R v Somae [2005] SBCA 18; [2005] 2 LRC 431 (4 August 2005)

[2005] 2 LRC 431

IN THE SOLOMON ISLANDS COURT OF APPEAL

R v SOMAE

[2005] SBCA 11

Court of Appeal
Lord Slynn of Hadley P, Adams and Kabui JJA
20 July, 4 August 2005

(1) criminal procedure - Trial -Judge - Intervention - Trial for murder -Judge intervening at close of prosecution case - Intervention prompting submission of no case to answer - Judge accepting submission and acquitting accused - Whether intervention justified - Whether material error - Whether miscarriage of justice.

(2) criminal procedure - Trial - Submission of no case to answer - Test applicable - ingredients of offence -Murder - Self-defence - Evidence that accused killed deceased by intentional act - No prosecution evidence to negative self-defence - Trial judge accepting submission of no case to answer - Whether error of law - Relevant considerations.

The deceased had remonstrated with the respondent one evening following a fight with someone else and had punched and kicked the respondent. The deceased then went to the respondent's house where he shouted, swore and allegedly threw stones at the respondent. The deceased was a martial arts proponent who was capable of inflicting serious injury or death. The respondent shot the deceased twice. The respondent admitted killing the deceased but said that he was attempting to defend himself and the family from the deceased. At trial, at the close of the prosecution case, the judge was concerned that no submission of no case to answer had been made by counsel for the respondent and asked for the assistance of the Public Solicitor. Following that intervention a submission of no case was made and the judge accepted that submission and acquitted the respondent. The Director of Public Prosecutions appealed to the Court of Appeal on the grounds, firstly, that the trial judge had made a material error in intervening and asking the Public Solicitor to make submissions of no case and, secondly, that the judge had erred in ruling that there was no case to answer and had erred in law in considering the issue of self-defence.

HELD: Appeal dismissed.

(1) A trial judge was always justified in intervening to suggest that a course proposed by the defence might not be in the accused's interest. That was part of the judge's oversight of the trial process. In the instant case the trial judge was simply attempting to ensure that defence counsel did not, by inexperience, mistake or misjudgment, prejudice the interests of the accused. Therefore there was no impropriety by the judge in calling for the assistance of the Public Solicitor and prompting the submission of no case to answer (see p 435, below).

(2) Prosecution evidence that was to be considered for the purposes of a no case submission had to be capable of amounting to proof beyond reasonable doubt of the accused's guilt. It was not enough if it was merely capable of proving the possibility of guilt. It had to be capable, if accepted, of proving guilt beyond a reasonable doubt. Whether it was right to take the evidence at its highest or most favourable to the Crown was, of course, ultimately a matter for the tribunal of fact. But in order to establish a case to answer, there had to be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt. For the purposes of considering whether there was a case to answer, the learned trial judge was required to ignore the respondent's assertions that he was under attack and had acted in self-defence. The prosecution evidence was silent as to the circumstances in which the deceased had been shot. There was certainly evidence that the respondent had killed the deceased, that he had intended to inflict grievous bodily harm and that doing so was intentional and not accidental. However, in a case of murder, the prosecution also had to establish beyond reasonable doubt that the act of the accused was not done in self-defence. It was quite wrong to speak of that as a 'defence', although it was conventional to do so. In each case it was incumbent on the prosecution to prove both that the act causing death was intentional and that it was not committed in self-defence. In the instant case there was no evidence at all, either directly or inferentially, capable of negativing the reasonable possibility that the respondent acted in self-defence. The state of the evidence was such that the respondent might have acted in self-defence or he might not have so acted. In order to be satisfied as to that element, the tribunal of fact would inevitably have needed to speculate about what had happened. It followed that no error of law was demonstrated and the trial judge had been obliged to hold that there was no case to answer (see pp 436-437, below). R v Lutu (23 October 1976, HCSI CC 37 of 1976, unreported) R v Galbraith [1981] 2 All ER 1060, dicta of Deane J in Doney v R [1990] HCA 51; [1990] LRC (Crim) 416 at 423 and R v Tome (10 November 2004, SICA, unreported) applied.

