R v Keia [2020] SBMC 36; Criminal Case 580 of 2020 (16 September 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 580 of 2020

BETWEEN: REGINA

V

AND: JEFFERY KEIA

Mr Ephraim Pitasua for Prosecutions

Mr George Taedi for defence

Date of trial: 2^nd of September 2020

Date of NCTA: 3^rd of September 2020

Date of further submissions: 11^th of September 2020

Date of Ruling: 16^th of September 2020

RULING ON NO CASE TO ANWSER

1. Mr Jeffery Kei, you were charged for the offence of offering liquor for sale without a license. This is an offence contrary to section 59 (2) of the Liquor Act. At the end of the Prosecution case, I was informed that a no case to answer will be advanced on your part. Leave was sought for the application to be done orally, however, I refused to grant leave and made further directions for parties to prepare written submissions which were to be submitted in court on the next day, being the 3^rd of September 2020.
2. On the third of September 2020, Prosecutions tendered their written submissions opposing the application. As for your legal representative, there was no sign of him in the courtroom as well as within the court premises. Since parties have not taken any issues with the directions set on the 2^nd of September 2020, it was safe to say that both your lawyer and the prosecutor have agreed to return to court on the 3^rd of September 2020. As far as I am concerned, there were no notices conveyed to the court to explain for your lawyer’s absence on the 3^rd of September 2020.
3. Lawyers need to be reminded that there are rules and procedures we are bound to follow. This kind of attitude will not be taken lightly and lawyers need to be reminded of the utmost duty they pay towards their clients and most importantly, that paid to the court.
4. Since there was no written submission filed by your lawyer, I was only able to rely on the submission tendered by prosecutions. From the line of questioning advanced by Mr Taedi, I have come to note how he wishes to bring out the issue, that until and unless there was some kind of transaction between you Mr Keia and a potential customer, then the requirements for the offence at hand would have been met.
5. For purposes of this ruling, I will outline the details of the charge against you as follows:
6. Charge:

Jeffery Keia

Of Maleu Village, Temotu Province

Is charged with the following offence:

Statement of offence

LIQUOR FOR SALE WITHOUT LICENSE: contrary to section 59 (2) (a) of the Liquor Act^[1].

Particulars of the offence

That Mr Jeffery Keia, at Honiara Central Main market, Honiara in the Guadalcanal Province on 8^th day of June 2020, did carry about for sale liquor without a license^[2].

Elements of the offence

7. Parties would agree, that the essential elements to the offence at hand, are as follows:
   • (a) The has to be a Defendant;
   • (b) There has to be a place in which the offence was alleged to have taken place at;
   • (c) There has to be a date;
   • (d) That the Defendant did:
     • (i) Carry about, offer or expose.
   • (e) Liquor;
   • (f) For sale; and
   • (g) Without license.
     

Issue

As per the documents pertaining to the pre-trial conference, I have taken note of two main issues that parties have identified in this regard. However, the issue that goes down to the root of this alleged offending is that regarding, whether or not the Defendant carried about liquor for sale with license.

Evidence and submissions by Prosecution and Defence

8. At the start of the Prosecution case, the record of interview conducted on you Mr Keia and two photographs were tendered, which were marked by the court. During the pre-trial conference hearing, I was told that prosecutions will be calling 2 witnesses, however, on the 2^nd of September 2020, prosecutions only called Police Constable John Still Molaki. I was not informed on whether the other witness would be giving evidence or not.
9. Obviously both parties are in dispute, hence it would be safe to say that Defence does not think there is sufficient evidence to support the allegation against you Mr Keia.

Evidence adduced by Prosecution

10. The evidence given by Police Constable John Still Molaki can be summarised as follows:

On the 8^th of June 2020, he was carrying out his duties as the officer in charge of the Central Market Police Station. It was when he was standing in front of the fish and chips lock up shops that he saw you, Mr Keia. According to PC Molaki, you are a well-known person at the Central Market area. He said that it was during the time he was standing in front of the fish and chips lock up shops, that he saw you walking past. His observation towards you was that you appeared drunk and was carrying a bag. Since you are well known for your involvement in activities such as consumption of liquor within the market area, as well as offering liquor for sale, he then followed you and apprehended you. Upon searching the bag you were carrying, he found bottles containing what he believed to be kwaso. According to PC Molaki, he has been working at the Central Market Police Post, long enough to know when someone is carrying about kwaso for sale, and when someone is consuming liquor bought somewhere else. The line of questioning advanced during the cross examination aimed to establish the very fact that there was never a transaction to show that you were offering liquor for sale.

Further to the evidence given under oath, two photographs were also tendered, which together, comprised PE-2. One of these photographs showed six small plastic bottles that were inside a tote bag, or something similar to a tote bag. The other photograph showed six small plastic bottles which were placed on a hard surface or something that looked similar to a concrete floor.

