R v Lui [2019] SBHC 99; HCSI-CRC 491 of 2015 (31 May 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Lui
Citation:
Date of decision:	31 May 2019
Parties:	Regina v messiah and Rokopo Gege
Date of hearing:	24 May 2019
Court file number(s):	491 of 2015
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Palmer CJ
On appeal from:
Order:	(i) Find no evidence to put both defendants, Messiah Lui and Rokopo Gege to require them to be put to their defence. (ii) Grant application for a submission of no case to answer. (iii) Direct an acquittal of both defendants herewith and to be released at the rising of the Court herewith.
Representation:	Mrs. M Suifa’asia for the Crown Mr. Stanley Aupai for Messiah Lui Mr. Wayne Ghemu for Rokopo Gege
Catchwords:
Words and phrases:
Legislation cited:	Criminal Procedure Code, s269 (1), Penal Code [cap 26] s22
Cases cited:	Bosamate v Reginam [2013] SBCA 1, R v Tome [2004] SBCA 13, R v Somae [2005] SBCA 18, Ligabutu v Regina [2006] SBCA 19, McAulife v The Queen [1995] HCA 37

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 491 of 2015

REGINA

V

MESSIAH LUI AND ROKOPO GEGE
Defendant

Date of Hearing: 24 May 2019
Date of Ruling: 31 May 2019

For the Crown: Mrs M Suifa’asia
For the Defence: Mr. Stanley Aupai for Messiah Lui and Mr. Wayne Ghemu for Rokopo Gege

RULING

Palmer CJ.

1. At the close of prosecution case on Friday 24^th May 2019, Mr. Aupai, of Counsel for Messiah Lui and Mr. Ghemu, of Counsel for Rokopo Gege, make submission of a no case to answer on the murder charge. They submit there is no evidence or insufficient evidence to put the defendants to their defence under section 269(1) of the Criminal Procedure Code.

Submission of no case to answer – the law

2. Section 269(1) of the Criminal Procedure Code provides 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. The test to be applied in a submission of no case to answer has been canvassed in detail by the Solomon Islands Court of Appeal in three cases, Bosamate v. Reginam^[1], R. v. Tome^[2] and R. v. Somae^[3].
4. In R. v. Tome, the test is described as:
   • “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 continued:

“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).
The test was further clarified in R. v. Somae^[4] 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^[5], the Court concluded: “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 key point to note in a submission of no case is that there must be credible evidence, that is evidence capable of belief and of supporting a verdict of guilty at the close of prosecution’s case if that were the only evidence available. Any question of weight to be attached to such evidence is to be left to the judge of fact and law. Even if there is evidence but it is so weak or tenuous and which no reasonable tribunal would accept as capable of supporting a conviction, the case should be dismissed as providing no evidence or insufficient evidence in a submission of no case to answer.

The issues for determination.

5. The two defendants Messiah Lui (“Lui”) and Rokopo Gege (“Rokopo”) have been jointly charged with Kidoe Tufu (“Kidoe”) (who is the principal offender), as persons acting in concert, with a common purpose or intention to commit an unlawful purpose and in which as a consequence the deceased Clement Levara was killed. They have been charged together with the principal under section 22 of the Penal Code (cap. 26). Section 22 provides as follows:
   • “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

The elements of the offence are:

• (i) Two or more persons;
• (ii) Form a common intention to prosecute an unlawful purpose in conjunction with one another; and
• (iii) An offence is committed as a probable consequence of the prosecution of such common purpose.

6. Those elements of a joint criminal enterprise have been further expounded upon in Ligabutu v. Regina^[6] in which the Court of Appeal held that the two main issues for consideration were:
   1. Whether each of the parties formed a common intention with the principal to kill or cause grievous bodily harm; and
   2. Whether the killing was a probable consequence of the common purpose or intention.
7. The Court of Appeal further clarified that the first question being, one of intention is to be determined subjectively according to the facts which comprised the common intention of the parties. Citing McAulife v. The Queen^[7], it noted that the element to be proved is “an understanding or arrangement amounting to an agreement ... that they will commit a crime”, which “need not be express and may be inferred from all the circumstances”.
8. In the same case (McAulife v. The Queen), the High Court of Australia, said:
   • “Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means often an additional means, of establishing the complicity of a secondary party in the commission of a crime.”
9. The issues for determination in this submission of no case therefore are:
   • (i) Whether the accused Messiah Lui and Rokopo Gege together with Kidoe Tufu, formed a common intention to kill or cause grievous bodily harm to Clement Levara (deceased); and
   • (ii) Whether the killing was a probable consequence of carrying out that common intention or purpose.

