IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	Appeal from Judgment of the High Court of Solomon Islands (Muria CJ)

Court File Number:	Criminal Appeal No 17 of 2003 (On Appeal from High Court Criminal Case No 68 of 1999)

Date of Hearing:			Monday 18th July 2005
Date of Judgment:			Thursday 4th August 2005

The Court:	Lord Slynn of Hadley P, Adams JA, & Brown JA.

Parties:	LUKE MAHORO
(Appellant)

-V-

REGINA
(Respondent)

Advocates:			Appellant: Lorraine Kershaw
Respondent: Michael McColm

JUDGMENT

Introduction

The appellant was convicted on 23 May 2003 of the murders of May Podeke and her grandchild Everlyn Hina. It was alleged that he drowned them off Varie Island in the waters of the Roviana Lagoon in the Western Province.

Outline of Facts

These were largely undisputed. May Podeke, aged about 40 years and her 1½ year old grand daughter Everlyn Hina lived at Kozou Village. On 1 May 1998 they set out in their canoe with others to go to Volani Village on Volani Island to attend a birthday party. On the way, they stopped at Balalae Village in Malangari Island, where they spent the night. At about 5:30 the next morning, May and Everlyn set out for Volani Village, a little over one hour’s paddle away. The weather was fine and the sea was calm. They did not arrive. Their bodies were found later that day floating at sea near Varie Island in the Roviana Lagoon. May was dead and Everlyn was unconscious.

The appellant had also left that morning for Volani Village, setting out from Baraulu Village. He was seen between 6 am and 7 am. When he got to Volani village sometime between 8 am and 9 am he told Ivy Teko, May’s older sister, that he had seen an empty canoe out at sea. She sent three of her children to collect it. When it was brought in, Ivy recognised it as May’s. It still contained guava fruit, clothes, an umbrella and a bag of potatoes. The inside of the canoe was dry. It appears that the appellant went out in his canoe again. He was then seen with May’s body in his canoe, which he brought to Volani. It was then about 9.00 am. It appeared that May had drowned. Everlyn’s body was later found at sea by two boys, Ben Bozi and Michael and brought to Volani Village.

The Prosecution tendered by consent the report of James Pada Dio, a Principal Nursing Officer, which stated, inter alia – 

“I strongly believe she died with drown. The cause of their death is drowning. (May Podeke and Everlyn Hina)”

Mr Dio also noted that physical examination of the deceased did not disclose any injuries of any kind. We mention here that, although it was submitted by counsel for the appellant in this Court that the certificate was ambiguous and it was not clear whether it dealt with both May and Everlyn, there is no doubt that it did so.

The prosecution case depended almost entirely on confessions made by the appellant to police and recorded in question and answer form on 15 May and 23 July 1998. The admissibility of these confessions was objected to but the learned trial judge Muria CJ, admitted them into evidence. It is uncontested that, if true, the confessions provided an adequate basis for conviction.

The Arrest and the Appellant’s Interviews

Police were informed on the day the bodies were discovered and officers immediately went to Volani with the Nursing Officer to examine them and conduct inquiries. On 13 May the appellant was arrested and brought to Munda Police Station. Because of threats on his life by relatives of the deceased he was kept in the Police quarters at night. The Police returned to the appellant’s village on 14 May for further investigation and, shortly after midday on 15 May the appellant was interviewed in the CID Office at Munda Police Station. There was no evidence, one way or another, whether by this time the people who had earlier threatened the safety of the appellant were still in the vicinity of the police station.

The interviewing officer was Sgt. (then Constable) John Matapaza. His evidence on was, in substance, that the appellant’s answers were given freely and voluntarily after caution. He denied making any suggestions to the appellant as to how he should answer any questions, or that he should put the blame on the alleged accomplice. He agreed that the appellant had accompanied him and other officers for a swim on the night of his arrest.

Constable Kadi said that the appellant was taken to the CID office at 8:30 am and that, while there, the appellant said that he regretted killing his aunty and that he was very sorry. Constable Kadi said that Constable Matapaza warned him what he said was serious and cautioned him. This conversation was recorded in Constable Matapaza’s notebook (since lost) which both of them signed. The formal interview was conducted at 12:15 pm with Constable Kadi the witnessing officer. Constable Kadi said that he was a relative of the appellant’s and that no influence was exerted on him at the interview.

