Regina v Saeni [2017] SBMC 14; Criminal Case 258 of 2016 (15 May 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 258 of 2016

REGINA

-V-

OSBORN SAENI


Date of Hearing: May 12, 2017
Date of Decision: May 15, 2017

Ms. O. Ratu for the prosecution
Mr. L. Waroka for Osborn Saeni

RULING ON NO CASE TO ANSWER

The Application

1. At the close of the prosecution’s case, Osborn Saeni, a co-accused of Patken Rere applied for no case to answer pursuant to section 197 of the Criminal Procedure Code (CPC). He believed that there is insufficient evidence (inclusive of the tendered exhibits) for him to put his defence for all arson charges instituted against him. Therefore, the court should stop the case at this stage and acquit him forthwith.
   

The Prosecution’s Case

2. The prosecution’s case against the accused is circumstantial and puts its case in the alternative. The prosecution opened its case in a more extended way by saying that the charges against him arose from a mob violence incident that occurred on 17^th April 2016 where he joined the group of boys from Malango and burnt 5 dwelling houses at Windridge area or alternatively, he participated in such a way for the purpose of enabling or aiding those persons to burn the houses at the material time. Those houses were owned by Jonah Bea, Henry Tila, Lawrence Mane, Sharon Dai and Joseph Tolaeni who at all times residents of Windridge area.
   

Law on No Case to Answer at the Magistrates Court

3. Since this is an application for no case at the Magistrates Court, my duty is to apply the rules relating to the test required under section 197 of the CPC.
   
4. Section 197 of the CPC states:
   

“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.” (Underlined mine)

5. The key word in the section is “sufficiently” which comes from the word ‘sufficient’. According to Australian Modern Oxford Dictionary,^[1] it defines ‘sufficient’ to mean enough while in Funk and Wagnalls Standard Dictionary of the English Language International Edition^[2] defines ‘sufficient’ to mean “Being all that is needful; adequate; enough.” Hence, this means as long as the prosecution produces/adduces enough evidence to the elements of the charge then the case must proceed to the next stage – that is, to the defence case.
   
6. The test to be applied at the Magistrate Court is well settled and has been overly cited in a number of case authorities. One such judicial exposition of the test is that of R v Tara.^[3] In that case, Palmer CJ, explained the test as follows:
   

“...in the Magistrates court, the test to be applied is that there is either no evidence or insufficient evidence to prove the element of the charge.”^[4]

7. The court in Tara also referred to the case of R v Maenadi Watson, Smith Pitapio, Youngston Watson & Saro Norman^[5] and R v Lutu^[6] to help explained the law on no case to answer in the Magistrates Court and concluded that the case of Lutu is the authority on an application for no case to answer at the Magistrates court.
   
8. In so far as the principles in Lutu’s case is set to follow, it is not my duty at a no case to answer to consider inconsistencies, honesty and credibility of the witnesses. They are matters for consideration at the end of the trial as a whole. My duty is to simply rule on the sufficiency of the prosecution’s evidence when taken its case at its highest.
   

Issue for Consideration

9. Therefore, for this application, the question for me to decide is; whether or not there is enough or sufficient evidence adduced by the prosecution to require Osborn Saeni to put his defence.
   

Relevant Witnesses

10. Only 4 out of the 7 witnesses gave evidence that they saw Osborn Saeni as one of the persons who joined the group that came to Windridge to burn the houses. They are Michael Gelu (PW3), Paul Popora (PW4), John Lirma (PW5) and Timothy Lengaina (PW6).
    
11. The evidence of Michael Gelu (PW3) revealed that when he went and looked at the group of boys who came to Windridge, he was able to see and recognise Osborn Saeni. He saw Saeni was holding a stone and looked like he was drunk. That observation was made before the burning of the houses.
    
12. Paul Popora (PW4) also identified and recognised Osborn Saeni wearing a black shirt and a jean when he was inside the group that came to Windridge. He saw him when he was hiding in a cassava garden for a distance he described from court room 2 to the main road. Saeni was holding a stone and was inside that group advancing towards Jonah Bea’s house. That was before the burning of the houses took place.
    
13. John Lirma (PW5) also revealed the similar evidence to Paul Popora and said that he saw Saeni pointed to his house and said “mifala kam naya.” It was after he was chased by one of them that he later returned to the settlement and he saw the houses were burnt.
    
14. Timothy Lengaina (PW6) stated in his evidence that he was able to recognise Saeni when the boys from Malango arrived. Those boys were armed with knives, axes, stones and sticks. It was not clear from his evidence whether or not Saeni was armed. He identified him when he was hiding in a bush close to the bridge.
    

Whether or Not there is Sufficient Evidence

15. From these different aspects of the evidence, these 4 witnesses have clearly narrated they identified him as one of the boys who came to Windridge before the burning of the houses occurred. There is evidence that he was armed with a stone, pointed to Lirma’s house and incited the boys as they advanced towards the houses. There is also sufficient evidence that it was only after that group Saeni team-up with had arrived at Windridge that the 5 houses were set on fire.
    
16. Despite no eye-witness to impute him as the one who physically set fire to the 5 houses, the evidence adduced by the prosecution sufficiently established the following:
    
    • ◊ First, that he came from a different village with that group of boys that morning to Windridge settlement;
      
    • ◊ Second, he was even armed with a stone and moved together with those boys in a direction leading towards the houses;
      
    • ◊ Third, he took no action to disperse the crowd but instead pointed to one of the houses as they advanced towards the said settlement;
      
    • ◊ Fourth, he uttered words to the effect that described he and the boys came for the unlawful purpose;
      
    • ◊ Fifth, he was not only present in the crowd but as the evidence unfolded, he actively participated or acting in concert with the group few minutes before the houses were burnt down; and
      
    • ◊ Finally, the houses were burnt down as a result of the rampage carried out by Saeni and his group. It only occurred when they arrived and not one that occurred before their arrival.
      
17. In my view, the evidence when taken at its highest is sufficient to show his actions resembled the others in the crowd, resulting in the burning of the 5 houses. Although he might be doing one thing while the others did other things, their actions when construed as a whole lead towards completion of what they had intended to do at Windridge - that is, the burning of the houses.
    
18. In a case where it rests entirely on circumstantial evidence, it is expected that there will be no positive or direct evidence to each of the facts in issue or the elements of the offence(s). It will only tend to establish the issue/elements by proving various facts when put together for the court to make its inference. In other words, circumstantial evidence is merely direct evidence indirectly applied. That is the approach that I take when deciding this application.
    
19. The sufficiency of the evidence under section 197 of the CPC does not require an application of mathematical formula or what extent the evidence must reach in terms of the number of paragraphs or witnesses before one can say that there is a case to answer. It only requires a judicial consideration and determination of all the facts adduced by the prosecution for the allegation. Once the court is of the view that the evidence is enough to warrant the case to proceed to the next stage then that finding is sufficed in so far as the requirement of section 197^[7] is concerned.
    
20. Having reached this finding, I am satisfied that there is sufficient evidence that he is part of the group that burnt the houses at Windridge area. The inference I accept is; he either burnt the houses or acted in a way construed for the purpose of enabling the other persons who they came together to Windridge area to burn the houses.
    

Decision/Order

21. It follows that the application by the defence is overruled.
    
22. Order accordingly.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] 3^rd edition, 2010, Oxford University Press, Victoria
^[2] Funk & Wagnalls Company, 1967, New York
^[3] [2005] SBHC 91
^[4] At page 2 of his Lordship judgment
^[5](Unrep. Criminal Case No. 16 of 1997)
^[6] [1985/86] SILR 249
^[7] Of the Criminal Procedure Code