Regina v Mete [2017] SBMC 41; Criminal Case 83 of 2017 (6 September 2017)

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

Criminal Case No. 83 of 2017

REGINA
-V-
BOSETO METE

Date of Hearing: September 6, 2017
Date of Ruling: September 6, 2017

Mr. T. Mosese for the prosecution
Mr. R. Dive for the accused

RULING ON NO CASE TO ANSWER

The Application

1. In this application, the Court is to consider whether or not there is sufficient evidence for the accused to put his defence/case as required under section 197 of the Criminal Procedure Code (“CPC”).
   
2. The trial is in relation to the allegation arose from an incident that took place during a night of 28^th December 2016 at Tanuli area, where the accused, Boseto Mete, was said to damage the following properties: a house door, a speaker, containers, bags and other household items, belonging to the complainant or his elder brother, Francis Mete Junior.
   

The Evidence for the Prosecution

3. The prosecution called three witnesses namely; Francis Mete Junior, Cynthia Mete and Stanley Bosoboe to prove its case. The Memorandum of the Agreed Facts signed by both parties to this case later became an exhibit for the prosecution (Exhibit P1).
   

Law on No Case to Answer

4. It is a trite law that to decide whether or not there is a case to answer under section 197 of the CPC, it will base on the consideration of the prosecution’s evidence in relation to the elements of the offence instituted against the accused. So it is the evidence that will reveal or speak for itself for the determination of whether or not there is case to answer. The test is the sufficiency of the evidence and not merely on “some” evidence.
   
5. I must be reminded that it is not an avenue to consider matters regarding the inconsistencies of the prosecution’s evidence, the 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.
   
6. 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)

7. The key word 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.
   
8. I am also reminded as instructed by (then Muria CJ), in the case of R v Maenadi Watson, Smith Pitapio, Youngston Watson & Saro Norman^[3] the importance of the prosecution to adduce sufficient evidence for the allegation and not merely to adduce evidence just to establish the elements of the charge/offence.
   
9. The prosecution’s case is that the accused had damaged the properties itemised in the charge referred to in paragraph 2 above. The defence put the prosecution on strict proof of proving all the properties itemised in the charge during the trial.
   
10. Therefore, it is incumbent on the prosecution to prove with certainty and with sufficient evidence whether those properties were in fact damaged in order for the case to proceed to the next stage – to the defence case.
    

Question for Determination

11. So for the present case, is there sufficient evidence to proceed to the next stage of the trial?
    

Prosecution’s Evidence

12. I now turn to the evidence adduced by the prosecution.
    
13. Francis Mete Junior is the elder brother of the accused and the owner of the properties allegedly damaged by the accused. He stated that the accused and his cousin brother, Reminton, came to his area during the night of 27^th December 2016, purposely to see one of their sisters who returned from overseas. He was requested by the accused to go and asked if their sister would come to them. Francis went and told her that the accused was outside the gate but she refused because they were drunk and had disturbed her baby with loud music who she tried to hypnotise. He returned to them and told them what her sister had said and they demanded him to open the gate. He refused to let them in and so they returned.
    
14. Later on the same night, he received a call that the accused had acted disorderedly at their family residence at Tanuli. Hence, he boarded a taxi to Tanuli that night. He dropped and came closer to their house and saw the accused was armed with an axe and a wood shaped like a baseball bat and was sitting in front of their house. He left the area and at a further location, he called the accused by phone and accused him of what he just did was not appropriate.
    
15. Surprisingly, even though he was the alleged owner of the properties subject to the trial, there was absolutely no question and evidence being led to establish the properties he purportedly owned were damaged by the accused that night. The omission to do that is unknown but clearly, it is unfortunate for the prosecution in that regard. I expect at least, the owner should have confirm this but unfortunately, the prosecution has failed to elicit those important evidence.
    
