R v Garomo [2019] SBMC 22; Criminal Case 181 of 2018 (6 May 2019)

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

Criminal Case No. 181 of 2018

REGINA

-V-

CHARLES GAROMO

Dates of trial: April 23^rd, 2019 – April 24^th, 2019
Date of Judgment: May 6^th, 2019

Mr. Bradley. L. Dalipanda for the prosecution
Mr. Clifton.M. Ruele for the defendant

JUDGMENT AFTER TRIAL

Introduction:

1. The Defendant; Charles Garomo is charged for two counts of Domestic violence contrary to section 4 (1) and section 58 of the Family Protection Act 2014. For count 1, Crown conceded for an acquittal to be entered against the Defendant for reason that the complainant was not in court to give evidence to succour the allegation against Defendant. Therefore, my reasoning herein this judgment will only confine to count 2 and the orders for both counts will be revisited at the conclusion.
   
2. The particulars of the offence as reflected in the charge is that on the 22^nd of November 2016 at Gizo Police Station, the Defendant; Charles Garomo did commit domestic violence on his partner Mrs Lovelyn Tanito and his two years old daughter by doing conduct or series of conducts amounting to physical or psychological abuses, to wit; acted aggressively and slapped Lovelyn Tanito with his right hand open palm which landed on her right cheek.
   
3. The Defendant denied the charges upon arraigned on 5^th of April 2019, hence, a trial ensued. The Crown called the only witness; Police constable (PC) Leonard Rokoto referred to herein this judgement as (PW 1) and tendered a Police Safety Notice (PSN) dated 22^nd November 2016 by consent and marked (PE 1) to prove their case against the Defendant.
   

Crown case:

4. The crown case is that the incident took place on the 22^nd of November 2015. On that day the Defendant being a police officer at that time took the Police vehicle without permission and drove to district area, Gizo. Later the Police received a report from district area about a possible domestic violence matter. The crown says that upon receiving the report four (4) police officers attended to the report at district; PC Leonard Rokoto, PC Salau, PC Wilken Miriki and PC Hickly Rence. Upon arrival, they invited Ms. Lovelyn Tanito to police station. The crown says that when the police officers arrived at the Police station, the Defendant approached them and had an argument with his partner. PC John Salau took him away from his wife.
   
5. At that point in time, PC Salau tried to talk to him to calm down. The crown says that he was observed to be drunk and appeared aggressive. Mrs. Tanito (complaiant) was taken to the charge office and then to the CID office where PC Nelysah Natei conduct the interview. At that time PC Rokoto and PC Hickley Rence remained outside the interview room.
   
6. The crown say that not long after, the Defendant rushed inside the CID office and argued with Mrs. Tanito (Complainant) in the presence of PC Natei. Later, the Defendant with his open palm slapped the complainant’s right cheek. At that time, Mrs. Tanito (Complainant) was carrying their 2 years old daughter. As a result of the force from the slap, the complainant suddenly moved and got her daughter’s head hit against the edge of the interview table (desk). The 2 years old child was frightened, cried and held tightly to her mother (complainant).
   
7. The crown says that, PC Rokoto and PC Rence ran inside and got the Defendant out of the interview room. The Defendant was warned not to enter the interview room and a complaint was also made which resulted on the charges against him. Thereafter, a Police safety notice was also issued against the Defendant.
   

Defence case:

8. The Defence does not dispute the date of offending, all that had transpired before the alleged assault at the police station and his presence at the police station. His version of what transpired at the police station is the only difference. He says that he went inside the CID interview room to get her daughter after which he heard her crying non-stop inside the interview room. It was when he walked in towards the complainant and reached out both of his hands to get the baby that the complainant thought he would slap her so she ducked down and as a result got their 2 years old child to hit her head on the edge of the interview table.
   
9. This is not a case of who I should believe or which version I should accept. I remind myself that the defence bears no burden to prove his innocence. It is for the crown to prove all elements of the offence beyond reasonable doubt. Should there be a slightest doubt, small as it may, the Defendant must be given the benefit of the doubt and shall be acquitted.

