Regina v Tome [2011] SBMC 9; Criminal Case 866 of 2011 (19 August 2011)

IN THE CENTRAL MAGISRATES COURT

Criminal Case No. 866/2011

REGINA

vs.

JOSEPH TOME

Pros: Mr Andrew Kelesi
Defence: Mr S Valenitabua & Mr L. Hite

Date of Hearing: 16 August 2011
Date of Submission: 17th August 2011
Date of Ruling: 19th August 2011

RULING

(1) The Accused is charged with the offence of arson which reads as follows:

Statement of Offence

Arson: Contrary to section 319 of the Penal Code.

Particulars of Offence

Joseph Tome of Dalikoni village, Central East Guadalcanal, at Aliali village, East Central Guadalcanal in the Guadalcanal Province on 2nd July 2011 did wilfully and unlawfully set fire to a building the property of George Aleravu.

SUBMISSION OF NO CASE TO ANSWER

(2) At the close of the case for the prosecution counsel for the defence has made a submission that the defendant has no case to answer and has relied on Section 197 of the Criminal Procedure Code(CPC) which reads as follows:

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused."

(3) The test for submission of no case is set out in the cases of R v/s Lutu (1986) SBHC 16 where S197 of CPC was discussed.

(4) R v/s Tome SILRA 13 at para 4 – dealt with S269 of CPC which applies to the High Court trials and the test of course is different in the High Court to that applicable in the Magistrate Court – (because of the wordings of S197 of CPC).

(5) In Lutu Chief Justice Ward made it clear that the prosecution evidence must be taken to its highest (the same as the High Court) by saying a submission of no case to answer:

"It is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidences are credible and accurate and which are not. These are all matters for the conclusion of the evidence as a whole and, where there is evidences that could be result in a conviction by the court. Then the accused must be put to his defence."

CJ Ward had stated earlier in R v/Lutu as follows:

"Thus if at the close of the prosecution case I, as judge of fact, do not feel that there is sufficient evidence even at that stage on which I could convict, I must stop the case."

(6) The defendant is charged with the offence of arson and the elements of arson are as set out in the case R v/s Battlet (2008 SBHC 103; HCSI – CRC 327/2005 Naqiolevu J where it is stated:

(a) The defendant set the fire to the property;

(b) The defendant did so wilfully;

(c) The defendant set fire to the property unlawfully

EVIDENCE

(7) The evidence in this case is that George Aleravu's house was set on fire. He said did not see who set the fire as he was inside his house with his wife. He said that the fire was set at around 10.00 p.m whilst other witnesses say it was around 1.00am to 1.30a.m. George said that he heard a voice say "mi bonem house ia nao" I burn the house." He said that his house is a leaf hut house and the fire was set to the extension which was his kitchen. He said both his wife and he heard Tome's voice. He said his wife ran out of the house and called out to him and he took a pot of water and put out the fire. His wife shouted as to who burnt their house and one Stanley Keli came. He is his wife's brother and Stanley told them that Tome burnt the house. Tome and Stanley are brothers.

(8) Stanley Keli – did not give evidence in court. He made a statement to police on 9/7/11 and that was tendered by consent as Ex P5. In that statement it is not mentioned that he told George that Tome set fire to the house.

(9) Cecil Kilona is a villager from Alialisahaka and on 2/7/11 he was asleep when he was woken up by a voice. When he woke up he recognised Stanley and who appeared to be intoxicated. He said Stanley demanded $100 after informing him that his uncle nearly killed him and he refused to give the $100. As he was talking to Stanley his wife came and flashed her touch at another person and asked who is this person and in response Cecil said it is Tome Stanley's brother. Cecil said that Tome said to him and Stanley that he burnt the house.

(10) Johnson Suluolia's evidence is that he was part of this group of people that came to Alialisahaka from Tetesalau and he followed them. He said he wanted to see what they were going to do and he said he saw Tom ordered Bartholomew to burn the house. He said when Bartholomew set the 1st fire he put it out and then Tom Tomale threatened to cut him with a knife and then Bartholomew set another fire and he stood there quietly as he was frightened of the knife. He said the house belonged to George Aleravu and he came out and put out the fire.

Identification of the Defendant

(a) George said that he heard Tome's voice and he said I burn the house. He did not state that Tome was indeed the same person as the defendant in court whose voice he heard and if he was indeed referring to the defendant then why was he not asked as to whether the voice he heard belonged to the defendant .

(b) Cecil said that Tome was Stanley's brother and that he said to him and Stanley that he burnt the house. There is no evidence that Tome was indeed the defendant who confessed to burning the house –Nor is there any evidence that Tome was indeed the same person as the defendant or whether Tome was the defendant and Stanley's brother. This alleged confession is very vague. There is no evidence that the confession was relating to George Aleravu's house .

(c) Johnson Suluolia's evidence is in direct conflict with the evidence of George Aleravu. Johnson said that it was Bartholomew who set the fire upon orders of Tom and he later referred him to Tom Tomale. He did not clarify who this Tom or Tom Tomale was. Was he the same person as the defendant? In the absence of clarifications I would be left to conjecture as to whether this Tom or Tom Tomale is the same person as the defendant or a different person.

Conclusion

(d) I am satisfied that the evidence as it stand is not sufficient to convict the defendant therefore I upheld the submission of no case to answer and dismiss no charge against the defendant and acquit him.

Shafi Khan
Principal Magistrate