R v Olapala [2023] SBHC 40; HCSI-CC 04 of 2023 (8 June 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Olapala
Citation:
Date of decision:	8 June 2023
Parties:	Rex v John Mark Olapala
Date of hearing:	7 June 2023
Court file number(s):	04 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. There is no case for the Accused to answer. A finding of not guilty is recorded and he is discharged pursuant to section 269 of the Criminal Procedure Code.
Representation:	Mr A Kelesi for the Crown Mr m Holara for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 199, Criminal Procedure Code S 269,
Cases cited:	Regina v Tome [2004] SBCA 13, R v Somae [2005] SBCA 18, Bosamete v Regina [2013] SBCA 16, Waidia v Regina [2015] SBCA 12, R v Bird [1985] EWCA Crim 2, R v Williams 9g)[ 1983] EWCA Crim 4, R v Oatbridge 94 Cr App R 367,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 4 of 2023

REX

V

JOHN MARK OLAPALA

Date of Hearing: 7 June 2023
Date of Oral Decision: 7 June 2023
Date of Written Decisions: 8 June 2023

Mr A Kelesi for the Crown
Mr M Holara for the Accused

Ruling on section 269 of the Criminal Procedure Code

Introduction

1. The Accused faces one charge of manslaughter contrary to section 199 of the Penal Code. The particulars in the Information read as follows:
   • “That John Mark Olapala of Dovele Village, Vella la Vella, Western Province, on 12^th June 2021 in front of the Kukum SDA compound in Honiara, Guadalcanal Province, did unlawfully cause the death of Alick Time.”
2. The Crown presented evidence from 9 witnesses. PW1 and PW2 gave evidence in Court and the remaining seven witnesses had their evidence tendered by consent. In addition the Crown presented 3 exhibits. PE1 A and B was a booklet of photographs with PE1A being photographs taken during the autopsy of the Deceased and PE1B being scene photographs. PE2 was the record of the police interview with the Accused recorded on 18 October 2022. PE3 was the autopsy report from Dr Maraka, the pathologist.

The Application

3. At the close of the Crown case the Court received submissions from counsel as to whether the Accused had a case to answer pursuant to section 269 of the Criminal Procedure Code. Section 269 of the Criminal Procedure Code provides:
   • “269.-(1) 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 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.”
4. The test to be applied has been settled in Regina v Tome [2004] SBCA 13 where the Court of Appeal said at paragraph [10]:
   • “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 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.”
5. This has been approved in R v Somae [2005] SBCA 18. In Somae the Court of Appeal was considering the requirements of section 269 where the defence put forward was one of self defence. The Court said :
   • “Prosecution evidence that was to be considered for the purposes of a no case submission had to be capable of amounting to proof beyond reasonable doubt of the accused's guilt. It was not enough if it was merely capable of proving the possibility of guilt. It had to be capable, if accepted, of proving guilt beyond a reasonable doubt. Whether it was right to take the evidence at its highest or most favourable to the Crown was, of course, ultimately a matter for the tribunal of fact. But in order to establish a case to answer, there had to be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt.”
6. In Bosamete v Regina [2013] SBCA 16, the Court of Appeal approved the test set out in Somae and in Tome.

The Evidence

7. In this case there is little dispute in the evidence. At a time between 2.00am and 3.00am on 12 June 2021 the Accused was with PW1 outside the SDA compound in Kukum. The Accused had a cell phone with him. A group of young men probably in their 20s arrived in the vicinity. One of their number stole the cell phone of the Accused and ran off. The Accused asked for it to be returned to him. The group then attacked the Accused. He was kicked in the neck from behind and knocked to the ground. He asked PW1 to help get his cell phone back. PW1 was then set upon. The estimate of numbers attacking the Accused and PW1 vary but it seems likely to have been between 5 and 9 individuals. The Accused and PW1 were kicked and punched. PW2 did not see the start of the violence but did hear the request to give the phone back.
8. In the course of the attack the Accused threw a punch with his left hand. A Court could find that it was this punch that caused the Deceased to fall to the ground. It is likely that the fall to the ground caused injury to the back of the head of the Deceased. He suffered a subdural haemorrhage which led to his death. After he fell to the ground the group attacking the Accused and PW1 continued the attack then dispersed. PW1 was able to find a break in the attack and ran away past the SDA bus stop. The Accused tried to get into the SDA compound and managed to climb the fence to do so. He then ran home. He returned later to the front gate and spoke with the security. He acknowledged having punched the person who fell to the ground who was undoubtedly the Deceased. The evidence recited is consistent with the evidence of PW1 and PW2 and with those from the attacking group with the exception of PW3. While PW3 does not provide the same information he confirms the request to return the cell phone and the breaking out of fighting but is silent as to how that started except that it was three on one at that point. He says he ran off and returned later to assist the Deceased.
9. The Accused spoke to the Police and the record of that conversation is recorded as PE2. The Court of Appeal in Somae said:
   • “For the purposes of considering whether there was a case to answer, the learned trial judge was required to ignore the respondent’s assertions that he was under attack and had acted in self defence.”

