R v Betikoho [2021] SBHC 39; HCSI-CRC 263 of 2012 (19 May 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Betikoho
Citation:
Date of decision:	19 May 2021
Parties:	Regina v Reuben Betikoho
Date of hearing:	12, 14 & 15 April 2021
Court file number(s):	263 of 2012
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. I find that the defendant is not guilty of the charge of acts intended to cause grievous harm contrary to section 224 (a) of the Penal Code (cap 26). 2. The defendant is hereby acquitted of the charge. 3. The defendant is to be released at the rising of the court.
Representation:	Mrs. Olivia Ratu Manu for the Crown Mr. Benham Ifuto’o for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] Section 215 (a), Section 224 (a)
Cases cited:	R v Turnbull [1976] 3 WLR 445

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 263 of 2012

REGINA

V

REUBEN BETIKOHO

Date Hearing: 12, 14 & 15 April 2021
Date of Decision: 19 May 2021

Mrs. Olivia Ratu Manu for the Crown
Mr. Benham Ifuto’o for the Defendant

JUDGMENT

Bird PJ:

1. By indictment filed on the 24^th August 2012, the defendant was originally charged with one count of attempted murder contrary to section 215 (a) of the Penal Code (cap 26). On the 5^th June 2020, an amended information was filed whereby the defendant was charged with one count of acts with intent to cause grievous harm contrary to section 224 (a) of the Penal Code (cap 26). A nolle prosequi was filed on the 6^th June 2020 in respect of the information filed on the 24^th August 2012. The defendant was thereby discharged of that information. When the defendant was arraigned on the amended information he had pleaded not guilty to that information and a trial into the matter was conducted on the above dates.
2. Section 224 (a) provides:
   • Any person, who with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person-
   • (a) unlawfully wounds or does any grievous harm to any person by any means whatsoever; .......
   • The maximum penalty for such offending is one of life imprisonment.
3. The duty to prove the charge against the defendant rests on the prosecution. In that regard they must prove beyond all reasonable doubt that the defendant committed the offence. The elements of the offence that the prosecution must prove to the required standard are:
   1. any person;
   2. with intent to;
   100. unlawfully wounds or does any grievous harm;
   4. to another
4. In support of its case, the prosecution had called a total of 4 witnesses. PW1 was the complainant/victim. His evidence-in-chief was to the effect that on the 4^th June 2012, he went to Toga Village with some boys to watch a dance which was held there. Upon arrival at the village, they went straight to the dance arena and PW1 was standing outside of the fenced area. People attending the dance were drunk and a fight broke out.
5. He further stated that part of the fence had collapsed and people were running all over the place. At that instant, the defendant ran towards him. He was holding a hook. He ran past him but turned around and struck him with a hook. PW1 knows the defendant because they live in one place. The hook was stuck to his forehead. He tried to remove it but it was hard. He fell unconscious. He did not know the defendant’s full name. He could recognise the defendant because the light was bright and it was moonlight.
6. The second prosecution witness was PW1’s brother, Derrick Soso (PW2). He testified that upon arrival at Toga Village, he went to his uncle’s house. The boys that came with him went straight to the dance arena. When they were telling stories, a fight broke out at the dance arena and he ran to that place. As he stood at the door of the fence, he saw people running all over the place. He saw the defendant was walking with a tuna hook. He saw the defendant coming from behind and hooked PW1 with the tuna hook. He said he was standing about ten meters away when he saw the defendant attacked PW1 with the hook. Upon seeing what had happened, he ran to his brother (PW1) but the defendant had escaped. He carried PW1 to Toga Health centre. His uncle Baddley Gilei assisted him to carry the victim to the clinic. He said the moon was shining brightly and there was also light from a nearby house. Upon cross-examination on the light from a nearby house, PW2 confirmed he did not tell the police previously. It was his story in court when asked.
7. The third prosecution witness was Cathy Vuda (PW3). This witness was 11 years old at the time of offending. She testified that the 4^th June 2012 was a Saints Day. She said that she was with her elder sister watching a dance when a fight broke out. She was standing with her sister when the defendant attacked PW1. After attacking PW1, the defendant ran away. She was standing about four meters away. She said that the lights had gone out during the fight. She could recognise the defendant because the moon was shining brightly. She said the lights at the dance arena went off but it was moonlight and it was bright. PW3 stated that the defendant is her uncle as his mother and her grandmother are sisters. In cross-examination, PW3 did not agree that it was dark when the lights at the dancing arena went off. The moonlight was bright and that was how she could identify the defendant as the assailant.
8. The final prosecution witness was Lonsdale Dikea (PW4). He was also 11 years old at the time of offending. He told the court that that he saw the defendant hooked PW1 on the 4^th June 2012. There was nothing to obstruct his view. It was moonlight and the moon was shining brightly. The light from the dancing arena was also on. The light at the dancing arena went off after PW1 was struck with a hook by the defendant.
9. Apart from the above witnesses, certain witness statements and documents were tendered as evidence in the trial with the consent of the defence.