Issues:

10. The principal issue that will determine the final result is; whether or not the Defendant; Mr. Charles Garomo committed “domestic violence” on Lovelyn Tanito by slapping her right cheek.

Definition of Domestic Violence

11. Section 4 (1) of the Family Protection Act^[1] states;-

4(1) “Domestic violence” is conduct committed by a person (the “offender”) against another person with whom the offender is in a domestic relationship, or the threat of such conduct, that constitute any of the following” –

(a) Physical abuse;
(b) Sexual abuse;
(c) Psychological abuse;
(d) Economic abuse.

(2) “Domestic violence may consist of a single act or a number of acts that form pattern of behavior, even though some or all of those act when viewed in isolation appear to be minor or trivial.”

Evidence concerning the slap on the complainant’s face

12. (PW 1) gave evidence that he was at the CID interview room entrance door when the Defendant rushed inside. He went after him to see the Defendant with his open palm slapped the complainant on her right cheek. He further said that due to the force from slap, the Defendant moved and as a result got their 2 years old daughter’s head hit the edge of the interview desk.
    
13. During cross-examination, (PW 1) maintained his version all throughout, his evidence was not contradicted nor challenged.
    
14. These evidences goes to prove that the Defendant did slap the complainant on her right cheek on the date of offending.
    
15. In fact, the crown did not adduce evidence to suggest the result of the slap on her cheek and whether she sustained injury or not. The complainant was not called as a witness. As apparent from the crown’s case, the complainant moved from her original sitting position from the force of slap done by the Defendant. It is impeccable to say that this is not some reasonable slap but one that bares full force and strength, as such, a bruise or swollen face would be a likely result.
    
16. I am cornered without any evidence to suggest the result of slap on her face, but this might put the court on a firm position to justify any assault when the Defence strongly contended that the Defendant merely reached out to get his child and that it was the complainant herself that moved away from her original sitting position after which she thought the Defendant would slap her.
    

Evidence concerning (PW 1) position and observation

17. It is undisputed that (PW 1) was standing at the door entrance when the Defendant went inside the interview room. He agreed to the defence proposition that his observation was done at the Defendant’s back.
    
18. When put to him that because he was standing at the back he would not have seen what unfolded, (PW 1) strongly disagrees and maintained his stance that he clearly saw what had happened and or that the Defendant slapped the complainant on her right cheek.
    
19. Although the evidence of (PW 1) is not smeared by inconsistencies or unsteadiness and was not impaired by any external influence such as drunkenness, his observation is as obvious, viewing from the Defendant’s back. The court is now placed on the brink as to whether or not to accept the sole evidence (PW 1) as sufficient to justify guilt of the Defendant or should the Court expect additional supporting evidences.
    
20. It is only safe to state that the best possible way to connect the Defendant to commission of the offence can only be reveal through hearing the evidence of PC Nelysah Natei who was the interviewing officer and apparently will be seated next to the complainant or even more helpful from the complainant herself. Crown opted not to call both interviewing officer; PC Nelysah Natei and the complainant (Mrs. Lovelyn Tanito).
    

Is it a mandatory requirement for the complainant to give evidence?

21. It is my respectful view, that the complainant must give evidence to succor the allegation against the Defendant. This is borne out of the core notion that the allegation is mounted out from the complaint made by the complainant, hence, she must confirm and justify such complaint during trial by giving evidence.
    
22. Although, I might agree that PC Rokoto was a police witness so to speak, putting aside his profession as a police and consistency of his evidence, he is a third person and his evidence would be best relevant as an independent witness to support the evidence of the complainant, but should not be a lonely one or run in isolation.
    

