R v Tome [2004] SBCA 13; CA-CRAC 004 of 2004 (10 November 2004)

SOLOMON ISLANDS COURT OF APPEAL

FILE NO/S: Criminal Appeal Case No 4 of 2004

PARTIES:

R
(appellant)

v

TOME, Na’asusu
(respondent)

CITATION: R v Tome

DIVISION: Court of Appeal
PROCEEDING: Criminal Appeal
ORIGINATING COURT: High Court at Honiara

DELIVERED ON: 10 November 2004
DELIVERED AT: Honiara
HEARING DATE: 8 November 2004

JUDGES: Lord Slynn President and Goldsbrough and Williams JJA

JUDGMENT OF THE COURT

ORDER: Appeal dismissed

COUNSEL: R Barry, with R Talasasa, for the appellant
K Averre for the respondent

[1] THE COURT: At the close of the prosecution case counsel for the present respondents (Tome and Laefiwane) submitted that there was no case for either to answer on the charge of murder. After hearing submissions from both sides the learned trial judge concluded that there was no case to answer and entered acquittals for each respondent. From that decision the Crown has appealed pursuant to s 21 of the Court of Appeal Act.
[2] At trial the prosecution opening was brief; it was as follows:

“On Sunday 18 May 2003 the deceased Mr. Gersbach employee Seventh Day Adventist Atoifi Hospital was working on a building site within compound. Between 12 – 2pm that day, the worker met his death through acts of two accused murdered him. Tome was at the time armed with a bush knife and chopped the neck of Lance G. effectively severed the head from the body. The acts perpetrated by Tome were done through the assistance and counseling of Silas Eddie Laefiwane.”

[3] The Notice of Appeal contended that the learned trial judge applied an incorrect test in ruling on the no case submission and sought an order that each respondent be retried for murder. At the outset of the hearing of the appeal Mr Barry for the Crown informed the court that the appeal in so far as it involved the respondent Laefiwane was abandoned.
[4] Section 269(1) of the Criminal Procedure Code provides for a trial in the High Court that when “the evidence of the witnesses for the prosecution has been concluded ... the court, it if considers that there is no evidence that the accused ... committed the offence, shall ... record a finding of not guilty.” The wording is significant given the different phraseology in s 197 which deals with the no case situation in the Magistrates Court.
[5] The submissions of counsel for the Crown focussed on the following passages in the reasons of the learned trial judge for ruling there was no case to answer:

“The test to be applied, in the Solomon Islands, in accordance with the Galbraith direction, when considering the prosecution case in terms of ‘no evidence’ used in s.269 of the Criminal Procedure Code, is that enunciated by the Court of Appeal in Sutarake. The test to be applied by the judge in the Solomon Islands, whether at the end of the trial (Sukarake) or at the time of a no case submission (In case stated by DPP(No.2)(1993)(see below), is, in material respects the same.”

“As I said previously, to find a case to answer, in accordance with the direction in Sutarake it is necessary for the prosecution to show beyond reasonable doubt that there was, on the evidence, no reasonable hypothesis consistent with innocence. Since a trial judge sits without a jury, following the Galbraith direction, the prosecution need show that proof at the close of the Crown case. For it is the judges responsibility to weight [sic] up the Crown case, (consistent with the law affecting circumstantial evidence) bearing in mind the four criteria, (i) relevance, (ii) admissibility, (iii) corroboration where needed and (i[v]) weight to be afforded to evidence allowed in.”

“I am not satisfied, however, of the perpetrator. How can I be sure, beyond reasonable doubt, on the evidence as it stands when the cable’s strands rely on conjecture for their strength, not logical deductions on the evidence? The two crucial witness, Fraser and Joshua, have had their evidence in court (about knowing and seeing Na’asusu) discredited by reason of the material change from that given the police so soon after the killing.

Is it fair to infer that Na’asusu was the one who killed Lance Gersberch, when the investigating officer was at such pains to assert that Silas was that man on the 22 May last year at the time Silas, when the two crucial witnesses’ statements were with police from the outset?

Conjecture

I must conject that Na’asusu, who went along the same road as used by all, on the Friday, and was there on the Sunday, (seemingly aimlessly with the other Kwaio youths who gave evidence, and were there,) carried out this killing at some time in that half hour period. It would be difficult to infer, on evidence so weakened and in the face of the investigators initial contrary assertions; (that Silas swung the bush knife) and in the absence of better explanation for suspicion to move to Na’asusu. For it must be remembered the police inspector had these crucial witness statements when Silas was accused of the killing. Very good reasons for suspicion are not enough, when this court is not made privy to them.

The detail to make the cable secure is deficient. The Crown case, then really comes down to the accused’s presence about the time of this killing, with a bush knife. I cannot be satisfied beyond reasonable doubt that this man Na’asusu killed Lance Gersberch. I have already accepted Mr. Averre’s assertions with respect to Silas.”

