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Regina v Vajua [2017] SBMC 47; Criminal Case 678 of 2016 (28 September 2017)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS


CRIMINAL JURISDICTION


Criminal Case No. 678 of 2016


REGINA


V


NELSON VAJUA


Date of Hearing: 21st September 2017
Date of Ruling: 28th September 2017


Ms. O. Ratu for the Prosecution
Mr. D. Kwalai for the Defendant


RULING ON VOIR DIRE AND NO CASE TO ANSWER


  1. Two rulings for me to decide. One is in relation to the voir dire and the other, the no case to answer.

Voir Dire


  1. On the 12th of September 2017, I verbally ruled the record of interview of the defendant, Nelson Vajua, be excluded from the trial. I now published my reasons for that.
  2. On the 27th of September 2016, the defendant, Nelson Vajua, was arrested by Tetere Police on a suspicion that he was the one who set fire to a building owned by Doreen Peda on the 22nd of July 2016 at Vatumauri area in the Guadalcanal Province.
  3. He was interviewed by a police officer, Polycarp Saliato and witnessed by another police officer, Elvin Ghala. That interview commenced in the afternoon at about 1:40pm inside the Tetere Police Station. After the initial formal questions, the defendant was asked whether he wanted to seek legal advice before proceeding further with the interview.
  4. He preferred that option and as a result, he talked with a lawyer at the Public Solicitors Office through telephone. He was advised to remain silent and would only talk in Court if his matter ends up in the Court.
  5. The interview recommenced and he informed the interviewing officer of his right not to answer any more question and made it clear to the police officer that he preferred to talk only in Court. Despite that clear utterance, Saliato persisted to ask him questions which eventually made him fully admitted to police that he was one who burnt the building in question.
  6. The issue here is whether or not the interviewing officer had breached the Judge Rules[1] when he continued to question the defendant after the defendant had told him he wish to remain silent during the interview. If the answer to this question is in the affirmative, then the next question is whether or not it would be unfair to the defendant to use his statement against him in trial.
  7. The first issue herein has been dealt with or addressed in a High Court case of R v Havimana[2] which I am inclined to follow. In that case, Mwanesalua J, discussed the issue of “Right to Silence” and referred to a number of case authorities to support his view.
  8. In that case, the accused, Derol Havimana, was arrested by the police and brought over to Honiara from Isabel for interrogation. During the course of the interview, the accused made admissions about his involvement in the commission of the offence to the police and this occurred from subsequent questionings after he had already told the interviewing officer his decision to remain silent. During the voir dire hearing, the record of interview was excluded. Mwanesalua J, in his ruling referred to the judgment of R v Evans[3] as a case on point. In that Evans case, the interviewing police officers continued to question the suspect after the suspect told them that he did not wish to say any more except in the presence of his solicitor. When excluding the admissions made by the suspect, the Court in Evans referred to the judgment of Napier CJ, Mayor and Chamberlain JJ in Lenthal v Curran[4] where their Lordships echoed:

"In view of what happened in this case, it is apparent that there are police officers who are under some misapprehension as to their duty, we think that the time has come for this court to say, quite bluntly, that it is not permissible for a police officer to persist in interrogating persons in custody beyond the point at which they intimate the desire to say nothing or no more”[5]


  1. The Court continued to explain:

“We can understand the impatience of a detective, who meets with an obstacle of this kind, when he wants to get own with the business; but the answer is that caution is not a mere form of words. The fact is that the suspect is not obliged to say anything, and, if he declines to speak (save in the present of his solicitor), the police officer who allows zeal to outrun discretion or who tries to blow-beat or trick the suspect into answering may be doing a grave disservice to the force to which he belongs, and to the administration of justice.”[6]


  1. I have looked at the case of Havimana following the decision of Mwanesalua J, and noted that it was not appealed nor overturned by any subsequent Court. Hence, it remains a binding authority on this Court.
  2. In the present case, I do not need to repeat the facts that uncovered how the admissions were procured by the interviewing officer, Polycarp Saliato. From the record of interview, it clearly showed that despite the defendant had informed the police officer, Saliato that he wished not to answer any more question after he had been advised by a solicitor, Saliato kept on asking him questions resulting in his admissions. The record shows that he had told Saliato of his decision not to answer any more question but preferred to talk only in Court more than one occasion, yet this was utterly ignored.
  3. In my view, this is persisting questioning and one that makes the right to remain silent of the defendant during the interview meaningless. Hence, it is my view that the admissions that were made after the defendant had decided to remain silent is one that was obtained or procured in a manner and circumstances not fair to the defendant. Thus, it will also not fair to use it against him in trial.
  4. Consequent to this finding, I order that his admissions to questions 24-38 of the record of interview[7] for the present case be excluded forthwith from the trial.