Exhibit “A” was the statement of Barnabas Maevera dated 6^th June 2012,
Exhibit “B” was the statement of Janet Rikoni dated 7^th June 2012,
Exhibit “C” was the letter by Dr Clay Siosi dated 20^th September 2012,
Exhibit “D” was Patterson Pango’s medical card, and
Exhibit “E” was the photograph of the weapon.

10. I have read the content of exhibit “A”. That statement confirmed that the maker was not at the dance arena. He heard shouts and people making much noise so he ran towards that place. He saw Baddley Gilei and Baddley Gorosi carrying Patterson Pango and walking to Toga clinic. He saw a wound on Patterson Pango’s forehead and it was bleeding. He helped wash out the blood on the victim’s face and body. After he was attended by the nurse and given medication, the victim was carried to the seaside and put on a wooden canoe. The witness Barnabas Maevera and Mrs. Catherine Tila paddled the victim back to Mareka Village. Upon arrival at Mareka Village, the witness and Tome carried the victim to his house. He also took the victim to Tulagi Hospital on the 6^th June 2012. The victim was unable to talk and he could not eat on his own. He was merely fed by his father.
11. I have also read the content of exhibit “B”. That witness was the nurse that attended the victim on the night of the 4^th June 2012 at Toga clinic. She stated she treated the victim Patterson Pango on the night of the 4^th June 2012. The wound on the victim’s forehead was about an inch deep. She cleaned the wound and stitched it. The victim was kept at the clinic for observation that night until he was discharged at about 3.00pm the next day. On Tuesday, the nurse went to Mareka Village to check on the victim. On Tuesday night, the victim’s condition was critical and she gave him IV drip. He was referred to and was taken to Tulagi Hospital on Wednesday.
12. Exhibit “C” is a letter from Dr Clay Siosi. That letter confirmed that there was a wound on the victim’s right frontal forehead measuring 2x2 cm. He made an eventful recovery and was discharged on the 27^th June 2012. Exhibit “D” is a copy of the victim’s medical record and exhibit “E” is the photograph of the weapon allegedly used by the assailant on the victim. It was said to be a tuna hook.
13. At the close of the case for the prosecution, the defendant had opted to give evidence on the dock. The defendant stated that it was true he went to Tago on the night of the incident. He denied doing anything to Pango, the victim.
14. In the case against the defendant, the crucial issue that the court must determine is the identity of the defendant as the assailant on the night of the 4^th June 2012. All of the four elements comprising the offence of acts intended to cause grievous harm are in issue. If the court is not satisfied on the evidence adduced by the crown on identification, then the case collapses. The defence’s position is based on mistaken identity and the crown is hereby put to strict proof thereof.
15. For guidance on the issue of identification, I am referred to the case of R v Turnbull [1976] 3 WLR 445. In that case, the court had stated inter alia that in instances where the defence had raised the issue of identification, there is a special need for caution before convicting the accused in relation to the correctness of the identification or identifications. Caution must also be taken because a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.
16. Apart from the above, the court should also direct the jury to examine closely the circumstances which the identification by each witness came to be made. Those circumstances included:
    1. How long did the witness have the accused under observation?
    2. At what distance?
    3. In what light?
    4. Was the observation impeded in any way, as for example by passing traffic or press of people?
    5. Had the witness ever seen the accused before?
    6. How often?
    7. If only occasionally, had he any special reason for remembering the accused?
    8. How long elapsed between the original observation and the subsequent identification to the police?
    9. Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?
17. Taking into account the above guidelines, the court had noted that all of the prosecution witnesses (PW1, PW2, PW3 and PW4) stated in court that the incident happened very fast. I can therefore take it that there was no time for proper observation by the witnesses. The distance between the respective witnesses to the alleged scene of crime ranges from 10 meters to 4 meters apart. It is also noted that the incident occurred at night time. PW1 stated that the lights at the dance arena were on. In cross-examination PW1 stated that the music went off, the lights also went off. PW2 and PW3 stated that at the time of the incident, the lights in the dancing arena went off. PW4 stated that the lights at the dancing arena went off after the defendant had alleged to have struck the victim with a hook. All four witnesses stated that the moon was shining brightly and they were able to recognise the defendant as the assailant. PW2 further stated in his evidence in court that there was light coming from a nearby house. That piece of evidence was not included in his statement to the police dated 7^th June 2012.
18. All four prosecution witnesses also confirmed in court that they know the defendant because they are from the same community. That would mean that the defendant and the witnesses are known to each other.
19. An interesting feature that I have noted from the evidence of PW1, PW2 and PW3 is the fact that all of them have stated in court that when the fight broke out at the dance arena, people were running all over the place. If that was the status at that time, how could it be possible for anyone to recognise who was doing what and at what time and so on. Everyone would be in a state of confusion and no one in his/her right mind would be standing around and watching. More especially because the incident occurred at night time.