Law on no case to answer in the Magistrates Court

11. The relevant law in this regard, is section 197 of the Criminal Procedure Code. This section states, and I quote:

“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”^[3].

12. In his ruling on the case of R v Maenadi Watson, Smith Pitapio, Youngston Watson & Saro Norman^[4] Muria CJ, as he was then, stated the following to elaborate on the wordings of section 197:

The starting point on the consideration of a no case to answer submission is section 197 Criminal Procedure Code^[5].

That section is specifically worded to suit the circumstances of a criminal trial where there is no trial by jury. As such in Solomon Islands where a judge is both a judge of fact and law he is entitled to go beyond the mere consideration of evidence on the essential element of the offence as expressed in the English Practice Note [1962] 1 All ER 448 and referred to in Archbold Criminal Pleading Evidence and Practice, 38 Ed. para. 575 (a). A judge in a criminal trial in Solomon Islands is entitled to consider the sufficiency of the evidence at the close of the prosecution case in order to determine whether or not the accused has a case to answer^[6].

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 [the same requirement I might add under section 269(1) of the CPC]^[7].

13. While there are separate sections applicable in the High Court and the Magistrates Court, His Lordship, Palmer CJ, has highlighted in the case of Regina v Tara, how both sections carry the same essential requirements^[8]. In this regard, the essential requirement would mean whether or not there is insufficient or no evidence at all to satisfy the elements of the charge.
14. I concur with His Worship, Principal Magistrate Augustine Aulanga, when he highlighted the word sufficient, as the key word when delivering his ruling in the case of Regina v Luvena^[9]. According to the Online Cambridge Dictionary, sufficient means: “Enough for a particular purpose”^[10]. At paragraph 10 of his ruling in the case of Regina v Luvena, His Worship made reference to the Australian Morden Oxford Dictionary, where the word sufficient was defined as “enough”^[11].
15. Parties would agree that way before the cases I have identified above, the leading case authority that is binding upon this court, is that of Regina v Lutu. In the case of Lutu, His Lordship, Ward, CJ, as he was then, states and I quote:

“Clearly this is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidence are credible and accurate and which are not. These are all matters for the conclusion of the evidence as a whole and, where there is evidence that could result in a conviction by the court, then the accused must be put to his defence”^[12].

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

16. This was the view taken in the case of Regina v Luvena, where His Worship, Principal Magistrate Augustine Aulanga, stated at paragraph 14, that:

“To ensure consistency with the authority on no case to answer at the Magistrate court, I am bound to follow and apply the requirements set out in Lutu’s case that issues regarding inconsistencies, honesty and credibility of the witnesses are irrelevant to consider at this stage. They are matters that should be properly considered at the end of the trial as a whole. My duty is to simply rule on the sufficiency of the prosecution’s evidence when taken its case at its highest”^[14].

Analysis of evidence

17. In terms of the evidence alluded to by Prosecutions, the court must see that there is indeed sufficient evidence that is capable of supporting a conviction on the part of Mr Keia. Whilst working on my ruling, I came across some technical issues which I believe required parties to provide submissions on. These issues were in relation to the definition of liquor as stipulated under section 2 of the Liquor Act, and the requirement outlined under section 85 of the Liquor Act. Section 85 of the liquor Act states the following:

“In any proceedings under this Act, a certificate purporting to be signed by a registered pharmacist in the employment of the Government, stating the percentage of alcohol contained in any liquid submitted for his examination, shall be admissible in evidence, and in the absence of evidence to the contrary may be accepted by a court as proof of its contents”^[15].

18. As far as section 2 of the Liquor Act is concerned, liquor is defined as follows:

“liquor means any wine, spirits, beer, or any liquid containing alcohol ordinarily used or fit for use as a beverage, or any other liquid which the Minister may by notice declare to be liquor for the purposes of this Act, but does not include any alcohol or spirits the importation of which is restricted under section 34 of the Customs and Excise Act”^[16].

