Director of Public Prosecutions v Fufue; Fafeloa v Queen [1989] SBCA 5; CA-CRAC 3 & 4 of 1988 (1 February 1989)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Criminal Appeal Case Nos. 3 and 4 of 1988

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

AND:

JOHN FUFUE
Respondent

AND BETWEEN:

NELSON FAFELOA
Appellant

AND:

THE QUEEN
Respondent

Solomon Islands Court of Appeal

(Connolly P, Kapi J and Savage J.A)

Criminal Appeal Case Nos. 3 and 4 of 1988

JUDGMENT - SAVAGE J. A.

Delivered the first day of February 1989

On 27th June, 1988 in the High Court at Honiara an information was presented by the Director of Public Prosecutions charging four persons with three separate counts of murder. The four persons were Nelson Fafeloa, John Futoa, John Fufue and Eddie Ramo. At the start of the trial the Director of Public Prosecutions entered a nolle prosequi against Eddie Ramo and he was discharged. The trial then proceeded against the remaining three accused. It concluded on 1st July and the learned Chief Justice reserved his decision. In a judgment delivered on 4th July, 1988 he convicted Fafeloa and Futoa on all three counts but acquitted Fufue. The Director of Public Prosecutions has appealed against the verdict of acquittal in terms of s. 20A(i)(a) of the Court of Appeal Act 1978 as inserted in the Act by s. 2 of the Court of Appeal Amendment Act 1987 and Nelson Fafeloa has appealed against his conviction. We record in passing that we were told from the Bar that Futoa, the other person convicted, had since the trial committed suicide.

The grounds of the appeal by the Director of Public Prosecutions appeared to the Court to be matters of fact or, perhaps, matters of mixed facts and law, and in those circumstances not to come within s. 20A(i)(a). The court did not, however, rule upon the question as the Director of Public Prosecutions asked for leave to withdraw his appeal. The appeal was accordingly dismissed.

The grounds of appeal by the appellant Fafeloa were given in his notice of appeal as twofold but before referring to them it is convenient to mention another matter and to give brief outline of the circumstances surrounding the killings which led to these charges. It has already been noted that the Director of Public Prosecutions entered a nolle prosequi against; Eddie Ramo he was then called as a Crown witness against the other accused. Indeed without Ramo’s evidence there could not possibly have been convictions of the two who were convicted. The Chief Justice at the beginning of his judgment recorded that the Court had been told that no decision had been made as to whether or not Ramo would later be charged again and required to face trial. In those circumstances it was clear that Ramo could not be compelled to answer questions that might incriminate him and we were told, and the record shows, that he was so warned. It is also clear that in those circumstances he was a witness who had a great deal to gain by giving evidence that was helpful to the Crown case. The Chief Justice recognised this and said at the very outset of his judgment that he, Ramo, "is a witness that the Court will not only treat as an accomplice but also as a man who undoubtedly has good reason to hope that he may benefit if his evidence results in the conviction of these men"

The circumstances surrounding the killings are as follows. The three victims were all members of one family group. They lived in a small house a short distance from the centre of Barana Village, Mt. Austen in Guadalcanal. On the evening of 6th February, 1988 they had been as a family to the village church for a service. Later when they went to bed that night Suegolo, the victim in count 1, her daughter Kurilio, the victim in count 2, and their thirteen year old son Simon slept on an open-sided verandah. In the only room in the house there was another daughter of Suegolo named Lucia and her husband Paul Saogilo, the victim in count 3. There was also there a small baby of Kurilio. Some time later that night four people, at least three of whom were armed, and led by Ramo rushed on to the verandah and attacked the sleeping family. Terrible injuries were inflicted upon Suegolo, Kurilio was stabbed in the chest and Simon was struck on the head and back so that he lost consciousness. Paul Saogilo came out of the room to help his attacked relations but was himself attacked and suffered grave stab and cut wounds. In the result in a short time Suegolo, Kurilio and Paul were dead. Simon though left unconscious recovered. Paul’s wife, Lucia, and Kurilio’s baby survived unhurt. The motive for this terrible and murderous attack upon this family is not, perhaps, clear. There was evidence that the three accused are from the Kwaio people and that in 1986 there had been trouble between the Kwaio people and the people of Tamboko. Compensation had been paid but it had, apparently been regarded as inadequate by the Kwaio. Further at the time of the killing two young Kwaio men had been threatening the deceased family and others in Barana over alleged thefts from the garden of one Faleusia, who used to live in Barana and whose wife is from the Kwaio.

The Crown case against the three accused was, in effect, that they were all from the Kwaio, had been together before the killing and again after it, were in the locality at the relevant time and that two of them, Fafeloa and Futoa had been identified by Ramo as participating in the attack. So far as Fufue was concerned the Crown said that though Ramo had not identified him it was a logical inference that he was the third person because of his association with the other two. The Chief Justice rejected this last contention characterising it as being no more than alleging guilt by association. He therefore acquitted Fufue.

