Regina v Keleni [2019] SBMC 1; Criminal Case 461 of 2013 (11 February 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF ON ISLANDS ATDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case: 461 of 2013

BETWEEN: REGINA

Applicant

AND: JOHNSON KELE KELENI

Accused
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Prosecution: Mr. Ismael. Kekou of Director of Public Prosecutions Office
Defence: Mr. Benham. Ifuto’o of Public Solicitors Office

Before : >Princirincipal Magistrate – Leonard B Chite

Date of Hearing: November 5^th - 9^{thDate of Judgment: February 11th, 2019}

Defendantnt’s Appearance: Present in Court
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JUDGMENT AFTER TRIAL

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Introduction:

1. The trial for the defendant, Johnson Keleni, commenced on 5^th of November 2018 until 9^th November, 2018, this was after he denied the charges of Criminal Trespass contrary to section 189 (2) of the Penal Code and Grievous Harm contrary to section 226 of the Penal Code.
   
2. The charges arise out of an attack on a person namely; Tuanakana Wale Zama who is the complainant in this matter. I find that on 24^th January 2013, there was a vicious and sustained attack on Tuanakana Wale Zama at Mr. Danny Saeve’s residence, Hilltop, Gizo, Western Province. During that attack, he suffered lacerations across the middle of his scalp and other parts of his body. He was rushed to the Gizo Hospital, where he was treated by Dr. Andrew Soma.
   
3. The Crown case is that the incident took place on 24^th of January 2013, where the defendant; Johnson Keleni of Maravari village, Vella La Vella Island, at Hilltop, Gizo, with his colleague police officer; Police constable John Salau, both being off-duty police officers went to the house of Mr. Danny Saeve, shouted abusive words and kicked opened the door. The Crown says that as soon as the door opened the Defendant proceeded towards Mr. Saeve and assaulted him with a police baton. The complainant (Tuanakana) saw this and tried to intervene to clarify himself to the Defendant. The Crown says that the Defendant then turned to him and applied the police baton on his body. Fortunately, he struggled and escaped through a little space in between timbers. Upon his escape, he jumped off from the veranda and suffered a hard blow to his mouth on a 44-gallon drum outside the house. He was unconscious, later when he regained consciousness he noticed few of his teeth were broken. Thereafter, PC Salau took the complainant back to the house. While they were standing outside the house with his hands locked behind his back by PC Salau, the Defendant in an angry manner uttered words, approached the complainant and smacked the police baton on the complainant’s head. Thus the complainant suffered injury to his head (scalp). The crown says that at that time Saeve already escaped.
   
4. Suddenly, a person called out the Defendant’s name from some distance, at this point of time the complainant forcefully removed PC Salau’s hands and escaped. He went to his relative’s home where he was assisted to Gizo Hospital the same night and got admitted there.
   
5. The Defendant was arrested, charged and brought to Court. He denied this allegation. Hence, the Prosecution called Four (4) witnesses to prove their case against the defendant. The witnesses were Police sergeant Alick Alasena (PW 1), George Sina (PW2), Complainant’s cousin brother, Mr. Danny Saeve (PW3) and the Complainant, Mr. Tuanakana Wale Zama (PW4).
   
6. The Defendant does not dispute that on the 24^th January 2013, around the time of the incident, he and PC Salau went up to top hill and or the place of incident. He further agreed that both went to Mr. Saeve’s house. The purpose of going there was to conduct an operation to track down a well-known wanted criminal; “Harold Moses”.
   
7. It is undisputed that the injuries to the complainant’s face, mouth, few fallen teeth and his back were by the complainant himself and does not involve the Defendant.
   

Issue:

8. The three-paramount issues that will determine the ultimate result are; whether or not the Defendant was the one who inflict the injury on the complainant’s head (Scalp)
   
9. Whether the Defendant used a police baton to inflict the injury and If the answer is on the affirmative, whether the injury sustained on the head (Scalp) is one that falls within the ambit of “grievous harm” as defined under section 4, of the Penal Code?
   

The Law on Circumstantial Evidence:

10. The law on circumstantial evidence has been well enunciated by law writers around the world and several case precedents in this jurisdiction. Circumstantial evidence is evidence from which the desired conclusion may be inferred or drawn by a tribunal of fact that is to conclude that there are no other possible hypothesis available that would affect the inference.
    
11. In Archbold, 42^nd Edition, Para 9-10 it says:

“...and where such testimony is not available, the jury are permitted to infer from the facts proved other facts necessary to complete the relevance of guilt, or establish innocent. It must always be narrowly examined. If only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference”.

12. In the case of R v Duddley Pongi,^[1] Muria CJ (as he then was) stated at page 5:

“The Prosecution Case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case as presented against the accused. It is the duty of the Court in such as case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw an inference of guilty from the totality of the facts which are proved beyond reasonable doubt.

13. In the case of Regina v Tome^[2], the Judge described Circumstantial Evidence and said:

“Circumstantial Evidence is not a different species of evidence. Circumstantial Evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved.”(Shephered v The Queen (990) 170 CRC 573 per Dawson J at 579)’.

