Osifelo v Reginam [1995] SBCA 6; CA-CRAC 005 of 1993 (12 October 1995)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

BETWEEN:

FRED OSIFELO
First Appellant

PETER FITALI
Second Appellant

GEGEO MAEFASIA
Third Appellant

AND:

REGINAM
Respondent

CORAM: KIRBY P, SAVAGE JA, PALMER JA.

HEARING: TUESDAY 29 AUGUST 1995
JUDGMENT: THURSDAY 12 OCTOBER 1995

JUDGMENT

SAVAGE JA and PALMER JA.: The three appellants, Fred Osifelo, Peter Fitali and Gegeo Maefasia, were convicted in the High Court at Honiara on the 15 December 1993 on an information laid by the Director of Public Prosecutions that on the 29 December 1990 they murdered a man named Toloaeno Basikona at Ata’a sea in Malaita Province. All three now appeal against conviction. It should be added at this point that the information laid by the Director of Public Prosecutions contained a fourth person. He was acquitted, as is noted later in this judgment, by the learned Chief Justice in the judgment he delivered on the 15 December 1993.

The appeal was first called before this Court at its sittings in March 1995. Due to the sickness of one of the counsel the case was adjourned to the Saturday of that week. On the Saturday one of the counsel, Mr Wasiraro, counsel for the appellant Maefasia, failed to appear and the hearing was adjourned to the next sitting. On the day allocated at the present sittings Mr Wasiraro again failed to appear but it was indicated that he would arrive late in the afternoon. The Court had a very full list for the sitting and in the light of the delays that had already occurred in the hearing of this appeal it resolved to proceed with the hearing in respect of the other two appellants and to make a special time to hear Mr Wasiraro for the appellant Maefasio at 5 p.m. that day. In fact the Court did not sit until 5.30 p.m. as Mr Wasiraro did not arrive until then, but it then continued sitting until counsel had completed their submissions, which was about 7.30 p.m. This history of the matter and of the course taken is recorded to show why the appeals were heard in two parts and to express the Court’s strong disapproval of what happened so far as the hearings are concerned. It is deplorable that this should have happened; the prisoners, whose liberty and future is at stake, are treated with scant regard; other counsel have their work programmes disrupted, and the Court is unable to hear in good time the appeals before it. The Court sits relatively infrequently and if cases have to be adjourned considerable delays ensue. It may also be noted that assembling the Court of Appeal involves considerable expense to the Government and people of Solomon Islands, so disruptions to its programme are extremely wasteful of limited resources. The Court will not tolerate this in the future. We make it plain that in our view solicitors and counsel who are likely to be involved in a case on appeal should keep in regular contact with the Registrar and take steps to ensure that they are available at the fixed times.

We now turn to the appeal itself. The hearing was spread over 36 days during the months of July, August, September and October 1993 and the record covers some 650 pages, but for the purposes of the appeal we can state the factual background very briefly. The prosecution case was that the appellant Fitali went to the village of the deceased man Basikona and asked him to go with him, Fitali, to Ata’a. He explained that they should take two dug-out canoes which they would sell and use the proceeds for Christmas and New Year celebrations and to purchase tobacco and other things. Basikona went with Fitali. Arrangements had earlier been made with a man named John Itea to pick up some other men, who included the other two accused Osifelo and Maefasia together with two others, and take them in a canoe to which he had access and which was powered with an outboard motor, to a point where they would meet Fitali and Basikona in their dug-outs, that is, paddled canoes. The canoes met as they approached an area of sea called the Fousiu Passage and Itea’s canoe towed the two dug-out canoes, with Fitali and Basikona in them, out to sea. When some distance out Basikona was forced into the Itea canoe and killed in a most barbaric manner. A bush knife was used; his hands were hacked off, his neck was cut and his head chopped off. His body was later put into a bag containing stones which they had brought with them, and dropped into the sea. Fitali had later on the same day, having returned to land, told others that they had sunk at Fousiu and though he had looked for Basikona he had not found him and he was missing. The next day a police officer, having heard a man was missing, saw Fitali and asked how the incident happened. Fitali said that when he and Basikona got to the Fousiu entrance the canoe they were in, the bigger of the two, was struck by a huge wave. It capsized and, he said, Basikona tried to swim ashore; he, Fitali, was able to get back to the canoe and to get into it. He heard Basikona shout but was unable to help him. The police officer for a number of reasons including the facts that the canoe was a big canoe and, in his assessment, one old man would not have been able to right it on his own and that it still contained some of Fitali’s personal belongings, did not believe him.

Police investigations resulted in some six men being charged with murder. At the taking of the depositions two men were discharged but the three appellants and John Itea were committed for trial. At the trial the three appellants were convicted but John Itea was found not guilty.

