Regina v Tuga [2018] SBMC 8; Criminal Case 246 of 2016 (20 April 2018)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 246 of 2016

REGINA

V

SILVESTER TUTU TUGA AND JOSEPH FAEMANE

Closing submissions: April 9, 2018
Judgment: April 20, 2018

Mr. Luke Sandy for Prosecution
Mr. Lazarus Waroka for Silvester Tutu Tuga
Ms. Jenny Namo for Joseph Faemane

JUDGMENT

1. About 1:00am or shortly after on 16 April 2016, the victim, Tony Toka, was assaulted by a group of men at a slightly dark area not well-lit by any fluorescent or street light along that side of the road of the east-bound lane main road at Ranadi in Honiara.
   
2. More than 2 persons were said to have involved in assaulting the victim. Amongst them were Silvester Tutu Tuga and Joseph Faemane (‘defendants’). There were many people rushed to the scene during the fighting. It is unclear whether they all assisted the two defendants or to stop the commotion or they just wanting to see what would occur during the fight. This makes it very difficult to know with precision how many people were involved in assaulting or attacking the victim.
   
3. The photographs of the victim show he suffered injuries to his lips; bruises to his cheek and has a swollen face. His lips were lacerated and stitched. The medical report discloses that he was hospitalised at the National Referral Hospital for 16 days due to severe injuries to his head/brain, diffuse axonal and cognitive function disorder, all emanated from the assault. This rendered him mentally and physically incapacitated. At this stage, his mental condition is still recovering and yet to get back to his pre-assault state.
   
4. Police carried out the investigation and the two defendants were arrested and charged for a count of grievous harm contrary to section 226 of the Penal Code either a principal offenders or alternatively, as aiders and abettors under section 21(c) of the Penal Code or further, they carried out the offence under joint enterprise under section 22 of the Penal Code.
   
5. The prosecution’s evidence is unclear about which of the two defendants or other person(s) took part in the fight is the main principal offender to support the theory of aiding and abetting. This state of evidence also fails to establish any iota of evidence whether prior to the offending the defendants have formed a common intention with each other to assault the victim and that grievous harm is the probable consequence of that unlawful purpose.
   
6. Given the lack of evidence to establish joint enterprise, it is needless for me to make a finding of this, except for aiding and abetting.
   
7. Amidst this uncertainty, one thing stands out and that is, Tuga and Faemane both admitted that they punched the victim, however only once. For Tuga, he admitted he punched the victim on his upper lip. For Faemane, despite his admission, it is not clear in the evidence where on the victim’s body he landed his hand.
   
8. Against this background and the factual circumstance of this case, the following are the pertinent questions for me to decide whether or not the prosecution’s case stands or falls taking into account the standard and burden of proof required in all criminal trials:
   
   • (a) Whether or not these two defendants aided and abetted the commission of the offence;
   • (b) Whether or not the two defendants punched the victim only once.
   • (c) If the answer is yes then whether this single punch amounts to grievous harm.
   • (d) If the answer is in the negative, then whether the punches/actions amount to grievous harm.
     

Unfavourable witness

9. Before answering these questions, during the course of the trial, two witnesses namely, Philip Iro and David Eke were declared unfavourable pursuant to section 162 of the Evidence Act^[1]. For Iro, his evidence in court was given in an obvious manner to deliberately withhold what he saw Tuga did to the victim. He however said that he pulled Tuga away from the scene of the fight but he did not want to explain why he pulled Tuga away or gave any detail explanation about what he saw Tuga out rightly did to the victim in his presence.
   
10. It however transpires that when he was cross examined by the prosecution, he then admitted the contents of the following evidence given to police:
    

“When I arrived at where that person was lying, I clearly saw that Silvester Tire Tutu (Tuga) still stepped at the person face he did that for several times. I am the one who pulled Tuga back from doing that. After I send him away, later he came back again with a kitchen knife and said now I will ended his life with this knife. When I heard that, I quickly grabbed him and led him back to Oba area. Tuga and the other two were drunk at that time.”^[2]

11. In his response, he agrees that this was the statement he gave to police on 3 May 2016, 17 days after the incident. He then adopts its contents.
    
