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R v Mao [2023] SBHC 180; HCSI-CRC 387 of 2019 (10 August 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 387 of 2019

REX

V

FLOYD NGONGO MAO

Date of Hearing: 17, 18, 19, 20 and 21 July 2023
Date of Ruling: 10 August 2023

Counsel
Ms D Oligari for the Crown
Mr S Aupai for the Accused

Lawry; PJ

Ruling on the submission of section 269 (1) application

1. The Accused is charged with one count of having sexual intercourse with a child under the age of fifteen years, being an offence against section 139(1) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. At the conclusion of the prosecution case the Accused brought an application, in reliance on section 269(1) of the Criminal Procedure Code. The Court heard submissions from both parties then made a ruling, delivered ex tempore. The Court found there was no case to answer and discharged the Accused.
3. Since that time I have been advised that the Court Registry was unable to retain a copy of the audio recording of the ruling. I have been asked to set out my reasons for the ruling and now do so.
4. Section 269(1) of the Criminal Procedure Code provides:
   • “When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.”
5. The test to be applied when assessing the evidence at the conclusion of the prosecution case has been addressed in R v Tome [2004] SBCA 13, Regina V Somae [2005] SBCA 11 and then reviewed and confirmed in Regina v Manedetea [2017] SBCA 19.
6. In considering section 269(1), I put to one side issues of the truthfulness and reliability of the witnesses’ evidence. That assessment is not relevant at the stage of considering whether there is a case to answer. There is very clear evidence that the complainant was only nine years of age, clearly a child under the age of 15 years. There is compelling evidence that an intruder entered the house of the complainant, went into the room where she slept and forcibly had sexual intercourse with her. It was dark. She saw the man from behind as he fled. She called out. Her father also saw the man from behind as he fled from the house via an opening in the wall of the house. The sole issue is whether the offender was the accused. Put another way is there evidence which if accepted would entitle the Court to conclude beyond reasonable doubt that the offender was the Accused.
7. This issue has been complicated by the fact that the Accused was known to the Complainant. He had been previously seen walking around the side of the house and even lying in a hammock under the house. There is evidence that he had been staying in the house next door. There is evidence that a bag was located and trousers were located on the ground in the vicinity where the offender had fled. There is evidence that the bag belonged to the Accused and that the trousers had previously been worn by the Accused. An identifying feature that was described by the complainant is that the offender was tall, slim and had a braid at the front of his hair. Sometime later she was taken by the police and pointed out the Accused who was then arrested. It is noted that his hair was different from how it had been described by the Complainant. The difficulty is the Complainant identified the person who had been in the hammock and had walked past the house. She thought that was the person who had attacked her. She may well be right. The Court is required to look at the circumstances in which and the opportunity she had to observe her attacker. She did not see his face. She noted the braid and she saw the attacker from behind as he fled. This is not a case of assessing the accuracy of the identification of an offender. Rather, the identification relied on by the prosecution is one of circumstantial evidence.
8. I bear in mind of the words of the Court of Appeal in Alagere v Regina [2015] SBCA 22. The Court said:
   • “it is important, in our view, where it is necessary to draw inferences, that any inference made is made, firstly, on findings effect resulting from evidence properly admitted. After the fact finding exercise then, in addition, any inference made when it is adverse to an accused in a criminal trial must be the only available inference. That is to say there is no other inference available consistent with innocence. Anything less than this is no more than an educated guess”
9. Returning to the test to be applied, I take the prosecution evidence at its highest and by that I mean I accept the evidence that is most favourable to the prosecution. When considering that evidence I pose the question whether there is evidence capable of supporting a conclusion beyond reasonable doubts that the accused is guilty.
10. In the present case, there is the cogent evidence from the Complainant as to the offending, with limited assistance as to identification. There is the build of the Accused, his hairstyle, the fact that a bag and trousers were found in the vicinity where the offender had fled and most importantly, there is evidence that the accused had more than once been seen around the house, using a path at the side of the house as a shortcut. There is evidence that he had been in the hammock under the house and had stayed in the house next door. He certainly had the opportunity to commit the offence. A judge assessing all of that evidence would certainly have a strong suspicion. While the Accused had the opportunity, the description of the offender was very general. The braid is not a unique feature. The description of it did not match the photograph taken of the Accused on his arrest. The bag and the trousers found in the vicinity could well have been left as the offender left the house. It is not known how the bag or the trousers came to be in the position where they were located. Accepting the evidence lead by the prosecution as truthful, a judge would not be entitled to conclude beyond reasonable doubt that the accused was the offender. The Accused may well have been the offender but the conclusion that he was would be an educated guess. In these circumstances, the law requires that the accused must be given the benefit of the doubt. I find there is no case to answer. The Accused is discharged.

By the Court
Justice Howard Lawry
Puisne Judge