The evidence at the trial by independent witnesses covered the matters relating to Fitali meeting Basikona; his arranging to take two canoes to sell and paddling off together; his account, when he got back to land, of what had happened; the police officer’s interview with Fitali and his story of the huge wave; and two witnesses, related to the appellant Maefasia, who recounted how he had told them of his taking part in the killing of the deceased. Thereafter there was no independent evidence as to what happened but the Crown relied upon the statements made by the three appellants to police officers during the course of their investigations. It is sufficient to say that once the statements made to the police were admitted there was sufficient evidence, if accepted by the Court, to support the conviction of each of the three accused. It should be added that all three challenged the admissibility of their statements and the learned Chief Justice heard a considerable body of evidence on this issue in relation to each accused in a voir dire which together with counsel’s submissions covered some 250 pages of record. He then considered the matter for some weeks and gave a lengthy, careful and detailed ruling in which he dealt with all the grounds raised by each appellant separately in respect of his caution statement. He ruled that the statements should all be admitted.

None of the appellants gave evidence in the trial itself though each had given evidence on the voir dire. After counsel had made their submissions the Court reserved its decision. In his judgment delivered on the 15 December 1993 the learned Chief Justice considered and rehearsed the evidence applicable to each accused separately and as already stated convicted the three appellants and acquitted the fourth accused. As the learned Chief Justice clearly recognised, for he remarked upon it more than once, the substance of the case against each appellant depended upon the confessional, or as they are generally called in this country, the caution statements each had made. It will thus be clear that the admissibility of the caution statements goes to the heart of each appellant’s appeal and, indeed, the main thrust of each appellant’s appeal was the issue of the caution statement and, more particularly, the question of its voluntariness.

We turn now to consider the individual appeals.

Osifelo:

His original notice of appeal contained some 13 grounds which, in substance, can be reduced to three. They were expanded upon by counsel in her written and oral submissions. In addition at the hearing she added a further submission based upon s.7 of the Constitution.

The first matter raised, and it covered two or three of the appeal points, was in effect that the learned Chief Justice had misdirected himself by considering and determining the question of guilt at the stage of the trial when he should have considered only question of admissibility of the caution statement. Mrs Samuel referred to a passage in the ruling on the voir dire which she submitted showed that the learned Chief Justice was clearly considering the question of guilt. We do not think this is so. We think the learned Chief Justice was emphasizing the importance of admissions made by an accused when considering the matter of admissibility and this is made clear when at the end of his ruling he stated expressly that on the voir dire he had limited his consideration to the issue of admissibility.

The second matter, which is the principal ground of the appeal and which covers a number of the original points, is concerned with the admissibility of the caution statement made by the appellant. The matters urged by the appellant were, in effect, that the statement was not made voluntarily and therefore was not admissible in that it had been induced by force and threats and that he was interrogated over a long period without rest, food, the opportunity to smoke or use betel nut. Further, though it was not expressly so enunciated, the appellant submitted the judge should have excluded the caution statement as a matter of discretion. The learned Chief Justice dealt with these points fully in his ruling on the voir dire and we see no reason to disagree with his conclusions. He rejected the appellant’s allegation in respect of force and threats, the denial of food, cigarettes and so forth, and made it clear he believed the police witnesses and disbelieved the appellant, giving examples of things said by the appellant which satisfied him that he was not telling the truth. He said he considered the evidence of the two principal police officers involved had the ring of truth about it. He accepted that the appellant had been generally interrogated before the actual interview stated which was at 0436 hours on the 11 August 1992 but thereafter was treated normally like other accused. An examination of the record of the evidence given by the police officers shows that Osifelo was arrested at his village some distance from Atori on the 4 August 1992. He was taken to Atori and then the next day to Auki, and on the 6th August taken before a Magistrate. He had been held in the pantry room outside the charge office at Auki police station thereafter. At about 4 p.m. on the 10 August Detective Constable Rifasia told him that he would interview him later that day and at 11.20 p.m. he took him to the CID office. He had tea, biscuits and a tin of Taiyo. There was general talk and Osifelo also smoked and chewed betel nut. Amongst other general stories Osifelo apparently talked about some transactions relating to shells he had with a man from PNG who worked for the Shell company at Honiara. Present at the interview was also Detective Senior Sergeant Angisia and he said that at some stage Det. Const. Rifasia asked Osifelo about his involvement in the killing of Basikona though at that point the recording of the statement had not commenced. Osifelo was silent for some time and then spoke in “language” to Angisia and said that the killing was his, Angisia’s uncle, Fitali’s idea. Angisia is apparently related to both the appellants Fitali and Osifelo. Angisia then told Osifelo to give his story to Det. Const. Rifasia as he, Angisia was there only as the witnessing officer. The interview appears to have been conducted in pidjin. According to Rifasia before recording of the statement started, which was 0436 hours, he asked if they should take a break and continue the interview the next day but Osifelo said they should continue with the interview and finish it. This was confirmed by Angisia. There were, however, a number of breaks for Osifelo to smoke and chew betel nut and have some food. He said he was okay. The interview finished at 11.20 a.m.