12. He however explained when asked by the defence in cross examination that he was drunk and hangover when interviewed by police since he had drank more than 1 carton of beer before the interview. That was why he gave those detail evidence against Tuga.
    
13. In relation to his claimed hangover and drunk when interviewed by police, in my view this is an utter invention. If he was still drunk or perhaps hanged-over, his appearance to police would be very obvious. No sane police officer would interview any potential witness to a serious crime in such conditions as claimed by Peter Iro. I find his explanation is ridiculous and absurd that he gave detail evidence to police when he was drunk but somehow minimised it again when he was sober in court.
    
14. Having admitted and accepted that he had made a prior inconsistent statement to police, I therefore put weight on his explanations in court under section 164 of the Evidence Act about his statement given to police. His evidence given in court about his observation of the fight should not be believed but what he said to police should be the preferred version.
    
15. The reasons for accepting that are these; his statement is contemporaneous as the date when he gave his statement to police is very close to when the incident occurred. Also, his recollection of the event when interviewed by police is still fresher in his memory compared to during the trial. Further, when he was interviewed by police, it appears that he has nothing to withhold in relation to his observations of the actions done by Tuga during the attack on the victim.
    
16. For David Eke, after he was declared unfavourable, the prosecution decided not to cross examine him with his prior inconsistent statement. I find this omission unfortunate and thus, there is no explanation of any prior inconsistent statement he made to police.
    
17. I reject the entirety of his evidence forthwith.
    

Is there any evidence of aiding and abetting?

18. Hellen Betha is the first prosecution’s witness and is the girlfriend of the victim. In the early hours of the night of 16 April 2016, she accompanied the victim towards the OBA store at Ranadi. This is moments before the victim was assaulted. She stood near the OBA shop while the victim went to buy smoke at a nearby market stall. Whilst she was waiting, she heard one of the twins shouted “kilim hem” and instantly, the victim was chased by three persons to the other side of the road. She could not able to know which the twins said the words but it appears very clear during cross examination that she knew the involvements of the twins after she had conversations with other persons who were present at the scene days after the incident.
    
19. She alerted Martha and they ran the direction where the victim was chased. She arrived and saw the victim was already lying on the ground.
    
20. She saw they kicked his head and one of them hit the victim’s head with a stone. One of them cut his face and mouth with what she described as a ‘luncheon tin’ and saw blood came out from his face and lips.
    
21. There were many people there standing at the scene, making it difficult for her to identify and recognise who did most of the assault on the victim and likewise, or those who supported or aided that person during the assault. She mentioned the involvement of ‘twins’ but she didn’t know their names and hardly gave any description of the twins during the trial.
    
22. Given her inability to offer any specific evidence on the identity of the offenders and/or any explanations on their roles and/or which of them is the principal offender and likewise, in my view, her evidence is not helpful and unsatisfactory. It cannot establish whether Tuga was aiding Faemane or vice versa, or aiding any other persons apart from them during the fight.
    
23. The evidence of Patrick Iro did not show any action of aiding or abetting but rather identified Tuga as a principal offender.
    
24. The evidence offered by Martha Meolo^[3] established that Tuga and Sepo punched and kicked the victim. Sepo then took out what she described as a ‘tin corned beef’ from the victim’s pocket and hit it on the victim’s head. Tuga then picked up a stone and it was her husband, Patrick Iro, who blocked him from using it against the victim.
    
25. It then became obvious during the course of cross examination that at the time the victim was assaulted, she didn’t know the names of the defendants. It was after the assault that she learnt or knew of the name ‘Sepo’ and ‘Tuga’ from other people. Examples of her evidence to confirm this finding can be seen from the following series of cross examination questions from counsel, Waroka:
    

Q: I put to you that when you saw Tuga and Sepo kicked Tony, you yet to know their names.