In his first interview the appellant after giving some personal details, was asked (in pidgin)–

Q6. 	I would like to know what is the relationship between you and May Podeke?
A6.	She is my aunty.

Q7.	What in your opinion caused the death of Mrs May Podeke and Mrs (sic) Everlyn Hina?
A6.	I drown them in the sea that is way they die.

The appellant, when questioned further, told police that he had been told to do this by Dick Mehu, whom he knew from being married to his cousin sister Mary. He said that Dick Mehu told him to do this because May had taken Mary away from him and given her to another man. The appellant said that he had become a good friend of Dick’s and Dick had promised to give $500.00. He was then asked to describe what happened. The appellant said –

“A19.	I left Baraulu Village 6 o’clock early in the morning I paddled to Novele Island, both deceased paddle come too on the island, both decease paddle come to on the island called Rekorekoso. We met at Varihe Island and I paddled close to them. Mrs May Podeke talk to me by saying Son you give me tobacco, but I did not talk that time I did not think of anything my head was dark and not replying her anything, I continue paddle close to them, and reach them. I jumped out from my canoe, since where we met is not deep I stand on the reef lift Mrs May Podeke out from her canoe, that time she get hold of her granny tightly, I pressed the woman in the sea the woman a bit struggle then stop. I think since May Podeke got sick and sometimes short wind that’s why she did not struggle so much. When she struggle inside the sea, she released the child and the child float away from us. When I know she was dead I left her float, I jumped in my canoe I paddle out. When I paddle to Volani my senses came back, then I cried, when I reached Volani and told the villagers that a canoe float outside Varihe Island, otherwise it is any of your canoe that ready to go for market, but float by itself. The village people of Volani told some kids to go and pick the canoe.”

Fourteen further answers were given about the circumstances in respect of which seven amounted to express admissions of guilt, and contained corroborative details apparently coming from the appellant himself. The last of these was –

“A33.	To my opinion I think Dick might inform other village people in our place to do the same, make a deal to kill anyone or might already gave money to them but I did not know, because he Dick did not tell me. Only Andrew Kile, he Dick always associate with till the time I drown Mrs Podeke so when May Podeke die, he Andrew Kile stop the relatives not to inform Police about death so I suspect that Dick might plan with Andrew Kile too, but I did not know. I am very sorry at the moment after I do the killing, I cry and worry but its too late. I am also sorry about my kids and wife just about to labour next month.”

The appellant was interviewed again on 23 July 1998 at the Gizo CID office. The interview was conducted by Sergeant (then Constable) Vincent Erea and Sergeant Patteson Fomani. He was told that the purpose of the interview was to identify in a sketch plan his movements on 2 May 1998. He was cautioned. He was asked if he was aware that that this interview was additional to that which had occurred on 15 May 1998. He said “yes”.

He was shown a sketch plan and asked to indicate his movements. He said –

“Yes. I started paddling in the morning on Saturday at six O’clock. I reached the reef which I marked it “X” in a red and I could see May inside her canoe near Hioko Island. I marked “X” in a red both May and the baby reached. Ruana was behind them and I was paddling around Suluvanga. Both two reached Rekerekoso and I met them at Varie. I drowned them which I marked it in red in circle. I paddled the other side of Volani. Later on I took beche-de-mer and followed the same direction. I reached again the scene of drowning and went in between Sisile and Rekerekoso Islands. I returned back and paddled in between Novele and Sisile Island. I picked the body of May in the same reef where she was not move yet out. I took her to Volani.”

