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Walelabua v R [2022] SBHC 132; HCSI-CRC 251 of 2022 (15 December 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 251 of 2022

IAN PIAS WALELABUA

V

REGINA

Date of Hearing: 8 December 2022
Date of Judgment: 15 December 2022

Counsel:
Mr G Gray for the Appellant
Ms P Tabepuda and Mr N Tonowane for the Respondent

Lawry; PJ

APPEAL AGAINST CONVICTION

1. Ian Pias Walelabua, the Appellant was convicted in the Magistrates Court on 19^th May 2021 on one charge of burglary, contrary to Section 299 (b) (ii) of the Penal Code. He has appealed that conviction on the following grounds:
   1. “That the learned Deputy Chief Magistrate erred in convicting the appellant as the verdict cannot be supported having regard to the evidence adduced at trial.
   2. That the learned Deputy Chief Magistrate erred in law in admitting into evidence the opinion evidence of PW 2, Keith Morgan to draw the inference that the accused was the person who broke out of the Complainant’s property on the night of 28 August 2020 after having stolen the cash box therefrom.
   3. That the learned Deputy Chief Magistrate erred in law in failing to consider and properly assess the relevant factors before making the finding and to hold PW 7, Daniel Laka as a credible prosecution witness in order to rely on his evidence.
   4. That the learned Deputy Chief Magistrate erred in law in failing to properly apply the test set out in Section 12 of the Evidence Act 2009 when making the finding of the Appellant have possibly gained entry into the property by climbing the brick wall before making the finding and to hold PW 7, Daniel Laka as a credible prosecution witness in order to rely on his evidence.
   5. That the learned Deputy Chief Magistrate erred in law in failing to properly apply the test set out in Section 12 of the Evidence Act 2009 when making the finding of the Appellant have possibly gained entry into the property by climbing the brick wall where there were no nails and immediately within seconds, jumped to where ever he swept – jumped to where the switch of the alarm system was and to turned off the alarms system.”

Facts

2. PW2 and PW3 are a husband and wife who lives at Henderson opposite the Airport. Their house is secured with electronic security in the form of an alarm and camera surveillance. On 28 August 2020, PW2 and PW3 left their residence at about 10:00pm. PW2 worked at a casino. PW 3 collected him at around 3:30am and they arrived back at their premises about 4:00am. When they returned, they found there had been a burglary. They went to their laundry where they had a safe. The laundry window had been opened and the safe was missing.
3. The property is surrounded by three metre high walls with nails on the top except for length of about three meters. The only things apparently missing were the safe and the recorder for the security camera. The safe was approximately one metre high and half a metre square. The Defendant had previously worked for PW2. He had installed the security cameras and had installed the gate control system. He had also helped install the alarm system and which was on the walls around the property.
4. A ladder was found on the outside of the wall. The police attended the scene but were unable to obtain any forensic evidence to advance the case. There is an entrance to the property where PW 4 saw two men struggling with the safe out by the road.

Ground 2

5. It is convenient to first deal with ground 2 in the grounds of appeal. The Appellant points out that no eye witness has given evidence or seeing the Appellant going into the property at the relevant time. There is no evidence from anyone who saw the Appellant climb the wall or steal the cash box or wheel it through the premises, open the gate, take the safe outside the gate, close the gate nor leave with an accomplice.
6. As previously mentioned, PW 4 did see two men struggling with a heavy box. They were outside the gate on the walkway. She saw a car that was parked beside the entrance of the property. She did not see anyone in the car. There was no evidence to link that car with the Appellant.
7. The Appellant submitted that the presiding Magistrate has relied on opinion evidence given by PW2 and PW3. He points to Section 128 of the Evidence Act 2009 which says “a statement of opinion is not admissible in a proceeding except as provided by this Act.” Section 129 provides: “a witness may state an opinion in evidence in a proceeding, if that opinion is necessary to enable the witness to communicate, or the fact finder to understand what the witness saw, heard or otherwise perceived”.
8. The Appellant’s complaint is that PW2 had told the police that he suspected the defendant was responsible for the burglary. PW2’s evidence is recorded as: “Police arrived shortly after, I told them what I suspected, I told the police that that’s the only person who knew how to open the gate without the remote because he was the one who wired it.” Although it’s not raised by the Appellant, in evidence, PW 2 who was shown a picture of the alarm system in photo 6 it is recorded as saying: “Me and Pio installed the alarm system. The alarm system was never tampered with. I suspected he climbed up the wall and pressed the button to turn off the alarm system.”
9. In cross-examination, the Witness PW2 was asked questions which required an opinion to be expressed. For example, “to push the safe would create a lot of noise because the safe is concrete” or the question “others outside would hear the alarm”, and the third, “Pio would be stupid to climb because he knew that there was an alarm installed at the top of a wall”.
10. These are set out as evidence-in-chief, the fact that the witness suspected a person and communicated that to the police is not objectionable. What the magistrate was doing was identifying the different threads that PW2 pulled together to draw his conclusions. It would have been remarkable indeed if the police had not asked who he thought may be responsible. No other opinion in evidence has been identified in support of the ground of appeal. The evidence is not objectionable.
11. It was necessary for the Magistrate, as the finder of fact to understand the various links if the prosecution case was partly relying on circumstantial evidence. Ground 2 must be dismissed.