Cases referred to in judgment

Ayles v R [1993] SASC 3987; (1993) 66 A Crim R 302
Doney v R [1990] HCA 51; [1990] LRC (Crim) 416, (1990) 171 CLR 207, 96 ALR 539, Aus HC
R v Galbraith [1981] 2 All ER 1060, [1981] 1 WLR 1039, UK CA
R v Lutu (23 October 1976, HCSI CC 37 of 1976, unreported), Sol Is HC
R v Musuota (8 December 1997, unreported), Sol Is CA
R v Prasad (1979) 23 SASR 161
R v Tome (10 November 2004, unreported), Sol Is CA

Appeal

The Crown appealed against the decision of Brown J on 24 February 2004 to acquit the respondent, Manessah Somae, of the charge of murder, on the basis of no case to answer. The facts are set out in the judgment of the court. 4 August 2005. The following judgment of the court was delivered.

LORD SLYNN OF HADLEY P, ADAMS and KABUI JJA.

INTRODUCTION

The respondent was arraigned on 19 February 2004 in the High Court of Solomon Islands (Brown J) upon a charge of murder. It was alleged that he murdered Paul Dadamu on 21 May 2003 in Honiara. He pleaded not guilty and was acquitted by his Lordship on 24 February 2004. The Director of Public Prosecutions has appealed to this court from the respondent's acquittal and seeks an order for a new trial. Before dealing with the grounds of appeal, it is convenient to set out the substance of the prosecution case.

The prosecution case

The first witness called by the prosecution was James Toaki, who gave his evidence in pidgin. He said that, sometime between 8 pm and 9 pm, he saw the deceased and one Reginald Aka fighting on the main road just outside his house. Reginald ran away when some of the deceased's relatives, including the respondent, arrived. The respondent remonstrated with the deceased, who punched him and, when he fell, kicked him. The respondent's son and wife pulled the deceased away from the respondent. Mr Toaki heard the respondent say 'Come, let's go back to the house to settle this'. (We interpolate that the note in English of the pidgin is: 'I heard Manasseh say come let's go back to the house to settle this. To settle this now public guns.') This evidence does not make sense to us, but it may simply represent an error in transcribing Brown J's notes. It was not clarified by further questions but it seems from the ensuing evidence that the reference to guns was not to words uttered by the respondent but was the witness recalling that he later heard two gunshots from the respondent's home. It should also be noted that Mr Toaki said that the language used by the respondent and the deceased was Kwarae, which he only spoke 'a little'. Mr Toaki said that he saw the deceased and David (a friend of the deceased) go up the road (presumably towards the respondent's house). The deceased was shouting and swearing at the respondent. He returned to his own house, heard further argument at the respondent's home and then the two shots. The second witness was Colson Kamaro. He said that, at about 9 pm, the respondent came to his house and said that he was in trouble. The witness had heard a gunshot. He said that the respondent was frightened. He said words to the effect that he had intended to hit the deceased on the leg but was not sure. David Kilea, a friend of both the respondent and the deceased, gave evidence of the deceased's becoming involved in a fight on the road not far from the respondent's home, of the respondent remonstrating with the deceased, of the deceased hitting him to the ground and kicking him, of an exchange of swearing and of the respondent returning to his own house. He tried to restrain the deceased and get him to leave the scene with him but could not, the deceased saying, in effect, that he wanted to attack the respondent again. He later heard a gunshot but had not seen what happened. He said that the deceased was well trained in martial arts. Police gave evidence of attending the respondent's premises that night. The house was empty. A search recovered a number of cartridge shells near the driveway, two of which appeared to have been recently fired. They also saw some bloodstains on the road up to the house.

The respondent was interviewed by the police. In substance, he said that he was attempting to defend himself and his family from the deceased. He agreed that he was angry at the deceased's unprovoked attack on him. He said that the deceased was throwing stones at him He said that he fired warning shots but the deceased took no notice. He aimed for the deceased's legs and saw him fall. He said that, if he had not done so, the deceased would have killed him instead. The respondent's account was repeated several times. It was internally consistent and consistent with the evidence of the other witnesses, except that he claimed that David was nearby and carrying a bayonet or knife, which David had denied.

The post mortem revealed gunshot wounds to the left wrist and the right mid-thigh. It appeared that the bullet which caused the latter wound went through the pelvis and entered the retroperitoneal space where it caused the major bleeding resulting in death.