The appellant gave evidence on the voir dire. He said he was innocent. He said that, when asked by police about the matter, he did not say he had killed the deceased. He denied saying to anyone that he was sorry for what he had done. He denied that, when he was at Baraulu, he had been shown any map or sketch plan. He said that on 13 May Constable Matapaza had asked him about the deceased’s death. He said that all he knew was that he had found her body. He confirmed that he spent the day in the cell and, at night, was taken into the Police Headquarters for his safekeeping. He said he was well looked after. On the following day, he said, he was again spoken to by police at about 6.00 pm in the police quarters – naming them as Constables Matapaza, Fomana and Kadi – but repeated his story that he had only picked up the bodies. At about 8 pm he went swimming with Constable Matapaza. The appellant said – 

“There he told me to follow what he said and that I should not follow my story about me finding the dead bodies. He told me to make a false statement. I said that if I did that I would be in trouble. He said that I should first follow what he said. He asked me to tell him false story and that he would straighten it. He told me to push the blame on to Dick. He said he would make sure the law would help him (sic, semble “me”). Since he worked in the Police I believed him… when we got back to the house, I gave all the false story to the police. The actual interview took place in the police station...what I told the police on the morning of 15.5.98 was what Matapaza told me in the evening…Matapaza told me what to say…I signed my statement because Matapaza told me that if I signed my statement, I would prove that I did not do the killing and I would win my case”.

We interpolate that it is difficult to understand how the appellant could have thought that, by confessing to killing the deceased, he would “prove” that he did not “do the killing”. We think it most unlikely, even accepting that the appellant was ignorant of the law and legal processes, that he might have thought that by admitting he had drowned the deceased he would prove that he had not done so. Amongst other things, the appellant said Constable Matapaza had explained the purpose of the interview and his right to remain silent, which he understood, though he claimed that Constable Matapaza told him to sign it. He said that, although the answers to questions about his personal details were his own, the answers relating to the death of May Podeke were from Constable Matapaza. It was not suggested, however, that the record of interview incorrectly set out what was said; it is apparent from the evidence set out above that the appellant’s case was that he answered the questions in accordance with what Constable Matapaza had told him the previous night. This is not a case in which it is alleged that the confessional statements were not, in fact, made but were fabricated by the police.

On the voir dire, the appellant was asked – 

Q. 	Was it true that you told Matapaza on morning of 15.5.1998 that you regretted what you did?
A. 	I was sorry for my family. That was that I meant when I said, I regretted that I did.”

This, of course, is an admission that he did, as alleged by the police, volunteer that he was sorry for what he had done. It seems to us to be significant that the appellant did not suggest that he said this at Constable Matapaza’s instigation. His explanation of these words is scarcely believable; we regard them as being inconsistent with the allegation that his confession as later recorded was false.

The appellant said that the first time he mentioned that Constable Matapaza had told him to give a false story about what happened was to his lawyer on the Monday immediately before the trial, although he had been legally represented as early as October 1998 at hearings before the Central Magistrates Court. As to the 2nd interview at Gizo, the appellant said that the map which he was shown was already drawn and that he showed them where he found the body of the deceased woman. He said – 

“The story I gave at that interview were not true. I only told the police about the routes I used to take. I was asked to talk when I decided to remain silent. So I would talk. The [interview] was read back to me and I understood what was read to me. But the story my real story. It was Matapaza who forced me to give my false story. This made me feel sorry and weak.”

He agreed in cross-examination that neither Eria nor Fomani forced him to give his story, that he understood the purpose of the interview and his right to remain silent. He said –

“They interviewed me well. I did not have any fear of the two. I gave my story to them.”

Even so, he confirmed that he did not mention to Sergeant Eria anything about Constable Matapaza’s having told him to give a false story. It was uncontested that Constable Matapaza was not present at the second interview and it is not suggested that the appellant had any further relevant contact with him after the first interview was completed.

The Ground of Appeal Concerning the Admissions

In a careful and thorough judgment Muria CJ recounted the circumstances in which the admissions were made. His Lordship noted, in particular, that the appellant was not subjected to fear or oppression, that he made no complaint for over five years, even to Constable Kadi (who was a relative), the detailed descriptions of what happened which contained information that could not have been known by Constable Matapaza, Constable Matapaza’s lack of motive for implicating the appellant. His Lordship had the considerable additional advantage of seeing and hearing the witnesses in respect of an issue upon which their credibility was crucial. His Lordship considered that the appellant’s account had “the ring of truth and accuracy” and that it was unlikely that the details would have been concocted by Constable Matapaza.

