Sutarake v Reginam [1994] SBCA 10; CA-CRAC 6 of 1994 (29 June 1994)

IN THE SOLOMON ISLANDS COURT OF APPEAL
CRIMINAL JURISDICTION
Criminal Appeal No.6 of 1994

BETWEEN:

MARTIN SUTARAKE
Appellant

AND:

REGINAM
Respondent

Before:
Connolly P.
Kapi J.A.
McPherson J.A.

Delivered the 29th day of June 1994

JUDGMENT OF THE COURT

The appellant was tried and found guilty of murdering Salome Oinairi at Poinaho Village, Guadalcanal Province, on 30 March 1992. The evidence was that her body was found that day, probably at about 4 p.m., in the bush near the road leading to the village garden. The medical report was that she had sustained two large deep cuts to the neck, which had probably been inflicted by a bush knife, and four other stab wounds probably from a long thin knife. Either of the first two cuts could have killed her, but the opinion was that the deceased had probably met her death through suffocation resulting from severing of the larynx. The four stab wounds were distributed among the left upper arm, left inguinal region, middle of the chest and the right side of the neck. The appearance of the wounds prompted the Chief Justice to describe them as having been inflicted viciously.

Suspicion seems quickly to have fallen on the appellant, who was first questioned at the Marau police station on the following day. On 21 December 1991 he took part in a formal interview at the Central Police Station, Honiara. Then and throughout the trial, at which he gave evidence, he denied responsibility for the death of Salome.

The prosecution case against the appellant, which was based on the evidence of some 16 or 17 witnesses, was entirely circumstantial. Indeed, it is one of the grounds of appeal that there was no eye-witness to the killing. Another is that the murder weapon was never produced at the trial. The circumstantial evidence consisted essentially of the testimony of witnesses who saw the appellant near the scene of the crime at about the time it must have been committed; that he could easily have disposed of the murder weapon in a nearby swamp; that he later gave conflicting explanations of a cut on his forehead, which was seen to be bleeding shortly after Salome’s death; and that he acted in a generally suspicious manner after the event.

The prosecution also adduced evidence suggesting a motive on his part for the killing, in that he had pestered the deceased, who was his sister, to give him money and to have sexual intercourse with him. At the time of her death she was proved to have had with her a purse containing some $60 to $70, which was missing afterwards; and there was evidence that the appellant had previously used physical violence upon her and uttered threats that he would kill her.

The appellant and the deceased occupied separate houses in the village not far from one another. The appellant lived alone, having separated from his wife Naomi some time before the killing. The deceased, who seems to have been a widow with children, had done some cooking for the appellant that was not to his satisfaction. For that and other reasons he had assaulted her on several occasions in 1991 and 1992. Admissible evidence to that effect was given at the trial by Fred Mae, who recalled hearing arguments between them on two occasions in February and March 1992. After those arguments were overheard the deceased sought refuge at Mae’s home, where she slept the night. Mae also recalled an occasion in 1991 when he witnessed an incident in which the appellant punched the deceased and then, as she lay on the ground, stood over her holding a fishing spear which he was threatening to drive into her stomach.

On the day of the killing the movements of the deceased were accounted for by several witnesses. She had in the morning first of all visited the clinic at Marau with her child and then returned to Poinaho village where she lived. At about 12.30 or 1.00 p.m. she left to work in the garden, which was some distance away. According to her daughter Sylvia Houma (PW6) the deceased took with her a basket, a purse containing the money·, a bush knife, and a smoking pipe. Sylvia described the knife as being about 2ft long, but filed so that it was narrow with a sharp point at the end. It was this that the Crown suggested was the murder weapon. It resembled the kind of implement that, according to the medical report, would have been used to inflict wounds like those sustained by the deceased.

On her way along the road to the garden the deceased met Clement (or it may be Clementine) Pukere (PW7), who saw she had with her a basket, her knife, and smoking pipe. Her intention, she told Clement(ine) was to go to the garden. Clement(ine) said that a little later - “not long time” were the words used - the appellant also passed her by, going in the opposite direction, which was the same direction as the deceased. The time then, according to Clement(ine), was “late morning”. The deceased was not seen alive again by any of the prosecution witnesses at the trial.

The appellant had started the day by visiting the Manikilaku clinic, where he was treated by Aimmy Enock (PW2) for scratches on his knee. He was then called over to the police station in connection with another matter. After that, he went home, arriving there at about 2.00 p.m., when he showered and washed his clothes. That was what the appellant said in his evidence. Others however claimed to have seen him showering and washing at a time later on that day. Daniel Oreimara (PW9), who is the appellant’s brother, said that he and his wife were gathering potato vines between 1.00 and 2.00 p.m. at a place near where the deceased’s body was later found. They heard someone sneezing in the bush nearby. Daniel went to find out who it was, and saw the appellant, who quickly turned and ran away. Daniel saw the appellant was wearing a shirt. Being brothers, he was surprised when the appellant ran away, which had never happened before. When seen, the appellant was coming along a bush track or path which led to the place where the deceased was later found dead.

