Ipao v R [1982] SBCA 1; [1982] SILR 128 (8 December 1982)

[1982] SILR 128

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Criminal Appeal Case No. 1 of 1982

IPAO

v

R

Court of Appeal of Solomon Islands
(Daly P, Kelly J.A., Kapi J.A.)
Criminal Appeal Case No.1 of 1982

8th December 1982

Crime - alibi - burden of proof - misdirection - Appeal proviso - application of - judge sitting alone.

Facts:

On a trial for murder the appellant raised the question of an alibi. In directing himself as to the alibi the trial judge referred to the defence having to “make me less sure by satisfying me on the balance of probabilities”. Before dealing with the alibi the trial judge made a finding on the prosecution case that the appellant was at the scene of the crime at the relevant time. On appeal:

Held:

The direction as to the burden of proof of the alibi was a misdirection. However the court could analyze the reasoning of the trial judge from his judgment and by finding on a correct basis that the appellant was at the scene of the crime, this misdirection became irrelevant. There was a strong case for conviction. The proviso to Rule 36(1) of the Court of Appeal Rules 1973 would be applied and the appeal dismissed as not substantial miscarriage of justice had actually occurred.

Cases referred to:

Woolmington v. DPP [1935] UKHL 1; 25 Cr. App. Rep. 72
Lobell (1957) 41 Cr. App. R. 1000
Johnson (1961) Cr. App. R. 55

For Appellant: K. Brown
For Respondent: L. Holt

Daly P: This is the judgment of the Court.

This is an appeal against a conviction of murder contrary to Section 193 of the Penal Code recorded against Peter Ipao (‘the appellant’) by a Commissioner of the High Court sitting at Auki in the Malaita Province on the 18th August, 1982. The appellant pleaded Not Guilty to the offence and represented himself during the trial. No criticism is made of the conduct of the trial itself and a perusal of the record shows that the learned Commissioner commendably went to great lengths to ensure that the appellant was not at a disadvantage from his own decision not to be represented.

The prosecution alleged that the appellant performed a particularly brutal murder following accusations and counteraccusations of a nature most serious in custom between the family of the victim and the appellant. The victim was a boy aged 9 years. On the 9th November 1981 the victim went off into the bush from his village carrying a bush knife. At about 4.00 p.m. he passed a bush garden and called out to the people working in it before going off on a road leading to a stream. The victim was later seen the same day in the company of the son of the appellant. This was the last time the victim was seen alive.

The victim did not return home that day and when a search took place the next day his body was found lying face down in the river. There were three holes to the chest of the body and there was a large wound across the back which had been caused by a blow which had severed the back bone.

The evidence against the appellant consisted of evidence of a threat made by the appellant to the mother of the victim that he would one day kill her or one of her children; evidence that on the day in question the appellant was seen at about 4.00 p.m. in his canoe in a passage close to the area where the body was found. The canoe was said to have in it spears, a bow and a big knife. Evidence was also led that the appellant made a full confession on 4th December 1981 to police officers in which he admitted that because of the enmity between the families he instructed his son Joe to lead one of the children of his enemy to him so that he could kill him. When the appellant’s son arrived with the victim, the appellant shot the victim with an arrow in his chest and after he fell in the river, the two, son and father tried to drown the victim. This being unsuccessful the appellant then struck the victim across the back with an axe and left him dead in the water.

The appellant’s son gave evidence which was substantially in the same terms as the statement given by his father. The son claimed he participated under duress.

The defence at the trial was an assertion that none of the evidence as to events relied upon as showing participation by the appellant was true. As to the statement, the appellant claimed that it was an untrue statement that had been extracted from him by physical violence used on him by police officers. The appellant also said that on the day in question he stayed at home.

It is, then, apparent that this was a case which turned entirely upon credibility of witnesses. The learned Commissioner examined the evidence in the course of a seven page judgment. He approached the evidence of the son of the appellant with the appropriate degree of caution and warned himself of the necessity for corroboration in respect of such evidence. He found that he was sure that the evidence as to the threat was true; that the appellant was in the vicinity at a material time in a canoe; and that the confession was voluntary and was true. He decided in the circumstances he could believe that the evidence of the son was also true.

The learned Commissioner made a finding rejecting the alibi. We should perhaps observe in parenthesis that the court was initially concerned about a passage in the judgment concerning the alibi in which the learned Commissioner said “I believe his own wife was telling the truth in her statement as she confirmed in evidence”. However the learned Director of Public Prosecutions has explained that this passage, which does not accord with the record of the evidence, does in fact accurately reflect what was said in court by the wife of the appellant when her statement to the police was put to her in cross examination. At that stage she stated that her husband was out all day.