Ground 3

12. The first point raised by the Appellant is that the presiding magistrate has not recorded whether he was satisfied beyond reasonable doubt that the confession was a voluntary. The Appellant relies on section 168 of the Evidence Act. Section168(1) and (2) provide:
    • “(1) This section applies only to a criminal proceeding and only to evidence of a confession made by an accused –
    • (a) to or in the presence of an investigating official who was at the time performing functions in connection with the investigation of the commission or possible commission of an offence; or
    • (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of an accused should be brought or should be continued.
    • (2) evidence of the confession is not admissible unless the court is satisfied beyond reasonable doubt that the admission was a voluntary.”
13. Clearly, section 168 does not have any application in the present circumstances as PW7 to whom the alleged words were addressed, was not an investigating official nor in the presence of one who is performing his functions in connection with the investigation. Nor was PW7 a person who was capable of influencing the decision whether a prosecution should be brought or continued.
14. The presiding magistrate made an assessment of the credibility of PW7 in the knowledge that he had been in custody. In assessing the credibility of PW7, the learned magistrate was entitled to consider the evidence that he had found proved and that pointed to the identification of the Appellant, such as the Appellant’s knowledge of the alarm system, the security setup, operating the gate, the location of the safe, and the call he made to PW5 indicating he was outside the premises. The magistrate could then weigh the evidence of someone who would not otherwise have known the details of the work relationship, the safe and the identification of PW1.
15. In those circumstances, the presiding magistrate was entitled to make a finding of credibility of both PW7 and DW1. He had the opportunity of assessing PW7 when the allegations of DW1 were put to him. The fact that someone has a criminal record, including a record for dishonesty, does not preclude that person from being a witness nor from being found to be a credible witness.
16. Counsel has referred to Regina v Filibo [2009] SBHC 51, and in particular to the passage at paragraph[21]:
    • “the Court is of the view that the credibility of a witness depends on his knowledge of the facts, his disinterestedness, his integrity and veracity”.
17. The learned magistrate had the benefit of having the witnesses in front of him to assist in that assessment. In these circumstances this court is not persuaded that the presiding magistrate was not entitled to make such a finding. Ground 3 must be dismissed.

Grounds 1 and Ground 4

18. Ground 1 and ground 4 can conveniently be dealt with together. On the evidence, there was no one at the property apart from the burglars at the time of the burglary. The magistrate was entitled to conclude that the burglar must have climbed the wall where there was where there were no nails, and within seconds, turned off the alarm system. His words at paragraph 86 are not that the burglar possibly entered the property at that point as submitted by the Appellant. He has concluded that it was the only possible entry point.
19. That conclusion is not inconsistent with proof beyond reasonable doubt. What the prosecution was required to prove to the standard of proof beyond reasonable doubt are the elements of burglary. For the purposes of this appeal there is no issue that there was a burglary, so the sole issue was whether the prosecution had proved beyond reasonable doubt that the Appellant was the burglar, or if more than one, (as is likely) one of the persons who carried out the burglary. That is the effect of the onus of proof and the standard of proof in criminal proceedings as provided in section 12 of the Evidence Act.
20. When cases are largely dependent on circumstantial evidence that does not mean the evidence is second rate. The strength of circumstantial evidence is the combined effect of the pieces of evidence. In the present case there has clearly been a burglary. The burglar must have had knowledge not just of the operation of the gates without the remote but also the operation of the alarm system on the walls and the recorder system for the camera. The burglar must have known what they were after with regards the safe and the location of the safe. Those factors all meant that the burglar was someone familiar with all those factors. There was no one on the property at the time so the suggestion it could have been someone in the property it can be discounted. That means the burglar had to enter by way of the wall.
21. Once the magistrate accepted that it was the Appellant who had rung PW5 who was in a property close by and that the Appellant had asked PW5 to check on who was at the property then that phone call made it clear the Appellant was close by with another person and not at Kola Ridge which he had suggested to others. The suggestion by the Appellant that the wife of PW2 cannot be discounted as the burglar is not a proper suggestion. It was not an allegation put to her. It was not put to PW7. What was suggested to him was that the police treated him as a suspect and that he had checked on the property twice.
22. There is a no suggestion PW7 knew there was a burglary nor that he was part of it. The learned magistrate was then entitled to draw inferences from the proven facts. Counsel has correctly referred to Alagere v Regina [2015] SBCA 22. The Court is entitled to draw inferences from proved facts on evidence that is properly admitted. Counsel submitted that the learned magistrate has relied on inadmissible opinion evidence. That submission does not carry any weight.
23. This is not a case where the magistrate has said he accepts the opinion of PW2. What he has done is to take the individual facts identified by PW2 and which he found proved and weighed the effect of that evidence when that was put alongside the evidence of PW7. The Court was entitled to find that the case was proved beyond reasonable doubt. Right at the start of the judgment, at paragraph 2, the learned magistrate has put to the forefront the correct onus and standard of proof. Ground 1 and ground 4 are both dismissed.
24. One final matter, there has been no evidence of someone hearing the alarm sound. The Court heard that if activated the alarm can be switched off in a few seconds. That does not mean the alarm did not sound nor that the intruders did not enter the property. It simply means no evidence was called about that issue. The Respondent points out that it was night time and raining that night. The verdict was therefore one available to the magistrate. Indeed there was a very strong case against the Appellant. The appeal is dismissed.

By the Court
Hon. Justice Lawry
Puisne Judge