Is there evidence of a common intention to prosecute a criminal purpose in the evidence adduced by the Crown in Messiah Lui’s case?

10. The evidence sought to be led by the Crown is that there was a mob or group, that came with Kidoe Tufu (“Kidoe”) to attack the deceased, of which Lui was amongst them and was there at the scene of the crime providing support. It is necessary therefore for the Crown to prove or provide evidence of a common purpose or intention, that Lui was acting in agreement and concert with Kidoe to attack the deceased, such evidence need not be express but will be sufficient if it can be inferred from the circumstances.
11. The evidence adduced by prosecution in support of the allegation can be summarised as follows.
12. Lui was seen at the scene of the crime by two prosecution witnesses (Mackenzie Taneko (“Mackenzie”) and Japhet Bagara (“Japhet”)). Mackenzie saw him holding both a knife and a stone. Japhet saw him holding only a knife. Another witness Jesca Bagara (“Jesca”) also placed him at the scene of the crime and heard him calling out to Kidoe words to the effect “Kidoe Kele lo dea”. Japhet also heard him saying the same or similar words. Other witnesses saw him walking past with a knife in his hand in the direction of Rakarua village.
13. In contrast however, there were also other witnesses who were at the scene of the crime, who denied seeing him there when asked. Martin Boga (“Boga”) and Lindria Barisa (“Lindria”), did not see him at the scene. Mavis Ivinui (“Mavis”) saw him at the scene standing with other men, but it is interesting to note that those other men had not been charged. If they were part of a mob as is the allegation of the Crown, why were they not charged together with Lui and Rokopo.
14. I find in terms of proof of a common purpose or intention, no evidence to support such contention. The only evidence is that of association by mere presence at or around the scene of the crime. However, mere presence without more in this instance, is insufficient to impute criminal intent, unless there is evidence that he was acting in concert or actively supporting Kidoe, or egging him on to attack the deceased, which I find none. Apart from being seen with a knife and or a stone in his hand, there is no evidence to suggest he was armed for the purpose of assisting Kidoe in attacking the deceased. There is no evidence of any mob or group acting in concert together with the principal. If so, the fact no one else had been charged displaces such insinuation. Only Mackenzie saw him holding both a knife and a stone, while the others saw him with a knife only. No evidence however has been adduced to suggest that the knife was used as a weapon by Lui to intimidate or frighten the deceased with.
15. It has often been said in this court that being seen with a knife in the rural areas of Solomon Islands is not uncommon. People regularly carry knives and axes with them when going to work or the garden or even just moving around the village and unless there is evidence to the contrary, does not imply a criminal intent or purpose.
16. I find no evidence of any direct or indirect involvement in the attack, assistance or any form of participation by Lui. Apart from the suggestion that he was heard calling out to Kidoe and showing him where Clement was, there was no suggestion he was heard shouting or speaking words to spur or encourage Kidoe to attack the deceased. To impute criminal intent in his words without more, is insufficient to make the connection. To the contrary I find evidence, which has not been rebutted or discredited that he was there as a passive bystander and not a participant, and the attack by Kidoe done entirely in his own volition. As has been put in cross examination repeatedly by Mr. Aupai, which I accept, it is not unusual for a crowd to quickly gather around, in a village setting, whenever there was an unusual commotion, happening, or a fortiori, a fight. That seems to be the case here, with people gathering around the scene of the crime as a result of the commotion created that day.
17. I am not satisfied there is sufficient evidence that I could find that is capable of finding a verdict of guilty at the close of prosecution case and the defendant in this case must be acquitted of the offence and discharged at the rising of the court.

The case against Rokopo Gege.