THE PROCEDURE ADOPTED BY THE TRIAL JUDGE

When the prosecution closed its case, defence counsel indicated the course he proposed to take, implicitly declining to seek a directed verdict. The record shows that the learned trial judge was concerned that no submission of no case was being made and asked for the assistance of the public Solicitor. We have been informed that Mr Averre conferred with de fence counsel but otherwise took no part in the proceedings. Following his intervention, a submission of no case was made. Following submissions by the prosecutor, Brown J reviewed the evidence. His Lordship noted that the prosecution had shown that the deceased was irrational, drunk and the assailant, being willing f to pursue the respondent to his own home against the wishes of David Filia. He noted that the respondent had already been seriously assaulted by the deceased who was a martial arts proponent and capable of inflicting serious injury or death and that he had threatened the responded with a stone. His Lordship noted that the threat was real, a reasonable person would be frightened for his life in these circumstances and that the conduct of the deceased was immediate and threatening when he was shot. His Lordship's concluding note was as follows:

'Since I am judge and jury I am not satisfied that the prosecution has proved its case in regard to the law to such an extent that this man should be called upon to make any further defence. He has clearly put the prosecution to proof of the requisite intent and the evidence is lacking for the reasons I have given. It is appropriate to stop the trial here for there is no case to answer. Stand up - Finding not guilty - you are acquitted and discharged.'

THE GROUNDS OF APPEAL

The Director of Public Prosecutions has appealed on the following grounds.

(1) The learned trial judge erred in law in ruling that the respondent had no case to answer after the close of the prosecution case.

(2) The learned trial judge committed a material irregularity during the trial, in that he directed a lawyer who directed a lawyer who did not represent the respondent in court, when the lawyers representing the respondent ... had decided to call witness for the defence after the close of the prosecution case, thereby causing a miscarriage of justice.

(3) The learned trial judge erred in law in drawing the defences of provocation and self- defence as exculpatory to support his ruling that the respondent had no case to answer, thereby causing a miscarriage of justice.

It is convenient to deal with the second ground of appeal first. The procedure adopted by Brown J is sufficiently set out above. A trial judge is always justified in intervening to suggest that a course proposed by the defence might not be in the accused's interest. This is but part of the Judge's oversight of the trial process. We considered that his lordship was simply attempting to ensure that defence council did not, by inexperience, mistake or misjudgement, prejudice the interest of the accused. No more was done than to explain the potential prejudice that might be suffered by the accused if his counsel undertook the course he had outlined. We cannot see that there was any impropriety at all in calling for the assistance of the Public Solicitor, let alone that any miscarriage of justice was occasioned by his Lordship doing so. Furthermore, no complaint was made by counsel for the accused, who continue to represent him. It is obvious that there was a basis for a submission, at least, that although there may have been evidence upon which the accused might be lawfully convicted, the tribunal of fact (here, the trial judge) might well consider that it was so lacking in weight and reliability that a conviction would be unsafe: see R v Galbraith [1981] 2 All ER 1060, R v Prasad (1979) 23 SASR 161 and Ayles v R [1993] SASC 3987; (1993) 66 A Crim R 302.

The learned trial judge was entitled, in our view, to consider that he would be assisted by submissions at that point in the trial as to whether there was a case to answer and to invite counsel to make such a submission. Brown J's request for the help of Mr Averre was entirely within the scope of his discretion, although had defence counsel objected to this course, his Lordship could take the matter no further.

There is no merit in this ground.

It is convenient to consider the remaining two grounds together. In substance, the director complains that Brown J found there was no case to answer on a consideration of all the evidence that had been presented in the prosecution case, rather than confining himself only to those parts of the prosecution case that assisted prosecution. The direction relies on the judgment of this court in R v Tome (10 November 2004, SICA, unreported), where the court said:

'As is made clear by cases such as Doney v R [1990] HCA 51; [1990] LRC (Crim) 416, inconsistencies in evidence (whether within the testimony of a witness or 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 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 is guilty. 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.'

It is important to note that the evidence that is to be considered for the purposes of a no case submission must be capable of proof beyond reasonable doubt of the accused's guilt. It is not enough if it is merely capable of proving the possibility of guilt. It must be capable, if accepted, of proving guilt beyond a reasonable doubt. As the High Court of Australia said in Doney v R [1990] HCA 51; [1990] LRC (Crim) 416 at 423:

'[T]o put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.'

It follows that it must be such as to permit proof of guilt without inappropriate speculation. Whether it is right to take the evidence at its highest or most favourable to the Crown is, of course, ultimately a matter for the tribunal of fact. But, in order to establish a case to answer, there must be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt. To take an example that might have applied in the present case if the respondent had made no admissions, the Crown would have established that it was possible that he had shot the deceased, but there was no evidence capable of establishing beyond reasonable doubt that he had done so. Accordingly, there would have been, on this hypothesis, no case to answer.

