R v Naurua [2019] SBHC 7; HCSI-CRC 493 of 2015 (29 January 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Regina v Naurua
Citation:
Date of decision:	29 January 2019
Parties:	Regina v Joshua Naurua
Date of hearing:	28 January 2019
Court file number(s):	Criminal Case Number 493 of 2015
Jurisdiction:	Criminal
Place of delivery:	Gizo High Court Circuit
Judge(s):	Maina PJ
On appeal from:
Order:	Order accordingly, Accused Joshua Naurua is acquitted
Representation:	Mr. G. Grey for the Accused Mr. R Talasasa for the Prosecution
Catchwords:
Words and phrases:
Legislation cited:	Penal Code, Criminal Procedure Code
Cases cited:	Regina v Somae, Doney v Regina, May v O’Sullivan

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case Number 493 of 2015

REGINA

V

JOSHUA NAURUA
Accused

Date of Hearing: 28 November 2018
Date of Ruling: 29 January 2019

Mr. G Grey for the Accused
Mr. R Talasasa for the Prosecution

RULING OF SUBMISSION OF NO CASE TO ANSWER

Introduction

The accused Joshua Naurua is standing his trial with one count of murder of Patricia Lafusi, contrary to section 200 of the Penal Code.

At the close of the prosecution’s case on the charge against the accused, Counsel Grey for the accused submitted a no case to answer. He said there is insufficient evidence. Prosecution only relied on the circumstantial evidences and as the case stood, the court could not be satisfied beyond reasonable doubt as to the guilt of the accused on the charge of murder.

Defence counsel further submitted that in alleging the accused had unlawfully caused her death, the Crown evidences must show that it could prove proof beyond reasonable doubt, not the possibility the accused unlawfully caused the deceased’s death as now at the close of the Crown’s case.

Background

The accused met the deceased with her cousin and friends at the “K” Night Club in Noro Town. Later in the deceased was drunk and started to sleep and laid around at Night club. After the club was closed the deceased cousin stopped a taxi to take them to the Back Way settlement.

The deceased’s cousin and friends with accused boarded the taxi and drove off towards the Back Way settlement. When they dropped off at the Telekom tower area it was raining and the deceased cousin went and stood at the side of the road. The other friends ran to Chacha’s security shed and took a shelter there. The accused with the deceased went or accused led her on the road down toward the Back Way Settlement. And later in the afternoon, the deceased was found but already died.

On medical examination of the deceased, the doctor was not able to determine the cause of the deceased body.

The Issue

Whether on the Crown case it is not possible for the court to be satisfied beyond reasonable doubt of the guilt of the accused?

The Law

The Criminal Procedure Code (Cap 7) in section 269 is that if the court considers there is no evidence against the accused, court after hearing submission from the counsels, record a finding of not guilty. If there is evidence that the accused committed the offence, the accused shall be informed of his right to address the court. He can give sworn evidence or unsworn statement or remain silent. And to what choice, he can call witnesses to support his case.

With this case the Crown relies on circumstantial evidences against the accused for the charge of murder. And the principle for dealing with such is as presented by Counsel Grey for the defence in the Case Stated by DPP (No.2) [1993] SASC 4152; (1993 70 A Crim R 323 (SA CCA) King CJ:

“I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be.
If the case defends upon circumstantial evidence, and that evidence, if accepted, is capable of producing a reasonable mind a conclusion of guilty beyond doubt and is thus capable of causing a reasonable mind to exclude and competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstance case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or put in another way, could not exclude all hypotheses”

The submission of no case to answer is a question of law and will require the judge or magistrate to decide it. It would not involve of weighing of the evidence and the question at this situation is whether there is evidence. If accepted which would establish the essential elements of the offence the judge must stop the case. If not accepted the case proceeds and the end of a no case to answer submission.

