It is usually said demeanour is a matter for tfor the trial court and it
is also said that assessment of fact
is best left to the trial court -
see Richard Gerea and Others v R Cr App. No. 1 of 1994 and
Caldeira v Gray [1936] 1 All ER 540. That does not mean that when
the conclusion of facts reached by the trial court is so unsatisfactory,
appellate court should not intervene. It means that the appellant, if he
is to succeed in challenging the assessment
of facts made by the trial
court, must show that the evidence agitates against the assessment of
facts. In my
view appellant can do that in at least 2 situations. 1. He
may show that the testimonies and other evidence for the prosecution
are
so riddled with contradictions or have contradictions on important
material aspects that it is unsafe for
the court to accept them. 2. He
may show that the trial court did not take into account important
material evidence
whether in the prosecution's or the defence's case,
that could have caused the trial court to arrive at different assessment
of fact.
The judgment of His Worship the Magistrate wry
detailed about the facts. On page 5 he pointed out most of the
contrcontradictions in the testimonies of prosecution witnesses. It seems to
me that contradiction in 3 and 4 between the
story of the complainant,
Patrick Sale PW1, that he and Ringo Tadauru PW2, removed the gun
completely from the
defendant, and the story of Ringo that they did not
remove gun completely, is contradiction on a crucial fact. There is
no
good reason to prefer to resolve the contradiction in favour of the
prosecution's case. The magistrate did
not state why he resolved it in
favour of the prosecution's case. When that is taken together with the
story
of Emily Ferania PW3, that she did not see a struggle, but later
heard the complainant shout, "thank you for pointing
gun at me", and
with the fact that she answered contradicting in cross-examination that
she had forgotten
to talk about the struggle, the prosecution's case
about the struggle becomes very weak, too weak for the test of, beyond
reasonable doubt required in criminal case - see Peter Ipao v. R
Cr. App. [1982] and the English cases; Woolmington v DPP 25 Cr
App 72. and Johnson v. R (1961) 46 Cr. App. R. 55.
Was DefCase Taken into Account?
Apart from the contradictions, the magistroncluded that the
appellant asked Mr. and Mrs. Malefo to hide the
gun because of the
knowledge of guilt that appellant had pointed the gun threateningly at
Patrick and not for
the fear that Patrick might lay hand on the gun. I
wonder whether the magistrate took into account the story of the
appellant that he had taken the gun in a bag to go off with, but trick
tried to remove it from the appellant so
the appellant returned the gun
into the house. That could be consistent with the action of the
appellant to keep
the gun away from Patrick. Further I wonder whether
the magistrate considered the admitted guilt that appellant did not
have
licence for the gun and the probability that appellant might have feared
that the police might go to investigate
any report made following the
incident of that early morning and might inquire about licence if the
police sees
the gun.
Improbabilities
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Another important consideration is that improbability looms large in the
prosecution's case. Is it normal for
someone threatened to be shot with
a gun to give back the gun during the same incident to the assailant
after
the gun had been forcibly removed, or even for the person to
linger around knowing that the assailant still has got the
gun?
Appeal Allowed
<
In my view, even without the additional evidence adducedduced, the evidence
before the trial magistrate could
not pass the test of beyond reasonable
doubt. On the record alone I allow the appeal, quash the conviction of
common assault and set aside the sentence imposed.
Additional Ece
The additional evi adduced comprised the test testimonies of Rings
Tadauru PW2, and Family Ferania PW3. They retracted
their earlier
testimonies on the material fact that the appellant pointed a gun at
Patrick Sale. They said their
boss, one Daisol, offered them money to
tell the story to the police. That, in my view, completely destroyed the
prosecution's case. The appeal would be allowed even on that basis.
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There has no appeal on
the count about unlawful possession of firearm. This judgment does does not
affect conviction
and sentence on that count.
Delivered this Monday 28th
day of Sept, 1998
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Sam Lungole-Awich
JUDGE
