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Taisia v R [2022] SBHC 109; HCSI-CRC 432 of 2020 (11 November 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 432 of 2020

VAHI OXLEY TAISIA

V

REX

Date of Hearing: 3 November 2022
Date of Judgment: 11 November 2022

Mr G Gray for the Appellant
Ms H Naqu for the Appellant

Lawry; PJ

JUDGMENT ON APPEAL

Introduction

1. On 18 March 2020 the Appellant was convicted in the Magistrates Court on one charge of domestic violence contrary to section 58(1) of the Family Proceedings Act 2014. The prosecution alleged that he physically abused the Complainant at his accommodation in the Police barracks. The defence case is that he was attacked by the Complainant and that he required medical attention for the injuries he had suffered in that attack. He has appealed against his conviction.
2. The Appellant has raised six grounds of appeal. The appeal was scheduled to proceed on 3 November 2022 having previously been vacated. The Court had heard argument on a preliminary issue and on 6 October 2022 the Court granted leave for the Appellant to file evidence from a Dr Kabwere. On 3 November 2022 the Respondent sought an adjournment in order that further submissions may be filed.

Evidence

3. The Appellant had filed two sworn statements relating to medical evidence that had not been called at trial. The Respondent had filed a sworn statement from the Appellant’s trial counsel. Arrangements were made for cross examination of those deponents at the hearing of the appeal. The Appellant opposed the Respondent’s application for a further adjournment. Counsel for the Appellant was concerned that Dr Kabwere, who was present at Court for the purpose of cross examination, should not be further inconvenienced. As a result arrangements were made for the doctor to be cross examined in the afternoon of 3 November 2022, if required by the Respondent. He was not so required.
4. The Court invited counsel to address the Court on the fourth ground of appeal. That ground read as follows:
   • “That the Learned Deputy Chief Magistrate erred in law to convict the accused where there is sufficient evidence adduced at trial to support the defence version that the Accused acted in self-defence when he inflicted the injuries suffered by the Complainant.”
5. The Respondent sought time to provide written submissions on the issue of self-defence, in addition to those advanced orally in Court. Submissions from the Respondent were subsequently received by the Court. Counsel for the Appellant was given the opportunity to respond to those submissions.
6. The Complainant acknowledged that she had assaulted the Appellant. She agreed that kicked the door to his room. She agreed that she wanted to argue with him and that she bit him. She said she was angry with him for not ringing her the previous night. She acknowledged grabbing his testicles.
7. The defence case was that the Complainant had bitten the Appellant on his thigh, grabbed his testicles and stabbed him in the abdomen with scissors. The allegation of being stabbed with scissors was not put to the Complainant. The Complainant however acknowledged that had she not assaulted the Appellant she would not have received injuries.
8. The Complainant did receive injuries. She said that she was hit with a windscreen wiper as she struggled with the Appellant. She said the Appellant hit her on her hands and thighs. He hit her on the finger fracturing her finger. The prosecutor was given leave to cross examine the Complainant. It was put to her that he used a baton on her. She did not reply to that but acknowledged she had received injuries.
9. The Complainant received medical assistance. A medical report from Dr Haisoma was produced. The report indicated that the Complainant presented with swelling to the back of her head, both forearms, hands and thighs. Bruises were seen on her thighs, legs and hands. She had a lacerated wound on her leg. She was reported as being unable to walk. An x-ray confirmed the fracture to her finger.
10. The Appellant gave evidence. His account was to the effect that he was attacked and used a windscreen wiper not a baton on the Complainant. The evidence of the Appellant did not explain how she would have received the injuries she suffered.

Self defence

11. The Magistrate correctly identified the issues at paragraph [29] of the judgment. One was whether the Appellant had the necessary intent. The second was whether what he did was done in self-defence. It is not clear what trial counsel was submitting regarding intention as he suggested the prosecution had to prove malice aforethought. That clearly is not so. Perhaps he meant that the Accused lacked the necessary mens rea. The prosecution did not need to prove that the Appellant intended to cause the injuries that were suffered.
12. It is clear that self-defence was raised on the evidence. It is also clear that the Magistrate recognised that self-defence had been raised. The Court of Appeal in Waidia v Regina [2015] SBCA 12 gave clear guidance about how the Court should approach a claim of self-defence. Once the defence is raised the prosecution must prove beyond reasonable doubt that the Appellant was not acting in self-defence. In the circumstances of this case the prosecution was required to prove to that standard that the Appellant was not acting to defend himself or that the force he used in defending himself, was excessive.
13. The Court is required to ask itself two questions. The first question is whether the use of force was necessary in the circumstances. The second question is whether the force used was reasonable in the circumstances. In order to answer those questions it is necessary to make a finding of what the Appellant honestly believed the facts to be. The next step is to ask whether, on the basis of the facts as the Appellant honestly believed them to be, a reasonable person would regard the force used as reasonable or excessive?
14. At paragraph [17] of Waidia the Court of Appeal set out the process to be followed. The Court said:
    • “For the above principles to be applied it is necessary as a preliminary step to identity that which the trial judge finds took place of the evidence having determined which evidence can be relied upon and which evidence cannot be relied upon or must be rejected. After that step has been concluded, and those findings set out in the judgement, the trial judge can proceed to apply the test and reach a conclusion as to whether the prosecution have discharged the burden which rest on it beyond reasonable doubt.”
15. While the Magistrate did not accept the evidence of the Appellant he did not make any finding of what actually took place. He did not consider what the facts were as the Appellant honestly believed them to be. He made no finding as to whether the Appellant was acting in the defence of himself nor did he make a finding as to the reasonableness of such force. The Court having found that the Appellant physically abused the Complainant did not go on to deal with the issue of self-defence.
16. In the judgment the Magistrate makes no finding as to whether the Appellant was acting in the defence of himself or retaliating to what the Complainant did. There is no finding as to whether he considered the force used by the Appellant was necessary or excessive. The Court appears to have considered that in light of the injuries suffered by the Complainant the charge was made out. In these circumstances the defence of self-defence has not been properly considered. It is understandable how the Court overlooked dealing with the issue of self-defence as trial counsel did not address the issue in his closing address. It follows that the appeal must be allowed and the matter sent back to be re-heard before a different Magistrate.

Conclusion

17. In these circumstances it is not necessary to consider the other grounds of appeal. It should be noted however that the Magistrate does appear to have drawn an inference adverse to the Appellant from his exercising his right to silence. Section 173 of the Evidence Act 2009 does not permit such an inference to be drawn. It is, however, not necessary to decide this point as the appeal must succeed as the Court did not deal with the issue of self-defence.

Order

1. This appeal is allowed. The conviction and sentence are set aside and an order is made that the matter be remitted to the Magistrates’ Court for re-trial.

By the Court
Justice Howard Lawry,
Puisne Judge