R v Tofi [2021] SBHC 85; HCSI-CRC 261 of 2020 (10 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tofi
Citation:
Date of decision:	10 September 2021
Parties:	Regina v Lloyd Tofi
Date of hearing:	24. 25 & 26 August 2021
Court file number(s):	261 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant’s application pursuant to section 269 (1) of the Criminal Procedure Code is hereby granted. 2. The defendant is hereby acquitted of the charge of use of threatening words in public contrary to section 178 (n) of the Penal Code (cap 26). 3. The defendant is also acquitted of the charge of rape contrary to section 136F (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 4. Right of appeal
Representation:	Mrs Elma V Rizzu Hilly & Ms Myrella Cleven for the Crown Mr. Ben Alasia for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 178 (n) [cap 26], Penal Code (Amendment) (Sexual Offences) Act 2014 S 136 F (1) (a) [cap 26], S 136 F (1) (a) (b)
Cases cited:	R v Tome [2004] SBCA 13, R v Tomae [2005] SBCA 18, Doney v The Queen [1990] CLR 207

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 261 of 2021

REGINA

V

LLOYD TOFI

Date of Hearing: 24, 25 & 26 August 2021
Date of Decision: 10 September 2021

Mrs Elma V Rizzu Hilly & Ms. Myrella Cleven for the Crown
Mr. Ben Alasia for the Defendant

RULING PURSUANT TO APPLICATION UNDER SECTION 269 (1) OF THE CPC

Bird PJ:

1. The defendant Mr. Lloyd Tofi is charged with one count of use of threatening words in public contrary to section 178 (n) of the Penal Code (cap 26) and one count of rape contrary to section 136F (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The defendant had pleaded not guilty to both charges and a trial was conducted into the allegations.
2. At the close of the case for the prosecution, Mr. Alasia of counsel for the defendant indicated his intention of making an application pursuant to section 269 (1) of the Criminal Procedure Code for a no case to answer. Section 269 (1) of the CPC states:
   • When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any of the 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 no guilty.
3. The meaning and effect of s.269 (1) was discussed by Court of Appeal in the case of R v Tome [2004] SBCA 13 and further clarified in the case of R v Somae [2005] SBCA 18. The test to be applied at that stage is whether or nor there is evidence that the accused committed the offence. The court further stated that if there is some evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact.
4. In its ruling the Court of Appeal also referred to the case of Doney v The Queen [1990]! &! CLR 207 in which the High Court of Australia had formulated a test and thereby stated “It follows that, 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”.
5. It was further the court’s view that inconsistencies of evidence of the witnesses for the prosecution are not relevant at a no case stage. The court at that stage must take the prosecution evidence at its highest and in each case the court must consider all of the evidence most favourable to the prosecution. In summary therefore, the test that the court must apply at that stage of the proceeding 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.
6. Having discussed the effect and meaning of s. 269 (1) of the CPC, I will now turn to discuss the evidence that had been adduced by the prosecution at this stage. For the offence of using of threatening words in public contrary to section 178 (n) of the Penal Code (cap 26), there is no admissible evidence adduced by the prosecution in respect of that charge. The only witness called by the prosecution was PW3 and his evidence is inadmissible as it is clearly hearsay. I can therefore hold that there is no evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty of the said charge. The defendant has no case to answer and he is not required to state his defence in respect of count 1of the information. The prosecution had conceded the defendant had no case to answer in respect of count 1.
7. In respect of count 2 of the information, the prosecution had called two witnesses and tendered a number of witness statements and exhibits with the consent of the defence. The documents are as follows:
   1. Exhibit “P1” - Statement of Ambrose Waiyasu dated 5 February 2020
   2. Exhibit “P2” - Statement of Zimbran Gerati dated 5 February 2020
   3. Exhibit “P3” - Statement of Anita Betrontafia dated February 2020
   4. Exhibit “P4” - Statement of Ben Kwagnafia dated 6 February 2020
   5. Exhibit “P5” - Statement of Denis Maiguam dated 5 February 2020
   6. Exhibit “P6” - Statement of Lloyd Wasia dated 5 February 2020
   7. Exhibit “P7” – Two medical reports dated 6 February 2020
   8. Exhibit “P8” - Rough sketch of the crime scene
   9. Exhibit “P9” – Photographs of the crime scene and the victim’s clothes
8. The effect of the statements contained in exhibits “P1”, “P2”, “P#”, “P4” “P5” and “P6” are that they are all circumstantial in nature. The main evidence on count 2 of the information filed on the 16^th June 2020 is the evidence of the complainant, PW1 and PW2. PW1 stated in court that on the 30^th January 2020 at about 9 to 10 pm, she was preparing fish to bake at Richard Maru’s house. The defendant went to her and asked to drink with her. She refused but later accompanied the defendant to go and drink because she was forced, sworn at and rushed by the defendant to accompany him. They then went to the usual place of drinking and drunk 1.5 litres of homebrew. She said that the defendant forced her to drink the content of the bottle and it made her very drunk.
9. PW1 further stated that the defendant then took her into the coconut plantation. From there, she could not actually recall what the defendant did to her. She could however recall that she returned to her house that night and her mother was angry with her because she went home without wearing a shirt and the trousers that she was wearing was worn inside out. She recalled going back into the coconut plantation and slept. Her sister and brother went and took her home. She woke up the next morning and felt pain on her body especially her neck, her thighs and legs. When further asked what caused the pain on her body, she answered “ating hem go lo me” or “maybe hem go lo me”. Those phrases would mean that the defendant might know her.
10. In cross-examination, PW1 stated that on the night of the incident, the defendant and herself were drinking at a beach near the defendant’s house. She said that the incident was not the first time she had consumed homebrew drink. The complainant admitted being angry with the defendant because she wanted them to go to the defendant’s house but his mother was still awake. She also said in cross-examination that she was not drunk that night and she could recall everything that happened around her. She recalled meeting Trosky Leo that night. She was then standing with the defendant. The defendant was fully clothed and they were standing close to each other. She agreed that when Trosky Leo shone the torch on them that she ran away back to her house.
11. When PW1 was shown photograph 3 of exhibit “P9’ she stated that they brought the lavalava from the house and put it on the ground to be photographed according to the police officers instruction. She further stated that she knew that her mother was angry with her and that was why she went back to the plantation and slept there. She further admitted that it was because her mother and father were angry with her that she told them that the defendant forced her to drink with him. She further admitted that because her mother and father were angry with her that she made up the false story about the defendant. She confirmed in cross-examination that she had a boyfriend and she had had sex before the incident of the 30^th January 2020.
12. In re-examination, PW1 stated that she was unclear about the questions put to her in cross-examination. In re-examination, she said that she did not see Trosky on the night of the incident. She was unsure whether the defendant was wearing clothes but she was not. She was also unsure whether Trosky shone the torch to them. When further asked about the 1.5 litre of homebrew, she said that she was not sure if the bottle was only about halfway when she told the defendant for them to go to the defendant’s house. When she was asked to clarify the story about the lavalava, PW1 stated that they brought the bigger piece of the lavalava from the house and the smaller piece was retrieved from the bushes. She further stated that her father wanted to sort out the matter but the defendant wanted to fight and it was reported to the police.
13. The second prosecution witness was Trosky Leo. PW2 stated that on that night, he got his father’s torch to go to the other side of the village. As he walked along the road, he heard a noise and shone his torch towards the source of the noise and he saw two people. They were the defendant and Damaris. He saw the defendant ontop of the girl and having sex with her. The girl did not move. He could recognise both of them because they are from the same village. He then left and went back to his place. The next morning, he heard about the incident and he told them that he came and met them at that place. PW2 further stated that he saw the defendant having sex with the complainant in the middle of the road and indicated the place at photograph 7. The witness was about 6 to 7 meters away. He shone his torch briefly upon the pair.
14. In cross-examination, PW2 stated it was a dark night. The torch was not really bright. He admitted that because the story was spread around the village the next morning and that was why he said he saw the defendant and Damaris the night before, He denied that the defendant and Damaris were standing when he torched them. He further denied that Damaris was standing behind the defendant at that time. He however admitted that Damaris’s father and mother told him to say in court what he told the court about this case. In re-examination PW2 stated that Damaris’s father and mother did not tell him what to say in court. What he told the court was his own story.
15. For the charge of rape, the prosecution must prove the following elements namely:
    10. a person
    11. has sexual intercourse
    12. with another person
    13. without the other person’s consent
    14. knowing about or being reckless as to the lack of consent
16. In this case, the identity of the defendant as the alleged perpetrator is not is issue. The complainant personally knows the defendant. They are from the same village. Elements ii, iii, iv and v are all contentious.
17. It is noted that there is no direct evidence of penial-vaginal penetration from PW1, the complainant. She was unsure whether the defendant had actual sexual intercourse with her. In her own evidence she stated the following, “ating hem go lo me” or “maybe hem go lo me”. That answer in my view indicates uncertainty. She said she could not recall much of what transpired because she was very drunk. She did not know if the defendant did anything to her. She nonetheless could recall she was angry with the defendant because the defendant was not able to take her to his house as his mother was still awake. She could also recall she went back to her house and her mother was angry with her because she was drunk and not wearing any shirt.
18. The evidence of PW2 is my view is circumstantial in nature. He said he saw the defendant having sex with PW1. He shone his torch briefly on the pair. It was a dark night and he was about 6 to 7 meters away. His torch was not very bright. He did not tell anyone about his story until after he heard people talking about the incident the next morning. What PW2 had claimed to have seen is no evidence of penetration.
19. The medical report exhibited as “P7” also do not support penial penetration. In the medical reports, there was no evidence of scratches or bruises on PW1’s body. There was only a small superficial old laceration on her right knee.
20. Taking the prosecution’s evidence at its highest, I am unable to find that the said evidence is capable of supporting a conclusion beyond reasonable doubt that the accused is guilty of the offence of rape. I therefore allow the application pursuant to section 269 (1) of the Criminal Procedure Code. The defendant has no case to answer and he is hereby acquitted accordingly.

Orders of the court

1. The defendant’s application pursuant to section 269 (1) of the Criminal Procedure Code is hereby granted.
2. The defendant is hereby acquitted of the charge of use of threatening words in public contrary to section 178 (n) of the Penal Code (cap 26).
3. The defendant is also acquitted of the charge of rape contrary to section 136F (1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
4. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge