Gerea v Director of Public Prosecutions [1984] SBCA 2; [1984] SILR 161 (11 December 1984)

SOLOMON ISLANDS COURT OF APPEAL

GEREA AND OTHERS

-v-

DPP

Solomon Islands Court of Appeal
(Sir John White P, Connolly and Pratt JJA)

Criminal Appeal No. 1 of 1984

2nd October 1984 at Honiara
Judgment 11th December 1984

Criminal-Law - appeal questioning judge's finding of facts and credibility of witnesses test to be applied - Constitution S. 10(1) - "hearing" meaning of - whether mandatory penalty for murder is unconstitutional

Facts:

The appellants were convicted of murder c/s 193 of the Penal Code on 22nd March 1984. Two of the appellants appealed on the ground that the trial judge erred in believing the evidence of the prosecution witnesses in view of inconsistencies and discrepancies in their evidence. One appellant appealed on the ground that the mandatory penalty of life imprisonment for murder was unconstitutional in that it contravened S. 10(1) of the Constitution depriving the appellant of a fair hearing by an independent and impartial court as far as the hearing related to the question of sentence.

Held:

1. Whilst an appellate court can review decisions based on findings of questions of fact or the credibility of witnesses made by a trial judge it should only reverse his decision if it is convinced that the trial judge was wrong.

2. that the hearing referred to in S. 10(1) of the Constitution included the sentencing process as this was part and parcel of the case and until it was carried out the hearing was not finally concluded.

3. that a mandatory fixed penalty for an offence was not unconstitutional as depriving the appellant of a "fair hearing" provided that the penalty was general in its application and was directed to all citizens and not just particular or named citizens or a class of citizens (dicta of Lord Diplock at p.226 in Hinds -v- The Queen (1977) A.C. 195; 1976 1 All ER 353 approved and applied)

4. that the provision of a generally applicable mandatory fixed penalty was within the power of Parliament and such a provision does not interfere with the independence of the judiciary.

Accordingly the appeals of all appellants were dismissed.

Cases referred to:

Caldeira-v- Gray [1936] 1 All ER 540
Shaw -v- Hope [1877] 25 WR 729
Green -v- Croome [1907] UKLawRpKQB 173; [1908] 1 KB 277
Stone -v- Scaife [1945] N.Z.L.R. 698
Ministry of Transport -v- Nicol [1980] NZCA 72; [1980] N.Z.L.R. 436
Wozniak -v- Wozniak [1953] 1 All ER 1192
R. -v- Warwickshire Justices 4 L.J.M.C. 62
Green -v- Lord Penzance 188 VI AC 657
Bridie -v- Messina [1965] NSWR 332
Hinds -v- The Queen [1977] AC 195, [1976] 1 All ER 353
Deacon -v- The Attorney-General and The Revenue Commissioners [1963] 1 R 170
Lynhan -v- Butler (No. 2) [1933] 1R 74
Liyanage -v- R. [1965] UKPC 1; [1967] AC 259 [1966] 1 All ER 650

Andrew Radclyffe, Public Solicitor's Office for the appellant Gerea.
Andrew Nori, for the appellant Faiga
Kenneth Brown, Public Solicitor, for the appellant Karai
Francis Mwanesalua, Director of Public Prosecutions in person

White P, Connolly JA: The appellants were convicted before the High Court (Daly C.J.) on 22nd March, 1984 of the murder of Wilson Dausina at Dala North Road, Malaita Province on 23rd December, 1983 contrary to s. 193 of the Penal Code.

Gerea and Karai appeal (pursuant to leave granted on 30th April, 1984 by Kelly V.P.)on the ground that the learned Chief Justice erred in believing the evidence of the prosecution witnesses in view of the inconsistencies and discrepancies in their evidence.

The deceased met his death as a result of kicks and blows which he received on the road which runs from Auki to Malu'u. He sustained injuries to both sides of the face and head leading to haemorrhage into the brain.

The three appellants with others were passengers in a truck driven by one Seda Faiga (the brother of the second appellant) which left Auki for Malu'u shortly before 6.00 p.m. All three had been drinking and they brought both beer and gin with them in the truck. In the vicinity of the road to Kakara a Bedford truck passed Seda Faiga's truck travelling south towards Auki, and in so doing scratched the offside of Faiga's truck.

Seda Faiga asked the passengers if they knew the number of the Bedford and his brother, the second appellant, according to a passenger named Iro'ota shouted loudly to Seda - "Let's go and get the truck." Seda ordered the passengers out and turned his vehicle around. However not all the passengers in fact got out, three who remained being the Crown witnesses Iro'ota, Isaramo and Eroi. Seda proceeded to chase the Bedford. According to Iro'ota the three appellants appeared cross and said that if they caught up with the Bedford they would "kill" the man "as he has spoiled our truck". Isaramo confirms much of this although his evidence does not refer to the threat to the driver of the Bedford made by the three appellants. He says that the three of them were standing behind the cabin and that the truck went fast.

At the bottom of Ferakui Hill the Bedford was overtaken. It was then stopped on the left side and facing in the direction of Auki. The evidence of the Crown witnesses is that the three appellants dismounted as did Seda Faiga and that the four of them and possibly another man approached Dausina after which the three appellants attacked him rendering him unconscious. All three Crown witnesses say that the appellant Faiga struck Dausina and kicked him and that the appellants Gerea and Karai both kicked him as he lay on the ground. The areas of inconsistency and discrepancy relied upon by the appellants concern ,essentially the location of the attack on Dausina in relation to the Bedford truck, the proponderance of evidence being that it occurred on the near side of that vehicle; and the question whether Eroi could have seen the attack having regard to the relative positions of the vehicles.

As to the first point there can, it seems to us, be little doubt but that the attack occurred on the near side of the Bedford. Iro'ota says that he walked around to the front of the Bedford and observed the altercation on its near side from there. Although it was night by then both Seda's truck lights were on as were those of another truck which was stationary in the vicinity facing north and belonging to one Mani. Isaramo says that it took place on the left side of the Bedford and he gives a circumstantial account of the attacks on Dausina which are the same in sequence as that given by Iro'ota. In cross-examination by counsel for Gerea he said that the attack took place at the side of the Bedford in the middle of the road. He told counsel for: Faiga that the fight was on the right of the Bedford in the middle of the road but he also told him that he could not see the people speaking as they were around the left-hand side. He then said that both Seda and Dausina came to the front of the Bedford where David Faiga hit Dausina who fell down on the right-hand side of the truck. Finally he told counsel for Karai that he did not see any kick or blow taking place on the left-hand side of the truck.

Eroi plainly puts the altercation on the left-hand side of the Bedford and indeed says that the fight happened on the bush side which obviously would be the near side of the vehicle.

There is plainly an inconsistency between part at least of the evidence of Isaramo and that of the other two Crown witnesses. This discrepancy was rightly emphasized by the learned counsel for the prisoners at the trial and the learned Chief Justice was well aware of the discrepancies in the evidence. His Lordship's conclusion was that despite the discrepancies to which he gave careful consideration he found the three prosecution witnesses each to be impressive in the way in which he gave his evidence. The learned judge is recorded as saying that the picture which they built up in his mind was a clear one and that that picture involved the active participation of each of the three prisoners in the attack upon the deceased. The learned judge found the evidence of the appellants to be in high contrast with that of the Crown witnesses describing it as most unconvincing. It is possible that this particular discrepancy derives from some confusion in the witness' mind either between right left as such or as to which side of the vehicle is to be described as the left and which the right side. Isaramo was never asked, as a means to resolving the discrepancy, whether the altercation occurred on the bush side or the road side of the Bedford. In our opinion, while giving full weight to the discrepancy which appears in the record, it does not warrant interference by this Court with findings of fact by a trial judge who saw and heard the witnesses. The incalculable advantage enjoyed by a trial judge over an appellate court in matters of credit based upon demeanour is well established and is recognized in all the leading cases. In our judgment it would be contrary to principle for us to interfere upon this ground.

There is no point in multiplying authority in an area which is so well settled. For present purposes the law which governs the role of an appellate court in entertaining an appeal on a question of fact which has been tried by a judge sitting as a jury is authoritatively stated by the Privy Council in Caldeira v. Gray [1936] 1 All ER 540, a decision to which we were referred by the Director of Public Prosecutions, Mr Mwanesalua. At p. 541 Lord Alness delivering the judgment of their Lordships said:-

"The appellant is exercising a right of appeal which is his by right, and their Lordships recognise that they cannot, merely because the question is one of fact, and because it has been decided in one way by the learned trial judge, abdicate their duty to review his decision, and to reverse it, if they deem it to be wrong. None the less, the functions of a court of Appeal, when dealing with a question of fact, and a question of fact, moreover, in which, as here, questions of credibility are involved, are limited in their character and scope. This is familiar law. It has received many illustrations - and, in particular, in the House of Lords - the most recent of these being the case of Powell and Wife v. Streatham, Manor Nursing Home [1935] A.C. 243. In that case it was held that:

'Where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge has formed.'

Lord Wright, in the course of his speech at p. 265, said:

'Two principles are beyond controversy. First, it is clear that, in an appeal of this character, that is from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal "must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong." ' "

The attack on Eroi's evidence is based on the fact that he did not at any time alight from Seda Faiga's truck. He had been sitting in the back of the truck and it was contended that he could not possibly have seen what occurred on the near side of the Bedford. This obviously depends on the relative positions of the two vehicles. Now Iro'ota had produced a sketch plan which wad Ex. 1 and which was unfortunately mislaid. Put before us was a reconstruction of Iro'ota's plan which was agreed by counsel. This shows Seda Faiga's vehicle drawn parallel to the Bedford and overlapping it by approximately two-thirds of its length, from which position it would be difficult indeed for a witness in the back of the truck to have seen what was happening on the ground on the far side of the Bedford. The fact however is that this sketch plan does not reflect the evidence. Iro'ota said that Seda Faiga's vehicle was two yards to the rear and to the right of the Bedford. Isaramo said that Seda's truck stopped about five to seven yards away from the Bedford. At another point he said that Seda's truck was parked behind the Bedford in line and three to seven yards from it. The record would suggest that he was asked to indicate and that he pointed in some fashion to a distance which is recorded as about ten yards. Eroi said that Seda stopped at the Bedford and behind it. Gerea puts Seda's vehicle as having stopped three yards behind the Bedford and Karai is much to the same effect putting the distance at two to three yards. Eroi in his evidence has himself sitting down at some stages and standing up in the back of Seda's truck at others. In cross-examination by the learned counsel for Karai he said that he stood up in the truck trailer at the right side in the middle, whatever that may mean, and that he could see the fight when he was standing up. He said in relation to Karai that he saw him on the right side and also saw him on the left side when they kicked the man. In this state of the evidence the learned Chief Justice, rightly in our opinion, was unable to conclude that Eroi was incapable of seeing the incident and that his evidence should therefore be rejected. This ground also fails. It would follow that the appeals of Gerea and Karai should be dismissed unless the ground taken by Faiga to which we must now turn should succeed. As this ground attacks the validity of the provision of the Penal Code under which all three appellants were charged it would follow that all appellants must necessarily have the benefit of it should it succeed.

Faiga has appealed as of right on the ground that s. 193 of the Penal Code, which creates of the offence of murder, is unconstitutional in that:

"It contravenes section 10(1) of the Constitution of Solomon Islands in as far as:-

(1) it imposes the mandatory penalty of life imprisonment whereby it deprives the courts of the discretion to impose sentence in accordance with the circumstances of each case,

(2) in view of the mandatory penalty prescribed it deprives the Appellant of the right to fair hearing by an independent and impartial court in as far as the said hearing relates to the question of sentence."

Section 10(1) of the Constitution reads as follows:

"10(1) If any person is charged with a criminal offence, .then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."

By s. 2 of the Constitution it is provided that the construction is the supreme law of Solomon Islands and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void. The Constitution came into effect on 7th July, 1978 by virtue of an Imperial Order-in-Council of 31st May, 1978. That Order made specific provision for the continuance of existing laws which were to have effect on and after the appointed day, which was 7th July, 1978, as if they had been made in pursuance of the Constitution. Clause 5(1) of the Order-in-Council requires them to be construed "with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Solomon Islands Act 1978 and this Order-in-Council". It was not suggested that there was any disconformity between s.193 and the Act of 1978, but as the Constitution is part of the Order-in-Council, being a schedule thereto, s.193 would require modification, adaptation or qualification if it is inconsistent with s. 10(1).

Section 193 reads as follows:-

"193. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life."

The inconsistency between this provision and s.10(1) is said to lie in the fact that the mandatory sentence of life imprisonment trenches upon the independence of the High Court by requiring it to impose that and no other sentence upon conviction. Two answers are made to this contention. First of all it is said that the requirement of an independent and impartial court is limited to the period of the hearing. It is then contended that the hearing extends from arraignment to verdict but does not include the sentencing process. The word "hearing" is not a term of art and may well have different meanings depending upon the context in which it is found. For our part however we find it difficult to conceive of a provision such as s. 10(1) guaranteeing an independent and impartial court for part of the judicial process but not for the rest of it. It cannot seriously be suggested that the Constitution of Solomon Islands calls for an independent and impartial court up to verdict but would accept with equanimity something less when the sentencing process commences. In our judgment the expression "hearing" in S.10(1) quite plainly extends to the entire judicial process from the time when the person is charged with a criminal offence until he is ultimately disposed of by the courts.

We were referred to numerous authorities in which the words "trial" and "hearing" having been considered. In the final analysis, as it seems to us, the words used take their colour and meaning from the context in which they are used and the purpose of the enactment in question. Thus the word "trial" for the purpose of calculating the time for a notice of motion for a new trial has been held to conclude with the verdict, not the judgment on further consideration: Shaw v. Hope (1877) 25 W.R. 729; Green v. Croome [1907] UKLawRpKQB 173; [1908] 1 K.B. 277; Stone v. Scaife [1945] N.Z.L.R. 698 and the power to amend during the hearing has been held not to empower amendment after the judge finds the charge proved or dismisses it: Minister of Transport v. Nicol [1980] NZCA 72; [1980] 1 N.Z.L.R. 436. On the other hand when the liability of an assisted person for costs was to be assessed "at the trial or hearing" it was held that it must be done on the final determination of the matter and not on interlocutory proceedings: Wozniak v. Wozniak [l953] 1 All E.R. 1192. The rationale of each of these decisions is plain enough and it is obvious that the meaning of the word will vary with the context in which it is used. Indeed Lord Denman.C.J. remarked in R. v. Warwickshire Justices 4 L.J.M.C. 62 that sometimes to hear is not quite the same as to hear and determine. In Green v. Lord Penzance the question was whether, a cleric having been found guilty of contumacy, the significavit, which was the equivalent of an authenticated judgment, was properly issued at Westminster although the judge was acting as an officer of the Chancery Court of York. It was however a case in which the judge had been required, pursuant to an Act, by the Archbishop of Canterbury, to hear the matter "at any place within the diocese or province or in London or Westminster." Lord Selborne L.C. at p. 669 said:

"It appears to me that the whole determination of the matter of the representation with all its necessary antecedents and proper consequences was intended by and included in that power, which is given to the Archbishop to require the Judge to 'hear' it in London or Westminster. There are various things to be done by him under the Act before the hearing and preparatory to it; orders as to evidence, orders as to attendance of witnesses, notices, orders for the production of documents. Technically those are not a part of the hearing, but I entertain no doubt whatever that those things and every other thing, preliminary and antecedent to the hearing, are covered by and are included in the authority to 'hear', which I consider means to hear and finally determine It he matter of the representation which I consider to be equivalent to the cause, - the whole matter. Those antecedent things are in my judgment within that authority, and the 'hearing' within the meaning of these words does not appear to me to terminate till the whole matter is disposed of; therefore it includes not only the necessary antecedents, but also the necessary or proper consequences."

Lord Blackburn at p. 678 said:-

"Now comes the question, what does 'hear' mean? It was disclaimed, and no doubt justly disclaimed, that it was ever intended to argue that it only meant to hear what was said, and that it did not include determining. Unless there be something which by natural intendment, or otherwise, would cut down the meaning and intention of the Legislature and make it less, I apprehend there can be no doubt that the Legislature, when they direct a particular cause to be heard in a particular Court, mean that it is to be heard and finally disposed of there."

Consistent with these statements is the view of Sugerman J. that a final conclusion is an essential feature of a hearing on the merits. See Bridie v. Messina, [1965] N.S.W.R. 332 at pp. 337-8.

The more serious question is whether a court can be said to be other than independent because a provision of the law imposes a mandatory sentence. Obviously the provision of a mandatory sentence excludes all discretion in the court. This, it may be noted, was the position for hundreds of years under the law of England in the days of capital punishment, when for murder the only sentence which might be pronounced was a sentence of death. For our part we find it difficult to believe that the courts were any the less independent on this account. Statutes in many countries make provision not only for mandatory sentences but for maximum and for minimum sentences. It may be said that the latter two categories leave the court some discretion but it cannot be denied that they restrict it. The fact however is that it is of the nature of the legislative process constantly to vary the content of the law to be applied by the courts. This means that with every exercise of the legislative power there comes into existence a new legal framework to which the court must give effect. Thus a court which is free to act on the principles of common law and equity may find that a new defence or a new cause of action is introduced by a statute. It cannot in our judgment, seriously be described as trenching upon the independence of the court to say that it is required to give effect to the alteration in the law. The courts exist to enforce the law in the form which it takes from time to time. They are, in our judgment, independent within the meaning of s.10(1) if in the exercise of that function they are subject neither to control nor pressure by any outside body. The requirement of s.10(1) is in our opinion fully met if, as is the case in Solomon Islands, they are subject to no direction by the legislature or the executive government as to the disposition of a particular case and to no form of pressure from outside bodies in the performance of their judicial functions. They are however, like the courts in all civilised countries subject to the same body of law as is every other citizen. The courts are not intended by s. 10(1) to be independent of the law but independent within it.

In Hinds v. The Queen [1977] A.C. 195; [1976] 1 All E.R. 353, in a judgment which is notable for its insistence on the independence of the judiciary in a constitution framed on the Westminster model, Lord Diplock, delivering the judgment of the majority of the Board, affirmed the power of the Parliament to prescribe a fixed punishment. His Lordship was in the course of considering how the power to determine the length and character of a sentence which imposes restrictions on the personal liberty of the defendant is distributed under the three heads of power, legislative, executive and judicial, which are implied in a constitution on the Westminster model. While affirming that the Parliament cannot, consistently with the basic principle of separation of powers, transfer the sentencing discretion from the judiciary to an executive body, his Lordship at p. 226 stated the powers of the Parliament in the following language which in my judgment is relevant to the present appeal:-

"In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted on all offenders found guilty of the defined offence, as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.

Thus Parliament, in the exercise of its legislative power, may make a law imposing limits on the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge's own assessment of the gravity of the offender's conduct in the particular circumstance of his case."

It follows that in our judgment Faiga's ground of appeal must also fail and we would dismiss all three appeals.

Pratt JA: The point which has given me by far the greatest concern in these appeals is that raised in the appeal of David Faiga. It is couched in the following terms:-

"That section 193 of the Penal Code is unconstitutional in that:-

(a) it contravenes section 10(1) of the Constitution of Solomon Islands in as far as:-

(1) it imposes the mandatory penalty of life imprisonment whereby it deprives the courts of the discretion to impose sentence in accordance with the circumstances of each case,

(2) in view of the mandatory penalty prescribed it deprives the Appellant of the right to fair hearing by an independent and impartial court in so far as the said hearing relates to the question of sentence."

Unlike the other two appellants, Faiga does not appeal specifically against conviction.

The Penal Code, like a considerable amount of other legislation in the Solomon Islands, had been in operation for a long period of time before the country gained independence on the 7th of July 1978. At the time of independence then the provision of mandatory life imprisonment on conviction for murder was already lawfully in force. It is not part of the appellant's case that the position was other than lawful prior to independence but he does say with the enactment of a Constitution, which clearly separates out the executive, legislative and judicial functions, the continued application of the mandatory life penalty amounts to a breach by Parliament into the area of the judiciary. Like many countries which were previously colonies or protectorates of Great Britain, the Solomon Islands independence was granted by way of Act and Order-in-Council to which the Constitution of the country was annexed as a Schedule. By virtue of Clause 5 of the Order-in-Council "the existing laws shall have effect on and after the appointed day as if they have been made in pursuance of the constitution and shall be construed with such modifications adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Solomon Islands Act 1978 and this Order." Other examples of similarly worded Constitutions and Orders-in-Council may be found for the Independent States of Jamaica, Fiji, Kiribati and Tuvalu. Although the machinery bringing the Independent State of Papua New Guinea into existence was quite different from the British Order-in-Council there are also many sections in that country's Constitution which have their counterpart in the constitutions of those countries I have already mentioned. All of these countries have specific provisions similar to those in the Solomon Islands Constitution dealing with basic human rights and freedoms, as well as the independence of the judiciary.

Section 10(1) of the Constitution reads as follows:-

"10(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing, within a reasonable time by an independent and impartial court established by law" (my emphasis)

Sub-section 2 goes on to deal with certain presumptions and the remainder of the sub-sections further enlarge the protection given the citizens under the law.