Discussion

10. When there is evidence supporting a claim of self defence it is for the Crown to adduce some evidence capable of proving beyond reasonable doubt that the Accused was not acting in self defence. The Court of Appeal in Waidia v Regina [2015] SBCA 12 set out what the Crown is required to prove to rebut self defence. The Court said:
    • 13 “The burden of proof remains with the prosecution when the issue of self-defence is raised. The prosecution must adduce sufficient evidence to satisfy the court beyond reasonable doubt that the defendant was either:
    • not acting to defend himself/herself or another; or
    • not acting to defend property; or
    • not acting to prevent a crime or to apprehend an offender; or
    • if he was so acting, the force used was excessive.”
    • 14. Failure to retreat when attacked and when it is possible and safe to do so, is not conclusive evidence that a person was not acting in self-defence. It is simply a factor to be taken into account rather than as giving rise to a duty to retreat when deciding whether the degree of force was reasonable in the circumstances. It is not necessary that the defendant demonstrates by walking away that he does not want to engage in physical violence: R v Bird [1985] EWCA Crim 2; 81 Cr App R 110.
    • 15.In assessing the reasonableness of the force used, the court should consider, inter alia, two questions:
    • was the use of force necessary in the circumstances, i.e. was the a need for any force at all?, and
    • was the force used reasonable in the circumstances?
    • Both questions are to be answered on the basis of the facts as the accused honestly believed them to be R v Williams (G) [1983] EWCA Crim 4; 78 Cr App R 276, R. v Oatbridge, 94 Cr App R 367. To that extent it is a subjective test. There is, however, an objective element to the test. The court must then go on to ask whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.”
11. Applying the tests to this case. There must be evidence on which, taking the Crown case at its highest the prosecution could prove beyond reasonable doubt that the Accused was not acting in defence of himself or PW1 at the time he punched the Deceased. If there is no evidence on which the Crown could exclude that possibility then the punch could not be said to be unlawful. In the present case there is only PW3 who does not make it clear that the Accused was under attack. However his evidence is neutral about what happened. He also did not see what had caused the Deceased to fall but said he left when there was fighting. His evidence is not capable of rebutting the claim of self defence. His evidence was similar to the evidence described in Somae as:
    • “We observe that was no evidence contradicting the respondent’s account of events (with the exception of whether David had possession of a knife, and that might well have been the respondent’s mistake since David himself said that the deceased had been attacked by someone – not the respondent – with a knife). The Crown submission in this Court appears to assume that disregarding the respondent’s assertions about acting in self-defence means that it should be inferred that he had not done so. This is an obvious logical fallacy. In short, the state of the evidence was such that the respondent might have acted in self-defence or he might not have so acted, with no evidence of the fact, one way or another, or capable of resolving the issue. In order to be satisfied as to this element, the tribunal of fact would inevitably have needed to speculate about what had happened”
12. In the present case there is no evidence to rebut the claim of self defence. A punch that is thrown in self defence is not unlawful unless excessive force is used when looked at objectively. There is no evidence that the Accused used excessive force in the circumstances. The Crown case taken at its highest then has no evidence that the Accused caused the death by an unlawful act. The Accused is therefore entitled to be acquitted as there is no evidence on which a Court could find the charge proved beyond reasonable doubt.

Order

1. There is no case for the Accused to answer. A finding of not guilty is recorded and he is discharged pursuant to section 269 of the Criminal Procedure Code.

By the Court
Hon. Justice Howard Lawry
Puisne Judge

Addendum

13. In this trial photographs were admitted by consent. When there are scene photographs they should not be in the same photograph booklet as the autopsy photographs as the scene photographs are likely to be shown to civilian witnesses with the risk that they may see a photograph of the deceased taken during the post mortem examination.
14. The scene photographs are produced to assist the Court with the evidence from the witnesses. They are not to be used to adduce evidence of what happened. In this case the scene photographs included photographs of potential witnesses pointing at a particular place. That is entirely inappropriate. If a place in the photograph requires something to be pointed out that is to be done by evidence in Court. A potential witness should not be placed in a photograph to point out something. It is inadmissible. If the person in the photograph is not called to give evidence it is an attempt to get evidence before the Court and with the risk of influencing witnesses who are called. If the person in the photograph is called it would be inadmissible as a prior consistent statement.
15. Just as the photographs cannot have labels asserting that something happened at a particular place, because that is inadmissible hearsay on the part of the photographer, so too witnesses must not be asked to be photographed pointing out a place of interest.