Evidence of assault on the Defendant by complainant at District area

23. It is undisputed that the Defendant was slapped 4 times by the complainant, this was when the Defendant went to District area with the police vehicle and before the police received the report. The rationality I can gather from the above is that, the Defendant when he had the full opportunity to react or retaliate for the slaps done on his body by the complainant, he maintained his composure and self-control, hence, I find it strange for him to react by slapping the complainant when he was in front of police officers and at the Police station when he was also a member of the Gizo Royal Solomon Islands Police Force. It is my view that had he intended to do so, he would have done that at District area, a place of isolation and conducive enough for such criminal activity to happen but he maintained himself even after 4 slaps landed on him.
    
24. What are the justifications for acting otherwise reacting aggressively at Gizo Police station as submitted by the crown is unknown. I do not wish to indulge further as it will only tolerate guesswork and speculation on the courts part.
    

(PE 1) – Police safety notice dated 22^nd of November 2016

25. The Police safety Notice dated 22^nd of November 2016, was issued to the Defendant after the allegation at the Gizo Police Station. It does not justify guilt of the Defendant. It is only used for the safety of the complainant and other affected persons of any possible threat to physical abuse, sexual abuse, psychological abuse and economic abuse. (PE 1) does not state the grounds for obtaining it but merely stating the conditions.
    

Demeanor and manner of answering by (PW 1)

26. (PW 1) obviously is a truthful and credible witness. However, the reliability and quality of his evidence regarding the slap is lessen on the basis of his position and view to observe the conduct. I do not exclusively satisfied with his evidence regarding the slap. The burden is beyond reasonable doubt and this court must be morally certain of the Defendant’s guilt. Hence, there should be other witnesses available such as PC Natei and the complainant, but again, crown opted not to call her and more importantly the complainant herself to confirm the complaint and allegation. Her absence definitely caused the case to nose-dive at the very beginning.
    

Evidence of (DW 1)

27. The Defendant’s evidence is straight forward. He was at the police station when the police officers brought in the complainant and their 2 years old daughter. He was a police officer at Gizo Police station, hence, while he walked past the interview room, he could see and hear his daughter crying. He then went inside the interview room, approached the complainant and reached out his hands to get the child. The complainant saw the Defendant reaching out his hands and thought he would slap her, so she quickly ducked or move herself from her original seating position which resulted to the daughter hitting her head on the interview desk. Thereafter, PC Rokoto and others stormed inside and got him out of the interview room.
    
28. It is impeccable to say the least that the evidence of (DW 1) when considered with the no medical report or absence of any evidence to suggest the result of alleged tough slap and the crown failure to call the complainant with PC Nelysah (interviewing officer), only points to bolster the Defence case or version of events.
    
29. I remind myself that it is for this Court to place careful consideration to the Crown’s case on whether or not they have discharged their duty to the required standard or threshold; Beyond Reasonable Doubt. Should the crown discharged its burden, then only this court can dive into consider the evidence of (DW 1) and whether or not it raises possibilities and casts doubt in the crown’s case. This is a selfish burden and or one that remains mostly with the crown all throughout any criminal proceedings.
    
30. With utmost respect, I am not satisfied that the crown has discharged its duty to the required standard “Proof beyond reasonable doubt”. Due to this finding, it is needless for this court to deliberate further on the consideration and weight of (DW 1) evidence as it will not change my finding.
    

HELD:

31. For count 1, due to the concession by the crown in their opening, to an acquittal against Defendant for failure of the complainant to give evidence to succor the allegation, I find that the charge or allegation against the Defendant has not made out sufficiently for him to make any defence at all at the initial stage, hence, I dismiss count 1 and acquit him forthwith of the charge.
    
32. I have carefully considered the evidence crown relies on pertaining to count 2 of Domestic violence, and I found that there is insufficient evidence to link the Defendant to the commission of the offence or slap on the complainant’s right cheek. Accordingly, I find him not guilty and acquit him forthwith of the charge of Domestic violence (Count 2)
    

Orders

1. For Count 1, I dismiss the charge and enter acquittal against the Defendant.
2. For Count 2, I find the Defendant not guilty of the Charge of Domestic violence.
3. Acquittal entered for both count 1 and 2.
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] 2014