Mr Nori for the appellant goes on to develop his argument in the following manner. Any person accused of a crime is entitled to a fair hearing in the courts. When the court comes to the matter of sentence it is still obliged to give him a "fair hearing". In assessing penalty the Court is still obliged to act impartially and is entitled to act independently of any interference by the legislative arm or any other authority. He further argues that for the legislative arm to impose mandatory life imprisonment as penalty for murder makes a mockery of the "fair hearing" for in the first place there is a no hearing at all and secondly it cannot be fair because the legislature itself has taken over the role of judge as well as accuser. In a jurisdiction such as the Solomon Islands where no jury system yet operates it is said that the impartial exercise of discretion and the determination by a judge must be exercised just as much in assessing the penalty as in determining guilt or innocence.

Some little time was spent on examining some of the authorities which concerned themselves with the meaning of the term "fair hearing". I do not think, however, it is necessary to concern myself with these authorities as I have no doubts whatsoever that the term "fair hearing" as used in s. 10(1) of the Constitution encompasses both hearing on the trial and hearing and determination of any relevant material on the matter of sentence. The case of the Ministry of Transport v. Nicol [1980] NZCA 72; [1980] 1 N.Z.L.R. 436 must be restricted to the particular matter before the Court, namely, an interpretation of the phrase "at any time during the hearing" for the purposes of amendment under the particular Summary Proceedings Act in operation in New Zealand. In Wozniak v. Wozniak [1953] 1 All E.R. 1192 the Court of Appeal simply ruled that the trial or hearing of an action did not include the determination of any interlocutory application but was instead a "final determination of the matter", (p. 1193). It might well be said before one arrives at the final determination of any matter in the criminal jurisdiction it must certainly cover the question of penalty where a verdict of guilty has been returned. Greene v. Croome [1907] UKLawRpKQB 173; [1908] 1 K.B. 277 does not really advance the matter greatly one way or the other but another case of some antiquity Green v. Lord Penzance & Ors. (1881) VI A.C. 657 does contain a passage which again supports the contention that the hearing of a matter means, a hearing and determination of the whole matter and "includes not only the necessary antecedents, but also the necessary or proper consequences," (p. 669). Lord Selborne goes on to point out at p. 670 that in the type of hearing with which the House was concerned it was quite enough "to carry with it all the consequences, and to shew that the provision is applicable to all proceedings incident to and consequent upon a sentence and necessary for giving it due effect; all such proceedings, according to Your Lordship's recent decision in the case of Mackonochie v. Lord Penzance being proceedings in the same suit consequent upon and "incident to the power of pronouncing the sentence in the suit and flowing out of that sentence." Although their Lordships were concerned with a particular piece of legislation it is my opinion that their words are most apposite to the situation before this Court.

It was pointed out during submissions that after conviction and before sentence, the prosecutor still had a task to complete, namely, the presentation of an antecedent report and any other information which may be of assistance to the Court in arriving at a proper sentence. Of course the role of defence counsel is even more important in this respect, and either side may wish to call evidence. It may even be necessary to adjourn the hearing of the evidence being taken on the matter of sentence where, for example, a medical report or examination is required, or a welfare report has to be compiled.

If the judge in the case of murder is completely deprived of the opportunity of exercising any discretion at all, then surely, says appellant's counsel, the legislature has interfered with the judicial process not merely by directing the course which the discretion is to take but indeed removing the discretion completely.

As I have said I found some considerable degree of force in the submissions at the time. One of the justifications which has sometimes been put forward in favour of the mandatory life imprisonment for the crime of murder has been that there can be no two different kinds of murder. Murder is murder whichever way you look at it and the penalty must be the same. Of course this line of argument was greatly influenced by the fact that in most jurisdictions, if not all, where the mandatory life imprisonment now operates the previous penalty was execution which could be, in appropriate cases, reprieved by administrative act through the exercise of the Power of Mercy.

I myself normally practise in a jurisdiction where the most serious form of unlawful killing is subject to a maximum of life imprisonment. I can therefore say with some force that a great deal of material can and should be adduced on the hearing of the sentence so that a proper period can be arrived at. This is especially so in cases for example which have just fallen short of the legal requirement of provocation or self-defence in order to reduce the crime to manslaughter. In one other area of crime although there is a great deal of difficulty for legal theorists and logicians concerning legal culpability, a compromise solution has been found through the flexibility allowed under the maximum life provision. I refer to killings as a "pay-back" for sorcery deaths. I am speaking here more particularly of those cases not so much where the accused has put an end to the life of a sorcerer whom he believes has already been responsible for the death of some of his own family, but more particularly the accused who terminates the life of the sorcerer because of what he has done in the past and what he fears he might do in the future.