We share, in general terms, the views expressed by the President in his dissenting judgment on this issue as to the undesirability of taking a statement over so long a time and starting at such an early hour of the morning as was the case here. However each case must be considered in the light of its own circumstances and with regard to the setting in which it was obtained. We draw attention at this point to Solomon Islands Judge’s Rules which were promulgated by the then Chief Justice in 1982. These Rules were expressly stated to replace the English High Court Judge’s Rules which had been applied up till then in Solomon Islands. They differ to some extent from the English Judge’s Rules. The learned Chief Justice saw and heard the witnesses, including the appellant, give evidence at some length and he was satisfied as to its voluntariness. He also was in a better position than we in this Court to assess any element which could have amounted to such unfairness that it should be excluded on that ground. He found none. While we are of the view that looked at overall the learned Chief Justice was justified in admitting the statement we add that it is a case very near that borderline over which it would be excluded. For passing we express the view that it would be desirable that the Solomon Islands Judge’s Rules be reviewed and the position made clear as to when persons in custody may properly be interrogated, and the nature of such interrogation.

The next matter raised was the further ground of appeal added at the hearing in relation to the caution statement based upon s.7 of the Constitution. This issue is discussed by the President in his dissenting judgment. In view of his rejection of the caution statement on other grounds he did not find it necessary to determine the matter. We, however, must consider it. We do so shortly. The formal ground submitted by the appellant’s counsel in writing was in the following terms:

"That the First Appellant was subjected to inhuman treatment at the time of interrogation and the subsequent obtaining of the Caution Statement of the 4th August 1992 Section 7 of the Constitution."

Counsel did not develop this argument. She did not canvass just what treatment it was that the appellant had been subjected to that was inhuman. “Inhuman” is a strong word and loses none of its strength from the context in which it is used. Section 7 of the Constitution is as follows:

7. No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

We are satisfied that what happened here could not be regarded as inhuman treatment within that section. The learned Chief Justice rejected the allegations of threats, violence and deprivation of food and rest. "Inhuman" ordinarily imports brutality, barbarity, cruelty or conduct of a kind not ordinarily found among civilised humans; we do not think what happened here approaches that level of conduct. We add that in our view it would also be necessary for counsel to present argument to satisfy the Court that a breach of a section in the Constitution leads to otherwise admissible evidence being excluded; the Constitution itself certainly does not say so. No doubt it would ordinarily be the case that evidence obtained as a result of a breach of the Constitution would also be excluded by the judge on the basis that it was unfairly obtained but it may not follow that every breach of the Constitution necessarily results in evidentiary unfairness.

The third broad ground of this appellant’s appeal related to allegations of questionable practice in the course of the investigation, assertions of false and conflicting testimony by Crown witnesses and submissions in respect of there being no eye witnesses of the killing, no proved motive and no body having been found. We do not think there is any substance in these points. Similarly in respect of an attempt to base a ground on the appellant’s failure to call witnesses.

Accordingly we are of the view that the appellant Osifelo’s appeal must be dismissed.

Fitali:

The first ground raised was the same as the first ground in Osifelo’s appeal and nothing further need be said on that.

The next ground was also that the learned Chief Justice wrongly admitted the appellant’s caution statement. A number of matters were raised at the voir dire including allegations of there being undue delay in terms of s.5(3) of the Constitution in taking the appellant before a Court and a failure to bring him before the Magistrate’s Court as soon as practicable in accordance with s.23 of the Criminal Procedure Code. The learned Chief Justice in his ruling canvassed the factual basis of these complaints and was satisfied there was no substance in them. Counsel failed to point to any error on the Chief Justice’s part. There were allegations, too, that the appellant was not properly cautioned and that he was threatened and forced to make the confession but we do not think there is any substance to complaints as to how the Chief Justice determined them.

Mr Remobatu for the appellant then went on to submit, in relation to the ruling of the learned Chief Justice on the voir dire, that he made an error of law in his approach to the onus of proof. He submitted that the learned Chief Justice had proceeded on the basis that the onus was on the defence. We think that this is clearly not so. At the very beginning of the ruling the Chief Justice reminded himself that the prosecution bore the burden of proving beyond reasonable doubt that the caution statements were made voluntarily. He later went on to say in relation to this appellant that if there was a reasonable possibility that the police evidence was not true then, in effect, the statements he had made would not be admissible. We see nothing wrong in that approach and do not consider ti shows that the Chief Justice had in his mind put the onus of proving that there was such a reasonable possibility upon the defence.