20. PW2 stated in court that he saw the defendant walking with a tuna hook when he arrived at the place where the fight took place. According to PW1’s evidence he was standing near the fence of the dance arena. A fight broke out and that had caused part of the fence to collapse. He looked and saw the defendant coming towards him and went past him. The defendant struck him with a hook from behind him. If the defendant was coming from behind the victim, how was it possible for the victim to see the defendant then? There was no explanation given by the victim whether he turned back and saw the defendant struck him with the hook.
21. It is also important to take note of the evidence of the witness Barnabas Maevera exhibited “A” which stated that on the night of the incident; he was at Mr. Puri’s house when he heard shouting and a lot of noise. That house was near the dance arena. He ran towards the dance arena as soon as he heard the noise When he arrived at the scene, he saw Baddley Gilei and Baddley Gorosi carrying Patterson Pango to Toga clinic.
22. In my view that piece of evidence would suggest that what had transpired on the victim on that night happened very fast. As soon as he heard shouting and a lot of noise, he ran to the scene which was not far from the house he was in. He did not see what happened to the victim. He only saw the victim being carried to Toga clinic by Baddley Gilei and Baddley Gorosi.
23. That piece of evidence contradicts the evidence of PW2 in court. PW2 had stated in court that he and Baddley Gilei carried the victim to Toga Clinic. He also testified in court that he paddled the victim back to Mareka Village.
24. The police statement of Barnabas Maevera dated 6^th June 2012 is tendered as evidence for the prosecution with the consent of the defence. When not challenged, that evidence is taken on its face value and I can put reliance on it. I will tend to rely on and put more weight on that piece of evidence because it would be true that he will see the end result of the alleged incident. Mr. Maevera had never mentioned PW2’s name or his presence at the scene of the offending or at Toga clinic and the trip back to Mareka Village in his whole statement.
25. From his own evidence in court, PW2 had consumed alcohol before the incident. He was at his uncle’s house when the incident occurred. He ran to the scene and saw the defendant saw the defendant struck the victim with the hook. From my analyses of the evidence of PW1, PW2 and that of the statement of Barnabas Maevera, the incident happened very fast. PW2 and Barnabas Maevera were both not at the scene. They were in houses away from the scene. When Barnabas Maevera arrived, he only saw the victim being carried to Toga clinic. Interestingly, PW2’s evidence upon his arrival at the scene, saw the defendant struck the victim with the hook. Another interesting aspect of PW2’s evidence is that he saw the defendant walking with a tuna hook. It was night time. He said the lights at the dance arena had gone off. Only in court he added to his police statement and said that there was light from a nearby house. It was also moonlight on that occasion.
26. From the above analyses and having observed PW2’s demeanour in court whilst giving evidence, I have some doubts as to the truthfulness of his evidence. I do not believe that he was at the scene on that occasion. He was drunk and he was somewhere else when the incident occurred. How could he have seen the defendant holding the fish hook at night when lighting in the area was poor.
27. When comparing the sworn evidence of PW2 to that of Barnabas Maevera, I tend to believe Mr Maevera’s statement. He was in another house when he heard noises and shouting. By the time he arrived he was only able to see the victim being carried to Toga clinic. The prosecution witnesses have stated in their evidence that the incident happened very fast. If that was the case, I would also tend to believe the statement of Mr. Maevera. He did not see what happened to the victim when he was struck with the hook.
28. I would have thought that if PW2 was somewhere else when the incident occurred outside the dance arena, then what he would have seen was the carrying of the victim to Toga Clinic. It would have been possible for him to see the striking of the victim with the hook.
29. It is also obvious from the evidence of the prosecution that PW1, PW2, PW3 and PW4 had observed the defendant over a short period of time. The lighting was poor except for the moon that was shining brightly that night. There were a lot of people moving in and around the dance arena including outside of the fence. Because of poor lighting and the fact that people were rowdy and moving about everywhere, the observation of the witness could have been mistaken. It is possible that none of the witnesses had actually seen the defendant striking the victim with a hook.
30. What would have been the motive behind the attack on the defendant? There is no evidence from all four prosecution witnesses about the motive for the said attack. Having discussed the evidence of the prosecution, I have serious doubts as to the identity of the assailant.
31. I am therefore not satisfied that the prosecution had proved beyond reasonable doubt the identity of the defendant as the person that struck the victim with a hook. As previously stated in this judgment, if I am not satisfied as to the identity of the assailant, the prosecution case falls through. In light of the fact that I am not satisfied beyond reasonable doubt as to the identity of the assailant, I do not need to discuss the other elements of the offence of acts with intent to cause grievous harm. I hereby acquit the defendant accordingly.

Orders of the court

1. I find that the defendant is not guilty of the charge of acts intended to cause grievous harm contrary to section 224 (a) of the Penal Code (cap 26).
2. The defendant is hereby acquitted of the charge.
3. The defendant is to be released at the rising of the court.

THE COURT
Justice Maelyn Bird
Puisne Judge