Regina v Ofonau [2017] SBMC 50; Criminal Case 379 of 2011 (16 October 2017)

IN THE CENTRAL DISTRICT MAGISTRATE’S COURT
OF SOLOMON ISLANDS
AT BUALA

CRIMINAL JURISDICTION

Criminal Case No. 379 of 2011

REGINA

-V-

TIMOTHY OFONAU

Prosecution: Mr. J. P. Teula of the PPO
Defence: Mr. L. Waroka of PSO
Plea date: October 12, 2017
Trial: October 12-13, 2017
Closing submissions: October 16, 2017
Judgment: October 16, 2017

JUDGMENT

1. The nature of this case is one that I should dispose it in this way.
   
2. The defendant, Timothy Ofonau, in the amended charged is indicted with one count of cruelty to children contrary to section 233(1) of the Penal Code.
   
3. The particulars of the charge are as follows:
   

“That Mr. Timothy Ofonau of Efata village, Gama District, Isabel Province at Efate in the Isabel Province on the 5^th of July 2010, had attained the age of fifteen years and had the care of a child namely Kokomana Maedia did willfully expose the said child in a manner likely to cause injury to his health.”

4. The defendant is the father of the child, Kokomana Maedia. He has been in a domestic relationship with the mother of the child, Hanau Rouronu, but their relationship was unstable and operated on an ‘on and off basis’ due to disagreement by their family members because they were first cousins.
   
5. On the 5^th of July 2010, Hanau took Kokomana and his younger sibling to the garden. Kokomana was 4 years old and it appears from the evidence that it was a rainy day and a river before the garden was flooding.
   
6. The defendant appeared in the garden and asked Hanau if they would go in the bush. She refused to follow the defendant and out of anger, he lifted Kokomana and said “because you less, me tekem pikinini ya go mekem hem hungere gogo hem die.” He took the child out from the garden despite he was crying for his mother.
   
7. Hanau followed him but could not able to reach the defendant with the child so she returned back to the garden.
   
8. The defendant left him alone exposed in the rain in an isolated place inside the bush.
   
9. Later on Hanau, heard him crying from a distance in the bush and so she followed the direction where the crying came from. She managed to find him crying and shivering inside the cold rain in the bush. She took him home, bathed and fed him.
   
10. The defendant made the following admissions in his record of interview tendered by consent (exhibit P1):
    

“Q 6: Police received a report that you burn down, Hanau Rouronu’s leaf hut and took away her son (Kokomana) under your charge and left him in the bush as you say you are going to kill him, what are you going to say?

Ans: During that day, it was Thursday 5^th July 2010, I had an argument with Hanau. I didn’t set fire to the house but I did took him (Kokomana) away in the bush and left him because I am very mad with Hanau.

Q 8: Why did you tell Hanau you are going to take Kokomana away and kill him?

Ans: Because Kokomana is my son, born to Hanau and I don’t feel happy with her

Q 9: Where did you go and leave Kokomana?

Ans: Faraway in the bush

Q 10: How far was that?

Ans: About 300 to 400 meters away.”

11. The defendant remained silent and called his own sister, Everlyn Mamamu^[1], to give sworn evidence in favour of him. She denied all the admissions made by the defendant in the record of interview and gave a totally opposite version of what being said by the defendant. She said that on that day being the 5^th of July 2010, it was a fine day. She recalled that the defendant went to find ropes to tie the leaves for the church building and returned to their village at Nomino with his son Kokomana. Kokomana was happy when he arrived and played with other small children inside that village. It was during the course of the day that Hanau’s sister came and took Kokomana to go back to Efata village.
    
12. We therefore have two different versions of the defence. One said that the child was taken and left in the bush while the other said that the defendant brought the child with him and left him with their family at Nomino village the material time. This leaves the Court as to who is telling the truth?
    
13. In cases where there are inconsistencies between the record of interview and the oral evidence in support of the defence, the Court will decide the case by applying what is normally referred to as ‘common sense and logical approach.’ An example of such cases is the case of R v Rere and Saeni^[2], the State v Peter (No 1)^[3] and State v Mangi (No 1)^[4]. Those cases involving contradictory evidences offered by the defendants in their oral evidence against their admissions in their respective record of interviews. The Court in those cases instructed that applying common sense and logical approach is an ideal way/approach to deal with such instances. Such approach will normally base on the consideration of the prosecution’s case against the defendant’s version of case and deciding which version is logical when applying common sense to it.
    
14. In the present case, there is no doubt that what the defendant had said in his record of interview by way of admission is totally different to his own witness. In my view, the version of the defendant will supersede his own witness since the defendant is the one who physically participated in the allegation other than his witness. His witness did not present when the alleged offending occurred and hence, her recollections or assertions about the allegation is not that reliable compared to the defendant himself. Therefore, in cases where the defendant made full admissions in the record of interview and agrees to tender them against him for the trial, the Court will believe those admissions as evidence reflecting his participation as opposed to the version of his witness.
    
15. In this case, that is the reasonable conclusion reached herein and I find the evidence given by his sister is utterly unreliable and clearly is at odd with the admissions made by the defendant.
    
16. I find the evidence of the prosecution is corroborated or further strengthen by the admissions of the defendant. It has a ring of truth regarding the allegation. Even if there were some contradictions or inconsistencies in the prosecution’s evidence, they are minimal to create any doubt or defect in the prosecution’s case when considered in whole. When applying common sense and logical approach to this case, I find there is absolutely nothing the defendant could deny about the allegation. He has virtually admitted in full to police that he had committed the offence in question. Those admissions upon agreement become evidence now in Court.
    
17. This case could have been resolved by a guilty plea, but he insisted in exercising his right of innocence until proven guilty and has decided to contest the prosecution’s evidence. Unfortunately, this perception somehow unworkable, hopeless and proved futile.
    
18. I find the prosecution has proven its case beyond reasonable doubt and therefore, the defendant, Timothy Ofonau, is guilty as charged.
    
19. Right of appeal applies.
    
20. Order accordingly.
    

.........................................................................................................
THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] DW1
^[2] CMC-CRC No. 258 of 2016
^[3] [2001] PGNC 9; N2296
^[4] [2005] PGNC 10; N2992