I now set out, briefly, Ramo’s account, so far as is necessary, of what occurred that night. It is clear that Ramo knew the family; indeed, he claimed Kurilio was a girlfriend of his thought no other evidence suggested that this was the case and one witness Moses -Akoalabae expressed the opinion that Kurilio did not like Eddie. Ramo said he arranged to meet Kurilio that night outside the house. He said that during the night he went past the house and called out to Simon asking him to go with him to the house at which he was staying. It was referred to as the Forestry House and is near Barana. Simon refused and Ramo said he then started to go back to the Forestry House. On the main road near his house he met a man, whom he saw with his torch, and whom he identified as the accused Futoa. Futoa asked him for an axe, saying he needed it to kill a pig; Ramo got one and gave it to him. Later he said he again went to the house of the murdered family but walked past it to the church. While waiting there he saw two men. He shone his torch, not on their faces but on the ground. He said he recognised Fuloa again but did not then know the other man but he identified him later as being Fafeloa. He went again to the house, saw someone in a nearby building and thought it was the girl’s brother and so he left. He said that as he walked up the track three men jumped out of the darkness. They asked him for the Sipiriano house, (Sipiriano being Suegolo’s husband). They asked him to go along with them and they threatened to kill him if he did not. They had a knife, an axe and a spear. Two of the men were Futoa and Fafeloa but the third man he could not identify though he did describe him quite fully. These men, according to Ramo, said they were going to kill someone at the house and, indeed, said they were going to kill the family. When they got to the house Ramo said he shone the torch to arouse those who were asleep and to warn them. He said his reason for going with them to the house was to save his girl friend. However, as he shone the torch one of the men attacked the woman. He described what then happened and how he ran away to save his life as he was afraid the three men might attack him.

The Chief Justice in considering Ramo’s evidence records a number of matters he took into account in deciding what weight could be put upon it. As I have already noted he said he treated him as an accomplice and as a person with a very good reason to hope he might benefit from giving evidence helpful to the Crown case; he added that Ramo seemed to have little appreciation of the situation or whether he was likely to be tried later or not. He recorded that there was no evidence which could be regarded as corroboration of Ramo’s evidence though there was some that supported him in some minor respects. He went on to refer expressly to some aspects of the story which appeared improbable, such as Ramo’s late recruitment into the group by the other three. He expressly found that Ramo had lied about his own involvement and had given an account of his participation which was designed falsely to exculpate him. He then postulated the question whether in those circumstances the Court could rely on any of his evidence. He concluded that he could and found expressly that he was satisfied beyond reasonable doubt that Fafeloa and Futoa were two of the men, as described by Ramo. He referred to the dangers in identification evidence and says he took that into account in reaching the decision he did. At this point it is worth noting that the Chief Justice also took into account, as far as Fafeloa was concerned, the evidence he gave at the trial. Futoa did not give evidence. The Chief Justice said he was satisfied beyond any doubt that Fafeloa’s account in evidence of what he did that night was untrue.

The outline of the case just given and the Chief Justice’s views upon the evidence show quite clearly that stands or falls upon the weight given to the evidence of Ramo; there is no other sufficient evidence which could, without Ramo’s testimony, support a conviction.

I now return to the grounds of appeal urged by Mr. Radclyffe.

They were stated in the notice of appeal as follows:-

1. That the learned Chief Justice erred in law in that having held that the prosecution witness Eddie Ramo lied about his own involvement, he accepted Ramo’s evidence of identification of the appellant.

2. That the learned Chief Justice erred in finding that Ramo could be credit worthy as a witness in view of the fact that he concluded that Ramo was lying about his own involvement.

Mr. Radclyffe in argument accepted that there were no authorities to which he could refer which supported the proposition that the point raised in the first ground was a question of law. I do not think it is. In my view it is a factual matter, a question of credibility. Likewise the second ground a factual matter involving a question of credibility. Section 22(1) of the Court of Appeal Act 1978 is as follows:-

"22 (1) The Court of Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal."

It follows that so far as this appeal is concerned it must be shown that the verdict is either unreasonable or cannot be supported having regard to the evidence or that it should be set aside on some other ground as a miscarriage of justice. I did not understand that Mr. Radclyffe was submitting that the verdict was unreasonable or could not be supported on the evidence but that there was a miscarriage of justice in that the verdict was unsafe or unsatisfactory for the reasons contained in the two grounds set out above.

In his thorough and effective submissions Mr. Radclyffe urged every point that could be made. In particular he emphasised that the Crown case stood or fell on Ramo’s evidence, an accomplice whose evidence was uncorroborated and whom the Chief Justice had found was a liar. He criticised the identification evidence but I do not think there is as much weight in that point as in some others. Though the initial identification was by torch light it is clear that Ramo was with the other three persons in the party for some time and it was a moonlight night. Mr. Radclyffe pointed to a number of improbabilities in Ramo’s story such as that the appellant and the other persons in the party, who had been in the some days, should at the last moment have seized or recruited a stranger and compelled him to join them in the enterprise.

I have considered these matters carefully and at length but in the end I have concluded that the appeal must be dismissed. It is clear that the learned Chief Justice applied the proper tests so far as the law is concerned. He treated Ramo as an accomplice; he recognised the dangers of acting on an accomplice’s evidence that was not corroborated. He warned himself of the dangers relating to the identification evidence. He referred expressly to a number of the factual matters that Mr. Radclyffe has canvassed before us. And in the end he made a carefully considered finding as to Ramo’s credibility; he believed part of his evidence and disbelieved part. As the decider of the facts that is what he was entitled to do; indeed, if that was the conclusion he reached it was his duty so to do. In jurisdictions where juries decide the facts they are always told by the Judge that they may believe a witness or disbelieve him, wholly or in part, and that it is a matter for them. An Appeal Court may not reject the jury’s verdict because it thinks it would or might have decided otherwise. It is a matter for the jury and here it is a matter for the Judge. He Saw and heard the witnesses, which we did not, and he clearly applied himself to the factual issues with care and thoroughness. I am not prepared to substitute my opinion upon the credibility of Ramo for his.

Accordingly I would have dismissed this appeal and I dissented from the judgment of the Court.

R. C. SAVAGE J. A