance between the mother and the child to be some 3 meters. He was working further below the garden, which was on a slope and while he could see his wife, he could not see his child.
7. There is no direct evidence to support the prosecution case that even if the defendant was there at the scene of the crime that he struck the child the fatal blows to the head. PW1 did not see the defendant hitting or attacking the child with a stick, she only saw him standing beside the child with a stick.
8. The allegation of murder is based primarily on the assumption that the injury on the child was caused by the defendant because he was seen standing beside the child and then seen running away, when the mother ran towards her child.
9. The evidence of the mother was that when she heard her child crying she looked towards where he was and saw him lying on the ground. In examination in chief, she told the court that she saw the defendant standing beside him but during cross examination, she told the court that she did not see him at first until she had approached the child.
10. While I am satisfied there is evidence from this witness that she saw the defendant at the scene of the crime, the reliability of that evidence had been so discredited in cross examination and its value reduced to the point that I find that it would be unsafe even taken at its highest to accept that it is sufficient to reach any conclusion beyond reasonable doubt that the defendant was responsible for the death of the deceased.
11. Both in cross examination and in re-examination she changed her story to say that the allegation had been framed with another witness, who is related to PW2, because of a land dispute between that person and the defendant and then later recanting on it.
12. I note that evidence of a land dispute between the parties was introduced to support the element of a motive and provide proof of malice aforethought. I am not satisfied however this piece of evidence sufficiently makes any connection to the alleged crime other than mere conjecture and suspicion. It adds little or anything to support or strengthen prosecution’s case, for the essential elements of the charge I find inherently weak and devoid of substance and corroborating material or evidence to satisfy the required standard of proof.
13. In terms of the allegation of the use of the stick as the murder weapon, the evidence is purely circumstantial. No evidence has been led as to the size and type of stick used. In her evidence, PW1 told the court that the injury was to the back of the head but the report of the Doctor, Dr. Roy Maraka described two lacerations at the left eye-brow of the child. This discrepancy further weakens the credibility of PW1’s evidence and throws doubt as to its veracity and to her credibility as a reliable witness of fact.
14. Apart from her evidence no one else saw the defendant in the vicinity of the garden, whether on their arrival at the garden or any time immediately before the incident or even after the incident. The nearest person to PW1 was PW2, he also on arrival did not see the defendant, although he did state that on arrival PW1 told him that the child had been assaulted by the defendant. They both however did not report the matter to police until later.
15. With respect, I find her evidence and credibility to have been discredited to the point that it would not be safe to rely on this evidence being the sole evidence to prove guilt of the defendant.
16. The medical evidence did not conclusively rule out the possibility of the injury on the head of the child being caused by something else, including falling on a hard or strong object such as a rock, stone, stick or log and injuring himself on the head.

Conclusion.

17. I am not satisfied on the evidence before me that prosecution had adduced sufficient evidence that is credible and reliable to be able to put the defendant to his defence and accordingly the submission of no case is accepted and the defendant acquitted herewith of the charge of murder.

Orders of the Court.

(1) Allow the submission of no case to answer.
(2) Direct that the defendant be acquitted forthwith and released at the rising of the court.

SIR ALBERT R PALMER CBE
CHIEF JUSTICE

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^[1] Bosamate v. Regina [2013] SBCA 16; R. v. Tome [2004] SBCA 13; R.v. Somae [2005] SBCA 18