The next matter urged in the appellant’s written submission was that the admission of the caution statements did not mean that their contents were true. In our view the learned Chief Justice was perfectly entitled to accept the contents as truthful and to draw further inferences from them and the other evidence, such as the meeting with Basikona in his village, the going off together in the two canoes, and his plainly false story of the capsized canoe. We think there was ample material upon which the Chief Justice could be satisfied of the appellant Fitali’s guilt.

There were other submissions made by Mr Remobatu in relation to there being no eye witnesses, no weapons produced, no motive proved and no body produced. These are all factual issues but as the learned Chief Justice said, the case against this appellant, as against the other two, depended substantially on the caution statements. He was satisfied as to the truth of them and was accordingly satisfied of this appellant’s guilt.

Mr Remobatu made a last submission to the effect that the appellant said he had other witnesses but these had not been called at the trial. In answer to the President Mr Remobatu accepted that he had not been told by the appellant who these witnesses were nor what they might say. There is nothing on that point. It follows that Fitali’s appeal must be dismissed.

Maefasia:

This appellant’s original notice of appeal contained a considerable number of points but at the hearing Mr Wasiraro, counsel for Maefasia, handed in a written submission, which he developed orally, which contained only one ground to the effect that the learned Chief Justice wrongly exercised his discretion in admitting Maefasia’s caution statement. He first submitted there were three grounds for urging that the learned Chief Justice should have excluded the statement as being unfairly obtained but during the course of his submission he reduced them to one ground, namely, that the appellant had not been properly cautioned when he made the two statements he did, which were on the 3rd and 5th August. The statement on the 3rd August was a long statement and covered some fourteen pages of hand writing in pidjin. The statement on the 5th was a short one and was added on to the fourteenth page of the first statement and carried on to a fifteenth page. The first statement on the 3rd August which was conducted by Detective Senior Sergeant Angisia had an introduction in which the names of the three police officers involved was given and a statement to the effect that the police were conducting an inquiry into a case in which an old man named Basikona was said to have been in a canoe that sank and he was drowned at Fousiu. The introduction went on to set out the usual caution that if he wished to remain silent he might do so. There were then spaces for the appellant to sign and the police officers to do likewise. The appellant had not signed but the police officers had done so. The body of the statement then followed, in narrative form, in pidjin up to and including two thirds of page fourteen. The appellant had signed page fourteen as did the police officers; the appellant had also signed pages three, six, eight, nine, eleven and thirteen.

The second statement on the 5th August contained no introduction but went straight to the additional material in narrative form. It was signed at the end by the appellant and the three officers.

At the voir dire the appellant raised the issue of force as a result of which he contended the statement was not given voluntarily. He also contended he had not been cautioned at either interview. The learned Chief Justice in his ruling dealt with the first issue at some length; he rejected the appellant’s account, which was, in effect, that he had not said any of the things contained in the statement but that they had been made up by the police and he had been forced to sign. The Chief Justice disbelieved his allegations of force being used against him and of his assertion that he was suffering from malaria. He did not, however, specifically deal with the allegation that the caution had not been given.

In his submissions to us Mr Wasiraro pointed out that the appellant had not signed in the allotted space on the first statement and submitted that it should thus be inferred that he was not cautioned. We are not prepared to draw that inference. There are a number of reasons for this. First, all three police officers say the caution was given and the first statement which recorded that the caution was given, though it was not signed by the appellant in the space provided immediately below the caution, was signed by him at the end and also on six other pages. Second, Detective Senior Sergeant Angisia said in evidence that when he cautioned the appellant at the time of the first statement he said he wished to explain his side of the story and that his heart was troubled about it; that after they killed Basikona his mind never settled. This response of the appellant was noted in the Detective Senior Sergeant’s notebook and the Court record shows that he read from pages 12 and 13 of his notebook. This has a ring of truth about it. Third, the Detective Senior Sergeant said that though he noted giving the caution in his notebook on the first interview statement the note was not signed by the appellant but in respect of the second statement though the caution was not included in the record signed by the appellant it was noted in his notebook and the appellant did sign that. It is unlikely that the officer would give the caution on the second occasion and not the first. We add that Mr Wasiraro in his reply to Crown’s counsel’s submission said the appellant did not accept that he had signed the notebook but he, counsel, accepted it was signed. Accordingly, we think that the appellant’s statements were properly admitted and we are reinforced in that view by the independent evidence referred to earlier in this judgment where two persons, relatives of the appellant, stated he had told them he had taken part in the killing.

It follows that this appellant’s appeal also fails and must be dismissed.

ORDER: The appeals of all three appellants be dismissed.