Athenasius Oneimar a (PW10) con firmed seeing the appellant near his house at about 2.00 p.m. The appellant could not have come along the road past the house, which meant he must have arrived there along the same bush track on which Daniel had seen him going a little earlier. Athenasius remarked that the appellant looked “restless and worried” and he noticed that he had his shirt tied round his head.

The prosecution suggested that the appellant had his shirt tied in that way to cover a wound in his forehead which, it was argued, he had sustained in a struggle with the deceased when he killed her with her own knife. Several other witnesses testified to seeing the shirt around the appellant’s head. There was uncontested evidence that the appellant had gone back to work in the garden at 3.00 p.m. or later. Bai Panoisire (PW14) said that the appellant took his place among those working in the garden. He saw blood coming down the right side of the appellant’s face from the cut and asked him what had happened. The appellant said that Calisto’s boot had hit him there in a course of a soccer match in which he had taken part on the previous day. He told Bai that, after showering, he had combed his hair; the comb had poked the wound and started it bleeding again. Asked why he had not had it dressed at the clinic that morning, the appellant mumbled something in reply which Bai could not hear. It was shortly after they had finished working there that Bai found the body of the deceased on the track going home.

The presence of a bleeding cut on the appellant’s forehead on the afternoon of 30 March 1992 went to support the theory that the appellant had been involved in a physical struggle with the deceased woman in which she had inflicted that wound on him, possibly with her own bush knife before he took it from her and killed her with it. There was evidence showing that he sustained the cut later that day. According to Aimmy Enock (PW2) the cut was not there when he attended to the appellant at the Manikilaku clinic in the morning. All he did on that occasion was to treat the appellant for some scratches on his knee. Police Officer Jerry Muahi (PW3) also confirmed there was no wound on the appellant’s face when he spoke to him on the morning of 30 March 1992. However, when he questioned him on the following day, the appellant was wearing a calico strip around his head. He asked the appellant to remove it, and saw what he described in evidence as a fresh slanting cut above his right eye, which had not been there the day before. He also noticed that the appellant’s hand was swollen.

The appellant gave various accounts of how he came to have the cut on his head. As mentioned, his original explanation was that he had sustained it while playing soccer the previous day (29 March 1992). He said the spikes of the boot of an opposing player had come into contact with his face. At first he said it was Calisto Manekera’s boot; but in evidence at the trial he claimed it was Gabriel Rakasi’s boot that had done the damage. Both of those persons (PW4 and PW5) gave evidence that nothing like that had happened in the course of the soccer match. What the appellant first said about it was not necessarily inconsistent with what he had told Bai about the comb later puncturing the wound; but when he went into the witness box at the trial, he altered his account and said that he had hit his face with a hoe while working in the garden, which was what set it bleeding again. He also said the cut was on the left side of his face, whereas others said it was on the right.

These inconsistencies in the appellant’s evidence suggest that he may have realised that the presence of the fresh cut was a tell-tale sign that needed to be explained away. Whether or not he appreciated that it was potentially incriminating, he failed to offer a satisfactory explanation for it. The learned Chief Justice was plainly entitled to take that view of the matter. Apart from what the appellant had said, there was nothing in the evidence to suggest that the appellant had been involved in any other accident or violent encounter on 30 March 1992 in which he might have sustained the cut. The inference was open that he received it in the course of a violent quarrel with the deceased ending in her death.

The matter of the cut was therefore something that was relevant not only in assessing the credibility of the appellant, whose evidence the Chief Justice rejected, but also as a circumstance tending to prove the guilt of the appellant. Before he could be found guilty of the murder, it was necessary for the prosecution to show beyond reasonable doubt that there was on the evidence no reasonable hypothesis consistent with innocence. See D.P.P. v. Togiabae (C.A. 5 of 1986. March 30, 1987. White P., Connolly, Kapi JJ.A.) To state it another way, there had to be no reasonable explanation of the evidence except that it was the appellant who killed the deceased in circumstances amounting to murder.

The learned Chief Justice found that the Crown had discharged the burden of proving this. We respectfully consider that he was justified in reaching that conclusion. The Crown proved at the trial that the appellant had opportunity, means, and motive for killing the deceased. The inference that he might have sustained the cut on his forehead in a struggle with the deceased was an additional circumstance capable of directly linking him to the crime. No other hypothesis or explanation for her death was suggested by anything said by the appellant himself. No one else seems to have had a motive for killing her. Prosecution witnesses saw no one else go near the place where the deceased met her death. We are satisfied that the appellant was rightly convicted.