Leaving aside the question of demeanour, it seems to us, with respect, that the learned trial judge’s reasoning shows no error. To the contrary, it is cogent and persuasive. The appellant’s evidence was inherently unlikely, especially in light of the elaborate details, stated in various ways, with which he disclosed his guilt.

Ultimately this ground raises an issue of fact and credibility. We consider that the learned trial judge’s conclusion was correct. We are certainly unpersuaded that his Lordship was mistaken.

Having concluded, in effect, that the evidence of the appellant as to the allegation of improper conduct by the police should be rejected, his Lordship then considered whether any other evidence supported the allegation and (rightly in our view) concluded that there was none. His Lordship observed that the allegation was a serious one and should not be raised without some basis. We do not understand the learned judge to have meant that (as was submitted on the appellant’s behalf) the appellant bore the onus of proof on the issue of voluntariness: he had previously stated unequivocally that the onus of proving that an alleged confession was voluntary lay with the prosecution. Nor do we accept the contention that, in mentioning the status of the police officer as being “also an officer of the court”, his Lordship was suggesting that therefore his evidence was to be regarded as worth more than that of the appellant. We should respectfully point out that his Lordship was mistaken in saying that a police officer is an officer of the Court. However, his Lordship was merely making what seems to us the proper point that allegations of deliberate impropriety, such as were made in this case, are serious. It would, of course, have been wrong to consider that, therefore, the Court should be reluctant to find that such impropriety might have occurred and demand of an accused any higher standard of proof than was appropriate for the proof of any other fact. If, on a consideration of the relevant evidence, including the evidence of the accused (where it is adduced), the prosecution has failed to prove to the appropriate standard that there was no impropriety affecting the voluntariness of an alleged confession, then it must not be admitted in evidence. We do not doubt that this was indeed the test applied by the learned trial judge in this case.

We should correct one aspect of his Lordship’s statement of the appropriate test of voluntariness. He said that the onus on the prosecution to establish voluntariness was proof beyond reasonable doubt. It is not contested that the standard of proof is no greater than the balance of probabilities. Since this error favoured the appellant it was, not surprisingly, not made a ground of appeal. However, we consider that the correct position should be made clear.

Other Grounds of Appeal

The appellant also appeals upon the following grounds –

1.	The conviction was unsafe by reason of the defence counsel’s incompetence and/or breach of professional and ethical duties to both the Court and the appellant in that: 

(i)	the defence counsel did not disqualify himself from representing he appellant notwithstanding the fact that the defence counsel had presided as the Principal Magistrate at the preliminary inquiry proceedings and had himself committed the two charges against the appellant for trial in the High Court;

(ii)	the defence counsel consented to the admission of the medical report concerning the cause of death of the two deceased and did not seek to cross-examined the author of the report, notwithstanding that, inter alia:

a.	the author of the report was a nurse and not a doctor;

b.	the report is unclear as to whether its observations relate to the bodies of both deceased;

c.	the report was based only on an external examination of the deceased;

d.	the findings of the report were not conclusive of death by way of forcible drowning; and

e.	there is no date to specify when the examination was conducted;

(iii)	the defence counsel failed to call or require the prosecution to call a witness named in the information, Mrs Mali Sukulu, whose deposition stated that one of the deceased (Everlyn Hina) was found in the water alive (although she died some hours later). This statement is clearly inconsistent with the findings of death by drowning made by the Principal Nursing Officer; and

(iv)	the defence counsel failed to apply for an adjournment or to otherwise ensure the attendance of a defence witness for the purpose of giving evidence in the voir-dire challenging the admissibility of the caution statement of the appellant.

It is undisputed that defence counsel Mr Dwane Tigulu had indeed presided as the Magistrate at the preliminary inquiry proceedings on 8, 15, 28 September, 12, 26 October, 9, 23, 30 November and on 4 December 1998. He committed the appellant for trial in the High Court. The committal was uncontested. In due course, Mr Tigalu left the magistracy and joined the Public Solicitor’s Office as a legal practitioner. The trial commenced before the Chief Justice on 26 May 2003. It is contended that Mr Tigulu should have declined to represent the appellant at his trial on the charges for which he had committed him. We are unaware of any rule of law or practice that prohibited Mr Tigulu from appearing for the appellant. Although it may have been undesirable for him to have done so, we do not accept that his doing so comprised any unethical conduct. For all we know, there may have been difficulties in obtaining other representation without causing significant and unacceptable delays in the trial of the appellant or other good reasons that justified his being retained. Of course, the position would be different if Mr Tigalu had become privy to some confidential material relevant to the case but which he was unable to disclose to the appellant and was thus in a conflict of interest situation or, perhaps, if anything had occurred that gave the appearance of this being so. But, as the committing magistrate, he presided over an essentially administrative proceeding that was uncontested, in which he received papers that were on the public record and which did not require any determinations of credibility adverse to the appellant.