19. On the 11^th of September 2020, I heard submissions from Mr Pitasua and Mr Taedi in relation to the definition of liquor, and the requirement outlined under section 85 of the Liquor Act. Mr Pitasua raised the fact that never had this court raised the issue regarding the definition of liquor during the pre-trial stage. He went on further to quote cases heard in the High Court, and further directed this court’s attention to how judicial notice was given by the High Court to deem kwaso as liquor. He referred to the cases of Regina v Kasi [2011] SBHC, Kiap v Regina v Kiap [2011] SBHC, Regina v Kibo [2012] SBHC and Regina v Lotau [2009] SBHC. First and foremost, I must call out the fact that Mr Pitasua has misinterpreted the wordings used to define liquor. I am not of the view that kwaso would in any way be defined as a spirituous liquor. I acknowledge that it is only the Minister who may by notice declare any other liquid such as kwaso to be liquor, for purposes of this Act^[17]. So far I am not aware of any occasion in which the Minister referred to under section 2 of the Liquor Act, had declared kwaso as liquor via any gazetted notice.
20. I fail to see how and why Prosecutions, through Mr Pitasua, would confidently say that the High Court has taken judicial notice to categorise kwaso as liquor. It is a different situation all together when an Accused pleads guilty to an offence regarding kwaso, as compared to when a not guilty plea is entered. Clearly, Prosecutions is misleading this court when they submitted that the High Court has taken judicial notice that kwaso is a form of liquor or alcohol. With the greatest respect, I find the line of argument advanced by Prosecutions to be somewhat preposterous. The cases referred to, were in relation to the sentencing principles ought to be followed, and have nothing to do with the court taking judicial notice.
21. In relation to the certificate referred to under section 85 of the Liquor Act, Prosecutions did tender a document labelled as “Test Report No. CTR 117/20. While this document is provided for under section 85 of the Liquor Act, I would have accepted it prior to ending the Prosecution evidence in court. Clearly, section 85 had been in existence for quite a long time and I expect Prosecutions to have picked up that section at the start of their case.
22. With regards to the submissions made by Mr Taedi, I note how he strongly objects that kwaso does not fall under the definition of liquor, under section 2 of the Liquor He also emphasised on how Prosecutions have failed to provide the certificate provided for under section 85 of the Liquor Act. He submits that it is the duty of Prosecutions to provide such a certificate before bringing the charge against his client, Mr Keia to court. He believes that section 85 sets out what is required from Prosecutions under the Liquor Act. He further submits that without that certificate, the court will not be able to determine the contents of the bottles in the bag, which were believed to be kwaso. He raises the fact, that given Prosecutions failure to test the contents of the bottles, one might conclude that it is just water.
23. He strongly objects to Prosecutions tendering the document that I earlier commented on. He believes, that had Prosecutions done their research then, and have weighed their evidence, the matter should not have come this far. Since Prosecutions has already ended their evidence in court, they were not entitled to produce further evidence. While I may have received a copy of the test report, I will not be paying due consideration to it.
24. When I invited submissions on the issues pertaining to the definition of liquor and section 85 of the Liquor Act, I was simply seeking to give parties the opportunity to address what they should have earlier identified, rather than living all the research to be carried out by me.
25. With the evidence alluded to by Prosecutions, and the arguments advanced by parties, I note that whatever finding I reach, must only be limited to whether or not there is sufficient evidence that supports the conclusion of guilt, on the part of Mr Keia. While I understand that this is a strict liability offence, I also acknowledge that the ultimate duty is upon Prosecutions to satisfy beyond the requisite standard, the elements of the offence.

Conclusion

26. In conclusion, I am of the view that Prosecutions has not shown sufficient evidence that is capable of supporting a conclusion of guilt on the part of Mr Jeffery Keia. Clearly, there is insufficient evidence shown to determine that kwaso falls under the definition of liquor as provided under section 2 of the Liquor Act. As stated in the case of Regina v Lutu, “if at the close of the prosecution case I, as judge of fact, do not feel that there is sufficient evidence even at that stage on which I could convict, I should stop the case”^[18].
27. It is with these findings that I am inclined to accept the application for a no case to answer, sought on behalf of Mr Jeffery Keia and hereby order as follows:

ORDERS

(1) The Defendant, Mr Jeffery Keia is acquitted forthwith in relation to the count of sale of liquor without license.
(2) Mr Jeffery Keia, is to be released from custody forthwith.
(3) The items confiscated during Mr Jeffery Keia’s arrest, are now forfeited to the state, and are to be destroyed in a manner deemed appropriate by the relevant members of the Royal Solomon Islands Police.
(4) A 14 days appeal period applies to any party aggrieved by this ruling.
(5) Order accordingly.

Dated this 16^th day of September 2020.

________________

THE COURT

Emily Z Vagibule-Magistrate

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^[1] Charge filed on the 11^th of August 2020
^[2] Above n 1
^[3] Section 197 of the Criminal Procedure Code of the Solomon Islands
^[4] (Unrep. Criminal Case No. 16 of 1997)
^[5] Above n 4
^[6] Above n 4
^[7] Above n 4
^[8] [2005] SBHC 91
^[9] CMC-CRC NO: 173 of 2016
^[10] Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/sufficient, 14th of September 2020
^[11] Above n 9
^[12] 1985-1986 SILR 249
^[13] Above n 12
^[14] Above n 9
^[15] Section 85 of the Liquor Act, Cap 144
^[16] Section 2 of the Liquor Act, Cap 144
^[17] Above n 16
^[18]