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R v Tome [2024] SBHC 107; HCSI-CRC 67 of 2022 (6 March 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 67 of 2022

REX

V

CECILIA SAMANI TOME

Date of Ruling: 6 March 2024

Suifa’asia M for the Crown
Kausimae H (Late) for Respondent

RULING

Maina PJ:

1. The Crown appealed the ruling of the presiding magistrate on the no case to answer and acquittal of the defendant on one charge of embezzlement contrary to section 273 (b) (ii) of the Penal Code.
2. The presiding magistrate made an oral ruling on 11 May 2021 followed by a written judgment dated 14th June 2021.

The Grounds of Appeal

3. The presiding magistrate erred in law when she held that the accused has no case and acquitted her on the charge. She had prejudged the case, narrowly interpreted the elements of embezzlement and acquitted the defendant against the weight of evidence. Presiding magistrate had failed to consider larceny as alternative charge with the weight of evidence produced by the Crown.
4. The Prosecution seeks the orders that:
   • (i) The ruling delivered on 31 May 2021 by the presiding magistrate be set aside, and charges reinstated forthwith.
   • (ii) Remit the matter to a different Magistrate as the Principal Magistrate who presides over the case prejudged the matter.
   • (iii) Any such other orders in this matter, as the court is just to make.

Brief Background

5. The Ministry of Education and Human Resources mistakenly or incorrectly remitted and the Finance and Treasury transferred a sum of $3,806,297.77 to the defendant’s ANZ bank account. The defendant used $1,393, 996.30, part of the total sum. She was charged for the offence on embezzlement on part of the money she had used.
6. The trail was on papers and the counsels agreed or choose not to call any witnesses and any cross - examine of the witnesses in the case.
7. The prosecution then tendered to the court 18 sworn statements, one record of interview and 8 documents/exhibits.
8. Upon the prosecution tendering the evidences in papers, the presiding magistrate directed the counsels to make the submissions and on an issue or theory, which the magistrate said the prosecution base or rely in evidence thus to enable the process of the trail to proceed on.
9. With the court’s direction, the counsels made their submissions and the presiding magistrate then proceeded to analysis the evidences and made a ruling.
10. It was a verbal ruling that the defendant has no case to answer and acquitted her under section 197 of the Criminal Procedure Code on the charge of embezzlement and later a written ruling of the case.