Although we do not think that this is a practice to be encouraged, we are satisfied that there was no impropriety nor the appearance of impropriety in Mr Tigalu’s representation of the appellant. We think it only fair to add that the record shows that Mr Tigalu conducted a vigorous defence of the appellant that appears not to have been affected by any other consideration than the interests of his client and the rules of professional conduct.

The remaining particulars allege incompetence on the part of defence counsel. In some exceptional circumstances a Court of Appeal will intervene where counsel has acted incompetently: see R –v- Birks (1990) 19 NSWLR 677. However, in this case, we are satisfied that the criticisms of defence counsel are entirely unjustified.

We take first the complaints concerning the admission by consent of the medical report. That the deceased were drowned was not a real issue in the trial. The question was whether they were forcibly drowned and, if so, by the appellant. The possibility of accidental drowning was distinctly raised by the unqualified statement by the Nursing Officer of the lack of any external injury, including bruising and lacerations. Cross-examination could not have improved this evidence from the appellant’s point of view. The fact that the report was not conclusive of death by drowning must have assisted the appellant. Although the date of the examination was not stated in the report, the only proper inference was that it occurred on 2 May 1998 or very shortly after, as the police gave evidence to the effect that they first attended at Volani Village on that day in company with the nurse and the bodies were then examined.

It seems to us that the decision of defence counsel not to require the nurse for cross-examination so far from being incompetent, was a sensible and realistic tactical decision for which he cannot be criticised. We note that there is no evidence suggesting that a doctor would or could have given any different evidence.

The second criticism of defence counsel concerns the failure to adduce the evidence of Mali Sukulu. The relevant part of her evidence, in substance, was that Everlyn was found by two young men floating in the sea near Novele Island, that they brought her to Mali at Volani Village at about 2 pm and that Mali attempted to revive the baby, having noted pulses in her hands. She desisted after some time for reasons that are irrelevant and the baby later died. This evidence did not assist the appellant at all. Indeed, it provided corroboration for the accuracy of his account to police of what had happened. In that account the appellant said that May was holding the child when he “pressed her in the sea” and that, as she struggled, the child floated away “and no one picked her so she die also”. The singular coincidence that he gave an account so consistent with the possibility that the child was picked up still alive, though obviously unconscious, some hours later could scarcely have assisted his denial of knowledge of the circumstances of the deaths. The mere fact that the child died after having been collected unconscious from the sea does not suggest to us that the nurse’s opinion that she died from drowning was mistaken. Counsel’s omission to adduce this evidence was not incompetent. In fact, we rather think it demonstrates the opposite.

The last contention as to alleged incompetence is the failure to apply for an adjournment to permit the attendance of a witness identified as Christopher Akosaua, who it was intended to call to give evidence on the voir dire for the defence. It seems he was one of the police officers who attended at Volani in connection with the investigation. It was suggested in cross-examination by defence counsel that the appellant had spoken to this officer prior to his interview on 13 May 1998 and had denied killing the deceased. No evidence to this effect was adduced from the appellant, although his evidence was consistent with such a possibility. No material has been placed before this Court as to what evidence Constable Akosaua might have been able to give. It follows that this complaint must be rejected.

