Regina v Sogati [2012] SBMC 2; Criminal Case 82 of 2009 (24 April 2012)

IN THE CENTRAL MAGISTRATES COURT

Criminal Case No. 82/2009

R

V

ALICK SOGATI

Mr R Barry for Prosecution
Mr Anderson Kesake for Defendant

Date of Hearing: 10,11,12,13,17,18,19 & 20 May 2011
19 &20 December 2011
Date of Submission: 28 February 2012
Date of Judgment: 24 April 2012

JUDGMENT

(1) The Defendant is charged with 2 counts of perjury and 1 count of forgery. The charges read as follows:

Count 1: Statement of Offence

Perjury contrary to Section 102(1) of Penal Code

Particulars of Offence

That Alick Sogati of Varunga village, Choiseul Province at Honiara in the Guadalcanal Province on date 23rd March 2006, did wilfully make a sworn statement in a judicial proceeding knowing that statement to be false or not believing it to be true.

Count 2: Statement of offence

Perjury contrary to Section 102(1) of Penal Code

Particulars of Offence

That Alick Sogati of Varunga village, Choiseul Province at Honiara in the Guadalcanal Province on date 2nd November 2006 did wilfully make a sworn statement in a judicial proceeding knowing that statement to be false or not believing it to be true.

Count 3: Statement of offence

Forgery contrary to section 337 (3)(a) of the Penal Code.

Particulars of Offence

That Alick Sogati of Varunga village Choiseul Province, at Gizo in February 2006 with intent to defraud and deceive, did forge on a document a copy of a document intended to be used in evidence in any court of record.

Background

(2) This case relates to the hearing of the Ririo Council of Chiefs enquiry which took place between 17 to 19 August 2005 at Varunga Village and its decision which was dated 10/9/05 (EX P1 Tab 4 & 5)

(3) Lloyd Bosoboe (PW1) was the paramount chief of Sukuvai tribe in Choiseul. He was elected in 2003 by a Chief's Council meeting. In 2005 he was summoned to attend a hearing of Ririo Custom inquiry.

(4) This enquiry was requested by the defendant who was the spokesperson for Alison Pitakaji. The defendant Alick Sogati was not from Sukuvai tribe. He was from Ngatakobo tribe.

(5) Lloyd Bosoboe did not attend the enquiry as he had won a court decision in 1979 and Choiseul Provincial Government decision in 2005 relating to timber rights.

(6) Lloyd Bosoboe wrote a letter to the Ririo Council of Chiefs and objected to the meeting taking place but notwithstanding his objections the meeting took place in his absence.

(7) The Ririo Council of Chiefs enquiry amongst other things found that Alison Pitakaji was the rightful Chief of Sukuvai tribe. Alison Pitakaji is a relative of the defendant.

(8) The secretary of the Ririo Council of Chief Ezra Poloso also did not attend the enquiry as he was from Sukuvai tribe and in his absence the minutes of the enquiry was taken by Edison Biliki who was the vice secretary and the minutes was recorded in Babatana language.

(8) After the meeting concluded the chiefs and Edison Biliki returned to Susuka village where they went through the minutes and a decision was arrived at which was written by Edision Biliki in Babatana language and he later translated it in English language according to the best of his ability.

(9) There were no typing facilities in Susuka village so Edison Biliki went to Taro to have the decision typed. At Taro Edison Biliki met the defendant and he arranged to have the decision typed at the by Christine Dao the secretary of the Provincial Office. The defendant was the deputy premier of Choiseul Province at that time.

(10) After the decision was typed a copy was given to the defendant as he was going to Honiara on that day and it was only signed by Edision Biliki as the secretary and dated 10th September 2005. (EX P1 Tab 4)

(11) Later Edison Biliki returned to Susuka Village and the chiefs after going through the decision signed alongside their names and the decision still had the dated 10th September 2005.

(12) The defendant brought a copy of decision that Edison Biliki gave him and showed it to the Commissioner of Forest.

(13) After the chiefs signed the decision the chairman advised Edison Biliki to take the it to the Gizo Magistrate Court for filing. Edison Biliki also filled out Form 1 which according to him was also signed by the chiefs as well as the chairman.

(14) In February 2006 Edison Biliki came to Gizo to file the decision with the Gizo Magistrate Court and also to visit a nephew who was sick.