In a jury situation no doubt a jury will bring in an appropriate verdict to reflect its sympathy with the accused's position irrespective of the legal summing up by the trial judge and the juror's oath. I am not suggesting of course that the jury are deliberately dishonest. What I wish to emphasise is that in a jury system there can be greater flexibility. Of course it may again be said that all of these matters could be taken into account in the exercise of the power of mercy, that is in the exercise of executive power; but indeed that very argument emphasises the force of Mr Nori's submission that what is being done is to take away from the judiciary an area which rightfully theirs.

There is, however, one major stumbling block to Mr Nori's thesis. One cannot avoid taking as a foundation upon which everything else must be built the major premise that the legislature not only decides what matters shall amount to crimes, but must also decide concomitantly what punishment should be imposed for the commission of those crimes. I do not see how anyone can argue against that proposition. It is simply an exercise by Parliament of its obligation and right to "make laws for the peace, order and good government of Solomon Islands" (Constitution s. 59(1)).

In those matters where a discretion still vests in the trial judge there is no argument. In the vast majority of cases the Court may impose anything from the rising of the Court or good behaviour bond up to life imprisonment for manslaughter. It is when we come to the next stage, however, where Mr Nori meets his downfall. Perhaps the situation has best been put by the four Justices of the Supreme Court presided over by The Chief Justice, Mr Justice O'Dalaigh reported in Deaton v. The Attorney General & The Revenue Commissioners (1963) I.R. 170 where their honours say at p. 181:-

"It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence. It is also common ground that the legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties or a range of penalties."

Their Honours then go on to develop the argument that the selection of the actual penalty to be imposed on the particular perpetrator before the Court is a matter for the judicial arm where a choice is open to them. They expressed the conclusion in the following terms at p. 183:

"In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive as Parliament purport to do in s. 186 of the Customs Consolidation Act 1879."

Judicial power is exercised on matters of guilt or innocence and is also exercised, "in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the Executive Department of Government to carry into effect" (p. 184) citing Chief Justice Kennedy in the earlier decision of Lynham v. Butler (No.2) (1933) I.R. 74 at p. 99.

It had earlier been put to the Irish Court that the selection of penalty was not exclusively a judicial function and that it was competent for the legislature to prescribe a fixed penalty and thereby to select punishment for a particular case. To this argument the Court replied that there was "a clear distinction between a prescription of a fixed. penalty and a selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation. This is wholly different from the selection of the penalty being imposed in a particular case. It is here that the logic of the respondent's argument breaks down. The legislature does not prescribe a penalty to be imposed in an individual's case; it states the general rule, and the application of that rule is for the Court. If the general rule is enunciated in the form of a fixed penalty, then all citizens convicted of the offence must bear the same punishment."

Much of what the Court of Appeal had to say in Deaton's case was adopted and developed by their Lordships in the Privy Council, in the case of Hinds & Ors v. The Queen (1977).A.C.195 at pp 225-226; (1976) 1 All E.R. 353 at 370. In addition, Lord Diplock makes it quite clear that the courts must carefully observe the strict separation of powers set down in many constitutions of those countries which have gained independence under the British flag. Indeed Hinds' case originally came from Jamaica where s. 20(1) of their constitution is in exactly the same terms as s. 10(1) of the Solomon Islands Constitution. I might add here that I am not unfamiliar with the wording of the section as it bears a very close resemblance to s. 37(1)of the Papua New Guinea Constitution (although the existence of some other sections especially s.157 could arguably have some effect in the matter of interpretation).

I believe it is important to bear in mind two principles laid down by Lord Diplock in Hind's case pp. 211-212 p. 359) to the effect that firstly, those who drafted the various-constitutions were "nurtured in the tradition of that branch of the common law of England that is concerned with public law and are familiar in particular with the basic concept of separation of legislative, executive and judicial powers as it had been developed in the unwritten Constitution of the United Kingdom." Secondly, one must also bear in mind that where such constitutions have come into operation, the citizens of such countries are already living under a system of public law in which the basic concepts of the separation of functions is a part of their ordinary everyday life. Thus, it is that the new constitutions especially in unitary States are "evolutionary not revolutionary". It is also important to bear in mind that in interpreting the words written into a constitution one does not apply the ordinary canons of construction (Hind's case at p.212G) but rather a "generous interpretation avoiding what has been called 'the austerity of tabulated legalism' suitable to give to individuals-the full measure of .the fundamental rights and freedoms referred to". (Minister of Home Affairs v. Fisher [1979] UKPC 21; (1980) A.C 319 at 328H).