14. Typically, the burden of proof in this Case is born by the Crown that is to prove their case beyond reasonable doubt. In doing so, the Crown adduce evidence to support the charges by calling 4 witnesses and tendered 3 exhibits. The first exhibit marked as “PE 1” is the copy of Defendant’s Record of Interview. The second exhibit marked as “PE 2” is the copy of Medical Report of the Complainant prepared by Dr. Andrew Soma of Gizo Hospital and the third exhibit marked as “PE 3” is the copy of Dental Report of the Complainant prepared by Dr. Dickson Boara. All these prosecution’s exhibits are tendered to Court by consents.
    
15. It is irrefutable that in any criminal case the burden of proof is with the prosecution to prove all elements of the offence “beyond reasonable doubt” and should there be slight doubt, the defendant must be given the benefit of the doubt. The defendant need not prove anything, in particular, he is never required to prove his innocence.
    

Police operation on 24^th January 2013

16. I see it appropriate to consider the issue of; whether or not there was a police operation on January 24^th, 2013, as the starting point. The Crown relies on “PW 1” and “PW 2” to prove their case that there wasn’t any police operation on the night of alleged incident or on January 24^th, 2013. The evidence of Sergeant Alasena “PW1” and Sergeant Sina “PW 2” both averred similar accounts that they were not aware of any police operation. They said that the purpose to transport the Defendant and PC Salau to hilltop was simply to drop them off at their respective residences.
    
17. When cross-examined, Sergeant Sina agrees with defence that the Defendant was the crime manager during the time of the incident and have power to carry out investigations without any authority but disagrees that any police operation should be held a secret. He said that all police operations must be on the notice board, nothing in relation to this case.
    
18. “PW 1” firmly denies defence proposition that the purpose for going to hilltop on the night of incident was to follow up on suspects for house break-in cases. He maintains that he drove them to hilltop to drop them off at their respective residences and nothing to do with any operation.
    
19. As apparent, evidences by “PW 1” and PW 2 were not challenged and uncontradicted all throughout. I accept them in their entirety. These evidences point to the fact that there was no police operation on the night of January 24^th, 2013.
    

Evidence concerning banging noises and unlawful entry

20. “PW3” and “PW 4” both gave evidences that the Defendant shouted Danny’s name in an unfriendly manner when he was walking towards the direction of Danny’s house and not long after he slummed opened the door and entered without any permission or consent from either of them. Both said that when the Defendant entered, he approached “PW 3” and applied a police baton on his body and when “PW4” tried to intervene to clarify himself to the Defendant, he then turned to “PW 4” and beat him with the police baton while PC Salau stood by the door blocking the way out.
    
21. Their evidences by “PW3” and “PW4” in terms of the Defendant’s behavior, slamming of the door and the altercation in the house linked well with “PW 1” account. “PW1” gave evidence that the Defendant shouted Danny’s name when he walked down the valley towards his house, he also uttered words to the effect “Danny you come out, you no fright osem rat”! He further gave evidence that not long after he heard banging noises coming from the valley, the direction where the Defendant and PC Salau went.
    
22. During cross-examination, when put to “PW 3” that the Defendant did not slam open the door but only knocked on the door and it opened, “PW 3” totally denies the proposition and stated that the Defendant shouted and banged opened the door.
    
23. “PW 3” also denies the proposition that the Defendant did not even enter the house. He maintains that the Defendant entered the house and thereby assaulted himself and “PW 4” with use of police baton.
    
24. These evidences support the Crown’s case that there was slamming of the door and unlawful entry which led to an altercation between the Defendant and “PW3” and “PW4”.
    

Evidence concerning the use of police baton

25. Both “PW 3” and “PW 4” gave evidences that they saw the Defendant entered the house, approached “PW3” and beat him with a police baton. They said that the lighting was good as two candles lighted the room.
    
26. During cross-examination, it was put to “PW3” that the Defendant used the police baton to defend himself because few men jumped on him with hoes outside the house, this proposition was strongly denied by “PW3”. He maintained that the Defendant entered with the police baton and applied it on him.
    
27. “PW4” gave evidence that when the Defendant beat “PW3” with the police baton, he tried to clarify himself to the Defendant, and instead the Defendant turned to him and assaulted him with the police baton. The first whip hit him but he managed to miss the other attempt.
    
28. “PW1” who was the driver to the Police vehicle that transported the Defendant and PC Salau back to their respective residences did not aver any evidence to suggest the Defendant or PC Salau have in their possession a police baton on the night of the offending. During examination in chief, he simply stated that he did not see the Defendant carrying anything. “PW2” who saw the Defendant at the Police station did not give any evidence to suggest that the Defendant has in his possession a police baton on the date of offending.
    
29. In fact, the police baton was not provided as exhibit in Court to link the Defendant to the weapon or for identification purposes. This might also allow opportunity for the Doctor to explain whether such weapon might possibly inflict such an injury as sustained by the Complainant. The Crown opted not to call the Doctor.
    