(15) Edison Biliki met the defendant at Gizo. His evidence before me relating to meeting the defendant at Gizo was as follows:

- The defendant met me at a butcher's shop;

- He asked if I had filed the judgment at the Magistrate Court;

- He told me that the decision that the chiefs signed needed to be corrected for spellings, grammar and names;

- After the defendant said the document needed to be corrected I told him I don't know what to correct;

- I told the defendant that I had no authority or power to correct the document because all the chiefs had signed it;

- After that he took the document from me and told me to follow him because he knows of a place which had a computer.;

- I sat outside in the verandah whilst the defendant went inside the building where the computer was;

- This building was opposite the RTC shop in the main street of Gizo;

- After the defendant made changes to the document he came out and handed the document to me and told me to take it to Gizo Magistrate Court for filing;

- I looked at the document and noticed that some names and words were changed and I did not ask him about the changes and the defendant told me that the document is now correct;

- I did not know if I had any authority to change the document but I took it and submitted it to the Magistrate Court on the same day;

- The defendant kept a copy of the document that he changed;

- Form 1 was filled at Susuka village and all chiefs had signed it and it was attached to the judgment. I can't recall if Form 1 was attached to the judgment when I gave it to the defendant;

- The defendant did not go with me to the Gizo Magistrate Court and at the court I handed over the judgment and Form 1 to the clerk;

- I did not know the purpose or reason for filing the judgement at Gizo Magistrate Court but the chairman had advised me to do so.

(16) After the defendant got copy of the amended judgment he annexed it to his affidavit dated 23/3/06 in civil action No. 371/2005 in the High Court (See Ex P1 Tab 7) as annexure "AS2". This is subject to count 1 of the charge.

(17) On 2/11/06 the defendant filed another affidavit in action No. 371/2005 and annexed a copy of the judgment/decision which was marked as Ex "AS1". This is count 2 of the charge. Ex AS1 is same as EX AS2 in all aspects except that Ex AS1 bears the court seal of the Gizo Magistrates Court.

(18) The defendant denied that he made any changes to the exhibits AS1 and AS2 prior to its filing in the Gizo Magistrate Court and he said he was handed a copy AS2 by Edison Biliki and he received a copy AS1 in an envelope whilst Edison Biliki's evidence is that the changes to the judgment of Ririo Council of Chiefs was made by the defendant.

(19) Edison Biliki's evidence is very crucial in this case. If he is believed then the defendant would be found to have forged the judgment of the Ririo Council of Chiefs and subsequently used it in his 2 affidavits in the High Court when he knew that it was forged.

(20) Prior to giving evidence in this case the Edison Biliki gave evidence against the defendant at Gizo Magistrates Court in 2010 where the defendant was tried for the same charges. This trial was aborted and it was heard de novo by me at the Central Magistrates Court.

(21) During the course of giving evidence at Gizo Magistrate Court Edison Biliki became sick. His evidence was that he gave a copy of the judgment to Alick Sogati and he returned to Susuka village and discussed the amended judgment with the chairman who called the chiefs and some came. He further said that he was satisfied that the amended judgment was accurate.

(22) Edison Biliki stated that he only became sick because he was confronted with an affidavit that he sworn in case number 112/2006 in the High Court. This affidavit was dated 18/7/06 and was filed on behalf of the defendant who was the applicant in case number. 112/06. He said he was misled by the defendant in swearing this affidavit. He deposed as follows on paragraph 7 of his affidavit:

"I later re checked my draft copy and noticed that the draft copy I had given to the applicant contained grammatical and spelling errors. The errors noticed did not at all change the substance of the chief's decision. I later re-corrected the errors and prepared the final draft which the chiefs eventually signed. After realising the errors on the first draft given to the applicant I tried to contact the applicant to inform him about it, however, I was not able to do so".

(23) In cross examination Edison Biliki said the affidavit was incorrect as he was misled by the defendant in swearing it whilst at paragraph 11 of the affidavit he stated "That all the matters stated herein are true."

(24) Edison Biliki made 3 statements to the police. His statement dated 10/10/08 was the first one. In this statement he stated that he did not make any changes to the decision/judgment of Ririo Council of Chiefs. He further stated that he had no idea of who made the changes. He did not say that the changes were made by the defendant.

(25) Form 1 was attached to the judgment of the Ririo Council of Chiefs when it was filed at Gizo Magistrates Court. The chiefs denied signing Form 1. Their evidence is that they only sign one copy of judgment which was Ex P1 Tab 5 and they also denied signing the judgment which was filed at Gizo Magistrates Court (Ex P1 T9) so who put the chiefs signatures on the Form 1 and the judgment attached thereto? Form 1 was not given to the defendant and nor was it was suggested by Edison Biliki that he signed Form 1 or the judgment. Edison Biliki had Form1 with him all the time and he said it was signed by the chiefs who dispute the signatures so this puts Edison Biliki's credibility in issue.

(26) Edison Biliki has given different versions about the changes to the judgment of Ririo Council of Chiefs. In his evidence before me he said the defendant changed the judgment whilst in his previous version in particular his affidavit he completely exonerated the defendant and he said to the police he was baffled as to who made the changes to the judgment. In his evidence in Gizo Magistrate Court he did not implicate the defendant.

(27) In light of the different versions given by Edison Biliki I am unable to accept his evidence and I therefore find that the prosecution has failed to prove its case beyond all reasonable doubt and the defendant is acquitted on all 3 counts.

Shafi Khan
Principal Magistrate