No Case to Answer


  1. Following the evidence adduced by the four (4) prosecution witnesses during the trial namely; Reuben Misila, George Pidi, Doreen Peda and Clifford Morris, the defence now applied under section 197 of the Criminal Procedure Code (“CPC”) to dismiss the charge against the defendant. The defence’s view is that the evidence is too tenuous, flimsy or insufficient to make out a case against the defendant, Nelson Vajua.
  2. The defence mounted this argument in light of the prosecution’s case where it rests solely on his admission purportedly made to a witness that he was the one who burnt the building in question where during the trial that piece of evidence was not established.
  3. The application for no case to answer often arose from one’s own intellectual belief, perception and assessment of the evidence adduced by the prosecution. Once the application is successful, the case will be discontinued from progressing to the defence case.
  4. The main purposes of the application is to prevent the defendant from entering and proving his innocence which is against the notion of the burden of proof in any criminal trial. On the trial management aspect of it, it also prevent continuation of trial with flimsy evidence thereby saving the Court’s time and resources as well as the expenses of the parties to the proceeding.
  5. The law on no case to answer is provided under section 197 of the CPC:

“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)


  1. The key word to note in that proviso is “sufficiently”. Until date, there is no definition of the word “sufficiently” in the CPC or even in the Interpretation and General Provisions Act[8] for purposes of defining or explaining the sufficiency of evidence required at the no case to answer. In the absence of this, the Court normally looks to case precedents as a guide to explain this requirement.
  2. In the case of R v Tara[9], the Court in construing this provision had referred to the decision of then Muria CJ in R v Maenadi Watson, Smith Pitapio, Youngston Watson & Saro Norman[10] to bring to light the meaning of section 197 when considered in whole what must be satisfied when deciding whether or not a case has been made out against the defendant:

“The words “it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence” in section 197 clearly bore out the basis for the stand which I pointed out. Thus, it is not simply a matter of the prosecution adducing evidence to establish the essential element of the offence, but adducing evidence which is sufficient to make out a case against the accused. That is what the judge must be satisfied with under section 197 Criminal Procedure Code”[11]


  1. Therefore, as authoritatively laid down in the case of Tara, it is not a matter of simply adducing evidence to establish the elements of the indictment/charge, but adducing evidence that is sufficient to make out a case against the defendant.
  2. Having guided by these authorities, I now turn to the evidence given by the prosecution witnesses to ascertain whether or not there is sufficient evidence for the defendant herein to make his defence, bearing in mind the case for the prosecution rests entirely on the defendant’s admission.
  3. Only three witnesses are relevant for me to consider. They are; Reuben Misila, George Pidi and Clifford Morris.
  4. Reuben Misila is one of the witnesses whom the prosecution heavily relied on to establish the admission purportedly made by the defendant. According to his evidence, he and George Pidi met the defendant at a location called Valelokea while they were on their way to Pit 3 in the Goldridge area. The defendant appeared from the bush and asked him to call the police so that he could surrender himself. He wanted to give himself to the police because the problem he did was bigger than what Clifford had done to him. He continued to say that he did not have any money because he did not have a job.
  5. He recalled the defendant said to him that he wanted to surrender because he was suspected as the one who burnt Doreen’s house and that he didn’t have any money to recover all the properties of Doreen that were destroyed or burnt.
  6. George Pidi also said that he and Reuben Misila met the defendant along the road. He heard the defendant asked Reuben to call the police so that he would surrender him to the police because his mother and father could not able to help him to solve his problem. That is the extent of what he heard the defendant said to Misila while he was standing close to them.
  7. The essence of Clifford Morris evidence is that the defendant was jealous of him over a suspicion that he was having an extra-marital affair with his wife. They managed to settle this issue by shaking of hands but it was not fully settled because they were living at separate locations thereafter, making it hard for them to work together to fully resolve the issue between them. He said their house was burnt when he was living at another village called Turaranga.
  8. I have considered all the evidence adduced by the prosecution and come to the following conclusions:
  9. It is my view that when these aspects of these evidence are considered in whole, the purported admission made by the defendant to Misila and Pidi is flimsy, unconvincing and lacking in details that are ordinarily expected to constitute a case against the defendant as required under section 197 of the CPC. It is inherently improbable and incapable of supporting a conclusion beyond reasonable doubt that the defendant is guilty of the charge if the matter proceeds to the next stage.
  10. In this case, there is no issue that the house was burnt since the case for the prosecution is based on the admission of the defendant as the one who burnt the house. Therefore, it is expected that in order to achieve that theory of case, at least there must be an admission from the defendant that he was the one who set fire to the building/house in question. Unfortunately, this did not occur in this case. What he uttered to Misila the material time was totally different to an admission. When carefully considered, it was merely a general statement that he was being suspected by the villagers as the one who burnt the house and that’s all. In my view, this does not come near to an admission because there is nothing in that statement to show that he was the one who set fire to the building and how he executed it.
  11. Even if I were to consider the evidence that he didn’t have money to pay for Doreen’s properties that were damaged in the fire and the fact that his relationship with Clifford Morris is yet to be fully mended, they are so little and unconvincing when considered in whole for the purposes of the sufficiency of evidence required under section 197 of the CPC.
  12. In the case of R v Lutu[12] then CJ Ward stated:

“Where, however, there is some evidence but it is so little or unconvincing that it is insufficient even if uncontradicted by the defence to make a conviction possible, the court should not require the accused to make a defence.”[13]


  1. This is one of the cases that falls under this category. Therefore, as a trier of fact, I must stop the trial at this stage and order the defendant, Nelson Vajua, be acquitted forthwith of the charge of arson contrary to section 319 (a) of the Penal Code.
  2. Right of appeal applies.

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(Augustine Aulanga – Principal Magistrate)

[1] Solomon Islands Judge Rules
[2] [2010] SBHC 108; HCSI-CRC 136 of 2009
[3] [1962] SASR 303
[4] [1993] SASR 248
[5] At page 306-307
[6] At page 307
[7] Taken on 27th September 2016
[8] [Cap 85]
[9] [2005] SBHC 91
[10] (Unrep. Criminal Case No. 16 of 1997)
[11] Referred to in page 2 of Tara’s judgment
[12] [1986] SBHC 16
[13] At page 3 of the judgment in word document form

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