16. The evidence of Cynthia Mete revealed that she was inside their family home at Tanuli with her family and her mother when the accused arrived that night. That was in the early hours of of 28^th December 2016. She woke up when the accused called her mother and when she came out, she observed the accused was angry with Francis Mete Junior for not allowing him to go and see his sister. She could hear the accused swore at Francis and later walked over to the kitchen inside the house. The accused went and took an axe and a stick used for pudding from the kitchen and walked to the door and struck it with that stick and axe. As a result, she saw the door was damaged and from where she stood, she could see a hole from that door as a result of the accused action.
    
17. The accused then moved to the garage and started to damage the properties that were packed in a container. She said she did not see the actual hitting of the objects but could see the back of the Accused when he was moving around in the container and was damaging the properties. She could able to see that with the artificial lights from their house.
    
18. I have listened to her evidence but there wasn’t much clarification of the exact properties she saw were damaged by the accused, but it appears that she could recall sets of CDs, phones, decoration for houses, about 3 or 4 cups for wines and some containers were damaged when questioned during cross examination. She saw the accused threw out the speakers but there was no evidence being led whether or not the speakers were also damaged as a result of the throwing out.
    
19. She was very responsive and a keen witness who somehow was not properly utilised in terms of the questions so that she would explain all the properties that were damaged as alleged in the charge.
    
20. The evidence of Stanley Bosoboe is more or less not supportive to either the defence or the prosecution. He is the first cousin of the accused. He gave his evidence simply confirming that he arrived at the scene after the incident had already occurred. He said that he carried the door that was left outside the house and put it back inside the area. He could see some properties were outside of the garage. However, he was unable to clarify or state whether the door was broken, the names of the properties that were left outside and whether or not those properties were in fact damaged.
    

Reasons for Decision

21. I start on the premise that the prosecution proceeded with a single charge that contains a house door, a speaker, containers, bags and other household items as the properties that were said to be damaged by the accused. Since the defence has put the prosecution on strict proof to all the properties in question, it is crucial that the prosecution must adduce sufficient evidence to establish all the properties that were contained in the charge. If it appears that only some of the properties were mentioned during the evidence but not all of them, I expect the prosecution to redress this by invoking section 201 of the CPC to amend the charge before it closes its case. Unfortunately, no amendment was made before it closes its case so the entire properties as itemized in the charge are subjected to this application.
    
22. The evidence of Cynthia Mete revealed the containers, the door of the house and the glass cups were the items that she saw the accused damaged that night. The evidence is not clear whether or not the speakers were also damaged, but as it unfolded, they were only thrown outside the house. Unfortunately, Cynthia was not given that opportunity to clarify that.
    
23. Also, there is absolutely no evidence from all the prosecution’s witnesses about any bag(s) being damaged as well taking into account that the damage of bags were also alleged in the charge. There is total silence of this aspect of the charge all throughout the prosecution’s case.
    
24. When the particulars of the charge were considered in their entirety against the evidence offered by the prosecution, it is my view, that there is insufficient evidence to show all the properties contained in the charge were damaged by the accused. There might be in reality all of them, but the evidence as it unfolded before me did not say so. The evidence is such that all the witnesses were only able to name few of the items that were purportedly destroyed as alleged in the charge. The evidence to prove the whole allegation contained herein is therefore incomplete and due to no amendment made by the prosecution before it had closed its case clearly exacerbated its case.
    
25. The charge came in a single package, alleging all the properties together in a single count. As I have stated, there was no amendment to delete some of the properties from the charge to reflect the prosecution’s evidence before the prosecution closed its case. Thus, without any amendment, I cannot reinvent/reconstruct the charge so that those properties that were named will proceed to the defence case. I can only do that if they are particularised in counts so that the surviving counts will proceed further. I am also unable to make any inference at this stage since no photograph was taken by police or tendered by the prosecution during the trial. Unfortunately, the Court cannot make any inference due to this omission.
    

Orders of the Court

26. Based on those reasons narrated herein, I must stop this kind of case and order the accused, Boseto Mete is acquitted forthwith the charge of wilful and unlawful damage, contrary to section 326(1) of the Penal Code.
    
27. 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](Unrep. Criminal Case No. 16 of 1997)