We should not, however, part from the case without mentioning our concern at the fact that some inadmissible evidence found its way into the proceedings at the trial. There were two categories of such evidence. First, there was hearsay consisting, principally of what Sylvia Houma said about the appellant hitting her mother in March 1992. Some of what was said by Jimmy Asitaha. (PW1) on the same subject is also open to objection as hearsay. It turned out that at the time of that incident Sylvia was in Honiara and so could not have been speaking of something she saw or heard herself. In part the reason why she was allowed to say what she did is that at first no one at the trial realised that she was simply recounting what her mother had told her. Still, it is important to ensure that evidence like that is kept out, or, if it starts to be given, that it is quickly stopped. Fortunately, in this case there is cogent evidence from Fred Mae, based on his own observation and knowledge, that the appellant had used threats and violence against the deceased.

The second category of evidence is, in away, more serious. It consisted of a statement by Police Officer Muahi that what he was questioning the appellant about on the morning of the killing was an earlier assault committed on his wife Naomi. The matter was taken further in cross-examination when Muahi was asked about it and said that the appellant was later convicted and served six months for this offence. In his evidence in chief and cross- examination at the trial, the appellant was also asked about his assaults on his wife Naomi and gave his account of what had gone on between them.

All of that evidence was plainly inadmissible. It went to show no more then that the appellant was a person of violent tendencies or character. It is only exceptionally that evidence of other criminal acts or discreditable behaviour on other occasions may be introduced at the trial of a person charged with a quite separate criminal offence involving a different victim. That is the common law rule. See Makin v. Attorney-General for New South Wales [1894] A.C. 57. The underlying reason is that it tends to prejudice the fair trial of an accused person. In addition, the rule laid down by the Criminal Evidence Act 1898, is that “a person who gives evidence at the trial of an offence with which he is charged may (subject to specified exceptions not relevant here) not be asked or required to answer any question tending to show that he had committed, or been convicted of, or been charged with, any other offence. See para. (f) of the proviso to s.1 of the Act, which applies by virtue of Order No.1 230 of 1909, made under the Evidence (Colonial Statutes) Act 1907 and confirmed to extend to Solomon Islands by Order No. 1418 of 1922. Both orders are, reprinted in Statutory Instruments applicable to the British Solomon Islands Protectorate, 1971, at 331-332.

In the present case both of these rules were overlooked at the trial by all concerned. Moreover, it appears that the Chief Justice attached some weight to the appellant’s conviction for assaulting Naomi. Because of it, he said it was “no surprise” to find evidence that showed that previous assaults on the deceased by the accused were of a serious nature. However, we consider that his reference to it did not in any sense form a critical part of the reasoning that led him to conclude that the appellant was guilty. There was other evidence, particularly in what was said by Fred Mae, that proved that the appellant had previously assaulted the deceased and that he had done so in a life threatening way. The evidence was not objected to at the trial and its admission has not been made a ground of appeal before us.

Quite apart from these matters, the case against the appellant was a cogent and convincing one. There is no doubt that he would rightly and properly have been found guilty of murdering Salome even if the evidence referred to had not been admitted, and if questions had not been asked in contravention of the Criminal Evidence Act 1898 about the assaults on his wife. That is a conclusion we have reached through independent scrutiny of the evidence properly admitted at the trial.

In those circumstances the case becomes one in which this Court is called on to consider exercising the discretion conferred by the proviso to Rule 22(1) of the Court of Appeal Ordinance 1978: cf. Ipao v. R. [1982] S.I.L.R. 128, at 131-132. The discretion should, of course, not be exercised readily or automatically but cautiously and exceptionally. Nevertheless, for the reasons we have given, we consider that no substantial miscarriage of justice has occurred in this case and that the conviction should be allowed to stand. The result would no doubt have been different if the trial had been by jury, and not by a judge alone giving reasons for his decision.

It is necessary to mention two further grounds in the notice of appeal. One is that “one of the boys was forced to witness against me”; the other that “three young people went with me on that day did not witness for me”. No evidence was placed before the Court of Appeal to support either of these grounds. So far as appears, they were both matters that would and ought, if there had been any substance in them, to have been raised at the trial. From what we can gather now, the matter referred to in the first of these two grounds of appeal refers to prosecution evidence which seems, in any event, to have done little to advance the Crown case against the appellant. It follows that he cannot have been prejudiced by it even if there was any substance in this ground of appeal. As to the other ground, nothing was put before us to identify what is was that the three witnesses might have said, or why they were not called to give evidence at the trial. No basis is laid for upsetting the conviction on this ground.

In our opinion the appeal against conviction should be dismissed.

BY THE COURT
(B.H. McPherson J.A.)