A: Yes

Q: Put that you didn’t know the names of those who fight.

A: Yes

[..........]

Q: You didn’t know who is Sepo and Tuga during the fight?

A: Yes

[...........]

Q: Your husband was that one who told you that Tuga and Sepo were the ones involved in the fight?

A: Yes

Q: He told you of that after the fight?

A: Yes”

26. These lines of cross examination raise doubt about her identification of the two defendants at the time of the incident. Although she saw the victim was assaulted by at least two persons, she could not able to tell what each defendant was doing because she had no knowledge of their names.
    
27. Therefore, it is difficult to know with certainty what Sepo or Tuga did when the victim was assaulted. The identification of these defendants is a platform necessary to establish and nominate who is assisting who in the commission of the offence. Unless she knows their names, aiding and abetting will be hard to establish and hence, this is the conclusion reached herein.
    

Whether or not the two defendants punched the victim only once

28. The two defendants in their respective record of interview tendered by consent^[4] respectively admitted that they punched the victim only once. That becomes an agreed evidence now before the court.
    
29. Hellen and Marthas’ evidences did not identify the defendants at the crime scene for reasons that they didn’t know their names except by describing that the ‘twins’ involved in attacking the victim. Because of this, their observations have fallen short of describing with certainty what each defendant did to the victim the material time.
    
30. There is not any photo board taken so that they would identify who they were observing during the fight.
    
31. However, they collectively described that they saw the attackers kicked the victim when he was on the ground. This evidence is consistent with what Philip had observed.
    

Is the conduct of each defendant amounts to Grievous Ham?

32. The evidence of Iro is clear that he saw Tuga stepped on the head of the victim several times and it was him who restrained or pulled Tuga out from further attacking the victim. It is an undisputed fact that Iro was well acquainted or knew Tuga very well before the incident.
    
33. I find Tuga is not a credible witness. His explanation that he only hit the victim once is unsupported and contrary to the evidence of Iro and the descriptions of the observations made by Martha and Hellen.
    
34. I accept that he repeatedly stepped on the head of the victim whilst the victim was already supinely lying on the ground.
    
35. A person in his stature when aggressively stepping on the victim’s head (which is a vulnerable part of the human’s body) is a life threatening act. That manner of assault is anticipated to render the victim to suffer severe head/brain injury.
    
36. The medical report clearly stated that the victim suffered severe injury to his head/brain and mentally and physically incapacitated by that injury. At this stage, his mental condition is still recovering and yet to get back to his pre-assault state.^[5]
    
37. That form of injury amounts to grievous harm under section 4^[6] of the Penal Code.
    
38. As the evidence clearly established, it was Tuga who stepped on his head several times. The head/brain injuries are consequential of his cations. Therefore, he is the one responsible for this.
    
39. I therefore convict him as charged.
    
40. For Faemane, the evidence adduced has fall short to impute him to the grievous harm charge. This is due to the uncertainty of the witnesses’ evidence regarding his identity.
    
41. However, he admitted that he punched the victim only once. There is no evidence to show the magnitude or strength of that punch and where on the victim body his hand had landed.
    
42. Given the insufficiency of the evidence to impute him this, the charge of grievous harm cannot be sustained or proved.
    
43. In light of his admission, I invoke section 159 (2) of the Criminal Procedure Code:
    

“159 (1).....

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”

44. The charge that fits well his single punch on an unknown part of his body is common assault contrary to section 244 of the Penal Code.
    
45. I therefore convict him of common assault, contrary to section 244 of the Penal Code.
    
46. 14 days right of appeal applies to any aggrieved party.
    

------------------------------------------------------------------------------------
THE COURT
Augustine Aulanga – Principal Magistrate

---

^[1] 2009
^[2] Tendered and exhibited P7
^[3] PW4
^[4] P2 and P3
^[5] P9
^[6] "grievous harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;