The test on no case to answer is as stated in Regina v Somae (SBCA 18 and reference to the case of Doney v Regina [1990] LRC (Crim) 415 which states:

“As is made clear by cases such as Doney v R [1990] HCA 51; [1990] LRC (Crim) 416, inconsistencies in evidence (whether within the testimony of a witness or between witnesses) are not relevant at the no case stage. The court must take the prosecution evidence at its highest and that means accepting the evidence most favourable to the prosecution when determining whether an accused has a case to answer. 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 reasonable doubt that the accused is guilty. The distinction is important because rejecting the no case submission leads to the next stage of the trial. The accused may elect to give evidence, in which event the final test would be applied in the light of all the evidence then before the court. If the accused does not give evidence the tribunal of fact has the benefit of final addresses during which issues of credibility of witnesses and sufficiency of evidence not relevant to the no case determination will be explored.'
It is important to note that the evidence that is to be considered for the purposes of a no case submission must be capable of proof beyond reasonable doubt of the accused's guilt. It is not enough if it is merely capable of proving the possibility of guilt. It must be capable, if accepted, of proving guilt beyond a reasonable doubt. As the High Court of Australia said in Doney v R [1990] HCA 51; [1990] LRC (Crim) 416 at 423”

There were heated words and interference to each other by the counsels at the presentations of the submissions on no case to answer, over the test of the Regina v Somae case.

However, this is precedent case and simply, that at the close of the case for the prosecution and a submission is made that there is ‘no case to answer’, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. With that the principle on which a trial judge should direct a verdict of acquittal are therefore or well settled in this jurisdiction.

And further with this principle as in May v O’Sullivan [1955] HCA 38 ; ef="http://www.austlii.edii.edu.au/cgi-bin/LawCite?cit=%281955%29%2092%20CLR%20654" title="View LawCiteRecord">(1955) [1995] HCA 38; 92 CLR 654 at 658, the court sait the question is whether, at the time a no case to answer swer submission is made; the accused could lawfully be convicted on the eve as it stood at that time

A no case to answer is question of law and commonly raiseraised at the end of the Crown’s evidence in chief. This question is to be distinguished from the question of fact for final decision on the question of whether every element of the offence is established to the satisfaction of the court of fact beyond a reasonable doubt. This ultimate question of fact must be decided on the whole of the evidence. In other words, the question of whether the prosecution has proved its case beyond reasonable doubt does not arise until the whole of the evidence, including such evidence as the accused may wish to adduce, is before the court, and not before or it is a question that does not arise at the close of the prosecution’s case, unless the conclusion of the evidence in the case.

In this jurisdiction there is no jury and a judge or magistrate is a judge of law and facts. And so when a submission of no case to answer at the close of the case for the crown, a judge or magistrate is not to ask whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted.

Again it is a question of law, to be cautiously distinguished from the question of fact that would be asked at the close of all of the evidence i.e. whether the prosecution has proved its case beyond reasonable doubt.

The case

The Crown called witnesses and orally testified with agreed witness statements tendered to the court. Basically the evidences were of what they knew prior and after the incident.

In all they are circumstantial evidences against the accused as follows:

(i) PW 1 who worked as security man at “K” club, Noro gave evidence that a fat boy with rat tail hair said that if the girl does not like him, he will kill her. When the club closed at 2 am the deceased went away with Constance, Lagani and the boy,
(ii) PW5 that one man (accused) sat with her sister (deceased) as though he owns her and he told them to go back to the house. And this witness said or questioned who came with this man.
(iii) Jacinta Naolaro (PW6) and Wilson Laura (PW7) both saw a man wearing a reflected shirt and saw them walking towards the Back Way settlement,
(iv) EPW15/1) a nurse who stated that a bruise on the right neck.

With the Crown’s case and the evidences with the DNA test confirmed what the witnesses knew prior and after the incident. With that, the deceased’s fate, vicinity, knowledge, possession, where about, hands or account was ended as seen or stated by PW6 and PW7 when she went towards the Back Way settlement with a man wearing a reflected shirt at the early morning (about 2 am) and later or until she was found at the scene in the afternoon at about 2pm -3pm but she had already died.

With these evidences adduced by the Crown at the close of it case, it simply could not stand for the alleged act of the accused thus unlikely to provide evidence for malice aforethought or intention to cause death on the part of the accused. In other words the evidences are thin or slim and a court could not reach a conclusion of guilty beyond reasonable doubt.

I consider that this is an appropriate case in which I must hold (stand up) that you Accused Naurua have no case to answer on the charge of murder of the deceased and acquit.
Order accordingly, Accused Joshua Naurua is acquitted.

THE COURT
......................................................
Justice Leonard R Maina
Puisne Judge