During argument in this Court, it was submitted on behalf of the appellant that Mr Tigalu had erred in permitting the prosecutor to put it to the appellant that the account he gave to the police was indeed the truth about what had happened. This, it was contended, went directly to the guilt or otherwise of the appellant and should not have been the subject of cross-examination on a voir dire concerned with the voluntariness of the confessions. However, the foundation of the appellant’s objection to the admissibility of the confessions was that they were false, as distinct from not having been what he said. It was therefore both necessary and proper that defence counsel should adduce from his client what he asserted he had done in relation to the deceased as distinct from what he had said in the records of interview he had done. In those circumstances, the prosecutor was entitled to cross-examine on the point. It should be observed that his cross-examination was quite limited and did not by any means approach the boundary of unfairness. There is no substance in this complaint.

We would therefore reject this ground of appeal.

It is convenient to deal with the final two grounds of appeal together. They are -

(3)	The learned trail judge…erred in finding that the evidence of the appellant as contained in his caution statement was corroborated by the evidence of the prosecution witnesses, particularly that of Rina Bagara (PW2), Arthur Bani Longa (PW3), Zau Kere (PW4), Ivy Gula Teko (PW8), Qemu Vuru (PW9) and Jessie Sape (PW 10).

(4)	The learned trial judge…erred in finding that the prosecution had proved beyond a reasonable doubt that the death of the two deceased was caused by the unlawful act of the defendant.

In the course of giving his final judgment, Muria CJ said -

“The story of what happened that day of 2 May 1998, as told by the accused himself, has found corroboration in the story related by the prosecution witnesses…[named, as above]. The evidence of these witnesses supported the accused’s own story as given to the police at Munda and Gizo during the two interviews. Those accounts are specific and can only be described so convincingly by the person who carried out the act or by someone who knew exactly what had happened. They certainly, to the court’s satisfaction, are too good to be the work of concoction.”

Muria CJ had already made the point, in his consideration of the admissibility of the record of interview, that “none of the witnesses interviewed by the police were present with the accused during his trip that fatal morning nor were any of them present at the place where the drowning incident occurred.” We do not doubt that his Lordship was well aware of this when he came to consider whether there was any independent evidence suggesting the truth or otherwise of the accounts given by the appellant to the police. We consider that, fairly interpreted, his Lordship meant no more that, as far as they went, the statements of the witnesses to whom he referred supported the substance of the accused’s accounts of his movements.

The error submitted in ground (3) above is therefore not made out.

We take it that the last ground of appeal arises under s 23(1) of the Court of Appeal Act, conventionally, though not altogether precisely, characterised as whether the conviction was unsafe or unsatisfactory. The subsection provides -

“(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:

Provided that the Court may, notwithstanding that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has occurred.”

This is provision is in a conventional form that may be found in most common law jurisdictions. It has been considered in a number of cases in Australia, of which it is sufficient to refer to Jones v The Queen (1997) 191 CLR 439 where Gaudron, McHugh and Gummow JJ said (at 450-1, 452) -

“In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey said (at 493) that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was ‘open to the jury’ to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that (at 493):

‘in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’

The majority judges explained (at 494) the application of the test as follows:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’

Gaudron J agreed (at 508) with the majority formulation of the test, as did Brennan J (at 501), although his Honour said (at 501-502) that the question as to whether it was ‘open to the jury’ to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was ‘upon the whole of the evidence … bound to have a reasonable doubt’ [Citing Dawson J in Chidiac v The Queen (1991) 171 CLR 432 at 451] or whether ‘the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused’.

McHugh J said (at 525) that the correct test for determining whether a verdict should be set aside on the ground that it was unreasonable was ‘whether a reasonable jury must have had a reasonable doubt about the accused’s guilt’. McHugh J did not adopt the ‘open to the jury’ test because his Honour thought that such a test came ‘perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused’ and would constitute ‘an unwarranted intrusion into the jury’s right to determine the facts in a criminal trial’ (at 525). However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory.”

We have set out the reasoning in M, as discussed in Jones, to demonstrate the perhaps obvious point that the tests variously formulated by the different judges reflect their views of the very significant role of the jury in the conduct of criminal trials. There are no juries in Solomon Islands. It is necessary to be cautious about adopting formulations about criminal procedures that reflect some important elements present in Solomon Islands but also considerations that do not apply here. In particular, the test whether a verdict was “open to the jury” was formulated in the context that a jury gives no reasons for its verdict. If the trial judge has, for example, made a significant error of fact in the process of reasoning leading to conviction (which would not, of course, be in a jury trial), the mere fact that, ignoring the error, the verdict was “open” to be made would not suffice to save the conviction, subject to the operation of the proviso. If no such error has affected the judge’s reasoning, then the question, whether the verdict was, on the whole of the evidence, “open to the judge” is the relevant test, subject of course to any error of law or some other matter giving rise to a miscarriage of justice.