30. PC Salau as the third person during the night of offending was not called as a witness to explain the existence of police baton. It is irrefutable that a police baton is apparently quite lengthy that it cannot easily be hidden, so where did the police baton come from is a question remains unexposed.
    

Evidence from Complainant “PW 4”

31. PW 4 is the complainant, he gave evidence that he was at his cousin Danny Saeve’s (PW 3) house on the date of incident, 24^th January 2013. They were sitting inside the house when they heard shouting coming from the Defendant’s house calling out Danny’s name. Not long after stones landed on the roof and later the door was slammed opened. The Defendant then entered and Mr. Saeve talked to him. Without any response, he approached PW 3 and whipped him with a police baton, they then entered into some commotion.
    
32. He saw this and tried to intervene to clarify himself to the Defendant, and instead, the Defendant then turned to him and applied the police baton on his body. Fortunately, ducked down and misses the second attempt, at that same point the candle lights went out. He then struggled and escaped through a little space between timbers. Upon his escape, he jumped off from the veranda and suffered a hard blow to his mouth on a 44-gallon drum outside the house. He was unconscious, later when he regained consciousness he noticed few of his teeth were broken. Thereafter, PC Salau took him back to the house. While they were standing outside the house with his hands locked behind his back by PC Salau, the Defendant in an angry manner uttered words, approached him and smacked the police baton on top of the his head and thus he suffered injury to his head (Scalp).
    
33. When put to him that it was dark and any person apart from the Defendant could have inflicted the injury on his head he strongly disagrees and stated that there was no one with such a threat that night apart from PC Salau who was behind him and the Defendant who was present at the night of incident. Did not see the Defendant but only hear him. It was total darkness.
    
34. The complainant’s evidence is one of circumstantial evidence, he did not see the Defendant but only heard his voice. Although his evidence was not impaired by any external influence such as drunkenness nor affected by any inconsistencies, this Court could only conclude that the link to connect the Defendant to commission of the offence can only be revealed through hearing the evidence of PC Salau.
    

Medical Report by Dr. Andrew Soma

35. The medical report dated 30^th January 2013 “PE 2”, was tendered in court by consent of both parties. The medical report stated; Paragraph 2...” He received a few hit on his head thus acquired a few bleeding lacerations so was rushed into accidents and emergency department”^[3]and Paragraph 6... “Large Laceration across the middle of his scalp 8 cm long and 2 cm deep, actively bleeding”^[4].
    
36. Apparently, Doctor Soma was not called as a witness to confirm whether or not the injury inflicted on the complainant’s head (Scalp) was from a police baton or hard object. Obviously, this report itself cannot assist to answer the above issue raised. Dr. Soma should give some explanation to narrow the possibilities available and that is to conclude that the only possibility left is that the wound was from a police baton or hard object similar to police baton. This might close other reasonable hypothesis when “PW 4” gave evidence that there’s debris or overlap timbers around the house and given the fact that Defence strongly contended that the wound might be a likely result of Defendant hitting his head against overlap bearers and noggings.
    
37. Again, PC salau was the only third person present during the night of incident but the Crown did not call him as witness, his evidence might be a strong link to close all other possibility and that he will be the one who saw the actual action.
    

Conclusion

38. I have considered thoroughly the evidences the Crown relies on pertaining to the charge Criminal Trespass, and I found that there was no police operation on the night of the offending and that there are overwhelming evidences that links well to prove the Defendant entered “PW 3” – Mr. Danny Saeve’s home on the night of the incident without lawful excuse or any authorization.
    
39. I have also considered thoroughly the circumstantial evidence the Crown rely on pertaining to the charge of Grievous Harm, and I found there is insufficient evidence to link the Defendant to the commission of the offence or causing Grievous Harm to the Complainant. Being within the vicinity of the crime scene is not enough. There must be some evidences that links and connects to the criminal act as alleged, and that evidence must be proved beyond reasonable doubt.
    
40. Having considered all the evidences in this case, in relation to the charge of Criminal Trespass, I find that the Crown has proven its case beyond reasonable, hence, I find him guilty and accordingly convict him of the charge.
    
41. In relation to the charge of Grievous Harm, I do not find that there is any proof of fact beyond reasonable doubt that lead reasonably to one and the only conclusion, that the Defendant did fully responsible for committing the offence as charged. I find the Defendant not guilty, hence, I accordingly acquit him forthwith of the charge.
    

Orders

1. Find the Defendant guilty of the Charge of Criminal Trespass.
2. Find the Defendant not guilty of the Charge of Grievous Harm.
3. Convict Defendant on charge of Criminal Trespass and Acquitted of Grievous Harm charge.
4. Right of Appeal applies within 14 days of this judgment.
   

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate

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^[1] (Unrep. Criminal Case No. 40 of 1999)
^[2] [2004] SBHC 115; HC-CRC 259 of 2003 (2 April 2008)
^[3] Dr. Andrew Soma’s medical report of the Complainant; Tuanakana Wale Zama, dated 30^th January 2013, Paragraph 2
^[4] Dr. Andrew Soma’s medical report of the Complainant; Tuanakana Wale Zama, dated 30^th January 2013, Paragraph 6.