R v Mani - Judgment [2005] SBMC 2; CMC 391 of 2005 (9 June 2005)

IN THE CENTRAL MAGISTRATES COURT
OF THE SOLOMON ISLANDS

Case No 391/2005

R

-v-

SIMON MANI

Before Deputy Chief Magistrate K F Chapman

9 June 2005

Mr S Cooper for the DPP
Ms Bird for the Defendant

JUDGMENT

Introduction

The accused is charged with the following four offences:-

Count 1 assaulting Boaz Bero causing him actual bodily harm

Count 2 assaulting Ethel Manira

Count 3 being in possession of a firearm with intent to intimidate Boaz Bero to do an act did threaten him by his conduct to harm him with the firearm

Count 4 being in possession of a firearm with intent to intimidate Ethel Manira to do an act did threaten her by his conduct to harm her with the firearm.

The Law

As to Count 1

Section 245 of the Penal Code (Ch. 26) states:

‘Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and shall be liable to imprisonment for five years.’

In R v Clarence Barrington Morris [1998] 1 CrAppR 386 Potter LJ delivering the judgment of the Court of Appeal stated at page 393:

‘What constitutes “actual bodily harm” for the purposes of section 47 of the 1861 Act is succinctly and accurately set out in Archbold (1997 ed.) at para. 19-197 as follows:

“Bodily harm has its ordinary meaning and includes any hurt (our emphasis) or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling: Donovan [1934] 25 CrAppR 1, cited with approval ... in R v Brown (Anthony) [1993] UKHL 19; [1994] 1 AC 212 at pp. 230 and 242 respectively.

As to Count 2

Section 244 of the Penal Code (Ch. 26) states:

‘Any person who unlawfully assaults another is guilty of a misdemeanour, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, shall be liable to imprisonment for one year.’

As to Counts 3 & 4

Section 42 of the Firearms & Ammunition Act (Ch. 80) states (in part):

‘Any person who, being the owner or having possession of a firearm, with intent to intimidate another person to do or to refrain from doing any act threatens by word of mouth or any other conduct to harm that other person, or any other person whosoever, with the use of the firearm is guilty of an offence [...].’

The prosecution must prove ‘beyond reasonable doubt’ that the defendant had the intent to intimidate another person to do or to refrain from doing any act threatens by word of mouth or any other conduct to harm that other person, or any other person whosoever, with the use of a firearm.

Intention which is a state of mind, can never be proved as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions.

Section 42 of the Firearms & Ammunition Act (Ch. 80) provides that if a defendant is found guilty of an offence against that section, he/she is ‘liable to a fine of one thousand dollars or to imprisonment for two years or to both such fine and such imprisonment’.

The facts in dispute

The prosecution called two witnesses namely Boaz Bero and Ethel Manira who are the two complainants.

The defendant gave evidence and called four witnesses namely Malcolm Lake, Andrew Te’e, Bendict Idu and David Liiga.

The account of the incident given by the defendant and in various ways supported by the witnesses called by him is at odds with the account given by the two complainants.

Application of facts to the law

The standard of proof to be applied in this matter is conveniently summarised as follows:-

In R v Wilson Iroi (Unrep. Criminal Case No. 17 of 1991) Muria J stated at page 3:

‘I remind myself that the burden is on the prosecution throughout to satisfy the Court beyond reasonable doubt of the guilt of the accused. If there is doubt, slight though it might be, the accused must be given the benefit of that doubt. The overriding guiding principle in all criminal trials must be that a person charged with a criminal offence must be presumed to be innocent until proved guilty or has pleaded guilty. That principle is enshrined in section 10(2)(a) of the Constitution [...].’

As I consider the evidence I have this standard at the forefront of my mind. I make the observation that normally when the defendants version of events is supported by four other witnesses, as is the case here, at the very least that would raise in the mind of the trier of fact doubt which would amount to the charges not being proved.

I have had the advantage of hearing and seeing the witnesses give their evidence. In doing so I am of the view the defendant was an unreliable witness as was Mr Te’e and Mr Idu. His first witness was evasive as was Mr Liiga who was prepared to change his evidence having observed the defendants body language.

Having had the opportunity of hearing all of the evidence, and in particular Exhibits 1-4, I am not satisfied that Malcolm Lake and Andrew Te’e saw what they said they saw. Indeed I am of the view the defendant and his witnesses concocted a story, which was consistent with his innocence but had no resemblance to the truth.

On the other had I found the complainants to be reliable witnesses who had the courage to come to Court and tell the truth. They were not in one another’s presence at all relevant times but on those occasions they were their evidence was largely consistent. There were differences, which with the passage of time one would expect.

Conclusion

Count 1

I am satisfied on the evidence to the degree required that the defendant struck Mr Bero which caused him injury which interfered with his health and comfort and was more than merely transient or trifling. In other words he caused him bodily harm.

Count 2

I am satisfied on the evidence to the degree required that the defendant struck Ms Manira.

Counts 3 & 4

I am satisfied the defendant held a pistol at close range to each of the defendants heads and made comment as to the consequence of pulling the trigger. When you put this behaviour in context with the assaults, which immediately preceded this action in my view the actions of the defendant fall into the category of intent to intimidate.

I am thus satisfied on the evidence each of the counts have been proved.