The final conclusion of the learned Commissioner that he was “sure beyond all doubt of the guilt of the accused” would be unassailable apart from one sentence in the judgment. The learned Commissioner directed himself in impeccable terms as to the general burden of proof upon the prosecution in a case such as this. He then went on:-

“Assuming the Prosecution makes me sure, the burden on the Defence is far less onerous, the Defence only have to make me less than sure by satisfying me on the balance of probabilities that the accused was at home on the day, or during the part of the day, when the crime was said to have committed. If the Defence succeed in this, then it is my duty not to convict, I do not have to be sure that he was at home at the relevant time, just that there was real possibility that he was. I don’t have to have it proved by the Defence that PW 8 Joe Hanaiora committed the crime, I have to have it proved by the Prosecution that the accused did commit it, beyond all reasonable doubt”.

It is the words “the Defence only have to make me less sure by satisfying me on the balance of probabilities” of which complaint is made in the notice of appeal.

It is accepted on all hands that this passage is a misdirection; there is in law no burden of proof on an accused man who seeks to put forward as his defence an alibi. Such an obvious proposition is established by a number of authorities to which it is not necessary to refer in detail. See, for example, Woolmington v. DPP 25 Cr. App. 72; Lobell (1957) 41 Cr. App. R. 1000; and Johnson (1961) 46 Cr. App. R. 55.

It is however the effect of the misdirection in this case which has resulted in the arguments which we have heard at the bar. Counsel for the appellant relies upon Rule 36(1) of the Court of Appeal Rules, 1973 (‘the Rules’) which so far as is relevant reads:-

“on any appeal against conviction to the Court of Appeal, the Court of Appeal shall allow the appeal if it thinks that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law...”

The learned Director submits however that this Rule does not apply as there is no such wrong decision of law as could lead this court to say the decision “should” be set aside. However the learned Director conceded that there was a misdirection in law and we are of the opinion that there was a wrong decision on a question of law in this case such that the point raised might be decided in favour of the appellant.

But that is not an end to the matter as it is submitted that this is a case in which the proviso to Rule 36(1) should be applied. This reads:-

“Provided that the Court of Appeal may notwithstanding that it is of the opinion that the point raised in appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

Such a provision is commonly found in appeals legislation in many countries and has been considered in a number of cases by courts throughout the world. We are indebted to counsel for the fair and full way in which they took us through the authorities. However it must be observed first, that the question of whether the proviso is to be applied necessarily depends on the facts of the particular case and secondly, in almost all the cases to which we were referred there had been a trial with a jury. The words in the proviso to Rule 36(1) have a clear meaning which this court must endeavour to apply to the case before it. Whether the case be one of murder or a lesser offence this court must give very careful consideration to the applicability of the proviso. It must do so having regard to all the facts of the case and the matters found to have gone wrong in the course of the trial. Particular attention must always be paid to the form and reasoning in the judgment which resulted in the conviction; in this sense this court, having before it a reasoned judgment, is in many ways in a better position than a court considering a summing up by a judge and the plain finding of a jury untrammelled by reasons. We can assess whether a misdirection of law led, for example, to a wrong approach to the evidence when it came to be considered.

To turn again to the facts of this case the vital issue was, could the prosecution make the learned Commissioner sure that this appellant was at the scene of the crime wielding the weapons that caused the injuries and subsequent death of the victim? When the learned Commissioner found the threat established; when he found that the appellant was in the locality armed; and when he found that the appellant had made a full voluntary confession there was a strong case for conviction. If one accepts the confession as corroboration of the evidence of the son given on oath the case becomes overwhelming. On making those decisions, which were based entirely on a proper assignment of the burden of proof beyond reasonable doubt to the prosecution, the rejection of the accused’s alibi became inevitable, whatever test the learned Commissioner applied. Indeed at that stage the test to be applied to the alibi became irrelevant as the rejection of the alibi had already taken place when the learned Commissioner found that “the accused was there in the canoe that afternoon”.

Should in those circumstances the proviso be applied? We have commented on the strength of the prosecution case and the nature of the defence raised; we have commented on the course of the trial; and we have observed that in the final analysis the decisions reached correctly by the learned Commissioner on the evidence could only result in the rejection of the alibi. After considering all these matters and applying our experience as trial judges to this case as a whole we are satisfied that this was a trial in which “no substantial miscarriage of justice.... actually occurred”.

We therefore apply the proviso to Rule 36(1) of the Rules and dismiss the appeal.