Lord Diplock goes on to say that as part of the law-making process, Parliament not only decides what would constitute a criminal offence but will "prescribe punishment to be inflicted on those persons who have been found guilty of that conduct by an independent and impartial court established by law". In so doing it may fix a particular punishment, for example, a minimum penalty or a mandatory life sentence or even execution (p. 226).

We were also referred by both counsel in these submissions to another leading authority in the area namely, Liyanage v. Reginam [1965] UKPC 1; (1967) A.C. 259; [1966] 1 All E.R. 650.That particular case is relevant to our present problem in that it underlines three aspects. First, the division of powers achieved under the Westminster model of constitution, second, the importance of upholding such division of powers, and third, the fact that Parliament may properly prescribe penalties in respect of those matters it decides which will become an offence, so long as the penalties are directed towards all citizens and not just particular or named citizens, or class of citizens.

In the ultimate therefore, I am forced to the conclusion that there cannot bid anything unconstitutional in the prescription by Parliament of mandatory life imprisonment in respect of the offence for which the present appellant has been convicted. The establishment of the penalty is essentially a legislative matter and not a judicial one. Of course this Court is not bound by the decisions of any foreign court (Sch. 3 C1. 4) but nevertheless under s. 76 of the Constitution the country recognises the principles and rules of common law and equity (which I take to be, of England), and the doctrine of judicial precedent. Thus what the Privy Council says about the underlying principles of the common law in relation to an unwritten constitution as well as what it says in respect to those constitutions in which the wording is exactly the same as our own is obviously highly persuasive indeed.

At the time the Constitution came into effect all other laws were made subject to it, and the pre-existing laws continued with any necessary modification, etc. as set down in Order-in-Council Cl.5(1). In the exercise of its undoubted powers to prescribe penalties the Parliament has never given a discretion to the judiciary in the matter of penalty for murder and this has been continued under the Constitution. I can see nothing contained in s. 10(1) of the Constitution or elsewhere, which indicates that some modification or qualification was intended to this arm of Parliamentary power. It may be otherwise if the Parliament were to take away a discretion already vested in the judiciary at the time of independence (for example by imposing-mandatory life imprisonment for some other crimes of violence presently carrying say fourteen years life as a maximum). However, that is a matter which will have to be dealt with if and when it ever occurs.

I would therefore dismiss this appeal by the prisoner, David Faiga.

There is not a great deal which I wish to add in relation to the appeals by the remaining two appellants who submit that hey have been wrongly convicted and have asked for either a quashing of the conviction or a re-trial. I have had the advantage of reading the draft judgment of Mr Justice Connolly and I respectfully agree with what his Honour has said in relation to the facts of the case involving these two appellants as well as to the conclusions which he has drawn, and principles adopted from the Privy Council in Caldeira v. Gray [1936] All E.R. 540. The witness Eroi refers to certain incidents occurring first on one side of the truck and then on the other side. Counsel sought to lay a great deal of weight on this apparent conflict, sufficient indeed to be entirely destructive of the witness's conduct. However, the learned trial judge was obviously aware of the problem and I myself cannot see any reason for interfering with his Honour's conclusions, especially as it is in the area of creditworthiness.

One comment I do make here, as a result of practising for many years in a jurisdiction when the only record of a case comes, from the trial judge's notes. Whilst it is permissible as a general rule to take down evidence-in-chief in narrative form, it is much safer to take down cross-examination in the form of question and answer as near as practicable to that asked during the trial. Had this been done in the present matter with the evidence of Eroi it is quite possible that the apparent conflict would disappear. When dealing with an ordinary villager of minimal contact with introduced western concepts of evidence and procedure especially as applied in the superior courts very often a knowledge of the question is essential to a proper understanding of the nature and context of the answer. Though leading questions are permissible in cross-examination the sometimes heavy reliance on this form of advocacy on such a witness can do more harm than good to the client's cause if the tribunal feels that counsel is concentrating his efforts on raising a dust storm. In the present circumstances no one is the wiser one way or the other because of the form of note-taking.

I agree that these appeals of Richard Gerea and Ben Ratu Karai should be dismissed.