We also consider that M is applicable in Solomon Islands so far as the obligation is concerned of this Court to undertake its own examination of the evidence in order to determine whether the trial judge, acting reasonably, should have entertained a reasonable doubt as to the guilt of the accused. Moreover, in doing so, this Court must recognize the important role given to the trial judge as the primary fact finder. In addition, the judge will almost invariably also have the considerable advantage over this Court of having heard the witnesses, often speaking in pidgin, and having the whole of the evidence aurally available for the purpose of arriving at the verdict. Typically, this Court will only have available the judge’s notes in English of the evidence, no doubt conscientiously made but often not being a complete record of the testimony, a fortiori where the evidence was given in pidgin.

There is an additional complication in this case arising from the fact that the appellant gave evidence on the voir dire but did not, it seems, give evidence in the trial. We say “it seems” because the record is unclear about whether his evidence on the voir dire was treated as evidence on the trial. Certainly, it was not formally tendered in the defence case. In this Court counsel for the appellant took the line that the evidence of the police officers as to the taking of the record of interview was admitted in the trial proper and we see no reason to doubt that this was so, and appropriately so, once the records of interview were admitted. If the appellant’s evidence on the voir dire was not available to Muria CJ to consider in the trial proper, then he was left in the position where there was nothing which suggested that the evidence of the police should not be accepted and, in particular, that suggested that the appellant’s confessions did not entirely emanate from the appellant and reflect his desire to tell the police about what had happened and express his regret for what he had done.

We would point out that it is very important that the record should clearly state what evidence was considered by the trial court in the trial proper.

Counsel for the appellant suggested a number of reasons why this Court should find that Muria CJ should have entertained a reasonable doubt about the guilt of the appellant. In substance, they focussed on the fact that the Crown case depended entirely on the appellant’s confessions and that the appellant might have been induced to make a false confession by the circumstances in which he found himself at the time of his interviews, in particular, the fact that his safety was threatened by the relatives of the deceased and that he had been in custody of the police for some time, including spending two nights in the police quarters, before being interviewed. It was also submitted that the description given by the appellant of what happened was, on examination, brief and not difficult to fabricate and thus the argument that its detail convincingly showed that it was not concocted was unpersuasive. There was evidence, also, that May suffered from a respiratory disorder that might have been responsible for her death or, perhaps, she accidentally fell from the canoe and holding the child at the time and unable to save herself from drowning.

We are unpersuaded that these matters give rise to a reasonable doubt about the appellant’s guilt. Aside from there being no evidence that the appellant was influenced at all by the threats of the relatives of the deceased, such threats would be more likely to produce denials of guilt than admissions. Nor was there any evidence that the appellant was influenced by the length of his stay in custody to give his accounts to the police which, at all events, was not exceptionally long. The records of interview must be read as a whole: not only the description of events but the course of answers to the questions demonstrate, we think, that the learned trial judge’s conclusion that they were not concocted is correct. If it be accepted that the confessions were true, then the possibility that May and Everlyn met their deaths by misadventure is decisively refuted.

Because of the doubts about whether the appellant’s evidence formed part of the evidence in the trial proper, we have also carefully examined that evidence, bearing in mind that if it was reasonably possible that it was true, the appellant must be acquitted. We have borne in mind that Muria CJ – who had the opportunity of personally assessing the appellant’s veracity – plainly rejected its truthfulness, although the test which his Lordship was required to apply was whether the prosecution had shown it to be probably untrue as distinct from untrue beyond reasonable doubt. Considering the evidence as a whole – including the exculpatory evidence of the appellant on the voir dire – we are not left with a reasonable doubt about the appellant’s guilt.

Accordingly, we would reject the remaining grounds of appeal.

It follows that the appeal must be dismissed and the convictions confirmed.

President, SI Court of Appeal
Judge of Appeal
Judge of Appeal