18. Again the case against Rokopo Gege (“Rokopo”) is that he was part of a mob or group that came with Kidoe to attack the deceased and were acting in concert to prosecute an unlawful purpose or agreement.
19. The only direct evidence which seems to implicate Rokopo somewhat, came from Mackenzie, who places him at the scene and blocking the deceased from escaping from Kidoe when attacked. He told the court that he saw him holding out his hands to his side to block the deceased from escaping. He however, did not hear him saying anything or taking part in the attack. He also agreed that after the attack, the defendant was seen helping the deceased. He did not leave with the others after the attack or with Kidoe when he left. He remained behind to help instead before leaving.
20. Another witness, Boga also saw the defendant at the scene with Kidoe and the deceased, but did not see him doing anything or saying anything to encourage Kidoe. He also confirmed that the defendant was one of the first persons to assist the deceased after he was struck down by Kidoe, helping to pour water on him and holding him up. He left shortly after Boga arrived at the scene to help.
21. The evidence of the witness Nelma is also relevant to the question of common intention or purpose for she did not see the defendant walking past her house that morning. She described seeing the others going past behind Kidoe but did not mention the name of this defendant. This also would put a wedge to the allegation of common agreement and being with a mob to attack the deceased. It also raises doubt as to whether he had planned anything with Kidoe before the attack on the deceased that morning. If so, when and where; there is no evidence to that effect. Prosecution’s allegation that they had planned an attack against the deceased before arriving at the scene simply is not supported by the evidence.
22. Another Crown witness, Lindria, who told the court that the defendant did not do or say anything at the scene of the crime also told the court that when the deceased fell down she heard Rokopo said words to the effect that Kidoe had killed his child. This would be inconsistent with the actions of a man with criminal intent. She confirmed too that he was the first person to assist the deceased when he had fallen down.
23. The witness Japhet also saw the defendant at the scene with Kidoe from the beginning when Kidoe attacked him before moving on to attack the deceased. He told the court that when Kidoe approached him, the defendant had signalled to him to go away from the defendant. Again this is inconsistent with the actions of a man in concert with the principal to commit an unlawful purpose that day.
24. Another witness Valori Rave, who saw the defendant at the scene of the crime only saw him following Kidoe, she did not see him doing anything. In cross examination she denied seeing the defendant blocking the deceased. She also confirmed that he assisted the deceased after he had fallen down.

Is there evidence of a common intention to prosecute a criminal purpose in the evidence adduced by the Crown?

25. Is there evidence of a common intention or agreement to commit or prosecute an unlawful purpose in the evidence adduced by the Crown? The short response would be in the negative.
26. There is simply no evidence of any common agreement or purpose that the defendant had planned anything with Kidoe to commit an unlawful purpose.
27. The only evidence adduced by prosecution from Mackenzie that he saw Rokopo blocking him from escaping was not seen and supported by anyone else. I am not satisfied this piece of evidence to be sufficient to found any basis of association, plan or common design to effect an attack on the deceased. Its credibility and reliability hangs very much in the air when all the other evidence is taken into account and considered together with the events of that day.
28. As well the only evidence sought to be put to establish an association and connection with Kidoe was the fact of his mere presence at the scene and being passive, not doing anything to stop or prevent the attack on the deceased.
29. While other witnesses saw him at the scene of the crime, they did not see or hear him do anything to encourage or assist Kidoe. His actions as well after the attack were simply not consistent with that of someone who was acting in concert or in agreement with Kidoe to commit an unlawful purpose.
30. Even Mackenzie conceded that Rokopo was the first person to assist the deceased after he had fallen down and did not accompany the others or Kidoe when they left.
31. I am not satisfied accordingly the evidence adduced is sufficient to meet the required standard in a submission of no case. Apart from the absence of evidence of any common intention or purpose, mere presence at the scene alone in this instance I to be insufficient without more, to satisfy the requirement of being an associate or party to the offence. There was no evidence to support any suggestion that he was acting in concert with Kidoe or in the least, providing moral support to him. His actions after the killing in remaining behind to assist the deceased I find to be inconsistent with any suggestion of a guilty intent or malice towards the deceased.
32. I am not satisfied accordingly Crown had adduced sufficient evidence as well in his case to require that he be put to his defence. Accordingly he too should be acquitted and discharged forthwith at the rising of the court.

Orders of the Court:

(i) Find no evidence to put both defendants, Messiah Lui and Rokopo Gege to require them to be put to their defence.
(ii) Grant application for a submission of no case to answer.
(iii) Direct an acquittal of both defendants herewith and to be released at the rising of the Court herewith.

The Court.

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^[1] [2013] SBCA 16
^[2] [2004] SBCA 13
^[3] [2005] SBCA 18
^[4] [2005] SBCA 18
^[5] [2013] SBCA 16, p. 6, para. [20]
^[6] [2006] SBCA 19; CA-CRAC 002 of 2006
^[7] [1995] HCA 37; (1995) 183 CLR 108, 114