For the purposes of considering whether there was a case to answer, the learned trial judge was required to ignore the respondent's assertions that he was under attack and had acted in self-defence. Doing so, the prosecution was left with following evidence: first, the deceased had attacked the respondent viciously without provocation and was going towards his house with the expressed intention to attack him again; secondly, two shots had been fired by the respondent from the appellant's premises, striking the deceased in the hand and the leg, and, thirdly, the respondent was angry. Even if it was necessary to ignore the first and second matters, this material was silent as to the circumstances in which the deceased had been shot. There was certainly evidence that the respondent had killed the deceased, that he had intended to inflict grievous bodily harm and that doing so was intentional and not accidental: these elements were established (for the purposes of the no case submission) by the respondent's admissions and the medical evidence. However, in a case of murder, the prosecution must also establish beyond reasonable doubt that the act of the accused was not done in self-defence. It is quite wrong to speak of this as a 'defence', just as it is wrong to speak of accident as a 'defence', although it is conventional to do so. In each case it is incumbent on the prosecution to prove both that the act causing death was intentional and that it was not committed in self-defence. As we have already noted, the possibility of accident was excluded by the admissions of the respondent. However, upon the limited material evidentiary material available for the purposes of considering whether there was a case to answer, there was no evidence at all either directly or inferentially capable of negativing the reasonable possibility that the respondent acted in self-defence.

We observe that there was no evidence contradicting the respondent's account of events (with the exception of whether David had possession of a knife, and that might well have been the respondent's mistake since David himself said that the deceased had been attacked by someone-not the respondent-with a knife). The Crown submission in this court appears to assume that disregarding the respondent's assertions about acting in self-defence means that it should be inferred that he had not done so. This is an obvious logical fallacy. In short, the state of the evidence was such that the respondent might have acted in self-defence or he might not have so acted, with no evidence of the fact, one way or another, or capable of resolving the issue. In order to be satisfied as to this element, the tribunal of fact would inevitably have needed to speculate about what had happened. It follows that, applying Tome, no error of law is demonstrated and Brown J was obliged to hold there was no case to answer.

It is worth noting, however, that Tome was decided by this court on 10 November 2004, whilst the respondent's trial occurred in February 2004. Brown J did not have the benefit of Tome for the purposes of considering whether, in the respondent's case, there was a case to answer. We have not seen the written submissions made by both counsel, but it is obvious from Brown J's notes that the Crown did not submit that his Lordship was bound to take the evidence at its highest for the Crown. We observe that, to say the least, it would be unusual for this court to countenance submissions here that were not made below, especially where the Crown is seeking to overturn an acquittal upon a ground never argued at first instance. It was submitted in this court that 'the Crown was deprived of a trial according to law'. Such a submission cannot stand in light of the implicit acceptance by the Crown at the trial that the approach (if not the conclusion) of the trial judge was appropriate.

Before Tome was decided, it was accepted that the relevant test in Solomon Islands was that enunciated in the United Kingdom in R v Galbraith [1981] 2 All ER 1060 at 1062:

'(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.'

Although Galbraith was not specifically referred to, Ward CJ applied the test in R v Lutu (23 October 1997, HCSI CC 37 of 1976, unreported) in the following way (as set out in the headnote):

'(1) On a submission of no case to answer, discrepancies between witnesses or the credibility of the evidence will not be evaluated; that evaluation comes at the close of the evidence as a whole. If the prosecution's evidence could result in a conviction, the accused must be put to his defence

(2) Where, however, the evidence is so little or so unconvincing that it is insufficient to convict even if uncontradicted by the defence, the accused should not be required to make a defence.'

Lutu was regarded as setting out the applicable test in Solomon Islands until Tome. His Lordship's notes referred to Lutu and the inference that the Crown prosecutor did not submit that it was wrong is inescapable. Applying the Lutu test to the circumstances of this case, Brown J was entitled to conclude that the prosecution case was such that a jury properly directed could not properly convict the respondent or was 'insufficient to convict, even if uncontradicted by the defence'.

At all events, this is not a matter in which the interests of justice require a new trial (see R v Musuota (8 December 1997, SICA, unreported)). The evidence, which has been sufficiently outlined above, demonstrates that conviction is unlikely and, indeed, that a guilty verdict would be unsafe. Moreover, as we have mentioned, the Crown here seeks to complain in this court about an error of law on which it made no submissions at trial. We note also the relevant consideration that the respondent has been at liberty since 24 February 2005.

ORDER

The appeal is dismissed.