The Issues

11. The appeal relate to the process of the determining the ruling in the case and the issues are:
    • (i) Whether the presiding magistrate had erred in law with the process of determination the case or erred when she failed to apply the test of no case to answer that resulted to the no case to answer and acquittal under section 197 of the CPC of the accused.
    • (ii) Whether the presiding magistrate erred in law when she failed to consider larceny as alternative charge based on the weight of evidence produced by the Crown.
    • (iii) Whether the presiding magistrate had prejudged the case before hearing or trail of the case.
    • (iv) Whether the presiding magistrate had erred in law when she interpreted the element of embezzlement.
    • (v) Whether the acquittal of the defendant is against the weight of evidence produced by the Crown in support of the charge.
12. There was a verb ruling followed by a 17 pages of the evaluation of the evidences in the written judgment.
13. It is not disclosed in the written judgment or record of proceeding if the ruling or judgment of no case to answer was made at the closed of prosecution evidences and or after tendering of their evidences on sworn statements, record of interview of the defendant and documents/exhibits.
14. It is also not disclosed if or the accused decided to remain silence and or call no any evidence.
15. It appears from the written ruling that evaluation came at the close of the evidence as a whole or the decision was made in the analysis of the evidences of facts to the element of the offence of embezzlement.
16. The above features or circumstance prompts me to deal firstly with Issue I. It should be noted that Issue II relate to this ground and may result to larceny as the alternative charge. If this issue succeeds, I think that would be end of the appeal case.
17. The appellant has alleged that the presiding magistrate erred in law with the process in determining the prosecution evidences which resulted the accused has no case to answer and acquitted on the charge.
18. For this issue I think it is proper to check the ruling or judgment of the presiding magistrate in the case.
19. In the written ruling entitled “No Case to Answer Ruling”, the presiding magistrate made a ruling that prosecution had not made out its case sufficiently in accordance to section 197 of the CPC. She then ruled that the defence has no case to answer and acquitted the accused.
20. The decision of the case was at the process of trail, which the presiding magistrate described as “trail on papers”. For the prosecution case, they tendered the 18 sworn statements one record of interview and 8 documents/exhibits to the court.
21. The ruling of the presiding magistrate contains this statement:
    • “Counsels did not choose to call any witness nor cross examine any witnesses as it was agreed that all evidence were not contested”.
22. Further it contain the direction of the presiding magistrate to the counsels to make submissions on a matter or issue:
    • “The only issue was to legally argue for their respective theory of the case and do submissions on the evidence relied upon by the prosecution”
23. It was on the counsels’ submissions with this issue or theory the presiding magistrate said would proceed and decide the case.
24. For the prosecution’s case, it tendered evidences the sworn statements, the record of interview and the documents/exhibits to the court.
25. These papers contain the evidence that the sum of $3,806,297.77 was mistakenly or incorrectly remitted and the Finance and Treasury to the defendant’s ANZ bank account. She used $1,393, 996.30 that was part of the money. The defendant admitted that the money was paid in her ANZ account and she withdrew and used part of the money.
26. The prosecution evidence also disclosed that the accused admitted that she used the money wrongly paid in her ANZ account.
27. It is with the prosecution evidences with the submissions by the counsels on the theory or issue that the presiding magistrate then proceeded and made her ruling and orders that the accused has no case to answer and acquitted in accordance to section 197 of the CPC.
28. It is not clear in the 17 pages ruling if the ruling of no case to answer was after the prosecution tendering of the sworn statements, a record of interview and documents/exhibits at the close of the prosecution evidences.
29. It is also not mention in the ruling the accused decided to remain silence and call no any evidence nor did it mention the evaluation came at the close of the evidence as a whole.
30. Interesting to note from the ruing that when the presiding magistrate analyzed the facts or evidences for the no case to answer she evaluate the creditability of prosecution evidences and realistically or applied the facts to the elements of the embezzlement.
31. Upon that, she ruled that the prosecution evidences do not satisfy the elements of the embezzlement and the ruling was no case to answer and acquitted under section 197 of the CPC.
32. The application of section 197 of the CPC is quite straightforward. It should be at the close of the prosecution case that if there is no evidence in support of the charge or if it appears to the court that a case not made out by the prosecution to require accused person to make a defence; the court could dismiss the charge and acquit the accused.
33. This section 197 of the CPC provision places the court or onus as a fact finder to decide if there is sufficiently a case made out to require the accused defend the charge.
34. The evidences or fact in prosecution case is that the Finance and Treasury mistakenly or incorrectly remitted the sum of $3,806,297.77 to the defendant’s ANZ bank account. The accused knew it was not the money for her salary but she withdrew and used the sum of $1,393, 996.30 from the money.
35. The defendant did not deny that the money was paid in her ANZ account and she withdrew and used part of the money.
36. The prosecution evidences or facts should be clear otherwise whether it bears the facts sufficiently for the accused to make the defence or if the prosecution’s evidence could result in a conviction, the accused must be put to his defence.
37. With this issue the Defence counsel the response in the submission that they conceded and that there can be argument that the error of law was committed by the lower court in the application of the test of no case to answer. Defence said it is apparently obvious from the court judgment but did not make any further submission on this ground.
38. The ruling was under section 197 of the CPC and the ruling of no case to answer was at the stage when the presiding magistrate evaluate the evidences or matters of discrepancies; the fact that it was not her own fault when the money was remitted to her ANZ account and the evidences by prosecution were not credible and accurate.
39. In the case R v Lutu [1985 - 1986] SILR 249, his Lordship CJ Ward stated on the stage of no case to answer:
    • “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, and then the accused must be put to his defence.
40. With this case the presiding magistrate used the stage of no case to answer and evaluate such matters as discrepancies between witnesses or as though that all matters at conclusion of the evidences as a whole.
41. The act of the presiding magistrate in evaluate such matters or what seems as entire evidences at conclusion of the evidences as a whole is not proper in law.
42. The ruling that the accused had no case to answer under section 197 of the CPC with the evidences or fact and although the accused knew the money in her ANZ account which she used part of it shows the accused has a case to answer.
43. The offence relate to larceny offence if at least was at the conclusion of evidence as a whole, the court may consider alternative offence in the charge.
44. I am satisfy the presiding magistrate erred in law in the process and to and rule the accused no case to answer and acquittal her on the charge was in accordance with section 197 of the CPC.
45. The other issues relate to this Issue 1 and the ruling now should resolve the other or error of law in the process in the hearing is now upheld. This should rest the appeal at this stage.

Orders of the court

(i) The ruling delivered on 31 May 2021 is set aside, and charges reinstated forthwith.
(ii) The matter is remitted to the Magistrate Court and to be heard again by different Principal Magistrate.
(iii) No further order.

THE COURT
Hon. Justice Leonard R. Maina
Puisne Judge