R v Lae [2006] SBMC 1; 3306.2005 (15 February 2006)

IN THE CENTRAL MAGISTRATES COURT
OF THE SOLOMON ISLANDS

Case No 3306/05

R

-v-

Joyce Lae

Before Deputy Chief Magistrate K F Chapman

15 February 2006

JUDGMENT

Introduction

The defendant is charge that on the 1 September 2005 she:-

1. intimidated a person namely Youngsley Oli contrary to section 231 (1) of the Penal Code, and
   
2. in a public place namely Kopin Market did use abusive words namely “nanali” with intent to provoke a breach of peace contrary to section 178 (n) of the Penal Code
   

The Law

Section 231 of the Penal Code reads: -

231.—(1) Any person who intimidates or molests any other person shall be guilty of an offence and liable to imprisonment for three years.

Section 178(n) of the Penal Code (Ch. 26) states:

‘Any person who –

(n) in any public place uses threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned

is guilty of an offence [...]’

Section 178(n) of the Penal Code (Ch. 26) provides that upon a defendant being found guilty under that section is ‘liable to a fine of ten dollars or to imprisonment for one month.’

In R v Martinez-Tobon [1994] 2 All ER 90; (1994) 98 Cr App R 375 Lord Taylor of Gosforth CJ, delivering the judgment of the Court of Appeal, held at pages 98 and 382 – 383 respectively:

‘[W]e consider for the present that the following principles apply where a defendant does not testify.

(1) The judge should give the jury a direction along the lines of the Judicial Studies Board specimen direction based on Bathurst. [(1968) 52 Cr App R 251; [1968] 2 QB 99; [1968] 1 All ER 1175; [1968] 2 WLR 1092]

[“The defendant does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the defendant to undermine, contradict, or explain the evidence put before you by the prosecution.”]

(2) The essentials of that direction are that the defendant is under no obligation to testify and the jury should not assume he is guilty because he has not given evidence.

(3) Provided those essentials are complied with, the judge may think it appropriate to make a stronger comment where the defence case involves alleged facts which (a) are at variance with prosecution evidence or additional to it and exculpatory, and (b) must, if true, be within the knowledge of the defendant.

[...].’ (emphasis added)

The facts in dispute

It is apparent form the evidence given in Court that there is some history of tension between the complainant and the defendant. It was suggested by counsel for the defendant that this motivated the complainant to make this complaint. I reject that suggestion.

The prosecution called two witnesses. The defence called one witness. The defendant did not give evidence. The defendant is not obliged to give evidence and her not doing so does not prove anything either way. It does nothing to prove her guilt. I make no other comment about that other than to say the defence case involves alleged facts, which are at variance with prosecution evidence and must, if true, be within the knowledge of the defendant.

On the evidence before me I accept that on 1 September 2005 Mr Oli was at the market and the defendant shouted the words that he said she did. The manner in which she did so was aggressive and she was moving around and using her hands.

He says he felt frighten by her actions. Counsel for the defendant suggested that the complainant being a man and the defendant a woman that this was not plausible. I have had the opportunity of seeing both in Court and I accept the evidence he gave. To the extent that the evidence of the defence witness differs from that of the prosecution witnesses I reject her evidence and accept the evidence of the prosecution witnesses.

Application of facts to the law

On the evidence I accept that threatening, abusive and insulting words were shouted by the defendant. The defendant also moved around and used her arms. Looking at the evidence that I have accepted objectively, I consider a breach of the peace was likely. This was so even though the complainant was some distance away initially. It must be remembered this took place at a market at night when the lighting was not good.

I accept the complainant was frightened by her actions. Admittedly he did not run away from the market but he did leave with a companion. I consider the behaviour of the complainant supports his evidence that he was afraid.

Conclusion

I find each of the charges have been made out.