[6] The learned trial judge was clearly wrong in equating the test on a no case submission with that to be applied by a judge sitting without a jury in determining whether the prosecution has at the end of the trial proven the accused person to be guilty. The test called for by s 269(1) is whether or not there is “no evidence that the accused committed the offence.” That must mean that if there is some evidence that the accused committed the offence the case must proceed to final determination by the tribunal of fact.
[7] The position is similar, if not identical, with the law as expounded by the High Court of Australia in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207. In that case the Court said at 212 that it was the duty of a trial judge to direct the jury to return a not guilty verdict “if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.” Their Honours’ reasoning on page 214 makes it clear that issues of truthfulness of evidence are for the tribunal of fact (jury) and are not relevant at the stage of considering whether there is a case to answer. That led the court to qualify to some extent the test for no case formulated in R v Galbraith [1981] 1 WLR 1039 at 1042. All of that resulted in the Court formulating the test as follows:

“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.” (214-5)

[8] The statement in Case stated by DPP (No 2) [1993] SASC 4152; (1993) 70 A Crim R 323 at 327 quoted by the learned trial judge in his reasons must be read subject to what was said in Doney.
[9] It is clear that the general law, enshrined in s 269(1), requires a different test to be applied when ruling on a no case submission from that which would be applied in determining guilt or otherwise at the end of the trial. That distinction must also be maintained when the trial is by judge alone.
[10] As is made clear by cases such as Doney inconsistencies in evidence (whether within the testimony of a witness or as between witnesses) are not relevant at the no case stage. The court must take the prosecution evidence at its highest and that means accepting the evidence most favourable to the prosecution when determining whether an accused has a case to answer. The test then is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused in guilty.
[11] The distinction is important because rejecting the no case submission leads to the next stage of the trial. The accused may elect to give evidence in which event the final test would be applied in the light of all the evidence then before the court. If the accused does not give evidence the tribunal of fact has the benefit of final addresses during which issues of credibility of witnesses and sufficiency of evidence not relevant to the no case determination will be explored.
[12] In the present case the circumstantial evidence most favourable to the prosecution was as follows. The deceased was decapitated by a single blow from a sharp weapon. Witnesses placed the respondent, in possession of a sharp bush knife, in the immediate vicinity of the deceased within about a half hour of the killing. The respondent told investigating police that after going to hospital he “went home”. He said he “just went past” where the deceased was working. Other witnesses had the respondent sitting watching the deceased working. That evidence was capable of establishing that the respondent lied evidencing a consciousness of guilt. Also the learned trial judge had admitted similar fact evidence to the effect that at an earlier time the respondent had cut an Italian tourist with a bush knife.
[13] Given that evidence it could not be said there was no evidence that the accused committed the offence and therefore the submission of no case should have been rejected and the trial should have proceeded to the stage of the respondent’s election.
[14] The passages quoted above from the reasoning of the learned trial judge amply demonstrate that he merged the two exercises and therefore fell into error. The prosecution was thus deprived of the benefit of a final address which could have affected the court’s conclusion on issues of credibility and inconsistency. Thus the prosecution was deprived of a trial according to law.
[15] It follows that the learned trial judge erred in ruling as he did. Given the provisions of s 21(2) of the Court of Appeal Act this court has a discretion whether or not in those circumstances to remit the matter for retrial. In considering how to exercise that discretion this court should in the circumstances of this case consider whether a conviction would be unreasonable or not supported by the available prosecution evidence (s 23(1) of the Court of Appeal Act).
[16] In carrying out that exercise it is not irrelevant to note that the learned trial judge who had the advantage of hearing the witnesses had concerns about the reliability of some of the prosecution witnesses, particularly Fraser and Joshua. They were the witnesses who placed the respondent sitting watching the deceased work. Unless their evidence is accepted there is no evidence placing the respondent near the deceased at about the time of death.
[17] Further unless the evidence of Fraser and Joshua is accepted there is no basis for finding that the respondent lied when he told the police he “just went past”. In any event bearing in mind what the High Court of Australia had to say about lies evidencing a consciousness of guilt in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 it is doubtful that significant weight could be attached to any proven lie in this case.
[18] Objection was taken to the admissibility of the alleged similar fact evidence, but it was admitted. The evidence was given by the witness Anisi and related to an alleged incident on some earlier date in 2003. The evidence was very vague and there was some uncertainty as to the witness’s description of the incident on various occasions. It is doubtful whether the evidence was properly admitted, but in any event it could not carry much, if any, weight.
[19] There is another observation which should be made at this stage. The prosecution case at trial was that it was Laefiwane who had a motive to harm the deceased and he counselled the respondent to commit the crime. That became the motive or reason for the respondent doing what the prosecution alleged he did. The acceptance by the Crown of Laefiwane’s acquittal would mean that such evidence of motive could not be led at any retrial; it would be unfair to the respondent for the prosecution to maintain that stance. The result would be that the respondent would be placed in jeopardy again but facing some new allegation as to the reason for his conduct without there being any change in the prosecution evidence.
[20] At the end of the day, whilst the court has some unease about the matter particularly because of the proximity of the respondent to the deceased at the relevant time, it has come to the conclusion that the evidence is insufficient to warrant ordering a retrial. There has to be finality in legal proceedings such as this; that is reflected in the concepts of autrefois acquit and double jeopardy.
[21] These reasons indicate how the learned trial judge erred and establish the proper approach to a no case submission. But in the circumstances the verdict of acquittal should stand.
[22] It is sufficient then for the court to order that the appeal be dismissed.